Civil Procedure & Litigation: A Practical Approach (Paralegal)

764 Pages·2000·3.03 MB·English

by  Jack S. Emery

C P
IVIL ROCEDURE
L
AND ITIGATION
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C P
IVIL ROCEDURE
L
AND ITIGATION
Jack S. Emery
Linda L. Edwards
J. Stanley Edwards
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COPYRIGHT © 2000
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Library of Congress Cataloging-in-Publication Data
Emery, Jack S.
Civil procedure and litigation: a practical approach / Jack S. Emery, Linda L. Edwards,
J. Stanley Edwards.
p. cm.
Includes bibliographical references and index.
ISBN 0-314-12636-8
1. Civil procedure—United States. 2. Legal assistants—United States—Handbooks,
manuals, etc. I. Edwards, Linda L. II. Edwards, J. Stanley. III. Title.
KF8841 .E54 2000
347.73’5—dc21
99-057371
PPRREEFFAACCEE
This book is directed to paralegal students striving to understand the civil liti-
gation process and the rules that guide that process. It is broad enough in scope
and detailed enough in coverage to be used as either an introductory civil pro-
cedures text or as a more advanced civil litigation text. Enough material is con-
tained in this book to fuel a two-semester course, but it is organized in such a
manner that it could be used in a one-semester course. Because workshops can
be used or omitted at the discretion of the instructor and the chapters them-
selves can be used as either a review or as an overview of the litigation process,
the text can be adapted to the needs of the class and the instructor.
REASON FOR THE DEVELOPMENT OF THIS TEXT
The impetus behind the creation of this text was the desire to provide stu-
dents with the tools they would need when they began their work in the para-
legal field. Practicing paralegals are expected to have a working knowledge of
the procedural rules and customs in their jurisdiction. Unfortunately, students
are often poorly equipped to engage in the practical realities of paralegal prac-
tice when they graduate. Having been thoroughly indoctrinated in legal phi-
losophy, principle, and terminology, they are typically bereft of any hands-on
experience in the preparation of legal documents or the handling of legal pa-
perwork. This book is designed to remedy that deficiency.
Another problem inherent in the writing of legal procedures texts is that
every jurisdiction has its own set of procedural rules. Even those states that have
adopted the Federal Rules of Civil Procedure have modified those rules to some
extent and have adopted their own formatting and organizational requirements
as well as other customs that dictate how documents are to be prepared and filed
and how legal processes are to be conducted. Instead of simply adhering to the
Federal Rules (which most texts do), we use the Federal Rules as a model and
then provide prompts throughout the text, reminding the instructor to talk about
the applicable local rules and norms. Space is allocated throughout the text so
students can write in those rules and easily reference them in the future.
Preliminary reviews by faculty and responses from students who have used
parts of the text attest to its uniqueness and usefulness. Students who have used
the workshops to assist them in fulfilling assignments have consistently com-
mented that they wished all their books provided them with such fail-safe in-
structions. The degree of student experience does not seem to matter. Both be-
ginning and advanced students have benefited from using the workshops.
ORGANIZATION OF THIS TEXT
This text is organized in a unique fashion. The first eight chapters are devoted
to a sweeping overview of the civil litigation process. Terminology is introduced
and basic concepts are explained. Following the chapters are nineteen work-
shops, each of which is dedicated to an in-depth exploration of a specific sub-
ject, such as the preparation of a motion, the drafting of a complaint, the serv-
ing of court papers, or the drafting of a response to a request for discovery. Each
vi PREFACE
workshop contains a set of step-by-step instructions guiding the student
through the task and explaining the reason for each step. These universal in-
structions are then applied to a specific fact situation, allowing the student to
experience each step in the context of a concrete fact pattern. Each workshop
closes with a “Learning by Doing” exercise that challenges the student to follow
the step-by-step instructions using different facts.
Flexibility is the credo of this text. In that vein, the workshops can be used
in any order and in any fashion that meets the needs of the class and the in-
structor. Some instructors may prefer to go through all eight chapters, pro-
viding students with a general knowledge of the litigation process as a whole,
before delving into the workshops. Those who are using the text in a more ad-
vanced litigation class may want to use the chapters for review only and focus
on the workshops for the bulk of the class. If time is limited, only selected
workshops may be used, allowing students to develop skills in performing par-
ticular tasks and omitting other tasks for future classes. As an aid to instruc-
tors, “Workshop Alerts” are provided at the end of most chapters, letting in-
structors know which workshops most closely correlate with each chapter.
Additionally, the Instructor’s Manual has a suggested lecture outline for each
chapter; this outline indicates at what point in the chapter the instructor may
want to introduce a particular workshop.
