Advanced civil litigation
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Advanced Civil Litigation. Joanne Hames Winter 2014. Introduction. California Supplement Douglass Financial Services Case Class Website: www.deanza.edu/faculty/hames. Advanced Civil Litigation. Civil Lit A: Jurisdiction, pleadings, motion

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Advanced civil litigation

Advanced Civil Litigation

Joanne Hames

Winter 2014

(c) Joanne Hames


Introduction

Introduction

  • California Supplement

  • Douglass Financial Services Case

  • Class Website:

    • www.deanza.edu/faculty/hames

(c) Joanne Hames


Advanced civil litigation1

Advanced Civil Litigation

  • Civil Lit A: Jurisdiction, pleadings, motion

  • Civil Lit B: Proving the case: Investigation, Discovery and Trial

(c) Joanne Hames


Pre discovery procedures

Pre-discovery Procedures

  • Preliminary investigation by each side

  • Pleadings filed and served

    • Summons & Complaint

    • Answer (or Demurrer or Motions)

    • Cross Complaints and Answers

  • Case management or other conferences

  • Possible ADR

(c) Joanne Hames


Preliminary investigation

Preliminary Investigation

  • Client Interview

  • Locating and interviewing fact witnesses

  • Locating and interviewing expert witnesses for your client

  • Investigating all expert witnesses

(c) Joanne Hames


The client interview

The Client Interview

  • Be Prepared

    • Find out as much about case as possible before

    • develop interview form or checklist

    • Bender Forms of Pleading and Practice

    • Determine Location

  • Gather forms for client signature

    • Retainer Agreement

    • Releases

(c) Joanne Hames


Client interview cont

Client Interview, cont

  • Run conflict check prior to interview

  • Paralegal Role

    • Note taking

    • Written memorandum

(c) Joanne Hames


Locating fact witnesses defs

Client

Internet

Social Networks

Commercial Internet Sites

accident reports

court records

DMV

Friends/neighbors

telephone book

county assessor/recorder

Ambulance co.

Advertisements

If a corp: Secretary of

State

Locating Fact Witnesses/Defs

(c) Joanne Hames


Court records

Court Records

  • PACER

    • Federal court documents

  • California Courts

    • Individual Court Web sites

    • Lexis/Westlaw

(c) Joanne Hames


Interview techniques

Interview Techniques

  • Always Identify yourself and who you represent

  • Prepare ahead of time: have form or checklist

  • Avoid leading questions

  • Take copious notes or with permission, record

(c) Joanne Hames


After the interview

After the Interview

  • Prepare statement for witness signature

  • Prepare memo summarizing findings and observations.

  • Statements under penalty of perjury

    • Not admissible at trial except to impeach

(c) Joanne Hames


Rules of evidence

Rules of Evidence

  • Importance to investigation, discovery and litigation

    • Different rules apply

  • Litigation: Must follow all rules of admissibility and be relevant

  • Discovery: Must be relevant and not privileged

  • Investigation: Anything goes

(c) Joanne Hames


Evidence

Evidence

  • How you prove your point

    • witnesses

    • records

    • documents

    • exhibits

    • objects

    • photos

(c) Joanne Hames


Evidence1

Evidence

  • Direct: evidence the witness personally observed; if believed it proves your point

  • circumstantial: evidence from which an inference can be drawn

(c) Joanne Hames


Advanced civil litigation

FORMS OF EVIDENCE

(c) Joanne Hames


Rules of evidence1

Rules of Evidence

  • Federal: In Federal Rules of Evidence

  • State: California Evidence Code

  • Very similar

(c) Joanne Hames


Relevance

Relevance

  • All evidence must be relevant

    • tends to prove the point you are using it for

  • Not all relevant evidence admissible

    • privileges

    • probative value outweighed by prejudice of time

(c) Joanne Hames


Documentary evidence

Documentary Evidence

  • Authentication/foundation

    • document is what it purports to be (photos, writings, etc.)

  • Self-Authentication:

    • certified copies of public documents/judicial notice

  • Best Evidence rule

  • (c) Joanne Hames


    Advanced civil litigation

    ESI

    • Electronically Stored Information

    • Information created or stored in electronic format, including computer generated documents, email, web pages and the like.

    • Law is in transition

    (c) Joanne Hames


    Hearsay

    Hearsay

    • Generally discoverable

    • Inadmissible at trial unless it comes under one of the many exceptions.

    • Out of court statement used to prove the truth of the matter asserted.

    • Exceptions:

      • State of mind

      • excited utterance

      • business records

    -declaration against

    interest

    impeachment

    (c) Joanne Hames


    Privileges

    Privileges

    • Attorney/client

    • doctor/patient

    • clergyman/pentitent

    • trade secrets

    • government secrets

    • Constitutional privileges

    • Work Product

    (c) Joanne Hames


    Expert witnesses

    Expert Witnesses

    • Purpose: Can give an opinion in their area of expertise

    • Paralegal Role:

      • Locating Experts

      • Interviewing

      • Researching credentials

      • Researching prior litigation

    (c) Joanne Hames


    Preserving evidence

    Preserving Evidence

    • Integrity of evidence must be preserved

    • Evidence log

    • Preserving potential ESI

      • Litigation holds

    (c) Joanne Hames


    Scope of discovery relationship to rules of evidence

    SCOPE OF DISCOVERY-Relationship to Rules of Evidence

    • ALL RELEVANT INFORMATION

      Admissible evidence or evidence that might lead to admissible evidence

    • NOT OTHERWISE PRIVILEGED

    (c) Joanne Hames


    Paralegal role

    Paralegal Role

    • Preparing for discovery/disclosure

    • Drafting discovery requests

    • Responding to discovery requests

      • Client interviews

      • Document reviews (relevancy & privilege)

    • Reviewing/summarizing discovery responses

    • Drafting and responding to motions

    • Integrating discovery into case management software

    (c) Joanne Hames


    State v federal

    State v. Federal

    • California—

      • CCP §§ 2016.010 et seq

      • California Rules of Court

      • Case Law

    • Federal

      • Federal Rules of Civil Procedure

      • Local Rules of Court

      • Case Law

    (c) Joanne Hames


    Methods of discovery

    Methods of Discovery

    • Disclosure (Federal Only)

    • Interrogatories

    • Depositions

    • Requests to Produce

    • Medical Exams

    • Disclosure of Expert Witness Information

    (c) Joanne Hames


    Disclosure v discovery

    Disclosure v. Discovery

    • Disclosure

      • Federal Court Only (Rule 26)

      • Automatic exchanges of information

    • Discovery

      • Both state and federal courts

      • Not automatic—requires a request

    (c) Joanne Hames


    Discovery in general

    PROPOUNDING PARTY--REQUESTING PARTY

    RESPONDING PARTY

    DOCUMENTS NOT FILED WITH COURT

    PROPOUNDING PARTY KEEPS ORIGINALS

    DISCOVERY IN GENERAL

    (c) Joanne Hames


    Forms of discoverable information

    Forms of Discoverable Information

    • Testimony of Parties

      • In writing

      • Personal questioning (depositions)

    • Testimony of Witnesses

      • Personal questioning

    • Documents

      • Evidence Code Definition

    • ESI

      • Electronically stored information

    (c) Joanne Hames


    E discovery

    E-Discovery

    • New aspect of traditional discovery

      • Electronic documents

      • Hardware used to create electronic docs

    • New Federal Rules of Civil Procedure (2006)

    • New State Codes—California Electronic Discovery Act (2009)

      • http://www.nixonpeabody.com/publications_detail3.asp?ID=2815 (See California e-discovery….)

