Introduction to GAP Associate Program Welcome! Purpose & Goals of Program Understand how to formulate and implement litigation strategy Understand significant stages in pretrial advocacy Practice important skills within these stages Importance of Interactive Nature of Course & Rules This is a safe space to try out ideas! Listen actively and attentively Do not interrupt other students Do not monopolize class discussion Respect one another when offering feedback and challenging or critiquing ideas Maintain confidentiality with respect to class discussions Other rules suggested and adopted by class?

Introduction (cont’d) Introductions Topics to be covered Client Relations; Preparation for & Commencement of Lawsuit Practice Guides & Research Planning Disclosure & Discovery Discovery Disputes; Meet & Confer Process Motions Depositions Depositions Practice & Wrap-up Course Logistics Review of fact pattern Divide class into Plaintiff/Defendant groups Divide each side into groups of approximately 5 students (“firms”) & pair up “firms”

Class I Objectives Subject Matter: Client Relations Preparation for a Lawsuit Commencement of a Lawsuit By the end of this class you will be able to: Describe the components of a litigation plan Explain the formal structural and procedural requirements of complaints and answers Recognize decisions to be made surrounding the filing of complaints and answers (and affirmative defenses / counterclaims) Prepare a complaint and answer

Client Relations & Development Client Development How do firms get clients? How do firms retain clients? How do firms develop clients? Client Interactions How to interact with clients

Preparation for a Lawsuit Litigation Planning Establish Attorney-Client Relationship Initial contact Conflicts check Retainer letter Determine Client’s Needs & Priorities What does the client want to achieve? Any limitations? Determine Potential Claims, Defenses & Counterclaims (and elements of each) Consider all legal theories and requirements Consider what other side might have against your client (evidence and/or counterclaims)

Preparation for a Lawsuit Identify Likely Sources of Proof What proof will you need? Where will you get it? Determine Necessary Informal Fact Investigation What can you get from your client? From public or other sources? Determine Necessary Formal Discovery What information will you need from opponent? What information will you need from third parties? Identify Possible Solutions What is the best way to deal with this conflict? Potential options Wait Seek informal resolution Seek formal dispute resolution Litigate

Preparation for a Lawsuit Develop Litigation Strategy Make sure to keep your client’s goals in mind & that each step you are taking will help your client achieve these goals Important questions to consider Where can the lawsuit be filed? What claims, defenses, or counterclaims should be pled (consider size of lawsuit and subject matter jurisdiction)? What parties must/can be joined (questions of size and personal jurisdiction)? What discovery is appropriate? What motions should you plan? When should you explore settlement? Estimate Litigation Cost & Timetable Create budget and time estimate for each stage

In-Class Exercise Divide into “firms” Discuss the above considerations with regard to your fact pattern Report back with brief litigation plan Class discussion

Commencement of Lawsuit – Complaint Pleading Requirements Liberal pleading standard in general Differences between California state and federal pleading standards Structure of Complaint Remember to always check applicable rules for formatting and other requirements Caption page Establish jurisdiction and venue Identify parties Set forth facts establishing entitlement to relief Causes of action Prayer for relief Signature Jury trial demand

Commencement of Lawsuit – Complaint Filing the Complaint Check all applicable rules! Documents to be filed with complaint Civil Cover Sheet Corporate Disclosure Statement Info on ADR Procedures Filing Fee Serving the Complaint Summons Purpose Provide notice to defendant of lawsuit, time to respond, consequences of failure to respond

Commencement of Lawsuit – Complaint Contents Name of court and parties Directed to defendant Name and address of plaintiff’s attorney Time within which defendant must appear and defend Notify that failure to do so will result in default Bear court’s seal Preparation Prepared by plaintiff’s attorney Presented to court clerk for issuance on or after filing the complaint Issued when clerk signs it, affixes seal, and returns to attorney for service Timing Must be served within certain period of time

Commencement of Lawsuit – Complaint Service Basics Formal delivery of documents in manner legally sufficient to charge defendant with notice of pending action Permits court to assert personal jurisdiction over defendant (if proper basis) Service Methods Check all applicable rules! Can be made within state where summons issued, or outside forum state if made pursuant to state’s long arm statute (or federal statute) Can be effected on individual under state law (or federal law) by personal delivery; delivery at defendant’s dwelling with someone of suitable age and discretion who also resides there; or delivery to an appointed agent for service of process. Can be effected on a business entity under state law (or federal law) by delivering a copy of the summons/complaint to an officer, managing or general agent, or any other authorized agent. Proof of Service

Commencement of Lawsuit – Answer Decision to file answer or motion Purpose Should contain any denials / defenses necessary to controvert material allegations of complaint Can also include counterclaims Structure Check all applicable rules! Admit / deny allegations asserted in complaint Admissions Required to admit truthful averments in complaint Denials Only deny if warranted by evidence or reasonably based on belief / lack of information Failure to deny = admission General, limited, or specific denial

Commencement of Lawsuit – Answer Affirmative Defenses Definition Any assertion raising new facts / arguments that, if true, will defeat plaintiff’s claim, even if all allegations in complaint are true Waiver If not included in responsive pleading, certain defenses are waived Requirements Must be stated in short & plain terms Must be pled with enough specificity or factual particularity to give plaintiff fair notice of defense Certain defenses must be pled with particularity (fraud / mistake) Can assert inconsistent causes of action Customary to include prayer for relief Signed by attorney of record Filed with court, including proof of service

Commencement of Lawsuit – Answer Counterclaims Definition A claim for affirmative relief asserted by party against opposing party. Not limited to amount or type of relief sought by plaintiff Format Usually included in answer Must be in separate section and included in title Pleading Requirements Same standards as complaint Permissive vs. Compulsory Compulsory counterclaims must be pled at time of responding Includes any claim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim Waived if not asserted Permissive may be pled at any time Answer to Counterclaim Required within same time period as regular answer and in same format

In-Class Exercise Assignment: Complaint & Answer In-Class Your “firm” will draft a complaint (each side will file a complaint). Your “firm” will then answer the complaint filed by your opposing “firm.” In-Class Meet with “firms” to discuss plan for complaints and answers (plan your claims & anticipate other side’s claims and your potential defenses) Report back and class discussion

Overview of Next Class Assignment Tomorrow Wednesday Please submit the complaints and answers by noon on Wednesday, Dec. 6, so we can go over them in Wednesday’s class. You can negotiate with opposing counsel regarding times to file/serve complaints (via email). Tomorrow You will learn about practice guides & research planning Wednesday We will review your complaints & answers and discuss your thoughts and questions We will then discuss discovery, in particular, written discovery, and you will draft short discovery requests and responses with your “firm” in class