Welcome to the United States District Court for
the District of Idaho. We have prepared this handbook
specifically for the person who has chosen, for whatever reason,
to represent himself/herself as a party to a lawsuit: the pro se
litigant. The purpose of this handbook is to provide the pro se
litigant with a practical and informative initial resource that
will assist in the decision-making process and in the filing of a
lawsuit when choosing not to retain the aid of a licensed
attorney. Many reasons exist for filing a lawsuit pro se, for
example, the litigant might feel that the cost of an attorney is
The next three chapters of this handbook
provide information that you should consider before filing your
own lawsuit such as whether or not you have a case you can win,
the importance of legal counsel and the alternatives, and the
structure of the federal court system. If after considering this
information, you feel you have a case that should be filed in
federal court and you wish to represent yourself, additional
information has been provided to assist you in filing your case
and utilizing the appropriate rules of procedure for the United
States District Court for the District of Idaho.
We have also provided an overview of legal
research and a glossary of common and foreign words regularly
used in the legal field. These tools should not be considered the
last word, nor should this entire handbook be used as your only
resource. This handbook should be considered only as the first
step in filing your own lawsuit.
As Clerk of Court for the District of Idaho, my
deputy clerks and I are willing to assist you with questions
regarding the Local Rules of Civil Procedure and the Local Rules
of Criminal Procedure for the District of Idaho as well as the
Federal Rules of Civil Procedure and the Federal Criminal Rules
of Procedure. However, by law we cannot answer questions of a
legal nature. Do not hesitate to call on us regarding a
We wish you the very best in your endeavor. The
mission statement for the United States District Court for the
District of Idaho is as follows:
The mission of the United States District and
Bankruptcy Courts for the District of Idaho is to provide an
impartial and accessible forum for the just, timely, and
economical resolution of legal proceedings within the
jurisdiction of the courts, so as to preserve judicial
independence, protect individual rights and liberties, and
promote public trust and confidence.
Those of us employed by the District of Idaho
take this mission statement very seriously. In order to provide
the impartial and accessible forum that you are entitled to, the
federal courts for Idaho are housed in the main courthouse in
Boise and three satellite courthouses throughout the state. The
addresses and telephone numbers are as follows:
U.S. District Court - District of Idaho
550 West Fort Street
Boise, ID 83724
U.S. District Court - District of Idaho
250 S. 4th Avenue
Pocatello, ID 83201
U.S. District Court - District of Idaho
220 East 5th Street
Moscow, ID 83843
U.S. District Court - District of Idaho
205 N. 4th, 2nd Floor
Coeur d'Alene, ID 83814
THE FIVE REQUIRED ELEMENTS OF
There are five very important elements that
must exist before you can file a case in federal court. The
following is a summary of the things you should consider before
filing a case in federal court. This summary is not to be
considered the final word. Before continuing, you must understand
that even if you have met all five elements, there is always a
possibility that you may not win.
THE FIVE REQUIRED ELEMENTS OF A LAWSUIT
A. Real Injury or Wrong.
C. Statute of Limitations.
E. Facts and Evidence.
REAL INJURY OR WRONG.
Cases brought by persons without counsel
typically fall into two categories: civil rights violations and
A civil rights case involves a claim
seeking redress for the violation of a person's constitutional
rights. This type of claim is often brought under the federal
statute, 42 U.S.C. S 1983. Under this law, a person who acts
under color of state law to violate another's constitutional
rights may be liable for damages.
A tort is defined as a "private or
civil wrong or injury." It is distinguished from criminal
law because it is an injury against an individual and not the
state (city, county, or state government). If a person ran a
stoplight and hit your car, the state would ticket the driver for
running the stoplight but it would not be able to sue the driver
for the injuries received by the victim of the other car. That is
considered a private wrong or injury and it is the right of the
victim to file a civil suit against the driver seeking
damages for the injuries received.
There are three types of torts: intentional,
negligence, and strict liability. You cannot sue someone just
because you are angry at them; you have to have been injured in
some way. You can bring a tort action in federal court if a
violation of a federal law has occurred.
Jurisdiction is the authority given a
court to hear and decide certain cases. For a court to render a
valid judgment, it must have both jurisdiction over the subject
matter of the controversy and jurisdiction over the persons or
entities involved. The court system is described more fully in
Chapter IV of this handbook; however, to file a case in federal
court, you must meet at least one of two important criteria:
1. The case must deal with a "federal
question" of law; or
2. The parties to the case must be
residents of different states (known as diversity of
citizenship) and the monetary amount in controversy must
Federal courts enforce "federal law,"
that is, the United States Constitution and federal statutes
enacted by Congress. State courts enforce state laws. Sometimes
they overlap, such as in diversity cases. This is why it is
important that legal counsel is obtained as often as possible.
