Handout- #9 Sample Motion + Extra copies of omitted page from handout #7
Review CR 12- will be on Midterm
-All rules mentioned in class should be read through, so that you know where to look for the parts you need on the midterm.
CR 12e - Motion for More Definite Statement
-Motion by D against P for complaint that is so deficient that an intelligent answer is nearly impossible.
-Also called a DEMURRER ("de-mur") in other states. Even if demurrer is sustained, an amendment is generally granted. Can lead to stronger complaint, which may not be to your advantage.
CR 12f- Motion to Strike
-Court may strike any redundant or impertinent or scandalous material from pleadings.
p 188 Failure to Answer CR 55
Options when Complaint is filed-
1. Answer
2. File Motion to Dismiss (CR 12)
3. File a Notice of Appearance
Notice of Appearance
"To the P and to P's counsel, comes now the D by and through his attorney and hereby appears in the action."
-Not an answer, not a challenge, does not stop time period you have to respond.
Default Judgments
A. If you don't answer in 20 days, the other side can take a default. But if they don't default you can answer anytime until they do. You have as much time as you want to answer, provided a motion for default has not been filed. If default has been filed you must ask court for permission to file answer.
B. If you file a Notice of Appearance plaintiff must give defendant five days notice of motion for default. If they've waited a year to file for default, then they must give you 10 days notice of motion for default.
C. Always file Notice of Appearance to insure that you will receive notice of motion for default. If you do not respond to complaint they can get default judgment without notifying you.
D. If you file a Notice of Appearance and you get a motion for default you can still answer the complaint as long as you do so before the motion for default is actually heard.
E. If you do get defaulted, CR 60, Relief from Error, throw yourself on mercy of court. Almost always grant relief, but will likely sanction you (and you will probably lose your job).
-Judges hate default judgments, and will set them aside readily.
-You can get a default without giving notice, but you should give notice, even if they have not filed a notice of appearance.
-Duty to Cooperate Clause- in most Insurance policies- If insured person does not inform insurance company of legal action, insurance will not cover, and you may lose the pocket in your lawsuit.
How to Count CR 6
Four Basic Rules
1.The Day of the Act -or- When do I start counting?
-The day that something is done does not count.
EX John is served Jan. 5th, when is the last day that John can file? (20 days later) 25th
Jan. 5th does not count. Count 20 days beginning on Jan. 6th. The only day that doesn't count is the day that he is served. Count it out on your fingers, best way to be right.
EX Friday hearing. Judge says "have the papers to me 3 days before hearing". What day do you need to have your papers in? Tuesday. (Day of hearing does not count)
2. The 7/11 Rule -or- Do weekends & holidays count?
If the time to do something is less than 7 days, No. STATE- If the time to do something is 7 days or greater, Yes, weekends and holidays count. FEDERAL- If the time to do something is 11 days or greater, weekends and holidays count.
EX Friday hearing. Judge says "have papers to me 7 days before hearing". What day do you need to have your papers in? Friday.
EX Tuesday- File your answer in 5 days. Tuesday.
EX We need to file our response 5 days before the hearing on Friday the 13th. Friday the 6th.
3. The Business Days Rule -or- what if it lands on a non-business day?
If the due date falls on a weekend or holiday (after applying first two rules) it is due the next court day.
4. Post Office Rule -or- When does it need to be mailed?
Add 3 days (calendar days) to deadline, (you have 3 days less). CR 6e
You must mail it while allowing three days for it to arrive within the deadline.
EX Judge says "I want your answer by Friday". You can personally bring the answer on Friday, or mail it Tuesday.
Local Rules- Alphabetical by County
Counties- vary widely
Motion- Request to court for relief of some kind.
CR 7 - Does not define form of motions, state defers to county on form. (Counties cannot make rules that contradict state rules).
- Almost always in writing. Sometimes made orally, called "speaking motions", EX "move to strike". If you anticipate making a motion during the trial, you should have it in written form.
King County Local Rule 7
- Motion- 6 days notice to opponent for motion
- Opposition- 2 court days prior to the hearing by noon- opposition due
EX if motion will be heard on Friday, opposition due Wednesday by noon.
- Reply- 1 court day notice by noon- reply due
- Motion > Opposition > Reply
- Motions to be made in writing unless during trial.
- Motions should be pithy, to the point.
- Oral motions must be DISPOSITIVE (dispose of something- summary judgment, default judgment, motion for dismissal, CR 12b.)
- Motions are a) filed with court, b) to opponent, and c) to judge. (Judges/Working/Chambers copy- generally filed with Judges mailroom.)
Thursday, January 27, 2011
Wednesday, January 26, 2011
1.26.11
Bring LOCAL rules Tomorrow!
Handouts-
#7 Answer/Answer-Counter/Answer-Cross
#8 Affirmative Defenses- Read; Reminds
Tips- A) for long names, use "Herein after referred to as...."
B) Do not confuse multiple incidents of your cause of action, with multiple causes of action. EX Breach of contract in multiple ways.
C) Numbering your complaint. EX page 138, if you number each paragraph in order, then if a cause is dropped there will be holes in numbering. Instead, use 1.1, 1.2, 1.3 & 2.1, 2.2, 2.3 etc. Makes finding sections easier.
Responding to the Complaint
Rule 12, CR 4(d)(2), RCW 4.28.100, RCW 4.16.170
In state court the parties are free to give each other more time to file pleadings. You can give other side an extension, but give deadline- 30 days, etc. Don't leave it open.
Extension to what?
-"answer" You can only file a true Answer.
-"respond" You can file for dismissal, etc. Always ask for an extension to RESPOND.
In Federal Court you must ask court permission for extension.
General Denial
"Defendant denies each and every allegation of plaintiff's complaint." -Not valid in WA
You must respond to each paragraph.
Specific Denial
How do you respond to allegations which you are not sure are true or false? It is ok to deny things that you don't absolutely know are true. BUT you must make a reasonable effort to find the answer.
Qualified Denial-
In instance when you must admit part, and deny part in SAME PARAGRAPH
List things you admit, "and denies all other allegations", do not name the things you deny (if you miss one of them, it is admitted).
EX "Defendant admits that there was an accident, but denies all other allegations."
Otherwise- ALWAYS name the paragraph(s) that you are denying.
EX "Admit paragraph 1, 2, 3. And deny paragraph 4, 5, 6."
Affirmative Defense
Powerful weapon in your answer.
The Big Four
1.The failure to state cause of action,
2. Comparative Negligence- plaintiff's harms are the fault of the plaintiff him/herself
3. Fault of another party, whether named or un-named
4. Failure to mitigate- the harms and damages were caused by the plaintiffs failure to take reasonable precautions to protect him/herself
-Affirmative Defenses- Can be listed anywhere in answer. Easiest to list at the end.
Tips for drafting the answer
-Make a copy! NEVER EVER EVER WRITE ON AN ORIGINAL (or let your lawyer touch an original). (originals will likely be used during trial)
-p171 NOT a form we should use as an example. Use one denial paragraph for each allegation paragraph.
-p172 #2 Add "...and on that basis denied"
Incorporation by Reference p138
How to respond to incorporated paragraphs- "In answer to Paragraph ... defendant admits, denies, and alleges to the same effect and in the same manner as admitted, denied, and alleged to those specific paragraphs previously in this answer."
Counterclaim, Crossclaim, Third Party Defendant CR 13
Contribution
The right of a person who has paid a debt to get back a fair share of the payment from another defendant who is responsible for the debt.
EX Plaintiff sues D1 and D2, and in cross claim between D1 and D2, D1 seeks to be reimbursed if P wins.
p 179 Counterclaim
Will be similar to allegation, same incident.
Must restate for Self Sufficiency (must "stand alone") Must be a complete complaint in and of itself.
Cross Claims
Indemnity- "the other defendant has a duty to fully reimburse me"
Usually business relationship
EX make contract on behalf of employer, or contractors with subcontractor, you may be sued but your employer should be ultimately responsible.
p 181 Cross Claim
Will be similar to allegation, same incident. Must also stand alone.
p182 paragraph 3 Contribution EX "should judgment be assessed against her..."
p 183 Third Party Complaint FRCP 14a/CR 14a
Everything is Different here.
Caption contains all three parties.
Allegations completely different (EX auto accident in which mechanic is brought in)
Challenging the Complaint CR 12
Rule 12b
1. Subject matter jurisdiction
2. Personal jurisdiction
3. Objection to venue
4. Insufficient process (summons incorrect)
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join an indispensable party (CR 19)
CR 12a(1)- 20 days to file
If you don't object to them they are WAIVED (CR 12h)
What do these have in common?
a) 2,3,4,5- protect defendant
b) 1,2,3- wrong court
c) 1,6,7- Never waived. These can be raised at ANY TIME (jurisdiction cannot be conferred)
Handouts-
#7 Answer/Answer-Counter/Answer-Cross
#8 Affirmative Defenses- Read; Reminds
Tips- A) for long names, use "Herein after referred to as...."
B) Do not confuse multiple incidents of your cause of action, with multiple causes of action. EX Breach of contract in multiple ways.
C) Numbering your complaint. EX page 138, if you number each paragraph in order, then if a cause is dropped there will be holes in numbering. Instead, use 1.1, 1.2, 1.3 & 2.1, 2.2, 2.3 etc. Makes finding sections easier.
Responding to the Complaint
Rule 12, CR 4(d)(2), RCW 4.28.100, RCW 4.16.170
In state court the parties are free to give each other more time to file pleadings. You can give other side an extension, but give deadline- 30 days, etc. Don't leave it open.
Extension to what?
-"answer" You can only file a true Answer.
-"respond" You can file for dismissal, etc. Always ask for an extension to RESPOND.
In Federal Court you must ask court permission for extension.
General Denial
"Defendant denies each and every allegation of plaintiff's complaint." -Not valid in WA
You must respond to each paragraph.
Specific Denial
How do you respond to allegations which you are not sure are true or false? It is ok to deny things that you don't absolutely know are true. BUT you must make a reasonable effort to find the answer.
Qualified Denial-
In instance when you must admit part, and deny part in SAME PARAGRAPH
List things you admit, "and denies all other allegations", do not name the things you deny (if you miss one of them, it is admitted).
EX "Defendant admits that there was an accident, but denies all other allegations."
Otherwise- ALWAYS name the paragraph(s) that you are denying.
EX "Admit paragraph 1, 2, 3. And deny paragraph 4, 5, 6."
Affirmative Defense
Powerful weapon in your answer.
The Big Four
1.The failure to state cause of action,
2. Comparative Negligence- plaintiff's harms are the fault of the plaintiff him/herself
3. Fault of another party, whether named or un-named
4. Failure to mitigate- the harms and damages were caused by the plaintiffs failure to take reasonable precautions to protect him/herself
-Affirmative Defenses- Can be listed anywhere in answer. Easiest to list at the end.
Tips for drafting the answer
-Make a copy! NEVER EVER EVER WRITE ON AN ORIGINAL (or let your lawyer touch an original). (originals will likely be used during trial)
-p171 NOT a form we should use as an example. Use one denial paragraph for each allegation paragraph.
-p172 #2 Add "...and on that basis denied"
Incorporation by Reference p138
How to respond to incorporated paragraphs- "In answer to Paragraph ... defendant admits, denies, and alleges to the same effect and in the same manner as admitted, denied, and alleged to those specific paragraphs previously in this answer."
