Chapter 6:Chapter 6:

Litigation DocumentsLitigation Documents

Summons, Complaint, AnswerSummons, Complaint, Answer&&

Discovery DocumentsDiscovery Documents

§6.1 The Summons§6.1 The Summons

ProcessProcess = = Summons & ComplaintSummons & Complaint

Service of ProcessService of Process Presenting the summons & complaint to Presenting the summons & complaint to

defendantdefendant

SummonsSummonsFulfills due process requirementsFulfills due process requirements

Noticing a defendant requires:Noticing a defendant requires: 1. original complaint and copy of summons filed with 1. original complaint and copy of summons filed with

courtcourt 2. summons issued by court2. summons issued by court 3. summons & complaint both served on defendant3. summons & complaint both served on defendant 4. process server must be over 18 & not a party to 4. process server must be over 18 & not a party to

actionaction 5. affidavit of service, called Return of Service, filled out 5. affidavit of service, called Return of Service, filled out

by process serverby process server 6. file Return of Service filed with the court6. file Return of Service filed with the court

Service by PublicationService by Publication Generally, requires court orderGenerally, requires court order

DISTRICT COURT OF CLARK COUNTYSTATE OF CONFUSION

JOHN DOE, )Plaintiff. )

vs. ) SUMMONS)

Phillip Duncan, )Defendant. )

_____________________ )

NOTICE!! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOURESPOND WIThIN 20 DAYS. READ THEINFORMATION BELOW.

TO THE DEFENDANT(S): A civil complaint has been filed by the Plaintiff against you for the relief set forth in the Complaint.

1. If you intend to defend this lawsuit, within 20 days after this Summons is served on you, exclusive of the day of service, you must do the following:

a. File with the Clerk of this Court, whose address is shown below, a formal written response to the Complaint in accordance with the rules of the Court with the appropriate filing fee.

b. Serve a copy of your request upon the attorney whose name is shown below.2. Unless you respond, your default will be entered upon application of the Plaintiff and this Court may enter a judgment

against you for the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the Complaint.

3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time.

4. The State of Confusion, its political subdivisions, agencies, officers, employees, board members, commission members and legislators, each have 45 days after service of this Summons within which to file an answer or other responsive pleading to the Complaint.

CLERK OF COURT

____________________________ By: _____________________________________Sue M. DailyAttorney for Plaintiff

§6.2 The Complaint§6.2 The Complaint

Five ElementsFive Elements::

1. Caption1. Caption 2. Jurisdiction2. Jurisdiction 3. Cause of Action3. Cause of Action 4. Ad Damnum Clause4. Ad Damnum Clause 5. Subscription5. Subscription

CaptionCaption

Court Hearing Matter Court Hearing Matter »»

Names of Parties Names of Parties »»

Title of DocumentTitle of Document»»

DISTRICT COURT OF CLARK DISTRICT COURT OF CLARK COUNTYCOUNTY

STATE OF CONFUSIONSTATE OF CONFUSION

JOHN DOE,JOHN DOE, ))Plaintiff.Plaintiff. ))

vs. vs. ))SUMMONSSUMMONS

))Phillip Duncan,Phillip Duncan, ))

Defendant.Defendant. ))____________________________ ))

JurisdictionJurisdiction Types of jurisdiction:Types of jurisdiction:

In personamIn personam Address of Address of ππ//ΔΔ

In remIn rem Place of controversyPlace of controversy

Quasi in remQuasi in rem

Note: Note:

Federal Complaints requireFederal Complaints require (Jurisdictional Statement)(Jurisdictional Statement)

1. Plaintiff1. Plaintiff is now and at all times relevant is now and at all times relevant has been a resident of El Paso County, has been a resident of El Paso County, Colorado.Colorado.

2. Defendant is now and at all times has 2. Defendant is now and at all times has been a resident of Kiowa County, been a resident of Kiowa County, Colorado.Colorado.

3. The accident in controversy occurred in 3. The accident in controversy occurred in Denver County, Colorado.Denver County, Colorado.

