Professional Documents
Culture Documents
Civil Procedure
Civil Procedure
AND LITIGATION
Jack S. Emery
Linda L. Edwards
J. Stanely Edwards
CIVIL PROCEDURE
AND LITIGATION
T h e We s t L e g a l S t u d i e s S e r i e s
Family Law
Federal Taxation
Intellectual Property
Introduction to Law
Introduction to Paralegalism
Law Office Management
Law Office Procedures
Legal Research, Writing, and Analysis
Legal Terminology
Paralegal Employment
Real Estate Law
Reference Materials
Torts and Personal Injury Law
Will, Trusts, and Estate Administration
CIVIL PROCEDURE
AND LITIGATION
Jack S. Emery
Linda L. Edwards
J. Stanley Edwards
PREFACE
This book is directed to paralegal students striving to understand the civil litigation process and the rules that guide that process. It is broad enough in scope
and detailed enough in coverage to be used as either an introductory civil procedures text or as a more advanced civil litigation text. Enough material is contained in this book to fuel a two-semester course, but it is organized in such a
manner that it could be used in a one-semester course. Because workshops can
be used or omitted at the discretion of the instructor and the chapters themselves can be used as either a review or as an overview of the litigation process,
the text can be adapted to the needs of the class and the instructor.
vi
PREFACE
UNIQUE FEATURES
In addition to its distinctive overall design, this text has many other unique
features designed to help students assimilate and apply information:
vii
PREFACE
viii
PREFACE
ANCILLARY MATERIALS
The Instructors Manual includes these elements:
Suggested lecture outlines, which indicate specific points in the chapters to insert the appropriate workshops
Classroom activities
Answers to the review questions, Procedural Ponderables, and Learning
by Doing exercises in the workshops
Transparency masters that correlate with the chapters and workshops
are also included
Test bank
PREFACE
Westlaw. Wests on-line computerized legal research system offers students hands-on experience with a system commonly used in law offices. Qualified adopters can receive 10 free hours of Westlaw. A modem
is required
Court TV videos.
Flynn v. Goldman Sachs--Fired on Wall Street: A Case of Sex Discrimination?
ISBN 0-7668-1096-8
Dodd v. Dodd--Religion and Child Custody in Conflict
ISBN 0-7668-1094-1
Wests paralegal video library. Adopters of 199 paralegal texts may select one video. Adopters of 100199 paralegal texts may select two
videos. Adopters of 200299 texts may select three videos
The Drama of the Law II paralegal issues video. Five separate dramatizations intended to stimulate classroom discussion about issues and
problems faced by paralegals on the job. Dramatizations cover intake interviews, client confidentiality, UPL, etc
The Making of a Case video. A case is followed from the court system
to the law library shelf. Provides introduction to significant aspects of
our legal system
Arguments to the U.S. Supreme Court video. Accomplished lawyers, professors and judges play various roles as the case of the F.T.C. v. The
American Tobacco Company is argued before a mock U.S. Supreme Court
ACKNOWLEDGMENTS
We gratefully acknowledge the feedback we have received from the hundreds
of students we have had the privilege of working with over the years. This text
reflects our understanding of the learning process as they have demonstrated
it to us.
Writing this text has at times been an intimidating task. Having launched
into uncharted waters from an organizational and design standpoint, we have
sometimes found reason to defer this project to other tasks with which we felt
more comfortable. We owe thanks to Rhonda Dearborn, developmental editor,
for her tenacious support. Were it not for her persistent nipping at our heels
this book might never have become a reality. We are also grateful to Joan Gill,
editor, for her enthusiastic support of this somewhat unprecedented approach to teaching civil procedures and litigation.
Finally, we very much relied on the feedback and insights from our unsung
assistants, the reviewers. Their candor and eagerness to offer suggestions
helped make this book as conducive as possible to clear and efficient learning.
We acknowledge them now individually:
C. Suzanne Bailey, Western Illinois University, IL
Jeptha Clemens, Northwest Mississippi Community College, MS
Frances Coles, CSU
Richard J. Dimanin, Madonna University, MI
Paula D. Emmons, Watterson College, CA
Mary Kubicheck, Casper College, WY
Marion MacIntyre, Harrisburg Area Community College, PA
Kathryn L. Myers, Saint Mary-of-the-Woods College, IN
Larry Nordick, Moorehead State University, MN
FEEDBACK
We would very much like to receive your comments, suggestions, and questions in reference to the text, especially in regards to its unique approach to
presenting the material. Please feel free to contact us.
ix
DEDICATION
I dedicate this book to my wife Neble and son Jack, from whom were stolen the hours
necessary to write it.
Jack Emery
We dedicate this book to our family members, Bill, Ester, Audrey, and Louis, without
whose support and patience we could not have completed this project.
Stan and Linda Edwards
CONTENTS
CHAPTER 1
INTRODUCTION
OBJECTIVES 1
BACKGROUND 2
WHAT IS CIVIL PROCEDURE AND WHY SHOULD
YOU STUDY IT? 3
The Importance of Procedure 3
TERMINOLOGY 4
THE MAIN PHASES OF A LAWSUIT 9
Pre-Suit Phase 9
Preparation Phase 9
Trial Phase 10
Post-Judgment Phase 10
ALTERNATIVE PATHS 11
ROLE OF THE PARALEGAL 11
ETHICAL ETIQUETTE 11
PRACTICE POINTERS 12
TECHNO TIP 13
SUMMARY 13
KEY TERMS 14
REVIEW QUESTIONS 14
PRACTICE EXAM 15
LITIGATION LINGO 17
LITIGATION LOGISTICS 18
PROCEDURAL PONDERABLES 18
CHAPTER 3
CHAPTER 2
Administrative Detail 31
Specialty Cases 33
ROLE OF THE PARALEGAL 34
ETHICAL ETIQUETTE 34
PRACTICE POINTERS 35
TECHNO TIP 36
SUMMARY 36
KEY TERMS 37
REVIEW QUESTIONS 37
PRACTICE EXAM 38
LITIGATION LINGO 40
LITIGATION LOGISTICS 41
PROCEDURAL PONDERABLES 41
19
OBJECTIVES 19
INTRODUCTION 20
WHAT ARE COURTS AND WHERE DO THEY COME
FROM? 20
Federal Courts 22
Procedure in Appellate Courts 23
State Courts 25
ADMINISTRATION 25
Special Courts 28
City and Small Claims Court 29
WHICH COURT DO I SUE IN? 29
HOW DO I FIND OUT WHAT PROCEDURES APPLY? 30
General Questions of Federal Procedure 30
State Law Procedure Questions 31
OBJECTIVES 43
THE PHASES OF A LAWSUIT 45
PREFILING PHASE 46
Investigation and Fact Gathering 47
Strategic Decision Making 48
Prerequisites to Suit 49
Positioning the Case 50
Settlement Negotiations 50
Other Considerations 50
Role of the Paralegal 51
SUIT PREPARATION PHASE: PLEADINGS 52
Complaint 52
Filing and Service of Process 52
Answer 56
Filing and Service of Answer 57
Reply 59
Choice of Forum 59
Joinder of Issue 59
Role of the Paralegal 60
ETHICAL ETIQUETTE 60
PRACTICE POINTERS 61
TECHNO TIP 62
SUMMARY 62
KEY TERMS 63
WORKSHOP ALERT 63
REVIEW QUESTIONS 64
43
xii
PRACTICE EXAM 64
LITIGATION LINGO 67
LITIGATION LOGISTICS 68
PROCEDURAL PONDERABLES
CONTENTS
69
114
CHAPTER 4
71
CHAPTER 6
CHAPTER 5
91
OBJECTIVES 91
MOTION PRACTICE 92
How Motions Are Presented 92
How Motions Are Decided 94
Motions on the Merits 96
Other Tactical Motions 99
Discovery Motions 100
SCHEDULING ORDERS AND DEADLINES 103
THE ALL-PURPOSE MOTION: MOTION FOR A PRETRIAL
CONFERENCE 104
ROLE OF THE PARALEGAL 104
ETHICAL ETIQUETTE 105
PRACTICE POINTERS 105
TECHNO TIP 106
SUMMARY 106
KEY TERMS 107
WORKSHOP ALERT 108
115
OBJECTIVES 115
WHAT IS ADR? 117
HISTORY OF ADR 117
ARBITRATION 118
Forms of Arbitration 119
Selection of Arbitrators 119
Arbitration Process 120
Role of the Paralegal 121
MEDIATION 122
Forms of Mediation 122
Mediation Process 123
Role of the Paralegal 124
MED-ARB 126
Role of the Paralegal 127
SUMMARY JURY TRIAL 127
MINI-TRIAL 128
Role of the Paralegal 129
OTHER OPTIONS 129
BRIGHT AND DARK SIDE OF ADR 130
LIMITATIONS OF ADR 133
ETHICAL ETIQUETTE 134
PRACTICE POINTERS 135
TECHNO TIP 136
SUMMARY 136
KEY TERMS 138
WORKSHOP ALERT 138
REVIEW QUESTIONS 139
PRACTICE EXAM 139
LITIGATION LINGO 144
LITIGATION LOGISTICS 145
CHAPTER 7
xiii
CONTENTS
CHAPTER 8
193
OBJECTIVES 193
INTRODUCTION 194
WORKSHOPS
WORKSHOP 1
WORKSHOP 3
221
WORKSHOP 2
253
WORKSHOP 4
COURT PAPERS
INTRODUCTION: CREATING A COURT PAPER THAT
COMPLIES WITH FORMAT RULES 273
CREATING A COURT PAPER: STEP-BY-STEP
INSTRUCTIONS 273
CREATING A COURT PAPER: LEARNING
BY EXAMPLE 279
CREATING A COURT PAPER: LEARNING BY DOING
279
273
xiv
CONTENTS
EXERCISES 279
PRACTICE POINTERS 282
TECHNO TIP 283
FORMS FILE 284
KEY TERMS 284
WORKSHOP 5
285
WORKSHOP 6
305
WORKSHOP 7
323
WORKSHOP 8
337
355
WORKSHOP 9
DOCUMENT DISCOVERY
INTRODUCTION: THE OBJECTIVES OF DOCUMENT
DISCOVERY 361
DOCUMENT DISCOVERY STRATEGY
AND GOALS 361
THE DOCUMENT DISCOVERY PROCESS
IN A NUTSHELL 361
THE TOOLS OF DOCUMENT DISCOVERY 362
361
xv
CONTENTS
385
409
435
WORKSHOP 13
WORKSHOP 11
WORKSHOP 12
WORKSHOP 10
WRITTEN DISCOVERY
459
xvi
CONTENTS
WORKSHOP 16
WORKSHOP 14
491
WORKSHOP 15
DISCOVERY MOTIONS
INTRODUCTION: HOW DISCOVERY CAN BECOME
ABUSIVE 511
THE ADVERSARIAL SIDE OF DISCOVERY 511
MOTIONS TO COMPEL: STEP-BY-STEP
INSTRUCTIONS 515
Preparatory Steps 515
Drafting Steps 521
Concluding Steps 523
511
535
WORKSHOP 17
555
WORKSHOP 18
581
xvii
CONTENTS
APPENDIX A
619
WORKSHOP 19
ETHICS IN LITIGATION
605
APPENDIX B
633
CIVIL PROCEDURE
AND LITIGATION
CHAPTER
INTRODUCTION
OBJECTIVES
In this chapter you will learn:
What civil procedure is
Why procedural law is important
What the main steps in a lawsuit are
What common lawsuit terminology
means
CHAPTER 1
Introduction
A drunk driver sideswipes your new sports car, which is parked at the
time. It will cost thousands to repair. The drunk driver has no money, and his
insurance company refuses to pay.
You decide to supplement your income by using some of your savings as
a down payment on a house, which you can rent out at a profit. Your tenant
loses her job, and stops paying rent. She refuses to move out.
Your cousin is starting up a new restaurant. Since his budget is limited,
you agree to work part-time for free until the business is up and running, with
the understanding that you will be rewarded appropriately at that time. Six
months later, you have worked hundreds of hours in the restaurant, neglecting your studies, but the business is a success. Your cousin thanks you profusely and hands you a check for $1,000; he calls your suggestion that you are
entitled to a percentage of the business ridiculous.
You enroll in a karate class at your favorite health club. An instructor,
disobeying the rules, launches a flying side kick toward your face, miscalculates, and breaks your nose. You feel that the health club should pay
your medical bills. The health clubs insurance company denies coverageit claims that the instructor was a volunteer, not an employee of the
health club.
You hire a contractor to install a new roof on your house. The job is finished and you pay for it. Two weeks later you return from an out-of-town
trip to find that (1) it has rained; (2) the roof still leaks in a number of
places; and (3) the ceilings, carpets, and several pieces of antique furniture have been destroyed by water damage. When you confront the contractor about his shoddy work, his reply is, Yeah? What are you going to
do about it?
Good question. What can you do about it when someone refuses to do
what the law requires of them? What can you do when there is a genuine dispute about what the law requires? How can you force other people to carry out
their legal obligations to you, even when they may prefer not to?
These questions are the central themes of civil procedure and of this text.
BACKGROUND
In less civilized times and places, one way to resolve a dispute might have
been to use direct physical force against ones opponent. In other societies,
the king or the church might be asked to intercede. Outcomes tended to favor
the powerful or the well connected; justice, if any, was often coincidental.
In modern America, most people believe that it is best to let the government resolve disputes between citizens, using its system of courts and police.
In America, if you wish to force someone else to do something that they do not
want to do, you must first go to court and persuade a judge or jury that you
are entitled to what you are asking for. In other words, you sue them. If you
win, the court can use the police powers of the government to force your opponent to obey the courts decision.
How do you sue someone? Do you just show up at the courthouse and ask
to see a judge? What if your opponent does not wish to go to court and refuses
to cooperate? What procedures must you follow to have your case heard and
decided by the court? If your opponent refuses to accept the courts decision,
what do you do then?
CHAPTER 1
Introduction
W H AT I S C I V I L P R O C E D U R E A N D
WHY SHOULD YOU STUDY IT?
The study of civil procedure is the study of lawsuits and the rules that govern
them. Its focus is not on legal rights themselves, but rather on what you can
do about it when someone violates your rights. Civil procedure is the branch
of law that tells you how to sue someone.
Why, you may wonder, does it take an entire branch of the law to give instructions on how to sue someone? All you want is to present your case to the
court and get a final decisionsurely that is not very complicated?
In small claims cases, procedures are often quite simple: You fill out a form
stating what you are suing for, a court date is set, and the judge listens to each
side and makes a decision.
In a typical full-blown lawsuit, however, a great deal of preparation must
take place before the case can be presented for final decision. You and your
opponent may not agree on what laws apply to the case. There may be disputes about what evidence will be allowed, or about what instructions should
be given to the jury, or even whether the case should be decided by a jury.
Your opponent may be holding documents or other evidence that you need access to. To prepare for trial, you will somehow need to find out what evidence
and testimony your opponent intends to present. These are but a few examples of the mini-disputes that the court must resolve before a case can be
tried and a final decision rendered on the main dispute. Before the judge rules
on each issue, both sides will want to research the applicable law and present
arguments. Each of these pretrial events has the potential to strengthen or
weaken your case, or sometimes even to win or lose the case then and there.
CHAPTER 1
Introduction
SIDEBAR
Substance vs. Procedure
Much of the law is devoted to making rules that regulate peoples behavior
in various specific situations. Tort law, for example, lays down rules that make
it wrongful for a drunk driver to destroy your car or for a fellow student to break
your nose. Contract law requires your tenant to pay rent as agreed and may
make a roofing contractor liable for the damage caused by his poor workmanship. All of these are examples of rules of substantive law, and most people
would agree that organized society could not survive and prosper without these
and many other similar rules of conduct.
These substantive rules are, however, rather empty unless there is some way
of enforcing them. It does little good to have a law requiring roofing contractors to perform their contracts in a workman-like manner if homeowners have
no way to extract payment from contractors who fail to do the job properly. It
will be of little help to you that the law prohibits drunk driving if the law does
not also give you some way to force the drunk driver or his insurance company
to pay for your car. Rights are meaningless without remedies. Procedural law
is the law of remedies.
TERMINOLOGY
In any academic subject, it is essential to use words accurately and to have a
clear understanding of their meaning. Words encapsulate ideas; you cannot
understand the ideas if you do not know the meanings of the words. In your
career as a paralegal, your employer will expect you to be familiar with the
common vocabulary of the law office.
Moreover, words take on a special significance in the law: Laws themselves are essentially just complex definitions of words. For example, if you
sue the drunk driver who sideswiped your car, the judge will instruct the jury
on the meaning of the word negligence. Whether you win or lose will depend
on whether the members of the jury think the drunk drivers conduct fits that
definition.
This book will stress correct use of terminology, and each chapter highlights definitions of terms pertinent to the subject of that chapter, with examples illustrating their meanings. You may also wish to refer to a law dictionary
for additional guidance.
Civil procedure, as already noted, is the body of law that deals with the
rules for conducting civil lawsuits. A civil lawsuit, or a civil action, is a
process by which a person who believes that someone else has wronged her
can ask a court to order her adversary to repair the wrong. A lawsuit is
called civil to distinguish it from prosecutions under the criminal law (see
sidebar). Criminal actions must be initiated by the government, and they
CHAPTER 1
Introduction
SIDEBAR
Remedies: Criminal vs. Civil
The American legal system uses two main weapons to enforce its rules of behavior: criminal punishment and the civil lawsuit. Criminal punishment is intended to deal with offenses that damage society as a whole. Whatever you may
think of its effectiveness for that purpose, the criminal justice system is of little
use in, for example, getting a shoddy roofing contractor to pay for your ruined
furniture. Only the government can bring a criminal prosecutionyou can neither start criminal proceedings against your roofing contractor nor control the
proceedings once begun. Worse, the criminal laws focus is on punishing or rehabilitating the wrongdoer and only incidentally, if at all, on compensating the
victim. Even if you manage to persuade the government prosecutor that a crime
has been committedand breaching a contract, like most garden-variety misdeeds, is usually not a crimegetting the contractor punished will not replace
your furniture or fix your ceilings.
In the examples given at the beginning of the chapter, the civil lawsuit fits
your needs considerably better, though not perfectly. In most cases (but not all,
as we will see), you can decide on your own whether, when, and for what to
sueyou do not have to persuade a prosecutor or other government agency to
act first. Nor will your strategy and timetable be dictated by the caseload and
budgetary limitations of a prosecuting agency. You will be free to pursue your
civil remedies in whatever way you deem best or can afford to pay for. And
therein lies one of the disadvantages: Civil lawsuits, unlike criminal prosecutions, are not free of cost to the aggrieved party; in fact, they can be extraordinarily expensive for the person suing and for the person sued.
seek to punish the accused. Civil actions can be filed by anyone (filing does
not, of course, guarantee winning).
Usually, the remedy given by courts in civil actions is an award of damages, which refers to an amount of money determined by the court. In certain
special situations, the court may order someone to do some particular thing
(such as turn over title to property) or to refrain from doing something. Such
an order is called an injunction. Or the court may enter a judgment for specific performance of a contract, ordering a party to do some particular thing
that the party has contracted to do.
To litigate means to conduct or defend a lawsuit. A person who begins a
lawsuit is called a plaintiff. A person who is sued is called a defendant. There
can be more than one of each. The people who are suing or being sued are referred to as the parties to the suit. A plaintiff is a party, and so is a defendant.
The lawyers are not parties, nor is the judge. The parties to a lawsuit are also
sometimes called litigants. Do not confuse this with the word litigator; a
litigator is an attorney who specializes in handling lawsuits.
Must a plaintiff or defendant be what the law calls a natural personthat
is, a live human being? No; entitiesartificial persons or organizations, such
as corporations, partnerships, and limited liability companiescan be parties, and so can the estates of deceased persons. Political subdivisions, such
as cities and counties, and government agencies at all levels can be parties in
certain cases. The rules for deciding what kinds of entities are permitted to
sue and be sued are not the same in every case or in every court.
Parties to lawsuits are usually represented by attorneys. The requirements to be licensed as an attorney vary from state to state but typically include graduation from an accredited law school, passing of a bar examination,
Putting It
Into Practice:
Why might civil procedure
arguably be one of the
most important subjects
for a paralegal to master?
CHAPTER 1
Putting It
Into Practice:
Why is it important to
know the jurisdictional
powers of each court?
Introduction
and a character investigation. Parties can usually handle their own lawsuits if
they wish (although it may be imprudent to do so without proper training), but
only attorneys may represent other people in a lawsuit.
We will often speak of the parties taking a particular action in a casefor example, we may say that Jane Doe has filed her complaint against Ajax Roofing
Companybut this is really just a shorthand way of saying that Jane Does attorney prepared a complaint, signed it on her behalf, and had a messenger deliver it to the clerk of the court. In a lawsuit, for most purposes, when a partys
attorney does a particular thing, it is the same as if the party had done it.
Lawsuits are conducted in courts. A court is an agency of the government
that has the power to adjudicate (decide) particular kinds of disputes and render a judgment (a formal decision) that the government will enforce, through
the use of its police power, if necessary. Various branches of the government
have established courts; the federal government has courts, and so do the
states, and the counties of most states. The governments of many cities have
their own courts.
In general, each court has limitations on the kinds of cases it can decide.
If a court has the power to adjudicate a particular kind of case, we say that the
court has jurisdiction over that kind of case. For example, the federal courts
have jurisdiction over disputes that involve questions of federal law. It may
surprise you that state courts also, typically, have jurisdiction over disputes
involving questions of federal law; in this respect, the federal and state courts
are said to have concurrent jurisdiction. Thus, a plaintiff may have the opportunity to choose which court to sue in from among two or more courts that
have jurisdiction. Deciding which court to sue in can be complicated, and we
will discuss the issue in detail in a later chapter.
Venue is a concept related to jurisdiction; venue rules place further limitations on a plaintiffs choice of where to file suit and are intended to require
suits to be brought at a place that is least inconvenient for the parties and witnesses. You may have heard of defendants in criminal cases asking for a
change of venue in order, for example, to move the case to a location where it
will be easier to find jurors who have not already been exposed to the facts of
the case as told in the news media. In civil suits, however, venue transfers are
more likely to depend on such questions as whether the defendant is a resident of the county in which the plaintiff brought suit, or whether the events
that led to the dispute occurred in that county.
Each court is presided over by one or more judges. A judge is a government official, usually required to be a lawyer, who is appointed or elected to
preside over cases. The judges job is to control the adjudication of the cases
assigned to him or her. The judge may or may not decide who wins and who
loses in a particular case; often that decision is made by a jury, or, increasingly,
by an arbitrator, or by the parties themselves when they reach a settlement.
An arbitration may be required to hear a claim due to contract requirements,
statutes, or rules of court. An arbitrator is a disinterested third party who may
be chosen by the parties or appointed by the court. The method of selecting
the arbitrator may also be contractual. In some courts, each case is assigned
to a single judge, who is responsible for all aspects of the case from beginning
to end. In other courts, judges are assigned to particular tasks, so that a number of judges may preside over various aspects of the case as it wends its way
through the system.
Much of the activity in a lawsuit consists of written documents, prepared
by the parties or their lawyers, which are filed with the court. Papers are filed
by delivering them to the office of the clerk of the court, where they are added
to the courts permanent file of the lawsuit. You will often hear people refer to
court papers generically as pleadings, although, technically, the term pleadings includes only certain papers such as the complaint and answer. In this
CHAPTER 1
Introduction
SIDEBAR
Common Words, Uncommon Meanings
What does the word party mean? Do you know? Are you sure?
We use this trick question to illustrate a very important point: The law often borrows commonplace English words to use as technical terms, giving
them new and precise meanings that you would never guess at from their commonplace definitions. In ordinary English, for example, party is more or less synonymous with person. But in procedural law, as we have seen, a party is a person or other entity who is a plaintiff or defendant in a lawsuit. When a
procedural rule refers to any party, it does not mean any personit means anyone who is a plaintiff or defendant in the lawsuit in question. If you skimmed
over the definition of party, assuming that you already knew what the word
meant, you would find it impossible to make sense out of future material that
depends on the distinction between parties and nonparties.
So be warned! When you see a word in bold type in this book, pay attention to the definitiondo not assume its legal meaning is the same as its everyday meaning.
text, we will use the term court papers to mean any papers generated in the
lawsuit that are required by the rules to be filed with the court or to be delivered to an opposing party.
As you would expect, court rules typically require a party filing any papers with the court to deliver copies to the other parties to the suit. Delivery
of a copy to the assigned judge may also be required. Delivering copies of a
court paper to a person is often called service. Thus, if we say that Jane Does
complaint was served on Ajax Roofing Company, we mean that a copy of the
complaint prepared by Janes lawyer was delivered to Ajax in some way that
complies with the courts rules. There are detailed rules, which we will analyze in a later chapter, that specify how delivery must be made under various
circumstances.
Lawsuits are made up of issues. An issue is simply a question about which
the litigants disagree. A distinction that comes up a great deal in procedural
law is that between issues of fact and issues of law. Issues of fact arise when
the litigants disagree about what happened. For example, was the karate instructor who broke your nose an employee of the health club or not? That is
a question of fact. Does the law require a health club owner to compensate
someone injured by a volunteer instructor? That is a question of law. In an actual lawsuit, both issues would likely be disputed, but they would be decided
in quite different ways.
Deciding issues of fact requires evidence. Evidence is any information that
tends to establish the facts. The most common kinds of evidence in civil suits
are testimonial evidence and documentary evidence. Testimony consists of
a witness testifyingtelling what he or she knows about the case after swearing an oath to tell the truth. Documentary evidence is written or recorded informationcontracts, payroll records, computer printouts, and tape recordings are all examples of documentary evidence.
Issues of fact are ordinarily decided in a trial. A trial is a formal proceeding in which each side presents its evidence and argument. The purpose of a
trial is to reach a verdict. A verdict is a formal, written decision indicating
what was decided at the trial. Who does the deciding in a trial?: the trier of
fact. In a jury trial, the trier of fact is the jury. In cases in which there is no right
CHAPTER 1
Introduction
SIDEBAR
Common Law Pleading
Modern American procedural rules may seem arbitrary and exacting, but
our system of civil courts has evolved a great deal from its ancestor, the English
law courts of past centuries.
In all legal systems there is a constant tension between two competing
goals. On one hand, we want the system to be flexiblewe consider it unjust for
someone to lose his case because he failed to follow some trivial bureaucratic
rule. On the other hand, we want justice to be uniform and predictable; we do
not want the outcome of a case to depend on the whim of the judge who happens to decide it.
Prior to the late fourteenth century, English civil procedure leaned toward
flexibility. Nearly all procedural matters were handled orally, so the judge was
free to fashion a solution to fit the situation at hand.
Beginning in the fifteenth century, the pendulum swung decisively in the opposite direction with the invention of what is today referred to as common law
pleading. Suing someone consisted of convincing the court to issue a writa
highly formalized document that had to conform to very specific rules. There
was a writ for each type of case; if your grievance did not happen to fit one of
the existing writs, you were out of luck. If you mistakenly chose a writ that did
not fit your case, you lost, even if you would have been entitled to win had you
used some other writ. You did not dare make any factual mistakes, because you
were required to prove each and every fact set out in the writ, whether or not
necessary to your case.
Over the ensuing centuries, the English civil court system spawned ever more
complicated and arbitrary procedural rules. By the nineteenth century, civil
cases could drone on for decades, and the court system was fodder for Dickensian satire. English litigants turned increasingly to the church for adjudication
of civil disputes, taking advantage of the power of the chancellorthe head of
the churchto jail anyone who disobeyed him. Modern injunction practice
evolved from the practice of petitioning the English chancellor to order an opponent to do something.
In the twentieth century, reformers, seeking to make court procedure less arbitrary and complex, gained the upper hand in America. The Federal Rules of
Civil Procedure, adopted in 1938, enormously simplified lawsuit procedure in
federal courts, and most states followed suit in the next few decades.
The current explosion of litigation may be eroding this hard-won simplicity.
Court systems find it efficient to create new divisions that specialize in particular kinds of cases, but each new specialty creates its own set of procedural rules.
This promotes uniformity, allowing courtsand law officesto create an efficient, production line operation. But it also makes the system less flexible and
harder for nonspecialists to understand.
to a jury trial, or in which the parties waive a jury, the judge acts as the trier
of fact. The function of the trier of fact is, as the term indicates, to decide all
of the issues of factin other words, to decide what really happened when the
litigants do not agree on what happened.
Issues of law are always decided by the judge. Even if the parties disagree
about what the law means, it is the judge, not the jury, who decides the issue.
There is no need for evidence when deciding issues of law, which makes it pos-
Introduction
CHAPTER 1
sible for the judge to decide such issues at any convenient time, not just during the trial. Usually, the judge decides issues of law in response to a motion
by one of the litigants. A motion is simply a formal request asking the court to
decide some issue about which the litigants disagree.
Tasks
Investigate; form strategies; assemble evidence;
explore settlement; choose forum
Pleadings; discovery; motion practice; pretrial
practice
Presentation of evidence; verdict; post-verdict
motions; judgment
Appeals; collection procedures
PRE-SUIT PHASE
The real work of a lawsuit begins well before any papers are filed with the
court. During what we will call the pre-suit preparation phase, attorneys for
both sides may conduct investigations and attempt to negotiate settlements.
It is also important for the attorneys to think through their strategies before
filing suit; options will be more limited once the suit has begun and each side
has stated its position in writing.
PREPARATION PHASE
The lawsuit itself begins when the plaintiff files a complaint with the court.
Plaintiffs goal is usually to obtain a favorable judgment, which usually requires
getting the case to trial; defendants goal is usually to have the case dismissed
as early as possible. A number of things must, under typical rules of procedure,
occur before a trial can take place. We categorize these as pleading, discovery,
motion practice, and pretrial practice. These categories are arbitrary. We will
call them tasks rather than phases, to emphasize that they do not necessarily
take place in sequenceall four can be going on at the same time.
Putting It
Into Practice:
A plaintiff is injured on a
hike sponsored by the
resort at which she is a
guest. Who will decide
whether the resort had
any legal obligation to
warn the plaintiff about
the possible risks of going
on the hike?
10
CHAPTER 1
Introduction
TRIAL PHASE
Trials, like all other phases of a lawsuit, are governed by rules of procedure.
These dictate such things as the order in which evidence and arguments are
presented, and whether a jury will be used and if so what instructions it will
be given. There are also proceduresmotions for directed verdict and the
likethat allow the judge to cut the trial short if one party or the other fails to
offer enough evidence to support a decision in his or her favor. The trial typically ends in a verdict for one side. After the trial, the rules allow a short period of time for the parties to present motions seeking to have the verdict overturned or asking for the case to be retried. Then, the court will enter judgment.
POST-JUDGMENT PHASE
Putting It
Into Practice:
Identify all the points at
which a party could lose
a case.
You might imagine that when the court enters judgment, the dispute is resolved and the lawsuit is over. In the American civil court system, however,
entry of judgment often merely marks the beginning of a new phase of the battle. First, it is a rare case in which a party who is not satisfied with the courts
decision cannot find at least some plausible grounds for appeal. Appeals may
delay the final resolution of the dispute for several years even if the trial
courts decision is ultimately upheld; if the appeals court disagrees with the
trial courts decision, the case may have to be rescheduled for a new trial.
But suppose the trial courts judgment is not appealedsurely, now, the
dispute is over? Far from it: A judgment is not self-executing. In most cases, a
civil judgment is merely a declaration by the court that one party owes money
to the other. It is entirely up to the winning party to figure out how actually to
CHAPTER 1
Introduction
11
collect the money. There are procedures designed to help that allow the winning party to obtain information about what assets the loser has and where
they are located; impose and foreclose liens on those assets; and obtain the
assistance of the police or sheriff in seizing and selling assets.
A LT E R N AT I V E PAT H S
Lawsuits involve complicated procedures, cost enormous amounts of money,
and sometimes take years to resolve. Surely, you might ask, there must be better ways of resolving disputes?
In fact, many court systems now actively encourage various forms of ADR
alternative dispute resolution. To reduce the caseloads of judges, courts can
require that cases be decided by a volunteer arbitrator if the amount of money
in dispute is small. An arbitrator is someone who is appointed by the court or
selected by the parties to decide a case. Many courts actively promote settlement of cases by requiring parties to meet with a judge for a formal settlement
conference. Another approach is to enlist the help of a mediatorsomeone
who, instead of choosing a winner, will conduct negotiations to try to reach a
compromise. We will revisit the subject of ADR in detail in a later chapter, because it clearly represents the emergence of a strong trend in litigation.
ROLE
OF THE
PA R A L E G A L
It may already be obvious to the reader that the aspects of litigation that must
be conducted by a licensed attorneycourt appearances, mainlyrepresent
only a small part of the process. In modern litigation firms, paralegals are actively involved at every stage of a lawsuit. Particularly when cases are factually
complex, the assistance of paralegals in assembling, indexing, organizing, and
analyzing documents can be indispensable. Paralegals are often given the tasks
of preparing pleadings and writing motions, and are often assigned to prepare
and respond to discovery requests. Even at trial, it is not uncommon for attorneys to be assisted by one or more paralegals, whose detailed familiarity with
the facts of the case and ability to locate particular items of evidence quickly
may confer a competitive advantage. In short, litigation is a field in which the
scope for paralegal involvement is nearly unlimited, and an ambitious and welltrained paralegal can advance to a high level of challenge and responsibility.
ETHICAL ETIQUETTE
Putting It
Into Practice:
Why might litigation be
a good choice for a
paralegal who likes
diversity and thrives on
stress?
12
CHAPTER 1
ETHICAL ETIQUETTE
conduct because they are not licensed
to begin with. If legal assistants are to
enhance their status as paraprofessionals, however, and if they want to
expand their role within the legal
profession, they must not only adhere
to the ethical code of attorneys but
must also forge a code of professional
conduct for themselves.
The subject of professionalism is
a hot topic in the legal assisting field.
One of the professionalism issues that
is currently being debated is whether
legal assistants should be licensed,
thereby requiring them to meet
Introduction
continued
PRACTICE POINTERS
The diversity of tasks a litigation paralegal performs is astounding. They include, but are not limited to:
Drafting correspondence,
Reviewing and organizing documents,
Investigating facts,
Setting up case files,
Interviewing witnesses,
Conducting research,
Indexing files,
Drafting responses to discovery requests,
Preparing internal memoranda,
Summarizing depositions,
Setting up tickler systems,
A quick review of these tasks reveals that legal assistants must not only possess knowledge of substantive law, procedural rules, and computer technology,
CHAPTER 1
Introduction
13
but must also be able to communicate effectively and clearly with a wide variety of personalities. Furthermore, because of the time pressures created by
hectic litigation schedules, they must have excellent organizational and time
management skills.
The Practice Pointers sections in each chapter are dedicated to helping
you cultivate these latter skills. They will show you how to be efficient, orderly,
and highly effective even under the most stressful circumstances.
TECHNO TIP
A basic requirement of any legal assistant is a working knowledge of word
processing and associated programs
dealing with spreadsheets and databases. The most popular word processing program in the legal community is
WordPerfect. Microsofts Word is also
a popular program and with the advent
of the Office suite of programs is gaining
ground in the legal environment. A legal
assistant should be able to type competently, format text, insert graphics, and
utilize the programs bells and whistles,
such as the spelling and grammar checkers and the thesaurus. An added skill,
which is becoming more of a requirement, is the ability to use higher level
S U M M A RY
Civil procedure is the study of lawsuits and the laws that govern them; it is the
law of remedies. How litigants deal with the details dictated by the rules of
civil procedure may determine the outcome of a case.
Plaintiffs in civil actions are seeking damages, injunctions, or specific performance. Plaintiffs may be either natural persons, entities, estates, or political subdivisions. To adjudicate a matter, a court must have proper jurisdiction. Lawsuits are initiated when plaintiffs file pleadings with the clerk of the
court and serve the defendant with a complaint. Lawsuits revolve around issues of fact (which are resolved by the trier of fact) and issues of law (which
are resolved by judges). Issues of fact require the introduction of testimonial
and documentary evidence at trial, whereas issues of law are usually brought
to the courts attention when one of the parties files a motion.
During the pre-suit phase prior to a lawsuit being filed the attorneys conduct investigations, attempt negotiations, and prepare their strategies. The lawsuit begins officially when a complaint is filed. Discovery, which consumes most
of the time and effort expended in preparing for trial, occurs subsequent to the
filing of pleadings and is the time in which evidence is located. To resolve the
inevitable disputes that arise in reference to what evidence should be introduced at trial, what discovery should be allowed, and what issues should be
presented at trial, attorneys file motions with the judge. Prior to trial the parties
14
CHAPTER 1
Introduction
must follow pretrial procedures that help ensure the parties are prepared to go
to trial, that the issues are refined, and that some efforts at settlement have
been attempted. Procedural rules also dictate the admission of evidence at trial,
the presentation of arguments, the appropriateness of making motions, and the
offering of jury instructions. After a verdict is entered the parties are given an
opportunity to request that the verdict be overturned or that the case be retried. The parties may then appeal the courts judgment. Because judgments are
not self-executing, the prevailing party must follow the procedures required to
ascertain, locate, and seize the assets of the defendant.
As an alternative to the litigation process, parties may opt for some form of
alternative dispute resolution, involving the use of an arbitrator or mediator.
ADR is used frequently today as a means of reducing the caseloads of courts.
KEY TERMS
Adjudicate
Alternative dispute resolution
Arbitrator
Attorney
Civil action
Civil procedure
Concurrent jurisdiction
Court
Court paper
Damages
Defendant
Discovery
Documentary evidence
Entity
Filed
Injunction
Issue of fact
Issue of law
Judge
Judgment
Jurisdiction
Litigant
Litigate
Litigator
Mediator
Motion
Motion practice
Natural person
Party
Plaintiff
Pleading
Political subdivision
Procedural law
Served
Service
Specific performance
Substantive law
Testifying
Testimonial evidence
(testimony)
Trial
Trier of fact
Venue
Verdict
REVIEW QUESTIONS
1.
6.
2.
What are two of the most common types of evidence in a civil suit?
7.
How do the two goals of flexibility and uniformity cause tension in the legal system? How
has that tension affected the evolution of pleadings in England and the United States?
8.
9.
3.
4.
5.
CHAPTER 1
Introduction
15
PRACTICE EXAM
(Answers in Appendix A)
1.
2.
MULTIPLE CHOICE
c. discovery documents.
d. only a and b.
6.
Motion practice
a. takes place primarily during a trial.
b. facilitates the resolution of disputes that
arise between parties.
c. is a procedure used to locate evidence before trial.
d. goes on between the parties but does not involve a judge.
7.
Pretrial practice
a. is relatively simple in most cases.
b. helps ensure that parties are prepared for trial.
c. encourages parties to make a reasonable effort toward settlement.
d. b and c.
3.
8.
4.
9.
5.
Pleadings include
a. complaints.
b. answers.
government.
has suffered.
particular activity.
16
CHAPTER 1
Introduction
called ____________________ .
happened.
called ____________________ .
____________________ evidence.
compromise.
TRUE OR FALSE
27. Only natural persons can file lawsuits.
CHAPTER 1
Introduction
17
LITIGATION LINGO
CROSSWORD PUZZLE
(Answers in Appendix A)
DOWN
1. To conduct or defend a lawsuit
3. Requirement that lawsuits be brought in place least inconvenient for parties and witnesses
4. Agency of the government that has the power to adjudicate
5. Information that tends to establish facts
8. Power of court to adjudicate particular kind of case
9. Disinterested third party chosen by parties or appointed by court to decide outcome of case
10. Order by court to refrain from doing something
ACROSS
2. Delivery of copies of court papers
6. Question about which litigants disagree
7. Complaint and answer
8. Formal decision rendered by court and enforced by government
9. Decide outcome of case
11. Law of remedies
12. Formal request asking court to resolve issue over which parties disagree
13. Someone who helps parties negotiate a compromise
14. Acronym for alternative to court system
15. What federal and state courts share
5
2
6
7
10
11
12
13
14
15
18
CHAPTER 1
Introduction
LITIGATION LOGISTICS
(Answers in Appendix A)
Using the hypothetical at the beginning of the chapter involving the drunk driver sideswiping your
car, answer the following questions:
1. What is a substantive law issue that is likely to
arise in this case?
8. Give an example of an issue that might be resolved by filing a motion with the court.
PROCEDURAL PONDERABLES
1.
Five potential lawsuits are described at the beginning of this chapter. Assume that you are the
plaintiff in each case. What type of resolution
would you consider acceptable? In other
words, would you be satisfied with being compensated for your losses or would you want to
seek additional damages? If so, what damages
or additional relief would you want? Write
down the goals of your lawsuit in each of the
following cases:
a. Drunk driver sideswipes your car.
b. Tenant stops paying rent and refuses to
move out.
CHAPTER
COURTS AND
FILINGS
OBJECTIVES
In this chapter you will learn:
What a court is and where its power
comes from
What kinds of courts there are
A few procedural tools and concepts
20
CHAPTER 2
INTRODUCTION
Most of us have a general idea of what a court isit is a place where judges
preside over trials. If you want to sue someone, however, you need to know a
bit more than that. How do you find the right court? How many different ones
are there, anyway? How are they organized? Having found the right court, how
do you figure out what to do there? How do you find the rules that apply to
that particular court? Do your court papers have to be in some special format
in order to be accepted for filing?
The answers to these questions vary from place to place. We begin with a
number of general principles that apply everywhere. In keeping with our goal
of making this text practical and relevant to the needs of working paralegals,
however, we do not stop there: We offer specific information on how and
where to find the details for your particular state and city, and we provide
space in this chapter and throughout this text for you to write in the details
for your area as you obtain them or as your instructor provides them. We
strongly encourage you to supplement your text with local notes in this way;
you will find it quite valuable later to have this information available in an organized, easily accessible way.
W H AT A R E C O U R T S A N D
WHERE DO THEY COME FROM?
The ultimate law of the land in America is the United States Constitution. The
Constitution controls all other laws. Similarly, each state has a constitution,
which is the highest law in that state. The United States Constitution, as well
as each of the constitutions of the fifty states, follows the doctrine of separation of powers. To prevent any one part of the government from becoming
too powerful, the functions of government are divided among the legislative,
judicial, and executive branches. Congress and the state legislatures make
the laws; the executive branch, consisting of the president and the cabinet de-
CHAPTER 2
SIDEBAR
Where Do All of These Rules Come From,
Anyway?
The study of civil procedure is the study of rules. There are rules for everything: who can sue, how to sue, who can be sued, how trials are conducted, even
what kind of paper must be used for court filings.
As you may have learned in other classes, most legal rules in America come
either from statuteslaws passed by Congress or a state legislatureor case
law, which consists of rules created by judges in deciding previous cases. Federal
statutes, the laws passed by Congress, are assembled in a multivolume set of
books called the United States Code. Another set, called United States Code Annotated, contains each federal statute followed by a summary of all court decisions interpreting that statute. State statutes are similarly available as sets of
books containing all of the statutes for a given state.
Your Local Notes
The set of statutes for your state is:
______________________________________________________________________
______________________________________________________________________
Because legislatures are continually adding new laws and amending and
repealing old ones, sets of statutes are supplemented, usually once a year.
Statute research is never complete until you have checked the supplements!
Statutes are also available on-line or in the form of CD-ROM.
Case lawreported opinions of judges in actual lawsuitsis found in huge
sets of books called reporters. There are reporter sets for each state, for the federal courts, and for each major region of the country. These, too, are also available on-line and as CD-ROM sets.
Certainly, some procedural law comes from statutes and case law. The primary source of procedural law in the federal courts and in the courts of most
states, however, is court rules. Judges, often with the help of committees of attorneys and scholars, adopt their own rules for the conduct of cases in their own
courts. The U.S. Supreme Court made the Federal Rules of Civil Procedure, which
prescribe the procedure in all federal courts. Each lower federal court also has
its own rules for any situations not covered by the Federal Rules of Civil Procedure that the local judges consider important enough to need a rule.
Similarly, in most states, the highest court prescribes general rules of procedure that apply to all courts in the state (in a few states, notably California, procedural rules are established by statute). Lower courts then adopt local rules
of their own.
partments, carries them out. Courtsthe judicial branchapply them to individual cases, interpret them when disputes arise, and enforce them. Thus
courts in our system are rooted directly in Article III of the Constitution itself.
The Constitution does not, however, dictate exactly what kinds of courts
there are to be; neither, in general, do the constitutions of the fifty states. It is
up to Congress and the state legislatures to invent the details of the court system. Congress and the legislatures decide which courts should hear which
kinds of cases and supply all of the administrative bureaucracy necessary to
21
22
CHAPTER 2
keep a court system running. As for civil procedure, in most states, the courts
themselves make the rules under authority delegated by the legislature or the
state constitution (see sidebar).
Your Local Notes
The general rules of civil procedure in your state are:
__________________________________________________________________________
__________________________________________________________________________
Naturally, the details vary considerably from state to state, and they are in
a constant state of change as legislatures and court rules committees seek to
improve the system and deal with the increasing volume of litigation.
FEDERAL COURTS
We begin with the federal courts, because these are present in every state, and
many state court systems model their procedures after the federal courts.
Federal courts are, of course, those belonging to the federal government, in
contrast to the state courts, which derive their power from state governments
(although they are often actually administered by county governments). In the
federal system and in most states, there are three main levels of courts, as
diagrammed in Figure 21. First, there is a trial court of general jurisdiction, in
which almost all lawsuits must begin. The trial court is responsible for the
case from the time it begins until a judgment is rendered. Any proceedings to
collect the judgment also take place in the trial court.
Figure 21 Federal Judicial System and Flow of Cases to United States Supreme Court
SUPREME COURT OF THE
UNITED STATES
Appeals from
State Courts in
50 States, the
Supreme Court
of Puerto Rico,
and the
District of
Columbia Court
of Appeals
United States
Tax Codes
and various
Administrative
Agencies
Federal Trade
Commission
National Labor
Relations Board
Immigration and
Nationalization
Services
United States
District
Courts
with Federal
and Local
Jurisdiction
United States
District
Courts
with Federal
Jurisdiction
Only
Guam
Virgin Islands
Northern
Mariana Islands
89 Districts in
50 States
1 in District of
Columbia
1 in Puerto Rico
United States
Court of
Federal
Claims
United States
Court of
International
Trade
United States
Court of
Veterans
Appeals
CHAPTER 2
In the federal system, the trial court is the U.S. district court. As the
name implies, there is a U.S. district court for each federal district; each state
has at least one district, and some of the more populous states have two or
three. Each U.S. district court has a number of judges, who are appointed by
the president and serve for life unless impeached for improper behavior. If
you file a lawsuit in federal court, a U.S. district judge will preside over the
case and conduct the trial. Ordinarily, lawsuits in U.S. district court are
heard by a single judge; in certain special situations, a panel of three judges
may preside.
The second level of courts is responsible for appeals. An appeal is a formal request in which a party asks a higher court to review the decision of a
lower court and change it in some way. Courts that decide appeals are called
appellate courts.
In the federal system, this second level of courts is called the U.S. Court of
Appeals. The U.S. Court of Appeals is divided into eleven geographical regions,
called circuits. Each circuit is responsible for the appeals from all U.S. district
courts within its region (Figure 22). (The regions are called circuits because
in times past appellate court judges had to travel from district to district to
hear appeals. Today, they usually stay in one place and make litigants come to
them.) In addition, there is a separate Circuit Court of Appeals for the District
of Columbia, since government activities there produce a great deal of litigation and there is a federal circuit that hears specialized cases from all across
the country. If you are dissatisfied with the judgment of a U.S. district court,
your appeal will ordinarily be to the Court of Appeals for the circuit in which
your state is included. Lawyers often refer to U.S. Courts of Appeals simply as
a Circuit; for example, the U.S Court of Appeals for the Second Circuit, which
hears appeals from districts in New York and several northeastern states, is
referred to in lawyer jargon as the Second Circuit.
The highest court in the federal system is, of course, the U.S. Supreme
Court. The main function of the U.S Supreme Court is to offer a final level of
appeal. If you lose your appeal in the U.S. Court of Appeals, you can ask the
U.S. Supreme Court to review the case. In most situations, review by the U.S.
Supreme Court is discretionary; this means that it is up to the Court
whether or not to hear the appeal. In practice, the U.S. Supreme Court
chooses carefully from among the thousands of cases it is asked to review,
and accepts only a tiny fraction. This is in contrast to appeals to the U.S.
Court of Appeals, which are normally not discretionary; because the U.S.
Court of Appeals represents the first level of appeal, the court must ordinarily hear all appeals. (The U.S. Court of Appeals can, however, impose
penalties on litigants who waste its time with frivolous appeals that are
clearly without merit.)
23
Putting It
Into Practice:
Does every state have a
district court? A circuit
court? Where is the
district court in your
state? Is there a circuit
court in your state?
Where is the circuit court
for your jurisdiction
located?
MONTANA
NORTH DAKOTA
1
MAINE
MINNESOTA
OREGON
WISCONSIN
IDAHO
SOUTH DAKOTA
HI
NEBRASKA
LIF
CA
NI
OR
COLORADO
8 IOWA
Denver
KANSAS
10
Chicago
St
Louis
MISSOURI
ILLINOIS
6 OHIO
i
nat
IN
DI
AN
W VA
Atlanta
SOUTH
CAROLINA
ISS
ALABAMA
11
RID
GUAM
MD
DC
Washington DC
FLO
ALASKA
DEL
FEDERAL
IPP
ISS
NJ
Washington
LOUSIANA
CONN
New York
VA
ond
Richm
GEORGIA
TEXAS
Boston
NORTH CAROLINA
ARKANSAS
PA
lphia
Philade
DC
cin
TENNESSEE
NEW MEXICO
Cin
KENTUCKY
OKLAHOMA
ARIZONA
MASS
GA
NEVADA
UTAH
NH
NY
IC
WYOMING
9
San
Francisco
VT
HAWAII
NORTHERN
MARIANA
ISLANDS
VIRGIN
ISLANDS
WASHINGTON
Figure 22
24
PUERTO RICO
CHAPTER 2
STATE COURTS
In most states, the courts responsible for general civil lawsuits are organized
in three levels in a manner similar to the federal courts, that is, a trial court of
general jurisdiction, an appeals court, and a supreme court.
In most states, the trial court is called the superior court. (Exceptions include New York, where the general civil trial court is called the supreme court,
and Louisiana, whose court system is derived from French law and is based on
a different philosophy entirely.) Throughout this text, to avoid cumbersome
repetition, we will use the term superior court to mean the general civil trial
court of the state, even though it is not called that in a few states. Superior
courts are state courts in the sense that they are created by state law, but
there is usually one for each county, and they are usually funded and administered by county governments.
Appeals from the decisions of state civil courts are taken to the state court
of appeals (in New York, the appellate division of the state supreme court).
Procedure is similar to that already described for the U.S. Court of Appeals.
State courts of appeals are headquartered in the states capital city, and may
have branches in a few other cities in the state.
Each state has a state supreme court (except New York, where the highest
court is called the Court of Appeals) whose function is to hear appeals whose
issues it considers important. State supreme courts are located in the capital
cities of each state.
Each state typically has many superior courts (one for each county) but
only one court of appeals (which may have several divisions or departments)
and one supreme court (Figure 23).
A D M I N I S T R AT I O N
There is a great deal more to a court system than just judges conducting trials.
Someone has to keep track of the cases, assign them to judges, schedule the trials and hearings, maintain custody of evidence, make sure that all the papers
filed with the court can be found when needed, and manage all of the other administrative tasks without which the system would come to an immediate
standstill. When you consider that a typical urban court system disposes of
25
26
CHAPTER 2
Figure 23
SUPERIOR COURT
PROBATE COURT*
COUNTY COURT*
MUNICIPAL
COURT*
(In some cities, it is customary to
have less important cases tried by
municipal justices or municipal
magistrates.)
DOMESTIC RELATIONS
COURT*
(Also called Family Court or
Juvenile Court.)
Courts of special jurisdiction, such as Probate, Family, or Juvenile, and the so-called inferior courts, such as Common Pleas or Municipal courts,
may be separate courts or may be part of the trial court of general jurisdiction.
** Justices of the Peace do not exist in all states. Their jurisdictions vary greatly from state to state where they do exist.
CHAPTER 2
27
ing judge, the secretaries and staff of the individual judges, and in many court
systems, a court administrator.
The function of the clerk of the court is to deal with paperwork. Every step
in a lawsuit generates paper, all of which must be filed and kept available for
future proceedings. All papers pertaining to all cases flow through the clerks
office. A separate chronological file is kept for each case. The clerks office also
has the power to issue routine court orders such as summonses and subpoenas, thus freeing judges from such mundane tasks.
The presiding judge has overall responsibility for the smooth running of
the court system. The presiding judge makes policy decisions about how the
workload is divided among all the judges in the court, which judges are assigned to which specialty divisions, and other matters involving the work of
SIDEBAR
Filing
A great deal of the activity in a lawsuit involves the submission of written
material to the court for inclusion in the permanent record of the case; this is referred to as filing. Papers are filed in a case by delivering them to the office of
the clerk of the court. The clerk of the court is a government official who is appointed or elected to accept and keep track of the enormous volume of paper
that flows into a typical court system. In most urban court systems, the clerks
office is staffed by a number of deputy clerks, and often resembles a bank lobby
with its counters and windows for handling transactions with the public. The
clerk will accept for filing only papers that are in proper form. Local court rules
typically specify formal requirements such as paper size, line spacing, and captions. A filing fee will also be required for many types of filings.
The clerk of the court keeps a separate file for each lawsuit. Papers filed by
the litigants are added to the file in chronological order and usually indexed.
These files are public records and can be inspected and copied by anyone, unless a judge orders particular papers to be sealed. Whenever there is a hearing
before a judge in the case, or when the judge is asked to rule on an issue, the file
may be sent to the judge so that he can quickly become informed about what
the case is about and what rulings have already been made. If there is an appeal, the file can be sent to the appellate court, providing the appeals judges
with a complete record of everything that happened in the case.
You may be curious about who actually goes and stands in line at the clerks
office to file the court papers. Busy law offices usually have many papers to file
with the clerk of the court each day, so they employ messenger services or
process service firms to take filings to the clerks office. Occasionally, however,
situations will arise in which a lawyer is working feverishly to complete some required filing prior to a deadline, and a paralegal will be sent rushing to the
clerks office at closing time to file the paper. We recommend that you file papers
at the clerks office yourself occasionally, so as to become familiar with the
process and the requirements. This knowledge will help you avoid common mistakes that can cause the clerk to reject a filing. You can also place yourself in a
position to be very useful to your employer if you make a few friends at the clerks
office, so that you have someone you can call and ask when some obscure question arises about an office procedure. For example, merely knowing how to get
a paper filed after closing time can be extremely valuable information when
your employer is facing a deadline.
28
Putting It
Into Practice:
Why is it important to
establish a good working
relationship with the
judges secretary and
office staff?
CHAPTER 2
the judges. In some court systems, each case is assigned to one judge, who
conducts all proceedings in that case. The benefit of this approach is that it allows the judge to become familiar with the facts of the case as it progresses.
In other courts, cases are not permanently assigned to one judge; instead,
judges are assigned by function, so that motions will be heard by a motions
judge, discovery disputes by a discovery judge or referee, and trials assigned
to trial judges at the time a case is ready for trial. This system is thought to
promote efficiency by allowing judges to become specialized and ensuring an
uninterrupted flow of work to each judge. In court systems that have court administrators, the work of assigning cases to judges and maintaining and
scheduling the case flow is done by the court administrators office.
Each judge has his or her own office and staff, typically consisting at least
of a secretary, a bailiff, a court reporter, and one or more administrative clerks.
Federal judges and state court appellate judges also have one or more law
clerks on staff, typically recent law graduates who are hired to do legal research and help write opinions.
The judges secretary and clerical staff are important people in litigation,
because they are responsible for keeping the judges calendar and scheduling
most routine activity in the case. Also, rules of ethics prohibit lawyers (and
paralegals!) from engaging in ex parte communications with the judge about a
pending lawsuitthat is, speaking to the judge without the opposing attorney
having an opportunity to participate. Therefore, if you need to know whether
the judge has made a ruling on a particular issue, or whether a particular paper has been received, or if you need to have a hearing scheduled, or if you
have general questions about preferred practices in this judges court, it is the
judges secretary or clerk to whom you inquire.
SPECIALTY COURTS
In addition to the normal three levels of courtsone general trial court and
two levels of appellate courtsthe federal government and many states have
established other courts to hear particular types of cases. These include, on
the federal level, the U.S. Court of Claims, which hears cases involving claims
against the government; the U.S. Tax Court, which, as the name implies, hears
tax cases; and the U.S. Court of Appeals for the Federal Circuit, which hears
appeals in patent and trademark cases. Another major specialty court is the
U.S. Bankruptcy Court, which hears bankruptcy matters. Many states have
also created specialty courts, particularly for tax cases. What specialty courts
has your state created?
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
The hope is that by specializing in a single type of case, these courts can
make more informed decisions and process cases more efficiently. One side effect of this specialization is, of course, that procedure in these courts also becomes specialized. Procedure in specialty courts, though often similar to that
in general civil suits, is beyond the scope of this text.
Even where separate specialty courts have not been established, the trend
is to organize existing courts in divisions devoted to particular types of
cases. On the civil side, state trial courts often have separate divisions for, say,
divorce and probate cases.
CHAPTER 2
29
We have said little so far about criminal cases. Because this text is devoted to civil suits, we limit ourselves to the observation that procedure in
criminal cases, whether heard in the same court as civil cases or in a separate court or division devoted exclusively to them, is completely different
from that in civil cases. An entirely separate set of rules governs criminal procedure, and many of the rules involve difficult constitutional issues pertaining to the rights of accused criminals and prisoners. We make no pretense of
addressing the subject here.
Putting It
Into Practice:
Prepare a diagram
showing the identities of
all the courts in your
jurisdiction and their
relationships to one
another. Where are each
of these courts located?
30
CHAPTER 2
H O W D O I F I N D O U T W H AT
P R O C E D U R E S A P P LY ?
In this text, you will learn considerable detail about the rules of procedure that
govern civil cases in federal court. The basic procedural concepts you will
learn are valid in all American courts, and the details are valid in all federal district courts and, with minor modifications, in the state courts of a majority of
the states.
Thus, the broad foundation for your knowledge of procedural law will
be the Federal Rules of Civil Procedure. Future references to the Federal
Rules of Civil Procedure will be in the form of FRCP, Rule _____ . In federal
court cases, you will go directly to the federal rules for your answers to procedural questions. In many situations, you may find that, although there is
a federal rule that pertains to your particular question, it does not offer
enough detail. Then you resort to secondary sources to help you interpret
the rules.
CHAPTER 2
31
ADMINISTRATIVE DETAIL
Neither the Federal Rules of Civil Procedure nor typical state rules of procedure cover the mundane details of clerks office requirements. Does this mean
there are no rules and you can do whatever you want? Sorry, but no. Each
court adopts local rules of procedure, which dictate such things as the size
and type of paper to be used for court filings; the proper format of court papers; limitations on how many pages can be submitted; and a great many other
such details that, if ignored, will result in the clerks office instantly rejecting
your filing. If, as often occurs, you are trying to get a paper filed shortly before
a deadline, this can cause considerable consternation! These rules can seem
incredibly arbitrary at times, buttrust usarguing with the clerk about it
will get you nowhere. So, get a copy of the local rules for each court in which
you will be litigating, read them, and follow them.
Where do you obtain local rules? The best place is directly from the clerk
or court administrator of the court in questionthat way you will be sure
your copy is up to date. Local rules can sometimes be found in law libraries,
but if you rely on this source, be sure to double-check whether there have
been any revisions. What are your local rules of procedure called? Where are
they found?
Putting It
Into Practice:
You want to depose a
witness to an accident.
How would you determine
if you have a right, in
your state trial court, to
depose this individual?
32
CHAPTER 2
SIDEBAR
Citations
All citations to cases follow this format:
Name
Volume
Name of
Page
Court
of Case
Number
Reporter
Number
Name
Date
CHAPTER 2
SPECIALTY CASES
Another subject often addressed in local rules is the procedure in specialty
cases such as domestic relations and probate. Such cases often involve specialized court papers designed to promote efficient processing of that kind of
case; these specialized requirements will be found in the local rules.
Your Local Notes
___________________________________________________________________________
___________________________________________________________________________
33
34
CHAPTER 2
ROLE
Putting It
Into Practice:
Why is it important for
paralegals to have good
management and
people skills as well as
a good command of legal
procedures and
principles?
OF THE
PA R A L E G A L
Interaction with the court system is a fundamental part of litigation. Communications with the judge will normally be handled by the lawyer responsible for a case
(although some jurisdictions are experimenting with rules allowing paralegals to
make certain types of court appearances). Paralegals are often given rather wide
responsibility for administrative interactions with court system staff: scheduling
hearings, maintaining calendars, making sure required filings are made on time,
determining why a case has gotten stuck in the system and figuring out what to
do to get it moving again, and so forth. The importance of these functions cannot
ETHICAL ETIQUETTE
CHAPTER 2
be overstated; it does no good to have the citys most brilliant trial lawyer ready
to try a case if the trial setting has been cancelled because of some scheduling
glitch in the court system. Top litigation firms expect their paralegals to work
proactively with the court system staff to anticipate administrative problems and
keep cases moving through the system in the most advantageous possible way.
PRACTICE POINTERS
To Do Lists
One of the most challenging tasks legal assistants face is organizing their
time. In many firms, they report to several attorneys and must interact with
other legal assistants and legal secretaries. In the course of one day, they can
be assigned numerous tasks by a number of attorneys and need to delegate or
discuss responsibilities with many different people. Details can be overlooked
in the process and deadlines can be easily overlooked or confused.
To facilitate the organization of each day, we encourage you to prepare to
do lists that enumerate each task that needs to be accomplished, its projected date of completion, and its actual date of completion. Using this list can
help you budget your time and can also help keep you on task so that you do
not get distracted by the many demands on your time. Checking off each task
as you complete it provides a feeling of accomplishment and reduces the
sense of frustration you are likely to feel when everything seems to interfere
with your anticipated work plan. The tasks that you do not complete can be
rolled over to the next day, thereby eliminating the risk of forgetting prior assignments when new ones are given. By recording both projected and actual
dates of completion, you can begin to assess your efficiency and how realistically you budget time.
To better evaluate how effectively you are managing your workload, consider adding a column that records the causes of delays. Over time you may
realize that certain people in your office are frequently the cause of your not
being able to accomplish your assignments within your allocated time frame.
By realizing this you can then plan accordingly in the future or come up with
ways to gently and subtly alter the obstructing individuals behavior. If an attorney, for example, consistently fails to respond to you within an agreed on
time limit, thereby precluding you from completing your work in a timely manner, consider gentle (and, if possible, humorous) reminders presented in such
a fashion that she cannot possibly avoid seeing them. Doing this not only
makes you look more efficient and reliable to your supervisor but also better
serves your client.
35
36
CHAPTER 2
TECHNO TIP
Today many courts have automated
their systems and allow for access (but
not modification) of the courts files
electronically. Some provide access
only to the docketthe names and
dates on which document were filed or
orders and minute entries entered.
Others allow the documents to be
viewed, usually as a graphics file. Many
also show scheduled appearances such
as oral arguments and trial dates. Access to the courts database may be free
or a charge may be made to the viewer.
The Maricopa County Superior Court in
S U M M A RY
The United States Constitution is the highest law of the land just as the constitution in each state is the highest law of that state. The courts were created
by the constitution, but the administrative bureaucracy necessary to run the
courts is created by the legislative branch. The highest court of each state is
responsible for creating state procedural rules while the U.S. Supreme Court
wrote the Federal Rules of Civil Procedure.
The federal court system consists of district courts (trial courts), circuit
courts (courts of appeal), and the U.S. Supreme Court. There are eleven circuit
courts plus a Circuit Court of Appeals for the District of Columbia and a federal circuit court for specialized cases. The appeal process ends with the U.S
Supreme Court, which accepts only a small fraction of the cases it is asked to
review. Federal specialty courts include the bankruptcy and tax courts, the
U.S. Court of Claims, and the U.S. Court of Appeals for the Federal Circuit.
Appellate courts review the trial court record, hear oral arguments, and
research the law to arrive at their decisions to either affirm or reverse the decision of the trial court. They focus on issues of law and can review issues of
fact only to the extent they decide that the trial courts decision was reasonably based on the evidence presented at trial. Appellants and appellees may
present briefs but can only make oral arguments if the court allows them. Most
states mirror the federal system with trial courts (usually called superior
courts), courts of appeal, and a supreme court (except in New York where the
highest court is the court of appeals). Claims below an established threshold
amount are often tried in small claims, justice of the peace, or city courts.
The administrative function of the courts is a vital aspect of the system
that is essential to the efficient management of thousands of cases. The court
clerk is responsible for dealing with all of the paperwork generated by cases,
has the authority to issue summonses and subpoenas, and is the official with
whom all court documents are filed. The presiding judge decides how the
workload will be distributed among judges, and the court administrator assigns judges to cases and maintains the case flow. The judges clerical staff
maintains the judges calendar and answers questions from parties so that
they do not interact ex parte with the judge.
CHAPTER 2
37
A plaintiff can sue in any court that has jurisdiction. Jurisdiction is dependent on the residence of the parties, how much money is in dispute,
whether the dispute involved acts or events in the forum state, and whether
the dispute should be decided under federal or state law. Looking for the court
that will provide the optimum results is called forum shopping.
More detail about the federal rules can be found in Federal Practice and Procedure by Wright and Miller or in the United States Code Annotated (U.S.C.A.).
The state procedural rules can be found in their Rules of Civil Procedure publication as well as the court rules volume of the annotated state statutes. All of
these resources can be updated by looking at the pocket parts. Compliance with
the local rules, which dictate such things as paper size and format for court filings, can prevent the rejection of these filings by the court clerks office.
KEY TERMS
Affirm
Annotation
Appeal
Appellant
Appellate court
Appellee
Brief
Circuit
Citation
Discretionary
District court
Federal court
Federal Rules of Civil
Procedure (FRCP)
Filing
Forum shopping
Forum state
Overrule
Reverse
State court
Trial court
REVIEW QUESTIONS
1. Who creates the details of the court system?
Who creates the procedural rules that govern
the courts?
2. What are the three levels of courts in the federal
system?
a. What is a circuit?
b. How does a district court differ from a circuit court?
c. Are appeals before a U.S. Circuit Court of Appeals typically discretionary? What about
appeals before the U.S. Supreme Court?
3. How do the three levels of state courts compare
with the three levels of federal courts? Is the organization of court systems uniform from state
to state?
4. How is an appellate judges treatment of questions of law different from her treatment of
questions of fact?
5. What is the difference between reversing a decision and overruling a decision?
6. Why is it important for paralegals to understand the administrative functioning of the
court system?
38
CHAPTER 2
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
1. The courts
a. were created by the legislative branch.
b. interpret the laws created by the legislative
branch.
c. are independent of the other two branches
of government.
d. none of the above.
2. Federal statutes
a. can be found in the United States Code.
b. must be continually updated.
c. are available on-line.
d. all of the above.
3. In the federal system
a. all cases begin in the circuit courts.
b. there are district courts.
c. district court judges serve for life.
d. all appeals heard by the circuit courts are
discretionary.
4. Appellate courts
a. focus on resolving issues of fact by receiving
evidence and hearing testimony.
b. must return cases to the trial court to be retried if they determine that an error was
made regarding an issue of fact.
c. are comprised of panels of judges.
d. make decisions by reviewing the record and
hearing arguments.
e. c and d.
5. The administration of a court system
a. oftentimes involves the handling of tens of
thousands of cases.
b. is one thing a legal assistant need not know
anything about.
c. deals only with the scheduling of trials and
the assigning of cases to judges.
d. is a relatively minor aspect of the court system.
CHAPTER 2
39
23. The state in which the court is located is referred to as the _______________ state; shopping for a court that will lead to the most favorable results for the plaintiff is called
_______________ .
24. To find out some detail about a federal rule you
could consult _______________ or in the
_______________ ; to update your research in
this treatise you would need to look at the
_______________ .
25. In the U.S.C.A. you find _______________ , which
is a collection of summaries of cases following
each procedural rule; you can find those cases
using _______________ , which are short references, giving the name of the case and the reporter in which it is found.
26. The _______________ rules of procedure dictate
the proper format of court papers, the size and
type of paper to be used, and other details relating to requirements set forth by the court
clerks office.
TRUE OR FALSE
27. The U.S. Constitution controls all other laws.
T F
29. The state legislatures and Congress must decide which cases the courts will hear.
T F
40. The court administrator is responsible for handling all of the administrative functions of the
courts.
T F
41. The benefit of assigning one judge to a case is
that the judge becomes familiar with the facts
of the case as it progresses.
T F
42. Assigning judges by function rather than by
case arguably promotes efficiency in the court
system.
T F
43. Papers filed with the court clerks office are considered public records.
T F
44. Legal assistants rarely need to file papers with
the court clerk so having a working knowledge
of the court clerks office is not important.
T F
40
CHAPTER 2
49. The Federal Rules of Civil Procedure are irrelevant to any procedural issue at the state level.
T F
50. Failure to comply with the local rules of procedure can result in the court clerk rejecting your
filing.
T F
48. When researching state procedural issues, consult the state version of the procedural rules
LITIGATION LINGO
(Answers in Appendix A)
Read the description and provide the word that matches that description.
WHATS MY NAME?
1. I help you locate cases in law reporters.
2. I am the trial court at the federal level.
3. I am a written argument prepared for the appellate court.
4. I am the person who has to respond to number 3.
5. I am the summaries of cases found in the U.S.C.A.
6. I am the state in which the court is located that is hearing a case.
7. I am the judge who is responsible for the smooth running of the courts.
8. I am the person who is most likely to reject your court filing.
9. I am the court where cases involving relatively small amounts of money are heard.
10. I am one of the eleven geographical regions into which the U.S. Court of Appeals is divided.
11. I am what an appellate court judge does when she changes the trial courts decision in a case up on appeal.
12. I am one of the rules that dictates the required format for a document that is about to be filed.
13. I am a type of appeal that a court can decide to hear or not to hear.
14. I am responsible for maintaining the orderly flow of cases and for assigning cases to judges.
15. I am the one you contact if you have a question about whether the judge has received a particular document or if you want to know how the judge prefers to set up exhibits during trial.
16. I am a treatise you could consult if you wanted to find out more about a particular federal rule.
17. I am where you would look if you wanted to update the rule you looked up in number 16.
CHAPTER 2
41
LITIGATION LOGISTICS
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
3.
PROCEDURAL PONDERABLES
1.
CHAPTER
ROAD MAP
OF A LAWSUIT:
PREFILING
PREPARATION
AND PLEADINGS
OBJECTIVES
In this chapter you will learn:
What happens in the beginning
into them
What paralegals do in the early stages
of lawsuits
44
CHAPTER 3
The discussion of the next few chapters will draw examples from the following
narrative. The people, places, and occurrences described are entirely fictitious. We have chosen to place these events in particular named states because the alternative of inventing fictitious states would make the narrative
awkward. In describing the litigation that might result from this hypothetical
situation (or hypo, in the jargon of law students everywhere) we will refer to
the courts of the states named; the procedure we describe, however, is that of
a generic federal district court or of a generic state court in a federal rules
state. It is a composite of common procedural practices taken from various
courts. For details applicable to a specific court, you should refer to that
courts rules.
hypothetical
Shannons Ordeal
hannon was not sure, afterward, what had awakened her. It might have
been the muted swish of the solid hotel room door opening over the thick
carpet, or the rustle of the curtains as the light summer breeze wafted momentarily through the open window, or perhaps it was the change in pitch of
the traffic sounds from the nearby freeway. Shannon shifted restlessly under
the single sheet, and blinked as she struggled to make out the luminous digits of her designer wristwatchone-fifteen in the morning. She groaned quietly, willing herself to go back to sleep, needing to be sharp for her sales
presentation at nine oclock tomorrow morningno, she corrected herself,
this morning.
Suddenly, Shannon was seized with the certainty that she was not alone
in the room. Afraid of making noise and alarming the intruder, she silently
opened her eyes. Her breath caught in her throat as she observed the tall man
standing at the foot of the bed, his back to her, removing first his trousers, then
his boxer-style underwear.
She had to do somethingquickly, now, think! Where had she left her
purse? In the bathroom . . . no! There it was, on the bedside table, a few feet
away. Silently, silently, feigning sleep, she edged to her right, toward the bedside table, reaching for the purse. . . . Miraculously, the intruder still had his
back turned, taking his time . . . a few seconds more . . . quietly opening the
flap of the purse. . . .
Then, everything happened in a blur. Shannon withdrew the cheap Saturday Night Special 0.22-caliber revolver from her purse as the intruder
turned toward the bed. Shannon aimed at the intruders chest and pulled the
trigger. The hammer fell with a harmless click. The intruder, startled, froze
for a moment. Shannon pulled the trigger again, pulling the shot low and to
the right, this time striking the tall man in the side. The intruder yelled in pain,
threw himself on top of Shannon before she could fire again, and wrenched
the gun from her hand. Shannon screamed as her forefinger, caught in the trigger guard, broke with an audible snap.
Shannons mind had already begun shutting out the reality of the inevitable
violation, so it took a moment for the intruders words to register. What the
devil is the matter with you, you . . . crazy. . . . Then, bleeding profusely from
his gunshot wound, the tall man collapsed on top of her, unconscious.
Crazy with fear, Shannon wriggled out from under her attacker. She ran
from the room and, bypassing the elevators as too slow, raced down the fire
stairs to the lobby.
Arnie Trevayne, stuck with the graveyard shift at the front desk this week,
knew he was in deep trouble the minute he saw Shannon burst hysterically
from the stairwell in her nightgown. The tall man, Dr. Art Collins, here in Las
CHAPTER 3
Vegas for a medical convention, had returned from a late dinner, stopped at
the desk, and asked Arnie for his room key. The elevator doors were closing
behind Dr. Collins when Arnie realized his mistake. Arnie thought of rushing
after the doctor, but he really shouldnt leave the deskthere were no other
hotel employees around at that time of night. Anyway, the man would certainly return when the key failed to open his door.
Except it wasnt Dr. Collins who was now running toward him, it was that
sales executive lady from the room next to Dr. Collinsthe room whose key
Arnie had mistakenly given to Dr. Collins. She was screaming incoherently,
something about calling the police.
Quickly weighing his options, Arnie dialed 911.
Then he calmly palmed the key to Dr. Collinss roomthe correct key this
timetook the service elevator to the fourth floor, entered Shannons room,
and quickly spotted the room key laying on the dresser.
Arnie didnt hesitate. He switched the keys, left the room, and was back
at the registration desk before the police arrived.
THE PHASES
OF A
L AW S U I T
Most of us have a general idea what it means to sue someone. The aggrieved
party goes to a lawyer and files suit; two or three commercials later, there is
a trial, in which two lawyers extract the real truth from a few witnesses by
clever questioning, then deliver impassioned and eloquent arguments to a jury.
The jury returns a verdict, there is a winner and a loser, and the suit is over.
There is, as you would expect, a great deal more to litigation than that. Trials make exciting television, but most of the important activity in a lawsuit
meaning the activity that determines who wins or loseshappens long before
the trial begins, some of it even before suit is filed.
Lawsuits come in all shapes and sizes; some end quickly, others drag on for
years or even decades. It may surprise you that very few end in a jury verdict;
many more are settled somewhere along the way. Outcomes are rarely as satisfyingly decisive as depicted by Hollywood. To a determined litigant, an adverse jury verdict merely marks the beginning of another phase of the conflict.
Nevertheless, most lawsuits follow a rather predictable path. Many variations are possible, but the broad outlines are dictated by the rules of procedural law. We now tour some of the main landmarks along that path, using as
a point of departure the hypo related at the beginning of this chapter.
Our exploration generally follows along the route laid out by the descriptions of the phases of a lawsuit from Chapter 1 (see Figure 11). We reiterate
that you should not attach too much importance to the sequence of events; in
most lawsuits, many tasks occur simultaneously, rather than in sequence.
As Shannon entered the Phoenix law offices of Simon and Porter, the first
thing she noticed was the statue of the blindfolded goddess holding the scales
of justice, prominently displayed on a pedestal in the reception area. Perhaps
it was a good omen, she reflected bitterlyshe certainly hadnt seen much
justice so far, in the two weeks that had passed since what she had come to
think of as The Ordeal.
Physically, Shannon was a wreck. Each night, around two in the morning, overcome by exhaustion and lulled by the sound of the television that
she now left on continuously for company, she would drift into a troubled
and restless sleep, only to be jerked bolt upright minutes later, heart pounding in terror, gripped by the vivid image of the tall man as he threw himself
45
46
CHAPTER 3
on top of her yet again in her imagination. Her broken finger throbbed with
pain, but the pain pills seemed to intensify the panic attacks, so she avoided
taking them.
Shannon tried earnestly to continue her demanding schedule of sales
meetings and product demonstrations without interruption. But when, for the
second time, she burst spontaneously into fits of weeping in the midst of her
presentation, Shannons sales manager gently but firmly insisted that she
take a leave of absence, to get some rest, get yourself back togetherwhich
only made the situation all the more unbearable. Her job had provided at
least some distraction, some escape from the endless mental replays, and,
worse, without the continual infusion of sales commissions from new accounts, Shannons income would quickly dwindle.
The police investigation, far from being a source of satisfaction and comfort, had merely added another dimension to Shannons distress. She had cooperated fully when the first police officers arrived at the hotel, expecting
sympathetic treatment. The officers words still echoed in Shannons memory: Shannon Martin, you are under arrest for aggravated assault and battery and illegal discharge of a firearm. . . . You have the right to remain
silent. . . .
But Im the victim! she had wanted to scream. They had waited for a
woman officer, who drove her in a police car to the hospital to have her broken finger set. Then she had sat for what seemed like hours in a locked room
at the police station.
Finally, with the suns first rays penetrating the rooms grimy barred window, a well-dressed woman appeared. Im Detective Sergeant Marnell, with
the Las Vegas Police Department. . . . Something about an investigation.
Youre free to go, but please stay in touch. Shannon had a thousand questions, but the impulse to escape, to get out of there as fast as possible, was so
intense that she mutely collected her belongings, rushed outside, and flagged
down a cab to the airport, where, after waiting two hours, she was first in line
to board the 8:00 A.M. flight back to Phoenix.
Since then, she had called every day, persisting in the face of Detective
Marnells thinly veiled impatience. Had her attacker been arrested? Did they
need her to file charges? These things take time. . . .
Finally, today, as Shannon sat in her kitchen, her thoughts drifting from
the mindless babble emanating from the television, something snapped. With
sudden resolve, she opened the yellow pages, chose a number, and dialed.
Now, a few hours later, Shannon strode resolutely up to the receptionists
desk. My name is Shannon Martin. I have an appointment with Allen Porter.
PREFILING PHASE
Meeting Shannon for the first time, Allen Porter will have little or no idea why
she has decided to see a litigator. The first step is to interview his prospective
client and get enough of the facts to allow him to decide whether there is a potential lawsuit lurking amid the confusion, and, if so, whether it is one that he
should undertake. If any of Shannons claims might create conflicts of interest
with other clients of his firm, or if her case presents too many issues outside
his area of expertise, he will decline the representation and offer to refer her
to another attorney.
If he accepts the case, the next task is to obtain whatever pertinent information Shannon herself can provide. Often, there will be important gaps in the
CHAPTER 3
clients knowledge of the facts. Shannon, for example, can tell her lawyer volumes about what happened to her and how it has affected her life, but she simply does not know many of the facts that will be needed to prepare a lawsuit
she probably does not even know who she should sue.
One of Allen Porters first duties, therefore, will be to obtain more detailed
facts from other sources. With the facts in hand, he will be better equipped to
make strategic decisions about how best to carry out the suit, as well as to attempt settlement if feasible.
Allen Porter looked up from his notepad as Shannon finished speaking and
smiled reassuringly. It certainly sounds as though you ought to sue someone
Im just not sure who, at this point. He paused, waiting for Shannon to make
eye contact. Why dont we see if DetectiveMarnell, right?Detective Marnell is in, maybe she can fill in some of the blanks. He looked at his notepad
again, then reached for the telephone.
You are probably thinking that it would not be very difficult to obtain this
minimal information, and you are right. In garden-variety auto accident cases,
the information needed to draft a complaint can often be obtained from the police report. There are often good reasons to do considerably more investigating before suing, however.
Modern courts generally take a somewhat active role in moving cases
through the system. Lawyers are expected to prepare cases for trial diligently
once suit is filed, and most courts require particular tasks in the preparation
of the case to be completed within specified time periods after suit is begun.
Many courts have adopted rules requiring each party to give written disclosure, within the first few months after suit is filed, spelling out in detail exactly
what each partys claims are, what written evidence exists, what witnesses
might be called, and what information each witness has about the case. At this
stage, lack of preparedness can carry a heavy penalty: Parties may be barred
from using evidence that is not promptly disclosed.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
47
48
Putting It
Into Practice:
Why might Allen Porter
have reservations about
suing at this point? Are
there any ethical
considerations for him
to ponder?
CHAPTER 3
The point is that once suit is filed, there will be a great deal of pressure to
meet various deadlines, so it is an advantage to prepare as much material beforehand as possible. Ideally, plaintiffs attorney would prefer to delay filing
until she is fully familiar with the case, has reviewed all the evidence, has
planned a strategy, and can easily meet the court-imposed disclosure and
other deadlines with a minimum of last minute scrambling. Other considerations often preclude an ideal level of prefiling preparation, but, in general, an
early and thorough factual investigation may give one contestant a nearly unbeatable edge, whereas a poor or careless one may create an insurmountable
handicap.
Shannon waited expectantly as Allen Porter thanked Detective Marnell
and hung up the telephone.
Okay, I think the picture is becoming a bit clearer now. It seems that Dr.
Collinsthe man in your roomthought he was going into his own room. He
picked up his key from the front desk when he came in, and he swears he
used it to open your door. You were in 407, he was in 409, right next door.
Hes recovering, by the wayit looks as though hell get out of the hospital in
another week or two.
Shannon interrupted, Are they going to arrest him? They wouldnt tell me.
They dont think that they have any grounds for arrest. They believe Dr.
Collins, that it was a mistake. Hes a prominent physician in Dallas, a family
man, nothing at all in his background to suggest this kind of thing. The big
question is, how did he get into your room? The Banbury Park Hotel people
are apparently saying that you must have left the door ajar and forgotten to
lock it.
Shannon exploded. Thats a lie. I checked it twice before I went to bed.
Im practically paranoid about that. Why do you think I bought a gun?
CHAPTER 3
49
These questions involve mainly issues that are substantive, not procedural, but they need to be answered before a complaint can be properly
drafted. Shannons complaint must, among other things, state who she is suing and what she is asking the court for. Each question will require factual investigation and legal research before a dependable answer can be given.
We do not mean to imply that these decisions are forever carved in stone
and unchangeable after suit is filed. Within limits, complaints can be amended,
parties and claims can be added and deleted. It is sometimes necessary to file
suit quickly and fill in the gaps later. Amending the complaint usually requires
the opponents acquiescence or the judges permission. Agreement to amend
from the defendant will be hard to come by if the changes benefit the plaintiff,
so it is far better to get it right the first time if possible.
PREREQUISITES TO SUIT
Injured parties are not always free to fire off a lawsuit as their first offensive
move. There is a category of suits, usually involving situations that come
under the regulation of some government agency, in which the aggrieved
party must first exhaust administrative remedies. Injured employees covered by workers compensation laws, for example, are usually prohibited
from suing their employer; they must instead apply for compensation from
the workers compensation fund. Resort to the courts is possible only after
the applicable state agency has made its decision. Claims involving illegal
discrimination often must first be brought to the Equal Employment Opportunity Commission or other administrative agency having jurisdiction;
the agency in question must investigate and give permission before the aggrieved party can sue.
Suits against government agencies and departments are particularly demanding of careful pre-suit planning. Historically, the government was immune from suit altogether. Although this absolute sovereign immunity no
longer applies, vestiges remain in the form of statutes that require anyone intending to sue an agency of the government to give notice of his or her claim
before filing suit. Prerequisites for suit against the federal government are
found in the Federal Tort Claims Act. State, county, and city requirements, if
any, vary from place to place. Notices of claims must be in the correct form
and delivered to the correct government official within the allowed time period, which is typically short. Often, even a seemingly trivial defect in the notice will cause the suit to be dismissed, perhaps forever. If Shannon sues the
Las Vegas Police Department for false arrest, her lawyer will need to comply
carefully with any notice of claim requirement.
These examples are intended as a small sample of the kinds of prerequisites to suit that may exist. Obviously, it is impossible to provide an exhaustive list, because each case presents its own factual problems. But the attorneys defending the suit will be combing the facts in search of any basis on
which to get the case dismissed quickly, so the prudent plaintiffs attorney will
do everything possible to avoid giving the defense any ammunition.
Putting It
Into Practice:
Why might a commercial
litigator find it difficult to
represent an employee
alleging discrimination?
50
CHAPTER 3
SETTLEMENT NEGOTIATIONS
Putting It
Into Practice:
Would this be an
appropriate time for
Shannon to offer to
settle with the hotel?
A reasonable settlement is almost always better than a lawsuit, even for the
winner of the lawsuit. Litigation is expensive and time consuming and distracts the litigants from their regular pursuits, and the emotional toll can be
devastating. Filing a lawsuit tends to cause a degree of polarization of the parties that may make settlement more difficult; hence, if any possibility of settlement exists, it should be explored before suit is filed unless there are strong
strategic reasons not to. Even if settlement is not feasible, it may be to the benefit of both parties to consider some form of alternative dispute resolution,
such as arbitration or mediation.
One way of initiating settlement negotiations is through the use of a demand letter. Pre-suit demand letters are routinely used in auto accident cases
and other tort suits where insurance companies will be calling the shots on the
defense side.
In multiparty disputes, pre-suit settlement takes on another dimension:
Parties may find it advantageous to settle with one potentially adverse party,
so as to be able to join forces against a third. This is particularly common
among codefendants. For example, even though Banbury Park Hotel has a potential claim against its negligent employee, Arnie Trevayne, the hotels
lawyers will certainly reach some accommodation with Arnie. Otherwise, he
might decide to settle separately with Shannon, and testify in her favor. For
this reason, employees who subject their employers to lawsuits often enjoy
great job securityat least until the suit is over!
OTHER CONSIDERATIONS
Proper technical preparation is not, of course, an excuse for procrastination. In
most cases, the need for pre-suit preparation must be balanced against the need
to maintain momentum. An opponent who carries out each task decisively and
CHAPTER 3
without delay will likely be taken as a more credible threat than one who is long
on talk but short on action. Another possible reason for speed in filing is to preempt action by the other party. With many disputes, suit could be brought by either party. In our hypothetical situation, we have been assuming that Shannon
would file suit first. But it is equally likely that some other partyDr. Collins, for
examplemay get to the courthouse ahead of Shannon, if for no other reason
than to seize the initiative in deciding which court to litigate in.
51
Putting It
Into Practice:
On what grounds could
Dr. Collins sue? What
damages could he allege?
Putting It
Into Practice:
If you worked as a
paralegal for Allen Porter,
how could you assist at
this stage of Shannons
case?
52
Putting It
Into Practice:
With the facts as you now
know them, what
potential claims exist in
this case? Evaluate the
pros and cons of each
claim.
CHAPTER 3
have your testimony that you checked the door, twice. There isnt any other plausible explanation for how Dr. Collins got into your room.
Shannon considered the lawyers words in silence. Porter summed up:
So, bottom line, my advice is to go ahead and file suit against Dr. Collins and
the hotel. We can do that in federal court here in Phoenix.
S U I T P R E PA R AT I O N P H A S E :
PLEADINGS
The first formal activity in a lawsuit consists of a process called pleading,
which is intended to force all parties to specify, on the written record, exactly
what the dispute is about. This is done in turns: Plaintiff files a complaint, each
defendant files an answer to the complaint, and finally plaintiff files a reply to
any new claims (called counterclaims) made by any defendant against plaintiff. Defendants are also given an opportunity to make claims against each
other and against others who are not yet parties; see FRCP, Rules 711. When
complete, the pleadings frame the issues for the entire lawsuit; no party is allowed to delve into issues that are outside the scope of the pleadings.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
COMPLAINT
A civil lawsuit is begun by the plaintiff filing a complaint with an appropriate
court. The plaintiff is the party who starts the suit; the defendant is the party
being sued. The complaint is a formal, written statement in which the plaintiff
describes, in summary fashion, what the dispute is about, and what plaintiff
wants the court to do.
The statements in a pleading in which a party lays out his version of what
happened to cause the dispute are called allegations. It is customary for the allegations of a complaint to be organized in numbered paragraphs so that they
can be easily referred to in the answer and in other court papers. The complaint
ends with a prayer for relief, a concluding section stating specifically what
plaintiff wants the court to do (typically, award a money judgment for damages). The complaint is signed by plaintiffs attorney; see FRCP, Rule 11(a).
There can be more than one plaintiff in a lawsuit, but only one complaint.
How do you decide what allegations to put into a complaint, how to organize them, and how to express them? Good complaint drafting is an art; we
will consider it in detail in Workshop 5. For now, it suffices to say that the allegations must be sufficient to state a claim. To state a claim, the allegations
must include each of the elements of the cause of action for which plaintiff is
suing. Meaning what, exactly? (See sidebar.)
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53
SIDEBAR
Elements of a Cause of Action
What is a cause of action? The law does not impose liability for every offense. You can win a lawsuit against someone only if you prove that they did
something that the law recognizes as an actionable wrongthat is, they did
something that falls into one of the established categories of offenses for which
lawsuits are allowed.
How can you tell if a particular set of facts comprises one of the recognized
causes of action? By checking to see whether each of the elements of that cause
of action is satisfied. The elements of a cause of action are the specific things
that you must prove in order to win a lawsuit based on it. For example, the cause
of action for negligence has four elements: duty, breach of duty, causation, and
damages. Thus, to state a cause of action for negligence against Banbury Park
Hotel, Shannons complaint might allege that (1) the hotel had a duty to provide safe accommodations for guests; (2) the hotel breached that duty by knowingly allowing the room doors to fall into a poor state of repair so that they do
not close properly; (3) the hotels failure to maintain the doors properly caused
Shannon to be injured; and (4) Shannon was injured and lost money as a result.
If Shannon fails to prove each of those four things at trial, she loses as to the
negligence claim. Of course, if the facts can support claims based on other
causes of action, she can include those in her complaint tooeach cause of action is considered separately.
Being able to think of lawsuits as made up of separate claims or causes of
action, and of causes of action as being broken down into specific required elements, is a fundamental skill in litigation. Where do the elements of causes of
action come from? Mainly from case law: Appellate courts decide what is required. For a concise summary of the elements of the various tort causes of actions, a good place to start is the Restatement of Torts, which you can find in
any law library.
sheet or cover sheet to be filed with the complaint; this is typically a printed
form listing the names and addresses of the parties and their attorneys, telephone numbers, and other information needed by the clerks office. Other papers, such as statements of whether the case is subject to compulsory arbitration, may also be required.
The clerk of the court keeps the original, signed complaint to be placed in
the courts file. The person filing the complaint has brought additional copies,
which the clerk stamps and returns; these are for the plaintiffs lawyers file
and for delivery to each defendant. The clerk also issues summonses addressed to each defendant. A summons is a court order, usually a one-page
printed form completed by the plaintiff that the clerk signs and stamps, requiring each defendant to appear before the court and defend the suit; see
FRCP, Rule 4(ac).
Court papers are supplied to the involved parties via the service process.
A copy of the summons and complaint is served on each defendant. To serve
a paper on another party means to deliver it to them in a formal manner prescribed by the rules. As you can readily imagine, it is very important that each
defendant be notified that he has been sued, and it is equally important that
plaintiff be able to prove that each defendant was notified. The rules of procedure include detailed instructions on how process is to be served under a
variety of common circumstances. One method used in many courts is to have
Putting It
Into Practice:
What facts can Shannon
use to support her cause
of action?
54
CHAPTER 3
SIDEBAR
Captions
One format requirement found in all courts is the caption. The complaint,
and all other papers filed with the court, must begin with a caption, which is a
kind of title block that includes the name of the court, the names of the plaintiff
and defendant, and the case number. The caption also identifies what the paper is: complaint, answer, motion to dismiss, etc. The clerks office uses the caption to ensure that the paper goes to the right file. Each court has rules specifying caption format, spacing, and content. The caption of Shannons complaint
might look like this:
Plaintiff,
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation; DOES I through X;
BLACK CORPORATIONS I through V;
Defendants.
_______________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
NO. _____
COMPLAINT
(Why the John Does and the Black Corporations? See Workshop 5.)
someone locate each defendant and hand deliver the summons and complaint
in person; this is called personal service. (Personal service is not the only possible way to serve the summons and complaint; we will take up others in Chapter 4; see FRCP, Rule 4). The person who serves the summons and complaint
may be a sheriff or other government official, or, in many courts, the job is
done by a private process server, who makes a profession of locating parties
and witnesses and serving court papers on them. Courts that allow private
process servers often require them to be trained and licensed. However, see
FRCP, Rule 4(c)(2), which allows service by a noninterested party at least 18
years of age. After serving a copy of the summons and complaint on each defendant, the sheriff or process server signs and files an affidavit of service with
the court, which serves as proof that delivery was actually made. [In some jurisdictions, this affidavit may be called a return of service, and the specific
form and contents of the paper may vary, but the purpose is to establish the
fact of delivery in the court record; see FRCP, Rule 4(l).]
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 3
55
SIDEBAR
Court Papers
The complaint is the first of many papers that will be filed with the court
during the course of a lawsuit. (Papers filed with the court are sometimes referred to generically as pleadings, although, strictly speaking, the term pleadings includes only the complaint, answer, and replies to counterclaims or crossclaims, if any.) Each court has rules on the format of papers to be filed with the
court, and the clerk of the court will refuse to accept papers that are not in the
proper format. These rules may at times seem arbitrary, but when you remember that the clerks office in a busy urban court system is responsible for keeping
track of literally millions of pages of new filings each year, you can appreciate
the need for uniformity.
Putting It
Into Practice:
What format would
Shannon be required to
conform to if she filed suit
in your state?
How do you find out what format is required in a particular court? Check
the local rules for that court.
Putting It
Into Practice:
If Allen Porter asked you
to file Shannons
complaint and serve Dr.
Collins, how would you
do it in your state?
SIDEBAR
Affidavits
Often in the course of a lawsuit, you will find that you need a formal way
to establish some fact, without going to the expense and difficulty of scheduling
a hearing or a deposition and having a witness appear and give live testimony.
For example, the fact that the summons and complaint were served on each defendant must be established in the court record, but it would be impractical to
hold hearings and force judges to waste their time listening to process servers
testify that they delivered the required papers.
The solution is to use an affidavit. An affidavit is simply the sworn testimony of a witness, which has been written down and signed in the presence of
a notary public. It can be filed with the clerk of the court as a substitute for actual, live testimony of a witness in many routine situations. The rules of procedure specify under what circumstances affidavits may be used. For example, after the process server serves Shannons complaint on Dr. Collins, she will prepare
an affidavit of service and file it with the court, sending a copy to Shannons
attorney. The affidavit of service is a court paper, bearing the caption of the
case. Below the caption, the affidavit will state the facts to be establishedfor
example, that the process server has delivered a copy of the summons and complaint to Dr. Collins, in person, and specifying the time and place that this was
done, together with other important details. The process server must sign the affidavit under oath; as a practical matter, this is done by having the signature
notarized. Just as the laws against perjury prohibit a witness from lying under
oath in a courtroom proceeding, giving false testimony in a notarized affidavit
is a criminal offense.
Putting It
Into Practice:
If Dr. Collins claims he
was not served, how
would you verify service?
56
CHAPTER 3
costs of service at the conclusion of the lawsuit [should the opposing party refuse to voluntarily accept service; see FRCP, Rule 4 (d).]
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
ANSWER
Each defendant receives a copy of the summons and complaint. Under the
federal rules and in many state courts, the summons orders a defendant who
is personally served to appear and defend within twenty days; see FRCP,
Rule 12. The time period may be longer if the defendant was served in a different state than the one in which suit was brought.
What does it mean to appear and defend? The phrase is perhaps somewhat misleading, and people with little experience in the legal arena often, after being served with a summons, show up at the courthouse on the twentieth
day and ask where they are supposed to appear!
The term appear is one of those ordinary words that has a legal meaning
different from its everyday meaning. As used in the summons, appear means
to submit formally to the jurisdiction of the court. Ordinarily, this is done by
filing an answer to the complaint. (A motion to dismiss is another possibility,
but we will reserve that level of complexity for a later chapter.)
An answer is a pleading, similar in appearance and content to the complaint, in which the defendant gives his side of the story. In the answer, the defendant must admit or deny the allegations of the complaint, and may add any
factual allegations that defendant thinks plaintiff has omitted. Usually, this is
done by responding to each of the numbered paragraphs of the complaint. We
will take a detailed look at how answers are constructed in Workshop 8.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 3
The answer is also the place where the defendant can raise any claims
against the plaintiff or against third parties. Often, the best defense is a good offense; it is an unusual dispute in which the defendant cannot think of some reason why the plaintiff is really the one at fault. Any defendant may include counterclaims in her answer; a counterclaim is, in effect, a lawsuit by the defendant
against the plaintiff. The allegations of a counterclaim are written in the same way
as if the defendant were preparing a complaint against the plaintiff. The answer
may also include cross-claimsclaims by one defendant against another defendant. In our hypo, for example, Dr. Collins will counterclaim against Shannon for
battery and crossclaim against the hotel for negligence; see FRCP, Rule 13.
If the defendant believes that there is someone whom plaintiff has not
sued who should be involved, defendant may also bring third-party claims,
which are the equivalent of defendant suing someone else. Suppose, for example that Shannon sued Dr. Collins but did not include the hotel as a defendant in the suit. Dr. Collins could bring the hotel into the suit and make his
claims against the hotel via a third-party claim. Typically, he would do this by
filing and serving (on the hotel) a third-party complaint, following rules similar to those that apply to plaintiffs complaint; see FRCP, Rule 4.
57
Putting It
Into Practice:
Might the hotel have any
potential counterclaims?
Any cross-claims? If
Shannon sued the hotel
only, what response
would you anticipate
from the hotel?
To the extent that they involve similar issues, all of these counterclaims,
cross-claims, and third-party claims will be decided in a single lawsuit. The
judge can sever, or split off for separate decision, claims that are not sufficiently related to the original suit; see FRCP, Rule 42.
Putting It
Into Practice:
If you were responsible for
filing Dr. Collinss answer
to Shannons complaint,
how would you do it in
your state? How would
your handling of
Shannons complaint
differ from your handling
of Dr. Collinss answer?
Putting It
Into Practice:
If you wanted to
determine the deadline
for Dr. Collinss answer,
where would you look?
58
CHAPTER 3
SIDEBAR
Forms
Where do court papers come from? Usually, the lawyers or paralegals in the
case write them, and they are typed and printed by a secretary or word processing clerk.
In your work as a paralegal, you will often hear lawyers speak of using a
form complaint or other pleading or court paper. When we speak of forms
in a law office, we usually do not mean preprinted forms in the sense of, for example, IRS tax forms, in which we simply fill in the blanks. Generally, the complaint, answer, and other court papers are prepared by the parties or their
lawyers from scratch and preprinted forms are not used. There are exceptions:
Printed forms are often used in small claims courts; in certain highly systematized practices such as debt collection; and in most offices for certain routine,
one-page clerical items such as subpoenas, praecipes (instructions to the court
clerk) and summonses.
When a lawyer speaks of, for example, a form complaint, she is usually
referring to a copy of a complaint that was filed in some other, similar case.
Parts of the form may be cut and pasted into the rough draft of the current
project; other parts may be modified or merely used as a guide. In a modern
computerized office, many form documents are kept in word processing files
so that they can be easily modified without retyping the entire document. Thus,
when Chuck Fletcher drafts Shannons complaint, he will likely begin with a
form complaint from some other tort case in the office and modify the language to fit Shannons situation. This prevents lawyers from having to reinvent
the wheel at their clients expense and also serves as a kind of checklist to reduce
the chance that some important allegation may be forgotten.
A good, complete form file is a valuable tool for a litigator and for a litigation paralegal. Even if your employer maintains an office form file, as most do,
we strongly recommend that you build and maintain your own as well. When
you draft a new type of document or when you see a well-drafted one prepared
by someone else (even an opponent!) make a copy, and add it to your file.
Putting It
Into Practice:
What are the possible
consequences of
incorrectly calculating a
filing date and filing
papers after the legally
required time?
CHAPTER 3
59
REPLY
Because any defendants answer can include counterclaims against the plaintiff, there has to be a mechanism whereby plaintiff can respond to the allegations in the counterclaims. That mechanism is the reply. A reply is exactly like
an answer, except that it is made by plaintiff in response to a defendants counterclaims. You might suppose that the defendant would then respond to what
plaintiff says in the reply, but modern practice cuts off the exchange of allegations and counterallegations with the reply, mainly because otherwise the
pleading phase might never end! See FRCP, Rules 7 and 12.
Putting It
Into Practice:
Who might file a reply in
Shannons case?
CHOICE OF FORUM
More often than you might expect, the outcome of a lawsuit will depend on
who ultimately decides it. Judges and juries are people, and they have as many
biases and preconceived ideas as the rest of us. Different courts have different
procedural rules. Simply moving a case to the courts of another state may also
result in quite different substantive law being applied. Case backlogs can differ greatly; a plaintiff will usually prefer a court in which cases reach trial
quickly (say, a year), whereas a defendant will often prefer a court in which the
caseload is so great that several years may pass before trial.
The particular court that a case proceeds in is called the forum for deciding that case. Initially, plaintiff chooses the forum by choosing the court in
which to file the complaint. As you might guess, however, there are procedural
moves a defendant can make to try to move the case to a different forum, hopefully one more favorable to defendant.
If, for example, the case is filed in state court, and the circumstances are
such that it could have been filed in federal court, defendant may have the right
to remove the case to federal court. If the defendant can convince the current
court that it lacks jurisdiction or that venue is improper, or that the case is really more closely connected with some other state and ought to be decided
there, the court may dismiss the case, forcing plaintiff to file elsewhere. We take
up these subjects in detail in Workshop 2.
Okay, what is it, Chuck? Allen Porter asked after Shannon left. I can
tell theres something bothering you about this.
Well, as a matter of factI didnt want to bring it up in front of the client,
butyou told her we could file suit in federal court here in Phoenix. And,
Chuck paused, thinking, I just dont see how you can get personal jurisdiction over Dr. Collins in Arizona. Doesnt this case have to be filed in
Nevada?
Thats quick thinking! Porter replied. I was wondering whether youd
pick up on that. Youre right, of course. We can sue the Park Hotels Group here
in Arizona, because they do business herethey own the Montezuma Park
Hotel in Scottsdalebut there is no basis for personal jurisdiction over Dr.
Collins, as far as I know.
So
I raised the matter with Dr. Collinss attorney in Dallas, and he decided
that he would just as soon litigate this in Arizona as in Nevada, so theyre willing to consent to jurisdiction here.
JOINDER OF ISSUE
In a simple case, there may be a single plaintiff suing one or a few defendants.
The only pleadings may be the complaint and an answer filed by all defendants
jointly. In more complex cases, there may be several plaintiffs who join in suing
Putting It
Into Practice:
What court in your state
would be most favorable
for Shannon to file in?
60
Putting It
Into Practice:
If Allen Porter is a busy
litigator, why might he be
relieved to experience a
delay in having the issue
joined?
CHAPTER 3
Putting It
Into Practice:
Would it be ethically
proper for Shannon to sue
Dr. Collins based on the
facts as she understands
them at the time she goes
to see Allen Porter?
ETHICAL ETIQUETTE
CHAPTER 3
E T H I C A L E T I Q U E T T E continued
In addition to being censured for
committing ethical violations,
attorneys who bring frivolous suits
can be sanctioned under FRCP, Rule
11. Rule 11 requires that complaints be
well grounded in fact and warranted
by existing law or a good faith
argument for the extension,
modification, or reversal of existing
law and that they not be filed for any
improper purpose, such as to harass
or to cause unnecessary delay or
needless increase in the cost of
litigation. Violation of this rule may
PRACTICE POINTERS
Obtaining Documentary Evidence
Documents are critical to establishing the factual elements of a case and
the responsibility for obtaining these documents is often relegated to legal assistants. Most documentary evidence can be obtained by sending a letter requesting the document. These letters are fairly straightforward (identifying the
need for the document and what specific documents are needed), but be careful to phrase your request with sufficient specificity that the individual holding
the document will understand what is being requested. With medical doctors,
for example, you need to specify whether you need the doctors notes or her
narrative report outlining the patients treatment and prognosis.
Because medical and employment records are confidential, you need
the client to sign a written authorization before the doctors office or employer will release any records. Although most firms have standard release
forms, check the form before using it to make sure it provides everything
that you need. Having clients sign several authorization forms in advance
prevents them from having to return to the office every time an authorization is needed. Because some institutions require authorizations to be notarized, you may save time by having them all notarized at once.
Before requesting records from any institution, contact them first to see
what procedures they require. Find out, for example, if any fees are charged
and if those fees must be paid before the records can be released. Many doctors charge nominal fees for their notes and several hundred dollars for their
narrative reports.
Once you receive records, review them immediately to ensure that you
can read any handwritten entries and that you understand any abbreviations
or shorthand notations. Clarifying any ambiguities in advance may save time
later, prevent misunderstandings, or open up new avenues of investigation.
Treat each new document you receive as a potential smoking gun that is
critical in winning the case. With this attitude you will be less tempted to procrastinate in your review of records.
61
62
CHAPTER 3
TECHNO TIP
When preparing a complaint or other
pleading from your forms file do not
merely copy it to a new file. Paste the
entire document to your clipboard,
create a new document with your
word processor, and then copy the
pleading into the new document. When
you use the save as or similar function to reproduce a document, any
S U M M A RY
During the initial interview the attorney attempts to get enough information to
assess whether a potential lawsuit exists, whether any conflicts of interest prevent him from taking the case, and whether the case falls within the range of
his expertise. Having decided to take the case, the attorney does as much investigation as possible before filing suit. Doing so ensures that the attorney
has a reasonable basis for believing that the claims made are factually and
legally well grounded and minimizes the pressure to meet disclosure and other
procedural deadlines after the suit has been filed. On the other hand, the
prompt filing of suit can give the plaintiff more credibility as a viable threat and
can preempt action by the opponent. When preparing to file a suit, the attorney must decide whom to sue, what claims to allege, which court to sue in, and
what relief to request. Although most of these decisions can be amended at a
later date, the plaintiff benefits from making the optimal decision up front.
Plaintiffs filing suit against administrative agencies must first exhaust their
administrative remedies. Before filing suit against a governmental entity the
plaintiff must check to make sure that the entity is not protected by sovereign
immunity and that any prerequisites to filing suit have been satisfied. Attorneys
should contact others involved in a dispute before suit is filed in order to obtain statements and get information because once the complaint is filed attorneys are precluded from making direct contact with opposing parties.
Reaching a settlement agreement is almost always better than filing a lawsuit because of the time and expense entailed in a lawsuit and because of the
emotional toll litigation exacts on its participants. Because filing suit often further polarizes parties, settlement should be attempted before suit is filed. Settlement negotiations include the use of demand letters and, when multiple parties are involved, settlement with only one of the parties.
Legal assistants assist in the pretrial phase of litigation by interviewing
prospective clients, by ensuring that all tasks germane to filing suit are completed, and by making sure that no details are overlooked.
A lawsuit begins with the filing of pleadings, which include the complaint
filed by the plaintiff, the answer filed by the defendant, and the reply filed by
the plaintiff. Parties are not allowed to explore issues outside the framework
of the pleadings. The allegations of the complaint must state a claim by establishing all elements of the cause of action. To prevail, the plaintiff must
prove each of these elements. In addition to allegations, the complaint must
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63
begin with a caption and end with a prayer for relief. Many jurisdictions require the complaint to be accompanied by a cover or information sheet. The
clerk of the court keeps the original complaint, stamps the copy that is sent to
the defendant, and issues a summons to the defendant. The complaint and
summons is then served on the defendant by the process server or sheriff,
who is required to file an affidavit of return of service with the court after delivery is completed. Parties can agree to waive formal service of process.
Under the federal rules, defendants typically must file an answer within
twenty days of having received service. In the answer the defendant can either
admit or deny allegations made by the plaintiff, add factual allegations, raise
affirmative defenses, or include counterclaims or cross-claims. Defendants
can also bring third-party claims against defendants whom the plaintiff has not
sued. Judges who believe that any claim is not sufficiently related to the remainder of the suit have the option of severing that claim. Plaintiffs have the
opportunity to reply to counterclaims. All court papers other than the complaint can be mailed or delivered to the opposing party; they do not require
formal service. If the defendant fails to answer, a default judgment may be entered in the plaintiffs favor. Trial cannot be set until the issues are joined.
Plaintiffs choose their forum based on several considerations: the procedural rules and substantive law that are applied in that court, the backlog, and
the predispositions of the judges in that court. Defendants have an opportunity to remove cases to another court if they can prove that the court chosen
by the plaintiff lacks jurisdiction, if venue is improper, or there is some other
compelling reason another court should hear the case.
KEY TERMS
Actionable wrong
Affidavit
Affidavit of service
Affirmative defense
Allegation
Answer
Appear
Caption
Cause of action
Complaint
Counterclaim
Cross-claim
Default judgment
Element
Forum
Issue has been joined
Personal service
Praecipe
Prayer for relief
Process server
Removal
Reply
Return of service
Service
Sever
Sovereign immunity
State a claim
Summons
Third-party claim
Third-party complaint
Workshop Alert
The following workshops correlate well with this chapter and you would be well advised to work with them.
Workshop 1
Workshop 2
Workshop 3
Workshop 4
Workshop 5
Workshop 6
Workshop 7
Workshop 8
64
CHAPTER 3
REVIEW QUESTIONS
1. What type of information does an attorney try
to elicit from a potential client during the initial
interview?
2. What minimal information is necessary to draft
a complaint?
3. Why is it important to investigate a case substantially before filing suit? On the other hand,
why should a party avoid procrastinating when
filing suit?
4. What types of strategic decisions must be made
when filing suit?
5. In what situations is a party required to exhaust administrative remedies?
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
CHAPTER 3
(Answers in Appendix A)
65
MULTIPLE CHOICE
c. a and b.
d. There is no advantage to filing suit quickly.
5. Pleadings include
a. replies.
b. answers.
c. complaints.
d. all of the above.
6. A defendant has the option of
a. filing cross-claims but not third-party
claims.
b. raising affirmative defenses and moving to
dismiss.
c. admitting or denying allegations but not
adding allegations.
d. filing counterclaims against other defendants.
7. Formal service is required for the serving of
a.
b.
c.
d.
complaints.
answers.
counterclaims.
all of the above.
with a _______________ .
66
CHAPTER 3
TRUE OR FALSE
26. The federal rules of civil procedure require only
that an attorney have some basis, however minimal, for believing that the claims being made
are well grounded.
T F
27. A good attorney gets as little information as
possible before filing a lawsuit.
T F
28. Complaints cannot be amended once they are
filed.
T F
29. If a plaintiff wants to file suit against an administrative agency, she must first exhaust her administrative remedies.
T F
30. A claim against a governmental agency can be
dismissed if it is not in the correct form or if it
is delivered to the wrong government official.
T F
31. An attorney always has the right to make direct
contact with the opposing party.
T F
32. Attorneys should try to contact opposing parties in a suit before suit is filed.
T F
33. Insurance companies usually get statements
from all parties and witnesses before suit is
filed.
T F
34. When multiple parties are involved, the plaintiff
may find it advantageous to settle with one of
the defendants before filing suit.
T F
35. The first party to file suit has the advantage of
being able to choose the forum in which to sue.
T F
CHAPTER 3
47. In an answer to a complaint a defendant may admit or deny allegations but may not add factual
allegations.
T F
48. A defendant can raise cross-claims against the
plaintiff.
T F
49. Third-party claims allow the defendant to bring
new defendants into a lawsuit.
T F
50. Plaintiffs rarely win by obtaining a default judgment in their favor.
T F
51. Defendants have an opportunity to respond to
the plaintiffs reply.
T F
52. The choice of forum usually has little effect on
the outcome of a case.
T F
67
LITIGATION LINGO
(Answers in Appendix A)
Unscramble the letters to form the word described.
1. TINMOCPAL
2. TULAFED
3. PYLER
4. SAGELTNLOAI
5. TONCIPA
6. EVICRES
Delivery of complaint
7. VEROMLA
Change of court
8. DITAFIFVA
9. NGOSREVIE
_______________ immunity
10. ADNMED
11. NIJODE
12. SROCS
13. EFRIMFAVITA
Type of defense
14. UMROF
15. YRERAP
16. LEMTENES
17. REWNSA
18. PEAPAR
19. LIAMCNTREOCU
20. MUSSONM
68
CHAPTER 3
LITIGATION LOGISTICS
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
3.
4.
5.
CHAPTER 3
69
PROCEDURAL PONDERABLES
1.
2.
CHAPTER
ROAD MAP
OF A LAWSUIT:
DISCOVERY
OBJECTIVES
In this chapter you will learn:
What discovery is and how litigators
gather evidence
What a deposition is
What interrogatories, requests for
72
CHAPTER 4
hypothetical
CHAPTER 4
can be used at trial. The second involves pretrial motions. Any party can, by
filing a motion, ask the judge to settle pertinent questions about the substantive law that applies to the case; to decide procedural disputes; or, in appropriate situations, to render a final decision disposing of all or part of the case.
