English for the Legal Profession

newspaper. Most cases, however, require the actual service of a summons to the defendant in order to give him notice of the suit.

Very often, more than one court in a state have jurisdiction over a case. To select among them the question of venue(审判地) must be considered. Venue relates to, and defines, the particular territorial area within the state in which a legal action is to take place. Matters of venue are usually determined by statutes. For example, venue statutes in most states provide that actions concerning interests in land must be commenced and tried in the county or district in which the land is located. Suits for divorce must be commenced and tried in the county in which one of the parties resides.

29

English for the Legal Profession

Chapter 11 Pleadings and Motions Attacking Pleadings

Civil litigation begins with the pleadings. A pleading is a legal document filed with the court that sets forth the position and contentions of a party(诉状是向法院存档、陈述当事人立场和论点的法律文件。). The purpose of pleadings in civil actions is to define the issues of the lawsuit. This is accomplished by each party making allegations(主张) of fact and the other party either admitting the allegations or denying them.

The first of the pleadings is usually called a complaint(起诉状). A complaint is a written statement which sets forth the plaintiff’s allegations against the defendant. After the plaintiff files with the clerk of the court his complaint, the clerk issues a summons that, together with a copy of the complaint, is served on the defendant(原告将诉状在法院书记员处立案后，该书记员即发出传票。传票和诉状的副本一起送达被告。). The summons notifies the defendant of the date by which he is required to file his response.

If the defendant has no basis to attack the sufficiency of the complaint, he may simply file an entry of appearance(登记到庭), which means that he admits the truth of all allegations in the complaint. In most cases, however, the defendant will file an answer either admitting or denying each material(实质性) allegation of the complaint. The answer will put in issue the allegations of the complaint that are denied. In addition to admissions and denials, the defendant can also make affirmative defenses and counterclaims(反诉) in the answer.

Upon receipt of the defendant’s answer, the plaintiff will, unless the applicable rules of procedure do not so require, file a reply that specifically admits or denies each new allegation in the defendant’s answer. Thus the allegations of each party are admitted or denied in the pleadings. Allegations of fact claimed by either party and denied by the other become the issues to be decided at the trial(一方当事人主张而另一方又否认的事项便成了有待审讯解决的争议。).

A defendant who files no answer to the complaint is in default, and a court may assume that he has admitted the allegations of the plaintiff and enter a default judgment against him.

Instead of admitting or denying the allegations of the complaint, the defendant may choose to challenge the complaint by a motion to dismiss. This motion may challenge the court’s jurisdiction over the subject matter or over the defendant’s person, the service of process (service of a summons), or venue. It may also be a motion to dismiss which challenges the legal sufficiency of the complaint. In the latter case, the defendant, for purpose of argument, accepts the facts alleged in the complaint but denies that they are legally sufficient to

30

English for the Legal Profession

sustain the claim of the plaintiff(在后一种情况中，被告为争论方便起见接受诉状中所称的事实但否认这些事实在法律上足以支持原告的主张。).

Different legal systems vary in their attitude toward motions to dismiss. But there are three general situations in which the defendant may challenge the legal sufficiency of the complaint. First, the complaint may clearly show that plaintiff’s injury is one for which the law furnishes no relief. Second, the plaintiff may have failed to include an allegation on a necessary part of the case. Third, the complaint is so general and confused that it does not give adequate notice of what plaintiff’s claim is.

If the motion to dismiss is denied, the defendant will then be granted time to answer the complaint. If the court allows the motion and dismisses the suit because the complaint is legally insufficient, the plaintiff will be given permission to file an amended complaint.

New words and expressions

file a pleading/lawsuit/legal document with (the court): 向法院办理立案，状纸或法律文书存档手续。

serve a summons/complaint/a legal document on: 向某人送达传票，起诉书，法律文书

put sth. in issue: 把某事作为有待庭审决定的分歧 be in default: 未到庭

default judgment 缺席判决

to enter a default judgment against sb. 作出对某人不利的缺席判决

challenge a complaint/the jurisdiction of the court… by a motion to dismiss 提出驳回动议表示对诉状或管辖权的异议

31

English for the Legal Profession

Chapter 12 Discovery

American civil procedure allows lawyers in civil suits to get information from the opposing party and from witnesses. The techniques for this purpose are called pre-trial discovery.

Discovery practices include deposing (questioning under oath宣誓证词) of other parties and witnesses; written questions answered under oath by the opposite party; compulsory physical examinations by doctors chosen by the other party in personal injury cases; orders for the production of documents; and serving of demands by one party on the other to admit facts under oath. These procedures allow a party to learn not only about matters that may be used as evidence, but also about matters that may lead to the discovery of evidence.

Discovery is a generic term for several methods of obtaining information from an opposing party or from witnesses. The chief method is to take depositions of parties and witnesses. In this procedure, the person whose deposition is to be taken is questioned by lawyers for each side through direct and cross examinations. The device is useful in finding information that is relevant to the case. The two parties almost certainly will want depositions taken of each other because the depositions of the parties are of particular importance. They are treated as admissions(供认不讳的事实), and can be used by their adversaries as evidence at trial.

The court usually takes no part in discovery procedures. However, if one party feels the other is making improper discovery requests, or is not reasonably responding to discovery requests, he may make a motion to the court and ask that the violating party be ordered to obey the discovery rules.

Discovery serves at least two purposes. First, it takes the surprise element out of litigation and ensures that the results of lawsuits are based on the merits of the controversy rather than on the ability or skill of counsel. Second, discovery encourages settlement by making all evidence available to both parties and by making each side fully aware of the strengths and weaknesses of both sides(调查取证使双方都能得到所有的证据，使各方清楚双方的优势和弱点，从而鼓励双方调解。). At the end of discovery, a pretrial conference between the lawyers and the judge is usually held. At this conference the pleadings, results of discovery, and probable evidence are reviewed in an attempt to settle the suit. The issues may be further narrowed, and the judge may even predict the outcome in order to encourage settlement. Today, a very substantial number of all lawsuits that are filed are settled sometime prior to trial. Discovery procedures contribute significantly to these settlements.

32