Paralegal Textbook Summary 1/2002
Chp. 1 Introduction to Litigation
Law comes from constitutions, case law, and statutes.
An injunction is a subset of equitable relief. Equitable relief is sought if compensatory damages are not enough. Injunctions are to stop someone from doing something. Declatory relief regards the rights and obligations of parties.
Civil litigation is the resolution of disputes between private parties through the court system.
The structure of the court system.
[What are statutes pg. 5, What is a complaint, summons, common law pg. 7]
The 50 states are divided into 11 districts.
Affirm, affirm with modification, reverse and remand.
If the Sup.
Affirm with modification; the Supreme Court rules the same way as the trial court but modifies some element of the decision.
The aggrieved party is the plaintiff. In the complaint the plaintiff must state the basis of the claim against the defendant so the defendant is appraised of the action against him. Summons and the complaint are together. The summons commands the defendant to appear in court.
The defendant must file a response to the complaint or he will be in default. This response is called an “answer.” Once this is done, the “pleading” stage of the process is done.
The next stage is the discovery and motion stage. If there is a defect in the complaint (a procedural rule that wasn’t followed) a motion may be made (filed).
Discovery and motion continued: Motions to dismiss the cases based on: improper jurisdiction (improper venue), insufficiency of process, improper subject matter jurisdiction, etc.
Motion for court to render a judgement without trial or to compel one party to hand over information it hasn’t handed over.
[What is default, pg. 11]
The final stage is trial and post-trial proceedings.
“The most common legal remedy is money damages.”
Compensatory damages are to compensate the injured party. Punitive damages go further and are allowed only when the defendant’s conduct is willful or malicious. These may be in addition to compensatory damages.
One of the primary ethical guidelines involves confidentiality. The communication between an attorney and client is privileged. Conflicts of interest should also be considered.
Key Terms
Chp. 2 Informal Fact Gathering and Investigation
Not a thorough summary.
“Cause of action” “Theory of recovery that entitles the plaintiff to recover against the defendant.” Enough facts must be gathered to state in the complaint a cause of action, sometimes called a “claim for relief.”
An “affirmative defense” is a defense pled by the defendant in the answer that, if proven, denies recovery to the plaintiff.
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Litigation chart.
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“Negligence” – “A cause of action in which the plaintiff must allege a duty of care by one party to another that was breached and that was the cause of plaintiff’s damages.
Must allege four elements: A duty of care owed by one party to another. A breach of that duty of care. Causation (defendant’s actions were the actual and proximate (probable) cause of plaintiff’s injuries.) Damages.
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“Breach of contract” A cause of action that alleges a contract was breached by the defendant, causing damages to the plaintiff. Also, plaintiff must allege that he performed under the contract or is excused from performing.
Must allege four elements: An executed contract. Plaintiff’s performance, or excuse for nonperformance. Defendant’s breach. Plaintiff’s damages.
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Facts come from five basic sources: The client. Exhibits. Witnesses. Experts. The opposing party.
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Counterclaim - Claim in the form of a pleading brought by the defendant against the plaintiff as part of the same lawsuit. Cases are legion, where a plaintiff has filed an action only to be hit with a much larger, previously dormant, counterclaim.
All states have “statutes of limitation” that limit the time period in which an action may be brought against a defendant,
Exhibits-Tangible items of evidence presented at trial. Exhibits include the scene, physical evidence, documents, and records. You need to acquire these exhibits, get copies of them, or protect them from being lost or altered.
Physical evidence – Tangible personal property that may be used as trial exhibits. It may include: vehicles, machinery, consumer products, etc.
Establishing the “chain of custody” – that is, who has had custody of the evidence at all times.
Evidence is frequently in the possession of a “third party” – that is, someone who is not a party to the lawsuit. Examples would be the police department, repair shops, etc.
Subpoena – a written court order compelling the third party to produce the evidence.
“Prima facie case” – A case in which each element in the plaintiff’s claim can be proven.
Impeachment – discrediting the witness so the witness will not be believed at trial (using information to….)
Key Terms
Chp. 3 Case Evaluation and Strategy
Contingency fee agreement- an agreement between the lawyer and client whereby the lawyer will receive as compensation for the lawyers fee a certain percentage in the recovery ultimately obtained by the client. Must be in writing, a copy of which is signed by the client, and returned to the lawyer.
Hourly rate, fixed flat fee, or retainer fee
Attorney’s lien
[What are costs, p. 69]
The client should tell such persons that he is represented by a lawyer, and he should notify you or the lawyers of all such attempts. The client should also understand he is not required to talk to anyone unless required through the formal discovery process; he should direct all requests for information to the lawyer. He should not discuss anything without first discussing it with the lawyer. He should be told to save and collect all relevant records, documents, bills, checks and paperwork.
Litigation goes in spurts; a period of activity is often followed by weeks of inactivity.
“Theory of the case” The lawyers position on, and approach to, all the undisputed and disputed evidence that will be presented at the trial.
“Dispositive motions” are motions heard by the court at any stage of the litigation before trial and have the effect of terminating the lawsuit without trial. An example, motion for summary judgement.
Settlement – A resolution by the parties of their dispute without the necessity of trial.
Key Terms
Chp. 4 Parties and Jurisdiction
B. Parties to the Action
The “parties to an action” may be private individuals as well as partnerships, unincorporated associations, sole proprietorships, corporations, and public bodies.
It is sometimes difficult to comprehend how legal entities may be parties.
For example, a “partnership” is made up of two or more individuals who carry on a business and divide any profit or loss of the business. Dorothy can bring a lawsuit against Miller & James without naming either Matthew Miller or Kathleen James. This is because the partnership has an existence separate from the existence of its partners.
With partnerships, “sole proprietorships” (entities consisting of just one person) and unincorporated associations it is good practice, in addition to naming the entity as a party, to also name the individual members of if known. In this way, any judgement will be binding on the individual members as well as on the entity.
C. Joinder of Parties and Claims
1. Real party in interest. The party who, under applicable substantive law, has the right that the lawsuit seeks to enforce. Rule 17(a) of the Federal Rules of Civil Procedure requires that an action be brought “in the name of the real party in interest.” The purpose of the Rule is to ensure that the parties with the real interest are the ones actually prosecuting cases. Rule 17(a) also specifies exceptions to the general rule by providing that an “executor, administrator, guardian may sue in his own name.
Assignment is a claim that has been transferred to another person or entity, the assignee is the real party in interest…
Subrogation occurs when one party becomes obligated to pay for the loss sustained by another.
2. Capacity to sue. A lawsuit must be brought by and against parties that have a legal capacity to sue or defend the action. This ensures that any judgment that ultimately is obtained will be binding on the parties. Generally, individuals and entities have a right to sue or defend an action. This includes not only natural persons but corporations, partnerships, and unincorporated associations.
3. Required joinder of parties-the bringing together of different parties in one lawsuit. Joinder of parties is governed by Rules 19 and 20 of the Federal Rules of Civil Procedure. The joinder rules address a basic question: As plaintiff, what parties must, should, or may be brought into the lawsuit so that the claims can be properly decided? What parties must, or should be, joined is governed by Rule 19; what parties may be brought in is governed by Rule 20. Needless to say, these esoteric distinctions have been the source of much debate and litigation over the years.
[More material on joinder could be added here.]
Intervention-The ability of a person not a party to the lawsuit to become a party to the lawsuit when such person has an interest in the outcome of the lawsuit.
4. Permissive joinder of parties-A joinder of parties that is allowed—but not required—by the court.
5. Special pleading rules.
6. Joinder of claims-is the bringing together in one lawsuit the different claims that a party may have against another party. It is governed by Rule 18 of the Federal Rules of Civil Procedure and is always permissive. Each party can bring as many as many claims as the party has against every other party. These include both present and contingent claims.
The law board notes put Personal Jurisdiction before Subject Matter jurisdiction.
D. Subject Matter Jurisdiction
Subject matter jurisdiction-the power of a court to hear particular matters. Federal district courts are courts of limited jurisdiction and cannot hear a case unless it fall within their power..
1. Is there a case or controversy?
2. Does the case fall under federal question jurisdiction, either general or specific?
3. If the claim does not have federal question jurisdiction, can you sue based on diversity jurisdiction?
4. Does ancillary jurisdiction apply?
5. Has the case already been filed in state court, so that filing in federal court will require removal?
1. Case or controversy – the court must have an actual “case or controversy” that is ripe for adjudication.
2. Federal question jurisdiction
- “Arising under” [expand here]
- Specific grants of jurisdiction
Admiralty
Bankruptcy
Interstate Commerce Commission/commerce
Commerce/Antitrust
Patent, Copyright, Trademark, unfair competition
Postal
Internal Revenue Service/customs
Miscellaneous
Finally, there are numerous statutory provisions outside of Title 28 that also confer jurisdiction on federal district courts. They are: Jones Act; Federal Employer’s Liability Act; Securities Act; Civil Rights Act.
c. Pendent jurisdiction-jurisdiction by
the federal court over nonfederal claims when both the federal and nonfederal
claims derive from a common set of facts.
[could add more material
here] Sup. Ct. United Mine Workers
of America v. Gibb, 383
d. The United
States as a party. The
A plaintiff wishing to invoke the court’s jurisdiction must always affirmatively plead a proper jurisdictional basis.
3. Diversity jurisdiction-the power of the federal court to hear controversies between citizens of different states. 28 USC $1332 Title 28 Three requirements: Citizenship, complete diversity, jurisdictional amount.
