Claim Adjustor Role
- investigates potential dispute & with consent of potential defendant, attempt settlement.
- May attempt disposition of the claim with claimant directly
Work product
trial preparation materials; items “prepared in anticipation of litigation or for trial; limited protection; are discoverable only of “substantial need” and “undue hardship”
initial Interview of plaintiff
Thorough interview, many attorneys use data collection forms analogous to those used in claim file; Some types of practice (divorce, compensation, collection, and some types of personal injury work) lend themselves well to standardized data collection
Double entry calendar
one in which two people, usually attorney and secretary separately enter upcoming dates as well as long range dates; scheduling is important to the litigation lawyer
Demand Letter
letter informing defendant of one’s demand
Fee Agreement
One of the cardinal rules of good practice; establishes relationship; takes care of financial matters; prevents malpractice through misunderstandings; inclusion of these matters is typical:
- authorization to pay expenses on behalf of the client
- explicit statement that such expenses are to be reimbursed by the client
- A list of obligations of the client (appear depos.; furnish info; tell truth; don’t insist illegal or unethical action)
- Explicit statement that if nothing recovered, nothing is owed.
- matters covered in contract
Medical authorization
health providers will not release info without patient authorizations. What many attorneys do obtain clients signature on many at once in case of multiple dr., etc.
Dominguez Complaint
Jurisdiction, Venue, Complaint with claim and facts, Dominguez looked like a cause of action
Dominguez Service
Designated secretary (not party or attorney), sent to Secretary of State with check by restricted certified mail; got back certificate, which Elder filed with sworn return by secretary (process server)
Dominguez Motion to Dismiss
- Motion to dismiss because complaint fails to state a claim against defendant upon which relief can be granted
- Motion to strike portion of complaint because allegation fails to give notice of any statutory laws or ordinances allegedly violated, and therefore insufficient.
- Motion for more definitive statement “” insufficient to give notice.
Dominguez Pleadings
must be supportable by arguments of law and fact based on a reasonable investigation; Defense want more specificity to limit parameters of claim and find out more about the claim
Dominguez Docket Control Order
Had date for final joining, discovery, motion cut off and pretrial order
Dominguez Request for Admissions
Was relatively short, used mainly to determine if they had sued the right defendant
Dominguez Written Discovery
Artform; if too narrow, responses may be technically correct but misleading; If too broad, responses also may be misleading, but or meaningless; assume answered by opposing council; Elder uses three differently worded questions to find out the same thing
Dominguez Setting up deposition
Need notice of time and place for parties; case had single defendant and plaintiff; was done by exchange of letters; impolite to pick a day without consulting the adversary
Dominguez coverage of the deposition
Defendant’s attorney wants to find out about plaintiff’s case and freeze testimony is sworn form
Dominguez deposition basic parts
initial assurance that plaintiff understands what deposition is about (to enhance impeachment function); plaintiff’s background and history; incident itself, including relevant preceding and following events; and coverage of the various possible elements of damages
Dominguez deposition techniques
Funnel sequence (T-funneling)- useful for discovery and for interviewing
- Start broadly with opened ended questions- what happened? (encourages the witness to narrate, which results in fuller discovery)
- Encourage continued narration by prompting.
- When narrative potential is exhausted, then shift to more specific questions
- Other notes- Sometimes interruption is necessary to finish the deposition in time; technique of leaving a subject and returning to it
Dominguez whom to depose
usually only adverse witness (or those unlikely to be available for trial); here, Elder had to ask a few questions because it might have given reason for summary judgment; also little deposition was taken on either side for economic considerations
Dominguez timing final pleadings
Plaintiff got extension for filing of final pleading until after depositions so as to be able to make sure complaint matched with discovery
Dominguez tactical use of specificity in pleadings
Sometimes it is better to be more specific so that the defendant has to admit or deny each allegation in good faith.
But general pleading is good also because proof can develop unpredictably at trial and unduly confining allegation of a claim may create a variance between allegation and proof.
