PROCEDURAL LAW

COMMON LAW AND EQUITY THE COMMON LAW SYSTEM OF EARLY ENGLAND
one who believes he has a legal claim brings a cause of action in court (vloitev tobe,
s katero se sproi pravda)

he is seeking some form of relief, remedy (zadoenje) remedy is supposed to cure or satisfy his claim of harm or injury (terjatev za kodo ali
pokodbo)

in the beginning only certain forms of action were recognized by the law courts a claim had to fit one of recognized forms of action otherwise the claimant didn't succeed and no remedy was possible to claimants who succeed, only limited remedies were available only money damages (odkodnina, povrailo premoenjske kode) no adequate remedy was available claimants were unable to have their cause of action heard or they couldn't get relief other than money damages therefore they petitioned the king, who opened a new avenue of relief known as equity (pravinost) the king instituted the Court of Chancery (vrhovno sodie), which decided cases according to equity and good conscience (pravinost in dobra vest pri nas dobra vera in
potenje)

there were two parallel paths to settle disputes (dve poti za reevanje sporov) common law courts equity courts equity courts granted relief at their own discretion (zagotavljali so zadoenje po lastnem
preudarku)

equity courts were deciding cases according to general principles maximes, not by use of legal precedens equity regards the substance rather than the form equity will not suffer a wrong to be without a remedy he who seeks equity must do equity he who comes into equiti must come with clean hands the chancellor presiding the equity court was empowered to issue a decree (pooblaen izdati odlobo), which ordered a defendant to do or refrain (storiti ali opustiti) some specific act if a defendant didn't comply (podrediti se) whith that decree, he could be found in contempt od court (prezir sodia), punishable by fine od imprisonment the power of issuing a decree opened the possibility of several remedies today the law and equity are merged, so that one court can administer both methods of dispute resolution injunction (opomin): a party was ordered to do or refrain from doing some act specific performance: a party was ordered to perform his side of a contract by transferring title to the buyer reformation (preoblikovanje): it was ordered to repair od change contract language to better meet the intentions od the parties; this remedy it is used in situation od mutal mistake (vzajemne napake) recission: the contract was invalidated under certain circumstances

REMEDIES
-

COURT SYSTEM IN USA FEDERAL COURT SYSTEM

general or limided jurisdiction: US District Court: there are 94 judical districts within the USA, each state has several judical districts al the federal level

first appeal: US Court of Appeals: there are 13 federal judical circuit or federal appelate circuits courts od last resort:

US Supreme Court: sits in capital city of USA, Washington D.C.

STATE COURT SYSTEM

general or limided jurisdiction: County Court (okrajno): there are several counties in each state Circuit Court (okrono): there are several state judical circuits within each state

first appeal: District Court of Appeal: there are several state appelate districts in each state courts od last resort: Supreme Court: sits in capital city of each state, it is not necessary that a State has a Supreme Court

COURT SYSTEM IN UK CIVIL JURISDICTION

- County Court (okrajno sodie): this court jurisdiction includes contract or torts actions up to 5000, equity matters up to 30000 - High Court: Queen's Bench Division: trial of civil actions such as contracts, torts Family Division: trial of matrimonial proceedings, acrions regarding legitimacy guardianship od minors Chancery Division: trial of action such as mortgages, deeds, specific performance, bankruptcy - Court of Appeal: appeals from High Court and County Court (in certain cases leave
(=dovoljenje) is necessary)

House of Lords: appeals from Court of Appeal and leapfrog appeal (pritoba, ki preskoi) direct from High Court in certain circumstances Magistrates' Court: summary jurisdiction (skrajani postopki), examining justices (preiskovalni sodniki) establish case Crown Court: appeals from Magistrates' Court, jury trials on indictment after commital (preiskava) High Court: Queen's Bench Division: appeal by way of case stated Court od Appeal: appeals from Crown Court against conviction on indictment (in
certain cases leave is necessary)

