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CHAPTER II.

THE FIVE REQUIRED ELEMENTS OF A LAWSUIT

There are five very important elements that must exist before you can file a case in federal court. The following is a summary of the things you should consider before filing a case in federal court. This summary is not to be considered the final word. Before continuing, you must understand that even if you have met all five elements, there is always a possibility that you may not win.

THE FIVE REQUIRED ELEMENTS OF A LAWSUIT

A. Real Injury or Wrong.

B. Jurisdiction.

C. Statute of Limitations.

D. Immunity.

E. Facts and Evidence.

A. REAL INJURY OR WRONG.

Cases brought by persons without counsel typically fall into two categories: civil rights violations and tort claims.

A civil rights case involves a claim seeking redress for the violation of a person’s constitutional rights. This type of claim is often brought under the federal statute, 42 U.S.C. S 1983. Under this law, a person who acts under color of state law to violate another’s constitutional rights may be liable for damages.

A tort is defined as a “private or civil wrong or injury.” It is distinguished from criminal law because it is an injury against an individual and not the state (city, county, or state government). If a person ran a stoplight and hit your car, the state would ticket the driver for running the stoplight but it would not be able to sue the driver for the injuries received by the victim of the other car. That is considered a private wrong or injury and it is the right of the victim to file a civil suit against the driver seeking damages for the injuries received.

There are three types of torts: intentional, negligence, and strict liability. You cannot sue someone just because you are angry at them; you have to have been injured in some way. You can bring a tort action in federal court if a violation of a federal law has occurred.

B. JURISDICTION

Jurisdiction is the authority given a court to hear and decide certain cases. For a court to render a valid judgment, it must have both jurisdiction over the subject matter of the controversy and jurisdiction over the persons or entities involved. The court system is described more fully in Chapter IV of this handbook; however, to file a case in federal court, you must meet at least one of two important criteria:

1. The case must deal with a “federal question” of law; or

2. The parties to the case must be residents of different states (known as diversity of citizenship) and the monetary amount in controversy must exceed $75,000

Federal courts enforce “federal law,” that is, the United States Constitution and federal statutes enacted by Congress. State courts enforce state laws. Sometimes they overlap, such as in diversity cases. This is why it is important that legal counsel is obtained as often as possible.

C. STATUTE OF LIMITATIONS.

A statute of limitations is that part of the statute that sets a particular period of time within which a suit can be filed. It begins to run when the injury or right has been violated. Some examples are as follows:

1. Car accident or other personal injury: 2 years
2. Civil rights violation: 2 years
3. Contract dispute: 6 years
4. Medical malpractice: 2 1/2 years

D. IMMUNITY.

Immunity prohibits you from suing a person who is performing his/her duties as prescribed by law. When a judge decides a case, he is immune from suit because he is performing the duties directed by law. However, if a judge has operated his car illegally and caused you to be harmed, you can sue him for damages because driving his car does not fall under the duties of being a judge.

Most government employees are immune from suit if they are performing their assigned duties and are not aware of a violation of the law.

You should realize that immunity may be a defense that prevents a person who is sued from being liable. There may be other legal defenses that the person can assert which will also protect them from liability.

All judges are subject to the Code of Conduct for United States Judges. The Clerk of Court and Clerk’s Office staff members are subject to the Code of Conduct for Judicial Employees. Part of the codes of conduct prohibit Clerk’s Office employees from accepting any gift, without exception, from anyone seeking official action from or doing business with the court or from anyone whose interests may be substantially affected by the performance or nonperformance of official duties. This prohibition includes accepting any sort of holiday gift, whether intended for the Clerk’s Office as a whole or for a specific individual.

Complaints about the performance or behavior of Clerk’s Office staff should be made to the Clerk of Court or to one of the judges. Complaints about judges’ decisions on procedural matters or the merits of disputes can only be addressed through the regular appellate process. Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or that a judge is unable to discharge all the duties of the office by reason of mental or physical disability may file a complaint pursuant to the Rules of the Tenth Circuit Judicial Council Governing Complaints of Judicial Misconduct or Disability.

E. FACTS AND EVIDENCE.

You cannot sue someone because you believe or you have a feeling the person has violated your rights. You must have facts to support your lawsuit such as the time and place of the incident, witnesses who observed the behavior, and actual articles of evidence such as a gun or a police report or other documentary evidence. The burden of proof is on the plaintiff to win the case; and without factual evidence, the case cannot be won.

