Civil Litigation for Paralegals: Key Concepts for the CP Exam

Civil Litigation: The Most Tested Area on the CP Exam

Civil litigation is the backbone of paralegal practice and one of the most heavily tested areas on the NALA Certified Paralegal exam. Whether you work in litigation or not, you need a thorough understanding of how a civil case moves through the court system. This guide covers every stage and concept you need to know.

Pre-Litigation Phase

Before a lawsuit is filed, several important steps occur:

• Client Intake: Gathering initial facts, identifying potential claims, and running conflict checks
• Investigation: Collecting evidence, interviewing witnesses, and preserving relevant documents
• Demand Letters: Sending a formal demand to the opposing party before filing suit
• Statute of Limitations Analysis: Verifying that the claim is timely. Different causes of action have different limitation periods, and missing the deadline is fatal to the claim.

Paralegals play a critical role in the pre-litigation phase, particularly in organizing facts, maintaining files, and ensuring deadlines are tracked.

Pleadings

The pleadings stage begins when the plaintiff files a complaint. Key documents include:

• Complaint: The document that initiates the lawsuit. It must contain a short and plain statement of the claim showing that the pleader is entitled to relief (FRCP Rule 8). It must also establish jurisdiction and include a demand for judgment.
• Summons: The formal notice to the defendant that a lawsuit has been filed, along with the time to respond
• Answer: The defendant's response to the complaint, which must admit or deny each allegation and assert any affirmative defenses (FRCP Rule 8(b) and (c))
• Counterclaim: A claim by the defendant against the plaintiff (FRCP Rule 13). Compulsory counterclaims arise from the same transaction or occurrence and must be raised or they are waived.
• Cross-Claim: A claim by one party against a co-party (e.g., one defendant against another defendant)
• Third-Party Complaint (Impleader): A claim against a non-party who may be liable for all or part of the plaintiff's claim (FRCP Rule 14)

Service of Process

Proper service of process is essential. Under FRCP Rule 4, the plaintiff must serve the summons and complaint on the defendant. Methods include:

• Personal service (delivering copies directly to the individual)
• Leaving copies at the individual's dwelling with a person of suitable age and discretion
• Delivering to an authorized agent
• Waiver of service (Rule 4(d)), which gives the defendant additional time to respond
• Service on corporations by delivering to an officer, managing agent, or registered agent

Improper service can result in dismissal. Paralegals often coordinate service and track proof of service filings.

Pre-Trial Motions

Several important motions may be filed before trial:

• Rule 12(b)(6) Motion to Dismiss: Argues that the complaint fails to state a claim upon which relief can be granted. The court must accept all facts in the complaint as true and determine whether they state a plausible claim.
• Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction: Challenges the court's authority to hear the case
• Rule 56 Motion for Summary Judgment: Argues that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Both sides may file this motion.
• Motion to Compel (Rule 37): Asks the court to order a party to comply with discovery requests
• Motion in Limine: Seeks to exclude certain evidence before trial begins

Discovery

Discovery is the formal process by which parties exchange information. FRCP Rules 26 through 37 govern discovery. Key tools include:

• Mandatory Disclosure (Rule 26(a)): Parties must automatically disclose certain information without being asked, including the names of witnesses, copies of relevant documents, computation of damages, and insurance agreements.
• Interrogatories (Rule 33): Written questions that must be answered under oath. Limited to 25 per party unless the court orders otherwise.
• Requests for Production (Rule 34): Requests for documents, electronically stored information, or tangible things for inspection and copying
• Requests for Admission (Rule 36): Requests that the opposing party admit or deny specific facts. Failure to respond within 30 days results in automatic admission.
• Depositions (Rules 27 through 32): Oral examination of a witness under oath, recorded by a court reporter. Both party and non-party witnesses can be deposed.
• Physical and Mental Examinations (Rule 35): Available when a party's physical or mental condition is at issue, but requires a court order

Trial

If the case does not settle, it proceeds to trial. Important concepts include:

• Jury Selection (Voir Dire): The process of selecting jurors, including challenges for cause and peremptory challenges
• Burden of Proof: In civil cases, the plaintiff must prove their case by a preponderance of the evidence
• Order of Trial: Opening statements, plaintiff's case-in-chief, defendant's case-in-chief, rebuttal, closing arguments, jury instructions, and verdict
• Directed Verdict/Judgment as a Matter of Law (Rule 50): A party may move for judgment during trial if no reasonable jury could find in favor of the opposing party

Post-Trial and Appeal

After trial, several options exist:

• Motion for New Trial (Rule 59): Seeks a new trial based on errors or newly discovered evidence
• Motion for Judgment Notwithstanding the Verdict (JNOV/Renewed JMOL): Asks the court to enter judgment for the losing party despite the jury's verdict
• Appeal: The losing party may appeal to a higher court on questions of law. The appellate court reviews the record but does not hear new evidence.

Prepare for Civil Litigation Questions

Civil litigation will appear heavily on your CP exam. Use our practice flashcards to reinforce your knowledge of FRCP rules and litigation concepts. Sign up free to start studying today.