Civil Procedure 民事诉讼程序.docx

Civil Procedure民事诉讼程序Introduction to Civil ProcedurePart One: The Course of Civil ProcedureThe basic first year civil procedure course is designed to teach how lawyers choose a proper court and how they frame and present their cases throughout the proceedings until a judgment has been reached and all available appeals have been pursued. The impact of judgments on future litigation also may be explored . Thus , the primary focus in this course is on the methods and tools available to the litigator . This study requires an inquiry into judicially developed doctrines, as well as various rules and statutes governing the civil courts. At time it will produce questions that are theoretical or constitutional; at other times issues of careful or strict rule interpretation will be paramount. Throughout , it is important to keep in mind the purpose underlying the development of the civil procedure rules and doctrines -to provide a just, efficient and economical means by which persons can resolve their disputes. Not always will this purpose be met and , as we will see, some of the existing procedures have been used by attorneys to thwart this goal . Nonetheless , the desire to achieve justice, efficiency , and economy ic our civil disputeWhat did Prof. Keeton say about the adversary trialsystem?Prof. Keeton say about the adversary trial was a “ parties fighting " , a "competition of inconsistent versions of facts and theories of law4. The adversary trial system is not a scientific method of fact finding , is it ?No, it isn' t5. What are the distinctive characteristics of the adversary trial system?First , cases are brought to the court by the parties through their legal representatives -lawyers. Second , the lawyers , guided by a judge, control the content and flow fo the evidence . Third , the litigation process is two-sided.6. Why is the trial judge in an American jury case only a sort of umpire?Because the judge only applies the procedural rules to the lawyers and explains the substantive principles of law to the jurors , while the factual issues in the case are decided by the jurors alone.7. What is bench trial ?It is judge trial , without jury.ioWhat is the order of presentation in a civil trial ?The order is as follows: plaintiff 's counsel followed by defendant5 s attorney each make opening statements , explaining what they intend to prove. The plaintiff 's witness and evidence are examined and cross -examines. Then the defendant， s witness and evidence are introduced , with similar rights of examination and cross -examination. The plaintiff and defendant then may be al lowed to introduce rebuttal evidence . After all the evidence has been submitted , each side makes closing arguments summarizing the evidence supporting their respective positions . Plaintiff again typically summarize first , but has a right of rebuttal after the defendant' s closing remarks have been made.8. Why should hearsay evidence be excluded ?Because hearsay is deemed inherently unreliable because there is no opportunity to cross-examine the actual person who made the statement.P 281 courtroom EnglishThe court is in session now.Order in the courtroom.The courtroom order!The court is in recess.iiWe will be in recess for half an hour.The court will resume in ten minuteLadies and gentlemen of the jury , at this time I am making to you a so-called opening statement:Please call your first witness , Mr. Prosecutor.Your Honor, we call as our first witness Ronal SmithYour Honor ,we call John Petorson as our next witness .Object , Your Honor, irrelevantWe object , Your Honor. That is a leading (hearsay, etc.)The objection is sustained and the witness will not answer the question.Sustained, Ladies and gentlemen of the jury , disregard the question completely.The objection is overru1ed and witness may answer the questionr 11 overrule your objectionOverruled , counsel.Your Honor, we now offer this into evidence , as Defendant Exhibit Number 5.Hearing no objection , it will be received as DefendantExhibit Number 5.Please read my last question back ,court reporter12No further questions at this time, Your HonorThank you so much, Your witness.The prosecution rests.The defense rests its case.I now ask that the court reporter mark this for identification, if I remember correctly, this would be Prosecution Exhibit 10.Yes , this is going to be Prosecution' s 10 (By court reporter)Your Honor, may we now hand the exhibit, Prosecution， s Number10 , to the jurors for their examination ?Object , Your Honor.Overruled. Your may proceed, Mr. ProsecutorI call to the stand Dr. ProsecutorSir, you said a minute ago, during your direct examination by defense counsel, that.Mr. Smith , you gave us on your direct examination just now a detailed description of a person.Now , I draw your attention to the evening of Apri 1 1, 1994 , Mr. Smith.Object , Your