This is a collection of notes from Bruce about the Mediation Brief due next week. Hope it helps make this a quick project.
-Sarah
-------------------------------------------------------------------------------------------
Mediation Project
Due March 3rd
Write up a Mediation Summary
-Based on one of the three scenarios
Form:
-Use either the handout from class (Weiner & Dougherty one)
or
-Use the book's examples on page 372-373
Tips on Writing Settlement Letter:
-Plaintiff background: do not give out useless background information
-Does not need conclusions, but needs to have arguments
-Persuade first then conclude
-Give details and treat them with the appropriate severity
**Do not put a Law section in your Mediation Project**
-No research for the project, this is about writing
-Be passionate for your cause
-Argue with an aggressive, non-passive voice
Watch your wording:
-"stated" poor choice, makes you look like you don't believe him
-Beware of terms like "good enough"
-It is impersonal to talk about your client as a plaintiff
-His Mediation example has great adjectives to use
Thursday, February 25, 2010
February 25th Notes
Litigation Basics
February 25, 2010
NEWS
3 Handouts
#18 Paralegal Article
#19 Misc. forms and sample jury instructions
#20 Case schedule and Misc. forms
Calendar for remainder of class
2/25 Trial
3/2 Finish Trial/Start Appellate
3/3 Electronic Discovery (on the final)
3/4 Job Placement Night - Required Attendance
-Bring 2 questions, Bring resumes
-Free pizza/soda
-Mediation Brief Due
3/9 Review
3/10 Finish Appellate (if necessary otherwise free night/study group here)
3/11 Final
------------------------------------------------------------------------
Jury Selection
-bring an idea of what you are looking for in a juror
-gathered from local citizenry
-taken from driver's license
-federal court is 12 civil
-many states are 8 for civil
-in the jury demand you must ask for 12, otherwise you get 6 in State Court Rule 28
Two methods
1. 6 pack method
-prefers this method
-6 of the jurors sit in the box
-then lawyers conduct voir dire
-replace them as needed by challenges
-addresses small selection of jury pool at one time
2. Phil Donahue method
-this method is preferred in WA
-lawyers voir dire the entire pool
-there is a clock running, usually 40 minutes
-problem is too many hands go out
-you have to write everything down so your lawyer can pick the ones he wants later
-must be careful in your questions without angering your jury
-submit your questions to the judge for him to ask
Voir Dire Process
-process by which the jurors are questioned to determine any bias that they might have that would affect their ability to be fair and impartial in the case
-each side in the suit has an unlimited number of these challenges for cause
-everyone has bias or knows parties
-the judge will seek to rehabilitate a juror if he does have a prejudice
-even if you preconceived ideas the judge will seek to rehabilitate
-can you still be fair and impartial in your decision
-usually the party challenge the cause
Two Ways to Challenges a Juror
1. For Cause
-relation, knows, bias, tainting the system
-unlimited
2. Peremptory Challenges
-3 jurors for any reason you like
-can be based on race, but not in a criminal case
-it's a personal thing
-do not have to use them
-automatic eliminations of potential jurors by one side before trial without needing to state the reason for the elimination
-each side has the right to certain number of challenges
The Trial
Opening Statement
-first step, introductory statement made at the start of the trial by each side
-there is no evidence, so there is nothing to argue, it is just a statement
-good to start with a roadmap
-tell them where they are going to be in ten days
-where you want to take the jury
-explains the version of the facts best supporting their side of the case, how these facts are proved, how they think the law applies to the case
-keep it brief, use ordinary language, make it interesting, use good body language
-most jurors only pay attention during the first 15 minutes
Tips
-you can use aids
-things you wish to show with visual aids
-may not be evidence or every used again
-very important to have these items to keep them interested
-15 minutes tends to be his limit on length
Definitions and Limitations
-presents facts to the jury and introduces the evidence that the attorney intends to use to prove those facts
-not permitted to argue their cases during opening statements
Importance of the Opening Statements
-jurors are very attentive
-"white hat syndrome" - good guy vs. bad guys
-people having bias
Characteristics of a Good Opening Statement
Delivering a Brief Opening Statement
-difficult to set a minimum length of time
-should be long enough to capture attention
-30 minutes, try to keep it under an hour
Delivering an Interesting Opening Statement
-take advantage of the attention of the jury
-captivating narrative of facts
Delivering an Understandable Opening Statement
-avoids legal jargon and speaks to the jurors
Delivering a Sympathetic Opening Statement
-show the jury that he believes in the righteousness of the client's cause
-do not refer to your client as "the plaintiff"
-use terms like we, our, us
-humor can be good but also can be devastating
Delivering a Tactful Opening Statement
-attorneys should not be overly emotional, too loud, or excessively boastful
-do not talk down to your jury
The Presentation of Evidence
-plaintiff presents his evidence by calling witnesses to testify and placing those witnesses under direct examination
-if there are requests for admission, the judge reads these before the plaintiff calls the first witness
-judge will instruct the jury to accept these are fact
-defendant then has the right to conduct a cross-examination of each witness
-plaintiff then has the opportunity to engage in cross-examination
Plaintiff's Case in Chief
Direct Examination
-the plaintiff's attorney calls each witness who will provide facts to verify the validity of the plaintiff's version of the case
Leading Questions by the Plaintiff
-exception to the rule that prohibits these
The Exceptions
1. adverse or hostile
2. child
3. expert
4. foundational information (where you go to school, live)
Rules Regarding the Plaintiff's Direct Examination
-all friendly witnesses should be properly and thoroughly prepared before the day of the trial
-includes, client, witnesses, experts, characters witnesses
-should not being getting unknown information at trial
-if it hasn't been covered do not bring it in
-know when to stop asking questions
-paralegals are essential here, knowing when the issue is covered
Cross-examination by the Defendant
-the scope of cross-examination is limited to the facts covered in direct examination
-if the defendant wants to explore new territory with a witness he will have to call the witness during the defendant's direct examination
-objective cross examination is to discredit the witness to cast doubt on the accuracy of the witness's testimony
Redirect Examination by the Plaintiff
-objective of this part of the trial process is to allow the plaintiff's attorney the change to reestablish the credibility of his witnesses and clear up any factual disputes raised on cross-examination
The Defendant's Case in Chief
Re-Direct Examination by the Defendant
-calls his witnesses and subjects them to direct examination
-may not ask his own witness leading questions
Leading Questions by Defendant
-can ask leading questions on hostile or adverse witnesses
Rules Regarding the Defendant Re-Direct Examination
-should never ask a question to which he does not already know the answer
Re-Cross-Examination by the Plaintiff
-discredit their witnesses to cast doubt on the accuracy of the testimony or to show witnesses are biased
Re-Re-direct Examination by the Defendant
-defendant same chance to reestablish credit to witnesses and clear up factual disputes on cross-examination
Re-Re-Cross
The Presentation of Rebuttal Evidence
-formal contradiction of statements made by an adversary
-each side has a chance to see the entire case in chief and have the chance to present rebuttal evidence
-discredit the other side evidence and reestablish the credibility of the side presenting rebuttal
Closing Argument
Definition and Limitations
-each side in a jury trial is allowed time at the end to present evidence to make this arguments
-not a rehash of the complete trial
-as an opportunity to do something different
-write it at the end of everyday of trial (in case trial ends early, good to remember case as it is ongoing)
-asking paralegals to write quotes from the trial
The Strategy of the Closing Argument
-explain their theories of the case and will demonstrate how the evidence presented at trial supports that theory
-may point out discrepancies between the witness's testimony in a deposition or interrogatories and his testimony during the actual trial
Characteristics of a Good Closing Argument
-delivering a Well-Planned Closing Argument
-attorney begins the closing arguments with his theory on the case and them moves to an explanation of the burden of proof and the evidence that strengthens his theory
Delivering a Persuasive Closing Argument
-must be persuasive, it is very difficult to manufacture, so it is extremely helpful if the attorney is convinced of the righteousness of her client's cause
Jury Deliberations
Jury Instructions
-the judge may instruct the jury on some things, such as law relating to the procedure of trial, the duties and functions of the jury, the law that pertains to the case, and use of evidence, before the trial begins and whenever needed during the trial
-before closing arguments, the judge will inform the attorneys how she will instruct the jury
-after closing arguments the judge delivers the jury instructions
-you can object to the instructions
-pleadings do not go in with the jury
-evidence goes with them
10 Jury Mistakes that lead to Mistrial
-if they are committed it can end in a mistrial
1. concealing facts or prejudices/lying at voir dire
-particularly if it due to a personal connection (challenge for cause)
2. consulting unauthorized evidence
-can only consider the evidence presented in trial
3. conducting experiments
-can not duplicate conditions
4. private studying of the evidence
5. no viewing the scene without court approval
6. outside communication or consultants
7. arguing facts or experiences that are not in evidence
-do not talk about similar experiences
8. no private consultations
9. chance and quotient verdicts are mistrials
chance verdict: jury is deadlocked and flip a coin to decide
quotient verdict: all agree on plaintiff but different amounts add up then divide
10. early judging of the evidence or reaching a conclusions before all the evidence has been admitted and discussed
Things Jurors can use at Trial
1. use of your knowledge and real world experience
-do not have to suspend your own experiences
2. allowed to ask for additional review of the deposition and trial transcripts
3. you can send questions out to the court for explanation and answers
4. jurors taking notes
-some judges do, some judges don't
-they are destroyed after trial
-helps keep track of testimony
-but can be a distraction, also harder to convince them what they wrote was wrong
-if there are notebooks they never level the courtroom
Types of Verdicts
-general verdicts: where the jury must simply decide in favor or the plaintiff by specifying an amount of the money damages or decided in favor of the defendant
-general verdicts with interrogatories: requires the jury find for the plaintiff or the defendant and requires that the jury members answer specific fact questions
-Rule 49
-special verdict: jury answers specific questions about the case and the court them applies the law to the facts found by the jury to determine which party is entitled to judgment
Actual Deliberations
-it considers the evidence in light of the instructions given by the judge and attempts to arrive at a verdict
-in federal court, in a civil case, a unanimous verdict is required unless the parties have agreed on some number less than a majority
-in state courts, a 3/4 majority is sufficient for a verdict in a civil case
-depends on the State 10 of 12 in WA
Rendering a Verdict
-parties and lawyers are not required to wait at the courthouse for a verdict
Polling the Jury
-involves asking each juror if the verdict announced was the verdict that he/she rendered
-if 6-8 answers during the polling process that they agreed with the verdict, the jury members are discharged
-if fewer than 6 concur with the verdict, the jurors are sent back to continue deliberations
-good for affidavits
-and who was on your side and if they might help you later
-ALWAYS poll a jury
-finding out who said what
-but do not tamper with or argue with them
Motions During Trial
motion for judgment as a matter of law(motion for a directed verdict)
-allows the trial judge to remove a case or issues in a case from the jury's consideration when the facts are sufficiently clear that the law mandates a particular results
Two situations that generally result in the court's granting JMOL
1. there is total absence of pleading or proof on an issue that is material to the claim or defense
2. there are no controverted issues of facts on which reasonable persons could differ
-2006 amendment requires the re-urging of the motion only after a verdict has been reached
motion for involuntary dismissal
-move for dismissal upon facts and laws without waiving the right to offer evidence if the motion is not granted
-Rule 41(b)
motion to strike
-a party can move to strike evidence that has been improperly admitted
-include a request that the judge instruct the jurors in ajury trial to disregard the improper evidence during its deliberations
motion for mistrial
-party asks the court to terminate the trial before judgment and set the case for trial at another time on the basis of improprieties
-reserved for impropriety so severe that a party can not receive a fair trial before this particular jury
Motions at the end of Trial
renewed motion for judgment as a matter of law
JNOV
Non Obstante Veredicto
Judgement not-withstanding the verdict
-called jury nullification
-judge reverse the juries verdict
-asks the district court to disregard the jury findings and enter judgment for he movant in spite of the jury's verdict for the nonmovant
-Rule 50(a)(2) permits the consideration of a renewed motion only is the moving party made the motion before the case was submitted to jury
-objections by the nonmovant are permitted under Rule 50 with no deadlines for the filing specified
-they usually grant a new trial or send it to appeals
motion for new trial
-asking the trial court to order a new trial when prejudicial error has occurred or when for any reason a fair trial was prevented
-opposition may file a responsiveness affidavit within 10 days of the date of the motion for a new trial was filed
curative instruction
-mentioned something you should not, harass witness, things of this nature, etc.
-judge instructions jury to disregard this evidence
-if that instruction can no fix it, it is a mistrial
-can leads to sanctions
Paralegal's Role
Ensuring the Presence of Witnesses
-transportation of witnesses
-keeping witness calm from stress and anxiety
Other Work
-trial brief
-direct and cross examination written
-watching how much the lawyer speaks
-witness preparation
-7 copies of everything
-indexed everything necessary and ready for lawyer use
-always the same layout for jury
J
u | Juror 1 | Juror 2 | Juror 3 | Juror 4 | Juror 5 | Juror 6 |
d __________________________________________
g | Juror 7 | Juror 8 | Juror 9 | Juror 10 | Juror 11| Juror 12 |
e
Keeping Track of Exhibits
Participating in Jury Selection
-take notes while attorney exams jury
-body language, communication to factual issues
-notes of strikes, who struck it, how many strikes each side has used, and potential jurors who have been excused
