Civil Litigation - Law Firms

A conflict between two parties

·         partners - owners - (share profits)

·         junior partners - (less shares in profits) - (6 to 12 yrs to become partner)

·         associates - salaried lawyers

Paralegals - (or) - Legal Assistants

Duties

·         investigation

·         locating and interviewing witnesses

·         depositions

·         interrogatories

·         document production

·         compilation of statistical / financial data

·         litigation citations

·         drafting correspondence

Billable Hours

·         time spent on tasks for client's

·         contingency fee - usually 1/3 of what is collected

·         The worst mistake a law firm can make is missing a deadline

Confidentiality and Attorney Client Privilege

The Framework of a Lawsuit

Most Common Civil Actions

·         tort

·         breach of contract

Tort - private action - (example: medical malpractice)

Breach of Contract  - 2 or more parties and one breaches the contract

Negligence and its Defenses

Most often deal with is negligence

·         duty - (obligation) - standard of conduct

·         foress - ability in negligence law is the premise that a specific action, under particular circumstances, would produce an anticipated result

Breach of Duty

·         failure to perform to the standard

·         causal connection between the conduct or the failure to conform to the applicable duty and the resulting injury and loss occurring to the interest of another

Causation

·         basic premise of the law of negligence that the plaintiff must prove that the defendant was negligent and that such negligence was the proximate or legal cause of the plaintiffs injuries

Joint and Several Liability - (multiple responsibility)

Contribution

·         if two or more defendants were responsible for the plaintiff's injuries both may be held liable

Indemnity

·         injured person sues store and store sues manufacturer

Professional Malpractice

Physicians and Lawyers

Medical Malpractice Categories

·         delay in diagnosis

·         surgical errors

·         informed consent

·         improper treatment

·         drug side effects

·         nursing errors

Expert Witness

·         an expert in the "field of care" - pertaining to your case

Absent Expert Testimony

·         Latin Word - "Res Ipsa Loquitur"

Burden of Proof

·         Preponderance of the Evidence is the Plaintiff's "burden of proof"

Damages come in the form of Compensatory and Punitive

·         compensatory - money

·         punitive - jail time

Defenses - Contributory and Comparative

Assumption of Risk - knowing

Statute of Limitations - time frame

The Discovery Process

Opposing Parties and Counsel exchange all relevant and discoverable information with one another.

Interrogatories - written questions submitted by each party

Depositions - oral question and answer sessions conducted under oath and recorded by a court stenographer.

·         the paralegal drafts and answer interrogatories on behalf of the client

·         once interrogatory answers are received you will be called upon to summarize those answers for your supervising attorney

·         if received answers are incomplete you may have to draft a motion to compel responses to those interrogatories

·         your summary will become the outline for the deposition

·         following the depositions you will be called upon to subpoena - (obtain vital outstanding records not yet in my file)

·         this way both sides are informed and have an even playing field when walking into court

·         you must achieve the goal of ascertaining as much factual information as possible

Privilege

·         attorney client

·         spousal privilege

·         priest - penitent

·         peer review

Marital Privileges

·         adverse spousal testimony privileges

·         confidential marital communications

Interrogatories

·         Utilized to ascertain the specific contentions of a party, meaning exactly what a party contends what should or should not have done regarding the specific allegations and defenses of a case.

·         The disadvantages out-number the advantages. Interrogatories are generally answered by the client's attorney's

·         Most jurisdictions have a limit on the number allowed to be submitted, which limits their effectiveness

·         The intent was to allow the party to ask a reasonably general question and receive a reasonably complete answer.

Objections

You have 30 days to answer the interrogatories

Reasons for Objections

·         relevance

·         trial preparation material

·         privilege

·         too broad and vague

·         sought in bad faith

·         in violation

·         inadmissible at trial

Request for Production of Documents - (another form of discovery)

·         allows a party to seek specific categories of documents related to litigation

·         requests tend to be fewer in number and broader in nature

·         reviewing and summarizing the information received is as important as comparing the responses to the request themselves to insure that you have received complete responses to your requests

·         incomplete responses generally result in a motion to compel

Objections to request for production of documents

·         fails to describe each item to be inspected

·         sought in bad faith

·         seeks information which is privileged

Subpoenas

·         a discovery mechanism whereby counsel can obtain records from a source other than the opposing party, by serving a subpoena directly upon the entity holding the records

Request for Admissions

·         the least utilized but often the most beneficial form of discovery comes in the form of a request for admissions

·         permit certain matters to be established conclusively prior to trial and eliminating those disputed issues at trial

·         sought to facilitate proof with respect to issues that cannot be eliminated from the case

Expert Witnesses and Trial Preparation

Retention and Preparation of an Expert Witness

·         theories and medicine

·         knowledge and credibility

·         reputation, clinical and academic accomplishment

·         communication skills

·         be understood by the jury

·         qualifications

·         specialties involved

Methods of Finding Expert Witnesses

·         medical literature

·         internet

·         you will become knowledgeable in the strengths and weaknesses of the plaintiff's claims

Searching for Information

·         check the American Boards of Medical Specialties to verify the physician is board certified

·         National Institute of Health

Sources for Locating Expert Witnesses

Subsequent Treating Physician

·         excellent persuasive expert for the plaintiff

·         testimony can be highly damaging to the plaintiffs case

Verdict Sources

·         publications which identify experts who have testified in other cases are a frequent source of names

·         obtain deposition transcripts

Universities and Institutions

·         usually familiar with the literature and familiar with cutting edge issues

Professional Directories and Legal Publications

·         directories of members

Expert Search Services

·         never sign contracts

Specialty Areas of Practice

·         the retained expert must have experience in the particular area of medicine and issues presented in the case

Cases

·         retaining an expert is expensive

·         the jury will hear the amount the expert charged to testify

The Trial Notebook

Table of Contents

·         3 ring binder with tab dividers

·         beginning of notebook

Analysis of the Case

·         unified theory of the case and is an essential part of an effective part of an effective trial

·         wide variety of notes that make up the plan for the trial

Analysis of the Opponents Case

Expectations of what is coming from the opponent

Proof Checklist for the Case

·         the formal facts that the law requires you to prove

·         the evidence that supports each element

·         the source of the evidence

Jury Selection

·         questions you will ask potential jurors

·         draw a diagram of jurors seats, names and questions to be asked

Opening Statement

·         outline of what the supervising attorney intends to prove at trial

·         evidence and testimony he will use in order to prove these facts

Stipulations and Pre-Trial Orders

·         read to the jury immediately after opening statement

·         pre-trial orders give you instructions on how trial will be run

Witnesses

List

·         names

·         addresses

·         phone numbers

·         Were they subpoenaed?

·         agreed to show up at a certain time and date

·         liability of damages

·         expert witnesses

·         comments on what they will say

Examination Outline

·         direct or cross-examination

·         question or left side

Proof Checklist

·         short list of evidence and testimony

Deposition Index

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