Criminal and Civil Litigation - Essay Example

?CRIMINAL AND CIVIL LITIGATION CRIMINAL AND CIVIL LITIGATION Civil Litigation This is a process of resolving public and private legal disputes on civil matters either through negotiation or through courts (The Law Society, 2012). Civil litigation usually involves a dispute between two or more parties seeking money damages or other specific performance instead of criminal sanctions. Civil Litigation covers a broad range of disputes including Environmental law, Product Liability, Intellectual property, Employment and Labor, Anti-trust, worker’s compensation and Education Law (Anderson, 1994). The scenario of Foster and Powell falls under the Anti-Trust laws. The Civil Litigation Process has the following stages a) Stages of Civil Litigation i) Issuing the Statement of Claim; the litigation process always starts with issuing a statement setting out facts and legal grounds supporting the Plaintiff’s claim against the defendant (The Law Society, 2012). ii) Replying to the statement of defense; the moment the Defense has been submitted to the Plaintiff, the Plaintiff has a chance to reply the statement of defense. iii) Affidavit of Documents; this process is always after all parties have received their claims; for instance at this stage the parties will prepare, swear and serve their Affidavit of Document (Heydary Hamilton PC, 2011). This is a sworn document containing all the documents that each party has in possession and are relevant for the litigation process between the parties. In the case of Foster where we have a disputed contract, the documents required are a copy of the contract, and letters between the parties must and should be included in the Affidavit of Documents (The Law Society, 2012). iv) Mandatory Mediation; at this stage, parties to the litigation together with their lawyers must attend a Mandatory Mediation meeting in front of a natural mediator who attempts to clear the differences between the parties (Gerlis and Loughlin, 2001). The mediator in this case is either an experienced Lawyer of a retired Judge. The mediator cannot force the parties to resolve their differences but it is up to the parties and their lawyers (Heydary Hamilton PC, 2011). v) Examination for Discovery; in case the parties are unable to clear their differences at the mediation meeting, the lawyers of the Plaintiff get an opportunity to ask defendants questions under oath and vice-versa (Heydary Hamilton PC, 2011). vi) Undertakings and Motions before trial; during the examination for discovery stage, some information especially of the party answering questions may not be readily available. Given this situation, parties can provide answers and copies of the missing documents following the discovery (Heydary Hamilton PC, 2011). On agreement to do this, the parties are given an undertaking. However, if a party refuses to comply with the undertaking he is likely to face punishment of a Judge or Master. vii) Trial Scheduling Court; after all refusals and undertakings have been dealt with, the litigants will attend in front of a Judge to get a trial date. With regard to the simplicity or complexity and length of trial, will determine how fast the litigants can have their matters resolved (Heydary Hamilton PC, 2011). viii) Settlement Conference; this occurs before trial and is always before the Judge. Normally, the settlement conference takes place after all parties have agreed to go to trial and hence they will be possessing documents that they will be relying on together with reports from their respective experts (Heydary Hamilton PC, 2011). ix) Trial; in many cases, litigation cases do not reach the trial stage as it is expensive and hence majority of litigation disputes are resolved early enough. However, if the disputes are not resolved early, then the trial is inevitable (Heydary Hamilton PC, 2011). The trial stage is the last step in litigation. b) i) Application made in case of the missing agreement The dispute between Foster and Powell, if Foster believes that his missing part of the contract is in possession of Powell, he should apply for Affidavit of Documents. As earlier explained, an Affidavit of Documents is a sworn document containing all documents that each party has in possession regarding the disputed contract. These documents include copy of contract, and letters between the parties (Clermont, 1992). Accordingly, like in any other litigation process, Foster will have to apply for Affidavit of Documents to make Powell produce all documents that he has regarding their partnership contract. Consequently, during this process Lawyers of both sides will have to attend at their client’s premises and review all documents in order to make sure that Affidavit of Documents is Complete and accurate (Heydary Hamilton PC, 2011). This will cause the mandatory mediation where the litigants must attend together with their lawyers. The mediator in this case can either be an experienced lawyer or a retired Judge who is neutral (Grainger, et, al., 2000). ii) Type of Order to seek With regard to (i) above, if Powell will refuse to surrender the Foster’s part of the contract, then Foster will have to apply for the Examination for Discovery order. Under this order, Foster’s Lawyer will be able to ask Powell questions under oath; consequently Powell’s lawyers will have a chance to ask Foster questions under oath (Zuckerman, 1999). This process will help in extracting the truth of the matter. In the same line of argument, If Powell has the other part of the disputed contract, then; the truth will be known. Further, if Foster is telling lies it will also be discovered. Accordingly, during the examination and discovery, the litigants will provide answers and