Dominguez book

Question 1

Claim Adjustor Role

Answer 1

1. investigates potential dispute & with consent of potential defendant, attempt settlement.
2. May attempt disposition of the claim with claimant directly

Question 2

Work product

Answer 2

trial preparation materials; items “prepared in anticipation of litigation or for trial; limited protection; are discoverable only of “substantial need” and “undue hardship”

Question 3

initial Interview of plaintiff

Answer 3

Thorough interview, many attorneys use data collection forms analogous to those used in claim file; Some types of practice (divorce, compensation, collection, and some types of personal injury work) lend themselves well to standardized data collection

Question 4

Double entry calendar

Answer 4

one in which two people, usually attorney and secretary separately enter upcoming dates as well as long range dates; scheduling is important to the litigation lawyer

Question 5

Demand Letter

Answer 5

letter informing defendant of one’s demand

Question 6

Fee Agreement

Answer 6

One of the cardinal rules of good practice; establishes relationship; takes care of financial matters; prevents malpractice through misunderstandings; inclusion of these matters is typical:

1. authorization to pay expenses on behalf of the client
2. explicit statement that such expenses are to be reimbursed by the client
3. A list of obligations of the client (appear depos.; furnish info; tell truth; don’t insist illegal or unethical action)
4. Explicit statement that if nothing recovered, nothing is owed.
5. matters covered in contract

Question 7

Medical authorization

Answer 7

health providers will not release info without patient authorizations. What many attorneys do obtain clients signature on many at once in case of multiple dr., etc.

Question 8

Dominguez Complaint

Answer 8

Jurisdiction, Venue, Complaint with claim and facts, Dominguez looked like a cause of action

Question 9

Dominguez Service

Answer 9

Designated secretary (not party or attorney), sent to Secretary of State with check by restricted certified mail; got back certificate, which Elder filed with sworn return by secretary (process server)

Question 10

Dominguez Motion to Dismiss

Answer 10

1. Motion to dismiss because complaint fails to state a claim against defendant upon which relief can be granted
2. Motion to strike portion of complaint because allegation fails to give notice of any statutory laws or ordinances allegedly violated, and therefore insufficient.
3. Motion for more definitive statement “” insufficient to give notice.

Question 11

Dominguez Pleadings

Answer 11

must be supportable by arguments of law and fact based on a reasonable investigation; Defense want more specificity to limit parameters of claim and find out more about the claim

Question 12

Dominguez Docket Control Order

Answer 12

Had date for final joining, discovery, motion cut off and pretrial order

Question 13

Dominguez Request for Admissions

Answer 13

Was relatively short, used mainly to determine if they had sued the right defendant

Question 14

Dominguez Written Discovery

Answer 14

Artform; if too narrow, responses may be technically correct but misleading; If too broad, responses also may be misleading, but or meaningless; assume answered by opposing council; Elder uses three differently worded questions to find out the same thing

Question 15

Dominguez Setting up deposition

Answer 15

Need notice of time and place for parties; case had single defendant and plaintiff; was done by exchange of letters; impolite to pick a day without consulting the adversary

Question 16

Dominguez coverage of the deposition

Answer 16

Defendant’s attorney wants to find out about plaintiff’s case and freeze testimony is sworn form

Question 17

Dominguez deposition basic parts

Answer 17

initial assurance that plaintiff understands what deposition is about (to enhance impeachment function); plaintiff’s background and history; incident itself, including relevant preceding and following events; and coverage of the various possible elements of damages

Question 18

Dominguez deposition techniques

Answer 18

Funnel sequence (T-funneling)- useful for discovery and for interviewing

1. Start broadly with opened ended questions- what happened? (encourages the witness to narrate, which results in fuller discovery)
2. Encourage continued narration by prompting.
3. When narrative potential is exhausted, then shift to more specific questions
4. Other notes- Sometimes interruption is necessary to finish the deposition in time; technique of leaving a subject and returning to it

Question 19

Dominguez whom to depose

Answer 19

usually only adverse witness (or those unlikely to be available for trial); here, Elder had to ask a few questions because it might have given reason for summary judgment; also little deposition was taken on either side for economic considerations

Question 20

Dominguez timing final pleadings

Answer 20

Plaintiff got extension for filing of final pleading until after depositions so as to be able to make sure complaint matched with discovery

Question 21

Dominguez tactical use of specificity in pleadings

Answer 21

Sometimes it is better to be more specific so that the defendant has to admit or deny each allegation in good faith.
But general pleading is good also because proof can develop unpredictably at trial and unduly confining allegation of a claim may create a variance between allegation and proof.

