Civil Litigation process in State Court System: Maryland
THE LITIGATION PROCESS in Maryland (and similar
for other states)
STEP ONE: WHAT COURT TO FILE IN?
One does not need three years of law school and years of experience as
a trial lawyer to realize that there are many different courts throughout
the United States with many different functions.
While Maryland residents may use the state District Court to fight a traffic
ticket, they would not likely take the same case to the Supreme Court
of the United States. Nor would they take that same case to the state
Circuit Court in most instances. Simply put, different courts have different
types of power over different types of cases. One would not seek a divorce
in traffic court. While traffic court judges may wear judicial robes quite
similar to other judges, they lack what lawyers call subject matter jurisdiction
to hear such cases. Beyond subject matter jurisdiction, courts in a particular
state must have power over the person being sued, i.e., personal jurisdiction.
Finally, because there are many courts in many different states and counties
which have both types of power, one must determine the appropriate venue
for the lawsuit by referring to rules of court administration known as
venue rules.
I. Subject Matter Jurisdiction
To determine whether a particular court has the power to hear a particular
type of case, one must understand how the state and federal court systems
are organized and the power allotted to each type of court within each
system.
A. Federal Courts
There are many courts within the federal system, each with specific types
of power:
1. United States District Courts
Generally speaking, U.S. District Courts have the power to hear two types
of cases: (1) "Federal Question" Cases; and (2) "Diversity"
Cases. Federal question cases are those which arise under a federal law
or statute. Thus, cases which claim that a defendant's violation of federal
law caused certain damages may be brought in the U.S. District Court,
where judges skilled in the application of federal law will apply that
law to the case at hand. In most cases, claims arising under federal law
may be filed in either federal or state court as both systems are said
to "share" power over such disputes. This is known as concurrent
jurisdiction. By contrast, cases arising under certain federal laws, like
copyright and patent law, may only be filed in federal district courts
because such courts have sole power to hear them. This is called exclusive
jurisdiction.
Unlike federal question cases, diversity cases do not arise under federal
law, but typically allege a violation of state statutory or case law (known
as "common law"). While state law claims are usually reserved
for state court, they may be filed in federal court where citizens of
one state are suing citizens of another state for more than $75,000. In
such cases, we say that the parties are of "diverse citizenship"
and that the amount in controversy exceeds the requisite "jurisdictional
amount." If both requirements are met, plaintiffs have the choice
of suing in either federal or state court because there is concurrent
jurisdiction over these cases.
Each state has at least one federal district court. Larger states may
have more than one district, while very large states like New York may
have as many as four such districts dividing the state's population and
judicial workload. Though most litigants are concerned with the subject
matter jurisdiction of such trial courts as the U.S. District Court, the
federal system contains other courts with the power to hear other types
of cases. Beyond the U.S. District Court, there are specialized courts
known as the U.S. Bankruptcy Court, the U.S. Court of Federal Claims and
the U.S. Tax Court which handle a much more narrow range of cases. Furthermore,
there are two other levels of courts in the federal system which hear
appeals.
2. U.S. Courts of Appeal
Those who are dissatisfied with the decision rendered in the U.S. District
Courts may complain to the trial judge's "boss" -- the U.S.
Court of Appeals. In general, there are twelve such courts throughout
the nation presiding over "circuits" which reign over U.S. District
Courts located within specific regions. For example, those who lose cases
in the U.S. District Court for the District of Maryland may appeal adverse
decisions to the U.S. Court of Appeals for the Fourth Circuit -- the same
court that presides over federal trial courts in Virginia, North Carolina,
South Carolina and West Virginia. Although all dissatisfied litigants
have a right to appeal to the appropriate appellate circuit, this does
not allow them to try their case over again. Rather than calling new witnesses
or making new arguments, the appellate court will only reverse a lower
court decision if the trial judge committed some type of legal error in
the decision making process. Thus, a trial judge who mistakenly overruled
an objection to irrelevant and harmful evidence may be reversed for such
a legal error on appeal. However, a litigant who simply disagrees with
the jury's verdict, but cannot specify any legal error which yielded this
unfavorable outcome will likely lose on appeal as well.
3. U.S. Supreme Court
While litigants have a right to appeal adverse decisions to the U.S. Courts
of Appeal, they do not have a right to take their cases to the highest
court in the nation. In most cases, the decision of the U.S. Courts of
Appeal are final. Although litigants may seek further review by the nine
justices sitting on the Supreme Court of the United States, these justices
pick and choose only the most monumental of cases presenting the most
significant and interesting legal issues. In fact, although more than
7,000 litigants per year request that the Supreme Court hear their cases,
the high court only selects approximately 100 cases each year. Thus, every
year, the court refuses to hear many very important cases.
B. Maryland State Courts
Like their federal counterparts, each state has a system of trial and
appellate courts with specific power to hear specific types of cases.
Although each state differs somewhat in design, the lines of power are
frequently drawn with reference to the value of the cases brought before
each trial court. This is certainly true of the Maryland court system:
1. The Maryland District Courts
The lowest rung of Maryland's judicial ladder, this is where you would
expect Judge Judy or Judge Wapner to sit if they were Maryland judges.
In fact, the Maryland District Court was originally called the "People's
Court." Like its televised namesake, the District Courts hear small
claims of $2,500 or less and larger claims up to $25,000. In addition,
all such cases are heard before District Court judges as there are no
jury trials in the District Court. Small claims for $2,500 or less may
only be filed in the District Court because they are subject to the exclusive
jurisdiction of that court, while claims above that amount up to $25,000
may either be filed in the District Court or the state Circuit Court because
these two courts share concurrent jurisdiction over such matters.