UNIQUE FEATURES
In addition to its distinctive overall design, this text has many other unique
features designed to help students assimilate and apply information:
(cid:2) Intriguing hypothetical situation that links each chapter (beginning with
Chapter 3) with the other chapters and helps put the subject matter of
each chapter in a factual context
(cid:2) Local Notes that prompt instructor and students to consider the rele-
vant rules and customs in their jurisdiction
(cid:2) Ethical Etiquette features at the end of each chapter that highlight specific
ethical considerations that students are likely to encounter on the job
(cid:2) Practice Pointers at the end of each chapter and workshop that provide
students with practical tips they will find advantageous when they en-
ter the work world
(cid:2) Techno Tips at the end of each chapter and workshop that inform stu-
dents about technological tools and alert them to technical considera-
tions related to law practice
(cid:2) Putting It into Practice questions sprinkled throughout the chapters
that challenge students to apply the information they have just read
(cid:2) Litigation Lingo exercises in the form of crossword puzzles, word
scrambles, and other game-like formats that allow students to practice
their recollection and spelling of key terms
(cid:2) Litigation Logistics that require students to look up the procedural rules
in their jurisdiction governing hypothetical situations
(cid:2) Procedural Ponderables that challenge students to apply the concepts
they have learned to various fact patterns and then to go beyond the
text and consider policy questions
(cid:2) Answers to the Practice Exam, Litigation Lingo, and Litigation Logistics
sections in Appendix A, allowing students immediate feedback
(cid:2) A glossary and a copy of the most recent Federal Rules of Civil Proce-
dure in Appendix B
In addition, the customary features of chapter objectives, summary, key
terms, review questions, and a practice exam are provided for each chapter.
PREFACE vii
HOW TO USE THIS TEXT
Because this text is designed to be as flexible as possible, instructors can use
it in a number of different ways. We offer you four options:
OPTION ONE
Cover the material in each chapter sequentially without reference to the
workshops. In each chapter the students can:
** Respond to the Putting It into Practice questions found throughout
each chapter
** Answer the Review Questions to test knowledge of basic concepts
** Take the Practice Exam (consisting of multiple choice, fill-in-the-
blank, and true–false questions)
** Do the Litigation Lingo and Litigation Logistics exercises to prac-
tice vocabulary and apply the procedural rules
** Write out responses to the Procedural Ponderables to apply
chapter content and to explore questions unanswered in the
chapter
After going over all the chapters, work with the workshops on a discre-
tionary basis. Students using this approach will have a basic understanding of
the whole process before delving into the details of specific tasks. They will,
in other words, have the big picture before being asked to master the details.
Unless the class is a two-semester course, however, they will not realistically
be able to cover all of the workshops.
OPTION TWO
Have the students read all of the chapters as a review. To ensure that
they have mastered the major concepts and basic vocabulary, have them
answer the review questions, do the Litigation Lingo, and take the Practice
Exam. They can compare their answers with those in Appendix A. Class
time can then be spent going over each of the workshops in depth. Al-
though the workshops can be completed in any order, their order of pres-
entation in the book correlates with the typical sequencing of the litigation
process.
This option works best with advanced students who have already had
classes in civil procedures and are now ready to develop their practical skills
in document preparation and management.
OPTION THREE
Intersperse coverage of the workshops with the chapters. The workshops
are designed to be able to be used independently or in conjunction with the
chapters but if they are used concurrently, they correlate as follows:
CHAPTER ONE INTRODUCTION
No Workshops
CHAPTER TWO COURTS AND FILINGS
No Workshops
CHAPTER THREE PREFILING PREPARATION AND PLEADINGS
Workshop 1 Claims and Their Elements
Workshop 2 Choosing a Court: Jurisdiction, Venue, and Choice of Law
Workshop 3 Working Up a Case for Suit
Workshop 4 Court Papers
Workshop 5 Drafting Pleadings: Complaints
Workshop 6 Serving the Complaint
Workshop7 Paper Flow in a Litigation Office: Service, Docketing,
and Deadlines
Workshop 8 Drafting Pleadings: Responsive Pleadings
Workshop 19 Ethics in Litigation
viii PREFACE
CHAPTER FOUR DISCOVERY
Workshop 9 Document Discovery
Workshop 10 Written Discovery
Workshop 11 Responding to Discovery Requests
Workshop 12 Disclosure Rules and Limitations on Discovery
Workshop 13 Depositions and Working with Witnesses
Workshop 15 Discovery Motions
Workshop 19 Ethics in Litigation
CHAPTER FIVE MOTIONS
Workshop 14 How to Present a Motion
Workshop 15 Discovery Motions
Workshop 16 Motions for Summary Judgment, Motions to Dismiss,
and Other Tactical Motions
Workshop 19 Ethics in Litigation
CHAPTER SIX ALTERNATIVE DISPUTE RESOLUTION
No Workshops
CHAPTER SEVEN PRETRIAL PRACTICE, TRIALS, AND JUDGMENTS
Workshop 17 How to Prepare for Trial
Workshop 19 Ethics in Litigation
CHAPTER EIGHT JUDGMENT COLLECTION AND APPEAL
Workshop 18 How to Obtain a Judgment
Workshop 19 Ethics in Litigation
This option allows students to develop their practical skills as they are learn-
ing the basic legal concepts and vocabulary. Instead of simply reading about
pleadings, for example, they have the experience of preparing a complaint and an
answer. The concept of service of process becomes more real as they learn to pre-
pare a summons and calculate the time during which service must be completed.
