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