PLST 200 Reading - 2 pages -Due -24hrs
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Chapter10reading.docxChapter Objectives
After completing this chapter, you will know:
· The basic steps involved in the civil litigation process and the types of tasks that may be required of paralegals during each step of the pretrial phase.
· What a litigation file is, what it contains, and how it is organized, maintained, and reviewed.
· How a lawsuit is initiated and what documents and motions are filed during the pleadings stage of the civil litigation process.
· What discovery is and what kinds of information attorneys and their paralegals obtain from parties to the lawsuit and from witnesses when preparing for trial.
Every paralegal should be acquainted with the basic phases of civil litigation and the forms and terminology commonly used in the process. The paralegal plays an important role in helping the trial attorney prepare for and conduct a civil trial. Preparation involves a variety of tasks including:
· Carefully researching relevant law.
· Gathering and documenting evidence.
· Creating and organizing the litigation file.
· Meeting procedural requirements and deadlines for filing documents with the court.
Preparing witnesseswitnessesA person who is asked to testify under oath at a trial. 10-1Civil Litigation—A Bird’s-Eye View
Although civil trials vary greatly in terms of complexity, cost, and detail, they share similar structural characteristics. They begin with an event that gives rise to the legal action, and (provided the case is not settled by the parties at some point during the litigation process—as most cases are) they end with the issuance of a judgment-The court’s final decision regarding the rights and claims of the parties to a lawsuit. , the court’s decision on the matter. In the process, the litigation itself may involve many twists and turns. Even though each case has its own “story line,” most civil lawsuits follow some version of the course charted in Exhibit 10.1.
What is That?
10-1a Pretrial Settlements
In most cases, the parties reach a settlement—an out-of-court resolution of the dispute— before the case goes to trial. Lawsuits are costly in both time and money, and it is usually in the interest of both parties to settle the case out of court. Throughout the pretrial stage of litigation, the attorney will therefore attempt to help the parties reach a settlement. At the same time, the attorney and the paralegal must operate under the assumption that the case will go to trial, because all pretrial preparation must be completed prior to the trial date.
10-1b Procedural Requirements
Understanding and meeting procedural requirements are essential in the litigation process. These requirements are set out in the procedural rules of the court in which a lawsuit is brought. Civil trials held in federal district courts are governed by the Federal Rules of Civil Procedure (FRCP) . These rules specify what must be done during the various stages of the federal civil litigation process. For example, Rule 4 of the FRCP describes the procedures that must be followed in notifying the defendant of the lawsuit.
Each state also has its own rules of civil procedure (which in many states are similar to the FRCP). In addition, many courts have their own rules of procedure that supplement the federal or state rules. The attorney and the paralegal must comply with all of the rules of procedure that apply to the specific court in which the trial will take place.
Change fon
10-1c A Hypothetical Lawsuit
To illustrate the procedures involved in litigation, consider a hypothetical civil lawsuit. The case involves an automobile accident in which a car driven by Tony Peretto collided with a car driven by Katherine Baranski. Baranski suffered injuries and incurred substantial medical and hospital costs. She also lost wages for the five months in which she was unable to work. Baranski has decided to sue Peretto for damages. Because Baranski is the person bringing the lawsuit, she is the plaintiff. Peretto, because he must defend against Baranski’s claims, is the defendant. The plaintiff and the defendant are referred to as the parties to the lawsuit, as discussed in Chapter 5. (Some cases involve several plaintiffs and/or defendants.)
The attorney for the plaintiff (Baranski) is Allen P. Gilmore. Gilmore is assisted by paralegal Elena Lopez. The attorney for the defendant (Peretto) is Elizabeth A. Cameron. Cameron is assisted by paralegal Gordon McVay. Throughout this chapter and the following two chapters, Case at a Glance features in the page margins remind you of the names of the participants in this lawsuit.
10-2 The Preliminaries
Katherine Baranski arranges to meet with Allen Gilmore, an attorney with the law firm of Jeffers, Gilmore & Dunn, to see if Gilmore will represent her in the lawsuit. Gilmore asks paralegal Elena Lopez to prepare the usual forms and information sheets, including a retainer agreement and a statement of the firm’s billing procedures, and to bring them to the initial interview with Baranski. Gilmore also asks Lopez to run a conflicts check (see Chapter 4) to ensure that representing Baranski in this action will not create a conflict of interest.
10-2a The Initial Client Interview
Most often, the attorney—for several reasons—conducts an initial client interview. First, if attorney Gilmore is interested in taking on a new client, he will want to explain to the client the value of his services and those of his firm. Second, only an attorney can agree to represent a client. Third, only an attorney can set fees, and if Gilmore takes Baranski on as a client, fee arrangements will be discussed, and possibly agreed on, during the initial client interview. Finally, only an attorney can give legal advice, and the initial client interview may involve advising Baranski of her legal rights and options. In short, what transpires during the initial client interview normally falls under the umbrella of “the practice of law,” and, as you read in Chapter 4, only attorneys are permitted to practice law.
Because attorney Gilmore and paralegal Lopez will be working together on the case, Gilmore asks Lopez to sit in on the interview. Gilmore wants Lopez to meet Baranski, become familiar with Baranski’s claim, and perhaps make arrangements for follow-up interviews with Baranski should Gilmore take the case.
Collecting Facts
During the initial client interview, Katherine Baranski explains to attorney Gilmore and paralegal Lopez the facts of her case as she perceives them. Baranski tells them that Tony Peretto, who was driving a Dodge van, ran a stop sign and crashed into the driver’s side of her Ford Fusion as she was driving through the intersection of Mattis Avenue and Thirty-eighth Street in Nita City, Nita. The accident occurred at 7:45 a.m. on August 4, 2016. Baranski has misplaced Peretto’s address, but she knows that he lives in another state, the state of Zero. Baranski claims that as a result of the accident, she has been unable to work for five months and has lost about $20,000 in wages. Her medical and hospital expenses total $95,000, and the damage to her car is estimated to be $15,000. Throughout the initial interview, Lopez takes notes to record the details of the case as relayed by Baranski.
Release Forms
Gilmore agrees to represent Baranski in the lawsuit against Peretto. He explains the fee structure to Baranski, and she signs the retainer agreement. Gilmore has Baranski sign forms authorizing him to obtain relevant medical, employment, and other records relating to the claim. (These release forms will be discussed in Chapter 11.) At the end of the interview, Gilmore asks Lopez to schedule a follow-up interview with Baranski. Lopez conducts that interview and obtains more details from Baranski about the accident and its consequences.
10-2bPreliminary Investigation
After Baranski leaves the office, attorney Gilmore asks paralegal Lopez to undertake a preliminary investigation to get as much information as possible concerning the facts of Baranski’s accident. Sources of this information will include the police report of the accident, medical records, employment data, and eyewitness accounts of the accident.
You will read in Chapter 11 about the steps in investigating the facts of a client’s case, so we will not discuss investigation here. Bear in mind that at this point in the pretrial process, the paralegal may engage in extensive investigation of the facts. Investigation is a key part of pretrial work, and facts discovered (or not discovered) by the investigator may play an important role in determining the outcome of the lawsuit.
10-2cCreating the Litigation File
Attorney Gilmore also asks paralegal Lopez to create a litigation file for the case. As the litigation progresses, Lopez will carefully maintain the file to make sure that such items as correspondence, bills, research and investigation results, and all documents and exhibits relating to the litigation are in the file and arranged in an organized manner.
Organization
Each law firm or legal department has its own organizational scheme to follow when creating and maintaining client files. Recall from Chapter 3 that there are three goals of any law office filing system:
1. to preserve confidentiality,
2. to safeguard legal documents, and
3. to ensure that the contents of files can be easily and quickly retrieved when needed.
Usually it is the paralegal’s responsibility to make sure that the litigation file is properly created and maintained.
As a case progresses through the litigation process, subfiles may be created for documents relating to the various stages. For example, at this point in the Baranski case, the litigation file contains notes taken during the initial client interview, the signed retainer agreement, and information and documents gathered by Lopez during her preliminary investigation of the claim. As the lawsuit progresses, Lopez makes sure that subfiles are created for documents relating to the pleadings and discovery stages (to be discussed shortly). Depending on the office filing system, the file folders for these subfiles may be color coded or numbered so that each subfile can be readily recognized and retrieved.
Litigation files can easily expand into thousands of documents. Part of the paralegal’s job is to file and organize these documents in such a way that they can be quickly retrieved when needed. When might you wish to scan file documents and put them onto an external hard drive? How can you make sure that the external drive is secure?
Many firms also scan documents and create electronic copies of the files. Lopez also prepares an index for each subfile to indicate the documents included. The index is placed at the front of the folder for easy reference.
Litigation Files
A properly created and maintained litigation file provides a comprehensive record of the case so that others in the firm can quickly acquaint themselves with the progress of the proceedings. Because well-organized files are critical to the success of any case, Lopez should take special care to properly maintain the file. The Developing Paralegal Skills feature discusses file organization in more depth.
Developing Paralegal Skills
File Workup
Once a litigation file has been created, the paralegal typically “works up” the file. In the Baranski case, after paralegal Lopez has completed her initial investigation into Baranski’s claim, she reviews and summarizes the information she has amassed so far. This includes the information gathered through the initial and subsequent client interviews and any investigation that she has conducted.
Lopez also identifies areas that might require testimony of an expert witness. For example, if Baranski claimed that as a result of the accident she would always walk with a limp, Gilmore would want a medical specialist to give expert testimony to support the claim. (How to locate expert witnesses will be discussed in later chapters.) Lopez would prepare a list of potential experts for Gilmore to review.
Once Lopez has worked up the file, she prepares a memo to Gilmore summarizing the file. This memo provides him with factual information to decide which legal remedy or strategy to pursue, what legal issues need to be researched, and generally how to proceed with the case.
Tips for Preparing a File Workup Memo
· Summarize the information that has been obtained about the case.
· Suggest a plan for further investigation in the case (reviewed in Chapter 11).
· Suggest additional information that might be obtained during discovery (discussed later in this chapter).
· Include a list of expert witnesses to contact, explaining which witnesses might be preferable, and why.
Hacking Legal Files
Hackers work to steal information or destroy computer files. Protecting the privacy and security of client files, and all other office files, from hackers is a major concern. Security failures can affect a law firm’s cases and its reputation. Large law firms usually have a specialist assigned to computer and Internet security. Smaller firms may be less formal, but the concerns are the same: Are files safe? Is the transmission of files to courts safe from interception? Could a hacker destroy the contents of the firm’s computers? Are files stored off site secure? While you are probably not a security expert, you should be aware of security for the computers you use and be sure to follow the procedures established by your firm.
10-3The Pleadings
The next step is for plaintiff Baranski’s attorney, Gilmore, to file a complaint in the appropriate court. The complaintcomplaintThe pleading made by a plaintiff or a charge made by the state alleging wrongdoing on the part of the defendant. complaintThe pleading made by a plaintiff or a charge made by the state alleging wrongdoing on the part of the defendant. (called a petition in some courts) is a document that states the claims the plaintiff is making against the defendant. The complaint also contains a statement regarding the court’s jurisdiction over the dispute and a demand for a remedy (such as money damages).
The filing of the complaint is the step that begins the formal legal action against the defendant, Peretto. The complaint is one of the pleadingspleadingsStatements by the plaintiff and the defendant that detail the facts, charges, and defenses involved in the litigation. pleadingsStatements by the plaintiff and the defendant that detail the facts, charges, and defenses involved in the litigation., which inform each party of the claims made by the other and specify the issues (disputed questions) involved in the case. We examine here two basic pleadings—the plaintiff’s complaint and the defendant’s answer.
