PARA 84 TRIAL PREP STUDY GUIDE

CHAPTER ONE

Symbols Party

o One side of the v or the other Courts:

o State: trial, court of appeal (disctrict); supremeo Fed: trial (district); court of appeal (circuit); supremeo Trial courts have ‘original jurisdiction’ – where the case originateso Appellate courts do not; they only hear cases, and issues, that come from lower

courts Judgment

o Courts ultimate determination of parties rights, duties, liability, guilt. Civil v. Criminal

o Punishment…o Tort v. breach

Remedieso Legalo Equitable

Common lawo That which we brought over from Englando Judge made law

Substantive lawo The laws themselves: what conduct is proscribed; what are the elements of a

prima facie case Procedural law:

o How the laws are carried out; Evidence

o That which makes the existence or non-existence of a fact more or less likelyo Rules of evidence govern what comes in to trial, and howo The rules are dictated by the procedural law

Claimo The assertion of an existing right

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o Any right to payment or an equitable remedyo A demand for money/property to which one asserts a righto If the court recognizes the claim, it is considered actionable

Complainto Starts a civil actiono Must meet pleading rules for format as well as contento Must state, with specificity, what legal rights of the plaintiff were violated

Summonso Notice that a civil action has been commencedo Processo Service of process

Subpoena o An order for an individual to appear before a courto SDT

Answero Response to a complainto Must admit or deny specifics of the complainto The problem with general denials

Actiono Once a specific claim has been recognized by the courts;o The case now “lies”o Cause of action: a claim for which the courts may grant relief

Jurisdictiono The power and authority of a courto Geographyo In personamo In rem

Questions of law and facto Questions of law are for the judge: is it defamation?o Questions of fact are for the jury (fact finder): did this ∆ defame this π?

Case Endso Dismissal

case is terminated: can be for more reasons that just rule 41o general verdict

jury finds in favor of π or ∆;o special verdict

jury responds to specific questions re case

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o liable or guilty… Fraud Negligence Remedies: specific

o Enjoin: stop activity; abate a conditiono Injunction

Prohibitory: Court order prohibiting some activity Mandatory: Mandates an affirmative act

o Restraining order TRO

o Damages: Compensatory:

To compensate for personal injury or property loss Punitive To punish Nominal

o Declaratory judgment Action to obtain…

Assignment Subrogation

o Substitution whereby one party stands in the shoes of another π Tortfeasor Necessary party

o One without whom the resolution of the case would not be complete Contribution

o Relative amounts paid by ∆s who are jointly liable Guardian ad litem

o Juvenile… No cause splitting Counterclaim

o Transaction or occurrance Breach Assault Battery Strict liability

o Torto Criminal

Vicarious liability

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Res judicatao Claim preclusion

Collateral estoppelo Issue preclusion

Ch 3

Personal JXo In personamo In rem

To adjudicate the rights of all persons in the world in re to a piece of property

o Quasi in rem: Whether a given individual .. Not anyone else

o Long arm statutes Minimum contact Stream of commerce

Foreseeability

Federal JXo SMJ: cases that arise under the constitution, treaties and federal lawso Between two or more stateso To interpret state laws against US Const

Diversity Jurisdiction:o Citizens of different states; 75K

Venueo Place…

Writ of certiorari Juries

o Right: both federal and state, with money and amount (to request: waived if not requested, and many limitations)

o Not for equitableo Petit and grando Jury poolo Size of petit: book is overstating/wrong

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o Voir dire

Ch 4

Cause of actiono A legal theory of a lawsuito Book error:

P 79: The definition there is only of a negligence claim; there are plenty of deliberate torts as well

Claim/cause of action must provide a basis for the lawsuit; every element of claim must be met

o If one element is missing; FRE rule 12(b) applies: Complaint fails to state a claim for which relief can be granted

o All causes of action have remedies Affirmative defenses

o Not necessary, but if asserting, must put in answero Raises new facts or arguments that will defeat π’s claim, even if allegations are

true Ex:

Duress, contributory negligence Insanity, self defense

Breach of Contracto Hadley Rule:

