WELCOME TO THE UNIT 3 SEMINAR This evening’s topic is the post interview work

WELCOME TO THE UNIT 3 SEMINAR

This evening’s topic is the post interview work.

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.

Case Evaluation & StrategyObjectivesFactsCauses of ActionPartiesTimelineWitnesses – experts?

Case Evaluation & StrategySettlement optionsJurisdiction and venue

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

Bluebook: Uniform Citation Bluebook: Uniform Citation For Legal ReferenceFor Legal Reference

How to Cite?How to Cite?

The order of the citation is important because each part identifies something in the reference that can lead the reader to the original source as you found it.

Each legal source has its own particular order to follow and specific information that must be included in the cite.

How to Cite Cases?How to Cite Cases?

United States v. MacDonald, 531 F.2d 196, 199-200 (4th Cir. 1976) United States and MacDonald are the parties 531 is the reporter volume number Federal 2nd (F.2d) is the reporter 196 is the first page of the case 199-200 is where you can find the quote (or info)

you are discussing 4th Circuit is the court that issued the opinion 1976 is the year the opinion was issued


Always underline or italicize case names: Smith Corp. v. Doe Inc.

The “v.” is lowercase, is followed by a period, and is not “vs.”: Paradise v. Parker,


Follow case names by a comma (which is not underlined or italicized): Arizona v. Fulminante,


Do not include parties' first names unless they are the name of a corporation: Baker v. John Smith Inc.,

If there is more than one plaintiff or defendant, use only the first party on each side.


Do not abbreviate United States in a case name: United States v. Michigan,

Some words may be abbreviated, but do not abbreviate them if they are the first word of a party. Straley v. Brookings Corp., Refer to the Bluebook for common abbreviations.

Federal Cases U.S. Supreme Court:

Cite to U.S. If it's not yet published there, cite to S. Ct., L. Ed.,

U.S.L.W., or LEXIS, in that order of preference. Do not include parallel cites:

Smith & Jones, Inc. v. Couch, 401 U.S. 313 (1985) NOT Smith & Jones, Inc. v. Couch, 401 U.S. 313, 897

S.Ct. 58, 128 L. Ed. 16 (1985)

Federal CasesFederal Cases

U.S. Circuit Courts of Appeal: Cite to F., F.2d, or F.3d. Note no space between the F. and the

number. Include the circuit in the cite:

Davis v. Everett, 102 F.2d 24 (9th Cir. 1954).

Federal CasesFederal Cases

U.S. District Courts: Cite to F. Supp. Note the space between the F. and the

Supp. Include the district in the cite:

Flanders v. Glissandi, 913 F. Supp. 885 (C.D. Cal. 1996)

You can find the district court abbreviations beginning on page 28 of the Bluebook

State CasesState Cases

Cite to the regional reporter – e.g., P.2d, A.2d, S.E.2d, and so forth.

Include the court in the cite: Hoyt, Inc. v. Irving-Johnson Corp., 425

P.2d 976 (Cal. App. 1976). Kearney v. Lovejoy, 777 P.2d 1024 (Cal. 1993).

You can find the court abbreviations beginning on p. 198 of the Bluebook

Cases Available Only on LexisCases Available Only on Lexis

Charlesworth v. Mack, No. 90-345, 1990 U.S. Dist. LEXIS 20837, at *6 (D. Mass. Dec. 4, 1990) Case number Year Database & number Paragraph Court and date of opinion

QuotationsQuotations

Always give the exact page of a quote (i.e. pinpoint cite), even when paraphrasing: "The Fourth Amendment protects people,

not places." Katz v. United States, 375 U.S. 76, 82 (1965).

StatutesStatutes

Federal Statutes: Cite to U.S.C. or U.S.C.A.

12 U.S.C. § 1986 (West 1996). 12 U.S.C.A. § 1986 (1996).

State Statutes: The form varies by state.

Cal. Pen. Code § 187 (West 1989). Neb. Stat. Ann. § 212-414(b) (West 1990). A.R.S. § 1-101 (2005).

See formats beginning on Bluebook p. 198

ConstitutionsConstitutions

Federal: U.S. Const. amend. XX U.S. Const. art. I, § 2, cl. 3

State: Cal. Const. art. XIV

Secondary SourcesSecondary Sources

Books: 21 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1006 (2d ed. 1987). Volume number (only if there is more than one volume) Full name of author(s) Name of publication (underlined) Page number or section number where info can be found Edition, editor (if any), year of publication)


Periodicals: Mary A. Jones, The Best of Trial Briefs, 28

Neb. L. Rev. 102 (2006). Full name(s) of author(s) Title of the article (underlined) Abbreviated name of the publication (can be

found on pg. 349 – Table T.13) Page on which info can be found Date of publication


Encyclopedias: 16 C.J.S. Evidence § 12 (1996).

Dictionaries: Black's Law Dictionary 826 (7th ed. 1998).

Court RulesCourt Rules

Federal: Fed. R. Civ. P. 12 (b)(6). Fed. R. Crim. P. 7(b).

State: Haw. Fam. Ct. R. 106. N.J. R. Evid. 1103 Utah R. Civ. P. 12(b)(6) See abbreviations beginning on p. 32

Electronic SourcesElectronic Sources

Douglas Gantenbein, Mad Cows Come Home, Slate, Jan. 5, 2004, http://slate.msn.com/id/2093396/index.html

Dunkin’ Donuts, http://www.dunkindonuts.com (last visited Dec. 18, 2003).

Miscellaneous PointsMiscellaneous Points

If a cite is in the middle of a sentence, follow it with a comma. In Yon v. Sambaed, 421 U.S. 119 (1992),

the Supreme Court held that . . . If a cite is at the end of a sentence,

follow it with a period. This decision was overruled in Ankeny v.

Burnside, 102 F.2d 65 (3d Cir. 1942).

Miscellaneous Points When you have a string cite (several cases

cited in a row) separate them with semicolons.

Cite federal cases first, then state cases, and cite higher courts before lower ones. Several courts have held that the sun rises in the

east. Caruthers v. Druid, 414 U.S. 9 (1992); Major v. Minor, 2 F. Supp. 1245 (S.D.N.Y. 1912); California v. Parker, 421 P.2d 198 (Cal. App. 1978).


To delete one or more words within a quote, use ellipses. "The time has come . . . to talk of many things."

Lewis Caroll, Alice in Wonderland 56 (1872). At the end of a sentence, follow the ellipses

by a period. “Mr. Silverstein’s cells had a concrete bed and

desk . . . .” Silverstein v. Federal Bureau of Prisons, 704 F. Supp. 2d 1077, 1081 (D. Colo. 2010)


Never start a sentence with ellipses. If you start a quote in the middle of a sentence, or

if you substitute letters or words in a sentence, use brackets.

"[M]y troubles seemed so far away." Paul McCartney, Yesterday 2 (1966).

“While housed on Range 13, [the inmate] was removed from his cell only for semi-annual reviews and infrequent haircuts.” Silverstein v. Federal Bureau of Prisons, 704 F. Supp. 2d 1077, 1084 (D. Colo. 2010)


When one authority is quoting from another, indicate it. "Citations stink." Brennan v. Marshall, 102

F. Supp. 1234, 1236 (D. Mass. 1984) (quoting Scalia v. Thomas, 313 U.S. 653, 655 (1976)).

For Further InformationFor Further Information

See The Bluebook, eighteenth edition as this is only a primer in formatting.