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