......................................................................Discovery Motion|
................ALL RIGHTS RESERVED. PROFESSOR WM
SLOMANSON ................................................Final Exams: 2000-2008 |
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CIVIL PROCEDURE II .......................................................................................PROF.
SLOMANSON TABLE OF CONTENTS ................................................................................................1 FILE LIBRARY
Preliminary Directions. Do not use any future event–which has not yet occurred–to analyze an issue presented in any of my memos to you. For example, Memo #1 is dated December 1, 2001. Your answer should not refer to any document or event that occurs after December 1, 2001. You may, however, use information from any earlier event/memo. I have included a partial Library of materials. You should not limit your legal analysis to the enclosed Library. Nor will you necessarily use all of its contents. There are no waiver issues in this examination. The " * * * " characters merely indicate some unimportant omission.
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December 1, 2001 It is now 6:00 PM. I need your analysis 9:00 PM this evening. I know it's late, but I also know that you'll feel a real sense of accomplishment when it's done! Our law firm represents Pamela Plaintive, a distraught mother whose five-year-old son died of leukemia in 2000 (there is no statute of limitations issue). Pamela lives in the town of Woburn, Massachusetts. We learned that young children from nearly a dozen other Woburn families have also died of leukemia in the last few years. Yesterday, I filed a law suit on our client's behalf. See File. We are representing her on a "contingent fee" basis. We cannot charge her an hourly rate, because she does not have the money to pay us any fees. First, I first need to know whether we can expect a motion to dismiss our complaint for lack of subject matter jurisdiction over our Mass Corporation (MAC) claim and for lack of personal jurisdiction over Deftco. Also, do we have a right to jury for Pamela's claim against MAC? Finally, there was a prior verdict against MAC (see Library). Can we use that judgment in this suit?
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............................................................................Complaint
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Pamela Plaintive....
) .sole heir of her......... ) deceased son Luke... ) .............v. ................) Mass Corporation .) Deftco, Inc............ .) |
................. United
States District Court ............................COMPLAINT
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....................................................Environmental
Degradation Claim (MAC) WHEREFORE, Pamela Plaintive prays for a judgment of: Date: November 30, 2001.......................................................
Signed: Oscar Travolta,
State Bar # 00700
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CRIMINAL NO: 92-092092 CASE: People v. Mass Corp, Inc. VERDICT: We the jury find the defendant tannery, Mass Corp, Inc., guilty as charged for dumping the toxic waste product Ratsaflatsapackalumer into the Woburn River from May 1989 through and including May 1992. * * * JUDGMENT ENTERED: September
17, 1992
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February 2, 2002 Thanks for your excellent work on my Memo #1. I now need you to help me with some additional matters. This is a "fast-track" case, so discovery will end soon and a trial date has already been selected. First, both defendants have answered our Complaint. They have
also provided their "core" discovery. It mentions some
tannery employees, and a foreman at MAC who reports to someone
in the Deftco office in New York. These tannery employees were
supposedly present on all occasions during the tannery's waste
disposal operations. I'd like you to go to the tannery so that
we can determine its waste disposal procedures. Give me a brief
discovery plan, so that we can decide what to do, now that the
case is beyond the pleading stage. Base your proposal on the
information that you now have available from my Memos, the Complaint,
and your general knowledge of discovery. You do not have to include
a list of specific questions to be asked.
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May 15, 2002 You've done remarkable work on the Woburn environmental case. I would love to have you as my partner–if you would have me. But first things first. We obtained a well-deserved judgment from the jury, only to have the trial judge grant the defendants' post-verdict motion for judgment (see File). I have expended all of the firm's financial resources on the Woburn case. So our future–oh yes, and the slice of the verdict we would give to our client–depends on whether we can successfully appeal the judge's order. I suspect that you are rather busy at the moment, so let me help: The plaintiff's trial testimony can be summarized as follows:
During this phase of the case, there wasn't a dry eye in the court. When I rested, the defendants offered 2 million, but I just nodded my head "no." What a majestic moment! The defense testimony was essentially as follows: I am meeting with the plaintiff, first thing in the morning. Don't tell me what I want to hear–tell me what I need to hear, so that I can properly advise our client about whether to appeal.
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* * * -------------------------------------------------------------------------------------------------------------
Q: Mr. Stonewall, I was a bit busy on the day I took
the depositions of all the tannery employees. I'd like to pursue
some additional matters with you today, so that we can get the
rest of the story.
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Pamela Plaintive... ) .sole heir of her......... ) deceased son Luke... ) .............v. .................) Mass Corporation ..) Deftco, Inc............. .) |
................ United
States District Court ......Defendants
Renewed Motion for Judgment |
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.....1. Comes now the defendants,
who seek relief from this court pursuant to F.R.C.P. 50(b). The
defendants incorporate all trial evidence into these moving papers,
as though fully set forth herein. Date: May 1, 2002............................................................Signed:
Robert Fenway Park, State Bar
# 01 |
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Pamela Plaintive... ) .sole heir of her......... ) deceased son Luke... ) .............v. .................) Mass Corporation. .) Deftco, Inc............ ..) |
................ United
States District Court .........Plaintiff's
Opposition to Defendants' ..............Renewed Motion for Judgment |
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.....1. Comes now the plaintiff,
Pamela Plaintive, who obtained a judgment from the jury in the
amount of $850,000.00 based on the evidence at trial. Date: May 11, 2002 .........................................................Signed:
Oscar Travolta, State Bar # 00700
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National Environmental Degradation Protection Act §1. The United States Environmental Protection Agency (EPA) is an agency of the federal government responsible for monitoring the impact of the environment on the nation's water supply. It is the sense of the Congress that the EPA is in dire need of private sources for assisting federal officials with identifying and prosecuting those polluters who fail to comply with obligations arising under the environmental laws of the United States. §2. Any company violating this law shall be subject to a fine, not to exceed fifty thousand (50,000.00) dollars for each violation, and a term of imprisonment for any responsible person, not to exceed six months for each violation. §3. From this day forth, private individuals who experience violations of §4 of this Act may pursue a private claim against any accountable polluter who conducts business operations across state lines and thereby pollutes the environment. Plaintiffs who thus act as private attorney generals may thereby seek an EPA determination of liability and monetary relief in the maximum amount of $50,000.00. The monetary award, which does not displace any other civil and/or criminal liability under the laws of the United States, shall be used by the EPA to cleanse the effected environment. Harmed individuals may thereby assist the national government to combat environmental degradation. §4. * * *
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Federal Rules of Civil Procedure: Rule 54(b) Judgment Upon Multiple Claims or Involving Multiple
Parties United States Judicial Code, Title 28: –Section 1651(a)
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G. Reaper, Judge:
Mr. Justice JACKSON delivered the opinion of the Court. ............................................................Appealability
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CIVIL PROCEDURE II .....................................................................................PROF.
