Civil Litigation

Provides basis of lawsuit In California, complaint must state facts

that constitute a c/a At trial, attorneys must prove facts that

constitute a c/a Existence of c/a determined by substantive

law: cases and statutes

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Facts that constitute a legally recognized right to relief under some substantive law

Each c/a has elements what has to be proved

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Def. Has duty of due care duty breached actual cause proximate cause damages

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Existence of Contract All P’s conditions precedent or concurrent

fulfilled or excused Breach by Def. Damages

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Time limit for filing a lawsuit

Found in Statutes Calif: CCP--

Date of Occurrence v. Date of Discovery

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An action against an attorney for a wrongful act or omission, other than actual fraud…shall be commenced within one year after the plaintiff discover, or through the use or reasonable diligence should have discovered, the facts constituting the wrong act or omission or four years from the date of the wrongful act or omission, whichever occurs first.

Do not count first day Do count last day If last day, holiday or weekend, next court

date Tolling of statute

Minority Def. Out of state

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Equitable equivalent of SOL

E.G.--Specific performance v. Breach of K

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Some cases require claims to be made within certain time

claim is not a lawsuit not filed in court but with agency times usually shorter than sol

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Public Agencies

Decedents

Health Care professionals--Notice requirement

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Suits against governmental agencies for P.I.--Within 6 months in Calif. In .U.S. --two years sometimes preprinted forms, sometimes not

How to identify Public Agencies

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Gov’t Code §§900 et seq/ Written Claim submitted to agency

name and address of claimant address for notices from agency date, place, circumstances of incident general description of damages/injury name of public employee if known smount claimed if under 10K

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Claim filed with governing board of agency Public agency has 45 days to act If public agency denies claim, Plaintiff has 6

months to file lawsuit from denial If public agency does not respond, claim

deemed denied after 45 days

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File petition to allow late claim with board If denied, file petition in court to allow filing

of lawsuit without filing claim Grounds for relief

mistake, inadvertence, surprise, excusable neglect plaintiff a minor or incapacitated

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Calif. Probate Code Judicial Council Form Presented w/I 30 days of notice to creditors

or 4 months of appt of representative

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90 day notice of intent to sue mailed to M.D. and Medical Board

Only required where plaintiff has lawyer Failure can result in disciplinary

proceedings against lawyer, does not affect case

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Calendaring system◦ Computerized or manual◦ How

Appearances: Court dates/ depositions/etc. Filing Dates: Complaint/discovery etc.

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Cost v. Value

Turning Down a Case Writing

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California rules of professional conduct Competency Frivolous Claims

Malicious Prosecution Conflict of Interest

Conflict Check waiver

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Communication with client Communication with Opposing party Confidentiality Honesty

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Types: flat fee/hourly/contingent

Written Fee Agreements Required in Calif. “Retainer Letter”

Fee Sharing

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Contingency Rate or hourly rate nature of work to be done how disbursements and costs affect

recovery respective duties of attorney and client fees negotiable--except med mal.

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Must be approved by court Sometimes before/sometimes after usually limited by court

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All Client Funds must be deposited here

Banks report overdrafts to State Bar

Interest ?

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