STATUTE OF LIMITATIONS.
A statute of limitations is that part of
the statute that sets a particular period of time within which a
suit can be filed. It begins to run when the injury or right has
been violated. Some examples are as follows:
1. Car accident or other personal injury: 2
2. Civil rights violation: 2 years
3. Contract dispute: 6 years
4. Medical malpractice: 2 1/2 years
Immunity prohibits you from suing a
person who is performing his/her duties as prescribed by law.
When a judge decides a case, he is immune from suit because he is
performing the duties directed by law. However, if a judge has
operated his car illegally and caused you to be harmed, you can
sue him for damages because driving his car does not fall under
the duties of being a judge.
Most government employees are immune from suit
if they are performing their assigned duties and are not aware of
a violation of the law.
You should realize that immunity may be a
defense that prevents a person who is sued from being liable.
There may be other legal defenses that the person can assert
which will also protect them from liability.
All judges are subject to the Code of Conduct
for United States Judges. The Clerk of Court and Clerk's Office
staff members are subject to the Code of Conduct for Judicial
Employees. Part of the codes of conduct prohibit Clerk's Office
employees from accepting any gift, without exception, from anyone
seeking official action from or doing business with the court or
from anyone whose interests may be substantially affected by the
performance or nonperformance of official duties. This
prohibition includes accepting any sort of holiday gift, whether
intended for the Clerk's Office as a whole or for a specific
Complaints about the performance or behavior of
Clerk's Office staff should be made to the Clerk of Court or to
one of the judges. Complaints about judges' decisions on
procedural matters or the merits of disputes can only be
addressed through the regular appellate process. Any person
alleging that a judge has engaged in conduct prejudicial to the
effective and expeditious administration of the business of the
courts, or that a judge is unable to discharge all the duties of
the office by reason of mental or physical disability may file a
complaint pursuant to the Rules of the Tenth Circuit Judicial
Council Governing Complaints of Judicial Misconduct or
FACTS AND EVIDENCE.
You cannot sue someone because you believe or
you have a feeling the person has violated your rights. You must
have facts to support your lawsuit such as the time and place of
the incident, witnesses who observed the behavior, and actual
articles of evidence such as a gun or a police report or other
documentary evidence. The burden of proof is on the plaintiff to win the case; and without factual evidence, the case
cannot be won.
It is very important that you have all five
required elements before you consider filing a case against
someone or some entity. After all of these elements are met, you
must still follow the procedures set out for the particular court
you will file your case with. In Chapter V of this handbook, we
will discuss the rules and procedures for filing lawsuits in the
United States District Court for the District of Idaho. If your
case needs to be filed in any other court, you should contact the
clerk's office of that court for information regarding local
rules and procedures for filing your particular case.
Chapter III deals with information regarding
representation by legal counsel. Please take time to read the
information provided. There are alternatives to filing a lawsuit
on your own, and you should give these alternatives your utmost
REPRESENTATION BY AN
ATTORNEY: IT'S IMPORTANT
This handbook was developed to address the
needs of the litigant who wishes to file a
lawsuit pro se, without the aid of an attorney. However, we feel
it is very important that the pro se litigant understand that
there are alternatives to representing yourself if you are
indigent. Additionally, there are matters that are extremely
complex and each matter deserves appropriate representation.
In a criminal case, a defendant is entitled to
legal counsel by the United States Constitution and one can be
provided if indigence is shown on the part of the defendant.
However, in a civil case, the plaintiff is not entitled to an
attorney. There are organizations that can help obtain counsel in
civil matters for nominal fees or even on a volunteer basis. The
Idaho State Bar has a referral service that lists attorneys who
belong to the Idaho Volunteer Lawyers and they are willing to
help indigent parties in several different ways. Legal Aid
Services is also available as well as the American Civil
Liberties Union. There are also attorneys who would be willing to
represent you on a contingent fee basis where the attorney
collects a fee only if money is won in the suit.
