English_for_Lawyers_2011

Unit 1. Civil Procedure. Section 2. Parties and Legal Proceedings in Civil Cases

Unit 1. Civil Procedure

Section 2. Parties and Legal Proceedings

in Civil Cases

I. LEAD-IN

1. Think over the following questions and discuss them in class:

−Who can be a party to a civil dispute?

−T here are some words below to help you to bring a suit, to fail to do smth., a plaintiff, to perform, to break/breach, to obtain legal relief from, the breaching party, the remedy for, a defendant.

−What stages of the litigation process are provided for by the Civil Procedure Code of Ukraine?

−T he text you are going to read contains information about various stages and procedures of the American litigation process. Before you read, think over the subject and try to predict notions or terms that might be used in the text. Discuss your ideas with your groupmates.

Read the text to understand if your predictions were correct:

TEXT 2

Notes:

1 prayer for relief – клопотання про надання судового захисту (задоволення вимог)

2 to stem from – бути результатом

3 to solicit – клопотати, звертатися з клопотанням про

4 to negotiate a contract – укладати угоду

5 deadlocked – склад присяжних, що не дійшли одностайної думки

6 mistrial – (амер.) судовий процес, в якому присяжні не винесли одностай-

ного рішення

PARTIES AND LEGAL PROCEEDINGS IN CIVIL CASES

Bringing, maintaining, and defending a lawsuit is generally referred to as the litigation process. The first phase of a lawsuit is the pleadings phase.

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The party initiating a lawsuit (the plaintiff ) must file a complaint with the proper court naming the parties to the lawsuit, the facts, and a “prayer for relief”1 which asks for the remedy sought.

Once a complaint is filed, the court issues a summons to the defendant to appear in court and answer the complaint either admitting or denying the allegations. If the defendant admits all of the allegations, a judgment will be entered against him/her, if s/he denies some or all of the allegations, the case will proceed. If the defendant does not answer the complaint, a default judgment will be entered against him or her. If the defendant believes that the plaintiff has injured him/her in some way, a cross complaint, alleging damages sought by the defendant, can be filed along with the answer to which the plaintiff must file a reply. Other parties who may have an interest in the lawsuit may intervene and become parties to the lawsuit. If several plaintiffs have filed separate lawsuits stemming from2 the same fact situation against the same defendant, the court can consolidate the cases into one case.

The elements of discovery can include: depositions (oral testimony given by a party or witness prior to trial that is used to preserve evidence), interrogatories (written questions submitted by one party to a lawsuit to another party that usually must be answered under oath within a specified period of time), production of documents (one party to a lawsuit may request another party to produce relevant documents), and physical or mental examinations (in cases where the physical or mental condition of a party is important).

In some cases when it is in the client’s best interest to settle the case rather than take it to trial, the attorney may make or solicit3 a settlement offer. If all parties agree, a settlement agreement, a contract between the parties or a release is negotiated4 that results in the dismissal of the claim. The following pretrial settlement motions can be made: motion for judgment on the pleadings (alleges that if all the facts in the pleadings were true, the party making the motion would win), motion for summary judgment (asserts that there are no factual disputes to be decided by a jury and that the judge should apply the law to the undisputed facts and decide the case), and settlement (a pretrial hearing or conference with the judge, attorneys, and parties to facilitate settlement of the case).

Once a case has proceeded through discovery and other pretrial motions a date for trial is assigned. The order of presentation commonly is as follows. Plaintiff ’s counsel followed by defendant’s attorney each makes

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opening statements, explaining what they intend to prove. The plaintiff ’s witnesses and evidence are examined and cross-examined. Then the defendant’s witnesses and evidence are introduced, with similar rights of examination and cross-examination. After the evidence has been submitted, each side makes closing arguments summarizing the evidence supporting their respective positions. Plaintiff again typically summarizes first, but has a right of rebuttal after the defendant’s closing remarks have been made. If there is no jury, the judge then will evaluate the evidence and render a judgment. If a jury is present, the judge instructs the jurors as to the law to be applied. The jury then retires to deliberate in order to render its verdict. If the jury returns with a verdict, the judge will enter a judgment on it. In case the jurors report that they are deadlocked5, the judge may send them back for additional deliberations. But if that fails to break the deadlock, then a mistrial6 will have to be declared.