Question 22

Dominguez Answer

Answer 22

Uses admissions and denials and a affirmative defense

Question 23

Dominguez Jury demand by defendant

Answer 23

Defendant has more experience, jury is more affected by experience and skill; also defendant’s attorney mays suspect that it will be easier to enforce exclusionary rule of evidence before a jury (hoping for JMOL)

Question 24

Dominguez Summary Judgment

Answer 24

that pleadings, depositions, answers to interrogatories so genuine issue to material fact and that defendant is entitled to judgment as a matter of law; also wrote brief using IRAC

Question 25

Dominguez Setting the case for trial

Answer 25

unless familiar, many opponents engage local counsel. in case, judge who ruled on pleading and discovery not the same as the one who will preside over the case. Wasted resources as new judge learns case and less incentive to make definitive pretrial rulings. Process also leads to multiple resettings of the case, discouraging careful preparation and creating difficulties for parties and witnesses. A more typical is initiation of trial settings by the judge, together with vigorous use of pretrial conferences.

Question 26

Dominguez multiple resetting of case for trial

Answer 26

Due to multiple resetting, case dragged on for two years before being tried.
manager and assistant manager had left defendant’s employ and no customer could be found who recalled the condition of the carts.

Question 27

Dominguez motion in limine

Answer 27

other party cannot mention certain subjections; in this case, insurance and offers or refusals to settle

Question 28

Dominguez hearsay (Rules of evidence)

Answer 28

hearsay is exclusion to evidence and can be spoken or documents that embody hearsay, but has exemption in records of regularly conducted activity. i.e., accounting books, medical records.

Question 29

Dominguez goals and tactics of voir dire

Answer 29

1. asking questions to find out about disqualifications or orientations of the juror (most obvious purpose)
2. Giving jurors a selective preview of the evidence
3. Defining legal terms in a favorable manner
4. Building rapport or injecting prejudice
5. injecting inadmissible evidence
6. Condition jurors to accept proof.
   Purposes may be ethical, marginal, or some flatly improper. Few guidelines; judge has discretion

Question 30

Dominguez label v. individual characteristics

Answer 30

Plaintiffs strikes are carbon copies of each other on “label” characteristics. All managerial, caucasian anglo, male, middle aged, educated, married w/ families, reside in suburbs. Difficult to obtain reliable information by individual inquiry within the time reasonably allotted necessitates use of gross characteristics; each part gets 3 pe challenges; multiparty allow more

Question 31

Dominguez removal for cause

Answer 31

Questioning is an artform; the juror must be induced to make statements showing a bias or prejudice that cannot be set aside.
Technique: appeal to jurors integrity and make forthrightness appear commendable
Strategy: Identify jurors they wish to remove and initiate process of obtaining responses leading to disqualification

Question 32

Dominguez examination by judge or attorneys

Answer 32

Attorneys-showboating personality contest that detracts from the determination of the case by law on evidence
Judge-rarely vigorous, informed, or likely to ferret out prejudice as examination by the attorneys.
Court has broad discretion; common practice in federal court; judge does; attorneys submit written questions

Question 33

Dominguez Evidence

Answer 33

Rules of evidence are important to a trial attorney; exposed to:

1. hearsay rule of exclusion
2. hearsay exceptions
3. the requirements of personal knowledge unless the the witness is an expert
4. relevance
5. the form of examination (including the preference for non-leading questions on direct examination)
6. Impeachment by use of a prior inconsistent statement

Question 34

Dominguez discretion in evidence rulings

Answer 34

Rules of evidence allow the judge considerable discretion. i.e. admissibility of testimony regarding baskets other than those that injured plaintiff, on days other than the incident in question

Question 35

Dominguez Objections

Answer 35

The party with the burden of proof is typically attempting to introduce evidence; the opposing party ordinarily uses the rules of evidence to exclude as much evidence as possible; rules regarding hearsay, personal knowledge, and leading questions can sometimes significantly hamper the examination of unsophisticated witnesses.