In Idaho, the telephone numbers to call are:
Idaho State Bar: (208) 342-8958
Idaho Legal Aid Services, Inc.: (208) 345-0106
American Civil Liberties Union: (208) 344-5243
A. ALTERNATIVES TO LITIGATION IN FEDERAL COURT.
Under the Civil Justice Reform Act of 1990, the
United States District Court for the District of Idaho has
adopted the concept of Alternative Dispute Resolution (ADR). ADR
provides options of resolving disputes before and/or after a
lawsuit is filed. There are many forms of ADR, and the following
is a description of the four basic forms:
A dispute resolution process in which one or more arbitrators
issue a non-binding judgment on the merits after an expedited,
adversarial hearing. The arbitrator’s non-binding decision
addresses only the disputed legal issues and applies legal
standards. Either party may reject the non-binding ruling and
request a trial de novo in district court within 30 days of the
arbitrator’s decision. If they do not request trial de novo
and do not attempt settlement, the arbitrator’s decision
becomes the final, non-appealable decision.
2. Mediation: A
flexible, non-binding dispute resolution process in which an
impartial neutral third party--the mediator--facilitates
negotiations among the parties to help them reach settlement. A
hallmark of mediation is its capacity to expand traditional
settlement discussions and broaden resolution options, often by
going beyond the legal issues in controversy. In the District of
Idaho, all civil cases except prisoner petitions, Social
Security, student loan recovery, Medicare, forfeiture, Bankruptcy
appeals, federal tax suits, Federal Tort Claims Act cases in
excess of $1 million, cases involving Temporary Restraining
Orders, Preliminary Injunctions or other extraordinary injunctive
relief will be automatically assigned to mediation. In addition,
all Bankruptcy adversary proceedings and contested cases shall be
eligible for assignment to mediation. A party will be allowed to
“opt out” of the mediation process only upon
successfully demonstrating to the Court by motion that
“compelling reasons” exist as to why this mediation
should not occur or could not possibly be productive. Mediation
is governed by General Order #130.
Pursuant to Local
Rule 68.1, Settlement Conferences, the
Conference: are required to explore the
possibility of settlement prior to trial. At any time after an
action or proceeding is at issue, any party may file a request
for, or the assigned judge on his own initiative may order a
settlement conference. A conference is then held before an
assigned judge who facilitates the parties to come to settlement.
All information provided to the settlement judge is confidential.
The purpose of ADR is to provide an incentive
for the speedy, fair, and economical resolution of controversies
by informal procedures while preserving the right to a
conventional trial. There is no penalty for non-participation in
these programs or for not accepting the decision/award. Parties
retain the right for a trial de novo.
United States Arbitration & Mediation of
Idaho provides information and facilitation of the above
alternatives prior to filing a lawsuit in federal court. Its
address and telephone number are as follows:
P. O. Box 7803
Boise, ID 83707
B. NECESSITY OF EXHAUSTING AVAILABLE REMEDIES.
You should be aware that, in some instances, it
is necessary for you to pursue all remedies that may be available
before you can pursue a claim in court. There are two areas in
particular where this is likely to arise: (1) if you are
appealing an agency decision, or (2) if you are seeking a writ of
habeas corpus in the federal court.
Administrative Grievance Procedures.
Often times people want to appeal the decision
of some governmental agency that affects them. An example of this
is in the area of Social Security benefits.
If you want to appeal the denial of some benefit that is provided through an
agency of the United States government or the state of Idaho, you
must pursue all of the administrative procedures which are set up
by the agency before you can bring a lawsuit. Only after you have
pursued and exhausted the administrative procedure will the court
have jurisdiction to hear a claim.
2. Petition for Writ of Habeas Corpus.
A person who is incarcerated or is otherwise in
custody pursuant to court order may wish to challenge the fact or
duration of his confinement. Such a challenge would be brought as
a petition for writ of habeas corpus against the person or entity
who holds them in custody, e.g., state or county. If the person
can successfully show that a constitutional right was violated,
which would have otherwise prevented the incarceration
("fact of incarceration") or the duration of the
incarceration the court will grant a writ of habeas corpus.
However, before such a petition can be filed in
the federal court, the petitioner must pursue and exhaust all
available state law remedies. This means that if you want to
challenge a conviction or a sentence, you must pursue your right
of appeal under Idaho law. This may be accomplished in two ways:
(1) the direct right of appeal to the Idaho Supreme Court, or (2)
by filing a petition for post-conviction relief in the state
district court followed by an appeal to the Idaho Supreme Court.
Only after you have fully pursued the available state law
remedies will you be eligible to pursue a federal petition for
writ of habeas corpus.
C. ATTORNEY FEE SANCTIONS AND HOW THEY APPLY TO THE
PRO SE LITIGANT.
Pro se litigants are subject to the same
sanctions as licensed attorneys. Pursuant to Local Rule 1.3, Sanctions:
(a) The court may sanction for violation of any
local rule governing the form of pleadings and other papers filed
with the court only by the imposition of a fine against the
attorney or a person proceeding pro se.
