Complex Litigation
April 28, 2010
NEWS
-pick up take-home midterm
-should only take 3 hours
-remember to apply the knowledge, not the amount of law
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Remedies
-Legal ($)
-Equitable
Interests
-Expectation: "Benefits of the Bargain"
-Reliance: Losses from changing position
-Restitution: Return of enrichment conferred
Limitations
-Reasonable Certainty
-Foreseeability
-Mitigation
-No "improvement" over performance
Liquid Damages
1. Reasonable amount and
2. Actual damages difficult to calculate
"Courtney" "Leigh" "Joan"
Paid $20,000 $20,000 $20,000
Value $10,000 $20,000 $20,000
Represented $50,000 $25,000 $10,000 (but will increase)
Expectation: $30,000 $5,000 $0
r-p
Reliance: $10,000 $0 $0
p-v
Restitution: $20,000 $20,000 $20,000
p
-only can collect damages that are reasonable to occur
-must be foreseeable at the time of the breech
-Hadley v. Baxendale (1854)
-mill broke, lost order that suddenly came in but fixer was not liable for it since it was not foreseeable
-mitigation: must take steps to minimize damages
Equitable Remedies
-Specific Performance
-Injunctions (CR65)
-Rescission
-Reformation (Scrivener's error)
-Restitution (see "Interests")
Freedom of Speech
Justice Hugo Black: 1937 appointed FDR
-you can say anything free of constitutional interference
-civil libertarian
-took it literally
-All other justices interpret that differently
-congress shall not make any law abridging the freedom of speech
Classic Exceptions of the Freedom of Speech
(1, 2, 3 tested on)
1. Clear and present danger
-added "inciting immanent lawless action" (1969)
Schenck v. US (1919)
-advocating young men should not register for the draft WWI
-Holmes said the freedom of speech does not give the right to say "Fire" in a theater
Brandenburg v. Ohio (1969)
-what constitutes clear and present danger
-addendum to definition
2. "Fighting Words"
-by their very utterance inflict injury, different for everyone
-broader than racial slurs, visceral response, not mere insults
-must be personally directed to you, not the group you are in
-most usually say it didn't reach that level
Chaplinksy v. New Hampshire (1942)
-called government official a fascist, upheld
Lewis v. New Orleans (1974)
-curse to police officer, profanity does not equal "fighting words", upheld
Gooding v. Wilson (1972)
-threat to kill a police officer, the threat itself is not "fighting words", upheld
Cohen v. California (1971)
-Landmark Case
-jacket said "fuck the draft", upheld
-not fighting words Holmes: "we are often captives outside the sanctity of the home"
3. Obscenity
-defining it is difficult
-words, pictures, themes
-not all obscenity is pornography, not all pornography is obscene
Jacobellis v. Ohio (1964)
-Stewart "I can't define it but I know it when I see it"
-absurd definition
Miller v. California (1973)
-L.A.P.S. test
-literary, artistic, political, scientific value is obscene
-needs some value in it
-the reason why porn has warnings previous to viewing to avoid obscenity
New York v. Ferber (1982)
-child pornography is obscene deemed by Supreme Court
4. False Advertising
Valentine v. Christensen (1942)
-no right to disparage products
5. Defamation
NY Times v. Sullivan (1964)
-higher standard in defamation in public figures
6. Compelling Governmental Interest
-if they have a compelling reason, not just important to do so
-judges can impose gag orders with this
-anything that harms the 6th amendment (trial by jury)
-speedy and public trial by impartial jury
-6th amendment usurps usually
Key Concepts of how Freedom of Speech Cases are Judged
1. Void for vagueness
-any law that violates speech with vagueness
-Aggressive panhandling
-law against offending passersby
2. Void for overbreadth
-restrict more than necessary
3. Prior restraints
-stop before it is uttered
-censorship
-are presumptively unconstitutional
NY Times v. US (1971)
-were going to publish forms from Vietnam War but waited for the clear
Types of Prior Restraints:
1. Injunction
-on a book
2. Permit Process
-stopping speeches, parades
3. Licensing
-FCC limits TV, radio
4. Censorship
-Carlin's 7 dirty words
National Socialist Party v. Skokie (1977)
-Nazi's wants parade in Jewish community
-denied permit for parade on grounds of potential riots
-Supreme Court says, let them march
4. Symbolic Speech
-action, message through speech
-burning bras, flags, hanging effigy
All three speeches protected
-pure speech: the court is less likely to interfere
-speech plus: coupled with an action the government is free to regulate
-symbolic speech: no verbal component gets the most regulation
Stromberg v. California (1931)
-raised a red flag everyday, did not lecture about socialism
Boston Tea Party
-12/16/1773
-all conduct, no speech
Texas v. Johnson (1989)
-is burning the flag allowed
-majority said it was protected
-congress can pass a law against it but it's still unconstitutional
5. Traditional Forums
-where the speech is uttered
-areas where the site is known for free speech main square, streets, gathering places
-these get higher protection
6. Police Powers
-protection of the public
-time, place, manner of speech
Edwards v. South Carolina (1963)
-civil rights protest
-singing the Star-Spangled Banner in a parade
-brings in elements from all areas
Wednesday, April 28, 2010
April 27th Notes
Family Law
April 27, 2010
-make up class next week
-keep checking the page
-now till the end of the quarter
Parenting Plan
-filed with petition for dissolution
-but under separate petition
Who submits a parenting plan?
RCW 26.09.181
either or both
failure to submit by one causes court to adopt the one submitted
What must a parenting plan contain?
RCW 26.09.184
-residential plan for children
-allocate decision making authority
-dispute resolution process
not just court
in good faith
-do not use children
What else can it contain?
-designation of the placement parent
-anything else important to the parents
What specific language must the permanent plan include?
RCW 26.09.165
warning violation of the residential provisions of this order with actual knowledge of its terms is punishable by contempt of court and may be a criminal offense under RCW 9A.40.0060(2) or 9A.40.070(2) violation of this order may subject violator to arrest
What are the objectives of a parenting plan?
RCW 26.09.184(1)
physical care
emotional care
changing needs
authority and responsibility of each parent
minimize harmful exposure
encourage parents to meet obligation without court intervention
Best Interest of the children
Proposed plan submission
-before earliest date of
--30 days after notice for trial filed and served
--180 days after commencement of action, can be extended by stipulation
Default party filing prooposed plan in compliance with RCW 26.09.181
can be amended
Parenting Plan
working document
-to follow for the future
-easy to read and understand
-draft with care
Forms
mandatory forms
www.courts.wa.gov/forms
Issues
encourage continued involvement by both parents if possible
fostering parent-child relationships
best interest of child
frequent alternation of child residence for brief periods despite providing equal time is disfavored
-no mutual decision making or limitation on residential time with child if parent:
-willfully abandoning child for extended period of time
-refused to perform as a parent
-physically, sexually, emotional abused as a child
-engaged in domestic violence
-convicted as a an adult or sexual offenses or resides with another adult that is a sex offender
issues
-court has broad discretion to limit any plan provisions
if needed court may appoint guardian ad litem or plan evaluator
-CASA Court Appointed Special Advocate
-not paid
UCCJEA
-RCW 26.27
-no forum shopping
residential provisions factors
-best interst of child control
Practicalities
-provisions should not conflict
Tips
-look at guidelines of court
-mid week contacts should be clear as day, time, frequency
-alteration of holidays
-weekends specify pick up and drop off times
-summer vacations
Think about Including
-access to medical/dental records
-extracurricular activities
-participation with schooling and activities
-report cards, pictures
-telephone calls
Decision Making Authority
Remedy for violation of plan
-move for finding contempt
Changing the Plan
-can be modified
-can be self-modifying
Child Support
-RCW 26.09.100(1)
-either or both parents
-mandatory forms must be used
-Washington child support handbook by Halley Hupp
www.courts.wa.gov/ssgen/default.aspx
Can be modified later
-usually significant change
-job changes
-RCW 26.09.100(2)
no mercy about garnishing wages
Can a child support order be self-modifying?
RCW 26.09.100(3)
required forms
child support worksheet
-base
Completing the Forms
-GR 22 & 31
-Parental Income Determination
-must submit
-financial information with sealed cover sheet
Sources not considered
-income of new spouse
-other adults in the house
-gifts, prizes
-public assistance
complete project 4
April 27, 2010
-make up class next week
-keep checking the page
-now till the end of the quarter
Parenting Plan
-filed with petition for dissolution
-but under separate petition
Who submits a parenting plan?
RCW 26.09.181
either or both
failure to submit by one causes court to adopt the one submitted
What must a parenting plan contain?
RCW 26.09.184
-residential plan for children
-allocate decision making authority
-dispute resolution process
not just court
in good faith
-do not use children
What else can it contain?
-designation of the placement parent
-anything else important to the parents
What specific language must the permanent plan include?
RCW 26.09.165
warning violation of the residential provisions of this order with actual knowledge of its terms is punishable by contempt of court and may be a criminal offense under RCW 9A.40.0060(2) or 9A.40.070(2) violation of this order may subject violator to arrest
What are the objectives of a parenting plan?
RCW 26.09.184(1)
physical care
emotional care
changing needs
authority and responsibility of each parent
minimize harmful exposure
encourage parents to meet obligation without court intervention
Best Interest of the children
Proposed plan submission
-before earliest date of
--30 days after notice for trial filed and served
--180 days after commencement of action, can be extended by stipulation
Default party filing prooposed plan in compliance with RCW 26.09.181
can be amended
Parenting Plan
working document
-to follow for the future
-easy to read and understand
-draft with care
Forms
mandatory forms
www.courts.wa.gov/forms
Issues
encourage continued involvement by both parents if possible
fostering parent-child relationships
best interest of child
frequent alternation of child residence for brief periods despite providing equal time is disfavored
-no mutual decision making or limitation on residential time with child if parent:
-willfully abandoning child for extended period of time
-refused to perform as a parent
-physically, sexually, emotional abused as a child
-engaged in domestic violence
-convicted as a an adult or sexual offenses or resides with another adult that is a sex offender
issues
-court has broad discretion to limit any plan provisions
if needed court may appoint guardian ad litem or plan evaluator
-CASA Court Appointed Special Advocate
-not paid
UCCJEA
-RCW 26.27
-no forum shopping
residential provisions factors
-best interst of child control
Practicalities
-provisions should not conflict
Tips
-look at guidelines of court
-mid week contacts should be clear as day, time, frequency
-alteration of holidays
-weekends specify pick up and drop off times
-summer vacations
Think about Including
-access to medical/dental records
-extracurricular activities
-participation with schooling and activities
-report cards, pictures
-telephone calls
Decision Making Authority
Remedy for violation of plan
-move for finding contempt
Changing the Plan
-can be modified
-can be self-modifying
Child Support
-RCW 26.09.100(1)
-either or both parents
-mandatory forms must be used
-Washington child support handbook by Halley Hupp
www.courts.wa.gov/ssgen/default.aspx
Can be modified later
-usually significant change
-job changes
-RCW 26.09.100(2)
no mercy about garnishing wages
Can a child support order be self-modifying?
RCW 26.09.100(3)
required forms
child support worksheet
-base
Completing the Forms
-GR 22 & 31
-Parental Income Determination
-must submit
-financial information with sealed cover sheet
Sources not considered
-income of new spouse
-other adults in the house
-gifts, prizes
-public assistance
complete project 4
Sunday, April 25, 2010
April 22nd Notes
Business Law
April 22, 2010
Conditions
-a condition is an event that must occur before a duty to perform arises or which discharge a duty that have already risen
-created by word, conduct, law
-no special language is necessary to create condition
Third Party Rights
-may have a legal interest in a contract and be able to enforce the contract, if there is:
-beneficiary interest
1. intended: can enforce the contract
2. incidental: can not enforce
-an assignments
-delegation
DIA v. Rose Jr.
Meeting of the minds
Contract should benefit
3rd party beneficiary
-needs to be intended at the time the contract was made
Assignment & Delegation
-A contracting party may transfer his or her rights under a contract – this is an assignment.
-A contracting party may transfer his or her duties under a contract – this is a delegation.
Assignment
A contract must first exist.
There will be an obligor and an obligee.
One of the parties (the obligee) transfers his rights under a contract to a third person.
The person transferring – or assigning – his rights is the assignor.
The person receiving the assignment is the assignee.
The obligor now owes the money to the assignee.
Delegation
A contract must first exist.
There will be an obligor and an obligee.
One of the parties (the obligor) transfers his duties under the contract to a third person.
The person transferring – or delegating – his duties is the delegator.
The person receiving the delegation is the delegatee.
The delegatee now owes the duty to the obligee.
The delegator remains ultimately responsible for the performance under the contract.
Novation
A novation is a three-way agreement in which one party transfers all her rights and duties to a third party.
Both original parties agree to the novation.
Essentially the third party substitutes in for one of the original parties to the contract.
The obligee agrees to look only to the third party for performance.