2. The Maryland Circuit Courts
Like the District Courts, each county of Maryland contains a trial court
of even greater power known as the Circuit Court. While the District Court
generally may not hear claims above $25,000, the sky is the limit in Circuit
Court. Furthermore, in cases above $10,000, litigants may try their cases
before a judge or a jury, provided that the right to a jury trial is properly
invoked. Thus, if litigants choose to file suit in Maryland state courts,
the more monumental cases will be heard in the Circuit Court.
3. The Maryland Court of Special Appeals
Despite its name, there is nothing "special" about appeals which
go the Court of Special Appeals. Like the U.S. Courts of Appeal, litigants
dissatisfied with decisions of the Circuit Court have a right to take
their appeals here. By contrast, litigants dissatisfied with decisions
of the District Courts must take their appeals to the Circuit Courts,
going up only one rung in the judicial ladder.
4. The Maryland Court of Appeals
This is the state "supreme court." Like its federal counterpart,
the Maryland Court of Appeals only hears those appeals it wants to. Thus,
judges of the state's highest court turn many important cases down and
are very selective in determining the nature -- and size -- of their own
case load.
II. Personal Jurisdiction
Beyond subject matter jurisdiction, whether suit is filed in the state
or federal system, all courts must have power over the person being sued,
or "personal jurisdiction." In general, a person is subject
to the power of all courts sitting in the states in which they live or
have substantial contact. Under the United States Constitution, it would
violate an individual's due process rights to be forced to defend in distant
courts located in states where they have little, if any, contact. Thus,
to determine whether personal jurisdiction exists, courts will carefully
scrutinize the defendant's contact with and activities in the state in
which the lawsuit is filed.
Long-term contracts with Maryland businesses will weigh in favor of
jurisdiction because it is hardly a surprise that the non-resident might
become embroiled in litigation here if things go wrong.
III. Venue
A defendant who has sufficient contacts in many states may be subject
to personal jurisdiction in numerous state and federal courts -- all of
which may have the power to hear cases involving that particular subject
matter. Yet, with so many hundreds of state and federal courts throughout
the nation, one must further narrow the "venue" or precise court
in which the lawsuit may be filed.
Circuit Court or federal court have subject matter jurisdiction in lawsuits
between citizens of different states for more than $75,000.
Once we have identified a court with (1) subject matter jurisdiction;
(2) personal jurisdiction; and (3) one that is the proper venue, we may
proceed to file suit in the next step of the litigation phase.
THE LITIGATION PROCESS
STEP TWO: FILING SUIT
A lawsuit is commenced by filing a pleading known as a "Complaint."
This document contains the plaintiff's primary allegations and shows that
she is entitled to relief. While state and federal pleading requirements
differ, this pleading should typically contain allegations showing that
the court has subject matter jurisdiction in the case and should contain
a short and plain statement of the claim showing that the plaintiff is
entitled to the relief requested by alleging that the elements of a particular
claim have been met. In most cases, the Complaint may be very general
and conclusory in its allegations, only providing enough detail to place
the defendant on notice of the general nature of the claim. The specifics
of the claim will normally be pursued in later investigation during subsequent
phases of the litigation process.
In our Paula Plaintiff v. Donald Defendant lawsuit, the Complaint may
contain the following allegations:
|
PAULA
PLAINTIFF 324 Street Name Philadelphia, Pennsylvania Plaintiff
v.
DONALD
DEFENDANT 432 Street Name Rockville, Maryland Defendant
|
IN
THE CIRCUIT COURT FOR MONTGOMERY COUNTY
Case
No.:1234-97
|
COMPLAINT
Plaintiff Paula Plaintiff, by her undersigned counsel, sues Defendant
Donald Defendant, and says:
PARTIES
1. Plaintiff Paula Plaintiff is a citizen and resident of the State of
Pennsylvania.2. Defendant Donald Defendant is a citizen and resident of
the State of Maryland.
COUNT I
(Negligence)
3. On April 1, 2001, Defendant was operating her vehicle southbound on
Main Street in Baltimore City, Maryland.
4. Although he had a duty to operate his vehicle with reasonable care
and due regard for the safety and security of other persons and property,
Defendant negligently breached this duty by failing to operate his vehicle
with care and violently struck the rear of Plaintiff's vehicle as it proceeded
along the same roadway.
5. Among other things, Defendant failed to properly observe oncoming
traffic, operated his vehicle at an excessive rate of speed, failed to
comply with applicable laws regulating the operation and movement of motor
vehicles, and failed to maintain proper control of his vehicle.
6. As a proximate result of Defendant's negligence, Plaintiff sustained
substantial injuries, medical expenses, pain and suffering and lost wages.
WHEREFORE, Paula Plaintiff demands judgment against Donald Defendant
for One Million Dollars ($1,000,000.00), plus interest and the costs of
this action.
This simple pleading may be conclusory, but is satisfies all of the requirements
that the plaintiff state a legal cause of action. Although the plaintiff
may allege almost anything in the Complaint, allegations alone do not
win lawsuits -- evidence does! Thus, the plaintiff still has the burden
of producing enough evidence to prove her case regardless of how well
her complaint has been drafted. Similarly, although anyone can claim $1,000,000.00
in damages by placing this figure into her pleading, the plaintiff must
prove these damages in order to recover such monumental sums.
A. Joinder of Claims
The first set of joinder devices, which permit the joinder of multiple
claims in a single lawsuit, include the Counterclaim, Cross Claim and
Third Party Claim.