- Citizenship requirement. Section 1332 is based on citizenship, an imprecise term. The citizenship of natural person is the state of permanent residence (called domicile), and no person can have more than one domicile at a time. For a corporation, $1332(a) provides that its citizenship is both the state where it is incorporated and the state where it has its principal place of business, which is usually defined as where a majority of its business is conducted or, if that is unclear, where the corporate headquarters is located.
- Complete diversity requirement-the plaintiff must have a different state citizenship from each defendant in order for the federal courts to have jurisdiction.
- Jurisdictional amount requirement- Section 1332(a) requires that the “matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” Costs include attorney’s fees only if a contract or statue permits them.
Costs include attorney’s fees only if a contract or statute permits them.
4. Ancillary jurisdiction-the authority of
a federal court to hear certain types of pleadings involving claims that do not
have an independent basis for federal jurisdiction. Competing interests: on one hand, federal
jurisdiction is ordinarily interpreted narrowly. On the other hand, it makes sense, for the
sake of judicial economy and consistency, to try all related claims at one
time. The issue of ancillary
jurisdiction arises whenever a plaintiff has a proper claim and another party
wished to file a counterclaim, cross-claim, or third-party complaint, but the
latter claim does not have an independent jurisdictional basis.
[More material could be added here]
Sup.
5. Removal jurisdiction. Removal is the procedure in which the defendant may transfer a case, already filed in a state court, to the federal district court for the same district in which the state action is pending. The first requirement, is that the case already has been filed in state court. The second requirement is that the state court in which the action is pending, must have both subject matter jurisdiction over the action and personal jurisdiction. There are three basic grounds for removal: diversity, federal question, and special removals status.
E. Personal jurisdiction
Personal jurisdiction-the power of a court to bring a party before it and to make a decision binding on such a person. Jurisdiction to adjudicate can be in personam, in rem, or quasi in rem. Personal jurisdiction refers to the ability of a court to exercise power over a particular defendant or item of property.
In personam jurisdiction refers to the court’s power to personally bind the parties to the court’s judgment. An in rem action is one that involves property (the res) located within the court’s jurisdiction. With in rem jurisdiction, the court decides rights in the property. Finally, quasi in rem is a type of jurisdiction that allows a plaintiff to use property of the defendant to satisfy a claim so long as the property is in the state.
Issues surrounding personal jurisdiction involve two separate questions: Can the defendant constitutionally be subject to the court’s jurisdiction? Was service of process on the defendant proper? The first question involves the due process limitations on personal jurisdiction, and the second involves the service-of-process requirements of Rule 4 of the Federal Rules of Civil Procedure.
1. Due Process Requirements
Due process is a constitutional doctrine requiring fairness in judicial proceedings.
When a defendant is a resident of the forum state—that is, the state in which the action is brought—due process problems do not arise. When a nonresident defendant, however, is sued in the forum state and does not consent to the jurisdiction of the court, due process problems may…
The leading constitutional cases are International Shoe v. State of Washington and World-Wide Volkswagen Corp. v. Woodson 444 US 286 (1980). Other significant Sup. Ct. cases are: Burger King v. Rudzewicz 471 US 462 (1985), and Asahi Metal Industry v. Superior Court 480 US 102 (1987).
In International Shoe, the court held that where a
corporation’s “minimum contacts” in the forum state where such that being
forced to defend a suit in that state would not offend “traditional notions of
fair play and substantial justice,” jurisdiction was proper. 326
2. Service-of-process requirements.
Service of process refers to the actual delivery of the legal document (usually the initial summons and complaint) to the defendant.
Long-arm statutes-State laws that enable a court to exercise jurisdiction over a defendant who is outside the geographical boundaries of the court.
First, service may be made by personally delivering the document to the defendant. This is obviously the best method of service. Second, service may be made leaving the legal documents with an adult at either the residence or place of business, and thereafter mailing a copy of the documents to the address where the document was left. A third method is by notice and acknowledgment of receipt. This method, recognized in some states, allows the plaintiff to send the defendant the summons and complaint in the mail along with a form notice and acknowledgment of receipt. A final method that is commonly recognized is service of process, by publication in a newspaper of general circulation.
F. Federal versus State Court
G. Venue
A lawsuit must be filed in a proper place. Where a lawsuit can be filed is governed by venue statutes. Venue, is the geographic district where a lawsuit may properly be heard. Venue is the designation of the proper district in which to bring an action. Venue will depend on….
[more material could be added here]
1. Determining venue
The general venue statute for federal district courts is 28 USC $1391, which has two basic provisions. Under $1391(a), if jurisdiction is based solely on diversity, venue is proper in the district (1) where “any defendant resides, if all defendants reside in the same,” or (2) where a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property involved in the action is located, or (3) where “any defendant is subject to personal jurisdiction” at the time the action is commenced. Under $1391(b), if jurisdiction is based other than solely on diversity, venue is proper on the same terms as parts (1) and (2) of $1391(a).
2. Change of Venue
Improper venue, and inconvenient venue
H. Choice of Court Based on Choice of Law
How do you decide in which court the complaint should be filed? On the practical side, convenience and cost to the plaintiff, the plaintiff’s lawyer, and witnesses will frequently dominate the decision. On the legal side, choice-of-law decisions may be critical because applicable substantive law may differ for….
Furthermore, the subpoena power of a district court is generally limited to its geographical boundaries; thus, if uncooperative witnesses are out of state.. Finally, factors such as the choice of judges, the desirability of prospective jury pools, and length of time until trial should all be considered.
Chapter Summary
Key Terms
Chp. 5 Pretrial Litigation
Pleadings refer to all documents filed by the plaintiff to initiate a lawsuit and all documents filed by the defendant in response to the lawsuit.
A. Introduction
Pleadings. Formal written documents by the parties to the litigation to either start or respond to the litigation. Modern rules limit the purpose of pleadings to notice of claims and defenses.
Federal pleadings rules are principally contained in the Federal Rules of Civil procedure. Under Rule 83 district courts can create local rules; most have done so. These usually control paper, format, and binding. Bankruptcy and copyright courts may have special procedures. Good pleading practice is a combination of two things: a solid litigation plan and technically precise drafting. Pleadings that are technically precise will avoid attacks by motions and eliminate the need to file amended pleadings to cure defects.
B. General Pleading Requirements.
The Federal Rules of Civil Procedure had made simplicity and limited purpose the touchstones of the pleadings stage of the litigation process. Under Rule 7(a) the only basic pleadings allowed in civil actions are: complaints, answers, and replies.
1. General “notice” requirements for claims
Rule 8(a) permits four forms of claims:
Complaint; counterclaim;
cross-claim; third-party complaint
All forms are actually complaints. Rule 8 requires only a “short and plain statement of the claim showing the pleader is entitled to relief.” This commonly is referred to as notice pleading.
Under notice pleading, the only requirement is that the pleading contain enough information to fairly notify the opposing party of the basis of the claim. It does not require an elaborate narration of facts; nor does it require that a legal theory of recovery of relief be set forth. The only requirement is a “short and plain statement” that give fair notice of your claims to the opposing side. Forms 2 through 23 in the Appendix of Forms to the Federal Rules of Civil Procedure contain a variety of legally sufficient pleadings. The safest pleading approach is to use the forms and modify them to meet the specific requirements of your case. The standard drafting technique is to state just enough facts to identify the events or transactions that the claim is based on and the legal theory of recovery. The techniques are detailed in section C2 of this book.
2. Alternative and inconsistent pleadings.
3. Format requirements.
b. Caption. Every pleading must have a caption containing three elements. The file numbers (also called the case number); names of the parties and identification of the side of the action for each; Court in which the case is being filed.
a. File Number. The file number is the case number that is stamped on the complaint and it must appear on all successive pleadings.
b. Parties to the action. The complaint must list all the parties to the action. Subsequent pleadings need only list the first plaintiff and first defendant, with an appropriate reference to additional parties such as “et al.”
Make sure your caption correctly states the proper name and legal description of each party. Examples of common designations include: John Smith,
Sharon Jones, as guardian of the Estate of Robert Jones, a minor [expand this section!]
Where a party is being sued both individually and in a representative capacity, it should be spelled out.
Sometimes it is impossible to identify a proper party by name before filing. In these circumstances you can designate a party as “John Doe.” Doe’d in.
[notice pleading]
c. Designation. Each pleading should be labeled to show what type it is, such as a complaint, counterclaim, cross claim, third-party complaint, answer, or replay. It is useful to show whom the pleading is directed. Sample designations are shown in Exhibit 5.2 of this book.
d. Signed pleadings. Every pleading or other court paper must be signed by one of the party’s lawyers. The pleading must contain the lawyer’s address and, in practice, a telephone number. Under the Federal Rules of Civil Procedure, pleadings are not “verified.” A verified pleading is one signed by the party and notarized. A verified pleading requires the party to state that the facts in the pleading are true and correct to the best of the party’s information and belief.
4. Rule 11. As a paralegal you must be mindful of Rule 11. ….that the lawyer has read the pleading and that to the best of the lawyer’s knowledge, information, and belief the pleading is well grounded in fact and law… The lawyer’s obligations under Rule 11 are significant. A lawyer must have made a “reasonable inquiry” into the law and facts and concluded that there is a sound basis in law and fact for the pleading. If a lawyer simply relies on the client’s representation of facts where a reasonable inquiry would show that the facts are otherwise, the lawyer’s Rule 11 obligations have not been met. Thus if your, the paralegal, are charged with the responsibility of drafting the initial pleading, you must also make the necessary “reasonable inquiry” and advise the lawyer of all facts that should be considered. Under Rule 11 the court can impose sanctions for violations of the requirement.