Dominguez Answer
Uses admissions and denials and a affirmative defense
Dominguez Jury demand by defendant
Defendant has more experience, jury is more affected by experience and skill; also defendant’s attorney mays suspect that it will be easier to enforce exclusionary rule of evidence before a jury (hoping for JMOL)
Dominguez Summary Judgment
that pleadings, depositions, answers to interrogatories so genuine issue to material fact and that defendant is entitled to judgment as a matter of law; also wrote brief using IRAC
Dominguez Setting the case for trial
unless familiar, many opponents engage local counsel. in case, judge who ruled on pleading and discovery not the same as the one who will preside over the case. Wasted resources as new judge learns case and less incentive to make definitive pretrial rulings. Process also leads to multiple resettings of the case, discouraging careful preparation and creating difficulties for parties and witnesses. A more typical is initiation of trial settings by the judge, together with vigorous use of pretrial conferences.
Dominguez multiple resetting of case for trial
Due to multiple resetting, case dragged on for two years before being tried.
manager and assistant manager had left defendant’s employ and no customer could be found who recalled the condition of the carts.
Dominguez motion in limine
other party cannot mention certain subjections; in this case, insurance and offers or refusals to settle
Dominguez hearsay (Rules of evidence)
hearsay is exclusion to evidence and can be spoken or documents that embody hearsay, but has exemption in records of regularly conducted activity. i.e., accounting books, medical records.
Dominguez goals and tactics of voir dire
- asking questions to find out about disqualifications or orientations of the juror (most obvious purpose)
- Giving jurors a selective preview of the evidence
- Defining legal terms in a favorable manner
- Building rapport or injecting prejudice
- injecting inadmissible evidence
- Condition jurors to accept proof.
Purposes may be ethical, marginal, or some flatly improper. Few guidelines; judge has discretion
Dominguez label v. individual characteristics
Plaintiffs strikes are carbon copies of each other on “label” characteristics. All managerial, caucasian anglo, male, middle aged, educated, married w/ families, reside in suburbs. Difficult to obtain reliable information by individual inquiry within the time reasonably allotted necessitates use of gross characteristics; each part gets 3 pe challenges; multiparty allow more
Dominguez removal for cause
Questioning is an artform; the juror must be induced to make statements showing a bias or prejudice that cannot be set aside.
Technique: appeal to jurors integrity and make forthrightness appear commendable
Strategy: Identify jurors they wish to remove and initiate process of obtaining responses leading to disqualification
Dominguez examination by judge or attorneys
Attorneys-showboating personality contest that detracts from the determination of the case by law on evidence
Judge-rarely vigorous, informed, or likely to ferret out prejudice as examination by the attorneys.
Court has broad discretion; common practice in federal court; judge does; attorneys submit written questions
Dominguez Evidence
Rules of evidence are important to a trial attorney; exposed to:
- hearsay rule of exclusion
- hearsay exceptions
- the requirements of personal knowledge unless the the witness is an expert
- relevance
- the form of examination (including the preference for non-leading questions on direct examination)
- Impeachment by use of a prior inconsistent statement
Dominguez discretion in evidence rulings
Rules of evidence allow the judge considerable discretion. i.e. admissibility of testimony regarding baskets other than those that injured plaintiff, on days other than the incident in question
Dominguez Objections
The party with the burden of proof is typically attempting to introduce evidence; the opposing party ordinarily uses the rules of evidence to exclude as much evidence as possible; rules regarding hearsay, personal knowledge, and leading questions can sometimes significantly hamper the examination of unsophisticated witnesses.
Dominguez Method and sequence of direct examination
Many observers believe direct examination is more important and more difficult. Plaintiff’s attorney needs to have skill at controlling the examination and rephrasing questions so that evidence is received and understood.
