3.31.11 Business Law

Class PowerPoint slides available on class website

Transactional Lawyering
• Looks at law in a different way- Preventative
• Trying to find out how to avoid risk/litigation
➢ EX Employment Manuals
➢ EX Business Form- Corporation, LLC, etc.
Provide Option based advice

Contracts
o Important focus- touch every area of law

Sources of Law
Constitutions- Fed/State
➢ Protects individual rights from government action
• Right to privacy protections stronger in WA
• Right to bear arms stronger in WA
➢ Forms justice system

Legislation- Fed/State/Local
➢ Derives power from Const. Art. 1 Sec 8
➢ WA Const. more restrictive of government power
➢ "No one who love sausage or law should watch either one being made"

Judge-Made Law
➢ Federal- from published appellate court (changing to include unpublished opinions)
➢ State- from published appellate court
➢ www.courts.wa.gov - sign up for email of court opinions

Agency Regulations- Fed/State
➢ Washington Administrative Code
➢ Code of Federal Regulations

The Court System
➢ The 3-tiered system
➢ Trial Courts/District Court
➢ Intermediate court of appeals-Division/Circuit
➢ Supreme Court

Federal Courts
➢ Federal Law
➢ Diversity + 75k

Primary Authority
➢ Binding
➢ Statutes, Case Law, Constitutions

Secondary
➢ Persuasive/Non-binding
➢ Good research tools
➢ Restatements- Treatises treated with great respect by court
➢ Uniform Laws Annotated- Uniform Commercial Code- for uniformity across states

The prima facie case
➢ Elements of the case- from statutes, case law, etc.
Defenses
➢ The basic defenses
• I didn't do it
• It was legally justified
• It doesn't matter whether I did it or not because of procedural barrier

IRAC
➢ Issue
➢ Rule
➢ Application of rule to facts
➢ Conclusion

Procedural Issues
➢ Camreta Case
➢ Standing
➢ Case or Controversy
o RAP 3.1- Washington's "Aggrieved Party" rule

Law of Torts
The Dilemma
Advising Clients
➢ How to avoid risk
➢ The Rahman case
➢ Respondeat Superior
➢ Scope of Employment
➢ Legislature intends to override

Intentional Torts
Defamation/Libel/Slander
➢ Statement
➢ False- reckless disregard
➢ Published- made to another
➢ Causes injury
Defense: TRUTH

Assault

Battery

False Imprisonment
Defense: Reasonable, justified

Invasion of Privacy/Commercial Exploitation
Reed v. Pierce County

Outrage

Fraud

Interference with Contracts
➢ Existence of valid contract
➢ Knowledge of the relationship
➢ Intentional interference
➢ Damage

Negligence
➢ Duty
➢ Breach
➢ Causation
➢ Injury

Negligent Infliction of Emotional Distress

Contributory Negligence/Assumption of Risk

WA is only state to completely waive sovereign immunity
Joint and Several Liability
➢ Even defendant only 1% at fault may be sued

Strict Liability
In participating in some limited activities, a business will be liable for harm even though no duty was breached; no intentional tort committed.
EX Product Liability
Defense: Assumption of risk/misuse of the product

Damages
How do you determine value of case?

3.30.11 Criminal & Family Law

-Get copy of WA and FED Constitution
-Be PRECISE in your writing. Short sentences that say exactly what you mean to say. Vague is not an option.
-Bring State rule book to class

• -Is it a Prosecutor's job to win?
• -What is truth and justice?
• -RPC's Rules of Professional Conduct
o Apply to Attorneys and Paralegals

• Laws come from legislature- Go to Olympia to watch
• Sunset Clause- adds expiration date to laws, requires review every (x) years
o Our system tries to correct law by adding more laws, become contradictory and confusing

• The Constitution
• Washington and State- When do we apply?
• Source of Law
o Jurisdiction- If you break federal law- federal court
• If you break state law- state court
o Limitation- Can the government single you out?
• Authority- Govt derives its authority from Fed Constitution
• When Fed Const is silent, State Const applies
• Areas at Issue:
• Statements and Confessions
• Suppression of Evidence
• Search and Seizure -
o Fed- 4th Amendment
o State- Article 1 Section 7-
o Read it
o Look for case law- Wa Ct Ap/Sup C

