Chapter 6 Litigation Documents

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Chapter 6 Litigation Documents Powered By Docstoc
					             Chapter 6

Litigation Documents

    Summons, Complaint, Answer
       Discovery Documents
                The Summons

   Process =
       Summons & Complaint

   Service of Process
       Presenting the summons & complaint to
Fulfills due process requirements

   Noticing a defendant requires:
        1. original complaint and copy of summons filed with court
        2. summons issued by court
        3. summons & complaint both served on defendant
        4. process server must be over 18 & not a party to action
        5. affidavit of service, called Return of Service, filled out by
         process server
        6. file Return of Service filed with the court

   Service by Publication
        Generally, requires court order
                                                 DISTRICT COURT OF CLARK COUNTY
                                                       STATE OF CONFUSION

JOHN DOE,             )
    Plaintiff.        )
vs.                   )                                             SUMMONS
Phillip Duncan,       )
      Defendant.      )
_____________________ )


TO THE DEFENDANT(S): A civil complaint has been f iled by the Plaintif f against you f or the relief set f orth in the Complaint.

                  1. If you intend to def end this lawsuit, within 20 days af ter this Summons is served on you, exclusive of the day of service , you
      must do the f ollowing:
                                    a. File with the Clerk of this Court, whose address is shown below, a f ormal written response to the Complaint
      in accordance with the rules of the Court with the appropriate f iling f ee.
                                    b. Serve a copy of your request upon the attorney whose name is shown below.
                  2. Unless you respond, your def ault will be entered upon application of the Plaintif f and this Court may enter a judgment aga inst
      you f or the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the
                  3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be f i led
      on time.
                  4. The State of Conf usion, its political subdivisions, agencies, officers, employees, board members, commission members and
      legislators, each have 45 days af ter service of this Summons within which to f ile an answer or other responsive pleading to t he Complaint.

                                                                    CLERK OF COURT

____________________________                                        By: _____________________________________
Sue M. Daily
Attorney f or Plaintif f
                 The Complaint
   Five Elements:

       1.   Caption
       2.   Jurisdiction
       3.   Cause of Action
       4.   Ad Damnum Clause
       5.   Subscription
                               Attorney Name

   Attorney’s Heading         FIRM NAME
                               Street Address

    »                          City, State 00000
                               Telephone Contact

                               Attorney for Plaintiff/Defendant

                                       DISTRICT COURT OF CLARK COUNTY
                                             STATE OF CONFUSION
   Court Hearing Matter   »

                               JOHN DOE,          )
                                   Plaintiff.     )
   Names of Parties       »   vs.                )               SUMMONS
                               Phillip Duncan,    )
                                    Defendant.    )
                               __________________ )
   Title of Document
   Types of jxn.:
       In personam                        1. Plaintiff is now and at all times relevant
                                            has been a resident of El Paso County,
            Address of π/Δ                 Colorado.

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

       In rem                             3. The accident in controversy occurred in
            Place of controversy           Denver County, Colorado.

       Quasi in rem                       4. The defendant owns property in Denver
                                            County, Colorado, which is subject to
                                            attachment for damages awarded plaintiff in
               Note:                        Green v. Jones …
    Federal Complaints require
     (Jurisdictional Statement)
                    Cause of Action

   Claim for Relief

       Examples:                     “Defendant had a duty to properly obey
            Negligence           »      traffic laws of the state and county
                                         where the accident occurred, and by
            Negligence per se           failing to do so acted in a negligent
            Breach of Contract          manner.”
            IIED
           Ad Damnum Clause

   = Prayer for Relief   Wherefore, Plaintiff prays for judgment
                          against the Defendant as follows:

                          1.    For general damages in excess of
                                $10,000.00 according to proof;
                                For loss of earnings and earning capacity
    = Wherefore Clause
                               according to proof;
                          3.    For medical expenses, future medical
                                expenses and all incidental expenses
                                according to proof;
                          4.    For interest from the date of accident to
                                the time of judgment;
                          5.    For costs of suit incurred herein;
                          6.    For attorney fees incurred herein, and
                          7.    For such other and further relief as the
                                Court deems proper.

