The book is designed for pre se litigants but provides the best overview of the civil litigation process I have read to date.
Some of the terms are fund to say, like “Nunc Pro Tunc” (when a judge’s decision applies retroactively) and “ipse dixit” (describing an assertion based only on the authority of the person who made it). (page 9)
In 1972, the U.S. Supreme Court held that pleadings drafted by pro se litigants should be held to a “less stringent standards than pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519 (1972).
Those so-called “Rule 26 initial disclosures” must contain the names and contact information of all individuals with relevant information the disclosing party may use to support their claims or defenses. (page 19)
Generally, compensatory damages include 1) special damages, which are objective and easily quantifiable damages, such as medical expenses and lost wages, and 2) general damages, such as pain and suffering and mental anguish. General damages are more subjective and more difficult to calculate. (pages 23-24)
A cause of action is a set of facts that the law allows you to bring as a lawsuit, such as false arrest, employment discrimination, or breach of contract. (page 35)
A tort is a wrongful act…It does not included breach of contract claims or allegations of criminal conduct. (page 35)
You need to know the date the in\cident occurred (a question of fact) and the applicable Statute of Limitations (a question of law). But you also need to know the date the legal claim accrued. The “accrual date” is the date your case became a legally viable legal claim. In other words, it is the first date you would be allowed to file your lawsuit….Statutes of Limitation dictate the strict deadlines for filing a lawsuit, and missing this deadline means you’re barred from filing. Some SOLs are two years while others may be three years or even longer. This period of time is known as the limitations period. (page 38)
There are exceptions to SOLs. First, the SOL for minors does not begin to run until the minor’s 18th birthday….Minoirs are not allowed to file lawsuits on their own behalf. (page 39)
Generally, you can sue individual police officers and municipalities (such as cities, towns, and villages), but you cannot sue police departments….Police departments are generally considered internal departments operating as part of the municipalities rather than stand-alone entities with a legal existence separate from those municipalities,. (page 46)
Prosecutorial immunity is a huge immunity. It protects a massive amount of wrongful conduct by prosecutors. This immunity applies even if the prosecutor: presents false evidence; willfully suppresses exculpatory evidence (exculpatory evidence is evidence that is favorable to the criminal defendant); prosecutes maliciously; acts without probable cause; coerces witnesses to lie; hides evidence of innocence; fabricates evidence of guilt – even when the prosecutor intentionally violates the Constitution of causes a wrongful conviction. Why on earth does this immunity exist, you ask? Good question. It is not in the Constitution. It is not in a federal statute. Like qualified immunity, it was created by judges. The purpose is to allow prosecutors to do their jobs without second-guessing themselves for fear of harassing lawsuits. (pages 48-9)
Like prosecutors, judges are entitled to absolute immunity for their actions during the judicial phase of the case. By definition, judges are almost always involved only in the judicial phase of the case. (page 50)
All government employees, including police officers, correctional officers, sheriff’s deputies, and prosecutors, are protected by qualified immunity, which shields them from civil liability even if they violate someone’s constitutional rights, as long as the right allegedly violated was not “clearly established” at the time of the alleged violation….Like other forms of immunity, qualified immunity is not contained in the Constitution or any statute. (page 51)
there are currently 94 federal district courts in the United States. These are the trial courts where lawsuits are filed and where they are tried. These courts also hear federal criminal cases. (page 57)
The federal appellate court system is divided into 13 circuits. Twelve of those circuits are geographic. This includes 11 numbered circuits plus the District of Columbia Circuit, which only decides cases from Washington, D.C. The 13th circuit is called the Federal Circuit which decides specific types of cases, including patents trademarks, and government contracts, from all over the country. (page 58)
Diversity cases must involve amounts greater than $75,000, and complete diversity of the parties is required. In other words, none of the opposing parties can be from the same state. (page 60)
You can file federal claims based on federal law in state court. However, if your case includes at least one federal claim, any defendant in your lawsuit may file a motion to “remove” (i.e., transfer) the lawsuit to federal court – if they seek removal within 30 days of service of the complaint. (page 61)
while there are only 94 federal judicial districts in the U.S., there are 3,143 counties. (page 62)
Federal civil rights claims include the possibility of punitive damages. It can be far more challenging to seek punitive damages in state court. (page 63)
Remember, it’s okay to plead conclusions. We do it all the time to state the legal requirements of a particular cause of action. But a plaintiff must also plead facts establishing those conclusions. (page 70)
The less mumbo, the better. In fact, complaints do not even have to be typed. (page 71)
Remember, the jury will never see your complaint. It is simply a legal document intended for a specific purpose. (page 72)
If a plaintiff makes a factual assertion in a complaint that has the effect of defeating his legal claim, he has effectively “pleaded himself out of court.”
