Pretrial Procedures Flashcards
Complaint
Pretrial Procedures — Pleadings, Answers, Complaints
Timing:
* Filing of Complaint commences Statute of Limitations.
* Service of Complaint w/in 90 days of filing.
Elements:
1. Statement of Jurisdiction (short and plain basis)
2. Statement of Facts — what happened (not theory)
3. Demand for Relief (Damages)
Specific Complaint:
* Required for Fraud and Special Damages (i.e. unique money damages)
Answer
Pretrial Procedures — Pleadings, Answers, Complaints
Elements:
1. Signed by lawyer
2. Whatever is not denied is admitted
Timing:
* Served w/in 21 days of service of Complaint.
Affirmative Defenses
Pretrial Procedures — Pleadings, Answers, Complaints
Requirement:
* Affirmative Defenses need to be specifically pled in answer.
List of Affirmative Defenses:
1. Contributory Negligence
2. Statute of Frauds
3. Statute of Limitations
4. Illegality
5. Duress
(CSSID: Cats Sleep Soundly In Dens)
Amendments
Pretrial Procedures — Pleadings, Answers, Complaints
Amendment as of Right:
* Once within 21 days of service of pleading
* No need for persmission.
After 21 Days:
* Need Court’s permission (by leave of court)
* “When justice so requires”
Relation Back:
* To the date of the original pleading.
* “Arose out of the same conduct, transaction,
or occurrence”
Relation Back (Changing PARTIES):
1) Same conduct, transaction, or occurrence
2) Within 90 days of filing the party had notice
3) Knew/should have known but for mistake of ID
Rule 11
Pretrial Procedures — Pleadings, Answers, Complaints
Definition – Rule 11
* Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim
* Prevents lawyer from making stuff up.*
Key Words:
1. Warranted by existing law
2. Evidentiary support
3. No improper purpose
Court CANNOT impose monetary sanction on party for violating Rule 11 if represented by attorney.
Counterclaims & Cross Claim
Pretrial Procedures — Adding or Changing Parties & Claims
Counterclaims:
* Defendant raises a claim back at the plaintiff
Compulsory Counterclaim:
1) Same transaction or occurrence
2) Supplemental jurisdiction (i.e. no need for separate jurisdiction)
Permissive Counterclaim:
1) NOT same transaction or occurrence
2) Needs independent jurisdiction
Cross Claim:
1) Co-party (P vs. P, or D vs. D)
2) Same transaction or occurrence
3) Actual damage (damages)
Joinder
Pretrial Procedures — Adding or Changing Parties & Claims
Permissive Joinder:
1) Single transaction or occurrence
2) Common questions of law/fact
Compulsory Joinder:
* Party needs to be joined or unfair
* Two types —
1) Necessary Party = Impair Interest
* Complete relief could not be afforded w/o them, but
* If cannot join due to jurisdiction – Case may STILL PROCEED
* i.e. must not destroy jurisdiction
2) Indispensable Party = Prejudice
* If cannot join due to jurisdiction – Case must be DISMISSED
Necessary = Impair; Indespensable = Prejudice
- At option of Plaintiff: May join multiple Defendants; same requirements as permissive joinder.
- Party can join as many claims as long as SMJ not ruined.
Class Certification
Pretrial Procedures — Adding or Changing Parties & Claims
Certification:
1) Size — so big that individual claims impractical
2) Common Question — of law/fact among plaintiffs
3) Typical — claims of representatives have to be “typical” w/ the rest
4) Representation/Conflict — representatives will fairly represent/protect class
Appealability — If certification denied, MAY be appealed.
Diversity in Class Actions:
1) Citizenship of the named representatives
2) One member must meet $75K+
* OR the sum of claims is $5 million
Subclass OK.
Types of Class Actions
Pretrial Procedures — Adding or Changing Parties & Claims
Types of Class Actions:
B1 — Impairment of Interests
* Members MAY NOT OPT OUT
* Notice NOT required, in discretion of Court
B2 — Injunctive Relief
* Members MAY NOT OPT OUT
* Notice NOT required, in discretion of Court
B3 — Common Question (the superior method)
* Member MAY OPT OUT
* Notice to ALL members
Mail Notice OK if imember info can be obtained by reasonable effort.
Intervention
Pretrial Procedures — Adding or Changing Parties & Claims
Definition:
* Party not part of original suit now wants to join.
Intervention as of Right:
1) Interest in property/transaction
2) Interest is impaired
3) NO Court permission required
Permissive Intervention:
1) Claim/defense has common question of law/fact
2) Court permission IS required
Impleader & Interpleader
Pretrial Procedures — Adding or Changing Parties & Claims
Interpleader:
* 1 party owes something to 2 or more people
* Can force them to fight how much
Statutory Interpleader:
1) Nationwide Service of Process allowed
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond
Rule Interpleader:
1) NO Nationwide Service
2) Complete Diversity between claimant & ALL opponents
3) $75K+ requirement
4) NOT required to deposit money
Impleader:
* Adding a 3rd party defendant who owes part or all of claim
* D believes somebody owes them for part/all of claim (e.g. contribution or indemnification)
Discoverable
Pretrial Procedures — Discovery
Discoverable:
1) Not privileged
2) Relevant
3) “Proportional to needs of the case”
Admissibility:
* Discoverable information is admissible at trial.
Duty to Supplement:
* Duty to supplement incomplete or wrong information
* Must be donw in a timely manner.
Witnesses
Pretrial Procedures — Discovery
Witnesses:
1) All discoverable
2) Party to give ID list of possible witnesses
EXPERT — Testifying:
1) MUST provide ID.
2) Expert must prepare report (e.g. opinions, basis, data/exhibits, compensation)
EXPERT — Not Testifying:
* Discoverable only in “Exceptional Circumstances”
Work Product
Pretrial Procedures — Discovery
Work Product:
* Documents prepared in anticipation of trial
* Generally immune from discovery (because privileged)
When Discoverable:
1) Substantial need
2) Cannot obtain without UNDUE HARDSHIP (by other substantially equivalent method)
Absolute Immunity:
* Mental impressions
* Conclusions
* Legal opinions/theories
Depositions & Interrogatgories
Pretrial Procedures — Methods of Discovery
Depositions:
* Party or non-party
* Written or oral
* Non-party by subpoena;
* Party required, sanctioned otherwise
* Limit = 10
Interrogatories:
* Only to a PARTY
* Written/Answered in writing
* Limit = 25
You cannot depose the same person more than once w/o court’s permission