   Signature line
                       Attorney Name
                       State Bar No. 0000
                       Firm Name
                       Attorney for Plaintiffs/Defendants
   Numbering Paragraphs                                    General Allegations
                                                       (Allegations All Defendants)

                                                  Plaintiffs are and at all times have been
   Fact Pleading vs. Notice                      residents of Clark County, State of XXX.
        Notice Pleading =
              Notice of claims
                                                  Defendants are now and at all times
        Fact Pleading =                          relevant have been residents of Clark
              Set forth prima facie case in CM   County, State of XXX.
                                                  On or about October 23, 3004, Defendant
   Verified Complaints                           was driving a taxi, in which Plaintiff(s)
        Plaintiff attests to validity            were passengers. Defendant, traveling
                                                  north on Sahara Blvd., was traveling 60
                                                  m.p.h. in a 30 m.p.h. zone.
              Tort Causes of Action
   Tort = Civil Wrong
       Intentional Torts:
            Defamation, Libel, Slander
            Wrongful (False) Imprisonment
            Malicious Prosecution/Abuse of Process
            Trespass & Nuisance
            Assault
            Battery
            Misrepresentation
            Conversion
            Intentional Infliction of Emotional Distress
       Negligent Torts:
            Negligence: Duty, breach, damages
            Negligence per se: Violation of law
            Wrongful Death
        Contract Causes of Action

   Contract = Agreement between parties
       Breach of Contract
       Bad Faith
       Breach of Fiduciary Duty
         Establishing Causes of Action
                                                      General Allegations
                                                   (Against All Defendants)
   General Allegations                                         I.
                                     Plaintiffs are and at all times relevant have been
                                          residents of Clark County, State of
        Jurisdictional statements                             II.
                                     Defendants are now and at all times relevant
                                          have been residents of Clark County, State
                                          of Confusion
                                     On or about October 23, 2004, Defendant was
                                          driving a taxi, in which Plaintiff(s) were
                                          passengers. Defendant, traveling north on
        Facts                            Sahara Blvd., was traveling 60 m.p.h. in a
                                          30 m.p.h. zone.
                                     At the intersection of Sahara and Paradise Road,
                                          Defendant failed to stop for a red light.
                                     Defendant’s taxi subsequently struck a vehicle
                                          traveling south bound on Paradise Road.
                                          The vehicle which was struck possessed the
                                          right of way.
                     The Claim:
               3-Step Cause of Action
   Caption Claim:
                       FIRST CLAIM FOR RELIEF:

   3-Step Cause of Action:
       Incorporation Paragraph
            “Plaintiff hereby incorporates and realleges Paragraphs 1 through 7,
             as though fully set forth at length herein.”
       Cause of Action
            “Defendant had a duty to properly obey the traffic laws of the state
             and county where the accident occurred, and by failing to do so
             acted in a negligent manner.”
       Alleges Damages
            “As a result Defendant’s negligent conduct stated above, Plaintiff
             has suffered specific damages, including but not limited to medical
             expenses and lost wages.”
                      Court Paper
   Open line indicators
       /// indicates that the last lines on the page
        have been intentionally left blank

   Pleading Paper
       Numbered legal paper
          Standard: 28 lines
          Used for: pleadings, discovery, other court
                         The Answer
   Answer:
       Defendant’s response to Complaint
       Answer each paragraph of the complaint
            E.g., “Defendant hereby admits allegations
             contained in paragraphs 1, 4, 5 of Plaintiff’s

   Responses:
       Admit
       Deny
       Neither admitted or denied due to lack of
            Affirmative Defenses &
   Affirmative Defenses:
       Defendant admits that event occurred, but
        denies liability
       No damages claimed

   Counterclaims:
       Defendant’s claim for damages against
   Discovery = period to “Discover” facts
       Plaintiff serves discovery on defendant
       Defendant serves discovery on plaintiff

   Purposes of discovery:
       To clarify issues
       Eliminate surprise
       Limit the length of the trial

         All discovery is conducted under oath
                  Discovery Techniques
   Interrogatories
       Written questions

   Requests for Admissions
       Asks opponent to admit certain facts
            E.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on
             November 4, 2004 at 10:00 p.m.”

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

   Depositions
       Oral questions
   Interrogatories = written questions
       Limited Discovery:
            Some states limit the number of interrogatories or provide
             form interrogatories

   Format
       Caption
       Instructions
            Include instruction providing that interrogatories are
             continuing in nature
       Interrogatories (Questions)

                  Discovery is continuing in nature
        Answers to Interrogatories
   Procedure:
       Date Stamp Interrogatories
       Tickle date due (and prior)
       Responding:
          Attorney responds
          Client responds by him/herself

          Client responds with help

       Objections:
            Interrogatories may be objected to based on
             relevance, burden, etc.
       Extension of Time
            Should be requested IN ADVANCE of due date
    Interrogatory Techniques

      Use formbooks & templates

Technique One:
    Personal information
Technique Two:
    Financial information
Technique Three:
         Requests for Admissions
   Request for admission of facts
       Establishes facts for trial
       E.g., “Admit that you are the owner of a blue
        Chevrolet, license no. 897 IUO”

   Responding to Requests
       Date stamp
       Tickle due date
            If response is not timely (30 days), the
             request is deemed admitted!!!!
         Request for Admissions:
   Admitted
   Denied
   Neither admitted nor denied due to lack of
    sufficient information with which to respond
       Specific reason must be given
   Neither admitted nor denied due to vagueness
    of the request
   Omit a response
       NOT a good idea
       May be deemed admitted
Request for Admission Techniques
         Use formbooks & templates

Technique One:
     Verify or corroborate interrogatories
           E.g., Admit or that you have been an employee of the U.S.
           Postal Service for eight (8) years .

Technique Two:
     Gives choices, or degrees of liability
Technique Three:
     Force the party to commit
              Requests for Production
Production of:
        Documents (medical
        reports, etc.)
                                  Request for Production:
       Pictures,
        designs/drawings          21. Produce any and all
       Contracts                   documents that evaluate
       Corporate records           compliance by the
                                    defendant with the terms
   Discoverable                    of the July 16, 2001
                                    contract which is in
                                    dispute in this litigation.
       Materials relevant to
        litigation that:
            Do not violate 5th
            Are not privileged
         Non-Discoverable Material
   Non-discoverable material:
        Attorney work-product
              Material produced in anticipation of litigation
        Privileged information
              Attorney-client privilege:
              Applies to paralegal and other staff:
                  1. Communication must be private

                  2. Must remain private

                  3. Must fall within scope of paralegal’s duties

   Production of Documents:
        Withhold attorney-client documents
        Withhold document prepared in anticipation of litigation
         Responding to Production
   Date Stamp Requests
   Tickle date due (and prior for preparation)
   Producing Documents:
      Request documents from client
      Review them carefully
             For privileged matters, other non-discoverable docs
             Review for discrepancies

   Motion to Compel
        Other party may file a Motion to Compel for force
         answers/responses if answers are non-responsive,
         privileged is claimed, etc.
    Request for Production Inspection

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

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

     Your inspection could win or lose the case!

                           State of Nowhere                )
                           County of Who                   )

                           I, _____, being first duly sworn, deposes and
   Answers to discovery        says:
                           That I am the Plaintiff in the above-entitled
    must                        action; that I have read the foregoing
                                ANSWERS TO INTERROGATORIES and
    be verified                 know the contents thereof; the same is true
                                of my own knowledge except as to those
                                matters therein stated on information and
                                belief and, as to those matters, I believe
                                them to be true.

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

                           NOTARY PUBIC in and for
                           said County and State

   Depositions = oral questions

   Setting:
       Both attorney’s present
       Court reporter transcribes testimony
       Deposition testimony is under oath
     Preparing for the Deposition

   1. Set the deposition
       Contact attorneys, witness
       Agree on time and place (generally)
            Send follow-up letter memorializing agreement
   2. Send Deposition Notice and Subpoena
       Subpoena witness to be deposed
   3. Prepare deposition questions
       Resources:
            Pleadings
            Discovery documents
            Research sources (Am.Jur. Pleadings and Practice, etc.)
           Deposition Follow-Up
   Transcript Review
       Deponent should review transcript
       Sign under oath

   Deposition Index
       Alphabetical index of subjects covered in
       Generally a matter of computer software
              Deposition Summary
   Deposition Summary = Digest
   Purpose:
       Relate relevant material
       2. Don’t alter the context of the material
       3. Avoid editorializing in the summary

   Methods:
       1. Topical Summary
       2. Page-by-Page Summary

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