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- CIVIL PROCEDURE
- CLASS ACTIONS IN THE US
Civil procedure deal with cases that are not criminal.
Civil procedure concern disputes by one individual or group against another.
In Criminal procedure, prosecutions are nearly always started by the state.
Civil actions are started by private individuals for their own benefit.
To initiate civil legal proceedings in the US, a court must have jurisdiction.
Courts in the US have two kinds of jurisdiction to hear a case :
- Personal jurisdiction and
- Subject matter jurisdiction.
1. PERSONAL JURISDICTION
A person from another state or jurisdiction can be forced to come to the venue where the lawsuit was filed
(= the forum state).
A person may be subject to personal juridiction for several reasons :
- Presence: the person has been served with a copy of the summons and complaint while physically present in the forum state ;
- Residence/Place of Business: the person has his residence or his business in the state ;
- Consent: the person can simply consent to a court having personal jurisdiction over him/her ;
- Minimum contacts: a court can also have personal jurisdiction over a person if this person maintains certain “minimum contacts” with the state where a court resides. It means the person must have sufficient dealings or connections with the forum state.
2. SUBJECT MATTER JURISDICTION
Subject matter jurisdiction refers to the nature of the claim.
It is the question of the power or authority of a court to decide the type of dispute involved.
3. DIVERSITY JURISDICTION / ERIE DOCTRINE
Diversity juridiction – A federal court has power to hear any case where the amount in controversy exceeds $75,000 and when opposing parties live in different states.
Erie Doctrine – If a federal court hears a case that deals with a state law issue, it should apply the state’s substantive law, but following the Federal Rules of Civil Procedure (FRCP) instead of the state’s rules
(= the “Erie Doctrine” is named after the Supreme Court case Erie Railroad Co. v. Tompkins in 1938).
II. CIVIL PROCEDURE
In the US :
- Civil procedure in the federal court system follows the FRCP and
- Each state has its own separate code of Civil procedure.
1. PRE-TRIAL PROCEDURES
Over 90% of civil law disputes are settled before the actual trial, through Alternative Dispute resolution (ADR) such as mediation or arbitration.
Before initiating a legal action, the lawyer will send to the other party a demand letter seeking an out-of-court resolution of the dispute.
If this fails, the party who wishes to sue will decide whether to initiate a legal action or seek arbitration.
If the plaintiff initiates a legal action :
- Suits begin with the filing of a complaint in the proper court, stating clearly the cause of action and the nature of the claim ;
- The complaint should be filed with the time limited provided by the statute of limitations ;
- A summons in then served on the defendant ;
- The defendant shall serve an answer within 30 days after the service of the summons and complaint upon him : the answer may contain an admission of liability or a denial of the facts or sometimes counterclaims.
A pre-trial conference may be called by the judge in charge of the case : through this procedure, a case can be resolved without trial.
If the case goes forward, the next step is the discovery phase.
Discovery – What can we say about the discovery step ? :
- Each party can request documents and other evidence from other parties, can compel the production of evidence by using a subpoena ;
- Discovery includes interrogatories, depositions, requests for production of documents, etc ;
- Most civil cases in the US are settled after discovery ;
- After discovery, both sides often come to an agreement and this often results in either a settlement or a summary judgment.
2. THE TRIAL
Jury Selection – Each party is entitled under the Constitution to request a jury trial.
There is a « voir dire » examination : the attorneys question, or examine, prospective jurors to determine whether they are fit to serve as jurors.
Opening statements – The attorneys may speak to the jury and describe the case. The attorneys will tell the story of the case and what they hope to prove using the evidence that will be presented.
Presentation of the Plaintiff’s Case – The plaintiff’s lawyer presents the facts of the case and the defendant’s alleged role (le rôle allégué du défendeur) in causing the plaintiff’s damages. The plaintiff’s lawyer may call witnesses.
Presentation of the Defendant’s Case – The defendant’s lawyer gives the jury the defense’s own interpretation of the facts. The defendant’s lawyer may call witnesses and he has the right to cross-examine witnesses.
Closing Arguments – This step offers the plaintiff and the defendant a chance to sum up the case and to attack the opponent’s evidence. This is the final chance for the parties to address the jury (s’adresser au jury) prior to deliberations.
Instructions to the Jury – The judge gives the jury the set of legal standards it will need to deliberate, such as the « preponderance of the evidence » = this means the plaintiff must prove that there is a greater than 50% chance (une chance de plus de 50%), based on all the reasonable evidence, that the defendant did the wrong that caused the damage. If the plaintiff fails, the defendant wins.
The Verdict – The jury must reach a verdict without outside contact. In some instances, deliberations can be very long. If the jury fails to reach a verdict, the judge may declare a mistrial, after which a new trial may have to be conducted.
Appeal – If one party considers than an error of law was made during the trial, the dissatisfied party may appeal to a higher court.
3. POST TRIAL PROCEDURE
Appeal – In most states, a person has 30 days to file an appeal (interjeter appel) :
- When an appellate court affirms or upholds a lower court’s verdict, it is agreeing with the lower court ;
- The case may be remanded = the appellate court is sending the case back to the trial court for further action. A case that is remanded usually contains an error of reasoning (erreur de raisonnement) made by the trial judge ;
- The judgment may be vacated = an appellante court replaces a decision with its own opinion or judgment ;
- The lower court’s decision may be reversed = the appellate court will reverse a trial court for an error of law.
Parties who are not satisfied with the decision of appellate court can petition the U.S. Supreme Court to hear their case.
The request is a Petition for a Writ of Certiori.
The Supreme Court is not under any obligation to hear these cases and denies (refuse) the vast majority of petitions.
4. ENFORCEMENT OF JUDGMENTS
If the losing party doesn’t pay the amount of the judgment, a writ of execution may be issued by a judge to :
- Seize certain assets of the debtor ;
- Or to garnish the debtor’s bank account or salary.
III. CLASS ACTIONS IN THE US
In a class action, a large group of people, who have common interests and stakes in the outcome, collectively bring a claim to court.
The case is tried by one or a few parties who represent many others.
Resolution of the lawsuit binds all members of the class certified by the Court.
Individual members of the class may op out of the litigation if they don’t want to be bound by the resolution of the lawsuit.
– for their own benefit = pour leur propre intérêt