A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for use in court or for discovery purposes. Depositions are used in litigation in the United States and Canada, they are always conducted outside court by the lawyers themselves, with no judge present to supervise the examination. Depositions developed in the United States in the nineteenth century. Depositions are a part of the discovery process in which litigants gather information in preparation for trial. In nations that do not provide for depositions, testimony is preserved for future use by way of live testimony in the courtroom, or by way of written affidavit; some jurisdictions recognize an affidavit as a form of deposition, sometimes called a "deposition upon written questions." While in common law jurisdictions such as England and Wales and New Zealand recording the oral evidence of supporting witnesses is routine during pre-litigation investigations, having the right to pose oral questions to the opposing party's witnesses before trial is not.
Deposition is the preferred term in U. S. federal courts and in the majority of U. S. states. Some states refer to a deposition as an examination before trial. However, in unusual situations depositions are sometimes taken during or after trial. In all cases pending in United States federal courts, depositions are carried out under Rule 30 of the Federal Rules of Civil Procedure. About 35 states use versions of the FRCP in their state courts. Other states have discovery rules that are set out either in court rules or statutes, which vary somewhat from one state to another. According to FRCP Rule 30, the number of depositions is limited to 10 depositions per side, with deposition of each deponent limited to 1 day of 7 hours; the person to be deposed at a deposition, known as the deponent, is notified to appear at the appropriate time and place by means of a subpoena. The most desired witness is an opposite party to the action. In that instance, legal notice may be given to that person's attorney, a subpoena is not required.
But, if the witness is not a party to the lawsuit or is reluctant to testify a subpoena must be served on that party. To ensure an accurate record of statements made during a deposition, a court reporter is present and transcribes the deposition by digital recording or stenographic means. Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well. Depositions take place at the office of the court reporter or in the office of one of the law firms involved in a case. However, depositions are sometimes taken at a witness's workplace or home, or in a nearby hotel's conference room; the deposition is attended by the person, to be deposed, their attorney, court reporter, other parties in the case who can appear or be represented by their counsels. Any party to the action and their attorneys have the right to ask questions. Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury.
Thereafter, the court reporter makes a verbatim digital or stenographic record of all, said during the deposition, in the same manner that witness testimony is recorded in court. Some jurisdictions allow stenomask technology in lieu of traditional stenographic equipment, although many jurisdictions still prohibit stenomask because of its disconcerting effect on some lawyers and witnesses. Attorneys for the deposing litigant are present, although this is not required in all jurisdictions; the attorney who has ordered the deposition begins questioning of the deponent. Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance have an opportunity to cross-examine the witness; the first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross. During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked.
Objections to form are used to signal the witness to be careful in answering the question. Since the judge is not present, all other objections, in particular those involving the rules of evidence, are preserved until trial, they still can be made sometime at the deposition to indicate the serious problem to judge and witness, but the witness must answer the question despite these objections. If the form objection is made, the opposite party still has the right to re-phrase the same question and ask it again. Indeed, in Texas, lawyers were so aggressively using objections to indirectly coach their witnesses on the record that all objections outside four narrow categories are now prohibited and making such prohibited objections waives all objections to the question or answer at issue. California is the major "outlier" on deposition objections.
Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas; when a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Discovery evolved out of an unique feature of early equitable pleading procedure before the English Court of Chancery: among various requirements, a plaintiff's bill in equity was required to plead "positions." These were statements of evidence that the plaintiff assumed to exist in support of his pleading and which he believed lay within the knowledge of the defendant. They resembled modern requests for admissions, in that the defendant was required to plead only whether they were true or false.
At some point between the reign of Elizabeth I and the late seventeenth century, positions were replaced by interrogatories—written questions which the defendant was required to respond to in his answer to the bill based on information within his own personal knowledge as well as documents in his possession. But back interrogatories could only elicit admissible evidence and could only request evidence in support of the plaintiff's case, not either side's case. Worse, this was purely a one-way procedure, because interrogatories could only be pleaded as part of a bill. A defendant who needed to obtain evidence in support of his defenses had to file a cross-bill against the plaintiff to plead his own interrogatories. Discovery did not exist at common law, but its availability in equity attracted litigants in actions at law, they began to file bills in equity to obtain discovery in aid of actions at law. This led to another innovation in the mid-15th century: the bill to perpetuate testimony of a potential witness.