1. Counterclaim
This includes any claim against an already opposing party. Thus, if Paula
sues Donald and Donald has a claim for relief against her, he may return
the favor by shooting a litigation arrow right back at his litigious attacker:
While the Federal Rules actually require the defendant to file a counterclaim
that arises out of the same transaction or occurrence as the original
claim, and will not permit such claims to be filed in a separate lawsuit,
Maryland does not recognize counterclaims as "compulsory" or
as "permissive." Hence, under the Maryland Rules, an adverse
party may bring his claim in the form of a counterclaim, or may decide
to sue separately.
2. Cross Claim
This involves a claim against a co-party that arises out of the same transaction
or occurrence as P's original claim:
3. Third Party Claim
Also known as an "impleader" action, this is a claim by D against
E, a person who is not yet a party to the action, alleging that E is or
may be liable for all or part of P's claim against D:
By definition, a Third Party Claim must be transactionally related to
the original claim or it will be stricken.
B. Joinder of Parties
The second set of joinder devices permit many different parties to join
in a single lawsuit. There are times when such joinder is permitted and
times when it is actually required. Other joinder devices allow non-parties
to intervene in existing litigation, or to join rival claimants and force
a dispute to be resolved. Finally, the Maryland and the Federal Rules
permit class actions in which numerous plaintiffs, or even defendants,
may sue or be sued in a mammoth piece of litigation.
1. Permissive Joinder
Parties may either join as plaintiffs or be joined as defendants in the
same lawsuit if [1] the right to relief arises from the same transaction
or occurrence or series of transactions or occurrences; and [2] they present
at least one common question of law or fact.
P1+p2+p3vd1+d2+d3
2. Required Joinder
If P only sued D and E, but didn't sue F, is F a "required party"?
While this may be a complex question, courts will generally require that
a party be joined in an action where they cannot grant complete relief
in that party's absence, where existing parties might incur inconsistent
obligations, or where the absent party's interests would be impaired if
he was not joined in the action. In any of these scenarios, the court
will require that the party be joined in the action. However, if that
person cannot be joined in the action for some reason [perhaps due to
a lack of personal jurisdiction], can we proceed without him, or must
we dismiss the case? This depends on whether the court can shape the relief
so as to protect the interests of existing litigants and those who have
not been joined. If so, the show must go on. If not, the absent parties
are indispensable and we cannot live without them.
3. Intervention
If P only sued D and E, but didn't sue F, does F have a right to intervene
as a defendant in the case? If Q did not initially join as a plaintiff,
does Q have a right to intervene as a plaintiff in the case? This type
of "intervention as of right" depends upon whether the interests
of F and Q are [1] adequately represented by existing parties; and [2]
whether their interests may be impaired if they cannot enter the fray!
The court may permit them to intervene if they present a common question
of law or fact and their intervention will not prejudice existing parties.
This latter type of intervention is called "permissive intervention."
4. Interpleader
To prevent multiple liability, the stakeholder may use this neat device
to deposit the "stake" with the court, join adverse claimants
and let them fight it out!
One variation on interpleader, called an "action in the nature of
interpleader," allows the stakeholder to assert her own claim to
the stake in addition to joining adverse claimants. However, unlike regular
interpleader, a stakeholder who asserts her own claim to the stake is
not entitled to attorney's fees to reimburse her for the expense of joining
adverse claimants.
5. Class Actions
Where the above joinder devices are unfeasible, extremely big cases can
sometimes be managed in the form of class actions. But, make sure that
the prerequisites for class actions are met and that the suit fits one
of the three types of class action lawsuits. The prerequisites for class
actions are as follows:
1. Numerosity - other joinder devices must
be impractical due to the sheer number of parties;
2. Commonality - there must be a close factual
connection among all of the claims;
3. Typicality - the named class representatives
must have claims typical of other class members; and
4. Adequate Representation - the named class
representatives and their counsel must have the financial and other resources
to pull off this monstrous litigation for the benefit of all class members..
Once these four prerequisites are met, courts will certify the class action
into one of three basic types of lawsuits:
A. Class Actions Designed To Avoid Adverse Effects
from Separate Suits - this type of case often arises where there
are limited funds available to satisfy all plaintiffs if they were forced
to sue separately.
B. Class Actions for Injunctive or Declaratory Relief
C. Class Actions Where Common Questions Predominate
over individual issues. This type of class action, often found
in mass tort cases, require that individual class members receive notice
of the suit and a right to opt out. This can be very expensive in the
case of extremely large classes.
Regardless of whether your case is a simple action between two parties
fussing over a single claim or a more complex dispute, the most important
thing to remember when it comes to filing lawsuits is that they must be
filed within a certain period after the claim arose. Each state and many
federal statutes contain what are called "statutes of limitation,"
which place strict time limits on filing suit. After this time has expired,
no further action may be taken to recover damages or other forms of relief.
THE LITIGATION PROCESS
STEP THREE: SERVING THE LAWSUIT
After filing suit, the law requires that the plaintiff serve the Complaint
and a Writ of Summons upon the defendant. The Writ of Summons provided
by the court after processing the Complaint notifies the defendant of
the need to respond to the Complaint within a specified period of time.
To satisfy a defendant's rights to due process under the United States
Constitution, both the Writ of Summons and the Complaint must be served
upon the defendant in a manner that is designed to inform the defendant
of the lawsuit and of his opportunity to be heard in the matter. While
state and federal service requirements differ, the most common form of
service is completed by having a private process server or sheriff personally
hand these papers to the defendant. Other rules may permit service by
certified mail or by delivery to an adult living or working with the defendant.