Limitations of Governmental Action
• Indictments
o Fed- Grand Jury
o State- Notice & Complaint and Arraignment
• How do we convince a Judge to release?
• FOR NEXT WEEK- What are the criteria for release in WA on felony case?
• Write one paragraph convincing Judge to release without bail for Arnica
• Go to criminal rules

• Preliminary Determination- Appear before Judge (before charges filed) flash decision
o Released or held
o "to wit" = specifically
• Arraignment- to get personal jurisdiction- Notice
o Court must read charges and allow accused to enter a plea
o Within 14 days after Information (prosecutor's statement of accusation)
• Pretrial Hearing
o Suppression CrR 3.6- Physical Objects
• Preliminary showing to judge for motion to suppress
• Motion to suppress- Usually the issue that decides the case
• Burden is on defender to prove impermissible seizure
• Bulk of work and bulk of appeals
• 4th Amend.- Unreasonable Search & Seizure
• Art. 1 Sec. 7- State version, more restrictive than Fed.
• Proponent of evidence has the burden of proving admissibility
o Confession CrR 3.5- Statements
• If a statement is offered as evidence the Judge must set hearing to determine admissibility
• 5th Amend.- right to remain silent
• Choice/Knowledge &Voluntariness
o Burden- State must prove that statement was made knowingly and voluntarily
• Miranda
• Lawyer- 6th Amend.


• Source of Law
• Jurisdiction
• Where the act occurred
• Nature of the act
o Subject Matter- easier in criminal cases
o Person-
o Pleading
o Inherent Authority

• Misdemeanor- Max 90 days
o May be heard in court of limited jurisdiction
• Court with limited scope of authority
• Speeds up process and reduces case load of other courts
• CrRLJ- Separate set of court rules for these courts

• Felony- Min one year

• Only 3-4% of criminal cases go to trial

• Washington is Determinate Sentencing state
o Predefined sentences based on a number of factors
o RCW 94a
o Non-Exclusive Statutory Factors (others may be included)

• Appeal of Verdict
o From question of law

Roles:
• Investigation- Police
o Find Facts
• Case Building- Prosecutor
o Work with police
• Pressing Case in Court- Different Prosecutor
o Moves file forward
• Challenging Case- Defense Attorney
• Arbiter of Law- Judge

Franks v. Delaware
• Requires honesty for purposes of obtaining a warrant

IRAC
-Issue
-Relevant Law
-Application to Facts
-Conclusion

With each motion consider:
• (What I want- driving force for all arguments, etc. Tell Judge what you want)
• Law
• Factual Basis- Evidence- EX Declaration (under penalty of perjury)
• Analysis

For Next Week
-Bring WA Rules
-Read Arnica case
-Print your paragraph on release for Arnica

3.15.11

Complex Litigation begins Tuesday April 5th, here in T-439, 6:00-9:00pm.
Bruce will be out of the country from 3/17-4/1.
Passing- for this class 70%

Appeals continued

Appeal bonds
Bond = Security
If TRO or preliminary injunction is issued improperly, the bond is there to make up for damage.
• Appeal Bond- At appellate level the LOSER pays the costs of the appeal. (As opposed to trial court level)
• Supersedeas Bond- Protects the party who has a judgment, from a party who appeals a judgment for no other reason than to postpone paying the judgment. An appeal may reverse the original judgment, but it is not an extension of the original trial. If you won at trial, even if an appeal has been filed, you have a right to collect now. Bond covers judgment and interest. If you cannot pay the bond, you may not appeal.

• Appellate Briefs- Fairly boilerplate, not much research required, most done at trial level.
• Amicus Briefs- "Friend of the court" brief written by party who wants to sway court opinion.
➢ EX Roe v. Wade, Planned Parenthood wrote Amicus brief
➢ FRAP 29, RAP 10.6
• Strict Rules on Format- Color-Coded Covers, Table of Contents, etc.
• FRAP- 25 copies/ RAP 10.5 - court makes copies and bills you
• Either side can appeal, Appellant is the one who appeals.
• Exhibits- Can be recovered from court, if left, they will be disposed of.
• Petition for Re-hearing FRAP 30- Ask for reconsideration of ruling, as in Motion for Re-consideration.
• Petition for Cert- Must get 4/9 Justices to agree to hear case.

