WELCOME TO THE UNIT 3 SEMINAR This evening’s topic is the post interview work.

Intake Interview  Conduct an initial discussion with your client. Develop a preliminary prediction of the total damages to evaluate the preliminary evidence and circumstances. Based upon this prediction:  Encourage your client to drop the case.  Take the case.  Refer the case.

Case Evaluation & Strategy  Objectives  Facts  Causes of Action  Parties  Timeline  Witnesses – experts?

Case Evaluation & Strategy  Settlement options  Jurisdiction and venue

Civil Procedure  Propose Informal Settlement  Draft a demand letter setting out the claims and damages

Civil Procedure  Determine Jurisdiction  Personal jurisdiction  Subject matter jurisdiction  Venue

Personal Jurisdiction  Refers to the ability of a court to exercise power over a particular defendant or item of property  Physical presence in the state  State resident  Consent (may be implied)

Subject Matter Jurisdiction  Federal Question Jurisdiction  Arising under the U.S. Constitution, federal statute, regulation, executive order, or treaty  Diversity of Citizenship  Only for civil suits  Parties from different states  Amount in controversy that exceeds $75,000.  Federal question doesn’t matter

Venue  The designation of the proper district in which to bring an action  Venue will depend on the nature of the jurisdiction (I.e., whether federal question or diversity of citizenship)

Venue  May be brought in a judicial district where any defendant resides if all defendants reside in the same state  A judicial district in which a substantial part of the events leading to the lawsuit occurred  A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced

Civil Procedure  Determine the Cause of Action and the relief sought  Usually some type of damages  Compensatory  Punitive  Or Declaratory Relief  Injunction  Specific performance

Complaint  The plaintiff's lawyer files the complaint in court. It  Establishes jurisdiction  Contains a short and plain statement of the claim  States the relief requested

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND JOHN RUNDLETT, INC - Plaintiff v DONALD POSNER - Defendant * * * * * CASE NO. 24-C * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * COMPLAINT Plaintiff, John Rundlett, by his undersigned counsel, sues Defendant Donald Posner and, in support,states as follows: COUNT I: NEGLIGENCE 1.Plaintiff John Rundlett is a resident of Baltimore City, Maryland. 2.Defendant Donald Posner is a resident of Anne Arundel County, Maryland. 3.On or about March 10, 2001, Defendant was operating a Bobcat backhoe (“the Bobcat”) on his property at 644 Snail Drive in Glen Burnie, Maryland.

4.The Bobcat was stuck and Defendant was unable to move it forward. Defendant called to Plaintiff to ask him for assistance. Plaintiff surveyed the land on which the Bobcat sat and was unable to determine why the Bobcat was stuck. 5.Plaintiff began to walk back to his property. Moments later, the Defendant, operating the Bobcat in a negligent and careless manner, hit the Plaintiff without warning, pining him up against an automobile, causing Plaintiff severe injury. 6.At all times herein mentioned, Plaintiff was acting in a reasonable, prudent manner. 7.It was the duty of the Defendant to use due care to watch where he was driving, to maintain a proper lookout, to reduce speed to avoid an accident, to maintain a proper distance between his vehicle and the Plaintiff, and to control his vehicle in order to avoid a collision.

8.Defendant breached that duty of due care by failing to use due care by watching where he was driving, failing to maintain a proper lookout, failing to reduce speed to avoid an accident, failing to maintain a proper distance between his vehicle and the Plaintiff, and failing to control his vehicle in order to avoid a collision with Plaintiff. 9.As a direct and proximate result of the negligence of the Defendant, Plaintiff has suffered physical injuries and mental anguish. Plaintiff has incurred expenses for medical care and treatment, medicines, nursing services, physical therapy, and other types of medical related attention. Plaintiff also has lost wages and will continue to lose such wages in the future. Plaintiff continues to suffer physical pain and discomfort from this accident, including a broken wrist that will not heal and two herniated discs at C4-C5 and C5-C6 that will require surgery. All the above damages were directly and proximately caused by the aforementioned negligence of the Defendant and were incurred without contributory negligence or assumption of the risk on the part of the Plaintiff. Plaintiff also did not have the opportunity to avoid this accident. WHEREFORE, the Plaintiff demands judgment against the Defendant for TWO MILLION DOLLARS ($2,000,000.00) plus interests and costs for Count I of Plaintiff’s Complaint.

Service  The plaintiff arranges for the defendant to be “served” (i.e., notifies him that the complaint has been filed with the court). Service consists of  a copy of the complaint and  a summons.