Counterclaim, Crossclaim, Third Party Defendant CR 13
Contribution
The right of a person who has paid a debt to get back a fair share of the payment from another defendant who is responsible for the debt.
EX Plaintiff sues D1 and D2, and in cross claim between D1 and D2, D1 seeks to be reimbursed if P wins.
p 179 Counterclaim
Will be similar to allegation, same incident.
Must restate for Self Sufficiency (must "stand alone") Must be a complete complaint in and of itself.
Cross Claims
Indemnity- "the other defendant has a duty to fully reimburse me"
Usually business relationship
EX make contract on behalf of employer, or contractors with subcontractor, you may be sued but your employer should be ultimately responsible.
p 181 Cross Claim
Will be similar to allegation, same incident. Must also stand alone.
p182 paragraph 3 Contribution EX "should judgment be assessed against her..."
p 183 Third Party Complaint FRCP 14a/CR 14a
Everything is Different here.
Caption contains all three parties.
Allegations completely different (EX auto accident in which mechanic is brought in)
Challenging the Complaint CR 12
Rule 12b
1. Subject matter jurisdiction
2. Personal jurisdiction
3. Objection to venue
4. Insufficient process (summons incorrect)
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join an indispensable party (CR 19)
CR 12a(1)- 20 days to file
If you don't object to them they are WAIVED (CR 12h)
What do these have in common?
a) 2,3,4,5- protect defendant
b) 1,2,3- wrong court
c) 1,6,7- Never waived. These can be raised at ANY TIME (jurisdiction cannot be conferred)
Tuesday, January 25, 2011
1.25.11
Complaint Assignment- complete autonomy to allege theories, change facts, make entities corporations, etc. May have conflicting theories, but not conflicting facts.
-Add anything that you need, do whatever you want with outline
-Don't get ahead of Bruce, don't try to finish the pleadings until we cover the info in class.
Electronic Discovery Night moved to Wednesday night, March 9th.
p. 134
It is not necessary for every plaintiff to sue every defendant on every cause of action. But if you do not distinguish, it is assumed that all P against all D, for particular cause of action.
Costs- May get some costs back, some filing fees, but not expert witnesses, etc. Unless contract or statute entitles you to attorney fees, you won't get those back. Always ask for both anyway.
Legal vs. Equitable Relief
• Equitable- EX Injunction, Specific performance, etc.
If no adequate legal remedies, seek equitable. Is it contradictory to ask for both? Yes, but you may still ask for both. Cannot recover both, but can include both in pleadings.
Injunctions-"stop gap"/"provisional remedies" CR 64-71
• to stop a loss until such time as we can permanently fix it.
Prohibitory Injunction- stop someone from doing something
3 Step Process
1. TRO- Temporary restraining order
• Good for 10-14 days
• Can get one with relative ease
• Ex-parte (without opposition) without knowledge or presence of other party
➢ a) Must show you are facing an irreparable harm
➢ b) Likely to prevail on the merits (show that you are right, EX contract, photo, etc)
➢ c) Bond- you must post bond, if you are wrong, the damage to other party is compensated (usually twice the amount in dispute)
• Judges Hate this process- violates due process, other party not even present
2. Hearing- some evidence presented to judge, perhaps testimony. Make decision as to whether or not the injunction will be continued.
• If it is decided that the TRO was given in right, > Preliminary Injunction
• If it is decided that the TRO was given in error, the court will DISSOLVE the TRO
3. Trial- if in right -permanent injunction (+ monetary damages can be awarded)
p137
How do we know this is Federal Court? United States District Court
How do we know whether Fed Law or Diversity + $? - Common law causes of action
Plaintiff- Hendricks- CA
Defendant- Rice- Nev
Defendant- Paradise Inc- Idaho
Defendant- Forrester- Nev
Incident- Nev
(Home & Hearth location not important, not being sued)
Jurisdiction is proper in which state? Nev or Idaho, not CA (not P residence)
Eerie Railroad- Court will apply law from state in which it sits.
1st Paragraph- lacks citation to law for diversity + $75k in Fed Ct.
Form- Better in include Introduction section for jurisdiction, venue, etc. and keep causes of action in separate section (as in Terri Thomas case EX). Either way is ok.
Fraud-
1. Misrepresentation
2. Of Material Fact
3. Scienter (knowledge) of Falsity
4. Intent to Induce Reliance
5. Reliance
6. Reasonable Reliance
7. Damages
Incorporation by Reference- MEMORIZE
• Every cause of action MUST "stand alone" (unto itself be legally sufficient)
• Every cause of action must have parties, venue + jurisdiction, facts, and relief
• You can literally retype paragraphs 1-7 under each cause of action or incorporate by reference
• Paragraph 11 p138 "Plaintiffs reallege and ...as though set forth at length" Incorporates 1-7 not 8 (which alleges knowledge, which would conflict with negligence)
• Make sure to incorporate all necessary paragraphs, but make sure that they are not conflicting.
• Fiduciary Duty- the highest duty known to man (intentional or not, breach of fiduciary duty)
Critique by Bruce
• Prayer for each cause of action- Good- Can customize relief
• Very bad idea to specify amount of damages- things change, don't set limit
➢ "Damages in an amount to be proven at trial"
Subscriptions
• Signature, including bar #, etc. at end
• No rule as to order of parts, any order is fine, but it should make sense. Tell a story.
• All things alleged in complaint should be true.
The Request for a Jury CR 38b
• You have 10 days after service of the last pleading.
• What is the last pleading? Amended pleading, Answer. NEVER complaint/crossclaim (each gets an answer)
Verifications
• Verified complaints- rare, risky (requires verified answer)
Exhibits
• Rare on complaints (except commercial litigation, where documents are subject of dispute, EX contracts, claim statutes, etc.)
• Plaintiffs - use Letters for exhibits A,B,C
• Defendants - use Numbers for exhibits 1,2,3
Filing the complaint = going to court and filing it with the court
Take with you:
• a. Check
• b. Cover Sheet
• c. Complaint
• Give to clerk, stamp as filed, stamp with docket #, court keeps original
• Bring COPIES for conforming (those additional copies which are stamped, one for serving, one to file, take at least three)
Summons- inform defendant of lawsuit (procedural due process) CR 4
• Four Types of Service
➢ 1. Personal Service- must verify identity, not necessary to actually touch defendant
• At least 3 separate attempts (different times, different days)
➢ 2. Substitute Service of Process
• House of usual abode
• Suitable age and discretion
• Who resides there
• Must also mail a copy
➢ 3. Service by Publication
• Publication of general circulation
• Constructive notice- not actual notice
• Tips- assume it will be challenged, file a Motion for Service by Publication, will need to show due diligence. May still be challenged, but improves chance to survive challenge.
• More time for defendant to answer complaint, 60 days
➢ 4. Service by Mail CR 4d(4)
• 90 days to answer
➢ If you don't use personal service you are in trouble.
➢ No summons on Crossclaim or Counterclaim. But on third party Yes.
➢ Trick- send roses, women almost always open door.
How to serve the State of Washington
➢ Attorney General - Rob Mckenna
➢ Or Assistant Attorney General- must be served in office
Non-Washington Domiciliary
• Long Arm Statute
Defendant of Foreign Country 4i(1)
• in the manner prescribed by the law of the foreign country
Statute of Limitations 4.16.170
How long do you have to serve a complaint? 90 days in WA, 120 FED
Don't serve in time, filing elapses, may refile provided statute has not run.
Return of Service
• server must file proof of service, verifying proper service
Waiver of Service
• Federal Only
• Call and ask to waive, if so they get more time to answer.
-Add anything that you need, do whatever you want with outline
-Don't get ahead of Bruce, don't try to finish the pleadings until we cover the info in class.
Electronic Discovery Night moved to Wednesday night, March 9th.
p. 134
It is not necessary for every plaintiff to sue every defendant on every cause of action. But if you do not distinguish, it is assumed that all P against all D, for particular cause of action.
Costs- May get some costs back, some filing fees, but not expert witnesses, etc. Unless contract or statute entitles you to attorney fees, you won't get those back. Always ask for both anyway.
Legal vs. Equitable Relief
• Equitable- EX Injunction, Specific performance, etc.
If no adequate legal remedies, seek equitable. Is it contradictory to ask for both? Yes, but you may still ask for both. Cannot recover both, but can include both in pleadings.
Injunctions-"stop gap"/"provisional remedies" CR 64-71
• to stop a loss until such time as we can permanently fix it.
Prohibitory Injunction- stop someone from doing something
3 Step Process
1. TRO- Temporary restraining order
• Good for 10-14 days
• Can get one with relative ease
• Ex-parte (without opposition) without knowledge or presence of other party
➢ a) Must show you are facing an irreparable harm
➢ b) Likely to prevail on the merits (show that you are right, EX contract, photo, etc)
➢ c) Bond- you must post bond, if you are wrong, the damage to other party is compensated (usually twice the amount in dispute)
• Judges Hate this process- violates due process, other party not even present
2. Hearing- some evidence presented to judge, perhaps testimony. Make decision as to whether or not the injunction will be continued.
• If it is decided that the TRO was given in right, > Preliminary Injunction
• If it is decided that the TRO was given in error, the court will DISSOLVE the TRO
3. Trial- if in right -permanent injunction (+ monetary damages can be awarded)
p137
How do we know this is Federal Court? United States District Court
How do we know whether Fed Law or Diversity + $? - Common law causes of action
Plaintiff- Hendricks- CA
Defendant- Rice- Nev
Defendant- Paradise Inc- Idaho
Defendant- Forrester- Nev
Incident- Nev
(Home & Hearth location not important, not being sued)
Jurisdiction is proper in which state? Nev or Idaho, not CA (not P residence)
Eerie Railroad- Court will apply law from state in which it sits.
1st Paragraph- lacks citation to law for diversity + $75k in Fed Ct.
Form- Better in include Introduction section for jurisdiction, venue, etc. and keep causes of action in separate section (as in Terri Thomas case EX). Either way is ok.
Fraud-
1. Misrepresentation
2. Of Material Fact
3. Scienter (knowledge) of Falsity
4. Intent to Induce Reliance
5. Reliance
6. Reasonable Reliance
7. Damages
Incorporation by Reference- MEMORIZE
• Every cause of action MUST "stand alone" (unto itself be legally sufficient)
• Every cause of action must have parties, venue + jurisdiction, facts, and relief
• You can literally retype paragraphs 1-7 under each cause of action or incorporate by reference
• Paragraph 11 p138 "Plaintiffs reallege and ...as though set forth at length" Incorporates 1-7 not 8 (which alleges knowledge, which would conflict with negligence)
• Make sure to incorporate all necessary paragraphs, but make sure that they are not conflicting.
• Fiduciary Duty- the highest duty known to man (intentional or not, breach of fiduciary duty)
Critique by Bruce
• Prayer for each cause of action- Good- Can customize relief
• Very bad idea to specify amount of damages- things change, don't set limit
➢ "Damages in an amount to be proven at trial"
Subscriptions
• Signature, including bar #, etc. at end
• No rule as to order of parts, any order is fine, but it should make sense. Tell a story.
• All things alleged in complaint should be true.
The Request for a Jury CR 38b
• You have 10 days after service of the last pleading.
• What is the last pleading? Amended pleading, Answer. NEVER complaint/crossclaim (each gets an answer)
Verifications
• Verified complaints- rare, risky (requires verified answer)
Exhibits
• Rare on complaints (except commercial litigation, where documents are subject of dispute, EX contracts, claim statutes, etc.)
