Introduction to Law

Introduction to Law

Week 8

ReviewLying to the court

Try to talk out of lying/testifying Notify that you must disclose to the court If client does lie, you must disclose

Intake Interview Conduct an initial discussion with your client.

Develop a preliminary prediction of the total damages to evaluate the preliminary evidence and circumstances. Based upon this prediction: Encourage your client to drop the case. Take the case. Refer the case.

Civil ProcedurePropose Informal Settlement

Draft a demand letter setting out the claims and damages

Civil ProcedureDetermine Jurisdiction

Personal jurisdiction Subject matter jurisdiction Venue

Personal JurisdictionRefers to the ability of a court to

exercise power over a particular defendant or item of property Physical presence in the state State resident Consent (may be implied)

Subject Matter Jurisdiction Federal Question Jurisdiction

Arising under the U.S. Constitution, federal statute, regulation, executive order, or treaty

Diversity of Citizenship Only for civil suits Parties from different states Amount in controversy that exceeds $75,000. Federal question doesn’t matter

VenueThe designation of the proper district in

which to bring an actionVenue will depend on the nature of the

jurisdiction (I.e., whether federal question or diversity of citizenship)

Venue May be brought in a judicial district where any

defendant resides if all defendants reside in the same state

A judicial district in which a substantial part of the events leading to the lawsuit occurred

A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced

Civil ProcedureDetermine the Cause of Action and the

relief sought Usually some type of damages

Compensatory Punitive

Or Declaratory Relief Injunction Specific performance

ComplaintThe plaintiff's lawyer files the complaint

in court. It Establishes jurisdiction Contains a short and plain statement of the

claim States the relief requested

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

JOHN RUNDLETT, INC - Plaintiff

v

DONALD POSNER - Defendant

* * * * * CASE NO. 24-C-02-00380* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

COMPLAINT

      Plaintiff, John Rundlett, by his undersigned counsel, sues Defendant Donald Posner and, in support,states as follows:

COUNT I: NEGLIGENCE

1. Plaintiff John Rundlett is a resident of Baltimore City, Maryland.

2. Defendant Donald Posner is a resident of Anne Arundel County, Maryland.

3. On or about March 10, 2001, Defendant was operating a Bobcat backhoe (“the Bobcat”) on his property at 644 Snail Drive in Glen Burnie, Maryland.

4. The Bobcat was stuck and Defendant was unable to move it forward. Defendant called to Plaintiff to ask him for assistance. Plaintiff surveyed the land on which the Bobcat sat and was unable to determine why the Bobcat was stuck.

5. Plaintiff began to walk back to his property. Moments later, the Defendant, operating the Bobcat in a negligent and careless manner, hit the Plaintiff without warning, pining him up against an automobile, causing Plaintiff severe injury.

6. At all times herein mentioned, Plaintiff was acting in a reasonable, prudent manner.

7. It was the duty of the Defendant to use due care to watch where he was driving, to maintain a proper lookout, to reduce speed to avoid an accident, to maintain a proper distance between his vehicle and the Plaintiff, and to control his vehicle in order to avoid a collision.

8. Defendant breached that duty of due care by failing to use due care by watching where he was driving, failing to maintain a proper lookout, failing to reduce speed to avoid an accident, failing to maintain a proper distance between his vehicle and the Plaintiff, and failing to control his vehicle in order to avoid a collision with Plaintiff.

9. As a direct and proximate result of the negligence of the Defendant, Plaintiff has suffered physical injuries and mental anguish. Plaintiff has incurred expenses for medical care and treatment, medicines, nursing services, physical therapy, and other types of medical related attention. Plaintiff also has lost wages and will continue to lose such wages in the future. Plaintiff continues to suffer physical pain and discomfort from this accident, including a broken wrist that will not heal and two herniated discs at C4-C5 and C5-C6 that will require surgery. All the above damages were directly and proximately caused by the aforementioned negligence of the Defendant and were incurred without contributory negligence or assumption of the risk on the part of the Plaintiff. Plaintiff also did not have the opportunity to avoid this accident.

