Learning About the Case / Trial Matters Flashcards
ANSWER AND MOTIONS: COMPLAINT (Response)
What are the 2 ways a defending party can respond to a complaint?
Under FRCP 12, a defending party may respond in one of 2 ways:
(i) by motion; or
(ii) by answer
The response must be NO later than 21 DAYS after service of process on her
THE ANSWER is a pleading: ∆ does 2 things in the answer….
1. ∆ responds to allegations of the complaint:
(i) admit;
(ii) deny (must explicitly deny allegation(s) unless
default is that ∆ will be deemed to have admitted to
allegation(s);
(iii) admit that ∆ lacks sufficient info to admit or deny
(this has the affect of a denial but ∆ w/DUTY to
investigate items w/in his control)
AND
2. ∆ raises affirmative defenses → Affirmative defenses MUST be included in the answer. OTHERWISE they WILL NOT be allowed to be raised at trial
A MOTION is NOT a pleadings: A motion is a request for a court order. MOTIONS ask the court to do something.
Some motions are issues of form:
(i) Motion for more definitive statement
(ii) Motion to strike (aimed at immaterial or
scandalous things)
Other motions are of substance
(i) Motion to dismiss based on an affirmative defense
RULE 12(b) DEFENSES
What are the 7 defenses that can be raised in EITHER the answer or a motion?
1) Lack of SMJ ***;
2) Lack of PJ *;
3) Improper venue *;
4) Improper process (a problem w/ the service docs) *;
5) Improper service of process *;
6) Failure to state claim for which relief can be granted **;
7) Failure to join an indispensable party **
———–GUARANTEED BAR EXAM QUESTIONS ———–
* These defenses MUST be the FIRST Rule 12 response → They MUST be PLACE in EITHER the MOTION or ANSWER, IF NOT INCLUDED they WILL be WAIVED
→ The court still has discretion to transfer venue even if issue is raised later in trial for the first time and was deemed waived
** These defenses can be raised for the first time ANY TIME thru the trial
*** This defense can NEVER be waived (i.e. can be raised any time, even on appeal) → BUT a lack of SMJ will not dismiss the case. The case will be REMANDED to state ct
COMPLAINT
What are the 3 requirements for a complaint?
A Complaint MUST contain:
1) Stmt of subject matter jrx
2) Short/plain stmt of the claim, showing that party is entitled to relief; Need not be made w/ great specificity or particularity→ BUT must plead facts supporting a plausible claim
EXCEPTIONS to PARTICULARILTY: these 3 three topic req specificity/particularity (more facts) (***COMMON BAR QUESTION!):
(i) Fraud
(ii) Mistake
(iii) Special damages
3) Demand for RELIEF SOUGHT (e.g., damages, injunction, declatory judgement) → THIS does NOT LIMIT what can be recovered
PLEADING AMENDMENTS
What are the 4 fact patterns that pertain to amending a pleading and what is the result under each fact pattern?
The following 4 fact patterns that pertain to amending a pleading:
- Right to Amend: π’s and ∆’s Rights to Amend
- NO Right to Amend so Seeking Leave of the Court
- Variance
- ## Amendment after SoL has run out (“Relation Back”)Right to Amend: π’s and ∆’s Rights to Amend
(i) π has a RIGHT TO AMEND ONLY ONCE and it MUST be w/in 21 days after ∆ serves his first Rule 12 response
(ii) ∆ has a RIGHT TO AMEND w/in 21 days after ∆ serves his answer
- —————–
2. NO Right to Amend so Seeking Leave of the Court
A party who does NOT have a right to amend may seek leave of the court. LEAVE WILL BE GRANTED IF “justice so requires.” The court will look at the following factors in making this determination:
(i) Delay
(ii) Prejudice
(iii) Futility of the amendment
- —————–
3. Variance = When the evidence at trail DOES NOT match what was pleaded
When NEW assertions/evidence are made at trial that do not match w/the pleading they will NOT BE admissible IF the other party OBJECTS
If the other party DOES NOT OBJECT to the new assertions/evidence that were not originally in the pleadings then at or after the trial, the party making the assertions can move to amend the complaint to conform to the assertions/evidence
- Amendment after SoL has run out (“Relation Back”)
(i) Relation Back to Join a NEW CLAIM after the SoL for an amendment has run:
Amended pleadings to join a NEW CLAIM can “Relate Back” if they involve the same T/O as the original pleading.