If the plaintiff fails to serve the lawsuit properly, in a timely manner
and with the correct paperwork, the lawsuit may be dismissed.
THE LITIGATION PROCESS
STEP FOUR: RESPONDING TO THE LAWSUIT
After being served with a lawsuit, the defendant only has a short time
within which to respond to the Complaint. In some courts, the deadline
for a response may be as short as fifteen days, making it essential for
the defendant to retain litigation counsel immediately. Indeed, missing
this deadline could result in the entry of a default judgment against
the defendant or relinquish such fundamental legal rights as the right
to a jury trial. To prevent such dire consequences, the response to a
complaint may take one of two forms: (1) a preliminary motion; or (2)
an Answer to the Complaint.
I. Preliminary Motions
While the terminology may differ in different court systems, the most
common form of preliminary motion is the "Motion to Dismiss"
the Complaint. In these motions, defendants with good grounds may attempt
to stop the litigation process right at the start by asserting a variety
of procedural defenses to the lawsuit. Motions to dismiss for failure
to state a legally sufficient claim are frequently filed where the Complaint
does not allege the elements of a legally recognized cause of action under
the applicable law.
2. Answer to the Complaint
Beyond procedural motions, defendants may contest the merits of a case
by responding to the Complaint through a pleading known as an "Answer."
An Answer will typically admit certain allegations of the Complaint and
deny others. In addition, the Answer should also raise certain defenses
to the lawsuit, alleging that the plaintiff cannot recover on a number
of different grounds. Many of these defenses are specified in court rules
and must be raised in the Answer or waived forever. However, if the defendant
fails to raise such a defense in the Answer, it is lost forever and the
plaintiff's recovery will not be barred.
In some states, general denials of all liability are permitted when certain
types of claims are raised. This eliminates the need to respond to the
specific allegations of the plaintiff's complaint.
The following is an example of such an Answer, containing general denials
of liability and important defenses under Maryland law:
|
PAULA
PLAINTIFF 324 Street Name Philadelphia, Pennsylvania Plaintiff
v.
DONALD
DEFENDANT 432 Street Name Rockville, Maryland
Defendant
|
IN
THE CIRCUIT COURT FOR MONTGOMERY COUNTY
Case
No.:1234-97
|
ANSWER
Defendant Donald Defendant, by his undersigned counsel, hereby answers
the Complaint filed in the above-captioned action and says:
1. That Defendant generally denies liability for all claims alleged or
asserted in the Complaint.
2. That Plaintiff's claims are barred by the affirmative defenses of
(1) accord and satisfaction, (2) assumption of risk; (3) contributory
negligence; (4) duress; (5) estoppel; (6) fraud; (7) illegality; (8) laches;
(9) payment; (10) release; (11) collateral estoppel; (12) res judicata;
(13) statute of frauds; (14) statute of limitations; (15) ultra vires;
(16) waiver; (17) privilege; and (18) any other matter constituting an
avoidance or affirmative defense on legal or equitable grounds.
|
Irwin
R. Kramer KRAMER & CONNOLLY Suite 211 500 Redland Court Owings
Mills, Maryland 21117 (410) 581-0070
Counsel
for Defendant
|
The manner in which defendants respond to the Complaint may have important
consequences for the entire litigation, making it essential to assert
all applicable negative and affirmative defenses which are permitted under
the Maryland rules. Indeed, each time one drafts an Answer, one must consult
the rules to prevent missing something important. Under Maryland Rule
2-323(f), negative defenses are those matters which, if raised in the
defendant's Answer, must be proven by the plaintiff at trial.
NEGATIVE DEFENSES
They may be summarized with the following "vocal" acronym:
Validity of Instrument
Ownership of a motor vehicle
Capacity to sue or be sued
Authority to sue or be sued in a representative capacity
Legal existence of a party
AFFIRMATIVE DEFENSES
By contrast, Maryland Rule 2-323(g) contains affirmative defenses which
go beyond the elements of plaintiff's case-in-chief and must be proven
by the defendant at trial. They include such defenses as:
1. Contributory Negligence
2. Assumption of Risk
3. Accord and Satisfaction
4. Discharge in Bankruptcy
5. Claim and Issue Preclusion
6. Duress
7. Illegality
8. Fraud
9. Laches
10. Statute of Frauds
11. Statute of Limitations
When asserting negative or affirmative defenses, one fundamental rule
must be kept in mind: Use 'em or lose 'em!
THE LITIGATION PROCESS
STEP FIVE: DISCOVERY
As its name suggests, discovery is the investigative phase of the litigation
process. Unlike the surprises typical of cases tried by Perry Mason, the
discovery rules are designed to eliminate surprise by permitting litigants
to obtain substantial information regarding the facts of the case and
the opponent's positions.
Provided that the information and documentation sought is within the broad
scope of permissible discovery, the following tools may be used to gain
valuable information:
I. Depositions - in depositions, litigant
may question parties and non-party witnesses about their knowledge of
certain facts. All questions are typically asked under oath and in the
presence of a court reporter who makes a verbatim transcript of everything
the witness says.
To schedule a deposition, a simple notice of deposition is all that is
required for parties. However, for non-party witnesses who are not already
subject to the power of the court, a subpoena must be added and personally
served upon the deponent.
|
PAULA
PLAINTIFF 324 Street Name Philadelphia, Pennsylvania Plaintiff
v.