    (c) Joanne Hames


    Advanced civil litigation

    Scope of Cyber Evidence

    Digital vs. Non-Digital

    Digital

    Non-Digital

    • Over 93 percent of all information generated in 1999 was in digital format.

      (In Re Bristol-Myers Squibb Securities Litigation 205 F.R.D. 437, 440, fn2 (2002) [citing UC Berkeley Study])

    (c) Joanne Hames


    Advanced civil litigation

    • What is potential digital evidence?

    • User-Created Files

    • Address Books

    • Email files

    • Audio/Video files

    • Image/graphics files

    • Calendars

    • Internet bookmarks/favorites

    • Database files

    • Spreadsheet files

    • Documents and text files

    (c) Joanne Hames


    Advanced civil litigation

    What is potential digital evidence?User-Protected Files

    • Compressed Files

    • Misnamed files

    • Encrypted Files

    • Password-Protected Files

    • Hidden Files

    • Steganography

    (c) Joanne Hames


    Advanced civil litigation

    What is potential digital evidence?Computer Created Files

    • Backup files

    • Log files

    • Configuration files

    • Printer spool files

    • Cookies

    • Swap files

    • Hidden files

    • System files

    • History files

    • Temporary files

    (c) Joanne Hames


    Advanced civil litigation

    Where do I look for it?

    (c) Joanne Hames


    Advanced civil litigation

    Where do I look for it?

    (c) Joanne Hames


    Advanced civil litigation

    Where do I look for it?Hardware

    • Stand alone computers vs. Local Area Networks

      • Wired vs. Wireless

    • Printers

    • PDAs; i.e.. Palm, Handspring, CIE

    • Digital Cameras

    • Scanners

    (c) Joanne Hames


    Advanced civil litigation

    Where do I look for it?Storage

    • Hard Drives

      • SCSI and EIDE

      • USB and FireWire

      • Floppy Disks

    • LS120s

    • Iomega media, i.e.. Zip, Jaz, Peerless

    • Memory Sticks

    (c) Joanne Hames


    Advanced civil litigation

    Where do I look for it?Storage (cont’d)

    • CDs

    • DVDs

    • Backup Tape

    (c) Joanne Hames


    Advanced civil litigation

    Data StorageHard Drives

    Data is stored on the surface of a platter in sectors and tracks. Tracks are concentric circles, and sectors are pie-shaped wedges on a track, like this:

    (c) Joanne Hames


    Advanced civil litigation

    Data StorageFloppy Disks

    The computer program passes an instruction to the computer hardware to write a data file on a floppy disk, which is very similar to a single platter in a hard disk drive except that it is spinning much slower, with far less capacity and slower access time.

    (c) Joanne Hames


    E discovery issues

    E-Discovery Issues

    • Does it exist

    • Is it discoverable

    • Who pays for the discovery

    • Is it admissible at trial

    (c) Joanne Hames


    Is esi discoverable

    Is ESI discoverable?

    • Rule 26 expressly includes ESI as being subject to disclosure and discovery

    • Relevant—or leads to admissible evidence

    (c) Joanne Hames


    Advanced civil litigation

    Cost

    • Often a contentious issue

    • Court ultimately can decide

    • Zubalake cases

    (c) Joanne Hames


    Discoverable information admissibility at trial

    Discoverable Information: Admissibility at trial

    • Discoverable does not equal admissible

    • Requires foundation

      • Authentication

      • Best evidence rule

      • reliable

    (c) Joanne Hames


    Mutual disclosure rule 26

    MUTUAL DISCLOSURERULE 26

    • INITIAL DISCLOSURES

    • DISCLOSURE OF EXPERTS

    • PRETRIAL DISCLOSURES

    (c) Joanne Hames


    Pretrial disclosures

    PRETRIAL DISCLOSURES

    • NAME, ADDRESS, PHONE OF EACH WITNESS AND WHETHER THEY WILL BE CALLED

    • WITNESSES THROUGH DEPOS AND COPY OF TRANSCRIPT

    • IDENTIFICATION OF EACH DOCUMENT OR OTHER EXHIBIT TO BE OFFERED

    (c) Joanne Hames


    Initial disclosures

    INITIAL DISCLOSURES

    • NAME, ADDRESS, PHONE OF ANYONE LIKELY TO HAVE RELEVANT AND DISCOVERABLE INFO.

    • COPY OR DESCRIPTION OF ALL DOCUMENTS OR OTHER TANGIBLE THINGS IN PARTY’S CONTROL

    (c) Joanne Hames


    Initial disclosures cont

    INITIAL DISCLOSURES (CONT.)

    • COMPUTATION OF DAMAGES CLAIMED

    • COPIES OF INSURANCE AGREEMENTS

    • See File: Initial Disclosure…..

    (c) Joanne Hames


    Expert disclosure

    EXPERT DISCLOSURE

    • STATEMENTS OF OPINIONS

    • BASIS FOR OPINION

    • DATA RELIED UPON FOR OPINION

    • EXHIBITS TO BE USED AS SUMMARY

    • QUALIFICATIONS: PUBLICATIONS WITHIN LAST 10 YEARS

    • COMPENSATION

    • OTHER CASES WITHIN FOUR YEARS

    (c) Joanne Hames


    Rule 26 and e discovery

    Rule 26 and E-discovery

    • Now uses term: "electronically stored information” (ESI)

    • Provision deals with excuse because of undue burden in accessing information

    • Provision regarding maintaining confidentiality

    (c) Joanne Hames


    E discovery1

    E-Discovery

    (c) Joanne Hames


    Form of disclosures

    FORM OF DISCLOSURES

    • WRITING

    • SIGNED BY ONE ATTORNEY OF RECORD

    • SERVED

    • FILED WITH COURT

    • SIGNATURE CONSTITUTES VERIFICATION

    (c) Joanne Hames


    Discovery methods

    DISCOVERY METHODS

    • Depositions

    • Interrogatories

    • Request for Production or Inspection

    • Request for Physical or Mental Exam

    • Request for Admissions

    • Disclosure of Experts

    (c) Joanne Hames


    Privileges1

    ATTORNEY/CLIENT

    MD./PATIENT

    CLERGYMAN/PEN-ITENT

    SPOUSAL

    SELF-INCRIMINATION

    GOV’T SECRETS

    TRADE SECRETS

    WORK PRODUCT

    PRIVILEGES

    (c) Joanne Hames


    Sanctions

    SANCTIONS

    • MONETARY

    • EVIDENTIARY

    • TERMINATING

    • CONTEMPT

    (c) Joanne Hames


    Timing state

    TIMING (State)

    • DISCOVERY MUST BE COMPLETED 30 DAYS BEFORE INITIAL TRIAL DATE

    • MOTIONS TO BE HEARD 15 DAYS BEFORE TRIAL DATE

    • DISCLOSURE OF EXPERTS 15 DAYS BEFORE TRIAL DATE

    (c) Joanne Hames


    Timing

    TIMING

    • ARBITRATION CLOSES DISCOVERY

    • INFORMAL STIPULATIONS CAN CHANGE

    (c) Joanne Hames


    Discovery requests and responses

    DISCOVERY REQUESTS AND RESPONSES

    • PREPARED ON PLEADING PAPER

    • USE CAPTION

    • SERVE COPIES ON ALL PARTIES

    (c) Joanne Hames


    Discovery documents cont

    Discovery Documents, cont.

