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Title: Pro Se Litigation in California State Court: Techniques, Strategies, and Helpful Hints
Pro se litigation, or representing oneself in court without the assistance of an attorney, can be a challenging endeavor. However, with the right techniques, strategies, and helpful hints, individuals in California can navigate the state court system effectively. This treatise aims to provide a comprehensive guide for pro se litigants in California state court, offering valuable insights and practical advice to help achieve a successful outcome.
I. Understanding the Basics of Pro Se Litigation in California:
1. Familiarize Yourself with the California State Court System:
- Gain a basic understanding of the structure, hierarchy, and jurisdiction of California state courts.
- Identify the specific court where your case falls under, such as small claims court, superior court, or appellate court.
2. Research and Comprehend Applicable Laws and Rules:
- Conduct thorough research on the relevant laws, statutes, regulations, and court rules that pertain to your case.
- Familiarize yourself with the California Code of Civil Procedure, California Rules of Court, and any local rules specific to the court where your case is filed.
3. Understand the Procedural Steps and Timelines:
- Learn about the various stages of litigation, including filing a complaint, serving the opposing party, discovery, pretrial motions, trial, and post-trial procedures.
- Be aware of the specific deadlines and timeframes associated with each stage, ensuring compliance with procedural requirements.
II. Effective Techniques for Pro Se Litigation:
1. Thorough Case Preparation:
- Gather and organize all relevant documents, evidence, and supporting materials for your case.
- Create a case timeline, outlining key events, deadlines, and necessary actions.
- Develop a comprehensive understanding of the legal arguments and defenses applicable to your case.
2. Clear and Concise Legal Writing:
- Draft pleadings, motions, and other legal documents using clear and concise language.
- Follow the proper formatting and citation rules, adhering to court requirements.
- Present your arguments logically and persuasively, supporting them with relevant legal authorities and evidence.
3. Effective Communication and Courtroom Decorum:
- Maintain professionalism and respect when communicating with opposing parties, court staff, and judges.
- Follow courtroom etiquette, including proper attire, addressing the court, and waiting for your turn to speak.
- Clearly articulate your arguments, objections, and responses during hearings or trial proceedings.
III. Strategies for Pro Se Litigation Success:
1. Seek Legal Information and Resources:
- Utilize online legal resources, self-help centers, and libraries to access legal information and forms specific to California state court.
- Consider consulting with legal aid organizations or pro bono attorneys who may provide limited assistance or guidance.
2. Utilize Alternative Dispute Resolution (ADR) Methods:
- Explore mediation, arbitration, or settlement conferences as potential avenues for resolving disputes outside of court.
- Familiarize yourself with the ADR processes, rules, and benefits to effectively negotiate and reach a favorable resolution.
3. Engage in Diligent Discovery:
- Understand the discovery process, including interrogatories, requests for production of documents, and depositions.
- Prepare well-crafted discovery requests and responses, ensuring compliance with the rules governing discovery.
4. Master Courtroom Procedures and Techniques:
- Observe courtroom proceedings prior to your own trial to familiarize yourself with the process.
- Practice presenting your case, including direct and cross-examination techniques, opening and closing statements, and evidentiary objections.
IV. Helpful Hints for Pro Se Litigation in California:
1. Maintain a Professional Demeanor:
- Remain calm, composed, and respectful throughout the litigation process.
- Avoid personal attacks or emotional outbursts that may undermine your credibility.
2. Stay Organized and Detail-Oriented:
- Keep meticulous records of all case-related documents, correspondence, and communications.
- Create a system to track deadlines, appointments, and court appearances.
3. Seek Assistance When Necessary:
- Recognize your limitations and seek help from professionals, such as legal document assistants, paralegals, or consultants, for specific tasks or guidance.
4. Continuously Educate Yourself:
- Stay updated on changes in California laws, rules, and court procedures that may impact your case.
- Attend legal workshops, seminars, or webinars to enhance your knowledge and skills in pro se litigation.
Pro se litigation in California state court requires careful preparation, a strong understanding of the legal system, and effective strategies. By following the techniques, strategies, and helpful hints outlined in this treatise, pro se litigants can navigate the complexities of the California state court system with confidence. Remember, while representing oneself can be challenging, with proper preparation and diligence, pro se litigants can achieve successful outcomes in their cases.