This was for witnesses whose advanced age or poor health implied they would not survive to testify at the trial of an action at law. In this type of proceeding, the parties pleaded written interrogatories which a commission would ask the witness on their behalf without parties or counsel present; the recorded answers were sealed and were not revealed to parties or counsel until shortly before the trial in which they were to be used. Major reforms enacted in New York in the late 1840s and in England in the early 1850s laid the foundation for the rise of modern discovery by imposing a clear separation between pleadings and discovery as distinct phases of procedural law. Discovery devices could now be invoked independently of the pleadings; the New York reforms went much farther, by directly merging common law and equity procedure, by expressly authorizing a new discovery device. Parties and their attorneys could now demand pretrial oral examination of opposing parties and third-party witnesses, the basis of the modern deposition.
Under the law of the United States, civil discovery is wide-ranging and may seek disclosure of information, reasonably calculated to lead to the discovery of admissible evidence. This is a much broader standard than relevance, because it contemplates the exploration of evidence which might be relevant, rather than evidence, relevant. Certain types of information are protected from discovery. Other types of information may be protected, depending on the type of case and the status of the party. For instance, juvenile criminal records are not discoverable, peer review findings by hospitals in medical negligence cases are not discoverable and, depending on the case, other types of evidence may be non-discoverable for reasons of privacy, difficulty and/or expense in complying and for other reasons. Electronic discovery or "e-discovery" refers to discovery of information stored in electronic format. In practice, most civil cases in the United States are settled after discovery. After discovery, both sides are in agreement about the relative strength and weaknesses of each side's case and this results in either a settlement or summary judgment, which eliminates the expense and risks of a trial.
Discovery is available in criminal cases. Under the rule set forth in Brady v. Maryland, the prosecutor is obligated to provide to the defendant any information, exculpatory or exculpatory, without any request by the defense. Further discovery is available. For example, a discovery demand might be for production of the names of witnesses, witness statements, information about evidence, a request for opportunity to inspect tangible evidence, for any reports prepared by expert witnesses who will testify at trial. If a defendant in a criminal case requests discovery from the prosecution, the prosecutor may request reciprocal discovery; the prosecutor's right to discovery is deemed reciprocal as it arises from the defendant's reque
A jury is a sworn body of people convened to render an impartial verdict submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the lack thereof in a crime. In Anglophone jurisdictions, the verdict may be not guilty; the old institution of grand juries still exists in some places the United States, to investigate whether enough evidence of a crime exists to bring someone to trial. The modern criminal court jury arrangement has evolved out of the medieval juries in England. Members were supposed to inform themselves of crimes and of the details of the crimes, their function was therefore closer to that of a grand jury than that of a jury in a trial. The word jury derives from Anglo-Norman juré. Juries are most common in common law adversarial-system jurisdictions. In the modern system, juries act as triers of fact. A trial without a jury is known as a bench trial; the "petit jury" hears the evidence in a trial as presented by the defendant.
After hearing the evidence and jury instructions from the judge, the group retires for deliberation, to consider a verdict. The majority required for a verdict varies. In some cases it must be unanimous, while in other jurisdictions it may be a majority or supermajority. A jury, unable to come to a verdict is referred to as a hung jury; the size of the jury varies. In civil cases many trials require fewer than twelve jurors. A grand jury, a type of jury now confined exclusively to federal courts and some state jurisdictions in the United States, determines whether there is enough evidence for a criminal trial to go forward. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger than and distinguishable from the petit jury used during a trial with 12 jurors, it is not required. Grand juries can be used for filing charges in the form of a sealed indictment against unaware suspects who are arrested by a surprise police visit.
In addition to their primary role in screening criminal prosecutions and assisting in the investigation of crimes, grand juries in California and some other U. S. states are sometimes utilized to perform an investigative and policy audit function similar to that filled by the Government Accountability Office in the United States federal government and legislative state auditors in many U. S. states. A third kind of jury, known as a coroner's jury can be convened in some common law jurisdiction in connection with an inquest by a coroner. A coroner is a public official, charged with determining the circumstances leading to a death in ambiguous or suspicious cases. A coroner's jury is a body that a coroner can convene on an optional basis in order to increase public confidence in the coroner's finding where there might otherwise be a controversy. In practice, coroner's juries are most convened in order to avoid the appearance of impropriety by one governmental official in the criminal justice system toward another if no charges are filed against the person causing the death, when a governmental party such as a law enforcement officer is involved in the death.