    • Not filed with the court (unless subsequent motion filed.)

    • Propounding party retains originals

    (c) Joanne Hames


    Deposition

    DEPOSITION

    • EXAMINATION OF WITNESS UNDER OATH OUTSIDE COURT IN PRESENCE OF COURT REPORTER

    (c) Joanne Hames


    Purpose of deposition

    PURPOSE OF DEPOSITION

    • DISCOVERY

    • EVIDENCE AT TRIAL

    • IMPEACHMENT AT TRIAL

    • PERPETUATE TESTIMONY

    (c) Joanne Hames


    Setting up a party deposition

    SETTING UP A PARTY DEPOSITION

    • SELECT A LOCATION

    • PREPARE AND SERVE NOTICE OF TAKING DEPOSITION

    • KEEP ORIGINALS IN OFFICE FILE

    • ARRANGE FOR COURT REPORTER

    • CALENDAR DATE

    (c) Joanne Hames


    Notice of taking depo

    Notice of Taking Depo

    • Notice is served on all parties through their attorneys

    • 10 days notice must be given, unless time waived

    • Notice can be by mail, fax, express mail--CCP1013 applies

      • Mail—add 5 calendar days

      • Other Methods—add 2 court days

      • Fax—requires stipulation

    (c) Joanne Hames


    Notice of depo special concerns

    Notice of Depo—Special Concerns

    • Videotaping

    • Instant access to transcript

    • Depos of corporations and other entities

    (c) Joanne Hames


    Proof of service

    Proof of Service

    • Signed POS (now a JC form) kept with original.

    • Unsigned POS attached to document that is served

    (c) Joanne Hames


    Setting up a non party deposition

    SETTING UP A NON-PARTY DEPOSITION

    • SELECT LOCATION

    • PREPARE AND SERVE SUBPENA

    • PREPARE AND SERVE NOTICE OF TAKING DEPOSITION

    • KEEP ORIGINALS IN OFFICE FILE

    • ARRANGE FOR COURT REPORTER

    • CALENDAR DATE

    (c) Joanne Hames


    Deposition location

    DEPOSITION LOCATION

    • WITHIN 75 MILES OF DEPONENTS RESIDENCE

    • WITHIN 150 MILES OF DEPONENTS RESIDENCE IF IN FORUM COUNTY

    • WHEREVER COURT ALLOWS

    (c) Joanne Hames


    Special depositions

    SPECIAL DEPOSITIONS

    • DEPOSITIONS ON WRITTEN INTERROGATORIES

    • INTERJURISDICTIONAL DEPOSITIONS

    • DEPOSITIONS TO PERPETUATE TESTIMONY

    (c) Joanne Hames


    Advanced civil litigation

    (c) Joanne Hames


    Guidelines for depo summary

    GET CLEAR INSTRUCTIONS

    PARAPHRASE OR QUOTE?

    KNOW THE CASE

    DON’T EXPECT CONSISTENCY

    THINK IN TERMS OF CATEGORIES

    INCLUDE PAGE AND LINE

    CHECK OFFICE MANUAL

    INDEX EXTENSIVE SUMMARIES

    UPDATE SUMMARY

    GUIDELINES FOR DEPO SUMMARY

    (c) Joanne Hames


    Deposition categories examples

    BACKGROUND

    EDUCATION

    PAST EMPLOYMENT

    PRESENT EMPLOYMENT

    MEDICAL HISTORY

    INSURANCE

    PRIOR CLAIMS

    FACTS OF CLAIM

    INJURIES

    OTHER DAMAGES

    EXPENSES

    PRIOR STATEMENTS

    DEPOSITION CATEGORIES(EXAMPLES)

    (c) Joanne Hames


    Interrogatories

    INTERROGATORIES

    • Written questions served by one party to another in a civil action

    • Must be answered in writing under oath

    (c) Joanne Hames


    Purpose of interrogatories

    PURPOSE OF INTERROGATORIES

    • Form basis of pretrial motions

    • Help settlement

    • Narrow disputed issues

    • Impeachment at trial

    • Discover general information

    (c) Joanne Hames


    Interrogatories content

    Interrogatories -- Content

    • General information

    • Party’s factual and legal contentions

    • Factual basis for party’s contentions

    • Description of documents

    • Identity of witnesses

    (c) Joanne Hames


    Interrogatories in superior court

    Interrogatories in Superior Court

    • Judicial Council Form Interrogatories

    • 35 Specially Prepared Questions (or more if accompanied by proper declaration.)

    (c) Joanne Hames


    Specially prepared interrogatories

    Specially Prepared Interrogatories

    • Limited to 35 unless good cause shown

    • No subparts or conjunctive or disjunctive questions

    • Multiple sets are O.K., but total questions limited to 35

    (c) Joanne Hames


    Contention interrogatories

    Contention Interrogatories

    • 1. Do you contend that Dr. Crowley is an agent of defendant St. Catherine’s?

    • 2. If your answer to the above question is yes, please state all facts upon which you base your contention.

    • Or

    • 1. If you content that Dr. Crowley is an agent of defendant St. Catherine’s, please state all facts upon which you base your contention

    (c) Joanne Hames


    Before drafting questions

    Before Drafting Questions

    • Know the case and review file

    • List elements of causes of action in pleadings

    • Check form books or other cases in office

    (c) Joanne Hames


    Drafting questions

    Drafting Questions

    • Avoid compound questions

    • Use definitions

    • Keep language simple and direct; avoid “legalese”

    • Watch verb tense

    • Avoid “yes” or “no” questions

    (c) Joanne Hames


    Responding to interrogatories

    Responding to Interrogatories

    • Answer or object within 30 days

    • Answer should be complete; good faith effort to obtain information except where information is equally available to other side.

    • Answered under oath (verified).

    (c) Joanne Hames


    Drafting answers

    Drafting Answers

    • Format: Caption and Introduction should be similar to Specially Prepared Interrogatories

      • Designate Propounding Party, Responding Party and Set No.

    • Preliminary Paragraphs sometimes used:

      • Investigation and discovery are continuing and answers are based on information known to date

    (c) Joanne Hames


    Drafting answers cont

    Drafting Answers, cont.

    • Preliminary Paragraphs, cont.

