Beginning an action: Rule 3

Rule 3 may be the shortest of the FRCP. It simply states that a civil action is initiated by filing a complaint with the court. Although the rule contains few words, it gives you important information about these two issues:

• A civil matter isn’t an action until a plaintiff files a complaint.
• A complaint has to be filed with the court.

Most people resolve civil matters without going to court. The process of settling a dispute over a business contract, for example, is usually mandated by the contract itself, which outlines the penalties for default. So, businesses often solve disputes through arbitration instead of filing a civil complaint. And insurance companies often take care of compensating injured parties in car collisions and other accidents without court involvement. Many potential civil suits get resolved by some other means and never approach the courthouse door. So, attorneys file complaints for cases they think can’t be settled without the help of the judicial system or for cases that run the risk of exceeding the statute of limitations, which is the amount of time the law allows to file a lawsuit.

Federal and state statutes provide maximum periods of time within which civil (and criminal) actions can be filed with the court. These time periods usually start running from the time an injury occurs or is discovered and may be as short as one year. So, sometimes attorneys file complaints before they have thoroughly examined a matter just to make sure a client doesn’t miss her chance to file a case due to the expiration of the statute of limitations. In these situations, the attorney often files the complaint without serving the defendant so that the attorney has more time to research the case before the defendant is brought into the matter.

When deciding when to file a civil complaint, attorneys must consider the statute of limitations, the availability of evidence and witnesses, the level of preparedness of the case, and the schedules of the attorneys, paralegals, and even the plaintiff, who must, after all, devote considerable time to the case.

Attorneys and their staffs have to file complaints with the proper court. Many cases fall under the jurisdiction of a single court, so determining the proper court is easy. In a surprising number of cases, however, several court jurisdictions may be possible. And some courts have advantages over other courts in substantive or procedural law, so you may help your supervising attorney determine the best court to file the complaint with.

Serving process: Rule 4

Rule 4 is a lot longer than Rule 3. It deals with serving a summons and complaint (known as service of process), which is something that paralegals commonly do. When your attorney files a complaint on behalf of a client, the legal team is responsible for properly serving a summons on the other party.

Rule 4 is lengthy because it spells out in detail what constitutes proper service. Serving a summons correctly can be crucial to a case. A party to a case who is served with a summons and doesn’t answer the summons (by appearing in court) is said to have defaulted and loses the case without presenting a defense. So the rules regarding proper service are super specific to prevent a plaintiff from claiming to have served a defendant without actually doing it.

The usual method of serving process is by personal service (not to be confused with the kind of personal service you actually want, like your own private butler!). This kind of personal service is the physical delivery of a summons to the defendant or someone authorized to receive it. The rule gives specifications about who is authorized to accept service for another person. It also specifies the requirements for who is allowed to serve process (basically, someone who is at least 18 years old and not a party to the case, which usually means someone from the plaintiff’s legal staff or a professional process server).

State rules regarding service of process get more detailed when it comes to who can serve process and how it can be done, especially in cases where the defendant is hard to find. Some states allow substituted service, where process may be served by mail or publication in a periodical.

Rule 4 also outlines the methods for proving that the summons was served (called proof of service) within the time limits for serving the summons. A sworn affidavit of the process server or a signed receipt from the person who was served is generally accepted as proof of service. If the summons isn’t served within 90 days of filing the complaint, the court may choose to dismiss the case without prejudice (meaning that the plaintiff can file the complaint again).

Figuring out time limits: Rule 6

One of the more important things for legal professionals to do is keep track of deadlines for filing documents with the court. Rule 6 tells you how to compute time when a federal rule or statute presents you with a specific time limitation.

A deadline includes the last day of a time limit, and if the last day falls on a Saturday, Sunday, or legal holiday, the last day is the day that comes immediately after the weekend or holiday. To compute a time limit that’s expressed in days (like 90 days), you don’t count the day that the limit is issued, but you have to count Saturdays, Sundays, and legal holidays in the total amount of days. For limits expressed in hours, you begin counting hours from the day the limit issued. So, if you were told on Friday at 5:00 p.m. that you have 48 hours to file a document, you’d have to comply with the filing by 5:00 p.m. on Monday (the day following the Sunday ending time).

Time limits for filing by electronic means (eFiling) and other means are slightly different. For electronic service, you generally have until midnight of the due day. For other filing options, the deadline is by the time the clerk’s office closes for the day on which service is due.

The rule lists the days that are considered to be legal holidays (New Year’s Day; Birthday of Martin Luther King, Jr.; Washington’s Birthday; Memorial Day; Independence Day; Labor Day; Columbus Day; Veterans Day; Thanksgiving Day; and Christmas Day) and allows for other holidays that the president may appoint and for state holidays. So, don’t worry: You won’t have to file a motion on Christmas!

For a list of federal holidays, along with the days of the year on which these holidays fall, go to www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/.

Missing a deadline can result in a client’s automatically losing a case before the attorney ever presents the evidence and may be grounds for legal malpractice! If you’re responsible for computing deadlines, make sure you follow the rules.

