Trials and Appeals

V Congresso Internacional da ABRATES
Associação Brasileira de Tradutores e Intérpretes
Rio de Janeiro – Brasil
20 e 21 de setembro de 2014
Trials and Appeals
Luciana Carvalho – [email protected]
Introduction
Nesta palestra serão abordadas as características
jurídicas, textuais e culturais de duas fases
processuais:
 a do julgamento de primeira instância, por meio de
‘complaints’ (petições iniciais) e ‘answers’
(contestações), e
 a do julgamento recursal em segunda instância, por
meio da análise do processo de ‘appeal’ no sistema
americano comparativamente ao processo civil
brasileiro.
Hora: 14h00 às 15h30
Local: Sala E
2
Important facts about the U.S. Justice System
Since we are exploring a foreign legal system – the American Legal
System –, we should have some of its features in mind:
 There is no unified or uniform civil or criminal process in the United States
 The Federal System has a court process at the national level, which is
governed by the Federal Rules of Civil Procedure and by a number of
important constitutional protections and issues
 The States have their own rules concerning the legal process
 No two states have identical judicial systems
3
Part I
Civil Litigation
Introduction
This pack focuses on civil litigation in the
United States
We will focus on the features and norms that
govern civil procedure across the Federal
system because there is uniform
legislation on the matter (the FRCP)
5
Civil Litigation Defined
Civil litigation involves disputes between parties over any matter that is not governed by an
administrative body.
Civil litigation also differs from criminal litigation, which is governened by the Federal Rules
of Criminal Procedure, and also implicate a number of important constitutional
protections.
In civil litigation, the parties seek:
o money damages [perdas e danos]
o specific performance [prestação / execução da obrigação]
Lawyers specializing in litigation are called trial lawyers or litigators.
Since civil litigation is a very broad field involving an enormous range of disputes, lawyers
generally specialize in one or two areas of law (e.g. Personal Injury, Environmental Law,
Family Law, etc.)
Parties representing themselves ‘appear pro se’, that is, without a lawyer.
6
Who’s who in Civil Litigation?
3
Who are these people?
4
1
5
6
2
7
Who’s who in Civil Litigation?
English
Portuguese
plaintiff
defendant
judge
court
plaintiff’s attorney
defendant’s attorney
witness
juror
jury
court reporter
bailiff
oficial de justiça (aprox.)
A court attendant
entrusted with duties
such as the maintenance
of order in a courtroom
during a trial.
expert witness
8
Who’s who in Civil Litigation?
English
Words that collocate
with party.
Portuguese
third-party
opposing party
losing party
winning/prevailing party
indispensible party
necessary party
proper party
aggrieved / injured party
interested party
guilty party
innocent party
intervening party / intervenor
9
Issues to consider before Litigating
Jurisdiction and Venue
Timing
Rules of Civil Procedure
[Competência e Foro]
[Tempestividade]
[Lei de Processo Civil]
• The defendant may
challenge the plaintiff’s
choice of jurisdiction
• Jurisdiction refers to the
type of court which will have
authority to review the
dispute (e.g. federal or state
court?)
• Venue refers to the place in
which the case is brought
(e.g which federal court?
• The time by which certain
actions and events must
take place are very
important in federal civil
litigation
• Objections not raised by a
particular time in the
proceeding are deemed to
have been waived
• The Federal Rules of Civil
Procedure set forth the
timetable by which certain
events must take place
• Dates established by court
order also must be
respected
• In the US, the Rules of Civil
Procedure are also defined
by case law, so it is very
important counsel
researches such case law
carefully
• The Federal Rules of Civil
Procedure (FRCP) is the
most important body of
rules in civil litigation at the
national level
• Other rules:
• The Federal Rules of
Evidence
• Local rules of the district
10
Aspects of Civil Litigation in short
These are the main stages of civil litigation in the American System. Below each stage, you
will find the highlights of each one.
