Study and Note-Taking Guide - Chapter 10 PDF

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Chapter 10 outline for taking notes...

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Introduction to Law and the Legal Profession LGLA 1307 Fall 2017 STUDY AND NOTE-TAKING GUIDE DISCLAIMER: The outline below is offered solely to assist you in taking notes in class and studying the material. There may be additional material addressed in the class lectures and/or the textbook that are not listed in the outline for which you may be responsible on assignments, quizzes, or exams. Chapter 10: Civil Litigation: Before the Trial I.

Overview A.

Common paralegal tasks in trial preparation: 1.

Researching relevant law

2.

Gathering and documenting evidence

3.

Creating and Organizing a litigation file

4.

Meeting procedural requirements and deadlines

5.

Preparing witness to testify at the appropriate time during the trial a.

B.

6.

Preparing any trial exhibits

7.

Arranging to have necessary AV equipment for use at trial

Civil litigation 1.

Begins with: event that gave rise to legal action

2.

Ends with: a judgment a.

C.

Definition, “witnesses”: persons who will testify under oath at trial

Definition, “judgment”: court’s final decision regarding the rights and claims of the parties in the lawsuit

Pretrial settlements

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D.

1.

Definition, “settlement”: out-of-court resolution of the dispute –before case goes to trial

2.

Caution: throughout the pretrial phase of litigation, the attorney and paralegal must operate under the assumption that the case will go to trial!

Governing procedural rules 1.

2.

E.

Federal civil trial courts: Federal Rules of Civil Procedure a.

ALSO: local rules of the district

b.

ALSO: judge’s specific requirements

Texas civil trial courts: Texas Rules of Civil Procedure a.

ALSO: local rules of the county

b.

ALSO: judge’s specific requirements

**Sequence of pretrial events [see charts on PowerPoint slides] (ON FINAL) 1.

Dispute: accident, breach of contract, or other event occurs, giving rise to the dispute

2.

Consultation with attorney: injured party consults with attorney, and attorney and/or paralegal conduct initial interview of client; attorney and client sign retainer agreement

3.

Pre-suit investigation: firm conducts pre-suit investigation before filing the complaint/petition

4.

Filing of complaint/petition: firm files original complaint/petition with court clerk on behalf of plaintiff and pays appropriate filing fee

5.

Service of process on defendant: plaintiff ensures that defendant receives proper notice of the lawsuit by having defendant served (given) a copy of the complaint/petition + a summons/citation

6.

Filing of answer (or pre-answer motion): defendant (or defendant’s attorney) files answer or other written response to plaintiff’s original complaint/petition

7.

Discovery: the parties exchange and respond to formal requests for information and documentation relevant to the case

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8.

II.

Motion for summary judgment (if applicable): either party may, when warranted, file a motion asking the court to grant judgment in its favor without the need for a trial because the facts that entitle the party to win at trial are not disputed.

Pleadings A.

Overview 1.

Definition, “pleadings”: written statements filed by the plaintiff and the defendant that detail the facts, charges, and defenses involved in the litigation

2.

Pleadings consist of 2 basic types of documents: a.

b.

B.

Definition, “complaint” (or “petition”): pleading filed by a plaintiff that initiates the lawsuit, alleges one or more causes of action against the defendant, and specifies the remedy(ies) the plaintiff wants the court to impose (1)

Definition, “allegation”: an assertion, claim, or statement made by one party in a pleading that sets out what the party expects to prove to the court

(2)

Definition, “cause of action”: legal theory, supported by sufficient facts, that entitles the plaintiff to sue and recover against the defendant

Definition, “answer”: defendant’s response to the plaintiff’s complaint/petition

Sample Texas court petition (see PowerPoint slides) 1.

Caption a.

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Definition, “cause number” (or “file number” or “docket number”): to the case and note that number on the original and all copies

b. 2.

Identification of parties

3.

Jurisdictional allegations

4.

Venue allegations (optional)

5.

Facts: SEE PP

6.

Cause of action: SEE PP

7.

Damages

8.

Jury demand (if applicable)

9.

Conditions precedent: SEE PP

10.

Prayer: a.

C.

Definition, “docket”: SEE PP

Definition, “prayer”: SEE PP

Methods of filing court documents 1.

Paper filing a.

Normally not allowed by parties represented by attorneys

b.

What to deliver to court clerk’s office when paper filing:

c.

(1)

The original (double hole-punched at top) complaint/petition and at least 1 copy (sometimes local rules require more than one copy)

(3)

A firm check payable to the court clerk for the applicable filing fee (see clerk’s website for fee information

Upon receipt of complaint/petition, court clerk will: (1)

File stamp

(a) Definition, “file-stamp” (a/k/a “file-mark”): filing date and time on either the first or last page of the original and all copies

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(2)

Accept the filing fee

(3)

Cause number (b)

d. 2.