II.DEVELOPMENT

1.Find in the text the information on:

a)the main stages of civil proceeding;

b)the pretrial settlement motions;

c)the pleading phase;

d)the elements of discovery.

2.Use the text to fill in the table with the words and expressions related to:

3.Make sure you are familiar with the words in the box. Read the text and fill up the gaps with the appropriate words:

Stages of Civil Litigation in the USA

complaint, answer, served, cause, attorney, admit, default judgment, claim, summons, plaintiff, counter-claim,

to interplead, defendant, defences, cross-claim

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To start a civil case pleading must be filed with the court, called a …1, naming the party against whom the case is brought, the …2. The person or organization filing the case is called the …3. Most civil cases are prepared and filed by an …4 paid for by the plaintiff. The complaint must state a …5 of action.

Next a …6 is issued, inviting defendant to come to court. The summons tells the defendant how many days he has to make appearance and file an …7. If he does not, a …8 may be entered against him.

Once …9 with summons, a defendant must appear and file an answer and …10 or deny the claim. Defendant may file a …11 against plaintiff for any other claim, even if totally unrelated to plaintiff ’s case (even a tort action countering a contract action). Defendant may file a …12 against another defendant or a single one of multiple plaintiffs. Defendant can request the court for permission …13 a party, who defendant thinks may be affected by the case and whose presence is needed for a full and final determination. Defendant can also file affirmative …14 such as set-off (зарахування вимог). In some cases if defendant has an affirmative defence, counter-claim, or cross-claim, and does not file it, he loses that …15 for all time.

4.Imagine you are a counsel for the defence in the USA. Explain the strategy of the case proceeding to your client.

Note: when you enumerate the different stages of a procedure, you may use particular phrases to structure the information you are presenting for better comprehension. For example:

First …, then …, next …, after that …, finally … .

The next thing/step is to …, once that’s been done …, before that happens you/we …, the last step will be to…/(…ing) … .

5.Translate articles from the Ukrainian Civil Procedure Code using words and phrases of the active vocabulary instead of the underlined lexical units:

Стаття 127. Надіслання копії

1.Після відкриття провадження у справі суд невідкладно відсилає особам, які беруть участь у справі, копії ухвали про відкриття провадження у справі.

2.Одночасно з копією про відкриття провадження у справі відповідачу надсилається копія позовної заяви з копіями доданих до них документів, а третій особі – копія позовної заяви.

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Стаття 130. Попереднє судове засідання

1.Попереднє судове засідання проводиться з метою з’ясування можливості врегулювання спору до судового розгляду або забезпечення правильного та швидкого вирішення справи.

2.Попереднє судове засідання проводиться суддею за участю сторін та інших осіб, які беруть участь у справі.

3.Для врегулювання спору до судового розгляду суд з’ясовує: чи не відмовляється позивач від позову, чи визнає позов відповідач, чи не бажають сторони укласти мирову угоду або передати справу на розгляд третейського суду.