      • All privileges are asserted and not waived

    • Respond to each question separately by number

      • Answer, object or both

      • Objecting—Must state basis

      • If answer unknown—state this, but remember there is a duty to make reasonable inquiry

    (c) Joanne Hames


    Review verify and serve

    Review, Verify and Serve

    • Review answers

    • Client verifies

    • Attorney signs (CA: must sign if any objections, but usually does anyway)

    • Serve original answers w. verification and POS on propounding party; other parties receive copies

    (c) Joanne Hames


    Duty to update

    Duty to Update

    • Federal rules require

    • California does not require

      • Follow up interrogatories usually sent before trial

    (c) Joanne Hames


    Questions re documents

    Questions re: Documents

    • Rather than summarize or compile documents, answering party can allow inspection

    (c) Joanne Hames


    Objections

    OBJECTIONS

    • Must be timely

    • Can be to all or part of question

    • Must state basis of objection

    • Must be signed by attorney

    (c) Joanne Hames


    Motion for protective order

    Motion for Protective Order

    • Too many questions (more than 35 with declaration)

    • oppressive, annoying questions

    (c) Joanne Hames


    Motions

    MOTIONS

    • Motion for Protective Order

    • Motion to Compel Answers

    • Motion to Compel Further Answers

    (c) Joanne Hames


    Motion to compel further answers

    Motion to Compel Further Answers

    • If inadequate response or improper objection

    • Notice given within 45 days of service of response

    • Meet and Confer declaration

    (c) Joanne Hames


    Objections1

    Irrelevant

    More than 35

    Annoyance, Embarrassment, Oppressive or Unduly Burdensome

    Information equally available

    Work Product

    Other Privilege

    Uncertain, Ambiguous and Unintelligible

    Continuing Interrogatories (State Court only)

    OBJECTIONS

    (c) Joanne Hames


    Motions to compel further answers

    MOTIONS TO COMPEL FURTHER ANSWERS

    • Notice of Motion

    • Declaration in Support of Motion

    • Memorandum of Points and Authorities

    • Meet and Confer Declaration

    • Separate Statement

      • Set forth each disputed question and answer

      • Give legal and factual reason for request

    (c) Joanne Hames


    Physical and mental examinations ccp 2032

    PHYSICAL AND MENTAL EXAMINATIONS (CCP 2032)

    • PARTIES SUBJECT TO EXAM:

      • PARTY TO ACTION

      • AGENT OF ANY PARTY

      • NATURAL PERSON IN CUSTODY OR UNDER LEGAL CONTROL OF PARTY

    (c) Joanne Hames


    Parties qualified to examine

    PARTIES QUALIFIED TO EXAMINE

    • M.D.

    • APPROPRIATE LICENSED HEALTH CARE PRACTITIONER

    • LICENSED CLINICAL PSYCHOLOGIST WITH PHD AND 5 YEARS EXPERIENCE

    (c) Joanne Hames


    Plaintiff in p i case

    PLAINTIFF IN P.I. CASE

    • BY DEMAND WITHOUT LEAVE OF COURT

    • EXAM CANNOT BE PAINFUL, PROTRACTED OR INTRUSIVE

    • CONDUCTED WITHIN 75 MILES OF P’S RESIDENCE

    (c) Joanne Hames


    Demand for physical exam

    DEMAND FOR PHYSICAL EXAM

    • SPECIFY TIME, PLACE, MANNER, CONDITIONS, SCOPE AND NATURE

    • IDENTITY AND SPECIALTY OF M.D.

    • SCHEDULED FOR AT LEAST 30 DAYS AFTER SERVICE OF DEMAND

    • SERVED ON PLAINTIFF AND ALL OTHER PARTIES

    • NOT FILED WITH COURT

    (c) Joanne Hames


    Plaintiff s response

    PLAINTIFF’S RESPONSE

    • WRITTEN RESPONSE WITHIN 20 DAYS

    • AGREE

    • AGREE WITH MODIFICATIONS

    • REFUSE

    • NOT FILED WITH COURT

    (c) Joanne Hames


    Failure to respond

    FAILURE TO RESPOND

    • OBJECTIONS WAIVED

    • CAN BE RELIEVED OF WAIVER BY MOTION

      • RESPONSE FILED

      • FAILURE DUE TO MISTAKE, INADVERTENCE OR EXCUSABLE NEGLECT

    (c) Joanne Hames


    Mental exams and non plaintiff p i physical

    MENTAL EXAMS AND NON -PLAINTIFF P.I. PHYSICAL

    • ONLY BY MOTION or

    • STIPULATION OF PARTIES

    • NEED A SHOWING OF GOOD CAUSE

    (c) Joanne Hames


    Sanctions for failure

    SANCTIONS FOR FAILURE

    • MONETARY SANCTION

    • ISSUE SANCTION

    • EVIDENCE SANCTION

    • TERMINATING SANCTION

    • WHATEVER COURT THINKS IS JUST

    (c) Joanne Hames


    A physical exam

    A PHYSICAL EXAM

    • CAN BE MONITORED BY ATTORNEY OR ATTORNEY’S REPRESENTATIVE

    • ATTORNEY CANNOT INTERFERE WITH EXAM BUT CAN SUSPEND IT IF VIOLATIONS OCCUR

      • MUST GET PROTECTIVE ORDER

    (c) Joanne Hames


    Mental exams

    MENTAL EXAMS

    • NO OBSERVATIONS ALLOWED

    • RECORDING IS ALLOWED

    (c) Joanne Hames


    Report of examination

    REPORT OF EXAMINATION

    • COPY CAN BE DEMANDED BY EXAMINEE

    • COPIES OF EXAMINEE’S REPORTS OF SAME CONDITIONS MUST BE EXCHANGED

    • REPORT DELIVERED WITHIN 30 DAYS OF REQUEST OR 15 DAYS PRIOR TO TRIAL

    (c) Joanne Hames


    Requesting documents and other tangible evidence

    Requesting Documents and Other Tangible Evidence

    • CCP 2031: Allows inspection of things in control of a party by making a demand/request

    • CCP 2020.410-2020.440 Procedure for requesting business records from non party

    (c) Joanne Hames


    Document production

    Document Production

    • Docs in custody of other party

    • Docs in custody of third party

    • Public docs

    (c) Joanne Hames


    Ccp 2031 et seq

    CCP 2031 et seq.

