Fundamental Question
-Is the Statute Constitutional?
-By what measure do we evaluate? By language of the statute itself.
-Facially overbroad- If statute itself sweeps within it many behaviors not intended to be targeted.
-Mixed question of law and fact.
-Laws must be content neutral to be constitutional. (Cannot apply to one situation and not another.)
Motion to Suppress
Common Issues
-Case Number- was provided in the Complaint
-Margins/Typeface/Font size- check local rules
-Details-Spell names correctly, spelling, correct court, etc.
-IRAC
-I- Header
-R-Concept, principle from case law (Probable Cause- state in affirmative (Police officer has PC when... In this case...)) (Terry Stop-Officer has authority to stop when... In this case...)
-A-Integrate Each Principle as useful, before moving on
-C-
Until you've been writing for a few years, you will need to rewrite.
Step back and look at your papers without attachment-does it say what you want it to say, and is each sentence necessary?
-LSF- Legally significant facts
For Pre-sentence Report
-Accuracy to facts
-Form and spelling
Trials
Trial Notebooks
-Charge Documents
-Voir Dire
-Pre Trial Motions Resolved
-Limine (limitational) & Motions Pending
-Opening statement
-Complete set of police reports
-Witnesses- with individual police reports or statements
-1/2 Time- Once state has rested, if not all elements have been established you may ask for dismissal.
-Closing
-Exhibits- Impeachment- undermining facts or logic presented by witnesses
-Jury Instructions
Posner & Dodd- "Chaptering"
Element Tracking
-To keep track of which elements have been covered at trial
Notebook should be put together 2week to a month before trial
Evidence Rules
Evidentiary Foundation- Edward Imwinkleried (goldmine of info-creates script)
Must be:
-Relevant
-Probative
-And fall under applicable rule
Hearsay
-Out of court
-Assertion (non-verbal communication is included)
-Offered to prove the truth of the assertion (if offered for another purpose, not hearsay)
Key is that there can be no cross examination
Wednesday, April 27, 2011
4.26.11 Complex Litigation
NEXT WEEK- Midterm will be handed out
Advanced Tort Theory
Direct Liability- 1.Solo EX I run over you in my car.
- 2.Concurrent (two or more acting in concert) EX Two people racing their cars kill third.
EX Dad leaves gun on the kitchen table, Mom leaves bullets out, Junior loads gun and kills someone.
- 3.Derivative (doing something negligent that enables someone else to do something negligent) EX Giving a drunk person car keys, they run someone else over.
-In all three- I was AFFIRMATIVELY negligent
Vicarious- You didn't do anything wrong, but we are holding you responsible because of your relationship to the person who did. (Social policy)
Direct/Vicarious both =liable (Negligence is negligence)
Respondeat Superior- "Let the higher-up answer"
-Why? The employer is in a better financial position to make the losses of the plaintiff whole.
-Must be within the COURSE and SCOPE of duties.
-FROLIC and DETOUR (on own recognizance)
-Can even apply to employees who commit intentional torts
Joint and Several Liability
- Should be Joint OR Several
- SEVERAL- Each Defendant being held responsible only for their share of the harm.
- JOINT- 100% of the judgment can be obtained from ANY Defendant.
-Problem- Pocket Targeting EX car accident, prove City 1% at fault, can collect all from them. Municipalities couldn't get insurance and went bankrupt.
-As a result, the law of Joint liability has been greatly restricted.
-Pure Joint Liability- DC, Alabama, Maine, Maryland, Massachusetts, Rhode Is.
-Abolished Joint Liability- Georgia, Wyoming, Florida(?)
-WA- Tort Reform Act of 1986
We ONLY have Joint liability if:
1. Agency (Principle/Agent)
2. Employment (Respondeat Superior, Employer/Employee)
3. Defendants Acting in Concert EX Drag racing, must act TOGETHER (NOT separate acts)
4. Multiple Defendants (& Fault Free Plaintiff (If P is even 1% at fault, fail)) against whom a judgment is taken.
EXAMPLE
A- 20% Severally 200k Jointly 900k (10% is not part of judgment)
B- 30% Severally 300k
C- 40% Severally 400k
D- 10% (but settles out)
$1,000,000.
If Plaintiff is even 1% liable, then joint liability does not exist.
EXAMPLE
A- 10% Severally 100k Jointly 250k
B- 10%
C- 5%
D- 75% (settles out)
$1,000,000.
Juries consistently find the settled party to be the most liability, usually because the remaining parties point at that party.
EXAMPLE
A 10%
B 20%
C 30%
D 40%
If A pays full $1,000,000. can A recover from co-defendant? Yes, contribution.
