civil justice process Flashcards
class action lawsuits?
Individuals who may be able to sue come together against one party. There are restrictions on bringing class actions, and the judge involved must accept that:
* a legitimate class is formed
* that there is a legitimate representative(s) acting for the class, and
* that a remedy is available that will meet the needs of the class.
- Contingency fees are a sum of money that a lawyer receives as a fee only if the case is won.
- on the one hand, a large class action suit would have a large contingency fee for the lawyer, but on the other hand, also provides incentive that helps get representation for the class.
Purpose? Hold large corporations accountable with large amounts of resources.
civil vs. criminal recap
Civil
* One party wrongs, other requests compensation
* Society plays no direct role in resolution of dispute
* No public prosecutor; each party hires own council
Criminal
* Victim is at best a witness, but not a party in action
* Society plays a role
* Public prosecutor brings the case in the name of the state
class action lawsuits pros vs cons
Pros: number of people involved can show significance of case to the court, more efficient for our court system, strength in numbers, equalize resources on both sides, gets representation for a class who could not otherwise afford it
Cons: low compensation for individuals as so many are compensated for one case, defendants sometimes forced into unjust settlements, meaning corprations simply agree to settlements to get rid of publication.
agent orange class lawsuit 1979
judge Weinstein had to decide how funds are disputed. He decided: 1) payment program which gives disabled veterans and families of deceased vets 2) class assistance program which funds continued assistance for members of this class caused cancer during Vietnam war, shows discretion of judge as judge has power to decide how funds are distributed 2.4 million veterans. Fairness hearings, applications for payments from case
Walmart v dukes 2011
walmart greeter betty dukes joined together with 5 other women, alleging that company policies result in lower pay for women and longer wait for promotions, estimated class comprised of 1.5 million women and included all women employed by Walmart since December 26 1998.
-Walmart argues that class actions of this size are unmanageable and everyone should file as individuals, 9th circuit upholds class as legitimate. Supreme court reverses lower court opinion unanimously as the women across these Walmart’s are situated too differently
types of civil cases
- Tort- “An area of law that deals with the wrongful actions of an individual or entity, which cause injury to another individual’s or entity’s person, property, or reputation, and which entitle the injured party to compensation.” People are liable for their actions which harm others whether accidental or intentional. Examples: assault, battery, negligence, libel, slander, products liability, trespass, intentional infliction of emotional distress. Slander: verbal, libel: written defamation of character.
Government officials have less protection from libel because of 1st amendment - Contracts- duties imposed by law through voluntary agreements
- Real property cases- trespass, ownership, rights of way
- Estates- questions of wills and trusts
- Domestic relations- one of the largest categories; divorce, custody, adoption
- Small Claims- provide simpler, faster, and cheaper resolutions for minor disputes. Civil actions valued at 5k or less in NC, can vary depending on state
one shotters vs repeat players
One shotters hardly go to court, only when something serious happens. Repeat players have repeatedly been to court.
* What advantages to repeat players have over one-shotters? Lots of resources, money, experience, works with corporations.
* What is one area where one-shotters appear to be doing relatively well? Why? Personal injury, personal injury lawyers are experienced and inexpensive, so one-shotters do well as they have access to these highly knowledgeable attorneys.
lawyers and attorneys
lawyers tell the client:
-what the law says about the case
-what can happen next in the normal course of events.
-and what the lawyer intends to do about the case.
Must determine whether the client has a case and what the client wants.
civil process step 1: complaints
file a civil complaint with the court.
The complaining party:
* identifies the defendant.
* summarizes the facts and the harm suffered.
* explains what remedy is sought.
Defendant has a certain amount of time to file an answer with the court.
If no answer is filed:
* Implies an admittance of liability.
step 2: discovery
refers to the pre-trial exchange of information by the parties.
It can involve different methods, including:
* Depositions- sworn testimony of witness outside of court, information that can be used by both parties. If witness refuses, they can be subpoenaed.
* Interrogatories- written facts requested.
* Document requests- worked out between attorneys, judge may issue subpoena if information is not turned over.
step 3: trial
- there is no constitutional right to counsel.
- There is no federal constitutional right to a jury trial applied to the states.
- When there are juries, they do decide damages. Other than in capital cases, they rarely decide punishment in criminal matters.
- Burden of proof is much lower - preponderance of the evidence or clear and convincing evidence standard.
step 4: judgement
- compensatory damages- made to compensate victims, i.e., pay hospital bills, replace property.
- punitive damages- punishment, i.e., replace things of a high cost. Used when compensatory damages won’t be a deterrent.
- an injunction- court order to stop action before it happens.
- a specific performance-
if an appeal follows, the process is the same for criminal cases.
step 5: execution
- It is particularly important when the losing party is ordered by the court to do something and fails to do so - enforcing judgement.
- If the order involved monetary damages, then there are avenues for the winning party to pursue, such as:
- attachment of property of the defendant
- taking a lien on the property of the defendant
- garnisheeing his or her wages
- holding the non-complying party in contempt by the court.
litigation explosion?
Refers to supposed tendency of Americans to resort to courts in large numbers. Is this true? While the numbers are high, they are not extreme from a global standpoint. Higher rates of litigation in the past than now. What can cause disparities? Large populations, tend to handle more in court, liberalization of divorce laws in the 1970’s. Bottom line: there is a debate. Perception is that there is one.
tort reforms
Tort reform attempts to introduce changes to the tort system to either reduce the number of cases brought or reduce the possible damages that can be awarded.
What are Tort Tales? Adds to dialogue about tort reform
4 components:
1. short cases (which may or may not be true
2. emphasize poor judgment by the victim
3. he blamelessness of the defendant
4. greed as the motivating factor.
Reforms: Cap the amount someone can earn from a lawsuit, cap punitive damages, cap contingency fees, abolish joint liability, be stricter on the formation of class action, fee shifting (winner pays losers fees).
