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
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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