1 / 194

Advanced Civil Litigation

Advanced Civil Litigation. Joanne Hames Winter 2014. Introduction. California Supplement Douglass Financial Services Case Class Website: www.deanza.edu/faculty/hames. Advanced Civil Litigation. Civil Lit A: Jurisdiction, pleadings, motion

simone-crosby
Download Presentation

Advanced Civil Litigation

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Advanced Civil Litigation Joanne Hames Winter 2014 (c) Joanne Hames

  2. Introduction • California Supplement • Douglass Financial Services Case • Class Website: • www.deanza.edu/faculty/hames (c) Joanne Hames

  3. Advanced Civil Litigation • Civil Lit A: Jurisdiction, pleadings, motion • Civil Lit B: Proving the case: Investigation, Discovery and Trial (c) Joanne Hames

  4. Pre-discovery Procedures • Preliminary investigation by each side • Pleadings filed and served • Summons & Complaint • Answer (or Demurrer or Motions) • Cross Complaints and Answers • Case management or other conferences • Possible ADR (c) Joanne Hames

  5. Preliminary Investigation • Client Interview • Locating and interviewing fact witnesses • Locating and interviewing expert witnesses for your client • Investigating all expert witnesses (c) Joanne Hames

  6. The Client Interview • Be Prepared • Find out as much about case as possible before • develop interview form or checklist • Bender Forms of Pleading and Practice • Determine Location • Gather forms for client signature • Retainer Agreement • Releases (c) Joanne Hames

  7. Client Interview, cont • Run conflict check prior to interview • Paralegal Role • Note taking • Written memorandum (c) Joanne Hames

  8. Client Internet Social Networks Commercial Internet Sites accident reports court records DMV Friends/neighbors telephone book county assessor/recorder Ambulance co. Advertisements If a corp: Secretary of State Locating Fact Witnesses/Defs (c) Joanne Hames

  9. Court Records • PACER • Federal court documents • California Courts • Individual Court Web sites • Lexis/Westlaw (c) Joanne Hames

  10. Interview Techniques • Always Identify yourself and who you represent • Prepare ahead of time: have form or checklist • Avoid leading questions • Take copious notes or with permission, record (c) Joanne Hames

  11. After the Interview • Prepare statement for witness signature • Prepare memo summarizing findings and observations. • Statements under penalty of perjury • Not admissible at trial except to impeach (c) Joanne Hames

  12. Rules of Evidence • Importance to investigation, discovery and litigation • Different rules apply • Litigation: Must follow all rules of admissibility and be relevant • Discovery: Must be relevant and not privileged • Investigation: Anything goes (c) Joanne Hames

  13. Evidence • How you prove your point • witnesses • records • documents • exhibits • objects • photos (c) Joanne Hames

  14. Evidence • Direct: evidence the witness personally observed; if believed it proves your point • circumstantial: evidence from which an inference can be drawn (c) Joanne Hames

  15. FORMS OF EVIDENCE (c) Joanne Hames

  16. Rules of Evidence • Federal: In Federal Rules of Evidence • State: California Evidence Code • Very similar (c) Joanne Hames

  17. Relevance • All evidence must be relevant • tends to prove the point you are using it for • Not all relevant evidence admissible • privileges • probative value outweighed by prejudice of time (c) Joanne Hames

  18. Documentary Evidence • Authentication/foundation • document is what it purports to be (photos, writings, etc.) • Self-Authentication: • certified copies of public documents/judicial notice • Best Evidence rule (c) Joanne Hames

  19. ESI • Electronically Stored Information • Information created or stored in electronic format, including computer generated documents, email, web pages and the like. • Law is in transition (c) Joanne Hames

  20. Hearsay • Generally discoverable • Inadmissible at trial unless it comes under one of the many exceptions. • Out of court statement used to prove the truth of the matter asserted. • Exceptions: • State of mind • excited utterance • business records -declaration against interest impeachment (c) Joanne Hames

  21. Privileges • Attorney/client • doctor/patient • clergyman/pentitent • trade secrets • government secrets • Constitutional privileges • Work Product (c) Joanne Hames

  22. Expert Witnesses • Purpose: Can give an opinion in their area of expertise • Paralegal Role: • Locating Experts • Interviewing • Researching credentials • Researching prior litigation (c) Joanne Hames

  23. Preserving Evidence • Integrity of evidence must be preserved • Evidence log • Preserving potential ESI • Litigation holds (c) Joanne Hames

  24. SCOPE OF DISCOVERY-Relationship to Rules of Evidence • ALL RELEVANT INFORMATION Admissible evidence or evidence that might lead to admissible evidence • NOT OTHERWISE PRIVILEGED (c) Joanne Hames

  25. Paralegal Role • Preparing for discovery/disclosure • Drafting discovery requests • Responding to discovery requests • Client interviews • Document reviews (relevancy & privilege) • Reviewing/summarizing discovery responses • Drafting and responding to motions • Integrating discovery into case management software (c) Joanne Hames

  26. State v. Federal • California— • CCP §§ 2016.010 et seq • California Rules of Court • Case Law • Federal • Federal Rules of Civil Procedure • Local Rules of Court • Case Law (c) Joanne Hames