III.PRACTICE AND EXPERIENCE

1.A. Read the text about the complaint form accepted in the USA:

The essential parts of the complaint are: the caption, jurisdictional

allegations, body, prayer for relief, and subscription.

a. Caption: the complaint must set forth: (i) the name of the court;

(ii)the number assigned to the action (stamped by the clerk when the action is filed);

(iii)a designation of the pleading (e.g., "Complaint for Damages"); and

(iv)the names of the parties.

b.Jurisdictional allegations: in federal court, the complaint must contain allegations showing the ground (or grounds) upon which the subject matter jurisdiction of the federal court is invoked. Since federal courts are courts of limited jurisdiction, a complaint that fails to set forth the jurisdictional grounds must be dismissed unless the ground can be supplied by amendment.

c.Body: the complaint must also contain a statement of the facts upon which recovery is sought. In code pleading states, this requires a "statement of the (ultimate) facts constituting the cause of action"; while under the Federal Rules there must be a "short and plain statement of the claim showing that the pleader is entitled to relief."

d.Prayer for relief: a complaint must also contain a prayer for relief, i.e., a statement of the relief sought.

e.Subscription: the complaint must be signed by the attorney (or by the party himself, where he is acting as his own counsel).

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B.Using the text decide what information an American attorney should obtain and what procedural rules he should consider to complete the document.

C.Imagine you are an attorney in the USA and your client was damaged by a business partner who broke, for example, a delivery contract. Invent a situation which may arise in real life and:

−explain the merits of your claim to the colleagues (groupmates)

2. INTERVIEW. Work in pairs.

Choose the role you’d like to play: One person is the interviewer (a journalist/a defence-lawyer/a friend or some other person of your choice) and the other – the interviewee (a defence-lawyer).

1.The interviewer. Prepare 10 questions to ask your groupmate, who takes the role of a defence-lawyer, about the case s/he is dealing with now.

2.The interviewee. Think about the possible questions his/her character might be asked and prepares answers.

Present the interview to your groupmates in the class.

IV. WRITING

1.Use the facts and language you have learnt in this Unit to compare the main points of civil procedure in the USA and Ukraine in written form.

The following phrases will help you to describe similarities and contrasts: as compared with, like, unlike, both, both … and, neither of, the same is true of.

V. OVER TO YOU

To practice the language, complete the following activity in your own time.

Write a brief report displaying the main features of civil procedure law in Ukraine to explain stages and the main procedures of a civil case proceeding in your country to foreign colleagues. Consider only the main points of legal proceedings on civil matters.

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Unit 2. Appellate Review. Section 1. Rules of Appellate Review

Unit 2. Appellate Review

Section 1. Rules of Appellate Review

I. LEAD-IN

1.Think about the subject of this section and get ready to discuss the following questions:

−What stages of legal proceedings does a civil case usually pass through? Which of them are post-trial ones?

−What types of trial court decisions do you know and which of them can be a subject for appellate review in Ukraine?

−Explain the term “court judgment without appeal”.

−What do you call parties to an appeal in your country? What are their English counterparts?

−What grounds for lodging an appeal are provided for by Ukrainian Civil Procedure Code?

2.Write out of a dictionary the phonetic scripts of the words given

below. Group the words according to spelling differences and compare the pronunciation of bold letters using the phonetic scripts. Memorize the words spellinf and their respective pronunciation.

appeal, appellate, appealable, to appeal, appellant, appellee.

3.You have a minute to make up all possible word combinations with the words from exercise 2 which might be used in the text.

Read the text and continue the list of word combinations in exercise 3:

TEXT 1

Notes:

1 rules and practices – процесуальні норми та судові процедури

2 on specific grounds – на певних підставах

3 due process – процедура розгляду справи з належним дотриманням норм

процесуального права

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4in a lawful manner – законно, правомірно, у відповідності до закону

5in the course of the case – у ході справи

6damages – відшкодування збитків

7underlying constitutional or legal principles – основні конституційні та правові принципи; принципи, що лежать в основі конституції та законів 8in an improper manner – неправомірно, неналежним чином

RULES OF APPELLATE REVIEW

Appellate procedure consists of the rules and practices1 by which a court of appeal reviews trial court judgments. The procedure focuses on several main aspects: what judgments are appealable, how an appeal is to be brought before the court, what will be required for a reversal of the lower court judgment, and what procedures the parties must follow.

