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					INTRODUCTION TO AMERICAN LAW
         (LAW5HAL)

LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law
                 Professor Thomas Lundmark
                  10-12, 15-16 February 2010




            Prof. Dr. Thomas Lundmark
  Wednesday, 10 February 2010
  morning session: historical background
  reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77
  afternoon session: legal training
  reading assignment: Farnsworth pp. 15-35

  Thursday, 11 February 2010
  morning session: legal profession
  reading assignment: Farnsworth pp. 23-35
  afternoon session: judicial systems
  reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91

  Friday, 12 February 2010
  morning session: legislation
  reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106
  afternoon session: case law
  reading assignment: Farnsworth pp. 47-60

  Monday, 15 February 2010
  morning session: civil procedure
  reading assignment: Farnsworth pp. 99-110, 115-117
  afternoon session: constitutional rights
  reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120

  Tuesday, 16 February 2010
  morning session: fundamental rights reading assignment: Lundmark pp. 160-168
  afternoon session: equal protection
  reading assignment: Lundmark pp. 169-175, 179, 184-200



Prof. Dr. Thomas Lundmark
•     19th Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have the power to enforce this article by appropriate
      legislation." (Added to the U.S. Constitution in 1920.)
•     admonishment: An authoritative statement made to the jury by the judge regarding their conduct as jurors.
•     anonymous: When someone's identity is kept unknown.
•     ascertained: Determined; proved to be true.
•     bailiff: An officer from the sheriff's department who maintains courtroom order and jury custody. Sometimes also known as a deputy.
•     beyond a reasonable doubt: In a criminal case, the accused's guilt must be established "beyond a reasonable doubt." Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.
•     California Labor Code: A collection of laws regarding the broad spectrum of activities concerning the relationship between employers and employees.
•     California Rules of Court: The rules that regulate the practices and procedures in state court.
•     challenges: The law authorizes the judge and the lawyers to excuse individual jurors from service in a particular case for various reasons. If a lawyer wishes to have a juror excused, he or she must use a "challenge" for that juror.
      Challenges, or reasons to dismiss a juror, are of two kinds:
•     a. For cause - The law sets forth a number of reasons why jurors may be excused "for cause." For example, a juror who is related to or employed by one of the parties in the case may be excused for cause. There is no limit to the
      number of for cause challenges that may be used.
•     b. Peremptory - Each side in a case has a certain number of challenges that can be used without giving a reason. These are called peremptory challenges. Each side may ask the judge to excuse particular jurors. If a juror is
      excused, this does not imply something bad and does not mean the juror is not competent in any way. It frequently happens that a prospective juror will be excused in a certain case and later accepted in another. The number of
      peremptory challenges has been established by the Legislature.
•     civil case/civil suit: A lawsuit is called a civil case when it is between two or more individuals or corporations involved in a dispute and usually seeking a judgment awarding monetary damages.
•     common law: The body of law derived from judicial decisions, rather than from constitutions or statutes.
•     compulsory: Compelled; mandated by legal process or by statute.
•     Constitution: The fundamental law of our nation. It establishes the character and organization of America's sovereign power and the manner of its exercise. Also, the document that contains the guiding rules and principles, the
      descriptions of the power of the federal government, and the essential rights of the people.
•     controversy: A disagreement or a dispute that requires a definitive determination of how the law applies to the facts that are asserted to be true.
•     counsel: One or more lawyers who represent a client.
•     criminal prosecution/criminal case: The act of pursuing a criminal trial, where the state charges someone with a crime.
•     degree of proof: The amount of proof necessary to prove a case. In a criminal case, such proof must be beyond a reasonable doubt. In civil cases, the standard is proof by a preponderance of the evidence.
•     deliberations: This occurs after a trial when a jury goes into its assigned private room to think about and discuss evidence and testimony to help it reach a verdict.
•     directed verdict: After evidence has been presented and if no issue of fact remains for the jury to etermine, the judge will tell the jury what verdict to return. The jury must return that verdict.
•     disqualification: The condition of having been rendered unfit to serve.
•     eligible/eligibility: Every person who is at least 18 years of age, a citizen of the United States, and a resident of the respective county, able to understand the English language, not currently serving on any other jury, and who has
      not been convicted of a felony is eligible to serve as a juror (Code Civ. Proc., § 203).
•     exemptions/excuses/postponements: By law, no one who meets the basic criteria is automatically exempted from service. The law does provide for hardship excuses. Hardship is defined by law and includes no reasonable
      transportation, excessive travel, extreme financial burden, undue risk to physical property, physical or mental impairment for those over age 70, public health and safety, or no alternate care for another. If you believe you fall in any
      of these categories, contact your local jury office. Postponement may be available if you have health problems, a paid vacation, or other personal commitments that cannot be rescheduled at the time you are initially called. If you
      have already received one postponement during the past 12 months, you will probably have to come to court and speak to a judge to further delay your service.
•     evidence: Any type of legal proof presented at trial through witnesses, records, and/or exhibits.
•     exhibit: Document or material object produced and identified in court as evidence in a case. Each of these documents or objects is ordinarily given an identifying letter or number in alphabetical or numerical sequence when it is
      offered as evidence.
•     felon: A person convicted of a serious criminal offense punishable by imprisonment exceeding one year.
•     foreperson: Often called the "presiding juror." At the beginning of deliberations, the jury votes to select one of its members to be the foreperson. The jury foreperson's duty is to preside and see that discussion during deliberations is
      carried on in a free and orderly manner, that the case and issues are fully and freely discussed, and that every juror is given a chance to participate in the discussion. As the deliberations conclude, the foreperson counts the votes
      and completes and signs the verdict form.
•     impartial: Without bias, prejudice, or other preconception. The members of a jury should have no opinion about or vested interest in a case at the start of the trial and should base their verdict only on competent legal evidence
      presented during the trial.
•     instruction: The guidelines given by the judge at the beginning and end of a trial that explain what the law in the case is and how the jurors should evaluate the evidence.
•     jury pool: The group of prospective qualified jurors appearing for assignment to trial jury panels.
•     jury summons: The papers sent to potential jurors that require their attendance in court for possible service on a jury. California courts summon jurors to the courthouse no more than once in any given 12-month period.
•     jury selection: The process by which jurors for a particular trial are selected from the larger group of potential jurors summoned to the courthouse. The trial court judge sends a request to the jury assembly room for a panel of
      prospective jurors to begin the jury selection process in his or her courtroom. Once the jurors arrive in the courtroom, the judge and lawyers ask the jurors questions for the purpose of determining whether jurors are free of bias, or
      prejudice, or anything might interfere with their ability to be fair and impartial.
•     litigants: Any persons or groups engaged in a lawsuit.
•     one-day/one-trial: California courts have adopted the one-day or one-trial system. One day or one trial means that prospective jurors have to come to the court only once. If you are not chosen for a trial, then your term of service is
      complete. If you do serve on a jury, you will not be required to report for jury service for at least another 12 months.
•     pending: In process; not yet decided.
•     perjury: A false statement made willfully and knowingly while under oath in a court proceeding.
•     polled/polling: Calling the names of the jurors and having them state what their final verdict is before it is recorded.
•     postpone: To put off until later.
•     postponement: Permission to put off serving as a juror until a later time. A postponement may be available if you have health problems, a paid vacation, or other personal commitments that cannot be rescheduled at the time you
      are initially called for jury service. See also exemptions/excuses.
•     preponderance of the evidence: Greater weight of evidence, or evidence that is more credible and convincing. Refers to the amount of proof required to win in a civil case. It is that degree of proof that is more probable than not (lower
      standard than that required in criminal cases).
•     propound: To offer for discussion or consideration.
•     prosecutions: Criminal legal proceedings.
•     prospective: Likely to come about, relating to or effective in the future.
•     reimbursement: Specific payment for out-of-pocket expenses. For example, the state pays jurors $.15 a mile (one way) for travel.
•     sequestration: A sequestered jury is usually housed together at night in a hotel and prohibited from contacting people outside of the court. Sequestration rarely occurs and is meant for jurors' protection. It may be used to keep
      jurors away from the media during a controversial trial where widespread news coverage could influence a juror's decision. In rare cases, there may be attempts to influence the jurors' deliberation through threats.
•     source list: The list or lists from which citizens are selected to receive a jury summons in California. Potential jurors are selected randomly from the voter registration list and the Department of Motor Vehicles' lists of drivers and
      identification card holders.
•     subpoena: A subpoena is an official order to attend court at a stated time. The most common use of the subpoena is to summon witnesses to court for the purpose of testifying in a trial.
•     testimony: Evidence given by a witness under oath.
•     unable to serve: If you have health problems, a paid vacation, or other personal commitments that cannot be rescheduled at the time you are initially called, a postponement may be available. If you have already received one
      postponement during the past 12 months, you will probably have to come to court and speak to a judge to further delay your service.
•     unanimous: There are 12 people on a jury trial, except when the parties in civil or misdemeanor cases agree that there may be fewer than 12. A decision is unanimous when the full jury in a criminal case or three-quarters of the
      jury in a civil case have agreed upon the verdict. Once a verdict has been reached, the jury is brought back into the courtroom. The verdict must be in writing, signed by the foreperson, and must be read to the jury by the court
      clerk or the judge.
•     verdict: The formal decision or finding made by a jury, which has been impaneled and sworn for the trial of a case, and reported to the court.
•     voir dire: Translated from French, the legal phrase means "to speak the truth" or "to see them say." Voir dire is the preliminary examination of prospective jurors by a judge or lawyer to decide whether that person can serve on a
      particular jury.
•     witness: One who can give a firsthand account of something seen, heard, or experienced.
    Prof. Dr. Thomas Lundmark
                                  lecture outline:
                                stages of litigation
                            •   pleadings
                            •   discovery
                            •   pre-trial
                            •   trial
                            •   evidence
                            •   appeal




