400-600 words Part 1Having experienced a robust debate discussion regarding if these two laws should be flexible, it is time to shift gears a bit and consider the broader implications of changing law

COURT PROCEDURES

Please read Unit 2, Part 2.1 of the online text (full URL: https://learn.saylor.org/course/view.php?id=89&sectionid=12019) before reading these notes. (You might need to scroll down a little to find Part 2.1.) Part 2.1 includes the introduction in 2.1, and 2.1.1 through 2.1.4. Remember that you do not do the online text’s quizzes/assessments—they will probably not even be available to you. And as long as you click on our online text’s links, you are doing the right thing for your reading, even though our online text might be linking you to another chapter in another free online text. There is more detailed information about these readings in the Week 2 Overview page in Canvas Modules.)

We’ve learned about the court systems, so now let’s explore court procedures (what the steps are for bringing a lawsuit). First, though, a disclaimer: because your online text is a general text, there are some things that in Washington State are not called what your text calls them (they might be referred to by a different name). Or, there might be different timing mentioned for some of the steps in Washington State. So when in doubt, follow the lecture notes. (That’s a good rule to follow, in general, for this course—favor my notes over, for example, any online legal dictionary you might discover, particularly when you’re taking an exam, or researching for an assignment.)

Let’s first create a fictional scenario to use for this topic, to learn how a typical case might proceed. Imagine that Pauline was purchasing a house (located in Seattle in the Phinney Ridge district) from Dina (for our purposes, a Portland, Oregon, resident). (For those of you new to the United States, Oregon is the state to the south of Washington State.) Pauline has discovered that Dina’s representations about the stability of the property, and the engineering report created in conjunction with the sale, were inaccurate, after the house started slipping down the ridge. Pauline wants to cancel (rescind) the contract for sale, or at least collect damages for repair, if repair is possible.

When Pauline visits Amy Attorney for possible representation for her lawsuit for rescission of the contract, Amy will be trying to answer a number of legal questions, depending upon what Pauline tells her. She is going to try to figure out what court will be able to hear and make a determination on Pauline’s case that will be binding on Dina, and possibly on Dirk, the engineer who drafted the report, who is also, for our purposes, a resident of Portland, Oregon. That power to hear and make a determination on a case that is binding on the parties is called “jurisdiction.” In order to pick the right court, and otherwise move forward appropriately with the lawsuit, Amy Attorney will answer the following questions:

1. Who? (Over whom does the court have jurisdiction?) This is called “personal jurisdiction.”

2. What? (Over what kind of case does the court have jurisdiction?) This is called “subject matter jurisdiction.”

3. Where? (Where should the trial be held?) This is called “venue.”

4. When? (By when should the case be filed with the court?) The deadline to file a lawsuit is called a “statute of limitation.”

5. Why? (Why can a lawsuit be filed?) This is the legal theory or authority for the filing of the case.

6. How? (How does this work procedurally—what steps need to be followed in a lawsuit?) These lecture notes will be dealing with the “how” question, most of all.

For the “how” portion of the inquiry, there are rules covering all the steps Amy Attorney will take to get this case to trial (“going to trial” is called “litigation”), unless the case settles through alternative dispute resolution. (See the Week 1 ADR notes!) As mentioned above, collectively, the rules/actions for these litigation steps in a civil (non-criminal) case are called “civil procedure.”

To help answer those questions (except “How?,” since Amy would know the procedural part already), Amy will probably interview Pauline (or Amy’s paralegal (legal assistant) will do so)), to get all of the facts, at least from Pauline’s perspective. (I’m using the two terms of paralegal and legal assistant interchangeably, but some law firms consider the two to have different job descriptions.)

Then Amy will figure out what law applies to the facts (using our four primary sources of law you learned about in the Legal System notes, and maybe some secondary sources), and research might be required. In other words, Amy will need to satisfactorily answer the “why?” question first (whether there is a legal basis for a lawsuit), before Amy can file a lawsuit against Dina and Dirk, because she is required to do so by Washington court rules and ethics rules.

In this particular case, Amy will probably assume (from the facts reported by Pauline) that Dina and Dirk could have intentionally or negligently misrepresented the condition of the property to Pauline, or that Dirk was negligent in his preparation of the report, and that the contract was therefore not based upon a true meeting of the minds, and conclude that Dina and Dirk could therefore be legally liable to Pauline.