Taking Notes during Trial
-the attorney is very busy so this helps him out
-helps in preparing your closing
-talk with the lawyer about the case
-need at the end when if you are going to have an appeal
-notes on all objections for appeal
-denials, judge's ruling
-good for preparing your witnesses
-timed and dated can assist for appeals
Chapter 15 Review Questions
1. What are the paralegal's duties in trial preparation?
2. What is the purpose of the trial notebook?
3. What are the contents of the trial notebook?
4. What responsibilities does the paralegal have in preparing witness for trial?
5. What are the standards by which a trial exhibit is evaluated?
6. What duties does the paralegal have in preparing the logistics of the trial?
7. What motions might be appropriate during a trial?
8. What are the paralegal's duties in preparing for the jury process?
9. What duties does the paralegal perform during trial?
10. What are the major components of a trial?
February 25, 2010
NEWS
3 Handouts
#18 Paralegal Article
#19 Misc. forms and sample jury instructions
#20 Case schedule and Misc. forms
Calendar for remainder of class
2/25 Trial
3/2 Finish Trial/Start Appellate
3/3 Electronic Discovery (on the final)
3/4 Job Placement Night - Required Attendance
-Bring 2 questions, Bring resumes
-Free pizza/soda
-Mediation Brief Due
3/9 Review
3/10 Finish Appellate (if necessary otherwise free night/study group here)
3/11 Final
------------------------------------------------------------------------
Jury Selection
-bring an idea of what you are looking for in a juror
-gathered from local citizenry
-taken from driver's license
-federal court is 12 civil
-many states are 8 for civil
-in the jury demand you must ask for 12, otherwise you get 6 in State Court Rule 28
Two methods
1. 6 pack method
-prefers this method
-6 of the jurors sit in the box
-then lawyers conduct voir dire
-replace them as needed by challenges
-addresses small selection of jury pool at one time
2. Phil Donahue method
-this method is preferred in WA
-lawyers voir dire the entire pool
-there is a clock running, usually 40 minutes
-problem is too many hands go out
-you have to write everything down so your lawyer can pick the ones he wants later
-must be careful in your questions without angering your jury
-submit your questions to the judge for him to ask
Voir Dire Process
-process by which the jurors are questioned to determine any bias that they might have that would affect their ability to be fair and impartial in the case
-each side in the suit has an unlimited number of these challenges for cause
-everyone has bias or knows parties
-the judge will seek to rehabilitate a juror if he does have a prejudice
-even if you preconceived ideas the judge will seek to rehabilitate
-can you still be fair and impartial in your decision
-usually the party challenge the cause
Two Ways to Challenges a Juror
1. For Cause
-relation, knows, bias, tainting the system
-unlimited
2. Peremptory Challenges
-3 jurors for any reason you like
-can be based on race, but not in a criminal case
-it's a personal thing
-do not have to use them
-automatic eliminations of potential jurors by one side before trial without needing to state the reason for the elimination
-each side has the right to certain number of challenges
The Trial
Opening Statement
-first step, introductory statement made at the start of the trial by each side
-there is no evidence, so there is nothing to argue, it is just a statement
-good to start with a roadmap
-tell them where they are going to be in ten days
-where you want to take the jury
-explains the version of the facts best supporting their side of the case, how these facts are proved, how they think the law applies to the case
-keep it brief, use ordinary language, make it interesting, use good body language
-most jurors only pay attention during the first 15 minutes
Tips
-you can use aids
-things you wish to show with visual aids
-may not be evidence or every used again
-very important to have these items to keep them interested
-15 minutes tends to be his limit on length
Definitions and Limitations
-presents facts to the jury and introduces the evidence that the attorney intends to use to prove those facts
-not permitted to argue their cases during opening statements
Importance of the Opening Statements
-jurors are very attentive
-"white hat syndrome" - good guy vs. bad guys
-people having bias
Characteristics of a Good Opening Statement
Delivering a Brief Opening Statement
-difficult to set a minimum length of time
-should be long enough to capture attention
-30 minutes, try to keep it under an hour
Delivering an Interesting Opening Statement
-take advantage of the attention of the jury
-captivating narrative of facts
Delivering an Understandable Opening Statement
-avoids legal jargon and speaks to the jurors
Delivering a Sympathetic Opening Statement
-show the jury that he believes in the righteousness of the client's cause
-do not refer to your client as "the plaintiff"
-use terms like we, our, us
-humor can be good but also can be devastating
Delivering a Tactful Opening Statement
-attorneys should not be overly emotional, too loud, or excessively boastful
-do not talk down to your jury
The Presentation of Evidence
-plaintiff presents his evidence by calling witnesses to testify and placing those witnesses under direct examination
-if there are requests for admission, the judge reads these before the plaintiff calls the first witness
-judge will instruct the jury to accept these are fact
-defendant then has the right to conduct a cross-examination of each witness
-plaintiff then has the opportunity to engage in cross-examination
Plaintiff's Case in Chief
Direct Examination
-the plaintiff's attorney calls each witness who will provide facts to verify the validity of the plaintiff's version of the case
Leading Questions by the Plaintiff
-exception to the rule that prohibits these
The Exceptions
1. adverse or hostile
2. child
3. expert
4. foundational information (where you go to school, live)
Rules Regarding the Plaintiff's Direct Examination
-all friendly witnesses should be properly and thoroughly prepared before the day of the trial
-includes, client, witnesses, experts, characters witnesses
-should not being getting unknown information at trial
-if it hasn't been covered do not bring it in
-know when to stop asking questions
-paralegals are essential here, knowing when the issue is covered
Cross-examination by the Defendant
-the scope of cross-examination is limited to the facts covered in direct examination
-if the defendant wants to explore new territory with a witness he will have to call the witness during the defendant's direct examination
-objective cross examination is to discredit the witness to cast doubt on the accuracy of the witness's testimony
Redirect Examination by the Plaintiff
-objective of this part of the trial process is to allow the plaintiff's attorney the change to reestablish the credibility of his witnesses and clear up any factual disputes raised on cross-examination
The Defendant's Case in Chief
Re-Direct Examination by the Defendant
-calls his witnesses and subjects them to direct examination
-may not ask his own witness leading questions
Leading Questions by Defendant
-can ask leading questions on hostile or adverse witnesses
Rules Regarding the Defendant Re-Direct Examination
-should never ask a question to which he does not already know the answer
Re-Cross-Examination by the Plaintiff
-discredit their witnesses to cast doubt on the accuracy of the testimony or to show witnesses are biased
Re-Re-direct Examination by the Defendant
-defendant same chance to reestablish credit to witnesses and clear up factual disputes on cross-examination
Re-Re-Cross
The Presentation of Rebuttal Evidence
-formal contradiction of statements made by an adversary
-each side has a chance to see the entire case in chief and have the chance to present rebuttal evidence
-discredit the other side evidence and reestablish the credibility of the side presenting rebuttal
Closing Argument
Definition and Limitations
-each side in a jury trial is allowed time at the end to present evidence to make this arguments
-not a rehash of the complete trial
-as an opportunity to do something different
-write it at the end of everyday of trial (in case trial ends early, good to remember case as it is ongoing)
-asking paralegals to write quotes from the trial
The Strategy of the Closing Argument
-explain their theories of the case and will demonstrate how the evidence presented at trial supports that theory
-may point out discrepancies between the witness's testimony in a deposition or interrogatories and his testimony during the actual trial
Characteristics of a Good Closing Argument
-delivering a Well-Planned Closing Argument
-attorney begins the closing arguments with his theory on the case and them moves to an explanation of the burden of proof and the evidence that strengthens his theory
Delivering a Persuasive Closing Argument
-must be persuasive, it is very difficult to manufacture, so it is extremely helpful if the attorney is convinced of the righteousness of her client's cause
Jury Deliberations
Jury Instructions
-the judge may instruct the jury on some things, such as law relating to the procedure of trial, the duties and functions of the jury, the law that pertains to the case, and use of evidence, before the trial begins and whenever needed during the trial
-before closing arguments, the judge will inform the attorneys how she will instruct the jury
-after closing arguments the judge delivers the jury instructions
-you can object to the instructions
-pleadings do not go in with the jury
-evidence goes with them
10 Jury Mistakes that lead to Mistrial
-if they are committed it can end in a mistrial
1. concealing facts or prejudices/lying at voir dire
-particularly if it due to a personal connection (challenge for cause)
2. consulting unauthorized evidence
-can only consider the evidence presented in trial
3. conducting experiments
-can not duplicate conditions
4. private studying of the evidence
5. no viewing the scene without court approval
6. outside communication or consultants
7. arguing facts or experiences that are not in evidence
-do not talk about similar experiences
8. no private consultations
9. chance and quotient verdicts are mistrials
chance verdict: jury is deadlocked and flip a coin to decide
quotient verdict: all agree on plaintiff but different amounts add up then divide
10. early judging of the evidence or reaching a conclusions before all the evidence has been admitted and discussed
Things Jurors can use at Trial
1. use of your knowledge and real world experience
-do not have to suspend your own experiences
2. allowed to ask for additional review of the deposition and trial transcripts
3. you can send questions out to the court for explanation and answers
4. jurors taking notes
-some judges do, some judges don't
-they are destroyed after trial
-helps keep track of testimony
-but can be a distraction, also harder to convince them what they wrote was wrong
-if there are notebooks they never level the courtroom
Types of Verdicts
-general verdicts: where the jury must simply decide in favor or the plaintiff by specifying an amount of the money damages or decided in favor of the defendant
-general verdicts with interrogatories: requires the jury find for the plaintiff or the defendant and requires that the jury members answer specific fact questions
-Rule 49
-special verdict: jury answers specific questions about the case and the court them applies the law to the facts found by the jury to determine which party is entitled to judgment
Actual Deliberations
-it considers the evidence in light of the instructions given by the judge and attempts to arrive at a verdict
-in federal court, in a civil case, a unanimous verdict is required unless the parties have agreed on some number less than a majority
-in state courts, a 3/4 majority is sufficient for a verdict in a civil case
-depends on the State 10 of 12 in WA
Rendering a Verdict
-parties and lawyers are not required to wait at the courthouse for a verdict
Polling the Jury
-involves asking each juror if the verdict announced was the verdict that he/she rendered
-if 6-8 answers during the polling process that they agreed with the verdict, the jury members are discharged
-if fewer than 6 concur with the verdict, the jurors are sent back to continue deliberations
-good for affidavits
-and who was on your side and if they might help you later
-ALWAYS poll a jury
-finding out who said what
-but do not tamper with or argue with them
Motions During Trial
motion for judgment as a matter of law(motion for a directed verdict)
-allows the trial judge to remove a case or issues in a case from the jury's consideration when the facts are sufficiently clear that the law mandates a particular results
Two situations that generally result in the court's granting JMOL
1. there is total absence of pleading or proof on an issue that is material to the claim or defense
2. there are no controverted issues of facts on which reasonable persons could differ
-2006 amendment requires the re-urging of the motion only after a verdict has been reached
motion for involuntary dismissal
-move for dismissal upon facts and laws without waiving the right to offer evidence if the motion is not granted
-Rule 41(b)
motion to strike
-a party can move to strike evidence that has been improperly admitted
-include a request that the judge instruct the jurors in ajury trial to disregard the improper evidence during its deliberations
motion for mistrial
-party asks the court to terminate the trial before judgment and set the case for trial at another time on the basis of improprieties
-reserved for impropriety so severe that a party can not receive a fair trial before this particular jury
Motions at the end of Trial
renewed motion for judgment as a matter of law
JNOV
Non Obstante Veredicto
Judgement not-withstanding the verdict
-called jury nullification
-judge reverse the juries verdict
-asks the district court to disregard the jury findings and enter judgment for he movant in spite of the jury's verdict for the nonmovant
-Rule 50(a)(2) permits the consideration of a renewed motion only is the moving party made the motion before the case was submitted to jury
-objections by the nonmovant are permitted under Rule 50 with no deadlines for the filing specified
-they usually grant a new trial or send it to appeals
motion for new trial
-asking the trial court to order a new trial when prejudicial error has occurred or when for any reason a fair trial was prevented
-opposition may file a responsiveness affidavit within 10 days of the date of the motion for a new trial was filed
curative instruction
-mentioned something you should not, harass witness, things of this nature, etc.
-judge instructions jury to disregard this evidence
-if that instruction can no fix it, it is a mistrial
-can leads to sanctions
Paralegal's Role
Ensuring the Presence of Witnesses
-transportation of witnesses
-keeping witness calm from stress and anxiety
Other Work
-trial brief
-direct and cross examination written
-watching how much the lawyer speaks
-witness preparation
-7 copies of everything
-indexed everything necessary and ready for lawyer use
-always the same layout for jury
J
u | Juror 1 | Juror 2 | Juror 3 | Juror 4 | Juror 5 | Juror 6 |
d __________________________________________
g | Juror 7 | Juror 8 | Juror 9 | Juror 10 | Juror 11| Juror 12 |
e
Keeping Track of Exhibits
Participating in Jury Selection
-take notes while attorney exams jury
-body language, communication to factual issues
-notes of strikes, who struck it, how many strikes each side has used, and potential jurors who have been excused
Taking Notes during Trial
-the attorney is very busy so this helps him out
-helps in preparing your closing
-talk with the lawyer about the case
-need at the end when if you are going to have an appeal
-notes on all objections for appeal
-denials, judge's ruling
-good for preparing your witnesses
-timed and dated can assist for appeals
Chapter 15 Review Questions
1. What are the paralegal's duties in trial preparation?
2. What is the purpose of the trial notebook?
3. What are the contents of the trial notebook?
4. What responsibilities does the paralegal have in preparing witness for trial?
5. What are the standards by which a trial exhibit is evaluated?
6. What duties does the paralegal have in preparing the logistics of the trial?
7. What motions might be appropriate during a trial?
8. What are the paralegal's duties in preparing for the jury process?
9. What duties does the paralegal perform during trial?
10. What are the major components of a trial?
February 24th Notes
Litigation Basics
February 24, 2010
NEWS
For your projects due tomorrow:
Please staple all parts and in the following order:
1. Memo
2. Rogs
3. RTP
4. RTA
-------------------------------------------------------------------
Witness Instructions page 410
-get there early
-dress clean and professional
-do not discuss your testimony with anyone
-talk clearly
-listen clearly
-do not guess at answers
-follow lawyer's advice
-look at the lawyer asking the question
-avoid qualifiers
-do not argue
-be polite
-requests breaks when needed
-if an answer has changed, make it known immediately
Preparation of Exhibits and Briefs
Copies are important
-7 copies of everything
1. Opposing counsel
2. Trial Notebook
3. Judge
4. Witness
5. Court Clerk
6. Spare
7. Spare
Preparing Trial Exhibits
-require that parties exchange lists of all the trial exhibits before the trial
Enlarged Exhibits and Unusual Graphics
-do several weeks in advance
-80% learning is visual
-keeps the jury entertained
-any key piece of evidence, even if it won't be admitted, help the jury understand
-4X6 on easel, overhead projector, powerpoint on screen
-fill the courtroom with your evidence
-the jury can bring flipbooks and easel into deliberations with them
-make it dramatic and sympathetic
Preparing a Chronology of the Case
-review the litigation files, depositions and documents and construct critical events
-this is not evidence but can help the jury understand the significant theories in the case
Evaluating Documents as Trial Exhibits
-how effective a document will be as a trial exhibit?
-asks friends, coworkers and random people what they think
1. relevant
2. admissible
3. necessary (obvious)
4. support the cause of action
5. confusing (obvious)
6. repetitive information
7. detraction from the witness's testimony
8. increase the effectiveness of the witness's testimony
9. easy to read from the jury box and counsel table
10. accurate (obvious)
11. attractive appearance
12. clear (obvious)
13. make a clear and readable copy
14. procedural foundation be laid for introduction of the document at trial
Researching for the Trial Brief
-trial brief: a document prepared by a lawyer to use at trial, contains lists of witnesses, evidence, and citations, arguments to be presented
-ALWAYS do a trial brief
-freebie on explaining to the judge your case
-same with summary judgment
-gets the judge thinking about the case on your terms
-trial brief does not have to be neutral, you can be an advocate for it
-do not be overly dramatic since this goes to the judge
-cite check: verifying the accuracy and proper form of all the citations in a document
-very important to do this well
-never cite a case that is overruled or reversed
Example on page 413
-make it interesting to read
-no strict format to it
-when citing, make sure to quote and make it relevant to your case
-show how it should end to the judge
Coordinating Trial Logistics
Arranging Accommodations
-paralegal may be responsible for travel, hotel and food arrangements
-for attorney, yourself, witnesses
-make it near the courthouse
-setting up a base of operations at a hotel is a great idea to keep cases going smoother
-client usually pays for it
Visiting the Courthouse
-determine amount of space available for exhibits, briefcases, supplies, easels, charts, chalkboards, projectors, video equipment, audio equipment
-just need to get comfortable with the setting
-helps the client feel at ease, lets your witnesses know where things are
-the more mystery taken out, the better the result
-what services are available in the courthouse
-trial box: consisting of all supplies needed during the trial should be put together after the visit to the courthouse (page 419 list)
-ask the clerk if you can leave exhibits at the court
-if something is going to go wrong without, safe guard it
Preliminary Steps in the Trial Process
Decisions Regarding Jury Trials
-7th Amendment guarantees the right to trial by jury in certain types of civil cases
-preserves the right to a jury trial in cases involving common law for those litigants who wish to take advantage of this right
Factors in Choosing a Judge or a Jury Trial
-first factor to consider is the complexity of the case
-available time
-condition of the client
-location of the trial can be a factor in the decision to demand a jury trial
***be sure to be able to give 6-15 factors on how to choose a jury***
Requesting a Jury Trial
-Rule 38(b) requires litigants to demand a trial by jury
-made in writing at any time after the lawsuit has begun but not later than 10 days after the last pleading in the case has been filed
-State Rule 38 different
The Jury Process
-includes juror profile, mock jury trial, shadow jury
Preparing a Juror Profile
-purpose of the juror profile is to determine a composite profile of the ideal jurors for a particular case
-looking for the ideal juror
-all around ideal and most sympathetic to our case
-important to know how these jurors will react to the case
-good to know their profiles on home, education, work, lifestyle
Important Points
-still no guarantees that they will be ideal for your case
-a young person may be more sympathetic than you realize in an old person's case
-overcome their prejudices that they don't have any prejudices
-huge divide between rich and poor in this country, more so than racial in law
Holding a Mock Jury Trial
mock trial: practice trial to the date of the actual trial, intended to reveal the strengths and weaknesses of a party's case
mock jury: group of independent individuals chosen to reflect the probable makeup of the actual jury
Using Shadow Juries
shadow jury: group of persons paid by one side in a lawsuit to observe the trial and give their reactions to it
February 24, 2010
NEWS
For your projects due tomorrow:
Please staple all parts and in the following order:
1. Memo
2. Rogs
3. RTP
4. RTA
-------------------------------------------------------------------
Witness Instructions page 410
-get there early
-dress clean and professional
-do not discuss your testimony with anyone
-talk clearly
-listen clearly
-do not guess at answers
-follow lawyer's advice
-look at the lawyer asking the question
-avoid qualifiers
-do not argue
-be polite
-requests breaks when needed
-if an answer has changed, make it known immediately
Preparation of Exhibits and Briefs
Copies are important
-7 copies of everything
1. Opposing counsel
2. Trial Notebook
3. Judge
4. Witness
5. Court Clerk
6. Spare
7. Spare
Preparing Trial Exhibits
-require that parties exchange lists of all the trial exhibits before the trial
Enlarged Exhibits and Unusual Graphics
-do several weeks in advance
-80% learning is visual
-keeps the jury entertained
-any key piece of evidence, even if it won't be admitted, help the jury understand
-4X6 on easel, overhead projector, powerpoint on screen
-fill the courtroom with your evidence
-the jury can bring flipbooks and easel into deliberations with them
-make it dramatic and sympathetic
Preparing a Chronology of the Case
-review the litigation files, depositions and documents and construct critical events
-this is not evidence but can help the jury understand the significant theories in the case
Evaluating Documents as Trial Exhibits
-how effective a document will be as a trial exhibit?