Pleadings
Pretrial
discovery
Trial and
Judgment
•complaint
•evidence
•bench trial
•summonsing
•statements
•jury trial
•answer
•waiver of jury
trial
•jury picking
Appeal
Eforcement
•judgment
affirmed
•writ of
execution
•judgment
denied
•bank account
garnishment
•judgment
reversed
•liens
•judgment
vacated
•wage
garnishment
•judgment
remanded
11
Pleadings
Complaint
Summons /
Service
Answer /
Counterclaim
Reply
The pleadings are the consecutive statements, allegations, and counterallegations made by plaintiff and
defendant, or prosecutor and accused, in a legal proceeding. Therefore, they include:
1.
complaint (petição inicial)
2.
summons (citação)
3.
answer (contestação).
A civil action is commenced by filing a complaint with the court. (Rule 3, FRCP).
Next, the defendant is summoned. A summons is an order by the court clerk requiring a response by
defendant. Complaint and summons must be delivered – i.e. serviced – to other party or parties to
lawsuit.
Then, the defendant files an answer to respond to the complaint. The defendant may also file a
counterclaim (reconvenção)
In the case of a counterclaim, the other party has to file a reply (resposta à reconvenção).
12
Pre Trial Discovery
Discovery (fase de produção de provas) is the fact-gathering process
All parties participate
Discovery is carried out through:
Cultural
Note!
In the Brazilian System, this stage is
done before the court. In other words, it
is not pre-trial stage, and the judge
oversees the entire discovery phase.
1.
written interrogatories (depoimentos escritos)
2.
requests for production of documents and things (pedido de produção de documentos ou coisas)
3.
oral depositions (depoimentos orais)
4.
medical examination (perícia médica) upon motion, i.e. request to the court
5.
automatic disclosure (compartilhamento obrigatório de provas) required of certain basic
information and documents pertaining to the case (i.e. no request to the court needed)
In this stage, parties may also:
1.
reach a settlement (chegar a um acordo), since disovery helps the parties analyze the strength of
their case. The judge may be present or even schedule settlement
2.
waive their right to a jury trial (renunciar o direito a um julgamento pelo júri) or proceed to the
jury picking (escolha dos jurados) phase (or voir dire)
The goal of the voir dire is to
eliminate all members of the
panel who have an obvious
reason why they might not render
an impartial decision in the case.
13
Trial and Judgment
During trial, the parties present the evidence to the finder of fact (i.e. the judge or jury)
Trial starts with opening statements of plaintiff, followed by opening statements by defendant
Evidence includes: testimony, documentary evidence, illustrative evidence, etc.
The witnesses are subject to:
1. direct examination by the sponsoring party, and to cross-examination by opposing party
2. re-direct examination by party sponsoring the witness, and re-cross by the opposing party
Just as in the criminal procedure, trial ends with the closing arguments of counsel
When a trial is heard by a jury, it is called a jury trial, and a verdict is given
If the parties waive the right to a jury, the judge will be finder of fact in a bench trial.
The judge issues a ruling or passes judgment on the case
14
Appeal and Enforcement
The appeal system (sistema de recursos) and forms of enforcement (modalidades
de execução) of court decisions.
Pleadings
Pretrial
discovery
Trial and
Judgment
•complaint
•evidence
•bench trial
•summonsing
•statements
•jury trial
•answer
•waiver of jury
trial
•jury picking
Appeal
Eforcement
•judgment
affirmed
•writ of
execution
•judgment
denied
•bank account
garnishment
•judgment
reversed
•liens
•judgment
vacated
•wage
garnishment
•judgment
remanded
15
Part II
Complaints
Definition of Complaint
complaint (n.) 1. The initial pleading that starts a
civil action and states the basis for the court’s
jurisdiction, the basis for the plaintiff’s claim, and
the demand for relief. In some states, this
pleading is called a petition. 2. Criminal law. A
formal charge accusing a person of an offense.