The message of Rule 11 should be abundantly clear: Gone are the days when a lawyer could, with relatively little preparation, file an action containing a variety of claims against a multitude of defendants and later simply dismiss those claims.
5. Service and filing.
Pleadings and other court papers must be served on all parties in one of the permitted ways. Service of pleadings other than a complaint should be made on the party’s lawyer. This is customarily done either by personal delivery or mail.
Unless otherwise ordered, all pleadings and other court paper that are actually served on parties must be filed with the court clerk either before service or within a reasonable time after service. The usual practice is to have the original and appropriate number of copies of the pleading or other court paper taken to the clerk of the court for filing and have another copy stamped “filed” and dated for your law firm’s files. This is usually done the same day papers are being served…. The usual practice is to have a certificate or affidavit of service attached to the end of the pleading that shows when and how service was made and includes….
C. Complaints
The complaint is the document filed by the aggrieved party to commence litigation.
The complaint is the plaintiff’s initial pleading, which, when filed, starts the litigation. There are three essential components of every complaint required by Rule 8(a):
1. Statement showing subject matter jurisdiction
2. Statement of claims showing the plaintiff is entitled to relief
3. Statement of relief requested.
In addition, the complaint must show a jury demand, if a jury will be demanded, and it must be filed and served on each opposing party. A sample, complaint appears in the Litigation File at the end of this book.
1. Subject matter Jurisdiction
Jurisdiction must be alleged in the complaint, and it must be demonstrated . You should be careful to state the jurisdiction grounds specifically. The jurisdictional allegation is usually the first part of a complaint and is customarily labeled as such. There are two principal ways that subject matter jurisdiction can be acquired in federal court.
a. Federal question jurisdiction
Federal jurisdiction can be based on a federal statute, constitutional provision, or treaty. The complaint should cite the particular statute, constitutional provision….. As always, the safest pleading approach is to track the language of the Appendix of Forms to the Federal Rules of Civil Procedure.
b. Diversity Jurisdiction
Federal jurisdiction can also be based on diversity of citizenship. The essential requirement is citizenship, not residence. An individual has only one state of citizenship. A corporation, for jurisdictional purposes, is deemed a citizen of both the state where incorporated and the state where it has its principal place of business.
2. Statement of claims
Rule 8(a) merely requires that a pleading contain a “short and plain statement of the claim showing the pleader is entitled to relief.” Rule 8(a) states that each allegation in the pleading shall be “simple, concise, and direct.” In short, technical requirements have been discarded, the sole requirements now being that enough be pleaded that the other party has fair notice of the claims presented sufficient to defend itself. Since the requirements for the statement of claims are minimal, great latitude in drafting exists.
a.
Use plain English.
b. Keep it simple.
Pleadings are not the place to disclose the detailed facts of the client’s claims, nor the place to elaborate on theories of recovery. The Rules require only a “short and plain statement.” One need only allege enough to put the opposing party on fair notice of what he claims against him are. On the other hand, there are times when making specific factual allegations can be effective because they are harder for the defendant to deny. In addition, specific allegations—each set out in a separate paragraph—can support subsequent specific discovery requests. The official Appendix of Forms gives excellent examples of complaints. The safest approach in drafting pleadings is to modify these forms to the claims of the case whenever practical. Examples of claims are shown in Exhibits 5.8 and 5.9.
The preference for using simple English also should apply to naming parties. Use names rather than the pleading’s designations (e.g., plaintiff, defendant, cross-claimant, or third-party defendant) or other legal designations. Using names keeps things clear. A common practice is to set out the full name of each party the first time it is used, then show in parentheses how you will refer to that party from now on:
c. Plead “special matters” with particularity
Rule 9 is an exception to the liberal “notice pleading” approach of the Federal Rules. Under Rule 9, certain allegations must be pled “specifically” and “with particularity.” These allegations include fraud, mistake, and special damages.
d. Use separate paragraphs.
The Rules require a separate paragraph for a “single set of circumstances” Probably better to use paragraphs liberally.
[Example can be inserted here]
e. Use separate counts. Count is each separate cause of action alleged in a complaint. Although not required by the Federal Rules of Civil Procedure, it is customary to state each claim involving a separate theory of recovery in a separate count, even if all are based on the same general occurrence or transaction. This has the advantage of setting out clearly each legal theory that forms a basis for recovery.
Since setting out different theories or recovery in different counts usually requires restating some allegations, it is efficient and proper under Rule 10(c) to incorporate into the later count by reference those allegations made in earlier counts, as shown I the following example.
[It would be possible to insert more material here]
f. Use exhibits.
Rule 10(c) permits attaching exhibits to pleadings. This is most commonly done in contract cases, where the contract that forms the basis for the claim is attached to the complaint.
3. Prayer for relief
Rule 8(a) requires a pleading to make a “demand for judgement for the relief to which [the pleader] deems himself entitled. This is called the prayer for relief. The Rule makes no distinction between legal and equitable relief.
Care in pleading relief is important for two reasons. First, since under federal law the nature of the remedy sought is often controlling on the question of the right to a jury trial, the demand for relief should be drafted to ensure the right to a jury trial, or to avoid it, as the case may be. Second, where a defendant fails to respond to the complaint and a default judgment is requested, the method under which default can be obtained is affected by the type of relief sought, and the relief granted is limited to that requested in the pleadings. Since default is always a possibility, you should always draft the prayer carefully.
The prayer for relief appears at the end of the body of the complaint. It specifies the types of relief sought, including legal and equitable remedies, interest, costs, attorney’s fees, and any specific damages, with sufficient detail. An example of a prayer for relief is shown in Exhibit .511
4. Jury Demand
5. Filing and service of summons
Under Rule 3, a federal action is commenced when the complaint is filed with the clerk of the court. This is significant for statute of limitations purposes. In federal question cases, the filing of the complaint “tolls”---that is, stops—the statue of limitations. State law must be complied with fully before the statue of limitations is tolled.
After the action is commenced, the complaint must be served on each defendant. Under Rule 4, detailed service-of-summons rules control how the complaint and summons are to be served on defendants. There are several steps involved
a. When the complaint is filed, the clerk is directed under Rule 4(b) to issue the summons. A summons is the notice to the defendant that commands that the defendant appear and defend against the action within a certain period of time or else judgment may be against the defendant. In practice, the summons form, which is available from the clerk’s office, usually filled out in advance and take to the clerk’s office when the complaint is filed. To assist in service it is useful to list on the back of the form where and when service on each defendant can most likely be made. Make sure you have enough copies of the complaint and summons for the clerk’s administrative needs, for service on each defendant, and for your law firm’s files.
b. Summons content
Rule 4(a) controls the summons content. Exhibit 5.12 contains the standard elements of a summons. Most summons include:
Defendant’s name and address
Plaintiff’s attorney and attorney’s address
Request for answer
Time limit on answer
Statement of consequences of nonreply
Another example of a summons appears in the litigation File at the end of this book. All courts have summons forms. To ensure that you have included everything, it is a safer practice to simply pick up a copy of a blank summons form from the clerk of the court than write your own. A sample summons form is shown in Exhibit 5.13.
c. Persons who may serve the summons.
As a general rule,
the complaint and summons can be served by any person who is not a party and is
at least 18 years old. Service by the
d. Methods of service.
How service of summons may be made depends on the entity being served and is governed by Rule 4(e)-(k)
i. First, service can be made by personally giving the individual a copy of the complaint and summons. Second, it can be made by leaving a copy of the complaint and summons “at his dwelling house or usual place of abode.” Fourth, where the individual is out of state, service may be made on any defendant using either the law of the forum state…. These are the long-arm statutes,….
iii. Corporations, Partnerships, and Associations
First, service can be made by personal delivery to an office, manager, or general agent. Second, service can be made to agent authorized to receive service of process. Third, when the corporation is out of state, service can be made under any federal statute providing…the state’s long-arm statute.
iv. Officers and agencies of the
Rule 4(I) details the requirements for service on federal, state, and local governments as well as on federal agencies. The requirements are technical, and the Rule should always be reviewed before attempting service.
e. Waiver of service. Rule 4(d) allows the plaintiff to request that the defendant waive formal service of summons.
f. Territorial limits of service. The geographic scope of service is governed by Rule 4. There are four basic precepts.
i. The 100-Mile “Bulge Rule. The 100-mile “bulge” provision provides for some service within 100 miles of the place where the original action commenced, even if state lines are crossed. However, this rule applies only to parties brought in as third-party defendants under Rule 14
ii. State Long-Arm Statutes. As discussed previously, state long-arm statutes permit service on a party outside the state in which the district court sits by service on a party in a state where the party has sufficient minimum contacts.
iii. Federal Statute or Court Order. Whenever a federal statute or court order authorizes service on a party outside the state in which the district court sits, service may be made in accordance with the statute or order.
g. Timeliness of service. Under Rule 4(m) of the Federal Rules of Civil Procedure, service of the complaint and summons must be carried out within 120 days after filing of the complaint.
h. Proof of service. Rule 4(1) requires that the person serving process establish proof of service promptly. Proof must be in affidavit form. In practice, the proof of service affidavit is usually found on the summons form. The person serving the summons and complaint should fill in the proof of service affidavit.
i. Informal service. Sometimes you will know the lawyer who will represent the defendant in the lawsuit. A good practice is for you or the lawyer to call the defendant’s lawyer and let her know that your client is about to file suit. If you think the defendant will try to avoid service of process, serve the defendant formally under Rule 4. Otherwise, informal service can be a convenient approach.