Amy might also try to use alternative dispute resolution (“ADR”—again, remember your readings and the lecture notes posted about ADR in the Week 1 module in Canvas Modules) to resolve the matter, before a lawsuit is filed on behalf of Pauline.

If the case had been about a car accident occurring in Washington between Pauline, a resident of Washington and Dina (again, for our purposes, Dina is a resident of Portland, Oregon), Amy’s research and evaluation would probably have been a little different. When a party fails to reasonably conform her conduct to the standard of care for a particular activity, that party can be found to have been “negligent,” and liable to the injured party for “damages.” Negligence occurs when

1. there is a duty to act in a particular way (like driving safely and in accordance with motor vehicle laws),

2. a party breaches that duty, and,

3. as a result of the duty breach,

4. the other party is injured-- physically, financially, or otherwise.

The causal link between the negligent party’s breach of duty and the injured party’s damage is often called “proximate cause.” As far as Amy would be concerned, in that scenario, the driver whose vehicle hit her client, Pauline, could be found negligent, so, in that scenario, Amy would be justified legally in filing a lawsuit on her client’s behalf against the other driver, under the legal theory of negligence.

Let’s return to our original scenario. In our hypothetical land sale claim, Amy Attorney would have discovered that the law generally allows one party to a contract to seek rescission (cancellation) of that contract, when the other party made false representations that induced the claimant to make the purchase, or might just allow a money payment (damages) for the cost of repair. So again, Amy would be justified legally in filing a lawsuit on her client Pauline’s behalf, against the seller, Dina. Amy would also have discovered that the law allows a party to sue another party on the basis of professional negligence, potentially allowing a lawsuit against the engineer, Dirk, for damages. (Washington law is a little more challenging and complicated here, when construction law is involved, but Amy has at least a good argument that Pauline could have a viable claim.) (Amy will therefore have answered the “why” question.)

We haven’t really talked about the other four questions, though, which Amy will have to satisfactorily answer, if she wants to file a lawsuit. So let’s return to the other questions.

What about our two kinds of jurisdiction (the “over whom?” and “what type of case?” questions)? (You are required to have both personal and subject matter jurisdiction, in order for the judge to have jurisdiction over the case.)

In order for the court to have personal jurisdiction over Dina and Dirk, the court has to be satisfied that Dina and Dirk have at least “minimum contacts” with Washington State, even though they are Oregon residents, or “citizens.” In other words, it would not be fair for a Washington court to tell an Oregon resident what to do, unless the Oregon resident had some reasonable connection (“minimum contacts”) with Washington. When a person sells her property in Washington, or drives a car in Washington, and causes an accident in Washington, or otherwise commits a negligent act in Washington, the State Legislature and the courts have decided that there are sufficient contacts with Washington to allow the Washington courts to have personal jurisdiction over the seller or driver. We even have a special name for a legislature’s statute that allows the “long arm of the law” (the Washington courts, in our example) to reach out and yank someone into a Washington court, if that someone does something that impacts a Washington resident (like defrauding a buyer or injuring a driver). Statutes like that (and remember that Washington statutes are found in the “RCW”) are called “long-arm statutes.” The particular “long-arm statute” in Washington is RCW 4.28.185. (You might remember RCW 4.28.185 as the example I used for citing statutes in the RCW, in the Week 1 Legal System lecture notes.)

The ways to have personal jurisdiction over the potential party to a lawsuit are:

1. a person’s consent to personal jurisdiction; or

2. the person’s presence within the jurisdiction; or

3. proper service of process on the person (see below for a description of the concept of service of process); or (the way explained above)

4. “minimum contacts” (enough of a connection with the forum state (the state where the lawsuit would be filed) that it would be “fair” for the court to have personal jurisdiction over the parties—this is the principle upon which the long-arm statutes are based).

