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WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal. COURT OBSERVATIONS. The Summary Judgment Process Timing: after discovery Motion-response-reply “no genuine issue of material fact” Declarations/depositions

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Where we are what we re doing
WHERE WE ARE & WHAT WE’RE DOING

  • Pleading

  • Pre-trial

    • Discovery

    • Resolution without Trial

  • Trial & Post-trial

  • Appeal


Court observations
COURT OBSERVATIONS

  • The Summary Judgment Process

    • Timing: after discovery

    • Motion-response-reply

      • “no genuine issue of material fact”

      • Declarations/depositions

    • Oral argument

      • Only if requested


Court observations1
COURT OBSERVATIONS

  • Quality of Lawyering

    • Written Materials

    • Oral Argument


Court observations2
COURT OBSERVATIONS

  • Strategy

    • SJ as “discovery” of legal theories

    • Partial summary judgment


Court observations3
COURT OBSERVATIONS

  • Strategy – winnowing process

    • No genuine issue of material fact

      • 1987

        • Legal issue as to standard

          • Disability evaluation v. treatment

        • Factual issues

          • Information Dr’s provided

        • Are factual issues “material”?


Court observations4
COURT OBSERVATIONS

  • Strategy – winnowing process

    • No genuine issue of material fact

      • 1989

        • Visit for treatment

          • No legal issue as to standard

        • Factual issues

          • Who did the exam?

          • Causation?

        • Are factual issues material?

          • Negligence established anyway?

          • Failure to request chart?


Discovery scope limits
DISCOVERYScope & Limits

  • 26(b)(1) General

    • Not privileged

    • Relevant to

      • Claim/defense

      • Subject matter

  • 26(b)(2) Court discretion to limit

    • Individual case

    • Local rule - #requests to admit

  • 26(b)(3) & (4) Exceptions

    • Trial Preparation Materials

    • Experts


Discovery fr 26 b 4 trial prep experts
DISCOVERYFR 26(b)(4) Trial Prep Experts

  • Experts

    • Fact W’s v. opinion W’s

      • Fact - FR 26(a)(1)(A)


Discovery fr 26 b 4 trial prep experts1
DISCOVERYFR 26(b)(4) Trial Prep Experts

  • Experts

    • Testifying experts

      • “opinions may be presented at trial”

      • FR 26(a)(2) – disclose w/ report

      • FR 26(b)(3) – depose after report provided

    • Non-testifying experts

      • “retained or specially employed”

      • FR 26(b)(4)(B)

      • discovery only if exceptional circumstances

        • Impracticable to obtain info by other means


Discovery thompson p 539
DISCOVERYThompson, p. 539

  • Method

  • Information sought

  • Pl’s procedural response

  • Category of expert

  • Discovery allowed?


Discovery chiquita p 541
DISCOVERYChiquita, p. 541

  • Method

  • Information sought

  • Def’s procedural response

  • Category of expert

  • Discovery allowed?


Skills distinguishing cases
SKILLSDistinguishing Cases

  • Why different results?

  • Distinguish cases on their facts

    • Thompson

    • Chiquita


Takeaways
TAKEAWAYS

  • Black Letter Law

    • FR 26(b) (4)

      • Exception to broad scope of discovery

      • Applies work-product concept to experts

      • Protects

        • Non-testifying experts

        • Not facts

      • Allows discovery if

        • exceptional circumstances

          • Impractical to obtain facts/opinions by other means


Takeaways1
TAKEAWAYS

  • Big theme

    • Tension between

      • Open discovery

        v.

      • Adversary system

        • Each party prepare own case

      • Discourage expert evaluations

      • “Undue prejudice”


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