(b) Other sanctions for non-technical
violations are provided through the Federal Rules of Civil
Procedure including but not limited to imposition of costs,
allowance of attorney fees, dismissal or default in the action,
contempt proceedings, and suspension or disbarment of counsel.
In many cases, the prevailing party may be
awarded costs to be paid by the non-prevailing party under
(a) Within ten (10) days after entry of
judgment, under which costs may be claimed, the prevailing party
may serve and file a cost bill requesting taxation of costs
These costs shall include clerk's fees and
service fees; trial transcripts; deposition costs; witness fees;
mileage and subsistence; exemplification and copies of papers;
maps, charts, models, photographs, summaries, computations, and
statistical summaries; interpreter fees; docket fees; and other
items with prior court approval.
Local Rule 54.3, Award of Attorney Fees, states that "attorney
fees will not be treated as routine items of costs. Attorney fees
will only be allowed upon an order of a judge of the court after
such fact finding process as the judge shall order." Rule 54.3 sets out the requirements for petitioning the court for
an award of award fees; and after the petition is filed by the
prevailing party, the other party has fourteen days to object to
As a pro se litigant, you must remember that if
you are not the prevailing party in your lawsuit, you could be
required to reimburse the other party(ies) for their costs and
attorney fees, subject to the fact finding of the judge.
NOTE: The following paragraph is quoted from
the Federal Rules of Civil Procedure:
Every pleading, motion, and other paper of a
party represented by an attorney shall be signed by at least one
attorney of record in the attorney's individual name, whose
address shall be stated. A party who is not represented by an
attorney shall sign the party's pleading, motion, or other paper
and state the party's address. . . . The signature of an attorney
or party constitutes a certificate by the signer that the signer
has read the pleading, motion, or other paper; that to the best
of the signer's knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not
interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed,
it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant. If
a pleading, motion, or other paper is signed in violation of this
rule, the court, upon motion or upon its own initiative, shall
impose upon the person who signed it, a represented party, or
both, an appropriate sanction, which may include an order to pay
to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading, motion,
or other paper, including a reasonable attorney's fee.
THE STRUCTURE OF THE COURTS OR
SHOULD THIS CASE BE FILED IN STATE OR FEDERAL COURT?
There are two court systems in the United
States: the state courts and the federal courts. The state courts
typically hear matters relating to civil, criminal, domestic
(divorce and child custody), probate, and property in accordance with the laws of each
state. Matters typically heard by the federal courts involve
violation of federal laws; admiralty and maritime matters; United
States patent, trademark, and copyright matters; bankruptcy
proceedings; proceedings against ambassadors, consuls, and
ministers. These matters usually fall into two main categories:
(1) federal question cases -- cases which arise under the
Constitution, laws, or treaties of the United States; and (2)
diversity cases -- civil matters arising between parties who are
citizens of different states and the amount in controversy
Remember, in Chapter II we discussed the five
required elements of a lawsuit. Before filing a case in a federal
court, you must decide if the court has jurisdiction.
Jurisdiction is the authority given a court to hear and decide
certain cases. The United States Supreme Court is given its
authority by Article III of the United States Constitution. There
may be instances when the United States Supreme Court might
review a judgment rendered by a state court, but those instances
are rare, occurring only when there has been a final judgment or
decree of the highest court of the state in which a decision
could be had involving a substantial federal question. Normally,
the United States Supreme Court reviews judgments rendered by the
United States Courts of Appeals, of which there are thirteen
federal judicial circuits. The United States Supreme Court has
original jurisdiction over matters involving treason and
The following are all of the other federal
courts which are established and given their authority by acts of
Congress enacted under constitutional authority.
o United States Courts of Appeals:
- The Courts of Appeals for the District of
Columbia and for the First through the Eleventh Circuits hear
appeals from the federal district courts, bankruptcy courts, and
tax courts. They also review some decisions of various federal
- The United States Court of Appeals for the
Federal Circuit hears appeals from final decisions of federal
district courts for civil actions arising under any Act of
Congress relating to patents, plant variety protection,
copyrights and trademarks, including claims of unfair competition
when joined with substantial and related claims dealing with
patents, copyrights, etc. as well as the final decisions of the
district courts and the United States Claims Court where the
United States is sued as defendant, and appeals from decisions of
the United States Court of International Trade, and United States
Patent and Trademark Office, the United States International
Trade Commission relating to unfair import practices, and
decisions by the Secretary of Commerce relating to import
tariffs, among others.
o United States Court of Military Appeals. This
court hears appeals from court martial decisions. There is no
further appeal from this court.
o United States Claims Court. This court hears
certain kinds of actions against the United States Government,
except those involving tort claims under the Federal Tort Claims
Act. These cases may be appealed to the United States Court of
Appeals for the Federal Circuit.
o Tax Court of the United States. This court
hears cases concerning the federal tax laws. Its decisions may be
appealed to the United States Court of Appeals.
o United States Court of International Trade.