After these two activities are well under way, the litigants begin to carry out
the necessary procedures to get an actual trial date scheduled on the courts
trial calendar, a task that we will leave for Chapter 5.
D I S C O V E RY
Ultimately, trials are decided on the basis of evidence. Evidence is the factual information about the dispute that is presented to the judge or jury. In civil suits,
evidence consists mainly of two things: The first is the testimony of witnesses,
who appear in person and answer questions about what they have seen or done.
The second is documentary evidencepapers. These are presented as exhibits,
shown to the jury, and made a part of the trial record. Complex rules (which we
do not present here since they are properly the subject of a separate course on
evidence) are applied to decide what documents and testimony will be admitted in evidence. When we say that evidence has been admitted, we mean that
the judge has ruled that it may be made a part of the record and considered in
reaching a decision in the case. The judge will excluderejectevidence that
is not admissible under the rules of evidence. The judgenot the jurymakes
all decisions about what evidence will be admitted.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Where does all this evidence come from? You might suppose that plaintiff
would be required to have his evidence ready before filing suitpeople should
not be allowed to bring lawsuits based on evidence they do not have, should they?
In practice, things are rarely that simple, as our hypo illustrates. The problem is that, by the time a dispute blossoms into a lawsuit, each side has possession of some of the evidence or information that is critical to the other
sides case. Few suits could go forward without some means of prying evidence away from opposing parties. Then, there is the problem of obtaining evidence from third parties (like Arnie Trevayne, our hypothetical hotel clerk)
who may not wish to cooperate.
In our hypo, for example, defense attorneys for the hotel and Dr. Collins
will certainly need access to Shannons medical recordsthe amount of
Shannons damages will be in dispute, and the defense attorneys will want
to verify the extent of her injuries and seek their own doctors opinions
about them. Shannon will need to obtain information and records from the
hotel about the maintenance of the doors and locks. These are but a few examplesin practice, the attorneys for all three parties will likely spend
many hours on discovery involving scores if not hundreds of factual issues
and subissues.
And what does a party do about the opposing partys evidence? Does each
party go to trial blind, without any knowledge of what evidence the other
party will present? Would you want to cross-examine, say, Arnie Trevayne, at
trial, in front of the jury, with your entire case possibly riding on his testimony,
without having any idea what he may say? How would you prepare?
73
74
CHAPTER 4
Putting It
Into Practice:
What do you think should
happen when a party
knows of evidence that is
damaging to her own
case and of which the
opposing party is not
aware? Should disclosure
be required?
Here we briefly summarize the main tools available for obtaining evidence;
we will cover specific discovery procedures in detail in later chapters. Before
we begin, it is worth mentioning that discovery is an evolving area of procedural law in which the rules are still undergoing development and change. For
several decades beginning in the 1940s and 1950s, discovery was entirely an
adversary process, in which the party seeking evidence had to take affirmative
steps to demand specific information from the opposing party. Nowadays, although the adversary procedures remain in place to be used when necessary,
many courts are experimenting with mandatory disclosure rules, under which
a party in possession of evidence is required to disclose it to the opposing
party, even without being asked to. These disclosure rules have created still
another arena for procedural maneuvering, one in which the details are not yet
settled. We address mandatory disclosure rules in detail in Workshop 11, because they appear to represent an important trend.
The principal discovery mechanisms authorized by the rules of procedure
are depositions of witnesses (see FRCP, Rules 27, 28, 30, and 31), written interrogatories to parties (see FRCP, Rule 33), requests for production or inspection of documents and things (see FRCP, Rule 34), requests for medical examinations of a party whose medical condition is an issue in the suit (see
FRCP, Rule 35), and requests for admissions of facts (see FRCP, Rule 36).
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 4
DEPOSITIONS
Much of the evidence at a trial is presented in the form of live testimony: Witnesses are called to the stand and examined, or questioned, by the lawyers
for both sides. For the lawyer preparing for trial, it would be handy to be able
to question the opposing partys witnesses ahead of time. It would be especially useful to be able to have the witnesses answers recorded, so as to make
it more difficult for the witness to change his story later. How can this be accomplished?
The rules of civil procedure allow any party to a lawsuit to take depositions (see FRCP, Rule 30). A deposition is a discovery procedure in which a witness is required to appear at a specified place and time (usually long before
trial) to answer questions. Most often, a deposition is held in a conference
room at the office of the lawyer who will do the questioning. Lawyers for the
opposing parties also appear, and can make objections; see FRCP, Rule 30(c).
A court reporter is present to administer the oath to the witness and to take
down in shorthand (typically using a computerized shorthand machine) every
word that is saidquestions, answers, and objections. The court reporter will
later prepare a written transcript of the testimony, which is a printed or typewritten booklet containing every word said by anyone during the deposition.
The judge is not present; any disputes or objections requiring the attention of
the judge can be ruled on later, based on the written transcript.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
75
76
Putting It
Into Practice:
Whom do you think Allen
Porter should depose and
why?
CHAPTER 4
Putting It
Into Practice:
How far do you think
lawyers should be allowed
to go in advising clients
about how to answer
deposition questions?
What is the penalty for a
witness who lies in a
deposition? For a lawyer
who allows a client to do
so? What should the
penalty be?
Arnie Trevayne had obviously been well coached before the deposition.
That was expectedAllen Porter habitually did the same with his own
clients, going over possible questions, listening to the answers, instructing
them over and over, listen to the question, answer it, and stopdont volunteer information.
So far, Arnie hadnt given away much. Porter looked around the conference room, and glanced at the court reporter who was waiting expectantly,
fingers poised over her shorthand machine, then at Gail Stoddard, the lawyer
representing the hotel. Finally he looked at Arnie, waiting for him to make
eye contact, then resumed the questioning.
Dr. Collins testified at his deposition that he took the key you gave him,
inserted it in the lock of Room 407, turned the key, and opened the door. Do
you have any idea how that could be?
Beats me.
Did you give him a key to Room 407?
407? Of course not.
What key did you give him?
The key to his room, 409.
Is there any way you can think of that the key to 409 could have opened
the door to Room 407?
Sureif she left the door unlocked.
Isnt it true that the doors are old, and they dont always close all the way?
Not that I know of.
Have you ever told anyone that the doors are old and they dont always
close all the way?
Arnie frowned, as if in deep thought, then answered. No.
Didnt you tell Chuck Fletcher, who is seated here to my left, that the
doors are old and they dont close all the way?
Not that I remember.
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77
WRITTEN INTERROGATORIES
Written interrogatories are written questions directed to one of the other parties. Instead of requiring an in-person appearance to answer questions orally, the
questions are submitted in writing. It is customary to prepare interrogatories in
the form of a court paper, with a caption, and (traditionally) leaving space after
each question for the answer to be written or typed. The interrogatories are
served on the party whose answers are desired, usually by mailing or delivering
them to the partys attorney. The process of preparing written interrogatories
and submitting them to another party to be answered is called propounding interrogatories; the party who is asking the questions is the propounding party
and the party who is required to answer them is the responding party.
The responding party has a limited time, normally thirty or forty days
[thirty days in federal court; (see FRCP, Rule 30(b)] in which to answer the
questions in writing and serve the answers on the propounding party. (As with
most discovery procedures, voluntary extensions of time are commonplace.)
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
How might Allen Porter
use interrogatories in
Shannons case?
78
Putting It
Into Practice:
How might Allen Porter
use a request for
production in Shannons
case?
CHAPTER 4
see the document itself. Two procedures are available for compelling someone to turn over documents.
The first is called a request for production of documents and things (often abbreviated to simply request for production). A request for production is a court paper, prepared by the requesting party and served on the responding party, which is the party from whom the documents are requested.
The request for production will specify a time and place at which the responding party must appear and produce documents, and will include a list
of the documents being asked for. In practice, the responding party usually
does not actually show up at the appointed hour with documents in hand;
instead, copies are mailed or delivered. The responding party must also file
a written responseanother court paperstating what items have been
produced, which items are not in her control, and objecting to any parts of
the request that may call for items that the requesting party is not entitled
to discover.
Requests for production can only be used to obtain documents from other
parties to the suit. What happens if you need documents from someone who is
not a party? You can obtain them using a subpoena duces tecum. A subpoena
duces tecum is a subpoena that, in addition to ordering a witness to appear,
also orders the witness to bring with you (duces tecum in Latin) specific
listed documents or things. Again, in practice, the usual way to comply with a
subpoena duces tecum is to mail or deliver copies.
Both requests for production and subpoenas duces tecum can also be used
to obtain physical objects other than documents when necessary. A closely related procedurethe request for entry upon land for inspectionis used to
obtain entry to a location (an accident site, for example) that is under another
partys control.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 4
Chuck thought for a moment. So then, how do you explain Dr. Collinss
testimony that the key turned in the lock?
I think you were right the first time. Dr. Collins had a key to 407.
But you just said that the keys
What if somebody switched them?
But theyve been in police custody, right? Surely the police wouldnt
have any reason. . . .
Not the police. How about one of the hotel people, covering up a mistake?
Why would someone whom we are suing want to help us by admitting facts
that we need in order to prove our case? Why would our opponent not simply
deny everything and make us prove each fact on our own? The rules impose a
penalty on litigants who refuse to admit facts that are not genuinely in dispute.
Returning to our hypo, suppose Allen Porter serves a request for admissions asking Park Hotels and Dr. Collins to admit that the medical bills in question are genuine, medically necessary, and related to Shannons broken finger, and that they
total to a specified sum of money. If Park Hotels and Dr. Collins refuse to admit
these facts, and Allen Porter goes on and proves them the hard way, FRCP, Rule
37(c)(2), allows Shannon to ask the judge to assess the reasonable expenses of
making that proofincluding her attorneys feesagainst Park Hotels and Dr.
Collins. The judge would be required by Rule 37 to grant Shannons request unless he or she finds that the facts in question were reasonably in dispute or that
there were other legitimate reasons for denying the request for admissions.
Requests for admissions can sometimes be used to nail down substantive issues as well as technical or clerical ones. For example, Shannon could
79
80
CHAPTER 4
conceivably try to establish the causation element of her claim for battery
against Dr. Collins by requesting that both defendants admit that her injuries
were caused by Dr. Collins physical contact. As a practical matter, however,
admissions of this kind are usually not very helpful, since they relate to facts
that will be obvious when the main witnesses tell their stories.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
Suppose Shannon claims
ongoing anxiety attacks
as a result of her
confrontation with Dr.
Collins. How will the hotel
likely test the validity of
her claims?
CHAPTER 4
I dont get it. You just let him talk and talk. You didnt ask him anything
about giving Dr. Collins my room key, or about switching the keys. He didnt
admit anything at all. Shannon had just finished reading the completed transcript of the deposition of Arnie Trevayne, the desk clerk.
Allen Porter smiled. This isnt L.A. Law. People dont usually break
down and confess at depositions. Even if he had wanted to, his lawyer would
have stopped him. Anyway, that isnt the purpose of depositions.
Shannon was not satisfied. Then what is the purpose?
Porter leaned back in his executive chair and took a sip of coffee before
answering. There were several purposes. One is to get his story on the
record so he cant change it later. The more he talks, the better, it just gives
us more ammunition to use at trial. Thats why I always begin a deposition
by encouraging the witness to tell his story in his own words. Another purpose
is to get a chance to see what kind of witness hell make. I thought he seemed
kind of easily provoked, didnt you, Chuck? I might try pushing his buttons a
little at trial, if this thing doesnt settle before then.
Chuck nodded in agreement. Porter looked at Shannon and continued,
Also, you notice he lied about saying that the doors didnt close right, as the
hotels lawyers will be finding out right about nowwe mailed out our
mandatory disclosure statement yesterday, and we had to disclose the conversation with Chuck, of course. Well have some fun watching them try to
scramble out of that one.
81
82
Putting It
Into Practice:
Suppose Arnie Trevayne
admits to the hotel
lawyers that he gave Dr.
Collins the wrong key.
Under the discovery rules
in your state, must the
lawyer disclose this
information? Is the lawyer
ethically obligated to
disclose this information?
CHAPTER 4
In most cases, any competent litigator (or litigation paralegal!) would have
propounded interrogatories asking for all the same categories of information
as those called for by the mandatory disclosure rules, so the rules do not
change the end result very much. Mandatory disclosure can, however, create
some knotty ethical dilemmas, pitting a lawyers duty to disclose against the
clients expectation that information given to the lawyer will be held in confidence and kept private. Mandatory disclosure rules also lend some potentially
new strategic dimensions, since the punishment for failing to disclose can be
severe, especially if shown to have been deliberate. We will take up mandatory
disclosure and its various ramifications in detail in Workshop 12.
ENFORCEMENT
The motivations underlying the discovery process are simple: Each party tries
to find out about any good evidence that will help win the case and prefers
that any bad evidence remain hidden. Thus it is not uncommon, for example, to receive answers to interrogatories in which some of the crucial questions are inadvertently skipped or answered evasively or incompletely. Parties may fail to show up for depositions. Responses to requests for production
of documents may omit a few documents that the requesting party knows
should existor the responding party may deliver a huge quantity of documents, making it difficult to find the ones actually requested. Parties may even
answer discovery requests untruthfully.
The discovery rules must have teeth if the process is to work, and they
do. If a party fails to respond to a discovery request, or responds incompletely
or evasively, the requesting party can ask the judge to intervene via an appropriate discovery motion. We take up the subject of discovery motions in the
next chapter; see FRCP, Rule 37.
Underlying the discovery rules is the supposition that the evidence we are trying to obtain would not be given voluntarily. There is, of course, nothing whatever to prevent attorneys from gathering evidence by other means to the extent they can lawfully do so. There is no need, for example, to take depositions
of cooperative witnesses (except to preserve testimony if there is a risk that
the witness cannot be produced at trial). It may be better, cheaper, and less revealing to your opponent if you simply talk to a witness informally or take a
tape-recorded statement. Many documents can be obtained from sources
other than an opposing party. Private investigators and paralegals can be employed to ferret out some kinds of information.
Do not become so immersed in the discovery rules that you overlook
these informal ways of obtaining evidence. One thing you can be sure of is that
any piece of evidence that shows up in a discovery response has been thought
about, thoroughly massaged, and defanged if possible, long before it gets to
you. Thinking up ways to get important bits of evidence without the opposing
party having to be involved is a great way for paralegals to be noticed (always
with the responsible attorneys permission, of course).
CHAPTER 4
ROLE
OF THE
PA R A L E G A L
ETHICAL ETIQUETTE
83
Putting It
Into Practice:
What do you imagine you
would be doing if you
were assigned to help
with the discovery in
Shannons case?
84
CHAPTER 4
PRACTICE POINTERS
Working File
A working file is similar to a trial notebook, but it is prepared for your own
reference. You should take it with you to every meeting and to every out-ofthe-office assignment relating to the referenced case. Begin assembling this
file as soon as the client is accepted. Some of the items this file should contain
include the following:
Personal notes from client and witness interviews and investigative research
Witness directory (names, phone numbers, and addresses of witnesses
along with notes)
Case memorandum (information about client, facts, causes of action, legal issues, and discovery plan)
Central index (see Practice Pointer in Chapter 5)
Pleadings index (listing pleadings and relevant dates)
Discovery index (listing documents and relevant dates)
Deposition schedule (identifying who has been deposed, who the court
reporter was, and whether the transcript is available and has been
summarized)
Chronology of events (listing key events in chronological order and referencing key documents and testimony)
Case calendar (showing all the events leading up to trial)
Trial exhibit log (listing exhibits by number along with description of
exhibit and witness who introduced it)
This file can be used at trial if you are allowed to accompany the attorney
to the courtroom, assisting you as you take notes and monitor the evidence being introduced. Because this is probably the single most important file you will
work from throughout a case, make a backup diskette in case you lose the file.
TECHNO TIP
When preparing your pleadings files,
keep the forms for each type of case
separate. Contract cases, for example,
generally require that the same types of
documents be requested. Tort cases
have a separate attachment describing
the documents to be produced. If you
are consistent in preparing the forms,
after creating a new document (as suggested in Chapter 3), in most cases you
can use the find (search) and replace
mechanism of your word processor to
CHAPTER 4
S U M M A RY
Once the pleadings have been completed, the discovery motion process can
begin. Litigants use discovery to ferret out the facts of their opponents case
as well as to prepare their own. Under the federal rules any nonprivileged information that is reasonably calculated to lead to admissible evidence must
be disclosed. The primary mechanisms of discovery are depositions, interrogatories, requests for admission, requests for production of documents and
things, and requests for medical examination.
By deposing witnesses, attorneys can question opposing witnesses in advance of trial and record their answers so that witnesses are less able to
change their answers at trial. Any party to a lawsuit is allowed to take depositions. Opposing counsel is allowed to make objections to questions asked, and
a court reporter is present to prepare a transcript. Such transcripts not only
help attorneys prepare for trial but they can also be introduced as evidence at
trial. Court clerks or judges issue the subpoenas that require witnesses to appear at depositions. Although in the past attorneys were allowed to depose as
many witnesses as they wanted, today most jurisdictions limit the number of
depositions by requiring attorneys to receive court permission before deposing nonparties. Under the federal rules, parties must have court permission to
conduct more than ten depositions.
Interrogatories are written questions directed toward the opposing party.
Responding parties have limited time to serve the answers to the propounding
party and propounding parties are often limited in the number of interrogatories
they can propound without receiving court permission. Interrogatories are
cheaper than depositions and can be used to locate documents and potential witnesses, but they are less flexible than depositions, can be used only on parties
(not witnesses), and are less effective in pinning down parties to specific details.
Requests for production of documents and things and subpoenas duces
tecum are used to obtain documents or physical objects. The former is used with
parties to a lawsuit and the latter with nonparties. The responding party complies
by either mailing or delivering copies of the documents. Permission to enter a location may be obtained by filing a request for entry upon land for inspection.
Expert witnesses often play an important role in litigation. Their experience and training in a specialized field allow them to offer opinions that can be
critical to a case. Although opposing parties want to be able to examine expert
witnesses before trial, the procedural rules limit the discovery of experts.
When a partys medical condition is at issue, the opposing party may
serve a Notice of Independent Medical Examination, requiring that person to
be examined by a specified doctor at a specified time and place.
Limitations have been imposed on discovery to reduce the costs and delay
caused by abusive discovery practices. More recently mandatory disclosure rules
have been imposed, requiring parties to disclose information even without being
asked to do so. Typically these rules require the disclosure of names and addresses of witnesses, the computation of damages, the exchange of documents,
and the production of certain categories of information. These rules can create
ethical dilemmas for litigators when their obligation to disclose conflicts with
their duty to preserve the confidentiality of their client. If a party fails to comply
with these rules, the opposing party may file a discovery motion with the court.
Legal assistants play a key role in the discovery process. They can conduct investigations as well as assemble, organize, and analyze documents and
other information. Their training allows them to carry out detailed and painstaking tasks that would be too expensive for an attorney to perform and that
are beyond the expertise of clerks and legal secretaries.
85
86
CHAPTER 4
KEY TERMS
Admit
Court reporter
Deponent
Deposition
Discovery
Evidence
Examine
Exclude
Expert witness
Impeach
Interrogatory
Mandatory disclosure rules
Notice of Independent Medical
Examination (IME)
Propounding
Propounding party
Request for admissions
Workshop Alert
The following workshops correlate well with this chapter and you would be well advised to work with them.
Introduction to Discovery Workshops
Workshop 9
Document Discovery
Workshop 10
Written Discovery
Workshop 11
Workshop 12
Workshop 13
REVIEW QUESTIONS
1. What are the two types of evidence that can be
admitted at trial? Who decides what evidence
will be excluded?
2. What is the purpose of discovery? What are the
primary tools of discovery?
3. What transpires at a deposition?
a. What two purposes does a deposition transcript serve?
b. Can witnesses be compelled to attend a deposition? How?
c. What types of limitations are currently being
imposed in reference to depositions?
4. What is meant by the phrase propounding interrogatories?
a. What is the advantage of using interrogatories rather than deposing someone?
b. What is the advantage of deposing someone
rather than using interrogatories?
c. Can any witness be required to answer interrogatories?
5. What are two procedures that can be used to
compel someone to turn over documents?
CHAPTER 4
87
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
1. Discovery involves
a. obtaining evidence.
b. preparing a record that can be used at trial.
c. establishing facts.
d. all of the above.
2. A pretrial motion
a. cannot result in a final disposition to a case.
b. can resolve a procedural dispute.
c. is prepared by the judge.
d. is written to another party.
3. Under the federal rules information must be
disclosed
a. even if it is privileged.
b. only if a party can prove definitively that it
will be admissible at trial.
c. if it is reasonably calculated to lead to admissible evidence.
d. if it is helpful to the party seeking it.
4. The purpose of a deposition is
a. to record witnesses answers so they are
less able to change their answers at trial.
b. to allow attorneys to question opposing witnesses before trial.
c. to make it easier to examine witnesses at
trial.
d. all of the above.
5. In reference to how many depositions may be
conducted
a. some jurisdictions require court permission
before allowing attorneys to depose nonparties.
b. some jurisdictions require court permission
if an attorney wants to take more than ten
depositions.
asked to do so.
_______________ .
88
CHAPTER 4
_______________ depositions.
_______________ .
TRUE OR FALSE
23. The jury decides what evidence will be excluded at trial.
T F
24. Under the common law parties came to trial
with whatever evidence they had at the time.
T F
35. Many courts place limits on the number of interrogatories that can be propounded without
seeking court permission.
T F
36. Responding parties have a limited time to serve
the answers to interrogatories.
T F
39. Expert witnesses are treated like any other witness for purposes of discovery.
T F
28. Judges are not present at depositions so objections must be ruled on later.
T F
41. A personal injury plaintiff should not be surprised if defense counsel requests an IME.
T F
42. Mandatory disclosure rules were enacted in response to the gamesmanship and wastefulness
of abusive discovery practices.
T F
43. Legal assistants can assist in the discovery
process by coming up with ways to acquire evidence without involving the opposing party.
T F
44. A critical role of legal assistants in discovery is
the assembling, organizing, and analyzing of
large volumes of documents.
T F
CHAPTER 4
89
LITIGATION LINGO
(Answers in Appendix A)
Fill in the missing letters.
1.
__P__I____
2.
_R____R___
3.
__P___H
To discredit
4.
__C____C__
5.
_X____E
To question
6.
__O_O___
To send interrogatories
7.
_X____
8.
__T_R______R_
9.
_R___C____
10.
_ O _ _ _ _ OF _ _ _
11.
__S__O____
12.
_X___D_
To reject evidence
13.
_D___
To allow evidence
14.
_D__S____
15.
__P____T
16.
___C___R_
17.
__B__E__
18.
___P__T___
LITIGATION LOGISTICS
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
90
CHAPTER 4
LITIGATION LOGISTICS
continued
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
3.
Suppose you want to obtain your cousins financial records for his business in your suit against
him for monies he has refused to pay you.
a. How would you go about obtaining them?
b. How would you obtain accounting statements from his accountant?
c. Suppose the business is an apartment complex and you would like to be able to see
what the current condition of the complex is
but your cousin refuses to let you on the
premises. How would you get court permission to inspect the premises? How long will
your cousin have to respond to this motion?
d. Suppose your cousins attorney claims that
some papers you have requested in your discovery requests are privileged. How would
you go about determining if this claim is valid?
4.
Suppose you sue your contractor for the problems you are now experiencing with your new
home.
a. Under the rules of your state is there any evidence he will be obligated to disclose to you
without you asking for it? If so, what is that
evidence?
b. You intend to have a contractor testify about
the standard of care expected in the construction industry. Will the defendant be
able to determine in advance what the nature of this testimony will be? Will there be
any limitations on what the defendant will
be able to discover about this testimony?
c. Is there any limit in your jurisdiction to the
number of requests for admission you will
be able to make?
PROCEDURAL PONDERABLES
1. What types of discovery do you envision occurring in each of the following cases? Who would
you depose? What types of discovery do you
anticipate the defense will use?
a. Drunk driver sideswipes your car.
b. Tenant stops paying rent and refuses to
move out.
CHAPTER
ROAD MAP
OF A LAWSUIT:
MOTIONS
OBJECTIVES
In this chapter you will learn:
What motions are and how they are
presenting motions
92
CHAPTER 5
hypothetical
MOTION PRACTICE
Motions are simply formal requests for the judge to do somethingusually, to
enter an order or make a ruling of some kind. Because litigation is a contest between adversaries, it is crucial to be sure that judges hear from both sides before
making important rulings. As a practical matter, in modern court systems, this is
accomplished by requiring essentially all communication with the judge to be by
motion, coupled with ethical rules prohibiting either attorney from contacting
the judge without the opposing attorneys knowledge.
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93
)
)
)
Plaintiff,
)
)
v.
)
)
ARTHUR COLLINS, et ux., et al.,
)
)
Defendants.
)
_____________________________________ )
Plaintiff respectfully moves pursuant to Rule 56, Federal Rules of Civil Procedure, for partial
summary judgment in favor of plaintiff and against defendant Park Hotels Group, Inc. on the issue
of liability.
This motion is based upon the affidavit of Shannon Martin and upon the accompanying
Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED this _____ day of ____________________ , 19_____ .
SIMON & PORTER
Allen Porter
Attorneys for plaintiff
(Memorandum of points and authorities giving detailed legal argument follows)
How many kinds of motions are there? As many as there are things that you
could ask the judge to do. Some kinds of motions are appropriate to almost every
case, and have commonly accepted names: Motions for summary judgment
(FRCP, Rule 56), motions to dismiss [FRCP, Rule 12(b)], and motions to compel
discovery (FRCP, Rule 37). You are not limited to these standard categories, howeverhere, inventiveness is entirely appropriate and often indispensable. If you
need to ask the court for something that does not fit one of the garden-variety
motions that you know about, then create one! Simply change the title as needed.
When you have written your motion and the supporting memorandum,
the next step (as with all court papers) is to file it with the clerk of the court
and serve copies on all other parties. Local rules may also require delivering
a copy to the assigned judge. The opposing party is then given some period of
time in which to file and serve a written response. The response is a court paper similar to the motion, and is likewise supported by a memorandum of
points and authorities, this time giving all of the opposing partys reasons why
the judge should not do what the motion is asking; see FRCP, Rule 56.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
Under your local rules
what would you have to
do to file a motion in
Shannons case?
94
Putting It
Into Practice:
In your state how much
time would Dr. Collins
have to respond to a
motion for summary
judgment filed by Allen
Porter?
CHAPTER 5
How does the responding party know when the response will be due? The
answer depends on the court. Some courts set a briefing schedule and notify
the attorneys. In others, rules of procedure or local rules establish a set number of days for response. It is important to know how the system works in each
court in which you will be litigating, because missing response deadlines is hazardous. Many judges simply dispose of unresponded-to motions summarily
that is, they grant the motion immediately unless there is some obvious reason
not to. Note, however, that recent case law has, in many states, required the
court to review the entire record prior to granting a motion for the sole reason
that a response has not been filed.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
After the opposing party responds, the moving party is allowed to file a
written reply. The format is the familiar one, a court paper accompanied by a
short memorandum, this time rebutting the arguments made in the response.
Notice the three-stage sequence: Party A makes an argument, party B makes a
response, and party A replies to the response. This pattern of argument occurs
over and over in litigationmotions, jury summations, appellate briefs. Almost always, the sequence is argument, then response, then reply.
Motions, responses, replies, and the accompanying memoranda are referred to generically as motion papers.
In theory, oral argument follows the three-stage sequence with the moving
attorney speaking first, the opposing attorney second, and the moving attorney then giving a brief reply. In practice, most judges feel free to interrupt with
questions at any time, and some do not enforce the idea of the attorneys taking turnsin some courts arguments on motions can descend into a kind of
free-for-all of interruptions and counter-interruptions.
Not all motions are scheduled for hearings. Given their increasingly impossible caseloads, many judges prefer not to spend time listening to attorneys give
speeches repeating the same arguments that they have made (or should have
made!) in their written memoranda. In many courts, hearings are scheduled only
CHAPTER 5
95
if specifically requested, and even then the judge is always free to cancel the
hearing and issue a decision based on the written memoranda alone. The lesson
should be clear: Always write a legal memorandum as if it will be the only argument on your side that the judge will see. Never assume that you can patch any
holes at the hearing, because there may not be one; see FRCP, Rule 78.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
How do the parties learn of the judges decision? Sometimes, the judge will
announce a decision at the conclusion of the hearing. More commonly,
though, the judge will take the motion under advisement (also called under
submission), meaning that she will issue a decision later. This gives the judge
time to reflect on the arguments and to reread the memoranda if desired. It
also lets the judge avoid the potentially awkward task of giving the loser the
bad news face to face. The judges order (a written decision either denying or
granting the motion), whenever it is arrived at, will be formally communicated
to the parties via a minute entry (see Figure 52). The term is another of those
throwbacks to the courts of yore, where the clerk kept the minutes, entering
everything that happened in court meticulously in a minute book. In modern
courts, each of the rulings of the judge is typed on a printed form, with one
copy mailed to each of the attorneys involved in the case to which the ruling
pertains, one copy placed in the court file for that case, and one copy added
to a file in which all of the minutes of that judge are kept in chronological order. A word of caution: Dont waste valuable relationships by constantly calling the judges secretary to find out if a decision has been made!
Gail Stoddard speaking.
Hi, Gail, this is Allen Porter. I just wanted to let you know I did discuss
your settlement offer with my client, and, frankly, $20,000 just isnt the ballpark that were playing in.
Putting It
Into Practice:
Suppose Dr. Collins files
a motion for summary
judgment. How will that
motion be decided? How
will he be notified of the
outcome?
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CHAPTER 5
SIDEBAR
Claims
One of the best ways of analyzing something is to break it up into smaller
pieces that can be more easily understood. That is exactly what we do in complicated lawsuits. We think of the suit as being composed of separate claims
or causes of action (the terms are interchangeable), and deal with each one
individually.
To oversimplify only slightly, a claim is a chunk of the lawsuit that could
be sustained as a separate lawsuit all by itself. For example, our hypo involves
a claim by Shannon against the hotel for negligence, another claim by Shannon
against Dr. Collins for negligence, a claim by Shannon against Dr. Collins for
battery, a claim by Dr. Collins against Shannon for battery, and so forth. Each
of these claims could, standing alone, potentially sustain a lawsuit, even if all
the others were dropped. Each claim is asserted by at least one party and defended by at least one other party. (Notice that the party defending a claim is
not necessarily a defendantremember, as discussed in Chapter 3, the defendant can bring counterclaims against the plaintiff, and defendants can make
cross-claims against each other.)
Putting It
Into Practice:
What would be the
consequence for Shannon
if the judge dismissed her
claim for negligent
infliction of emotional
distress against the hotel
and Dr. Collins?
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97
98
CHAPTER 5
Putting It
Into Practice:
On what basis might Dr.
Collins move for a
summary judgment?
All rise.
The thirty or more attorneys who were gathered in the gallery of the large
courtroom for the courts weekly motions calendar broke off their conversations and got to their feet. The judge emerged from his private entrance behind the bench and ascended to his chair. The bailiff continued, The United
States District Court for the District of Arizona is now in session, the Honorable Jerome Lewis presiding. Be seated.
The clerk announced Allen Porters motion first. Number 95-770 civil,
Martin versus Collins, et al., defendants motion for summary judgment. Appearances, counsel? She handed a file up to the judge.
A conservatively dressed young woman rose, walked over to the lectern,
and leaned over to speak into the microphone. May it please the Court, Gail
Stoddard, of Crandall, Elkins, appearing for defendant Park Hotels Group,
CHAPTER 5
Your Honor. She stood to the side to let Allen Porter approach the microphone.
Allen Porter, Simon and Porter, for plaintiff Shannon Martin, Your
Honor.
Are you there, Mr. Yarborough? The judge leaned over toward the
speaker telephone on the clerks bench. Good. The record will show the appearance of Roger Yarborough, telephonically from Dallas, for defendant
Collins.
The judge leafed through his file. I have read your motion papers. As I
understand it, your client, Mr. Porter, was asleep in her room at Ms. Stoddards hotel, when Mr. Yarboroughs client turned up in her room, and she
thought he was attacking her and she shot him. Is that about it?
Thats exactly right, Your Honor, and of course the reason for the claim
against the hotel is that Dr. Collins could not have gotten into the room absent the hotels negligence.
The judge turned to Gail Stoddard. Ms. Stoddard?
Thank you, Your Honor. Our motion is very simplethere is no evidence that the hotel was negligent. The key that Dr. Collins had, which has
been in police custody the entire time, could not have unlocked plaintiffs
door. There is no dispute about that. Therefore, either the door was already
unlocked, or plaintiff opened it from the inside. The usual notices were
posted on the door, warning guests to keep the doors locked. We sympathize
with plaintiff and we certainly regret what happened, but Banbury Park Hotel did not injure herDr. Collins did.
The judges expression was impassive. Mr. Porter?
Thank you, Your Honor. You have before you my clients affidavit that the
door was locked, she checked it twice. We submitted Dr. Collinss deposition
testimony that he inserted his key in the lock and turned it. The point is, we
dont know how or why Dr. Collins was able to open the doorthe evidence
is conflicting. Certainly, defendants experts affidavit that the key the police
have doesnt fit the lock is evidence. But my clients testimony and Dr. Collinss
testimony are also evidence. And I would just take issue with Ms. Stoddards
statement about the key being in police custody the entire timeit was only
in police custody after the police arrived. Before that, anyone could have had
access to it. Whether the hotel gave Dr. Collins a key that fit my clients door
is a genuine issue of fact, and it should be left for the jury to decide after hearing all of the evidence.
Thank you, counsel. It will be ordered taking defendants motion for
summary judgment under advisement. Clerk, call the next case please.
99
100
Putting It
Into Practice:
As a strategic matter, why
is a motion to dismiss
often better than a
motion for a more
definitive statement?
CHAPTER 5
amendments to pleadings. Naturally, there are some limits; you should not
count on being allowed to make some amendment that completely changes
the nature of the case a week before the trial, for example. But in general, the
rule is no harm, no foul; as long as an amendment does not unfairly hinder
another partys trial preparation, it will usually be allowed; see FRCP, Rule 15.
You will occasionally be called on to answer a complaint that is so poorly
drafted that you cannot tell for sure what the suit is about. One option is to file
a motion for a more definitive statement, asking the judge to order the plaintiff to be more specific. (As a strategic matter, a motion to dismiss is often a
better choice. After all, why educate your opponent about the problems with
her case if you can get the case dismissed instead?) See FRCP, Rule 12(e).
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
DISCOVERY MOTIONS
The area of motion practice that consumes by far the greatest amount of
lawyer and paralegal timeand the area disliked by most judgesis discovery. Discovery is an adversarial process. No party wants to turn loose evidence that will help an opponents case. Disputes arise constantly and must
be refereed by the court. Discovery disputes are tedious and time consuming
because the judge has to understand the factual details of the case in order to
decide what information has to be disclosed.
Discovery responses are rarely complete the first time they are submitted.
The first task of the lawyer seeking the discoverya task often delegated to
paralegalsis to analyze the response to determine what is missing. This is often far from easy, because considerable guesswork may be entailed in figuring
out exactly what records should exist and what information the opposing
party should have available.
In practice, incomplete discovery responses are, if not the norm, at least
commonplace. They are generally followed by a series of demand letters and
phone calls by the party asking for the discovery, the purpose of which is to
create a written record showing that every possible effort has been made to
obtain the requested information without bothering the judge. In many courts,
the rules make such a showing mandatorythe court will not even hear a motion to compel discovery unless the moving attorney certifies he has personally conferred with opposing counsel and tried to resolve the dispute.
Putting It
Into Practice:
Why are so-called
obstructionist tactics
tolerated in the American
legal system?
to file a motion to compel discovery. This is a formal motion asking the judge
to order the responding party to produce the information that has been requested. It is up to the moving party to convince the judge that the information or documents sought have been properly requested using the correct discovery procedure, that the other partys response is deficient, and that the
moving party is entitled to the disclosure being asked for. The responding
party may defend the motion by attempting to persuade the judge that the information asked for is privileged, or they may be able to find case law supporting an argument that the particular requests are improper for some reason. Or, and unfortunately all too often, the responding party may defend
simply by throwing a lot of dust in the airpeppering the argument with large
CHAPTER 5
volumes of complicated and extraneous factual issues in the hope that the
judge, who has little time to devote to each motion, will be unable to reach a
clear understanding of what has really happened; see FRCP, Rule 37.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
If the judge concludes that the responding party has failed to provide disclosure as required by the rules, the court will order the responding party to
turn over the information and will usually set a deadline. The judge also has
the power to order the responding party to pay the fees charged by the moving partys attorney for preparing and arguing the motion to compel. As a practical matter, however, most judges rarely assess fees in discovery motions, except in the most egregious cases of deliberate disobedience.
Allen, do you remember the request for production of documents that we
served on Park Hotels Group? We just got the response; do you want to look
at it?
Allen Porters lack of enthusiasm was apparent as he eyed the four-inch
sheaf of photocopies in Chuck Fletchers hand. Why dont you just give me
a quick rundown.
Chuck dropped the pile of documents on Porters table and sank into a
nearby chair. This is the one where we asked for all those records from the
hotel. Maintenance records on the fourth floor lockstheyve given us that,
along with all the other maintenance records for the whole place for the last
six months, which is most of this stack. I havent waded through all of it, but
so far I havent found any record of the locks being changed on 407 or 409.
Of course, theres no way to know if any records are missing, either. Registration cards for all the fourth floor guests that nightremember, we wanted
to see if we could find any witnessestheyre still stonewalling on that one,
objected to as irrelevant and violating the right of hotel guests to privacy.
Ditto on the incoming phone call printout for that night. Trevaynes personnel file, objected to as confidential.
Porter shook his head resignedly. In other words, still nada. Didnt we
get danced around on this one once already?
Yeah, their first response said they were still looking for the records. You
sent them a demand letter.
Okay. Well, why dont you draft another letter, pointing out that theres
no legal basis for those objections, and demanding a full response within
fourteen days. Right of hotel guests to privacy doesnt come under any privilege I ever heard of.
Sure, if thats what you want to do, but, can I ask, why dont you just
move to compel?
The federal court rules say that before I can move to compel I have to
personally confer with opposing counsel and make a good faith effort to obtain voluntary compliance, and I have to certify in the motion that Ive done
it. And as a practical matter, these motions are easier to win if you can attach
a series of correspondence to the motion showing that you really tried to work
with the other side to get what you need. Well wait the fourteen days, then Ill
call up Gail Stoddard and let her tell me for the third time why she thinks she
doesnt have to give me this stuff, and then well file the motion to compel.
101
102
CHAPTER 5
Then the judge will give her a deadline and tell her to file a complete response,
and when she files it, it still wont be complete, and well do it all again. But if
were persistent, sooner or later well get what we need. Then you can start
contacting some of the other guests and see if anyone saw anything.
What do I put in the letter about why the phone printout is relevant?
Porter thought for a moment. Say that its to confirm the exact time of
the desk clerks 911 call.
Motions for SanctionsSuppose the court hears a motion to compel, orders the responding party to turn over information, and the responding
party offers up still another evasive or incomplete answer. What then? Does
the lawsuit turn into an endless series of motions to compel, ending only
when one party runs out of money or patience and gives up? No, as you
would expect, the sanctions become stronger the second time the judge has
to get involved in the same discovery dispute. On a motion for sanctions
a motion seeking to punish a party who continues to stonewall even after a
motion to compel has been made and granted and the court has ordered the
party to disclosethe judge has several options. (Please notice that these
stronger sanctions are available only where there has already been one motion to compel made, granted, and disobeyed relating to the same subject
CHAPTER 5
SCHEDULING ORDERS
AND DEADLINES
Who decides what motions need to be filed, what discovery needs to be taken,
and when these tasks will be done? For many years the answer was clear: The
initiative lay with the attorneys for each party. The result was somewhat of a
free-for-all, with each side filing motions, noticing depositions, and sending
out discovery requests more or less whenever the urge struck.
The traditional approach was not without its drawbacks. Cases tended
to drag on and onattorneys can always think of one more motion to file or
one more deposition to take. Discovery tended to multiply, at enormous
cost to the parties. Judges wasted valuable time hearing motions for continuances when scheduled trial dates arrived and cases were not ready to
be tried.
In the search for greater efficiency, more and more courts have begun taking an active part in scheduling the tasks necessary to prepare a case for trial.
Many courts now require the attorneys to appear before the judge for a scheduling conference shortly after the pleadings are complete. After discussing
the case with the attorneys, the judge issues a scheduling order, specifying, at
least in a general way, what motions will be filed, what discovery will be taken,
and setting firm deadlines for the completion of each task.
103
Putting It
Into Practice:
Suppose Gail Stoddard
inundates Allen Porter
with hundreds of totally
irrelevant interrogatories.
How should he respond?
Would it be appropriate
for him to move for
sanctions? Does your
state require any
prerequisites prior to filing
a motion for sanctions?
104
Putting It
Into Practice:
What is a possible
downside of increased
judicial management
of cases?
CHAPTER 5
Putting It
Into Practice:
Why is the ability to
prepare accurate, concise
deposition summaries an
important skill for
paralegals?
CHAPTER 5
105
ETHICAL ETIQUETTE
PRACTICE POINTERS
Central Index
A central index is the master index of all indexes. This index lists every file
and identifies its contents. Of course, the more comprehensive this file is, the
more useful it will be when you are called on to locate a document. This simple organizational tool should allow you to put your fingers on any document
within seconds.
This index should contain the following general categories:
Notes and correspondence
Pleadings
Discovery
Client documents
Opposition documents
Witness files
Trial exhibits
continued
106
CHAPTER 5
PRACTICE POINTERS
Central Index continued
Because the document files are usually the most extensive and the most frequently worked with, you would be well advised to further subdivide client
documents into originals and documents produced to opposition, and to subdivide opposition documents into those produced from investigation, those
produced in response to a discovery request, and a working set.
Assign each category of items a separate number; notes and correspondence can begin with 100, pleadings with 200, discovery with 300, and so on.
As each new accordion file is added, increase the file number by one. So if
three accordion files are created for discovery, the first one will be numbered
300, the second one 301, and the third one 302. Then color code all file labels
according to category so that pleadings, discovery, and client documents, for
example, all have different colored labels.
TECHNO TIP
If you have a friend in the legal business
in a different city or state you can still
share files efficiently (assuming, of
course, your supervisor and theirs give
permission). You do not need to send
paper copies or floppy disks. Instead,
use your e-mail and include the desired
file as an attachment. It is instantaneous
and cheap. If you find a useful pleading
in your review of court files of similar
cases, make a copy of it. While the authors have never seen a court filing with
a copyright notice on it, professional
courtesy requires you to contact the author and ask permission to utilize the
S U M M A RY
Motions are formal requests for a judge to enter an order or make a ruling.
Practically speaking, all communications with judges are through motions.
Written motions are accompanied by a memorandum of points and authorities
explaining why the judge should do what the moving party is requesting. Motions must be filed with the court clerk and copies must be served on all parties. The opposing parties are then given a time period to file a response explaining why the judge should not do what the moving party is requesting.
Failure to file a response in a timely fashion may result in the motion being
granted. After a response is filed, the moving party is then allowed to file a reply, which rebuts the arguments made in the response.
Some motions are resolved after a hearing at which oral arguments are
held either in the courtroom or in the judges chambers. Because oral argu-
CHAPTER 5
107
KEY TERMS
As a matter of law
Chambers
Dismiss
Failure to state a claim
Hearing
Memorandum of points and
authorities
Minute entry
Motion for a more definitive
statement
Oral argument
Order
Response
Scheduling conference
Status conference
Under advisement (under
submission)
108
CHAPTER 5
Workshop Alert
The following workshops correlate well with this chapter and you would be well advised to work with them.
Workshop 14
Workshop 15
Workshop 16
REVIEW QUESTIONS
1. What purpose does a memorandum of points
and authorities serve and where is such a memorandum found?
2. Is it appropriate for an attorney to invent a motion if none of the standard motions accommodates his needs?
CHAPTER 5
109
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
1. Motions are
a. always resolved at a hearing.
b. decided by judges who communicate their
decisions via minute entries.
c. usually decided by judges immediately after
oral arguments.
d. always resolved informally in the judges
chambers.
2. In considering a motion to dismiss a judge must
a. dismiss some claims and grant judgment on
others.
b. consider the evidence.
c. consider whether there is any proof to support a claim.
d. decide whether the plaintiff will win if he
proves every allegation in the complaint.
3. Motions to dismiss can be based on
a. failure to state a claim.
b. lack of jurisdiction.
c. lack of sufficient evidence.
d. a and b.
4. A motion for summary judgment
a. will be granted if no genuine issue of material fact exists.
b. should be accompanied by documentary evidence, witness affidavits, deposition transcripts, and interrogatories.
c. will be denied if a factual dispute exists.
d. all of the above.
5. Discovery motions
a. are generally the easiest motions for judges
to deal with.
b. rarely involve motions to compel.
110
CHAPTER 5
as _______________ .
to discovery requests.
arguments made.
as a _______________ .
_______________ .
motion _______________ .
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111
TRUE OR FALSE
34. Judges are required to render decisions on motions immediately but then must follow their verbal pronouncement with a formal minute entry.
T F
46. A judge can prohibit the use of evidence that favors a party if that party fails to comply with an
order to produce that evidence to the moving
party.
T F
112
CHAPTER 5
LITIGATION LINGO
(Answers in Appendix A)
11
15
14
13
17
13
12
10
12
16
10
11
CROSSWORD PUZZLE (This crossword puzzle reviews terminology from both Chapters 4 and 5.)
DOWN
1. To submit interrogatories to another to answer
2. When a party errs in drafting a complaint they can move for leave to __________ .
3. An all-purpose motion that can be used when no other procedural mechanism applies is a motion for a
__________ conference.
4. A conference some judges require attorneys to appear at after completing their pleadings
5. A judge communicates her decision via a [13 ACROSS] __________ .
6. The teeth in the discovery rules
7. Abbreviation for the federal rules
8. A court paper giving all the reasons why the court should not do what the moving party is requesting
9. The type of judgment that can be requested when there is no genuine issue of material fact
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113
10. Mandatory __________ rules require parties to turn over evidence without being requested to do so
11. When a judge does not want to render an immediate decision she takes the matter under __________ .
12. A chunk of a lawsuit
13. Issues that are not disposed of via a partial summary judgment remain to be resolved at __________ .
ACROSS
1. An alternative to a motion to dismiss when dealing a poorly drafted complaint is a motion for a more
__________ statement.
2. The type of motion that a party can use against a recalcitrant party that refuses to respond to discovery
requests
3. What a court reporter prepares at a deposition
4. A type of motion that serves as a remedy to an insufficient defense
5. To allow evidence into the record
6. A failure to state a claim is an example of this type of motion
8. A court paper rebutting the arguments made in the response
9. A party that feels the opposing party is being unreasonable in its discovery requests can file a motion
for a protective __________
10. Bring with you
11. Someone who has special scientific or technical knowledge
12. This request is used during discovery to obtain documents from the opposition
13. A judge communicates her decision via a __________ [ 5 DOWN].
14. A memorandum of __________ and authorities must accompany a motion.
15. To require a witness to answer questions at a specific time and place
16. Formal request for a court to do something
17. What is ordered when a partys medical condition is at issue
114
CHAPTER 5
LITIGATION LOGISTICS
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
3.
Suppose you sue your contractor for the problems you are now experiencing with your new
home. You decide that no issue exists in reference to the contractors negligence and that
only the issue of damages should have to be decided by a jury. What kind of motion will you
have to file and what will you have to show?
Will you be entitled to make an oral argument?
Suppose you and the defendant contractor
have just completed your pleadings and are already experiencing conflict in reference to setting up a deposition schedule. Will the court in
your jurisdiction be of any help to you in resolving this conflict? If not, is there any kind of
motion you could file that would address such
a conflict?
PROCEDURAL PONDERABLES
1.
2.
What types of discovery do you envision occurring in each of the following cases? Who would
you depose? What types of discovery do you
anticipate the defense will use?
a. Drunk driver sideswipes your car.
b. Tenant stops paying rent and refuses to
move out.
c. Cousin refuses to pay you a percentage of
his business.
d. Karate instructor breaks your nose.
e. Contractor does shoddy work on house.
CHAPTER
ALTERNATIVE
DISPUTE
RESOLUTION
OBJECTIVES
In this chapter you will learn:
To distinguish among the various
types of ADR
How to determine the most appropriate
using ADR
What roles paralegals play in the ADR
process
116
CHAPTER 6
hypothetical
CHAPTER 6
Whats the point of going to all the trouble of presenting the evidence to
a jury if its verdict is not binding? questioned Shannon, who was becoming
somewhat perplexed by all of these permutations of the trial process.
Because someone from each side is present to observe the presentation
of the evidence and the jurys deliberation process, the attorneys can get a
sense of how an actual jury would come out on the case. This reality check often prompts them to settle. Theres another process similar to a summary jury
trial called a mini-trial but Im not sure this would be appropriate in your case.
Thats OK; Ive heard enough. Youve certainly given me something to
think about, offered Shannon, feeling overwhelmed yet comforted in knowing that she had several options from which to choose. Give me a few days
to reflect on this and Ill get back to you.
W H AT I S ADR?
Alternative dispute resolution (ADR) encompasses all those approaches to
dispute resolution that allow individuals their day in court but save them
some of the time, expense, and psychological trauma of going to trial. These
are the primary forms of ADR in use in the United States today:
Although other variations of ADR exist, these are the most commonly used
forms in the United States as of 2000 and will serve to illustrate the nature and
scope of ADR. Let us explore each of these variations individually.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
H I S T O RY
OF
ADR
Although ADR is relatively new to mainstream America, it has been used for
years by various segments of our society who preferred to settle disputes
without litigation. The Puritans and Quakers, for example, used mediation and
117
118
Putting It
Into Practice:
Why might ADR be more
acceptable today than it
was 50 years ago?
CHAPTER 6
arbitration, and resorted to the legal system only when absolutely necessary.
In the nineteenth century, Mormons, as well as Chinese and Jewish immigrants, developed their own community dispute resolution mechanisms.
In the 1970s some, including Chief Justice Warren Burger and consumer
advocate Ralph Nader, talked about a need for a less expensive and less formal means of resolving disputes. ADR began to be seen as a possible solution
to clogged court calendars and general inaccessibility of the judicial system to
the poor and even middle-class individuals. By the mid-1980s, the ADR world
expanded to include mini-trials used to resolve large corporate disputes, private judging, mediation in divorce proceedings, and mediation and arbitration
in medical malpractice disputes.
The message that ADR had been accepted in the federal system became
clear when Congress passed the Administrative Dispute Resolution Act of
1996 (ADRA). This bill encouraged the increased use of mediation and arbitration. Like its predecessor passed in 1990, ADRA required each federal
agency to adopt an ADR policy, appoint an ADR specialist, develop an ADR
training program, and review existing agency agreements for possible incorporation of ADR clauses. ADRA also increased the federal governments use of
ADR, eliminated an escape clause that deterred parties from entering into
binding arbitration, and prevented delays in the acquisition and hiring of
third-party neutrals. Signaling the future of ADR, the 1996 act broadened the
scope of its coverage to include a wider range of administrative disputes.
Several district courts have now made ADR mandatory. Not surprisingly,
local rules requiring ADR have been challenged on constitutional and statutory grounds as well as on the grounds that they are inconsistent with various
provisions of the Federal Rules of Civil Procedure. Most courts, however, have
concluded that mandatory ADR procedures are valid. In one such case a local
rule required that certain cases involving damage claims for $50,000 or less
were to be automatically referred to nonbinding arbitration with the option for
a trial de novo (new trial) within 20 days after the entry of an award. The appellate court reasoned that this rule did not violate the constitutional right to
a jury trial because it created a statutory right coextensive with the Constitution. Also, the court determined the provision was not inconsistent with the
Federal Rules of Civil Procedure because it found that ADR greatly enhanced
the efficiency of the court system. The court was pleased that ADR allowed litigants to test their claims shortly after filing them and encouraged settlement
when arbitration revealed that no viable claim existed.
A R B I T R AT I O N
One of the first forms of ADR was originally embraced by the business community as a means of resolving labor disputes. Arbitration allows parties to
enjoy all the benefits of a trial without the inordinate expenditure of time and
money. Attorneys still play the role of advocate and a neutral third party still
serves as an arbiter. Arbitrations primary advantage lies in its reduction, or in
some cases elimination, of the discovery process. Control of the discovery
process lies with the arbitrator (the neutral third party who hears the evidence and renders a decision). Many arbitration statutes allow discovery only
as a permissible process.
Arbitration has been used longer than any other form of ADR in this country and continues to be one of the most popular forms of ADR. Arbitration can
be ordered by the court, sometimes one party can demand it, or the parties
can enter into it voluntarily. Many states have adopted statutes that compel
parties to arbitrate disputes before going to trial.
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119
FORMS OF ARBITRATION
Arbitration can take a number of different forms. In some cases arbitration is
mandatory, which means that the parties must try arbitration before being
granted a conventional trial. The mandate to arbitrate can come from a statute,
a contractual agreement, a court rule, or a custom. Note that the parties cannot
usually be forced to settle their dispute under mandatory arbitration but can be
required to at least try. In other cases, arbitration is voluntary, which means it is
used by the parties by choice as a means of attempting to resolve their dispute.
Arbitration can also be either binding or nonbinding. Binding arbitration
is final and generally cannot be appealed. The courts rarely overturn binding
arbitration awards. Binding arbitration is usually found in the private sector
and is entered into by agreement or custom. Nonbinding arbitration is generally mandated by the courts and can be appealed.
Furthermore, arbitration can be private, which is based on a contractual
agreement, or court annexed, which takes place within the court system and
is governed by local rules. Private arbitration typically arises from a contract
clause that specifies that the parties must arbitrate any disputes. Real estate
agreements and labor union contracts often contain such clauses. Stockbrokers, lawyers, health care organizations, and automobile manufacturers commonly use arbitration clauses in their contracts. The parties choose an arbitrator or go through a private provider, such as the American Arbitration
Association, and must pay for the arbitrators services.
In accordance with court-annexed arbitration the parties are notified after
filing their pleadings that they must present their claim to an arbitrator. Often
the statutes allow the courts to refer matters to arbitration by their own motion or by motion of a party requesting it. Parties can, however, object to arbitration by showing cause why it should not be attempted. The parties generally do not choose the arbitrators nor the rules of arbitration to be followed.
The award, however, is nonbinding and the parties generally do not have to
pay for the arbitrators services. If the parties are satisfied with the arbitrators award, a judgment is entered, but if either party is dissatisfied, a trial
de novo is scheduled. Disincentives to appeal exist in the form of fees required
to appeal and potential liability for costs and attorneys fees if the appellant
fails to improve his position at trial.
Arbitration can be any combination of the above. You can, for example, have
binding, voluntary, private arbitration or nonbinding, mandatory, court-annexed
arbitration. A dispute involving a contract that contains an arbitration clause will
go to private, binding arbitration. The procedure for this arbitration will be governed by the contract. A matter involving a complaint filed in the courts that falls
within a statute requiring arbitration (e.g., a federal statute requiring all civil
claims involving a disputed amount less than $100,000 in monetary damages to
be arbitrated) is considered nonbinding, court-annexed arbitration.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
SELECTION OF ARBITRATORS
Under the rules of the American Arbitration Association arbitrators are selected
by having each side strike any unacceptable arbitrators from a list of eight
to twelve randomly selected names. These names come from a list of approved
Putting It
Into Practice:
Under what
circumstances should
Shannons claim be
subject to mandatory
arbitration?
120
CHAPTER 6
SIDEBAR
American Arbitration Association (AAA)
The American Arbitration Association (AAA) is a private, nonprofit organization that provides rules for parties to follow in private arbitrations. It also
maintains a list of qualified arbitrators with knowledge in specific areas. Although the AAA does nothing to render or enforce arbitration awards, it will assist in the logistics of arbitration hearings by, among other things, providing
meeting places. The AAAs primary office is in New York but it has regional offices around the country.
In some cases, contracts will specify the use of AAA rules. In other cases, the
parties agree to modify the AAA rules to meet their own needs or they use rules
developed by some other organization. Another commonly used private organization that has established arbitration rules and procedures is the Center for
Public Resources (CPR).
arbitrators with expertise in various fields. Potential arbitrators who are friends
of either party or who are interested parties are ineligible. The AAA chooses an
arbitrator from the list of names that were not stricken by either side. The AAA
has the option of removing an arbitrator or filling a vacancy.
Parties who choose to find their own arbitrator rather than using the services of organizations like the AAA or the National Academy of Arbitration
(NAA) can use private sources. Legal publications often have advertisements
for arbitrators; local bar associations are another good source for initiating
the process of securing an arbitrator. Most arbitrators are retired judges, private attorneys, or citizens with expertise in a particular field.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
ARBITRATION PROCESS
Voluntary arbitrations are initiated when one of the parties files a motion to
refer to arbitration or a demand for arbitration. If the opposing party does
want to arbitrate, a jurisdictional battle may ensue. If, for example, a contract
clause provides for jurisdiction in advance, the opposing party may dispute
the interpretation of this clause. Or if a statute sets forth the grounds for jurisdiction, the dispute may revolve around the interpretation of this statute. In
other instances the court itself orders a case to be arbitrated. The statutes allowing courts to do this give judges wide discretion and the presumption is in
favor of arbitration.
If an arbitration agreement exists or a demand to arbitrate has been filed,
the complaint is contained in the agreement or demand. The respondent is allowed to file an answer. With court-annexed arbitrations the complaint, answer, and other pleadings are usually on file with the court. Motion practice,
however, in both types of arbitration may be very limited. While access to discovery tools is not a right under many statutes, arbitrators do have the authority to permit discovery to the extent they deem it reasonable. Because of
CHAPTER 6
the informality of the procedures, parties are not as well informed about their
opponents position as they are in litigation. Some complain that this amounts
to playing blind mans bluff at the hearing. Because the discovery rules vary
so much, those engaging in arbitration must consult the arbitration statutes in
their jurisdiction before beginning the process.
The arbitrator initiates the hearing by swearing in the parties and witnesses
who will testify. The parties then give opening arguments and present both documentary and testimonial evidence. The attorneys are allowed to question witnesses and the arbitrator may ask questions if necessary. Rebuttal questions are
also allowed. Although the rules of evidence are not followed, they may be used
as guidelines. At the end of questioning, the parties may either present closing
arguments or prepare post-hearing briefs. Some arbitrators may not allow both
or may require submissions of a brief when the hearing is over.
Arbitration hearings, unlike trials, are not open to the public. Everything
discussed in the context of the hearing is confidential and any matters disclosed often are not discoverable in future proceedings.
Arbitrators usually take the matter under advisement after the hearing. By
statute, agreement, or organizational rules, they are limited in the amount of
time they can consider the matter. Arbitrators are not required to commit the
reasons for their decisions in writing. An award that is binding on the parties
can be set aside only if the arbitrator engaged in misconduct, refused to hear
material testimony or admit material evidence, failed to decide the issues submitted for arbitration, or exceeded the limits of her authority. Courts reviewing arbitration decisions may not retry the issues of the case but are instead
limited to deciding whether the award was valid.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
121
Putting It
Into Practice:
Why might some
attorneys not like the
arbitration process? Why
might it appeal to others?
122
CHAPTER 6
M E D I AT I O N
Mediation uses a neutral third party to facilitate communication between disputing parties, assisting them in defining key issues, identifying possible options and alternatives, and enabling them to reach a mutually agreeable compromise. Unlike an arbitrator, a mediator cannot force a decision on the
parties; therefore, a mediator must rely on effective communication skills to
encourage parties to express their feelings and to listen to their opponents
position. For mediation to be effective the parties often must undergo a perceptual shift. Winning at any cost is such a predominant theme in American
culture that parties have to understand that mediation is designed to create a
winwin situation that meets everyones needs.
Mediation is usually voluntary although participation is sometimes mandated by contract or by the court. Settlement, however, can never be mandated.
When settlement is reached, studies show that mediated agreements are more
likely to be complied with than decisions imposed by arbitrators or judges. This
success may be because the parties take an active role in the decision-making
process.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
FORMS OF MEDIATION
Several models of mediation exist. Under some models, such as the community model, the mediator takes a very nondirective role, helping the parties
brainstorm and keeping the lines of communication open. The mediator does
little or nothing to suggest resolution. His primary role is to encourage the parties to express their feelings and explore possible solutions. Although some
preliminary research indicates that agreements reached under this approach
appear to be longer lasting than those obtained under the direction of a more
controlling mediator, this approach can be very time consuming and impractical when time constraints exist.
The approach more likely to be used when attorneys are involved is the
model typically used in the business community. Here the mediator participates more actively, suggesting resolutions and urging the parties to accept
these resolutions. Under this approach the expertise of the mediator can be
helpful in assisting the parties to understand their conflict, evaluate their position, and forge some kind of agreement. This approach seems to result in
CHAPTER 6
MEDIATION PROCESS
Although the mediation process varies depending on the type of model used,
certain general procedures are followed. The mediator sets the date for the
mediation and informs the parties of the rules that will be followed during
the mediation. Some mediators will meet with the parties separately before
the mediation begins so they better understand the dispute. Some mediators
also allow the parties to submit position papers outlining their positions and
the reasons they have assumed this stance. Other mediators believe that any
foreknowledge about the dispute will create preconceived notions that make
it more difficult for the mediator to be neutral. They contend that preparing
position papers allows the parties to become more deeply entrenched and
committed to their positions, thereby inhibiting resolution of their dispute.
At the beginning of the formal mediation, the mediator explains her role,
the confidential nature of the proceedings, any ground rules (e.g., no namecalling), the benefits of mediation, and the procedural steps that will be followed (if any). She begins to establish a rapport with the parties, identifies any
potential conflicts of interest, encourages the parties to mediate in good faith,
solicits their active participation, and asks if they have questions.
During the fact-gathering stage that follows the introduction, the party
who brought the dispute to the mediator is usually asked to tell his story first
and then the opposing party is given an opportunity to respond. The mediator is not obliged to follow this order, however, and if multiple issues are involved, the parties may prioritize the issues before beginning the mediation.
Depending on the level of participation of the mediator, she may assist the parties in practicing good communication skills, may reword judgmental language
123
Putting It
Into Practice:
What type of mediation
process would be most
appropriate in Shannons
case?
124
Putting It
Into Practice:
Would you advise
Shannon to try mediation
to resolve her case?
CHAPTER 6
used by anyone, and may ensure that the parties have equal opportunities to
speak. This first phase of mediation can be highly charged if the parties ventilate their feelings and opinions.
After this venting the mediator may choose to caucus with the parties
separately. This is done if the mediator feels the session is getting out of control or if the mediator needs to clarify an issue outside the hearing of the other
party. Caucuses cannot be done without the consent of the other party and
nothing discussed during a caucus can be disclosed to the other party without consent of each party.
During the fact-gathering stage, the mediator will begin to define the issues, helping the parties to focus on the issues rather than their positions.
At appropriate times the mediator will reinforce points of agreement and
conduct reality checks whenever necessary. The mediator steers the parties away from past events and focuses them on what they want to see happen in the future. The mediator is responsible for creating an environment
in which the parties feel free to brainstorm possible options and to offer
solutions without fear of censure. If no suggestions are forthcoming, the
mediator may, depending on the style of mediation, offer some suggestions
or ask questions that may lead to creative problem solving. In the event of
an impasse, the mediator uses all of her skills to circumvent the obstruction so that the discussion can continue. As solutions are proposed the
mediator must guide the parties in assessing the practicality and reasonableness of their proposals. Doing this often requires focusing the disputants on the consequences of their decisions in terms of potential future
litigation, economic and emotional costs, stress on relationships, and
other practical concerns.
Once a tentative agreement is reached, the mediator clarifies the terms of
the agreement and makes sure all parties understand the terms of this agreement. One way this can be accomplished is by having the parties restate the
agreement in their own words. The essence of the agreement is then prepared
in writing, although the parties may want to have the agreement reviewed by
an attorney before signing a formal agreement. In a court-ordered mediation
the parties may be required to appear before a judge to finalize their agreement. Whatever the formal requirements for closure, advocates of mediation
recommend some kind of personal closure as well, symbolized by perhaps a
handshake or a sharing of coffee.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 6
SIDEBAR
Advocacy in Mediation
Advocacy in mediation requires different skills from those needed for litigation. Litigators must persuade the trier of fact to accept their position. In opening statements, for example, they must sell their clients story with such persuasiveness that any alternative version seems implausible. Mediators, on the other
hand, must sell their client, not their clients story, during opening statements.
They must persuade their adversary, more so than the mediator, to be sympathetic to their cause. Because most parties arrive at mediation already distrusting the opposing lawyer, attorneys are wise to use opening statements to set a
tone of humility, respect, and humanity rather than to gain a competitive advantage. A persuasive but sympathetic opening addressed to the adverse party
and counsel can set the stage for a positive settlement.
Likewise, good advocacy in mediation requires being able to understand
the other partys perceptions. Indeed, the attorneys motto should be seek first
to understand and then to be understood. Understanding the opponents perspective allows attorneys to be more flexible if that perspective makes sense, and
to persevere for a more favorable settlement if the opponents perspective makes
no sense.
Gaining that perspective can take time and for that reason the mediation
process is often time consuming. People need time to process information; if not
allowed sufficient time to do that, they will cling tenaciously to their original
perspective. Consequently, two of the most important qualities of a good advocate in mediation are patience and perseverance.
For obvious reasons, attorneys should never threaten or make pejorative
statements about their opponents. Settlements are essentially based on trust; by
undermining that trust, threats and pejorative statements minimize the chances
of settlement. Furthermore, opponents may react to threats and insults by hardening their position and resolving to take the dispute to the courthouse. While
ridicule or accusation may serve to discredit or rattle a witness at trial, they are
simply not effective negotiating tools.
words being used). Similarly, they must be able to reframe what a party has
said in a nonjudgmental way that reduces the charge (sting) on the communication so that the receiving party can respond rather than react. It is this capacity to keep the lines of communication clean that enables mediators to
keep parties on track rather than going down emotional rabbit holes that
jeopardize the possibility of settlement.
In addition to excellent listening skills, paralegals must be flexible enough
to adapt to the particular needs of the participants. Some individuals respond
better to gentle, restrained intervention, whereas others need more forceful
guidance. The interpersonal skills required to be an effective mediator are
quite sophisticated. Mediators must know, for example, how and when to steer
people through impasses, how to help them save face, and how to stimulate
creative problem solving without suggesting the resolution.
In general, successful mediators have patience, a sense of humor, a strong
sense of caring, and a desire to help others solve challenging problems. They
are able to stay calm in the presence of strong emotions. They express themselves clearly and hear others with minimal distortion. Above all, they genuinely like people and are tolerant of human eccentricities.
125
126
Putting It
Into Practice:
What types of people do
you think are best suited
to be mediators?
CHAPTER 6
Paralegals who want to remain in litigation can still play a role in mediation.
The same tasks that must be completed to prepare for litigation are also needed
to prepare for mediation. With those matters that do not begin with litigation,
investigative research is still necessary to ascertain information about assets,
background of the parties, basic information relating to the issues, and so on, to
ensure that any negotiations are conducted in good faith and that any settlement reached is as fair as possible. If a matter starts down the litigation path but
is referred by the court to mediation, the paralegal may assist in drafting such
documents as a motion for referral to mediation. If mediation becomes a reality,
the paralegal may help prepare a position paper to educate the mediator about
the case and if settlement is reached, the paralegal may prepare a settlement
agreement and any related documents.
Nonlitigation paralegals are often responsible for drafting agreement-tomediate clauses in real estate contracts and other commercial transactions.
As with arbitration clauses, preparation of such clauses requires research of
the ADR laws in the relevant jurisdiction.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
M E D -A R B
Putting It
Into Practice:
Do you think med-arb
is a viable form of
dispute resolution in
Shannons case?
A hybrid form of ADR created by combining mediation and arbitration is medarb. In this approach mediation is attempted first; if the parties fail to agree to
a settlement, the same neutral that facilitated the mediation conducts an arbitration. The obvious problem that arises in this case is that the so-called
neutral is no longer neutral, having heard information that could influence
the arbitration. On the other hand, the med-arb approach is efficient and cost
effective in that the parties present their evidence only once.
Some critics of med-arb point out that parties are less likely to fully disclose
information to a mediator who may then use that information against their interests in the arbitration. If, for example, a party during mediation admits that
it would be willing to accept a settlement of $10,000, the mediator turned arbitrator would then know that it could award $10,000 rather than the $20,000 being demanded by that party. If, on the other hand, the party failed to disclose
its bottom line during the mediation for fear of how this information might be
used in the event of an arbitration, the mediation process would be compromised and settlement would be less likely. By the same token, an arbitrator who
wanted to obtain referrals for future mediations/arbitrations would be reluctant to grant an award based on disclosures made during a mediation for fear
of the disclosing partys reaction. Therefore, the integrity of both the mediation
and the arbitration can be compromised when the two are combined.
The best use of med-arb seems to be with parties who like the cost savings and efficiency of this approach, who trust the integrity of the mediator/
arbitrator being used, and who stand in relatively equal bargaining relationship with each other, thereby minimizing the chances of one party manipulating the process to its advantage. Parties who feel they run the risk of being
outmaneuvered in this process are probably better advised to go through mediation and then a separate arbitration using a different neutral.
CHAPTER 6
S U M M A RY J U RY T R I A L
The only ADR approach that uses an actual jury is the summary jury trial. In
this approach the attorneys present an abbreviated version of the evidence;
live testimony may not be allowed. The jury is selected from an actual jury pool
using a modified voir dire process (generally only two peremptory strikes are
allowed). After hearing the summarized evidence, with each side being given a
short time, usually an hour or two, the jurors are allowed to deliberate and
asked to deliver a consensual verdict if possible. If consensus proves impossible, each juror is asked to submit separate and anonymous findings. Although
the jurys verdict is nonbinding (which the jurors may or may not be told), the
attorneys are encouraged to engage in a round-table discussion with the jurors
to gain some insights into how the jurors reached their conclusions.
To participate in this form of ADR, the litigants must have completed discovery and essentially be ready to go to trial. The attorneys must draft proposed jury instructions and submit trial briefs. A few days before the summary
trial, the judge hears motions in limine and rules on objections in advance. At
trial, objections are kept to an absolute minimum or are not allowed at all.
Summary jury trials seem to work best when only one or two key issues
are involved, the financial stakes are high, each party wants to go to trial and
is convinced that it will win, and a normal trial would probably take at least
one week to complete. After seeing the outcome of a summary jury trial, the
litigants are sometimes more willing to settle or to settle for a more reasonable
amount. Parties that stubbornly refuse to believe they could lose at trial become less recalcitrant when a verdict is rendered against them or they receive
an award that is substantially less than what they anticipated.
Even proponents of this approach, however, point out that summary trials
are not for everyone and will definitely not work until the parties are substantially ready to go to trial. Although one of the benefits of summary trials is the
reduction of trial costs (since a summary trial is substantially less expensive
than a regular trial), the costs can actually increase if the parties refuse to accept the jurys verdict and insist on going to trial. Sometimes, however, even
though the parties still go on to a full-length trial, that trial is shortened because the parties agree to limit the issues that must be tried. In short, the benefits of summary jury trials are that they expedite trials, reduce the cost of litigation, and help crystallize the issues that must be resolved.
A major criticism of summary jury trials is that because they present the
evidence in such an abbreviated manner, the jurors are left with an incomplete
picture and, therefore, their conclusion is inconsistent with the verdict that
127
128
Putting It
Into Practice:
Are there any ways
Shannon might benefit
from having a summary
jury trial? Would you
advise her to take this
route?
CHAPTER 6
would have been rendered had they been presented with all the evidence. Similarly, some point out that the jury is being asked to evaluate evidence based
on the attorneys presentation of that evidence, whereas they might decide differently if they were exposed to all of the actual witnesses.
Many states have adopted rules encouraging the use of summary jury trials. At the federal level, proponents maintain that the process is firmly rooted
in the Rules of Civil Procedure (particularly FRCP, Rule 16, which gives the judiciary the right to order litigants to attend pretrial conferences). Considerable controversy exists, however, as to whether judges can compel litigants to
use summary jury trials. Although most federal courts agree the process can
be mandated, those who disagree argue that the drafters of FRCP, Rule 16, intended judges to encourage litigants to explore nonadjudicatory procedures
but did not intend to require them.
Beyond the question of whether summary jury trials can be compelled is
the question of whether these proceedings are confidential or open to the public. Those who claim they are confidential maintain that this form of ADR is a
settlement technique that should enjoy the same protected status as other
settlement procedures. In contrast, those who argue against confidentiality
point out that civil matters are presumed to be open to the public and that doing so ensures the integrity of the process.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
M I N I -T R I A L
A process that shares some similarities with the summary jury trial is the minitrial. As with the summary jury trial, the attorneys prepare as if they were going to trial but then present their cases in an abbreviated fashion. Unlike the
summary jury trial, their case is put before party representatives who have the
authority to settle. Also unlike the summary jury trial, the mini-trial is a voluntary proceeding (not mandated by a judge) and the referee is usually an expert
in the matter at hand rather than a judge. Because of this setup the parties have
the freedom, as they do in mediation, to create their own solutions.
No exact format for mini-trials exists because the parties are encouraged
to create their own format. However, certain steps are taken in every mini-trial.
The parties agree in advance to the procedural rules, including the limits on
discovery, that will be followed. Live testimony can be presented but often is
not and the trial process is abbreviated, usually lasting less than one week. A
neutral third party serves as referee but representatives of the party decide
how the case will be resolved. If the parties fail to settle, the neutral may advise the parties of the strengths and weaknesses of their case.
As with summary jury trials, mini-trials help the parties focus on the key
issues of their case and help reduce the posturing in which parties typically
engage. Hence this process reduces the time and cost spent litigating relatively minor issues. Advocates of mini-trials point out that this form of ADR is
favored by business executives because it allows them rather than their attorneys to be in control of the dispute. Therefore, mini-trials are most successful when the parties have an ongoing business relationship that they
would like to continue. Mini-trials are not recommended when high emotional
CHAPTER 6
OTHER OPTIONS
Other options that exist as alternatives to litigation are private judging, neutral expert fact finding, and the ombudsman. With private judging the parties
agree to have a neutral, who is usually a retired judge, hear and decide their
case. This option gives the parties the power to select their own judge (including one who has expertise in the matter at hand), to schedule an expedited hearing, and to establish their own rules governing the procedure. This
process can occur outside the realm of the courts jurisdiction by private
agreement between the parties or can occur when a judge or the parties request a private judge. In the latter case, the so-called rent-a-judge statutes
require that the private judge follow the procedural requirements of a formal
trial and apply the law of that jurisdiction. The private judge must then submit his findings of fact to the presiding judge (the judge with whom the case
had been filed). The private judges decision is binding but can be appealed.
129
Putting It
Into Practice:
Are there any ways
Shannon might benefit
from having a mini-trial?
Would you advise her to
take this route?
130
Putting It
Into Practice:
Do you think Shannon
might benefit from any of
the ADR options described
in this section?
CHAPTER 6
Neutral expert fact finding can be voluntary (private and outside the
courts intervention) or involuntary (court ordered); in both cases it is nonbinding. A neutral with expertise in the question at issue is used to make recommendations. This approach is used to resolve complex disagreements in
the securities, patent, medical malpractice, and antitrust areas of the law. Such
proceedings tend to be very informal and of an investigatory nature. They focus on obtaining impartial feedback from someone whose expertise in the area
of question is respected by both parties. This process is sometimes followed
by an arbitration, mediation, or litigation.
A nonadjudicatory process that is used involves the use of an ombudsman,
who is accustomed to hearing disputes or complaints and recommending how
they might be resolved. Hospitals, corporations, and educational organizations
use ombudsmen to resolve employee as well as customer complaints. These
people work for the organization but report to the chief executive of the agency
and remain outside of the internal chains of command. Ombudsmen typically
engage in a wide range of activities, including mediation, arbitration, fact finding, counseling, problem solving, and information exchange.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 6
compliance with the resultant decision is greater with those who are given an
opportunity to participate in the decision making than those to whom the outcome is simply dictated. As mentioned earlier, those mediations in which the
mediator plays a nondirective role result in greater compliance than those in
which the mediator is more directive.
Another benefit of ADR is that the availability of the many varieties of ADR
allows parties to enjoy more flexibility than is found in traditional litigation.
They can choose from a simplified hearing process or can assert control over
the decision-making process through mediation. They can enjoy the privacy
and nonbinding nature of some forms of ADR, which allow them to air their
grievances simply and efficiently and still fall back on the traditional forms of
litigation if they so decide. All the preparation they put toward preparing their
case for ADR can be applied to litigation. Even when ADR fails, it can still simplify the litigation process and allow attorneys to prepare cases more efficiently and less expensively. It also helps parties avoid the uncertainty of litigation and provides them with remedies that are more flexible than typically
available in the judicial process.
Some are concerned, however, that ADR may force those who cannot afford to litigate to lose some of the rights to which they are entitled in litigation.
They point out that inexpensive and expeditious adjudication is not necessarily synonymous with fair and just adjudication. Because parties do not always possess equal power and resources, the concern is that informal
processes lacking procedural protection will result in ill-informed decisions.
These critics point to family law as one area where ADR may bring about a
second-class justice. They argue that the rights that women have gained during the 1990s may be lost if domestic relations disputes are pushed into ADR.
Although studies show that mediation program participants are often pleased
with the process and the results, divorce mediation raises concerns about
power imbalances between the mediating parties. Especially where there is a
history of domestic violence, the party being abused may feel incapable of negotiating on her own behalf. Critics of ADR believe that disadvantaged individuals benefit most from formal legal processes, that the more intimate ADR
processes may actually prejudice weaker individuals, and that even after
agreement is reached, judicial oversight may be necessary to protect the
weaker parties.
Despite the possibility of not protecting less powerful individuals, ADR often preserves relationships that might otherwise be severed after enduring the
travails of litigation. With mediation in particular, parties are able to communicate directly with another. After venting their feelings, they can then focus on
a rational cost/benefit analysis of the difference between litigating and settling.
In contrast, however, some point out that some disputes cannot be resolved by mutual agreement and good faith because these disputes reflect
sharply contrasting views about fundamental public values that cannot be
eliminated by simply encouraging disputants to understand each other. These
critics maintain that a potential danger of ADR is that disputants who seek
only reconciliation may ignore public values reflected in rules of law established by the legislature. Some controversies, they argue further, should be
brought to the publics attention. They feel difficult issues of constitutional or
public law and matters that affect large groups, such as pollution and corporate fraud, should be adjudicated to ensure the proper application of public
values. Environmental disputes, which they cite as illustrative of this problem,
are often settled by mediation. The danger, these critics maintain, is that environmental standards will be created by private groups without the democratic checks of governmental institutions.
One of the strengths of ADR is that it helps people focus on their real needs
and overcome perceptual differences. Neutrals who facilitate the ADR process
131
132
CHAPTER 6
Putting It
Into Practice:
What is your overall
assessment of ADR as an
option to litigation?
assist parties in realistically evaluating their case by pointing out its weaknesses. As a result, proposals suggested by these third parties can avoid the
knee-jerk negative reactions that might be precipitated by proposals suggested by the other party. Figure 61 summarizes the pros and cons of ADR.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Cons
Saves time
Saves money
SIDEBAR
Quality Control
ADR works only if the neutrals are well trained. The question then is What
kind of training should be required? Some believe that neutrals must have substantive expertise in the field in which the dispute arose, as do most arbitrators,
who are experts in their field and certainly more knowledgeable about the issue
at hand than the average juror. Others argue that a lack of substantive knowledge is an asset because the neutral will be less likely to prejudge the situation
(in an arbitration) or offer options (in a mediation). They point out that those
who opt for ADR can select another neutral if they believe the one they have
been assigned is unqualified, whereas litigators have little or no choice about
the judge they are given.
A corollary to the training issue is the question of whether ADR should be
regulated and, if so, by whom it should be regulated. Bar associations often see
themselves as best equipped to moderate ADR but nonlawyer facilitators often
see it differently. Their concern is that the legal profession will make ADR the
province of those with legal training and will strip ADR of its unique characteristics by making facilitators become mini-lawyers.
CHAPTER 6
L I M I TAT I O N S
OF
133
ADR
Even the most ardent supporters of ADR understand that ADR cannot be used
to resolve every controversy, ADR is not appropriate, for example, when one
party needs a judicial precedent. Without this legal guidance others in similar
situations will have no signpost by which to model their conduct. Certainly the
state of civil rights law would have been seriously compromised had all race
discrimination cases in the 1960s and 1970s been mediated rather than adjudicated. ADR is also inappropriate when there is a need to bind nonparties
(e.g., to establish title to property).
Some go one step further and contend that the courts should not be allowed to annex ADR. Putting ADR into the courthouse, they contend, makes
both ADR and the court processes more cumbersome. Even parties with cases
that ought to be adjudicated are forced into the time, expense, and apparent
irrelevancy of ADR.
On a more philosophical note, they argue that reformers of the legal system
have confused the purpose of ADR (reaching settlement) and the trial process
(vindicating rights, establishing societal norms, and determining fault). These
critics urge reformers to channel those disputes where settlement is the goal
into ADR and those where fault needs to be assigned or rights/norms established into the court system. Once the parties interests have been identified,
they suggest dispute resolution mechanisms be chosen that do not compromise the parties interests. Furthermore, they argue that the system should
consider the nature of the rights involved in the dispute and determine whether
the public has an interest in resolving the dispute. The sidebar below summarizes the questions that still remain unanswered in reference to ADR.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
SIDEBAR
Questions That Remain to Be
Answered About ADR
Can ADR programs be adequately staffed and funded over the long term?
Will litigants choose ADR in lieu of litigation or in addition to litigation?
What effect will ADR have on the judicial caseload?
Can we avoid second-class justice for the poor and disenfranchised?
How do we ensure that public law questions are resolved appropriately?
What criteria should we use to evaluate ADR programs?
Should neutrals have substantive expertise in the field in which they are
Putting It
Into Practice:
What do you think the
future of ADR is in this
country?
134
CHAPTER 6
hypothetical
o have you decided what you want to do? asked Allen when he called
Shannon a few days later.
Yes, Ive decided I want to go to trial. I thought about mediation but I really dont want to have to sit across a table from Collins. I dont think I could
stand to look at him. Every time I even think of his face I go through that
whole nightmare all over again. Shannon shuddered involuntarily just thinking about the possibility.
And youve eliminated arbitration as well? queried Allen.
Yes. I like the idea of a simpler, cheaper way of getting this whole mess
resolved but the bottom line is that I want to have a jury hear my story. I really think a jury would understand what I went through better than some arbitrator and Id rather take my chances with six to twelve people than one.
And the summary jury trial. . . .
I thought about that too and although I like having a jury I want them to hear
the whole story. I dont want to rush through it just so we can get done in a day.
Dont take it personally, but I dont want you telling my story. I want to be able to
tell it myself. Ive seen enough TV shows. I know what the defense attorneys will
try to do to me but I dont care. I want my day in court and I dont want to settle
for anything else, explained Shannon, emphasizing her last statement.
And that you shall have, declared Allen. We will prepare to go to trial.
So lets start talking about what you can expect after we get a trial date.
ETHICAL ETIQUETTE
ETHICAL RULES
FOR MEDIATORS
1.
2.
3.
4.
CHAPTER 6
135
ETHICAL ETIQUETTE
5.
6.
continued
7.
Advertising and solicitation: A mediator shall be truthful in advertising and solicitation for mediation.
8.
9.
PRACTICE POINTERS
Client Preparation
Preparing a client for ADR is important and yet is often overlooked by attorneys, some of whom do not really understand ADR processes. If you know
what clients must know and understand to more fully participate in the ADR
process of their choice, it will be easier for you to assist in preparing them. To
begin with, clients must know before entering into any kind of alternative
process what they want, what the dispute means to them, and the risks of entering into litigation. Clients must also understand the mechanics and benefits
of the ADR process and the role of each person in the process (including their
role, the attorneys role, and the role of the neutral).
Clients must be guided in realistically assessing the strengths and weaknesses of their case (something neither attorneys nor clients enjoy doing) and
in assessing what their best interests are, as opposed to their legal position.
Following this objective evaluation, clients must be made to consider the variety of possibilities that might settle the case and what would constitute a fair
settlement under the circumstances.
Although sometimes contrary to the instincts of the litigator, clients must
be instructed as to the importance of listening to the opponent with an open
mind and being willing to reevaluate their position on hearing their opponents
presentation. Beyond that, clients will benefit from learning the importance (in
some forms of ADR, such as mediation) of apology and listening empathetically.
At the very least, clients must be instructed not to insult or provoke the opponent or do anything that would unnecessarily jeopardize the possibility of settlement. Furthermore, clients must be forewarned to be patient and allow the
negotiation drama (of monetary offers, counteroffers, counter-counteroffers,
and so on) to unfold.
Finally, clients must be counseled to consider their best alternative to a negotiated agreement (BATNA) as well as worst alternative to a negotiated agreement (WATNA). Is the best alternative litigation? If so, what are the costs, risks,
and burdens associated with litigation? The BATNA drives parties toward offers
that are better than the best alternative and away from offers that are worse
than the best alternative. By the same token, if the WATNA is highly likely, even
slightly better offers are more attractive. The point is that parties are not fully
prepared to begin the ADR process until they know their BATNA and WATNA and
those of their adversary and are able to express them clearly.
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CHAPTER 6
TECHNO TIP
To find out the latest trends in commercial litigation, as well as to determine what
the American Arbitration Association has
to offer, go to their web site at www.
adr.com.org. The AAA also has a link to
the Federal Arbitration Act and the Administrative Dispute Resolution Act of
1996 and they have a listing of all the
various states arbitration statutes. You
can also visit the site of the Center for
Public Resources (CPR) at www.cpradr.
org. The CPR site has a list of more than
S U M M A RY
The primary forms of ADR used in this country are arbitration, mediation,
med-arb, summary jury trials, and mini-trials. Although ADR is relatively new
to mainstream Americans, it has been used by the Quakers, Puritans, Mormons, and Chinese and Jewish immigrants as a means of avoiding litigation.
ADR was first considered as a means of conflict resolution because some
thought it might be a solution to overburdened courts and the inaccessibility
of the judicial system to the poor and middle class. The status of ADR was
strengthened in the federal system by the passage of ADRA, which encouraged
the use of ADR by the federal government. Most district courts that have reviewed mandatory ADR provisions have found them to be constitutional.
Arbitration was one of the first forms of ADR to be used. It allows attorneys
to present their case to a neutral third party but saves the time and money required to go to trial. Arbitration can be mandatory or voluntary, binding or
nonbinding, and private or court annexed. Private arbitration typically arises
out of a contract clause requiring the parties to arbitrate disputes, whereas
court-annexed arbitration is usually dictated by statute. With private arbitration the award is usually binding and the parties must pay for the arbitrators
services. With court-annexed arbitration the award is usually nonbinding and
the parties can request a trial de novo; the parties do not have to pay for the
arbitrators services. Appeals are often discouraged, however, by requiring
fees or by holding parties liable for costs if they do not improve their position
at trial. Disputes involving contracts containing arbitration clauses will go to
private, binding arbitration, whereas matters filed in the courts governed by
statutes requiring arbitration will go to nonbinding, court-annexed arbitration.
The procedures for private arbitration are set forth in the contract requiring arbitration. Many contracts specify the use of AAA rules. Under these
rules arbitrators are selected from a list of names provided by the AAA. The
parties strike those names that are unacceptable, allowing the AAA to select
an arbitrator from the remaining names. Parties can also choose arbitrators
from private sources.
Arbitration can be initiated by one of the parties filing a motion to refer to
arbitration or a demand for arbitration, which the opposing party can dispute.
Court-annexed arbitration begins after the parties file their pleadings. The ar-
CHAPTER 6
bitrator determines how much latitude will be given in the discovery process
but motion practice is generally quite limited. Arbitrations are generally informal procedures in which the rules of evidence are used only as guidelines.
Because of the informality of the process and the lack of extensive discovery,
some feel that going into an arbitration is like playing blind mans bluff. Hearings follow the same outline as trials, beginning with opening statements and
the presentation of evidence, and ending with closing arguments and/or the
presentation of post-hearing briefs. They differ from trials in that they are
closed to the public.
Arbitrators usually take the matter under advisement but must render a
decision within a specified time period. Binding awards cannot be set aside except for specific misconduct on the part of the arbitrator. Courts reviewing
these decisions can decide only whether the award was valid and cannot retry
the issues.
Mediation allows parties to find their own way to resolution. The neutral
facilitates communication, assists in defining the issues, identifies possible solutions, and generally aids the parties in working toward compromise. The
level of directiveness of the neutral depends on the type of mediation being
used. The community and transformative models are very nondirective,
whereas the business model most often used when attorneys are involved encourages the mediator to be more participatory. Some studies indicate that
the latter approach results in a higher rate of settlement but that settlements
arising out of the less directive approaches are longer lasting.
Mediation is usually voluntary but can be mandated by contract or by the
court. Although attorneys need not be present, if one side is represented by
counsel, it is usually best for the opposing side to also be represented. When
attorneys participate in the mediation process, they must manifest different
skills than those required in litigation. Above all, they must keep in mind that
their primary function is to facilitate compromise, not to win.
The mediation process varies. Some mediators like to meet with the parties before the mediation and ask them to prepare position papers. Other mediators believe that any prior knowledge about the dispute makes it more difficult for the mediator to be neutral. Most mediators open the process by
establishing the rules, explaining their role and the process, identifying any
conflicts of interest, and encouraging the full participation of the parties. During the fact-gathering stage, the parties tell their stories and vent their feelings.
The mediator may then choose to caucus with the parties separately. Nothing
said during a caucus can be disclosed to the opposing party without consent
of each party. The mediator then helps the parties focus on the issues rather
than their positions and on what they want rather than what has happened in
the past. As the parties offer solutions, the mediator encourages them to assess the practicality and reasonableness of their proposals and if no solutions
are proposed may suggest some herself. If an agreement is reached, she clarifies the terms of the agreement, making sure that everyone understands what
the agreement is. Once the agreement is formalized, the mediator brings closure to the process.
A hybrid of arbitration and mediation, called med-arb, begins with a mediation, which, if it is unsuccessful, culminates in an arbitration. The same neutral serves as both arbitrator and mediator. One primary criticism of this approach is the tainted neutrality of the facilitator, which can potentially
compromise the integrity of both the arbitration and mediation. Efficiency and
cost effectiveness are the primary benefits of this process. Med-arb works best
when the parties have relatively equal bargaining power and trust the neutral.
Summary jury trials and mini-trials both provide means of presenting evidence in an abbreviated fashion and obtaining feedback from neutral third parties. With summary jury trials the evidence is presented to a jury with whom the
137
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CHAPTER 6
attorneys can engage in a round-table discussion after the jury has rendered its
verdict, or if no consensus is reached, after individual jurors have submitted
their verdicts. With mini-trials the evidence is presented to a neutral who is usually an expert in the question at hand. Summary jury trials work best when only
a few key issues are at stake, when a regular trial would last a week or more, and
when the financial stakes are high and each party is convinced it would win at
trial. They do not work unless the parties are substantially prepared to go to
trial, and they may result in a skewed outcome because the jurors do not get to
hear all of the evidence and what evidence they do hear is presented by the attorneys rather than the actual witnesses. Some controversy exists over whether
judges can mandate summary jury trials and whether the proceedings should
be open to the public. Mini-trials also assist the parties to focus on the key issues and to avoid the costs of conventional litigation. Business executives often
like this form of ADR because it gives themrather than their attorneyscontrol of the dispute. Mini-trials work best when the parties have an ongoing relationship they want to preserve and when no highly emotional issues are at
stake. They give parties their day in court and often encourage those who are
adamantly opposed to negotiations to see the value of settlement.
Other less popular ADR options include private judging, neutral expert
fact finding, and the use of an ombudsman. Private judging allows parties to
select their own judge, to schedule an expedited hearing, and to establish
their own rules to govern the procedure. Neutral expert fact finding is often
used when complex issues are involved and is frequently followed by arbitration, mediation, or litigation. Ombudsmen are used by hospitals, corporations,
and educational organizations to resolve employee and consumer complaints.
Paralegals must prepare cases going to ADR as if they were going to trial.
From the nonlitigation standpoint they may draft contracts with clauses requiring some form of ADR in the event of a dispute. With arbitration, they have
an opportunity to assist in the selection of arbitrators and in drafting demands
for arbitration and responses to those demands. Although paralegals cannot
become arbitrators unless they have expertise in a particular field, they can
become mediators. Good mediators must have excellent communication and
interpersonal skills, patience, a sense of caring, tolerance for human eccentricities, and a willingness to allow others to express strong emotions. Litigation paralegals also draft referrals to mediation and help prepare position papers and settlement documents. If the parties opt for a summary jury trial or
a mini-trial, the paralegal may be asked to prepare a summary presentation of
the evidence and must, therefore, have an intimate knowledge of all pertinent
documents and depositions.
KEY TERMS
Alternative dispute resolution
(ADR)
Arbitration
Binding
Court-annexed arbitration
Mandatory arbitration
Med-Arb
Mediation
Mini-trial
Neutral
Neutral expert fact finding
Nonbinding
Ombudsman
Private arbitration
Workshop Alert
None of the workshops deal with ADR.
Private judging
Summary jury trial
Transformative mediation
Trial de novo
Voluntary arbitration
CHAPTER 6
139
REVIEW QUESTIONS
1. How did ADR first appear in this country? How
is it being treated by Congress and the federal
courts today?
2. Identify the following forms of arbitration:
a. Private
b. Court-annexed
c. Mandatory
d. Voluntary
e. Binding
f. Nonbinding
3. How are arbitrators selected under the AAA
rules?
4. Describe the basic arbitration process. Explain
how it may be initiated, the precursors to the
hearing, the hearing process itself, and the procedures subsequent to the issuing of an award.
5. How does mediation differ from arbitration?
6. What are the various types of mediation?
7. Describe the various stages of a typical mediation.
8. What are the qualities of an attorney advocating
well for a client during a mediation?
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
140
(Answers in Appendix A)
CHAPTER 6
MULTIPLE CHOICE
d. the mediator makes sure that each party understands the terms of the agreement.
13. Attorneys who advocate in a mediation
a. should come across as humble and respectful in their opening statements.
b. must persuade the mediator that his client is
right.
c. should reserve ridicule and threats until an
impasse is reached.
d. must focus more on making sure that their
client is understood than on understanding
their opponents position.
14. Good mediators
a. are tolerant.
b. are interested in helping others solve their
problems.
c. know how to help people save face.
d. all of the above.
15. Med-arb
a. works best when the parties have unequal
bargaining power.
b. is cost effective but not efficient.
c. can be problematic because the same neutral is used for the arbitration and mediation.
d. uses a different arbitrator and mediator.
16. Summary jury trials
a. work best when the financial stakes are low.
b. allow attorneys to gain insights from how
the jury reached its verdict.
c. allow parties to go before a mock jury without having to actually prepare for trial.
d. are open to the public.
17. Mini-trials
a. allow parties to have their day in court.
b. are particularly useful for parties who are
adamantly opposed to settlement.
c. are favored by business executives.
d. all of the above.
CHAPTER 6
(Answers in Appendix A)
141
MULTIPLE CHOICE
18. Hospitals, educational organizations, and corporations often resolve customer and employee disputes using
a. ombudsmen.
b. neutral expert fact finding.
c. summary jury trials.
d. private judging.
19. The strength of ADR is
a. that it always reduces the cost of resolving
disputes.
b. that it always protects weaker parties.
c. that it always takes less time than litigation.
d. relieves court congestion.
20. ADR
a. is most appropriate when there is a need to
establish precedent.
b. is inappropriate when there is need to bind
non-parties.
c. can effectively be used to resolve every controversy.
d. is particularly effective when fault needs to
be assigned or rights need to be established.
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CHAPTER 6
TRUE OR FALSE
36. ADR was not used in the United States until the
early 1970s.
T F
38. ADR was initially perceived as a means of solving the problem of overburdened courts that
seemed to be inaccessible to the poor. T F
54. Some attorneys feel that going into an arbitration hearing is like playing blind mans bluff.
T F
40. Most district courts that have reviewed mandatory ADR provisions have concluded that those
provisions do not violate the constitutional
right to a jury trial.
T F
CHAPTER 6
143
84. Mini-trials and summary jury trials work best
when the litigants are still involved in the discovery process and not yet prepared to go to
trial.
T F
85. Summary jury trials are the most appropriate
form of ADR when the financial stakes are low
and several key issues are involved.
T F
86. Summary jury trials reduce the cost of trial even
if the parties refuse to accept the jurys verdict
and go to trial.
T F
87. The conclusion of a summary jury trial can be
inconsistent with the verdict that would have
been rendered if the jury had been able to hear
all of the evidence.
T F
88. Judges have an undisputed right to mandate
summary jury trials and to open them to the
public.
T F
89. The neutral in a mini-trial is usually a retired
judge.
T F
90. Parties are encouraged to create their own format for a mini-trial.
T F
91. Business executives favor mini-trials because
they, not their attorneys, decide how the case
will be resolved.
T F
92. Mini-trials are most appropriate when high
emotional stakes are involved and when an individual is suing a company.
T F
93. Paralegals typically have very little involvement
in summary jury trials and mini-trials because
the presentation of evidence is so abbreviated.
T F
94. With private judging parties can select their
own judge, schedule their own hearing time,
and establish their own procedural rules.
T F
95. The neutral expert fact-finding process is used
most frequently in complex cases because experts in the field in question are used to make
recommendations to the parties.
T F
96. Ombudsmen are successful in resolving disputes for organizations because they are employed outside of those organizations. T F
144
CHAPTER 6
103. Neutrals are required to have substantive expertise in the field in which they are serving as
a neutral.
T F
98. Allowing people to participate in the decisionmaking process may actually increase the likelihood of them complying with the resultant
decision.
T F
105. ADR is inappropriate when a judicial precedent is needed or when non-parties need to be
bound by a decision.
T F
106. Some believe that courts should not be allowed to annex ADR.
T F
107. Some believe that cases where rights need to
be established or fault assigned should be
channeled into ADR whereas those cases
where settlement is the goal should be channeled into litigation.
T F
LITIGATION LINGO
(Answers in Appendix A)
Fill in the missing letters.
1. __ E __ __ V __
New trial
2. __ __ B __ __ S __ A __
3. __ E __ __ R __
4. __ __ A __ __ F __ __ __ A __ __ __ __
5. __ __ N __ __ N __
6. __ __ D __ __ T __ __
7. __ __ N __ - __ __I __ __
8. __ __ M __ __ __ Y __ __ __ Y
9. __ R __ __ T __ __ T __ __
10. __ N __ __ X __ __
CHAPTER 6
145
LITIGATION LOGISTICS
(Answers in Appendix A)
1. Would you suggest using ADR in any of the following cases and, if so, which form of ADR
would you suggest and why?
a. Drunk driver sideswipes your car.
b. Tenant stops paying rent and refuses to
move out.
c. Karate instructor breaks your nose.
d. Cousin refuses to pay you a percentage of his
business.
e. Contractor does shoddy work on house.
2. Check the local rules for arbitration in your jurisdiction and answer the following questions:
a. What cases are eligible for arbitration? Is arbitration required or voluntary in these
cases?
b. What are the requirements to be an arbitrator?
c. What process is used to select arbitrators?
d. Where are arbitration hearings held?
CHAPTER
ROAD MAP
OF A LAWSUIT:
PRETRIAL
PRACTICE, TRIALS,
AND JUDGMENTS
OBJECTIVES
In this chapter you will learn:
What procedural steps must be taken
148
CHAPTER 7
hypothetical
his is the time set for trial in the matter of Martin versus Collins, et al.,
case number 97-770 civil. Is the plaintiff ready?
Allen Porter felt his heartbeat accelerate as he rose from his chair. After
twenty years of trying cases, he had long ago conquered his youthful tendency
toward stage fright, but, even now, there was something about the beginning
of a federal court trial that shot a bolt of adrenaline into his gut. It would pass
quickly, though. He smiled reassuringly at Shannon, who was seated beside
him at the plaintiffs counsel tableby tradition, the one nearest the jury box.
Plaintiff is ready, your honor.
Light years beyond ready, thought Shannon, as she regarded Judge Lewis
with a steady gaze. A year of paperwork, depositions, hassling with the hotels lawyers, assembling evidence, and even then, it had taken another six
months of procedural maneuveringAllen Porters wordsto finally drag
the defendants into court for trial. What kind of system was this, anyway?
Allen Porter had warned her that getting everything ready for trial would
not be easy, but, at the time, buoyed by the judges decision denying the hotels motion for summary judgment, she had optimistically assumed that the
worst was over. How hard can it be? she remembered asking Chuck
Fletcher. Chuck hadnt answered.
GETTING
TO
TRIAL
How hard can it be? At the risk of repetition, litigation is a contest between adversaries. Once trial begins, it is highly likely that, in a few days or weeks, there
is going to be a judgment for one side or the other. In a lawsuit, plaintiff is asking the court to take a positive actionusually, order the defendant to pay
plaintiff money. What defendant wants, however, is for the court to do nothingto leave things the way they are. One way for defendant to achieve this
goal is to win the case and get plaintiffs claims dismissed. But often a perfectly
acceptable alternative is simply to drag the proceedings out for as long as possible. There can be no judgment for plaintiff as long as there is no judgment!
Barring a successful motion for summary judgment, there can be no judgment
as long as there is no trial.
What, exactly, is a trial setting? What do you have when you have one? The answers to these questions are not as simple as you might suppose.
Superficially, a trial setting consists of a minute entry specifying a date,
time, and place for trial. Ideally, the date would be firm and unchangeable, and
once the trial setting has been issued all parties could depend on going to trial
as scheduled. Few if any courts operate that way, however. In practice, courts,
like airlines, nearly always overbook their reservations, and may schedule
as many as a half dozen cases for trial at the same time before the same judge.
Otherwise, judges would be sitting around with nothing to do every time a
case settled on the courthouse steps, which occurs more often than not.
Moreover, there are plenty of ways in which a trial setting can be vacated
or postponed, even at the last moment. Attorneys, parties, witnesses, or even
the judge can get sick or injured. Attorneys can be ordered to trial at the same
time in other cases having a higher priority in the court system. Judges can be
CHAPTER 7
transferred to a different division, or retire, or take vacations. Surprise evidence or witnesses can come to light at the last minute, requiring additional
preparation time. The trial that the judge is hearing just before yours can drag
on unexpectedly for a few extra days, wiping out your allotted time slot. A defendant can file for bankruptcy, bringing all proceedings in any lawsuits involving that defendant to a standstill. Judges can and do grant continuances
and vacate trial dates for all of these reasons and many others. In many courts,
it is a rare case that actually makes it to trial on the first setting.
So how does one obtain this minute entry designating a trial date, however
firm or unfirm it may be? The court issues it in response to some triggering
event, which varies from court to court. Some courts set cases for trial automatically when the filed pleadings or discovery reach a certain stage, or do so
early in the case as a part of a scheduling order. In others, the triggering event
is the filing of a motion to set and certificate of readiness by any party. A motion to set is typically a one- or two-page printed form and informs the court
how many trial days are needed, whether a jury trial is demanded, and any
other information that the calendar clerk needs in order to schedule the necessary block of time.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
149
Putting It
Into Practice:
What rules govern the
setting of trials in your
state?
150
Putting It
Into Practice:
Who will prepare the
pretrial order or
statement in Shannons
case? What information
will this order or
statement contain? What
will Allen Porter attempt
to achieve as he prepares
this order/statement?
CHAPTER 7
Specifically, how does the pretrial statement or pretrial order set the
boundaries of what is allowed at trial? First, it sets out an agreed list of witnesses and documents that can be used at trial. In most courts, the rules require that plaintiff and defendant furnish each other with a list naming every
witness that each may attempt to call to testify at trial. The parties must also
exchange copies of every document that they may wish to offer in evidence as
an exhibit. Typically, the deadline for this exchange of witness and exhibit lists
is set weeks or months in advance of trial, so the information necessary to include final lists in the pretrial statement should be readily availableat least
in theory.
This pretrial listing of documents saves a good deal of trial time, because
the rules require each party to specify in the pretrial statement any known objections to a particular exhibit. If a document is listed and no objections are
specified, that document will be admitted at trial without further debate. Often, a document may be technically objectionablethere may not be a witness handy to testify that the signature on a letter is authentic, for example,
even though everyone knows that the letter is authentic and can be proven authentic by wasting half an hour dragging the person who wrote it as a witness
to testify, Yes, I wrote this. Judges have ways of getting even with attorneys
who are determined to stand on ceremony by raising trivial objections, so
there is a strong incentive to limit document objections to the important ones.
Next, the pretrial order includes lists of issues of fact and issues of law to
be decided at trial. These lists of issues must be written with care, because the
pretrial statement supersedes the pleadings at trial; the court may refuse to allow evidence that is outside the scope of the issues listed in the pretrial order.
The pretrial order is the end product of all the honing and shaping of issues
all the responsive pleadings, motions for summary judgment, amended pleadings, legal research by both sides, discovery, investigationit all comes together here.
Naturally, the parties do not always agree on what the issues are, or how
they should be worded, or whether a given document is admissible as an exhibit. The pretrial order has separate sections in which each party can stake
out his or her own positions on any disputed issues. The rules encourage the
attorneys to compromise on such things to the extent reasonable, however,
and judges do not appreciate being handed proposed pretrial orders in which
each party has insisted on his or her own wording of every issue, however trivial. The goal is for the attorneys to cooperate in defining the issues in such a
way that the trial can concentrate on the questions that are seriously in dispute; see FRCP, Rule 16.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
CHAPTER 7
ones own office, than in open court in front of the jury. Cross-examination of opposing witnesses should be outlined, question by question. Opening and closing arguments should be written out or outlined, rehearsed in the presence of
others, and adjusted as needed. It is true that not all lawyers take such great
pains in every casethe expense is not always justifiedbut every well-tried
case is, to a great degree, scripted and rehearsed in advance.
Before the trial can begin, several items of unfinished business with the
judge must be resolved. These are usually handled on the day the trial is to begin, or a day or two before.
151
152
Putting It
Into Practice:
For what reason might
Allen Porter not want to
file a motion in limine
regarding the
admissibility of Arnie
Trevaynes conversation
even if he knows Gail
Stoddard has not filed
such a motion?
Putting It
Into Practice:
What jury instructions do
you anticipate Allen
Porter and Gail Stoddard
will disagree on?
CHAPTER 7
CHAPTER 7
Preparation of ExhibitsBy the time the trial date arrives, the attorneys
should know precisely what documents each side may use as exhibits during
the trial. Many courts, as already noted, mandate an exchange of exhibits well
in advance of the trial date. Even in courts that do not require copies of exhibits to be delivered to opponents as a matter of course, any competent litigator automatically sends out a set of interrogatories and a request for production of documents requiring the opposing party to identify and supply
copies of all trial exhibits. (In practice, particularly in cases involving massive
quantities of documents, corners tend to be cut in document discovery responses, so it may still be necessary for the attorneys to hash out the final exhibit list at the last minute.)
How are these exhibits readied for use at trial? There are two important considerations. The first is admissibility: The law of evidence imposes various requirements, depending on the type of document and its source. At a minimum,
for example, all documents to be used as exhibits must be proven authentic;
that is, a witness must testify that the document is what it appears to be and not
a forgery. To save time, judges prefer that the attorneys stipulate to the admissibility of all documents except those few that they have a serious basis to challenge, and it is common for the pretrial order to include such stipulations. The
point is that by the time the trial starts, each attorney (or the paralegal in charge
of the exhibits) should have checked off each individual document and made
sure that whatever is required to have it admitted in evidencebe it a stipulation or a witnesss testimonyis in place and ready to be presented.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
The second consideration is the physical handling of the documents themselves. In times past, and even now in rural courts or in small cases, introduction of an exhibit at trial required a time-consuming ritual in which the document would be first handed to the clerk for marking with an exhibit number,
then passed around for the opposing lawyer and perhaps the judge to examine,
and only then shown to the witness to be identified. In busy metropolitan court
systems, where the exhibits in many civil cases may number in the hundreds,
153
154
CHAPTER 7
judges will likely require the attorneys to bring in their exhibits before the trial
starts, so that the clerk can mark them and list them in advance. Either way, all
exhibitsthe physical documents that will actually be used at trialmust be
readied and organized so that each can be located quickly when needed in the
hectic atmosphere that may prevail in the courtroom during trial.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
What evidentiary exhibits
would you expect Allen
Porter to introduce at
trial? If he asked you to
prepare these exhibits for
trial, what would you do?
What demonstrative
evidence might Allen
Porter use to build
his case?
CHAPTER 7
in the sense of making sure that all the necessary props are present at the
right time.
This practical side of trial preparation requires well-developed organizational skills: the ability to make checklists and keep track of the myriad details
that must all come together at the start of trial.
T RY I N G
THE
CASE
The last week or so before a trial begins is a hectic time for trial lawyers and the
paralegals, secretaries, and junior lawyers who work under their direction.
Working hours lengthen as the simplest tasks develop unforeseen complications, and at times it seems as though a platoon of lawyers working twenty-four
hours a day could not get the job done in time. Not every lawyeror paralegal
is cut out for the pressures of trial work!
During this time, in addition to preparing the witnesses, rehearsing the arguments, and attending to all paperwork, the opposing lawyers are usually negotiating intensively in an effort to reach a settlement. The reason is simple: It
costs a great deal of money to try a civil suitoften in the thousands of dollars per day for attorney fees alone. Better to spend the money on a settlement
that makes the case go away forever than to spend it on a trial that you might
lose (see sidebar below).
SIDEBAR
Meanwhile, Back at the Negotiating Table
Of all the civil lawsuits filed in federal court in a year, what percentage
would you guess eventually reach trial, and how many are settled before trial?
The answer for tort cases appears at the end of this sidebar.
To settle a case means that the parties agree to end their dispute. Usually,
the defendant agrees to pay plaintiff an agreed sum of money in return for
plaintiff voluntarily dismissing the suit. Parties are free to settle their cases at
any time if they can reach an agreement acceptable to all concerned.
If it surprises you that so many cases are settled, consider this: How much
would you guess that it costs to file an average, garden-variety civil suit, prepare it for trial, and try the case? The answer naturally depends greatly on the
complexity of the case, the vigorousness of the defense, and the price of legal
talent in your locality, but you can probably buy a new luxury car for less than
the cost of even a relatively inexpensive lawsuit.
Given the broad factual outlines of a case, experienced litigators can usually estimate fairly accurately the probability of the plaintiff winning or losing
and the approximate range of the likely verdict if plaintiff does win. If both sides
attorneys reach similar estimates of the probable outcome, it is far better to take
a shortcut to that outcome by settling than to spend huge sums litigating to
reach the same end result.
Experience teaches that cases most often settle either in the early stages, just
after the complaint is filed, or else at the time of trial. It is not a coincidence that
the filing of suit and the beginning of trial are the two times when parties are
most painfully aware that continuing the dispute is going to put a big dent in
both sides wallets.
(Answer: Of 96,284 tort cases filed in federal court in fiscal year 199697,
only 3,023, or 3 percent, ended in a trial and verdict.)
155
Putting It
Into Practice:
Suppose Allen Porter has
never used a paralegals
services. You are
interviewing with him for
a job. Explain how you
could assist him in
preparing for trial.
156
CHAPTER 7
On the morning of the first day of trial, the judge begins by holding a conference with the attorneys, probably in chambers. In part, this meeting is to tie
up any remaining loose ends, such as checking that all pending motions have
been decided, discussing the scheduling and order of presentation of witnesses, going over the pretrial order, perhaps working on jury instructions.
Here, too, the judge has an opportunity to express any individual preferences
about the way the trial is to be conducted. Increasingly, judges also take advantage of the chance to twist the parties arms and encourage them to settle.
The formal commencement of trial occurs in the courtroom. A court reporter is present and, using a shorthand machine, will take down every word
spoken until the trial is over. The judge or the clerk calls the case by number,
and the judge asks first whether the plaintiff is ready; then whether defendant
is ready (both had better be!).
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
JURY SELECTION
The first task in a jury trial is to select a jury. The procedure for accomplishing this varies considerably from one court to another. The details often depend in large part on the preferences of the individual judge, so referring to
the local rules of procedure may not yield many answers; it may be necessary
to also consult the judges staff. The broad outlines are these: First, a predetermined number of prospective jurors are sent into the courtroom; the number depends on the local customs and the type of case. These are ordinary citizens who have been drawn at random from voter registration lists, drivers
license records, or some other public source, and sent jury summonses ordering them to appear on this date for jury duty. Each prospective juror has
filled out a questionnaire; the resulting information, typically including such
things as education, occupation, and previous involvement with the court system, is given to the attorneys.
The purported goal of jury selection is to start with a sizable panel of
prospective jurors who comprise a broad cross-section of typical citizens,
weed out those who the judge or the attorneys think may not be able to act
fairly and impartially, and end up with the required number of jurors to decide
the case. (How many? Traditionally, there were always twelve, but nowadays,
to cut costs and save time, more likely six or eight plus an alternate or two.)
The real goal of the attorneys is, of course, somewhat different: A trial attorney wants a jury composed not of the fairest jurors, but of the ones most likely
to find in her clients favor.