→ This means that the amended pleading is treated as if it was filed when the original was filed so as to avoid a SoL problem
(i) Relation Back to CHANGE a ∆ after the SoL for an amendment has run:
Amended pleadings to change a ∆ can “Relate Back” if the following 3 criteria are met:
- It concerns the same T/O as the original claim;
- The new party KNEW of this case w/in 120 days of its filing; AND
- The new party KNEW that, but for a mistake, she would have been named originally
* **ON the BAR EXAM, the only facts that will allow for relation back to change a defendant are: “When π sued the wrong ∆ AND the correct ∆ KNEW about it”
(e. g. when the name of ∆ on original complaint was incorrect but the correct ∆ knew he was the intended recipient)
SUPPLEMENTAL PLEADING
Supplemental pleadings set forth things that happened AFTER the pleading was filed.
→ They pertain to things that had NOT happened at the time of the filing
There is NEVER a RIGHT to file a supplemental pleading → it is always discretionary
Note: This is different from amended pleadings which are about things that happened before the pleading was filed but were not asserted until later.
RULE 11
Rule 11 applies to ALL documents except for discovery (which are covered by another rule)
Rule 11 = When the lawyer or pro se party signs documents, she certifies to the best of her knowledge and belief after reasonable inquiry that:
(i) the paper is not for an improper PURPOSE; and
(ii) the legal contentions are warranted by LAW (or a non-frivolous argument for law change); and
(iii) the FACTUAL CONTENTIONS and denials of factual contentions have evidentiary support (or are likely to after further investigation)
Rule 11 = A certification is also made EVERY time you “present” a position to the court (e.g. advocating a position taken in the document)
Rule 11 SANCTIONS can be ordered against:
(i) the PARTY;
(ii) the ATTORNEY; and
(iii) the FIRM
SAFE HARBOR: A party has 21 days in which to fix a Rule 11 violation. Otherwise a motion for sanctions on the party can be filed.
NOTE: The purpose of Rule 11 sanctions is to DETER and NOT to PUNISH
The court itself may raise Rule 11 problems sua sponte
EXPERT WITNESSES
What must each party disclose to the opposing party about an expert witness “who may be used at trial?”
- The identity of the Expert Witness
- A written report prepared by the Expert Witness that MUST include:
(i) opinions the EW will express
(ii) the basis for the opinions
(iii) facts used to form the opinions
(iv) the expert witness’ qualifications; AND
(v) how much the EW is being paid
Note: Earlier drafts of the report are protected work product
AFTER the EW written report is provided, the opposing party may take a DEPOSITION of the EW:
(i) the opposing party should Subpoena the EW to compel her attendance
(ii) the opposing party MUST pay the EW a reasonable fee per hour
NOTE: A doctor who treated a patient that is a party to the suit is not treated as an EW b/c he “developed opinions for purposes other than the litigation”
NOTE: A party who was hired to help in the preparation of the case is a CONSULTING EXPERT and NOT an EW. Any facts and opinions of consulting expert are NOT discovererable unless in exceptional circumstances
Pre Trial Required Discolures
NO LATER THAN 30 DAYS BEFORE TRIAL, parties MUST give detailed information about the trial evidence including:
- Identity of witnesses who will testify live or by deposition
- Documents, ESI, and other things to be introduced at trial
DISCOVERY TOOLS
When can discovery begin?
What discovery tools may be utilized?
What are some responsibilities for respondents?
Commencing Discovery: In the absence of a court order or stipulation providing otherwise, a party may first request for discovery AFTER THE RULE 26(f) CONFERENCE ------------------ DISCOVERY TOOLS: 1. DEPOSITION
- INTERROGATORIES (limited to parties only)
- REQUESTS TO PRODUCE
- MEDICAL EXAM (physical or mental) (limited to parties and those in legal custody/control of parties only)
- ## REQUEST FOR ADMISSION (limited to parties only)Tools Allowed for Parties:
All discovery tools may be used to get information from parties
Tools Allowed for Non-Parties:
There are limits on which tools may be used for non parties and on how they can be used
– only allowed to receive deposition and requests to produce
– medical exam allowed if non party is in legal control of a party
——————
ALL RESPONDENTS MUST:
1. Sign substantive answers made to questions under oath
2. Every discovery request and response is signed by counsel certifying:
(i) it is warranted;
(ii) it is not interposed for improper purpose; and
(iii) it is not unduly burdensome
——————
DUTY TO SUPPLEMENT
There is a duty to supplement for any changes after the fact to answers to discovery requests which were either:
1. Interrogatories
2. Requests for Production; or
3. Requests for Admission
DISCOVERY TOOL #1: DEPOSITION
What is a deposition and what are the limits on depositions?
Deposition = Live testimony in response to questions by counsel or pro se parties.
