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Pretrial Outline - Part 1

Download the PDF version of this outline

Part 2 >>

I. Steps of Litigation

a. Establish relationship w/ client

b. Determine client’s needs and priorities

c. Determine elements of potential claims, defenses, or remedies

  1. Good places to look include
    1. Jury instructions
    2. Treatises
    3. Bar association causes of action

d. Identify likely sources of proof

  1. These are witnesses who have some knowledge of events or exhibits that contain information about the events

e. Determine what informal fact investigation is necessary

f. Determine what formal discovery is necessary

g. Identify solutions

  1. Options include
    1. Do nothing
    2. Informal negotiation
    3. Mediation
    4. Remediation
    5. Summary jury trial
    6. Focus group capacity
    7. Litigate

h. Develop a litigation strategy

i. Make litigation cost and timetable estimates

j. Develop a litigation file system

II. Witnesses

a. Types of evidence

  1. Witnesses
  2. Documents videos pictures
  3. Real (a physical thing)
  4. Expert witnesses
  5. The client

b. Witnesses

  1. Types of witnesses
    1. Friendly ( 2 types)
      1. Type one has lots of info about case
        1. You interview
        2. Record verbatim account
      2. Type two – only has one important data point
        1. You interview
        2. Just get important piece in notes
    2. Neutral
      1. Cops, paramedics, etc
      2. You interview
      3. W/ cops & paramedics you take notes while talking w/ them then type them, send them to person and say if this summary/ account isn’t correct let me know (they can’t give you a written statement so that’s how you get around it)
    3. Hostile
      1. If you can get your foot in the door make sure you ask most important questions first
  2. 3 things to answer about each witness
    1. Who is going to interview them?
    2. Retention (do they accurately remember the events & memory is solid until 24 hours after event)
    3. Retrieval (can they explain what they remember and how best for them to do that)
  3. 4 things required for a lay witness
    1. Oath
    2. Perception – must have seen heard etc
    3. Memory – must be able to remember what they saw
    4. Communication must be able to tell you about what they perceived
  4. 9 minefields for witness testimony (3 groups based on requirements, bias & prejudices, and
    1. Oath – attacking witness honesty
    2. Perception – person did not perceive accurately (my cousin Vinny)
    3. Memory – its been a long time
    4. Communication – like if witness uses language from police then they can be attacked based on that
    5. Prior inconsistent statements
      1. Difference in thinking harder/clarifying vs bias/prejudice
    6. Bad acts (non-criminal like you’re a bad parent or alcoholic)
    7. Criminal records
    8. Character
    9. Reputation
  5. Types of expert witnesses
    1. Testifying experts
      1. Always discoverable
    2. Consulting experts
      1. Not discoverable unless there are exceptional circumstances that prevent them from getting the info from any other means
    3. Informally consulted experts (some kind of undue burden if they couldn’t discover their info)
      1. Never discoverable
  6. Interviewing witnesses
    1. Recording interviews (most important/relevant w/ client)
      1. Take notes yourself (con you miss some details)
      2. Using a recording device (con is it distracts ppl)
      3. Having another person take notes (con they can worry about this person)
  7. Ethical implications/ malpractice issues
    1. Doctors
      1. Defendants lawyer may not get info from plaintiff’s treating physician without permission from the plaintiff’s attorney
    2. Businesses/Corporations
      1. Majority rule – corporate control test = you can’t talk to anyone who would bind the corporation
      2. Minority rule forbids talking to anyone @ corporation
      3. Former employees don’t count unless they were part of the legal defense to a substanial degree
III. Standing to Sue

a. Preliminary to pleading

  1. Real party in interest
  2. Capacity to sue
    1. Issues here with infants & incompetents they need a guardian or representative

b. Standing

  1. 3 criteria
    1. Injury
      1. Actual concrete and particularized
    2. The injury must be fairly traceable to action of D
    3. Injury can be redressed by court
  2. Mootness (live controversy)
  3. Ripeness (can’t be anticipatory)
  4. Political question
    1. Court must have ability to solve vs issue that should be remedied by legislative branch
  5. Abstention – some reason the fed court should abstain from hearing suit
    1. Bc it’s better resolved by states
    2. Court wants to wait for admin changes
    3. Current state claim is working its’ way up so we should wait
  6. Arbitration
    1. If there’s a clause in the contract you have to start here
IV. Civ Pro

a. Fed Subject matter jurisdiction (whether the case can be in federal court)