EXAMPLE
Plaintiff
-A - $2,000 settlement and gets released
-B - $20,000 judgment, 10% liable
Can B get 90% of judgment from A. Traditionally, yes. Problem, why would you settle, if co-defendant can come after you anyway?
-A- Settled are released in full.
-B- Reduced by 50% as a compromise.
CA- Must hold good faith hearing to determine whether the settlement is a "fair approximation" of liability.
-Remaining party gets credit/offset of amount settled.
-WA- Never jointly liable for the settling party's percentage of liability.
Contribution- Defendant recovering from co-Defendant anything they paid that was above and beyond their liability. Liability does not change, only financial responsibility.
Indemnification- Shifting liability. Allows you to recover 100% back even if you were 100% liable.
-General/Sub-Contractors Contract clause says Sub-C agree to indemnify General-C. Agree to pay any judgment, regardless of liability.
-Principle/Agent Legally required to indemnify agent.
(Insurance Co. Duties- to Defend & Indemnify)
Advanced Tort Theory
Direct Liability- 1.Solo EX I run over you in my car.
- 2.Concurrent (two or more acting in concert) EX Two people racing their cars kill third.
EX Dad leaves gun on the kitchen table, Mom leaves bullets out, Junior loads gun and kills someone.
- 3.Derivative (doing something negligent that enables someone else to do something negligent) EX Giving a drunk person car keys, they run someone else over.
-In all three- I was AFFIRMATIVELY negligent
Vicarious- You didn't do anything wrong, but we are holding you responsible because of your relationship to the person who did. (Social policy)
Direct/Vicarious both =liable (Negligence is negligence)
Respondeat Superior- "Let the higher-up answer"
-Why? The employer is in a better financial position to make the losses of the plaintiff whole.
-Must be within the COURSE and SCOPE of duties.
-FROLIC and DETOUR (on own recognizance)
-Can even apply to employees who commit intentional torts
Joint and Several Liability
- Should be Joint OR Several
- SEVERAL- Each Defendant being held responsible only for their share of the harm.
- JOINT- 100% of the judgment can be obtained from ANY Defendant.
-Problem- Pocket Targeting EX car accident, prove City 1% at fault, can collect all from them. Municipalities couldn't get insurance and went bankrupt.
-As a result, the law of Joint liability has been greatly restricted.
-Pure Joint Liability- DC, Alabama, Maine, Maryland, Massachusetts, Rhode Is.
-Abolished Joint Liability- Georgia, Wyoming, Florida(?)
-WA- Tort Reform Act of 1986
We ONLY have Joint liability if:
1. Agency (Principle/Agent)
2. Employment (Respondeat Superior, Employer/Employee)
3. Defendants Acting in Concert EX Drag racing, must act TOGETHER (NOT separate acts)
4. Multiple Defendants (& Fault Free Plaintiff (If P is even 1% at fault, fail)) against whom a judgment is taken.
EXAMPLE
A- 20% Severally 200k Jointly 900k (10% is not part of judgment)
B- 30% Severally 300k
C- 40% Severally 400k
D- 10% (but settles out)
$1,000,000.
If Plaintiff is even 1% liable, then joint liability does not exist.
EXAMPLE
A- 10% Severally 100k Jointly 250k
B- 10%
C- 5%
D- 75% (settles out)
$1,000,000.
Juries consistently find the settled party to be the most liability, usually because the remaining parties point at that party.
EXAMPLE
A 10%
B 20%
C 30%
D 40%
If A pays full $1,000,000. can A recover from co-defendant? Yes, contribution.
EXAMPLE
Plaintiff
-A - $2,000 settlement and gets released
-B - $20,000 judgment, 10% liable
Can B get 90% of judgment from A. Traditionally, yes. Problem, why would you settle, if co-defendant can come after you anyway?
-A- Settled are released in full.
-B- Reduced by 50% as a compromise.
CA- Must hold good faith hearing to determine whether the settlement is a "fair approximation" of liability.
-Remaining party gets credit/offset of amount settled.
-WA- Never jointly liable for the settling party's percentage of liability.
Contribution- Defendant recovering from co-Defendant anything they paid that was above and beyond their liability. Liability does not change, only financial responsibility.
Indemnification- Shifting liability. Allows you to recover 100% back even if you were 100% liable.
-General/Sub-Contractors Contract clause says Sub-C agree to indemnify General-C. Agree to pay any judgment, regardless of liability.
-Principle/Agent Legally required to indemnify agent.
(Insurance Co. Duties- to Defend & Indemnify)
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