2.24.2011

Handouts
#14- Mandatory Arbitration- RCW 7.06.020
#15- Article on Mediations
#16- Sample Mediation Brief

Discovery Project Due Tuesday
Next Thursday: Resume Review at 5:30pm
-Perkins Coie
-Dorsey Whitney
-Garden City Group
-Karr Tuttle
- And More!
Bring a few questions. What to wear to an interview, what are you looking for in candidates that don't have years of experience....

Why does settlement offer originate with Plaintiff?
-"You don't pay the bill before you get it."
-Defendants reluctant to offer settlement as it may appear weak.

Plaintiff's Settlement Demands
- Client history- Jury will ask how this case affected this person.
- Individualize damages- passed over for promotion, detrimental to charity work, children, etc.

10 Factors (Largely out of your control) that impact the value of your case:
1. Jury
2. Race
3. Gender
4. Economic status
5. Judge
6. Strength of witnesses
7. What kind of day your lawyers having
8. ....
9.
10.

Settlement Brochures
- No such thing as a settlement OFFER. Plaintiff DEMANDS, Defendant OFFERS.
- Every case should get your best effort. No abbreviated settlements.
- Never use words such as "minor" to describe injuries. "Minor concussion, minor cut to the face." Really?
- Never negotiate with yourself. Don't cut your own demand package before a response.
- No such things as a reasonable offer. Both sides start with exaggerated sums.
- Do not refer to your client as the "Plaintiff." Personalize your client.
- Personal history- Include details that will address issues the other side is likely to bring up.
- If it's worth mentioning, it's worth mentioning right. Include details.
- This is your chance to be an advocate. Did it malfunction? or did it BLOW UP?! EXPLODE?
- Don't phrase it as what your client said (distance yourself from statement as if you don't believe it). Phrase client's statements as fact.
- The time you spend drafting settlement will dramatically decrease your trial preparation time. - - And it will be intimidating to the other side, show that you are ready for trial if necessary.

- Settlement Agreements
Rare. Usually money for release. Confidentiality agreements with hospitals, other equitable remedies required, etc.
- Only client may choose to accept settlement. You may withdraw from case over a disagreement with client about value of the case. But you may not file a lien to collect.
- ALWAYS send copy of demand to client for approval. You cannot settle a case that you do not have client approval and consent on.
Settlements not in writing are NOT enforceable. CR 2A


Releases
- Two Types
1. Non-Litigated
Plaintiff --->Release (agree not to sue)---> Defendant
Defendant ----> $ ----> Plaintiff
Plaintiff ---> Holds Harmless ---> Defendant
2. Litigated
Same as above.
+ Dismissal of Lawsuit

Two Types of Releases
Global Release- Release of everyone and everything. (Even unnamed parties.)
Partial Release- Only releases some people and/or things.
Be careful about signing releases! Know what you're signing.
"All injuries known or unknown..."
"Whether known injuries worsen, or unknown injuries occur...."
Partial releases generally only in punitive damages against corporate defendants.

Dismissals CR 41
1. Stipulated Dismissal
Unless it says otherwise it is presumed withOUT prejudice.
2. Voluntary Dismissal
3. Court Ordered Involuntary Dismissal
Failure to comply with court orders, or if parties have failed to take action for the past year.
Will receive notice of OSC Order to Show Cause.
4. 12b Motion, Objection

CR 41(e) If a case is settled after it has been assigned for trial you MUST NOTIFY THE COURT. If it is within 5 days of the trial date you must notify by telephone or in person.

Confession of Judgment
Stipulate to judgment without trial, usually in collections cases.

Distribution of Settlement Funds
Statement MUST be prepared.

Tuesday- Bring Local Rules

2.23.2011

Request to Admit- Not true discovery, can't get admissions about facts and/or documents you don't know about.

Use For:
1. Facts
EX Admit that the accident happened at 5:00pm.
The more facts you can get admitted in discovery, the less you have to prove at trial.
2. Genuine-ness and Authenticity of Documents
EX Admit that this is a true and correct copy of the original.
Pre-approved documents will easier to enter into evidence.
3. Connect Law to Facts
EX Admit that the health and building code requires carpeting be replaced in common areas every 5 years.
DISCOVERY PROJECT- Use one RTA in each of these ways.
Merely because they admit the genuine-ness of a document, does not mean that it is going to be admissible, truthful, or relevant.

NEVER write a request to admit an opinion. You can never get them to admit an opinion.

If you do not respond in a timely manner- DEEMED ADMITTED the entire set!
Watch these carefully!