When does a contract end?
Discharge of Duties
Contractual duties may be discharged by:
Performance of all contractual duties OR
A condition excusing the duty to perform
Agreement
Impossibility of performance
Commercial Impracticability
Performance
With performance, the contract ends when it is fully executed – that is when both parties fully perform their obligations under the contract.
Strict performance
Substantial performance
Personal Satisfaction
In some contracts the performance must be done to the personal subjective satisfaction of the promisee.
Dissatisfaction results in termination of the contract.
In Washington the dissatisfaction must be based on reasonable grounds. Omni Group, Inc. v. Seattle-First Nat’l Bank, 32 Wn. App.22 (1982).
Good Faith
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
Restatement (Second) of Contracts § 205
-insurance contracts
Most contracts end when the performance is done.
Breach
Any failure or refusal to perform a contractual duty constitutes a breach.
When one party breaches a contract, the other party is discharged.
However, courts only discharge (or cancel) a contract if a party has committed a material breach of the contract. (material is a fact)
Anticipatory Repudiation
Occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time of performance.
Must be a positive statement or action indicating distinctly and unequivocally that the repudiating party will not substantially perform.
Discharge by Agreement
Parties can end the contract by agreement through
Rescission
Novation
Accord and satisfaction
Impossibility of Performance
If a party is unable to perform a contract because performance becomes “impossible,” then the performance is excused.
Commercial Impracticality
If circumstances change (that neither party anticipated), leaving one party at a significant commercial disadvantage, that party may be excused from the contract under the theory of commercial impracticality.
If the change could have been foreseen, the court will generally not afford relief.
REMEDIES
Remedies
If one party fails to live up to the terms of the contract, the other party may sue. The remedy is how the court compensates the injured party.
Money damages based on
Expectation of contract performance
Actions taken in reliance on
Performance of the Contract
Rescission and Restitution
Reformation of the Contract
Compensatory Damages
These damages flow directly form the contract – damages that inevitably result from the breach.
Washington law
The general measure of damages:
The injured party is entitled to:
Recover of all damages that accrue naturally from the breach, and
Be put into as good a pecuniary position as he would have had if the contract had been performed.
Diedrick v. School Dist. No. 81, 87 Wn.2d 598 (1976)
Consequential Damages
These are damages that result from the unique circumstances of the injured party.
The injured party must prove that the breaching party had reasonable notice of the special circumstances and that a breach would cause the damages suffered.
Incidental Damages
The minor costs associated with responding to a breach of performance.
Rescission & Restitution
Rescission results in a cancellation of the contract. (Generally where there was fraud, mistake, duress or undue influence – something affecting the genuiness of assent).
If a contract is rescinded, both parties must make restitution to each other.
Both parties are returned to the position they were in prior to the contract.
Reliance Interest
Where the expectation interest of a contract cannot be fairly measured, a party injured by a breach may be entitled to damages that will restore the party to the position he would have been in if he had not entered into the contract.
Equitable Remedies
Specific performance
Injunction
Reformation of the contract
Mitigation
The law does not permit a party to recover damages for breach of contract if the damages could have been avoided without undue risk, burden or humiliation.
A party must exercise reasonable efforts to mitigate damages.
Liquidated Damages
Damages specified within the contract itself – a liquidated damages clause states, in advance, how much a party must pay if he or she breaches the contract.
Washington upholds these clauses unless it is a “penalty” and so long as the agreement is fair.
Attorney Fees & Costs
A court will enforce a contract term requiring the losing party in an action on the contract to pay the other party’s attorney fees and litigation costs.
April 22, 2010
Conditions
-a condition is an event that must occur before a duty to perform arises or which discharge a duty that have already risen
-created by word, conduct, law
-no special language is necessary to create condition
Third Party Rights
-may have a legal interest in a contract and be able to enforce the contract, if there is:
-beneficiary interest
1. intended: can enforce the contract
2. incidental: can not enforce
-an assignments
-delegation
DIA v. Rose Jr.
Meeting of the minds
Contract should benefit
3rd party beneficiary
-needs to be intended at the time the contract was made
Assignment & Delegation
-A contracting party may transfer his or her rights under a contract – this is an assignment.
-A contracting party may transfer his or her duties under a contract – this is a delegation.
Assignment
A contract must first exist.
There will be an obligor and an obligee.
One of the parties (the obligee) transfers his rights under a contract to a third person.
The person transferring – or assigning – his rights is the assignor.
The person receiving the assignment is the assignee.
The obligor now owes the money to the assignee.
Delegation
A contract must first exist.
There will be an obligor and an obligee.
One of the parties (the obligor) transfers his duties under the contract to a third person.
The person transferring – or delegating – his duties is the delegator.
The person receiving the delegation is the delegatee.
The delegatee now owes the duty to the obligee.
The delegator remains ultimately responsible for the performance under the contract.
Novation
A novation is a three-way agreement in which one party transfers all her rights and duties to a third party.
Both original parties agree to the novation.
Essentially the third party substitutes in for one of the original parties to the contract.
The obligee agrees to look only to the third party for performance.
When does a contract end?
Discharge of Duties
Contractual duties may be discharged by:
Performance of all contractual duties OR
A condition excusing the duty to perform
Agreement
Impossibility of performance
Commercial Impracticability
Performance
With performance, the contract ends when it is fully executed – that is when both parties fully perform their obligations under the contract.
Strict performance
Substantial performance
Personal Satisfaction
In some contracts the performance must be done to the personal subjective satisfaction of the promisee.
Dissatisfaction results in termination of the contract.
In Washington the dissatisfaction must be based on reasonable grounds. Omni Group, Inc. v. Seattle-First Nat’l Bank, 32 Wn. App.22 (1982).
Good Faith
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
Restatement (Second) of Contracts § 205
-insurance contracts
Most contracts end when the performance is done.
Breach
Any failure or refusal to perform a contractual duty constitutes a breach.
When one party breaches a contract, the other party is discharged.
However, courts only discharge (or cancel) a contract if a party has committed a material breach of the contract. (material is a fact)
Anticipatory Repudiation
Occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time of performance.
Must be a positive statement or action indicating distinctly and unequivocally that the repudiating party will not substantially perform.
Discharge by Agreement
Parties can end the contract by agreement through
Rescission
Novation
Accord and satisfaction
Impossibility of Performance
If a party is unable to perform a contract because performance becomes “impossible,” then the performance is excused.
Commercial Impracticality
If circumstances change (that neither party anticipated), leaving one party at a significant commercial disadvantage, that party may be excused from the contract under the theory of commercial impracticality.
If the change could have been foreseen, the court will generally not afford relief.
REMEDIES
Remedies
If one party fails to live up to the terms of the contract, the other party may sue. The remedy is how the court compensates the injured party.
Money damages based on
Expectation of contract performance
Actions taken in reliance on
Performance of the Contract
Rescission and Restitution
Reformation of the Contract
Compensatory Damages
These damages flow directly form the contract – damages that inevitably result from the breach.
Washington law
The general measure of damages:
The injured party is entitled to:
Recover of all damages that accrue naturally from the breach, and
Be put into as good a pecuniary position as he would have had if the contract had been performed.
Diedrick v. School Dist. No. 81, 87 Wn.2d 598 (1976)
Consequential Damages
These are damages that result from the unique circumstances of the injured party.
The injured party must prove that the breaching party had reasonable notice of the special circumstances and that a breach would cause the damages suffered.
Incidental Damages
The minor costs associated with responding to a breach of performance.
Rescission & Restitution
Rescission results in a cancellation of the contract. (Generally where there was fraud, mistake, duress or undue influence – something affecting the genuiness of assent).
If a contract is rescinded, both parties must make restitution to each other.
Both parties are returned to the position they were in prior to the contract.
Reliance Interest
Where the expectation interest of a contract cannot be fairly measured, a party injured by a breach may be entitled to damages that will restore the party to the position he would have been in if he had not entered into the contract.
Equitable Remedies
Specific performance
Injunction
Reformation of the contract
Mitigation
The law does not permit a party to recover damages for breach of contract if the damages could have been avoided without undue risk, burden or humiliation.
A party must exercise reasonable efforts to mitigate damages.
Liquidated Damages
Damages specified within the contract itself – a liquidated damages clause states, in advance, how much a party must pay if he or she breaches the contract.
Washington upholds these clauses unless it is a “penalty” and so long as the agreement is fair.
Attorney Fees & Costs
A court will enforce a contract term requiring the losing party in an action on the contract to pay the other party’s attorney fees and litigation costs.
April 21st Notes
Complex Litigation
April 21, 2010
NEWS
Tribal Court Public Defense
Paralegal Volunteer: Opportunity open
16 hrs/week for 10 weeks
Brenda Williams
Tribal Court Public Defense Clinic
UW School of Law
William H. Gates Hall, Suite 265
Box 85110
Seattle, WA 981450-1110
brenda3 at uwashington.edu
206-685-3917
1. Letter of interest
2. Resume
3. Two letters of recommendation
----------------------------------------------------------------
Liability is a responsibility
Joint and Several Liability
Joint Liability
-holds everyone liable
-pure joint liability is a minority view
-each negligent actor is fully liable for the entire judgment not just his/her %
Several Liability
-Proportionate to culpability, each negligent actor is liable only for his/her % assigned by judge/jury
Vicarious v. Direct Liability (party is held responsible for their actions)
Vicarious Liability
-liability based on public policy, not culpability
-shift loss to a party better able to insure against it, spread cost of it, prevent its occurrence, or who made money from the activity that caused it
-held responsible for the act of another
Direct Liability
-Solo (1 negligent actor)
-Concurrent/Joint (2 tort feasons acting together) (not necessarily "coordinated")
-Derivative (your negligence enables the negligent act which is committed by another)
Washington
-had pure joint liability until 1986
-tort reform act says no longer have joint liability except under 4 circumstances
1. Agency: someone doing your bidding and it creates a harm (agent & principal) --- joint
2. Employer/employee---- joint
3. Defendants acting in concert (drag racing)---- joint
4. a. Plaintiff is fault free
b. against defendants who are named in the judgment
-not settled
-not unnamed and unserved
a. 10%
b. 10%
c. 5%
d. 75%
Only c has assets, then they must pay full amount, the joint percentage
Plaintiff sues A and B
settles A for $2000
B is found 10% liable at fault for $20,000
Can B drag A in?
States have different approaches
1. Can not bring back in a party that settles out, contribution can only be in joint. Still in the pot, contribution. Once out, they are out. And the since 50% of the claim is release, the remaining party must pay 50% at most. Those percentages can change.
2. Good faith hearing. Early in the case, court hearing if anyone wants to settle. Other defendants can appear and have their say. The Judge will make a judgment about who can settle and what the percentages are.
3. You can settle out without contribution. For the amount that defendant pays, the other defendants can deduct that amount settled for from the judgment.
4. Why is contribution not a problem under WA joint system?
-there is no joint liability if they were never named in a lawsuit
-so A was never in a the lawsuit or settled out
-meaning no contribution, so B is liable
Booth v. Mary Carter Paint Company (1967) 202 So2nd 8
-Mary Carter agreements
indemnification
-companion concept to contribution
-shifts all the liability to another defendant, they pay it all
Contracts:
-contractor will but an indemnification provision for subcontractors
Law:
-Principals and Agents
-principal must indemnification the agent for the agency
Contract Remedies/Commercial Litigation
2 types
1. Legal
-money
2. Equitable
-reformation: typo in contract
-injunctions: stop from doing something
-rescission: get out of contract completely
-restitution: get back what I gave to the other side
-specific performance: not the money, want something specific
-constructive trust: court order for object to be frozen until a remedy is found
-quiet title: action lets court decide who the lawfully owner is
-declaratory relief: court orders what the rights of the parties are
Equitable remedies are there when money does not do the trick. You can ask for both.
-use different theories and causes of action
April 21, 2010
NEWS
Tribal Court Public Defense
Paralegal Volunteer: Opportunity open
16 hrs/week for 10 weeks
Brenda Williams
Tribal Court Public Defense Clinic
UW School of Law
William H. Gates Hall, Suite 265
Box 85110
Seattle, WA 981450-1110
brenda3 at uwashington.edu
206-685-3917
1. Letter of interest
2. Resume
3. Two letters of recommendation
----------------------------------------------------------------
Liability is a responsibility
Joint and Several Liability
Joint Liability
-holds everyone liable
-pure joint liability is a minority view
-each negligent actor is fully liable for the entire judgment not just his/her %
Several Liability
-Proportionate to culpability, each negligent actor is liable only for his/her % assigned by judge/jury
Vicarious v. Direct Liability (party is held responsible for their actions)
Vicarious Liability
-liability based on public policy, not culpability
-shift loss to a party better able to insure against it, spread cost of it, prevent its occurrence, or who made money from the activity that caused it
-held responsible for the act of another
Direct Liability
-Solo (1 negligent actor)
-Concurrent/Joint (2 tort feasons acting together) (not necessarily "coordinated")
-Derivative (your negligence enables the negligent act which is committed by another)
Washington
-had pure joint liability until 1986
-tort reform act says no longer have joint liability except under 4 circumstances
1. Agency: someone doing your bidding and it creates a harm (agent & principal) --- joint
2. Employer/employee---- joint
3. Defendants acting in concert (drag racing)---- joint
4. a. Plaintiff is fault free
b. against defendants who are named in the judgment
-not settled
-not unnamed and unserved
a. 10%
b. 10%
c. 5%
d. 75%
Only c has assets, then they must pay full amount, the joint percentage
Plaintiff sues A and B
settles A for $2000
B is found 10% liable at fault for $20,000
Can B drag A in?