• Turning your judgment into cash-
➢ CR 62 -You have 10 days before you can start executing on a judgment.
• Assessing finances of debtor- you should have done this in the beginning- The Triangle= Damages, Liability, and POCKET
• Procedures to reveal assets
• Post trial interrogatories
• Post judgment deposition "Debtor Exam" CR 69
• Personal property is seized and sold before real property
• Why?
• 1) Simpler- Easy to seize personal property
• 2) Risk of Abuse- Could seize your house and throw you out on $500 judgment, when you have significant savings, bonds, etc.
➢ Garnishment
• "The ability of a creditor to seize ANY property of the judgment debtor held by a third person." Third party is answerable to court.
• EX Kate owes you money, Kate loaned her boat to Jenny, you garnish the boat from Jenny.
• EX Wage garnishment- you garnish the employer to take the debtor's wages.
• Max 25% of Gross (before taxes)

3.10.11

FINAL MOVED TO WEDNESDAY 3.16

Handout #20- How not to write a notice of appeal
"No man is completely useless, he can always serve as a horrible example."

Review for Final

Start- p.219
• Discovery- cover lightly
• Discovery methods- know type and advantage/dis of each
• EX give two advantages and two disadvantages of interrogatories
• Privileges- Medical, Attorney Client, Work Product-the thoughts, impressions, and strategies of the attorney
• When privilege can be invaded- Substantial need- EX destructive testing,
• Clawback agreements
• Mutual disclosure rule 26- not in WA, and don't rely on it if you do. Why? They're not going to give you everything that's helpful to you. They will wait until last minute. You may not have time to depose. Not as helpful as it looks.
• Rule 37- motion to compel. Required meet and confer- Lawyers have to get together to see if they can resolve the dispute informally. Declaration regarding meet and confer must accompany motion.
• Depositions- adv/dis Read CR 30
EX Three roles in deposition- taking, defending, attending. Give example- Multi-party case where you are not the one who set the deposition or defending but merely sitting in.
• Copies of notice or subpoena must be sent to every party who has appeared before the court.
• Essays- Subpoenas and service of process, different, life liberty and property are not at stake to same degree as a Summons and Complaint. "Abode" not "usual abode"
• Subpoena duces tecum- SDT
• Depositions- client should NEVER- get mad, lie, volunteer info
• 3 important things to do when meeting a client for the first time.
• CR 31- 15/10/10
• Interrogatories- 3 C's Clear Cogent Concise
• Rogs- Only 30 days to answer, send to client the day you receive them.
➢ Always allow client to answer first.
• If you always tell the truth you have nothing to remember.
• Client statement might be ok, and will be more comfortable with it.
• Interrogatories Objections- Know all 6 p.286
➢ Rarest- Irrelevant "reasonably calculated to lead to...."
• CR 35 litigation only, IME- insurance
• 3 things you should caution your client against during at CR 35
• EX what is a better way to proceed then a motion to compel for a party that will not comply to a CR 35? Motion to dismiss
• CR 35 anytime a parties' physical or mental condition is at issue. P or D
• CR 35 in WA both parties have an absolute right to a copy of the CR 35 report
• CR 34 broader than documents- inspection premises, things
• 4 ways to get documents 30b(5) deposition, 45 STD, 33c rogs in lieu of answer (be careful, if you ID privileged documents you have waived privilege), CR 34
• All privileges can be invaded, and all can be waived (Grand Jury exception, cannot be waived)
• EX Should you review the documents you set the deposition? Depends on situation.
• Problems with requesting too many documents- overbroad requests
➢ Expensive & time consuming
• ESI- 2-3 questions, multiple choice
• Request to Admit- cannot be combined with any other discovery tools
• Why? RFA are read into record at trial
• 3 uses- facts, genuine-ness of docs, apply law to facts and EX of each
• 3 reasons for involving the client in early document production
➢ Faster- client knows where information is
➢ Chance to bond with client- TEAM mentality
➢ Get to know info- know what is out there that could hurt you and what's being edited