    • Demand to produce/inspect/photograph/ test or sample :

      • Documents

      • Photos

      • Any tangible thing

    • In custody, control of possession of a party

    (c) Joanne Hames


    Document production1

    DOCUMENT PRODUCTION

    • DEMAND TO PRODUCE DOCUMENTS-CCP 2031

    • DEPOSITION SUBPENA FOR BUSINESS RECORDS--CCP 2020

    (c) Joanne Hames


    Ccp 2031

    CCP 2031

    • RELATES TO ITEMS IN POSSESSION, CUSTODY OR CONTROL OF PARTY

    • INSPECTION OF DOCUMENTS

    • INSPECTION OF TANGIBLE THINGS

    • INSPECTION OF LAND

    (c) Joanne Hames


    Inspection under 2031

    INSPECTION UNDER 2031

    • INSPECT

    • PHOTOGRAPH

    • TEST

    • SAMPLE

    • COPY

    • MEASURE

    • SURVEY

    • BY PARTY OR REPRESENTATIVE

    (c) Joanne Hames


    Demand for production

    DEMAND FOR PRODUCTION

    • FIRST PARAGRAPH: DEMANDING PARTY, SET NUMBER AND RESPONSIDNG PARTY

    • EACH DEMAND IN A SET TO BE SEPARTELY NUMBERED

    (c) Joanne Hames


    Demand for production c0nt

    DEMAND FOR PRODUCTION (C0NT)

    • DOCUMENTS OR ITEMS TO BE SPECIFICALLY DESCRIBED BY ITEM OR CATEGORY

    • SPECIFY REASONABLE TIME FOR INSPECTION AT LEAST 30 DAYS IN FUTURE

    (c) Joanne Hames


    Demand for production cont

    DEMAND FOR PRODUCTION (CONT)

    • SPECIFY PLACE FOR INSPECTION

    • SPECIFY ANY RELATED ACTIVITY (I.E. TEST)

    • SERVE ON ALL PARTIES

    (c) Joanne Hames


    Response to demand

    RESPONSE TO DEMAND

    • MOTION FOR PROTECTIVE ORDER

    • WRITTEN RESPONS

      • AGREE TO COMPLY

      • OBJECT

      • STATEMENT OF INABILITY TO COMPLY

      • RESPOND TO EACH ITEM

      • SIGNED BY PARTY UNDER OATH

      • SERVED WITHIN 20 DAYS OF SERVICE

    (c) Joanne Hames


    Failure to file written response

    FAILURE TO FILE WRITTEN RESPONSE

    • WAIVER OF OBJECTIONS

    • RELIEVED BY MOTION

    • DEMANDING PARTY MAKES MOTION TO COMPEL (AFTER MEET AND CONFER)

    (c) Joanne Hames


    Motion to compel further response

    MOTION TO COMPEL FURTHER RESPONSE

    • CONTESTS OBJECTIONS OR STATEMENT OF INABILITY TO PRODUCE

    • MADE WITHIN 45 DAYS OF SERVICE OF WRITTEN RESPONSE

    (c) Joanne Hames


    Motion for compliance

    MOTION FOR COMPLIANCE

    • MADE AS A RESULT OF FAILURE TO ACTUALLY PRODUCE

    (c) Joanne Hames


    Deposition of business records ccp 2020 d

    DEPOSITION OF BUSINESS RECORDS-- CCP 2020 (d)

    • RECORDS NOT IN POSSESSION OF PARTY

    • DEPOSITION SUBPENA

    • COMPLIANCE NO EARLIER THAN 20 DAYS AFTER ISSUANCE OR 15 DAYS AFTER SERVICE WHICHEVER IS LATER

    • NO DECLARATION OF GOOD CAUSE REQUIRED

    (c) Joanne Hames


    Deposition officer

    DEPOSITION OFFICER

    • PROFESSIONAL, REGISTERED PHOTOCOPIER

    • NO FINANCIAL INTEREST IN MATTER

    (c) Joanne Hames


    Delivery of records

    DELIVERY OF RECORDS

    • MADE EITHER AT PLACE OF DEPO OFFICER OR

    • INSPECTION TAKES PLACE AT OFFICE OF BUSINESS WHOSE RECORDS ARE SOUGHT

    (c) Joanne Hames


    Delivery of records cont

    DELIVERY OF RECORDS, cont

    • COMPLY WITH REQUIREMENTS OF EVIDENCE CODE 1560 THROUGH 1563

    • COMPLY WITH REQUIREMENTS OF NOTICE TO CONSUMER

    (c) Joanne Hames


    Evidence code 1560 63

    EVIDENCE CODE 1560-63

    • CUSTODIAN CAN DELIVER COPY TO DEPO OFFICER WITH PROPER AFFIDAVIT

    • DEMANDING PARTY MUST PAY FOR COPIES (COST PER PAGE AND PER HOUR FOR PERSON COPYING)

    (c) Joanne Hames


    Ccp 1985 3 notice to consumer

    CCP 1985.3--NOTICE TO CONSUMER

    • REQUIRED PRIOR TO DATE FOR PRODUCTION

    • SERVED AT LEAST 10 DAYS PRIOR TO PRODUCTION AND 5 DAYS PRIOR TO SERVICE ON CUSTODIAN

    (c) Joanne Hames


    Practical aspects of document production producing party

    Practical Aspects of Document Production: Producing Party

    • Organize documents

    • Read and identify documents

    • Code documents

    • Create privilege log

    (c) Joanne Hames


    Request for admissions ccp 2033

    REQUEST FOR ADMISSIONSCCP 2033

    • REQUEST TO ADMIT GENUINESS OF DOCUMENT OR

    • TRUTHFULNESS OF FACT, OPINION RELATING TO FACT OR APPLICATION OF LAW TO FACT

    • MAY RELATE TO ANY MATTER IN CONTROVERSY BETWEEN PARTIES

    (c) Joanne Hames


    Admissions

    ADMISSIONS

    • 35 QUESTION LIMIT EXCEPT FOR GENUINESS OF DOCUMENTS

    • CAN ASK MORE WITH DECLARATION OF GOOD CAUSE

    • OBJECT TO MORE THAN 35 LIKE YOU DO WITH INTERROGATORIES

    (c) Joanne Hames


    Format of request for admissions

    FORMAT OF REQUEST FOR ADMISSIONS

    • SIMILAR TO INTERROGATORIES

    • JUDICIAL COUNCIL FORMS OPTIONAL

    • NO COMPOUND QUESTIONS

    • DEFINITIONS O.K.

    • INSTRUCTIONS O.K. IS FOUND IN J.C. FORMS

    • OFTEN ACCOMPANIED WITH SET OF INTERROGATORIES

    (c) Joanne Hames


    Response to request for admissions

    RESPONSE TO REQUEST FOR ADMISSIONS

    • 30 DAYS TO RESPOND

    • MOTION FOR PROTECTIVE ORDER

    • ADMISSION/DENIAL/INABILITY TO RESPOND

    • OBJECTION TO REQUEST

    (c) Joanne Hames


    Failure to respond1

    FAILURE TO RESPOND

    • RESPONDING PARTY WAIVES OBJECTIONS SUBJECT TO COURT ORDER GRANTING RELIEF

    • REQUESTING PARTY MOVES FOR ORDER HAVING ADMISSIONS DEEMED ADMITTED AND SANCTIONS

    (c) Joanne Hames


    Motion to compel further response1

    MOTION TO COMPEL FURTHER RESPONSE

    • CHALLENGES OBJECTION

    • CHALLENGES INCOMPLETE ANSWER

    • NOTICE GIVEN WITHIN 45 DAYS OF SERVICE OF RESPONSE

    (c) Joanne Hames


    Motion to withdraw or amend response

    MOTION TO WITHDRAW OR AMEND RESPONSE

    • IS ADMISSION A RESULT OF MISTAKE, ETC.