D. Rule 12 Responses
When a complaint and summons have been served on a defendant, he can respond in two basic ways. First, he can answer the complaint. Ordinarily, the defendant must answer within 20 days of service. However, under Rule 4(d)(3), then he has 60 days from the date of service.
Second, before filing an answer the defendant can make any of three motions attacking claimed defects in the complaint. These are: motion to strike; motion for a more definite statement; motion to dismiss.
All of these are governed by Rule 12. Rule 12 motions. Must reply within 20 days. The motions should also include a memorandum of law. The memorandum of law sets forth the background facts and legal authorities to support your side’s position.
1. Motion to strike. If the complaint contains “any redundant, immaterial, impertinent or scandalous matter,” it can be stricken upon motion to strike. Motion to strike is a motion to eliminate certain allegations from a complaint.
2. Motion for a more definite statement. If the complaint is “so vague or ambiguous” that the defendant cannot respond to it, the defendant may make a motion for a more definite statement. Such motions are disfavored and infrequently granted.
3. Motion to dismiss under Rule 12(b). Under 12(b), the defendant may raise certain defenses either in the answer or by a motion to dismiss. This is the predominant motion for attacking the complaint, and it has several important characteristics.
a. The one motion statement. In other words, you must consolidate all available Rule 12(b) defenses into one motion
b. Rule 12(b) defenses. The following defenses may be raised in a motion to dismiss:
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process
5. Insufficiency of service of process
6. and 7.
c. Waiver
d. Practice approach. The history of Rule 12(b) shows that motions to dismiss rarely result in the final disposition of a lawsuit.
E. Answers
When the plaintiff’s complaint has been served, every defendant must respond, with a Rule 12 motion, or by filing an answer to the complaint. The answer usually admits or denies the various allegations in the complaint and usually asserts a number of defenses. Answer is a response by the defendant to the plaintiff’s complaint.
1. Timing. As a general rule, the defendant must serve an answer within 20 days of service of complaints.
2. General requirements.
An answer shall “state in short and plain terms” the defenses asserted. It must either admit or deny the allegations, or state that the defendant is without knowledge or information sufficient to form a belief as to their truth. Under Rule 8(c), affirmative defenses….. The defenses may be set out alternatively, inconsistently, or hypothetically.
Failing to answer will constitute
an admission of all facts alleged in the complaint. Answering with a simple “admit,” “deny,” or
“no knowledge or belief” is usually sufficient.
The answer must be organized in paragraphs and by counts, setting out separate defenses in separate counts. When there is only one defendant, the answer is simply titled “ANSWER.” If there are multiple defendants, however, Finally, the answer, like very pleading, must be signed by the lawyer.
The answer, therefore, may have
three parts. Responses of the
complaint’s allegations; Affirmative
defenses; Rule 12(b) defenses.
3. Responses
The answer may either admit or deny the allegations, or state that the party is without knowledge or information sufficient to form a belief as their truth. The format, whether informally brief or more formal is largely a matter of local custom, although the trend is toward brief responses.
If the response is “no knowledge or belief,” this must be based on good faith. For example, if the complaint alleges that the defendant corporation had “gross receipts during 1999 in the amount of $6,450,000,” the defendant’s lawyer cannot answer “no knowledge or belief” since the lawyer can easily find out if the allegation is true or not.
The answer may admit only part of an allegation and deny the remainder. Each paragraph of the complaint must be responded to individually. The modern trend is toward brevity and conciseness. Denying all allegations not specifically admitted is a safe practice. This avoids the possibility of “silence” in the answer being interpreted as an admission.
4. Rule 12(b) defenses
5. Affirmative defenses
Affirmative defense – Defense plead by the defendant in the answer that, if proven, denies recovery to the plaintiff. An affirmative defense raises new matters not otherwise in issue by defendant’s denial of an allegation in the complaint. Even if plaintiff proves the allegations of her complaint, an affirmative defense entitles the defendant to have judgment in his favor.
[Check
this against the Nutshell book on pre-trial litigation]
Rule 8(c) set forth what it characterizes as affirmative defenses.
Accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statue of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
Example One Plaintiff’s cause of action set out in the complaint did not occur within two years before commencement of this action and is thus barred by the applicable statute of limitations.
Example Two Plaintiff’s cause of action is barred by defendant’s discharge in bankruptcy.
6. Practice Approach
First, you and the lawyer should respond to every allegation in every paragraph of every count of the complaint, since any allegation not responded to is deemed admitted. A safe practice is to deny, at the end of every count, all allegations not specifically admitted or otherwise answered. Clear simple language is critical here.
On the other hand, admitting a fact may have the effect of preventing further discovery of information that would prove the fact. When that information contains harmful or embarrassing facts, it may make sense to simply admit the allegation in your answer. Second, set out all Rule 12(b) defenses and affirmative defenses that you have. There is not penalty for raising inconsistent, hypothetical, or alternative defenses. If you are in doubt whether a defense is considered an affirmative defense, the safer course is to raise it in the answer.
F. Counterclaims
Counterclaim – Claim in the form of a pleading brought by the defendant against the plaintiff as part of the same lawsuit. A defendant can also counterclaim. This is a pleading brought against a plaintiff. The counterclaim is functionally identical to a complaint. The plaintiff must respond to the counterclaim, either with Rule 12 motions or a reply, within the usual time limits. Counterclaims are either compulsory or permissive, and substantially different rules apply to each.
1. Compulsory counterclaims
Compulsory counterclaims, governed by Rule 13(a), are claims that a defendant is required to bring against the plaintiff. The purpose of the compulsory counterclaim rule is clear: If the court already had jurisdiction over the plaintiff, the defendant, and the subject matter of the lawsuit, it makes sense to hear and adjudicate at one time all claims related to the occurrence or transaction involved. A claim is compulsory if four requirements are met:
1. The claim must already exist when the defendant is required to answer the complaint.
2. The claim must arise out of the same transaction or occurrence on which the complaint is based.
3. The court must be able to obtain jurisdiction over any necessary additional parties.
4. The counterclaim must not be the subject of a pending action.
No jurisdictional dollar amount is necessary.
The principal difficulty with compulsory counterclaims is in determining if the defendant’s claim involves the same transaction or occurrence…. ….difficult question in the corporate and commercial areas where numerous lengthy transactions are often involved. Courts have devised several approaches for determining.
2. Permissive counterclaims
Permissive counterclaims, governed by Rule 13(b), are claims that a defendant my bring, but is not required to bring, against a plaintiff…. A counterclaim is permissive if it does not arise out of the transaction or occurrence on which the plaintiff’s complaint is based.
The concept behind the permissive counterclaim rule is fairness. Since a plaintiff has total freedom to bring unrelated claims against the defendant, the defendant should have the same freedom, restricted only by the independent jurisdiction and venue requirements.
3. The United States as plaintiff
When the
4. Statutes of limitation
5. Waiver and amended pleadings.
5. Practice approach
A counterclaim is simply a complaint brought by a defendant against a plaintiff in a pending suit. In format, content, and signing, the counterclaim should be drafted like a complaint. The only difference is that the counterclaim is made part of the defendant’s answer.
G. Replies
A reply is essentially the plaintiff’s answer to the counterclaim.
H. Cross-claims
A cross-claim is essentially a complaint brought by one codefendant against another codefendant. Rule 13(g) permits a cross-claim.
1. Discretionary pleading
Cross-claims are always discretionary
2. Subject matter
A cross-claims must be based on the subject matter of the original complaints.
3. Timing
4. Jurisdiction, venue, and joinder
Hence, there is not jurisdiction or venue problems relative to cross-claims. If the original complaint is dismissed, however, the cross-claim also will be dismissed.
5.
Cross-claims against the
6. Practice approach
The cross-claim, like a counterclaim, must be part of the defendant’s answer. It must be served with answer on existing parties in…..
I. Impleader (Third-Party Practice)
Impleader, also called third-party practice. It is the method for bringing into an action new parties who may be liable to a defendant for some or all of the judgment.
Impleader must be distinguished from the filing of counterclaims and cross-claims, both of which involve new claims between original parties to the action. The process helps carry out one of the principal purposes of federal pleadings: Whenever possible, consistent with jurisdictional limitations, a court should hear all related claims in one action because this is an efficient way to resolve multiparty disputes and obtain consistent results.
Third-party complaint – A complaint by a defendant in the action against a new party, which brings this new p[arty into the action.
[Entire pages on impleader skipped here]
J. Interpleader
[Entire pages on interpleader skipped here]
K. Intervention
[Entire pages on intervention skipped here]
L. Class Actions
The topic of class actions – a lawsuit brought b individuals representing a large group of identifiable members – by itself can fill volumes.
1. General class requirements.
Rule 23(a) sets out four class requirements that must be met before the action can proceed as a class action.
1. The class must be so “numerous that joinder of all members is impractical. The rule itself does not define what a class is how its members should be determined. Fewer than 30 ordinarily is not enough , 30-50 is a better number, though case law shows no obvious number.