Drafting Request to Admit
- Don't waste time with stipulated facts. EX Addresses, and other basics.
- Things you need to prove. Ask questions that the other side doesn't want to admit.
DISCOVERY PROJECT- At least one of each. 15-18 total.
- ONE FACT per request. Do NOT make compound. Compound RTA are objectionable. Keep it simple. 10-12 words.
- EX 1. Admit that the following documents are true and correct copies.
a. Lease
b. ...
- Avoid using descriptive words that may be interpreted in different ways. EX Violently ill, dim lighting, dangerous snowmobile.

- Admit/Deny/Object/or "After reasonable investigation responding party lacks the information to either admit or deny, and on that basis deny."

- If you wrongfully deny CR 37(c). Tough to quantify, rarely enforced. Questions that are on the line are likely to be denied. Take small bites, don't go for the smoking gun.
EX Admit that there is no one at Gruel & Drool who regularly reports to you about the conditions of the premises.

Settlement & Alternative Dispute Resolution (ADR)

- Cases under $50k required to go to arbitration
- Settlements do not "terminate" disputes, settlements (or mediation/arbitration) "resolves" the dispute.
- The preparation of the lawsuit may lead to a settlement.
- 72% of winning parties polled said that they would not go through litigation again.
- Reasons to settle: Time, Money, Jury Unpredictability, Counter-Claims

2.22.2011

MIDTERM- 49.5/75 Class average

Discovery Project- Due next Tuesday

RTP- Discovery which is random and not part of a focused effort is not productive or effective.

Hallmarks of good discovery project- 1. Is there a focused, directed attack? 2. How well tailored is your discovery to that goal?

p. 327 BAD EXAMPLE - use standard Washington form (as for pleadings)

"Reasonable particularity" test- "all" or "every" too broad.

... including, but not limited to...(3 or 4 examples of what you want).

...memos, emails, messages, and the like.

Washington does not file RTP's with court. (Enormous amount of paper storage required).

Objection- Relevancy- why would you produce the documents anyway?
1) Harmless
2) Less likely to question other productions
3) No motion to compel
4) Production does not equal admission as to its admissibility
5) Save you time and hassle

Discovery Review- time consuming and tedious, "like panning for gold"

RTPs- Send out to client the next day. Be sure to notate which questions the attorney will answer. Work with client in document production. You need to know what exists that could hurt your case, what is being edited or not edited.

If you are asked for a document and don't produce it you are in trouble, and you cannot use it either.

NEVER release originals. Make a copy.

Bates Stamping- Sequential numbering for all documents- Now done with photocopier or as a footer in Adobe.

Redaction- removing information from a document before duplicating the document and turning the duplicate over to another party in response to a request for production.

NEVER take notes on originals, or allow clients to write notes on original.

ORGANIZE- Documents after production. You will need to be able to locate and produce specific documents as needed. Table of Contents, by topic, chronologically, etc. Whatever works.


CR 34- More than documents. DISCOVERY PROJECT- Include requests other than documents.
Can be used to go look at property of party. p 339
How can you get permission to inspect property of NON-party? CR 45(b)(2) & 45(c)(2) SDT

2.16.11

2.16.11

Discovery Project Due Date Postponed to March 1st.

RTPs
• Extensions are common
• Documents you ask for must be specified with "reasonable particularity".
• In their possession OR control (of employee, accountant, agent, etc.).
• Why should you ask for documents early?
➢ Lost or misplaced
➢ Time to review
➢ More effective deposition
➢ Assess strengths and develop theories/defenses
➢ Evaluate claim value
➢ More work and expense
• Why should you wait to ask for documents?
➢ More focused

You may send documents in the manner in which they are ordinarily kept,
OR organized to correspond with the categories in the request. CR 34b

ESI Electronically Stored Information
-Duty to preserve

Work Product can be invaded if "substantial need" is shown.

Vague or Overbroad requests
- Objectionable

Confidentiality (party-party)/ Protective Orders (party-judge) CR 26c
- Trade Secrets
- Customer lists

MIDTERM REVIEW
Read questions carefully. Know what the question is actually asking for.
• Nothing from Ch. 1

Ch 2
• Know court system, where fed comes from (Article 3 Const.)
• Jurisdiction
➢ Subject/Personal- Examples
• Complete Diversity
• Eerie RR- the Eerie doctrine is designed to prevent forum shopping
• In rem/Quasi in rem/Minimum contacts (LAS)
• Motion to Quash/Special Appearance- Personal J may be waived.
• Cannot confer subject matter J to the court
• Venue

Ch 3
• Taking/Turning down a case
• Statute of Limitations- Tolling
• Claim Statutes- for suing govt entity
• Laches
• Triangle- Liability/Damages/Pocket
• Types of Billing- Hourly (divorce), contingency (personal injury), flat fee (adoption)

