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