Please note: The term brief can also be
used to refer to a complaint, but it is
most used to refer to an appeal
brief.
Fonte: Black’s Law Dictionary, 8th Edition.
brief (n.) 1. A written statement setting out the
legal contentions of a party in litigation,
especially on apeal; a document prepared by
counsel as the bais for arguing a case,
consisting of legal and factual arguments and
the authorities in support of them. 2. A lawyer’s
document that abstracts the pleadings and
facts to inform another lawyer or client about
the case.
17
Definition of Complaint
According to its definition, a
civil complaint must state:
a) the basis for the court’s
jurisdiction [fundamentação da
competência do órgão julgador]
b) the basis for the plaintiff’s
claim [causa de pedir]
c) the demand for relief [pedido]
18
Reading & Writing a Complaint (or briefs)
The complaint is one of the attorney’s most powerful tools.
A good complaint can be used, above all, to persuade the
court.
If the complaint does not persuade, it is unlikely the oral
argument [sustentação oral] will.
A good complaint shows understanding of:
–
–
–
–
–
audience (i.e. the court of competent jurisdiction)
purpose (i.e. the demand for relief)
facts of the case
law (case law & statutory law) [jurisprudência & legislação]
format
19
Steps to Writing (& Reading) a Complaint #1
In many common law jurisdictions, the courts establish standard forms to be
completed when filing a complaint.
In this pack, we are using the forms of the New York District Court, Southern District of
New York*, which is a Federal Court.
1.
Civil cover sheet: This document identifies the case to the court, and is required
to be submitted together with the complaint.
2.
Complaint: This is a general form for writing your complaint.
3.
Answer: This is a general form for writing an answer to a complaint. It also
includes the Affirmation of Service [Citação]
*These documents are also available in the online
classroom, just below the link to this pack.
20
Steps to Writing (& Reading) a Complaint #2
Second, you will find:
1. Names of the parties: plaintiff/defendant
2. Basis for jurisdiction: in the case of a District Court, the basis
usually involves federal laws (i.e. a lot of corporate, commerce,
and tax law, but also interstate matters)
3. Statement of claim [causa de pedir]
4. Injuries sustained [danos sofridos]
5. Relief [pedido]
21
Steps to Writing (& Reading) a Complaint #2
We will now go through the 5 items listed in the previous slide (and
repeated below) to give you an overview of the necessary
information and language functions you may come across under
each one of them.
1. Names
2. Basis for Jurisdiction
3. Statement of claim
4. Injuries sustained
5. Relief
22
2.1 Names
Use full names of the parties
The names usually appear one below the other –
plaintiff first, defendant, second – , and in between
the word against or vs.
For example:
John Doe
against
Jane Doe
Unlike what happens in Brazil, when the names of the parties first appear in the
complaint, they are not followed by the addresses. In the common law,
Cultural
addresses and contact information are provided in a specific field or even in a
Note!
separate sheet.
23
2.2 Basis for Jurisdiction
Rule 8(a) of the Federal Rules of Civil Procedure requires a plaintiff to plead the basis
for the court’s jurisdiction in his or her complaint.
In this section, you must provide statutory or case law-based information on why this
court is the court of competent jurisdiction in this case.
Language functions you may come across:
Cultural
Note!
This section is not
required to be
expressly mentioned in
the Brazilian system.
–
“Under § 14 of the Commercial Code...”
–
“According to the United States Constitution...”
–
“The basis for federal court jurisction lies in section...”
–
“Pursuant to Federal Rule of Civil Procedure 12(b)(1)...”
–
“Plaintiffs argue that this Court has federal question jurisdiction over its claim
under 28 U.S.C. §§ 1137 and 1331 and that Peacock v. Thomas is not applicable.”
–
“Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § §451, 1331...”
–
“This action is authorized and instituted pursuant to Section 7(b) of the
Employement Act of 1967, as amended, 29 U.S.C....”
