pgl 213 civil lit systems folder 3 jt

Ch.3, SF #3

Julia Trimble

PGL 213, Civil Litigation 1

Systems Folder, Part 3

February 27, 2016

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Table of Contents

Quick Reference Information

I. Preliminary and frequently used information

A. Office structure and procedure 7

1. Office structure chart 8

2. Timekeeping forms and procedure 11

3. Deadline control forms and procedure 14

B. General Information

1. Court structure, names, addresses, and phone numbers for clerks of court and other

persons frequently contacted 24

2. Time deadline chart/rules and formula for computing time 12-14

3. Statutes of limitations

4. Case roadmap 40

5. Ethics 18

6. Professional organization information 24

Interview

I. Client Interview

A. Task and Purpose 44

B. Interview Plan

1. Interview and plan checklist 44

2. Steps in interview plan 44-68

a. Interview forms and checklists 45-56

b. List of information for client to bring to interview 59

c. Appointment confirmation letter 61

d. List of ethical considerations 60

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e. List of interview techniques 62

f. Checklist of information to be given client at initial interview 64

g. Fee arrangement 66

h. Release of information forms (HIPAA) 65, 69

i. Checklist for preparing interview site 68

j. Sample interview summary 70

Investigation

I. Investigation A. Purposes of investigation 81B. Quick guide to evidence 82-91C. Investigative sources, including Internet sources 92-100D. Sample investigation plan 92E. Ethical Applications to Investigation 103F. Medical information

1. List of available medical records 1062. Standardized request letter 1073. Authorization to disclose protected health information (HIPPA) 1084. Letter to doctor requesting medical summary/ follow up letter 109-110

G. Accident scene checklist 112-113H. Suggestions for locating experts 114I. Interviewing a witness 119

1. Witness information cover sheet 115-1162. Checklist for witness interview 1173. Description of how to create interview questions 1154. Checklist of considerations for conducting a witness interview 1195. Tips for taking and drafting an effective statement (illustrative statement) 122-

123J. Preserving evidence 125

1. Accident diagram and other forms 12-130,1322. Checklist 125-135

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Ch. 3, SF Assignment #1

(A) Purposes of Investigation

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1. To identify and locate the factual evidence that may be used by both sides to support or defeat each element of a cause of action.

2. To locate persons and property.3. To establish expert opinion evidence.4. To develop evidence to discredit (impeach) a witness or opponent.5. To determine if there is sufficient factual evidence to support or defend the cause of

action at trial or to form the basis for a settlement.6. To find additional evidence for trail.7. To preserve evidence for trail.8. To organize evidence for trail.

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(B) Quick Guide to Evidence

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Federal & Kentucky Rules of Evidence – Table of Contents

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope; Definitions – KRE Rule 101 (A)

Rule 102. Purpose – KRE Rule 102 (A)

Rule 103. Rulings on Evidence - KRE Rule 103 (A)

Rule 104. Preliminary Questions – KRE Rule104 (A)

Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes _ KRE Rule 105 (I)

Rule 106. Remainder of or Related Writings or Recorded Statements – KRE Rule 106 (A)

ARTICLE II. JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts – KRE Rule 201 (A)

ARTICLE III. PRESUMPTIONS IN CIVIL CASES

Rule 301. Presumptions in Civil Cases Generally – KRE Rule 301 (A)

Rule 302. Applying State Law to Presumptions in Civil Cases – KRE Rule 301 (A)

ARTICLE IV. RELEVANCE AND ITS LIMITS

Rule 401. Test for Relevant Evidence – KRE Rule 401 (A)

Rule 402. General Admissibility of Relevant Evidence – KRE Rule 402 (A)

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons – KRE Rule 403 (I)

Rule 404. Character Evidence; Crimes or Other Acts – KRE Rule 404 (I) (With exceptions of KRE Rule 404(1) (2) (3), (b) (1) (2).)

