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LGLPROC.LAW
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1993-12-26
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Legal procedure consists of the methods used in enforcing legal
rights and remedies. These include rules for initiating a
lawsuit, conducting a trial, and appealing to a higher court
and also the processes whereby one party secures redress or
compensation from another.
American legal procedure is based on English COMMON LAW and
equity (see EQUITY, law). All common-law countries, including
the United States, Canada, and England, have modernized the
traditional English procedure within the last century. In the
United States, David Dudley FIELD's work (1848) on the New York
code of civil procedure was influential in the development of
modern U.S. legal procedure.
Preparation of a Legal Action
A lawsuit is initiated by the attorney for the plaintiff (the
party bringing suit), who prepares a summons and a complaint.
The summons is a notice to the defendant (the party against
whom suit is brought) that he or she is being sued and
specifies the time and place of the hearing and the nature of
the demand being made. The complaint is a brief statement of
the essentials of the plaintiff's case that is made under oath
before an official who is empowered to charge people with
offenses.
The summons and complaint are delivered to the defendant in
person by a marshal or other qualified person. This action is
called servicing a process, and from this point the court has
authority, termed jurisdiction, over the defendant. If the
defendant declines to appear in court for trial, a decision may
nonetheless be entered against him or her. This procedure is
termed a judgment by default.
Normally the defendant will forward the complaint to an
attorney, and the attorney will prepare a document called the
answer, which will contradict one or more assertions contained
in the complaint. The answer will then be served on the
plaintiff. If the defendant brings up some new matter in the
answer, the plaintiff may respond with a reply. Various rules
of pretrial discovery enable both plaintiffs and defendants to
acquire more information about the case.
Exchange of the complaint, answer, and, if used, the reply
constitute the pleading. The purposes of the pleading are to
inform each party of the issues in the approaching trial and
narrow the possible issues to those actually in contention.
The Trial
Following the pleading, the case will be tried. Either party
may insist on a trial by JURY except for cases in equity, but
often neither party desires a jury trial because trials in
which the judge fills the role of the jury tend to proceed more
quickly. If neither party insists on a jury trial, the case
will be heard solely by the judge. The discussion below assumes
that the trial is by jury, but the procedure is almost the same
without a jury. In England the right to a jury has been limited
in recent years.
The trial begins with opening statements by the plaintiff's
attorney and the defendant's attorney; they both present a
broad outline of what they intend to prove. Opening statements
may be and often are waived. Following the opening statements,
the plaintiff's attorney presents EVIDENCE, generally elicited
through direct examination or questioning of witnesses under
oath. After a witness is examined, the defendant's attorney may
cross-examine to test the witness's accuracy and veracity.
After all the plaintiff's witnesses have been examined and
cross-examined, the defendant is given an opportunity to
present witnesses. Each witness, after being examined by the
defendant's attorney, is cross-examined by the plaintiff's
attorney.
Under the rules of evidence, certain types of questions may not
be asked--for example, irrelevant questions or those involving
hearsay or opinions (except those of a qualified expert). If an
improper question is asked, the opposing attorney may object;
the judge should sustain the objection and instruct the witness
not to answer. If the judge believes the question proper,
however, the objection will be overruled.
After the evidence has been presented, the attorneys make their
closing arguments in which they present their clients'
positions as best they can based on their view of the evidence.
The judge then instructs the jury in the rules of law
applicable to the case.
The jury's task is to decide the facts, to apply the law as
contained in the instructions to the facts, and to reach a
verdict. In many states a jury must reach a unanimous verdict,
although in some states this is not required.
The losing party may request a new trial. This can be granted
if the judge believes that an error of law occurred in the
original trial or if newly discovered evidence is presented.
Appeals
The usual basis for APPEAL is that an error of law was
committed during the original trial. The facts as established
by the jury may not be challenged unless the court of appeals
can be persuaded that no reasonable jury could have decided as
it did.
The party bringing an appeal is called the appellant, and the
opposite party--the winner in the lower court--is the appellee
or respondent. Appellate courts are presided over by a panel of
judges, usually at least three and sometimes as many as nine,
depending on the particular court . No jury sits in an appeal
because the findings of fact were determined by the trial
court. Both parties to an appeal submit written briefs
containing legal authorities and arguments. The actual hearing
consists of an exchange of oral presentations by the two
attorneys, much as in a debate, with the appellant's attorney
speaking first. After the court has reached a decision on the
appeal, one of the judges prepares an opinion. This is
essentially an essay stating the facts of the case, the legal
issues, how the case was decided, and why.
Judgment and Execution
Most civil (in other words, noncriminal) cases are brought to
secure money damages. If a jury awards damages to the
plaintiff, the court enters a judgment entitling the plaintiff
to collect a sum of money from the defendant. Judgments are
not, however, self-enforcing. If the defendant refuses to pay,
the plaintiff must locate money or property belonging to the
defendant and submit certain papers to the sheriff, who can
seize the money or property. This action is called an execution
on the judgment. If property is seized, the sheriff can have it
sold at auction to satisfy the plaintiff's judgment. The fact
that a judgment may be satisfied only if the defendant has
money or property presents a serious limitation on the efficacy
of the legal system.