Litigation and other Forms of Advocacy Flashcards
What does frivolous mean?
no good faith argument under current law
no good faith argument to change the law
Can make an argument even if you don’t have all of the facts yet or evidence is TBD
What is the exception to the meritorious claims and contentions rule?
A criminal defendant can make the prosecutor prove every element of the case
In what contexts does the duty of candor to the tribunal apply?
When before a court/arbitration or any other body that can enter a binding judgment. Does not apply to mediation or law making or negotiation
What is required by the duty of candor to the tribunal regarding the law?
- Don’t misstate the law intentional and if you misstate by accident, correct it
- Disclose adverse controlling law if opponent fails to
- Don’t intentionally mischaracterize a case
What is required by the duty of candor to the tribunal regarding the facts?
This comes up less often because the lawyers don’t usually present facts themselves.
- Must either know the fact is true or believe it to be true based on reasonably diligent inquiry
- Don’t knowingly make false statements and if you misstate by accident, correct
- No duty to offer adverse facts
What are a lawyer’s duties to prevent the offering of false evidence? (This includes testimony, physical evidence, basically all evidence and applies in all tribunals/depositions, etc)
- Can’t offer any evidence that the lawyer knows to be false (if KNOW it is false, MUST refuse to offer. If “REASONABLY BELIEVE” it is false, option to refuse to offer)
- If false evidence is offered, must take reasonable remedial measures (supersedes confidentiality!).
- Duty to rectify continues until proceeding and any appeals are finished
When must reasonable remedial measures be taken by a lawyer?
What are “reasonable remedial measures” that must be taken if an attorney realizes that false evidence has been offered?
When the lawyer has offered evidence that has turned out to be false. Doesn’t apply when the lawyer hasn’t offered it.
1) Talk to client and ask them to withdraw/correct the misstatement
2) Maybe ask court to withdraw from the case if there is a rift between you and the client
3) Strike false evidence/withdraw it and inform the judge
Candor to the tribunal trumps duty of confidentiality But never disclose more than you have to
When must you allow your client to offer false evidence?
What steps should you take as the attorney if you have to let your client falsely testify.
When they are testifying at their own criminal trial.
1) try to persuade your client not to do it
2) Consider withdrawal
3) If above fail, inform the judge (some jurisdictions allow narrative testimony in these situations)
- Don’t reference the false testimony in your opening or closing statement
What is the lawyer’s responsibility to prevent criminal or fraudulent conduct that will corrupt the proceedings?
What are examples of criminal or fraudulent conduct
A lawyer must take appropriate measures to prevent such conduct (including disclosure to the court if necessary).
Examples of criminal or fraudulent conduct include:
1) tampering with or falsifying evidence (including coercing witnesses)
I don’t want Person X to talk to the opposing counsel. Person X is not my client. Can I advise them not to?
You cannot advise a person not to talk to opposing counsel unless that person is your client, the client’s relative, or the client’s employee/agent. AND the lawyer reasonably believes that the persons interests will not be harmed by them failing to provide the information to the other side.
Can never advise someone to flee the jurisdiction or hide from a process server
What can you pay to witnesses?
Can pay expert witnesses a fee for preparation
Can reimburse any witness for their expenses for travel, lodging, meals and loss of time (ie what they would have earned working). CANNOT pay a non-expert witness simply for showing up
No contingencies allowed
What are the rules about communicating with jurors for lawyers involved in the case?
What are the rules about communicating with jurors for lawyers who are not involved in the case
During the trial, can’t talk to them about anything at all (not even hi or the weather)
After juror discharge, can interview jurors unless they don’t want to talk or the conversation involves misrepresentation, coercion or harassment
If a lawyer is not connected with the case then they can talk to the jurors but not about the case.
What kinds of public statements are not allowed at trial?
Statements on the following are NOT allowed:
- Character or credibility
- Results of examinations (including lie detector or refusal to take lie detector)
- Whether defendant will plead guilty
- Whether defendant confessed
- Anything inadmissible at trial
What can a lawyer publicly state during trial?
- Routine booking information about the defendant (name occupation, familial status)
- Dry facts of the case that are the the public record
- Can make statements to protect the client from prejudices caused by the opposing counsel’s statement (refute only - “Right of Reply”)
- Can warn of danger to the public
Generally an attorney can’t act as an advocate in a case where the lawyer is likely to be a necessary witness what are the exceptions to this?
Is this kind of disqualification imputed to the firm?
- It must be likely that the lawyer will be called as a witness (remote possibility does not disqualify)
- Testimony concerns uncontested matters or is a mere formality
- Testimony concerns the nature and value of legal services in the case
- Withdrawal would cause substantial hardship to the client (substantial is a high bar)
*This kind of disqualification is not imputed to the firm but generally you need client consent confirmed in writing if another lawyer at the firm takes over. (There is likely a conflict of interest between the lawyer and the client if the lawyer’s choice to represent the client may disadvantage the case and the lawyer has an interest in earning the legal fees)
