UNIT 2

THE LITIGATION PROCESS

Part 1

Vocabulary

litigation	судебный процесс, судебное разбирательство
resolve a dispute	разрешать спор; урегулировать спор
civil procedure	гражданский процесс, гражданское судопроизводство, гражданское процессуальное право
implement substantive rules of law	применять нормы материального права
conform to concepts of fairness	соответствовать принципам справедливости
public affirmation of belief in justice	общественное подтверждение веры в справедливость
litigant	сторона в гражданском процессе
adversary system (syn.: adversarial system)	состязательная система
fair process	справедливое судебное разбирательство
in support of a case	в подтверждение версии
represent the relevant facts	представить фактические обстоятельства, относящиеся к делу
legal argument	правовое обоснование, юридический довод
decision-maker	лицо, принимающее решение; судья
decide the matter solely	выносить решение по делу единолично
review the adjudication	пересмотреть судебное решение
appellate court	апелляционный суд
finality	окончательный характер судебного решения
be subjected to endless relitigation	подвергаться бесконечным повторным процессам
efficient	эффективный
become unbearably cumbersome	стать невыносимо громоздким, трудоемким
fair and effective litigation process	справедливый и эффективный судебный процесс
burdens of expense and delay	зд. тяжесть покрытия издержек и проволочек при рассмотрении дел
sexual harassment claim	иск с обвинениями в сексуальном домогательстве
civil rights claim	иск с обвинениями в нарушении гражданских прав
sue	преследовать в судебном порядке; подавать в суд; предъявлять иск
adversarial	состязательный
investigate the facts	проводить расследование по фактическим обстоятельствам
present witnesses and evidence	представлять свидетелей и доказательства
encourage settlement	поощрять, стимулировать стороны к заключению мирового соглашения
file a complaint	подавать иск
plaintiff	истец
defendant	ответчик
remedy (syn.: recovery, relief)	средство защиты прав, средство исковой защиты
small claims court	суд мелких тяжб
serve several purposes	служить нескольким целям
ultimate decision	окончательное решение
summons	судебная повестка; вызов в суд
summon the defendant to respond (to)	вызвать в суд в качестве ответчика по делу
charge	обвинение
service of process	вручение судебного документа, процессуальное извещение
process server	судебный курьер; посыльный из суда; должностное лицо ведомства шерифа с исполнительными функциями (вручение приказов о вызове в суд и т.д.)
merits of a case	обстоятельства дела; существо дела
motion to dismiss	ходатайство о прекращении иска; ходатайство об отклонении иска
challenge the legal sufficiency of the plaintiff’s complaint	оспорить правовую обоснованность претензий истца
demurrer (syn.: a motion to dismiss for failure to state a claim; a motion to dismiss for failure to state a cause of action)	процессуальный отвод; возражение (по поводу отнесения доводов к делу противной стороны)
file a pleading	предоставить основания возражения против иска; подать иск
answer	возражение ответчика по иску
discovery	раскрытие, предоставление сведений, документов; процедура раскрытия доказательств
adversary	противник, противная сторона
interview under oath	допрашивать под присягой
deposition	снятие показаний под присягой; письменное показание под присягой (свидетеля уполномоченному должностному лицу; вне суда, если свидетель не может присутствовать на суде)
interrogatories	письменный опрос сторон или свидетелей
submit to a physical examination	согласиться на медицинский осмотр
legal research	изучение законодательства и правоприменительной практики; изучение положений закона, судебных решений и прецедентов
pretrial conference (syn.: prehearing conference)	распорядительное совещание суда перед началом слушания дела
alternative dispute resolution	альтернативные способы разрешения споров
mediation	медиация; посредничество; процедура примирения сторон
opening statement	вступительная речь
bear the burden of proof	нести бремя доказывания истинности делаемых утверждений о фактах и событиях
rebuttal witnesses	свидетель, дающий опровергающие показания (показания в опровержение)
closing statement	заключительная речь
sum up the case	подытожить версию (позицию) стороны
deliberate and return the verdict	обсудить и вынести вердикт
unanimous verdict	вердикт, вынесенный единогласно
bench trial	суд без участия присяжных
render a decision	вынести решение
appeal the case to a higher court	обжаловать решение суда в вышестоящем суде; подавать апелляцию в вышестоящий суд

Exercise 1.

