Posts categorized as "civil procedure"

What does it mean if a plaintiff has "standing" or "lacks standing" to challenge a law's Constitutionality?

Standing means that a person has a legal capacity to sue.  

Before a person can sue to challenge a law as unconstitutional that person must meet certain requirements.  He must have suffered an injury, or be in danger of suffering an injury as a result of the law.  Also, the Court must be able to provide some sort of remedy or help for the plaintiff if the Court finds in favor of the plaintiff.

As a practical matter this generally means that a person cannot claim that a law is unconstitutional on behalf of another person.  Only a person who has actually been injured as a result of the allegedly unconstitutional law or government action has the right to sue.  There are some exceptions to this rule which I'll discuss in a future post.  If you take a US bar examination you might find that at least one of the questions on Constitutional law will focus on standing.  

For now, here is a short video:  





I heard cases in the US are public. What if there is confidential information?

This is a good point and a good question.  Yes, as a general rule, both civil and criminal cases in the United States are public.  Now that most court documents are filed electronically you can access these documents online.  Federal court documents are available through PACER ( and many state courts make documents available online, too.

But obviously some documents shouldn't be shared.  For example, parties in a business dispute might not want to disclose trade secrets.  Perhaps in a criminal case there is information that if shared publicly could put someone in danger.  If a judge agrees, certain information will be redacted and not shared with the public.

When a litigation involves confidential information one or both parties will ask the Court for a "protective order."  In a motion for a protective order a party asks the judge to issue an order that will shield confidential information from being shared with other parties and/or the public.  

For example, let's say a document contains a business secret.  The company could ask the judge for a protective order so the document does not have to be disclosed.  Alternatively, the company could ask for a protective order so that the document will be "lawyer's eyes only" - - meaning lawyers may review the documents but it cannot be disclosed to other parties and the public.  Judges will not automatically grant a motion for a protective order.  The party must provide sufficient grounds to show why it needs the protective order.



What is a motion to compel?

A motion to compel is when a party asks the Court to force another party (or sometimes a third party) to do something.  

You will often see a motion to compel during discovery.  Let's say a lawyer asks a witness to answer a question during a deposition but the witness refuses to answer that question.  Or let's say a party requests a category of documents from its adversary but the adversary declines to provide some documents.  At that point the party seeking to force the witness to answer the question or demanding the documents will file a motion to compel.  If the judge grants the motion to compel the witness will have to answer the question and the documents will need to be produced.

The federal rules of civil procedure and the individual rules of many judges in the United States encourage parties to resolve discovery disputes without resorting to motion practice.  These rules generally require the parties to have a conference, with or without the judge, to resolve the dispute before filing a motion.  


What is spoliation?

Spoliation is when a party destroys or alters evidence that he was obligated to preserve.  In the United States, a party is usually obligated to preserve evidence if he can reasonably anticipate that there will be a civil litigation.  If a party spoliates evidence, even accidentally, a judge might impose sanctions  - - and the sanctions can be serious.

 It is especially important for companies to have an appropriate policy regarding the preservation and destruction of documents to avoid getting into trouble.  In some instances there might be a relevant statute regarding the preservation of documents.  Lawyers in the US will work with corporate clients to prevent spoliation both before and after a litigation arises.  

For example, companies usually keep their emails on their computer servers for a certain period of time.  But for how long?  The company should consult with its attorney regarding how long emails will be preserved and whether certain emails should be retained for a longer period of time.  If there is a civil litigation and the company destroyed emails it should have preserved, a judge could impose penalties.

Below is a short video on spoliation.


Why do judges sometimes write in their decisions that they are assuming all the well-pleaded facts in the plaintiff's Complaint to be true?

 At the early stages of a case a defendant can move to dismiss - - which means to ask the court to dismiss a case, if the plaintiff's Complaint is legally insufficient.  Remember, the Complaint is the plaintiff's document in which the plaintiff explains why he is suing the defendant.  The judge will usually assume that the allegations in the Complaint are true when ruling on the motion to dismiss.    

