November 3rd Notes

Fundamentals of Legal Practice
November 3, 2009

Midterm 11/12
Pleadings  11/24

Pleadings: Notice Pleadings, the more things you put in, the more you must prove
--make it short and precise

Midterm: 3 essays, intentional tort, negligence, ethics, will tell us the chapters he is picking from, focus on ideas and concepts, through Chapter 9

On Final: new material, no review of past material

-With material today, just know the terms and basic ideas

Chapter 7          Page 253
-Opening Statements
-Plaintiff almost always goes first, case in chief
-Called direct examination
-Called cross examination
-Then the defendant does the same

-You can only exam on the issues brought up
-Cross examination is limited by the issues in direct
-Cross is more narrow in scope
-You can redirect and recross as things get more specific

-Then closing argument what the evidence, witness and testimony's means
-Plaintiff gets the final closing (gets 2 closes)


Civil Discovery       Chapter 8
-is a two way street, you must play defense and offense

3 primary purposes:
1. To prepare the case more thoroughly
2. Clarify issues
3. To locate, obtain, and preserve evidence

-reasonably calculated to lead to discoverable (admissible) evidence
-no hearsay rules in discovery
-discovery is very broad

Privileged information
--doctor/patient , spousal immunity, etc.
--these are privileged, you can not ask about them
--the law thinks these relationships are more important than the truth
-----you can not violate this

5th Amendment is not absolute
Can not be granted for:
-granted immunity
-been convicted previously of the crime
-if the statute of limitations has run

-If it is irrelevant information you can not claim discovery

-"Work Product": the thoughts and mental strategies of the attorney, not everything he does (pleadings are not) it can not be used

-Testimony of experts who will not be called as witnesses can not be used for discovery

-Annoyance, embarrassment, oppression, you can not abuse discovery and may subject you to tort liability

Federal Rule 26 (for later use)
-mandatory disclosure

Tools of Discovery    Page 271
1. Depositions ("Depos") CR 30
    -nonparty or party
    -oral questioning, under oath with a court reporter
    -in attorney office, questioning witnesses
    -most powerful and useful
    -but should not use all the time
    -can take it anywhere
    -they can be expensive and hard to coordinate
    1. Only discovery device you can use against a non-party
    2. Only tool that is spontaneous   

Page 276, 277
-To use for pleadings, do not selectively bold face

2. Interrogatories ("Rogs") CR 33
    -party only
    -written questions to be answered under oath in 30 days
    -done with lawyer
    -inexpensive, easy to produce
    -good background information   
    -Federals limit to questions to 25
    -States are changing to limitations due to abuse
    -can't have too many subparts (must be discrete)
    -Really need to watch your wording (play 20 question) page 285

3. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes (RTP) CR 34
    -party only
    -Court rule 34  Request for Production
    -production of documents and things
    -you can examine physical things, you can enter property to examine large things

4. Physical and Mental Examinations CR 35
    -party only
    -you can only do them if their mental/physical state is an issue
    -personal injury, a doctor you select

5. Requests for Admission (RTA) CR 36
    -partly only
    -narrows the issues of the trial
    -written request to admit or deny matter pertaining to the case
    -can make the trial easier and predictable

Sanctions
-for failure to cooperate with discovery
-heavy penalties for this action

Criminal Law
-Felony vs. Misdemeanor
    -felony are defined by term in prison, over a year, loss of civil rights
    -misdemeanor are 90 days to a year in a jail
-Mala in Se and Mala Prohibita Crimes
    -in Se crimes are inherently evil
    -Prohibita is protecting society or revenue raising

Mental State
-Intent does not equal Motive
    -motive is why you did it
    -intent is mental state   
        -knowing  (murder)
        -reckless   (manslaughter)
        -negligence
-all crimes have a mental state, they all have intent, it is a level of mental state
-motive is not always a part of every crime

Mens rea - a guilty act with a guilty mind (mental state)
Actus reus - a guilty act

Hate Crimes
    -punishing at a greater level if it is motivated by hate
    -works well from a societal point
    -What about as a lawyer?
        -at a legal level, it is difficult to deal with

Matthew Shephard - 1998 murder in WY for being gay, tortured into a coma
----killed by Aaron McKinney and Russell Henderson

-How do you prove that it was due to hate?
-Raise burden of prosecution
-Difficult to prove
-All crimes are hate crimes

-the legal support for your opinions
-make sure you can back up your choices
--look at the Amendments

-Do not have to prove why you did it, motive is not an element in any crime
-Just the intent (mental state is important)

Insanity    Page 302
-If you are insane you can not form mens rea, there is no crime no matter what the actus reus (the act) is
-insane, commit, not guilty
----if you regain your sanity you walk
-sane with the crime, then go insane, then you get tried

Accessory  Page 303
-Accessories before and after the fact
    -Dr. Mudd (doctor charged with Lincoln's conspiracy) for setting Booth's leg
    -"your name is mudd"

-Small children no mens rea
    -below 8
    -8 to 12 presumed no mental state
        -but state can rebutted to prove they have mens rea
    -Over 12
        -mens rea but may be juvenile court

The Insane
-very specific definition
-percentage plea bargain by reason of insanity 2/10th of 1%  -because of the definition

-The M'Naughten Rule: the inability to tell right from wrong

Other ruled used sometimes:
-used in NY
-Irresistible impulse test - knew it was wrong but could not stop myself

Page 308
Brady v. Maryland  1963
-turn over all inculpatory(guilty) and exculpatory (innocent) material to the defense
---State must show everything showing your innocence and guilt

Motion to Exclude (Suppress)
-4th Amendment (search warrants and evidence)
    -if 4th A. is violated
-penalty is to exclude the evidence found
-prior to 1961 Mapp v. Ohio 
    -some states had this rule, some did not
    -inform the jury of that fact instead
    -Thought she had bomb making material (misdemeanor) but had porn (at the time a felony)
    -made it mandatory to have exclusion in all states

Plea Bargaining
-in exchange for right to trial you plead guilty to a lesser offense
-90% of cases are plea bargained
-prosecutor has no power to make that deal, the judge must approve it
-usually approved
-dangerous felonies NO

Miranda v. Arizona  1966   5-4 vote
-Miranda warning - police must give you prior to custodial investigation
-unpopular since you are blocking confessions
-it is not voluntary unless they know their rights
-right to a lawyer
(signed Miranda cards)

Escobedo v. Ill.  1964
-if you already had an attorney, the lawyer has a right to be present