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  1. BBR Title Slide TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM Fall 2006 INSTRUCTOR: TROY R. SZABO

  2. TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM COURSE OVERVIEW

  3. COURSE OBJECTIVES • ACQUIRE FUNDAMENTALS OF TORT LAW • ENHANCE CASE ANALYSIS AND EVALUATION • UNDERSTAND CASE STRUCTURE AND TIMELINE • ENHANCE CASE DEVELOPMENT SKILLS • ENHANCE DAY-TO-DAY PARALEGAL SKILLS

  4. WHAT IS A TORT?

  5. TORT: A wrongful injury to a person or his/her property. Or A civil wrong against another

  6. “Person” may include an actual living person or a business, such as a partnership or corporation.

  7. BROAD CATEGORIES OF TORT LAW: • NEGLIGENCE • INTENTIONAL TORTS • STRICT LIABILITY

  8. WHAT ARE SOME REAL-LIFE EXAMPLES OF TORT CASES?

  9. NEGLIGENCE: The failure to exercise ordinary care.

  10. ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.

  11. Put differently, “Negligence” is: • Doing something that a reasonably careful person would not do (a negligent act) OR • Failing to do something that a reasonably careful person would do (a negligent omission).

  12. COMMON ELEMENTS OF ALL TORT CASES: • DUTY • BREACH OF DUTY • CAUSATION • DAMAGES

  13. UNSPOKEN ELEMENT OF ALL TORT CASES: • A SOLVENT DEFENDANT WHO CAN PAY DAMAGES • WHICH MEANS EITHER: • INSURANCE • WEALTH/LIQUID ASSETS • HOWEVER – BANKRUPTCY IMPLICATIONS

  14. PUBLIC POLICY OBJECTIVES IN TORT LAW

  15. Accountability: Protecting persons and property • Deterrence: Minimum standards of social conduct • Allocating Losses: Placing the economic burden where it can best be afforded

  16. ANALYZING TORT CASES

  17. ANALYTICAL FRAMEWORK: IRAC • Which Issues are presented; i.e., what general area of law is involved • What is the applicable Rule of law? • Apply the rule to the facts. • This produces the appropriate Conclusion.

  18. CASE ANALYSIS: GENERAL TO SPECIFIC Example: Customer walks up to a store clerk and strikes him until he collapses

  19. CASE ANALYSIS: GENERAL TO SPECIFIC • General tort topic: Example: intentional • Specific tort: Example: Battery • Issues framed by facts: A customer strikes a store clerk • Rule of law: Unwanted touching = battery • Apply rule to facts: The beating = unwanted touching

  20. CASE ANALYSIS: A QUESTION TO ASK What is a jury likely to do?

  21. CASE EVALUATION: A QUESTION TO ASK What is the case worth?

  22. OVERVIEW OF A CIVIL CASE

  23. HOW A CIVIL CASE PROGRESSES • PLAINTIFF FILES A COMPLAINT • DEFENDANT FILES AN ANSWER • THE PARTIES ENGAGE IN DISCOVERY • PRETRIAL PROCEDURES AND MOTIONS • ALTERNATIVE DISPUTE RESOLUTION • TRIAL • POST-TRIAL AND APPEAL

  24. COMPLAINT OR PETITION A “PLEADING” FILED BY PLAINTIFF IN COURT THAT INITIATES A LAWSUIT. IN CALIFORNIA, CALLED A “COMPLAINT.” MUST BE SERVED ON DEFENDANT; GENERALLY SERVICE IS HAND DELIVERY BY AUTHORIZED OFFICER (USUALLY A SHERIFF OR DEPUTY). CAN ALSO SERVE BY MAILING. 4. NATURAL PERSON IS SERVED “IN PERSON.” CORPORATION IS SERVED BY SERVING “REGISTERED AGENT,” PRESIDENT OR VICE-PRESIDENT.