Skillful direct examination is an art but includes following elements:
1. identification of the witness and placement of witness in context
2. clear designation by date and time of the event in question
3. questions that produce the story in chronological order
4. use of simple terminology and graphic details
5. re-orientation of the jury when the subject of examination shifts or when technical questions, such as evidentiary predicates, are at issue
Dominguez defendant’s evidence
Defendant is not required to present evidence under these circumstances, but it did so in this case. This evidence was not helpful and inadvertently strengthened the plaintiff’s case. Even careful preparation is insufficient to avoid that result
Dominguez JMOL made after trial
more likely to be granted (since it would be made after the trial and would allow for time for research and briefing and for considered reflection by the court.)
Dominguez preparation of the charge
prior to jury argument, the attorneys submitted requested written charges. The judge adopted the special interrogatories proposed by each respective party, but used standard form definitions and instructions. The judge must inform the attorneys of his action on their requested charges. In this case, the judge furnished them with a written charge before argument began.
Dominguez General charge, special interrogatories, or both?
Trial judge has discretion in choosing a general charge or special interrogatories.
General charge consists of instruction on the law, plus a verdict for plaintiff or defendant
Special interrogatories consist of questions on the fact issues
Dominguez special interrogatories adv/disadv
adv- control the jury, require a verdict in accordance with the law and evidence more rigorously than the general charge, and provide reviewable findings
Disadv- depend heavily upon the precision of language and careful drafting. Breaking down a claim into its consistuent elements, and formulating them in an intelligible way, is not always feasible
Dominguez general charge adv
adv-avoids violation of common sense and permits the jury’s traditional function of rounding the rough edges of the law
Dominguez structure of the charge
charge using special interrogatories generally consist of three types of elements
- General instructions
- Definitions of legal principles
- Special interrogatories accompanied by verdict forms
Dominguez strategy of drafting the charge
Court frequently prepares from submissions by the attorneys. At conclusion of evidence, judge will recess jury and retire to chambers with attorneys to discuss charge. In this case the judge adopted substantially the submissions made by the attorneys.
There is strategy involved; for contributory negligence issues; defendant ask whether the plaintiff failed to exercise ordinary care, plaintiff ask whether defendant was negligent
Dominguez objections to the charge
Not reversible if not objected to
Dominguez order of charge and argument
Judge must notify attorneys concerning its ruling on each requested charge prior to argument; written charge not required, may be oral
Dominguez jury argument
argument is very important. Correlation of raw evidence, reasonable inferences, and legal standards is function
- illustrate the significance of the evidence
- persuade the jury of the desired conclusions from the evidence
- Put the evidence together with an explanation of the often-confusing legal terms in the courts charge.
- Includes important emotional content. Although controversial, is essential, because most legal conceptions express, at their core, fundamental societal values, which cannot be effectively explored without emotional argument.
Dominguez structure of jury argument
- Plaintiff opens and closes due to having the burden of proof
- Plaintiff-Short intro praising jury system, explanation of definitions and instructions in the charge, followed by an analysis of special interrogatories and a marshalling of the evidence to produce the desired result in each
- Defendant-rebut a few select points made by plaintiff, proceed to explain the charge, marshal the evidence from the defendant’s view on each special issue, advocate the conclusion desired by defendant on each, and give the jury the emotional basis for the holding.
- Plaintiff rebuttal argument reiterate major points during opening, unleashes the plaintiff most powerful emotional basis for the desired holding
Dominguez verdict
state law required a non-unanimous verdict 10 of the 12; federal courts require a unanimous verdict
Dominguez perfecting the appeal, scheduling
perfection of an appeal requires the satisfaction of certain requirements- including notice of appeal, filing of a cost bond, preparation and filing of the record, filing of appellant’s brief, in addition to requirements imposed by the local rules of the particular appellate court. Each requirement is subject to a time limit. A careful attorney prepares a t time schedule at the commencement of the appeal to ensure that he complies with time requirements
Dominguez oral argument on appeal
Many appellate courts consider oral argument less important than is popularly supposed, and the court of appeals in this case invoked a local rule enabling it to determine the case on briefs along
