UBA. Unidad 4. PROCESAL CIVIL LECTOCOMPRENSIÓN
UBA. Unidad 4. PROCESAL CIVIL LECTOCOMPRENSIÓN
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ÍNDICE DE CONTENIDOS
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Texto 1: The Basic Steps in a Civil Lawsuit: Civil Law
Process
Fuente: http://www.shestokas.com/general-law/the-basic-steps-in-a-civil-lawsuit-civil-law-process/
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as an “answer”. The answer addresses the facts and the legal claims in
the complaint. The answer tells the court which facts in the complaint
the defendant agrees with, and those with which he disagrees.
Motions in the Early Stages
Once the complaint and answer have been filed with the court,
attorneys for both sides consider proper motions. A motion is a request
to the court to issue an order. The defense may file a motion to dismiss,
indicating the complaint does not contain facts making the defendant
liable to the plaintiff. A defendant may file a motion to dismiss before
his answer. The plaintiff may file a motion for summary judgment,
which says the parties do not disagree about the facts of the case and
that those facts make the defendant liable to the plaintiff.
If a court grants either of these early motions, the lawsuit may end. This
is why motions to dismiss or for summary judgment are usually the
first parts of a lawsuit. If these motions are denied (or not filed as
inappropriate), then the lawsuit proceeds.
Discovery and Pre-trial
The next part of the process is discovery. During discovery, the parties
exchange information and documents related to the claim in the
complaint and defenses asserted in the answer. During discovery,
depositions may be conducted. A deposition is testimony given under
oath by people with information related to the lawsuit recorded by a
court reporter.
As discovery proceeds, the parties have pre-trial conferences with the
judge. The parties advise the judge of discovery progress and in some
situations discuss possible settlements. The judge often aids in
negotiations and sets schedules for completion of discovery.
During the pre-trial phase, the lawyers may request the judge to bar
specific evidence, witnesses or arguments as legally improper. The judge
grants or denies the motions. Upon completion of discovery, decisions
on pre-trial motions and failure to reach a settlement the matter is
ready to go to trial.
Trial and Judgment
At the trial, the plaintiff presents evidence first to a judge either in a
bench trial or a group of citizens in a jury. After the plaintiff presents
evidence, the defendant has an opportunity to present the defense side
of the case. The plaintiff has the burden of proving his case by a
preponderance of the evidence. This means that it is more likely than
not, that the claims of the plaintiff are true. This standard of evidence is
much lower than the criminal standard of beyond a reasonable doubt.
Both sides present their cases, and then the judge or jury decides. If the
judge or jury finds against the plaintiff, the case is over. The judge
enters a judgment in favor of the defendant releasing the defendant
from liability for the plaintiff’s claims.
If the judge or jury finds for the plaintiff, the defendant is found to be
liable and judgment is entered for the plaintiff. The court then awards
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damages (money) and/or orders the defendant perform a specific act.
This order concludes the trial process and is a judgment in favor of the
plaintiff.
Appeals
The losing party may file an appeal if they believe the outcome was
incorrect legally. An appellate court may dismiss the appeal, hear and
affirm the judgment, reverse it, or send it back to the trial court with
instructions to correct legal errors. Many lawsuits go between the
appellate court and trial court multiple times before final resolution.
Enforcement
When a judgment becomes final in favor of the defendant, the plaintiff
may not file suit on the same basis in the future. If the ruling favors the
plaintiff, the defendant must observe all the terms of the judgment.
Failure of the defendant to obey the judgment places the defendant in
contempt of court and brings the danger of prosecution and other
penalties for that contempt. Additionally, a plaintiff with a judgment
may seek to enforce it by obtaining a court order to seize the property of
the defendant to satisfy the defendant’s debt. A final judgement against
a defendant can be collected even if the defendant has moved to another
state. This is due to the Constitution’s “Full Faith and Credit Clause”.
Twists and Turns
The above outlines the basics of how a civil lawsuit proceeds. There can
be many twists and turns along the way, with the attorneys filing many
different motions. There are time deadlines and extensions. The
process is extremely important. A plaintiff or defendant can be
completely right on the facts but fail to follow the process and lose the
case. While a party to a lawsuit should have an understanding of the
basic process, each area of law has its own quirks. The rules for a
breach of contract, intentional torts, negligent torts, family law, or
malpractice differ from each other. An attorney should be familiar with
not only the general process, but also the specific area of law.
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Texto 2: CIVIL PROCESS IN GRAPHS
GRÁFICO 1
Fuente:
https://www.google.com.ar/search?q=trial+flowchart&rlz=1C1CHVN_esAR571AR572&espv=2&biw=1280&bih=666&tb
m=isch&tbo=u&source=univ&sa=X
GRÁFICO 2
Fuente :http://academic.regis.edu/jriley/403%20Civil%20Actions.gif
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Texto 3: COMMON INTERPRETATION SEVENTH
AMENDMENT
fuente: https://constitutioncenter.org/interactive-constitution/amendments/amendment-vii
Common Interpretation
To many Americans, jury trials seem to be the normal way of deciding civil cases.
Television programs and movies show exciting scenes of juries deciding important non-
criminal disputes involving individuals, government officials, and companies.
The reality is different. Juries decide less than one percent of the civil cases that are
filed in court. This lack of jury trials may seem strange, as the Seventh Amendment
guarantees the right to jury trial in certain civil cases.
