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Pretrial Outline - Part 3

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<< Part 2 | Part 4 >>

h. Discovery on experts

  1. NC law
    1. Trial Preparation; Discovery of Experts. – Discovery of facts known and opinions held by experts, that are otherwise discoverable under the provisions of subdivision (1) of this subsection and acquired or developed in anticipation of litigation or for trial, may be obtained only as provided by this subdivision: a.
    2. In general. – In order to provide openness and avoid unfair tactical advantage in the presentation of a case at trial, a party must disclose to the other parties in accordance with this subdivision the identity of any witness it may use at trial to present evidence under Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence.
  2. Federal law FRCP 26(b)(4)(a)
    1. Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
    2. Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
      1. (i) a complete statement of all opinions the witness will express and the basis and reasons for them;
      2. (ii) the facts or data considered by the witness in forming them;
      3. (iii) any exhibits that will be used to summarize or support them;
      4. (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
      5. (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
      6. (vi) a statement of the compensation to be paid for the study and testimony in the case.
      7. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
      8. (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
      9. (ii) a summary of the facts and opinions to which the witness is expected to testify.
      10. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
      11. (i) at least 90 days before the date set for trial or for the case to be ready for trial; or
      12. (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
  3. Pre-trial disclosure
    1. 30-60 days out from trial
    2. 3 things to disclose
      1. witnesses you intend to call (and a list b of possible ppl)
      2. Depos or discovery for trial
      3. All docs for trial or maybes (a list b like above)
    3. Must disclose objections
      1. Rule 32(a)
      2. Rule 26(a)(3)(A)(iii)
        1. If you don’t object in these disclosures then they’re waived (except under 402 or 403)

i. Work product doctrine

  1. NC law
    1. a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other agent only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court may not permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action.
    2. Because of. One highly-respected treatise on civil procedure explains "anticipation of litigation" this way: "The test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work-product immunity for documents prepared in the regular course of business rather than for purposes of the litigation."
  2. Federal law FRCP 26(b)(3)(a)
    1. Trial Preparation: Materials.
      1. Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
        1. they are otherwise discoverable under Rule 26(b)(1); and
        2. the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
      2. Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
      3. Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
        1. a written statement that the person has signed or otherwise adopted or approved; or
        2. a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.

    → Rule 45 subpoena

    → 3 types of statements

    • witness statements: written statement made by a non-party is discoverable
    • party statements said to their own lawyer
    • party statement said to someone else: party is always entitled to their own statement if it falls into the hands of the opposing party

    → 3 types of experts

    • testifying expert: testifies
    • consulting expert: the person who educates the lawyer about a specific field like medicine in anticipating of litigation but not expected to be used at trial
    • informally consulting expert: educates the lawyer in preparation of trial but is not retained or specifically employed by the lawyer to testify

    VII. Complaints / Pleadings

    a. 4 purposes of a complaint

    1. sets outer bounds of permissible discovery
    2. First requests for admissions
      1. Conciseness in pleading prompts narrow responses
    3. Public document when you file (press can access)
    4. It’s your first presentation to judge & opposing counsel

    b. Notice pleading (applies to reg claims & cross claims, counter, etc)

    1. Short and plain statement for jurisdiction
    2. Short and plain statement of claim for relief
    3. Short and plain statement of entitlement to relief

    VIII. Answers

    a. 4 parts

    1. Defense
      1. Truth or falsity of allegations
        1. You must answer each, if you don’t you admit to the allegation
    2. Affirmative defenses
      1. Statue of frauds etc.
      2. Motions to dismiss
        1. You don’t include facts, just the D name
    3. Counter claims
    4. Prayer for relief

    b. Practicalities

    1. You must include all affirm defenses because if you don’t then they’re waived
    2. In fed court you need to make a motion w/ a brief or memo to get this heard
    3. In state court you must file notice for hearing on motion w/ calendar request
      1. If you want an oral argument you have to ask for it
      2. You also need to serve the other side

    c. Replies (mini answers)

    1. If D makes a counter claim then P has to file an answer
      1. But if D doesn’t lay out that it’s a counter claim (vs an affirm defense) then P doesn’t have to reply
    2. Cannot bring any new info

    IX. Relief/Remedies

    a. General damages

    1. “Damages that are the usual result of the defendant’s tort, which flowed naturally and necessarily (automatically) from the tort.”
    2. Normally harder to quantify for example pain and suffering
      1. General rule your general damages will normally be 3-5 times the amount of your special damages

    b. Special Damages (consequential damages/ indirect damages)

    1. Damages that resulted naturally, but not necessarily (automatically), from the defendant’s tortious conduct.
      1. Can often more quantifiable = medical bills & lost wages
    2. These should be foreseeable or expected/probable
    3. Standard of proof is reasonable certainty
    4. To recover for consequential damages the D’s actions must be the proximate cause of P’s damage (but for cause)

    c. Punitive

    1. Haslip factors for recovery (these go on jury instructions)
      1. How reprehensible was conduct?
      2. How likely was the harm/degree of harm?
      3. What was D’s awareness of potential harm?
      4. How long has bad conduct been happening?
      5. Did the D try to hide wrongdoing?
      6. Has the D committed similar wrong conduct in the past?
      7. Did the D profit?
      8. The ability of the D to pay?
    2. Constitutional guideposts for “punitive reasonableness”
      1. Reprehensibility
      2. Ratio of punitives to potential harm
      3. Disparity between punitive award and civil/crim penalties for similar conduct
    3. Punitive damages that are greater than 1:10 ratio comp to punitive are presumptively unreasonable
    4. NC Laws on punitive damages
      1. General rules
      2. Capped at 1:3 ratio or 250,000 (whichever is greater)
        1. Exception for DWI’s
      3. Punitive damages aren’t recoverable for breach of contract
      4. NC doesn’t allow punitives for vicarious liability
      5. Be able to get compensatory damages (don’t have to actually receive them though)
      6. And one of the following must be present (you must specifically plead these)
        1. Fraud, malice, willful & wonton conduct (almost reckless)
    5. Statutory/liquidated
    6. Nominal/ injunctive/declaratory

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