Litigation Specialties: Family Law
March 30, 2010
NEWS
She teaches first 5 classes than another teacher does the next 5 classes
No final, No exams, All projects
Law Tech:
-Adobe Standard, Word Savvy, Dragon Naturally Speaking, Hot Docs, Cloud Computing
---------------------------------------------------------------------------------------------------
Class 1: Marriage
Historical Content
Betrothal
-looking at Old English law
-arranged and contractual
-ways to get land or keep land in the family
Ceremonial Elements
-wealthy would have a ceremony with witnesses
-prevention on annulment and prevention of illegitimacy
-peasants could easily marry, just as living as man and wife
Two Early Forms of Marriage
1. Sponsalia per verba de praesenti
-promise of marriage
2. Sponsalia per verba de futuro
-future promise to marry
Lord Hardwicke's Act 1753
-laws to regulate marriage
-prevent family marriage in bloodlines
-many of our laws came from this act
Rise of Catholic Church
-increased church control
-unit of production
-unit of inheritance
Rules affecting the validity
1. prohibition of blood relationships
-most state prohibit blood relationships to second cousins
2. infancy marriage
-age for marriage raised
3. ecclesiastical rules
-impotence, prior marriage, infancy, fraud, duress, insanity, consanguinity, affinity
4. court enforcement
-can be void or voidable
Marriage defined as:
-permanent, monogamous union between a man and a woman
-divorce was not an option
-object of marriage was procreation and land ownership
-strong prohibitions against adultery and fornication
-presumed they share the same domicile
Regulation:
1. 10th Amendment delegation clause to the states
-vary state to state
2. DOMA (defense of marriage act 1996)
-Full faith and credit clause
-What one state does the other state must honor
-This act allows states not to honor other state's marriage
Common Law Marriages
-informal form
-created out of necessity in the frontier
-AL, CO, IO, KS, MO, NH, OK, PA, RI, SC, TX, UT, DC
Requirements
-legal capacity to marry
-intent to marry and agree between themselves
-live together as man and wife cohabitation
-represent themselves to the world and husband and wife
-no time frame
Statutory Form: Ceremonial
-Why? Proved the marriage existed
-US State control
-revenue producing
Requirements
-license to marry
-waiting period before you can use the license
-ceremony performed by authorized person
-witnesses
-record of marriage made
Civil Unions/Domestic Partnerships
-lesser rights and changing statuses
Breach of Promise to Marry
-When marriage is called off
-Heart Balm statutes
Prenuptial Agreements
-came about due to the inheritance issues
-used to avoid potential unfair consequences of inheritance laws due to new marriage
Uniform Premarital Agreement Act
-regulation that allows the parties to choose the state's jurisdiction under which their contract will fall
WA Prenuptial Agreements
-written and signed by both parties
-highest duty of candor, good faith, sincerity
-requires full and complete financial disclosure
-requires meaningful opportunity (about 30 days) for independent legal advice for both parties
-voluntary consent
-spousal maintenance waiver may not stand up to scrutiny
Matson Test: 2 prongs
1. Is the contract fair?
2. If not fair, were they given an opportunity for review and legal advice?
(procedural fairness prong)
-Prenuptial, ante-nuptial (separation contracts) treated by same standards
-Ante-nuptial agreements consideration?
-continuation of the marriage? no divorce?
-What does "full disclosure" mean?
-Valuation process
-Need to worry more about businesses
-especially privately held businesses
Prenuptial Considerations
-Community estate
-post marriage employment
-education
-children of prior marriage
-outstanding spousal maintenance
-length of marriage
Drafting
-be careful of cut and paste use
-be clear and explicit
-video taping
-document everything
Post-signing
-inconsistent future conduct
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HOMEWORK
1. Read 94-97
2. Complete project 1
3. Bring a copy of WA Community property statute to class
-long doc so sharing is good or link to it during class
Wednesday, March 31, 2010
Friday, March 12, 2010
Spring 2010
To all the readers of this blog:
Congratulations on another semester done!
I plan to keep the notes and tapes going for the remainder of the program. I hope they have helped everyone and I do plan to keep the blog available after the program is complete. I will also be creating a blog with resources for Seattle Paralegals and plan to get that started during this break.
And as always, if you want to add to the notes, find something that needs a correction, or have a helpful resource or link, feel free to leave a comment and I will add it.
Enjoy the Spring Fever!
Sarah B.
*******************************************************
Courses for Spring 2010
PARA CP120 A Business Law
with Shelia Huber
Class Starts 04/01/2010 through 06/03/2010
Thursday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 639
Books For This Class:
Introduction to Business Law (Third ed.), Beatty & Samuelson
ISBN-10 0324826990; ISBN-13 0324826999
Class Website: http://faculty.washington.edu/hubers/uws_business%20law/index.shtml
First Assignment: Read Chapters 1, 3, 4, 5, 6, 7
--------------------------------------------------------------------------------------
PARA CP125 A Litigation Specialties
with Judith Maier
Class Starts 03/30/2010 through 06/01/2010
Tuesday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 733
Books For This Class:
Essentials: Family Law, by Katharine K. Baker and Katharine B. Silbaugh. Published by Wolters Kluwer Law and Business.
ISBN-13 number is: 978-0-7355-8296-5
Class Website: https://catalysttools.washington.edu/workspace/jam06/11785/
First Assignment: Read the Introduction and Chapter 1, pp. 23 -48
---------------------------------------------------------------------------------
PARA CP130A Complex Litigation
with Bruce Wiener
Class Starts 03/31/2010 through 06/02/2010
Wednesday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 639
No Books for this Class
---------------------------------------------------------------------------------
Parking Questions:
Commuter Services
206-221-3701
New Location at 3745 15th Ave NE in the parking garage
Congratulations on another semester done!
I plan to keep the notes and tapes going for the remainder of the program. I hope they have helped everyone and I do plan to keep the blog available after the program is complete. I will also be creating a blog with resources for Seattle Paralegals and plan to get that started during this break.
And as always, if you want to add to the notes, find something that needs a correction, or have a helpful resource or link, feel free to leave a comment and I will add it.
Enjoy the Spring Fever!
Sarah B.