Ch 4
• Interviewing fact witnesses- how to approach
• Direct vs. circumstantial evidence
• ER 201 Judicial Notice (time saving)
• Relevancy ER 401
• Character vs. Habit
• Authentication/Self authentication ER 901/902
• Best Evidence Rule
• Experts- not just rocket scientists. Know 4 hallmarks
➢ Knowledgeable
➢ Persuasive
➢ 50/50 P and D
➢ In active practice

Ch 5
• Real party in interest (guardian ad litum w/ minor)
• Doe as placeholder for known defendant, with unknown name. Not Does 1-100.
• Injunctions
• Summons service

Ch 6
• Request for extension to RESPOND (not answer)
• 12b(1-7) Challenges
• Default Judgments
• Motion Practice- Dispositive & Speaking
• CR 6 Time and counting

Ch 7
• Motion to dismiss
• Motion for summary judgment
• Motion for more definite statement
• JNOV

2.15.11

2.15.11

This is what you will receive if you send your interrogatories too soon:

"Unknown at this time. Discovery and investigation are continuing and ongoing and nowhere near completion at this time. Consequently, this responding party reserves (his/her/its) right to update and supplement this response if and when additional information/evidence is obtained."

Judicial Notice- If one party objects to evidence, other party may ask court for Judicial Notice. As a practical matter, evidence which is likely to accepted will not be objected to.

MIDTERM- No Discovery questions, up through and including chapter 7.
- Evidence Rules

Interrogatories- Purpose is to think about your unique case and LEARN. Copying does not accomplish this goal. Clear, cogent, concise, open-ended, non-yes/no, information gathering questions.

News- Outrage at Italy's slander law. Same in U.S., republish defamation, even when attributed to original source, is slander.

Interrogatories-
- Instructions not necessary, but should be included if you intend to use as a writing sample.
- Purpose- who to depose, what documents to request, find out what is there to be obtained.
- Identify- people, documents, facts.
- Contention Interrogatories- INCLUDE 3-4 IN DISCOVERY PROJECT
• "Do you contend/deny....that the property of Gruel & Druel was negligently maintained?"
• Answer is always YES
• "If so, please identify
➢ a. All persons with knowledge of your contention/denial
➢ b. All facts which support or tend to support your contention/denial
➢ c. All documents which support or tend to support your contention/denial

• "For each affirmative defense in your answer please identify
➢ a....
➢ Great use of interrogatories, addresses multiple defenses with a single question.

p 281 Summary Paragraph- DO NOT USE/ANSWER (overbroad, vague, includes privileged info)

Overuse of N/A (not applicable). N/A does NOT mean no. It is an improper response.
1. Were you drinking? N/A- improper response, yes or no.
2. How fast were you driving? N/A- proper if person was not driving.

How to answer interrogatories
- 1. Engrossed- Incorporate question in answer.
- 2. Separate Sheet- Answer questions on a separate sheet.
- 3. Same Sheet- Answer questions in space left after question. (Even easier in electronic form)

- Answers must come from client and should be written in first person.
- Procedure-
A.Send to client the day that the rogs arrive.
B.Indicate in advance the questions that the client cannot answer (experts, legal theories, etc.)
C. Always allow client to write first draft of answers. (Include pre-paid return envelope)
D. Go over responses with client, clarify, rephrase. Client must be comfortable with answers.

Objections to Interrogatories
1. Privilege
2. Irrelevant
3. Overbroad/Vague/Unintelligible- narrow as to time and scope
4. Unduly Burdensome

Identification of document in which answer can be found is an acceptable answer.

Interrogatories & RTPs may be combined in same document or drafted separately.
Request to Admit may not be combined with any other discovery device.

CR 35-
When liability has been established.
-Parties only.
-Only when physical or mental condition is at issue in the case.
Used to determine
- If there is objective evidence of subjective claim
- If there were previous/subsequent injuries that were the cause of stated injuries
- Paternity, etc.
- Fraudulent/Exaggerated Claim
and prepare expert to testify as to nature and severity of injuries

Motion to Compel- Must be preceded by Meet & Confer CR 26i
If party refuses to cooperate- CR 37 Motion to Dismiss for failure to cooperate in discovery, claim does not state a cause of action

Arranging for the Examination of an Opposing Party
- CR 35 By Adverse/Third Party (at fault party)
- L&I/PIP- IME- Independent (insurance) Medical Exam - First Party
- Companies that provide- MCN, Haelen, OMAC
- No such thing as an impartial expert
Create detailed chart of all treatment, doctors, medications, etc. received.