4. The defendant owns property in Denver 4. The defendant owns property in Denver County, Colorado, which is subject to County, Colorado, which is subject to attachment for damages awarded attachment for damages awarded plaintiff in plaintiff in Green v. Jones …Green v. Jones …

Numbering ParagraphsNumbering Paragraphs

Fact Pleading vs. Notice Fact Pleading vs. Notice PleadingPleading

Notice Pleading =Notice Pleading = Notice of claimsNotice of claims

Fact Pleading =Fact Pleading = Set forth prima facie case in Set forth prima facie case in

CMCM

Verified ComplaintsVerified Complaints Plaintiff attests to validityPlaintiff attests to validity

General AllegationsGeneral Allegations(Allegations All Defendants)(Allegations All Defendants)

I.I.Plaintiffs are and at all times have beenPlaintiffs are and at all times have beenresidents of Clark County, State of XXX.residents of Clark County, State of XXX.

II.II.Defendants are now and at all timesDefendants are now and at all timesrelevant have been residents of Clark relevant have been residents of Clark County, State of XXX.County, State of XXX.

III.III.On or about October 23, 3004, On or about October 23, 3004,

Defendant Defendant was driving a taxi, in which Plaintiff(s) was driving a taxi, in which Plaintiff(s) were passengers. Defendant, traveling were passengers. Defendant, traveling north on Sahara Blvd., was traveling 60 north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.m.p.h. in a 30 m.p.h. zone.

Cause of ActionCause of Action

Claim for ReliefClaim for Relief

Examples:Examples: NegligenceNegligence

»» Negligence per seNegligence per se Breach of ContractBreach of Contract TrespassTrespass Etc.Etc.

“ “Defendant had a duty to properly Defendant had a duty to properly obey traffic laws of the state and obey traffic laws of the state and county where the accident county where the accident occurred, and by failing to do so occurred, and by failing to do so acted in a negligent manner.”acted in a negligent manner.”

Ad Damnum ClauseAd Damnum Clause

= Prayer for Relief= Prayer for Relief

= Wherefore = Wherefore ClauseClause

Wherefore, Plaintiff prays for judgmentWherefore, Plaintiff prays for judgmentagainst the Defendant as follows:against the Defendant as follows:

1.1. For general damages in excess of For general damages in excess of $10,000.00 according to proof;$10,000.00 according to proof;

2.2. For loss of earnings and earning For loss of earnings and earning capacity according to proof;capacity according to proof;

3.3. For medical expenses, future For medical expenses, future medical expenses and all incidental medical expenses and all incidental expenses according to proof;expenses according to proof;

4.4. For interest from the date of For interest from the date of accident to the time of judgment;accident to the time of judgment;

5.5. For costs of suit incurred herein;For costs of suit incurred herein;6.6. For attorney fees incurred herein, For attorney fees incurred herein,

andand7.7. For such other and further relief as For such other and further relief as

the Court deems proper.the Court deems proper.

SubscriptionSubscription

Signature lineSignature line ____________________________________

Attorney NameAttorney Name

State Bar No. 89-119State Bar No. 89-119

Firm NameFirm Name

AddressAddress

Attorney for Attorney for Plaintiffs/DefendantsPlaintiffs/Defendants

§6.2 §6.2 Tort Causes of ActionTort Causes of Action

Tort = Civil WrongTort = Civil Wrong Intentional TortsIntentional Torts::

Defamation, Libel, SlanderDefamation, Libel, Slander Wrongful (False) ImprisonmentWrongful (False) Imprisonment Malicious Prosecution/Abuse of ProcessMalicious Prosecution/Abuse of Process Trespass & NuisanceTrespass & Nuisance AssaultAssault BatteryBattery MisrepresentationMisrepresentation ConversionConversion Intentional Infliction of Emotional DistressIntentional Infliction of Emotional Distress

Negligent Torts:Negligent Torts: Negligence: Duty, breach, damagesNegligence: Duty, breach, damages Negligence per se: Violation of lawNegligence per se: Violation of law Wrongful DeathWrongful Death

Contract Causes of ActionContract Causes of Action

Contract = Agreement between Contract = Agreement between partiesparties Breach of ContractBreach of Contract Bad FaithBad Faith Breach of Fiduciary DutyBreach of Fiduciary Duty

Establishing Causes of ActionEstablishing Causes of Action

General AllegationsGeneral Allegations

Jurisdictional Jurisdictional statementsstatements

FactsFacts

General Allegations General Allegations (Against All Defendants)(Against All Defendants)

I.I.Plaintiffs are and at all times relevant have Plaintiffs are and at all times relevant have

been residents of Clark County, State been residents of Clark County, State of Confusionof Confusion

II.II.Defendants are now and at all times Defendants are now and at all times

relevant have been residents of Clark relevant have been residents of Clark County, State of ConfusionCounty, State of Confusion

III. III. On or about October 23, 2004, Defendant On or about October 23, 2004, Defendant

was driving a taxi, in which Plaintiff(s) was driving a taxi, in which Plaintiff(s) were passengers. Defendant, traveling were passengers. Defendant, traveling north on Sahara Blvd., was traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.60 m.p.h. in a 30 m.p.h. zone.