Question 36

Dominguez Method and sequence of direct examination

Answer 36

Many observers believe direct examination is more important and more difficult. Plaintiff’s attorney needs to have skill at controlling the examination and rephrasing questions so that evidence is received and understood.
Skillful direct examination is an art but includes following elements:
1. identification of the witness and placement of witness in context
2. clear designation by date and time of the event in question
3. questions that produce the story in chronological order
4. use of simple terminology and graphic details
5. re-orientation of the jury when the subject of examination shifts or when technical questions, such as evidentiary predicates, are at issue

Question 37

Dominguez defendant’s evidence

Answer 37

Defendant is not required to present evidence under these circumstances, but it did so in this case. This evidence was not helpful and inadvertently strengthened the plaintiff’s case. Even careful preparation is insufficient to avoid that result

Question 38

Dominguez JMOL made after trial

Answer 38

more likely to be granted (since it would be made after the trial and would allow for time for research and briefing and for considered reflection by the court.)

Question 39

Dominguez preparation of the charge

Answer 39

prior to jury argument, the attorneys submitted requested written charges. The judge adopted the special interrogatories proposed by each respective party, but used standard form definitions and instructions. The judge must inform the attorneys of his action on their requested charges. In this case, the judge furnished them with a written charge before argument began.

Question 40

Dominguez General charge, special interrogatories, or both?

Answer 40

Trial judge has discretion in choosing a general charge or special interrogatories.
General charge consists of instruction on the law, plus a verdict for plaintiff or defendant
Special interrogatories consist of questions on the fact issues

Question 41

Dominguez special interrogatories adv/disadv

Answer 41

adv- control the jury, require a verdict in accordance with the law and evidence more rigorously than the general charge, and provide reviewable findings
Disadv- depend heavily upon the precision of language and careful drafting. Breaking down a claim into its consistuent elements, and formulating them in an intelligible way, is not always feasible

Question 42

Dominguez general charge adv

Answer 42

adv-avoids violation of common sense and permits the jury’s traditional function of rounding the rough edges of the law

Question 43

Dominguez structure of the charge

Answer 43

charge using special interrogatories generally consist of three types of elements

1. General instructions
2. Definitions of legal principles
3. Special interrogatories accompanied by verdict forms

Question 44

Dominguez strategy of drafting the charge

Answer 44

Court frequently prepares from submissions by the attorneys. At conclusion of evidence, judge will recess jury and retire to chambers with attorneys to discuss charge. In this case the judge adopted substantially the submissions made by the attorneys.
There is strategy involved; for contributory negligence issues; defendant ask whether the plaintiff failed to exercise ordinary care, plaintiff ask whether defendant was negligent

Question 45

Dominguez objections to the charge

Answer 45

Not reversible if not objected to

Question 46

Dominguez order of charge and argument

Answer 46

Judge must notify attorneys concerning its ruling on each requested charge prior to argument; written charge not required, may be oral

Question 47

Dominguez jury argument

Answer 47

argument is very important. Correlation of raw evidence, reasonable inferences, and legal standards is function

1. illustrate the significance of the evidence
2. persuade the jury of the desired conclusions from the evidence
3. Put the evidence together with an explanation of the often-confusing legal terms in the courts charge.
4. Includes important emotional content. Although controversial, is essential, because most legal conceptions express, at their core, fundamental societal values, which cannot be effectively explored without emotional argument.

Question 48

Dominguez structure of jury argument

Answer 48

1. Plaintiff opens and closes due to having the burden of proof
2. Plaintiff-Short intro praising jury system, explanation of definitions and instructions in the charge, followed by an analysis of special interrogatories and a marshalling of the evidence to produce the desired result in each
3. Defendant-rebut a few select points made by plaintiff, proceed to explain the charge, marshal the evidence from the defendant’s view on each special issue, advocate the conclusion desired by defendant on each, and give the jury the emotional basis for the holding.
4. Plaintiff rebuttal argument reiterate major points during opening, unleashes the plaintiff most powerful emotional basis for the desired holding

Question 49

Dominguez verdict

Answer 49

state law required a non-unanimous verdict 10 of the 12; federal courts require a unanimous verdict

Question 50

Dominguez perfecting the appeal, scheduling

Answer 50

perfection of an appeal requires the satisfaction of certain requirements- including notice of appeal, filing of a cost bond, preparation and filing of the record, filing of appellant’s brief, in addition to requirements imposed by the local rules of the particular appellate court. Each requirement is subject to a time limit. A careful attorney prepares a t time schedule at the commencement of the appeal to ensure that he complies with time requirements

Question 51

Dominguez oral argument on appeal

Answer 51

Many appellate courts consider oral argument less important than is popularly supposed, and the court of appeals in this case invoked a local rule enabling it to determine the case on briefs along