Litigation and Advocacy Flashcards
What is a lawyer prevented from doing?
Bringing a frivolous claim
Assert a frivolous claim
Take a frivolous position
What does it mean for something to be frivolous?
No good faith argument under current law and changing law.
What is an exception to the standard that a lawyer cannot make a frivolous claim?
When representing a criminal defendant, can make prosecutor prove every element.
What is the standard regarding expediting litigation?
Must make a reasonable effort to expedite litigation to advance client’s legitimate interest.
Is a financial benefit a legitimate client interest?
No
What is candor to the tribunal?
Honesty when advocating before an official or body that issues binding legal judgment.
Is mediation a tribunal?
No
Is arguing in front of a government agency a tribunal?
No
What is the standard of candor in the law?
Cannot knowingly make false statements of law.
If the client’s financial benefit interest is nobel, is it a legitimate interest?
No
If an attorney acts frivolously, what are the subject to?
Sanctions and Discipline.
An attorney _____ correct unintentional material false statements.
Must
An attorney _____ disclose adverse controlling law if opponent fails to.
Must - if from controlling jurisdiction even if the other side fails to.
What are the rule regarding Candor about facts?
- Cannot knowingly make a false statement of facts.
- Must correct unintentional, material false statements
- No duty to voluntary facts.
When does the candor of facts apply?
When you argue before the court or when you submit an affidavit on your own behalf.
Does the candor of facts apply when submitting documents to the court?
No
True or False: There is no duty to volunteer facts in ex parte proceedings.
False - you must tell the judge all of the facts.
What are the rules regarding false evidence?
1) Cannot offer evidence if you know its false
2) May refuse to offer evidence you reasonably believe is false
3) If false evidence is offered, must take reasonable remedial efforts.
4) Duty to rectify continues until all proceedings and appeals are over.
What applies to the rule of false evidence?
Testimony and physical evidence.
What do you do if you represent a client if they give false testimony?
- Persuade the client not to do it.
- Consider withdrawal from the court - and must take steps to cancel effect of evidence.
- Disclose the situation to the judge.
(Any of the 3)
What trumps: Duty to tribunal or client confidentiality?
Duty to tribunal of candor.
What happens if the client insists on providing false testimony in a criminal case?
Some states allow narrative testimony where the lawyer makes a general statement and client states what they want to say.
What is the fairness standard to opposing counsel?
1) Cannot hide/tamper/falsify evidence
2) Make frivolous discovery requests
3) Advise a person not to talk to the otherside (unless its your client, their relative, or their agent)
4) Make unlawful payments to witnesses
5) Violate a court order.
What can you pay for regular witness?
Expenses for appearing in court.
Can you pay a regular witness a fee per hour for testifying?
No
Can you pay an expert fees and expenses?
Yes must be reasonable.
What is required for fairness in trials?
Cant allude to anything inadmissible.
Cannot assert personal knowledge.
Cannot state opinion about justness of cause, credibility of witness, or guilt or innocence.
What is the standard about impartiality and decorum to tribunal?
Cannot attempt to influence court or jurors.
Cannot disrupt proceedings.
Cannot speak to judge or court officials without otherwise present.
Cannot talk to jury about anything during case.
When is jury communication allowed?
Jury selection
Opening and closing arguments
After case is over.
Are post discharge intereviews allowed with jurors?
Yes- unless juror doesn’t want to talk
Law says no
Court says no
Or it involves misrepresentation/coercion/harrassment
What are permitted statements a lawyer can make?
Dry facts of case
Right to reply to what the otherwide said
A lawyer cannot advocate as counsel where …
lawyer is a necessary witness.
What are the exceptions to disqualification for attorney being a witness?
- Witness for uncontested/formality - signing of doc
- Testimony is about nature and value of legal services
- Withdrawal would could substantial hardship for the client.
Is attorney disqualification imputed for firm?
Generally not but need client consent in writing for another attorney in the firm to take the matter.
Is it frivolous to assert a position without first fully substantiating the facts?