Preparing the Client
- Clients will be apprehensive, but reassured by your presence. Never let them go alone.
- CR 35 allows you to attend and record (audio) the exam
- Not unlike deposition preparation
- Client should be prepared to discuss their history/condition/medication

During the Exam
- As in deposition, you will not win. Play not to lose.
1. You are heading into the Lion's Den. Expect to be observed from the moment you pull into the parking lot.
2. Everybody is a spy. No discussion of case at the office, at all.
3. Exams almost always involve tricks. "Hop up on the table." Accidentally drop things to see if you'll bend to pick them up. "Does that make your teeth itch?" Listen carefully to questions and be honest.
4. Don't be Sara Burnhart or John Wayne. No dramatizations, no tough-guy routine. Just be honest.

Medical Reports
- You have an absolute right to a copy of the report.

CR 34- Most Underutilized Discovery Technique
- Not just for documents!
- Any physical evidence can be produced with this device
- "There are 4 ways to get documents, one point for each you can name."
• SDT- Subpoena duces tecum, documents from non-party
• RTP- Request to Produce CR 34, docs from party
• CR 30b(5) docs from party at depo
• CR 33c business records as answer to interrogatory
EX Please ID all guests of the Chalet who rented snowmobiles from 1/1/09 to present. Answer- A. John, Bill, Ted, etc. Or B. The information called for by this rog is contained in the rental ledger of the Defendant. (Must produce ledgers).
CR 30b(5) may also be used to produce documents at deposition
- Drawback- can't review and ask follow up questions
CR 34 Glitch
- Does not require you to produce the documents in 30 days, requires you to respond to the request in 30 days. In document heavy cases it may be helpful to produce a list of documents that will be produced as a response.

2.10.11

Handouts
#12 Articles on paralegals (2)
#13 How to improve your writing through horrible example!

In-Class Deposition
Writing questions to get the most information
Liability-"Tell me everything that contributed to the accident."
Damages- mental/emotional/physical/loss of earnings

Interrogatories
Area that is changing the most- disappearing.
30 days to craft a response, not a hotbed of facts.
Potential for abuse, especially in states with no limits. Most states are curtailing or eliminating. No interrogatories in Oregon. 40 in Washington. 25 Federally.

Written questions that other side must answer under oath within 30 days.
Acceptable to answer a question by referencing a document. EX "That answer is in my tax returns."
Sets- in states with unlimited interrogatories, numbered sequentially.
25=25, can have subparts, but
EX Did you ever report rats? If so please state A. When you reported. B. To whom you reported. C. Nature and content of report. D. All action taken in response.
EX A. Did anyone else report rats? B. Has anyone ever fallen due to a rat?.... BAD. NOT Subparts! No stand-alone questions as sub-questions.

Purpose of Interrogatories
Pro- Simple, inexpensive, efficient.
Can't respond with "I don't know". If within control or custody, must find answer.
Supplemented- updates required -MIDTERM QUESTION
Con- Time to draft self-serving answers.

How to Draft Interrogatories
Clear
Cogent
Concise
- Clear, simple, direct. Less likely to be objected to or evaded.
- Think "can I read this aloud to the jury?"
- Discovery Project- Think first! Review pleadings, consider where you're trying to get, what are issues, what are causes of action, what do I need to prove? Come up with plan before you start writing.

p 275- BAD EXAMPLE
Follow the same form for pleadings.
Definitions and instructions are NOT required.

Applicable Time Period
For documents requested- usually you can go back 5 years. Almost never more than 10 years.
Be careful about being overbroad- include time frame in question. "In the last 5 years..."

Supplementation
Conditional Supplementation in Washington- Interrogatories must be updated if:
1. Incorrect
2. New info since the response
3. Experts
4. Person Most Knowledgeable
5. Asked by opposing party

p 277 B. Instructions for Continuing Interrogatory - to require updates.

Good to ask questions that identify people. Can't send interrogatories to non-parties, but can depose them. Be broad when seeking people. "Please identify anyone with knowledge of the fall." Don't limit to who "saw" the fall, etc.
Experts- you won't find out until opposing party must identify
Don't ask interrogatories that give you yes or no answers, unless you follow them with "If so.." subpart.
"Reasonably calculated to lead to discoverable evidence"
Who, what, where, when, why.
"Please describe, in detail...", "Please explain...", "In your own words..." Narrative questions are allowed in interrogatories.
Find out where discovery is going to go- what documents we need, who to depose, what admissions to request, etc.

2.9.11

Pleadings returned

p 250
Depositions- Disadvantages
-Expensive
-Time consuming (preparation)

DVD's that instruct clients on how to be an effective witness
- OK, but can be too general.
- Not very personable or caring

Notice of Depositions- CR 30 not less than 5 days -MIDTERM QUESTION

CR 30b(5) Can request that documents or things be brought to deposition
CR 34 for parties
Non-parties subpoena duces tecum (SDT)
You can have them bring documents, but should you?
What if you end up with a huge box of documents at deposition?
Get RTP for documents, and review before deposition.
Can be done is any order. Have a plan.