CRIMINAL JURISDICTION
-

House of Lords: appeals from Queen's Bench Division and from Court of Appeal

COURT PROCEDURE IN USA

ALTERNATIVE DISPUTE RESOLUTION (alternativno reevanje sporov)
most civil lawsuits are settled without a final court decision some are settled in pre-trial stage, soon after being filed some are settled during the trial interest in finding way to resolve dispute outside the formal court systems is growing alternative dispute resolution is a process by whics a conflict (dispute), between two or more parties, can be settled (resolved), by some other means or process outside of the formal court system (alternative) conciliation: an informal process a conciliator helps parties to lower tensions and to improve communications mediation: a more structured process a mediator helps parties to reach a signed agreement but a mediator has no power to render a decision on his own

COMMON METHODS OF ALTERNATIVE DISPUTE RESOLUTION

-

binding arbitration: a structured, binding process disputing parties select an arbitrator and present their arguments and evidence to that arbitrator then arbitrator render a decision and parties are bound by that decision, due to their prior agreement to be bound or by some statutes requiring that the parties are bound binding arbitration is used in commercial, insurance and management disputes arbitration is less formal, less complex, less costly, concludes faster than regular proceedings

HOW DOES A LAWSUIT BEGIN IN CIVIL CASES PARTIES: PLAINTIFF AND DEFENDANT
a plaintiff is a person who prepares and files a complaint the complaint states the plaintiff's version of the facts and asks for certain damages od other relief a defendant is a person against whom the case is filed by a summons, the defendant is notified that a lawsuit has been filed against him after being notified, the defendant files an answer, which states his version of the facts

JURISDICTION AND VENUE

the case must be filed in the proper court, which has jurisdiction over the person or property involved jurisdiction (stvarna pristojnost) means that: the court has authority over the subject matter of the case the court is able to exercise control over defendant the property involved must be loceted in the area under the court's control transitory actions are actions which can be brought in any county in any state where the defendant may be found and served with a summons local actions are actions which can be brought only in the county where the subject of a suit is located venue referes to the county of district where the lawsuit is to be tried (krajevna
pristojnost)

PLEADINGS
pleadings are certain formal documents filed with the court (vloge) pre-trial pleadings: complaint: states the plaintiff's version of the facts and asks for the damagres or other relief; it frames the issue of the case, what is case all about
(toba)

answer: defendant's respond to the statements in the plaintiff's complaint, defendant offers additional facts and explains why the plaintiff should not prevail
(odgovor na tobo)

reply: an answer to new statements raised by other party in prior pleadings

(odgovor na odgovor)

counterclaim: defendant sues for relief or damages from the plaintiff, it may be filed separately or as part of the answer (protiterjatev, protitoba)

MOTIONS
motions are requests for judge to make a legal ruling, when legal questions require a determination (predlog) motion for summary judgement: asks for a judgement in the moving party's favor before a lawsuit goes to trial, it is used when there is no dispute about the facts and only the question of law needs to be decided

motion to discover: one party seeks to gain information held by adverse party motion to dismiss: asks to dismiss the suit because the suit doesn't have a legally sound basis motion to quash service summons: seeks dismissal of the lawsuit because the defendant wasn't properly served with the summons motion to strike: asks the court to eliminate irrelevant, prejudical, improper material from plaintiff's pleading motion to make more definite od certain: asks the court to require from the plaintiff, to state the facts of the case more specifically, describes the injuries or damages more clearly

DISCOVERY
discovery is a formal process of exchanging information between the parties, which enables the parties to know what facts may be presented at the trial - discovery requests don't have to go before a judge, unless parties have a dispute over the relevancy of question - methods of discovery: deposition and interrogatories - deposition deposition is an out-of-court statement given under oath, that enables adverse party to know in advance what a witness or party will say at the trial the deposition consists (sestavljen) of an oral examination, followed by crossexamination by the opossing side - interrogatories written questions of one party to another, which require an answer in writing under oath -

PRE-TRIAL CONFERENCE
pre-trial conference is conference between counsels and court status conference is used for establishing judical control of the case, it is held after all initial pleadings have been filed, this conference is used to establish times within which all pre-trial activities are to be concluded the purpose of a pre-trial conference is an opportunity for the judge and the lawyers to review the evidence an opportunity to clarify the issues in dispute a chance to achieve the settlement of cases if a case has not been settled, court sets an issue conference, where lawyers appear before a judge without their clients and try to agree on undisputed facts such agreements are called stipulations; the issue conference can shorten the actual trial time by determinating points that don't need to be proved during the trial if a settlement doesn't take place through pre-trial conferences, the judge sets a date for the trial