Prof. Dr. Thomas Lundmark
                            pleadings: definition


           • „allegations of law and fact‟
             or
           • „factual and legal contentions of the parties‟




Prof. Dr. Thomas Lundmark
                            pleadings: basic kinds

          • complaint, petition, claim
          • answer, response, demurrer: motion
            to dismiss




Prof. Dr. Thomas Lundmark
                            pleadings: complaint
• Cal. Code of Civ. Proc. § 425.10. (a) A
  complaint … shall contain both of the
  following:
  (1) A statement of the facts constituting the
  cause of action, in ordinary and concise
  language.
  (2) A demand for judgment for the relief to
  which the pleader claims to be entitled. …
  [W]here an action is brought to recover actual
  or punitive damages for personal injury or
  wrongful death, the amount demanded shall
  not be stated ….

Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
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Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                period for commencement of an
                  action/period of limitation
 • Cal. Code Civ. Proc. § 335. The periods prescribed for
   the commencement of actions other than for the
   recovery of real property, are as follows:
 • Cal. Code Civ. Proc. § 335.1. Within two years: An
   action for assault, battery, or injury to, or for the
   death of, an individual caused by the wrongful act or
   neglect of another.




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                            pleadings: styles
• notice pleading: “short and plain statement of
  the claim showing that the pleader is entitled
  to relief”
• code pleading (“cause” or “ultimate facts”)
• common law pleading: forms of action
  (virtually obsolete)




Prof. Dr. Thomas Lundmark
        pleadings: judgment on the pleadings
         • final termination of the action (i.e.
           judgment) without the taking of
           evidence
         • based solely on the pleadings
         • which show there are no issues of fact
           in dispute ('no triable issues of fact')
         • Which style of pleading lends itself
           most easily to JOP?