It is very important that you have all five required elements before you consider filing a case against someone or some entity. After all of these elements are met, you must still follow the procedures set out for the particular court you will file your case with. In Chapter V of this handbook, we will discuss the rules and procedures for filing lawsuits in the United States District Court for the District of Idaho. If your case needs to be filed in any other court, you should contact the clerk’s office of that court for information regarding local rules and procedures for filing your particular case.

Chapter III deals with information regarding representation by legal counsel. Please take time to read the information provided. There are alternatives to filing a lawsuit on your own, and you should give these alternatives your utmost consideration.

CHAPTER III.

REPRESENTATION BY AN ATTORNEY: IT’S IMPORTANT

This handbook was developed to address the needs of the litigant who wishes to file a lawsuit pro se, without the aid of an attorney. However, we feel it is very important that the pro se litigant understand that there are alternatives to representing yourself if you are indigent. Additionally, there are matters that are extremely complex and each matter deserves appropriate representation.

In a criminal case, a defendant is entitled to legal counsel by the United States Constitution and one can be provided if indigence is shown on the part of the defendant. However, in a civil case, the plaintiff is not entitled to an attorney. There are organizations that can help obtain counsel in civil matters for nominal fees or even on a volunteer basis. The Idaho State Bar has a referral service that lists attorneys who belong to the Idaho Volunteer Lawyers and they are willing to help indigent parties in several different ways. Legal Aid Services is also available as well as the American Civil Liberties Union. There are also attorneys who would be willing to represent you on a contingent fee basis where the attorney collects a fee only if money is won in the suit.

In Idaho, the telephone numbers to call are:

Idaho State Bar: (208) 342-8958
Idaho Legal Aid Services, Inc.: (208) 345-0106
American Civil Liberties Union: (208) 344-5243

A. ALTERNATIVES TO LITIGATION IN FEDERAL COURT.

Under the Civil Justice Reform Act of 1990, the United States District Court for the District of Idaho has adopted the concept of Alternative Dispute Resolution (ADR). ADR provides options of resolving disputes before and/or after a lawsuit is filed. There are many forms of ADR, and the following is a description of the four basic forms:

1. Arbitration: A dispute resolution process in which one or more arbitrators issue a non-binding judgment on the merits after an expedited, adversarial hearing. The arbitrator’s non-binding decision addresses only the disputed legal issues and applies legal standards. Either party may reject the non-binding ruling and request a trial de novo in district court within 30 days of the arbitrator’s decision. If they do not request trial de novo and do not attempt settlement, the arbitrator’s decision becomes the final, non-appealable decision.

2. Mediation: A flexible, non-binding dispute resolution process in which an impartial neutral third party–the mediator–facilitates negotiations among the parties to help them reach settlement. A hallmark of mediation is its capacity to expand traditional settlement discussions and broaden resolution options, often by going beyond the legal issues in controversy. In the District of Idaho, all civil cases except prisoner petitions, Social Security, student loan recovery, Medicare, forfeiture, Bankruptcy appeals, federal tax suits, Federal Tort Claims Act cases in excess of $1 million, cases involving Temporary Restraining Orders, Preliminary Injunctions or other extraordinary injunctive relief will be automatically assigned to mediation. In addition, all Bankruptcy adversary proceedings and contested cases shall be eligible for assignment to mediation. A party will be allowed to “opt out” of the mediation process only upon successfully demonstrating to the Court by motion that “compelling reasons” exist as to why this mediation should not occur or could not possibly be productive. Mediation is governed by General Order #130.

3. Settlement Pursuant to Local Rule 68.1, Settlement Conferences, the parties

Conference: are required to explore the possibility of settlement prior to trial. At any time after an action or proceeding is at issue, any party may file a request for, or the assigned judge on his own initiative may order a settlement conference. A conference is then held before an assigned judge who facilitates the parties to come to settlement. All information provided to the settlement judge is confidential.

The purpose of ADR is to provide an incentive for the speedy, fair, and economical resolution of controversies by informal procedures while preserving the right to a conventional trial. There is no penalty for non-participation in these programs or for not accepting the decision/award. Parties retain the right for a trial de novo.

United States Arbitration & Mediation of Idaho provides information and facilitation of the above alternatives prior to filing a lawsuit in federal court. Its address and telephone number are as follows:

P. O. Box 7803
Boise, ID 83707

(208) 338-7770

B. NECESSITY OF EXHAUSTING AVAILABLE REMEDIES.

You should be aware that, in some instances, it is necessary for you to pursue all remedies that may be available before you can pursue a claim in court. There are two areas in particular where this is likely to arise: (1) if you are appealing an agency decision, or (2) if you are seeking a writ of habeas corpus in the federal court.

