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The Federal Rules of Civil Procedure (Series: Newbie Litigator School)

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The Federal Rules of Civil Procedure (Series: Newbie Litigator School)

This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the attendee will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour long discussion.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-federal-rules-of-civil-procedure-2020/

This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the attendee will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour long discussion.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-federal-rules-of-civil-procedure-2020/

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The Federal Rules of Civil Procedure (Series: Newbie Litigator School)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. 3 Thank You To Our Sponsor
  4. 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  5. 5. Meet the Faculty MODERATOR: Adam Hirsch - Roetzel & Andress PANELISTS: Max Stein - Boodell & Domanskis, LLC Gerald Meyer - MoloLamken LLP 6
  6. 6. About This Webinar – The Federal Rules of Civil Procedure This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the attendee will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour long discussion. 7
  7. 7. About This Series – Newbie Litigator School – Fall 2020 Edition Has it been a couple of (or more) years since you took Civil Procedure in law school? Or perhaps you a business owner who has been sued repeatedly and you want to learn a bit about how the sausage is made. This series is one of several series (together with the “Newbie Litigator School” Parts 2 and 3) that Financial Poise designed specifically for attorneys who could use a broad-brush yet pithy refresher about civil litigation fundamentals, with some real world color added in. The purpose is to introduce different components and phases of litigation, from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  8. 8. Episodes in this Series #1: The Federal Rules of Civil Procedure Premiere date:10/8/20 #2: Discovery Practice Premiere date: 10/28/20 #3: Dispositive Motions Premiere date: 11/18/20 #4: Working With Experts Premiere date: 12/16/20 9
  9. 9. Episode #1 The Federal Rules of Civil Procedure 10
  10. 10. Federal Rules of Civil Procedure Refresher The Federal Rules of Civil Procedure will be 82 years old this September. They were instituted in 1938 by act of Congress. Their purpose is to provide the structure and rules for every lawsuit filed in federal court in the United States. 11
  11. 11. Rule Number One: These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. 12
  12. 12. Fed. R. Civ. P. 2: There is one form of action — the civil action. 13
  13. 13. How to Sue Someone File a complaint (Rule 3), and have it properly served on the defendant(s) (Rule 4). 14
  14. 14. Waiver of Service of Process • “Service of process” means providing initial notice of the lawsuit and the plaintiff’s complaint to the defendant. Before you could email stuff around the world in an instant, service of process used to be a bigger deal.  Now, much of the traditional formality has been eliminated. The Federal Rules encourage defendants to waive their right to be formally served with process. See Rule 4(d). Many defendants choose to do so, and are often “served” by email sent to them or to their attorney. 15
  15. 15. Complaint and Answer • Complaint-  A federal civil action starts with a complaint- a “short and plain statement of the claim showing that the pleader is entitled to relief.” See Rule 8(a)(2). o This is the document that a plaintiff files to initiate a lawsuit. It must consist of numbered paragraphs and have a request for the relief sought. • Answer-  Unless the defendant chooses to move to dismiss, he must answer the complaint. The answer should “state in short and plain terms its defenses to each claim asserted against it” and should “admit or deny the allegations asserted against it by an opposing party.” Rule 8(b). 16
  16. 16. Motions to Dismiss If a defendant believes that the plaintiff’s complaint is facially invalid or that he can’t be sued in the court where the plaintiff chose to file, the defendant can make a motion to dismiss instead of answering. 17
  17. 17. Motions to Dismiss • Motions to dismiss are governed by Rule 12(b), which lists 7 grounds to move to dismiss:  Lack of subject-matter jurisdiction  Lack of personal jurisdiction  Improper Venue  Insufficient Process  Insufficient Service of Process  Failure to state a claim upon which relief can be granted  Failure to join a party under Rule 19 18
  18. 18. Motions to Dismiss If a defendant thinks that the plaintiff cannot win as a matter of law, the defendant files a motion to dismiss under Rule 12(b)(6). A Rule 12(b)(6) motion assumes that all of the facts in the complaint are true, and argues that the defendant nevertheless deserves to win because the plaintiff cannot state a legal claim for relief. • If your defense depends on challenging the facts alleged in the complaint, it is not properly brought as a motion to dismiss. • If the Court can assume that the entirety of the complaint is true, but the defendant still can win, then the defendant has grounds for a motion to dismiss for failure to state a claim. 19
  19. 19. What if there is More than One Plaintiff or Defendant? • The federal rules contemplate that litigation may be more complicated than one plaintiff suing one defendant. Rule 13 sets guidelines for a defendant’s counterclaims or cross-claims. Rule 14 allows defendants to bring third parties into the case in certain circumstances. • Other rules spell out when additional parties must be made a part of the litigation (Rule 19) or may be made part of the litigation (Rule 20). • Rule 23 governs class actions: cases where representative plaintiffs pursue claim on behalf of hundreds or thousands of others with similar claims. • Rule 24 governs “intervention”: when someone not named in the original lawsuit can add themselves to the case as a plaintiff or defendant. 20
  20. 20. Who Should I sue?/Who can sue? • Sometimes it is not clear who the plaintiff should name as a defendant. This is particularly true if the plaintiff wants to sue a corporation and is unsure which entity within a corporate family is responsible. • Sometimes a person or entity who was not harmed wants to bring suit on behalf of the party who was harmed. In most instances, this will not be allowed. • Rule 17 says that a lawsuit must be brought “in the name of the real party in interest.” • If the real party in interest is not named initially, Rule 17 says that the court must give the parties a reasonable time to add or join them to the lawsuit before dismissing. 21
