Notice And Opportunity To Be Heard

A. Generally

A court that has proper jurisdiction over a case may only proceed when the defendant has proper notice of the proceedings against him. Proper notice usually entails service of “process” consisting of a summons to appear and a copy of the complaint. The defendant need not necessarily receive actual notice of the suit but the procedures followed must be “reasonably likely” to provide notice. The defendant must have adequate time to prepare his defense.

B. Methods of Service

1. In Hand Service
Defendant is physically handed a summons.

2. Attachment
Defendant receives notice by the attachment of his tangible property. Continue reading “Notice And Opportunity To Be Heard”


After the pleadings, parties then use various pretrial procedures in order to unearth knowledge in the other party’s possession, or in the possession of witnesses. Discovery, however, is not designed to allow a party to discover their opponent’s legal strategy, and there are several safeguards and sanctions available to courts and parties to ensure proper discovery. Continue reading “Discovery”


A. Jury Trials

Trial by jury is a right in certain actions (criminal trial, most federal court suits).

Jurors are usually selected by the judge.

Peremptory challenges (challenge for no reason) to jury selection are allowed.
Continue reading “Trial”


A. Filing the Complaint

The plaintiff must also notify the court of the impending case. This is done by filing a complaint.

Benefits of Being a Plaintiff As plaintiff, a party has great leeway in framing the structure of the case:

a. The plaintiff gets to choose (at least initially) whether federal or state courts will be used.

b. The plaintiff chooses (also initially) the state or district in which the suit is brought.

c. The plaintiff initially defines the issues involved, including what parties to join as defendants, what relief is sought (injunctive, monetary or both), and how much.

Continue reading “Pleadings”

Dismissal Of Actions (FRCP 41)

A. Timeliness

The time period in which an appeal must be brought begins to run once judgment is entered.

B. Standing to Appeal

Only a party injured (or aggrieved) by the judgment of the lower court has standing to appeal.

It is possible for both parties to be injured by a single judgment. Simply because one party is injured less does not mean they cannot appeal.
Continue reading “Dismissal Of Actions (FRCP 41)”

Default Judgments (FRCP 55)

A. Reviewable Issues

Generally, appellate courts only review issues of law, not factual findings.

B. Jury Trials

An appellate court must uphold a verdict supported by substantial evidence.

An appellate court cannot weigh evidence or pass on witness credibility.

An appellate court cannot disturb factual findings.

Continue reading “Default Judgments (FRCP 55)”


A. Generally

Every state has its high court, generally known as the State Supreme Court, although each state will have its own title. The federal court is of course led by the United States Supreme Court. Intermediate appellate courts generally exist to relieve the burdens of the high courts, but there are exceptions to every rule.
Continue reading “HIGH COURTS”

Summary Judgment (FRCP 56)

A. Generally

For the most part, only final judgments are appealable.

A final judgment is reached when, on the merits, litigation ends, leaving only the execution of judgment to be completed.

Substance, not form, determines if a judgment is final.

B. Interlocutory Appeals Exception

Interlocutory appeals are allowed in cases involving:

1. Collateral Orders
A collateral order is one which:

a. Raises serious legal questions;

b. Involves a danger of irreparable harm; and

c. Deals with an issue unrelated to the basic substantive claims asserted.

Continue reading “Summary Judgment (FRCP 56)”


A. Preclusive Effect

Class actions have the same preclusive effect in all class members as any other suit may have. (See Chapter 11.) A judgment in a class action is binding on all members of the class unless there is an opportunity to opt out of the class and the class member takes advantage of that opportunity.
Continue reading “Judgements”

Named Representative

A. Policy

After certifying the class, the court will seek out an individual who will represent that class. Every class of litigants is represented by what is known as a named plaintiff. This is generally the individual who initially files the class action.

1. Satisfy Requirements
Named representatives must satisfy the four requirements pursuant to FRCP 23.
Continue reading “Named Representative”


A. Policy

It is not normally possible to individually notify all the class members because they are too numerous, or because not all the members can be positively identified. FRCP 23(c)(2) and 23(c)(3) require different notice depending on the type of class action certified.
Continue reading “Notice”


A. Permissive Joinder (FRCP 20)

Outside parties to an action may consent to be joined by leave of the court. The joined parties must have claims that are transactionally related to the original action.

B. Necessary Parties (FRCP 19(a))

1. Generally
Necessary parties to an action must be joined if possible, but their nonjoinder will not result in dismissal. A court will deem a party to be necessary if:

a. The party’s absence will preclude complete relief to present parties;

b. The party’s absence will preclude complete relief to that party in a subsequent suit; or

c. The party’s absence may subject a present party to multiple liabilities.

Continue reading “Amendments”


A. Defined

Class actions are lawsuits brought (or defended) by several representative members on behalf of all group members, pursuant to FRCP 23.
Continue reading “General”

The Reply

A. Generally (FRCP 18)

A party may join several causes of action as long as they arise out of the same transaction or occurrence, or series of transactions or occurrences. This transactional test applies whether the second claim is brought by a plaintiff against a defendant, by a defendant against a plaintiff (counterclaim), or by one party against a co-party (cross-claim).

B. Counterclaims (FRCP 13)

Defendant asserts a claim against a plaintiff. If the defendant’s claim is not transactionally related to the claim asserted by the plaintiff, the judge has the discretion not to unduly complicate the case by refusing the joinder.
Continue reading “The Reply”