The first step in the weeding-out process is to ask the prospective jurors
questions about their backgrounds and about any feelings or beliefs they have
that may interfere with their ability to follow the judges instructions. This
questioning is called voir dire. There is considerable variation in voir dire customs from one court to another. In some courts, the attorneys must submit all
voir dire questions beforehand, and the judge addresses the questions to the
jurors; in others, attorneys are given great freedom to buttonhole individual
jurors and ask them pointed questions about their personal habits and prejudices. Where attorneys are allowed to conduct their own voir dire, part of the
strategy is to craft voir dire questions that are really thinly disguised argu-
CHAPTER 7
157
ments designed to get a jump start on selling the jury on the merits of their
cases: If the evidence shows that Banbury Park Hotel, by failing to maintain
the door locks properly, set in motion the chain of events that led to Shannon
Martin being injured, is there any reason why you could not vote to grant her
a substantial sum of money to fairly compensate her for those injuries?
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
What type of juror will
Allen Porter be looking
for? What type of juror
will Gail Stoddard be
looking for?
158
CHAPTER 7
SIDEBAR
Trials to the Court
Not all trials are jury trials. Plaintiff may fail to demand a jury trial in time;
both parties may agree that a jury is not needed; or the case may be of a kind
for which there is no right to a jury trial (i.e., divorce).
In a nonjury trial, the judge takes over the function of the jury and decides
both the factual issues and the legal issues. Naturally, there is no need for jury
selection. Nor will there be jury instructions. The lack of jury instructions poses
a potential problem: Without jury instructions, how will we know what rules of
law the judge used to decide the case? More to the point,how will we appeal if
the judge applied the wrong rules? The rules of procedure offer a solution: FRCP,
Rule 52(a), requires the judge in a nonjury case to make findings of fact and
conclusions of law. That is, the judge will sign a court paper listing each of the
factual and legal findings on which the judges decision is based. In practice, before announcing a decision, the judge will order both plaintiff and defendant to
submit proposed findings. The judge will adopt the proposed findings of the
winning party (perhaps with modifications).
Putting It
Into Practice:
Why do you think Allen
Porter opted for a jury
trial in Shannons case?
Judges often relax the formal rules of evidence in nonjury cases. Juries are
(supposedly) not allowed even to see or hear evidence that is inadmissible. The
judge, however, presumably has the training and impartiality to be able to resist being swayed by improper evidence. In nonjury trials, judges become cranky
when attorneys insist on wasting time by constantly jumping to their feet with
objections. For similar reasons, it is not uncommon for judges to encourage
the attorneys to skip making closing arguments in nonjury cases. The judge may
ask for a written argument instead.
In a jury trial, the verdict is the jurys and is announced immediately after
the jury finishes deliberating. In a nonjury trial, the verdict is up to the judge,
and it is common for judges to take the matter under advisement and inform
the parties of the verdict by minute entry latersometimes weeks later.
OPENING STATEMENTS
Next on the agenda are the opening statements. Each attorney makes what
amounts to a speech, giving the jury her clients version of the facts. Plaintiffs
attorney goes first; defendants attorney can reply immediately, or wait until it
is defendants turn to start calling witnesses.
This is not a time to present argument. Allen Porter may, in his opening
statement, describe the evidence he intends to present; he is free to read to
the jury from the complaint or answer; and he may tell the jurors what he will
be asking them for at the end of the case. He may not, however, launch into impassioned oratory about, say, how dangerous the world is for women traveling alonethat sort of speech-making must be saved for closing argument.
Most attorneys use their opening statements simply to tell their clients
CHAPTER 7
storywhich will hopefully be the same story that the evidence will tellin
the most sympathetic and persuasive way possible.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Wednesday morning, 9:30 A.M. Allen Porter sat at the plaintiffs counsel
table, immersed in his notes, oblivious to the activity around him. Chuck
Fletcher was bantering with Shannon about the Phoenix Suns, keeping her
distracted, making sure Allen could concentrate without interruption. At the
defendants table, Gail Stoddard was searching through a pile of documents
with one of her paralegals, while at the same time fielding questions from the
Park Hotels vice president who was here to speak for the corporation. The
door adjacent to the jury box opened, and the jurors followed the bailiff into
the courtroom and found their seats. In the gallery, spectators sat or stood in
small groups, conversing quietly.
All rise. Porter reluctantly put down his note pad as the judge entered.
The judge settled himself comfortably in his chair; it was going to be a long
morning. He turned to the jury. Good morning, ladies and gentlemen. It is
now time for the opening statements. In their opening statements, each of the
attorneys will tell you what he or she believes the evidence will show. First,
plaintiffs attorney, Mr. Porter, will speak to you; then Ms. Stoddard will speak
for defendant Park Hotels Group; finally, Mr. Yarborough will give you the
point of view of defendant Dr. Collins. I instruct you that opening statements
are not evidence, they are merely the attorneys explanations of what they expect to prove. The judge turned to Allen Porter. Mr. Porter, you may begin.
Thank you, Your Honor, Allen Porter said, as he rose, picked up his
notepad, and strode confidently over to the lectern. Making eye contact with
as many of the jurors as possible, he began. Ladies and gentlemen, here is
what the evidence will show: My client, Shannon Martin whom you see
seated here, was in Las Vegas for a series of business meetings. . . .
What would you say to the jury in your opening statement if you represented Shannon? If you represented Dr. Collins? The hotel? Although paralegals do not ordinarily get to make opening statements in jury cases, an understanding of what is involved will allow you to help your supervising attorney
write, rehearse, and polish the opening statements to be given in the cases on
which you are assisting.
PRESENTATION OF EVIDENCE
Now comes the main event: the presentation of each sides case. This is done
in turns, in the familiar, three-step pattern: plaintiffs case is first, defendants
case is second, and finally plaintiff is given a chance to rebut defendants case.
What does a partys case consist of? Witnesses. A trial consists of questioning witnesses, one after the other. Documents and other exhibits can of course
be used, but they are presented via the testimony of witnessesthe witness
identifies, describes, and reads from the document. An example of how documents are introduced appears in the trial transcript excerpt from our hypo
presented later in this chapter.
Plaintiffs CaseAfter the opening statements, the judge instructs plaintiffs attorney to call the first witness. The witness comes forward, is asked to
159
Putting It
Into Practice:
Why do you think
opening arguments are
so vital to a successful
outcome?
160
CHAPTER 7
SIDEBAR
Links in a Chain
To understand the parties procedural objectives in a trial, you may find the
following metaphor instructive: Imagine that each of plaintiffs theories of liability is a chain, which plaintiff will use to hoist the huge sum of money that
plaintiff hopes to win. To win the lawsuit, plaintiff must construct at least one
complete chain sufficiently strong to lift the load. Each chain has one link for
each element of that cause of action.
Thus, for a cause of action for negligence, there will be four links in the
chain: one labeled duty, one labeled breach of duty, one labeled causation, and one labeled damages. Plaintiffs goal is to have a chain made of
those four links at the end of the trial. During plaintiffs part of the trial, plaintiff must make each link by putting on at least some evidence supporting each
element. If plaintiff has not done so by the time plaintiff finishes putting on
witnessesthat is, if the chain is missing a linkthen the judge will grant a
motion for a directed verdict, and plaintiff will lose then and there as to the
cause of action for negligence.
During defendants part of the trial, defendant will try to cut, or at least
weaken, plaintiffs chain. If defendant can present enough evidence to cut even
one of the links, and plaintiff is unable to repair the damage, that chain is broken and plaintiff will lose (as to that cause of actionplaintiff may have other
chains, of course). After defendant has had a turn, plaintiff gets one more
chance to repair any links that defendant has managed to cut or weaken. This
is the final phase of trial, called rebuttal. During rebuttal, plaintiff cannot delve
into new areasno new links are allowed during rebuttalbut plaintiff can
call witnesses to attack or contradict the evidence that defendant put on during
defendants case.
If at the end of the trial it is clear that plaintiffs chain has all of its links, the
judge will grant a directed verdict for plaintiff; if it is clear that one or more links
has been cut, the judge will grant a directed verdict for defendant. Finally, if it
is uncertain whether all of the links in plaintiffs chain have held up under defendants attacksthat is, if reasonable jurors could disagree about whether the
evidence supports each of the elements of the cause of actionthe judge will
submit the cause of action to the jury for decision. In an actual trial, of course,
there is usually more than one cause of action. In such a case, the judge will simply test plaintiffs chains one cause of action at a time. For example, the judge
may direct a verdict on one cause of action and let another go to the jury for
decision.
In theory, the jury will test each of the links in the chain, and find for plaintiff if and only if the evidence supporting each link is more than fiftyfifty in
plaintiffs favor. In practice, jury deliberations are seldom so analytical; once the
case is submitted to the jury, fairness and common sense are likely to play a more
important role.
take the familiar oath to tell the truth, the whole truth, and nothing but the
truth, and takes a seat on the witness stand to the side of the judges bench.
Plaintiffs attorney examines (that is, questions) the witness first. Because
plaintiffs attorney is examining a witness that he himself called to the stand,
this is direct examination. When plaintiffs attorney finishes, defendants attorney has a turn. This is cross-examination: Because defendants attorney is
questioning a witness called by an opponent (and therefore presumed to be
CHAPTER 7
161
SIDEBAR
Limitations on Scope
Scope refers to the subject matter covered during the examination. In direct
examination, an attorney is free to ask about any aspect of the case. In some
courts, however, cross-examination questions must be limited to the scope of the
direct examination. In other words, the cross-examining attorney may not ask
questions on subjects that the direct examination did not get into. Why? If the
scope of cross-examination were unlimited, as it is with direct examination,
there would be nothing to stop the defendant from putting on his entire case by
cross-examining plaintiffs witnesses. The result would be both parties putting
on their cases simultaneously, one witness at a time, instead of the intended sequence of plaintiffs case first, defendants case second.
Not all courts limit the scope of cross-examination. Almost all, however,
limit redirect examination to the subjects raised during cross-examination unless there is some compelling reason to do otherwise. Here, the purpose is to force
the attorney who calls the witness, to ask all the questions he has for that witness, all at once, rather than piecemeal.
Who decides which witnesses to call, and in what order? This part of the
trial belongs to plaintiff, so plaintiffs attorney decides. Cooperative witnesses
will show up voluntarily; it is up to plaintiffs attorney (or paralegal) to stay in
contact with them as the trial progresses and make sure that each witness arrives in time to testify when needed. Plaintiff can also call uncooperative or
hostile witnesses. To do so, subpoenas are issued and served, ordering them
to appear at court. Plaintiff can even call the defendant as a witness; one not
uncommon tactic is to call the defendant as the first witness, thereby depriving defendant of the chance to listen to all of plaintiffs witnesses and adjust
her story accordingly; see, however, FRE, Rule 611(a).
Before the questioning begins, either side may ask the judge to put witnesses under the rule. The judge will then order that all witnesses who are
not parties to the suit must remain outside the courtroom and must refrain
from talking with anyone about the case, except while actually testifying. The
purpose is to preclude witnesses from being able to change their testimony in
response to what other witnesses are saying. The parties themselves are entitled to remain in the courtroom during the entire trial; parties cannot be put
under the rule. Also, many judges allow each party to select one person, who
may also be a witness, to remain in the courtroom to assist the attorney during trial; see FRE, Rule 615.
Plaintiff must, at a minimum, establish a prima facie case for each theory
of liability. A prima facie case means that at least some credible evidence has
been presented in support of each element of the cause of action in question.
(If you have forgotten exactly what the concept of elements of a cause of action entails, please reread the sidebar on that subject in Chapter 3.) In terms
of the links in a chain metaphor (see sidebar), putting on a prima facie case
Putting It
Into Practice:
How would you as a
paralegal assist Allen
Porter in working with
witnesses in Shannons
case? Why might it be
important to educate
those witnesses about
how to be effective
witnesses?
162
CHAPTER 7
SIDEBAR
Putting It
Into Practice:
Why do you think
witnesses are generally
advised to keep their
answers short and to the
point when being
questioned?
means putting on at least some evidence establishing each of the links. That
is, the links need not necessarily be very strong to make a prima facie case, but
no link can be missing entirely.
CHAPTER 7
putting on evidence in support of some element of one of the causes of action for which plaintiff is suing, defendant may make a motion for a directed
verdict as to that cause of action. If the judge agrees with defendant, that
cause of action will be dismissed, and plaintiff will loseas to that particular cause of action. Therefore, before resting, a wise plaintiffs attorney reflects carefully to be sure that each of plaintiffs chains has all of its links; see
FRCP, Rule 50.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
If there are motions to be heard, the jury will leave the room and return
when defendant is ready to begin calling witnesses. If not, defendants case
may begin immediately, or the judge may allow a recess to give defendants attorney a short time to prepare. Some plaintiffs attorneys prefer to rest near
the end of the trial day, making it likely that defendant will not be able to begin until the following day; then the jury will have the whole night for plaintiffs
case to sink in, with no interference from defendants evidence. Most lawyers
like to time their presentations so that the last thing on the jurors minds at
the end of the day is some strong and favorable bit of evidence.
Excerpts from the reporters transcript of the trial in Martin v. Collins:
Direct examination of Shannon Martin:
Q. (By Mr. Porter) Now, before all of this happened, had you locked the
door to your room?
A. Yes.
Q. When and how did you do that?
A. Well, the doorknob was the kind that locks itself as long as you dont
turn the button on the inside to unlock it, which I didnt do. And when
I got back from dinner, I went into my room, and closed the door, and
I also checked to be sure it had locked.
Q. How did you do that?
A. I tried to turn the knob and it wouldnt turn, and I pulled out on it, and
the door wouldnt open. It was locked.
Q. Did you open the door at any time after you got back from dinner and
before you saw an intruder at the foot of your bed?
A. No. Not only that, I checked it again before I went to bed.
Q. How did you do that?
A. Same way, tried to turn the knob, tried to pull out on the knob. . . .
__________
Cross-examination of Shannon Martin:
Q. (By Ms. Stoddard) Now, you have already testified that you did not set
the chain, isnt that right?
A. Yes, thats right, because I
Q. Are you aware that there was a printed notice attached to the inside
of the hotel room door?
A. Yes, I know there are some instructions, I think about putting your valuables in the hotel safe, and
Q. Did you read the notice?
163
Putting It
Into Practice:
What should the hotel do
if it thinks Shannon has
failed to prove that the
hotel contributed, in any
way, to her injuries? What
will be the consequence if
the judge grants the
defendants motion for a
directed verdict?
164
CHAPTER 7
A. As I recall, you know, Ive certainly read those notices before. I dont
necessarily read it every time I stay in a hotel. In my job, I was traveling a lot, and
Q. So you feel you are familiar with what the notice says?
A. Yes.
Q. Doesnt the notice specifically instruct you to set the chain?
A. Im not sure. Probably.
Q. Doesnt it tell you to do that for your own safety?
A. I guess so.
Q. But you decided to ignore that advice?
A. As I said, I read somewhere that
Q. Excuse me, Ms. Martin, my question is, you decided to ignore the specific instructions on the notice? Yes or no?
A. Well, I guess, yes. But
Q. Thank you Ms. Martin. No further questions, Your Honor.
Direct examination of Dr. Arthur Collins:
Q. (By Mr. Porter) And then what happened?
A. I got out of the elevator on the fourth floor and went to my room, or
what I thought was my room.
Q. Was it your room?
A. No.
Q. Whose room was it?
A. It was Ms. Martins room.
Q. Did you intend to enter Ms. Martins room?
A. No, of course not. I thought it was my room. And, of course, the key
opened the door.
Q. Now, tell us exactly how you opened the door.
A. I put the key in the lock, turned the key to the right until the knob
started to turn, turned it some more to open the latch, then I pushed
the door open.
Q. Now, Doctor, this is very important, sir. Did the key turn the lock
within the knob, or did it merely turn the lock and the knob together?
Do you understand my question?
A. Yes, I think so. And the answer is, the lock turned first, about a quarter
turn, and then the whole thing turned. I remember that because the
first quarter turn, it turned easily, and then once the knob started to
turn, it was a lot harder to turn, as though the bolt was sticking. At that
point I had to use my other hand on the knob to get it to turn.
Q. Is it possible that the door was already slightly ajar, and that thats how
you were able to open it?
A. No. Im sure it wasnt. As I said, the knob was hard to turn, and I had
to pull in on it and turn with my other hand to get it to open.
Q. Sir, you are aware, I believe, that the key the police found in the room
is not capable of turning the lock in the knob?
A. Thats what Ive been told.
Q. Yet you have testified that the key you had did turn the lock in the
knob.
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166
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Q. (By Mr. Porter) Isnt it a fact, Mr. Trevayne, that what really happened was that when Dr. Collins came in around one-fifteen in the
morning, you gave him the wrong key, the key to Ms. Martins room,
number 407?
A. No. He had the right key. The key the police found is the right key.
Q. Is that so? Well, lets explore that. Dr. Collins has testified that the key
you gave him turned the lock in the door to Ms. Martins room. Would
you agree with me that his testimony and your testimony cant both be
true?
A. I dont know if hes lying or what, but I gave him the key to his own
room.
Q. Which room was that?
A. 409.
Q. Would you agree with me that, either what he said about the key turning the lock isnt true, or else what youre saying about giving him the
right key isnt true? Has to be one or the other, doesnt it?
A. I dont know. Maybe she didnt lock the door all the way. Maybe she
let him in.
Q. Maybe she let him in. Is that what you said? I want to be sure the jury
heard you right. Maybe she let him in?
A. Well, it could be, or maybe the door wasnt completely closed.
Q. If Ms. Martin let Dr. Collins in, that would mean both she and he are
lying, wouldnt it? Is that what youre saying, that you think theyre
both lying?
By Ms. Stoddard: Objection, argumentative, calls for speculation.
Judge: Sustained.
Q. Are you aware of any facts, of your own personal knowledge, that
would show that Ms. Martin intentionally let Dr. Collins into her room?
A. No.
Q. Now, you also said maybe the door wasnt completely closed. The
doors are spring-loaded, arent they, so if you let go of them, they close
by themselves?
A. Yes, theyre supposed to, but maybe it didnt.
Q. Mr. Trevayne, do you recall me asking you the following question and
you giving me the following answer at your deposition: Question: Isnt it true that the doors are old, and they dont always close all the
way? Answer: Not that I know of. Was that your testimony at your
deposition?
A. Yes.
Q. Was that testimony true when you gave it?
A. Yes.
Q. Then, Mr. Trevayne, isnt it a fact that you dont have any reason to
think that the door wasnt completely closed?
A. I dont know.
Q. Are you aware of any facts, of your own personal knowledge, that
would show that the door might not have closed all the way?
A. I dont know.
By Mr. Porter: Your Honor,
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Judge: That question can be answered yes or no, Mr. Trevayne. Either
you know of some facts, or you dont. The witness is instructed to answer the
question.
A. I forgot the question.
Judge: Read back the question.
(The pending question is read.)
A. No.
Q. Ms. Martin has testified that the door to her room was locked, that she
checked it twice, tried to turn the knob, tried to pull the door open, and
it was locked. If the door hadnt been closed completely, then when
she pulled on the knob it would have opened, wouldnt it?
A. I guess.
Q. We dont want you to guess, Mr. Trevayne. If the door hadnt been
closed completely, then when she pulled on the knob it would have
opened, wouldnt it?
A. It should.
Q. Now, Mr. Trevayne, lets talk about what really happened that night:
You gave Dr. Collins the wrong key. When Ms. Martin came down to
the lobby and asked you to call the police, you realized your mistake.
Before the police got there, you went up to Ms. Martins room and
switched the keys to cover up your mistake. Isnt that what really happened, Mr. Trevayne?
A. No. No. And if youre going to accuse me
Judge: That will do, Mr. Trevayne. Sit down. Sir, I said sit down.
Q. No, that isnt what happened?
A. No.
Q. At your deposition, you testified that from the time you called 911 until the police arrived, you remained at the front desk. Ms. Martin has
testified that right after you called 911, you left the front desk and were
gone for several minutes. Is it still your testimony that you remained
at the front desk the entire time?
A. Yes.
By Mr. Porter: Your Honor, may the witness be shown plaintiffs exhibit 24?
(Plaintiffs exhibit 24 is shown to the witness.)
Q. (By Mr. Porter) Mr. Trevayne, can you identify that document as a
computer printout generated by the telephone system at the Banbury
Park Hotel?
A. Yes.
Q. And it shows what telephone calls were placed or received at the hotel between midnight and 6:00 A.M. on the same night as the incident
that weve been discussing?
A. It appears to.
By Mr. Porter: Your Honor, offer plaintiffs exhibit 24.
Ms. Stoddard: No objection to its admission, but I reserve objections as to
relevance.
Judge: Plaintiffs exhibit 24 is admitted in evidence.
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Q. (By Mr. Porter) Now, Mr. Trevayne, I want you to take a look at that
printout, about twelve lines down from the top, the line beginning with
01:15:37, do you see that?
A. Yes.
Q. That shows your telephone call to 911, at 1:15 A.M. and 37 seconds,
does it not?
A. It looks like, theyes.
Q. And it shows it being made from your extension at the front desk,
doesnt it?
A. Yes.
Q. And the next line shows an incoming telephone call, doesnt it?
A. Yes.
Q. About two minutes later, at 1:17 A.M. and 43 seconds, right?
A. Yes.
Q. And where does the printout show that call going to?
A. It looks like, to the voice mail.
Q. Isnt it a fact, Mr. Trevayne, that incoming calls at that time of night go
first to the front desk, and then if they arent answered within six rings,
they go to the voice mail?
A. Yes. Probably I was busy.
Q. I see you have anticipated my next question. Probably you were busy,
thats why you didnt answer the phone at the front desk, after six
rings?
A. Well, you know, your client there, was pretty hysterical. . . .
Q. You were busy.
A. Yeah.
Q. You were busy switching the keys, werent you?
A. No.
Putting It
Into Practice:
If you were Gail Stoddard,
what aspect of Shannons
case would you focus on
and why?
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169
SIDEBAR
Burden of Proof
Most people are familiar with the idea that, in a criminal case, the defendant is entitled to be acquitted unless the government proves the defendant
guilty beyond a reasonable doubt. This is an example of the concept of burden of proof. Notice that there are two dimensions to burden of proof:
(1) Who has the burden (in a criminal case, the government has it) and (2) how
high a level of proof is required.
In civil lawsuits, plaintiff has the burden of proof to establish all the elements of a cause of action. This is why plaintiff loses if one element is missing.
As for the level of proof, for most causes of action, plaintiff must establish each
element by a preponderance of the evidence. The preponderance of the evidence test works like a balance scale. In our hypo, for example, suppose the jury
is trying to decide whether Dr. Collins intended to attack Shannon (intent is one
element of the cause of action for battery). We place all the evidence that tends
to show that Dr. Collins did act with intent on one side of the scale. We place all
the evidence that tends to show that Dr. Collins did not intend to attack Shannon on the other side of the scale. If the scale tips, even slightly, in the direction
of the evidence showing intent, Shannon has sustained her burden of proof as
to the element of intent. If the scale tips the other way, or stays level, Shannon
has failed to sustain her burden of proof, and her cause of action for battery
fails. To put it another way, preponderance of the evidence requires Shannon
to put on enough evidence to persuade the jury that it is more probable than
noti.e., there is greater than a fiftyfifty chancethat Dr. Collins acted with
intent.
Putting It
Into Practice:
What is one of the
reasons Shannon pursued
a civil cause of action
against Dr. Collins rather
than attempt to persuade
the state to prosecute him
criminally?
Putting It
Into Practice:
How can you tell what
the burden of proof is for
a given cause of action?
170
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action; most, like self-defense, apply only to certain specific theories of liability. Which affirmative defenses apply to which causes of action is a matter of
substantive law.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
Why do you think
plaintiffs are allowed
rebuttal and defendants
are not?
plaintiff gets one last turn. This phase is called rebuttal. During rebuttal, plaintiff may call witnesses, and defendant may cross-examine each of them.
The scope of the evidence that plaintiff is allowed to present during rebuttal is quite limited: It must directly rebut some item of evidence offered
during defendants part of the case. It would not be fair to allow plaintiff to
bring up new matters at this late stage, because defendants part of the trial
is over, and defendant will have no chance to give his side of the story. Naturally, plaintiffs attorneys are sometimes tempted to save some juicy bit of evidence and try to sneak it in during rebuttal, so that defendant will have no
chance to offer evidence to disprove it. This practice is referred to as sandbagging. Most judges vigorously enforce the restrictions on the scope of rebuttal, however, so it is generally risky to count on getting important evidence in during rebuttal.
More MotionsAfter rebuttal is over, the trial enters another housekeeping phase, again outside the hearing of the jury. Both parties may now make
a motion for a directed verdict. In principle, the judge is always free to bypass the jury and render an immediate verdict, for either party, if the judge is
persuaded that the facts are so clear that no reasonable juror could reach a
different conclusion. Plaintiff is entitled to a directed verdict on any cause of
action if plaintiff has made out a prima facie case and defendant has not presented any credible evidence to rebut any of the elements of plaintiffs cause
of action. Defendant is entitled to a directed verdict if defendants evidence
so clearly destroys one of the elements of plaintiffs cause of action that no
reasonable juror could find otherwise. As a practical matter, directed verdicts at the close of the evidence do not gain very much in terms of efficient
use of the court systemat most, some jury deliberating time will be saved.
On the other hand, if an appellate court disagrees with the judge, the entire
trial will have been wasted and the case will have to be tried again. Therefore, most judges are cautious in the use of their power to grant a directed
verdict, and do so only in circumstances where the correct outcome is clear;
see FRCP, Rule 50.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
This is also the time when the judge must make a final decision about what
instructions to give the jury, if that has not already been done. The attorneys
need to know the exact wording of the jury instructions in order to prepare
their closing arguments. Otherwise, attorneys run the risk that they might argue some point, only to have the judge instruct the jury to the contrary a few
CHAPTER 7
minutes later. In all but the simplest cases, settling jury instructions usually requires argument, and plenty of it, as the attorneys debate the case law pertaining to the theories of liability involved in the trial. Plaintiffs attorney wants
jury instructions that do not require proof of elements for which plaintiffs evidence is weak. Defendants goal is the oppositethe more elements plaintiff
has to prove, the better. The wording of instructions is also a battleground.
The party with the best casewhich may be either plaintiff or defendantwill
prefer instructions that are clearly worded and easy to apply; the opposing
party, on the other hand, will be perfectly happy for the judge to give instructions that are confusing and difficult to understand.
Your Local Notes
__________________________________________________________________________
171
Putting It
Into Practice:
Some courts have
instituted written jury
instructions that are
approved by a special
judicial committee. Do
you think plaintiffs
attorneys or defendants
attorneys would be most
supportive of this
innovation?
__________________________________________________________________________
The exact procedure for settling jury instructions varies from court to
court. Generally, by this stage in the trial, each side has already submitted proposed jury instructions, and each side has also submitted written objections
to the opponents proposals, or will at least make verbal objections on the
record. It is a general principle in the law that appeals courts are not interested
in listening to a party complain about trial court errors unless the party doing the complaining pointed the errors out to the trial judge early enough that
they could have been corrected. Thus, if you think there is something wrong
with one of your opponents proposed jury instructions, you cannot keep
silent about it, hoping to use the defect to get the case reversed on appeal if
you lose the trial. If you do not get your objection on the record before the jury
retires to deliberate, most courts of appeal will rule that the instruction
stands, erroneous or not.
Putting It
Into Practice:
Should an error that
seriously affects the
outcome of the case, but
which no one notices until
after the jury has decided,
be allowed to be objected
to on appeal?
172
Putting It
Into Practice:
Do you think jurors are
more persuaded by
opening statements or
closing arguments?
Putting It
Into Practice:
What kind of visuals
would you design for use
in Shannons case?
CHAPTER 7
evidence on an important point. The assumption is that the jury knows that
this is argument, not evidence, and if one partys reasoning is flawed, the other
is free to point out the flaws when it is her turn to argue.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
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The judge concludes the instructions by submitting the case to the jury
for deliberation. The jurors are given verdict forms on which to record their
decision, and sent off to the jury room.
They only deliberated for two hours, so thats bad, isnt it, Allen? Shannon asked. When the jury makes a decision quickly, its usually for the defendant, isnt it? Isnt that what they said in the O. J. Simpson case?
Allen smiled. I thought it was the other way around. Anyway, in my experience, you cant really guess what a jury will do. Lets just wait and see
what they decided. The bailiff will be bringing them back in a few minutes;
then well know.
I dont know. I just have a bad feeling about this. Its all kind of my word
against theirs, isnt it? I mean, we didnt really prove that they gave Dr. Collins
the wrong key.
It is your word against theirs, or actually your and Dr. Collinss word
against the desk clerks. But thats what it always comes down to in a trial.
That is proof, or at least its the best proof you ever get. Think about itif
we had a photograph of him switching the keys, do you think the hotel
would have gone to trial on it? Of course not; they would have paid us off
long ago.
But we did have Chucks notesat least that was some proof
Yes. The decision not to use them was a judgment call, and well soon
see whether it was the right one. The problem with the notes were, in addition to showing Trevayne was a liar, it tended to prove that the door might
not have closed. Right or wrong, we made the decision to go on the theory
that the clerk switched the keys. If we then put in evidence that the door
might not have closed properly, that undercuts our theory of what happened.
Alternative theories of liability are okay at the pleading stage, but, in front
of a jury, at least in my experience, its better to pick your best explanation
of the facts and stick to it. And I think that making it a swearing contest
with you and Dr. Collins on one side and Trevayne on the other was a pretty
good way to go.
173
Putting It
Into Practice:
For what reasons do
judges make every effort
to avoid committing
reversible errors?
Putting It
Into Practice:
Do you agree with Allen
Porters statement that it
is best to go to the jury
with one consistent
theory of what happened,
or do you think it would
have been better to argue
both possibilitiesthat
either the clerk switched
the keys or the door
didnt close properly
and let the jury choose?
Assuming that the
decision is to pick one
version or the other,
which would you pick and
why? Based only on the
testimony in the trial
transcript excerpts, how
would you vote if you
were on the jury?
174
Putting It
Into Practice:
If given the opportunity,
should Allen Porter
request a special verdict?
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In the vast majority of cases, only a general verdict will be called for; that
is, the jury will be asked merely to find for the plaintiff or defendant and, if the
verdict is for the plaintiff, to decide the amount of money to be awarded. If there
are multiple parties, there may be a need for separate verdicts as to each; for
example, in our hypo, the jury would need to render one verdict on Shannons
claims against the hotel, and another on her claims against Dr. Collins.
The federal rules also provide mechanisms whereby the judge can require
the jury to be more specific about what they are deciding. One is the special
verdict, consisting of written findings on particular issues of fact. In a battery
case, for example, the jury might be asked to render separate verdicts on
whether defendant made physical contact with the plaintiff; whether defendant acted intentionally; whether plaintiff suffered damages; and whether the
damages were caused by defendants conduct. The judge would then decide
whether the specific facts found in the special verdict are enough to support
liability, and render judgment accordingly. Another procedure is to submit the
case for a general verdict with written interrogatories to the jury about specific facts on which the verdict depends. Here, the judge might ask the jury to
reach a general verdict, in the usual way, on whether defendant is liable to
plaintiff for battery and, in addition, to answer the question, Did defendant intend to make physical contact with plaintiff? If the answers to any of the factual questions are inconsistent with the verdict, the judge can send the jury
back to try again or order a new trial.
Most judges try to avoid using these procedures, correctly seeing them
mainly as a way for one side or the other to plant the seeds of reversible error and set up an appeal. The judges power to use special verdicts or interrogatories to the jury is discretionarythat is, the judge is not required to
use them, but may do so if he wishes. Therefore, the court of appeals is very
unlikely to send the case back for a new trial just because the judge used a
general verdict. If the judge uses special verdicts or jury interrogatories,
however, and the jury comes back with the wrong answersinconsistent
findings, for examplethe judge may have no choice but to order a new trial;
see FRCP, Rules 49 and 58.
What happens if the jurors cannot agree on a verdict? It depends on the
situation. In federal court, as well as in many state courts, a unanimous verdict
is required, so one determined holdout can cause a hung jury, a jury unable
to reach a verdict. Judges are never eager to waste time retrying cases, so a
deadlocked jury will likely be sent back several times with increasingly
adamant exhortations to come to some agreement. In many cases, the jurors
can negotiate with each other and reach some compromisefor example,
awarding a smaller amount of money in return for the holdouts vote. If the
judge becomes convinced that there is no hope of breaking the deadlock, the
only option is to order a new trial with a new jury. In courts where the verdict
can be by a majority of the jurors, it is still possible to have a hung jury, because the majority required is almost always more than a simple majority. Nevertheless, majority verdicts make hung juries much less likely, which is one of
the reasons why some states use them.
When the jurors reach a decision, they send word to the judge. Because no
one can predict how long it will take the jury to reach a decision, the judge and
the attorneys have likely gone back to their offices and moved on to other work.
The judges secretary notifies the attorneys that the jury has returned, everyone returns to the courtroom, and the judge has the verdict read. Any party
then has the right to have the jury polled. Polling the jury consists of the judge
asking each juror, in open court, whether he or she agreed to the verdict. This
is supposed to provide a safeguard against coercion, giving any jurors who feel
they were pressured into a decision an opportunity to say so.
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The trial is now over, all the participants leave, and the suit enters another
phase of procedural maneuvering.
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CHAPTER 7
Putting It
Into Practice:
On what basis might Gail
Stoddard file both a
motion for a new trial
and a motion for a
judgment n.o.v.?
Still another option available to a losing defendant is to ask for a remittitur. Suppose the jury finds in favor of plaintiff and awards an unexpectedly
large amount of money for damages. If the defendant can persuade the judge
that the award is unreasonable and excessive, the judge has the power to let
the verdict stand and reduce the amount of the award. (Plaintiff can appeal,
of course.)
All of these procedural maneuvers occur relatively quickly after trial, if
at all. The deadline for a motion for judgment notwithstanding the verdict
is ten days after the verdict is entered. The deadline for filing a motion for
new trial in federal court is ten days after entry of judgment; see FRCP,
Rules 50 and 59.
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The event that formally ends the trial phase of the litigation is the entry of
judgment. It is important to know exactly when a judgment is entered, because
various important deadlinesespecially the deadline for filing an appealare
counted from the entry of judgment. In federal court, judgment is entered
when it is signed by the court and recorded in the clerks docket in accordance
with FRCP, Rule 79. In federal court, the clerk or the judges staff typically prepares the actual piece of paper that the court will sign. In state courts, procedures vary, and it may be up to the winning party to lodge a proposed form of
judgment with the court. To lodge a form of judgment means to prepare and
deliver the actual judgment that you want the judge to sign. Your instructor
will tell you the appropriate procedure for your locality; see FRCP, Rules 58
and 79.
177
Putting It
Into Practice:
If Allen Porter asked you
to lodge a form of
judgment in your
jurisdiction, how would
you do it?
Putting It
Into Practice:
Do you think losers in
litigation should have to
pay their opponents
attorneys fees? Is there
such a requirement in
your state?
178
Putting It
Into Practice:
Do you agree with the
long-standing tradition of
having trial testimony
manually recorded by a
court reporter, limiting
courts of appeals to
review of the written
record? Would it be better
if trials were videotaped
so that the court of
appeals could review
live testimony?
CHAPTER 7
attorneys fees are often awarded in breach of contract lawsuits. There are also
many statutes of recent vintage that create new causes of action (for such
things as consumer fraud, securities fraud, and the like) and that provide for an
award of attorneys fees to the winner. In many courts, the judge has the power
to award attorneys fees if the judge feels that a party is deliberately abusing
the system; filing a frivolous lawsuit merely to harass the opposing party, for
example. Some advocates of reform believe that the laws should be changed to
require the loser to pay the winners attorneys fees in all cases. Such proposals are particularly popular with defense lawyers, because they expect (probably correctly) that many fewer plaintiffs would sue if losing meant getting assessed tens of thousands of dollars for the defendants attorneys fees.
How does the court determine the amount of costs to assess? The procedure varies, but one way is for the winner to file a statement of costs, after
which the loser can file written objections to any items deemed improper. Attorneys fees are a different matter: Proceedings to determine the amount of
attorneys fees to be awarded can become quite complex and drawn out, possibly requiring evidentiary hearings as the parties argue the reasonableness of
various charges; see FRCP, Rules 54(d)(1) and (d)(2).
ETHICAL ETIQUETTE
CHAPTER 7
PRACTICE POINTERS
The practice of law is both a profession and a business. As such the generation of profits is essential to the success of any law practice (other than
government law offices, such as the county attorneys office or federal district
attorneys office). These profits arise out of the hours billed by each attorney
and legal assistant on staff. These so-called billable hours are the staple of
any law practice. Therefore, it is absolutely essential that every attorney and
legal assistant maintain an accurate record of the hours they have expended
working on each case to which they have been assigned.
Firms use a variety of procedures for recording time spent and many have
employed computerized timekeeping procedures. Regardless of the details,
however, every procedure requires you to maintain a record of the client for
whom you have done the work, the type of work you did (e.g., phone call, document review, preparation of letter, travel, or research), the date you performed the work, and the time you spent doing it. Not all work is considered
billable. For example, the time you spend learning how to perform a task that
is required to serve a client and that you should be expected to be able to perform as a reasonably competent legal assistant cannot be billed. For this reason inexperienced legal assistants spend more time accomplishing the same
goal as a more experienced legal assistant but amass fewer billable hours.
Familiarize yourself immediately with the billing practice of your firm.
Some firms have minimum billing practices. Every phone call, for example,
may be billed as 0.1 or 0.2 hour even if the client does not answer and even if
the conversation actually takes less time. Every letter may be billed at a minimum of 0.5 hour even if it is a form letter that can be completed in a few minutes. Other firms are less rigid in their billing practices but do require legal assistants to log every hour expended and then review these records to
determine which hours will actually be billed for.
Learn the details of the billing practice in your firm and then routinely assess your own billing rate. If in an eight-hour day, you are typically billing only
four hours, you need to reassess how you are using your time. If you are not
filling out your time slip immediately after you complete a task, you may be
forgetting the time you expended and may find yourself at the end of the day
unable to account for the time you spent.
Beyond the economic necessity of maintaining accurate records, the court
in some instances may need to be able to determine the amount of time spent
on a case. The awarding of attorneys fees, for example, requires that the court
be able to review the amount of time spent in preparing a case to determine if
that amount of time falls within the realm of standard practice. Any time attorneys fees become an issue, a law firm must be able to bolster its claims of
reasonableness by producing records of the time expended by each staff member. Failure to keep accurate and consistent records may result in a loss of fees
to the firm. Furthermore, inability to justify fees to a client can result in a client
that not only resents the amount of monies being paid, but harbors such hostility toward the firm that any future relations become impossible.
179
180
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TECHNO TIP
The courtroom of the future is now in
many jurisdictions. Some of the larger
court systems (including many federal
courts) have one or more courtrooms
set up for digital presentation of evidence. These courtrooms generally
have at least five, and sometimes more,
large screen computer monitors for
viewing by the judge, witness, counsel,
and jurors. In addition to exhibit books
for the jurors (where allowed) all the
participants in the trial (or hearing on a
motion) can view the documents as
they are being discussed. Important
phrases or graphics (including pictures)
can be highlighted to focus the attention of the witness and the jury. Instead
of fumbling through a stack of exhibits
at the clerks desk a mere press of a keyboard button can bring a contract, an
experts report, a medical record, or a
photograph to the screen. Deposition
S U M M A RY
Trial settings are not firm because judges usually schedule more cases for trial
than they can possibly handle, anticipating that most of them will settle before
going to trial and that other contingencies will arise that will result in delays.
Judges set trial dates after some triggering event. Some courts set dates after
the pleadings are filed or after discovery is at a certain stage, whereas others
set dates after a motion to set and certificate of readiness is filed. To help ensure that attorneys will be prepared to go to trial, courts prepare a pretrial order or require the attorneys who will actually be going to trial to prepare a
joint pretrial statement, which sets forth the boundaries of what can and cannot be presented at trial. The pretrial order or statement contains a list of the
witnesses and documents that will be presented at trial as well as a list of the
issues of fact and law that must be decided at trial. The rules generally require
attorneys to exchange names of witnesses and copies of documents months
before trial. Listing the documents saves trial time because any documents to
which an attorney does not object in the pretrial statement will be admitted at
trial. Judges encourage attorneys to compromise on issues as much as possible so that the trial can focus on the most serious issues in dispute.
Immediately before trial, witnesses are carefully prepared and crossexamination questions as well as opening and closing arguments are outlined. Motions in limine must be submitted to the judge, thus establishing
the boundaries within which the attorneys must ask their questions. Jury instructions are prepared prior to trial. The exact wording of these instructions is important because of the potential importance this wording may
play on appeal. Trial exhibits must be marked by the clerk before or during
trial so that they can be located quickly. The authenticity of exhibits must be
CHAPTER 7
established, although most pretrial orders contain stipulations of authenticity except for those the attorneys plan to challenge. Demonstrative evidence
must be planned for well in advance of trial because the assistance of a
graphics service is frequently required. The organizational skills of legal assistants are essential in making sure that all the elements of a trial come together before the play begins.
Most cases are settled before trial and on the first day of trial many judges
meet with the attorneys in their chambers to, among other things, try once
more to convince the attorneys to settle. If the trial moves forward, jurors are
selected through the process of voir dire. Some courts control the voir dire
process, while others allow the attorneys to ask the questions. Jurors may be
excused for personal reasons or for cause. The attorneys also have the option of striking jurors by using a specified number of peremptory challenges.
In nonjury trials jury selection and jury instructions are dispensed with,
but the judge must make findings of fact and conclusions of law. Typically the
judge requires both parties to submit proposed findings before the trial and
then adopts the findings of the winning party. In nonjury trials, judges commonly relax the formal rules of evidence and encourage attorneys to waive
closing arguments. Parties are usually informed of the judges verdict by
minute entry several days or weeks after the trial.
The trial opens as each side gives opening statements during which they
tell their clients story. The plaintiff then presents evidence, followed by the
defendant, and concluding with the plaintiff, who is given an opportunity to
rebut the defendants case. This evidence is presented and rebutted through
direct examination, during which leading questions are prohibited, and
cross-examination, during which leading questions are essential. Attorneys
cannot cross-examine their own witnesses unless those witnesses are hostile. Either side can ask that witnesses be placed under the rule. Some
courts limit the scope of cross-examination to areas that were covered on direct examination; all courts limit redirect examination to the scope of crossexamination.
After the plaintiff rests, the defendant can move for a directed verdict on
one or more claims if the defendant believes the plaintiff has failed to establish a prima facie case for those claims. The judge will allow a claim to go before
the jury if reasonable jurors could differ as to whether the evidence supported
the plaintiffs claim. Judges are reluctant to enter directed verdicts unless the
outcome of the case is very clear.
The defendant then has the choice of attacking the plaintiffs case or raising an affirmative defense. Because the plaintiff has the burden of proving each
element of her case by a preponderance of the evidence, the defendant need
go after only the weakest link in the plaintiffs case to prevail. The defendant,
however, has the burden of proving an affirmative defense. The plaintiff has
the opportunity of rebuttal once the defendant has rested, but is restricted to
rebutting evidence that was brought in by the defendant. Introducing new evidence at this point is called sandbagging and is vigorously opposed by judges.
Motions are generally made both when the plaintiff rests and when the defendant rests. At the end of the case jury instructions are once again debated and
both parties are careful to get their objections to these instructions on the
record so they are preserved on appeal.
Attorneys pull all the pieces of their case together in the closing arguments, where they are allowed to explain the evidence, to draw inferences, and
to talk about commonly accepted ideas and general principles, such as fairness and justice. Objections are seldom made during closing arguments. Because closing arguments serve as a blueprint for the case, many trial attorneys
believe that trial preparation should begin with the outlining of closing arguments. Legal assistants are often given the responsibility of preparing the visuals used to explain complicated evidence during closing arguments.
181
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Before the jury retires to deliberate, the judge reads them two sets of jury
instructions. The first is a set of general instructions that is used in every civil
case and the second is a set of specific instructions addressing the substantive law to be applied in the case at hand. In federal courts and some state
courts, judges are permitted to comment on the evidence but few do because
of the possibility of committing reversible error.
Jurors are allowed to render their decision on almost any basis except a
coin toss or other game of chance. Juries usually give a general verdict although judges have it within their discretion to order a special verdict or a
general verdict with written interrogatories. If a jury becomes deadlocked, resulting in a hung jury, a judge must order a new trial. Hung juries are less likely
to result when a majority verdict is allowed. Once a verdict is entered, attorneys have the option of polling jurors. Attorneys are advised to talk to jurors
after trial to learn what entered into their decision-making process.
The loser has the option of filing a motion for a new trial, thereby circumventing the appeal process, or a motion for a judgment notwithstanding the
verdict, which allows the judge to disregard a jury decision the judge believes
is unreasonable. The defendant can also ask for a remittitur.
The trial phase formally ends with an entry of judgment. In federal courts
judgment is entered when it is recorded in the clerks docket but in some state
courts the winning party must lodge a proposed form of judgment with the
court. The form of judgment, the assessment of taxable costs, and the determination of attorneys fees are potential sources of further disagreement. Taxable costs, for which the loser is liable, include court reporter, filing, and service fees. Courts sometimes determine the assessable costs by reviewing a
statement of costs prepared by the winner. An ongoing philosophical as well
as personal debate is whether the loser should have to pay the winners attorneys fees. Generally each party is required to pay its own fees although exceptions exist in cases involving contractual disputes or where state statutes
provide otherwise or where the judge feels that the losing party deliberately
abused the legal system.
KEY TERMS
Burden of proof
Closing argument
Cross-examination
Demonstrative evidence
Direct examination
Discretionary
Entry of judgment
Findings of fact and conclusions of law
Form of judgment
General verdict
General verdict with written interrogatories
Hostile witness
Hung jury
Jury instructions
Leading question
Lodge
Motion for a directed verdict
Motion for a judgment notwithstanding the verdict (judgment n.o.v.)
Motion for a new trial
Motion in limine
Motion to set and certificate of
readiness
Opening statement
Peremptory challenge
Poll the jury
Preponderance of the evidence
Pretrial order
Pretrial statement
Prima facie case
Rebuttal
Redirect examination
Remittitur
Rests
Scope
Settle
Special verdict
Statement of costs
Stipulate
Taxable costs
Trial setting
Voir dire
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183
Workshop Alert
The following workshop correlates well with this chapter and you would be well advised to work with it.
Workshop 17
REVIEW QUESTIONS
1. What is a trial setting?
a. For what reasons are trial settings not concrete?
b. What prompts the setting of a trial date?
2. What is the purpose of a pretrial order or statement? What is contained in such an order or
statement?
3. What is a motion in limine? What is the purpose
of such a motion?
4. Why do attorneys and judges work so hard at
crafting jury instructions? Why do most attorneys prepare jury instructions prior to trial?
5. What are two important things to consider when
preparing evidentiary exhibits for trial? What is
the purpose of demonstrative evidence?
6. Why do negotiations reach a higher level of intensity immediately before trial?
7. What is the purpose of voir dire? What is the difference between a peremptory challenge and a
challenge for cause?
8. In what respects is it easier to try a case before
a judge than before a jury?
9. What does an attorney try to convey during
opening statements? What limitations are
placed on opening statements?
10. If a plaintiffs theory of liability is analogized to
a chain, what must a plaintiff do to win a case?
a. What must the defendant do to win the case?
b. At what point in this chain is a plaintiff determined to have made a prima facie case?
11. How does the scope of cross-examination differ
from the scope of direct examination? What is a
leading question and when is it allowed?
12. What is required of a witness who has been put
under the rule?
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CHAPTER 7
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
CHAPTER 7
(Answers in Appendix A)
185
MULTIPLE CHOICE
motion _______________ .
needed.
_______________ evidence.
186
CHAPTER 7
_______________ verdict.
the facts.
called a _______________ .
_______________-examination.
examination.
CHAPTER 7
187
TRUE OR FALSE
45. Pretrial statements do not need to be prepared
by the attorneys who will actually be going to
trial.
T F
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78. Leading questions are allowed on crossexamination because the purpose of crossexamination is to test the credibility and
truthfulness of the witness.
T F
79. Most cases are won on the strength of crossexamination.
T F
80. The defendant cannot move for a directed verdict until the plaintiff has rested.
T F
81. A plaintiff has sustained her burden of proof if
she can show there is a fiftyfifty probability
each element in her case is supported by the
evidence.
T F
82. A defendant has the burden of proving an affirmative defense.
T F
83. Judges are reluctant to grant a directed verdict.
T F
84. The party with the worst case generally
prefers clearly worded, easy-to-apply jury instructions.
T F
85. Most appellate courts will allow jury instructions to stand if the party objecting to them
does not get its objections on the record before the jury begins to deliberate.
T F
86. Closing arguments are more restricted than
opening statements.
T F
87. Judges frequently uphold objections made
during closing arguments.
T F
88. The defendant makes the final closing argument.
T F
89. Many trial attorneys believe that trial preparation should begin with the closing arguments.
T F
91. Judges give two sets of jury instructions: general instructions that are given in every civil
suit and specific instructions regarding the
substantive law to be applied in the case at
hand.
T F
110. In the American legal system each party is required to pay its own attorneys fees. T F
111. Attorneys fees are determined via the statement of costs.
T F
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189
LITIGATION LINGO
Read the description and provide the word that matches that description.
WHATS MY NAME?
1. The defendant must prove me if he raises me.
2. I am a visual aid and other kinds of evidence that help clarify the facts for the jury.
3. I am what an attorney makes at the beginning of trial to set the stage.
4. I am prepared by the judge and set forth the parameters of what attorneys can and cannot present at
trial.
5. I am a motion prepared by the parties that informs the judge about how many days are needed for trial
and whether a jury will be needed.
6. I am the plaintiffs response to the defendants case.
7. I am a pretrial motion that prevents the opposition from asking prejudicial questions at trial.
8. I am the process that is used to weed out undesirable jurors.
9. I am the event that signals the end of the trial phase of litigation.
10. I am a motion the defense can make when the plaintiff rests.
11. I can be used to eliminate an undesirable juror without cause.
12. I allow an attorney to pull all the pieces of the trial together.
13. I am what a judge is required to make when rendering her decision in a nonjury trial.
14. I am what the losing party has to pay, including court reporter, filing, and service fees.
15. I am the process that is used to question opposing witnesses.
16. I am an uncooperative witness.
17. I am the exact wording of a judgment.
18. I am what a plaintiff must establish to avoid a directed verdict.
19. I am what a jury renders if they are asked to make special findings of fact.
20. I am a deadlocked jury.
21. I am a question that tells the witness the answer the attorney wants to hear.
22. I am the amount of proof the plaintiff must establish in a civil suit.
23. I am a motion made by the losing party that wants the judge to disregard the jurys decision because it
is unreasonable in light of the evidence presented.
24. I am rendered by the jury when it is asked to make a decision about the outcome of the case as well as
answer specific questions in reference to the facts.
25. I am a request by the defendant to reduce an excessive damage award.
26. I am what an attorney does to make sure that each juror agrees with the verdict.
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LITIGATION LOGISTICS
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
4.
5.
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191
PROCEDURAL PONDERABLES
1.
2.
CHAPTER
ROAD MAP
OF A LAWSUIT:
JUDGMENT
COLLECTION
AND APPEAL
OBJECTIVES
In this chapter you will learn:
How to collect on a judgment
How to determine the assets of a
paying a judgment
The procedural rules that must be
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hypothetical
thinks she can get the judgment reversed. Allen Porter and Chuck
Fletcher were discussing the case over a quick lunch at the local deli.
Chuck chewed his pastrami sandwich in silence for a moment. So there
go another two years down the drain, huh? Theres nothing we can do?
To speed it up? No, two years is about what itll take. Of course, we get
interest on the money, now that theres a judgment. But the sixty-four dollar
question is whether theyll really come up with a supersedes bond. I was getting some vibes before that Gail thought we might have trouble finding any
money to collect. Its a Delaware corporation, remember, and at this point we
havent a clue whether it has any assets. And you have to wonder whats going onpretty unusual for a business this size not to have liability insurance.
There are three possibilities, it seems to me. One is that theyre substantial
enough to be self-insuredwe hope. But it could also be that theyre running
on a shoestring and trying to cut corners, or, worse yet, that they think theyre
judgment proof.
But surely the hotel must be worth more than the three hundred seventyfive thousand
Sure. But itll be mortgaged to the hilt, probably. How much did your
house cost, a hundred twenty thousand or so? How much would you get if you
sold it, after you pay off the mortgage?
I see what you mean. I hadnt thought of that. But cant we find out if they
have assets?
It depends. Up until now, we couldntthe general rule is you arent entitled to take discovery on what kind of assets the opposing party has. Now
that we have a judgment, we can take asset discovery, unless the other side
puts up a supersedes bond, and if they do that, we wont need to, of course.
Supersedes bondthats where they put up a bond in the amount of the
judgment guaranteeing that if they lose the appeal, the judgment gets paid?
Right. And if they do that, the judgment is stayed during the appealwe
cant try to collect until the appeal is over.
But if they do that, and if they lose the appeal, they wont be able to play
hide and go seek with the assets, right?
It wont matterif they try it, we just collect from the bonding company
and let the bonding company go after them.
And if they dont put up the bond
We take asset discovery and start looking for things to seize.
INTRODUCTION
Entry of judgment marks the end of the trial phase of the lawsuit, but it is by
no means the end of the road for the parties to the dispute. The parties strategies and options depend on who won, and on whether a significant amount of
money has been awarded.
The simplest scenario is a judgment for defendant that awards costs but not
attorneys fees. Because the costs are typically trivial compared to the amount
in dispute, plaintiffs options are simple: Appeal or give up. Often defendant will
agree to cancel the judgment for costs if plaintiff will agree not to appeal.
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The situation is more complicated when one party has a judgment against
the other for a significant amount of money. Notice that this can be either a
plaintiffs or defendants judgment. It may be that plaintiff won the suit and the
jury awarded damages. Or it may be that defendant won the suit but was entitled to an award of attorneys fees. We call the party to whom the money is
awarded the judgment creditor. The party ordered to pay the money is called
the judgment debtor. Now each of the parties has a potential weapon in hand:
The judgment debtor can appeal, and the judgment creditor can try to collect
the money awarded in the judgment.
Procedurally, appeal and collection are separate processes, and we will
describe them separately. As a matter of strategy, however, they are related:
Appealing can be one way for the loser at trial to delay collection of the judgment, but the threat of collection while the appeal is pending can put a serious
damper on the losers enthusiasm for the appeal.
Can the judgment creditorShannon in our hypobegin trying to collect
the judgment immediately, or must she wait until the appeal is decided? As a
general rule in American courts, a judgment is effective and enforceable as
soon as it is entered, and the judgment creditor can begin collection proceedings immediately. There can be some slight delayin federal court, there is a
ten-day waiting period [see FRCP, Rule 62(a)], and in most courts, if a motion
for new trial is made, the judge can order the judgment creditor to wait until
the motion is decided.
If Park Hotels wants to prevent Shannon from collecting the judgment
while the case is on appeal, it must somehow obtain a stay; see FRCP, Rule 62.
A stay is a court order, issued either by the trial court or the court of appeals,
that prohibits the judgment creditor from trying to collect on the judgment
while the stay is in effect. One common way to obtain a stay is by posting a supersedes bond (see sidebar). Another is to file for bankruptcy, which will result in an automatic stay of all proceedings against the judgment debtor.
195
Putting It
Into Practice:
Who is the judgment
creditor in Shannons
case? Who is the
judgment debtor?
SIDEBAR
Supersedes Bonds
Shannon has won a judgment for a large sum of money, and Park Hotels
Groups has appealed. Now we have a dilemma. The trial court has determined
that, in effect, Park Hotels is holding money that belongs to Shannon. It seems
unfair to allow Park Hotels to keep Shannons money for what may be years
while the case is on appeal, especially since Park Hotels may use the time to hide
the money or simply lose it in a bad business deal, leaving Shannon with nothing. On the other hand, if we allow Shannon to collect the money, and Park Hotels wins the appeal, how is Park Hotels going to get its money back? By then,
Shannon may have spent it! How would you solve the problem?
The laws solution is to let Park Hotels keep the money for now, but only if
it guarantees that the money will be there when the appeal is over. What kind
of guarantee?: a supersedes bond. A bond is a promise to pay, accompanied
by some form of security. The security can be cash deposited with the courtin
effect, the court will hold the money during the appealor, more commonly, it
will be an insurance contract from an approved insurance company. If it is cash,
and Shannon wins the appeal, the court will turn the cash over to her. If the
bond is secured by an insurance contract, the court can order the insurance
company to pay Shannon.
Putting It
Into Practice:
In your state what does
Park Hotels Group have
to do to obtain a
supersedes bond?
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Naturally, the insurance company will make sure that, if it has to pay Shannon, it has some way of getting the money back from Park Hotels. Before an insurance company will issue a supersedes bond, it will insist on getting some
security, perhaps a mortgage on the judgment debtors property or perhaps a
written guarantee from a large corporation that is clearly able to pay the
amount in question. If Park Hotels has few assets, probably no insurance company will issue a bond, and Park Hotels will be forced to try to dodge Shannons collection efforts while the appeal proceeds.
COLLECTING
THE
JUDGMENT
Chuck Fletcher was trying to explain the ins and outs of post-trial proceedings to Shannon. It was not going well.
It just seems to me like a dumb way to run a system. I mean, whats the
point of suing somebody if they dont have to pay you when you win?
Chuck tried again. While the case is on appeal, if they post
I understood the part about the bond. What I dont understand is, lets
say they dont put up a bondwhy wouldnt the court make them pay me?
How?
I dont knowhow about, put them in jail until they turn over the money?
See, that would be like having a debtors prisonwe dont do that in this
country. And, what if the judgment debtor doesnt have the money? Is the judge
supposed to let them rot in jail forever? Besides, this is a corporation. Who are
you going to put in jail? It just doesnt work, you couldnt do it that way.
Wellhow about having the court seize the hotel and sell it, or grab
their bank account, something like that?
Thats what we will try to do if it comes to that. But the thing is, the court
doesnt do it. Basically, courts dont do anything unless the attorneys prepare
everything first. Its up to the judgment creditor to find the assets and arrange
for them to be seized and sold. All the court will do is sign the necessary papersafter we prepare them.
So if they manage to hide all their assets, were out in the cold?
Pretty much. Of course, with a going business like a hotel, it would be
hard for them to hide absolutely everything. Theyd have to have an operating bank account, for example, but it probably doesnt have more than a few
thousand in it at any given time, so youd have to keep coming back. What
judgment debtors do, sometimes, is just make it so tedious and expensive to
collect, that its easier to give up and settle for a smaller amount of money.
Winning a final judgment does not automatically result in plaintiff getting
paid. You cannot take a judgment down to the bank and deposit it in your account. A judgment merely gives the winner of a lawsuit the right to try to seize
the losers assets. Even this right is limited, as we shall see shortly. The loser
can, of course, simply pay the judgment, or the parties can agree to settle the
case for some lesser amount. But if the loser refuses to cooperate, the winner
CHAPTER 8
must somehow find the losers property and have it seized and sold to pay the
judgment, which may be difficult or impossible. The process of seizing the judgment debtors property and applying it to pay the judgment is called execution.
197
198
Putting It
Into Practice:
What should Allen Porter
have done at the onset of
litigation to ensure that
any judgment against
Park Hotels Group could
be collected?
Putting It
Into Practice:
In your state how would
you schedule a debtors
examination for Park
Hotels Group?
CHAPTER 8
(We hasten to add that these exemptions prevent seizure of exempt property by a judgment creditornot by a secured creditor. If you decide to quit
making your car payment, you can be sure that the lender will repossess your
new Porsche in a heartbeat, and no exemption statute will prevent it. That is
because, when you bought the car, you signed a contract in which you voluntarily agreed that this specific car would be security for the loan.)
FINDING ASSETS
Suppose you already have a final judgment. Now can you find out what assets
your opponent has? The action is no longer pending, so the normal discovery
rules do not apply. The law, however, provides other, equivalent procedures
for discovering assets.
Asset discovery begins with a judgment debtors examination, often
called a debtors exam. A debtors exam is, in effect, like a deposition of the
judgment debtor, in which the judgment creditors attorney asks questions
about the judgment debtors assets. The procedure for scheduling a
debtors exam varies; you should consult the statutes or rules for your locality. Some debtors exams are held at the court, under the supervision of
a court officer (who may be called a magistrate or any of several other titles) who is not a judge but is appointed to handle routine matters in the
judges place. The supervising officer does not actually attend the examinationthere are too many! He merely swears in the judgment debtor and
stands by in case there is a need for a ruling or order of some kind. The judgment creditors attorney and the judgment debtor are sent into any available conference room to do the questioning. If the judgment debtor is evasive or uncooperative, it is easy to haul her back before the supervising
court officer, who will likely administer a dose of reality. The court will force
the judgment debtor to answer any reasonable questions about her property, under threat of jail if she refuses. Debtors exams are also sometimes
held at the judgment creditors attorneys office, in a manner similar to a
deposition. A court reporter may or may not be present at the option of the
judgment creditors attorney. Often, it is deemed easier and cheaper simply
to take notes.
The objective of a debtors exam is to find property or money belonging to
the judgment debtor. The modern reality is that most kinds of property have
some kind of paperwork associated with them: Real estate has deeds, cars
have title certificates, bank accounts have statements, etc. Therefore, it is customary to summon the judgment debtor to the debtors exam via a subpoena
duces tecum (or other similar order provided for in the statute or rules dealing
with debtors exams), which includes a long and detailed list of documents for
the judgment debtor to bring. The examination will consist of going through
these records one by one, noting down the information necessary to find and
seize the property in question. Of equal importance, the attorney will question
the judgment debtor about the categories of property for which no documents
have been produced. There will be questions about the judgment debtors income and expenses and where any excess money has gone.
When you are going after a bigger fishsay, a corporation that does business in several statesthe situation is more complicated. If you schedule a
debtors exam, the corporation will designate some employee to appear and
testify. That person will probably claim not to have all of the information you
need. Some of the information you need may be in other offices, in other
states. Here, tenacity is the key. In principle, the judgment creditor can take
whatever discovery is necessary to find out what assets the company has and
where they are located. Procedures vary, and a judges permission may be required at certain stages.
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199
EXECUTION
Once you have found assets, then what? How can you translate them into
money to pay your judgment? It depends on the type of asset. We describe the
procedure for three of the main kinds of property: real estate, tangible personal property, and money. These procedures vary from state to state, and you
must follow the laws of the state in which the property to be seized is located.
When we seize and sell a particular item of property to pay a judgment, we
say that we are executing on that item of property.To execute on real estate,
the first step in most states is to obtain a judgment lien. A lien is a security interest, similar to a mortgage, giving the lienholder the right to have the property sold to pay off a debt. There are many kinds of liens, most of which do not
concern us here; a lien that comes from recording a judgment is called a judgment lien. In some states, a lien on the judgment debtors real estate automatically arises when the judgment is entered; in others, it is necessary to
record the judgment at the office of the county recorder or docket the judgment with the clerk of the court in the county where the real estate is located.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Once the judgment lien is in existence, the judgment debtor can have the
property sold and the proceeds applied to pay the judgment. In some states,
the judgment creditor must foreclose the judgment lien in the same way that
a lender forecloses a delinquent mortgage. In general, this is done by filing a
suit for foreclosure in court and obtaining a court order to have the sheriff (or
some other court officer) sell the property at auction. Still another lawsuit?
Yes; the problem is that, often, the judgment debtor is not the only one with
rights to the property. There may be lenders, co-owners, lessees, spouses,
partnerseveryone who has an interest in the property must be notified and
given a chance to salvage what is theirs. If the property is the judgment
debtors house, the situation is even more complicated, because the exemption laws may apply to all or part of the judgment debtors equity. There may
even have to be a trialand an appeal! In other states, real property can be executed on and sold in a manner similar to that used for personal property (see
later discussion).
You will probably be relieved to know that we do not expect you to master the intricacies of foreclosure law hereit is a specialty to which some
lawyers devote their entire careers. For our purposes, the message is just this:
The judgment creditor should routinely record the judgment in the county
recorders office of every county where the judgment debtor may have real estate, and can then (eventually) get a court order to have any nonexempt real
estate sold at auction.
Tangible personal property means things. It does not include real estate
nor does it include bank accounts, contract rights, or anything else that has
no physical existence (such things are not tangible). Examples of tangible personal property are furniture, cars, tools, jewelryanything that can be physically held or touched. To execute on tangible personal property, we obtain a
writ of execution from the clerk of the court. A writ of execution is a court order directing the sheriff (or other law enforcement official) to go levy on
(seize) specific property and sell it at public auction. The judgment creditors
lawyer prepares the writ of execution, which is a court paper, typically a oneor two-page printed form with an attached list of property to be levied on. The
Putting It
Into Practice:
How would you record a
judgment lien against
Park Hotels Group if they
did business in your
state?
200
Putting It
Into Practice:
Would there be any
reason to secure a writ
of execution in
Shannons case?
CHAPTER 8
clerk of the court issues it more or less on request, without the judge having
to be involved. The procedure to be followed by the sheriff in seizing and selling the property varies considerably from one state to another because each
state has statutes that set out the requirements.
As a practical matter, writs of execution on tangible personal property are
rarely of much use. There are several reasons: First of all, by the time a judgment is entered and a writ issued, the judgment debtor has had plenty of warning, and any tangible property of any value is likely to be long gone or well hidden. Second, when the deputy sheriff goes out to levy on the property, he
cannot enter private property and conduct a search without permission. If the
owner of the premises refuses to let the deputy sheriff in, telling him that the
property sought is not there, the sheriff will simply return the writ nulla
bonanothing found. And finally, most of the common kinds of used personal
property are unlikely to sell for much money at an auction. Execution on tangible personal property works best when there is some object that is large and
difficult to hidemachinery, sayand the judgment creditor knows exactly
where it is and can lead the deputy sheriff to it.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
Putting It
Into Practice:
Under the garnishment
statutes in your state,
what would Allen Porter
have to do to garnish
Park Hotels Groups
bank account?
The best and easiest assets to execute on are, of course, money and other
financial assets. Not cash, of course, because it is too easy to hide. A judgment
creditors best targets are accounts in banks, stockbrokerages, and other financial institutions, because they generate a constant flow of statements and
records, all of which can be subpoenaed from the institution if necessary, making the money relatively easy to trace. If the judgment debtor transfers money
from a known account trying to make it disappear from the radar screen, the
judge can simply order her to transfer it back, under threat of jail.
How do you execute on a bank account? A bank account is actually a debt
owed by the bank to the account holder. When you deposit money in a bank
account, you are, in effect, lending the money to the bank. What we need,
therefore, is a procedure that we can use when we find someone who owes
money to the judgment debtor, and force them to pay us the money instead.
That procedure is called garnishment. When you garnish, say, a bank account,
you are simply having the court order the bank to take the money that it owes
to the judgment debtor and pay it to the judgment creditor instead. Naturally,
the procedure is more complicated than that, and the bank must be given an
opportunity to be heard, in case (for example) it disagrees about how much it
owes the judgment debtor. But, in principle, any time you can find a debt owed
to the judgment debtor, you can, via a writ of garnishment, step in and collect
it on behalf of the judgment creditor. A writ of garnishment is a court order directed to the person who owes the judgment debtor money. It is issued by the
clerk under procedures that vary from state to stateconsult your local garnishment statute.
Your Local Notes
__________________________________________________________________________
__________________________________________________________________________
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The same procedure is used to seize the judgment debtors wages. Wages
are, again, in essence a debt owed by the employer to the employee. Here,
however, there are limits imposed by federal law, as already noted: You can
never seize more than one-fourth of the employees take-home pay, or leave
the employee with less than thirty hours per week of pay at minimum wage.
There are, of course, many other procedural weapons in the judgment collectors arsenal. Nearly all are creatures of state law, and each state has its own
procedures. One of the requirements to use most of these weapons is that you
must produce a final judgment that the clerk of the court, county recorder, or
other official is willing to recognize. If your judgment comes from a court in the
same state, at most you will need to get a certified copy from the clerk of the
court that issued it. Federal judgments are entitled to the same treatment as a
state court judgment; see 28 U.S.C. 1962.
If you have a judgment from one state and are chasing property in another
state, however, the problem becomes more complicated. Although every state
must give full faith and credit to the judgments of every other state, it may
be necessary to go through additional procedures in the target state to have
the judgment accepted. In some states, registering an out-of-state judgment is
relatively simple: You can file the judgment with the clerk of a court in the target state, together with some additional papers and a filing fee. In others, it is
necessary to sue on the judgment; that is, file a whole new lawsuit in the target state based on the debt created by the judgment, and obtain a new judgment in the target state!
201
Putting It
Into Practice:
If Park Hotels Group did
business in your state and
Allen Porter had a
judgment against Park
Hotels Group from
another state, what
would Mr. Porter have
you do to register the
judgment in your state?
202
Putting It
Into Practice:
If your dog bit a house
guest and you were afraid
of losing your limited
assets if you were sued,
how would you go about
protecting those assets
from being seized?
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When the judgment is against a business entity, instead of an individual, exemption laws do not apply. Now the bankruptcy laws take on great importance.
Chapter 11 of the bankruptcy act allows corporations and other business entities to file for reorganization under the bankruptcy laws. The bankruptcy
court has the power to approve a plan for dealing with creditors that will allow the business to remain viable. Usually, the plan will involve paying off
debts over a long period of time and at a substantial discount. Reorganization
does not usually result in the judgment debtor making a clean getawaysome
amount will have to be paid sooner or laterbut once a Chapter 11 filing has
occurred the judgment creditor is unlikely to see his money any time soon.
Judgment debtors who do not mind breaking the law (and there are surprisingly many of them) can make collection difficult or impossible by the simple expedient of transferring their property to someone else. Consider a simple
hypo: Joe Sixpack crashes into your car and breaks your arm, so you sue him
and get a judgment for $50,000. Joe has plenty of money. He also has a sister,
Jane, whom he trusts completely, and who lives in another state. Before you can
execute on your judgment, Joe makes a gift to Jane, and all Joes money winds
up in Janes bank account. Now what? You do not have a judgment against Jane!
Most states have laws against so-called fraudulent conveyances. In general, a fraudulent conveyance is any transfer made by a judgment debtor that
leaves him without sufficient assets to pay the judgment. The specifics of
fraudulent conveyance laws are quite technical, and not all transfers will be
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found fraudulent. The real problem for the judgment creditor, however, is this:
Once the transfer is made, the assets are in the hands of someone else, against
whom there is no judgment. Before you can garnish the money in Jane Sixpacks account, you need a judgment against Jane. The fraudulent conveyance
laws probably entitle you to ask for one, but getting it may take the equivalent
of another lawsuit! And by the time you get the judgment against Jane, she may
have given the money to her cousin Bob. . . .
Perhaps, by now, you are beginning to understand why most lawyers avoid
suing individuals unless they have insurance. As a practical matter, individuals (and small business companies) who are sufficiently determined can make
judgment collection so difficult as to not be worth the expense.
Your Local Notes
203
Putting It
Into Practice:
What should Allen Porter
anticipate Park Hotels
Group might do to avoid
collection? What could he
do in response?
__________________________________________________________________________
__________________________________________________________________________
APPEAL
Well, Chuck, thats how I spell relief, said Allen Porter, hanging up the
phone. S-u-p-e-r-s-e-d-e-s.
They filed the bond?
Yesterday. I was pretty sure Gail was bluffing about them being judgment
proof, just trying to con me into taking their $100,000 settlement offer.
Putting It
Into Practice:
What would be the
benefits of working as a
paralegal for an attorney
who had primarily a debt
collection practice? What
would be the downside?
204
Putting It
Into Practice:
If Park Hotels Group
appeals and Shannon
cross-appeals, who will
be the appellant?
The appellee?
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You must have been sweatingif they really hadnt had any assets we
could execute on, and you turned down $100,000. . . .
Thats why you always, always, keep the clients informed and let them
make the final decision. With proper advice, of course.
An appeal is a procedure for challenging the decision of the trial court. The
court of appeals has the power to reverse the trial courts decisionthat is, to
set it asideor to affirm, and let the trial courts judgment stand as it is. If the
court of appeals reverses, the case will ordinarily be sent back to the trial
court for a new trial. However, if the court of appeals is able to determine from
the record what the trial court decision should have been, it may not be necessary to retry the case. The court of appeals will simply instruct the trial
court to enter a different decision.
Appeals are about error. Before the court of appeals will reverse or modify
a trial court judgment, the court must be persuaded that reversible error was
committed in the trial court. Not all error is reversible error. Probably no case
makes it all the way to judgment without a few errors along the way, and if the
errors are trivial, or if they did not affect the ultimate outcome of the case, they
will be branded harmless error and the judgment will be affirmed in spite of
them. Reversible error comes in many flavors; a few common ones are allowing
evidence that should have been excluded, refusing to allow evidence that
should have been admitted, or misstating the law in a jury instruction, or refusing to give a jury instruction that should have been given. Reversible error
can also come from the judges rulings on various pretrial motions.
One kind of error that courts of appeals generally never address is error
committed by the jury in deciding the facts. The jury had the opportunity to
hear the witnesses in person and observe them, while the court of appeals has
only the cold, sterile record. The court of appeals will not substitute its judgment for that of the jury. The court of appeals reviews the process of a trial, not
the outcome. The court will reverse if the process was not conducted according
to the rules, but will not reverse merely because the members of the court of appeals would have reached a different verdict than the jury did. (Of course, one
part of the process is the motion for judgment notwithstanding the verdictif
the verdict is so clearly contrary to the evidence that reasonable minds could
not differ, then the trial judge should have granted judgment n.o.v., and the
court of appeals can send the case back with an order to do so. In that sense,
the court of appeals can review the outcome in an extreme case.)
Normally, appeals involve only one or a few specific errors (or claimed errors). The court of appeals does not comb through the whole record looking
for mistakes. It is up to the appellant to do that, and to specify exactly what errors appellant is asking the court of appeals to consider. We will discuss the
procedures for doing this, but first we need to review some terminology.
The party who starts the appeal is called the appellant. All other parties are
called appellees. Notice that the appellant may be either the plaintiff or the defendant. Usually, the appellant is the party that lost the case, but it is also possible for the winner to appeal. For example, plaintiff may win a substantially
smaller amount of money than expected and decide it is worth going through the
delay and expense of an appeal in order to get a chance at another shot with a
different jury. (Of course, for this tactic to succeed, plaintiff will have to find
some reversible error on which to base the appeal.) There can also be cross-appeals; in fact, when the loser appeals, it is quite common for the winner to crossappeal. In our hypo, for example, Park Hotels has appealed. Allen Porter will at
least consider a cross-appeal on Shannons behalfotherwise, the court of appeals will hear about, and possibly reverse, those of the trial judges rulings that
Park Hotels did not like, but will never hear about whatever erroneous rulings
went against Shannon. If the case should be reversed, the rulings adverse to Park
Hotels will be changed, and the ones adverse to Shannon would stay the same.
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205
An appeal can be made only after a final judgment is entered. This rule may
not seem to make much senseafter all, if the judge makes some fatal error early
in the case, why should you have to waste time and money litigating to a final
judgment, only to have the case sent back for a new trial? The reason for prohibiting interlocutory appealsappeals taken before the case is over and judgment enteredis simple expediency. Appellate courts are afraid (probably with
good reason) that cases would be appealed piecemeal, with one attorney or the
other running off to the court of appeals every time the trial judge made a decision on some minor motion. There are a few limited ways to get interlocutory review (see sidebar), but, on the whole, the final judgment rule is strictly enforced.
The appeal process begins with the appellant filing a notice of appeal with
the clerk of the trial court. (The court of appeals is a different court, and it has
its own clerk and administrative staff.) The notice of appeal is a court paper, typically one page, which simply says that the party filing it is appealing. The notice of appeal sets in motion a chain of events that varies somewhat from court
to court. In the federal system, the courts of appeals follow the Federal Rules of
Appellate Procedure, which is another set of rules nearly as extensive and complicated as the Federal Rules of Civil Procedure. Each court also has local rules.
State appellate courts also operate under a separate set of rules that are applicable only to appealstypically, the rules of civil procedure that govern the trial
courts do not apply, because appeal proceedings are quite different from trials.
After the notice of appeal is filed, several things must happen more or less
simultaneously; the exact procedure for doing them is prescribed by the rules.
The trial court must transmit the record to the court of appeals. The entire
record can be huge. It includes the transcript of the trial, the trial exhibits, the
entire court file containing the pleadings and other court papers, and, potentially, various court papers pertaining to discovery, which, under modern
practice, may not have been filed with the court. Therefore, there will likely be
some procedure whereby the parties can designate the parts of the record
that they intend to use in the appeal, so as to avoid having to prepare and
transmit unnecessary items. Arrangements must be made for the court reporter to transcribe the shorthand notes and prepare a typed or printed transcript of the testimony. Preparing and transmitting the record typically takes
several weeks to several months.
Once the record has been transmitted, the parties will have a short time in
which to submit written arguments, called briefs. The content of a brief is similar to that in a legal memorandum in support of a motion in the trial court. That
is, it consists of an argument, citing authorities (statutes and reported appellate
cases), giving reasons why the court of appeals should reverse or not reverse
the case. Briefs are, however, much more formal documents than trial court motions. Appellate court rules typically require briefs to be bound like a booklet,
to include a table of contents, table of cases cited, and other formal niceties, and
to conform to quite picky rules of style and layout. (One stylistic matter that all
beginning lawyers and paralegals suffer through at first is the requirement that
citations of cases and other authorities conform to very finicky rules that say
how each source must be abbreviated, what order sources are cited in, and even
where the periods, commas, and parentheses go. Appellate briefs reach a much
higher level of fastidiousness than typical trial court motions.) There will also
be a page limit, and the clerk will refuse to accept briefs that exceed it.
Putting It
Into Practice:
Why do you think the
rules surrounding briefs
are so exacting?
206
CHAPTER 8
SIDEBAR
Interlocutory Appeals
As you might expect, attorneys are always looking for ways to get around
the final judgment rule. It can be a bitter pill to swallow when the trial judge
makes some absurd ruling (yes, this does occasionally happen!) that essentially
destroys your case, and you have to waste months or years and spend tens of
thousands of dollars of your clients money taking the case to trial, before you
have a chance to ask the court of appeals to fix the problem. Or, if you represent a defendant in a suit where plaintiffs claims are essentially frivolous and
should be dismissed out of hand, you can become frustrated when the trial court
denies your motion for summary judgment. Now your client has to bear the expense of a trial, spending huge sums that she will probably never get back.
Putting It
Into Practice:
Suppose in Shannons
case the judge makes a
ruling that is critical to
Shannons position and
that involves an unsettled
area of law in that
jurisdiction. What might
Allen Porter do if the
ruling is adverse to him?
What should Allen Porter
have done to prepare for
such an eventuality prior
to the ruling?
A few strategies are possible that can be tried in such situations. One involves so-called extraordinary writs. These are (or evolved from) arcane appellate court petitions with names that reek of history, like certiorari, or
mandamus, or quo warranto, that were originally intended for other purposes, and have been bent to the task of giving the court of appeals an excuse
for reaching down and fixing a particularly egregious trial court mistake. The
procedures involved vary enormously from one court to another, and we will
not attempt to elucidate them here. These petitions are often tried and seldom
successful.
In federal court and in some state courts, the trial judge has the power to
certify a ruling for immediate appeal. Naturally, the trial judge will do this
only if the ruling is important and the judge is in some doubt about its correctness. Also, under FRCP, Rule 54(b), the trial judge can declare a judgment that
disposes of part but not all of the lawsuit to be final for appeal purposes; this is
often done when, say, the judge grants summary judgment as to some defendants but sets the case for trial as to the others.
Briefs are filed with the clerk of the court of appeals, in the familiar threestage sequence: appellants opening brief, giving reasons why the court of appeals should reverse the trial courts decision; appellees responding brief, arguing the contrary; and finally, appellants reply brief, typically much shorter
than the other two, in which appellant answers any new arguments raised in
appellees responding brief. Appellate court rules provide for time deadlines
for filing these briefs that are typically about a month apart. In practice, the
opposing lawyers often agree among themselves to extend the deadlines,
since it is a major undertaking to do a professional job on an appellate brief,
and a few extra weeks spent on the briefs makes little difference in the context
of an appeal that will likely drag on for at least another year.
Tedious and slow though it may be to take a case from complaint to verdict, trial courts move at supersonic speed compared to the glacial pace of
most appellate courts. After all the briefs have been filed, the appeal is said to
be at issue; the next step is to wait for the court of appeals to take up the
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case for decision. This can take anywhere from six months to several years,
depending on the court and the level of its backlog.
At some point, the appeal will be assigned to the panel of judges that will
decide it. Appeals are heard and decided by panels of (typically) at least three
appellate court judges. Often, the judges making up the panel will meet with
each other periodically and divide up their pending cases, so that each appeal
will be assigned to one judge for a preliminary workup. Each appellate judge
has one or more law clerks (clerking for an appellate judge is a sought-after apprenticeship for new lawyers) who will be assigned the work of reading the
briefs, researching the legal issues, and making recommendations to the
judge.
Appellate cases can be decided either with or without oral argument. In
some cases, the parties may decide to waive argument (or not request it) and
submit the case for decision on the written briefs. Why? Typically, because it
gets the case decided faster! In others, the court of appeals may not wish to
hear argument.
When argument is allowed, the attorneys appear at the court of appeals
courtroom at the designated time and present a formal argument. Unlike arguments on trial court motions, appellate arguments are formal affairs, never done
in chambers, and each side will be under strict time limitsthe court will cut the
lawyers off in mid-sentence if they try to keep talking after the time runs out. As
a rule, appellate judges tend to be well prepared for argument, and will have read
and understood the briefs. Therefore, the attorneys will not be allowed simply to
repeat what is in the briefs. Most of the argument time will be spent answering
pointed questions from the judges, not only about the case being decided, but
also about any cases cited as authorities in the briefs. Skillful appellate lawyers
learn to work their best arguments into their answers to the judges questions.
At some time after hearing argument (or earlier, if the case is not to be
orally argued), the panel of judges who will decide the appeal holds a conference, makes a tentative decision, and assigns one of their number to write an
opinion. This written opinion will not only decide the case, it will also describe
the pertinent facts, indicate what questions the court is deciding, and explain
the decision and the reasons underlying it. Other members of the panel may,
if they wish, write concurring opinionsopinions agreeing with the result but
disagreeing with all or part of the reasoning in the main opinionor dissenting opinionsopinions disagreeing with the result reached by the majority of
the panel. Appellate court opinions like these serve both to inform the parties
of the outcome of the appeal and as a part of the common law, furnish rules to
be applied in future cases.
Once the opinions have been completed, copies are sent to the attorneys.
Several months typically elapse between oral argument and announcement of
the decision. At the same time or within some short time period thereafter
(prescribed by rules), the court of appeals issues a mandate. A mandate is an
order telling the trial court what to do next. The appellate courts decision
may require a new trial, require the trial court to change the judgment in some
way or follow other specific instructions, or simply sustain the trial courts
judgment.
For the party who loses the appeal, this is not quite the end of the appellate road: The state supreme court can be asked to review the court of appeals
decision. The procedure for asking for this additional review varies, but it is
(almost) always discretionary. The supreme court can, and usually does, refuse
to consider the matter, in which case the court of appeals mandate will stand
and little if any additional time will be lost. If the supreme court does decide to
review the appeal, the decision process will begin again in the supreme court,
and additional months or years will pass before the supreme court issues its
own written opinion and mandate.
207
Putting It
Into Practice:
Why do you think
attorneys often advise
clients not to appeal
a judgment?
208
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Putting It
Into Practice:
If paralegals do little in
the way of research and
writing briefs, why do
most paralegal training
programs require research
and writing classes?
CHAPTER 8
from some anonymous Delaware hotel company just wasnt very satisfying,
somehow, although she could certainly use the cash.
Now, finally, it was over.
Had it all been worth it?
Shannon could not say.
ETHICAL ETIQUETTE
209
210
CHAPTER 8
PRACTICE POINTERS
Locating Assets of Judgment Debtors
Once you have obtained a final judgment against a defendant (or against the
plaintiff on a counterclaim or an award for attorneys fees and/or costs) the
process of collecting on the judgment begins. Many states have enacted the Uniform Enforcement of Foreign Judgments Act, or some amended version, that allows for the registration of any judgment not entered by that states courts to be
registered, and enforced, as if the judgment was rendered by that states court.
Usually before, but certainly after registration of the judgment, the county
recorders records should be checked to see if any real property is held in the
county by the judgment debtor. The county assessors records should also be
checked for records of certain personal property (such as mobile homes) and
to give an idea of the value of the property.
The states corporation commission should always be reviewed for corporate debtors to make sure they are still lawfully doing business. In many
states some bare-bones financial records are part of the corporations annual report. Usually the names of officers and directors, and their addresses,
are also available.
Databases can be searched to find out if an individual defendant is a shareholder or officer or director of a corporation or a partner of a partnership or
member of an LLC. Many states that mandate disclosure, however, require that
only 10 or 20 percent or greater equity owners be listed.
If your state registers LLCs and partnerships at the corporation commission, you can find information on the entity at the commission. Some
states make it the responsibility of the secretary of state to maintain entity
information.
Checking the secretary of states office for UCC (uniform commercial
code) filings can help determine if the debtor has borrowed money using personal property as collateral. If the debtor has made secured loans on personal
property she should be listed as the secured party on the UCC-1 financing
statement. This type of information can be especially helpful if your other efforts turn up empty. You could subpoena the file of the secured creditor to determine what assets were listed by the debtor to obtain the borrowed funds.
As the Internet becomes more sophisticated, new search engines are sure
to be developed to assist in locating assets and the current engines refined to
be of greater assistance.
TECHNO TIP
When searching for the assets of debtors,
do not forget to search the debtors and
his spouses (if there is one) names separately. Some search engines (both on the
Internet and governmental database engines) often search for the exact search
term submitted. If the phrase John Doe
and Jane Doe is used, many search engines will not list any Jane Doe hits that
CHAPTER 8
S U M M A RY
The entry of judgment marks the end of the trial phase of a lawsuit but not necessarily the end of the dispute. If the judgment is in favor of the defendant for
costs but not for attorneys fees, the plaintiff has the option of giving up or appealing. The situation is more complicated if the judgment involves a significant amount of money. In that case the judgment creditor may try to collect
the monies awarded in the judgment and the judgment debtor may appeal.
A judgment creditor can begin collection proceedings immediately after
the judgment is entered unless a motion for a new trial has been filed or a stay
has been obtained. A stay can be obtained by posting a supersedes bond or it
occurs automatically when a judgment debtor files bankruptcy. In federal court
a ten-day waiting period is required before collection proceedings can begin.
Collectibility of a judgment is a key fact of litigation. Prior to filing suit, the
plaintiff should take steps to ensure that a judgment can be collected. A judgment can probably be collected against a defendant corporation that appears
solvent or a defendant that has sufficient insurance coverage. If a plaintiff can
prove that punitive damages are justified, she is warranted in doing discovery
that will reveal the defendants assets. A judgment debtors property and
wages are protected to some extent by exemption statutes but the judgment
can be executed through the seizure of any nonexempt property.
A judgment debtors examination is used to determine the assets of a judgment debtor. These exams may be conducted at the court under the indirect
supervision of a court officer or at the office of the attorney representing the
judgment creditor. These exams are similar to a deposition; a court reporter
may or may not be used. Judgment debtors are often summoned using a subpoena duces tecum so that they bring the documents containing the information necessary to locate and seize the debtors assets. Tenacity is required
when dealing with corporations of any size because they often do all they can
to stonewall the process.
A judgment lien must be obtained before executing on real estate. This lien
arises automatically in some states when the judgment is entered and must be
recorded with the county recorder in other states. The judgment creditor can
then file a suit for foreclosure, have the property sold, and apply the proceeds to
the judgment. This process becomes more complicated if others also have rights
to the property or if the property in question is the judgment debtors home. Judgment creditors are strongly urged to record a judgment in the county recorders
office of every county in which the judgment debtor may own real estate.
To execute on tangible personal property a writ of execution must be obtained from the court clerk. As a practical matter these writs are of little value
because by the time they are issued judgment debtors have often hidden or
disposed of the property, the judgment debtor can refuse to allow the sheriff
to enter his property when the sheriff arrives to levy on the property, and most
such property is unlikely to sell for much at an auction.
The best assets to execute on are money and other financial assets that
can be easily traced, such as bank accounts. To execute on a bank account, a
writ of garnishment must be filed. The same procedure is used to seize a judgment debtors wages; the procedures for garnishment vary from state to state.
To execute any judgment, a copy of the final judgment must be presented.
If the judgment comes from a court in the same state, a certified copy from the
court clerk that issued it will suffice. If the judgment comes from a state other
than the one in which the judgment creditor is seeking to execute property,
the procedures can be more complicated; in some states it is necessary to sue
on the judgment by filing another lawsuit.
211
212
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Judgment debtors can escape paying judgments by converting their assets into exempt assets (which can be done even after a judgment is entered),
by filing for bankruptcy, or by moving to another state or foreign country. Doing the latter does not prevent the judgment creditor from pursuing the judgment but makes it more difficult and expensive to do so. Debtors can avoid
personal liability by incorporating although the corporate shield does not protect lawyers and doctors from being liable for malpractice. Exemption laws do
not apply to businesses and creditors can reach judgment debtors who have
declared Chapter 11 bankruptcy but they are delayed in satisfying their judgment. Judgment debtors who are involved in fraudulent conveyances can frustrate judgment creditors (even though such transfers are illegal) by requiring
them to get a judgment against the individual to whom the property was given.
Collection of judgments is rarely a problem in personal injury practice because the target of litigation is almost always an insurance company. Collection problems often do arise in commercial litigation, however, because the
targets are often able to afford the considerable effort required to escape payment. Attorneys with debt collection practices often rely extensively on legal
assistants because of the high volume and routine nature of their cases.
Appellate courts will reverse or modify a trial courts judgment if they believe reversible error has been committed. Reversal usually requires a new
trial, although an appeals court may simply instruct the trial court to enter a
different decision if the record reveals what the decision should have been.
Appellate courts review the process followed by the trial court and not the outcome; therefore, they will not substitute their judgment for that of the jury. Appellants must specify the errors they believe were committed at the trial level;
the appellate court will not comb the record looking for errors. Appellees also
have an opportunity to file cross-appeals. Appeals cannot be taken before a final judgment is entered. Interlocutory appeals are prohibited out of a desire
to prevent appeals from being made on a piecemeal basis. In the federal courts
a trial judge can certify a ruling for immediate appeal if the ruling is very important and the judge has some doubt regarding the correctness of her ruling.
To initiate an appeal the appellant must file a notice of appeal with the
clerk of the trial court. The trial court must then transmit the trial record to
the appellate court. The parties can indicate the parts of the record they intend to use in the appeal so that not all of the record has to be transmitted.
The court reporter prepares a transcript of the testimony. Once the record is
transmitted, both parties submit written briefs, which must conform to strict
stylistic rules and fall within designated page limits. The appellants opening
brief is followed by the appellees responding brief, which is followed by the
appellants reply brief. Several months or even years may transpire after the
appeal is at issue until the appellate court hears the appeal.
Appeals are typically heard by panels of three judges. Each of the judges
has one or more law clerks who read the briefs, research the issues, and make
recommendations to the judge. Oral arguments, which may be waived by the
parties, are formal arguments made within strict time limits during which the
attorneys must respond to pointed questions posed by the appellate judges.
After oral arguments, the judges meet in conference, make a decision, and assign one of the judges to write an opinion. Other judges may prepare concurring or dissenting opinions. Copies of the opinion are sent to the attorneys and
a mandate is issued to the trial court. The party who loses the appeal can try
to appeal to the state supreme court although supreme courts usually deny
such requests. If the supreme court denies review, the mandate of the court of
appeals stands.
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213
KEY TERMS
Authorities
Cross-appeal
Execution
Fraudulent conveyance
Garnishment
Interlocutory appeal
Judgment creditor
Judgment debtor
Reply brief
Responding brief
Reversible error
Stay
Supersedes bond
Writ of execution
Workshop Alert
The following workshop correlates well with this chapter and you would be well advised to work with it.
Workshop 18
REVIEW QUESTIONS
1. What is the relationship between a judgment
creditor and judgment debtor?
2. How are appeals and collections connected?
3. Must a judgment creditor wait before an appeal is
decided before being able to collect a judgment?
a. How can a judgment debtor prevent a judgment creditor from collecting a judgment?
b. How can a judgment debtor obtain a stay?
c. How does a supersedes bond protect a judgment creditor and assist a judgment debtor?
4. How can a plaintiff determine whether he will
be able to collect a judgment against a defendant? Is it reasonable to assume that one can
collect on a judgment levied against a defendant who is working? Why or why not?
5. What occurs at a debtors exam? Why is a subpoena duces tecum often used to summon a
judgment debtor to a debtors exam?
6. What is meant by executing on a piece of real
property?
a. How does one execute on real estate?
b. How does a judgment lien help a judgment
creditor to collect a judgment?
c. What is the potential problem with judgment
liens?
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214
PRACTICE EXAM
(Answers in Appendix A)
MULTIPLE CHOICE
CHAPTER 8
215
MULTIPLE CHOICE
(Answers in Appendix A)
6. A judgment lien
a. may arise automatically when a judgment is
entered.
b. may not arise until the judgment is recorded
at the county recorders office.
c. may have to be foreclosed by the judgment
creditor.
d. all of the above.
7. Writs of execution on tangible property
a. are seldom useful because once they are obtained the judgment debtor has already disposed of or hidden the property.
b. allow the sheriff to search the judgment
debtors property without the debtors permission.
c. must be prepared by a judge.
d. all of the above.
8. To execute on a judgment
a. the judgment creditor must first realize that
not every state gives full faith and credit to
judgments of other states.
b. the judgment creditor must file a whole new
lawsuit.
c. the judgment creditor must be able to produce a final judgment that is recognized by
the clerk of the court or the county recorder.
d. all of the above.
9. Judgment debtors
a. cannot protect their assets by converting
them to exempt assets.
b. are not protected by the corporate shield if
they are doctors or lawyers.
c. are not allowed to file bankruptcy and
thereby escape paying a judgment.
d. are protected from a paying a judgment if
they move to another state because judgment creditors cannot pursue assets in another state.
10. An example of reversible error is
a. failure to give a jury instruction that should
have been given or misstating the law in a
jury instruction.
b. error on the part of the jury in rendering its
decision.
c. refusing to allow evidence that should have
been admitted or admitting evidence that
should not have been admitted.
d. a and c.
11. Once the appellant files an opening brief
a. the appellee files a reply brief.
b. the appellant has no more opportunities to
respond to the appellee.
c. the parties have an opportunity to make oral
arguments almost immediately.
d. none of the above.
_______________ .
_______________ .
216
CHAPTER 8
called a _______________ .
out a _______________ .
TRUE OR FALSE
27. Appeals and collections are separate processes
although they are related strategically. T F
28. A judgment creditor can begin collection procedures immediately although in federal court a
thirty-day waiting period is required.
T F
CHAPTER 8
39. Having a judgment lien guarantees the judgment creditor of being paid.
T F
40. In some states a judgment creditor with a judgment lien has to file suit for foreclosure and obtain a court order requiring the sheriff to sell
the property at auction.
T F
41. A judgment creditor should record a judgment in
the county recorders office of every county in
which the judgment debtor may have real estate.
T F
42. One of the best assets to execute on is bank accounts.
T F
43. A judgment creditor cannot collect on a debt
owed to a judgment debtor through the process
of garnishment.
T F
44. If a judgment creditor has a judgment from a
state other than the one in which the debtors
property is located, the judgment creditor need
only produce a certified copy of the judgment
to the clerk of the court in the target state in order to execute on the judgment.
T F
45. Not every state gives full faith and credit to
the judgments of other states.
T F
46. Each state has its own procedures regulating
the registration of judgments.
T F
47. One of the main reasons for forming corporations is that in the event of a lawsuit the corporation rather than the shareholders are liable.
T F
48. The corporate shield does not protect lawyers
and doctors from being personally liable for
malpractice.
T F
49. A judgment debtor cannot take assets that
could be seized and convert them into exempt
assets after a judgment has been entered.
T F
50. Exemption laws do not apply to business entities.
T F
51. When a judgment debtor files Chapter 11 bankruptcy the judgment creditor finds it easier to
get the judgment paid.
T F
52. Judgment debtors can legally escape paying a
judgment by gifting their assets to a family
member.
T F
217
53. Despite the fraudulent conveyance laws, judgment creditors will often find it expensive and
burdensome to seize assets once the judgment
debtor has transferred them to someone else.
T F
54. The collection of judgments is frequently a
problem in personal injury litigation but rarely
a problem in commercial litigation.
T F
55. Legal assistants are utilized extensively by attorneys who specialize in debt collection.
T F
56. If an appellate court reverses a decision of the
trial court, the case must be retried.
T F
57. An appellate court will not reverse or modify a
trial courts judgment if the trial court committed harmless errors.
T F
58. An appellate court will reverse a trial court decision if it would have reached a different verdict than the jury did.
T F
59. Part of the appellate courts task is to comb
through the record looking for errors. T F
60. Only the losers in lawsuits file appeals.
CHAPTER 8
218
LITIGATION LINGO
(Answers in Appendix A)
Unscramble the following words:
1. YOURNITELCTOR
2. YAST
3. DESREPUSSE DONB
4. RAGSHIN
5. TENLUARFDU YENEVOCACN
6. BELVERIRES
Type of trial court error that will result in appellate court changing
trial court judgment
7. EPELPALE
8. LYPER
9. DMATENA
10. TOXICENEU
11. ROFOP
12. MAXEAOTININ
13. NIEL
14. SETUHROTIAI
CHAPTER 8
219
LITIGATION LOGISTICS
(Answers in Appendix A)
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1.
2.
3.
Suppose you obtain a judgment against the contractor who built your house and two of the
subcontractors and that the contractor files for
Chapter 11 bankruptcy. Will you be able to collect anything from the contractor?
a. What procedures must you follow to collect
on this judgment?
b. What must you do to arrange a debtors examination of the two subcontractors?
c. Suppose one of the subcontractors owns the
building in which his business is housed.
i. How would you go about obtaining a judgment lien on this property?
ii. What would you have to do foreclose on
this judgment lien?
5.
Suppose that during the trial involving your dispute with your cousin that the trial judge makes a
ruling that is critical to your case and that raises
an issue that is novel in your state. You want to
appeal this ruling before the trial goes on because
a change in this ruling could easily alter the outcome of the case. What would you have to do in
order to go forward with this appeal before the
end of the trial?
Suppose your cousin has countersued you on
what you believe are totally frivolous grounds.
You move to dismiss these claims but the trial
judge refuses to dismiss them. Do you have any recourse to the court of appeals or must you simply
expend the time and energy defending yourself
against claims you know to be nonmeritorious?
PROCEDURAL PONDERABLES
1.
WORKSHOP
What a Cause of Action IsThis workshop provides the answers to these questions. We will see
that what the plaintiff must prove is something
called a cause of action. Not all of the unpleasant
things that people do to each other will support a
lawsuitonly those particular categories of wrongful acts that the law recognizes as actionable wrongs
will suffice. You might think of a cause of action as a
kind of checklist that is used to determine whether
the facts of a particular case fall within one of the actionable categories. The individual items on the
checklist are called elements of the cause of action.
A simple example may make this clearer. In our
hypo, suppose Shannon wants to sue the Las Vegas
Police Department for false arrest. Obviously, not
everyone arrested by the police is entitled to sue.
We do some legal research and find that the law recognizes a tort called false imprisonment. We discover that the elements of false imprisonment are
(1) confinement (2) which is intentional, and (3) the
person confined is aware of the confinement or
harmed by it. Therefore, Shannon would have to
prove that she was confined; that the police intended to confine her; and that she was aware of being confined.
If Shannon fails to prove one of these required
elements, she loses (as to that cause of action; there
can be more than one in the same suit). One of the
common ways to defend a case is simply to try to
convince the judge (by motion for summary judgment) or jury (at trial) that one of the required elements of the cause of action has not been proved.
Another way for the defendant to win is to
prove an affirmative defense. Affirmative defenses
work exactly like causes of action: They are made
up of elements that you find by researching the substantive law. In our example, one affirmative defense to the tort of false imprisonment is called
privilege (or sometimes justification). We research
the elements of the defense of privilege and find
that a confinement is privileged if it is (1) done by a
222
SIDEBAR
Claims, Causes of Action,
and Theories of Liability
These three termsclaim, cause of action, and
theory of liabilityare often used somewhat interchangeably. All involve a single concept, namely,
a way of testing a specific set of facts to see whether
it is appropriate for the court to step in and make
someone pay.
If the defendants act (or failure to act) is of a
kind that the law recognizes as an actionable
wrong, then a lawsuit can be sustained. When we
say that a particular set of facts is actionable, we
mean that there is some cause of action that applies to it and that each of the elements of that
cause of action is present. Theory of liability usually
refers to the rationale offered by the plaintiff for
why the court should hold the defendant liable. As
a practical matter, theories of liability that are not
based on recognized causes of action do not usually get very far, so the two terms mean essentially
the same thing.
A claim is an assertion of liability based on a
single cause of action and made in an actual lawsuit. Again, because a claim is an assertion of a
cause of action, the two terms have similar meanings. Thus, the judge may ask, What claims has
the plaintiff alleged? or What causes of action
has the plaintiff alleged? or even What theories
of liability has the plaintiff alleged?
223
actually do this? Most emphatically, yes. In complex cases, even very experienced litigators routinely go through the process described in this
chapterthe mechanics may vary, some of the
steps may be delegated to clerks, but the thought
process is essential. In simple cases, experienced
litigators may not need the issue outline process
in every case, but that is merely because they
have already done it in so many similar cases that
they can now do it in their heads!
A properly prepared issues outline will yield
rich dividends as the case proceeds, and you will revisit it again and again. When you draft the complaint, it will provide a reliable way to be sure that
each claim states a valid cause of action, with no elements inadvertently left out. When the defendant
moves for summary judgment, you will immediately
be able to zero in on the issue and focus your research. The issues outline will make clear exactly
what facts you must prove, thus serving as a framework on which to base your discovery plan. Even at
the end of the case, when you are drafting jury instructions, the issues outline will tell you what instructions you need and what points need to be
covered in each.
Should the defendant make an issues outline?
Or can the defendant start with the causes of action
alleged in the complaint and ignore anything else
that might have applied, thereby avoiding the additional work of analyzing the case from scratch?
Sorry; the defendant should always defend on
the assumption that the plaintiff will make the best
case possible under the circumstances. Complaints
can be amended. What if the plaintiff changes
lawyers in midstream, the new lawyer takes a fresh
look, and suddenly the defendant is facing some
new theories? Furthermore, by analyzing the
causes of action for herself, the defendant can often
identify potential defenses that might otherwise be
overlooked.
The issues outline is not a court paper, it will
never be filed or seen by anyone outside your own
office. Therefore, do not hesitate to modify the format, layout, or organization in whatever way may
improve its usefulness for your particular project.
In particular, you may want to start each new cause
of action on a new page so as to be able to insert additional matter as you research. The steps for creating an issues outline are listed in Figure W11 and
discussed in more detail next.
Step 1
Step 2
224
Damages
Nature of damages
General
Special
Punitive
Extent of damages
Calculation of damages
Pain and suffering
Medical expenses
Property damage
Lost wages
Loss of consortium
Impaired earning capacity
Litigation expenses
DEFENSES TO NEGLIGENCE
Contributory negligence
Comparative negligence
Assumption of risk
INTENTIONAL TORTS
Assault
Intent
Apprehension of harm
Ability to carry out threat
Battery
Intent
Harmful contact
Offensive contract
False imprisonment
Intent
Confinement
Knowledge of confinement
Emotional distress
Intent
Outrageous conduct
Nature of emotional distress
Trespass to land
Intent
Enter or remain unlawfully
Contact with land
Revocation of permission to enter
Extent of liability
Trespass to chattels
Intent
Interference with chattel
Actual harm
Conversion
Intent
Interference with chattel
Transfer of title
Extent of harm
Defense of others
Extent of force
Imminent harm
Belief of actor
Necessity of force
Belief of person being defended
225
Reentry on land
Extent of force
Belief of actor
Purpose for entry
Consent of possessor
Necessity
Purpose of invasion
Public or private interest
Extent of invasion
Damages
STRICT LIABILITY
Intent
Liability for animals
Wild
Domestic
Abnormally dangerous activities
Defective products
Sale of product rather than service
Nature of defect
Time defect existed
Causation
Manufacture or sale by the defendant
Nature of the plaintiff (who can sue)
Nature of the defendant (who can be sued)
Assumption of risk
Statute of limitations or repose
MISREPRESENTATION
Intent
Intentional
Negligent
Innocent
Inducing reliance on misrepresentation
DEFAMATION
Harm to the plaintiffs reputation
Intent of the defendant
Status of the plaintiff (public official or public figure)
Interpretation of statement
Publication
Truth or falsity of statement
Damages
Privileged communications
NUISANCE
Substantial interference
Effect on the plaintiffs use of land
Plaintiffs interest in land
226
For this and other tort causes of action, an excellent starting point is the Restatement of the Law of
Torts. The Restatement is an attempt by a committee
of academic experts to summarize various tort
causes of action and list their elements concisely.
We might also consult a tort textbook such as
Prosser on Torts. Still another place to look is in the
appropriate topic (such as false imprisonment) in
a legal encyclopedia such as American Jurisprudence
or Corpus Juris Secundum. From sources such as
these, we should be able to obtain enough information to list the main elements of false imprisonment.
Then we refine our research by checking the
case law in our own state, for two reasons. One is
that substantive law varies from state to state, so we
want to be sure we are using the correct elements
for our state. The other is that the case law is where
we will find the detail necessary to resolve the subissues (such as deciding what confinement means).
Old fashioned as it may seem, the best way to access
the case law for our purposes is via the West Digest
system, because it is already organized in a way that
lays out the elements of the various causes of action
in an outline form. (We will visit this point again later
in the chapter.) On-line research can also be used,
but cautiously! A computer search does not necessarily ensure that you have found every single element of the cause of action you are researching
most of the cases you find will analyze one element
in great detail, rather than listing all the elements.
For other causes of action not based on tort, the
approach would be similar, but using sources appropriate to the cause of action and area of law in
question.
Step 3
As we consult the various research sources to outline each cause of action, we will also be on the
lookout for any defenses specific to that cause of
action (for example, privilege or justification as a
defense to false imprisonment). We list these in our
outline under the causes of action to which they apply. As with the causes of action, at this stage we
paint with a broad brush, listing any defenses that
might conceivably apply without worrying about
whether they can be proved or not.
There are also affirmative defenses that may apply to the entire lawsuit, rather than to individual
causes of action. FRCP, Rule 8(c), lists some of the
common ones. These include defenses that should
be considered in every lawsuit, such as statute of
limitations. [We will revisit Rule 8(c) in Workshop 8
on drafting responsive pleadings. Your instructor
will inform you of any local provisions similar to
Federal Rule 8(c) applicable in your state.]
Most of the Rule 8(c) defenses involve technicalities that go beyond the scope of this introductory chapter, so we will leave them for later. Keep in
mind, however, that a proper issues outline should
list the elements of any applicable affirmative defenses in the same way that we list the elements of
the causes of action. If you represent the defendant,
you should always run through a checklist of Rule
8(c) defenses to be sure you have considered each
one. If you represent the plaintiff, you should do the
same because you want to anticipate what defenses
your opponent is likely to raise.
In addition to the Rule 8(c) defenses, several
procedural defenses should be considered in every
lawsuit: jurisdiction of the person, jurisdiction of
the subject matter, venue, sufficiency of service of
process, and indispensable parties. To some extent,
analysis of these defenses will have to await the filing of the lawsuit because they depend in part on
where and how it is filed. These defenses involve
procedural issues that we have not yet covered, so
we will leave them aside for now.
Step 4
Following the methods described in Step 2, we determine and include in our issues outline the elements of each of the defenses we have listed.
Step 5
227
Step 6
How is Step 6 different from Step 5? Facts and evidence are not the same thing. A fact is some event
that happened; evidence is something we can use in
court to prove that the event happened. Shannon
tried the interrogation room door and it was
locked is a fact. Shannon could testify in court that
she tried the door and it was lockedher testimony
would be evidence. If that were our only evidence,
we might be concerned, because all it would take is
for a police officer to testify to the contraryat this
stage, we have no idea what the police officer will
sayand suddenly our proof of this fact is a long
way from a slam dunk. We might look for other evidence: Perhaps the lock on this door is designed so
that it is always locked and requires a key to open,
in which case we could obtain the manufacturers
specifications for the lock.
At this stage, we have assembled very little actual evidence. We take this opportunity to list, in
our outline, under each element of each cause of
action, all the evidence that we think we might be
able to get, through investigation, discovery, or
from the client. For example, under the damages
issue, we will need to prove the fact that Shannon
spent some specific amount of money for her emergency room treatment. As evidence of that fact, we
will need copies of the medical bills. We do not
have them yet, but we list them so that we will remember to obtain them.
ConclusionNotice that we have still not attempted to make judgments about which of our
causes of action will be used. We will do that as we
prepare the complaint. At this stage, we are wearing
our creative hat, in keeping with our purpose of
trying to think of every possible approach that
might benefit us. Later, we will put on our judgmental hat and take a critical look at each cause of
action, rejecting any that fail to advance our overall
strategy.
228
Step 1
Against Dr. Collins only, the obvious theories of liability are assault and battery. (Assault is one
cause of action, battery is another.) What other
causes of action might apply? We look through the
table of contents of the Restatement or of a torts
textbook, considering and accepting or rejecting
causes of action one by one. Many can be rejected
instantlythis is not a libel case or trespass on
landor is it? Maybe we should take a closer look
at trespass. Negligence is a real possibility: Dr.
Collins was evidently careless about making sure
which room he was entering. Outrageous conduct
causing mental distress is a cause of action under
the Restatement and in some states is one worth
considering. We may also take a look at the Nevada
statutes, since it is always possible that the Nevada
legislature may have created some cause of action
for, say, sexual assault.
Your Local Notes
Step 2
You will sometimes find that there are no appellate decisions in your state that specify the elements of a given cause of action. Then you will have
to use a secondary source such as the American
Law Institutes Restatement of the Law series. Here
is what the Restatement (2d) of Torts says about assault and battery:
_________________________________________________
_________________________________________________
Step 3
229
attempt to expand them at this point. If we represent the defendant, they will serve to remind us to
review these issues after the complaint is filed. If
we represent the plaintiff, it is our responsibility to
prepare and file the complaint in such a way as to
avoid creating these defenses. The steps we will
discuss in Workshops 2 and 3 are designed to help
us do this.
Step 4
In a real lawsuit, we would outline each of the possible defenses, at least to the extent of listing the elements. We would do this even for defenses that
seem unlikely to apply (i.e., privilege to arrest for a
crime). See the sidebar on analyzing a case.
Here, for brevity, we have shown how this
would be done for one defense, that of self-defense.
We begin with the Restatement formulation, found in
Restatement 2d, Torts, 63:
63. Self-Defense by Force Not Threatening Death or
Serious Bodily Harm
(1) An actor is privileged to use reasonable force,
not intended or likely to cause death or serious bodily
harm, to defend himself against unprivileged harmful or
offensive contact or other bodily harm which he
reasonably believes that another is about to inflict
intentionally upon him.
2.
3.
4.
5.
6.
230
SIDEBAR
Analyzing A Case: Top-Down
vs. Bottom-Up Approach
One wayoften the obvious or intuitive way
to analyze a case is to think about the fact situation and see what causes of action or defenses jump
into your mind to fit those facts. Almost always, a
trained lawyer or paralegal will be able to look at
a set of facts and say, Aha! Battery! or Aha!
Breach of contract!
Unfortunately, that method of analysis is almost certain to overlook other causes of action or
defenses that might turn out to be easier to establish. There are many possible paths to liabilityat
least as many paths as there are causes of action
and the one you want is the easiest and safest, not
the most obvious. Perhaps the case does look, superficially, like a case of battery, but maybe there is
a big problem with proving, say, intent. If you take
that path, eight times out of ten you would lose on
a motion for summary judgment on the intent issue. If you instead treated the case as a negligence
case, you would not have to prove intent, and you
would be almost certain of at least getting to tell
your story to a jury.
The only possible way to be sure that you have
selected the best possible path is to check out all
paths. There is no substitute for this. Some paths
will lead straight to the edge of a cliff and can be
rejected quickly. Others may require some research.
But we always at least consider every possible cause
of action and defense we can think of, even those
that may seem clearly inapplicable at first glance.
Remember, we do not have all of the facts yet.
One of the most important effects of taking this
top-down approach is that it makes us look at the
facts in a different way. Instead of trying to find
causes of action that fit the facts (the bottom-up
approach), now we can look for facts that fit the
various causes of action. Instead of reacting to the
facts as they are given to us, we can seize the initiative, decide what facts we want, and try to come
up with them.
Whew! Hopefully, you can see from this list of elements why it is impossible to decide whether you
have the facts to support a given cause of action
or defense without analyzing each one, element
by element.
As we did in researching causes of action, we
would then check the case law of the state whose
law will apply to our lawsuit, to fine-tune our list of
elements and be sure we are accurately reflecting
local law.
