CIVIL LITIGATION

WITH ELISABETH MCKECHNIE

Civil Litigation Timeline

Precipitating Event Action Filed

Statute of Limitations runs Defendant(s)

Answer or

Service of Process on file motion

Defendant(s)

Statute of Limitations begins

to run

Civil Litigation Timeline

Discovery continues: Status Conf. Discovery Trial Post-trial

i.e. Interrogatories Sent to non-binding cut off Motions or

Depositions Arbitration Appeal

Expert Witnesses

hired/deposed

Attys further research case

Case over

You Are Given An Assignment

You are asked to examine a personal injury

Complaint recently filed in Sacramento County, CA

and personally served on your client, alleging that

your client (Def. driver) drove with a .08 blood

alcohol, causing an accident which injured Plaintiff. In

the police report P admits he knew D was drunk

when he chose to be his passenger. You are to

prepare a draft Answer. Look for defects in the

complaint and suggest affirmative defenses which

may be raised, including Assumption of Risk.

OKAY, I’VE GOT THE

ASSIGNMENT.

WHAT DO I DO NOW?

Don’t Panic!!!

You are asked to examine a personal injury

Complaint recently filed in Sacramento

County,CA and personally served on your client,

alleging that your client (Defendant driver) drove

with a .08 blood alcohol, causing an accident

which injured Plaintiff. In the police report P

admits he knew D was drunk when he chose to

be his passenger. You are to prepare a draft

Answer. Look for defects in the complaint and

suggest affirmative defenses which may be

raised, including Assumption of Risk.

What is Asked of YOU?

Look at Your Assignment

Read the Complaint-

And Take Notes!

Spot issues:

Was your client served properly? POS

attached?

When is response due? i.e. Answer/Motion

Educate yourself about the elements of each

Cause of Action. Were they pled properly?

Research any cases/laws cited.

Are there any defects in the Complaint? DOI?

FILED TIMELY? CORRECT VENUE?

Any other obvious flaws?

Questions You’ll Ask Yourself…

What does an Answer look like?

What’s an Affirmative Defense? Where do I

find that?

How do I find Assumption of the Risk?

What about this idiot passenger who drives

with a drunk?

I think I remember studying

something like this, but I don’t

remember a word….

Hit the Books

Educate Yourself

with a Treatise:

Practice

Manual or

Legal

Encyclopedia

So…What’s a Book?

And Why Should I Use it?

Books are Cheaper

WEXIS--FLAT RATE ISN’T FREE

Overuse Flat Rate this year, next year price

goes up.

Per Search Rate can be pricey if you don’t

have a strategy.

BOOKS ALREADY IN THE LIBRARY—are

FREE **You don’t have to bill your client!

BOOK with a good index is FASTER than a

bad keyword search

Some Types

of Research Materials

Witkin: Summary of California Law

35 volume Integrated Library of the Law

(aka, an Encyclopedia)

Rutter: Civil Procedure Before Trial

California Affirmative Defenses

Practice Manuals

California Forms of Pleading & Practice

Forms Manual

USE THE INDEX!!!

GREAT WAY TO FIND THINGS

IN A TREATISE (Online or Off)?

FINDING IT IN WITKIN WITH

THE INDEX

For Example: Assumption of the

Risk

FOR EXAMPLE—

SEE RUTTER GROUP

Rutter Group Personal Injury Hbk

OTHER RESOURCES

So…Where Else Can I Go?

California Codes—Index— “Limitations” or

“Statute of Limitations”

California Affirmative Defenses (West)

Causes of Action, 2d (West)[not CA specific]

CA Forms of Pleading and Practice (Lexis)—

“Answer” chapter

CEB Action Guide—Responding to a

Complaint or Cross-Complaint, Evaluating

Your Options

USING JURY INSTRUCTIONS

TO FIND BLACK LETTER LAW

CACI---http://www.courts.ca.gov/partners/317.htm

FORM BOOKS-

PREPARING MOTIONS

Like a Cookbook-Only Legal

Using Form Books

A Good Form Book has:

1. Forms

2. Instructions on how to prepare forms.

3. Advice on deadlines

4. A check-list or timeline

5. Discussion of the law pertinent to your

form.

CA Forms of Pleading &

Practice-Yes, the INDEX

RULES, RULES, RULES

RULES TO PRACTICE LAW

BY

CALIFORNIA CODE OF CIVIL

PROCEDURE

CALIFORNIA RULES OF COURT

COUNTY COURT LOCAL RULES

FRCP AND LOCAL RULES

California Code of Civil Procedure

California Rules of Court

Chapter 1. Papers 20

Rule 2.100. Form and format of papers presented for filing in the trial courts

Rule 2.101. Use of recycled paper; certification by attorney or party

Rule 2.102. One-sided paper

Rule 2.103. Quality, color, and size of paper

Rule 2.104. Printing; type size

Rule 2.105. Type style

Rule 2.106. Color of print

Rule 2.107. Margins

Rule 2.108. Spacing and numbering of lines

Rule 2.109. Page numbering

Rule 2.110. Footer

Rule 2.111. Format of first page

Rule 2.112. Separate causes of action, counts, and defenses

Rule 2.113. Binding

Rule 2.114. Exhibits

Rule 2.115. Hole punching …………(And yes, there’s more!)