Before reading the text discuss with your group mates:

1. What can happen in subcultures in which litigation is unavailable (e.g. among drug-dealers)?

2. To what extent does a judicial system based on chance (e.g. when a judge could simply flip a coin to decide who wins) violate our beliefs about fairness?

Read the text

Civil Procedure

(abridged from “Law 101. Everything You Need to Know About

the American Legal System” by Jay M. Feinman)

Litigation is the legal system’s mechanism for resolving disputes between private parties; civil procedure is the body of law that structures the mechanism. The first task of civil procedure is to implement substantive rules of law and the values and policies on which they are based. Civil procedure has a second task, too. Civil procedure has an independent value in creating a litigation process that conforms to our concepts of fairness. A fair procedural system provides a public affirmation of our belief in justice under law. It also affirms the dignity of the individual litigants and of others like them. Under an adversary system, as developed in the United States, fair process has several essential components. Parties to litigation must have an opportunity to adequately develop the facts and law in support of their cases and to represent the relevant facts and the legal arguments to the decision-maker. In the typical case, the parties must have a right to have a jury determine the facts of the case. The jury and judge must be neutral to both parties, must listen to their evidence and arguments, and must decide the matter solely on the basis of the evidence and arguments presented. The parties must be able to have the adjudication reviewed for error by an appellate court and to have serious errors corrected. After review, the decision must have finality, so the parties cannot be subjected to endless relitigation of the same issues. Finally, in order to be fair, civil procedure must be efficient. If litigants had unlimited opportunities to present their cases, litigation would become unbearably cumbersome, time-consuming, and expensive. Moreover, the litigation system is a social resource that the government provides to individual citizens. There is undeniable benefit to individuals and the society as a whole from fair and effective litigation process. Accordingly, procedural rules have to balance the benefits of better process against the burdens of expense and delay.

Litigation begins with a dispute between two or more people, companies, or institutions. Any kind of dispute can get the process going: an automobile accident, a broken contract, a sexual harassment claim by an employee, a civil rights claim against the government. If the disputants cannot settle their problem themselves, they can hire lawyers to negotiate, or otherwise try to resolve the dispute. If that doesn’t work either, then it’s off to court.

Civil litigation is essentially adversarial, which means that it is a contest between the parties, and the lawyers for the parties have the primary role in shaping the litigation. The lawyers decide whom, where and when to sue, what legal issues to raise, how to investigate the facts, and what witnesses and other evidence to present. The judge is the referee who makes sure that the lawyers follow the rules of the game and ultimately decides the case, or supervises a jury in its decision of the case. The pure model of the adversary system is never entirely observed in practice, however. Especially in recent years, as the volume of cases has mounted and courts have become more crowded, judges have become more inclined to encourage settlement and to manage the cases in front of them by trying to narrow the issues.

A lawyer begins a suit by preparing and filing with the court a document known as a complaint in which, as its name suggests, the plaintiff (the person who is suing) complains that the defendant (the person who is being sued) violated his legal rights and asks the court for a remedy. The law does not require that a lawyer files the complaint or otherwise represents the plaintiff. Anyone can represent himself – the term for this is pro se, Latin meaning “for oneself”. As a practical matter, outside a small claims court a lawyer is a necessity. The information provided in the complaint serves several purposes. First, it lays the basis for the jurisdiction of the court. Second, it notifies the defendants that they are being sued and why they are being sued. Third, it frames the issues of fact and law that will be involved in the case. By going through the elements of the cause of action, the complaint tells the parties and the judge what will be relevant to the ultimate decision in the case. Attached to the complaint is a summons, a document from the court that summons the defendant to respond to the charges. The plaintiff must cause service of process on the defendant by a sheriff, process server, or mail, depending on the rules of the court in which the case is filed. The summons typically directs the defendant to answer the complaint, but the defendant actually has a number of different ways of responding to being sued. First, the defendant can simply ignore the whole thing and a judge may pass a default judgment. Second, the defendant can raise an objection to being sued that is unrelated to the merits of the case. The objection takes the form of a motion to dismiss. A motion is a formal request to the court. Third, the defendant may challenge the legal sufficiency of the plaintiff’s complaint. This procedure was classically known as a demurrer, and is today more commonly referred to as a motion to dismiss for failure to state a claim or failure to state a cause of action. Fourth, if the defendant has no basis for making a motion to dismiss the complaint, or if any motions to dismiss fail, the defendant finally has to meet the complaint on the merits of the case. The defendant does this by filing a pleading called an answer, which answers the allegations made in the plaintiff’s complaint.