1. Administrative Grievance Procedures.

Often times people want to appeal the decision of some governmental agency that affects them. An example of this is in the area of Social Security benefits.

If you want to appeal the denial of some benefit that is provided through an agency of the United States government or the state of Idaho, you must pursue all of the administrative procedures which are set up by the agency before you can bring a lawsuit. Only after you have pursued and exhausted the administrative procedure will the court have jurisdiction to hear a claim.

2. Petition for Writ of Habeas Corpus.

A person who is incarcerated or is otherwise in custody pursuant to court order may wish to challenge the fact or duration of his confinement. Such a challenge would be brought as a petition for writ of habeas corpus against the person or entity who holds them in custody, e.g., state or county. If the person can successfully show that a constitutional right was violated, which would have otherwise prevented the incarceration (“fact of incarceration”) or the duration of the incarceration the court will grant a writ of habeas corpus.

However, before such a petition can be filed in the federal court, the petitioner must pursue and exhaust all available state law remedies. This means that if you want to challenge a conviction or a sentence, you must pursue your right of appeal under Idaho law. This may be accomplished in two ways: (1) the direct right of appeal to the Idaho Supreme Court, or (2) by filing a petition for post-conviction relief in the state district court followed by an appeal to the Idaho Supreme Court. Only after you have fully pursued the available state law remedies will you be eligible to pursue a federal petition for writ of habeas corpus.

C. ATTORNEY FEE SANCTIONS AND HOW THEY APPLY TO THE PRO SE LITIGANT.

Pro se litigants are subject to the same sanctions as licensed attorneys. Pursuant to Local Rule 1.3, Sanctions:

(a) The court may sanction for violation of any local rule governing the form of pleadings and other papers filed with the court only by the imposition of a fine against the attorney or a person proceeding pro se.

(b) Other sanctions for non-technical violations are provided through the Federal Rules of Civil Procedure including but not limited to imposition of costs, allowance of attorney fees, dismissal or default in the action, contempt proceedings, and suspension or disbarment of counsel.

In many cases, the prevailing party may be awarded costs to be paid by the non-prevailing party under certain conditions.

Pursuant to Local Rule 54.1, Taxation of Costs:

(a) Within ten (10) days after entry of judgment, under which costs may be claimed, the prevailing party may serve and file a cost bill requesting taxation of costs itemized thereon.

These costs shall include clerk’s fees and service fees; trial transcripts; deposition costs; witness fees; mileage and subsistence; exemplification and copies of papers; maps, charts, models, photographs, summaries, computations, and statistical summaries; interpreter fees; docket fees; and other items with prior court approval.

Local Rule 54.3, Award of Attorney Fees, states that “attorney fees will not be treated as routine items of costs. Attorney fees will only be allowed upon an order of a judge of the court after such fact finding process as the judge shall order.” Rule 54.3 sets out the requirements for petitioning the court for an award of award fees; and after the petition is filed by the prevailing party, the other party has fourteen days to object to the award.

As a pro se litigant, you must remember that if you are not the prevailing party in your lawsuit, you could be required to reimburse the other party(ies) for their costs and attorney fees, subject to the fact finding of the judge.

NOTE: The following paragraph is quoted from the Federal Rules of Civil Procedure:

Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party’s pleading, motion, or other paper and state the party’s address. . . . The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

CHAPTER IV.

THE STRUCTURE OF THE COURTS
OR
SHOULD THIS CASE BE FILED IN STATE OR FEDERAL COURT?

There are two court systems in the United States: the state courts and the federal courts. The state courts typically hear matters relating to civil, criminal, domestic (divorce and child custody), probate, and property in accordance with the laws of each state. Matters typically heard by the federal courts involve violation of federal laws; admiralty and maritime matters; United States patent, trademark, and copyright matters; bankruptcy proceedings; proceedings against ambassadors, consuls, and ministers. These matters usually fall into two main categories: (1) federal question cases — cases which arise under the Constitution, laws, or treaties of the United States; and (2) diversity cases — civil matters arising between parties who are citizens of different states and the amount in controversy exceeds $75,000.