SLOMANSON Subject Matter Jurisdiction MAC Claim Personal Jurisdiction Deftco Right to Jury MAC Claim Prior Jmt against MAC Plaintiff's Discovery Plan Scope Problem re "Expert" Pre-Jmt Appellate Review |
SMJ over MAC Federal Question Defendant Plaintiff Conclusion Diversity Conclusion Overall Conclusion IPJ OVER DEFTCO? Plaintiff Defendant Conclusion Deftco held over MAC (being directly responsible for all of MAC's MASS activities), they have sufficient ties to MASS for MAC related activities. Thus IPJ exists. RIGHT TO JURY FOR CLAIM AGAINST MAC? Pro-Jury Anti-Jury Conclusion Although money changes hands, it is likely that the court would find this to fall within the "complexity" exception, removing the right to a jury trial. Notably, a patent infringement cases, such as Markman, money can also change hands. Thus, the rule is not dispositive. Last Note PROOR VERDICT AGA MAC Identical Issue Plaintiff will argue that People v. MASS Corp. decided conclusively that MAC dumped toxic waste into the river, which is one of the issues she is claiming. Thus, she will wish to use CE on that issue. Also, People v. Simpson explains that because burden of proof is higher in criminal than civil cases, CE can apply to use a negative result from a criminal case against the defendant in a subsequent civil suit. Defendant will argue that issue is not identical, because criminal case involved 1989-1992 and Luke was only alive 1995-2000. Thus no overlap existed between alleged dumping. Actually Litigated Conclusion Collateral estoppel could only be used to show a history of dumping, but not during the period of Luke's life. Can Plaintiff use CE offensively Pamela had not sustained any known injuries in 1992, thus would not have been a reasonable party in the prior suit. Defendant had a full and fair trial? Trial results only were given. No evidence exists to show that trial was anything less than full and fair for the defendant. Conclusion Pam could use CG offensively. Overall Conclusion Pam can use CE offensively, but only to the point of showing that MAC had some history of dumping. She cannot extrapolate the findings past 1992. BRIEF DISC PLAN Next, we need to try to get as much information as we can from the defendants. While we can't get everything, such as privileged information (husband/wife, attorney/client, work product), we can still get that which is relating to the claim or defense. Good news! We can also get information which is not admissible as evidence, as long as it may lead to admissible evidence. Now to get this information, I propose we use the following devices in the order given: Interrogatories: These are a great way to get cheap information. We can send them to MAC and Deftco to find out what we can. We will be limited to 25 questions, so we should sit down and carefully craft them up together. Once we send them off (to opposing counsel, not the defendant's themselves), we should expect them to respond in about 10 days or so. Depositions: Although depositions are more costly, they are important. We can use depositions to get information from people who are not even part of the suit. We can depose the employees we know, and also send a list of questions we wish to ask of the "someone" in Deftco's office in NY. Deftco will then look at the questions and find the right person to depose. Be prepared to travel – the courts don't like us imposing lots of travel and costs on witnesses. Production of documents: We will ask MAC and Deftco to send us all relevant business records on the tannery. Because – if it is a lot, they might send it all and make us look through it (I know, no billable hours in this case). Examinations: We can only get these if we have physical or emotional injuries – 1) in controversy, and 2) with good cause (time, place, manner, scope of exam given). Since we are only claiming wrongful death and not emotional distress for Pamela, these shouldn't apply (maybe amend claim?) Request for admission: Once we gather up our evidence, lets see if we can get defendants to admit to some dirt. (Such as prior dumping of waste into the river.) Anything else we can get them to admit to is great, as it is less we have to litigate later. Can defense depose environmental expert? Two types of experts exist. The first is a consultant, whose work is protected as work product. The second is an expert witness, whose name/reports/opinions/past reports and preliminary opinions are discoverable. CONSULTANT Beware, an exception can exist if defendants show that her opinions are substantially needed and that they are unable to obtain a reasonable equivalent. While I am sure defendants will claim that no "reasonable equivalent" exists, since the expert is the best in the country, we can be sure to point out that other experts exist in NY. That would arguably be better for them because FRCP 1 stresses "inexpensive" and our expert is from Boston, not New York, the defendant's "own backyard." Also, FRCP 1 looks for "just" interpretation. It is not "just" for use to pay our expert to work, to generate opinions, only for the defendants to ride our coattails and simply depose our expect for her opinions. Conclusion If our expert is a consultant, her opinions are protected under the work product doctrine. (Note – Simply that defendant wanted to retain our expert first does not give them special benefits to bypass the work product doctrine.) Expert Witness If we designated our expert as a witness the work product doctrine is waived. Simply put, this means that if our expert is a witness, the defendants can depose her. Overall Conclusion If expert is only a consultant, her information is protected under the work product doctrine (assuming no exception given) and no deposition will be allowed. If expert is a designated witness, the defendants are free to depose her. PREJUDGMENT APPEAL OF DEPOSITION Collateral Order Injunctions Interlocutory decisions Writ Overall Conclusion We may get an appeal by using a collateral order or interlocutory decision (with both courts permission). If not, we could try a writ. Although the defendants will ask the court to avoid piecemeal appeals, we need to stress the important of hearing our appeal immediately to avoid prejudice of our case. (Yes, I want to be a partner.) APPEAL JUDGE'S ORDER Although the judge has a lot of discretion to grant a motion for a new trial, the rules for granting a RMFJ are much stricter. The judge has no discretion and instead follow the rule