This court hears cases concerning the federal tariff laws. Its
decisions may be appealed to the United States Court of Appeals
for the Federal Circuit.
o United States Bankruptcy Courts. These courts
hear all matters pertaining to bankruptcy and financial
reorganization. Their decisions may be appealed to the United
States District Court and, in some cases, to the appropriate
United States Court of Appeals.
o United States District Courts. These courts
try both criminal and civil actions and sit as admiralty courts.
They may also review decisions of federal administrative
agencies. There is at least one United States District Court in
each state. Their decisions may be appealed to the appropriate
United States Court of Appeals.
NOTE: The United States District Court for
the District of Idaho is located in the Ninth Circuit of the
United States Courts of Appeals.
The federal district courts have both civil and
criminal jurisdiction. They have original jurisdiction in the
following types of actions:
o Civil actions arising under the Constitution,
laws, or treaties of the United States ("federal
o Actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between citizens of different states; citizens of a
state and foreign states or citizens or subjects thereof; or
citizens of different states in which foreign states or citizens
or subjects thereof are additional parties ("diversity"
o All criminal offenses against the laws of the
o Admiralty, maritime, and prize cases.
o Bankruptcy matters and proceedings.
o Actions of interpleader involving money or
property of value of $500 or more claimed by citizens of
o Action to enforce, enjoin, set aside, annul,
or suspend, in whole or in part, any order of the Interstate
o Actions or proceedings arising under any act
of Congress regulating commerce or protecting trade and commerce
against restraints and monopolies ("antitrust" cases).
o Any civil action arising under any act of
Congress relating to the postal service.
o Actions arising under any act of Congress
providing for internal revenue or revenue from imports or tonnage
except matters within the jurisdiction of the United States
o Any civil action authorized by law to be
commenced by any person dealing with civil rights, election
disputes, and voting rights.
o All civil actions, suits, or proceedings
commenced by the United States or by any agency or officer
o Actions for recovery of interest revenue tax
or actions not exceeding $10,000, founded upon the United States
Constitution, any action of Congress, or any regulation of any
executive department (The United States Court of Claims has
concurrent jurisdiction in these actions).
o Actions for the partition of lands where the
United States is one of the tenants in common or is a joint
o Actions involving national banks and other
o Actions involving labor disputes which are
authorized by specific statutes to be litigated in federal court.
o Aliens' actions for torts.
o Tort claim actions against the United States.
o Actions and proceedings against consuls or
vice consuls of foreign states.
o Actions on bonds executed under any law of
the United States (state courts have concurrent jurisdiction in
o Actions involving Indian allotments or land
grants to the states.
o Actions involving injuries protected by
specific federal laws (i.e., the Federal Employers Liability
o All proceedings to condemn real estate for
the use of the United States or its departments or agencies.
o Actions involving use or management of the
public lands of the United States.
o Actions involving regulations by the United
States of environmental quality.
RULES AND PROCEDURES FOR
FILINGA CASE IN DISTRICT COURT
Whether you are a party to a lawsuit, a person
representing yourself in a lawsuit, or an attorney representing a
party in a lawsuit, you are subject to the rules of procedure for
any court in which your case is filed. The federal courts are
governed by the Federal Rules of Civil Procedure (Fed. R. Civ.
P.) and the Federal Rules of Criminal Procedure (Fed. R. Cr. P.)
as well as other rules of procedure regarding other areas such as
evidence, appeals, etc. No matter what document or procedure you
are involved with, you must follow the particular rule or rules
that govern the matter.
In the United States District Court for the
District of Idaho, all procedures are governed not only by the
federal rules of procedure listed above but also by the Local Rules of Civil Procedure and the Local
Rules of Criminal Procedure. The
numbering system of the Local Rules coincides with the numbering
system of the federal rules for easy reference. Copies of the
federal rules can be found at the Idaho State Law Library, 450
West State Street, Boise, Idaho, or at the Ninth Circuit Law
Library located in the Federal Building and U.S. Courthouse, 550
West Fort Street, Boise, Idaho.