Remember, in Chapter II we discussed the five required elements of a lawsuit. Before filing a case in a federal court, you must decide if the court has jurisdiction. Jurisdiction is the authority given a court to hear and decide certain cases. The United States Supreme Court is given its authority by Article III of the United States Constitution. There may be instances when the United States Supreme Court might review a judgment rendered by a state court, but those instances are rare, occurring only when there has been a final judgment or decree of the highest court of the state in which a decision could be had involving a substantial federal question. Normally, the United States Supreme Court reviews judgments rendered by the United States Courts of Appeals, of which there are thirteen federal judicial circuits. The United States Supreme Court has original jurisdiction over matters involving treason and presidential impeachment.

The following are all of the other federal courts which are established and given their authority by acts of Congress enacted under constitutional authority.

o United States Courts of Appeals:

– The Courts of Appeals for the District of Columbia and for the First through the Eleventh Circuits hear appeals from the federal district courts, bankruptcy courts, and tax courts. They also review some decisions of various federal administrative agencies.

– The United States Court of Appeals for the Federal Circuit hears appeals from final decisions of federal district courts for civil actions arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks, including claims of unfair competition when joined with substantial and related claims dealing with patents, copyrights, etc. as well as the final decisions of the district courts and the United States Claims Court where the United States is sued as defendant, and appeals from decisions of the United States Court of International Trade, and United States Patent and Trademark Office, the United States International Trade Commission relating to unfair import practices, and decisions by the Secretary of Commerce relating to import tariffs, among others.

o United States Court of Military Appeals. This court hears appeals from court martial decisions. There is no further appeal from this court.

o United States Claims Court. This court hears certain kinds of actions against the United States Government, except those involving tort claims under the Federal Tort Claims Act. These cases may be appealed to the United States Court of Appeals for the Federal Circuit.

o Tax Court of the United States. This court hears cases concerning the federal tax laws. Its decisions may be appealed to the United States Court of Appeals.

o United States Court of International Trade. This court hears cases concerning the federal tariff laws. Its decisions may be appealed to the United States Court of Appeals for the Federal Circuit.

o United States Bankruptcy Courts. These courts hear all matters pertaining to bankruptcy and financial reorganization. Their decisions may be appealed to the United States District Court and, in some cases, to the appropriate United States Court of Appeals.

o United States District Courts. These courts try both criminal and civil actions and sit as admiralty courts. They may also review decisions of federal administrative agencies. There is at least one United States District Court in each state. Their decisions may be appealed to the appropriate United States Court of Appeals.

NOTE: The United States District Court for the District of Idaho is located in the Ninth Circuit of the United States Courts of Appeals.

The federal district courts have both civil and criminal jurisdiction. They have original jurisdiction in the following types of actions:

o Civil actions arising under the Constitution, laws, or treaties of the United States (“federal question” cases).

o Actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states; citizens of a state and foreign states or citizens or subjects thereof; or citizens of different states in which foreign states or citizens or subjects thereof are additional parties (“diversity” cases).

o All criminal offenses against the laws of the United States.

o Admiralty, maritime, and prize cases.

o Bankruptcy matters and proceedings.

o Actions of interpleader involving money or property of value of $500 or more claimed by citizens of different states.

o Action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission.

o Actions or proceedings arising under any act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies (“antitrust” cases).

o Any civil action arising under any act of Congress relating to the postal service.

o Actions arising under any act of Congress providing for internal revenue or revenue from imports or tonnage except matters within the jurisdiction of the United States Customs Court.

o Any civil action authorized by law to be commenced by any person dealing with civil rights, election disputes, and voting rights.

o All civil actions, suits, or proceedings commenced by the United States or by any agency or officer thereof.

o Actions for recovery of interest revenue tax or actions not exceeding $10,000, founded upon the United States Constitution, any action of Congress, or any regulation of any executive department (The United States Court of Claims has concurrent jurisdiction in these actions).

o Actions for the partition of lands where the United States is one of the tenants in common or is a joint tenant.

o Actions involving national banks and other federal corporations.

o Actions involving labor disputes which are authorized by specific statutes to be litigated in federal court.

o Aliens’ actions for torts.

o Tort claim actions against the United States.

o Actions and proceedings against consuls or vice consuls of foreign states.

o Actions on bonds executed under any law of the United States (state courts have concurrent jurisdiction in these actions).

o Actions involving Indian allotments or land grants to the states.

o Actions involving injuries protected by specific federal laws (i.e., the Federal Employers Liability Act).

o All proceedings to condemn real estate for the use of the United States or its departments or agencies.

o Actions involving use or management of the public lands of the United States.

o Actions involving regulations by the United States of environmental quality.

