February 23rd Notes

Litigation Basics
February 23, 2010

NEWS
Calendar:
3/3 Electronic Discovery
3/4 Law Dawgs
3/9 Review
3/11 Final
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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
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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