*******************************************************
Courses for Spring 2010
PARA CP120 A Business Law
with Shelia Huber
Class Starts 04/01/2010 through 06/03/2010
Thursday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 639
Books For This Class:
Introduction to Business Law (Third ed.), Beatty & Samuelson
ISBN-10 0324826990; ISBN-13 0324826999
Class Website: http://faculty.washington.edu/hubers/uws_business%20law/index.shtml
First Assignment: Read Chapters 1, 3, 4, 5, 6, 7
--------------------------------------------------------------------------------------
PARA CP125 A Litigation Specialties
with Judith Maier
Class Starts 03/30/2010 through 06/01/2010
Tuesday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 733
Books For This Class:
Essentials: Family Law, by Katharine K. Baker and Katharine B. Silbaugh. Published by Wolters Kluwer Law and Business.
ISBN-13 number is: 978-0-7355-8296-5
Class Website: https://catalysttools.washington.edu/workspace/jam06/11785/
First Assignment: Read the Introduction and Chapter 1, pp. 23 -48
---------------------------------------------------------------------------------
PARA CP130A Complex Litigation
with Bruce Wiener
Class Starts 03/31/2010 through 06/02/2010
Wednesday 6:00pm-9:00pm
Health Sciences Building Wing T, Room 639
No Books for this Class
---------------------------------------------------------------------------------
Parking Questions:
Commuter Services
206-221-3701
New Location at 3745 15th Ave NE in the parking garage
Tuesday, March 9, 2010
March 9th Notes
Litigation Basics
March 9, 2010
NEWS
Discovery Average 62.2
Brief Average 44.2
Tomorrow
-Bruce will be on the Google Groups Webpage to answer questions between 6-9pm
He will be available through email at his home address and cell phone.
http://groups.google.com/group/uwparalegal?hl=en
-----------------------------------------------------------------
Final
T/F 6 for 10 pts
Short Answer 24 for 59 pts
Multiple Guess 7 for 14 pts
Essay (short) 5 for 17 pts
Extra Credit Multiple Choice 4
Bring all 3 books
-bring all handouts
Next Semester
No textbook for Complex Litigation
-1st, 14th amendment, tort, contract, bankruptcy
-new subject every night
-no homework
-midterm is take-home
-Wednesday nights
Review
ESI
-not essays
-just read the notes from that night
-nothing really from the book
Chapter 8
-purposes of discovery
-228 scope
-230 limits
Chapter 9
-specific questions about depositions
-Court Rule 30 state and federal
-read it over before the exam
-subpoenas Court Rules 45
-preparing client for deposition
-why?
-260 things you can do during the deposition
-263 various kinds of deposition summaries, likes page line
Chapter 10
-270 know general interrogatories
-Court rule 33 read it
-discrete subparts, understand them
-objections to interrogatories
Chapter 11
-Court Rule 35
-really covered this already
-ER 702 using a CR35 to obtain an expert for trial
-schedule a CR35 while getting a ER702
-kills 2 birds with one stone, solving evidence rule with 702 and getting our CR35 physical exam
-compulsory
-CR35 and IME differences
Chapter 12
-CR 34 read and know
-313 4 ways to get documents
-requests to produce, interrogatories in lei of an answer, subpoena duce tecum, deposed
-interrogatories can produce papers rather than information
-can not say to produce records in the rogs though but the other party can produce the documents if they want to instead of answering, this is why you follow it up with request to produce
-CR33(c)
-can not ask to produce everything that is relevant
-what is the major drawback for an overbroad request to produce documents
-overbroad issue
-end up with way too many documents, expensive, hours reviewing documents
-they might reject it and bother the judge about it
-motion to compel, meet and confer, time in court is added
-you pay for photocopies
-advantages of client involved request to produce early
-establishes report, do not inconvenience client, client does not know what is relevant, extensions not needed
Chapter 13
-admissions
-3 times you can use: apply law to the facts (admit landlord tenant act controls this case), getting admission of facts, getting admission that documents were genuine
-we don't want to spend a lot of time at court, we want to admit it
-things that you have to prove to show your case
-admitting a doc is genuine does not mean it is truthful
351-can still object to admissibility, relevance and truthfulness (all are separate)
353-WA is a deemed admitted state? yes same with the pleadings if you do not deny something it is true
Chapter 14
-questions on settlements not a lot since there was the assignment
380 settlement releases
-2 kinds global vs. partial
-paragraph on differences
-mutual is both parties have something to release like counterclaim
-mutual are either partial or general
-know dismissals
-CR41 know it
-review the major rules mentioned in the notes
RULES 30, 33, 41, 45
-ADR questions
-mandatory arbitration rules (questions on king county)
-state rules then local rules, how do they differ
Arbitration Rules
State Rules 4.2-7.3
Local Rules 2.3, 3.1, 4.2
-Mediation vs. arbitration
-nothing on the summary benches and trial
-binding vs. non-binding (no de novo) Right to trial
(no appeal all done) vs. (right to trial)
-no baseball arbitration no mini trial, nothing like that
Chapter 15
-preparation for trial
399 -CR15 amending the pleadings only once with permission of court or written consent of other party
-trial notebook (what 6 most important things in trial notebook)
CR45 preparing witnesses
-due process question somewhere
-general witness preparation
-enlarged exhibits? Why?
3 hallmarks of effective exhibits are: evaluating documents as trial
admitted doc vs demonstrative evidence
(admitted is evidence) vs (only illustrative purposes)
quotes are better than paraphrasing
3 reasons to visit courthouse before trial
-jury trial or bench trial
-considerations better off with bench trial (better in front of judge than jury)
-mock jury, shadow jury
-jury of 6 unless you ask for 12
-how to choose a jury
-ER904 purpose of this rule : to speed up trial, judicial resources, if there are no objections to the evidence
-breath and scope of the exam that proceeded it
-cross not on new topics
-only on topics of direct no matter how bad things are omitted
-remedy call as part of case in chief
-then take her on direct
-can lead on direct? Yes because hostile witness
-the redirect is then limited nothing new
-jury misconduct know,
quotient verdict vs chance verdict
-both jury misconduct
-chance jury decide on flip of coin, random event
-quotient all agree but on different amounts then add up and divide, average of everyone's idea on proper outcome
(all verdicts are quotient verdicts) they are because there are 12 of them with differing opinions, they discuss that difference of money damages
-they must agree on the number not just the average only permissible when all 12 agree on #
Chapter 16
-lightly tested
-look up rules on appeals
-appeal bonds and know those
-supersedas bond, appeal bonds
8.1 appellate rule
-time lines,
-notice of appeal 445
-post trial
-writ of execution
-garnishment
Extra Questions
Bonds
-supersedas vs appeal
-appeal: attorney fees and costs and interests, in order to file an appeal you need to be able to cover all the costs if it loses
- the bond can be canceled when you win
-supersedas: judgment stayed, you dont want them collecting on the judgment (as early as 10 days)
-they will stop the enforcement, provided you post the bond (twice the size of judgment)
-the winner wants their money now not later
-prevents the appeal from improper appeal filing
Rather have bench than jury
-elvira plotts type one
-farmer in a rural town
-metro bus mediation brief
-bank robbery
March 9, 2010
NEWS
Discovery Average 62.2
Brief Average 44.2
Tomorrow
-Bruce will be on the Google Groups Webpage to answer questions between 6-9pm
He will be available through email at his home address and cell phone.
