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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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