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Rule 405. Methods of Proving Character – KRE Rule 405 (I with exceptions)

Rule 406. Habit; Routine Practice – KRE Rule 406 (A)

Rule 407. Subsequent Remedial Measures – KRE Rule 407 (I)

Rule 408. Compromise Offers and Negotiations – KRE Rule 408 (I)

Rule 409. Offers to Pay Medical and Similar Expenses - KRE Rule 409 (I)

Rule 410. Pleas, Plea Discussions, and Related Statements – KRE Rule 410 (I)

Rule 411. Liability Insurance – KRE Rule 411 (I)

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition- KRE Rule 412 (I)

Rule 413. Similar Crimes in Sexual-Assault Cases – KRE Rule 412 (A)

Rule 414. Similar Crimes in Child Molestation Cases

Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

ARTICLE V. PRIVILEGES

Rule 501. Privilege in General – KRE Rule 501 (A)

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver – KRE Rule 503 (I, with exceptions)

ARTICLE VI. WITNESSES

Rule 601. Competency to Testify in General – KRE Rule 601(A)

Rule 602. Need for Personal Knowledge – KRE Rule 602 (I)

Rule 603. Oath or Affirmation to Testify Truthfully – KRE Rule 603 (A)

Rule 604. Interpreter – KRE Rule 604

Rule 605. Judge’s Competency as a Witness – KRE Rule 605 (I)

Rule 606. Juror’s Competency as a Witness –KRE Rule 606 (I)

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Rule 607. Who May Impeach a Witness - KRE Rule 607 (A)

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness – KRE Rule 608 (A)

Rule 609. Impeachment by Evidence of a Criminal Conviction – KRE Rule 609 (A, except under the provisions provided in (b) and (c).)

Rule 610. Religious Beliefs or Opinions – KRE Rule 610 (I)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence- KRE Rule 611

Rule 612. Writing Used to Refresh a Witness’s Memory – KRE Rule 612 (A)

Rule 613. Witness’s Prior Statement – KRE Rule 613 (A)

Rule 614. Court’s Calling or Examining a Witness – KRE Rule 614 (A)

Rule 615. Excluding Witnesses – KRE Rule 615 (A, with the exceptions of (1),(2), (3).)

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses – KRE Rule 701 (A, with stipulations.)

Rule 702. Testimony by Expert Witnesses – KRE Rule 702 (A)

Rule 703. Bases of an Expert’s Opinion Testimony - KRE Rule 703 (A)

Rule 704. Opinion on an Ultimate Issue – KRE Rule 704 not utilized

Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion – KRE Rule 705 (A)

Rule 706. Court-Appointed Expert Witnesses – KRE Rule 706 (A)

ARTICLE VIII. HEARSAY

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay – KRE Rule 801, KRE 801A (I)

Rule 802. The Rule Against Hearsay – KRE Rule 802 (I)

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Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness – KRE Rule 803(A)

Rule 804. Hearsay Exceptions; Declarant Unavailable – KRE Rule 804 (I)

Rule 805. Hearsay Within Hearsay – KRE Rule 805 (I)

Rule 806. Attacking and Supporting the Declarant’s Credibility – KRE Rule 806 (A)

Rule 807. Residual Exception

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule 901. Authenticating or Identifying Evidence – KRE Rule 901 (A)

Rule 902. Evidence That Is Self-Authenticating – KRE Rule 902 (A)

Rule 903. Subscribing Witness’s Testimony – KRE Rule 903 (A)

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions That Apply to This Article – KRE Rule 1001 (A)

Rule 1002. Requirement of the Original – KRE Rule 1002 (A)

Rule 1003. Admissibility of Duplicates – KRE Rule 1003 (A, with exception (1) and (2), provided in the rule.)

Rule 1004. Admissibility of Other Evidence of Content – KRE Rule 1004 (A)

Rule 1005. Copies of Public Records to Prove Content – KRE Rule 1005 (A)

Rule 1006. Summaries to Prove Content – KRE Rule 1006 (A)

Rule 1007. Testimony or Statement of a Party to Prove Content – KRE Rule 1007 (A)

Rule 1008. Functions of the Court and Jury – KRE Rule 1008 (A or I to be determined by the court)

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ARTICLE XI. MISCELLANEOUS RULES

Rule 1101. Applicability of the Rules – KRE Rule 1101 (A)

Rule 1102. Amendments – KRE Rule 1102 (A)

Rule 1103. Title – KRE Rule 1103 (A)

Note: Whenever a Rule involved procedure, I marked the rule (A); the reasoning for my doing so is that procedure can be challenged in litigation if a party disputes that it was followed.