Response to a Motion to Dismiss If a defendant files a motion to dismiss, the plaintiff will need to file an opposition to that motion. The response must specifically assert facts and law that explain why the motion to dismiss should be denied. Any opposition to the motion to dismiss is typically due fourteen (14) days after the defendant files the motion. Check the Local Rules for deadlines specific to your District. To calculate the deadline, exclude the day that the defendant files the response, and 28 beginning counting the next day. Count every day, including weekends and holidays. The response is due on the fourteenth (or seventeenth, if mailed) day, unless that day is a Saturday, Sunday, or legal holiday, in which case the response is due on the next day that is not a Saturday, Sunday, or legal holiday. See Federal Rule of Civil Procedure 6. If you need more time to file your opposition, you need to file a motion for extension of time with the Court. If you can, contact the opposing side and get consent. If you get consent for an extension, make sure that consent is reflected in your motion. If you cannot get the consent from the other time, file the motion for extension of time before the response is due and show there is “good cause” for the extension. Federal Rule of Civil Procedure 6(b). If a motion for extension of time is filed after the due date, you must show “excusable neglect” for missing the deadline. Federal Rule of Civil Procedure 6(b). 29 CASE MANAGEMENT PROCEDURES What is a Case Management (Rule 16) Conference (“CMC”)? A case management conference (“CMC”)—sometimes referred to as a Rule 16 Conference—is held shortly after the action commences. The purpose of the conference is for the judge and parties to set the trial date, as well as other key deadlines for initial disclosures, discovery, and pretrial motions. Does Every Case Have a Case Management Conference? No, some categories of actions are exempt from CMCs. Refer to the Local Rules for your District. How do I prepare for it (Rule 26)? At least 21 days before the CMC, all parties and their lawyers MUST “meet and confer,” either on the phone or in person, to try to agree on a number of issues. The purpose of the meetand-confer process is to save time by requiring parties to agree on as much as possible and to understand each other’s positions. The parties should be prepared to: 1. Discuss the basis of the claims and defenses; 2. Discuss resolution through settlement; 3. Arrange for the initial disclosure of information by both sides as required by Rule 26(a)(1) including: a. an exchange of names and contact information of individuals with discoverable information; and b. a list of certain documents described in FRCP 26(a). 4. Agree on a discovery plan; 5. Select an alternative dispute resolution (“ADR”) process: mediation, early neutral evaluation or settlement conference (discussed later in this Handbook); 6. Prepare and file a joint written report outlining the discovery plan. 30 Preparing the Discovery Plan (Rule 26(f)(2)) The proposed discovery plan is a written proposal on how the parties expect to conduct discovery, i.e. a schedule of when and how the parties will exchange documents and conduct depositions in order to learn the facts of the case. The parties must make a good faith effort to agree on a proposed discovery plan for the judge to review and determine how discovery should proceed. The plan should include each parties’ views and proposals about: 1. Changes that should be made in the timing, form, or content of disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; 2. The subjects, timing, and issues for discovery; 3. Limitations on discovery imposed by Federal or Local Rules; 4. Other orders that the Court should consider under Rule 26(c) or under Rule 16(b) or (c). What is the Case Management Order? During or after the CMC, the judge will issue a Case Management Order, which sets the schedule for the rest of the case. The Case Management Order will govern the case unless and until it is changed later by the judge. A Case Management Order “shall not be modified except upon a showing of good cause and by leave of the district judge.” Federal Rule of Civil Procedure 16(b). If you want to change the deadlines set forth in the Case Management Order, you will need to file a motion requesting that the deadlines be changed and show good cause for the request. What happens at a Court hearing? A hearing is a formal court proceeding in which the parties present their arguments to the judge and answer the Judge’s questions about the motion or other matter being heard. 31 Sometimes witnesses can be presented at these hearings. You should prepare for a hearing by reviewing all papers that have been filed for the hearing and expect to answer questions about issues that are being addressed at the hearing. Organize your papers so that you can find things easily when you need to answer the Judge’s questions. Be sure to have a pen and paper with you so that you can take notes. How should I dress and behave when I come to Court? 1. Dress nicely and conservatively. 2. Be on time. 3. You should sit in the benches in the back of the courtroom until your case is announced. The courtroom deputy may ask “counsel” to come forward and check in. You should check in with the courtroom deputy at that time. If your hearing is the only one scheduled, you may sit at the plaintiffs’ or defendants’ table in the center of the courtroom. The courtroom deputy will tell you where to sit. 4. When the Judge enters the courtroom, you must stand and remain standing until the Judge sits down. 5. When you speak to the Judge, call him or her “Your Honor.” 6. A judge might ask you questions about your argument in a motion. If the Judge asks a question, always stop your argument and answer the Judge’s question completely. When you are finished answering the question, you can go back and finish the other points you wanted to make. Always answer the Judge’s questions completely and never interrupt the judge when he or she is speaking. 7. If the Judge asks you a question when you are seated at the table or away from the lectern, stand and walk up to the lectern before you answer the question. 