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Step of Pre-Trial Proceedings |
Example |
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Preliminary
investigations, interviews |
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| Demand letter |
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| Settlement discussions |
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| Evaluate jurisdiction and
decide where to file suit - state or federal court; which state; which
venue? |
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| Service of summons and
complaint (or substitute) |
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| File certificate of
service |
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| File corporate disclosure
statement |
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| Plaintiff files jury
demand |
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| Responses to the complaint |
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Answer, admitting or denying
each allegation in the complaint |
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Motion attacking plaintiff's
summons and complaint |
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(1) lack of subject matter
jurisdiction |
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(2) lack of personal
jurisdiction over a defendant |
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(3) improper venue |
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(4) insufficiency of process |
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(5) insufficiency of service
of process |
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(6) failure to state a claim
upon which relief can be granted |
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(7) failure to join a
necessary party |
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Counterclaims, cross-claims,
third-party claims, joinder of additional parties |
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Motion for more definite
statement - if a statement of a claim is so vague that the opposing party is
unable to respond |
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Motion to strike - asks the
judge to remove "redundant, immaterial, impertinent, or scandalous matter"
from a pleading |
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No response (default judgment) |
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| Motion for judgment on the
pleadings - asks the court to dismiss simply based on the statements in the
parties' complaint and answer |
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| Intervention - by
interested party who wants to join in the lawsuit |
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| Pretrial conference -
court will often issue pretrial order listing deadlines for discovery and
trial |
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| Discovery (factual
development) |
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Discovery conference - parties
meet and confer |
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(1) initial disclosures by
both parties (names of potential witnesses, existence and location of
documents, basis for damage calculation, availability of insurance to cover
a damage award) |
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(2) depositions under oath -
of any person with information about the lawsuit. Attorney may need to
issue subpoena to compel reluctant witness. Attorney can present
questions to witness in person or in writing. |
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(3) written interrogatories to
opposing party (not to witnesses) |
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(4) request for production or
inspection of documents (to party only, not to witnesses) |
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(5) physical and mental
examinations |
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(6) requests for admission |
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Request sanctions if opposing
party refuses to cooperate in discovery |
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Move for protective order to
protect a party or any witness from "annoyance, embarrassment, oppression,
or undue burden or expense" |
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Motion for summary judgment -
mechanism for deciding case w/out trial when "no genuine issue of material
fact"
This motion says: "This case presents no genuine issue of material
fact and so the court should decide the case as a matter of law."
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Supported by witness'
affidavits/declarations, exhibits exchanged during discovery, deposition
transcripts |
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| Summary judgment order -
if motion granted, plaintiff's case is dismissed and the case will not
proceed to trial stage. |
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Step of Trial Proceedings |
Example |
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Trial date
set - either now or via earlier pretrial order |
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Trial
briefs |
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| Parties propose
jury instructions |
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| Motions in limine |
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| Jury selection, voir dire
(unless bench trial) |
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for cause challenges |
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peremptory challenges |
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| Objections - Parties
must be vigilant throughout the trial and make proper objections when
necessary, to preserve the client's right to challenge an aspect of the
trial on appeal |
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| Plaintiff's opening
statement - gives jury an overview of the case |
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| Defendant's opening
statement - could also delay until later in case |
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| Plaintiff's case-in-chief |
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For each witness
(may require subpoena to secure witnesses' attendance at trial):
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Plaintiff’s direct examination |
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Defendant's cross-examination
- can impeach witness' testimony with statements made during deposition. |
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Plaintiff's
redirect
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Defendant's re-cross |
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Documents introduced into
evidence (either admitted or excluded) |
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| Plaintiff rests |
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| Defendant's motion for
judgment as a matter of law - also called motion for directed verdict
This motion says: "Even if all evidence plaintiff has
offered is true, plaintiff has no right to relief." Plaintiff has "failed to
make a prima facie case." Judge assumes all plaintiff's evidence is true and
makes all inferences in favor of plaintiff and asks whether a reasonable person
could decide for plaintiff. |
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| Defendant's opening statement
- unless made earlier |
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| Defendant's case-in-chief |
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For each witness:
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Defendant's direct
examination |
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Plaintiff's cross-examination |
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Defendant's
redirect
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Plaintiff's re-cross |
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Documents introduced into
evidence (either admitted or excluded) |
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| Defendant rests |
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| Plaintiff's case-in-rebuttal
- limited to refuting matters raised during prior phase |
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| Plaintiff's motion for directed verdict
- rarely granted in typical case in which plaintiff has burden of proof |
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| Both parties eventually rest their case |
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Plaintiff's or defendant's (but
usually defendant's) motion for judgment as a matter of law - seldom granted
for either party; especially rare for court to grant this motion for plaintiffs.