Local Rules: Sacramento County

Rule 2.01. Mandatory Civil Local Forms

Rule 2.02. Civil Filings

Rule 2.03. Self-Addressed Stamped Envelopes

Rule 2.04. Appearance by Telephone

Rule 2.05. Multiple Departments with Similar Proceedings

Rule 2.06. Motions to Compel Entry of Judgment. Orders After Hearing

Rule 2.07. Orders After Hearing

Rule 2.08. Substitution or Association of Attorneys or of Party In Pro Per

Rule 2.09. Joining Motions of Other Parties

Rule 2.10. Examination of Judgment Debtors, Garnishees, and Others Noticed for Appearance at

the Main Downtown Courthouse

Rule 2.11. Motions to Continue Trial Date

Rule 2.12. Trial Judge Motions

Rule 2.13. Attorney's Fees in Residential Unlawful Detainer Actions

Rule 2.14. Attorney's Fees in Actions on Promissory Notes, Contracts Providing for Payment of

Attorney's Fees, and Foreclosures; Attorney's Fee Schedule

Rule 2.15. Form of Judgment

Rule 2.16. Motion to Tax Costs

Rule 2.17. Stipulated Judgment Form to be Separate from Stipulation

Rule 2.18. Appeal from Decision of Labor Commissioner under Labor Code Section 98.2

Rule 2.19. Petition for Name Changes

California Federal Court—

Local Rules Central District, California Federal Rules of Court Local

Rule 11-3

L.R. 11-3.9.3 Cases. Initial citation of any United

States Supreme Court case shall include parallel

citations to United States Reports, Lawyer's Edition,

and Supreme Court Reporter. Federal Reporter,

Federal Supplement or Federal Rules Decisions

citations shall be used where available. Initial state

court citations shall include both the official reports

and any regional reporter published by West

Publishing Company. California parallel citations may

be limited to the official reports and California

Reporter.

Why do I care about

the Rules?

Rules: What Happens

If You Don’t Follow Them?

2.00 Sanctions.

If any counsel, party, person or entity subject to these

rules, fails to comply with any part thereof, the court

on motion of a party or on its own motion may strike

out all or any part of any pleading of that party, or,

dismiss the action or proceeding or any part thereof,

or enter a judgment by default against that party, or

impose other penalties of a lesser nature as

otherwise provided by law, and may order that the

offending attorney, party, person or entity pay

reasonable costs, including attorney fees, to the court

and to other participants. (Sac. Co. Local Rules)

You Should Also Care…

BECAUSE OF

LINDSAY LOHAN….

Sacramento Bee, March 2, 2013

A Los Angeles judge refused Friday to delay

Lindsay Lohan’s trial on reckless driving and

other charges…Superior Court Judge James

R. Dabney advised New York lawyer Mark

Heller that his pleadings weren’t appropriate

under California law…Heller was told to get

assistance from another attorney or Lohan

would be required to attend hearings to

gauge his ability to represent her…

ORGANIZING THE WORK

Sample Research Form/

Tracking Multiple Projects Legal Research Task Form

Date of Incident:___4/1/2009______________________________

Client/Matter Number:____13-0145___________________

Date Project Received:____________6/1/13 5:00 P.M.___

Project Received From:_____________SR. PARTNER__

Project Due Date:___6/2/13 8 A.M MUST BE FILED 6/3

Project Format (i.e. e-mail, memo, etc.):___Draft Answer________

Question/Issues Presented: Examine Complaint, draft Answer w/ aff defenses

Jurisdiction: ___CA State, Sac County Superior____________________

Key Search Terms: __”assumption of risk”, negligence, duty: driver, passenger

Cost Restraints:_____KEEP IT CHEAP_____________________________

Amt. of Time Allowed to Spend on Project:____<3 BILLABLE_______

Number of other projects already pending:________4__________

Any Experts in Firm Who Can Help:____NOBODY HERE BUT ME TONITE_

List of Sources I’ve used (include database names for Lexis/Westlaw): Google,

“assumption of risk” in WL Next ALL-US_______________

Doing Online Searches?

Write down your search terms and sources so

you don’t repeat your searches.

How do I know when I’m done?

When you keep running into the same things.

CITATION

California Style Manual

http://www.sdap.org/downloads/Style-

Manual.pdf

It’s Polite (and Good Practice)

to Parallel Cite And often required by Local Rules (check to

be sure if you’re preparing a pleading):

•All citations to Acts of Congress must include a parallel citation to the

United States Code by title and section [CD Cal Civ LR 11-3.9.1]…

•The initial citation of any United States Supreme Court case must

include parallel citations to the United States Reports, Lawyer’s Edition,

and Supreme Court Reporter. Federal Reporter, Federal Supplement,

or Federal Rules Decisions citations must be used when available.

Initial state court citations must include both the official reports and any

regional reporter published, but California parallel citations may be

limited to the official reports and California Reporter [CD Cal Civ LR 11-

3.9.3]. (Bender Federal Practice Guide re rules for Federal Central

District of California)

A Last Word…

This summer you will have access to your

accounts in:

Bloomberg and

LexisAdvance

If you need training in Lexis, call me. If you

need Bloomberg training, contact the law

librarians.

Questions?