1. Introduction to Law Week 8

2. Review  Lying to the court  Try to talk out of lying/testifying  Notify that you must disclose to the court  If client does lie, you must disclose

3. 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.

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

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

6. 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)

7. 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

8. 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)

9. 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

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

11. 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

12. IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND JOHN RUNDLETT, INC - Plaintiff v DONALD POSNER - Defendant * * * * * CASE NO. 24-C-02-00380* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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.

18. 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

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

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

22. 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.

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

24. 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.

25. 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.

27. 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

28. 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.

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

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

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

32. Evidence  Testimonial  Direct  Indirect or Circumstantial

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

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

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

36. Hypothetical  Ruby is a citizen of Alabama  Roy, the driver of the truck, is also a citizen of Alabama.  United Construction, however, is a California corporation.  Ruby has approximately $100,000 in damages so far, and anticipates another $50,000 in the future

37. Hypothetical  What would Ruby’s claims be?  Is she trying to enforce a right under a federal law?  How much would her damages be?  Is there diversity of citizenship?

38. Hypothetical  Would you file Ruby’s case in state or federal court?  In which state?

39. Hypotheticals  Peter, a resident of Kansas, is suing Cheryl, a resident of California, for damages arising from a traffic accident that occurred in Maryland. He is asking for $250,000 in damages. Where would the suit be filed?

40. Hypotheticals  Mike, a resident of Idaho, is suing an Idaho state highway patrolman for violation of his federal constitutional rights. He is suing under the federal civil rights act (known as Section 1983). He is asking for $25,000 in damages. Where would the suit be filed?

41. Hypotheticals  Maribell, a resident of Ohio, is suing Suzanne, a Colorado resident, for breach of contract. She is requesting $50,000 damages. Where would the suit be filed?

42. Hypotheticals  Zach, a Florida resident, is suing Dr. Payne, also a Florida resident, for damages arising from malpractice. He is asking for $1,000,000 in damages. Where would the suit be filed?