http://groups.google.com/group/uwparalegal?hl=en
-----------------------------------------------------------------
Final
T/F 6 for 10 pts
Short Answer 24 for 59 pts
Multiple Guess 7 for 14 pts
Essay (short) 5 for 17 pts
Extra Credit Multiple Choice 4
Bring all 3 books
-bring all handouts
Next Semester
No textbook for Complex Litigation
-1st, 14th amendment, tort, contract, bankruptcy
-new subject every night
-no homework
-midterm is take-home
-Wednesday nights
Review
ESI
-not essays
-just read the notes from that night
-nothing really from the book
Chapter 8
-purposes of discovery
-228 scope
-230 limits
Chapter 9
-specific questions about depositions
-Court Rule 30 state and federal
-read it over before the exam
-subpoenas Court Rules 45
-preparing client for deposition
-why?
-260 things you can do during the deposition
-263 various kinds of deposition summaries, likes page line
Chapter 10
-270 know general interrogatories
-Court rule 33 read it
-discrete subparts, understand them
-objections to interrogatories
Chapter 11
-Court Rule 35
-really covered this already
-ER 702 using a CR35 to obtain an expert for trial
-schedule a CR35 while getting a ER702
-kills 2 birds with one stone, solving evidence rule with 702 and getting our CR35 physical exam
-compulsory
-CR35 and IME differences
Chapter 12
-CR 34 read and know
-313 4 ways to get documents
-requests to produce, interrogatories in lei of an answer, subpoena duce tecum, deposed
-interrogatories can produce papers rather than information
-can not say to produce records in the rogs though but the other party can produce the documents if they want to instead of answering, this is why you follow it up with request to produce
-CR33(c)
-can not ask to produce everything that is relevant
-what is the major drawback for an overbroad request to produce documents
-overbroad issue
-end up with way too many documents, expensive, hours reviewing documents
-they might reject it and bother the judge about it
-motion to compel, meet and confer, time in court is added
-you pay for photocopies
-advantages of client involved request to produce early
-establishes report, do not inconvenience client, client does not know what is relevant, extensions not needed
Chapter 13
-admissions
-3 times you can use: apply law to the facts (admit landlord tenant act controls this case), getting admission of facts, getting admission that documents were genuine
-we don't want to spend a lot of time at court, we want to admit it
-things that you have to prove to show your case
-admitting a doc is genuine does not mean it is truthful
351-can still object to admissibility, relevance and truthfulness (all are separate)
353-WA is a deemed admitted state? yes same with the pleadings if you do not deny something it is true
Chapter 14
-questions on settlements not a lot since there was the assignment
380 settlement releases
-2 kinds global vs. partial
-paragraph on differences
-mutual is both parties have something to release like counterclaim
-mutual are either partial or general
-know dismissals
-CR41 know it
-review the major rules mentioned in the notes
RULES 30, 33, 41, 45
-ADR questions
-mandatory arbitration rules (questions on king county)
-state rules then local rules, how do they differ
Arbitration Rules
State Rules 4.2-7.3
Local Rules 2.3, 3.1, 4.2
-Mediation vs. arbitration
-nothing on the summary benches and trial
-binding vs. non-binding (no de novo) Right to trial
(no appeal all done) vs. (right to trial)
-no baseball arbitration no mini trial, nothing like that
Chapter 15
-preparation for trial
399 -CR15 amending the pleadings only once with permission of court or written consent of other party
-trial notebook (what 6 most important things in trial notebook)
CR45 preparing witnesses
-due process question somewhere
-general witness preparation
-enlarged exhibits? Why?
3 hallmarks of effective exhibits are: evaluating documents as trial
admitted doc vs demonstrative evidence
(admitted is evidence) vs (only illustrative purposes)
quotes are better than paraphrasing
3 reasons to visit courthouse before trial
-jury trial or bench trial
-considerations better off with bench trial (better in front of judge than jury)
-mock jury, shadow jury
-jury of 6 unless you ask for 12
-how to choose a jury
-ER904 purpose of this rule : to speed up trial, judicial resources, if there are no objections to the evidence
-breath and scope of the exam that proceeded it
-cross not on new topics
-only on topics of direct no matter how bad things are omitted
-remedy call as part of case in chief
-then take her on direct
-can lead on direct? Yes because hostile witness
-the redirect is then limited nothing new
-jury misconduct know,
quotient verdict vs chance verdict
-both jury misconduct
-chance jury decide on flip of coin, random event
-quotient all agree but on different amounts then add up and divide, average of everyone's idea on proper outcome
(all verdicts are quotient verdicts) they are because there are 12 of them with differing opinions, they discuss that difference of money damages
-they must agree on the number not just the average only permissible when all 12 agree on #
Chapter 16
-lightly tested
-look up rules on appeals
-appeal bonds and know those
-supersedas bond, appeal bonds
8.1 appellate rule
-time lines,
-notice of appeal 445
-post trial
-writ of execution
-garnishment
Extra Questions
Bonds
-supersedas vs appeal
-appeal: attorney fees and costs and interests, in order to file an appeal you need to be able to cover all the costs if it loses
- the bond can be canceled when you win
-supersedas: judgment stayed, you dont want them collecting on the judgment (as early as 10 days)
-they will stop the enforcement, provided you post the bond (twice the size of judgment)
-the winner wants their money now not later
-prevents the appeal from improper appeal filing
Rather have bench than jury
-elvira plotts type one
-farmer in a rural town
-metro bus mediation brief
-bank robbery
Friday, March 5, 2010
March 4th Notes
Litigation Basics
March 4, 2010
Law Dawgs Career Night
-the question and answer session is in the Taped Lectures section
-several handouts on the profiles of the speakers were available
March 4, 2010
Law Dawgs Career Night
-the question and answer session is in the Taped Lectures section
-several handouts on the profiles of the speakers were available
Wednesday, March 3, 2010
March 3rd Notes
Litigation Basics
March 3, 2010
NEWS
-Bring resumes tomorrow for Law Dawgs Career Day
-Mediation Briefs due tomorrow
-Guest Speaker tonight
--------------------------------------------
Federal e-Discovery Rules
Greg Shelton
Senior Legal Counsel, Physio-Control, Redmond
Shelton started working on electronic discovery projects at Skadden Arps, the biggest law firm in New York City, eleven years ago, when e-discovery was in its infancy. He moved to Seattle four years ago and developed an electronically stored information legal consulting practice within Williams Kastner, where he assisted companies with litigation preparedness, information management, and responding to litigation/investigation requests. Shelton now works as an in-house attorney at Physio-Control in Redmond. He has numerous publications on electronic discovery and is a sought-after local speaker on the topic.
