CIV LIT PARA 97B FINAL EXAM STUDY GUIDE

DEPOSITIONS:

Oral question and answer sessions in which an attorney questions a deponent who answers the questions under oath.

o Court reporter creates tx;o Tx may be used as evidence at trial or in arbitration;o Not limited to parties

Timingo Different than other discoveryo Most discovery requests can be made by π 10 after ∆ is served;o For depositions, π wait 20 days before ‘noticing the ∆’s deposition’o ∆ may notice π’s deposition as soon as he receives complainto Discover not related to expert witnesses must be completed 30 days

before initial trial date; motions concerning discovery must be heard on or before 15th day prior to initial trial date

These dates are altered by stipulation and court ordero Depositions of expert witnesses must be taken on or before the 15th

day before initial trial date Motions concerning expert witnesses must be heard on or

before 10th day before initial trial dateo CH 5 White has excellent discovery deadlines chart

Depo types and procedureso Limited to seven hours, with several exceptions to extend, but only 7

hours in any given dayo Depo of party, appearance only

10 days notice; try to arrange with opposing counsel Location must be within 75 miles of deponent’s residence; or In the county of the action and 150 miles of dep’s res Schedule court reporter Notice of Taking Deposition

The notice advises all parties of the specifics

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Perfect model at 5-11 White Service of Notice of Taking Deposition

o Not filed with court; served on all partieso Send copies of POS form to all parties and

attorneyso Depo of party with Demand for Production of Docs

Materials and documents to be produced are specified in the Notice of Taking Deposition

Caption includes “Demand for Production of Documents for Inspection and/or Copying”

Same serviceo Depo of non-party; appearance only

Deposition for Subpoena for Personal Appearance (Jud Council form)

Copy of form in White binder at 5-19 Service:

CATCH: must be personally served Explain to friendly witnesses that this is necessary Prepare a check top cover witness fees and mileage

($35/day) Prepare same attorney service as for complaint, but now

check box for “Depo Subpoena” Serve all attorneys of record

o Depo of non-party for Appearance and Prod of Docs Used for custodian of records depos

For med recordso Serve a Deposition Subpoena on the Hospital: o Mandatory Jud Council Form: “Depostion

Subpoena for Personal Appearance and Production of Documents and Things”

o For any personal consumer records:

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The consumer must be served with a ‘Notice to Consumer” Mandatory Jud Con Form

The custodian of records must be served with proof that the consumer was served the Notice to Consumer

Scope of disclosureo General rule:

Discovery may be had of: Any matter not privileged, that is relevant to the claim or

defense of any party Includes: identity of persons having knowledge of

relevant facts Information need not be admissible at trial: only that it

may lead to admissible evidence CA has a more liberal standard: information must be

relevant to the subject matter involved in the pending action

o Work Product: Fed Court: that which an attorney or his agents make in

anticipation of litigation; As stated: only discoverable upon a showing substantial need

to avoid undue hardship CA has Work Product and qualified Work Product

For pure work product, CA has an absolute ban on discovery. Includes:

o Impressions;o Conclusionso Legal opinions

Qualified work product: may be discoverable upon a showing that denial of discovery will unfairly prejudice a

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party in preparing his claim or defense, or will result in injustice

o Includes draft reports of expertso Reports made in anticipation of litigationo BUT: attorney client privilege protects the actual

communications between attorney and expertso [[Trial preparation materials:

Work product is typically off limits Unless party can show: substantial need to avoid undue

hardship Still cannot get: mental impressions, opinions, and

conclusions]]o Experts

Testifying or consulting experts Testifying: opposing parties allowed to depose experts

who will be called at trial Consulting: those who were called in anticipation of

litigation but not testifying:o Opposing party can get only upon showing of

exceptional circumstances under which it is impracticable to obtain facts or opinions by other means

o In CA: a party need not disclose consulting experts Protective orders

May be obtained to limit nature and scope of examination; or To terminate discovery when discovery has been abused.

Electronic discovery

o Information, no matter how stored, falls under ‘document’ for CCPo 2009 Electronic Discovery Act o “Electronic”

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Electrical, digital, magnetic, wireless, optical, electromagnetic, or similar

o “Electronically Stored Information” Any information stored in an electronic medium

o CCP allows demanding party to specify the form in which the data is to be produced

o Responding party may objecto CCP has rules regarding protective orders

Provides courts with authority to set conditions for discovery of ESI

o Inadvertent disclosure Party who produced the ESI may notify receiving party of the

basis for privilege or protection Receiving party must either return the ESI, or present it to the

court under seal Receiving party may not disclose the information until privilege

claim is resolvedo Automatic erasure

ESI is frequently destroyed on a routine basis: backed up security videos, etc.