p 368+ more heavily covered
• Arbitration and Mediation
• Binding vs. Nonbinding-
➢ $ limits
➢ Selecting an arbitrator
• Demand packages
• Settlement agreements
• Releases- difference between general and partial and EX
• Dismissal- CR 41
➢ 4 ways a case can be dismissed p 382
• CR 12
• Court assumes dismissal is without prejudice. True
• Trial
➢ Exhibits- marking for ID/Evidence
➢ Judges have two times when documents can be moved from ID into evidence
• As it's being marked for ID
• All at the end
➢ Voir Dire- peremptory challenges, challenges for cause and EX of each
• 3 purposes, legitimate and not
• Testing for bias or prejudice
• To establish rapport
• To condition jury to your side
• 3 times you get to talk to jury
➢ Opening statement
➢ Closing argument
➢ Voir dire
• CR 45 Subpoena
➢ How it's used, why subpoena EVERYONE
• CR 45(c) no suitable age and discretion requirement
• Why don't you have to subpoena a party to trial?
➢ Notice to appear is sufficient CR 43(f)(1)
• Preparing Witnesses
• 3 things to bring to every trial
➢ Post its for seating chart
➢ Trial notebook
➢ A pen - anything intelligent is fine
• Purpose of opening statement
• Evidence rule 904
• Cross Examination flow of case
• Leading questions- 4 exceptions
• Jury instructions and misconduct
• Case in Chief
• p 432 Polling the Jury
➢ After Jury comes back, Judge can ask each Juror to identify how they voted
➢ Attorneys may discuss with Jurors why they voted the way they did
• May be searching for Jury misconduct issues
• Get feedback on performance
• Ensure accuracy

3.9.11

Tomorrow Night- Review for Final- Bring Questions

Tonight Guest Speaker- Greg Sheldon
E-Discovery Certification Instructor- 9months beginning in Fall

Federal E-Discovery
• Formal information gathering process
• Not the only way to gather useful info

Records Management
• Identify, control and retain records to protect business interests
• Reduce burden, cost, and risk of maintaining records
• Destroy documents that have no legitimate business interest
• There is nothing wrong with a policy of destroying documents after there is no good business reason to keep it.

Legal Hold
• Obtain confirmation of receipt/compliance
• Monitor and quality assure collection and preservation of relevant information, periodic reminders

U.S. v. Philip Morris USA, Inc.
• $2.5 million in fines for failure of 11 employees to follow litigation hold on email
• Employees in question not permitted to testify

Bright v. United Corp.
• Defendant had won case on summary judgment at trial
• defendant's employee preserved digital video footage of the incident, but deliberately chose not to preserve the footage immediately before and after incident.
• Appellate court ruled plaintiff was entitled to "adverse inference" instruction (assume damaging to defendant) and overturned the trial court

Civil Rules
• 16, 26-37, 45
➢ Pretrial conferences
➢ Duty to disclose
➢ Depositions- oral or written
➢ Interrogatories
➢ Production of documents
➢ Inspections
➢ Physical or Mental Examinations
➢ Request for admission

Overview of Amendments
• Effective Dec. 1, 2006
• "Lay down discovery"- as soon as you are notified of suit, you automatically turn over relevant documents.
• ESI included in mandatory initial disclosure
• Counsel required to discuss ESI at initial pre-trial conference
• Encourage early cooperation of counsel
• Empower courts to incorporate agreements into CMOs (Case Management Order)
• Limited protection from production for ESI that is not reasonably accessible
• Address inadvertent production
• Protection from sanctions for deletion/loss in regular course of business
• Safe-harbor from sanctions

New Terminology
• Electronically Stored Information ESI
• Not defined in the new rules
• Meant to be "flexible enough to encompass future changes and developments"
• Update boilerplate document requests and interrogatories

Rule 1. Scope and Purpose
• These rules govern the procedure in all civil actions in the US District Courts.
• "They should be construed and administered to secure the jus, speedy, and inexpensive determination of every action and proceeding."

Early Attention to e-discovery
• Rules 16, 26(a), and 26(f)
• Mandates pre-trial conference in Federal Court
• Scheduling order provides timeline
• Rule 29 allows modification to discovery deadlines
• Rule 26(a)- requires parties to disclose "a copy of or a description ... of ESI"
➢ Required disclosure
• Names and contract info of witnesses
• Rule 26(f)- preservation of evidence, form of production
➢ Conference- know what your client has, and how it's being stored, etc.