Certificate in Electronic Discovery Management
http://www.extension.washington.edu/ext/certificates/edm/edm_gen.asp
Slides from the lecture:
http://www.soulee.net/Paralegal/Don%27t%20Let%20the%20Terabyte%20You.pdf
http://www.soulee.net/Paralegal/Federal%20e-Discovery%20Rules.pdf
They're also on the front page of the Google Groups in the Files section.
http://groups.google.com/group/uwparalegal/web/Don%27t%20Let%20the%20...
http://uwparalegal.googlegroups.com/web/Federal+e-Discovery+Rules.pdf...
--------------------------------------------------------
Records Management Program
-identify and control records to protect business interests
-reduce burden, cost and risk of maintaining records
-destroy documents that have no legitimate business interest
-companies keep too much emails
-means lawyers push to get all that information
1 terabyte: 500 boxes of documents
Legal Hold
-policy must be suspended when the company "reasonably anticipates" a claim, investigation, or litigation
-applies to both sides
-assume that what you destroyed was relevant to the case and was harmful to the defendant
Civil Rules
-amendments for e-discovery came in 2006
-started in 1996
-Rules 16, 26-27, 45
-can now inspect computer systems
Dec 1, 2006 in effected
-ESI included mandatory initial disclosures
-Counsel required to discuss ESI at initial pre-trial conference
-Encourage early cooperation of counsel
-empower courts to incorporate agreements in CMO
-limited protection from production for ESI
-address inadvertent production
-protection from sanctions from deletion/loss in regular course of business
-safe harbor from sanctions (only relates to rule 37)
-do not have to produce unduly burdensome items
(old systems, electron microscopes necessary)
-easier to turn over documents you don't want to turn over
-run a script to find the documents
Methods of searching
-keywords searching
-concept searching (algorithms)
Federal rule 502
-inadvertent production
-w/ reasonable steps to stop and return, you can get them back
-took out subject matter waiver
New Terminology
-Electronically Store Information
-not defined in new rules
-flexible enough to encompass future changes and developments
-update boilerplate document requests and interrogatories
Rule 1. Scope and Purpose
-These rules govern and procedure in all civil actions
-construct just, speedy, and inexpensive
Early Attention to e discovery
Rule 16, 26(a) and 26(f) impose obligations on parties and court
-Rule 16
-permits courts to deal with e discovery in scheduling orders
-permits courts to incorporate agreements regarding inadvertent production
-mandates a conference in Federal Court
-no mandate in WA
-purposes are in line with Rule 1
-allows judge to take control of management
-discourages wasteful pretrial activities
-improves the quality of the trial
-facilitates settlement
-scheduling order must be issued 90-120 days
-provide for discovery of ESI
-adopt a party agreements about privilege
Rule 26(a)
-requires parties to disclose a copy of or a description of ESI
-and tangible things in possession and custody and control
Rule 26(f)
-preservation of evidence
-21 days before rule 16 conference
-parties must consider
-nature and basis of claims
-settlement
-26(a) disclosures
-discovery plan
-ESI, including form of production
-issues about privilege
-clawback agreement
-limitations on discovery
-need to bring IT personnel with you to the conference or learn it yourself
CR34: requests for production
-if they don't have the information subpoena CR45
-happens a lot since they are third parties that hold the information
-for access to servers and information
Inspections and Sampling
-test or sample any designated documents, ESI
-not an effective discovery tool
-disruptive, requesting party not familiar with system, encroaches on protections
-you send your IT person to look at their system
-they don't like that due to hacking and what occurs in that
-not meant to be routine
-Manual for Complex Litigation
4th Sec. 11.446; compromises privilege, trade secrets
Form of Production
-the way it is maintained
-"form on forms in which ESI is to be produced
-producing party can object must specify form it intends to use
-requesting party can them move under rule 37(a)
-agree during 26(f) conference and avoid the issue
.tiff and .pdf seem to be the preferred handling
-accompanied with the data file
-native files
-come in their true format like .doc or .sql
-editable so things can change in them
-metadata comes with all that but can easily be adjusted
-just hash it
-hashing puts a computerized tag on it that shows alterations
-use depends on how tech savvy you are
-always be sure to encrypt and delete privileged information and alter .jpg/.tiff files
Two-tiered discovery
-Rule 26(b): court may limit frequency & extent
-court must limit frequency and extent if a burden
-26(b)(2)(B) allows a party to withhold info it identifies as not reasonably accessable because of undue burden of costs
-disaster recovery back up tapes
-must be disclosed in sufficient detail to evaluate burden v. benefit
-IT staff should be prepared to justify withholding information
Balancing test-CR26(b)(2)(B)
-how clear you are in your request
-importance and useful information
-resources available
Aubuchon v. BeneFirst (D. Mass. 2007)
-medical bills were not reasonably accessible
-court undertook good cause analysis
-benefirst must produce the request due to their sloppy filing
-made this mess, you must fix it
Capitol Records v. MP3Tunes (SDNY, Aug. 13, 2009)
-2 terabytes of data on their servers no e discovery software
-burdensome relied on Aubuchon to conclude data is not reasonably accessible
-made this mess but not make you fix it (figure it out and share costs)
Petcou v. CH Robinson Worldwide
-all docs relating to porn on the computer
-not reasonably accessible
-deleted email is around for 8 days, 10 days after employee leaves
-back up tapes exchanges every 3-5
would costs $80,000 to get information
-No good cause
-rightfully deleted information
Cost Shifting
-cost may be shifted to requesting party if source is not reasonably accessible
-requesting party: share or bear costs
-responding party: costs related to review
-usually look at the balancing test
-there is a lot of looking at other cases to make a decision
Privilege and Work Product
-26(b)(5)(B)
-formalizes procedures
-if docs are inadvertently produced and notify for basis of privileged
-if disclosed must take steps to retrieve
-must work promptly to get this information
Privilege