2. There must be “questions of law or fact common to the class.”
3. The “claims or defenses of the representative parties” must be “typical of the claims or defenses of the class.” Also the representatives must be actual members of the class.
4. The representative parties must “fairly and adequately protect the interests of the class.” This requirement is directed to both the representative parties and their lawyers.
[Skipped a couple paragraphs here]
4. Procedure.
“individual notice to all members who can be identified through reasonable effort.” Notice can be an expensive undertaking, sometimes prohibitively so. Notice by first-class mail is usually required; for unknown class members, some form of notice by publication is required.
M. Amendment of pleadings and supplemental
pleadings.
Amended pleadings should be freely allowed when fairness requires it. Amendment would create a more accurate or complete pleading.
1. Amendments by right.
Any party has a right to amend a pleading.
2. Amendments by leave of court.
Rule 15(a) permits amendments by leave of court.
[Skipped at least a page of information here]
5. Practice approach
The motion must state with particularity the grounds for the motion and the relief sought. Timely notice must be sent to other parties.
Chap.
6 Law and Motions
A. Introduction
They used to regulate the routine “housekeeping” mattes in litigation, such as the rescheduling of discovery, hearings, and other deadlines. A motion is simply an application to a court for an order.
B. General Requirements for Motions
Rules 5 through 11 of the Federal Rules of Civil Procedure govern how motions are made. However, local rules must always be checked because they often detail matters such as page size, page limitations, format…..
1. Form
Under Rule 7(b), a motion must meet three basic requirements. It must: Be in writing; “State with particularity the grounds therefor”; State the relief or order requested.
A motion must have a caption showing the name of the court, the names of the parties to the action, and a designation of the motion involved. Every motion must be signed by a lawyer representing the moving party.
2. Notice, service, and filing.
3. Written motions, must be served on every party at least five days before the hearing date. It is good practice to give more than the minimum required by Rule 6 when possible under the circumstances.
Proof of service is merely a certificate, issued by a lawyer or a nonlawyer, that states that service on the other parties has been made in a proper way. Proof of service is a notice that usually appears at the end of a pleading or motion stating particulars about the service of the pleading or motion.
How do you select the day for the hearing on the motion? Check with the clerk of the court to determine on what days the court hears motions. Some judge hold daily court calls…. Finally, check with the clerk the day before the hearing to make sure the case will actually appear on the next day’s motion calendar.
3. Content of the motion
Under Rule 7(b) a motion must be in writing, must “state with particularity the ground therefor,” and must state the relief or order requested. The usual procedure is to draft a concise summarily setting out the matter and the relief requested and to supplement it with a memorandum of law if appropriate. A memorandum of law is a document setting forth the background facts and legal authorities to support.
4. Response to motions
Another approach is to agree to a consent order, in which both parties draft an agree-upon order that disposes of the motion. While this does not guarantee that the judge will sign it, in practice the judge usually will.
5. Hearing and argument
At the hearing the judge will usually dispense with all routine and uncontested matters first. These matters can be handled quickly….. The usual practice is for the lawyers to approach the bench when their case is called. Sometimes the judge will make a tentative ruling….. If a significant motion is involved, the judge will probably permit lengthier arguments and take the case under submission, meaning the judge will research and consider the issues further before deciding the motion.
Tentative rule – A ruling by the judge based on the written briefs submitted by the parties and before oral arguments are heard.
Under submission – Refers to the judge delaying decision on a motion until the judge has an opportunity for further consideration.
6. Order
When the motion is decided, the court
will enter an order. In federal court,
routine motions are usually decided by a minute
order, which is merely a from on which the clerk makes an entry reflecting
the ruling. The minute order is then
signed by the judge or stamped. The
court may refer certain motions to a
C. Extensions of Time and Continuances
The routine housekeeping motions invariably deal with time and date modifications. Rule 6(b) of the Federal Rule of Civil Procedure extensions of time. If a motion to extend time is made before the expiration of the applicable time period, the court may grant the motion for “good cause.” However, if the motion is made after the applicable time period has expired, the court may grant the motion only where “excusable neglect exists.”
What constitutes “good cause” or “excusable neglect” is in the court’s discretion. Usually any reason other than one involving bad faith and actual prejudice to an opponent will result in the court’s granting a reasonable extension of time.
Excusable neglect, on the other hand, is judged on a substantially higher standard. Courts have usually denied extensions of time…. Caused by by the lawyer’s inadvertence or ignorance of the applicable rule or by a lawyer’s busy caseload.
D. Substitution of Parties
While an action is pending, occurrences may take place that will require that a named party be replaced… Such a substitution of parties can be required when a party dies, becomes incompetent, or loses all legal interest in the action. A public official named as a party can die, resign, or be voted out of office.
E. Removal
Removal, as discussed in Chapter 4, is the procedure in which the defendant may transfer a case already filed in state court to the federal court for the same district in which the state action is pending.
[Skipped several pages of material here]
Key Words
Summary
Chp. 10 Discovery
A. Introduction
Important: Discovery is the principal fact-gathered method in the formal litigation process.
Important: Discovery has three main characteristics. First, for the most part, you may conduct discovery without judicial approval, participation, or regulation. Second, the discovery rules are flexible and permit any sequence –and repeated use—of the various discovery methods subject only to court protection against abuse. Third, orders regulating discovery are usually not appealable orders.
On December 1, 1993, sweeping changes in the discovery rules on the federal level went into effect.
Important: Check you local federal rules of court.
B. Discovery Overview
1. Types of discovery
Important: Discovery is designed to prevent trial by surprise. The purpose is to allow each party to find out the other side’s facts supporting the various issues in the litigation so that each party may prepare his or her case for trial. However, in civil actions, where the majority of cases are resolved without trial, it is obvious that discovery has its advantages in the settlement context.
Important: There are five methods of discovery:
Interrogatories
Requests to produce
Depositions
Physical and mental examinations
Requests to admit
Interrogatories are written questions sent by one party to another.
Important: Interrogatories are most effective for obtaining basic factual data from other parties, such as the identity of proper parties, agents, employees, witnesses, and experts and the identity and location f documents, records, and tangible evidence. They are also useful in obtaining other parties’ positions on disputed facts and experts’ opinions and base for opinions. On the other had, interrogatories are not usually effective instruments for getting detailed facts, impressions, or versions of events.
Important: A request to produce is a written request by one party to another seeking formal permission to obtain copies of records, documents, and other tangible items for inspection, copying, and testing. Such a request also permits entry onto another party’s land or property to inspect, photograph, and analyze things on the land or property.
Depositions are oral questions by one party to another. Although depositions are often taken in a conference room in an attorney’s office, the testimony given by the witness (referred to as the deponent) is under oath and taken down by a shorthand reporter who is usually a notary public. The oral questions and answers are then transcribed in a booklet form that the deponent is asked to read an sign. The deponent may be cross-examined, and the deponent’s attorney may make objections to the questions that are asked.
A physical or mental examination of a party can be obtained if the party’s physical or mental condition is in issue. This is often the case in personal injury cases. The examination can only be done if a court order is obtained
Finally, a request to admit is a written statement that forces a party to admit or deny a fact or a document’s genuineness.
2. The paralegal’s role
3. Computerized litigation support
There are three areas in which computers can be extremely valuable:
Conducting research
Locating information about parties and witnesses
Organizing discovery
a. Conducting research
LEXIS and WESTLAW
Important: In addition, the list of materials you receive from your search request may be so lengthy that it may be virtually impossible to review all the material found. Your law firm may also have financial restrictions
b. Locating information about parties and
witnesses
Corporate information such as Dun
& Bradstreet reports. Important:
This could tell you who the officers and directors of a particular business
are, who the corporation’s agent for service of process. Software vendors for services similar to
Lexis/Westlaw are Information America in
c. Organizing discovery
A deposition transcript may also be available on computer disk.
Aspen Litigation Support. American Legal Systems. Techlaw Systems, Inc.
C.
Scope of Discovery
Important: Rule 26(b) of the Federal Rules of Civil Procedure, the basic discovery rule that controls the scope of discovery, provides that a party may discover “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” This action discusses what “relevance” means…. Now expressly regulated by Rule 26: insurance, statements, experts, privileges, and work product.
1. Relevance
Important: Relevance for discovery purposes is exceptionally broad. Information sought need not be admissible at trial, nor need the information itself be relevant. “appears reasonably calculated to lead to the discovery of admissible evidence” In short, a “fishing expedition” is proper if it might unveil probative evidence.
Important: Rule 26(b)(1) expressly permits discovery of the “identity and location of person having knowledge of any discoverable matter,” new Federal Rule relating to discovery that went into effect in December 1993. Under Rule 26(a))1) a party must, without even waiting for a discovery request, make an initial disclosure to the other party that includes the name and nay know address and telephone number for each individual likely to have information relevant to the facts alleged in the pleadings.
Important: Rule 26(b)(1) also expressly permits discovery of “books, documents or other tangible things.” However, also under the newly enacted Rule 26(a)(1) parties are required to describe and categorize the nature and location of all potentially relevant documents and records so that opposing parties can make decisions about which documents actually need to be examined. Again, this information must be exchanged between the parties as part of the initial disclosures made prior to any discovery requests.