Parties have a duty to protect with a litigation hold, and to instruct employees properly

o If destroyed or altered: EDA (Elect Disc Act) has ‘safe harbor’ provisions

Protects people/entities from sanctions when information is lost due to routine, good faith operations

Proso Not limited to partieso Can require deponent to produce tangible things/documents

SDT ROGS: 3 specific types

o Contention rogs

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To elicit information about opponents allegations/defenses Their ‘contentions’

o Fact rogs For objective facts; basic stuff typically covered in the form

rogso Document rogs

To identify documents; Later, you will make a request for production to get copies of

the documents

Impleader is difficult, largely b/c of the nomenclature; good to use the cheat sheet here:

Impleader (third party practice)o A defendant may implead a nonparty who is or may be liable for any

part of a judgmento Claims for indemnity

Indemnity: duty to make good any loss, damage, or liability incurred by another

Think: insurance companyo Non-indemnity claims

Original defendant becomes third party plaintiff: Plaintiff because he is dragging someone new into the

suit, and that someone new had no previous commitment to indemnify

Original defendant is saying: this guy should be paying some of this

o Impleaded party responds: After being joined, the impleaded party is now a third party

defendant He can assert any defenses to the original plaintiff’s claim;

and/or

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He may assert any defenses against the third party plaintiff (the original defendant)

Joinder of Partieso Bringing together different parties into one law suito Compulsory and permissiveo Compulsory

Must be joined, if: The party’s presence is required to grant complete

relief; or The party has an interest in the action that must be

protected; or The party’s absence may expose other parties to double

obligations These are then ‘necessary parties’

If one or more necessary parties cannot be joined, the case will be dismissed, w/out prejudice

o Permissive Joinder When there is a legal or factual relationship between the

parties, making it sensible Can Join if:

o Party has a in interest in the property or controversy

o Class actions Individuals may be allowed to opt out of the

class and bring suit independentlyo Relief can be sought separately or jointly

Joinder of claimso A plaintiff can join any number and type of claims against a ∆;o With multiple π’s or multiple ∆’s, it is essential only that at least one

of the claims arises out of a transaction in which all were involvedo Successive claims

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Allowed: ex: a plaintiff joins two claims when success on the first is a prerequisite to the second

Suit for money damages and a suit to set aside a prior conveyance as fraudulent b/c of the debt on the prior claim

o Class actions Named representatives allowed to sue on behalf of a class, if:

Class is so large that joinder is impracticable; There are questions of law or fact common to the class; The named parties interests are typical of the class; The named representatives will ensure fair and

adequate representation of the interests of the class; and:

o Any of the following:o Risk of inconsistent results; oro Injunctive or declaratory relief is appropriate to

the class as a whole (civil rights cases); oro Common questions of law or fact predominate

over individual issues. Transfer of a party’s interest

With court approval, a new party can be substituted into a lawsuit: original party transfers claim to new party

RFA’S

Written requests from one party to another party asking the recipient to admit or deny each listed statement of fact; or

o As to the genuineness of docs

Motion: written request for a court order

Depending on motion, motions can be brought at any time during litigation

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Moving party seeks the order; drafts the motion telling the court what it seeks

The reasoning; the legal basis; Response: written opposition; why order should not be granted; Moving party can file a response to the opposition Court holds hearing after reading motions;

o Oral argument o Court makes rulingo However, there is typically a tentative ruling posted the night before

the hearing; if parties accept the tentative, the hearing is cancelled Parts of the motion:

o Notice of motiono MPAo Declarationo Exhibits

Notice:o Informs the court and parties what is being sought, when, and on

what groundso If seeking sanctions, must state in notice of motion

Timingo Typically: opposing party has 16 court days to respond

1st paragrapho Nature of motion and grounds for

MPAo Describes in depth what the motion is seekingo State facts o Cite authorityo For moving party

States issues and rule of law they want applied; Argue why the rule of law applies to your set of facts; Consistent (align); distinguish

Declaration

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o A written statement of facts signed under perjuryo The declarant: can be anyone, competent to testify, with first and

knowledge of the factso States basic facts for basis of motion or authenticates exhibits from

the MPAo Starts with: I declare under penalty of perjury….