PRE-TRIAL PROCEDURES IN CRIMINAL CASES BRINGING THE CHARGE

criminal charge is brought against a person in one of 3 ways: as an indictment voted by a grand jury (obtonica velike porote) as an information filed by the prosecutor alleging that the crime was committed, or as a criminal complaint filed by another individual as a petition to the district attorney to initiate charges as a citation by a police officer for minor traffic offenses, certain mesdemeanors and minor criminal matters the charge must tell the time, date and place that the criminal act took place, involvement of the accused and details of the crime itself grand jury is a body of citizens, summoned by the court the grand jury's function is to determine whether and against whom criminal charge should be filed, whether there is sufficient evidence to brign a person to trial

THE GRAND JURY

-

the grand jury doesn't decide whether the person is guilty or inoccent grand jury proceedings are secret the public and the person being investigated have no right to be present people called to testify are not allowed to be represented by the counsel when appearing before a grand jury secrecy is intend to encourage witnesses to speak freely and to protect the persons being investigated if evidence is insufficient and an indictment is not issued after a criminal charge is brought against the person, the a warrant for the arrest of the person charged is issues, if a person haven't already been arrested and taken into custody it is permitted to hold up a suspect for up to 24 hours without filing a formal charge within that time, formal charges must be filed against him or he must be released when officers question people taken into custody, they must inform people about their rights, otherwise the evidence garnered from the interview can't be used against them miranda rights person have the right to remain silent person have the right to consult with a lawyer if a person can't afford a lawyer, one will be appointed to represent them anything person says can and will be used against him on initial apperance the judge decides whether there are sufficient evidence to charge the accused person the state must prove the probable cause to believe the accused person committed the crime, he is charged with if the judge concludes that there isn't sufficient evidence, the charge is dismised if a judge believes that there is sufficient evidence, he set the amout of the bail the bail is amount od money that accused person must pay to be released from custody until his trial the bail ensures that the accused will appear for trial the bail is not a punishment, it is returned to the defendant when the trial is over if defendant can't pay entire amount of bail, he is released if a bail bondsman (porok za varino) guarantees the remaining amount if a defendant is not present for trial the judge may release the defendant if he promises that he wil appear for all hearings and for trial on initial apperance the judge may appoint a lawyer if the accused can't afford to hire one
(obtoevanje)

ARREST POCEDURES
-

INITIAL APPERANCE
-

ARRAIGNMENT OR PRELIMINARY HEARING

-

on arraignment the indictment or information is read to the defendant, his rights are explained and he enters his plea (pove svoj zagovor)
(pogajanja)

PLEA BARGAINING
-

plea bargaining is a process by which a criminal case is resolved out od court, if both sides come to agreement - a defendant can plead "not guilty", "guilty" or "no contest", which is equivalent to a guilty plea - positive sides of a plea bargaining the defendand can avoid the time, the cost of the trial, the risk of harsher punishment and the publicity the prosecution saves the time and expense of a trial the court system is relieved of the burden of conducting a trial on every crime charged - the defendant pleads guilty in exchange to a lesser charge or prosecution recommends leniency in sentencing - alternatives: by diversion programs less serious criminal matters are removed from the ful formal procedutes od justice system the defendant is on probation without

having to go through a trial, if he successfully completes the probation, the matter is erased from the records

DISCOVERY
discovery is available in criminal cases if both prosecution and the defense engage in discovery both sides must reveal to each other all witnesses they intend to call to testify at the trial the prosecution must also reveal all other evidence which will be introduced against the defendant