strictly. In short, the rule is much like the MFJ - no reasonable jury can find for the non moving party - giving to the nonmoving party the benefit of the doubt. For the RMFJ, this motion can be granted if there is no question or issue for the jury to decide. Here, the issue is whether Woburn's water was contaminated with RFP from defendant's tannery. Both sides agree that Luke died from Leukemia which was from exposure to RFP. Also, no dispute exists that Woburn's water was contaminated by RFP. The problem is: defendant claimed that they stopped dumping RFP in to the river in 1992. Since 1992, neither the tannery grounds of the river have had any trace of RFP. We, the plaintiffs, have not presented evidence (on the record before me) that the defendants did dump RFP into the river at any time after 1992. So we are faced with the uncontested situation: defendant dumped waste in river until 1992. Luke was exposed to RFP in 1992-2000. Defendant has not dumped RFP into river or apparently anywhere on their property since 1992. The river is fast moving, so any RFP dumped by defendant in 1992 would have had sufficient time to move past the ½ mile downstream to Woburn. In short, we have not presented any evidence that contradicts the evidence presented by the defendants (aside from whether or not the river was indeed contaminated, but it was only to the knowledge of Stonewall that the river was not polluted. If it was polluted from someone other than defendants, he would not have any reason to know, so there is still no controversy. A jury is allowed to make inferences, but those inferences must be reasonable. Giant leaps of faith unsupported by evidence is grounds for reversible error. Here, the jury determined that it was the defendants who polluted the water from 1995-2000, although no evidence to support that finding was presented. While the water may have been polluted, it appears the culprit was someone other than the defendants. Last minute thought – Stonewall testified that EPA tested river and found it was free of RFP. Plaintiff's expert testified water was contaminated. |
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CIVIL PROCEDURE II .......................................................................................
PROF. SLOMANSON FINAL EXAMINATION .................................................................................... SPRING 2001 ............................................................................................................................. EXAM # __________ |
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TABLE OF CONTENTS .................................................................................................1 FILE LIBRARY ........................................................................Page 1 of 13 |
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.............................................................................FILE
May 16, 2001 Do not discuss waiver in any part of your analysis. Assume
that no rights have been waived. (Some former employees
have employed waiver to avoid discussing the real issues.) Best of luck, PS The symbol " * * * " means that I have deleted portions of certain documents. ........................................................................Page 2 of 13 |
Question 1: Did the court have subject matter jurisdiction over Pat's claim? Question 2: Did the court have personal jurisdiction over David Deftman? ........................................................................Page 3 of 13 |
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Additional Facts: The court ultimately decided that Pat's case could proceed. The parties then exchanged documents which I have summarized immediately below: ...............................................................Core Discovery Exchange..
Our client, Pat, has limited financial resources, because of the failed movie venture described in Pat's Complaint for legal malpractice. Also, as you will learn here, our client's limited ability to pay costs and fees dictates the amount of discovery we can undertake. Thus, you should recommend discovery in only a couple of instances. Core Discovery Exchange......................Page 4 of 13 |
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Additional Facts: Defendant Deftman retained the services of a well-known Los Angeles legal malpractice expert named Jane Doe. We wanted to take her deposition, before the trial of this action, but <that slimebucket> Deftman was unwilling to allow her deposition without judicial intervention. We thus filed the following document with the trial court (which was opposed by the defense, as indicated on the next page):
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Question 4: The trial court ruled against us, and thus denied our request for the deposition. Was the court's ....................decision correct? Question 5: Would an appellate court possess the subject matter jurisdiction to review this decision, prior to ....................final judgment? Assume that the trial judge would not consider this particular order to be an ....................appropriate one for appellate review prior to final judgment. (We won't charge the client for ....................your analysis of this point. I'm just curious about whether I could have appealed at this stage of ....................the litigation.) ........................................................................Page 6 of 13 |
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Additional Fact: After a significant amount of discovery, when this case was about to go to trial, the parties filed the following documents:
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Additional Facts: At trial, the jury found for the
defendant, David Deftman. The parties thereafter filed the following
documents:
Question 7: The trial court denied both parts of Pat's motion. Was that ruling correct? ........................................................................Page 8 of 13 |
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While many "followup" films are produced each year, there is a clear hierarchy of prospects for success. Industry trends indicate that the success rate for revised versions of popular films may be ranked in the following descending order of financial success (from best to worst): (1) Decades-later "remakes" of the most popular
films–those which are "timeless," just get better.