Service  Depending on state law, service may be effected in several ways:  By a sheriff or constable  By a third party who has been certified by the court  By any non-party who is over the age of 18  Federal rule

Service  Waiver  In some jurisdictions, including federal, a plaintiff may mail a copy of a complaint and summons to a defendant, and include a SASE and a waiver of service.

Answer  The defendant must answer the complaint or be liable (called a default judgment).  Usually 20 days from the date you are served  But if you waive under the federal system you get 60 days

Answer  The answer is a description of the events from the defendant's point of view in which he denies facts and/or liability.

Pre-Trial Conference  Primarily used for scheduling and to evaluate the chances for settlement.

Discovery  Generally, either side can request discovery, and both sides reveal their case, work toward agreement of the facts, evaluate the case, and advise the client accordingly.

Discovery  Discovery consists of one or more of the following:  Interrogatories  Request for Production of Documents  Request for Admissions  Depositions

Interrogatories - Example If anyone investigated this matter for you, including medical experts, private investigators or insurance adjusters and state their name(s) and address(es), and state whether such investigation was reduced to writing. If said investigator obtained any signed statements or recorded statements, identify the person who gave the statement and attach to your Answers a copy of any said statement.

Req for Production of Docs - Example 1. Please produce all written reports of each person whom you expect to call as an expert witness at trial.

Pre-Trial Procedures  Motion for Summary Judgment  Judgment on the pleadings  No question of fact, only of liability  Motion to Dismiss  Failure to state a claim  Failed to make a “prima facie” case

Trial  You may request that the case be decided by a judge (called a bench trial) or a jury.  You may wish to request a judge if the case is technical or if there is concern that the jury may be prejudiced.

Voir Dire  Challenges for cause  Peremptory challenges  Cannot be a pattern of challenges to exclude women or minorities

Trial Procedures  Opening Statements  Direct exam by plaintiff  Cross exam by defense  Motions by defense  Directed verdict

Trial Procedures  Direct exam by defense  Cross exam by the plaintiff  Closing arguments  Jury instructions  Verdict and judgment

Evidence  Testimonial  Direct  Indirect or Circumstantial

Evidence  Evidence must be relevant  Witness must be competent  Must be able to understand the oath

Privileges  Attorney Client Privilege  Marital Privilege  Clergy Privilege  Other Possible privileges:  Accountant/client  Doctor/patient  Psychotherapist/patient

Post -Trial Procedures  Judgment Notwithstanding the Verdict (JNOV)  Judge can enter a judgment contrary to the jury’s verdict  Appeals

Bluebook: Uniform Citation For Legal Reference

How to Cite?  The order of the citation is important because each part identifies something in the reference that can lead the reader to the original source as you found it.  Each legal source has its own particular order to follow and specific information that must be included in the cite.

How to Cite Cases?  United States v. MacDonald, 531 F.2d 196, (4 th Cir. 1976)  United States and MacDonald are the parties  531 is the reporter volume number  Federal 2 nd (F.2d) is the reporter  196 is the first page of the case  is where you can find the quote (or info) you are discussing  4 th Circuit is the court that issued the opinion  1976 is the year the opinion was issued

How to Cite Cases?  Always underline or italicize case names:  Smith Corp. v. Doe Inc.  The “v.” is lowercase, is followed by a period, and is not “vs.”:  Paradise v. Parker,

How to Cite Cases?  Follow case names by a comma (which is not underlined or italicized):  Arizona v. Fulminante,

How to Cite Cases?  Do not include parties' first names unless they are the name of a corporation:  Baker v. John Smith Inc.,  If there is more than one plaintiff or defendant, use only the first party on each side.

How to Cite Cases?  Do not abbreviate United States in a case name:  United States v. Michigan,  Some words may be abbreviated, but do not abbreviate them if they are the first word of a party.  Straley v. Brookings Corp.,  Refer to the Bluebook for common abbreviations.

Federal Cases  U.S. Supreme Court:  Cite to U.S.  If it's not yet published there, cite to S. Ct., L. Ed., U.S.L.W., or LEXIS, in that order of preference.  Do not include parallel cites:  Smith & Jones, Inc. v. Couch, 401 U.S. 313 (1985)  NOT Smith & Jones, Inc. v. Couch, 401 U.S. 313, 897 S.Ct. 58, 128 L. Ed. 16 (1985)

Federal Cases  U.S. Circuit Courts of Appeal:  Cite to F., F.2d, or F.3d.  Note no space between the F. and the number.  Include the circuit in the cite:  Davis v. Everett, 102 F.2d 24 (9th Cir. 1954).