Serving on a jury is compulsory for individuals who are qualified for jury service. A jury is intended to be an impartial panel capable of reaching a verdict. Procedures and requirements may include a fluent understanding of the language and the opportunity to test jurors' neutrality or otherwise exclude jurors who are perceived as to be less than neutral or partial to one side. Juries are chosen randomly from the eligible population of adult citizens residing in the court's jurisdictional area. Jury selection in the United States includes organized questioning of the prospective jurors by the lawyers for the plaintiff and the defendant and by the judge—voir dire—as well as rejecting some jurors because of bias or inability to properly serve, the discretionary right of each side to reject a specified number of jurors without having to prove a proper cause for the rejection, before the jury is impaneled. A head juror is called the "foreperson", "foreman" or "presiding juror"; the foreperson may be chosen before the trial begins, or at the beginning of the jury's deliberations.
The foreperson may be selected depending on the jurisdiction. The foreperson's role may include asking questions on behalf of the jury, facilitating jury discussions, announcing the verdict of the jury. Since there is always the possibility of jurors not completing a trial for health or other reasons one or more alternate jurors are selected. Alternates are present for the entire trial but do not take part in deliberating the case and deciding the verdict unless one or more of the impaneled jurors are removed from the jury. In Connecticut, alternate jurors are dismissed. Connecticut General Statutes 51–243 and 54-82h do not allow alternat
In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff to a remedy. For example, the Federal Rules of Civil Procedure that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading. In Civil Law, a “complaint” is the first formal action taken to begin a lawsuit; this written document contains the allegations against the defense, the specific laws violated, the facts that led to the dispute, any demands made by the plaintiff to restore justice. In some jurisdictions, specific types of criminal cases may be commenced by the filing of a complaint sometimes called a criminal complaint or felony complaint.
Most criminal cases are prosecuted in the name of the governmental authority that promulgates criminal statutes and enforces the police power of the state with the goal of seeking criminal sanctions, such as the State or Crown. In the United States, the complaint is associated with misdemeanor criminal charges presented by the prosecutor without the grand jury process. In most U. S. jurisdictions, the charging instrument presented to and authorized by a grand jury is referred to as an indictment. Every U. S. state has some forms available on the web for most common complaints for lawyers and self-representing litigants. Several United States federal courts publish general guidelines for the petitioners and Civil Rights complaint forms. A complaint has the following structural elements: Caption and Heading - lists name and telephone number of the filing attorney or self-representing litigant at the top of the complaint; the case caption also indicates the court in which the case originates, names of the parties and a brief description of the document.
Jurisdiction and venue - this section describes why the case should be heard in the selected court rather than some other court or forum. Parties - identifies plaintiffs and defendants. Definitions - optional section which defines some terms used throughout the document; the main purpose of a definition is to achieve clarity without needless repetition. Statement of facts - lists facts that brought the case to the court. Cause of Action - a numbered list of legal allegations, with specific details about application of the governing law to each count. In this section the plaintiff cites existing Law, previous decisions of the court where the case is being processed, decisions of the higher appellate courts, cases from other courts, - as an analogy to resolve similar questions of law. Injury - plaintiff explains to the judge how the actions of the defendant harmed his rights. Demand for relief - describes the relief; the relief can include a request for declaratory judgment, a request for injunctive relief and actual damages, punitive damages, other relief.
After the complaint has been filed with the court, it has to be properly served to the opposite parties, but petitioners are not allowed to serve the complaint personally. The court can issue a summons - an official summary document which the plaintiff needs to have served together with the complaint; the defendants have limited time to respond, depending on the State or Federal rules. A defendant's failure to answer a complaint can result in a default judgment in favor of the petitioner. For example, in United States federal courts, any person, at least 18 years old and not a party may serve a summons and complaint in a civil case; the defendant must submit an answer within 21 days after being served with the summons and complaint, or request a waiver, according to FRCP Rule 12. After the civil complaint has been served to the defendants, the plaintiff must, as soon as practicable initiate a conference between the parties to plan for the rest of the discovery process and the parties should submit a proposed discovery plan to the judge within 14 days after the conference.
