Civ. Lit

Week 1: Intro to Civil Litigation.

1.1 What is Civil Ligation?

Legal Process of Civil Litigation

• Includes not only a trial, but the entire process – from filing a complaint through appeal.

• Can be done through court or administrative process.

• Administrative process like a tribunal or a human rights commission.
• A subset of civil litigation because they involve many of the same causes of action, include the same parties/types of parties, and often lead to civil litigation by right (Some people/books do not consider administrative processes part of civil litigation)
• Will not focus much on administrative processing.

"Two or More"

• Civil cases must have at least 2 different people or parties, up to hundreds or thousands of parties.
• Joinder: Parties can be brought into a case through a process called "joinder" (that we will discuss next week)

• Class actions are a type of civil litigation that involve numerous plaintiffs who suffered a similar injury/harm by the same defendant(s). Usually, to bring a class action there must be at least 25 plaintiffs.

"Private Citizens"

• Civil cases are not "The State v [person]" or "The People v [person]".

• However, "private citizens" can mean a lot more than just an individual person: a corporation, company, organization, nonprofit, etc. can be a party

• The government can be a party BUT only in some other capacity.
• For example: the government can be sued as an employer:
• if a person who worked at the Department of Interior brings a claim against them.
• as a landholder if someone gets injured at a national park.
• as a party to a contract if Lockheed isn't paid pursuant to their agreement
 

1.2 General Types of Civil Litigation

Torts

→ Intentional Torts:

1. Something that a person has done either "on purpose" or with full control over their body,

2. that causes injury or harm to another person.

3. Includes things such as assault, battery, trespass, false imprisonment. Also includes non-physical actions such as defamation or intentional infliction of emotional distress

→ Negligence

1. Something that a person didn't mean to do but should have known better or taken steps to avoid.

2. Examples are products liability, slip-and-fall cases, medical malpractice, and personal injury cases

→ Breach of Contract

1. A failure to complete the terms of an agreement. The agreement can be written or verbal (with some caveats we will discuss). The person can either partially complete the terms or not complete them at all

2. Contract law gave rise to two large sub-areas of litigation:
1. Employment law (though not all employment cases will fall under this as not all employees have a contract); and
2. Family law, based on the vows that parties made to one another. This has spun off into its own complex area of law.

→ Rights Deprivation

1. Lawsuits for discrimination, including employment or educational discrimination. This includes sexual harassment, racial slurs, etc.

2. Constitutional challenges, like abortion, gay rights, and gun rights cases

• The Plaintiff is the person suing; the Defendant is being sued; California cases may also use Petitioner/Respondent.

• Civil cases are divided based on the amount of money at stake: Small Claims (Below $7,500) < Limited civil ($7,500-$25,000) < Unlimited civil (Above $25,000)

1.3 Introduction to Legal Reasoning (IRAC)

• An element is one item that the party bringing the claim must prove in order to prevail. Elements can come either from common law or from a statute (written law).

• Common law means that it has evolved from traditional legal concepts using previous rulings and court opinions.

IRAC: Issue, Rule, Analysis, Conclusion

→ Issue: The specific legal question you are trying to ask to ensure that the element is met. It should be detailed and tied to the relevant facts in your specific case.

→ Rule: How the element is defined by law

→ Analysis: Applying the facts to the rule.

1. Examples: Dan's hand made contact with Pat's shoulder. Pat did not want Dan to touch them and asked him not to. Dan's shove caused Pat to fall down and hurt their leg -OR- Ellen posted an ad online saying that she would sell her car for $5,000. She did not have any contact with Stu until he arrived at her home to buy the car and got angry that she had sold it to someone else. She made an offer, but Stu did not accept it until after the car had already been sold.

→ Conclusion: Based on the analysis, the ultimate answer to the question you posed as your "Issue"

→ Process/Tips

• Repeat this process for each element of each claim or defense. (This process is tedious but helps make sure that nothing is missed.)

• It is useful to get accustomed to breaking down cases in this manner as you start to think about things like discovery and trial preparation. We will also use it extensively over the next several weeks when we discuss common causes-of-action.

Week 2: Jurisdiction and Parties

2.1 Parties in Civil Litigation

Who can be a party?

• Plaintiff and Defendant; however, there can be more people involved in the case than just those two.

• Even if only one person ultimately causes harm, many people have contributed to that harm either by encouraging the Defendant's actions, by enabling:
• Defendant to act, or by
• Failing to stop Defendant from acting.