Preparation for Deposition
Preparation is key
Generally held in office of party that sets the deposition
Depose in county of deponent's residence

Defending the Deposition
Requests for documents must be reasonably calculated to lead to admissible evidence
Tough to beat a discovery request, admissibility is a different story
Preparing the client for deposition- MOST IMPORTANT PART
Cases are won and lost in deposition
If you do a good job preparing your client, it will be fine
Schedule preparation PRIOR to day of deposition
Effective prep cannot be done effectively the day of deposition
-client will be nervous and not listening
-too late to do anything about what they wear or bring, etc.
Should be scheduled within a week of the deposition

Careful with coaching, a good lawyer will ask your client if they were told what to say, it is not privileged, only what lawyer said is privileged
Always tell the truth, lawyer can deal with weaknesses of case, but not lies from client

Most important points to get across to client
- What to wear (trial as popularity contest)
Impression of deponent- will jury like and believe client
Dress neat, but conservative. Suit not necessary. "Like you're visiting your grandmother"
Women- nothing skanky
- Not a race, take your time. Make sure you understand the question.
- DO NOT volunteer information
"Listen during deposition, if the voice you hear is your own, you are doing something wrong"
Answer simply, directly, and in as few words as possible.
- Be friendly, polite, but don't suck-up. And do NOT get angry. You can get upset, emotional, but not angry. If you really want to get back at them, maintain your composure.
- Don't be shy about clarifying the question. Do not answer questions you don't understand.
- Anything your client uses to prepare for deposition is DISCOVERABLE. Be careful what you use to prep.
- Empower your client to use- I don't know/I don't remember/I don't recall.
- Estimate vs. Guess. You may give estimate if you reasonably know, but do not guess.
- Don't look to lawyer for answers. No conference with client during deposition, except to discuss privilege.
- "We're playing for a tie." You NEVER win. What you want is not to lose. Don't try to win over the other side, it won't happen.
- Mock depositions - Not a bad idea to run through a few sample questions. But a full mock deposition is costly, and you cannot predict all possible questions. Don't want to look rehearsed.

Paralegal Role
- Taking notes - no script, follow up questions are critical. Listen. Be flexible.
- Keep Deposition on track
- Impressions of deponent

Always review deposition transcripts with client before trial.
Transcripts take time to get. Plan ahead.
Transcripts may be reviewed and corrected within 30days. And should be.

Summaries
Can be months or even years before trial
Summarizing deposition transcript can save time for others working on case, and help you review the case later on (page line summary)
Do summaries as soon as possible after deposition
Form #1 - Bruce's favorite (pull out key elements)
1page of summary for every ~20pages of transcript
Can also organize by chronology or topic
Page Line Summary- most helpful lawyer

EXAMPLE DEPOSITION p 473
Is my lawyer asking questions that are designed to bring out the information we want?
If there are gaps, help fill them in.
- Find out about deponent- is he married? kids? how old?
- When deponents don't answer questions "right after graduation" when was that?
- Don't assume, for questions that assume, back up, ask foundational question.
- Be specific. Say what you mean and mean what you say.
- Statements that are not questions. Make sure that if there is a question on point, it is asked.
- Follow up, get to specifics, what contrast media is used?
- Be careful about paraphrasing - "I would like for you to tell me to the best of your recollection, exactly what he said."
- Establish environment "how much time did you and the doctor spend in each other's presence on the day in question?"
- "Can you explain what you mean by that," open ended questions are great
- "Whose job is it to stock the epinephrine?" "Where is it kept?" "How long would it take to get to get it?"
- Obviously a previous issue between tech and doctor. Look into it.
- Hearsay is not a proper objection in a deposition, only at trial.
- "This event" too vague. Questions should be clear and specific, so that they could easily be understood if read to a jury.

Michellson
- Impression - fencing with lawyer, continuing to correct x-ray dept.
- "What is proximity of pharmacy to radiology department?"
- "How long were you gone?"
- Save the theatrics for the trial. Impeaching him in the deposition serves no purpose.

Tomorrow
In Class Deposition- each person gets one question on liability, and one on damages

2.8.11

Handout #11- Privileges
Tomorrow Night- Pleadings returned
MIDTERM- next Thursday

Discovery
p 219
If you do your discovery right there are no surprises at trial, contrary to tv depictions.
Inherent conflict- giving the other side information may damage your client
Can fix almost anything that you know about, best to get the weak points out in the open.

Purpose of discovery
1.learning stuff
2.eliminating issues
3.preserving testimony

Discovery Project- use your bullets wisely (efficiency). get to the meat of the issue.

Start with Theory- be solid in your causes of action before starting discovery
Set Routine?- every case is different, be flexible in how you proceed. Don't be too predictable.