------------------------------------------------------------------------------------------------------------ ...................................................................Letter
to Client Dear Pat: ........................................................................Page 9 of 13 |
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......................................................................Trial
Testimony Additional Facts: After testimony by the parties, and their respective legal malpractice experts, Pat called Wally Witty as the plaintiff's star trial witness. Later, the defense called Wilma Wawa as its star witness. Excerpts from their respective testimony follows: Direct Examination of Wally Witty by the Plaintiff's
Trial Counsel (Wartorn Pratner): By counsel for the Plaintiff: No further questions,
Your Honor. |
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Direct Examination of Wilma Wawa by the Defendant's
Trial Counsel (David Deftlaw): By plaintiff's counsel: Objection, Your Honor. Calls
for speculation on the part of this witness. Q: Wilma, please summarize exactly what was stated in your
article. By plaintiff's counsel: No further questions, Your Honor. We hereby enter the previously marked Defense Exhibits "A" (New Films Reports) and "B" (Letter to Client) into evidence. [Cross-examination did not provide any further relevant evidence.] ........................................................................Page 11 of 13 |
...........................................................................Rules Federal Rules of Evidence: ............................................................................Cases
[more cases on next page] |
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.............................................................. David
v. Goliath Industries .........................................................................Contra
v. North
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| ....................................................Prof's Issue Outline (Spring 2001) | |
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QUESTION 1: SMJ OVER PAT'S CLAIM QUESTION 2: IPJ OVER DEFTMAN QUESTION 3: BRIEF DISCOVERY PLAN QUESTION 4: DENIAL OF JANE DOE DEPO |
QUESTION 5: APPELLATE SMJ re DEPO ORD QUESTION 6: SUMMARY JUDGMENT |
| ...................................................Sample Student Answer (Spring 2001) |
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Q1: SMJ Subject matter jurisdiction is the power of a court to hear a particular case. Federal subject matter jurisdiction can be invoked under 28 USC §1331 (Federal Question) or 28 USC § 1332 (Diversity of Citizenship). Pat's complaint does not specifically state which type of subject matter jurisdiction is being claimed. He appears to be claiming §1332 because he mentions domicile, which is irrelevant to §1331. One foreseeable route to §1331 jurisdiction is to claim that the action arises under interstate commerce. After all, the action is between a California citizen and a senior partner of a New York law firm. Also, the underlying subject matter has to do with the international marketing of a film (international treaty involved). Since Pat appears to be claiming §1332 jurisdiction, that is where the analysis will focus. Have the Requirements of §1332 Been Met? Federal jurisdiction based on diversity of citizenship requires satisfaction of two elements: 1) that the amount in controversy exceed 75,000, exclusive of interests and costs; and 2) that the action be between parties that are domiciled in different states. Amount in Controversy Subject matter jurisdiction will not be denied for failure to meet the minimum amount unless it can be down to a legal certainty that $75,000.01 could not be recovered. Paul claims damages of $100,000,000 – on amount far in excess of the minimum amount. Deftman bases his claim of lack of SMJ on the motion picture industry's "New Film Reports" as contained in our file. That report states: "‘Part III' versions of films which initially appealed to only limited market segments – the vast majority of these mere rehashes have been financial disasters for virtually every promoter." This report is insufficient to establish to a legal certainty that the minimum amount could not be met. First of all, it is unclear whether Pat's motion fits in the category of films that "initially appealed to only limited market segments." Austin Powers I and II were actually widespread successes. They were both "extremely successful" in Europe. It is difficult to be extremely successful when appealing to only a limited market. (This contention is also supported by Mr. Witty's trial testimony that those films appealed to the "average" moviegoer.) Secondly, the New Film Reports statement applied only to the "vast majority" of such films. That means some of the described films were successes. Therefore, there is no legal certainty that Pat's film would have failed. Thirdly, a movie can be a "financial disaster" and still make millions of dollars. Even the worse movies make more than $75,000 oftentimes. Domicile A party's domicile is determined by 1) presence and 2) intent to remain. Mas v. Perry. Pat is domiciled in California, and this fact is not contradicted. Diversity of citizenship is destroyed only if Deftman is also domiciled in California. There are two pieces of evidence that suggest Deftman might be domiciled in California: 1) the fact that he is licensed to practice there and 2) the fact that he recently moved. Deftman does not state where he recently moved. Deftman does not state where he moved to. Because he is a senior partner of a law firm in New York, it is unlikely he moved to CA (which would be his burden to prove). Furthermore, if Deftman moved to CA, that flies in the face of his claim that the district court lacks personal jurisdiction. In conclusion, the trial court properly determined that it has the required subject matter jurisdiction to hear the case. Q2: IPJ In personam jurisdiction is the power of a court to exercise jurisdiction over a person. In a state like CA where the long arm statute extends as far as the constitution will allow, an analysis of in personam jurisdiction is reasonably simple. In this situation, the court looks to three guideline tests: minimum contacts (International Shoe), purposeful availment (Hanson v. Dencla), and reasonable anticipation (World Wide Volkswagen). These guidelines only need to be examined if there is not general in personam jurisdiction over the party. Because Deftman does not appear to reside in CA, there is a question of specific jurisdiction. Minimum Contacts [Here, one of my exam comments was that dividing into three parts would probably result in "Peat, Repeat, and Threepeat" of same argument, over, and over, and over.] This guideline asks whether the party has had sufficient contact with the forum state to justify exercise of in personam jurisdiction. Deftman not only is licensed to practice law in California, he also entered into a contract with a California resident. This would satisfy most courts that there are minimum contacts. Deftman states that he never entered the forum "to negotiate or otherwise undertake any representation," but this is overcome by the fact that he is licensed to practice in CA. Purposeful Availment This guideline asks whether the party has purposefully availed himself of the benefits offered by the state. Deftman purposely chose to become licensed to practice law in CA. This license is a benefit offered by the state. Reasonable Anticipation This guideline asks whether the party could have reasonably anticipated being called to defend a low suit in the jurisdiction. Because Deftman is licensed to practice in CA it is reasonable to assume he has some clients there. If he negligently represented any of these clients he would have to answer in California. That is exactly what happened here. In conclusion, the district