EXAM 4 SHORT ANSWER Q'S Flashcards
Richard Fish, a lawyer, signs an answer denying salient facts in a complaint. So long as Richard at the time genuinely believes these denials are accurate, does he need to worry about Rule 11 liability?
By presenting a signed answer, the attorney is certifying that to the best of their knowledge, information and belief, formed after inquiry reasonable under the circumstances, the denials of factual contentions are warranted on the evidence. Rule 11(b) and 11(b)(4). Thus, Fish has a responsibility to make reasonable inquiry to verify that the denials of factual contentions are warranted before he is protected from Rule 11 sanctions.
- May a party who has, at great expense, discovered the existence of a witness to events involved in a lawsuit properly claim work product protection for that information.
The work product doctrine protects an attorney’s documents prepared in anticipation of litigation (Rule 26(b)(3)) as well as his mental processes and trial strategy (Hickman). Typically, work produce is discoverable only upon showing that the party seeking discovery has substantial need for it and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Rule 26(b)(3), However, the work product doctrine does not protect factual information and the witness’s identity will have to be disclosed in response to a proper discovery request.
Richard Fish makes a completely unjustified discovery request. Opposing counsel, Bobby Donnell, responds with a request for Rule 11 sanctions. How should the court rule and why?
Rule 11(d) sates that Rule 11 sanctions do not apply to discovery requests. Thus, the court should deny the request for Rule 11 sanctions. The appropriate motion would be made under Rule 26(g), which applies to discovery requests.
A small commercial jet crashes killing the single passenger, but the pilot survives. The deceased passenger’s widow demands a report from pilot under Rule 26(a)(2)(B). The defendant airline resists. How should the court rule and why?
Rule 26(a)(2)(B) requires a report from an expert who is retained to provide expert testimony or whose duties as an employee of the party regularly involve providing expert testimony. The pilot appears to be an ordinary witness, because under the stated facts the pilot has not been retained as an expert and is not an employee who regularly provides expert testimony. Thus, he cannot be required to prepare a report under Rule 26(a)(2)(B). Deny.
During trial in federal court, Harmon Rabb brilliantly examines and cross-examines witnesses. Harmon Rabb also makes a splendid closing argument, correctly pointing out that his opponent, Sarah MacKenzie, has presented no evidence on crucial parts of her case. Exhausted by his own oratorical splendor, Harmon Rabb then slumps into his chair while the jury goes to deliberate. When the jury returns a verdict for his opponent, Harmon Rabb promptly moves for judgment as a matter of law. How should the court rule and why?
Under Rule 50(a), Rabb could have moved for judgment as a matter of law at the close of plaintiff’s case or at the close of all the evidence. If Rabb had moved for judgment as a matter of law, then he could make a renewed motion for judgment as a matter of law after the verdict under Rule 50(b). Because Rabb did not move for judgment as a matter of law before the case was submitted to the jury, his motion should be denied.
Einstein purchased a special wide-slotted toaster so he could enjoy toasted bagels. When he sought to toast his first bagel, the toaster ejected a hot bagel with such force that it injured him seriously. Einstein staggered from his apartment to that of a neighbor, Aristotle, who called an ambulance. Einstein filed suit in federal district court alleging a product defect claim against the manufacturer of the toaster. The case proceeds and Einstein’s initial disclosures did not list Aristotle as a witness. What risk does Einstein run if he calls Aristotle as a witness at trial?
In his initial disclosures, Einstein must list the names of witnesses that he may use to support his claims. Rule 26(a)(1)(A). So Aristotle’s information should be disclosed as Einstein likely will use him as a witness to Einstein’s injury. The risk Einstein runs if he calls Aristotle as a witness at trial, after not having listed him as a witness in the initial disclosures, is that court may prohibit Aristotle from testifying. Rule 37(c).
Upon examining the record from a bench trial in the district court, if a court of appeals determines that several factual findings were erroneous should it reverse the verdict below?
In order to reverse the trial court’s decision, the appellate court would have to determine that the trial court’s findings of fact were clearly erroneous as required by Rule 52(a) and that such error affected the substantial right of the parties as required by Rule 61.