States have different approaches
1. Can not bring back in a party that settles out, contribution can only be in joint. Still in the pot, contribution. Once out, they are out. And the since 50% of the claim is release, the remaining party must pay 50% at most. Those percentages can change.
2. Good faith hearing. Early in the case, court hearing if anyone wants to settle. Other defendants can appear and have their say. The Judge will make a judgment about who can settle and what the percentages are.
3. You can settle out without contribution. For the amount that defendant pays, the other defendants can deduct that amount settled for from the judgment.
4. Why is contribution not a problem under WA joint system?
-there is no joint liability if they were never named in a lawsuit
-so A was never in a the lawsuit or settled out
-meaning no contribution, so B is liable
Booth v. Mary Carter Paint Company (1967) 202 So2nd 8
-Mary Carter agreements
indemnification
-companion concept to contribution
-shifts all the liability to another defendant, they pay it all
Contracts:
-contractor will but an indemnification provision for subcontractors
Law:
-Principals and Agents
-principal must indemnification the agent for the agency
Contract Remedies/Commercial Litigation
2 types
1. Legal
-money
2. Equitable
-reformation: typo in contract
-injunctions: stop from doing something
-rescission: get out of contract completely
-restitution: get back what I gave to the other side
-specific performance: not the money, want something specific
-constructive trust: court order for object to be frozen until a remedy is found
-quiet title: action lets court decide who the lawfully owner is
-declaratory relief: court orders what the rights of the parties are
Equitable remedies are there when money does not do the trick. You can ask for both.
-use different theories and causes of action
Wednesday, April 21, 2010
April 20th Notes
Family Law
April 20, 2010
-Assignment on Dissolution, on court website actually filling out the forms online
-all the information is in the assignment
Dissolution/Divorce
Context
-Grounds: fault
-Adultery
-Cruelty
-Desertion
-No fault
-Shift in attitudes
-change in terminology
-Allegation
-Incompatible
-Irreconcilable Differences
-Irremediable Breakdown
-Irretrievably Broken
Washington uses:
-RCW 26.09.030 (i)
-irretrievably broken
Defenses
-marriage is remediable
-jurisdiction
-court can not hear the case
Contested vs. Uncontested
-over 90% are uncontested
-Contested?
-spousal support
-property division
-child support/child custody
What forms requirements exist in WA?
RCW 26.09.006 Mandatory use of approved forms
1. party shall not file any pleading with the clerk of the court in an action commenced under this chapter unless on forms approves by the administrator for the courts
2. the parties shall comply with requirements for submission to the court of forms as provided in RCS 26.18.220
www.courts.wa.gov/forms
-complete a dissolution and child support
What is the petition captioned?
RCW 26.09.010(2)
-In re the marriage of .... and ....
-the ... is the last names
Parties in dissolution
-spouse filing the dissolution is petitioner
-spouse answering is respondent
-DO NOT USE plaintiff or defendant
Jurisdiction
-Where is the petition filed?
RCW 26.09.010 (2)
-in the superior court of the county where the petitioner resides
Residence/Domicile
-Residence
-where one is living at particular time
-Domicile
-where one has physically been with no intention to make it his or her permanent home & with no intention to make any other place a permanent home
Marriage of Strohmaier
-Residence in fact coupled with an intention to make the place of residence a home at the moment not at some future time are indispensable elements of domicile
Result
-court interpret more like domicile than residence
Determine Domicile
-What questions could you ask?
-mail, utility bills, voter's registration, lease, credit card payments, title documents
-What records do you ask for?
Two types of Jurisdiction
-In personam
-need both on parties
-court can:
-grant dissolution
-dispose of property
-provide spousal support
-set parenting plan
-determine child placement
-In rem
-this curtails the court's power
-court can:
-grant dissolution
-must be accomplished in later separate action
Lincoln County Divorce
-online divorce
-quickie divorces
-don't have to go to court
Online Dissolution
-court appearance not required
-both parties must
-agree to the dissolution
-submit to jurisdiction
-one party must be WA resident or in military
-agree on property distribution
-agree on all issues regarding children of the marriage
What if non-petitioning spouse has moved out of state?
-WA state service of process statute
-long arm statue
RCW 4.28.185
-look at (c)(e)(f)
-long arm statute RCW 4.28.180
Out of state party
-determine address to serve
-file affidavit with court for out of state service
-serve via personal service in that state
International law applies if they leave the countries
-will look to treaties to find out how to reach them
Death of party
-the action is over
Dissolution process
-file petition
-serve respondent
-contested ---> court action
-uncontested ----->lapse of time
Petition
-file in country where petitioner resides
-Fee $120 can be more, this is a minimum
-If there are children, is separate filing requirement
-Yes RCW 26.09.010(3)
-In re parenting and support of .....
-the ..... are the initials of the children not their full names!
-easy for others to abuse this with public records
What must the dissolution petition include?
-RCW 26.09.020
-last known county of residence
-date and place of marriage
-separated, date of separation
-names, ages, locations of children
-is the wife pregnant
-decide not to entire final decree until after child's birth to permit parenting plan and support
-enter final decree in order to permit subsequent marriage
-child born of marriage is presumed child of husband regardless of biological truth, absent action to determine paternity
-if children parenting plan
-property statement
-relief sought
Petition
-may also include
-name changes
-identification of community/separate property & liabilities with proposed distribution plan
-proposal for parenting plan, child support, in separate petition
Service of Process
-form of summons depends on method of service used
Proof of service
-file as soon as completed
-final order can not be entered without proof of service on file
Uncontested
RCW 26.09.030
-90 days have elapsed since the petition
-parties can agree on
-property distribution
-parenting plan
-child support
-spousal maintenance
-the court usually don't disturb this if it's agreed
-fraud, duress or coercion however might be cause for intervention
Contested
-court's opinions
-RCW 26.090.030
if fraud coercion ---> dismisses petition
if respondent denies marriage irretrievably broken
-court could;
-grant dissolution
-refer to counsel then report in 60 days
-continue case for 60 days
-push to family court
-dismiss the case
Spousal Maintenance
-RCW 26.09.090
-the court may grant a maintenance order for either spouse
-spousal misconduct is not considered in the determination
-Marriage of Foran: cases of abuse where the abuse is so severe the spouse can no longer be self-supporting
Factors determining
-financial resources
-time required
-standard of living
-duration of marriage
-age, physical and emotional condition
-ability of spouse paying maintenance to needs
Marriage of Luckey
-support until able to be self supporting
In re Terry
-equalize post dissolution economic conditions of parties
Kelso v. Kelso
-needed because while able to work, one custodial parent
In re Marriage of Matthews
-by order when spouse dissipates or conceals community assets
If you do not ask for spousal support you lose it
Distribution of property
-two methods
1. Equal
-one half to each
2. Equitable
-court decides
WA is?
-RCW 26.09.080
Equitable
Guidelines for distribution
-RW 26.09.080
-nature and extent of community property
-nature and extent of separated property
-duration of the marriage
-economic circumstances of each spouse at the time of the division
Under (4) Court considers
-health and age of parties
-prospects for future earnings
-foreseeable future acquisitions and obligations
-how property was acquired
-paramount concern is post dissolution economic condition of parties
Characterization of the property
-consideration but not a controlling factor
-courts can override
Special Property
-family home: placement of children determined
-Marriage of Foley: court may order sale of home or refinance to pay spouse
-right to equalizing payment within reasonable time
-education and degrees:
-Marriage of Washburn: marriage ends before supporting spouse realizes benefits of supported spouse's education is a factor
-amount determined by:
-community contribution
-supporting spouse's foregone opportunities
-future earning power
-Method of payment
-property
-spousal maintenance
-both
-insurance :
-proceeds take on character of property insured
-non probate assets - life insurance
-RCW 11.07.010 (2)(a) Mearns v. Scharbach
-you forget to change the name on the policy to new wife/husband
-law to change that automatically
-personal injury awards:
-pain and suffering ----> separate property of injured spouse
-reimbursement for injury related expenses, lost wages, future earnings capacity ----> charactered according to character of estates being reimbursed
-disability:
-if supplants retirements benefits then asset
-Marriage of Kraft: Compensation for future earnings is separate property and divisible
-May be considered as affecting spouse's ability to pay spousal maintenance
-pensions:
-retirement income, deferred compensation, any part earned during marriage is divisible
-military pensions:
-they are property rights subject to division on dissolution
-best to contact specific branch of military and follow requirements
-specific language to enable honoring and compliance with direct distribution
-goodwill:
-professional goodwill is intangible asset subject to division in dissolution
-Marriage of Fleege: factors applied in 2 step process
-determine whether goodwill exists
-determine its value
-stock options:
-awarded and vested during marriage are CP divisible in dissolution
-property not included in decree:
-something forgotten
-cp ----> tenants in common
-result to partition it requires a new action
-divided as co-tenants
-no consideration of equitable division
-sp ---> remains sp party
-liabilities
-division of separate and community debts in just and equitable manner after characterizing
-community debts
-can be distributed between parties
-satisfy with assets to avoid problems
-refinancing
-work with creditors
IRS
-parties signed joint tax return ----> both are liable
-innocent spouse rule
-in tax court, you need to prove you are not guilty
Attorney fees
-RCW 26.09.140 court may order one party to pay amount towards another party
-proof of why you are entitled
Meretricious Relationships
-living together
-court determines long term cohabitation is similar to marriage to warrant treatments as marriage for purpose of dividing property
-statutes do not have to be followed but can be
-reimbursements may be ordered if sp received benefits from relationship
April 20, 2010
-Assignment on Dissolution, on court website actually filling out the forms online
-all the information is in the assignment
Dissolution/Divorce
Context
-Grounds: fault
-Adultery
-Cruelty
-Desertion
-No fault
-Shift in attitudes
-change in terminology
-Allegation
-Incompatible
-Irreconcilable Differences
-Irremediable Breakdown
-Irretrievably Broken
Washington uses:
-RCW 26.09.030 (i)
-irretrievably broken
Defenses
-marriage is remediable
-jurisdiction
-court can not hear the case
Contested vs. Uncontested
-over 90% are uncontested
-Contested?
-spousal support
-property division
-child support/child custody
What forms requirements exist in WA?
RCW 26.09.006 Mandatory use of approved forms
1. party shall not file any pleading with the clerk of the court in an action commenced under this chapter unless on forms approves by the administrator for the courts
2. the parties shall comply with requirements for submission to the court of forms as provided in RCS 26.18.220
www.courts.wa.gov/forms
-complete a dissolution and child support
What is the petition captioned?
RCW 26.09.010(2)
-In re the marriage of .... and ....
-the ... is the last names
Parties in dissolution
-spouse filing the dissolution is petitioner
-spouse answering is respondent
-DO NOT USE plaintiff or defendant
Jurisdiction
-Where is the petition filed?
RCW 26.09.010 (2)
-in the superior court of the county where the petitioner resides
Residence/Domicile
-Residence
-where one is living at particular time
-Domicile
-where one has physically been with no intention to make it his or her permanent home & with no intention to make any other place a permanent home
Marriage of Strohmaier
-Residence in fact coupled with an intention to make the place of residence a home at the moment not at some future time are indispensable elements of domicile
Result
-court interpret more like domicile than residence
Determine Domicile
-What questions could you ask?
-mail, utility bills, voter's registration, lease, credit card payments, title documents
-What records do you ask for?
Two types of Jurisdiction
-In personam
-need both on parties
-court can:
-grant dissolution
-dispose of property
-provide spousal support
-set parenting plan
-determine child placement
-In rem
-this curtails the court's power
-court can:
-grant dissolution
-must be accomplished in later separate action
Lincoln County Divorce
-online divorce
-quickie divorces
-don't have to go to court
Online Dissolution
-court appearance not required
-both parties must
-agree to the dissolution
-submit to jurisdiction
-one party must be WA resident or in military
-agree on property distribution
-agree on all issues regarding children of the marriage
What if non-petitioning spouse has moved out of state?