The complaint must be filed within the period of time allowed by law for bringing legal actions. The allowable period is fixed by state statutes of limitations (discussed in Chapter 5), and this period varies for different types of claims. For example, actions concerning breaches of sales contracts must usually be brought within four years. After the time allowed under a statute of limitations has expired, normally no action can be brought, no matter how strong the case was originally. For instance, if the statute of limitations covering the auto-negligence lawsuit that plaintiff Baranski is bringing against defendant Peretto allows two years for bringing an action, Baranski normally must initiate the lawsuit within that time or give up the possibility of suing Peretto for damages caused by the car accident.
Chapter Contents
10-3aDrafting the Complaint
The complaint itself may be no more than a few paragraphs long, or it may be many pages in length, depending on the complexity of the case. In the Baranski case, the complaint will probably be only a few pages long unless special circumstances require additional details. The complaint will include the following sections, each of which we discuss below:
· Caption.
· Jurisdictional allegations.
· General allegations (the body of the complaint).
· Prayer for relief.
· Signature.
· Demand for a jury trial.
Exhibit 10.2 shows a sample complaint.
Exhibit 10.2The Complaint
Baranski’s case is filed in a federal court, so the Federal Rules of Civil Procedure (FRCP) apply. If the case were filed in a state court, paralegal Lopez would need to review the appropriate state rules of civil procedure. The rules for drafting pleadings in state courts differ from the FRCP. The rules also differ from state to state and even from court to court within the same state. Lopez could obtain pleading forms from “form books” available in the law firm’s files or library (or online) or from pleadings drafted previously in similar cases litigated by the firm.
The Caption
The complaint itself may be no more than a few paragraphs long, or it may be many pages in length, depending on the complexity of the case. In the Baranski case, the complaint will probably be only a few pages long unless special circumstances require additional details. The complaint will include the following sections, each of which we discuss below:
· Caption.
· Jurisdictional allegations.
· General allegations (the body of the complaint).
· Prayer for relief.
· Signature.
· Demand for a jury trial.
Exhibit 10.2 shows a sample complaint.
Exhibit 10.2The Complaint
Baranski’s case is filed in a federal court, so the Federal Rules of Civil Procedure (FRCP) apply. If the case were filed in a state court, paralegal Lopez would need to review the appropriate state rules of civil procedure. The rules for drafting pleadings in state courts differ from the FRCP. The rules also differ from state to state and even from court to court within the same state. Lopez could obtain pleading forms from “form books” available in the law firm’s files or library (or online) or from pleadings drafted previously in similar cases litigated by the firm.
The Caption
All documents submitted to the court or other parties during the litigation process begin with a caption. The caption is the heading, which identifies the name of the court, the title of the action, the names of the parties, the type of document, and the court’s file number. Note that the court’s file number may also be referred to as the case number or docket number, depending on the jurisdiction. (A docketdocketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court. docketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court. is the official schedule of proceedings in lawsuits pending before a court.)
The caption for a complaint leaves a space for the court to insert the number that it assigns to the case. Courts typically assign the case a number when the complaint is filed. Any document subsequently filed with the court in the case will list the file, case, or docket number on the front page of the document. Exhibit 10.2 shows how the caption will read in the case of Baranski v. Peretto.
Jurisdictional Allegations
Because attorney Gilmore is filing the lawsuit in a federal district court, he must include in the complaint an allegation that the federal court has jurisdiction to hear the dispute. (An allegationallegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove. allegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove. is an assertion, claim, or statement made by one party in a pleading that sets out what the party expects to prove to the court.) Recall from Chapter 6 that federal courts can exercise jurisdiction over disputes involving either a federal question or diversity of citizenship.
A federal question arises whenever a claim in a civil lawsuit relates to a federal law, the U.S. Constitution, or a treaty executed by the U.S. government. Diversity of citizenship exists when the parties involved in the lawsuit are citizens of different states and the amount in controversy exceeds $75,000. Because Baranski and Peretto are citizens of different states (Nita and Zero, respectively) and because the amount in controversy exceeds $75,000, the case meets the requirements for diversity-of-citizenship jurisdiction. Gilmore thus asserts that the federal court has jurisdiction on this basis, as illustrated in Exhibit 10.2.
Certain cases, including those involving diversity of citizenship, may be brought in either a state court or a federal court. (This was discussed in the Developing Paralegal Skills feature in Chapter 6.) Thus, an attorney in Gilmore’s position can advise the client that there is a choice. Gilmore probably considered several factors when advising Baranski on which court would be preferable for her lawsuit. One issue is how long it would take to get the case to trial. Many courts are overburdened by their caseloads, and sometimes it can take years before a court will be able to hear a case. If Gilmore knows that the case could be heard two years earlier in the federal court than in the state court, that is an important factor to consider.
General Allegations (The Body of the Complaint)
The body of the complaint contains a series of allegations that set forth a claim for relief. In plaintiff Baranski’s complaint, the allegations outline the factual events that gave rise to Baranski’s claims. The events are described in a series of chronologically arranged, numbered allegations so that the reader can understand them easily. As Exhibit 10.2 shows, the numbers of the paragraphs in the body of the complaint continue the sequence begun in the section on jurisdictional allegations.
ADVOCATE THE PLAINTIFF’S POSITION. When drafting the complaint, Lopez acts as an advocate. She must present the facts forcefully to support and strengthen the client’s claim. The recitation of the facts must demonstrate that defendant Peretto engaged in conduct that entitles plaintiff Baranski to relief. Even though she wants to present the facts in a light most favorable to Baranski, Lopez must be careful not to exaggerate the facts or make false statements. Rather, she must present the facts in such a way that the reader could reasonably infer that Peretto was negligent and that his negligence caused Baranski’s injuries and losses.
What if her research into the case had given Lopez reason to believe that a fact was probably true even though she could not verify it? She could still include the statement in the complaint by prefacing it with the phrase, “On information and belief.” This language would indicate to the court that plaintiff Baranski has good reason to believe the truth of the statement, but that the evidence for it either had not yet been obtained or might not hold up under close scrutiny.
BE CLEAR AND CONCISE. The most effective complaints are clear and concise. Brevity and simplicity are required under FRCP 8(a). When drafting the complaint, Lopez should use clear language and favor simple and direct statements over more complex wording. Lopez should only include facts that are absolutely necessary for the complaint. By reducing the body of the complaint to the simplest possible terms, Lopez achieves greater clarity and minimizes the possibility of divulging attorney Gilmore’s trial strategies or hinting at a possible defense that the opponent might use.
OUTLINE HARMS SUFFERED AND REMEDY SOUGHT. After telling Baranski’s story, Lopez adds one or more paragraphs outlining the harms suffered by the plaintiff and the remedy sought. In general, it is preferable that all allegations of damages—such as hospital costs, lost wages, and auto-repair expenses—be included in a single paragraph, as in Exhibit 10.2, Paragraph 10, at the top. Lopez should check the relevant court rules to see whether the court requires that certain damages (Baranski’s lost wages, for example) be alleged in a separate paragraph.
Prayer for Relief
Paralegal Lopez includes a paragraph at the end of the complaint, similar to the one shown in Exhibit 10.2, asking that judgment be entered for the plaintiff and appropriate relief be granted. This prayer for reliefprayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff. prayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff. will indicate that plaintiff Baranski is seeking money damages to compensate her for the harms that she suffered.
Signature
In federal practice, the signature following the prayer for relief certifies that the plaintiff’s attorney (or the plaintiff, if not represented by an attorney) has read the complaint and that the facts alleged are true to the best of his or her knowledge. In addition, some state courts require an affidavit signed by the plaintiff verifying that the complaint is true to the best of the plaintiff’s knowledge. AffidavitsAffidavitsA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation. AffidavitsA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation. are sworn statements attesting to the existence of certain facts. They are acknowledged by a notary public or another official authorized to administer such oaths or affirmations. Exhibit 10.2 illustrates an affidavit for the Baranski complaint.
Demand for a Jury Trial
The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in federal courts in all “suits at common law” when the amount in controversy exceeds $20 (the equivalent of 40 days’ salary at that time). Most states have similar guarantees in their own constitutions, although many states put a higher minimum dollar restriction on the guarantee (for example, in Maryland the minimum amount is $10,000). If this threshold requirement is met, either party may request a jury trial.
The right to a trial by jury does not have to be exercised, and many cases are tried without one, with the judge making the findings of fact. In most states and in federal courts, one of the parties must request a jury trial, or the right is presumed waived (that is, the court will presume that neither party wants a jury trial). The decision to exercise the right to a jury trial usually depends on what legal theory the party is using and which judge is assigned to the trial. In the Baranski case, Gilmore may advise Baranski to demand a jury trial if he believes that a jury would be sympathetic to her position. If Baranski wants a jury trial, Gilmore will ask Lopez to include a demand for a jury trial (as in Point B of the prayer for relief in Exhibit 10.2) with the complaint. More tips for drafting a complaint are presented in the Developing Paralegal Skills feature.
Developing Paralegal Skills
A Checklist for Drafting a Complaint in a Federal Civil Case
Civil cases begin when a complaint is filed in court. To draft a complaint, you need to know the facts your client alleges and the law that supports your client’s claim for relief. You need to review notes from client interviews and meetings with the attorneys, factual materials (e.g., police or hospital reports), and preliminary research. It is a good idea to review complaints from similar cases handled by your firm in the past. They can give you a feel for the appropriate writing style. Form books also provide guidance on how to draft particular claims. It is also critical to check the appropriate court’s rules for local requirements.
For civil suits in federal court, FRCP 8 sets out the required elements. State rules have equivalent provisions. Generally, local rules will cover the typeface, type and size of paper, and other such matters.
A well-drafted complaint contains the information needed to answer the following questions:
· Who is the plaintiff? Use the plaintiff’s legal name and include a statement of the jurisdiction where the plaintiff is a legal resident. If the plaintiff is suing as the representative of someone else, identify the relationship.
· Who is the defendant? It is critical to use the defendant’s correct legal name so that you sue the proper person or firm. You also need to provide the defendant’s legal residence.
· Why is the suit being filed in this court? How does the court have jurisdiction over the case? List the specific statutes involved. For example, list 28 U.S.C. 1331 for federal question jurisdiction, 28 U.S.C. 1332 for diversity-of-citizenship jurisdiction, or 42 U.S.C. 1983 for civil rights violations. Remember, the court must have jurisdiction over both the cause of action and defendants.
· Did any administrative prerequisites have to be satisfied prior to filing suit? If so, how?
· Is the claim timely filed (within the relevant statute of limitations)?
· What are the facts that make up the plaintiff’s case? State these accurately, clearly, and briefly. Give names and dates where known.
· What are the legal claims made by the plaintiff? Draft each claim in a separate “count” in the complaint.
· Are there special pleading requirements for particular claims (e.g., fraud)? How has the plaintiff satisfied them?
· What is the plaintiff asking for? Clearly describe the relief the plaintiff wants—is it monetary damages? An injunction? Declaratory relief? Attorneys’ fees and costs? Prejudgment interest? Postjudgment interest? Are special damages requested (such as statutory damages or punitive damages)?
· Who is the attorney filing the suit? Include an appropriate signature block for the lawyer to sign, certifying that she has conducted a reasonable inquiry into the facts that support the claim.
· Is a jury requested? Check to see if the claim is one for which a jury is available. Find out whether the attorney overseeing the case wants to request a jury. If so, you need to include the appropriate language demanding a jury trial.
All parts of the complaint should be written in clear, direct English. Professionalism is appreciated by a court.
