1. PA110 Civil Litigation Week 5 Seminar

2. Week 5 Assignment • Finish reviewing the components of the answer • Midterm exam review • Exam available immediately following the seminar

3. Cause of Action • Every claim for relief must have a legal theory • In other words, you must have a legal “cause of action” in order to file a suit • If not, the court will disallow the case • The cause of action is asserted in the complaint

4. Cause of Action • The cause of action often has elements to prove in order to meet the legal definition: • For example: Torts • A mere perception of the wrongdoing is not sufficient • The plaintiff must prove the cause of action • Each cause of action has specific remedies available that a court may grant • Compensatory Damages • Punitive Damages

5. Affirmative Defenses • A defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true. • Civil case examples: • Statute of Limitations (begins at cause of action) • Consent (for example: trespass) • Assumption of the Risk (for example: skydiving) • Contributory Negligence (varies by state)

6. Affirmative Defenses • Must be raised in the Defendant’s Answer, or they are waived • Burden of Proof: • preponderance of the evidence • Defendant

7. Jurisdiction PJ: Personal Jurisdiction SMJ: Subject Matter Jurisdiction Venue

8. SMJ: Subject Matter Jurisdiction • Jurisdiction over the nature of the case and the type of relief sought • The extent to which a court can rule on the conduct of persons or the status of things • Defendant can challenge SMJ at any time, even after entry of judgment

9. SMJ - Federal • Civil lawsuits that arise under federal laws • Cases between two or more states • Civil lawsuits that arise under the United States Constitution • Cases between a citizen of one state and the citizen of another state where the amount in controversy is $75,000 or more

10. PJ: Personal Jurisdiction • aka in personam jurisdiction • A court’s power to bring a person into its adjudicative process • Jurisdiction over a defendant’s personal property interests • This can be a complicated and convoluted area of law with many pitfalls and obstacles should opposing parties decide to contest personal jurisdiction.

11. PJ: Personal Jurisdiction • EXAMPLE: Denise and Walter spent their entire married life in Colorado. Denise moved to New Mexico, established residency and sued for divorce. If Walter has virtually no contacts with New Mexico, the New Mexico court has no personal jurisdiction over him. As a practical matter, this means the court may award Denise a divorce, but cannot make any decisions affecting the division of property, an award of alimony or child support, or a determination of custody and visitation because these matters affect Walter's rights as an individual. If, however, Walter and Denise spent five weeks every summer during their marriage in New Mexico, the court may rule that Walter's contacts with New Mexico are sufficient for there to be personal jurisdiction in New Mexico.

12. PJ: Personal Jurisdiction • Unlike SMJ, PJ is an affirmative defense • The defendant can waive the PJ defense either intentionally or inadvertently • Can be challenged: • In the answer • In a motion • By a personal appearance in court to make the challenge (less likely of the three)

13. Venue • The proper or a possible place for trial of a case • Usually because the place has some connection with the events that have given rise to the case

14. Jurisdiction: Must meet ALL PJ: Personal Jurisdiction SMJ: Subject Matter Jurisdiction Venue For Example: If a court has PJ, but not SMJ, they cannot hear the case!

15. Couple Misc Points of Review • Illustrative evidence: pictures from the scene of the accident even after it was cleaned up (shows intersection, etc.) • Witness statements • Can be used for their own recollection when preparing for trial • If made under oath can be used to impeach a witness if version of facts change • Review arbitration awards! 