After completing the assigned reading for this module, complete the following:
1 Review the sample brief on pp 25-28 of your text book.
2 Using the sample brief and your brief instructions as a guide, prepare a case brief on one of the following cases.
Salmon V. Atkinson (P. 192)
Dorsey v . Gregg(P . 199)
Libbey V . state Farm (P.203)
Richmond v> Lowa (p.212)
this dropbox basket is linked to turnitin.
Introduction to law and legal system POL-123-DL01
Instructor: Cynthia martin
Saint Leo University
for this module , you are required to read the following chapter V
POL 123 – Module 3 Lecture Notes
Why do we have civil procedure, and why would we need to use these rules? Courts are neutral, and a
court cannot act until it has been asked to act. Therefore, rules are needed to determine the correct
process used to decide the merits of a dispute. These types of rules are needed to make sure the plaintiff
and the defendant conduct themselves in proper manner. Procedural rules are necessary to make sure
the documents are prepared correctly and that the documents contain relevant information. The rules also
determine how these documents are presented to the court.
Rules and procedure also ensure that evidence can be obtained and shared between the parties. The
main objective of civil procedure is to make sure that all parties to a dispute have an equal and fair
opportunity to present or dispute their case.
All procedures used by the courts must satisfy constitutional due process requirements (which we
discussed in Module 2).
There are different rules of procedure in different jurisdictions. Depending on the type of civil case and the
issue presented, states and the federal government have promulgated separate rules of civil procedure
that govern the litigation (law suit) process. In Florida, for example, the state courts follow Florida rules of
civil procedure. Federal courts follow the Federal Rules of Civil Procedure. Courts may also have local
rules of procedure that they follow.
How Does a Lawsuit Work?
The first step in the lawsuit is when the plaintiff files the first pleading. Pleadings include written
documents filed by the plaintiff to commence a lawsuit, and the documents filed by the defendant in
response to the lawsuit. Thus, pleadings include the complaint, defendant’s answer, and plaintiff’s reply to
The Federal Rules of Civil Procedure and state rules of civil procedure tell us the types of pleadings that
are permitted. The federal rules of civil procedure, along with the state and local rules of court, also
govern the format and content of the pleadings. So, in the plaintiff’s pleadings, the plaintiff must establish
the court’s jurisdiction, must state facts giving rise to the complaint and basis for recovery, help form the
issues, and tell us what relief the plaintiff wants. The pleadings are filed with the court, and copies are
served to the opposing party.
Once served, the defendant files its answer. Considered a responsive pleading, it responds to the
plaintiff’s complaint. In the answer, the defendant admits or denies plaintiff’s allegations. If an allegation is
admitted, it does not need to be proved at trial. Denials on the other hand create factual issues that have
to be determined by the finder of fact (i.e. judge or jury) at trial. In the answer, the defendant also asserts
legal defenses. These defenses are facts that would bar plaintiff from recovery. An example of legal
defenses would be statute of limitations (the issue is too old); statute of frauds (it was not written);
unclean hands (the plaintiff has some liability here); and lack of consideration (if there is no consideration,
there is no contract).
Pleadings: The Counterclaim
Plaintiff (P) discovers defendant (D) fishing in her lake without permission. P tells D to leave. As D is
leaving, P throws D’s fishing bucket at the back of D’s head, hitting him. P sues D for trespass and
damages for the value of the fish. D could file a counterclaim for battery against P.
In the answer, the defendant may also raise a counterclaim. A counterclaim is a claim the defendant
makes against the plaintiff that arises from the same triggering event. Defendant must have a cause of
action from the same facts or circumstances. In this example, plaintiff has sued defendant for fishing in
her lake without permission. Plaintiff has brought a suit for trespass against defendant, and wants the
court to award her monetary damages based on the value of the lost fish. While defendant was allegedly
trespassing, plaintiff threw the bucket at defendant, and injured him. Since plaintiff’s actions and
defendant’s injuries arose at the same time, during the same factual circumstances, defendant can file a
counterclaim against plaintiff in this same lawsuit.
I Filed the Lawsuit…Now What?
Now that the lawsuit has been filed with the courts, the plaintiff has to serve the lawsuit on the defendant.