-WA state service of process statute
-long arm statue
RCW 4.28.185
-look at (c)(e)(f)
-long arm statute RCW 4.28.180
Out of state party
-determine address to serve
-file affidavit with court for out of state service
-serve via personal service in that state
International law applies if they leave the countries
-will look to treaties to find out how to reach them
Death of party
-the action is over
Dissolution process
-file petition
-serve respondent
-contested ---> court action
-uncontested ----->lapse of time
Petition
-file in country where petitioner resides
-Fee $120 can be more, this is a minimum
-If there are children, is separate filing requirement
-Yes RCW 26.09.010(3)
-In re parenting and support of .....
-the ..... are the initials of the children not their full names!
-easy for others to abuse this with public records
What must the dissolution petition include?
-RCW 26.09.020
-last known county of residence
-date and place of marriage
-separated, date of separation
-names, ages, locations of children
-is the wife pregnant
-decide not to entire final decree until after child's birth to permit parenting plan and support
-enter final decree in order to permit subsequent marriage
-child born of marriage is presumed child of husband regardless of biological truth, absent action to determine paternity
-if children parenting plan
-property statement
-relief sought
Petition
-may also include
-name changes
-identification of community/separate property & liabilities with proposed distribution plan
-proposal for parenting plan, child support, in separate petition
Service of Process
-form of summons depends on method of service used
Proof of service
-file as soon as completed
-final order can not be entered without proof of service on file
Uncontested
RCW 26.09.030
-90 days have elapsed since the petition
-parties can agree on
-property distribution
-parenting plan
-child support
-spousal maintenance
-the court usually don't disturb this if it's agreed
-fraud, duress or coercion however might be cause for intervention
Contested
-court's opinions
-RCW 26.090.030
if fraud coercion ---> dismisses petition
if respondent denies marriage irretrievably broken
-court could;
-grant dissolution
-refer to counsel then report in 60 days
-continue case for 60 days
-push to family court
-dismiss the case
Spousal Maintenance
-RCW 26.09.090
-the court may grant a maintenance order for either spouse
-spousal misconduct is not considered in the determination
-Marriage of Foran: cases of abuse where the abuse is so severe the spouse can no longer be self-supporting
Factors determining
-financial resources
-time required
-standard of living
-duration of marriage
-age, physical and emotional condition
-ability of spouse paying maintenance to needs
Marriage of Luckey
-support until able to be self supporting
In re Terry
-equalize post dissolution economic conditions of parties
Kelso v. Kelso
-needed because while able to work, one custodial parent
In re Marriage of Matthews
-by order when spouse dissipates or conceals community assets
If you do not ask for spousal support you lose it
Distribution of property
-two methods
1. Equal
-one half to each
2. Equitable
-court decides
WA is?
-RCW 26.09.080
Equitable
Guidelines for distribution
-RW 26.09.080
-nature and extent of community property
-nature and extent of separated property
-duration of the marriage
-economic circumstances of each spouse at the time of the division
Under (4) Court considers
-health and age of parties
-prospects for future earnings
-foreseeable future acquisitions and obligations
-how property was acquired
-paramount concern is post dissolution economic condition of parties
Characterization of the property
-consideration but not a controlling factor
-courts can override
Special Property
-family home: placement of children determined
-Marriage of Foley: court may order sale of home or refinance to pay spouse
-right to equalizing payment within reasonable time
-education and degrees:
-Marriage of Washburn: marriage ends before supporting spouse realizes benefits of supported spouse's education is a factor
-amount determined by:
-community contribution
-supporting spouse's foregone opportunities
-future earning power
-Method of payment
-property
-spousal maintenance
-both
-insurance :
-proceeds take on character of property insured
-non probate assets - life insurance
-RCW 11.07.010 (2)(a) Mearns v. Scharbach
-you forget to change the name on the policy to new wife/husband
-law to change that automatically
-personal injury awards:
-pain and suffering ----> separate property of injured spouse
-reimbursement for injury related expenses, lost wages, future earnings capacity ----> charactered according to character of estates being reimbursed
-disability:
-if supplants retirements benefits then asset
-Marriage of Kraft: Compensation for future earnings is separate property and divisible
-May be considered as affecting spouse's ability to pay spousal maintenance
-pensions:
-retirement income, deferred compensation, any part earned during marriage is divisible
-military pensions:
-they are property rights subject to division on dissolution
-best to contact specific branch of military and follow requirements
-specific language to enable honoring and compliance with direct distribution
-goodwill:
-professional goodwill is intangible asset subject to division in dissolution
-Marriage of Fleege: factors applied in 2 step process
-determine whether goodwill exists
-determine its value
-stock options:
-awarded and vested during marriage are CP divisible in dissolution
-property not included in decree:
-something forgotten
-cp ----> tenants in common
-result to partition it requires a new action
-divided as co-tenants
-no consideration of equitable division
-sp ---> remains sp party
-liabilities
-division of separate and community debts in just and equitable manner after characterizing
-community debts
-can be distributed between parties
-satisfy with assets to avoid problems
-refinancing
-work with creditors
IRS
-parties signed joint tax return ----> both are liable
-innocent spouse rule
-in tax court, you need to prove you are not guilty
Attorney fees
-RCW 26.09.140 court may order one party to pay amount towards another party
-proof of why you are entitled
Meretricious Relationships
-living together
-court determines long term cohabitation is similar to marriage to warrant treatments as marriage for purpose of dividing property
-statutes do not have to be followed but can be
-reimbursements may be ordered if sp received benefits from relationship
Friday, April 16, 2010
April 15th Notes
Business Law
April 15, 2010
Contracts
1. agreement
2. based on offer, acceptance
3. meeting of the minds
4. legality
5. capacity
-Capacity/Consent
-Statute of Fraud
-Drafting Tips
Contractual Capacity
-need the meeting of the minds
-the bases for showing lack of capacity to enter into a contract are:
-minority
-intoxication
-mental incompetence
Contracts with Minors
-18 years old
-are voidable
-dis-affirmed
-ratified
Disaffirmance
-a minor may disaffirm or rescind if:
-disaffirmance is timely and
-minor returns the consideration received to the extent possible
Ratification
-after becoming an adult, the minor can ratify the contract
-if ratified it is enforceable
Mental Impairment
-same rules as minor
Intoxication
-not a defense to enforcement of a contract
-if it results in ability to understand, then its voidable
-high burden
Genuine Consent
-court can refuse to enforce a contract if the facts were not understood
-misrepresentation or fraud
-mistake
-undue influence
-duress
Fraud/Misrepresentation
-fraud is intentional
-needs proof, is hard to prove
-misrepresentation of a material fact
-intent to deceive
-justifiable reliance on the deception
Innocent Misrepresentation
-misrepresentation is the unintentional deception
-involves material fact
-fact must be within the exclusive knowledge of the person making the misrepresentation
-not reasonably available to party deceived
Mistake
-two kinds
-mutual
-unilateral
Undue Influence
-exists with confidential or fiduciary relationship between contracting parties
-trust was abused and the vulnerable party entered a contract
Duress
-involuntarily entering into a contract, forced to agree
-is voidable
Statute of Frauds
-contracts required to be in writing are enforceable
-interest to land
-executor of an estate
-pay debt of another
-cannot be performed in a year
-made in consideration of marriage
-for sale of goods worth more than $500
WA Statute of Frauds
-require in writing
RCW 19.36.010 (general)
RCW 64.04.020 (deeds)
RCW 62A.2-201 (sale of goods over $500)
RCW 62A.2A-201 (lease of goods over $1000)
Sufficiency of Writing
-contract or memorandum of contract
-must be signed by the party to be charged
-must state reasonable certainty
-names of parties, subject matter, all essential terms and promises
Parol Evidence Rule
-once contract is written, "parol" or extrinsic evidence to contradict vary or add to its terms
Unless:
-court determines the written agreement is incomplete or ambiguous
-contract was modified
-evidence is used to prove defense
Negotiating and Drafting the Agreement
Negotiations
-know
-client's business goals
-how the contract can further
-risks in this transaction
-issues raised by terms
-balanced control
-should the agreement address remedies
-meetings with the other party
-this is not litigation
-it is not adversarial
-work to achieve an agreement that is acceptable and clear to all parties
Drafting
-translating the "deal" into a contract
-principles
-start with a form
-use clear, unambiguous language
-be consistent throughout the contract
-all essential terms
Contract Parts
-preample
-recitals
-words of agreement
-definition of terms
-action section
-substantive business
-warranties, conditions, covenants
-endgame provisions
-general provisions
-signature lines
Preample
-first paragraph
-purpose to identify the contract
-sets out the name of the agreement
-parties and date the contract is signed
Words of Agreement
-state for the record that the parties agree to the terms
Definitions
-referring to complex concepts
Action Sections
-tells the parties how to perform the principal objective of the contract
-provisions in which the parties agree to
-consideration
Substantive Provisions
-representations
-warranties
-covenants
-rights
-conditions
-discretionary authority
-declarations
Endgame Provisions
-what happens when the contract ends
-default
-collateral
General Provisions
-notice provisions
-choice of law
-choice of forum
-anti-assignment clause
-modification
-severability
Signature Lines
April 15, 2010
Contracts
1. agreement
2. based on offer, acceptance
3. meeting of the minds
4. legality
5. capacity
-Capacity/Consent
-Statute of Fraud
-Drafting Tips
Contractual Capacity
-need the meeting of the minds
-the bases for showing lack of capacity to enter into a contract are:
-minority
-intoxication
-mental incompetence
Contracts with Minors
-18 years old
-are voidable
-dis-affirmed
-ratified
Disaffirmance
-a minor may disaffirm or rescind if:
-disaffirmance is timely and
-minor returns the consideration received to the extent possible
Ratification
-after becoming an adult, the minor can ratify the contract
-if ratified it is enforceable
Mental Impairment
-same rules as minor
Intoxication
-not a defense to enforcement of a contract
-if it results in ability to understand, then its voidable
-high burden
Genuine Consent
-court can refuse to enforce a contract if the facts were not understood
-misrepresentation or fraud
-mistake
-undue influence
-duress
Fraud/Misrepresentation
-fraud is intentional
-needs proof, is hard to prove
-misrepresentation of a material fact
-intent to deceive
-justifiable reliance on the deception
Innocent Misrepresentation
-misrepresentation is the unintentional deception
-involves material fact
-fact must be within the exclusive knowledge of the person making the misrepresentation
-not reasonably available to party deceived
Mistake
-two kinds
-mutual
-unilateral
Undue Influence
-exists with confidential or fiduciary relationship between contracting parties
-trust was abused and the vulnerable party entered a contract
Duress
-involuntarily entering into a contract, forced to agree
-is voidable
Statute of Frauds
-contracts required to be in writing are enforceable
-interest to land
-executor of an estate
-pay debt of another
-cannot be performed in a year
-made in consideration of marriage
-for sale of goods worth more than $500
WA Statute of Frauds
-require in writing
RCW 19.36.010 (general)
RCW 64.04.020 (deeds)
RCW 62A.2-201 (sale of goods over $500)
RCW 62A.2A-201 (lease of goods over $1000)
Sufficiency of Writing
-contract or memorandum of contract
-must be signed by the party to be charged
-must state reasonable certainty
-names of parties, subject matter, all essential terms and promises
Parol Evidence Rule
-once contract is written, "parol" or extrinsic evidence to contradict vary or add to its terms
Unless:
-court determines the written agreement is incomplete or ambiguous
-contract was modified
-evidence is used to prove defense
Negotiating and Drafting the Agreement
Negotiations
-know
-client's business goals
-how the contract can further
-risks in this transaction
-issues raised by terms
-balanced control
-should the agreement address remedies
-meetings with the other party
-this is not litigation
-it is not adversarial
-work to achieve an agreement that is acceptable and clear to all parties
Drafting
-translating the "deal" into a contract
-principles
-start with a form
-use clear, unambiguous language
-be consistent throughout the contract
-all essential terms
Contract Parts
-preample
-recitals
-words of agreement
-definition of terms
-action section
-substantive business
-warranties, conditions, covenants
-endgame provisions
-general provisions
-signature lines
Preample
-first paragraph
-purpose to identify the contract
-sets out the name of the agreement
-parties and date the contract is signed
Words of Agreement
-state for the record that the parties agree to the terms
Definitions
-referring to complex concepts
Action Sections
-tells the parties how to perform the principal objective of the contract
-provisions in which the parties agree to
-consideration
Substantive Provisions
-representations
-warranties
-covenants
-rights
-conditions
-discretionary authority
-declarations
Endgame Provisions
-what happens when the contract ends
-default
-collateral
General Provisions
-notice provisions
-choice of law
-choice of forum
-anti-assignment clause
-modification
-severability
Signature Lines
Thursday, April 15, 2010
April 14th Notes
Complex Litigation
April 14, 2010
Differences from Litigation to Complex Litigation
1. Working as a group
2. Less reliance on formal discovery
3. Judges are aggressive
Book necessary for complex litigation: "The Manual for Complex Litigation"
Requests for Admissions in Complex Litigation
