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CIVIL LITIGATION

CIVIL LITIGATION. WITH ELISABETH MCKECHNIE. Civil Litigation Timeline. Precipitating Event Action Filed Statute of Limitations runs Defendant(s) Answer or Service of Process on file motion Defendant(s) Statute of Limitations begins to run. Civil Litigation Timeline. Case over.

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CIVIL LITIGATION

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  1. CIVIL LITIGATION WITH ELISABETH MCKECHNIE

  2. Civil Litigation Timeline Precipitating EventAction FiledStatute of Limitations runsDefendant(s)Answer orService of Process onfile motionDefendant(s) Statute of Limitations beginsto run Elisabeth McKechnie, 2009

  3. Civil Litigation Timeline Case over Discovery continues:Status Conf. DiscoveryTrial Post-trial i.e. Interrogatories Sent to non-binding cut offMotions or Depositions Arbitration Appeal Expert Witnesses hired/deposed Attys further research case Elisabeth McKechnie, 2009

  4. Sample Research Question • Defendant driver was intoxicated. Plaintiff passenger elected to ride with him knowing that Defendant was drunk. Defendant caused an accident which injured plaintiff. What is the likelihood of a court granting a summary judgment motion in favor of Driver based on assumption of the risk by P? Elisabeth McKechnie, 2009

  5. Types of Research Materials • Good Examples: • Witkin: Summary of California Law • Legal Encyclopedia • Rutter: Civil Procedure Before Trial • Practice Manual • California Forms of Pleading & Practice • Forms Manual Elisabeth McKechnie, 2009

  6. Where Do You Start? • Where Do You start? • Issue Spotting: • Summary judgment motion—requirements • Assumption of risk in CA • Driver Duty re Passenger; Passenger Duty • Educate Yourself …What’s Fastest & Cheapest? • Witkin for both issues (BOOK) • Rutter--Civil Procedure Before Trial (BOOK) • Bancroft/Whitney--CA Civil Practice: Torts (BOOK) • California Forms of Pleading & Practice (BOOK) • Lexis or Westlaw? NOT YET! Why not? Elisabeth McKechnie, 2009

  7. Cost Consideration$$ • WEXIS--FLAT RATE ISN’T FREE • PER SEARCH RATE IS PRICEY • Overuse Flat Rate this year, next year price goes up. • Per Search Rate is pricey if you don’t have a strategy. • BOOKS ALREADY IN THE LIBRARY—are FREE • BOOK with a good index is FASTER than a bad keyword search Elisabeth McKechnie, 2009

  8. Research Form • Legal Research Task Form • Client/Matter Number:________________________________ • Date Project Received:_______________________________ • Project Received From:_______________________________ • Project Due Date:____________________________________ • Project Format (i.e. e-mail, memo, etc.):______________________________  • Question/Issues Presented:______________________________________________ • Jurisdiction: ____________________________________________________________  • Key Search Terms: __”assumption of risk”, “summary judgment”, duty: driver, passenger • Cost Restraints:_________________________________________________________ • Amt. of Time Allowed to Spend on Project:____________________________________  • Number of other projects already pending:____________________________________ •  Any Experts in Firm Who Can Help:_________________________________________  • List of Sources I’ve used (include database names for Lexis/Westlaw):_____________________________________ Elisabeth McKechnie, 2009

  9. Rutter Group Personal Injury Hbk Elisabeth McKechnie, 2009

  10. Elisabeth McKechnie, 6/5/07

  11. Elisabeth McKechnie, 6/5/07

  12. Using Form Books • A Good Form Book has: • 1. Forms • 2. Instructions on how to prepare forms. • 3. Advice on deadlines • 4. A check-list or timeline • 5. Discussion of the law pertinent to your form. Elisabeth McKechnie,2009

