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