IV.IV.At the intersection of Sahara and Paradise At the intersection of Sahara and Paradise

Road, Defendant failed to stop for a Road, Defendant failed to stop for a red light.red light.

V. V. Defendant’s taxi subsequently struck a Defendant’s taxi subsequently struck a

vehicle traveling south bound on vehicle traveling south bound on Paradise Road. The vehicle which was Paradise Road. The vehicle which was struck possessed the right of way.struck possessed the right of way.

§6.5 §6.5 The Claim:The Claim:3-Step Cause of Action3-Step Cause of Action

Caption Claim:Caption Claim:FIRST CLAIM FOR RELIEF:FIRST CLAIM FOR RELIEF:

NegligenceNegligence

3-Step Cause of Action3-Step Cause of Action:: Incorporation ParagraphIncorporation Paragraph

““Plaintiff hereby incorporates and realleges Paragraphs 1 through Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.”7, as though fully set forth at length herein.”

Cause of ActionCause of Action ““Defendant had a duty to properly obey the traffic laws of the state Defendant had a duty to properly obey the traffic laws of the state

and county where the accident occurred, and by failing to do so and county where the accident occurred, and by failing to do so acted in a negligent manner.”acted in a negligent manner.”

Alleges DamagesAlleges Damages ““As a result Defendant’s negligent conduct stated above, Plaintiff As a result Defendant’s negligent conduct stated above, Plaintiff

has suffered specific damages, including but not limited to medical has suffered specific damages, including but not limited to medical expenses and lost wages.”expenses and lost wages.”

Proper Court PaperProper Court Paper

Open line indicatorsOpen line indicators /// indicates that the last lines on the /// indicates that the last lines on the

page have been intentionally left blankpage have been intentionally left blank

Pleading PaperPleading Paper Numbered legal paperNumbered legal paper

Standard: 28 linesStandard: 28 lines Used for: pleadings, discovery, other court Used for: pleadings, discovery, other court

documentsdocuments

§6.8 §6.8 The AnswerThe Answer

Answer:Answer: Defendant’s response to ComplaintDefendant’s response to Complaint Answer each paragraph of the complaintAnswer each paragraph of the complaint

E.g.,E.g., “Defendant hereby admits allegations “Defendant hereby admits allegations contained in paragraphs 1, 4, 5 of Plaintiff’s contained in paragraphs 1, 4, 5 of Plaintiff’s Complaint.”Complaint.”

Responses:Responses: AdmitAdmit DenyDeny Neither admitted or denied due to lack of Neither admitted or denied due to lack of

knowledge/informationknowledge/information

Affirmative Defenses & CounterclaimsAffirmative Defenses & Counterclaims

Affirmative Defenses:Affirmative Defenses: Defendant admits that event occurred, Defendant admits that event occurred,

but denies liabilitybut denies liability No damages claimedNo damages claimed

Counterclaims:Counterclaims: Defendant’s claim for damages against Defendant’s claim for damages against

PlaintiffPlaintiff

§6.10 §6.10 DiscoveryDiscovery

Discovery = period to “Discover” facts Discovery = period to “Discover” facts Plaintiff serves discovery on defendantPlaintiff serves discovery on defendant Defendant serves discovery on plaintiffDefendant serves discovery on plaintiff

Purposes of discovery:Purposes of discovery: To clarify issuesTo clarify issues Eliminate surpriseEliminate surprise Limit the length of the trialLimit the length of the trial

All discovery is conducted under oathAll discovery is conducted under oath

Discovery TechniquesDiscovery Techniques InterrogatoriesInterrogatories

Written questionsWritten questions

Requests for AdmissionsRequests for Admissions Asks opponent to admit certain factsAsks opponent to admit certain facts

E.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on E.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on November 4, 2004 at 10:00 p.m.”November 4, 2004 at 10:00 p.m.”

Requests for Production and Inspection Requests for Production and Inspection of Documentsof Documents Asks other party for documents (medical records, Asks other party for documents (medical records,

etc.)etc.)

