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
Wednesday, January 19, 2011
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.
Subscribe to:
Posts (Atom)