Step 5
Step 6
231
....
(B) no intent to cause serious harm or
death
....
(C) no likelihood of serious harm or death
....
(D) purpose to defend against bodily
harm
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
2.
....
(E) harm defended against is unprivileged
....
(F) reasonable belief that other was about
to intentionally inflict harm
4. Outrageous conduct causing mental distress
....
C. Against the police department
....
D. Against Shannons employer
....
II. General Defenses
A. Jurisdiction
....
We reiterate that the format, layout, and organization of the issues outline is a matter of individual
preference. The objective is to force a systematic
232
Include facts that tend to establish that element and also facts that tend to disprove
that element.
d. Following Step 6, list, under each fact that
you listed, any evidence that you can think of
that would tend to either prove or disprove
that fact. (In doing this and the preceding
step, keep in mind the difference between
facts and evidence. Reread the instructions
for Steps 5 and 6 if you are unsure.)
3. Prepare an issues outline limited to the issue
of self-defense. Assume that you represent
Shannon, and that Dr. Collins has sued Shannon for battery (remember, she shot him).
One affirmative defense to the tort of battery
is self-defense.
PRACTICE POINTERS
Organizing a Case File
At the same time you are beginning to prepare court materials, you also
need to begin organizing the case file that will contain all documents, notes,
court papers, and investigative materials for the case at hand. Having already
met with the client at this point, you will need to file your notes from this initial meeting as well as any telephone conversations you may have had with
the client.
Having been made aware at that initial interview of some of the potential
witnesses in this case, you can also create a witness directory that will list alphabetically all the witnesses of which you are currently aware, their telephone numbers and addresses, and any other identifying information. This directory will assist you in the future to schedule interviews and depositions
and to issue subpoenas.
In your computer you will need to prepare a case directory (often entitled
by the clients surname). At the beginning of this directory you will put your
to do list, which will contain tasks that you jotted down during and after
your initial interview with the client. The case directory should also contain
an inventory document called the original documents list. This list should
include the documents the client brought to the first meeting and should identify the nature of the document and the date it was received. Original documents should not, by the way, be hole-punched or altered in any way because
they may be used at trial.
Finally, the case directory should include a letter you have written to the
client, thanking her for choosing your firm and acknowledging that she has
provided the firm with documentation. Listing the documents provided
should be done only with the permission of your supervising attorney.
233
TECHNO TIP
The elements of a claim can be found in
many sources. If your state follows the
Restatements, such as Torts, Contracts,
etc., these treatises are a good place to
begin. For claims created by statute,
such as state security law issues, noncommon law torts, federal law violations, and the like, you can look on the
Internet for free access to the applicable
jurisdictions statutes. The United States
Code, for example, is accessible in
searchable form at http://law.house.
gov/uscsrch.htm. Another example of
free access to a states statutes is the
FORMS FILE
When you begin your first job as a legal assistant, you will find it
helpful to have documents that you can use as forms to remind you of
the proper format and content of the document you are asked to
prepare. You will, for example, want to have copies of various types of
complaints, motions, memoranda, subpoenas, contracts, wills, and so
on. You can easily prepare a forms file by keeping copies of the
documents you prepare or that are provided as samples in each class.
Purchase a three-hole notebook and a three-hole punch and insert a
sample of each document as you discuss it in class. You can use tabs to
organize these documents systematically for easy and logical
reference.
Therefore, at the end of each workshop, we will recommend
documents that you may want to include in your forms file that relate
to that particular workshop. In this chapter, for example, we suggest
you include a section that summarizes the causes of action in each
substantive area you study. As you learn about contract law, for
example, list the elements of a contract claim under common law, a
contract claim under the U.C.C., all of the defenses to contract
formation, and so on. You can begin by including the elements of the
basic causes of action in tort law, which are set forth in Figure W12,
in your forms notebook.
KEY TERMS
Claim
Theory of liability
Choosing a Court:
Jurisdiction, Venue,
and Choice of Law
INTRODUCTION: WHY THE CHOICE
OF FORUM IS IMPORTANT
The United States has many hundreds of courts:
federal courts, county courts, city courts, justice of
the peace courts, magistrate courts, tax courts,
bankruptcy courts, probate courts, equity courts,
admiralty courtsthe list goes on and on. We refer
to the particular court in which a given lawsuit is
filed as the forum for that lawsuit.
How do you decide which, out of all of these
hundreds of courts, is the right one in which to
prosecute your lawsuit? We can use two considerations to narrow the list.
First, we must choose a court that has legal authority to hear our casethe court must have jurisdiction, and venue rules must be satisfied. We
must also consider whether there are factors present that may lead the court itself to decide that the
case should be brought elsewhere. For instance,
even if the court we choose has jurisdiction, the
judge may have the power to transfer or dismiss a
case if the forum is deemed inconvenient. We discuss these concepts in detail in this workshop.
Second, out of all the courts in which we could
file, we would prefer to choose the one in which we
are most likely to win our case. All courts are not created equal, nor do all courts apply the same laws.
Procedural rules differ greatly from one court to another, and substantive law varies considerably from
one state to another. Delay is a major consideration.
In some courts a lawsuit can be prosecuted to trial
and judgment in as little as a year or two, while in
others it may routinely take five years or more. And,
as graphically demonstrated by certain recent cases
(Rodney King, O. J. Simpson), choice of geographical location implies a choice of jury demographics,
which can be enough, by itself, to determine who
wins or loses.
Choosing a Court:
Step-by-Step Instructions
Choice of forum refers to the process by which we
decide which court will hear our case. Who gets to
make this important decision? The initial choice belongs to the plaintiff, because the plaintiff decides in
WORKSHOP
which court to file the complaint. However, in certain circumstances, a defendant who disagrees with
the plaintiffs choice can get the case transferred to
a different court or dismissed in a way that forces
the plaintiff to refile in a different court. And, if the
defendant knows that a dispute is likely to lead to a
lawsuit, the defendant can sometimes seize the initiative and file first (as a plaintiff, of course, naming
the natural plaintiff as a defendant), thereby cementing a more defense-friendly choice of forum.
Therefore, the defendants as well as the plaintiffs should analyze the forum choices. A further
motivation for the defendants is the potential for
finding additional defenses (jurisdictional defenses,
for example).
As with other potentially complex decisions in
the course of a lawsuit, the odds favor those who
apply a systematic approach to ensure that
promising alternatives are not overlooked. If you
always jump up and file in the obvious forum (usually, the local county or superior court), at least
some of the time you will be missing the chance to
file in some other court in which your case might
be more easily won.
Hence, we proceed in our usual step-by-step
fashion (see Figure W21).
Step 1
236
SIDEBAR
The Importance
of Being Connected
A court will ordinarily hear a case if and only if
(1) it has jurisdiction of the subject matter, (2) it
has jurisdiction of the person of each defendant,
and (3) venue is proper. Rules of jurisdiction and
venue can be quite technical and complex, but they
will be easier to understand if we realize that they
are all designed to achieve one main purpose: to
channel lawsuits into the courts that can most conveniently hear them.
Courts are usually reluctant to hear cases that
have no connection to the locality where the court
sits. This is not surprising when you consider that it
is the taxpayers of that locality who are paying for
the court.
Cases Where the Choice Is Not As Easy: Listing the PossibilitiesFor the cases that we cannot weed out as obvious, we proceed to list all the
possible forums. As usual, we do not attempt at this
stage to evaluate each alternative; our goal is
merely to list as many as we can.
What do we mean by a possible forum? First,
we do not bother to list courts whose jurisdiction is
limited in some way that clearly excludes us. For example, if we are filing a lawsuit for damages against
a private person, we do not need to list the Tax
Court as a possibility. Second, we limit ourselves to
237
What does it mean to be connected to the locality? The precise answer depends on the jurisdictional rules, but here is a useful rule of thumb: At a
minimum, at least one of the parties must be a resident of the forum county, or, failing that, part of
the events that gave rise to the dispute itself must
have happened in the forum county. Certainly, it is
possible for cases to sneak under the jurisdictional
radar that are even less connected than our rule of
thumb would allow, but this does not happen often.
courts that are connected in some way to the dispute (see sidebar).
At a minimum, in a suit for damages, we should
include in our list:
1.
2.
3.
4.
5.
The federal district court for each federal district in which any defendant resides; and
6.
The federal district court for each federal district in which any significant part of the events
in dispute happened.
238
SIDEBAR
Jurisdiction: Original
vs. Appellate
A further level of complication in deciding
which court to choose is knowing in which level to
file. Suppose you have decided to file your lawsuit
in federal courtwhich one? District court? Court
of appeals? Supreme Court?
You probably know instinctively that you could
not start your lawsuit in the Court of Appeals or
Supreme Courtbut why not? Is there anything
preventing you from taking your case straight to
the Supreme Court?
Sorry, you can only originate a lawsuit in a
court that has original jurisdiction over it. For
most types of federal cases, the U.S. district court
has original jurisdiction and the Court of Appeals
and Supreme Court have only appellate jurisdictionthat is, they have the power to hear only appeals. (There are, however, a few classes of cases
certain disputes between state governments, for
exampleover which the U.S. Supreme Court has
original jurisdiction.)
Step 2
State CourtsState trial courtscounty or superior courtsare usually courts of general subject
matter jurisdiction. Originally, this meant that state
trial courts had the power to hear all types of cases,
so it was unnecessary to worry about subject matter
jurisdiction if you were filing your case in state court.
Increasingly, however, there are exceptions to the
generality of state court subject matter jurisdiction.
Some of the most common include the following:
Divorce cases, which must, in some but not
all localities, be filed in a specialty divorce or
family court;
Probate cases, which must, in some but not
all localities, be filed in probate court;
Small claims cases (i.e., cases in which the
amount in dispute is below a certain threshold amount of money, typically on the order
of a few thousand dollars), which may have
to be filed in a court designated to handle
small claims (which may be called a small
claims court or something else, depending on
the locality);
State tax cases, for which some states have
created specialty tax courts. (Choice of forum in federal tax cases is a complex issue
into which we will not delve.); and
Cases of exclusive federal jurisdiction, which
must be filed in federal district court. [Where
the cause of action comes from a federal
statute, the statute may provide that suit
must be brought in federal court. Normally,
state courts do have jurisdiction to hear federal causes of action, but Congress can, and
occasionally does, specify otherwise. An example: securities fraud cases under Rule
10(b)(5) of the Securities Exchange Commission can be brought only in federal court.]
239
But waitwhat about lawsuits in which you assert some causes of action based on federal statutes
and others based on state law? Does including a
state law cause of action in an otherwise federal
case deprive the federal court of subject matter jurisdiction?
In general, no. If there is at least one valid federal cause of action, the federal court is said to have
pendent jurisdiction over the appended state law
causes of action. In fact, it is commonplace for lawsuits in federal court to include both federal and
state causes of action. Pendent jurisdiction poses
one significant hazard, however: If your federal law
cause(s) of action were to be dismissed for some
reason (i.e., you lose a motion for summary judgment), then there would be no federal claim for the
state law causes of action to be appended to. Then
they would be dismissed for lack of subject matter
jurisdiction and your whole case would be gone.
Diversity jurisdiction: The other main category
of federal subject matter jurisdiction is diversity of
citizenship jurisdiction. The idea here is that the
federal courts should provide an impartial forum for
suits between residents of different states.
Presumably, state courts might tend to favor their
own residents over others. Whatever may be your
view of the logic of that rationale, 28 U.S.C. 1332
gives the federal district courts original jurisdiction
over all civil actions between citizens of different
states. Federal district courts are also given jurisdiction over certain civil actions involving citizens
of foreign countries.
What does it mean for an action to be between
citizens of different states? Citizenship as used here
means domicile, a clarification that does not necessarily help us much, since litigators are not shy to
engage in disputes over what domicile means. Usually, a persons domicile is the state in which the
person lives, although the correct legal definition is
somewhat more complicated (see sidebar). A corporation is considered to be a citizen of any state in
which it is incorporated and also of the state in
which its principal place of business is located.
Where a lawsuit is between one plaintiff and one
defendant, it is easy to decide whether the action is
between citizens of different states, as long as we
know what states the plaintiff and the defendant are
citizens of. What about more complex disputes in
which there may be a number of plaintiffs and defendants? The statute (28 U.S.C. 1332) does not furnish
a rule for this situation, so the federal courts have
supplied one: For there to be federal diversity jurisdiction, there must be complete diversity. That is,
there can be no defendant who is a resident of the
same state as any plaintiff. To see how this works in
a given case, try this: Make a plaintiffs list of all the
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SIDEBAR
Citizenship, Residence,
and Domicile
How do you tell which state you are a citizen
of? Perhaps you were not even aware that you are
a citizen of some stateyou thought you were a
citizen of the United States, or perhaps some other
country.
Legally, however, for many purposes, each
state of the United States is considered a separate
sovereign entity, each with its own government and
its own citizens.
Fortunately (thanks to the U.S. Constitution),
we do not have to go through customs or immigration when we move from one state to another.
You are a citizen of the state in which you have
your domicile, and you are free to choose any domicile you wish and change it as often as you wish.
Literally, domicile means home; legally, it means
any state in which you are physically present with
the intention to remain indefinitely. This means
that to choose a state as your domicile, you do
have to actually go there (physical presence); simply taking a vacation there is not enough (no intent
to remain indefinitely). For some people, such as
snowbirds who winter in the Sun Belt and spend
summers in one of the northern states, domicile can
be an ambiguous concept.
For purposes of procedural law, citizenship of a
state and domicile in a state are the same thing.
Residence is a less exact term; in this text, we will use
it to mean the same as domicile, but in some other
contexts (i.e., deciding whether you have to pay
out-of-state tuition) it may have other meanings.
states in which any plaintiff resides, and a defendants list of all the states in which any defendant resides. (Keep in mind that corporations can have
more than one state of residence.) Compare the two
lists; if there is any state that appears on both lists,
there can be no federal diversity jurisdiction.
There is one other requirement for diversity jurisdiction: the matter in controversy must exceed
the sum or value of $75,000. This is referred to as
the jurisdictional amount. It is determined by how
much the plaintiff asks for in the complaint, not by
how much is actually won. You do not get thrown
out of court for lack of jurisdiction if you ask for
$100,000 and the jury awards you only $49,999. But
federal judges have ways of getting even with the
plaintiffs who inflate their demands in order to
Step 3
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Personal jurisdiction over corporations present in the state: We have said that corporations
are citizens of the state of incorporation and the
state in which the corporations main office is located, for purposes of federal subject matter jurisdiction by diversity of citizenship. Personal
jurisdiction of corporations is a different issue:
Courts of a state (and federal courts sitting within
the state) can exercise personal jurisdiction over
corporations and other business entities if they are
present within the state. What does it mean to be
present? Maintaining a place of business in the
state is enough; merely engaging in advertising or
mail order business may not be; and in a close case
you will have to research the issue.
Many states require out-of-state corporations
to file papers with a state agency before doing business in the state, consenting (among other things)
to be subject to suit in the states courts. As a practical matter, therefore, when suing an out-of-state
corporation, your first thought should be to call the
state corporation commission (or whatever state
agency regulates corporations in the state in question) and find out whether the corporation has filed
papers qualifying to do business in the state.
242
SIDEBAR
Personal Jurisdiction Cases
To get a feel for the concept of minimum contacts, the following are brief summaries of two
leading federal cases:
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 100 S. Ct. 559 (1980)Involved a
suit in an Oklahoma court by New York plaintiffs
against a New York car distributor and a dealership that sold plaintiffs a car that burned up in Oklahoma injuring the plaintiffs. Neither of the defendants conducted any business in Oklahoma and
did not regularly sell to Oklahoma buyers. HELD:
Defendants had insufficient contacts with
Oklahoma to allow assertion of jurisdiction;
foreseeability of injury alone is an insufficient basis for asserting personal jurisdiction.
Burger King Corp. v. Rudzewicz, 471 U.S. 462,
105 S. Ct. 2174 (1985)Florida corporation sued
Michigan residents in federal court in Florida
(based on diversity) for breach of a franchise agreement. Defendants alleged breach occurred in
Michigan, not Florida, and Florida court did not
have jurisdiction over them. Floridas long-arm
statute provided that it had jurisdiction over any
breech of contract to be performed in Florida (the
franchisees payments were made to plaintiff in
Florida). HELD: Defendants had sufficient
contacts with Florida to allow assertion of
jurisdiction.
An example of a state courts analysis of its
long-arm statute is:
Hoskins v. California, 168 Ariz. 250, 812 P.2d
1068 (1990), review denied, 168 Ariz. 177, 812
P.2d 1034 (1991)California parolee killed an Arizona resident in Arizona. Plaintiff alleged that the
state of California failed to control the killer in California. Plaintiff also alleged that the state of California was doing business in Arizona for purposes
of general jurisdiction. HELD: Defendant state
of California had insufficient contacts with
Arizona to allow assertion of jurisdiction
(also discussed sovereignty issues).
243
of process is necessary to obtain personal jurisdiction, but not always sufficient. Without valid service
of process, the court will not have personal jurisdiction over the defendant who was not properly
served. However, the best service of process in the
world will not give the court jurisdiction over a defendant who is not a resident of the forum state, not
served within the forum state, and does not have
minimum contacts with the forum state. You may
find it helpful to think of personal jurisdiction as
centering on the question, Is it possible to sue this
defendant in this place? Then service of process
involves the question, Have we taken the right
steps to obtain personal jurisdiction in these circumstances?
defendants. What if the lawsuit concerns, for example, conflicting claims to ownership of a particular
item of property? If the court can obtain jurisdiction
over the item of property itself, then we may not
care whether there is jurisdiction of the persons of
the disputing claimants.
The intricacies of in rem and quasi-in rem jurisdiction are beyond the scope of this introductory
text. You may find it useful, however, to bear in
mind that a court may have the power to make orders concerning specific property under its jurisdiction, even when the people claiming the property are beyond its reach.
_________________________________________________
_________________________________________________
Step 4
244
Federal CourtVenue in federal court is governed by a federal statute, 28 U.S.C. 1391. (There
are a few extra venue options in certain special
cases, such as copyright and shareholder suits, but
in general, 28 U.S.C. 1391 is the place to look when
you have a federal venue question. Also, be warned
that Congress completely rewrote 28 U.S.C. 1391 in
1990, so court opinions from before 1990 may not
reflect current law.)
In state court, as we have seen, venue applies at
the county level. Venue rules tell us whether we can
file in a particular county. In federal court, venue applies at the district level. In many states, there is only
one federal district, so the district boundaries and
the state boundaries are the same. Populous states
have more than one districtNew York, California,
and Texas each have four, and a number of states
have three. In these states, federal venue rules may
limit us to a particular district within the state.
The federal venue statute, 28 U.S.C. 1391, gives
us three main venue choices. The first two are the
same in all federal cases; the details of the third
choice depend, for reasons understood by no one,
on whether the case is based on diversity jurisdiction or not.
Choice 1 is a district where any defendant resides, but there is a catch: We can use choice 1 only
if all the defendants reside in the same state. (Notice that venue depends on which state the defendants are residents of, not which state they are citizens of. Do the two terms mean the same thing? The
courts have not given a definitive answer.)
Choice 2 is a district in which a substantial
part of the events or omissions giving rise to the
claim occurred.
In cases in which the federal courts subject matter jurisdiction is based solely on diversity of citizenship, choice 3 is any district in which personal jurisdiction over all the defendants can be obtained. In
practice, this means that if we can get long-arm jurisdiction over all the defendants, venue will be proper.
In cases in which any basis for subject matter
jurisdiction besides diversity exists (i.e., if there is
any federal question involved in the case), then
choice 3 is any district in which any defendant may
be found, but there is another catch: In a nondi-
Step 5
Consider Defendants
Transfer Options
Forum non ConveniensSuppose the plaintiff decides to file in a state court that has jurisdiction and
in which venue is proper, but the place chosen has
little or no connection with the parties or the events
in dispute. (Why would the plaintiff do this? One
reason might be to make things expensive and difficult for the defendant. Remember, litigation is a
contest between adversaries, not a church social.)
In such cases the court has the power to tell
the plaintiff to go elsewhere. The defendant can
move to dismiss based on the doctrine of forum
non conveniens (Latin for the forum is not convenient). In practice, such motions are seldom
successful, because it is normally the plaintiffs
privilege to decide where to file. To get a case dismissed on forum non conveniens grounds, the defendant will have to convince the court that it would
be very burdensome to proceed at the plaintiffs
chosen location, because, for example, most of the
witnesses and evidence are located in some other
distant state. Even then, the case will probably stay
where the plaintiff filed it if the plaintiff can point to
some legitimate reason for the choice of forum.
Federal TransferIn federal court, the defendants chances of successfully arguing forum non
conveniens are somewhat better. By statute (28
U.S.C. 1404), a federal district court can transfer
the case to some other more appropriate district instead of dismissing it. In practice, federal judges
245
Step 6
Procedural LawEvery court applies its own procedural law. (Recall that procedural law gives us the
rules on how to conduct a lawsuit; substantive law
gives us the rules by which the court will measure
the defendants conduct and decide who wins or
loses. If you are unsure of the distinction between
substance and procedure, this would be a good
time to reread the sidebar Substance v. Procedure
in Chapter 1.)
In the federal courts, the source of procedural
law is the Federal Rules of Civil Procedure. Thus,
procedural law is theoretically uniform in all federal
district courts, whether the court is sitting in
Alaska or Washington, D.C. In practice, there are minor variations, in part due to local rules, in part because some of the discovery rules allow districts to
choose which of several options to follow, and in
part because the U.S. Court of Appeals is divided geographically into thirteen circuits, each of which
may interpret the rules differently.
In state courts, procedure is determined by
state law. In most states, the highest court issues
rules of procedure, which are often patterned after
the Federal Rules of Civil Procedure. In a few states,
the legislature prescribes court procedure by
statute. In all states, the interpretation of procedural rules is up to the appellate courts of the state.
As a practical matter, procedure under the federal rules is sufficiently uniform that most attorneys who have experience litigating in federal court
in one district feel perfectly comfortable litigating
in another district. Local rules usually allow out-ofstate attorneys to be admitted to practice before
any federal district court for the purpose of handling a single case (although a local attorney must
often be retained as local counsel to assist).
In state court, the situation is entirely different.
Although the general principles are the same
246
2.
3.
On any other issues, state law controls, as interpreted by the state appellate courts of the
state in which the district court sits.
Other Factors in Choosing a ForumIn deciding which of several possible forums offers the best
chance of winning, the law to be applied is one important consideration. A number of other factors
are important, which we mention only briefly.
Caseload and average time to trial: Crowded
dockets are a modern-day fact of life. In some forums, it may take an average of as much as five years
to get a case to trial; in others, it may be possible to
be in front of a jury telling your story in as little as a
year after filing the complaint. Long delays usually
favor the defendants, since the defendants ordinarily prefer to delay the possibility of having to pay the
plaintiff anything for as long as possible.
Who decides?Judges and jury demographics:
It goes without saying that the judge to whom a
lawsuit is assigned may have a very great influence on the outcome. Judges are people, with the
usual array of biases and prejudices. Intellectual
247
SIDEBAR
Swift, Erie, and the Rules of Decision Act
Historically, the idea of federal district courts deferring to state appellate courts in their interpretations of
state law was a matter of considerable controversy.
(This issue, known as the Erie doctrine after the leading
Supreme Court case, is a cherished icon among law professors and tends to be elaborated in bewildering detail
in procedure textbooks; we will try to restrain ourselves,
since the matter has now been settled law for some sixty
years and, quite frankly, none of us has seen a single
Erie issue in more than fifty combined years of litigation
practice.)
The controversy surrounded a 1789 act of Congress called the Rules of Decision Act. The act still exists, essentially unchanged from its 1789 incarnation.
You can find it at 28 U.S.C. 1652, and it says:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts
of the United States, in cases where they apply.
248
Choosing a Court:
Learning by Example
Now we will apply our step-by-step analysis to the
problem of deciding where Allen Porter might file
suit on Shannons behalf. To keep the example reasonably simple, we assume that she will sue only Dr.
Collins and the hotel.
Step 1
2.
3.
4.
5.
6.
8.
New Jersey federal and state courts (Park Hotels main office); and
Step 2
State trial courts have general subject matter jurisdiction, and garden-variety tort suits are unlikely to
involve any esoteric subject matter jurisdiction is-
Step 3
Step 4
Step 5
become familiar with new judges and procedural details (time consuming and a risk of making mistakes
arises). If Porter had concluded that the case should
be filed in Nevada, he might well have decided simply to refer the case to a Nevada attorney.
Why federal court? The choice between federal
and state court is a judgment call. In our hypo, we
can surmise that one of the out-of-state defendants
would have petitioned to remove to federal court,
had Shannon filed suit in Arizona state court. Better,
then, to save time and expense and file in federal
court in the first place.
Choosing a Court:
Learning by Doing
Your assignment for this workshop is to analyze the
jurisdictional and choice-of-forum issues from the
standpoint of Dr. Collins. Assume the following:
You are a paralegal in the law office of Roger
Yarborough, attorney for Dr. Arthur Collins. Assume
that Dr. Collins is a resident of your city, and that
Roger Yarborough practices in your city. Assume that
Park Hotels Group, Inc., operates a hotel in your city,
and assume that Shannon Martin often comes to your
city to make sales presentations. The remaining facts
are as described in the hypo.
After discussing the case with Allen Porter, Roger
Yarborough realizes that Porter is about to file suit on
Shannons behalf, naming Dr. Collins as one of the
defendants. Yarborough decides that he would prefer
to seize the initiative and file the suit himself. He
assigns you to prepare a memo listing the possible
places where Dr. Collins might file suit, and the issues
and problems that would arise in connection with
each choice.
Consider Defendants
Transfer Options
We have already seen that the federal courts of Arizona, Nevada, and Texas would have jurisdiction
over Shannons suit. Therefore, if Shannon files suit
in the state courts of any of those states, either Park
Hotels Group or Dr. Collins could petition to remove
the case to the federal court of the same state.
If Shannon files in Arizona federal court, there is
some possibility that Park Hotels Group could persuade the judge to order the case transferred to another district (probably Nevada). The argument
would be that because the important events occurred in Nevada, most of the witnesses are likely to
be there.
Step 6
249
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
250
4.
5.
PRACTICE POINTERS
Document Management
One of the crucial tasks a litigation legal assistant performs is document
management. This includes the production, organization, review, and analysis
of documents. Documents are extremely important in any case and are the
most common smoking gun around which many a legal drama revolves.
What makes legal assistants particularly valuable in reference to document
management is that attorneys generally dislike anything having to do with the
reading or organizing of documents.
How documents are managed can make or break a case. A paper trail is often times a more effective witness to a chain of events than is a human. The human memory can falter or fill in the blanks, but documents do not fabricate. Documents can either substantiate or discredit a witnesss story, thereby enhancing
a witnesss credibility or destroying it. Documents can also illustrate relationships between parties and establish a chronology of events. They can be used
to refresh a witnesss memory or to impeach a witness. They are extremely powerful tools in the hands of an astute litigator and the wise legal assistant learns
how to masterfully manage them.
Therefore, you must carefully review, analyze, and organize every document you receive. Merely skimming over documents will not afford you the
opportunity to pick up the kind of detail that attorneys are looking for in proving their cases. You must read them in the context of the primary legal questions raised in the case and, relying on your logic and understanding of the
law, seek those facts that are especially pertinent to proving your clients position and discrediting your opponent.
You must then organize each document in such a manner that it is easily
accessible by you and anyone else who seeks it. Attorneys are notorious for
popping their heads in the door and demanding that you immediately retrieve
a document they need. You must be so familiar with each document and the
overall organization of all of the documents that you can literally lay your
hand on whatever you need within minutes.
Furthermore, as the custodian of all original documents, you must ensure
that documents are never misfiled or lost. No matter who has access to the
files, it is the responsibility of the legal assistant to make sure all documents
are correctly filed.
251
TECHNO TIP
One way of finding out about your
judge in the federal district court is to
review his opinions. Most rulings by district court judges are not published but
are memorandum opinions that cannot
be cited as precedent. They can, however, be cited to establish the law of the
case, res judicata or collateral estoppel.
Westlaw does maintain a database on
some of the memorandum opinions.
You may want to go to the local district
court to see if an index of each judges
cases is maintained to see if he has had
prior, similar cases to yours.
Most state trial courts do not have
such an index. The states trial court
opinions are not published (except as
they may be quoted from in an appellate decision). You can, however, search
the reported case database to find out
from which cases a particular judge was
appealed. From a cursory review of
these cases you can determine the
judges appellate record (percentage of
reversals v. those affirmed) and hopefully get a glimpse of her judicial philosophy. For example, does the judge
grant motions for summary judgment
on a regular basis? If so, is she affirmed
on appeal more often than not? Is the
judge inclined to grant a new trial, enter judgment n.o.v., or direct a verdict?
Today many, if not most, state appellate courts have their own web sites
and post their decisions as soon as they
are filed. Although the database is usually quite limited (only the current
years decisions to date or the past few
years), many are searchableand all
are free. You may also want to contact
the person in charge of the courts web
site. By asking just a few questions you
may find out what new bells and whistles may soon be available. You might
also be able to find a central web site
with links to all the other states or other
useful databases.
FORMS FILE
For your forms notebook we suggest you prepare a list of all the jurisdictional elements you need to consider when deciding in which
court to sue. Although you think you will never forget this information
after you have been tested over it, you will find that this is precisely the
kind of information that fades away after you have studied it. Although
jurisdictional issues are typically dealt with by attorneys, you will benefit from having a quick reference you can use to refresh your memory.
KEY TERMS
Appellate jurisdiction
Choice of forum
Diversity of citizenship
jurisdiction
Domicile
Federal question jurisdiction
Forum non conveniens
General subject matter
jurisdiction
Original jurisdiction
Pendent jurisdiction
Venue
Working Up a Case
for Suit
WORKSHOP
254
Case Workup:
Step-by-Step Instructions
Figure W31 shows the steps we will cover in our
discussion of case workups, which is broken
down into three sections: (1) client interviewing,
(2) investigation, and (3) settlement demands.
255
SIDEBAR
An Interview Checklist
Although an interview checklist is a flexible document, certain basic information is almost always necessary. You may want to fashion a separate checklist
for each type of case your firm accepts, such as personal injury, other torts, contracts, securities, and
bankruptcy. An example of a basic personal injury
checklist follows. Remember that you do not want to
appear to be interrogating your client. If possible, you
may want to send her home with a copy of your firms
standard personal injury interrogatories to be answered at her leisure. If your court has adopted a set
of standard interrogatories, they might be used, either
separately or together, with your firms. If the answers
are not relevant or necessary to your representation of
the client, do not ask them.
Name:
Address:
Spouse:
Children:
Employer:
Title:
Other Employment Information:
Notedo not ask for salary or other income information unless needed. If the case does not warrant
a lost wage claim, you have no reason to ask a persons income.
Social Security No.:
Prior Marriages:
Noteonly if relevant to the case.
Prior Litigation Experiences:
Date, Time, Place of Incident:
Detailed Narrative of Incident:
Find out who the potential defendants are. Let the
client ramble as much as she will. Afterwards direct
her to areas that may have been overlooked, such as,
witnesses, speeds, other vehicles involved, passengers,
lighting conditions, colors, traffic control devices, etc.
Investigation:
Was incident investigated? If so, by whom? Was a
report made? If so, does the client have a copy?
Medical Information:
Paramedics at scene? Was client treated at the
scene? Was an ambulance called? Was client transported? Which hospital? Emergency room care?
Postaccident treatment; with family doctor or specialist(s)? You need to get the names and addresses of all
treating health care providers (such as doctors and
chiropractors). Obtain all funeral expenses if a death
occurred.
Current Health Status:
Prior Medical Treatment:
Notewe would be ashamed to have to admit
how many times prior treatment to a client, often for
similar symptoms, was discovered by the opposing
side from a review of our clients medical records. Be
very, very thorough in eliciting the clients prior medical history. Ask specific questions about possible prior
treatment for similar injuries or symptoms to those
claimed to have been caused by the incident.
Medical Insurance Coverage:
Does the client have medical coverage? Are her
medical bills from the incident being billed to the carrier? Who is the carrier and what type of plan is it?
Notesome medical plans have the right to seek reimbursement for any medical payments made due to
the act of a third party; most employer-provided plans
are ERISA plans that allow for reimbursement and are
governed by federal, not state, law. If there is no insurance, or insurance will pay for the incident or the
health care professional, did the client give a lien to
the provider to insure payment? If so, make sure you
get a copy of the lien!
Automobile Insurance Coverage:
Does the client have insurance to cover any property damage that occurred (collision)? Is uninsured
and underinsured motorist coverage available? Did
she carry any medical payments coverage? Is there
any bells and whistles coverage that might be applicable, such as accidental death and dismemberment or disability coverage.
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SIDEBAR
An Interview Checklist continued
Other Insurance Coverage:
Is there nonautomobile disability coverage, accidental death or dismemberment coverage, credit card
coverage, mortgage coverage, and the like? Many
people do not know what insurance coverage is provided and/or when it is applicable. You will be doing
your client a disservice by not thoroughly checking for
any source of compensation that might be due them,
even though your firm will not share in the proceeds!
Step 1
Determine Who
the Adverse Parties Are
Post-Interview Follow-Up:
After you have taken the initial information you
will need to obtain the medical, police, and insurance
records of the client. Review them carefully with your
outline. Discrepancies almost always can be found.
Bring the client back to the office to review the materials with you and explain any new issues you have
found. If you sent the client interrogatories, review
them with her as well.
illustrate this: Suppose you are assigned to interview a new client, Joe Jogger, who was injured when
a delivery truck hit him while he was crossing the
street. You introduce yourself, and Joe immediately
starts telling you all about what happened; being
polite, you do not interrupt. Finally, Joe runs down
a bit, and you ask him who the truck belonged to.
Bad news: Joe was run over by Steves Trucking
Company, which happens to be your senior partners oldest and most lucrative client.
Obviously, you cannot accept the case, because
your senior partner is not about to sue his best
client. But now you have a worse problem: You have
obtained confidential information from Joe, which
means that your firm cannot ethically represent
Steves Trucking Company in this case, either. Your
senior partner will have to refer Steve to some other
lawyer, at least for this casean outcome not likely
to improve the career of the paralegal who caused it.
A further problem is that not all fact situations
are as simple as the Joe vs. Steve hypo. Prospective
clients usually know, or think they know, whom
they want to sue. But often, after hearing the facts
and evaluating the clients position, you will find
that the best claim is against someone whom the
client never thought of suing. Therefore, when you
ask the prospective client who the adverse parties
are, cast your net wide, and try to identify every
person, every corporation or other entity, and
every insurance company that may be involved in
the dispute, however peripherally. And do this before you get into the facts of the dispute itself.
Once you have the names of all the potentially
adverse parties, how do you find out whether your
firm represents any of them? Most law firms maintain a conflict database of some kind. In a very small
office this may consist of nothing more than a card
file of all of the firms clients. In larger firms, the conflict database will be computerized, often under the
Step 2
Step 3
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258
SIDEBAR
The Value of a Claim
The usual rule of thumb for assessing the value
of a claim works like this: First, estimate the probable verdict range, that is, the maximum and minimum amounts that a jury would likely award if the
decision is in favor of plaintiff. Then, average the
two. Next, estimate what percentage of the time
you would expect plaintiff to win, based on everything you know about the strength of both parties
cases. That is, if the case were tried a hundred times
before a hundred different juries, how many of those
hundred times would you expect plaintiff to win? Finally, multiply the estimated average verdict by the
percentage probability of plaintiff winning; the result is an estimate of the value of plaintiffs claim.
An example may help make the concept clearer.
Suppose Sam Sideswipe is driving down Main Street
and decides to change lanes. Sam does not notice
Kathy Klutz driving obliviously along in his blind
spot. Kathy might have been able to avoid a collision had she reacted quickly, but she was busy
changing the CD in her CD player, so she did not notice Sam changing lanes until it was too late. Kathy
sues Sam for the damage to her car, her medical
bills, and her lost time from work. Approximately
how much is Kathys claim worth?
There are two variables: (1) How much is Kathy
likely to win, if she wins? (2) How likely is she to
win? Neither question can be answered with any
scientific exactitude, and both require judgments of
the goodness of Kathys case, based on experience.
You evaluate Kathys damages, and estimate that if
she wins, the award should be between $8,000 and
$12,000an average of $10,000. Because a jury
might find that the accident was mostly Kathys
fault, this is not a slam dunk (few cases are); you
estimate that if the case were tried ten times, Kathy
would win six out of the ten, or 60 percent. The approximate value of the claim is $10,000 times 60
percent, which is equal to $6,000.
Step 4
Determine When
the Dispute Arose
259
SIDEBAR
Fun with Statutes of Limitations
Statutes of limitations are statutes that place a
time limit on the right to file a lawsuit. Different causes
of action may have different limitations periods. For
example, many states require suit to be filed on a
cause of action for negligence within two years after
the cause of action accrues. On a cause of action for,
say, breach of contract, the limitations period is often
longerperhaps as much as six years. When a cause
of action can no longer be sued on because the limitations period has run out, we say that the cause of action is time-barred.
When does a cause of action accrue? Courts often
say that a cause of action accrues on the date by
which all of the elements of the cause of action have
happened. Often, the date will be obviousin an automobile negligence case, for example, all four elements of the cause of action for negligence (duty,
breach of duty, causation, and damages) are established at the moment of impact.
You are probably wondering how something as
simple as a time limit can be made complicated. One
reason is that statute of limitations law is riddled with
exceptions. For example, the statutes of limitations
260
SIDEBAR
Other Time Issues to Watch For
agency. Suit can be filed only after the government agency has had a chance to try to
resolve the problem. Often, the government
agency has strict time limits; as a practical
matter, if these are not complied with, suit
can never be filed, since the prerequisite
agency actionwill never occur. The lesson
here is that specialty claims involving disputes that fall within the purview of government agencies are not for amateurs.
2.
Step 5
3.
Arbitration. Certain types of contracts provide that any dispute under the contract must
be arbitrated, rather than taken to court.
Usually, such contracts specify time limits for
commencing arbitration.
To the extent that your client has brought pertinent documents, make copies of them now. To the
extent that your client has pertinent documents but
has not brought them, make definite arrangements
now to obtain copies. Experience teaches that the
best time to get a copy of a document is at the first
opportunity.
Sooner or later, it will be necessary to prepare a
complete list of the names, addresses, and telephone numbers of every potential witness in the
casethat is, every person having any knowledge
or information about any of the facts in dispute.
This includes experts such as treating physicians
and police investigating officers. Start the list now,
fill in as much as your client knows, and start making plans to obtain the rest. We recommend that
you keep an ongoing witness list in the file, updating it whenever you obtain new information. Such a
list will be useful when you respond to your opponents discovery requests, and it will also help you
plan your own evidence-gathering work.
Step 6
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Step 7
Step 8
Properly Document
the Outcome
INVESTIGATION STEPS
Evidence in a lawsuit is like pieces of a jigsaw puzzle which must be put together, piece by piece, into
262
Step 9
As we will see in Workshop 5, we cannot draft a complaint or answer without knowing at least the basic
elements of the causes of action that we will be alleging. Rule 11 requires us to have a reasonable basis for whatever legal theories we assert. Perhaps a
more compelling motivation is that if we allege a
cause of action incorrectly, our opponent will try to
use our mistake to get the claim dismissed.In Workshop 1, we outlined a basic approach for researching the causes of action and defenses in a case. To
the extent possible, this task should be completed
before suit is filed.
Step 10
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SIDEBAR
Some Ethical Traps to Watch For
One type of involved witness requires special mention: employees of an opposing party. If we are suing a
company, and we know the company has a lawyer, can
we contact employees of the company and ask them
questions about the matters in dispute? This common
situation raises potentially complex questions of ethics
and of attorneyclient privilege, which we will consider
in detail in Workshop 19 (Ethics in Litigation). For now,
the lesson you should take away is this: Do not contact
an opposing party, or employees of an opposing party,
without checking with your supervising attorney first.
Another issue that has great potential to get opponents into a high state of excitement is that of tape
recording statements without the witnesss knowl-
edge. This is another minefield into which no paralegal should set foot without advance permission. If you
are not a participant in a conversation, it is almost
certainly illegal for you to record it. Even if you are
recording your own telephone conversation with
someone else (a witness, for example) you may be
committing a crime if the person you are recording
does not know you are doing it; state laws vary on this
issue. Suppose you secretly record a face-to-face interview with a witness. In most states, this would not be
a crime, but issues of legal ethics can arise, and the
witness is unlikely to be pleased if she finds out. Bottom line: Get your supervising attorneys approval before you get out your tape recorder.
SIDEBAR
Witness Statements
A witness statement is a record of what a witness
has said about the facts in dispute. In civil litigation, a
statement usually means an informal interview at
which only the witness and the interviewer are present.
Ideally, we want two things from a statement:
(1) We would like the contentwhat the witness has
saidto be helpful to our case; and (2) we want to
preserve that content in a way that allows us to use it
later in court, if necessary. Getting the right content is
a matter of interviewing skills, understanding of the issues, and preparation, and it depends on the facts of
each case. We will have more to say about the art of
knowing what to ask in Workshop 13 on Working
with Witnesses.
One way of preserving a witnesss testimony is to
take a deposition. Why not do that? There may be several reasons. A deposition is a more formal (and expensive) proceeding and the opposing lawyer would
have a right to be present (see Rule 30, FRCP). Another
factor that you may find significant is that in a deposition, a lawyer must conduct the questioning; paralegals can take witness statements.
There are many ways to accomplish the goal of
preserving what the witness has said, including simply
taking notes. Where a witness statement becomes really useful, however, is when a witness tries to change
his story later, perhaps after some coaching by your
opponent. Then you would like to be able to use the
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assembling the documents that you know must exist (based on your client interview or based on your
experience in similar cases).
Step 11
Once suit is filed, your freedom to contact potentially unfriendly witnesses will be much reduced.
Obviously, we would not want opposing lawyers
talking to our clients behind our back, and the
rules of ethics restrict us from contacting a party
or witness whom we know is represented by another lawyer. As a practical matter, once we sue
someone, their first act will be to hire a lawyer;
from then on, anything we get from them will be
carefully sanitized.
What about nonparty witnessespeople whom
we are not suing, but who have information about
the dispute? In practice, we will find that there are
two kinds: (1) the impartial witness, someone who is
not a part of the dispute and does not side with either party; and (2) the involved witnessperhaps a
friend or business associate of one of the parties
someone who can be expected to take sides.
Whether we represent the plaintiff or the defendant,
it is to our advantage to interview and take statements from as many of the impartial witnesses as we
can find, as early as possible.
It can matter a great deal which side gets to
these witnesses first. Ideally, the first side to talk to
a witness will obtain (with the witnesss permission) a tape-recorded or signed statement, locking
the witness into one version of the facts for all time.
A single answer to a single question can, at times,
make or break a lawsuit, and a clever questioner
can find many ways to cast questions so that a simple yes or no answer will carry vast implications
that the witness may not have intended.
It goes without saying that we will contact all of
the involved witnesses who sympathize with our
side, find out what they have to say, and caution
them of the dangers of speaking to our opponent
without the benefit of our presence!
plaintiff and settle the case. Therefore, a pre-suit settlement proposal is usually worth considering.
The time-honored way of getting negotiations
going is for plaintiffs attorney to send a demand letter to defendant (or defendants insurance company
or lawyer). In certain areas of practiceaccident litigation, for examplemany plaintiffs lawyers send
pre-suit demand letters routinely in every case. Because the preparation of settlement demands is a
job often assigned to paralegals, we include it as a
part of this workshop.
Whether to make a pre-suit settlement demand
in a given case is a matter of strategy. Some plaintiffs lawyers, even in garden-variety accident
cases, make it a practice always to file suit first, believing that this will show determination and cause
their demands to be taken seriously. There are also
some opponents, usually large corporations or insurance companies, that deliberately cultivate a
reputation of being tough litigants and of fighting
every claim to the bitter end. In disputes involving
them, settlement overtures may be futile, a waste
of time and money.
Steps 12 through 16 describe the process of
preparing a pre-suit settlement demand letter.
Step 12
Step 13
SIDEBAR
Releases
Estimate Probability
of Prevailing
Step 15
Calculate Damages
Your opponent will use your settlement demand letter to try to decide how much the claim is worth. (See
Step 3 earlier and the sidebar on the value of a claim.)
Information about plaintiffs damages is therefore
crucial. Your demand letter should lay out the damages elements of your claim in as much detail as possible. No defendant is going to pay out large sums of
money without verifying plaintiffs damages, so it is
best to enclose with your letter copies of whatever
documents you will be relying on to prove damages.
Bills, receipts, physicians reports, repair estimates,
employers verification of time lost from workthe
particulars depend on the case, but in general, the
greater the amount of loss that you can document,
the larger will be the settlement value of the case.
Step 16
Step 14
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The demand letter concludes by demanding a specific sum of money in return for a release of plaintiffs
claims. You are making an offera communication
266
Case Workup:
Learning by Example
Now we will consider how these principles might be
applied in Shannons hypothetical case against Banbury Park Hotel.
INVESTIGATION STEPS
A good first step in investigating a claim like Shannons is to take advantage of the investigation already done by the police. Telephoning the detective, as Porter did, would be worth a try in an
unusual case like this one; in a routine accident
case, it would be more common to obtain the written police report before attempting to speak to the
investigating officer.
Chucks trip to Las Vegas to scout out the scene
raises several knotty ethical issues, which we can
assume Porter discussed thoroughly with Chuck
before giving his approval. Was it proper, for example, for Chuck to conduct an investigation on
premises owned by an adverse party without the
knowledge of Park Hotels or its attorneys? We will
revisit this and other issues in Workshop 19, Ethics
in Litigation.
Our narrative did not dwell on all of the investigative work which, in a real lawsuit, would be going on behind the scenes. Immediately after
Porter accepted the case, letters would be sent requesting any and all documents that might bear
on the claims. Chuck would likely be directed to
call the Las Vegas Police Department to find out
what reports are available and how to obtain
them; he would then send out the necessary request and follow up to be sure the reports arrived.
The police reports would reveal the names and
addresses of any witnesses interviewed by the police; part of Chucks follow-up might consist of
contacting these witnesses and taking statements
from them.
Chuck might also be asked to assemble the documentation for the damages aspects of the claim. He
would begin by requesting complete copies of medical records from each medical provider (physicians,
surgeons, hospitals) involved in Shannons treatment.
Later, when Shannons condition has become stable,
he would request updates of the medical records, and
perhaps also order narrative reports from one or
more of Shannons physicians (see sidebar).
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SIDEBAR
Narrative Reports
A high percentage of all lawsuits involve injuries
of some kind. How can you place a dollar value on an
injury? You could start by adding up the medical bills,
but most people would agree that merely paying
someones medical bills would not be enough to compensate them for the pain and impairment of a serious
injury. In practice, the way in which injuries are valued
is that the jurors listen to all pertinent facts, deliberate, and vote on a number.
Because jury decisions are not arrived at in any
scientific way, there is no formula to use to compute
the value of an injury. The best you can do is try to
assemble the same facts that the jurors would be
asked to consider and, guided by experience, make
some judgment about what a typical jury would
likely award. (There are resources such as Jury Verdict
Research that compile data about the amounts of
jury verdicts in various types of cases; consult your
law library.)
In addition to the actual medical costs as reflected
by the bills, the jury in an injury case typically considers such factors as the extent to which the injury affects
plaintiffs ability to carry out normal activities; the pain
suffered; the permanency of the impairment, if any;
and the possible need for future medical treatment.
SIDEBAR
Obtaining a Clients Records
One of the routine tasks in most lawsuits is to obtain records pertaining to our own clientmedical
records, employment records, and any other records
that pertain to the dispute. Usually, our client has a
right to obtain copies of these records, so no subpoena
will be necessary. (Recall that a subpoena duces tecum
is a court order requiring a witness to appear and produce documents.)
Begin with a telephone call to the company, doctors office, hospitalwhatever organization we believe is maintaining the records we want. Many of the
organizations from which you will be requesting
records are large, so you should get the name of the
individual to whom the record request should be sent;
otherwise, your request letter may spend weeks being
shuffled from one department to another. At the same
time, you need to find out how to handle copying
charges. Different organizations have different poli-
268
SIDEBAR
Obtaining a Clients Records continued
Send a letter, addressed to the individual in
charge of the records you wish to obtain. In the letter,
request the records that you want, designating them
as broadly as possibleat this stage, you want everything, and you do not want a records clerk making
judgments about which documents are important.
You should enclose a signed release form and confirm
whatever payment arrangement is necessary. You then
calendar the request a reasonable distance into the future, so that you will be reminded to follow up if you
do not receive a prompt response.
Is your task completed once you receive the copies?
No, not until you verify that the copies are complete.
Case Workup:
Learning by Doing
Your assignment for this workshop is to perform
part of the pre-suit workup for Dr. Collinss claim
against Shannon.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
Find out how to order a police investigative report from the police department of your locality. Find out what forms are needed, if any; what
fees will be charged and how they are to be
paid; and where the request is to be sent.
2.
Assume that Dr. Collins was treated for his injuries at a hospital in your locality (choose one).
Prepare a request letter for medical records.
3.
269
Allen Porter
4.
5.
270
PRACTICE POINTERS
Interviewing
Before an interview, set up the room and chairs so as to make the client
feel as comfortable as possible. Avoid furniture configurations that intimidate
or otherwise inhibit open communication (e.g., putting the client in a smallbacked chair while you sit behind a desk in a high-backed chair). Offer refreshments and engage in friendly small talk to minimize the clients uneasiness. Inform the client up front that you are a legal assistant, not an attorney,
and then assure her that all communications to you, as a member of the firm,
are confidential.
Remembering that this initial contact not only provides you with a first
impression of the client, but also provides the client with a first impression of
you and the firm. Be conscious of your verbal and nonverbal language. By the
same token, be aware of your reactions to the client and take notes regarding
your impressions of her story, her body language, how she responds to questions, her apparent veracity, and her potential strengths and weaknesses as a
witness. Trust your instincts; they are often accurate.
If you are conducting the interview rather than observing, allow the client
to give a free-flowing narrative at the beginning of the interview and then follow up with directed questions to fill in any gaps or clarify any points of confusion. Although you may want to use prepared questions to structure the interview (to ensure you cover all the salient points), do not become so
dependent on your notes that you fail to hear the client. Listen carefully to
what is said and be flexible enough to allow the client to take you into areas
you might not have thought to explore. Assert enough control over the course
of the interview, however, to prevent the client from digressing or becoming
inordinately absorbed in unnecessarily detailed descriptions. Be an empathic
listenersensitive to the emotional needs and psychological defenses of the
client without getting caught up in those same emotions and defenses.
Ask for background information as well as details about the issue to be litigated. In a torts case, for example, find out about the plaintiffs medical history, her insurance coverage, her employment status, and personal information, such as date of birth, Social Security number, address, telephone
number, names and relationships of family members, and so on. Gather up
enough details about the incident or issue in question that you can clearly picture the events in your mind. Take note of inconsistent statements and weaknesses in the case; reference them in your notes as issues/facts requiring further investigation. At the end of this interview you should have enough
information to begin the investigatory process and to be able to respond, if
asked, about whether you think the firm should take the case.
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TECHNO TIP
Many states have private companies that keep track of jury verdicts, arbitration results, and settlements. The
data compiled may be local, regional,
or statewide. In using this valuable research source care should be taken to
use case results from your locality. A
rural areas evaluation of damages, and
even liability, may differ substantially
from an urban area.
Many of these resources also keep
track of attorneys, judges, and expert
witnesses. For the expert witness you
can find out which cases they testified in
and whether their side won or not.
Many of these companies may also be
able to provide you with a compendium
of cases where the injuries were similar,
for example, loss of an eye, visible scarring, torn rotor cuff, and so on. If an expert is needed, it is prudent to talk to
the attorney that used the expert in another case to get his opinion on the experts abilities and credibility. One Internet site to start with is the National
Association of State Jury Verdict Publishers at www.juryverdicts.com. In addition to giving you information on each
FORMS FILE
Include samples of the following in your forms notebook:
Interview checklist;
Settlement demand letter;
Letter requesting medical or employment records; and
Record release forms.
KEY TERMS
Conditional delivery
Disability
Hold harmless
Indemnify
Limitations period
Narrative report
Offer
Probable verdict range
Record release form
Release
Statement
Statute of limitations
Time-barred
Court Papers
INTRODUCTION: CREATING
A COURT PAPER THAT COMPLIES
WITH FORMAT RULES
Most of the work that goes on in the months or years
before a suit is ready for trial involves papers. Pleadings, motions, discovery requests, discovery responses, noticesall are normally in written form.
Litigators need some way to keep track of these papers so that there can be no dispute about what has
or has not happened in the lawsuit. This means of
tracking documents is called the court file.
The court file is the official record of the case
kept by the clerk of the court. The clerk keeps a separate file for each case, and every important event
in the lawsuit must be recorded in the file. Judges
are responsible for hundreds of lawsuits at a time,
so they cannot possibly reconstruct the details of
individual cases by relying on memory alone. Cases
are transferred from one judge to another. Appellate
courts are asked to review what was done at the trial
level. The court file is the single permanent and
complete record of everything that has happened in
the case, the record that all participants rely on.
From the judges standpoint, the court file is the
casethe judge will usually refuse to consider any
papers that are not part of the court file.
You might think of a court paper as being made
up of two things: (1) the body, that is, the actual contents of the paper, where you list your allegations or
present your argument, and (2) the formal part
caption, signatures, mailing certificate, etc.which
takes care of the various clerical needs. Formal, in
this context, means pertaining to matters of form
and includes such things as type of paper, margins,
type size, and arrangement of parts.
Beginning with Workshop 5 on complaint drafting, much of the remainder of this text is devoted to
learning how to prepare the body of various kinds of
court papers. But because the formal part is essentially the same for all court papers, it will be easier
if we learn to construct the formal part first, and prepare a form for doing so. Then, whenever we need to
prepare a court paper, all we have to do is write the
WORKSHOP
body and plug it into the form. This is what is typically done in a law office.
When we present a court paper for filing, the
clerk of the court will examine it to ensure that the
paper complies with the formal requirements of
the local rules. If we have not followed the rules,
the clerk is likely to refuse the paper. The clerk
does not care what you write in the body of a court
paperthe clerk is not concerned with content.
However, court clerks often exhibit near zero tolerance for deviations from correct form.1 Urban
court clerks often handle millions of pages of paper
each year, and seemingly minor mistakes may be
enough to bring the clerks automated processing
to a standstill or, worse, cause your paper to disappear forever into the wrong file.
There is another motivation: We want our work
to convey an impression of professionalism. Like it
or not, other people, including opponents and
judges, will form opinions about us and our case
based on the appearance that we present. A court
paper that does not comply with the formal rules, as
well as local customs, sends a message that the preparer is an amateur, someone who need not be taken
as a serious threat.
Figure W41 lists the steps we will cover for creating the formal part of a court paper.
We recognize that FRCP, Rule 5(e), states that The clerk shall not refuse to accept for filing any paper presented for
that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices. Rule or no rule, the authors have had filings rejected by federal court clerks for minor format infractions, and
the clerks of some state courts (New York City comes to mind) are notorious for refusing improperly formatted filings.
274
Step 1
4.
5.
6.
2.
275
Step 2
Compose a Caption
Name, address and telephone number of the attorney filing the paper. In courts that require this information to be included in the caption (not all
do), the rules typically require it to be placed at
the extreme upper left. In some courts, the attorneys name and address appear below the
signature line. Many law firms use preprinted
(or laser-printed) paper in which the firms
name and address appears at the side, in the left
margin. Your instructor will inform you of the
preferred practice in your locality. You should
identify which party you are representing.
2.
3.
4.
5.
6.
Other information. Local rules in some jurisdictions may require inclusion of certain other information in the caption, usually immediately
below the title. Examples include the name of the
assigned judge, the type of case, whether or not
oral argument is requested, and hearing date.
Step 3
Introductory Paragraph
Below the caption, the content portion of the document begins. As you would expect, the specifics
vary depending on what kind of court paper you are
writing. Several of the workshops that follow offer
276
detailed instructions on how to construct the common pleadings, motions, and discovery documents.
In this workshop, we limit ourselves to mentioning
a few guiding principles that apply to all or most
court papers.
If you browse through the court file of a lawsuit
(an activity we highly recommend), you will find
that a great many of the court papers look superficially alike. It is customary to begin motions and
many other kinds of court papers with an introductory paragraph or preamble telling the court who is
filing the paper, what its purpose is, and what the
main legal authority is supporting it.
Here is an example preamble of a typical court
paper:
Plaintiffs respectfully move for summary
judgment pursuant to Rule 56, Federal Rules
of Civil Procedure.
Step 4
Body of Document
2.
3.
Citation of authorities. When you make a statement about the law in a court paper, you are expected to support the statement by citing the
authority for it. The term authority means the
source of the law supporting the statement you
are making. This may be a primary authority
usually a statute or a reported appellate court
decision that has the force of lawor a secondary authority such as the Restatement or a
textbook written by a legal scholar. To cite authority means to specify the place where it can
be found.
How do we cite legal authority, and what
should the format of a citation be? It depends
277
court paper, where appropriate. Longer quotations are blocked and indented; that is, set out
in a separate paragraph or series of paragraphs, usually single-spaced (but check your
local rules), with margins that are indented inward from the rest of the text. Only the quoted
material is blocked and indented; the citation
of the source of the quote belongs in unindented text before or after the quotation.
Quotation format is another subject best
learned by reading and imitating the work of
others. For those so inclined, however, the
Bluebook gives detailed rules.
5.
6.
278
Step 5
Step 6
Certificate of Service
To satisfy the requirement of serving a court paper, you must (1) deliver it in the right way, (2) to the
right people, and (3) be able to prove you did it. The
right way is easyall (well, almost all) court papers
after the complaint are delivered either by mailing
them or hand delivering them to the person who is
to receive them. Determining who the right people
are is usually also straightforward. Unless the judge
orders otherwise (sometimes done in complex
cases involving many parties), you serve every
court paper on every other party to the suit. Under
local rules in many courts, if the paper is a motion
or a response or reply to a motion, you must also
serve a copy on the judge. As with most issues in litigation, there are rules governing the minutiae of
how and on whom papers are served; the details are
the subject of another workshop (see Workshop 7
on service, docketing, and deadlines).
The proof that you served a court paper consists of a statement that appears at the end, following the attorney signature, reflecting the fact
that the paper was mailed (or hand delivered),
recording the date of mailing, and listing the names
and addresses of each recipient. FRCP, Rule 5(d),
calls this a certificate of service; be aware, however, that the terminology, layout, and content vary
considerably by locality. The certificate of service
shown later in Figure W42 is one of the common
styles; your instructor will inform you of the preferred layout in your locality. The mailing certificate must be separately signed; in theory, by someone with personal knowledge of the fact that the
paper was actually placed in the mail to the people
listed. In practice, mailing certificates are routinely
signed by the attorney or by a secretary, either of
whom is likely relying on a messenger or clerk to do
the actual mailing.
Although it might seem logical to do so, the
mailing certificate does not always include the clerk
of the court as one of the recipients. The proof that
you filed a paper with the clerk lies in the fact that,
if the paper found its way into the court file with the
279
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
2.
(Instructors opinion) Obtain one or two sample federal and state court filings to use as a
guide.
3.
From your notes, and using the rules you identified in Exercise 1, fill in Figure W43, which
will provide you with a handy reference source
for the common formal rules in your locality.
4.
5.
280
6.
7.
8.
(Step 3) Write suitable preambles for the following: (a) a motion for summary judgment;
Plaintiff,
vs.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife;
PARK HOTELS GROUP, INC., a
Delaware corporation;
Defendants.
_________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
NO. _____
[TITLE GOES HERE]
_______________
Allen Porter
Attorneys for plaintiff
281
STATE COURT
FEDERAL COURT
282
PRACTICE POINTERS
Public Records
Court case files, unless they have been sealed by the courts, are matters
of public record. Therefore, you can determine the litigation history of anyone
(and you will be most interested in the litigation history of opponents) by accessing the records in the court clerks office. Begin by checking with the
court clerks office to establish whether you must review the court files in person or whether the files are computerized. Typically these files are organized
as plaintiffs and defendants logs in alphabetical order. Consulting these logs
will provide you with case numbers and filing dates that will permit you to obtain and then review court records.
Other documents that are a matter of public record include:
Property deeds
Tax liens
Marriage licenses
Death certificates
Drivers licenses
Business certificates
Partnership filings
Professional licenses
State and local records are usually easily accessible; individuals can walk in
and request copies of documents. At the federal level, however, requests for
information often require going through the Freedom of Information Act
(FOIA). To initiate a FOIA request first check with the Code of Federal Regulations (CFR) and ascertain the appropriate federal regulations governing
record requests for the federal agency from which you are soliciting records.
The CFR regulations set forth the content requirements of written requests for
records, fee schedules, and other procedural requirements. These requests
should be sufficiently narrow in scope that the agency can readily identify the
nature of the records being sought; requests that are too broad are likely to
be returned by the agency with a demand for a narrower description.
283
TECHNO TIP
Many public records are now available
on the Internet. County recorders offices often have an index to all recorded
documentsliens, deeds, assignments,
etc.available at no cost. Some, like
the Maricopa County Recorders office at
http://recorder.maricopa.gov/recorder
/imaging, have name data available
back to 1983. Copies of recorded documents, however, are only available
back to September 1991. If you need a
document marked Official Copy you
will have to set up an account (at least at
the Maricopa County Recorders office)
and pay a fee for a computer printout of
the official document. In a like manner
the secretary of states office usually
maintains UCC filings, trade name registrations, and the like. It is now possible,
in many states, to do your UCC searches
on-line. The Arizona Secretary of States
web page is at www.sosaz.com. Copies
of UCC filings are available for those filed
after May 1994.
If you need to find out the assessed value of a partys real estate
(people with expensive properties generally carry more insurance coverage
than those of lesser means), you should
check your county assessors database.
Unlike the county recorder, the assessors office maintains records showing
the assessed value of a persons property. Other information, such as the
date of construction, number of rooms,
square footage of the residence, type of
garage, etc., is often also available.
Check the Maricopa County Assessors
page at www.maricopa.gov/assessor_
query_ form.asp for an example of the
type of information available from an
assessors office.
284
FORMS FILE
Summarize the mechanical, caption, and signature requirements
of court papers for the courts in your locality. Underline those requirements that are unique or particularly important (especially those that
are likely to result in a rejection of your filings if they do not comply
with local custom or requirements).
Include a sample copy of a certificate of service in your forms
notebook.
KEY TERMS
Certificate of service
Cite
Notice of service
Primary authority
Secondary authority
Drafting Pleadings:
Complaints
WORKSHOP
INTRODUCTION:
COMPLAINT DRAFTING
Complaint Drafting:
Step-by-Step Instructions
SIDEBAR
Dealing with Local Variability
Complaint drafting is a detail-intensive task,
and many of the details vary from state to state and
from court to court. At each step in the discussion of
this chapter, your instructor will tell you how to tailor your drafting to the courts of your locality.
We provide a checklist (see Figure W53 at end
of workshop) for you to write down these points of
local procedure. Filling in the details in the blanks
provided in the checklist will be your first task in
the hands-on segment of this workshop. You
may want to read Figure W53 now and keep it in
mind as your instructor explains the step-by-step
instructions.
PREPARATORY STEPS
The first two steps involve assembling the information that you will need to have ready as you begin
drafting.
Step 1
286
Step 2
As we will see, the complaint must allege each element of each legal theory or cause of action on
which you intend to base the suit.
In many lawsuits, the facts will support more
than one possible cause of action. It is a matter of
strategy whether to include all of the possible
causes of action in the complaint (the shotgun approach) or whether to rely on one or a few of the
strongest ones.
To be able to make this strategic decision, you
first need to identify all of the causes of action that
are possible under the facts given, and to determine
and list the elements of each one. For commonplace
causes of action, this may be very simple; you probably already know, for example, that the elements of
negligence are duty, breach of duty, causation, and
damages, without having to do any legal research. If
your suit involves more complicated legal theories
securities fraud, sayyou will need to spend some
time doing legal research before you will be ready to
start drafting.
Outlining the possible causes of action and
their elements is a task of sufficient importance that
we addressed it separately in Workshop 1. In this
complaint drafting workshop, we will use the issues
outline that we prepared in Workshop 1 as the basis
for drafting our complaint.
Your Local Notes
_________________________________________________
_________________________________________________
DRAFTING STEPS
Next, we begin drafting the complaint. For convenience, we will break the complaint up into smaller
parts and take each in the order in which it appears
in the complaint itself. You may find it helpful to refer to the sample complaint (see Figure W52 in a
later section).
Because matters of style and format are essentially the same for all court papers, we will not repeat the material covered in the workshop on court
papers (Workshop 4) except to note those few special requirements that apply to complaints.
Remember, one of the main jobs of the complaint is to begin the lawsuit. A civil action is commenced by filing a complaint with the court; see
FRCP, Rule 3. Notice that drafting a complaint is not
enoughyou also have to file it. To do that, you
must, at a minimum, prepare a complaint that the
clerk will accept for filing. When you (or, more likely,
your messenger or process server) present the
complaint to the clerk for filing, the clerk will check
to be sure you have followed various rules.
What things does the clerk check for at the time
of filing, and what kinds of mistakes may prompt the
clerk to reject the filing? First and foremost, the format must conform to the requirements in the courts
local rules. Caption, paper size, type size, line spacing, margins, backing sheets if requiredall must be
correct. Be especially attentive to obvious rules
such as the upper margin on the first page; many
courts require a large margin to accommodate the
stamps to be applied by the clerk. Another common
reason for rejection of a filing is failure to present
other required items, such as the filing fee and any
information sheet, arbitration statement, or other
papers required by local rule.
Step 3
Be aware that local rules sometimes specify additional bits of information to be included in the caption of the complaint, such as the type of case,
whether it is subject to arbitration, or whether a
jury trial is demanded. Your instructor will provide
you with the details for the courts in your locality.
Step 4
A complaint begins with a preamble, or introductory paragraph or phrase. Here we enter into the
stylistic aspects of complaint drafting (see sidebar). Individual preferences and local customs vary
from the simple and direct to the flowery and arcane. We favor the former, and believe that the modern trend is away from pleadings couched in archaic legalese.
As a preamble, we recommend the phrase
Plaintiff alleges: or, if there is more than one plaintiff, Plaintiffs allege:.
The individual paragraphs of the body of the
complaint are numbered, so that the answer to the
complaint can refer to each paragraph by number.
Customarily, the complaint is also divided into separate sections, or counts, for each separate cause of
action being asserted.
It is traditional, and still commonplace, to number the paragraphs of a complaint using centered,
capitalized, Roman numerals above each paragraph. This method is perfectly acceptable, although our preferred method is to number the paragraphs at the side using ordinary numbers because
large Roman numerals are confusing to many people. Some practitioners also number the paragraphs within each count separately, starting over
with Roman numeral one in each new count; we recommend against this practice because having several paragraphs with the same number can lead to
ambiguity and confusion.
Your Local Notes
_________________________________________________
_________________________________________________
Step 5
287
against future problems) to include jurisdictional allegations in all complaints. This practice also has the
virtue of forcing the drafter to think about the issue
of jurisdiction. Many defenses are lost if the defendant does not assert them early in the case, but the
defense of lack of jurisdiction can be raised at any
timeeven after trial! So if there are any lurking jurisdictional defects, they need to be found and dealt
with. Otherwise, you risk having your case suddenly
dismissed out from under you after you have spent
months of your time and thousands of dollars of your
clients money getting ready for trial.
It is also necessary, somewhere in the complaint,
to identify the parties. Since the courts jurisdiction
often depends on the residence of the parties, it is
convenient to group the pertinent allegations together at the beginning of the complaint.
In identifying the parties, the information to be
included is the following:
1. The partys full name, if known. (What if you do
not know a partys name? See sidebar on
unidentified parties.)
2.
3. If the party is a natural persona human beinggive his or her county and state of residence. (Why the county rather than the city?
Because the venue rules of most states are applied by county.)
4. If the party has some relationship with another
party in the suithusband, wife, employer,
etc.the relationship should be stated.
Paragraph 1, then, will identify and give the residences of the plaintiffs. For example: Plaintiffs
Ronald Albert Carson and Mary Jane Carson, his wife,
are residents of Los Angeles County, California. (If
there are more plaintiffs than will conveniently fit
into one paragraph, then continue identifying plaintiffs in as many additional paragraphs as needed.)
After all the plaintiffs have been identified and
their residences and relationships given, it is time to
identify the defendants. This is done in identical
fashion. For example: Defendant Elite Fastener Corporation is a corporation organized and existing under the laws of Delaware, whose principal place of
business is in Denver, Colorado.
We have seen (see Chapter 2) that we must be
concerned with two kinds of jurisdiction: jurisdiction of the subject matter and jurisdiction of the person of each defendant. In the simple cases in state
courts, the allegations giving the residence of the
parties are enough to establish both. State courts
288
Step 6
Step 7
General Allegations
289
SIDEBAR
Pleading Damages
Can you guess what single thing is an element of
every cause of action? Damages.
Lawsuits are about damages. You sue because you
have suffered some loss as a result of defendants conduct. What should you say about your losses in the
complaint?
At a minimum, you must allege that plaintiff has
been damaged. Should you specify the kinds of losses
or injuries plaintiff has suffered? Should you attach a
dollar value?
In general, the General Allegations section should
describe at least the general types of damages plaintiff has suffered. If plaintiff was physically injured, describe the type of injury; if plaintiff lost income or had
property damaged or destroyed, say how, in a sentence or two. If plaintiff was (or still is) in pain, or if
plaintiff has suffered some permanent injury or disability, these things should be mentioned. If plaintiff
has incurred financial losses or specific expenses, it is
important to allege at least the general categories,
such as, plaintiff incurred substantial hospital, physician, and related charges. . . .
FCRP, Rule 9(g) requires that items of special
damage . . . be specifically stated. General damages are the losses that would naturally be expected
to occur in every case based on the same theory of liability (for example, pain and suffering in a case of assault and battery). Special damages are the particular losses that your client has suffered, above and
beyond the general damages (for example, a medical
bill for setting your clients broken arm). The distinction between general and special damages can be
rather technical and esoteric, and this is not the place
for an extended essay on the subject; as a practical
matter, the lesson of Rule 9(g) is that you should al-
290
Step 8
Causes of Action
Having told your clients story, the task that remains is to allege each element of each cause of action. Our purpose now shifts from that of persuasively telling our clients story to that of forestalling
SIDEBAR
Truth or Consequences
Do you have to tell the truth in a complaint?
What happens if you do not? What do you do if you
are not sure what really happened?
FRCP, Rule 11, is a very important rule, one that
you should read, understand, and take to heart. It
sets the boundaries between permissible advocacy
and improper twisting of the facts. Rule 11(b) says
that when an attorney files any court paper with the
court, he or she is certifying that, to the best of his or
her knowledge, information, and belief, the allegations and other factual contentions have evidentiary
support, or, if specifically so identified, are likely to
have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .
Therefore, if you state in your complaint that
defendant John Doe was intoxicated at the time of
the collision, you are certifying to the court that
you have evidence that defendant was, in fact, intoxicated. The penalties allowed by Rule 11 for
making bold factual statements that you cannot
support can be quite severe, up to and including
dismissal of your case and imposition of fines. The
unstated penalty is perhaps even more severe: Attorneys who play fast and loose with the truth
quickly lose their credibility with the court.
What if you are pretty sure that defendant was
intoxicated, and you think that you will be able to
prove it after you obtain discovery of defendants
blood alcohol test? Rule 11 offers the solution: You
specifically identify that fact as one that is likely to
have evidentiary support after a reasonable opportunity for discovery. How? The standard shorthand
consists of the phrase, upon information and belief. For example, Upon information and belief,
defendant John Doe was intoxicated. . . .
a motion to dismiss for failure to state a cause of action. Our exhortations about avoiding legalese
and technical language do not apply here. Indeed, it
is often better to recite the elements of the causes
of action in the exact language of the cases or
statutes from which they are derived, since doing
so will make it harder for defendant to argue later
that we have omitted some element.
291
SIDEBAR
Alternative Pleading
Suppose Doug Ryder is a bouncer at the Rowdy
Bar and Grille, and in the course of breaking up an altercation between other patrons, Doug hit your client
with a pool cue. You are not sure whether Doug deliberately hit your client or was merely careless. If
Doug acted deliberately, your client has a claim for
battery, which is an intentional tort. If Doug was just
careless, the claim should be for negligence. What
should you do?
Then, in the Causes of Action section of the complaint, you include both a count of battery and a
count of negligence against defendant Doug Ryder.
These two counts are, of course, inconsistentDougs
act of striking plaintiff with a pool cue cannot have
been both intentional and unintentional. Does this
matter? Not as long as you have a reasonable basis to
believe that the evidence, once discovered, may support either version.
SIDEBAR
Notice Pleading
Is it really necessary to recite laboriously the elements of each of your causes of action?
To answer that question, we must review a bit of
history. In the early part of this century, pleading had
evolved into a complex and arcane game in which
trivial missteps could lead to sudden dismissal. The
federal rules, first adopted in 1938, were intended to
do away with this emphasis on form over substance by
adopting what was termed notice pleading. In theory,
the complaint is merely required to give notice to the
defendant that suit has been filed, with at least some
reasonable indication of the subject matter. For example, in theory, a complaint with only one allegation
292
Next should follow the causes of action themselves, set out in counts, one count for each separate theory of liability or cause of action. Each
count begins with a centered heading, with the
counts numbered in sequence. (In very simple
cases, where there is only one theory of liability and
it applies equally to all defendants, there will be
only one count. In that case, it is unnecessary to set
it off separately with its own heading.) To make the
complaint easier to read, we suggest that the heading also state on what theory of liability this count
is based, and indicate to which defendants it pertains. For example,
COUNT INegligence
(All defendants)
or,
COUNT XIVBreach of Contract
(Against defendants Rogers and Acme Foundry
Corporation)
In garden-variety suits for damages, after alleging the elements of each theory of liability, you are
finished with the counts and ready to move on to
the prayer for relief (see Step 9). In more complex
cases, however, where you are asking for more than
just ordinary damage, you may need to include
some additional counts to cover the particular
kinds of relief you are seeking.
For example, to receive punitive damagesdamages intended to punish the defendantyou must
show that defendant acted in an unusually reprehensible manner deserving of punishment. Exactly what
you must allege and prove to receive punitive damages depends on the substantive law on which your
suit is based. Whatever the elements are that you
must prove, allege them in a separate count for punitive damages. (In the sample complaint later in this
workshop, Figure W52, we have used the standard
for Arizona. Cases potentially involving punitive
damages arise often enough that you should find out
what the standards are in your state, either from
your instructor or as a research exercise.)
Likewise, there are additional allegations that
must be included if you are asking the court for an
injunction or for a declaratory judgment. You can
treat such requests simply as additional counts,
making sure to include all of the elements required
under whatever law applies to your case.
Step 9
293
reliefwrite exactly what you want the court to order defendant to do. If you are seeking a declaratory
judgment, write the exact wording of the declaration you are seeking and include it in the prayer. If
your lawsuit involves categories of damages other
than general and special damagespunitive damages, treble damages under various statutes, etc.
these must be requested.
Step 10
Date, Signature,
and Verification
294
CONCLUDING STEPS
Step 11
Step 12
Check Accuracy
and Make Revisions
When you have completed your draft, read it carefully and make a systematic check for errors. This
should include at least the following:
1.
2.
3.
Step 13
295
296
SIDEBAR
Unidentified Parties
You are about to sue Arnold Lush, the negligent
driver that backed his delivery truck into your clients
new Porsche, when you suddenly realize that you are
in a community property state, you think Arnold is
probably married, but you are not sure, and you certainly have no convenient way of finding out his wifes
name. Furthermore, you are pretty sure that Arnold
was on the job when the accident happened, but you
do not know who Arnolds employer is.
What do you do?
It depends on the court. Obviously, you need to
get the complaint filed against Arnold so you can take
some discovery and find out the identities of Mrs. Lush
and Arnolds employer. One option would be to leave
out all mention of Mrs. Lush and the employer, file the
complaint against Arnold, take discovery, and then
amend the complaint to add the new parties. One
drawback to this approach is that if Mrs. Lush and
the employer can claim that they did not become
aware of the suit until after the statute of limitations
ran, you may not be allowed to add them as parties.
Another is that, because of the delay in completing
the pleadings, it may take longer to get the case
scheduled for trial.
297
SIDEBAR
SIDEBAR
Precision in Drafting
Drafting Style
One way in which complaint drafting is different from other kinds of writing is the need for a
high degree of precision. It is not enough to write
allegations that can be interpreted to imply a cause
of action; the complaint must actually state a cause
of action in unambiguous terms. When you draft a
sentence in a complaint, ask yourself if it is capable
of any interpretation other than the one you intend. If so, rewrite it.
As with most writing in litigation, an important goal of complaint drafting is to convince the
reader of the rightness of your cause. This is best
done by writing in a style that focuses the readers
attention on the message, not on the words used.
guide your work, and try to make sure that you have
accomplished each one.
1. Commencing the lawsuit.
2. Stating your claims in a way sufficient to avoid
dismissal.
_________________________________________________
_________________________________________________
298
Complaint Drafting:
Learning By Example
We now use our step-by-step instructions to draft a
complaint on behalf of Shannon Martin.
PREPARATORY STEPS
Step 1
Step 2
DRAFTING STEPS
We now begin drafting, using Steps 3 through 10.
The finished product is shown in Figure W52.
299
CONCLUDING STEPS
Step 11
)
)
)
Plaintiff,
)
)
v.
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware
)
corporation;
)
)
Defendants.
)
)
_______________________________________ )
NO. _____
COMPLAINT
Plaintiff alleges:
JURISDICTION AND PARTIES
1. Plaintiff Shannon Martin is a resident of Maricopa County, Arizona.
2. Defendants Arthur Collins and Jane Doe Collins are residents of Dallas County, Texas.
Defendant Jane Doe Collins is the wife of defendant Arthur Collins. At all times material hereto,
defendant Arthur Collins acted both individually and on behalf of the marital community consisting of
defendants Arthur Collins and Jane Doe Collins. Plaintiff does not know the true identity of defendant
Jane Doe Collins, and will seek leave to amend her complaint to reflect such true identity after
ascertaining it. Defendant Arthur Collins caused an act or event to occur in the state of Nevada out of
which plaintiffs claims arose.
3. Defendant Park Hotels Group (hereinafter Hotel) is a corporation organized and existing
under the laws of the state of Delaware, and doing business in the state of Nevada out of which plaintiffs
claim arose.
4. This Court has jurisdiction of this matter under the provisions of 28 U.S.C.1332. The amount
in controversy is greater than $75,000.
300
301
Allen Porter
Attorneys for plaintiff
Step 12
Step 13
302
Complaint Drafting:
Learning by Doing
Your main task for this workshop is to draft a complaint yourself. To do this, you need a fact situation. For most students, we suggest the following
assignment:
You are a paralegal in the law office of Roger
Yarborough, attorney for Dr. Arthur Collins. Assume
that Dr. Collins is a resident of your city, that
Banbury Park Hotel is located in another city in
your state, and that Roger Yarborough practices in
your city. Shannon Martin resides in Arizona, and
Park Hotels Group, Inc., is incorporated in Delaware.
After discussing the case with Allen Porter,
Roger Yarborough realizes that Porter is about to
file suit on Shannons behalf, naming Dr. Collins as
one of the defendants. Yarborough decides that he
would prefer to seize the initiative and file the suit
himself. He assigns you to draft a complaint on
behalf of Dr. Collins, for filing in the state superior
court (or county trial court) having jurisdiction in
your locality.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1. Review your notes, assemble the information
about the local requirements in your jurisdiction, and fill in the Figure W53 checklist.
2. (Step 1) Decide who Dr. Collins should sue.
Assume that Shannon Martins marital status is
unknown. Consider, with your instructors
guidance, whether your complaint should include fictitiously named parties.
3. (Step 2) Decide what theories of liability to assert and determine what their elements are. If
you have completed Workshop 1, Claims and
Their Elements, you should be able to obtain
most of the information that you will need from
the exercises in that workshop. If not, your instructor may wish to assign you to research
one or more of the theories of liability.
4. (Step 2, optional) If you completed Exercise 1
from Workshop 1 and made a list of possible
causes of action, now list all of the causes of action on that list that you have decided not to in-
303
SIDEBAR
Local Details Complaint Form and Filing Requirements
Form and Format: (see also Workshop 4, Court Papers)
Captionspecial requirements
Spouses of defendants
PRACTICE POINTERS
Locating Attorneys and Court Files
Sometimes you may find it helpful when drafting a complaint or when
preparing other documents to have a model on which to base your work. Suppose you read about a case that is very similar to yours. How could you locate
the attorney who litigated the case, assuming the article or case decision you
read included his name?
You could begin by contacting the attorneys law office and talk to the attorney or his staff about the case. But how would you get the telephone number? If the article or decision you were reading gave the name of the city and
state in which the attorney was practicing, you could look in MartindaleHubbell, which provides a compilation of the names of attorneys, their areas
of practice, and personal data, including phone number, fax number, address,
e-mail address, and web site.
Alternatively, if you knew the trial court in which the litigation occurred,
you could use the courts indexing system to pull the court file. Going to the
court clerks office, you could ask for the plaintiff or defendants index and look
under the plaintiffs or defendants name. In this file you might find, in addition
to information about the disposition of the matter, a gold mine of information,
including pleadings, copies of interrogatories, requests for production, and
304
various motions that might be well researched and well written. If the case
were recent enough, you might even be able to use the jury instructions to assist in drafting jury instructions for your case. After reviewing the file, you
could make copies of exemplary documents. If the case were particularly instructive, you would want to ask the attorneys or their staff questions or ask
to see their files. Remember that imitation is the sincerest form of flattery.
If the case had been appealed but the decision was not published, you could
contact the appellate court and find out how to get a copy of the decision. At
the clerk of the appellate courts office you would look in an index similar to that
used by the trial courts. In addition to reviewing the documents listed above,
you might want to look at briefs to take advantage of the research done in
preparing them. You might also look for transcripts of oral arguments, which
might, on request of the clerks office, be available on audio tape.
TECHNO TIP
Many students have problems setting
up the caption due to the general use
of right-hand parentheses that set the
partys name apart from the case number and title of the document. While
the use of parentheses is almost universal, most court rules make no mention
of the need for them.
If you set up your new form using
a template rather than a blank file that
you later recopy you can avoid many
problems. You should also make sure
not to use the tab key to set the righthand boundary of the caption for the
partys names. If you use the tab key,
when you input the names, the parentheses will move to the right. If you use
the space bar to set the boundary, and
input the party's name with the overstrike (insert) function on, the boundary will not move as you type in the
data. More sophisticated users can set
up forms that automatically ask for, and
insert, the partys names.
FORMS FILE
In your forms file, include as many samples of complaints as you
can find that your instructor or legal mentor believes exemplify good
complaints. Try to get copies of complaints that represent a number of
different areas of the law, for example, personal injury, contract, workers compensation, domestic relations, real estate, criminal, probate,
and bankruptcy. Include samples that show spouses of defendants, fictitiously named defendants, allegations of punitive damages, and requests for a jury trial.
Also, print a list of the format requirements for complaints as dictated
by your local rules, including paper size, line spacing, margins, special
caption requirements, date and signature line format, the preferred practices for pleading damages, layout, and paragraph numbering. Include
also the appropriate filing fees and any other required items, such as information sheets or arbitration statements.
KEY TERMS
General damages
Special damages
Serving
the Complaint
INTRODUCTION: RATIONALE
BEHIND SERVICE OF COMPLAINTS
Lawsuits are made mostly of paper. A paper (the
complaint) starts the lawsuit; the opposing litigants
fire numerous other papers at each other as the suit
progresses. As we will see in Workshop 7, most of
these papers are delivered informally, either by ordinary mail or by messenger. They are delivered not
to the party, but to the attorney of record for the
party; see FRCP, Rule 5.
The summons and complaint are a different
matter, and covered by a separate rule; see FRCP,
Rule 4. Ordinary mail does not suffice for serving
the summons and complaint; the requirements of
Rule 4 are much more demanding than that, and
there are good reasons for insisting on formality:
When we serve a summons and complaint on someone, we want to be sure we get their undivided attentionwe do not want our lawsuit mistaken for
junk mail! The U.S. Supreme Court has ruled that a
person being sued is entitled to be notified of that
fact by the best means possible under the circumstances. It would be fundamentally unfair to allow a
lawsuit to proceed and judgment to be taken
against someone who has not even been made
aware that there is a suit. Therefore, as we saw in
Workshop 2, proper service of the complaint is a jurisdictional requirement, without which the court
has no power to enter a binding judgment.
Because the defendant has no attorney of
record in the suit at the time the complaint is filed,
the summons and complaint must be served on the
defendant himself, rather than on the attorney representing defendant. You might suppose that serving a complaint would be a simple enough task, and
if the defendant is an individual who resides locally,
often it is. But in many lawsuits, at least some of the
defendants are entitiesdefendant X may be a corporation, or a partnership, trust, estate, government agency, or any of a number of other kinds of artificial targets. Or defendant may be located in some
other state or country. Then what? As we will see,
FRCP, Rule 4 provides a variety of options.
In this workshop, we explore the details of formal servicethe type used for summonses and
complaints, as prescribed by FRCP, Rule 4. Then, in
Workshop 7, we will learn about routine service of
other court papers under FRCP, Rule 5, and address
the important subject of deadlines and how to compute them.
WORKSHOP
306
have been filed for each defendant named in the lawsuit. If any are missing, a notice will be sent to plaintiffs attorney, stating that the suit will be dismissed
as to the defendants not served unless plaintiff
shows good cause for the failure. If plaintiffs attorney
convinces the court that there is a good reason why
more time is needed (i.e., defendant is hiding) the
court will extend the deadline. If plaintiffs attorney
does nothing, or fails to persuade the judge that more
time is warranted, the court will order the unserved
defendants dismissed from the suit.
The dismissal, if any, is without prejudice. This
means that plaintiff is free to refile the complaint and
try again. In practice, however, refiling does not usually repair all of the damage. First, the lawsuit is now
fragmentedinstead of a single lawsuit against all
defendants, you have two lawsuits: the original one
against the defendants whom you did succeed in
serving, and a new one against the defendant whom
you are still trying to serve. Perhaps you can find
some way to combine them back into a single lawsuit
before trial, and perhaps not; either way, the procedural complexity of the situation has multiplied considerably and you will not get the whole case to trial
or judgment as soon as you otherwise would have.
Second, and most important, statutes of limitations
may have expired in the time since the lawsuit was
first filed; some or all of your causes of action against
the dismissed defendant may now be time barred.
The validity of service is measured one defendant at a time. Service on defendant A does not obligate defendant B to appear and defend, even if defendant B is (for example) married to defendant A
and hears all about the suit that evening at dinner.
What happens, then, if we are simply unable to
serve one of the defendants? Usually, we are free to
proceed against all of the other defendants whom
we have succeeded in serving (unless the judge determines the missing defendant to be an indispensable party under FRCP, Rule 19, which involves
complexities beyond the scope of this text).
Whether the suit will still be worth pursuing with
defendants missing is a more complex question and
depends on the circumstances. Certainly, we will
have fewer targets from which to collect the judgment if we win. Nor will we be able to obtain discovery from the unserved defendants. (If we cannot
serve the summons and complaint, it is unlikely we
would be able to serve a subpoena.) Worse, in some
states, if two defendants are jointly liable for an injury, and we are able to serve only one of them, we
will not be able to recover full damages because the
defendant whom we have served is required to pay
only his fair share of the damages, not the share attributable to the other defendant. (Your instructor
will inform you whether your state has a joint and
several liability statute.)
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Step 1
Service of process is a formal way of delivering papers; to accomplish it, you must have the right papers to deliver. What, exactly, has to be delivered?
Two things are required in every case: (1) a summons and (2) a copy of the complaint; see FRCP,
Rule 4(c)(1).
Any other court papers that are filed at the
same time as the complaint are served with it. This
is necessary because FRCP, Rule 5(a) requires all
filed court papers subsequent to the complaint to
be served on every party. Because no defendants
have appeared or filed answers yet, service on the
attorneys by mail under FRCP, Rule 5(b), is not an
option; therefore, any papers filed with the complaint must be served in accordance with Rule 4.
What other papers might be filed and served
with the complaint? For one example, local rules in
some jurisdictions require the filing of a separate paper stating whether or not the case is subject to
compulsory arbitration. For another, it is permissible in some state courts to issue discovery requests,
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Step 1 is complete when there is a properly issued summons and a copy of the complaint for each
defendant to be served.
Step 2
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Step 3
310
not delve into the details of how agents are appointed or the paperwork and other formalities involved; those are subjects for another course. However, keep in mind that there will often be no formal
written appointment, nor are such documents necessarily made public even when they exist.
An agency can be created for almost any conceivable purpose, including receiving service of
process. You can appoint someone else as your
agent with authority to receive service of a summons
and complaint on your behalf. If you do so, then a
process server could serve a lawsuit on you by delivering the summons and complaint to your agent.
Why, you may be wondering, would you want to
appoint an agent and make it easier for someone
else to sue you? One reason may be that you are entering into a contract with someone who wants to
be sure they can get you into court if a dispute
arises, so they insist on appointment of an agent as
part of the deal. Or the appointment may be required by law, as we are about to see.
Your Local Notes
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corporation, to do all the things reasonably necessary in running a business, including defending
lawsuits. The president of a corporation is considered to have implied authority to receive service of
the summons and complaint when the corporation
is sued. Certain other officers of the corporation are
also deemed to have implied authority to receive
service of process. That is why, under the federal
rules as well as the rules of most state courts, service of the summons and complaint can be made on
a corporation by delivering the papers to an officer, a managing or general agent, or to any other
agent authorized by appointment or by law to receive service of process . . . , FRCP, Rule 4(h).
It is not necessarily easy to be sure who qualifies as an officer or a managing or general agent for
purposes of FRCP, Rule 4, and the equivalent state
court rules. High officers such as the president,
CEO, the secretary of the corporation (a corporate
office, not the kind of secretary who types and
files), and the treasurer clearly have authority to receive service. Determining whether a given lower
level officer qualifies may require some legal research. Fortunately, it is usually not necessary to
chase down corporate presidents, because there is
an easier way to serve process on corporations.
One of the usual requirements that a corporation must meet when filing incorporation papers is
to appoint an agent to receive service of process.
Most states also require out-of-state corporations
to appoint an agent to receive service before doing
business in the state. You can easily get the name
and address of a corporations appointed agent by
calling the state agency that regulates corporations. (Your instructor will tell you what the agency
is called in your state; Corporations Commission
and Department of Corporations are two of the
common names.) Therefore, serving process on a
corporation is usually as simple as making one
phone call to get the name and address of the agent
and instructing your process server to deliver the
papers there.
Your Local Notes
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Step 4
plaint by mail in either federal or state court, following the procedures prescribed in your state
court rules.
To serve a summons and complaint by mail,
you first mail the papers to defendant using the
class of mail prescribed by your state court rules
usually registered or certified, with a return receipt.
The return receipt is a postcard with your return
address on it, which is attached to your envelope.
The post office will deliver the letter only after the
addressee signs the return receipt; the return receipt is then mailed back to you, furnishing proof
that the letter was actually received. After you receive the return receipt, you prepare and file an affidavit reciting the circumstances making mail service appropriate (i.e., defendant is located in
another state); that you mailed the summons and
complaint addressed to the defendant as prescribed by the rule; and that you received the return receipt back with defendants signature on it.
The affidavit serves as a return of service; that is, it
provides a record in the courts file showing that
service was made.
As a practical matter, mail service is essentially
useless against a defendant who is determined to
resist. The reason lies in the requirement that the
return receipt be signed by defendant. Defendant
can easily defeat service simply by refusing to sign,
in which case the post office will return the envelope to you undelivered.
Nonresident motorist statutes: Motor vehicle accidents involving vacationing tourists and out-ofstate truckers are a sufficiently common occurrence
that state legislatures have adopted statutes to facilitate service of process. Typically, these provide
that any nonresident, by the act of operating a motor vehicle in the state, automatically appoints some
designated state official as an agent to receive service of process in any lawsuit arising from that act.
So, in accident lawsuits against out-of-state drivers,
one option is to serve the summons and complaint
on the designated state official. (Your instructor will
give you the citation for the nonresident motorist
statute in your state.)
For such service to be valid, you must follow
the procedure set out in the statute exactly
close does not count. The drawbacks are the
same as with registered mail service: The statutory
procedure typically requires you to send copies to
defendant by registered or certified mail and to produce a return receipt signed by defendant.
In a modern litigation office, by far the preferred
way of serving process on out-of-state defendants is
to employ a process server firm with connections in
the target state. Alternatives such as county sheriffs and registered mail service may seem to offer
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disputed, and with a minimum expenditure of attorney or paralegal time, and serving a designated
agent is usually the method of choice.
Your Local Notes
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Serving Other EntitiesA corporation is one example of an entity type of defendant. (Recall that an
entity is an artificial person or organization which
the law treats as having its own existence.) You can
undoubtedly think of many other kinds of entities,
and you may even find it necessary to sue one. Here
are a few of the more common entities:
Partnerships: A partnership is an association of
two or more persons who join together in some
common business endeavor. As a business entity,
the operation of a partnership is generally similar to
that of a corporation; the income tax treatment of a
partnership, however, is quite different.
Suing a partnership is inherently more complicated than suing a corporation. If you win a lawsuit
against a corporation, you get a judgment against
the corporation, which you can collect only from
the corporations assets. A judgment against a corporation does not entitle you to collect from the corporations shareholders. This insulation of the owners (the shareholders) from liability is one of the
main reasons for forming a corporation.
General partners of a partnership, on the other
hand, are personally liable for the obligations of the
partnership. Therefore, when suing a partnership,
you can potentially get judgment not only against the
partnership itself as an entity, but also against each
of the general partners. To do so, of course, you must
name each partner as a defendant and serve the summons and complaint on each one. It may sometimes
require considerable research and detective work
just to arrive at a list of all the partners.
Furthermore, it is possible to create a partnership without leaving much of a paper trail. Unlike corporations, which cannot exist unless the proper papers are filed with the proper state agency, any two or
more people can create a partnership without filing
anything anywhere. And even if an agent to receive
service of process has been appointed, you will not
be able to find out about it with one phone call.
As a practical matter, therefore, the usual way to
serve process in a suit against a partnership is this:
First, to bring the partnership as an entity into the
suit, serve the copy of the summons addressed to
the partnership, with a copy of the complaint, on
any general partner. [Although FRCP, Rule 4(h),
tive, that person does not actually become one until the probate court appoints him or her (or it
corporations such as banks are often appointed as
personal representatives). You can find out
whether probate has been filed and a personal representative appointed by checking the court
records at the office of the clerk of whatever court
handles probate matters.
What if there is no properly appointed personal
representative? What if no probate has been filed?
Here, the situation gets more complicated, and you
will have to research your options. Most likely, you
will have to apply in probate court and ask for a personal representative to be appointed.
A trust is an entity in which one person (called
the grantor or trustor) transfers property to another person (called the trustee) with instructions
to use the property for some specified purpose.
Trusts are often used in estate planning as a tool for
keeping property under professional management
(by the trustee), particularly when the heirs are too
young to be entrusted with it. Any kind of property
can be conveyed into trust, including real estate
and going businesses, so it is sometimes necessary
to be able to sue a trust. This is done by naming the
trustee as a defendant; the summons and complaint
are served on the trustee.
Your Local Notes
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Step 5
Step 6
Step 7
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Step 1
Step 8
The rules require each defendant to file either an answer or a motion to dismiss within a specified number of days after service of the complaint. Any defendant who fails to do so is in default, and plaintiff
can begin procedures to obtain a default judgment.
(Recall that a default judgment is not automatic;
plaintiff must take the required steps.)
The normal time allowed for responding to a
complaint in federal court is 20 days from the date
of service; see FRCP, Rule 12(a). Other time periods
may apply in suits against the government [see
FRCP, Rule 12(a)(3)] and in certain other situations.
Check the particular rule or statute for the mode of
service used to see if a different response time is
specified.
When you file each return of service, you compute the date on which the answer will be due and
docket it on the office calendar. How? As usual,
there are rules governing the computation of due
dates, and, as usual, it is not always obvious how the
rules should be applied. We will study the art and
science of computing and calendaring due dates in
much more detail in Workshop 7. For our present
purposes, the point is that whenever you serve any
court paper to which an opposing party must re-
We have the complaint which we prepared in Workshop 5. We will need the following:
All of these papers must be taken to the filing window at the office of the clerk of the court and presented for filing. None of the defendants we will be
serving are local. If our firm has an arrangement for
regular pickups by a process server, we may leave
the papers with the process server with instructions to file the complaint and bring back the issued
summonses and copies. Or we may instruct a secretary or messenger to take the papers to the
clerks office for filing and return with the summonses and copies of the complaint.
Step 2
Step 3
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Step 4
Step 5
318
Allen Porter
Step 6
Step 7
In the case of Dr. Collins, we will not need to file a return of service; we will file the waiver instead. For
the service on Park Hotels Group, Inc., the process
server will provide the return of service after service has been completed. The process server may
file the original with the court and send us a copy
for our file, or may send us the original, in which
case we would keep a copy and send the original to
the clerks office for filing.
Step 8
SIDEBAR
Professional Courtesy
It is sometimes physically impossible for defendants attorney to file an answer within 20 days after the complaint is served, especially if the client
waits until the nineteenth day before seeing an attorney! What then?
One thing that defendants attorney (or paralegal) must never do is to ignore the problem and
hope that plaintiffs attorney will not notice if the
answer is a few days lateto do so is to invite a
malpractice suit. Instead, the usual practice is to
ask plaintiffs attorney for an extension.
In most localities, there are well-developed customs governing the asking and granting of extensions and other favors between opposing attorneys. These customs, known as professional
courtesy, harken back to the days when lawyers
were expected to be gentlemen and behave accordingly. If an attorney were asked for a reasonable accommodation by a brother lawyer, it would
be granted as a matter of courseto refuse would
be ungentlemanly.
Extensions of deadlines are still routinely
granted in most localities, out of pure self-interest if
for no other reason. An attorney who refuses a reasonable extension request can expect to have his
own feet held to the fire the first time he needs an
extension. What is reasonable? Local custom dictatesyour instructor will inform you of the usual
practice in your locality.
One way in which modern practice differs from
the days of gentleman lawyers is in the documenting of extensions when they are given. No
longer is it acceptable simply to rely on another
lawyers word without confirming the extension in
writing. In some courts, the rules require any extension to be reduced to a written stipulation, signed
by both attorneys and filed with the court. In others, it is sufficient for one of the lawyers to send the
other a confirming letter. Again, your instructor will
inform you of the practice in your locality.
What if plaintiffs attorney refuses to grant an
extension? Must defendants attorney refuse the
representation or risk a default? No; the alternative
is to ask the court for an order extending the deadline. The judge has the authority to extend most of
the deadlines provided for in the rules. Never assume that the judge will do so, howeverthe deadline is the deadline until the judge has actually ordered it extended.
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(Step 3) At random from the telephone directory, choose one individual living in your locality
and one corporation that you know does business in your locality. (Optionally, your instructor
may provide this information.) Contact a
process server and explain that you are a paralegal student, and obtain copies of the service instructions form preferred by that process server.
(Hint: A great way to contact a process server is
to go to the office of the clerk of the court toward
the end of the day. Usually there will be a number
of process servers standing in line waiting to file
papers, and since they are stuck standing in line
anyway, they wont mind talking to you and giving you the benefit of their advice and experience.) Pretend that you are suing the individual
and the corporation that you chose in your local
state court, and obtain the information necessary to complete the service instructions form.
PRACTICE POINTERS
Client Communications
The primary culprit behind many malpractice claims is a breakdown in communication between client and attorney. Poor client relations is probably the single most important factor contributing to these claims. In fact, the most common
complaint registered against attorneys, according to most state bar organizations,
is lack of communication. The failure of lawyers to communicate with their clients
has resulted in so many disciplinary and civil complaints that the American Bar
Associations Model Rules of Professional Conduct now include Rule 1.4, which requires clients to be kept reasonably informed about the status of their case.
One simple way attorneys can keep clients informed is to send them
copies of everything that is done in their case. When the complaint is filed, a
conformed copy should be sent to the client; when summonses are mailed to
defendants, copies of those summonses should be delivered to the client;
when responses are received from the opposition, copies of those responses
should be mailed to the client. In this way clients are immediately aware of the
shifts and turns their case is taking and they have an ongoing sense of the status of their case. They are then less resistant to observations and suggestions
made by counsel and they feel more connected to their cause of action. Without such efforts at communication, clients have a tendency to feel they have
lost ownership of their case and begin to feel as if the attorney/firm is working against them instead of on their behalf.
Therefore, the simple act of keeping clients apprised as to the current status of their case and making them aware of the strengths and weaknesses of
their case can minimize exposure to malpractice claims. Additionally, regular
communication helps create realistic expectations on the part of the client and
reassures the client that his case is important to the firm.
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TECHNO TIP
As you have seen, a licensed process
server is not required to serve process in
federal court. Most states do require
that process be served by approved or
licensed individuals. Sheriffs deputies
are often given the right to serve
process by virtue of their office. Costs
can occur when you do not have a current address for the person or entity to
be served. The process server, although
not usually the sheriffs deputy, will attempt to locate the person to be served,
for an additional fee. The procedure, often referred to as skip-tracing, can be
expensive. Before you send process out
for service, check to make sure the address is correct. If it is not use the Internet for a quick check on a persons current address before paying someone
FORMS FILE
Make a list of the papers that must be included when filing a complaint in your jurisdiction. Write down the process that must be followed in serving process on a corporation as well as the method of
identifying the agent appointed to receive service. Also, write out the
process you must follow in serving an out-of-state defendant either personally or by mail and in serving a government agency.
KEY TERMS
Abode service
Administrator
Agent
Decedent
Executor
Grantor
Implied authority
Personal representative
Principal
Probate estate
Professional courtesy
Trustee
Trustor
Waive
Paper Flow in a
Litigation Office:
Service, Docketing,
and Deadlines
INTRODUCTION: THE DEVIL
IS IN THE DETAILS
In this workshop, you will learn about the rules that
govern the flow of lawsuit paperwork: how incoming
papers are received, how outgoing papers are delivered, how deadlines are computed, and how proper
office systems can be used to prevent costly mistakes. These subjects may seem trivial, but they are
not: Many a lawsuit has been lost over what
amounts to paper-handling errors.
When plaintiff serves a complaint on defendant
to begin a lawsuit, a clock starts running. Defendant
has a fixed number of days in which to file and serve
an answer. Defendants attorney must do several
things: (1) Consult the rules of procedure and determine exactly how many days defendant has (the answer depends on the circumstances); (2) compute
the deadline date, which is the last day on which the
answer can be filed and still be considered on time;
(3) record the deadline in the office calendaring system so that appropriate reminders will be generated;
(4) prepare the answer before the deadline; and
(5) file the answer and serve it on the opposing party
in the correct manner. A mistake anywhere along the
way may cause a default to be entered against defendant, leading to a series of other consequences
none of which is likely to be career enhancing.
This sequence is repeated over and over in the
course of a lawsuit. One party files something (a motion, a notice, a discovery paper) and serves it on
the opposing party; the rules of procedure allow the
opposing party a fixed time in which to respond.
The response may itself trigger some action, setting
up an entire chain of actions and responses.
Each step in the sequence must be carried out
correctly. A complaint that is not served exactly in
accordance with the rules may be treated as if it were
not served at alleven if the opposing party clearly
received it. If the judge is about to rule on a motion,
and your response has not been filed, it does not
matter whether you were only a day late or an entire
month latethe result is likely to be the same. When
you are dealing with the paper-processing requirements of the rules, approximately correct and
nearly on time are not good enough.
Office procedures in a litigation law office are
specifically designed to facilitate this process of
WORKSHOP
time-sensitive moves and countermoves. Court papers of various kinds flow into the office in the morning mail (and throughout the day by messenger and
fax). These are processed, often by paralegals, to determine what kind of response is required, deadlines are computed, they are calendared appropriately, and then each incoming paper is passed to the
attorney or paralegal responsible for the case to
which it pertains. The smooth operation of all this
paper processing is absolutely critical to a successful litigation practice. Any law office, large or small,
that fails to approach the task carefully and systematically will sooner or later have some important paper fall through a crack, and find itself on the receiving end of a malpractice suit.
Usually, the event that sets the clock running
and triggers the need for action is the service of
some paper. Many different papers are generated in
the course of a lawsuit, and most require a response
of some kind within a specified number of days after
service. Recall that service means the delivery of a
court paper in the manner prescribed by the rules.
What kinds of papers have to be served on opposing parties? How is this delivery accomplished?
To whom is the paper delivered? In what manner is
it delivered? For most papers generated after the
lawsuit is under way, the answers to these questions
are simple: Every paper filed with the court must be
served on all parties, and this is done by sending a
copy of the paper to the attorney for each party, by
ordinary mail; see FRCP, Rule 5.
Your Local Notes
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What Papers Must Be Served?The short answer is that all papers generated under the rules of
procedure must be served on all opposing parties.
Specifically, FRCP, Rule 6, requires service of the following types of court papers:
Court orders,
Pleadings subsequent to the complaint,
Discovery papers,
Written motions except those that may be
heard ex parte, and
Every written notice, appearance, demand,
offer of judgment, designation of record on
appeal, and similar paper.
In practice, these options usually can be reduced to two: A paper is served either by mailing it
to the office of the partys attorney, or by sending a
messenger who will hand the paper to the receptionist in the attorneys office.
SIDEBAR
Is The Process Server
Out of Work?
Even though FRCP, Rule 5, allows most papers
after the complaint to be served informally by mail
or delivery to the attorneys offices, a few situations
still arise in which papers are usually served the
hard way, by a process server. These situations typically involve the service of court orders of various
kindssubpoenas (recall that a subpoena is a
court order requiring a witness to appear), orders
to show cause, and injunctions are a few examples.
The reason for using formal service in these situations is not that the rules necessarily require it
in fact, FRCP, Rule 5, specifically includes orders
among the categories of papers for which informal
service is allowed. Rather, the reason has to do with
the way in which court orders are enforced. What
happens if someone violates a court order? The
usual remedy is for the judge to hold the person in
contempt of court; jail time and fines can be imposed as punishment for such disobedience. There
is, however, a catch: Before the judge can hold
someone in contempt, he must have proof that the
person was aware of the court orderin other
words, the disobedience has to be deliberate. As a
practical matter, it would be impossible to prove
that the partythe clientwas aware of a court
order if all you did was mail it to the attorney.
So, when you have a court order that you want
to be able to enforce by having the judge punish
disobedience with jail or a fine, you need to have a
process server make personal service on the person
to whom the order is directed. Such situations are
commonplace in, for example, divorce cases.
What about more modern methods of communication, such as faxing or electronic mail? Unfortunately, current court rules have not, on the whole,
kept up with the explosion of technological advances. You are perfectly free to send a paper to an
opposing attorney by fax or e-mail. Modern law offices use these technologies routinely. Faxing and emailing do not constitute valid service under FRCP,
Rule 5, however, so you would still have to mail or
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SIDEBAR
Notices
Very often during the course of a lawsuit, a
party needs to be sure that some event has been
brought to the attention of other parties and/or
made a part of the court record. This is routinely
done via a court paper called a notice.
Suppose, for one example, that the court has
ordered Park Hotels Group to turn over Banbury
Park Hotels telephone record for the night of Shannons stay. The hotels attorney, Gail Stoddard,
complies with the courts order, but wants to be
sure that she can prove that she did so. How? She
files a notice (and, of course, serves copies of the
notice on all the opposing attorneys).
[Caption]
Notice is hereby given that defendant Park
Hotels Group has delivered to plaintiff Shannon
Martin the telephone records specified in the
Courts order dated January 2, 2000.
[Date, signature lines, mailing certificate]
ready seen, in Workshop 4, how to include a certificate of service in the formal skeleton of a court paper.
Now, when we file the paper, with the certificate of
service attached, there will be something in the court
file to show when and how we served the paper.1
Your Local Notes
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1
A skeptic might object that the certificate does not
prove that we served the paper, it merely proves that we
said we did! And, in fact, though clearly unethical, it is
not unheard of for an attorney to back date a certificate of service so that a paper appears to have been
mailed before some deadline. Fortunately, the system
works well enough most of the time, and no one has
thought of a better way. One may hope that such opportunities for cheating will disappear once electronic filing
becomes universal, because electronic mail systems can
automatically keep an accurate record of what was sent
to whom and when.
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Setting Deadlines:
Step-by-Step Instructions
Deadlines arise in two main ways: (1) The court expressly orders you to do something by a certain
date or (2) an opposing party serves a paper on you
and the rules of procedure require you to respond to
it within a certain amount of time. Determining the
first kind of deadline is easy because no computation is required, the deadline date is set by the
court. Our step-by-step instructions, therefore, are
concerned only with the second kind.
You might suppose that response deadlines
would also be easy to compute. All you have to do is
count some number of dayssurely this is not
rocket science?
In fact, computing deadlines should not be difficult if you approach it in a systematic waybut,
never forget, litigation is a contest among adversaries, and if a mistake can be taken advantage of, it
will be. And yes, computing a deadline is a matter of
counting days, but how many days, exactly? What
day do you start counting from? Do you count weekends? What if the deadline falls on, say, Christmas?
Some of these questions are answered by the rules
of procedure; the answers to others depend on local
rules, case law, and sometimes merely local custom.
Step 1
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Step 2
Having decided that a particular court paper requires a response, the next step is to determine how
much time is allowed. For certain types of responses (especially discovery responses) the response times are prescribed by the rules of procedure. For others, however (e.g., responses to
motions) local practice, as set forth in the local
rules or as dictated by local custom or by a particular judges preferences, is usually controlling.
Here are some typical time limits for common
types of responses (your instructor will inform you
of the corresponding time periods for the courts of
your locality):
Step 3
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Step 4
Now we have a starting date and we know the allowed time period. Surely, now, all that remains is a
simple matter of counting days, right? The answer
is it depends. FRCP, Rule 6, sets out the rules for
counting the days, and it adds a few complexities of
its own. Here are the main rules:
The first day does not count. We begin counting on the day after the date of service. FRCP,
Rule 6(a), tells us that the day of the act . . .
from which the designated period of time begins to runhere, the date that the paper we
are responding to was servedshall not be
included.
Example: A complaint is served on March 1,
and the rules allow us 20 days in which to file an
answer. In counting the 20 days, March 1 is day 0 in
our count, day 1 is March 2, day 2 is March 3, etc.
The last day does count. The last day of the period we are counting is included; see FRCP,
Rule 6(a).
Example: We are counting a 20-day period
beginning on March 1. As before, day 1 is March
2, day 2 is March 3 (we will let you count days 3
through 19 on your own), and day 20 is March 21.
Because the last day does count, the deadline
falls on March 21.
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A deadline may not fall on a weekend or holiday. It would be meaningless to make responses due on days when the clerks office
is not open. Therefore, FRCP, Rule 6(a), provides that if the last day of our count falls on
a Saturday, Sunday, or legal holiday, the deadline shifts to the next day that is not a Saturday, Sunday, or legal holiday.
Example: A complaint is served on our client on
June 12, a Sunday. The rules allow us 20 days in
which to file an answer. July 2, a Saturday, is day
20 (you should by now have no trouble verifying
this for yourself). Because day 20 is a Saturday,
the deadline shifts. The deadline cannot fall on
the next day, July 3, because it is a Sunday. Nor
can it fall on the next day, Monday, July 4, because
July 4 is a national holiday. Therefore, the answer
must be filed by Tuesday, July 5, which is the first
day following the computed deadline that is not a
Saturday, Sunday, or legal holiday.
With these rules, we should have no difficulty computing deadline dates in most situations. In the
rare situation for which FRCP, Rule 6, gives no
clear answer, do not guessconsult your supervising attorney.
Your Local Notes
_________________________________________________
_________________________________________________
Step 5
Deadlines are a routine part of the landscape in a litigation practice, and every litigator or litigation
paralegal must learn to cope with them. Some are
easy to meet, some difficult, and a few are impossible. Sometimes, a given task will present the uneasy
choice between doing a rushed, imperfect job or taking the time to do it right but missing the deadline.
There are essentially three options for dealing
with an unworkable deadline: (1) Prepare the best
response you can in the time allotted, working
nights and weekends if necessary, file it on time,
and live with its flaws, whatever they may be;
(2) ask the opposing lawyer for an extension of the
deadline; or (3) file a motion asking the court to extend the deadline.
Each of these options has a cost associated
with it. For choice 1, the drawback is the risk that
rushing will cause mistakes. For choice 2, the cost
is that, having received an extension, you will be expected to reciprocate when the opposing lawyer
needs one, perhaps in a situation in which it would
have been to your clients advantage to refuse.
Choice 3 entails preparing and filing a motion,
which takes time and costs money, and risks annoying the judge (judges hate refereeing trivial
scheduling disputes).
The point that we wish to emphasize is that the
cost of choices 2 and 3 goes up as the deadline gets
closer. If we decide that we need an extension and we
act early, we can always fall back on choice 1 if opposing counsel is too demanding, and we can file a
motion for an extension if opposing counsel refuses
our request. If we wait until the day before the response is due, we are at opposing counsels mercy;
as a practical matter, it is very difficult or impossible
to prepare, file, and get a ruling on a motion for extension if we only have one day in which to do it.
