6. Litigation & Other Forms of Advocacy Flashcards
what does “claims and contentions must be meritorious” mean?
you CANNOT
1) bring frivolous claim
2) OR assert frivolous defense
3) OR take frivolous position
what does “frivolous” mean?
1) no good faith argument UNDER law
2) AND no good faith argument for CHANGING the law
the outer bounds of non-frivolity—generally
you can still go forward with a claim IF
1) you don’t know all the facts yet
2) know that important evidence won’t turn up until discovery
3) you don’t really think your client will prevail
the outer bounds of non-frivolity—criminal defense
even if your client is clearly guilty, you can make the prosecutor prove EVERY element (though you can’t make frivolous arguments during the process)
various advocacy duties
1) reasonable efforts to expedite litigation (while being consistent with client’s legitimate interests—NOT including financial!)
2) honesty when advocating before a NEUTRAL official/body that issues BINDING legal judgment (e.g. court, arbitrator, SOMETIMES legislative bodies—ONLY when binding, etc.)
3) can’t knowingly make false statements of LAW; must correct UNINTENTIONAL, MATERIAL false statements
4) must disclose CONTROLLING law
5) can’t knowingly make false statements of FACT; must correct U/M (doesn’t apply to pleadings, etc., though), BUT you don’t need to volunteer harmful facts EXCEPT if ex parte (one-sided)
rules on false evidence—generally
1) CANNOT offer ANY evidence lawyer knows to be false
2) MAY refuse to offer evidence you BELIEVE is false
3) if you learn evidence in court WAS false, take REASONABLE REMEDIAL MEASURES
what are “reasonable remedial measures”?
1) ALWAYS TALK to your client first
2) AND WITHDRAW (not mandatory, but best practice)
3) AND STRIKE false evidence (or take steps to cancel its effect—like talk to judge or something) (STRIKE duty only applies through the end of time for appeal)
what supersedes duty of confidentiality?
CANDOR TO TRIBUNAL
rules on false evidence—criminal defendants
1) if you BELIEVE client will lie on the stand…you HAVE to let them do it anyway (if they want)
2) if you KNOW your client will lie on the stand…duty of CANDOR v. CONSTITUTIONAL RIGHT to testify
what to do when you KNOW your crim defendant will lie on stand—ABA
1) COUNSEL CLIENT
2) CONSIDER withdrawing
3) TELL JUDGE
what to do when you KNOW your crim defendant will lie on stand—NARRATIVE
ASSUME this doesn’t apply unless EXPLICIT in question
still counsel, BUT then ask an open-ended question; let them answer and deal with cross X; don’t address in closing
duty of FAIRNESS to opposing counsel—generally
1) don’t hide evidence
2) don’t tamper with evidence
3) don’t falsify evidence
4) don’t convince someone to commit perjury
5) don’t submit frivolous discovery requests
6) comply with non-frivolous discovery requests
can you advise people not to talk to opposing counsel?
YES, but only your client and/or client’s relative/agent/employee
can you pay witnesses?
state-by-state, but GENERALLY,
1) reasonable fees to EXPERTS (NOT contingency)
2) travel expenses
can you violate court rule or court order?
ONLY IF you have a good faith assertion that it’s invalid