TRIALS: CIVIL AND CRIMINAL OFFICERS OF THE COURT

the judge presides the courtroom, on non-jury trials judge determines the facts and reaches the verdict, on jury trials judge rules only on points of law the court clerk adminisrers the oath to prospective (bodo) jurors and to witnesses, he is also repository (shranjevalec) of physical exhibits introduced into evidence bailiff (sodni sluga): keeps order in the courtroom, calls the witnesses, leads the jury in ad out od the courtroom his duty is to be certain no one outside the courtroom attempts to influence the jury the court reporter: report everything that is said as part of the formal proceedings in the courtroom the lawyers are representing clients the jury is chosen at random from a list called venire or jury pool the venire is the list of the potential jurors many potential jurors are exempted (oproen) from jury duty because of their jobs doctors, teachers, clergy, government officials, firefighter, police officers... the size of the jury depends on the type od case at trial in civil cases: 6 jurors is a standard size, but it can be increased in serious criminal cases: 12 jurors are required in misdemeanor cases (prekrki): it is possible that fewer than 12 jurors are required in serious criminal cases the jury has to be unanimous (enoglasen), in misdemeanor and civil cases the verdict may be based on the concurrence (soglasje) of 3/4 or 5/6 of the jurors alternate jurors may be selected to replace a disabled juror before the trial begins, the judge explains to the jury what kind od case is to be tried the judge or the lawyers ask the potential jurors some questions on the base of such questionint, the lawyer can ask the juror to be dismissed for cause if he believes a juror is prejudiced about the case or is a close relative of one of the participants (the judge must concure with dismiss for cause) peremptory challenges permit a lawyer to excuse a potential juror without stating a cause, if he believes that the juror will not be sympathetic to him each lawyer may have an unlimited number of jurors dissmised for cause, but peremptory challenges are limided each lawyer may require the separation of witnesses this is also referred as calling for the rule separating the witnesses means that except for the plaintif and the defendant, all witnesses will be kept out of the courtroom until they are called to testfy probably the witnesses' testimony will be more accurate if they heavn't heard the other witnesses a trial begins with the opening statement of the party with the burden of proof
(dokazno breme)

THE JURY

SEPARATING THE WITNESSES

-

OPENING STATEMENTS
-

in a criminal trial, the burden of proof rests with the state, wich must prove beyond reasonable doubt that the defendant is guilty in a civil trial, the burden of proof rests with the plaintiff, who must prove liability by a preponderance of the evidence (odgovornost toenca na podlagi prevladujoih dokazov) the opening statement must be confined (omejen) to facts that will be proved by the evidence the presentation of evidence and admitting (dopuanj) evidence into a trial is govern by strict rules there are 2 types of evidence direct evidence: evidence that speaks for itself eyewitness accounts (izpovedbe oividcev), a confession, a weapon or instrumentality of a crime... (predmeti,
potrebine, uporabljene pri kaznivem dejanju)

EVIDENCE
-

circumstantial evidence: evidence that suggests something apperance of the crime scene, testimony that suggests a connection with a crime, phisical evidence that suggests criminal activity... the evidence may be offered in 2 forms oral testimony of a witness physical exhibits and documents

PRESENTATION OF THE EVIDENCE BY THE PLAINTIFF OR STATE

DIRECT EXAMINATION - lawyers for the plaintiff or state begin the presentation of evidence by calling witnesses - the questioning of the witnesses is called direct examination - witness may testify matters of facts or identify documents, pictures... - witness can't testify hearsay what a witness heard anothey person say (govorice), the witness is not allowed to repeat a statement made by someone else (on je rekel, da
je ona rekla...)

only expert witnesses are allowed to state opinions or give conclusions, based on the facts - lawyers may not ask leading questions questions which suggest the answer desired CROSS-EXAMINATION - after direct examination, the defense may cross-examine the witness - defense lawyer may ask questions only on matters that were raised during direct examination - leading questions may be asked since the purpose od cross-examination is to test the credibility of statements made during direct examination and the witness will probably resist any suggestion which is not true - during cross-examination the lawyer tries to discredit the witness, destroy or reduce the credibility of the witness OBJECTIONS - objection may be made by the opposing lawyer to leading questions, questions that call for an opinion or conslusion by a witness, question that require an answer based on hearsay, questiones that violates the state's laws on evidence... - if the objection is sustained, the lawyer must re-phrase the question in a proper form or ask another question - if the objection is overruled, the withnes may answer the question -