    • COURT CAN GRNT ADDITION DISCOERY AND COSTS

    (c) Joanne Hames


    Effect of admission

    EFFECT OF ADMISSION

    • MATTER DEEMED CONCLUSIVELY PROVED AT TRIAL AGAINST PARTY MAKING ADMISSION

    (c) Joanne Hames


    Effect of denial

    EFFECT OF DENIAL

    • IF MATTER PROVED AT TRIAL, COST OF PROVING MATTER CAN BE ASSESSED AGAINST PARTY DENYING IT

    (c) Joanne Hames


    Expert disclosure ccp 2034

    EXPERT DISCLOSURE(CCP 2034)

    • DEMAND FOR SIMULTANEOUS DXCHANGE

    • MADE NO LATER THAN 70 DAYS PRIOR TO TRIAL OR 10TH DAY AFTER INITIAL TRIAL DATE SET

    • DISCLOSURE TO TAKE PLACE 50 DAYS PRIOR TO TRIAL OR 20 DAYS AFTER SERVICE, WHICHEVER IS CLOSER TO TRIAL DATE

    (c) Joanne Hames


    Matters to be disclosed

    MATTERS TO BE DISCLOSED

    • IDENTITY OF EXPERTS WHO WILL TESTIFY

    • INFORMATION ABOUT EXPERT

    • COPIES OF EXPERT REPORTS

    (c) Joanne Hames


    Response to demand for disclosure

    RESPONSE TO DEMAND FOR DISCLOSURE

    • NAME AND ADDRESS OF WITHESS

    • OR STATEMENT THAT NO WITNESS TO BE USED

    • EXPERT WITNESS DECLARATION SIGNED BY ATTORNEY

    (c) Joanne Hames


    Expert witness declaration

    EXPERT WITNESS DECLARATION

    • EXPERT QUALIFICATIONS

    • SUBSTANCE OF PROPOSED TESTIMONY

    • REPRESENTATION THAT EXPERT HAS AGREED TO TESTIFY

    • EXPERT’S HOURLY AND DAILY FEE FOR DEPOSITION AND CONSULTATION WITH RETAINING ATTORNEY

    (c) Joanne Hames


    Supplementing and augmenting

    SUPPLEMENTING AND AUGMENTING

    • WITHIN 20 DAYS OF EXCHANGE A PARTY CAN ADD A NEW EXPERT AND MUST DISCLOSE

    • AFTER 20 DAYS, PARTY CAN MAKE MOTION TO AUGMENT LIST WITH NEWLY RETAINED EXPERT

    (c) Joanne Hames


    Amending expert list

    AMENDING EXPERT LIST

    • MOTION TO SUBMIT TARDY EXPERT LIST

    • FAILURE TO DISCLOSE A RESULT OF MISTAKE, ETC.

    • CANCTIONS CAN BE IMPOSED

    (c) Joanne Hames


    Deposition of expert

    DEPOSITION OF EXPERT

    • CCP 2034

    • WITHIN 75 MILES OF COURT

    • EXPERT ENTITLED TO REASONABLE FEE

    • NO SUBPENA NEEDED FOR WITNESS

    (c) Joanne Hames


    Discovery motions

    DISCOVERY MOTIONS

    • MOTION FOR PROTECTIVE ORDER

    • MOTION TO COMPEL RESPONSE

    • MOTION TO COMPEL FURTHER RESPONSE

    • MOTION FOR SANCTIONS

    • MISCELLANEOUS MOTIONS

    (c) Joanne Hames


    Discovery motions1

    DISCOVERY MOTIONS

    • DISCOVERY ACT--CCP 2016 ET SEQ.

    • CALIFORNIA RULES OF COURT:

      • RULE 301 ET SEQ.

    (c) Joanne Hames


    General format

    GENERAL FORMAT

    • NOTICE OF MOTION

    • DECLARATIONS

    • SEPARATE STATEMENT

    • MEMORANDUM OF POINTS AND AUTHORITIES

    (c) Joanne Hames


    Notice of motion

    NOTICE OF MOTION

    • NATURE OF MOTION AND GROUNDS

    • BELOW CASE NUMBER:

      • DATE

      • TIME

      • LOCATION OF HEARING

      • NAME OF HEARING JUDGE

      • FILING DATE OF ACTION

      • TRIAL DATE

    (c) Joanne Hames


    Exhibits

    EXHIBITS

    • EACH EXHIBIT SEPARATED WITH HARD PAPER OR PLATIC TAB EXTENDING BELOW BOTTOM OF PAGE WITH EXHIBIT DESIGNATION

    • INDEX TO EXHIBITS

    • ENGLISH TRANSLATION IF NEEDED

    (c) Joanne Hames


    Memo of points and authorities rule 313

    MEMO OF POINTS AND AUTHORITIES (Rule 313)

    • Statement of facts

    • Concise statement of law, evidence and arguments

    • Discussion of law

    • Cases--only official cite needed

    • California Style Manual or Bluebook

    • Copies of non-California authorities to be attached (also Calif. Authorities if prior to publication in Advance Sheet)

    (c) Joanne Hames


    Memo of p and a s

    MEMO OF P AND A’S

    • 15 page limit for opening and responding memo

    • 10 page limit for reply

    • Memo’s in excess of 10 pages require TOA and TOC

    • Memo’s in excess of 15 pages require summary of argument

    (c) Joanne Hames


    Declarations affidavits

    DECLARATIONS/AFFIDAVITS

    • FIRST PERSON NARRATIVE

    • FACTUAL BASIS FOR MAKING OR OPPOSING MOTION

    • MEET AND CONFER REQUIREMENT

    • CAPTION: NAME OF DECLARANT AND IDENTIFICATION OF MOTION IT SUPPORTS OR OPPOSES

    (c) Joanne Hames


    Rule 335 format of discovery motions

    RULE 335--FORMAT OF DISCOVERY MOTIONS

    • REQUIRES SEPARATE STATEMENT WHERE FURTHER RESPONSES REQUESTED\

    • INCLUDES REQUEST, RESPONSE GIVEN, FACTUAL AND LEGAL REASONS FOR COMPELLING

      • CAN’T INCORPORATE REQUESTS AND RESPONSES BY ATTACHING DISCOVERY

    (c) Joanne Hames


    Rule 335 cont

    Rule 335, cont.