2. Insurance agreements
Important: Rule 26(a)(1)(D) expressly requires the disclosure, without a discovery request, of a liability insurance policy held by any party that may satisfy a judgment. This information is critical for assessing, the “value” of a case and the defendant’s ability to pay a judgment.
3. Statements
There are three types of statements: witness statements, party statements made to theparty’s attorney, and party statements made to anyone else.
Important: Statements made by a party to his own lawyer are not discoverable, principally because the attorney-client privilege will usually apply to such communications.
4. Experts
Important: There are three basic kinds of experts: testifying experts, consulting experts, and informally consulted experts.
Rule 26(b)(4)(A) makes discoverable the identity of each party’s experts who are expected to be called as witnesses at trial. Through interrogatory answers, a party must also disclose what subject matter the expert will testify about, the substance of the expert’s facts and opinions, and a summary of the grounds for each opinion.
Important: Nevertheless, Rule 26(b)(4)(A) provides that experts who are expected to be witnesses are subject to deposition prior to trial.
5. Privileges
There are various privileges that may protect the disclosure of certain to the other parties. Rule 26(b)(5) now requires that a party notify the opposing parties if it is withholding materials because it is asserting a claim of privilege.
a. What privilege law applies?
b. What is the applicable federal or state
privilege law?
6. Trial preparation materials
Important: Ever since the Supreme Court decided Hickman v. Taylor, 329 US 495 (1947) federal courts have recognized a two-tier privilege rule applicable to an attorney’s work product; that rule, with some changes and added details, is now incorporated in Rule 26(b)(3) of the Federal Rule of Civil Procedure.
The attorney’s work product, now called “trial preparation materials,” Trial preparation materials include any “documents and tangible things” that were “prepared in anticipation of litigation” by another party or that party’s “representative.” It is only a “qualified privilege” and based upon a showing of “substantial need.”
Important: The second tier of the privilege, the one covering the lawyer’s “mental impressions, conclusions, opinions on legal theories,” is absolutely protected by the privilege. Hence, disclosure can never by compelled.
D. Discovery Strategy: A Seven-Step Process
1.
2.
3.
I
skipped section D entirely
b.
In what order should discovery be
carried out?
1. Interrogatories
2. Requests to produce and subpoenas
3. Depositions of parties, witnesses, and experts
4. Physical and mental examinations
5. Requests to admit
E. Interrogatories
F. Request to Produce Documents and Subpoenas
Chapter
10.
Page 307
Interrogatory No. 6: Identify each sales transaction entered into between plaintiff and defendant for the period of January 1, 1998, through August 4, 1999.
Answer: These transactions are recorded in the defendant's sales records, which are computerized after sales transactions are completed. A printout of these transactions is attached as Exhibit A.
iv. Signing, Serving, and Filing
The format for interrogatory
answers, like any another court document, should include a case caption and
document title. The answers must be signed and sworn to by the person making
them. If any interrogatories are
objected to, the attorney must sign them as well.
The completed interrogatory answers, must then be served on each party and, where required, filed with the court. Service is made, by any proper method under Rule 5, commonly by mailing a copy to the lawyers or the other parties. If required by the court, the original answer, with an attached proof of service, is filed with the clerk of the court. Some court rules require that the original answer be served on the party requesting the interrogatories, with a copy retained in your law firm's files. Always check the rules for the particular court before serving the interrogatory answers. A sample answer is shown in Exhibit 10.15, as yell as in the Litigation File at the end of the book.
F. REQUESTS TO
PRODUCE DOCUMENTS AND SUBPOENAS
After answers to interrogatories have ,been
received, you, will usually have enough detailed‑ information to ask for
copies of identified documents through a request to produce. Hence, requests to
produce are usually the second step in the discovery, process, although simple
requests to produce documents are also frequently served with interrogatories
and ask for, the production of all documents identified in the interrogatory
answers. In federal court you will already have obtained documents as part of
the Rule 26(a)(1) disclosures. Accordingly, your
Footnote 6. The sworn statement is often referred to
as the verification (since the person is verifying the accuracy of the
statements). Under the Federal Rules and the rules of most tes, the
verification may be sworn to under oath and acknowledged by a notary blic, or
stated under penalty of perjury under the laws of the
Exhibit 10.15. Format for Sample Answer to Interrogatories
Exhibit
is missing here
Page 308
request to produce will seek documents not already provided by the other party.
In addition, do not forget the
ability to obtain public records from government entities. If a government
entity is involved in the litigation, you may be able to obtain any records
kept by the entity by simply making a public records request.
1. Law
Requests
to produce documents and other physical or tangible evidence and for entry upon
land to inspect are governed by Rule 34 of the Federal Rules of Civil
Procedure. A request to produce can be served upon another party and also
nonparties under Rule 34(c). The scope of the request, like other discovery, is
controlled by Rule 26(b), which permits discovery of any relevant matter that
is not privileged.
Rule 34 permits requests to produce for three things:
1. Documents for inspection and copes
2.
Tangible things. for inspection, copying, and testing
3. Entry on land or property ..for inspection and
testing ,
Of these, production of documents is the principal use of Rule 34 requests. Documents include all "Writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."
The Rule also requires a party to_produce all documents that are in that party's "possession, custody or control." This obligates a party to produce all relevant documents, even those not in the party's actual possession, if the party has a lawful right to get them from another" person or entity. In short, a party cannot avoid production through the simple device of transferring the documents to another person or entity such as the party's lawyer, accountant, insurer, or corporate subsidiary. When this avoidance device is used, the party is deemed to have retained "control" of the documents and is required to get them returned in order to comply with the production request.
A request to produce must describe each. item or category to be produced with reasonable particularity. This is usually read to require that, in the context of the case and the overall nature of the documents involved, a responding party must reasonably be able to determine what particular documents are called for. (Sample requests with particularity are shown later in this chapter at pages 311‑314.) This is obviously a flexible standard that varies from case to case.
Rule 34 requires that the documents produced for inspection must be produced in either the same order as they are normally kept or in the order, with labels, that corresponds to the categories of the request. The producing party cannot purposefully disorganize documents and records to make them more difficult to comprehend. Furthermore, the request to produce must specify a “reasonable time, place, and manner” for the inspection. The responding party must serve a written response for each category requested, usually within 30 days of service of the request, stating whether he objects with reasons for the objection, or will comply.
2. Practice
Approach
a. Timing
[missing two paragraphs of text here that I did not underline as important.]
This timetable presumes that the party has adequately, and in a timely fashion, answered your interrogatories. If the answering party has objected, failed to answer, or served evasive or incomplete answers, these problems must be resolved through appropriate discovery motions.' Doing this, however, will necessarily delay serving the requests to produce. In this situation you should consider serving a request to produce anyway, since you can ordinarily determine in a general way what documents the other party is likely to have and describe them sufficiently by topic or subject matter to meet the particularity requirement. It is easy for discovery to become sidetracked or to stall completely. In these situations you must weigh the benefits and liabilities of waiting or going ahead in light of the overall discovery strategy for the case
Footnote 7. See section J
of this chapter.
b.
Organization
Before actually drafting the request to produce, you need to organize your thoughts on what you want from the other party. If you have thoroughly discussed the discovery strategy with the supervising attorney and intelligently thought it through, and put forth your interrogatories to and received answers from that party, then the bulk of your work is already done. You will know in sufficient detail what documents you want, what documents the answering party admits having, how those documents are described or labeled, and who their custodian is.
If you have not yet received interrogatory answers but are asked by the lawyer to send out requests to produce anyway, you will have to evaluate what documents the other party is likely to have, how they are likely to be labeled and organized, and who their custodian is. Some of this information may be within the client's knowledge. Accordingly, you should check with the client before serving the document request.
c. Drafting requests to produce
i. Heading
A request to produce should be drafted like any other court document. It must have a caption showing the court, case title, and docket number and be properly labeled. When a case has several parties, it is useful to designate which party is sending the request to which other party; otherwise, the simple title "REQUESTS TO PRODUCE DOCUMENTS" will suffice. A sample heading is shown in Exhibit 10.16.
Exhibit 10.16. Request to Produce: Heading
ii. Definitions
Requests to produce present the same problems concerning definitions as interrogatories. Accordingly, terms and phrases frequently used, such as “document,” “record,” “relating to,” i “transaction,” and “occurrence,” should be defined. It is best to use definitions identical to those used in the interrogatories. Exhibit 10.17 shows a sample format for definitions.
iii. Requests Format
There are three basic requests permitted under Rule 34: to inspect and copy documents, to inspect and examine tangible things, and to enter upon land to inspect and examine things. The requests should follow a basic format.
The requests to produce must specify a reasonable date, time, and place for the production. Rule 34 requires only that this be "reasonable;" which must necessarily take into account the volume and complexity of the records sought. Since the Rule requires a response within 30 days of service, the date set for the production should be a longer time period. Exhibit 10.18 shows the request format.
Most requests to produce involve documents. There are several ways to draft requests that will meet Rule 34's particularity requirement.
First, you can use the interrogatory answers. If those answers have listed and described a variety of documents, referring to the descriptions should be adequate. The responding party will be in a poor position to claim that a description it furnished is now suddenly insufficient.
Example
Request Based on Interrogatory Answer
1. Each document identified in defendant's answer to Interrogatory No. 6 in plaintiff's first set of interrogatories.
Exhibit 10.17 Request to Produce: Definitions
Page 313
Two exhibits
missing here.