Defense motion says: plaintiff has not
satisfied his or her burden of proof
Plaintiff's motion says: plaintiff
has satisfied his or her burden of proof as a matter of law, so no reason for
jury to decide the case
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| Parties/court agree on
final set of jury instructions and resolve objections |
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| Plaintiff's/defendant's
closing arguments to the jury - bring all evidence together, spin it,
articulate favorable inferences, weave it into a compelling story. |
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| Charge to the jury -
jury instructions presented orally by judge, often jurors receive written
copy as well |
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| Jury deliberates |
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| Verdict - read out
loud in open court, jury polled to make sure no mistake. Alternately, if neither party
requested a jury, the judge will enter findings of fact, conclusions of law,
and a judgment. |
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| Motion for judgment
notwithstanding the verdict (j.n.o.v.) This
motion says: "Even if all the winner's evidence is true, and the
winner is given all reasonable inferences from that evidence, the loser is
entitled to a verdict as a matter of law." |
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| Entry of judgment |
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| Motion for a new trial
This motion says: "The loser is entitled to a new
trial because of some trial court mistake (erroneous admission or rejection
of evidence, misconduct of counsel, newly discovered evidence, verdict
is against weight of evidence)." |
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| Attorneys' fees and costs
- must sometimes be paid by losing party |
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| Motion for relief from
judgment / motion to amend or alter judgment - grounds can include jury tampering, judicial bias, etc. |
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| Notice of appeal |
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Step of Appellate Proceedings |
Example |
| Appeal scheduling order /
Mediation or conference
- some courts require parties to confer with a mediator to determine whether
appeal can be resolved through alternative dispute resolution |
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| Appellant arranges to have
the trial court record forwarded to the appellate court |
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| File excerpts of record
or appendix - most courts require parties to compile the key
documents that are involved in the specific legal issues on appeal |
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| File and serve appellant’s
opening brief |
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| Appellee’s (or
respondent's) responding brief |
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| Amicus brief -
submitted by non-party that wants to share its perspective with the court |
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| Appellant's reply brief |
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| Appellee's (or respondent's) sur-reply brief
- often need court's permission |
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| Bench memorandum -
judicial law clerks often prepare bench memoranda based on appellate briefs
and the record (the documents and exhibits in the trial file); suggest
questions to clarify legal positions and issues, make recommendation to
panel of appellate judges |
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| Oral arguments |
Clicking the link will cause an audio file to
play. Make sure your speakers are turned on |
| Judges’ conference, "straw
vote," assignment of opinion writing - most cases at intermediate
courts of appeal are heard by three judges |
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| Opinion drafting process (varies widely, but this is one
example) |
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(1) judge assigned to write
the opinion for the panel conducts further
research and analysis of case with assistance from law clerk |
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(2) judge or clerk composes
draft opinion |
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(3) judge circulates draft
opinion to other judges with cover sheet |
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(4) other judges elect to sign
on, sign on with conditions, concur or dissent
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(5) other judges and their
clerks offer helpful revisions
- this process can recur many, many times after revisions are made. In
the 9th Circuit, clerks send feedback via a "nit memo," given its name
because the clerk "nit-picks" the citation, grammar, typos, etc. |
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(6) if opinion convinces
majority of court or panel, law clerk assembles judges' revisions, verifies
accuracy of quotations, citations, and substantive legal claims. If a
judges disagrees with the opinion as written, may draft a separate
concurrence or dissent. |
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(7) law clerks checks every
factual assertion against the record |
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(8) final version circulates
to the judges
one last time, then is published and sent to the parties |
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(9) law clerk or court staff
prepare press release |
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Opinion issued - can be published or unpublished |
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| Petition for panel
rehearing - party who lost the appeal asks the three-judge panel to
reconsider its
decision |
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| Petition for rehearing en
banc - federal courts of appeals only, asks all active judges on the
entire court to reconsider the three-judge panel's decision |
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| Issuance of mandate -
this is the appellate judgment, terminates the appeal |
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| Petition for review,
petition for writ of certiorari to Supreme Court |
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| Discretionary review by
highest court in a jurisdiction
Criteria include: whether case presents
significant issue of law (e.g., constitutional or statutory interpretation); whether the
issue or a similar issue arises often; whether many people are affected by the
decision; whether the issue is one of first impression for the Supreme Court;
whether present case law is inconsistent (among Court of Appeals cases, between
Court of Appeals cases and Supreme Court cases, or among Supreme Court cases);
whether the Court of Appeals decision appears to be wrong; whether the issues
are well presented in the briefs. [this is a partial list from Oregon; other
jurisdictions surely vary.] |
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