Therefore, we include as one of the steps in evaluating the deadline for a given response that you
should quickly outline the work that will be required.
Make a list of the major tasks and subtasks, and be
sure to list all of the itemssignatures, documents,
affidavits, attachmentsthat you will need to obtain
from others. Make a tentative schedule and consider
carefully whether it is workable. If you conclude that
more time will be needed, now is the time to tell your
supervising attorney, so that he can contact opposing counsel for an extension and, if necessary, file a
motion asking the court for an extension.
A contact with opposing counsel is also warranted if you conclude that the deadline date is uncertain or ambiguous for some reason. It is better to
agree on a response date with opposing counsel than
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SIDEBAR
Stipulations
A stipulation is an agreement between attorneys. When reduced to writing, it takes the form of
a court paper, with appropriate caption and formal parts (see Workshop 4), which is filed with the
clerk. In some courts, it is sufficient merely to file the
stipulation; in others, a court order approving the
terms of the stipulation is submitted. Figure W71
shows a sample of a stipulation.
Step 6
_________________________________________________
_________________________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
ARTHUR COLLINS and JANE DOE COLLINS,
)
husband and wife; PARK HOTELS GROUP,
)
INC., a Delaware corporation;
)
)
Defendants.
)
_______________________________________________ )
Plaintiff and Defendant Park Hotels Group, Inc. hereby stipulate that Plaintiff shall have until
August 19, 2000, to file a response to Defendants motion for Summary Judgment and that
Defendant shall have until September 19, 2000, to file a reply.
RESPECTFULLY SUBMITTED this ____ day of July, 2000.
CRANDALL, ELKINS & MAJOR
Gail Stoddard
Attorney for Defendant
Park Hotels Group, Inc.
Allen Porter
Attorneys for plaintiff
(Certificate of Mailing)
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the office. If not, you must take steps to see that they
are entered. All response deadlines, deadlines for filing papers with the court, and other court-related
deadlines must get into the central calendareven
ones that you have entered in your own calendar and
feel that you have well under control.
Why? One of the things that a proper central calendaring system does is generate daily reports for
each attorney and paralegal in the office, showing
the upcoming deadlines for all matters for which she
is responsible, including projects assigned to subordinates. This provides a fail-safe mechanism in case
an attorney or paralegal becomes ill or incapacitated, or simply drops the ball. In such case, the next
person up the ladder of authority will automatically
be made aware of any pending deadlines.
It is also imperative that every litigation paralegal keep a personal calendar. There are simply too
many time-critical events in litigation to allow reliance on memory alone, and some of these events
will be of a type (appointments with witnesses,
progress checks for assigned tasks, etc.) not appropriate for the central office calendar. It goes without
saying that all deadlines for projects assigned to you
should be entered in your own calendar, even though
they are already entered in the office calendar.
Your Local Notes
_________________________________________________
_________________________________________________
Setting Deadlines:
Learning by Example
To see how FRCP, Rules 5 and 6, work in practice, let
us consider the situation that arises when Gail Stoddard files her motion for summary judgment on behalf of Park Hotels Group.
Even though the motion is really aimed at plaintiff (Shannon), Ms. Stoddard must serve it on all parties; see FRCP, Rule 5 ( . . . every written motion . . .
shall be served on each of the parties. . . .). She could
do this either by having a messenger hand deliver a
copy to the offices of each of the opposing attorneys
or by mailing copies to each attorney. Since Dr.
Collinss attorney is in another state, she would likely
serve Dr. Collinss copy by mailing it to Roger Yarborough. Allen Porters office is nearby, so she might
consider having the motion hand delivered to him.
We will assume that Gail Stoddard files the motion
for summary judgment with the clerk of the court on
July 1, a Monday, and mails it to Allen Porter and Roger
Yarborough the same day. When Allen Porter receives
SIDEBAR
Your Opponents Deadlines
A good docketing system keeps track of not just
your own deadlines, but those of your opponents.
When you serve a paper requiring a response on
some opponent, you should compute the due date
for the opponents response and calendar it. In this
way, you will be prepared to take appropriate action if you do not receive opponents filings when
they are due.
What is appropriate action? If an answer is not
filed when due, entering a default is a possibility.
When discovery responses are not filed, a motion to
compel may be in order. However, under modern
rules of procedure, with their emphasis on deciding
cases on the merits, you will almost certainly be required at least to attempt to contact opposing
counsel before entering defaults or filing motions.
Moreover, as already noted, it is usually impossible
to tell for certain whether an opponent has filed a
paper on time, because of the (typically) long time
that the clerks office takes to get it into the court
file where you can see it.
Therefore, the first step should usually consist
of a phone call or reminder letter by your supervising attorney to opposing counsel, inquiring
whether the anticipated paper has been filed. There
is another reason for inquiring before taking offensive action: Papers can and do get lost in the mail
or, worse, fall off desks and disappear under filing
cabinets. Better to verify with a phone call first,
even at the potential cost of alerting your opponent
to his oversight, than to fire your nukes only to find
that the paper in question has been sitting in the
court file the whole time.
Step 1
whose rules are not untypical of those in other district courts, we might ask ourselves whether the local rules have anything to say about what happens
if we fail to respond to a motion for summary judgment. Indeed they do! Rule 1.10(i) states . . . if the
opposing party does not serve and file the required
answering memoranda . . . such non-compliance
may be deemed a consent to the . . . granting of the
motion. . . .
In fact, as a practical rule of thumb, if you do not
file a response to a motionany motionthe court
is likely to assume that you do not object and rule
accordingly. Therefore, we would not dream of letting any motion go by without a response, unless the
motion is one that we do not mind having the court
grant (and even then the civilized thing to do is to
file a response stating that we have no objection).
Step 2
Step 3
Our hypothetical assumes that Gail Stoddards motion was served by mail on Monday, July 1. FRCP,
Rule 5(b), provides that service by mail is complete
upon mailing. Because the rule quoted in Step 2 requires us to respond within 30 days after service,
and FRCP, Rule 6(a), provides that we do not count
the day from which the time period begins to run
(here, July 1), our count begins with day 1 on Tuesday, July 2.
Step 4
Applying the rules described under Step 4, Wednesday, July 3, is day 2. Thursday, July 4, is a federal
holiday; however, the time period we are counting
(30 days) is longer than 11 days, so intermediate
holidays and weekends are counted. Therefore,
Thursday, July 4, is day 3. If we continue counting in
this fashion, we will find that day 30 is July 31, a
Wednesday. However, FRCP, Rule 6(e), gives us 3 additional days because the motion was served on us
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by mail. Three more days takes us to Saturday, August 3. Under FRCP, Rule 6(a), the deadline may not
fall on a weekend, so our response is due the following Monday, August 5.
Step 5
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Step 6
Now the firms central calendar needs to be updated to reflect the extended deadline date. Because the extension is not effective until the court
approves the stipulation, the central calendar entry
will not be changed until that has occurred. Then it
is the docketing clerk who will make the change, not
Chuck himselfin most law firms, authority to
make changes to the central calendar is tightly restricted, for obvious reasons.
Setting Deadlines:
Learning by Doing
EXERCISES
In completing these exercises, you should following
the step-by-step formula described in this workshop.
1. Obtain a copy of the local rules for the U.S district court having jurisdiction over your locality. Review them and note any rules that affect
filing and service of court papers, allowed response times, extensions, and stipulations.
2. Obtain a copy of the local rules for the superior
court or other state court in which civil lawsuits would be filed in your locality. Review
them and note any rules that affect filing and
service of court papers, allowed response
times, extensions, and stipulations.
3. Assume that Shannons complaint is filed in the
U.S. district court having jurisdiction over your
locality. Her summons and complaint are served
on defendant Park Hotels Group, Inc., on February 1, a Tuesday, by delivering a copy to Park Hotels Groups designated agent, at its office in your
city. What is the deadline for Park Hotels Group
to file an answer or other responsive pleading?
4. Same facts as Exercise 3, except that Shannons
complaint is filed in the superior court or other
state court in which civil lawsuits would be
filed in your locality. What is the deadline for
Park Hotels Group to file an answer or other responsive pleading? Does it differ from your answer to Exercise 3? If so, how and why?
5. Assume that Shannons lawsuit is pending in the
U.S. district court having jurisdiction over your
locality. Allen Porter files a motion to compel
asking the judge to order Park Hotels Group to
answer certain interrogatories that Park Hotels
Group has refused to answer. The motion is filed
on November 1, a Thursday, and a copy is hand
delivered by messenger to the office of Gail Stoddard, attorney for defendant Park Hotels Group,
on Friday, November 2. What is the deadline for
Park Hotels Groups response to the motion?
6. Same facts as Exercise 5, except that Shannons
lawsuit is pending in the superior court or other
state court in which civil lawsuits would be filed
in your locality. What is the deadline for Park
Hotels Groups response? Does it differ from
your answer to Exercise 5? If so, how and why?
7. Assume that Shannons lawsuit is pending in the
U.S. district court having jurisdiction over your
locality. On behalf of defendant Dr. Collins,
Roger Yarborough submits written interrogatories to be answered by Shannon Martin. He
serves the interrogatories by mailing them to
Allen Porter, whose office is in your locality. He
deposits them in the mail on April 5, a Saturday,
and Allen Porters office receives them in the
morning mail on Tuesday, April 8. What is the
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is the deadline for Gail Stoddard to file a response on behalf of Park Hotels Group if she decides to do so?
10. Same facts as Exercise 9, except that Shannons
lawsuit is pending in the superior court or
other state court in which civil lawsuits would
be filed in your locality. What is the deadline for
Allen Porter to file a response on behalf of
Shannon Martin? What is the deadline for Gail
Stoddard to file a response on behalf of Park
Hotels Group if she decides to do so?
11. In Exercise 9, Porter finds that he needs more
time in which to prepare a response, so he calls
Roger Yarborough to ask for an extension.
Roger Yarborough agrees that Porter may have
an additional 21 days in which to respond, and
that Yarborough will then have 30 days in
which to file and serve a reply. Porter assigns
you to prepare the necessary paperwork to
document the extension, which you should do
in accordance with the local rules of your U.S.
district court and in accordance with customary practice in your locality.
PRACTICE POINTERS
Tickler Systems
The importance of adhering to court dates and deadlines established by
the procedural rules cannot be overestimated. Failure to meet these deadlines
can potentially result in the dismissal of a case or a loss of a claim, thereby
causing, at best, a serious breach of confidence with the client and, at worst,
a malpractice claim. Therefore, attorneys and legal assistants must devise effective ways of ensuring that no deadline is overlooked.
Attorneys have developed various types of tickler systems that either
manually or electronically alert members of the legal team to upcoming deadlines. One simple manual form requires you to note the clients name, the file
number, the action to be completed, and the date it is to be completed on a
tickler form. You then choose at least three dates on which you want to be reminded about this task and on each of those dates, the employee in charge of
the tickler system gives you the reminder. This gives you three distinct opportunities to begin working on the required task.
Scheduling reminders well in advance of the deadline helps ensure that
you have ample time to complete the necessary work and accommodates for
emergencies that arise that preclude the initial completion of a task. In other
words, tickler systems can prevent crisis management and can encourage the
avoidance of last minute scrambling to meet court deadlines. Computerized
systems can also be set up to give multiple warnings and can even be programmed to flash upcoming deadlines on your computer screen.
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TECHNO TIP
Commercial calendaring programs are
now available that seem to do it all. Reminders (ticklers) can be set at a variety
of dates prior to the deadline to remind
you of the upcoming response. Be very
careful when using any piece of software. Never leave it to the program to
determine a deadline. Do the computing yourself, without guidance from the
program, and make sure the software
got it right as well.
FORMS FILE
Summarize the rules pertaining to the computation of deadlines for
responses to parties served on you by opponents. Include the time period
that applies, what day to begin counting from, and what days to exclude.
KEY TERMS
Deadline
Docket
Stipulation
Drafting Pleadings:
Responsive Pleadings
WORKSHOP
We now shift our point of view and examine the beginning stages of a lawsuit from the standpoint of
the defendant. If you are named as a defendant in a
lawsuit, you will quite likely first become aware of it
when the summons and complaint are served on
you. You are going about your normal daily business
one day, and suddenly some stranger walks up to
you and hands you a stack of papers. Congratulations! Youre a defendant! Now what?
One next step would be to file an answer, in preparation to defend the suit on the merits, and that is
what you will learn to do in this workshop. When we
refer to the merits of plaintiffs case, we are concerned
with whether (1) the acts and events plaintiff as alleged in the complaint are legally sufficient to entitle
plaintiff to win a judgment against you, and
(2) whether plaintiff can produce evidence sufficient to
prove that those acts and events actually happened.
ALTERNATIVES TO FILING
AN ANSWER
2.
File for bankruptcy. If you qualify to file for bankruptcy, you can not only keep all of your exempt
property, you can get a discharge in bankruptcy,
which is a court order by the bankruptcy court
wiping out all of your debts. Not only that, when
you first file the bankruptcy proceeding, all lawsuits against you are immediately and automatically stayed. (An automatic stay is an order by
the bankruptcy court ordering anyone suing you
to refrain from proceeding further with their
suit.) Filing for bankruptcy is not free (the cost of
a typical consumer bankruptcy is in the ballpark
of $1,000 including lawyer fees and court filing
fees) but it is a good deal less expensive than defending a lawsuit.
The bottom line is that unless the person
being sued is either wealthier than the average
middle-class American wage earner or is covered by insurance, there may be little to be
gained and much to be lost by filing an answer
and defending.
3.
Filing an answer is not, however, the only option. Before we immerse ourselves in the details of answer
drafting, let us acquaint ourselves with some of the
other possibilities, so that you can better understand the thought process that a litigator must go
through when a client is sued. Here are some of your
other options as a defendant:
1.
Do nothing, default. You could decide to do nothingsimply ignore the suit. But if you fail to file
an answer or other responsive pleading, sooner
or later the person suing you will almost certainly obtain a judgment by default for the full
amount he is suing for.
Would that be a bad outcome? Not necessarily. Remember that judgments are not selfexecuting (see Chapter 5). Suppose you have
no assets from which a judgment could be collected. Are there people in that situation? Yes,
many more than you might suppose. The laws
of most states do not allow the winner of a judgment to grab everything the loser owns, leaving
her destitute. The judgment debtorthe loser
of the suitis entitled by law to keep certain assets that are exempt from execution. Exempt
property means an asset that the law does not
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5.
receiving the complaint is to contact plaintiffs attorney and explore whether there is some way to
make the suit go away. (Experience teaches that
most lawsuit settlements occur either soon after
the complaint is filed, or not until the case is
about to go to trial. Can you see why?)
A settlement may simply involve defendant
paying plaintiff some money to drop the case,
or it may require some much more complicated
deal between plaintiff and defendant. Either
way, the parties avoid the risk, expense, and aggravation of litigating on the merits.
6. Move to Dismiss for Failure to State a Claim.
Suppose plaintiff sues defendant for doing
something that is not actionable, something
that the law simply does not regard as illegal.
An example will make this clearer: Wanda
Walker is out taking her daily stroll one day, accompanied by her best friend Betty. When they
finish their walk, Wanda continues down the
sidewalk toward her home, while Betty starts
across the street in another direction. Suddenly, a pickup truck, driven by Dave Drinker,
careens through a red light, striking Betty and
killing her in full view of Wanda. Wanda is understandably distraught and depressed, and
would like to sue. But, according to the law of
torts in every state of which the authors are
aware, the law does not make someone who
causes an accident liable to others who merely
witness the accident, if they are not physically
injured in some way, or at least threatened
with injury.
Suppose Wanda does sue. Must the case go
all the way through a trial? No. FRCP, Rule
12(b)(6), allows Daves attorney to file a motion
to dismiss for failure to state a claim on which
relief can be granted. In effect, Daves attorney
is saying to the court, Even if everything happened exactly the way it says in Wandas complaint, Wanda is still not entitled to judgment.
The allegations of Wandas complaint, even if
every one of them is true, do not describe
something that the law regards as actionable.
Motions to dismiss of this kind bear a close
relationship to motions for summary judgment.
We will take up both in much more detail in
Workshop 14. For our present purposes, it suffices merely to be aware that the option exists
to ask the court to decide, before the answer is
filed, whether the allegations of the complaint,
if taken as true, describe conduct that the law
allows people to sue for.
Must defendant move to dismiss in order to
raise the defense of failure to state a claim? No,
STRATEGIC CONSIDERATIONS
AND THE ROLE OF THE PARALEGAL
Defendants objectives in a lawsuit are (usually)
several:
1.
2.
3.
To keep the costs of the suit (legal fees, discovery costs, etc.) to a minimum.
339
that is purely a side effect, of course! We will consider the ethical implications of delaying tactics, as
well as other ethical issues that arise in litigation, in
Workshop 19. The delaying gamethe litigation
equivalent of the four-corner offenseis a tactic
most commonly used by large corporate or government defendants.]
If there are legal issues that, if resolved in defendants favor, would end the case, then a pre-answer
motion under FRCP, Rule 12(b), may be the strategy
of choice.
Finally, if the decision is to seize the bull by the
horns and get on with defending the suit on the
merits, the choice will likely be to prepare and file
an answer.
Advising a client on the strategy to follow in defending a lawsuit obviously requires legal judgment
and experience of the highest order, and strategic decisions of this kind must ultimately be made by the responsible attorney. This does not, of course, prevent
paralegals from participating in such decisions, and
most supervising attorneys will willingly explain the
reasons behind a given strategic choice to a paralegal
who demonstrates a desire to learn and understand.
Paralegals are often assigned to draft the papers
to implement the choices made by the supervising
attorney. Highly complex answer drafting of the kind
needed in, for example, commercial litigation, is
usually a task for attorneys, but answer preparation
in cases that do not require a deep understanding of
some specialty area of the law (routine auto accident cases, for example) is very definitely a suitable
assignment for paralegals. The depth with which
you understand the purposes of and reasons behind
the tasks that you are assigned will have a strong influence on how well you do them.
Your Local Notes
_________________________________________________
_________________________________________________
Answer Drafting:
Step-by-Step Instructions
Just as the complaint is the document that defines
the issues that plaintiff intends to present to the
court, the answer is the document that defines the
issues from defendants standpoint. An answer is,
first and foremost, a point-by-point response to the
allegations of the complaint. FRCP, Rule 8(b), requires the answer to admit or deny the averments
of the complaint. In the drafting steps discussed
later, we will see how this is done.
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2.
3.
PREPARATORY STEPS
Step 1
We do not repeat here the details of deadline computation, a subject on which, after completing
Workshop 7, you should now be an expert!
It is worth pointing out, however, that complaints needing to be answered typically arrive on a
defense attorneys desk only after being brought in
by some prospective clientsometimes with only a
day or two left before the answer deadline. The
deadline for filing an answer depends on when and
how the complaint was served, facts of which the
defense attorney has no direct knowledge and
about which clients are notoriously imprecise. The
defense attorneys first job, thereforeand the first
job of an intake paralegal given responsibility for
screening prospective clientsis to nail down the
answer deadline. The importance of doing so cannot be overstated.
Often, the easiest way to solve the deadline
problem is simply to make an agreement with plaintiffs attorney that the answer will be due on an
agreed date. In many jurisdictions, extensions of
time to file answers are requested and given routinely. The attorneys involved must, of course, take
care to satisfy any formalities required by local
rules in documenting the extension. A caveat: A
paralegal should not initiate calls to opposing attorneys unless her supervising attorney has specifically authorized it.
Needless to say, once the deadline date has
been established, it must be entered in the firms
central calendar and in the calendars of the responsible attorney and paralegal.
Step 2
It is actually possible to draft a reasonably workable answer to the typical complaint even with relatively little knowledge of the facts of the case.
Plaintiff has the burden of telling a complete and
consistent story with sufficient detail to establish a
legally recognized cause of action. Defendant is not
required to provide a counterstory, and is free to
file an answer simply denying everything in the
complaint and alleging a generic set of affirmative
defenses. This is obviously the easiest way to prepare an answer, and avoids the hazard of accidentally admitting some fact that will later turn out to
be damaging.
We do not recommend this approach. In a lawsuit, the attorney who is first to fully grasp the facts
of the case and the elements of each cause of action
will have numerous opportunities to steal the ball
from an opponent who is operating in the dark. This
is especially true in the growing number of jurisdictions that have adopted rules requiring each side to
file disclosure statements early in the case.
How should a defense attorney or paralegal approach the problem of factual investigation? The
first step, of course, is to obtain as much information as possible from the client. Here are some examples of the kinds of things the defense attorney
or paralegal should obtain from the client:
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SIDEBAR
Multiple Parties: Who Are
You Answering For?
One of the questions that a defense attorney or
paralegal must address at the outset is Who
would I be representing? It is very common for a
lawsuit to name more than one defendant, and for
the needs of various defendants to conflict with
each other. Accordingly, it is essential that the attorney not only run the usual new-client conflict
check to ensure that the representation does not
create a conflict of interest with existing clients of
the firm, the attorney must also ensure that he does
not create a conflict by agreeing to represent defendants who will potentially need to make crossclaims against each other. Multiple-defendant lawsuits can pose knotty ethical problems, which we
will visit in Workshop 19.
Often, your firm may decide to represent defendants A and B, whereas defendants C through
Z are represented by other attorneys. Then who
files the answer? Typically, each attorney files a
separate answer for the defendants she is representing. Instead of being titled simply Answer in
the caption, the document will be titled Separate
Answer of Defendants A and B. In writing the answer, the phrase these answering defendants
will be used instead of simply defendants (which
would imply all defendants). Example: These answering defendants deny the allegations of paragraph 5, instead of defendants deny the allegations of paragraph 5.
Step 3
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You bring Al into the suit yourself, via a thirdparty claim. A third-party claim is a claim that you
make in your answer against someone who is not
already named as a plaintiff or defendant in the
complaint.
As to the third-party claim, you are the thirdparty plaintiff, and the person you are bringing into
the suitCousin Al, in this caseis the third-party
defendant. The third-party claim must, of course,
be served on the third-party defendant in the same
way that a complaint would be served, and the
third-party defendant must file an answer to it.
The form of a third-party claim is similar to that
of a claim in a complaint. It must allege all of the required elements of some cause of action, and include an appropriate prayer for relief. Typically, the
third-party claim is tacked on at the end of the answer. We have purposely omitted any third-party
claim from the example answer provided later in
this workshop, so as to avoid overly complicating
our introduction to answer drafting. At this stage of
your paralegal education, we simply want you to be
aware that mechanisms do exist for adding new parties to the suityou are not stuck with plaintiffs
choice of defendants.
Step 4
2.
_________________________________________________
3.
_________________________________________________
SIDEBAR
Indispensable Parties
Sometimes a claim needs to be made against
someone who is not named in the complaint, but it
is impossible to bring that person into the suit. What
if, for example, Cousin Al is now living somewhere in
Brazil, address unknown, and you have no way to
serve process on him. In such situations, the judge
must decide whether the person to be added is an indispensable party; that is, whether, in equity and
good conscience, a just result cannot be achieved
without (in our example) Als presence in the suit.
If the judge deems Cousin Al an indispensable
party, the suit is dismissed; otherwise, the suit simply continues against you, without benefit of
Cousin Als presence. (How the judge decides this is
outlined in FRCP, Rule 19, as supplemented by a
good deal of case law. In our example, Al would not
be considered an indispensable party. Sorry, but a
trained paralegal such as yourself should know better than to act as a cosigner!)
Step 5
Step 7
Step 8
_________________________________________________
_________________________________________________
DRAFTING STEPS
Prepare the Caption
Step 6
343
Respond to Allegations
of Complaint
2.
3.
4.
344
Example 1: A Simple AdmissionIn the example complaint that we presented in Workshop 5 (see
Figure W5 1), paragraph 1 alleged:
1. Plaintiff Shannon Martin is a resident of
Maricopa County, Arizona.
Suppose we represent defendant Park Hotels
Group, Inc. How would we answer this paragraph?
First, if we are doing our job properly, we would
find out whether Shannon Martin is indeed a resident of Maricopa County, Arizona. (Why? For one
thing, if she turned out not to be an Arizona resident, the U.S. district courts jurisdiction might be
affected. We reiterate the importance of checking
every fact.) Suppose we conclude that, yes, paragraph 1 is true, and we decide to admit it. (Should
we? See sidebar.) What language do we use to express our admission? The following is customary:
1. Answering paragraph 1, admits the
allegations thereof.
Who admits the allegations thereof? The preamble
supplies the subject of the sentence: defendant Park
Hotels Group. Where appropriate (see Example 3)
we will specify.
SIDEBAR
To Deny or Not to Deny?:
That Is the Question
What do we do with facts that we are sure
plaintiff can prove?
This question brings up one of the ways in which
the styles of litigators differ. Some litigators prefer an
aggressive styledeny everything! Make plaintiff
prove it! Defendant has (in theory) the right to make
plaintiff prove every single fact, however obvious,
and some litigators would say Why give anything
away? After all, if we make plaintiff spend energy
and money proving the obvious, plaintiff will have
that much less energy and money to spend proving
facts that might really hurt our case!
Other litigators would prefer to concede the
facts that the opponent will clearly be able to prove
anyway, and save their ammunition for the truly contested issues. Our own preference tends toward the
latter view, in part because excessive contentiousness
over trivia has a way of annoying judges and juries.
Deciding where along the scale of provability
the line should be drawn is a judgment call, and
not always an easy one. Most litigators would
choose to err on the side of cautionif there is any
doubt, and especially if the fact is harmful, deny.
Example 6: Admit/Deny Plus Add New AllegationsNow let us try a more challenging example, using paragraph 6 of the example complaint
from Workshop 5. The paragraph we are answering
alleges:
6. At approximately 1:15 A.M. on the morning
of February 6, 1996, plaintiff Shannon Martin was
asleep in her hotel room at the Banbury Park
Hotel. Prior to retiring, plaintiff closed and
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SIDEBAR
Getting Our Own Story Told
You may be wondering where, exactly, is the
part of the answer where we get to tell defendants
side of the story? Unfortunately, the rules, as usually interpreted, do not allow us a General Allegations section of the kind that we used in the complaint (unless we assert counterclaims, in which
case we would write the counterclaim section in
much the same way as if we were writing a complaint). In the answer proper, we are limited to responding to the allegations made by plaintiff.
How, then, do we communicate our clients version of the facts?: Mainly, by including explanatory
allegations of the kind used in Example 6. One
word of caution: An answer is supposed to give our
clients version of the facts, not present evidence.
We might be tempted, for example, to mention that
the police investigation showed that the key in Dr.
Collinss possession was the key to his own room.
Should we? How far one should go down this road
is a judgment call, and varies with local custom.
Your instructor will advise you on the level of advocacy considered proper in your locality.
346
claiming self-defense, without having to look elsewhere in the file for the facts:
Step 9
Step 10
Include Specific
Affirmative Defenses
ExampleHere are two paragraphs alleging selfdefense as they might appear in Dr. Collinss answer. (See Workshop 1 for the elements of the affirmative defense of self-defense.) Notice how we
begin by taking the opportunity to tell part of our
story, so that anyone (i.e., the judge) skimming our
answer will immediately understand why we are
Step 11
There is one defense that we include in every answer: failure to state a claim. Why? Actually, it is not
necessary to do so for legal reasonsthe defense is
not waived if we leave it out; see FRCP, Rule 12(h)(2).
It is, however, customary. A standard boilerplate
paragraph suffices:
15. Plaintiffs complaint fails to state a claim
upon which relief can be granted.
There are other defenses that can be lost if omitted from the answer. FRCP, Rule 8(c), requires an answer to set forth affirmatively any of the defenses
listed in the rule.
It is wise to use FRCP, Rule 8(c), as a checklist
of common defenses when deciding which defenses to raise in the answer; any Rule 8(c) defenses that have particular applicability to our
case should be alleged separately, with enough
facts to explain how they apply. What about those
defenses that do not seem germane? Most litigators, probably out of an excess of caution, include
Step 12
347
Step 13
Plead Counterclaims
and Cross-Claims
348
Step 14
CONCLUDING STEPS
Our drafting complete, we print our answer (or
send it to word processing to be typed). When it is
ready, we begin preparing to send it to the opposing
parties.
SIDEBAR
Compulsory Counterclaims
What if Dr. Collins prefers to press his cause of
action against Shannon for battery by filing a separate suit against Shannon, instead of using it as a
counterclaim in her suit? May he do so?
FRCP, Rule 13, is the rule that governs counterclaims and cross-claims. If plaintiffs cause of action
against defendant and defendants cause of action
against plaintiff both arise from the same factual
setting, they are said to be transactional; that is,
in the words of FRCP, Rule 13, they arise from the
same transaction or occurrence.
Any transactional claims that defendant has
are considered compulsory counterclaims, and will
be lost if not raised in the existing lawsuit. Dr.
Collinss battery claim is, of course, transactional
because it arises from the same fact background as
Shannons claims. Therefore, it is a compulsory
counterclaim, and Dr. Collins must litigate it as a
counterclaim in this lawsuit. If he fails to do so his
claim will be barred forever when this lawsuit is over.
SIDEBAR
Replies to Counterclaims
If there are no counterclaims or cross-claims,
then the pleading process is over when the answer
is filed. Even if plaintiff disagrees with the things
defendant says in the answer (as most plaintiffs
do), plaintiff does not get to file a rebuttal. According to FRCP, Rule 7(a), there shall be a complaint and an answer, and thats allno other
pleading is allowed.
If, however, defendant has asserted a counterclaim, FRCP, Rule 7(a), requires plaintiff to file a reply to it. The reply is like a mini-answer directed
at the counterclaim. It is written in exactly the same
way that an answer would be written, admitting
and denying the paragraphs of the counterclaim.
(Only the counterclaimthe reply does not attack
the rest of the answer.)
Drafting a counterclaim is like drafting a complaint by the defendant against the plaintiff; drafting a reply is like drafting an answer to it. If you
know how to draft an answer, you know how to
draft a reply to a counterclaim!
Step 15
Step 2
Step 16
Answer Drafting:
Learning by Example
We will now use what we have learned to draft an
answer on behalf of our hypothetical defendant,
Park Hotels Group, Inc.
PREPARATORY STEPS
Step 1
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Step 3
Who else might Park Hotels Group consider bringing into the lawsuit? Certainly, they want Dr. Collins
present, but plaintiff has already named him as a
party. Who else? Investigation will be required.
Possibilities include the manufacturer of the door
lock (it might be defective; remember, Park Hotels
likely does not know about Arnie Trevayne switching the keys); perhaps the contractor who installed
it (it might have been installed wrong); conceivably
the desk clerk, Arnie Trevayne (but not very likely,
since Park Hotels will not want to risk losing control of him by having him represented by some
other attorney). Unfortunately for Park Hotels, the
chances of finding someone else to blame Shannons injuries on seem scarce in the circumstances
of this hypo.
Step 4
350
Step 5
In a typical insurance defense firm, research assignments are given to new attorneys in their first
year or two of practice. One of Crandall, Elkins associate attorneys will be assigned to research plaintiffs claims and any defenses that suggest themselves, and will write a memorandum summarizing
his findings.
DRAFTING STEPS
The finished product is shown in Figure W81. Park
Hotels Group, Inc., has no obvious counterclaim to
assert. A cross-claim for indemnification against
Dr. Collins might be included, claiming, in effect,
that if Park Hotels Group is found liable to plaintiff,
then Dr. Collins is liable to reimburse Park Hotels
Group since he is the one who actually injured
plaintiff. In the interest of not overly complicating
this introductory discussion, we elect not to include such a cross-claim.
)
)
)
Plaintiff,
)
)
vs.
)
)
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware
)
corporation;
)
)
Defendants.
)
_______________________________________________ )
Defendant Park Hotels Group, Inc., for its separate answer to plaintiffs complaint, admits, denies,
and alleges as follows:
1. Answering paragraphs 1 and 2, defendant Park Hotels Group, Inc. is without knowledge or
information sufficient to form a belief as to the truth of the allegations of said paragraphs, and
therefore denies them.
2. Answering paragraph 3, admits that it is a corporation organized and existing under the laws
of the state of Delaware, admits that it does business in the state of Nevada, and denies that plaintiffs
claim arose from the business done by it.
3. Answering paragraph 4, defendant Park Hotels Group, Inc. is without knowledge or
information sufficient to form a belief as to the truth of the allegations of said paragraph, and therefore
denies them.
4. Answering paragraph 5, admits the allegations thereof.
5. Answering paragraph 6, denies that defendant Arthur Collins used a key provided by Banbury
Park Hotel to enter plaintiffs hotel room, and alleges that the only key provided by Banbury Park Hotel
to defendant Arthur Collins was the key to his own room, and that said key was not capable of being
used to unlock the door to plaintiffs hotel room. Defendant Park Hotels Group, Inc. is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations of said
paragraph, and therefore denies them.
351
Gail Stoddard
Attorney for defendant
Park Hotels Group, Inc.
(Certificate of service goes heresee Workshop 4 for details.)
CONCLUDING STEPS
The answer now complete, Gail Stoddard checks it
for accuracy and faxes it to Park Hotels Group
management for their review. When any necessary
corrections have been completed, she signs the
answer and turns it over to her legal secretary,
who arranges for filing and delivery to the opposing attorneys.
Answer Drafting:
Learning by Doing
You have seen how Park Hotels Group might answer
Shannons complaint; now it is your turn. Assume
that you are a paralegal in the office of Roger
Yarborough, who represents defendant Collins. He
hands you a copy of Shannons complaint (see
Workshop 5) and assigns you to draft an answer on
behalf of Dr. Collins.
352
EXERCISE
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop. You may skip Step 1 because we covered
deadline problems separately in Workshop 7. For
PRACTICE POINTERS
Working with Clients
Not infrequently, clients become very distraught during the litigation
process. One of the greatest assets a legal assistant can bring to a law firm is
an ability to manage difficult or emotionally volatile clients. Attorneys often
have neither the time, desire, nor ability to handle such clients and gladly defer to someone with superior human relations skills.
Particularly in a defense practice where attorneys have less control over
the litigation process than do their plaintiff counterparts, attorneys often have
all they can manage to adhere to deadlines and complete their legal work in a
timely basis. They do not have time as well to wrestle with the emotional ups
and downs of their clients. Some attorneys find client relations one of the most
trying and frustrating of their responsibilities and will do everything possible
to insulate themselves from clients. Additionally, clients who find themselves
to be defendants are frustrated and angry at having been sued and expect the
law firm not only to represent them but to be available to answer their concerns and to listen to them as they vent their feelings.
Since the attorney is more often than not unavailable to fulfill this role, the
legal assistant often finds herself serving as the caretaker of the client. Good
client relations often involve going beyond simply answering questions. It is
being there to listen as the clients explain (yet one more time) why they feel
a particular way, why they think they have been wronged, and why they believe the legal system is unjust. It means cultivating the patience that allows
you to take the time to bolster client morale and encourage their perseverance when you would really like to spend that time meeting your own deadlines and tending to other tasks that demand your attention. It means answering client calls promptly even when you know what awaits you on the
other end of that line.
This nonglamorous aspect of being a legal assistant is rarely addressed by
legal textbooks but is an issue of which every practitioner is aware. Mastery
of the art and science of client management is what separates the mediocre
legal assistants from the really great ones and what makes some legal assistants such invaluable assets to their firms. To include yourself among this rarefied category of legal assistants, consider taking human relations and communications courses to begin developing these skills now. As importantly,
seek out those who have a reputation for dealing effectively with others and
find out their secrets. Then begin practicing nowwith family members,
friends, customers, or anyone who challenges your ability to remain calm and
focused. Remember that you are developing a lifelong skill that will serve you
no matter what your profession.
353
TECHNO TIP
Setting up a pleadings page for use with
line numbers is a difficult task. Prior to
the use of computers the law firms
name was set out in the left-hand margin in portrait format on a preprinted
page. Often two thin lines would appear
to the right of the law firms name to
separate the name and address from the
body of the pleading. In many forms,
line numbers, double spaced, would appear just to the left of the two thin lines.
When the information was typed on the
form, the typist lined up the line numbers with the typed information.
With the advent of computers and
word processors the use of preprinted
forms waned. Printers were designed
that could print in portrait and landscape
mode on the same page, at the same
time. Traditionalists wanted to keep the
same look and wanted to print the pleading on plain paper and end up with the
same format as when using preprinted
FORMS FILE
Include samples of the following in your forms notebook:
KEY TERMS
Automatic stay
Compulsory counterclaims
Counterclaimant
Counterdefendant
Cross-claimant
Cross-defendant
Discharge in bankruptcy
Exempt property
Indispensable party
Merits
Transactional
Introduction to the
Discovery Workshops
Discovery refers to a set of procedural tools that we
can use to extract information from unwilling or reluctant sources, including our opponent. What
kinds of information?
Although there is some local variation, the mechanics and procedural paperwork involved in using
these discovery tools is essentially the same in most
American jurisdictions.
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LOCAL VARIATIONS
We have said that the mix of allowed discovery procedures varies greatly by locality. Why would that
be? Surely, at least, the Federal Rules of Civil Procedure make discovery procedure uniform for all U.S.
district courts?
Quite the contrary. When the U.S. Supreme
Court adopted the 1993 amendments, it made them
optional! Each U.S. district court was free to decide
for itself whether to follow all of the changes, some
of them, or none of them. At about the same time,
Congress added to the confusion by passing legislation authorizing District Courts to look for ways to
improve efficiency by experimenting with changes
in their own local rulesan invitation enthusiastically taken up by many district courts. The net result has been that, today, almost no two U.S. District
Courts follow exactly the same discovery rules.
Some have adhered to the old system; others have
completely embraced the new; and a great many operate with some unholy mixture of the two.
SIDEBAR
Mandatory Disclosure Rules:
Blessing or Curse?
Not every litigator is a fan of disclosurebased discovery, and the detractors do have some
valid points to make. Here are a few of the common criticisms:
1. Litigants are naturally tempted to try to hide
evidence that they think will hurt their case. By severely restricting the use of the old discovery tools,
the new rules make it harder to detect such cheating, and the punishment for parties who are
caught hiding the ball is neither certain enough
nor severe enough to have much deterrent effect.
In short, mandatory disclosure rulesor more accurately the limitations on traditional discovery
that accompany themmake the outcome of litigation depend overly much on the ethics and
honesty of ones opponents.
2. Mandatory disclosure rules put lawyers in the
uncomfortable position of having to, in effect,
build an opponents case for her. Disclosure rules
may require a diligent lawyer to reveal evidence
that will lead to new claims or defenses that a
lazy opponent would otherwise never have
thought of. This seems unfair to the client of the
diligent lawyer, who is paying for work that undercuts his own case.
3. Disclosure rules undermine the attorneyclient
privilege. If a client discusses some damaging bit
of evidence with his lawyer, the lawyer has no
choice but to reveal it to the opposing party under the disclosure rules. A client who understands
the system will be motivated not to tell his lawyer
about the bad bits of evidence.
Are mandatory disclosure rules an improvement, or a mistake? What is your opinion?
357
DISCOVERYSEEING
THE BIG PICTURE
In the workshops to follow, we will be zeroing in on
the minutiae of various common discovery tasks.
Before doing so, it is worth reminding ourselves that
our goal in conducting discovery is to improve our
chances of winning the lawsuit. Individual discovery
tasks should continually be evaluated on the basis
of their contribution to that ultimate goal.
Getting maximum advantage from discovery requires planning. Successful litigators do not simply
start shooting out a random stream of discovery requeststhey take the trouble to map out in advance
the information that will be needed and the steps
that can be taken in pursuing it. In Workshop 1, we
advocated the preparation of an issues outline as a
way of organizing your understanding of the claims
and the facts needed to support them. A good place
to start in planning discovery is to go through your
issues outline, element by element, issue by issue,
and decide how you can best prove each required
fact. List all of the facts for which you need more evidence, and decide which discovery procedures
358
Planning
List Basic Facts Using Issue Outline
Decide What to Ask for in Preliminary
Write Letter to
Opposing Counsel
Demanding Missing
Items
File Motion to
Compel Opposing
Party to Turn
over Missing
Items
F
A
C
T
D
A
T
A
B
A
S
E
Based on Updated
Facts, Analyze What
Discovery Still Needs
to Be Done
359
Document Discovery
WORKSHOP
DOCUMENT DISCOVERY
STRATEGY AND GOALS
Ideally, the goal of each partyplaintiff or defendantin document discovery is to assemble a complete set containing every single piece of paper that
could conceivably bear on the case, whether helpful or harmful to our case. We want good documents so that we can use them as evidence to support our case; we want the documents that are
harmful to our case, as well, because if they are
bad for us, they are probably good for our opponent, and we need to be ready to counter them.
Our goal goes far beyond that of merely gathering documents to use as evidence. In fact, many of
the documents we are gathering will never see the
light of day in a courtroom. Our main purpose in
gathering documents is to provide a body of data
that we can use in tracking down other evidence.
Every document was written by someonesomeone
who is a potential witness, if the document seems to
indicate that the author knows something about the
facts at issue in the lawsuit. Documents often refer to
other documents, so even if the document in front of
us is not helpful, the one it refers to may be.
362
quested. Service is usually of the informal kind under FRCP, Rule 5that is, by mail or hand delivery
to the attorney.
In addition to producing the requested documents, a party who receives a request for production
must also file and serve a written response to the request; see FRCP, Rule 34(b). We will look more
closely at the response requirement in Workshop 11.
363
Informal RequestsWe can also sometimes obtain documents in other ways, such as by Freedom
of Information Act requests, by perusing public
records, or simply by asking people for the documents we want. There is an advantage to be gained
by employing such informal methods when possible: We avoid the involvement of opposing lawyers.
Any records we obtain via a FRCP, Rule 34, request
for production will have been thoroughly reviewed
by our opponents attorney before we see them. We
can be sure that no smoking guns will be disclosed
without a fight. Furthermore, a formal Rule 34 request, by spelling out exactly what documents we
want to review, inevitably provides opposing counsel with clues about how our own factual development is progressing.
We must, however, think carefully about how
and from whom we obtain documents by informal
methods. If the document that we seek is a public
record, we are always free to obtain and use it. We
are usually not, however, free to obtain documents
in the possession of an opponent by informal
means. For example, if we are suing a large corporation, the idea might occur to us to go to one of the
companys offices and try to get documents or information from some helpful employee. Rules of legal ethics, however, prohibit lawyersand paralegals working for lawyersfrom communicating
about matters related to the lawsuit with an opposing party who is represented by another lawyer. Depending on the circumstances and on the ethics
rules of the locality, this prohibition may also extend to communications with employees of an opposing party. Therefore, a paralegal should never
contact offices or employees of an opposing party
without first getting the approval of a supervising
attorney.
An attorney may freely contact third-party witnesses as long as they do not have some protected
confidential relationship with an opposing party.
Suppose, for example, we represent the defendant
in an auto accident case and we learn that one of
the witnesses to the accident took photographs of
364
the scene. We are perfectly free to contact that witness and attempt to obtain copies of the photographs, and we have no obligation to tell opposing counsel that we are doing so. We may not,
however, contact plaintiffs doctor on the sly and
try to obtain medical records without opposing
counsels knowledge, since the doctorpatient relationship is a confidential one and medical
records are privileged. To obtain medical records,
we must subpoena them.
Deciding which witnesses may be contacted
and which may not often involves drawing fine legal and ethical lines, and may also involve strategy questions best left up to the attorney in
charge of the case. As a paralegal, you should
never contact third-party witnesses unless your
supervising attorney has expressly authorized
you to do so.
SIDEBAR
The Virtue of Viewing
the Original File
Even though FRCP, Rule 34, requests and subpoenas duces tecum specify a time and place at
which documents are to be produced, it is quite
common to respond simply by mailing photocopies of the documents to the requesting attorney, prior to the date specified. Should we, as representatives of the requesting party, be satisfied
with photocopies?
On a preliminary basis, yes. Photocopies are
admissible in evidence as duplicate originals under Rule 1003 of the Federal Rules of Evidence, so
we do not have to have originals in order to use the
documents in court. Nevertheless, the requesting
party has a right to inspect the original documents,
and should always insist on viewing the originals of
any files containing documents that are crucial to
the issues of the case. Why? The copies that we receive in response to a Rule 34 request or subpoena
are likely to have been made by some overworked
clerical employee, who is given boxes of files with
the instruction Copy these by 5:00 P.M. Inevitably, pages will get stuck together and be
skipped; the backs of pages may be missed; sticky
notes attached to pages may be omitted; the file
folders themselves may have notes written on them
but will not be copied. In short, you cannot be sure
that you have seen everything there is to see unless
you have gone through the original file yourself
and looked at every page.
Document Requests:
Step-by-Step Instructions
PREPARATORY STEPS
Our first goal is to prepare an initial set of FRCP,
Rule 34, document requests and subpoenas duces
tecum that will bring in the main body of documents
that we need to review when we begin preparing
our case and assembling the evidence for trial. To
do this, we must determine two things: (1) What
documents do we need? (2) From whom can we obtain them?
Step 1
365
If you have a working background in a particular business or profession, you may have opportunities to put your experience to good use in document discovery, because record keeping is
becoming increasingly specialized. For example, in
a medical malpractice case, it is necessary to
gather and interpret medical and hospital records.
The keeping of medical records is practically a profession unto itself; medical record technicians undergo an entire curriculum of study to learn what
kinds of records there are and how to administer
them. A suit against a real estate broker would involve an entirely different type of records. In either
case, a number of different kinds of records are routinely kept in the business in question, and it takes
experience with that business to know what they
are. (That is why experienced nurses who are
trained as paralegals are eagerly sought by law
firms specializing in personal injury and medical
malpractice cases.)
Documents that an opponent will use as an exhibit at trial (see sidebar on supplementation).
Documents (like receipts or bills) that evidence expenditures included in the amounts
for which an opposing party is suing.
Insurance policies covering any of the damages involved in the suit.
Correspondence between any of the parties
to the suit.
Reports of expert witnesses retained by an
opposing party.
Documents supporting the allegations made
by the opposing party in its pleadings.
366
disclosuremandatory disclosure rules are intended to embrace the kinds of documents that a
competent litigator would request in every case. As
you gain experience and have occasion to see the
work of others, you should compile your own
generic list of documents to be requested.
Our master list will inevitably grow and evolve
as the discovery process continues. As we review
documents in the case and familiarize ourselves
with the facts, we will get ideas about additional
documents to request.
Your Local Notes
_________________________________________________
_________________________________________________
SIDEBAR
Supplementation of Responses
Can we, then, assume that our opponent will voluntarily turn over additional documents as he or she
obtains them? Sorrynot a safe assumption. It is too
easy for the opposing party to argue that the additional documents were not material or that the original response was complete and correct when made.
The rules of most courts require parties to exchange all trial exhibits at some time before trial, so at
least we will eventually get to see any after-acquired
documents that our opponent intends to use as exhibits. Of course, these are unlikely to include any documents that will help our case.
367
SIDEBAR
The Virtue of Redundancy
The goal of an opposing party responding to our
discovery request will be to turn over to us as many
tons of useless paper as possible, while withholding
any documents that would really help us win our case.
Opposing parties will attempt to withhold documentsthat is a given. Our goal is to write our requests in such a way that if our opponent does withhold the documents we want, we will be able to show
the judge very clearly that we did ask for them.
How can we write requests that accurately describe documents that we have not yet seen? This is a
little like trying to hunt blackbirds at 2:00 A.M. on a
moonless night. Overly specific descriptions are like
shooting with a rifleunless we are exactly on the
mark, our opponent will point to all of the words in
our description that do not match document X, and
use the differences as an excuse not to give it to us. On
the other hand, if our descriptions are too broadthe
shotgun approachour opponent will point to all
of the details of document X that are not included in
our description, and claim that our description was
too vague.
One strategy that we can use to good effect is to
do both. An example based on our hypo will help
make this clear: In taking Arnie Trevaynes deposition,
Allen Porter gets the impression that Arnie is a shady
character and suspects that Arnie may have been in-
SIDEBAR
Discovery Legalese
In writing FRCP, Rule 34, requests for production
and subpoenas, we want to make our document descriptions as all-encompassing as possible, so as to
avoid giving the opposing party an excuse to withhold
documents. Here are a few ideas that will help you do
this:
Use phrases like all documents evidencing, reflecting, comprising, or pertaining to to broaden
the scope of your requests. All contracts between
X and Y will get you only documents that are
clearly contracts. All documents evidencing, re-
As you gain experience responding to discovery requests, keep your eyes open for other useful additions to
your vocabulary of discovery jargon.
368
Step 2
DRAFTING STEPS:
REQUESTS FOR PRODUCTION
Now we separate our stack of document lists into
two groupsone consisting of lists to be requested
from parties to the suit, and the other of lists to be
requested from nonparties. To request documents
from a party, we will prepare a Rule 34 request for
production of documents and incorporate our list
in it. Steps 3, 4, 5, and 6 explain how to do this. To
request documents from a nonparty, we will use a
subpoena. Steps 7, 8, and 9 explain how to prepare
and issue a subpoena.
Step 3
Step 4
Preamble, Instructions,
and Definitions
The main body of the request begins immediately after the caption. As usual, the body should begin with
a preamble telling the reader what the document is.
A typical preamble might be written as follows:
Plaintiff requests, pursuant to the
provisions of Rule 34, Federal Rules of Civil
Procedure, that defendant Park Hotels Group
produce the documents and things listed herein
for inspection and copying at 10:00 A.M. on
January 14, 2000, at the law offices of Simon &
Step 5
Insert List
of Documents Requested
After the preamble and the instructions and definitions, if any, the list of documents to be produced
appears. Here, you simply block-copy the list that
you generated in Step 2. The format, within reason,
is up to you; as always, we would suggest that you
follow a suitable sample form reflecting local practice in the court in which the suit is pending. Each
item in the list should be numbered, so that the responding party can refer to the numbered items in
the written response.
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Step 6
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Step 7
Step 8
Issue Subpoena
Procedures for issuing subpoenas vary considerably from one court to another. Although a subpoena is technically a court order, subpoenas are almost never signed by judgesjudges are far too
busy to waste time on such mundane tasks. The
clerk of the court is authorized to issue certain
kinds of routine court orders without having to consult a judge first, and subpoenas fall into this category. Therefore, in many courts (including, at your
option, in federal court) when you want a subpoena, you prepare the subpoena form and take it
(or send it with the process server) to the clerk of
the court, who will sign it, seal it, stamp it, or do
whatever else is necessary in your jurisdiction to
make the subpoena official. The clerk may require
you to provide another form (again, typically a onepage preprinted form on which you fill in the
blanks) called a praecipe. A praecipe is a written request for the clerk to issue a subpoena or other routine paper. The praecipe goes into the courts file
and serves as a record that a subpoena was issued.
In federal court under current Rule 45, we may
dispense with the need to involve the clerk of the
court in subpoena issuance. FRCP, Rule 45(a)(3),
provides that An attorney as officer of the court
may also issue and sign a subpoena. . . .
Step 9
Because we are using the subpoena to obtain documents from a nonparty, the rules do not authorize
us to serve the subpoena informally under FRCP,
Rule 5. Instead, in federal court, FRCP, Rule
45(b)(1), governs: Service of a subpoena upon a
person named therein shall be made by delivering a
copy thereof to such person.
Formal service is necessary if we want to be
able to enforce the subpoena as a court order. If the
subpoena has been properly issued and served,
and the person subpoenaed fails to appear or produce documents as ordered, we can (in theory) get
the judge to have her arrested and brought before
the court for a good scolding or worse. As with any
court order, the judge has the power (albeit rarely
used) to punish someone who defies a subpoena by
jailing her for contempt of court.
Before we can ask the judge to enforce a subpoena, we must be able to prove that we served it
properly. For lawsuits in federal court, FRCP, Rule
45(b)(3), provides that Proof of service when necessary shall be made by filing with the clerk of the
court by which the subpoena is issued a statement
371
important activities in discovery is that of scheduling and keeping track of the status of all of the document requests, subpoenas, and other discovery procedures that we have set in motion. (As it happens,
this is a task that is tailor-made for paralegals. If you
want to impress your supervising attorney with your
competence and value to the firm, this is a great
place to demonstrate your initiative and talent.)
Step 10
Your Local Notes
_________________________________________________
_________________________________________________
As a practical matter, of course, we may not always care whether a subpoena is technically enforceable. Often, we will be making routine document requests addressed to sources who are willing
to cooperate and merely want a subpoena as protection in case someone later claims that they gave out
information improperly. In situations of this kind
obtaining medical records from a hospital, for examplewe may often dispense with the expense of formal service and send the subpoena by mail, relying
on the fact that we can always serve the subpoena
properly later if cooperation is not forthcoming.
When we subpoena documents from nonparties, do we have to let our opponents in the lawsuit
know what we are doing? In federal court, yes.
FRCP, Rule 45(b)(1), requires that prior notice of
any commanded production of documents . . . shall
be served on each party in the manner prescribed
by FRCP, Rule 5(b). State court rules vary, but professional courtesy and ethics will usually dictate
that we both notify opposing parties when we send
out a subpoena, and that we furnish opposing parties with copies of any documents we receive in response to the subpoena. Of course, we have a right
to insist on similar courtesy from our opponents.
Your Local Notes
_________________________________________________
_________________________________________________
CONCLUDING STEPS
Merely issuing discovery requests does not make the
documents we need magically show up in our in-box.
Opposing parties will resist, and third-party witnesses will procrastinate; it is up to us to make sure
that we get what we have asked for. One of the most
The first step in tracking the status of document requests is to enter the due date for the response on
the office docket. You should do this automatically
as you send out the requests and subpoenas. You
may also wish to keep a separate calendar for yourself, in which you enter response deadline dates for
the cases to which you are assigned.
Often, you will check your calendar and find that
a response that was due did not arrive. What then?
We will study the various ways in which we can enforce compliance with our discovery requests in
Workshop 15, but our first step is always to send out
a letter demanding compliance. When? Usually, we allow a few days leeway in case the response is in the
mail, but ideally we want to send the demand letter no
more than a week or so after a deadline has passed. In
the letter, we demand a full and complete response to
our document request by some nearby date that we
specify (10 days or so in the future) and note that date
on our calendar. If that date passes without a response, we send another, stronger demand.
You may be wondering what good it will do to
send a letter demanding documents if a formal request did not get the job done. Why bother? Here is
the reason: Ultimately, if we do not get the documents we requested, we will file a motion to compel
discovery asking the judge to order our opponent
to comply. Most judges dislike discovery disputes
and consider them a waste of time, feeling that parties ought to be able to resolve such minutiae on
their own. Before we go to the judge for an order, we
need to be able to show very clearly that we left no
stone unturned in trying to solve the problem without bothering the court, and were unable to do so
only because our opponent obstructed us at every
turn. In that way, the judges irritation at having to
waste time on a discovery dispute will, we hope, be
aimed at our opponent instead of at us.
Step 11
372
give us access to the actual documents we requested. Recall that a FRCP, Rule 34, request for production instructs the opposing party to produce
documents for inspection and copying at a specified
date and time, usually at the office of the requesting
partys attorney (see Step 4 earlier). In other words,
the procedure as contemplated by Rule 34 is for the
opposing party to show up at our office with original
documents, which we could then review and copy.
In todays world of expensive attorneys and
cheap copies, document production is almost never
done in the manner prescribed by Rule 34. Instead, if
the documents requested are not too voluminous, we
are likely to receive a stack of photocopies in the mail,
probably with a bill for the copies. (Recall that under
the literal provisions of Rule 34, we, as the requesting
party, are supposed to make the copies. The responding party is not required to pay for them.)
If we have requested quantities of documents
amounting to more than a few hundred to a few thousand pages, we may be invited to come to wherever
the documents are to inspect them and make whatever copies we desire. Usually, counsel will be able to
come to some agreement on how, when, and where
documents will be inspected and copied. It is not uncommon in big document cases for several attorneys
and/or paralegals to spend many days or weeks closeted in a conference room at opposing counsels offices examining scores of boxes of files, one page at
a time, and photocopying the pages deemed important. (Needless to say, this is a fertile source of paralegal employment.) In very complex lawsuits, which
can involve literally hundreds of thousands of pages
of documents, the court will often order the creation
of a central document depositorya neutral location is obtained, clerical personnel hired, copying
machines installed, and all of the original documents
are kept there for the duration of the lawsuit so that
all parties can access them as desired.
As we receive incoming documents, we must
keep in mind that the goal of discovery is to develop
evidence that we can use to prove our case. To accomplish that goal, we need to have some way of
proving where documents came from. There are a
variety of ways to accomplish this. In routine cases
(i.e., those not involving many thousands of pages
of documents), our preferred approach is to stamp
each page of each document that we obtain, using a
sequential numbering stamp. We start with number
000001 on the first page of the first document that
we receive in the lawsuit, and continue in sequence
as we receive new ones. In this way, each page of
each document has a unique number. We then keep
a log in which, at a minimum, each time we receive
a new bundle of documents from someone, we enter the beginning and ending page numbers, together with information about when and from
whom we received each set. We can also use litigation support software tools to catalog documents;
these allow us to record detailed information about
each document and to locate documents via computerized searches. However we choose to do it, we
must employ some systematic method of organizing and cataloging the documents that we receive.
Step 12
To check that we received all of the documents that we asked for, so that we can take
further steps to pursue any that our opponent withheld.
To organize and file the documents in such a
way that we can later locate the items we need.
To identify any documents that we want to
use as evidence, and begin building the proof
that we will need at trial.
To improve our understanding of the facts so
that we can frame additional discovery requests and find more evidence.
2.
Which option should you choose? The answer depends on a great many factors. We nearly always begin with a letter to opposing counsel demanding that
any missing documents be supplied. To that end, one
of our first tasks in analyzing documents produced in
response to a Rule 34 request for production or subpoena is to go through the request or subpoena item
by item, compare each item with the documents we
actually received, and make a list of all of the ways in
which the opposing partys response failed to com-
Organizing and Filing DocumentsWe have already mentioned the need to keep a record of the
source of each document that we obtain in the
course of discovery. It will come as no surprise that
good document management in complex lawsuits
can involve far more than that. In cases involving
large quantities of documents, it is a daunting task
to maintain a filing and indexing system that allows
us to access the documents we need in a useful way.
Here is an example of the kind of assignment
you can expect to receive as a paralegal in charge of
the documents in a lawsuit: Your supervising attorney is about to take the deposition of a key witness,
so he asks you to assemble every document in
which the witnesss name is mentioned. In a case involving only a few hundred pages of documents,
you can probably accomplish this task in a short
time by skimming through the file. But if there are
thousands of pages of documents, you will need an
indexing system of some kind.
There are many possible ways of organizing
document filing systems, and choices are made
based on individual preferences and the needs of a
given case. In most situations, a simple chronological organization is best; that is, we simply file the
documents in the order in which we received
them. If we have number-stamped the pages (see
Step 11 earlier), this system allows us to find any
document easily by its page number. We can then
create indices by topic if we wish, listing the page
numbers of all documents that pertain to a particular issue or person. In our list of facts to be
proved (see preceding chapter, Introduction To
The Discovery Workshops), we can note the page
numbers of documents that bear on each of the
facts we have listed. Tempting as it may be to try
to organize the documents themselves by topic or
in some other way that groups related documents
together, experience teaches that the complexity
of such schemes usually outweighs their usefulness. It is better, in most situations, to leave the
documents in their original order and use separate
tools to organize them such as our list of facts to
be proved, a topic index, or document retrieval
software of the kind discussed in the next paragraph. Using these tools, we can always locate all
373
374
2.
3.
4.
All documents comprising, reflecting, or pertaining to any complaint made by any person at
any time, the subject matter of which related to
any conduct by Arnold Trevayne.
(This illustrates the use of redundancy in discovery requests; see sidebar. Anything covered
by this item should also be covered by the preceding one, but we want to approach important
categories from several different angles so as to
allow as little hedging as possible. Also notice
that we asked for complaints by any person,
not just hotel guests.)
5.
All documents comprising, reflecting, or pertaining to any complaint made by any hotel
guest at any time after January 1, 1995, the subject matter of which related to any defect or
claimed defect in any guest room door or lock.
(You will sometimes see requests that ask
for, i.e., any complaint made during the three
years preceding this lawsuit. We prefer to use
specific dates whenever possibledoing so
makes it much harder for a responding party to
accidentally misremember the date on which
the lawsuit started.)
6.
All documents, including without limitation registration cards, reflecting the identities of all
hotel guests occupying or registered in Rooms
400 through 447 of the Banbury Park Hotel on
the night of February 5, 1996.
(We want the identities of other guests on
Shannons floor so that we can contact them and
find out whether they may have witnessed anything useful to us.)
7.
Document Requests:
Learning by Example
We now use what we have learned to prepare a
Rule 34 request for production seeking documents
from defendant Park Hotels Group on behalf of
Shannon Martin. We also prepare a subpoena to
obtain the records of Dr. Collinss hospitalization
in Las Vegas.
PREPARATORY STEPS
Step 1
8.
375
13. All documents reflecting, comprising, or pertaining to any report of any expert witness who
will testify at the trial of this matter or whose
opinion is otherwise subject to disclosure under the provisions of FRCP, Rule 26.
(Expert witnesses often prepare reports summarizing their conclusions for their clients; the
experts report will be indispensable in preparing
to take a deposition. Not only that. . .)
We will also have a number of generic categories of documents to ask for, but most of these
will be plugged in or adapted from forms developed
in previous cases. By covering more general territory, these generic categories will help plug any
gaps that may remain in our specific list. Here are a
few sample generic requests (again, highly
abridged due to space limitations):
9. All documents that defendant Park Hotels
Group will seek to introduce as an exhibit at the
trial of this matter.
(But waitwill not Park Hotels easily weasel
out of this one by responding that they have not
yet decided what exhibits they will use? Almost
certainly that will be defendants initial response,
but under FRCP, Rule 26(e)(2), defendant has a
continuing duty to supplement the response
when it does decide. See sidebar.)
10. All documents that Park Hotels Group will use
in any court proceeding in this matter, including without limitation demonstrative evidence,
documents used for the purpose of refreshing
a witnesss recollection, and exhibits to motions or affidavits.
(Again, note the redundancy. We want to be
sure that there will be no surprises in documents
submitted to the court, so we ask for them in several different ways.)
11. All documents reflecting, comprising, or pertaining to any statement obtained by any person
of any witness in connection with any matters
relating to this lawsuit.
(First, we ask for witness statements specifically. . . .)
12. All documents reflecting, comprising, or pertaining to any communication between any
party to this suit or any representative of any
Step 2
376
DRAFTING STEPS:
REQUESTS FOR PRODUCTION
Step 3
Step 4
Preamble, Instructions,
and Definitions
Step 5
)
)
Plaintiff,
)
)
v.
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware
)
corporation;
)
)
Defendants.
)
_______________________________________________ )
Plaintiff requests, pursuant to the provisions of Rule 34, Federal Rules of Civil Procedure, that
defendant Park Hotels Group produce the documents and things listed herein for inspection and
copying at 10:00 A.M. on January 14, 2000, at the law offices of Simon & Porter, 1000 North Central
Avenue, Suite 2800 Phoenix, Arizona 85004.
INSTRUCTIONS AND DEFINITIONS
1. Document means and includes writings, letters, memoranda, contracts, agreements,
conveyances, drawings, graphs, charts, photographs, computer printouts, electronic mail messages,
phone records, computer disks and/or disk files, audio, video, or data tape recordings, and any other
data compilations from which information can be obtained.
377
378
Step 6
After Allen Porter reviews the request for production and signs it, we serve copies by mail on defendants (see Workshop 7). Which defendants? Both of
them. We serve it on Park Hotels Groups attorney
because Rule 34 requires us to serve the request on
the party to whom we are making it; we serve it on
Dr. Collinss attorney because FRCP, Rule 5, requires
us to serve all court papers on all opposing parties.
If we are in a jurisdiction that has restricted the
filing of discovery papers [see Workshop 7 and
FRCP, Rule 5(d)], we prepare a notice reflecting the
fact that we have served a request for production
on defendant Park Hotels Group. We serve a copy of
the notice on each defendant with the request itself,
and we file the original notice with the clerk of the
court. If we are in a jurisdiction that still requires
the filing of discovery papers, we file the original request for production with the clerk of the court.
Step 7
Step 8
Issue Subpoena
Step 9
379
)
)
)
Plaintiff,
)
v.
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife;
)
PARK HOTELS GROUP, INC., a
)
Delaware corporation;
)
)
Defendants.
)
_______________________________________________ )
SUBPOENA
IN A CIVIL CASE
TO: Custodian of Records, Las Vegas Municipal Hospital, 233 B Street, Las Vegas, Nevada
YOU ARE COMMANDED to appear in the United States District Court at the place, date and time
specified below to testify in the above case.
PLACE OF TESTIMONY COURTROOM:
TIME AND DATE:
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the
taking of a deposition in the above case.
PLACE OF DEPOSITION:
TIME AND DATE:
YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or objects at the place, date and time specified below:
1.
PLACE: Law offices of Allen Porter, SIMON & PORTER, 1000 North Central Avenue, Suite 2800,
Phoenix, Arizona 85004
TIME AND DATE: January 14, 2000
DOCUMENTS TO BE PRODUCED:
1.
All documents and records relating to the care and treatment of Dr. Arthur Collins, SSN aaa-bbcccc, since February of 1996 including, without limitation, intake records and notes, medical tests and
test results, progress notes, any diagnosis or diagnostic tests, medications, therapies, billing
statements, surgical and follow-up notes and all discharge documents.
YOU ARE COMMANDED to permit inspection of the following premises at the date and time
specified below:
PREMISES:
TIME AND DATE:
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, director, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the matters on which the person will
testify. FRCP, Rule 30(b) (6).
Allen Porter
Issuing Officer Signature and Title
(Indicate if Attorney for Plaintiff or Defendant)
continued
380
(1)
A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps
to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which
the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of his duty an
appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorneys fee.
(2)(A) Subject to paragraph (d)(2) of this Rule, a person commenced to produce and permit inspection and
copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time
is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except
pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party
serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to
compel the production. Such an order to compel production shall protect any person who is not a party or an
officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A)
(B)
(d)
On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
(i)
fails to allow reasonable time for compliance;
(ii)
requires a person who is not a party or an officer of a party to travel to a place more than 100 miles
from the place where that person resides, is employed or regularly transacts business in person,
except that, subject to the provisions of clause (c)(3)(B)(iii) of this Rule, such a person may in order
to attend trial be commanded to travel from any such place within the State in which the trial is
held; or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
If a subpoena:
(i)
requires disclosure of a trade secret or other confidential research, development or commercial
information, or
(ii)
requires disclosure of an unretained experts opinion or information not describing specific events or
occurrences in dispute and resulting from the experts study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel
more than 100 miles to attend trial, the court may, to protect a person subject to or affected by
the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is
issued shows a substantial need for the testimony or material that cannot be otherwise met
without undue hardship and assures that the person to whom the subpoena is addressed will be
reasonably compensated, the court may order appearance or production only upon specified
conditions.
Duties in Responding to Subpoena.
(1)
A person responding to a subpoena to produce documents shall produce them as they are kept in the
usual course of business or shall organize and label them to correspond with the categories in the demand.
(2)
When information subject to a subpoena is withheld on a claim that it is privileged or subject to
protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description
of the nature of the documents, communications or things not produced that is sufficient to enable the
demanding party to contest the claim.
CONCLUDING STEPS
Step 10
Step 11
Step 12
381
Document Requests:
Learning by Doing
PROJECT 1
Your task for this workshop is as follows: You are a
paralegal in the office of Roger Yarborough, and you
are assigned to prepare (1) an initial Rule 34 request
for production of documents on behalf of Dr. Collins
to be served on Shannon, and (2) a subpoena for
the records pertaining to Shannons follow-up treatment for her broken finger by her physician, Dr.
Roland Carter.
For simplicity, assume that the lawsuit is pending in the federal district court having jurisdiction
in your locality (or, at your instructors option, in
the state court of your locality), and that all parties
and attorneys are present in your locality. You may
invent suitable local addresses for the parties, attorneys, and others as necessary.
EXERCISES
1.
(Step 1) Make a master list of all specific documents and categories of documents that you
might want to obtain on behalf of Dr. Collins.
2.
(Step 1) Obtain one or more document requests from actual lawsuits and make your own
list of generic document categories to be requested. Add the appropriate ones to your
master list.
3.
4.
(Step 4) Obtain one or more document requests from actual lawsuits having an Instructions and Definitions section. Read the instructions and definitions and make up your own set
for use in your own discovery requests. (In doing this, it is perfectly proper to plagiarize
shamelessly. Do not feel that you have to
change wording that works well the way it is.)
5.
6.
382
8.
9.
PROJECT 2
This project consists of a game intended to be
played by two competing teams. (In a large class, it
may be desirable to break the class into several
pairs of teams.)
Instructions for Team AAssume that you represent a wealthy client who has just lost a lawsuit
and had judgment entered against him for a large
sum of money. Write a list of all the documents that
you can think of that your client might have which
would contain information about any of his assets.
Try to list as many specific documents as you can.
Instructions for Team BAssume that you represent someone who has won a large judgment
against Team As wealthy client, and you are assigned to prepare a request for production of documents that will require Team A to give you as many
of the documents on their list as possible.
When both teams have completed their work,
compare Team Bs request for production with the
documents on Team As list and see how many of
Team As documents escaped.
PRACTICE POINTERS
Numbering Documents
Document organization requires that each page of every document received from the opposing parties be numbered. The mechanics of this vary depending on the size of the case, that is, how many documents are involved, and
the litigation software invested in by the firm. The reason for marking each
page remains the same, however, regardless of the mechanics of the numbering process. Only by marking each page (both front and back) and by then
carefully indexing those documents can a legal assistant have any hope of
quickly and efficiently locating any document at any time when an attorney requests it. After you have reviewed hundreds or thousands of documents, they
all begin to blur in your memory until the request to single out a particular document becomes an ordeal of virtually Herculean proportions. The lesson you
can glean from hearing tales related by more experienced legal assistants is to
number and index documents as soon as they come into your possession.
Most legal assistants prefer numbering documents in the order in which
they are produced. Reorganizing them before they are numbered makes it difficult later to determine which documents were produced in response to
which request. Keeping documents in the order in which a client provides
them is also generally appreciated by clients.
The actual numbering process varies depending on the level of technical
sophistication of the law firm. Traditionally, documents were Bate-stamped
using a machine by the same name. This resulted in an inked, 6- to 10-digit
number on the page; the number of the Bates stamping machine automatically
383
PRACTICE POINTERS
Numbering Documents continued
advanced to the next sequential number as the numbering machine was used.
Today Bates numbering is often done using a computerized process that obviates the need for any number to actually be affixed to the page.
In small cases an alphanumeric system can be used with the first one or
two letters designating the source of the documents and the following numbers identifying each page of the document. Alternatively, if a numbering machine is equipped with only numbers, all numbers can be used. In such a case
the first two numbers represent the source of the documents and the following numbers represent the page numbers of each document.
Once the numbering process is complete, you must then index the documents. In the absence of any litigation support software, you can use a word
processing program to create a simple index. Minimally, you must indicate the
number the document begins with, the date the document was prepared, and
a description of the document. A separate index should be prepared for each
individual or entity that produces records.
TECHNO TIP
Programs are available to assist in handling document-laden cases. Litigation
support software can scan documents,
label and organize them, and coordinate
them with deposition testimony, which it
also organizes. A concordance of all
words or phrases used in a deposition
can be created for instant retrieval. These
programs, such as Utility Support Services, Incs. SUMMATION and inData
Corporations trio of TrialDirector, DocumentDirector, and DepositionDirector,
can be invaluable in coordinating a case
for trial. Even without the bells and
whistles often found in trial presenta-
tion software, the ability to have all relevant documents, depositions, and research files readily available is critical for
pretrial motion practice. These types of
software packages can bring up a portion of a persons deposition testimony
(on video if you had a videotaped deposition) and cross-reference it to answers
to interrogatories, requests for admissions, other documents, and other depositions. You can cut and paste to your
word processor as the document is being
created from the real documents contained in your database, without having
to take up two conference tables!
FORMS FILE
Include samples of the following in your forms file:
KEY TERMS
Custodian of records
Discoverable
Written Discovery
10
WORKSHOP
INTRODUCTION: INTERROGATORIES
AND REQUESTS FOR ADMISSIONS
In this workshop, we begin examining procedures
that allow us to make our adversary answer questions. FRCP, Rule 33, allows us to submit written questions, called interrogatories, to an opposing party,
and requires the opposing party to answer them
within 30 days. FRCP, Rule 36, provides a formal way
of establishing uncontested facts in advance of trial,
so that court time will not be wasted on trivial issues
that are not really in dispute in the first place. This is
done by submitting a request for admissions, requiring the opposing party to furnish written admission or
denial of the facts stated in the request. Both of these
procedures involve written questions and answers,
and both can be used to ask questions only of a party.
We can also question either a party or a nonparty verbally, face to face. Rule 30 allows us to do
this by taking a deposition. We will examine the procedures for taking depositions in Workshop 13.
2.
3.
386
(and even today in some courts), sets of interrogatories were prepared with blank spaces for
the answers. Using a photocopy (or, earlier, a carbon copy) of the set of interrogatories, the responding party typed the answers into the blanks,
typed the words and answers thereto onto the title in the caption, and added a signature page and
mailing certificate. Nowadays, it may be more convenient for the responding party to obtain an electronic copy of the interrogatories, add the answers to each, and print the whole document.
Either way, the end result is a document in the
form of a court paper, with a caption, an appropriate title, a series of questions each followed by its
answer, date and signature lines for the answering
party and the answering partys attorney, and a
certificate of mailing.
Responses to requests for admissions are essentially identical in form and appearance; the only
difference is the title, and the fact that the answers
merely say either admitted or denied, or set
forth an objection, if any.
There is also a practical reason for being reasonably cooperative in admitting minor facts that
are not seriously in dispute: Judges are quite apt
to become annoyed with litigants who make trials
take longer by forcing others to put on formal
proof of facts that are not really in doubt. Judges
who are annoyed have plenty of subtle ways of getting even with the offending party. Excessive obstructiveness in admitting facts may also provoke
our opponent into being equally obstructive in responding to our own requests for admissions,
making our own case more expensive and time
consuming to prove.
The question of whether and how much to admit in response to requests for admissions is an interesting one that we will examine in more detail in
Workshop 11.
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388
SIDEBAR
Limitations on the Number of Interrogatories
Interrogatories lend themselves very readily to use
as an offensive tool. In all but the simplest of cases,
with the help of the block-copy features of modern
word processing, a competent paralegal could easily
generate a set of hundreds or even thousands of interrogatories in an hour or two. Answering them would
require months of full-time work for an entire team of
paralegals working for the opposing partyperhaps
not entirely a bad thing from the standpoint of paralegal employment, but an expensive burden for the litigant who has to pay for it.
By the 1970s, the use of massive sets of interrogatories as a weapon for running up opponents
costs was becoming widespread. Sets of interrogatories several inches thick were becoming commonplace, to the point where litigators worried that it
might be considered malpractice not to try to carpetbomb ones opponents into the Stone Age using 10pound stacks of paper.
Various solutions to the problem were proposed.
One obvious response was to have judges look over
and approve discovery requests for reasonableness before requiring answers, but, as a practical matter,
judges have neither the time nor much enthusiasm for
micromanaging the discovery process in each of the
several hundred lawsuits that may be pending before
them at any given time.
Another proposal was to place a limitsay,
25on the number of interrogatories that a party
could submit in one case. This was an inherently ter-
matically as a result of the disclosure rules in a jurisdiction that has adopted them. Your instructor
will inform you of the usual practice in the courts
of your locality.
Your Local Notes
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Drafting Interrogatories:
Step-by-step Instructions
We now review the steps for taking discovery via
interrogatories and requests for admissions, including drafting the interrogatories and requests,
389
PREPARATORY STEPS
Step 1
1.
Mapping out the totality of the document landscape. To complete our document discovery
effectively, we need to have an accurate picture of what kinds of documents our opponent
has or knows about, how they are organized, in
whose custody they are kept, and what kinds
of information they contain. FRCP, Rule
26(b)(1), allows us to obtain discovery of the
existence, description, nature, custody, condition, and location of any books, documents, or
other tangible things. . . . We can use interrogatories to begin assembling this background information, keeping in mind that the
answers we get will probably not tell us everything that there is to know.
1.
2.
Identifying potential witnesses. We can use interrogatories to make our opponent tell us the
names and addresses of all individuals known
to have information concerning the matters in
dispute. FRCP, Rule 26(b)(1), allows us to inquire about the identity and location of persons having knowledge of any discoverable
matter. . . .
390
3.
nesses and documents the other intends to offer at trial. On the other hand, each party would
prefer to preserve for herself as much flexibility
as possible, waiting until the last possible moment to make final decisions about which witnesses to call and which exhibits to offer.
As a practical matter, developing a witness
and exhibit list in a case is an evolutionary
process. We start, early in the case, by gathering all of the names of potential witnesses and
all of the copies of documents that we can, and
we then begin refining the lists and removing
the unnecessary items. Every witness and
every document that we offer must advance
our cause enough to justify taking up valuable
trial time. By the time the trial date arrives, we
should have quite definite ideas about what we
will present at trial and how.
We canand shouldsend out an interrogatory that asks what witnesses our opponent
may call at trial and what documents he will introduce as exhibits. The response will invariably be that our opponent has not yet decided,
so what does this interrogatory buy us? Quite a
lot, actually: FRCP, Rule 26(e)(2), states that A
party is under a duty seasonably to amend a
prior response to an interrogatory . . . if the
party learns that the response is in some material respect incomplete or incorrect. . . . If the
judge concludes that a party has deliberately
hidden the ball by failing to disclose a witness or exhibit, there is a good chance that the
offending party will be prohibited from using
that witness or exhibit at trial. Therefore, if it
becomes obvious that a particular witness will
be called or that a particular document will be
used, it is foolhardy not to supplement the
prior answers to interrogatories. Again, as is
typical of the discovery process, interrogatories asking for disclosure of trial witnesses and
exhibits will not provide us with perfect information about our opponents case, but they
will help us keep the uncertainties and surprises within manageable bounds.
4.
Establishing the computation of damages. The issue of damages is present in nearly every lawsuit, regardless of what the dispute is about. If
plaintiff wins, how much money will be
awarded? How will that amount be computed?
What losses or expenses will plaintiff be entitled to include in the total, and what proof is
there to verify that these are real? If we represent the defendant, one of our main objectives
will be to place an upper limit on the amount
that we can lose if the trial goes badly. Our
391
far preferable to authenticate documents in advance. Requests for admissions are perfect for
this task: We simply serve requests asking the
opposing party to admit the genuineness of each
document that we intend to use as an exhibit.
In doing this we must be careful to create a
clear record showing exactly which documents
our requests for admissions are referring towe
do not want to leave room for an opponent to
claim that the exhibit we are trying to introduce
at trial is not the same one that she admitted was
genuine. Often, by the time we get to the stage of
the case where we need to think about authenticating trial exhibits, we will already have given
our opponent copies of our exhibits in a numbered set; then we can simply refer to the exhibits in our requests for admissions by an exhibit number and a short description. If we want
to be even more careful, we can always nail down
what documents we are referring to by attaching
copies of them to the requests for admissions.
In the vast majority of cases, there will be little
serious question about the authenticity of the
documents involved in the case, and admissions
concerning the genuineness of documents are
routinely given with little hesitation. Once in a
while, however, a litigant may have a legitimate issue to raisewhat then? Obviously, he will deny
the request for admission that the document is
genuine, but this leaves the requesting party in
the dark about what the problem is. The solution
is for the requesting party to serve, with the request for admission, an interrogatory asking for
the reasons behind any denials. For example:
Request for Admission No. 5
Admit that the document attached to
plaintiffs complaint as Exhibit 1 is a true
and correct copy of a contract entered into
between plaintiff and defendant on or
about March 15, 2000, and that said
contract bears the genuine signatures of
plaintiff and defendant.
Interrogatory No. 5
In the event that you deny the foregoing
request for admission, state each and every
fact tending to show that the document
attached to plaintiffs complaint as Exhibit 1
is not a true and correct copy of a contract
entered into between plaintiff and defendant
on or about March 15, 2000, or that said
contract does not bear the genuine
signatures of plaintiff and defendant.
(If we are in a court that limits the number of interrogatories, we will not want to waste an entire
392
DRAFTING STEPS
Now we begin the task of putting together the actual
court paper that we will serve on our opponent. As
usual, much will be boilerplate block-copied from
discovery requests that we have used in other lawsuits, or from forms. We do not suggest that this is
a purely mechanical process; it takes trained legal
judgment to decide what things to copy, and which
bits of boilerplate will advance our discovery goals.
By the time we have put together what we can by
Step 2
Step 3
As we saw with FRCP, Rule 34, requests for production of documents, many litigators like to include an
Instructions and Definitions section with a set of interrogatories or requests for admission. See Workshop 9 for discussion and examples. If your instructor or your supervising attorney is one of those who
favors this practice, he will undoubtedly have a
form set of instructions and definitions that you will
use, and you will block-copy it into your document
immediately after the preamble.
One caveat: In many of the situations in which
an answer to an interrogatory will be usedarguing to the judge or jury, for examplehaving to flip
back through pages of interrogatories to find the
right definition in the definition section is a distraction best avoided. It is better to make each interrogatory self-contained to the extent possible.
Therefore, we would include in the definition section only definitions of words that will be used
over and over, like document or person. Words
that are used only in one or a few interrogatories
should be defined in each interrogatory in which
they are used.
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SIDEBAR
Numbering Interrogatories
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Step 4
It is customary for interrogatories to be numbered; this makes it easier to refer to a particular interrogatory in some other court paper. The Federal
Rules do not specify the details of how interrogatories
are to be numbered. The numbering system shown in
the examples in this Workshopin which each interrogatory has an underlined sidehead in the form Interrogatory No. Xis commonplace, but local customs vary and should usually be followed.
No lawsuit is entirely unique, and many vary surprisingly little from one to the next. Given two lawsuits based on the same cause of action, it is axiomatic that the elements of the claims must be
the same. For example, physical contact is an element of every suit for battery. Some elements, like
causation and damages, are present in nearly all
lawsuits. Other litigators have spent much time
and talent honing and perfecting discovery requests in all kinds of cases, and it would be senseless not to take advantage of what has already
been done. Not only senseless, but perhaps an invitation to malpracticeif we try to reinvent
everything from scratch, we may well leave out
something important that we would never have
missed had we used the discovery requests from
some similar case as a guide.
When you are assigned to write interrogatories
or requests for admissions in a case, your first step
should be to try to find a case involving similar
claims and defenses, and to obtain copies of the discovery requests used in that case. In a litigation office, your supervising attorney will certainly be able
to suggest other files in the office for you to examine; failing that, try your local law library, where you
can often find sample discovery requests in practice manuals or in books about the various litigation
specialties.
If you are working in a jurisdiction that does
not have mandatory disclosure, do not overlook
the mandatory disclosure rules of other courts as
a source for ideas. These rules have been drafted
by highly experienced litigators and judges with
the intention of requiring disclosure of everything
that ought to be important in any lawsuit. At a minimum, your interrogatories need to cover all of the
factual territory that typical mandatory disclosure
rules cover.
Step 5
394
Writing the QuestionsWhen we write discovery requests, our goal is not so much to write convincingly or elegantly as it is to write precisely. As we
will see in Workshop 11 on responding to discovery,
the responding party will be analyzing each interrogatory or request for admissions word by word,
with the goal of answering the question in whatever
way provides the smallest quantity of useful information. If it is possible to interpret a question in such a
way as to avoid revealing damaging facts, that is how
the responding party will interpret it.
The responding partys only obligation is to answer the questions that we have asked. Volunteering
information that we have not clearly asked for is
something that our opponent is neither required to do
nor likely to do. Suppose our opponent withholds information that we feel we have asked forwhat happens then? There is, of course, a good possibility that
we will never find out that the information exists, in
which case our opponent will gain an advantage and
escape with impunity. If we are lucky enough to get the
information from another source, FRCP, Rule 37, allows us to ask the judge to punish the party who withheld the information. To succeed in this, however, we
must be able to convince the judge that our interrogatory fairly covered the information withheld.
By using vague or ambiguous language, a question may fail to describe the desired information precisely enough. Example: State the
names and addresses of all persons who witnessed the industrial accident described in
plaintiffs complaint. What does witnessed
mean? Would it include someone who, for example, heard a loud noise and came running
over just after the accident occurred? If there
were such persons, and the responding party
did not want their identities known, this interrogatory would not obtain their names. Better:
State the names and addresses of each and
every person who was present in the building
in which the industrial accident described in
plaintiffs complaint occurred, at any time
within one hour before or after said accident
occurred. The moral: Use words about whose
meanings there can be no reasonable difference of opinion. Whether or not people are
present at a particular place and time is not
debatable; whether or not they witnessed an
event can be a matter of opinion.
2.
Step 6
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SIDEBAR
Leaky Interrogatories: An Example
Here is an example that illustrates how poor
wording can result in an interrogatory that fails to obtain the desired information.
Assume the following facts: Two years prior to the
incident in which Shannon was injured, John Smith,
the assistant maintenance supervisor at Banbury Park
Hotel, wrote a memo to Ron Jones, a company vicepresident at Park Hotels Group corporate headquarters. In the memo, Smith informed Jones that the door
closers on the entrance doors of many of the rooms on
the fourth floor were badly worn and preventing the
doors from closing properly, and recommended replacing all the door closers on the fourth floor. (The
door closer is the arm at the top of the door that
pushes the door closed.)
Suppose Shannons attorney serves the following
interrogatory on defendant Park Hotels Group: Identify and describe the contents of all letters written by
any management-level employee of defendant pertaining to the maintenance of the guest room door
locks at Banbury Park Hotel.
Is this interrogatory as watertight as it can be? Will
it force Park Hotels Group to cough up Smiths memo?
Not likelyremember, the responding party is not obligated to volunteer information beyond what is clearly
asked for, and there are several good arguments to be
made that Smiths memo is not within the scope of
what the interrogatory asked for. (Before you read on,
see if you can think of at least three arguments that
Park Hotels Groups attorney could make.)
Here are a few possibilities: (1) The interrogatory
refers to lettersa memo is not a letter. (2) The interrogatory refers to letters written by any managementlevel employee. Smith, as an assistant maintenance supervisor, is arguably not one. (3) The interrogatory
refers to letters pertaining to the maintenance of the
room door locks. A door closer is not a door lock.
How could we fix the leaks in this interrogatory?
Use words that are broader in scope and delete unnecessary restrictive adjectives like managementlevel. For example: Identify and describe the contents of each and every communication by any
employee of defendant pertaining to the maintenance of the guest room doors, door locks, and/or
other hardware associated with guest room doors at
Banbury Park Hotel.
The answer is filed at a time when defendants attorney has probably not yet had
much chance to investigate the facts.
If there is any doubt about whether the answer
should admit or deny an allegation, it will be
denied. In fact, FRCP, Rule 8(b), expressly allows a defendant to deny allegations of the
complaint if she is without sufficient information to decide whether they are true.
There is no incentive for a defendant to make
admissions in the answer. FRCP, Rule 37(c)(2),
imposes penalties on parties who deny requests for admissions without having reasonable grounds for doing so, but there is no similar penalty for making unreasonable denials
in an answer.
There is usually no opportunity for defendant
to obtain admissions from plaintiff during the
pleading process, since there are no pleadings
396
SIDEBAR
The Top Ten List for Learning to Draft Interrogatories
Avoiding the problems of vagueness, ambiguity,
and overspecificity requires us to write interrogatories
and requests for admissions in a style that, in any
other kind of writing, would be considered ugly and
redundant. This kind of writing does not come naturally to most peopleit is a learned skill that comes
with practice. Nevertheless, a few pointers can be
given. Here is our Top 10 list:
1. Wherever possible, describe the information you want with the most general
words possible. Here are a few examples of
this technique:
Too specific:
Better:
all memos
every employee
every person
all receipts
all sales
When you are arguing about an interrogatory before the judge, or reading an interrogatory to the
jury, you do not need the distraction of having to flip
through a stack of papers looking for some external
reference. Although it is permissible to refer specifically to other interrogatories in the same set (i.e.,
State the address of each person identified in your
response to Interrogatory No. 5), this should be
avoided where possible. Similarly, it is preferable to
include any important definitions in each interrogatory rather than in a separate Definitions section.
5. Specify a date range where necessary to avoid ambiguity. For example, write Describe each and every
communication between defendant Brown and defendant Green from January 1, 1998, to the present.
If you do not specify the date range, the responding
party will take the opportunity to decide how far
back in time the response will cover. Where possible,
use a specific datei.e., January 1, 1998, to the
presentin preference to an event that requires the
reader to look up a date, i.e., during the five years
preceding the filing of plaintiffs complaint.
6. Keep interrogatories short where possible. Long,
run-on sentences make it too easy for the responding party to claim that he or she did not understand
what was being asked. If necessary, break the interrogatory up into two or more sentences (see the example in item 3 above).
7. In jurisdictions that do not impose limits on the
number of interrogatories, clarity can often be improved by breaking one interrogatory into two or
more separate ones.
8. Approach the process of writing interrogatories as
one of making successive improvements to a first
draft. Write a first draft of the question; then try to
think of all the ways in which the information you
want could exist that would not be covered by the
interrogatory as you wrote it. Then rewrite the
question and repeat the analysis, as many times as
it takes, until you are sure that you have closed off
every loophole in your wording that an opponent
could use as an excuse not to give you the information that you want. As with most kinds of writing, there is no such thing as good writing of interrogatoriesthere is only good rewriting.
9. Study interrogatories written by skilled litigators
and copy shamelessly. Try to match your writing
style, choice of words, and format to theirs.
10. Practice, practice, practice.
397
disputed factsdisputed facts in a lawsuit are established (usually) by evidence that we already
have, or obtain from friendly or neutral sources. And
if we are going to seek evidence about disputed facts
from an opponent, written discovery is a poor way
to do it because the responding party has too much
opportunity to think about and edit the response.
Depositions are preferable for such tasks.
Your Local Notes
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398
CONCLUDING STEPS
When we have completed our drafting, proofread
our work, and produced the document in final form,
it must be reviewed and signed by an attorney. Then
it is ready to be served on the responding party.
Step 7
Step 8
Answers to interrogatories and responses to requests for admissions are nominally due 30 days after service. FRCP, Rule 33(b)(3), provides:
The party upon whom the interrogatories
have been served shall serve a copy of the
answers, and objections if any, within 30 days
after the service of the interrogatories. A
shorter or longer time may be directed by the
court or, in the absence of such an order, agreed
to in writing by the parties. . . .
If we have served the responding party by mail,
FRCP, Rule 6(e), adds three extra days to the response time. (See Workshop 7 for details on computing deadlines.)
We enter the response due date in the office
docketing system and also in our personal calendar.
If the response does not arrive within a reasonable
time after the due date, we follow up with a reminder letter or two, and then a motion to compel,
if necessary. (Remember, though, that the response
is deemed served when the opposing attorney
mails it, so we have to allow time for it to arrive in
the mail before we can conclude that it is late.)
399
2.
We want to verify that each answer is reasonably complete. A common tactic used by a
party who is reluctant to divulge some damaging fact is to write an answer that seems to be
responsive but, on closer scrutiny, is not. For a
simplistic example, if the question is Did you
beat up your wife?, the answer I love my wife
very much is not responsiveit does not actually answer the question. It often takes a degree of legal judgment, as well as a meticulous
reading of the response, to detect such evasions. When detected, they must be followed
up with a demand for a responsive answer.
3.
We want to note any objections that the responding party has made. As we will see in detail in Workshop 11 on responding to discovery
requests, the responding party is entitled to object to questions that are improper. If any of our
questions have been objected to, we will need
to analyze the legal basis given for each objection and decide whether valid grounds exist. If
not, we will briefly set out in our demand letter
the reasons why the objection is invalid.
4.
Step 9
Step 10
Request Supplementation
as Appropriate
400
In theory, our opponent should make a supplemental response disclosing new information as it is
obtained. FRCP, Rule 26(e)(2), provides: A party is
under a duty reasonably to amend a prior response
to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to
the other parties during the discovery process or in
writing.
As a practical matter, however, we cannot depend on opposing parties to supplement answers
voluntarily. If an opposing party fails to supplement, we will have already missed out on the information we need, and will be left arguing about
whether the unsupplemented facts were material.
Far better, therefore, to make a formal request
for supplementation. This can be a simple, onepage court paper entitled Request for Supplementation and reciting a request that the responding
party supplement his answers to particular numbered interrogatories. For example:
cal of the kind that plaintiff might serve on defendant shortly after the defendants answer is filed.
We will assume that we are in a jurisdiction that
does not have mandatory disclosure rules, and that
there is no numerical limit on the number of interrogatories we are allowed to submit.
Obviously, space limitations do not permit us to
reproduce a complete set of interrogatories here.
Moreover, as we have seen, the content of a set of
interrogatories varies considerably depending on
how close the case is to trial, whether it is the plaintiff or defendant who is submitting them, and other
factors. Therefore, the set of interrogatories and requests for admissions that we present here should
be taken as an illustration of what written discovery
papers look like, not as a definitive model for all
cases and all situations.
PREPARATORY STEPS
Step 1
1.
2.
3.
Drafting Interrogatories:
Learning by Example
We will now put the interrogatory drafting principles that we have learned into practice by drafting a
set of interrogatories and requests for admissions
for use in our hypothetical lawsuit, Martin v. Collins.
We will prepare a partial set of interrogatories typi-
5.
To get defendants version of what happened. Defendants answer, as is typical, denies plaintiffs
version of what happened, but does not tell us
what defendant says happened. An interrogatory will not get us a deep and probing factual
account of the kind that we could elicit in a deposition, but at least it will force defendant to
go on the record with some version of the facts
as defendant contends they occurred.
To force defendant to keep us informed about
what witnesses and exhibits defendant is plan-
401
ning to use at trial. (This will usually be a boilerplate interrogatory that we copy from our
standard set to be used in all cases.) Because
we are submitting this interrogatory early in
the lawsuit, the answer we get will undoubtedly
be incomplete. That does not matterwe will
ask for the answer to be supplemented later.
The earlier and more often we ask for this information, the harder it will be for defendant to
get away with incomplete disclosure later on.
We will draft one interrogatory for each of these objectives. Obviously, in a real lawsuit, this set of interrogatories would be much larger. We reiterate
that our choice of objectives and example interrogatories is arbitrary, and dictated by space limitations rather than by good litigation strategy.
We will also include the request for admission
that we discussed earlier in Step 6, which is intended to help lay the subject matter jurisdiction issue to rest.
DRAFTING STEPS
Figure W101 shows the finished set of interrogatories and requests for admissions, which is put
together using Steps 2 through 6 as a guide. The
instructions/definitions section is from Appendix
A of the local rules of the United States District
Court for the District of Arizona. They are designed for an automobile accident case. A more
detailed (and perhaps objectionable) set of instructions and definitions that could be used is
shown in Figure W102.
)
)
Plaintiff,
)
)
v.
)
)
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware
)
corporation;
)
)
Defendants.
)
_______________________________________________ )
continued
402
Plaintiff hereby submits interrogatories and requests for admission to defendant Park Hotels Group,
pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to be answered in
writing and under oath within 30 days from the date of service hereof.
INSTRUCTIONS AND DEFINITIONS
A. All information is to be divulged which is in the possession of the individual or corporate party, his
attorney, investigators, agents, employees, or other representatives of the named party and his
attorney.
B. A medical practitioner as used in these interrogatories is meant to include any medical doctor,
osteopathic physician, podiatrist, doctor of chiropractic, naturopathic physician, or other person who
performs any form of healing art.
C. Where an individual interrogatory calls for an answer which involves more than one part, each part
of the answer should be clearly set out so that it is understandable.
D. Where the terms you, plaintiff, or defendant are used, they are meant to include every
individual part and separate answers should be given for each person named as a party, if requested.
E. Where the terms accident or the accident are used, they are meant to mean the incident
which is the basis of the lawsuit, unless otherwise specified.
F. A space has been provided on the Form of Interrogatories for your answer. ______ [four (4)] copies
are served herewith. Complete all copies and serve a copy upon each separate counsel representation,
retaining a copy in your file. Attach a verification and certificate of mailing.
Interrogatory No. 1
Identify and describe all documents recording or memorializing any repairs, maintenance, or
installation or replacement of parts or components, relating to the entrance door of any guest room at
Banbury Park Hotel or to any lock, strike, hinge, door closer, or other hardware attached to or
associated with any such door, at any time after January 1, 1995.
Interrogatory No. 2
With respect to each and every person who witnessed or was present in the vicinity of the events
described in plaintiffs complaint occurring at Banbury Park Hotel on the night of ______, state the
name, address, and telephone number of each such person, state the substance of what such person
observed, and identify each and every written or recorded statement given by such person.
Interrogatory No. 3
Separately with respect to each affirmative defense enumerated in paragraph 12 of defendant Park
Hotels Groups answer herein, state the basis of each such defense and state each and every fact upon
which each such defense is based.
Interrogatory No. 4
Describe in detail what you contend were the true facts surrounding the events of the night of
____________________ at Banbury Park Hotel leading up to plaintiffs injury.
Interrogatory No. 5
With respect to each witness, including expert witnesses, that you will or may call to testify at the
trial of this matter, state the name, address, and telephone number of each such witness, and,
separately for each such witness, state the substance of what you anticipate the testimony of each such
witness to be.
Request for Admission No. 1
Admit that this court has valid subject matter jurisdiction of this matter under the provisions of 28
U.S.C. 1332.
continued
403
Allen Porter
Attorney for plaintiff
(Certificate of service goes heresee Workshop 4 for details.)
404
CONCLUDING STEPS
Step 7
Step 8
We compute the due date for the answers to our interrogatories (see Workshop 7 for details on how to
do this) and make a notation in the office docket
and in our personal calendar. If the answers do not
arrive within a few days after the due date, we begin
taking the steps described in Workshop 12, starting
with a demand letter.
Step 9
405
406
Form
(1) When serving interrogatories and requests for admission the propounding party shall
serve upon the responding party a number of sets equal to the total number of separate counsel
representations in the action, plus one (1).
(2) The propounding party shall prepare interrogatories and requests for admission so that
the responding party can provide his or her response in an adequate blank space.
(3) The responding party shall complete all copies of the set served upon him or her, attach
a verification and certificate of mailing, and serve one (1) of such sets upon each separate counsel
representation in the action.
(4) All responses to interrogatories and requests for admission which are not completed in
accordance with subparagraphs (1), (2), and (3) above, shall restate the interrogatory or request for
admission immediately before stating the responses.
(b) Uniform Interrogatories
(1) The interrogatories set forth in Appendix A to these Rules are denominated as Uniform
Interrogatories and are approved for use in accordance with Rule 33 of the Federal Rules of Civil
Procedure, the instructions for use set forth in the Appendix, and this Rule.
(2) The annexed Uniform Interrogatories are not to be used as a standard set of
interrogatories for submission in all cases. Each interrogatory should be used only if it is appropriate in
the particular case. Objections will be sustained to Uniform Interrogatories as a whole set or as to a
particular interrogatory if the provisions of this subparagraph are violated or the interrogatory requires
a response not within the scope of permissible discovery in the particular action.
We analyze the facts disclosed in the answers, making a note in our issues outline of any disclosures
that may be useful in proving any of the elements
of our case, and keeping a list of any factual trails
that need to be explored further.
Step 10
407
1.
2.
3.
In Step 3, ask your instructor for advice regarding the inclusion of an Instructions and
Definitions section. If you are to do so, your instructor will provide a form for you to follow.
4.
In Step 4, go through your set of boilerplate interrogatories, choose which ones are appropriate for this situation, and modify them as
necessary.
Request Supplementation
as Appropriate
Drafting Interrogatories:
Learning by Doing
Now it is your turn to try your hand at drafting interrogatories and requests for admissions. Assume
that you are a paralegal in the office of Gail Stoddard, attorney for Park Hotels Group. Plaintiffs
complaint (in the form appearing in Workshop 5)
has been received and an answer (in the form appearing in Workshop 8) has just been prepared and
filed. Assume that the lawsuit is pending in the state
court having general civil jurisdiction in your locality. You have been assigned to prepare a set of interrogatories and requests for admissions.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula for Steps 1 through 7 described in this workshop.
5. In Steps 5 and 6, write the individualized interrogatories and requests for admissions as
appropriate to carry out the goals you set in
Step 1.
6.
In Step 7, consult the rules of procedure applicable in your court and determine how your set
of interrogatories should be filed and served. If
your court does not allow filing of discovery
papers, prepare an appropriate notice reciting
service of the interrogatories and requests for
admissions.
PRACTICE POINTERS
Finding Samples
If you are asked to draft interrogatories or requests for admissions, consider consulting other court and case files. Begin by looking at your own firms
case files for similar cases as well as any general interrogatories and requests
for admissions form files. If you are aware of a reported case with similar issues that was tried outside of your firm (especially one that was tried to completion), obtain the trial court case number. Go to the clerk of the court that
tried the case and ask the clerk to pull those files. In many courts interrogatories, answers to interrogatories, and requests for admission are not filed
with the clerk as a matter of course. In those courts these discovery documents are available in the courts file only when they have been submitted as
exhibits at trial.
If these documents are not in the file and the case appears pertinent
enough, you may want to contact the attorney who prepared the interrogatories or requests for admission and ask if you can review the file. Such a request
408
PRACTICE POINTERS
Finding Samples continued
should be made only with the permission of your supervising attorney. Also keep in
mind that no substantial use should be made of such documents without the express
permission of the attorney who prepared them.
You can also find sample interrogatories in publications prepared by trial
lawyers associations. A list of available resources can be identified by consulting the
web page for the American Trial Lawyers Association (atlanet.org). Keep in mind,
however, that some of these services are available only at cost. Litigation books typically contain sample interrogatories. When looking for any book remember amazon.com, the web address for the worlds biggest bookstore, as well as the web page
of any legal publisher, such as West, Prentice Hall, Lexus, and others. Also consider
publications prepared by state and local bar associations. They often have books
and pamphlets that are used as part of continuing legal education courses containing samples that have been prepared by leading law firms, many of which have withstood court scrutiny.
TECHNO TIP
If you are using the internet to assist in
the preparation of interrogatories you
may find it helpful to visit the Lois web
site at www.pita.com. If you use the
Classic button you can find your way
to various legal sites that are linked to
that web page. In addition, various legal search engines are available there to
assist you in focusing on the area you
want to research. The site can also take
you to numerous CLE (continuing legal
education) pages where the legal specialty or subject matter you are looking
for might be found. Other places to visit
FORMS FILE
Include samples of the following in your forms file:
* Nonuniform interrogatories
* Requests for admission
If possible obtain samples from different types of cases (e.g., personal
injury, commercial litigation, criminal).
11
Responding to
Discovery Requests
WORKSHOP
INTRODUCTION: PURPOSE OF
PREPARING DISCOVERY RESPONSE
the requesting party the actual documents requested or copies of them. It is not unusual for the
documents assembled in response to a Rule 34 request for production to comprise many thousands
of pages, so it would obviously be impractical to file
copies of the actual documents with the clerk of the
court. Therefore, the rules require us to make the requested documents available directly to the requesting party. To make our record, we then prepare
a written response to the Rule 34 request for production, which we file with the clerk and serve on all
parties to the suit.
To arrive at the desired end productappropriate responses that we can file and servewill require
a good deal of preparation and thought. The necessary preparatory work may include these steps:
Assembling the factual information and documents called for by the request. Usually, the
attorneys and paralegals do not have the degree of detailed knowledge of the facts of the
case required. Often, even the client will not
have the required information readily at hand,
and will have to gather it from a variety of
sources. When the client is a corporation or
other entity, it is often necessary for someone
to conduct an investigation in order to determine which individuals in the organization
have the needed information and to obtain it
from them (an important task often assigned
to paralegals).
Making strategic decisions about what information must be disclosed and what may be
withheld.
Analyzing the requests themselves to identify
any that are improper and should be objected
to.
Deciding how to organize, express, and present the information to be disclosed in such a
way as to minimize its usefulness as ammunition against us.
410
FRCP, Rule 34, requests for production of documents and to requests for admissions, and try to
point out some of the special concerns that these
may present.
Answering Interrogatories:
Step-by-step Instructions
A set of interrogatories arrives in the morning mail;
answers need to be prepared. How do we get from a
stack of questions with blank spaces for the answers to a proper response that we can serve on the
responding party within the time allowed by the
rules? As usual, we advocate a methodical, step-bystep approach as the best way of ensuring that no
details are overlooked and that all the requirements
of the rules are met.
PREPARATORY STEPS
As we will see, a good deal needs to be done before
we can begin drafting answers. First we must plan
our work, analyze the questions, and gather the necessary factual information.
Step 1
Step 2
In answering interrogatories, careful planning is essential. Only in the simplest cases will you have
enough information in the file to allow you to prepare competent answers without obtaining information from other sources. You cannot possibly pull together the information required to write answers to
a complex set of interrogatories in 30 days unless
you approach the task in an organized way.
When you receive a set of interrogatories to answer, your first task after calendaring the due date is
to read the set carefully, question by question, and
make a list of what work you will need to do in order
to be able to answer each one. As you go through
the questions for the first time, we suggest making
notations under each one, classifying them into categories as follows:
Questions that can be answered with information that you already have in the file. These are
the easy onesquestions like State plaintiffs full name and address. On these questions, if you have the answer readily at hand,
you may wish to jot it down immediately; if
not, make a notation indicating that the required information is in the file.
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Step 3
412
DRAFTING STEPS
As we obtain the necessary information, we can
begin putting together the pieces of the response.
SIDEBAR
The Duty of InquiryHow Much Investigation Must You Do?
You will often see interrogatories that call for information that is broader in scope or deeper in detail
that you can readily obtain. In our hypo, for example,
Shannons attorney might reasonably send Park Hotels
Group an interrogatory asking Park Hotels Group to
itemize and describe all maintenance on all Banbury
Park Hotel guest room doors during the last year. It
may be that Park Hotels Group does not keep detailed
records of all such maintenance. In theory, an accurate
and detailed answer could be constructed, but it might
require an all-out investigationtracking down and
interviewing former employees, contacting outside service contractors and materials suppliers, digging
records out of archives, etc. To what lengths are we required to go to answer this kind of interrogatory?
The textbook answer is that we are required to
disclose any information that is in the possession or
control of our client. In general, this means that if the
answer is obtainable from records that belong to our
client, or known by any employees of our client, we are
required to track down the information and include it
SIDEBAR
Keep Your Deadlines in View
We hate to keep harping about deadlines,
but experience teaches that one of the pitfalls for
new paralegals assigned to answer interrogatories is the potential conflict that can arise between a looming due date on one hand and a
procrastinating client on the other. To answer
interrogatories, you need information, part of
which must usually come from your client. You
cannot prepare proper answers until you get
that information. Paralegals who wait until the
day answers are due and then, unable to produce a response ready to serve, offer excuses
about the client not cooperating, should expect
a short career path. Keep close track of your
deadlines. Stay in contact with your clientdo
not make a pest of yourself, but stay in contactand if a problem seems to be developing,
alert your supervising attorney well in advance
of the deadline.
Step 4
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erial. When misleading definitions are found, an objection should be inserted immediately after the offending paragraph (see Step 5 for instructions on
how to express an objection). Overreaching instructions can easily be dealt with by a blanket objection, which, in the spirit of answering boilerplate
with boilerplate, can be inserted after the Instructions and Definitions section as a matter of routine:
To the extent that the foregoing Instructions
and Definitions purport to impose burdens or
obligations beyond those imposed by the
applicable rules of civil procedure, they are
objected to, and will not be complied with.
Step 5
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415
416
SIDEBAR
The Problem of Waiver
One hazard to answering a question that is
objectionable is that doing so usually constitutes a
waiver of the objection. So what? If we are answering the question anyway, surely we did not mind
waiving our objection?
Not necessarily. Unfortunately, sometimes the
waiver can extend to other things beside the question that we answered. Questions delving into areas that are privileged are a particular source of
concern. Consider, for example, the example interrogatory to Dr. Collinss wife, Relate the substance
of each and every communication between you and
defendant Arthur Collins the subject matter of
which concerned the nature of the injuries received
by defendant Arthur Collins.
Clearly, this interrogatory calls for a communication that is privilegeda wife cannot be compelled to testify about communications with a
spouse. However, the subject matter of the question
seems harmless, and there could also be nonprivileged communications between Dr. Collins and his
wifeperhaps this would be a good candidate for
the object, then answer anyway strategy?
Not a good idea with privilege objections. If we
answer the question, we run the risk that by doing so,
we will be deemed to have waived the husbandwife
privilegenot only for this question, but for all questions, present and future. When a question appears
to invade an area covered by an evidentiary privilege, we will always object and decline to answer, unless we are sure that we are willing to waive the privilege entirely.
417
SIDEBAR
The Object, Then Answer
Anyway Technique
As we have seen, some interrogatories are objectionable, but only because of some defect that is
easily corrected. This is often the case with poorly
worded questions. If we object to such questions
and provide no response, the opposing party is
likely to reword the question and send it to us again.
Then we will have another set of interrogatories to
keep track of and more work to do, and since the
opposing party will now have been forced to think
about the question, it will no doubt be framed in a
way that is better for our opponent. One useful response tactic is to set out our objection to the question, thereby preserving the objection, then reword
the question to our liking and answer it.
Example interrogatory: Suppose Dr. Collinss
attorney submits the following interrogatory to be
answered by Shannon. With regard to the hand
gun with which plaintiff shot defendant, state the
date on which plaintiff purchased said hand gun
and the name and address of the seller.
Analysis: This interrogatory is technically misleading and lacking in foundation in that it assumes that Shannon acquired her hand gun by
purchasing it. Let us assume that, in fact, it was
given to her by her father. Theoretically, her attorney could object to the form of the interrogatory
and not answer it, but there is really nothing to be
gained by doing so. Better to note the objection,
and give defendant the information.
Example response: Plaintiff objects to the
form of this interrogatory in that it assumes that
plaintiff was the owner of the hand gun and acquired it by purchase. For defendants information,
and without waiving said objection, the hand gun
was a gift to plaintiff from her father.
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Step 6
Draft an answer.
2.
3.
4.
We repeat this process of drafting, analysis, and redrafting as many times as necessary, until we are
sure that we have sanitized our answer, eliminating
every unnecessary word or fact, and that nothing
unexpected can be made of what remains.
The discussion to follow will offer specific advice about how to write answers, with examples to
illustrate the concepts.
Answers should be couched in simple declaratory sentences and be limited to statements of fact. Never resort to imagery,
metaphor, or comparisons.
419
420
421
422
and depend in part on judges attitudes and local customs. Your instructor will inform you of the accepted
practice in your locality.
Your Local Notes
_________________________________________________
_________________________________________________
2.
3.
We will docket the dates for reviewing the answers on the office calendar so that we do not
forget to do it.
4.
At the intervals chosen, we will analyze our answers in light of what we now know about the
case, and file supplemental answers to disclose
any witnesses or exhibits in addition to those already disclosed.
Example response: At this early stage,
plaintiff cannot make a final determination of
which witnesses she will call at trial or of the
persons whose testimony will be used herein. As
best plaintiff can determine at present, plaintiff
will likely call the following witnesses: plaintiff
Shannon Martin; defendant Arthur Collins;
Arnold Trevayne; Detective Sgt. Marnell, Las
Vegas Police Dept. Plaintiffs address and
telephone number are [list them]; plaintiff does
not have the addresses and telephone numbers
of the other individuals named. Plaintiff will call
other witnesses at trial as appropriate, based on
the outcome of investigation and discovery.
Interrogatories calling for the factual basis of allegations: Many litigators routinely submit a series of interrogatories asking for the factual basis of
each allegation of the complaint or answer.
Example interrogatory (By defendant Park
Hotels Group to Shannon): With respect to the
allegation made in paragraph 6 of plaintiffs
complaint that defendant Arthur Collins entered
plaintiffs hotel room using a key provided by
Banbury Park Hotel, state each and every fact
and identify each and every document
supporting such allegation.
Factual basis allegations are potentially troublesome because the opposing party can use a care-
less answer to support a motion for summary judgment. Consider the following response:
Example of how not to respond:
Defendant Collinss key was found in plaintiffs
room.
Analysis: This response is a time bomb
waiting to explode. As soon as defendant
becomes aware of the fact that the key found in
plaintiffs room did not fit the door, defendant
will file a motion for summary judgment, using
plaintiffs response as the centerpiece. This
response establishes, in effect, that plaintiff has
no other facts to support the allegation about
the keythe interrogatory asks for each and
every fact, and this is all that plaintiff has
disclosed.
Example of a better response: Plaintiff
made sure the hotel room door was locked the
last time that she entered the room before
retiring, and checked again that the door was
locked before she went to bed. Dr. Collins stated
to police investigating officers that he used the
key provided by the desk clerk to enter the
room.
Interrogatories calling for disclosure of rebuttal evidence: One of the most exciting and satisfying experiences in litigation is to catch an opposing witness telling a lie and have just the right piece
of evidence to prove it. Unfortunately, modern discovery rules make such moments uncommon. All
too often, we are required to disclose that right
piece of evidence, and the opposing attorney will
have plenty of opportunity to coach the witness in
advance. When we have evidence that we think has
great ambush potential, is there anything we can
do to hold it back?