No
Is it frivolous to assert a position knowing that vital evidence can only be discovered through discovering proceedings?
No
Is it frivolous to assert a position even though the lawyer believes it wont prevail?
No
Despite the general rule against taking frivolous positions, lawyer for defendant in criminal case or proceeding that could result in incarceration may conduct the defense so that the prosecutor…
must prove every element of the crime.
True or false: A lawyer can ask for a postponement.
Yes - but should not make a habit of it.
Can you be subject to discipline for causing a delay in a case because the client told you it would serve their financial interest?
Yes
What is the standard about the candor of applicable law?
Lawyer must be candid with the court about the law that applies to the case.
When is an attorney subject to discipline about a false statement of law?
When they knowingly make a false statement or fail to correct a previously made false statement of material law.
Is an attorney subject to discipline for failing to disclose to the court a legal authority in the controlling jurisdiction that is directly adverse to the client’s position?
Yes
Is an attorney free to argue that cited authority is not sound and should not be followed?
Yes
what does it mean for a lawyer to know?
Actual knowledge or knowledge inferred from circumstances.
What is chicanery?
the use of trickery to achieve a political, financial, or legal purpose.
Is a lawyer subject to discipline for engaging in chicanery?
Yes
What are examples of chicanery?
Referring to inadmissible material.
Asserting personal knowledge of contested facts.
Asserting personal opinion
Using threats to gain advantage in civil case.
Can a lawyer make an argument based on the evidence concerning justness, creditability, culpability of civil litigation; or innocence or guilt of the accused?
Yes
True or False: Attorney should not use adversary disciplinary violation as a bargaining chip in case.
True
True or False: A lawyer who is not connected to the case may talk to a juror or prospective juror but just now about the case.
True
Can an attorney review a juror or potential juror’s public internet presence?
Yes
Can an attorney sent a juror an access or friend request directly or indirectly?
No this is ex parte communication.
True or False: Prosecutor must not make extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.
True
What is a frivolous position?
one that can’t be supported by a good faith argument under existing law and that can’t be supported by a good faith argument for changing the existing law.
Is it frivolous to assert a position the lawyer will think will fail?
No
Is an attorney subject to discipline for not reporting a case that goes against their client in a different jurisidction?
No - An attorney is subject to discipline for knowingly failing to disclose to the court a legal authority in the controlling jurisdiction that’s directly adverse to the client’s position and that hasn’t been disclosed by the opposing counsel. Not subject to discipline for failing to disclose case in a non controlling jurisdiction.
In a civil case, a lawyer _____ refuse to offer evidence she knows is false.
Must
If a client states that it will testify falsly, can the lawyer call the client to the stand in a civil matter?
No
What happens if lawyer later finds out testimony was false?
the lawyer must take reasonable remedial measures (try to persuade the client to cooperate in withdrawing or correcting the false evidence; consider withdrawal; and disclose the situation to the judge if all else fails)
A lawyer ____ refuse to offer evidence that she reasonably believes is false, except for ___.
May
a criminal defendant’s testimony on his own behalf.
If you only suspect your criminal def client might lie, do you have to let them testify?
Yes
When a criminal defendant client is about to testify falsely, or has already done so, what does a lawyer have to balance?
balance her duty of candor to the tribunal with the defendant’s constitutional right to testify on his own behalf.
A lawyer is subject to discipline for _________ offering false evidence
knowingly
True or False: negligent failure to investigate the evidence will not result in discipline.
True
When does the duty to rectify false evidence ends?
Until the end of the proceedings, which means when a final judgment has been affirmed on appeal or the time for appeal has expired.
Is giving an expert witness a bonus for testimony upon winning the case proper?
No
A lawyer may advise a person not to voluntarily give information to an opponent or other party if the following conditions are met:
(i) the person is a client, or a relative, employee, or agent of a client; and (ii) the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information.
True or False: The client’s consent is irrelevant to whether the lawyer may serve as both trial counsel and witness.
True