DepositionsDepositions Oral questionsOral questions

§6.12 §6.12 InterrogatoriesInterrogatories

Interrogatories = written questionsInterrogatories = written questions Limited Discovery:Limited Discovery:

Some states limit the number of interrogatories or provide Some states limit the number of interrogatories or provide form interrogatoriesform interrogatories

FormatFormat CaptionCaption InstructionsInstructions

Include instruction providing that interrogatories are Include instruction providing that interrogatories are continuing in naturecontinuing in nature

Interrogatories (Questions)Interrogatories (Questions)

Discovery is continuing in natureDiscovery is continuing in nature

§6.13 §6.13 Answers to InterrogatoriesAnswers to Interrogatories Procedure:Procedure:

Date Stamp InterrogatoriesDate Stamp Interrogatories Tickle date due (and prior)Tickle date due (and prior) Responding:Responding:

Attorney respondsAttorney responds Client responds by him/herselfClient responds by him/herself Client responds with helpClient responds with help

Objections:Objections: Interrogatories may be objected to based on Interrogatories may be objected to based on

relevance, burden, etc.relevance, burden, etc. Extension of TimeExtension of Time

Should be requested IN ADVANCE of due dateShould be requested IN ADVANCE of due date

§6.14 §6.14 Interrogatory TechniquesInterrogatory Techniques

Use formbooks & templatesUse formbooks & templates

Technique One:Technique One:Personal informationPersonal information

Technique Two:Technique Two:Financial informationFinancial information

Technique Three:Technique Three:FactsFacts

§6.16 §6.16 Requests for AdmissionsRequests for Admissions

Request for admission of factsRequest for admission of facts Establishes facts for trialEstablishes facts for trial E.g.,E.g., “Admit that you are the owner of a “Admit that you are the owner of a

blue Chevrolet, license no. 897 IUO”blue Chevrolet, license no. 897 IUO”

Responding to RequestsResponding to Requests Date stampDate stamp Tickle due dateTickle due date

If response is not timely (30 days), the If response is not timely (30 days), the request is deemed admitted!!!!request is deemed admitted!!!!

§6.17 §6.17 Request for Admissions: Request for Admissions: ResponsesResponses

AdmittedAdmitted DeniedDenied Neither admitted nor denied due to lack of Neither admitted nor denied due to lack of

sufficient information with which to respondsufficient information with which to respond Specific reason must be givenSpecific reason must be given

Neither admitted nor denied due to Neither admitted nor denied due to vagueness of the requestvagueness of the request

Omit a responseOmit a response NOT a good ideaNOT a good idea May be deemed admittedMay be deemed admitted

§6.18 §6.18 Request for Admission Request for Admission TechniquesTechniques

Use formbooks & templatesUse formbooks & templates

Technique One:Technique One:

Verify or corroborate interrogatoriesVerify or corroborate interrogatories

E.g.,E.g., Admit or that you have been an employee of Admit or that you have been an employee of

the U.S. the U.S. Postal Service for eight (8) yearsPostal Service for eight (8) years..

Technique Two:Technique Two:

Gives choices, or degrees of liabilityGives choices, or degrees of liability

Technique Three:Technique Three:

Force the party to commitForce the party to commit

§6.20 §6.20 Requests for ProductionRequests for Production

Production of:Production of: Documents (medical Documents (medical

reports, etc.)reports, etc.) Pictures, Pictures,

designs/drawingsdesigns/drawings ContractsContracts Corporate recordsCorporate records

Discoverable Materials:Discoverable Materials: Materials relevant to Materials relevant to

litigation that:litigation that: Do not violate 5Do not violate 5thth

amendmentamendment Are not privilegedAre not privileged

Request for Request for Production:Production:

21. Produce any and all 21. Produce any and all documents that documents that evaluate compliance evaluate compliance by the defendant with by the defendant with the terms of the July the terms of the July 16, 2001 contract 16, 2001 contract which is in dispute in which is in dispute in this litigation.this litigation.