To answer the “what” question, we need to remember the Superior Court (the “lobby” in our “hotel” metaphor that we used to represent the Washington state court system). As mentioned in the Week 1 Legal System notes about Washington state courts, almost every kind of case can be heard in the Superior Court, as a trial court, because it is a court of “general jurisdiction.” We also covered in the Legal System notes about how the state district court is a court of “limited jurisdiction.” Practically speaking, what this means is that, in Washington, if the “amount in controversy” (amount in dispute) exceeds $100,000, then the state district court would not have “subject matter jurisdiction” over the case. (A Washington State District Court’s subject matter jurisdiction is limited to cases where the amount in controversy is $100,000 or less). What this means for our sample case is that only the Superior Court would have subject matter jurisdiction. (With the cost of houses in King County, we can assume Pauline’s damages are potentially over a hundred thousand dollars, even in a challenging housing market).

Next, we have to answer the “where?” question—and in Washington, we answer the “where” question by looking at the geographic units in the state—the counties. So “venue” is always identified for Washington state court cases by referring to the county where the trial will be held. In the RCW (RCW 4.12), there are several venue statutes. And one of them specifically covers real property (land) cases, while another statute states that in auto accident cases, venue is the county where the accident occurred, or where the defendant’s residence is. So, for our scenario, we have to figure out the county where the land is located. It’s King County, so King County (in other words, we wouldn’t say “Seattle”) would be the proper venue (place of trial) for our case.

Finally, we’ll answer the “when?” question. The statute of limitations (deadline for filing a lawsuit) for breach of a written contract is six years (by contrast, the statute of limitations for personal physical injury in Washington is three years from the date the injury occurred, as it would be for negligent misrepresentation). So the lawsuit against Dina would have to be filed by six years from the date of breach (one could probably say that it would be from the date of alleged misrepresentation), or Pauline would be out of luck. Pauline, as the person who has the claim (is “complaining”) is called the “plaintiff.” (If the claim against Dirk is characterized as a breach of written contract claim, it would also have a six-year statute of limitation, but negligence claims are in the three-year category.) Dina and Dirk, as the persons who have to defend against the claim, are called the “defendants.”

To recap: In our sample case,

1. the Washington Superior Court has “personal jurisdiction” (because of the long-arm statute and Dina and Dirk’s minimum contacts with the state of Washington—the answer to the “who” (over whom) question);

1. the Washington Superior Court has “subject matter jurisdiction” (because of the type of “civil” case, with an amount in controversy exceeding the state district court’s jurisdiction—the answer to the “what” (type of case) question);

1. Pauline has a couple of potentially viable legal theories upon which to proceed, and remedies to seek, answering the “why” question of why she can sue (rescission (cancellation of the contract), or possibly damages, based upon misrepresentation, plus possibly damages based upon professional negligence);

1. and the lawsuit properly should be filed in King County (“venue”—the “where” question);

1. no later than six years from the date the contract breach occurred (statute of limitation probably used against Dina, the “by when” question), or no later than three years from the date of the professional negligence (statute of limitation probably used against the engineer).

Now I’ll change the approach a little. If Amy Attorney decides that a federal court jury might be kinder to her client(s) than a state court jury, she’d check out whether she could favorably answer the five “W” questions under federal law. This is what she’d discover:

The “who” question (federal):
The personal jurisdiction/minimum contacts standard is the same, so there would be federal district court personal jurisdiction over all the parties.
The “what” question (federal):
There are two primary ways that the federal district court (the trial court) can possibly have subject matter jurisdiction:

1. “federal question jurisdiction” (this type of subject matter jurisdiction requires that the case involve an issue arising out of the U.S. Constitution, a federal law, or a treaty) The citation for the federal statute including this type of subject matter jurisdiction is 28 U.S.C. §1331 (again, you might recall that this was the example I used for a federal statutory citation in the Week 1 Legal System lecture notes—it means Title 28 of the United States Code, Section 1331); and

1. “diversity jurisdiction” (this type of subject matter jurisdiction requires that no plaintiff be a citizen of the same state as any defendant, and the amount in controversy exceed $75,000—28 U.S.C. §1332—the court needs both of those elements to exist, for the court to have diversity jurisdiction).
   