  13. CA Forms of Pleading & Practice Elisabeth McKechnie, 2009

  14. Local Rules—Summary Judgment 3.20 Reserving Hearing Dates. Hearing dates for motions for summary judgment, summary adjudication, judgment on the pleadings, special motions to strike pursuant to Code of Civil Procedure section 425.16, and demurrers must be reserved in advance by telephoning the calendar clerks at (916) 874-7848 (Department 54) or (916) 874-7858 (Department 53).(Sac. County Local Rules) (Amended effective 1/1/10) Elisabeth McKechnie, 2009

  15. Rules and Deadlines---Local Rules If you are the responding party to a Summary Judgment Motion…. (C) Failure to comply with the requirements of this rule concerning filing and serving opposing and reply papers may, in the discretion of the court, be deemed cause for acting on the matter without consideration of the document filed in violation of the rule and cause for imposing sanctions. (Cal. Rules of Court, rule 2.30; Code of Civ. Proc., sections 177.5 and 575.2.)……….. (Amended effective 1/1/07)---Sacramento County Local Rule 3.03—Filing of Papers Elisabeth McKechnie, 2009

  16. Local Rules 3.02 Sanctions. Failure to comply with any Local Rule or California Rules of Court may subject the party to sanctions pursuant to California Rules of Court, rule 2.30; Code of Civil Procedure sections 177.5, 575.2. (Sacramento County Local Rules) Elisabeth McKechnie, 6/5/07

  17. Rules and Deadlines-California Rules of Court • CALIFORNIA RULES OF COURT 17|131|586|1403|1760   • Note   California Rules of Court Reorganization   • Title 1. Rules Applicable to All Courts 7|33   • Title 2. Trial Court Rules 9|38|155   • Title 3. Civil Rules 21|110|297|398   • Title 4. Criminal Rules 7|59|83   • Title 5. Family and Juvenile Rules 4|26|183|236   • Title 6. [Reserved]   • Title 7. Probate Rules 23|120   • Title 8. Appellate Rules 5|47|199|390   • Title 9. Rules on Law Practice, Attorneys, and Judges 6|25|44   • Title 10. Judicial Administration Rules 5|38|199|211   • Standards of Judicial Administration 10|56   • Ethics Standards for Neutral Arbitrators in Contractual Arbitration 17 Elisabeth McKechnie, 2009

  18. California Rules of Court • Chapter 1. Papers 20   • Rule 2.100. Form and format of papers presented for filing in the trial courts   • Rule 2.101. Use of recycled paper; certification by attorney or party   • Rule 2.102. One-sided paper   • Rule 2.103. Quality, color, and size of paper   • Rule 2.104. Printing; type size   • Rule 2.105. Type style   • Rule 2.106. Color of print   • Rule 2.107. Margins   • Rule 2.108. Spacing and numbering of lines   • Rule 2.109. Page numbering   • Rule 2.110. Footer   • Rule 2.111. Format of first page   • Rule 2.112. Separate causes of action, counts, and defenses   • Rule 2.113. Binding   • Rule 2.114. Exhibits   • Rule 2.115. Hole punching …………(And yes, there’s more!) Elisabeth McKechnie,2009

  19. Problem #2 • You are asked to examine a complaint recently filed and served on your client. You are to look for defects in the complaint and to suggest affirmative defenses which may be raised. Elisabeth McKechnie, 2009

  20. Where to Start? Spot Issues • Spot issues: • What are the Causes of Action? • Educate yourself about the elements of each Cause of Action. • Research any cases/laws cited. • Are all the required elements pleaded? • Are there any other defects in the Complaint? • Statute of Limitations? • Problems with Service of Complaint? • Any other obvious flaws? Elisabeth McKechnie, 2009

  21. Resources That Can Help • California Codes—Index— “Limitations” or “Statute of Limitations” • California Affirmative Defenses (West) • Causes of Action, 2d (West)[not CA specific] • CA Forms of Pleading and Practice (Bender)— “Answer” chapter • CEB Action Guide—Responding to a Complaint or Cross-Complaint, Evaluating Your Options Elisabeth McKechnie,2009

  22. Questions? Elisabeth McKechnie, 6/5/07

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