copies of the disputed contract. When Powell complies to produce the documents, then; he is giving an undertaking. When he does not comply with the undertaking he will likely face stiff punishment from the Judge or Master (Heydary Hamilton PC, 2011). For instance after discovery the Judge or Master will force the party to produce the missing documents or answer the questions being asked. c) i) Steps to take to end proceedings early To end the proceedings early Foster will file for the Settlement Conference which will be held before a Judge. During the settlement conference the presiding Judge will encourage the parties to speak freely in order to solve the issues of the claims, expedite the disposition of the claims, provide relevant facts rather full disclosure of evidence, and encourage settlement of the settlement of the claims (Louisell, et, al., 2008). At the settlement conference all parties will file all materials and documents they intend to use, if any party that faults is prone to hefty penalties. ii) Test the court will apply to grant the application There are various orders that can be granted at the settlement conference. In order for the matter to be settled, Foster will have to file for a final order under the consent of Powell; this will help dispose of the matter (Gray, 1994). Accordingly, the opinion of the Judge in this matter should be given a serious consideration in either resolving or proceeding with litigation. The settlement conference will only culminate into a positive resolution only if all parties participate actively and honestly. Failure to reach an agreement, the litigation will proceed to trial (Heydary Hamilton PC, 2011). d) Events discussed at the pre-trial review During the pretrial review, the parties usually attend the Settlement conference in front of a Judge; this occurs only if all parties have agreed to go to trial. The lawyers of both parties send the Judge summary of their arguments together with documents relevant for the trial. During the settlement conference the Judge will only listen to the litigants’ lawyers and try to make amends between the parties (Gerlis and Loughlin, 2001). Consequently, in some cases the Judge gives his opinion on how he or she would give the verdict if he were the presiding Judge at the trial. However, the Judge that presides over Settlement conference is not the one who presides over the trial. It is paramount to ensure that the litigants speak freely and openly (Heydary Hamilton PC, 2011). e) Trial bundle These are all documents that are populated together by the claimant for the purposes of a trial. In this regard, any document that is likely to or will be referred to at a trial should and must be placed into a paginated trial bundle that will be used by witnesses and other relevant parties (Law Society Gazette, 2012). In any civil case, a well-prepared trial bundle which is available in good time gives any party an upper hand in negotiations and increases the chances of making a favorable impression on the court (Gray, 1994). Consequently, trial bundle is also taken as part of the presentation of the case and litigants must comprehensively prepare well for their cases to be favorably considered. The purposes of a trial bundle are: To present before the court all the pertinent written materials to which reference will be made during at the trial and other subsequent hearing. For instance, the trial bundle has the case summary, schedules of issues to be decided by the Judge, a chronology and a summary of the orders sought (Law Society Gazette, 2012). To give the advocate the best prospect of preparing effectively the presentation of the case. For instance, the advocate will quickly see all documents that will be relied upon during the trial and prepare the basis of his arguments (Gerlis and Loughlin, 2001). To assist the Judge with pre-trial reading; the judge will familiarize himself with the case and the time limit within which the case will tried. This will allow the Judge to prepare well ensuring that dates of the trial and the case number are clearly marked. The trial bundle will also enable the hearing to be undertaken smoothly and expeditiously (Law Society Gazette, 2012). Bibliography Anderson, P.D. 1994. Federal Discovery Procedure under New Rules. Concord, N.H.: New Hampshire Continuing Legal Education. Clermont, K. M. 1992. Federal Rules of Civil Procedure 1992 and Selected Other Procedural Provisions. Westbury, N.Y.: Foundation Press. Gerlis, S. M., and Loughlin, P., 2001, Civil Procedure Great Britain. Routledge Taylor Francis Group. Grainger, I., Fealy, M., and Spencer, M. 2000, Civil Procedure Rules In Action. Routledge Taylor Francis Group. P. 493 Gray, R.E. 1994, Summary of the Civil Justice Expense and Delay Reduction Plan for the United States District Court for the District of New Hampshire. Concord, N.H.: New Hampshire Continuing Legal Education. Heydary Hamilton PC. 2011, The Civil Litigation Process - An Overview. Retrieved on 10/08/2012; From; http://www.heydary.com/publications/ontario-civil-litigation-process.html Law Society Gazette. 2012, Trial bundles: why they are important and how to get them right. Retrieved on 10/08/2012, From; http://www.lawgazette.co.uk/in-practice/benchmarks/trial bundles-why-it-important-get-it-right Louisell, D. W., Hazard, G.C., Jr., and Tait, C.C., 2008, Pleading and Procedure: State and Federal. 6th ed. Westbury, N.Y.: Foundation Press. The Law Society. 2012, Civil Litigation. Retrieved on 10/08/2012, From; http://www.lawsociety.org.uk/areasoflaw/view=areasoflawdetails.law?AREAOFLAW=Civil%20litigation&AREAOFLAWID=12 Zuckerman, A. A.S., ed. 1999. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. New York: Oxford University Press. Read More