When the lawsuit is filed, the clerk must first issue a writ of summons. The summons lets the defendant
know that a lawsuit has been filed against her. It informs the defendant that a default judgment can be
awarded if defendant fails to respond (or answer) the lawsuit, and notifies the defendant of the number of
days she has to respond to the lawsuit. (In Florida, for example, once served, most defendants have 20
days to respond.) The summons is given to the process server or sheriff, and is delivered to the
defendant by hand. This is part of our due process rights—to be informed of any lawsuit against us. If the
defendant is not served, the lawsuit cannot move forward or is dismissed. There are multiple methods of
serving lawsuits, and if the plaintiff is unable to serve the defendant in person, the plaintiff can use
substitute service by serving a representative of defendant, or constructive service or publication. In your
textbook, Dorsey v. Gregg was a case that examined the issue of whether a defendant had been properly
notified of a pending lawsuit.
Proceedings Before Trial
Okay, I’ve filed the lawsuit, served the defendant, who has submitted her answer, and I’ve replied to the
answer. Now what? The next phase of the litigation process is the motion practice/pretrial motion phase.
At this point, plaintiff thoughts are “how do I find as much information as I need to prove my case?”
Defendant thoughts, on the other hand, are “how do I get rid of this case, or at least shield myself from
the most liability?” The way to do this is through the use of motions. There are quite a few different types
of pretrial motions, including the motion to dismiss the case because of failure to state cause of action,
improper venue, improper service, lack of subject matter jurisdiction, or lack of personal jurisdiction. If the
judge grants the motion, the case is dismissed (but the plaintiff has the ability to amend the complaint and
refile). If the judge denies the motion, the defendant must submit an answer to the complaint.
Another type of pretrial motion includes motion for summary judgment, which is used to dispose of a case
prior to trial. Discovery is also completed before trial. This is used to prevent surprise attacks, and so that
both sides have equal access to all the evidence (or relevant facts). Each side is entitled to information
that is in the possession of others. Discovery includes identity, location of persons or documents, known
facts, and expert opinions. It is important to note that obtaining discovery is different from whether it can
be used in trial, and the information sought must be relevant. Tools of discovery include depositions,
written Interrogatories, request for production of documents, request for production of things, and request
for admissions. The use of discovery gives us the opportunity to find out the strengths of our case and
also weaknesses. The failure to comply with discovery requests can result in sanctions, like in the Carter
v. State Farm case.
Civil Trials and Evidence
The parties have the option of settling the case in advance through a process known as alternative
dispute resolution. If the parties cannot resolve their differences through negotiations, settlement, or
mediation, then the trial must go on! Trials are like plays or performances. You have actors, you have
costumes, you have drama. What you don’t have is that surprise witness coming from the back of the
courtroom, ready to testify in an ambush against the other party. No, no, no, because as there are rules of
procedure, there are also rules governing evidence. Federal cases are guided by the Federal Rules of
Evidence, and states also have rules of evidence. Evidence in a trial must be relevant. Relevance means
it must logically tend to prove or disprove an issue that is in dispute in trial. Evidence must also be
competent. Competency means legally adequate.
The evidence presented must be the best evidence for what it is used to prove. So in a contract case, the
written contract is better than the oral testimony of the parties to the contract. Secondary evidence is
admissible if the best evidence is not available, as long as the reason for unavailability is not for malicious
reasons. One of the types of testimonial evidence we often hear about is hearsay. The hearsay rule
excludes testimony that is not based on personal knowledge of the witness, but is from the witness
repeating what another said or wrote outside of court, and is offered to prove the truth of what was said or
written. Reasons for the hearsay rule are that the declarant could have been lying, joking, or the witness’
recollection could be poor. There are exceptions to hearsay, however. If the statement was made by a
declarant while believing that the declarant’s death was imminent, it could be allowed in court. Another
example is the statement against interest, which is a statement which was at the time of its making so far
contrary to the declarant’s interest, or so far tended to subject the declarant to civil or criminal liability, or
to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s
position would not have made the statement unless believing it to be true. There are many other
exceptions outlined in the rules of evidence. Let’s look at an example in action.
A witness says “Janette told me Leo was in town” as her evidence to the fact that Leo was in town. Since
the witness does not offer in this statement the personal knowledge of the fact, this witness statement
would be hearsay evidence to the fact that Leo was in town, and not admissible. Only when Janette
testifies herself in the current judicial proceeding that she saw Leo in town, that Janette’s testimony
becomes admissible evidence to the fact that Leo was in town. However, a witness statement “Janette
told me Leo was in town” can be admissible as evidence in the case against Janette when she is accused
of spreading defamatory rumors about Leo, because now the witness has personal knowledge of the fact
that Janette said “Leo was in town” in the presence of the witness and it is an opposing party’s statement
that constitutes a verbal act.