(4)

Assign the case to a particular judge or court

(5)

Retain the original complaint/petition for the court’s file

(6)

Return the file-stamped copy(ies) to the filer either in person or by mailing it back in the self-addressed, stamped envelope, along with a filing fee receipt

Sample file-stamped Texas petition [see PowerPoint slide]

Electronic filing (e-filing) a.

Definition, “electronic filing (e-filing) system”: online system that enables registered attorneys to file case documents with courts 24 hours a day, 7 days a week

b.

Almost all attorney-represented parties must e-file today.

c.

Registration requirement: Only registered attorneys and consenting, registered unrepresented parties may access a court’s e-filing system

d.

Required format for e-filed documents: PDF

e.

Requirement of redaction of private or confidential information: (1)

f.

D.

Definition “cause number” (a/k/a “case number” or “file number”): to the case and note that number on the original and all copies

Definition, “redaction”: marked out

Payment of filing fees online: filer pays any required filing fees electronically by credit card

Service of process 1.

Definition, “service of process”: formal delivery of the summons and complaint to a defendant

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2.

Definition, “summons” (in federal court) or “citation” (in Texas court): document served on a defendant, along with a copy of the complaint, informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time

3.

Example Texas court summons: [see PowerPoint slide]

4.

Methods of service of process

4.

5.

E.

a.

Personal service: hand-delivery to the defendant by any person who is (1) not a party and (2) at least 18 years of age

b.

Other methods allowed by law or court order: e.g., certified mail (allowed for corporations and insurance companies), taping suit papers to the defendant’s front door (if permitted by court order)

Return-of-service form a.

Definition, “return of service”: specifies the date, time, and method of service

b.

Example Texas return-of-service form: [see PowerPoint slide]

Service-related requirements vary from jurisdiction to jurisdiction.

Defendant’s response 1.

Deadline a.

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Deadline for defendant to file a written response to the complaint/ petition (1)

Federal court deadline (unless defendant waives service of summons): 21 days after the date service of process occurred

(2)

Texas court deadline: 10:00 a.m. on the Monday following the expiration of 20 days after the date service of process occurred

b.

Effect of failing to file a timely response: (1)

2.

3.

Definition, “default judgment”: judgment entered by a court against a party who has failed to appear in court to answer or defend against a claim that has been brought against him or her by another party

Defendant’s options regarding type of initial response to file a.

Answer (most common)

b.

Pre-answer motion: (normally requesting the court to dismiss the case immediately because of some technical or legal defect, such as improper service of process, a defect in plaintiff’s complaint/ petition, or the court’s lack of jurisdiction to hear the case)

Answer a.

Common contents (1)

Denials of untrue allegations in complaint/petition (a)

(2)

Additional requirement in federal court:

Definition, “affirmative defenses” (if applicable): reasons why the defendant should not be held liable to the plaintiff even if all the facts alleged in plaintiff’s complaint/petition are true

(3) Definition, “counterclaims” (if applicable): claims asserted by defendant against plaintiff for damages sustained in the same incident (4) Definition, “cross-claims” (if applicable): claims asserted by defendant against another defendant sued by plaintiff in the same case b.

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Example Texas court answer: [see PowerPoint slides] (1)

Definition, “general denial”:

(2)

How answers in federal court differ:

(3)

Definition, “certificate of service”:

4.

Pre-answer motion a.

Definition, “motion”: procedural request or other application presented by an attorney to the court on behalf of a client

b.

Definition, “motion to dismiss”: motion filed by the defendant asking the court to terminate the case immediately for a specified reason, such as (1) improper service, (2) lack of personal jurisdiction, or (3) the plaintiff’s failure to state a claim upon which relief (a remedy) can be granted Examples of grounds for motions to dismiss: (1) (2) (3)

c.

F.

(1)

Definition, “supporting affidavits”: sworn statements providing the factual bases for the motion

(2)

Definition, “memorandum of law” (or “brief”): document setting forth the rules of law on which the motion is based, along with arguments

Scheduling conference 1.

Definition, “scheduling conference”: to consult with the attorneys of both sides a.

2.

III.

Supporting documents often accompanying motions:

Purpose: to enable the court to manage the case efficiently and establish appropriate time restrictions given the facts and circumstances of the case

Definition, “scheduling order”: order that sets out (1) the various deadlines by which pretrial events (e.g., pleadings, discovery, final pretrial conference) must be completed and (2) commonly the trial date also

Traditional discovery tools A.