MOTION FOR DIRECTED VERDICT/DISMISSAL

after presentation of the evidence by the state of the plaintiff the defendant's lawyer may make a motion in a civil case the defendant's lawyer may make a motion for a directed verdict (predlog za neposredno razsodbo), arguing that his defendant's liability has not been proven by a preponderance of the evidence in a criminal case the defendant's lawyer may make a motion to dismiss the charges (predlog za opustitev obtobe), arguing that the government has failed to prove the defendant's guilt beyond reasonable doubt

the judge grants (dovoli) or denies the motion if the motion is granted, the case is over and the defendant wins if the motion is denied, the defense is given the opportunity to present its evidence usually the defense calls witnesses and present other evidence in criminal cases the 5th Amandment protects the defendant against selfincrimination therefore the prosecution can't require the defendant to take the stand and explain what happened the defense presents evidence in the same manner as the plaintiff or the state
(spodbijanje)

PRESENTATION OF THE EVIDENCE BY THE DEFENDANT

-

REBUTTAL

at the conclusion of the defendant's case, the plaintiff or the state can present rebuttal witnesses or evidence to refute (spodbiti) the evidence presented by the defentant during the trial the lawyers may ask premission to approach the bench to speak to the judge or the judge may call both lawyers to the bench this is called the bench conference or sidebar the bench conferences deal with questions about procedure, conduct of the trial, admissability of certain if the judge can't decide quickly, the jury is taken out of the courtroom, so the judge can hear arguments after all the evidence has been presented either side may againt make a motion for a directed verdict if the motion is granted the trial is over if the motion is denied, the case is submitted to the jury the lawyer for plaintiff or state is the first to present the closing argument in the closing argument, the lawyer sums up and comments the evidence in the most favorable light for his side the judge usually indicates (namigniti) to the lawyers wich instructions he intends to give the jury, so the closing arguments comment instructions and relate them to the evidence then the lawyer for defendant presents his closing arguments defendant's lawyer answers statements made in plaintiff's argument and sums up the facts favorable to his client because the plaintiff has the burden of proof, plaintiff's lawyer is entitled to make the concluding argument to respond the defendant and make a final appeal to the jury after closing arguments, the judge instructs the jury about the relevant laws that should guide its deliberations instructions to the jury is referred to as the judge's charge to the jury the instructions contain the interpretation of the relevant laws that govern the case and jurors are required to follow these laws in making their decision the judge also discuss the standars of proof that jurors should applay to the case: beyond reasonable doubt in criminal cases preponderance of the evidence in a civil case jurors determinate the facts and reach a verdict within the guidelines od the law as interpreted by the judge mistrial are trials that are terminated (konan) and declared void (razveljavljen) before the jury returns the verdict or the judge renders his decision in a nonjury trial mistrials can occur for many reasons:

CONFERENCES DURING THE TRIAL

-

FINAL MOTIONS
-

CLOSING ARGUMENTS
-

INSTRUCTIONS TO THE JURY

-

MISTRIALS
-

death of the juror or attorney an improper drawing of the jury a fundamental error prejudical to the defendant that can't be cured by approperiate instructions to the jury the jury's inability to reach a verdict... either side may make a motion for a mistrial the judge will either grant the motion and declare a mistrial or not grant the motion and the trial will go on a mistrial indicates the failure of the trial because mistrials are not valid trials, the prohibition against double jeopardy does not apply to mistrials after the presentation of the evidence for both sides, the jury retires for deliberation
(premislek)

JURY DELIBERATION
the first thing is to elect the foreman or forewoman (predsednik porotnikov) the bailiff sits outside the jury room to ensure that no one comunicates with the jury during deliberation if a jury can't agree on a verdict, the result is a hung jury, which leads to a mistrial the case is not decided and it may be tried again at a later date before a new jury the plaintiff or the state may decide not to pursue (preganjati) the case further after the jury reaches the decision, all the participants reconvene (udeleenci se ponovno zberejo) in the courtroom and the decision is announced possible verdicts in criminal cases are guilty or not guilty; in some states guilty but insane is a possible verdict in civil cases the jury finds for the plaintif or the defendant if a jury fings for the plaintiff, it also set out the amount of damages in complicated civil trials, the judge may simply ask the jury to decide one or more factual questions, and then the judge applies the law to the facts as determined by the jury this is called a special verdict the lawyer may ask that the jury be polled (anketiran) each juror is asked if he agrees with the decision after the decision is read and accepted by the court, the jury is dismissed and the trial is over a motion in arrest of judgement (predlog za zadranje razsodbe): asks that the judgement not be enforced, because of the insufficiency of the indictment or information in a criminal case a motion for judgement notwithstanding the verdict: asks the judge to enter a judgement in favour of losing party despite the decision og the jury a motion for a new trial asks for new trial on the base of errors committed by the judge during the trial