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SF Assignment #3

(D) Sample Investigation Plan

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To: Paula Bascom

From: Julia Trimble

Case: Forrester v. Hart and Mercury Parcel Service,Inc.

Client: Ann Forrester

Date: 2-28-16

Investigation Plan

Facts

On February 26, Ann Forrester walked across Highway 328 in Columbia, on which her mailbox is located, to put a letter in the mailbox. The road had ice on it. Richard Hart was driving a van for Mercury Parcel Service, Inc.; whom he is employed by. Mr. Hart attempted to stop when he saw Mr. Forrester, but was unable to. He struck Ann Forrester with his van. Ann Forrester sustained injuries from the collision. Mrs. Forrester’s husband and children were waiting in the car for her return to the vehicle at the time of the collision.

Actions to take

Identify all witnesses to the accident and interview them. Interview Richard Hart. Interview Ann Forrester. Obtain the police report. Obtain Medical records. Gather client background information. Identify the weather conditions on the morning of February 26. Get pictures of the scene of the accident.

Substantive Facts

Identify facts and disputed, controlling issues. Identify possible defenses. Make note of any disputed facts that the opposing party may use in litigation.

Legal Issues

Duty of care Breach of duty Injury Damages Possible defenses Conditions that contributed to the accident

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Chapter 3, SF Assignment #4

(E) Ethical Applications to Investigation

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Ethical Applications to Investigation

Competent Representation

Model Rules of Prof’l Conduct R. 1.1 (2013)

Lawyer Diligence


Scope of Representation


Client Communications


Candid Advice


Advocate Candor

Model Rules of Prof’l Conduct R. 3.3(a) (d) (2013)

Fairness to Council

Model Rules of Prof’l Conduct R. 3.4(a) (b) (2013)

Fair Speaking

Model Rules of Prof’l Conduct R. 3.4(f) (2013)

Public Statements


Truthful Statements

Model Rules of Prof’l Conduct R. 4.1(a) (2013)

Respect Rights

Model Rules of Prof’l Conduct R. 4.4(b) (2013)

NonClient Consent


Unrepresented Persons

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Always Identify


Respect Persons


Nonlawyer Responsibility


Trail Preparation

Fed R. Civ. P. 26(b) (3) (2016) CR 26.02(3) (2016)

CH. 3, SF Assignment #5

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(F) Medical information

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(G) Accident Scene Checklist

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Review the file before visiting the scene and visit the scene as soon as possible.

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Tools needed: Quad-ruled tracing paper Clipboard Tape measures A walkalong A wheeled measuring device for longer distances 35mm Camera with flash for the best photos A digital camera A color video camera Flashlight Magnifying Glass Compass Tape Recorder Stopwatch Protractor Labeling tags Various sized plastic bags

SF Assignment #6

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(H) Suggestions for locating witnesses and experts

McCord,James W.H. “The Litigation Paralegal; A systems Approach.” Albany, NY: West/Thomson Learning, 202. Print 113-115.

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Techniques for locating witnesses:

Locating expert witnesses:

Check with colleges about experts using in previous cases and the office’s list of experts. Ask the client about experts in the client’s field. Locate articles in professional journals or books on the topic and contact the authors. Ask other firms who have has similar cases to recommend and expert they have used. Contact professional societies. Contact the applicable department or research facility at a college or university. Contact pertinent government agencies that often employ experts in that field.

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Check national legal newspapers, bar association, and paralegal publications for advertisements by experts.

Request names and references of former clients. Search the web.

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SF 3, Assignment # 7

(I) Interviewing a witness

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When creating questions for an interview, the interviewer should consider:

What type of information is needed? The attitude of the witness. What purpose the witness is being interviewed for. What are the key issues of the case? What elements are needed to be discovered to prove or disprove? Where should the interview take place? The witness’s expectations.

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Ch. 3, SF #3 Assignment # 8

McCord,James W.H. “The Litigation Paralegal; A Systems Approach”. Albany, NY: West/Thomson Learning, 202. Print 119-122

Conducting the Witness Interview Have courtesy. Choose a time convenient to the witness. Make your status, your purpose, who you represent, and who you are, clear. Be ethical! Remind the witness that you need their help and that their help is important. Don’t delay the interview. The sooner it is done, the more the witness can remember. If the witness refuses, remind them that you can have them subpoenaed. Refer to the Witness Information Cover sheet filled out at the onset. Take notes. Listen carefully. Do not be inpatient! Restate a witness’s statement as a question if you are unclear.


