5530: Chapter 6


Published on

  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

5530: Chapter 6

  1. 1. Chapter 6Civil Procedure & Trial Practice 2
  2. 2. Pleadings - I• Summons & Complaint – Sets forth relevant allegations of fact that give rise to one or more legal causes of action – includes damages requested – Case: Improper service of a summons 3
  3. 3. Pleadings - II• Demurrer – A pleading filed by a defendant challenging legal sufficiency of a complaint. 4
  4. 4. Pleadings - III• Answer – A pleading which admits or denies specific allegations set forth in a complaint.• Counterclaim – A request for a written itemization of the claims which a defendant can demand from the plaintiff to determine details of a claim. 5
  5. 5. Pleadings – IV Bill of ParticularsRequest for a written itemization of claims a defendant can demand from plaintiff to determine details of the claim, e.g. • date & time of day negligence • where the alleged malpractice occurred • the act negligent alleged to have occurred • how the alleged the negligence occurred • listing of injuries claimed • listing of any witnesses alleged malpractice 6
  6. 6. Discovery & EBTs• Process of investigating facts of a case before trial.• Discovery rules promulgated to prevent trial by ambush. 7
  7. 7. Objectives of Discovery• Obtain evidence that might not be obtainable at time of trial.• Isolate & narrow issues for trial;• Gather knowledge of the existence of additional evidence that may be admissible at trial.• Obtain leads to enable discovering party to gather further evidence. 8
  8. 8. Examination Before TrialAn EBT may reveal sufficient facts discouraging plaintiff from continuing the case or it may encourage one or both parties to settle out of court. 9
  9. 9. DepositionA deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format. 10
  10. 10. Attorney-Client PrivilegeConfidential communications made by a client & an attorney 11
  11. 11. Elements Needed to Establish Attorney-Client Privilege• Both parties must agree that the attorney-client relationship does or will exist.• Client must seek advice from an attorney in his or her capacity as a legal advisor.• Communication between attorney & client must be identified to be confidential. 12
  12. 12. Incident & Investigative Reports - I• Incident Reports – not generally protected from discovery• Statistical Data – Not Always Privileged 13
  13. 13. Incident & Investigative Reports - II• Cases – Incident Reports Not Always Privileged – Statistical Data NotAlways Privileged 14
  14. 14. Preparation of Witnesses – I• Review records• Do not be antagonistic• Be organized in: – thinking – recollection of facts• Answer “only” questions asked• Explain simply, succinctly 15
  15. 15. Preparation of Witnesses – II• Do not over-dramatize• Do not become over-powered by cross- examiner• Be polite, sincere, & courteous• Dress appropriately• Be well groomed• Listen for objections 16
  16. 16. Preparation of Witnesses – III• Review your EBT before trial• Be honest with examiner• Do not show displeasure• Ask for questions to be repeated for clarification• Not sure of answer – indicate you are not sure 17
  17. 17. Pretrail ConferenceInformal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues, and settle procedural matters relating to the trial. 18
  18. 18. Pre-Trial Motions - I• Motion to Dismiss a case – Defendant alleges plaintiff„s complaint does not set forth a claim or cause of action recognized by law. 19
  19. 19. Pre-Trial Motions - II• Motion for Summary Judgment – Either party to a suit may believe that there are no triable issues of fact & only issues of law to be decided. – In such event, either party may make a motion for summary judgment.• Cases – Summary Judgment Granted – Summary Judgment Denied 20
  20. 20. Notice of TrialOnce a decision to go forward is reached, the case is placed on a court calendar. 21
  21. 21. Notice of Trial• Once a decision to go forward is reached, the case is placed on the court calendar.• Postponement of the trial may be se- cured with the consent of both parties and the consent of the court. 22
  22. 22. Memorandum of LawA memorandum of law (or trial brief ) presents to the court the nature of the case, cites case decisions to substantiate arguments, and aids the court regarding points of law. 23
  23. 23. Judge• Handles conduct of trial• Decides questions of law• Determines issues of procedure• Decides if evidence admissible• Charges the jury• May direct a verdict 24
  24. 24. The Judge• Decides questions of Law• Ensures that the trial is conducted in a fair manner• Decides whether evidence is admissible 25
  25. 25. The Jury• Selected from jury list• Determines the facts• Determines issues of fact• Determines damages, if any 26
