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					            Topics to be discussed
 Effective Planning *
 Basic Outline of a Lawsuit

 Causes of Action

 Pleadings

 Getting to the Evidence

 Moving the Court

 How to know you have the
power
 How to find the law

 How to read authorities

 Figuring out your opponents
strategy
 Using the Rules of Evidence

Direct & Cross Examination
Topics to be discussed
   Circumstantial Evidence
   Authentication of Evidence
   Trial
   Writing Orders
   Post Judgment
   How & When to Settle
   Preparing for Appeal
   Jurisdiction
   Dirty Rotten Sicken Lawyers
                Let’s Get Started
                    Really, it’s pretty simple

   Powerful Planning Produces Powerful Results
   How to prepare
   Stating your case
       Causes of Action
       Facts & Law
       Liability & Damages
       Be precise
   Moving your case
   Obtaining your judgment
                           Lawsuit Outline
  Complaint                       Answer                              Trial
                      Flurry                           Discovery
                        of
                     Motions
States all        Motions to      Answers           Request for       Formal
rights to sue     Dismiss, to     Complaint one     Admissions        Presentation of
                  Strike, or to   allegation at a                     Facts & Law for
(causes of                                          Request for
                  Require a       time                                Determination
action plus all                                     Production,
                  More Definite   Separately                          of Winner
Facts & Law
                  Statement of    Admitting or      Interrogatories   Pursuant to
that control
                  the Complaint   Denying each                        Rules of
outcome if                                          Depositions,
                                  Allegation                          Evidence
Facts and Law
                                                    Court Orders
can be proved
                                                    (including
                                                    subpoenas
                                                    subpoenas
                    Causes of Action
   Duty + Breach + Damages
   Proximate Causation
   Elements in Pleading & Proof
       Breach of Contract
            Existence of Contract
            Breach of Contract
            Damages
       Intentional Interference with Advantage
            Existence of Advantage
            Knowledge of Advantage
            Intentional Interference
            Damages
       Slander & Libel
            Intentional Falsehood
            Communicated to 3rd Party
            Damages
   Defend by Attacking Causes of Action
                     Pleadings
   Complaint
     Summons
     Verification

   Answer
     Certificate of Service
     Counterclaim

     Cross-Claim

     Third-party Complaint

   Affirmative Defense
     Required
     Optional

   Reply
Avoiding the Answer Altogether
   Motion to Strike
     Scandalous, impertinent, redundant
     Sham pleading

   Motion to Dismiss
     Lack of subject matter jurisdiction
     Lack of personal jurisdiction

     Improper venue

     Insufficiency of Process (quash)‟

     Insufficiency of Service of Process (quash)

     Failure to state a cause of action

     Failure to join indispensable party

   Motion for more definite statement
         Affirmative Defenses
   Accord and Satisfaction
   Arbitration and Award
   Assumption of Risk
   Contributory Negligence
   Discharge in Bankruptcy
   Failure of Consideration
   Duress
   Fraud
   Illegality
   License
   Payment
   Release
   Waiver
        Affirmative Defenses 2
   Res Judicaa – Thing is Decided
   Statute of Fruads
   Statute of Limitations
   Laches
   Every Motion to Dismiss Defense
   Any other Matter Constituting an
    Avoidance or Affirmative Defense
     Incapacity or Incompetence
     Alibi

     Death Certificate
           Answering
 No Need to admit if false in part
 No need to explain

 Admit, deny, or without knowledge

 Affirmative defenses every time

 Bring in others if possible

   Counterclaim

   Cross-claim

   Third-party complaint

 Confusion is allowed
                    Discovery
   Lawsuits are won (or lost) on evidence
   Laws apply only to facts in evidence
   Only 5 pre-trial tools to get evidence
       Request for Admission
       Request for Production
       Interrogatories
       Depositions
       Subpoena Power
   Rules of Evidence
       Affidavit are inadmissible
       Unofficial documents cannot speak
       Discovery responses from the other side
   Compelling discovery!
       Don‟t wait on the court to do it for you
       File motions and set motions for hearing
       Win before trial….with pre-trial discovery
              Moving the Court
   Don‟t ask or beg – Notice for Hearing
   Make the court move!
   Get an Order
   Force your cause by demand
       Memoranda
         Cases

         Statutes

         Rules

         Constitutions

     Judicial Notice
     Always be Preparing for Appeal
              Standing in Power
   Approaching the bench
       Don‟t ask or beg
       Instruct the court with confidence
   Why you should win
       Law
       Facts
       Due Process & Rule of Law
   Who paid for your right to win
   When & how to threaten a judge
       Respect
       Reporter
       Recusal
   Appeal – your bottom line
                 Knowing the Law
   You know the facts – know the law
   Legal research
       Cases
       Statutes
       Rules
       Constitutions
   Where to find it
       Local law library or university library
       Your friendly neighborhood law firm
       Loislaw, Findlaw, Westlaw, etc
       Other on-one resources
   How to cite law
   When to provide copies of citations
   How to provide copies of citations
          Writing a Memorandum
   Facts – as to causes of action
   Law – as to causes of action/facts
   Be brief
   Supporting your own motions
      Explaining how your citations apply

   Opposing the other side‟s motions
      Explaining how his citations don‟t
       apply
      Contrast his citations with yours