court's exercise of a personam jurisdiction was proper. Q3: Brief Discovery Plan [Exam Q said "very brief" & recommend just "a couple" of discovery events.] Discovery in a second trial will be limited by three factors: 1) Pat's limited financial resources, 2) the holding from Umpty, and 3) the holding from Clem. The discovery will be bolstered by the two general principles: 1) that the FRCPs "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action," (FRCP 1), and 2) the notion that the FRCP, "encourage a mutual exchange of all information within the scope of the Rules." (Umpty) There are five discovery devices described in the FRCPs: depositions (FRCP 30), interrogatories (33), production of documents and things (34), examinations (35), and requests for admissions (36). No examinations appear to be called for, but the other four devices might be used. Depositions Depositions are the only discovery device that can be used on non-parties (FRCP 30(a)). They tend to be expensive, but they are useful in that they require immediate answer. Pat would like to obtain the deposition of Deftman's expert: Jane Doe. Unfortunately, Clem seems to indicate that this cannot be obtained. That case describes the "Law of the Case" doctrine which a party cannot re-litigate "a matter resolved by a pre-trail motion." Access to Jane Doe's testimony was denied in a pre-trial motion. Umpty precludes "the fresh discovery of information from resources already obtained in a prior action involving the same parties – other than the routine implementation..." As depositions have already been taken from Deftman, Ms. Wawa, and Mr. Witty; there depositions cannot be taken again. It would be wise to remind these parties of their duty to update under FRCP 26(e), though. Barney Rubble was not previously deposed, and he should be deposed now. General note: The scope of discovery is limited to matters that are 1) not privileged, 2) relate to a claim or defense or with good cause relate only to the subject matter, and are 3) admissible as evidence or reasonably calculated to lead to admissible evidence (FRCP 26(b)). Interrogatories Interrogatories may only be addressed to parties and are limited to 25 in number (FRCP 33(a)). Because, interrogatories were already addressed to Deftman, Umpty precludes further interrogation. Again, Deftman should be reminded of his duty to update under FRCP(e). Production of Documents A party may request production of documents within the scope of discovery that are in the possession, custody, or control of the opposing party (FRCP 34). Pat should have sought any records of Deftman's that showed the extent that he did attempt to promote Pat's movie. Again, Umpty may severely limit such discovery now. Requests for Admissions To the extent not precluded by Umpty, Deftman should be requested to admit: 1) that he did not draft the PDMP, and 2) that he did not show at the planned meeting with Mr. Witty. Additionally, if Jane Doe was used by Deftman (the facts do not indicate either way with certainty), Pat would be entitled to her deposition. In conclusion, Umpty appears to severely limit the renewed discovery. Perhaps it only prohibits discovery aimed at the same information. At the least, Barney Rubble should be disposed. Next, Pat should seek relevant documents from Deftman and admission of this failure to attend the meeting and draft the PDMP. Deposition of Jane Doe can probably not be obtained. Q4: Request for Deposition of Jane Doe If a person is named as the trail expert for the opposing party than that person may be deposed and they also must turn over a written report of their opinions and findings (FRCP 26(a)). Deftman only indicates that Jane Doe was retained to "assist in the defense," he does not explicitly name her as a trial expert. Deftman did eventually use a trial malpractice expert at trial, but it is not clear whether this was Jane Doe. If a party uses an expert only for consultation, then that person and her information fit within the qualified work product privilege. The standard for an opposing party to obtain an expert consultants' information/deposition is that there are "exceptional circumstances" under which it is "impracticable" to obtain similar information elsewhere (FRCP 26(b)). Similar to substantial need standard but specific to consultant experts (see FRCP 26 (b)). Exceptional Circumstances A party must demonstrate exceptional circumstances, or else these requests to depose an opposing party's expert consultant will be denied. (Perry v. Darley) Jane Doe is a "well known" legal malpractice expert, and that has limited financial resources to employ anyone else. Contra indicates that expert testimony is "specifically required when the issue to be determined involves the local standard of care being allegedly breached." Goliath indicates that this is exactly what Pat needs to prove here. Of more help to Pat is Contra's finding that "economic hardship in certain circumstances" will constitute sufficient hardship. Furthermore, this case states that the judges are "expected to assess pragmatic options such as cost-sharing." This liberal standard suggests that the exceptional circumstances requirement has been met. Impracticable This may be the reason the judge denied the deposition request. Pat's motion indicates that there is another expert in San Francisco. As this case is in the Central District of California, the judge probably would expect pat to contact that expert, Jan Doe. Pat could have again argued economic hardship. Without more evidence on the extent of this hardship, the district court judge's decision was probably appropriate. Furthermore, Deftman indicates that Pat did not proceed to seek similar information earlier. Q5: Appeal Because the trial judge would not certify an appeal, the only possible routes are contempt, injunction, collateral order, writ route, and class action. Contempt and class action routes are not suggested by the facts, but the others are. Injunction 28 USC §1292(a) creates an automatic appeal route for all injunctions. Because the trial judge's order prevents pat from deposing Jane Doe, it might be considered an injunction. Gulfstream Aerospace Corp. v. Magacamus Corp., though, states that procedural matters cannot be appealed through §1292(a). Because the discovery process is a matter of procedure, the injunction rate will be unsuccessful. Collateral Order Collateral orders are automatically appeal. The elements were established in Coher v. Beneficial: 1) a judgement, 2) or an issue collateral to the merits, 3) that is effectively unrecievable open appeal of the final judgment. The trial judge's decision about the deposition resolved an issue not on the merits, so the first two elements are satisfied. The Supreme Court has used the third element to severely limit the use of the collateral order appeals. Because of the Supreme Courts dislike of the collateral order appeal route, any applied under Coher is an uphill battle. In this case though, the third element appears satisfied. If the trial proceeds without Pat being able to depose Jane Doe, the damage will already be done. Given the "Law of the Case" doctrine from Clem, Pat could never challenge the original trial court decision. Writ Route Under 28 USC §1651, the appeals courts may receive any matter when they deem it "necessary and appropriate" in the aid of their respective jurisdictions. LaBuy v. Howes Leather Co. is one example of a case where §1651 was successfully involved. Writ review will not be granted if there is an adequate remedy at law. There is no such remedy in Pat's situation, the only thing that will help is an equitable order to command allowance of the deposition. This route may be the most likely to succeed given the restraints that have been placed on the collateral order route. It would be especially likely to succeed if Jane Doe where indeed to be used as a trial expert. Q6: Summary Judgment Four elements must be satisfied