The body of the complaint described in this section is a fact pleading, in which sufficient factual circumstances must be alleged to convince the court that the plaintiff has a cause of action. State courts often require fact pleadings, whereas federal courts only require notice pleading. FRCP 8(a) requires only that the complaint have “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fact pleading and notice pleading are not totally different—that is, the same allegation of facts could be in the body of a complaint submitted to either a federal or a state court. Federal courts simply have fewer requirements in this respect, and therefore they are often more attractive to litigants.
10-3bFiling the Complaint
10-3cService of Process
Before the court can exercise jurisdiction over the defendant, the court must have proof that the defendant was notified of the lawsuit. Serving the summons and complaint—that is, officially delivering these documents to the defendant in a lawsuit—is referred to as service of processservice of processThe delivery of the summons and the complaint to a defendant. service of processThe delivery of the summons and the complaint to a defendant..
The Summons
The summonssummonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. summonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. identifies the parties to the lawsuit, as well as the court in which the case will be heard, and directs the defendant to respond to the complaint within a specified period of time. In the Baranski case, paralegal Lopez will prepare a summons by filling out a form similar to that shown in Exhibit 10.3 below. Lopez also prepares a cover sheet for the case (a preprinted form), as is required in federal courts and in most state courts.
Exhibit 10.3A Summons in a Civil Action
If the case were being brought in a state court, Lopez would deliver the summons to the court clerk at the same time she delivers the complaint. In federal court cases, as will be discussed, the complaint may already have been filed under the FRCP provisions relating to waiver of notice.
After the clerk files the complaint and signs, seals, and issues the summons, attorney Gilmore is responsible for making sure that the summons and complaint are served on defendant Peretto. The service of the complaint and summons must happen within a specific time—120 days under FRCP 4(m)—after the complaint has been filed.
Serving the Complaint and Summons
How service of process occurs depends on the rules of the court or jurisdiction in which the lawsuit is brought. Under FRCP 4(c)(2), service of process in federal court cases may be effected “by any person who is not a party and who is at least 18 years of age.” Paralegal Lopez, for example, could serve the summons and complaint by personally delivering it to defendant Peretto. Alternatively, she could make arrangements for someone else to do so, subject to approval of attorney Gilmore.
Most law firms contract with independent companies that provide process service in the local area. In some cases, the attorney might request that the court have a U.S. marshal or other federal official serve the summons. See the U.S. Marshals Service website for a discussion of their services and the service requirements in each state. A good discussion can be found at usmarshals.gov/process/summons-complaint.htm. For a list of process methods in the states, see usmarshals.gov/process/state.htm.
Under FRCP 4(e)(1), service of process in federal court cases may be performed “pursuant to the law of the state in which the district court is located.” Some state courts require that a public officer, such as a sheriff, serve the complaint and summons.
ALTER NATIVE SERVICE METHODS. Although the most common way to serve process on a defendant is through personal service as described above, other methods are permissible at times, depending on the jurisdiction. Substituted service is a method of service allowed by law in place of personal service, such as service by certified mail or e-mail. In general, substituted service is not favored. The paralegal and attorney need to know the types of service authorized by the laws in the relevant state.
PROOF OF SERVICE. Regardless of how the summons is served, attorney Gilmore will need proof that defendant Peretto actually received the summons. In federal court cases, unless service is made by a U.S. marshal or other official, the process server fills out and signs a form similar to the return-of-service formreturn-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. return-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. shown in Exhibit 10.4. This form is then submitted to the court as proof of service.
Exhibit 10.4A Return-of-Service Form
JURISDICTIONS VARY. Paralegal Lopez must be careful to comply with the service requirements of the court in which plaintiff Baranski’s suit has been filed. If service is not properly made, defendant Peretto has legal grounds (basis) for asking the court to dismiss the case against him. The court cannot exercise jurisdiction over Peretto until he has been properly notified of the lawsuit being brought against him.
Serving Corporate Defendants
In cases involving corporate defendants, the summons and complaint may be served on an officer or a registered agent (representative) of the corporation. The name of a corporation’s registered agent and its business address can usually be obtained from the secretary of state’s office in the state in which the company is incorporated or in any state in which it does business.
Finding the Defendant
Because some defendants may be difficult to locate, paralegals sometimes have to search for a defendant so that process can be served. Information sources include telephone directories, banks, former business partners or fellow workers, credit bureaus, Social Security offices, insurance companies, landlords, state and county tax rolls, utility companies, automobile-registration bureaus, bureaus of vital statistics, and the post office. (Chapter 11 discusses these and other sources that the paralegal might consult when trying to locate parties or witnesses in lawsuits.)
The Defendant Can Waive Service
Often the defendant is aware that a lawsuit is being filed (often the plaintiff’s attorney has been in contact with the defendant and indicated that a complaint would be filed). A plaintiff can request the defendant to waive (give up) the right to be formally served with a summons. FRCP 4(d) sets forth the procedure by which a plaintiff’s attorney can request the defendant to accept service of the documents through the mail or “other reliable means.” Most states have similar rules.
The aim of FRCP 4(d) is to reduce the costs associated with service of process. As an incentive, defendants who agree to waive formal service of process under the federal rules receive additional time to respond to the complaint (sixty days, compared with the twenty days that a defendant normally has to respond to the complaint under FRCP 12). Some state rules of civil procedure provide other incentives, such as making a party who will not agree to waive service pay for reasonable expenses thereafter incurred in serving or attempting to serve the party.
Chapter Contents
10-3aDrafting the Complaint
The complaint itself may be no more than a few paragraphs long, or it may be many pages in length, depending on the complexity of the case. In the Baranski case, the complaint will probably be only a few pages long unless special circumstances require additional details. The complaint will include the following sections, each of which we discuss below:
· Caption.
· Jurisdictional allegations.
· General allegations (the body of the complaint).
· Prayer for relief.
· Signature.
· Demand for a jury trial.
Exhibit 10.2 shows a sample complaint.
Exhibit 10.2The Complaint
Baranski’s case is filed in a federal court, so the Federal Rules of Civil Procedure (FRCP) apply. If the case were filed in a state court, paralegal Lopez would need to review the appropriate state rules of civil procedure. The rules for drafting pleadings in state courts differ from the FRCP. The rules also differ from state to state and even from court to court within the same state. Lopez could obtain pleading forms from “form books” available in the law firm’s files or library (or online) or from pleadings drafted previously in similar cases litigated by the firm.
The Caption
All documents submitted to the court or other parties during the litigation process begin with a caption. The caption is the heading, which identifies the name of the court, the title of the action, the names of the parties, the type of document, and the court’s file number. Note that the court’s file number may also be referred to as the case number or docket number, depending on the jurisdiction. (A docketdocketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court. docketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court. is the official schedule of proceedings in lawsuits pending before a court.)
The caption for a complaint leaves a space for the court to insert the number that it assigns to the case. Courts typically assign the case a number when the complaint is filed. Any document subsequently filed with the court in the case will list the file, case, or docket number on the front page of the document. Exhibit 10.2 shows how the caption will read in the case of Baranski v. Peretto.
Jurisdictional Allegations
Because attorney Gilmore is filing the lawsuit in a federal district court, he must include in the complaint an allegation that the federal court has jurisdiction to hear the dispute. (An allegationallegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove. allegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove. is an assertion, claim, or statement made by one party in a pleading that sets out what the party expects to prove to the court.) Recall from Chapter 6 that federal courts can exercise jurisdiction over disputes involving either a federal question or diversity of citizenship.
A federal question arises whenever a claim in a civil lawsuit relates to a federal law, the U.S. Constitution, or a treaty executed by the U.S. government. Diversity of citizenship exists when the parties involved in the lawsuit are citizens of different states and the amount in controversy exceeds $75,000. Because Baranski and Peretto are citizens of different states (Nita and Zero, respectively) and because the amount in controversy exceeds $75,000, the case meets the requirements for diversity-of-citizenship jurisdiction. Gilmore thus asserts that the federal court has jurisdiction on this basis, as illustrated in Exhibit 10.2.
Certain cases, including those involving diversity of citizenship, may be brought in either a state court or a federal court. (This was discussed in the Developing Paralegal Skills feature in Chapter 6.) Thus, an attorney in Gilmore’s position can advise the client that there is a choice. Gilmore probably considered several factors when advising Baranski on which court would be preferable for her lawsuit. One issue is how long it would take to get the case to trial. Many courts are overburdened by their caseloads, and sometimes it can take years before a court will be able to hear a case. If Gilmore knows that the case could be heard two years earlier in the federal court than in the state court, that is an important factor to consider.
General Allegations (The Body of the Complaint)
The body of the complaint contains a series of allegations that set forth a claim for relief. In plaintiff Baranski’s complaint, the allegations outline the factual events that gave rise to Baranski’s claims. The events are described in a series of chronologically arranged, numbered allegations so that the reader can understand them easily. As Exhibit 10.2 shows, the numbers of the paragraphs in the body of the complaint continue the sequence begun in the section on jurisdictional allegations.
ADVOCATE THE PLAINTIFF’S POSITION. When drafting the complaint, Lopez acts as an advocate. She must present the facts forcefully to support and strengthen the client’s claim. The recitation of the facts must demonstrate that defendant Peretto engaged in conduct that entitles plaintiff Baranski to relief. Even though she wants to present the facts in a light most favorable to Baranski, Lopez must be careful not to exaggerate the facts or make false statements. Rather, she must present the facts in such a way that the reader could reasonably infer that Peretto was negligent and that his negligence caused Baranski’s injuries and losses.
What if her research into the case had given Lopez reason to believe that a fact was probably true even though she could not verify it? She could still include the statement in the complaint by prefacing it with the phrase, “On information and belief.” This language would indicate to the court that plaintiff Baranski has good reason to believe the truth of the statement, but that the evidence for it either had not yet been obtained or might not hold up under close scrutiny.
BE CLEAR AND CONCISE. The most effective complaints are clear and concise. Brevity and simplicity are required under FRCP 8(a). When drafting the complaint, Lopez should use clear language and favor simple and direct statements over more complex wording. Lopez should only include facts that are absolutely necessary for the complaint. By reducing the body of the complaint to the simplest possible terms, Lopez achieves greater clarity and minimizes the possibility of divulging attorney Gilmore’s trial strategies or hinting at a possible defense that the opponent might use.
OUTLINE HARMS SUFFERED AND REMEDY SOUGHT. After telling Baranski’s story, Lopez adds one or more paragraphs outlining the harms suffered by the plaintiff and the remedy sought. In general, it is preferable that all allegations of damages—such as hospital costs, lost wages, and auto-repair expenses—be included in a single paragraph, as in Exhibit 10.2, Paragraph 10, at the top. Lopez should check the relevant court rules to see whether the court requires that certain damages (Baranski’s lost wages, for example) be alleged in a separate paragraph.
Prayer for Relief
Paralegal Lopez includes a paragraph at the end of the complaint, similar to the one shown in Exhibit 10.2, asking that judgment be entered for the plaintiff and appropriate relief be granted. This prayer for reliefprayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff. prayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff. will indicate that plaintiff Baranski is seeking money damages to compensate her for the harms that she suffered.
Signature
In federal practice, the signature following the prayer for relief certifies that the plaintiff’s attorney (or the plaintiff, if not represented by an attorney) has read the complaint and that the facts alleged are true to the best of his or her knowledge. In addition, some state courts require an affidavit signed by the plaintiff verifying that the complaint is true to the best of the plaintiff’s knowledge. AffidavitsAffidavitsA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation. AffidavitsA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation. are sworn statements attesting to the existence of certain facts. They are acknowledged by a notary public or another official authorized to administer such oaths or affirmations. Exhibit 10.2 illustrates an affidavit for the Baranski complaint.