Damages recoverable are those that naturally and generally result from the breach;

Where there are special circumstances, damages which result in consequence of the special circumstances, are recoverable, if and only if, the special circumstances were communicated to or known by both parties at the time they entered into the K

o Damages must be: Foreseeable; Reasonably certain; Not have been preventable by injured party

o Complaint must demonstrate that K elements existed Know them Void/Voidable SOF

Specific performanceo $ will not do;

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o Item must be unique;o Party must perform as per the terms of the agreemento Personal services limitation

Trespasso An unlawful act committed against the person or property of anothero Land

Necessity o Chattels/ conversion

Causationo Standards of proofo Proximate and direct are interchangeable

Foreseeability General consequences Superseding intervening forces Egg-shell π: need not be foreseeable

o But for Life preserver; shark Speeding car: was it the speed?

o Substantial factor ∆’s materially contributed to π’s injury Two fires, one on each side of the house

o Shifting the burden Summers v. Tice

The wrong hunting buddieso Joint Liabilityo JSL

Comparative Fault/ Contributory negligenceo Mitigation is after wrongo Contributory negligence

Negligence on the part of π that contributes to her injuries At CL: completely barred recovery Now, all JS’s use Comparative Negligence

Trier of fact weighs π’s negligence and reduces recovery accordingly

Partial:o Bars recovery if π’s fault greater than ∆’s

Pure:

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o Allows recovery no matter percentage of π’s fault\ CA is a pure Comparative Fault (contributory negligence) state

Ch 5

Pleading affirmative defenses

A short plain statement of the facts on which the defense is based If new facts, time and place of must be pleaded Π is not required to respond to affirmative defenses, but must answer a cross

complaint

Selected affirmative defenses

Accord and satisfaction Statute of limitations

o Knowledge of injuryo Minor

Lacheso Prejudice to ∆

Assumption of risko Injury was result of the danger apparent to πo Π voluntarily assumed the risk’o Injury resulted from same risk

Estoppelo A bar to claim that contradicts a former statement or that which has bneen

legally established as trueo A bar that prevents the re-litigation of issueso Equitable estoppel

The one your book calls estoppel Prevents one party from collecting damages when that party has induced

the other into action and that action led to injury Consent

Procedural affirmative defenses

Insufficiency of process Absence of necessary party Res judicata Collateral estoppel

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Ch 6

Elements of a complaint:o Clearly describe all of π’s claims

Summonso Use court form

Title of action (Smith v. Barney) Court’s name ∆’s address Π’s attorney’s contact info

If pro-per, your own o Summons is filed with the clerk of the court

If proper, clerk stamps and summons is now official Clerk checks for format, not sufficiency A summons is not a pleading

o Summons must be served on ∆ Any competent adult, not a party to the action In CA

Personal delivery Substituted delivery

o Left with specific individuals at authorized locations; follow with mailing)

By mail By publication

o Return of service Completed by party who served the summons and complaint Filled out after service;

o Summons directs ∆ to serve an answer within a deadline Fed

21 days CA: 30 days from date of service of process to file an answer

Failure = default Commenced

o Action is commenced with the filing of summons and complainto This is the line for SOL

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Pleadingo Fed = Notice pleadingo CA = fact pleadingo Difference = CA requires more specificity

Pre-answer motiono Fed: 12(b)o CA:

General demurrer Parallel to fed 12(b)(1) and (6) Will be same for Judgment on the Pleadings

Specific demurrer Multiple grounds: basically saying the complaint is flawed in some

way If challenging JX; must plead that before the answer… Motion to strike

Answero Not denied is assumed admittedo General denials do not worko ∆ denies all..except as hereinafter expressly admittedo Denials need not be consistent

∆ denies a K exists If a K exists, ∆ alleges material breach by π Pregnant denial

A negative pregnant (sometimes called a pregnant denial) refers to a denial which implies its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. For example, "I have never consumed cocaine while on duty" might imply that the person making the statement had consumed cocaine on other occasions, and was only denying that they had done so while on duty.