-not as important in complex since the judge's power
-eliminate irrelevant, immaterial or redundant material and evidence
Trial Itself
-Judge's do time qualifying the jury
-not completed in 10 day window, usually longer
-want to avoid mistrial, find out who can serve for a longer time
-evidence has all been streamlined
-everything gets moved into evidence
Ten Subjects that can fall into Complex Litigation
Class Actions (CR/FRCP 23)
1. Numerosity (40) so as to make CR 19 joinder "impractical"
-need enough people to bring in or there are too many people to bring in
-you must ask the court permission to form a class action
2. Common question of law or fact which "predominates"
-all issues need not be identical
3. A representative whose claim is "typical" of those in the class
-can not be anyone famous or powerful, needs to represent the average person in the class
4. A representative who will "fairly and adequately" protect & speak for the class
-Can not dismiss without court approval (cf. CR 41) (see CR 23(e))
-Otherwise, class will not be certified by the court
-You must opt out otherwise you are part of the lawsuit
-Do not need minimum contact or residency
-Courts do not like class action lawsuits
-due process does not work
-individuals may be left out
Multiple Litigation
-multiple people suing for the same harm but do not meet the requirements of a class action
-may have opted out of the class action and are pursuing a lawsuit on their own
-usually one judge assigned to all the cases, not always possible
-may consolidate all the cases, but still have individual outcomes
-if not that, try to get them all in one jurisdiction
Criminal
-not usually complex litigation, unless there are novel issues
-decades of crime, multiple victims, organized crime
-the electronic surveillance issue, they check up front about how it is conducted
-if it is, the information must be turned over immediately
-court has power to limit media access to courtroom, statements, gag orders, jury sequestered
Antitrust
-illegal method of excluding competition by achieving a monopoly to the detriment of the public
-Monopolies are not illegal, the intent to is
-Sherman Antitrust Act 1890
-Need to show direct injury and an impact on interstate commerce
-some are exempt: MLB, Railroads, Insurance, Teamsters
-then you must define monopoly in the marketplace, usually 70% control of the market
Mass Torts
-airline crashes, chemical explosions, huge fires, oil spills, nuclear meltdown
-multiple people are hurt or injured
-Toxic Torts: asbestos, fertility drugs
-Product Liability: tires, cell phones, laptops, breast implants, iuds
-defendant facing a high volume of repetitive litigation
-there are may lawsuits that can arise, but you must worry about future plaintiffs
-try to organize in some fashion to litigate
-Another method is a representative case: take one defendant and one plaintiffs and use that as a template for the cases
-Another method is issue by issue
-Another method is all the plaintiffs and all the issues one by one
-Would prefer to throw these into a class action
Securities Fraud
-CR 9
-securities are more than stocks and bonds, profit by ownership of the work of another
-SCC only gets involved when assets are traded interstate
-intrastate security offering have their own per state
-pleadings are lengthy and detailed
-all fraud pleadings must be plead with specificity
-business judgment rule: well reasoned, good faith decisions is not grounds for liability
-blue sky laws: people can't sell you anything
Employment Discrimination
-fairly new to complex litigation, Title 7 of the Civil Right Act in 1964
-allowed for back pay, compensatory damages, future damages, pain and suffering
-"pattern or practice" Denny's and McDonald's were guilty of this against African-Americans
-need to address unions usually
Patents (Title 35)
-only Federal just like Bankruptcy
-USC books
-patents: secures ownership over things (inventions, machines)
-20 years only
-copyrights: protects music, movies, music, ideas
-50 years
-trademarks: with the protect for identification
-10 years, renewable forever
-patents get the least amount of protection: the importance in our lives
-need to have the improve faster
-most complex field of law, have a separate bar for lawyers
-usually only two parties
-patent infringement lawsuits
-always a counterclaim of unfair competition, wrongful business interference, antitrust
-all Federal patent appeals go to the Federal court of appeals
-13th Circuit Federal Circuit hears patents
CERCLA (Comprehensive Environmental Response, Compensation & Liability Act)
42 USC § 9601-9675 (1980)
-"Superfund": set up to clean America's toxic waste sites
-Title 42 Public Health and Welfare Code
-Federal only
-could be EPA, government, individual, group
-scores of counterclaims, that can go back for decades, thousands of potential defendants
-nation wide service of process
PRP (Potential Responsible Party)
1. Any current owner or operator of a site declared to be Superfund
2. Past owners or operators
3. Anyone who arranged for disposal on the site (generator)
4. Anyone that transported to the site
-does not matter if it was legal when you did it, you are still liable
Only two defenses:
1. Act of Nature (God)
2. Another party was 100% liable
-funded this with a billion dollars in 1980 almost 3 billion in 2010
-1980: 1518 sites cleaned 278 (18%)
-2010: 2500 sites funding cut 35% average time to clean 11 years cleaning 622
Top ten offending States
1. New Jersey 113 sites
2. California
3. Pennsylvania
4. New York
5. Michigan
6. Florida
7. Washington 47 sites
8. Texas
9. Illinois
10. Wisconsin
-65 million Americans are within 4 miles of a Superfund site
http://yosemite.epa.gov/r10/cleanup.nsf/webpage/Washington+Cleanup+Sites
RICO (Racketeer Influenced & Corrupt Organizations Act)
18 USC § 1961-1968 (1970)
-Organized Crime Act
-to go after the laundry and fencing operations
-claim there is a pattern or conspiracy to commit illegal actions
-rampant abuse with this, after 1986 if it was not part of organized crime thrown out
-multi state cases to show pattern and conspiracy
There can be many cross-overs between all these areas of complex litigation
Liability
-holds you responsible in two theories:
1. Vicarious - policy not fault
-held responsible through your relationship with the person that did the harm
-respondeat superior: responsible for the torts of employees
-course & scope
-frolic & detour
2. Direct
-through your fault someone was injured
1. Solo
-you alone caused it
2. Joint or Concurrent
-simultaneously cause the harm
3. Derivative
-you enabled something to happen
Joint & Several
-multiple people are responsible for a harm
-each is responsible for the amount of harm caused
Several:
-they split the cost of the judgment by percentage of harm
Joint:
-held to any degree of harm, the plaintiffs can collect 100% from you
-limited joint liability in most states
-there are some that still have pure joint are: Washington DC, Alabama, Maine, Maryland, Massachusetts, North Carolina, Rhode Island, Virginia
-Georgia and Wyoming abolished it
-Florida was abolishing
April 14, 2010
Differences from Litigation to Complex Litigation
1. Working as a group
2. Less reliance on formal discovery
3. Judges are aggressive
Book necessary for complex litigation: "The Manual for Complex Litigation"
Requests for Admissions in Complex Litigation
-not as important in complex since the judge's power
-eliminate irrelevant, immaterial or redundant material and evidence
Trial Itself
-Judge's do time qualifying the jury
-not completed in 10 day window, usually longer
-want to avoid mistrial, find out who can serve for a longer time
-evidence has all been streamlined
-everything gets moved into evidence
Ten Subjects that can fall into Complex Litigation
Class Actions (CR/FRCP 23)
1. Numerosity (40) so as to make CR 19 joinder "impractical"
-need enough people to bring in or there are too many people to bring in
-you must ask the court permission to form a class action
2. Common question of law or fact which "predominates"
-all issues need not be identical
3. A representative whose claim is "typical" of those in the class
-can not be anyone famous or powerful, needs to represent the average person in the class
4. A representative who will "fairly and adequately" protect & speak for the class
-Can not dismiss without court approval (cf. CR 41) (see CR 23(e))
-Otherwise, class will not be certified by the court
-You must opt out otherwise you are part of the lawsuit
-Do not need minimum contact or residency
-Courts do not like class action lawsuits
-due process does not work
-individuals may be left out
Multiple Litigation
-multiple people suing for the same harm but do not meet the requirements of a class action
-may have opted out of the class action and are pursuing a lawsuit on their own
-usually one judge assigned to all the cases, not always possible
-may consolidate all the cases, but still have individual outcomes
-if not that, try to get them all in one jurisdiction
Criminal
-not usually complex litigation, unless there are novel issues
-decades of crime, multiple victims, organized crime
-the electronic surveillance issue, they check up front about how it is conducted
-if it is, the information must be turned over immediately
-court has power to limit media access to courtroom, statements, gag orders, jury sequestered
Antitrust
-illegal method of excluding competition by achieving a monopoly to the detriment of the public
-Monopolies are not illegal, the intent to is
-Sherman Antitrust Act 1890
-Need to show direct injury and an impact on interstate commerce
-some are exempt: MLB, Railroads, Insurance, Teamsters
-then you must define monopoly in the marketplace, usually 70% control of the market
Mass Torts
-airline crashes, chemical explosions, huge fires, oil spills, nuclear meltdown
-multiple people are hurt or injured
-Toxic Torts: asbestos, fertility drugs
-Product Liability: tires, cell phones, laptops, breast implants, iuds
-defendant facing a high volume of repetitive litigation
-there are may lawsuits that can arise, but you must worry about future plaintiffs
-try to organize in some fashion to litigate
-Another method is a representative case: take one defendant and one plaintiffs and use that as a template for the cases
-Another method is issue by issue
-Another method is all the plaintiffs and all the issues one by one
-Would prefer to throw these into a class action
Securities Fraud
-CR 9
-securities are more than stocks and bonds, profit by ownership of the work of another
-SCC only gets involved when assets are traded interstate
-intrastate security offering have their own per state
-pleadings are lengthy and detailed
-all fraud pleadings must be plead with specificity
-business judgment rule: well reasoned, good faith decisions is not grounds for liability
-blue sky laws: people can't sell you anything
Employment Discrimination
-fairly new to complex litigation, Title 7 of the Civil Right Act in 1964
-allowed for back pay, compensatory damages, future damages, pain and suffering
-"pattern or practice" Denny's and McDonald's were guilty of this against African-Americans
-need to address unions usually
Patents (Title 35)
-only Federal just like Bankruptcy
-USC books
-patents: secures ownership over things (inventions, machines)
-20 years only
-copyrights: protects music, movies, music, ideas
-50 years
-trademarks: with the protect for identification
-10 years, renewable forever
-patents get the least amount of protection: the importance in our lives
-need to have the improve faster
-most complex field of law, have a separate bar for lawyers
-usually only two parties
-patent infringement lawsuits
-always a counterclaim of unfair competition, wrongful business interference, antitrust
-all Federal patent appeals go to the Federal court of appeals
-13th Circuit Federal Circuit hears patents
CERCLA (Comprehensive Environmental Response, Compensation & Liability Act)
42 USC § 9601-9675 (1980)
-"Superfund": set up to clean America's toxic waste sites
-Title 42 Public Health and Welfare Code
-Federal only
-could be EPA, government, individual, group
-scores of counterclaims, that can go back for decades, thousands of potential defendants
-nation wide service of process
PRP (Potential Responsible Party)
1. Any current owner or operator of a site declared to be Superfund
2. Past owners or operators
3. Anyone who arranged for disposal on the site (generator)
4. Anyone that transported to the site
-does not matter if it was legal when you did it, you are still liable
Only two defenses:
1. Act of Nature (God)
2. Another party was 100% liable
-funded this with a billion dollars in 1980 almost 3 billion in 2010
-1980: 1518 sites cleaned 278 (18%)
-2010: 2500 sites funding cut 35% average time to clean 11 years cleaning 622
Top ten offending States
1. New Jersey 113 sites
2. California
3. Pennsylvania
4. New York
5. Michigan
6. Florida
7. Washington 47 sites
8. Texas
9. Illinois
10. Wisconsin
-65 million Americans are within 4 miles of a Superfund site
http://yosemite.epa.gov/r10/cleanup.nsf/webpage/Washington+Cleanup+Sites
RICO (Racketeer Influenced & Corrupt Organizations Act)
18 USC § 1961-1968 (1970)
-Organized Crime Act
-to go after the laundry and fencing operations
-claim there is a pattern or conspiracy to commit illegal actions
-rampant abuse with this, after 1986 if it was not part of organized crime thrown out
-multi state cases to show pattern and conspiracy
There can be many cross-overs between all these areas of complex litigation
Liability
-holds you responsible in two theories:
1. Vicarious - policy not fault
-held responsible through your relationship with the person that did the harm
-respondeat superior: responsible for the torts of employees
-course & scope
-frolic & detour
2. Direct
-through your fault someone was injured
1. Solo
-you alone caused it
2. Joint or Concurrent
-simultaneously cause the harm
3. Derivative
-you enabled something to happen
Joint & Several
-multiple people are responsible for a harm
-each is responsible for the amount of harm caused
Several:
-they split the cost of the judgment by percentage of harm
Joint:
-held to any degree of harm, the plaintiffs can collect 100% from you
-limited joint liability in most states
-there are some that still have pure joint are: Washington DC, Alabama, Maine, Maryland, Massachusetts, North Carolina, Rhode Island, Virginia
-Georgia and Wyoming abolished it
-Florida was abolishing
Wednesday, April 14, 2010
April 13th Notes
Litigation Specialties: Family Law
April 13, 2010
NEWS
Planning to makeup the class online with a quiz
-will get back to us on the details
-Judi's lectures will be available by request
---------------------------------------------------------------
Characterization of Property
-definitive in nature
-divorce, estate transition
-1869 became a statute
Why characterization of property?