In our scenario, the legal theories are misrepresentation, as a defense to contract enforcement, and professional negligence, neither of which involves the Constitution, federal law or a treaty (therefore, no federal question jurisdiction), so we’d have to check the possibility of diversity jurisdiction. We’d have diversity jurisdiction (and therefore subject matter jurisdiction) here, because no plaintiff (Pauline, a citizen of Washington state) is a citizen of the same state (Oregon) as any defendant (Dina/Dirk), and the “over $75,000” amount has been satisfied.
The “why” question and the “when” question (federal):
We’d have the same ”why?” answer (misrepresentation/professional negligence), and the same “when?” answer (because federal court would adopt the same statute of limitations as Washington had).
The “where” question (federal):
Then we’d deal with the ” where?” question: In federal district court, venue would be where the claim arose (transaction occurred) or the defendant resided—and plaintiff Pauline, through her attorney, Amy, would initially get to choose among available venues (a federal statute gives the choices—28 U.S.C.§1391)—so Pauline (through Amy) could either choose the Western District of Washington (the applicable courthouse is located in Seattle), or the District of Oregon (which has a courthouse in Portland), depending upon such considerations as convenience, Amy’s admission to practice in the federal courts in both places, any difference in jury generosity assessed by Amy, and any wishes of the client.

But what exactly is involved in the filing of a lawsuit? The documents the parties use to state their claims (why they’re suing, and what relief they want as a result), and/or their defenses (ways to avoid liability), are called the “pleadings.”

The plaintiff’s pleading, which sets forth the plaintiff’s claims, is called the “complaint.”

I thought you might like to see what a real complaint looks like, and we might be able to discuss its components during our Week 2 chat, so here is a federal district court website containing a complaint involving the Federal Trade Commission and Amazon (full URL:

https://www.ftc.gov/system/files/documents/cases/140710amazoncmpt1.pdf) Once you click on the website link, scroll down to the bottom document, a complaint for permanent injunction and other equitable relief, and click on that wording. You should be able to see the complaint.

Once the complaint has been drafted, Pauline has to give Dina and Dirk notice of the fact that she has claims against them, and is proceeding against them in court. The way this is done is to “serve” (usually this means to personally deliver) copies of the complaint to Dina and Dirk, along with the “notice” that she is suing them, which is called a “summons.” Washington State court summonses are very similar to federal district court summonses, and the basic format for how a summons should look is given in Washington State Civil Rule 4, subpart (b)(2). (Full URL:
http://www.courts.wa.gov/court_rulesLen/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr04 ) You can see the sample summons in subpart (2) by scrolling down your computer screen, once you click on the link to the Civil Rule 4 website.

RCW 4.28.080 (full URL: http://app.leg.wa.gov/rcw/default.aspx?cite=4.28.080 ) tells about common variations for serving a summons and complaint (together called “process,” so you might hear it referred to as “service of process”). The 2015 changes to RCW 4.28.080 involve the addition of a new category of service, and renumbering of a couple of the statutory sections:

…(15) If against a party to a real estate purchase and sale agreement under section 1 of this act, by mailing a copy by first-class mail, postage prepaid, to the party to be served at his or her usual mailing address or the address identified for that party in the real estate purchase and sale agreement.
(16) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.
(17) In lieu of service under subsection (16) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" does not include a United States postal service post office box or the person's place of employment.

The defendant’s primary pleading is called an “answer.” Dina and Dirk must each file and serve an answer to the complaint within 20 days (same time frame for both federal and Washington State cases) of being served, generally, or they can be found “in default” (for failing to respond), and Pauline can ask the court to enter a default judgment. If that happens, a defaulting party loses the case, and is liable for any judgment, without ever having a chance to defend herself or himself. (Notice that the 20-day period to respond is a shorter time frame than the one mentioned in the online text of 30 days.) Obviously, the defendants here will want to answer, or else they could be held liable, without trial, for the full amount of relief Pauline is seeking.

A typical answer potentially includes several components, not just one. First, the answer includes all the admissions and denials the defendant wants to make, to respond to the plaintiff’s complaint “allegations” (for instance, if the complaint contains “allegations” (assertions of fact) of misrepresentation—Pauline claims that Dina misrepresented the property condition—then Dina, in her answer, can deny that she misrepresented any material facts, assuming that’s true). But most answer pleadings do not stop there. The answer also includes affirmative defenses (ways the defendant can avoid liability, in whole or in part). (Note: you can see already that the answer does not just include responses to plaintiff’s complaint allegations, as you might think from your online text or other sources. Be aware of these other components, like affirmative defenses—discussed above and next—or counterclaims or cross-claims—discussed below, which will also be a part of the answer, if applicable.)