Honor . What re1evance does this have ?Oh, r 11 withdraw the question .13I have no further questions of this witness at this time, your Honor.I swear , under the penalty of perjury, to tell the truth, (by witness )I swear to tell the truth, nothing but the truth. Please help me , my God. (by witness )I swear to well the truly try the case, without any prejudice, (by juror).I swear to be justice and fair, (by juror)I swear , upon the Bible , to render an impartial verdict upon the law and the evidence . (by juror )P283. Preparation for a trialStep I. Knowing the caseThe students need to become familiar with every fact, inference , and aspect of the case of Simpson( see “Mock Trial” in Lesson Twenty Two ). This knowledge will be necessary to analyze and select the theories of the case, establish the overall themes, plan the trial presentation , and determine which facts need to be proved in the case and presented in the opening statement.Step II. Developing issues and themesThe issues and central theme of a case shou 1 d be decided,14 thought out , and organized before the trial begins.(1) the Issues . The issues are the key or pivotal questions of fact raised by the contentions of the parties. After deciding what issues exists, the attorney shou1d select the issues to be stressed to the jury. The early presentation of these issues may provide a framework for the trial that focuses attention on these issues and away from the opponent' s case.(2) The Themes and Theories of the Case. The themes of a case are the major concepts central to the case. The theories of a case consist of the legal and factual theories that support the themes . The opening statement is the time to present the themes and theories in a comprehensive and complete way. The jury may have some idea about the case based upon the judge' s preliminary instructions , statements , and questions during jury selection. In opening statement , the attorney explains to the jury how the various parts of the trial will fit together.The attorney shou1d select words which reflect and reinforce the themes of the case. These theme words shou 1 d be used during the opening statement as the attorney describes the story of the events . Theme words shou 1 d be repetitively used throughout the trial to reinforce the theories and issues of the case.15Step III . Citing authoritiesBefore going to the courtroom, the attorney also needs to become familiar with the legal authorities governing the case, especially the binding precedent. Therefore, a brief introduction to case citations is necessary.A typical citation to a state court decision will look like this :People v. Miller, 238 N. E. 2d 407 (S. Ct. Ill .1968 ).“People and “Miller" are the names of the parties to this reported criminal case: the People , represented by the state' s attorney , are prosecuting the defendant, Miller . The intervening "v” . stands for versus, which , translated from the Latin, simple means “against "People against Miller . The "N. E. ” refers to the geographical region covered by the reporter series: "2d " indicates that this system of regional judicial reports has gone into a second series of volumes , the preceding series having been denominated simply "N.E.”Other phases fo the National Reporter System reprint decisions from the Pacific region (Pac . And P. 2d ), Northwestern (N. W. and N. W. 2d ), Southwestern (S. W and S. W. 2d ) , Atlantic (Atl. And A. 2d). Southeastern (S. E . and S. E. 2d ) , and Southern (So . and So. 2d). Separate series are published for New York (N.Y. S. and N.Y.S. 2d )and California16(Cal. Rptr.)The number 407 in our citation to the case of People v. Miller refers to the page of vo 1 ume 238 of the N. E. 2d series on which the opinion in that case begins . Within the parentheses in the citation to People v. Miller are the name of the court handing down the decision -here, the Supreme Court of Illinois -and the year in which decision was announced , 1968.Citations to federal cases are similar in appearance. United States v. Harris, 403 US。573 了(1971 ), refers to a decision in vo1ume 403 of the official series that reports decisions of the Supreme Court of the United States .Step IV. Anticipating opposition' s positionsAn attorney needs to review the case from the perspective of the opposition and take such matters into account when preparing an opening statement . It is necessary to anticipate the other side' s position in an attempt to defuse the opposition. The more an attorney knows about the theories , arguments, and positions of the opponent the more complete the opening preparation will beStep V. fritting an outlineThe material for an opening statement needs to be organized17 into an outline format. The outline should included the introduction, the body, and the conclusion . The use of an outline helps organize the facts and theory of the case into an