| Chapter
9
Covering
Civil Courts
By Maurice
Possley
Summary Judgment
After the motion to dismiss, perhaps the most significant motion that is filed
during the pre-trial stage of a civil case is a motion for summary judgment.
This motion—filed by either or both sides—essentially makes the argument
that the facts in the case are not in dispute and that a judge can decide the
case based upon the law. These pleadings may be of news value because they often
contain excerpts of significant depositions and key documentary evidence. It
is important to note that if a judge decides that even a single fact is in dispute,
a motion for summary judgment cannot be granted. The denial of such motions rarely
makes news because it simply means the case will go forward toward trial, while
granting of such motions may well be newsworthy.
Other pre-trial motions that may be filed include:
--To take or compel the depositions of parties or other witnesses
in the case.
--To amend the complaint by the plaintiff, typically after learning
of new evidence during the discovery process. Such a motion may
also be filed following judicial rulings that may knock out part
of the plaintiff’s lawsuit.
--To answer questions, known as interrogatories. This is a form
of written deposition in which either side poses questions that
are answered under oath.
--To file affirmative defenses. These are defenses to a lawsuit
that essentially state that even if the allegations of the complaint
are true, the plaintiff cannot prevail.
--To file a counterclaim. A defendant may seek to counter-sue
a plaintiff.
--To show cause. This is an order made by the court, in a particular
case, upon motion of one of the parties calling upon the other
side to appear at a particular time before the court, to show cause,
if there is any, why a certain thing should not be done, such as
comply with a subpoena for testimony or documents.
--To prohibit or bar certain evidence. These motions in limine are
designed to keep evidence out of an eventual trial because the
introduction of the evidence during trial would either violate
a constitutional right or would violate either the state or federal
rules of civil procedure. These motions can be important and newsworthy
at times. For example, in the tobacco litigation, lawyers for the
tobacco companies filed motions seeking to have the plaintiffs’ lawyers
representing sick smokers from using damaging internal tobacco
industry documents from being used as evidence during the trial
because the companies claimed the documents were confidential work
product produced by the cigarette makers’ lawyers. The judges
disagreed, saying the documents, in which the tobacco executives
secretly admitted that nicotine was addictive and that cigarette
smoking was dangerous, were admissible.
There are many other motions that may be filed during this evidence-gathering
and refining period. Some may be of news value, most likely will
not. Because much of the evidence that is gathered during this
time is not filed in court, little becomes publicly known about
civil cases unless these motions become the subjects of dispute
that are aired during court hearings.
As these cases proceed toward trial, a judge may require that
both sides submit to a meeting with a court mediator. Increasingly,
court jurisdictions are establishing mediation programs—also
known as alternative dispute resolution programs—in an attempt
to reduce the number of civil cases that go to trial. The intent
was to speed up the disposition of cases and to reduce the costs
of litigation for parties as well as the court. These sessions
are typically conducted in private and generally do not become
public.
Arbitration and Mediation
Binding mandatory arbitration has become the focus of bitter litigation as
financial and other consumer companies are increasingly adding clauses to
contracts that require customer disputes to go to binding mandatory arbitration
instead of court. The clauses can be found in a wide variety of agreements,
including with credit card companies, mortgage institutions, software suppliers,
and hospitals. (In March 2005, a North Carolina judge struck down an arbitration
clause in a lawsuit against a Citigroup Inc. unit, ruling that an arbitration
clause was unfair and unenforceable, citing excessive fees, a loser-pays
provision and restrictions on class-action claims. If the case is allowed
to proceed as a class action, it could involve as many as 25,000 borrowers
in that state.)
Mediation is an effort by a judge to help the two parties negotiate
in order to seek a common ground, and eventually a settlement.
But some judges also are ordering parties in higher stakes litigation
to present their cases to what is called “summary jury trials.” These
are used by judges as a reality check to show lawyers and clients
on one or both sides that their case is not as strong as they perceived.
Typically, each side presents its strongest arguments and evidence
in a summary manner in less than one day to real jurors, who then
deliberate and reach a non-binding verdict.
Before a civil case comes to trial, attorneys for both sides usually
hold at least one and frequently more than one pre-trial conference
with the judge who will preside over the trial. These pre-trial
conferences may result in cases being settled as judges hear presentations
from both sides about their evidence and begin to make assessments
about what evidence will be allowed and what evidence will be barred
at trial.
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