Civil Procedure

Figure 1 is a flow diagram of the civil procedure. The number of each activity in the following discussion corresponds to the number of each activity in the diagram.

1. Initial Discussion. Conduct an initial discussion with your client. Develop a preliminary prediction of the total damages by using FactLogic to evaluate the preliminary evidence and circumstances. Based upon this prediction:

• Encourage your client to drop the case.

• Take the case.

• Refer the case.

Let the referenced attorney view FactLogic on the Convex Corporation Web site so he can decide whether to take the case. If he does, transfer the FactLogic Internet account.

2. Propose Informal Settlement. Suggest an informal settlement of the conflict. Negotiate an informal settlement by evaluating the evidence and the aggravating and mitigating circumstances.

3. Informal Settlement. The parties can settle based upon the preliminary predicted total damages.

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4. Complaint. The plaintiff's lawyer files the complaint in court. It

• relates injuries,

• alleges negligence and liability, and

• states the remedy, usually in the form of a monetary award for damages that is

  • compensatory, and possibly,

  • punitive.

5. Service. The court serves the defendant (i.e., notifies him that the complaint has been filed with the court). Service consists of

• a copy of the complaint and

• a summons.

6. Answer. The defendant must answer the complaint or be liable (called a default judgment). The answer is a description of the events from the defendant's point of view in which he denies

• facts and/or

• liability.

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7. Discovery.

• Purpose. Generally, either side can request discovery, and both sides

  • reveal their case,

  • work toward agreement of the facts,

  • evaluate the case, and

  • advise the client accordingly.

• Procedure. Discovery consists of one or more of the following procedures:

  • Deposition. One or more parties or witnesses orally answer questions from lawyers under oath, and cross-examination is possible;

  • Interrogatory. Written questions may be asked of one party to another; and/or

  • Physical Evidence. Physical evidence is presented.

8. Revised Predicted Total Damages. At this point there is enough information to use evaluators to predict the total damages. Use evaluators, and work toward a settlement.

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9. Consider Alternative Dispute Resolution (ADR). Either party may request a summary judgment or some type of ADR. A summary judgment may be requested if there is no question of facts but only a question of liability. The request is usually denied. Alternative dispute resolution consists of arbitration, mediation, mini-trial, or a summary jury trial.

[Arbitration] [Mediation] [Mini-Trial] [Summary Jury Trial]

10. Use ADR. FactLogic can be used in the four types of alternative dispute resolutions to provide increased accuracy of decisions.

11. Pre-Trial Conference. Attorneys should consider a change of venue, selecting jurors, and arranging a shadow jury.

[Change of Venue] [Jury Selection] [Shadow Jury]

12. Trial. You may request that the case be decided by a judge (called a bench trial) or a jury. A judge may be requested if the case is technical or if there is concern that the jury may be prejudiced. If the Internet is available in the court, either side can arrange a shadow jury to concurrently report to the attorneys who can re-evaluate strategy.

[Shadow Jury]

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13. General Verdict Deliberation. Either the judge or jury decides liability. The judge or jury should use FactLogic to improve the accuracy of their decision. For the first time, an unofficial statistical verdict is possible from a jury because FactLogic measures judgments: A statistical verdict is more accurate and revealing than is the current statutory verdict

14. Plaintiff Considers Appeal. If the verdict is For the Defendant, the plaintiff may consider an appeal. Post-trial interviews are important to this consideration. If evidence is learned after the verdict or evidence should not have been admitted, FactLogic can reveal its effect upon the verdict.

15. Actual Damages Awarded. When determining the award, the judge/jury considers contributory or comparative negligence.

16. Non-economic Damages Awarded. If the general verdict is For the Plaintiff, non-economic damages can be awarded. Sometimes for non-economic damages to be awarded, the probability of aggravation (i.e., as determined from aggravating and mitigating circumstances) must exceed a standard of proof.

17. Defense Considers Appeal. If the verdict is For the Plaintiff, the defendant may consider an appeal. Post-trial interviews are important to this consideration.

[Post-Trial Interviews]

© Convex Systems, Inc. 1999