-rule 26 does not modify substantive law waiver
evidence rule 502
-articulates test for determining extent of waiver inadvertent production not a waiver
-selective waiver
-court ordered non waiver
-need to look at state rules because things differ greatly
-not limited to ESI
-early agreements on dealing with inadvertent production can be critical
-judge can enter them in pretrial order
-consider clawbacks and quick peeks
-privilege logs
Rule 45
-used to compel discovery from non parties
-subpoena ad testificandum
-subpoena duce tecum
-clerk of court or attorney must issue
-certain rules in place to protect non party
-issuer must avoid imposing any costs
-objections before time for compliance or 14 days
-serving party may move to compel
Protections
-quashing modifications required
-quashing modification permitted
-seeks information privileged
Duties
-very similar to 34
-ESI as ordinarily maintained
-same ESI need not be in different format
-privilege still applies
two tiered production
-documents readily available
-not reasonably accessible information
Depositions
-with ESI, the IT people are getting called in for depositions
-"discovery on discovery"
-CR 30(b)(6) depose an entity, usually an IT person, designate topics with particularity
-becoming common
Protective Orders Rule 26
-Compelling Rule 37
Rule 37 says now:
-didn't give it in time can't use it yourself
-can't put sanctions on ESI info found later that was deleted routinely or an unforeseen problem
-daily use of computers, email janitors, programming
-protects entities that peer to peer (good faith operation)
-the inability to produce what the other side thinks you should have
March 3, 2010
NEWS
-Bring resumes tomorrow for Law Dawgs Career Day
-Mediation Briefs due tomorrow
-Guest Speaker tonight
--------------------------------------------
Federal e-Discovery Rules
Greg Shelton
Senior Legal Counsel, Physio-Control, Redmond
Shelton started working on electronic discovery projects at Skadden Arps, the biggest law firm in New York City, eleven years ago, when e-discovery was in its infancy. He moved to Seattle four years ago and developed an electronically stored information legal consulting practice within Williams Kastner, where he assisted companies with litigation preparedness, information management, and responding to litigation/investigation requests. Shelton now works as an in-house attorney at Physio-Control in Redmond. He has numerous publications on electronic discovery and is a sought-after local speaker on the topic.
Certificate in Electronic Discovery Management
http://www.extension.washington.edu/ext/certificates/edm/edm_gen.asp
Slides from the lecture:
http://www.soulee.net/Paralegal/Don%27t%20Let%20the%20Terabyte%20You.pdf
http://www.soulee.net/Paralegal/Federal%20e-Discovery%20Rules.pdf
They're also on the front page of the Google Groups in the Files section.
http://groups.google.com/group/uwparalegal/web/Don%27t%20Let%20the%20...
http://uwparalegal.googlegroups.com/web/Federal+e-Discovery+Rules.pdf...
--------------------------------------------------------
Records Management Program
-identify and control records to protect business interests
-reduce burden, cost and risk of maintaining records
-destroy documents that have no legitimate business interest
-companies keep too much emails
-means lawyers push to get all that information
1 terabyte: 500 boxes of documents
Legal Hold
-policy must be suspended when the company "reasonably anticipates" a claim, investigation, or litigation
-applies to both sides
-assume that what you destroyed was relevant to the case and was harmful to the defendant
Civil Rules
-amendments for e-discovery came in 2006
-started in 1996
-Rules 16, 26-27, 45
-can now inspect computer systems
Dec 1, 2006 in effected
-ESI included mandatory initial disclosures
-Counsel required to discuss ESI at initial pre-trial conference
-Encourage early cooperation of counsel
-empower courts to incorporate agreements in CMO
-limited protection from production for ESI
-address inadvertent production
-protection from sanctions from deletion/loss in regular course of business
-safe harbor from sanctions (only relates to rule 37)
-do not have to produce unduly burdensome items
(old systems, electron microscopes necessary)
-easier to turn over documents you don't want to turn over
-run a script to find the documents
Methods of searching
-keywords searching
-concept searching (algorithms)
Federal rule 502
-inadvertent production
-w/ reasonable steps to stop and return, you can get them back
-took out subject matter waiver
New Terminology
-Electronically Store Information
-not defined in new rules
-flexible enough to encompass future changes and developments
-update boilerplate document requests and interrogatories
Rule 1. Scope and Purpose
-These rules govern and procedure in all civil actions
-construct just, speedy, and inexpensive
Early Attention to e discovery
Rule 16, 26(a) and 26(f) impose obligations on parties and court
-Rule 16
-permits courts to deal with e discovery in scheduling orders
-permits courts to incorporate agreements regarding inadvertent production
-mandates a conference in Federal Court
-no mandate in WA
-purposes are in line with Rule 1
-allows judge to take control of management
-discourages wasteful pretrial activities
-improves the quality of the trial
-facilitates settlement
-scheduling order must be issued 90-120 days
-provide for discovery of ESI
-adopt a party agreements about privilege
Rule 26(a)
-requires parties to disclose a copy of or a description of ESI
-and tangible things in possession and custody and control
Rule 26(f)
-preservation of evidence
-21 days before rule 16 conference
-parties must consider
-nature and basis of claims
-settlement
-26(a) disclosures
-discovery plan
-ESI, including form of production
-issues about privilege
-clawback agreement
-limitations on discovery
-need to bring IT personnel with you to the conference or learn it yourself
CR34: requests for production
-if they don't have the information subpoena CR45
-happens a lot since they are third parties that hold the information
-for access to servers and information
Inspections and Sampling
-test or sample any designated documents, ESI
-not an effective discovery tool
-disruptive, requesting party not familiar with system, encroaches on protections
-you send your IT person to look at their system
-they don't like that due to hacking and what occurs in that
-not meant to be routine
-Manual for Complex Litigation
4th Sec. 11.446; compromises privilege, trade secrets