Traditionally, the complaint and other pleadings were the exclusive means of defining the issues in the case for the parties and the court. In order to serve the values of the substantive law and provide fair process, judges have relaxed the pleading requirements, and the process of defining the issues in the case begins with the complaint but continues through the discovery and pretrial stages of the case.

At the discovery stage the parties have an exclusive opportunity to obtain information that is in the adversary’s possession. A party can interview the other party under oath, called a deposition; submit written questions, called interrogatories; demand documents or other physical evidence be produced; require the other party to submit to a physical examination; and ask the other party to admit the truth of facts relevant to the litigation. Pretrial discovery has significant advantages over a system of trial in achieving a fair and efficient process, and in promoting the values of the underlying substantive law. It focuses the recollection of witnesses at an early stage and preserves information that otherwise might not be available at the time of trial.

Discovery takes up a large portion of the pretrial process, but the period before a case comes to trial is also filled with legal and factual research, negotiations between the parties, motions to the court on procedural or substantive issues, and other proceedings to move the case along. The judge may use the pretrial conference as an occasion to persuade and pressure the attorneys to settle the case before trial. Many jurisdictions have instituted mandatory programs of alternative dispute resolution: cases may be referred for arbitration, mediation, or a mini-trial.

Even though only a small number of civil cases ever go to trial, the trial is the central event in litigation. If the parties choose to have their case tried by a jury, the first step is to select the jury. Once the jurors are seated and the judge has given them an introduction to what will happen, the plaintiff’s attorney makes an opening statement, explaining the case. Then the defendants’ lawyers will have their turn to lay out their view of the case. After the opening statements the plaintiffs begin presenting evidence that support their view of the case. The plaintiff always goes first because the plaintiff bears the burden of proof. After the plaintiff presents its evidence, it is the defendant’s turn. Like the plaintiff’s lawyer, the defense lawyer calls and examines witnesses to support its side of the case. When the defendant has finished, the plaintiff may have a chance to present rebuttal witnesses, addressing issues raised by the defense. When everybody is finished, each side makes a closing statement to the jury, summing up its case. Then the judge instructs the jury on the law, and the jury deliberates in private and returns its verdict. In many jurisdictions, the traditional requirement of a unanimous verdict by a twelve-member jury has been reduced in favor of smaller juries (often six) and nonunanimous verdicts. In a trial to the judge without a jury (a bench trial) the judge does not need instructions on the law and she may take some time instead of rendering her decision immediately.

The trial isn’t necessary the end of the story. The losing party, or even a party who wins only part of what it wanted, can appeal the case to a higher court.

Exercise 2.

Decide whether these statements are true or false.

1. The only purpose civil procedure serves is to regulate how litigation proceeds.

2. Under an adversarial system, fair process means the right of the parties to adequately develop the facts and law in support of their cases and to represent the relevant facts and the legal arguments to the judge.

3. All judgments are final and the parties are not entitled to having the judgment reviewed by a higher court.

4. According to the text, efficiency means the limitation of opportunities available to the parties to present their cases in order to prevent litigation from becoming unbearably cumbersome, time-consuming, and expensive.

5. Civil litigation is essentially inquisitorial, which means that it is a contest between the parties, and the lawyers for the parties have the primary role in shaping the litigation.

6. Judges tend to encourage parties to go to court.

7. In order to serve the values of the substantive law and provide fair process, judges have softened the pleading requirements, and the process of defining the issues in the case begins with the complaint but continues through the pretrial procedures and stages.

8. The judge may not use the pretrial conference as an occasion to persuade and pressure the attorneys to settle the case before trial.

9. Only the losing party can appeal the case to a higher court.

10. The procedure of litigation is extremely comprehensible and unambiguous.

Exercise 3. Match the legal terms on the left (1-12) with their definitions on the right (a-l).

