Before Trial

Exhausted options?

• Have all administrative procedures been complied with?

• Internal company procedures?

• Contractual obligations for dispute resolution?

For example

• Grievance procedures for unionized shop

• Mediation requirements for contracts or special courts

• Arbitration clauses or court order arbitrations

Anatomy of a Civil LawsuitI. The Pleadings.

• A. The Complaint.

• B. The Answer.

• C. Responsive Motions.

• D. Counterclaims.

• E. Cross-claims and Third-Party Claims.

• F. Amendments.

II. Pretrial Procedure.

• A. Discovery.• B. Discovery Methods.• 1. Depositions.• 2. Interrogatories.• 3. Requests to Produce Documents and Things by

Parties.• 4. Production of Documents and Things by

Nonparties.• 5. Mental and Physical Examinations.• 6. Requests for Admissions.• C. Protective Orders.• D. Sanctions.

III. Dismissal.

• A. Voluntary Dismissal.

• B. Involuntary Dismissal.

• C. Summary Judgment.

IV. Trial.

• A. Demand for Jury.• B. Jury Selection.• C. Opening Statements.• D. Motion for Directed Verdict.• E. Closing Arguments.• F. Jury Instructions.• G. Verdict.• H.  Final Judgment

V. Post-Trial Proceedings

• A.  Enforcement of a Judgment

• B.  Relief from Judgment

• D.  Ancillary Proceedings

• VI.  Conclusion.

Issues

• Procedural Issue

• Substantive Issue

• Legal Issue

and

• The Claim(s)

Fact Brief

• Summary of Events• Factual Time Line• Procedural Time Line• Cause of Action• Defenses• Admissions• Denials• Stipulations• Applicable Laws (substantive)• Case in Chief (legal)• Evidence List and Match to Elements/Defenses

Pretrial Memo

• Pretrial Memorandum (or statement)

• See example page 358– Issues– Areas of agreement– How long case will take

After conference

• Pretrial Order, jointly prepared

Pretrial Conference

• The Purpose?– To simplify issues of all sorts…– To press both sides to settle…– Or at least to agree on some things

– Such as…

Such as

• Necessary pleading amendments• Parties admissions of uncontroverted facts• Crystallize legal issues

– Court may order lawyers to prepare memo of points and authorities on unusual or tricky legal issues

• Deal with legal issues, and issue orders• List and limit expert witnesses• Refer to arbitration or mediation or referee

Ethics

• California Rule of Professional Conduct– 5-200– See page 365

– Does this contradict what you see on TV?– But… what does the rule really imply?

Trial Brief

• The legal argument with persuasion

• Statutes and Case Law… presented in the best light possible

• Arguing the admissibility of evidence…

• Local rules govern the exact form, length and sometimes content.

Witness Issues

• Place witnesses “on call”

• Subpoena any vital witnesses

• Determine willing vs. Unwilling witnesses

• Any witness fees or costs?

• Witness meetings and briefings

Witness Meetings

• Erroneous versions

• Inconsistent accounts

• Conflicts with other parties or witnesses– Is there a “subtext”?

• Separately or together?– Why/Why not?

Documents and Things

• Do we have originals?

• IF not, admitted to as genuine?

• Copies for all parties

• Exhibits pre-marked for submission

• Organized in order of presentation or for best “effect”… distract or to shadow…

• What electronic presentation equipment is available in that court room?

Jury Investigation

• How much money is this case worth?

• Look at jury pool…– Neighborhoods drawn from?– Hire psych/consultant?– Review preliminary questionnaires– Google them…

Mock Trial

• If case is significant…– Test evidence and arguments before a mock,

compensated jury drawn from similar sources– Test witnesses for “believability”

Trial Notebook

• Three-ring or Computerized…

• Searchable

• Contents

• Appendix

• Time-lined

Continuance?

• Are we ready?

• Are there conflicts with other trial/hearing dates?

• Pre-paid/scheduled vacations?

• “Date Certain”… then deal with it!

• Granted at discretion of judge…

Strategy

• Telling the story…– Consider the nature of story telling– Have you ever taken creative writing?– What makes a good novel or movie?

– The plot arc!

The Plot Arc

• “That which does not kill us makes us stronger.” ~ Conan the Barbarian

• The word “plot” means the path that the story follows.

• You are probably familiar with the concept of a timeline. There is a beginning, middle and an end. That path is the plot.

ARC

Not really an arc

Consider the steps

• Characters? – Do you like them? You’d better!

• If the jury doesn’t like your characters, they won’t care… or worse, they will be spiteful.

• How do you make someone like you?

OH OH, Trouble Coming!

• Let them see the problem developing..

• Who could have stopped this? The Defendant, of course! (or…)

– Foreshadowing and Theme… Whose fault is this???

The Climax

• OK, this is it? – What do you do?

What WOULD YOU do??

Jury Instructions

• Select pre-written

• Draft tailored versions

Trial by Jury

• Seventh Amendment

• In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

And this means?

• Re-Examination Clause

• $20 Clause– Congress has never extended federal

diversity jurisdiction to amounts that small.– Under the current

Federal Rules of Civil Procedure (28 U.S.C. §1332), the amount in dispute in diversity cases must exceed $75,000 USD in order for the case to be heard in federal court.

Jury’s Role

• So, what exactly is the reason to have both a judge and jury?

• … and who are these people?– Driver’s License (DMV)– Voter Lists

– Are they happy to be there?

Demand for Jury Trial

• Typically a part of the complaint…

• Rule 38 of the Federal Rules provides details…

• Can you waive this right? – If so, then what happens?

– Can the judge order a jury anyway?

Number of Jurors

• Typically 12, but…• Scotland, a jury in a criminal trial consists of 15 jurors!• 6, 8, 7? • Alternates

• A study by the University of Glasgow showed that a jury of 12 people was ineffective because a few jurors ended up dominating the discussion, and that seven was a better number because more people feel comfortable speaking, and they have an easier time reaching a unanimous decision

Challenges

• Voir dire – (Old French, To “speak the truth” )

• Peremptory Challenge– The number of peremptory challenges allotted to each party will

depend on the type of case and number of defendants. In single-defendant criminal cases, such as this one, each side generally has ten peremptories; in most civil cases, six peremptories; and in cases where the potential sentence is life in prison or the death penalty, 20 peremptories. [CCP §231.]

• Challenge For Cause– Actual Bias– Implied Bias

Peremptory challenges• Peremptory challenges date to Roman times. Under Roman law, both

parties proposed up to one hundred jurors each. Then, each side could strike 50 jurors, leaving one hundred jurors to decide the case. Under English common law, the defendant was allowed to exercise 35 peremptory challenges; the prosecution's use of peremptory challenges was unlimited.

• In 1305, however, Parliament abolished the prosecution's right to peremptories. Finally, in 1988, Parliament abolished the defendant's right to peremptories, because it found that attorneys were using them to stack the jury with individuals biased towards the defendant.

• The peremptory challenge system has always existed in the United States, and it survived virtually without question until the twentieth century. The preservation of this tradition is one of the reasons asserted by supporters of the peremptory challenge to continue its use.

• Although the right to exercise peremptory challenges is not guaranteed by the Constitution, the Supreme Court has often held that peremptory challenges are an essential means for achieving an impartial jury.

Voir Dire Questions

• We’ll explore this next week!

Proposed Verdicts

• Three types of verdicts are rendered:– General– Special– General with interrogatories

– We will explore these and other similar issues next class session.