I’m going to switch to the auto accident scenario for my discussion of affirmative defenses to be included in the answer, because it’s a little easier to follow for the next point I’m making. Let’s make Pauline the plaintiff driver, and Dina the defendant driver, and say that they both were negligent (breached some duty of care, causing the other party damage). So, Dina, the defendant, may assert that even if she (Dina) is found to be negligent, she still should not have to pay Pauline for all Pauline’s claimed damages, because Pauline was negligent, too. This affirmative defense is, in Washington, called “contributory negligence,” because the idea is that plaintiff helped cause (contributed to) her own damages, and therefore shouldn’t get to collect all the money from defendant Dina, if Pauline was partially at fault, as well.
(This is an example of how my notes should be relied upon, over what you might read in the more general text: You might, in the Torts unit we’ll be getting to in Week 4, see a discussion in your text, or hear a lecture on www.youtube.com, about “comparative negligence,” and that’s what’s really going on in Washington. Even though Washington calls this legal principle that would be an affirmative defense, “contributory negligence,” Washington intends for it to be a “comparative negligence” treatment/approach. We’ll re-visit this concept in the Torts unit, but I wanted to give you a heads-up here that sometimes, in Washington, the same words are used to cover different legal concepts.)

Under Washington’s approach, if Dina, in her answer to Pauline’s complaint, were to include the affirmative defense of Pauline’s contributory negligence, and Dina’s attorney, Lenny Lawyer, successfully proved Pauline’s contributory negligence at trial, Pauline’s recovery from defendant Dina should be reduced by the percentage Pauline caused her own damages. For example, if Pauline were found to be10% negligent, and her total damages were $120,000, then Dina would only have to pay Pauline 90% ($108,000), under the Washington principles of contributory negligence.

Here is an example of an answer to a complaint that contains many affirmative defenses: Apple answer to complaint (full URL: https://docs.justia.com/cases/federal/district-courts/michigan/miedce/2:2007cv13164/222885/9)

You can move from page to page in this answer by clicking on the right arrows at the top of the document, which move from page 1/10 to page 10/10. The affirmative defenses do not begin until page 6/10.

(You are not required to do any of the above—this is just for those who would like to see how pleadings look, including affirmative defenses in answers.)

The case ultimately settled (alternative dispute resolution!), as covered in this article (you might have to skip some ads to get to the article content): settlement of Eight-Mile Style v. Apple lawsuit (full URL: https://variety.com/2009/biz/news/eminem-s-eight-mile-style-apple-settle-1118009527/)

From the “pleading” stage, we’ll move to a part of civil procedure that can happen at any time: motions. At any time during a lawsuit that a party wants to get some type of order from the judge, the party’s attorney can file a “motion” (an application for an order). If the party wants to challenge the legal viability of the complaint, or the validity of the service of the summons and complaint, at the first stage of litigation, the pleading stage, for instance, the party files a “motion to dismiss” the complaint.

Assuming that the complaint is not dismissed, and the pleadings have been filed and served, the parties can conduct formal investigation of their case, to collect evidence to prove their theories and the facts at trial. This formal investigation is called “discovery.” There are five methods of discovery, in both state and federal law. (Your online text only mentions four, as it left out the physical and mental exam category, which generally would only apply in a personal injury lawsuit.) (As mentioned above, these discovery methods can generally only be used after the complaint has been filed.) Four methods can be used to demand information only from other parties (in both our scenarios, Pauline and Dina would be parties, as plaintiff and defendant, and, in the breach of contract/professional negligence case, Dirk would be a party defendant, as well):

• Interrogatories (questions or statements of inquiry, in writing)

• Requests for production of documents and tangible things (things you can touch, like Dina’s car, in the auto accident scenario), and access to land (which would likely be necessary in the breach of contract scenario)

• Physical or mental exam (only when the party has put a physical/mental condition in issue)—for example, in the auto accident scenario, Dina’s attorney could request that Pauline submit to a physical exam by Dina’s attorney’s designated doctor expert, because Pauline has claimed physical injuries in the lawsuit, but in the land sale scenario, no physical or mental exam would be allowed, because no personal physical or mental condition has been put into issue through Pauline’s complaint)