-asks friends, coworkers and random people what they think
1. relevant
2. admissible
3. necessary (obvious)
4. support the cause of action
5. confusing (obvious)
6. repetitive information
7. detraction from the witness's testimony
8. increase the effectiveness of the witness's testimony
9. easy to read from the jury box and counsel table
10. accurate (obvious)
11. attractive appearance
12. clear (obvious)
13. make a clear and readable copy
14. procedural foundation be laid for introduction of the document at trial
Researching for the Trial Brief
-trial brief: a document prepared by a lawyer to use at trial, contains lists of witnesses, evidence, and citations, arguments to be presented
-ALWAYS do a trial brief
-freebie on explaining to the judge your case
-same with summary judgment
-gets the judge thinking about the case on your terms
-trial brief does not have to be neutral, you can be an advocate for it
-do not be overly dramatic since this goes to the judge
-cite check: verifying the accuracy and proper form of all the citations in a document
-very important to do this well
-never cite a case that is overruled or reversed
Example on page 413
-make it interesting to read
-no strict format to it
-when citing, make sure to quote and make it relevant to your case
-show how it should end to the judge
Coordinating Trial Logistics
Arranging Accommodations
-paralegal may be responsible for travel, hotel and food arrangements
-for attorney, yourself, witnesses
-make it near the courthouse
-setting up a base of operations at a hotel is a great idea to keep cases going smoother
-client usually pays for it
Visiting the Courthouse
-determine amount of space available for exhibits, briefcases, supplies, easels, charts, chalkboards, projectors, video equipment, audio equipment
-just need to get comfortable with the setting
-helps the client feel at ease, lets your witnesses know where things are
-the more mystery taken out, the better the result
-what services are available in the courthouse
-trial box: consisting of all supplies needed during the trial should be put together after the visit to the courthouse (page 419 list)
-ask the clerk if you can leave exhibits at the court
-if something is going to go wrong without, safe guard it
Preliminary Steps in the Trial Process
Decisions Regarding Jury Trials
-7th Amendment guarantees the right to trial by jury in certain types of civil cases
-preserves the right to a jury trial in cases involving common law for those litigants who wish to take advantage of this right
Factors in Choosing a Judge or a Jury Trial
-first factor to consider is the complexity of the case
-available time
-condition of the client
-location of the trial can be a factor in the decision to demand a jury trial
***be sure to be able to give 6-15 factors on how to choose a jury***
Requesting a Jury Trial
-Rule 38(b) requires litigants to demand a trial by jury
-made in writing at any time after the lawsuit has begun but not later than 10 days after the last pleading in the case has been filed
-State Rule 38 different
The Jury Process
-includes juror profile, mock jury trial, shadow jury
Preparing a Juror Profile
-purpose of the juror profile is to determine a composite profile of the ideal jurors for a particular case
-looking for the ideal juror
-all around ideal and most sympathetic to our case
-important to know how these jurors will react to the case
-good to know their profiles on home, education, work, lifestyle
Important Points
-still no guarantees that they will be ideal for your case
-a young person may be more sympathetic than you realize in an old person's case
-overcome their prejudices that they don't have any prejudices
-huge divide between rich and poor in this country, more so than racial in law
Holding a Mock Jury Trial
mock trial: practice trial to the date of the actual trial, intended to reveal the strengths and weaknesses of a party's case
mock jury: group of independent individuals chosen to reflect the probable makeup of the actual jury
Using Shadow Juries
shadow jury: group of persons paid by one side in a lawsuit to observe the trial and give their reactions to it
Tuesday, February 23, 2010
February 23rd Notes
Litigation Basics
February 23, 2010
NEWS
Calendar:
3/3 Electronic Discovery
3/4 Law Dawgs
3/9 Review
3/11 Final
--------------------------------------------
Chapter 15
Dedication, Organization, Preparation
Preliminary Preparation for Trial
-develop a trial checklist
-before the trial and timeframe for completion of those tasks
Trial Prep List page 397
Pretrial Conference
-meeting between the presiding judge and attorneys to facilitate both the preparation for and management of a trial
-there may be 2 such conferences, 1 several weeks before the trial, and the final pretrial conference immediately before trial.
-Federal Rule 16(c) or States are county by county
-stipulations regarding the handling of evidence
-Rule 16(c)(9) authorizes the presiding judge to encourage settlement negotiations
File Organization
-always file properly
Amending the Pleadings
-Rule 15 once a case has been placed on the trial calendar, you can only amend once with permission of the court or with written consent of the opposing party
Motions at the Beginning of Trial
motion in limeine
-one of the first motions filed before or at the beginning of the trial, frequently used to prevent opposing counsel from introducing certain evidence at trial
-"at the threshold"
-can use to attempt to exclude an opponent's expert witness or an expert opinion
The Trial Notebook
*most important item*
-critically important to the lawyer, very individual to each attorney, need to find out how they like it
-a binder that contains, in complete or summary form everything necessary to prosecute or defend a case
Bruce's trial notebook
-Opening statement
-Closing arguments
-Outline of the direct and cross of every witness and exhibit
-documents you tend to introduce through them
1. parties and attorneys
-all involved in the lawsuit
-contract information
2. pleadings, motions, discovery responses
-separate notebooks for each one
-keep all these items separate from the real trial notebook
-motions you intend to break not discovery motions
3. witnesses
-list of all witnesses
-contact information
-summary of facts that each witnesses is expected to speak about
-outline of where we are going
-what will cross on others
4. expert witnesses
-list all witnesses
-curriculum vitae: list of expert's credentials including each educational, professional credentials, and summary of publications and research projects
5. document indexes *the most important one*
-index of all by each party that produced it
-need to be able to find documents immediately during trial
-find a system that works for you
-this is what makes top notch litigation paralegals
6. deposition summaries
-arrange by the 3 types
1. page line page 263-264
-these are great to have in the notebook
2. topical
3. chronological
7. chronologically
-what happened, when happened
-trial rarely follows this order, it goes for maximum impact
-order of how I want the witnesses, the documents to produce with them
8. cast of characters
-all key parties involved
9. legal research
-on point: a law or prior case that directly applies to the facts of the present case
-facts and legal principles
-not necessary in here
-these are also in summary judgment, trial brief, in the motions, jury instructions
10. trial exhibits
-exhibit list, party that produced it, witnesses, objections to, court's ruling, admitting, rejections
11. jury profiles and instructions
-ideal jury for the case
-jury instruction: directions given to the jury explaining the law that applies in the case and spelling out what must be proved and by whom, there are given just before the jury is sent out to deliberate and return a verdict
-instructed on the law on how they should apply it
12. trial outline
-chronological listing of the tasks that must be performed prior to trial
-voir dire examination: process by which the jurors are questioned to determine any bias they might have that would affect their ability to be fair and impartial in the case
Reasons it is used:
-1. just to test for bias (legitimate)
-2. establish report with the jury (not a legitimate function of voir dire)
-3. condition the jury to be favorable to our case (not a legitimate function of voir dire)
13. attorney notes
14. any "to do" list
Handling Exhibits
Mark for identification
-Asking to identify a document the name of "Exhibit 1"
-easier to follow
-not in evidence, might be objectionable, is hearsay, might be prejudicial, lack foundation
-can mark almost anything as an exhibit
-once it is marked at identified you must make an index of the documents so you can easily find it
# | Exhibit | P/D | Objection | Date | Admitted
---------------------------------------------------------------------------
1 | Contract | P | | 11/12 | X
2 | Bill from cash | D | X | 11/15 |
3 | Letter | D | | 11/15 | X
4 | Subcontract | P | | 11/12 | X
Motion to move into Evidence
1.make a motion to move it into evidence
-then the judge will ask for objections
-if none, the judge places it in evidence
2. can happen exhibit by exhibit
-or ask all exhibits put in evidence then have the other side objection to ones they want to
-judge will look at objections and move everything at one time
Move into evidence
-making a document from exhibit to evidence
Preparation of Witnesses
-arranging for the sending of subpoenas to certain witnesses
-communication of the trial to the witnesses
-required to arrange and attend all witness preparation meetings
Subpoena of Witnesses
-witnesses may need them to get out of work
-Rule 45
-any person who is over 18 can serve
-valid for dates reflected and for remainder of the trial unless they are dismissed
-may challenge the subpoena on the basis that is unreasonable, oppressive, insufficient through a motion to quash, modify, vacate
-return of service on the subpoena must be completed and filed with the court for the subpoena to be considered valid
Difference of the Complaint and Summons
doesn't have to be left with a person of suitable age and discretion who lives there, usual abode
1. suitable age/discretion
2. lives there
3. usual abode
Why? What about Due Process?
-Witnesses are not required and are not gaining or losing anything from the lawsuit
-there is due process just limited
Federal Rules are different than State Rules
-you must serve it to someone
-must be personally served
-the clerk is responsible for issuing subpoenas
-in State the attorney issues them
Communicating with Witnesses
-remind them to review their deposition
-designated contact person with the law firm
Witness Preparation Meeting
-arrange a meeting with the attorney and witness
-review the deposition
-go over the deposition with the witness
-update them on the trial, especially if it bears on their testimony
-correlate the necessary trial exhibits with that outline
-conduct mock question sessions so that the witnesses will know exactly what questions will be asked during direct examination
-their choices are to either attend all trial, be on 1 hour notice, or agree in lieu of a repeat subpoena
Two key aspects of witness's testimony
1. scared to death, terrified
Biggest fears of Most people
1. Public Speaking
2. Snakes
3. Death
2. Persuasive Speaking
-nonverbal cues (body) 55%
-voice inflection 38%
-language (word choice) 7%
-do not have to subpoena a friendly witness to trial
Why? CR 43(f) Adverse Party as a Witness
1. Managing Agent (Corporations)
-solely by notice 10 business days before trial
February 23, 2010
NEWS
Calendar:
3/3 Electronic Discovery
3/4 Law Dawgs
3/9 Review
3/11 Final
--------------------------------------------
Chapter 15
Dedication, Organization, Preparation
Preliminary Preparation for Trial
-develop a trial checklist
-before the trial and timeframe for completion of those tasks
Trial Prep List page 397
Pretrial Conference
-meeting between the presiding judge and attorneys to facilitate both the preparation for and management of a trial
-there may be 2 such conferences, 1 several weeks before the trial, and the final pretrial conference immediately before trial.
-Federal Rule 16(c) or States are county by county
-stipulations regarding the handling of evidence
-Rule 16(c)(9) authorizes the presiding judge to encourage settlement negotiations
File Organization
-always file properly
Amending the Pleadings
-Rule 15 once a case has been placed on the trial calendar, you can only amend once with permission of the court or with written consent of the opposing party
Motions at the Beginning of Trial
motion in limeine
-one of the first motions filed before or at the beginning of the trial, frequently used to prevent opposing counsel from introducing certain evidence at trial
-"at the threshold"
-can use to attempt to exclude an opponent's expert witness or an expert opinion
The Trial Notebook
*most important item*
-critically important to the lawyer, very individual to each attorney, need to find out how they like it
-a binder that contains, in complete or summary form everything necessary to prosecute or defend a case
Bruce's trial notebook
-Opening statement
-Closing arguments
-Outline of the direct and cross of every witness and exhibit
-documents you tend to introduce through them
1. parties and attorneys
-all involved in the lawsuit
-contract information
2. pleadings, motions, discovery responses
-separate notebooks for each one
-keep all these items separate from the real trial notebook
-motions you intend to break not discovery motions
3. witnesses
-list of all witnesses
-contact information
-summary of facts that each witnesses is expected to speak about
-outline of where we are going
-what will cross on others
4. expert witnesses
-list all witnesses
-curriculum vitae: list of expert's credentials including each educational, professional credentials, and summary of publications and research projects
5. document indexes *the most important one*
-index of all by each party that produced it
-need to be able to find documents immediately during trial
-find a system that works for you
-this is what makes top notch litigation paralegals
6. deposition summaries
-arrange by the 3 types
1. page line page 263-264
-these are great to have in the notebook
2. topical
3. chronological
7. chronologically
-what happened, when happened
-trial rarely follows this order, it goes for maximum impact
-order of how I want the witnesses, the documents to produce with them
8. cast of characters
-all key parties involved
9. legal research
-on point: a law or prior case that directly applies to the facts of the present case
-facts and legal principles
-not necessary in here
-these are also in summary judgment, trial brief, in the motions, jury instructions
10. trial exhibits
-exhibit list, party that produced it, witnesses, objections to, court's ruling, admitting, rejections
11. jury profiles and instructions
-ideal jury for the case
-jury instruction: directions given to the jury explaining the law that applies in the case and spelling out what must be proved and by whom, there are given just before the jury is sent out to deliberate and return a verdict
-instructed on the law on how they should apply it
12. trial outline
-chronological listing of the tasks that must be performed prior to trial
-voir dire examination: process by which the jurors are questioned to determine any bias they might have that would affect their ability to be fair and impartial in the case
Reasons it is used:
-1. just to test for bias (legitimate)
-2. establish report with the jury (not a legitimate function of voir dire)
-3. condition the jury to be favorable to our case (not a legitimate function of voir dire)
13. attorney notes
14. any "to do" list
Handling Exhibits
Mark for identification
-Asking to identify a document the name of "Exhibit 1"
-easier to follow
-not in evidence, might be objectionable, is hearsay, might be prejudicial, lack foundation
-can mark almost anything as an exhibit
-once it is marked at identified you must make an index of the documents so you can easily find it
# | Exhibit | P/D | Objection | Date | Admitted
---------------------------------------------------------------------------
1 | Contract | P | | 11/12 | X
2 | Bill from cash | D | X | 11/15 |
3 | Letter | D | | 11/15 | X
4 | Subcontract | P | | 11/12 | X
Motion to move into Evidence
1.make a motion to move it into evidence
-then the judge will ask for objections
-if none, the judge places it in evidence
2. can happen exhibit by exhibit
-or ask all exhibits put in evidence then have the other side objection to ones they want to
-judge will look at objections and move everything at one time
Move into evidence
-making a document from exhibit to evidence
Preparation of Witnesses
-arranging for the sending of subpoenas to certain witnesses
-communication of the trial to the witnesses
-required to arrange and attend all witness preparation meetings
Subpoena of Witnesses
-witnesses may need them to get out of work
-Rule 45
-any person who is over 18 can serve
-valid for dates reflected and for remainder of the trial unless they are dismissed
-may challenge the subpoena on the basis that is unreasonable, oppressive, insufficient through a motion to quash, modify, vacate
-return of service on the subpoena must be completed and filed with the court for the subpoena to be considered valid
Difference of the Complaint and Summons
doesn't have to be left with a person of suitable age and discretion who lives there, usual abode
1. suitable age/discretion
2. lives there
3. usual abode
Why? What about Due Process?
-Witnesses are not required and are not gaining or losing anything from the lawsuit
-there is due process just limited
Federal Rules are different than State Rules
-you must serve it to someone
-must be personally served
-the clerk is responsible for issuing subpoenas
-in State the attorney issues them
Communicating with Witnesses
-remind them to review their deposition
-designated contact person with the law firm
Witness Preparation Meeting
-arrange a meeting with the attorney and witness
-review the deposition
-go over the deposition with the witness
-update them on the trial, especially if it bears on their testimony
-correlate the necessary trial exhibits with that outline
-conduct mock question sessions so that the witnesses will know exactly what questions will be asked during direct examination
-their choices are to either attend all trial, be on 1 hour notice, or agree in lieu of a repeat subpoena
Two key aspects of witness's testimony
1. scared to death, terrified
Biggest fears of Most people
1. Public Speaking
2. Snakes
3. Death
2. Persuasive Speaking
-nonverbal cues (body) 55%
-voice inflection 38%
-language (word choice) 7%
-do not have to subpoena a friendly witness to trial
Why? CR 43(f) Adverse Party as a Witness
1. Managing Agent (Corporations)
-solely by notice 10 business days before trial
Saturday, February 20, 2010
Discovery Assignment Notes
This is a collection notes that Bruce mentioned about the project throughout the past few lectures. Hope it helps make this assignment a little easier.
-Sarah
----------------------------------------------------------------------
Discovery Project
Due Feb 25th
1. Interrogatories
Draft a set of 25 initial interrogatories that test the support for key allegations or affirmative defenses
-Need to be concise and relevant
-Make each interrogatory questions count-Make questions about people, documents, prior issues, etc.
-No need for biographical background
-Remember to add 2 or 3 questions with contentions
-"Since you contend, (insert something from their Pleadings to use), was there ..."
-"If, so, please state all facts upon which you base your contentions."
-The answers will always be yes since this information came from the pleading
Form:
-DO NOT DO IT LIKE THE BOOK!
-just like pleadings heading says "Plaintiff Name First set of Interrogatories" instead of Answer of Complaint
-Definitions and Instructions are Optional
2. Memo on Depositions
Draft a memo about parties/witnesses should be deposed
-Need to state why, what information they might possess, and why this is relevant to your theories
-Outline the areas your attorney should focus on
-Not just damages and obvious questions
-Just key sample questions and topics
-3-6 people that you want deposed
Form:
-Memo 1-3 paragraphs to summarize the case
-1/2 page on each person being deposed
3. Request to Produce
Obtain documents which you feel help establish the case
Form:
-Checklist on page 335 is good
-Set up like a pleading
-Heading is not in the middle of the page!