Doing all of the chapters and workshops will require at least two semesters.
OPTION FOUR
Intersperse the chapters with the workshops but use only certain work-
shops. This allows students to combine their assimilation of legal concepts
and vocabulary with a practical application of those concepts. Choosing spe-
cific workshops allows instructors to adapt the text to limited timelines.
ANCILLARY MATERIALS
The Instructor’s Manual includes these elements:
(cid:2) Suggested lecture outlines, which indicate specific points in the chap-
ters to insert the appropriate workshops
(cid:2) Classroom activities
(cid:2) Answers to the review questions, Procedural Ponderables, and Learning
by Doing exercises in the workshops
(cid:2) Transparency masters that correlate with the chapters and workshops
are also included
(cid:2) Test bank
In addition, the following support material is available:
(cid:2) Transparencies in PDF format are provided on CD-ROM
(cid:2) Computerized test bank.The test bank found in the Instructor’s Manual
is also offered in a computerized format on CD-ROM. The platforms sup-
ported include Windows 3.1 and 95, Windows NT, and Macintosh
(cid:2) Web page. Come visit this book’s specific web page at www.westlegal
studies.com where you will find sample materials, hot links, and text-
book updates as well as much more information on many other West Le-
gal Studies products
PREFACE ix
(cid:2) Westlaw.West’s on-line computerized legal research system offers stu-
dents hands-on experience with a system commonly used in law of-
fices. Qualified adopters can receive 10 free hours of Westlaw. A modem
is required
(cid:2) Court TV videos.
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(cid:2) West’s paralegal video library. Adopters of 1–99 paralegal texts may se-
lect one video. Adopters of 100–199 paralegal texts may select two
videos. Adopters of 200–299 texts may select three videos
(cid:2) “The Drama of the Law II” paralegal issues video.Five separate dramati-
zations intended to stimulate classroom discussion about issues and
problems faced by paralegals on the job. Dramatizations cover intake in-
terviews, client confidentiality, UPL, etc
(cid:2) “The Making of a Case” video.A case is followed from the court system
to the law library shelf. Provides introduction to significant aspects of
our legal system
(cid:2) “Arguments to the U.S. Supreme Court” video.Accomplished lawyers, pro-
fessors and judges play various roles as the case of the F.T.C. v. The
American Tobacco Companyis argued before a mock U.S. Supreme Court
ACKNOWLEDGMENTS
We gratefully acknowledge the feedback we have received from the hundreds
of students we have had the privilege of working with over the years. This text
reflects our understanding of the learning process as they have demonstrated
it to us.
Writing this text has at times been an intimidating task. Having launched
into uncharted waters from an organizational and design standpoint, we have
sometimes found reason to defer this project to other tasks with which we felt
more comfortable. We owe thanks to Rhonda Dearborn, developmental editor,
for her tenacious support. Were it not for her persistent “nipping at our heels”
this book might never have become a reality. We are also grateful to Joan Gill,
editor, for her enthusiastic support of this somewhat unprecedented ap-
proach to teaching civil procedures and litigation.
Finally, we very much relied on the feedback and insights from our unsung
assistants, the reviewers. Their candor and eagerness to offer suggestions
helped make this book as conducive as possible to clear and efficient learning.
We acknowledge them now individually:
C. Suzanne Bailey, Western Illinois University, IL
Jeptha Clemens, Northwest Mississippi Community College, MS
Frances Coles, CSU
Richard J. Dimanin, Madonna University, MI
Paula D. Emmons, Watterson College, CA
Mary Kubicheck, Casper College, WY
Marion MacIntyre, Harrisburg Area Community College, PA
Kathryn L. Myers, Saint Mary-of-the-Woods College, IN
Larry Nordick, Moorehead State University, MN
FEEDBACK
We would very much like to receive your comments, suggestions, and ques-
tions in reference to the text, especially in regards to its unique approach to
presenting the material. Please feel free to contact us.