The discovery rules in some jurisdictions provide a procedure whereby evidence intended only
for rebuttal can be filed with the court in a sealed
envelope and not disclosed until it is used. Your instructor will inform you of whether any such rules
apply in the courts of your locality.
Usually, the best strategy is to try to schedule
your discovery in such a way that you can take a
deposition or statement from the witness whom
you expect to lie before answers are due to any interrogatories that would require you to turn over
the evidence that you intend to use against the
witness.
Step 7
Date, Signature,
and Verification
Answers to interrogatories are not just a court paperthey are also the equivalent of testimony by a
witness. You might expect that something more
than an attorneys signature would be required, and
you would be right.
According to FRCP, Rule 33(b)(2), The answers
are to be signed by the person making them, and
the objections signed by the attorney making
them. In those simple words, however, lurk a few
complications.
First of all, who is the person making the answers? Does this rule mean that, for example, a paralegal who researches and drafts answers to interrogatories should sign them? What if the answers
are on behalf of a corporation, and a number of people contribute informationmust they all sign?
In general, the person making the answers is
the party to whom the questions were directed. We
know this because FRCP, Rule 33(a), states that interrogatories are to be answered by the party served.
(Recall that interrogatories can be served only on
someone who is a party to the suit.) Therefore, if your
client is an individual, he or she must sign the answers, even if, as is usually the case, the answers have
actually been drafted by someone else (such as you).
423
What if your client is a corporation or other entitythen who signs? FRCP, Rule 33(a), offers some
guidance: If the party served is a public or private
corporation or a partnership or association or governmental agency, the answers are to be signed
by an officer or agent, who shall furnish such information as is available to the party.
Usually, when you represent a corporation, a
contact person within the organization is given the
responsibility of acting for the entity in dealings with
SIDEBAR
Be Careful What You Let Your Client Swear To
Because your client has signed them under
oath, answers to interrogatories make great ammunition for cross-examining your client when he or she
takes the witness stand to testify at trial. Let your
client say one word that contradicts anything in the
answers to interrogatories, and you may be sure that
your opponent will confront him with the conflicting
answerand the sworn signature. This may seem unfair, since everyone knows that it is the lawyers and
paralegals, not the clients, who write answers to interrogatories, but it is the reality.
It is absolutely essential, therefore, that your client
read every word of the answers before signing; better
yet, if possible, the lawyer or paralegal should go
through the answers sentence by sentence with the
client before signing. Answers to interrogatories are
not one of those documents that the client can safely
skim or sign without reading.
Also consider carefully the wording of the oath that
your client is signingin federal court, no particular
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CONCLUDING STEPS
After we have drafted answers or objections to each
question, and have rewritten and revised them until we are satisfied with our work, we are ready to
send them out.
Step 8
tice reciting that you have served answers to interrogatories and then file and serve the notice.
Step 9
When we have filed and served the answers to interrogatories, is our job over? Not quite. Answers
that seem correct today may look wrong tomorrow.
It is wise to docket the answers for periodic review
to consider whether they should be supplemented.
In federal court, FRCP, Rule 26(e)(2), provides:
A party is under a duty seasonably to amend
a prior response to an interrogatory . . . if the
party learns that the response is in some
material respect incomplete or incorrect and if
the additional or corrective information has not
otherwise been made known to the other parties
during the discovery process or in writing.
Therefore, if we obtain additional information later,
we must amend or supplement our answers. We may
also decide to supplement voluntarily, even when we
are not technically required to. Keeping in mind that
our opponent can read our answers to the jury,
amending or supplementing gives us a way to fix
answers that, in the light of subsequent developments, we wish that we had worded differently. Facts
and perceptions change as a lawsuit moves forward,
and it is worthwhile to revisit past discovery responses periodically and fine-tune them if necessary.
Your Local Notes
_________________________________________________
_________________________________________________
Answering Interrogatories:
Learning by Example
Now we will put into practice the ideas that we have
just explored, by drafting answers to the interrogatories that we prepared in Workshop 10. We will assume that Shannons attorney, Allen Porter, served
the interrogatories on defendant Park Hotels Group
by mailing them to Gail Stoddard, attorney for Park
425
SIDEBAR
Requests for Production of Documents
The task of responding to an FRCP, Rule 34, request for production of documents is in most ways similar to that of preparing answers to interrogatories.
We begin by docketing the response date, reviewing
and analyzing each request, and making the necessary inquiries to find out where the requested documents are kept.
The Formal Response
The response itself is somewhat different from a
set of answers to interrogatories. As with all discovery
responses, it is in the form of a court paper, with caption, signature lines, and certificate of service. The
body of the response, however, takes the numbered requests one by one, with a separate paragraph for each
item. For each numbered item in the request, the response either states an objection or states that the
documents will be provided. Responses to requests for
production are therefore usually fairly short.
Producing the Documents
Note that the documents requested do not form a
part of the response itselfthey are produced separately. FRCP, Rule 34(b), states that The request shall
specify a reasonable time, place, and manner of making
the inspection. . . . In practice, documents are almost
never produced in the manner specified in the request.
If the quantity of documents is small, the responding attorney simply sends photocopies with the written
response. In complex cases, however, the documents
necessary to respond to a document request may comprise many file boxes of paper. The cost of copying
would be prohibitive, and even if we could turn over
copies, we would prefer not to give our opponent unlimited time in which to review them. The usual solution is that we first go through the boxes of documents
carefully ourselves, to make sure no surprises are lurking, and then we put them in an empty conference
room or other neutral location and let opposing counsel examine them there and make whatever copies are
desired. Either the responding attorney can provide access to a copying machine, or the reviewing attorney
can rent a copying machine and have it temporarily installed at the place where the documents are being reviewed. Usually, attorneys are able to agree on reasonable procedures for reviewing and copying documents;
if not, the judge can enter appropriate orders.
Making a Record of What Was Produced
A problem arises when the documents produced
are voluminoushow do you prove exactly what you
produced? If we have turned over photocopies, we can
keep a set of copies for ourselves, but if we have turned
our opponent loose in a room with a hundred boxes of
files, how do we prove what we turned over? We use
the response itself to make a record. Instead of responding merely Item 4: Produced, we will respond,
Item 4: Produced six boxes of records comprising all
maintenance department work orders for January 1,
1998, through March 15, 2000.
SIDEBAR
Responding to Requests for Admissions
In form and appearance, the response to a set of
requests for admissions is nearly identical to a set of
answers to interrogatories (and may even be part of
the same document if the interrogatories and requests
for admissions have been combined in one document).
Responding to a request for admission is much like answering an interrogatory except that the answer must
admit or deny the assertion made in the request.
The Form of Admissions and Denials
In a request for admissions, the individual items to
be admitted or denied are set out in numbered paragraphs. As with interrogatories, the response is entered
in the space below each request. Usually, the answer to
a request for admission should be a single word: admit or deny. Occasionally, more is required: FRCP,
Rule 36, provides that when good faith requires that a
party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall
specify so much of it as is true and qualify or deny the remainder. Usually, however, long-winded responses
should be avoided. We should never admit anything unless we are reasonably certain that the admission cannot harm our case; if we are in doubt, it is best to deny.
If in Doubt, Deny
You might wonder why anyone would ever respond to a request for admission with anything but a
426
SIDEBAR
Responding to Requests for Admissions,
denialwhy not make the opposing party prove
everything the hard way? The answer is that if we
deny a request for admission and force our opponent
to prove the point, FRCP, Rule 37(c)(2), allows the
judge to make us pay the costs incurred by our opponent in doing so. In theory, the judge is required to do
so unless we had reasonable grounds for our denial.
In practice, however, awards of costs are uncommon,
and anyway we would rather risk having to pay a few
of our opponents costs than risk losing the whole
case. We do not mean to suggest that you deny requests when you have no basis for doing so; but never
give away an admission on an important issue unless
you are sure that the issue cannot be won.
Objecting to Requests for Admission
As with interrogatories, we should always be on
the lookout for requests for admissions that are objec-
continued
tionable. In general, requests for admissions are subject to the same kinds of objections as are interrogatories. As with answers to interrogatories, our opponent can read our admissions to the jury, so we must
be especially watchful for admissions that are misleading or could be misinterpreted.
A Timely Response Is Critical
One important way in which requests for admissions differ from interrogatories is that requests for admissions are automatically deemed admitted if not denied within the 30-day response time provided by FRCP,
Rule 36. In other words, if you are late with your response, you have just admitted every request in the set.
In practice, judges can sometimes be persuaded to give
you another chance to respond, buttrust usyou do
not want to bet your career that the judge will be feeling lenient. File on timealways.
PREPARATORY STEPS
Step 2
Step 1
Step 3
When we have gone through the entire set of interrogatories and analyzed each question, we can
then easily determine from our notes what further
information we need and whom we need to contact to get it. Usually, a paralegals first step after
reading and analyzing the interrogatories should
be to consult with the supervising attorney. Some
questions will raise issues on which we need guidance; others will require information from the
client, and we do not contact the client without
prior permission.
427
Because we analyzed and took notes on the entire set of interrogatories before trying to gather information, we will not need to keep interrupting our
supervising attorney with repeated questions; instead, we can meet with her once to go over our
notes. We will, of course, add to our notes any suggestions that our supervising attorney may offer.
Assuming she approves, we can then begin contacting the appropriate hotel employees to gather
the information that we need.
It is important to do this in an organized and
professional way. When we interact with employees
of our client, we are acting as a representative of
our law firm, and everything we do reflects on the
reputation of the firm. We prepare thoroughly before any client contact. Often, we may find that the
person to whom we are speaking does not have the
information that we need, but can suggest someone
else to try. We pursue each lead as necessary, taking notes all along the way.
As we gather information, we begin incorporating it into draft answers. By the time the due date
nears, we should be well on our way to a final draft.
DRAFTING STEPS
We use Steps 4 through 7 to prepare the document,
which is shown in Figure W111.
)
)
)
)
)
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife;
)
PARK HOTELS GROUP, INC.,
)
a Delaware corporation;
)
Defendants.
)
_______________________________________________ )
Plaintiff hereby submits interrogatories and requests for admission to defendant Park Hotels Group,
pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to be answered in
writing and under oath within 30 days from the date of service hereof.
continued
428
continued
429
Gail Stoddard
Attorneys for defendant Park
Hotels Group
continued
430
)
)
)
ss.
The undersigned, being first duly sworn, upon his oath deposes and says: That he is an officer or
agent of defendant Park Hotels Group, Inc. designated by said corporation to answer the foregoing
interrogatories; that the foregoing answers to interrogatories have been prepared by defendants
attorney based upon information provided by him and others from sources that he believes to be
trustworthy, and are true to the best of his present knowledge, recollection, information, and belief.
______________________________________
Ronald M. Jansen
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this 5th day of June, 2000.
_____________________________________
Notary Public
(Certificate of service goes heresee Workshop 4 for details.)
CONCLUDING STEPS
Step 8
Step 9
Answering Interrogatories:
Learning by Doing
Your task for this workshop is to answer a set of interrogatories served on Park Hotels Group by Dr.
Arthur Collinss attorney. Assume that Dr. Collins
has made a cross-claim against Park Hotels Group
alleging that the hotel was negligent and is liable for
his injuries. Assume that the interrogatories shown
in Figure W112 arrived by mail on the second
Wednesday of February of the current year, and assume that the action is pending in the U.S. District
Court having jurisdiction in your locality.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
431
)
)
)
)
)
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife;
)
PARK HOTELS GROUP, INC., a Delaware
)
corporation;
)
Defendants.
)
_______________________________________________ )
Defendant Arthur Collins hereby submits interrogatories and requests for admission to defendant
Park Hotels Group, pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to
be answered in writing and under oath within 30 days from the date of service hereof.
INSTRUCTIONS AND DEFINITIONS
[insert instructions and definitions]
Interrogatory No. 1
With respect to each and every employee of Park Hotels Group, Inc. or Banbury Park Hotel who had, at
the time of the incident described in plaintiffs complaint, any responsibilities involving maintenance,
repair, record keeping, or key issuance or changing with respect to any guest room door, door
hardware or lock, state the name, address, and telephone number of each such person and the nature
of each such persons duties.
Interrogatory No. 2
With respect to each and every person having information concerning the events described in plaintiffs
complaint occurring at Banbury Park Hotel on the night of February 5, 1996, state the name, address,
and telephone number of each such person, state the substance of the information possessed by each
such person, and identify each and every written or recorded statement given by such person.
Interrogatory No. 3
State how you contend that, immediately prior to the incident described in plaintiffs complaint, the
door of Room 407 was able to be opened using the key provided by the desk clerk.
Request for Admission No. 1
Admit that the desk clerk employed by defendant Park Hotels Group, Inc. issued a room key to
defendant Arthur Collins immediately prior to the incident described in plaintiffs complaint, and that
said room key was able to operate the door lock of Room 407.
Interrogatory No. 4
In the event that you deny the foregoing Request for Admission No. 1, state each and every fact upon
which such denial is based.
DATED this _____ day of _______________, 20 ___.
__________________________________________
Roger Yarborough, Esq.
Attorney for defendants Collins
432
2.
When you have completed the answers to interrogatories, determine whether, under the
rules of the U.S. District having jurisdiction in
your locality, the answers would be filed with
the clerk of the court. If so, prepare them as appropriate for filing; if not, prepare a suitable notice for filing.
PRACTICE POINTERS
Copying Documents
When responding to a request for production of documents, the attorney
must decide whether to produce the originals or copies. Although producing
originals saves the cost of making copies, most attorneys choose to provide
copies to prevent alterations from being made, to ensure that an original document is not lost, and to avoid the confusion that results when documents get
out of order.
Before copies are made, each document should be stamped to show that
they have been produced by your law firm. Such stamping helps avoid confusion when multiple parties are involved. Documents that are confidential
should be clearly marked Confidential. If large numbers of copies are to be
made, they should be organized in cardboard boxes and clearly labeled showing the range of numbers of documents contained in each box. Once the
copies are made, the originals should be placed back in the box in the same
order in which they were removed.
Some legal assistants complain that copywork is busy work and find
ways to delegate this task to others. Consider this: Failure to produce readable copies can create problems later on at trial or can lead to unnecessary
misunderstandings and strained relations with opposing counsel. If the person doing the copying is unfamiliar with the case and the documents being
copied, she can easily overlook two pieces of paper sticking together so that
one of them does not get copied or she can fail to notice that a paper is improperly seated in the feeder so that only part of the page is copied or she can
inadvertently make multiple sets of copies, some of which are missing a page.
These errors not only create the appearance of unprofessionalism but they
can result in confusion and tension at later stages in the litigation process.
If you want your attorney to learn she can rely on you, make sure you carry
out every task you are assigned diligently and conscientiously. The job of copying documents may be tedious but it is certainly not trivial. Rather than looking for ways to avoid time before the copy machine, consider ways you can
more efficiently and accurately carry out this important responsibility.
TECHNO TIP
Answering a set of interrogatories is not
a task that lends itself easily to the normal way of writing, in which you start
at the beginning and keep writing until
you get to the end. One question may
require only a phone call to your client
to get the necessary information; the
next may require you to search through
a roomful of files located in another
state.
The easiest way to handle the job,
therefore, is to have some means by
which you can add information to individual answers as you obtain it. Before
personal computers arrived on the law
office scene, this usually meant setting
up a notebook, cutting and pasting one
interrogatory on each page, and keeping notes on each question. With a computerpreferably a notebook or laptop
so that you can take it with you on outof-the-office information-gathering excursionsthe task is much easier. You
should be able to obtain the interrogatories in the form of a word processor
file, either by asking opposing counsel
for an electronic copy or, if necessary, by
scanning the interrogatories using a
scanner and converting the resulting image to a word processing file using optical character recognition software.
With the interrogatories in a word
processing file, it becomes a simple
matter to make notes, record contacts,
and eventually draft answers, simply by
typing the pertinent information in after the question to which it pertains. In
this way, you will always have a current
and complete record of the status of
your work on each question.
FORMS FILE
Include samples of the following in your forms file:
* Answers to the sample interrogatories you collected for your
forms file from Workshop 10
* Answers to the sample requests for admissions you collected
for your forms file from Workshop 10
* Checklist of possible objections to interrogatories
433
Disclosure Rules
and Limitations
on Discovery
INTRODUCTION: REENGINEERING
THE DISCOVERY PROCESS
Many judges and legal scholars today would say
that traditional discovery mechanisms are seriously
flawed. The discovery tools that we have been
studying up to now are request-based, that is, a litigant need notand should nottell an opponent
anything unless the opponent specifically requests
it. The duty of the responding party to provide information depends mainly on whether the requesting party asked the right questions in the right way.
Traditional discovery is expensive. Interrogatories, depositions, and requests for production are
deliberately used to inundate ones opponent with
paperwork and drive up costs. (If you have completed Workshops 9, 10, and 11, it should be obvious to you that the discovery process offers plenty
of opportunity for procedural gamesmanship.)
Judges find themselves spending too much time refereeing arguments about discovery and not enough
deciding cases.
MANDATORY DISCLOSURE
Therefore, many courts are gradually moving away
from the traditional discovery mechanisms and
looking for ways to force litigants to be more cooperative in conducting discovery. Each of the opposing attorneys certainly knows which facts are likely
to be of greatest interest to his opponent. So, instead of making attorneys try to guess the right
questions to ask, why not simply order both sides to
disclose everything, and skip the tedious and expensive procedural games?
You may doubt that the solution could be that
easy, and you would be right. Changing the discovery rules does not suddenly change opposing attorneys from tenacious adversaries into helpful allies
in the Quest for Truth (and if it did, the clients would
look for new attorneys!). Skeptics would say that
mandating disclosure does not eliminate the
gameit merely adds a few new plays. Instead of
skirmishing over the interpretation of an opponents questions, litigators argue over the interpretation of the disclosure rules.
Whatever your philosophical view is about how
the discovery process might best be made to function,
if you practice in a jurisdiction that has adopted disclosure-based discovery, you need to learn to use the
tools of that system. The centerpiece of disclosure-
12
WORKSHOP
436
SIDEBAR
How the Disclosure Statement Fits
into the Trial Preparation Process
In federal district court, the disclosure statement
comprises one step in a larger process designed to ensure that every case is fully ready for trial by the time
the scheduled trial date arrives. Here are the main
steps in that process, as outlined by FRCP, Rules 26(f)
and 16(b):
1. Order setting scheduling conference. As a practical matter, the event that triggers the disclosure
process to begin is the issuance of an order by the
court setting a date for a scheduling conference
(see item 4). In most federal courts, this order issues
automatically and, typically, but depending on the
courts backlog, the initial scheduling conference is
set at some point 3 to 6 months after issue is joined
(i.e., the complaint and answer are filed).
2. Meeting of attorneys. FRCP, Rule 26(f), requires
the attorneys for all parties to the lawsuit to meet
and confer for the purpose of agreeing on a discovery plan. This meeting is to take place no later
than 14 days before the scheduling conference
date set by the court. (This meeting is not the
scheduling conference. The scheduling conference
takes place in court with the judge present. This
meeting is to prepare for the scheduling conference.) Ideally, the opposing attorneys will reach
agreement on issues such as these:
What limits will be placed on the use of inter-
437
SIDEBAR
How the Disclosure Statement Fits
into the Trial Preparation Process continued
each sides disclosure is brought up to date periodically as the case wends its way toward trial.
8. Pretrial disclosure. Shortly before trial, FRCP,
Rule 26(a)(3), requires each side to make some
specific additional disclosure about the witnesses
and exhibits to be used at trial. How do we know
when to do this? Often, the scheduling order specifies a deadline for Rule 26(a)(3) disclosure; if not,
then the deadline is 30 days before trial; see FRCP,
Rule 26(a)(3). The matters to be disclosed are
listed in Rule 26(a)(3):
Names, addresses, and telephone numbers of
is not a very good substitute for a deposition of a witness, because it gives no opportunity to ask followup questions or to observe demeanor. Nor is a disclosure statement a substitute for reviewing files of
documents in their original form. Nevertheless, one
of the main goals of disclosure-based discovery is to
reduce the need for interrogatories and depositions.
Therefore, the discovery rules in disclosure jurisdictions typically place strict limits on the use of other
discovery tools (see sidebar).
438
SIDEBAR
Rules Limiting Discovery
With or without disclosure rules, more and more
courts are adopting rules seeking to rein in the overuse
or abuse of traditional discovery tools like interrogatories and depositions. Some of the measures commonly seen are discussed here.
Increased Planning and Judicial Oversight. One
of the common aims of discovery reform is to introduce a greater degree of planning into the
discovery process. Instead of allowing litigants
to decide what discovery they need as they go
alongpractically guaranteeing procrastination and delaywhy not figure out in advance
what discovery will be needed and make a
schedule that will get it done?
The federal rules attempt to involve the attorneys
for both sides and also the judge in this planning
process. First, the attorneys are to meet, and make or
arrange for the disclosures required by [FRCP, Rule
26(a)(1)] and to develop a proposed discovery plan
[FRCP, Rule 26(f)]. Within 10 days after the meeting,
the attorneys are to submit to the court a written report outlining the plan [FRCP, Rule 26(f)].
Court-Imposed Time Limits and Deadlines. Un-
on discovery that are appropriate in a gardenvariety lawsuit may be far too restrictive in a
large, complex case. Is there any way to adjust
the rules to the needs of the case? Yes. In general, the opposing attorneys can modify the
limits if they can agree. If not, either side can
ask the judge to allow additional discovery. The
court always retains the power to regulate the
cases before it.
SIDEBAR
Other Kinds of Required Disclosure
Even in courts that do not require disclosure
statements, some kinds of voluntary disclosure are often required. It has, for example, long been a common
practice of judges to require parties to exchange witness and exhibit lists at some point before trial. [In
federal court, such a requirement may be found in
Rule 26(a) (3).] Discovery rules often require that litigants voluntarily supplement discovery responses, es-
439
SIDEBAR
Other Kinds of Required Disclosure
Braque, that the purchaser now claims was a forgery.
The purchasers lawsuit is well under way. Art experts
have examined the painting and disagree about its authenticity. Predictably, your expert says the painting is
genuine and your opponents expert says it is a forgery.
You are assigned to do some investigation, and
you begin tracing the history of the painting. While in
France conducting your investigation (every paralegal
continued
should get assignments like this!), in the musty basement of a small library, you discover a document that
proves beyond question that the painting sold by your
client is a fake.
Must the document be disclosed? What do you
think? (Read Rule 3.4 of the ABA Model Code Of Professional Responsibility and the official comments to
the rule, reproduced in Figure W121).
440
Discovery Practices in the Federal Civil Rules Handbook published annually by West Publishing, St.
Paul, MN.)
_________________________________________________
Your Local Notes
_________________________________________________
Disclosure Statements:
Step-by-Step Instructions
If we are handling a lawsuit in a jurisdiction that
has adopted disclosure-based discovery, then we
will have to prepare a disclosure statement. Our
first task must be to find out exactly what disclosure is required in the court in which our lawsuit
is pending.
PREPARATORY STEPS
Step 1
_________________________________________________
SIDEBAR
Current Status of Federal
Disclosure Rules
The flexibility of individual U.S. district courts
to opt out of or modify the disclosure requirements of Rule 26(a) may be about to end. The Judicial Conference Advisory Committee responsible
for proposing changes to the Federal Rules of Civil
Procedure has proposed making Rule 26(a)
mandatory in all U.S. district courts. Many federal
judges have expressed their strong opposition to
the proposal, but, in the end, it is up to the U.S.
Supreme Court to decide (unless the Congress decides to enter the debate, which is possible). At this
writing, the outcome of the proposal is impossible
to predict. For the latest on the changes to the discovery rules currently under consideration, see the
official web site of the U.S. federal courts at
www.uscourts.gov.
Step 2
Step 3
Preparing a proper disclosure statement in a complex case is a time-consuming task that cannot be
accomplished in a few days or weeks without
proper preparation. If you wait until the last minute,
you will not be able to lay hands on the documents
and information that you need. Therefore, it is wise
to begin early to assemble and organize your case.
There are many ways to do this; one that works
well is to use your issues outline as a kind of checklist. Begin by going through the issues outline point
by point, making notes of any documents pertinent
to each point, and jotting down the names of any
witnesses who might be in a position to shed light
on each point. As you review the issues outline,
make a checklist of items for follow-up: documents
to obtain, witnesses to interview, etc.
Then set about gathering the required information and noting the information obtained in your issues outline as you complete each item on your
checklist. As you gather information, read the documents and listen to the witnesses for clues about
other evidence of which you were not aware, and
add to your checklist.
If you follow this strategy, by the time the due
date for disclosure arrives you will be able to write
the disclosure statement from the information
recorded in your issues outline.
One alternative strategy is, of course, to wait
until the last minute, then scramble around trying
to fill in the needed disclosure an item at a time. Procrastination about disclosure is hazardous, because the judge can exclude an item of evidence if it
turns out that you had it all along, missed it because
you were in a hurry, and failed to disclose it when
required.
A final caveat about the issues outline: By the
time the FRCP, Rule 26(a) (1), disclosure statement
is due, the legal issues in the case are usually beginning to gel. At the scheduling conference, the
441
DRAFTING STEPS
What, exactly, is a disclosure statement supposed
to look like? The federal rules give only a very general answer. FRCP, Rule 26(a) (4), provides that unless the court directs otherwise by order or local
rule, all disclosures are to be in writing, signed,
served, and promptly filed with the court.
Since the disclosure must be filed with the
court, it must take the form of a court paper, with
caption and other formal parts, complying with any
local rules governing the form of filed papers. The
body of the disclosure statement must address the
four areas of subject matter described in subparagraphs (A) through (D) of Rule 26(a) (1). Beyond
that, the organization and format of the disclosure
is up to you; if possible, obtain sample disclosures
filed by other practitioners in the courts of your locality, and imitate them.
Step 4
Step 5
442
Step 6
443
SIDEBAR
Inadequate Disclosure: The Consequences
Disclosure statements, like discovery responses,
provide informationpotential ammunitionto our
opponent. Obviously, we would rather not give away
any more of it than necessary. Suppose we file a disclosure statement that is not complete, either because we deliberately held back information, or because we were less than diligent in gathering the
facts to be disclosed. Is there a downside to this kind
of behavior?
444
2.
3.
Relevant to Disputed Facts Alleged with ParticularityAssume that we have already gathered
all the documents that we can find that could conceivably have anything to do with the case. Which
ones must be disclosed? According to FRCP, Rule
26(a) (1) (B), any that are relevant to disputed
facts alleged with particularity in the pleadings.
Example: In paragraph 3 of Shannons
complaint, she alleged that Defendant Park
Hotels Group (hereinafter Hotel) is a
corporation organized and existing under the
laws of the state of Delaware, and doing
business in the state of Nevada. . . . You
represent Park Hotels Group. Obviously, your
client has a number of documents that would
be relevant to its corporate status
incorporation papers of various kinds, for
example. Must you include these in Park Hotels
disclosure statement?
Analysis: Park Hotels corporate existence
is not a disputed fact. Paragraph 2 of Park
Hotels answer admits that Park Hotels Group is
a Delaware corporation doing business in
Nevada. Therefore, there is no need to disclose
the incorporation papers.
Example: In paragraph 18 of Shannons
complaint, she alleged that Park Hotels failed to
maintain the door and lock of plaintiffs room in a
reasonable manner so as to prevent unauthorized
entry. . . . You represent Park Hotels Group. The
hotel maintains maintenance records on all
maintenance done in the hotel, including
maintenance done on doors and locks of all guest
rooms. Must these records be disclosed?
Analysis: Paragraph 8 of Park Hotels
answer denies the allegation that Park Hotels
failed to maintain the door and lock of plaintiffs
room, making that alleged fact a disputed one.
Notice, however, that the allegation referred
only to plaintiffs room, not to all the rooms in
the hotel. Therefore, Park Hotels need only
disclose the maintenance records pertaining to
the door and lock of that one room, and need
not disclose the others.
445
Step 7
Show Computation
Of Damages
The next subject of required disclosure is the computation of damages. FRCP, Rule 26(a) (1) (C), requires the disclosure statement to include:
a computation of any category of damages
claimed by the disclosing party, making
available for inspection and copying as under
Rule 34 the documents or other evidentiary
material, not privileged or protected from
disclosure, on which such computation is
based, including materials bearing on the
nature and extent of injuries suffered. . . .
446
2.
3.
Mechanics of Disclosing Damage ComputationsFRCP, Rule 26(a) (1) (C), requires two
things: (1) a computation of damages and (2) disclosure of the documents underlying the computation. The computation of damages is a part of the
body of the disclosure statement itself. It is usually
best presented in tabular form, listing each item for
which a claim is being made, giving the dollar
amount of each, and indicating what documents
support each. The suggested format is shown later
in Figure W122 in the Learning by Example section.
(But keep in mind that, absent a local rule or court
order to the contrary, you are free to adjust the
style and format of the disclosure to fit the needs of
the situation.)
Care should be taken to avoid casting the damage calculation in concrete. As with most factual issues in lawsuits, our perception of how best to present our case on damages will usually evolve as the
lawsuit progresses. A tight, well-organized presentation of damages may seem impressiveand we will
need one when we are ready to argue to the jury
but at the disclosure statement stage we are better
off leaving some flexibility for change. One way to do
this is to make it clear that the dollar figures in our
damage claim are preliminary and subject to
change, and to clearly label items as estimates if that
is what they are. It is also not a bad idea to include
some weasel words to the effect that the damage
computation is preliminary and subject to change.
(Of course, when the computation does change we
will have to supplement our disclosure.)
As usual, one question that arises is How much
detail? In disclosing damages, the answer is The
more detail, the better. This does not mean that we
need to list every 89-cent bottle of aspirin separately in our damage computationinstead, we
would most likely show a general category for
medications and a total of all expenditures for
such items. In general, though, we do not want to
run the risk that the judge might exclude some item
Disclosing the Backup DocumentationIn addition to the computation of damages, FRCP, Rule
26(a) (1) (C), requires disclosure of the documents
supporting the damage claims. This can be done either by accompanying the disclosure statement
with copies of the documents, or, as the rule suggests, by making the documents available for inspection and copying as would be done with an
FRCP, Rule 34, request for production of documents. The virtue of attaching copies is that doing
so makes it easy to prove exactly what documents
were disclosed. However, particularly with claims
requiring evidence of the extent and severity of personal injuries, the universe of possibly relevant
documents may be quite large, extending to such
voluminous records as hospital charts and physicians notes. Therefore, except in the simplest cases
where our position on damages is unlikely to
change, attaching copies of all relevant documents
may be impracticable.
Step 8
447
The disclosure rules, and before them the discovery rules, have long allowed litigants to find out
how much insurance coverage the opposing party
has. This may seem surprising, since, as everyone
knows, not only is evidence of insurance coverage inadmissible at trial, mere mention of the word insurance in front of the jury is apt to result in an instant
mistrial. The reason why insurance coverage is discoverable and, in disclosure jurisdictions, a required
item of disclosure is because judges want to encourage litigants to settle, and the availability of insurance is usually an important factor in settlement decisions. Like it or not, the settlement value of a claim
often depends greatly on whether a judgment, if won,
could be collected. If a defendant has no insurance
coverage and no other assets from which a judgment
could be collected, plaintiff will be much more likely
to accept a low cash payment rather than spend several years and tens of thousands of dollars obtaining
an uncollectable judgment.
FRCP, Rule 26(a) (1) (D), calls for the disclosing
party to provide any insurance policies to the other
parties for inspection and copying as under FRCP,
Rule 34. In the usual case, this is accomplished by
attaching a copy of the insurance policy to the disclosure statement.
Your Local Notes
_________________________________________________
_________________________________________________
Step 9
Date, Signature,
and Verification
Disclosure statements are signed by the partys attorney in the same manner as any other court paper. You are already aware that an attorneys signature on a court paper carries with it certain implied
representations, as provided by FRCP, Rule 11(b).
In the case of disclosure statements, FRCP, Rule
26(g) (1), adds an additional avowal of completeness and correctness:
Every disclosure made pursuant to [Rule
26(a) (1) or 26(a) (3)] shall be signed by at least
one attorney of record in the attorneys
individual name, whose address shall be
stated. . . . The signature of the attorney . . .
constitutes a certification that to the best of the
signers knowledge, information, and belief,
formed after a reasonable inquiry, the
disclosure is complete and correct as of the
time it is made.
448
SIDEBAR
Taking the Next Step
As we have seen, the federal rules do not carry the
disclosure philosophy to its logical limit. The disclosure of
potential witnesses, documents, damage calculations,
insurance, and expert witnesses required by FRCP, Rule
26(a), is enough to provide litigants with a good start to
their factual development, but the intent of Rule 26 is
that interrogatories, depositions, and other traditional
discovery tools will still be needed to fill in the gaps. Rule
26 aims to provide the litigants with the sources of informationpotential witnesses and documentsbut it is
up to each party to extract the desired information from
those sources using other discovery methods.
Some judges and scholars favor much more comprehensive disclosure schemes. In some state courts,
the rules require more detailed disclosure encompassing not only the sources of information, but the information itself. In the authors home state, Arizona, for
example, state court rules require a disclosure statement to include, in addition to the categories covered
by federal FRCP, Rule 26(a), the following:
The factual basis of each claim or defense. (Not
Step 11
_________________________________________________
_________________________________________________
CONCLUDING STEPS
Step 10
FRCP, Rule 26(a) (4), provides that Unless otherwise directed by order or local rule, all disclosures
shall be . . . signed, served, and promptly filed with
the court. Served on whom? All other parties,
whether adverse or not.
We have seen that many courts, seeking to
avoid clogging the clerks office with unnecessary
paper, do not allow filing of discovery papers. Disclosure statements, however, are filed with the
clerk unless there is a specific local rule or order
providing otherwise.
Your Local Notes
_________________________________________________
_________________________________________________
Disclosure Statements:
Learning by Example
We now apply what we have learned by preparing
an initial FRCP, Rule 26(a) (1), disclosure statement
to be filed on behalf of Shannon. In a real lawsuit, of
course, we would be able to obtain documents and
names of witnesses from our client, and, by studying these and following up any leads, obtain still
more. For purposes of this hypothetical exercise,
we will have to resign ourselves to inventing a typical set of documents and witnesses.
PREPARATORY STEPS
Step 1
449
sue of Wests Federal Civil Rules Handbook, and verify that, in the District of Arizona, Rules 26(a)
(1)(3) apply.
Step 2
Step 3
450
Disclosure Statements:
Learning by Doing
Your task for this workshop is to prepare a Rule
26(a) (1) disclosure statement on behalf of Park Hotels Group, Inc. In doing so you will use hypothetical facts, some of which appear below, some of
which will be supplied by your instructor, and some
of which you will generate on your own. It is up to
you to decide which of them should be disclosed,
and to prepare the disclosure statement in the
proper format.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
Following Step 1, determine the disclosure requirements in effect in the U.S. district courts
having jurisdiction in your locality. Your instructor will tell you whether to prepare your
disclosure statement in accordance with Rule
26(a) or in accordance with the rules in effect
in your local U.S. district court.
2.
3.
DRAFTING STEPS
We use steps 4 through 9 to create Shannons disclosure statement. It is shown in figure W122.
CONCLUDING STEPS
Step 4
Step 5
451
)
)
)
Plaintiff,
)
)
)
v.
)
)
ARTHUR COLLINS and JANE DOE COLLINS,
)
husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware
)
corporation;
)
)
Defendants.
)
__________________________________________________ )
Pursuant to Rule 26(a) (1), Federal Rules of Civil Procedure, plaintiff (defendant) makes the
following disclosures:
1. Persons Having Discoverable Information. The names and, if known, the addresses and telephone
numbers of each individual likely to have discoverable information relevant to disputed facts alleged
with particularity in the pleadings, to the extent known to plaintiff at this time, are:
Plaintiff Shannon Martin
8000 East Chaparral Road #422
Scottsdale, AZ
(602) 555-3857
Arnold Trevayne
Address and telephone number
unknown
452
Subject: Police report indicates that Mr. Garrison and Mr. Rivera
were paramedics who responded to the scene and treated
defendant Collins. They are believed to have made
observations of plaintiffs hotel room and persons and objects
therein, and condition of defendant Collins immediately after
the incident.
Bruce DeAngelo
Network Software Solutions,
Inc.
6366 N. 76th St.
Scottsdale, AZ
(602) 555-7230
2. Documents Relevant to Disputed Issues Other Than Damages. Documents, data compilations, and
tangible things in the possession, custody, or control of plaintiff that are relevant to disputed facts
alleged with particularity in the pleadings, to the extent known to plaintiff at this time are:
Police investigating officers report
Copy of plaintiffs room registration and
receipt
453
28,667.24
838.79
114,321.00
500,000.00
643,827.03
Medical treatment through January 15, ____. Plaintiff has incurred medical expenses in the amount
of $28,667.24, as summarized below, for which bills have been received as of January 15, _____.
Desert Lake Hospital, emergency treatment for
broken finger (statement, attachment 3-1)
Dr. Ellen Sayers, emergency treatment for
broken finger (statement, attachment 3-2)
Paul Norling, M.D., ongoing treatment of
plaintiffs broken finger (statement, attachment 3-3)
Robin Carter, M.D., hand surgery (statement, attachment 3-4)
Anne Resnick, M.D., anaesthesiology during hand surgery
(statement, attachment 3-5)
Gordon McCormick, P.T., rehabilitation therapy following
hand surgery (statement, attachment 3-6)
Scottsdale General Hospital hospitalization in connection
with hand surgery (statement, attachment 3-7)
Dennis Tang, M.D., psychiatric treatment (statement, attachment 3-8)
Misc. medications and supplies (receipts, attachment 3-9)
TOTAL
$588.35
$467.00
$2,089.38
$9,350.00
$1,650.00
$922.65
$6,313.00
$6,018
$1,268.86
$28,667.24
Other Out-of-Pocket Expenses. Plaintiff has incurred other expenses in the amount of $838.79, as
summarized below, for which bills have been received as of January 15, _____.
Mileage for trips to doctors, etc., (mileage log,
attachment 3-10)
Housekeeper during plaintiffs convalescence
after surgery (cancelled check, attachment 3-11)
TOTAL
$513.79
$325.00
$838.79
continued
454
$1,800.00
$3,400.00
$5,200.00
$39,321.00
$75,000.00
$114,321.00
General Damages. Plaintiff claims general damages for pain and suffering in the amount of
$500,000. This claim is based in part upon documents establishing the nature and severity of plaintiffs
injury and the mental trauma which she suffered.
Medical records, Desert Lake Hospital
Medical records, Dr. Sayers
Medical records, Dr. Norling
Medical records, Dr. Carter
Medical records, Dr. Tang
Photographs of plaintiffs hand
4. Insurance. Rule 26(a) (1) (D) does not apply since there are no claims made against plaintiff herein.
DATED this _____ day of _____, 20__
SIMON & PORTER
_______________________
Allen Porter
Attorneys for plaintiff
(Certificate of service goes hereSee Workshop 4 for details.)
455
only Trevayne and McLanes were present in the hotel on the night of the incident. McLanes housekeeping crew was also present; you have asked Mr.
Shapiro for the names and addresses of the workers
on the housekeeping crew but have not yet received them.
Hotel records: The hotel keeps the following
records, among others: registration cards for
each guest; credit card slips for each guest bill
charged to a credit card; (computerized) ledger
sheets reflecting each guests itemized bill; computerized reservation system reflecting all hotel
reservations; computer files generated by the
telephone system reflecting, for all outgoing calls,
the room number placing the call, the number dialed, time of call, and duration, and for incoming
calls, the room number receiving the call, time,
and duration; maintenance work order files reflecting all maintenance performed in the hotel;
books of account reflecting the financial operations of the hotel; purchase orders reflecting all
purchases by the hotel; payroll records and, for
hourly employees, time cards; personnel files for
all employees of the hotel; housekeeping logs reflecting the work done by each housekeeping
crew on each shift; files on each contract entered
into with outside contractors for maintenance or
construction work in the hotel; and correspondence files containing all letters or memos written
by management employees, including memos between Banbury Park Hotel employees and headquarters employees discussing the incident and
the hotels liability exposure. Also, the hotel manager, Mr. Jamison, interviewed Arnold Trevayne
and Donald McLane and took notes of the interviews, and also did some investigation about the
condition of the door lock on Room 407, about
which he kept notes.
Insurance: At your instructors option, do one of
the following:
Option 1: Assume that Park Hotels Group has the
following insurance: a vehicle liability policy covering all vehicles owned by the company, issued by
Associated Risks Insurance Co., Trenton, NJ; a
premises liability policy for the Banbury Park Hotel,
covering liability involving injuries to persons on
the premises of the hotel, issued by Bonded Liability Insurance Co., Omaha, NE; a directors liability
policy covering acts of the corporate board of directors, issued by Old Faithful Insurance Co., New
York, NY; a group medical policy covering employees of Park Hotels Group, issued by Health
Providers Corporation, Wilmington, DE; and a general liability umbrella policy issued by Affiliated
Reinsurance Company, New York, NY.
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Assume that you have just received the U.S. district courts order setting a scheduling conference for the third Friday in April of the current
year. Assume that the attorneys conference to
prepare a discovery plan takes place on the last
possible day. Date your Rule 26(a) disclosure
for the last day on which the disclosure can be
filed and still comply with the rules.
PRACTICE POINTERS
Taking the Initiative
Lawyers are responsible for crafting legal theories and designing case
strategies but legal assistants are responsible for managing cases. They are
the ones that ensure that cases keep on track, that deadlines can and will be
met, that the necessary arrangements are made to secure documentation,
that clients are kept informed, and that a myriad of other details are attended
to. Consequently, legal assistants quickly discover that the more they are kept
informed about the status of a case and the more they are involved as the case
develops, the easier it is for them to manage the case.
Not all attorneys, however, are diligent about keeping their legal assistants in the loop. Therefore, it behooves conscientious legal assistants to
take the initiative in asking questions and volunteering to assume responsibilities that were not assigned them. Those who sit back and wait to be told
what to do next are unlikely to experience rapid advances in their profession.
They will always be adequate but never outstanding legal assistants. Those
who want to be granted greater responsibilities and allowed to assume a more
creative role will have to prove their capabilities. One of the best ways to become irreplaceable to an attorney is to be the individual on whom they can
rely to see that cases progress in accordance with all court mandates and procedural rules and to prevent them from being surprised or unprepared at any
stage of litigation. To actualize this kind of role in a law firm, legal assistants
must assert themselves as professional members of a legal team.
TECHNO TIP
We have talked about using the World
Wide Web portion of the Internet without speaking much about it. The web is
that part of the Internet that allows
users to publish and post their own web
pages (the home page). Remember
that e-mail and other Internet uses do
not require either party to have their
own web page.
Older browsers required that the
complete address of the site you
wanted to get to be entered, such as
h t t p : / / w w w. a b a n e t . o r g ( t h e
home page of the American Bar Association). Today most updated browsers can take you where you want to
go with just www.abanet. org being entered. Some sites can be found
without the www prefix.
The address of the web page is
called a uniform resource locator (URL).
The http:// portion of the address
represents Hypertext Transfer Protocol.
If you go to an ftp site (such as
ftp.isoc.org) you are using the File
Transfer Protocol.
FORMS FILE
Include a sample disclosure statement for your forms file. If
possible obtain at least two samples prepared by different firms so
that you have examples of different types of formats.
Summarize the applicable rules in your jurisdiction that govern
the substance and procedures surrounding the preparation,
submission, and response to disclosure statements.
KEY TERM
Disclosure statement
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13
Depositions and
WORKSHOP
Working with Witnesses
INTRODUCTION: FINDING OUT
WHAT WITNESSES WILL SAY AND
HOW THEY WILL SAY IT
At trial, the litigants tell their stories to the jury
mainly through the testimony of witnesses. The discovery tools we have studied so farinterrogatories, document requests, requests for admissions,
and disclosure statementsare certainly useful,
but they fall short in one important respect: They do
not allow us to evaluate how witnesses will perform
while actually testifying. We can use interrogatories
to discover the general shape of a witnesss testimony, but the impact that the witness has on the
jury depends greatly on the witnesss demeanor,
manner of speech, body language, and a host of
other intangible factors that we can never assess
without actually seeing the witness in action.
The mainstay of witness discovery is the deposition. A deposition is a proceeding in which the attorneys ask questions and a witness, also referred to
as the deponent, answers them. In the vernacular of
litigation, if the witnesss name is John Doe, we may
speak of taking John Does deposition, or we may
say that we are deposing John Doe.
Usually, a deposition is conducted at the office of
one of the attorneys. The witness is placed under
oath, usually by a court reporter who is authorized to
administer oaths. The judge is not present. The attorneys questions and the deponents answers are
recorded, either electronically or in shorthand by a
court reporter. Later, the court reporter uses the
recording or shorthand notes to produce a written
transcript of the testimonythat is, a typed or
printed booklet in which the questions and answers
are reproduced, word for word. The attorney who
scheduled the deposition questions the witness first;
then the opposing attorney may take a turn if desired.
When we schedule a deposition, we must notify
all other parties so that they can attend. This is
done by serving a notice of deposition. Lawyers
and paralegals often use the shorthand phrase
noticing a deposition to refer to the process of
scheduling a deposition and preparing and serving
the required paperwork. Depending on the circumstances, we may also issue a subpoena to the witness to ensure her attendance.
In this workshop, we study the basic procedural
tools and concepts that you need in order to be able
to use deposition discovery effectively as a paralegal. We base our discussion on deposition discovery
ADVANTAGES OF DEPOSITIONS
OVER WRITTEN DISCOVERY
Why take a deposition? Depositions can be used for
a number of important purposes that we cannot
achieve with written discovery:
460
cannot testify in person. For example, a witness may be dying and not expected to be
available when the trial takes place or may be
at some distant location. Then we can go to the
witness, take a deposition, and read the deposition (or, in an increasing number of courts,
show a video recording of the deposition) at
trial as a substitute for live testimony.
PROCEDURAL GOALS
The goals that we seek to achieve through deposition discovery are several, and worth reviewing before we begin exploring the procedural details:
Depositions: Step-by-Step
Instructions
In this workshop, we will be concerned with three
main aspects of deposition discovery procedure:
1.
2.
Planning and supporting the questioning. Paralegals do not conduct depositionsa licensed attorney must examine the witnessbut paralegals can still have a role in the deposition itself.
Paralegals are routinely assigned to prepare an
outline of the subjects to be covered in the
questioning. Paralegals often attend depositions with their supervising attorneys and help
the attorneys locate facts and documents
needed during the questioning. Therefore,
even though they will not be the ones asking
the questions, paralegals need to understand
what the attorney is trying to accomplish, and,
to do so, must grasp the strategic considerations underlying deposition questioning.
3.
PREPARATORY STEPS
Before we can begin doing the paperwork necessary to arrange depositions, we must first deter-
461
SIDEBAR
Alternatives to Taking a Deposition
Depositions offer a useful way of discovering what
a witness will say, but they also have a few drawbacks.
One is that the opposing attorney must be notified of
a deposition in advance and will certainly attend.
Everything that we learn from the witness, our opponent also learns. Worse, the opposing attorney will
have the opportunity to contact the witness in advance of the deposition and possibly provide some
coaching. Also, the opposing attorney will get a
chance to watch us in action as we question the witness, and she is likely to come away with a good sense
of the strengths and weaknesses of our examination.
Third-party tapingeavesdropping on a conversation between other people when you are not a
participant in the conversation. For example, tapping a witnesss telephone line.
462
SIDEBAR
Alternatives to Taking a Deposition
Third-party taping without the consent of
all participants to the conversation is a criminal
offense under federal law and under the laws of
most states. Under certain circumstances law enforcement officers can obtain court permission
to eavesdrop on the conversations of suspected
criminals, but bugging is not an appropriate
tool in civil litigation.
Taping your own telephone conversation
without the other partys consent is legal under
current federal law, but illegal under the laws of
some states. Taping your own in-person, faceto-face conversation with someone is usually legal, so in most states it would not be a criminal
continued
Ordinarily, no party may schedule any depositions until after the initial discovery planning meeting required by FRCP, Rule 26(f);
see FRCP, Rule 26(d). [However, depositions
can be taken earlier if all parties agree to do
so, see FRCP, Rule 30(a)(2), or if the person to
be deposed is about to leave the country, see
FRCP, Rule 30(a)(2)(C).]
Each side may schedule depositions of up to
ten witnesses without court permission. All
the plaintiffs together make up one side and
all the defendants together make up the
other. To depose any more witnesses after
the tenth, a party must file a motion and ask
the court for permission [see FRCP, Rule
30(a)(2)(A)] or get the opposing party to
agree.
Unless the judge orders otherwise [and some
judges do incorporate quite specific deposition schedules into the scheduling order under FRCP, Rule 16(b)], after the discovery
planning meeting, each side is free to schedule its ten depositions at any time and in any
order desired; see FRCP, Rule 26(d).
Scheduling orders commonly include a discovery cutoff date after which neither side is
allowed to conduct further discovery. To take
a deposition after the discovery cutoff date, it
is necessary to ask the judge for permission.
The answer will almost certainly be no un-
Listing the Possible WitnessesHow can we decide who should be deposed? Our objective is to select the optimal list of deposition witnesses from all
of the people whom we might conceivably depose.
Who can be a deposition witness? There are very
few limitations. According to FRCP, Rule 30(a)(1), A
party may take the deposition of any person. . . . Certainly, anyone who could testify at trial can be deposed. Unlike interrogatories and FRCP, Rule 34, requests for production, we can use depositions to
take discovery from witnesses who are not parties to
the suit. If we attempt to depose a small child or a
person who is medically unstable, special arrangements may be required (such as a psychologist or
doctor in attendance). To depose a witness who resides in another state or country, we may have to
travel to the witnesss location. Additional procedural steps are required to depose someone who is
currently in prison. But, in general, the rules allow us
to depose whomever we wish, including corporations and other entities (see sidebar).
Given the fact that there is a limit to the number
of depositions we can take, how can we decide
which witnesses are the most important to depose?
You will sometimes see litigators simply start writing down names (shooting from the hip is an occupational hazard in litigation), but we can do better
if we attack the problem systematically. Instead of
relying on memory, we will prepare a list, as complete as we can make it, of every potential witness
we can think of. Then we can select the best names
from the list, and be reasonably confident that we
have not overlooked anyone. Our general strategy
is as follows:
1.
We begin by listing everyone whose name appears in the case file and in our notes. We list
each witness named in our opponents disclosure statement or answers to interrogatories.
We question our client carefully to identify
any other potential witnesses. As best we can,
we list anyone who may be in a position to
help either our case or, more importantly, our
opponents case. If there are potential witnesses whose names we do not know, we list
them according to their role (i.e., scrub
nurse who assisted operation). We can always get names later via discovery or
through investigation.
2.
We add to the list any corporations or other entities that we think may have useful information.
_________________________________________________
_________________________________________________
Step 1
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464
the rules of the court in which the case is pending (in federal court, the ten-deposition limit).
SIDEBAR
Deposing a Corporation or
Other Entity
A deposition is a live proceeding in which the
lawyers ask questions and the witness answers
them. Therefore, obviously, there must be a natural
persona live human beingto answer the questions. But suppose we are suing (or defending a suit
by) a corporation. Have we lost the ability to make
our opponent answer deposition questions?
No. FRCP, Rule 30(b)(6), expressly allows us to
issue a notice of deposition and subpoena to a
public or private corporation or a partnership or
association or governmental agency. . . . How can
a corporation testify? In the same way that it does
everything elsethrough human agents who are
empowered to act on its behalf.
When we issue a notice of deposition to a corporation or other entity, we must describe with
reasonable particularity the matters on which examination is requested. The entity must then designate one or more officers, directors, or managing
agents, or other persons who consent to testify on
its behalf concerning the topics specified. The designated spokesperson is to testify as to matters
known or reasonably available to the organization [FRCP, Rule 30(b)(6)].
3.
4.
Next, we go through the list carefully, considering each name in turn, and ranking the potential witnesses in order of importance.
5.
We decide how far down the scale of importance we need to go to prepare our case adequately. This is to some extent a judgment call,
but usually there will be a few witnesses at the
top of the list who clearly must be deposed,
and others near the bottom who clearly need
not be. The point at which we draw the line will
depend in part on what is at stake in the case.
We are willing to spend more money taking depositions in a $50 million commercial case than
in a $5,000 fender-bender. We will also have to
consider the restrictions, if any, imposed by
6.
From the highest priority names, we make a final list of the witnesses whom we will actually
try to depose.
malpractice case involving a botched surgical operation, we would depose any nurses,
anesthetists, and others present in the operating room.
Individuals directly involved in a disputed
transaction. In lawsuits arising not from physical events like accidents but from business
or financial disputes, there are not necessarily any eyewitnesses as such, but there are individuals who participated directly in the
transactions that led to the lawsuit. These are
prime candidates for depositions. Suppose,
for example, that you represent a client who
bought a used car from a dealership, only to
find out later that the cars odometer had
been rolled back to show much less than the
true mileage. In your fraud suit against the
dealer, it would be natural to depose the
salesperson who dealt directly with your
client.
465
Step 2
Once we have arrived at a final list of names of persons to be deposed, we must then decide where,
when, and in what order to depose them. These decisions depend on the circumstances of each individual case, but we can offer a few general guidelines, as discussed next.
466
SIDEBAR
Deposing Custodians of Records
We have learned how to use subpoenas and Rule
34 requests for production of documents to obtain
needed records from others. These tools, useful as they
are, have two major inadequacies: (1) They do not
give us any way of verifying that we are really getting
all of the documents we asked for, and (2) to use them,
we must already know what documents or categories
of documents to ask for.
Fortunately, we have at our disposal another tool
that can help us overcome both of these limitations:
the custodian of records deposition. As we have
learned, we can issue a subpoena to a business or entity, specifying the subject matter of the desired testimony, and the rules require the business or entity to
designate an individual to testify about that subject.
Here, we issue a subpoena in which the specified subject matter is the nature and contents of the records
kept by the business or entity. Often, this is done in a
kind of shorthand way by issuing the subpoena in the
name of, for example, Custodian of records of Ajax
Widget Corporation, and serving it on Ajax Widget
Corporation. Everyone understands that Ajax Widget
Corporation is to designate someone who knows
about its filing system and records to respond to the
subpoena. Your instructor will inform you of the customary way of noticing a custodian of records deposition in your locality.
Our purpose at the deposition is to find out everything we can about the way in which the entity keeps
its records. You may be wondering why we would
ticipants has a conflict with the date and time selected, too bad! He can ask the judge to order a different one. There is nothing specific in the federal
rules that prohibits us from scheduling depositions
for whatever reasonable dates and times we
choose, however inconvenient they may be for
other attorneys or for the witness.
As a practical matter, however, if we notice a deposition for a date when, say, the opposing attorney
is in trial on another case, she will probably not
bother asking the judge for a different date. Instead,
we will receive a letter politely informing us that no
one is going to show up on the date we selected.
Then it will be up to us to ask the judge to order that
the deposition proceed, which the judge cannot
very well do if opposing counsel has to be somewhere else that day. In the end, we will have wasted
a lot of time, annoyed the judge, and, most important, will not be any closer to getting the deposition
taken than when we started. Therefore, it usually
makes sense to try to coordinate deposition scheduling with the opposing attorney. Often, we can get
what we need by simply telephoning her secretary
and asking for open dates.
Must we also coordinate with the witness? Unless the witness is someone important such as a
doctor or government official, courts tend to display surprisingly little consideration for the witnesss schedule. Testifying is seen as a civic duty,
and the inconvenience of testifying is simply the
price of good citizenship! It is not unusual for
lawyers to serve a subpoena on a witness and expect him to drop everything and show up for a deposition or trial appearance 2 or 3 days later. Nevertheless, there is nothing to prevent us from
contacting the witness (as long as the witness is not
a party represented by an attorney) and trying to
accommodate his schedule. The witnesss testimony may turn out to be friendlier to our client if we
act with courtesy rather than arrogance.
The court reporters schedule usually presents
little problem as long as we are able to give reasonable advance notice. For depositions that we schedule, we select and pay the court reporter, and if our
chosen court reporter cannot accommodate us we
can always select a different one.
CLERICAL STEPS
Suppose we have decided to depose a particular
witness, and we have selected a date, time, and
place for the deposition. Let us now review the procedural steps that are necessary to make the deposition happen. These include giving the required
notice to other parties (Step 3) and ensuring that
the witness will attend (Step 4). We may also want
467
Step 3
468
copy of the notice of deposition to the court reporter firm. Or we may make arrangements with the
court reporter by telephone.
Court reporter fees comprise a significant part of
the cost of deposition discovery. The party noticing
the deposition pays for the court reporters services,
and for the original transcript to be filed with the
court. Court reporters typically bill at a fixed rate per
page of transcript; at this writing, customary West
Coast metropolitan area court reporter fees are upwards of $5 per double-spaced typed page. A typical
2- or 3-hour deposition can easily run well in excess
of 100 pages.
You may be wondering why the practice of taking down deposition testimony in shorthand continues, in an age of tape recorders, video cameras,
and even computers with voice recognition capabilities. In fact, the current federal rules allow us to
choose between sound, sound-and-visual, or
stenographic recording. Why not get out our video
camera, save hundreds of dollars, and, as a bonus,
finish up with a recording that reflects not just the
words spoken but also gestures, tone of voice, and
body language?
There are several reasons why court reporters
are unlikely to be rendered extinct by video cameras. One is that a deposition must be taken in the
presence of an officer authorized to administer
oaths by the laws of the United States or of the
place where the examination is held . . . [FRCP, Rule
28(a)]. Court reporters are authorized to administer oaths, and typically act as the FRCP, Rule 28, officer in addition to taking down the testimony. Certainly, we could find someone else authorized to
administer oathsappointment as a notary public
sufficesbut FRCP, Rule 28(c), prohibits anyone
who is an employee of any partys attorney from
presiding over a deposition, so we could not use
any of our own employees.
There are also certain advantages to stenographic recording over video. Experienced court reporters are able to distinguish and correctly transcribe words under conditions that would render
an electronic recording unintelligible, such as when
the witness is mumbling or facing away from the microphone, or when two people speak at the same
time. And video recordings record everything, warts
and all. If the attorney doing the questioning seems
to be struggling, pausing frequently, or saying
umm a lot, the resulting video may be rather unflattering.
As a practical matter, even when using sound or
video recording to take a deposition, most attorneys hire a court reporter to operate the recording
equipment. Most court reporting firms now offer
video recording as an option. Better to pay a court
Step 4
Step 5
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470
Step 6
The Paralegals Job in Preparing for a DepositionOur role as paralegals is to review thoroughly
all available sources of information, to address every
possible point on which the witness may have information to contribute. Ideally, our outline and the accompanying package of selected discovery documents should together comprise every bit of
information that the attorney needs to consult in
preparing for the deposition. There should be no
need for the attorney to dig through the file looking
for additional facts if we have done our job well.
How do we produce the desired outline? As
with most planning tasks in litigation, we will do
better if we look for topics in a systematic way
rather than relying on memory and trying to pick
topics out of the air. The issues outline is a good
place to start; we can review the issues point by
point, asking ourselves whether this witness is
likely to contribute anything on each issue. We may
also skim through the file, or at least the main pleadings, looking for ideas. As questions or topics of inquiry occur to us, we jot them down.
One of the most important sources of deposition
subject matter is the set of documents gathered in discovery. Any documents in which the witnesss name
appearsespecially any authored by the witness
should be set aside, copied, and considered as possible material to ask about in the deposition. Any documents describing events that the witness observed or
transactions in which the witness participated should
be set aside, as should any documents needing authentication by this witness. In a smaller case where
the quantity of documents is manageable, we may go
through the documents by hand looking for potential
deposition documents. In a complex case where the
discovery documents may comprise many thousands
of pages, it is impractical to review every document
for every deposition; better to set up a computerized
document retrieval database and enter all of the doc-
ument information into it as the documents are received. Then we can query the database for a list of all
the documents in which the witnesss name appears.
After we have reviewed the issues outline, the
case file, the discovery documents, and any other
likely sources of ideas, we pull our notes together
into a final outline for use by the attorney who will
conduct the questioning. We assemble copies of all
the pertinent documents and check to be sure that
we have included all relevant documents.
The Attorneys RoleHelpful though the paralegals outline is, it is not a substitute for proper preparation by the attorney who will conduct the deposition. The paralegals job is to make sure that no
important subject matter is overlooked; it is the attorney who must make the strategic decisions about
what questions to ask, what subjects to avoid, how
to phrase the questions, and in what order to cover
the topics. The attorneys final plan for the deposition, whether expressed in the form of an outline,
scribbled notes on a legal pad, on index cards (our
own preference) or in some other way, may bear
rather little resemblance to the paralegals outline.
From the attorneys standpoint, a successful deposition is the result of thorough preparation combined with a willingness to be flexible. As a litigation
paralegal, you will see many different styles of deposition questioning. New lawyers sometimes make
the mistake of trying to script a deposition as
though it were a stage production, writing out each
question verbatim. Others shoot from the hip with
little preparation. Neither extreme works very well.
Fail to prepare thoroughly enough, and we will forget to cover some important topic. Plan in too much
detail, and instead of following the witnesss answers wherever they lead, we will be trying to force
the testimony to fit our planned questions.
Our own preferred way of preparing for a deposition consists of writing broad topics on index
cards, one topic per card. On each card, we write a
short reminder of what it is we want to cover. Usually, we avoid writing out specific questions, but if
there are particular questions about a topic that we
want to be sure to word in a particular way, we may
write them on the card too, or write them on a separate card. We also note on each card any documents that we may want to refer to in connection
with the cards topic.
The advantages are several:
Step 7
Although paralegals do not conduct the questioning in a deposition, they do commonly attend and
assist. Here are some functions commonly assigned
to paralegals at a deposition:
471
Using ExhibitsOften, while questioning a witness in a deposition, we will want to refer to documents. These may be documents that we have already obtained through discovery or investigation
or from our client, or documents brought to the deposition by the witness.
We are free to refer to documents by naming or
describing them (i.e., the construction contract
or your divorce decree), but if we do that, it may
be hard to prove later on which document the witness was talking about. What we need is a way to
put a document into the deposition record so that
anyone referring to the transcript can see the
same document that the witness was looking at
when she testified. We do this by marking documents as exhibits.
To use an exhibit in a deposition, we first hand
the document to the court reporter to be marked.
The court reporter will stamp the document with an
exhibit stamp, write an exhibit number on it, and
note in the shorthand record a brief description of
the document. As a matter of courtesy, it is customary to provide copies of the document to the attorneys for other parties who are attending the deposition. We use the stamped copy to show to the
witness.
What sort of a numbering system is used for exhibits? The answer is up to the attorney, and varies
according to personal preference and local custom.
The question deserves some thought, however, particularly in cases involving large volumes of documents. If, for example, we let the court reporter
start numbering from Exhibit 1 in each deposition, and we take ten depositions, we will wind up
with ten Exhibit 1s. If we have to refer to deposition testimony involving several of these Exhibit
1s at trial, we may confuse the juryand possibly
ourselves. Our preferred solution is to assign numbers to the most important documents in a case sequentially, starting from one, before ever taking depositions, then use the same numbers for the same
documents in all the depositions, and, if the judge
will allow it, at trial. When we mark additional documents on the fly at a deposition, we start with
whatever number we left off with in our global numbering system. This means that, in a given deposition, the numbers may not start with 1 or run in
sequence, but we avoid having more than one document with the same exhibit number. This system
offers the added advantage of allowing us to refer to
documents by their global exhibit number while
preparing and taking notes.
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What to Expect at a DepositionLet us now describe the sequence of events at a typical deposition. We will assume that the deposition we are describing is one that we ourselves have noticed, and
that it will be held at the offices of our own law firm.
As the time for the deposition nears, we check
to be sure that the conference room we have reserved is in order and that our copies of documents
are ready to go. When the court reporter arrives,
the firms receptionist shows him to the conference
room to set up whatever recording equipment will
be used, typically a shorthand machine.
If the witness is an opposing party or someone
who is cooperating with the opposing party, she
will often arrive in the company of the opposing attorney. The receptionist will wait until the witness
and all of the attorneys expected to attend have arrived, then notify the attorney who will conduct the
deposition that all is in readiness.
Customarily, the court reporter sits at the head
of the conference table, so as to have the best vantage point from which to hear all participants. The
witness sits at one side of the table adjacent to
the court reporter. The attorney who will conduct
the questioning sits at the opposite side of the
table, facing the witness, and the assisting paralegal
sits next to the attorney. Usually, the opposing attorney sits next to the witness.
After introductions and, perhaps, a few moments of polite interchange of pleasantries, the proceeding begins by the court reporter swearing in
the witness. This is done in exactly the same manner as in court, with the witness raising her right
hand and swearing to tell the truth. Then the questioning begins.
The attorney begins by asking the witness to
state her name for the record. We would usually
also ask for the witnesss current address and telephone number, to make it easier to contact the witness in the future should the need arise. After these
identification questions, many attorneys ask
whether the witness has ever been deposed before,
and then describe the ground rules for the proceeding to the witness. Here is a typical introductory speech by an attorney taking a deposition:
Attorney: Have you ever had your deposition
taken before?
Witness: No.
Attorney: Let me begin by explaining a few
ground rules. I will be asking you a
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
are deposing someone who witnessed an auto accident; a good first question would be I understand
that you witnessed the accident that led to this lawsuitplease tell me what you saw. The next question, and the next one after that, for as long as it
takes to get the whole story, should be What happened next? We are much more likely to get testimony that we can use if we let the witness narrate
as much as possible, than if we try to force the testimony into our preconceived factual theories via
narrow questions.
In this respect, deposition questioning is much
different from cross-examination in court. You may
have heard or read the adage that, in crossexamining an adverse witness, a wise attorney never
asks a question unless the answer is known in advance. To violate this rule is to invite the witness to
drop some unexpected bombshell that may leave an
otherwise effective cross-examination in tatters. In a
deposition, however, we want bombshellsif there
is anything that the witness can say that can hurt
our case, we want to know about it here and now.
After the witness has been given ample opportunity to relate her story, we then back up to fill in
gaps and pin down details. While narrating, witnesses are often imprecise about times and locations; it is important to go back and ask the witness
when and where each event took place and who
else, if anyone, was present. The witness may have
referred to documents while telling her story; if so,
we need to mark them as exhibits and have the witness identify them on the record (see the Using Exhibits section in Step 8). Another useful technique
is to ask the witness to make a rough drawing or
473
map as an aid in clarifying where people and objects were situated during the events that the witness is describing; the drawing can be marked as an
exhibit and included in the record.
Notice that, so far, we have not even needed to
glance at our topic outline or noteswe are simply
following the witnesss narration wherever it leads.
Only after having the witness narrate her story in as
much depth and detail as possible, do we get out
our index cards or notepad and start asking specific
questions. Even then, our questions will likely have
to be reshaped to fit what the witness has already
told us. As we go through our notes, we are likely to
find that some topics have already been fully or partially covered in the witnesss narration. As we ask
questions to fill in the gaps, we may jump around
from topic to topic rather than proceed in a predictable order. If there are facts that the witness is
trying to keep from us, they are more likely to slip
out if the order of questioning is unpredictable, so
that the witness has less time to anticipate questions and engineer evasive answers.
While we are doing all this, the opposing attorney is not, of course, sitting quietly and letting us do
whatever we want. The opposing attorney has an
important role to play at a deposition, one that we
explore in the following sidebar.
Your Local Notes
_________________________________________________
_________________________________________________
SIDEBAR
Depositions: The Opposing Attorneys Role
The purpose of a deposition is to gather informationinformation that the opposing attorney may
not want brought to light. The opposing party can
use several weapons to prevent us from obtaining the
information we need.
Resisting Attendance
The opposing partys first line of defense is to try
to find some way to prevent the deposition from occurring at all. This will succeed only if there are valid
legal grounds for opposing the deposition, such as
procedural errors by the party who notices the deposition. If, for example, the notice of deposition fails to
conform to the limitations of FRCP, Rule 30(a)(2), or
the subpoena violates the geographic restrictions of
FRCP, Rule 45, or the deposition is not allowed under
474
SIDEBAR
Depositions: The Opposing Attorneys Role
the damaging testimony. Among other things, the opposing attorney may try these ploys:
CONCLUDING STEP
Step 8
Rule 32 and the Uses of DepositionsDeposition transcripts have a variety of uses in litigation,
so many that an entire rule (FRCP, Rule 32) is devoted to the subject. Here are some common uses:
continued
It is sometimes tempting, particularly to beginning lawyers, to set traps and confront deposition
witnesses with inconsistencies, much as we might
do in cross-examination at trial. Except in unusual
circumstances, experienced litigators resist the
temptation. Our purpose at a deposition is to gather
ammunition to be used at trialnot to waste it. The
idea is for us to find out what the witness will do at
trial, not for the witness to find out what we will do.
After covering all of our planned topics, it is
time to wrap up. Here, a break may be in order so
that the attorney can consult with the paralegal and
both can consider whether any important subject
matter has been overlooked. Then the attorney will
ask some concluding questions, designed to make a
clear record that the witness has told us everything
there is to tell. Examples:
475
SIDEBAR
Read and Sign?
FRCP, Rule 30(e), provides that the witness
shall have 30 days in which to review the transcript
and make a list of any corrections. The rule is not
intended to allow the witness to change an answer
that, in retrospect, the witness does not like (although witnesses have been known to try); rather,
the purpose is to allow for correction of errors by
the court reporter. If the witness does have changes,
the witness lists them on a form provided by the
court reporter and signs the form. The court reporter does not change the transcript, but does attach the list of changes at the end.
Under the rules of some state courts, the witness is to sign the deposition itself after reading it.
The federal rules no longer require signature. Under current federal rules, it is up to the witness
whether to read the transcript or not. In state
courts where the rules require the witness to read
and sign the deposition, the attorneys often stipulate to waive reading and signing, trusting the
court reporter to transcribe accurately. (Some attorneys, however, insist that the witness read and
sign, to prevent the opposing party from later
claiming that a troublesome answer was the result
of a court reporter mistake.)
476
Deposition OutliningWith word-for-word indices and searchable disk files available, you
might suppose that there would no longer be any
need for paralegals to wade through transcripts laboriously making outlines. Isnt modern technology wonderful!
Sorry. Computerized indexing is not a substitute for trained legal judgment. The computer can
locate words, but it cannot decide which ones are
important, nor can it assess meaning and relevance.
Someone who is properly trained and familiar with
the facts and issues of the case must read the transcripts, analyze the testimony, identify the questions and answers that may prove useful or need
follow-up, and preserve the analysis in such a way
as to allow the attorney to find needed testimony
quickly.
A common solution is to have a paralegal summarize or outline each deposition. In a typical deposition, even though the questioning may jump
around from topic to topic, we can identify blocks,
or short sequences of questions and answers, that
together add up to one main point. When we summarize a deposition, we try to express the main point
of each block in a few, well-chosen words. If possible
without sacrificing brevity, we use the same words as
the witness used, rather than paraphrasing.
There is no correct format for a deposition outline. We are preparing a tool for our own use and that
of our supervising attorney, and we are free to tailor
it to fit our needs. A certain customary layout is often used, but there is considerable local variation.
Commonly, a deposition outline has a narrow column on the left for the page and line number of each
entry, with the summary of the main point of each
chunk to the right. No effort is made to rearrange the
orderwe simply summarize the chunks in the sequence in which they appear in the deposition. (See
the Practice Pointers section at the end of this workshop for some samples.)
The trick to identifying the main point of each
segment is to focus not on the words, but on the relationship of the testimony to the issues in the case.
We ignore extraneous detail and facts that are not in
doubt. The main point that we would like to capture
in each segment is the tendency of the testimony to
prove or disprove some disputed issue.
Outlines of all the depositions in the case will go
into the attorneys trial notebook. Then, when it is
necessary to find the page where a witness talked
about a particular subject, the attorney can easily
skim through the deposition outlines. In a case
where the deposition testimony is extensive, it may
be desirable to prepare additional outlines where
the main points are organized by subject matter.
Obviously, the ways in which the standard layout
can be improved are limited only by our imagination and the amount of time available.
PREPARATORY STEPS
Step 1
Depositions: Learning
by Example
We will now apply the principles we have learned
by setting up deposition discovery in our hypothetical lawsuit, Martin v. Collins, on behalf of defendant Park Hotels Group. We will assume that the
Rule 16 scheduling conference has just occurred,
and that the discovery cutoff date is 6 months from
now. We have already received plaintiffs disclosure
statement as it appears in the Learning by Example
section of Workshop 12, and we are also aware of
the information described in the Learning by Doing
section of Workshop 12.
477
It goes without saying that Park Hotels attorney must depose Shannon Martin. She is both
the principal opposing party and one of only
two eyewitnesses to the incident that led to the
lawsuit.
Role
Plaintiff
Co-defendant, witness to incident
In charge of police investigation
Assisted in police investigation
Assisted in police investigation
Shared an elevator with defendant Collins
immediately prior to incident
Paramedics who responded to the scene and treated
defendant Collins; may have made observations
of plaintiffs hotel room and persons and objects therein,
and condition of defendant Collins immediately after
the incident.
Emergency room doctor, treated plaintiff
Plaintiffs primary care physician
Plaintiffs hand surgeon
Plaintiffs physical therapist
Anaesthesiologist during plaintiffs hand surgery
Plaintiffs psychiatrist
Plaintiffs employer
Plaintiffs supervisor
Hotel guests in nearby rooms
478
2.
3.
4.
5.
Step 2
Scheduling the depositions in this case is somewhat complicated because the participants are not
all located in one city. Obviously, Park Hotels attorney, whose office is in Phoenix, would prefer to
hold depositions at her own office to the extent pos-
2.
The witness may be willing to come to the attorneys, especially if the attorneys are willing
to pay the witnesss expenses (as well they
should be, since it is far cheaper to transport
one witness than three attorneys).
3.
What about the order and timing of the depositions? Our own preference is usually to depose
the principal opposing party first and as early as
479
CLERICAL STEPS
In Steps 3, 4, and 5, we prepare a notice of deposition and subpoena duces tecum. We have selected
the deposition of Network Software Solutions, Inc.,
for this example, since it allows us to illustrate the
procedure for deposing a corporation.
Step 3
)
)
)
Plaintiff,
)
)
v.
)
)
ARTHUR COLLINS and JANE DOE
)
COLLINS, husband and wife; PARK
)
HOTELS GROUP, INC., a Delaware corporation;
)
)
Defendants.
)
________________________________________________ )
Notice is hereby given pursuant to Rule 30, Federal Rules of Civil Procedure, that the deposition
upon oral examination of the person whose name and address appear below will be taken at date,
time and place indicated.
Name of Deponent:
480
A subpoena duces tecum is being served on the person to be examined. A copy of the designation
of the materials to be produced as set forth in the subpoena is attached hereto.
DATED this 21st day of June, 2000.
CRANDALL, ELKINS & MAJOR
Gail Stoddard
Attorneys for defendant Park Hotels Group, Inc.
(Certificate of service goes heresee Workshop 4 for details.)
Step 6
Step 4
Step 5
Preliminary questions
General description of Shannons position and duties
Were duties such that a broken finger would
prevent her performing them
Job performance, companys satisfaction
with her work
Expectations of continued employment/
advancement
When, based on nature of injuries, should she
have been able to return to work
Nature of Shannons compensation arrangement
Salary (objective: establish amount of monthly
income at time of injury)
Base amount at time of injury
Overtime
Average monthly compensation in months
leading up to injury
Fringe benefits
Amount/value
Were they cut off after injury
Identify and review pay records
Commissions (objective: establish how much
commission income she could reasonably
expect in the time period following the injury)
How computed
Average amount in months leading up to
injury
Number of clients on which based
Company policy re rights to retain clients
Expected commissions in period following
injury
Any changes in client base or other conditions affecting commissions
Identify and describe any documents pertaining to commissions
Nature/substance of any communications between
Shannon and company after injury, especially concerning:
Circumstances of her injury (what description
of the incident did she give her employer?)
Her ability to perform her duties/return to
work
Concluding questions
Step 7
CONCLUDING STEP
Step 8
481
Depositions:
Learning by Doing
For this workshop, assume you are a paralegal
working under the supervision of Roger Yarborough, attorney for defendant Collins. Assume the
482
lawsuit, Martin v. Collins, is pending in the U.S. district court having jurisdiction in your locality, and
that Mr. Yarborough practices in your city. Assume
Shannon lives and is employed in your city, and all
other witnesses are located as indicated in the
workshops where they appear. Mr. Yarborough assigns you to do the following exercises.
3.
4.
5.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
PRACTICE POINTERS
Summarizing Depositions
A number of different formats can be used for summarizing depositions. Because only one of those formats is discussed in this workshop,
some alternative formats are presented here in Figures W133 through
W137. Most importantly, however, remember that you should consult with
your supervising attorney to find out which format to use. Format preference in not only a matter of personal choice but is dependent on the purpose for which the summary is being prepared. Therefore, you should be
familiar with a variety of formats so that you have the flexibility necessary
to work with different attorneys under different conditions.
A narrative summary (Figure W133) is merely a summation of the
testimony but cannot be used as a reference tool because it does not refer to specific pages and line numbers in the deposition. It is used to summarize the testimony of minor witnesses or as an adjunct to other more
complete summations.
Testimony can also be summarized by subject matter (Figures W134
and W135). This method requires more time to complete and is especially helpful when the deposition is lengthy and complex. The beauty of
this approach is that it can greatly assist an attorney attempting to impeach a witness at trial because the attorney can zoom into a specific subject very efficiently.
In complex cases it is helpful to prepare an index, listing the main subjects by page number (Figure W136). This index can also be used by itself as a summary or to assist in accessing the more detailed summaries
described earlier.
483
PRACTICE POINTERS
Summarizing Depositions continued
To help track the deposition process, consider preparing a deposition
table (Figure W137). This table records the names of the deponents, the time
and location of their deposition, the names and phone numbers of the court
reporters, whether a transcript was received, and the status of the deposition
summary. Such a table enables you to see at a glance the status of each deposition and allows you to easily contact the appropriate reporter without going through the files.
TESTIMONY
Witness: Ellen Sayers resides at 2020 E. Central,
Tempe. Explanation of depo procedure.
PAGE
LINES
119
1022
6
14
615
220
1624
484
TESTIMONY
Educational Background: B.S. Chemistry1973 from ASU; M.D.1980
from UofA; residency at Good Samaritan Hosp. in Tucson
Initial exam of Pl. showed Pl. was highly agitated and difficult to talk to.
Pieced together story of assault but had hard time focusing Pl. on chronology
of events. Did cursory physical exam and observed no external signs of injury.
Drs initial assessment of Pl. was that she was suffering from type of post-traumatic
stress disorder. Defined this disorder.
Conducted follow-up exam of Pl. one week later. Found Pl. to be calmer and easier
to relate to. Described sequence of events in this exam.
5
6
(Alternatively, this summary can be further defined using line numbers as well.)
PAGE
LINES
TESTIMONY
110
1116
Initial exam of Pl. showed Pl. was highly agitated and difficult to talk to.
Pieced together story of assault but had hard time focusing Pl. on
chronology of events.
Did cursory physical exam and observed no external signs of injury.
1721
PAGES
Assault
At moment of entry
Before entry
Contact with Collins
During Collinss undressing
17, 1920
16, 18
17, 2123
2429
Injuries
Finger
Head
Insomnia
Panic disorder
Shock
Treatment
Emergency room
General physician
Psychiatrist
Work History
Sales manager
Sales rep
Training
4, 7, 31, 36, 40
4, 8, 32
5, 7, 3233
31, 3436
4, 22, 3637
4041, 44
44, 46
45, 47, 4850
9, 12, 15
4, 6, 20, 28
10, 12
485
TIME
PLACE
COURT
REPORTER
TRANS
RECD
SUMMARIZED
Dr. Sayers
4/1/99
1:00 pm
St. Lukes
Hospital
no
no
Dr. Collins
2/2/99
8:00 am
Our office
yes
yes
Officer Flanigan
3/24/99
9:00 am
DPS Office
yes
no
Det. Marnell
3/27/99
3:00 pm
DPS Office
Ginny
Bush
945-6670
Sammy
Smith
966-4312
Craig
Monroe
465-9911
Craig
Monroe
465-9911
yes
yes
TECHNO TIP
In many firms that do a lot of litigation,
specialized software is used to help
manage documents and data obtained
in discovery, including depositions.
One company that has won widespread acceptance of its product is
Summation Legal Technologies, Inc. If
you visit its site at www.summation.
FORMS FILE
Include samples of the following in your forms file:
Notice of deposition
Subpoena duces tecum
Deposition summary (try to get several different types)
KEY TERMS
Deposing
Notice of deposition
Noticing a deposition
Witness statement
Introduction to the
Motion Practice
Workshops
In a typical lawsuit, the judge must make a number
of decisions as the case progresses. As a general
rule, the judge is not the one who determines which
decisions need to be madeit is up to the attorneys
to select the appropriate issues and submit them to
the judge for decision.
The attorneys do this by presenting motions. A
motion is a formal request to the court for an order.
An order is an official pronouncement by the judge.
It may, as the word order implies, require someone
to do something. More commonly, an order may
merely recite a decision that the judge has made.
To be effective in using motions to advance our
cases, we need to develop three main skills:
1.
2.
3.
haps a majority of the motions filed: discovery motions and early-stage defensive motions.
Discovery enforcement, the subject of Workshop 15, provides a convenient point of departure
because it allows us to explore motions procedure
and strategy in the context of a subjectdiscoverywhose rules are already familiar. Also, the situations calling for discovery motions are relatively
easy to identify, making this a good area in which to
begin developing the skill of recognizing when a particular motion is called for.
The theme of Workshop 16 is the process of refinement that takes place as a lawsuit moves from
the pleading stage toward trial. Some of the claims
and defenses asserted in the complaint and answer will turn out to be incorrectly stated, unprovable, or otherwise flawed. The procedural
posture of the case may be incorrect, due to errors
or unforeseen circumstances. There may be disputes over admissibility of evidence, scheduling,
procedural requirements, or other administrative
matters. By the time the trial date arrives, all of the
defective claims and defenses need to be weeded
out, and all of the disputed issues that can be decided beforehand need to be decided, so that the
trial can proceed smoothly and efficiently. It is by
the use of motions of various kinds that we accomplish these things.
So as to keep the discussion within manageable
bounds, and to illustrate the thought process underlying motion strategy, we have chosen to focus
our main attention in Workshop 16 on the motions
available to a defense attorney in the early stages of
a lawsuit. We will also bring in via sidebars a few
other common motion types that do not fit perfectly
within that main theme but that are important
enough to deserve some mention.
488
MOTION TYPE
DESCRIPTION
BASIS
Discovery Motions
Motion to compel
Rule 37
Rule 37
Rule 26(c)
Motion to strike
Asks the judge to dismiss one or more claims (or the entire lawsuit). Usually made when a required element of a
claim is left out of the complaint. Can also be made when
there are certain procedural defects in plaintiffs case
(i.e., lack of jurisdiction). (Covered in Workshop 16.)
Asks the judge to strike a defense from the defendants
answer. Can be thought of as like motion to dismiss, except that it challenges defendants defenses instead of
plaintiffs claims. Sometimes made when defendant has
failed to plead a defense correctly. (Discussed in
Workshop 16.)
Asks the judge to enter judgment for or against one or
more claims, without a trial. To succeed, the moving
party must persuade the judge that the evidence is so
clear that there is no genuine issue of material fact.
(Covered in Workshop 16.)
Rule 12(b)
Rule 12(f)
Rule 56
Asks for permission to file an amended complaint or answer. Under FRCP, Rule 15, judges are to be liberal in allowing amendments. Made when a party becomes aware
Rule 15
The list is based strictly on the authors experience. The authors are not aware of any available sources
of statistics on the frequency of motions by type in federal civil cases. But see
teddy.law.cornell.edu:8090/questata.htm for a searchable database of general statistics on lawsuits, from
which are derived some of the conclusions stated in the table.
MOTION TYPE
DESCRIPTION
489
BASIS
Motion in limine
Motion to continue
(and similar scheduling
motions)
Motion for pretrial conference
Rule 12(e)
Judges inherent
power to make
evidentiary rulings
Local rules
Rule 59
Rule 50
Rule 60
14
How to Present
a Motion
WORKSHOP
INTRODUCTION: SIGNIFICANCE
OF MOTION PRACTICE
492
Be in writing;
Have a caption and, by implication, follow the
other format rules for filed court papers (see
Workshop 4);
Be signed by the attorney making the motion;
State what it is that we are asking the judge to
do (set forth the relief or order sought); and
State why the judge should do it (state with
particularity the grounds therefor).
By requiring a memorandum of points and authorities. FRCP, Rule 7(b), tells us that we
must state the grounds for the motion, but
does not specify how or where to do so. Local
rules provide more specific guidance.
By specifying time limits for response and reply. In some districts, a response is due a
mere 5 days after the motion is served; others allow as much as 30 days. Many judges enforce time limits strictly, and rule on motions
summarily (usually in favor of the moving
party) if the response date arrives and no response has been filed.
Example: A response and brief to an
opposed motion must be filed within twenty
days from the date the motion is filed. . . .
Unless otherwise directed by the presiding
judge, a party who has filed an opposed
motion may file a reply brief within fifteen days
from the date the response is filed. (Source:
Local Rule 7.1, Northern District of Texas.)
DRAFTING STEPS
It is convenient to think of a motion filing as comprising three pieces: (1) the motion proper, a short,
formal statement of what we are asking for; (2) the
memorandum, typically a longer document in
which we lay out our argument; and (3) the attachments, consisting of any supporting papers that we
are required to submit with the motion.
The exact way in which these pieces are assembled varies somewhat from one jurisdiction to
another, and it is worthwhile to respect local cus-
493
Step 1
494
How the motion body and the memorandum relate to each other varies considerably according to
the customs of each jurisdiction. In what is perhaps
the most common permutation (and the one we will
follow), the motion and memorandum are each
complete, separate, self-contained court papers,
each with its own caption, signature line, and certificate of mailing. In some jurisdictions, the preferred practice is to combine the motion and memorandum in a single document, with a single caption
and certificate of mailing (but perhaps with separate signature lines for the motion and memorandum). In still others, the motion and memorandum
are combined but a separate notice of motion is required. Unfortunately, local rules rarely cover layout details of this kindother practitioners motions are the best source of guidance.
Step 2
SIDEBAR
Confer before Filing
A growing number of federal district courts have
adopted local rules requiring a litigant to confer
with her opponent before filing a motion. District
of Oregon Local Rule 7.1 is typical:
(1) The first paragraph of every motion must certify that: (A) The parties made a good faith effort
through personal or telephone conferences to resolve the dispute, and have been unable to do so;
or (B) The opposing party willfully refused to confer.
(2) The court may deny any motion that fails to
meet this certification requirement.
Confer before filing rules originated as a mechanism for reducing the glut of discovery motions
clogging the courts. The theory is that the attorneys ought to be able to reach reasonable compromises on many issues instead of involving the judge
in routine procedural disputes. Skeptics may doubt
whether many motions are avoided by such rules;
more often than not, in the authors experience,
their effect is merely to add another hoop for the
moving party to jump through, delaying resolution. Nevertheless, the trend is in the direction of
broader adoption of confer before filing rules, so we
as litigators and litigation paralegals must take
care to comply with them.
Writing to PersuadeOur goal in writing a memorandum is to convince the judge to do somethingusually something that our opponent will
not like. Everything about a memorandumstyle,
layout, format, choice of words, and especially organization and content of argumentmust be de-
Concentrate mainly on fairness, not legalities. Arguments citing endless legal authorities, aimed at showing through laborious logical gymnastics that the law requires the
result that we want, are rarely enough. The
opposing party can always (well, almost always) find legal authorities contrary to ours.
If we can convince the judge that ruling our
way is the right thing to do, and provide at
least enough legal authority on which to hang
a decision in our favor, we will win. If the
judge concludes that ruling the way we want
would be the wrong thing to do, we will lose,
regardless of how logically compelling our arguments may be.
Nevertheless, research the law thoroughly. If
our opponent is able to cite controlling case
495
B. Causation
B. Defendant Did Not
Cause Plaintiffs
Injuries
B. It Was Defendant
Collins, Not Park
Hotels, Who Broke
Plaintiffs Finger
496
should be able to skim our Summary of Argument section in less than a minute, and come
away with a reasonable understanding of the
argument we are making in the memorandum.
(Although it begins the memorandum, we usually prefer to write this section last, when we
have the details of our argument more clearly
in mind.)
2.
3.
497
SIDEBAR
Backing Up What We Say
An argument consists of a series of statements that we
hope leads to a logical conclusion. For the conclusion
to be believable, all of the statements on which it is
based must be true.
A memorandum in support of a motion is a written argument. The validity of the conclusionthat the
judge should make the ruling that we are asking for
depends on the reliability of the statements or assertions leading to it. In a legal argument, the supporting assertions are of two main kinds: (1) statements of
factthat is, statements describing some situation or
event; and (2) statements of legal principlesstatements whose purpose is to establish the legal rules applicable to the situation.
The judge will not take our word for it that the
statements we make in an argument are true. It is up
to us to back up everything we say. Each factual assertion we make in our memorandum must be supported with evidence. Testimony of a witness (an affidavit or excerpt from a deposition) is evidence;
documents can be evidence (but we will still need testimony of a witness to establish the genuineness and
admissibility of the documents). Usually, we submit
copies of the evidence needed to support our factual
Step 3
498
to, so that the judge can find it with the least possible expenditure of time and effort.
Where there are multiple attachments, they
should be separated using colored or tabbed dividers, and referred to by number or other suitable
designation. A common way to do this is to number
the attachments sequentially, and refer to them by
number in the body of the argument. Consider, for
example, the following excerpt from a hypothetical
memorandum:
. . . Defendant Collins then threw himself on
top of plaintiff, wrenching the pistol from her
hand and breaking her finger. See Affidavit of
Shannon Martin dated November 19, 2000,
Attachment 4 hereto, at paragraph 14. . . .
Now if the judge wants to see exactly what the affidavit says, he or she can easily locate the tab or divider for Attachment 4 and find the cited passage.
The person whom we are targeting with our attachments is, of course, the judge. It is improper,
however, to submit documents in support of a motion without providing copies to the other litigants.
Whatever package of attachments we provide for
the judge, we must include the same package when
we serve the motion on the other parties. If, in the
judges copy, we included tabbed dividers or highlighted certain passages, we must do the same in
the copies served on other parties.
Whether we include the attachments in the
package we file with the clerk of the court depends
on local practice. In some courts, to reduce the volume of paper flowing through the clerks offices, attachments to motions are included with the judges
copy of a motion, but not with the copy filed with
the clerk. The judge will discard his copy of the motion papers as soon as the motion is decided, and
thereafter only the motion and memorandum will
appear in the clerks file.
Your Local Notes
_________________________________________________
_________________________________________________
CONCLUDING STEPS
When we have assembled our motion papersmotion, memorandum, and attachmentsinto a complete package, it is time to submit the motion to the
court for a decision. In all courts, this entails at
least filing the motion papers with the clerk and
serving copies on the other parties to the suit (see
499
SIDEBAR
Responding to a Motion
Writing a response to a motion is a good deal like writing a motion. You might suppose that a response
memorandum would be devoted mainly to answering
the arguments made in the motion you are responding to, but such is not the case. To write a good response to a motion, imagine that you are writing a
new and separate motion, asking the court to do the
opposite of what is asked for by the motion to which
you are responding. It is appropriate to challenge the
moving partys arguments if doing so will help advance your own argument. But the purpose of a response is not to offer a point-by-point refutation of the
moving partys memorandum. The purpose of a response is to present an argument that will persuade
the court to deny the motion.
The Mechanics of Response Writing
The format and layout of a response is similar to that
of a motion, except that we would not include a part corresponding to what we have called the motion proper
the boilerplate preamble that recites what the motion is
asking for. Unless local rules or customs require otherwise,
a response should consist of the response memorandum
and attachments to it, if any. Everything that we have
said about writing the memorandum in support of a motion applies equally to a memorandum opposing a motion, and the organization is similar: a summary of argument, a section on factual background, an argument
with headings and subheadings, and a conclusion.
Arguing the Facts in a Response
With some motions, the main disagreement may
be over a legal issueboth sides may agree on what
the facts are. If so, there is no need to repeat them in
detail in the response. Nevertheless, if the motion is
written well, the presentation of factual background
will be slanted in subtle ways to favor the moving
partys argument. Therefore, a response should almost
always include its own version of the facts deemed important, reshaped to favor the responding party.
Step 4
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serve all other parties, not only the opposing parties. If, for example, we represent one defendant
out of several, we must serve copies of our motion
papers not only on plaintiff but on the other defendants as well.
We file the original motion and memorandum
with the clerk of the court. FRCP, Rule 5(d), provides All papers after the complaint required to be
served upon a party, together with a certificate of
service, shall be filed with the court within a reasonable time after service. . . . Whether or not we
include the attachments, if any, in the materials
filed with the clerk depends on local practice.
In some jurisdictions, we also serve a copy of
the motion papers on the judge who will decide the
motion. See Step 5.
Step 5
Step 7
Step 6
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Analyze Response
and Prepare Reply
After we have filed our motion and docketed the response date and hearing date, if any, there is nothing to do until the response arrives. When it does,
we analyze it carefully to assess how best to reply.
A reply memorandum should do more than
merely counter the arguments made in the response. If we devote the entire reply to the points
raised by our opponent, we are simply focusing the
judges attention on our opponents arguments. To
prepare a reply, we begin by reviewing our own motion. We note how our opponent has responded to
each of our arguments, with special attention to the
points that our opponent has failed to answer.
The reply should first briefly reiterate the reasons why the court should grant our motion. We
review the main points made in our motion, one by
one. If our opponent has failed to answer any of
our arguments, we call attention to that fact, and
take the opportunity to reemphasize the now
undisputed point. As for the arguments that our
opponents response does address, we first restate
concisely our own position and summarize the
reasons supporting it; then we show why our opponents counterargument is invalid; then we reiterate our own position, which we have now shown
to be superior to that of our opponent. In this way,
we recast the debate in terms that favor our position, instead of letting our opponent set the focus.
The format of a reply, like that of a response, is
not usually specified precisely in the local rules. Unless local rules or customs dictate otherwise, our
502
preference is to launch into the argument immediately below the caption, rather than take up valuable
first-page real estate reciting that we hereby reply to
plaintiffs response to defendants motion for, etc.
a fact that is obvious from the title of the document.
A reply memorandum should be short, as befits
its purpose, which is to allow the moving party to address any new issues raised by the response. You may
sometimes see someone deliberately save the best argument for the reply, so that the opposing party has
no opportunity to respond to it. This tacticknown in
the vernacular as sandbaggingis a breach of litigation etiquette, and risks a good scolding by the
judge. A well-written reply should address any damaging points made in the response, but do so in the
context of reemphasizing the high points of the moving partys argument and recasting the focus of the debate on the moving partys terms.
Step 8
If the court hears oral argument on a motion, an attorney must make the presentation. Paralegals can,
however, attend motion hearings to observe and assist. Paralegals can also assist the attorney with the
preparation of the argument.
Good preparation for a motion hearing entails
becoming as familiar as possible with every detail of
every issue addressed by the motion or response.
Motion hearings are very unpredictable; an attorney
arguing a motion must be prepared for anything.
Sometimes, the judge will have read the motion
papers thoroughly and understood the issues perfectly, and will begin the argument by asking if either
attorney has anything to add to what is in the written
filings. If either attorney stands up and begins repeating what is already in the motion papers, the judge is
likely to interrupt, sometimes not too politely.
At other times, the judge may not have even
looked at the motion papers before the hearing, and
will be surreptitiously skimming them as the attorneys present argument. Then it is essential for the
attorney to cover the main points in oral argument.
The rules governing who speaks when are also
often unpredictable. In theory, the moving party
speaks first; then the responding party responds;
then the moving party has the last word. However,
real-life oral arguments seldom follow the prescribed pattern. For one thing, many judges interrupt with questions during argument. Skilled attorneys welcome the judges questions, because they
reveal which arguments the judge is finding most
persuasive or unpersuasive. More troublesome,
however, are interruptions by the opposing attorney. Some judges allow attorneys to get away with
frequent interruptions of their opponents arguments, to the point that it becomes necessary to retaliate in kind to avoid having the argument dominated by ones opponent.
The attorney presenting oral argument must be
prepared not only to lead the judge through the
main points of the motion, but to answer probing
questions about any detail, perhaps while fending
off interruptions by opposing counsel. It goes without saying that the arguer must be thoroughly familiar with his own motion papers, and those of the
opposing party, but that, alone, is not enough.
Judges questions may also delve into the specific
facts of the cases cited in either the motion or the
response; into the wording of statutes or rules
whose interpretation may be at issue; into the
pleadings or other papers in the court file; and into
the factual particulars of the documents, if any, attached as evidentiary support for the motion.
The paralegals main role in this preparation is to
assemble all of the necessary materialsmotion papers, attachments, copies of cases and statutes, and
any other documents that may be helpfuland to
package them in such a way as to facilitate the attorneys review. Some attorneys find it helpful to have
these materials organized in a three-ring binder, so
that all of the pertinent papers are at hand in one place.
At the motion hearing, the paralegal can be
most helpful by standing ready to retrieve needed
items quickly. If, for example, the judge asks a question about one of the cases cited, the paralegal
should be able to produce a copy of the opinion,
preferably with the important passages highlighted. The paralegal should not, however, interrupt the attorney while the argument is under way,
even while the opposing attorney is speaking.
Step 9
If a hearing is held on a motion, the judge may announce a decision at the conclusion of the hearing. Often, however, the judge will take the decision under advisementthat is, defer the ruling until later, perhaps
to allow time for further reflection, or perhaps merely
to avoid the awkwardness of having to give the losing
party the bad news in person. In that case, or if the
court does not hear oral argument, the court must notify the attorneys of the ruling after the judge has decided. Usually this is done by issuing a minute entry.
Herein lies a potential dilemma for the litigants.
A motion ruling, particularly on a dispositive motion
such as a motion for summary judgment, can have a
huge impact on our case. We do not want to waste
time conducting discovery and preparing for trial on
some issue that may be foreclosed by the judges rul-
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504
DRAFTING STEPS
Step 1
Even though the rule does not require it, some attorneys would telephone opposing counsel to inquire
whether consent to the amendment might be given,
before going to the trouble of filing a motion. The
drawback to doing so is that opposing counsel will
likely want time to confer with her client before giving
an answer, and the process will deteriorate into a
game of stalling and telephone tag. Also, if opposing
counsel consents, we will owe a favor. For these reasons, we would usually file first, get the clock running
on the response, and let opposing counsel offer to
consent to the amendment if she wants to.
Our motion is shown in Figure W141.
Step 2
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
)
MOTION FOR LEAVE TO
AMEND ANSWER
Defendants.
___________________________________ )
)
)
Defendant Park Hotels Group, Inc. respectfully moves pursuant to Rule 15(a), FRCP, for an order
of the court granting leave to file an amended answer in the form accompanying this motion.
This motion is based upon the accompanying memorandum of points and authorities.
RESPECTFULLY SUBMITTED this 25th day of April, 2000.
CRANDALL, ELKINS & MAJOR
__________________________
Gail Stoddard
Attorneys for defendant Park Hotels
Group, Inc.
(Certificate of mailing goes heresee Workshop 4.)
505
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
OF MOTION FOR LEAVE TO
AMEND ANSWER
)
)
Summary of Argument
1. Nevada statute provides that a hotel is not liable when a guest is injured by a third person not
employed by the hotel, unless the injury is foreseeable. Nev. Rev. Stat. Ann. 651.15.
2. Nevada has the most significant relationship to plaintiffs claims which arise from events at a
Nevada hotel. Defendants liability is to be determined according to Nevada law.
3. Defendant seeks leave to amend its answer to add this statutory affirmative defense. FRCP, Rule
15(a), provides that such leave should be freely given.
Argument
1. Factual Background: Plaintiff Was Injured By Another Hotel Guest: The Circumstances Were Unforeseeable.
Plaintiff, while a guest at the Las Vegas hotel operated by defendant Park Hotels Group, had her
finger broken by another hotel guest, defendant Collins. The incident occurred in plaintiffs room; the
evidence is conflicting as to how defendant Collins came to be there. There is, however, no evidence
whatever that defendant Park Hotels Group. . .
Defendants.
II. Nev. Rev. Stat. Ann. 651.15 Provides A Valid Affirmative Defense To Plaintiffs Claims Against Defendant
Park Hotels Group
Defendant Park Hotels Group seeks to amend its answer to assert a statutory affirmative defense
arising under Nevada statute. See Nev. Rev. Stat. Ann. 651.15, discussed in detail infra.
A. Nevada Law Determines The Rights And Liabilities Arising From These Injuries Occurring At A
Nevada Hotel.
The liability of defendant Park Hotels Group is to be determined by Nevada law. Plaintiffs injury occurred
in Nevada, while plaintiff was a guest in a Nevada hotel, and was inflicted by another hotel guest.
Arizona courts apply the most significant relationship test to determine which states law should
be applied in a tort action . E.g., Bill Alexander Ford, Lincoln Mercury, Inc. v. Casa Ford, Inc., 187 Ariz. 616,
931 P.2d 1126 (Ariz.App. 1996). Clearly, Nevada is the state with the most significant relationship
continued
Rule 1.10(e), which limits size of the memorandum to fifteen (15) pages, exclusive of attachments and any required statement of facts. This
is a simple motion; the memorandum should not
exceed 3 or 4 pages.
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Step 3
CONCLUDING STEPS
Step 4
Step 5
507
Step 6
Step 7
District of Arizona Local Rules 1.10(c) and (d) provide for the party responding to a motion to file and
serve a responsive memorandum, after which the
moving party may file a reply memorandum. Except for the title, these memoranda are identical in
format and appearance to the memorandum in support of the motion shown under Step 2 earlier. Under District of Arizona Local Rule 1.10(e), a reply
memorandum is subject to a shorter page limit (10
pages).
Step 8
Because nondispositive motions are decided without oral argument under District of Arizona practice, no preparation is necessary.
Step 9
508
f.
g. When a motion for leave to amend a pleading is granted, is it necessary for the moving
party to then file the amended pleading
with the clerk, or does the attachment of
the amended pleading to the motion suffice?; and
Now it is your turn. Your assignment for this workshop is to begin with the excerpts from the motion for
leave to amend as shown in the preceding Learning
by Example section of this workshop, and produce a
finished set of motion papers conforming to the rules
and customs of the U.S. district court of your locality.
(At your instructors option, the state court of your
locality may be substituted.) Assume the following:
You are a paralegal in the office of Gail
Stoddard, who represents Park Hotels Group,
Inc. The firms office is in your city (make up a
suitable address). The lawsuit, Martin v. Collins,
is pending in the U.S. district court having
jurisdiction in your locality. The other facts of
the hypothetical are unchanged. You have
discovered Nev. Rev. Stat. Ann. 651.15
(reproduced in full in the preceding Learning by
Example section), and Ms. Stoddard has
assigned to you the task of preparing a motion
for leave to amend Park Hotels answer to add
the statutory defense.
4.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
2.
PRACTICE POINTERS
Writing Tips: Using Transitions
and Providing Clear Explanations
The preparation of effective motions requires clear, concise writing. Such
writing is effortless to follow and assists the reader in connecting one thought
with the next. Although this sounds obvious, it is all too easy to assume that
the reader will understand why you shifted from one idea to the next. After all,
by the time you commit your thoughts to writing, your thought process is so
self-evident to you that explanation seems unnecessary. Remember that readers have not been privy to your analytical maneuvering. They need direction
every step of the way.
Use transitional words and phrases to provide that direction. Imagine that
you are laying a footpath for the reader to follow. Every step should be clearly
set so that all the reader has to do is to follow your verbal signs. Examples of
such verbal signs are:
Additionally
Although
Because
Even though
First (second, third, etc.)
For example
Furthermore
However
In spite of
Moreover
Next
On the other hand
Therefore
To illustrate
To the contrary
Whereas
While
Incorporate these words into your writing. Use them at the beginning of paragraphs and to transition from one thought to the next within a paragraph. Ask
yourself as you go from one paragraph to the next what the connection between the two paragraphs is. Then use the appropriate word or phrase to indicate that connection.
You can also assist readers in moving from one idea to the next by summarizing what you have just said. This summary gives readers some closure
and allows them to assimilate what has been discussed in capsule form. Frequent summaries assist in teaching readers the material previously presented before confronting them with new information.
Similarly, you may anticipate what you are going to discuss by offering
readers a brief preview. Such a preview allows readers to glean the essence of
what is to be discussed in detail. This technique allows them to transition into
new territory with less trepidation because they have been prepared in advance. They also know specifically what to look for as they read.
Although transitional phrases provide road signs for your reader to follow, you still must consciously focus on explaining your thought process
every step of the way. Lack of explanation is one of the primary flaws in legal
writing. Once writers have thoroughly researched and pondered an issue,
they tend to forget the cognitive steps taken in reaching the conclusion and
assume that anyone would necessarily follow the same steps.
Good writing is just like any other art. It should appear simple to the observer. Figure skaters, dancers, gymnasts, and other athletes and performers
509
510
who are highly skilled are a joy to watch because what they do looks deceptively easy. Good writing shares that deception. Because readers find the reasoning simple to follow, they conclude that the subject matter is simple and
that the conclusions are inescapable.
One of the purposes of preparing motions is to educate the judge. You can
best do that by explaining each step so carefully that the judge cannot possibly go astray. You do not want the judge wondering how you went from Step
A to B. Rather you want to lay out your thinking so clearly and plainly that
even a novice to the law could understand your reasoning. Remember that
judges cannot honor requests they do not understand and will not honor requests for which they can find no legal basis.
TECHNO TIP
When you are on the Internet you may
notice that the speed at which you
communicate varies. Somedays large
files are downloaded with ease. On
other days it seems that it takes forever
to download a small file. Communication speeds are constrained by two factors: the speed of your modem and
how fast the site you are looking at can
respond to you.
In the late 1990s, the standard
modem operated at a maximum of
56,000 bits per second (bps). Since
ASCII characters are sent in 8-bit
blocks, such a modem can send 7,000
characters per second. If your modem
operates at 9,600, 14,400 or 28,800
FORMS FILE
Summarize the local rules and customs in your jurisdiction
governing the submission and preparation of motions. Make sure
this summary is complete enough that when you are called on to
draft a motion, you can refer to it without having to reference each
specific rule.
KEY TERMS
Movant
Moving party
Notice of motion
Respondent
Responding party
Discovery Motions
15
WORKSHOP
Among the interrogatories that your opponent has just served are several that call for
information that is only marginally relevant,
and will require hundreds of hours of work to
compile.
Your client is being sued by a neighbor whose
child claims to have been bitten by your
clients dog. The opposing attorney has just
served a subpoena on your clients accoun-
The Responding Partys WeaponsWhen a discovery request asks for too much, what are the responding partys options? Here are the main ones:
Not responding: The party who receives an improper discovery request could simply ignore it. We
mention this by way of pointing out that it is a poor
choice. The rules require us to respond to all discovery requests, however flawed or improper they
may seem. Furthermore, a party who fails to serve
any response to a discovery request within the response time allowed by the rules may be held to
have waived any objections. Then the judge may order the party to respond to the request, even
though an objection might otherwise have succeeded.
Objecting: The best strategy for dealing with
garden-variety overreaching in a written discovery
request is to serve a response objecting to the offending item and stating the reasons why the request is improper. By objecting, we avoid turning
over the disputed information to our opponent. This
leaves our opponent with the option of abandoning
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(8)
513
SIDEBAR
A Federal Judges Point of View on Discovery Disputes
To the federal judiciary, discovery motions are a
source of considerable frustration. Consider what
Judge Wayne D. Brazil had to say in In re Convergent
Technologies Securities Litigation, 108 F.R.D. 328
(N.D.Cal. 1985):
514
sanctions. The underlying idea is that sanctions are possible only if the responding party
has made no response. If there has been some
response, even if it is incomplete or inadequate, a motion for sanctions is not the remedy.
2.
Assess attorneys fees. Park Hotels attorneys spent time and money filing a motion
to compel, filing a motion for sanctions,
and conducting the discovery and investigation by which they discovered the identity of the original psychiatrist. Naturally,
they billed Park Hotels for the time and expenses. The judge can make Shannon pay
for these fees and costs [and, indeed, is
probably required to do so under these hypothetical factssee FRCP, Rule 37(b)(2),
last paragraph].
Make factual rulings. Here, for example, the
judge could enter an order finding as a fact
that Shannon did not suffer any psychological trauma; see FRCP, Rule 37(b)(2)(A). The
idea here is to deter parties from hiding adverse facts via the threat that, if the deception is caught, the facts will be made even
more adverse.
Disallowing designated evidence. The judge
could, for example, enter an order prohibiting Shannons attorney from calling any psychiatric witness other than the one whose
identity he attempted to conceal; see FRCP,
Rule 37(b)(2)(B).
Prohibiting any evidence on particular claims
or defenses. The judge could enter an order
prohibiting Shannon from introducing any evidence to support her claim of psychological
trauma; see FRCP, Rule 37(b)(2)(B).
Striking claims or defenses. The judge could
enter an order completely striking Shannons
claim for damages for psychological trauma
from the complaint.
Rendering judgment. The judge could dismiss
the lawsuit and render judgment for Park Hotels. (This is a relatively severe punishment,
typically imposed only in unusually compelling situations.)
Holding the offending party or attorney in contempt of court. The judge could hold Shannons attorney (and Shannon too, if the judge
found that she deliberately participated in
the decision to disobey the courts order) in
contempt of court. Although it rarely happens in civil lawsuits, the judge can also, in
theory, impose jail time as part of the punishment for contempt.
PREPARATORY STEPS
The answers to the interrogatories that we sent out
6 weeks ago just arrived in the mail. Quickly skimming through the pages, we can already see that we
did not get all of the information we were expecting.
A few of the answer spaces have been left entirely
blank; other interrogatories have been answered in
a sentence or two where we were expecting at least
a few paragraphs. Several of the answers merely say
investigation continuing, will supplement. Where
do we go from here?
We need to complete several preparatory tasks
before we will be ready to prepare and file a motion
to compel. First, we must analyze the offending response carefully and identify each instance where it
fails to provide all of the information requested. Second, if we are going to move to compel, FRCP, Rule
37(a), requires us to certify that we made a good
faith effort to work out the problem with our opponent. Finally, when we tell the judge in our motion
that a given answer is inadequate, we must be able
to explain why it is inadequate, and to cite some case
law or other authority to back up our assertion.
Step 1
In a motion to compel, we must tell the judge exactly what is wrong with the response that we are
complaining about. We do not want the judge to enter an order merely telling our opponent to file a
better response. It would be too easy for our opponent to send us another response, still incomplete
but worded differently, and tell the judge that everything is now fixed. We want an order that tells our
opponent exactly what must be disclosed, in detail.
The judge will not analyze the facts for us; it is up to
us to say exactly what we want the opposing party
to do.
In principle, there is nothing complicated about
analyzing a discovery response. We asked for a se-
515
516
2.
5.
517
Example:
Interrogatory No. 4
State the name, address, and telephone
number of each individual who at any time
from January 1, 1995, to the present
performed any repair or maintenance on the
door lock or door hardware of Room 407 at
the Banbury Park Hotel.
Marcos Davila, head of maintenance
department, Banbury Park Hotel, 1594 E Viking
Rd., Las Vegas, NV 89119 Phone: 702-555-5254.
Analysis: This is the same interrogatory as
in the preceding example, but now the answer
leaves out the disclosure that there were others
beside Marcos Davila who performed repairs or
maintenance on Shannons door lock. It seems
intuitively unlikely that the head of the
maintenance department would be the only one
to work on the door locks, so we suspect that
the answer is incomplete. We have two options:
(1) We can wait until we have a chance to follow
up in a deposition and find out whether there
were others who worked on the locks (see
sidebar on follow-up depositions); or (2) we can
state in our demand letter that we surmise that
there were others and ask our opponent to
supplement the answer. Since we may want to
depose anyone who worked on the door, and we
want to know whom to depose, we will choose
the latter alternative. (Of course, if our opponent
continues to insist that the answer is complete
as written, we will not be able to include this
item in our motion to compel until we come up
with some proof that some names were left out.)
Interrogatory No. 4
Calls for: Identities of all persons who
performed maintenance on Room 407 door
lock or door hardware.
Response: Discloses identity only of hotel
maintenance supervisor.
Insufficient because: Defendant is
required to disclose all information in its
possession or control. Plaintiff believes there
were others in addition to maintenance
supervisor who performed maintenance or
repairs on Room 407 door lock or door
hardware.
Action required: Disclose the name,
address, and telephone number of each
person who performed maintenance on Room
407 door lock or door hardware during the
period specified in Interrogatory No. 4.
Step 2
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SIDEBAR
Follow-Up Depositions
For our overall discovery plan to succeed, it is important to get the right information early. To be able
to plan our depositions, we need complete and accurate information from our opponents disclosure statement and responses to our initial interrogatories and
request for production of documents. It is from these
sources that we will obtain the identities of witnesses
and leads to other information.
Of course, our opponent would be happy if our
discovery did not succeed very well, so we should expect that our opponents initial disclosure and discovery responses may be somewhat incomplete. How incomplete depends on such things as the opposing
attorneys sense of ethics; the judges reputation for
enforcing or not enforcing the rules; our own vigor in
verifying compliance; and our opponents perception
of what can be gotten away with.