Demand for a Jury Trial
The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in federal courts in all “suits at common law” when the amount in controversy exceeds $20 (the equivalent of 40 days’ salary at that time). Most states have similar guarantees in their own constitutions, although many states put a higher minimum dollar restriction on the guarantee (for example, in Maryland the minimum amount is $10,000). If this threshold requirement is met, either party may request a jury trial.
The right to a trial by jury does not have to be exercised, and many cases are tried without one, with the judge making the findings of fact. In most states and in federal courts, one of the parties must request a jury trial, or the right is presumed waived (that is, the court will presume that neither party wants a jury trial). The decision to exercise the right to a jury trial usually depends on what legal theory the party is using and which judge is assigned to the trial. In the Baranski case, Gilmore may advise Baranski to demand a jury trial if he believes that a jury would be sympathetic to her position. If Baranski wants a jury trial, Gilmore will ask Lopez to include a demand for a jury trial (as in Point B of the prayer for relief in Exhibit 10.2) with the complaint. More tips for drafting a complaint are presented in the Developing Paralegal Skills feature.
Developing Paralegal Skills
A Checklist for Drafting a Complaint in a Federal Civil Case
Civil cases begin when a complaint is filed in court. To draft a complaint, you need to know the facts your client alleges and the law that supports your client’s claim for relief. You need to review notes from client interviews and meetings with the attorneys, factual materials (e.g., police or hospital reports), and preliminary research. It is a good idea to review complaints from similar cases handled by your firm in the past. They can give you a feel for the appropriate writing style. Form books also provide guidance on how to draft particular claims. It is also critical to check the appropriate court’s rules for local requirements.
For civil suits in federal court, FRCP 8 sets out the required elements. State rules have equivalent provisions. Generally, local rules will cover the typeface, type and size of paper, and other such matters.
A well-drafted complaint contains the information needed to answer the following questions:
· Who is the plaintiff? Use the plaintiff’s legal name and include a statement of the jurisdiction where the plaintiff is a legal resident. If the plaintiff is suing as the representative of someone else, identify the relationship.
· Who is the defendant? It is critical to use the defendant’s correct legal name so that you sue the proper person or firm. You also need to provide the defendant’s legal residence.
· Why is the suit being filed in this court? How does the court have jurisdiction over the case? List the specific statutes involved. For example, list 28 U.S.C. 1331 for federal question jurisdiction, 28 U.S.C. 1332 for diversity-of-citizenship jurisdiction, or 42 U.S.C. 1983 for civil rights violations. Remember, the court must have jurisdiction over both the cause of action and defendants.
· Did any administrative prerequisites have to be satisfied prior to filing suit? If so, how?
· Is the claim timely filed (within the relevant statute of limitations)?
· What are the facts that make up the plaintiff’s case? State these accurately, clearly, and briefly. Give names and dates where known.
· What are the legal claims made by the plaintiff? Draft each claim in a separate “count” in the complaint.
· Are there special pleading requirements for particular claims (e.g., fraud)? How has the plaintiff satisfied them?
· What is the plaintiff asking for? Clearly describe the relief the plaintiff wants—is it monetary damages? An injunction? Declaratory relief? Attorneys’ fees and costs? Prejudgment interest? Postjudgment interest? Are special damages requested (such as statutory damages or punitive damages)?
· Who is the attorney filing the suit? Include an appropriate signature block for the lawyer to sign, certifying that she has conducted a reasonable inquiry into the facts that support the claim.
· Is a jury requested? Check to see if the claim is one for which a jury is available. Find out whether the attorney overseeing the case wants to request a jury. If so, you need to include the appropriate language demanding a jury trial.
All parts of the complaint should be written in clear, direct English. Professionalism is appreciated by a court.
The body of the complaint described in this section is a fact pleading, in which sufficient factual circumstances must be alleged to convince the court that the plaintiff has a cause of action. State courts often require fact pleadings, whereas federal courts only require notice pleading. FRCP 8(a) requires only that the complaint have “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fact pleading and notice pleading are not totally different—that is, the same allegation of facts could be in the body of a complaint submitted to either a federal or a state court. Federal courts simply have fewer requirements in this respect, and therefore they are often more attractive to litigants.
10-3bFiling the Complaint
Once the complaint has been prepared, checked for accuracy, and signed by attorney Gilmore, paralegal Lopez files the complaint with the court in which the action is being brought.
Traditional Method of Filing
Traditionally, a person filing a complaint personally delivers the complaint to the clerk of the court, together with a specified number of copies of the complaint and a check payable to the court in the amount of the required filing fee. Usually, a summons (discussed shortly) is also attached. If Lopez uses this method of filing, she can either deliver the complaint to the court clerk or have someone deliver it for her. If she is not aware of the court’s procedures for filing the complaint, she needs to contact the court to verify the filing fee and how many copies of the complaint need to be filed.
Typically, the original (signed) complaint is filed with at least two copies (the court keeps the original, and the plaintiff and defendant receive a copy), although additional copies may be required, particularly if there are multiple plaintiffs or defendants.
The court clerk files the complaint by:
· stamping the date on the first page of all the documents (original and copies);
· assigning the case a file number, or docket number; and
· assigning the case to a particular judge.
(In some state courts, the file number or judge may not be assigned until later.) The clerk then returns the date-stamped copies to the person who delivered the documents for service on the defendant (to be discussed shortly).
E-Filing
Instead of delivering a paper document to the court, Lopez may be able to file the complaint electronically. Electronic filing is becoming more common. Because of the reduced time and paperwork involved, electronic filing can result in savings for attorneys, clients, and the courts. With e-filinge-filingAn online system that enables attorneys to file case documents with courts twenty-four hours a day, seven days a week. e-filingAn online system that enables attorneys to file case documents with courts twenty-four hours a day, seven days a week., registered attorneys can file case documents over the Internet at any time right up to the filing deadline. (Go to pacer.gov to see the service for the federal court system.)
A party to an action being handled by e-filing may have the right to request hard copies of documents. When hard copies are used, they are to include a clear notice that they have been filed electronically. Special steps are taken to protect private information, such as Social Security numbers, credit-card information, a minor child’s name, or trade secrets. Fees for documents filed are paid electronically. Therefore, in many cases, all paperwork and communications between the parties and the court may be electronic.
10-3cService of Process
Before the court can exercise jurisdiction over the defendant, the court must have proof that the defendant was notified of the lawsuit. Serving the summons and complaint—that is, officially delivering these documents to the defendant in a lawsuit—is referred to as service of processservice of processThe delivery of the summons and the complaint to a defendant. service of processThe delivery of the summons and the complaint to a defendant..
The Summons
The summonssummonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. summonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. identifies the parties to the lawsuit, as well as the court in which the case will be heard, and directs the defendant to respond to the complaint within a specified period of time. In the Baranski case, paralegal Lopez will prepare a summons by filling out a form similar to that shown in Exhibit 10.3 below. Lopez also prepares a cover sheet for the case (a preprinted form), as is required in federal courts and in most state courts.
If the case were being brought in a state court, Lopez would deliver the summons to the court clerk at the same time she delivers the complaint. In federal court cases, as will be discussed, the complaint may already have been filed under the FRCP provisions relating to waiver of notice.
After the clerk files the complaint and signs, seals, and issues the summons, attorney Gilmore is responsible for making sure that the summons and complaint are served on defendant Peretto. The service of the complaint and summons must happen within a specific time—120 days under FRCP 4(m)—after the complaint has been filed.
Serving the Complaint and Summons
How service of process occurs depends on the rules of the court or jurisdiction in which the lawsuit is brought. Under FRCP 4(c)(2), service of process in federal court cases may be effected “by any person who is not a party and who is at least 18 years of age.” Paralegal Lopez, for example, could serve the summons and complaint by personally delivering it to defendant Peretto. Alternatively, she could make arrangements for someone else to do so, subject to approval of attorney Gilmore.
Most law firms contract with independent companies that provide process service in the local area. In some cases, the attorney might request that the court have a U.S. marshal or other federal official serve the summons. See the U.S. Marshals Service website for a discussion of their services and the service requirements in each state. A good discussion can be found at usmarshals.gov/process/summons-complaint.htm. For a list of process methods in the states, see usmarshals.gov/process/state.htm.
Under FRCP 4(e)(1), service of process in federal court cases may be performed “pursuant to the law of the state in which the district court is located.” Some state courts require that a public officer, such as a sheriff, serve the complaint and summons.
ALTER NATIVE SERVICE METHODS. Although the most common way to serve process on a defendant is through personal service as described above, other methods are permissible at times, depending on the jurisdiction. Substituted service is a method of service allowed by law in place of personal service, such as service by certified mail or e-mail. In general, substituted service is not favored. The paralegal and attorney need to know the types of service authorized by the laws in the relevant state.
PROOF OF SERVICE. Regardless of how the summons is served, attorney Gilmore will need proof that defendant Peretto actually received the summons. In federal court cases, unless service is made by a U.S. marshal or other official, the process server fills out and signs a form similar to the return-of-service formreturn-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. return-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. shown in Exhibit 10.4. This form is then submitted to the court as proof of service.
Exhibit 10.4A Return-of-Service Form
JURISDICTIONS VARY. Paralegal Lopez must be careful to comply with the service requirements of the court in which plaintiff Baranski’s suit has been filed. If service is not properly made, defendant Peretto has legal grounds (basis) for asking the court to dismiss the case against him. The court cannot exercise jurisdiction over Peretto until he has been properly notified of the lawsuit being brought against him.
Serving Corporate Defendants
In cases involving corporate defendants, the summons and complaint may be served on an officer or a registered agent (representative) of the corporation. The name of a corporation’s registered agent and its business address can usually be obtained from the secretary of state’s office in the state in which the company is incorporated or in any state in which it does business.
Finding the Defendant
Because some defendants may be difficult to locate, paralegals sometimes have to search for a defendant so that process can be served. Information sources include telephone directories, banks, former business partners or fellow workers, credit bureaus, Social Security offices, insurance companies, landlords, state and county tax rolls, utility companies, automobile-registration bureaus, bureaus of vital statistics, and the post office. (Chapter 11 discusses these and other sources that the paralegal might consult when trying to locate parties or witnesses in lawsuits.)
The Defendant Can Waive Service
Often the defendant is aware that a lawsuit is being filed (often the plaintiff’s attorney has been in contact with the defendant and indicated that a complaint would be filed). A plaintiff can request the defendant to waive (give up) the right to be formally served with a summons. FRCP 4(d) sets forth the procedure by which a plaintiff’s attorney can request the defendant to accept service of the documents through the mail or “other reliable means.” Most states have similar rules.
The aim of FRCP 4(d) is to reduce the costs associated with service of process. As an incentive, defendants who agree to waive formal service of process under the federal rules receive additional time to respond to the complaint (sixty days, compared with the twenty days that a defendant normally has to respond to the complaint under FRCP 12). Some state rules of civil procedure provide other incentives, such as making a party who will not agree to waive service pay for reasonable expenses thereafter incurred in serving or attempting to serve the party.
10-3cService of Process
Before the court can exercise jurisdiction over the defendant, the court must have proof that the defendant was notified of the lawsuit. Serving the summons and complaint—that is, officially delivering these documents to the defendant in a lawsuit—is referred to as service of processservice of processThe delivery of the summons and the complaint to a defendant. service of processThe delivery of the summons and the complaint to a defendant..