o Amended answer 20 days by right; more time by stip or order

Motion defenseso Motions: Paralegals can write; attorneys signo An application to the court for an order

In writing State with particularity the grounds Set for the relief sought

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Counterclaimso Served with the answero Compulsory

Same set of operative facto Permissive

Different facts Cross-claims

o Multiple defendants Third party practice

o Defendants sues another party for contribution or indemnity Class actions

o Class too large foro Common questions of law and facto Parties named represent the class

Ch 7

Discoveryo Procedures by which the parties obtain evidence from each other by court ruleso Reciprocalo Brady

Scheduling conferenceo Court ordered conference to establish schedule for trial dates

Discovery conferenceo Parties meet before scheduling conference to narrow down issues for trial

Discovery plano Agreements for initial disclosureso Initial disclosures

Witnesses; those that will be called at trial Documents; what and how to obtain Compilation of damages Expert witnesses who will be called at trial; reports on which they will

rely

Ch 8

Evidence: System of rules by which admission of proof is regulated

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Threshold admissibility issues:o Material, relevant evidence is admitted, if competent

Material: What is the proposition to be proved: i.e. the COA or the defense What is this piece of evidence offered to prove? It must pertain to the COA or an allowable defense

Competent Is competent if it does not violate an exclusionary rule Why exclude?

o Truth seeking Hearsay Best evidence rule

Original documents ruleo Societal interests

Privileges protections

Relevanceo Big issueo Look first to probativeness: does it contribute to proving or disproving a material

issue: “does the evidence tend to make the issue (material proposition) more

probably true or untrue than without the evidence:o So, combining probativeness with materiality:

Negligent driving case: did ∆ drive recklessly on a previous occasion? This fact may well be material, but it is not probative, b/c it does

not answer whether or not the ∆ drove recklessly on this occasion, so it is not relevant.

o The two part question: 1: is the fact sought to be proved in issue under the pleadings; 2: does the evidence help to prove the fact for which it is offered

Types of evidence:o Demonstrative

To illustrate testimony Maps, charts…

o Real Things, as opposed to assertions about things

Knives, guns, maps..o Documentary

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Writings K Written confession

o Direct Goes directly to a material issue without intervention of an inferential

process When facts in dispute are communicated those with actual

knowledgeo I saw Bob kill Kevino Snow covered bridge: did a man walk on it?

I saw a man walk on the bridgeo Circumstantial

Indirect, relies on inference Evidence of some fact, or set of facts, from which, alone or in

conjunction with other facts, the existence of a material issue can be inferred

o Did a man walk on a snow covered bridge? I saw human footprints in the snow on the bridge

Admissibilityo Goal is always truth; not only goal though

Rights Privileges Protections

o Varies for criminal and civilo For one purpose and not another

Impeachment ∆ takes stand Defense witness

Against one party but not another Who can assert violation?

o Jury instructed Un-ringing a bell

Substitutes for evidenceo Judicial noticeo Stipulations

Discretion of the courto Does probative value outweigh prejudice; vice versa

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Burdens of proofo Burden of producing (going forward; production)

Produce sufficient evidence to raise fact question for the jury To overcome SJM; judgment as a matter of law

Prima facie case After π’s case, ∆ moves for M of Law; denied: π has made PF case;

met burden of going forward Hearsay intro

o An out of court statement, offered into evidence, to prove the truth of the matter asserted

o Rationale Party against whom testimony is offered has a (constitutional) right to

cross examine the declarant To test:

o perceptiono Memoryo Articulatenesso Veracity

Contemporaneous cross examination The witness could be offering his own statement:

o I do not remember the accident, but I remember saying to my wife: wow, what a crash – the red car ran the light

o Statement was out of court, is for the proof, and its content cannot be challenged

o Truth of matter asserted: Witness testifies: “on April 2nd, Debbie said to me, ‘I was in Buffalo

yesterday” If issue is whether Debbie was in Buffalo on the 1st, it is hearsay; If issue is whether Debbie was able to speak on the April 2nd, it is NOT

hearsay. Laying a foundation

o Evidence or testimony that establishes the admissibility of other evidence Admissible evidence

o Tendency to prove or disprove a relevant fact and not barred by rules of evidence