24
2.3 Statement of Claim (1/2)
This section tells a story by briefly stating the facts of
the case.
It is usually written based on questions such as the
ones below:
– Where did the events giving rise to the claim occur?
– On what date?
Common law legal
– What were the facts involved?
Cultural professionals tend to
•
•
•
•
What happened to your client?
Who did what?
Was anyone else involved?
Who else saw what happened?
Note!
value objectivity and
clarity. Sometimes this
section has a
maximum number of
words set by the court.
25
2.3 Statement of Claim (2/2)
Language functions :
– “On July 24, 2007 the plaintiff...”
– “Since at least October, 2005, Defendant engaged in
unlawful employment practices at its Desoto,
Missouri facility in violation of Section 4(d) of the
ADEA, 29 U.S.C. § 623 (d). Defendant discharged
Yvonne Loskot from her position as Certified
Optician because of her age, 67.”
*http://walmart.3cdn.net/62697335d63
26
2.4 Injury Sustained
Describes the injuries sustained by client.
– Mentions the kind of damages and losses involved
– Mentions required measures the claimant had to
take
Language functions :
– “The effect of the practices complained of in
paragraph 7 above has been to deprive Yvonne
Loskot of equal employment opportunities and
otherwise adversely affect her status as an
employee because of her age*.”
*http://walmart.3cdn.net/62697335d63
a2599ae_clm6iigah.pdf
27
2.5 Relief (1/2)
States what client is asking the court do for claimant.
– Mentions the amount of monetary compensation required
– Mentions the basis of compensation
Language functions:
– “The plaintiff seeks to obtain a judgment the amount of
$210,000.00 against the defendant for the recovery of liquidated
damages, attorney’s fees and costs owed to plaintiffs.”
– “Claimant further requests an award granting Claimant such
other and further relief as the Court deems just and proper.”
Cultural
Note!
This last clause is called a “Catch all Clause” because, according
to US Federal Rules of Civil Procedure (Rule 54(c)) even if the
party has not demanded such relief in the party’s pleadings, the
final judgment shall grant the relief to which the party is entitled.
28
2.5 Relief (2/2) Example of complete ‘Prayer for
relief’ section
“Wherefore, the Commission respectfully requests that this Court:
A.
Grant a permanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or
participation with it, from engaging in the unlawful discharge of employees because of their age and any other employment
practice which discriminates on the basis of age against individuals 40 years of age and older.
B.
Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for
individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
C.
Grant a judgment requiring Defendant to pay appropriate back wages in an amount to be determined at trial, an equal sum as
liquidated damages, and prejudgment interest to Yvonne Loskot whose wages are being unlawfully withheld as a result of the
acts complained of in Paragraph 7 above.
D.
Order Defendant to make whole all individuals adversely affected by the unlawful practices described above, by providing the
affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful-place
reinstatement of Yvonne Loskot or front pay in lieu of reinstatement.
E.
Grant such further relief as the Court deems necessary and proper in the public interest.
F.
Award the Commission its costs of this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted, General Counsel”
http://walmart.3cdn.net/62697335d63a2599
29
Part III
Answers
Definition of Answer
answer(n.) 1. A defendant’s first pleading that
addresses the merits of the case, usually by
denying the plaintiff’s allegations. An answer
usually sets forth the defendant’s defenses and
counterclaims. 2. A person’s, especially a
witness’s response to a question posed.
Please note: The term answer can also
be used as a verb with several
different meanings.
Fonte: Black’s Law Dictionary, 8th Edition.
answer (v.) 1. To respond to a question, a
pleading , or a discovery request <the company
failed to answer the interrogatories within 30
days>. 2. To assume the liability of another <a
guarantor answers for another person’s debt>.
3. To pay (a debt or other liability) <she
promised to answer damages out of her own
estate>.
31
Common Responses to a Complaint
1. Motion to Dismiss (or Demurrer) [Exceção de inépcia da petição inicial]
A type of motion where the defendant asserts that a response is unnecessary due to a legal defect in the complaint.