Overview

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B.

1.

Definition, “discovery”: formal investigation of parties to a lawsuit before trial to obtain information from each other and from non-party witnesses to prepare for trial

2.

Permissible formal discovery methods: a.

Interrogatories

b.

Depositions

c.

Requests for physical or mental examination

d.

Request for admission

e.

Request for production

Purposes of discovery: 1. To preserve evidence from witnesses who might not be available at the time of trial or whose memories will fade as time passes 2. To lead possibly to an out-of-court settlement if one party decides that the opponent’s case is too strong to challenge 3. To prevent surprises at trial by giving parties access to evidence that might otherwise be hidden 4. To narrow the issues so that trial time is spent on the main question of the case

C.

Governing rules: 1.

Rules governing discovery: a.

In federal courts: Federal Rules of Civil Procedure (1)

b.

In Texas courts: Texas Rules of Civil Procedure (1)

2.

Other possibly applicable rules: local rules and judge’s requirements

Other possibly applicable rules: local rules and judge’s requirements

What discovery rules do:

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a.

Help prevent “trial by ambush”: hiding relevant evidence or the identities of key witnesses until trial

b.

Establish permissible scope of discovery: specify types of information and evidence a party can legitimately request and obtain from another party

c.

Establish protocols for properly resisting: (1) Requests for irrelevant or privileged info and materials (2) Requests that are harassing or unduly burdensome to comply with

D.

Interrogatories 1.

2.

E.

Propounding interrogatories a.

Definition, “interrogatories”: series of written questions prepared by one party to a lawsuit and direct to another party who is to provide written answers signed under oath

b.

May interrogatories be directed to nonparties? NO

c.

Limit on number of interrogatories: established by applicable rules of procedure

d.

Example interrogatories: [see PowerPoint slide]

Answering interrogatories a.

Required form of answers and deadline: 30 days from date of service

b.

Who normally assists in drafting answers: attorney/paralegal

Depositions 1.

Overview a.

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Definition, “deposition”: recorded pretrial question-and-answer proceeding, usually conducted orally, in which witness answers an attorney’s questions under oath

2.

b.

Definition, “deponent”: party or witness who testifies under oath during a deposition

c.

May depositions be taken of nonparties? YES

d.

Questioning of witness Usually in-person session

(2)

Questioning attorney can ask follow-up questions immediately

Procedure for taking deposition a.

b.

3.

(1)

Noticing the deposition (1)

Definition, “notice of intent to take oral deposition” (a/k/a “notice of taking deposition”): states time and place of deposition and name of despondent

(2)

Some local rules may require court permission before noticing a deposition.

Subpoenas to nonparties (1)

Definition, “subpoena”: doc commanding a person to appear at a certain time/place to give testimony concerning a certain matter

(2)

Definition, “subpoena duces tecum”: subpoena that also commands the person to bring specified docs or other tangible things to the deposition

(3)

Signature on subpoena: ATTORNEY

Drafting deposition questions a.

Who may ask questions and object on the record at the deposition: ATTORNEY Can paralegals do so? NO

b.

Paralegals often assist in drafting deposition questions by: (1) Drafting questions

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(2) Attending depositions (3) Preparing client 4.

Deposition transcript a.

Definition, “deposition transcript”: official transcript of the recording taken during deposition

b.

Permissible methods of recording depositions in federal court: (1) Stenographic recording (2) Digital audio recording (3) Digital video recording (4) Some combination of all methods

5.

a.

Sample excerpts from a deposition transcript: [see PowerPoint slides]

d.

Use of transcript for impeachment purposes at trial: (1)

Definition, “impeach”: to call into question the credibility of a witness by challenging the truth or accuracy or his or her trial statement

(2)

Details on transcript: SEE PP

Indexing the deposition transcript a.

b. Study and Note-Taking Guide – Chapter 10 LGLA 1307 – Fall 2017 Page 12

Definition, “indexing the deposition transcript”: listing the topics covered by the deposition and, for each topic, listing the pages and line numbers where the testimony relating to that topic appears (1)

Often performed by paralegals

(2)

Normal format: sequential (chronological)

(3)

Information the index includes: page and line #s of transcript where full text of testimony appears

Example of deposition index: [see PowerPoint slide]

F.

Requests for production 1.

Definition, “requests for production”: requests directed to a party or nonparty to furnish specified documents or other tangible things that are relevant to the lawsuit

2.

May these requests be directed to a nonparty? YES a.

3. G.

H.

IV.

To be enforceable by the court, requests to a nonparty must be accompanied by what additional document? Subpoena duces tecum

Examples of requests for production: [see PowerPoint slide]

Requests for physical o...