CHAPTER V.

RULES AND PROCEDURES FOR FILING A CASE IN DISTRICT COURT

Whether you are a party to a lawsuit, a person representing yourself in a lawsuit, or an attorney representing a party in a lawsuit, you are subject to the rules of procedure for any court in which your case is filed. The federal courts are governed by the Federal Rules of Civil Procedure (Fed. R. Civ. P.) and the Federal Rules of Criminal Procedure (Fed. R. Cr. P.) as well as other rules of procedure regarding other areas such as evidence, appeals, etc. No matter what document or procedure you are involved with, you must follow the particular rule or rules that govern the matter.

In the United States District Court for the District of Idaho, all procedures are governed not only by the federal rules of procedure listed above but also by the Local Rules of Civil Procedure and the Local Rules of Criminal Procedure. The numbering system of the Local Rules coincides with the numbering system of the federal rules for easy reference. Copies of the federal rules can be found at the Idaho State Law Library, 450 West State Street, Boise, Idaho, or at the Ninth Circuit Law Library located in the Federal Building and U.S. Courthouse, 550 West Fort Street, Boise, Idaho.

Copies of the Local Rules for the District of Idaho can be obtained at any of the offices listed in Chapter I of this handbook. As a pro se litigant, you are responsible for becoming familiar with the court’s local rules and procedures.

A. PROCEDURES FOUND IN THE LOCAL RULES.

1.. GENERAL FORMAT OF PLEADINGS: Rule 5.1.
2. PROOF OF SERVICE: Rule 5.2
3. COPIES OF ORDERS AND ENVELOPES: Rule 5.4
4. NON-FILING OF DISCOVERY PLEADINGS: Rule 5.5
5. MOTION PRACTICE: Rule 7.1
6. REQUESTS AND ORDERS TO SHORTEN OR EXTEND TIME OR CONTINUE TRIAL DATES: Rule 7.3
7. STIPULATIONS: Rule 7.4
8. FORM OF A MOTION TO AMEND AND ITS SUPPORTING DOCUMENTATION: Rule 15.1
9. PRE-TRIAL PROCEDURES: Rule 16.1
10. INFANTS AND INCOMPETENT PERSONS: Rule 17.1
12. REQUIREMENTS OF DISCLOSURE OF FACTS: Rule 26.2
13. LIMITATION ON DEPOSITIONS: Rule 30.1
14. LIMITATION ON INTERROGATORIES: Rule 33.1
15. NOTATION OF “JURY DEMAND” IN THE PLEADING: Rule 38.1

Be Aware: This is NOT a complete list of the Local Rules for the District of Idaho. You will need to make yourself familiar with all of the Local Rules.

B. PROCEDURES ON FILING AND TIME LINES:

PLEADING DESCRIPTION RULE TIME
1. Civil Cover Sheet The document that must accompany the complaint and summons before filing can occur. (Form 1.) LR5.1(d) Initial filing.
2. Complaint Sets out the parties, the controversy and the governing law, allegations, statements of facts, and demand for relief. LR 3.1
LR5.1(b)

FRCP 10

Initial filing.
3. Summons Issued by the Clerk at the time of filing the complaint, the summons is served on the defendant with a copy of the complaint. A Waiver of Service of Summons can also be served on the defendant with a copy of the complaint. (Forms Index: C.4 and C.5) The summons informs the defendant that they must answer the allegations in the complaint or judgment will be entered in favor of the plaintiff.
(Form 2.)

FRCP 4
LR 5.2

Issued with the seal of the Clerk.
4. Motions and proposed orders. To seek an order from the court on some particular matter during the pendency of a case. Either party may bring. LR 7.1
LR 5.4

FRCP 11 & 12

Motions are filed with the Clerk and proposed Orders are sent to the respective Judge’s office for review.
5. Response to motions. The other party is entitled to respond to a motion. FRCP 6
LR 7.1 (a)(2)

Within 14 days of when the motion was served.
6. Proof of Service Requirement. Whenever a document is filed with the court, there must be a proof of service certificate included, which certifies that a copy of the document was sent to the other party. LR 5.2 Attached to the document served and filed with the Clerk.
7. Copies of Pleadings When motions and stipulations are filed, you are required to include copies of the proposed order and stamped, addressed envelopes for each of the parties to be served. LR 5.4 Received by the Clerk and forwarded to the Judge for review.
8. Discovery Initial disclosures, disclosure of expert testimony, notices of depositions, depositions, interrogatories, requests for documents, requests for admission, and answers and responses thereto shall be served upon other counsel and parties but shall NOT be filed with the court unless on order of the court or for use in the proceeding. LR 5.5
LR 26.2