      WHEREFORE, the Plaintiff demands judgment against the Defendant for TWO MILLION DOLLARS ($2,000,000.00) plus interests and costs for Count I of Plaintiff’s Complaint.

ServiceThe plaintiff arranges for the defendant

to be “served” (i.e., notifies him that the complaint has been filed with the court). Service consists of a copy of the complaint and a summons.

ServiceDepending on state law, service may be

effected in several ways: By a sheriff or constable By a third party who has been certified by

the court By any non-party who is over the age of 18

Federal rule

ServiceWaiver

In some jurisdictions, including federal, a plaintiff may mail a copy of a complaint and summons to a defendant, and include a SASE and a waiver of service.

AnswerThe defendant must answer the

complaint or be liable (called a default judgment). Usually 20 days from the date you are

served But if you waive under the federal system

you get 60 days

AnswerThe answer is a description of the

events from the defendant's point of view in which he denies facts and/or liability.

Pre-Trial ConferencePrimarily used for scheduling and to

evaluate the chances for settlement.

DiscoveryGenerally, either side can request

discovery, and both sides reveal their case, work toward agreement of the facts, evaluate the case, and advise the client accordingly.

DiscoveryDiscovery consists of one or more of

the following: Interrogatories Request for Production of Documents Request for Admissions Depositions

Interrogatories - ExampleIf anyone investigated this matter for you, including medical experts, private investigators or insurance adjusters and state their name(s) and address(es), and state whether such investigation was reduced to writing. If said investigator obtained any signed statements or recorded statements, identify the person who gave the statement and attach to your Answers a copy of any said statement.

Req for Production of Docs - Example

1. Please produce all written reports of each person whom you expect to call as an expert witness at trial.

Pre-Trial ProceduresMotion for Summary Judgment

Judgment on the pleadings No question of fact, only of liability

Motion to Dismiss Failure to state a claim

Failed to make a “prima facie” case

TrialYou may request that the case be

decided by a judge (called a bench trial) or a jury. You may wish to request a judge if the

case is technical or if there is concern that the jury may be prejudiced.

Voir DireChallenges for causePeremptory challenges

Cannot be a pattern of challenges to exclude women or minorities

Trial ProceduresOpening StatementsDirect exam by plaintiffCross exam by defenseMotions by defense

Directed verdict

Trial ProceduresDirect exam by defenseCross exam by the plaintiffClosing argumentsJury instructionsVerdict and judgment

EvidenceTestimonialDirect Indirect or Circumstantial

EvidenceEvidence must be relevantWitness must be competent

Must be able to understand the oath

PrivilegesAttorney Client PrivilegeMarital PrivilegeClergy PrivilegeOther Possible privileges:

Accountant/client Doctor/patient Psychotherapist/patient

Post -Trial ProceduresJudgment Notwithstanding the Verdict

(JNOV) Judge can enter a judgment contrary to the

jury’s verdictAppeals

HypotheticalRuby is a citizen of AlabamaRoy, the driver of the truck, is also a

citizen of Alabama. United Construction, however, is a

California corporation.Ruby has approximately $100,000 in

damages so far, and anticipates another $50,000 in the future

HypotheticalWhat would Ruby’s claims be?

Is she trying to enforce a right under a federal law?

How much would her damages be? Is there diversity of citizenship?

HypotheticalWould you file Ruby’s case in state or

federal court? In which state?

HypotheticalsPeter, a resident of Kansas, is suing

Cheryl, a resident of California, for damages arising from a traffic accident that occurred in Maryland. He is asking for $250,000 in damages. Where would the suit be filed?

HypotheticalsMike, a resident of Idaho, is suing an

Idaho state highway patrolman for violation of his federal constitutional rights. He is suing under the federal civil rights act (known as Section 1983). He is asking for $25,000 in damages. Where would the suit be filed?

HypotheticalsMaribell, a resident of Ohio, is suing

Suzanne, a Colorado resident, for breach of contract. She is requesting $50,000 damages. Where would the suit be filed?

HypotheticalsZach, a Florida resident, is suing Dr.

Payne, also a Florida resident, for damages arising from malpractice. He is asking for $1,000,000 in damages. Where would the suit be filed?