Occasionally we will receive early-stage discovery
responses that seem very incomplete. There may not
be anything that we can prove is missing, but common
sense tells us that there must be some additional witnesses here, some other documents there. We cannot
base a motion to compel on mere suspicions; yet, if we
wait, we place ourselves at a serious disadvantage.
In such situations it is often useful to take a deposition for the purpose of verifying the discovery responses. Deposition of whom? If the opposing party is
an individual, then that is whom we need to depose.
(We would probably want to depose the opposing
party as early as possible anyway, so we can just plan
to verify the discovery responses while we are doing it.)
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SIDEBAR
A Notebook of Discovery Citations
Discovery disputes are inherently factual in nature, and the judges decision on a motion to compel
is usually driven mainly by the judges commonsense
analysis of what facts are relevant to the circumstances of the lawsuit. Deep legal analysis is typically
not required.
Nevertheless, as you gain experience analyzing
discovery responses, you will find that the same issues
and objections come up over and over. Courts have
ruled over and over on many of these common issues
and distilled many general principles, which are expressed in reported cases.
In a motion to compel, we are expected to cite authority to support the legal principles that we argue
for. It is, of course, possible to obtain the necessary citations by researching each issue each time we write a
discovery motion. There is, however, a more efficient
way.
Go to annotations following Rules 26 through 37
in U.S. Code Annotated, U.S. Code Service, or any
other source containing annotations for the Federal
Rules of Civil Procedure. Following each rule, you will
find annotations, one-paragraph summaries of the
holdings of reported decisions that interpret the rule.
The annotations are organized into a large number of
subtopics, in an outline form by subject.
Skimming through the annotations, you will often
find that a large number of the cases under one
520
Keep in mind that the reason there is a discovery dispute is because we are insisting on getting information that our opponent does not want to give
usotherwise, the information would have been in
the response. It is only to be expected that our opponent will stall, offer arguments and excuses, and
try to make the situation confusing so that the
judge will find it hard to rule.
Our best defense against such tactics is a clear
record. Therefore, even though most district court
local rules do not require it, our first move would
usually be to send the opposing attorney a letter.
The letter will be easy to write because we have already done the hard part, which is going through
the response and listing all of the problems. We simply enclose a copy of our list with the letter, and ask
for a telephone call within some reasonably short
period of time for the purpose of conferring as required by the rule. (Most local rules require counsel to confer, so the letter should be prepared for
our supervising attorneys signature, and an attorney would need to handle the phone call when it
comes. See Figure W151 in the Learning by Example section for a sample letter.)
Step 3
SIDEBAR
Other Ways of Dealing with Discovery Disputes
In recent years, judges and legal scholars
have devoted considerable energy to the question
of how to reduce the costs, delays, and consumption of court time occasioned by discovery disputes. We have already seen one of the resulting
reforms: mandatory disclosure rules. Discovery
disputes still occur, however, and the courts continue to look for innovative ways to resolve them.
One of the perceived drawbacks of the present, motion-based system is that there is no mechanism for resolving small problems quickly, before
they escalate into a full-blown motion battle. In
this context, even the requirement for counsel to
confer before filing a motion, well intentioned
though it may be, merely serves to interpose still
another hoop to be jumped through on the way to
a decision by the judge. What is needed is a more
streamlined procedure, but one that still results in
a binding ruling. Here are a few of the ideas that
some districts are experimenting with:
The U.S. District Court for the Eastern District of Texas has instituted a discovery hotline. Local Rule 26 provides:
The court shall provide a judicial officer on
call during business hours to rule on discovery disputes and to enforce provisions of
these rules. Counsel may contact the judicial
officer by dialing the hotline number listed
above for any case in the district and get an
immediate hearing on the record and ruling
on the discovery dispute or request to enforce or modify provisions of the rules as
they relate to a particular case.
DRAFTING STEPS
If we have done the preparatory work well, writing
the motion will be easy. We already have the necessary ingredientsall we need to do is pull them together into a written filing.
A motion to compel follows the same basic layout and format as any other motion (see Workshop
14). We will need the motion itself, the supporting
memorandum, and, depending on the content of
the motion and the requirements of the local rules,
attachments. In this workshop, we will rearrange
the steps a bit and write the memorandum first; we
do this because our decisions about which issues
to include in the memorandum will determine what
specific orders we ask for in the motion.
It goes without saying that we must check the
local rules carefully before we start writing. Many
521
Some courts require the moving party to reproduce each disputed request item and the
response to it, verbatim. Some require this to
be in the body of the memorandum supporting the motion (see, e.g., Local Rule 37.2,
Northern District of Ohio), others in an attachment [see, e.g., Local Rule CV-7(b)(1),
Eastern District of Texas]. Dont forget to
check www.uscourts.gov/links for most of
the district court local rules.
Some courts require the title of the motion to
reflect the identities of the parties involved. In
other words, not Motion to Compel but
Plaintiff John Does Motion to Compel Answers
to Interrogatories by Defendant ABC Corp.
(see, e.g., District of Oregon Local Rule 7.3).
Some courts require the motion itself to recite that counsel have conferred in an effort
to resolve the dispute (see Local Rule 37, Middle District of Georgia). Others require a separate affidavit or certificate containing the
recital attachment [see, e.g., Local Rule CV7(h), Eastern District of Texas]. Some require
the recital to include details, such as the date
and time when counsel conferred, the names
of the attorneys who conferred, and the manner in which they conferred (i.e., in person or
by telephone) (see Local Rule 373.04(B),
Eastern District of Missouri).
Step 4
522
1.
2.
Sometimes, the problem areas in a discovery response reduce to one or two important items
that we badly need (and perhaps a larger number of minor omissions which, though aggravating, involve facts that we can establish in
other ways if necessary). In such situations, we
may decide to address our motion to the few important issues and abandon the others entirely
because, as mentioned, it is better to keep the
judges focus on the things that we most want.
We prune the less important items from our list,
and create our memorandum from the remaining ones, adding argument as necessary.
3.
Step 5
We block-copy the caption from our form (see Workshop 4) and enter an appropriate title. The preamble
begins in the usual way, but rather than a generic
statement that the moving party moves to compel
discovery, we recommend a very specific enumeration of exactly what the moving party is asking the
court to order the responding party to do.
Example of how not to do it:
Plaintiff respectfully moves to compel
discovery pursuant to FRCP, Rule 37(a).
Step 6
Attachments
The required certificate stating that the attorneys have conferred in an effort to resolve
the dispute. Whether this should be submitted as an attachment or included as a part of
the motion itself depends on the local rules
and customs of each district.
Copies of the pertinent discovery papers. In
some jurisdictions, the local rules require attachment of copies of the discovery request
and response to which the motion pertains.
(Typically, these would be included only with
the copy intended for the judge.)
Copies of important legal authorities cited in
the memorandum. As discussed more fully in
Workshop 14, Step 3, it may be appropriate to
attach a copy of a case or statute to the
judges copy of a motion if the case or statute
is important to our argument and not likely to
be readily accessible by the judge.
CONCLUDING STEPS
Most U.S. district courts handle discovery motions
in the same way that they do any other motion.
Therefore, the follow-up stepsfiling, serving,
docketing, getting the motion placed before the
judge for decisionare generally as described in
Workshop 14, Steps 4 through 6. Be sure to consult
your local rules for any specific provisions affecting
discovery motions.
523
524
SIDEBAR
Responding to Motions to Compel
So far, we have been viewing discovery motion procedure from the standpoint of the moving partythe
party who served a discovery request and is dissatisfied
with the response. Now let us shift our focus and consider
the responding partys position. When we find ourselves
on the receiving end of a threatened motion to compel,
it is usually because of one or more of the following:
to one or more of our opponents questions or requests. Our goal here should be to avoid disclosing
anything that will harm our case to the extent that we
have legitimate legal grounds to support our objection. At the same time, we would like, if possible, to
avoid the expense and distraction of having to respond to a motion to compel. Therefore, when the opposing attorney contacts us to confer about the dispute, we will do our best to sell him on the validity of
our objection. Often, it may be helpful to try to reach
some compromiseperhaps by offering to disclose
part of the requested information, if we can do so
without handing our opponent ammunition that will
seriously jeopardize our case.
Failing that, we will have no choice but to respond
to the motion to compel. We will research and prepare
a response memorandum that presents the reasons for
our objection and cites appropriate cases, statutes, or
rules to support our position.
PREPARATORY STEPS
Step 1
Here is our list, based on the first four interrogatories. The last two are left for yousee the Learning
by Doing section later in this workshop.
Interrogatory No. 2
Calls for: Identity of each employee of
Banbury Park Hotel who was present or on duty
on the night of plaintiffs injury.
Response: Left blank
Insufficient because: No response
Action required: Serve a complete answer
to Interrogatory No. 2.
Interrogatory No. 3
Calls for: Name, address, and telephone
number of hotel guests on the same floor on the
night of the events at issue.
Response: Objected to as not calculated to
lead to admissible evidence and violating
guests right to privacy.
Insufficient because: Persons in the
immediate vicinity of a disputed event are
potential witnesses, and their identities are
discoverable. Right of hotel guests to privacy
is not a recognized privilege preventing
discovery of their identities. See Davis v.
Leal,F.Supp.2d, 1999 WL 183643 (E.D.Cal.
1999) [an objection based on privacy is
inappropriate]; Pagano v. Oroville Hosp., 145
F.R.D. 683 (E.D.Cal 1993) [privacy objection
inappropriate where none of the recognized
privileges applies].
Action required: Produce all documents,
including without limitation registration cards,
reflecting the identities of all hotel guests
occupying or registered in Rooms 400 through
447 of the Banbury Park Hotel on the night of
February 5, 1996.
Interrogatory No. 4
Calls for: Identities of all persons who
performed maintenance on Room 407 door lock
or door hardware.
Response: Discloses identity of hotel
maintenance supervisor, then states:
Maintenance was performed by various
employees of the hotels maintenance department;
defendants investigation is continuing.
Insufficient Because: Defendant is required
to disclose all information in its possession or
control. Investigation continuing is not an
excuse for failing to answer an interrogatory.
Williams v. Chicago Bd. of Educ., 155 F.3d 853, 41
Fed.R.Serv.3d 433 (7th Cir.1998)
525
Step 2
Step 3
526
1.
2.
3.
4.
5.
6.
In factually similar cases, courts have granted discovery of the identities of persons who were physically in the same vicinity as a disputed event.
7.
8.
The fact that a party has not completed her investigation is not an excuse for failing to answer an interrogatory.
A party must disclose in answer to an interrogatory all information available to the party.
DRAFTING STEPS
Step 4
527
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
NO._____
MEMORANDUM IN SUPPORT OF
PLAINTIFFS MOTION TO COMPEL
ANSWERS TO INTERROGATORIES
BY DEFENDANT PARK HOTELS
GROUP, INC.
)
Defendants.
)
___________________________________)
Summary of Argument
1. Defendant has made no answer to Interrogatory No. 2, and should be ordered to do so.
2. Other hotel guests may have witnessed the events from which this lawsuit arises; their identities are
not privileged and should be disclosed.
3. Plaintiff is entitled to discover the identities of persons who performed maintenance on the door lock
by which plaintiffs assailant gained entrance. That defendants investigation is incomplete is not an
excuse for withholding whatever information is now in defendants possession or control.
Argument
I. Factual Background: The Manner of Defendant Collinss Entry Into Plaintiffs Room Is The Main Factual
Issue In This Lawsuit: Evidence Thereon Is Discoverable.
The injuries for which plaintiff is suing occurred when defendant Collins, using a key given him by
defendant Hotel, entered plaintiffs hotel room while she was sleeping. How this could have happened
is the central factual issue in this lawsuit. Plaintiff served interrogatories for the purpose of identifying
the individuals who were in a position to have information about the events surrounding plaintiffs
injury, or about the operation and condition of the door lock by which defendant Collins gained
admittance to plaintiffs room.
II. Defendant Has Made No Response To Plaintiffs Interrogatory Asking For The Identities Of Hotel Employees
Present On The Night Of Plaintiffs Injury.
Interrogatory No. 2 seeks to discover the identities of hotel employees present on the night of plaintiffs
injury:
Interrogatory No. 2
State the name, address, and telephone number of each employee of Banbury Park Hotel who was
present at the hotel or on duty at any time between 6:00 p.m. on February 5, 1996, and 6:00 a.m. on
February 6, 1996.
III. Other Hotel Guests On The Floor Where Plaintiffs Injury Occurred May Have Witnessed Relevant Events:
Their Identities Are Discoverable.
continued
528
Step 5
Step 6
into a complete memorandum and modify it as necessary to conform to the local rules and customs of
the U.S. district court having jurisdiction in your locality. (At your instructors option, the state court
of your locality may be substituted.) Assume the
following hypothetical facts:
You are a paralegal in the office of Allen
Porter, attorney for Shannon Martin. The firms
office is in your city (make up a suitable
address). The lawsuit, Martin v. Collins, is
pending in the U.S. district court having
jurisdiction in your locality. The other facts of
the hypothetical are unchanged. You have
received the answers to the six interrogatories
shown at the beginning of the Learning by
Example section. Allen Porter has assigned you
to analyze the answers and, to the extent that
you find them to be insufficient, take
appropriate steps to obtain proper answers.
Attachments
EXERCISES
1.
529
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
NO.____________
Defendants.
_______________________________________)
)
)
Plaintiff respectfully moves pursuant to Rule 37(a), FRCP, for an order of the court compelling
defendant Park Hotels Group, Inc., to serve, on or before August 7, 2000, full and complete answers to
plaintiffs interrogatories to said defendant dated April 24, 2000, and ordering that said answers shall:
1. Disclose the name, address, and telephone number of each employee of Banbury Park Hotel who
was present at the hotel or on duty at any time between 6:00 p.m. on February 5, 1996, and 6:00 a.m.
on February 6, 1996.
2. Disclose the name, address, and telephone number of each person who was a registered guest on
the fourth floor of Banbury Park Hotel on the night of February 5, 1996.
3. Disclose the name, address, and telephone number of each individual who at any time from January
1, 1995, to the present performed any repair or maintenance on the door lock or door hardware of
Room 407 at the Banbury Park Hotel.
This motion is based upon the accompanying memorandum of law.
RESPECTFULLY SUBMITTED this 12th day of June, 2000.
SIMON & PORTER
________________________
Allen Porter
Attorneys for plaintiff
(Certificate of mailing goes heresee Workshop 4.)
many districts, the local rules can be accessed from the U.S. Courts Internet site,
www.uscourts.gov; if the rules for your court
are not available there, they can be obtained
from the clerks office.) Also, while carrying
out this assignment, comply with the local
rules governing motions in general which you
found while carrying out your assignment in
Workshop 14.
2.
530
Plaintiff,
v.
ARTHUR COLLINS, et ux., et al.,
Defendants.
___________________________)
)
)
)
)
)
)
NO._____
LOCAL RULE 1.10(J) CERTIFICATE
OF CONFERENCE IN SUPPORT OF
PLAINTIFFS MOTION TO COMPEL
ANSWERS TO INTERROGATORIES
BY DEFENDANT PARK HOTELS
GROUP, INC
The undersigned attorney hereby certifies that he has personally consulted with Gail Stoddard, Esq.,
attorney for defendant Park Hotels Group, Inc. in a sincere effort to resolve the issues presented by the
discovery motion that this certificate accompanies, and that counsel have been unable to resolve the
matter.
RESPECTFULLY SUBMITTED this 12th day of June, 2000.
SIMON & PORTER
_____
Allen Porter
Attorneys for plaintiff
(Certificate of mailing goes heresee Workshop 4.)
Following the instructions under Step 1, complete the list of deficiencies begun under Step 1
in the Learning by Example section by analyzing Interrogatories Nos. 5 and 6 and writing appropriate list entries.
4.
5.
Following the instructions under Step 3, perform the research necessary to complete the
drafting of the memorandum. At your instructors option, either:
a. (Minimum research option) Research
the objection made to Interrogatory No. 6
b.
by reading the case cited in the objection, In re Convergent Technologies Securities Litigation, 108 F.R.D. 328 (N.D.Cal.
1985). Do not forget to Shepardize or
KeyCite to determine whether the holding of the case has been overruled or
modified.
(Full research option) Research each of
the points listed under Step 3 in the Learning by Example section. List the issues that
you think should be researched that arise
from Interrogatories Nos. 5 and 6 and research those issues. On each issue, try to
find at least one case decided by a U.S. district court or U.S. Court of Appeals in the
circuit having appellate jurisdiction over
the federal courts of your locality. Take
notes of the citations and holdings of the
cases that you find.
6.
Taking as a starting point the memorandum excerpted in Figure W152, and, at your instructors option, either:
a. (Minimum research option) Prepare a
complete memorandum supporting a motion to compel addressed only to Interrogatory No. 6.
b. (Full research option) Prepare a complete memorandum supporting a motion to
compel addressed to whatever issues you
deem appropriate to assert, arising from all
six interrogatories.
531
7.
Following the instructions under Step 5, prepare the motion to compel, conforming to the
local rules and customs of your local court.
The motion should be addressed either to Interrogatory No. 6 only, or to the entire set, depending on which option your instructor has
assigned.
8.
Following the instructions under Step 6 and applicable local rules and customs, prepare a certificate complying with the requirement to certify that counsel have attempted to resolve the
issues.
PRACTICE POINTERS
Writing Tips: Brevity
and Simplicity
In motion writing one of the aims is to educate the reader as effortlessly
as possible. Therefore, brevity must be your motto. Keep your paragraphs as
short as possible. Paragraphs that run on for pages are intimidating to readers. Long paragraphs tend to have too many ideas, which makes it difficult for
readers to assimilate even if you provide wonderful transitions and lead them
through every step of the analysis.
Legal concepts tend to be abstract and sometimes complex. Long paragraphs add to that complexity. If you are expressing difficult concepts you
want to express them in as concise and succinct a manner as possible. Turn
to your own experience for verification. When you are learning a foreign concept do you appreciate short paragraphs with brief, to-the-point explanations? Or do you enjoy sifting through lengthy paragraphs with ponderous explanations? Write as you prefer to be written to.
Sentences too should be as short as possible without sacrificing content.
Sometimes you will find it necessary to write relatively long sentences, because to break up the thought into separate sentences would interfere with
your explanation. Just remember that long sentences are not a sign of superior intellect. More often they are a sign of lazinessof a writer who failed to
take the time to rewrite. Keep in mind as well that your most powerful sentences will probably be your shortest sentences. When you really want to
make a lasting impression use a short sentence.
To reinforce this concept of brevity think for a moment of some of the
most powerful oratorical statements: I have a dream, Physician, heal thyself, The unexamined life is not worth living. What made these statements
so memorable? In part because they were so short and yet so meaningful. Advertising slogans are another prime example of the power of brevity. Effective
communicators are masters of verbal efficiency.
You can, however, take brevity to an extreme and make every sentence
short. To make your writing more interesting and powerful, vary your sentence length. Short sentences are not powerful if every sentence is short. They
gain power because they stand apart from the other sentences. In a nutshell,
532
533
TECHNO TIP
Most of us use the copper wire telephone line to connect with the Internet. Current technology limits the
transmission rates on these lines to 56k
bps. If you are connected to a fiber optics line the potential for data transmission greatly increases. Currently fiber
optic lines can transmit at over 10,000k
bps (10,000,000 bps). Transmission
rates of 1,000,000k bps are possible because fiber optic cables transmit with
light rather than electrical impulses.
Currently the cost of such a connection
is out of reach for the individual. Satellite communication is, however, available. In satellite systems the data is
downloaded at extremely high data
FORMS FILE
In your forms file, include a copy of a motion to compel, a motion
for sanctions, or a motion for a protective order as well as a response
and a reply. Make sure each motion includes a memorandum of points
and authorities. Have an attorney or faculty member review each motion to make sure that it is well researched, argued, and written.
16
WORKSHOP
You are defending a suit in which the opposing partys complaint fails to include one of
the required elements of one of the causes of
action alleged. Unless the cause of action in
question is one with which you are very familiar, it is unlikely that you will notice the
omission unless you are looking for it.
Someone is suing your client on a claim arising from a statute, but has not complied with
the statutory prerequisites for suing. You may
never discover the defect unless you research
the statute, find out what the prerequisites
are, and check specifically to see whether
they have been met.
CHECKLIST OF EARLY-STAGE
TACTICAL MOTIONS
In the discussion to follow, we review a number of
common types of motions and learn how to recognize the situations in which each can be used to advantage. We do this in the context of the analysis
that an attorney would perform in the beginning
stages of a lawsuitdefendants attorney after receiving the complaint, plaintiffs attorney after receiving defendants answer. We begin with motions
that address the claims and defenses raised by the
pleadings, then proceed to motions involving technical or procedural issues.
Most, but not all, of the motions we discuss here
are inherently defense oriented; they are aimed at
various defects that may exist in plaintiffs case.
Does this mean that the kind of analysis that we are
describing is of interest only to defendants? Most
emphatically not; to succeed in litigation, we must
always be on the lookout not only for opportunities
to attack the opposing partys case, but also for opportunities for the opposing party to attack our
case. When we represent a plaintiff, we want to anticipateand correctany problems that might
otherwise give the defendant an opportunity to
move against us.
536
Motions Relating to the Claims and DefensesWe begin with the workhorse motions of
civil litigation, those used for testing and refining
the claims and defenses asserted in the complaint
and answer. These are the motion to dismiss for failure to state a claim; the motion to strike; and the motion for summary judgment. The purpose of each is
to try to defuse one or more of the opposing partys
claims or defenses.
Motion to Dismiss for Failure to State a Claim
Analysis question: For each claim being
asserted in the complaint, (1) does the law
recognize a cause of action and (2) are all
elements of that cause of action properly
alleged?
Authority: FRCP, Rule 12(b)(6).
When permitted: Before answer is filed.
Example: The complaint alleges a cause of
action for the tort of battery, but fails to include
any allegation that defendant made a harmful or
offensive physical contact with plaintiff. Since
harmful or offensive touching is an element of
the tort of battery (see Workshop 1), the
complaint, on its face, fails to state a valid cause
of action for battery. Defendant can move to
dismiss the cause of action for battery.
Your Local Notes
_________________________________________________
_________________________________________________
There are two basic ways in which a claim or defense can be subject to attack by motion:
1.
2.
537
538
The court has no power to render a binding judgment against a person over whom the court does
not have personal jurisdiction. We explored the intricacies of personal jurisdiction in Workshop 2. If
the court does not have jurisdiction over the person of a given defendant, that defendant may, if desired, nonetheless consent to jurisdiction, explicitly or by the act of filing an answer. If defendant
wishes to contest the courts jurisdiction of her person, a motion to dismiss under FRCP, Rule 12(b)(3),
is the proper choice.
Motion to Dismiss for Improper Venue
Analysis question: Was the action brought
in a place that is permitted under the applicable
venue statutes?
Authority: FRCP, Rule 12(b)(3).
When permitted: Before the answer is filed.
Example: Same facts as the previous example:
Plaintiff, a resident of Vermont, is vacationing in
New York City and is injured when defendant, a
New York City resident, runs the wheel of her
taxicab over his foot. This time, plaintiff files suit
in the Northern District of New York. Defendant is
a resident of New York so the court has personal
jurisdiction over her. However, New York City is in
the Southern District of New York, not the
Northern District, so plaintiffs choice of forum
does not comply with the federal venue statute,
28 U.S.C. 1391. Defendant may move to dismiss
under Rule 12(B)(3).
Your Local Notes
_________________________________________________
_________________________________________________
539
540
Motion
Motion to Dismiss
for Failure to State
a Claim
FRCP, Rule
12(b)(6)
Motion to Strike
FRCP, Rule
12(f)
Motion for
Summary
Judgment (by
Defendant)
FRCP, Rule
56(b)
Motion for
Summary
Judgment (by
Plaintiff)
FRCP, Rule
56(a)
Motion to Dismiss
for Lack of Subject
Matter Jurisdiction
FRCP, Rule
12(b)(1)
Motion to Dismiss
for Lack of
Personal
Jurisdiction
FRCP, Rule
12(b)(2)
Motion to Dismiss
for Improper
Venue
FRCP, Rule
12(b)(3)
Motion to Dismiss
or Motion for
Summary
Judgment Based
on Statute of
Limitations
FRCP,
Rule
12(b)(6);
Rule
56(b)
When Made
Authority
Step 1
2.
3.
541
4.
Identify the gaps in plaintiffs evidenceany elements for which there seems to be no supporting evidence. Any causes of action requiring proof of any of those elements are good
candidates for a motion for summary judgment.
5.
Also research each cause of action to determine what, if any, affirmative defenses apply.
6.
7.
List the evidence available to establish each element of each affirmative defense, and the
counterevidence that plaintiff will likely offer to
rebut each one.
8.
If there is a legally recognized affirmative defense to a given cause of action, and if we can
produce evidence to establish each element of
that affirmative defense, and if plaintiff is unable to produce significant counterevidence on
any of the elements, we can move for summary
judgment based on the affirmative defense.
Step 2
A motion for summary judgment is a filed court paper of the usual kind, constructed with the usual
caption, title, preamble, date and signature lines,
542
Step 3
Memorandum of Points
and Authorities
Step 4
Statement of Facts
Step 5
Supporting Evidence
and Affidavits
We can submit affidavits. In summary judgment practice, affidavits are routinely used as
a kind of substitute for live testimony, to
show what a witnesss testimony would be.
FRCP, Rule 56(e), provides that the affidavits
must be made on personal knowledge,
must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated. (The affiant is the
person signing the affidavit.) In effect, the affidavit may say only those things that the affiant would be allowed to testify to on the witness standhearsay is not allowed, and
proper foundation must be laid.
We can attach document exhibits to the affidavits. Just as in court, the documents must
be admissible in evidence and submitted in a
form complying with FRCP, Rule 56(e) (that
is, sworn or certified copies).
We can submit copies of discovery responses
and/or excerpts from deposition transcripts.
FRCP, Rule 56(c), directs the judge to consider the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any. . . . As a
practical matter, the judge will usually consider only what the parties submit. Judges do
not have time to browse through all of the
pleadings and discovery in the case file, and,
anyway, in most federal courts today the depositions and discovery responses are never
filed so the judge has no way to consider
them unless the parties submit them.
543
Step 1
544
of the elements of the claim; the other is to establish an affirmative defense based on facts that plaintiff cannot dispute.
The elements of the tort of negligence are (1) a
duty, (2) its breach, (3) causation, and (4) damages.
The damages element is not promising: clearly
Shannon can produce evidence showing that she
was injured. Causation has possibilitiesthe question is whether Shannons damages were caused by
the negligence of the hotel. From our knowledge of
tort law, we are aware that there is a body of case
law dealing with the concept of intervening cause.
We might be able to find case law support for the argument that even if the hotel was negligent, the real
cause of plaintiffs damages was the actions of Dr.
Collins; this issue is worth researching.
We will assume (but in a real case we would research it) that a hotel has a duty not to give strangers
access to a guests hotel room. The question, of
course, is whether the hotel breached that duty. The
hotel could argue (as Gail Stoddard does in the story
on which our hypo is based, see Chapter 5, that the
evidence is undisputed that the key found in Shannons room could not have opened her door). However, plaintiff could properly argue (as Allen Porter
does in our story) that Shannon testified that she
locked the door, and Dr. Collins testified that the key
he was given did open the door. Therefore (as the
judge properly found in our story), what we have is
a classic question of factpart of the evidence (the
key) suggests that hotel could not have been responsible for Dr. Collins gaining entry to Shannons
room, and part of the evidence (Shannons and Dr.
Collinss testimony) suggest the contrary.
What about affirmative defenses? The obvious
affirmative defense to negligence is the defense of
contributory negligence (or, in some states, comparative negligence). Shannons failure to secure
the chain lock on her door lends some support; this
defense also bears researching.
There is another affirmative defense, however,
that has considerable potential: section 651.15 of
the Nevada Revised Statutes. This is the statute limiting the liability of a hotel for death or injury to a
guest caused by someone who is not an employee of
the hotel. We reproduce the salient provisions here:
651.15 Civil liability of innkeepers for
death or injury of person on premises caused
by person who is not employee.
1. An owner or keeper of any hotel, inn,
motel, motor court, boardinghouse or
lodginghouse is not civilly liable for the death
or injury of a patron or other person on the
premises caused by another person who is not
an employee under the control or supervision
of the owner or keeper unless:
Step 2
After conducting the necessary research, we proceed to draft the motion and supporting papers.
Since our hypothetical lawsuit is pending in the U.S.
District Court for the District of Arizona, we will follow that courts local rules regarding format, layout,
and required parts. The draft motion is shown in
Figure W163.
Step 3
Memorandum of Points
and Authorities
The memorandum is, of course, the heart of the motion (Figure W164). Memoranda in support of motions for summary judgment are necessarily
lengthy in order to allow presentation of the legal
argument and discussion of the supporting authorities. Not too lengthy, however; we must be mindful
of the page limit set by local rules. In this case, the
limit set by Local Rule 1.10(e) of the U.S. District
Court for the District of Arizona is fifteen (15)
pages, exclusive of attachments and any required
statement of facts.
545
Figure W162 Elements of Affirmative Defense under Nevada Revised Statute 651.15
Element
1. Defendant is the owner of a hotel.
2. Plaintiff was injured while a patron or other
person on the premises.
3. Plaintiffs injury was caused by another
person who is not an employee under the
control or supervision of the owner.
Step 4
Statement of Facts
Looking up the local rules for the U.S. District Court for
the District of Arizona, we find that Local Rule
1.10(1)(1) requires that a motion for summary judgment be accompanied by a separate statement of facts:
Any party filing a motion for summary
judgment shall set forth separately from the
memorandum of law, and in full, the specific
facts on which that party relies in support of
the motion. The specific facts shall be set forth
in serial fashion and not in narrative form. As to
each fact, the statement shall refer to a specific
portion of the record where the fact may be
found (i.e., affidavit, deposition, etc.).
Figure W165 shows our statement of facts for Martin v. Collins.
You may be wondering why, given our usual distaste for archaic phraseology, we keep using the
word herein (i.e., complaint herein). The word
herein in this context is simply a shorthand way
of saying filed in this lawsuit.
Evidence
Undisputed; plaintiff will not be able to produce
evidence to the contrary.
Again, undisputed; plaintiffs own complaint
establishes this element.
Plaintiff will be unable to dispute that Dr. Collins is
not a hotel employee. Plaintiff will try to argue
that it was the hotels negligence, not Dr. Collins,
that caused her injury. This issue is probably
plaintiffs best chance to avoid summary
judgment, and will have to be researched.
(To evaluate foreseeability element, we must break
it down into its subelements in accordance with
subsection 3 of the statute.)
This is another element that leaves plaintiff some
opening; to support motion for summary
judgment, we can submit hotel managers
affidavit that the hotel exercised due care.
We can establish this element by the hotel
managers affidavit; assuming no prior incidents
occurred, plaintiff will be unable to rebut. We will,
of course, carefully investigate to verify that no
prior incidents occurred.
546
Plaintiff,
)
NO. CV98 -01456 PHX JL
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
)
)
Defendants.
____________________________________)
)
)
Defendant Park Hotels Group, Inc. respectfully moves pursuant to Rule 56, Federal Rules of Civil
Procedure, for summary judgment dismissing plaintiffs claims against said defendant.
This motion is based upon the accompanying memorandum of points and authorities and
affidavit of Corby Jamison.
RESPECTFULLY SUBMITTED this 25th day of June, 2000.
CRANDALL, ELKINS & MAJOR
______________________________
Gail Stoddard
Attorneys for defendant Park Hotels
Group, Inc.
(Certificate of mailing goes heresee Workshop 4.)
Step 5
Supporting Evidence
and Affidavits
of this workshop, and produce a finished set of motion papers conforming to the rules and customs of
the court selected by your instructor. This may be
the U.S. district court having jurisdiction in your locality or, at your instructors option, the state trial
court for your county. Assume the following:
You are a paralegal in the office of Gail
Stoddard, who represents Park Hotels Group,
Inc. The firms office is in your city (make up a
suitable address). The lawsuit, Martin v. Collins,
is pending in the court selected by your
instructor. The other facts of the hypothetical
are unchanged. Ms. Stoddard has assigned to
you the task of preparing a motion for summary
judgment asserting the statutory defense under
Nev. Rev. Stat. Ann. 651.15 (reproduced in full
in Workshop 14).
547
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
Defendants.
__________________________________)
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY
JUDGMENT OF DEFENDANT
PARK HOTELS GROUP, INC
)
)
Summary of Argument
1. By Nevada statute, a hotel is not liable to a guest for injuries inflicted by another guest unless
the wrongful act causing the injury was foreseeable. Nev. Rev. Stat. Ann. 651.15.
2. Also by Nevada statute, an injury to a hotel guest by another guest is not foreseeable as a
matter of law unless either the hotel owner failed to exercise due care for the safety of the guest, or was
placed on notice by prior incidents involving similar wrongful acts. As established by the accompanying
affidavit of Corby Jamison, the hotel owner at all times exercised due care and no similar prior incidents
have occurred.
3. Nevada has the most significant relationship to plaintiffs claims which arise from events at a
Nevada hotel. Defendants liability is to be determined according to Nevada law.
Argument
I.
Factual Background: Plaintiff Was Injured
by Another Hotel Guest: The Circumstances Were Unforeseeable.
While staying at the Las Vegas hotel operated by defendant Park Hotels Group, plaintiff was
injured in her room by another hotel guest, defendant Collins. The
.......
II.
Nevada Hotels Are Not Liable to Guests
for Acts Committed by Other Guests Where Hotel Used Due Care and No Previous Similar Incidents
Had Occurred
In Nevada by statute, a hotel owner is not liable for injuries inflicted by one hotel guest on
another unless the injuries are foreseeable as that term is defined by the statute. Nev. Rev. Stat. Ann.
651.15 provides:
.......
V.
Conclusion: Nev. Rev. Stat. Ann. 651.15
Provides a Valid and Complete Affirmative
Defense to Plaintiffs Claim against Defendant
Park Hotels Group
continued
548
Figure W164 Sample Memorandum in Support of Motion for Summary Judgment, continued
Under Nevada law by statute, hotels are not liable for injuries inflicted by one hotel guest on
another unless either the hotel owner failed to exercise due care for the safety of the injured guest, or
had notice of similar previous incidents.
Defendant Park Hotels Group not only exercised due care, it took extraordinary precautions for
the safety of its guests, including providing each room with a chain lock, which, had plaintiff used it,
would clearly have prevented the incident for which she is suing. There has never been any report of
any other incident in which a guest at Banbury Park Hotel entered the room of another guest and
committed an assault.
The Court should grant summary judgment dismissing plaintiffs claims against defendant Park
Hotels Group, Inc.
RESPECTFULLY SUBMITTED this 25th day of June, 2000.
CRANDALL, ELKINS & MAJOR
______________________________
Gail Stoddard
Attorneys for defendant Park Hotels
Group, Inc.
(Certificate of mailing goes here)
EXERCISES
In carrying out this assignment, you should follow the step-by-step formula described in this
workshop.
1.
2.
Determine from your local rules, from your instructor, or by calling the clerks office:
a. Any page limits applicable to motions for
summary judgment and responses;
b. The time periods allowed for response and
reply (these are often longer for motions for
summary judgment than for other motions);
c. Any requirements for a statement of facts or
other similar required accompanying papers;
d. Whether the court routinely hears argument
on motions for summary judgment and, if
so, how the argument is scheduled and noticed;
e. Any other provisions specifically applicable
to motions for summary judgment.
4.
549
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
Defendants.
_____________________________________)
)
)
STATEMENT OF FACTS IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OF
DEFENDANT PARK HOTELS
GROUP, INC.
Defendant Park Hotels Group, Inc., pursuant to Local Rule 1.10(1) of the U.S. District Court for
the District of Arizona, submits the following statement of facts in support of its motion for summary
judgment:
1. Plaintiff was a guest at the Banbury Park Hotel, Las Vegas, Nevada, on the night of February 5,
1996. (Complaint herein at paragraph 5; answer herein at paragraph 4; affidavit of Corby Jamison
dated June 22, 2000, at paragraph 2.)
2. Banbury Park Hotel was at all material times owned and operated by defendant Park Hotels
Group, Inc. (Affidavit of Corby Jamison dated June 22, 2000, at paragraph 3.)
3. Plaintiffs injuries were inflicted by defendant Arthur Collins. (Complaint herein at paragraph 7.)
4. Defendant Arthur Collins has never been an employee of defendant Park Hotels Group, Inc.
(Affidavit of Corby Jamison dated June 22, 2000, at paragraph 4.)
5. Banbury Park Hotel exercises due care for the safety of its guests. (Affidavit of Corby Jamison
dated June 22, 2000, at paragraphs 5, 6, and 7.)
6. Banbury Park Hotel complies with all applicable building safety regulations, including provision
of interior safety chain locks on all guest room doors, and including the posting of safety notices urging
guests to fasten the safety chain locks while occupying their rooms. (Affidavit of Corby Jamison dated
June 22, 2000, at paragraph 6.)
7. There has at no time been any reported previous incident at Banbury Park Hotel in which any
person has entered the room of a hotel guest and assaulted the guest therein. (Affidavit of Corby
Jamison dated June 22, 2000, at paragraph 7.)
RESPECTFULLY SUBMITTED this 25th day of June, 2000.
CRANDALL, ELKINS & MAJOR
_______________________
Gail Stoddard
Attorneys for defendant Park Hotels
Group, Inc.
(Certificate of mailing goes here)
550
)
)
)
v.
ARTHUR COLLINS, et ux., et al.,
Defendants.
__________________________________)
STATE OF NEVADA
)
)
)
)
County of Clark
)
Corby Jamison, being first duly sworn, upon his oath deposes and says:
1. I have been the general manager of Banbury Park Hotel, Las Vegas, Nevada, at all times since
the hotel opened on January 22, 1992. I make this affidavit on the basis of personal knowledge.
2. According to the records of the hotel, Plaintiff was a guest at the Banbury Park Hotel, Las
Vegas, Nevada, on the night of February 5, 1996.
3. Banbury Park Hotel was on that date, and at all times since, owned and operated by defendant
Park Hotels Group, Inc.
4. Defendant Arthur Collins has never been an employee of defendant Park Hotels Group, Inc.
5. Banbury Park Hotel at all times exercises the highest care for the safety of its guests.
6. Banbury Park Hotel complies with all applicable building safety regulations, including provision
of interior safety chain locks on all guest room doors, and including the posting of safety notices urging
guests to fasten the safety chain locks while occupying their rooms.
7. There has at no time been any reported previous incident at Banbury Park Hotel in which any
person has entered the room of a hotel guest and assaulted the guest therein.
DATED this 22nd day of June, 2000.
_______________________________
Corby Jamison
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this 22nd day of June,
2000.
_______________________________
Notary Public
(Certificate of mailing goes heresee Workshop 4.)
551
PRACTICE POINTERS
Writing Tips
Refining Your Writing Skills
Say What Is Important FirstReserve the beginning of sentences for the
most important part of your message. Do not stash the subject of the sentence
away in the middle or leave it to the end. Say it up front. Consider the following example:
Whether or not subject matter jurisdiction existed was the matter to
be resolved by the court.
The writer is trying to convey the nature of the issue the court had to resolve.
Why not let the reader know in the first few words that this sentence reveals
what the court resolved?
The court had to resolve the issue of subject matter jurisdiction.
552
temptation to quote. You will find that there are few expressions that are so
eloquent that they must be quoted.
On the other hand, in some cases quoting is necessary. If you are discussing a statute, ordinance, or regulation you must quote the relevant parts.
Similarly, if you are discussing a contract you should quote the sections at issue. Also, if you need to convey a courts or partys exact words, especially if
legal terms of art are being used, then you should quote. The latter is a judgment call. If you are not sure that you can accurately paraphrase what is being said, first quote and then paraphrase. The reader can then decide if you
have paraphrased accurately.
TECHNO TIP
Being able to communicate and transfer
information cheaply and instantaneously on the Internet carries with it a
price often overlookedlack of security.
As you will see in Workshop 19 (and
which you probably already know) a
clients confidences must be maintained
inviolate. How can we be sure that
the information we are transmitting remains confidential? How can we ensure
that our data is not compromised or received by someone other than the person we are directing it to?
FORMS FILE
Include a sample motion for summary judgment and a response
and a reply in your forms file. You may also want to include samples of
other types of tactical motions as well. Make sure to get copies of the
supporting papers (such as affidavits) as well.
KEY TERM
affiant
553
17
How to Prepare
for Trial
WORKSHOP
_________________________________________________
556
The Virtue of Firm Trial DatesIn 1990, the Congress enacted legislation requiring each U.S. district
court to appoint an advisory group of lawyers and
citizens to study the problem of rising expense and
delay in civil litigation, and to recommend plans designed to process civil cases more efficiently; see 28
U.S.C. 471 et seq. As we have seen, one major target for reform has been the discovery process. Trial
scheduling procedure is another important focus.
According to the Civil Justice Expense and Delay Reduction Plan adopted by the U.S. District Court for
the Northern District of Texas, A credible, firm trial
date is the sine qua non of reducing excessive costs
and delay. When a court grants a firm trial date,
the parties are assured that, barring some extraordinary event, the case will go to trial on that date
no excuses accepted. Much duplication of effort is
eliminated since the attorneys need only prepare for
trial once.
How can a court grant firm trial dates when
there is no way to predict which cases will settle before trial? Must we schedule only one case per time
slot, leaving the judge sitting around with nothing to
do every time a case settles? What about the problem of trials that take longer than expected?
There are no easy solutions to these problems,
but many U.S. district courts have found ways of
coping with them, to the point that trial settings can
be made reasonably firm:
Greater judicial supervision. Instead of allowing the attorneys a completely free hand in
case preparation, the judge takes an active
role. Attorneys are required to appear in
court for scheduling conferences and status
conferences, at which the judge asks for detailed information about what each side is doing to prepare for trial. The judge makes specific decisions about what discovery and
other preparation tasks the attorneys need to
complete, and sets deadlines.
Active verification of trial readiness. Since the
judge is keeping informed about the status of
the case, she is in a position to make an informed decision about the parties readiness
for trial before setting a trial date.
The exact procedure by which a trial date is obtained varies considerably from district to district.
(Your instructor will inform you of the procedure
followed in the U.S. district court having jurisdiction
in your locality, or you can check the local rules.) By
way of example, here are the broad outlines of the
trial setting procedure under current Local Rule 16
of the U.S. District Court for the Northern District of
California. It is fairly typical of the relatively complex case management schemes commonly seen in
busy metropolitan districts. (We do not reproduce
the entire rule because it is some ten pages long;
you can find it on the Internet by going to
www.cand.uscourts.gov and following the links.)
1.
2.
557
3.
Initial case management conference [Rules 1614(a) and (b)]. By the 120th day, the attorneys
must appear for an initial case management conference, which may be conducted by the assigned district judge or by a magistrate judge.
This is basically a Rule 16(b) scheduling conference of the kind we discussed in Workshop 14,
but with an extended agenda. The judge reviews
the case management statement filed by the parties, discusses any problems with the attorneys,
and enters an initial case management order.
4.
5.
6.
558
Trial Preparation: A
Task-Oriented Checklist
The following discussion describes and illustrates
the trial preparation tasks called for in a typical federal district court. As usual, the details vary somewhat according to the rules and customs of each jurisdiction. To determine how your local courts
handle each task, begin by consulting the local
rules. Next, look for published general orders and
judge-specific rules and orders. You may not succeed in finding all of the information that you need.
Many of the detailsthe way in which voir dire is
conducted, the procedure for submitting jury instructions, how exhibits are to be markedare often left up to the individual judges discretion. Some
judges issue standard minute entries in each case,
describing their preferences and expectations. Others offer little or no guidance beyond a few verbal
instructions in pretrial conferences. Sometimes, a
judges particular requirements can be nailed down
in advance only by consulting another attorney
who has tried cases before the same judge (not a
bad idea, in any case) or by asking the judges secretary or clerk.
Your instructor will apprise you of the pertinent
rules and practices of the courts of your locality.
Your Local Notes
_________________________________________________
_________________________________________________
Task 1
Final Discovery
Supplementation and Disclosure
559
be included, it is usually possible to agree on wording that all can accept. Items that the attorneys cannot agree on are included with a brief explanation of
each sides position.
A pretrial order typically includes all or most of
the following categories, which appear in separate
numbered or lettered sections1:
_________________________________________________
_________________________________________________
Task 2
560
Task 3
561
Task 4
Identifying prospective jurors who should be removed for cause. Prospective jurors who have
a conflict of interest, or who admit to being
biased against one of the litigants, or who because of strongly held beliefs are unable to
follow the judges instructions are not qualified to serve and will be excused. Voir dire
questioning helps identify those prospective
jurors.
Allowing the litigants to use their peremptory
challenges effectively. Plaintiff and defendant
will each be allotted a specified number of
strikes or peremptory challenges, which
can be used to remove jurors deemed unfavorable (as long as racial motivations are not
involved). Obviously, to assess which jurors
562
are least likely to favor our case, we need information about each jurors background and
viewsinformation that comes from voir dire
questioning.
Helping the attorneys to focus their trial presentation. To tailor our presentation and
make it as persuasive as possible to the audience that we havethe jurorswe need as
much information as we can get about each
jurors likely opinions and biases.
Traditionally, the attorneys were allowed to question the jurors individually, one on one, about
nearly any subject matter that could conceivably
have a bearing on the jurors qualifications. In
courts that allow open voir diresome state courts
still doattorneys have developed into an art form
the practice of asking voir dire questions that are really thinly veiled arguments on the merits (i.e., If
the evidence showed that defendant was falling
down drunk when he ran over my client in a crosswalk while running a red light, do you have any beliefs that would prevent you from awarding punitive
damages against him?).
Most federal judges today place tight limits on
the kinds of questions that can be asked in voir dire,
and usually it is the judge, not the attorneys, who
asks the questions. Attorneys submit their proposed voir dire questions in advance, and the judge
decides which, if any, will be asked. Needless to say,
argumentative or slanted voir dire questions are unlikely to pass muster.
Each judge sets her own procedure for submitting voir dire questions and for conducting voir dire
questioning. Some federal judges publish their procedures in judge-specific rules or orders; you can
find examples on the Internet sites of the busier
metropolitan districts such as the Southern District
of New York or the Northern District of California
(see www.uscourts.gov and follow links). The following provision, taken from the Standing Order for
Pre-Trial Preparation of Judge Charles R. Breyer of
the U.S. District Court for the Northern District of
California, is typical (see www.cand.uscourts.gov
and follow links):
The attached voir dire questionnaire will be
given to the venire members, and copies of the
responses will be made available to counsel at
the beginning of voir dire. Counsel should
submit a set of additional requested voir dire, to
be posed by the Court, to which they have
agreed at the pretrial meeting. Any voir dire
questions on which counsel cannot agree shall
be submitted separately. Counsel will be
allowed brief follow-up voir dire after the
Courts questioning.
2.
3.
Outside sources. The three sources of information we have mentioned so far are part of the
formal jury selection process provided by the
court system. What about going outside that
system for information? Where the importance
of the case justifies the expense, there is always the possibility of enlisting the assistance
of investigators or jury consultants. Direct outof-court contact with jurors or their families is,
of course, a serious ethical breach. However,
there is nothing to prevent gathering information that is in the public domain. Often, a simple Internet search will turn up an amazing
amount of information about a person. Another
tactic that some jury consultants recommend
is to have an investigator do drive-bys of jurors homes, to note the type of neighborhood,
presence of toys, and other clues to the jurors
personality. Investigating jurors can raise
prickly ethical issues and also has the potential
to alienate jurors should they become aware of
it, so activities of this kind should never be undertaken without the express approval of your
supervising attorney.
How are proposed voir dire questions to be submitted? The procedure depends on the rules and
customs of the court. Sometimes, the pretrial statement or order includes a section for proposed voir
dire questions. In many courts, it is up to the individual judge to decide how he wants voir dire questions submitted.
Your Local Notes
563
_________________________________________________
_________________________________________________
Task 5
Jury Instructions
Deciding What Instructions Are NeededGetting the jury instructions right is important, not so
much because of the effect that the instructions will
have on the jurys decision (debatable, in the view
of many trial lawyers), but because a correct set of
jury instructions is essential for the verdict to be
sustained on appeal. Suppose, for example, plaintiff
is asserting a cause of action for battery, and the
judge gives a jury instruction that leaves out one of
the four required elements. Plaintiff wins a verdict.
The likely result? Defendant appeals, and the court
564
of appeals automatically reverses. It does not matter that jury might have found for plaintiff even if
the instruction had been correct (there is no way to
know, of course)the case will have to be retried
from the beginning.
In principle, if we represent a plaintiff, we need
a jury instruction on each cause of action that we
intend to submit to the jury. If, as in our hypo, we
are suing for assault, battery, and negligence, we
need instructions covering the elements of each of
those causes of action. If we represent a defendant,
we need a jury instruction covering each affirmative defense that we intend to present. We may also
need instructions on other legal principles, such as
burden of proof, and the weight to be given certain
types of evidence. The judge will also routinely give
a series of instructions laying out ground rules for
the jury deliberations and telling the jury how to
evaluate the evidence.
To make a list of the jury instructions that we
may need in a given case, we recommend a two-step
process: (1) Begin with your issues outline, and decide what instructions will be needed to support
the causes of action and/or defenses that you are
asserting and then (2) consult one or more sets of
model or recommended jury instructions for additional ideas of topics to be covered.
Even if there are no model jury instructions designed for use in the courts of your locality, the model
instructions from other jurisdictions provide a good
place to start when drafting your own instructions.
Often, when you need an instruction on a given point,
you can find a model instruction from another court
on the same issue and modify it as appropriate to fit
your circumstances. Another place to look for guidance is the appellate case law; if you do a Westlaw
search for your topic issue and use the phrase jury
instruction you will often find reported decisions in
which jury instructions used in the trial court are
quoted and analyzed. If you simply cannot find an instruction on the topic that you need, the only remaining alternative is to draft one yourself, based on
your research and knowledge of the law on the issue
that the instruction addresses. Try to imitate the
style and tone of the approved instructions, and try
to word the instructions succinctly and impartially.
As the Trial Court Guidelines for the U.S. District
Court for the District of Oregon wisely suggest (see
www.uscourts.gov/guidelin.html): Remember less is
better than more and advocacy instructions will be
rejected.
Your Local Notes
_________________________________________________
_________________________________________________
Task 6
565
the document, then show the document to the witness and ask the witness to identify it, then ask any
required foundation questions, then offer the document in evidence. The opposing attorney would
voice any objections, and the judge would decide
whether to admit the document in evidence. Only
after being admitted by the judge could the document be used as evidence.
Today, with copying machines and computers
spewing out documents in ever greater volume,
most courts have abandoned the traditional procedure as too time consuming. By requiring advance
disclosure of exhibits and advance assertion of objections, there is rarely any need for the trial to be
delayed over issues of admissibility. Such issues are
decided in advance, and some judges enter a ruling
receiving all of the approved exhibits into evidence
at once in advance, avoiding the need to waste time
asking for admission in evidence exhibit by exhibit.
And to facilitate the listing of exhibits and objections and avoid taking up trial time, most courts
now place the burden on the litigants to mark their
own exhibits before the trial begins. The exact
means by which this is done depends on the judges
individual preferences. Some courts provide labels
that contain blank spaces for the exhibit number
and for the clerks notation of whether the exhibit
was admitted into evidence or not.
The numbering system used is also up to the individual judge. Many courts cling to the tradition of
using numbers for plaintiffs exhibits and letters of
the alphabet for defendants exhibits. Where appropriate, the parties can stipulate (or, if necessary, file
a motion) to use some other numbering system. In
complex cases involving large quantities of documents and numerous depositions (each with exhibits), it is usually preferable to agree on a unified
numbering system in the early stages of discovery
and stick to it at trial.
Your instructor will inform you of the preferences of the courts of your locality regarding the
premarking of exhibits, and direct you to any applicable local rules. It is usually also worth checking
with the judges secretary or clerk to see if the judge
has any particular requirements of his own. By way
of example, here is Local Rule 39.1(b) of the U.S. District Court for the Northern District of Ohio, which
follows the typical pattern:
(b) Marking of Exhibits. All exhibits must
bear the official case number and shall be
marked before trial with official exhibit stickers
which are available upon request from the
Clerk. The plaintiff shall mark exhibits with
numbers and the defendant shall mark exhibits
with letters, unless otherwise ordered by the
Court. Joint exhibits shall be marked with
566
Task 7
567
SIDEBAR
The Computerized Courtroom of the Future
The potential benefits of computer technology in
the courtroom can perhaps be best appreciated by seeing a computerized courtroom in action. One U.S. district court, the District of Arizona, has implemented a
computer-integrated courtroom demonstration
project, an actual working courtroom equipped with
state-of-the-art technology. The courtroom has its
own computer system, with display terminals on the
judges bench and the attorney tables, and monitors
for viewing by the jury. Here are a few of the services
that the system provides:
Real-time court reporting. The court reporters
stenographic machine is linked directly to the
courtroom computer system. The trial transcript is available continuously and instantaneously. There is never a need to ask the court
reporter to read back a question or answerall
testimony in the case is instantly accessible.
When an attorney objects to a question, the
judge has the benefit of being able to see the exact wording of the question on the screen before making a ruling. When an attorney is examining a witness and needs to refer to earlier
testimony, the desired passages can readily be
brought up on the screenno need to flip
through stacks of transcripts looking for the
right question and answer.
Litigation support in the courtroom. We have
already seen that computerized litigation support databases are extensively used to organize
and index discovery documents and depositions in cases involving large quantities of documents. In the computer-integrated courtroom,
the attorneys litigation support databases can
be tied directly into the courtroom computer
system so that they can be used during trial.
The system also allows the attorneys (or their
trial paralegals) to key in codes for particular
issues on the flyif a witness makes a statement that is pertinent to a given issue, the tes-
timony can immediately be flagged with an issue code. Then if the attorney needs to see
everything that any witness has said about a
particular point, it is a simple matter to search
for the appropriate issue code. The system also
supports real-time note takingthe attorneys
and paralegals can enter notes about testimony as the testimony is being given.
Evidence presentation system. The computerintegrated courtroom includes a versatile display system that is linked to the courtroom
computer system. The display system accommodates a variety of inputsregular videotape, paper documents, photographs, overhead transparencies, slidesand displays them
on monitors so that the judge, the attorneys,
and each juror can all view exhibits clearly and
simultaneously. (The judge can, of course, turn
off the jurys view.) This system makes testimony
about document exhibits much easier for the
jury to follow, since jurors can see the document
while the witness is talking about it instead of
having to wait until the witness finishes and the
paper document is circulated to the jury. The
system also facilitates presentation of videos,
animations, and other multimedia presentations that can often communicate ideas to the
jury more effectively than dry testimony.
Availability of other computer resources. Since
the computer-integrated courtroom includes
computer terminals on each attorney table, the
attorneys can take advantage of the other familiar software tools that have become so important in the modern law practice: computerized legal research through Westlaw, Internet
access, electronic mail, word processing, and
scheduling.
For more details about the computerintegrated courtroom, see the District of Arizonas web site at www.azd.uscourts.gov/cic.
568
Task 8
Motions in Limine
missible, andthis is the important partto prohibit Shannons attorney from asking any questions
about it or otherwise mentioning it. Then, assuming
the judge grants the motion, if Shannons attorney
should be foolish enough to ask the question anyway (Allen Porter, being a reputable attorney, would
not do so) he risks a mistrial and a fine for contempt.
Motions in limine are a routine part of trial preparation in the average federal trial. First, an effort
should be made to outline, in as much detail as possible, the opposing partys expected trial presentation. Then, identify any subject matter that is both
objectionable and sufficiently damaging that we cannot willingly allow the jury to hear about it. (The
judges attention is a limited resource, and we do not
waste it filing motions to exclude evidence that is
technically inadmissible but does not really hurt us.)
Once we have identified each issue requiring a motion in limine, we prepare the motions and file them.
Deadlines and other procedural requirements
for motions in limine in federal district court are
typically left up to the individual judge, and set
forth in judge-specific rules, standing orders, or in
the trial setting minute entry. Many federal district
judges require the parties to exchange motions in
limine before filing them and to attempt to reach
agreement. The deadline for filing motions in limine
is typically 7 or 15 days before the start of trial, and
the judge usually rules on the motions immediately
before the trial begins.
Your Local Notes
_________________________________________________
_________________________________________________
Task 9
Most of the time in a trial is spent questioning witnesses. The presentation and questioning may
seem spontaneous, but it is not. Effective trial presentations are usually scripted, rehearsed, and
choreographed in fine detail. Some of the typical
preparation steps are discussed next.
Scheduling the WitnessesMaking sure that witnesses are present and ready to testify at the right
times is another critically important behind-thescenes task that is often assigned to paralegals, one
often requiring considerable skill, judgment,and
diplomacy. It is rarely possible to predict exactly
when a witness will be needed, because there is no
way to know how long examination of preceding
witnesses will take. Yet some of the most important
witnessesmedical experts are a notable examplewill insist on knowing, perhaps weeks in advance, exactly when they will be called to testify.
Then there is the problem of whether we can depend on a witnesss promise to show up in court at
the appointed time. If we protect ourselves with a
subpoena, the witness may be offended (and testify
accordingly), but if we do not and the witness fails
to appear, we may be left with a gaping hole in our
case. And, there is the matter of waiting. In most trials, the judge excludes all witnesses from the courtroom except the witness who is testifying. (This is
done so that witnesses are not influenced by each
others testimony.) This means that witnesses waiting to testify must usually remain out in the hall,
with nowhere comfortable to sit, nothing to do, and
no clear indication of how long the wait will bea
situation well calculated to make witnesses cranky
and, in the case of expert witnesses (especially doctors), prompt a bill for hundreds of dollars per hour
for waiting time.
There is no perfect formula that will guarantee
happy witnesses present when needed with no
waiting time, but there are a few general principles
that will help. The first is to explain the uncertainties to the witnesses and keep them informed. Before the trial begins, the best we may be able to do
is give each witness an estimate of the date he is
569
2.
3.
570
4.
attorney can rapidly verify that she has covered all of the exhibits on each point.
SIDEBAR
Task 10
571
Task 11
572
of what has already been decided. It is therefore useful to include in the trial book a summary of all of the procedural events in the case,
giving the date of each and a short description.
Minute entries. In this section, in chronological order, we include copies of any significant
minute entries, so that we are in a position to
establish exactly what the judges ruling was
on a particular point should the need arise.
Voir dire questions and jury selection notes.
Jury selection procedures vary greatly, so the
materials to be included in the trial notebook
depend on the situation and the lawyers preferred approach. If, as is common in federal
district courts, the judge will be conducting
voir dire, then we need to have available our
and our opponents proposed questions, together with any argument notes and citations
of authorities, so that we will be prepared
when the judge is ready to decide which voir
dire questions to use. To the extent that the
court allows attorney-conducted voir dire, we
will need an outline or draft of the questions
we want to cover. We may also want to include other notes, checklists, or forms to use
for keeping track of prospective jurors background information and answers to voir dire
questions.
Jury instructions and supporting notes. We will
need both parties proposed jury instructions,
together with argument notes and supporting
authorities, when the judge hears argument to
decide which instructions to give. Once the
judge has settled the instructions, we will replace this section with the set of instructions
that will actually be given. We will want these accessible, especially when we prepare for closing
argument because we may want to quote from
the instructions while arguing to the jury.
Notes, memoranda, and copies of important
case law pertaining to legal issues expected to
arise during trial. To the extent that we can anticipate disputes over the interpretation of procedural rules or over the admission of particular evidence, we will try to research the
pertinent legal issues in advance. When issues
come up during trial, the judge will usually
want to decide them immediately so as not to
delay the trial. Obviously, if we have done our
research in advance and can access it quickly,
we will be in an advantageous position compared to an opponent who has not researched
her side of the issue and is forced to improvise.
Outline or draft of opening statement. Most
trial lawyers would consider it poor tech-
District Court for the District of Arizona, so we begin by reviewing the local rules of that court (available on the Internet at www.azd.uscourts.gov). As
is typical, we find that the local rules do not give us
very specific guidance on most of these tasks because the usual practice is for each judge to designate his own requirements in each case.
Task 1
573
Task 4
Task 5
Jury Instructions
Task 2
Task 3
574
Task 6
Task 7
A blowup showing the layout of Shannons hotel room and the adjoining hall area, to help
the jury visualize the scene.
A blowup of the hotels telephone printout
showing that Arnie Trevayne did not answer the
phone at the front desk immediately after his
call to 911, even though he testified that he remained at the front desk until the police arrived.
A blowup summarizing the main items of
Shannons damage claim.
Task 8
Motions in Limine
Task 9
The first step in planning the presentation of testimony is to make a tentative decision about which
witnesses to call and in what order to call them.
How? It is helpful to divide the testimony into two
main categories: liability and damages.
On the liability issue, our goal is to present
testimony establishing the elements of each cause
of action. Obviously, Shannon will need to testify;
we may also want to call Dr. Collins and Arnie Trevayne. What about others such as police investigators, other hotel guests, other hotel employees,
paramedicshow do we decide how many witnesses to call? Our general approach is to first
choose the witnesses who can best tell our
clients story; then add others as necessary to be
sure that we have presented evidence supporting
575
Figure W171
SIMON & PORTER
Allen Porter
1000 North Central Avenue, Suite 2800
Phoenix, Arizona 85004
(602) 555-4321
Attorneys for plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
SHANNON MARTIN, a single woman,
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife: PARK
HOTELS GROUP, INC., a Delaware corporation;
NO. _____
)
PLAINTIFFS PROPOSED JURY
INSTRUCTIONS
)
)
)
)
Defendants.
___________________________________________)
)
)
Pursuant to Rule 2.16, Local Rules of Practice of the U. S. District Court for the District of Arizona,
plaintiff hereby submits the proposed jury instructions appearing on the following pages.
RESPECTFULLY SUBMITTED this _____ day of _________________th, 20 ___.
SIMON & PORTER
_____________________________
Allen Porter
Attorneys for Plaintiff
----------------------------------------------------------------------------------------------------------------------------------------THE PLAINTIFF, SHANNON MARTIN, ALSO SEEKS TO RECOVER DAMAGES BASED UPON A CLAIM
OF BATTERY.
THE ESSENTIAL ELEMENTS OF A CLAIM FOR BATTERY ARE:
1. DEFENDANT INTENTIONALLY DID AN ACT WHICH RESULTED IN A HARMFUL OR OFFENSIVE
CONTACT WITH THE PLAINTIFFS PERSON;
2. PLAINTIFF DID NOT CONSENT TO THE CONTACT;
3. THE HARMFUL OR OFFENSIVE CONTACT CAUSED INJURY, DAMAGE, LOSS OR HARM TO THE
PLAINTIFF.
Source: California Civil Jury Instructions No. 7.50; see Restatement (2d) of the Law, Torts, Section 13.
----------------------------------------------------------------------------------------------------------------------------------------A CONTACT WITH THE PLAINTIFFS PERSON IS OFFENSIVE IF IT OFFENDS A REASONABLE SENSE
OF PERSONAL DIGNITY.
TO BE OFFENSIVE, THE CONTACT MUST BE OF A CHARACTER THAT WOULD OFFEND A PERSON
OF ORDINARY SENSITIVITY, AND BE UNWARRANTED BY THE SOCIAL USAGES PREVALENT AT THE
TIME AND PLACE AT WHICH THE CONTACT IS MADE.
Source: California Civil Jury Instructions No. 7.51; see Restatement (2d) of the Law, Torts, Section 13.
(Certificate of service goes here on a separate pagesee Workshop 4.)
576
Task 10
Task 11
Our hypothetical lawsuit is simple and straightforward enough that we should be able to prepare a trial
notebook encompassing all of the documents that
need to be immediately accessible. We will include
the following, each under its own tabbed divider:
EXERCISES
In carrying out this assignment, you should refer to
the tasks described in this workshop.
1. Find out what the procedure is for getting a
trial date in your local court. In doing so, find
out (a) how much time elapses in a typical case
between filing of the complaint and trial;
(b) whether the trial dates are firm or not;
and (c) whether the court schedules more than
one trial on the same day, and, if so, how it handles any scheduling conflicts that result. Write
a short memo to your supervising attorney describing the procedure, citing the applicable
rules of procedure and local rules and any
other sources you consulted.
2. (Task 1) Determine whether there are any applicable late-stage disclosure requirements. If
your instructor has chosen the U.S. district
court for this exercise, determine whether Rule
26(a)(1)(3) is in effect. Identify any other requirements imposed by the applicable rules of
procedure or local rules involving the exchange or disclosure of witness lists and exhibits. Write a short memo to your supervising
attorney describing your findings.
3. (Task 2) Determine whether the rules of procedure and/or local rules of your local court
provide for a pretrial order, pretrial statement,
or other document of similar purpose. Write a
short memo to your supervising attorney
(a) describing the procedure by which the pretrial order or statement is to be created; (b) citing the rule or rules governing the procedure;
and (c) listing the types of information required to be included. If possible, obtain and attach a form pretrial order or statement suitable
for use in your local court.
4. (Task 2) Prepare a draft pretrial order or statement conforming to the rules of your local court,
on behalf of defendant Park Hotels Group, Inc.
5. (Task 3) Your supervising attorney, who appreciates all of your work on the case and values your insight, has asked you what you think
would be the most persuasive themes to emphasize in closing argument. She asks you to
write a draft of the argument that you would deliver on Park Hotels Groups behalf if you were
the trial attorney. (Of course, plaintiffs attor-
577
578
PRACTICE POINTERS
Courtroom Testimony
Being a witness is not as simple as being willing to tell what you know and
remembering the details of what you have come to testify about. Most litigators have learned how to manipulate adverse witnesses to minimize the damage they do to their clients case. Therefore, witnesses must be able to anticipate the kinds of questions they will receive during cross-examination and the
types of cross-examination techniques to which they will be exposed.
The following observations serve as an introduction to the preparation for
courtroom testimony. Testifying is more of an art than a science, an art that expert witnesses often spend months learning about before they appear in court.
Nevertheless, an understanding of some basic concepts can make the courtroom experience more productive and pleasant. If you become a litigation paralegal, you would be well advised to attend a number of jury trials as well as any
seminars or workshops that are offered dealing with courtroom testimony so
that you can assist in preparing your witnesses for their courtroom experience.
Feel Free to Say You Do Not KnowWitnesses who admit they do not
know cannot be cross-examined in any depth about their lack of knowledge
and their willingness to admit their limitations bolsters jurors confidence in
their expertise. Those who speculate open themselves to additional questions and lose credibility when they cannot provide the answers.
Speak Clearly and Use Language That Those with Minimal Education
Can UnderstandWitnesses who testify to the jury can quickly assess
whether they are being understood. Jurors who cannot hear or who are confused by what is being said will usually telegraph their lack of understanding
with their body language. Be aware that juries in some states have an educational level that averages around the fifth grade. While witnesses should never
talk down to jurors, they should avoid using terminology that interferes with
their ability to communicate. If witnesses must use specialized terms, they
should define those terms, either directly or parenthetically.
TECHNO TIP
Preparing for trial often involves the
need to find an expert in a particular
field to give testimony in support of your
clients position. Oftentimes the expert
may also be a fact witness (such as a
treating physician in a tort case). In other
cases it may be necessary to find an expert (such as in medical malpractice and
product liability cases). Numerous organizations exist that provide help with
finding experts. Some are paid by the
expert for listing his or her name and
providing a link to those seeking the service of an expert witness. Other groups,
579
580
FORMS FILE
In your forms file, include:
Summaries of the trial setting procedures for the courts in your
jurisdiction
A sample pretrial statement or order
Sample jury instructions and a summary of the format and
procedure required for submitting jury instructions
A sample motion in limine
The table of contents from a sample trial notebook
KEY TERMS
Firm trial date
Trial notebook
18
How to Obtain
a Judgment
WORKSHOP
INTRODUCTION: WHAT IS A
JUDGMENT AND WHY DO WE
NEED ONE?
fines a judgment (somewhat circularly) as any order from which an appeal lies.
What, exactly, is a judgment, then? It is a document in the form of a filed court paper, with the case
caption, signed by the judge (or in some situations
by the clerk). If the judgment is in favor of plaintiff,
the body of the document recites the amount that
plaintiff has won; if in favor of defendant, the body
of the document recites that plaintiffs claims are
dismissed. We discuss the exact language and format in more detail later in this workshop.
A judgment becomes valid only when it is entered; until then, it has no effect. Under the federal
rules, a judgment is considered entered only when it
is both (1) set forth in a separate written document
and properly signed by the judge or the clerk and
(2) recorded in the clerks docket (an index-like
record kept by the clerk in which all judgments are
recorded). State court procedural rules vary; your
instructor will inform you of what steps are required
for a judgment to be considered as entered under
the rules of the state courts of your locality.
582
defendant had not produced enough evidence to justify a reasonable juror in finding
for defendant, the judge could grant a motion
for a directed verdict in favor of plaintiff. In effect, these motions allow the judge to save
time by taking the decision away from the jury
in cases where the evidence so disproportionately favors one party that only one reasonable outcome is possible.
Some state courts still follow the traditional
terminology. The federal rules, however, provide for a single motionthe motion for judgment as a matter of lawin place of the motion to dismiss at the conclusion of plaintiffs
evidence and the motion for directed verdict
at the conclusion of defendants evidence.
FRCP, Rule 50(a), allows the court to grant
judgment as a matter of law if, at any time during trial, a party has been fully heard . . . and
there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party. . . .
Win a trial to the court. Not all trials are jury trials. There is no right to a jury trial for some
583
_________________________________________________
584
)
)
)
Plaintiff,
)
)
)
)
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation;
JUDGMENT
)
)
)
)
)
)
Defendants.
_____________________________________)
This action came on for trial before the Court and a jury, Honorable Jerome Lewis, District Judge,
presiding, and the issues having been duly tried and the jury having duly rendered its verdict,
IT IS ORDERED AND ADJUDGED that the plaintiff Shannon Martin recover of the defendant Park Hotels
Group, Inc. the sum of Three Hundred Seventy-Five Thousand and no/100 Dollars ($375,000.00), with
interest thereon at the rate of 6.5 percent as provided by law, and her costs of action;
Dated at Phoenix, Arizona this _____ day of ______, 20 ___.
Clerk of Court
SIDEBAR
Interest on Judgments
The winner of a lawsuit is entitled to interest on the
money owed from the time the judgment is entered until it is paid. In federal court, the right to interest comes
from 28 U.S.C. 1961(a), which provides:
Interest shall be allowed on any money judgment in a civil case recovered in a district
court. . . . Such interest shall be calculated from
the date of the entry of the judgment, at a rate
equal to the coupon issue yield equivalent (as
determined by the Secretary of the Treasury) of
the average accepted auction price for the last
auction of fifty-two week United States
Treasury bills settled immediately prior to the
date of judgment.
In plain English, the judgment is to include interest at the current rate for one-year Treasury bills,
which rate you can find in any financial newspaper.
585
SIDEBAR
Rule 54(b) Findings
Sometimes the court enters a judgment that does
not dispose of all the issues in the case. This can happen in two main ways:
1. The judge makes a ruling that ends the case
as to one or more but not all defendants.
Suppose, in our hypothetical lawsuit, that Dr.
Collins moves for summary judgment and the
judge grants the motion. The lawsuit is over as
far as Dr. Collins is concerned, but continues
against Park Hotels Group, Inc.
2. The judge makes a ruling that disposes of
one or more causes of action, but not all. For
example, in our hypothetical lawsuit, suppose
the judge dismisses Shannons negligence
claim against Dr. Collins, but not her assault
and battery claims.
When a ruling by the judge disposes of part but
not all of the claims in the lawsuit, it is necessary for
the judge to decide whether the judgment is to be final. Why do we care? Several reasons: (1) The judgment cannot be appealed until it is final; (2) if the
judgment is for plaintiff, plaintiff cannot begin proceedings to collect the judgment until it is final; and
sign. If the judgment involves anything more complicated than money damages in a sum certain, the
winning party must send a copy of the proposed
judgment to the losing party, who is then given a
short period of time in which to file any objection to
the form of the judgment. If necessary, the judge
may hold a hearing to settle the exact wording of the
judgment. After the judge approves the judgment,
he signs it and transmits it to the clerk for filing and
docketing. The precise steps that constitute entry
of the judgment in state court depend on the rules in
effect in that state. Your instructor will inform you of
the procedure by which a judgment is prepared and
entered under the rules of the state courts having jurisdiction in your locality.
State Court ProcedureIn state court, it is uncommon for either the clerk of the court or the judge
to prepare judgments. Both are far too busy, and
state court judges rarely have law clerks to help
them. The usual procedure in state court is for the
attorney for the winning party to submit a proposed
judgment, that is, the actual paper that the judge will
_________________________________________________
_________________________________________________
586
Obtaining a Default
Judgment: Step-by-Step
Instructions
We now examine the steps required to obtain a default judgment in the not uncommon situation
where a defendant has failed to respond to plaintiffs complaint. First, we must take the required
steps to establish that a default has, in fact, occurred. Then we can request entry of judgment, but,
depending on the circumstances, notice to the defaulting party may be required, and a hearing may
be necessary. Once the judgment is entered, we
need to take steps to have our court costs added to
the judgment.
The procedure that we describe here is that dictated by the Federal Rules of Civil Procedure for use
in federal district courts. State court default procedure often differs from that under the federal rules
(even in states whose civil procedure otherwise follows the federal rules) and varies considerably from
one state to another. There is also some variability
in the federal system, with some district courts
adopting local rules governing some aspects of judgment procedure. We will point out the respects in
which state court procedure commonly differs from
the federal as we go along, and your instructor will
inform you of the exact procedure to be followed in
the state courts of your locality and give you citations for the pertinent state court rules.
A final caveat before we begin: If the defaulting
party is an agency of the government, additional
complications arise that are beyond the scope of
this introductory text. Suits against the government
are fraught with many procedural pitfalls, and default judgments are usually difficult or even impossible to obtain. Should the need arise, plan on
spending a few days of quality time at the law library researching your options.
Step 1
For plaintiff to be entitled to a default judgment, defendant must first default. [It is, of course, possible
for someone other than plaintiff to seek a default
for example, there can be a failure to respond to a
counterclaim, cross-claim, or third party claim; see
FRCP, Rule 55(d). In the vast majority of cases, however, the default consists of one or more defendants
failing to file an answer, and it is plaintiff who is
seeking the default judgment, so it will be easier if
we cast our discussion accordingly.]
In general, for a defendant to be in default, four
things must be true:
1.
2.
3.
4.
Defendant has not filed and served either an answer to the complaint or a motion to dismiss or
other motion permitted under FRCP, Rule 12.
(Of course, if a motion to dismiss has already
been denied, then only an answer will do.)
on the motion. Therefore, as a practical matter, defendant can avoid default either by filing an answer
or by filing a motion to dismiss or other motion under FRCP, Rule 12.
Your Local Notes
_________________________________________________
_________________________________________________
Step 2
587
Step 3
After the clerk has entered default, plaintiff may apply for a default judgment. The procedure for obtaining the actual judgment may be simple, or not
so simple, depending on the type of relief that plaintiff is asking for.
To understand why the rules make the distinctions that they do, you must first realize that defendant still has some rights even after defaulting. By
defaulting, defendant gives up the right to contest
liability. The default automatically makes plaintiff
the winner of the lawsuit, regardless of what the evidence might show if the case went to trial. However, even after defaulting, defendant still has the
right to insist that the amount of the judgment not
exceed the amount of plaintiffs actual, provable
damages. Plaintiff is not free simply to pull a number out of the air.
Likewise, defendant is entitled to rely on the
amount plaintiff has demanded in the complaint as
an upper limit on the amount of the judgment. FRCP,
Rule 54(c), states that A judgment by default shall
not be different in kind from or exceed in amount
that prayed for the demand for judgment. If plaintiff asks for $100,000 in the complaint, and defendant defaults, plaintiff cannot then obtain a judgment for $200,000, even if the evidence would
support the higher figure.
Therefore, whether it is simple or complicated
to obtain a default judgment depends mainly on
how difficult it is to nail down the amount of the
damages. We will take the easy case first.
Your Local Notes
_________________________________________________
_________________________________________________
588
other is to file a motion under Rule 12. Suppose, for example, defendant files a motion to
dismiss under FRCP, Rule 12(b)(6), the motion
is denied, and defendant then fails to file an answer. Defendant has appeared in the action by
filing the motion, but is in default for not filing
an answer. In such a situation, the clerk cannot
issue the default judgment (but the judge can,
see below).
2.
The defendant has capacity to be sued. If defendant is below the age of adulthood, or is insane,
or is otherwise incompetent to defend a lawsuit, the clerk cannot enter a default judgment;
see FRCP, Rule 55(b)(1). [Again, the judge may
be able to, but only if the persons guardian or
conservator has appeared in the action to represent the person; see FRCP, Rule 55(b)(2).]
3.
In the normal, routine default situation, the default has occurred because defendant has simply ignored the complaint and done nothing. (Why would
a defendant do that? Often, when the suit is to collect a debt, defendant has no real defense, and it
would be a waste of money to hire a lawyer. Better
and cheaper to file for bankruptcy than to spend
money defending a lawsuit that cannot be won.) In
practice, suits against minors and insane people do
not happen very often. Therefore, the issue that
usually determines whether the clerk can issue a
default is the question of whether plaintiffs claim is
for a sum certain.
_________________________________________________
If the defendant is a member of the military, no default judgment is allowed unless the court first appoints an attorney to represent the defendant (in
which case, the appointed attorney will of course
immediately file an answer and eliminate the default). The practical effect of the act for our purposes is that we will also need to file an affidavit
stating that defendant is not in the military service (or add such a statement to the affidavit on
damages).
589
SIDEBAR
Consequences of Guessing Wrong
Default procedure is unique in that defendant is usually not around to contest plaintiffs assertions. All
plaintiff need do to get the clerk to issue a default
judgment is submit the right documents. The clerk
takes plaintiffs word for it that the requirements of
FRCP, Rule 55(a), are met. If plaintiff submits an affidavit stating that defendant has not appeared in the
action or that the amount claimed is a sum certain,
the clerk assumes that the affidavit is true and issues
the judgment. As a practical matter, therefore, there is
nothing to stop plaintiff from getting the clerk to issue
a default judgment even in cases that do not qualify.
A reputable attorney would, of course, never deliberately lie in an affidavit. To do so would be unethical and could conceivably lead to bar disciplinary proceedings or worse. The real problem is that the case
law is quite inconsistent and unpredictable on issues
like what a sum certain is and what an appearance is.
Suppose, for example, we do some legal research to try
For examples of the motion for judgment, affidavit, and judgment see Step 3 in the Learning by
Example section later in this workshop.
Your Local Notes
_________________________________________________
_________________________________________________
Judgments That Require the Judges InvolvementIf the case does not qualify for issuance of
a judgment by the clerk, the alternative is to apply
to the judge. The basic procedure is the same as
that for obtaining judgment from the clerk, except
that the motion for judgment by default is directed
to the court instead of to the clerk. There are, however, a few additional complications, as we will see
in Steps 4 and 5.
Step 4
We have already seen that if defendant has appeared in the action, the clerk cannot issue a default
judgment and our motion for default judgment will
have to go to the judge. Additionally, if defendant
has appeared, FRCP, Rule 55(b), requires us to give
defendant notice of our application for default judg-
ment, at least 3 days before any hearing on our application takes place. (For more about default hearings, see Step 5.)
You may be wondering why the rules would require giving notice to a defendant who is in default.
If defendant cannot be bothered to comply with the
rules and file an answer, why should we have to give
him notice of anything? One reason is that if a defendant has taken enough action to constitute an appearance, it is less likely that he intended to default.
Misunderstandings sometimes arise. For example, it
may be that defendant did not file an answer due to
a belief, mistaken or otherwise, that plaintiff had
granted an extension of time. If the case were allowed to proceed to judgment with no notice to the
defendant, it is likely that defendant would move to
set aside the default judgment (see sidebar). The
court would spend time holding a default hearing
and then hearing the motion to set aside the default
judgment. The end result most of the time would be
that the court would allow defendant to file an answer and the case would proceed. Better to require
notice, and give defendant a chance to contest the
default before the situation degenerates.
What does it take for defendant to make enough
of an appearance to require us to give notice of default? Clearly, filing a notice of appearance would
suffice, as would filing any other paper such as a
motion to dismiss, motion for more definite statement, or motion to strike. But some appellate
590
SIDEBAR
Setting Aside a Default
Some defaults happen because the defendant decides
to ignore the lawsuit, skip town, or file bankruptcy.
Sometimes, however, defendants attorney fails to file
an answer because of a mistake or misunderstanding:
an extension is misunderstood (a good reason for always confirming extensions in writing); the offices
docketing clerk miscalculates the due date for the answer and no one catches the mistake; the responsible
attorney goes home sick at the wrong time and the
task of filing the answer falls through a crack.
Fortunately, all is not lost (althoughtrust us
having to explain this kind of mishap to a client is punishment enough). Consistent with the federal courts
general preference for deciding cases on the merits
where possible, FRCP, Rule 55(c), allows the judge to
set aside a default, or even a default judgment, in an
appropriate case: For good cause shown, the court
may set aside an entry of default and, if a judgment by
default has been entered, may likewise set it aside in
accordance with Rule 60(b). FRCP, Rule 60(b)(1), allows the court to relieve a party from the effect of a
judgment upon a showing of mistake, inadvertence,
surprise, or excusable neglect.
What sort of showing must the defaulting party
make to convince the judge to set aside the default?
courts have gone much further, even deeming a letter from defendant to plaintiffs attorney an appearance for purposes of FRCP, Rule 55. When in doubt,
we would give the notice; see the sidebar on Consequences of Guessing Wrong.
The notice, if required, can be of the kind that
we have seen repeatedly in these workshops: a
filed court paper, with caption and certificate of
service, stating the date and time of the default
hearing. See Step 4 of the Learning by example section for an example. FRCP, Rule 55(b)(2), requires
the notice to be served. Service may be by mail
as provided by FRCP, Rule 5(b), or, if defendants
address is unknown, Rule 5(b) allows plaintiff to
serve the notice on defendant by leaving it with the
clerk of the court.
Your Local Notes
_________________________________________________
_________________________________________________
Step 5
If the damages that plaintiff is claiming do not qualify as a sum certain, then the court will need to hear
evidence to determine the amount of the default
judgment. FRCP, Rule 55(b), provides:
If, in order to enable the court to enter
judgment . . . it is necessary to . . . determine
the amount of damages or to establish the truth
of any averment by evidence . . . the court may
conduct such hearings . . . as it deems
necessary and proper and shall accord a right
of trial by jury to the parties when and as
required by any statute of the United States.
As a practical matter, the court will schedule a
number of default hearings for the same time period, usually before a magistrate judge or other judicial officer (not a district judge; federal district
judges are too busy to spend time on routine default
hearings). At the hearing, the cases will be called
Step 6
591
592
Procedure for taxing costs: The procedure for taxing costs in federal district court is not very well
spelled out in the Federal Rules of Civil Procedure.
FRCP, Rule 54(d), does not tell us what the party
seeking costs is supposed to do, or when he is supposed to do it. FRCP, Rule 54(d)(1), states: Such
costs may be taxed by the clerk on one days notice.
On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.
In practice, the party entitled to costs prepares
and files a bill of costs itemizing the expenses
sought to be taxed. See 28 U.S.C. 1920, which provides that a bill of costs shall be filed in the
case. . . . The bill of costs is typically a printed
form with blanks in which the totals for each category can be listed. (The standard bill of costs form
is available by download from many U.S. district
court Internet sites; go to www.uscourts.gov, follow the links to the district court of interest, and
look for forms links.) Copies of receipts and itemizations of each expense category are attached to
the bill of costs. The printed form bill of costs also
includes a declaration for signature by the prevailing partys attorney, affirming that the costs listed
are correct and properly taxable. (For a sample bill
of costs, see Step 6 in the Learning by Example section later.)
Many federal district courts have adopted local
rules filling in some of the gaps left by FRCP, Rule
54(d), and specifying the procedure for taxing costs
in more detail. For example, Local Rule 54-8.03 of
the U.S. District Court for the Eastern District of
Missouri states:
A party seeking an award of costs shall file a
verified bill of costs, upon a form provided by
the Clerk, no later than twenty (20) days after
entry of final judgment pursuant to Fed.R.Civ.P.
58. Failure to file a bill of costs within the time
provided may constitute a waiver of taxable
costs. Each party objecting to a bill of costs
shall file, within fourteen (14) days of being
served, a memorandum stating specific
objections. Within five (5) days after being
served with the memorandum, the moving
party may file a reply memorandum. The Clerk
shall tax costs as claimed in the bill if no timely
objection is filed.
We can summarize the usual sequence of procedural steps for taxing costs as follows:
1.
2.
3.
4.
If objections are filed, a hearing is held to decide which costs are properly taxable. Once
the total amount of taxable costs is established
(or immediately, if no objection is filed) the
clerk taxes the costs. The clerk does this by
noting the amount of costs taxed on the bill of
costs form, and signing and dating it. The bill of
costs is filed in the case file and becomes part
of the record.
You may be wondering how the costs get included when the judgment is collected. After all, the
judgment is typically entered before the costs are
taxed, and usually does not specify the dollar
amount of the costs. The answer is that, if a dispute
arises and it is necessary to establish the exact
amount, the clerk will provide a certificate showing
the amount of costs that were taxed. The judgment,
by including the words and costs or some similar
language, serves as notice to the world that there
are some costs to be paidanyone who wants to
know the amount can find out from the clerk.
593
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
594
Obtaining a Default
Judgment: Learning
by Example
Now we put our knowledge of default judgment procedure into practice, using an example drawn from
our Martin v. Collins hypo. Assume the following:
Shannons lawsuit has been filed and properly
served on Park Hotels Group, Inc. Roger Yarborough (Dr. Collinss attorney) has agreed to waive
service of the summons and complaint, and the required waiver has been filed. Before the answer is
due, Yarborough files a motion to dismiss under
FRCP, Rule 12(b)(6). The court denies the motion.
Unfortunately, when the courts minute entry denying the motion arrives, the regular mail clerk in
Yarboroughs firm is out sick. The secretary who is
filling in does not realize that a denial of a motion to
dismiss starts the clock running on the deadline for
filing an answer, and so does not docket the answer
deadline in the office calendar. Yarborough, who is
in the midst of a 4-week trial at the time, glances at
the minute entry, feels momentarily annoyed that
the court has denied his motion, and does not notice the absence of the docketing stamp. By the time
the deadline arrives, Yarborough is busy with another trial, and the answer is never filed.
The deadline has passed a week ago, and Allen
Porter (Shannons attorney) assigns us to analyze
the situation and do what is appropriate.
Step 1
3.
Step 2
595
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation;
)
AFFIDAVIT OF DEFAULT
)
)
)
)
Defendants.
_______________________________________ )
)
)
STATE OF ARIZONA
)
County of Maricopa
)
Allen Porter, being first duly sworn, upon his oath states:
1. I am the attorney for plaintiff in the above-entitled action.
2. A waiver of service of the summons and complaint on behalf of defendants Arthur Collins and
Jane Doe Collins, whose real name is Anne R. Collins, was filed pursuant to Rule 4(d), Federal
Rules of Civil Procedure, on [date].
3. Defendants Collins filed a Motion to Dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil
Procedure, on [date]. The court denied the motion on [date] and notified the parties by
minute entry dated [date]. The time allowed for defendants Collins to answer plaintiffs
complaint has expired, and defendants Collins have not answered plaintiffs complaint.
DATED this _____ day of __________, 20 ___.
Allen Porter
Dated at Phoenix, Arizona this ___ day of __________, 20 ___.
Clerk of Court
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this _____ day
of __________, 20 ___.
Notary Public
596
)
)
)
Plaintiff,
)
)
)
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation;
)
REQUEST TO ENTER DEFAULT
)
)
)
)
Defendants.
_______________________________________ )
)
)
To: Clerk of the U.S. District Court for the District of Arizona
Defendants Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins, having failed to
answer plaintiffs complaint herein following the denial by the Court of said defendants Motion to
Dismiss pursuant to Rule 12(b)(6), and the time for answering having expired, you are requested to
enter their default pursuant to Rule 55(a), Federal Rules of Civil Procedure.
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
Attorneys for plaintiff
Step 3
Step 4
597
)
)
)
Plaintiff,
)
)
)
)
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation;
ENTRY OF DEFAULT
)
)
)
)
Defendants.
_______________________________________ )
)
)
Defendant having waived service of the summons and complaint pursuant to Rule 4(d), Federal
Rules of Civil Procedure, and having failed to answer plaintiffs complaint, and the time allowed by law
for answering having expired, the default of defendant is hereby entered.
DATED this _____ day of __________, 20 ___.
Plaintiff,
)
NO. CV98-01456 PHX JL
)
)
)
APPLICATION TO COURT
FOR ENTRY OF FINAL
JUDGMENT BY DEFAULT
v.
ARTHUR COLLINS and JANE DOE
COLLINS, husband and wife; PARK
HOTELS GROUP, INC., a Delaware
corporation;
)
)
)
)
)
)
598
)
)
Plaintiff applies to the Court pursuant to Rules 55(b)(2) and 54(b), Federal Rules of Civil Procedure,
for entry of final judgment by default, after notice and hearing, in favor of plaintiff and against
defendants Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins, and awarding
damages in favor of plaintiffs and against said defendants in an amount to be determined after hearing.
This application is made upon the ground that said defendants have failed to file an answer to
plaintiffs complaint following the Courts denial of said defendants Motion to Dismiss dated [date],
that the time for filing said defendants answer has expired, and that said defendants default was
entered on [date].
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
Attorneys for plaintiff
Figure W186 Notice of Application to Court for Entry of Final Judgment by Default
SIMON & PORTER
Allen Porter
1000 North Central Avenue, Suite 2800
Phoenix, Arizona 85004
(602) 555-4321
Attorneys for plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
SHANNON MARTIN, a single woman,
Plaintiff,
)
NO. CV98-01456 PHX JL
)
)
)
)
NOTICE OF PLAINTIFFS
APPLICATION TO COURT
FOR ENTRY OF FINAL
JUDGMENT BY DEFAULT
v.
)
)
)
)
)
)
Defendants.
_______________________________________ )
)
)
Notice is hereby given that on [date], at [time], or as soon thereafter as counsel may be heard, at
the U.S. District Court for the District of Arizona, 230 North First Avenue, Phoenix, Arizona, Room 305,
the undersigned will make application to the court for final judgment by default against defendants
Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins. A copy of plaintiffs Application
to Court for Entry of Final Judgment by Default accompanies this notice.
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
Attorneys for plaintiff
Step 5
599
Step 6
600
601
602
5.
(Step 3) Assume that the clerk has now entered the default. Prepare the application for
judgment by default.
6.
7.
(Step 5) Decide whether a hearing will be required. Write a short memo to the file summarizing your conclusions. Include citations to applicable rules. If you conclude that a hearing is
required, briefly state in your memo what evidence should be presented at the hearing.
8.
9.
EXERCISES
In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
1.
2.
Look for any local rules affecting entry of default, entry of default judgment, or taxation of
costs. Write a short memo to your supervising
attorney summarizing your findings.
3. (Step 1) Determine the due date for the answer. Apply the appropriate tests to analyze
whether Park Hotels is in default. Write a
short memo to your supervising attorney describing your findings and recommending
what should be done next. Include citations to
applicable rules.
4.
PRACTICE POINTERS
Wrapping Up after Trial
However tempting it might be to simply pack up the files, the trial notebooks, and the boxes of documents and put them in storage after the trial is
over, your work is not yet done. The case is not necessarily overthe opposing party may file post-trial motions or an appealand what you thought was
behind you may come back to haunt you again. Therefore, it is imperative that
you reorganize everything, returning it to pretrial order. Doing this now, while
the case is still fresh in your mind, will save you and your attorney time if you
have to reopen the files to prepare an appellate brief or do whatever else
might need to be done.
In this process be sure you locate copies of all the exhibits introduced by
all parties during the trial, collect all of the trial notes and organize them in a
folder, find any research done before or during the trial and place it in a separate folder, and make sure you have copies of all the deposition transcripts
you relied on during the trial. Download all the computer files and mark each
tape or floppy disk with the case name.
603
Once this reorganization is complete, prepare a memo for the file. In it include the name and phone number of the court reporter who prepared the
trial transcript (in case you need to order a transcript), the results of any
polling of the jury, and an inventory of what is contained in each newly packed
box (including the location of the most important documents and the computer tapes or disks as well as the information they contain).
TECHNO TIP
If you have already done the asset search
referred to in the Techno Tip for Chapter 8 you already have some of the information necessary to begin collection
on the judgment. Since there is no national depository for judgments (other
than child support orders), it is necessary to record your judgment in each
county where you believe the judgment
debtor has property if you wish to im-
FORMS FILE
Summarize the rules in your jurisdiction regarding the entry of a
judgment, the obtaining of a default judgment, and the taxing of costs.
Include copies of a bill of costs form and all the affidavits and other
forms associated with obtaining a default judgment in your forms file.
KEY TERMS
Bill of costs
Prevailing party
Res judicata
Taxation of costs
19
Ethics in Litigation
WORKSHOP
INTRODUCTION: IMPORTANCE
OF ETHICS
WHERE DO ETHICAL
STANDARDS COME FROM?
In the preceding eighteen workshops, we have examined most of the procedural weapons available
to litigators and litigation paralegals, and we have
considered how and when each might best be
used to help us win a lawsuit. Along the way, we
have attempted to point out some of the ethical
dilemmas that arise in litigation, but our main focus has been on questions of how to rather than
whether to.
In this final workshop we turn our attention explicitly to the ethical side of litigation. We dispense
with our usual step-by-step formula and instead examine, through the use of discussion hypos, several
situations that arise often in litigation and that raise
difficult ethical issues. We make no pretense of comprehensive coverage of the law of ethics; that is a
task best left for an ethics text. We cannot become
experts on the law of ethics in one workshop, but we
can begin developing an ethical sense of smell
an instinct for recognizing when we are about to enter ethically questionable territory.
In our view, there is no more important skill for
a litigation paralegal.
CONSEQUENCES OF BREAKING
THE RULES
Each state has a system for enforcing its ethical
rules. Typically, the primary mechanism for enforcement is a disciplinary proceeding against the
attorney who is accused of violating the rules of
ethics, administered (at least in the initial phases)
by the states bar association. Each state has its own
rules and procedures for investigating complaints
against attorneys and, if appropriate, administering
punishment.
The punishment meted out to an attorney who
is found to have violated the rules of ethics can
range from mere censurein effect, an official
scoldingto disbarment and permanent loss of the
license to practice law. Another option is suspensionprohibition from practicing law for a specified period of time.
You may be wondering, what do bar association
rules of ethics have to do with you as a paralegal?
606
607
Commandment 3: Keep the Client InformedAnother common cause of bar complaints is lack of communication. Clients are paying
substantial fees for our services, and they expect to
be kept abreast of what is going on in their cases.
ABA Rule 1.4 makes this mandatory: A lawyer shall
keep a client reasonably informed about the status
of a matter and promptly comply with reasonable
requests for information.
Apart from being ethically required, good client
communication is simply good business. One easy
way to keep clients informed of what is going on
and one that pays rich dividends in terms of client
satisfactionis to make it a habit to copy the client
on everything (after getting your supervising attorneys approval, of course). When you write a letter,
file a paper with the court, receive a paper from opposing counsel, send the client a copy. This habit
will also improve the spirit in which bills are received because it gives clients a tangible sample of
what they are paying for.
the file we mean get in the habit of writing confirming letters, case notes, and memos to the file.
Litigation files have a section for attorney notes.
Whenever you do something relating to a case,
make notes of what you did and date them. When
you speak to the client, make a note of what you
said. If your duties include contact with the opposing lawyer or paralegals concerning anything involving extensions, deadlines, or other promises by
either side, send confirming letters. We cannot cite
an ABA model rule requiring you to do these
thingsthis commandment is based on painful experience (gained, fortunately, as the attorney, not
the person accused). Losing a lawsuit is often a
wrenching experience for clients, and they sometimes react by looking for someone to blame. If
someone ever does accuse you of ethical impropriety, you will need to be able to prove exactly what
happened. You will be in a far better position if you
can point to documentation in the file to back up
your version of the facts.
608
ETHICAL LIMITS ON
LITIGATION TACTICS
The hypotheticals that we present later in this workshop are intended to explore the ethical limits on the
kinds of tactics that we can use against opposing
parties. We are, of course, ethically bound to do our
best to win our clients cases. We have already seen
that the ABA comment to Model Rule 1.3 encourages
us to take whatever lawful and ethical measures are
required to vindicate a clients cause or endeavor.
As the foregoing comment implies, however,
there are limits beyond which we cannot go in advocating our clients causes, even if the fate of the lawsuit hangs in the balance: We may not act in ways
that are not lawful and ethical. These limits are not
always easy to apply. We do not want to win by cheating, but neither do we want to lose through excessive
caution. It is therefore crucial for litigators and litigation paralegals to know exactly where the ethical
lines are (and, of course, to stay within them).
We will now try to list some of the things that we
may not do in litigation. Many of the prohibitions are
unsurprising and involve conduct that you would,
we hope, reject on the basis of common sense alone.
Others, such as the restrictions on contacting witnesses who are employed by a corporate opposing
party, are less obvious and more technical in nature.
The sources for the ethical restrictions that we
discuss are the ABA model rules and the Federal
Rules of Civil Procedure. You will notice that the
ABA model rules often begin with the phrase, A
lawyer shall not. . . . It will come as no surprise that
what lawyers cannot do themselves, they cannot do
indirectly by having a paralegal perform the prohibited act. ABA Model Rule 5.3 makes a lawyer responsible for known conduct of a paralegal that
would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer. . . .
The ethical principles that we will draw from the
Federal Rules of Civil Procedure arise from the certification provisions of FRCP, Rules 11 and 26(g). FRCP,
609
Rule 11, provides that, by presenting a pleading, motion, or similar paper to the court, an attorney is automatically certifying that it meets the standards set
forth in Rule 11(b). FRCP, Rule 26(g), provides for a
similar implied certification with respect to discovery requests, responses, and objections. We discuss the specific standards imposed by FRCP, Rules
11 and 26(g), under the appropriate topics later. Because only an attorney can sign a pleading or present a paper to the court, these provisions, and the
punishments for violating them, apply only to attorneys. However, a paralegal who carelessly or improperly prepares a paper that the attorney later
signs, and thereby subjects the attorney to sanctions under FRCP, Rule 11 or 26(g), should expect to
share in the unpleasantness that will surely follow.
610
611
Witness Tampering and Dealings with ThirdParty WitnessesIf we were unscrupulous, an obvious way to improve our chances of winning would
be to engineer the testimony of nonparty witnesses.
Several of the rules of ethics seek to forestall such
tactics, and, of course, serious witness tampering is
a crime.
Needless to say, it is unethical to attempt to induce a witness to lie. ABA Model Rule 3.4(b) states:
A lawyer shall not . . . falsify evidence, counsel or
assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. . . .
It is also a federal crimesubornation of perjuryto attempt to influence a witness to lie under
oath in a proceeding in federal court. 18 U.S.C.
1622 provides:
Whoever procures another to commit any
perjury is guilty of subornation of perjury, and
shall be fined under this title or imprisoned not
more than five years, or both.
Subornation of perjury is also a crime under the
laws of each state.
Bribing a witness is, of course, also a crime; see
18 U.S.C. 210(b)(4). And 18 U.S.C. 1512(b) imposes criminal penalties on most other kinds of witness tampering:
Whoever knowingly uses intimidation or
physical force, threatens, or corruptly
persuades another person, or attempts to do
so, or engages in misleading conduct toward
another person, with intent to . . . influence,
delay, or prevent the testimony of any person in
an official proceeding . . . shall be fined under
this title or imprisoned not more than ten years,
or both.
It is unethical for a lawyer to attempt to persuade a nonparty witness not to testify, or to withhold information from the opposing party, unless
the witness is a relative or employee of the lawyers
client. ABA Model Rule 3.4(f) states:
A lawyer shall not . . . request a person
other than a client to refrain from voluntarily
giving relevant information to another party
unless:
(1) the person is a relative or an employee or
other agent of a client; and
(2) the lawyer reasonably believes that the persons interests will not be adversely affected
by refraining from giving such information.
When contacting a nonparty witness, the
lawyer may not try to mislead the witness into
thinking that the lawyer is in a nonadvocative role.
ABA Model Rule 4.3 states:
612
ETHICS IN LITIGATION:
TOPICS FOR DISCUSSION
As you read the foregoing summary of ethics rules,
you may have been struck by the impression that
many of these standards seem at odds with the real
world of litigation. Many of the rules seem to conflict with each other, and especially with the
lawyers duty under ABA Model Rule 1.3 to take all
appropriate measures to win the case for the client.
We now give you an opportunity to explore the
application of ethics rules to several commonplace
situations that we regard as the most ethically troublesome from a practical standpoint. The hypotheticals that follow are intended primarily for class dis-
613
614
615
PRACTICE POINTERS
Professionalism
The ethical canons and considerations are the legal professions attempt
to encapsulate the most critical rules of professionalism. As with any codified
law, however, these rules tend to represent the bottom line for the profession.
Mere adherence to them does not ensure that a member of the legal profession has attained a high standard of practice any more than an individuals adherence to the law of the state indicates that he is a model citizen. Professionalism requires more than avoiding a violation of the ethical code. It is a
way of conducting yourself that brings honor to the profession, that enhances
your sense of integrity, and that creates a sense of trust with all with whom
you come into contact.
continued
616
PRACTICE POINTERS
Professionalism continued
What kind of actions and behaviors does professional conduct entail? It
means being someone who does what you say you are going to do when you
say you are going to do it. If you say you are going to call on a certain day, you
do. If you promise to deliver something by a particular date, you do. If you
commit to taking on a project, you do it.
Legal professionals are civil at all times, no matter what the circumstances. They do not belittle or ridicule others and they do not harass their
opponents. They cooperate as much as possible in scheduling meetings and
court dates and are courteous about granting time extensions and continuances when circumstances dictate their necessity. They actively seek ways to
ease the negotiation and litigation processes by trying to resolve matters as
expeditiously and fairly as possible. At the very least, they do nothing to further antagonize their opposition. They advocate vigorously for their clients
but remain impeccably honest with the court and their opponents. In short,
they practice the Golden Rule of litigation and never do to another what they
would not want done to them.
Being a professional does not imply being a workaholic. The law is often
depicted as a jealous mistress and many a lawyer and paralegal have been
seduced by its never-ending demands. The healthy professional, however, has
a balanced life that denies neither family, friends, nor personal development.
Such a person also contributes to the well-being of the community by doing
pro bono (volunteer legal work) and public interest work. They also support
the profession as a whole by serving on committees, attending professional
meetings, and volunteering to organize and participate in workshops, conferences, and seminars.
As paralegals strive to shape their place in the legal community, they
would be well advised to avoid the traps lawyers have fallen into. Seeds of discontent permeate the legal profession. They can be seen in the disproportionate numbers of lawyers experiencing problems with substance abuse,
marital crises, emotional instability, and other problems that reflect the
burnout and stress that has become characteristic of their profession. As
paralegals mold their professional image, they would do well to create a
model that reflects balance and integrity for their profession as well as competence and skill.
617
TECHNO TIP
Although the rules have not yet been
written, ethics and the Internet (and intranets for that matter) need to be considered prior to use of the Internet. Issues abound about lawyer advertising
and which states ethical rules apply to
a lawyers or law firms web site. Since
the site is accessible from anywhere in
the country could New York rules apply
to a California-based web site? If a major firm has lawyers that are licensed in
a total of twenty different states, must
FORMS FILE
Include a copy of the code of professional conduct prepared by
NALA, NFPA, and your local paralegal organization (if they have
one) in your forms file. You might also consider including copies of
any significant legal opinions (or summaries of those opinions) relating to paralegals.
KEY TERMS
Disciplinary proceeding
Tribunal
APPENDIX A
Answers to Practice Exams and Litigation
Lingo and Litigation Logistics Features
CHAPTER 1
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
D
E
B
D
D
B
D
C
D
civil procedures
substantive law
civil action
injunction
judgment
jurisdiction
venue
arbitrator
service
pleadings
issue
documentary; testimonial
trial, verdict
pleadings
discovery
alternative dispute resolution
arbitrator; mediator
F
F
F
F
F
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
T
T
T
F
F
F
T
T
F
F
T
F
T
T
Litigation Lingo
DOWN
1. litigate
3. venue
4. court
5. evidence
8. jurisdiction
9. arbitrator
10. injunction
ACROSS
2. service
6. issue
7. pleading
8. judgment
9. adjudicate
11. procedural
12. motion
13. mediator
14. ADR
15. concurrent
620
Litigation Logistics
1. Elements of negligence
2. Time periods for filing complaint, answer,
doing discovery, etc.
3. Which courts have jurisdiction; venue
4. File complaint
5. Extent of damages to vehicle
6. Does insurance company have legal obligation
to pay
7. Copy of defendants insurance policy
8. Insurance company refuses to provide
discovery materials you request
9. Locate assets of defendant, foreclose liens,
and seize assets; defendant may appeal
10. Arbitration
CHAPTER 2
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
B
D
C
E
A
D
E
E
A
D
Constitution
separation of powers
U.S. Supreme
trial; appellate
district; U.S. Court of Appeals
circuit
appellant; brief; appellee
reversed; overturned
court clerk
presiding judge
secretary
ex parte
forum; forum shopping
APPENDIX A
Litigation Lingo
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
citation
district court
brief
appellee
annotations
forum
presiding judge
court clerk
small claims court or justice of the peace
court or city court
circuit
reverses
local rule
discretionary
court administrator
judges secretary
Federal Practice and Procedure by Wright
and Miller
pocket parts
Litigation Logistics
1. State court, federal court, small claims court.
You would have to know the amount of
damages, what the provisions of the Federal
621
APPENDIX A
CHAPTER 3
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
A
D
D
C
D
B
A
D
C
sovereign immunity
demand
pleadings; complaint; answer
allegations; caption; prayer for relief
cover or information sheet
summons
process server; affidavit of service
affidavit
appear; answer
affirmative defense
counterclaims; cross-claims
third-party; severing
default judgment
reply
forum; removal
issue has been joined
F
F
F
T
T
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
F
T
T
T
T
F
T
T
T
F
F
T
F
F
F
F
F
F
T
T
F
F
F
T
T
T
F
Litigation Lingo
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
complaint
default
reply
allegations
caption
service
removal
affidavit
sovereign
demand
joined
cross
affirmative
forum
prayer
elements
answer
appear
counterclaim
summons
Litigation Logistics
1. You would need to check to see if there was
jurisdiction, both of subject matter and of the
person. If no federal questions were involved
you would have to meet the diversity
622
requirements of 28 USC 332, currently
$75,000. As plaintiff you might want to stay in
state court but you should always consider
the benefits of federal court.
a. They would need to meet the requirements
of 28 USC 1441 (but see also 28 USC 1445).
b. Each state has its own requirements but in
Arizona, for example, each county has its
own local rules. In Maricopa County, Local
Rules 2.16 and 2.17 set the format and font
size requirements.
Each state has its own requirements but
in Arizona, for example, each county has its
own local rules. In Maricopa County, Local
Rule 3.1 requires a cover sheet and 3.10(b)
requires that a certificate of compulsory arbitration be filed with the complaint. The
certificate is also required by Arizona Rules
of Civil Procedure (ARCP), Rule 5(i).
c. Careful review of the Federal Tort Claims
Act and cases interpreting the act.
d. Your imagination is the only limitation.
Practically speaking the courts can only
award money. Asking for other relief in
settlement is generally not fruitful.
2. Analyze your case as suggested in this chapter
including all possible claims (dont forget
intentional torts).
a. Each state has its own requirements but in
Arizona, for example, ARCP, Rule 4(d), sets
forth the requirements of who may serve
the complaint. ARCP, Rules 4.1 and 4.2,
define how service may be made. ARCP,
Rule 4(i), requires service to be complete in
120 days. See also FRCP, Rules 4(c) and (m).
b. Check your rules for service by publication
and service by mail. In Arizona, for example,
ARCP, Rules 4.1(n) and 4.2(c) and (f).
c. Obtain and file a waiver of service (usually
required to be notarized).
d. She must file a return of service as required
by state rule. Usually it is an affidavit
stating the time, place, and manner of
service and upon whom it was made. In
Arizona see ARCP, Rules 4(g), 4.1(n) and
(o), and 4.2(b) and (c).
3. Most states allow 20 days for an answer to be
filed if served within the state and 30 days if
served outside of the state. See ARCP, Rules
12(a), 4.2(d) and (l). See also FRCP, Rule 12(a).
a. Yes. See FRCP, Rule 12(a), and ARCP, 12(a).
b. If a timely answer has not been filed a default
may be sought. Note that if personal service
was not used additional requirements may
be required for service by mail and/or
service by publication. Defaults in federal
APPENDIX A
CHAPTER 4
Practice Exam
1. D
2. B
623
APPENDIX A
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
C
D
D
C
D
A
D
motion
testimonial; documentary
excluded; admissible
mandatory
deposition
transcripts
subpoena
10
expert
interrogatories; propounding; responding
request for production of documents;
subpoena duces tecum
request for entry upon land
for inspection
independent medical examination
F
T
T
F
F
F
T
F
T
T
F
T
T
T
F
F
F
F
T
T
T
T
Litigation Lingo
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
deposition
transcript
impeach
duces tecum
examine
propound
expert
interrogatory
production
notice of IME
11.
12.
13.
14.
15.
16.
17.
18.
disclosure
exclude
admit
admission
deponent
discovery
subpoena
inspection
Litigation Logistics
1. a. Yes. Parties can always be deposed. See
FRCP and ARCP, Rules 30. Rules for out-ofstate deponents vary. You may have to go
to the defendants home state for the
deposition or pay to have him come to
your state.
b. Give appropriate notice. If a nonparty, a
subpoena is required. The federal rules
require reasonable notice. Many states
have a set time period such as 10 days
notice.
c. He should seek a stipulation to continue
the deposition date, which normally will
be granted by opposing counsel. If a
stipulation cannot be agreed to, he would
need to seek a protective order. See FRCP
and ARCP, Rules 14. See also FRCP and
ARCP, Rules 26(c).
d. FRCP, Rule 30, does not limit who may be
deposed although Rule 30(a)(2)(A)
requires leave of the court to conduct more
than 10 depositions. Many states restrict
depositions of nonparties. See, for
example, ARCP, Rule 30.
e. You may have to wait for his report to be
prepared although all jurisdictions allow
for the deposition of an expert witness.
See FRCP and ARCP, Rules 26(b)(4).
2. a. Most states limit the number of
interrogatories. Many states, however,
with court-approved uniform interrogatories do not count them (or
sometimes their subparts) against the
total. Additional interrogatories may be
served with leave of the court. The
federal rules limit the number to 25. See
FRCP, Rules 25 and 26(b)(2), and ARCP,
Rule 33.1 (40 interrogatory limit).
b. No. See FRCP, Rule 25, and ARCP, Rule 33.1.
c. The same number. It is based on who is the
party, not how many partners there are.
The interrogatories are served on the
partnerships attorney.
d. For nonuniform interrogatories you
generally have to leave enough space for
the answer.
624
e. Any applicable ground will support an
objection. Objections must be made with
specificity. See FRCP, Rule 33, and ARCP,
Rule 33.
f. Usually 30 or 40 days, unless served with
the complaint. See FRCP, Rule 33 (30 days),
and ARCP, Rule 33(a) (40 days).
3. a. File a request for production of documents.
They may, however, be required to be
disclosed pursuant to mandatory
disclosure rules. See FRCP, Rules 34 and 45,
and ARCP, Rule 34 and 45.
b. You would need a subpoena duces tecum.
The party is usually under an obligation to
obtain documents within the partys
control to respond to a Rule 34 request. See
FRCP, Rule 34, and ARCP, Rule 34.
c. You do not usually need court permission. If
inspection of the premises is relevant to the
lawsuit, a Rule 34 request is all that is
needed. You do need to give reasonable
notice and, generally, the time period for
documents applies to inspection of property.
See FRCP, Rule 34, and ARCP, Rule 34.
d. After researching the issue, and coming to
the conclusion that the papers are
relevantand discoverableattempts to
negotiate disclosure of the papers with
opposing counsel should be made. If
negotiation is futile, a motion to compel
discovery could be filed. Most courts
require an affidavit of the attempts to
resolve the discovery issue before a motion
to compel is filed. See FRCP, Rule 37, and
ARCP, Rule 37. If an order is obtained and
not complied with, a motion for sanctions
would be in order. See FRCP, Rule 34, and
ARCP, Rule 37.
4. a. Many state courts and the federal courts
have mandatory disclosure requirements.