32 DISCOVERY “Discovery” is a term that refers to the information that the parties will gather to support their case. Federal Rules of Civil Procedure 26 through 37 govern discovery. Parties often need to gather documents such as medical records, employment records, or business records. Information can be obtained in the form of written questions, written document requests, or oral questions. Discovery can begin only after the parties have met and conferred. Rule 26(d). Earlier discovery can take place if the parties agree or if the Court issues an order allowing earlier discovery. Each party in an action will seek some discovery. This means that if you file an action, you will need to obtain information from the party you are suing, as well as provide information to that party. For example, if you file a personal injury action, your medical condition is at issue and you will need to provide some of your own medical records to the opposing party. Methods of Discovery Available Interrogatories, requests for production, depositions, requests for admissions, and a mental or physical examination are the most common methods for obtaining discovery. You will need to read the federal rules carefully regarding each type of discovery request to make sure that you comply with their specific requirements. This Handbook will give you a quick overview of the methods of discovery and how they may be useful to your case. 1. Interrogatories (Rule 33) Interrogatories are written questions sent by one party to any other party to the lawsuit and must be answered in writing and under oath. Rule 33 of the Federal Rules of Civil Procedure covers interrogatories in detail. If you are serving interrogatories, you may not serve more than 25 interrogatories without the Court’s permission. 33 If you are answering interrogatories, you must answer any interrogatory with all nonprivileged information available to you without doing research. This means that if the answer is contained in your business records or personal files, you must look for the answer. You may object to an interrogatory seeking privileged information or that is overbroad, vague, or unduly burdensome. You must explain fully the reason for your objection. If you later learn that your answer is incomplete or incorrect, you must let the other side know and promptly supplement your original answer. The interrogatories must be answered within 30 days and must be signed in accordance with Rule 26(g)(1). If you need more time to answer, you can request more time from the opposing party. If the opposing party does not agree, you can request more time from the Court by filing a motion. 2. Requests for Production (Rule 34) In a request for production of documents, you can ask the opposing party for documents, including electronically stored information (like e-mails) which you need to make or defend your case. You may seek documents that you reasonably believe the other side has and contains information relevant to the lawsuit. If the person who has the documents you want is a party to the lawsuit, you must follow Rules 34(a) and (b). Under Rule 34(a), any party can serve another party: (1) a request for production of documents; (2) a request for production of tangible things; or (3) a request for inspection of property. Each request for document production should be numbered separately and signed in accordance with Rule 26(g)(1). There is no limit to the number of requests, as long as they are not unreasonable or unduly burdensome. 34 If you have been served with a request for production of documents, you must give a response within 30 days (unless you obtain an extension from the opposing party or the Court). If you object to a request, you must state the reason for the objection. Rules 34(c) and 45 cover obtaining documents from persons not party to the lawsuit. Under Rule 34(c), you can ask the Court to compel a person who is not a party to the lawsuit to produce documents and items or submit to an inspection. 3. Depositions (Rule 30) Depositions are question and answer sessions that takes place outside the hearing of the Court, but are recorded by a court reporter. The person being deposed is under oath (the “deponent”), and that person may be a party, non-party eye witness, or expert witness. The deponent answers all questions under oath, meaning that he or she swears that his or her answers are true. The party seeking to take a deposition should confer with opposing counsel and the deponent to choose a convenient time and place for the deposition. The party asking for the deposition must then prepare a notice of deposition and serve the notice on all parties.10F 11 You may ask questions of the deponent about any non-privileged matter that is relevant to the claims or defenses of any party. The party taking the deposition must pay the cost of the court reporter. After the deposition, the parties must obtain a copy of the transcript from the court reporter themselves. 4. Request for Admissions (Rule 36) In a “Request for Admissions,” one party can ask the other party to admit the truthfulness of facts related to the lawsuit. The Court will consider anything admitted in response to a request 11 Specific instructions for a notice of deposition is contained in Federal Rule of Civil Procedure 30(b). 35 for admission as proven. Requests for admission may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure, including service by mail. If you are responding to a request for admissions, you must admit or deny the request or explain in detail why you cannot truthfully admit or deny it. If you do not know the answer, then you must state that you do not have enough information to admit or deny the request, but you must first make a reasonable search for the information. Remember, any matter that is admitted is treated as a proven fact within the context of this particular lawsuit. 