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Civil Litigation:  Process and Procedures              Chapter SixteenTrial Preparation – Postdiscovery to Pretrial
Pretrial Preparation      Determined there is a valid cause of action       or defense             Researched the legal ...
Legal Issues    Points of dispute on which law is applicable     and/or how the law should be applied           Procedur...
Inadequate Claim    Discovery reveals insufficient proof of the     claim           The π’s attorney withdraws the claim...
Summary Judgment    States there are no material facts at issue     (uncontroverted facts)    States the only remaining ...
Conflicting FactsCivil Litigation: Process and Procedures       © 2009 Pearson Education, Upper Saddle River, NJ 07458.   ...
Stipulations         Like a request for admissions, stipulations          remove agreed-upon issues from the trial      ...
Trial Memorandum I    A lawyer’s summary of the case, prepared as a     guide for the judge, pursuant to court rule or   ...
Elements of a TrialMemorandum I                     Jurisdiction, facts &       Identity/contact                      co...
Elements of a TrialMemorandum II                     Estimated length of          Special verdict                      t...
A More Formal Version    Signed by both attorneys, to become a     court order    May also include           Questions ...
Trial Brief    Prepared for court    Sets forth a legal argument & authority    Will usually address           Substan...
Duty of Candor    A lawyer shall not knowingly           Make a false statement of fact or law           Offer false ev...
Costs of Litigation    Parties are generally responsible for the cost     of litigation, win or lose    Exceptions inclu...
Contingency Fee Arrangement    Makes litigation possible for clients who     cannot muster a retainer for an hourly     c...
Cost/Benefit Analysis    The probability of winning the case    The amount of money to be won or lost    Whether the Δ ...
Client and Witness Preparation        Issues related to personal style that may         affect credibility              ...
Questions    Prepare the witness or party for the type     of questions to expect           Leading or narrative       ...
Pretrial Instructions    Subpoena all witnesses           Hostile – puts the power of the court behind            the re...
Witnesses “On-Call”    Usually possible in a very long trial    Witness must be near enough to appear     on short notic...
SubpoenaDucesTecumCivil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458. ...
Preparation of Exhibits     Organize documentary evidence            May need to produce paper copies, marked &         ...
EffectiveDemonstrative Evidence    Can be           PowerPoint or other electronic presentation           Overhead proj...
Jury Investigation        Begins with determining the profile of an         ideal, or sympathetic, juror for each case   ...
Extraordinary Preparation    Only cost-effective in a trial with a very     large judgment at stake (high damages)    Mo...
Trial Notebook      Hard copy (binders) or electronic       (litigation support software)      Contents vary in each cas...
Continuances      Once set, trials may be postponed if             Judge or an attorney is not available                ...
SanctionsCivil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.          ...
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Chapter 16 sixteen trial preparation post discovery to pre-trial

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Chapter 16 sixteen trial preparation post discovery to pre-trial