• Requests for admission (asking the other party to admit that some fact was true (like Dina was the owner of a specific make/model/year/VIN of car on the date of the accident, in the auto accident scenario), or that some document (like the contract for the sale of land in the breach of contract scenario) was “genuine”)—if these admissions occur pre-trial, the party obtaining them does not need to worry about proving them at trial

The fifth kind of discovery method can be used against a party or non-party:

• Depositions (testimony under oath before a court reporter) For example, using the auto accident scenario, let’s focus on Pauline’s passenger, Walter, who did not have any damages, and was not a party to the lawsuit, but might be deposed (have a deposition taken) as a witness to the accident; Pauline or Dina might also be deposed, as parties. Dina’s attorney, Lenny Lawyer, would depose Pauline, and Amy Attorney would depose Dina; whichever side wanted to depose the passenger witness Walter would have to pay for the passenger’s deposition, because the party calling for (“noticing”) the deposition has to pay for it.

If a party wants to either depose a non-party witness, or get access to documents or other things held by the witness (for example, a non-party witness’ cell-phone pictures or videos), it must be done by “subpoena” (a court order that can often be issued by one of the party’s attorneys, if court rules allow that). The subpoena is called a “subpoena duces tecum” if it requires the non-party witness to not only appear, but to produce the documents or other things, examples of which were mentioned above.

Motions can also be used to obtain court orders during the discovery stage. For example, if one of the parties refuses to cooperate with discovery requests, the other party can file a motion to compel responses to discovery. On the flip side, if one party does not want to reveal certain information, that party can file a motion for a protective order. The judge decides whether either of these orders will be issued. (Note: in Washington, and in federal district court, the parties are required to try to resolve any discovery disputes first, before running into court for a court order.) Motions to compel a subpoenaed non-party witness to appear for deposition, and/or produce the documents or other things listed in the subpoena are “contempt” motions. Motions of the subpoenaed non-party witness to obtain a court order saying that the non-party witness does not have to comply with the subpoena are called “motions to quash.”

If a party investigates, conducts discovery, and from all the facts discovered, is able to claim and establish (prove) to the court that

1. there is no genuine issue of material fact (no dispute about the key facts in the case), and

2. the moving party is entitled to judgment as a matter of law (the law is on the side of the moving party),

the court can grant a “motion for summary judgment,” and this will dispose of (end) the case before trial.

Except in King, Pierce, and Benton Counties, where the trial date is often given to the plaintiff (scheduled) on the same day the complaint is filed, the parties will ask the court administrator or judge to set a trial date, or the court will tell the parties to schedule a trial date, after the parties have had time to gather evidence through discovery.

When the case is called for trial, in a jury case, the parties (through their attorneys) will have an opportunity to question potential jurors, to see if they are biased, and a party would therefore not get a fair trial. The potential jurors are randomly selected from either voter registration records or driver’s license records. The juror questioning process is called “voir dire,” which, in French, has been loosely translated as “to watch the telling/talking” (literally, the term contains the verbs for “to see” and “to say”). In other words, the attorneys are asking the jurors questions, watching the jurors talk, and trying to figure out if the jurors are biased. (Another linguistic attribution is to the Latin, for “to speak the truth,” which is what you want the potential jurors to do, to determine whether they are biased.)

There are two ways jurors can be challenged:

1. peremptory (you can get the judge to excuse a juror for no stated reason—except that according to the United States Supreme Court, you cannot use peremptory challenges to discriminate against all jurors of a protected class (for example, excusing all women, or all African-Americans); there are only a limited number of peremptory challenges available, sometimes as low as three) and

2. for cause (because of some bias, actual or presumed, for example, you are related to one of the parties (there are unlimited challenges for cause).)

[As a side note: I was called for jury duty in the summer of ’08, in Skagit County, and more recently in California, but was excused, due to family care obligations. My husband has served as a juror in a criminal case in Skagit County. As mentioned above, names for jury duty are usually derived randomly from voter registration records and drivers’ license records.]

Before trial, if a party wants the judge to exclude certain evidence (for example, evidence obtained through an illegal search), the party could again use the “motion” procedure, and would file a motion in limine (Latin for “at the threshold” (of trial)). (In criminal law, this type of motion is often called a “motion to suppress.”)