5 Types of Discovery
1. Interrogatories
2. Depositions
3. Request for Documents
4. CR 35 Physical/Mental Exams
5. Requests for Admission

Limits on Discovery
p 230

Communication Privileges (8) (Need All 3 parts)
a) Confidential Communications
b) Made within a protected relationship
c) And which are made with NO third party unnecessary to the relationship present (think: Erik & Lyle Menendez! (confessed to doctor in earshot of receptionist))
(comm. privileges different- not work product, 5th Amendment, defamation within pleadings, etc.)

1. Attorney Client RCW 5.60.060(2)
Future acts not covered.
2. Physician Patient RCW 5.60.060(4)
Don't need to be doctor, anyone you consult for medical advice (chiropractor, naturopath)
90 days after filing, claimant deemed to waive. 5.60.060(4)(b) - MIDTERM QUESTION
3. Psychologist-Client 18.83110
4. Priest-Penitent RCW 26.44.060
You don't have be a priest, any spiritual advisor, someone who functions in an advisory capacity.
5. Marital
Confidential communications, during the marriage are privileged. Divorce does NOT destroy privilege.
Exceptions- litigation against each other, crime of violence, one spouse against child.
6. Spousal Incompetence
One spouse cannot testify about ANYTHING (not just confidential) provided the other spouse objects, only applies at trial.
7. Optometrist- Patient
Not an ophthalmologist (physician)
8. Public Officer RCW 5.60.060(5)
Cannot be examined as to official communications if the public interest would suffer.
EX Mad Cow Scare, AIDS tainted blood.
Where is the safety check? In Camera review- Judge's chamber review
9. Grand Juror 10.27.090
Cannot be compelled to tell what happened in the proceeding. Different from every other privilege, cannot be waived. Court can issue gag order. - MIDTERM QUESTION

Journalist Privilege?
Branzburg v. Hayes (1972)
Public has a right to every man's evidence. As a matter of Federal Law- no such privilege.
States enacted Shield Laws- to allow journalists to protect sources.
Better to stop crime than write about it. Judges usually side with 6th Amend. over 1st Amend.

Privileges can be WAIVED by privilege holder.

Inadvertent Disclosure of privileged documents = not doing your job!
If you produce documents that are work product, you open the door, privilege is waived in full.
Mistakes happen, but keep it to an absolute minimum.

Market Share Liability- EX Cigarettes caused cancer- will assess liability according to market share.

5th Amendment- state cannot compel a citizen to testify against himself.
(cannot be asserted during cross-examination) Usually does not apply to civil cases.
Criminal exceptions-
1. If statute has run, state can compel you to testify to what you know.
2. If granted immunity.

Confidentiality Agreements/Protective Order
Generally happen when trade secrets, customer lists, etc. are at stake.
You are responsible if that information gets out. Keep under lock and key, and destroy after.

p 236
Mutual Disclosure CR 26
Only Federal- State-no duty to disclose
Doesn't do you that much good anyway- 30-90days in advance of trial, will turn over information helpful to their case, not yours.

Voluntary Cooperation
Thin line of reasonable resistance.
EX "test analysis and reports" never asked for tests. Withheld and upheld.

Deposition
Misconceptions
1. To learn about case -FALSE Depositions only effective if you are prepared. You must know your case.
"The key is not the will to win, everybody has that, it is the will to prepare to win that is important."
EX Bruce to Coroner "Did somebody die?"

p 249
Depositions
1. Oral - spontaneous, see reactions, ask follow ups, no help.
2. Written Questions
3. Telephone
If they're worth deposing, they're worth deposing right.
Limitations on time exist in federal rules, and are creeping into state rules as well.

Types of Roles In Deposition
1. Taking deposition (deposing deponent)
2. Defending
3. Attending (EX attending deposition of a co-defendant) You may ask questions as well. Your role may be small or large role.
Attorney who "noticed" (set) the deposition asks questions first.
How do you find out about depositions? Subpoenas. Everyone who has appeared in the case must be put on notice.
Depositions may take place ANYWHERE, but usually in law office.

2.2.11

Discovery- did not exist in modern form until 1930's
- Your case is only as good as your discovery
- Criminal, everything inculpatory and exculpatory must be disclosed
- Civil, not so
- Playing 20 Questions will improve your discovery skills
- Based on Questions- should be able to determine your theory

CR 26
Discovery is the process of learning about the case
Interrogatories, Depositions, CR 35 Exams.
Three Purposes
1. To preserve testimony
- How? All are under oath, and penalty of perjury, cannot be changed.
2. Eliminate undisputed facts/issues
- In every case there will be some agreement. Narrows the area of dispute.
3. Ascertain facts and information ("learn stuff")
- Find out how strong the respective cases are, what theories the other side has, other parties that may be added, etc.