-more equitable for the parties involved
-marketing tool
-trying to get women out into the west coast
-worked, meant women got to keep their property for the work they did
-rights
-devise what we own
-award on dissolution who owns what in what capacity
-management & control of property
-rights of creditors
-tort liability
Characterization Schemes
-basically 2
1. Separate property states
-you only have separate property
2. Community property states
-9 states
-AZ, CA, ID, LA, NV, NM, TX, WA, WI
-each is different
-you have both separate and community
Community Property
-property that is acquired onerously by a married couple domiciled in a community property state
-need to break down each word and piece
-property means anything you own
-onerously means "to labor" working in some fashion for it
-married couple you must be married
-domiciled in the state
-WA 1st enacted in 1869
-unchanged till 1972 (amended to establish equality of management)
-the right to manage and control the property was vested with the husband and now it was set for both
-modeled on CA statute
-doesn't come from English Common law
-comes from Spanish law
WA Statutes - Separate Property
-How does WA define Separate Property?
-RCW 26.16.010
-before the marriage it was separate
-limited ways to get separate property after marriage
-inheritance, gift, death
WA Statutes - Community Property
-How does WA define Community Property?
-RCW 26.16.030
-"waste basket approach"
-everything leftover goes into this pile
Characterization
-process by which separate property is distinguished from community property
-must be married to have community property
-in married
-community property
-separate property of each spouse
-includes joint ownership owned by one party as his/her separate property
-joint tenancy with rights to survivorship
-tenancy in common
Management and Control
-right to use, transfer, abandon, lease, expend, assign, create a security interest in, mortgage, dispose of, institute or defend a legal action regarding, buy, consume, exchange, encumber, sell, donate, dictate the manner by which the property will or will not be used
Who manages the community property?
-1972 both spouses
-RCW 26.16.030
-both spouses signature to acquire, sell, gift, encumber, assign
Can character be changed?
-yes
-transmutation
-separate to community requires a community property agreement
-bilateral by contract
-formalities required
-prenup, post nup
-writing signed by both parties, some states, acknowledgement and recording
-consideration
-marriage sufficient for prenup but post nup
-undue influence
-confidential relationship of fairness and good faith
-public policy
-if it contemplates divorce in past held to violate public policy
-unilateral by gift
Unilateral Gifts
-gift separate property to community possible in all 9 states
-gift from community to separate possible in some states
-it is in WA
WA Statutes Wills
-How much can each spouse devise or bequeath?
-RCW 26.16.030(1)
-no more than one-half
Can one spouse give away community property?
-RCW 26.16.030
Can one spouse give his or her interest in the community property to the other spouse?
-RCW 26.16.050
-full half or that is it
position on gifting community property to other spouse
Middle position
-person property can do this orally
-realty must be done in writing
Determine what is separate property
-focus is on acquisition date
-before marriage is separate
-during marriage
Problem
-what about the increase in value during marriage?
-rents profits
Guye v. Guye
-property appreciation during marriage was acquired before marriage and thus cp
-court analogized appreciation to rents, profits which remain SP and half that is SP
-mere change in asset's value does not affect its character natural enhancement in value in sp
-not a result of labor only a result of time
-does not satisfy definition
In re marriage of Elam
-3 estates involved: husband SP, wife SP, and CP
-family home wife SP
-used CP funds to improve
-husband argued the home was CP now that they co-mingled
-Issue: when one estate contributes to another estate, what happens?
-rights of reimbursement arises in favor of the contributing estate
-character of underlying property does not change
-arises an equitable lien
-did not change it into CP, gives right to reimbursement
-was given 50% of the CP appreciation
-better to have all receipts, burden on person with equitable lien to prove where the money came from to improve the house
In re marriage of Johnson
-home: husband's SP
-CP funds used to make mortgage payments, minor improvements on home, no appreciation in value
-no proportional CP interest because no increase in value
In re marriage of Miracle
-similar to Johnson
-some value change due to market and improvements
-no equitable lien if non-owner spouse received benefits from use of property
-termed offset or reciprocal benefit
-reasoning complaining party received a compensating benefit a place to live
Gifts
-improvements
-made with donative intent, then no right of reimbursement arises for donor
Summary of CP value increase/contributions
-appreciation
-pure appreciation only
-appreciation assumes character of underlying asset
-appreciation due contributions
-prorate portion of the appreciation to the estate making the contribution
Equitable Lien
-right to receive some sum of money when the property is sold
-does not create an estate or property action
-provides no possessory action
2 Approaches to this:
1. Debt
-treats the amount as ordinary debt subject to interest
-interest paid
2. Equity
-assumes management implies right of each spouse to improve the property with property of another character
-by doing so spouse invests in property and is entitled to a share of appreciation depreciation upon sale
-means no interest paid but share gain and loss
In re marriage of Mudgett
-on divorce home awarded to wife subject to equitable lien in favor of husband
-husband sought declaratoy judgment requiring wife to sell home or pay him off for lien
-held as decree was not ambiguous, wife could sell when she wished not before
Sourcing/Tracing
-Property takes character of whatever was used to acquire it
-meaning if SP money is used to buy, it is SP
-if it was CP money to use it, it is CP
-WA: Character derives from earliest significant event
-when there is a long relationship it tends to all fall to CP
Joint Tenancy v. CP
-CP: title reads Joe and Mary Smith as husband and wife
-JT: title read Joe Smith and Mary Smith as joint tenants with right of survivorship
Community Property
-each spouse owns one half interest in property
-subject to probate
Joint Tenancy WRS
-parties each own undivided one half interest in the property
-upon death of one, the ownership of property is instantaneously vested in the survivor not subject to probate
Community Property Joint Tenancy
Interest 1/2 devisable undivided one half not
Death of one subject to probate not subject to probate
Dissolution subject to award court does not have jurisdiction, no award
Income tax capital gain likely none capital gain, avoid only on descendant share
Income Tax Implications
-Capital Gain Tax
-Stepped up basis on death
-person who inherits takes the property at its present value rather than historical value thus eliminating any capital gain
-Joint tenancy
-surviving spouse takes decedents undivided one half interest at stepped up basis
-share held by surviving spouse is not taken at stepped up basis thus it is subject to capital gains tax
Creating Joint Tenancy with right of survivorship
-joint not enough
-joint tenancy may work
-need to be clear and use all the words
Process of Characterization
-look at acquisition
-date, transmuted, gifted?
-look at title
-if none apply: takes character of asset used to acquired
Co-Mingling
-separate assets so intertwined with community assets that it is impossible to trace them
-likely to be CP
Special Considerations
-interest in partnerships
- PTP 2 parts
1. rights of management, inspection cannot be derogated to another
2. rights to receive pro rata share of profits and loss can be derogated to another
Goodwill CP
In re Marriage Fleege-Goodwill
-goodwill of spouse's professional practice must be taken into account in dividing assets or spouses on dissolution
-intangible asset
-transferability of spouse's services is not part of the valuation determination in dissolution
Factors
-age, health, past earning power, reputation, skill, knowledge, comparative, education
Assignment
project 2
April 13, 2010
NEWS
Planning to makeup the class online with a quiz
-will get back to us on the details
-Judi's lectures will be available by request
---------------------------------------------------------------
Characterization of Property
-definitive in nature
-divorce, estate transition
-1869 became a statute
Why characterization of property?
-more equitable for the parties involved
-marketing tool
-trying to get women out into the west coast
-worked, meant women got to keep their property for the work they did
-rights
-devise what we own
-award on dissolution who owns what in what capacity
-management & control of property
-rights of creditors
-tort liability
Characterization Schemes
-basically 2
1. Separate property states
-you only have separate property
2. Community property states
-9 states
-AZ, CA, ID, LA, NV, NM, TX, WA, WI
-each is different
-you have both separate and community
Community Property
-property that is acquired onerously by a married couple domiciled in a community property state
-need to break down each word and piece
-property means anything you own
-onerously means "to labor" working in some fashion for it
-married couple you must be married
-domiciled in the state
-WA 1st enacted in 1869
-unchanged till 1972 (amended to establish equality of management)
-the right to manage and control the property was vested with the husband and now it was set for both
-modeled on CA statute
-doesn't come from English Common law
-comes from Spanish law
WA Statutes - Separate Property
-How does WA define Separate Property?
-RCW 26.16.010
-before the marriage it was separate
-limited ways to get separate property after marriage
-inheritance, gift, death
WA Statutes - Community Property
-How does WA define Community Property?
-RCW 26.16.030
-"waste basket approach"
-everything leftover goes into this pile
Characterization
-process by which separate property is distinguished from community property
-must be married to have community property
-in married
-community property
-separate property of each spouse
-includes joint ownership owned by one party as his/her separate property
-joint tenancy with rights to survivorship
-tenancy in common
Management and Control
-right to use, transfer, abandon, lease, expend, assign, create a security interest in, mortgage, dispose of, institute or defend a legal action regarding, buy, consume, exchange, encumber, sell, donate, dictate the manner by which the property will or will not be used
Who manages the community property?
-1972 both spouses
-RCW 26.16.030
-both spouses signature to acquire, sell, gift, encumber, assign
Can character be changed?
-yes
-transmutation
-separate to community requires a community property agreement
-bilateral by contract
-formalities required
-prenup, post nup
-writing signed by both parties, some states, acknowledgement and recording
-consideration
-marriage sufficient for prenup but post nup
-undue influence
-confidential relationship of fairness and good faith
-public policy
-if it contemplates divorce in past held to violate public policy
-unilateral by gift
Unilateral Gifts
-gift separate property to community possible in all 9 states
-gift from community to separate possible in some states
-it is in WA
WA Statutes Wills
-How much can each spouse devise or bequeath?
-RCW 26.16.030(1)
-no more than one-half
Can one spouse give away community property?
-RCW 26.16.030
Can one spouse give his or her interest in the community property to the other spouse?
-RCW 26.16.050
-full half or that is it
position on gifting community property to other spouse
Middle position
-person property can do this orally
-realty must be done in writing
Determine what is separate property
-focus is on acquisition date
-before marriage is separate
-during marriage
Problem
-what about the increase in value during marriage?
-rents profits
Guye v. Guye
-property appreciation during marriage was acquired before marriage and thus cp
-court analogized appreciation to rents, profits which remain SP and half that is SP
-mere change in asset's value does not affect its character natural enhancement in value in sp
-not a result of labor only a result of time
-does not satisfy definition
In re marriage of Elam
-3 estates involved: husband SP, wife SP, and CP
-family home wife SP
-used CP funds to improve
-husband argued the home was CP now that they co-mingled
-Issue: when one estate contributes to another estate, what happens?
-rights of reimbursement arises in favor of the contributing estate
-character of underlying property does not change
-arises an equitable lien
-did not change it into CP, gives right to reimbursement
-was given 50% of the CP appreciation
-better to have all receipts, burden on person with equitable lien to prove where the money came from to improve the house
In re marriage of Johnson
-home: husband's SP
-CP funds used to make mortgage payments, minor improvements on home, no appreciation in value
-no proportional CP interest because no increase in value
In re marriage of Miracle
-similar to Johnson
-some value change due to market and improvements
-no equitable lien if non-owner spouse received benefits from use of property
-termed offset or reciprocal benefit
-reasoning complaining party received a compensating benefit a place to live
Gifts
-improvements
-made with donative intent, then no right of reimbursement arises for donor
Summary of CP value increase/contributions
-appreciation
-pure appreciation only
-appreciation assumes character of underlying asset
-appreciation due contributions
-prorate portion of the appreciation to the estate making the contribution
Equitable Lien
-right to receive some sum of money when the property is sold
-does not create an estate or property action
-provides no possessory action
2 Approaches to this:
1. Debt
-treats the amount as ordinary debt subject to interest
-interest paid
2. Equity
-assumes management implies right of each spouse to improve the property with property of another character
-by doing so spouse invests in property and is entitled to a share of appreciation depreciation upon sale
-means no interest paid but share gain and loss
In re marriage of Mudgett
-on divorce home awarded to wife subject to equitable lien in favor of husband
-husband sought declaratoy judgment requiring wife to sell home or pay him off for lien
-held as decree was not ambiguous, wife could sell when she wished not before
Sourcing/Tracing
-Property takes character of whatever was used to acquire it
-meaning if SP money is used to buy, it is SP
-if it was CP money to use it, it is CP
-WA: Character derives from earliest significant event
-when there is a long relationship it tends to all fall to CP
Joint Tenancy v. CP
-CP: title reads Joe and Mary Smith as husband and wife
-JT: title read Joe Smith and Mary Smith as joint tenants with right of survivorship
Community Property
-each spouse owns one half interest in property
-subject to probate
Joint Tenancy WRS
-parties each own undivided one half interest in the property
-upon death of one, the ownership of property is instantaneously vested in the survivor not subject to probate
Community Property Joint Tenancy
Interest 1/2 devisable undivided one half not
Death of one subject to probate not subject to probate
Dissolution subject to award court does not have jurisdiction, no award
Income tax capital gain likely none capital gain, avoid only on descendant share
Income Tax Implications
-Capital Gain Tax
-Stepped up basis on death
-person who inherits takes the property at its present value rather than historical value thus eliminating any capital gain
-Joint tenancy
-surviving spouse takes decedents undivided one half interest at stepped up basis
-share held by surviving spouse is not taken at stepped up basis thus it is subject to capital gains tax
Creating Joint Tenancy with right of survivorship
-joint not enough
-joint tenancy may work
-need to be clear and use all the words
Process of Characterization
-look at acquisition
-date, transmuted, gifted?
