Week 1 - Misc. and Chapter 9 Flashcards
Lecture: If the (1) submitted by parties is agreeable on all issues, the court typically adopts the (2) containing deadlines, which includesa final date and time for the (3)–typically after discovery and settlement conference. This status conference is when parties meet and pick the (4).
- Joint Pretrial Conference Memorandum
- Proposed Scheduling Order
- status conference
- trial date
4 basic stages of litigation
- information gathering 2. pleading 3. discovery/motions 4. trial/post-trial proceedings
In place of an (1), a defendant may file a motion if he thinks there is some defect in a (2) or (3).
- answer 2. procedural rule 3. insufficient facts
The answer is the defendant’s (1) and states any (2) he may have.
- response to allegations 2. defenses
The (1) stage allows formal gathering of information and also may include (2) which include summary judgment or compelling of discovery.
- discovery and motion 2. pre-trial motions
The (1) include motions to include requests for judgment or different judgments.
- trial and post-trial proceedings
The most common type of (1) is money damages, which can be (2) or (3). If money cannot fully compensate, (4) may be sought, including injunction and (5).
- legal remedy 2. compensatory 3. punitive 4. equitable relief 5. declaratory relief
The (1) are the codification of rules governing which facts can be presented at a trial; most states have adopted this. Evidentiary rules are (2), so the trial judge will filter (3) and (4) based on (5) and (6).
- Federal Rules of Evidence 2. questions of law 3. exhibits 4. testimony 5. motions 6. objections
The three R’s of evidentiary law
- Relevant (proves or disproves and issue) 2. reliable (firsthand/trustworthy) 3. real (what it purports to be)
During discovery, information otherwise subject to evidentiary objection, such as (1) and (2), may be waived by (3). Information contained in (4) or (5) that is inadmissable may be subject to a motion to strike, so paralegals drafting these documents should be wary of this.
- attorney-client privilege 2. work product doctrine 3. disclosure 4. declarations 5. affidavits
3 questions to ask when looking at relevance of evidence
- Is it of consequence to the action? 2. Does it make a fact more or less probable? 3. Is the probative (proving) value outweighed by other considerations?
3 types of evidence subject to special evidence rules
- character traits (only if important to issue, such as libel) 2. habit evidence (if routine enough, such as handling of mail) 3. policy exclusions (automatically inadmissable for negligence/fault)
3 of the more common policy exclusions
- evidence of subsequent remedial repairs (would discourage repairs/improvements that may be used against def.) 2. payment (or offer) of medical expenses 3. one’s having liability insurance
3 basic elements of hearsay (reliable portion of R’s), which is inadmissable unless a hearsay exception applies
- a statement (assertion) 2. made out of court (by witness himself or by another person) 3. offered to prove the truth of the matter asserted in the statement (not hearsay if used to prove something unrelated to assertion)
3 types of “statements” for the purporses of hearsay rules
- oral assertions (He said this) 2. written assertions (He wrote this) 3. assertive conduct (I asked him this, and he nodded his head)
Hearsay exceptions are based, in part, on the premise that the circumstances eliminate one or more reasons for (1)
- testimonial unreliability
11 hearsay exceptions
- admission of a party opponent (statement made by adverse party in a suit) 2. Prior statements by witnesses (at previous hearing or depo, show contradictions) 3. statements against interest (when declarant unable to testify) 4. Former testimony 5. Present sense impressions (made immediately after or during event to describe it) 6. Excited utterances 7. Statement of present or past conditions for medical diagnosis (about patient’s condition) 8. Statement of present state of mind 9. Dying declarations (if declarant is now unavailable–dead or not) 10. Records 11. Other exceptions
4 standards for the “formery testimony exception to hearsay rules
- Witness is unavailable 2. Testimony was under oath 3. Offered by adversary in former proceeding, OR 4. Offered against adversary with counsel having same motive to cross-examine
Three most common records exceptions to hearsay rule
- recorded recollections (if witness has forgotten events recorded) 2. business records (considered reliable since they need to be accurate) 3. public records
4 standards of the “Catch-all/etc.” exceptions of hearsay`
- evidence is relevant 2. evidence is more valuable than the witness otherwise could be expectedto find 3. admission of the evidence serves the interests of justice 4. advance notice of the ID of the declarant is given to the adversary
3 areas of concern for “real” evidence
- witnesses (lay or expert)(competency? Impeachment?) 2. exhibits 3. judicial notice
Generally, a witness is considered competent to testify if she has ability to (1). A child may testify as long as she can (2), (3) and (4). Persons of (5) are incompetent to testify. The witness also must have (6) of the facts.
- communicate (orally or by gestures) 2. observe 3. recollect 4. communicate 5. unsound mind 6. independent knowledge
Two methods for impeaching a witness
- cross-examination 2. introduction of other evidence (extrinsic evidence)
7 types of impeachment
- bias (party’s brother) 2. interest (partner in business) 3. prior inconsistent statement 4. prior conviction of witness (of crime >1 year, or false statement)(dicier for old convictions) 5. reputation for truthfulness is bad 6. prior bad acts (good faith basis only)(false income tax return, etc.) 7. contradiction (facts are different than witness claims)
Expert testimony is proper whenever it will (1) or (2). Unlike a lay witness, an expert withness does not need (3) but can base an opinion on facts (4) or coming from a (5).
- assist the trier of fact to understand the evidence 2. determind a fact in issue 3. firsthand knowledge 4. conveyed in court 5. reliable source in the witness’s field
Exhibits–tangible items of evidence–must be (1) and (2).
- relevant 2. authenticated
5 basic types of exhibits
- real evidence (physical objects)(must be in same condition as first obtained) 2. demonstrative evidence (representation, such as a photo)(must be representation of actual thing in state it was, and must be accurate) 3. Writings (requires authentication of signatures - witness to signing or comparisons) 4. Business records 5. public records (self-authenticating, just need certified copy)
The best evidence rule requires the original be produced if there is a (1).
- genuine dispute over authenticity
3 types of facts that may be judicially noticed (ruled by a judge at a party’s request to be true)
- Facts generally known iwthin the geographical area 2. facts capable of accurate and readily available determination from an unquestionably accurate source 3. scientific basis for accepted scientific facts
4 most common types of privileges, protected from admissibility as evidence
- attorney-client privilege 2. work product privilege 3. physician-patient privilege (sometimes includes psychotherapist-patient) 4. marital privilege
3 exceptions to attorney-client privilege
- services of lawyer are sought to enable commission of a crime 2. client claims breach of duty by lawyers 3. confidential communication is disclosed to others by client
Work product privilege protects workpapers, notes, memoranda and reports prepared by attorneys containing (1), (2), and (3).
- opinions 2. mental impressions 3. legal theories
Physician-patient privilege may be set aside if the patient puts her (1) at (2).
- health/mental condition 2. issue/evidence