The Summons
The summonssummonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. summonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. identifies the parties to the lawsuit, as well as the court in which the case will be heard, and directs the defendant to respond to the complaint within a specified period of time. In the Baranski case, paralegal Lopez will prepare a summons by filling out a form similar to that shown in Exhibit 10.3 below. Lopez also prepares a cover sheet for the case (a preprinted form), as is required in federal courts and in most state courts.
Exhibit 10.3A Summons in a Civil Action
If the case were being brought in a state court, Lopez would deliver the summons to the court clerk at the same time she delivers the complaint. In federal court cases, as will be discussed, the complaint may already have been filed under the FRCP provisions relating to waiver of notice.
After the clerk files the complaint and signs, seals, and issues the summons, attorney Gilmore is responsible for making sure that the summons and complaint are served on defendant Peretto. The service of the complaint and summons must happen within a specific time—120 days under FRCP 4(m)—after the complaint has been filed.
Serving the Complaint and Summons
How service of process occurs depends on the rules of the court or jurisdiction in which the lawsuit is brought. Under FRCP 4(c)(2), service of process in federal court cases may be effected “by any person who is not a party and who is at least 18 years of age.” Paralegal Lopez, for example, could serve the summons and complaint by personally delivering it to defendant Peretto. Alternatively, she could make arrangements for someone else to do so, subject to approval of attorney Gilmore.
Most law firms contract with independent companies that provide process service in the local area. In some cases, the attorney might request that the court have a U.S. marshal or other federal official serve the summons. See the U.S. Marshals Service website for a discussion of their services and the service requirements in each state. A good discussion can be found at usmarshals.gov/process/summons-complaint.htm. For a list of process methods in the states, see usmarshals.gov/process/state.htm.
Under FRCP 4(e)(1), service of process in federal court cases may be performed “pursuant to the law of the state in which the district court is located.” Some state courts require that a public officer, such as a sheriff, serve the complaint and summons.
ALTER NATIVE SERVICE METHODS. Although the most common way to serve process on a defendant is through personal service as described above, other methods are permissible at times, depending on the jurisdiction. Substituted service is a method of service allowed by law in place of personal service, such as service by certified mail or e-mail. In general, substituted service is not favored. The paralegal and attorney need to know the types of service authorized by the laws in the relevant state.
PROOF OF SERVICE. Regardless of how the summons is served, attorney Gilmore will need proof that defendant Peretto actually received the summons. In federal court cases, unless service is made by a U.S. marshal or other official, the process server fills out and signs a form similar to the return-of-service formreturn-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. return-of-service form A document signed by a process server and submitted to the court to prove that a defendant received a summons. shown in Exhibit 10.4. This form is then submitted to the court as proof of service.
Exhibit 10.4A Return-of-Service Form
JURISDICTIONS VARY. Paralegal Lopez must be careful to comply with the service requirements of the court in which plaintiff Baranski’s suit has been filed. If service is not properly made, defendant Peretto has legal grounds (basis) for asking the court to dismiss the case against him. The court cannot exercise jurisdiction over Peretto until he has been properly notified of the lawsuit being brought against him.
Serving Corporate Defendants
In cases involving corporate defendants, the summons and complaint may be served on an officer or a registered agent (representative) of the corporation. The name of a corporation’s registered agent and its business address can usually be obtained from the secretary of state’s office in the state in which the company is incorporated or in any state in which it does business.
Finding the Defendant
Because some defendants may be difficult to locate, paralegals sometimes have to search for a defendant so that process can be served. Information sources include telephone directories, banks, former business partners or fellow workers, credit bureaus, Social Security offices, insurance companies, landlords, state and county tax rolls, utility companies, automobile-registration bureaus, bureaus of vital statistics, and the post office. (Chapter 11 discusses these and other sources that the paralegal might consult when trying to locate parties or witnesses in lawsuits.)
The Defendant Can Waive Service
Often the defendant is aware that a lawsuit is being filed (often the plaintiff’s attorney has been in contact with the defendant and indicated that a complaint would be filed). A plaintiff can request the defendant to waive (give up) the right to be formally served with a summons. FRCP 4(d) sets forth the procedure by which a plaintiff’s attorney can request the defendant to accept service of the documents through the mail or “other reliable means.” Most states have similar rules.
The aim of FRCP 4(d) is to reduce the costs associated with service of process. As an incentive, defendants who agree to waive formal service of process under the federal rules receive additional time to respond to the complaint (sixty days, compared with the twenty days that a defendant normally has to respond to the complaint under FRCP 12). Some state rules of civil procedure provide other incentives, such as making a party who will not agree to waive service pay for reasonable expenses thereafter incurred in serving or attempting to serve the party.
10-3dThe Defendant’s Response (which is called a brief in some states) to be submitted along with the motion to dismiss and the accompanying affidavits. The memorandum of law presents the legal basis for the motion, citing any statutes and cases that support it. A supporting affidavit gives factual support to the motion to dismiss, while the memorandum of law provides the legal grounds for the dismissal of the claim.
Once a defendant receives the plaintiff’s complaint, the defendant must respond to the complaint within a specified time (typically twenty days). If the defendant fails to respond within that time, the plaintiff can ask the court to enter a default judgmentdefault judgmentA judgment entered by a clerk or court against a party who has failed to appear in court to answer or defend against a claim that has been brought against him or her by another party. default judgmentA judgment entered by a clerk or court against a party who has failed to appear in court to answer or defend against a claim that has been brought against him or her by another party. against the defendant. The defendant will then be liable for all damages the plaintiff is claiming and loses the opportunity to defend against the claim in court.
In the Baranski case, assume that defendant Peretto consults with an attorney, Elizabeth Cameron, to decide on a course of action. Before Cameron advises Peretto on the matter, she will investigate plaintiff Baranski’s claim and obtain evidence of what happened at the time of the accident. She may ask her paralegal, Gordon McVay, to call anyone who may have witnessed the accident and any police officers who were at the scene. Cameron will also ask McVay to gather relevant documents, including the traffic ticket Peretto received at the time of the accident and any reports filed by the police. If all goes well, Cameron and McVay will complete their investigation in a few days and then assess the results.
Most cases are dropped by the plaintiff or settled out of court before they go to trial. But even if Peretto’s attorney suspects that an out-of-court settlement might be preferable to a trial, she will draft a response to Baranski’s claim. She knows that if Peretto does not respond to the complaint within the proper time period, the court could enter a default judgment against him.
The Answer
A defendant’s answeranswerA defendant’s response to a plaintiff’s complaint. answerA defendant’s response to a plaintiff’s complaint. must respond to each allegation in the plaintiff’s complaint. FRCP 8(b) permits the defendant to admit or deny the truth of each allegation. Peretto’s attorney may advise him to admit to some of the allegations in Baranski’s complaint, because doing so narrows the number of issues in dispute. Allegations not denied by the defendant are deemed to have been admitted.
If Peretto does not know whether a particular allegation is true or false, Cameron may indicate that in the answer. This puts the burden of proving the allegation on Baranski. It is not necessary for Peretto’s attorney to include in the answer any of the reasons for the denial of particular allegations in Baranski’s complaint. These reasons may be revealed during the discovery phase of the litigation process (discussed later in this chapter).
Exhibit 10.5 illustrates the responses that Peretto might make in his answer. Like the complaint, the answer begins with a caption and ends with the attorney’s signature. It may also include an affidavit signed by the defendant and/or a demand for a jury trial, as in Exhibit 10.5.
ANSWER AND AFFIRMATIVE DEFENSES. A defendant may assert in the answer a reason why he or she should not be held liable for the plaintiff ’s injuries even if the facts, as alleged by the plaintiff, are true. This is called raising an affirmative defenseaffirmative defenseA response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. affirmative defenseA response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action..
For example, Peretto’s attorney might also raise the defense of contributory negligence. That is, she could argue that even though Peretto’s car collided with Baranski’s, Baranski was also negligent because she was exceeding the speed limit when the accident occurred. The plaintiff’s role in contributing to the accident could result in reduced or no damages for her. Although affirmative defenses are directed toward the plaintiff, the plaintiff is not required to file additional pleadings in response to these defenses.
ANSWER AND COUNTERCLAIM. Peretto’s attorney may assert one or more counterclaims. A counterclaimcounterclaimA claim made by a defendant in a civil lawsuit against the plaintiff; in effect, a counterclaiming defendant is suing the plaintiff. counterclaimA claim made by a defendant in a civil lawsuit against the plaintiff; in effect, a counterclaiming defendant is suing the plaintiff. is like a reverse lawsuit. The defendant asserts a claim against the plaintiff for injuries the defendant suffered from the same incident. For example, Peretto might contend that Baranski lost control of her car and skidded into Peretto’s car, causing him to be injured. This allegation would be a counterclaim. The plaintiff is then required to reply to any counterclaims made by the defendant.
CROSS-CLAIM. If a complaint names multiple defendants, the answer filed by one defendant might be followed by a cross-claimcross-claimA claim asserted by a defendant in a civil lawsuit against another defendant or by a plaintiff against another plaintiff. cross-claimA claim asserted by a defendant in a civil lawsuit against another defendant or by a plaintiff against another plaintiff., in which the defendant asserts a claim against another defendant. (Note that cross-claims may also be filed by one plaintiff against another plaintiff in the same case.) For example, suppose that plaintiff Baranski had been struck by two vehicles, one belonging to defendant Peretto and one belonging to Leon Balfour. If Peretto and Balfour had been named as co-defendants in Baranski’s complaint, Peretto’s attorney might have filed an answer to Baranski’s complaint that included a cross-claim against Balfour. The party against whom the cross-claim is brought is required to reply to (answer) the claim.
Filing a Motion
A motionmotionA procedural request or application presented by an attorney to the court on behalf of a client. motionA procedural request or application presented by an attorney to the court on behalf of a client. is a request submitted to the court by an attorney on behalf of his or her client. When one party files a motion with the court, that party must also send to, or serve on, the opposing party a notice of motion. The notice informs the opposing party that the motion has been filed and indicates when the court will hear the motion. The notice gives the opposing party an opportunity to prepare for the hearing.
The motion to dismissmotion to dismissA motion filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff’s failure to state a claim for which relief can be granted. motion to dismissA motion filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff’s failure to state a claim for which relief can be granted., as the phrase implies, requests the court to dismiss the case for reasons provided in the motion. Defendant Peretto’s attorney, for example, could file a motion to dismiss if she believed that Peretto had not been properly served, that the complaint had been filed in the wrong court, that the statute of limitations for that type of lawsuit had expired, or that the complaint did not state a claim for which relief (a remedy) could be granted. See Exhibit 10.6 for an example of a motion to dismiss.
Exhibit 10.6A Motion to Dismiss
If Peretto’s attorney decides to file a motion to dismiss Baranski’s claim, she may want to attach supporting affidavitssupporting affidavitsAn affidavit accompanying a motion that is filed by an attorney on behalf of his or her client. The sworn statements in the affidavit provide a factual basis for the motion. supporting affidavitsAn affidavit accompanying a motion that is filed by an attorney on behalf of his or her client. The sworn statements in the affidavit provide a factual basis for the motion.—sworn statements as to certain facts that may contradict allegations made in the complaint. Peretto’s attorney may also have her paralegal draft a memorandum of lawmemorandum of lawA document (known as a brief in some states) that delineates the legal theories, statutes, and cases on which a motion is based. memorandum of lawA document (known as a brief in some states) that delineates the legal theories, statutes, and cases on which a motion is based. (which is called a brief in some states) to be submitted along with the motion to dismiss and the accompanying affidavits. The memorandum of law presents the legal basis for the motion, citing any statutes and cases that support it. A supporting affidavit gives factual support to the motion to dismiss, while the memorandum of law provides the legal grounds for the dismissal of the claim.