	civil procedure		the determination of a dispute and pronouncement of judgment
	substantive law		delivery of a pleading, notice or other paper in a suit, to the opposite party; communication of the substance of the process to the defendant, either by actual delivery or by other methods
	procedural law		the body of rules of practice to be adhered to in adjudicating a dispute before a court of civil, as opposed to criminal, jurisdiction
	adjudication		a claim in law and fact sufficient to form the basis of a valid lawsuit, as a breach of contract
	appellate court		a party’s request to a court to dismiss a case because of settlement, voluntary withdrawal, procedural defect or claim is one for which the law provides a remedy
	service of process		formal allegation that facts as stated in the pleadings, even if true, are not legally sufficient for the case to proceed further (in modern procedure it is substituted by a motion to dismiss for failure to state a claim upon which relief may be granted)
	merits		alternatives to the slow and costly process of litigation, including arbitration, conciliation, mediation and summary proceedings
	cause of action		the positive law that creates, defines and regulates the rights and duties of the parties and that may give rise to a cause of action
	motion to dismiss		a court having authority to review the law applied by the lower court in the same case
	demurrer		An agreement between two litigants to resolve a matter privately before the court has rendered its decision
	alternative dispute resolution		the body of rules for carrying on the suit, including pleading, process, evidence and practice
	out-of-court settlement		the essential issues or the main question which is at issue in an action

Exercise 4. Complete the sentences using the terms from Exercise 3. Compare and discuss with your partner.

1. Most lawyers are always in favor of an ___________________ because the cost of taking a claim (a dispute) to court is usually quite high. When a dispute can be settled without intervention of the courts, it is most often the best outcome.

2. A ________________ may be filed at any time during the litigation process. The party must state in detail why there is enough factual evidence and legal basis to have the lawsuit dismissed.

3. In the law, a _________________ is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party.

4. ________________ prescribes the means of enforcing rights or providing redress of wrongs and comprises rules about jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, and other matters.

5. Procedural law is commonly contrasted with _________________, which constitutes the great body of law and defines and regulates legal rights and duties.

6. Each jurisdiction has rules regarding the means of ________________. Typically, a summons and related documents must be served upon the defendant personally.

7. _______________ generally refers to processes of decision making that involve a neutral third party with the authority to determine a binding resolution through some form of judgment or award.

8. Adjudication can also take place outside the court system in the form of _______________________ processes such as arbitration, private judging, and mini-trials.

9. ________________ is a legal concept referring to the inherent rights and wrongs of a legal case, absent of any emotional or technical biases.

10. In a _________________, the defendant argues that even if the plaintiff's facts are true, those facts simply do not establish legally cognizable harm for which the law grants a remedy.

Exercise 5. Match the verbs on the left (1-12) with the nouns or expressions on the right (a-l). Translate the expressions. Use those expressions in sentences of your own.

	to resolve		to endless relitigation
	to implement		the matter solely
	to conform		several purposes
	to determine		the adjudication
	to decide		to concepts of fairness
	to subject		the burden of proof
	to review		the verdict
	to serve		disputes
	to attach		a case
	to dismiss		substantive rules
	to bear		the facts of the case
	to return		to the complaint

Exercise 6. Study the terms adjudication, case and process. Look up these terms in dictionaries to translate them into Russian. Read the definitions given below and translate the sentences into Russian paying attention to the meaning of the underlined terms.

1. Adjudication – 1. the action of making a formal judgment or decision about a disputed matter or a problem; 2. an official document outlining the reasons behind a formal judgment or decision in a disputed matter or a problem

1. In an adjudication the judge said the bank's closure of one such customer's account was neither fair nor reasonable. 2. An independent adjudication into the claim found London Underground (LU) was not to blame for delays and cost increases. 3. Mr Martin said the adjudication was 'unbalanced' and said he would seek a judicial review in the High Court. 4. An investigation found that tens of thousands of Holyrood votes were rejected without any human adjudication.

2. Case – 1. a lawsuit or legal action; 2. evidence, arguments, facts and reasons that can be given in support of or against something, especially in a law court or other formal setting

1. Cheltenham Borough Council has decided not to appeal against a High Court ruling in a £1m court case. 2. Nine Law Lords unanimously ruled it was unfair that individuals should be kept in ignorance of the case against them. 3. The concept of case-by-case adjudication means that each case or issue is handled separately on its own merits. 4. The defendant's statement of the case was different from that of the plaintiff

3. Process – 1. a series of actions taken in order to achieve a result; 2. a document issued by a court to order the attendance of the parties (especially of the defendant) at a trial; a document issued by the court ordering the defendant in a legal action to perform some action

1. Current arrangements for the service of foreign court process in Australia will continue to apply. 2. The young lawyer went through the painstaking process of trial and error during his first trial. 3. Disputes and negotiations have slowed down the process.

Exercise 7. Choose the most appropriate word to complete the sentences.