Copies of the Local Rules for the District of
Idaho can be obtained at any of the offices listed in Chapter I
of this handbook. As a pro se litigant, you are responsible for
becoming familiar with the court's local rules and procedures.
Issued by the Clerk at
the time of filing the complaint, the summons is served
on the defendant with a copy of the complaint. A Waiver
of Service of Summons can also be served on the defendant
with a copy of the complaint. (Forms Index: C.4 and C.5)
The summons informs the defendant that they must answer
the allegations in the complaint or judgment will be
entered in favor of the plaintiff.
Issued with the seal of
4. Motions and proposed
To seek an order from the
court on some particular matter during the pendency of a
case. Either party may bring.
Received by the Clerk and
forwarded to the Judge for review.
disclosure of expert testimony, notices of depositions,
depositions, interrogatories, requests for documents,
requests for admission, and answers and responses thereto
shall be served upon other counsel and parties but shall
NOT be filed with the court unless on order of the court
or for use in the proceeding.
4. SCHEDULING CONFERENCE FORM/LITIGATION PLAN
(When case is assigned to Article III Judge.)
a. Scheduling Conference Form/Litigation
b. Notice of Availability of the Magistrate
Judge to Exercise Civil Jurisdiction and Appeal Option
c. Waiver of Service
d. Notice of Lawsuit and Request for Waiver
of Service of Summons
e. Waiver of Service of Summons
5. NOTICE OF ASSIGNMENT TO MAGISTRATE JUDGE
a. General Order No. 98
b. Scheduling Conference Form/Litigation
c. Scheduling Conference Form/Litigation
d. Notice of Lawsuit and Request for Waiver
of Service of Summons
e. Waiver of Service of Summons
6. INSTRUCTIONS FOR FILING A COMPLAINT UNDER
THE CIVIL RIGHTS ACT, 2 U.S.C. SECTION 1983
7. CERTIFICATE OF SERVICE BY MAIL
to be used by Prisoner Pro Se Litigants:
8. APPLICATION TO PROCEED IN FORMA PAUPERIS,
SUPPORTING DOCUMENTATION AND ORDER
9. INSTRUCTIONS FOR FILING A COMPLAINT BY A
PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. SECTION 1983
10. PETITION UNDER 28 U.S.C. SECTION 2255 FOR
WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY
11. PETITION UNDER 28 U.S.C. SECTION 2254 FOR
WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
The Local Rules of the District of Idaho cover
all phases of trial preparation from the pretrial conference to
the satisfaction of judgment. The following information is not
meant to be all inclusive and you should always consult the
Federal Rules of Civil Procedure and the Local Rules of the
United States District Court for the District of Idaho to find
out what the court requires of all parties when filing suit and
participating in trial. Local Rule 16.1 sets
out those pretrial requirements that all parties should be aware
of. At the time of filing the initial complaint, parties must
request a jury trial or court trial.
Pretrial Conference and Order
Prior to the actual trial, a pretrial conference is usually held between the trial judge and counsel to
determine if all discovery has been completed, what exhibits and
witnesses each side might use during the trial, the approximate
length of time that will be necessary for the trial, and what
ground rules the judge will require before, during, and after the
trial. After the conference, a pretrial order is usually prepared
which sets out the above.
B. The Trial-- The Role of the Judge and Jury
A trial is defined as "a judicial
examination of issues between parties to an action." The
parties each get the opportunity to present their side of the
case, and the judge and jury (if the trial is a jury
trial) are responsible for entering a verdict and judgment based on the evidence
and arguments presented. It is the judge's duty to see that only
proper evidence and arguments are presented. In a jury trial, he
also instructs the jury which will be called on to make decisions
regarding those matters at issue and then a judgment is entered
based on the verdict reached by the jury.Local Rule 58.1.
If the parties have not requested a trial by
Rule 38.1, the judge becomes the
trier of law (the judge) and the trier of fact (the jury). The
judge then enters a Findings of Fact and Conclusions of Law,
sometimes prepared by the prevailing party, based on the evidence
and arguments presented and then a judgment is entered based on
those findings of fact and conclusions of law.
Selection of the Jury
A jury trial begins with the judge choosing
prospective jurors to be called for voir dire (examination). Local Rule 47.1. The
jury box shall be filled before examination on voir dire and the
Court will examine the jurors as to their qualifications. Not
less than five (5) days before trial, the parties are to submit
written requests for voir dire questions. Unless otherwise
ordered, six (6) jurors plus a number of jurors equal to the
total number of preemptory challenges which are allowed by law
shall be called to complete the initial panel. Local Rule 48.1. After voir dire of all prospective jurors, a jury of
six (6) is named and instructed by the judge regarding the issues
they will be deciding. Local Rule 51.1.