Filing and servingo Served on parties and filed with the court

Bring check book Opposing

o Attack on any and all groundso Find all defects:

Improper format or notice Check citations and make sure they are valid and accurate

o Fight the legal arguments The job is to align and distinguish, so: Argue that the opposition’s interpretation is wrong, and why 15 page limit, but these limits are elastic

Replying to the oppositiono 10 page limit. Focused purely on the opposing arguments

Proposed ordero Provided with the motion (if applicable) and, hopefully, signed by the

judge Ex parte applications

o When requesting something from the court that does not directly involve the other party

Time extension/shorteningo No Notice sectiono State the reasoning for ex parte application

E.g.: irreparable harm; immediate danger; witness protectiono Submit proposed ordero DO NOT serve or notice opposition

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o Presented to clerk only

ADR

Arbitrationo More formal than mediation; less formal than trialo Types:

Voluntary non-judicial Mandatory judicial Voluntary judicial

Voluntary non-judicialo Not court supervisedo Available at any time during litigationo Anyone agreeable to parties; usually retired judgeso Private contractual Arbitration

When K specifies arbitration Usually sets out parameters Typically ‘binding’

No right to trial or appeal; but, can still challenge under error

Judicial Arbitration: mandatory or voluntaryo Superior court cases $50k or less are sent to arb

= mandatory judicial arbo Other cases parties may choose to submit to arb

= vol jud arbo Rules:

Is court supervised, but not in court room Informal; no TX Non-binding unless agreed to otherwise Procedural rules are set by Rules of Court Arbitrator has same power and immunities as a judge Special rules for judicial arbitrations

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Relaxed rules of evidence: most credible evidentiary items are allowed, if submitted at least 20 days prior to arbitration hearing

Can subpoena and cross witnesses, and/or use depo tx’so Arbitrator’s discretion

Usually no pre-set limits on award; arb makes decision Can be pre-bracketed

Mediationo Ordered or stipulatedo Very informalo Goal is settlemento Typical arrangement

Both sides meet the mediator for introductions and very basic framework

Then, the parties split up and do not see each other again; the mediator shuttles between rooms;

All offers are confidential, and cannot be used as evidence at a subsequent trial

o Mediation has very few risks; nothing is binding until both parties agree

o Even short of resolution, mediation can help to narrow issues before moving forward

Settlemento MSC (mand sett conf)

At request of party or sua sponte Judge, parties, attorneys

o After discovery, three weeks before trialo All confidential; the MSC judge will never be the trial judgeo Mandatory settlement conference statement

Π submits Good faith settlement demand ∆ submits Good faith settlement offer

o If settlement is reached

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Judge states settlement On the record – open court with reporter

Statutory offers to compromiseo 998 offer (CCP § 998)o To promote acceptance:

If offer is refused, and the refusing party does not do better at trial, that party may have to pay post offer costs

At least 10 days prior to trial or arb Must be accepted in writing within 30 days after service, or

offer is deemed withdrawn Offer not admitted at trial, but can be when determining

allocation of costs When settlement is reached

o Parties draft and sign formal settlement agreement (ch 8 white)o Notice court: mand Jud Council Form “Notice of Settlement of Entire

Case”o All parties and engaged persons/entities are notifiedo Mand Jud Council Form: Request for Dismissal”

How are disputed issues framed?o Pleadings, discovery responses, and motions

Commanding appearance of non-party witnesseso Appearance only:

Preparing and personally serving Jud Council form “Civil Subpoena at for Personal Appearance a Trial or Hearing”

o Appearance and production: Preparing and personally serving Jud Council Form “Civil

Subpoena (Duces Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration.”

Prepare witnesseso Refresh memory; calm them down

Drafting, filing, and serving Motions in Limine

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Select and prepare jury instructions Prepare trial notebooks/binders

o Witnesses; expert and layo Questions ; direct and crosso Evidence

Requesting and selecting a juryo Requested when completing “Case Management Statement”

In practice, you put your demand for jury trial in the complaint as well

o Jury fee deposit with court clerk Voir Dire

o The process of questioning and selecting a juryo Challenges

For cause: Requires attorney to provide reason for removal;

unlimited, but Judge can overrule Peremptory:

Remove potential juror without giving reasono 6 for each side of the v

Jury is impaneled and seated:o Opening statements: π then ∆o Witness testimony and cross

Π’s case in chief ∆’s case in chief - optional

o Closing arguments: π then ∆ Surrebuttal: at judges discretion

o Jury instructionso Verdict

Opening statements:o Not evidence, and you cannot argue lawo Summarize evidence to be presented and issues to be coveredo Is first of two times you get to talk directly to the jury

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Directo Questioning witnesses to establish prima facie caseo No leading *

Suggests the answer Cross

o Impeach Credibility, memory, bias

o Limited to scope of directo Can leado Redirect and recross

Π rests Motion for non-suit: think: nonsense motion Defendant’s case in chief Motion for directed verdict

o Again, saying that the π’s case fails Closing arguments

o Last chance to speak directly to juryo Π, ∆, π

Jury instructionso Hugely important

General verdicto One side victorious; nothing more

Gen Ver with special rogso Jury finds for one party, and answers the basis of their decision

Special verdicto Jury decides only factual questions submitted by the judgeo Judge applies the law