DONALD
DEFENDANT 432 Street Name Rockville, Maryland
Defendant
|
IN
THE CIRCUIT COURT FOR MONTGOMERY COUNTY
Case
No.:1234-97
|
NOTICE TO TAKE DEPOSITION
TAKE NOTICE that Donald Defendant will take the deposition
on oral examination of the following named person on the date and time
indicated below, before a Notary Public of the State of Maryland, or any
other duly qualified officer who may be selected to act in his place,
at the location specified below, to be continued from time to time until
completed.
NAME: Paula Plaintiff DATE & TIME: Friday, February
25, 2000 at 2:30 p..m.
LOCATION: Kramer & Connolly, Suite 211, 500 Redland
Court, Owings Mills, Maryland 21117
|
Irwin
R. Kramer KRAMER & CONNOLLY Suite 211 500 Redland Court Owings
Mills, Maryland 21117 (410) 581-0070
Counsel
for Defendant
|
II. Interrogatories - these are written
questions sent to opposing parties to obtain information regarding the
facts of a case. A party's response to Interrogatories must provide all
information within that party's control, even if the party lacks personal
knowledge of all such information. In the automobile accident case of
Paula Plaintiff v. Donald Defendant, typical interrogatories may include:
1. Identify all persons having any personal knowledge of all or part of
the occurrence alleged in the Complaint, including, without limitation,
their names, addresses, and telephone numbers, their precise location
at the time of the occurrence, and the identity and precise location of
all occupants in your vehicle.
2. State, concisely and completely, your version of the happening of the
occurrence referred to in the Complaint, including, without limitation,
all facts on which you base your defense to this suit that you were not
negligent.
3. If you contend that the party propounding these Interrogatories at
any time made an admission against interest with respect to any issue
involved in this litigation, state the date, place and substance of the
admission, and identify each person in whose presence the admission was
made.
4. If you were suffering from any medical condition (i.e., illness, disease,
ailment, infirmity, impairment, or disability) which may have contributed,
to any degree, to the occurrence, describe each condition, state the date(s)
you have experienced each condition, and identify all physicians, medical
practitioners, hospitals, or other institutions who provided examination,
diagnosis, treatment or care to you and the date(s) provided.
5. If you consumed alcohol, medication or drugs of any type within 24
hours before the occurrence, identify and describe the substance consumed,
the time(s) during which each was consumed, and identify all persons who
have personal knowledge of these facts
6. If you contend that the party propounding these Interrogatories acted
in such a manner as to cause or contribute to the occurrence, state any
and all facts upon which you rely to support that contention.
7. State the speed, position and direction of your vehicle at the time
of the occurrence and immediately thereafter, including, without limitation,
the part(s) of your vehicle that made contact in the collision at issue,
the movement of your vehicle, if any, immediately after the collision
at issue, and the location and position of your vehicle when it came to
a complete stop after the collision.
In federal court, litigants are normally limited to sending their opponents
25 interrogatories in a case while the Maryland Rules limit litigants
to 30 questions in Circuit Court actions, requiring parties to choose
their questions wisely.
III. Requests for Production of Documents
To obtain relevant documentation, litigants may send their opponents a
request listing the specific categories of records needed and may subpoena
similar documentation from non-party witnesses. In the case of Paula Plaintiff
v. Donald Defendant, Paula may wish to receive the following documents:
1. Any statements, whether written, recorded or otherwise, taken of the
Plaintiff.
2. Any photographs, movies, diagrams, or physical objects connected with
the subject incident.
3. Reports of any expert witnesses Defendant intends to call at trial,
and any documents used by these expert witnesses in preparing their reports
and in forming their opinions.
4. Any damages or repair bills or other documents indicating damage to
the vehicle operated by the Defendant.
5. All medical reports, medical notes, medical bills, hospital records,
or other medical information, of any kind whatsoever, pertaining to the
injuries claimed by the Plaintiff to have been sustained in the subject
incident.
6. All medical reports, medical notes, medical bills, hospital records,
or other medical information, of any kind whatsoever, pertaining to prior
or subsequent injuries, ailments or medical conditions suffered by the
Plaintiff which you have obtained through any source, including, without
limitation, subpoenas of health care providers or institutions.
IV. Mental or Physical Examinations
If an opposing party's physical or mental condition is at issue in the
litigation, and a litigant has good cause to conduct an independent examination
of that condition, the court may order such an examination. In personal
injury cases, where the plaintiff's physical condition has been placed
in controversy by the plaintiff herself, the parties typically cooperate
in the scheduling of an independent medical examination without insisting
on the filing of a formal motion.
V. Requests for Admissions
Perhaps the least used of all discovery devices, a Request for Admissions
permits a litigant to request that his opponent admit certain facts or
the authenticity of certain documents in a case. While opponents will
rarely admit the truth of devastating facts which would cause them to
lose the case, this discovery device is often helpful in requesting the
admission of facts which are not truly in dispute. This allows the parties
to streamline the trial of the case by avoiding the need to call certain
witnesses to testify to the authenticity of certain documents or to produce
evidence of uncontested facts. If an opponent refused to admit the irrefutable,
he may be required to pay the other side's expenses in producing such
evidence at a later trial.
While many lawyers overlook this discovery tool, it is rather easy for
a party to request the admission of facts or the authenticity of documents.
For example, in defending against a personal injury claim, you may wish
to ask the other side to admit that:
1. All documents produced by Defendant in this case are authentic and
genuine.
2. All documents produced by Defendant are admissible.
3. Plaintiffs have not suffered a permanent injury as a result of the
occurrence alleged in the pleadings.
4. Plaintiffs have not been granted any type of disability rating as a
result of injuries sustained in the occurrence alleged in the pleadings.