Agent

• In civil litigation, you will often come across "agents" or "agency relationships."

• IF the person who committed the harm did so while they were someone's agent, then the person on whose behalf they were working may also be liable for the harm. (That does not mean that the person knew or hoped that the agent would cause harm)
• IF the agent was acting outside of their authority, then the person overseeing the agent may not be liable.

Common Nucleus of Operative Facts (CNOF)

• Sometimes, there will be many parties with similar claims. Those cases might be joined together if they involve a common nucleus of operative facts (CNOF).

• CNOF refers to some of the following factors: The claims are for actions taken at the same time and in the same place, the actions causing harm were related to one another, perhaps continuous or causal. The types of harm were similar and caused by the same person.

• If a reasonable person could look at different claims and say, "these are the same event," then they likely involve a CNOF.

What is a Joinder?

• The general rule is that the Plaintiff gets to decide which parties are involved in a case. However, if another party not originally part of the case needs to be joined in order for the court to resolve the issues, or if another party has an interest in the case, the party can be joined to the case.

• The party can be joined on either side of the "v", but most often they will be an additional defendant.

• The party must have an actual interest in the outcome of the case, generally a financial one.

• The interest must still be based in the same CNOF.
• Most common examples:
• Joining an insurance company to an auto or medical malpractice claim
• Joining more sub-contractors or agents that the Plaintiff was unaware of.

Class Action

• A group of people who suffered the same or similar harm by the same defendants and whose cases involve the same CNOF.

• Generally, it must be at least 25 people.
• Examples in practice:
• 30 Plaintiffs applied for positions at TSA over a 2-year period and were rejected over lesser-qualified white candidates = a class
• 30 Plaintiffs applied for positions throughout the government and were rejected = probably not a class because each agency has their own systems and criteria for hiring.
• 30 Plaintiffs applied for positions at TSA over a 10-year period, during which the hiring criteria and processes changed several times = probably not a class because it's not the same hiring "system" or criteria that caused them to suffer harm, so not the same CNOF.

2.2 Case or Controversy

• To bring an issue to court in civil litigation, the parties must have a "case or controversy." So, what is a "case or controversy"?
• There must be a dispute, and the dispute must be governed by a law or laws (which may include statutes, regulations, or the constitution.)
• There must be a remedy of some kind that can be granted by a court or tribunal, whether that remedy is monetary or injunctive (halting an action).
• You cannot bring a case that simply asks the court to say who "is right." This is called a "declaratory judgment" and is — for all intents and purposes — not allowed.
• The case must also involve harm that has actually happened or is imminently happening. You cannot bring a case to stop someone from doing something in the future.

2.3 Jurisdiction

Where to bring a case

• In order to successfully bring a case, it needs to be filed in the right place and with the right court.

• In order to hear a case, a court must have both subject matter jurisdiction, personal jurisdiction, and be the proper venue.
• The ability of a court to hear and deal with a particular court is called "Jurisdiction."

Subject Matter Jurisdiction

• Not all courts can hear all types of cases.

• Some courts are specialized and only deal with one particular area of law.
• May be an administrative "court" or a judicial court (Examples: bankruptcy court, tax court, patent court)
• If case does not go to administrative or judicial court, then either state court or federal court will have subject matter jurisdiction.

• If there is not a basis for federal jurisdiction, then state court has subject matter jurisdiction. Courts prefer to hear both state and federal portions of a case together, so if there are both types of claims in a case, then the case can be heard in either federal or state court

Subject Matter Jurisdiction: Federal Court

• Federal courts cannot hear all cases. They can only hear cases that fall into one of three categories:

The federal government is a party	DOD breach of contract case with Lockheed Martin; IRS unfairly targeting right-wing groups for audit; DOE racial bias in hiring.
The case involves federal law	Title VII/Title IX cases; violations of constitutional questions; interpretation of FCC Title I and reclassification of ISPs ("net neutrality")
Diversity jurisdiction	See Below

Subject Matter Jurisdiction: Diversity Jurisdiction

• This is the least common way to get federal jurisdiction.