-Example on page 329
4. Request for Admission
Directed to areas of the case where facts can be established and eliminated
-Look for 6-10 issues that you need to learn
-Don't ask simple things, use ones that strengthen your defense
-What do you need to prove about your case?
-Admit documents that are real (deed, board of health ratings, licenses)
-Never ask a request to admit on an opinion
-Also, make up anything you want, also applies to laws
Form:
-page 355, not like page 354
-Set up like a pleading
-Identify parties, only one per RFA
Sidenote:
Interrogatories and the Request to Produce can be combined into one. If the answer could be a document, make it a request to produce.
The Request for Admission must be freestanding.
Bruce generally does all the documents separately but there are no real advantages. You can do either way for the assignment.
-Sarah
----------------------------------------------------------------------
Discovery Project
Due Feb 25th
1. Interrogatories
Draft a set of 25 initial interrogatories that test the support for key allegations or affirmative defenses
-Need to be concise and relevant
-Make each interrogatory questions count-Make questions about people, documents, prior issues, etc.
-No need for biographical background
-Remember to add 2 or 3 questions with contentions
-"Since you contend, (insert something from their Pleadings to use), was there ..."
-"If, so, please state all facts upon which you base your contentions."
-The answers will always be yes since this information came from the pleading
Form:
-DO NOT DO IT LIKE THE BOOK!
-just like pleadings heading says "Plaintiff Name First set of Interrogatories" instead of Answer of Complaint
-Definitions and Instructions are Optional
2. Memo on Depositions
Draft a memo about parties/witnesses should be deposed
-Need to state why, what information they might possess, and why this is relevant to your theories
-Outline the areas your attorney should focus on
-Not just damages and obvious questions
-Just key sample questions and topics
-3-6 people that you want deposed
Form:
-Memo 1-3 paragraphs to summarize the case
-1/2 page on each person being deposed
3. Request to Produce
Obtain documents which you feel help establish the case
Form:
-Checklist on page 335 is good
-Set up like a pleading
-Heading is not in the middle of the page!
-Example on page 329
4. Request for Admission
Directed to areas of the case where facts can be established and eliminated
-Look for 6-10 issues that you need to learn
-Don't ask simple things, use ones that strengthen your defense
-What do you need to prove about your case?
-Admit documents that are real (deed, board of health ratings, licenses)
-Never ask a request to admit on an opinion
-Also, make up anything you want, also applies to laws
Form:
-page 355, not like page 354
-Set up like a pleading
-Identify parties, only one per RFA
Sidenote:
Interrogatories and the Request to Produce can be combined into one. If the answer could be a document, make it a request to produce.
The Request for Admission must be freestanding.
Bruce generally does all the documents separately but there are no real advantages. You can do either way for the assignment.
Friday, February 19, 2010
February 18th Notes
Litigation Basics
February 18, 2010
NEWS
3 Handouts on Mediation
-his example has great adjectives to use
Mediation Project Due Mar 3rd
-do not put a Law section in your Mediation Project
-no research for the project, this is about writing
-be passionate for your cause
Discovery Project Due Feb 25th
-for the memo 1-3 paragraphs to summarize the case
-focus on the details and ideas the lawyer might have missed
-1/2 page on each person you will depose
---------------------------------------------------------------------------
Chapter 14 page 375
-identify with your client, never distance yourself from them
-they are not just plaintiffs
Law Section
-usually not required since lawyers know the law (tort law)
-they also know their arguments too, you don't need suggestions
-may lead to straw man arguments, tearing down arguments that don't exist
-when you add them, it's focused on details of the case
Client's Personal History
-family information, education, employment, religion, professional organizations
-include hobbies and sports
Injuries to the Plaintiff
-example: burn injury saying 1/3 of the body is not as bad as saying 30% of his body
-do not use language like minor, cuts
-talk about fracture, not just that it's broken, add type and treatment
-organization from major injuries to minor
-dental problems are not minor
-plastic surgery is not minor
-write the brief well and detailed since the client will read and evaluate it
-capture their aspect of the story
-plaintiff: are they ruined, dead?
-defense: are they over the top, drama?
Expenses
-explain the details of the treatments and why they cost so much
-example: the severity of burn treatment, it is not a simple treatment
Damages
-make sure it reflects adequately on the injuries, wage losses
-you don't need to do the math
-do not threaten to go to trial, just do it
-a deadline might be nice but you can just file the lawsuit
-make sure there is humanity involved in this, it is about a client
-how their life was before, during and after this incident
-relationships, hobbies, enjoyment of life
Settlement Brochures
-summary of facts designed to get the other side to settle a case
-adding photos, interviews, news articles
-very persuasive
-much more than the other types
-more complete and intimidating
-not as expensive anymore
-thanks to the programs and photos online
-bringing charts, demonstrations, graphs
-showing them you are "ready for war" can make settling easier
-also means you are ready for trial and prepared when they won't settle
-videos, "a day in the life of our client"
-choosing a good way to display your case and make the defendant understand the severity of the case
-do not save it all for trial
-damages demand must be higher than what you think you will get
-start high and work down in mediation
-explain this fact to clients, you are not getting millions, it is a starting point
Statement of Facts
-settlement brochure begins with this
-written from the perspective of the defendant's liability
-includes witness statements, medical reports, newspaper articles and photographs
Settlement Conference
-a meeting of the parties to discuss settlement of the case
-rule 16 or pretrial conference
Settlement Agreements
-contract between two parties to settle a case, involves voluntary, mutual assent of the parties and the give-take element of consideration
-must be legal and must be made by parties with the capacity to contract
-usually not seen
-only for complicated case
-might want confidentiality for clients
-do we need annuity
-does one of the parties need to do something specifically in a timeline
-good for ongoing duties or agreements
Voluntary mutual assent
-attorney can not agree to a settlement if the client does not want to
-it is the client's case, you are the mouthpiece for him
-as an attorney you can withdraw from the case if you don't agree
-might not be able to file a lien for your fees, might not get paid
-very important to have a close client relationship
-do not threaten your client to take anything
Consideration
-a settlement is a contract
-the consideration is that client will not sue in exchange for money/specific damages
-it is legal consideration not economic
Capacity and Legality
-client is not insane, etc.
High-Low Agreements
-parties agree that the outcome of the case will be no less than X dollars and no more than Y dollars
Loan Receipt
-Mary Carter agreements
-side deals where there are lots of defendants and one defendant play against the other defendants with money given to the plaintiff
-are illegal in a lot of states, if not must be disclosed
-a contract between a claimant and settling tortfeasor by which they agree that one of them will prosecute the claim against another tortfeasor
Releases
-releases the client, giving up the claim for a check
TYPES LITIGATED NOT LITIGATED
Release NO YES
Check YES YES
Hold Harmless YES YES (usually an insurance issue)
Dismissal YES NO
Release: General or Global
-ends everything in all aspects
Partial Release:
-some defendants or some cause of action
-some things can not be released
-can go after the other defendants
-few defendants will be willing to give money for removal of some actions
-example: property damage from car accident
-first they fix the car (sign a release for the car)
-be careful in signing the release since it may be general release
-if not you can not pursue personal injury
-make sure it is partial
-under-insured policy for $100,000
-case for $75,000
-defendant only has $25,000 insurance
-take the first from defendant then claim the other $50,000 from your insurance
-you sign a release for the defendant, must be a partial release
-insurance has a subrogation clause, meaning they can go after the defendant
-need to sign a partial release so they can pursue the defendant and pay you
-you need to only release the defendant, not all defendants known and unknown
Mutual Releases
-everyone released
Dismissal
-dismiss the pleading
-presumed to be without prejudice
- to protect the client make sure to add with prejudice
-otherwise they can bring the lawsuit again without prejudice
WA CR 41
-plaintiff can dismiss at any time before resting
-have to watch how long you rest before trial
-counterclaim: you may not be able to dismiss you claim
-the court can involuntarily dismiss usually over a year
CR41(e) Notice of Settlement: the court needs to know promptly
-burden on plaintiff to tell court
4 ways to dismiss a complaint
1. Stipulated
2. Voluntary Dismissal
3. Court Dismissal
4. Motion to Dismiss CR12(b)
Federal CR41
-notice of dismissal before an answer or a summary judgment
-happens quickly
Consent Decrees
-confession of judgment
-example: owe money and then sued
-agree to give some money now and pay on a schedule later
-file another lawsuit
-agree to this again and defaults keep happening
-have them sign a consent decree
-pay and i tear it up
-otherwise you default, it is filed with the court and sent to collections
-government agencies do this a lot
-to use so you don't have to keep suing this person
-settlement proceeds statement must be prepared
-RPC 1.5(c)(3) "shall provide..."
Alternative Dispute Resolution
-have replaced settlement conferences
-almost every case goes through some form of this before trial
-mandatory arbitration
-all cases under $50,000 must be arbitrated as per the statute 7.06
-judges prefer this since resolution might be found
-many lack objectivity and this can help
-they can not make you to agree to binding ADR
-always non-binding (one exception)
-Why? Constitutional Rights Amendment 7: Right to a Jury trial
-the exception: you can agree to give up your 7th Amendment rights
-binding arbitration often found in contracts
-cheaper, faster, and more certain
Court-Related ADR
Early Neutral Evaluation
-nonbinding, rarely see this, too early no discovery
Mediation
-very common
-shuttle diplomacy
-trying to reach agreements between a neutral party
-mediator can be anyone the parties agree on, does not have to be a lawyer
-usually paid by the hour
Non-binding Arbitration
-in the statute 7.06
-informal but has witness, documents and speak about case
-the arbitrator listens and awards what he finds
-either party can reject the award and go to court, it is non-binding
-can denovo it
Summary Jury Trial
-mini trial, but very expensive
-usually only in huge cases
Summary Bench Trial
-very expensive
Private ADR
Binding Arbitration
-does not involve the Court Rules
-American Arbitration Society governs
-entitled to discovery: not as much
-usually in contracts
Negotiation
Mediation
-many organizations that provide these services
-WAMS, JAMS, JDR
Arbitration
-groups that have arbitration exist too
-need to know what your case is really about to find a good arbitrator
high-low arbitration
-agree that no matter what the outcome is, it is between two points
baseball arbitration
-outcome is either this number or this number
-parties must agree to those numbers
-forces more realistic numbers
night baseball arbitration
-high or low closest to what the numbers actually are
med-arb
-mediate it first, then arbitration occurs
-one person does all
-does not seem to fit both roles, very different roles
mini-trial
-only in huge cases
private judging
-long year to trial, lots of retired judges
-pick own judge and make trial
-make own schedule
-very popular until it was popularized and media blew it up
-usually only for wealthy and elite
Chapter 14 Review Questions
1. What is a settlement?
2. What are some of the preliminary decisions surrounding settlements?
3. What areas must be investigated before a settlement offer is made?
4. What is the difference between a settlement summary and a settlement letter?
5. How does a settlement brochure differ from a settlement summary and a settlement letter?
6. What is a settlement agreement?
7. What is a release? What types of releases are available?
8. What are the advantages of a stipulated dismissal?
9. When is a voluntary dismissal on notice allowed?
10. Under what circumstances can a court order an involuntary dismissal?
11. How does a consent decree differ from a stipulated dismissal?
12. What is a settlement proceeds statement?
13. Describe the various methods of court related ADR.
14. Describe the various methods of private or voluntary ADR.
State Rules
Mandatory Arbitration Rules
MAR page 439 in 2010
-5 pages Read All of these and mark them
Important Rules to Know
4.2: limited discovery after arbitration
5.1: 21-63 days the trial must be heard once in arbitration
5.2: prehearing statement
5.3(c): arbitration more informal than trial
5.3(d): presumed admissible
-ER 904
6.2: 14 days to award
6.3: saying you can have your day in court, not binding
-done in 20 days
De Novo: from the beginning, either side can do this
-must be done in 20 days
7.1: can not be extend de novo
7.2: can not reference to arbitration award to the jury
-ER 408
7.3: risk of de novo, free to do it, but if you do and you do not improve your position at trial, you pay the other sides costs
KC Rules MAR
LMAR page 634 in 2010
2.1: suitable cases under $50K
2.3: list of arbitrators (5 names)
-strike 2 names
-say the ones you like
4.2: discovery
7.1: accelerated trial date included
-in arbitration trial in 60-120 days
-promotes arbitration
February 18, 2010
NEWS
3 Handouts on Mediation
-his example has great adjectives to use
Mediation Project Due Mar 3rd
-do not put a Law section in your Mediation Project
-no research for the project, this is about writing
-be passionate for your cause
Discovery Project Due Feb 25th
-for the memo 1-3 paragraphs to summarize the case
-focus on the details and ideas the lawyer might have missed
-1/2 page on each person you will depose
---------------------------------------------------------------------------
Chapter 14 page 375
-identify with your client, never distance yourself from them
-they are not just plaintiffs
Law Section
-usually not required since lawyers know the law (tort law)
-they also know their arguments too, you don't need suggestions
-may lead to straw man arguments, tearing down arguments that don't exist
-when you add them, it's focused on details of the case
Client's Personal History
-family information, education, employment, religion, professional organizations
-include hobbies and sports
Injuries to the Plaintiff
-example: burn injury saying 1/3 of the body is not as bad as saying 30% of his body
-do not use language like minor, cuts
-talk about fracture, not just that it's broken, add type and treatment
-organization from major injuries to minor
-dental problems are not minor
-plastic surgery is not minor
-write the brief well and detailed since the client will read and evaluate it
-capture their aspect of the story
-plaintiff: are they ruined, dead?
-defense: are they over the top, drama?
Expenses
-explain the details of the treatments and why they cost so much
-example: the severity of burn treatment, it is not a simple treatment
Damages
-make sure it reflects adequately on the injuries, wage losses
-you don't need to do the math
-do not threaten to go to trial, just do it
-a deadline might be nice but you can just file the lawsuit
-make sure there is humanity involved in this, it is about a client
-how their life was before, during and after this incident
-relationships, hobbies, enjoyment of life
Settlement Brochures
-summary of facts designed to get the other side to settle a case
-adding photos, interviews, news articles
-very persuasive
-much more than the other types
-more complete and intimidating
-not as expensive anymore
-thanks to the programs and photos online
-bringing charts, demonstrations, graphs
-showing them you are "ready for war" can make settling easier
-also means you are ready for trial and prepared when they won't settle
-videos, "a day in the life of our client"
-choosing a good way to display your case and make the defendant understand the severity of the case
-do not save it all for trial
-damages demand must be higher than what you think you will get
-start high and work down in mediation
-explain this fact to clients, you are not getting millions, it is a starting point
Statement of Facts
-settlement brochure begins with this
-written from the perspective of the defendant's liability
-includes witness statements, medical reports, newspaper articles and photographs
Settlement Conference
-a meeting of the parties to discuss settlement of the case
-rule 16 or pretrial conference
Settlement Agreements
-contract between two parties to settle a case, involves voluntary, mutual assent of the parties and the give-take element of consideration
-must be legal and must be made by parties with the capacity to contract
-usually not seen
-only for complicated case
-might want confidentiality for clients
-do we need annuity
-does one of the parties need to do something specifically in a timeline
-good for ongoing duties or agreements
Voluntary mutual assent
-attorney can not agree to a settlement if the client does not want to
-it is the client's case, you are the mouthpiece for him
-as an attorney you can withdraw from the case if you don't agree
-might not be able to file a lien for your fees, might not get paid
-very important to have a close client relationship
-do not threaten your client to take anything
Consideration
-a settlement is a contract
-the consideration is that client will not sue in exchange for money/specific damages
-it is legal consideration not economic
Capacity and Legality
-client is not insane, etc.
High-Low Agreements
-parties agree that the outcome of the case will be no less than X dollars and no more than Y dollars
Loan Receipt
-Mary Carter agreements
-side deals where there are lots of defendants and one defendant play against the other defendants with money given to the plaintiff
-are illegal in a lot of states, if not must be disclosed
-a contract between a claimant and settling tortfeasor by which they agree that one of them will prosecute the claim against another tortfeasor
Releases
-releases the client, giving up the claim for a check
TYPES LITIGATED NOT LITIGATED
Release NO YES
Check YES YES
Hold Harmless YES YES (usually an insurance issue)
Dismissal YES NO
Release: General or Global
-ends everything in all aspects
Partial Release:
-some defendants or some cause of action
-some things can not be released
-can go after the other defendants
-few defendants will be willing to give money for removal of some actions
-example: property damage from car accident
-first they fix the car (sign a release for the car)
-be careful in signing the release since it may be general release
-if not you can not pursue personal injury
-make sure it is partial
-under-insured policy for $100,000
-case for $75,000
-defendant only has $25,000 insurance
-take the first from defendant then claim the other $50,000 from your insurance
-you sign a release for the defendant, must be a partial release
-insurance has a subrogation clause, meaning they can go after the defendant
-need to sign a partial release so they can pursue the defendant and pay you
-you need to only release the defendant, not all defendants known and unknown
Mutual Releases
-everyone released
Dismissal
-dismiss the pleading
-presumed to be without prejudice
- to protect the client make sure to add with prejudice
-otherwise they can bring the lawsuit again without prejudice
WA CR 41
-plaintiff can dismiss at any time before resting
-have to watch how long you rest before trial
-counterclaim: you may not be able to dismiss you claim
-the court can involuntarily dismiss usually over a year
CR41(e) Notice of Settlement: the court needs to know promptly
-burden on plaintiff to tell court
4 ways to dismiss a complaint
1. Stipulated
2. Voluntary Dismissal
3. Court Dismissal
4. Motion to Dismiss CR12(b)
Federal CR41
-notice of dismissal before an answer or a summary judgment
-happens quickly
Consent Decrees
-confession of judgment
-example: owe money and then sued
-agree to give some money now and pay on a schedule later
-file another lawsuit
-agree to this again and defaults keep happening
-have them sign a consent decree
-pay and i tear it up
-otherwise you default, it is filed with the court and sent to collections
-government agencies do this a lot
-to use so you don't have to keep suing this person
-settlement proceeds statement must be prepared
-RPC 1.5(c)(3) "shall provide..."