  27. Methods of Discovery • Disclosure (Federal Only) • Interrogatories • Depositions • Requests to Produce • Medical Exams • Disclosure of Expert Witness Information (c) Joanne Hames

  28. Disclosure v. Discovery • Disclosure • Federal Court Only (Rule 26) • Automatic exchanges of information • Discovery • Both state and federal courts • Not automatic—requires a request (c) Joanne Hames

  29. PROPOUNDING PARTY--REQUESTING PARTY RESPONDING PARTY DOCUMENTS NOT FILED WITH COURT PROPOUNDING PARTY KEEPS ORIGINALS DISCOVERY IN GENERAL (c) Joanne Hames

  30. Forms of Discoverable Information • Testimony of Parties • In writing • Personal questioning (depositions) • Testimony of Witnesses • Personal questioning • Documents • Evidence Code Definition • ESI • Electronically stored information (c) Joanne Hames

  31. E-Discovery • New aspect of traditional discovery • Electronic documents • Hardware used to create electronic docs • New Federal Rules of Civil Procedure (2006) • New State Codes—California Electronic Discovery Act (2009) • http://www.nixonpeabody.com/publications_detail3.asp?ID=2815 (See California e-discovery….) (c) Joanne Hames

  32. Scope of Cyber Evidence Digital vs. Non-Digital Digital Non-Digital • Over 93 percent of all information generated in 1999 was in digital format. (In Re Bristol-Myers Squibb Securities Litigation 205 F.R.D. 437, 440, fn2 (2002) [citing UC Berkeley Study]) (c) Joanne Hames

  33. What is potential digital evidence? • User-Created Files • Address Books • Email files • Audio/Video files • Image/graphics files • Calendars • Internet bookmarks/favorites • Database files • Spreadsheet files • Documents and text files (c) Joanne Hames

  34. What is potential digital evidence?User-Protected Files • Compressed Files • Misnamed files • Encrypted Files • Password-Protected Files • Hidden Files • Steganography (c) Joanne Hames

  35. What is potential digital evidence?Computer Created Files • Backup files • Log files • Configuration files • Printer spool files • Cookies • Swap files • Hidden files • System files • History files • Temporary files (c) Joanne Hames

  36. Where do I look for it? (c) Joanne Hames

  37. Where do I look for it? (c) Joanne Hames

  38. Where do I look for it?Hardware • Stand alone computers vs. Local Area Networks • Wired vs. Wireless • Printers • PDAs; i.e.. Palm, Handspring, CIE • Digital Cameras • Scanners (c) Joanne Hames

  39. Where do I look for it?Storage • Hard Drives • SCSI and EIDE • USB and FireWire • Floppy Disks • LS120s • Iomega media, i.e.. Zip, Jaz, Peerless • Memory Sticks (c) Joanne Hames

  40. Where do I look for it?Storage (cont’d) • CDs • DVDs • Backup Tape (c) Joanne Hames

  41. Data StorageHard Drives Data is stored on the surface of a platter in sectors and tracks. Tracks are concentric circles, and sectors are pie-shaped wedges on a track, like this: (c) Joanne Hames

  42. Data StorageFloppy Disks The computer program passes an instruction to the computer hardware to write a data file on a floppy disk, which is very similar to a single platter in a hard disk drive except that it is spinning much slower, with far less capacity and slower access time. (c) Joanne Hames

  43. E-Discovery Issues • Does it exist • Is it discoverable • Who pays for the discovery • Is it admissible at trial (c) Joanne Hames

  44. Is ESI discoverable? • Rule 26 expressly includes ESI as being subject to disclosure and discovery • Relevant—or leads to admissible evidence (c) Joanne Hames

  45. Cost • Often a contentious issue • Court ultimately can decide • Zubalake cases (c) Joanne Hames

  46. Discoverable Information: Admissibility at trial • Discoverable does not equal admissible • Requires foundation • Authentication • Best evidence rule • reliable (c) Joanne Hames

  47. MUTUAL DISCLOSURERULE 26 • INITIAL DISCLOSURES • DISCLOSURE OF EXPERTS • PRETRIAL DISCLOSURES (c) Joanne Hames

  48. PRETRIAL DISCLOSURES • NAME, ADDRESS, PHONE OF EACH WITNESS AND WHETHER THEY WILL BE CALLED • WITNESSES THROUGH DEPOS AND COPY OF TRANSCRIPT • IDENTIFICATION OF EACH DOCUMENT OR OTHER EXHIBIT TO BE OFFERED (c) Joanne Hames

  49. INITIAL DISCLOSURES • NAME, ADDRESS, PHONE OF ANYONE LIKELY TO HAVE RELEVANT AND DISCOVERABLE INFO. • COPY OR DESCRIPTION OF ALL DOCUMENTS OR OTHER TANGIBLE THINGS IN PARTY’S CONTROL (c) Joanne Hames

  50. INITIAL DISCLOSURES (CONT.) • COMPUTATION OF DAMAGES CLAIMED • COPIES OF INSURANCE AGREEMENTS • See File: Initial Disclosure….. (c) Joanne Hames

More Related