2. Motion to Strike [Pedido de exclusão de provas ou declarações impróprias ou irrelevantes]
This motion is similar to a demurrer but is used to request the Court to strike (void) an answer due to a defect within it.
3. Motion to Quash [Pedido de anulação]
A request for the Court to quash (void) service of the summons and complaint. The motion is usually made on the
grounds that the litigant is not under the jurisdiction of the Court.
4. Answer [Contestação]
A response from the defendant setting forth the grounds of the defense to the allegations contained within the
complaint or the response from the plaintiff setting forth the grounds of the defense to the allegations contained
within the cross-complaint.
5. General Denial [Negativa geral, Defesa direta de mérito]
A response from the defendant denying all allegations contained within the complaint or the response from the
plaintiff denying all allegations within the cross-complaint.
If a defendant files any motion or demurrer, hearing date for that motion will be set prior to the trial process. Motions have a minimum 16 court day notice
period to allow for the opposing side to prepare for the hearing.
If the Defendant files an Answer or a General Denial the case must be set for trial.
32
Civil Litigation Breakdown
The Complaint, Answer and Reply jointly make the Pleadings.
Complaint
Answer
Pleadings
Reply
Discovery
Summary
Judgment
Pretrial/
Settlement
Conference
Trial
Persuasion
In between the steps indicated above, the parties usuall file motions
(requests) to the court.
Motions are used to:
• express the dissatisfaction by a party with regard to certain events
• ask for something to be done in order to provide relief (satisfaction)
33
Complaint v. Answer
Complaint
Answer
 Filed by the plaintiff

Filed by the defendant
 Contains the facts of the case

Organized in items denying every
fact stated in the complaint

Every fact not denied will be
admitted by the court

May present new matter
(affirmative defenses), which will be
addressed by the plaintiff in the
Reply

May present counterclaims
[reconvenção]
 Divided in ‘causes of action’ so if the
plaintiff loses one claim (issue) of a
case he will not necessarily lose all
claims
34
Answer Forms & Samples
In many common law jurisdictions, the courts offer standard forms to be completed when
submitting an answer to a complaint.
Here, you can find a 3 examples:
1.
Written answer in Action for Money Only from the Civil Court of the City of New York
2.
Defendant’s Answer/Counter Claim from the North Dakota Supreme Court
3.
Answer with defenses from the Kansas Judicial Council
And below are two other examples, but this time you will see what authentic answers look
like:
1.
Shepard Fairey v. The Associated Press – Answer, Affirmative Defenses and
Courterclaims of Defendant
2.
Popular Leasing U.S.A. v. Yizhac Arvilli – Answer, Affirmative Defenses and
Courterclaims of Defendant
*Documents 1 to 3 are also available in the online
classroom, just below the link to this pack.
35
Reading an Answer
We will now start showing the elements of an answer
in a civil case in the common law system.
In an answer to a civil
complaint the defendant
can:
a) deny all the claims in the
complaint (item by item)
b) present new matter (or
affirmative defenses)
c) make counterclaims
d) pray for relief
36
Steps to Reading (& Writing) an Answer
An answer can be generally structured as follows:
1. Names of the parties & general lawsuit information
2. Answer to the complaint
•
•
General
Item by item
3. Affirmative defenses
4. Prayer for relief [pedido]
We will take a look at each one of these sections separately in the
next slides.
37
1. Names of the parties & lawsuit info
L
i
n
e
Docket number
Filing date
Number of pages
Number of documents
filed so far
n
u
m
b
e
r
Name of the judge
Name of the court
P
a
r
t
i
e
s
Docket number
Content of the Answer
38
2.1 Answer to the complaint: General
In this section, defendant usually makes general denials after which
defendant usually presents specific denials (see next slide).
39
2.2 Answer to the complaint: Item by item
In this section, defendant answers plaintiff’s allegations item by item,
identifying the paragraphs or the lines in the complaint.