Prof. Dr. Thomas Lundmark
                              lecture outline:
                            stages of litigation

                             •   pleadings
                             •   discovery
                             •   pre-trial
                             •   trial
                             •   evidence
                             •   appeal




Prof. Dr. Thomas Lundmark
                            discovery: in general
       • definition: exchange and investigation of
         evidence (usually) before trial
       • purposes
          • facilitate settlement
          • facilitate trial ('avoid surprises at trial'
            that could cause delay)




Prof. Dr. Thomas Lundmark
                            discovery devices

•    interrogatories (almost always plural)
•    deposition
•    request to produce (documents and things)
•    order for physical or mental examination
•    request for admissions




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                            discovery devices

•    interrogatories (almost always plural)
•    deposition
•    request to produce (documents and things)
•    order for physical or mental examination
•    request for admissions




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                            deposition




Prof. Dr. Thomas Lundmark
                            deposition

  • questions and answers as if at trial
  • taken before a shorthand or 'court' reporter,
    who prepares a 'transcript', i.e., booklet
  • no judge present (exception: Clinton)
  • testimony taken under oath, subject to
    penalties for perjury




Prof. Dr. Thomas Lundmark
                            deposition
    • other sanctions may also be imposed, such
      as a finding of contempt of court (summary
      punishment by judge)
    • Clinton was fined $90,000 for lying at his
      deposition, and was ordered to pay the
      court's expenses
    • Clinton was also disbarred from the
      practice of law by the Supreme Court of
      Arkansas


Prof. Dr. Thomas Lundmark
                            discovery devices

• interrogatories (almost always plural)
• deposition; also witness
• request to produce (documents and things);
  subpoena of witness
• order for physical or mental examination
• request for admissions




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
California e-discovery Act
• California Code of Civil
Procedure § 2016.020 et seq.
• in harmony with Federal Rule
34 FRCP
• e-documents shall be provided
in a reasonably usable form
• Responding party may object
on grounds of burden or
inaccessibility, but bears burden
of proof
• applicable to third-parties
pursuant to subpoenas



Prof. Dr. Thomas Lundmark   02.02.2011
                            discovery devices

• interrogatories (almost always
  plural) deposition
• request to produce (documents and things)
• order for physical or mental examination
• request for admissions




Prof. Dr. Thomas Lundmark
                            discovery devices
• order for physical or mental examination is
• used almost exclusively in personal injury
  actions
• almost never ordered, since failure to comply
  with a formal request will bring serious
  consequences for the plaintiff




Prof. Dr. Thomas Lundmark
                            discovery devices

•    interrogatories (almost always plural)
•    deposition
•    request to produce (documents and things)
•    order for physical or mental examination
•    request for admissions (opportunity to recover
     attorneys‟ fees in cases where these would
     otherwise not be awarded)




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                                  lecture outline:
                                stages of litigation
                            •   pleadings
                            •   discovery
                            •   pre-trial
                            •   trial
                            •   evidence
                            •   appeal




Prof. Dr. Thomas Lundmark
                            pre-trial

• summary judgment: “no genuine issue as to
  any material fact and … the moving party is
  entitled to judgment as a matter of law”
• pre-trial conference
• settlement
• alternative dispute resolution




Prof. Dr. Thomas Lundmark
                              lecture outline:
                            stages of litigation

                            •   pleadings
                            •   discovery
                            •   pre-trial
                            •   trial
                            •   evidence




Prof. Dr. Thomas Lundmark
                            trial (if there‟s a jury)

      • (jury selection): actually DE-selection
      • opening statements: limited to facts
      • plaintiff‟s case in chief: witnesses
      • defendant‟s case in chief
      • rebuttal
      • summation/ closing arguments: facts
        and law
      • (instructions to the jury)
      • (verdict)
      • judgment

Prof. Dr. Thomas Lundmark
             selection and orientation of jurors




Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures
Juror Eligibility All U.S. citizens who are over the age of 18, a resident of the county that
issued the jury summons, and able to understand the English language are eligible to
serve on a jury in the state of California. Of these people, only convicted felons, meaning
anyone who has been found guilty of a serious crime, cannot serve.
Juror Summons Once you have received a jury summons, read the instructions
carefully. Currently, each county uses a slightly different summons that asks people to
respond in different ways. There will always be a phone number on the summons. If you
have any questions, contact the jury office of the court that summoned you at that phone
number. Be sure to bring your summons with you when your report to court.
Postponing Service If you are unable to serve during the time requested on your
summons, contact your local jury office to ask for a one-time-per-summons
postponement. You can ask for a postponement until a reasonable time in the future
when you can arrange your schedule so that jury service is convenient for you. You may
have to appear at the courthouse in order to tell the judge the reasons why you cannot
serve. Please be prepared to come to court at the time and place the summons says.




  Prof. Dr. Thomas Lundmark
 •    Excuses for Undue Hardship In certain serious cases, the jury commissioner or the judge
      may excuse you for up to one year. These are called undue hardship cases. If you have a
      personal situation that stops you from being able to serve, write that reason on your
      summons and mail it back or call the local jury office. When listing reasons such as medical,
      job, or dependent care issues, be prepared to receive a postponement and not an excuse.
 •    Disqualification A person is disqualified or temporarily excused if he or she is a felon,
      nonresident, noncitizen, under a conservatorship, or a peace officer. If you fall into one of
      these categories, contact your jury office to explain your situation.
 •    Job and School Your employer must allow you time off to serve on a jury. This is the law.
      Section 230 of the California Labor Code is intended to prevent any employer from firing or
      harassing an employee who is summoned for jury service and who has given reasonable
      notice of when the employee is to serve. Notice is generally considered reasonable if it is given
      as soon as possible once the employee has been summoned. The California Education Code
      (§§ 44037 and 8 7036) and Rule of Court 5.5(d)(7) protect teachers, other school employees,
      and students as well. If you are harassed or fired, contact your local jury office or the judge
      assigned to your trial. If your employer has harassed you because of your service on a jury,
      contact the Department of Industrial Relation's Division of Labor Standards Enforcement.
      You must complete a complaint form and turn it in to the Labor Board within six months
      from when the harassment happened.
 •    Remember to keep any certificate issued by the judge to prove that you served and for your
      employer's records.
 •    Juror Fees California allows payment of $15 a day plus mileage of 15 cents per mile one way
      for jury service. For reimbursement, ask your local jury office or the bailiff in the courtroom
      for more specific information for your local court.
 •    Although this is only a fraction of the cost of each juror's time, the courts are working with
      the Legislature and the Governor to increase juror fees. For more information about
      innovations and improvements to the jury system, see the section on Jury System
      Improvement.



Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures

Juror Summons Once you have received a jury summons, read the instructions
carefully. Currently, each county uses a slightly different summons that asks
people to respond in different ways. There will always be a phone number on the
summons. If you have any questions, contact the jury office of the court that
summoned you at that phone number. Be sure to bring your summons with you
when your report to court.




 Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures

Juror Eligibility All U.S. citizens who are over the age of 18, a resident of the
county that issued the jury summons, and able to understand the English
language are eligible to serve on a jury in the state of California. Of these
people, only convicted felons, meaning anyone who has been found guilty of a
serious crime, cannot serve.




 Prof. Dr. Thomas Lundmark
                            tom gets jury duty




jury duty in Long Beach, California




Prof. Dr. Thomas Lundmark
• Hawai`i State Judiciary - General Information
  - Jury Service - Juror Orientation Video
•    https://www.courts.state.hi.us/general_information/jury/juror_orientation_
     video.html
• Pursuit of Justice II, Connecticut Network
• http://www.ctn.state.ct.us/videos_educationa
  l.asp




Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures

Postponing Service If you are unable to serve during the time requested on your summons,
contact your local jury office to ask for a one-time-per-summons postponement. You can ask
for a postponement until a reasonable time in the future when you can arrange your schedule
so that jury service is convenient for you. You may have to appear at the courthouse in order
to tell the judge the reasons why you cannot serve. Please be prepared to come to court at
the time and place the summons says.

Excuses for Undue Hardship In certain serious cases, the jury commissioner or the judge
may excuse you for up to one year. These are called undue hardship cases. If you have a
personal situation that stops you from being able to serve, write that reason on your summons
and mail it back or call the local jury office. When listing reasons such as medical, job, or
dependent care issues, be prepared to receive a postponement and not an excuse.

Disqualification A person is disqualified or temporarily excused if he or she is a felon,
nonresident, noncitizen, under a conservatorship, or a peace officer. If you fall into one of
these categories, contact your jury office to explain your situation.



 Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures

Job and School Your employer must allow you time off to serve on a jury. This is the law. Section
230 of the California Labor Code is intended to prevent any employer from firing or harassing an
employee who is summoned for jury service and who has given reasonable notice of when the
employee is to serve. Notice is generally considered reasonable if it is given as soon as possible
once the employee has been summoned. The California Education Code (§§ 44037 and 8 7036)
and Rule of Court 5.5(d)(7) protect teachers, other school employees, and students as well. If you
are harassed or fired, contact your local jury office or the judge assigned to your trial. If your
employer has harassed you because of your service on a jury, contact the Department of Industrial
Relation's Division of Labor Standards Enforcement. You must complete a complaint form and turn
it in to the Labor Board within six months from when the harassment happened.

Remember to keep any certificate issued by the judge to prove that you served and for your
employer's records.




 Prof. Dr. Thomas Lundmark
State of California Jury Eligibility and Procedures

Juror Fees California allows payment of $15 a day plus mileage of 15 cents per mile one
way for jury service. For reimbursement, ask your local jury office or the bailiff in the
courtroom for more specific information for your local court.

Although this is only a fraction of the cost of each juror's time, the courts are working with
the Legislature and the Governor to increase juror fees. For more information about
innovations and improvements to the jury system, see the section on Jury System
Improvement.




 Prof. Dr. Thomas Lundmark
                            use of juries in civil cases




Prof. Dr. Thomas Lundmark
                                  Tort trial cases terminated in
                            U.S. district courts, 2002 – 2003 (two years)


          Total number tort cases
                                                                            98,786
            concluded:


          Jury and bench tort trials                                         1,647


          Tort trials with plaintiff
                                                                              704
            winners


          Tort trials with monetary
                                                                              590
            awards


          Median damage awards                                         $201,000

Prof. Dr. Thomas Lundmark
                federal courts

                Of the 98,786 tort cases that were terminated in U.S. district
                courts during fiscal years 2002 and 2003, 1,647 or 2% were
                decided by a bench or jury trial.
                 The total number of tort cases - including settlements,
                dismissals, and verdicts - concluded in U.S. district courts has
                varied widely throughout the 1990's and early 2000's. The
                changes in federal tort caseloads reflect the strong influence of
                product liability cases.
                 After reaching a peak of 3,600 trials in 1985, the number of tort
                cases concluded by bench or jury trial has declined by nearly
                80%.
                 The percentage of tort cases concluded by trial in U.S. district
                courts has also declined from 10% in the early 1970s to 2% in
                2003.
                 From 1990 to 2003, the number of non-asbestos product
                liability trials concluded in U.S. district courts has declined by
                about two-thirds from 279 to 87 trials. During this period,
                plaintiffs prevailed in nearly a third of non-asbestos product
                liability trials.