5. Mental or Physical Examinations (Rule 35) When the mental or physical condition of a party, or a person under the custody or legal control of a party, is at issue in a lawsuit, Rule 35 of the Federal Rules of Civil Procedure allows the Court to order that person to submit to a physical or mental examination. The examination must be done by a suitably licensed or certified examiner, and the party who requested the examination must pay the examiner. The examiner is not responsible for treating the person and any communications with the examiner are NOT confidential. Unlike other discovery procedures, physical or mental examinations can be obtained only by filing a motion with the Court or by agreement of the parties. Discovery Disputes Sometimes, the parties will disagree about the disclosures, discovery, or objections filed. The Federal Rules require the parties to meet and confer to try to resolve the dispute before filing a motion to compel with the Court. Under Rule 37(a)(2), a motion to compel a party to make disclosures or to respond to discovery must be filed in the Court where the lawsuit is pending. A motion to compel MUST include: 1. A certification that have tried in good faith to resolve the problem without help from the Court; AND 36 2. An explanation of the problem and what you want the Court to do; AND 3. If the problem involves discovery, the complete text of each disputed discovery request immediately followed by the complete text of the objections or disputed responses to that request; AND 4. An explanation of the facts AND law that make it appropriate for the Court to grant your motion. 37 ALTERNATIVE DISPUTE RESOLUTION What is Alternative Dispute Resolution? Alternative Dispute Resolution (ADR) can save time and money by helping parties work out their differences without formal litigation. ADR can lead to resolutions that are better tailored to the parties’ interests. Methods include mediation, arbitration, and settlement, among others. In many courts, the parties are required to participate in some form of ADR before trial and such requirements will generally be included in the Case Management Order. What Are the Major ADR Processes? 1. Settlement Conference In some jurisdictions, a settlement conference may be available to the parties. In a settlement conference, a judge other than the assigned judge (usually a magistrate judge), helps the parties negotiate a settlement of all or part of the dispute. Settlement conferences are generally best fit for pro se litigants because a judge who has experience working with unrepresented parties conducts the process. 2. Mediation In meditation, a neutral third party meets with the parties to help them negotiate a mutuallysatisfactory agreement resolving all or part of the dispute. The process is informal and confidential. Any decision to enter into a settlement agreement is voluntary, and the parties do not lose their right to trial if they do not reach an agreement. 3. Arbitration In arbitration, the parties submit their dispute to an arbitrator or a panel of arbitrators for review, hearing, and adjudication in a binding decision. Arbitration is similar to litigation because both parties present arguments and evidence, including witnesses, to a neutral decision-maker. 38 Arbitration is an abbreviated, efficient means of resolving disputes, the outcome of which contractually has the force of a mandatory, binding determination. 4. Early Neutral Evaluation In early neutral evaluation (ENE), a specially-trained lawyer who is an expert in the subject matter of the case gives the parties a non-binding assessment of the merits and may help with settlement discussions. The goals are to promote communication and provide a “reality check” about the claims and evidence, identify and clarity key issues in dispute, assist with discovery and information exchange and motion planning and help with settlement discussions if requested by the parties. 5. Limited Scope ADR Counsel (if available in your district) Most cases are referred by the Court to go to ADR. In some jurisdictions, if you do not have a lawyer, you may request that the Court appoint a lawyer to you for the limited purpose of representing you at mediation. Although the scope of this representation is limited, the lawyer can engage in settlement discussions with the other side, request additional discovery that would assist in the mediation, and meet with you to prepare for your mediation. Please refer to local rules for more information on ADR in this court. 39 MOTIONS FOR SUMMARY JUDGMENT (Rule 56) A motion for summary judgment asks the Court to decide a lawsuit without going to trial because there are no disputes about the key facts of the case. When the parties agree on the facts, or if one party does not have enough evidence to support his or her case, the Court can decide the issues based on the papers that are filed by the parties. When the plaintiff files a motion for summary judgment, the goal is to show that the undisputed facts prove that the defendant violated the law. When defendants file a motion for summary judgment, the goal is to show that the undisputed facts prove that they did not violate the law. The overwhelming majority of summary judgment motions are filed by defendants. Sometimes, a motion for summary judgment can address the whole lawsuit or individual claims. If the summary judgment motion addresses the whole lawsuit and the Court grants summary judgment, the lawsuit is over. If the Court denies a motion for summary judgment, it means that there is a dispute of material fact, and the case will go to trial unless the parties settle. A motion for summary judgment must include a statement of undisputed facts. Each fact must be supported by admissible evidence, such as deposition testimony, affidavits, or relevant documents. If you need specific discovery in order to provide more evidence to the Court showing why summary judgment should not be granted, you can file, on or before the deadline for opposing the motion, a request under Rule 56(d) of the Federal Rules of Civil Procedure for additional time to conduct discovery. Your request must be accompanied by an affidavit or declaration clearly setting out (1) the reasons why you do not already have the evidence you need to defeat summary judgment and (2) exactly what additional discovery you need and how it relates to the pending motion for summary judgment. 40 TRIAL If a case has not settled or been dismissed following a motion for summary judgment, it is going to trial. You have to make pre-trial disclosures to the other party before trial, including expert witnesses and reports and witness and exhibit lists. Read Rule 26(a)(2) & (a)(3) for more detailed information. The following information is not meant to be all inclusive, and you should always consult the Federal Rules of Civil Procedure and the Local Rules to make sure you understand what the Court requires of the parties preparing for trial. You should also become familiar with the Federal Rules of Evidence, which govern the admission of evidence at trial. 