Ch8. Civil Procedure & Non-Adversarial Filings — Core Procedural Law

Civil Litigation Procedure

Complaint Filing:
Parties, statement of claim, prayer for relief
Filing fee + service of process on defendant

Pleadings and Motions:
Party autonomy: parties control claims and evidence presented
Court neutrality: court decides only issues raised by parties

Evidence:
Documentary, testimonial, expert, demonstrative
Burden of proof: party asserting the claim

Judgment:
Grant (liability found), deny (no liability), or dismiss
Claim preclusion: final judgment bars re-litigation of same claim

Appeals:
Notice of appeal: 30 days from final judgment (federal); varies by state
Appellate court reviews legal error (and sometimes factual findings)

Judgment Enforcement

Judgment Creditor's Tools:
Writ of execution on real property
Writ of execution on personal property
Garnishment of bank accounts or wages

Real Property Execution:
Judgment lien recorded in county of debtor's property
Sheriff's sale → proceeds distributed to creditors

Personal Property / Bank Levy:
Sheriff or marshal levies on debtor's accounts or tangible assets
Wage garnishment: limited to 25% of disposable earnings (CCPA)

Provisional Remedies:
Attachment: pre-judgment seizure of property (monetary claims)
Injunction / TRO: pre-judgment restraint on conduct (non-monetary claims)

Non-Adversarial Court Filings (Probate & Special Proceedings)

Characteristics:
No opposing parties; court exercises supervisory role
Probate court oversees estates, guardianships, conservatorships

Common Proceedings:
Probate of a will / intestate estate administration
Disclaimer of inheritance
Declaration of death in absentia (after 5–7 years missing)
Guardianship / conservatorship petitions

Family Court Matters:
Family court jurisdiction
Dissolution of marriage, custody, child support, spousal support

Escrow and Deposit Services

Escrow Purposes:
Closing escrow: holds funds/documents during real estate sale
Security deposit: held pending performance of obligation
Court deposit: funds held pending resolution of dispute

Effect of Closing Escrow:
Title and funds transfer simultaneously
Escrow holder (neutral third party) disburses per instructions

Document Preparer's Role in Escrow:
Draft escrow instructions and closing documents
Prepare deeds and recording packages for delivery through escrow

Key Concept Cards

Enforcement Tools = Writ, Garnishment, Lien ★★★★★ : Judgment creditor uses writ of execution, wage garnishment, or recorded lien to collect. Memory hook: enforce = writ / garnish / lien

Attachment = Money Claims; Injunction = Non-Money Claims ★★★★★ : Choose provisional remedy based on type of relief sought. Memory hook: attach = money; injunct = non-money

Appeal Deadline = 30 Days (Federal) ★★★★☆ : Notice of appeal must be filed within 30 days of final judgment in federal court. Memory hook: appeal = 30 days

Practice Quiz

Q. What requirements must be met for a court to order a pre-judgment attachment?

The plaintiff must show: (1) a probable right to recover on the claim; (2) a specific statutory ground for attachment (e.g., defendant is concealing assets or a non-resident); (3) adequate security (undertaking/bond) posted to protect defendant if attachment is wrongful. After attachment, defendant may move to quash. If plaintiff wins, the attachment converts to a lien supporting execution.

Q. What court-related tasks can a paralegal or document preparer handle without an attorney?

Document preparer scope: draft and file complaints, motions, and routine pleadings for clients who self-represent (pro se); prepare and record deeds and other instruments; prepare escrow closing packages; prepare probate petitions for pro se filers. Cannot do: appear in court on behalf of a client, give legal advice, or sign documents as counsel. In practice, probate, recording, and escrow prep are primary revenue sources for independent document preparation businesses.