Peremptory challenges: Each party has been
given number of peremptory challenges established by law which
enable the parties to reject prospective jurors without cause.
This decision is based on subjective considerations of the
parties when they feel a prospective juror would be detrimental
to their side of this case.
Challenge for Cause: Either the plaintiff or
defendant may challenge a prospective juror for cause when the
prospective juror lacks a qualification required by law, is not
impartial, is related to either of the parties, or will not
accept the law as given to him by the court or other reasons
approved by the court..
After the jury is empanelled, each side may
present an opening statement. Local Rule 39.1. The plaintiff has the burden of proving that plaintiff
was wronged and suffered damages from such wrong and that the
defendant caused such damages; the plaintiff is therefore allowed
to present his statement first. This may be followed by a
statement by the defendant.
Testimony of Witnesses
After opening statements are given, testimony
of witnesses and documents are presented by each side, plaintiff
side to begin. Local Rule 43.1. Cross-examination is conducted by the other side after the initial
examination. If after a party has cross-examined a witness, the
other side has the opportunity to redirect examination in order
to requisition the witness on the points covered by the
If a witness testifies to one fact and a
statement or document in the files shows that testimony to be
contradicted, the document can then be used to question the
witness on the accuracy of the witness's statements. If the
evidence produced shows that the witness’s testimony is
false, the witness is considered impeached upon
F. Motions During the Course of the Trial
Before the closing arguments and up until the
time the case is sent to the jury for deliberation, certain
motions may be made during the course of the trial.
Motion in Limine: This motion is made prior to the jury
selection and it requests that the judge not allowed certain
facts to be admitted into evidence--such as insurance
policies, subsequent marriages, criminal records, and other
matters which are either not relevant to the particular case
involved or which might influence the jury unfairly.
2. Motion for Instructed or Directed Verdict:
This motion is usually made by the defendant at the close of
evidence presented by the plaintiff’s side and is based
on the premise that the plaintiff has failed to prove his
case. If it is granted, the court instructs the jury to
render a verdict for the defendant and against the plaintiff,
and the trial is concluded in the defendant’s favor. If
the court denies the motion, the trial continues with
presentation of the defendant’s side.
Motion for Mistrial: Either party can move for a mistrial
if, for example, during the course of the trial certain
matters which are not admissible such as those mentioned in a
motion for limine are presented by any witness either
purposely or unintentionally in the presence of the jury. If
the jury grants the motion for mistrial, the trial is
immediately ended and the jury is dismissed.
Objections: During the examination of a witness, one side
may “object” to the questioning or testimony of a
witness or presentation of evidence if the attorney feels the
testimony or evidence about to be given should be excluded.
If the objection is sustained by the judge, that particular
testimony or evidence is excluded. If the objection is
overruled by the judge, the testimony or evidence may be
given. A ruling on an objection may be the basis for appeal;
however, in order to preserve the right to appeal, a party
must ask the court recorder that that portion of the
trial--the question/evidence, the objection, and the ruling--
be transcribed in order to preserve the record for
After each side has presented its evidence, the
plaintiff may be allowed to present some rebuttal testimony.
Closing arguments to the jury set out the facts
that each side has presented and the reasons why the jury should
find in favor of the client. Time limits are sometimes set by the
court for closing arguments, and each side must adhere to the
specified time. The plaintiff presents closing argument first and
may present rebuttal to defendant’s closing argument. Local Rule 39.1.
Charge to the Jury
After each side presents testimony and
evidence, the jury delivers his charge to the jury, usually in
the form of written instructions. Each side may present proposed
written instructions to the judge for consideration. After the
judge has considered all proposed instructions, the jury is given
each instruction which sets forth the jury’s responsibility
to decide the facts in light of the applicable rules of law. The
jury then returns a verdict granting favor to the plaintiff or
defendant and assesses damages to be awarded, if any.
If a jury is unable to reach a verdict, in
which case the judge declares a mistrial, the case must be tried
again before a new jury. A jury which cannot reach a verdict is
usually referred to as a hung jury.
K.Preparation of Judgment
Following the entry of the jury’s verdict,
either side may give notice of its intention to appeal. The
judgment is prepared by the prevailing side and presented to the
court for entry. These post-trial motions usually set out why the
jury’s verdict should be disregarded or why the judgment
submitted by the other side should be more in keeping with the
jury’s verdict. Local Rule 58.1.
If the jury or the judge awarded costs to the
prevailing party, it is necessary to prepare a bill of costs
incurred in the suit for the approval of the court. Costs are
specified by Local Rule 54.1as to
what is allowable, and only those costs listed as allowable may
be recovered by the prevailing party. Within fourteen (14) days
after entry of judgment, under which the costs may be claimed,
the prevailing party may serve and file a cost bill requesting
taxation of costs itemized thereon.
Claims for attorney fees will not be treated as
routine items of costs. Attorney fees will only be allowed upon
an order of a judge of the court after such fact finding process
as the judge shall order. Local Rule 54.3.
Satisfaction of Judgment
Whenever the amount directed to be paid by any
judgment or order, together with interest (if interest accrues)
and the clerk’s statutory charges, shall be paid into court
by payment to the clerk, the clerk shall enter satisfaction of
said judgment or order. The court will enter satisfaction of any
judgment upon receipt of an acknowledgment from the prevailing
party that all awards have been satisfied. Local Rule 58.2.
LEGAL RESEARCH -- AN OVERVIEW
It is not the purpose of this chapter to teach
the pro se litigant legal research and writing nor is it our goal
to sort out the complexities of applying the law, whether it be
statutory or case law, to the facts of a particular case. The law
prohibits personnel in the Clerk's office from providing
information regarding the application of the law to the facts of
any case. The intention here is to provide information that is
basic to a law library to be used as a guideline.
Just as there are certain standards of
procedure for filing documents with the Clerk's office, there are
certain standards for citing authority when applying the law to
the facts of a certain case. The most common source of citation
standards is A Uniform System of Citation, Fifteenth Edition,
published and distributed by The Harvard Law Review Association,
Cambridge, Massachusetts. It is more commonly referred to as
"The Bluebook" and sometimes as the "The Harvard
Citator." All of the information required for proper
citation format can be found in this one text.
Authority is the information used to convince a
court how to apply the law to the facts of a case. Legal
authority is divided into two classes -- primary and secondary.
There are two sources of primary authority: (1) constitutions,
codes, statutes, and ordinances; and (2) court decisions,
preferably from the same jurisdiction where the case is filed.
Secondary authority, which is not cited except in certain
circumstances, is found in legal encyclopedias, legal texts,
treatises, law review articles, and court cases in other
- Primary authority is the most accepted form
of authority cited and should be used before any other authority.
1. Constitutions, codes, statutes, and
ordinances are the written laws of either the United States, the
individual states, counties, and municipalities. These laws are
enacted by the United States Congress, state legislatures,
commissioners, and city councils.
2. When a particular case is decided, it
becomes "precedent" which means that it becomes an
example or authority for an identical or similar case or a
similar question of law. Court decisions are the basis for the
system of stare decisis. These decisions are published in what is
called the National Reporter System which covers cases decided by
the United States Supreme Court down to the individual state
district courts. These reporters each have their own
"digest" system which serves as an index by subject on
points of law. There are many reporters in this system and they
can be found in most law libraries.
- Secondary authority is used to obtain a broad
view of the area of law and also as a finding tool for primary
authority. Secondary authority is not cited to the court unless
there is no other authority available.
1. Legal encyclopedias contain topics which
are arranged alphabetically and are substantiated by
2. Treatises are texts written about a
certain topic of law by an expert in the field.
3. Law review articles are published by most
accredited law schools and are sometimes a broad diagnosis of a
4. The Index to Legal Periodicals provides the
only book reviews in the law and also provides case comments,
which cases are listed in the "Table of Cases."
5. American Law Reports Annotated (A.L.R.) is a
collection of cases on single narrow issues. You must be aware
that A.L.R. must be constantly updated.
6. Restatements are publications compiled from
statutes and decisions which tell what the law is in a particular
7. Shepard's Citations is a large set of law
books which provide a means by which any reported case (cited
decision) may be checked to see when and how another court (the
citing decision) has cited the first decision. All cases must be
checked to make sure another court has not reversed or overruled
your cited decision.
Some basic rules of legal research are as
1. Give priority to cases from your own
2. Search for the most recent ruling on a
3. Check the pocket part in the back of
almost all law books. The pocket part is the most frequently
used device for updating law books.
4. Pay attention to dates on books, i.e.,
copyright date and date of pocket parts.
5. Be aware of "2d" and
"3d" citations. They distinguish one series from
6. All legal citations are written with the
volume number first, an abbreviation of the title, and the
page number, e.g., 152 P.2d 967 or 144 A.L.R. 422.
7. Shepardizing your citations can save a lot of embarrassment
As state above, the above information is not
meant to be a complete or comprehensive guide to the law library
or to legal research and writing.