Questions are usually oral but may be written (read by court reporter if written).
Deponent testifies under oath
Deposition is recorded by audio, video or stenography and a transcript can be made.
USE OF DEPOSITIONS AT TRIAL
Depositions may be used at trial to:
1. Impeach the deponent
2. Any purpose if the deponent is an adverse party
3. Any purpose if the deponent (regardless of whether a party) is unavailable for trial; unless that absence was procured by the party seeking to introduce the evidence
LIMITATIONS:
- The Deponent is NOT rqrd to undertake a review before the deposition → may testify based on current recollection
- Deponent may be a party of a non party → non parties should be sent subpeona to COMPEL attendance
- Subpeona “Duces Tecum” → requires deponent to bring ALL relevant materials to the deposition
- Farthest Travel Requirement for a non party (unless the party consents otherwise) = 100 miles from residence or place of work
- May not take more than 10 depositions
- May not depose the same person twice w/o court approval or stipulation
- Deposition may not exceed one day w/o court approval or stipulation
- Deposition may not exceed 7 HOURS w/o court approval or stipulation
DISCOVERY: REQUIRED DISCLOSURES
INITIAL DISCLOSURES
What are initial disclosures and when must they be made?
TIMING
Must be made w/in 14 days of the Rule 26(f) conference
Initial Disclosures Require for Each Party to Disclose:
- IDENTITY of persons who have discoverable information that the disclosing party may use to SUPPORT her claim or defense
Provide Name and Telephone
Disclosing party DOES NOT have to disclose identity of parties w/info that is adverse/does not support her case
- Any DOCUMENTS, Other Media (photos, audio, ESI) or tangible items (e.g. tire remnants) that may be used to SUPPORT her claim or defense
Copies or a description of the documents are sufficient
Disclosing party DOES NOT have to disclose media w/info that is adverse/does not support her case
Disclosing party DOES NOT need to disclose items which she is aware of but which are not within her control
- COMPUTATION and documentation of any monetary relief being sought
- INSURANCE coverage: ∆ must disclose any insurance that may cover all or part of potential judgment
DISCOVERY TOOL #2: INTERROGATORIES
What are interrogatories and what are the limitations and timing requirements?
Interrogatory = written questions to be answered in writing under oath.
Interrogatories may only be sent to PARTIES ONLY
Maximum number of interrogatories = 25 questions (any sub-parts to a question treated as another question)
Responding party may respond by providing business records in which answers may be found rather than answering the questions directly IF it would be burdensome for respondent to sift through records for a response
A party may NOT use their OWN answers to interrogatories at trial
Timing:
A party has 30 days from the service to respond
DISCOVERY TOOL #3: REQUESTS TO PRODUCE
What are requests to produce and what are the limitations and timing requirements?
REQUEST TO PRODUCE = a request that someone make available documents and things (including ESI) for review and for copying or to permit entrance into a designated property to inspect, measure, etc.
Requests to non parties should be made with a subpoena to compel action
The REQUESTING party specifies the form in which ESI is to produced and the other party CANNOT OBJECT
Timing:
A party has 30 days from the service to respond stating that the material will be produced or asserting objections
DISCOVERY TOOL #4: MEDICAL EXAM (physical or mental)
What are medical exam requests and what are the limitations and timing requirements?
Medical exams REQUIRE a COURT ORDER
To get a court order, the requesting party must show:
- The person for which examination is sought is of health that is in ACTUAL CONTROVERSY; AND
- Good Cause
ONLY People that may be compelled to submit to medical exam are:
- The actual party in the case; OR
- Someone in the party’s custody or LEGAL control
(e. g. Parent to Child; BUT employer to employees DO NOT meet this requirement)
The party SEEKING the exam gets to choose the licensed person to perform the exam
The EXAMINED party may request a copy of the report but seeing the report will WAIVES PRIVILEGE concerning testimony pertaining to the examination. This party would then need to produce reports from his own doctors concerning the condition in question.
DISCOVERY TOOL #5: REQUEST FOR ADMISSION
What is a request for admission and what are the limitations and timing requirements?
Request for Admission = a written request that someone admit certain things
Request is limited to parties only
RESPONDING PARTY must admit or deny allegations expressly or object to the request. Failure not to do anything will be an deemed as an admittance to the allegations.
RESPONDING PARTY may state that she does not know the answer ONLY IF she states that she made a reasonable inquiry and cannot find enough information to be able to admit or deny.
Request is often used to authenticate documents (e.g. “admit that this is the contract”)
Timing:
A party has 30 days from the service to respond