• The amount in dispute must be more than $75,000; AND all opposing parties must be from different states

• How do you define what state a person is from?
• For individuals, it's fairly easy: where they live and intend to remain. Not a vacation home, not a temporary apartment, not their parents' house, and not where the harm occurred.
• For companies, corporations, and organizations, it's much more difficult. The court can consider a few options:
• Location of incorporation AND Headquarters
• Location of “nerve-centers” (majority of their decision-makers)
• Location where the conduct the majority of their business

Personal Jurisdiction

• Courts can't go around enforcing laws that people never knew they were subject to. Therefore, the court needs to have personal jurisdiction over the parties in order to hold them to account.

• Has this party consented to this particular court having jurisdiction over their actions?

Personal Jurisdictions for Persons

• As with the question of domicile, this is something relatively easy to determine when talking about individual people.
• Did the act giving rise to the claim take place in that jurisdiction? (Example: a car accident in New Jersey can be filed in New Jersey.)
• Do the parties live there?
• If the case involves property, such as a trespass case or a land contract dispute, is the property located there?
• Did the parties agree to be bound by that state's laws in a contract? (Look at just about any terms-of-service agreement and you'll find a provision about election of laws that says what state will handle disputes.)

Personal Jurisdictions for non-persons

• For a court to have personal jurisdiction over a company/organization, the company must have engaged in some kind of activity in that state.

• What kind of activity? The Supreme Court has been arguing over that for 100 years!
• Having sales in the state
• Having "targeted contacts" in the state
• As a practical matter, if the company is in any way doing deliberate or knowing business in the state, the state probably has personal jurisdiction
• BUT it must be in the interest of "fair play and substantial justice" for a state to exercise jurisdiction over a non-resident defendant when weighed against the defendant's right to due process.

Why does it matter?

• In addition to "because the law says it matters," there are two very good reasons why personal jurisdiction is important:
1. You shouldn't be able to be hauled into court everywhere, when you had no idea what laws were there and didn't do anything to give the state in enforcing its laws against you.
1. For example, if you run a dispensary in California, selling only to people with California prescriptions with a California ID, it wouldn't be reasonable for Wyoming to bring a case against when you've never even been to Wyoming!
2. To discourage "forum-shopping," or purposely choosing the court most favorable to your case. For example, if California has very pro-plaintiff judges in employment cases, it wouldn't be fair for someone who works in Minnesota to sue their Minnesota-based employer in California.

Venue

• A Venue refers to the particular county or district in which the case is filed. You can also think of it as which specific courthouse you go to.

• Within a state, there will be 1-4 "districts" (for federal court) and numerous counties (for state court matters).

• Venue is usually based, at least initially, on where the action giving rise to the claim took place. So, if you were involved in a bar fight in San Francisco, San Francisco County will usually be the venue. If the bar fight was in Gilroy, the venue would be Santa Clara County.

• However, a party can request a change of venue based on lack of convenience.
• If a car accident between a resident of Hayward and a resident of Gilroy takes place in San Francisco, the parties might request a change of venue to Santa Clara County as San Jose is more centrally located for both parties.

Week 3 & 4: Deadlines and Calendaring

4.1 Why it matters

• Statute of limitations: How long after an event occurs can a party file a claim. For most types of actions, it is 2 or 3 years (depending on the type of claim). If the claim is not filed in time, then the wronged party cannot get relief.

• Once a case is started, there are steps that must be taken within a specific amount of time. If it is not taken, the court can throw out the case.

• Certain documents need to be filed in advance; if they're not received in time, the court does not need to consider anything in those documents – even if it's evidence that your side is correct!

• Because timing is so important, attorneys rely on paralegals to identify the dates on which certain tasks need to be completed. This is called "calendaring."

4.2 Where do deadlines come from?

• Statutory (rarest – mostly Statute of Limitations and setting aside rulings)

• Federal Rules of Civil Procedure (for cases in federal court)

• Rules of Court (for cases in California state court)

• Local rules (made by the specific court in which the case is being heard, such as the Northern District Court for California or Santa Clara County Superior Court)

4.3 Statute of Limitations

• The time limit between when an actionable event happens and when the person needs to file a claim. (We will talk more about what types of events are actionable in the coming weeks.)

• The clock begins ticking either when the action/harm occurs OR when the person discovered that the action/harm had occurred, whichever is later. However, it must be reasonable that the person discovered the harm after the fact!

• This is one of the few bright-line rules in law. If you do not file by the statute of limitations (SOL), the court cannot grant relief and must throw out the case.

4.4 How to Calendar

1. Which court is this in / which rules apply to this case?

2. Is this forward-counting or backwards-counting?

3. Is the time limit fewer than 10 days?

4.5 Service

• We will discuss service in more detail in a few weeks. For now, you need to know that service builds in days for calendaring.