Alternative Dispute Resolution
-have replaced settlement conferences
-almost every case goes through some form of this before trial
-mandatory arbitration
-all cases under $50,000 must be arbitrated as per the statute 7.06
-judges prefer this since resolution might be found
-many lack objectivity and this can help
-they can not make you to agree to binding ADR
-always non-binding (one exception)
-Why? Constitutional Rights Amendment 7: Right to a Jury trial
-the exception: you can agree to give up your 7th Amendment rights
-binding arbitration often found in contracts
-cheaper, faster, and more certain
Court-Related ADR
Early Neutral Evaluation
-nonbinding, rarely see this, too early no discovery
Mediation
-very common
-shuttle diplomacy
-trying to reach agreements between a neutral party
-mediator can be anyone the parties agree on, does not have to be a lawyer
-usually paid by the hour
Non-binding Arbitration
-in the statute 7.06
-informal but has witness, documents and speak about case
-the arbitrator listens and awards what he finds
-either party can reject the award and go to court, it is non-binding
-can denovo it
Summary Jury Trial
-mini trial, but very expensive
-usually only in huge cases
Summary Bench Trial
-very expensive
Private ADR
Binding Arbitration
-does not involve the Court Rules
-American Arbitration Society governs
-entitled to discovery: not as much
-usually in contracts
Negotiation
Mediation
-many organizations that provide these services
-WAMS, JAMS, JDR
Arbitration
-groups that have arbitration exist too
-need to know what your case is really about to find a good arbitrator
high-low arbitration
-agree that no matter what the outcome is, it is between two points
baseball arbitration
-outcome is either this number or this number
-parties must agree to those numbers
-forces more realistic numbers
night baseball arbitration
-high or low closest to what the numbers actually are
med-arb
-mediate it first, then arbitration occurs
-one person does all
-does not seem to fit both roles, very different roles
mini-trial
-only in huge cases
private judging
-long year to trial, lots of retired judges
-pick own judge and make trial
-make own schedule
-very popular until it was popularized and media blew it up
-usually only for wealthy and elite
Chapter 14 Review Questions
1. What is a settlement?
2. What are some of the preliminary decisions surrounding settlements?
3. What areas must be investigated before a settlement offer is made?
4. What is the difference between a settlement summary and a settlement letter?
5. How does a settlement brochure differ from a settlement summary and a settlement letter?
6. What is a settlement agreement?
7. What is a release? What types of releases are available?
8. What are the advantages of a stipulated dismissal?
9. When is a voluntary dismissal on notice allowed?
10. Under what circumstances can a court order an involuntary dismissal?
11. How does a consent decree differ from a stipulated dismissal?
12. What is a settlement proceeds statement?
13. Describe the various methods of court related ADR.
14. Describe the various methods of private or voluntary ADR.
State Rules
Mandatory Arbitration Rules
MAR page 439 in 2010
-5 pages Read All of these and mark them
Important Rules to Know
4.2: limited discovery after arbitration
5.1: 21-63 days the trial must be heard once in arbitration
5.2: prehearing statement
5.3(c): arbitration more informal than trial
5.3(d): presumed admissible
-ER 904
6.2: 14 days to award
6.3: saying you can have your day in court, not binding
-done in 20 days
De Novo: from the beginning, either side can do this
-must be done in 20 days
7.1: can not be extend de novo
7.2: can not reference to arbitration award to the jury
-ER 408
7.3: risk of de novo, free to do it, but if you do and you do not improve your position at trial, you pay the other sides costs
KC Rules MAR
LMAR page 634 in 2010
2.1: suitable cases under $50K
2.3: list of arbitrators (5 names)
-strike 2 names
-say the ones you like
4.2: discovery
7.1: accelerated trial date included
-in arbitration trial in 60-120 days
-promotes arbitration
Thursday, February 18, 2010
February 17th Notes
Litigation Basics
February 17, 2010
NEWS
-Bring Local Rules Tomorrow
Memo part of discovery project
-3-6 people that need to be deposed
-why we want to depose them
-key aspects of testimony
-sample questions
-look at the subtleties
-ask other questions, not just damages and obvious questions
-examples: relatives, habits
-Marvin: what did he know about that contract? On $2,500 for 400? Religious events before?
Next Assignment Mediation Brief
-based on one of the three scenarios
-instead of another handout
-it is due close to the final (does not take as much time)
--------------------------------------------------------------------------
Chapter 13 page 358
-should not use request for admission for opinions
-if you must your opinions find facts to base it on
-example: awards at work, raises and basis for raises
-Why? People all have a different view.
-each request must have only one idea
-once it is compound, it's objectionable
-Responses
-Admit, Deny, Object
-After reasonable investigation, responding party lacks the information to either admit or deny and on that basis deny.
-if there is a denial, but it does prove to be true later. the denial is improper
-the remedy for this is that if the other side proves this, they can stick you with the cost of proving the truth to the matter CR 37(c)
-however it is difficult to isolate the costs
Objections to the Request for Admission
-privileges
-overbroad
-compound
Chapter 13 Review Questions
1. What is a request for admission?
2. On whom may a request for admission be served?
3. What is the principal purpose for filling a request for admission?
4. What advantages does the request for admission have over other discovery tools?
5. What preliminary steps should be taken before drafting a request for admission?
6. List the parts of a request for admission.
7. Explain the content of each of the parts of a request for admission.
8. List the possible responses to a request for admission.
9. Point out the danger of not responding to a request for admission.
10. List the possible objections to a request for admission.
Chapter 14 page 367
Settlements, Dismissals and Alternative Dispute Resolution
Settlement
-to come to an agreement about a lawsuit
-resolves a civil dispute
-does not "terminate" the case
Decisions regarding Settlement
-Time
-Money
-Jury's can be unpredictable
-stressful for everyone
-more involved, more expensive
-multiple depositions
-examination costs
-court's decisions regarding similar cases
-motivation of the other party to settle
Preliminary Investigative Work
-cases settle because they are worked up properly
-takes time and money for discovery
-starts from the day you take that case to trial
-85% workout without litigation
-Looks weak ER 408 inadmissible
-human nature to not to want to pay
Client's Personal History
-influences outcome
-family, employment, gender, hobbies, religion, age, race, marital, children
-effects damages and way they are perceived
-need to look at what the client is missing due to the lawsuit
Medical Diaries
-self-serving, always kept out of trial
-they are hearsay, but part of discovery
-good because it gives the client something to do
-easier to work with them
collateral area
-cases can vary from one another based on who the client is
-other variables in the case
-they might work in your favor or might not
-intangibles in the case
-effect outcome but are difficult to quantify
Examples:
-strength of the client as a witness (how the client presents)
-the jury pool (conservative, liberal, urban, country)
-what kind of judge
-strength of counsel (experienced or not?)
-are the facts appealing or interesting
-defendant are they appealing or not
Types of Settlement Offers
Settlement Summaries and Letters
-called a settlement demand, you do not make a settlement offer
-the plaintiff demands, the defendant offers
Settlement summary
-a summary of all the essential information outlining the benefits of settling the case at an early stage in litigation
-summaries are great periodically
-lawyers change and cases change hands
Settlement letters
-you have a good case, that is ready to go to trial
-you are not going to convince anyone
-need to go to trial occasionally since it keeps you sharp and let's others know you are willing to go to trial
-every client deserves your best efforts
-you should be able to make summaries, letters and brochures for all of them
-if you think a case is small, send it to a firm that handles smaller cases
-where the costs outweigh the suit
-where settlement really is the best option
-"minor" the word never shows up in a demand package
-never use with your client
-make sure to add support details
-never negotiate against yourself
Tips on Writing Settlement Letter
-plaintiff background: do not give out useless background information
-impersonal to talk about your client as a plaintiff
-beware of terms like "good enough"
-does not need conclusions, need arguments
-persuade first then conclude
-give details and treat them with the appropriate severity
-do not attach copies of deposition, they already have a copy
-can not produce documents you already have
-watch wording, "stated" poor choice, makes you look like you don't believe him
-argue with an aggressive, non-passive voice
February 17, 2010
NEWS
-Bring Local Rules Tomorrow
Memo part of discovery project
-3-6 people that need to be deposed
-why we want to depose them
-key aspects of testimony
-sample questions
-look at the subtleties
-ask other questions, not just damages and obvious questions
-examples: relatives, habits
-Marvin: what did he know about that contract? On $2,500 for 400? Religious events before?
Next Assignment Mediation Brief
-based on one of the three scenarios
-instead of another handout
-it is due close to the final (does not take as much time)
--------------------------------------------------------------------------
Chapter 13 page 358
-should not use request for admission for opinions
-if you must your opinions find facts to base it on
-example: awards at work, raises and basis for raises
-Why? People all have a different view.
-each request must have only one idea
-once it is compound, it's objectionable
-Responses
-Admit, Deny, Object
-After reasonable investigation, responding party lacks the information to either admit or deny and on that basis deny.
-if there is a denial, but it does prove to be true later. the denial is improper
-the remedy for this is that if the other side proves this, they can stick you with the cost of proving the truth to the matter CR 37(c)
-however it is difficult to isolate the costs
Objections to the Request for Admission
-privileges
-overbroad
-compound
Chapter 13 Review Questions
1. What is a request for admission?
2. On whom may a request for admission be served?
3. What is the principal purpose for filling a request for admission?
4. What advantages does the request for admission have over other discovery tools?
5. What preliminary steps should be taken before drafting a request for admission?
6. List the parts of a request for admission.
7. Explain the content of each of the parts of a request for admission.
8. List the possible responses to a request for admission.
9. Point out the danger of not responding to a request for admission.
10. List the possible objections to a request for admission.
Chapter 14 page 367
Settlements, Dismissals and Alternative Dispute Resolution
Settlement
-to come to an agreement about a lawsuit
-resolves a civil dispute
-does not "terminate" the case
Decisions regarding Settlement
-Time
-Money
-Jury's can be unpredictable
-stressful for everyone
-more involved, more expensive
-multiple depositions
-examination costs
-court's decisions regarding similar cases
-motivation of the other party to settle
Preliminary Investigative Work
-cases settle because they are worked up properly
-takes time and money for discovery
-starts from the day you take that case to trial
-85% workout without litigation
-Looks weak ER 408 inadmissible
-human nature to not to want to pay
Client's Personal History
-influences outcome
-family, employment, gender, hobbies, religion, age, race, marital, children
-effects damages and way they are perceived
-need to look at what the client is missing due to the lawsuit
Medical Diaries
-self-serving, always kept out of trial
-they are hearsay, but part of discovery
-good because it gives the client something to do
-easier to work with them
collateral area
-cases can vary from one another based on who the client is
-other variables in the case
-they might work in your favor or might not
-intangibles in the case
-effect outcome but are difficult to quantify
Examples:
-strength of the client as a witness (how the client presents)
-the jury pool (conservative, liberal, urban, country)
-what kind of judge
-strength of counsel (experienced or not?)
-are the facts appealing or interesting
-defendant are they appealing or not
Types of Settlement Offers
Settlement Summaries and Letters
-called a settlement demand, you do not make a settlement offer
-the plaintiff demands, the defendant offers
Settlement summary
-a summary of all the essential information outlining the benefits of settling the case at an early stage in litigation
-summaries are great periodically
-lawyers change and cases change hands
Settlement letters
-you have a good case, that is ready to go to trial
-you are not going to convince anyone
-need to go to trial occasionally since it keeps you sharp and let's others know you are willing to go to trial
-every client deserves your best efforts
-you should be able to make summaries, letters and brochures for all of them
-if you think a case is small, send it to a firm that handles smaller cases
-where the costs outweigh the suit
-where settlement really is the best option
-"minor" the word never shows up in a demand package
-never use with your client
-make sure to add support details
-never negotiate against yourself
Tips on Writing Settlement Letter
-plaintiff background: do not give out useless background information
-impersonal to talk about your client as a plaintiff
-beware of terms like "good enough"
-does not need conclusions, need arguments
-persuade first then conclude
-give details and treat them with the appropriate severity
-do not attach copies of deposition, they already have a copy
-can not produce documents you already have
-watch wording, "stated" poor choice, makes you look like you don't believe him
-argue with an aggressive, non-passive voice
Wednesday, February 17, 2010
February 16th Notes
Litigation Basics
February 16, 2010
NEWS
-Discovery Project Due Feb 25th
Midterm Results: Average 51.7
Need Local Rules this week
---------------------------------------------------
Chapter 12 page 333
Document Organization
Document Production
-certain areas of the law have a lot of production, some do not
-sending documents early to the client is a good idea
-helps you get to know the client by doing them together
-schedule as soon as possible
-organization is a key factor
checklist on page 335 is good for huge production
Copying the Documents
-rarely do you need the original, the client usually does
-try to never release an original
-opposing side wants the documents that support the your client's side (different from book)
Numbering the Documents
-pull all the docs
-take out the privileged
-Bates stamped
-Bates numbering system
-document production log
3 stacks
1. responsive documents
-ones to turn over
2. privileged documents
-may be responsive but not to turn over
3. nonresponsive documents
-this is from the client, no reason to have these
-DO NOT write on originals
-make copies if you need them
Reviewing, Labeling, and Filing Documents before Removal
Organizing and Indexing the Documents After Production
-need to be prepared to find them at a moment's notice
Inspection of Property
-demand for inspections
-need to make reasonable accommodations for owner
-you can get court orders to get onto property that is not a party
-Court Rule 45 subpoena the person who is not a party
-make it much easier to get information you need
Chapter 12 Review Questions
1. Name three alternative methods for obtaining documents in addition to mutual disclosure and serving a request for documents?
2. What is a request for documents?
3. Explain the factors to be considered in deciding whether to serve the other party with a request for production of documents.
4. What are the three basic approaches to document production?
5. What are three categories of discoverable ESI?
6. Distinguish among the attorney client privilege, the work product privilege, and the common interest privilege.
7. Distinguish between the medical privilege and the confessor penitent privilege.
8. When should a confidentiality agreement or a protective order be sought?
9. What objections can be raised to a request for production of documents?
10. What procedures can be used to obtain an inspection of property?
11. What protocol has the court established for an onsite visit to obtain ESI?
Chapter 13
Request for Admissions
-can not use this until you know the case
-do technically this is not discovery
-focus on things you have to prove
-do not waste on things that people do not contend
-(for project look for 6-10 issues that you need to learn)
-don't ask simple things, use ones that strengthen your defense
-what do you need to prove about your case
Tips to get there
-admit documents are real (deed, board of health ratings, licenses)
-duces tecum to bring documents
the more you admit the less I have to prove
Used to find:
1. Authenticating the Genuineness of Documents
2. Authenticating Certain Facts and Opinions
3. Authenticating the Application of the Law to Facts
-law to shut down service, apply the law, cite sources
-when you admit the genuineness of a document, you do not admit
1. that it is admissible (still probably hearsay)
2. not an admission that the document is relevant
3. not an admission of truthfulness
-think about the questions you are asking and how they might answer
-look at phrasing
-never ask a request to admit on an opinion
-waste of time
-getting them to admit facts that prove your opinion
-make sure you are not seeking opinions
Drafting the Request
-get official information to have them admit
deemed admitted
-if you miss the deadline for request to admit it is very important
-if you do not answer, in 30 days, everything is deemed admitted
-was causing issues, lawyers were adding strange admissions to win the case and motions to set aside were choking the courts
Preliminary steps in drafting
-things that would make your case great if they admit
-expensive research to prove
(for project: make up anything you want, also applies to laws)
-use a form
-page 355 not like 354
-set up like a pleading
-identify parties
(does not like section F)
-what is favorable
Big Problems
-asking for opinions
-compound request to admit
-1 per RTA
-for the project 10-12
each fact listed separately
February 16, 2010
NEWS
-Discovery Project Due Feb 25th
Midterm Results: Average 51.7
Need Local Rules this week
---------------------------------------------------
Chapter 12 page 333
Document Organization
Document Production
-certain areas of the law have a lot of production, some do not
-sending documents early to the client is a good idea
-helps you get to know the client by doing them together
-schedule as soon as possible
-organization is a key factor
checklist on page 335 is good for huge production
Copying the Documents
-rarely do you need the original, the client usually does
-try to never release an original
-opposing side wants the documents that support the your client's side (different from book)
Numbering the Documents
-pull all the docs
-take out the privileged
-Bates stamped
-Bates numbering system
-document production log
3 stacks
1. responsive documents
-ones to turn over
2. privileged documents
-may be responsive but not to turn over
3. nonresponsive documents
-this is from the client, no reason to have these
-DO NOT write on originals
-make copies if you need them
Reviewing, Labeling, and Filing Documents before Removal
Organizing and Indexing the Documents After Production
-need to be prepared to find them at a moment's notice
Inspection of Property
-demand for inspections
-need to make reasonable accommodations for owner
-you can get court orders to get onto property that is not a party
-Court Rule 45 subpoena the person who is not a party
-make it much easier to get information you need
Chapter 12 Review Questions
1. Name three alternative methods for obtaining documents in addition to mutual disclosure and serving a request for documents?
