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