• Plaintiffs - use Letters for exhibits A,B,C
• Defendants - use Numbers for exhibits 1,2,3
Filing the complaint = going to court and filing it with the court
Take with you:
• a. Check
• b. Cover Sheet
• c. Complaint
• Give to clerk, stamp as filed, stamp with docket #, court keeps original
• Bring COPIES for conforming (those additional copies which are stamped, one for serving, one to file, take at least three)
Summons- inform defendant of lawsuit (procedural due process) CR 4
• Four Types of Service
➢ 1. Personal Service- must verify identity, not necessary to actually touch defendant
• At least 3 separate attempts (different times, different days)
➢ 2. Substitute Service of Process
• House of usual abode
• Suitable age and discretion
• Who resides there
• Must also mail a copy
➢ 3. Service by Publication
• Publication of general circulation
• Constructive notice- not actual notice
• Tips- assume it will be challenged, file a Motion for Service by Publication, will need to show due diligence. May still be challenged, but improves chance to survive challenge.
• More time for defendant to answer complaint, 60 days
➢ 4. Service by Mail CR 4d(4)
• 90 days to answer
➢ If you don't use personal service you are in trouble.
➢ No summons on Crossclaim or Counterclaim. But on third party Yes.
➢ Trick- send roses, women almost always open door.
How to serve the State of Washington
➢ Attorney General - Rob Mckenna
➢ Or Assistant Attorney General- must be served in office
Non-Washington Domiciliary
• Long Arm Statute
Defendant of Foreign Country 4i(1)
• in the manner prescribed by the law of the foreign country
Statute of Limitations 4.16.170
How long do you have to serve a complaint? 90 days in WA, 120 FED
Don't serve in time, filing elapses, may refile provided statute has not run.
Return of Service
• server must file proof of service, verifying proper service
Waiver of Service
• Federal Only
• Call and ask to waive, if so they get more time to answer.
Thursday, January 20, 2011
1.20.11
Handouts
-RCW 4.28.080 (Summons)
-Thomas Complaint
-Davis Complaint
Release
• Have client sign a release, to obtain medical records, etc.
Documents from other party
• Order to produce
Documents from third party
• Subpoena Duces Tecum
Expert Witnesses ER 702
• Doesn't just include Rocket Scientists. Experts will be necessary in almost every case. Specialized knowledge doesn't require formal education.
➢ EX computer experts, doctors, construction, etc.
• Best way to find effective expert witnesses
➢ Word of Mouth
➢ National Directory of Expert Witnesses, etc. But just because they're in the book doesn't make them good.
➢ What does make them good?
• 1. Knowledgeable- Know what they're talking about
• 2. Persuasiveness- Communicate effectively
• 3. In Active Practice- in whatever the field is
• 4. 50/50 for Plaintiff & Defendant- Balance ("expert whores", legal term)
➢ Overly Simplistic/Overly Complicated
• Neither is helpful, somewhere in between is best. Should be able to explain to jury so that they don't feel talked-down-to, but understand the concepts described.
• Ask experts what questions you should ask them on the stand.
➢ Start on Expert Selection Early
• Helps theories take shape & will help you develop case
➢ No standard of qualification required
• But other side may challenge "voir dire" the witness
Pleadings
• FORM MATTERS HERE- pay attention to detail
➢ RCW 26.09.006, 26.10.015, 26.26.065
• Rules- Follow theses rules or your pleadings will be BOUNCED!
➢ Cover Page
• 1" margins- left, right, bottom
• 3 ½" margin- at top
➢ Subsequent Pages- 1" margins all around
➢ Double Space
➢ 12pt type
➢ Numbered 1-28 down the side
• Complaint, Answer, Reply, etc.
➢ Don't sweat your pleadings- great pleadings not necessary, just follow the rules.
• 1. We are a Notice pleading state
• 2. CR 15- you can always amend your pleadings
• 3. Courts understand that this is a dispute between two people about things. Just a "ticket to the dance", need not be a work of art.
• 4 Necessary Parts
➢ 1. ID Plaintiff & Defendant
➢ 2. Jurisdiction & Venue
➢ 3. Some Facts of Case- Nature of Dispute
➢ 4. Prayer- What you want the court to do
RIP Real Interest in Party - CR 17a
➢ "You must have a dog in the fight"- you must be someone who would stand to gain from the proceedings.
• EX Of suit brought in interest of others- Guardian, Trusty, Executor/Personal Representative
• Can you sue a minor? -YES But minor cannot appear in court, guardian must. Can be liable for negligence at age 6. Minor is real party in interest.
• Minors at least 14 can be served, parent must be served also
➢ Plaintiff Mary Smith, and her Guardian Ad Litem, George Smith (only one plaintiff)
Status
➢ Type of entity you are- individual, partner, corporation, etc.
➢ EX p122 "Defendant ______, is and was at all times herein mentioned a corporation duly organized and existing under the laws of the state of Idaho, with its principle place of business in _____ county." (county confirms venue & jurisdiction)
Computerized Law Firm
• Forms as time saver, effective & inexpensive
➢ Form books- good for contracts (business), too general for other purposes.
Corporations & Other Business Entities
• Corporations are people for purposes of the law- Corporations can be sued
• Partnerships- Cannot be sued, partnership does not pay taxes (individuals do)
➢ "Harry Rice and Harvey Rice, A partnership, doing business as Hearth & Home, Real Estate Co., Defendants" ("partnership" informs us to relationship, & that the harm was in a business capacity)
• You can sue, as a person, anyone who pays taxes.
• Corporate Shield- you are not personally liable for debt, or loss of more than your investment
➢ Stock- allows you to raise capital
• Personal Service cannot get corporate form
• Under Funded Corporations- create corporation with no personal assets, for purpose of defrauding your creditors. If client wants to sue a corporation, only corporate assets are liable, not personal assets, unless "corporate veil" can be pierced. Look for Proper Formation.
Governmental Agencies
• Require Claim Statutes
➢ It is necessary to allege in the body of the complaint that claim statute has been done.
➢ The court cannot have jurisdiction until the claim statute has been filed.
Special Problems with Parties
• DBA's- Does Business As
➢ DBA- not a person, cannot be sued
➢ Martin Redshaw, doing business as Marty's Diner, Plaintiff
Does ("John Doe") CR 10a(2)
• Fictitiously named defendants
➢ Some States allow Does to be used on a pleading, as placeholders.
➢ Washington does not allow the use of Does
• If you aware that there is another party, but don't yet know their name, you may use a Doe, but cannot throw them in without a theory or entity in mind.
➢ Federal rules do not allow the use of Does
Permissive & Compulsory Joinder
• Compulsory- same nexus of facts
• Conditionally necessary
• Permissive- Review these
Class Actions CR 23
• Substantial differences between State & Fed on this rule
Interpleader
• Limited funds to be divided among multiple parties
➢ EX Accident victims, $50k from insurance, to be divided among them. Funds may be interpleaded, and insurance company is excused from dispute.
Jurisdiction & Venue - p128
• Jurisdiction
➢ STATE "Jurisdiction is proper in this court." Everything in complaint is deemed true. You just have to say that it is.
➢ FEDERAL Jurisdiction is much more narrow, therefore pleadings must include citation to law.
• Venue- Generally some explanation is included as to venue.
➢ "The (accident, contract, assault) alleged herein took place in _____ county, WA and therefore venue is proper in this court"
• Residency
• Occurrence
• Location of Property
• Etc.
Pleading the Cause of Action
• Factual basis for lawsuit, but not the most important part of case, and are not seen by jury.
➢ The more specifics you allege, the more you have to prove. The fewer the better.
➢ Notice Pleading
• Exceptions- actions that must be pleaded with specificity
• CR 9- Fraud, Mistake, Condition of the Mind
• Fraud- All 7 Elements must be represented
Review Fraud Elements- write elements of Fraud in Court Rule Book
• Always include more than one cause of action
• Don't put all your eggs in one basket
➢ Don't worry about conflicting causes of action. You can allege conflicting causes of action. Even if only one can be true.
• You may bring multiple causes of action from multiple plaintiffs, in same complaint.
Cause of Action
• Also called Claim
• Should not be referred to as a count, can be confused with criminal.
-RCW 4.28.080 (Summons)
-Thomas Complaint
-Davis Complaint
Release
• Have client sign a release, to obtain medical records, etc.
Documents from other party
• Order to produce
Documents from third party
• Subpoena Duces Tecum
Expert Witnesses ER 702
• Doesn't just include Rocket Scientists. Experts will be necessary in almost every case. Specialized knowledge doesn't require formal education.
➢ EX computer experts, doctors, construction, etc.
• Best way to find effective expert witnesses
➢ Word of Mouth
➢ National Directory of Expert Witnesses, etc. But just because they're in the book doesn't make them good.
➢ What does make them good?
• 1. Knowledgeable- Know what they're talking about
• 2. Persuasiveness- Communicate effectively
• 3. In Active Practice- in whatever the field is
• 4. 50/50 for Plaintiff & Defendant- Balance ("expert whores", legal term)
➢ Overly Simplistic/Overly Complicated
• Neither is helpful, somewhere in between is best. Should be able to explain to jury so that they don't feel talked-down-to, but understand the concepts described.
• Ask experts what questions you should ask them on the stand.
➢ Start on Expert Selection Early
• Helps theories take shape & will help you develop case
➢ No standard of qualification required
• But other side may challenge "voir dire" the witness
Pleadings
• FORM MATTERS HERE- pay attention to detail
➢ RCW 26.09.006, 26.10.015, 26.26.065
• Rules- Follow theses rules or your pleadings will be BOUNCED!
➢ Cover Page
• 1" margins- left, right, bottom
• 3 ½" margin- at top
➢ Subsequent Pages- 1" margins all around
➢ Double Space
➢ 12pt type
➢ Numbered 1-28 down the side
• Complaint, Answer, Reply, etc.
➢ Don't sweat your pleadings- great pleadings not necessary, just follow the rules.
• 1. We are a Notice pleading state
• 2. CR 15- you can always amend your pleadings
• 3. Courts understand that this is a dispute between two people about things. Just a "ticket to the dance", need not be a work of art.
• 4 Necessary Parts
➢ 1. ID Plaintiff & Defendant
➢ 2. Jurisdiction & Venue
➢ 3. Some Facts of Case- Nature of Dispute
➢ 4. Prayer- What you want the court to do
RIP Real Interest in Party - CR 17a
➢ "You must have a dog in the fight"- you must be someone who would stand to gain from the proceedings.
• EX Of suit brought in interest of others- Guardian, Trusty, Executor/Personal Representative
• Can you sue a minor? -YES But minor cannot appear in court, guardian must. Can be liable for negligence at age 6. Minor is real party in interest.
• Minors at least 14 can be served, parent must be served also
➢ Plaintiff Mary Smith, and her Guardian Ad Litem, George Smith (only one plaintiff)
Status
➢ Type of entity you are- individual, partner, corporation, etc.
➢ EX p122 "Defendant ______, is and was at all times herein mentioned a corporation duly organized and existing under the laws of the state of Idaho, with its principle place of business in _____ county." (county confirms venue & jurisdiction)
Computerized Law Firm
• Forms as time saver, effective & inexpensive
➢ Form books- good for contracts (business), too general for other purposes.