Coleman v. Morgan Stanley
• $1.5 billion verdict
➢ Suit over Sunbeam meltdown
➢ Partial default judgment
➢ $15 million fine to SEC for violating e-mail retention laws
➢ Mistakes happen, but if not revealed can be extremely damaging

RTP CR 34
• Testing and Sampling
➢ "test or sample any designated documents or ESI"
• Not effective
➢ Disruptive
➢ Encroaches on protections
➢ Not meant to create a routine right of direct access to opposing parties ESI

Form of Production
• Producing party can object to format
• "in a form in which it is ordinarily maintained or in a form that is reasonably usable"
• Avoid producing in "native" format
➢ Subject to manipulation
➢ Cannot be redacted or bates stamped
➢ Need same software to view

Two-Tiered Production
• 26(b)(2)(B) allows a party to withhold information it identifies as "not reasonably accessible because of undue burden or cost"

Aubuchon v. BeneFirst
• Medical bills were "not reasonably accessible"
• BeneFirst must produce the requested information and bear the cost of production
• No reward for sloppy filing

Capitol Records v. MP3Tunes
• Unable to conduct centralized email searches of groups of users without downloading them to a separate file and relying on the service of an outside vendor

Cost Shifting
• Cost may be shifted to requesting party if information is on source that is not reasonably accessible
• Requesting party: share or bear costs
• Responding party: costs related to review

Privilege and Work Product Issues
• 26(b)(5)(B) added to formalize procedure regarding inadvertent production
➢ If disclosed, must take reasonable steps to retrieve
➢ Receiving party "must promptly return, sequester or destroy"
• ER 502
➢ Inadvertent production not a waiver

3.8.11

Handout #19 Sample Jury Instructions

Discovery Project returned Thursday

Remaining Classes
3.8- Trial
3.9- Electronic Discovery
3.10- Review
3.15- Appellate
One free class- move final to 3.16?

Trial Continued

Asking questions you don't know the answer to at trial is walking a minefield.
Preparation for depositions will help reduce new information from surfacing at trial.
Knowing when to quit- more is not necessarily better.
Subtle is best, don't alienate the jury.

Direct- unlimited
Cross- unlimited
Re-direct & Re-cross- limited by the questions that preceded
(may request question outside scope)

Most difficult part of defense is sitting through plaintiff's case.

Rebuttal Evidence- Evidence, witnesses, or testimony solely for the purpose of rebutting

Closing argument- all about preparation. Don't re-hash the evidence. Tie it all together, but in a new way. Think about the closing every day after trial- quotes, exhibits, "gems", and assemble closing around them.

WPI- Washington Pattern Instructions
Jury Instructions- Basic
Custom jury instructions frequently needed

Top 10 Jury Mistakes (Appeal-able)
1. Juror who conceals facts of prejudices or lies in voir dire (particularly facts that could lead to objection for cause)
2. Consulting any unauthorized evidence; jury must make decision solely on evidence submitted in trial.
3. Conducting experiments- facts are different, cannot replicate with certainty.
4. Private studying of the evidence. (ie. taking evidence home, etc.)
5. Private viewing of the scene without court approval.
6. Outside reviews or consultations.
7. Arguing facts or experience not in evidence.
8. Private consultation with attorneys or parties in the case. (EX "good morning", no speaking)
9. Chance and quotient verdicts.
Chance verdict- Based on an event that may or may not happen, not discussion. (EX flipping a coin, etc.)
Quotient verdict- Everyone votes and value is averaged. Must come to agreement about number, otherwise 12 separate verdicts.
10. Early judging of the evidence. (announcing conclusion before discussion has commenced)

Allowed:
- You are allowed to use your previous experience and knowledge.
- Additional review of the deposition, testimony, or trial record.
- Asking court questions
- Taking notes- Judges are split on allowing this, some do and some don't. Juror notes are destroyed after trial.

Jury Deliberations
Only Admitted Evidence
-Demonstrative exhibits do not go with jury
-Pleadings do not go with jury

Jury #s- top to bottom, left to right. Starting in upper left corner
1 2 3 4 5 6
7 8 9 10 11 12

Defense must convince 10/12
Plaintiff must convince 3/12

Mistrial-
Curative instructions- Judge instructs jury to disregard
Motion for reconsideration CR 59- gives Judge the opportunity to correct prejudicial errors of law.