easily usable and readily accessible format. As the attorney prepares other aspects of the trial , this outline may be modified or altered and needs remain flexible.Some attorneys will find it advantageous to write or dictate a complete opening statement. This draft may then be reviewed and improved . With this format , the attorney will know that the final script of the opening statement will contain everything that needs to be prepared . The drawback of using a script during an opening statement is the temptation to read the opening statement to the jury. Reading a script of the opening statement will appear dry and impersonal to the jury. A better approach for the attorney who wishes to use a script is to prepare a key word outline of the script . After becoming completely familiar with the script , the attorney shou 1 d be able to present the opening statement using only the key word outline . When notes or outline are used, they shou 1 d be used in a candid, forthright fashion.Step VI. Practicing and rehearsingAfter the attorney has prepared the outline or script ,18 practice and rehearsal are necessary to be adequately prepared for the presentation at trial . The attorney who practices the opening statement several times prior to trial will find the time well spent. The attorney may want to think through the opening statement silently and then practice verbally concentrating on its content. As the content of the opening statements is mastered , the attorney can work on stylistic improvements. After this preparation the attorney shou1d continue practicing and rehearsing videotape for later review and critique. The attorney shou1d practice presenting the opening statement until it can be done without referring to notes.4. Examples of jury instructions given by the trial judge 1. Basic Instruction Members of the JuryNow that you have heard all fo the evidence and the argument of counsel, it becomes my duty to give you the instructions fo the Court concerning the law applicable to this case.It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case.Regardless of any opinion you may have as to what the law19 resolution process underlies the way in which the courts apply and interpret the government rulesIn studying the procedures by which legal rights are vindicated, it also is important to remember that the Anglo-American judicial system is based on the adversary model . The judge sits solely to rule on disputed questions , as presented by the parties , and to apply sanctions when they are properly requested by a party. The 1 awyers shape the contours of the action. Issues not raised, objections no made , or points not challenged are , with very few exceptions , waived . The case moves forward only in response to the demands of the parties. While modern judges have tended to take a somewhat more active role in guiding litigation before them, it still remains true that the ultimate responsibility for each case rests with the litigants.Finally , it shou 1 d be noted that there is a very important aspect to framing litigation that typically is not taught in the basic civil procedure course: how to select a particular remedy as the one most likely to succeed or best suited to the needs of the client. That inquiry concerns matters such as whether injunctive relief or damages may be sought or whether some form of restitutionary relief might be most appropriate. is or ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law other than that given in the instructions of the Court, just as it would also be a violation of your sworn duty, as judges of the facts , to base a verdict upon anything other than the evidence in the caseAs stated earlier , it is your duty to determine the facts, and in so doing you must consider only the evidences I have admitted in the case. The term “ evidence “ includes the sworn testimony of the witnesses and the exhibits admitted in the recordBurden of ProofThe burden is on the plaintiff in a civi1 actions such as this to prove every essential element of his claims by a ipreponderance of the evidence" A preponderance of the evidence means such evidence as , when considered and compared with that opposed to it, has more convincing force and produces in your minds a belief that what is sought to be proved is more likely true than not true. In other words , to establish a claim by a 'preponderance of evidence “ merely means to prove that the claim is more likely than not so .All of the questions of the special verdict which you are to answer, except those relating to comparison of negligence20 and damages , are to be answered either “Yes” or “No” . The burden of proof as to any such question is upon the party or parties who contend that you shou 1 d answer the question “Yes” . Such burden is to satisfy or convince you, to a reasonable certainty , by the greater weight of the credible evidence ,