• The date that a document was served is the date that it leaves the other side's hands - whether the document is placed in the mail, in an email, on a fax machine (if you're in 1992), or on opposing counsel's desk.

• If your office is serving the document, this backs up your deadline by the specified number of days.

• If your office received the document, then it provides you with additional days.

• Service Deadlines:
• Mail: 5 days
• Email: 2 days
• Fax: 2 days
• Personal service: 0 days

4.6 Things to Keep in Mind

• If the deadline would fall on a weekend or day that the court is closed, then the deadline is really the next date in the direction you're counting.

• Remember to add days for service unless you are personally serving everything.

• Your attorney may want additional dates calendared to be sure tasks are completed on time, such as calendaring when drafts are to be done, when the client should get a copy of the document, when to meet with a client, etc. Be sure to calendar those as well!

• These dates will seem tricky until you get practice with them. You will learn the deadlines that you use most often. Until then, don't be afraid to look them up.

4.7 Common Deadlines

Week 5: Overview of Civil Claims Part 1

5.1 Overview

Introduction

What You Will Learn

• Explain what a claim is in the context of civil litigation;

• Identify the elements of negligence

• Compare the elements of negligence and strict liability

What You Will Do

1. Review the Powerpoint presentation;

2. Watch the video about an infamous civil case;

3. Participate in the weekly discussion post.

5.2 Civil Claims and Strict Liability

What is a claim?

• A claim is made up of elements, or individual factors that must all be met in order for the court to grant relief.
• Some elements have their own sub-elements that must be met
• single element is not met, then relief cannot be granted.

Why Learn Elements of Claims as Paralegals?

• Context

• Understand which items are needed or important in the discovery process

• Help raise red flags with the attorney

• Understand the client and their needs

General Negligence

→ Elements

1. The defendant owed a duty of some kind to the plaintiff

2. The defendant breached their duty

3. The plaintiff suffered damage of some kind

4. The defendant's breach of duty caused the damage
1. The breach of duty was the actual cause of the damage; and
2. The breach of duty was a proximate cause of the damage.

→ Duty

• Generally speaking, we all owe each other a duty of reasonable care in our actions.

• Sometimes, there may be a special type of duty owed.
• Property owners have a duty to warn people on their property of hidden hazards
• Certain professionals have a duty to act as a professional in good standing in the community would act in a particular situation (e.g. doctors, lawyers)
• Children have a duty to act with a level of care commensurate with their age, intelligence, and experience

→ Breach

• Breaching the duty of care simply means that the person did not act with the level of care they owed to those around them.

• Breach does NOT mean that the person took a proactive step that caused the harm. Negligence can also mean the absence of taking reasonable preventative measures.

→ Harm Resulted

• Did someone get hurt in some way?

• will talk about types of damages next week, but for now know that the harm can be physical, psychological, monetary, or many other things.

→ Causation

• There are two sub-elements to causation, which some people treat as two separate elements.

• Actual cause, also called "cause-in-fact"
• Did the person's breach of their duty cause the injury/harm?
• "But-for" is a common test: but-for the person breaching their duty, would the harm have happened?

• Proximate cause
• Was the injury a foreseeable result of the breach of duty?
• Was there an independent intervening cause?

→EXAMPLE 1: CAR ACCIDENT

→ EXAMPLE 1: ANSWER

→ EXAMPLE 2: MEDICAL MALPRACTICE

→EXAMPLE 2: ANSWERS

Strict Liability

→ What is it?

• Unlike in "general negligence" cases, where you must prove that the person had a duty, breached the duty, and caused harm, in strict liability cases you must only prove that a harm resulted and that the person's actions (or lack thereof) caused that harm.

• Even if the person acted with the utmost care but harm occurred, they are still liable under strict liability.

• This is a much more plaintiff-friendly standard.

• However, strict liability cannot apply to all cases. It only applies to specific types of cases. Use the general negligence standards UNLESS the case falls within these particular strict liability categories.

Categories

→ CATEGORY 1: ANIMAL CASES

• Generally speaking, if a person is harmed by an animal that you own, you are potentially liable for that harm.

• the animal is of a type commonly kept in your community, then general negligence will apply.
• You owe a duty of reasonable care to your neighbors. This means that, if you know an animal bites, you are required to take all reasonable steps to keep it from harming anyone else.
• you do NOT know the animal bites, then you are not liable the first time it does so.

