WHERE WE ARE Complaint Answer 12(b) Motions Amended Pleadings Pre-Trial Trial & Post-Trial Appeal.

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Presentation transcript:

WHERE WE ARE Complaint Answer 12(b) Motions Amended Pleadings Pre-Trial Trial & Post-Trial Appeal

PLEADING The Complaint Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Rule 8(a)(2), (c) Element v. Aff. Def Burdens of Pleading Rule 9: Special Pldg Req’ts?

BURDENS OF PROOF Plding, Production & Persuasion Burden of Pleading The Litigation Burdens Burden of Production Burden of Persuasion

BURDENS And the Adversary System Adversary System Party driven Parties initiate action Neutral decisionmaker What if decisionmaker can’t decide? Pleading Summary judgment Trial

BURDENS & ELEMENTS Mari & Erin’s Accident Mari’s Complaint Driving on 15 th, 11/22 Accident w/ Erin $20k damages hurt back The Tort Claim Negligence Duty Breach Causation Damages

BURDENS & ELEMENTS What happens if Mari doesn’t satisfy burden of pleading? How do we decide what’s part of Mari’s claim? what’s Erin’s affirmative defense?

ALLOCATING ELEMENTS Statutory Claims Persons shall be liable for injuries to others caused by failure to take reasonable care: provided that no person shall be liable if the plaintiff’s own negligence was the primary cause of the injury

ALLOCATING ELEMENTS Statutory Claims A person who is not himself negligent but who is injured by the negligence of another has a cause of action against the injurer

ALLOCATING ELEMENTS Statutory Claims Who has burden? pleading contributory negligence Why?

ALLOCATING ELEMENTS Statutory Claims Protocols Plain meaning Language Structure Legislative intent Precedent, purpose, policy

ALLOCATING ELEMENTS Common Law Claims Gomez v. Toledo, p. 446 What aspect of claim is court allocating? What criterion does court use? Effect of later case law? Limiting plaintiff to objective proof Neutral process?

ALLOCATING ELEMENTS Examples p. 452, Note 6 Adams, a lawyer, sues Davis, his cousin for professional services. Who alleges gift (or not)?

ALLOCATING ELEMENTS Examples p. 452, Note 6 Bellows, a disk jocky, sue WFCP for failure to pay overtime under FLSA. Who alleges professional Ee (or not)?

TAKEAWAYS Three separate burdens Pleading complaint answer Production Motion for summary judgment Plaintiff’s case-in-chief at trial Defendant’s case-in-chief Proof Where do things stand at the end of trial

TAKEAWAYS Allocating elements to Pl or Def Policy Access to information, proof Who should win in close cases Do we like this type of claim?

PLEADING The Complaint Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Element v. Aff. Def Burdens of Pleading Rule 9: Special Pldg Req’ts?