Unit 6. Civil and criminal procedures

Практические занятия – 10 часов.

Внеаудиторная самостоятельная работа – 10 часов.

10. Аудиторная работа

Key vocabulary

constitute a wrong - составлять правонарушение; деликт; причинять вред

issue in [of] law - спорный вопрос права, спор о праве

issue in [of] fact - спорный вопрос факта, спор о факте

counterclaim - предъявлять встречный иск

default judgement - судебное решение в пользу истца вследствие неявки ответчика

discovery procedure - раскрытие, представление сведений, документов; обнаружение (нового факта, преступления)

deposition - письменные показания под присягой; снятие показаний под присягой

court reporter/ clerk - судебный секретарь; докладчик в суде

burden of proof (= burden of proving) - бремя доказывания

preponderance of evidence (= preponderance of proof) - наличие более веских доказательств, перевес доказательств (критерий доказанности по гражданским делам и по делам несовершеннолетних)

I. Read the text and translate it into Russian.

What is a civil procedure?

A civil action involves two parties. The party who brings a civil action is the plaintiff (or claimant); the party against whom the civil action is brought is the defendant. There may be many plaintiffs or many defendants in the same case. Most often, the party bringing the suit is asking for money damages for some wrong that has been done.

The plaintiff starts the lawsuit by filing a paper called a complaint, in which the case against a defendant is stated. This step is usually done by the attorney for the plaintiff. The complaint states the plaintiff’s claims, which allegedly justify the relief demanded. Next, the defendant must be properly served with a copy of the complaint and with a summons. The summons is a court order which directs the defendant to answer the complaint.

The defendant normally files an answer, where he or she may do one of the following: 1) declare that even if the facts alleged in the complaint are true, they do not constitute a wrong for which the defendant has any duty to pay or otherwise act – this is an issue of law which is decided by the judge; 2) deny the truth of the facts alleged in the complaint – this raises an issue of fact; 3) admit the facts alleged but introduce other facts that excuse the defendant from liability – the dispute can then proceed to trial. The defendant may also feel that that there has been a wrong committed by the plaintiff, in which case a counterclaim will be filed along with the answer. If the defendant doesn’t answer the complaint within the time allowed

(generally not more than 20 days), the plaintiff may win the case by default judgment.

Both parties may engage in discovery procedures which are done under court order to obtain facts about the case and to identify the issues in dispute. A very frequently used discovery procedure is the deposition. In a deposition, parties and witnesses are questioned under oath by the opposing attorney usually in the office of one of the attorneys, and in the presence of a court reporter, who makes a written record of what is said. Depositions and other discovery procedures, such as physical examinations of persons claiming they were injured, help the attorneys learn the facts before the trial. Often, an attempt is made to resolve the differences without trial and it leads to out-of-court settlement. If the attorneys cannot compromise and agree on some settlement, either party may ask the court to set a date for the trial. It is up to the plaintiff to prove the case against the defendant. In each civil case the judge tells the jury the extent to which the plaintiff must prove the case. This is called the plaintiff’s burden of proof, a burden that the plaintiff must meet in order to win. In most civil cases the plaintiff’s burden is to prove the case by a preponderance of evidence, that is, that the plaintiff’s version of what happened in the case is more probably true than not true.

Ex. 1. Answer the questions to the text.

1. What are the two parties a civil action involves?

2. How does the plaintiff start the lawsuit against the defendant?

3. What is the summons?

4. What are the three answers the defendant files in case of a civil case brought against him/her?

5. Why does court sometimes order discovery procedures?

6. Who is responsible for the burden of proof and why?

Ex. 2. Find these phrases and expressions in the text.

1. денежная компенсация ущерба 2. распоряжение суда 3. арендатор 4. дело может быть передано в суд 5. отрицать достоверность фактов 6. регулировать противоречия вне суда 7. освобождение ответчика от ответственности 8. собственник недвижимости 9. подать встречный иск 10. допрос под присягой

11. судебный протокол 12. признавать факты

Ex. 3. Match the terms with their definitions.

trial, complaint, tort, summons, deposition, burden of proof, counterclaim, preponderance of evidence

a) under civil law, a wrong committed by one person against another is …

b) proceedings in a court, in which the judge or jury listens to the parties' presentation of evidence and then makes a decision based on the law

c) most of the evidence in a law case

d) an official order to appear in a court of law

e) a statement written or recorded for a court of law, by someone who has promised to tell the truth

f) the duty to prove in court that something is true

g) a statement in which someone complains about something

h) a claim made by a Defendant for his / her own personal injury, loss or damage where he / she seeks to blame the Claimant for the accident.

Ex. 4. Fill the gaps with the missing words from the box.

plaintiff, defendant, complaint, summons, out-of-court settlement, court order, money damages, liability, tenants

1. Twelve ____________ of the Lockwood housing complex are taking part in the lawsuit against their landlord.

2. Ten ______________ are suing the companies for damages from the blast.

3. The court ruled there was no ___________ to pay any refund.

4. The court awarded him $15,000 in _____________.

5. She's under a _______________ to stay at least 500 yards away from her ex-husband.

6. But Education Department lawyers made the ______________________ and agreed to pay his $12,000 costs.

7. He had been accused of a drug offence but police had been unable to serve a __________ on him.

8. None the less, annual employee ____________________ filed with the

federal Equal Employment Opportunity Commission have doubled.

9. According to the __________________, the heroin was destined for the New York City area.

II. Discuss in pairs or in small groups the following cases to decide whether the claim in each case is legitimate or not. What do you think the court ruling would be?

Case 1. In 2004, Timothy Dumouchel, from Fond du Lac, Wisconsin sued a television company for making his wife fat and transforming his children into “lazy channel surfers”. He said: “I believe the reason I smoke and drink every day and my wife is overweight is because we watched the TV everyday for the last four years”.

Case 2. In 2001 Cathy McGowan, 26, was overjoyed when a DJ on Radio Buxton told her that she had correctly answered a quiz question and had won the competition prize: a car by Renault. Ecstasy collapsed into despair, however, when she arrived at the radio station and was presented with a 4-inch model of the car. She sued the radio station.

Case 3. Giran Jobe, a 36-year-old bodybuilder, was doing regular two-hour weight lifting sessions - and the noise when his power weights came crashing down on the floor of his top-floor flat - was so bad that it reached as much as 100 decibels, according to monitors installed by the local council. In other words, as loud as the noise on the platform of a Tube station as a train arrives. After his workouts became intolerable to his neighbours, they sued him for the breach of a noise abatement order.

Case 4. The Supreme Court of Austria was asked to rule that Matthew Hiasl Pan, a chimpanzee, is a person. An animal-rights group launched the unusual legal bid in order to legally adopt Matthew after the shelter he had lived in for 25 years closed. The group argued he should legally be considered a person on the grounds that chimpanzees share 99.4 per cent of human DNA.