-look at title
-if none apply: takes character of asset used to acquired
Co-Mingling
-separate assets so intertwined with community assets that it is impossible to trace them
-likely to be CP
Special Considerations
-interest in partnerships
- PTP 2 parts
1. rights of management, inspection cannot be derogated to another
2. rights to receive pro rata share of profits and loss can be derogated to another
Goodwill CP
In re Marriage Fleege-Goodwill
-goodwill of spouse's professional practice must be taken into account in dividing assets or spouses on dissolution
-intangible asset
-transferability of spouse's services is not part of the valuation determination in dissolution
Factors
-age, health, past earning power, reputation, skill, knowledge, comparative, education
Assignment
project 2
Friday, April 9, 2010
April 8th Notes
Business Law
April 8, 2010
Contract Law
Formation and Legality
Class 2
Projects:
-Write the best non-compete clause for your point of view
-Liquidated damages clause, restitution damages
(concern with the terms)
Contracts
-balances risk assessment
-preventative type of law
-needs to be clear and terms agreed upon
-damages are different under contracts rather than tort
-the duty of government is to prevent crime and preserve contracts
-plea bargain
-pre-nups, parenting plan, settlement agreements, consumer transactions (anything you buy)
What is a contract?
-promise that the law will enforce
-is there an agreement?
-is it legal?
-did the parties have the capacities to contract?
-is the contract ambiguous? if it is, they will try to interpret the intent of the parties
context rules
-looking outside of the contract to see how ambiguous it is
Restatement of Contracts: clarifies the law
What does a contract do?
-establish the terms of the parties relationship
-goal is to accurately memorialize the business deal
-reflects the parties agreement as the rules that will govern the transaction
What are the usual rules?
-statement of material facts
-promise to future performance
-each party's rights
-conditions
-discretionary authority
-how the contract will end
-general policies that govern the relationship
Sources of Contract Law
-Common Law
-Importance of the Restatement (good book for guidance)
-can use Westlaw, digest or encyclopedias to get contract interpretation
-Constitution
article 1 section 10
-no state should pass a law to impair contracts
-fundamental rights recognized in both state and federal constitution
-Uniform Commercial Code
-article 2 (RCW 62A.2-)
Types of Contracts
-bilateral or unilateral
-express or implied
-executory or executed
-document has been executed by signing
-once the obligations are concluded
Making a Contract
1. an agreements
- offer and acceptance of the offer, meeting of the minds
2. consideration
3. contractual capacity
4. legality
The Offer
-promise to do (or not do) something in the future
-requirements
-offeror's serious intention
-definiteness of terms
-communication
Definite Terms
-terms (expressed or implied) that must be included in the offer
-parties
-subject matter
-considerations (usually price)
time for performance
Equitable Contracts
1. Promissory Estoppel
-defendant made a statement knowing that the plaintiff would likely rely on it
-plaintiff did rely on it
-to his detriment
-justice requires the statement to be enforced
2. Quasi Contracts
1. plaintiff gave some benefit to the defendant
2. Reasonably expected to be paid
3. defendant would be unjustly enriched in plaintiff is not paid
Communication of Offer
-must be communicated in some way
-once communicated it is a contract
Termination of Offer
-before it is accepted
-action of either party
-or operation of law
Acceptance
-accept
-reject
-counteroffer
-silence is not acceptance
Mirror Image Rule
-offeree acceptance match the offeror's exactly or it is rejected or a counteroffer
UCC 2-207
Timelines
-Mailbox rule
-acceptance is effective on dispatch, provided an authorization method of communication is properly used
-However the offeror may specify how and when acceptance should be made
Consideration
-a bargained for exchange wach side is inducing the other to agree
-the thing bargained for can be a promise or action
-The thing bargained for can be a benefit to the promisor or a detriment to the promisee.
Hamer v. Sidway
Adequacy of Consideration
-court will generally not weigh the value of the promise
-if the parties with the bargain initially then the value of the bargain will not be considered by a court
-must be aware of preexisting duty
Gifts
-not supported by consideration
-can be revoked at any time before the gift is given
Legality of the Contract
-illegal contract is void
-contract is illegal is:
violates a federal/state statute
violates public policy
Applicable Statutes
-many statutes expressly prohibit certain contracts or contract terms
-some of these are
-gambling statutes
-insurance statutes
-usury statutes
-consumer protection statutes
-statutes protecting vulnerable individuals
Gambling in WA
-authorized or criminalized in RCW 9.46
-some are authorized
-some bingo, fishing derby, state lottery
-Tribal Gaming
-29 federally recognized tribes with own system
Insurance
-life insurance
-requires insured to have an insurable interest in the subject of the policy
-need some kind of interest in the life of the other person
Usurious Contracts
-usury laws prohibit charging excess interest on loans
-excess interest is generally defined in the statute
-statute is RCW 19.52
RCW 19.52.030 permits enforcement of usury contracts
Licensing statutes
-statues to protect the public
-only for practitioners/providers for licensed, can enforce a contractual
-regulatory or revenue statutes
-contract with an unlicensed individual is generally enforceable
Public Policy Violations
-a court may refuse to enforce a contract if, based on common law, principles it violates
Restraint of Trade
-restraint of trade are usually unenforceable
Free trade is the basis of the American economy and any bargain not to compete is suspect and, generally, unenforceable. There are two common exceptions:
Sale of a business
Employment
Sale of Business
-the buyer may as the seller to agree not to compete with the business if it is reasonable
The buyer of an existing business may ask the seller to agree not to compete with the business. This agreement is enforceable if it is reasonable:
In Time
Geographic Area
Scope of Activity
Employment Clauses
A noncompetition clause in a contract for employment is generally enforceable if it is essential to the employer, fair to the employee, and harmless to the general public.
Washington Law
Washington courts will enforce noncompete clauses if they are validly formed (i.e., supported by consideration), are of legitimate concern to employer’s business, and are reasonable as to
Time
Geographic limits
Scope of Activity
Labriola v. Pollard Group, Inc., 152 Wn.2d 828 (2004)
Exculpatory Clauses
Basically a contract that releases one of the parties from liability if the other party is injured.
Generally unenforceable only if:
Attempts to avoid liability for intentional torts or gross negligence
Parties have greatly disparate bargaining power
Clause is not clearly written or visible
Exculpatory Clauses
Exculpatory clauses in contracts for bailments are generally enforceable - if they are reasonable, clear and obvious
Unconscionable Contract
An unconscionable contract is one that the court refuses to enforce because of fundamental unfairness.
A contract is unconscionable if it one that “no man in his senses and not under delusion would make . . . and no honest and fair man would accept.”
Contract Drafting
Goals:
Accurately state the business deal
Be clear and unambiguous
Resolve problems in a practical way
Be sufficiently specific
Include the client’s goals and reduce its risks
Prevent litigation
-Assignment
--best non-compete clause you could get
Buyers or Sellers
April 8, 2010
Contract Law
Formation and Legality
Class 2
Projects:
-Write the best non-compete clause for your point of view
-Liquidated damages clause, restitution damages
(concern with the terms)
Contracts
-balances risk assessment
-preventative type of law
-needs to be clear and terms agreed upon
-damages are different under contracts rather than tort
-the duty of government is to prevent crime and preserve contracts
-plea bargain
-pre-nups, parenting plan, settlement agreements, consumer transactions (anything you buy)
What is a contract?
-promise that the law will enforce
-is there an agreement?
-is it legal?
-did the parties have the capacities to contract?
-is the contract ambiguous? if it is, they will try to interpret the intent of the parties
context rules
-looking outside of the contract to see how ambiguous it is
Restatement of Contracts: clarifies the law
What does a contract do?
-establish the terms of the parties relationship
-goal is to accurately memorialize the business deal
-reflects the parties agreement as the rules that will govern the transaction
What are the usual rules?
-statement of material facts
-promise to future performance
-each party's rights
-conditions
-discretionary authority
-how the contract will end
-general policies that govern the relationship
Sources of Contract Law
-Common Law
-Importance of the Restatement (good book for guidance)
-can use Westlaw, digest or encyclopedias to get contract interpretation
-Constitution
article 1 section 10
-no state should pass a law to impair contracts
-fundamental rights recognized in both state and federal constitution
-Uniform Commercial Code
-article 2 (RCW 62A.2-)
Types of Contracts
-bilateral or unilateral
-express or implied
-executory or executed
-document has been executed by signing
-once the obligations are concluded
Making a Contract
1. an agreements
- offer and acceptance of the offer, meeting of the minds
2. consideration
3. contractual capacity
4. legality
The Offer
-promise to do (or not do) something in the future
-requirements
-offeror's serious intention
-definiteness of terms
-communication
Definite Terms
-terms (expressed or implied) that must be included in the offer
-parties
-subject matter
-considerations (usually price)
time for performance
Equitable Contracts
1. Promissory Estoppel
-defendant made a statement knowing that the plaintiff would likely rely on it
-plaintiff did rely on it
-to his detriment
-justice requires the statement to be enforced
2. Quasi Contracts
1. plaintiff gave some benefit to the defendant
2. Reasonably expected to be paid
3. defendant would be unjustly enriched in plaintiff is not paid
Communication of Offer
-must be communicated in some way
-once communicated it is a contract
Termination of Offer
-before it is accepted
-action of either party
-or operation of law
Acceptance
-accept
-reject
-counteroffer
-silence is not acceptance
Mirror Image Rule
-offeree acceptance match the offeror's exactly or it is rejected or a counteroffer
UCC 2-207
Timelines
-Mailbox rule
-acceptance is effective on dispatch, provided an authorization method of communication is properly used
-However the offeror may specify how and when acceptance should be made
Consideration
-a bargained for exchange wach side is inducing the other to agree
-the thing bargained for can be a promise or action
-The thing bargained for can be a benefit to the promisor or a detriment to the promisee.
Hamer v. Sidway
Adequacy of Consideration
-court will generally not weigh the value of the promise
-if the parties with the bargain initially then the value of the bargain will not be considered by a court
-must be aware of preexisting duty
Gifts
-not supported by consideration
-can be revoked at any time before the gift is given
Legality of the Contract
-illegal contract is void
-contract is illegal is:
violates a federal/state statute
violates public policy
Applicable Statutes
-many statutes expressly prohibit certain contracts or contract terms
-some of these are
-gambling statutes
-insurance statutes
-usury statutes
-consumer protection statutes
-statutes protecting vulnerable individuals
Gambling in WA
-authorized or criminalized in RCW 9.46
-some are authorized
-some bingo, fishing derby, state lottery
-Tribal Gaming
-29 federally recognized tribes with own system
Insurance
-life insurance
-requires insured to have an insurable interest in the subject of the policy
-need some kind of interest in the life of the other person
Usurious Contracts
-usury laws prohibit charging excess interest on loans
-excess interest is generally defined in the statute
-statute is RCW 19.52
RCW 19.52.030 permits enforcement of usury contracts
Licensing statutes
-statues to protect the public
-only for practitioners/providers for licensed, can enforce a contractual
-regulatory or revenue statutes
-contract with an unlicensed individual is generally enforceable
Public Policy Violations
-a court may refuse to enforce a contract if, based on common law, principles it violates
Restraint of Trade
-restraint of trade are usually unenforceable
Free trade is the basis of the American economy and any bargain not to compete is suspect and, generally, unenforceable. There are two common exceptions:
Sale of a business
Employment
Sale of Business
-the buyer may as the seller to agree not to compete with the business if it is reasonable
The buyer of an existing business may ask the seller to agree not to compete with the business. This agreement is enforceable if it is reasonable:
In Time
Geographic Area
Scope of Activity
Employment Clauses
A noncompetition clause in a contract for employment is generally enforceable if it is essential to the employer, fair to the employee, and harmless to the general public.