    • ALL INTERROGS, ETC, MUST BE IDENTIFIED BY SET AND NUMBER

    • IF OTHER DOCUMENTS ARE RELEVANT, THEY ARE TO BE SUMMARIZED

    (c) Joanne Hames


    Deposition testimony

    DEPOSITION TESTIMONY

    • ATTACH FOLLOWING:

      • TITLE PAGE

      • ONLY RELELVANT PAGES OF TRANSCRIPT WITH PAGE NUMBERS VISIBLE

      • HIGHLIGHT RELEVANT PORTIONS OF TRANSCRIPT

    (c) Joanne Hames


    Proposed order order

    PROPOSED ORDER/ORDER

    • FILE AND SERVE PROPOSED ORDER, BUT DO NOT ATTACH TO OTHER PAPERS

    • PREVAILING PARTY ALWAYS PREPARES

    (c) Joanne Hames


    Discovery in limited jurisdiction cases economic litigation

    DISCOVERY IN LIMITED JURISDICTION CASES(ECONOMIC LITIGATION)

    • CCP 90 - 100

    • NOTICE AND FORMAT REQUIREMENTS LIKE SUPERIOR COURT

    (c) Joanne Hames


    Discovery in limited juris cases

    DISCOVERY IN LIMITED JURIS. CASES

    • PERMISSIBLE FORMS:

      • COMBINATION OF 35 OF: INTERROGS, DEMANDS TO PRODUCE, REQUESTS FOR ADMISSIONS

      • ONE ORAL OR WRITTEN DEPO

      • DEPO SUBPENAS FOR DOCUMENTS

      • PHYSICAL/MENTAL EXAM

  • EXTENDED BY COURT ORDER OR STIPULATION

  • (c) Joanne Hames


    Case questionnaire

    CASE QUESTIONNAIRE

    • JUDICIAL COUNCIL FORM

    • DESIGNED TO ELICIT FUNDAMENTAL INFORMATION

    • PLAINTIFF CAN SERVE WITH COMPLAINT, BUT MUST ALSO SERVED COMPLETED COPY

    (c) Joanne Hames


    Request for statement identifying witnesses and evidence

    REQUEST FOR STATEMENT IDENTIFYING WITNESSES AND EVIDENCE

    • ANY PARTY CAN REQUEST 45- 30 DAYS PRIOR TO TRIAL

    • 20 DAYS TO RESPOND

    • COURT WILL EXCLUDE EVIDENCE NOT INCLUDED

    (c) Joanne Hames


    Prepared testimony by declaration

    PREPARED TESTIMONY BY DECLARATION

    • IN LIEU OF CALLING WITNESS (LAY OR EXPERT) IF

    • COPY SERVED ON OTHER PARTY 30 DAYS PRIOR TO TRIAL

    • AFFIANT LIVES WITHIN 150 MILES OF COURT AND ADDRESS IS PROVIDED TO OTHER SIDE AND WITNESS AVAILABLE FOR SERVICE OF SUBPOENA

    (c) Joanne Hames


    Settlement

    SETTLEMENT

    • GOVERNED BY CONTRACT LAW

    • DISPOSES OF CASE

    • ALSO KNOWN AS COMPROMISE AND RELEASE (C & R)

    (c) Joanne Hames


    Preparing for settlement

    PREPARING FOR SETTLEMENT

    • ORGANIZE FILE AND “SPECIALS”

    • DEMAND LETTERS

    • SETTLEMENT BROCHURES

    (c) Joanne Hames


    Special california rules concerns

    SPECIAL CALIFORNIA RULES/CONCERNS

    • CCP 998 OFFER

    • CCP 877.5 --SLIDING SCALE

    • STRUCTURED SETTLEMENT

    • MINORS

    (c) Joanne Hames


    Tort cases settlement and multi defendants

    TORT CASES: SETTLEMENT AND MULTI-DEFENDANTS

    • LIABILITY OF JOINT TORTFEASORS

      • COMMON LAW: EACH DEF. LIABLE FOR ALL DAMAGES TO PLAINTIFF

      • CALIF: CHANGES COMMON LAW AS TO GENERAL DAMAGES

        • SETTLEMENT BY ONE DEF CREATES PROBLEMS

    (c) Joanne Hames


    Hypothetical

    HYPOTHETICAL

    • P SUES D & E

    • P SETTLES WITH D FOR 100K

    • P GOES TO TRIAL AND GETS JUDGMENT AGAINST E FOR 500K

    • WHAT RIGHTS DOES E HAVE AGAINST D?

    (c) Joanne Hames


    Good faith settlement

    GOOD FAITH SETTLEMENT

    • GOOD FAITH SETTLEMENT BY ONE OF MANY DEFENDANTS RELEASES SETTLING DEFENDANT FROM ALL LIABILITY

    • MUST BE IN GOOD FAITH

    • DETERMINED BY MOTION

    (c) Joanne Hames


    Dismissal

    DISMISSAL

    • VOLUNTARY

      • BY PARTIES

      • JUDICIAL COUNCIL FORM

  • INVOLUNTARY

    • BY COURT: DISCOVERY SANCTIONS TIME VIOLATIONS

  • (c) Joanne Hames


    Dismissal1

    DISMISSAL

    • CLEARS COURT RECORD

    • CAN INCLUDE ENTIRE CASE OR PART OF CASE

    • WITH PREJUDICE OR WITHOUT

    (c) Joanne Hames


    With and without prejudice

    WITH AND WITHOUT PREJUDICE

    • WITHOUT PREJUDICE--CAN REFILE IF SOL ALLOWS

    • WITH PREJUDICE--CANNOT REFILE; SETTLEMENTS ARE WITH PREJUDICE

    (c) Joanne Hames


    Alternatives to settlement agreement

    ALTERNATIVES TO SETTLEMENT AGREEMENT

    • CONSENT DECREE

    • CONFESSION OF JUDGMENT

    • STIPULATED JUDGMENT

    (c) Joanne Hames


    Advanced civil litigation

    ADR

    • BINDING OR NON-BINDING

    • MEDIATION

    • ARBITRATION

    • MEDIATION/ARBITRATION

    • EARLY NEUTRAL EVALUATION

    • MINI TRIALS

    (c) Joanne Hames


    Pretrial

    PRETRIAL

    • SUBPOENA WITNESSES

    • ORGANIZE FILE/EXHIBITS

    • MARK AND COPY EXHIBITS

    • PREPARE TRIAL NOTEBOOK

    • ARRANGE DEMONSTRATIVE EVIDENCE

    • ARRANGE FOR AUTHENTICATION OF EXHIBITS

    • PREPARE PROPOSED JURY INSTRUCTIONS

    • TRIAL BRIEF

    (c) Joanne Hames


    Settlement conference

    Settlement Conference

    • (c) [Settlement conference statement] No later than five court days before the date set for the settlement conference, each party must submit to the court and serve on each party a mandatory settlement conference statement containing a good faith settlement demand and an itemization of economic and non-economic damages by each plaintiff and a good faith offer of settlement by each defendant. The statement must set forth and discuss in detail all facts and law pertinent to the issues of liability and damages involved in the case as to that party and comply with any additional requirement imposed by local rule.