  21. 21. Discovery • What is Discovery?  Discovery is the stage of the case where parties take steps to learn information from the other side. Discovery is governed by the Federal Rules of Civil Procedure Nos. 26- 37. 22
  22. 22. Discovery • Scope of Discovery  Rule 26(b)(1) provides: o Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 23
  23. 23. Discovery • Methods of Discovery  Discovery occurs in both written (paper) and oral forms. Written discovery includes requests for the production of documents (Rule 34), written questions that must be answered under oath, called “interrogatories” (Rule 33), and requests for admission (Rule 36). Discovery of information held by non-litigants, by way of a subpoena, is governed by Rule 45. • Oral discovery means depositions (Rule 30). A deposition is an examination of a witness under oath by a lawyer. These examinations do not take place in court, but the witness’ testimony is given under penalties of perjury. Under the Federal Rules, depositions can last up to seven hours. 24
  24. 24. Discovery • Discovery of Electronically-Stored Information  The Federal Rules have been amended in recent years to account for the proliferation of electronic information in our everyday lives. The Federal Rules governing discovery have provisions that speak directly to parties’ obligations to retain and produce electronically-stored information (ESI). See Rule 26(b)(2)(B), Rule 26(f)(3)(C), Rule 34(b)(2)(E), and Rule 34(b)(2)(F). • Expert Discovery  Rule 26(a)(2) governs discovery of expert witnesses. An expert witness is one who testifies as to her opinion, as opposed to a witness who testifies only about facts. There are well-established standards for the discovery of expert opinion testimony. 25
  25. 25. Summary Judgment • Prior to trial, a party may make a motion asking the court to enter summary judgment in its favor. As Rule 56 states:  The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.  A defendant has good grounds for summary judgment if the evidence collected in discovery by the plaintiff does not allow the plaintiff to state a claim. Put differently, if the relevant facts are not in dispute at the close of discovery, and if those facts show that the plaintiff cannot win, then summary judgment for the defendant is proper. 26
  26. 26. Trial While a handful of the Federal Rules address trial practice, evidence submitted at trial is done so subject to the Federal Rules of Evidence, which are separate from the Federal Rules of Civil Procedure. 27
  27. 27. Judgment Rules 54 and 58 govern the judgments of federal courts. While these rules may seem overly formalistic, the entry of a final judgment is an act best governed by precise rules, as final judgments are the enforceable end product of litigation. 28
  28. 28. Post Judgment / Appeals The Federal Rules allow parties to ask for corrections or relief from final judgments (Rules 59 and 60). Motions made under these rules are rarely granted. Following post-trial motions, a party may appeal the federal court’s ruling. Appeals are governed by the Federal Rules of Appellate Procedure. The post-judgment rules have been recently amended to clean up some differing and inconsistent due dates. Even in their current form, though, the deadlines in these rules are strict. Once a judgment is reached, courts do not want cases to linger on. 29
  29. 29. About the Faculty 30
  30. 30. About The Faculty Adam Hirsch - AHirsch@ralaw.com Mr. Hirsch focuses his practice on commercial and business litigation, representing a wide variety of clients ranging from individuals to small business owners to large corporations. He has a particular focus on investment disputes and business fraud claims, and has represented investors and investment companies as plaintiffs and defendants in lawsuits around the country. Mr. Hirsch regularly writes and presents on current issues relating to business fraud. He also has extensive experience litigating contract disputes, and has argued and tried multi-million dollar contract issues before judges and juries nationwide. Mr. Hirsch also has experience in advising clients in employment disputes relating to matters such as separation, severance, non-solicitation, and non-compete agreements. 31
  31. 31. About The Faculty Max Stein - mstein@boodlaw.com Max Stein, a member of Boodell & Domanskis, LLC, is a business litigator focused on meeting clients’ business objectives, helping them resolve disputes at the most opportune times. Max represents clients as both plaintiffs and defendants in a wide variety of forums. Additionally, Max notes that one advantage of practicing at a smaller firm, is that he is able to offer his clients high-quality, nimble representation at reasonable rates. To aid his clients in achieving their business objectives, Max approaches cases as though they will go to trial, utilizing his extensive trial experience. Max also counsels his clients, helping to identify and navigate legal risks to achieve their business goals and protect their competitive interests while managing and, where possible, avoiding the expense and uncertainty of litigation. 32
  32. 32. About The Faculty Gerald Meyer - gmeyer@mololamken.com Gerald Meyer’s practice focuses on complex business litigation, white collar criminal matters and investigations, and appellate litigation. He has represented businesses, senior corporate officials, and individuals in a broad array of subject matters, including securities litigation, class actions, antitrust law, and constitutional law. He has tried cases to verdict and drafted and argued dispositive, discovery, and evidentiary motions in trial courts across the country. He has argued appeals before the Seventh Circuit, and has briefed appeals in the Supreme Court of the United States and numerous courts of appeals. Before joining MoloLamken, Mr. Meyer was an associate with Skadden, Arps, Slate, Meagher & Flom LLP in Chicago. He has represented companies and individuals in a wide range of tax planning matters, including mergers and acquisitions, restructurings, securities offerings, and issues involving tax-exempt organizations. Mr. Meyer also served as a law clerk to Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit and to Judge G. Steven Agee of the United States Court of Appeals for the Fourth Circuit. 33
  33. 33. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 34
  34. 34. About Financial Poise 35 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/

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