• the animal is NOT of a type commonly kept in your community, they are considered a "wild" animal. For wild animals, strict liability applies.

• What types of animals are common or "wild" will vary by community/area. A cow in downtown San Jose is probably going to fall under strict liability, while in Watsonville it might not.

→ CATEGORY 2: UNUSUALLY DANGEROUS ACTIVITIES

• Unusually dangerous activities are those activities that cannot be made completely safe no matter what precautions are taken. This is weighed against the "social utility" of the activity – meaning, how important it is that people be able to do it?
• Driving a car = high social utility
• Skydiving = low social utility
• Shooting guns = depends on where you live. In some areas, it has a high social utility, while in others it doesn't.

• a dangerous activity has high social utility, it will usually not be considered "unusually dangerous" and therefore will not be strict liability.

• an activity is deemed "unusually dangerous," then it will be strict liability.

Other Types

→PRODUCTS LIABILITY

• There are various types of products liability claims, with a wide variety of standards, depending on where in the process the problem occurred.

• They usually fall under strict liability, though some will look more like general negligence.

• Duty is almost always implied; if you're creating a product to be consumed/used by others, you absolutely have a duty to the people who buy the product – and usually to anyone in that product's vicinity.

→DESIGN DEFECT

• The first step in the process

• The product is manufactured and used as designed but there is a flaw in the design that causes harm.

• Example: an SUV that is top-heavy and prone to rollovers.

• Common questions that arise:
• Were there safer design alternatives? What would the cost be?
• what point did the company become aware of the design defect? Had there been previous complaints? Did they change anything in the design to make it safer?

→MANUFACTURING DEFECT

• The second step in the process

• The product was designed safely, but it was manufactured wrong, and that error created the harm.

• Example: A car assembly line that puts the brakes together incorrectly. If the brakes were installed correctly, the car would not be defective; the only problem is in the assembly process.

• Pretty much always going to be strict liability, because the manufacturer owes a duty to put the product together correctly and safely.

→MARKETING DEFECT/FAILURE TO WARN

• There was a known danger that was not communicated to consumers, OR

• There was a product limitation that was not communicated to consumers, OR

• The product was advertised as having abilities or uses that were not in accordance with what could be done safely.

• The manufacturer does not need to warn for "obvious" risks, but most companies take a "better safe than sorry" approach due to consumers being unable to appreciate even the most obvious risks. For example:
• not iron clothes while wearing them."
• not use hairdryer while in the shower"
• not leave the cab of recreational vehicle while it is motion" (because someone put it on cruise control and went back to make himself some coffee in the kitchen area)

→BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

• Any item being offered for sale has an implied warranty of merchantability – meaning the manufacturer is indicating that this item is safe to be sold and used as-intended.

• Usually this gets added on to most products’ liability cases as a bonus.

→BREACH OF WARRANTY OF FITNESS FOR PARTICULAR PURPOSE

• The seller knows that a buyer wishes to use the item for a particular purpose that is not what the manufacturer intended. The seller tells the buyer that the item is suitable (and, impliedly, safe) for that purpose, and the buyer experiences harm as a result.

• The least common type, if only because it is less about manufacturing and more about seller-side interactions, which are usually oral and not recorded.

• Examples:
• "Sure, you can strap this lawn chair to a push-mower to make a ride-on mower!"
• Off-label drug use (where a drug is approved for one use, such as schizophrenia, but is prescribed for other uses, such as chronic pain.)

Videos:

Week 6: Overview of Civil Claims Part 2

6.1 "INTENTIONAL" TORTS

• The biggest difference between those causes of action/claims and the ones we will discuss this week is INTENT.

• However, "intent' in torts/civil litigation can be very different from how you think of intent in your daily lives.

WHAT IS INTENT?

• Intent refers to the actual physical movement or action that was undertaken. It does NOT refer to the result.

• Intent means that the physical movement or action was volitional - the person put one foot in front of the other, the person swung their arm, the person displayed a weapon, the person spoke, the person did something.

• Even if the person didn't mean to commit the tort, did not mean to cause harm of any kind, if the person acted volitionally, then there is intent.

• When is there not intent?
• Someone is pushed
• Someone trips
• Someone has a medical condition that causes their body to move beyond their control

FORCIBLE TORTS

• A sub-set of intentional torts

• They involve a lot of people behaving outrageously, hitting people, kidnapping someone, running all over someone's property, stealing cars, etc.