in order for a motion for summary judgment to be granted: 1) no genuine issue as to any material fact (FRCP 56 (c)), 2) no reasonable jury could find for the opposing party (Anderson), 3) the affidavits must reflect personal knowledge and be admissible as evidence (FRCP 56 (e)) and 4) the evidence must be examined in the light most favorable to the non-moving party (Addickes V. Kress). Genuine Issue of Material Fact If after examining the evidence and affidavits on both sides there is any issue of material fact, the motion must be denied Deftman used Goliath and the New Films Report as his evidence. Pat used the letter from Deftman and Pat. Goliath provides that a legal malpractice claim can succeed only if it is demonstrated that the legal representation fell "below the minimum standards for lawyers in the relevant legal environment." This deals wit the issue of causation. Pat's counter-evidence, the letter, only establishes that Deftman quit working for Pat. This does not establish causation. A summary judgment motion can succeed by pointing out that the other party has no evidence. Celotex Corp. v. Catrett. Pat can point to the part of the letter that indicates that Deftman quit partly due to pressing "other matters at the farm." This can create the presumption that Deftman left Pat "high and dry" which would arguably fall below any communities standards of professional conduct. The News Films Report goes to the issue of damages. It is inconclusive because it talks about the "vast majority" of films (of which Pat's may not even be the same type – see SMJ discussion). There is a factual question of whether Pat's film may have been of the type that would have succeeded. No reasonably jury ... This analysis is similar to the immediately proceeding analysis. The real problem is causation, because Pat's evidence only consists of a letter. A reasonable jury could possibly infer from this letter unprofessional conduct (quitting due to personal pressures from moving and unrelated matters at the firm, and making fun of Pat's movie – snowball's chance in hell comment) that falls below community standards. Based on personal ... The Goliath case is admissible as case precedent and is based on the judicial system's personal knowledge. The "New Films Reports" is admissible (per the memo) and written by the senior editor of the magazine. The letter also suggests that Deftman did contact the foreign sales agent and quit on his advice (strong end for Deftman). Evidence must be looked at .... This element may be Pat's saving grace. His evidence on causation is weak, but even weak evidence can overcome a motion for summary judgment because it must be looked at in the light most favorable to the non-viewing party. Q7: Motion for Judgment (New Trial) A party may alternately request both motions (FRCP 50(b)). Renewed Motion for Judgment This motion can only be successful if there was an original motion for judgment prior to jury instructions. The facts are silent on this question. Assuming that there has been an original motion for judgment, two elements must still be met: 1) the legally sufficient evidence basis such that, 2) no reasonable jury could find for the opposing party. A judge may not weigh the evidence when considering this motion. The trial testimony reveals that Deftman's only defense was Ms. Wawa's testimony. She even states that the article tending to establish no damages might not be relevant now. Pat's evidence established that Deftman did not complete a PDMP as required and did not attend a required meeting with Mr. Witty. The evidence tends to indicate that Deftman breached a duty to Pat and because Pat had no other alternatives (Mr. Witty representing the only such company), that breach caused injury. Deftman's evidence does not establish lack of damages. Denmar v. Spain is an example of a case where a renewed motion for judgment was grated there was no evidence of causation and the motion was granted against the plaintiff. Here the jury may not have believed Mr. Witty's testimony or they may have given a lot of credit to the New Film Reports. Because the case is not a slam-dunk, like Denmar v. Spain, the court will probably not grant this motion. Motion for New Trial According to FRCP 59 a new trial may be granted for any of the reasons traditionally used the essential element is "prejudicial error." Minn. Rule of Civ. Proc. J9.01 delineates common grounds for grating a new trial. Among those that may apply here are: 1) verdict not justified by the weight of the evidence, 2) irregularity, and 3) error of law. Weight of Evidence As discussed immediately above, pat's evidence tends to establish breach and causation while Deftman's evidence does not refute damages. A trial judge may weigh the evidence when considering a motion for new trial. The trial judge also has wide discretion in deciding whether or not to grant the motion (Aetna v. Yeatts). The weight of the evidence suggests breach and causation (no other route to market the film in foreign countries). It is reasonable to assume the movie would have made some money, especially when the previous 2 Austin Power's were "smashing" successes. The trial judge should grant the motion based on the weight of the evidence. Granting a new trial would not offend the 7th Amendment because new trials are a common-law manner of review of facts determined b a jury. Irregularity It is possible that Ms. Wawa's speculative comment that "‘Part III' of the Austin Power's is a third-rate film" had a prejudicial effect on the jury. After all, Ms. Wawa is an expert and her opinion may be given great deference. The comment was uncalled for and potentially devastating to Pat's claim FRE 702 suggests this may have been allowable even though. Error of Law This would come into play if Jane Doe was used as a trial expert by Deftman. In that case Pat should have been allowed to depose her. The facts indicate both parties had testimony from "their respective legal malpractice experts." If one of these were Jane Doe's the trial judge committed prejudicial legal error in not allowing Pat to take her deposition. |
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CIVIL PROCEDURE II ....................................................................................
PROF. SLOMANSON TABLE OF CONTENTS ..................................................................................................... 1 FILE Police Report/Criminal Verdict Form ....................................................................................... 3 Civil Complaint/Answer........... ................................................................................................
4 Opposition/Motion to Dismiss .................................................................................................. 5 Discovery Motion/Opposition to Discovery .............................................................................. 6 Arbitration Order/Request for Appellate Review ....................................................................... 7 Trial Testimony of Various Witnesses ........................................................................................ 8 Civil Verdict Form/Motion for New Trial ................................................................................... 9 LIBRARY |
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.................................................................................FILE ......................................................Memorandum from Janet Kenney Our law firm is interested in hiring
you. We administer a modified version of the Multistate Performance
Test This problem is set in the fictional
State of Columbia, a State of the United States. The Southern
District of You will have two sets of materials
with which to work: (1) the File (p.2-9); and (2) the Library
(p.10-11). We recommend that you spend between
forty-five minutes and one hour reading and digesting the facts.
