1. TORT LAW
Instructor:
Paralegal Certificate Program Class 1

2. What We Will Cover Types of Torts and Defenses/Immunities
Investigations of Cases
Paralegal Roles

3. Material Responsible For
ALL Material covered in assigned readings
ALL Material covered in assignments
Grading: 25% Participation
25% Assignment
50% Final Exam

4. Welcome to Torts!
What is covered in tort law? Almost every aspect of human endeavors. Torts governs the conduct of people in society and reflects attitudes towards living.

5. WHAT IS A TORT? Chapter 1
A wrongful injury to a person or his or her property for which the victim receives a remedy in the form of damages. Typically, the compensation is monetary in nature.
Tort law involves components of accountability and deterrence in a civil context.
Tort law is largely a result of case law (aka...common law).
Sometimes, tort law is governed by statutes
Statutes are made by the legislature
Often, there are gaps in the statutes which must be filled by the courts.
Tortfeasor – Person who committed the tort – the “doer”

6. HOW DOES TORT LAW COMPARE TO CRIMINAL LAW?
Designed to punish
Proof beyond a reasonable doubt
Societal interests
Criminal Rules of Procedure apply
Tort Law
Designed to compensate victims
Preponderance of the evidence
Protect individual interests
Civil Rules of Procedure apply

7. HOW DOES TORT LAW COMPARE TO CONTRACT LAW?
The main distinction between tort and contract law is that tort is imposed upon the defendant as opposed to a contract which is voluntarily entered into by the parties (offer, acceptance, meeting of the minds and consideration).
Tort laws are enacted for society in general and contractual obligations are specifically related to the contracting parties.

9. QUICK DEFINITIONS
Negligence: The failure of an ordinary, reasonable, and prudent person to exercise due care in a given set of circumstances
-NO Intent required; deals more with “carelessness”
Intentional Torts: Actions intended to injure a person or their property
INTENT required
Strict (Absolute) Liability: Tortfeasor responsible for injuries regardless of intent OR negligence OR fault
Products Liability

10. GENERAL ELEMENTS TO TORTS
1. Duty
2. Breach
3. Causation
4. Damages

11. Public Policy Public policy plays a large role in torts litigation
5 main purposes for tort principles
Protecting people and property from unjust injury by providing legally enforceable rights
Compensation to victims by holding tortfeasor (the “doer”) responsible
Encouraging minimal standards of social conduct among society’s members
Deterring tortious conduct
Allocating losses among different participants in the social arena (may have multiple tortfeasors)

12. IRAC How to analyze cases Issue Rule of law
Application of the rule to the facts
Conclusion

13. ISSUE First, know your facts Then, identify the Issue:
To find the “issue”, must know what area of law you are in.
Torts? Contracts? Criminal?
Torts: Negligence? Strict liability? Intentional Tort?
Conversion? Slander? Trespass? IIED?

14. RULE
The rule IS the law
Get this through a statute (restatement, etc) or case/common law or rule of procedure
May be many “elements” to each rule of law
Look at negligence example: 4 elements- duty, breach, causation and injury

15. APPLICATION
Must apply the rule of law you determined applies in this factual scenario to those facts
This is where you “analyze” the facts to determine if the specific law applies, and a tort was or was not committed

16. CONCLUSION State whether the tort was committed or not
State whether you believe a lawsuit will be successful or unsuccessful
Remember – rarely a guaranty in the law of success
Case law is key - Persuasion is key
Rarely get the same result, even with very “similar” facts – one variation in facts could alter the case result

17. HYPO – pg. 8 in text
Facts: Raj – slipped and fell at Gym Dandy Fitness on water from leaky pipe. Broke his left arm. Another patron saw the water 2 hours earlier
Issue: Type of law? Negligence. Question – would Raj succeed in suing Gym Dandy for negligence?
Rule of Law: Duty, breach, causation, injury/damages (we will detail these more) – knowledge/notice or “constructive knowledge” is key.
Application: Duty – yes, he’s a patron. Breach – yes, danger created by Gym Dandy’s leaky pipes which Gym Dandy had time to correct (visible for 2 hours). Causation – yes, puddle caused by Gym Dandy’s leaky pipes and they had notice (actual or constructive). Injury – yes, broke his left arm.
Conclusion: Gym Dandy was negligent, so Raj should be successful

18. REPEAT IRAC FOR POTENTIAL DEFENSES AS WELL
How to analyze a tort case?
General area of law to specific – as we discussed
Must consider possible defenses to each type of tort
We will discuss defenses in detail
Book hypo on pg. 8-9 discusses assumption of the risk – a defense to certain torts

19. TORTS AND LITIGATION
Tort litigation is consistent with general civil litigation in that the Rules of Civil Procedure govern.
The steps of the litigation process are: complaint, answer, discovery, pretrial procedure, trial and post-trial procedure.
The majority of cases are resolved through alternate dispute resolution (ADR)
Mediation v. Arbitration
Arbitration – binding
Mediation – nonbinding (more persuasive)
-FL – mandatory mediation for most civil cases
Minitrial – a means of ADR by panel of executives from 2 companies with a neutral moderator – for complex disputes
Rent-a-Judge – parties can choose a person to decide their case
Often a retired judge
Parties agree upon the type of formality – binding/nonbinding
Summary Jury Trial – smaller jury – can agree to be bound, not bound; judge present

20. The paralegal’s role in tort investigations . . . Chapter 13
What are some examples of paralegal responsibilities when it comes to tort law cases?

21. Paralegal roles . . . Investigations Ascertaining the facts
Customize the investigation
Witness interviews
Timing of interviews
Questionnaires

22. Locating defendants
Using discovery tools
Internet resources
See sample Client Information Sheet – Appendix A in text (page 439)

23. WHAT DOES AN INVESTIGATION ENTAIL?
Important to gather ALL or as many as possible, of the KEY FACTS of the case
How a law firm gather facts:
Hire investigator
Hire specialists/experts
Use in-house staff – Paralegals, law clerk, etc.
Paralegals need to understand type of case and what facts needed (and not needed) to move forward with case

24. INVESTIGATIONS: ASK CLIENT THESE BASIC QUESTIONS
WHO?
WHAT?
WHEN?
WHERE?
WHY?
HOW?

25. ASCERTAINING FACTS: Tools to ascertain facts
Discovery Process
Police reports (example on pg. 404 of book)
Client provided documents
Medical records
Witness statements
Newspaper articles
Simple Phone Call

26. Internet
Corporate records searches (
Documenting the scene (visual, measurements, evidentiary forms, video, photos)
Newspapers
Television coverage

27. Additional areas to investigate
Employment and lost wages – records and tax returns
Expenses related to the injury
Insurance coverage and other benefits
Previous claims / lawsuits
Previous injuries to the Plaintiff
Criminal Histories (miami-dade clerk of court website)
Driving records

28. INVESTIGATING DIFFERENT TYPES OF TORT CASES
Automobile Accidents: Factors to consider
Mechanical malfunctions
Dangerous Street Conditions
Construction Sites
Medical Negligence Cases
Who was the doctor/nurse, hospital, etc.
What procedure involved?
Did the patient/plaintiff follow treatment properly?
Consent forms?
ETC…

29. REVIEW THE CHAPTERS
Go over and review the practice questions and quizzes at the end of every chapter
Answers: ParalegalSpace.com under ParaStudent Log-in
Go to Torts section, click on the relevant chapter and you will see review questions, answers and quizzes