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Semelhante a Chapter 16 sixteen trial preparation post discovery to pre-trial (20)
Chapter 16 sixteen trial preparation post discovery to pre-trial
- 1. Civil Litigation:
Process and Procedures
Chapter Sixteen
Trial Preparation – Postdiscovery to Pretrial
- 2. Pretrial Preparation
Determined there is a valid cause of action
or defense
Researched the legal claim
Identified the necessary elements
Careful investigation & evaluation
Perceived credibility of the client
Gathered enough admissible evidence to meet
the burden of proof
Made settlement efforts
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 3. Legal Issues
Points of dispute on which law is applicable
and/or how the law should be applied
Procedural issues – how the case is conducted
Substantive issues – does the law permit
recovery?
Claims – allegations that all the necessary
facts exist to prove each element
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 4. Inadequate Claim
Discovery reveals insufficient proof of the
claim
The π’s attorney withdraws the claim
Either attorney makes a summary judgment
motion (on claim or defense)
Motion for judgment on the pleadings
Forces the attorneys to focus on the legal
claims/defenses & elements
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 5. Summary Judgment
States there are no material facts at issue
(uncontroverted facts)
States the only remaining dispute is one
of law
Argues that, according to the law, their
side should win
Can resolve the whole case or remove one
or more issues from the trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 7. Stipulations
Like a request for admissions, stipulations
remove agreed-upon issues from the trial
Facts that have been stipulated to are
presented as uncontested to the trier of
fact
Reduces court time & costs of litigation
Demonstrates the ability to cooperate, and
underscores the remaining issues in
controversy
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 8. Trial Memorandum I
A lawyer’s summary of the case, prepared as a
guide for the judge, pursuant to court rule or
the judge’s preference.
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 8
- 9. Elements of a Trial
Memorandum I
Jurisdiction, facts & Identity/contact
contentions information of
(identifies disputed witnesses &
facts), legal issues & qualifications,
authority summary of reports
Description of of expert witnesses
damages, proof of Discovery issues,
settlement authority medical reports,
desired stipulations
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 9
- 10. Elements of a Trial
Memorandum II
Estimated length of Special verdict
trial questions
Schedule of
proposed, numbered
exhibits
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. A More Formal Version
Signed by both attorneys, to become a
court order
May also include
Questions for voir dire
Proposed jury instructions
Evidentiary & equipment issues
Deposition testimony to be used in court
Exact content varies from court to court
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 11
- 12. Trial Brief
Prepared for court
Sets forth a legal argument & authority
Will usually address
Substantive law issues (claims or defenses)
Procedural issues, e.g.,
Evidentiary issues
Jury instructions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Duty of Candor
A lawyer shall not knowingly
Make a false statement of fact or law
Offer false evidence
Must also disclose a controlling case or
statute, even if
It is adverse to that side’s position
The other side failed to discover it
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 13
- 14. Costs of Litigation
Parties are generally responsible for the cost
of litigation, win or lose
Exceptions include
Statutory authority allows for a transfer (e.g., counsel
fees awarded in a divorce, some civil rights actions)
Costs awarded in enforcing a court order
Costs awarded in defending a frivolous claim
By agreement of the parties
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 15. Contingency Fee Arrangement
Makes litigation possible for clients who
cannot muster a retainer for an hourly
charge
The percentage of the recovered amount
pays for the time that would otherwise be
billed
The client remains responsible for the
expenses of litigation, win or lose
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 15
- 16. Cost/Benefit Analysis
The probability of winning the case
The amount of money to be won or lost
Whether the Δ is judgment-proof
Lawyers’ fees & other costs
Loss of time by personnel (business-party)
Long-term effects on relationships & reputation
Availability & amount of prejudgment interest
Aggravation & psychological costs
Unpredictability of a trier of fact or law
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 17. Client and Witness Preparation
Issues related to personal style that may
affect credibility
Appropriate attire, hair, make-up
Appropriate demeanor
Testimony
Not conversational, under oath
One speaker at a time (for recording ease)
Stop at an objection & wait until instructed to
answer
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 18. Questions
Prepare the witness or party for the type
of questions to expect
Leading or narrative
Review chronology of events
Review prior statements
Perhaps practice responding to a hostile
examination, although “over-rehearsed”
adversely affects credibility
Try to practice in the courtroom, if possible
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 18
- 19. Pretrial Instructions
Subpoena all witnesses
Hostile – puts the power of the court behind
the request to appear
Friendly – makes it easier to make work
arrangements, and enhances credibility
(appearance is pursuant to a court order)
Special arrangements may need to be made
for witnesses who cannot appear at the outset
& wait to be called much later
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19
- 20. Witnesses “On-Call”
Usually possible in a very long trial
Witness must be near enough to appear
on short notice
Need court permission
Must be able to contact the witness
quickly if the trial proceeds at an
unexpected pace
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 20
- 22. Preparation of Exhibits
Organize documentary evidence
May need to produce paper copies, marked &
numbered
May be using electronic material, with courtroom
presentation equipment
Prepare demonstrative evidence
Photographs, charts, diagrams
May be prepared in-house or by outside services
May be posters, models, or electronic
presentations
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 23. Effective
Demonstrative Evidence
Can be
PowerPoint or other electronic presentation
Overhead projection of transparencies or by
document camera
Posters on easels
Should be
Large enough to be seen
Acceptable as an accurate representation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 24. Jury Investigation
Begins with determining the profile of an
ideal, or sympathetic, juror for each case
Jury pool is identified & reviewed
Online research
Public records
News archives, professional sites, etc.
Previous court involvement (π or Δ, liens, etc.)
Jury questionnaire
Voir dire
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 25. Extraordinary Preparation
Only cost-effective in a trial with a very
large judgment at stake (high damages)
Mock jury trial
Create a mock jury with the jury profile
Present the case
Jury critiques the testimony, presentation
Helps fine-tune the presentation &
validate the jury profile
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 25
- 26. Trial Notebook
Hard copy (binders) or electronic
(litigation support software)
Contents vary in each case, but generally
include
Copies of legal authority, jury instructions
Sections for each witness
Outlines for opening, closing, questions
Exhibits, and how they will be authenticated
Copies of discovery document to be used for
impeachment (prior sworn statements)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 26
- 27. Continuances
Once set, trials may be postponed if
Judge or an attorney is not available
Due to another trial running long
Serious illness
At the discretion of the court, but usually
granted for good cause
If the attorney is “attached” or the trial is
set with a “date certain,” continuances will
probably not be granted
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 27