You You should assume the following: The firm would like you to spend the
next three hours doing the following: Finally, we are looking forward to your
joining our firm. We thus appreciate your "going through
the motions" Janet Kenney, |
...............................................Police Report: Tim Badden Investigation
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Reporting Officer ....William Calley |
... I.D.
# ...1584 |
.......Division ..........F9 |
.. Approved
by ..Joseph Medina .......#368 |
.. Date
of Report .........6/1/99 |
.... Time .....2150 |
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STATEMENT OF WILLIAM REED (WITNESS) William observed the suspect pull out a gun, point it at the back/side of Jason's (McTavish) head, and then run out the west door. William then tackled the suspect thereby bringing him to the ground. A fight ensued, during which William and the suspect exchanged blows. William said that the suspect stated, while running away, that "When I see you again, and I will, I will kill you and the little hooker you were with" (referring to Christina). The suspect then ran off toward Madra
Avenue. William, who said he did not wish to "do something
else stupid," returned to the vicinity of the outside payphone.
Police Helo #954 and Squad Cars 3150 and 2745 arrived approximately
two to three minutes later.
CHARGE #1: ROBBERY OF EMPLOYEE JASON
McTAVISH CHARGE #2: ASSAULT ON WITNESS WILLIAM
REED CHARGE #3: BATTERY OF WITNESS WILLIAM
REED SENTENCE/JUDGMENT: Life, without possibility
of parol |
......................................................................Civil Complaint
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William Reed, Plaintiff..
) ...............v..................... ) Tim Badden, Defendant ) |
............ United States
District Court for the ...............Southern District of Columbia .........Civil action, File Number 654321-AMB .........................COMPLAINT |
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1. Plaintiff is a citizen of the State of Columbia. Defendant, although serving a life prison sentence in Columbia, is a citizen of his original domicile in the State of New Jersey. 2. Defendant, on or about June 1, 1999, robbed Stump's Supermarket in the Del Cerro area of Columbia. When exiting the market, plaintiff encountered Badden, who was engaged in the commission of a robbery. Without provocation, Badden then assaulted and battered the plaintiff, as previously determined in the criminal trial of this event. See attached Police Report (File). Although the plaintiff was not hospitalized, nor treated by a doctor, the defendant nevertheless thereby induced great stress as plaintiff Reed was attempting to foil the defendant's robbery of Stump's market. The defendant stated that he would kill the plaintiff, and his daughter, if the defendant ever saw either of them again. 3. Wherefore, plaintiff demands judgment against defendant
for general money damages, plus specific costs and interest,
in the combined amount of $80,000.00. |
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.............................................................................Answer
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William Reed, Plaintiff..
) ..................v. ............. .. ) Tim Badden, Defendant ) |
...........United States District
Court for the ...............Southern District of Columbia .........Civil action, File Number 654321-AMB .............................ANSWER |
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..................................................................General/Special
Denial ...................................................................Affirmative
Defense #1 ...................................................................Affirmative
Defense #2 ...............................................................Page 4 of 11 |
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.............................................................................
...............................................Motion for Partial Summary Judgment
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William Reed, Plaintiff..
) ...................................... ) ...................v. ............ .. ) ...................................... ) Tim Badden, Defendant ) |
........... United States District
Court for the ................Southern District of Columbia .........Civil action, File Number 654321-AMB ...............PLAINTIFF's MOTION for ..........PARTIAL SUMMARY JUDGMENT |
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Plaintiff William Reed hereby moves this court for a partial summary judgment, under Rule 56 of the Federal Rules of Civil Procedure. .....................................................Plaintiff's
Supporting Points & Authorities 2. There was a prior criminal action involving these same parties. See attached Criminal Judgment, Case Number 99-1111, and Officer Calley's Police Report (File). These affidavits, together with the pleadings in this case, establish that defendant Badden: (a) assaulted, (b) battered, and (c) caused great emotional distress to the person of plaintiff Reed. In this subsequent civil action, plaintiff need only establish damages at the time of trial for each of these three tort claims. |
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..........................................Opposition to Summary Judgment Motion
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William Reed, Plaintiff ..) ...................................... ) .................v. .............. .. ) ...................................... ) Tim Badden, Defendant ) |
.................United States
District Court for the .....................Southern District of Columbia .............Civil action, File Number 654321-AMB ......DEFENDANT's OPPOSITION TO SUMMARY ..JUDGMENT & MOTION TO DISMISS COMPLAINT |
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..........................................Defendant's
Opposing Points and Authorities 2. Reed's case should be dismissed. The court does not have subject matter jurisdiction (SMJ). 28 USC § 1332. The plaintiff has not presented a case within the Diversity SMJ of this court. Thus, the facts, pleadings, and other documents in this case (File) demonstrate that William's case cannot proceed. |
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......................................................................Discovery Motion
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William Reed, Plaintiff ..) .......................................) ..................v.................. ) .......................................) Tim Badden, Defendant ) |
...............United States
District Court for the ...................Southern District of Columbia .............Civil action, File Number 654321-AMB ...................DEFENDANT's MOTION for ...............PSYCHIATRIC EXAMINATION |
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Defendant Tim Badden hereby moves the court for an order requiring plaintiff William Reed to submit to a psychiatric examination. This examination will enable the defendant to determine the degree of stress which plaintiff actually suffered. ...................................Defense
Counsel's Declaration in Support of Examination Motion |
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......................................................................Opposition to Discovery
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William Reed, Plaintiff ..) .......................................) ...............v..................... ) .......................................) Tim Badden, Defendant ) |
.............. United States
District Court for the ....................Southern District of Columbia ...........Civil action, File Number 654321-AMB .................PLAINTIFF's OPPOSITION to .....................DISCOVERY MOTION |
