1D: The Anatomy Of A Case
1D1: How A Civil Case Works
Civil cases are governed by Rules of Procedure which include Local Rules, Rules of Civil Procedure, and on appeal, Rules of Appellate Procedure. They may also be affected by Supreme Court Rules which govern the conduct of all lawyers.
A civil case begins when the Plaintiff files a Complaint. The Complaint should state the facts about which the Plaintiff is complaining, why the Plaintiff thinks he or she has been wronged, and the relief sought.
The parties engage in a process called discovery in which they try to find out the facts known by the other side and by witnesses. Discovery may include written questions or requests for documents, as well as requests to admit certain facts as true.
At various times during the case the parties may file motions. A motion is a request to the court to enter an order. The motion may be one to dispose of the case based on a claim that one party is entitled to win as a matter of law, or that based on discovery the facts show the party is entitled to win. It may also be a request for an order requiring a party to do something such as provide complete answers to a discovery request or to answer certain questions.
Motions can be a very useful source of background material about a case. They often give you both sides’ positions and they may contain useful documents. Because motions are filed with the court they are privileged documents and you have a defense to any action for defamation as long as you quote from them fairly and accurately. Remember, however, that the privilege only supplies after the motion has been file stamped in the clerk’s office.
1D2: How A Criminal Case Works
Criminal cases are regulated by the Constitutions of the United States and the State of Nevada, by statutes and Rules of Criminal Procedure, and by additional rules governing the conduct of attorneys.
A criminal case begins when an “information” is filed charging a crime, or when a Grand Jury issues an Indictment. Grand Jury Indictments must be utilized to charge a capital or infamous crime charged by the United States.
Nevada permits prosecutors to charge crimes upon an information as long as a preliminary examination of the charge has taken place before a justice of the peace or a magistrate. NRS §173.035(1)(a). Under some circumstances the case may proceed “…upon the affidavit of any person who has knowledge of the commission of an offense.” NRS §173.035(2).
The process of obtaining information from the prosecutor in a criminal case is also called discovery, but it is narrower than in civil cases. In a criminal case the prosecutor has a duty to disclose known facts and information which may assist the accused’s defense. Documents or other tangible objects may be compelled and depositions may be taken, however, a court order is necessary. NRS §174.175.
By motion, defendants can also obtain copies of recorded statements made by them, or results of physical or mental examinations, scientific tests or experiments in the prosecution’s possession. Defendants cannot get certain documents prepared by state agents in connection with investigations or prosecution of cases, or certain witness statements. NRS §174.245.
Criminal cases include a procedure called an arraignment at which a plea is entered. In Nevada, a court may accept only pleas of guilty, not guilty, nole contendere or not guilty by reason of insanity. Bail is then set depending on the risk of flight by the accused. Preliminary hearings are conducted to determine if probable cause exists to bind the defendant over for trial.
Most motions in criminal proceedings are made before trial. They include motions to suppress evidence, for a transcript of former proceedings, for a preliminary hearing, for withdrawal of counsel, or for determination of other issues.
Grand Jury proceedings are secret by statute. Indictments and informations are publicly filed documents. The contents of informations must include the names of all witnesses known to the District Attorney at the time of the filing and other names must be added before trial as they are learned. The information must be a plain, concise and definite written statement of the essential facts constituting the offense charged. NRS §173.035.