Expert witness testimonyo Special education, training, OR experience; opinion would help jury to

understand evidence

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Expert witness and opinion evidenceo Opinion testimony, lay witness

Default position: inadmissible But, opinion reputation, when allowed, and, simple things that most

people can assess, if: Based on the witnesses perception Helpful to the trier of fact Not based on scientific, technical or specialized knowledge

Generally admissible lay opinion: General condition: old, strong, ill; but not diabetic, senile State of emotion; angry, joking; not “in love” Matters involving sense recognition:

o Heavy, red, bulky Voice or handwriting recognition, if foundation laid to show prior

familiarity Speed of moving object: even MPH Value of own services Rationality of another’s conduct: dude’s insane Intoxication

Inadmissible lay opinion Conclusions as to agency Conclusions as to K’s

o Can be asked about facts surrounding both Subsequent Repair Rule

o Subsequent Remedial Measure FRE 407 If to show negligence or culpable conduct, is excluded Can show: ownership, control, feasibility of measures, impeachment

o Must be post event changes; not just post saleo Strict liability cases

In CA: rule does not apply; meaning: SRM are allowed to show culpability FED: rules applies to exclude evidence even in SL cases

Offers to compromise FRE 408o Evidence of is excludedo Covers all offers made in the course of negotiationso Dispute requirement

Can be fatal

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If I agree that I owe N, but say: you aint gonna get N b/c trial is expensive: take ½ of N and go away; 408 does not apply

Also, timing: statements made prior to dispute are not coveredo If I crash into another driver and say: sorry, my fault, I will

pay for everything; those statements are not excluded – no dispute exists yet

o BUT: if I am in an accident, and say: dumbass! You crashed into me; he says: nonsense, you were at fault..

Now we have a dispute, and any agreement between us from that point is excluded under 408

Best evidence Rule FRE 1001-1008 (original writings rule)o To prove contents of a writing, original must be provided, unless exception

applieso Applies to

Writings Recordings Photographs

Ch 11

Interrogatorieso Written questions; oath; form and special

Special: 35 without leave; more with declaration and leaveo Proponent: requesting party;o RESPONDENT …o Timing

Π: any time with or after compliant CA 10 days after complaint

∆: any time after receiving complaint 30 days to respond

o Objections to Rogs can challenged Privilege, work product, undue burden… Also: if info is equally available to both parties

Ch 12

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Read chapter 13 on your own

DEPOSITIONS

Oral depo of witness, including a party witness Use

o To impeach when deponent becomes a witnesso Any reason if deponent is dead or unavailable

Fed: 100 miles CA: 150 miles

Right to attendo Every party has right to attend every depo, with counselo But, keeping some parties out is important

Court order that other potential witnesses be barred from attending Testamentary deposition

o For using recorded testimony in place of deponent’s live testimo y at trial Sanctions

o For failing to showo For obfuscatingo Unmeritorious objections

Documents brought to and used at a depo are marked for identification and attached to the tx

Scopeo Broader than trial examinationo Any matter that reasonably could lead to the discovery of admissible evidence

READ PAGE 316-17o Objections

Not ruled on at depo; they are marked Preserving the record

Deponent can refuse to answers, but there must be a valid reason Or, deponent can answer “subject to objection” ; decided later by judge

Page 321: Deposition Errata sheeto Line-up inconsistencies

Recorded depositionso In CA, we use court reporters and transcripts

Using depo at trialo If witness unavailable:

Depo tx is read into record

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If witness testifies; depo can be used to impeach Must subpoena non-parties

o Depo notice to partieso Subpoena grants JX over non-parties

Summarieso No rule re format, but for trial and for general use will tend to look differento Read appendices 1 and 2 and end of chapter 12

Testamentary Depositiono Don’t get hung-up on nameo If you know witness will not be available, it is testamentary when you take the

depo;o If you find out after the depo that the witness is unavailable, it becomes a

testamentary depo

Ch 14

Placing medical/health in issue requires that one submit to a med examo What does exist of a Dr./Patient confidentiality is killed when health ‘put in issue’

Proponent must still move court for order (or stipulate)o Court can impose limitations on ordero Proponent chooses Dr. with court approvalo Examinee may demand copies, but then must provide same from own Dr.