40
3. Affirmative Defenses
In this section, Defendant presents
justifications or excuses to limit,
excuse or avoid defendant’s
liability.
Rule 8 of the Federal Rules of Civil
Procedure specifically enumerates
the following defenses:
"accord and satisfaction, arbitration
and award, assumption of risk,
contributory negligence, discharge
in bankruptcy, duress, estoppel,
failure of consideration, fraud,
illegality, injury by fellow servant,
laches, license, payment, release,
res judicata, statute of frauds,
statute of limitations, waiver, and
any other matter constituting an
avoidance or affirmative defense."
41
4. Prayer for Relief
42
Part IV
Appeals
Definição de Appeal
De acordo com o American Heritage:
a) The transfer of a case from a lower to a higher
court for a new hearing. (A transferência de uma
ação para uma instância superior para novo
julgamento)
b) A case so transferred. (A ação transferida.)
c) A request for a new hearing.(Pedido de novo
julgamento)
44
Quais as partes de um appeal?
Um appeal envolve duas partes:
– a parte apelante ou recorrente (appellant ou
plaintiff in error) que procura alterar a decisão
proferida por instância inferior (lower court) e
– a parte apelada ou recorrida, chamada appellee
ou respondent.
45
Quais os instrumentos da apelação?
No sistema da common law, um appeal, em regra, não
tem início com o instrumento de apelação (appellate
brief).
O appellant, em primeiro lugar, deve informar em notice
of appeal sua intenção de recorrer. Só depois o
appellant entra com a apelação propriamente dita.
Em seguida, a parte contrária, submete um responsive
brief ao qual o recorrente pode responder com um final
brief.
46
Notice of appeal
Cultural
Note!
A figura da notice of appeal é interessante, pois a mera
manifestação da intenção de recorrer de uma das partes
acaba abrindo espaço para acordos.
É alto o índice de acordos entre a apresentação da notice
of appeal e as sustentações orais (oral arguments), ou
até mesmo antes da protocolização do próprio recurso apesar de a prática de submeter notice of appeal sem a
intenção de dar seguimento ao recurso ser considerada
pouco ética.
47
Appeal = recurso
Vale ressaltar que o termo appeal corresponde ao termo
recurso em português e não apenas ao recurso de
apelação. Assim, um recurso administrativo, por
exemplo, também é um tipo de appeal.
48
Possíveis desfechos de um appeal
a) sustained – recurso mantido / julgado
procedente
b) denied – recurso negado / julgado improcedente
c) reversed – recurso reformado
49
Mais desfechos
Além dos anteriores, em muitos casos, o desfecho de
uma appeal é o de os autos serem devolvidos à
instância inferior com determinação para a
realização de novos procedimentos ou até mesmo
com orientação de julgamento, respectivamente.
a) appeal remanded for further proceedings
b1) appeal remanded with direction to render judgment
b2) appeal remanded with direction to dismiss
50
Quem julga?
The right to appeal – Nos Estados Unidos o direito de recorrer não é absoluto e é
concedido de duas formas:
a) por questão de direito (matter of right) – nos casos em que a lei dispõe que a
parte, naquele determinado caso, possui direito de recorrer;
b) por discricionaridade da instância superior (discretion) – como no caso da
Suprema Corte, por exemplo, que é um tribunal com poder discricionário para
selecionar, entre as centenas de recursos que recebe ao ano, aquilo que vai julgar.
Em outras palavras, os membros da Suprema Corte passam mais tempo
decidindo sobre aquilo que vão julgar que, propriamente, julgando. Um dos
critérios adotados por este tribunal é a ação objeto da apelação ter reflexo
nacional ou em grande parcela da população. Por essa e outras razões,
diferentemente do STF, a Suprema Corte não é um tribunal constitucional.
51
Obrigada!
www.tradjuris.com.br
[email protected]
52