2. What is a request for documents?
3. Explain the factors to be considered in deciding whether to serve the other party with a request for production of documents.
4. What are the three basic approaches to document production?
5. What are three categories of discoverable ESI?
6. Distinguish among the attorney client privilege, the work product privilege, and the common interest privilege.
7. Distinguish between the medical privilege and the confessor penitent privilege.
8. When should a confidentiality agreement or a protective order be sought?
9. What objections can be raised to a request for production of documents?
10. What procedures can be used to obtain an inspection of property?
11. What protocol has the court established for an onsite visit to obtain ESI?
Chapter 13
Request for Admissions
-can not use this until you know the case
-do technically this is not discovery
-focus on things you have to prove
-do not waste on things that people do not contend
-(for project look for 6-10 issues that you need to learn)
-don't ask simple things, use ones that strengthen your defense
-what do you need to prove about your case
Tips to get there
-admit documents are real (deed, board of health ratings, licenses)
-duces tecum to bring documents
the more you admit the less I have to prove
Used to find:
1. Authenticating the Genuineness of Documents
2. Authenticating Certain Facts and Opinions
3. Authenticating the Application of the Law to Facts
-law to shut down service, apply the law, cite sources
-when you admit the genuineness of a document, you do not admit
1. that it is admissible (still probably hearsay)
2. not an admission that the document is relevant
3. not an admission of truthfulness
-think about the questions you are asking and how they might answer
-look at phrasing
-never ask a request to admit on an opinion
-waste of time
-getting them to admit facts that prove your opinion
-make sure you are not seeking opinions
Drafting the Request
-get official information to have them admit
deemed admitted
-if you miss the deadline for request to admit it is very important
-if you do not answer, in 30 days, everything is deemed admitted
-was causing issues, lawyers were adding strange admissions to win the case and motions to set aside were choking the courts
Preliminary steps in drafting
-things that would make your case great if they admit
-expensive research to prove
(for project: make up anything you want, also applies to laws)
-use a form
-page 355 not like 354
-set up like a pleading
-identify parties
(does not like section F)
-what is favorable
Big Problems
-asking for opinions
-compound request to admit
-1 per RTA
-for the project 10-12
each fact listed separately
Wednesday, February 10, 2010
February 10th Notes
Litigation Basics
February 10, 2010
NEWS
Job Opportunity
Elyse Conte (from "Homecoming")has opening at her firm for an assistant Cole, Lether, Leid, & Hall Insurance Defense Litigation
Info: econte@clwlh.com
MIDTERM TOMORROW
-------------------------------------------------
Chapter 12
Request for Documents
-a request that a party in a lawsuit asks for a document or physical evidence to the party making the request
Federal Rule 26(a)(1)(B)
-mutual disclosure of the following within 14 days of the initial conference a copy of documents, ESI, tangible things
-most of the documents are not known of at this point
-only required to give you documents that they know of that support the claims and defenses not yours
-do not rely on this rule to do the discovery for you
Federal Rule 30(b)(5)
-request for documents at the depositions
-disadvantages is that they may bring too many documents
-one or two documents is manageable
Ways to get documents in Discovery
1. get the party deposed to bring them with CR 30(b)(5)
-only a notice, does not have a subpoena so a non-party needs a subpoena
2. subpoena duces tecum CR 45
-changed so that just documents can be brought (also non-party)
-must subpoena them so they appear
3. interrogatories CR 33(c) (bring the documents contained in the information for the question)
Federal CR 33(d) or State CR 33(c)
-only party
4. request to produce CR 34
-only for party
-Remember only way to get information from a non-party is a deposition
-you can only notice a party, everyone else needs a subpoena
-CR 34 is different from the other discoveries
-30 days to respond to this request, just a statement on what you intend to produce, does not mean actual production
-does not tell you the time limit on when production must happen
-Request to produce documents must be "reasonable particular", so they know what documents are called for by the request
-you draft as broad as possible, they try to narrow it as must as possible
-any documents under their possession or under their control
-may have to retrieve from accounts, employees, etc.
-Should you do this early or late?
-want to do as soon as possible BUT sometimes it is better to delay until depositions and interrogatories have been done
Advantages for Early
-prepare for deposition
-looking at the strength of the case
-damages, how much it really is worth
-strategies of theories
-he personally prefers early
-you can send out another request to produce after the deposition (unlimited amount)
Advantages for Later
-depositions may produce new information
-strange information that can help your case
Cost of production
-too many categories can lead to too many documents
-you bare the cost of copying any documents, so remember that this cost comes from the client
-important to be efficient
Approaches to Document productions CR 34(b)
Two ways to put documents together for delivery
1. sort in the categories the other side has laid out
-usually takes more time and effort
-but this means the other side is evaluating the documents for your categories
2. sort in the normal way they are kept in business (alphabetical, chronological)
-great for learning more about the case, forces you to look at everything
The number of documents
Three Approaches
1. warehouse approach: everything you can get your hands on, bury them with paperwork
-can draw Fisons objections
-could be producing privileged information
-does not work, since many lawyers will read everything and you might get malpractice, bar complaint
2. broad based production: give them more documents about the case then necessary
-saves time and effort, since they might ask for them later
-not a good idea since it helps them, wait for the to ask for it
3. limited production: only the documents they asked for
-watch specific wording, they will give you exactly what you asked for
Protection of Documents
-remember your privileges, same ones from interrogatories
1. attorney/client
2. work product privilege
-compilations or assessments
3. common interest privilege
-multiple parties being sued, market-share liability (iuds, thalidomide, asbestos)
-not sure where they got the problem
-must hit every percentage of the industry (pay percentage of judgment)
4. medical and confessor privilege
5. overbroad and duplicative requests
1. scope (too many categories)
2. in time (too long a period of time)
-some other parties will provide better ways to redraft for what they are looking for
-can be tricky since they might be hiding a critical year or critical categories
6. inadmissible and irrelevant evidence
7. confidentiality agreements and protective orders
-review the documents you are producing
8. format objections to document requests
9. inadvertent production of documents
Drafting the Request
-review case
-create roadmap
-initial research
-take a look at forms first
(set up like a pleading)
***heading is not in the middle of the page!
Title and Intro Paragraph
Definitions
Instructions
Documents Requested
Documents Requested Example page 329
-"including, but not limited to, (3 or 4 examples of the term)"
-"for the period of (year), including but not limited to (3 or 4 examples of the term)"
-always good to give them examples so they understand what they are looking for
-Example: repairs, maintenance, improvement during the last 3 years but not limited to lighting, wiring, carpeting
-if you need to explain it, you need to re-draft it (unless it is terminology)
Discovery is not filed with the state courts in WA
-too much paperwork
-whether you are sending or arriving calendar these dates!
-in 30 days you will have a response
-if not, check on it
-if you produce documents, producing them waives any objections to producing them
-can't object after they were handed over
-you could still argue at trial about it, all documents are hearsay and you can object at trial
About Discovery Assignment
1. Interrogatories
2. Request to produce
-can be combined into one
-if the answer could be a document, make it a request to produce
3. Request to Admit
-is freestanding, can not be combined
#1. Please describe in detail how and when you learned of the UW Paralegal Program.
#2. Please describe all the projects you completed in litigation
RTP #1 Please produce all documents in the forgoing interrogatory
#3. Please identify the dates of all exams in fundamentals, lit and complex litigation
RTP #2 Please produce all documents in the forgoing interrogatory
-Bruce generally does it separately
-can identify in the Interrogatories but likes a separate sheet
-no real advantages, can do either way for the assignment
MIDTERM REVIEW
Injunctions
-14 days it dissolves
-14 calendar days, so holidays and weekends count
-less than 7 days you don't count it
-means it is calendar days
-if the court is closed, it is a holiday
-if it lands on a weekend or holiday, it moves to the next business day
CR 9 Notice pleading state
-no details
-very limited
-if it is a fact pleading state you need to show the facts of the case
Interpleading
-a party can leave a lawsuit
-airplane accident, insurance gives money to plaintiffs to split
-Escrow companies: earnest money down
find this rule, what does it say
-can you find it and use it
-legal authority for complete diversity
Fisons: take away why is it significant?
-preFisons: only get in trouble for willful holding of documents
-Fisons: broadened that to include half-truths, evasiveness
-tightened discovery for better truth and compliance
forum non conveins
-move a court from a proper venue and jurisdiction to another for conveniences of others
February 10, 2010
NEWS
Job Opportunity
Elyse Conte (from "Homecoming")has opening at her firm for an assistant Cole, Lether, Leid, & Hall Insurance Defense Litigation
Info: econte@clwlh.com
MIDTERM TOMORROW
-------------------------------------------------
Chapter 12
Request for Documents
-a request that a party in a lawsuit asks for a document or physical evidence to the party making the request
Federal Rule 26(a)(1)(B)
-mutual disclosure of the following within 14 days of the initial conference a copy of documents, ESI, tangible things
-most of the documents are not known of at this point
-only required to give you documents that they know of that support the claims and defenses not yours
-do not rely on this rule to do the discovery for you
Federal Rule 30(b)(5)
-request for documents at the depositions
-disadvantages is that they may bring too many documents
-one or two documents is manageable
Ways to get documents in Discovery
1. get the party deposed to bring them with CR 30(b)(5)
-only a notice, does not have a subpoena so a non-party needs a subpoena
2. subpoena duces tecum CR 45
-changed so that just documents can be brought (also non-party)
-must subpoena them so they appear
3. interrogatories CR 33(c) (bring the documents contained in the information for the question)
Federal CR 33(d) or State CR 33(c)
-only party
4. request to produce CR 34
-only for party
-Remember only way to get information from a non-party is a deposition
-you can only notice a party, everyone else needs a subpoena
-CR 34 is different from the other discoveries
-30 days to respond to this request, just a statement on what you intend to produce, does not mean actual production
-does not tell you the time limit on when production must happen
-Request to produce documents must be "reasonable particular", so they know what documents are called for by the request
-you draft as broad as possible, they try to narrow it as must as possible
-any documents under their possession or under their control
-may have to retrieve from accounts, employees, etc.
-Should you do this early or late?
-want to do as soon as possible BUT sometimes it is better to delay until depositions and interrogatories have been done
Advantages for Early
-prepare for deposition
-looking at the strength of the case
-damages, how much it really is worth
-strategies of theories
-he personally prefers early
-you can send out another request to produce after the deposition (unlimited amount)
Advantages for Later
-depositions may produce new information
-strange information that can help your case
Cost of production
-too many categories can lead to too many documents
-you bare the cost of copying any documents, so remember that this cost comes from the client
-important to be efficient
Approaches to Document productions CR 34(b)
Two ways to put documents together for delivery
1. sort in the categories the other side has laid out
-usually takes more time and effort
-but this means the other side is evaluating the documents for your categories
2. sort in the normal way they are kept in business (alphabetical, chronological)
-great for learning more about the case, forces you to look at everything
The number of documents
Three Approaches
1. warehouse approach: everything you can get your hands on, bury them with paperwork
-can draw Fisons objections
-could be producing privileged information
-does not work, since many lawyers will read everything and you might get malpractice, bar complaint
2. broad based production: give them more documents about the case then necessary
-saves time and effort, since they might ask for them later
-not a good idea since it helps them, wait for the to ask for it
3. limited production: only the documents they asked for
-watch specific wording, they will give you exactly what you asked for
Protection of Documents
-remember your privileges, same ones from interrogatories
1. attorney/client
2. work product privilege
-compilations or assessments
3. common interest privilege
-multiple parties being sued, market-share liability (iuds, thalidomide, asbestos)
-not sure where they got the problem
-must hit every percentage of the industry (pay percentage of judgment)
4. medical and confessor privilege
5. overbroad and duplicative requests
1. scope (too many categories)
2. in time (too long a period of time)
-some other parties will provide better ways to redraft for what they are looking for
-can be tricky since they might be hiding a critical year or critical categories
6. inadmissible and irrelevant evidence
7. confidentiality agreements and protective orders
-review the documents you are producing
8. format objections to document requests
9. inadvertent production of documents
Drafting the Request
-review case
-create roadmap
-initial research
-take a look at forms first
(set up like a pleading)
***heading is not in the middle of the page!
Title and Intro Paragraph
Definitions
Instructions
Documents Requested
Documents Requested Example page 329
-"including, but not limited to, (3 or 4 examples of the term)"
-"for the period of (year), including but not limited to (3 or 4 examples of the term)"
-always good to give them examples so they understand what they are looking for
-Example: repairs, maintenance, improvement during the last 3 years but not limited to lighting, wiring, carpeting
-if you need to explain it, you need to re-draft it (unless it is terminology)
Discovery is not filed with the state courts in WA
-too much paperwork
-whether you are sending or arriving calendar these dates!
-in 30 days you will have a response
-if not, check on it
-if you produce documents, producing them waives any objections to producing them
-can't object after they were handed over
-you could still argue at trial about it, all documents are hearsay and you can object at trial
About Discovery Assignment
1. Interrogatories
2. Request to produce
-can be combined into one
-if the answer could be a document, make it a request to produce
3. Request to Admit
-is freestanding, can not be combined
#1. Please describe in detail how and when you learned of the UW Paralegal Program.
#2. Please describe all the projects you completed in litigation
RTP #1 Please produce all documents in the forgoing interrogatory
#3. Please identify the dates of all exams in fundamentals, lit and complex litigation
RTP #2 Please produce all documents in the forgoing interrogatory
-Bruce generally does it separately
-can identify in the Interrogatories but likes a separate sheet
-no real advantages, can do either way for the assignment
MIDTERM REVIEW
Injunctions
-14 days it dissolves
-14 calendar days, so holidays and weekends count
-less than 7 days you don't count it
-means it is calendar days
-if the court is closed, it is a holiday
-if it lands on a weekend or holiday, it moves to the next business day
CR 9 Notice pleading state
-no details
-very limited
-if it is a fact pleading state you need to show the facts of the case
Interpleading
-a party can leave a lawsuit
-airplane accident, insurance gives money to plaintiffs to split
-Escrow companies: earnest money down
find this rule, what does it say
-can you find it and use it
-legal authority for complete diversity
Fisons: take away why is it significant?
-preFisons: only get in trouble for willful holding of documents
-Fisons: broadened that to include half-truths, evasiveness
-tightened discovery for better truth and compliance
forum non conveins
-move a court from a proper venue and jurisdiction to another for conveniences of others
Tuesday, February 9, 2010
February 9th Notes
Litigation Basics
February 9, 2010
NEWS
Job Opportunity EXCLUSIVE
Paralegal Assistant - Perkins Coie - Patent Dept.
