Litigation and other forms of advocacy

Question 1

you cant bring a frivolous claim. What does frivolous mean?

Answer 1

no good faith argument under current law or for changing the law

Question 2

true or false: you may delay litigation to protect your client’s financial interests

Answer 2

false, financial interests are not legitimate

Question 3

duty of candor only applies to tribunals. What counts as a tribunal?

Answer 3

when you are in front of a natural adjudicator who will issue a binding legal decision

Question 4

true or false: the duty of candor does not require you to disclose adverse controlling authority if your opponent has not discovered it

Answer 4

false. you must disclose controlling law

Question 5

true or false: you dont need to mention an adverse controlling authority if your opponent has mention it.

Answer 5

true

Question 6

you have no general duty to disclose materially adverse facts. What is the exception?

Answer 6

ex parte proceedings

Question 7

true or false: if you know a witness is going to perjury himself, you cannot call him to the stand

Answer 7

true

Question 8

what should you do if you learn later that your witness’ testimony was false?

Answer 8

you must take reasonable remedial measures:
1. talk to your client, if they dont agree, then
2. ask the court for permission to withdraw
3. even with withdrawal, you must let judge know to strike the false evidence or reduce its effect

Question 9

true or false: candor to tribunal trumps confidentiality

Answer 9

true, but dont disclose more info than necessary

Question 10

when does a duty to cure for presenting false evidence end?

Answer 10

when time for appeal has passed or judgment has been affirmed on appeal

Question 11

what if a criminal D tells you he will lie, can you prevent them from testifying? what are the steps

Answer 11

1. counsel client
2. motion to withdraw
3. tell judge what is going on

recommended: in jx that allows narrative testimony, you can ask narrative, open-ended questions about the thing they are going to perjure themselves on

Question 12

when can you tell 3P not to talk to opposing counsel?

Answer 12

only if they are the client’s relative or agent

Question 13

Fairness of trials: can you assert personal knowledge in a trial? e.g. I’ve driven that road many times and it only takes 30 minutes

Answer 13

NO

Question 14

Fairness of trials: can you state your personal opinions?

Answer 14

NO

Question 15

what is the exception for ex party communications with the judge?

Answer 15

emergency

Question 16

can you say good morning to the juror in the same elevator?

Answer 16

no

Question 17

can you stick your tongue out in court?

Answer 17

No

Question 18

can you talk to jurors after the case is closed and they are excused?

Answer 18

generally yes unless the law prohibits or if you harass them

Question 19

can you make a public statement if it wont materially prejudice the case?

Answer 19

yes, neither can your partner

e.g. dry facts, names of people, warn public of danger

Question 20

can a lawyer work on a trial and be a witness?

Answer 20

you cannot advocate in a trial if you are likely a NECESSARY witness

you can testify if
1. testimony relates to uncontested matters or mere formality
2. testimony pertains to nature or value of legal services in the CURRENT case
3. if your disqualification in the case would case a substantial hardship in the case

Question 21

if you are disqualified from a case because you are a necessary witness, can your colleague take over?

Answer 21

yes, but need client IWC

Question 22

are you subject to discipline for offering false evidence if you reasonably believed the evidence to be false?

Answer 22

NO, only if you KNEW of falsity

Question 23

After leaving a pretrial hearing, atty states how the judge ruled on a particular motion -> is this a permitted public statement?

Answer 23

yes, this is a dry fact