  1. 1. Civil Litigation: Process and Procedures Chapter SixteenTrial Preparation – Postdiscovery to Pretrial
  2. 2. Pretrial Preparation  Determined there is a valid cause of action or defense  Researched the legal claim  Identified the necessary elements  Careful investigation & evaluation  Perceived credibility of the client  Gathered enough admissible evidence to meet the burden of proof  Made settlement effortsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. Legal Issues Points of dispute on which law is applicable and/or how the law should be applied  Procedural issues – how the case is conducted  Substantive issues – does the law permit recovery? Claims – allegations that all the necessary facts exist to prove each elementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. Inadequate Claim Discovery reveals insufficient proof of the claim  The π’s attorney withdraws the claim  Either attorney makes a summary judgment motion (on claim or defense)  Motion for judgment on the pleadings Forces the attorneys to focus on the legal claims/defenses & elementsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. Summary Judgment States there are no material facts at issue (uncontroverted facts) States the only remaining dispute is one of law Argues that, according to the law, their side should win Can resolve the whole case or remove one or more issues from the trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. Conflicting FactsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. Stipulations  Like a request for admissions, stipulations remove agreed-upon issues from the trial  Facts that have been stipulated to are presented as uncontested to the trier of fact  Reduces court time & costs of litigation  Demonstrates the ability to cooperate, and underscores the remaining issues in controversyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. Trial Memorandum I A lawyer’s summary of the case, prepared as a guide for the judge, pursuant to court rule or the judge’s preference.Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. Elements of a TrialMemorandum I  Jurisdiction, facts &  Identity/contact contentions information of (identifies disputed witnesses & facts), legal issues & qualifications, authority summary of reports  Description of of expert witnesses damages, proof of  Discovery issues, settlement authority medical reports, desired stipulationsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. Elements of a TrialMemorandum II  Estimated length of  Special verdict trial questions  Schedule of proposed, numbered exhibitsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 11. A More Formal Version Signed by both attorneys, to become a court order May also include  Questions for voir dire  Proposed jury instructions  Evidentiary & equipment issues  Deposition testimony to be used in court Exact content varies from court to courtCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 12. Trial Brief Prepared for court Sets forth a legal argument & authority Will usually address  Substantive law issues (claims or defenses)  Procedural issues, e.g.,  Evidentiary issues  Jury instructionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 13. Duty of Candor A lawyer shall not knowingly  Make a false statement of fact or law  Offer false evidence Must also disclose a controlling case or statute, even if  It is adverse to that side’s position  The other side failed to discover itCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. Costs of Litigation Parties are generally responsible for the cost of litigation, win or lose Exceptions include  Statutory authority allows for a transfer (e.g., counsel fees awarded in a divorce, some civil rights actions)  Costs awarded in enforcing a court order  Costs awarded in defending a frivolous claim  By agreement of the partiesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 15. Contingency Fee Arrangement Makes litigation possible for clients who cannot muster a retainer for an hourly charge The percentage of the recovered amount pays for the time that would otherwise be billed The client remains responsible for the expenses of litigation, win or loseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 16. Cost/Benefit Analysis The probability of winning the case The amount of money to be won or lost Whether the Δ is judgment-proof Lawyers’ fees & other costs Loss of time by personnel (business-party) Long-term effects on relationships & reputation Availability & amount of prejudgment interest Aggravation & psychological costs Unpredictability of a trier of fact or lawCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 17. Client and Witness Preparation  Issues related to personal style that may affect credibility  Appropriate attire, hair, make-up  Appropriate demeanor  Testimony  Not conversational, under oath  One speaker at a time (for recording ease)  Stop at an objection & wait until instructed to answerCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. Questions Prepare the witness or party for the type of questions to expect  Leading or narrative  Review chronology of events  Review prior statements  Perhaps practice responding to a hostile examination, although “over-rehearsed” adversely affects credibility  Try to practice in the courtroom, if possibleCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. Pretrial Instructions Subpoena all witnesses  Hostile – puts the power of the court behind the request to appear  Friendly – makes it easier to make work arrangements, and enhances credibility (appearance is pursuant to a court order) Special arrangements may need to be made for witnesses who cannot appear at the outset & wait to be called much laterCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 20. Witnesses “On-Call” Usually possible in a very long trial Witness must be near enough to appear on short notice Need court permission Must be able to contact the witness quickly if the trial proceeds at an unexpected paceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. SubpoenaDucesTecumCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 22. Preparation of Exhibits  Organize documentary evidence  May need to produce paper copies, marked & numbered  May be using electronic material, with courtroom presentation equipment  Prepare demonstrative evidence  Photographs, charts, diagrams  May be prepared in-house or by outside services  May be posters, models, or electronic presentationsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. EffectiveDemonstrative Evidence Can be  PowerPoint or other electronic presentation  Overhead projection of transparencies or by document camera  Posters on easels Should be  Large enough to be seen  Acceptable as an accurate representationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. Jury Investigation  Begins with determining the profile of an ideal, or sympathetic, juror for each case  Jury pool is identified & reviewed  Online research  Public records  News archives, professional sites, etc.  Previous court involvement (π or Δ, liens, etc.)  Jury questionnaire  Voir direCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. Extraordinary Preparation Only cost-effective in a trial with a very large judgment at stake (high damages) Mock jury trial  Create a mock jury with the jury profile  Present the case  Jury critiques the testimony, presentation Helps fine-tune the presentation & validate the jury profileCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 26. Trial Notebook  Hard copy (binders) or electronic (litigation support software)  Contents vary in each case, but generally include  Copies of legal authority, jury instructions  Sections for each witness  Outlines for opening, closing, questions  Exhibits, and how they will be authenticated  Copies of discovery document to be used for impeachment (prior sworn statements)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  27. 27. Continuances  Once set, trials may be postponed if  Judge or an attorney is not available  Due to another trial running long  Serious illness  At the discretion of the court, but usually granted for good cause  If the attorney is “attached” or the trial is set with a “date certain,” continuances will probably not be grantedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 28. SanctionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28

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