1. Final Pretrial Conference Prior to the actual trial, a pretrial conference is usually held between the judge and the parties (or their counsel) to determine (1) what exhibits and witnesses each side might use during the trial; (2) the approximate length of time that will be necessary for the trial and (3) the “ground rules” the Court will utilize before, during and after the trial. 2. Motions in Limine Parties may argue motions in limine at the pretrial conference. These motions request that the Judge not allow certain facts to be admitted into evidence, such as insurance policies, criminal records, or other matters which are either not relevant to the particular case or which might unfairly influence the jury. Either party may file a motion in limine. 3. The Role of the Judge and Jury If your case proceeds to trial, the parties will each get the opportunity to present their side of the case, and the Judge and jury (if the trial is a jury trial) are responsible for entering a verdict and judgment based on the evidence and arguments presented. It is the Judge’s duty to see that only proper evidence and arguments are presented. In a jury trial, the Judge also instructs the jury, 41 which will be called upon at the conclusion of the jury trial to make decisions regarding factual matters in dispute. A judgment will then be entered based on the verdict reached by the jury If the parties have not requested a trial by jury, the judge becomes the trier of both law and fact. At the end of the trial, the Judge enters “Findings of Fact” and “Conclusions of Law,” sometimes in writing, based on the evidence and arguments presented. A judgment is then entered based on those findings of fact and conclusions of law. A jury trial begins with the Judge choosing prospective jurors to be called for voir dire (examination). The Court will determine the number of jurors. Peremptory Challenges: Each party will be given a number of peremptory challenges which enable the party to reject (in most cases) prospective jurors without cause. This decision is based on subjective considerations of the party when he or she feels a prospective juror would be detrimental to his or her case. Challenges for Cause: The plaintiff or defendant may also challenge a prospective juror “for cause” when the prospective juror lacks a qualification required by law, is not impartial, is related to either of the parties, or will not accept the law as given to him or her by the Court. 4. Opening Statements After the jury is sworn in or “empaneled,” each side may present an opening statement. The plaintiff has the burden of proving that he or she was wronged and suffered damages from that wrong and that the defendant caused those damages. The plaintiff is allowed to present the opening statement first. This may be followed by a statement by the defendant. The Court will determine the time to be allotted for opening and closing arguments. 5. Testimony of Witnesses After opening statements are given, testimony of witnesses and documents are presented 42 to the jury or the Court. The plaintiff presents his or her case first. After the initial examination of a witness (also known as “direct examination”), cross-examination is conducted by the other side. After a party has cross-examined a witness, the opposing side has the opportunity to conduct “redirect” examination in order to re-question the witness on the points covered by the crossexamination. If a witness testifies as to a fact, and a statement or document in the case file contradicts that testimony, the document can then be used to question the witness on the accuracy of the witness’ statements. If the evidence shows that the testimony of the witness is false, the witness is considered “impeached” by the cross-examination. 6. Motions During the Course of the Trial Motion for Judgment as a Matter of Law: This motion is usually made by the defendant at the close of evidence presented by the plaintiff. It is based on the premise that the plaintiff has failed to prove his or her case. If this motion is granted, the trial is concluded in the movant’s favor. If the Court denies the motion, the trial continues with presentation of the defendant’s side. Motion for Mistrial: Either party can move for a mistrial if, for example, during the course of the trial certain matters which are not admissible (such as those determined to be inadmissible in a prior motion in limine) are presented by any witness, either purposely or unintentionally, in the presence of the jury. If the Judge grants the motion for mistrial, the trial is immediately ended and the jury is dismissed. Objections: During the examination of a witness, one side may “object” to the questioning or testimony of a witness, or presentation of evidence, if the litigant believes that the testimony or evidence about to be given should be excluded. If the objection is sustained by the Judge, that particular testimony or evidence is excluded. If the objection is overruled by the Judge, the 43 testimony or evidence may be given despite the objection. Check the Federal Rules of Evidence to make sure you know the proper grounds for making an objection. 7. Closing Arguments Closing arguments to the jury set out the facts that each side has presented and the reasons why each party believes the jury should find in favor of him or her. Time limits are sometimes set by the Court for closing arguments, and each side must adhere to the specified time. 8. Charge to the Jury After each side presents testimony and evidence, the Judge delivers the “charge” to the jury, usually in the form of written instructions. Each side may present proposed written instructions to the Judge for consideration. After the Judge has considered all proposed instructions, the jury is given appropriate instructions which set forth the jury’s responsibility to decide the facts in light of the applicable rules of law. The jury then returns a verdict in favor of either the plaintiff or the defendant and assesses damages to be awarded, if any. 9. Judgment Following the entry of the jury’s verdict, judgment in favor of the prevailing party is entered by the Clerk. If costs are awarded to the prevailing party, it is necessary to prepare a “bill of costs” for the approval of the Court. A bill of costs sets forth those costs that were incurred in the suit. A prevailing party may serve a bill of costs within thirty (30) days after entry of a judgment. If attorney’s fees are awarded, an application for attorney’s fees must be made by motion filed no later than fourteen (14) days after entry of judgment. See Fed. R. Civ. P. 54(d)(2). APPEAL If you are unhappy with the ultimate disposition of your action, you may appeal that determination to the United States Court of Appeals. Grounds for an appeal usually consist of 44 allegations that the Judge made an error either in interpreting or applying the law or in a procedural ruling during the course of the case. Any error must have been sufficiently significant that the Judge or jury reached an incorrect result because of the error. In general, only final orders or judgments of the district court may be appealed. 