  1. Need Constitutional & statutory authority
  2. Federal Question – two prongs
    1. Federal Ingredient – Constitutional requirement – Osborne
    2. Well pleaded complaint – Statutory Requirement – Motely
      1. Holmes a suit arises under the law that creates the cause of action
  3. Diversity + AIC
    1. Complete diversity + 75,000
      1. Must be diverse at time of filing
      2. Strawbridge no overlap across the V
    2. Domicile test for…
      1. Real Persons
        1. residency with (subjective) intent to remain indefinitely
        2. You do not lose your old domicile until you gain a new one
        3. Your home is somewhere and you don’t affirmatively intend to go anywhere else Gordon
      2. Corporations
        1. Nerve Center or PPB Hertz
          1. The place where a corporation’s officers direct, control, and coordinate the corporation’s activities
        2. Place of incorporation
    3. AIC
      1. St. Paul Mercury Amount in controversy is met unless there is a legal certainty that the plaintiff’s claim is for less
      2. To meet AIC you can aggregate claims but not parties

b. Federal personal jurisdiction

  1. In rem jurisdiction
  2. Quasi in Rem
  3. In personam – Whether a court has territorial authority over the parties or property
    1. State lines matter – A due process interest in not being subjected to a gov’t that you have no contacts with
      1. Constitutional (5th Amend) to be subjected to a fed court you just need contacts anywhere within the US (the pantry – broad)
      2. Statutory authority with 4(k)(1)(a) only uses tiny part of the constitutional power saying states long arm statues apply to fed jurisdiction (narrow)
    2. 5 Ways to have PJ (constitutional authority)
      1. General Juris – Court has juris over party even if case isn’t related to the state (quantity of contacts)
        1. Continuous, pervasive, and systematic contacts with the state, essentially if the party is “at home” Int’l Shoe
        2. Same domicile tests as SMJ
        3. Also, is jurisdiction fair and reasonable
      2. Specific – D’s physical presence is no longer required – 3 Step analysis (actions w/ in the state itself)
        1. Does the defendant have minimum contacts in the forum state?
          1. Hanson – There must be some act by which the D purposefully availed itself of the privileges of conducting activities within the state, thus invoking benefits of it’s laws
            1. Hess – if you are traveling thru a state and get in a wreck, you can be suedthere
          2. WWV mere foreseeability that consumers would take a product into a state is not enough
          3. Stream of commerce 3 opinions
        2. Does the underlying claim [i.e., lawsuit] arise out of the ∆’s contacts with the forum state? (If contacts completely unrelated to underlying claim, specific PJ does not apply):
          1. Evidence" and “But for” tests
        3. Is personal jurisdiction “fair and reasonable”?
          1. Reasonableness Factors (McGee and WWV)
            1. Burden the ∆

            2. The forum state’s interest
            3. Plaintiff’s interest in convenient and effective relief
            4. Interstate judicial system’s interest in efficient dispute resolution
            5. The shared interest of the states in furthering substantive social policies

c. Joinder/Supplemental jurisdiction

  1. Aggregate claims
    1. You can aggregate claims if the claims are related/joint
    2. You generally cannot if claims are separate at distinct
  2. Joinder
    1. Claim joinder Rule 18
      1. In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. (can assert any claim whether related or unrelated)
      2. Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.
    2. Party joinder Rule 20(a)
      1. Persons Who May Join or Be Joined.
        1. Plaintiffs. Persons may join in one action as plaintiffs if: (allows but does not require p’s to joinder)
          1. they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
          2. any question of law or fact common to all plaintiffs will arise in the action.
        2. Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:
          1. any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
          2. any question of law or fact common to all defendants will arise in the action.
        3. Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities
      2. 20a does require joinder of certain parties if a case cannot be fully adjudicated without their participation
    3. Rule 21
      1. “Misjoinder of parties is not a ground for dismissing an action.
      2. “On motion or on its own, the court may at any time, on just terms, add or drop a party.
      3. “The court may also sever any claim against a party.”

d. Counter claims 13(a)(1) & (b)

  1. 13(a)(1) Compulsory (under supplemental jurisdiction)
    1. (a) Compulsory Counterclaim.
      1. (1) In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
        1. arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
        2. does not require adding another party over whom the court cannot acquire jurisdiction. . . .
      2. Consequence of not asserting a compulsory counterclaim when you could have is that the claim is then barred in a later lawsuit
      3. Does not need an independent jurisdictional basis because it’s an ancillary claim
      4. Must denominate it/label it as a counterclaim in the answer
      5. Must be filed under the appropriate SOL
  2. Test for one transaction or occurrence – “common nucleus” test
    1. Are the issues of fact and law raised in the claim and the counterclaim largely the same?
    2. Would claim preclusion bar a later lawsuit on the party's counterclaim, absent the compulsory-counterclaim rule?
    3. Will substantially the same evidence support or refute the claim and the counterclaim?
    4. Is there a logical relationship between the claim and the counterclaim?
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