Exhibit 10.18. Request to Produce: Request Format
Second, ask for all documents that relate to a specific transaction or event. By making the request specific, it should not be challenged on the grounds of being too vague.
Example
Request Based on Specific
Transaction
2. All
documents relating to the sale of property located at 4931 Sunrise St.,
_______________________________________________________________
Third, you can ask for specific types of documents that relate to a more general time frame or course of conduct.
Example
Request for Specific Types
of Documents
3. All bills of lading, invoices, and shipping confirmation notices relating to all goods shipped from plaintiff to defendant during the period from January 1, 1999, through April 30, 1999.
In each of the above examples, the party responding to the request to admit should not have difficulty in either understanding the request or identifying the documents requested. In contrast, a request calling for the production of "all documents relating to the allegations in plaintiff's complaint" or similarly vague language is defective and unenforceable because it does not meet Rule 34's specificity requirement.
It is possible that the responding party will not object to a general request, but, regardless, it is usually not an effective approach for discovery. Requests to produce should balance the safety of inclusiveness with the utility of a more focused request. A request that is too broad may result in a huge volume of paperwork being deposited in your office; you may have neither the time nor assistance to review all of it in order to extract the few documents that are relevant to the case.
Fourth, it is always useful to ask for the identity of any documents that existed at one time but have since been destroyed. This prevents the literally true but misleading response that there are "no records" of the description requested.
iv. Signing, Serving,
and Filing
The request to produce should be , signed by . the lawyers served on each party, and filed with the court. Service is made by any permitted method under Rule 5, commonly by mailing a copy to the lawyers for the other parties. The original requests to produce, with an attached proof of service statement, are then retained in the firm's files or, if required, filed with the clerk of the court. A sample request to produce is shown in Exhibit 10.19, as well as in the Litigation File at the end of the book.
d.
Responses to requests to produce
A party served with a request to produce usually must respond within 30 days of service of the request. Even though the lawyers for the requesting and responding parties frequently reach an informal agreement on how and when to produce documents and conduct inspections,8 the responding party should serve and file a response since this is required by Rule 34.
i. Researching and Preparing Responses
If the preliminary investigation has been done and answers to interrogatories have been prepared and served, you already will have done most of the initial work involved in responding to requests to produce. In addition, you should always send the requests to the client and ask the client a couple of questions about the requests. First, does the client know what the requests actually call for? If not, your side may want to object on grounds of vagueness. Second, how much effort will be required to collect the documents requested? If it is substantial and the case is not complex, your side may be able to object on the grounds that the requests are unduly burdensome and move for a protective order or at least for additional time to respond.
Footnote 8. See pages 317‑319.
Missing Exhibit
10.19 here
Page 316
After the client has collected the documents, review the material to determine if all of it is relevant. If there are any privileged communications, now is the time to object, since privileges are waived unless timely asserted. Finally, make sure that those documents are in fact all the available documents the client has in his possession, custody, or control. You can be sure that the client another witnesses will be questioned about the completeness of the tendered documents during their depositions. Now is the time to review the documents with the client for completeness. Also be sure to check your firm's files because documents responsive to the request may be in the files.
ii. Objections
As with interrogatories, a party on whom requests, to produce have been served has two possible responses: an answer or an objection. Under Rule 34(b) an objection to a part, item, or category must be specific, and production should still be allowed for the portions that are unobjectionable.
If the response is an objection, there are several possible bases. First, an objection may be made on the ground that the documents sought are irrelevant. However, since Rule 26 has such a broad definition of relevance for discovery purposes, this is a difficult ground on which to prevail. Moreover, this ground will probably have been ruled on if the same objection was made to the interrogatory that asked for the identity of the documents. Second, an objection can be based on a privilege, either the privilege for trial preparation materials and mental impressions under Rule 26(b)(5), or the privileges recognized under Rule 501 of the Federal Rules of Evidence. Third, an objection can be based on the request being annoying, embarrassing, oppressive, or unduly burdensome and expensive. Here the answering party should seek a protective order under Rule 26(c); still, an objection to a request to produce should be made on the response. A response with an objection is shown in Exhibit 10.20.
Exhibit 10.20 Response to Request to Produce: Objection
Exhibit is missing
here
As noted above, a request can frequently be objectionable in part. When this is so, the response should make clear what part is being objected to and what the responding party agrees to produce. Such an objection is a common response to a broad request asking for a variety of documents, some of which may be privileged. In this case you might phrase the objection as follows:
___________________________________________________________
Example
2. Defendant objects to plaintiff's Request No. 2 to the extent it asks for privileged communications protected by the attorney‑client privilege. Plaintiff's Request No. 2 asks for the production of "memoranda by defendant's subsidiary, Acme Productions, relating to a bid on U.S. Government Contract No. 89‑3287, commonly known as the 'Tristar Contract."' These memoranda include documents prepared by Acme Productions officers and employees, documents prepared at the request of and sent to Acme Corporation's General Counsel, which relate to the pending litigation and are protected from disclosure by the attorney client privilege.
___________________________________________________________
iii. Answers
If a request to produce is not objected to, it must be answered. An answer involves two considerations: the formal response and the practical concerns involving arranging for the actual production of the documents. There should be a formal answer even if, as is often the case, the production is worked out informally between the attorneys because Rule 34 requires a response. Exhibit 10.21 shows a typical answer.
If records requested do not exist, the response should clearly establish this fact. In this case your response would be phrased like the following example:
Example
3. There are no documents in the possession, custody, or control of defendant Acme Corporation requested by plaintiff’s Request No. 3.
_________________________________________________________________________
Most production requests are worked out informally between the lawyers, who usually call each other and agree on the mechanics of delivering and copying the pertinent records. This will usually include when and where the documents will be produced, how the documents will be organized, and who will perform and pay for the actual copying. The usual procedure is for the documents to be produced at, or delivered to, the requesting attorney’s offices on an agreed-upon date. The responding party has the option of producing the records either in the order in which they are ordinarily kept or labeled to correspond to the categories of the request. Since most production requests overlap on particulars to ensure completeness, a common approach in responding is to produce the documents in their usual order because this is easier for the responding party.
Exhibit 10.21. Response to Request to Produce: Answer
Exhibit is missing
here
Regarding an informal agreement on the mechanics of reproducing the records, the Rule requires only, production‑not copying‑by the responding party. However, it is usually desirable for the responding party to make copies so as to retain possession of the original documents. For this reason it is common for the responding party to make copies of the records that comply with the requests; the cost of reproduction is then paid by the requesting party.
When the documents involved are so voluminous that copying all of them would be prohibitively expensive, a common solution is to have the lawyer for the requesting party. review the documents at the offices of either the answering party or the answering party's lawyer. The requesting lawyer can then select the relevant documents for photo-copying.
If your client is the answering party, make sure that you keep a copy of everything submitted to the opposing side so that no issue arises later over what was actually delivered. In addition, all documents produced should be stamped in the lower right‑hand corer with a number so that an exact count of the documents can be made. The number also makes it easier to identify the documents for depositions and trial preparation.
In addition, the numbers can serve to identify which party produced the document. For example, the parties may agree that the plaintiff will number her documents that are produced as numbers 1‑1,000, while the defendant will use numbers 2,000-3,000. Alternatively, you may simply setup a code to identify the documents, such as placing a “p” in front of all documents produced by the plaintiff. Whichever method you use, be consistent in the numbering.
iv. Signing, Serving, and
Filing
The written response to requests to produce must be signed, then served on every other party and filed with the court. Service is made by any permitted method under Rule 5, commonly by mailing a copy to the lawyers for the other parties. The original response, with an attached proof of service, is then filed with the clerk of the court, or, if not permitted under your local court rules, maintained in the firm’s files.
Page 319
Page 320
3. Document
requests and subpoenas to nonparties
Rule 34(c)
permits document requests to be used against nonparties to the same extent as
parties if the procedures of Rule 45 are followed.
Rule
45 provides that subpoenas can be issued to command any person “to produce and
permit inspections and copying of designated books, documents or tangible
things in the possession, custody or control of that person, or to permit
inspection of premises, at a time and place therein specified.” The subpoena must be issued for the court of
the district in which the production will b made. If the subpoena is unreasonable or
oppressive, the court can, on motion of the party upon whom the subpoena is
served, quash the subpoena or require that the party issuing the subpoena pay
in advance the reasonable costs of complying with the subpoena.
.
Although in federal court it is not necessary to also notice a
deposition in connection with obtaining the documents from a nonparty, the
practice may be different in state court. In some state courts when a party
wishes to obtain records or tangible things from a nonparty before trial, the only
proper discovery procedure is to subpoena the witness for a deposition and
include in the subpoena a command to produce and permit inspection and
copying of designated records and things. This is some times called a subpoena duces tecum. An example appears in the Litigation File at
the end of the book.
Subpoena duces tecum An
order of the court requiring a witness to appear and produce documents
4. Document
productions
Every litigation paralegal will
undoubtedly be called on at some point to attend a production of documents.
Usually, in document-intensive cases, documents are produced to the other
party by making the documents available for photocopying and inspection at,
either the office of the lawyer of the party producing the documents or, if
they are too voluminous to transport, the place where the documents are
located. As a litigation paralegal,
you may be asked to attend a production of documents produced by the other side
or be asked to review documents that are going to be produced by your side to
the other side.
If you are asked
to attend a production of documents produced by the other party, take the
following steps before reviewing the documents:
1.