  26. 26. Subpoena - IA legal order requiring the appearance of awitness and/or the presentation of documentsat a legal proceeding. 27
  27. 27. Types of Subpoenas• Subpoena ad testificandum – Subpoena for a witness• Subpoena duces tecm – Subpoena of records 28
  28. 28. Burden of ProofObligation of the plaintiff to persuade the jury regarding the truth of his or her case. 29
  29. 29. Res Ipsa Loquitur “the thing speaks for itself”Legal doctrine that shifts the burden of proof from the plaintiff to the defendant. 30
  30. 30. Res Ipsa Loquitur Proof Required1. Event causing injury – would not normally have occurred in the absence of negligence2. Defendant – must have exclusive control over instrument causing injury3. Plaintiff – must not have contributed to the event causing injury. 31
  31. 31. Wrong Medication – IStanley refills his drug prescription at Discount Drugs. Prior to taking his nightly dosage he noticed the pills appeared larger than normal. He phoned Discount Drugs & explained his concern. The Pharmacist, stating he was busy, assured Stanley generic drugs sometimes are larger & the medication was correct. Stanley took the drug & never woke up. The dosage given was five times that prescribed. The pharmacist filled Stanley‟s prescription from the wrong container. Is the pharmacy liable for Stanley’s death? 32
  32. 32. YesThe plaintiff – Stanley - need not prove conclusively that the defendant -pharmacist‟s - negligence resulted in injury, only that all reasonably probable causes of the accident can be traced to the defendant. See res ipsa loquitur above. 33
  33. 33. Opening Statements• Plaintiffs attorney: provides, in capsule form, the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client.• Defense attorney: explains the facts as they apply to the case for the defendant. 34
  34. 34. Examination of Witnesses• Officer of Court Administers Oath• Direct Examination• Cross Examination• Redirect Examination• Recross Examination 35
  35. 35. Evidence - I• Direct Evidence – Statutory Evidence • Violation of a statute may constitute direct evidence of negligence, or it simply may voice a duty that is owed to a particular class of persons who are protected by the statute or regulation. 36
  36. 36. Evidence - II – Policies & Procedures • Day-to-day organization operations. • If a violation of a p&p causes injury to one whom the policy or procedure is designed to protect, such violation can give rise to evidence for negligent conduct.• Demonstrative Evidence• Documentary Evidence• Judicial Notice 37
  37. 37. Evidence - III• Hearsay Evidence – Case: Hearsay & Lost Chance of Survival – Medical books as Hearsay Evidence 38
  38. 38. Presenting Evidence - IV• Expert Testimony – Experts necessary • When issues to be resolved are outside the experience of the average juror. – Experts not always necessary • Issues are within common knowledge understanding –E.g., broken bones should be x-rayed 39
  39. 39. Cases: Expert Testimony - I• Amputation of the Wrong Limb• Resident Suffers Indignities• Pharmacist Not Always a Qualified Witness• Gross Negligence 40
  40. 40. Cases: Expert Testimony - II• Surgical Sponge Left in Patient• Falls from Defective Chairs• Negligent Insertion of an IV• Admissibility of Physician Testimony 41
  41. 41. Negligence Defenses - I• Ignorance of Fact/Unintentional Wrongs• Assumption of a Risk• Contributory Negligence• Good Samaritan Statutes – Pre-existing Duty to Care – Emergency Assiance 42
  42. 42. Legal Defenses - II• Borrowed Servant Doctrine – Hospital Responsible for Resident‟s Negligence – Physician Not Responsible for Resident‟s Negligence• Captain of the Ship Doctrine 43
  43. 43. Legal Defenses - III• Comparative Negligence• Statute of Limitations• Sovereign Immunity – Federal Tort Claims Act – Failure to Refer – Nurse‟s Negligence: Immunity Denied 44
  44. 44. Legal Defenses - IV• Intervening Cause – A force which takes effect after the defendant‟s negligence, which contributes to that negligence in producing the plaintiff‟s injury. 45
  45. 45. Superseding Intervening Cause• An unforeseeable force coming into being after defendant‟s negligent act, which cancels the defendant‟s liability by breaking the chain of causation from the defendant‟s act to the plaintiff‟s injury.• Such an act destroys the casual connection between the negligent act of the defendant & the injury.• Damages are not recoverable because the original act is not the probable cause of plaintiff‟s injury. 46
  46. 46. Unforeseeable Causes• Malicious, intervening acts, if unforeseeable.• Intervention by one with a higher ethical duty to the victim (e.g., parent or guardian).• Extraordinarily negligent intervening conduct.• Acts of God (e.g., floods, hurricanes, tornados, earthquakes). 47