Corporations & Other Business Entities
• Corporations are people for purposes of the law- Corporations can be sued
• Partnerships- Cannot be sued, partnership does not pay taxes (individuals do)
➢ "Harry Rice and Harvey Rice, A partnership, doing business as Hearth & Home, Real Estate Co., Defendants" ("partnership" informs us to relationship, & that the harm was in a business capacity)
• You can sue, as a person, anyone who pays taxes.
• Corporate Shield- you are not personally liable for debt, or loss of more than your investment
➢ Stock- allows you to raise capital
• Personal Service cannot get corporate form
• Under Funded Corporations- create corporation with no personal assets, for purpose of defrauding your creditors. If client wants to sue a corporation, only corporate assets are liable, not personal assets, unless "corporate veil" can be pierced. Look for Proper Formation.
Governmental Agencies
• Require Claim Statutes
➢ It is necessary to allege in the body of the complaint that claim statute has been done.
➢ The court cannot have jurisdiction until the claim statute has been filed.
Special Problems with Parties
• DBA's- Does Business As
➢ DBA- not a person, cannot be sued
➢ Martin Redshaw, doing business as Marty's Diner, Plaintiff
Does ("John Doe") CR 10a(2)
• Fictitiously named defendants
➢ Some States allow Does to be used on a pleading, as placeholders.
➢ Washington does not allow the use of Does
• If you aware that there is another party, but don't yet know their name, you may use a Doe, but cannot throw them in without a theory or entity in mind.
➢ Federal rules do not allow the use of Does
Permissive & Compulsory Joinder
• Compulsory- same nexus of facts
• Conditionally necessary
• Permissive- Review these
Class Actions CR 23
• Substantial differences between State & Fed on this rule
Interpleader
• Limited funds to be divided among multiple parties
➢ EX Accident victims, $50k from insurance, to be divided among them. Funds may be interpleaded, and insurance company is excused from dispute.
Jurisdiction & Venue - p128
• Jurisdiction
➢ STATE "Jurisdiction is proper in this court." Everything in complaint is deemed true. You just have to say that it is.
➢ FEDERAL Jurisdiction is much more narrow, therefore pleadings must include citation to law.
• Venue- Generally some explanation is included as to venue.
➢ "The (accident, contract, assault) alleged herein took place in _____ county, WA and therefore venue is proper in this court"
• Residency
• Occurrence
• Location of Property
• Etc.
Pleading the Cause of Action
• Factual basis for lawsuit, but not the most important part of case, and are not seen by jury.
➢ The more specifics you allege, the more you have to prove. The fewer the better.
➢ Notice Pleading
• Exceptions- actions that must be pleaded with specificity
• CR 9- Fraud, Mistake, Condition of the Mind
• Fraud- All 7 Elements must be represented
Review Fraud Elements- write elements of Fraud in Court Rule Book
• Always include more than one cause of action
• Don't put all your eggs in one basket
➢ Don't worry about conflicting causes of action. You can allege conflicting causes of action. Even if only one can be true.
• You may bring multiple causes of action from multiple plaintiffs, in same complaint.
Cause of Action
• Also called Claim
• Should not be referred to as a count, can be confused with criminal.
Wednesday, January 19, 2011
1.19.11
Handouts- Discovery Project
• All 3 homework assignments based on tonight's handout:
➢ Feb. 3rd: Complaint (on behalf of Plaintiff) & Answer (on behalf of Defendant) (NO summons)
➢ Feb. 24th: Discovery Project (may choose either Plaintiff or Defendant)
• 1. Memo re: Depositions
• 2. ROGS (25)
• 3. RTP- no set # required
• 4. RTA- " "
➢ Mar. 8th: Mediation brief (may choose Plaintiff or Defendant)
• You may switch scenarios if you wish, but it is easier to stay with same scenario because you will be familiar with the facts of the case.
How to tab your Court Rules sections:
• State: RPC, ER, RAP, CR, MAR
• Federal: FRCP, FRE, FRAP
• Local: King County & the county of your office/majority of filings (usually King, Snohomish, Pierce)
Medical Diaries
• Inadmissible at trial - self-serving, and hearsay
• They ARE discoverable- may be read by other side
➢ Incident related issues only- keep personal life separate
➢ Does help client remember specifics of damages & give them a project
Locating Fact Witnesses or Elusive Defendants
• After filing complaint- you have 90 days to serve
➢ If you cannot serve it by then, your summons EXPIRES
➢ If you start early you can re-file, but you are close to Statute of Limitations= problems
Corporations
➢ Must register a Designated Agent for receiving summons with Secretary of State
• Serving people- more difficult, may have moved, etc.
➢ Dead people- personal representative, or have one appointed by court
Interviewing Fact Witnesses
• Once you locate a fact witness- book says call. Bruce says "NEVER call"
➢ You need this person- write them a letter, including the following:
• 1. Thank you thank you thank you.
• 2. Let them know that they are integral part of justice system. "Our justice system depends on people like you who facilitate the truth finding process."
• 3. Let them know that you will do your best to keep them from being inconvenienced by the process. "I want you to know that I will do everything I can to keep you out of this matter."
➢ Recording- Don't do it.
• Makes people uncomfortable, take good notes.
• And don't ever secretly record, it is a felony.
• If you must record, let them know that it is so that they are not misquoted, and a copy of the recording will be given to them.
• Type notes into statement, have witness sign it. Be sure to give witness the ability to make corrections/changes to statement.
➢ Tips to avoid leading questions
• Listen to witnesses version "Tell me what you saw/what happened"
• Listen with open mind. If their story contradicts your client's, you need to know it.
• Evaluate witness for credibility, whether they're for or against you.
➢ Signed statements are hearsay, but can be useful at trial.
Depositions
• You cannot force a statement from someone, but if they refuse, you can subpoena them for deposition. (More inconvenient)
➢ At deposition other side is present and may ask questions as well.
Evidence Rules
• Direct vs. Circumstantial
➢ Circumstantial evidence is fully admissible and every bit as valid as direct
➢ Direct evidence that witness personally observes- see person there
• EX see class going on, see students in chairs- Direct evidence
• EX students on break, coats and books are circumstantial evidence that class is going on.
Five Forms of Evidence
• Tangible:
1. Testimony (live or recorded under oath (deposition))
• Witnesses, parties, experts.
2. Documentary- checks, receipts, books, etc.
3. Demonstrative- 3D items- exhibits, demonstrations, photos, bloody glove, etc.
• Intangible
4. Presumptions- conclusions based on inferences
• EX mens rea- presumption that child under age of 12 is not capable of
• EX mailbox rule- letter properly addressed & posted, is presumed to have been received
• EX child born during a marriage is presumed to be child of husband
• EX presumption of voidability- minors in contract
• EX violation of statute- presumption of negligence
• Presumptions may be Rebuted
5. Judicial Notice-court accepts certain facts as true without further proof
• To speed things up
• ER 201b- "not subject to reasonable dispute"
• (1) generally known within the territorial jurisdiction of the trial court or
• EX Seattle is in King County, etc.
• (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
• EX Polar bears are white, # of inches in a mile, things that you can look up in an encyclopedia, etc.
• DO NOT assume that State & Fed rules are the same. Look it up.
Relevancy
• ER 401- Memorize!
➢ "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Types of Evidence
• Subsequent Remedial Measures- ER 407
➢ You cannot use SRM to prove negligence. (Don't want to discourage fixing problem, and risk more people being hurt.
➢ But can be used to prove that repairs were feasible.
➢ And can get in evidence of repair to show ownership.
Evidence of Compromise and Offers to Compromise- ER 408
• Inadmissible, but may be relevant
➢ If it was admissible no one would settle
Payment of Medical and Similar Expenses- ER 409
• Inadmissible, but may be relevant
➢ If it was admissible it would discourage payments
Existence of Liability Insurance- ER 411
• Inadmissible, not usually relevant
➢ If it was admissible, jury may grant more $ from insurance company than person
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. ER 403
• Although all irrelevant evidence is inadmissible, not all relevant evidence is admissible
➢ EX Cumulative- 10 expert witnesses who all testify to same thing.
➢ EX Prejudice- OJ knife sharpening video, gory pictures, etc.
Know & give example of ER 403, 408, 409, 411
Character Evidence not admissible to prove conduct, except other crimes. ER 404 & 405
• Inadmissible unless character is at issue
➢ EX honest, trustworthy, violent, careful, etc.
Habit Evidence- ER 406
• How a person responds to a particular situation, as a routine, is admissible.
Documentary & Demonstrative Evidence
• All documents must be authenticated, you must prove that they are what they purport to be.
➢ Handwriting experts, testimony, etc.
• Some are Self-Identifying - ER 902
• public documents
• certified copies of public records
• official (govt) publications
• newspapers and periodicals
• trade inscriptions
• notarized documents
• commercial paper
MIDTERM QUESTION-
Best Evidence Rule -
• Only pertains to written documents, says that you must produce the original document if the authenticity of the document is challenged.
• Cannot introduce copy if original is in your possession, if other party has original, then a copy may be introduced. To avoid alteration (forgery).
• You may ask other side if they will challenge, if not, copies are ok.
Hearsay Rule ER 802
• You cannot produce evidence of out of court declarations to prove the truth of the matter asserted in them.
➢ EX Letters, police reports, depositions, etc.
• The basic principle is to keep unreliable evidence out.
• Many Exceptions ER 803
➢ Indicia of Trustworthiness
Excited Utterance- don't have time to fabricate
• EX "look out, look out! that guy has a gun!"
Then Existing Mental, Emotional, or Physical Condition
• not likely to lie to doctor, may adversely effect you
Business Records
• It's only hearsay if we're trying to prove the matter asserted in them
• If you're trying to prove the content of the hearsay
• EX Testify that you've never been to Bolivia. Article you wrote about the ten times you went to Bolivia, is hearsay if you're trying to prove they've been to Bolivia, but not if you're trying to prove that they're a liar.
Recorded Recollections
➢ Double Hearsay
• Police Report with Witness Statement
➢ Need exception for every level
• Witness Statement- Excited Utterance
• Police Report- Business Record
• All 3 homework assignments based on tonight's handout:
➢ Feb. 3rd: Complaint (on behalf of Plaintiff) & Answer (on behalf of Defendant) (NO summons)
➢ Feb. 24th: Discovery Project (may choose either Plaintiff or Defendant)
• 1. Memo re: Depositions
• 2. ROGS (25)
• 3. RTP- no set # required
• 4. RTA- " "
➢ Mar. 8th: Mediation brief (may choose Plaintiff or Defendant)
• You may switch scenarios if you wish, but it is easier to stay with same scenario because you will be familiar with the facts of the case.
How to tab your Court Rules sections:
• State: RPC, ER, RAP, CR, MAR
• Federal: FRCP, FRE, FRAP
• Local: King County & the county of your office/majority of filings (usually King, Snohomish, Pierce)
Medical Diaries
• Inadmissible at trial - self-serving, and hearsay
• They ARE discoverable- may be read by other side
➢ Incident related issues only- keep personal life separate
➢ Does help client remember specifics of damages & give them a project
Locating Fact Witnesses or Elusive Defendants
• After filing complaint- you have 90 days to serve
➢ If you cannot serve it by then, your summons EXPIRES
➢ If you start early you can re-file, but you are close to Statute of Limitations= problems
Corporations
➢ Must register a Designated Agent for receiving summons with Secretary of State
• Serving people- more difficult, may have moved, etc.