Prof. Dr. Thomas Lundmark
              • Motor vehicle claims comprised 20% of tort trials, product
              liability 13%, and medical malpractice 10%.
              • Diversity of jurisdiction was the jurisdictional basis for
              nearly two-thirds of tort trials concluded in U.S. district
              courts in 2002 - 2003.
              • A judge or jury found for the plaintiff in about half of tort
              trials concluded in U.S. district courts during 2002- 2003.
              • Plaintiffs prevailed less frequently in trials involving
              medical malpractice (37%) or product liability (34%) issues
              compared to motor vehicle accident cases (57%).
              • Plaintiffs who prevailed in tort trials concluded in 2002-
              2003 received an estimated median damage award of
              $201,000.
              • The tort case categories with the highest estimated median
              damage awards included medical malpractice ($600,000)
              and product liability ($350,000) cases.
              • Juries decided 71% of tort cases brought to trial.
              • Plaintiffs won more often in judge compared to jury trials.
Prof. Dr. Thomas Lundmark
             Civil trials in the 75 largest counties, 2001

                                                   Estimated number of
                                                      tort, contract and real
    Dispositions                                      property trials

    Total                                                               11,908
    Jury trial cases                                                      8,859
              Plaintiff winners                                           4,715
              Punitive damage awards                                       260
    Bench trial cases                                                     2,828
              Plaintiff winners                                           1,849
              Punitive damage awards                                            79
    Other trial cases (directed verdicts,
       judgment not withstanding the verdict,
       and jury trials for defaulted defendants)                           221
              Plaintiff winners                                                 95
              Punitive damage awards                                            16


Prof. Dr. Thomas Lundmark
                                       state courts

During January and December 2001, juries decided 74% (8,859) of the nearly 12,000
    civil trial cases disposed of by State courts of general jurisdiction in the Nation's 75
    most populous counties.
-- Tort cases (93%) were more likely than contract cases (43%) or real property cases
    (27%) to be decided by jury trial.
    -- In 53% of jury trial cases, the jury found in favor of the plaintiff and awarded in
    the 12 month period an estimated $3.9 billion in compensatory and punitive
    damages.
    -- The median total award for a plaintiff winner was $37,000.
    -- Juries awarded punitive damages in 6% of civil cases with a plaintiff winner.
    -- The median punitive damage award to plaintiff winners was $50,000.
During 2001, judges decided 24% (2,828) of the nearly 12,000 civil trial cases disposed
    of by State courts of general jurisdiction in the Nation's 75 most populous counties.
-- The majority of contract cases (56%) and real property cases (69%) were disposed by
    bench trial.
    -- Plaintiffs won in 65% of bench trials and received an estimated $369 million in
    compensatory and punitive damages.
    -- The median total award for a plaintiff winner was $28,000.
    -- Judges awarded punitive damages in 4% of civil cases with a plaintiff winner.
    -- The median punitive damage award to plaintiff winners in bench trials was
    $46,000.

Prof. Dr. Thomas Lundmark
               punitive and exemplary damages
• knowingly selling damaged
  vehicles as new
• verdict: of compensatory
  damages: $4,000
  compensatory damages,
  and $4,000,000 punitive
• Alabama Sup. Ct.:
  $2,000,000 punitive dmgs.
• BMW of North Am. v. Gore:
  punitive damages must be
  reasonably necessary to
  vindicate the state of
  Alabama‟s legitimate
  interest in punishment and
  deterrence; if they are
  “grossly excessive” they
  violate due process
• USSCt: $2,000
 Prof. Dr. Thomas Lundmark
         punitive damages are rarely awarded

   • civil juries awarded punitive damages in 2.5
     percent of tort trials
   • judges awarded punitive damage in 7.9
     percent of tort trials
   • (punitive damages are not awarded on other
     than tort causes of action. In order for
     punitive damages to be awarded in a
     contract case, one of the parties must have
     committed a tort alongside the contract.)

Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                   civil dispositions in California
              Filings               Total                Before         Dismissal           Other before   Trial by   Trial by          Trial
                                    dispositions         hearing        for delay in        trial          jury       court             de novo
                                                                        prosecution
         %                                         100              0                  6             65         0.2              28.4        0.7




  Statewide             1,480,346         1,305,195                76              81,606       842,232       2,343       370,141         8,797




Prof. Dr. Thomas Lundmark
                            number of judgeships           annual civil filings




all federal courts                                  850                            259,541




State of California                                1,611                          1,480,346




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                            jury selection and trial




Prof. Dr. Thomas Lundmark
            California juries
Step 1: Selection of a Jury
When a jury trial is about to begin, the trial court judge requests a panel of prospective jurors to be
sent to the courtroom from the jury assembly room so that the jury selection process can begin.
After reporting to a courtroom, the prospective jurors are first required to swear that they will
truthfully answer all questions asked about their qualifications to serve as jurors in the case. The
perjury admonishment, which basically requires potential jurors to tell the truth when answering the
questions, is read as follows:
      "Do you, and each of you, understand and agree that you will accurately and truthfully answer,
      under penalty of perjury, all questions propounded to you concerning your qualifications and
      competency to serve as a trial juror in the matter pending before this court, and that failure to
      do so may subject you to criminal prosecution?

The court clerk calls 12 or more jurors to take seats in the jury box. The judge speaks to the jurors,
telling them the names of the people involved in the case and their attorneys and stating what the
case is about. The judge and the attorneys ask jurors questions to determine if the jurors are free of
bias (prejudice) or whether there is any other reason why any of them cannot be fair and impartial;
this process is called voir dire. It is important to ask questions if you do not understand a question.
Also, each juror is obligated to follow the law as explained by the judge; if you can not follow the
law, you need to let the judge know.
  Prof. Dr. Thomas Lundmark
                                    Step 1: Selection of a Jury
The court clerk calls 12 or more jurors to take seats in the jury box. The judge speaks to the jurors,
telling them the names of the people involved in the case and their attorneys and stating what the
case is about. The judge and the attorneys ask jurors questions to determine if the jurors are free of
bias (prejudice) or whether there is any other reason why any of them cannot be fair and impartial;
this process is called voir dire. It is important to ask questions if you do not understand a question.
Also, each juror is obligated to follow the law as explained by the judge; if you can not follow the
law, you need to let the judge know.