• For each of these forcible torts, the intent requirement is the same: there must be conduct intending to cause and causing
• The person acted volitionally to commit the action, AND
• The action occurred
 

List of Torts

6.2 REMEDIES: Monetary Damage, Equitable Relief, Restitution

• The type of harm or damage occurred will dictate what types of remedies the court can provide.

• A remedy is a tangible or intangible benefit that the court can award in a civil action to compensate a party for harm or damage that they suffered as a result of the opposing party's actions.

• Remedies come in many forms, some of which are restricted based on the type of wrong that was committed. While remedies can be quite complicated, here are some basics to help you get started.

Types of Damages

• There are some things that money can't buy. For everything else...there's equitable relief.

• Money can't fully compensate the wronged party but some other type of action can, then the court may be able to order some other kind of relief "in the name of equity."

• There are several types:

About Remedies:

• You consider cases and remedies, try to think as broadly as you can about what your client has lost as a result of the action.

• Remember that you can add or stack as many remedies as you want.

• It is always better to ask for too many things and let the judge deny some of them, than to ask for too few and risk winding up with nothing.

→ Examples:

Week 7: Intake and Complaints

7.1 CLIENT INTERVIEWS

• The format of client interviews will vary in each office.

• Most offices, the admin or paralegal will conduct an initial discussion with the potential-client.

• Usually, the attorney will then meet with the potential-client to discuss the case in detail, including any legal questions that may be involved.

• Many offices, once the potential-client becomes an official client, the paralegal and/or junior attorney will then conduct a client interview to begin putting together the file and gathering information on the case.

INITIAL/PRE-DISCUSSION

• Occurs before the attorney meets with the potential client.

• Information gathered is usually more basic and high-level
1. Names/contact information of all parties
2. Whether a case has been filed already
1. When the event occurred
2. Very brief rundown of the type of case – e.g. medical malpractice, car accident, breach of contract, insurance fraud, discrimination, etc.

• Two types of "screening" or checks may occur:
1. This a type of case that our firm handles? - e.g. if the client was involved in a discrimination case and your firm only handles personal injury, there is no reason to set up a consult.
2. Conflicts check
• Attorney-client relationship is formed any time an attorney meets with a potential client to discuss a legal issue.
• Attorney cannot have an attorney-client relationship with parties whose interests are adverse to one another – either in this case or in a different case.
• Therefore offices need to check that the parties involved in a case will not create a conflict for the attorney – either with a current client or with someone with whom the attorney met for a consult.

CLIENT INTERVIEW

TIMEFRAME/TIMELINE

HARM SUFFERED

• Many clients don't think through all of the types of harm that we in the legal field know about. For example, they may just know that they have medical bills for their broken leg or that they can't work because of the accident.

• While you - as a paralegal – can't advise them about what remedies the attorney may seek, you can certainly ask questions to gather information for the attorney to build their case.

• Ask about a lot of different things/types of harm, for example:
• Doctor's appointments: copays, time off work, cost to get to the appointment, parking fees, deductibles, etc.
• Pain and suffering: are they in physical discomfort? How often? How severe? How does it limit their daily activities?
• Inability to work: what would their earnings be? Was their insurance covered by employer? Are they falling behind in their career advancement? Can they go back to the same job, or do they need to search for a new one? Can they go back to their old type of job, or do they need to retrain? How long does the doctor expect they can't work? Etc.

DOCUMENTATION

• Some clients come in with large folders of documentation; others don't bring any. Now is a good time to start sorting through what documents they have and make sure you have a copy to keep at the office and work from (either hard-copy or scanned).

• One thing that clients can do while waiting for the case to ramp up is start gathering additional documentation if they don't have it already. Medical records, police records, etc. Take time to get but don't require a subpoena is the requesting part is the person to whom the records pertain. Determine what they have already and what they should get.

BUILD RAPPORT

• Many firms, paralegals are the primary point of contact for client questions, concerns, or updates.

• The client interview is a good time to start building trust and rapport with the client, while also making clear what your role is - I.e. that you can't answer their legal questions but that you can answer certain procedural/logistical questions, and that you will pass any legal questions on to the attorney. (Now is also often a good time to make sure they know that you are cheaper than the attorney!)

• Show respect for the client at all times, do not judge them or their circumstances, and be as helpful as you can within the boundaries of your role.