28 U.S.C. § 1291. This kind of appeal is called an appeal as of right. Most orders issued before judgment (“interlocutory orders”) cannot be appealed until a final judgment is entered. Some of the few interlocutory orders that can be appealed are listed under 28 U.S.C. § 1292. A final order or judgment is the document which announces the final decision with respect to your case (that is, whether you won or lost) and closes the case with the district court. In order to appeal, a final order or judgment should be entered on the docket of your case. Timing. An appeal must be filed within 30 DAYS AFTER ENTRY OF JUDGMENT (or order being appealed). Exceptions to this rule are few. If you plan to appeal, it is very important to calendar this deadline and meet it. The process for starting an appeal is the filing of a notice of appeal in the District Court together with a filing fee. The fee may be waived under certain conditions. See Rule 24 of the Federal Rule of Appellate Procedure. The Clerk’s Office then transmits the appeal and the case file to the Court of Appeals, which opens a new file with a new case number; all proceedings on appeal are then handled by the judges and the clerk of the Court of Appeals. GLOSSARY OF COMMON LEGAL TERMS11F 12 ACTION: Another term for lawsuit or case. ADMISSIBLE EVIDENCE: Evidence that can properly be introduced at trial for the judge or 12 This Glossary was borrowed from the United States District Court for the Northern District of California’s handbook titled “Representing Yourself in Federal Court: A Handbook for Pro Se Litigants,” drafted by Susan Y. Soong, Clerk of Court, 2017 Edition. 45 jury to consider in reaching a decision; the Federal Rules of Evidence govern the admissibility of evidence in federal court. ADR (ALTERNATIVE DISPUTE RESOLUTION): A Court-sponsored program offering methods by which a complaint can be resolved outside of traditional court proceedings. ADJOURN, ADJOURNMENT: To bring a proceeding to an end, such as a court calendar or trial. AFFIDAVIT: A statement of fact written by a witness, which the witness affirms to be true before a notary public. AFFIRMATIVE DEFENSES: Allegations included in the answer that, under legal rules, defeat all or a portion of the plaintiff’s claim. ALLEGATION: An assertion of fact in a complaint or other pleading. AMEND (A DOCUMENT): To alter or change a document that has been filed with the Court, such as a complaint or answer, by filing and serving a revised version of that document. Certain documents cannot be amended without prior approval of the Court. AMENDED PLEADING (COMPLAINT OR ANSWER): A revised version of the original complaint or answer that has been filed with the Court. AMOUNT IN CONTROVERSY: The dollar value of how much the plaintiff is asking for in the complaint. ANSWER: The written response to a complaint. An “answer on the merits” challenges the complaint’s factual accuracy. APPEAL: To seek formal review of a district court judgment by the Court of Appeals. APPLICATION TO PROCEED IN FORMA PAUPERIS (IFP): A form filed by the plaintiff asking permission to file the complaint without paying the entire filing fee at the start of the case, but instead to pay in installments. The plaintiff must establish an inability to pay the whole fee. ARBITRATION: A form of alternative dispute resolution, overseen by a judge or arbitrator, in which the parties argue their positions in a trial-like setting that lacks some of the formalities of a full trial. ARBITRATOR: The neutral third party who presides at arbitration, usually an attorney. AWARD: The sum of money or other relief to which an arbitrator rules the winning party in an arbitration is entitled. BENCH TRIAL: A trial in which the judge, rather than the jury, determines the law, the facts, and the verdict of the lawsuit. A bench trial is also known as a “court trial.” 46 BREACH: Failure to perform a legal obligation. BRIEF: A document filed with the Court arguing for or against a motion. BURDEN OF PROOF: Under legal rules, one party or the other bears responsibility for proving or disproving one or more elements of a claim. What must be proven or disproven is the burden of proof. CAPTION: A formatted heading on the first page of every document filed with the Court, listing the parties, the name of the case, and other identifying information. The specific information that must be included in the caption is explained in Rule 10(a) of the Federal Rules of Civil Procedure. CAPTION PAGE: The cover page of the document containing the caption. It is always the first page of any document a party to a lawsuit files with the Court. CASE: Another term for lawsuit or action. CASE FILE: A file in which the original of every document manually filed with the Court is kept. E-filed documents are generally not placed in the case file. CASE MANAGEMENT CONFERENCE (CMC): A court proceeding at which the judge, with the help of the parties, sets a schedule for various events in the case. CASE MANAGEMENT ORDER: The Court’s written order scheduling certain events in the case. CASE MANAGEMENT STATEMENT: A statement filed by the parties providing information to be discussed at the case management conference. CERTIFICATE OF SERVICE: A document showing that a copy of a particular document — for example, notice of motion — has been mailed or otherwise provided to (in other words, “served on”) all of the other parties in the lawsuit. CHALLENGE FOR CAUSE: A request by a party that the Court excuse a juror whom they believe to be too biased to be