Form of Production
-the way it is maintained
-"form on forms in which ESI is to be produced
-producing party can object must specify form it intends to use
-requesting party can them move under rule 37(a)
-agree during 26(f) conference and avoid the issue
.tiff and .pdf seem to be the preferred handling
-accompanied with the data file
-native files
-come in their true format like .doc or .sql
-editable so things can change in them
-metadata comes with all that but can easily be adjusted
-just hash it
-hashing puts a computerized tag on it that shows alterations
-use depends on how tech savvy you are
-always be sure to encrypt and delete privileged information and alter .jpg/.tiff files
Two-tiered discovery
-Rule 26(b): court may limit frequency & extent
-court must limit frequency and extent if a burden
-26(b)(2)(B) allows a party to withhold info it identifies as not reasonably accessable because of undue burden of costs
-disaster recovery back up tapes
-must be disclosed in sufficient detail to evaluate burden v. benefit
-IT staff should be prepared to justify withholding information
Balancing test-CR26(b)(2)(B)
-how clear you are in your request
-importance and useful information
-resources available
Aubuchon v. BeneFirst (D. Mass. 2007)
-medical bills were not reasonably accessible
-court undertook good cause analysis
-benefirst must produce the request due to their sloppy filing
-made this mess, you must fix it
Capitol Records v. MP3Tunes (SDNY, Aug. 13, 2009)
-2 terabytes of data on their servers no e discovery software
-burdensome relied on Aubuchon to conclude data is not reasonably accessible
-made this mess but not make you fix it (figure it out and share costs)
Petcou v. CH Robinson Worldwide
-all docs relating to porn on the computer
-not reasonably accessible
-deleted email is around for 8 days, 10 days after employee leaves
-back up tapes exchanges every 3-5
would costs $80,000 to get information
-No good cause
-rightfully deleted information
Cost Shifting
-cost may be shifted to requesting party if source is not reasonably accessible
-requesting party: share or bear costs
-responding party: costs related to review
-usually look at the balancing test
-there is a lot of looking at other cases to make a decision
Privilege and Work Product
-26(b)(5)(B)
-formalizes procedures
-if docs are inadvertently produced and notify for basis of privileged
-if disclosed must take steps to retrieve
-must work promptly to get this information
Privilege
-rule 26 does not modify substantive law waiver
evidence rule 502
-articulates test for determining extent of waiver inadvertent production not a waiver
-selective waiver
-court ordered non waiver
-need to look at state rules because things differ greatly
-not limited to ESI
-early agreements on dealing with inadvertent production can be critical
-judge can enter them in pretrial order
-consider clawbacks and quick peeks
-privilege logs
Rule 45
-used to compel discovery from non parties
-subpoena ad testificandum
-subpoena duce tecum
-clerk of court or attorney must issue
-certain rules in place to protect non party
-issuer must avoid imposing any costs
-objections before time for compliance or 14 days
-serving party may move to compel
Protections
-quashing modifications required
-quashing modification permitted
-seeks information privileged
Duties
-very similar to 34
-ESI as ordinarily maintained
-same ESI need not be in different format
-privilege still applies
two tiered production
-documents readily available
-not reasonably accessible information
Depositions
-with ESI, the IT people are getting called in for depositions
-"discovery on discovery"
-CR 30(b)(6) depose an entity, usually an IT person, designate topics with particularity
-becoming common
Protective Orders Rule 26
-Compelling Rule 37
Rule 37 says now:
-didn't give it in time can't use it yourself
-can't put sanctions on ESI info found later that was deleted routinely or an unforeseen problem
-daily use of computers, email janitors, programming
-protects entities that peer to peer (good faith operation)
-the inability to produce what the other side thinks you should have
March 2nd Notes
Litigation Basics
March 2, 2010
NEWS
Job Opportunities
Stephanie Seigle from "Homecoming" called me to let you know there are 3 openings at her firm (Stoel Rives). Go to: http://www.stoel.com/staffopenings.aspx
Tomorrow: ESI Lecture
Thursday: Law Dawgs Career Fair (bring resumes)
Tuesday: Review Night
Wednesday: Open Study
Thursday: Final
-----------------------------------------------------------
Chapter 16
Post trial Motions
Motion for a New Trial
-Rule 59 allows dissatisfied party to file a motion asking for new trial
-The court may grant a new trial on the grounds
1. verdict was contrary to law
2. verdict was totally defective
3. irregularity in the court proceedings
4. excessive or insufficient damage awards
5. jury misconduct
6. newly discovered evidence (show it was not available at trial and will change the outcome)
-must be filed with the court within 10 days of the entry of judgment
-some states allow a longer period of time
Preliminary Steps in the Appeal
-without appeal there are no checks on the legal decision making of the trial courts
-the clerk supervises the preparation of the court record for an appeal, forms to lawyers, and copies of local rules
-expensive, time consuming and usually does not help
appeal
-asking a higher court to review the actions of a lower court in order to correct mistakes or injustice
appellant
-the person who appeals a case to a higher court, not necessarily the losing party
appellee
-the person against whom an appeal is taken
cross-appeal
-an appeal by the appelle
pro-se
-a person representing himself or herself (as defendant or plaintiff) without a lawyer in a court proceeding (whether the matter is civil or criminal)
Preliminary Steps in an Appellate Procedures
1. notice of appeal
2. bond for costs or supersedeas bonds
3. transcript order and preparation of pertinent record sections
4. filing of briefs of both parties
Notice of Appeal
-a document filed with an appellate court and served on the opposing party, giving notice of an intention to appeal
-must be filed with the clerk of the district court from which the appeal is taken within 30 days after the entry of the judgment
-Rule 4 notice of appeal must be filed within 60 days after entry of judgment of the order
-Rule 12 requires the attorney who filed the notice of appeal must within 10 days after filling the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal
-appellate pays 2 docketing fees to the clerk
-clerk of the district court is required to serve notice by mail
Appeal Bond
2 types of bonds
1. supersedas bond
-a bond put up by a person who appeals a judgment
-is a judge's order that temporarily holds up another court's proceedings or temporarily stays a lower court's judgment
-bond delays the person's obligation to pay the judgment until the appeal is lost
-to collect on the judgment now
2. Appeal bond
-covers the cost of the appeal, usually a smaller bond
-if you lose, you pay the costs incurred by the other side
-Rule 7 require appellant to file a bond
Ordering Transcript
-Rule 10(b) within 10 days of filing the notice for appeal the appellant is responsible for making a written request on a form from the clerk for transcripts
-usually is 90 days in reality
-Responsibilities of Appellant and Appellee
--Rule 10(b) if the entire transcript is not included on the appeal, the appellant in 10 days must file a statement of issues that will be presented
-Responsibilities of the Court Reporter
--Rule 11(b) court recorder acknowledge receipt of the order for the transcript, has 30 days after receipt to notify the clerk of appeals of the filing
-Responsibilities of the Paralegal
--maintain close contact with the court reporter to make sure of the timely filing of the transcript
Transmitting the Record
-arranging chronological order of the papers field with the district court and numbering and indexing
-done in 15 days of filing notice of appeal or filing of the transcript
-parties may stipulate that the district clerk retain the record temporarily for the parties use in preparation of the appeal
Enlargement of Time
motion for enlargement of time
-motion requesting additional time for an appeal including the reasons that the additional time is needed and the number of days needed
The Appellate Brief
-must have a clear issue of law
-there must be a clear statement of facts
Drafting the Appellate Brief
amicus curiae
-a person allowed to give argument in a lawsuit who is not a party of the lawsuit
-particularly the supreme court
-to inform the court of the issues
-Format of the Brief
-a brief submitted under Rule 28.1(e) includes certificate by an attorney that the brief compiles with the types volume limitation
-Researching the Brief
-Drafting the Statement of Facts
Appellant, Appellee, and Reply Briefs
-Appellant's Brief
-brief of the person bringing the appeal
1. disclosure statement
2. table of contents
3. table of cases in alphabetical order
4. statement regarding oral argument
5. statement of jurisdiction
6. statement of issues
7. statement on case
8. statement of facts on legal issues
-file an appendix
1. docket entries
2. pleadings, charge, findings or opinions
3. judgment, order, decision
4. any other records
-10 copies of the appendix must be filed with the clerk
-Rule 30(d) arrangement of the appendix
1. table of contents
2. relevant dockets
3. record in chronological order
-4 copies of exhibits volume filed and served
-Appellee's Brief
-brief of the person who opposes an appeal
-all the same requirements as the other brief
-does not require
1. jurisdictional statement
2. statement of issues
3. statement of facts
4. statement of case
5. statement of the standard of review
-Reply Brief
Rule 28(c) the appellee may also file a cross-appeal
-files a cross-appeal the appellant will file a brief in response to the issues presented in the cross appeal
Filing and Service of Appellate Briefs
-Rule 31 the appellant must file and serve its brief in 40 days after the date on which the record is filed
-appellee has 30 days after service to file and serve its brief
-Rule 31(a) reply is due 14 days after service after service of the appelle's brief
-needs 25 copies of each brief (could be 6 with 2 original, 2 cross, 2 replies)
Coordinating the Oral Argument
oral argument
-the presentation of each side of a case before an appeals court, the presentation typically involves oral statements by a lawyer interrupted by questions from the judge
excludes oral argument if
1. appeal is frivolous
2. dispositive issues have been decided
3. briefs and records present facts and legal arguments
Preparing for the Oral Argument
-Outline of the Argument
-Research Notebook for Justices
-usually just cases for the justices to read
-good for out of state cases
-Delivery of the Exhibits to Court
-the ones that are evidence and submitted
Assisting at Oral Argument
Final Procedures
Further Appeal Procedures
petition for rehearing
-request that a higher court decision be reviewed
-14 days
-Rule 32 unless the court permits local rules
petition for certiorari
-request for a rehearing before the US Supreme Court
Posstrial Judgment Procedures
judgment creditor
-party seeking to execute on the judgment
-statutory remedies allow for executions of a judgment within 30 days after the entry of judgment
judgment debtor
-party who must pay the judgment
Getting the other side to pay out
1. Levy the assets
-do an assets check
-hire an PI to find assets
-attaching assets
2. Postjudgment interrogatories
-are written questions that the judgment debtor must answer in writing about his assets
If they refuse to answer interrogatories you can:
post judgment deposition (debtor exam)
-sending the opposition a notice of intent to take oral deposition by nonstenographic means
-bring them into court and under oath get answers about their assets
-can ask them about anything
-Rule 69(b)
-can start taking after 10 days
writ of execution
-court order compelling the seizure of the judgment debtor's property to satisfy the judgment
-personal property is seized and sold before real property is subject to seizure
-after the auction is held and the debt satisfied any remaining goes to the debtor
2 reasons why
1. Easier to transfer the personal property
2. trying not to inconvenience the debtor, want to find an alternative rather than take the house
If you do not seize property you can garnish:
post trial garnishment
-separate but ancillary lawsuit filed in the court that rendered the judgment
-means seizing any assets of the debtor held in the hands of a third party
-can be applied to your salary not limited to though
-can seize up to 25% of the gross salary
-the garnishee is the third party who has the money they give to the debtor
-so garnishment is against them, the ones holding the assets
garnishment
-brought against a third party garnishee that is holding assets belonging to the judgment debtor