CR 401- Relevancy- 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.
-You can ask about anything!
-Cast with broad net, be creative.

"Fishing Expedition" - Not allowed
- Unreasonably cumulative/duplication
- Obtainable from a more convenient, less expensive source
- Unduly burdensome/expensive

Admissibility vs. Discoverability
Can you ask questions that are not a matter of law, but solely for purpose of impeachment?
EX Have you claimed bankruptcy, had substance abuse problem, etc.
Yes. But- it is not necessarily admissible.

Business Documentation
Ordinary course of business vs. Anticipation of litigation
EX Incident report after a fall in a store. May or not be discoverable depending on which category it falls under:
Anticipation of litigation = Work product- privileged, undiscoverable. May be invaded- Must show "Substantial Need". EX Evidence destroyed by testing, scene that has been destroyed. Not doing your own work does not constitute substantial need.
Ordinary course of business = Discoverable, EX always prepare incident report no matter what.

Be PRO-active. The best defense is a good offense.

Experts
Work Product until they're not work product.
Once you designate as to who will testify, they are discoverable
Interrogatories- Have you retained an experts? If so please.... Waste of a question, won't tell you until they have to.
County will tell you deadline for designating experts.
Wait for designation, and then take deposition.
Experts used for preparation of case are considered work product, and are privileged unless you can show substantial need. EX They are the only expert.

Protective Orders CR 26c
When discovery is abused, questions design for:
1. Annoyance
2. Embarrassment
3. Oppression
4. Un-due Burden/Expense
EX Personal, embarrassing questions. "Paper you to death"
Judge has substantial power- can deny discovery, limit breadth, limit number of people deposed, limit discovery to one method, gag orders (discovery designed to illicit trade secrets, etc., prevents info from becoming public), in camera review (court review in private to determine relevancy).

CR 26e
Do you have to supplement your interrogatories if you acquire new information?
In WA- No. With many exceptions. Experts, Person Most Knowledgeable, etc.
As a practical matter you DO need to supplement.

CR 26i
Meet and Confer
Court will not hear any motions or objections to discovery unless counsels have conferred. Judges do not like to get involved with this. Do your best to resolve it on your own.

CR 27
Perpetuation Deposition
For people who will not be available at trial. Used in place of testimony.

CR 30
Depositions- Only non-party device for discovery
From time you file complaint, cannot take deposition for 30 days, unless defendant has already started discovery. (To give defendant adequate time to retain counsel to protect their interest.)

Parties- Do not need to subpoena a party, need only give notice of deposition. Professional Courtesy- call to set date with other side.
Everybody Else- you ALWAYS subpoena. (Witnesses, even relatives, etc.)
- How to soften blow. Call them, let them know that "a subpoena is a necessary formality, subpoena will help you justify to your employer that you must attend, can change the date if you need to. Thank you so much, we'll see you then."
- Non-Party, Must be served in County of Residence.
- Party, may be served in county where case is filed.
- Non-Washington Domiciliary, must be deposed in county of residence.

CR 30b(6) Subpoena for Unknown People
"Subpoena for Person Most Knowledgeable" literally. Other side must provide name.

Depositions
Typed and signed by deposed party, may make changes, but these changes may be noted by other party.

CR 30h
May not confer with attorney during deposition unless discussing a privilege. (But you may need to go to the bathroom, and your attorney may need to go to the bathroom too).

CR 31
Allows you to write out questions, other side types their questions, questions are then read to deponent.
Drawback - Can't see reaction, time to compose answer, etc., basically become interrogatories. Why would you do this? It's CHEAP. No travel, attorney time, etc. But if they're worth deposing, they're worth deposing in person.

Interrogatories CR 33
General Form- Write Question- Leave space to leave answer
But in Discovery Project- DO NOT leave space.
You can read the other sides interrogatory response into record, but not your own. Why? Attorney helped right them, and they are incredibly self-serving. Contain hearsay.

CR 34 Request to Produce - RTP's
Documents and THINGS!
Broad and encompassing, highly underutilized. EX guns, machinery, anything relevant. Can enter property for examination of scene, etc.
*Discovery Project- use for something other than documents. Be aggressive and proactive.

CR 35
Physical and Mental Examination
Both parties now entitled to copy of examination.

CR 36
Request to Admit
Technically not a discovery, in order to get admission, you must already have documents.
Advantage- No need to authenticate. Saves time. Key facts only here.
EX admit that you were drunk, admit that you have never driven a snowmobile, etc.
The more you can get the other side to admit, the less you have to prove.
Even if not enough for summary judgment, it will significantly simplify your case.

Admission in Error- Can ask court to allow a retraction (CR 60). But good luck.
WA- Deemed Admitted State- If you don't answer, deemed admitted. DO NOT fail to timely respond.