Clerk enters judgment “On the Record” Reimbursement of costs

o Jud Council Form: Memorandum of Costso Timing changes based on hoe judgment is entered and recorded; you

will be told at the end of trial the due dates

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o Other party responds with “Motion to Tax Costs” Claiming that party is not entitled to all the costs it wants

Post trial motionso Motion Non-Obstante Verdicto

JNOV: asks judge to enter verdict contrary to jury’s Says jury misunderstood the law Very difficult to win

o Motion for new Trial Claims error at trial Is necessary step before appeal

o Motion to Vacate judgment Relates to special verdict cases; claims that judgment is not in

line with special verdict findingso Motion to Stay Enforcement of Judgment

Allows time to appeal

CIV LIT PARA 97B CH’S 21 & 22

APPEALS

Every party has a right to appeal it’s ruling; there is no right to state or US Supreme Court review

o Appeal is not a new trial; it is a review of the trial for error Winning side can appeal: the amount of the award, COA’s that were struck Appellant / Respondent or Appellee Notice:

o Notice of appeal is filed in the Superior Court of the actiono 60 days after notice of Judgment; but,o If either party files post-trial motions, the clock is tolled o Untimely= Appellate Court has no JX; no appeal can be heard

Record on Appealo Creating record for appeal is part of trial practiceo Appellant narrows record on appeal; designates what parts he wants

reviewed

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Reporters TX; Clerk’s records Tangible evidence

Briefso Very formal; sloppiness can lead to dismissal of appealo Appellant informs the court:

Statement of facts; Points out the errors; Points out bases for reversal

o Respondent: Files in opposition Addresses the alleged errors; Argues that they did not exist or were harmless

o Amicus curiae Interested parties request leave to file informative briefs Not typical; mostly very large cases or political challenges

Appellate courto 3 judge panel – can request en banc, but is rarely grantedo Prejudicial error

There is always error; the question is was it prejudicial or harmless

o Standards of review De novo

Court reviews question(s) on its own No deference given to lower court For when the trial court has removed the jury from the

decision Abuse of discretion

Judges have great discretion re evidence; Here, lower courts are given great deference, and

overturned only on a showing of abuse of discretion Substantial evidence standard

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For certain decisions, as long as substantial evidence supported the trial judge’s decision, it will stand

Award calculations; basic facts Affirm; reverse with new ruling; reverse and remand (hold another trial

with new instructions)

CH 22

Enforcement of Judgment

Here, judgment refers to the award and its value Judgment creditor (the winner) must get the money from the Judgment

debtor Process:

o Identify the judgment debtor’s assetso Seizing money

Bank levy; Wage garnishment; Keeper levy; from ‘cash drawer’ ; daily business take

o Seizing property Property is seized by court; sold, and cash pays down debt

o Liens Title is clouded by lien, and money is taken upon sale or

transfer of property Debtor protections

o There are several; o Primary home;o Primary automobile;o Life’s necessities;

Post judgment discoveryo Interrogatories and RFP’so Debtor exam: court appointed probe of assets

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Creates lien on personal property for one year Court has contempt power if debtor fails to appear

o Private I Placing the lien

o Abstract of judgment: Jud Council Form; filed with county recordero On real property: lasts 10 yearso is not property specific: hence filing with county recordero once recorded with county

constitutes notice to the public purchasers are required to yank the chain of title

ergo; the lien makes the property non-saleable o on personal property

file notice of judgment with secretary of state lasts five years; not nearly as effective since most personal

property is sold without reference to license or title levying assets

o levy allows seizure and sale of assetso apply for writ of execution with the courto sheriff or marshal enforces judgment

with bank levy; till tap; taking on hand cash at business install a keeper; watches the business first hand and collects a

percentage wage garnishment

second application to court employer is directed to withhold percentage and send to

levying officer satisfaction of judgment

o judgment creditor is required to file an Acknowledgement with the court;

this removes the liens and levieso with partial satisfaction

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upon request of judgment debtor; JC files an Acknowledgement to the point of satisfaction

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CIV LIT PARA 97 B CH 16

IME’S

Independent Medical Examination o Exams of a Π (or cross complainant) claiming a physical or mental

injury When Π puts his mental or physical condition at issue = claiming damages

for injury o Triggers right in defendant to demand one IME

Nothing painful, protracted, or intrusive w/in 75 miles of examinee’s residence

o Do not need court order for PE in CA Need CO for second exam

Demand for IME is made in writing and served on all parties At least 30 days prior to date of examination Pros

o Only way to assess other than trusting Π’s claims and Π’s expertso Puts Π on notice that he will be examined; threat of can encourage

settlement Cons

o Very expensiveo Plaintiff gets copy of report – might buttress Π’s claim

Responding to demando Required within 20 days after service of demando Indicated that examinee will do one of:

Comply with demand as stated Comply with demand as specifically modified by examinee Refuse

Specify reasons in response Served on all parties

Conduct

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