Civil procedure – key, Civil procedure I

1. Reading Stages in civil procedure. All documents filed with the court are called pleadings. Plaintiff files complaint with the court. Court issues and serves summons on the defendant. Defendant confirms by filing acknowledgement of service and is required to serve defense (answer in the USA) Defendant may also file counterclaim Plaintiff files a reply as an answer to the defense or counterclaim. Litigants agree privately, they reach out-of-court settlement

the case goes to trial _Burden_of proof lies on the plaintiff.

litigants/counsel make opening statements .

witnesses are examined and they present evidence.

litigants/counsel make closing statements .

Judgment

appeal enforcment of judgment

paying damages and legal costs

seizure of goods a third party debt order e.g. attachment of earnings order

Created by the team of authors.

2. Documents in court – Listening

Listen to the recording where a lawyer tells her client about some of the documents involved in his case. Write down the names of all the documents mentioned she mentions. Match the documents with their definition. 1 c, 2 e, 3 a, 4 b, 5 g, 6 d, 7 f

Match each verb with its definition. 1 b, 2 e, 3 d, 4 a, 5c Decide which of the verbs can go with the nouns. 1 affidavit is filed, submitted

2 answer is drafted, filed, submitted

3 brief is drafted, filed, submitted

4 complaint is drafted, filed, served, submitted

5 motion is drafted, filed, submitted

6 notice is issued, served

7 writ of summons is issued, served

Source: Krois-Lindner and TransLegal. /International Legal English./ CUP, 2006.

3. Filing a complaint

A. What is a complaint?

A complaint is a legal document that initiates a law suit. In a complaint template, a plaintiff is the person who files the petition and states under oath that the accused person or the defendant has committed a crime or a civil wrong.

The elements of a complaint petition are:

A. List of facts B. Relief or damages claimed C. Cause of action D. Jurisdiction of the court E. Injury caused to plaintiff F. Parties identified as plaintiffs and defendants and address of the parties G. Heading - with the name of the court in which the case is initiated, names of the parties

and a brief description of the document www.uslegal.com

Read the complaint sample and match the paragraphs with the correct elements listed above. G Heading SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF BROOME

JOHN JONES, COMPLAINT

Plaintiff, Index No.: 2004-0130

- vs - GEORGE SMITH,

Defendant. D Jurisdiction

of the court

TO THE SUPREME COURT OF THE STATE OF NEW YORK

F Parties identified as plaintiffs and defendants and address of the parties

The Complaint of the Plaintiff, John Jones, respectfully shows and alleges as follows: 1. The Plaintiff herein, John Jones, is a resident of the State of New York. Mr. Jones resides at 32 Adams Street, Vestal, New York. 2. The Defendant herein, George Smith, has a principal place of business at 125 Main Street, Binghamton, New York. Defendant is engaged in the business of building submarines.

A List of facts

3. Plaintiff Jones desired to have a small submarine built pursuant to a design prepared by him. He and Defendant discussed his needs and specifications for this project. 4. On March 1, 2013, Plaintiff and Defendant entered into a written agreement. Pursuant thereto, Plaintiff agreed to pay the sum of $200,000.00 for the submarine. Plaintiff was obligated to make a down payment of $100,000.00 on or before April 1, 2013, with the balance to be due upon delivery of the submarine. The Defendant agreed to build the submarine in accordance with Plaintiff’s design for the aforesaid price and to complete the work and deliver the submarine to a fixed place on or before July 15, 2013. 5. On March 8, 2013, Plaintiff delivered to Defendant a certified check in the sum of $100,000.00, which Defendant cashed. 6. Defendant failed to deliver the submarine on or before July 15, 2013, as agreed. Plaintiff made numerous phone calls and sent several letters to Defendant about the contract, but received no response.

C Cause of action

7. By reason of the facts and circumstances stated above, Defendant has breached the contract.

E Injury caused to the plaintiff

8. By reason of the facts and circumstances stated above, Plaintiff has been damaged by Defendant in the sum of $100,000.00.

B Relief or damages claimed

WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $100,000.00, plus interest from July 15, 2013, costs and disbursements, together with any other relief the Court finds to be just and proper. Dated: January 4, 2014 ____________________John Jones, Plaintiff

32 Adams Street Vestal, New York 13850

https://www.nycourts.gov/courts/6jd/forms/SRForms/complaint_examp.pdf

Key: 1G, 2D, 3F, 4A, 5C, 6E, 7B

A. Drafting a complaint

You are newly qualified lawyers and you have been defamed! That is very damaging for your future career. Moreover, you are really angry about it.