If you file against a number of defendants, but are not able to specify exactly what each of them did and what role each of them had in violating your rights, the defendants may move to dismiss your complaint, arguing that you engaged in something called group pleading, which means suing a group of defendants without telling them what each of them did. (page 75)
When people in the law say a defendant may “answer or otherwise plead”, they mean the defendant can file an answer or file a motion, usually a motion to dismiss the complaint. (page 83)
Each party is limited to 25 interrogatories to each other party without leave of court (without the court’s permission)…There is no limit to the number of production requests a party can make….A subpoena (FRCP45) is the discovery tool parties use to obtain information from people and entities that are not associated with the lawsuit (a.k.a. “non-parties”). (page 90)
Parties may not engage in discovery (meaning they cannot send out discovery requests or subpoenas or take depositions) until the Rule 16 conference, which will be scheduled by the judge. The Rule 16 conference (named for FRCP 16) is a meeting between the judge and the attorneys or unrepresented parties to discuss the scheduling order, which contains deadlines to complete discovery, amend the complaint, and name additional parties. The Rule 16 conference is usually scheduled a month or two after the complaint is filed. (page 91)
If you believe you really need to serve more than 25 interrogatories on another party, you can file a motion asking the court for leave to file additional interrogatories. However, judges rarely grant such motions, as you rarely need more than 25 interrogatories. (page 97)
That’s another way of saying the scope of discovery is broad, and while the requested information must be relevant, it does not have to admissible at trial. Generally, if the requested information could lead to admissible evidence, that is enough. (page 98)
A rider is a document you attached to a subpoena that explains exactly what you want because subpoenas contain very little room to write. (page 108)
In federal lawsuits, a deposition may take up to seven hours, not including breaks. In Illinois, by contrast, state court depositions are limited to three hours. These time limits can be extended by the court in response to a motion, or by agreement of the parties. (page 109)
Things have changed a bit since the pre-pandemic days. Many depositions – like many court appearances – are now conducted over Zoom, which makes things much easier and more convenient, especially when the parties and the witness may be in different states. (page 111)
While I highly recommend hiring a court reporter for depositions, a court reporter is not required under Rule 30. You just need someone authorized to administer oaths, such as a notary public, and some way of recording the deposition, like a tape recorder or a video camera. (page 111)
Under FRCP 30, you need the court’s permission (also known as “leave of court”) to take more than 10 depositions. (page 112)
Except in very rare circumstances, do not interrupt the witness, even if the answer is long and not responsive to your question. The solution to non-responsive answers is to wait until the witness has completed the answer, and then, for the record, move to strike the answer as nonresponsive. (page 115)
There is no judge present in a deposition (with very few exceptions). Attorneys and pro se litigants make objections “for the record.” That means the objections are preserved in the transcript, but the rare occasion when an objection is ruled upon by a judge, it will not be until later, probably right before the trial. (page 116)
Only parties and their attorneys may attend a deposition, unless the parties all agree that someone else may be present during a deposition. (page 118)
A trial is a battle for the hearts and minds of the jury or the judge. Frankly, it’s more heart than mind. One of the quickest ways to succeed in front of a jury or a judge is to be sincere and reasonable – make them see the case through your eyes. (page 119)
The Dirty Little Secret about discovery is that parties will often provide minimal responses to discovery requests, and wait for the other side to call them on it. (page 125)
“On summary judgment [a court] must view the facts and make all reasonable inferences that favor them in the light most favorable to the party opposing summary judgment. (page 136)
For instance, many courts require that the parties file a statement of material fact (SMF). A statement of material facts is a list of facts that the party asserts are undisputed that support the party’s position on the summary judgment motion. All material facts must be supported by specific references to the evidentiary record, such as deposition testimony, exhibits or affidavits. Each proposed material fact must be supported by either sworn testimony (like deposition testimony or sworn affidavits), or authenticated exhibits, like documents or video or audio footage. (page 138)
The party opposing the motion for summary judgment will be required to respond to each item in the moving party’s statement of material facts, by stating whether each item in the statement of material facts is disputed or undisputed. If the non-moving party claims the item is disputed, it has to cite to the portion of the evidentiary record supporting its claim that the item is disputed….In addition to filing a response to each item in the statement of material facts, the responding party must also file his own statement of material facts, usually referred to as a statement of additional material facts. In its reply brief, the moving party will respond to each item in the opposing party’s statement of additional material facts.(page 139)
There is no amended complaint that can be filed after a court grants summary judgment in favor of a defendant, because you’re no longer talking about allegations. Summary judgment addresses the evidence that would come out at trial. (page 140)