Appellate review is the general term for the process by which courts with appellate jurisdiction review matters decided by lower courts. In law, an appeal is a request for a formal change of an official decision. Depending on the particular legal rules, a party to a court case who disagrees with the result is able to challenge the decision in an appellate court on specific grounds2 typically including errors of law, fact, or procedure that is called due process3 in the USA. The function of the appeal is to assure that the trial has been conducted in a lawful manner4 and that judgment conforms to the law. Broadly speaking, the lower courts decide matters of fact and the upper courts normally deal with points of law.

When trial proceedings are terminated, a judgment is rendered and there is nothing to be done in the action except to execute the judgment one speaks of a final judgment. But if the attorney and client are not satisfied with the court decision in their matter, under some circumstances they can initiate an appellate procedure that is to apply for the judicial examination of the decision by a higher tribunal by submitting appellate brief to an appropriate appellate court.

In most jurisdictions the normal way of seeking appellate review is by filing an appeal of the final judgment in the action. Appealing from interlocutory judgments, deciding some procedural, that is interlocutory, matter, but not terminating the proceedings, is not allowed. This type of orders is commonly described as reviewable but not appealable. Generally, an appeal of the judgment will also include appeal of all other orders or rulings made by the trial court in the course of the case5.

A party who files an appeal is called an appellant or a petitioner, and an opposing party is called a respondent (in most common-law countries) or an appellee (in the United States). In civil matters any dissatisfied party to a trial

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may appeal to a higher court. So the appellant can be either the claimant or defendant. As a rule the losing party refers to a higher court to have its case reconsidered, though in some cases the prevailing party in the trial court may still appeal on the ground that the amount of damages6 awarded is too low.

Appeal may be a matter of right or that of discretion. An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle7 and an appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the decision of lower court.

It is important to note that in adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore, if a lower court has ruled in an improper manner8 or against legal precedent and the judgment was not appealed, it will stand even if it might have been overturned on appeal.

II.COMPREHENSION

1.Find in the text legal terms which correspond to the following explanations:

−a party who initiates an appeal from one court to another;

−a procedural document filed with an appellate court to initiate appellate proceeding;

−an opposing party against whom an appeal is filed;

−a request for a formal change to lower court decision.

2.Which of the given words/phrases have you come across in the text? What do they refer to in the context?

Rules and practices; general term; pleadings; specific grounds; appellate brief; normal and preferred way; lawsuit; interlocutory judgments; objections; prevailing party; a matter of right; discovery; to move for leave to appeal.

3. Answer the questions. Refer to the text if necessary.

1. Who can initiate appeal proceeding in civil cases: loosing, prevailing or dissatisfied party?

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2.What are the main aspects regulated by the appellate procedure

rules?

3.What do you understand by due process?

4.What is a final judgment?

5.What can be the grounds for prevailing party to appeal or crossappeal?

4.React to the following statements: agree or disagree. Support your answers by information or facts from the text.

1.An appeal is an application for the judicial examination by higher tribunal of the decision of any lower tribunal.

2.In civil matters all judgments of a trial court can be appealed.

3.There must be specific grounds to challenge a lower court decision in an appellate court.

4.The main purpose of appellate process is to change a trial court decision.

5.One can speak about final judgment when the decision on a civil case is rendered by the court of last resort.

6.Appeal is a matter of discretion of a court and an appellant is required to move for leave to appeal.

5.Tell the group what information you have learnt from the text about:

−appellate jurisdiction

−legal aspects governed by the appellate procedure rules

−grounds to file an appeal

−appealable and reviewable judgments of a trial court

−parties to an appeal

6.To summarize the text, complete the sentences:

1.Appellate procedure rules regulate …

2.The term “appellate review” means …

3.If a party disagrees with the result…

4.An appeal in civil matters may be filed by…

5.An appellant is …

6.An opposing party is …

7.An appeal as of right means that …

8.An appeal by leave means that…

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