Documents are exchanged between the parties prior to certain deadlines.
9. Pretrial Procedures All rules governing all Pretrial requirements and hearings are set out in this rule. LR16.1
C. FORMS INDEX

— Forms to be used by Pro Se Litigants:

1. CIVIL COVER SHEET

2. SUMMONS IN A CIVIL ACTION

3. SUBPOENA IN A CIVIL ACTION

4. SCHEDULING CONFERENCE FORM/LITIGATION PLAN INSTRUCTIONS

(When case is assigned to Article III Judge.)

a. Scheduling Conference Form/Litigation Plan Instructions

b. Notice of Availability of the Magistrate Judge to Exercise Civil Jurisdiction and Appeal Option

c. Waiver of Service

d. Notice of Lawsuit and Request for Waiver of Service of Summons

e. Waiver of Service of Summons

5. NOTICE OF ASSIGNMENT TO MAGISTRATE JUDGE

a. General Order No. 98

b. Scheduling Conference Form/Litigation Plan Instructions

c. Scheduling Conference Form/Litigation Plan

d. Notice of Lawsuit and Request for Waiver of Service of Summons

e. Waiver of Service of Summons

6. INSTRUCTIONS FOR FILING A COMPLAINT UNDER THE CIVIL RIGHTS ACT, 2 U.S.C. SECTION 1983

7. CERTIFICATE OF SERVICE BY MAIL

— Forms to be used by Prisoner Pro Se Litigants:

8. APPLICATION TO PROCEED IN FORMA PAUPERIS, SUPPORTING DOCUMENTATION AND ORDER

9. INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. SECTION 1983

10. PETITION UNDER 28 U.S.C. SECTION 2255 FOR WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY

11. PETITION UNDER 28 U.S.C. SECTION 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

CHAPTER VI

TRIAL PREPARATION

The Local Rules of the District of Idaho cover all phases of trial preparation from the pretrial conference to the satisfaction of judgment. The following information is not meant to be all inclusive and you should always consult the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the District of Idaho to find out what the court requires of all parties when filing suit and participating in trial. Local Rule 16.1 sets out those pretrial requirements that all parties should be aware of. At the time of filing the initial complaint, parties must request a jury trial or court trial.

A. Pretrial Conference and Order

Prior to the actual trial, a pretrial conference is usually held between the trial judge and counsel to determine if all discovery has been completed, what exhibits and witnesses each side might use during the trial, the approximate length of time that will be necessary for the trial, and what ground rules the judge will require before, during, and after the trial. After the conference, a pretrial order is usually prepared which sets out the above.

B. The Trial — The Role of the Judge and Jury

A trial is defined as “a judicial examination of issues between parties to an action.” The parties each get the opportunity to present their side of the case, and the judge and jury (if the trial is a jury trial) are responsible for entering a verdict and judgment based on the evidence and arguments presented. It is the judge’s duty to see that only proper evidence and arguments are presented. In a jury trial, he also instructs the jury which will be called on to make decisions regarding those matters at issue and then a judgment is entered based on the verdict reached by the jury. Local Rule 58.1.

If the parties have not requested a trial by jury, Local Rule 38.1, the judge becomes the trier of law (the judge) and the trier of fact (the jury). The judge then enters a Findings of Fact and Conclusions of Law, sometimes prepared by the prevailing party, based on the evidence and arguments presented and then a judgment is entered based on those findings of fact and conclusions of law.

C. Selection of the Jury

A jury trial begins with the judge choosing prospective jurors to be called for voir dire (examination). Local Rule 47.1. The jury box shall be filled before examination on voir dire and the Court will examine the jurors as to their qualifications. Not less than five (5) days before trial, the parties are to submit written requests for voir dire questions. Unless otherwise ordered, six (6) jurors plus a number of jurors equal to the total number of preemptory challenges which are allowed by law shall be called to complete the initial panel. Local Rule 48.1. After voir dire of all prospective jurors, a jury of six (6) is named and instructed by the judge regarding the issues they will be deciding. Local Rule 51.1.