5. Plaintiffs have been discharged from medical treatment as a result
of any injuries allegedly sustained in the occurrence alleged in the pleadings.
6. Plaintiffs will not be seeking further treatment or medical evaluations
as a result of any injuries allegedly sustained in the occurrence alleged
in the pleadings.
7. There is no evidence that Plaintiffs will need to incur future medical
expenses as a result of any injuries allegedly sustained in the occurrence
alleged in the pleadings.
Should parties fail to cooperate in the discovery process, the court may
impose sanctions upon misbehaving litigants and their counsel by imposing
fines, attorney's fees, precluding certain claims and defenses, and -
in egregious cases of misconduct - by entering judgment against the violator.
Accordingly, it is important to understand and to comply with the discovery
rules by producing all necessary information.
THE LITIGATION PROCESS
STEP SIX: PRETRIAL DISPOSITION
Just because a lawsuit has been filed, that does not mean that the case
will ultimately go to trial. Much can happen en route to the courthouse
to derail a case or produce victory long before the trial itself. For
one thing, a defendant who fails to respond to the Complaint in a timely
manner may suffer a default judgment and lose the case on procedural grounds
alone. Similarly, parties who violate court rules or refuse to cooperate
in the discovery process may infuriate the Court to such an extent that
the trial judge will punish violating defendants with a default judgment
or violating plaintiffs with an "involuntary dismissal." Finally,
there are circumstances under which plaintiffs themselves wish to dismiss
their case voluntarily in order to re-group and fight even stronger another
time. In some cases, these plaintiffs may be able to voluntarily dismiss
their case while retaining their right to sue later on.
SUMMARY JUDGMENT
By far, the most common method of disposing of a case prior to trial
is a procedure known as "summary judgment." In a motion for
summary judgment, a litigant argues that there are no genuine factual
disputes which require a trial and that, in light of the undisputed facts
in the case, that litigant is entitled to win the case without one. For
example, although Paula Plaintiff's Complaint as reprinted above properly
alleges a legally sufficient claim for negligence against Donald Defendant,
it takes more than mere allegations to win a lawsuit. If Donald testifies
in deposition that he was not the driver of the vehicle which struck Paula's
car, and Paula has no evidence to the contrary or any evidence that would
hold him liable nonetheless, the undisputed facts of the case would clear
Donald of any wrongdoing. Rather than forcing the parties to undergo a
trial, the Court need not postpone the inevitable. It may enter summary
judgment for Donald long before the trial ever starts. Conversely, if
the plaintiff's case is airtight, and the defendant lacks sufficient evidence
to dispute it or to establish a valid defense, there is no need for a
time-consuming trial -- summary judgment will be entered for the plaintiff.
Under the Maryland Rules, there are several "filtration devices"
which may dispose of cases before they are submitted to the jury and it
is important to understand the similarities and differences among each.
These hurdles along the route to a verdict include:
1. The Motion to Dismiss
Under the Maryland Rules, a defendant may move to dismiss the Complaint
on a variety of grounds. These grounds include a lack of subject matter
jurisdiction, lack of personal jurisdiction, improper venue, insufficiency
of process, and insufficiency of service of process. Yet, perhaps the
most misunderstood motion is the motion to dismiss for failure to state
a claim upon which relief can be granted.
In a motion to dismiss for failure to state a proper claim, one must look
only to the allegations contained in the Complaint. If those allegations
are legally insufficient, that Complaint will be dismissed and the action
terminated.
2. The Motion for Summary Judgment
Unlike the motion to dismiss for failure to state a claim, the summary
judgment motion looks beyond the allegations of the Complaint and asks
whether there is sufficient evidence of these allegations to warrant a
trial. Viewing the evidence in the light most favorable to the non-movant,
the judge will enter summary judgment where
(1) there is no genuine dispute as to any material fact in the case;
and
(2) the movant is entitled to judgment as a matter of law. If the plaintiff
lacks sufficient evidence to prove a prima facie case at trial, there
is no need to postpone the inevitable and conduct a meaningless trial
-- summary judgment will be entered for the defendant. Conversely, if
the plaintiff's case is airtight, and the defendant lacks sufficient evidence
to dispute it or to establish a valid defense, there is no need for a
time-consuming trial -- summary judgment will be entered for the plaintiff.
3. The Motion for Judgment
Even after a trial has started, the parties may seek to prevent the case
from being submitted to the jury by moving the court for judgment. This
motion is quite similar to the summary judgment motion. While the summary
judgment motion asks whether a case should go to trial, this motion, formerly
known as the "directed verdict motion," asks whether a case
already at the trial stage should be submitted to the jury. After viewing
the evidence in the light most favorable to the non-movant, if reasonable
minds could not differ on the outcome, there is no need to postpone the
inevitable and submit the case to the jury. Instead the judge will "direct
a verdict" in favor of the appropriate party by granting the motion.
Like the summary judgment motion, a judge cannot resolve factual disputes
on a motion for judgment. If there are factual disputes to resolve, the
judge must submit the case to the jury to deliberate upon a verdict of
its own.
This motion may be made at several different points during the trial.
It may be made
(1) by the defendant at the close of the plaintiff's case-in-chief;
(2) by the plaintiff at the close of the defendant's case-in-chief; and
(3) by either party at the close of all of the evidence.