Chapter 16 Review Questions
1. What is a motion for judgment as a matter of law?
2. What is a motion for a new trial?
3. What is an appeal?
4. Who are the parties to an appeal?
5. What is a supersedas bond? What is its purpose?
6. List and define 4 types of appellate briefs.
7. What duties does the paralegal have in relation to oral arguments?
8. What postjudgment discovery devices are available to a judgment creditor?
9. What is a petition for certiorari?
10. What posttrial judgment procedures are available to collect a judgment?
March 2, 2010
NEWS
Job Opportunities
Stephanie Seigle from "Homecoming" called me to let you know there are 3 openings at her firm (Stoel Rives). Go to: http://www.stoel.com/staffopenings.aspx
Tomorrow: ESI Lecture
Thursday: Law Dawgs Career Fair (bring resumes)
Tuesday: Review Night
Wednesday: Open Study
Thursday: Final
-----------------------------------------------------------
Chapter 16
Post trial Motions
Motion for a New Trial
-Rule 59 allows dissatisfied party to file a motion asking for new trial
-The court may grant a new trial on the grounds
1. verdict was contrary to law
2. verdict was totally defective
3. irregularity in the court proceedings
4. excessive or insufficient damage awards
5. jury misconduct
6. newly discovered evidence (show it was not available at trial and will change the outcome)
-must be filed with the court within 10 days of the entry of judgment
-some states allow a longer period of time
Preliminary Steps in the Appeal
-without appeal there are no checks on the legal decision making of the trial courts
-the clerk supervises the preparation of the court record for an appeal, forms to lawyers, and copies of local rules
-expensive, time consuming and usually does not help
appeal
-asking a higher court to review the actions of a lower court in order to correct mistakes or injustice
appellant
-the person who appeals a case to a higher court, not necessarily the losing party
appellee
-the person against whom an appeal is taken
cross-appeal
-an appeal by the appelle
pro-se
-a person representing himself or herself (as defendant or plaintiff) without a lawyer in a court proceeding (whether the matter is civil or criminal)
Preliminary Steps in an Appellate Procedures
1. notice of appeal
2. bond for costs or supersedeas bonds
3. transcript order and preparation of pertinent record sections
4. filing of briefs of both parties
Notice of Appeal
-a document filed with an appellate court and served on the opposing party, giving notice of an intention to appeal
-must be filed with the clerk of the district court from which the appeal is taken within 30 days after the entry of the judgment
-Rule 4 notice of appeal must be filed within 60 days after entry of judgment of the order
-Rule 12 requires the attorney who filed the notice of appeal must within 10 days after filling the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal
-appellate pays 2 docketing fees to the clerk
-clerk of the district court is required to serve notice by mail
Appeal Bond
2 types of bonds
1. supersedas bond
-a bond put up by a person who appeals a judgment
-is a judge's order that temporarily holds up another court's proceedings or temporarily stays a lower court's judgment
-bond delays the person's obligation to pay the judgment until the appeal is lost
-to collect on the judgment now
2. Appeal bond
-covers the cost of the appeal, usually a smaller bond
-if you lose, you pay the costs incurred by the other side
-Rule 7 require appellant to file a bond
Ordering Transcript
-Rule 10(b) within 10 days of filing the notice for appeal the appellant is responsible for making a written request on a form from the clerk for transcripts
-usually is 90 days in reality
-Responsibilities of Appellant and Appellee
--Rule 10(b) if the entire transcript is not included on the appeal, the appellant in 10 days must file a statement of issues that will be presented
-Responsibilities of the Court Reporter
--Rule 11(b) court recorder acknowledge receipt of the order for the transcript, has 30 days after receipt to notify the clerk of appeals of the filing
-Responsibilities of the Paralegal
--maintain close contact with the court reporter to make sure of the timely filing of the transcript
Transmitting the Record
-arranging chronological order of the papers field with the district court and numbering and indexing
-done in 15 days of filing notice of appeal or filing of the transcript
-parties may stipulate that the district clerk retain the record temporarily for the parties use in preparation of the appeal
Enlargement of Time
motion for enlargement of time
-motion requesting additional time for an appeal including the reasons that the additional time is needed and the number of days needed
The Appellate Brief
-must have a clear issue of law
-there must be a clear statement of facts
Drafting the Appellate Brief
amicus curiae
-a person allowed to give argument in a lawsuit who is not a party of the lawsuit
-particularly the supreme court
-to inform the court of the issues
-Format of the Brief
-a brief submitted under Rule 28.1(e) includes certificate by an attorney that the brief compiles with the types volume limitation
-Researching the Brief
-Drafting the Statement of Facts
Appellant, Appellee, and Reply Briefs
-Appellant's Brief
-brief of the person bringing the appeal
1. disclosure statement
2. table of contents
3. table of cases in alphabetical order
4. statement regarding oral argument
5. statement of jurisdiction
6. statement of issues
7. statement on case
8. statement of facts on legal issues
-file an appendix
1. docket entries
2. pleadings, charge, findings or opinions
3. judgment, order, decision
4. any other records
-10 copies of the appendix must be filed with the clerk
-Rule 30(d) arrangement of the appendix
1. table of contents
2. relevant dockets
3. record in chronological order
-4 copies of exhibits volume filed and served
-Appellee's Brief
-brief of the person who opposes an appeal
-all the same requirements as the other brief
-does not require
1. jurisdictional statement
2. statement of issues
3. statement of facts
4. statement of case
5. statement of the standard of review
-Reply Brief
Rule 28(c) the appellee may also file a cross-appeal
-files a cross-appeal the appellant will file a brief in response to the issues presented in the cross appeal
Filing and Service of Appellate Briefs
-Rule 31 the appellant must file and serve its brief in 40 days after the date on which the record is filed
-appellee has 30 days after service to file and serve its brief
-Rule 31(a) reply is due 14 days after service after service of the appelle's brief
-needs 25 copies of each brief (could be 6 with 2 original, 2 cross, 2 replies)
Coordinating the Oral Argument
oral argument
-the presentation of each side of a case before an appeals court, the presentation typically involves oral statements by a lawyer interrupted by questions from the judge
excludes oral argument if
1. appeal is frivolous
2. dispositive issues have been decided
3. briefs and records present facts and legal arguments
Preparing for the Oral Argument
-Outline of the Argument
-Research Notebook for Justices
-usually just cases for the justices to read
-good for out of state cases
-Delivery of the Exhibits to Court
-the ones that are evidence and submitted
Assisting at Oral Argument
Final Procedures
Further Appeal Procedures
petition for rehearing
-request that a higher court decision be reviewed
-14 days
-Rule 32 unless the court permits local rules
petition for certiorari
-request for a rehearing before the US Supreme Court
Posstrial Judgment Procedures
judgment creditor
-party seeking to execute on the judgment
-statutory remedies allow for executions of a judgment within 30 days after the entry of judgment
judgment debtor
-party who must pay the judgment
Getting the other side to pay out
1. Levy the assets
-do an assets check
-hire an PI to find assets
-attaching assets
2. Postjudgment interrogatories
-are written questions that the judgment debtor must answer in writing about his assets
If they refuse to answer interrogatories you can:
post judgment deposition (debtor exam)
-sending the opposition a notice of intent to take oral deposition by nonstenographic means
-bring them into court and under oath get answers about their assets
-can ask them about anything
-Rule 69(b)
-can start taking after 10 days
writ of execution
-court order compelling the seizure of the judgment debtor's property to satisfy the judgment
-personal property is seized and sold before real property is subject to seizure
-after the auction is held and the debt satisfied any remaining goes to the debtor
2 reasons why
1. Easier to transfer the personal property
2. trying not to inconvenience the debtor, want to find an alternative rather than take the house
If you do not seize property you can garnish:
post trial garnishment
-separate but ancillary lawsuit filed in the court that rendered the judgment
-means seizing any assets of the debtor held in the hands of a third party
-can be applied to your salary not limited to though
-can seize up to 25% of the gross salary
-the garnishee is the third party who has the money they give to the debtor
-so garnishment is against them, the ones holding the assets
garnishment
-brought against a third party garnishee that is holding assets belonging to the judgment debtor
Chapter 16 Review Questions
1. What is a motion for judgment as a matter of law?
2. What is a motion for a new trial?
3. What is an appeal?
4. Who are the parties to an appeal?
5. What is a supersedas bond? What is its purpose?
6. List and define 4 types of appellate briefs.
7. What duties does the paralegal have in relation to oral arguments?
8. What postjudgment discovery devices are available to a judgment creditor?
9. What is a petition for certiorari?
10. What posttrial judgment procedures are available to collect a judgment?
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