§6.22 §6.22 Non-Discoverable MaterialNon-Discoverable Material

Non-discoverable material:Non-discoverable material: Attorney work-productAttorney work-product

Material produced in anticipation of litigationMaterial produced in anticipation of litigation Privileged informationPrivileged information

Attorney-client privilege:Attorney-client privilege: Applies to paralegal and other staff:Applies to paralegal and other staff:

1. Communication must be private1. Communication must be private 2. Must remain private2. Must remain private 3. Must fall within scope of paralegal’s duties3. Must fall within scope of paralegal’s duties

Production of Documents:Production of Documents: Withhold attorney-client documentsWithhold attorney-client documents Withhold document prepared in anticipation of litigationWithhold document prepared in anticipation of litigation

§6.23 §6.23 Responding to ProductionResponding to Production

Date Stamp RequestsDate Stamp Requests Tickle date due (and prior for preparation)Tickle date due (and prior for preparation) Producing Documents:Producing Documents:

Request documents from clientRequest documents from client Review them carefullyReview them carefully

For privileged matters, other non-discoverable docsFor privileged matters, other non-discoverable docs Review for discrepanciesReview for discrepancies

Motion to CompelMotion to Compel Other party may file a Motion to Compel for force Other party may file a Motion to Compel for force

answers/responses if answers are non-answers/responses if answers are non-responsive, privileged is claimed, responsive, privileged is claimed, etc.etc.

Request for Production: Request for Production: InspectionInspection

Inspect documents produced Inspect documents produced 1. Be thorough1. Be thorough 2. When in doubt, copy2. When in doubt, copy

Inspecting is like looking for a needle in a Inspecting is like looking for a needle in a haystack, so remember it’s an important job:haystack, so remember it’s an important job:

Your inspection could win or lose the case!!!Your inspection could win or lose the case!!!

Verification of DiscoveryVerification of Discovery

Answers to Answers to discovery must discovery must usually be verifiedusually be verified

VerificationVerification

State of NowhereState of Nowhere ))))

County of WhoCounty of Who ))

I, _____, being first duly sworn, deposes I, _____, being first duly sworn, deposes and says:and says:

That I am the Plaintiff in the above-entitled That I am the Plaintiff in the above-entitled action; that I have read the foregoing action; that I have read the foregoing ANSWERS TO INTERROGATORIES and ANSWERS TO INTERROGATORIES and know the contents thereof; the same is know the contents thereof; the same is true of my own knowledge except as true of my own knowledge except as to those matters therein stated on to those matters therein stated on information and belief and, as to those information and belief and, as to those matters, I believe them to be true.matters, I believe them to be true.

______________________________NameName

SUBSCRIBED AND SWORNSUBSCRIBED AND SWORN to before me this ___ day to before me this ___ day of ______.of ______.

________________________NOTARY PUBIC in and for NOTARY PUBIC in and for said County and Statesaid County and State

§6.24 §6.24 DepositionsDepositions

Depositions = oral questionsDepositions = oral questions

Setting:Setting: Both attorney’s presentBoth attorney’s present Court reporter transcribes testimonyCourt reporter transcribes testimony Deposition testimony is under oathDeposition testimony is under oath

§6.25 §6.25 Preparing for the DepositionPreparing for the Deposition

1. 1. Set the depositionSet the deposition

Contact attorneys, witness Contact attorneys, witness Agree on time and place (generally)Agree on time and place (generally)

Send follow-up letter memorializing agreementSend follow-up letter memorializing agreement 2. 2. Send Deposition Notice and SubpoenaSend Deposition Notice and Subpoena

Subpoena witness to be deposedSubpoena witness to be deposed 3. 3. Prepare deposition questionsPrepare deposition questions

Resources:Resources: PleadingsPleadings Discovery documentsDiscovery documents Research sources (Am.Jur. Pleadings and Practice, etc.)Research sources (Am.Jur. Pleadings and Practice, etc.)

§6.26 §6.26 Deposition Follow-UpDeposition Follow-Up

Transcript ReviewTranscript Review Deponent should review transcriptDeponent should review transcript Sign under oathSign under oath

Deposition IndexDeposition Index Alphabetical index of subjects covered in Alphabetical index of subjects covered in

depositiondeposition Generally a matter of computer softwareGenerally a matter of computer software

§6.28 §6.28 Deposition SummaryDeposition Summary

Deposition Summary = DigestDeposition Summary = Digest Purpose:Purpose:

Relate relevant materialRelate relevant material 2. Don’t alter the context of the material2. Don’t alter the context of the material 3. Avoid editorializing in the summary3. Avoid editorializing in the summary

Methods:Methods: 1. Topical Summary1. Topical Summary 2. Page-by-Page Summary2. Page-by-Page Summary