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Tips for drafting a statement: Visit the scene of the accident to gain insight. Just the facts! If something is vague, try to clarify it. Do not make references to auto insurance. Take statement from people who say they didn’t see anything. It could be handy later for

reasonable doubt of their story. Take notes of other witnesses, but do not include it in the statement. Only reimburse a witness, and only for material loss (such as work). Paying for a

statement looks bad. If you get the answer you need, don’t keep pushing. You could turn the statement the

other way by speaking too much. You can talk to the witness again later. Remember who is watching. Third parties could cause trouble for your case. Be careful of what you say. Do not give copies of statements without the attorney’s approval. Use visual props to aid in witness testimony. Lead witnesses toward factual statements and not statements that could cast doubt on

their statement. (e.g., I think, maybe, could have) When drafting the statement, use the witness’s vocabulary and not your own. Remember when drafting a statement that you want your client to look good. Always remember your objective when interviewing!

Sequence of statements:

Begin with a background paragraph. (Witness, address, date, time, marital status, occupation, etc...)

Second paragraph (date of accident, setting before the accident, why the witness was at the scene, etc.)

Third section (Description of the sequence of events by the witness.) The fourth section is what happened following the accident. The conclusion is the signature of the witness, with the date, affirming that they have

read the statement, and it is true to the best of their knowledge. Additionally, the signature of a witness to the first signature.

Ch.3, SF #3, Assignment #10

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(J) Preserving Evidence

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McCord,James W.H. The Litigation Paralegal; A systems Approach. Albany, NY: West/Thomson Learning, 202. Print 125-135

Preserving Electronic Evidence p. 125

There is a duty to preserve electronic evidence when:

(A)Dictated by the IRS, OSHA, and Health Administration requirements; or(B) The party should know, or should have known, that it could be relevant to pending or

future litigation.

Identification p. 126

The identification of potential evidence is the duty of the investigator. Preserve the scene. Make sketches including witness location, the point at which the witnesses saw the

vehicles, etc.…) Include all relevant information in the sketch (roadways, skid marks, buildings, etc.…) If you cannot make sketches or diagrams, the police should have one.

Physical Evidence

The evidence may belong to someone and be hard to reach. Leave notification to the police, fire, and safety investigators that you would like to take

possession of the item of evidence.

Control and Retrieval p. 127

Mark and item of evidence for positive identification. Create a document that details the manner of taking custody of the item, the marking of

the item, and the date taken. Custody must be substantiated by a document trail showing each transfer in detail.

Storage p. 131

The item must be provided a safe and controlled environment. Each examination of the item must be recorded in detail. The item must be returned in the same condition.

Testing and Examination p. 131

Examinations may destroy the item of evidence. All examinations should be thoroughly documented, with all witnesses present, their full

identification included. (Name, address, specialty, employer, association with the parties to the matter, etc.….)

Video, pictures, full documentation of the steps of the examination are required.

Surveillance and Activity Checks p. 131

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Should be conducted by trained investigators. Video is admissible. Activity checks should be done as the last part of the investigation.

Demonstrative Evidence p. 133

Requires documentation. Presence of a scale, date, and time a must. Making of a measurement must be supported by the proper foundation. The date of the examination and measurements must be included. Dates, times, scales, methods of calculation, sizes and measurements must be

documented.

Sketches and Drawings p. 133

Visual aid Increasingly computer generated X-rays, proposed development or project, etc.… Simple and low cost

Photography p. 133

Admissible Judgement of the person taking the photograph is subject to question. Investigator should have a photo log. Photo quality varies depending on different variables.

Preserving Recorded Statements p. 135

Should be maintained in a storage facility with a numbering system, cross-reference to a case file, and a suspense device to depose of the recording once the case is resolved.

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Works CitedMcCord, James W.H. The Litigation Paralegal; A Systems Approach. NY: West/ Thomson Learning, 2002.

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pgl 213 civil lit systems folder 3 jt

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