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Date Created: 10/03/15
Chapter 3 Notes Hiring an Attorney How to select advertisement or referral by person or by company Fees charged for performance of such services as drafting a simple will may be computed for matters that will involve an indeterminate period of time usually time length not known ahead of time dependent fee some attorneys charge a percentage of recovery ex 100000 they d ask for 30 so 30000 sometimes attorneys do a financial history check on their clients if lawsuit isn t successful attorney receives no fee but clients will have to reimburse the attorney for any out of pocket costs incurred winning party may be able to recover at least some portion of her attorney s fees from the losing party the attorney will advise the client whether they can recover attorney s fees in a case the amount of energy an attorney will spend on a given case is also determined by how much time and funds the client wishes to devote to the process STAGE 1 STARTING THE LAWSUIT PLEADINGS documents at the start of the lawsuit Summons handed to defendant tells them to come to court notice requiring the defendant to appear in court and answer the complaint Tells them how long they have to complete answer 20 days in federal court Supeona tells someone they need to come to court usually a witness Default judgment remedy automatically awarded to plaintiff because defendant failed to respond with an answer Counterclaim the defendant can deny plaintiffs allegations and set forth his own claim that the accident occurred as a result of plaintiff s negligence if defendant files a counterclaim plaintiff will have to submit an answer to it Compliant usually around 520 pages includes names of the people involved name of the court where trial will take place reason why the plaintiff is suing Last few pages include a remedy or what the In plaintiff hopes to get out of the tria also called the prayer the summons then gets attached to the complaint Defendant s pleading called llanswer to the complaint the response to the complaint Crosscomplaint complaint filed by defendant suing another person or the plaintiff themselves Demurrer saying it a defective complaint saying its poorly written or doesn t make sense Amended complaint the fixed complaint after the demurrer when an at issue memo is filed case gets put in llback of the linequot 0 Cases are generally taken in order of filling date Service of Process formally notifying the defendant of a lawsuit plaintiff must deliver a copy of the complaint and summons Pretrial Conference hearing purpose is to explore the possibility of a settlement without trial The Discovery Stage Discoveryprocess of obtaining info from the opposing party or from witnesses prior to trial in federal courts parties required to make initial disclosures of relevant evidence to the opposing party ONLY relevant evidence discovery is MANDATORY an attempt to protect witnesses and parties from undue harassment and to safeguard privileged or confidential material from being disclosed ONLY info that is relevant to the case at handor likely to lead to the discovery of relevant infois discoverable court can require the party to submit the materials to the judge in a sealed envelope so that the judge can decide if they should be disclosed to the opposing party Deposition sworn testimony by a party to the lawsuit or by any witness recorded by an authorized court official questions answers are recorder sworn to and signed answers help the attorneys prepare their cases depositions can be used in court to impeachor challenge credibility of a party or witness who changes their testimony at the trial attorney is allowed to ask defendant questions opposing side person must show up ORAL part of discovery Court reporter come to deposition amp come to trial They type up deposition s answers and questions then copy is sent to both parties after Interrogatories written questions for which written answers are prepared and then signed under oath attorney can write out questions and send them to opposing side WR 3939EN part of discovery Depositions VS Interrogatories The main difference is that interrogatories are directed to the party in the lawsuit not the witness And the party can prepare answers with aid of an attorney Whereas depositions are useful for eliciting candid responses from a party and answers are not prepared in advance Interrogatories are designed to obtain accurate information about specific topics m party can serve other party a written request for admission ofr the truth of matters relating to trial any fact admitted is established ad true for the trial opposing party will obtain results eevidence computer generated email voicemail spreadsheets docs Etc time consuming and expensive llRight to Examine Physical Evidencequot documents and tools Physical Inspection mechanics or doctors allowed to inspect person harmed or item damaged by an expert witness Credibility is important The Trial Stage Jury selection select the people that will be on the jury 12 people total Criminal cases the vote MUST always be quotunanimousquot rather than by a majority Asking of questions to people to decide it they will be put on jury voir dire eliminate prejudice people are then excused Challenge asking for juror to be excused Challenge for a cause the reason why juror got excused no limit on ofchallenges Challenge without a cause called preemptory challenge llgut feeling decision Attorneys allowed a limited of preemptory challenges judge will tell you the number allowed ahead of time sometimes important cases there will be extra jurors waiting in case a juror on trial gets sick Questions of fact a fact is in dispute jury decides what facts are truefalse Judge s job is to run the trail properly Who goes first plaintiff gives the opening statement first The plaintiff will ask own witness questions called direct examination Then the defense will ask the same witness questions called crossexamination Cross examination reasons 1 Can bring in different additional information to help your case 2 if person is lying you can trip them up and find out if they are lying After all witnesses have been called up and questioned both sides give closing statements The judge will then give jury instructions they go into deliberation room then they make a unanimous decision and present decision to judge llcase is trailingquot waiting for court room to open up Bailiff just in case people get out of control In a civil case jury is optional Criminal case jury not optional else told them Nothing thye heard from someone else so many exceptions 0 They cant quote what someone else told her Not allowed because someone else said it and opposing side is deprived of a crossexamination 0 Each person must give OWN statement Exception theres about 11 exceptions ex Dying declaration exception you can quote another person if 1 When person makes statement if they are dying 2 Dying person must know they are dying 3 They have to die FACT if person didn t die and recovered they cannot be quoted anymore does not follow lldying declaration quotI objectquot means I think the other attorney is breaking a rule of the courtroom Judge will wait for violation and waits for attorney to say something or lets it pass NOT allowed Only facts no opinion witnesses aren t allowed to give opinion juries can come up with own The exception opinion is allowed when Ex Expert exception can give opinion if the witness is an Min their field something that the jury would not normally know about l P J LlLF i llF 7lF Irrelevant amp Prejudicial usually asked in order for the jury to dislike them MUST be irrelevant can be relevant and prejudicial but CANT be irrelevant AND prejudicial against rules of the trial Sustain judge can agree with objection and tell jury to lldisregard question and then tell court reporter to strike that off the record llMotion ofJudgementquotjudge will call if trial is so ruined because of so many irrelevant or prejudicial questions Direct Question will NOT give away answer Leading Question gives answer away Ex llbeautiful day isn t itquot only allowed to ask leading questions on crossexamination cant ask leading questions on direct exam to own witness leading questions can only be asked to OPPOSING witness judge will ask person to rephrase the question so it doesn t break rules Motions a procedure request submitted to the court by an attorney on behalf of her client when one party files a motion with the court they must also send the opposing party a notice of service Notice of Motion informs the opposing party that the motion has been filed 2 requesting the court to dismiss case for reasons stated in motion usually defendant defendant can file if plaintiff s complaint fails to state a claim without a remedy defendant can also file a motion to dismiss if he wasn t properly served if court lacks jurisdiction or if venue was improper ifjudge GRANTS motion to dismiss the plaintiff is given time to file an amended complaint ifjudge DENIES motion the defendant must file an answer if defendant wants to discontinue lawsuit because he reached an out of court settlement he can llmove for dismissal court can also dismiss a case on its own motion asks court to decide the issue solely on the pleadings without proceeding to trial only granted when there is no dispute over facts of the case and the SOLE issue to be resolved is a question of law asks court to grant a judgment in that party s favor without a trial ONLY if it determines that no facts are in dispute and the only question is how the law applies to the facts party can submit evidence obtained that refutes the other party s factual claim the evidence many consist of affidavits Affidavits sworn statements by parties or witnesses evidence must be admissible evidence Admissible evidence evidence that the court would allow to be presented during the trial