DECISION

MOTIONS AFTER VERDICT

-

JUDGEMENT
the decision of the jury doesn't take effect until the judge enters a judgement on the decision - in civil cases, the judge has the authority to increase or decrease the amount of damages awarded by the jury - in criminal cases, the judge has no authority to modify the verdict, he must accept it or reject it - if the defendant doesn't pay the damages awarded to the plaintiff in a civil case, the plaintiff may ask for an execution of the judgement -

SENTENCING IN A CRIMINAL TRIAL

if the defendant is convicted in a criminal case, the judge sets a date for sentencing in that time called pre-sentencing investigation, the judge consider mitigating facts (olajevalne okoliine), defendat's prior criminal record, family situation and other relevant factor which help him find approperiate sentence

the judge's function is to determine the sentence to be imposed (naloen)

APPEALS RIGHTS FOR APPEAL

in a civil case either party has a right to an appeal in a criminal case, only the defendant has a right to an appeal some states give the prosecution a limited right to appeal to certain points of law - full appeals by the prosecution are not allowed because of the prohibition against double jeopardy, the defendant can't be tried twice for the same crime - criminal defendant may file a writ of Habeus Corpus to show his constitutional rights were violated - appeals are made on the grounds of errors in trial procedure or errors in judge's interpretation of the law - the record on appeal consists of the papers filed in the trial court and the court report's transcript of the trial -

APPEAL PROCEDURE
PARTIES - the party appealing is called appellant or the petitioner - the other party is the appellee or the respodnent FILING A NOTICE OF APPEAL AND FILING A BRIEF - the appeal is instituted (sproen) with filling of a notice of appeal (napoved pritobe) - this filing marks the begining of the time period within which the appellant must file a brief - a brief is a written argument containing his view of facts and legal arguments upon which he is seeking a reversal - then the appellee files an answering brief ARGUMENTS - appeal courts generally make their decision on the basis of the briefs, without hearing oral arguments - but the case may be set for oral argument, if the court or one of the parties request the oral argument - if there is an oral argument, each party's lawyer is given an opportunity to argue the case to the court, and to answer questions posed by the judges TYPES OF ERRORS - the appelate court has to determine whether the law was followed during the trial - an appellate court may reverse (razveljaviti) a judgement of the trial court only for error of law - only reversible errors of law are cause for a reversal - harmless errors which didn't prejudice the rights of the parties to a fair trial, can't be a cause for a reversal DECISION WITH DIFFERENT KINDS OF OPINIONS - after the case is presented to the appellate court, the judges meet in conference to discuss the case - at the conference one judge is designated (doloen) to write majority opinion judges disagreeing with the majority opinion may issue a dissenting opinion
(nasprotujo, tak ki se ne strinja)

judges agreeing with the majority opition but disagreeing with the reasoning may file a concurring opinion MANDATE FOR FURTHER ACTION - after the opinion is handed down, the appellatee court sends its mandate (ukaz) to the trial court for further action further action of a trial court is not to be inconsistent with appelate court's opinion if lower court's judgement is affirmed, the case ends (unless the losing party
appeal to a higher court)

if lower court's judgement is reversed, the appellate court mandate a new trial the appelate court modifies or corrects the trial court's judgement

ENFORCEMENT - an appeal in a civil case doesn't prevent the enforcement of the trial court's judgement - the wining party in the trial court may order the judgement executed unless the appealing party files an appeal or supersedeas bond - this bond will prevent further action on judgement until the appeal is over, guaranteeing that the appealing party wil pay or perform the judgemen if it isn't reversed on appeal