There are two main types of court systems in the United States: federal and state. The
Seventh Amendment requires civil jury trials only in federal courts. This Amendment is
unusual. The U.S. Supreme Court has required states to protect almost every other right
in the Bill of Rights, such as the right to criminal jury trial, but the Court has not
required states to hold civil jury trials. Minneapolis & St. Louis Railroad Co. v.
Bombolis (1916). Nearly all of the states, however, have rights to civil jury trial in
certain cases in their state constitutions.
The United States is almost the only nation that continues to require civil jury trials.
Civil juries similar to those in the United States are not part of the legal traditions of the
Continent of Europe or the legal systems derived from those traditions, including in
Latin America and Asia. Even in England and its former colonies of Canada, Australia,
and New Zealand, civil jury trial has virtually been abolished.
Why did some persons at the founding of the United States think that civil jury trial was
so important that it should be guaranteed in the federal and state constitutions? To
understand the Seventh Amendment, we need to go back into history and the English
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legal system. Much of the legal system in the United States, and especially the
provisions of the Bill of Rights, are based on America’s English roots.
The civil jury was an old English institution, older even than the criminal jury. Since the
middle ages, the English had used juries of persons not trained in law to decide certain
civil cases. There were always some English courts that did not use juries. In these
courts, judges decided cases. The most important of these juryless courts was Chancery,
also known as Equity.
In the eighteenth century, as the desire of American colonists for independence from
Britain grew, the jury in America became more important. The British government
claimed that Americans had to obey laws enacted by the British Parliament, in which
Americans had no representation. Americans did participate on colonial juries, and
these juries became a way for Americans to govern themselves. As tensions with Britain
rose, juries nullified (refused to follow) hated British laws, especially laws for collecting
taxes. Because colonial juries had been valuable in the struggle against Britain,
Americans put rights to civil and criminal jury trial into their new state constitutions
immediately after declaring independence in 1776.
By the time the federal Constitutional Convention met in Philadelphia in 1787, opinions
about the civil jury were more mixed. Because state civil juries had been sympathetic to
debtors, Federalists in particular feared nullification of the laws of contract. For this and
other reasons, the federal Constitution that was presented to the states for ratification did
not include a right to civil jury trial.
In the state ratifying conventions for the federal Constitution, Anti-Federalists strongly
protested the lack of a right to civil jury trial. They expressed concerns about debtors,
and also argued that juries could protect litigants from bad laws passed by the
legislature, tyrannical actions by the executive, and corrupt or biased judges. Fearing
that a second constitutional convention might be called if a right to civil jury trial were
not included in a federal Bill of Rights, James Madison drafted what became the
Seventh Amendment.
The Seventh Amendment has two clauses. The first, known as the Preservation Clause,
provides: “In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved.” This clause sets out the types of
cases juries are required to decide. The second clause, known as the Re-examination
Clause, declares: “no fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the common law.” This clause prevents
federal judges from overturning jury verdicts in certain ways.
The term “common law,” used twice in the Amendment, can be confusing. Today, the
term “common law” often means law declared by judges, as opposed to law enacted by
legislatures. In the Seventh Amendment, the term “common law” means the law and
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procedure of the courts that used juries, as opposed to Equity and other courts that did
not use juries.
This interpretation is known as the historical test. Generally, the types of cases that
juries decide and the ways that judges can review their verdicts are supposed to
resemble the practice in English common law courts in 1791. The Supreme Court has
stated that the Amendment preserves the “substance” of the right, not “mere matters of
form or procedure.” Baltimore & Carolina Line, Inc. v. Redman (1935). Departures
from the English practice in 1791 have been permitted, including using six jurors
instead of twelve.Colgrove v. Battin (1973).
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Texto 4: PROS AND CONS OF HAVING A JURY SYSTEM
Fuente: http://thecanadianjurysystem.weebly.com/pros--cons.html
Fuente: http://es.slideshare.net/yunudeni/common-law-vs-civil-law-
1435418?next_slideshow=1
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Texto 5: WHO’S SUING WHO IN THE MOBILE PHONES MARKET?
http://www.cultofmac.com/61882/handy-mobile-lawsuit-flow-chart-graphic/
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Take a look at the litigious melee going on among companies trying to
squeeze profits out of the mobile communications landscape. It’s a wonder
we have phones and operating systems at all, isn’t it?
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UNIDAD 4:
MATERIAL ADICIONAL
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APÉNDICE 1: MAGNA CARTA MUSE AND MENTOR, Trial by Jury
https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/trial-by-jury.html
Former U.S. President Benjamin Harrison served as plaintiff’s counsel in the 1895 trial over the estate of James
Morrison of Richmond, Indiana. The trial, which lasted from January 2 until May 10, 1895,
was the longest jury trial in the United States up to that time.
Prints and Photographs Division, Library of Congress
The right to a trial by jury, one of the most time-honored inheritances from
Magna Carta in United States law, refers to the guarantee that courts will
depend on a body of citizens to render judgments in most civil and criminal
cases. The origins of the jury trial precede the creation of Magna Carta.
However, Chapter 39 of King John’s Magna Carta includes the guarantee
that no free man may suffer punishment without “the lawful judgment of
his peers.” By this measure the barons sought to force the king to delegate
part of his judicial authority to men who were peers of the individual on
trial. While Magna Carta did not institute the jury system in the modern
sense, its political intent—to prevent the king’s domination of the courts—
inspired later generations to view the right to a trial by jury as one of the
basic safeguards of freedom from arbitrary government.
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APÉNDICE 2: CHART: CIVIL PROCESS
Fuente: http://jec.unm.edu/manuals-resources/case-flow-charts/magistrate-court/civil-flow-chart/image_preview
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