-Looking for 1 year experience
-Patent Prosecution (experience a plus not required)
-will@lawdawgs.com
Midterm
Multiple Choice: 9 question, 13 points
Short Answer: 20 question, 41 points
T/F: 5 question, 8 points
Essay: 2 question, 14 points
Total 76 points
(*1 free point)
Through Chapter 7. There are two questions on Discovery, both from my pre-Chapter 8 lecture NOT the book. Up to the Jan. 27th Notes.
not a lot of discovery questions
motions and earlier
Handouts 13 & 14
Articles on Paralegals
Writing Samples
---------------------------------------------------------------------------
Chapter 10
Objections to interrogatories
-Rule 26(g)(2) and Rule 33: objections signed by attorney
-argue they are overbroad, irrelevant, burdensome, vague, unintelligible
-the attorney is objecting not the client
Attorney-Client Privilege
-objection can be raised if it violates
-Rule 26(b)(5): objection must describe the nature of the information desired and how it is protected
Medical Privilege
Inadmissible and Irrelevant Evidence
-very important
-must be reasonably calculated to lead to admissible evidence
-can still ask questions about hearsay
Unduly Burdensome, Vague, Overbroad
-interrogatories that are complex and detailed and spend too much effort to answer
-watch what you write, it needs to be spoken to a jury
-10 years seems to be a good time table, more and it can be overbroad
-scope must be regarded too, be wary of words like "every"
-be specific in asking, too broad can lead to problems
Confidentially Agreements and Protective Orders
-where one party needs to keep secret
-imposed voluntarily through confidentially agreements
-court ordered by protective orders
Burden of proof
-party objecting to an interrogatory has the burden of proof
-specify ground for objection
-in camera viewing by judge before they make an order "in chambers" in latin
Chapter 10 Review Questions
1. What are interrogatories?
2. What are the purposes of filing interrogatories with the opposing party?
3. What are the advantages and disadvantages of using interrogatories?
4. What are the new rules regarding ESI and interrogatories?
5. What are the specific types of interrogatories that can be asked?
6. What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document production request in relation to ESI?
7. What options are available to the requesting party should the responding party refuse to answer an interrogatory?
8. When is it necessary for the responding party to supplement an answer to an interrogatory?
9. What objections to interrogatories can be raised by the responding party?
10. What is the procedure for dealing with an objection based on privileged information?
Chapter 11
Physical and Mental Examination CR 35
-examination that a party of a lawsuit must undergo concerning a physical or mental condition that is pending legal action
-usually in Personal Injury cases
-request can be made even if the party who is to undergo the examination is a minor
-must be an important factor of the case
-can also be industrial accidents, paternity suits, disability for insurance, pre-existing the event, after the event
Reasons to Allow
-establish the truth about the allegations
-discourage plaintiffs exaggerated claims
-uncover inconsistencies between complaints and injury
-may also be against defendant (if the injuries was caused by some ailment)
-like a seizure, heart attack
-with affirmative defense
-expert witness CR 702
-have the same doctor examine and then testify
Filing a motion for compulsory examination
-schedule a mutual agreement of the attorneys
-compulsory examination: examination court ordered
-set up a time that works with both parties
--supporting the motion, send with meet and confer
Rule 35(a): party requesting the examination is responsible for giving notice
-motion must be specific
Requirements for granting the motion
1. Good Cause
2. Nature of condition is in controversy
-fights tend to be over scope
Labor and Injuries (L&I)
-workman's comp for injuries
-if you are hurt on the job, they pay for the loses
-not a fault base system
-the trade off for this is you can not sue your boss or co-workers
IMF (independent(insurance) medical exam)
-own insurance does exam
-1st Party
-Client's own insurer
CR 35
-3rd Party
-Opposing Party
-Results and parallels are similar
-can always record these sessions
Evidence of Good cause
-very strict
-only if the same information can not be found anywhere else
Condition of Controversy
-condition is part of lawsuit
-request for mental examination would not be granted if neither mental nor emotional injuries have been alleged
If you refuse to submit to examination:
-motion to compel
-motion to dismiss
Granting a Motion
-does not mean that the moving party must prove his case on the merits as he would have to do at a trial
-does not automatically mean that a hearing will be held prior to entry of an order for the examination
-it will also issue an order compelling the party to submit to the examination
-party seeking order includes a proposed order when filing the original motion
Arranging the examination of an Opposing Party
-schedule the actual examination
-contact the other party to see if there are objections
-draft motion and proposed order
-usually voluntary arrangement
-you choose physician unless there is an objection
-then court will make selection
-contact physician for report
-add the fee to the client's ledger
-prepare a summary of events
Preparing a client for examination
-notify client
-explain purpose
-caution client not to disclose information
-tell client to review medications, medical conditions
-Do not bring medical diaries or journals with them
-may hurt credibility if they think you are reading it out of a journal
-try to recall major dates and procedures, common medications
-can request the client's physician during the examination
-made through opposing attorney
-look at client's doctor's schedule
-list of medications
-list of appointments
-list of specialist
-list of extra medical equipment
REMEMBER THESE PEOPLE ARE PAID TO NOT BELIEVE YOU
-the exam begins when you drive into the parking lot
(they will have people watching you in the parking lot!)
-receptionist is a spy: never discuss case in front of the receptionist
-better that they never see you talking with your attorney
-No medical patient privilege here
-dirty tricks will occur
-they will drop things waiting for you to pick it up, ask you to hop onto the table, short skirts to distract for head jerks
-do not be overly dramatic to try to convince
-do not be overly macho or stoic, need to be honest with pain
-there will be phony tests that will not cause pain to destroy your credibility
Sanctions
-can strike all pleadings, staying proceedings, entry of judgment, dismissal
Distributing the Medical Records
-be cautious when asking for physician's reports or lab results
-if you request a copy, the other side gets a copy and any reports that deal with the same condition
-that is changed in WA, you are entitled to a report and conceded to nothing extra
Medical Reports and ESI
-nothing specific mentioned
Chapter 11 Review Questions
1. Define physical and mental examination.
2. Name 4 types of cases in which a physical or mental examination might be requested.
3. Identify four reasons the law allows 1 party to compel another party to submit to a physical or mental examination.
4. Give an example of a party "in the custody of" of "under legal control of" another person.
5. Explain the concepts of good cause and in controversy as they relate to the psychical and mental examinations.
6. What is the procedure for obtaining a examination if the parties can not agree on the examination.
7. Explain the paralegal's role in arranging an examination.
8. Explain the paralegal's role in preparing a client for an examination.
9. What are the considerations to be evaluated prior to requesting a copy of the examination report.
10. What are the possible consequences of a party's refusal to submit to an examination ordered by the court?
Chapter 12
CR 34 Production of Documents and things and entry upon land for inspection and other purposes
-misleading, people just use it for documents but it can be used for other things
MIDTERM
2 essays
evidence T/F
maybe injunction question (3 stages)
Fisions case
-discovery question on what can be used 1985 kids case
half to third are go find the rule questions
habit or character questions
hearsay rule
exceptions to hearsay rules
RCW questions so bring handouts
CR 6
need the 4 rules from class
-7/11 rules(counting questions)
What IOLTA account is and what general are
correct citing of court rules
Bring scratch paper
Injunctions
TYPES
1. mandatory
2. prohibitory
Provisional Remedies
1. tro 14 days
2. preliminary is in the 14 days
3. permanent
Need to have
interpretive damages
prevailing on merits (will win)
Judge will require you to post a bond
NEEDS TO have bond posted in case you are wrong
complete diversity
-needs to be different on both sides
-otherwise drop person that is on both sides or state court
relation back doctrine
after the statute of limitations has run
-incident date
-complaint date
-statute of limitations
-can you bring in additional parties and cause of actions
-what is the cause of actions date
-has it run?
say original is 3 years
-filed at 2 years
-any cause of action with longer than 2 years had not run when you filed the complaint
if it can be filed on the date you filed, it is fine
February 9, 2010
NEWS
Job Opportunity EXCLUSIVE
Paralegal Assistant - Perkins Coie - Patent Dept.
-Looking for 1 year experience
-Patent Prosecution (experience a plus not required)
-will@lawdawgs.com
Midterm
Multiple Choice: 9 question, 13 points
Short Answer: 20 question, 41 points
T/F: 5 question, 8 points
Essay: 2 question, 14 points
Total 76 points
(*1 free point)
Through Chapter 7. There are two questions on Discovery, both from my pre-Chapter 8 lecture NOT the book. Up to the Jan. 27th Notes.
not a lot of discovery questions
motions and earlier
Handouts 13 & 14
Articles on Paralegals
Writing Samples
---------------------------------------------------------------------------
Chapter 10
Objections to interrogatories
-Rule 26(g)(2) and Rule 33: objections signed by attorney
-argue they are overbroad, irrelevant, burdensome, vague, unintelligible
-the attorney is objecting not the client
Attorney-Client Privilege
-objection can be raised if it violates
-Rule 26(b)(5): objection must describe the nature of the information desired and how it is protected
Medical Privilege
Inadmissible and Irrelevant Evidence
-very important
-must be reasonably calculated to lead to admissible evidence
-can still ask questions about hearsay
Unduly Burdensome, Vague, Overbroad
-interrogatories that are complex and detailed and spend too much effort to answer
-watch what you write, it needs to be spoken to a jury
-10 years seems to be a good time table, more and it can be overbroad
-scope must be regarded too, be wary of words like "every"
-be specific in asking, too broad can lead to problems
Confidentially Agreements and Protective Orders
-where one party needs to keep secret
-imposed voluntarily through confidentially agreements
-court ordered by protective orders
Burden of proof
-party objecting to an interrogatory has the burden of proof
-specify ground for objection
-in camera viewing by judge before they make an order "in chambers" in latin
Chapter 10 Review Questions
1. What are interrogatories?
2. What are the purposes of filing interrogatories with the opposing party?
3. What are the advantages and disadvantages of using interrogatories?
4. What are the new rules regarding ESI and interrogatories?
5. What are the specific types of interrogatories that can be asked?
6. What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document production request in relation to ESI?
7. What options are available to the requesting party should the responding party refuse to answer an interrogatory?
8. When is it necessary for the responding party to supplement an answer to an interrogatory?
9. What objections to interrogatories can be raised by the responding party?
10. What is the procedure for dealing with an objection based on privileged information?
Chapter 11
Physical and Mental Examination CR 35
-examination that a party of a lawsuit must undergo concerning a physical or mental condition that is pending legal action
-usually in Personal Injury cases
-request can be made even if the party who is to undergo the examination is a minor
-must be an important factor of the case
-can also be industrial accidents, paternity suits, disability for insurance, pre-existing the event, after the event
Reasons to Allow
-establish the truth about the allegations
-discourage plaintiffs exaggerated claims
-uncover inconsistencies between complaints and injury
-may also be against defendant (if the injuries was caused by some ailment)
-like a seizure, heart attack
-with affirmative defense
-expert witness CR 702
-have the same doctor examine and then testify
Filing a motion for compulsory examination
-schedule a mutual agreement of the attorneys
-compulsory examination: examination court ordered
-set up a time that works with both parties
--supporting the motion, send with meet and confer
Rule 35(a): party requesting the examination is responsible for giving notice
-motion must be specific
Requirements for granting the motion
1. Good Cause
2. Nature of condition is in controversy
-fights tend to be over scope
Labor and Injuries (L&I)
-workman's comp for injuries
-if you are hurt on the job, they pay for the loses
-not a fault base system
-the trade off for this is you can not sue your boss or co-workers
IMF (independent(insurance) medical exam)
-own insurance does exam
-1st Party
-Client's own insurer
CR 35
-3rd Party
-Opposing Party
-Results and parallels are similar
-can always record these sessions
Evidence of Good cause
-very strict
-only if the same information can not be found anywhere else
Condition of Controversy
-condition is part of lawsuit
-request for mental examination would not be granted if neither mental nor emotional injuries have been alleged
If you refuse to submit to examination:
-motion to compel
-motion to dismiss
Granting a Motion
-does not mean that the moving party must prove his case on the merits as he would have to do at a trial
-does not automatically mean that a hearing will be held prior to entry of an order for the examination
-it will also issue an order compelling the party to submit to the examination
-party seeking order includes a proposed order when filing the original motion
Arranging the examination of an Opposing Party
-schedule the actual examination
-contact the other party to see if there are objections
-draft motion and proposed order
-usually voluntary arrangement
-you choose physician unless there is an objection
-then court will make selection
-contact physician for report
-add the fee to the client's ledger
-prepare a summary of events
Preparing a client for examination
-notify client
-explain purpose
-caution client not to disclose information
-tell client to review medications, medical conditions
-Do not bring medical diaries or journals with them
-may hurt credibility if they think you are reading it out of a journal
-try to recall major dates and procedures, common medications
-can request the client's physician during the examination
-made through opposing attorney
-look at client's doctor's schedule
-list of medications
-list of appointments
-list of specialist
-list of extra medical equipment
REMEMBER THESE PEOPLE ARE PAID TO NOT BELIEVE YOU
-the exam begins when you drive into the parking lot
(they will have people watching you in the parking lot!)
-receptionist is a spy: never discuss case in front of the receptionist
-better that they never see you talking with your attorney
-No medical patient privilege here
-dirty tricks will occur
-they will drop things waiting for you to pick it up, ask you to hop onto the table, short skirts to distract for head jerks
-do not be overly dramatic to try to convince
-do not be overly macho or stoic, need to be honest with pain
-there will be phony tests that will not cause pain to destroy your credibility
Sanctions
-can strike all pleadings, staying proceedings, entry of judgment, dismissal
Distributing the Medical Records
-be cautious when asking for physician's reports or lab results
-if you request a copy, the other side gets a copy and any reports that deal with the same condition
-that is changed in WA, you are entitled to a report and conceded to nothing extra
Medical Reports and ESI
-nothing specific mentioned
Chapter 11 Review Questions
1. Define physical and mental examination.
2. Name 4 types of cases in which a physical or mental examination might be requested.
3. Identify four reasons the law allows 1 party to compel another party to submit to a physical or mental examination.
4. Give an example of a party "in the custody of" of "under legal control of" another person.
5. Explain the concepts of good cause and in controversy as they relate to the psychical and mental examinations.
6. What is the procedure for obtaining a examination if the parties can not agree on the examination.
7. Explain the paralegal's role in arranging an examination.
8. Explain the paralegal's role in preparing a client for an examination.
9. What are the considerations to be evaluated prior to requesting a copy of the examination report.
10. What are the possible consequences of a party's refusal to submit to an examination ordered by the court?
Chapter 12
CR 34 Production of Documents and things and entry upon land for inspection and other purposes
-misleading, people just use it for documents but it can be used for other things
MIDTERM
2 essays
evidence T/F
maybe injunction question (3 stages)
Fisions case
-discovery question on what can be used 1985 kids case
half to third are go find the rule questions
habit or character questions
hearsay rule
exceptions to hearsay rules
RCW questions so bring handouts
CR 6
need the 4 rules from class
-7/11 rules(counting questions)
What IOLTA account is and what general are
correct citing of court rules
Bring scratch paper
Injunctions
TYPES
1. mandatory
2. prohibitory
Provisional Remedies
1. tro 14 days
2. preliminary is in the 14 days
3. permanent
Need to have
interpretive damages
prevailing on merits (will win)
Judge will require you to post a bond
NEEDS TO have bond posted in case you are wrong
complete diversity
-needs to be different on both sides
-otherwise drop person that is on both sides or state court
relation back doctrine
after the statute of limitations has run
-incident date
-complaint date
-statute of limitations
-can you bring in additional parties and cause of actions
-what is the cause of actions date
-has it run?
say original is 3 years
-filed at 2 years
-any cause of action with longer than 2 years had not run when you filed the complaint
if it can be filed on the date you filed, it is fine
Thursday, February 4, 2010
February 4th Notes
Litigation Basics
February 4, 2010
NEWS
DATES:
Feb 11th: Midterm
Feb 25th: Discovery Project Due
-make interrogatory questions count
-no need for biographical background
-get to the real questions, people, documents, prior issues
-------------------------------------------------------------------
"I keep six honest serving men they taught me all I knew their names are What and Why and When and How and Where and Who." ~Rudyard Kipling
District Court is up to 75K instead of 50 K in WA State
-he's not a fan of the interrogatories
-good for gathering background information but getting substantive information is ineffective
-generates more work than it's worth
-overrated discovery device
-never usually impeaches at trial
Federal Rules is 25 questions
King County is now 40 questions
-starting to limit discovery all over the nation
Chapter 10
Interrogatories
-written questions submitted by one party to another party
-answer the questions in writing and under oath
-Rule 33 regulates the use
-should not be served until the parties have initially conferred under Rule 26
-cannot be served on non-party witnesses involved in a lawsuit
-the answers are from the client, not the attorney
-30 days to respond or 40 if they are served with complaint and summons
-can give a document in lieu of an answer
Scope and Number of Interrogatories
-Rule 33 and Rule 26(b)(1): broad scope of discovery applies to interrogatories
-Rule 26: no more than 25 interrogatories
Purpose
-obtain information about basic facts in a case and to supplement the information required to be disclosed under Rule 26
-determine the party's contentions and identify specific individuals or documents that support those contentions
-can be used to impeach a witness at the time of the trial
-may facilitate settlement of the case
Advantages
-simple, expensive, efficient
-no need to schedule
-more thorough than a deposition
-complement other discovery
-answering party has to make an effort to answer the question
-no difference in the law between under your control and in your possession
-examples: tax forms, insurance policies may need to call for these
-duty to supplement
Disadvantages
-may not eliminate need to take depositions
-lack spontaneity
-do not allow for follow up questions
-may help the opposing party in preparation for their case
Discrete subpart
-subpart in the question that stands alone
-it could be its own interrogatory
Example:
Have you ever been to the beach?
-When?
-What beach?
-Who were you with?
-example is fine, it is a proper subpart
-might want to send some questions first then save some for later
Drafting Interrogatories
3 "C"s of Interrogatories
-clear
-cogent
-concise
-the kind of questions you could read to a jury and have them understand it
-DANGER "and, if so," means you are being long-winded
-one idea per interrogatory
Preliminary Steps
-to be effective:
-familiarize with the facts of the case, both halves
-should be able to answer, "Why am I asking this?"
