Civil Litigation

 Provides basis of lawsuit  In California, complaint must state facts that constitute a c/a  At trial, attorneys must prove facts that constitute a c/a  Existence of c/a determined by substantive law: cases and statutes 2

 Facts that constitute a legally recognized right to relief under some substantive law  Each c/a has elements  what has to be proved 3

 Def. Has duty of due care  duty breached  actual cause  proximate cause  damages 4

 Existence of Contract  All P’s conditions precedent or concurrent fulfilled or excused  Breach by Def.  Damages 5

 Time limit for filing a lawsuit  Found in Statutes  Calif: CCP--  Date of Occurrence v. Date of Discovery 6

7 An action against an attorney for a wrongful act or omission, other than actual fraud…shall be commenced within one year after the plaintiff discover, or through the use or reasonable diligence should have discovered, the facts constituting the wrong act or omission or four years from the date of the wrongful act or omission, whichever occurs first.

 Do not count first day  Do count last day  If last day, holiday or weekend, next court date  Tolling of statute  Minority  Def. Out of state 8

 Equitable equivalent of SOL  E.G.--Specific performance v. Breach of K 9

 Some cases require claims to be made within certain time  claim is not a lawsuit  not filed in court but with agency  times usually shorter than sol 10

 Public Agencies  Decedents  Health Care professionals--Notice requirement 11

 Suits against governmental agencies  for P.I.--Within 6 months in Calif.  In.U.S. --two years  sometimes preprinted forms, sometimes not  How to identify Public Agencies 12

 Gov’t Code §§900 et seq/  Written Claim submitted to agency  name and address of claimant  address for notices from agency  date, place, circumstances of incident  general description of damages/injury  name of public employee if known  smount claimed if under 10K 13

 Claim filed with governing board of agency  Public agency has 45 days to act  If public agency denies claim, Plaintiff has 6 months to file lawsuit from denial  If public agency does not respond, claim deemed denied after 45 days 14

 File petition to allow late claim with board  If denied, file petition in court to allow filing of lawsuit without filing claim  Grounds for relief  mistake, inadvertence, surprise, excusable neglect  plaintiff a minor or incapacitated 15

 Calif. Probate Code  Judicial Council Form  Presented w/I 30 days of notice to creditors or 4 months of appt of representative 16

 90 day notice of intent to sue mailed to M.D. and Medical Board  Only required where plaintiff has lawyer  Failure can result in disciplinary proceedings against lawyer, does not affect case 17

 Calendaring system ◦ Computerized or manual ◦ How  Appearances: Court dates/ depositions/etc.  Filing Dates: Complaint/discovery etc. 18

 Cost v. Value  Turning Down a Case  Writing 19

 California rules of professional conduct  Competency  Frivolous Claims  Malicious Prosecution  Conflict of Interest  Conflict Check  waiver 20

 Communication with client  Communication with Opposing party  Confidentiality  Honesty 21

 Types: flat fee/hourly/contingent  Written Fee Agreements  Required in Calif.  “Retainer Letter”  Fee Sharing 22

 Contingency Rate or hourly rate  nature of work to be done  how disbursements and costs affect recovery  respective duties of attorney and client  fees negotiable--except med mal. 23

 Must be approved by court  Sometimes before/sometimes after  usually limited by court 24

 All Client Funds must be deposited here  Banks report overdrafts to State Bar  Interest ? 25