From you law studies, you still remember that to win a defamation lawsuit you need to prove the following:

• what the false statement was

• how and when it was heard by the third party

• what injury you suffered because of it

If you are sure you can succeed, draft a complaint to be filed with the court.

The complaints will be filed in Discussion Forum. Once you have filed the complaint, you get a career boost and become a judge and will choose a complaint filed by another group and write a legal opinion on it.

Created by the team of authors.

Civil procedure II Alternative dispute resolution

1. Revision – stages in civil procedure

1 the plaintiff 2 the defendant 3 files a complaint 4 issues a summons 5 a notice of the lawsuit 6 files an answer 7 appear in court 8 related to the claim 9 reach a settlement 10 presents evidence 11 the burden of proof 12 rules/finds either for or against the plaintiff 13 award damages 14 file an appeal 15 an appellate court 16 dismiss the appeal 17 reverse the order 18 contempt of court 19 pleadings

2. Reading - Alternative dispute resolution

Read the text and fill in the table below

Mediation Arbitration

People involved Parties + mediator (a trained

professional appointed and

paid by the court)

Parties/ disputants + arbitrator

Suitable cases marriage disputes

international trade law

employment matters

Outcome Not binding

Parties are expected to reach

an agreement.

Legally binding

settlement

Follow-up Possible

e.g. custody lawsuit

Not possible (no effective appeal

process)

Created by the team of authors.

1. Listening – Exam Practice

Listen to the recording on mediation and for questions 1-5 choose the correct answer a, b, c, or d. 1. B 2. D 3. A 4. C 5. B listening = videos: https://www.youtube.com/watch?v=WaG75ozhV_0

https://www.youtube.com/watch?v=G90f4EsegDg

https://www.youtube.com/watch?v=Yr3UyBR1STo

https://www.youtube.com/watch?v=5RhD0kwqsf0

https://www.youtube.com/watch?v=Yr3UyBR1STo

task: Created by the team of authors.

REVISION (Game, competition, ...) Translate

mateřská a dceřinná společnost platit dluhy, jakmile jsou splatné nárok je promlčen podléhat výjimce podat návrh na zamítnutí žaloby zbavit způsobilosti manželství se rozpadlo nenapravitelně předci a potomci

Explain

limited x unlimited liability

board meeting x general meeting transfer of title disclaimer implied x express terms annulment x divorce contested x uncontested divorce winding-up

Name

at least 3 forms of business in the UK 2 ways of raising capital of a company 2 documents to set up a company (UK or US) at least 4 sections of a case brief 3 options a seller has to solve problems with faulty goods at least 3 grounds for a void marriage (without petition) at least 3 grounds for a voidable marriage (petition needed) at least 3 types of custody

Language

give synonyms for “buyer“ and “seller“ give two synonyms for “a party harmed“ give two synonyms for “decision“ give synonyms for “to have the right“ and “to give up the right“ transform – He said: “I have bought faulty goods.“ transform – He asked: “What do you want to know?“ transform – He said: “I went bankrupt.“ transform – He asked: “Will the company raise its capital?“

BONUS ☻

pressure cooker fair wear and tear dissolve – dissolution

Key Translate

a parent company and subsidiary

pay debts as soon as they fall due

a claim is statute-barred

to be subject to an exception

file a motion to dismiss a case

to deprive of legal capacity

marriage broke down irretrievably

ancestors and descendants

Explain limited x unlimited liability (liable only for the amount invested x personal liability) board meeting x general meeting (meeting of directors x meeting of shareholders) transfer of title (changing of ownership) disclaimer (avoiding liability) implied x express terms (recognized by law x explicit) annulment x divorce (marriage never existed – single x marriage existed – divorced)

contested x uncontested divorce (spouses cannot agree x spouses agreed) winding-up (liquidation of a company UK)

Name

sole trader, partnership, company (limited, public limited)

issuing shares and debentures

Memorandum of Association and Articles of Association/ Articles of Incorporation and

Bylaws

Parties, facts, legal issue, rulings, reasoning

Refund, replace, repair

Bigamy, same-sex, prohibited relationships, minors

Duress (unlawful threat), misrepresentation, error (mistake), non-consummation,

unsoundness of mind (lack of understanding of one´actions, e.g. intoxication)

Sole, joint, split, bird´s nest, third-party

Language Purchaser and vendor

Injured party, aggrieved party

Ruling, holding, judgment

To be entitled, to waive the right

He said he had bought faulty goods.

He asked me what I wanted to know.

He said he had gone bankrupt.

He asked whether the company would raise its capital.

Created by the team of authors.