  47. 47. Case: Lighting StrikesMary underwent surgery at General Hospital in Anytown, U.S.A. The power grid in the northeast shut-down & the hospital‟s emergency generator came on line. Lighting struck the generator & the OR lights went out. The surgeon cut an artery while completing Mary‟s surgery under difficult circumstances. Mary suffered serious injuries. Mary sues the surgeon. Will Mary succeed in her lawsuit? 48
  48. 48. NO!• There was a Superseding Intervening Cause.• It was unforeseeable that the power grid in the NE would shut down & lighting would strike the generator. 49
  49. 49. Foreseeable Intervening Causes• Those subsequent forces which: – objectively speaking, one should reasonably anticipate, or – those the defendant should reasonably anticipate under the circumstances. 50
  50. 50. Fall from ED StretcherMindy, while transporting Jen to a minor treatment room, negligently pushes Jen‟s stretcher thru corridors injuring her foot. While being operating on for foot injuries, Mindy miscarriages. Is the hospital liable for Jen’s miscarriage? 51
  51. 51. Yes! Foreseeable Intervening CauseMindy, the negligent defendant, is liable for intervening acts as long as they are foreseeable. 52
  52. 52. Bottle of PillsMary was visiting her son Tom in the hospital. She noticed a bottle of pills on Tom‟s over bed table. She intended to ask the nurse about the pills but forgot. Mary received a call from work on her cell phone and had to leave. She told Tommy she would be right back as she rushed out the door. Tom finds the pills & swallows them, making him seriously ill. Is the nurse & hospital responsible for Tom’s injuries? 53
  53. 53. Yes & No – I• Yes, it is foreseeable that if a nurse leaves pills on a child‟s over bed table that the child may swallow them. The hospital is liable on the basis of respondeat superior.• No, although the result here is foreseeable (injury to the patient), as well as the cause ( the child finding the pills), there is an independent intervening event – mom‟s discovery – which relieves the nurse of responsibility, due to the mother‟s heightened ethical duty to protect her son. 54
  54. 54. Yes & No – II Discuss• Defense counsel argues: – intervening Cause – contributory Negligence: mother? – comparative Negligence: mother?• Plaintiff‟s counsel argues – hospital & nurse had a duty greater than the mother 55
  55. 55. Yes & No – III Discuss• This case is a perfect example of why there is a need for a trial.• The jury determines the facts.• The judge decides questions of law.• A verdict needs to be reached.• Post Verdict: there will always be someone unhappy with the outcome. 56
  56. 56. End of Trial• Closing Statements• Judge‟s Charge to Jury – Example of Judge‟s Charges – Jury Charges Must be Clear – Jury Instructions Must Not be Prejudicial – Court Erred in Jury Charges – Jury Deliberation & Decision 57
  57. 57. Awarding Damages• Nominal: are a token in recognition that a wrong has been committed. In such cases, the amount of compensation is insignificant.• Compensatory: intended as reparation for detriment or injury sustained.• Hedonic: awarded to compensate plaintiff for loss of enjoyment of life.• Punitive: additional monetary awards when an injury is caused by gross carelessness or disregard for others safety. 58
  58. 58. Cases: Damages - I• Plaintiff‟s Schedule of Damages – Damages/Future pain & suffering – Punitive Damages/Mighty Engine of Deterrence – Gross and Wanton Negligence – Amount of Wrong Measured by Gravity of the Wrong 59
  59. 59. Cases: Damages - II– Punitive Damages and Outrageous Care– Punitive Damages for Failure to Diagnose Inappropriate– Surviving Spouse & Children– Emotional Distress– Not Excessive 60
  60. 60. Cases: Damages - III– Due to Severity of Injury/Award Fair and Just– Not Based on Prejudice and Passion– Excessive– Award Appropriate 61
  61. 61. Cases: Damages - IV– Award of $180,00 Not Excessive– The Wrong Blood– Excessive– Damages Capped 62
  62. 62. Joint & Several Liability• Permits defendant to bring suit against all persons sharing responsibility for injuries.• Permits plaintiff to collect from any “one” or “all” of defendants. 63
  63. 63. Appeals: Grounds for– Verdict excessive– Evidence rejected should have been accepted– Inadmissible evidence permitted 64
  64. 64. Execution of JudgmentsFollows after all appeals have been exhausted! 65
  65. 65. REVIEW QUESTIONS - I1. Describe trial process, including pretrial motions & the functions of the judge, jury, & attorneys.2. Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.3. What defenses can a defendant present in order to refute a plaintiffs evidence? 66
  66. 66. REVIEW QUESTIONS – II4. Describe how statutes of limitations favor defendants?5. Describe the differences between nominal, compensatory, hedonic, & punitive damages. 67