10-3e The Scheduling Conference
After the complaint and answer have been filed, the court typically schedules a conference to consult with the attorneys for both sides. (A party not represented by an attorney attends the conference himself or herself.) Following this meeting, the judge enters a scheduling order that sets out the time limits within which pretrial events (such as the pleadings, the discovery, and the final pretrial conference) must be completed, as well as the date of the trial. Under FRCP 16(b), the scheduling order should be entered “as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant.” The purpose of this meeting is to enable the court to manage the case and establish time restrictions given the nature of the case.
10-4 Traditional Discovery Tools
Before a trial begins, the parties can use a number of procedural devices to obtain information and gather evidence about the case. Baranski’s attorney, for example, will want to know how fast Peretto was driving, whether he had been drinking, and whether he saw the stop sign. The process of obtaining information from the opposing party or from other witnesses is known as discovery .
10-4Traditional Discovery Tools
Before a trial begins, the parties can use a number of procedural devices to obtain information and gather evidence about the case. Baranski’s attorney, for example, will want to know how fast Peretto was driving, whether he had been drinking, and whether he saw the stop sign. The process of obtaining information from the opposing party or from other witnesses is known as discoverydiscoveryFormal investigation prior to trial. Opposing parties use various methods, such as interrogatories and depositions, to obtain information from each other and from witnesses to prepare for trial. discoveryFormal investigation prior to trial. Opposing parties use various methods, such as interrogatories and depositions, to obtain information from each other and from witnesses to prepare for trial..
10-4aPurpose of Discovery
Discovery serves several purposes. It preserves evidence from witnesses who might not be available at the time of the trial or whose memories will fade as time passes. It can lead to an out-of-court settlement if one party decides that the opponent’s case is too strong to challenge. If the case does go to trial, discovery prevents surprises by giving parties access to evidence that might otherwise be hidden. This allows both parties to learn as much as they can about what to expect at a trial before they reach the courtroom. It also serves to narrow the issues so the trial focuses on the main questions in the case.
The FRCP and similar rules in the states set forth the guidelines for discovery activity. Discovery is intended to give the parties access to witnesses, documents, records, and other evidence that the opposing side has. The rules governing discovery are also designed to make sure that a witness or a party is not unduly harassed, that privileged informationprivileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order. privileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order. (communications that ordinarily may not be disclosed in court) is safeguarded, and that only matters relevant to the case at hand are discoverable. Courts generally allow broad discovery so that there are fewer surprises at trial.
Discovery methods include interrogatories, depositions, requests for production and physical examination, and requests for admission. Remember, as with most legal matters, you have an obligation to keep all such information confidential, as discussed in the Ethics Watch feature.
Ethics Watch
Keeping Client Information Confidential
As it happens, attorney Gilmore’s legal assistant, Lopez, is a friend of plaintiff Baranski’s sister. Lopez learns from the results of Baranski’s medical examination that Baranski has a serious illness. Lopez is sure that the sister, who quarreled with Baranski two months ago and hasn’t spoken to her since, is unaware of the illness and would probably be hurt if she learned that Lopez knew of it and didn’t tell her so she could make amends with Baranski.
Should Lopez tell her friend about the illness? No. This is confidential information at this point, which Lopez only became aware of by virtue of her job. Should the information be revealed publicly during the course of the trial, Lopez would be free to disclose it to her friend if the friend still remained unaware of it. In the meantime, Lopez is ethically (and legally) obligated to protect the information from anyone who is not working on the case, including her friend.
This behavior is consistent with the NFPA Model Disciplinary Rules and Ethical Considerations, Section EC-1.5(f): “A paralegal shall not engage in any indiscreet communications concerning clients.”
10-4cDepositions
Like interrogatories, depositionsdepositionsA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded. depositionsA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded. are given under oath. However, depositions are usually conducted orally (except in rare circumstances when the party cannot be deposed in person or by telephone or videoconference). Furthermore, unlike interrogatories, they may be taken from witnesses as well as parties.
In a deposition, the attorney is able to question the person being deposed (the deponentdeponentA party or witness who testifies under oath during a deposition. deponentA party or witness who testifies under oath during a deposition.) in person and follows up with new questions that come to mind. The attorney is not limited in the number of questions asked in a deposition, whereas most courts limit the number of interrogatory questions. Moreover, because the questioning is often done in person, the deponent must answer without asking an attorney how to respond.
Procedure for Taking Depositions
The attorney wishing to depose a party or witness must give reasonable notice in writing to all other parties in the case and to the deposed. This is done by serving the opposing attorney (or attorneys) with a notice of the time and place of the deposition and the name of the person being examined (see Exhibit 10.8).
Exhibit 10.8Notice of Taking Deposition
If the person scheduled to be deposed will not attend voluntarily, a paralegal may need to prepare a subpoena for deposition and submit it to the clerk of the court for signature. Generally, a subpoenasubpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter. subpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter. is an order issued by the court clerk directing a party to appear and to testify at trial, as will be discussed in Chapter 12. A subpoena for deposition orders the person to appear at a deposition rather than in a court proceeding. A subpoena should also be prepared if the attorney wants the deponent to bring certain documents or tangible things to the deposition (this is called a subpoena duces tecum). Court rules differ on how subpoenas may be issued. Attorneys are often allowed to issue them in the name of the court.
Under FRCP 30 and 31, court permission is required for depositions to be taken before the parties have made the initial disclosures required by Rule 26 (discussed later in this chapter). Also, court approval may be required if either party wants to take more than one deposition from the same person or more than a total of ten depositions in the case. Always check the relevant court rules when planning discovery strategy.
Drafting Deposition Questions
Depositions are conducted by attorneys. Paralegals may attend depositions but do not ask questions. Deposition questions are often drafted by paralegals, however. In the Baranski case, for example, Gilmore might ask Lopez to draft questions for a deposition of defendant Peretto or someone else, such as an eyewitness to the accident. For Peretto’s deposition, Lopez might draft questions similar to those presented in Exhibit 10.9. Gilmore can then use Lopez’s questions as a checklist during the deposition.
Exhibit 10.9Sample Deposition Questions
Preparing the Client for a Deposition
No attorney can predict a deponent’s answers beforehand. Spontaneous and sometimes contradictory statements can seriously damage the deponent’s case. For this reason, the deposed parties and their lawyers prepare for depositions by formulating answers to likely questions. For example, if defendant Peretto’s attorney plans to depose plaintiff Baranski, attorney Gilmore might have Baranski come to the office for a run-through of possible questions that Peretto’s attorney might ask her.
This preparation does not mean that the lawyer tells the deponent what to say. Instead, the lawyer offers suggestions as to how the answers to certain questions should be phrased. The answers must be truthful, but the truth can be presented in many ways.
A practice deposition can also help laypeople become accustomed to the unfamiliar format and can reduce stress. This lessens the chances that the witness will make an error during the deposition due to nervousness. For example, Gilmore would caution Baranski to limit her responses to the questions and not engage in speculative answers. If Baranski was asked whether she had ever been involved in an automobile accident before, for example, Gilmore would probably caution her to give a simple (but truthful) “yes” or “no” answer. Gilmore normally would permit Baranski to provide additional information only in response to precisely phrased questions.
The Role of the Deponent’s Attorney
The deponent’s attorney attends the deposition, but the attorney’s role is limited. Under FRCP 30, the attorney may instruct a deponent to not answer a question only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion to terminate the deposition. In other words, if Baranski was deposed by Peretto’s attorney, Cameron, she would have to answer Cameron’s questions even if the questions were not clearly relevant to the issues of the case—unless the court had previously limited this line of questioning. The deponent’s attorney, Gilmore, could object only to questions that called for privileged information to be disclosed. Under Rule 30, that attorney is required to state objections concisely, in a nonargumentative and nonsuggestive manner.
The deponent’s attorney or the other party’s attorney may also ask questions during the deposition to clarify a point or to establish facts needed for a motion. These questions are asked after the attorney conducting the deposition has finished. After the deponent’s attorney has asked questions, the attorney conducting the deposition has another chance to ask questions. This continues until everyone is done.
As will be discussed shortly, deposition proceedings are recorded. If both attorneys agree, they can go “off the record” to clarify a point or discuss a disputed issue. Depositions are stressful and tempers often flare. In the event that the deposition can not be conducted in an orderly fashion, the attorney conducting the deposition may have to terminate it.
The Deposition Transcript
Every utterance made during a deposition is recorded. A court reporter usually records the deposition proceedings and creates an official deposition transcriptdeposition transcriptThe official transcription of the recording taken during a deposition. deposition transcriptThe official transcription of the recording taken during a deposition.. Methods of recording a deposition include stenographic recording (a traditional method that involves the use of a shorthand machine or written shorthand), digital audio recording, digital video recording, or some combination of these methods. Rule 30(b)(2) of the FRCP states that unless the court orders otherwise, a deposition “may be recorded by sound, sound-and-visual, or stenographic means.”
Either party may use the deposition transcript during the trial to prove a particular point or to impeachimpeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement. impeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement. (call into question) the credibility of a witness who says something during the trial different from what was stated during the deposition. For example, awitness in the Baranski case might state during the deposition that Peretto did not stop at the stop sign before crossing Mattis Avenue. If, at trial, the witness states that Peretto did stop at the stop sign before crossing Mattis Avenue, Baranski’s attorney could challenge the witness’s credibility on the basis of the deposition transcript. Exhibit 10.10 shows a page from a transcript of a deposition conducted by Gilmore in the case. The deponent was Julia Williams, an eyewitness to the accident. On the transcript, the letter “Q” precedes each question asked by Gilmore, and “A” precedes each of Williams’s answers.
Exhibit 10.10A Deposition Transcript (Excerpt)
Summarizing and Indexing the Deposition Transcript
Typically, the paralegal summarizes the deposition transcript. The summary, which along with the transcript will become part of the litigation file, allows members of the litigation team to review the information obtained from deponents during depositions.
If Lopez summarizes the deposition transcript of Julia Williams, the transcript is likely summarized sequentially—that is, in the order in which it was given during the deposition—as shown in Exhibit 10.11. Notice that the summary includes the page and line numbers in the deposition transcript where the full text of the information can be found.
Exhibit 10.11A Deposition Summary (Excerpt)
Often, in addition to summarizing the transcript, the paralegal provides an index. It is a list of topics (such as education, employment status, injuries, and medical costs) followed by the relevant page and line numbers of the deposition transcript. Together, the summary and the index allow anyone involved in the case to locate information quickly. More tips for summarizing a deposition are provided in the Developing Paralegal Skills feature.
Developing Paralegal Skills
Deposition Summaries
After a deposition is taken, each attorney orders a copy of the deposition transcript. Copies may be obtained in printed form or in an electronic file. When the transcript is received, the paralegal’s job is to prepare a summary of the testimony that was given. The summary is typically only a few pages in length.
The legal assistant must be very familiar with the lawsuit and the legal theories that are being pursued so that he or she can point out possible inconsistencies in the testimony or between the testimony and the pleadings. The paralegal might also give special emphasis to any testimony that will help to prove the client’s case in court.
After the deposition summary has been created, the paralegal places the summary in the litigation file, usually in a special discovery folder or binder within the larger file. The deposition summary will be used to prepare for future depositions, to prepare pretrial motions, and to impeach witnesses at the trial, should they give contradictory testimony.
Tips for Summarizing a Deposition
· Find out how the deposition is to be summarized—by chronology, by legal issue, by factual issues, or otherwise.
· Read through the deposition transcript and mark important pages.