➢ Dead people- personal representative, or have one appointed by court
Interviewing Fact Witnesses
• Once you locate a fact witness- book says call. Bruce says "NEVER call"
➢ You need this person- write them a letter, including the following:
• 1. Thank you thank you thank you.
• 2. Let them know that they are integral part of justice system. "Our justice system depends on people like you who facilitate the truth finding process."
• 3. Let them know that you will do your best to keep them from being inconvenienced by the process. "I want you to know that I will do everything I can to keep you out of this matter."
➢ Recording- Don't do it.
• Makes people uncomfortable, take good notes.
• And don't ever secretly record, it is a felony.
• If you must record, let them know that it is so that they are not misquoted, and a copy of the recording will be given to them.
• Type notes into statement, have witness sign it. Be sure to give witness the ability to make corrections/changes to statement.
➢ Tips to avoid leading questions
• Listen to witnesses version "Tell me what you saw/what happened"
• Listen with open mind. If their story contradicts your client's, you need to know it.
• Evaluate witness for credibility, whether they're for or against you.
➢ Signed statements are hearsay, but can be useful at trial.
Depositions
• You cannot force a statement from someone, but if they refuse, you can subpoena them for deposition. (More inconvenient)
➢ At deposition other side is present and may ask questions as well.
Evidence Rules
• Direct vs. Circumstantial
➢ Circumstantial evidence is fully admissible and every bit as valid as direct
➢ Direct evidence that witness personally observes- see person there
• EX see class going on, see students in chairs- Direct evidence
• EX students on break, coats and books are circumstantial evidence that class is going on.
Five Forms of Evidence
• Tangible:
1. Testimony (live or recorded under oath (deposition))
• Witnesses, parties, experts.
2. Documentary- checks, receipts, books, etc.
3. Demonstrative- 3D items- exhibits, demonstrations, photos, bloody glove, etc.
• Intangible
4. Presumptions- conclusions based on inferences
• EX mens rea- presumption that child under age of 12 is not capable of
• EX mailbox rule- letter properly addressed & posted, is presumed to have been received
• EX child born during a marriage is presumed to be child of husband
• EX presumption of voidability- minors in contract
• EX violation of statute- presumption of negligence
• Presumptions may be Rebuted
5. Judicial Notice-court accepts certain facts as true without further proof
• To speed things up
• ER 201b- "not subject to reasonable dispute"
• (1) generally known within the territorial jurisdiction of the trial court or
• EX Seattle is in King County, etc.
• (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
• EX Polar bears are white, # of inches in a mile, things that you can look up in an encyclopedia, etc.
• DO NOT assume that State & Fed rules are the same. Look it up.
Relevancy
• ER 401- Memorize!
➢ "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Types of Evidence
• Subsequent Remedial Measures- ER 407
➢ You cannot use SRM to prove negligence. (Don't want to discourage fixing problem, and risk more people being hurt.
➢ But can be used to prove that repairs were feasible.
➢ And can get in evidence of repair to show ownership.
Evidence of Compromise and Offers to Compromise- ER 408
• Inadmissible, but may be relevant
➢ If it was admissible no one would settle
Payment of Medical and Similar Expenses- ER 409
• Inadmissible, but may be relevant
➢ If it was admissible it would discourage payments
Existence of Liability Insurance- ER 411
• Inadmissible, not usually relevant
➢ If it was admissible, jury may grant more $ from insurance company than person
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. ER 403
• Although all irrelevant evidence is inadmissible, not all relevant evidence is admissible
➢ EX Cumulative- 10 expert witnesses who all testify to same thing.
➢ EX Prejudice- OJ knife sharpening video, gory pictures, etc.
Know & give example of ER 403, 408, 409, 411
Character Evidence not admissible to prove conduct, except other crimes. ER 404 & 405
• Inadmissible unless character is at issue
➢ EX honest, trustworthy, violent, careful, etc.
Habit Evidence- ER 406
• How a person responds to a particular situation, as a routine, is admissible.
Documentary & Demonstrative Evidence
• All documents must be authenticated, you must prove that they are what they purport to be.
➢ Handwriting experts, testimony, etc.
• Some are Self-Identifying - ER 902
• public documents
• certified copies of public records
• official (govt) publications
• newspapers and periodicals
• trade inscriptions
• notarized documents
• commercial paper
MIDTERM QUESTION-
Best Evidence Rule -
• Only pertains to written documents, says that you must produce the original document if the authenticity of the document is challenged.
• Cannot introduce copy if original is in your possession, if other party has original, then a copy may be introduced. To avoid alteration (forgery).
• You may ask other side if they will challenge, if not, copies are ok.
Hearsay Rule ER 802
• You cannot produce evidence of out of court declarations to prove the truth of the matter asserted in them.
➢ EX Letters, police reports, depositions, etc.
• The basic principle is to keep unreliable evidence out.
• Many Exceptions ER 803
➢ Indicia of Trustworthiness
Excited Utterance- don't have time to fabricate
• EX "look out, look out! that guy has a gun!"
Then Existing Mental, Emotional, or Physical Condition
• not likely to lie to doctor, may adversely effect you
Business Records
• It's only hearsay if we're trying to prove the matter asserted in them
• If you're trying to prove the content of the hearsay
• EX Testify that you've never been to Bolivia. Article you wrote about the ten times you went to Bolivia, is hearsay if you're trying to prove they've been to Bolivia, but not if you're trying to prove that they're a liar.
Recorded Recollections
➢ Double Hearsay
• Police Report with Witness Statement
➢ Need exception for every level
• Witness Statement- Excited Utterance
• Police Report- Business Record
WSPA Student Career Night & Dinner
-Friday January 28th, Dinner at 6:00pm
Great opportunity to network, and discuss interview skills and the current job market.
Enjoy a delicious meal with your fellow paralegal students and learn keen insights from some of the best in the profession!
Resume review workshop starts at 5:00pm
-Get individualized feedback on your resume from experts.
Register Here-$45 for WSPA members/ $50 for non-members
Deadline to register is Tuesday January 25th
See you there!
Great opportunity to network, and discuss interview skills and the current job market.
Enjoy a delicious meal with your fellow paralegal students and learn keen insights from some of the best in the profession!
Resume review workshop starts at 5:00pm
-Get individualized feedback on your resume from experts.
Register Here-$45 for WSPA members/ $50 for non-members
Deadline to register is Tuesday January 25th
See you there!
1.18.11
• In Rem- court must have subject matter jurisdiction & personal jurisdiction. Once in awhile a substitute for personal jurisdiction is necessary. EX Two people who have never been to Montana have dispute over property in Montana. Judgment effects Montana, therefore IN REM jurisdiction is granted to Montana courts.
• Quasi in rem- Same as above, except that the Montana property in not the heart of the dispute, but solution may be judgment for money, in which a liquidation of assets may lead to sale of real property in Montana, therefore QUASI IN REM jurisdiction applies. Both are substitutions for personal jurisdiction, not exceptions.
➢ How is in rem/quasi in rem applied?- Plaintiff may decide. Must allege jurisdiction in complaint.
Relation Back Doctrine
• If you originally filed before any Statute of Limitations had run out, then you may amend for both.
• "Justice Delayed is Justice Denied"
• Goes back to date of filing and allows you to add any causes of action, which you could have added at the time of filing.
• Amendments generally accepted.
• Adding additional parties much more difficult.
• p65. 6b.
➢ Figure out what the question is as soon as possible.
➢ Websites must make specific offer, informational advertising not sufficient for minimum contact to support long arm statutes.
➢ Read facts carefully for clues- "information, no orders".
➢ Analysis- start with law
• This is a question of min contacts, is defendant liable to be sued in Maine?
• Does Go a Weigh have sufficient minimum contacts with the state of Maine to be liable under Long arm statutes?
• But, they are making money in Maine, 1% of profits from Maine, is that sufficient for jurisdiction?
• Are sales "systematic and continuous"? (Int'l Shoe-"systematic & continuous" is test).
Fees v. Cost
➢ Fees- go into pocket
➢ Cost- out of pocket -EX filing fees, expert witness fees, etc.
• Fee is EXCLUSIVE of cost. Attorney gets fee & costs. Client is REQUIRED to pay cost. RPC- 1.8(e) "A lawyer shall not, while representing a client in connection with contemplated or pending litigation, advance or guarantee financial assistance to a client, ...".
• Costs are in addition to fee.
• Costs may be paid as you go, or advanced by lawyer, but must ultimately be paid client.
• What if case is lost and costs are not remitted? Lawyer must make reasonable attempt to recover. ie. send letter (don't expect response).
• Make this clear to client.
• Paralegal may not set/establish fee, but may quote fee.
• Fee agreement must be in writing
• RPC 1.5(b) - "preferably in writing"- interpret as ALWAYS in writing
• The Bar is there to protect public, not you.
• Fee sharing- with non-lawyer-NO
• with lawyer-YES -RPC 1.5(e) "in proportion to services provided". No referral fee.
Accounting
➢ Must provide client with written accounting of all fees and expenses. RPC 1.5b & RPC 1.5c(3)
➢ Client must sign off on Distribution sheet. Get proof of approval.
➢ 3 Different Accounts
1. Trust Account- IOLTA (Interest on Lawyers Trust Account)
• RPC 1.15A(i)(2)(ii). Interest goes to State Bar for indigent legal services.
• Flat rate payment- into trust account. Fees billed to client and attorney is paid out of trust account as work is done.
• Accounting must be meticulous. Any impropriety here can easily lead to disbarment. This is not your money. DO NOT screw this up.
2. General Account- Property of Attorney
• Attorney fees
• Pay rent, staff paychecks, etc. from this account.
3. Cost Account
• Recovered costs deposited here, and used to advance future costs.
• If more cost money is needed, it may be borrowed from General acct, NOT TRUST ACCOUNT that money belongs to someone else.
• Un-recovered costs may be written off for tax purposes.
Client Interview
➢ Client is primary source of information, but has a "filtered" view of the facts. Stay objective
➢ Do not forget that you are also being interviewed.
➢ Things Clients are looking for:
1. Confidence- important to instill faith in client
2. Professional- attire & demeanor
3. Competence- know how to fix problem
4. Knowledgeable- experience with this area of law
5. Informative- be able to communicate effectively ("here's you problem, here's how we're going to solve it")
6. Caring- let client know that they matter to you. Give full attention.
Preparing for Client Interview
➢ Research ahead of time, know enough to discuss intelligently with client.
• Other Tips
➢ Set meeting ASAP- let them know you take their problem seriously
➢ Chance to lose client +10% each day you wait
➢ More info the better, "bring everything"
➢ Don't ask too many questions on phone
• Do verify (for personal injury case)
1. Statute of limitations
2. Who is at fault
3. Insurance
Review of letter p.90
➢ Checklist not personable
➢ Form letters ok, but adjust to suit situation
➢ This letter should be a phone call!
• Don't wait so long for initial interview
• Interview
➢ Doesn't have to be at office
• Going to client shows you care
• Do not go into client home unless unavoidable- Safety first
• Meet in public (Starbucks, Denny's, etc.)