CR 37
Discovery Sanctions
Wa. State Physicians Inc Exchange v. Fisons Corp (1993)
122 Wa. 2d 299/ 858 p.2d 1054
Changed law on "hide the ball discovery"
Prior law- "intentional withholding of documents or information" = violation of discovery
Subsequent law
+ "Fair and reasoned resistance to discovery is not sanctionable"
- "misleading, concealing, or evasive responses" are not permitted
You must be careful when resisting discovery.

Makanvand v. Allstate Insurance
Summary Judgment entered by Judge due to non-cooperation in discovery.

2.1.11

Handout #10- Motion for Summary Judgment

Also- please staple pleadings, complaint on top.
-2 or 3 well plead causes of action is sufficient

Look over Depositions & Discovery rules CR 26-37

CR 7- Pleadings, State defers to Local Rules for pleadings and motions
King County- 14th largest country in the US
Local Rule 7- three pages long, very detailed

Local Rule 7(4)(b)(5) Motions
• 5 required sections
• 7(5)(b)(1)- specific relief
EX Florence Landis Motion
• Why aren't evidentiary documents attached? ER 201 Judicial Notice
• 7(5)(b)(6)- Page limit
• Either party may file a motion- other party Reply
• Proposed Order - draft order for motion you wish to have granted, Judge will sign.

• How many days? "Five days" = five calendar days, "five court days"= five court days
• "one week" = what does that mean? go to website, call clerk, find out! (probably seven calendar days, or five court days)
• Furlough Days- courts closed due to budget cuts
• Need enough time before trial to have your motions heard

• Motion for Reconsideration KCLR 7(6)
➢ KCLR 59 anytime a judge "screws up", you can file within 10 days for motion to reconsider, which asks judge to correct mistake. Requires:
• Newly discovered evidence- something that has come to light since the judge ruled.
• And WHY you didn't have the evidence previously
• If judge finds the motion meritorious, the other side may file an opposition, do not file one automatically.

(If you can't find what you're looking for under Local Rule- Check corresponding CR)

P 194
Motions-
• Speaking Motions- motions made during trial
• Dispositive Motions- motions that will dispose of something
• Why are motions not pleadings? Pleadings frame the issues; motions are micro-examinations of intricacies of case.
• Number of Motions is Infinite
• "Moving Party"- the party making the motion
• "Responding Party"- the other side
• Memorandum of Points & Authorities- "Memo of P's and A's"
• KCLR 7(5)(b) Form of Motion and Responsive Pleadings
➢ Combined with Memo into one document
Declaration vs. Affidavit
• Declaration- statement under penalty of perjury (most often used)
• Affidavit- notarized statement
• Filing- same as pleadings, one to court, one to opposing party, one to judge.
• Oral Arguments are becoming a rarity.
• Proposed Order Required-Bring it with you, judge can tweak if necessary.
• Notice- you can always give MORE time. Professional courtesy- dictates that you clear the date with the other party.
• Tentative Rulings- in some places, on heavily congested court days, call in phone line will let you know what Judges tentative rulings are the night before. Others will let you know day of. Intended to shorten amount of oral argument time.
• Sanctions- when you file motions/oppositions in bad faith, you will not only lose, but be sanctioned as well.
• You can file a motion for anything- EX "motion to knock it off"

• Motion to Quash also known as Special Appearance
• Motion for Summary Judgment- CR 56
➢ If, after discovery, there is no factual dispute, either party may ask Judge for SJ, as a matter of law.
• CR 56c - 28 calendar days notice required for motion,
➢ 11 days for opposition
➢ 5 days for reply
• You may set motion for summary judgment at any time at least 14 days before trial
• When would you calendar your SJ deadline? Must be finished and FILED 42 days early, calendar 90 DAYS before trial!
• CR 56- no details as to page limitations
➢ Go to Local Rules
➢ You can ask for court permission to extend page limitation
• CR 56e
➢ Summary Judgment replaces trial, pleadings not sufficient, evidence must be submitted.

Always file a Reply?
• pro- Your argument will be last in Judges mind
• con- Judges don't want reiteration of motion

Notary- being a notary is extremely useful. You should become a notary.

p 207
Types of Motions
• Motion In Limine- Motion to limit evidence ER 403, always argued before trial.
• Motion for Judgment as a Matter of Law- mid-trial summary judgment
• Judgment Non Obstante Veredicto- JNOV Judge sets aside jury verdict and gives their own.
• Jury Nullification- Judge takes rights away from jury
• Motion for New Trial CR 59- Motion for reconsideration (many states require motion for new trial before appealing)
➢ Sometimes used as bargaining chip to force plaintiff to take less $ than awarded by jury.
➢ 10 days to file
• Motion to Tax Cost- filed by losing party to reduce cost bill.