Peremptory challenges: Each party has been given number of peremptory challenges established by law which enable the parties to reject prospective jurors without cause. This decision is based on subjective considerations of the parties when they feel a prospective juror would be detrimental to their side of this case.

Challenge for Cause: Either the plaintiff or defendant may challenge a prospective juror for cause when the prospective juror lacks a qualification required by law, is not impartial, is related to either of the parties, or will not accept the law as given to him by the court or other reasons approved by the court..

D. Opening Statements

After the jury is empanelled, each side may present an opening statement. Local Rule 39.1. The plaintiff has the burden of proving that plaintiff was wronged and suffered damages from such wrong and that the defendant caused such damages; the plaintiff is therefore allowed to present his statement first. This may be followed by a statement by the defendant.

E. Testimony of Witnesses

After opening statements are given, testimony of witnesses and documents are presented by each side, plaintiff side to begin. Local Rule 43.1. Cross-examination is conducted by the other side after the initial examination. If after a party has cross-examined a witness, the other side has the opportunity to redirect examination in order to requisition the witness on the points covered by the cross-examination.

If a witness testifies to one fact and a statement or document in the files shows that testimony to be contradicted, the document can then be used to question the witness on the accuracy of the witness’s statements. If the evidence produced shows that the witness’s testimony is false, the witness is considered impeached upon cross-examination.

F. Motions During the Course of the Trial

Before the closing arguments and up until the time the case is sent to the jury for deliberation, certain motions may be made during the course of the trial.

1. Motion in Limine: This motion is made prior to the jury selection and it requests that the judge not allowed certain facts to be admitted into evidence–such as insurance policies, subsequent marriages, criminal records, and other matters which are either not relevant to the particular case involved or which might influence the jury unfairly.

2. Motion for Instructed or Directed Verdict: This motion is usually made by the defendant at the close of evidence presented by the plaintiff’s side and is based on the premise that the plaintiff has failed to prove his case. If it is granted, the court instructs the jury to render a verdict for the defendant and against the plaintiff, and the trial is concluded in the defendant’s favor. If the court denies the motion, the trial continues with presentation of the defendant’s side.

3. Motion for Mistrial: Either party can move for a mistrial if, for example, during the course of the trial certain matters which are not admissible such as those mentioned in a motion for limine are presented by any witness either purposely or unintentionally in the presence of the jury. If the jury grants the motion for mistrial, the trial is immediately ended and the jury is dismissed.

4. Objections: During the examination of a witness, one side may “object” to the questioning or testimony of a witness or presentation of evidence if the attorney feels the testimony or evidence about to be given should be excluded. If the objection is sustained by the judge, that particular testimony or evidence is excluded. If the objection is overruled by the judge, the testimony or evidence may be given. A ruling on an objection may be the basis for appeal; however, in order to preserve the right to appeal, a party must ask the court recorder that that portion of the trial–the question/evidence, the objection, and the ruling– be transcribed in order to preserve the record for later appeal.

G. Rebuttal Testimony

After each side has presented its evidence, the plaintiff may be allowed to present some rebuttal testimony.

H. Closing Arguments

Closing arguments to the jury set out the facts that each side has presented and the reasons why the jury should find in favor of the client. Time limits are sometimes set by the court for closing arguments, and each side must adhere to the specified time. The plaintiff presents closing argument first and may present rebuttal to defendant’s closing argument. Local Rule 39.1.

I. Charge to the Jury

After each side presents testimony and evidence, the jury delivers his charge to the jury, usually in the form of written instructions. Each side may present proposed written instructions to the judge for consideration. After the judge has considered all proposed instructions, the jury is given each instruction which sets forth the jury’s responsibility to decide the facts in light of the applicable rules of law. The jury then returns a verdict granting favor to the plaintiff or defendant and assesses damages to be awarded, if any.

J. Mistrial

If a jury is unable to reach a verdict, in which case the judge declares a mistrial, the case must be tried again before a new jury. A jury which cannot reach a verdict is usually referred to as a hung jury.

K. Preparation of Judgment

Following the entry of the jury’s verdict, either side may give notice of its intention to appeal. The judgment is prepared by the prevailing side and presented to the court for entry. These post-trial motions usually set out why the jury’s verdict should be disregarded or why the judgment submitted by the other side should be more in keeping with the jury’s verdict. Local Rule 58.1.

