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?