Washington Law
Washington courts will enforce noncompete clauses if they are validly formed (i.e., supported by consideration), are of legitimate concern to employer’s business, and are reasonable as to
Time
Geographic limits
Scope of Activity
Labriola v. Pollard Group, Inc., 152 Wn.2d 828 (2004)
Exculpatory Clauses
Basically a contract that releases one of the parties from liability if the other party is injured.
Generally unenforceable only if:
Attempts to avoid liability for intentional torts or gross negligence
Parties have greatly disparate bargaining power
Clause is not clearly written or visible
Exculpatory Clauses
Exculpatory clauses in contracts for bailments are generally enforceable - if they are reasonable, clear and obvious
Unconscionable Contract
An unconscionable contract is one that the court refuses to enforce because of fundamental unfairness.
A contract is unconscionable if it one that “no man in his senses and not under delusion would make . . . and no honest and fair man would accept.”
Contract Drafting
Goals:
Accurately state the business deal
Be clear and unambiguous
Resolve problems in a practical way
Be sufficiently specific
Include the client’s goals and reduce its risks
Prevent litigation
-Assignment
--best non-compete clause you could get
Buyers or Sellers
Thursday, April 8, 2010
April 7th Notes
Complex Litigation
April 7, 2010
Insurance
I. Terminology
II. Coverage/Exclusions
III. Types of Insurance
IV. Insurer's Duties & Bad Faith
Terminology
Insured/Assured
-the shifter of risks, the person who took out the policy shifts the risk to someone else
Insurer/Assurer
-the entity that bares the risk
Premium
-the consideration, what the insurer gets for taking the risk
Deductible
-the amount of risk that the insured retains, controls the premium costs
Proceeds
-what you are paid, the benefit paid under the policy
Beneficiary
-the person who gets the proceeds from the policy, usually the insured the exception is life insurance where the insured is dead
Occurrence
-the loss you are insuring against
Sudden/Accidental
-what the occurrence has to be in order to be covered, can not be on purpose
Claim
-demand so proceeds
Insurable Interest
-who you are allowed to insure, it must be of interest to you
-contracts are always construed against the party who drafted it
Proof of Loss
-submit proof that the loss occurred to the insurer, document what you insure
-receipts, video tape, appraisals
EUO
-examination under oath to prove what you lost
Cancellation
-to voluntary terminate the policy by the insured
Lapse
-if the insured stops paying the policy
-this goes on your credit
Coverage
-what losses trigger the insurance to pay
Types of Insurance
AUTO:
Liability
-insurance required by law
-pays the other party if you have an accident that is your fault
UM/UIM
-uninsured motorist
-under-insured motorist
-they are merged now, covers you and the occupants from the negligence of others that don't have insurance
Comprehensive
-covers the vehicle only and only for non-operational losses, that don't arrive from collisions
Collision
-operational losses, other vehicles, objects
PIP/Med. Pay
-both will pay your medical bills and all occupants of your vehicle, Med pay does not pay for your work loss, but PIP does pay your wage losses
Splits
-how much the insurance will pay any one person (single limit) / what they will pay for the entire accident (aggregate limit)
-25/50, 50/100, 100/300
Deductible
-get the deductible at a high enough rate you can handle
-raise to $1000 if they will let you
PERSONAL PROPERTY
-covers personal property not the location of the property
-auto does not cover the contents of the vehicle ever
-there are limits on items attractive to thieves (usually only $1000 max)
Top Items
1. Jewelry
2. Silver
3. Guns
4. Cash/Coins
5. Furs
-scheduled: use this cover unique items you want to cover
Indemnity Contract
-insurance pays the loss not the face value of the policy it is different for life insurance, there you get the face value
Two types of coverage for personal property
1. Replacement Coverage
-better of the two, if it is stolen it will be replaced by like, kind and quality
2. ACV Coverage
-actual cash value, pay you what the item is worth now
Marine
-goods in shipping are covered around since 1500's, the goods and the profit you will make on the goods
Title
-in real property, policy insuring you are the owner of real property
Inland Marine (CGL)
-covers a business, comprehensive general liability coverage, will also cover lost profit of your business, pollution losses are not covered
Subrogation
-paid a claim, tendered the proceeds, they acquire all the rights the insured have, the insurer steps into the rights of the insured and can now sue
Increase of Hazard
-the risk increases depending on the item insured, like a new car
PUP
-personal umbrella policy, cover you and all your additional policies as well
-extra layer of coverage on all of your other policies
-usually sold in million dollar amounts
-requirement is maximum auto insurance
-cheap to own too
E&O
-errors and omissions, malpractice for professionals
Life
-betting on your death, depends on who cares if you die
1. Whole Life: ordinary or straight life
-sets a premium and never changes
2. Term:
-sets premium at a year of a time
-get it when you need it, young and when you need it
Renter's Insurance
-includes personal liability part, personal property, most landlords do not cover the tenants only the building
Grace Period
-additional time after the expiration of a policy to renew, if you have a loss during this period, you are not covered
Defend/Indemnify
-defend meaning that if you cause an action to get sued, they will defend you
-indemnify meaning they will make you whole for the loss you suffered
-do they have a duty to defend or indemnify?
-reservation of rights, not sure if they have a duty here, they are investigating option
-declaratory relief, they sue you to get a declaration they have no duty
Bad Faith/Fiduciary Duty
-they have a fiduciary duty to their insurers, highest utmost duty and good faith, putting other party interest on par or ahead of your own
-bad faith: when that duty is violated, the penalty is to pay the full amount of the policy
Complex Litigation
-one of more related cases that present unusual problems and require extraordinary treatment particularly if they are large or protracted
-large case has multiple parties, multiple related cases, multiple jurisdictions or all three
Annoted Manual for Complex Litigation Book
Additional grants of power to the judge
FRCP 16
FRCP 26
FRCP 37
FRCP 42
FRCP 83
FRCP 53 Special masters to discovery
Important case on judge's power to meet the needs of complex litigation
Chambers v. NASCO
111 SCt 2123, 2132-37 (1991)
-Pretrial conference there is a meeting even if you have not been served yet, its done aggressively
-scheduling order in 120 days of service
-judge plays an active roll, have enormous power to award sanctions
11(a)(1)(B)
-recommend disbarring if they are not fully cooperative
RPC 8.4(d)
DR 1-102(A)(5)
-what the lawyers can run into for
There are many lawyers and they are broken into groups:
Lead Counsel (top attorney)
-formulate positions of all the lawyers
Liaison Counsel
-to work with the court about scheduling and accommodating, contact between court and the other lawyers
Trial Counsel
-actually trying the case
Committee (Steering)
-other groups, getting them centralized
Rule 12 motions are discouraged
-challenges to the pleadings, takes too much time
-love joint briefs, less reading streamline
Rule 56
-summary judgments are great since they streamline
Rule 26
-discovery, limits and control on discovery
-is the discovery pivotal? if yes, its okay
depository: where they keep all the discovery, one central location
contention interrogatories
-like them since they find out the issues quickly
depositions
-encourages to skip and do informal interviews instead
-like telephone depositions
-conference deposition: deposing multiple parties all together
-representative deposition: one person speaks for all
-multi track depositions: going on all over simultaneously
April 7, 2010
Insurance
I. Terminology
II. Coverage/Exclusions
III. Types of Insurance
IV. Insurer's Duties & Bad Faith
Terminology
Insured/Assured
-the shifter of risks, the person who took out the policy shifts the risk to someone else
Insurer/Assurer
-the entity that bares the risk
Premium
-the consideration, what the insurer gets for taking the risk
Deductible
-the amount of risk that the insured retains, controls the premium costs
Proceeds
-what you are paid, the benefit paid under the policy
Beneficiary
-the person who gets the proceeds from the policy, usually the insured the exception is life insurance where the insured is dead
Occurrence
-the loss you are insuring against
Sudden/Accidental
-what the occurrence has to be in order to be covered, can not be on purpose
Claim
-demand so proceeds
Insurable Interest
-who you are allowed to insure, it must be of interest to you
-contracts are always construed against the party who drafted it
Proof of Loss
-submit proof that the loss occurred to the insurer, document what you insure
-receipts, video tape, appraisals
EUO
-examination under oath to prove what you lost
Cancellation
-to voluntary terminate the policy by the insured
Lapse
-if the insured stops paying the policy
-this goes on your credit
Coverage
-what losses trigger the insurance to pay
Types of Insurance
AUTO:
Liability
-insurance required by law
-pays the other party if you have an accident that is your fault
UM/UIM
-uninsured motorist
-under-insured motorist
-they are merged now, covers you and the occupants from the negligence of others that don't have insurance
Comprehensive
-covers the vehicle only and only for non-operational losses, that don't arrive from collisions
Collision
-operational losses, other vehicles, objects
PIP/Med. Pay
-both will pay your medical bills and all occupants of your vehicle, Med pay does not pay for your work loss, but PIP does pay your wage losses
Splits
-how much the insurance will pay any one person (single limit) / what they will pay for the entire accident (aggregate limit)
-25/50, 50/100, 100/300
Deductible
-get the deductible at a high enough rate you can handle
-raise to $1000 if they will let you
PERSONAL PROPERTY
-covers personal property not the location of the property
-auto does not cover the contents of the vehicle ever
-there are limits on items attractive to thieves (usually only $1000 max)
Top Items
1. Jewelry
2. Silver
3. Guns
4. Cash/Coins
5. Furs
-scheduled: use this cover unique items you want to cover
Indemnity Contract
-insurance pays the loss not the face value of the policy it is different for life insurance, there you get the face value
Two types of coverage for personal property
1. Replacement Coverage
-better of the two, if it is stolen it will be replaced by like, kind and quality
2. ACV Coverage
-actual cash value, pay you what the item is worth now
Marine
-goods in shipping are covered around since 1500's, the goods and the profit you will make on the goods
Title
-in real property, policy insuring you are the owner of real property
Inland Marine (CGL)
-covers a business, comprehensive general liability coverage, will also cover lost profit of your business, pollution losses are not covered
Subrogation
-paid a claim, tendered the proceeds, they acquire all the rights the insured have, the insurer steps into the rights of the insured and can now sue
Increase of Hazard
-the risk increases depending on the item insured, like a new car
PUP
-personal umbrella policy, cover you and all your additional policies as well
-extra layer of coverage on all of your other policies
-usually sold in million dollar amounts
-requirement is maximum auto insurance
-cheap to own too
E&O
-errors and omissions, malpractice for professionals
Life
-betting on your death, depends on who cares if you die
1. Whole Life: ordinary or straight life
-sets a premium and never changes
2. Term:
-sets premium at a year of a time
-get it when you need it, young and when you need it
Renter's Insurance
-includes personal liability part, personal property, most landlords do not cover the tenants only the building
Grace Period
-additional time after the expiration of a policy to renew, if you have a loss during this period, you are not covered
Defend/Indemnify
-defend meaning that if you cause an action to get sued, they will defend you
-indemnify meaning they will make you whole for the loss you suffered
-do they have a duty to defend or indemnify?
-reservation of rights, not sure if they have a duty here, they are investigating option
-declaratory relief, they sue you to get a declaration they have no duty
Bad Faith/Fiduciary Duty
-they have a fiduciary duty to their insurers, highest utmost duty and good faith, putting other party interest on par or ahead of your own
-bad faith: when that duty is violated, the penalty is to pay the full amount of the policy
Complex Litigation
-one of more related cases that present unusual problems and require extraordinary treatment particularly if they are large or protracted
-large case has multiple parties, multiple related cases, multiple jurisdictions or all three
Annoted Manual for Complex Litigation Book
Additional grants of power to the judge
FRCP 16
FRCP 26
FRCP 37
FRCP 42
FRCP 83
FRCP 53 Special masters to discovery
Important case on judge's power to meet the needs of complex litigation
Chambers v. NASCO
111 SCt 2123, 2132-37 (1991)
-Pretrial conference there is a meeting even if you have not been served yet, its done aggressively
-scheduling order in 120 days of service
-judge plays an active roll, have enormous power to award sanctions
11(a)(1)(B)
-recommend disbarring if they are not fully cooperative
RPC 8.4(d)
DR 1-102(A)(5)
-what the lawyers can run into for
There are many lawyers and they are broken into groups:
Lead Counsel (top attorney)
-formulate positions of all the lawyers
Liaison Counsel
-to work with the court about scheduling and accommodating, contact between court and the other lawyers
Trial Counsel
-actually trying the case
Committee (Steering)
-other groups, getting them centralized
Rule 12 motions are discouraged
-challenges to the pleadings, takes too much time
-love joint briefs, less reading streamline
Rule 56
-summary judgments are great since they streamline
Rule 26
-discovery, limits and control on discovery
-is the discovery pivotal? if yes, its okay
depository: where they keep all the discovery, one central location
contention interrogatories
-like them since they find out the issues quickly
depositions
-encourages to skip and do informal interviews instead
-like telephone depositions
-conference deposition: deposing multiple parties all together
-representative deposition: one person speaks for all
-multi track depositions: going on all over simultaneously
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