Federal Cases  U.S. District Courts:  Cite to F. Supp.  Note the space between the F. and the Supp.  Include the district in the cite:  Flanders v. Glissandi, 913 F. Supp. 885 (C.D. Cal. 1996)  You can find the district court abbreviations beginning on page 28 of the Bluebook

State Cases  Cite to the regional reporter – e.g., P.2d, A.2d, S.E.2d, and so forth.  Include the court in the cite:  Hoyt, Inc. v. Irving-Johnson Corp., 425 P.2d 976 (Cal. App. 1976). Kearney v. Lovejoy, 777 P.2d 1024 (Cal. 1993).  You can find the court abbreviations beginning on p. 198 of the Bluebook

Cases Available Only on Lexis  Charlesworth v. Mack, No , 1990 U.S. Dist. LEXIS 20837, at *6 (D. Mass. Dec. 4, 1990)  Case number  Year  Database & number  Paragraph  Court and date of opinion

Quotations  Always give the exact page of a quote (i.e. pinpoint cite), even when paraphrasing:  "The Fourth Amendment protects people, not places." Katz v. United States, 375 U.S. 76, 82 (1965).

Statutes  Federal Statutes:  Cite to U.S.C. or U.S.C.A.  12 U.S.C. § 1986 (West 1996).  12 U.S.C.A. § 1986 (1996).  State Statutes:  The form varies by state.  Cal. Pen. Code § 187 (West 1989).  Neb. Stat. Ann. § (b) (West 1990).  A.R.S. § (2005).  See formats beginning on Bluebook p. 198

Constitutions  Federal:  U.S. Const. amend. XX  U.S. Const. art. I, § 2, cl. 3  State:  Cal. Const. art. XIV

Secondary Sources  Books:  21 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1006 (2d ed. 1987).  Volume number (only if there is more than one volume)  Full name of author(s)  Name of publication (underlined)  Page number or section number where info can be found  Edition, editor (if any), year of publication)

Secondary Sources  Periodicals:  Mary A. Jones, The Best of Trial Briefs, 28 Neb. L. Rev. 102 (2006).  Full name(s) of author(s)  Title of the article (underlined)  Abbreviated name of the publication (can be found on pg. 349 – Table T.13)  Page on which info can be found  Date of publication

Secondary Sources  Encyclopedias:  16 C.J.S. Evidence § 12 (1996).  Dictionaries:  Black's Law Dictionary 826 (7th ed. 1998).

Court Rules  Federal:  Fed. R. Civ. P. 12 (b)(6).  Fed. R. Crim. P. 7(b).  State:  Haw. Fam. Ct. R  N.J. R. Evid  Utah R. Civ. P. 12(b)(6)  See abbreviations beginning on p. 32

Electronic Sources  Douglas Gantenbein, Mad Cows Come Home, Slate, Jan. 5, 2004, tml tml  Dunkin’ Donuts, (last visited Dec. 18, 2003).

Miscellaneous Points  If a cite is in the middle of a sentence, follow it with a comma.  In Yon v. Sambaed, 421 U.S. 119 (1992), the Supreme Court held that...  If a cite is at the end of a sentence, follow it with a period.  This decision was overruled in Ankeny v. Burnside, 102 F.2d 65 (3d Cir. 1942).

Miscellaneous Points  When you have a string cite (several cases cited in a row) separate them with semicolons.  Cite federal cases first, then state cases, and cite higher courts before lower ones.  Several courts have held that the sun rises in the east. Caruthers v. Druid, 414 U.S. 9 (1992); Major v. Minor, 2 F. Supp (S.D.N.Y. 1912); California v. Parker, 421 P.2d 198 (Cal. App. 1978).

Miscellaneous Points  To delete one or more words within a quote, use ellipses.  "The time has come... to talk of many things." Lewis Caroll, Alice in Wonderland 56 (1872).  At the end of a sentence, follow the ellipses by a period.  “Mr. Silverstein’s cells had a concrete bed and desk....” Silverstein v. Federal Bureau of Prisons, 704 F. Supp. 2d 1077, 1081 (D. Colo. 2010)

Miscellaneous Points  Never start a sentence with ellipses.  If you start a quote in the middle of a sentence, or if you substitute letters or words in a sentence, use brackets.  "[M]y troubles seemed so far away." Paul McCartney, Yesterday 2 (1966).  “While housed on Range 13, [the inmate] was removed from his cell only for semi-annual reviews and infrequent haircuts.” Silverstein v. Federal Bureau of Prisons, 704 F. Supp. 2d 1077, 1084 (D. Colo. 2010)

Miscellaneous Points  When one authority is quoting from another, indicate it.  "Citations stink." Brennan v. Marshall, 102 F. Supp. 1234, 1236 (D. Mass. 1984) (quoting Scalia v. Thomas, 313 U.S. 653, 655 (1976)).

For Further Information  See The Bluebook, eighteenth edition as this is only a primer in formatting.