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1. The defendant's motion is frivolous. Plaintiff is seeking damages for the stress which unquestionably arose out of the facts spawned by Tim Badden's robbery–for which this defendant was convicted for harming this plaintiff. Plaintiff's daughter was also in the vicinity, which added to the stress which the plaintiff experienced at the hands of the defendant. Thus, there is no need to evaluate whether plaintiff was actually harmed by the defendant. This harm is obvious and speaks for itself. 2. Further, if the court were to grant this motion, the plaintiff is entitled to a more complete description of the circumstances of the proposed examination. |
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...............................................................Judge's Arbitration Order
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William Reed, Plaintiff ..) ........................................) ...............v...................... ) ........................................) Tim Badden, Defendant. ) |
............United States
District Court for the ................Southern District of Columbia .........Civil action, File Number 654321-AMB ..................ARBITRATION ORDER |
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1. Pursuant to the authority vested in the trial judges of this district, a trial judge may order a general civil case to arbitration, for all cases where the amount in controversy is valued at less than $100,000.00. Local ADR Rule 13.6. 2. I am thus ordering this case to be arbitrated, because Reed v. Badden fits within the alternative dispute resolution guidelines established for this federal district. Local ADR Rule 13.7. .................................Signed
by: Eric Hoffman |
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...............................................................Request for Appellate Review
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William Reed, Plaintiff ..) ........................................) ...............v...................... ) ........................................) Tim Badden, Defendant .) |
........Filed in: United States
District Court for the ............Southern District of Columbia and the ...............Fifteenth Circuit Court of Appeals ...........Civil Action, File Number 654321-AMB ....................APPELLATE REVIEW |
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Plaintiff William Reed herein seeks review of the trial court's arbitration order, in the above-referenced case, on the following grounds: 1. The required arbitration of this case violates plaintiff's right to jury trial, as guaranteed under the United States Constitution, Amend. VII. 2. The trial judge's order is too important to be denied immediate review. Plaintiff thus seeks review under any available basis for federal appellate review, prior to final judgment. Only then can this case proceed to a judgment which would not offend the Constitution of the United States. |
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...... Trial Testimony (arbitration
did not finally dispose of this case & 15th Cir. declined
review)
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Direct Examination of Plaintiff William Reed (by plaintiff's
trial counsel): Direct Examination of Witness Christina Reed (by plaintiff's
counsel): Cross Examination of Christina (by defense counsel)
Direct Examination of Jason McTavish (by plaintiff's
counsel): Cross Examination of Jason McTavish (by defendant's
counsel): |
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....................................................................Civil Verdict Form
WE, THE JURY, FIND FOR: Defendant, Tim Badden. |
..........................................Plaintiff's Motion for New Trial
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William Reed, Plaintiff ..) ........................................) ...............v...................... ) ........................................) Tim Badden, Defendant .) |
............United States
District Court for the .................Southern District of Columbia .........Civil action, File Number 654321-AMB ...............MOTION FOR NEW TRIAL |
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Plaintiff hereby moves the court for an order granting the plaintiff a new trial. Points and Authorities in Support of Motion 2. The trial evidence establishes that this jury arrived at its result based on passion and prejudice. Given the plaintiff's heroic efforts to capture the robber, no reasonable jury could have found for the defendant on the facts of this case, unless its members were sympathetic to all criminals in general. 3. Thus, the judge has the power, and in this case the duty, to effectively preserve the right to jury trial by ordering that a new jury retry this case to achieve a just result. The trial evidence was therefore insufficient to arrive at a defense verdict. |
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...........................................................................LIBRARY
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STATUTES: The district courts shall have original
jurisdiction of all civil actions where the matter in controversy
exceeds the |
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...................................................................Res
v. Coll Shazbat, J. We commence our analysis with two preliminary propositions of "hornbook" law. First, the impact of res judicata and collateral estoppel generally depends on the facts–and not whether the two cases are, respectively state or federal in nature. Second, the fact that the prosecutor is effectively representing the people at large does not preclude an individual crime victim from seeking money damages in a civil case based on the same general set of facts. Thus, there would be no res judicata implications for a person who chooses to proceed with his or her own civil case, regardless of which case first proceeds to judgment. Regarding the precise issue in this litigation, when the prior
civil case involves the same facts and then proceeds to judgment,
it does so with a lesser burden of proof than in a criminal case.
Civil judgments are normally predicated on the familiar "preponderance
of the evidence" standard. There would thus be no estoppel
in a subsequent criminal case, where the burden of proof is "beyond
a reasonable doubt." In the reverse scenario however, where
a case which is predicated on the same set of facts is first
resolved in the criminal courts, that judgment may estop a guilty
defendant from relitigating the identical issue. |
..Case
#2–Tate v. Manson
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................................................................Tate
v. Manson *** Having said that, we now turn to a brief restatement of
the substantive law of Columbia involving two related but distinct
types of "stress" claims. One is the claim wherein
a plaintiff seeks redress for the stress routinely associated
with general pain and suffering. The other is the specific stress
associated with claims for negligent, or intentional, infliction
of emotional distress. |
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RULES: Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue ***. Such demand may be indorsed upon a pleading of the party. FRCP 38(b). Local Rules of Court– When arbitration is so ordered, either party may subsequently seek trial de novo, as if there had been no arbitration. Such cases will be reinstated on this District's Civil Active List. A party thus retains the right to a jury trial, assuming that it has been timely demanded. ADR Rule 13.7. ............................................................................Page 11 of 11 |
| ...................................................Prof's Issue Outline (Spring 2000) |
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PLAINTIFF'S SUMMARY JUDGMENT MOTION (CE) DEFENDANT'S OPPOSITION TO SUMMARY JUDGMENT (RJ &
SMJ) DEFENDANT'S PSYCHIATRIC DISCOVERY MOTION (Contro &
Cause?) Good cause element TRIAL JUDGE'S ARBITRATION ORDER (Rt Jury & Appealability) Appellate SMJ PLAINTIFF'S NEW TRIAL MOTION (NT & Trial Evidence) |