fair and impartial, or unable perform his or her duties as a juror for other reasons. CHAMBERS: The private offices of an individual judge and the judge’s “chambers staff”— usually an administrative assistant and law clerks. CHAMBERS COPY: A paper copy of a case document delivered to the Court for the judge’s use. CITATION: A reference to a law, rule, or case. 47 CLAIM: A statement made in a complaint, in which the plaintiff(s) argue that the defendant(s) violated the law in a specific way; sometimes called a count. CLOSING ARGUMENTS: An oral statement by each party summarizing the evidence and arguing how the jury (or, in a bench trial, the judge) should decide the case. COMPLAINT: A legal document in which the plaintiff tells the Court and the defendant how and why the defendant violated the law in a way that has caused harm to the plaintiff. COMPULSORY COUNTERCLAIM: A claim by the defendant against the plaintiff that is based on the same events or transactions as the plaintiff’s claim against the defendant. CONTEMPT OF COURT: Acts found by the Court to be committed in willful violation of the Court’s authority or dignity, or to interfere with or obstruct its administration of justice. CONTINUANCE: An extension of time ordered by the Court. COUNSEL: Attorney(s); lawyer(s). COUNT: A term sometimes used instead of claim. COUNTERCLAIM: A defendant’s complaint against the plaintiff, filed in the plaintiff’s case. COURT OF APPEALS: A court that hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. COURT REPORTER: A person specially trained and licensed to record testimony in the courtroom or, in the case of depositions, another location. COURTROOM DEPUTY: A Court employee who assists the judge in the courtroom and usually sits at a desk in front of the judge. COURT TRIAL: A trial (also known as a “bench trial”) in which the judge, rather than the jury, determines the law, the facts, and the verdict of the lawsuit. CROSSCLAIM: A new claim bringing a new party into the case or asserting a claim against a co-party (by a plaintiff against a co-plaintiff or by a defendant against a co-defendant). CROSS-EXAMINATION: The opposing party’s questioning of a witness following direct examination, generally limited to the topics covered during the direct examination. DAMAGES: The money that can be recovered in the courts by the plaintiff for the plaintiff’s loss or injury due to the defendant’s violation of the law. DELIBERATE: The process in which the jury discusses the case in private and makes a decision about the verdict. See also jury deliberations. 48 DE NOVO REVIEW: A Court’s complete review and re-determination the matter before it from the beginning; for example, a referring judge’s de novo review of a magistrate judge’s report and recommendation includes considering the same evidence reviewed by the magistrate judge and reaching an independent conclusion. DECLARATION: A written statement signed under penalty of perjury by a person who has personal knowledge that what he or she states is true; declarations may contain only facts and may not contain law or argument. The person who signs a declaration is called a declarant. DEFAULT: A defendant’s failure to file an answer or other response within the required amount of time, after being properly served with the complaint. DEFAULT JUDGMENT: A judgment entered against a defendant who fails to respond to the complaint. DEFENDANT: The person, company or government agency against whom the plaintiff makes claims in the complaint. DEFENDANT’S TABLE: The table where the defendant sits, usually the one further from the jury box. DEFENSES: The reasons given by the defendant why the plaintiff’s claims should be dismissed. DEPONENT: The person who answers the questions in a deposition; a deponent can be any person who may have information about the lawsuit, including one of the other parties to the lawsuit. DEPOSITION: A question-and-answer session, before trial and outside the courtroom, in which one party to the lawsuit asks another person, who is under oath, questions about the events and issues in the lawsuit. The process of taking a deposition is called deposing. DEPOSITION NOTICE: A notice served on the deponent specifying the time and place of the deposition. DEPOSITION SUBPOENA: See subpoena. DIRECT EXAMINATION: The process during a trial in which a party calls witnesses to the witness stand and asks them questions. DISCLOSURES: Information that each party must automatically give the other parties in a lawsuit. DISCOVERY: The formal process by which a party to a lawsuit asks other people to provide information about the events and issues in the case. DISCOVERY PLAN: The joint proposed discovery plan required by Rule 26(a) of the Federal 49 Rules of Civil Procedure, which must include the parties’ views about, and proposals for, how discovery should proceed in the lawsuit. DISTRICT JUDGE: A federal judge who is nominated by the President of the United States and confirmed by the United States Senate to a lifetime appointment. DIVERSITY JURISDICTION: A basis for federal court jurisdiction in lawsuits in which none of the plaintiffs live in the same state as any of the defendants and the amount in controversy exceeds $75,000. DOCKET: The computer file for each case, maintained by the Court, listing the title of every document filed, the date of filing and docketing of each document and other information. DOCKET CLERK: Also known as “case systems administrator,” a court staff member who enters documents and case information into the court docket. ELECTRONIC CASE FILING (ECF): Also known as “e-filing,” the process of submitting documents to the Court for filing and serving them on other parties electronically through the Internet. The United States Courts use an e-filing system called “Electronic Case Filing” or “ECF.” ECF HELPDESK: A court staff member with ECF expertise who helps ECF users with technical problems (by phone or email). ELEMENT (OF A CLAIM OR DEFENSE): An essential component of a legal claim or defense. ENTRY OF DEFAULT: A formal action taken by the Clerk of Court in response to a plaintiff’s request when a defendant has not responded to a properly served complaint; the Clerk must enter default against the defendant before the plaintiff may file a motion for default judgment. EVIDENCE: Testimony, documents, recordings, photographs and physical