RED FLAGS

• Sometimes there will be issues that you perceive in this meeting that you will need to pass along to the attorney.

• Examples:
• Their story keeps changing
• They say they can't walk or move but they seem to behave "normally" during the meeting
• They don't seem very credible to you
• There are documents that contradict what the client says

• Keep in mind that this is not your call to make, but your observations can be very helpful to the attorney going forward.

WHAT NEXT

• Some attorneys/offices will prefer that you write a memo or similar formal document outlining the information gained from the client. Others will simply want it uploaded in a particular way or put in the client's file.

• s generally useful to at least write a summary of what you received and what the client has said that they will obtain, if only for your own records.

• there are red flags, raise them with the attorney immediately. The attorney may disagree with you or may say things need to go forward anyway, but it is always better to address them sooner rather than later.

Assignments

About Assignment 3:

Links:

Week 8: Evidence Part 1

YOU SUSPECT SOMETHING, NOW PROVE IT

• "Discovery" in civil litigation refers to the legal process for formally requesting information from another party or from third parties that will help to support your case or position.

• Discovery can last anywhere from a few months to several years and remains an option as long as there are open issues over which the court has jurisdiction.
• Keep in mind that, if the court hears one issue separately from the others, discovery remains an option until all issues have been dealt with.
• However, if some issues have been dealt with – either because they were dismissed, settled, or decided in a separate trial – then the discovery can only pertain to those issues still active before the court.

DISCOVERY STANDARDS

BASIC RULES FOR DISCOVERY

TYPES OF DISCOVERY REQUESTS

• There are 4 main types of discovery: Interrogatories, Requests for Admissions, Requests for Production of Documents, Depositions

INTERROGATORIES

→ Open-ended written questions posed to a party.

• "Identify all bank accounts held in your name, alone or with someone other than Petitioner."

• you allege that Father has engaged in domestic violence?"

• These require only a written response, not supplemental documents.

→ Form Interrogatories

• Set of questions on a single judicial council form (DISC-1) that may or do apply in the majority of civil cases. There are additional forms (such as DISC-2) with more interrogatories that may apply in specific types of civil cases, such as employment cases.

• Parties can check the questions that they want the other side to answer.

• These do not count against a party's 35 interrogatories and generally cannot be objected-to.

→ Special Interrogatories

• Questions prepared by a party or their attorney that pertain more directly to the case.

• Questions need to be broken-down into separate sub-parts, all of which count towards the 35-question limit.

REQUESTS FOR ADMISSION

• Interrogatories are like short-answer, then Requests for Admissions are true/false questions.
• "Admit that you purchased the house at 1234 Main Street, San Jose, CA on March 4, 2017."

• The only answers to a Request for Admission are:
• Admit – yes, true, those facts as-stated are accurate. (e.g. yes, you bought that property on that date.)
• Deny – no, false, those facts as-stated are inaccurate. (e.g. no, you did not purchase a home there OR it was purchased at some very different time.)
• Qualified Admit - yes BUT, kind of. Either the facts as-stated are mostly accurate but one piece is incorrect, or the facts are accurate but missing a key contextual fact. (e.g. EITHER "I purchased that home on May 23, 2017, not March 4" OR "I purchased land at that address on March 4, 2017, but we built the house later.")

• You do NOT need to include the reason why the response is "Deny" or "Qualified Admit" in your Answer to Request for Admission. However, most attorneys will include a Special Interrogatory that reads something like: "For each Request for Admission to which you responded with anything other than an unqualified Admit, state each fact upon which you base that response."

REQUEST FOR PRODUCTION OF DOCUMENTS

• Asking for documents that you believe the other party either has in their possession OR has access to (such as a bank statement for accounts in their name)

• Responding party must exercise due diligence to obtain the documents - e.g. going to the bank to request statements if they don’t personally have them in a drawer somewhere, pulling docs off an online portal, etc.

• However, if they don’t have the docs - either because they never existed or because they got rid of them and can’t get another copy, then just say so.

• they do not have the documents but know who does, that must be disclosed in the response.

• the requesting party has just as much access to the documents as the other party, they have a responsibility to get it themselves. Ex: bank accounts in both names, mortgage records for joint mortgage, etc.

DEPOSITIONS

• The attorney will verbally ask the opposing party questions in person. They have up to 7 hours without leave of the court.

• The attorney can present exhibits to the opposing party and ask them questions about the exhibits as well.