4. The Motion for Judgment Notwithstanding the
Verdict
Even if a judge is tempted to grant a party's motion for judgment at the
close of all of the evidence, she may nonetheless wish to send the case
to the jury in the interest of judicial economy. Particularly after a
lengthy trial where the parties have spent several weeks presenting evidence,
the judge may wish to obtain a verdict in the case. Indeed, if the judge
refuses to submit the case to the jury and is later reversed, the parties
will have to try the case all over again because there will be no verdict
for the appellate court to reinstate. Furthermore, if reasonable minds
could not differ on the outcome of the case, the chances are good that
the jury will do the right thing -- avoiding any need to rule on a motion.
If, however, the jury enters an unreasonable verdict, the court may always
reconsider its earlier decision when the losing party "renews"
its motion for judgment in the form of a motion for judgment notwithstanding
the verdict, or JNOV motion.
This "renewed" motion for judgment must be filed within ten
days after entry of the adverse judgment. Because this motion merely renews
the motion for judgment made at the close of all of the evidence, the
earlier motion is an absolute prerequisite to obtaining a JNOV. In this
renewed motion, the movant will repeat the grounds stated in the earlier
motion for judgment, arguing that no reasonable jury could have done what
this jury just did! In essence, the movant must convince the court that
it was, in retrospect, a mistake to submit the case to the jury in the
first place. As you can imagine, such attempts to grab a victory from
the jaws of defeat are rarely successful.
THE LITIGATION PROCESS
STEP SEVEN: THE TRIAL
There are two types of trials: Bench trials and
jury trials.
In bench trials, the judge will resolve the factual disputes presented
and issue a ruling which explains the basis for her decision.
Conversely, jury trials are heard before six or twelve members of the
surrounding community who often have no legal expertise whatsoever, but
who are sworn to decide the case fairly, impartially and on the basis
of the judge's legal instructions. To obtain a jury trial in cases where
such a right exists, a litigant must demand one in a timely manner. Generally
speaking, in actions at law where there is an amount in controversy which
exceeds $10,000, a litigant must file a written Demand for Jury Trial
within fifteen days of the last pleading (usually, the Answer), or within
ten days of the Notice of Intention to Defend filed in a District Court
action.
|
PAULA
PLAINTIFF 324 Street Name Philadelphia, Pennsylvania Plaintiff
v.
DONALD
DEFENDANT 432 Street Name Rockville, Maryland
Defendant
|
IN
THE CIRCUIT COURT FOR MONTGOMERY COUNTY
Case
No.:1234-97
|
DEMAND FOR JURY TRIAL
Defendant Donald Defendant hereby demands a trial by jury of any and
all claims and issues alleged or asserted in the above-captioned action
|
Irwin
R. Kramer KRAMER & CONNOLLY Suite 211 500 Redland Court Owings
Mills, Maryland 21117 (410) 581-0070
Counsel
for Defendant
|
Where a right to jury trial exists, determining whether to demand a jury
trial or waive that right in favor of a bench trial is one of the most
important strategic decisions facing any litigant. Depending upon the
facts of a case, and on the venue of the action, some litigants will benefit
from the common sense and sympathetic ears of jurors while others would
prefer the more restrained judicial outlook of seasoned judges. Only experienced
litigators can truly determine which route would be most beneficial to
the client's interests. Even then, this strategic decision involves a
judgment call which is not an exact science.
Jury trials begin with a selection of jurors in a process known as "voir
dire." In this phase of the trial, jurors are asked several questions
designed to determine whether they have any bias which would interfere
with their decision making.
After all of the evidence is in, the attorneys may once again address
the jurors in closing arguments. If done effectively, the closing arguments
will permit lawyers to marshal all of the facts introduced into evidence
to persuade the jury that their clients should win the case. Ultimately,
the jury will deliberate over the facts of the case and render its decision
in the form of a verdict.
JURY ROOM
Interestingly, not all trials end in verdicts. Much can happen on the
way to the jury room. Indeed, plaintiffs who fail to produce sufficient
evidence to meet their burden of proof may lose before jurors ever get
to deliberate over a verdict.
In general, to prove her case and ultimately win at trial, a plaintiff
must satisfy two separate burdens of proof:
(1) the burden of production;
(2) the burden of persuasion.
To satisfy the burden of production, the plaintiff must produce enough
evidence in her case-in-chief to permit reasonable jurors to return a
verdict in her favor.
Conversely, if the plaintiff failed to produce enough evidence to permit
reasonable jurors to return a verdict in her favor, there is no need to
postpone the inevitable and the court should "direct a verdict"
against her.
If the plaintiff has met her burden of production, and the case is submitted
to the jury, the jury must decide whether they are sufficiently persuaded
by plaintiff's evidence to return a verdict in her favor, in other words
he convinced them metting that way the burden of persuation.
Of course, the bottom line is winning. To win, a plaintiff must meet her
burden of production and her burden of persuasion. A failure to meet both
burdens will result in a loss. But, even after a loss, there is always
another step in the litigation process.
THE LITIGATION PROCESS
STEP EIGHT: POST-TRIAL MOTIONS
Even after the jury has spoken, litigants may file certain "post-trial
motions" designed to grab victory out of the jaws of defeat, to persuade
the judge to order a new trial, or to modify the result in some less drastic
way. In most court systems, within ten days of the entry of an adverse
judgment, a party may file the following motions:
I. Motion for Judgment Notwithstanding the Verdict
- in this motion, the losing litigant argues that the jury's
verdict was so unreasonable that it should be reversed in its entirety
with judgment entered in his favor. Considering the drastic nature of
this request, courts rarely grant what lawyers call "JNOV" motions.
II. Motion for New Trial - often added
as an alternative to JNOV motions, or filed on their own, this motion
seeks to try the case all over again due to a flaw in the trial process
which tainted the verdict or yielded a result amounting to a miscarriage
of justice. The trial judge has wide latitude in deciding whether to order
a new trial.
III. Motion to Alter or Amend the Judgment -
usually limited to bench trials, these motions seek to modify the court's
ruling in some less drastic way than total reversal.
After ten days have elapsed since the judgment was entered, losing litigants
have a much more difficult time in changing the result at the trial court
level and are usually limited to filing a motion to vacate the judgment
on grounds of fraud, mistake, irregularity or newly discovered evidence
which could not have been obtained by the time of trial.
THE LITIGATION PROCESS
STEP NINE: EFFECT OF JUDGMENTS
The most obvious effect of a judgment is that there is a winner and a
loser. In theory, the winner takes all - or, at least, all that the Court
has awarded.
In general, judgments are valid and enforceable
for twelve years, but may be renewed within that time frame.
Unfortunately, there are many judgments that are not worth the paper that
they were written on.
Although some litigants mistakenly believe that monetary judgments may
be "cashed in" at the Clerk's office, collection is much more
difficult.
COLLECTING THE MONEY
The Maryland Rules provide two principal tools for collecting on monetary
judgments:
(1) a Writ of Execution directing
the Sheriff to levy on property and sell it to satisfy the judgment; and
(2) the Writ of Garnishment directing
third parties to hand over money or property to satisfy the judgment.
The latter tool is most effective in obtaining the proceeds of bank accounts
or in obtaining a judgment debtor's wages.
RES IUDICATA OR CLAIM PRECLUSION DOCTRINE
Avoid same action be claimed.
Beyond enforcement, judgments also have rippling effects on other litigation,
precluding similar claims and similar issues from being tried in the future.
Under the doctrine of res judicata or "claim preclusion," one
cannot retry the same claims that were previously litigated or which should
have been raised in earlier litigation. This prevents litigants from splitting
up aspects of their cases into several different lawsuits and forces the
parties to resolve all related claims in the same action. While this doctrine
drove law students crazy, there are basically four elements for a claim
to be precluded: Where
(1) a claim involves the same transaction
or occurrence as a claim previously litigated
(2) between the same parties or their successors in interest
(3) and the prior litigation was resolved by a final judgment
(4) which operates as a decision "on the merits" of the
case, one may not raise that claim in later litigation.
Thus, if Paula Plaintiff prevailed in her personal injury case against
Donald Defendant, she cannot later sue him for property damage arising
out of that same accident. The property damage claim is precluded under
the doctrine of res judicata.
ISSUE PRECLUSSION DOCTRINE: Collateral Estoppel
Avoid same issue be claimed under different action.
Sometimes, the overall claim is not barred, but the separate doctrine
of collateral estoppel or "issue preclusion" will prevent the
same issues from being tried all over again. If Donald Defendant lost
to Paula Plaintiff in her earlier lawsuit because the jury found him negligent,
Donald Defendant's own claim against Paula in a later case would not be
precluded under res judicata principles because his separate claim would
constitute a different cause of action entirely.
However, Donald would not be able to retry the issue of whether he was
negligent in that second case. Under principles of collateral estoppel,
he would be deemed contributorily negligent because he was already found
at fault in the accident. Under the substantive law, this would effectively
prevent Donald from recovering in this case.
An issue is precluded where
(1) the same issue
(2) was actually litigated and determined
(3) by a final judgment
(4) in which the determination of that issue was essential to
the earlier judgment.
Under these circumstances, courts will not hear the same issues all
over again. In the interests of judicial economy, they may not be retried.
THE LITIGATION PROCESS
STEP TEN: APPEAL
In most cases, litigants seeking relief from adverse judgments do not
bother with post-trial motions addressed to the same courts that handed
them their losses. They go above the trial judge's head to a higher authority
-- the appellate court.
To appeal a case, a litigant must normally file a Notice of Appeal within
thirty days after the entry of an adverse judgment or, if a post-trial
motion was filed, within thirty days after the motion is decided. These
deadlines are extremely important because litigants who file their written
notices of appeal too early or too late will lose their right to appeal
and face certain and final defeat.
As a practical matter, preserving the right to an appeal is as easy as
filing the following notice:
|
PAULA
PLAINTIFF 324 Street Name Philadelphia, Pennsylvania Plaintiff
v.
DONALD
DEFENDANT 432 Street Name Rockville, Maryland
Defendant
|
IN
THE CIRCUIT COURT FOR MONTGOMERY COUNTY
Case
No.:1234-97
|
NOTICE OF APPEAL
Notice is hereby given that Defendant Donald Defendant appeals to the
Court of Special Appeals of Maryland from the final judgment entered on
February 1, 2000 by the Circuit Court for Montgomery County, in which
judgment was entered in favor of Paula Plaintiff
|
Irwin
R. Kramer KRAMER & CONNOLLY
Suite
211 500 Redland Court Owings Mills, Maryland 21117 (410) 581-0070
Counsel
for Defendant
|
If the appeal is noted in a timely manner, parties may not use this process
to try their case all over again. In most cases, appeals are heard "on
the record" by the appellate court's review of a transcript of the
trial proceedings, briefs submitted by the attorneys, and oral arguments
focusing on the law surrounding the case. On appeal, litigants must do
much more than express disagreement with unfavorable verdicts. Instead,
these appellants must show that the trial judge committed some type of
legal error which produced these adverse results. If persuaded, the appellate
court may reverse that judgment, remand the case for a new trial, or modify
the judgment in some less drastic way in light of the applicable law.
Otherwise, the judgment will be affirmed, thereby ending the litigation
process.
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