Why?o Treating physician knows patient

Was patient open and honest Did Dr. properly consider pre-existing conditions Did π recite accident accurately Is the treating Dr. an expert

How?o Must show good cause: usually not hard

May require more than one: i.e. head and eyes But, with Mult ∆’s, court is unlikely to grant every ∆’s request for a

different Dr.o Does not have to be an MD

Chiro

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Osteopath Psychologist

Treating physiciano Not expected to establish π’s claim o Examinee’s statements are all accepted as exceptions to hearsay

Examining physiciano Dr Shopping happenso Should be more skeptical than treating physo Should look for medical improbabilitieso Should not treat or recommend treatmento Subjective symptoms supported by objective medical findings

Ch 17 (end at p 479)

Motion:o An application to the court for a specific ruling or ordero Motions are both written and oral

Written motionso Assume that it is a noticed motion

Notice to other parties; not ex-parteo Notice: the first pageo Caption

Has what the motion is and usually its legal basis: i.e: per CCP § 1363.1 “Plaintiff’s Notice of Motion and Motion to Supress Evidence (Pen C

§1538.5)” Date Time Department

o 1st paragraph If it is criminal court:

TO THE DISTRICT ATTORNEY OF * COUNTY AND/OR HIS REPRESENTATIVE:

PLEASE TAKE NOTICE THAT ON….the Defendant will move for an order suppressing the statements made by Defendant to members of law enforcement….

Same paragraph, state the grounds more speficallyo New Page

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Memorandum of Points and Authorities (centered, bold, underlined) Statement of Fact (also CBU)

Depends what you are working with ARGUMENT (CBU)

Headings: should read as a sentence, and let the reader know exactly what the section will argue

Align and distinguish case law; Use codes to your advantage; address why others do not/should

not applyo Declarations

At least the attorney, sometimes the parties Ex parte

o To judge alone Motion for judgment on the pleadings

o From what has been filed thus faro Based on defect or insufficiency

Motion to strikeo Parts of a complaint

Motions in limineo Very importanto Made as you are approaching trialo Admissibility of evidence and procedural ruleso What can and cannot be addressed and put before the jury

Summary judgmento Π” 20 days after commencement of action: CA – 60 after; 75 before

But; usually not until discovery has at least begun ∆: any time after service

o When there is no dispute concerning any material fact Material = has an impact on the decision

o No oral testimony Would create mini-trial

o Stipulations Used as conclusive; but, Conditional stips are allowed

o In CA A statement of undisputed facts must be filed with MSJ

o Pg 473: talks about SJ for a land K Is oversimplified

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o SJ and negligence actions Usually problematic, b/c negligence is typically a question of fact But, legal duty is typically a matter of law Why our case does not fall in this arena

o SJ and expert testimony When necessary (Med Mal), lack of can give opposition SJ

o Partial SJ In CA: Summ Adju

Opposing SJo Must be allowed timeo May need to gather information

i.e.: the employment contracts from ∆o state by affidavit (declaration) what is needed and time is grantedo must present documentary evidence that a fact dispute exists

Ch 18

case analysiso getting thoughts and plan in order, written downo process:

read list from 500-501 trial notebooks

o organized reference trial schedule (good programs- use them) directory: keep up to date accurate pleadings witness list exhibit list motions voir dire Q’s opening statement! Investigative notes Memorandum of law (broad) Examination Q’s

Direct Cross

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Jury instuctions HUGE Compensating witnesses

o Lay: Expenses incurred coming and going; Mileage Parking Meals Lodging Time off work Cannot pay for testimony

o Expert Experts can charge for services: testimony Credibility and contingency fees

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