For example, let's say Paul sues Debby because Debby beat him at a game of tennis and Paul feels sad.  Obviously this is a very silly case, there is no legal remedy for Paul if he lost a tennis match even if his feelings were hurt.  If Debby moves to dismiss the judge will assume for purposes of the motion that everything in the Complaint is true.  Yes, Debby beat Paul at tennis and yes Paul's feelings were hurt.  But even assuming everything in the Complaint is true Paul can't sue Debby for winning a tennis match so the judge will grant Debby's motion to dismiss.

Especially in federal courts you will often see that judges will not accept every allegation as true - - only "well pleaded" allegations.  This can mean different things depending on the case but as a general rule the judge should not accept implausible allegations as true nor does a judge have to accept conclusory statements as true. For example, if Paul alleges that Debby uses magic powers to hurt and confuse him, the judge should not accept this allegation as true because it is implausible.  Also, if a Complaint simply alleges "Debby committed a tortious act resulting in damage to Paul" with no supporting allegations, the judge should not accept this conclusory allegation as true.  

If the court denies a motion to dismiss the case will continue.  Although the judge assumed the allegations were true on a motion to dismiss, at later stages of the case  - - summary judgment or trial - - the court or the jury will not assume the allegations are true.   The plaintiff must prove her case.  

What does it mean when a court denies a defendant's motion to dismiss? The plaintiff wins?

When students from other countries read a U.S. court decision where a judge "denies a motion to dismiss," it may appear that the judge is ruling that the plaintiff won her case.  That's not accurate.

In a civil litigation when a judge denies a defendant's motion to dismiss, the case will continue instead of ending early.   The plaintiff did not win the case.  On the other hand, the defendant failed to convince the judge that the case (or at least one of the claims in the case) must end.

A defendant typically brings a motion to dismiss early in the case.  The defendant is asking the judge to end the case because there is a significant problem.  For example, a defendant may argue that the plaintiff's Complaint has important defects.  The defendant also might argue that the court lacks personal or subject matter jurisdiction.  

 For example, let's say Patty sues David for fraud in a United States federal court.

Rule 9 of the Federal Rules of Civil Procedure requires Patty to include additional detail in her Complaint because she is alleging fraud.   Patty must allege when, where, and how the fraud took place.  If the Complaint does not have this detail David could ask the judge to dismiss the case.  David wants the judge to end Patty's fraud case.

If the judge denies David's motion Patty's case will continue  to the next stage of the litigation.  But Patty has not won her case.

As a practical matter, perhaps David will be more willing to settle the case because the judge denied his motion to dismiss.  But the case is not over - - Patty must still prove her claims if the case goes to trial.


What do appellate courts in the US do? Do they provide the parties with a new trial?

No, on appeal there isn't a new trial.  Appellate courts in the United States are mainly responsible for determining whether the trial judge made a mistake or not.  There are no juries at the appellate level and there is usually a panel of three judges - - in some cases there might be more.  

For example, let's say there was a criminal case in a United States federal district court - - a trial level court.  And we'll say the jury in the criminal case decided that the defendant was guilty.  If the defendant appeals, he is not going to argue to the federal appellate level court (a Circuit Court of Appeals) that the jury was wrong. Instead, he will argue that the District Court judge made an important mistake.  The defendant's lawyer might argue that the judge explained the law incorrectly to the jury.  Perhaps the defendant's lawyer will argue that the judge allowed the jury to consider inadmissible evidence.  Improper jury conduct might also be the basis for an appeal and demand for a new trial.  

If an appellate court agrees that a conviction was improper it may send the case back to a trial level court for a new trial. 

An appeal from a civil case will also focus on whether the judge made a mistake.  For example, let's say a judge grants summary judgment in favor of a defendant.  The plaintiff could appeal the judge's decision on grounds that the judge failed to apply the law correctly or overlooked some important facts.  If the appellate level court decides that the judge made a mistake the court can send the case back to the trial court.

What if a person believes a ridiculous lie - - is it fraud?

The elements of fraud are a representation of a material fact, falsity, scienter, reasonable reliance, and injury.

Taking these in order...