objects that tend to establish the truth of important facts in a case. EX PARTE MOTION: A motion that is filed without notice to the opposing party. EX PARTE: Without notice to the other parties and without their being present (as in a written or telephone communication with the Court). EXHIBITS: Documents or other materials that are presented as evidence at trial or as attachments to motions or declarations. EXPERT DISCLOSURES: The disclosures required by Rule 26(a)(2) to the other parties of the identity of, and additional information about, any expert witnesses who will testify at trial. EXPERT REPORT: A written report signed by an expert witness that must accompany the 50 expert disclosures for any expert witness; Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure lists what must be included in an expert report. EXPERT WITNESS: A person who has scientific, technical, or other specialized knowledge that can help the Court or the jury understand the evidence. FEDERAL QUESTION JURISDICTION: Federal courts are authorized to hear lawsuits in which at least one of the plaintiff’s claims arises under the Constitution, laws, or treaties of the United States. FEDERAL RULES OF CIVIL PROCEDURE: The procedural rules that apply to every federal district court in the United States. FEDERAL RULES OF EVIDENCE: The rules for submitting, considering and admitting evidence in the federal courts. FILING: The process by which documents are submitted to the Court and entered into the case docket. FILING FEE: The amount of money the Court charges the plaintiff to file a new lawsuit. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A statement issued by a judge explaining what facts he or she has found to be true and the legal consequences to be included in the judgment; it concludes a bench trial once all evidence has been submitted and all arguments have been presented. FRAUD: The act of making a false representation of a past or present fact on which another person relies, resulting in injury (usually financial). GOOD FAITH: Having honesty of intention; for example, negotiating in good faith would be to come to the table with an open mind and a sincere desire to reach an agreement. GROUNDS: The reason or reasons for requesting action by the Court. HEARING: A formal proceeding before the judge for the purpose of resolving one or more issues. HEARSAY: A statement offered to prove the truth of the matter asserted in the statement. IMPEACHMENT: To call into question a witness’s truthfulness or credibility. IN FORMA PAUPERIS (IFP): See application to proceed in forma pauperis. IN PROPRIA PERSONA: Often shortened to “pro se;”- representing oneself; Latin for “in his or her own person.” 51 INITIAL DISCLOSURES: The disclosures that the parties are required to serve within 14 days of their initial case management conference. INTERLOCUTORY ORDER: Court orders issued before judgment. INTERROGATORIES: Written questions served on another party in the lawsuit, which must be answered (or objected to) in writing and under oath. I ISSUE SUMMONS: What the Clerk of Court must do before a summons is valid for service on a defendant. JOINT CASE MANAGEMENT CONFERENCE (CMC) STATEMENT: A court-approved form the parties are asked to complete jointly and file before the initial case management conference. JUDGMENT: A final document issued by the Court stating which party wins on each claim. Unless there are post-judgment motions, the entry of judgment closes the case. JURISDICTION: See diversity jurisdiction and subject matter jurisdiction. JURY BOX: The rows of seats, usually located against a side wall in a courtroom and separated from the well of the courtroom by a divider, where the jury sits during a trial. JURY DELIBERATIONS: The process in which the jury, after having heard all the evidence, closing arguments from the parties, and instructions from the judge, meets in private to decide the case. JURY INSTRUCTIONS: The judge’s directions to the jury about its duties, the law that applies to the lawsuit, and how it should evaluate the evidence. JURY SELECTION: The process by which the individual members of the jury are chosen. JURY TRIAL: A trial in which a jury weighs the evidence and determines what happened; the Court instructs the jury on the law, and the jury applies the law to the facts and determines who wins the lawsuit. LAW LIBRARY: A special library containing only legal materials, usually staffed by a specially trained librarian. LECTERN: The stand for holding papers in front of the bench in the courtroom where an attorney or pro se party making arguments on a motion stands and speaks to the judge. LITIGANTS: The parties to a lawsuit. LOCAL RULES: Specific federal court rules that set forth additional requirements to the Federal Rules of Civil Procedure that only apply to the specific District Court deciding your 52 case. MAGISTRATE JUDGE: A judicial officer who is appointed by the Court for an 8-year, renewable term and has some, but not all, of the powers of a district judge. A magistrate judge may handle civil cases from start to finish if all parties consent. In non-consent cases, a magistrate judge may hear motions and other pretrial matters assigned by a district judge. MANUAL FILING: A filing of a paper document at the Clerk’s Office instead of by electronic filing/e-fling. MATERIAL FACT: A fact that must be proven to establish and element of a claim or defense in the lawsuit. MEDIATION: An ADR process in which a trained mediator helps the parties talk through the issues in the case to seek a negotiated resolution of all or part of the dispute. MEET AND CONFER: The parties meeting and working together to resolve specific issues under Court rules or a Court order. MENTAL EXAMINATION: See physical or mental examination. MOTION: A formal application to the Court asking for a specific ruling or order (such as dismissal of the plaintiff’s lawsuit). MOTION FOR A MORE DEFINITE STATEMENT: Defendant argues that the complaint is so vague, ambiguous, or confusing that he or she cannot respond to it and asks for additional details. MOTION FOR A NEW TRIAL: Argues that another trial should be held because of a deficiency in the current trial. MOTION FOR A PROTECTIVE ORDER: Asks the Court to relieve a party of the obligation to respond to a discovery request or gr
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