Drafting pleadings: Rules 8, 11, and 12

As a paralegal you’ll get to know the rules for drafting legal documents well. Taken together, they give the basic forms and required elements of pleadings, defenses, and motions. The rules aren’t particularly wordy, but each paragraph provides a requirement that must be met. Each state has its own rules regarding the elements of legal documents, so make sure you know the local rules as well as the federal ones.

Uncovering the facts: Rules 26, 27, 30, 33, 36, and 37

One of your most important tasks will be to participate in the discovery process, especially if you work in a firm that specializes in litigation or areas that frequently lead to litigation, like personal injury, product liability, medical malpractice, or family law. Discovery is the term used for a variety of means of gathering information, like interrogatories, requests for admissions, requests for production, and depositions. The FRCP sets up rules for performing discovery, too.

Requesting a summary judgment: Rule 56

Before the trial begins, before the attorneys even select a jury, the attorney may submit a motion requesting the judge to decide the case in the client’s favor (called a summary judgment). After the discovery process has ended and before the trial commences, a party may believe that all the important issues should be decided in its favor. That party may move for a summary judgment. Rule 56 concerns the time limits and procedures for these types of motions.

When considering a motion for summary judgment, a judge looks at the other party’s case in the most favorable light. For example, if a defendant moves for summary judgment, the judge looks at the evidence in the way most favorable to the plaintiff. The judge acts as though the jury will believe all of the plaintiff’s witnesses and none of the defendant’s and construes the facts in a way that favors the plaintiff. If, even under these circumstances, the judge feels that the plaintiff couldn’t win the case, she issues a summary judgment and the case ends before trial begins.

As you might imagine, earning a summary judgment is difficult. Judges are reluctant to grant a summary judgment if there’s any possibility that the other party can win the case.

The main event: General provisions

We focus our discussion on the Federal Rules of Evidence (FRE), not only because they govern federal cases but also because so many state rules are modeled on them. The federal rules and most of their state counterparts begin with general provisions that set the foundation for the remaining more specific rules that deal with the admissibility of evidence.

The formal written abbreviation for the Federal Rules of Evidence is Fed.R.Evid., but most people refer to these federal rules as the FRE because it’s much easier to say this abbreviation than the formal one. So, informally and in speaking, most legal professionals refer to the Federal Rules of Evidence as the FRE.

We limit our discussion of the FRE to those rules we think are most pertinent to paralegals, but you can find a link to the entire text of the FRE online.

Article I of the FRE states that the purpose of the rules is to promote fairness and gives general procedural standards for admitting evidence. The rules clearly protect the jury from hearing anything that might prejudice its deliberations.

The court has to conduct rulings on the admissibility of evidence so that inadmissible evidence isn’t suggested to the jury by any means. The court must conduct hearings on the admissibility of confessions out of the hearing of the jury. The general provisions also address the partial admission of evidence and the admission of evidence based on the condition of certain facts being proved later.

What matters: Relevancy

The first consideration for any evidence is relevancy, which is the focus of Article IV of the FRE. If a piece of evidence has no bearing on the matter at hand, it can’t be admitted in court, but sometimes determining whether evidence is relevant isn’t clear-cut. Direct evidence of a fact is certainly relevant, but evidence that just provides context may not be.

For example, a defendant in a personal injury case may argue that accounts of the plaintiff’s personal life relate to the matter at hand. Sordid details the defense reveals about the plaintiff may influence the jury to disengage from the plaintiff and decide for the defense. The plaintiff argues that such details have nothing to do with the case at trial. It’s up to the judge to decide whether the private life of the plaintiff is, in fact, relevant and, therefore, admissible.

To determine the relevancy of a piece of evidence, the judge weighs the answers to two questions:

• Does the evidence help to prove or disprove a disputed fact?
• Is the fact in dispute material (or integral) to the case at hand?

If the evidence isn’t relevant to a fact or if the fact isn’t relevant to the case, the judge probably won’t allow the jury to hear it.

Sometimes even relevant evidence doesn’t make it to the jury. Under the FRE, the only way that relevant evidence may be excluded is if its importance to a party’s case is significantly offset by the danger that the evidence may unfairly prejudice or mislead the jury, confuse the issues, or cause an excessive delay in the proceedings. So, relevant evidence that’s repetitive may be excluded from a trial, as may evidence that excites the emotions of the jury in a way that gives the evidence more weight than it logically deserves.

Something special: Privilege

Article V of the FRE regarding privileged communications is very general. It maintains that the law considers communications in certain relationships to be privileged. This means that communications conducted within these relationships may not be revealed in court testimony unless both members of the relationship agree to the disclosure.

It’s up to the states to determine which relationships are privileged, but in most cases communications made in the following relationships are privileged and, therefore, inadmissible:

• Attorney and client
• Doctor and patient
• Husband and wife
• Psychotherapist and patient
• Clergy and penitent

These privileges protect confidential communications, limit government invasion into people’s lives, and avoid likely perjury as a result of coerced testimony.