The information that must be disclosed,
the timing of the disclosure, and the effect
of failing to disclose vary. See FRCP, Rule
26, and ARCP, Rule 26.1.
b. Yes. You may also have a duty to disclose
the experts qualifications and opinions
without being asked to do so. Most states
allow, in addition to the partys deposition,
that the deposition of experts be allowed
without leave of the court. See FRCP, Rules
26(a)(2) and (b)(4), and ARCP, Rules
26.1(a)(6) and 26(b)(4).
c. Generally yes. The federal rules do not
limit the number of requests for admission
that can be made although local rules may
APPENDIX A
CHAPTER 5
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
C
A
D
D
C
A
D
B
D
memorandum of points and authorities
response; reply
motion papers
oral arguments
under advisement
minute entry
matter of law
motion to strike
summary judgment; partial motion for
summary judgment
for leave to amend
for a more definite statement; to dismiss
to compel discovery
for protective order
for sanctions
for a pretrial conference
T
F
T
F
F
T
F
F
T
F
T
F
F
F
T
T
T
T
F
F
F
T
F
625
APPENDIX A
48. T
49. T
50. T
Litigation Lingo
DOWN
1. propound
2. amend
3. pretrial
4. scheduling
5. entry
6. sanctions
7. FRCP
8. response
9. summary
10. disclosure
11. advisement
12. claim
13. trial
ACROSS
1. definite
2. compel
3. transcript
4. strike
5. admit
6. dismiss
8. reply
9. order
10. duces tecum
11. expert
12. production
13. minute
14. points
15. depose
16. motion
17. IME
Litigation Logistics
1. File a motion for partial summary judgment on
the issue of immunity. See FRCP, Rule 56, and
ARCP, Rule 56.
In federal court you normally obtain the
hearing date from the courts staff and serve
notice of the hearing with the motion. Local
rules modify how (and if) a hearing can be
had. If no request for oral argument is made
the court will enter its ruling based on the
pleadings submitted. In Arizona, for example,
you have 15 days after service of the motion to
file your response. See FRCP, Rules 56 and 78,
and ARCP, Rule 56.
2. If the answer is responsive it is not
objectionable (not everybody has a detailed
answer for every question). If you believe that
it is obvious that the interrogatory should be
able to be answered, you should consider a
motion to compel (see answers to Litigation
Logistics for Chapter 4).
Motions might be made to dismiss for
failure to state a claim; a motion for more
definite statement (preferred) could be
filed or a motion to strike could be
considered. A careful reading (and proper
research) might preclude the motion to
strike option. See FRCP, Rule 12, and ARCP,
Rule 12. The first two motions do not
generally have a fixed time period for filing.
If, however, you engage in discovery and
otherwise move the case along, it may be
difficult to later say you did not know what
the counterclaim was about. See FRCP and
ARCP, Rules 12 and 12(b)(6).
3. a. You could be ordered to appear for the
I.M.E. if the opposing side filed a motion to
compel and be required to pay the
attorneys fees for the motion. If you
refused to obey then really bad things can
happenincluding having your complaint
dismissed! See FRCP and ARCP, Rule 37.
b. It depends on when you discovered the
school was part of a franchise. If a
responsive pleading has not yet been filed
leave of the court is not required and an
amended complaint could be filed and
served (but why didnt you know it was a
franchise before the original complaint was
filed?). If no responsive pleading is
required, you may have a time limit to file
an amended pleading. If a responsive
pleading has been filed you normally
require leave of the court. See FRCP and
ARCP, Rule 15.
626
4. You would file a motion for partial summary
judgment on the issue of negligence (often no
easy task). States vary about whether oral
argument is by right or at the discretion of the
court. Federal courts are not obliged to grant
oral argument. In Arizona, however, the rule
states the court shall grant a hearing if a
timely request is made. See FRCP and ARCP,
Rule 56.
Most states allow for a scheduling
conference to be held. Some are mandatory and
others are set only at the request of a party or
on the courts discretion. If you are having a
problem with scheduling you could request a
conference even if your rules do not specifically
provide for one. See FRCP and ARCP, Rule 16.
You could also file a motion for an order setting
a discovery schedule. You should include the
basis for why the motion is being filed and a
proposed schedule for the court to consider.
CHAPTER 6
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
D
B
C
A
D
B
C
A
B
C
B
D
A
D
C
B
D
A
D
B
mediation
arbitration; mini-trials
med-arb
summary jury trial
binding; nonbinding; de novo
mandatory
court-annexed; private
American Arbitration Association
voluntary
community; transformative
med-arb
APPENDIX A
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
627
APPENDIX A
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
F
F
T
T
F
F
T
T
F
T
T
F
T
T
T
F
F
T
T
F
b.
c.
d.
e.
Litigation Lingo
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
de novo
ombudsman
med-arb
transformative
binding
mediator
mini-trial
summary jury
arbitrator
annexed
f.
g.
h.
i.
Litigation Logistics
1. a. If punitive damages can be sought, ADR
would not appear appropriate. If only
monetary damages are sought (and it
would appear only the amount could be
contested), ADR (arbitration) would be a
viable alternative.
b. Yes. Depending on what issues are being
contested (i.e., is liability admitted?) all
forms of ADR could be used. If only the
amount of damages is contested either
mediation or arbitration would be viable.
c. Yes. Mediation would be best for this
family dispute.
d. Yes. Often construction contracts have
mandatory arbitration clauses for
disputes. Arbitration would be most
appropriate.
e. No. To be able to evict the tenant, you
must have a court order.
2. a. In the Maricopa County Superior Court of
Arizona all cases involving monetary
j.
k.
l.
m.
CHAPTER 7
Practice Exam
1. D
2. B
628
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
C
B
C
A
D
D
B
A
B
B
D
C
A
C
C
trial setting
pretrial order
set and certificate of readiness
in limine
jury instructions
demonstrative
voir dire
peremptory challenge
findings of facts and conclusions of law
opening statements
prima facie; directed verdict
direct; cross
hostile
under the rule
leading
preponderance of the evidence
sandbagging
closing arguments
general; special
general verdict with written interrogatories
hung jury
poll the jury
new trial; judgment notwithstanding the verdict
remittitur
entry of judgment
lodge
statement of costs
F
F
T
T
T
F
F
T
F
T
T
F
T
T
T
APPENDIX A
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
F
T
F
T
T
F
F
F
F
T
T
F
F
F
T
T
T
F
T
F
T
F
T
T
F
T
F
F
F
T
T
T
F
F
F
T
T
T
F
F
T
T
T
F
T
F
F
T
T
T
F
F
Litigation Lingo
1. affirmative defense
2. demonstrative evidence
3. opening statements
629
APPENDIX A
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
pretrial order
motion to set and certificate of readiness
rebuttal
motion in limine
voir dire
entry of judgment
motion for directed verdict
peremptory challenge
closing argument
findings of fact and conclusions of law
taxable costs
cross-examination
hostile witness
form of judgment
prima facie case
special verdict
hung jury
leading question
preponderance of the evidence
motion for judgment notwithstanding
the verdict
24. general verdict with written interrogatories
25. remittitur
26. polls the jury
c.
Litigation Logistics
1. Although states vary in their requirements,
most provide a mechanism to notify the
court that one side, at least, thinks it is ready
for trial. A list of witnesses and exhibits
might be required along with a certificate of
readiness for trial. In federal court the trial
date is usually set at, or shortly after, the
pretrial conference. See FRCP and ARCP, Rule
16.
a. Normally yes. Although they may be called
by different names most courts enter
orders, or sometimes minute entries,
setting the various dates for completing
pretrial matters including the dates for
motions in limine, jury instructions, the
latest date for dispositive motions to be
filed, exhibits to be marked, etc.
1. When ordered by the court.
2. Pretrial statements generally differ
from pretrial orders. Check your state
and local rules carefully.
b. General jury instructions regarding juror
conduct, burden of proof, credibility,
stipulations and the like.
Specific instructions regarding the legal
obligations of each party, defenses, mode
and manner of calculating damages, etc.
1. When required by the pretrial order or
minute entry setting the respective dates,
generally a week or so prior to trial.
2.
a.
b.
c.
630
judges will ask accepted proposed
questions from counsel; others allow
counsel to conduct all voir dire except
background questions. Many judges allow
voir dire by counsel but set time limits or
limit the areas of inquiry. See FRCP and
ARCP, Rule 47.
d. Only those questions reasonably expected
to uncover bias or prejudice.
e. Depends. If you know the judge, and your
case, a court trial may be the best way to
go. If costs, including attorneys fees,
represent a true hardship on the client,
some savings may be had with a trial to the
court. If your case is more legal than
factual or you have an unattractive case
you may want a judge to decide rather than
a jury. In most instances a trial to the court
can only occur by stipulation or when a
jury trial is not allowed.
Findings of fact and conclusions of law
are required only in a trial to the court. Even
then, in many states, they are not required if
no request for them is made by counsel. The
federal rules require findings of fact and law
without the request of a party. See FRCP and
ARCP, Rule 52.
f. Special verdicts are not often used in the
average jury trial. In complex cases or
those where the law is unsettled they are
more common. Using a special verdict is
solely within the discretion of the trial
judge. See FRCP and ARCP, Rule 49.
3. A motion for a directed verdict by the
defendant is usually made at the close of the
plaintiffs case. A motion by the plaintiff is
made at the close of defendants case. Such a
motion must be made before the case is
submitted to the jury. Motions for a directed
verdict are now generally referred to as a
motion for judgment as a matter of law. See
FRCP and ARCP, Rule 50.
a. There is no legally sufficient evidentiary
basis for the jury to find in favor of the
other party. See FRCP and ARCP, Rule 50.
b. Move for a new trial. See FRCP and ARCP,
Rule 59.
The time period varies but is usually 10
to 20 days after entry of judgment (which
can take a substantial period of time if all
procedural avenues are followed). See
FRCP and ARCP, Rule 50 (10 days in federal
court; 15 days in Arizona).
c. Move for a judgment as a matter of law
after the verdict is returned (also known as
a judgment notwithstanding the verdict or
APPENDIX A
d.
4. a.
b.
c.
d.
631
APPENDIX A
e.
5. a.
b.
c.
CHAPTER 8
Practice Exam
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
A
B
C
A
D
D
A
C
B
D
D
judgment
judgment creditor; judgment debtor
stay; supersedes
execution
debtors exam
lien; judgment lien
writ of execution
writ of garnishment
fraudulent conveyance
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
reversible; harmless
cross-appeal
interlocutory
appellant; notice of appeal; appellee
opening; authorities; responding; reply
mandate
T
F
T
T
T
T
F
T
F
F
T
T
F
T
T
T
F
F
F
T
T
T
F
T
F
F
T
F
T
F
T
F
F
F
F
T
T
T
F
F
F
T
T
F
F
T
F
F
T
T
632
Litigation Lingo
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
interlocutory
stay
supersedes bond
garnish
fraudulent conveyance
reversible
appellee
reply
mandate
execution
proof
examination
lien
authorities
Litigation Logistics
1. If the driver had insurance. If not you would
want to check to see that he had nonexempt
assets. If there was insurance you would want
to know if it indemnified for punitive damages
(most do not).
If uninsured, get a judgment. You would
have to review the applicable garnishment
laws and follow the procedures to the letter.
2. After any mandatory waiting periods the
corporation would need to file a supersedes
bond.
a. File a notice of appeal
b. Check the applicable rules of appellate
procedureoften 30 days after the appeal
is at issue (all fees paid).
c. Check the applicable rules of appellate
procedureoften 25 to 30 pages.
APPENDIX A
APPENDIX B
Federal Rules of Civil Procedure for
the United States District Courts
As Amended through December 1, 1997
I.
Rule
1. Scope and Purpose of Rules.
2. One Form of Action.
II.
6. Time
(a) Computation
(b) Enlargement
(c) Rescinded
(d) For Motions - Affidavits
(e) Additional Time After Service by Mail
III.
634
APPENDIX B
Parties
17. Parties Plaintiff and Defendant;
Capacity
(a) Real Party in Interest
(b) Capacity To Sue or Be Sued
(c) Infants or Incompetent Persons
18. Joinder of Claims and Remedies
(a) Joinder of Claims
(b) Joinder of Remedies; Fraudulent
Conveyances
19. Joinder of Persons Needed for Just
Adjudication
(a) Persons To Be Joined If Feasible
(b) Determination by Court Whenever
Joinder Not Feasible
(c) Pleading Reasons for Nonjoinder
(d) Exception of Class Actions
20. Permissive Joinder of Parties
(a) Permissive Joinder
(b) Separate Trials
21. Misjoinder and Non-joinder
of Parties
22. Interpleader
23. Class Actions
(a) Prerequisites to a Class Action
(b) Class Actions Maintainable
(c) Determination by Order Whether
Class Action To Be Maintained;
Notice; Judgment; Actions
Conducted Partially as Class
Actions
(d) Orders in Conduct of Actions
(e) Dismissal or Compromise
23.1 Derivative Actions by Shareholders
23.2 Actions Relating to Unincorporated
Associations
24. Intervention
(a) Intervention of Right
(b) Permissive Intervention
(c) Procedure
25. Substitution of Parties
(a) Death
(b) Incompetency
(c) Transfer of Interest
(d) Public Officers; Death or Separation
from Office
635
APPENDIX B
V.
636
APPENDIX B
Trials
38. Jury Trial of Right
(a) Right Preserved
(b) Demand
(c) Same: Specification of Issues
(d) Waiver
(e) Admiralty and Maritime Claims
39. Trial by Jury or by the Court
(a) By Jury
(b) By the Court
(c) Advisory Jury and Trial by Consent
40. Assignment of Cases for Trial
41. Dismissal of Actions
(a) Voluntary Dismissal: Effect Thereof
(1) By Plaintiff; by Stipulation.
(2) By Order of Court
(b) Involuntary Dismissal: Effect Thereof
(c) Dismissal of Counterclaim, CrossClaim, or Third-Party Claim
(d) Costs of Previously-Dismissed Action
VII.
Judgment
54. Judgments; Costs
(a) Definition; Form
(b) Judgment Upon Multiple Claims or
Involving Multiple Parties
(c) Demand for Judgment
(d) Costs; Attorneys Fees
637
APPENDIX B
65. Injunctions
(a) Preliminary Injunction
(1) Notice
(2) Consolidation of Hearing With
Trial on Merits
(b) Temporary Restraining Order; Notice;
Hearing; Duration
(c) Security
(d) Form and Scope of Injunction or
Restraining Order
(e) Employer and Employee;
Interpleader; Constitutional Cases
65.1
66.
67.
68.
69.
638
APPENDIX B
I.
74. Abrogated
75. Abrogated
76. Abrogated
X. District Courts and Clerks
77. District Courts and Clerks
(a) District Courts Always Open
(b) Trials and Hearings; Orders
in Chambers
(c) Clerks Office and Orders by Clerk
(d) Notice of Orders or Judgments
78. Motion Day
79. Books and Records Kept by the Clerk
and Entries Therein
(a) Civil Docket
(b) Civil Judgments and Orders
(c) Indices; Calendars
(d) Other Books and Records
of the Clerk
80. Stenographer; Stenographic Report or
Transcript as Evidence
(a) Abrogated
(b) Abrogated
(c) Stenographic Report or Transcript
as Evidence
XI. General Provisions
81. Applicability in General
(a) To What Proceedings Applicable
(b) Scire Facias and Mandamus
(c) Removed Actions
(d) Abrogated
(e) Law Applicable
(f) References to Officer of the
United States
82. Jurisdiction and Venue Unaffected
83. Rules by District Courts; Judges
Directives
(a) Local Rules
(b) Procedures When There is No
Controlling Law
84. Forms
85. Title
86. Effective Date
(a) (Effective Date of Original Rules)
(b) Effective Date of Amendments
(c) Effective Date of Amendments
(d) Effective Date of Amendments
(e) Effective Date of Amendments
Rule 4. Summons.
(a) Form. The summons shall be signed by the
clerk, bear the seal of the court, identify the
court and the parties, be directed to the defendant, and state the name and address of the
plaintiffs attorney, or, if unrepresented, of the
plaintiff. It shall also state the time within
which the defendant must appear and defend,
and notify the defendant that failure to do so
will result in a judgment by default against the
defendant for the relief demanded in the complaint. The court may allow a summons to be
amended.
(b) Issuance. Upon or after filing the complaint, the plaintiff may present a summons to
the clerk for signature and seal. If the summons is in proper form, the clerk shall sign,
seal, and issue it to the plaintiff for service on
the defendant. A summons, or a copy of the
summons if addressed to multiple defendants, shall be issued for each defendant to
be served.
(c) Service with Complaint; by Whom Made.
(1) A summons shall be served together
with a copy of the complaint. The plaintiff is
responsible for service of a summons and
complaint within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of
the summons and complaint.
(2) Service may be effected by any person who is not a party and who is at least 18
years of age. At the request of the plaintiff,
however, the court may direct that service be
effected by a United States marshal, deputy
APPENDIX B
United States marshal, or other person or officer specially appointed by the court for that
purpose. Such an appointment must be made
when the plaintiff is authorized to proceed in
forma pauperis pursuant to 19 U.S.C. 1915 or
is authorized to proceed as a seaman under
18 U.S.C. 1916.
(d) Waiver of Service; Duty to Save Costs of
Service; Request to Waive.
(1) A defendant who waives service of a
summons does not thereby waive any objection to the venue or to the jurisdiction of the
court over the person of the defendant.
(2) An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice
of an action in the manner provided in this
paragraph has a duty to avoid unnecessary
costs of serving the summons. To avoid
costs, the plaintiff may notify such a defendant of the commencement of the action and
request that the defendant waive service of
a summons.
The notice and request
(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an office or managing or general agent (or other agent authorized by
appointment or law to receive service of
process) of a defendant subject to service under subdivision (h);
(B) shall be dispatched through firstclass mail or other reliable means;
(C) shall be accompanied by a copy of the
complaint and shall identify the court in
which it has been filed;
(D) shall inform the defendant, by means
of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to
comply with the request;
(E) shall set forth the date on which the
request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be
at least 30 days from the date on which the request is sent, or 60 days from that date if the
defendant is addressed outside any judicial
district of the United States; and
(G) shall provide the defendant with an
extra copy of the notice and request, as well
as a prepaid means of compliance in writing.
If a defendant located within the United
States fails to comply with a request for
waiver made by a plaintiff located within the
United States, the court shall impose the
costs subsequently incurred in effecting serv-
639
ice on the defendant unless good cause for
the failure be shown.
(3) A defendant that, before being served
with process, timely returns a waiver so requested is not required to serve an answer to
the complaint until 60 days after the date on
which the request for waiver of service was
sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.
(4) When the plaintiff files a waiver of
service with the court, the action shall proceed, except as provided in paragraph (3), as
if a summons and complaint had been served
at the time of filing the waiver, and no proof
of service shall be required.
(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waiver service of a
summons shall include the costs subsequently incurred in effecting service under
subdivision (e), (f) or (h), together with the
costs, including a reasonable attorneys fee,
of any motion required to collect the costs
of service.
(e) Service Upon Individuals Within a Judicial District of the United States. Unless otherwise provided by federal law, service upon
an individual from whom a waiver has not
been obtained and filed, other than an infant
or an incompetent person, may be effected in
any judicial district of the United States:
(1) pursuant to the law of the state in
which the district court is located, or in
which service is effected, for the service of a
summons upon the defendant in an action
brought in the courts of general jurisdiction
of the State; or
(2) by delivering a copy of the summons
and of the complaint to the individual personally or by leaving copies thereof at the individuals dwelling house or usual place of
abode with some person of suitable age and
discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment
or by law to receive service of process.
(f ) Service Upon Individuals in a Foreign
Country. Unless otherwise provided by federal law, service upon an individual from
whom a waiver has not been obtained and
filed, other than an infant or an incompetent
person, may be effected in a place not within
any judicial district of the United States:
(1) by an internationally agreed means
reasonably calculated to give notice, such as
those means authorized by the Hague Con-
640
APPENDIX B
641
APPENDIX B
642
APPENDIX B
pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper
relating to discovery required to be served
upon a party unless the court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure to appear except that
pleadings asserting new or additional claims
for relief against them shall be served upon
them in the manner provided for service of
summons in Rule 4.
In an action begun by seizure of property,
in which no person need be or is named as defendant, any service required to be made
prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at
the time of its seizure.
(b) Same: How Made. Whenever under these
rules service is required or permitted to be
made upon a party represented by an attorney,
the service shall be made upon the attorney
unless service upon the party is ordered by
the court. Service upon the attorney or upon a
party shall be made by delivering a copy to the
attorney or party or by mailing it to the attorney or party at the attorneys or partys lastknown address or, if no address is known, by
leaving it with the clerk of the court. Delivery
of a copy within this rule means: handing it to
the attorney or to the party; or leaving it at the
attorneys or partys office with a clerk or
other person in charge thereof; or, if there is no
one in charge, leaving it in a conspicuous place
therein; or, if the office is closed or the person
to be served has no office, leaving it at the persons dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein. Service by mail is
complete upon mailing.
(c) Same: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or
of its own initiative, may order that service of
the pleadings of the defendants and replies
thereto need not be made as between the defendants and that any cross-claim, counterclaim or matter constituting an avoidance or
affirmative defense contained therein shall be
deemed to be denied or avoided by all other
parties and that the filing of any such plead-
ing and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy
of every such order shall be served upon the
parties in such manner and form as the court
directs.
(d) Filing; Certificate of Service. All papers after the complaint required to be served upon
a party, together with a certificate of service,
shall be filed with the court within a reasonable time after service, but the court may on
motion of a party or on its own initiative order
that depositions upon oral examination and
interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of
the court or for use in the proceeding.
(e) Filing with the Court Defined. The filing
of papers with the court as required by these
Rules shall be made by filing them with the
clerk of the court, except that the judge may
permit the papers to be filed with the judge,
in which event the judge shall note thereon
the filing date and forthwith transmit them to
the office of the clerk. A court may by local
rule permit papers to be filed, signed or verified by electronic means that are consistent
with technical standards, if any, which establishes the Judicial Conference of the United
States. A paper filed by electronic means in
compliance with a local rule constitutes a
written paper for the purpose of applying
these Rules. The clerk shall not refuse to accept for filing any paper presented for that
purpose solely because it is not presented in
proper form as required by these Rules or by
any local rules or practices.
Rule 6. Time.
(a) Computation. In computing any period
of time prescribed or allowed by these
Rules, by the local rules of any district
court, by order of court, or by any applicable statute, the day of the act, event or default from which the designated period of
time begins to run shall not be included. The
last day of the period so computed shall be
included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday or, when the
act to be done is the filing of a paper in
court, a day on which weather or other conditions have made the office of the clerk of
the district court inaccessible, in which
event the period runs until the end of the
next day which is not one of the aforementioned days. When the period of time pre-
643
APPENDIX B
scribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation. As used in this Rule and in Rule 77(c),
legal holiday includes New Years Day,
Birthday of Martin Luther King, Jr., Washingtons Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day
and any other day appointed as a holiday by
the President or the Congress of the United
States or by the state in which the district
court is held.
(b) Enlargement. When by these Rules or by
a notice given thereunder or by order of
court an act is required or allowed to be
done at or within a specified time, the court
for cause shown may at any time in its discretion (1) with or without notice or notice
order the period enlarged if request therefor
is made before the expiration of the period
originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to
act was the result of excusable neglect; but it
may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b),
59(b), (d) and (e), 60(b) and 74(a), except to
the extent and under the conditions stated
in them.
(c) Unaffected by Expiration of Term. Rescinded Feb. 28, 1966, eff. July 1, 1966.
(d) For Motions - Affidavits. A written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall
be served not later than 5 days before the
time specified for the hearing, unless a different period is fixed by these Rules or by order
of the court. Such an order may for cause
shown be made on ex parte application.
When a motion is supported by affidavit, the
affidavit shall be served with the motion; and,
except as otherwise provided in Rule 59(c),
opposing affidavits may be served not later
than 1 day before the hearing, unless the
court permits them to be served at some
other time.
(e) Additional Time After Service by Mail.
Whenever a party has the right or is required
to do some act or take some proceedings
within a prescribed period after the service of
a notice or other paper upon the party and
the notice or paper is served upon the party
by mail, 3 days shall be added to the prescribed period.
III.
644
APPENDIX B
APPENDIX B
(h) Admiralty and Maritime Claims. A pleading or count setting forth a claim for relief
within the admiralty and maritime jurisdiction that is also within the jurisdiction of the
district court on some other ground may contain a statement identifying the claim as an
admiralty or maritime claim for the purposes
of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime
Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim
for those purposes whether so identified or
not. The amendment of a pleading to add or
withdraw an identifying statement is governed by the principles of Rule 15. A case that
includes an admiralty or maritime claim
within this subdivision is an admiralty case
within 28 U.S.C. 1292(a)(3).
645
by an attorney, shall be signed by the party.
Each paper shall state the signers address
and telephone number, if any. Except when
otherwise specifically provided by rule or
statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper
shall be stricken unless omission of the signature is corrected promptly after being
called to the attention of the attorney or
party.
(b) Representations to Court. By presenting
to the court (whether by signing, filing, submitting or later advocating) a pleading, written motion or other paper, an attorney or unrepresented party is certifying that to the
best of the persons knowledge, information
and belief, formed after an inquiry reasonable
under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in
the cost of litigation;
(2) the claims, defenses and other legal
contentions therein are warranted by existing
law or by a non-frivolous argument for the extension, modification or reversal of existing
law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonably based on a lack
of information or belief.
(c) Sanctions. If, after notice and a reasonable
opportunity to respond, the court determines
that subdivision (b) has been violated, the
court may, subject to the conditions stated
below, impose an appropriate sanction upon
the attorneys, law firms or parties that have
violated subdivision (b) or are responsible
for the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under
this Rule shall be made separately from other
motions or requests and shall describe the specific conduct alleged to violate subdivision (b).
It shall be served as provided in Rule 5, but shall
not be filed with or presented to the court unless, within 21 days after service of the motion
(or such other period as the court may prescribe), the challenged paper, claim, defense,
contention, allegation or denial is not withdrawn or appropriately corrected. If warranted,
646
APPENDIX B
APPENDIX B
647
may join with it any other motions herein provided for and then available to the party. If a
party makes a motion under this Rule but
omits therefrom any defense or objection
then available to the party which this Rule
permits to be raised by motion, the party
shall not thereafter make a motion based on
the defense or objection so omitted, except a
motion as provided in subdivision (h)(2)
hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain
Defenses.
(1) A defense of lack of jurisdiction over
the person, improper venue, insufficiency of
process or insufficiency of service of process
is waived (A) if omitted from a motion in the
circumstances described in subdivision (g),
or (B) if it is neither made by motion under
this Rule nor included in a responsive pleading or an amendment thereof permitted by
Rule 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim
upon which relief can be granted, a defense of
failure to join a party indispensable under
Rule 19, and an objection of failure to state a
legal defense to a claim may be made in any
pleading permitted or ordered under Rule
7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of
the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court
shall dismiss the action.
648
APPENDIX B
APPENDIX B
claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff,
may bring in a third-party defendant who may
be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of
remedy over, contribution or otherwise on
account of the same transaction, occurrence
or series of transactions or occurrences. In
such a case, the third-party plaintiff may also
demand judgment against the third-party defendant in favor of the plaintiff, in which event
the third-party defendant shall make any defenses to the claim of the plaintiff as well as to
that of the third-party plaintiff in the manner
provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it
against the third-party defendant as well as
the third-party plaintiff.
649
that the admission of such evidence would
prejudice the party in maintaining the partys
action or defense upon the merits. The court
may grant a continuance to enable the objecting party to meet such evidence.
(c) Relation Back of Amendments. An
amendment of a pleading relates back to the
date of the original pleading when:
(1) relation back is permitted by the law
that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the
amended pleading arose out of the conduct,
transaction or occurrence set forth or attempted to be set forth in the original pleading; or
(3) the amendment changes the party or
the naming of the party against whom a claim
is asserted if the foregoing provision (2) is
satisfied and, within the period provided by
Rule 4(m) for service of the summons and
complaint, the party to be brought in by
amendment (A) has received such notice of
the institution of the action that the party will
not be prejudiced in maintaining a defense on
the merits, and (B) knew or should have
known that, but for a mistake concerning the
identity of the proper party, the action would
have been brought against the party.
The delivery or mailing of process to the
United States Attorney or United States Attorneys designee or the Attorney General of
the United States, or an agency or officer who
would have been a proper defendant if
named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with
respect to the United States or any agency or
officer thereof to be brought into the action
as a defendant.
(d) Supplemental Pleadings. Upon motion of
a party the court may, upon reasonable notice
and upon such terms as are just, permit the
party to serve a supplemental pleading setting forth transactions or occurrences or
events which have happened since the date of
the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a
claim for relief or defense. If the court deems
it advisable that the adverse party plead to
the supplemental pleading, it shall so order,
specifying the time therefor.
650
APPENDIX B
the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such
purposes as:
(1) expediting the disposition of the
action;
(2) establishing early and continuing
control so that the case will not be protracted
because of lack of management;
(3) discouraging
wasteful
pretrial
activities;
(4) improving the quality of the trial
through more thorough preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions exempted by district court
rule as inappropriate, the district judge, or a
magistrate judge when authorized by district
court rule, shall, after receiving the report
from the parties under Rule 26(f) or after consulting with the attorneys for the parties and
any unrepresented parties by a scheduling
conference, telephone, mail or other suitable
means, enter a scheduling order that limits
the time:
(1) to join other parties and to amend the
pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order also may include:
(4) modification of the time for disclosures under Rules 26(a) and 26(e)(1) and of
the extent of discovery to be permitted;
(5) the date or dates for conferences before trial, a final pretrial conference, and
trial; and
(6) any other matters appropriate in the
circumstances of the case.
The order shall issue as soon as practicable but in any event within 90 days after the
appearance of a defendant and within 120
days after the complaint has been served on a
defendant. A schedule shall not be modified
except upon a showing of good cause and by
leave of the district judge or, when authorized
by local rule, by a magistrate judge.
(c) Subjects for Consideration at Pretrial
Conferences. At any conference under this
Rule consideration may be given, and the court
may take appropriate action with respect to:
(1) the formulation and simplification of
the issues, including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid
APPENDIX B
(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the
time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including
a program for facilitating the admission of evidence. The conference shall be attended by
at least one of the attorneys who will conduct
the trial for each of the parties and by any unrepresented parties.
(e) Pretrial Orders. After any conference held
pursuant to this Rule, an order shall be entered
reciting the action taken. This order shall control the subsequent course of the action unless
modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
(f ) Sanctions. If a party or partys attorney
fails to obey a scheduling or pretrial order, or
if no appearance is made on behalf of a party
at a scheduling or pretrial conference, or if a
party or partys attorney is substantially unprepared to participate in the conference, or if
a party or partys attorney fails to participate
in good faith, the judge, upon motion or the
judges own initiative, may make such orders
with regard thereto as are just, and among others any of the orders provided in Rule
37(b)(2)(B), (C), (D). In lieu of or in addition to
any other sanction, the judge shall require the
party or the attorney representing the party or
both to pay the reasonable expenses incurred
because of any noncompliance with this Rule,
including attorneys fees, unless the judge
finds that the noncompliance was substantially justified or that other circumstances
make an award of expenses unjust.
IV.
Parties.
651
for ratification of commencement of the action by, or joinder or substitution of, the real
party in interest; and such ratification, joinder or substitution shall have the same effect
as if the action had been commenced in the
name of the real party in interest.
(b) Capacity to Sue or Be Sued. The capacity
of an individual, other than one acting in a
representative capacity, to sue or be sued
shall be determined by the law of the individuals domicile. The capacity of a corporation to sue or be sued shall be determined by
the law under which it was organized. In all
other cases capacity to sue or be sued shall
be determined by the law of the state in
which the district court is held, except (1)
that a partnership or other unincorporated
association, which has no such capacity by
the law of such state, may sue or be sued in
its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the
United States, and (2) that the capacity of a
receiver appointed by a court of the United
States to sue or be sued in a court of the
United States is governed by Title 28, U.S.C.
754 and 959(a).
(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a
representative, such as a general guardian,
committee, conservator or other like fiduciary, the representative may sue or defend on
behalf of the infant or incompetent person.
An infant or incompetent person who does
not have a duly appointed representative
may sue by a next friend or by a guardian ad
litem. The court shall appoint a guardian ad
litem for an infant or incompetent person not
otherwise represented in an action or shall
make such other order as it deems proper for
the protection of the infant or incompetent
person.
652
APPENDIX B
only in accordance with the relative substantive rights of the parties. In particular, a
plaintiff may state a claim for money and a
claim to have set aside a conveyance fraudulent as to that plaintiff, without first having
obtained a judgment establishing the claim
for money.
APPENDIX B
653
(3) the court finds that the questions of
law or fact common to the members of the
class predominate over any questions affecting only individual members, and that a class
action is superior to other available methods
for the fair and efficient adjudication of the
controversy. The matters pertinent to the
findings include: (A) the interest of members
of the class in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced
by or against members of the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
(c) Determination by Order Whether Class
Action to Be Maintained; Notice; Judgment;
Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order
whether it is to be so maintained. An order
under this subdivision may be conditional,
and may be altered or amended before the decision on the merits.
(2) In any class action maintained under
subdivision (b)(3), the court shall direct to
the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be
identified through reasonable effort. The notice shall advise each member that (A) the
court will exclude the member from the class
if the member so requests by a specified date;
(B) the judgment, whether favorable or not,
will include all members who do not request
exclusion; and (C) any member who does not
request exclusion may, if the member desires,
enter an appearance through his counsel.
(3) The judgment in an action maintained
as a class action under subdivision (b)(1) or
(b) (2), whether or not favorable to the class,
shall include and describe those whom the
court finds to be members of the class. The
judgment in an action maintained as a class action under subdivision (b)(3), whether or not
favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and
who have not requested exclusion, and whom
the court finds to be members of the class.
(4) When appropriate (A) an action may
be brought or maintained as a class action
with respect to particular issues, or (B) a
class may be divided into subclasses and
654
APPENDIX B
each subclass treated as a class, and the provisions of this Rule shall then be construed
and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which this Rule applies, the
court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of
evidence or argument; (2) requiring, for the
protection of the members of the class or otherwise for the fair conduct of the action, that
notice be given in such manner as the court
may direct to some or all of the members of
any step in the action, or of the proposed extent of the judgment, or of the opportunity of
members to signify whether they consider the
representation fair and adequate, to intervene
and present claims or defenses, or otherwise
to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be
amended to eliminate therefrom allegations
as to representation of absent persons, and
that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under
Rule 16, and may be altered or amended as
may be desirable from time to time.
(e) Dismissal or Compromise. A class action
shall not be dismissed or compromised without the approval of the court, and notice of
the proposed dismissal or compromise shall
be given to all members of the class in such
manner as the court directs.
authority and, if necessary, from the shareholders or members, and the reasons for the
plaintiffs failure to obtain the action or for
not making the effort. The derivative action
may not be maintained if it appears that the
plaintiff does not fairly and adequately represent the interests of the shareholders or
members similarly situated in enforcing the
right of the corporation or association. The
action shall not be dismissed or compromised without the approval of the court, and
notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.
655
APPENDIX B
V.
656
APPENDIX B
(B) a copy of, or a description by category and location of, all documents, data
compilations, and tangible things in the possession, custody or control of the party that
are relevant to disputed facts alleged with
particularity in the pleadings;
(C) a computation of any category of
damages claimed by the disclosing party,
making available for inspection and copying
as under Rule 34 the documents or other evidentiary material, not privileged or protected
from disclosure, on which such computation
is based, including materials bearing on the
nature and extent of injuries suffered; and
(D) for inspection and copying as under
Rule 34 any insurance agreement under
which any person carrying on an insurance
business may be liable to satisfy part or all of
a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
Unless otherwise stipulated or directed
by the court, these disclosures shall be made
at or within 10 days after the meeting of the
parties under subdivision (f). A party shall
make its initial disclosures based on the information then reasonably available to it and
is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the
sufficiency of another partys disclosures or
because another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present
evidence under Rules 702, 703 or 705 of the
Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with
respect to a witness who is retained or specially employed to provide expert testimony
in the case or whose duties as an employee of
the party regularly involve giving expert testimony, be accompanied by a written report
prepared and signed by the witness. The report shall contain a complete statement of all
opinions to be expressed and the basis and
reasons therefor; the data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all
publications authored by the witness within
the preceding ten years; the compensation to
APPENDIX B
657
ter reasonable notice or pursuant to a motion
under subdivision (c).
(3) Trial Preparation: Materials. Subject to
the provisions of subdivision (b)(4) of this
Rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule
and prepared in anticipation of litigation or
for trial by or for another party or by or for
that other partys representative (including
the other partys attorney, consultant, surety,
indemnitor, insurer or agent) only upon
showing that the party seeking discovery has
substantial need of the materials in the preparation of the partys case and that the party is
unable without undue hardship to obtain the
substantial equivalent of the materials by
other means. In ordering discovery of such
materials when the required showing has
been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required
showing a statement concerning the action or
its subject matter previously made by that
party. Upon request, a person not a party may
obtain without the required showing a statement concerning the action or its subject
matter previously made by that person. If the
request is refused, the person may move for a
court order. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is
(A) a written statement signed or otherwise
adopted or approved by the person making it,
or (B) a stenographic, mechanical, electrical
or other recording, or a transcription thereof,
which is a substantially verbatim recital of an
oral statement by the person making it and
contemporaneously recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who
has been identified as an expert whose opinions may be presented at trial. If a report from
the expert is required under subdivision
(a)(2)(B), the deposition shall not be conducted until after the report is provided.
(B) A party may, through interrogatories
or by deposition, discover facts known or
opinions held by an expert who has been retained or specially employed by another
party in anticipation of litigation or preparation for trial and who is not expected to be
called as a witness at trial, only as provided in
658
APPENDIX B
659
APPENDIX B
660
APPENDIX B
and the court may make orders of the character provided for by Rules 34 and 35. For the
purpose of applying these Rules to depositions for perpetuating testimony, each reference therein to the court in which the action
is pending, shall be deemed to refer to the
court in which the petition for such deposition was filed.
(4) Use of Deposition. If a deposition to
perpetuate testimony is taken under these
Rules or if, although not so taken, it would be
admissible in evidence in the courts of the
state in which it is taken, it may be used in any
action involving the same subject matter subsequently brought in a United States district
court, in accordance with the provisions of
Rule 32(a).
(b) Pending Appeal. If an appeal has been
taken from a judgment of a district court or
before the taking of an appeal if the time
therefor has not expired, the district court in
which the judgment was rendered may allow
the taking of the depositions of witnesses to
perpetuate their testimony for use in the
event of further proceedings in the district
court. In such case the party who desires to
perpetuate the testimony may make a motion
in the district court for leave to take the depositions, upon the same notice and service
thereof as if the action was pending in the district court. The motion shall show (1) the
names and addresses of persons to be examined and the substance of the testimony
which the party expects to elicit from each;
(2) the reasons for perpetuating their testimony. If the court finds that the perpetuation
of the testimony is proper to avoid a failure or
delay of justice, it may make an order allowing the depositions to be taken and may make
orders of the character provided for by Rules
34 and 35, and thereupon the depositions
may be taken and used in the same manner
and under the same conditions as are prescribed in these Rules for depositions taken
in actions pending in the district court.
(c) Perpetuation by Action. This Rule does
not limit the power of a court to entertain an
action to perpetuate testimony.
661
APPENDIX B
662
APPENDIX B
APPENDIX B
663
of the deposition. Unless otherwise ordered
by the court, the officer shall securely seal
the deposition in an envelope or package indorsed with the title of the action and
marked Deposition of [here insert name of
witness] and shall promptly file it with the
court in which the action is pending or send
it to the attorney who arranged for the transcript or recording, who shall store it under
conditions that will protect it against loss,
destruction, tampering or deterioration. Documents and things produced for inspection
during the examination of the witness, shall,
upon the request of a party, be marked for
identification and annexed to the deposition
and may be inspected and copied by any
party, except that if the person producing the
materials desires to retain them the person
may (A) offer copies to be marked for identification and annexed to the deposition and to
serve thereafter as originals if the person affords to all parties fair opportunity to verify
the copies by comparison with the originals,
or (B) offer the originals to be marked for
identification, after giving to each party an
opportunity to inspect and copy them, in
which event the materials may then be used
in the same manner as if annexed to the deposition. Any party may move for an order
that the original be annexed to and returned
with the deposition to the court, pending final disposition of the case.
(2) Unless otherwise ordered by the
court or agreed by the parties, the officer shall
retain stenographic notes of any deposition
taken stenographically or a copy of the
recording of any deposition taken by another
method. Upon payment of reasonable charges
therefor, the officer shall furnish a copy of the
transcript or other recording of the deposition to any party or to the deponent.
(3) The party taking the deposition shall
give prompt notice of its filing to all other
parties.
( g) Failure to Attend or to Serve Subpoena;
Expenses.
(1) If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith and another party attends in
person or by attorney pursuant to the notice,
the court may order the party giving the notice to pay to such other party the reasonable
expenses incurred by that party and that
partys attorney in attending, including reasonable attorneys fees.
(2) If the party giving the notice of the
taking of a deposition of a witness fails to
664
APPENDIX B
APPENDIX B
665
also provide the court with a transcript of the
portions so offered. On request of any party in
a case tried before a jury, deposition testimony
offered other than for impeachment purposes
shall be presented in non-stenographic form, if
available, unless the court for good cause orders otherwise.
(d) Effect of Errors and Irregularities in
Depositions.
(1) As to Notice. All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly
served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the
taking of the deposition begins or as soon
thereafter as the disqualification becomes
known or could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a
witness or to the competency, relevancy or
materiality of testimony are not waived by
failure to make them before or during the taking of the deposition, unless the ground of the
objection is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at
the oral examination in the manner of taking
the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of parties, and errors of any kind
which might be obviated, removed or cured if
promptly presented, are waived unless seasonable objection thereto is made to the taking of the deposition.
(C) Objections to the form of written
questions submitted under Rule 31 are
waived unless served in writing upon the
party propounded them within the time allowed for serving the succeeding cross or
other questions and within 5 days after service of the last questions authorized.
(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in
which the testimony is transcribed or the
deposition is prepared, signed, certified,
sealed, endorsed, transmitted, filed or otherwise dealt with by the officer under Rules 30
and 31 are waived unless a motion to suppress the deposition or some part thereof is
made with reasonable promptness after such
defect is, or with due diligence might have
been, ascertained.
666
APPENDIX B
667
APPENDIX B
668
APPENDIX B
matter is admitted unless, within 30 days after service of the request, or within such
shorter or longer time as the court may allow
or as the parties may agree to in writing, subject to Rule 29, the party to whom the request
is directed serves upon the party requesting
the admission a written answer or objection
addressed to the matter, signed by the party
or by the partys attorney. If objection is
made, the reasons therefor shall be stated.
The answer shall specifically deny the matter
or set forth in detail the reasons why the answering party cannot truthfully admit or deny
the matter. A denial shall fairly meet the substance of the requested admission, and when
good faith requires that a party qualify an answer or deny only a part of the matter of
which an admission is requested, the party
shall specify so much of it as is true and qualify or deny the remainder. An answering party
may not give lack of information or knowledge as a reason for failure to admit or deny
unless the party states that the party has
made reasonable inquiry and that the information known or readily obtainable by the
party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested
presents a genuine issue for trial may not, on
that ground alone, object to the request; the
party may, subject to the provisions of Rule
37(c), deny the matter or set forth reasons
why the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency
of the answers of objections. Unless the
court determines that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does
not comply with the requirements of this
Rule, it may order either that the matter is admitted or that an amended answer be served.
The court may, in lieu of these orders, determine that final disposition of the request be
made at a pretrial conference or at a designated time prior to trial. The provisions of
Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion.
(b) Effect of Admission. Any matter admitted
under this Rule is conclusively established
unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 15 governing
amendment of a pretrial order, the court may
permit withdrawal or amendment when the
presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice
the party in maintaining the action or defense
on the merits. Any admission made by a party
under this Rule is for the purpose of the pending action only and is not an admission for
any other purpose nor may it be used against
the party in any other proceeding.
APPENDIX B
669
action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding
which the order was made or any other designated facts shall be taken to be established for
the purposes of the action in accordance with
the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that
party from introducing designated matters in
evidence;
(C) An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders
or in addition thereto, an order treating as a
contempt of court the failure to obey any orders except an order to submit to a physical
or mental examination;
(E) Where a party has failed to comply
with an order under Rule 35(a) requiring that
party to produce another for examination,
such orders as are listed in paragraphs (A),
(B) and (C) of this subdivision, unless the
party failing to comply shows that party is unable to produce such person for examination.
In lieu of any of the foregoing orders or in
addition thereto, the court shall require the
party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses, including attorneys fees,
caused by the failure, unless the court finds
that the failure was substantially justified or
that other circumstances make an award of
expenses unjust.
(c) Failure to Disclose; False or Misleading
Disclosure; Refusal to Admit.
(1) A party that without substantial justification fails to disclose information required
by Rule 26(a) or 26(e)(1) shall not, unless
such failure is harmless, be permitted to use
as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording
an opportunity to be heard, may impose
other appropriate sanctions. In addition to
requiring payment of reasonable expenses,
including attorneys fees, caused by the failure, these sanctions may include any of the
actions authorized under subparagraphs (A),
670
APPENDIX B
VI.
The failure to act described in this subdivision may not be excused on the ground that the
discovery sought is objectionable unless the
party failing to act has a pending motion for a
protective order as provided by Rule 26(c).
(e) Subpoena of Person in Foreign Country.
Abrogated by amendment Apr. 29, 1980, eff.
Aug. 1, 1980.
(f) Expenses Against United States. Repealed
by P.L. 69-481, eff. Oct. 1, 1981.
(g) Failure to Participate in the Framing of
a Discovery Plan. If a party or a partys attorney fails to participate in good faith in
the development and submission of a proposed discovery plan as required by Rule
26(f), the court may, after opportunity for
hearing, require such party or attorney to
pay to any other party the reasonable expenses, including attorneys fees, caused by
the failure.
Trials.
APPENDIX B
671
answer or of a motion for summary judgment,
whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an
adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court
of the United States or of any state an action
based on or including the same claim.
(2) By Order of the Court. Except as provided in paragraph (1) of this subdivision of
this Rule, an action shall not be dismissed at
the plaintiffs instance save upon order of the
court and upon such terms and conditions as
the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the service upon the defendant of the plaintiffs motion
to dismiss, the action shall not be dismissed
against the defendants objection unless the
counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under
this paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof.
For failure of the plaintiff to prosecute or to
comply with these Rules or any order of
court, a defendant may move for dismissal of
an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under
this subdivision and any dismissal not provided for in this Rule, other than a dismissal
for lack of jurisdiction, for improper venue or
for failure to join a party under Rule 19, operates as an adjudication upon the merits.
(c) Dismissal of Counterclaim, Cross-Claim or
Third-Party Claim. The provisions of this Rule
apply to the dismissal of any counterclaim,
cross-claim or third-party claim. A voluntary
dismissal by the claimant alone pursuant to
paragraph (1) of subdivision (a) of this Rule
shall be made before a responsive pleading is
served or, if there is none, before the introduction of evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a
plaintiff who has once dismissed an action in
any court commences an action based upon
or including the same claim against the same
defendant, the court may make such order for
the payment of costs of the action previously
dismissed as it may deem proper and may
stay the proceedings in the action until the
plaintiff has complied with the order.
672
APPENDIX B
APPENDIX B
673
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which
the attorney is authorized to practice.
(b) Service.
(1) A subpoena may be served by any
person who is not a party and is not less than
18 years of age. Service of a subpoena upon a
person named therein shall be made by delivering a copy thereof to such person and, if
the persons attendance is commanded, by
tendering to that person the fees for one
days attendance and the mileage allowed by
law. When the subpoena is issued on behalf
of the United States or an officer or agency
thereof, fees and mileage need not be tendered. Prior notice of any commenced production of documents and things or inspection of premises before trial shall be served
on each party in the manner prescribed by
Rule 5(b).
(2) Subject to the provisions of clause
(ii) of subparagraph (c)(3)(a) of this Rule, a
subpoena may be served at any place within
the district of the court by which it is issued,
or at any place without the district that is
within 100 miles of the place of the deposition, hearing, trial, production or inspection
specified in the subpoena or at any place
within the State where a State statute or rule
of court permits service of a subpoena issued by a State court of general jurisdiction
sitting in the place of the deposition, hearing,
trial, production or inspection specified in
the subpoena. When a statute of the United
States provides therefor, the court upon
proper application and cause shown may authorize the service of a subpoena at any
other place. A subpoena directed to a witness in a foreign country who is a national or
resident of the United States shall issue under the circumstances and in the manner and
be served as provided in Title 28, U.S.C.
1783.
(3) Proof of service when necessary shall
be made by filing with the clerk of the court
by which the subpoena is issued a statement
of the date and manner of service and of the
names of the persons served, certified by the
person who made the service. A subpoena
may also command the person to whom it is
directed to produce the books, papers, documents or tangible things designated therein;
674
APPENDIX B
regularly transacts business in person, except that, subject to the provisions of clause
(c)(3)(B)(iii) of this Rule, such a person may
in order to attend trial be commanded to
travel from any such place within the State in
which the trial is held; or
(iii) requires disclosure of privileged
or other protected matter and no exception
or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena:
(i) requires disclosure of a trade secret
or other confidential research, development
or commercial information, or
(ii) requires disclosure of an unretained experts opinion or information not describing specific events or occurrences in dispute and resulting from the experts study
made not at the request of any party, or
(iii) requires a person who is not a party
or an officer of a party to incur substantial expense to travel more than 100 miles to attend
trial, the court may, to protect a person subject
to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf
the subpoena is issued shows a substantial
need for the testimony or material that cannot
be otherwise met without undue hardship and
assures that the person to whom the subpoena
is addressed will be reasonably compensated,
the court may order appearance or production
only upon specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to
produce documents shall produce them as
they are kept in the usual course of business
or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made
expressly and shall be supported by a description of the nature of the documents,
communications or things not produced that
is sufficient to enable the demanding party to
contest the claim.
(e) Contempt. Failure by any person without
adequate excuse to obey a subpoena served
upon that person may be deemed a contempt
of the court from which the subpoena issued.
An adequate cause for failure to obey exists
when a subpoena purports to require a nonparty to attend or produce at a place not
within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
APPENDIX B
675
quiring the written findings thereon as it
deems most appropriate. The court shall give
to the jury such explanation and instruction
concerning the matter thus submitted as may
be necessary to enable the jury to make its
findings upon each issue. If in so doing the
court omits any issue of fact raised by the
pleadings or by the evidence, each party
waives the right to a trial by jury of the issue
so omitted unless before the jury retires the
party demands its submission to the jury. As
to an issue omitted without such demand, the
court may make a finding; or, if it fails to do
so, it shall be deemed to have made a finding
in accord with the judgment on the special
verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate
forms for a general verdict, written interrogatories upon one or more issues of fact
the decision of which is necessary to a verdict. The court shall give such explanation or
instruction as may be necessary to enable
the jury both to make answers to the interrogatories and to render a general verdict,
and the court shall direct the jury both to
make written answers and to render a general verdict. When the general verdict and
the answers are harmonious, the appropriate
judgment upon the verdict and answers shall
be entered pursuant to Rule 58. When the answers are consistent with each other but one
or more is inconsistent with the general verdict, judgment may be entered pursuant to
Rule 58 in accordance with the answers,
notwithstanding the general verdict, or the
court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is
likewise inconsistent with the general verdict, judgment shall not be entered, but the
court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
676
APPENDIX B
APPENDIX B
677
lowed by the court does not pay it after notice
and within the time prescribed by the court,
the master is entitled to a writ of execution
against the delinquent party.
(b) Reference. A reference to a master shall
be the exception and not the rule. In actions
to be tried by a jury, a reference shall be made
only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of
damages, a reference shall be made only upon
a showing that some exceptional condition
requires it. Upon the consent of the parties, a
magistrate judge may be designated to serve
as a special master without regard to the provisions of this subdivision.
(c) Powers. The order of reference to the master may specify or limit the masters powers
and may direct the master to report only upon
particular issues or to do or perform particular
acts or to receive and report evidence only and
may fix the time and place for beginning and
closing the hearings and for the filing of the
masters report. Subject to the specifications
and limitations stated in the order, the master
has and shall exercise the power to regulate all
proceedings in every hearing before the master
and to do all acts and take all measures necessary or proper for the efficient performance of
the masters duties under the order. The master may require the production before the master of evidence upon all matters embraced in
the reference, including the production of all
books, papers, vouchers, documents and writings applicable thereto. The master may rule
upon the admissibility of evidence unless otherwise directed by the order of reference and
has the authority to put witnesses on oath and
may examine them and may call the parties to
the action and examine them upon oath. When
a party so requests, the master shall make a
record of the evidence offered and excluded in
the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury.
(d) Proceedings.
(1) Meetings. When a reference is made, the
clerk shall forthwith furnish the master with a
copy of the order of reference. Upon receipt
thereof unless the order of reference otherwise
provides, the master shall forthwith set a time
and place for the first meeting of the parties or
their attorneys to be held within 20 days after
the date of the order of reference and shall notify the parties or their attorneys. It is the duty
of the master to proceed with all reasonable
678
APPENDIX B
679
APPENDIX B
680
APPENDIX B
APPENDIX B
681
tions at law in the courts of the United States;
and (2) in an action tried without a jury, for
any of the reasons for which rehearings have
heretofore been granted in suits in equity in
the courts of the United States. On a motion
for a new trial in an action tried without a jury,
the court may open the judgment if one has
been entered, take additional testimony,
amend findings of fact and conclusions of law
or make new findings and conclusions, and direct the entry of a new judgment.
(b) Time for Motion. A motion for new trial
shall be filed no later than 10 days after entry
of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits,
they shall be filed with the motion. The opposing party has 10 days after service to file
opposing affidavits, but that period may be
extended for up to 20 days, either by the
court for good cause shown or by the parties
written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. No later than 10
days after entry of judgment the court, on its
own, may order a new trial for any reason that
would justify granting one on a partys motion. After giving the parties notice and an opportunity to be heard, the court may grant a
timely motion for a new trial for a reason not
stated in the motion. When granting a new
trial on its own initiative or for a reason not
stated in a motion, the court shall specify the
grounds in its order.
(e) Motion to Alter or Amend a Judgment.
Any motion to alter or amend a judgment
shall be filed no later than 10 days after entry
of the judgment.
682
APPENDIX B
order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct
of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released
or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The
motion shall be made within a reasonable
time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order
or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its
operation. This Rule does not limit the power
of a court to entertain an independent action
to relieve a party from a judgment, order or
proceeding, or to grant relief to a defendant
not actually personally notified as provided
in Title 28, U.S.C., 1655, or to set aside a
judgment for fraud upon the court. Writs of
coram nobis, coram vobis, audita querela
and bills of review and bills in the nature of a
bill of review, are abolished and the procedure for obtaining any relief from a judgment
shall be by motion as prescribed in these
Rules or by any independent action.
683
APPENDIX B
684
APPENDIX B
ing to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of Title 28, U.S.C., 2361, relating to preliminary
injunctions in actions of interpleader or in the
nature of interpleader; or Title 28, U.S.C.,
2284, relating to actions required by Act of
Congress to be heard and determined by a
district court of three judges.
685
APPENDIX B
686
APPENDIX B
person is liable to the same process for enforcing obedience to the order as if a party.
APPENDIX B
cated, once a week for not less than three successive weeks. Prior to the last publication, a
copy of the notice shall also be mailed to a defendant who cannot be personally served as
provided in this Rule but whose place of residence is then known. Unknown owners may be
served by publication in like manner by a notice addressed to Unknown Owners.
Service by publication is complete upon
the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiffs attorney, to which shall
be attached a printed copy of the published
notice with the name and dates of the newspaper marked thereon.
(4) Return; Amendment. Proof of service of
the notice shall be made and amendment of
the notice or proof of its service allowed in
the manner provided for the return and
amendment of the summons under Rule 4.
(e) Appearance or Answer. If a defendant
has no objection or defense to the taking of
the defendants property, the defendant may
serve a notice of appearance designating the
property in which the defendant claims to be
interested. Thereafter the defendant shall receive notice of all proceedings affecting it. If
a defendant has any objection or defense to
the taking of the property, the defendant
shall serve an answer within 20 days after
the service of notice upon the defendant.
The answer shall identify the property in
which the defendant claims to have an interest, state the nature and extent of the interest claimed, and state all of the defendants
objections and defenses to the taking of the
property. A defendant waives all defenses
and objections not so presented, but at the
trial of the issue of just compensation,
whether or not the defendant has previously
appeared or answered, the defendant may
present evidence as to the amount of the
compensation to be paid for the property,
and the defendant may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed.
(f) Amendment of Pleadings. Without leave
of court, the plaintiff may amend the complaint at any time before the trial of the issue
of compensation and as many times as desired, but no amendment shall be made which
will result in a dismissal forbidden by subdivision (i) of this Rule. The plaintiff need not
serve a copy of an amendment, but shall
serve notice of the filing, as provided in Rule
687
5(b), upon any party affected thereby who
has appeared and, in the manner provided in
subdivision (d) of this Rule, upon any party
affected thereby who has not appeared. The
plaintiff shall furnish to the clerk of the court
for the use of the defendants at least one copy
of each amendment, and he shall furnish additional copies of the request of the clerk or
of a defendant. Within the time allowed by
subdivision (e) of this Rule a defendant may
serve an answer to the amended pleading, in
the form and manner and with the same effect
as there provided.
(g) Substitution of Parties. If a defendant
dies or becomes incompetent or transfers an
interest after the defendants joinder, the
court may order substitution of the proper
party upon motion and notice of hearing. If
the motion and notice of hearing are to be
served upon a person not already a party,
service shall be made as provided in subdivision (d)(3) of this Rule.
(h) Trial. If the action involves the exercise
of the power of eminent domain under the
law of the United States, any tribunal specially constituted by an Act of Congress
governing the case for the trial of the issue
of just compensation shall be the tribunal
for the determination of that issue; but if
there is no such specially constituted tribunal any party may have a trial by jury of the
issue of just compensation by filing a demand therefor within the time allowed for
answer or within such further time as the
court may fix, unless the court in its discretion orders that, because of the character,
location or quantity of the property to be
condemned, or for other reasons in the interest of justice, the issue of compensation
shall be determined by a commission of
three persons appointed by it.
In the event that a commission is appointed, the court may direct that not more
than two additional persons serve as alternate commissioners to hear the case and replace commissioners who, prior to the time
when a decision is filed, are found by the
court to be unable or disqualified to perform
their duties. An alternate who does not replace a regular commissioner shall be discharged after the commission renders its final
decision. Before appointing the members of
the commission and alternates the court shall
advise the parties of the identity and qualifications of each prospective commissioner
and alternate and may permit the parties to
688
APPENDIX B
of the power of eminent domain; and, although not so required, may make a deposit
when permitted by statute. In such cases the
court and attorneys shall expedite the proceedings for the distribution of the money so
deposited and for the ascertainment and
payment of just compensation. If the compensation finally awarded to any defendant
exceeds the amount which has been paid to
the defendant or distribution of the deposit,
the court shall enter judgment against the
plaintiff and in favor of that defendant for the
deficiency. If the compensation finally
awarded to any defendant is less than the
amount which has been paid to that defendant, the court shall enter judgment against
that defendant and in favor of the plaintiff for
the overpayment.
( k) Condemnation Under a States Power of
Eminent Domain. The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under
the law of a state, provided that if the state
law makes provision for trial of any issue by
jury, or for trial of the issue of compensation
by jury or commission or both, that provision
shall be followed.
IX.
Magistrates.
689
APPENDIX B
690
APPENDIX B
on all days except Saturdays, Sundays and legal holidays, but a district court may provide
by local rule or order that its clerks office shall
be open for specified hours on Saturdays or
particular legal holidays other than New Years
Day, Birthday of Martin Luther King, Jr., Washingtons Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans
Day, Thanksgiving Day and Christmas Day. All
motions and applications in the clerks office
for issuing mesne process, for issuing final
process to enforce and execute judgments, for
entering defaults or judgments by default, and
for other proceedings which do not require allowance or order of the court are grantable of
course by the clerk; but the clerks action may
be suspended or altered or rescinded by the
court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an order of judgment
the clerk shall serve a notice of the entry by
mail in the manner provided for in Rule 5 upon
each party who is not in default for failure to
appear, and shall make a note in the docket of
the mailing. Any party may in addition serve a
notice of such entry in the manner provided in
Rule 5 for the service of papers. Lack of notice
of the entry by the clerk does not affect the
time to appeal or relieve or authorize the court
to relieve a party for failure to appeal within the
time allowed, except as permitted in Rule 4(a)
of the Federal Rules of Appellate Procedure.
Courts with the approval of the Judicial Conference of the United States, and shall enter
therein each civil action to which these Rules
are made applicable. Actions shall be assigned consecutive file numbers. The file
number of each action shall be noted on the
folio of the docket whereon the first entry of
the action is made. All papers filed with the
clerk, all process issued and returns made
thereon, all appearances, orders, verdicts
and judgments shall be entered chronologically in the civil docket on the folio assigned
to the action and shall be marked with its file
number. These entries shall be brief but shall
show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing
execution of process. The entry of an order or
judgment shall show the date the entry is
made. When in an action trial by jury has
been properly demanded or ordered, the
clerk shall enter the word jury on the folio
assigned to that action.
(b) Indices; Calendars. Suitable indices of the
civil docket and of every civil judgment and
order referred to in subdivision (b) of this
Rule shall be kept by the clerk under the direction of the court. There shall be prepared
under the direction of the court calendars of
all actions ready for trial, which shall distinguish jury actions from court actions.
General Provisions.
APPENDIX B
691
ered by those statutes, the practice in the district courts shall conform to these Rules so
far as applicable.
(6) These Rules apply to proceedings for
enforcement or review of compensation orders under the Longshoremens and Harbor
Workers Compensation Act, Act of March 4,
1927, c. 509, 18, 21 (44 Stat. 1434, 1436), as
amended, U.S.C., Title 33, 918, 921, except
to the extent that matters of procedure are
provided for in that Act. The provisions for
service by publication and for answer in proceedings to cancel certificates of citizenship
under the Act of June 27, 1952, c. 477, Title III,
c. 340 (66 Stat. 260), U.S.C., Title 8, 1451, remain in effect.
(b) Scire Facias and Mandamus. The writs of
scire facias and mandamus are abolished. Relief heretofore available by mandamus or
scire facias may be obtained by appropriate
action or by appropriate motion under the
practice prescribed in these Rules.
(c) Removed Actions. These Rules apply to
civil actions removed to the United States district courts from the state courts and govern
procedure after removal. Repleading is not
necessary unless the court so orders. In a removed action in which the defendant has not
answered, the defendant shall answer or present the other defenses or objections available
under these Rules within 20 days after the receipt through service or otherwise of a copy
of the initial pleading setting forth the claim
for relief upon which the action or proceeding
is based, or within 20 days after the service of
summons upon such initial pleading, then
filed, or within 5 days after the filing of the petition for removal, whichever period is
longest. If at the time of removal all necessary
pleadings have been served, a party entitled
to trial by jury under Rule 38 shall be accorded it, if the partys demand therefor is
served within 10 days after the petition for removal is filed if the party is the petitioner, or if
not the petitioner within 10 days after service
on the party of the notice of filing the petition.
A party who, prior to removal, has made an express demand for trial by jury in accordance
with state law, need not make a demand after
removal. If state law applicable in the court
from which the case is removed does not require the parties to make express demands in
order to claim trial by jury, they need not
make demands after removal unless the court
directs that they do so within a specified time
if they desire to claim trial by jury. The court
692
APPENDIX B
amended by the court or abrogated by the judicial council of the circuit. Copies of rules
and amendments shall, upon their promulgation, be furnished to the judicial council and
the Administrative Office of the United States
Courts and be made available to the public.
(2) A local rule imposing a requirement of
form shall not be enforced in a manner that
causes a party to lose rights because of a nonwillful failure to comply with the requirement.
(b) Procedures When There Is No Controlling Law. A judge may regulate practice in any
manner consistent with federal law, rules
adopted under 28 U.S.C. 2072 and 2075, and
local rules of the district. No sanction or
other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district
rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.
APPENDIX B
these amendments shall take effect on September 1, 1947. They govern all proceedings
in actions brought after they take effect and
also all further proceedings in actions then
pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments
take effect would not be feasible or would
work injustice, in which event the former
procedure applies.
(c) Effective Date of Amendments. The
amendments adopted by the Supreme Court
on December 29, 1948, and transmitted to the
Attorney General on December 31, 1948, shall
take effect on the day following the adjournment of the first regular session of the 81st
Congress.
(d) Effective Date of Amendments. The
amendments adopted by the Supreme Court
on April 17, 1961, and transmitted to the Congress on April 18, 1961, shall take effect on July
19, 1961. They govern all proceedings in actions brought after they take effect and also all
further proceedings in actions then pending,
693
except to the extent that in the opinion of the
court their application in a particular action
pending when the amendments take effect
would not be feasible or would work injustice,
in which event the former procedure applies.
(e) Effective Date of Amendments. The
amendments adopted by the Supreme Court
on January 21, 1963, and transmitted to the
Congress on January 21, 1963, shall take effect on July 1, 1963. They govern all proceedings in actions brought after they take effect
and also all further proceedings in actions
then pending, except to the extent that in the
opinion of the court their application in a particular action pending when the amendments
take effect would not be feasible or would
work injustice, in which event the former procedure applies. [The practice of amending
Rule 86 to show effective times of amendments was discontinued after the 1963
amendments. Adoption and effective dates of
subsequent amendments are shown after the
relevant change in the Rule.]
694
APPENDIX B
Appendix of Forms
(See Rule 84)
Table of Forms
Form
1. Summons.
1-A. Notice of Lawsuit and Request for Waiver of
Summons.
1-B. Waiver of Service of Summons.
2. Allegation of Jurisdiction.
3. Complaint on a Promissory Note.
4. Complaint on an Account.
5. Complaint for Goods Sold and Delivered.
6. Complaint for Money Lent.
7. Complaint for Money Paid by Mistake.
8. Complaint for Money Had and Received.
9. Complaint for Negligence.
10. Complaint for Negligence Where Plaintiff Is
Unable to Determine Definitely Whether the
Person Responsible Is C.D. or E. F. or Whether
Both Are Responsible and Where His
Evidence May Justify a Finding of Wilfulness
or of Recklessness or of Negligence.
11. Complaint for Conversion.
12. Complaint for Specific Performance of
Contract to Convey Land.
13. Complaint on Claim for Debt and to Set Aside
Fraudulent Conveyance Under Rule 18(b).
14. Complaint for Negligence Under Federal
Employers Liability Act.
15. Complaint for Damages Under Merchant
Marine Act.
16. Complaint for Infringement of Patent.
17. Complaint for Infringement of Copyright and
Unfair Competition.
18. Complaint for Interpleader and Declaratory
Relief.
18-A. Notice and Acknowledgment for Service by
Mail.
19. Motion to Dismiss, Presenting Defenses of
Failure to State a Claim, of Lack of Service of
Process, of Improper Venue, and of Lack of
Jurisdiction Under Rule 12(b).
20. Answer Presenting Defenses under Rule 12(b).
21. Answer to Complaint Set Forth in Form 8,
With Counterclaim for Interpleader.
22-A. Summons and Complaint Against Third-Party
Defendant.
22-B. Motion to Bring in Third-Party Defendant.
23. Motion to Intervene as a Defendant Under
Rule 24.
24.
Appendix of Forms
Introductory Statement
1. The following forms are intended for illustration
only. They are limited in number. No attempt is
made to furnish a manual of forms. Each form
assumes the action to be brought in the
Southern District of New York. If the district in
which an action is brought has divisions, the
division should be indicated in the caption.
2. Except where otherwise indicated, each
pleading, motion and other paper should have
a caption similar to that of the summons, with
the designation of the particular paper
substituted for the word Summons. In the
caption of the summons and in the caption of
the complaint all parties must be named but in
other pleadings and papers, it is sufficient to
state the name of the first party on either side,
with an appropriate indication of other
parties. See Rules 4(b), 7(b)(2) and 10(a).
3. In Form 3 and the forms following, the words,
Allegation of jurisdiction, are used to
indicate the appropriate allegation in Form 2.
4. Each pleading, motion and other paper is to be
signed in his individual name by at least one
attorney of record (Rule 11). The attorneys
name is to be followed by his address as
indicated in Form 3. In forms following Form 3
the signature and address are not indicated.
5. If a party is not represented by an attorney,
the signature and address of the party are
required in place of those of the attorney.
695
APPENDIX B
)
)
)
)
)
)
)
)
)
)
696
APPENDIX B
Form 1. Summons
CAPTION OF CASE
SUMMONS
To the above-named Defendant:
You are hereby summoned and required to serve upon ____________, plaintiffs attorney, whose
address is _________________________, an answer to the complaint which is herewith served upon you,
within 201 days after service of this summons upon you, exclusive of the day of service. If you fail to do
so, judgment by default will be taken against you for the relief demanded in the complaint.
___________________________________
Clerk of Court
[Seal of the U.S. District Court]
Dated ____________________________________
(This summons is issued pursuant
to Rule 4 of the Federal Rules of
Civil Procedure)
1.
If the United States or an officer or agency thereof is a defendant, the time to be inserted as to it is 60 days.
697
APPENDIX B
Form 1-A.
698
APPENDIX B
Form 1-B.
Date/Signature
Printed/typed name:
[as ] ______________________________
[of ] ______________________________
To be printed on reverse side of the waiver form or set forth at the foot of the form:
Duty to Avoid Unnecessary Costs of Service of Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain parties to cooperate in saving
unnecessary costs of service of the summons and complaint. A defendant located in the United States
to waive service of a summons, fails to do so will be required to bear the cost of such service unless
good cause be shown for its failure to sign and return the waiver.
It is not good cause for a failure to waive service that a party believes that the complaint is
unfounded, or that the action has been brought in an improper place or in a court that lacks
jurisdiction over the subject matter of the action or over its person or property. A party who waives
service of the summons retains all defenses and objections (except any relating to the summons or to
the service of the summons), and may later object to the jurisdiction of the court or to the place where
the action has been brought.
A defendant who waives service must within the time specified on the waiver form serve on the
plaintiffs attorney (or unrepresented plaintiff) a response to the complaint must also file a signed copy of
the response with the court. If the answer or motion is not served within this time, a default judgment
may be taken against that defendant. By waiving service, a defendant is allowed more time to answer
than if the summons had been actually served when the request for waiver of service was received.
699
APPENDIX B
Plaintiff is a [citizen of the State of Connecticut]2 [corporation incorporated under the laws of the
State of Connecticut having its principal place of business in the State of Connecticut] and defendant is
a corporation incorporated under the laws of the State of New York having its principal place of
business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of
interest and costs, the sum of ten thousand dollars.
(b) Jurisdiction founded under [the Constitution of the United States, Article _____, _____]; [the
_____ Amendment to the Constitution of the United States, _____]; [the Act of _____, _____ Stat.
_____; U.S.C., Title _____, _____]; [the Treaty of the United States (here describe the treaty)],3 as
hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the
sum of ten thousand dollars.
(c) Jurisdiction founded on the existence of a question arising under particular statutes.
The action arises under the Act of _____, _____ Stat. _____; U.S.C., Title _____, _____, as
hereinafter more fully appears.
(d) Jurisdiction founded on the admiralty or maritime character of the claim. This is a case of
admiralty and maritime jurisdiction, as hereinafter more fully appears. [If the pleader wishes to invoke
the distinctively maritime procedures referred to in Rule 9(h), add the following or its substantial
equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).]
2.
3.
Allegation of jurisdiction.
Wherefore plaintiff demands judgment against defendant for the sum of _______ dollars, interest and
costs.
Signed: _______________________________
Attorney for Plaintiff
Address ________________________
700
APPENDIX B
Allegation of jurisdiction.
2. Defendant owes plaintiff _________ dollars according to the account hereto annexed as
Exhibit A.
Wherefore (etc. as in Form 3).
Allegation of jurisdiction.
2. Defendant owes plaintiff _______ dollars for goods sold and delivered by plaintiff to
defendant between ___________, 20____ and ___________, 20____.
Wherefore (etc. as in Form 3).
Allegation of jurisdiction.
2. Defendant owes plaintiff _______ dollars for money lent by plaintiff to defendant on
___________, 20____.
Wherefore (etc. as in Form 3).
701
APPENDIX B
Allegation of jurisdiction.
2. Defendant owes plaintiff _______ dollars for money paid by plaintiff to defendant by mistake
on ___________, 20____, under the following circumstances: [here state the circumstances with
particularity - see Rule 9(b)].
Wherefore (etc., as in Form 3).
Allegation of jurisdiction.
2. Defendant owes plaintiff _______ dollars for money had and received from one _______ on
___________, 20____, to be paid by defendant to plaintiff.
Wherefore (etc., as in Form 3).
Allegation of jurisdiction.
702
APPENDIX B
Form 10. Complaint for Negligence Where Plaintiff Is Unable to Determine Definitely Whether
the Person Responsible Is C.D. or E. F. or Whether Both Are Responsible and Where His Evidence
May Justify a Finding of Wilfulness or of Recklessness or of Negligence
CAPTION OF CASE
COMPLAINT
1.
Allegation of jurisdiction.
Allegation of jurisdiction.
703
APPENDIX B
Allegation of jurisdiction.
Wherefore plaintiff demands (1) that defendant be required specifically to perform said agreement, (2)
damages in the sum of _______ dollars, and (3) that if specific performance is not granted to plaintiff,
that plaintiff has judgment against defendant in the sum of _______ dollars.
Form 13. Complaint on Claim for Debt and to Set Aside Fraudulent Conveyance Under Rule 18(b)
CAPTION OF CASE
COMPLAINT ON CLAIM
FOR DEBT AND TO SET
ASIDE FRAUDULENT
CONVEYANCE UNDER
RULE 18(b)
1.
Allegation of jurisdiction.
4. Defendant C. D. on or about __________, 20____ conveyed all of his property, real and
personal [or specify and describe] to defendant E. F. for the purpose of defrauding plaintiff and
hindering and delaying the collection of the indebtedness evidenced by the note above referred to.
Wherefore plaintiff demands:
(1) That plaintiff have judgment against defendant C. D. for _______ dollars and interest; (2) that
the aforesaid conveyance to defendant E. F. be declared void and the judgment herein be declared a
lien on said property; (3) that plaintiff have judgment against the defendants for costs.
704
APPENDIX B
Form 14. Complaint for Negligence Under Federal Employers Liability Act
CAPTION OF CASE
COMPLAINT FOR NEGLIGENCE UNDER FEDERAL
EMPLOYERS LIABILITY ACT
1.
Allegation of jurisdiction.
2. During all the times herein mentioned, defendant owned and operated in interstate
commerce a railroad which passed through a tunnel located at _______________ and known as Tunnel
No. _______.
3. On or about __________, 20____, defendant was repairing and enlarging the tunnel in order
to protect interstate trains and passengers and freight from injury and in order to make the tunnel
more conveniently usable for interstate commerce.
4. In the course of thus repairing and enlarging the tunnel on said day defendant employed
plaintiff as one of its workmen, and negligently put plaintiff to work in a portion of the tunnel which
defendant had left unprotected and unsupported.
5. By reason of defendants negligence in thus putting plaintiff to work in that portion of the
tunnel, plaintiff was, while so working pursuant to defendants orders, struck and crushed by a rock,
which fell from the unsupported portion of the tunnel, and was (here describe plaintiffs injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually
earning _______ dollars per day. By these injuries he has been made incapable of any gainful activity,
has suffered great physical and mental pain, and has incurred expenses in the amount of _____ dollars
for medicine, medical attendance and hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of _______ dollars and costs.
705
APPENDIX B
706
APPENDIX B
Allegation of jurisdiction.
2. On __________, 20____, United States Letters Patent No. ______ were duly and legally issued
to plaintiff for an invention in an (here insert description of invention); and since that date plaintiff has
been and still is the owner of those Letters Patent.
3. Defendant has for a long time past been and still is infringing those Letters Patent by making,
selling and using _______________ embodying the patented invention, and will continue to do so
unless enjoined by this court.
4. Plaintiff has placed the required statutory notice on all _______________ manufactured and
sold by him under said Letters Patent and has given written notice to defendant of his said
infringement.
Wherefore plaintiff demands a preliminary and final injunction against continued infringement, an
accounting for damages and an assessment of interest and costs against defendant.
Allegation of jurisdiction.
2. Prior to __________, 20____, plaintiff, who then was and ever since has been a citizen of the
United States, created and wrote an original book, entitled _____.
3. This book contains a large amount of material wholly original with plaintiff and is
copyrightable subject matter under the laws of the United States.
4. Between __________, 20____, and __________, 20____, plaintiff complied in all respects with
the Act of (give citation) and all other laws governing copyright, and secured the exclusive rights and
privileges in and to the copyright of said book, and received from the Register of Copyrights a
certificate of registration, dated and identified as follows: _______, 20____, Class _______, No. _____.
5. Since __________, 20____, said book has been published by plaintiff and all copies of it made
by plaintiff or under his authority or license have been printed, bound and published in strict
conformity with the provisions of the Act of _______________ and all other laws governing copyright.
707
APPENDIX B
Form 17. Complaint for Infringement of Copyright and Unfair Competition, continued
6. Since __________, 20____, plaintiff has been and still is the sole proprietor of all rights, title
and interest in and to the copyright of said book.
7. After __________, 20____, defendant infringed said copyright by publishing and placing upon
the market a book entitled _______________, which was copied largely from plaintiffs copyrighted
book, entitled _______________.
8. A copy of plaintiffs copyrighted book is hereto attached as Exhibit 1; and a copy of
defendants infringing book is hereto attached as Exhibit 2;
9. Plaintiff has notified defendant that defendant has infringed the copyright of plaintiff, and
defendant has continued to infringe the copyright.
10. After __________, 20____, and continuously since about __________, 20____, defendant has
been publishing, selling and otherwise marketing the book entitled _______________, and has thereby
been engaging in unfair trade practices and unfair competition against plaintiff to plaintiffs irreparable
damage.
Wherefore plaintiff demands:
(1) That defendant, his agents and servants be enjoined during the pendency of this action and
permanently from infringing said copyright of said plaintiff in any manner, and from publishing, selling,
marketing or otherwise disposing of any copies of the book entitled _______________.
(2) That defendant be required to pay to plaintiff such damages as plaintiff has sustained in
consequence of defendants infringement of said copyright and said unfair trade practices and unfair
competition and to account for:
(a) all gains, profits and advantages derived by defendant by said trade practices and unfair
competition and
(b) all gains, profits and advantages derived by defendant by his infringement of plaintiffs
copyright or such damages as to the court shall appear proper within the provisions of the copyright
statutes, but not less than _______ dollars.
(3) That defendant be required to deliver up to be impounded during the pendency of this action
all copies of said book entitled _______________ in his possession or under his control and to deliver up
for destruction all infringing copies and all plates, molds and other matter for making such infringing
copies.
(4) That defendant pay to plaintiff the costs of this action and reasonable attorneys fees to be
allowed to the plaintiff by the court.
(5)
continued
708
APPENDIX B
Allegation of jurisdiction.
709
APPENDIX B
710
APPENDIX B
Form 19. Motion to Dismiss, Presenting Defenses of Failure to State a Claim, of Lack of Service of
Process, of Improper Venue and of Lack of Jurisdiction Under Rule 12(b)
CAPTION OF CASE
MOTION TO DISMISS
The defendant moves the court as follows:
1. To dismiss the action because the complaint fails to state a claim against defendant upon
which relief can be granted.
2. To dismiss the action or in lieu thereof to quash the return of service of summons on the
grounds (a) that the defendant is a corporation organized under the laws of _______________ and was
not and is not subject to service of process within the _______________ District of _______________,
and (b) that the defendant has not been properly served with process in this action, all of which more
clearly appears in the affidavits of _______________ and _______________ hereto annexed as Exhibits A
and B, respectively.
3. To dismiss the action on the ground that it is in the wrong district because (a) the
jurisdiction of this court is invoked solely on the ground that the action arises under the Constitution
and laws of the United States and (b) the defendant is a corporation incorporated under the laws of
the State of _______________ and is not licensed to do or doing business in the _______________
District of _______________, all of which more clearly appears in the affidavits of _______________ and
_______________ hereto annexed as Exhibits C and D, respectively.
4. To dismiss the action on the ground that the court lacks jurisdiction because the amount
actually in controversy is less than _______ dollars.
_________________________________________
Attorney for Defendant
_________________________________________
Address of Attorney for Defendant
Notice of Motion
To: _______________________________________________
Attorney for Plaintiff
Please take notice that the undersigned will bring the above motion on for hearing before this
Court at Room ______________, United States Courthouse, _______________, _______________, on the
______ day of __________, 20____, at _______ oclock ___. M., in the forenoon of that day or as soon
thereafter as counsel can be heard.
_________________________________________
Signature of Attorney for Defendant
Address: _________________________________
711
APPENDIX B
712
APPENDIX B
Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaim for Interpleader
CAPTION OF CASE
ANSWER TO COMPLAINT;
COUNTERCLAIM IN INTERPLEADER
Defense
Defendant admits the allegations stated in paragraph ____ of the complaint; and denies the allegations
stated in paragraph ____ to the extent set forth in the counterclaim herein.
Counterclaim for Interpleader
1.
2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it
which he claims to have received from _______________.
3. ______________ has notified the defendant that he claims such deposit, that the purported
assignment is not valid, and that he holds the defendant responsible for the deposit.
Wherefore defendant demands:
(1) That the court order ______________ to be made a party defendant to respond to the
complaint and to this counterclaim.4
(2)
That the court order the plaintiff and ______________ to interplead their respective claims.
(3)
That the court adjudge whether the plaintiff or ______________ is entitled to the sum of money.
(4) That the court discharge defendant from liability in the premises except to the person it shall
adjudge entitled to the sum of money.
(5)
4.
That the court award to the defendant its costs and attorneys fees.
Rule 13(h) provides for the court ordering parties to a counterclaim, but who are not parties to the original action, to be brought in as defendants.
713
APPENDIX B
5.
Make appropriate change where __________ is entitled to only partial recovery-over against __________.
714
APPENDIX B
715
APPENDIX B
6.
For other grounds of intervention, either of right or in the discretion of the court, see Rule 24(a) and (b).
716
APPENDIX B
717
APPENDIX B
That each of the following documents, exhibited with this request, is genuine.
_________________________________________
Attorney for Plaintiff
Address __________________________________
718
APPENDIX B
TO: (Here insert the names of the defendants to whom the notice is directed):
You are hereby notified that a complaint in condemnation has heretofore been filed in the office of
the clerk of the United States District Court for the Southern District of New York, in the United States
Courthouse in New York City, New York, for the taking (here state the interest to be acquired, as an
estate in fee simple) for use (here state briefly the use, as a site for a post-office building) of the
following described property in which you have or claim an interest.
(Here insert brief description of the property in which the defendants to whom the notice is directed,
have or claim an interest.)
The authority for the taking is (here state briefly, as the Act of _______, ________ Stat. ________,
U.S.C., Title ______, ________).7
You are further notified that if you desire to present any objection or defense to the taking of your
property you are required to serve your answer on the plaintiffs attorney at the address herein
designated within 20 days after _______________.8
Your answer shall identify the property in which you claim to have an interest, state the nature and
extent of the interest you claim, and state all of your objections and defenses to the taking of your
property. All defenses and objections not so presented are waived. And in case of your failure so to
answer the complaint, judgment of condemnation of that part of the above-described property in
which you have or claim an interest will be rendered.
continued
7.
8.
719
APPENDIX B
The interest to be acquired in the property is (here state the interest as an estate in fee simple).
5. The property so to be taken is (here set forth a description of the property sufficient for its
identification) or (described in Exhibit A hereto attached and made a part hereof).
6.
The persons known to the plaintiff to have or claim an interest in the property11 are:
(Here set forth the names of such persons and the interest claimed.)12
continued
9.
If the plaintiff is not the United States, but is, for example, a corporation invoking the power of eminent
domain delegated to it by the state, then this paragraph 1 of the complaint should be appropriately modified and should be preceded by a paragraph appropriately alleging federal jurisdiction for the action, such
as diversity. See Form 2.
10.
And where appropriate add a citation to any applicable Executive Order.
11.
At the commencement of the action the plaintiff need name as defendants only the persons having or
claiming an interest in the property whose names are then known, but prior to any hearing involving the
compensation to be paid for a particular piece of property the plaintiff must add as defendants all persons
having or claiming an interest in that property whose names can be ascertained by an appropriate search
of the records and also those whose names have otherwise been learned. See Rule 71A(c)(2).
12.
The plaintiff should designate, as to each separate piece of property, the defendants who have been
joined as owners thereof or of some interest therein. See Rule 71A(c)(2).
720
APPENDIX B
Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1)
CAPTION OF CASE
SUGGESTION OF DEATH
UPON THE RECORD UNDER
RULE 25(a)(1)
_______________ [describe as a party, or as executor, administrator or other representative or
successor of _______________, the deceased party] suggests upon the record, pursuant to Rule
25(a)(1), the death of _______________ [describe as party] during the pendency of this action.
721
APPENDIX B
722
APPENDIX B
APPENDIX B
723
GLOSSARY
Abode service Leaving a copy of a summons and
complaint at the defendants usual place of
abode with a person of suitable age and discretion residing there.
Actionable wrong Established category of offenses for which lawsuits are allowed.
Adjudicate Resolve a dispute.
Administrator Person in charge of a probate estate.
Admit Allow in the court record and as part of the
evidence to be considered by the jury.
ADR See alternative dispute resolution.
Affiant Person signing an affidavit.
Affidavit Sworn testimony that is written down
and notarized.
Affidavit of service Affidavit serving as proof
that service of court papers was completed
(also called return of service).
Affirm Let a lower courts decision stand.
Affirmative defense Reasons offered by the defendant as to why the defendant cannot be
found liable even if the plaintiff establishes
every element of her cause of action.
Agent Person who has the legal authority to act
for someone else.
Allegations Statements in pleading laying out the
partys version of what caused the dispute.
Alternative dispute resolution (ADR) Means of
resolving disputes that are used as alternatives
to litigation including arbitration, mediation,
med-arb, summary jury trial, and mini-trial.
Annotation Summary of case.
Answer Pleading in which defendant gives his
side of the story.
Appeal Formal request in which a party asks a
higher court to review the decision of a lower
court and change it in some way.
Appear Submit formally to jurisdiction of the
court.
Appellant Party filing an appeal.
Appellate court Court that decides appeals.
Appellate jurisdiction Power of court to hear
appeals.
Appellee Party responding to an appeal.
Arbitration Informal hearing held before a neutral third party who renders a decision and issues an award.
726
Claim Assertion of liability based on a single
cause of action.
Closing argument Final statements made by
an attorney to jury or court that summarizes
evidence.
Complaint Formal, written statement describing
what a dispute is about and what plaintiff wants
court to do.
Compulsory counterclaims Transactional claims
defendant has.
Concurrent jurisdiction Shared jurisdiction.
Conditional delivery Check made out to the
plaintiff by the insurance company that is not
to be deposited until the plaintiff has signed the
release and returned it in the mail to the insurance company.
Counterclaim Lawsuit by the defendant against
the plaintiff, which is raised in the defendants
answer.
Counterclaimant Person asserting a counterclaim.
Counterdefendant Plaintiff in a counterclaim.
Court A place where judges work.
Court papers Papers generated in a lawsuit that
must be filed with the court or delivered to the
opposing party.
Court reporter Person who takes down in shorthand everything that is said.
Court-annexed arbitration Arbitration that takes
place within the court system and that is governed by the local rules.
Cross-claim Claim made by one defendant against
another defendant.
Cross-claimant Person asserting a cross-claim.
Cross-defendant Defendant against whom a
cross-claim has been filed.
Cross-examination Examination by an attorney of
a witness called by the opposing party.
Custodian of records Person responsible for the
files and records of an entity.
Damages Money determined by court as remedy
in civil action.
Deadline Last day on which a response can be
filed.
Decedent Person who has died.
Default judgment Judgment entered in plaintiffs
name when defendant fails to respond to a complaint in a timely manner.
Defendant Party being sued.
Demonstrative evidence Visual aids used to
prove the facts of a case.
Deponent One who is deposed.
Deposing Taking a persons deposition.
Deposition Discovery procedure in which a person is required to appear at a specified place
and time to answer questions.
GLOSSARY
GLOSSARY
727
Hold harmless Pay for someone elses losses; indemnify.
Hostile witness Uncooperative witness.
Hung jury Jury unable to reach a verdict.
Impeach To discredit.
Implied authority Authority of an agent to act for
the principal.
Indemnify Pay for someone elses losses; hold
harmless.
Independent medical examination Examination of a party whose medical condition is at
issue by a doctor of the requesting partys
choice.
Indispensable party Party without whom a just
result cannot be achieved.
Injunction Court order to refrain from doing
something.
Interlocutory appeal Appeal taken before a case
is over and judgment is entered.
Interrogatories Written questions directed to an
opposing party.
Issue of fact Question relating to what happened
resulting in dispute between litigants.
Issue of law Question relating to what the law
requires.
Joinder Joinder of issue occurs when all the
pleadings have been filed.
Judge Person who runs a courtroom, makes all
legal decisions, and can sometimes decide entire cases.
Judge pro tem Experienced attorney who volunteers to act as a judge in a particular case.
Judgment Court paper specifying what the plaintiff is awarded.
Judgment Formal decision.
Judgment creditor Party to whom money is
awarded.
Judgment debtor Party ordered to pay the
money awarded the judgment creditor.
Judgment debtors examination Questioning of
the judgment debtor about its assets.
Judgment lien Lien that arises out of recording a
judgment.
Judgment proof Person or entity without assets
that can be collected by a judgment creditor.
Jurisdiction Power to adjudicate a particular
kind of dispute.
Jurisdiction of the person Power of the court to
render a decision that will be binding on that
party.
Jurisdiction of the subject matter Power to hear
and decide cases of a given type.
Jurisdictional amount Amount in controversy in
a federal case.
728
Jury instructions Rules of substantive law a jury
must apply in rendering its decision.
Leading question Question that tells the witness
the answer the attorney wants to hear.
Lien Security interest giving the lienholder the
right to sell property to pay off a debt.
Limitations period Time during which a suit must
be filed.
Limited subject matter jurisdiction Power to
hear only certain categories of cases.
Litigant Party to a lawsuit.
Litigate Conduct or defend a lawsuit.
Litigator Attorney who specializes in handling
lawsuits.
Lodge Prepare and deliver a court paper.
Long-arm statute Statutes that authorize suits
against non-residents in certain situations.
Mandate Order telling the trial court what to do
next.
Mandatory arbitration Arbitration that is required of parties before they can have a conventional trial.
Mandatory disclosure rules Rules that require a
party to turn over information to the opposing
party without being asked to do so.
Med-arb Mediation followed by an arbitration using the same neutral third party if the mediation fails to resolve the conflict.
Mediation Problem-solving process involving a
neutral third party who facilitates the parties in
reaching a resolution but who lacks authority
to render a decision.
Mediator Disinterested third party who assists
the parties in negotiating a compromise.
Memorandum of points and authorities Memorandum accompanying a motion; gives the detailed reasons of why the judge should do as
the moving party is requesting.
Merits Whether acts and events alleged in plaintiffs complaint are legally sufficient to entitle
plaintiff to win a judgment and whether plaintiff
has sufficient evidence to prove those acts and
events.
Minimum contacts Contacts a non-resident must
have with a state before the court in that state
can assert jurisdiction under its long-arm
statutes in accord with constitutional due
process requirements.
Mini-trial Settlement process in which the parties
present their case to a neutral third party who
issues an advisory opinion, which the parties
use to negotiate a settlement.
Minute entry Formal written communication of a
judges decision.
GLOSSARY
GLOSSARY
729
Pleadings Formal process in lawsuit by which
parties are compelled to specify in writing what
the dispute is about; includes complaint, answer, and reply.
Political subdivision City or county.
Poll the jury Public questioning of the jury by
the judge to make sure each juror agreed to the
verdict.
Praecipe Formal request for a court clerk to take
some action.
Prayer for relief Concluding section of complaint stating specifically what plaintiff wants
court to do.
Preponderance of the evidence Plaintiffs obligation to prove that each element of a cause of action more probably than not occurred.
Pretrial order Court paper that specifies what attorneys can and cannot present at trial.
Pretrial statement See pretrial order.
Prevailing party Party who has won a lawsuit.
Prima facie Credible evidence presented to support each element of a cause of action.
Primary authority Source of law, such as a statute
or case law.
Principal Person for whom an agent is acting.
Private arbitration Arbitration arising out of a
contractual agreement.
Private judging Resolution process in which the
parties agree to have a neutral third party, usually a retired judge, hear and decide their case.
Probable verdict range Maximum and minimum
amounts a jury is likely to award if it decides in
favor of the plaintiff.
Probate estate Artificial entity created by the
law to receive and dispose of the assets of the
deceased.
Procedural law Law of remedies.
Process server Someone whose job is to locate
parties and witnesses and serve court papers
on them.
Professional courtesy Customs governing the
asking and granting of extensions and other favors between opposing attorneys.
Propounding Preparing interrogatories and
submitting them to the opposing party to be
answered.
Propounding party Party who prepares interrogatories or some other discovery document.
Rebuttal Plaintiffs response to defendants
presentation.
Record release form Form signed by a client authorizing records to be released to an attorney.
Redirect examination Reexamination of a witness
by the attorney who called him after the witness
has been subjected to cross-examination.
730
Release Agreement in which a plaintiff relinquishes her claims against the defendant.
Remittitur Reduction of an unreasonably excessive award.
Removal Moving of a case from one court to
another.
Reply Court paper prepared by the moving party
in rebuttal to the response prepared by the
party opposing the motion.
Reply brief Brief in which the appellant answers
any questions raised in the appellees responding brief.
Request for admissions Request that a party admit or deny specific factual statements.
Request for entry upon land for inspection Request to enter a location that is under another
persons control for reasons of inspection.
Request for production of documents and things
Court paper requesting documents from an opposing party.
Res judicata Prohibition against relitigating any
issues around which a court has entered judgment.
Respondent Responding party; party opposing a
motion.
Responding brief Appellees brief stating the reasons why the appellate court should not reverse the trial courts decision.
Responding party Party required to answer interrogatories or some other discovery request.
Response Court paper prepared by the party opposing a motion.
Rests Party is finished presenting evidence.
Return of service Affidavit serving as proof that
service of court papers was completed (also
called affidavit of service).
Reverse Set aside a trial courts decision.
Reversible error Error that justifies an appellate
court setting aside or modifying a trial courts
decision.
Scheduling conference Conference involving the
parties and the judge at which the judge issues
a scheduling order, specifying what discovery
will be allowed, what motions will be filed, and
the deadlines for the completion of each task.
Scope Subject matter covered during examination.
Secondary authority Legal reference used to find
primary authority, such as a treatise or Restatement.
Service Delivery of court papers via a formal
process.
Settle Agreement to end a dispute.
Sever Split off a claim for a separate decision.
Sovereign immunity Immunity of government
from suit.
GLOSSARY
GLOSSARY
731
Tribunal Court or any other adjudicative officer.
Trier of fact One who renders a verdict (judge or
jury).
Trustee Person designated in a trust to whom
property is transferred.
Trustor Person designated in a trust to transfer
property to another person (trustee).
Under advisement Judges decision to issue a decision about a matter before her at a later date.
Venue Rules requiring suit to be brought in place
least inconvenient for parties and witnesses.
Verdict Formal written decision indicating how
dispute was resolved.
Voir dire Questioning of potential jurors.
Voluntary arbitration Arbitration used by the
parties by choice.
Waive Voluntarily and knowingly give up a right.
Witness statement Written or electronically
recorded reproduction of a witnesss version of
the facts.
Writ of execution Court order directing a law enforcement official to seize specific property and
sell it at public auction.
INDEX
abode service, 310, 312
accuracy
of answers, 349
in complaint drafting, 29495
actionable wrong, 53
adjudicate, 6
adjudication, judgment after,
58386
administration, 2529, 31, 33
Administrative Dispute Resolution Act (ADRA),
118, 138
administrative information, 261
administrative remedies, 260
administrator, 314
admissibility, 398
admissions, 73, 344, 34546. See also requests
for admissions
adverse parties, 25657
advocacy in mediation, 125
affidavit of service, 55
affidavits, 55, 54243
affirm, 25, 204
affirmative defenses, 56, 342, 346
agents, service of complaints on, 31011, 31314
allegations, 52, 297
and answers, 34346
factual basis of, 422
general, 28890
alternative dispute resolution (ADR), 11, 13840
arbitration, 11822
client preparation, 137
defined, 117
history of, 11718
limitations of, 13233
med-arb, 12627
mediation, 12226
mini-trial, 12829
neutral expert fact finding, 130
ombudsman, 130
private judging, 129
pros and cons, 13032
summary jury trials, 12728
training, 132
alternative pleading, 291
ambiguous questions, 41415
American Arbitration Association (AAA), 11920, 138
annotations, 30
answer drafting
example, 34951
exercises, 35152
instructions, 33949
answer due date, 316
answer, 5657
alternatives to, 33739
to discovery requests
example, 42630
exercises, 43032
instructions, 41026
procedure for, 40910
purpose of, 409
service of, 5758
strategy considerations and role of paralegals, 339
appeals, 22, 25, 19496, 2037, 2089, 21112
appear, 56
appellant, 25, 204
appellate courts, 22, 23, 25
appellees, 25, 204
arbitration, 117, 11822, 260
arbitrator, 6
as matter of law, 97
assets, finding, 198, 210
attachments, 49798, 52223
attendance, resisting, 473
attorney fees, 593. See also motion to set attorneys
fees
attorneyclient privilege, 415
attorneys, 56
and depositions, 47071, 47374
locating, 304
authorities, 205, 27677
automatic stay, 337
background facts, 385, 389
backings, for court papers, 274
bad facts, 421
bankruptcy, 337
Bankruptcy Court, 28
best alternative to a negotiated agreement
(BATNA), 137
billable hours, 13435
bill of costs, 592
binding arbitration, 119
734
blocked and indented quotations, 277
body of document, for court papers, 27677
boilerplate defenses, 34647
bond, supersedes, 195
bottom-up case analysis, 230
brevity, 53132
briefs, 2056, 571
bulletproof requests, 36667
burden of proof, 169
burdensome questions, 417
calendars, 33132. See also docketing
captions, 54
for answers, 343, 413
for court papers, 275
for disclosure statements, 442
for discovery documents, 368
preparing, 28687
for written interrogatories, 392
case analysis, 230
case file, organizing, 232
caseload, 246
case management conference, 557
case management order, 557
case management schedule, 557
case management statement, 557
case tracking, 557
case workup, 253
example, 26668
exercises, 26869
instructions
client interviewing steps, 25461
investigation steps, 26164
settlement demand steps, 26466
cataloging, 37172
causes of action, 52, 53, 221, 222. See also
issues outline
and complaint drafting, 29092
federal law, 246
researching, 262
state law, 246
transactional, 348
central index, 1056
certificate of readiness, 149
certificate of service, 27879, 348, 368
chambers, 94
circuits, 22
citations, 30, 32, 27677, 519
cite, 276
citizenship, 23940
city courts, 29
civil action, 4
civil lawsuits. See lawsuits
civil procedure
defined, 4
importance of, 34
terminology, 49
INDEX
735
INDEX
costs
bill of, 592
escalation of, 612
statement of, 178
taxable, 177, 58586, 59193
counterclaimant, 347
counterclaims, 57, 34748
compulsory, 348
replies to, 348
counterdefendant, 347
court annexed, 119
courtesy, professional, 319
court files, locating, 304
Court of Appeals, 28
Court of Claims, 28
court papers, 7, 55
creating, 27380
deadlines, 32635
postcomplaint service of, 32326
court reporters, 75, 46768
court reporting, real-time, 567
courts, 6, 2022, 3637
administration, 2529
appellate, procedure in, 23, 25
city, 29
federal, 2223
personal jurisdiction in, 243
state law causes of action in, 246
and subject matter jurisdiction, 23940
and venue, 244
jurisdiction, 29
procedure questions, 3033
small claims, 29
specialty, 2829, 237
state, 25
procedure, 585
and subject matter jurisdiction, 23839
and venue, 24344
court selection
example, 24849
exercises, 24950
importance of, 235
instructions, 23547
See also forum shopping
cover sheet, 53
cross-appeals, 204
cross-claimant, 347
cross-claims, 57, 34748
cross-defendant, 347
cross-examination, 16061, 162
custodians of records, deposing, 466
damages, 5, 25758
calculating, 265, 39091, 44647
and ethics, 614
general, 289
special, 289
date
on answers, 348, 42224
on complaint drafting, 29394
on court papers, 278
on disclosure statements, 448
on discovery documents, 368
deadlines, 1034, 323
awareness of, 412
computing, 32627
of opponents, 332
setting
example, 33234
exercises, 33435
instructions, 32732
debtors exam, 198
decedent, 314
decision making, strategic, 4849
default, 337
default judgments, 58, 582
example, 59499
exercises, 599, 602
instructions, 58693
defendants, 5, 16870
defenses
affirmative, 56, 342, 346
boilerplate, 34647
researching, 262
definitive statements. See motion for a more
definitive statement
delaying tactics, 612
deliberation, 17375
demonstrative evidence, 154, 56667
denial, 344, 34546
de novo trial, 118, 119
deponent, 75
deposing, 459
deposition outlining, 47677
depositions, 7576, 355
advantages of, 45960
alternatives to, 46162
example, 47781
exercises, 48182
follow-up, 518
instructions
clerical steps, 46769
concluding step, 47477
planning and taking testimony, 46974
preparatory steps, 460, 46267
procedural goals, 460
summarizing, 48283
testimony, 570
direct examination, 160
discharge in bankruptcy, 337
disciplinary proceedings, 605
disclosure, 55859
of exhibits and witnesses,
42122
736
of rebuttal evidence, 422
disclosure rules, 438, 441
disclosure statements
and ethics, 615
example, 44950
exercises, 45556
inadequate, 44344
instructions
concluding steps, 449
drafting steps, 44248
preparatory steps, 44042
mandatory, 8182, 35556, 357, 435, 43839, 615
and trial preparation process, 43637
discoverable, 365
discovery, 10, 7274, 85
adversarial side of, 51114
depositions, 7576
disputes over, 511
document
example, 37481
exercises, 38182
instructions, 36474
objectives of, 361
process, 36162
strategy and goals, 361
tools of, 36264
enforcement, 82
and ethics, 610
evidence, informal gathering
of, 82
of expert opinion, 80
independent medical examinations, 8081
limitations on, 8182, 438
mandatory disclosure statements (see disclosure
statements)
overview, 35758
and paralegals, 83, 35859
reengineering process, 435
requests for admissions, 7980
requests for production of documents and things,
7779
supplementation and disclosure, 55859
written (see written interrogatories)
discovery citations, notebook
of, 519
discovery cutoff date, 362
discovery legalese, 367
discovery motions, 100103, 488. See also motion to
compel
discovery reform, 35556, 437
discovery requests
deadlines for, 328
responding to
example, 42630
exercises, 43032
instructions, 41026
procedure for, 40910
purpose of, 409
INDEX
737
INDEX
evidence, 7
demonstrative, 154
documentary, 61
and document discovery, 373
false, 609
informal gathering of, 82
for motion for summary judgment, 54243
presentation of
closing arguments, 17172
defendants case, 16870
deliberation and verdict, 17375
jury instructions and submission to jury,
17273
motions, 17071
plaintiffs case, 15962
rebuttal, 170
resting, 16263
rebuttal, 422
tampering with, 61011
evidence presentation systems, 567
examination, 75, 16061, 198
exclusions, 73
execution, 197, 199201
executor, 314
exempt properly, 337
exhibits
blowups of, 566
at depositions, 471
disclosure of, 42122
limiting, 390
marking and preparing, 56566
preparation of, 15354
expert fact finding, neutral, 130
expert witnesses, 80, 464
explanations, clarity of, 509
eyewitnesses, 46465
fact checking, in complaint drafting, 295
fact finding, neutral expert, 130
fact gathering, 4748
failure to state claim, 97, 33839
false evidence, 609
Federal Arbitration Act, 138
federal courts, 2223
personal jurisdiction in, 243
state law causes of action in, 246
and subject matter jurisdiction, 23940
and venue, 244
federal disclosure rules, 441
federal law causes of action, 246
federal procedure, 31
federal question jurisdiction, 239
Federal Rules of Civil Procedure (FRCP), 30
federal transfer, 245
filing, 6, 27
answer drafts, 349
answers to interrogatories, 424
and deadlines, 32526
738
indexes
central, 1056
computer-generated, 476
indispensable parties, 342
individual defendants, personal service on, 309, 31213
informal requests, 36364
information
administration, 261
background facts, 385, 389
discoverable, 442
for answering interrogatories, 41112
known facts, 385, 39192
information sheet, 5253
information sources, 26061
injunctions, 5
in limine. See motion in limine
inquiry, duty, 412
in rem, 243
insurance coverage, disclosing, 44748
interlocutory appeals, 205, 206
interrogatories, written, 77, 355
drafting
example, 400407
exercises, 407
instructions, 388400
leaky, 395
limitations on, 388
numbering, 393
procedure for, 38588
uses of, 385
interviewing, 25461, 264, 270
introductory paragraph, for court papers, 27576
investigation, 4748, 26164, 412
issue, joinder of, 5960
issues of fact, 7
issues of law, 7
issues outline, 222
example, 22831
exercises, 23132
instructions, 22227
updating, 44142
joinder of issue, 5960
judge pro tem, 556
judges, 6
demographics, 24647
improperly influencing, 612
judgments requiring approval from, 583, 585, 589
judgment collection, 19497, 21112
collectibility conundrum, 19798
execution, 199201
finding assets, 198
judgment debtors options, 2013
and paralegals, 203
judgment creditor, 195, 198
judgment debtors, 195
assets of, 210
options of, 2013
INDEX
739
INDEX
motions, 1067
deadlines for, 328
deciding, 9496
and decision making, 535
discovery, 100103, 488
early-stage, 53540
and jury instructions, 17071
on merits, 96100
and paralegals, 104
presenting, 9294
responding to, 499
scheduling orders and deadlines, 1034
substantive, 488
types of, 48789
See also specific motions
motion to compel, 100102, 488
example, 523, 52528
exercises, 52831
filing, 513
instructions
concluding steps, 523
drafting steps, 52123
preparatory steps, 51521
responding to, 524
motion to continue, 489
motion to dismiss, 97, 33839, 488, 536, 53839,
582
motion to set and certificate of readiness, 149
motion to set attorneys fees, 489
motion to strike, 97, 488, 53637
motion writing
brevity and simplicity, 53132
example, 5037
exercises, 508
instructions
concluding steps, 498503
drafting steps, 49398
local rules, 49293
refining skills for, 55152
rules governing, 49192
transitions and clear explanations, 50910
motorist statutes, nonresident, 313
movant, 491
moving party, 491
multiple parties, 341
narrative reports, 267
National Academy of Arbitration (NAA), 120
natural person, 5
neutral expert fact finding, 130
nonbinding arbitration, 119
nonresident motorist statutes, 313
nonroutine defendants, service of complaints on,
31215
notice of appeal, 205
notice of deposition, 459
Notice of Independent Medical Examination, 8081
notice of motion, 491
740
notice of service, 279
notice pleading, 291
notices, 326
numbering systems, 287
for answers, 343
for documents, 38283
for interrogatories, 393
objectionable questions, 41318
objections
at depositions, 474
and discovery, 51112
offers, 265
ombudsman, 130
opening brief, 206
opening statements, 15859, 561
opposing parties, 611
oral argument, 94
orders, 95
case management, 557
pretrial, 14950, 44960
scheduling, 1034
organization, of court papers, 277
original files, 364
outcome documentation, 261
outlining, deposition, 47677. See also
issues outline
overcapitalization, 295
overpromise, 607
overrule, 25
papers. See court papers
paralegals
and answers, 339
and appeals, 2089
and arbitration, 12122
and court system, 34
and depositions, 470
and discovery, 83, 35859
ethical rules for, 6069
and judgment collection, 203
and lawsuits, 11, 5152
and med-arb, 127
and mediation, 12425
and mini-trials, 129
and motions, 104
and pleadings, 60
tasks of, 1213
and trial preparation, 15455
parties, 5
and complaint drafting, 287
indispensable, 342
multiple, 341
opposing, 611
prevailing, 593
propounding, 51214
responding, 51112
INDEX
unidentified, 296
partnerships, service of complaints on, 314
pendent jurisdiction, 239
peremptory challenges, 157
personal jurisdiction, 24043
personal representative, 314
personal service, 54
on agents, 31011
on individuals, 309
on nonroutine defendants, 312
persuasive writing, 49495
physicianpatient privilege, 415
plaintiffs, 5
case presentation, 15962
pleadings, 6, 9
answer, 5657
alternatives to, 33739
filing and service of, 5758
strategy considerations and role
of paralegals, 339
answer drafting
example, 34951
exercises, 35152
instructions, 33949
common law, 8
complaint, 52
complaint drafting, 285
concluding steps, 29497
drafting steps, 28694
example, 298302
exercises, 3023
precision in, 297
preparatory steps, 28586
style, 297
damages, 289
deadlines for, 328
forum choice, 59
joinder of issue, 5960
and paralegals, 60
process, filing and service of, 5256
reply, 59
vocabulary, 29697
political subdivisions, 5
polling the jury, 174
positioning, 50
praecipes, 58
prayer for relief, 52, 292293, 347
preamble, 287
for answers, 343, 413
for disclosure statements, 442
for discovery documents, 36869
for written interrogatories, 392
preponderence of the evidence, 169
press, improper statements to, 613
pretrial conferences, 14950, 557. See also motion
for a pretrial conference
pretrial orders, 14950, 44960
741
INDEX
742
simplicity, 53132
small claims courts, 29
sound recording, 566
sovereign immunity, 49
special damages, 289
specialty cases, procedure in, 33
specialty courts, 2829, 237
special verdict, 174
specific performance, 5
state courts, 22, 25
procedure, 585
and subject matter jurisdiction,
23839
and venue, 24344
state law causes of action, 246
state law procedure, 31
state residents, and personal jurisdiction,
241
statement of costs, 178
status conferences, 104
statutes of limitations, 25859, 260
stay, 195, 337
stipulations, 153, 33132, 58283
strategic decision making, 4849
strike. See motion to strike
subject matter jurisdiction, 23840
subpoena duces tecum, 78, 363
subpoenas, 75, 36971
subpoenas ad testificandum, 363
substantive law, 4, 246
substantive motions, 488
sum certain, 588, 59091
summary judgment. See motion for summary
judgment
summary jury trials, 117, 12728
summons, 53, 3057
superior court, 25
supersedes bond, 195
supplementation, 366, 399400, 424, 55859
supplementation checks, docketing, 449
Swift v. Tyson, 247
tag jurisdiction, 24142
tampering
with evidence, 61011
with witnesses, 61112
Tax Court, 28
taxable costs, 177, 58586, 59193
testifying, 7
testimonial evidence, 7
testimony, 7
courtroom, 57879
deposition, 46974, 476
preparing, 56870
things. See requests for production of documents
and things
third person, 296
INDEX
third-party claims, 57
third-party complaint, 57
third-party witnesses, 611
tickler systems, 335
timekeeping, 13435
time management, 35
to do lists, 35
top-down case analysis, 230
training, for alternative dispute resolution, 132
transactional causes of action, 348
transcripts, 75, 47477
transfer, 24445
transformative mediation, 123
transitions, 509
trial briefs and memoranda, 571
trial courts, 22
trial de novo, 118, 119
trial notebook, 57172
trial preparation
and disclosure statements, 43637
example, 57276
exercises, 57678
task checklist
closing arguments and opening
statements, 561
demonstrative evidence, visual aids,
and other props, 56667
exhibits, 56566
final discovery supplementation and
disclosure, 55859
jury instructions, 56365
motions in limine, 568
pretrial statement/order, 55960
testimony, 56870
trial briefs and memoranda, 571
trial notebook, 57172
voir dire questions, 56163
trials, 7, 15556
average time to, 246
jury selection, 15657
opening statements, 15859
ordeal of, 555
presentation of evidence, 159
closing arguments, 17172
defendants case, 16870
deliberation and verdict, 17375
jury instructions and submission to jury,
17273
motions, 17071
plaintiffs case, 15962
rebuttal, 170
resting, 16268
See mini-trials; summary jury trials
trial setting, obtaining, 14849, 55558
trial to the court, 582
tribunal, 609
trier of fact, 78
743
INDEX
trustee, 315
trustor, 315
trusts, 31415
truth, 290
type size, for court papers,
274, 276
U.S. Bankruptcy Court, 28
U.S. Court of Appeals, 28
U.S. Court of Claims, 28
U.S. District Courts, 55658
U.S. Tax Court, 28
under advisement, 95
under submission, 95
unidentified parties, 296
venue, 6, 24344
verdict, 7, 17378, 581
verification
of answers, 348, 42224
of complaint drafting, 29394
of disclosure statements, 448
video recordings, 566
visual aids, 56667
voir dire, 15657, 56163
voluntary arbitration, 119
voluntary compliance, 51213, 51720
waive, 308
waiver, 416
waiver of service, 3089
weekends, and deadlines, 330
witnesses
attendance of, 46869
coaching, 570
and depositions, 46365, 474
disclosure of, 42122
expert, 80, 464
hostile, 161
identifying, 389
interviewing, 264
limiting, 390
planning for, 56869
scheduling, 569
tampering with, 61112
third-party, 61112
uncooperative, 46162
witness statements, 263, 461
working file, 84
work product, 41617
worst alternative to a negotiated agreement
(WATNA), 137
writ of execution, 199
writing skills, refining, 551
written interrogatories, 77, 355
drafting
example, 400407
exercises, 407
instructions, 388400
leaky, 395
limitations on, 388
numbering, 393
procedure for, 38588
uses of, 385