Litigation and other forms of advocacy Flashcards
you cant bring a frivolous claim. What does frivolous mean?
no good faith argument under current law or for changing the law
true or false: you may delay litigation to protect your client’s financial interests
false, financial interests are not legitimate
duty of candor only applies to tribunals. What counts as a tribunal?
when you are in front of a natural adjudicator who will issue a binding legal decision
true or false: the duty of candor does not require you to disclose adverse controlling authority if your opponent has not discovered it
false. you must disclose controlling law
true or false: you dont need to mention an adverse controlling authority if your opponent has mention it.
true
you have no general duty to disclose materially adverse facts. What is the exception?
ex parte proceedings
true or false: if you know a witness is going to perjury himself, you cannot call him to the stand
true
what should you do if you learn later that your witness’ testimony was false?
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
true or false: candor to tribunal trumps confidentiality
true, but dont disclose more info than necessary
when does a duty to cure for presenting false evidence end?
when time for appeal has passed or judgment has been affirmed on appeal
what if a criminal D tells you he will lie, can you prevent them from testifying? what are the steps
- counsel client
- motion to withdraw
- 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
when can you tell 3P not to talk to opposing counsel?
only if they are the client’s relative or agent
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
NO
Fairness of trials: can you state your personal opinions?
NO
what is the exception for ex party communications with the judge?
emergency
can you say good morning to the juror in the same elevator?
no
can you stick your tongue out in court?
No
can you talk to jurors after the case is closed and they are excused?
generally yes unless the law prohibits or if you harass them
can you make a public statement if it wont materially prejudice the case?
yes, neither can your partner
e.g. dry facts, names of people, warn public of danger
can a lawyer work on a trial and be a witness?
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
if you are disqualified from a case because you are a necessary witness, can your colleague take over?
yes, but need client IWC
are you subject to discipline for offering false evidence if you reasonably believed the evidence to be false?
NO, only if you KNEW of falsity
After leaving a pretrial hearing, atty states how the judge ruled on a particular motion -> is this a permitted public statement?
yes, this is a dry fact