Client Reminders
➢ Can be annoying, may be construed as insulting
➢ If you need to call, make an excuse,
• EX "did I mention the police report? Be sure to bring that, I'll see you at 3:00"
➢ Do not panic if you don't get all the information at the first meeting
• 2nd meetings- clients love contact
• Quasi in rem- Same as above, except that the Montana property in not the heart of the dispute, but solution may be judgment for money, in which a liquidation of assets may lead to sale of real property in Montana, therefore QUASI IN REM jurisdiction applies. Both are substitutions for personal jurisdiction, not exceptions.
➢ How is in rem/quasi in rem applied?- Plaintiff may decide. Must allege jurisdiction in complaint.
Relation Back Doctrine
• If you originally filed before any Statute of Limitations had run out, then you may amend for both.
• "Justice Delayed is Justice Denied"
• Goes back to date of filing and allows you to add any causes of action, which you could have added at the time of filing.
• Amendments generally accepted.
• Adding additional parties much more difficult.
• p65. 6b.
➢ Figure out what the question is as soon as possible.
➢ Websites must make specific offer, informational advertising not sufficient for minimum contact to support long arm statutes.
➢ Read facts carefully for clues- "information, no orders".
➢ Analysis- start with law
• This is a question of min contacts, is defendant liable to be sued in Maine?
• Does Go a Weigh have sufficient minimum contacts with the state of Maine to be liable under Long arm statutes?
• But, they are making money in Maine, 1% of profits from Maine, is that sufficient for jurisdiction?
• Are sales "systematic and continuous"? (Int'l Shoe-"systematic & continuous" is test).
Fees v. Cost
➢ Fees- go into pocket
➢ Cost- out of pocket -EX filing fees, expert witness fees, etc.
• Fee is EXCLUSIVE of cost. Attorney gets fee & costs. Client is REQUIRED to pay cost. RPC- 1.8(e) "A lawyer shall not, while representing a client in connection with contemplated or pending litigation, advance or guarantee financial assistance to a client, ...".
• Costs are in addition to fee.
• Costs may be paid as you go, or advanced by lawyer, but must ultimately be paid client.
• What if case is lost and costs are not remitted? Lawyer must make reasonable attempt to recover. ie. send letter (don't expect response).
• Make this clear to client.
• Paralegal may not set/establish fee, but may quote fee.
• Fee agreement must be in writing
• RPC 1.5(b) - "preferably in writing"- interpret as ALWAYS in writing
• The Bar is there to protect public, not you.
• Fee sharing- with non-lawyer-NO
• with lawyer-YES -RPC 1.5(e) "in proportion to services provided". No referral fee.
Accounting
➢ Must provide client with written accounting of all fees and expenses. RPC 1.5b & RPC 1.5c(3)
➢ Client must sign off on Distribution sheet. Get proof of approval.
➢ 3 Different Accounts
1. Trust Account- IOLTA (Interest on Lawyers Trust Account)
• RPC 1.15A(i)(2)(ii). Interest goes to State Bar for indigent legal services.
• Flat rate payment- into trust account. Fees billed to client and attorney is paid out of trust account as work is done.
• Accounting must be meticulous. Any impropriety here can easily lead to disbarment. This is not your money. DO NOT screw this up.
2. General Account- Property of Attorney
• Attorney fees
• Pay rent, staff paychecks, etc. from this account.
3. Cost Account
• Recovered costs deposited here, and used to advance future costs.
• If more cost money is needed, it may be borrowed from General acct, NOT TRUST ACCOUNT that money belongs to someone else.
• Un-recovered costs may be written off for tax purposes.
Client Interview
➢ Client is primary source of information, but has a "filtered" view of the facts. Stay objective
➢ Do not forget that you are also being interviewed.
➢ Things Clients are looking for:
1. Confidence- important to instill faith in client
2. Professional- attire & demeanor
3. Competence- know how to fix problem
4. Knowledgeable- experience with this area of law
5. Informative- be able to communicate effectively ("here's you problem, here's how we're going to solve it")
6. Caring- let client know that they matter to you. Give full attention.
Preparing for Client Interview
➢ Research ahead of time, know enough to discuss intelligently with client.
• Other Tips
➢ Set meeting ASAP- let them know you take their problem seriously
➢ Chance to lose client +10% each day you wait
➢ More info the better, "bring everything"
➢ Don't ask too many questions on phone
• Do verify (for personal injury case)
1. Statute of limitations
2. Who is at fault
3. Insurance
Review of letter p.90
➢ Checklist not personable
➢ Form letters ok, but adjust to suit situation
➢ This letter should be a phone call!
• Don't wait so long for initial interview
• Interview
➢ Doesn't have to be at office
• Going to client shows you care
• Do not go into client home unless unavoidable- Safety first
• Meet in public (Starbucks, Denny's, etc.)
Client Reminders
➢ Can be annoying, may be construed as insulting
➢ If you need to call, make an excuse,
• EX "did I mention the police report? Be sure to bring that, I'll see you at 3:00"
➢ Do not panic if you don't get all the information at the first meeting
• 2nd meetings- clients love contact
1.13.11
• Handouts can be used on exam!
Statute of limitations
➢ Why?
• Evidence- weakens over time
• people die, forget, move,
• documents get lost, destroyed
• Truth- is object
• Closure-not have threat of suit hanging over head
• court congestion
• Secondary Gain-Vengeance/Harassment/Jealousy
• Defendant most hurt by deterioration of evidence
• Tough to prove a negative
• From moment when damages accrue, statute of limitation begins
➢ Statute begins when you "know or should know" you have been harmed.
➢ EX medical malpractice, may not know that you've been harmed for years.
• SL 3 years, but 8 yrs to discover, and 1 yr to take action w/in the 8 yrs.
Statute of limitations- varies from state to state
Tolling the Statute
➢ Events which Toll (stop) the running of the statute
• Just like sports time-out, amount of time on clock when time-out starts, is same amount when time begins again.
• 1. Minor- (not a true toll) stops statute from beginning. Statute does not begin until child turns 18. Date of accident irrelevant, statutory period begins on day of 18th bday.
• 2. Jail/Prison (for Plaintiff/not Defendant) - statute applies to P, and jail impairs ability to bring case.
• 3. Physical Incapacitation (Plaintiff/not D)- Coma, or close to it.
• 4. Out of Country (Defendant/not P) - D cannot be served.
• 5. Active Duty (Plaintiff/not D) D may be served
• 6. Concealment (Defendant/not P)
• 7. Death- (Plaintiff/not D) for 1year, personal representative can bring suit. (Death of D does not toll statute)
• 8. Judge ordered stay
• 9. Bankruptcy (Plaintiff/not D) when you file B, your assets are not yours, your cause of action is not yours, (suit is asset, may be abandoned back to P)
• 10. Insanity (Plaintiff/not D)
• Toll + Relation Back will be exam Question
Claim Statute -Suing govt entity (any part of govt EX school, parks, etc.)-
➢ Vestigial immunity- can bring action against govt, however, claim statute says, before you can sue govt you must file a proof of claim to settle. Must give govt a period of time to evaluate and choose to settle if they wish ~ 60-90 days. And they NEVER, EVER settle. But if you don't, your claim will be rejected by court.
➢ Statute is usually tolled while claim is reviewed
• Martindale Hubbell
➢ Publication- look up firm in any city, also has thumbnail of law in each state, including statute.
• NEVER try a case at Christmas, jurors not happy, not likely to give money to the person who made them be there.
Laches -("lat-cheese")
➢ Only in lawsuits with equitable remedies
➢ "We know statute, but if while statute is still pending, action is taken that indicates that you do not intend to pursue your legal rights, statute may be shortened."
➢ EX House sale falls through, seller decides not to sell, breach of contract. Buyer could sue for specific performance, but if he instead buys another house, seller can fairly assume that buyer will not pursue remedy against him.
• Review PROMISSORY ESTOPPEL-when your words and actions induce reliance in another which results in harm.
Tickler Systems
➢ Lots of dates to keep track of, send reminders X time ahead of date.
➢ NO defense for missing a statute, automatic MALPRACTICE.
➢ Software programs-Outlook, Needles (popular), Abacus, KEEP HARD COPY.
➢ Keep your own calendar of cases & projects you are responsible for.
• Feasibility of case
➢ Find out as soon as possible if it's a dog (poor case).
• Turning Down a Case
➢ CRITICAL that this is committed to memory.
• If there is any doubt that you are their lawyer, you are.
• Must be able to prove that you are NOT their lawyer.
• Malpractice even if not their attorney.
• If you tell them their case is bad and it's not=malpractice.
• If you do not tell them about statute of limitation=malpractice.
• THE ANSWER = SEND LETTER INCLUDING THESE THREE THINGS
• 1. Clear, unequivocal statement you are not taking the case/representing the client. "We are not representing you or accepting this case". Do not dance around it.
• 2. Recommend a Second Opinion "Attorneys can vary widely in their assessment of liability and damages."
• 3. Statute of Limitations "There is an statute of limitations...that is critical to keep in mind." Don't need to state exact time, merely state that a statute of limitations exists.
• "Thank you for meeting with me, it was a pleasure meeting you and I really enjoyed meeting with a fellow -----, blah blah blah. (Mention something personal discussed). I hope we have the pleasure of representing you or your family at some point in the future. Please do not hesitate to contact us in the future if you have any questions."
• Be personable- keep future business in mind.
Frivolous Claims
➢ Generally propaganda from Insurance companies, corporations, etc.
7 Reasons why frivolous lawsuits are rare to non existent
• 1. CR 11 - must have legitimate cause of action
• 2. Counterclaim- malicious prosecution
• 3. Financial- risk wasting $
• 4. Reputation- personal & professional
• 5. Filing does not= winning, 52% lose
• 6. 12b(6)/MSJ (motion for summary judgment)
• 7. Juries are not stupid
• Corporations much more likely to file "frivolous" LS, than individual
• EX Allstate sues Kraft for Poptart flammability
Communication with Clients
➢ 20% of clients will take 80% of your time
➢ Malpractice claims almost always include "failure to communicate"
➢ TIPS TO SAVE TIME
1. Clients most needy in first 30-90 days, keep in contact with them during this time and they will usually back off. Dispel myth that case will be speedy.
2. ALWAYS return phone calls, even if you don't have the answer.
3. CC client on almost everything you do. Even if they don't understand it, they will appreciate that you are working. And they will call you less often.
• 4. Give clients cell phone number. If you use your cell they will have it anyway. If you give it they probably won't use it.
Attorney Fees
➢ Rules of Professional Conduct- RPC's
• Three ways
1. Flat Fee- flat fee upfront
• EX Dui=$10,000, some divorce, tax, adoption
2. Hourly- TIP- WRITE IT AS YOU DO IT, accounting for time as you go.
➢ you will be evaluated based on your billable hours.
➢ keep track even if it's not a billable task.
• Keep list of cases, then notate which and what work is done
3. Contingent- % of what you recover
Statute of limitations
➢ Why?
• Evidence- weakens over time
• people die, forget, move,
• documents get lost, destroyed
• Truth- is object
• Closure-not have threat of suit hanging over head
• court congestion
• Secondary Gain-Vengeance/Harassment/Jealousy
• Defendant most hurt by deterioration of evidence
• Tough to prove a negative
• From moment when damages accrue, statute of limitation begins
➢ Statute begins when you "know or should know" you have been harmed.
➢ EX medical malpractice, may not know that you've been harmed for years.
• SL 3 years, but 8 yrs to discover, and 1 yr to take action w/in the 8 yrs.