Privileged communications aren’t boundless. For example, attorney-client privilege doesn’t apply when the confidential communications concern the client’s plans to commit a crime or cause harm to others.

All there?: Competency to testify

Article VI concerns testimonial evidence, too. The general rule is that people are competent to testify unless they meet specific provisions. The judge and jury are, or course, free to weigh the value of the testimony based on their own consideration of the witnesses’ fitness.

The FRE does provide some guidelines for determining competency, however. A witness may be disqualified from providing testimony if it’s proved that the witness lacks personal knowledge of the event at trial. An expert witness can review the case and testify, but other witnesses can only address issues that they have personal knowledge of. The presiding judge and members of the jury can’t be called as witnesses.

The rules also outline circumstances that don’t affect competency to testify. For instance, requiring an interpreter doesn’t make a witness incompetent to testify. And children and the mentally challenged may be called to testify, but they may have to answer a series of questions designed to determine their competency. These question-and-answer sessions usually occur outside the presence of the jury to determine whether the witness understands the need to tell the truth, can distinguish fact from fantasy, and has the ability to communicate with the judge and jury in a meaningful way. If a witness can demonstrate these qualities, under the federal rules she’s competent to testify.

Thinking logically: Reasonableness of opinion

In a court of law, there are opinions and there are expert opinions. Article VII addresses opinion testimony. The FRE refers to non-experts as lay witnesses. The rules limit the opinions that lay witnesses may present. They can only give opinions that are rationally based on their own knowledge and helpful to the jury’s understanding of their testimony, which means their testimonies may consist only of recitations of the facts and not their interpretation of those facts.

Expert witnesses, on the other hand, aren’t limited by either the rule requiring firsthand knowledge or the rule against opinions. If an expert’s knowledge can assist the judge or jury in their understanding of a case, that expert is allowed to testify and give opinions on areas of the case that fall within his expertise. A common example is a doctor who provided testimony as to the severity of an injury in a personal injury case or about the cause of an injury in a medical malpractice case.

A judge may determine the reasonableness of an expert’s opinion or whether the expert witness has strayed beyond his area of expertise. If the judge believes the expert opinion is unreasonable or beyond the scope of expertise, the testimony may be stricken from the record.

You may assist in finding individuals to provide expert testimony on important matters at trial. Make sure you let the witnesses know that they must stick to their areas of expertise.

The telephone game: Hearsay

Generally, only those who have firsthand knowledge of the circumstances can present testimony about the truth of certain facts in a case. Article VIII of the FRE broadly states that the persons who may testify to a statement or event are those who actually made the statement or witnessed the event. Testimony to a statement by someone other than the one who made the statement (unless the one who made the statement is a party in the case) is called hearsay. As the word implies, this type of testimony involves a witness who hears something and then says it on the witness stand.

Anyone who has ever played the telephone game at parties knows the problems that occur when someone repeats what he has heard from someone else. The person overhearing the testimony may be wrong in what he hears or reports. The person telling the story may embellish or assume facts that he doesn’t have firsthand knowledge of. For these reasons, and because hearsay evidence doesn’t allow the other side to cross-examine the one who actually made the statement, federal and state courts usually don’t allow for the admission of hearsay evidence. If you want eyewitness testimony allowed in a case, you have to bring in the actual eyewitness and not that witness’s best friend to whom she related the whole story.

The rules don’t consider testimony about statements made by a party to a case to be hearsay when the testimony is used to prove whether that party is telling the truth. Nor is it hearsay to provide testimony that contradicts statements made by a prior witness.

The rules of evidence provide for some exceptions to the hearsay rule. In these cases, testimony may be admitted as evidence even though it’s hearsay. The exception rules are too numerous to list here, but one example is testimony regarding comments someone overheard another person say in an excited state immediately after the relevant event (called the exited utterance exception).

The rules regarding hearsay and its exceptions are voluminous and complex, so make sure you familiarize yourself with the complete text of Article VIII of the FRE, as well as with your state’s rules regarding hearsay, so you have an understanding about what kinds of testimony may or may not be allowed.

The real deal: Authenticity and originality

Most of the rules we’ve discussed concern testimonial evidence, but articles IX and X primarily concern tangible evidence. (For more about the difference between testimonial and tangible evidence, turn to Chapter 11.) Documents or tangible objects used at trial have to be authenticated so that the court knows the objects really are what they’re purported to be. You should only present originals so that no controversy arises over the item’s legitimacy. For example, a document said to be written by the deceased in a controversy over a will needs to be authenticated because it’s only relevant to the proceedings if the deceased actually wrote it. A gun said to be found at the scene of a crime and belonging to the defendant is only relevant if it’s proved that it was found at the scene and belonged to the defendant.

Methods of authentication vary based on the type of evidence. Handwriting experts may provide testimony about signed documents. In other cases, serial numbers, fingerprints, and eyewitness testimony may help authenticate whether an item belonged to a particular individual. It may be your job to provide proof of the authentication of evidence in court. This could require testing at labs or the use of expert testimony to prove that a piece of evidence is what your attorney claims it is.