· Be sure to include a reference to the page and line that is being summarized.
· Take advantage of software that can assist in summarizing the deposition transcript.
10-4aPurpose of Discovery
Discovery serves several purposes. It preserves evidence from witnesses who might not be available at the time of the trial or whose memories will fade as time passes. It can lead to an out-of-court settlement if one party decides that the opponent’s case is too strong to challenge. If the case does go to trial, discovery prevents surprises by giving parties access to evidence that might otherwise be hidden. This allows both parties to learn as much as they can about what to expect at a trial before they reach the courtroom. It also serves to narrow the issues so the trial focuses on the main questions in the case.
The FRCP and similar rules in the states set forth the guidelines for discovery activity. Discovery is intended to give the parties access to witnesses, documents, records, and other evidence that the opposing side has. The rules governing discovery are also designed to make sure that a witness or a party is not unduly harassed, that privileged informationprivileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order. privileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order. (communications that ordinarily may not be disclosed in court) is safeguarded, and that only matters relevant to the case at hand are discoverable. Courts generally allow broad discovery so that there are fewer surprises at trial.
Discovery methods include interrogatories, depositions, requests for production and physical examination, and requests for admission. Remember, as with most legal matters, you have an obligation to keep all such information confidential, as discussed in the Ethics Watch feature.
Ethics Watch
Keeping Client Information Confidential
As it happens, attorney Gilmore’s legal assistant, Lopez, is a friend of plaintiff Baranski’s sister. Lopez learns from the results of Baranski’s medical examination that Baranski has a serious illness. Lopez is sure that the sister, who quarreled with Baranski two months ago and hasn’t spoken to her since, is unaware of the illness and would probably be hurt if she learned that Lopez knew of it and didn’t tell her so she could make amends with Baranski.
Should Lopez tell her friend about the illness? No. This is confidential information at this point, which Lopez only became aware of by virtue of her job. Should the information be revealed publicly during the course of the trial, Lopez would be free to disclose it to her friend if the friend still remained unaware of it. In the meantime, Lopez is ethically (and legally) obligated to protect the information from anyone who is not working on the case, including her friend.
This behavior is consistent with the NFPA Model Disciplinary Rules and Ethical Considerations, Section EC-1.5(f): “A paralegal shall not engage in any indiscreet communications concerning clients.”
10-4bInterrogatories
InterrogatoriesInterrogatoriesA series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit (the plaintiff or the defendant). InterrogatoriesA series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit (the plaintiff or the defendant). are written questions that must be answered, in writing, by the parties to the lawsuit and then signed by the parties under oath. In the Baranski case, attorney Gilmore may ask paralegal Lopez to draft interrogatories to be sent to defendant Peretto.
Drafting Interrogatories
All discovery documents, including interrogatories, normally begin with a caption similar to the complaint caption illustrated earlier in this chapter. Following the caption, Lopez adds the name of the party who must answer the interrogatories, instructions to be followed by the party, and definitions of certain terms used in the interrogatories. The body of the document is the interrogatories themselves—that is, the questions that the opposing party must answer. Interrogatories end with a signature line for the attorney, followed by the attorney’s name and address.
REVIEW THE FILE. Before drafting the questions, Lopez carefully reviews the case file (including the pleadings and the evidence and other information she obtained during her preliminary investigation into Baranski’s claim). She will consult with Gilmore on the litigation strategy he believes should be pursued as the case moves forward. For further guidance, she might consult form books containing sample interrogatories, as well as interrogatories used in similar cases handled by the firm.
COURTS MAY LIMIT THE NUMBER OF INTERROGATORIES. Depending on the complexity of the case, interrogatories may be few or in the hundreds. Exhibit 10.7 illustrates the types of interrogatories that have traditionally been used in cases similar to the Baranski-Peretto case.
Exhibit 10.7Sample Interrogatories
Many state courts limit the number of interrogatories that can be used. FRCP 33 limits the number in federal court cases to twenty-five (unless a greater number are allowed by stipulation of the parties or by court order). Before drafting interrogatories, the paralegal should check the rules of the court in which an action is filed to find out if there are limits.
Answering Interrogatories
After receiving the interrogatories, Peretto must answer them within a specified time (thirty days under FRCP 33) in writing and under oath. Depending on the rules of the court, answers to interrogatories can often be handled electronically. Peretto will likely have substantial guidance from his attorney and his attorney’s paralegal in forming his answers. He must answer each question truthfully because he is under oath. His attorney will counsel him, though, on how to phrase his answers so that they are truthful and strategically sound. For example, she will advise him on how to limit his answers to prevent disclosing more information than necessary.
10-4cDepositions
Like interrogatories, depositionsdepositionsA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded. depositionsA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded. are given under oath. However, depositions are usually conducted orally (except in rare circumstances when the party cannot be deposed in person or by telephone or videoconference). Furthermore, unlike interrogatories, they may be taken from witnesses as well as parties.
In a deposition, the attorney is able to question the person being deposed (the deponentdeponentA party or witness who testifies under oath during a deposition. deponentA party or witness who testifies under oath during a deposition.) in person and follows up with new questions that come to mind. The attorney is not limited in the number of questions asked in a deposition, whereas most courts limit the number of interrogatory questions. Moreover, because the questioning is often done in person, the deponent must answer without asking an attorney how to respond.
When both the defendant and the plaintiff are located in the same jurisdiction, the site of the deposition is usually the offices of the attorney requesting the deposition. When the parties are in different jurisdictions, other arrangements may be made. In the Baranski case, attorney Gilmore may go to Peretto’s city and depose Peretto in the office of Peretto’s attorney, Cameron. Or the parties may agree to do a videoconference or phone call for the deposition.
Procedure for Taking Depositions
The attorney wishing to depose a party or witness must give reasonable notice in writing to all other parties in the case and to the deposed. This is done by serving the opposing attorney (or attorneys) with a notice of the time and place of the deposition and the name of the person being examined (see Exhibit 10.8).
Exhibit 10.8Notice of Taking Deposition
If the person scheduled to be deposed will not attend voluntarily, a paralegal may need to prepare a subpoena for deposition and submit it to the clerk of the court for signature. Generally, a subpoenasubpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter. subpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter. is an order issued by the court clerk directing a party to appear and to testify at trial, as will be discussed in Chapter 12. A subpoena for deposition orders the person to appear at a deposition rather than in a court proceeding. A subpoena should also be prepared if the attorney wants the deponent to bring certain documents or tangible things to the deposition (this is called a subpoena duces tecum). Court rules differ on how subpoenas may be issued. Attorneys are often allowed to issue them in the name of the court.
Under FRCP 30 and 31, court permission is required for depositions to be taken before the parties have made the initial disclosures required by Rule 26 (discussed later in this chapter). Also, court approval may be required if either party wants to take more than one deposition from the same person or more than a total of ten depositions in the case. Always check the relevant court rules when planning discovery strategy.
Drafting Deposition Questions
Depositions are conducted by attorneys. Paralegals may attend depositions but do not ask questions. Deposition questions are often drafted by paralegals, however. In the Baranski case, for example, Gilmore might ask Lopez to draft questions for a deposition of defendant Peretto or someone else, such as an eyewitness to the accident. For Peretto’s deposition, Lopez might draft questions similar to those presented in Exhibit 10.9. Gilmore can then use Lopez’s questions as a checklist during the deposition.
Exhibit 10.9Sample Deposition Questions
Note, though, that Gilmore’s questions are not limited to the questions in the list. Unforeseen questions may arise as Gilmore learns new information during the deposition. Also, the deponent’s answer to one question may reveal the answer to another, so not all the questions on the checklist will need to be asked.
Preparing the Client for a Deposition
No attorney can predict a deponent’s answers beforehand. Spontaneous and sometimes contradictory statements can seriously damage the deponent’s case. For this reason, the deposed parties and their lawyers prepare for depositions by formulating answers to likely questions. For example, if defendant Peretto’s attorney plans to depose plaintiff Baranski, attorney Gilmore might have Baranski come to the office for a run-through of possible questions that Peretto’s attorney might ask her.
This preparation does not mean that the lawyer tells the deponent what to say. Instead, the lawyer offers suggestions as to how the answers to certain questions should be phrased. The answers must be truthful, but the truth can be presented in many ways.
A practice deposition can also help laypeople become accustomed to the unfamiliar format and can reduce stress. This lessens the chances that the witness will make an error during the deposition due to nervousness. For example, Gilmore would caution Baranski to limit her responses to the questions and not engage in speculative answers. If Baranski was asked whether she had ever been involved in an automobile accident before, for example, Gilmore would probably caution her to give a simple (but truthful) “yes” or “no” answer. Gilmore normally would permit Baranski to provide additional information only in response to precisely phrased questions.
The Role of the Deponent’s Attorney
The deponent’s attorney attends the deposition, but the attorney’s role is limited. Under FRCP 30, the attorney may instruct a deponent to not answer a question only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion to terminate the deposition. In other words, if Baranski was deposed by Peretto’s attorney, Cameron, she would have to answer Cameron’s questions even if the questions were not clearly relevant to the issues of the case—unless the court had previously limited this line of questioning. The deponent’s attorney, Gilmore, could object only to questions that called for privileged information to be disclosed. Under Rule 30, that attorney is required to state objections concisely, in a nonargumentative and nonsuggestive manner.
The deponent’s attorney or the other party’s attorney may also ask questions during the deposition to clarify a point or to establish facts needed for a motion. These questions are asked after the attorney conducting the deposition has finished. After the deponent’s attorney has asked questions, the attorney conducting the deposition has another chance to ask questions. This continues until everyone is done.
As will be discussed shortly, deposition proceedings are recorded. If both attorneys agree, they can go “off the record” to clarify a point or discuss a disputed issue. Depositions are stressful and tempers often flare. In the event that the deposition can not be conducted in an orderly fashion, the attorney conducting the deposition may have to terminate it.
The Deposition Transcript
Every utterance made during a deposition is recorded. A court reporter usually records the deposition proceedings and creates an official deposition transcriptdeposition transcriptThe official transcription of the recording taken during a deposition. deposition transcriptThe official transcription of the recording taken during a deposition.. Methods of recording a deposition include stenographic recording (a traditional method that involves the use of a shorthand machine or written shorthand), digital audio recording, digital video recording, or some combination of these methods. Rule 30(b)(2) of the FRCP states that unless the court orders otherwise, a deposition “may be recorded by sound, sound-and-visual, or stenographic means.”
Either party may use the deposition transcript during the trial to prove a particular point or to impeachimpeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement. impeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement. (call into question) the credibility of a witness who says something during the trial different from what was stated during the deposition. For example, awitness in the Baranski case might state during the deposition that Peretto did not stop at the stop sign before crossing Mattis Avenue. If, at trial, the witness states that Peretto did stop at the stop sign before crossing Mattis Avenue, Baranski’s attorney could challenge the witness’s credibility on the basis of the deposition transcript. Exhibit 10.10 shows a page from a transcript of a deposition conducted by Gilmore in the case. The deponent was Julia Williams, an eyewitness to the accident. On the transcript, the letter “Q” precedes each question asked by Gilmore, and “A” precedes each of Williams’s answers.
Exhibit 10.10A Deposition Transcript (Excerpt)
Summarizing and Indexing the Deposition Transcript
Typically, the paralegal summarizes the deposition transcript. The summary, which along with the transcript will become part of the litigation file, allows members of the litigation team to review the information obtained from deponents during depositions.
If Lopez summarizes the deposition transcript of Julia Williams, the transcript is likely summarized sequentially—that is, in the order in which it was given during the deposition—as shown in Exhibit 10.11. Notice that the summary includes the page and line numbers in the deposition transcript where the full text of the information can be found.