Statute of limitations- varies from state to state
Tolling the Statute
➢ Events which Toll (stop) the running of the statute
• Just like sports time-out, amount of time on clock when time-out starts, is same amount when time begins again.
• 1. Minor- (not a true toll) stops statute from beginning. Statute does not begin until child turns 18. Date of accident irrelevant, statutory period begins on day of 18th bday.
• 2. Jail/Prison (for Plaintiff/not Defendant) - statute applies to P, and jail impairs ability to bring case.
• 3. Physical Incapacitation (Plaintiff/not D)- Coma, or close to it.
• 4. Out of Country (Defendant/not P) - D cannot be served.
• 5. Active Duty (Plaintiff/not D) D may be served
• 6. Concealment (Defendant/not P)
• 7. Death- (Plaintiff/not D) for 1year, personal representative can bring suit. (Death of D does not toll statute)
• 8. Judge ordered stay
• 9. Bankruptcy (Plaintiff/not D) when you file B, your assets are not yours, your cause of action is not yours, (suit is asset, may be abandoned back to P)
• 10. Insanity (Plaintiff/not D)
• Toll + Relation Back will be exam Question
Claim Statute -Suing govt entity (any part of govt EX school, parks, etc.)-
➢ Vestigial immunity- can bring action against govt, however, claim statute says, before you can sue govt you must file a proof of claim to settle. Must give govt a period of time to evaluate and choose to settle if they wish ~ 60-90 days. And they NEVER, EVER settle. But if you don't, your claim will be rejected by court.
➢ Statute is usually tolled while claim is reviewed
• Martindale Hubbell
➢ Publication- look up firm in any city, also has thumbnail of law in each state, including statute.
• NEVER try a case at Christmas, jurors not happy, not likely to give money to the person who made them be there.
Laches -("lat-cheese")
➢ Only in lawsuits with equitable remedies
➢ "We know statute, but if while statute is still pending, action is taken that indicates that you do not intend to pursue your legal rights, statute may be shortened."
➢ EX House sale falls through, seller decides not to sell, breach of contract. Buyer could sue for specific performance, but if he instead buys another house, seller can fairly assume that buyer will not pursue remedy against him.
• Review PROMISSORY ESTOPPEL-when your words and actions induce reliance in another which results in harm.
Tickler Systems
➢ Lots of dates to keep track of, send reminders X time ahead of date.
➢ NO defense for missing a statute, automatic MALPRACTICE.
➢ Software programs-Outlook, Needles (popular), Abacus, KEEP HARD COPY.
➢ Keep your own calendar of cases & projects you are responsible for.
• Feasibility of case
➢ Find out as soon as possible if it's a dog (poor case).
• Turning Down a Case
➢ CRITICAL that this is committed to memory.
• If there is any doubt that you are their lawyer, you are.
• Must be able to prove that you are NOT their lawyer.
• Malpractice even if not their attorney.
• If you tell them their case is bad and it's not=malpractice.
• If you do not tell them about statute of limitation=malpractice.
• THE ANSWER = SEND LETTER INCLUDING THESE THREE THINGS
• 1. Clear, unequivocal statement you are not taking the case/representing the client. "We are not representing you or accepting this case". Do not dance around it.
• 2. Recommend a Second Opinion "Attorneys can vary widely in their assessment of liability and damages."
• 3. Statute of Limitations "There is an statute of limitations...that is critical to keep in mind." Don't need to state exact time, merely state that a statute of limitations exists.
• "Thank you for meeting with me, it was a pleasure meeting you and I really enjoyed meeting with a fellow -----, blah blah blah. (Mention something personal discussed). I hope we have the pleasure of representing you or your family at some point in the future. Please do not hesitate to contact us in the future if you have any questions."
• Be personable- keep future business in mind.
Frivolous Claims
➢ Generally propaganda from Insurance companies, corporations, etc.
7 Reasons why frivolous lawsuits are rare to non existent
• 1. CR 11 - must have legitimate cause of action
• 2. Counterclaim- malicious prosecution
• 3. Financial- risk wasting $
• 4. Reputation- personal & professional
• 5. Filing does not= winning, 52% lose
• 6. 12b(6)/MSJ (motion for summary judgment)
• 7. Juries are not stupid
• Corporations much more likely to file "frivolous" LS, than individual
• EX Allstate sues Kraft for Poptart flammability
Communication with Clients
➢ 20% of clients will take 80% of your time
➢ Malpractice claims almost always include "failure to communicate"
➢ TIPS TO SAVE TIME
1. Clients most needy in first 30-90 days, keep in contact with them during this time and they will usually back off. Dispel myth that case will be speedy.
2. ALWAYS return phone calls, even if you don't have the answer.
3. CC client on almost everything you do. Even if they don't understand it, they will appreciate that you are working. And they will call you less often.
• 4. Give clients cell phone number. If you use your cell they will have it anyway. If you give it they probably won't use it.
Attorney Fees
➢ Rules of Professional Conduct- RPC's
• Three ways
1. Flat Fee- flat fee upfront
• EX Dui=$10,000, some divorce, tax, adoption
2. Hourly- TIP- WRITE IT AS YOU DO IT, accounting for time as you go.
➢ you will be evaluated based on your billable hours.
➢ keep track even if it's not a billable task.
• Keep list of cases, then notate which and what work is done
3. Contingent- % of what you recover
1.12.11
Jurisdiction-
-the right of a court to hear a case
-Must have Subject Matter & Personal Jurisdiction
-IF COURT DOES NOT HAVE JURISDICTION, ANY JUDGMENT RENDERED IS VOID.
Subject matter jurisdiction in Fed Ct
-Federal laws- civil rights, patents, etc.
-$75k & diversity of citizenship
-Complete diversity- multiple parties
--Each claim must be $75k, cannot add(aggregate) all claims to reach min.
--May have multiple parties from same state.
EX multiple plaintiffs from same state, or multiple defendants from same state, but no plaintiffs and defendants from same state.
--Fix- Dismiss Plaintiff from problem state. Dismissing defendant from problem state may lead to indispensable party issue.
When in FED Ct on STATE law- which state law should apply?
-when in Fed Ct on Diversity- Fed Ct will apply law from state in which it sits.
-EXCLUSIVE jurisdiction- Fed Ct on Fed law
-CONCURRENT jurisdiction- Either/or on diversity & $75k
-If you have FED/St concurrent why one v other?
--Fed faster
--quality of judges higher in fed
--bigger jury pool in fed
--fed jury 6/6, vs state 10/12 for verdict
--fed ct may be uncomfortable for state attorney
-REMOVAL- Plaintiff files in state ct, defendant wants Fed ct., D can file petition for removal of matter to federal ct., but must be timely (30 days from service), AND may only remove to Fed ct if it is proper (matters that could have been filed in Fed ct originally).
12 TYPES OF JURISDICTION-Be able to ID, give definition and example
1.Original
2.Appellate
3.Concurrent
4.Subject Matter
5.Personal
6.Exclusive
7.Supplemental/Ancillary/Pendant
8.General
9.Limited
10.In rem
11.Quasi in rem
12.Removal
Pendant/Ancillary Jurisdiction
-Once Fed ct jurisdiction is established, connected (pendant/ancillary) matters that ordinarily wouldn't be heard here, may be heard for judicial economy.
EX patent case, breach of contract may be added
Appellate jurisdiction
-Look for Prejudicial error of law
-Affirm- we agree with lower ct judgment
-Reverse- winner<>loser
--May appeal appellate decision but difficult to get writ of certiori from supreme ct., must have 5/9 agree to hear.
-Remand- send back to trial level for some additional purpose, may be full new trial, or in-part.
Personal Jurisdiction
Why is it necessary? state cts best versed in state law, and ct established relationship with litigants.
-Ct most concerned with personal jurisdiction over Defendant
Long arm statute- LAS
-Each state has long arm statute- Business, criminal acts, contracts, etc, trigger.
EX International Shoe
-WA claims IS selling shoes in WA and not paying into unemployment fund. IS argued that salesmen in were soliciting orders, but orders are reviewed and approved by St. Louis headquarters.
-Due process- procedural, can we go into St. Louis and make them come to WA?
-"Before you subject yourself to jurisdiction of a foreign ct you must have minimum contacts with that state", as stated by LAS.
-How many pairs of shoes do they have to sell?- "Regular and systematic contact" with the state to trigger LAS.
Waiver of Appearance
-by filing in ct, the party gives the ct personal jurisdiction. If you answer a complaint from a ct that does not have personal jurisdiction, you give the ct personal jurisdiction.
-Cannot waive subject matter jurisdiction.
-1st- check subject matter jurisdiction
-2nd- check personal jurisdiction
-How do you challenge without appearing?
--Special Appearance
--Quash the service on you, ct lacks personal jurisdiction. File 12b2 motion in WA.
--Anything else filed =waiver.
Exceptions/Substitutions to personal jurisdiction
LAS-Long Arm Statute
In rem- if 2 litigants are having fight over property in another state, that state has jurisdiction for purposes of determining rights to that property. Even if no other contact.
EX 2 in california buy boat in Florida, Florida ct has jurisdiction.
Quasi in rem- if we are fighting about anything, but resolution will involve property in that state, then that state has jurisdiction.
Venue
Smaller states- less of an issue/Large states- more complex
In-State Defendant
-Where cause of action arose, or where D, or any of them, resides. (but NOT in county where P resides)(D convenience)
Out of state defendant
-Plaintiff's state residence, or where act-triggering LAS occurred, or where Defendant served. (all counties inconvenient for outofstate D)
-Venue CR 82 & RCW 412.010 et seq.
With a corporate Defendant
-Where corp. has office/does business, or
-Where anyone who can receive service of process resides, or
-where tort was committed, or
-where contract was entered, or
-where corporation has "residence" (incorporated), or
-where the corporation performed the service
Real Estate case-venue=where property is located
Forum non conveniens (inconvenient forum)
Can change venue IF:
-Burden on D/witness is unreasonable, unfair, or a hardship
OR
-Available evidence is located within the venue of the new court
AND
-New court agrees to accept
-Must get permission of the new court
Additional Grounds
-Wrong county
-Cannot obtain an impartial trial
-Judge is disqualified bias or recused
Determining existence of cause of action
-Is this client someone I can help? 1st ID law that applies based on facts.
-Do I have a legal theory, and do the facts support it? Don't get caught up in the gory details of the damages.
-Know what to look for in new clients
-problems
#1- clients lie- will spin things, esp if they've talked to other lawyers
"ok, help me understand how we're going to prove this, I believe you, but..."
Three things every viable cause of action has-must have all three
1. Damages - no damages, no lawsuit, nothing to fix.
2. Liability - of Defendant, someone who did something wrong.
3. Pocket - someone to pay for it. Insurance co. or D with assets.
Judgments good for 7 years, if D gains assets, may collect.
-the right of a court to hear a case
-Must have Subject Matter & Personal Jurisdiction
-IF COURT DOES NOT HAVE JURISDICTION, ANY JUDGMENT RENDERED IS VOID.
Subject matter jurisdiction in Fed Ct
-Federal laws- civil rights, patents, etc.
-$75k & diversity of citizenship
-Complete diversity- multiple parties
--Each claim must be $75k, cannot add(aggregate) all claims to reach min.
--May have multiple parties from same state.
EX multiple plaintiffs from same state, or multiple defendants from same state, but no plaintiffs and defendants from same state.
--Fix- Dismiss Plaintiff from problem state. Dismissing defendant from problem state may lead to indispensable party issue.