The Paralegal's Part at Trial
- Making sure that the people you need are there. Subpoenas, etc.
- Keeping track of exhibits
- Be careful about mannerisms. Be professional, calm, confident.
- Taking notes during trial- Always breakdown by day and time
-- Key quotes for closing (write down word for word)
-- Every time Judge rules it is a potential appeal

Appeals
- Mostly specialty work
- Rules of Appellate Procedure- RAP
- Appellant and Appellee
- Appeals are expensive, time consuming and almost always unsuccessful. Chance of prevailing at appeal is less than 5 to 1.
- Appeals used for negotiation

Cross Appeal
Plaintiff wins $100k, wanted $200k
Defendant appeals, how long do we have to cross appeal? State RAP 5.2(f)(1)
Federal FRAP 4(a)(3)
Appellant/Appellee and vice versa

3.2.11

Handouts
#17- "21st Century Paralegal"
#18- Misc Trial Forms

Tomorrow Night
Bring at least 3 questions
Resume review and pizza at 5:30pm

Subpoenas Continued
Send subpoena AND letter of agreement
Subpoena everyone for day one.
If they will agree to appear in court on one hours notice, they may in lieu of a repeat subpoena.

How to prepare a witness
• Do not forget how scared most witnesses are likely to be
• Most common fears #1. Public speaking 2. Snakes 3. Death
• How to be persuasive in your speech
• 7% Language, word choice
• 38% Voice, inflection
• 55% Non-verbal cues, body language*
• Mock testimony- can lead to testimony appearing rehearsed

• How many copies of the exhibits do you need?
➢ SEVEN
• 1. Opposing counsel
• 2. Witness
• 3. Clerk
• 4. Judge
• 5. Trial notebook
• 6. + two extras
• 7.
• Evidentiary exhibits- those that will be entered into evidence
• Demonstrative exhibits- to help witness clarify their testimony (maps, models, etc.) NOT evidence
• Trial Briefs- ALWAYS file a trial brief
➢ Extra chance to condition judge to your theories and arguments
➢ Tell judge applicable law and relevant cases, quotes are best

• Always a good idea to visit court (you and your client too) to get familiar with the setting
• Plan ahead, know what you need to bring (extension cords, laser pointers, etc.)

• Contacting court personnel- don't overdo it
➢ Always ask about leaving some materials in court room (NEVER leave notebook)
• If other side timely requests jury and then decides against it, you can still request even if deadline has passed.
➢ Consider the nature of your case when deciding whether to request a jury trial (more interesting, juicy cases, more dull patent case, how well your client presents, etc.)

• Shadow jury- people who come into court and watch proceeding, then give feedback
➢ Paralegal (and court clerks, etc.) - can also provide feedback

• Jury Selection- start with 50
➢ Refer to them by number
➢ Used to be unlimited number of questions, now usually about an hour in civil cases
➢ Sensitive questions should be asked by judge
• Challenges
• Do you feel, in light of your experience, that you can remain fair and impartial?
• Unlimited elimination for cause
• 3 Preemptory challenges
• Choosing a jury
➢ Make a chart according to seating
• Make notes for each juror on a post it (easier to edit if someone is bounced)

Opening Statement
• Critical to case- create a roadmap of case for jury
• Statement- NOT argument, "what we intend to prove"
• Better to under-promise and over-deliver
• 90% of jurors make up their mind in the first 15 minutes
• Keep it under an hour 35-40min is best
• Brief, Interesting, Understandable (don't talk down to jury)
• Use "we", "our", and "us" (don't distance yourself from your client)
• Physical contact with your client (shoulder pat, arm touch, etc.) is a non-verbal cue that attorney believes in client
• Approaching jury box is bad etiquette
• Humor? Can backfire, use sparingly.
• Plaintiff before Defendant- Important for defense to point out that you may not get to present your case until after the Plaintiff

Presenting Evidence
• Most interesting first, then boring, boring, boring, then end with another good witness (or client).
• Requests for admission- Judge will read admissions to Jury "to accept them as true without further evidence"
• Four Exceptions to asking leading questions
➢ Children, experts, foundation, hostile witness.