The law lets the judge and the lawyers excuse individual jurors from service in a particular case for
various reasons. If a lawyer wants to have a juror excused, he or she must use a "challenge" to
excuse the juror. Challenges can be for cause or peremptory. There are unlimited challenges for
cause and 10 in criminal cases (20 in death penalty) and 6 in civil cases (Code of Civil Procedure
sec. 231). … When the selection of the jury is completed, the jurors take the following oath:
     "Do you, and each of you, understand and agree that you will well and truly try the cause now
     pending before this court, and a true verdict render according only to the evidence presented
     to you and to the instructions of the court?"

As a juror you should think seriously about the oath before taking it. The oath means you give your
word to reach your verdict upon only the evidence presented in the trial and the court's instructions
about the law. You cannot consider any other evidence or instruction other than those given by the
court in the case before you. Remember that your role as a juror is as important as the judge's in
making sure that justice is done.
  Prof. Dr. Thomas Lundmark
                               Step 1: Selection of a Jury
             Importance of voir dire according to attorney jurors
• Tort claim where the plaintiff
was a drywall hanger. After a
non-work-related injury, he
claimed a significant wage loss.
• When we entered the jury
room, one of the older
gentlemen said, “My no-good
son-in-law is a drywall hanger,
and there has not been any
work in that field for the last two
years, so there‟s no way this guy
lost wages.”




Prof. Dr. Thomas Lundmark
                                 Step 1: Selection of a Jury
                  Importance of voir dire according to attorneys
• A Palestinian immigrant to the US
was caught by store security guards
hiding cigarettes in the front of his
tucked-in sweater. He resisted
arrest and was injured trying to
break free. He then sued the store
and security company.
• During voir dire, juror no. 6 was
asked about his education and
about his current employment but
nothing else in particular. As soon
as we entered the jury room, he
blurted out, “I joined the Israeli
army following college, and
Palestinians are taught to steal from
the age of 3.”



Prof. Dr. Thomas Lundmark
                                 Step 1: Selection of a Jury
                  Importance of voir dire according to attorneys
• I was selected for three criminal
panels in the month that I spent in
the pool. I soon learned that many
jurors consider voir dire an invasion
of privacy heaped upon the
inconvenience of being called for
jury duty. As a result, many jurors
refuse to give complete, truthful
answers to questions asked on the
information form or in court.
• Since that time, I have never
trusted the “experts” who advocate
in-depth voir dire as a way to select
the “perfect” jury. I keep my voir
dire general, short and
nonintrusive. It has proven to be
very successful.
Prof. Dr. Thomas Lundmark
                                      Step 1: Selection of a Jury
                            Role of (scientific) jury consultants
• Use surveys, mock trials, etc. to
ascertain (usually demographic)
characteristics of jurors who are
favorably disposed
• Also will suggest mock trials to see
what witnesses, exhibits,
arguments, etc. are most effective
• Most lawyers say that they merely
reinforce what the lawyers already
know
• While the effectiveness is
inconclusive, wealthy clients will
sometimes retain the services of
jury consultants, paying up to
$500,000



Prof. Dr. Thomas Lundmark
                            Step 2: The Trial
Jurors' duties during the trial

Do not talk to others about the case. This responsibility requires that you not
talk at all with the lawyers, witnesses, or anyone else connected with the case.
The lawyers understand this rule. You will find that, even at the risk of
seeming rude or unfriendly, the lawyers must avoid even casual conversation
with you. In order to prevent even the appearance of improper conversation, a
wise policy for you to follow is to avoid any contact with the lawyers or the
parties. You also cannot talk to anybody about the case. There are important
reasons for this: all cases must be decided only on the evidence presented in
the courtroom. If you were to discuss the facts of the case or your impressions
of it with your family, friends, or with any other person, you might hear their
ideas and might be influenced by people who do not know all the facts. If you
believe that someone has tried to speak to you about the case, you must
report what happened to the judge by contacting the baliff immediately.


Prof. Dr. Thomas Lundmark
                            Step 2: The Trial
 Do not make up your mind before hearing all the evidence. It is also your
 duty not to form or express an opinion about the case to anyone. This
 means that you keep an open mind until you have heard the evidence
 from all sides and the case is given to the jury for deliberation. Only
 then may you discuss it with your fellow jurors and even then only
 when all jurors are present.

 Do not conduct your own investigation of the case. It would also be a
 violation of your duty as a juror to conduct any investigation of the
 case. As a juror you must not become an amateur detective. For
 example, you must not visit the scene of an accident, an alleged crime,
 or any event or transaction involved in the case. You should not
 conduct experiments or consult any other person or reference works for
 additional information. If the judge feels that an inspection of a place is
 necessary or will be helpful, he or she will arrange and supervise an
 inspection by the whole jury. If you have a question about the evidence,
 let the judge know by handing a note to the bailiff and he or she will
 make a decision about your question.
Prof. Dr. Thomas Lundmark
                            Step 2: The Trial
  Attorneys' opening statements
  As the trial begins, the lawyer for the plaintiff in a civil case or the prosecutor in a
  criminal case may make an opening statement telling you what they expect the
  evidence to show. The defendant's lawyer may also choose to give an opening
  statement after the plaintiff's attorney or prosecutor, telling you what the defense
  expects the evidence to show. The lawyers' statements are not evidence. Their purpose
  is to give you the framework of th e case, the points of conflict, and the issues of the
  case that you will need to decide. Be careful that you do not let any of the information
  presented in the opening statements become evidence in your mind. Remember that
  the lawyers' statements are only their versions of what happened, not evidence.
  Presentation of evidence
  Evidence may be presented by the attorneys in the form of a written document or an
  object (a gun, another weapon, a photograph, an x-ray, or some other physical thing).
  These are called exhibits. Evidence may also include the testimony of witnesses under
  oath in the courtroom.
  Attorneys' closing statements
  After all the evidence has been reviewed in court, lawyers for each side may present
  their final summary of the case, sometimes referred to as an argument. The lawyers
  can talk about reasons and make conclusions, but these are not evidence; they are
  efforts to persuade you. You should listen to these statements carefully and consider
  them thoughtfully, but you must form your own opinion about the outcome of the
  case.
Prof. Dr. Thomas Lundmark
                            Step 2: The Trial
     Judge's Instructions on the Law
     Either before or after the closing arguments by the lawyers, the judge will explain
     the law that applies to the case to you. This is the judge's instruction to the jury.
     You have to apply that law to the facts, as you have heard them, in arriving at
     your verdict. You must consider all of the instructions and give them equal
     consideration. Keep in mind that you must follow the law as the judge states it to
     you. If the judge gives you an instruction that seems different from what you read
     here or another instruction given at another trial, you must accept the
     instruction given by the judge of the case you are deciding as correct and be
     guided by the judge's statement only. Be sure to ask questions if you don't
     understand.
     When considering the evidence, an important difference exists between civil and
     criminal cases in the degree of proof required to sustain an accusation. In a
     criminal case, the defendant, in order to be convicted, must be proved guilty
     beyond a reasonable doubt. In a civil case, a party suing another has to prove
     that charge by a preponderance of the evidence. In every trial, the judge carefully
     explains the degree of proof required to reach a verdict. You should pay careful
     attention to the instructions on the degree of proof.




Prof. Dr. Thomas Lundmark
                            jury instructions
  • 1201. Strict Liability—Manufacturing Defect—Essential
    Factual Elements
  • [Name of plaintiff] claims that the [product] contained a
    manufacturing defect. To establish this claim, [name of
    plaintiff] must prove all of the following:
  • 1. That [name of defendant]
    [manufactured/distributed/sold] the [product];
  • 2. That the [product] contained a manufacturing defect
    when it left [name of defendant]’s possession;
  • 3. That the [product] was used [or misused] in a way that
    was reasonably foreseeable to [name of defendant];
  • 4. That [name of plaintiff] was harmed; and
  • 5. That the [product]’s defect was a substantial factor in
    causing [name of plaintiff]’s harm.




Prof. Dr. Thomas Lundmark
        We answer the questions submitted to us as follows:
        1.      Did [name of defendant] [manufacture/distribute/sell] the [product]?
         ____ Yes ____ No
        If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
        2.      Did the [product] contain a manufacturing defect when it left [name of defendant]’s possession?
         ____ Yes ____ No
        If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
        3.      Was the [product] used [or misused] in a way that was reasonably foreseeable to [name of defendant]?
         ____ Yes ____ No
        If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
        4.      Was the manufacturing defect a substantial factor in causing harm to [name of plaintiff]?
         ____ Yes ____ No
        If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
        5.      What are [name of plaintiff]’s damages? Do not reduce the damages based on the fault, if any, of [name of
plaintiff] or [name/description of other person].
        [a.     Past economic loss, including [lost earnings/
                                           lost profits/medical expenses:]
         $ ________ ]
        [b.     Future economic loss, including [lost
                                           earnings/lost profits/lost earning capacity/
                                           medical expenses:]
         $ ________ ]
        [c.     Past noneconomic loss, including [physical
                                           pain/mental suffering:]
         $ ________ ]
        [d.     Future noneconomic loss, including [physical
                                           pain/mental suffering:]
         $ ________ ]


Prof. Dr. Thomas Lundmark
         TOTAL $ ________
       If [name of plaintiff] has proved any damages, answer question 6. If [name of plaintiff] has not proved any
damages, then stop here, answer no further questions, and have the presiding juror sign and date this form.
       6.    Was [name of plaintiff] negligent?
        ____ Yes ____ No
       If your answer to question 6 is yes, then answer question 7. If you answered no, insert the number zero
next to [name of plaintiff]’s name in question 10 and answer question 8.
       7.    Was [name of plaintiff]’s negligence a substantial factor in causing [his/her] harm?
        ____ Yes ____ No
       If your answer to question 7 is yes, then answer question 8. If you answered no, insert the number zero
next to [name of plaintiff]’s name in question 10 and answer question 8.
       8.    Was [name/description of other person] negligent?
        ____ Yes ____ No
       If your answer to question 8 is yes, then answer question 9. If you answered no, insert the number zero
next to [name/description of other person]’s name in question 10 and answer question 10.
       9.    Was [name/description of other person]’s negligence a substantial factor in causing harm to [name of
plaintiff]?
        ____ Yes ____ No
       If your answer to question 9 is yes, then answer question 10. If you answered no, insert the number zero
next to [name/description of other person]’s name in question 10 and answer question 10.
       10. What percentage of responsibility for [name of plaintiff]’s harm do you assign to:
       [Name of defendant]:                                  ____%
       [Name of plaintiff]:                                  ____%
       [Name/description of other person]:        ____%
       TOTAL                                                 100%
       Signed: ________________________
                                       Presiding Juror
       Dated: ____________
       [After it has been signed/After all verdict forms have been signed], deliver this verdict form to the
[clerk/bailiff/judge].


  Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                                stages of litigation
                            •   pleadings
                            •   discovery
                            •   pre-trial
                            •   trial
                            •   evidence
                            •   appeal




Prof. Dr. Thomas Lundmark
                             evidence: defined

• matters that tend to prove the existence or non-existence of some
  fact (Oxford Dict. of Law)
• those matters actually admitted into evidence by the judge presiding,
  as in 'the evidence before the court'
• body of rules that govern what can and what cannot be brought
  before a court in any particular case, and the weight that it should
  have, as in „the law of evidence‟ (Collins Dict. of the Law).
• '"Evidence" means testimony, writings, material objects, or other
  things presented to the senses that are offered to prove the existence
  or nonexistence of a fact.„ Cal. Evid. Code § 140




 Prof. Dr. Thomas Lundmark
                    A Conan Doyle, 'Silver Blaze'
                                     • Owner: Is there any
                                       point to which you
                                       would wish to call
                                       my attention?
                                     • SH: To the curious
                                       incident of the dog
                                       in the night-time.
                                     • Owner: The dog did
                                       nothing in the
                                       night-time.
                                     • SH: That was the
                                       curious incident.
Prof. Dr. Thomas Lundmark
                            relevance
• To be admissible in court, evidence must be
  relevant and material
• The California Evidence Code, in section 210,
  defines 'relevant evidence' to mean 'evidence,
  including evidence relevant to the credibility of a
  witness or hearsay declarant, having any tendency
  in reason to prove or disprove any disputed fact
  that is of consequence to the determination of the
  action'
• Another definition can be found in Rule 401 of the
  Federal Rules of Evidence, which apply in the
  courts of the United States of America: '"Relevant
  evidence" means evidence having any tendency to
  make the existence of any fact that is of
  consequence to the determination of the action
  more probable or less probable than it would be
  without the evidence.'
Prof. Dr. Thomas Lundmark
                            materiality
• A distinction is sometimes made between relevancy and
  materiality. Evidence that is relevant may nevertheless be
  excluded on the grounds that it is 'immaterial', that is, that it has
  little probative value
• Evidence which is relevant and material is sometimes said to be
  'competent'. However, 'competency' is usually used in the
  evidentiary context to refer to the legal capacity of witnesses to
  testify in court
• Generally, any person of sound mind and sufficient
  understanding, irrespective of age, is qualified or 'competent ' to
  give evidence
• However, unless the person is an expert witness, her testimony
  must avoid opinions and confine itself to matters of which the
  person has personal knowledge (see, e.g., Cal. Evid. Code §
  702(a))



Prof. Dr. Thomas Lundmark
                            hearsay
• Evidence of a statement that was made other than by a
  witness while testifying at the hearing and that is offered to
  prove the truth of the matter stated (Cal. Evid. Code §
  1200; Rule 33.1, Civ. Proc. Rules for Engl. and Wales) may
  be inadmissible as 'hearsay evidence'
• The hearsay rule is subject to numerous exceptions. The
  Civil Evidence Act 1995, which applies in England and
  Wales, abolished the rule against hearsay in civil cases and
  substituted a procedure by which a party who intends to
  rely on hearsay evidence must serve the other parties with
  a 'notice of intention to rely on hearsay evidence' (Rule
  33.2, Civ. Proc. Rules). It is then up to the judge to weigh
  the credibility of the hearsay evidence submitted.



Prof. Dr. Thomas Lundmark
                            non-hearsay evidence
• Officer Friday, hears cries of "Help,
he's trying to kill me!" from inside a
house. Believing that there is a
crime in progress, the officer kicks
the front door down and enters the
home to discover that the owner
and his wife are rehearsing a play.
• The owner sues Officer Friday for
invasion of his home.
• Officer Friday will be allowed to
testify that she heard someone cry
"Help, he's trying to kill me!" as she
is not offering the statement to
prove that there was a killing in
process. Thus, it is not hearsay.



Prof. Dr. Thomas Lundmark     02.02.2011
                            best evidence rule

     The best evidence rule
     nowadays requires that
     the original of a
     document must be
     produced in court in
     order to prove the
     document's contents,
     unless the proposing
     party offers an adequate
     explanation for her
     failure to produce the
     original (Oxford Dict. of
     Law)


Prof. Dr. Thomas Lundmark
                            privilege
• In the law of evidence certain persons in certain
  situations enjoy a privilege not to testify
• The legal professional or 'attorney-client' privilege
  protects confidential communications between lawyers
  and their clients
• In England and the US, this privilege extends to
  internal communications with 'in-house' counsel, that
  is, between lawyers and other employees working for
  the same company
• The most well known example is the privilege against
  self-incrimination, which accords witnesses a right
  not to testify or otherwise reveal evidence that might
  expose themselves to criminal prosecution →→→


Prof. Dr. Thomas Lundmark
Privilege against self-incrimination

• “no person … shall
be compelled in any
criminal case to be a
witness against
himself” Amend. V, US
Const.




Prof. Dr. Thomas Lundmark   02.02.2011
                                stages of litigation
                            •   pleadings
                            •   discovery
                            •   pre-trial
                            •   trial
                            •   evidence
                            •   appeal




Prof. Dr. Thomas Lundmark
                            appeals in California
    •    to the District Court of Appeal with jurisdiction
    •    as a matter of right
    •    on questions of law and
    •    on questions of fact (or mixed fact and law)
          - judge trial: “clearly erroneous”
          - jury trial: “complete absence of any substantial
             credible evidence to support the verdict”




Prof. Dr. Thomas Lundmark
                    appeals in the federal courts

• to the Circuit Court
  of Appeals with
  jurisdiction
• as a matter of right
• [same as state
  courts]




Prof. Dr. Thomas Lundmark
              appellate review by the California
                       Supreme Court
• petition for review
• usually discretionary
• 5,500 petitions for
  review and 3,000 other
  proceedings filed
  annually
• <5% of petitions are
  granted
• issue about 150
  opinions annually


Prof. Dr. Thomas Lundmark
    appellate review by the United States Supreme
                         Court
•   Almost always by the discretionary petition for a writ of certiorari,
    granted for “compelling reasons”, such as:
      - to resolve a conflict in the interpretation of a federal law or a provision of the
         federal Constitution
      - to correct an egregious departure from the accepted and usual course of
         judicial proceedings
      - to resolve an important question of federal law, or to expressly review a
         decision of a lower court that conflicts directly with a previous decision of the
         Court
•   7,000 cases on the docket per term
•   plenary review is granted in 100 cases
•   formal written opinions are delivered in 80-90
•   another 50-60 cases are disposed of without granting plenary review




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark

				
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