We need to have a statement (or in some cases an omission) about an important fact.  Usually opinions and predictions are not legitimate bases for a fraud case, although there can be exceptions.  If I say vanilla ice cream is delicious but you prefer chocolate, I have not deceived you.

 Also, the fact must be important.  If I sell you a car and I say the car is new, that is probably an important fact.  You'll pay more for a new car than a used car.   If I tell you the car was built last Tuesday morning but the car was built last Tuesday afternoon that is probably not an important difference.


The important representation of fact must be false. If I say a car is brand new and it really is brand new, well, don't complain, I told you the truth.


Scienter means some sort of culpable mental state.  In a fraud case the defendant must know that the statement is false or at least be reckless with the truth.


This is key to the student's question.  If a reasonable person would not believe the lie then the fraud case should fail.  But generally speaking people have a right to believe what they are told.  Courts typically don't expect people to conduct investigations if they have no reason to suspect a lie.  

However, let's say a buyer knows that a car he is buying is used.  The salesperson lies and says the car is new.  The buyer could not reasonably rely on the salesperson's lie if he knew that the car was used.

In most cases the jury will decide whether reliance was reasonable or not unless a judge decides that it was obvious that the reliance was not reasonable.  Judges in the United States have the power to grant summary judgment if all of the important evidence and the law clearly favors one side.   In those cases a judge can grant judgment without a trial.  If it is obvious that a plaintiff did not reasonably rely then a judge could grant summary judgment for the defendant.  


The plaintiff must suffer some type of harm.  Spending money on a new car which is actually a used car would be a typical injury in a fraud case.


What is Summary Judgment?

Summary Judgment allows a judge to decide that a party should win or lose on one or more claims in a civil litigation before trial.

Both federal and state courts allow parties to move for summary judgment.  In the federal court system the relevant rule is Rule 56.

 Although a party can move for summary judgment at any time before trial, usually parties ask for summary judgment after discovery because after discovery all of the evidence has been shared.

To win on summary judgment a party must show that there is no dispute over any relevant material (material = important) fact and that the party must win according to the law.  A simple way to think about summary judgment is that a party is arguing that we don't need a jury because that party has to win.  For example, if A alleges that B drove a car negligently and the evidence indisputably shows that B was not driving the car, B is entitled to summary judgment.  We don't need a trial and the judge should end the case.

Another way to think about summary judgment is that it acts as a balance against easy pleading requirements.  Keep in mind that pleading requirements in the United States are usually lax - - it is easy to start a case.  Summary judgment allows a defendant to eliminate a meritless case before trial.

Both plaintiffs and defendants can move a court for summary judgment.  If the court grants summary judgment the party wins on one or all claims.  If the court denies summary judgment, the case should proceed to trial on that claim.  For example, let's say party A sues party B for breach of contract and battery.  Party B moves for summary judgment on both claims.  The court denies the motion on the contract claim but grants the motion on the tort claim.  The contract claim should go to trial.  

Here is a short video on summary judgment:



Do lawyers select jurors in the United States?

Not exactly.

The jury process begins by summoning people to the courthouse.  Lawyers have no control over this phase of jury selection.  If you are a United States citizen, you will at some point in your life almost certainly have to go to court to appear for jury duty.    Through this system, a  court will generate a large pool of prospective jurors.  If you visit a courthouse you might see hundreds of people waiting to find out whether they are going to serve on jury.

The next phase is to find the right people to serve as jurors for each case from this pool of prospective jurors.  Prospective jurors must answer questions to determine whether they are appropriate.   Depending on the case, sometimes lawyers, sometimes judges, and sometimes both lawyers and judges will question the prospective jurors.   Some criteria are obvious - - a prosecutor can't have his mother serve on a jury.  

Lawyers are allowed to eliminate some people from the jury pool.  For example, if a lawyer thinks a prospective juror will be biased the judge may allow the lawyer to exclude that person from the jury for that case.  Eventually, the judge and the lawyers will settle on a jury and those not selected will either go home or will be sent to a different courtroom to see whether they are suitable for a different case .