-what is needed to prove our theories, what are they going to use against us
-make a plan to follow, what you want to get from this person
-pick some theories you want to follow
-review pleadings, correspondence files, attorney notes, research notebook, discovery findings
Form and Content of Interrogatories
-consult the appropriate court rules to determine the form required in your jurisdiction
-contain title, intro paragraph, definitions, instructions, specific interrogatories, a signature, certificate of service
-DO NOT DO IT LIKE THE BOOK!
-just like pleadings heading says "Plaintiff name First set of Interrogatories" instead of Answer of Complaint
Title and Introductory Paragraph
-identify documents
-identify the party serving the interrogatories
-the party receiving the interrogatories
-number of set of interrogatories
-Federal Rules do not require introductory paragraph
-identifies the recipient of the interrogatories
-answer is required within a period of time
-state federal or state rule under which the interrogatories are in
-number of interrogatories
-statutory requirements for supplemental answers
Definitions
-OPTIONAL FOR PROJECT
-distinct so that responding party can easily locate it
-clear up discrepancies
-eliminates need to repeat the meaning of a word
-enlarges the number of questions asked by adding subtopics
-to prevent objections
Instructions
-OPTIONAL FOR PROJECT
-prevent confusion and help the party prepare
-desired action of other party
-consider the time the interrogatories will cover
-not only accident but prior
-avoid being overbroad
-duty to supplement when necessary
-conditional supplement State(WA): if a prior response has changed, experts added, learned of new information
-page 277
-Usually add B. and C. to the instructions
-boilerplate add-ons
-Rule 26(e): only require supplementation when ordered by the court when a party learns that the response was materially incomplete or incorrect and the correct information has not otherwise been made known during the discovery process
How to draft the Interrogatories
1. is it targeted to my goal? (substance)
2. how have i phrased it, clear, cogent, concise (form)
3. is it going to elicit substantive information? (people, facts, documents, contentions)
-be broad with your questions
-identify people with knowledge of the fact rather than people who saw something
-better for getting more people, don't be too specific
-he's going to try to answer with just "yes" and "no"
-avoid answering yes and no questions!
-get facts and documents
-do not waste questions on documents you can request to produceb
Specific Interrogatories
-number of specific questions allowed under the new Rules 25
1. Interrogatories that identify people
-specific questions about individuals
-identifies of people that gave statements to the party's attorney
-identify the expert witnesses
2. Interrogatories to establish facts
-seek to uncover facts surrounding allegations
3. Interrogatories that identify documents
-seek information about medical reports, medical bills, earnings, income tax returns
4. Interrogatories that identify contentions
-Rule 33(c) need not be objectionable simply if it asks "an opinion or contention that relates to fact or the application of law to facts"
-2 or 3 questions in the set REQUIRED on assignment
-valuable, allegations and how you intend to prove them
-"Since you contend, (insert something from their Pleadings to use), was there ..."
-"If, so, please state all facts upon which you base your contentions."
-The answers will always be yes since this information came from the pleading
-way of exploring the contentions against your client
Example:
Do you contend that Bruce's Lit class is boring?
If so, please identify
a.) All persons w/knowledge /info about this contention.
b.) All documents which support/tend to support this contention.
c.) All facts that support/tend to support this contention.
-This defense will serve as a place holder until you are ready to answer the allegations:
All defenses asserted are upon advice of counsel. Discovery and investigation are continuing and ongoing and no where near completion at this time. Consequently this responding party reserves all rights to supplement or amend this response should further facts, documents, persons, be discovered.
-interrogatories need not be answered until after designated discovery has been completed or until pretrial conference or other later time
Summary Paragraph
-used to request any information that may be relevant
-never answer them
-they don't want to help you and they don't know what you think is relevant
Signature and Certificate of Service
-signature block, a certificate of service sets out the date, type of service and whom service of the interrogatories were made
-Interrogatories are not filed in Federal Court
Tips for Drafting interrogatories
1. read all documents
2. understand what the attorney wants to accomplish
3. read court rules to determine format and number of interrogatories permitted
4. consult forms interrogatories
5. draft preliminary portions
6. draft facts and issues, identify facts and expert witnesses, ask for legal and factual contentions
7. keep the interrogatories simple
8. organize into categories
9. who what where when how and why
10. request all facts relied upon in the last pleading filed
11. not be excessive in length
12. look for objections
13. proofread carefully
14. arrange service and filing
15. calendar the answer date and follow up for same
16. consult about motion to compel
Motion to Compel
-when a party does not cooperate
-read each answer, review the objections, note answers that are incomplete
-difficult to resolve
-misuse of the term N/A, use when you mean "no"
-sanctions under rule 37
Determining time limits
-normally 30 days after the interrogatories were received
-if you wait too long to answer ask for an extension to respond prior to 30 days
-to answer or otherwise respond
Checklist for writing Answers
1. Calendar deadline for answer
2. Send copy to client and schedule meeting to work on answer
3. Make another copy for a file
4. Make notes about individuals that might have information to answer
5. Review for contradictions
6. Look for possible objections
7. Draft after information given
8. Arrange for filing and signing
9. Update as needed
Answering the Interrogatories
-answer in "I" form, it is the client's answers
-you or the attorney can help answer but it is in the client's voice
Form of the Answers
-answered separately in writing
-answers must be engrossed by restating the interrogatories to be answered
-answer needs to incorporate the question
example: "addressing the question to how fast I was going, I was going 25mph"
-most states do not use this technique
-duplicate the interrogatory
-WA: interrogatory, leave a space, then they answer below the question, in one document
CR 33(a)
Content of the Answers
-straightforward and complete
-if the answer is unknown you may state that fact and supplement the answers later
-designated hearsay
-interrogatories answers are admissible only against the interest of the responding party
-can not use client's answers to prove facts in your case
-if you refuse to answer, must give a reason
-do not produce extra information
Fulfilling the Duty to Supplement
1. party learns that response given was some material respect incomplete or incorrect and the additional information has not been made known
2. order of court
-need to go through interrogatories prior to court to update and get the update from the other side
Objections to interrogatories
-Rule 26(g)(2) and Rule 33: objections signed by attorney
-argue they are overbroad, irrelevant, burdensome, vague, unintelligible
1. Attorney-Client Privilege
-objection can be raised if it violates
-Rule 26(b)(5): objection must describe the nature of the information desired and how it is protected
2. Medical Privilege
3. Inadmissible and Irrelevant Evidence
-must be reasonably calculated to lead to admissible evidence
4. Unduly Burdensome
-interrogatories that are complex and detailed and spend too much effort to answer
5. Confidentially Agreements and Protective Orders
-where one party needs to keep secret
-imposed voluntarily through confidentially agreements
-court ordered by protective orders
Burden of proof
-party objecting to an interrogatory has the burden of proof
-specify ground for objection
-in camera viewing by judge
Chapter 10 Review Questions
1. What are interrogatories?
2. What are the purposes of filing interrogatories with the opposing party?
3. What are the advantages and disadvantages of using interrogatories?
4. What are the new rules regarding ESI and interrogatories?
5. What are the specific types of interrogatories that can be asked?
6. What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document production request in relation to ESI?
7. What options are available to the requesting party should the responding party refuse to answer an interrogatory?
8. When is it necessary for the responding party to supplement an answer to an interrogatory?
9. What objections to interrogatories can be raised by the responding party?
10. What is the procedure for dealing with an objection based on privileged information?
February 4, 2010
NEWS
DATES:
Feb 11th: Midterm
Feb 25th: Discovery Project Due
-make interrogatory questions count
-no need for biographical background
-get to the real questions, people, documents, prior issues
-------------------------------------------------------------------
"I keep six honest serving men they taught me all I knew their names are What and Why and When and How and Where and Who." ~Rudyard Kipling
District Court is up to 75K instead of 50 K in WA State
-he's not a fan of the interrogatories
-good for gathering background information but getting substantive information is ineffective
-generates more work than it's worth
-overrated discovery device
-never usually impeaches at trial
Federal Rules is 25 questions
King County is now 40 questions
-starting to limit discovery all over the nation
Chapter 10
Interrogatories
-written questions submitted by one party to another party
-answer the questions in writing and under oath
-Rule 33 regulates the use
-should not be served until the parties have initially conferred under Rule 26
-cannot be served on non-party witnesses involved in a lawsuit
-the answers are from the client, not the attorney
-30 days to respond or 40 if they are served with complaint and summons
-can give a document in lieu of an answer
Scope and Number of Interrogatories
-Rule 33 and Rule 26(b)(1): broad scope of discovery applies to interrogatories
-Rule 26: no more than 25 interrogatories
Purpose
-obtain information about basic facts in a case and to supplement the information required to be disclosed under Rule 26
-determine the party's contentions and identify specific individuals or documents that support those contentions
-can be used to impeach a witness at the time of the trial
-may facilitate settlement of the case
Advantages
-simple, expensive, efficient
-no need to schedule
-more thorough than a deposition
-complement other discovery
-answering party has to make an effort to answer the question
-no difference in the law between under your control and in your possession
-examples: tax forms, insurance policies may need to call for these
-duty to supplement
Disadvantages
-may not eliminate need to take depositions
-lack spontaneity
-do not allow for follow up questions
-may help the opposing party in preparation for their case
Discrete subpart
-subpart in the question that stands alone
-it could be its own interrogatory
Example:
Have you ever been to the beach?
-When?
-What beach?
-Who were you with?
-example is fine, it is a proper subpart
-might want to send some questions first then save some for later
Drafting Interrogatories
3 "C"s of Interrogatories
-clear
-cogent
-concise
-the kind of questions you could read to a jury and have them understand it
-DANGER "and, if so," means you are being long-winded
-one idea per interrogatory
Preliminary Steps
-to be effective:
-familiarize with the facts of the case, both halves
-should be able to answer, "Why am I asking this?"
-what is needed to prove our theories, what are they going to use against us
-make a plan to follow, what you want to get from this person
-pick some theories you want to follow
-review pleadings, correspondence files, attorney notes, research notebook, discovery findings
Form and Content of Interrogatories
-consult the appropriate court rules to determine the form required in your jurisdiction
-contain title, intro paragraph, definitions, instructions, specific interrogatories, a signature, certificate of service
-DO NOT DO IT LIKE THE BOOK!
-just like pleadings heading says "Plaintiff name First set of Interrogatories" instead of Answer of Complaint
Title and Introductory Paragraph
-identify documents
-identify the party serving the interrogatories
-the party receiving the interrogatories
-number of set of interrogatories
-Federal Rules do not require introductory paragraph
-identifies the recipient of the interrogatories
-answer is required within a period of time
-state federal or state rule under which the interrogatories are in
-number of interrogatories
-statutory requirements for supplemental answers
Definitions
-OPTIONAL FOR PROJECT
-distinct so that responding party can easily locate it
-clear up discrepancies
-eliminates need to repeat the meaning of a word
-enlarges the number of questions asked by adding subtopics
-to prevent objections
Instructions
-OPTIONAL FOR PROJECT
-prevent confusion and help the party prepare
-desired action of other party
-consider the time the interrogatories will cover
-not only accident but prior
-avoid being overbroad
-duty to supplement when necessary
-conditional supplement State(WA): if a prior response has changed, experts added, learned of new information
-page 277
-Usually add B. and C. to the instructions
-boilerplate add-ons
-Rule 26(e): only require supplementation when ordered by the court when a party learns that the response was materially incomplete or incorrect and the correct information has not otherwise been made known during the discovery process
How to draft the Interrogatories
1. is it targeted to my goal? (substance)
2. how have i phrased it, clear, cogent, concise (form)
3. is it going to elicit substantive information? (people, facts, documents, contentions)
-be broad with your questions
-identify people with knowledge of the fact rather than people who saw something
-better for getting more people, don't be too specific
-he's going to try to answer with just "yes" and "no"
-avoid answering yes and no questions!
-get facts and documents
-do not waste questions on documents you can request to produceb
Specific Interrogatories
-number of specific questions allowed under the new Rules 25
1. Interrogatories that identify people
-specific questions about individuals
-identifies of people that gave statements to the party's attorney
-identify the expert witnesses
2. Interrogatories to establish facts
-seek to uncover facts surrounding allegations
3. Interrogatories that identify documents
-seek information about medical reports, medical bills, earnings, income tax returns
4. Interrogatories that identify contentions
-Rule 33(c) need not be objectionable simply if it asks "an opinion or contention that relates to fact or the application of law to facts"
-2 or 3 questions in the set REQUIRED on assignment
-valuable, allegations and how you intend to prove them
-"Since you contend, (insert something from their Pleadings to use), was there ..."
-"If, so, please state all facts upon which you base your contentions."
-The answers will always be yes since this information came from the pleading
-way of exploring the contentions against your client
Example:
Do you contend that Bruce's Lit class is boring?
If so, please identify
a.) All persons w/knowledge /info about this contention.
b.) All documents which support/tend to support this contention.
c.) All facts that support/tend to support this contention.
-This defense will serve as a place holder until you are ready to answer the allegations:
All defenses asserted are upon advice of counsel. Discovery and investigation are continuing and ongoing and no where near completion at this time. Consequently this responding party reserves all rights to supplement or amend this response should further facts, documents, persons, be discovered.
-interrogatories need not be answered until after designated discovery has been completed or until pretrial conference or other later time
Summary Paragraph
-used to request any information that may be relevant
-never answer them
-they don't want to help you and they don't know what you think is relevant
Signature and Certificate of Service
-signature block, a certificate of service sets out the date, type of service and whom service of the interrogatories were made
-Interrogatories are not filed in Federal Court
Tips for Drafting interrogatories
1. read all documents
2. understand what the attorney wants to accomplish
3. read court rules to determine format and number of interrogatories permitted
4. consult forms interrogatories
5. draft preliminary portions
6. draft facts and issues, identify facts and expert witnesses, ask for legal and factual contentions
7. keep the interrogatories simple
8. organize into categories
9. who what where when how and why
10. request all facts relied upon in the last pleading filed
11. not be excessive in length
12. look for objections
13. proofread carefully
14. arrange service and filing
15. calendar the answer date and follow up for same
16. consult about motion to compel
Motion to Compel
-when a party does not cooperate
-read each answer, review the objections, note answers that are incomplete
-difficult to resolve
-misuse of the term N/A, use when you mean "no"
-sanctions under rule 37
Determining time limits
-normally 30 days after the interrogatories were received
-if you wait too long to answer ask for an extension to respond prior to 30 days
-to answer or otherwise respond
Checklist for writing Answers
1. Calendar deadline for answer
2. Send copy to client and schedule meeting to work on answer
3. Make another copy for a file
4. Make notes about individuals that might have information to answer
5. Review for contradictions
6. Look for possible objections
7. Draft after information given
8. Arrange for filing and signing
9. Update as needed
Answering the Interrogatories
-answer in "I" form, it is the client's answers
-you or the attorney can help answer but it is in the client's voice
Form of the Answers
-answered separately in writing
-answers must be engrossed by restating the interrogatories to be answered
-answer needs to incorporate the question
example: "addressing the question to how fast I was going, I was going 25mph"
-most states do not use this technique
-duplicate the interrogatory
-WA: interrogatory, leave a space, then they answer below the question, in one document
CR 33(a)
Content of the Answers
-straightforward and complete
-if the answer is unknown you may state that fact and supplement the answers later
-designated hearsay
-interrogatories answers are admissible only against the interest of the responding party
-can not use client's answers to prove facts in your case
-if you refuse to answer, must give a reason
-do not produce extra information
Fulfilling the Duty to Supplement
1. party learns that response given was some material respect incomplete or incorrect and the additional information has not been made known
2. order of court
-need to go through interrogatories prior to court to update and get the update from the other side
Objections to interrogatories
-Rule 26(g)(2) and Rule 33: objections signed by attorney
-argue they are overbroad, irrelevant, burdensome, vague, unintelligible
1. Attorney-Client Privilege
-objection can be raised if it violates
-Rule 26(b)(5): objection must describe the nature of the information desired and how it is protected
2. Medical Privilege
3. Inadmissible and Irrelevant Evidence
-must be reasonably calculated to lead to admissible evidence
4. Unduly Burdensome
-interrogatories that are complex and detailed and spend too much effort to answer
5. Confidentially Agreements and Protective Orders
-where one party needs to keep secret
-imposed voluntarily through confidentially agreements
-court ordered by protective orders
Burden of proof
-party objecting to an interrogatory has the burden of proof
-specify ground for objection
-in camera viewing by judge
Chapter 10 Review Questions
1. What are interrogatories?
2. What are the purposes of filing interrogatories with the opposing party?
3. What are the advantages and disadvantages of using interrogatories?
4. What are the new rules regarding ESI and interrogatories?
5. What are the specific types of interrogatories that can be asked?
6. What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document production request in relation to ESI?
7. What options are available to the requesting party should the responding party refuse to answer an interrogatory?
8. When is it necessary for the responding party to supplement an answer to an interrogatory?
9. What objections to interrogatories can be raised by the responding party?
10. What is the procedure for dealing with an objection based on privileged information?
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