In many U. S. jurisdictions, a complaint submitted to a court must be accompanied by a Case Information Statement, which sets forth specific key information about the case and the lawyers representing the parties. This allows the judge to make determinations about which deadlines to set for different phases of the case, as it moves through the court system. There are freely accessible web search engines to assist parties in finding court decisions that can be cited in the complaint as an example or analogy to resolve similar questions of law. Google Scholar is the biggest database of full text state and federal courts decisions that can be accessed without charge; these web search engines allow one to select specific state courts to search. Federal courts created the Public Access to Court Electronic Records system to obtain case and docket information from the United States district courts, United States courts of appeals, United States bankruptcy courts; the system is managed by the Administrative Office of the United States Courts.
In law, a trial is a coming together of parties to a dispute, to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court; the tribunal, which may occur before a judge, jury, or other designated trier of fact, aims to achieve a resolution to their dispute. Where the trial is held before a group of members of the community, it is called a jury trial. Where the trial is held before a judge, it is called a bench trial. Hearings before administrative bodies may have many of the features of a trial before a court, but are not referred to as trials. An appellate proceeding is generally not deemed a trial, because such proceedings are restricted to review of the evidence presented before the trial court, do not permit the introduction of new evidence. Trials can be divided by the type of dispute at issue. A criminal trial is designed to resolve accusations brought against a person accused of a crime. In common law systems, most criminal defendants are entitled to a trial held before a jury.
Because the state is attempting to use its power to deprive the accused of life, liberty, or property, the rights of the accused afforded to criminal defendants are broad. The rules of criminal procedure provide rules for criminal trials. A civil trial is held to settle lawsuits or civil claims—non-criminal disputes. In some countries, the government can both be sued in a civil capacity; the rules of civil procedure provide rules for civil trials. Although administrative hearings are not ordinarily considered trials, they retain many elements found in more "formal" trial settings; when the dispute goes to judicial setting, it is called an administrative trial, to revise the administrative hearing, depending on the jurisdiction. The types of disputes handled in these hearings is governed by administrative law and auxiliarily by the civil trial law. Labor law is the body of laws, administrative rulings, precedents which address the legal rights of, restrictions on, working people and their organizations.
As such, it mediates many aspects of the relationship between trade unions and employees. In Canada, employment laws related to unionized workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. However, there are two broad categories of labour law. First, collective labour law relates to the tripartite relationship between employee and union. Second, individual labour law concerns employees' rights through the contract for work; the labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the social and economic development since the industrial revolution. There are two primary systems for conducting a trial: Adversarial: In common law systems, an adversarial or accusatory approach is used to adjudicate guilt or innocence; the assumption is that the truth is more to emerge from the open contest between the prosecution and the defense in presenting the evidence and opposing legal arguments with a judge acting as a neutral referee and as the arbiter of the law.
In several jurisdictions in more serious cases, there is a jury to determine the facts, although some common law jurisdictions have abolished the jury trial. This polarizes the issues, with each competitor acting in its own self-interest, so presenting the facts and interpretations of the law in a deliberately biased way; the intention is that through a process of argument and counter-argument, examination-in-chief and cross-examination, each side will test the truthfulness and sufficiency of the opponent's evidence and arguments. To maintain fairness, there is a presumption of innocence, the burden of proof lies on the prosecution. Critics of the system argue. Further, the results are to be affected by structural inequalities; those defendants with resources can afford to hire the best lawyers. Some trials are—or were—of a more summary nature, as certain questions of evidence were taken as resolved. Inquisitorial: In civil law legal systems, the responsibility for supervising the investigation by the police into whether a crime has been committed falls on an examining magistrate or judge who conducts the trial.
The assumption is that the truth is more to emerge from an impartial and exhaustive investigation both before and during the trial itself. The examining magistrate or judge acts as an inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, collecting other evidence; the lawyers who represent the interests of the State and the accused have a limited role to offer legal arguments and alternative interpretations to the facts that emerge during the process. All the interested parties are expected to co-operate in the investigation by answering the magistrate or judge's questions and, when asked, supplying all relevant evidence; the trial only takes place after all the evidence has been collected and the investigation is completed. Thus, most of the factual uncertainties will be resolved, the examining magistrate or judge will have resolved that there is prima facie of guilt. Critics argue that the examining magistrate or judge has too much power in that he or she will both investigate and adjudicate on the merits of the case.
Although lay assessors do sit as a form of jury to offer advice to the magistrate or judge at the conclusion of the trial, their role is subordinate. Further, because a professio