Review the request for production of documents and the response
to ascertain what documents need to b produced.
2. Discuss with the lawyer the type of documents
you should look for that maybe of particular interest.
3. Decide on the method of photocopying and the client's budget for photocopying.
With respect to the latter point, in an ideal situation you will want
to photocopy all documents that have even the slightest relevance to the case
at issue. However, large volumes of
photocopying can become expensive,
especially if it is necessary to bring in a mobile copy machine and have
someone undo stapled pages and copy each document individually. On the other hand, if the opposing side will
release the documents to an outside copy service and the documents can be
automatically fed into the copy machine, the cost is much less. Accordingly, it is important to discuss with
the lawyer the type of copy service you will use and any limits on costs of
production.
Once you are at the location where
the documents are being produced, you will need to review the documents
carefully and determine which documents should be copied. If you are unsure about certain documents,
you may wish to tab the documents and verify with the attorney the significance
of the particular document. If cost is
not an object, when you are in doubt the document should be copied.
After the documents have been
copied, you will need to devise a method for indexing the documents. As with the documents you produce to the
other side, all pages of each document should be number stamped. Avoid the temptation of listing every
document produced with the corresponding number. Although this method may work in cases where
few documents are produced, in larger cases the sheer volume of documents are
produced makes it impractical to review such a list for a specific
document. Rather, the documents can
be set up chronologically, by subject matter, or by type of document (i.e.
correspondence, draft contracts, executed contracts, memoranda). Choose the method that works best for you and
ensures that you will be able to quickly locate a document when needed.
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If your side
is producing the documents, you may be asked to review the documents, prior to
the production. This review is essential since you, must be careful to remove
any documents that are subject to an attorney-client or work product privilege. Failure, to remove the privileged document
may result in a waiver of the privilege. In addition, you will want to remove,
any documents that are not relevant to the request made by the opposing party.
Sometimes documents will contain both privileged and unprivileged or relevant and irrelevant matter. In this
situation, _you will need to redact
the portion of the document that is privileged or nonresponsive. "Redacting" refers to covering up
of the portions of the document that should not be produced. To redact a
document , photocopy the document first, then use white-out or white tape to
cover up the portions of the photocopied document that should not be produced. After you have redacted all necessary
parts of the document, photocopy the document again. This latter photocopy
document will be produced. This document should contain a notation that it has been
redacted and the reason for the redaction, such as “Document
Redacted-Attorney-Client Privilege.”
If you are producing a small number of documents, you may wish
simply to send photocopies of the documents to your adversary without engaging
in a formal document production. If the attorney agrees that the documents may
be produced informally, send a transmittal letter along with the documents
produced. This will act as a record that the documents were sent and a record
of the day the documents were sent and of the documents that were produced. A
sample transmittal letter is shown in Exhibit 10.22.
G. DEPOSITIONS
Depositions are usually taken after both
interrogatory answers and responses to documents requests have been received,
since those answers and documents will usually be used to plan an intelligent
deposition. Although depositions are
both expensive and time consuming, they are
Exhibit 10.22. Sample
Transmittal Letter
Dear Mr. Jones.
Pursuant
to Defendant's Response to Plaintiff's First Request for Production of
Documents, enclosed are copies of documents number stamped 1,1100 to 1.,200.
The number represents a control number placed by our, office to identify the
documents as coming from our client. The documents being produced are as
follows.
Description Number
Invoices 1,000-1,075
Correspondence 1,076-1,1196
Contract dated June 1, 2998 1,297-1,200
If you find any document to be missing, or if
any document is illegible and you would like to review the original, please
notify me immediately.
Sincerely,
Thomas Flannery
Legal Assistant
Page 313
quite useful in assessing witness credibility, learning what
witnesses know, and pinning witnesses down.
Other than a subpoena for documents, they are the only discovery method that can
be used on non-parties and the only method in which the opposing counsel does,
not directly control the responses. For these reasons, depositions play a critical
role in the discovery plan of virtually every case.
Rules 27 through 32 of the Federal Rules of Civil Procedure
govern depositions. Rule 30, which regulates oral depositions, is the principal
one, however, since oral depositions are the
predominant way in which depositions are taken. Although you may attend a deposition, only
the lawyer may take the deposition or defend a witness at a deposition.
1. Law
a. Timing
Oral depositions may be taken of any
party or nonparty, and can be taken after the parties have met and conferred as
required by Rule 26(d) and (e). Leave of court is not necessary to take the
deposition before the meeting, so long as the depositing notice indicates with
supporting facts that the deponent is expected to leave the country and will
thereafter be unavailable for examination.
The timing of the depositions should be considered carefully
since under Rule 30 each side has a limit of ten depositions. Thus, in
cases with multiple plaintiffs and defendants, each side must get together to decide
how to use the depositions. This number can be enlarged only by court order or
written stipulation of the parties.
No person can be deposed more than once
without court order or written stipulation of the parties. While Rule
26 does not put time limitations on depositions, Rule 26(b)(2) gives the court
discretion to impose limits, and some local rules impose them as well.
b. Notice
Whenever a deposition will be taken, the
party taking the deposition must give "reasonable" notice to every
party to the action. Rule 30(b) does not specify what is
reasonable, although some local rules specify minimum requirements, frequently
ten days. Also, many courts have addressed the question, most finding that
reasonable notice is a flexible standard that depends
on the nature of the case and the deponent involved.
Footnote 9. Depositions on written
questions are governed by Rule 31. This type of deposition is rarely used.
The notice must state the name and address of each person to be deposed. If the name is not known, the notice must describe the person to
be deposed in sufficient detail to identify that person individually or as part
of a class or group. This is frequently the case with corporations and other
artificial entities where the actual name of the proper person to be deposed is
unknown. In such a case the corporation, or other entity, must designate an
officer, director, managing agent, or other person to testify on its behalf.
The notice must also state the time and place for the deposition.
Subpoena ad
testificandum An order of the court requiring a witness
to appear and give testimony.
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In addition to the notice to other parties, of course the persons
to be deposed must also be notified. A sample notice of deposition appears in
the Litigation File at the end of the book. When the deponent is also a
party, the notice of deposition is sufficient. When the deponent is a nonparty,
he must be subpoenaed in accordance with Rule 45-this is called a subpoena
ad testificandum. Witness fees and mileage costs must accompany the
subpoena, as set by 28 U.S.C. 1821. A problem that frequently arises concerns
the amount of fees and costs that the witness is entitled to receive. A common
practice is to tender the witness a check for the probable mileage and one
day's witness fees, and to take care of any differences after the deposition.
Finally, the deponent can be commanded to
produce records, documents, and tangible things for inspection and copying at the deposition. With parties, this
is simply achieved by serving on the deponent a request to produce under Rule
34 for the same date and place on which the deposition will be held. Nonparties
can also be commanded to produce records by serving a subpoena under Rule
45(a)-a subpoena duces tecum (see page 320). When such a subpoena is served, a
copy of it must be sent to each party by attaching the copy to the notice of
deposition.
c. Location
Rule 30 does not specify where a deposition may be conducted. Accordingly, the deposition of a party can be held anywhere. For some reason the location is unreasonable,
the deposed party must seek a protective order under Rule 26(c). The deposition
of a nonparty must meet the requirements of Rule 45, discussed in more detail
below.
In state court there are often limits on
how far a nonparty deponent may have to travel to attend a deposition. Be sure
to check your local state rules before noticing the deposition of a nonparty
witness.
d. Persons present
Who may be present at a deposition? The usual persons are the
person being deposed, the parties' lawyers, and the court reporter. If the deposition
will be videotaped, a videotape operator will also be there.
Often you, as the paralegal, will also be present to assist the
lawyer in taking notes or handling exhibits during the deposition. In some cases,
if your client is not being deposed and another party is taking the deposition
of a witness, you may be asked to attend the deposition in place of the lawyer
who represents your client. In these cases ,you may be present to take notes
for the lawyer and observe the proceedings.
However; since you are not authorized to practice law, you will not be allowed
to make any objections or statements for the record. In addition, you must be
certain to represent to all parties present that you are a paralegal and not a
lawyer, so that no one will have the misimpression that you are there in
the capacity of a lawyer representing a client.
Parties usually have the right to be
present at any deposition, although they appear infrequently. However, if a
party's appearance is for an improper purpose, such as intimidation or
harassment of a deponent, a protective order can be obtained to prohibit the
party from attending. Nonparties and
members of the media are usually held to have no right to attend depositions,
since a deposition, unlike a trial, is not considered to be a public forum.
e.
Recording
Under Rule 28 a deposition must
be taken in the presence of someone authorized to administer oaths. Invariably, a certified court reporter, who will stenographically
record the testimony, is also a notary public and
therefore able to perform both functions. Rule 30(b)(2) allows the deposition
to be recorded by sound and video or stenographically. Rule 30(b)(7) also
authorizes depositions to be taken by telephone or "other remote
electronic means."
While the predominant means of recording remains the court reporter, since this method produces a written transcript, the other available
methods are utilized more as ways to reduce costs or to make a more vivid
re-creation of the deponent's testimony. These other methods have become a
common way of recording experts' depositions when the experts are not expected
to testify at trial and their depositions will be introduced in evidence during
the trial. Video depositions are also a good idea if the opposing counsel is
unduly interfering when the counsel for your side is taking the deposition,
such as by repeatedly making objections that serve no proper purpose and are
made only to coach the witness on a desirable response.
