PRE TRIAL CONSIDERATIONS

Question 1

How do you determine THE EXISTENCE OF A CAUSE OF ACTION?

Answer 1

• Examine both the law and the facts in the case.
  a. First, determine what general area of substantive law applies to the case
  b. Secondly, narrow it to identify a specific topic
  c. Then examine the specific area and determine the facts or elements thatmust be present before a cause of action is created

Question 2

What elements have to be proved to establish tort of Negligence cause of action?

Answer 2

1. The defendant must have a duty of due care toward the victim;
2. That duty must have been breached (by a careless act);
3. The defendant’s careless act must be the actual cause of the damages;
4. The defendant’s careless act must be the proximate cause of the damages (i.e., the damages must be foreseeable);
5. Damages must have been sustained

Once the elements of a cause of action have been ascertained, review the case itself to see if facts exist that support each of the elements.

Question 3

Why is Identifying the elements of a cause of action important in the litigation process?

Answer 3

*HELPS AN ADVOCATE WIN: each of the elements must be proven at trial for the plaintiff to prevail, i.e. to win a case the advocate must present evidence that supports each element of the cause of action
* HELPS DRAFT PLEADINGS: The initial pleadings must allege facts that support each element of the cause of action
* ENABLES PRE TRIAL PREPARATION: Knowing the elements of a cause of action in a particular case is essential to understanding pre-trial
preparation
* ENABLES RELEVANT DISCOVERY: Understanding what you must provide at trial enables you to gather appropriate evidence and conduct relevant discovery
* IDENTIFY OPPOSING LEGAL DEFECIENCIES: t equips one to prepare pleadings that comply with legal requirements and to review opposing pleadings for legal deficiencies

Question 4

What is the STATUTE OF LIMITATIONS?

Answer 4

Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of the merits of the case

e.g. a plaintiff has three years from the date of an accident in which to file an action for personal injuries. Because the date of the accident is easily determined from the police reports and
witnesses, the statute of limitations is calculated with no difficulty

Question 5

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Defamation?

Answer 5

1 year

Question 6

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Actions against state corporations?

Answer 6

1 year

Question 7

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Actions against government?

Answer 7

1 year

Question 8

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Tort?

Answer 8

3 years

Question 9

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Contract?

Answer 9

6 years

Question 10

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Land?

Answer 10

12 years

Question 11

Limitation of Actions Act, Cap. 22
ACTION TIME LIMIT for Land Control Act?

Answer 11

If consent for the sale of the LCB is not secured
within 6 months of the Agreement, the transaction
is void

Question 12

How does one CALCULATE THE STATUTE OF LIMITATIONS?

Answer 12

• In calculating the statute of limitations, the first day i.e date of the incident is not counted, the last day is.
• E.g. if you are filing a lawsuit for injuries from an automobile accident and the accident happened on Friday, January 28th, 2009. Begin counting days on January 29th, 2009.
  Assuming that you have a three-year statute of limitations, this means your time would run out on January 28th, 2012, and you would have to file your complaint by such date
• However, if that day is a court holiday, you would have to wait until the next court day to file your complaint

Question 13

What is TOLLING THE STATUTE OF LIMITATIONS?

Answer 13

This means when a statute is tolled, the time stops running.

• The most common reason a statute of limitations is tolled is that the Plaintiff is a minor, it is tolled and only begins to run once the plaintiff reaches the age of majority
• Do not assume, however, that the statute of limitations is always tolled during the child’s minority (you must check the appropriate statutory law)

Question 14

What is a CLAIM STATUTE?

Answer 14

Some types of cases are governed by special statutes which require that a written claim be presented to the defendant before a lawsuit can be filed

• These statutes are common when a governmental entity is being sued and there are time limits for presenting the claim
• They require that the prospective defendant be notified that a claim is pending, who is making the claim, what the claim is for and the amount of the claim – the party then has the opportunity to pay the claim before any lawsuit is filed

Question 15

What are LACHES?

Answer 15

These are Equitable cases (i.e. cases in which the plaintiff is asking for something other than monetary damages) are governed by another limitation known as laches
* Laches is an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has lapsed, even though the statute of limitations has not expired

• Remember: laches is only available for equitable causes of action

Question 15

What is a TICKLER SYSTEM?

Answer 15

Missing a statute of limitations can result in a malpractice case against a law firm
* Therefore, all litigation firms have calendar or tracking systems to remind them of these or other important dates – these calendaring systems are known as ‘tickler systems’

Question 16

What is FEASIBILITY OF THE LAW SUIT?

Answer 16

• Even though an advocate may determine that a case has merit, he/she may nevertheless decide that the lawsuit is not practical
• Litigation takes a great deal of time and can cost a great deal of money – not only in advocates’ fees, but also in costs
• Before an advocate accepts a case, he should always review it to see if it is practical

Question 17

How does an Advocate turn down a case?

Answer 17

An advocate must clearly communicate turning down a case to the concerned individual
* This should be done in writing so that there is a record of the fact
* In turning down a case, an advocate must exercise care in stating an opinion regarding the merits of the case to the individual, and it is also advisable to warn the person about any possible statute of limitations.

Question 18

Draft how you would turn down a case in writting?

Answer 18

Thank you for considering us regarding your dispute with ABC Corporation. As I explained to you on the telephone, our law firm is presently unable to represent you in this matter. Please note that our inability to accept your case is not a reflection or comment on the merits of your case. If you wish to pursue this matter you should consult other legal advice. If you decide to do so, you should act
as soon as possible. As we have previously explained to you, the statute of limitations in this kind of cases is three years from the date of injury. If you have not filed a lawsuit within that time you will be prevented from doing so.

Question 19

What are the ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE?

Answer 19

1. Constant effective communication with client
2. Not communicating with opposing party through their advocate (only possible with opposing party doesn’t have a lawyer)
3. Client has a Duty of confidentiality Chapter 4, Bill of Rights) and Article 31(d), Constitution 2010 which state every person has a right to privacy which includes the right not to have the privacy of their communications infringed
4. Honesty: an advocate must never knowingly make a false representation about a case to a court or other tribunal
5. FEES charged by an advocate should not be unreasonable or unconscionable
   Fee arrangements, including any additional expenses, should be clearly explained to the client
   o The litigation fee can be either set at a flat rate, fixed sum, or in an hourly billing, where the client is charged a) a fixed amount for each hour the law firm spends for the case. There can also be a contingent fee, which is a common arrangement in personal injury cases – in these fee arrangements, the advocate takes a percentage of whatever recovery is obtained
   o Contingent fees have been allowed on the theory that they permit people to pursue cases they could not afford
6. RETAINER AGREEMENT IS A MUST. Also known as the Written fee arrangements – the fee arrangement between the client and the advocate should always be in writing and signed by the client.
7. CAN’T SHARE FEES – generally, an advocate cannot share a fee in a case with a non-lawyer
8. HAVE A TRUST A CLIENT TRUST ACCOUNT: an advocate cannot co-mingle his own assets or property with the property belonging to a client. The advocate should have a trust account into which they deposit all the money belonging to their clients
   o In litigation, trust accounts are utilized for two main purposes – advances by the client and settlement or
   satisfaction of judgments
   o In the latter case, the settlement cheque is primarily the property of the client, however, the advocate has a lien against the settlement
   o However, the advocate cannot put the settlement into his personal account, it can only go to the trust account