Exhibit 10.11A Deposition Summary (Excerpt)
Often, in addition to summarizing the transcript, the paralegal provides an index. It is a list of topics (such as education, employment status, injuries, and medical costs) followed by the relevant page and line numbers of the deposition transcript. Together, the summary and the index allow anyone involved in the case to locate information quickly. More tips for summarizing a deposition are provided in the Developing Paralegal Skills feature.
Developing Paralegal Skills
Deposition Summaries
After a deposition is taken, each attorney orders a copy of the deposition transcript. Copies may be obtained in printed form or in an electronic file. When the transcript is received, the paralegal’s job is to prepare a summary of the testimony that was given. The summary is typically only a few pages in length.
The legal assistant must be very familiar with the lawsuit and the legal theories that are being pursued so that he or she can point out possible inconsistencies in the testimony or between the testimony and the pleadings. The paralegal might also give special emphasis to any testimony that will help to prove the client’s case in court.
After the deposition summary has been created, the paralegal places the summary in the litigation file, usually in a special discovery folder or binder within the larger file. The deposition summary will be used to prepare for future depositions, to prepare pretrial motions, and to impeach witnesses at the trial, should they give contradictory testimony.
Tips for Summarizing a Deposition
· Find out how the deposition is to be summarized—by chronology, by legal issue, by factual issues, or otherwise.
· Read through the deposition transcript and mark important pages.
· Be sure to include a reference to the page and line that is being summarized.
· Take advantage of software that can assist in summarizing the deposition transcript.
10-4dRequests for Production and Physical Examination
Another form of discovery is a request for the production of documents or tangible things or for permission to enter property for inspection and other purposes. FRCP 34 authorizes each party to request evidence from any other party. If the item requested is large or cannot be “produced” for some reason (Peretto’s van for example), then the party can request permission to enter on the other party’s land to inspect, test, sample, and photograph the item. In federal courts, the duty of disclosure under FRCP 26 has greatly decreased the need to file such production requests.
Requests for Production and Physical Examination
Another form of discovery is a request for the production of documents or tangible things or for permission to enter property for inspection and other purposes. FRCP 34 authorizes each party to request evidence from any other party. If the item requested is large or cannot be “produced” for some reason (Peretto’s van for example), then the party can request permission to enter on the other party’s land to inspect, test, sample, and photograph the item. In federal courts, the duty of disclosure under FRCP 26 has greatly decreased the need to file such production requests.
When the mental or physical condition of a party is in controversy, the opposing party may request the court to order the party to submit to a physical or mental examination by a licensed examiner. For example, if Peretto claims that Baranski’s injuries were the result of a preexisting medical condition rather than the collision, defense attorney Cameron may file a request to have Baranski examined by a physician. Because the existence, nature, and extent of Baranski’s injuries are important in calculating the damages that she might be able to recover from Peretto, the court may grant the request.
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Requests for Admission
During discovery, a party can also request that the opposing party admit the truth of matters relating to the case. For example, Baranski’s attorney can request that Peretto admit that he owned the car involved in the accident. Such admissions save time at trial because the parties do not spend time proving admitted facts. Any matter admitted under such a request is established as true for the trial. FRCP 36 permits requests for admission but requires that a request cannot be made, without the court’s permission, before the pre-discovery meeting of the attorneys.
The Duty to Disclose under FRCP 26
Each party has a duty to disclose to the other party specified types of information prior to the discovery stage of litigation. Under FRCP Rule 26(f ), once a lawsuit is brought, the parties (the plaintiff and defendant and/or their attorneys) must schedule a pre-discovery meeting to discuss the nature of the lawsuit, any defenses that may be raised against the claims being brought, and possibilities for promptly settling or otherwise resolving the dispute. The meeting should take place as soon as practicable but at least fourteen days before a scheduling conference is held or a scheduling order issued.
Either at this meeting or within ten days after it, the parties must also make the initial disclosures described below and submit to the court a plan for discovery. As the trial date approaches, the attorneys must make subsequent disclosures relating to witnesses, documents, and other relevant information.
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The Duty to Disclose under FRCP 26
Each party has a duty to disclose to the other party specified types of information prior to the discovery stage of litigation. Under FRCP Rule 26(f ), once a lawsuit is brought, the parties (the plaintiff and defendant and/or their attorneys) must schedule a pre-discovery meeting to discuss the nature of the lawsuit, any defenses that may be raised against the claims being brought, and possibilities for promptly settling or otherwise resolving the dispute. The meeting should take place as soon as practicable but at least fourteen days before a scheduling conference is held or a scheduling order issued.
Either at this meeting or within ten days after it, the parties must also make the initial disclosures described below and submit to the court a plan for discovery. As the trial date approaches, the attorneys must make subsequent disclosures relating to witnesses, documents, and other relevant information.
These rules do not replace the methods of discovery discussed in the preceding section. Rather, they impose a duty on attorneys to disclose specified information to opposing counsel early in the litigation process so that discovery time and costs can be reduced. Attorneys use discovery tools (such as depositions and interrogatories) to obtain information, but they cannot do so until the pre-discovery meeting has been held and initial disclosures have been made.
Failure to Disclose
A party is not excused from disclosing relevant information simply because the party has not yet completed an investigation into the case or because the other party has not yet made disclosures. FRCP 37(c) makes clear that the failure to make initial disclosures can result in serious sanctions.
If a party fails to make required disclosures, that party will not be able to use the information as evidence at trial. In addition, the court may impose other sanctions, such as ordering the party to pay reasonable expenses, including attorneys’ fees, created by the failure to disclose. In sum, Gilmore and Lopez need to make sure that all relevant information (that is not privileged) is disclosed, or Gilmore will not be able to use it in court (and may face other sanctions).
Discovery Plan
As mentioned above, at the initial meeting of the parties, the attorneys must work out a discovery plan and submit a report describing the plan to the court within ten days of the meeting. The type of information to be included in the discovery plan is illustrated in Exhibit 10.12, which shows Form 35, a form created for this purpose. As indicated by the form, Rule 26(f) allows the attorneys room to negotiate details of discovery, including time schedules to be followed.
Exhibit 10.12Form 35—Report of Parties’ Planning Meeting (Discovery Plan)
In the Baranski case, paralegal Lopez will make sure that attorney Gilmore takes a copy of Form 35 with him to the initial pre-discovery meeting of the parties to use as a checklist, along with tentative dates by which they believe they can have completed discovery. After the attorneys decide on the details of the plan to be proposed to the court, Gilmore may have Lopez draft a final version of the plan for his review and signature.
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Subsequent Disclosures
In addition to the initial disclosures just discussed, each party must make other disclosures prior to trial. All subsequent disclosures must also be in writing, signed by the attorneys, and filed with the court. These include information relating to expert witnesses, other witnesses, and exhibits that may be used at trial.
Expert Witnesses
Under FRCP 26(a)(2), parties must disclose to other parties the names of expert witnesses who may be called to testify during the trial. Additionally, the following information about each expert must be disclosed in a report signed by the expert witness:
· A statement by the expert indicating the opinions that will be expressed, the basis for the opinions, and the data or information considered by the witness when forming the opinions.
· Exhibits that will be used to summarize or support the opinions.
· The qualifications of the expert witness, including a list of all publications authored by the witness in the last ten years.
· The compensation to be paid to the expert witness.
· A list of other cases in which the witness has testified as an expert at trial or by deposition in the preceding four years.
These disclosures must be made at times set by the court. If the court does not indicate any times, then they must be made at least ninety days before the trial date.
Other Pretrial Disclosures
Under FRCP 26(a)(3), each party must also disclose to the other party the following information about witnesses who will testify at trial or any exhibits that may be used:
· A list of the names, addresses, and telephone numbers of other witnesses who may be called during the trial to give testimony. The list must indicate whether the witness “will” or “may” be called.
· A list of witnesses whose deposition testimony may be offered during the trial and a transcript of the relevant sections of the deposition testimony, if the testimony was not taken stenographically.
· A list of exhibits that indicates which exhibits will and may be offered.
These disclosures must be made at least thirty days before trial, unless the court orders otherwise. Once disclosures have been made, the opposing party has fourteen days to file with the court any objections to the use of any deposition or exhibit. If objections are not made, they are presumed to be waived (unless a party can show good cause why he or she failed to object to the disclosures previously).
An attorney’s duty to disclose relevant information is ongoing throughout the pretrial stage. Any time an attorney learns new relevant supplemental information concerning statements or responses made earlier, that information must be disclosed to the other party. An important task for many paralegals is keeping track of the opposing parties’ discovery requests so the attorney can be alerted if a supplemental filing is necessary.
Discovery of Electronic Evidence
Electronic evidence, or e-evidence, includes computer-generated or electronically recorded information, such as e-mail, voice mail, Facebook, Google+, Instagram, or Twitter postings on social media sites, blog posts, documents, and other data that may be posted on a cloud server. E-evidence has become increasingly important because it can reveal facts found only in electronic format. The FRCP and state rules specifically allow discovery of electronic “data compilations.” As in other areas of the practice of law, electronic tools are playing a growing part of discovery.
Discovery of Electronic Evidence
Electronic evidence, or e-evidence, includes computer-generated or electronically recorded information, such as e-mail, voice mail, Facebook, Google+, Instagram, or Twitter postings on social media sites, blog posts, documents, and other data that may be posted on a cloud server. E-evidence has become increasingly important because it can reveal facts found only in electronic format. The FRCP and state rules specifically allow discovery of electronic “data compilations.” As in other areas of the practice of law, electronic tools are playing a growing part of discovery.
10-6aThe Advantages of Electronic Evidence
Most information stored on computers is never printed on paper. When a person works on a computer, information is recorded on a hard drive even if not “saved” by the user. This information, called metadatametadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted. metadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted., is the hidden data kept by the computer about a file, including location, path, creator, date created, date last accessed, earlier versions, passwords, and formatting. It reveals information about how, when, and by whom a file was created, accessed, modified, and transmitted. This information can only be obtained from the file in its electronic format.
E-Mail Communications
Billions of e-mails are sent annually. E-mail has become fertile ground for evidence in litigation and has been the “smoking gun” in some cases. Many people converse casually in e-mail communications, as if talking to a friend. This makes e-mail believable and compelling evidence—which can be damaging if discovered by outsiders.
In addition, in its electronic form, e-mail contains information that provides links to other e-mails, e-mail attachments, erased files, and metadata. Metadata reveal the identity of any person who received copies of an e-mail message (even “blind” copies). Thus, e-evidence can be used to trace a message to its true originator, reconstruct an e-mail conversation, and establish a timeline of the events in dispute (who knew what, when). Attorneys also use it to verify clients’ claims or discredit the claims of the opposition.
Deleted Files Can Be Retrieved
A major advantage of e-evidence is that even deleted files can often be retrieved from within a computer. Deleting a file does not destroy the data, but simply makes the space occupied by the file available to be overwritten by new information. Until that space is actually used for new data (which may never occur), experts can retrieve the deleted record.
The use of backup drives and cloud storage makes it even less likely that simply erasing a file actually deletes it. Online storage servers are often themselves backed up so it is possible to locate copies of files deleted from individual computers. Postings on blogs or other websites may be accessed using backups of a Web-hosting service. Never assume that a file from a computer connected to a network is gone just because it was erased from that computer.
Experts have even been able to retrieve data, in whole or in part, from computers that have been damaged by water, fire, or severe impact. Therefore, do not assume that e-evidence is not available just because a file was deleted, a computer was damaged, or a utility program was run. