Litigation Basics
January 28, 2010
NEWS
-WSPA dinner tomorrow night 5-8:30pm Red Lion Inn
-BRING RESUMES!
Guest Speakers Tonight
Stephanie
-Works at Stoel, Rives
Litigation, Corporate Licensing
Briana
-Works at King County Drug
Diversion/Felonies
Anita
-Works at Marler, Clark
Food Borne Illness, Litigation
Elyse
-Works at Cole, Lether
Insurance defense
Headed to law school
Poonam
Legal voice volunteer
Thursday, January 28, 2010
Wednesday, January 27, 2010
January 27th Notes
Litigation Basics
January 27, 2010
NEWS
-Complaint and Answer due on TOMORROW
-WSPA Paralegal dinner on Friday 29th 5pm-8pm Bring your resume!
-Thursday night Guest Speakers
-Starting a new direction to DISCOVERY
Discovery is covered in WACR 26-37
Court Rule 26
-is broad
-reasonably to lead to the discovery of admissible evidence is fair game for discovery
Restrictions on Discovery
1. unreasonably cumulative or duplicative (asking over and over again to get answers)
2. more easily obtained elsewhere (more convenient and easier to find)
3. restrictions on anything that presents unduly burdensome or expensive
Can use evidence solely on the purpose on finding information
-does not have to pertain to the trial directly
Can ask questions about anything even though the information is not admissible
-Why? Because you don't know where things can lead to. It can lead to something that is relevant.
Prepared in anticipation of litigation
-refuse to turn over paperwork
-they are claimed as work product and can not be turned over
However,
If the report is prepared in the ordinary course of business, it is discovery.
What is your companies policy on handling an accident? If they answer take a report. That report is ordinary business.
Motion to Compel
-sent to judge
Compel Production for items you need
-to get it, need to show:
1. Substantial need
2. Unobtainable elsewhere w/o undue hardship
Court Rule 26
-General catch
Court Rules 26(c) Protective Orders
-Motion for Protective Orders
Must show that:
-the discovery is being used for annoyance
-embarrassment
-oppression
-undue burden of expense
Judge has remedies:
-can deny discovery
-limit the breadth (scope)
-gag orders
-designate one method of discovery
-intent of depositions
-nondisclosure orders
-in camera review
Court Rules 26(d)
-eliminated priorities on who sees things first
Court Rules 26(e) Supplemental interrogatories
-once you answer interrogatories, the answers might change or you get new information
-do you have an obligation to notify the other side?
-States differ on this, some say Yes, some say No
-separate interrogatories sent to ask for updates to interrogatories
-WA says there is No duty to supplement EXCEPT when:
1. "Person w/ Knowledge" (30(b)(6))
-learn of someone
-let the defendant identify the person to be deposed
-who is most in charge of, who is the most knowledgeable of
2. Experts
-identify who they are
3. Prior Response was incorrect
4. Right at the time, but now is wrong
5. A request to supplement is made
Discovery Problems
-File a Motion to Compel
-CR 26(i) Motions; Conference of Counsel Requiring
-must have a meet and confer prior to filing
-set a time to discuss with the other side
-If the confer did not work:
-File a declaration that you had a Meet and Confer that did not work with your Motion to Compel
CR 37(4) Sanctions
-Wide range of sanctions
-"the court shall..."
-Will not reward if it is was assumed in good faith
-Judges do not like discovery battles
Depositions
-the queen of chess pieces
-most versatile discovery tool
-witness, party, can depose everyone
-the other tools are only parties
-evaluative demeanor, spontaneous answer
-very expensive
-paralegal spends a lot of time making good questions
-arranging court personnel
-with party, you just give notice of deposition, then arrange date
-not a party it is a subpoena (DO NOT FORGET THAT)
-even friendly ones, subpoena anyway
-Why? if you don't and have multi-parties and your witness does not show up the judge can apply sanctions on you for everyone that did show up
-a formality that needs to be done
-Must give 5 days of notice under CR 30
-if WA resident, you depose them in their county of residence or employment
-can not subpoena someone into your county
-if your party or client, you have in your office
-if opposition party, you go to their office
-20 days notice for video taping
-can not refuse to be video taped
-still requires transcription
CR 30(d) Motion to terminate or limit examination
-limit or break deposition
-harassing, badgering, unprofessional
CR 30(h)
-in WA to objecting, strict rules to objection
-must be concise, no coaching through the deposition
-may not instruct client not to answer (unless it is privileged information)
-once you make an objection, the lawyer usually rephrases question
-no conferring with the attorney
CR 31
Deposition through interrogatories
-write out all your questions 14 days
-other side has cross-questions 7 days
-redirect questions 7 days
-all recorded and served to all parties (no lawyers involved)
-lose all advantages of the deposition
-advantages are:
-it is however cheaper
-and because they are a non-party (need to depose non-parties)
CR 32 Depositions
-Deposition of the party can be used for a party
-in lieu of the plaintiff appearing for live testimony
-Deposition of a witness
-must come to court and testify
-unless they ill, dead, and over 20 miles away from the trial
CR 33 Interrogatories
-ONLY PARTIES
-serve with summons and complaint
-extra days to answer normally 30 days but with 40 days
-leave space to answer question
-admissible in trial BUT only the other side can use them
-Why? Prejudice, self serving
-can produce the documents the information is found in rather than answering
CR 34 Request to produce
-documents and things (anything)
-can do testing on property, photographs
-only catch is: you must describe what you want with reasonable particularity
CR 35 Physical and Mental Examination
-can tape them
-entitled to a copy of the report, even though the other side is taking and paying for it
CR 36 Requests for Admission
-not really discovery, need to know what you are asking for
-done after all the discovery
-the truth of any statement or document
Under WA law, only discovery device which you CAN NOT combine with any other.
-usually added on with interrogatories, with a request to produce
-Must be in different documents, since it is submitted to the jury during trial
CASE CHANGER:
WA State Physicians Insurance Exchange v. Fisons Corp (1993) 122 Wa. 2d 299, 858 P2d 1054
-theophylline
-steroid for lung issues
-caused issues with children
-found out about the drug in 1985 and still gave it to children in 1986
Added CR 26(g)
-adding court rule 11 to the discovery system
-Motions to Compel
-prior to this case the intentional withholding of discovery information was bad
-occurred but was a matter of degree
-after this case, fair and reasoned resistance to discovery is not sanctionable
-misleading, concealing or evasive responses are sanctionable
-crack down on game playing and manipulation
-Need to frame questions well despite this new addition
Discovery
-legal process by which the parties to a lawsuit search for facts relevant to a particular case
-legal process by which the parties to a lawsuit search for the facts relevant to a particular case
-lawsuits should be based on the legal merits of the case
5 Types of Discovery
1. Depositions
2. Interrogatories
3. Requests for Real Evidence
4. Requests of Physical and Mental Examinations
5. Requests of Admissions
-CR 26 promotes parties to cooperate
-big difference in federal and state
-Rule 26: requires parties to disclose certain information to the other party without necessity of formal requests
Objective of Discovery
1. Prevent surprise ***wants to find everything out about a case
-best before trial
-prevent one of the parties from winning the lawsuit by surprise or trickery
2. truth or falsity of facts ***what arguments are going to be, strategy
-determine the truth or falsity of the alleged facts that form the basis of the suit
*all others just learn stuff*
3. advisability of continuing
-weak cases should settle
-examine the facts and weigh the advisability of proceedings with the case or settling early
4. preserving testimony
-all under oath and preserved
-preserve testimony that might be lost should a witness disappear or incapacitated or should records be lost or destroyed
5. impeach
-stick witness or party to a set of facts
-methods can be used to impeach the credibility of a witness should that witness offer testimony at trial that contradicts earlier statements
Informal Discovery
-physical scene visits, photographs, measurements, talk to neighbors
-Discovery can be expensive and time consuming
-need to become efficient
-good for seeing weaknesses in case
-strategy for case and learn about case prior to setting up plans
-Discovery Strategies
-have a plan for what you are going to do
-budget your money and time
-do not just "react" to everything
-need pro-activity rather than just defense
-remember every case is unique
Discovery process is regulated by rule 16, rule 26-37, and rule 45
-Rule 16: Pretrial Conference, Scheduling, Management
-Rule 26: General Provisions, Disclosure,
Depositions
-out of court questions and answer session under oath, conducted in advance of a lawsuit as part of the discovery process
-Rule 27: Depositions before action or pending Appeal
-Rule 28: Persons before whom depositions may be taken
-Rule 29: Stipulations regarding discovery procedures
-Rule 30: Depositions upon Oral examination
-Rule 31: Depositions upon Written questions
-Rule 32: Use of Depositions in court proceedings
Interrogatories
-written questions requiring written answers under oath and directed to a party
-Rule 33: Interrogatories to parties
Request for the production of documents
-party or other individual involved in a lawsuit provide specific documents or other physical evidence
-Rule 34: Production of documents and things and entry upon land for inspection
Request for physical or mental examination
-party in lawsuit to undergo an exam provided there is an issue in a lawsuit
-Rule 35: Physical and Mental examination
Request for admissions
-admit the truthfulness of a fact or the genuineness of a piece of evidence
-Rule 36: Request for Admissions
-Rule 37: Failure to make disclosure or Cooperate with discovery, Sanctions
Subpoenas
-Rule 45: Subpoena
Scope of Discovery
-it is evidence is it tends to prove or disprove facts that can determine the outcome
-Rule 26: evidence need not be admissible but should lead to evidence that can be
Page 227
Expense of discovery
-find out client's budget to get what we need
Ethical Consideration
-truthfully answer but do not help them draft their questions
-you do not have to help them develop their discovery
discovery is broader than admissibility
HOMEWORK
-what you would like to know for after the program and what they found useful
-job market
January 27, 2010
NEWS
-Complaint and Answer due on TOMORROW
-WSPA Paralegal dinner on Friday 29th 5pm-8pm Bring your resume!
-Thursday night Guest Speakers
-Starting a new direction to DISCOVERY
Discovery is covered in WACR 26-37
Court Rule 26
-is broad
-reasonably to lead to the discovery of admissible evidence is fair game for discovery
Restrictions on Discovery
1. unreasonably cumulative or duplicative (asking over and over again to get answers)
2. more easily obtained elsewhere (more convenient and easier to find)
3. restrictions on anything that presents unduly burdensome or expensive
Can use evidence solely on the purpose on finding information
-does not have to pertain to the trial directly
Can ask questions about anything even though the information is not admissible
-Why? Because you don't know where things can lead to. It can lead to something that is relevant.
Prepared in anticipation of litigation
-refuse to turn over paperwork
-they are claimed as work product and can not be turned over
However,
If the report is prepared in the ordinary course of business, it is discovery.
What is your companies policy on handling an accident? If they answer take a report. That report is ordinary business.
Motion to Compel
-sent to judge
Compel Production for items you need
-to get it, need to show:
1. Substantial need
2. Unobtainable elsewhere w/o undue hardship
Court Rule 26
-General catch
Court Rules 26(c) Protective Orders
-Motion for Protective Orders
Must show that:
-the discovery is being used for annoyance
-embarrassment
-oppression
-undue burden of expense
Judge has remedies:
-can deny discovery
-limit the breadth (scope)
-gag orders
-designate one method of discovery
-intent of depositions
-nondisclosure orders
-in camera review
Court Rules 26(d)
-eliminated priorities on who sees things first
Court Rules 26(e) Supplemental interrogatories
-once you answer interrogatories, the answers might change or you get new information
-do you have an obligation to notify the other side?
-States differ on this, some say Yes, some say No
-separate interrogatories sent to ask for updates to interrogatories
-WA says there is No duty to supplement EXCEPT when:
1. "Person w/ Knowledge" (30(b)(6))
-learn of someone
-let the defendant identify the person to be deposed
-who is most in charge of, who is the most knowledgeable of
2. Experts
-identify who they are
3. Prior Response was incorrect
4. Right at the time, but now is wrong
5. A request to supplement is made
Discovery Problems
-File a Motion to Compel
-CR 26(i) Motions; Conference of Counsel Requiring
-must have a meet and confer prior to filing
-set a time to discuss with the other side
-If the confer did not work:
-File a declaration that you had a Meet and Confer that did not work with your Motion to Compel
CR 37(4) Sanctions
-Wide range of sanctions
-"the court shall..."
-Will not reward if it is was assumed in good faith
-Judges do not like discovery battles
Depositions
-the queen of chess pieces
-most versatile discovery tool
-witness, party, can depose everyone
-the other tools are only parties
-evaluative demeanor, spontaneous answer
-very expensive
-paralegal spends a lot of time making good questions
-arranging court personnel
-with party, you just give notice of deposition, then arrange date
-not a party it is a subpoena (DO NOT FORGET THAT)
-even friendly ones, subpoena anyway
-Why? if you don't and have multi-parties and your witness does not show up the judge can apply sanctions on you for everyone that did show up
-a formality that needs to be done
-Must give 5 days of notice under CR 30
-if WA resident, you depose them in their county of residence or employment
-can not subpoena someone into your county
-if your party or client, you have in your office
-if opposition party, you go to their office
-20 days notice for video taping
-can not refuse to be video taped
-still requires transcription
CR 30(d) Motion to terminate or limit examination
-limit or break deposition
-harassing, badgering, unprofessional
CR 30(h)
-in WA to objecting, strict rules to objection
-must be concise, no coaching through the deposition
-may not instruct client not to answer (unless it is privileged information)
-once you make an objection, the lawyer usually rephrases question
-no conferring with the attorney
CR 31
Deposition through interrogatories
-write out all your questions 14 days
-other side has cross-questions 7 days
-redirect questions 7 days
-all recorded and served to all parties (no lawyers involved)
-lose all advantages of the deposition
-advantages are:
-it is however cheaper
-and because they are a non-party (need to depose non-parties)
CR 32 Depositions
-Deposition of the party can be used for a party
-in lieu of the plaintiff appearing for live testimony
-Deposition of a witness
-must come to court and testify
-unless they ill, dead, and over 20 miles away from the trial
CR 33 Interrogatories
-ONLY PARTIES
-serve with summons and complaint
-extra days to answer normally 30 days but with 40 days
-leave space to answer question
-admissible in trial BUT only the other side can use them
-Why? Prejudice, self serving
-can produce the documents the information is found in rather than answering
CR 34 Request to produce
-documents and things (anything)
-can do testing on property, photographs
-only catch is: you must describe what you want with reasonable particularity
CR 35 Physical and Mental Examination
-can tape them
-entitled to a copy of the report, even though the other side is taking and paying for it
CR 36 Requests for Admission
-not really discovery, need to know what you are asking for
-done after all the discovery
-the truth of any statement or document
Under WA law, only discovery device which you CAN NOT combine with any other.
-usually added on with interrogatories, with a request to produce
-Must be in different documents, since it is submitted to the jury during trial
CASE CHANGER:
WA State Physicians Insurance Exchange v. Fisons Corp (1993) 122 Wa. 2d 299, 858 P2d 1054
-theophylline
-steroid for lung issues
-caused issues with children
-found out about the drug in 1985 and still gave it to children in 1986
Added CR 26(g)
-adding court rule 11 to the discovery system
-Motions to Compel
-prior to this case the intentional withholding of discovery information was bad
-occurred but was a matter of degree
-after this case, fair and reasoned resistance to discovery is not sanctionable
-misleading, concealing or evasive responses are sanctionable
-crack down on game playing and manipulation
-Need to frame questions well despite this new addition
Discovery
-legal process by which the parties to a lawsuit search for facts relevant to a particular case
-legal process by which the parties to a lawsuit search for the facts relevant to a particular case
-lawsuits should be based on the legal merits of the case
5 Types of Discovery
1. Depositions
2. Interrogatories
3. Requests for Real Evidence
4. Requests of Physical and Mental Examinations
5. Requests of Admissions
-CR 26 promotes parties to cooperate
-big difference in federal and state
-Rule 26: requires parties to disclose certain information to the other party without necessity of formal requests
Objective of Discovery
1. Prevent surprise ***wants to find everything out about a case
-best before trial
-prevent one of the parties from winning the lawsuit by surprise or trickery
2. truth or falsity of facts ***what arguments are going to be, strategy
-determine the truth or falsity of the alleged facts that form the basis of the suit
*all others just learn stuff*
3. advisability of continuing
-weak cases should settle
-examine the facts and weigh the advisability of proceedings with the case or settling early
4. preserving testimony
-all under oath and preserved
-preserve testimony that might be lost should a witness disappear or incapacitated or should records be lost or destroyed
5. impeach
-stick witness or party to a set of facts
-methods can be used to impeach the credibility of a witness should that witness offer testimony at trial that contradicts earlier statements
Informal Discovery
-physical scene visits, photographs, measurements, talk to neighbors
-Discovery can be expensive and time consuming
-need to become efficient
-good for seeing weaknesses in case
-strategy for case and learn about case prior to setting up plans
-Discovery Strategies
-have a plan for what you are going to do
-budget your money and time
-do not just "react" to everything
-need pro-activity rather than just defense
-remember every case is unique
Discovery process is regulated by rule 16, rule 26-37, and rule 45
-Rule 16: Pretrial Conference, Scheduling, Management
-Rule 26: General Provisions, Disclosure,
Depositions
-out of court questions and answer session under oath, conducted in advance of a lawsuit as part of the discovery process
-Rule 27: Depositions before action or pending Appeal
-Rule 28: Persons before whom depositions may be taken
-Rule 29: Stipulations regarding discovery procedures
-Rule 30: Depositions upon Oral examination
-Rule 31: Depositions upon Written questions
-Rule 32: Use of Depositions in court proceedings
Interrogatories
-written questions requiring written answers under oath and directed to a party
-Rule 33: Interrogatories to parties
Request for the production of documents
-party or other individual involved in a lawsuit provide specific documents or other physical evidence
-Rule 34: Production of documents and things and entry upon land for inspection
Request for physical or mental examination
-party in lawsuit to undergo an exam provided there is an issue in a lawsuit
-Rule 35: Physical and Mental examination
Request for admissions
-admit the truthfulness of a fact or the genuineness of a piece of evidence
-Rule 36: Request for Admissions
-Rule 37: Failure to make disclosure or Cooperate with discovery, Sanctions
Subpoenas
-Rule 45: Subpoena
Scope of Discovery
-it is evidence is it tends to prove or disprove facts that can determine the outcome
-Rule 26: evidence need not be admissible but should lead to evidence that can be
Page 227
Expense of discovery
-find out client's budget to get what we need
Ethical Consideration
-truthfully answer but do not help them draft their questions
-you do not have to help them develop their discovery
discovery is broader than admissibility
HOMEWORK
-what you would like to know for after the program and what they found useful
-job market
Tuesday, January 26, 2010
Januray 26th Notes
Litigation Basics
January 26, 2010
NEWS
-Complaint and Answer due on Thursday 28th
-WSPA Paralegal dinner on Friday 29th
-Thursday night Guest Speakers
Tips on the Complaint/Answer
-In caption just say Complaint or Complaint with numbered causes of action
-Factual information just needs to be the story, some details
-Add facts as you like to the stories
WA doesn't award Punitive Damages, Why?
1. Level of Outrageous Conduct hard to prove
2. Public policy
Motions
-requests for relief that look like pleadings
-It is not a pleading and does not frame an issue.
-is a specific request for relief during the litigation process
-before, during and after trial
How to Count
-CR 6
4 Rules of Counting
1. The Day of the Act Rule:
-When counting the day of the act does not count in the timeline
example: 20 days to answer a complaint before default, served on Jan. 5th.
Where does the timelne put us?
-Jan. 5th does not count in that timeline.
-Start counting on Jan. 6th. So Jan. 25th.
The first day does not count, day of the act does not count, either forward or backward.
2. "7/11" Rule:
-Do Sat., Sun., Holidays count?
WA CR 6
-If the time to do something is less than 7 days, then Saturday, Sunday & Holidays do not count
-If it is 7 days or more, you do count Saturday, Sunday, & Holidays
Federal Rule 6
-If the time is more than 11 or less than 11
3. Business Rule:
-Apply rule 1 & 2 backwards or forwards
-Saturday, Sunday, Holiday: means next court day
4. Post Office is Slow Rule:
-Add 3 days CR 6(e) Federal and State Law
-if you mail it 3 days prior to serve even if it takes longer to get there, it is fine
Motions
-Local Rules Control, different rules on everything
King County Local Rule 7(4)(A)
-6 Court Days page 577 in 2010 ed.
Opposing 7(D)
-noon 2 court days prior to hearing
Reply 7(E)
-noon the day prior to hearing
Motions in CR12
CR56
-Evidence Rule: 403 Motion in Limine- to exclude evidence, prior to jury trial
-gory photos, pornography,
Motion CR55
-default motions
Motions to serve in publication
-Generally written but in trial there may be no time
-called speaking motions raised orally in trial
King County Motions
-All non-dispositive motions (motions that do not end the case)
-submitted and ruled on without oral argument unless they are dispositive
-TRO, Family law exclusions, or at request
-means written skills must be good to persuade judge
KCLR 7(5)(B)
-Form of Motion and of Responsive Pleadings
-this is the form of the motion
1. relief requested
2. statement of facts (succinct)
3. statements of issue (concise)
4. evidence relied upon
5. authority
6. page limits
-ALWAYS CHECK COUNTY'S LOCAL RULES WHEN FILING A MOTION!!!
-rules are not always numbered the same
Motion to Reconsider
-10 days after ruling
Motions page 195
-problems with the case arise and need to be settled
-relate to procedural problems and evidentiary issues
-written and served on attorneys
-resemble pleadings but are not
-opposing also file papers opposing motion
Moving Party (movant)
-the one who files the motion
Includes:
1. the motion
2. the notice of hearing on the motion
3. affidavits in support of the motion
4. a memo of points and authorities in support of the motion
-argument and support called "memo of P&A"
Document describes
1. nature of motion
2. grounds for the motion
3. relief requested
notice of hearing on the motion: when and where court hearing on the motion will take place
Affidavit
-describe factual basis for making the motion and made by someone knowledgeable
1. written in first person signed by party or witness
2. describe the affidavit in first paragraph
3. support of the opposition
4. facts supporting the motion
declaration
-used in lieu of an affidavit but is not sworn
Memo of Points and Authorities (memo of p&a)
-support a motion
-legal argument in form of discussion or analysis of the law that applies to case
-subjective to local rules
BECOME A NOTARY!
Service and Filing
-similar to service of answer
-copy to judge "chamber's copy"
-Federal Rules written motion and notice of hearing served 5 days before the time of hearing
-can be by mail 3 day mail rule
Order shortening time
-served on opposing party with the notice of hearing and moving papers
ex parte: only one side present
-written order must be submitted to judge
-prevailing party prepare the written order for the judge's signature
-add this to your moving papers
-opposing affidavits served no later than 1 day prior to hearing
Hearings
-best to talk to opposing side to work out when this can happen
Specific Motions
Pretrial Motion
-arise before trial occurs
-relate to pleadings, jurisdiction, venue, discovery
Motion to dismiss 12
-terminate lawsuit immediately without hearing
Motion for a More Definite Statement 12
-if complaint is vague and ambiguous
Motion to Strike 12
-delete portions of pleadings
Motion to Amend CR 15
-to amend pleadings
Motion for Judgment on the Pleadings CR 12(c)
-judgment from pleading
Motion for Change of Venue 1404
-transfer to proper court
Motion to Quash return of service
-improper service
Discovery Motions
Motion to compel
-one party refuses to provide information to another
Motion for Summary Judgment CR56
-all orally argued
-unique rules and limitations, dates
-reasonable minds can not differ, there is no issue of law
-must grant motion and judge
-no evidence supports their facts
-made by plaintiffs and defendants
-after discovery
-evidence in form of affidavits, depositions, rogs, admissions
-detailing uncontested facts, contested facts
WACR56
-28 calendar days prior to hearing you must serve motion
-opposition has 11 days
-reply 5 days
42 days <----28 notice <----Hearing<------14 days <-----Trial
Federal CR56
-10 days prior served
-rather than 5 days for other motions
Motion for Sanctions
-prohibit from frivolous allegations
-CR 11
Motions in Limeline
-oral motions in court
Motions for Judgment as a Matter of Law
-under rule 50 (directed verdict or non-suit)
-judge entering a judgment without the jury consideration
-motion for a directed verdict: asking jury to decide a case this way
Post trial Motions
Motion for Judgment as a Matter of Law
-Motion for Judgment notwithstanding the verdict: judge decide case in party's favor on basis that no facts have been proved that would support a jury's decision for the other party
Motion for new trial
-motion for new trial after judgment before appeal
-federal rules 10 days after entry of judgment
Motion to tax costs
-prevailing party entitled to recover costs from other party
Motions for relief from Judgment of Order
-CR 60 request that court set aside any judgment, order, proceeding
"of its own will" sua sponte: judge is doing something on his own in the case
-making injunctions of TRO
JNOV: Judgment non-obstante veredicto
-the jury was wrong and judge will make his own verdict
Chapter 7 Review Questions
1. What is a motion?
2. What is the procedure for making a motion?
3. What is the procedure for opposing a motion?
4. What is an affidavit?
5. What role does the paralegal have in setting motions for hearing?
6. Describe the method for obtaining orders after a hearing on the motion.
7. What are sanctions and how are they used in motion practice?
8. What are some common pretrial motions?
9. How do trial motions differ from other motions?
10. What are some common posttrial motions?
January 26, 2010
NEWS
-Complaint and Answer due on Thursday 28th
-WSPA Paralegal dinner on Friday 29th
-Thursday night Guest Speakers
Tips on the Complaint/Answer
-In caption just say Complaint or Complaint with numbered causes of action
-Factual information just needs to be the story, some details
-Add facts as you like to the stories
WA doesn't award Punitive Damages, Why?
1. Level of Outrageous Conduct hard to prove
2. Public policy
Motions
-requests for relief that look like pleadings
-It is not a pleading and does not frame an issue.
-is a specific request for relief during the litigation process
-before, during and after trial
How to Count
-CR 6
4 Rules of Counting
1. The Day of the Act Rule:
-When counting the day of the act does not count in the timeline
example: 20 days to answer a complaint before default, served on Jan. 5th.
Where does the timelne put us?
-Jan. 5th does not count in that timeline.
-Start counting on Jan. 6th. So Jan. 25th.
The first day does not count, day of the act does not count, either forward or backward.
2. "7/11" Rule:
-Do Sat., Sun., Holidays count?
WA CR 6
-If the time to do something is less than 7 days, then Saturday, Sunday & Holidays do not count
-If it is 7 days or more, you do count Saturday, Sunday, & Holidays
Federal Rule 6
-If the time is more than 11 or less than 11
3. Business Rule:
-Apply rule 1 & 2 backwards or forwards
-Saturday, Sunday, Holiday: means next court day
4. Post Office is Slow Rule:
-Add 3 days CR 6(e) Federal and State Law
-if you mail it 3 days prior to serve even if it takes longer to get there, it is fine
Motions
-Local Rules Control, different rules on everything
King County Local Rule 7(4)(A)
-6 Court Days page 577 in 2010 ed.
Opposing 7(D)
-noon 2 court days prior to hearing
Reply 7(E)
-noon the day prior to hearing
Motions in CR12
CR56
-Evidence Rule: 403 Motion in Limine- to exclude evidence, prior to jury trial
-gory photos, pornography,
Motion CR55
-default motions
Motions to serve in publication
-Generally written but in trial there may be no time
-called speaking motions raised orally in trial
King County Motions
-All non-dispositive motions (motions that do not end the case)
-submitted and ruled on without oral argument unless they are dispositive
-TRO, Family law exclusions, or at request
-means written skills must be good to persuade judge
KCLR 7(5)(B)
-Form of Motion and of Responsive Pleadings
-this is the form of the motion
1. relief requested
2. statement of facts (succinct)
3. statements of issue (concise)
4. evidence relied upon
5. authority
6. page limits
-ALWAYS CHECK COUNTY'S LOCAL RULES WHEN FILING A MOTION!!!
-rules are not always numbered the same
Motion to Reconsider
-10 days after ruling
Motions page 195
-problems with the case arise and need to be settled
-relate to procedural problems and evidentiary issues
-written and served on attorneys
-resemble pleadings but are not
-opposing also file papers opposing motion
Moving Party (movant)
-the one who files the motion
Includes:
1. the motion
2. the notice of hearing on the motion
3. affidavits in support of the motion
4. a memo of points and authorities in support of the motion
-argument and support called "memo of P&A"
Document describes
1. nature of motion
2. grounds for the motion
3. relief requested
notice of hearing on the motion: when and where court hearing on the motion will take place
Affidavit
-describe factual basis for making the motion and made by someone knowledgeable
1. written in first person signed by party or witness
2. describe the affidavit in first paragraph
3. support of the opposition
4. facts supporting the motion
declaration
-used in lieu of an affidavit but is not sworn
Memo of Points and Authorities (memo of p&a)
-support a motion
-legal argument in form of discussion or analysis of the law that applies to case
-subjective to local rules
BECOME A NOTARY!
Service and Filing
-similar to service of answer
-copy to judge "chamber's copy"
-Federal Rules written motion and notice of hearing served 5 days before the time of hearing
-can be by mail 3 day mail rule
Order shortening time
-served on opposing party with the notice of hearing and moving papers
ex parte: only one side present
-written order must be submitted to judge
-prevailing party prepare the written order for the judge's signature
-add this to your moving papers
-opposing affidavits served no later than 1 day prior to hearing
Hearings
-best to talk to opposing side to work out when this can happen
Specific Motions
Pretrial Motion
-arise before trial occurs
-relate to pleadings, jurisdiction, venue, discovery
Motion to dismiss 12
-terminate lawsuit immediately without hearing
Motion for a More Definite Statement 12
-if complaint is vague and ambiguous
Motion to Strike 12
-delete portions of pleadings
Motion to Amend CR 15
-to amend pleadings
Motion for Judgment on the Pleadings CR 12(c)
-judgment from pleading
Motion for Change of Venue 1404
-transfer to proper court
Motion to Quash return of service
-improper service
Discovery Motions
Motion to compel
-one party refuses to provide information to another
Motion for Summary Judgment CR56
-all orally argued
-unique rules and limitations, dates
-reasonable minds can not differ, there is no issue of law
-must grant motion and judge
-no evidence supports their facts
-made by plaintiffs and defendants
-after discovery
-evidence in form of affidavits, depositions, rogs, admissions
-detailing uncontested facts, contested facts
WACR56
-28 calendar days prior to hearing you must serve motion
-opposition has 11 days
-reply 5 days
42 days <----28 notice <----Hearing<------14 days <-----Trial
Federal CR56
-10 days prior served
-rather than 5 days for other motions
Motion for Sanctions
-prohibit from frivolous allegations
-CR 11
Motions in Limeline
-oral motions in court
Motions for Judgment as a Matter of Law
-under rule 50 (directed verdict or non-suit)
-judge entering a judgment without the jury consideration
-motion for a directed verdict: asking jury to decide a case this way
Post trial Motions
Motion for Judgment as a Matter of Law
-Motion for Judgment notwithstanding the verdict: judge decide case in party's favor on basis that no facts have been proved that would support a jury's decision for the other party
Motion for new trial
-motion for new trial after judgment before appeal
-federal rules 10 days after entry of judgment
Motion to tax costs
-prevailing party entitled to recover costs from other party
Motions for relief from Judgment of Order
-CR 60 request that court set aside any judgment, order, proceeding
"of its own will" sua sponte: judge is doing something on his own in the case
-making injunctions of TRO
JNOV: Judgment non-obstante veredicto
-the jury was wrong and judge will make his own verdict
Chapter 7 Review Questions
1. What is a motion?
2. What is the procedure for making a motion?
3. What is the procedure for opposing a motion?
4. What is an affidavit?
5. What role does the paralegal have in setting motions for hearing?
6. Describe the method for obtaining orders after a hearing on the motion.
7. What are sanctions and how are they used in motion practice?
8. What are some common pretrial motions?
9. How do trial motions differ from other motions?
10. What are some common posttrial motions?
Friday, January 22, 2010
January 21st Notes
Litigation Basics
January 21, 2010
Bring your Local Rules Book next week!
Answers
-must line up with the complaint, paragraph by paragraph
Types of Answers
1. General Denial
-WA does not allow this,must address each paragraph individually
-can not deny things you know are true
-all of the allegations are denied
-denying all facts
-denying subject matter jurisdiction, personal jurisdiction, and venue
2. Specific Denial
-specific replies to each of the contentions alleged
-admitting or denying on information and belief (must make good faith effort to find out)
-if not specifically denied it is deemed admitted
3. Qualified Denial
-combination of specific and general responses
-admits and denies allegations
-generally denies everything else
Affirmative Defense
-(great handout on it)
-fact or circumstance that defeats the plaintiff's claim, even if the plaintiff can prove every contention
-allege in the answer or they are deemed waived
-WA CR 8(c)
Types of Affirmative Defenses (always add these)
1. Complaint fails to state cause of action
-failing to join party
2. Fault of other party
-find another person to blame, name or unnamed
3. Fault of the plaintiff
-plaintiff's negligence
4. Plaintiff failed to litigate damages
-blame them for not taking steps to minimize harm
-Bankruptcy, why is that an affirmative defenses?
-Automatic stay, protected from creditors
Exception to the Hearsay Rule
-sufficient trustworthiness
1. 803(8) Public Record
2. 902(d) Certified copy of Public Record
3. Judicial Notice 201(b)(2)
Drafting the Answer
-always make copies (many are written on)
-make notes on each paragraph on how to respond
-Caption identical to complaint
-Remember general denial is not allowed in WA
Specific Denial
1. Defendant denies all the allegations or statements in a specifically named paragraph in the complaint.
2. Defendant denies having sufficient knowledge or belief to respond to the allegations or statements in a specifically named paragraph or paragraphs in the complaint.
3. Defendants admits all the allegations and statements in a specifically named paragraph or paragraphs in the complaint.
4. Defendants admits all the allegations and statements in a specifically named paragraph but deny other allegations in the same paragraph.
-Admit the things you want to and then deny the remainder.
-Do not highlight what you are denying, if you miss one it is admitted
Ways to Answer page 172-173
-Denial of all allegations of one or more paragraphs
-Disadvantage: you may skip one accidentally
-Denial on information and belief
-likes to add "on that basis, it is denied"
-Likes 3. "Defendant denies having sufficient knowledge of information to form a belief as to the allegations contained in Paragraph 4 of the complaint, and thereupon denies said allegations."
-Admission allegation
-Admission in part; denial in part
-tell them what you are admitting and then denial all other allegations, do not miss one
-Qualified denial
-Incorporating by reference
-do not have to repeat admits and denials
-use this statement to say this in other causes of action
-Multicount Answer
-make sure that the numbers line up to not miss one
-always put in affirmative defenses page 174
-one set at the end works well
-answer complaints then add affirmative defenses
Example page 174
-prefers to lay out each paragraph
Answer to 1
1. Admit
2. Admit
3. Admit
4. Deny
5. Deny
6. Deny
7. Deny
Answer to 2
8. Incorporate by Reference
9. Admits this but Denies that
10. Deny
Affirmative Defense
Prayer
Signature
-Likes paragraph numbers to match from Complaint to Answer
-Prayer and Signature
-plaintiff allowed no recovery
-with prejudice
-attorney fees and costs
-any relief the court deems just
-serve plaintiff or plaintiff's attorney and file with court
-can be mailed since they already know of lawsuit
WA CR13 controls all these:
Counterclaim
-claim made by defendant to sue plaintiff
-same transaction
Cross-Claim
-must be served
-claim brought by one defendant against another that is based on the same subject matter as the plaintiff's lawsuit
Third-Party Complaint
-complaint brought by defendant in a lawsuit against someone not in suit
Compulsory Counterclaim
-claim by defendant based on same transaction
-need not satisfy a separate jurisdictional basis to be heard
-claim may be lost if not included in answer
Permissive Counterclaim
-claim by defendant based on different facts from those alleged in complaints
-claim must satisfy a separate jurisdictional basis to be heard
-claim can be raised in separate action
Contribution
-right of the person who paid an entire debt to get back a fair share of the payment from another person who is also responsible for debt
Counterclaim Contribution
-very common for cross-defendant answers
-dismissed if not responsible
-if I am held responsible, another pays for it
-I just want declaration I did not wrong
- don't want anything later as long as I win lawsuit
-if I do not win, you will pay on my behalf
-does not just want money which is just counterclaim
-can be brought later rather than a direct counterclaim
-Why?
-the right to contribution does not arise with the action but with the finding at the end of the trial
Compare page 163 and 179
-accident date is wrong
-Counterclaim must be able to stand alone
-it is a complaint
-what happens if the other complaint is stricken?
Cross-Claim
-one defendant against another
-include indemnification
-affirmative relief and indemnification
Indemnification
-if held responsible you should pay all of it
-allowing a defendant who has paid a judgment to seek reimbursement from another defendant
1. if it says to in contracts (clauses for work done, contractor)
2. law requires it (employee does in scope of duty, bought supplies asked for)
Third party Complaints
-someone not named in original complaint
-separate pleading resembling complaint
-Federal CR right to file within 10 days of filing the answer
-WA CR 14(a)
Reply
-response to counterclaim
-all others are Answers
Court Rule 12(b)
Defenses and Objections
-done within 20 days
1. subject matter jurisdiction NOT waivable
2. personal jurisdiction waivable
3. venue waivable
4. insufficiency process waivable
5. service of process waivable
6. failure to state a claim NOT waivable
7. failure to join indispensable party NOT waivable
2, 3, 4, 5 are waivable if not objected
demurrer
-not in WA (motion for more definite statement)
-require a certain defense be raised in a special pleading
-CR 12(e)
-however, it makes better pleadings
-challenges legal sufficiency of the complaint
-can be dismissed or amended
Motion to dismiss
-request of court to dismiss or strike the case
-immediately terminate action without granting the plaintiff any of the relief
Motion for more definite statement
-a request that the judge require an opponent in a lawsuit to file a less vague or less ambiguous pleading
Motion to strike
-CR 12(f)
-calling party a rude name in pleadings
Failure to Answer
-judgment by default
-judges do not like default judgments
In WA how long to answer a complaint?
-20 days but it says the plaintiff can not take a default against you for 20 days
-if they have not gone for default you can still file answer
-if they have filed default you must make a motion
Why you need to file notice of appearance: WA CR55
1. no longer sneak into court with default without notice
--if no notice of appearance when complaint comes in and forgets to do answer, they can get motion for default without having to notice you
2. if they motion default, you can still file answer before the motion is heard
--if you file notice of appearance, they have 5 day notice to tell you about default
Prove-up Hearing
-mini pseudo trial to hear about damages/case
-liability is contingent (just alleged what happened)
-no liquidated (amount of dispute is not certain)
When you mess up:
-CR60 Relief from Judgment
-usually charged with fees and sanctions but will prevent malpractice
Affidavit
-written statement sworn to before a person officially permitted by law to administer an oath
-penalty of perjury
-sworn to notary
Entry of Default
-action by court clerk noting that the defendant has failed to file a proper response to the complaint
Setting aside defaults
-petition the court to set it aside by making motion to set aside the default motion
-Federal CR 60 motion must be made within reasonable time of the judgment rendered (not exceed a year)
Chapter 6 Review Questions
1. What kinds of responses can the defendant make to the complaint?
2. What time limitations apply to these responses? Can these time limitations be changed? If so, how?
3. What is the difference between a general denial, a qualified denial and a specific denial?
4. What is an affirmative defense and why is it important?
5. What is the general format of an answer?
6. What are the procedures for serving and filing an answer?
7. How are responsive pleadings amended?
8. What are counterclaims, cross-claims, and third-party complaints?
9. What are the different ways in which a defendant can challenge legal deficiencies with initial pleadings or process?
10. What happens if the defendant fails to file a timely response to the initial pleading?
January 21, 2010
Bring your Local Rules Book next week!
Answers
-must line up with the complaint, paragraph by paragraph
Types of Answers
1. General Denial
-WA does not allow this,must address each paragraph individually
-can not deny things you know are true
-all of the allegations are denied
-denying all facts
-denying subject matter jurisdiction, personal jurisdiction, and venue
2. Specific Denial
-specific replies to each of the contentions alleged
-admitting or denying on information and belief (must make good faith effort to find out)
-if not specifically denied it is deemed admitted
3. Qualified Denial
-combination of specific and general responses
-admits and denies allegations
-generally denies everything else
Affirmative Defense
-(great handout on it)
-fact or circumstance that defeats the plaintiff's claim, even if the plaintiff can prove every contention
-allege in the answer or they are deemed waived
-WA CR 8(c)
Types of Affirmative Defenses (always add these)
1. Complaint fails to state cause of action
-failing to join party
2. Fault of other party
-find another person to blame, name or unnamed
3. Fault of the plaintiff
-plaintiff's negligence
4. Plaintiff failed to litigate damages
-blame them for not taking steps to minimize harm
-Bankruptcy, why is that an affirmative defenses?
-Automatic stay, protected from creditors
Exception to the Hearsay Rule
-sufficient trustworthiness
1. 803(8) Public Record
2. 902(d) Certified copy of Public Record
3. Judicial Notice 201(b)(2)
Drafting the Answer
-always make copies (many are written on)
-make notes on each paragraph on how to respond
-Caption identical to complaint
-Remember general denial is not allowed in WA
Specific Denial
1. Defendant denies all the allegations or statements in a specifically named paragraph in the complaint.
2. Defendant denies having sufficient knowledge or belief to respond to the allegations or statements in a specifically named paragraph or paragraphs in the complaint.
3. Defendants admits all the allegations and statements in a specifically named paragraph or paragraphs in the complaint.
4. Defendants admits all the allegations and statements in a specifically named paragraph but deny other allegations in the same paragraph.
-Admit the things you want to and then deny the remainder.
-Do not highlight what you are denying, if you miss one it is admitted
Ways to Answer page 172-173
-Denial of all allegations of one or more paragraphs
-Disadvantage: you may skip one accidentally
-Denial on information and belief
-likes to add "on that basis, it is denied"
-Likes 3. "Defendant denies having sufficient knowledge of information to form a belief as to the allegations contained in Paragraph 4 of the complaint, and thereupon denies said allegations."
-Admission allegation
-Admission in part; denial in part
-tell them what you are admitting and then denial all other allegations, do not miss one
-Qualified denial
-Incorporating by reference
-do not have to repeat admits and denials
-use this statement to say this in other causes of action
-Multicount Answer
-make sure that the numbers line up to not miss one
-always put in affirmative defenses page 174
-one set at the end works well
-answer complaints then add affirmative defenses
Example page 174
-prefers to lay out each paragraph
Answer to 1
1. Admit
2. Admit
3. Admit
4. Deny
5. Deny
6. Deny
7. Deny
Answer to 2
8. Incorporate by Reference
9. Admits this but Denies that
10. Deny
Affirmative Defense
Prayer
Signature
-Likes paragraph numbers to match from Complaint to Answer
-Prayer and Signature
-plaintiff allowed no recovery
-with prejudice
-attorney fees and costs
-any relief the court deems just
-serve plaintiff or plaintiff's attorney and file with court
-can be mailed since they already know of lawsuit
WA CR13 controls all these:
Counterclaim
-claim made by defendant to sue plaintiff
-same transaction
Cross-Claim
-must be served
-claim brought by one defendant against another that is based on the same subject matter as the plaintiff's lawsuit
Third-Party Complaint
-complaint brought by defendant in a lawsuit against someone not in suit
Compulsory Counterclaim
-claim by defendant based on same transaction
-need not satisfy a separate jurisdictional basis to be heard
-claim may be lost if not included in answer
Permissive Counterclaim
-claim by defendant based on different facts from those alleged in complaints
-claim must satisfy a separate jurisdictional basis to be heard
-claim can be raised in separate action
Contribution
-right of the person who paid an entire debt to get back a fair share of the payment from another person who is also responsible for debt
Counterclaim Contribution
-very common for cross-defendant answers
-dismissed if not responsible
-if I am held responsible, another pays for it
-I just want declaration I did not wrong
- don't want anything later as long as I win lawsuit
-if I do not win, you will pay on my behalf
-does not just want money which is just counterclaim
-can be brought later rather than a direct counterclaim
-Why?
-the right to contribution does not arise with the action but with the finding at the end of the trial
Compare page 163 and 179
-accident date is wrong
-Counterclaim must be able to stand alone
-it is a complaint
-what happens if the other complaint is stricken?
Cross-Claim
-one defendant against another
-include indemnification
-affirmative relief and indemnification
Indemnification
-if held responsible you should pay all of it
-allowing a defendant who has paid a judgment to seek reimbursement from another defendant
1. if it says to in contracts (clauses for work done, contractor)
2. law requires it (employee does in scope of duty, bought supplies asked for)
Third party Complaints
-someone not named in original complaint
-separate pleading resembling complaint
-Federal CR right to file within 10 days of filing the answer
-WA CR 14(a)
Reply
-response to counterclaim
-all others are Answers
Court Rule 12(b)
Defenses and Objections
-done within 20 days
1. subject matter jurisdiction NOT waivable
2. personal jurisdiction waivable
3. venue waivable
4. insufficiency process waivable
5. service of process waivable
6. failure to state a claim NOT waivable
7. failure to join indispensable party NOT waivable
2, 3, 4, 5 are waivable if not objected
demurrer
-not in WA (motion for more definite statement)
-require a certain defense be raised in a special pleading
-CR 12(e)
-however, it makes better pleadings
-challenges legal sufficiency of the complaint
-can be dismissed or amended
Motion to dismiss
-request of court to dismiss or strike the case
-immediately terminate action without granting the plaintiff any of the relief
Motion for more definite statement
-a request that the judge require an opponent in a lawsuit to file a less vague or less ambiguous pleading
Motion to strike
-CR 12(f)
-calling party a rude name in pleadings
Failure to Answer
-judgment by default
-judges do not like default judgments
In WA how long to answer a complaint?
-20 days but it says the plaintiff can not take a default against you for 20 days
-if they have not gone for default you can still file answer
-if they have filed default you must make a motion
Why you need to file notice of appearance: WA CR55
1. no longer sneak into court with default without notice
--if no notice of appearance when complaint comes in and forgets to do answer, they can get motion for default without having to notice you
2. if they motion default, you can still file answer before the motion is heard
--if you file notice of appearance, they have 5 day notice to tell you about default
Prove-up Hearing
-mini pseudo trial to hear about damages/case
-liability is contingent (just alleged what happened)
-no liquidated (amount of dispute is not certain)
When you mess up:
-CR60 Relief from Judgment
-usually charged with fees and sanctions but will prevent malpractice
Affidavit
-written statement sworn to before a person officially permitted by law to administer an oath
-penalty of perjury
-sworn to notary
Entry of Default
-action by court clerk noting that the defendant has failed to file a proper response to the complaint
Setting aside defaults
-petition the court to set it aside by making motion to set aside the default motion
-Federal CR 60 motion must be made within reasonable time of the judgment rendered (not exceed a year)
Chapter 6 Review Questions
1. What kinds of responses can the defendant make to the complaint?
2. What time limitations apply to these responses? Can these time limitations be changed? If so, how?
3. What is the difference between a general denial, a qualified denial and a specific denial?
4. What is an affirmative defense and why is it important?
5. What is the general format of an answer?
6. What are the procedures for serving and filing an answer?
7. How are responsive pleadings amended?
8. What are counterclaims, cross-claims, and third-party complaints?
9. What are the different ways in which a defendant can challenge legal deficiencies with initial pleadings or process?
10. What happens if the defendant fails to file a timely response to the initial pleading?
Wednesday, January 20, 2010
January 20th Notes
Litigation Basics
January 20, 2010
Key Dates
Jan 28th: -Return of last year's students
-Complaint & Answer Due
Feb 11th: -Midterm
Feb 25th: -Discovery Project Due
March 3rd: -Electronic Discovery with Greg Shelton (will be on the final)
March 4th: -Career Night Pizza and Jobs with Law Dawgs and Guests
-Mediation Brief Due
March 11th: -Final
Reviewing the Complaint page 137
-Where is this case?
-Federal Court
-28 U.S.C § 1332
-complete diversity
-dispute of 75K
-Why is it hard to get into federal court?
-limited scope, subject matter jurisdiction
-Caption
-A partnership is not a legal person, why is it mentioned?
-showing the nature of the harm was done as partnership
-but must sue the corporation
-"Plaintiffs allege against each and every defendant:"
-this statement does not have to be included if it is true
-mention a statement if it is not true
-Can bring case in NV and ID
Why? Defendants from there and incident occurred there.
Why pick NV? CA is closer to NV. And Erie doctrine (where the court is located) must follow the law there.
Erie Doctrine
-Choice of law w/ diversity
-mandating that a federal court in diversity jurisdiction must apply state substantive law
-there is no Federal common law
-Federal courts must apply Federal law for procedural matters
Plaintiff: CA
Defendant: Rice NV
Defendant: Para ID
Defendant: Forr NV
Incident: NV
-Plaintiff is in CA, why did they not use the long-arm statute to bring them to CA?
-No minimal contacts with CA, the swindle happened in NV.
Two styles of Complaint Drafts
1. First Cause of Action is long
-allege basic facts in the actions
-1-5 paragraphs apply to all causes of actions
-paragraph 11. incorporates with reference
2. Causes of Action focused
-allege basic facts first
-venue, jurisdiction, capacity
-prior to actions discussed
***Each cause of action must stand alone. ***
-each must be its own separate complaint
-each cause of action can stand alone in case others are thrown out
-failure to incorporate by reference
Why did they not include paragraph 8. in the incorporation for 11. ?
-paragraph 8 is about fraud and should not mix with negligence
-fraud is made with knowledge of falsity
-negligence it did not know
Why did they include paragraph 8. in the incorporation for 16.?
-fraud is fraud and fraud in confidentiality is also a fiduciary duty
Numbering Systems
1. Sequential numbering
1-20
2. Sectional numbering (clarity in discussions)
-First Cause of Action
1.1
1.2
-Second Cause of Action
2.1
2.2
-Every cause of action has its own prayer
-asking for different things
-even if it's the same for all, write it out
-You only get one recovery. But items may be stricken.
RCW 4.28.360
Personal injury action — Complaint not to include statement of damages — Request for statement.
In any civil action for personal injuries, the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined. A defendant in such action may at any time request a statement from the plaintiff setting forth separately the amounts of any special damages and general damages sought. Not later than fifteen days after service of such request to the plaintiff, the plaintiff shall have served the defendant with such statement.
Caption
-name of the court, plaintiffs, defendants, and title of document
Causes of Action
-various jurisdiction and factual allegations
1. Jurisdiction and Venue
2. Allegations on status and capacity
3. Agency Allegation: claims one of more defendants were agents or employees of one or more of the other defendants.
4. Basis of Lawsuit and damages suffered
Pleading on Information and Belief
-alright to allege things you do not know but think are true
Incorporate by Reference
Prayer
-specific request
-"Wherefore plaintiff"
Subscription
-always sign the complaint
-Federal CR11 making representations of certain facts
Request for Jury
Federal CR 38(b) -10 days after service of the last pleading
WA CR 38(b) - at or prior than the time the case is set for trial (very different)
Verification
-seeking injunction relief must be sworn under penalty of perjury
Disclosure Statement by Nongovernmental Corporate Party
-Federal CR 7.1
-if the plaintiff is a nongovernmental corporation they must file this disclosure
-owns 10% of more of its stocks or states that there is no such corporation
Exhibit
-attach copies to some complaints
-Federal rules allow-
Called:
Exhibit 1 when from defendant
Exhibit A when from plaintiff
Cover Sheet
-in house document the court uses for the file
Filing a Complaint
-giving the paper to the court
-then given a docket number
-$250 to file, free to answer (can waive fee if needed)
Summons
-notice delivered by authorized person to inform person of a lawsuit against him/her
-original summons is not filed with court kept until defendant is served
-Originals stay with the court
-state complaints must be served
WA CR 4
-WA does not require you file your complaint prior to serving
-may be that way to increase want to settle out of court
-you must serve complaint and summons together
WA CR 4.1(b)(2)
-demand to file with court within 14 days of being served or it is void
Service of Complaint
-there is one good one and three bad ones
-the others are not reliable for due process
-Federal Court copy of complaint and summons should be served within 120 days of filing complaint
1. Personal Service of Process
-the best way
-20 days
-notice of lawsuit that is delivering a copy of the paper to that party
-Process service: fills out the receipt (proof of service) that they were served
-can not leave papers, need to know person is there
-do not attempt personal service once and give up (at least 3 attempts at different times and different locations)
2. Substitute Service
-house of usual abode
-with a person of suitable age (14) and discretion
-14 and over you are served
-under 14 you and your parents are served
-resides there
-20 days
Use only if they are out of state, searched for them and they are in hiding:
3. Service by publication
RCW 4.28.100, 100 Service of summons by publication — When authorized.
-constructive notice
-60 days
-File a motion to authorize publication (order in advance)
-show you have tried other means
-private investigator
-prepares you for the challenge
-Also send copy to last known address
4. Service by Mail
-acceptable if you know they are gone
-90 days to answer, usually for out of country
Corporations Served
-serve to their registered agent
-president, secretary, cashier, managing agent
-service Secretary of State (Sam Reid)
Serving Government
-serve the Attorney General at his office (Rob McKenna)
Serving Minor
-over 14 minor and guardian
-under 14 just guardian
-no guardian, serve employer or adult they live with
Serving Non-WA domiciliary (not resident)
-long arm statute
-in WA, if you are wrong about statute you can be held liable for cost to bring them to WA
-personal service only with exception for MVA can be served on Secretary of State
Serving out of Country
-follow their law
-WA CR4(i)
Waiver of Service
-a defendant in Federal can waive the formal service of process
-plaintiff sends by first class mail: the compliant, a notice explaining waiver, and consequences of failing to waive service and a waiver form to sign
Advantages
-60 days to answer
-not billed for it (if you refuse you pay for the service)
Amending the Complaint
-90 days from filing complaint to serve
-as many times as you want as long in statute of limitations
-Statute of limitations (varies usually 2years or more)
-Starts service limitations of 90days
-can amend even after statute of limitations runs
-relates back to the original date of filing
Stipulation
-an agreement between lawyers on opposite side of a lawsuit
Federal CR 15
-amendment relates back to original filing date only when the newly named party has received notice of action within 120 days of its being filed
Chapter 5 Review Questions
1. What is the purpose of pleadings?
2. What matters are generally contained in a complaint?
3. What factors should be reviewed before determining who will be named as parties to a lawsuit?
4. What is the difference between notice pleading and code pleading?
5. What are the types of remedies that may be requested from a court?
6. What are the steps in drafting a complaint?
7. How are complaints filed?
8. What is a summons?
9. How is service of process accomplished?
10. What is the procedure for amending a complaint?
Chapter 6 page 162
example of complaint page 162
Responding to Complaint
1. Contest the facts of the case
2. Challenge the action on some legal basis
-Motion or Demurrer
3. Do Nothing
4. Settle
-Federal Court 20 days to Answer
RCW 4.16.1.70
Federal CR 12
Federal CR 4(d)(2)
RCW 4.28.100
-WA Notice of Appearance
-appears on behalf of defendant
-to avoid default and get more time when you can not get a stipulation
-can not take a default against you without a notice motion
-30 days to RESPOND (not just ANSWER) is a good way to state this otherwise there are other challenges
-may want to challenge pleading that way you can challenge pleading not just answer
Open Stipulation
-agreement between attorneys that a defendant need not answer a complaint within the time directed by law and need not answer until specifically notified by the plaintiff to do so
-bad because they can just keep going on and on
-better to give a timeline and then extend if needed
HOMEWORK
--Court Rule 8
January 20, 2010
Key Dates
Jan 28th: -Return of last year's students
-Complaint & Answer Due
Feb 11th: -Midterm
Feb 25th: -Discovery Project Due
March 3rd: -Electronic Discovery with Greg Shelton (will be on the final)
March 4th: -Career Night Pizza and Jobs with Law Dawgs and Guests
-Mediation Brief Due
March 11th: -Final
Reviewing the Complaint page 137
-Where is this case?
-Federal Court
-28 U.S.C § 1332
-complete diversity
-dispute of 75K
-Why is it hard to get into federal court?
-limited scope, subject matter jurisdiction
-Caption
-A partnership is not a legal person, why is it mentioned?
-showing the nature of the harm was done as partnership
-but must sue the corporation
-"Plaintiffs allege against each and every defendant:"
-this statement does not have to be included if it is true
-mention a statement if it is not true
-Can bring case in NV and ID
Why? Defendants from there and incident occurred there.
Why pick NV? CA is closer to NV. And Erie doctrine (where the court is located) must follow the law there.
Erie Doctrine
-Choice of law w/ diversity
-mandating that a federal court in diversity jurisdiction must apply state substantive law
-there is no Federal common law
-Federal courts must apply Federal law for procedural matters
Plaintiff: CA
Defendant: Rice NV
Defendant: Para ID
Defendant: Forr NV
Incident: NV
-Plaintiff is in CA, why did they not use the long-arm statute to bring them to CA?
-No minimal contacts with CA, the swindle happened in NV.
Two styles of Complaint Drafts
1. First Cause of Action is long
-allege basic facts in the actions
-1-5 paragraphs apply to all causes of actions
-paragraph 11. incorporates with reference
2. Causes of Action focused
-allege basic facts first
-venue, jurisdiction, capacity
-prior to actions discussed
***Each cause of action must stand alone. ***
-each must be its own separate complaint
-each cause of action can stand alone in case others are thrown out
-failure to incorporate by reference
Why did they not include paragraph 8. in the incorporation for 11. ?
-paragraph 8 is about fraud and should not mix with negligence
-fraud is made with knowledge of falsity
-negligence it did not know
Why did they include paragraph 8. in the incorporation for 16.?
-fraud is fraud and fraud in confidentiality is also a fiduciary duty
Numbering Systems
1. Sequential numbering
1-20
2. Sectional numbering (clarity in discussions)
-First Cause of Action
1.1
1.2
-Second Cause of Action
2.1
2.2
-Every cause of action has its own prayer
-asking for different things
-even if it's the same for all, write it out
-You only get one recovery. But items may be stricken.
RCW 4.28.360
Personal injury action — Complaint not to include statement of damages — Request for statement.
In any civil action for personal injuries, the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined. A defendant in such action may at any time request a statement from the plaintiff setting forth separately the amounts of any special damages and general damages sought. Not later than fifteen days after service of such request to the plaintiff, the plaintiff shall have served the defendant with such statement.
Caption
-name of the court, plaintiffs, defendants, and title of document
Causes of Action
-various jurisdiction and factual allegations
1. Jurisdiction and Venue
2. Allegations on status and capacity
3. Agency Allegation: claims one of more defendants were agents or employees of one or more of the other defendants.
4. Basis of Lawsuit and damages suffered
Pleading on Information and Belief
-alright to allege things you do not know but think are true
Incorporate by Reference
Prayer
-specific request
-"Wherefore plaintiff"
Subscription
-always sign the complaint
-Federal CR11 making representations of certain facts
Request for Jury
Federal CR 38(b) -10 days after service of the last pleading
WA CR 38(b) - at or prior than the time the case is set for trial (very different)
Verification
-seeking injunction relief must be sworn under penalty of perjury
Disclosure Statement by Nongovernmental Corporate Party
-Federal CR 7.1
-if the plaintiff is a nongovernmental corporation they must file this disclosure
-owns 10% of more of its stocks or states that there is no such corporation
Exhibit
-attach copies to some complaints
-Federal rules allow-
Called:
Exhibit 1 when from defendant
Exhibit A when from plaintiff
Cover Sheet
-in house document the court uses for the file
Filing a Complaint
-giving the paper to the court
-then given a docket number
-$250 to file, free to answer (can waive fee if needed)
Summons
-notice delivered by authorized person to inform person of a lawsuit against him/her
-original summons is not filed with court kept until defendant is served
-Originals stay with the court
-state complaints must be served
WA CR 4
-WA does not require you file your complaint prior to serving
-may be that way to increase want to settle out of court
-you must serve complaint and summons together
WA CR 4.1(b)(2)
-demand to file with court within 14 days of being served or it is void
Service of Complaint
-there is one good one and three bad ones
-the others are not reliable for due process
-Federal Court copy of complaint and summons should be served within 120 days of filing complaint
1. Personal Service of Process
-the best way
-20 days
-notice of lawsuit that is delivering a copy of the paper to that party
-Process service: fills out the receipt (proof of service) that they were served
-can not leave papers, need to know person is there
-do not attempt personal service once and give up (at least 3 attempts at different times and different locations)
2. Substitute Service
-house of usual abode
-with a person of suitable age (14) and discretion
-14 and over you are served
-under 14 you and your parents are served
-resides there
-20 days
Use only if they are out of state, searched for them and they are in hiding:
3. Service by publication
RCW 4.28.100, 100 Service of summons by publication — When authorized.
-constructive notice
-60 days
-File a motion to authorize publication (order in advance)
-show you have tried other means
-private investigator
-prepares you for the challenge
-Also send copy to last known address
4. Service by Mail
-acceptable if you know they are gone
-90 days to answer, usually for out of country
Corporations Served
-serve to their registered agent
-president, secretary, cashier, managing agent
-service Secretary of State (Sam Reid)
Serving Government
-serve the Attorney General at his office (Rob McKenna)
Serving Minor
-over 14 minor and guardian
-under 14 just guardian
-no guardian, serve employer or adult they live with
Serving Non-WA domiciliary (not resident)
-long arm statute
-in WA, if you are wrong about statute you can be held liable for cost to bring them to WA
-personal service only with exception for MVA can be served on Secretary of State
Serving out of Country
-follow their law
-WA CR4(i)
Waiver of Service
-a defendant in Federal can waive the formal service of process
-plaintiff sends by first class mail: the compliant, a notice explaining waiver, and consequences of failing to waive service and a waiver form to sign
Advantages
-60 days to answer
-not billed for it (if you refuse you pay for the service)
Amending the Complaint
-90 days from filing complaint to serve
-as many times as you want as long in statute of limitations
-Statute of limitations (varies usually 2years or more)
-Starts service limitations of 90days
-can amend even after statute of limitations runs
-relates back to the original date of filing
Stipulation
-an agreement between lawyers on opposite side of a lawsuit
Federal CR 15
-amendment relates back to original filing date only when the newly named party has received notice of action within 120 days of its being filed
Chapter 5 Review Questions
1. What is the purpose of pleadings?
2. What matters are generally contained in a complaint?
3. What factors should be reviewed before determining who will be named as parties to a lawsuit?
4. What is the difference between notice pleading and code pleading?
5. What are the types of remedies that may be requested from a court?
6. What are the steps in drafting a complaint?
7. How are complaints filed?
8. What is a summons?
9. How is service of process accomplished?
10. What is the procedure for amending a complaint?
Chapter 6 page 162
example of complaint page 162
Responding to Complaint
1. Contest the facts of the case
2. Challenge the action on some legal basis
-Motion or Demurrer
3. Do Nothing
4. Settle
-Federal Court 20 days to Answer
RCW 4.16.1.70
Federal CR 12
Federal CR 4(d)(2)
RCW 4.28.100
-WA Notice of Appearance
-appears on behalf of defendant
-to avoid default and get more time when you can not get a stipulation
-can not take a default against you without a notice motion
-30 days to RESPOND (not just ANSWER) is a good way to state this otherwise there are other challenges
-may want to challenge pleading that way you can challenge pleading not just answer
Open Stipulation
-agreement between attorneys that a defendant need not answer a complaint within the time directed by law and need not answer until specifically notified by the plaintiff to do so
-bad because they can just keep going on and on
-better to give a timeline and then extend if needed
HOMEWORK
--Court Rule 8
January 19th Notes
Litigation Basics
January 19, 2010
Handouts
#4 Problems for pleadings (due Jan 28th) AND Discovery project (due Feb 25th)
-Need not be the same problem for both assignments
#5 Long complaint (Terri Thomas)
#6 Short complaint (Robert Davis)
Homework
-Take one of the scenarios and do a complaint and answer
-Must take 2-3 theories
-Represent the plaintiff and defendant
-More than one cause of action in the complaint
-does not grade on how relevant to the facts
-look at two other hand outs for reference
-Google Group
-Template for Pleading Paper: Thanks to Eric!
http://groups.google.com/group/uwparalegal/browse_thread/thread/bd3169d266bdb57d?hl=en
Chapter 5 page 119
-WA has a fairly liberal view in pleadings
-Why?
1. State CR 15 Amendments can be done even after the court case is closed
2. Notice pleading state
Pleadings
-various documents tiled in a court proceeding that define the nature of the dispute between the parties
-unless there is a default, both parties must file pleadings
Elements of the Complaint
1. Identify parties and status and capacity to sue and be sued
2. Statement showing proper jurisdiction
3. Describe factual basis of lawsuit
4. Demand for relief
Complaint Format
-example: page 120
1. Caption: heading including names of parties, the court, and case number
2. Allegations: contentions and defenses of the parties of the lawsuit
3. Prayer: request for relief or remedy
4. Subscription: signature of attorney, address and email
Verification
-sworn written statement on truth of document
When drafting a complaint always analyze the case, determine the purpose, and outline the general content.
Real Party of Interest
-person entitled to the relief sought, regardless if they brought about the dispute
-Federal CR17(a)
-examples: executor of a state, trustee
Status
-description of the party involved
-if necessary, include a paragraph describing the status
-included in the caption (always put it in)
-"with its principle place of business in __________ county ___"
-examples: an individual, a corporation, a partnership, government agency
Capacity
-legal right to sue or be sued
Guardian ad litem (GAL)
-a person appointed by the court to take care of the interests of a person who can not take legal action
-usually behalf of minor or incompetent
-example: page 122 Mary is the only plaintiff as a minor and a real party of interest
-service on Minors is tricky, you must serve the child and the parent
-under 14 just the parent
-can not sue a child without liability
-negligence:
-under 6 can not appreciate the standards of conduct
-over 6, held to a lower standard (average reasonable child)
Corporations
-is a "person" for legal purposes
-limited liability: the shareholders are not liable beyond their investment
-raising capital is easier
-make money not running a business (stocks)
-easy to close a corporations (easy to liquidate)
-piercing corporate veil: individuals can be sued for them not acting as a corporation
Government Agencies
-due to the common law doctrine of sovereign immunity, there are laws that have limit and regulations on how to sue the government
Partnership
-unincorporated and partnerships can be sued as individuals
-however, there may be limitations on relief from individuals
-does not pay tax since they are not a person entity
-Why do you name the business in the caption? It's not a corporation.
-Because it's not a personal issue it is a business issue.
Fictitious Names
-DBA: Does Business As
-usually for business purposes
-lawsuits should reveal the proper name of the party with status of fictitious name
-always verify they are using the fictitious name legally
Fictitious Defendants
-the identity is unknown and are called "Does"
-used as a place holder for defendants that are found after the statute of limitations has run, however can not use "just in case"
-No "Does" in Federal Court due to CR15
-plaintiffs can name new defendants after limitations as long as they would have been named a party but there was a mistake
-"Doe Pleading": already included in pleading and replace later
-WA does not allow generalizations or Doe Pleadings
-aware that there is a potential defendant but not their name, use a doe
-if you know the identify but not the name
Relation Back Doctrine
-if you want to add another theory after the complaint you can as long as the statute of limitations has not run since you filed the lawsuit
-if you could have added it when you filed the lawsuit you can add it after as long as the new statute hasn't run
Example:
Lawsuit filed right before 3rd year:
Breach of contract - 6 year statute YES
Libel - 2 years NO
Conversion - 3 years YES
Joinder of Parties
-harder to add parties
-no undue prejudices for the party
-and was a mistake they were not added
1. Permissive Joinder: allowed but not required
-very liberal as long as the issue is common
2. Compulsory Joinder: party must be included in case
-must be part in order to resolve the issue
Adding Parties
1. Indispensable party
-person has a stake in the lawsuit and must be joined before judgment
-needed for a case to occur (roommate)
-Federal CR12(b)
2. Conditionally necessary
-would like to see the party there but can go ahead without
3. Proper necessary
-allowable, must be about the common question of law
-does not like term "counts", conflicts with criminal page 133
-prefers "cause of action"(best one to use) or "claim"
Multiple Parties
-Is every plaintiff suing every defendant on every theory?
-if no, you much show who is suing who on which theories
Example: different people want to sue on some different claims
Cause of Action one
Wrongful Termination
(plaintiff A and plaintiff B)
Cause of Action two
(plaintiff B)
Class Actions (Not necessary to know right now)
-lawsuit brought for yourself and others in same situation
-must get permissions from court to proceed with action
-all members of the action must get notice
-must write a request to be excluded
Federal CR23
-class must be so numerous that joinder of all members is impracticable
-question of law is common for all
-typical claims or defenses for all
-protect interest of all
Interpleader
-special type of action where several different parties claim ownership of a fund or property controlled by another
-example: Insurance company tells court to disperse funds to prevent further lawsuits
Jurisdiction
-the plaintiff must state why the action if filed in Federal Court, giving citation of proper USC section
-28 U.S.C. § 1332
-in State Court it is not necessary to state why it is proper but it is a good idea to provide
-example: page 128
Venue
-residence of defendant
-allegation that one of the defendants resides in the district which the action if filed
-where the cause of the action arose
-example: page 128
Code Pleading
-complaint must have factual allegations to support each element for the cause to action
Notice Pleading
-complaint must provide enough facts to put defendant on notice as to why he is being sued but factual allegations are not necessary
-too much detail can affect later discovery
Federal CR9
-Allegations of fraud or mistake require detailed fact in the complaint
A complaint can have numerous causes of action
-if the claims have different remedies, different evidence they should be separate causes of action
Prayer
-demand for relief
1. Money Damages
2. Equitable Relief: ordering the defendant to do or stop doing something
Money Damages
-called actions at law
1. Compensatory damages: awarded for actual loss suffered
-Special damages: actual out-of-pocket expenses
-doctor bills, lost earnings
-General damages: not out-of-pocket expenses
-pain, suffering, loss of limb, disfigurement
-Damages for loss of consortium from spouse or child
2. Punitive or Exemplary Damages: extra money to punish defendant
-usually for offensive extreme act
-subject to limitations
Other Costs
-filing fees, process server fees, deposition fees, expert witness fees
-not included in plaintiff's damages
-parties are expected to pay their own attorney fees
Equitable Relief
-called actions in equity
-you can combine equitable relief and money damages
Types:
-specific performance: order party to perform contract
-rescission: order rescinding a contract
-restitution: order to return money or property, usually from rescinded contract
-declaratory relief: order from court explaining rights and obligations of parties under some contract
-quiet title: order clarifying ownership of real property
-injunction: order requiring a party to stop doing something
Provisional Remedies
-if injunctive relief is the primary objective of the lawsuit, an injunction can be put in place as soon as the complaint is filed
-Federal CR 64-71
1. Temporary Restraining Order ex parte
-compels the defendant to stop certain conduct immediately
-effective for a short time 10-14 days
2. Preliminary Injunction
-keeping the TRO in effect until trial Federal CR65
3. Injunction
-making the TRO permanent
Need to show:
1. Must show irreparable harm
-must be too late to fix by time of trial
2. Likely to prevail on the merits
-show judge
-must get bond to hold this in case you are wrong
-Judicial system hates injunction
-hurts due process
-gives you relief without trial
ADDITIONAL: Read page 137
-be ready to discuss
January 19, 2010
Handouts
#4 Problems for pleadings (due Jan 28th) AND Discovery project (due Feb 25th)
-Need not be the same problem for both assignments
#5 Long complaint (Terri Thomas)
#6 Short complaint (Robert Davis)
Homework
-Take one of the scenarios and do a complaint and answer
-Must take 2-3 theories
-Represent the plaintiff and defendant
-More than one cause of action in the complaint
-does not grade on how relevant to the facts
-look at two other hand outs for reference
-Google Group
-Template for Pleading Paper: Thanks to Eric!
http://groups.google.com/group/uwparalegal/browse_thread/thread/bd3169d266bdb57d?hl=en
Chapter 5 page 119
-WA has a fairly liberal view in pleadings
-Why?
1. State CR 15 Amendments can be done even after the court case is closed
2. Notice pleading state
Pleadings
-various documents tiled in a court proceeding that define the nature of the dispute between the parties
-unless there is a default, both parties must file pleadings
Elements of the Complaint
1. Identify parties and status and capacity to sue and be sued
2. Statement showing proper jurisdiction
3. Describe factual basis of lawsuit
4. Demand for relief
Complaint Format
-example: page 120
1. Caption: heading including names of parties, the court, and case number
2. Allegations: contentions and defenses of the parties of the lawsuit
3. Prayer: request for relief or remedy
4. Subscription: signature of attorney, address and email
Verification
-sworn written statement on truth of document
When drafting a complaint always analyze the case, determine the purpose, and outline the general content.
Real Party of Interest
-person entitled to the relief sought, regardless if they brought about the dispute
-Federal CR17(a)
-examples: executor of a state, trustee
Status
-description of the party involved
-if necessary, include a paragraph describing the status
-included in the caption (always put it in)
-"with its principle place of business in __________ county ___"
-examples: an individual, a corporation, a partnership, government agency
Capacity
-legal right to sue or be sued
Guardian ad litem (GAL)
-a person appointed by the court to take care of the interests of a person who can not take legal action
-usually behalf of minor or incompetent
-example: page 122 Mary is the only plaintiff as a minor and a real party of interest
-service on Minors is tricky, you must serve the child and the parent
-under 14 just the parent
-can not sue a child without liability
-negligence:
-under 6 can not appreciate the standards of conduct
-over 6, held to a lower standard (average reasonable child)
Corporations
-is a "person" for legal purposes
-limited liability: the shareholders are not liable beyond their investment
-raising capital is easier
-make money not running a business (stocks)
-easy to close a corporations (easy to liquidate)
-piercing corporate veil: individuals can be sued for them not acting as a corporation
Government Agencies
-due to the common law doctrine of sovereign immunity, there are laws that have limit and regulations on how to sue the government
Partnership
-unincorporated and partnerships can be sued as individuals
-however, there may be limitations on relief from individuals
-does not pay tax since they are not a person entity
-Why do you name the business in the caption? It's not a corporation.
-Because it's not a personal issue it is a business issue.
Fictitious Names
-DBA: Does Business As
-usually for business purposes
-lawsuits should reveal the proper name of the party with status of fictitious name
-always verify they are using the fictitious name legally
Fictitious Defendants
-the identity is unknown and are called "Does"
-used as a place holder for defendants that are found after the statute of limitations has run, however can not use "just in case"
-No "Does" in Federal Court due to CR15
-plaintiffs can name new defendants after limitations as long as they would have been named a party but there was a mistake
-"Doe Pleading": already included in pleading and replace later
-WA does not allow generalizations or Doe Pleadings
-aware that there is a potential defendant but not their name, use a doe
-if you know the identify but not the name
Relation Back Doctrine
-if you want to add another theory after the complaint you can as long as the statute of limitations has not run since you filed the lawsuit
-if you could have added it when you filed the lawsuit you can add it after as long as the new statute hasn't run
Example:
Lawsuit filed right before 3rd year:
Breach of contract - 6 year statute YES
Libel - 2 years NO
Conversion - 3 years YES
Joinder of Parties
-harder to add parties
-no undue prejudices for the party
-and was a mistake they were not added
1. Permissive Joinder: allowed but not required
-very liberal as long as the issue is common
2. Compulsory Joinder: party must be included in case
-must be part in order to resolve the issue
Adding Parties
1. Indispensable party
-person has a stake in the lawsuit and must be joined before judgment
-needed for a case to occur (roommate)
-Federal CR12(b)
2. Conditionally necessary
-would like to see the party there but can go ahead without
3. Proper necessary
-allowable, must be about the common question of law
-does not like term "counts", conflicts with criminal page 133
-prefers "cause of action"(best one to use) or "claim"
Multiple Parties
-Is every plaintiff suing every defendant on every theory?
-if no, you much show who is suing who on which theories
Example: different people want to sue on some different claims
Cause of Action one
Wrongful Termination
(plaintiff A and plaintiff B)
Cause of Action two
(plaintiff B)
Class Actions (Not necessary to know right now)
-lawsuit brought for yourself and others in same situation
-must get permissions from court to proceed with action
-all members of the action must get notice
-must write a request to be excluded
Federal CR23
-class must be so numerous that joinder of all members is impracticable
-question of law is common for all
-typical claims or defenses for all
-protect interest of all
Interpleader
-special type of action where several different parties claim ownership of a fund or property controlled by another
-example: Insurance company tells court to disperse funds to prevent further lawsuits
Jurisdiction
-the plaintiff must state why the action if filed in Federal Court, giving citation of proper USC section
-28 U.S.C. § 1332
-in State Court it is not necessary to state why it is proper but it is a good idea to provide
-example: page 128
Venue
-residence of defendant
-allegation that one of the defendants resides in the district which the action if filed
-where the cause of the action arose
-example: page 128
Code Pleading
-complaint must have factual allegations to support each element for the cause to action
Notice Pleading
-complaint must provide enough facts to put defendant on notice as to why he is being sued but factual allegations are not necessary
-too much detail can affect later discovery
Federal CR9
-Allegations of fraud or mistake require detailed fact in the complaint
A complaint can have numerous causes of action
-if the claims have different remedies, different evidence they should be separate causes of action
Prayer
-demand for relief
1. Money Damages
2. Equitable Relief: ordering the defendant to do or stop doing something
Money Damages
-called actions at law
1. Compensatory damages: awarded for actual loss suffered
-Special damages: actual out-of-pocket expenses
-doctor bills, lost earnings
-General damages: not out-of-pocket expenses
-pain, suffering, loss of limb, disfigurement
-Damages for loss of consortium from spouse or child
2. Punitive or Exemplary Damages: extra money to punish defendant
-usually for offensive extreme act
-subject to limitations
Other Costs
-filing fees, process server fees, deposition fees, expert witness fees
-not included in plaintiff's damages
-parties are expected to pay their own attorney fees
Equitable Relief
-called actions in equity
-you can combine equitable relief and money damages
Types:
-specific performance: order party to perform contract
-rescission: order rescinding a contract
-restitution: order to return money or property, usually from rescinded contract
-declaratory relief: order from court explaining rights and obligations of parties under some contract
-quiet title: order clarifying ownership of real property
-injunction: order requiring a party to stop doing something
Provisional Remedies
-if injunctive relief is the primary objective of the lawsuit, an injunction can be put in place as soon as the complaint is filed
-Federal CR 64-71
1. Temporary Restraining Order ex parte
-compels the defendant to stop certain conduct immediately
-effective for a short time 10-14 days
2. Preliminary Injunction
-keeping the TRO in effect until trial Federal CR65
3. Injunction
-making the TRO permanent
Need to show:
1. Must show irreparable harm
-must be too late to fix by time of trial
2. Likely to prevail on the merits
-show judge
-must get bond to hold this in case you are wrong
-Judicial system hates injunction
-hurts due process
-gives you relief without trial
ADDITIONAL: Read page 137
-be ready to discuss
Thursday, January 14, 2010
January 14th Notes
Litigation Basics
January 14, 2010
Federal Rules of Evidence
-Purpose and Construction: ER Rule 102: secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined
Relevant Evidence
-evidence that tends to prove or disprove a fact that is important to a claim, charge or defense in a court case
-if it is not relevant it is not let in
-only supports the existence
-ER 401: tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without the evidence
Inadmissible
ER402: relevant evidence can be made inadmissible
1. Subsequent remedial measures ER 407
-something was broken and then fixed
-Example: chair broke, next day all chairs are brand new
-makes you look guilty regardless
-admissible to prove other things (like premise)
2. Offer to compromise a claim ER 408
-offer to settle
-discourages settlements
-does not admit liability but could look like it
3. Promise to pay medical expenses ER 409
-argue liability, not charity
4. Existence of liability insurance ER 411
-not allowed to bring in the fact that the client has insurance
-influence jury's thinking it is the insurance's problem
-ER 403: exclusion of relevant evidence if the value is outweighed by the danger of unfair prejudice, confusion, misleading the jury
-examples: gory pictures tend to be
-sidenote: discretion of the judge tends to stand even in appeals
Character Evidence
-testimony about a person's traits and habits that draw opinion and reputation
-admissible if character is an issue (self-defense case, defamation case)
-ER 404: Character Evidence not admissible to prove conduct
-ER 405: Methods of Proving Character
-Reputation
-Specific Instances of Conduct
-ER 406: Habit Evidence
-usually response in a situation
-if issue is about their habit (always leave the keys in the bowl near door)
Documentary Evidence
Authentication
-needs to establish that it is what you say it is
-everything must be
-ER 901(a) General Provisions (requires)
-ER 901(b) Illustrations (methods of authentication)
Self Authorization
-certain documents do not have to prove
-sufficiently reliable
-ER 902 Self-Authentication
-public documents, certified copies, official publications, newspapers, trade inscriptions, notarized documents, commercial papers
Best Evidence Rules
-ER 1002 Requirement of Original
-must produce original document if it is available
-nothing to do with the "best evidence"
-only applies to documents
-to use copies rather than originals unless it is an issue
-exception is if the document is with the other party, then you bring copy
Hearsay
-statement about what someone else said outside the courtroom proceedings
-documents and oral statements
-must meet exceptions ER 801-806
-all parties have the right to examine and cross-examine
-ER 801 Definitions
-out of court statement (oral or written) offered for the truth of the matter asserted within it
Exceptions to Hearsay
ER 803 Availability declarant
ER 804 Unavailable declarant
-most evidence is hearsay that is why there are so many exceptions
-indicia of trustworthiness: CA law, if you can prove it is reliable it is coming in
1. Excited utterance ER 803(2): no time to fabricate statement
-statement made while under the influence of the event
2. Existing mental, emotional, physical condition ER 803(3)
3. Statements made for the purpose of medical diagnosis or treatment ER 803(4)
-reliable that the truth is given to a doctor
4. Business Records ER 803(6)
-reliable day to day to run business
5. Unavailability of person who made statements ER 804
-only death, illness, privilege to refuse to testify, insecure court
6. Statements against interest ER 804(b)(3)
-most people do not admit to bad things unless they are true
Great sources on evidence
-Wigmore on Evidence
-McCormick on Evidence
Expert Witnesses
-ER 702: Testimony by Experts
-person possessing special knowledge who is allowed to testify at a trial not only about the facts but also professional conclusions they draw from the facts
-most cases have these now
-training, education, or background
-Find them at:
-Yellow Pages: TASA, ALM
-professional organizations
-court record of experts
-other attorneys in your office
-colleges or universities
-professional journals
-attorneys who have handles similar litigation
-the internet
Testing Experts
1. Are they knowledgeable? Experience, educations, training?
2. Persuasive?
3. In practice not a professional testimony expert
4. 50/50 someone who testifies for both plaintiffs and defendants
-looks more objective
-get your expert early
Chapter 4 Review Questions
1. What are the paralegal's responsibilities in preparing for the client interview?
2. What are the steps in setting up the client interview?
3. What types of questions should be included in the client interview questionnaire?
4. What forms might be needed during the client interview for client signature?
5. What is the function of a paralegal during the client interview?
6. What are some possible sources for locating fact witnesses or elusive defendants?
7. Describe the various objections to admissibility of evidence.
8. What are the methods for locating, controlling, and preserving evidence?
9. What is the importance of the expert witness?
10. What is the paralegal's role in retaining an expert witness?
Chapter 5 page 119
Pleadings
-formal written statements of each side of a civil case
Rules on Pleadings (must be followed) RCW 26
-Face Sheet of the Pleading
-3" from the top
-1" on all other borders
-Other pages
-1" on all borders
-On pleading paper numbered 1-28
-double space everything
π - Plaintiff
Δ - Defendant
¢ - Complaint
Plaintiff sues the Defendant is a Complaint
Plaintiff sues Defendant 2 is a Complaint
Defendant 2 files Crossclaim against Defendant 1
Defendant 2 brings a Third Party Complaint to Defendant 3
Defendant 3 reply is an Answer to Defendant 2
Defendant 1 reply to Defendant 2 is an Answer
Defendant files a response to the Complaint is an Answer
Defendant sues the Plaintiff back is a Counterclaim
Response of the Plaintiff to the Defendant's Counterclaim is a Reply
CR17a
-a lawsuit must be brought by the real party in interest
CR20
-proper party
-some common connection, defined broadly
CR19
-"Conditionally necessary"
-almost always allow them to be joined
-do not have to join them
Indispensable Party CR12(b)(7)
-must join or matter can not proceed
-not waivable
-WA has liberal view in judging the pleadings
-Why? WA is a notice pleading state, does not need specifics
CR15 Amended Pleadings
-anytime before the Answer or Reply is filed
January 14, 2010
Federal Rules of Evidence
-Purpose and Construction: ER Rule 102: secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined
Relevant Evidence
-evidence that tends to prove or disprove a fact that is important to a claim, charge or defense in a court case
-if it is not relevant it is not let in
-only supports the existence
-ER 401: tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without the evidence
Inadmissible
ER402: relevant evidence can be made inadmissible
1. Subsequent remedial measures ER 407
-something was broken and then fixed
-Example: chair broke, next day all chairs are brand new
-makes you look guilty regardless
-admissible to prove other things (like premise)
2. Offer to compromise a claim ER 408
-offer to settle
-discourages settlements
-does not admit liability but could look like it
3. Promise to pay medical expenses ER 409
-argue liability, not charity
4. Existence of liability insurance ER 411
-not allowed to bring in the fact that the client has insurance
-influence jury's thinking it is the insurance's problem
-ER 403: exclusion of relevant evidence if the value is outweighed by the danger of unfair prejudice, confusion, misleading the jury
-examples: gory pictures tend to be
-sidenote: discretion of the judge tends to stand even in appeals
Character Evidence
-testimony about a person's traits and habits that draw opinion and reputation
-admissible if character is an issue (self-defense case, defamation case)
-ER 404: Character Evidence not admissible to prove conduct
-ER 405: Methods of Proving Character
-Reputation
-Specific Instances of Conduct
-ER 406: Habit Evidence
-usually response in a situation
-if issue is about their habit (always leave the keys in the bowl near door)
Documentary Evidence
Authentication
-needs to establish that it is what you say it is
-everything must be
-ER 901(a) General Provisions (requires)
-ER 901(b) Illustrations (methods of authentication)
Self Authorization
-certain documents do not have to prove
-sufficiently reliable
-ER 902 Self-Authentication
-public documents, certified copies, official publications, newspapers, trade inscriptions, notarized documents, commercial papers
Best Evidence Rules
-ER 1002 Requirement of Original
-must produce original document if it is available
-nothing to do with the "best evidence"
-only applies to documents
-to use copies rather than originals unless it is an issue
-exception is if the document is with the other party, then you bring copy
Hearsay
-statement about what someone else said outside the courtroom proceedings
-documents and oral statements
-must meet exceptions ER 801-806
-all parties have the right to examine and cross-examine
-ER 801 Definitions
-out of court statement (oral or written) offered for the truth of the matter asserted within it
Exceptions to Hearsay
ER 803 Availability declarant
ER 804 Unavailable declarant
-most evidence is hearsay that is why there are so many exceptions
-indicia of trustworthiness: CA law, if you can prove it is reliable it is coming in
1. Excited utterance ER 803(2): no time to fabricate statement
-statement made while under the influence of the event
2. Existing mental, emotional, physical condition ER 803(3)
3. Statements made for the purpose of medical diagnosis or treatment ER 803(4)
-reliable that the truth is given to a doctor
4. Business Records ER 803(6)
-reliable day to day to run business
5. Unavailability of person who made statements ER 804
-only death, illness, privilege to refuse to testify, insecure court
6. Statements against interest ER 804(b)(3)
-most people do not admit to bad things unless they are true
Great sources on evidence
-Wigmore on Evidence
-McCormick on Evidence
Expert Witnesses
-ER 702: Testimony by Experts
-person possessing special knowledge who is allowed to testify at a trial not only about the facts but also professional conclusions they draw from the facts
-most cases have these now
-training, education, or background
-Find them at:
-Yellow Pages: TASA, ALM
-professional organizations
-court record of experts
-other attorneys in your office
-colleges or universities
-professional journals
-attorneys who have handles similar litigation
-the internet
Testing Experts
1. Are they knowledgeable? Experience, educations, training?
2. Persuasive?
3. In practice not a professional testimony expert
4. 50/50 someone who testifies for both plaintiffs and defendants
-looks more objective
-get your expert early
Chapter 4 Review Questions
1. What are the paralegal's responsibilities in preparing for the client interview?
2. What are the steps in setting up the client interview?
3. What types of questions should be included in the client interview questionnaire?
4. What forms might be needed during the client interview for client signature?
5. What is the function of a paralegal during the client interview?
6. What are some possible sources for locating fact witnesses or elusive defendants?
7. Describe the various objections to admissibility of evidence.
8. What are the methods for locating, controlling, and preserving evidence?
9. What is the importance of the expert witness?
10. What is the paralegal's role in retaining an expert witness?
Chapter 5 page 119
Pleadings
-formal written statements of each side of a civil case
Rules on Pleadings (must be followed) RCW 26
-Face Sheet of the Pleading
-3" from the top
-1" on all other borders
-Other pages
-1" on all borders
-On pleading paper numbered 1-28
-double space everything
π - Plaintiff
Δ - Defendant
¢ - Complaint
Plaintiff sues the Defendant is a Complaint
Plaintiff sues Defendant 2 is a Complaint
Defendant 2 files Crossclaim against Defendant 1
Defendant 2 brings a Third Party Complaint to Defendant 3
Defendant 3 reply is an Answer to Defendant 2
Defendant 1 reply to Defendant 2 is an Answer
Defendant files a response to the Complaint is an Answer
Defendant sues the Plaintiff back is a Counterclaim
Response of the Plaintiff to the Defendant's Counterclaim is a Reply
CR17a
-a lawsuit must be brought by the real party in interest
CR20
-proper party
-some common connection, defined broadly
CR19
-"Conditionally necessary"
-almost always allow them to be joined
-do not have to join them
Indispensable Party CR12(b)(7)
-must join or matter can not proceed
-not waivable
-WA has liberal view in judging the pleadings
-Why? WA is a notice pleading state, does not need specifics
CR15 Amended Pleadings
-anytime before the Answer or Reply is filed
Wednesday, January 13, 2010
January 13th Notes
Litigation Basics
January 13, 2010
WSPA Student Dinner
Friday Jan. 29th 5-8:30pm
Red Lion Inn
Members: $35 Non-Members: $40
-Chicken or Vegetarian Dinner Options
-Resume Workshop and Professional Presentations
-Sign up online at: http://www.Acteva.com/go/wspa
-Check the Paralegal Google Group for 10 ticket discount
http://groups.google.com/group/uwparalegal/browse_thread/thread/9179f870d4afae7f?hl=en
Trust Account
-money or property put in a bank to be kept separate or used for a special purpose
Purpose:
1. Advances by the client
2. Settlement of judgments
IOLTA ACCOUNT
-Interest on Lawyer's Trust Account
-doesn't apply to flat fee system
-gross settlement on verdict checks are deposited here
-entire check goes here
-money never comes out of here for personal expense (embezzlement)
ALL CASES:
Smith, J $300,000
Jones, D $150,000
Green, T $225, 000
Williams, P $217,500
Smith, J
From Distribution Sheet:
W&L - Smith case $100,000 (goes to general account)
W&L - Smith case Costs $2,500
Smith, J $180,000
Other distributions $17,500
Distribution Sheet
-Make one of these for each client
-Not an account
John Smith Case
Gross Settlement $300,000
A/F (firm costs) $100,000
Costs $2,500
Health Ins. Lien $10,000 (for medical bills)
Dr. Steve Green $5,000 (doctor care)
Dr. Linda $2,500 (doctor care)
Client net recovery $180,000
Dated: Client Signature:
Cost Account
-recovered costs are deposited here
-on RPC Rule 1.8(e) the client can forward the money for costs
-if you need more money you take from the General Account to cover it
-RPC Rule 1.15A(i)(2)(ii) Can pool in IOLTA account as long as there is accounting
-can not write a check for more than the client's account amount
-can not mix the money of clients
OUT IN
Smith, J $2,500 $2,500
Jones, D $10,000
Green, T $12,000
Williams, P $15,000
Deposits from General $40,000
General Account
-used to run the firm
-net fees to firm deposited here
-all the money you make in the IOLTA account
-the money that comes out from this account
IN OUT
Smith, J $300,000
Jones, D $150,000
Green, T $225, 000
Williams, P $217,500
Telephone $2,000
Payroll $40,000
Rent $10,000
Supplies $5,000
Ethics for Paralegals
1. Disclose title
2. Protect all confidential information
3. Do not engage in the practice of law
4. Do not establish fees or establish client relationships
5. Be honest and accurate
Prohibited from:
-making appearance in court
-giving legal advice to a client
-signing pleadings
Can:
-file documents
-give factual information to clients
-sign correspondences
Litigation Procedure
1. Check conflicts
2. Make initial assessments of facts
3. Determine validity of cause of action, statute of limitations, pursuing a reasonable case
4. Explain law firm's representation and fee arrangement
5. Retainer agreement
6. File created
7. Financial ledger
8. Deposits in trust account
9. Tickle all important dates
10. Introduce paralegal
11. Letter to defendant
Chapter 3 Review Questions
1. What is cause of action?
2. What is the importance of a cause of action to the litigation process?
3. What are the various types of time limitations on filing a lawsuit?
4. What is a tickler system and why is it important in a litigation law firm?
5. What practical considerations must be reviewed prior to accepting a case?
6. What is the proper procedure for turning down a case?
7. What are the various ethical standards that control an attorney's decision to accept a case?
8. What are the ethical responsibilities governing law firms that handle litigation?
9. What are the special ethical concerns of litigation paralegals?
10. How do preliminary ethical and legal considerations influence initial office procedures?
Chapter 4 page 89
Tips for Client Interview
Clients are looking for:
-Confidence
-Be Professional
-attire
-demeanor
-Competency
-Knowledgeable
-Informative
-Caring
Client Interview
-establishes tone for representation
-similar to medical professionalism
1. Research potential causes of action or defenses
-do not grill the client over the phone, immediately
2. Scheduling the interview
-rule out all conflicts
-set it as early as possible
-bring all information along
-depends on the case bills, police reports, estimates, insurance
-names and addresses of opposing party, witnesses
-follow-up call
-be willing to do the interview at a hospital room, coffee shops, office
-do not interview at their home alone
-usually about 45 minutes
3. Developing an interview questionnaire
-usually a form that has been personalized
4. Taking notes during the interview
5. Produce a summary of the interview
Representation Letter
-a letter from an attorney to the new client to establish ground rules for litigation, including fees, billing rates, retainer, and work to be performed
Retainer Agreement
-agreement between attorney and client setting a fee arrangement
Release
-a document by which a claim if relinquished
Medical Diary
-a document for a client to track medical related information
-inadmissible at trial
-self serving
-hearsay
-can be memory refresh exception
-they are discoverable (everyone reads it)
-keeps client in the case, gives them something to do
-history of events and how pain/accident impacted them
Service of Process
-delivery of legal paper by an authorized person in a way that meets requirements, usually a lawsuit
Agent of a Service of Process
-authorized person to serve lawsuit papers
Witnesses
-locating witnesses is a priority
-send letter to see if they are willing
-less evasive
-first thank them for assistance with case
-tell them a little bit about the court system and thank them for participation
-tell them you will try to keep them out of the matter
-do not buy them anything during interview
-he prefers not to use tape recorder but how to get them to agree
-so i don't misquote you
-offer them a copy
-never tape record a witness secretly (felony)
-take good notes, type up statements, send to the witness for accuracy, bring up the signing later
-identify title, potential parties, and claims
-regard demeanor
-witnesses do not have to help you
-rules of evidence usually do not allow written witness statements unless the witness is present in court and testifies
-if the witness is unavailable for the trial, a formal deposition can be taken
-use them for witnesses that are not being helpful
-otherwise you can subpoena and force deposition under oath
-if you have to depo. the opposing attorneys are present too
Tips for Witness Interview
-be quiet and let them talk
-then seek details and clarification
-no leading questions
Evidence
-all types of information presented at a trial
-how we prove our allegations
-do not ignore inadmissible evidence, "cast a wide net" to find information
Direct Evidence
-proof of a fact without the need for other facts leading up to it
example: see students in a classroom means there is a class
Circumstantial Evidence
-facts that indirectly prove a main fact in question
-often leads a judge or jury to infer a particular conclusion about a disputed fact
-no difference in the admissibility from direct
example: see student supplies in classroom but no students probably a class going on
Forms of Evidence
Tangible Evidence:
1. Testimony
-most common form of evidence and consists of statements made under oath
-can be self-serving
2. Documentary Evidence
-memos, ledgers, medical records, letters, checks, photographs
3. Demonstrative Evidence
-physical or real objects
Legal Evidence:
4. Presumptions
-a conclusion, automatic assumption required by law that whenever a certain set of facts shows up a court must automatically draw certain conclusions
-many presumptions are rebutted or disproved
1. guilty until prove innocent
2. children 8-12 presumed they don't have mens rea
5. Judicial Notice
-act of judge in recognizing the existence of truth of certain facts without bothering to make one side in a lawsuit prove them
-done when facts are either common knowledge
-Federal Rule 201: common knowledge facts
-ER Rule 201(b) page 234
-common facts generally known to the trial court (territorial)
-examples: who the mayor is, street location
-facts that are accurate from unimpeachable sources
-examples: measurements, encyclopedias
3 Federal Rules to know:
FRCP
FRE
FRAP
January 13, 2010
WSPA Student Dinner
Friday Jan. 29th 5-8:30pm
Red Lion Inn
Members: $35 Non-Members: $40
-Chicken or Vegetarian Dinner Options
-Resume Workshop and Professional Presentations
-Sign up online at: http://www.Acteva.com/go/wspa
-Check the Paralegal Google Group for 10 ticket discount
http://groups.google.com/group/uwparalegal/browse_thread/thread/9179f870d4afae7f?hl=en
Trust Account
-money or property put in a bank to be kept separate or used for a special purpose
Purpose:
1. Advances by the client
2. Settlement of judgments
IOLTA ACCOUNT
-Interest on Lawyer's Trust Account
-doesn't apply to flat fee system
-gross settlement on verdict checks are deposited here
-entire check goes here
-money never comes out of here for personal expense (embezzlement)
ALL CASES:
Smith, J $300,000
Jones, D $150,000
Green, T $225, 000
Williams, P $217,500
Smith, J
From Distribution Sheet:
W&L - Smith case $100,000 (goes to general account)
W&L - Smith case Costs $2,500
Smith, J $180,000
Other distributions $17,500
Distribution Sheet
-Make one of these for each client
-Not an account
John Smith Case
Gross Settlement $300,000
A/F (firm costs) $100,000
Costs $2,500
Health Ins. Lien $10,000 (for medical bills)
Dr. Steve Green $5,000 (doctor care)
Dr. Linda $2,500 (doctor care)
Client net recovery $180,000
Dated: Client Signature:
Cost Account
-recovered costs are deposited here
-on RPC Rule 1.8(e) the client can forward the money for costs
-if you need more money you take from the General Account to cover it
-RPC Rule 1.15A(i)(2)(ii) Can pool in IOLTA account as long as there is accounting
-can not write a check for more than the client's account amount
-can not mix the money of clients
OUT IN
Smith, J $2,500 $2,500
Jones, D $10,000
Green, T $12,000
Williams, P $15,000
Deposits from General $40,000
General Account
-used to run the firm
-net fees to firm deposited here
-all the money you make in the IOLTA account
-the money that comes out from this account
IN OUT
Smith, J $300,000
Jones, D $150,000
Green, T $225, 000
Williams, P $217,500
Telephone $2,000
Payroll $40,000
Rent $10,000
Supplies $5,000
Ethics for Paralegals
1. Disclose title
2. Protect all confidential information
3. Do not engage in the practice of law
4. Do not establish fees or establish client relationships
5. Be honest and accurate
Prohibited from:
-making appearance in court
-giving legal advice to a client
-signing pleadings
Can:
-file documents
-give factual information to clients
-sign correspondences
Litigation Procedure
1. Check conflicts
2. Make initial assessments of facts
3. Determine validity of cause of action, statute of limitations, pursuing a reasonable case
4. Explain law firm's representation and fee arrangement
5. Retainer agreement
6. File created
7. Financial ledger
8. Deposits in trust account
9. Tickle all important dates
10. Introduce paralegal
11. Letter to defendant
Chapter 3 Review Questions
1. What is cause of action?
2. What is the importance of a cause of action to the litigation process?
3. What are the various types of time limitations on filing a lawsuit?
4. What is a tickler system and why is it important in a litigation law firm?
5. What practical considerations must be reviewed prior to accepting a case?
6. What is the proper procedure for turning down a case?
7. What are the various ethical standards that control an attorney's decision to accept a case?
8. What are the ethical responsibilities governing law firms that handle litigation?
9. What are the special ethical concerns of litigation paralegals?
10. How do preliminary ethical and legal considerations influence initial office procedures?
Chapter 4 page 89
Tips for Client Interview
Clients are looking for:
-Confidence
-Be Professional
-attire
-demeanor
-Competency
-Knowledgeable
-Informative
-Caring
Client Interview
-establishes tone for representation
-similar to medical professionalism
1. Research potential causes of action or defenses
-do not grill the client over the phone, immediately
2. Scheduling the interview
-rule out all conflicts
-set it as early as possible
-bring all information along
-depends on the case bills, police reports, estimates, insurance
-names and addresses of opposing party, witnesses
-follow-up call
-be willing to do the interview at a hospital room, coffee shops, office
-do not interview at their home alone
-usually about 45 minutes
3. Developing an interview questionnaire
-usually a form that has been personalized
4. Taking notes during the interview
5. Produce a summary of the interview
Representation Letter
-a letter from an attorney to the new client to establish ground rules for litigation, including fees, billing rates, retainer, and work to be performed
Retainer Agreement
-agreement between attorney and client setting a fee arrangement
Release
-a document by which a claim if relinquished
Medical Diary
-a document for a client to track medical related information
-inadmissible at trial
-self serving
-hearsay
-can be memory refresh exception
-they are discoverable (everyone reads it)
-keeps client in the case, gives them something to do
-history of events and how pain/accident impacted them
Service of Process
-delivery of legal paper by an authorized person in a way that meets requirements, usually a lawsuit
Agent of a Service of Process
-authorized person to serve lawsuit papers
Witnesses
-locating witnesses is a priority
-send letter to see if they are willing
-less evasive
-first thank them for assistance with case
-tell them a little bit about the court system and thank them for participation
-tell them you will try to keep them out of the matter
-do not buy them anything during interview
-he prefers not to use tape recorder but how to get them to agree
-so i don't misquote you
-offer them a copy
-never tape record a witness secretly (felony)
-take good notes, type up statements, send to the witness for accuracy, bring up the signing later
-identify title, potential parties, and claims
-regard demeanor
-witnesses do not have to help you
-rules of evidence usually do not allow written witness statements unless the witness is present in court and testifies
-if the witness is unavailable for the trial, a formal deposition can be taken
-use them for witnesses that are not being helpful
-otherwise you can subpoena and force deposition under oath
-if you have to depo. the opposing attorneys are present too
Tips for Witness Interview
-be quiet and let them talk
-then seek details and clarification
-no leading questions
Evidence
-all types of information presented at a trial
-how we prove our allegations
-do not ignore inadmissible evidence, "cast a wide net" to find information
Direct Evidence
-proof of a fact without the need for other facts leading up to it
example: see students in a classroom means there is a class
Circumstantial Evidence
-facts that indirectly prove a main fact in question
-often leads a judge or jury to infer a particular conclusion about a disputed fact
-no difference in the admissibility from direct
example: see student supplies in classroom but no students probably a class going on
Forms of Evidence
Tangible Evidence:
1. Testimony
-most common form of evidence and consists of statements made under oath
-can be self-serving
2. Documentary Evidence
-memos, ledgers, medical records, letters, checks, photographs
3. Demonstrative Evidence
-physical or real objects
Legal Evidence:
4. Presumptions
-a conclusion, automatic assumption required by law that whenever a certain set of facts shows up a court must automatically draw certain conclusions
-many presumptions are rebutted or disproved
1. guilty until prove innocent
2. children 8-12 presumed they don't have mens rea
5. Judicial Notice
-act of judge in recognizing the existence of truth of certain facts without bothering to make one side in a lawsuit prove them
-done when facts are either common knowledge
-Federal Rule 201: common knowledge facts
-ER Rule 201(b) page 234
-common facts generally known to the trial court (territorial)
-examples: who the mayor is, street location
-facts that are accurate from unimpeachable sources
-examples: measurements, encyclopedias
3 Federal Rules to know:
FRCP
FRE
FRAP
Tuesday, January 12, 2010
January 12th Notes
Litigation Basics
January 12, 2010
$20 to Bruce for handouts Checks or Cash
A good case requires all 3 elements
Liability (theory) - Damages (injury) - Source of Recovery (pocket)
Statute of Limitations
-time limit from event to when you file a lawsuit
-Why?
1. Due Process: principle that the government must respect all of the legal rights that are owed to a person according to the law, holds the government subservient to the law of the land, protecting individual persons from the state
-fairness to defendant
-witness forget, move, die
-evidence fades, disappears, destroyed, damaged
2. Prejudice in proving the defense
3. Genuine Claim or Harassment "Strike" Lawsuit
4. Judicial Congestion
-if not filed in time it will be dismissed regardless of merit
-differs depending on the case
-vary from state to state widely
-do not count the first day but do count the last day
-statute runs from when you knew or should have known when your rights were violated
-Court Rule 6 in WA
Prima facie "on its first appearance"
Martindale-Hubbell's lawyer locater: http://www.martindale.com/
Tolling
-state of limitations can be stopped and restarted right where it stopped
-most minors until they reach maturity
Example:
Hurt on January 1, 2010
3 years Statute of Limitations
Expires on January 1, 2013
Time stops for:
-Plaintiff in prison
-Physical incapacity of the plaintiff (coma, needs to be severe)
-Defendant leaves the country
-Plaintiff on active duty (not defendant)
-Defendant concealment (changes name, goes into hiding)
-Death of the plaintiff but only 1 year extension
-Judge orders stay
-Bankruptcy
-Plaintiff's insanity
Minors
-doesn't start until they are 18, tolling means it is already running so it's not really running
-Why? the child does not have ability to make legal decisions
-can be brought up by parents or guardian prior to the end of the statute
-useful to wait for some situations like 17 year olds
-can only be brought once
Claim Statute
-before you can proceed against a government entity, you must fill out the claim form and give them the opportunity to settle the claim
-applies to any branch of the government
-governmental entity if sued, defendant is deceased
-time limit shorter and usually never tolled
-must be done 90 days before you sue, do not wait to file claim
Includes:
1. Notification of intent to sue
2. Information about the person making the claim
3. Description of the nature of the claim
4. Amount of the claim
Laches
-prevents lawsuit from being filed when in fairness to the defendant too much time has elapse, even though the statute of limitations has not expired
-defendant is unfairly hurt or prejudiced by the delay
-only applies to equitable cases
-equitable cases: cases in which the plaintiff is asking for something other than money
-court will look at your actions to see if they imply that you are not pursuing lawsuit
Example:
-seller no longer wants to sell house to the buyer w/ contract
-buyer buys another house
-buyer can still sue for breach of contract
-seller sells house to another person
-buyer than wants equitable remedy from seller
-court says buyer should have filed claim prior to action of buying another house
Tickler System
-a calendaring system to schedule important dates in lawsuits
-tickle the statute of limitations but early enough for preparation
-always calendar ahead of time, not just the expiration day
-do not rely only on the firm's calendars, use your own for your cases
-server back-ups for computerized ones/also hard copy
Turning down a case
-exercise care in stating opinion in the merits of a case
-always done in writing for the record with a letter stating:
1. "We are declining representation and taking on action on your behalf"
2. Advise a second opinion
3. Tell them the statute of limitations is running (do not have to tell them expiration date)
-make it personal, offer services in the future, can refer to other attorneys
Model Rules of Professional Conduct
-rules from American Bar Association on attorney behavior
-paralegals are responsible for their actions and it reflects on their attorneys
-can not neglect cases they have accepted
-frivolous claims: should not be pursued
1. CR11 Sanctions
2. Counterclaim
3. Financial interest
4. Jury is not stupid
5. 52% of good cases lose
6. Reputation/Reputation of Profession
7. 12b /Motion Summary Judgment
Conflict of Interest
-being in a position where your own needs and desires could lead to violation of duty
1. opposing party in new case was a prior client
2. worked on prior case
3. personal relationship with other party
-the firm can continue working on a case if they set up an ethical wall to prevent involvement "Chinese Wall"
-can handle if a written waiver from client
Ethical Concerns
-most lawsuits from clients are for lack of communication
1. Keep them in the loop
-always return calls promptly
-CC copy your client on everything you do
-call them with status updates
2. Give them your cell phone number
-security for the client
-unethical to contact opposing party directly if they have representation
-must record if the opposing client tried to call you and they have an attorney
-always be honest
Attorney Fees
-RPC Rule 1.5 Fees
1. Flat Fee
-legal fee based on fixed sum
-usually in volume work
-example: representation for landlords dealing with evictions, "lemon law" work, criminal defense
2. Hourly Billing
-fixed amount for each hour
-can not be excessive
-write down everything you do with every activity
3. Contingent Fee
-payment to lawyer is a percentage of winnings
-if no winnings, no fee
-under the idea that most clients can not afford lawyers
4. Sliding Scale
-depends on the case
Costs
-expenses in a lawsuit that the judge orders one side to pay
-what the attorney spends on behalf of the client, separate from fee
-RPC Rule 1.8 can not come out of the fee rule
Retainer
-representation agreement is better term
-employment of a lawyer by a client
-specific agreement
-sharing of fees RPC1.5(e)(1)(i), (ii),(iii)
-WA does not allow it
January 12, 2010
$20 to Bruce for handouts Checks or Cash
A good case requires all 3 elements
Liability (theory) - Damages (injury) - Source of Recovery (pocket)
Statute of Limitations
-time limit from event to when you file a lawsuit
-Why?
1. Due Process: principle that the government must respect all of the legal rights that are owed to a person according to the law, holds the government subservient to the law of the land, protecting individual persons from the state
-fairness to defendant
-witness forget, move, die
-evidence fades, disappears, destroyed, damaged
2. Prejudice in proving the defense
3. Genuine Claim or Harassment "Strike" Lawsuit
4. Judicial Congestion
-if not filed in time it will be dismissed regardless of merit
-differs depending on the case
-vary from state to state widely
-do not count the first day but do count the last day
-statute runs from when you knew or should have known when your rights were violated
-Court Rule 6 in WA
Prima facie "on its first appearance"
Martindale-Hubbell's lawyer locater: http://www.martindale.com/
Tolling
-state of limitations can be stopped and restarted right where it stopped
-most minors until they reach maturity
Example:
Hurt on January 1, 2010
3 years Statute of Limitations
Expires on January 1, 2013
Time stops for:
-Plaintiff in prison
-Physical incapacity of the plaintiff (coma, needs to be severe)
-Defendant leaves the country
-Plaintiff on active duty (not defendant)
-Defendant concealment (changes name, goes into hiding)
-Death of the plaintiff but only 1 year extension
-Judge orders stay
-Bankruptcy
-Plaintiff's insanity
Minors
-doesn't start until they are 18, tolling means it is already running so it's not really running
-Why? the child does not have ability to make legal decisions
-can be brought up by parents or guardian prior to the end of the statute
-useful to wait for some situations like 17 year olds
-can only be brought once
Claim Statute
-before you can proceed against a government entity, you must fill out the claim form and give them the opportunity to settle the claim
-applies to any branch of the government
-governmental entity if sued, defendant is deceased
-time limit shorter and usually never tolled
-must be done 90 days before you sue, do not wait to file claim
Includes:
1. Notification of intent to sue
2. Information about the person making the claim
3. Description of the nature of the claim
4. Amount of the claim
Laches
-prevents lawsuit from being filed when in fairness to the defendant too much time has elapse, even though the statute of limitations has not expired
-defendant is unfairly hurt or prejudiced by the delay
-only applies to equitable cases
-equitable cases: cases in which the plaintiff is asking for something other than money
-court will look at your actions to see if they imply that you are not pursuing lawsuit
Example:
-seller no longer wants to sell house to the buyer w/ contract
-buyer buys another house
-buyer can still sue for breach of contract
-seller sells house to another person
-buyer than wants equitable remedy from seller
-court says buyer should have filed claim prior to action of buying another house
Tickler System
-a calendaring system to schedule important dates in lawsuits
-tickle the statute of limitations but early enough for preparation
-always calendar ahead of time, not just the expiration day
-do not rely only on the firm's calendars, use your own for your cases
-server back-ups for computerized ones/also hard copy
Turning down a case
-exercise care in stating opinion in the merits of a case
-always done in writing for the record with a letter stating:
1. "We are declining representation and taking on action on your behalf"
2. Advise a second opinion
3. Tell them the statute of limitations is running (do not have to tell them expiration date)
-make it personal, offer services in the future, can refer to other attorneys
Model Rules of Professional Conduct
-rules from American Bar Association on attorney behavior
-paralegals are responsible for their actions and it reflects on their attorneys
-can not neglect cases they have accepted
-frivolous claims: should not be pursued
1. CR11 Sanctions
2. Counterclaim
3. Financial interest
4. Jury is not stupid
5. 52% of good cases lose
6. Reputation/Reputation of Profession
7. 12b /Motion Summary Judgment
Conflict of Interest
-being in a position where your own needs and desires could lead to violation of duty
1. opposing party in new case was a prior client
2. worked on prior case
3. personal relationship with other party
-the firm can continue working on a case if they set up an ethical wall to prevent involvement "Chinese Wall"
-can handle if a written waiver from client
Ethical Concerns
-most lawsuits from clients are for lack of communication
1. Keep them in the loop
-always return calls promptly
-CC copy your client on everything you do
-call them with status updates
2. Give them your cell phone number
-security for the client
-unethical to contact opposing party directly if they have representation
-must record if the opposing client tried to call you and they have an attorney
-always be honest
Attorney Fees
-RPC Rule 1.5 Fees
1. Flat Fee
-legal fee based on fixed sum
-usually in volume work
-example: representation for landlords dealing with evictions, "lemon law" work, criminal defense
2. Hourly Billing
-fixed amount for each hour
-can not be excessive
-write down everything you do with every activity
3. Contingent Fee
-payment to lawyer is a percentage of winnings
-if no winnings, no fee
-under the idea that most clients can not afford lawyers
4. Sliding Scale
-depends on the case
Costs
-expenses in a lawsuit that the judge orders one side to pay
-what the attorney spends on behalf of the client, separate from fee
-RPC Rule 1.8 can not come out of the fee rule
Retainer
-representation agreement is better term
-employment of a lawyer by a client
-specific agreement
-sharing of fees RPC1.5(e)(1)(i), (ii),(iii)
-WA does not allow it
Friday, January 8, 2010
January 7th Notes
Litigation Basics
January 7, 2010
Subject Matter
-court and type of matter
-never a substitute for subject matter jurisdiction
Personal Jurisdiction
-relationship of court and the parties in the court
-minimal substitutes like in rem and quasi in rem
Chapter 2 page 48
In Rem Jurisdiction
-the court can still hear a case if it has jurisdiction over property that is the subject of a dispute
-can substitute personal jurisdiction
-limited to rendering judgments that affect only property
-cannot render personal judgments against the defendant that do not concern that property
-state always has jurisdiction over property in its borders
Ask:
-Does this concern property in the state and has proper notice been given to defendant?
Quasi In Rem Jurisdiction
1. defendant must own some property in the state, although the property need not be the subject of the lawsuit
2. any judgment is limited to the value of the property within the state, waive the right to seek all other property
3. that property is usually brought before the court at the beginning of the lawsuit through an attachment proceeding
-due process still requires that the exercise of jurisdiction be fair and the defendant be notified of the lawsuit
-situs: location of the property
-real property is unique to the state
Attachment
-formally seizing property in order to bring it under the control of the court
-done by getting a court order to have law enforcement take control of the property
Venue
-local area where a case may be tried that already have personal and subject matter jurisdiction is already covered
-jurisdiction is subject of fixed rules but venue is often left up to discretion
-a court's lack of proper venue does not render a judgment void
-if defendant does not object improper venue, than can not object judgment
-30 days from service you can opt to change venue
Federal Court Venue
-all districts within the state have personal jurisdiction, venue may be limited
Federal General Venue
Statue 28 U.S.C. § 1391
1. Judicial district where any defendant resides, as long as all the defendants reside in the same state
2. Judicial district where the acts that form the basis of the lawsuit occurred
-if action cannot be brought in any district meeting that criteria an alternative venue is provided depending on whether the action is based on diversity of citizenship
-if action is diversity of citizenship venue is property in any judicial district having personal jurisdiction over any defendant
-if lawsuit is based on some other basis, venue is proper in any judicial district in which any defendant can be found
-lawsuits on copyrights or trademarks may be brought in the district in which the defendant resides
-patent infringement actions may be brought in judicial district where the defendant resides or the defendant has committed acts of infringement and has a regular, established place of business 28 U.S.C. § 1400
-stockholder on behalf of his corporation may be brought in any judicial district where the corporation might have sued defendants 28 U.S.C. § 1401
-when the US is the defendant, venue is proper in judicial district where the plaintiff resides 28 U.S.C. § 1402
State Court Venue
-venue determined by state law
-usually in which the defendant resides or where the cause of the action arises
-other counties might also have proper venue
-contract cases actions can be heard in the county in which the contract was made, was performed, was breached
-title to real estate the action is normally heard wherever the real estate is located
WA State Venue Rules
-locates at RCW 4.12.010 et seq. and CR Court Rule 82
In state defendant:
-where action arose
-where the defendant or any of them reside
-Why? Due Process
Out of state defendant:
-plaintiff's residence
-where the long arm statute act occurred
-where the defendant is served
If the defendant is a corporation
-any county where they have an office or business
-where anyone that can receive process for the corp. resides
-where the tort was committed
-where the contract was entered
-where the corp. has a residence (state of inc.)
-where the corp. did work
-Real property venue is where the property is located
Forum non conveniens
-inconvenient forum, changing venue
1. If the burden on the defendant or witnesses unreasonable, unfair, hardship
2. Majority of evidence is in another county
-venue does not relate to the court's basic power to hear a case
-place of the trial can be changed only to another court that has jurisdiction
Motion for Change of Venue
-formal written request must be sent to where the lawsuit was filed
-must have a good reason such as
-not being able to get a fair trial
-case was not filed in proper court to begin with
-to be more convenient for the witnesses
Chapter 2 Review Questions
1. What are the functions of the trial courts of appeals in the litigation process?
2. How is the federal court system structured?
3. What are some of the different courts in state court systems?
4. What is the subject matter jurisdiction?
5. What are three types of cases that can be brought in federal court?
6. What is the difference between exclusive and concurrent jurisdiction?
7. When does a court have personal jurisdiction over a party to a lawsuit?
8. Why do states have long-arm statues?
9. What is the difference between personal jurisdiction and in rem jurisdiction?
10. What is venue?
WA Court Rules (State 2010)
--RPC Rules of Professional Ethics page 59
--ER Evidence Rules page 231
--RAP Rules of Appeals page 283
--CR Court Rules page 377
--MAR Arbitration Rules page 439
Chapter 3 page 60
Cause of Action
-facts sufficient to support a valid lawsuit
-the legal theory upon which a lawsuit is based
-CR 11 ethical obligations from having attorney's file lawsuits
-Remember first the law then the facts
-Clients are not reliable for facts
-identify the elements and present evidence that supports each element
Is there a cause of action?
1. Determine what general area of substantive law applies to the case
2. Examine that specific area and determine what factors of elements must be present
3. Review the case itself to see if facts exist that support the elements
Bruce's Cause of Action Triangle
-Building a fire: Heat -- Fuel -- O2
-Lawsuit: Liability -- Damages -- "Pocket" (someone to pay it)
Bruce's Sour Milk Theory
-cases never get better, they are bad from the start they will continue so
January 7, 2010
Subject Matter
-court and type of matter
-never a substitute for subject matter jurisdiction
Personal Jurisdiction
-relationship of court and the parties in the court
-minimal substitutes like in rem and quasi in rem
Chapter 2 page 48
In Rem Jurisdiction
-the court can still hear a case if it has jurisdiction over property that is the subject of a dispute
-can substitute personal jurisdiction
-limited to rendering judgments that affect only property
-cannot render personal judgments against the defendant that do not concern that property
-state always has jurisdiction over property in its borders
Ask:
-Does this concern property in the state and has proper notice been given to defendant?
Quasi In Rem Jurisdiction
1. defendant must own some property in the state, although the property need not be the subject of the lawsuit
2. any judgment is limited to the value of the property within the state, waive the right to seek all other property
3. that property is usually brought before the court at the beginning of the lawsuit through an attachment proceeding
-due process still requires that the exercise of jurisdiction be fair and the defendant be notified of the lawsuit
-situs: location of the property
-real property is unique to the state
Attachment
-formally seizing property in order to bring it under the control of the court
-done by getting a court order to have law enforcement take control of the property
Venue
-local area where a case may be tried that already have personal and subject matter jurisdiction is already covered
-jurisdiction is subject of fixed rules but venue is often left up to discretion
-a court's lack of proper venue does not render a judgment void
-if defendant does not object improper venue, than can not object judgment
-30 days from service you can opt to change venue
Federal Court Venue
-all districts within the state have personal jurisdiction, venue may be limited
Federal General Venue
Statue 28 U.S.C. § 1391
1. Judicial district where any defendant resides, as long as all the defendants reside in the same state
2. Judicial district where the acts that form the basis of the lawsuit occurred
-if action cannot be brought in any district meeting that criteria an alternative venue is provided depending on whether the action is based on diversity of citizenship
-if action is diversity of citizenship venue is property in any judicial district having personal jurisdiction over any defendant
-if lawsuit is based on some other basis, venue is proper in any judicial district in which any defendant can be found
-lawsuits on copyrights or trademarks may be brought in the district in which the defendant resides
-patent infringement actions may be brought in judicial district where the defendant resides or the defendant has committed acts of infringement and has a regular, established place of business 28 U.S.C. § 1400
-stockholder on behalf of his corporation may be brought in any judicial district where the corporation might have sued defendants 28 U.S.C. § 1401
-when the US is the defendant, venue is proper in judicial district where the plaintiff resides 28 U.S.C. § 1402
State Court Venue
-venue determined by state law
-usually in which the defendant resides or where the cause of the action arises
-other counties might also have proper venue
-contract cases actions can be heard in the county in which the contract was made, was performed, was breached
-title to real estate the action is normally heard wherever the real estate is located
WA State Venue Rules
-locates at RCW 4.12.010 et seq. and CR Court Rule 82
In state defendant:
-where action arose
-where the defendant or any of them reside
-Why? Due Process
Out of state defendant:
-plaintiff's residence
-where the long arm statute act occurred
-where the defendant is served
If the defendant is a corporation
-any county where they have an office or business
-where anyone that can receive process for the corp. resides
-where the tort was committed
-where the contract was entered
-where the corp. has a residence (state of inc.)
-where the corp. did work
-Real property venue is where the property is located
Forum non conveniens
-inconvenient forum, changing venue
1. If the burden on the defendant or witnesses unreasonable, unfair, hardship
2. Majority of evidence is in another county
-venue does not relate to the court's basic power to hear a case
-place of the trial can be changed only to another court that has jurisdiction
Motion for Change of Venue
-formal written request must be sent to where the lawsuit was filed
-must have a good reason such as
-not being able to get a fair trial
-case was not filed in proper court to begin with
-to be more convenient for the witnesses
Chapter 2 Review Questions
1. What are the functions of the trial courts of appeals in the litigation process?
2. How is the federal court system structured?
3. What are some of the different courts in state court systems?
4. What is the subject matter jurisdiction?
5. What are three types of cases that can be brought in federal court?
6. What is the difference between exclusive and concurrent jurisdiction?
7. When does a court have personal jurisdiction over a party to a lawsuit?
8. Why do states have long-arm statues?
9. What is the difference between personal jurisdiction and in rem jurisdiction?
10. What is venue?
WA Court Rules (State 2010)
--RPC Rules of Professional Ethics page 59
--ER Evidence Rules page 231
--RAP Rules of Appeals page 283
--CR Court Rules page 377
--MAR Arbitration Rules page 439
Chapter 3 page 60
Cause of Action
-facts sufficient to support a valid lawsuit
-the legal theory upon which a lawsuit is based
-CR 11 ethical obligations from having attorney's file lawsuits
-Remember first the law then the facts
-Clients are not reliable for facts
-identify the elements and present evidence that supports each element
Is there a cause of action?
1. Determine what general area of substantive law applies to the case
2. Examine that specific area and determine what factors of elements must be present
3. Review the case itself to see if facts exist that support the elements
Bruce's Cause of Action Triangle
-Building a fire: Heat -- Fuel -- O2
-Lawsuit: Liability -- Damages -- "Pocket" (someone to pay it)
Bruce's Sour Milk Theory
-cases never get better, they are bad from the start they will continue so
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