When in FED Ct on STATE law- which state law should apply?
-when in Fed Ct on Diversity- Fed Ct will apply law from state in which it sits.
-EXCLUSIVE jurisdiction- Fed Ct on Fed law
-CONCURRENT jurisdiction- Either/or on diversity & $75k
-If you have FED/St concurrent why one v other?
--Fed faster
--quality of judges higher in fed
--bigger jury pool in fed
--fed jury 6/6, vs state 10/12 for verdict
--fed ct may be uncomfortable for state attorney
-REMOVAL- Plaintiff files in state ct, defendant wants Fed ct., D can file petition for removal of matter to federal ct., but must be timely (30 days from service), AND may only remove to Fed ct if it is proper (matters that could have been filed in Fed ct originally).
12 TYPES OF JURISDICTION-Be able to ID, give definition and example
1.Original
2.Appellate
3.Concurrent
4.Subject Matter
5.Personal
6.Exclusive
7.Supplemental/Ancillary/Pendant
8.General
9.Limited
10.In rem
11.Quasi in rem
12.Removal
Pendant/Ancillary Jurisdiction
-Once Fed ct jurisdiction is established, connected (pendant/ancillary) matters that ordinarily wouldn't be heard here, may be heard for judicial economy.
EX patent case, breach of contract may be added
Appellate jurisdiction
-Look for Prejudicial error of law
-Affirm- we agree with lower ct judgment
-Reverse- winner<>loser
--May appeal appellate decision but difficult to get writ of certiori from supreme ct., must have 5/9 agree to hear.
-Remand- send back to trial level for some additional purpose, may be full new trial, or in-part.
Personal Jurisdiction
Why is it necessary? state cts best versed in state law, and ct established relationship with litigants.
-Ct most concerned with personal jurisdiction over Defendant
Long arm statute- LAS
-Each state has long arm statute- Business, criminal acts, contracts, etc, trigger.
EX International Shoe
-WA claims IS selling shoes in WA and not paying into unemployment fund. IS argued that salesmen in were soliciting orders, but orders are reviewed and approved by St. Louis headquarters.
-Due process- procedural, can we go into St. Louis and make them come to WA?
-"Before you subject yourself to jurisdiction of a foreign ct you must have minimum contacts with that state", as stated by LAS.
-How many pairs of shoes do they have to sell?- "Regular and systematic contact" with the state to trigger LAS.
Waiver of Appearance
-by filing in ct, the party gives the ct personal jurisdiction. If you answer a complaint from a ct that does not have personal jurisdiction, you give the ct personal jurisdiction.
-Cannot waive subject matter jurisdiction.
-1st- check subject matter jurisdiction
-2nd- check personal jurisdiction
-How do you challenge without appearing?
--Special Appearance
--Quash the service on you, ct lacks personal jurisdiction. File 12b2 motion in WA.
--Anything else filed =waiver.
Exceptions/Substitutions to personal jurisdiction
LAS-Long Arm Statute
In rem- if 2 litigants are having fight over property in another state, that state has jurisdiction for purposes of determining rights to that property. Even if no other contact.
EX 2 in california buy boat in Florida, Florida ct has jurisdiction.
Quasi in rem- if we are fighting about anything, but resolution will involve property in that state, then that state has jurisdiction.
Venue
Smaller states- less of an issue/Large states- more complex
In-State Defendant
-Where cause of action arose, or where D, or any of them, resides. (but NOT in county where P resides)(D convenience)
Out of state defendant
-Plaintiff's state residence, or where act-triggering LAS occurred, or where Defendant served. (all counties inconvenient for outofstate D)
-Venue CR 82 & RCW 412.010 et seq.
With a corporate Defendant
-Where corp. has office/does business, or
-Where anyone who can receive service of process resides, or
-where tort was committed, or
-where contract was entered, or
-where corporation has "residence" (incorporated), or
-where the corporation performed the service
Real Estate case-venue=where property is located
Forum non conveniens (inconvenient forum)
Can change venue IF:
-Burden on D/witness is unreasonable, unfair, or a hardship
OR
-Available evidence is located within the venue of the new court
AND
-New court agrees to accept
-Must get permission of the new court
Additional Grounds
-Wrong county
-Cannot obtain an impartial trial
-Judge is disqualified bias or recused
Determining existence of cause of action
-Is this client someone I can help? 1st ID law that applies based on facts.
-Do I have a legal theory, and do the facts support it? Don't get caught up in the gory details of the damages.
-Know what to look for in new clients
-problems
#1- clients lie- will spin things, esp if they've talked to other lawyers
"ok, help me understand how we're going to prove this, I believe you, but..."
Three things every viable cause of action has-must have all three
1. Damages - no damages, no lawsuit, nothing to fix.
2. Liability - of Defendant, someone who did something wrong.
3. Pocket - someone to pay for it. Insurance co. or D with assets.
Judgments good for 7 years, if D gains assets, may collect.
Tuesday, January 18, 2011
1.11.2011 Litigation Basic with Bruce Wiener
Weather hotline 206-547-4636
www.washington.edu/alert/index.php
UW open=class is on
-Bring smaller two rule books to class.
-Handouts-$34 check to Bruce by end of term.
Textbook's way is not the only way.
Litigation-process up to and including trial.
-98% of litigation not trial aspect.
-Due process
-Substantive -fairness of law itself, laws fairly applied to all citizens?
-Procedural- enforcement of law, court system, etc.
Superior Court Rules
-In order in which you encounter them in process of lawsuit
-Rule 20- Proper Parties, anyone that had anything to do with same facts/occurrences.
-Rule 19- Conditionally Necessary Parties- "desirable to enjoy complete relief",
EX- 3 car accident-only 2 sued, other 1 necessary for fairness to all, court encourages all parties to be present for permanent resolution.
-Indispensable Party- must be joined or the suit cannot proceed.
-Rule 12b p390- failure to join a party-complaint can be dismissed if indispensable party is left out.
EX lease signed by two, jointly liable, landlord cannot get judgment against one only. Trusts for multiple people, judgment on trust must include all trustees. Judgment that will affect multiples must include all people affected by judgment as parties.
Relation Back Doctrine
- cause of action may be added to suit where statute of limitations has run if it relates back to original cause of action, but may not allow addition of parties at that point. Do your homework- know theories and indispensable parties.
-Pleading initially filed may not be eventual pleading-things change.
-May file to beat statute based on minimal evidence or theories.
-Rule 15- amending supplemental pleadings- may amend once, as a matter of right, before responsive pleading (answer, reply) is filed.
-Courts are generous on this rule 15a- by leave of court or application to other parties.
-15b-amendments to conform to evidence, even after trial. Anytime justice is served-almost never denied.
Alternative Dispute Resolution-ADR
-nothing goes to trial these days without first going thru ADR, court system bogged down.
-"Litigation team"- litigation paralegal-
a. lawyers who use paras for entire litigation process- pleadings>trial,
b. lawyers who use paras for one piece only-trial prep or pleadings or discovery for all cases, specialist, generally only large firms.
-Form Files-are your BEST FRIEND- anything that takes more than 15 min, keep copy. Don't reinvent the wheel, keep yours and make copy of good ones you receive. Ask your firm for form files, use them.
Court System-know it
-State & Federal
-Federal- Supreme Appellate (circuit 9th) Trial (District)
-State- Supreme Appellate (division I,II) Trial (superior)(Dist)
Appellate Court- courts of review, cases have been tried before. Look for prejudicial error of law.
-p30 If appellate can find any reasonable basis to affirm the finding of the lower court, even if for different reasons, they will not reverse. "If they'd done it right you would have lost anyway."
-p32 12 geographic appellate courts, 1 substantive appellate cts (Fed Claims)
Supreme Courts- usually appellate jurisdiction, if original jurisdiction-ambassadors, state as party, etc.
- Marberry v. Madison- fed courts derive power from us const. State courts derive power from state congress.
-Federal Ct- may hear cases involving- fed law or diversity of citizenship & $75k.
-Supreme Cts- 51; 50 state, 1 fed.
-State Superior- no minimum amount
-State District - $75k max
-Fed District- no max, $75k min on diversity, no min on fed law case.
-Fed Law- must go to fed court, may not go to state
www.washington.edu/alert/index.php
UW open=class is on
-Bring smaller two rule books to class.
-Handouts-$34 check to Bruce by end of term.
Textbook's way is not the only way.
Litigation-process up to and including trial.
-98% of litigation not trial aspect.
-Due process
-Substantive -fairness of law itself, laws fairly applied to all citizens?
-Procedural- enforcement of law, court system, etc.
Superior Court Rules
-In order in which you encounter them in process of lawsuit
-Rule 20- Proper Parties, anyone that had anything to do with same facts/occurrences.
-Rule 19- Conditionally Necessary Parties- "desirable to enjoy complete relief",
EX- 3 car accident-only 2 sued, other 1 necessary for fairness to all, court encourages all parties to be present for permanent resolution.
-Indispensable Party- must be joined or the suit cannot proceed.
-Rule 12b p390- failure to join a party-complaint can be dismissed if indispensable party is left out.
EX lease signed by two, jointly liable, landlord cannot get judgment against one only. Trusts for multiple people, judgment on trust must include all trustees. Judgment that will affect multiples must include all people affected by judgment as parties.
Relation Back Doctrine
- cause of action may be added to suit where statute of limitations has run if it relates back to original cause of action, but may not allow addition of parties at that point. Do your homework- know theories and indispensable parties.
-Pleading initially filed may not be eventual pleading-things change.
-May file to beat statute based on minimal evidence or theories.
-Rule 15- amending supplemental pleadings- may amend once, as a matter of right, before responsive pleading (answer, reply) is filed.
-Courts are generous on this rule 15a- by leave of court or application to other parties.
-15b-amendments to conform to evidence, even after trial. Anytime justice is served-almost never denied.
Alternative Dispute Resolution-ADR
-nothing goes to trial these days without first going thru ADR, court system bogged down.
-"Litigation team"- litigation paralegal-
a. lawyers who use paras for entire litigation process- pleadings>trial,
b. lawyers who use paras for one piece only-trial prep or pleadings or discovery for all cases, specialist, generally only large firms.
-Form Files-are your BEST FRIEND- anything that takes more than 15 min, keep copy. Don't reinvent the wheel, keep yours and make copy of good ones you receive. Ask your firm for form files, use them.
Court System-know it
-State & Federal
-Federal- Supreme Appellate (circuit 9th) Trial (District)
-State- Supreme Appellate (division I,II) Trial (superior)(Dist)
Appellate Court- courts of review, cases have been tried before. Look for prejudicial error of law.
-p30 If appellate can find any reasonable basis to affirm the finding of the lower court, even if for different reasons, they will not reverse. "If they'd done it right you would have lost anyway."
-p32 12 geographic appellate courts, 1 substantive appellate cts (Fed Claims)
Supreme Courts- usually appellate jurisdiction, if original jurisdiction-ambassadors, state as party, etc.
- Marberry v. Madison- fed courts derive power from us const. State courts derive power from state congress.
-Federal Ct- may hear cases involving- fed law or diversity of citizenship & $75k.
-Supreme Cts- 51; 50 state, 1 fed.
-State Superior- no minimum amount
-State District - $75k max
-Fed District- no max, $75k min on diversity, no min on fed law case.
-Fed Law- must go to fed court, may not go to state
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