L. Costs

If the jury or the judge awarded costs to the prevailing party, it is necessary to prepare a bill of costs incurred in the suit for the approval of the court. Costs are specified by Local Rule 54.1 as to what is allowable, and only those costs listed as allowable may be recovered by the prevailing party. Within fourteen (14) days after entry of judgment, under which the costs may be claimed, the prevailing party may serve and file a cost bill requesting taxation of costs itemized thereon.

Claims for attorney fees will not be treated as routine items of costs. Attorney fees will only be allowed upon an order of a judge of the court after such fact finding process as the judge shall order. Local Rule 54.3.

M. Satisfaction of Judgment

Whenever the amount directed to be paid by any judgment or order, together with interest (if interest accrues) and the clerk’s statutory charges, shall be paid into court by payment to the clerk, the clerk shall enter satisfaction of said judgment or order. The court will enter satisfaction of any judgment upon receipt of an acknowledgment from the prevailing party that all awards have been satisfied. Local Rule 58.2.

CHAPTER VII

LEGAL RESEARCH — AN OVERVIEW

It is not the purpose of this chapter to teach the pro se litigant legal research and writing nor is it our goal to sort out the complexities of applying the law, whether it be statutory or case law, to the facts of a particular case. The law prohibits personnel in the Clerk’s office from providing information regarding the application of the law to the facts of any case. The intention here is to provide information that is basic to a law library to be used as a guideline.

Just as there are certain standards of procedure for filing documents with the Clerk’s office, there are certain standards for citing authority when applying the law to the facts of a certain case. The most common source of citation standards is A Uniform System of Citation, Fifteenth Edition, published and distributed by The Harvard Law Review Association, Cambridge, Massachusetts. It is more commonly referred to as “The Bluebook” and sometimes as the “The Harvard Citator.” All of the information required for proper citation format can be found in this one text.

Authority is the information used to convince a court how to apply the law to the facts of a case. Legal authority is divided into two classes — primary and secondary. There are two sources of primary authority: (1) constitutions, codes, statutes, and ordinances; and (2) court decisions, preferably from the same jurisdiction where the case is filed. Secondary authority, which is not cited except in certain circumstances, is found in legal encyclopedias, legal texts, treatises, law review articles, and court cases in other jurisdictions.

– Primary authority is the most accepted form of authority cited and should be used before any other authority.

1. Constitutions, codes, statutes, and ordinances are the written laws of either the United States, the individual states, counties, and municipalities. These laws are enacted by the United States Congress, state legislatures, commissioners, and city councils.

2. When a particular case is decided, it becomes “precedent” which means that it becomes an example or authority for an identical or similar case or a similar question of law. Court decisions are the basis for the system of stare decisis. These decisions are published in what is called the National Reporter System which covers cases decided by the United States Supreme Court down to the individual state district courts. These reporters each have their own “digest” system which serves as an index by subject on points of law. There are many reporters in this system and they can be found in most law libraries.

– Secondary authority is used to obtain a broad view of the area of law and also as a finding tool for primary authority. Secondary authority is not cited to the court unless there is no other authority available.

1. Legal encyclopedias contain topics which are arranged alphabetically and are substantiated by supporting authorities.

2. Treatises are texts written about a certain topic of law by an expert in the field.

3. Law review articles are published by most accredited law schools and are sometimes a broad diagnosis of a particular area.

4. The Index to Legal Periodicals provides the only book reviews in the law and also provides case comments, which cases are listed in the “Table of Cases.”

5. American Law Reports Annotated (A.L.R.) is a collection of cases on single narrow issues. You must be aware that A.L.R. must be constantly updated.

6. Restatements are publications compiled from statutes and decisions which tell what the law is in a particular field.

7. Shepard’s Citations is a large set of law books which provide a means by which any reported case (cited decision) may be checked to see when and how another court (the citing decision) has cited the first decision. All cases must be checked to make sure another court has not reversed or overruled your cited decision.

Some basic rules of legal research are as follows:

1. Give priority to cases from your own jurisdiction.

2. Search for the most recent ruling on a subject matter.

3. Check the pocket part in the back of almost all law books. The pocket part is the most frequently used device for updating law books.

4. Pay attention to dates on books, i.e., copyright date and date of pocket parts.

5. Be aware of “2d” and “3d” citations. They distinguish one series from another.

6. All legal citations are written with the volume number first, an abbreviation of the title, and the page number, e.g., 152 P.2d 967 or 144 A.L.R. 422.

7. Shepardizing your citations can save a lot of embarrassment later on.

As state above, the above information is not meant to be a complete or comprehensive guide to the law library or to legal research and writing.