• The attorney can also ask the witness to bring certain documents to the deposition, though it is usually not as useful because they don't have time to review the documents and formulate questions in advance.

• Even if the deponent's attorney objects to a question, the deponent must answer it anyway unless there is a very good reason why not.

• Depositions are always recorded by a court reporter (in a written transcript) and often recorded on video as well, in case they need to be used in court.

THIRD-PARTY DISCOVERY

• The previous slides, we talked about discovery that is by one party on another.

• However, there are certain types of discovery that are commonly used to get information from third parties – anyone who isn't a Petitioner or Respondent.

• Only 2 types of discovery can be used for third-parties:
• Requests for Production of Documents, referred to as "business subpoenas" or "subpoenas duces tecum"
• Depositions

SUBPOENAS DUCES TECUM

DEPOSITIONS OF A THIRD PARTY

• These are the same in principle to a deposition of a party but may look a bit different.

• These require a subpoena in addition to a Notice of Deposition, because otherwise the third-party deponent is not required to appear (since they are not part of the case).

• You can also serve a Subpoena to Appear and Produce. This means they must appear at the deposition for questioning and must bring documents with them, such as any reports or notes they've written pertaining to this case. Because the deponent is not a party, you can't easily request the documents from them in advance using a Request for Production as you would do for a party's deposition.

• Some common people you might see deposed in civil litigation:
• Experts retained by one side or the other
• Doctors to testify about the person's injuries or ability to work
• Police officers who can testify about the accident/incident in question

COMBINING AND UTILIZING TYPES OF DISCOVERY

• Serving both Requests for Admissions and Special Interrogatories, make sure that one Interrogatory reads something like:
• If you have answered any Request for Admission with anything other than an unqualified admission, state all facts upon which you have done so.

• Serving both Special Interrogatories and Requests for Production of Documents, make sure that one Request for Production of Documents reads something like:
• Please produce any and all documents upon which you relied in preparing your Response to Special Interrogatories, including but not limited to all documents that support your Responses.

• You can absolutely request the same documents from a party (via Request for Production) and a third-party (via Subpoena Duces Tecum), but it sends a signal that you don't trust the other side to comply with discovery laws.

RESPONDING TO DISCOVERY REQUESTS

• Only an attorney can decide how to respond to discovery requests, especially when it comes to objections.

• However, we as attorneys frequently rely on paralegals/legal assistants to help go through the discovery with the client, prepare draft answers, and compile the version that will go to the other side. For that reason, it may be helpful for you to understand what options there are when responding to discovery requests.

• Except for Requests for Admissions and Form Interrogatories, there are generally three ways to respond to each discovery request:
• Respond fully:
• Provide a complete answer. It may not be the answer the other side wants to hear, but it is a legitimate and accurate response.
• Object and do not respond:
• the question is objectionable and cannot be responded-to because of its defects (see next slide).
• Mainly used for relevance objections or undue burden (see next slide).
• Object but respond in part:
• the question is objectionable but there is still a portion of an answer that can be provided.
• Example: The question is unclear, but you think you know what it's asking, you can object and clarify which part you are answering.
• Example: If the question asks for a lot of information, some of which would be protected by attorney-client privilege, you can still provide the non-privileged information.

OBJECTIONS

• Only an attorney can decide what should be objected-to and what, if any, response should be given.

• However, you should be familiar with certain common objections and what they mean.

• Common objections in civil discovery:
• Relevance: It is not reasonably calculated to lead the discovery of admissible evidence. It does not have anything to do with any issues currently before the court. It asks about something that the other side may want to know but that isn't before the court.
• Privilege: It asks for information that is protected by a type of legally-recognized privilege, such as attorney-client or doctor-patient confidentiality
• Unduly Burdensome: It would require and unreasonable amount of effort to respond or would be cost-prohibitive. Frequently overused and rarely successful.
• Vague/Overbroad: Either it's too difficult to understand what they're asking for, or they're asking for an unreasonable amount of stuff. It can be just sloppy wording or deliberate, like asking for 20 years of financial records when the party was only employed there for 3.

VERIFICATIONS

• Responses to discovery requests must be made under penalty of perjury.

• that end, the party must attach and sign a verification stating that they have read the Response and that, to the best of their knowledge, it is accurate and complete.

• Most offices have a sample/form Verification in their files; if not, check in a discovery response that was previously sent out to get the wording.

WHAT IF DISCOVERY RESPONSES ARE INADEQUATE?