   Reversal v. Remand
                Reading Authorities
   What authorities control your trial court
       Constitutions
       Statutes & Annotated Statutes
       Rules & Comments
       Cases – Controlling and Suggesting
            Local v. other appellate courts
            State Supreme Court
            Other states
            Federal districts & U.S. Supreme Court
       Public Interest
   How to read the authorities
       On point v dicta
       Reversal, remand, dissent
       Tracking
       Shepardiz, Keycite, or Search
       Sizing Up Your Opponent
   Never under-estimate the enemy
   Stay on your toes – mid-stream changes
   Analysis & Response
   Stay on the offensive….if you can
   Stick to the pleadings
   How and when to amend pleadings
   Framing your case and his
      Causes of action

      Essential facts

      Controlling law
                 Using Evidence Rules
   Common evidence traps
       The affidavit trap
       The failed authentication trap
   When to object – when not to
   Motions for judicial notice
   Simplifying evidence rules
       Admissibility
            Relevance - Reliability
            Credibility – Competence
            Privilege - Prejudice
       Hearsay…what it is really
       Authentication
       Presumptions
       Privileges
            Privileges
 Attorney-Client….Confidentiality

 Work-Product….Prep for Case

 Psychotherapist-Patient….Duty

 Husband-Wife….Not
  Everywhere
 Priest-Penitent….Spiritual Only

 Accountant-Client….No Crimes

 Waivers that Destroy Privilege
                Impeachment
   Inconsistent Prior Statement
   Character
     Recent Conviction
     Reputation for Dis-Honesty

   Religion
   Defect of Capacity
     Lack of 1st-Hand
     Drunks & Incompetents

     Talking to Toys

   Substantial Contrary Evidence
                   Hearsay
   Out of Court Statement
     Declarant not available
     Not subject to cross-examination

   Offered to Prove Truth of Assertion
   Exceptions to Hearsay
     Statements Against Self-Interest
     Dying Declaration

     Excited Utterance

   Testimony by Attorneys
   Court Discretion
        Direct & Cross Examination
   Cannot Lead Your Own Witness
     Prepare
     What did you see?

     Hostile Witness Exception

     Impeachment Exception

   Direct Examination Practice
   Effective Cross-Examination
     The Power
     Set Up Your Witness

     Be Friendly

     Hold the Best „till Last
    Circumstantial Evidence
   Circumstantial Evidence is not “Real”
   Like a Geologist‟s guesses
       Hunch based on Direct Facts
       Not Direct Fact, therefore not provable
       Real Evidence is Direct Fact, REAL
       Hunch or “Indirect Fact” not a FACT at all
       Only inference taken from a direct fact
   Generally treated as “evidence” anyway
   Cannot be based on another inference
   Can ONLY be based on Direct Facts
   Pyramiding Inferences not Allowed
       One Inference ONLY
       No Inference from an Inference
   Must be limited and shown for what it is
            Authentication
 Self-Authenticating
   Certified Copies of Court Papers

   Official Document Under Seal

     Government Papers

     Not Copies!

 Non-Self-Authenticating

   Photographs

   Recordings

 Requirement of Originals
                  Trial
   If you haven‟t won by now…..
   Judge or Judge + Jury
   Picking jurors
   Jury instructions
   Scheduling witnesses & exhibits
   Importance of orderly presentation
   Opening statement
   Closing argument
   Preserving objections
     Writing the Final Order
 Be 1st to offer
 THIS CAUSE having come before the
  court, and the court having heard
  evidence and argument of counsel,
  now therefore it is…..
 Findings of Fact

 Findings of Law to Fact

 Judgment & Execution

 Identifying the Judgment Debtor
        Post-Judgment Process
   Record & Re-record the judgment
   Get a writ of execution
     Issued
     Docketed

   Post-judgment discovery
     Interrogatories
     Production

     Deposition

   Levy
   Bonds
   Using a collection agency
            When & How to Settle
   Making your case before trial
       Making the record
       Forcing the other side
   Counting the cost & risk of trial
   Negotiating a price
   Attorneys fees and costs
   Interest
   Notice of dismissal – with or without
   Getting releases
   Stipulation in lieu of judgment
   Using promissory notes
       Security
       Eliminate potential defenses
                   Preparing for Appeal
   Making your case BEFORE trial
       Making the record
            All essential elements
            Transcripts
            Depositions – file them!
       Preserving objections
   Stick to the citations & cite them often
   Instruct the court
   Be difficult to please
   Written objections – new and renewed
   Motions to reconsider
   Motion for re-hearing
   Notice of appeal
   Drafting an appellate brief
                   Jurisdiction
   What courts have power
   Where the power comes from
       In personam jurisdiction
       In rem jurisdiction
   How maxims control courts
       Constitutions built on them
       Statutes judged by them
       Case law controlled by them
   Rule-making power
   Inherent enforcement power
   Equitable power & discretion
   Power to control proceedings
                Crooked Lawyers
   Professional courtesy
   Lawyer jokes exist for a reason
       Lazy
       Dishonest (includes laziness)
       Incompetent
   Self-interest always controls
       Honesty
       Deep pockets
       Time
       Contingency percentages
   How to protect yourself from your own
   How to protect yourself from opposing
   Going to the local Bar….waste of time?
   Lift the bar higher – control the court
                    In Summary
   Anticipate human nature
   Plan and prepare
   Research and write
   Stay on the offense…if you can
   Attach every weak point
   Emphasize your strong points
   Be truthful
   Be honest
   Demand justice!
       It‟s your right
       It was bought with a price
       Honor the court
   Be Good, Be Fair. Believe in America

				
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posted:8/22/2011
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