Litigation
Jody Blanke
Professor of Computer Information
Systems and Law
Pleadings
Plaintiff files a complaint
Defendant files an answer
May also counterclaim or crossclaim
Failure to answer may result in default
judgment
Motion to Dismiss
Will be granted if
Court lacks jurisdiction over the subject
matter or over the parties
Plaintiff failed to properly serve the
complaint on the defendant
Plaintiff has failed to state a claim upon
which relief can be granted
Motion for Judgment on the
Pleadings
Will be granted if
There is no dispute over the facts and
the only issue is a question of law
The judge cannot consider any
evidence not contained in the
pleadings
Discovery
Often the longest stage of the process
Prevents surprises
Ex. The surprise witness in the last five
minutes of a Perry Mason episode
Narrows the issues involved
Fosters settlement of the case
Three Primary Tools of Discovery
Depositions
Sworn oral testimony of party or witness
Generally not presented at trial as
evidence, but rather, used to impeach
the credibility of a witness
Interrogatories
Written questions to a party – answers
made under oath
Request for Production of Documents
Motion for Summary Judgment
Can be made by either party
During discovery, i.e., after the
pleadings but before the trial
Will be granted if there are no
genuine issues as to any material
fact, and the moving party is entitled
to judgment as a matter of law
“Legal TKO”
The Trial
Pretrial conference
Selection of the jury
Voir dire
Opening statements
Plaintiff’s case
Direct examination
Cross examination
Motion for a directed verdict
The Trial (continued)
Defendant’s case
Direct examination
Cross examination
Closing arguments
The judge charges the jury as to the
relevant law
Jury deliberations
The verdict
Post Trial Motions
Motion for judgment notwithstanding
the verdict (judgment n.o.v. – non
obstante veredicto)
Motion for remittitur (additur)
McDonald’s hot cup of coffee case
Motion for a new trial
Appeals
Appellate review focuses on errors of
law
Appellate court may order a remand
Findings of fact generally will be
reversed only if they are clearly
erroneous, i.e., not supported by the
evidence