During trial, the sequence is usually as follows:

• Plaintiff (meaning “plaintiff’s attorney”) makes an opening statement, previewing plaintiff’s case (during our courthouse field trip visit one time, some students observed opening statements in a criminal case—each attorney was so well prepared, that you really wanted to find out who wound up being the victor)

• Defendant (meaning “defendant’s attorney”) makes an opening statement, previewing defendant’s case

• Plaintiff puts on plaintiff’s case (plaintiff’s attorney introduces evidence, questions witnesses—plaintiff’s attorney directly questions the witnesses plaintiff’s attorney had arranged to be at trial (direct examination), and defendant’s attorney can then “cross-examine” plaintiff’s witnesses)

At this point, if defendant’s attorney thinks that plaintiff hasn’t proved plaintiff’s case, despite plaintiff’s best attempt and complete opportunity to present evidence in support of plaintiff’s case, then defendant’s attorney can file a “motion for judgment as a matter of law” (used to be called a “motion for nonsuit”—because the claim is that there is really “no suit”—in Washington and federal courts. Even though the wording has been officially changed in the court rules, that doesn’t mean that attorneys have necessarily adopted the official language as the vernacular, however—they often just keep calling procedures by their former names).

• Defendant puts on defendant’s case (same idea, from the defense side)

Either side can make a motion, also called a “motion for judgment as a matter of law” (used to be called “a motion for directed verdict” in Washington—again, often still is, even though the court rules for Washington (and federal court) say otherwise!). The moving party argues to the judge that the case doesn’t really need to go to the jury—claims that the jury really doesn’t need to find any facts, because the other party put on all the evidence it could, and still didn’t prove anything. If the judge agrees, all or part of the case is dismissed, depending on the coverage of the motion.

• Attorneys make closing statements (during a different court visit for this course, we saw closing statements (also sometimes called “closing arguments”) in a criminal law case)

• The jury is instructed by the judge (if this is a jury trial), using instructions about what the law is in Washington, which begin as proposed instructions submitted by the parties’ attorneys to the judge, and which are then reviewed and sometimes edited by the judge, who determines which proposed instructions will be used in the case, as being the best statement of the law

• The jury deliberates (again, if this is a jury trial) (“deliberates” means meets in private to decide a result for the case, or answer questions ordered to be answered, by the judge; the jury is only allowed to follow jury instructions—not to do independent research about what the law is or should be, but instead come to a decision based only upon the evidence presented at trial, as instructed in the jury instructions)

• The jury renders a verdict

If this is a “bench” trial (heard only by the judge), then the judge will render a verdict after the parties’ attorneys’ closing arguments.

Once again, the party unhappy with the verdict can make a “motion for judgment as a matter of law”—the old term in Washington was a motion for judgment non obstante veredicto (notwithstanding the verdict) or “jnov.” (Guess what—attorneys might still use the old term, even though the state and federal court rules don’t officially do so.) But judges are reluctant to overturn jury verdicts, so seldom grant these types of motions.

If a party believes the trial court judge made an error, or there were other errors alleged in the trial court proceedings (like juror misconduct), the party can appeal, or request discretionary review of, a case. The case will usually be reviewed for errors of law by the State Court of Appeals (Washington State) or the Ninth Circuit Court of Appeals (federal), for Washington cases. The appellate court can only make a decision about the applicable law, not what the facts were. The facts are determined at the trial court level (by jury or judge), not the appellate court. So the appellate court gets to review the “record” of what happened in the trial, including the findings of fact, before making a decision on appeal.

In the alternative, the party can make a motion for a new trial. (Sometimes, parties hedge their bets by filing a notice of appeal and motions for judgment as a matter of law and for a new trial. Any of these filings that become non-applicable are then dropped (for example, if the motion for new trial is granted, then the party doesn’t need the court to grant the motion for judgment as a matter of law—the case will be retried).)

If a party wins the trial, judgment is entered, and the victor (the party who wins) may take steps to enforce the judgment (for example, collect any money the court determined was owed to the victor by the losing party). There are many rules about how to collect a judgment, but there is no guarantee that a successful party will actually be able to collect. Money or property must be available and accessible to pay the judgment.

So—it’s a long and complicated process to litigate a case (proceed towards trial). This is an extremely condensed version, but I hope you have a greater understanding of the process!