3.1.11

Alternative Dispute Resolution
Two most commonly used forms- Arb. & Med.

Arbitration- Arbitrator listens to the evidence and witnesses, and renders award (usually NO appeal) Court cannot force you into binding arbitration, 7th Amend. right to jury trial.

- Binding (Usually by contract: stockbroker, hospital, auto insurance, lease, installment purchase plans, etc.)
- Nonbinding (RCW 7.06.020) If either side objects to finding, can go to trial.

Mediation
1) No "award"- recommendation only
2) Informal discussions ("shuttle diplomacy")
3) Never binding

98% of ADR is non-binding arbitration and mediation

Mandatory Arbitration Rules
MAR 4.2, 5.1, 5.2, 5.3, 6.2, 6.3, 7.1, 7.2, 7.3

Trial De Novo
Request for new trial after arbitration.
Risk MAR 7.3, court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo.

Local Rules- Vary
Be careful, most have short discovery period with regards to arbitration.

KCMAR 7.1- to reduce arbitration for the sake of wasting time.

Private ADR
WAMS- Washington Arbitration and Mediation Service
JAMS- Judicial Arbitration and Mediation Service
JDR- Judicial Dispute Resolution

Anyone can mediate. Most mediators are retired judges or lawyers. Must be agreed upon by both sides. Sometimes called "Neutrals".

Mediation Statement- NEXT ASSIGNMENT
Write a persuasive statement. You may be creative in your advocacy. 5-6 pages
Discuss incident, injuries, legal theories, etc.

Mini-Trials- Too expensive to be practical


TRIAL Work
Pre-Trial- Its all about preparation
• "Although the trial date is three months away..." If you haven't started your trial prep by then, you should be FREAKING OUT!
• Preparation for Trial- should begin with initial client meeting
• You cannot prepare for every eventuality
• But Preparation, Organization, and Dedication can cover most of them
• Clients and witnesses should be notified of trial date the day you receive the date

• File Organization- Keep files organized as you go. "Drop filing" = trouble
• Motions in limine- now is the time to think about evidence we want to keep out
➢ ER 403, 404, 407, 408, 409, 411
➢ Done in advance of trial. If objection is raised to question about previous felony, etc., "the cat's out of the bag." Even instructions by judge to disregard may not undo damage

Trial Notebook- "Blueprint" for case
➢ Fiercely individual to lawyer
➢ 3 Key Elements
• 1. Opening statement
• 2. Outlines of direct/cross- Parties/Witnesses/Experts
• And exhibits we will introduce through them
• 3. Closing argument

➢ Include only documents that will be used at trial
• Document Index- Vitally important that you be able to find any document in 8 seconds
• Chronology- Present events in the way they are most impactful, not necessarily in chronological order. Bruce- Organizes in order of how he intends to present, usually in order of story to be told, people who help tell the story, and the documents that accompany them.
• Legal research- any research should be used in advance, and used to create documents (brief, motion, jury instruction). Cases used to draft documents do not need to be in trial notebook.

• Exhibits-
➢ Marked for Identification- "as Plaintiff's exhibit 1" for ease of reference (marked for evidence does not enter them into evidence)
➢ Keeping track of exhibits/evidence
• 1. Exhibit #
• 2. Exhibit description
• 3. Plaintiff/Defendant (who introduced)
• 4. Objection (nature of, hearsay, foundation, best evidence, etc.)
• 5. Trial Date (in which it was introduced)
• 6. Admitted into Evidence?
➢ Have a blank sheet set up in notebook for exhibit tracking

• Jury Selection- know what you're looking for
➢ Voir Dire
• 3 Purposes
• 1. Test for bias or prejudice which will prevent objectivity.
• 2. Establish rapport- chance for attorney to establish credibility, etc. Improper use of voir dire.
• 3. Condition jury to our case- chance to tell them a little bit about the case, your side of course. Improper use.

• CR 45 Subpoena
➢ Subpoena EVERYONE (friendly or not)
➢ If you've subpoenaed someone who doesn't show up, you can get a continuance, etc., otherwise you are in serious trouble.
➢ Service of subpoenas are less strict because the person being subpoenaed is not at risk of losing life, liberty, or property. (No due process issue)
➢ You do not need to subpoena on a party, CR 43(f) notice required.