  25. COMPLAINT CONT’D: STATUTE OF LIMITATIONS: FOR MOST INJURY AND PROPERTY DAMAGE CASES = 2 YEARS STATUTE OF LIMITATIONS: FOR DEFAMATION, FALSE ARREST = 1 YEAR LIMITATIONS PERIOD GENERALLY BEGINS TO RUN WITH DATE OF THE INCIDENT IN QUESTION

  26. ANSWER WRITTEN RESPONSE OF DEFENDANT TO PETITION OR COMPLAINT IN CALIFORNIA, ANSWER DUE 30 DAYS AFTER SERVICE. IN CALIFORNIA, THE ANSWER MAY BE A GENERAL DENIAL ONLY OR MAY ALSO ALLEGE DEFENSES. IN FEDERAL COURT, MUST RESPOND TO EACH ALLEGATION OF COMPLAINT AND ALLEGE DEFENSES.

  27. DISCOVERY DISCLOSURES – BASIC REQUIRED INFORMATION. INTERROGATORIES REQUESTS FOR PRODUCTION OF DOCUMENTS REQUESTS FOR ADMISSION MOTION FOR INDEPENDENT MEDICAL EXAMINATION DEPOSITIONS ON WRITTEN QUESTIONS ORAL/VIDEO DEPOSITIONS

  28. PRETRIAL PROCEDURES AND MOTIONS COURT ISSUES ON ITS OWN, OR AT REQUEST OF ONE OR MORE PARTIES, A CASE MANAGEMENT DOCUMENT SETS DEADLINES, INCLUDING A SETTLEMENT CONFERENCE AND TRIAL SETTING CONFERENCE. A CASE MAY BE PUT ON THE “FAST TRACK” – GOES TO TRIAL WITHIN A YEAR OF FILING. POSSIBLE JOINDER OF ADDITIONAL PARTIES – ADDITIONAL DEFENDANTS, INTERVENORS OR THIRD PARTY DEFENDANTS

  29. PRETRIAL PROCEDURES AND MOTIONS CONT’D MOTIONS AND RESPONSES FILED BY THE PARTIES ASKING THE JUDGE TO MAKE A RULING OR ORDER ON SOME MATTER RELATING TO THE CASE. EXAMPLE: MOTION FOR SUMMARY JUDGMENT OR DEMURRER. • PRETRIAL CONFERENCE: i.e., MOTIONS IN LIMINE.

  30. TRIAL JURY OR NON-JURY JURY SELECTION (VOIR DIRE), IF APPLICABLE OPENING STATEMENTS PRESENTATION OF EVIDENCE CHARGE CONFERENCE COURT’S CHARGE CLOSING ARGUMENTS CLOSING ARGUMENTS DELIBERATIONS VERDICT

  31. POST-TRIAL AND APPEAL MOTION FOR ENTRY OF JUDGMENT OR JUDGMENT N.O.V. MOTION FOR NEW TRIAL NOTICE OF APPEAL REQUEST FOR TRANSCRIPT AND STATEMENT OF FACTS APPELLATE BRIEFS ORAL ARGUMENTS AT COURT OF APPEALS APPEAL TO HIGHER COURT – i.e., CALIFORNIA SUPREME COURT

  32. ALTERNATE DISPUTE RESOLUTION (ADR) • MINI-TRIAL OR SUMMARY JURY TRIAL • ARBITRATION • MEDIATION

  33. MINI-TRIAL OR SUMMARY JURY TRIAL BY AGREEMENT, CASE IS PRESENTED TO SMALL JURY IN ABBREVIATED FASHION. PARTIES AGREE IN ADVANCE TO BE BOUND BY OUTCOME OR TO USE OUTCOME TO AID SETTLEMENT NEGOTIATIONS.

  34. ARBITRATION CASE IS DECIDED BY NEUTRAL 3RD PARTY OTHER THAN JUDGE FOLLOWING ABBREVIATED PRESENTATION OF EVIDENCE.

  35. MEDIATION ASSISTED SETTLEMENT CONFERENCE LED BY NEUTRAL 3RD PARTY WHO ACTS AS FACILITATOR AND AN “ADVOCATE FOR SETTLEMENT.” MEDIATOR CANNOT DECIDE CASE OR MAKE RULINGS, BUT ASSISTS PARTIES IN REACHING MUTUALLY AGREEABLE RESOLUTION.