    • (Subd (c)relettered and amended effective July 1, 2002; adopted as subd (d) effective January 1, 1985; previously amended effective January

    (c) Joanne Hames


    Exhibits presumed auththentic

    EXHIBITS PRESUMED AUTHTHENTIC

    • CERTIFIED COPIES OF PUBLIC DOCS

    • OFFICIAL PUBLICATIONS

    • NEWSPAPERS AND PERIODICALS

    • TRANDE INSCRIPTIONS

    • NOTARIZED DOCS (BUT THEY CANNOT BE HEARSAY)

    • COMMERCIAL PAPER

    • SIGNATURES OF PUBLIC EMPLOYEES AND FOREIGN OFFICIALS

    (c) Joanne Hames


    Authenticating business records

    AUTHENTICATING BUSINESS RECORDS

    • DRAFT DECLARATION OF CUSTODIAN OF RECORDS

      • RECORDS ARE TRUE AND CORRECT COPIES

      • RECORDS ARE KEPT IN ORDINARY COURSE OF BUSINESS

      • SIGNED BY CUSTODIAN

      • EVID. CODE 1561

    (c) Joanne Hames


    Authenticating other evidence

    AUTHENTICATING OTHER EVIDENCE

    • WITNESS TESTIFIES THAT IT IS WHAT IT PURPORTS TO BE

    • I.E. PHOTOS

    (c) Joanne Hames


    Jury instructions

    JURY INSTRUCTIONS

    • California Civil Jury Instructions (Judicial Council)

    • B.A.J.I.

    • Special Instructions

    (c) Joanne Hames


    Drafting proposed jury instructions

    Drafting Proposed Jury Instructions

    • [1]--Format Each proposed instruction must [Cal. Rules of Ct., Rule 229(c) ]:

    • - Be on a separate page or pages;- Contain the instruction number and title of the instruction at the top of the first page of the instruction; and- Be prepared without any blank lines or unused bracketed portions, so that it can be read directly to the jury.

    (c) Joanne Hames


    Drafting jury instructions

    Drafting Jury Instructions

    • Each instruction presented, except instructions presented by CACI number reference, must have at the bottom of the page a citation of authorities which supports the instruction. No citation is required for approved instructions [Cal. Rules of Ct., Rule 229(d)

    (c) Joanne Hames


    Advanced civil litigation

    Format of CACI Instructions Each proposed instruction must [Cal. Rules of Ct., Rule 229(c) ]:

    - Be on a separate page or pages;- Contain the instruction number and title of the instruction at the top of the first page of the instruction; and- Be prepared without any blank lines or unused bracketed portions, so that it can be read directly to the jury.

    Each set of proposed jury instructions must have a cover page, containing the caption of the case and stating the name of the party proposing the instructions, and an index listing all the proposed instructions [Cal. Rules of Ct., Rule 229(b)(2) ].In the index, approved jury instructions must be identified by their reference numbers. The index must contain a checklist that the court can utilize to indicate whether the instruction was [Cal. Rules of Ct., Rule 229(b)(3) ]:

    (1) Given as proposed;(2) Given as modified;(3) Refused; or(4) Withdrawn.

    Each set of proposed jury instructions must be bound loosely [Cal. Rules of Ct., Rule 229(b)(4) ].

    (c) Joanne Hames


    Trial

    TRIAL

    • VOIR DIRE

    • OPENING STATEMENTS

    • CASE IN CHIEF

    • DEFENSE

    • REBUTTAL

    • CLOSING ARGUMENTS

    • JURY INSTRUCTIONS

    (c) Joanne Hames


    Evidence2

    EVIDENCE

    • TESTIMONY

    • DEMONSTRATIVE

    • DOCUMENTARY

    • JUDICIAL NOTICE

    (c) Joanne Hames


    Trial motions

    TRIAL MOTIONS

    • IN LIMINE—EVIDENTIARY

    • NON SUIT

    • DIRECTED VERDICT

    (c) Joanne Hames


    Post trial proceedings prevailing party

    POST TRIAL PROCEEDINGS--PREVAILING PARTY

    • NOTICE OF ENTRY OF JUDGMENT

    • COST BILL (MEMORANDUM OF COSTS)

    • COLLECTION

      • RECORDING ABSTRACT OF JUDGMENT

      • ORDER OF EXAMINATION

      • WRIT OF EXECUTION/WAGE ATTACHMENT

      • FILE SATISFACTION OF JUDGMENT

    (c) Joanne Hames


    Post trial proceedings loser

    POST TRIAL PROCEEDINGS --LOSER

    • STATEMENT OF DECISION (CT. TRIAL)

    • MOTIONS

      • NEW TRIAL

      • JUDGMENT N.O.V.

      • TAX COST

  • APPEAL

  • TIME LIMITS CRITICAL

  • (c) Joanne Hames


    Motion procedure

    MOTION PROCEDURE

    • Similar to pretrial motions

      • File appropriate motions

      • Call trial department for date

    (c) Joanne Hames


    Appeal

    Appeal

    • Unlimited Jurisdiction

      • 60 days

    • Limited Jurisdiction

      • 30 days

      • Appellate division of Superior Court

    (c) Joanne Hames


    Appeal1

    Appeal

    • Notice of Appeal/Filing fee/Where filed

    • Request for Clerk’s Transcript and Reporter’s Transcript

    • Brief Requirements

      • Due dates

      • Covers

      • Content

    (c) Joanne Hames


    1000 essential factual elements

    1000Essential Factual Elements

    Paula Perry claims that she was harmed because of the way Joe Buff managed his property. To establish this claim, Paula Perry must prove all of the following:

    • That Joe Buff owned the property,

    • That Joe Buff was negligent in the use or maintenance of the pr operty,

    • That Paula Perry was harmed, and

    • That Joe Buff’s negligence was a substantial factor in causing Paula Perry’s harm.

    (c) Joanne Hames


    Advanced civil litigation

    What is Computer Forensics?

    “Computer Forensics is simply the application of computer investigation and analysis techniques in the interest of determining potential legal evidence.”

    Judd Robbins

    (c) Joanne Hames


    Advanced civil litigation

    The Three A’s

    Basic methodology

    • Acquire

    • Authenticate

    • Analyze

    (c) Joanne Hames


    Advanced civil litigation

    Bit Stream Image Copy

    Original

    Copy

    (c) Joanne Hames


    Advanced civil litigation

    The Process

    • It is critical that you obtain an exact image

    • Computer evidence is fragile

    • The forensic methodology used must be completely non-invasive to the original data

    • Special forensic tools allow for safe recovery

    • The forensic process is run on the image

    (c) Joanne Hames


    Advanced civil litigation

    Bit Stream Image vs File Copy

    versus

    Bit Stream

    File

    (c) Joanne Hames


    Advanced civil litigation

    So, what’s missing?

    • Deleted Files

    • File Remnants

    • Swap File Data

    File Copy

    (c) Joanne Hames


    Advanced civil litigation

    File slack

    Hidden files

    Unallocated space

    Temporary files

    History files

    What is capable from a CF exam?

    The nature of data storage on computer disks also often allows recovery of data from:

    Formatted disks

    (c) Joanne Hames


    Advanced civil litigation

    Who cares about the missing data?

    Steinberg, Moorad, & Dunn vs. David Dunn

    • "This is a case about greed, fraud, betrayal, theft, attempted cover-up and extortion."

    • Departing partner stealing company client lists and/or files and contracts.

    • Memo had been deleted from a computer, but has been uncovered by forensic examiner.

    $45 million

    (c) Joanne Hames


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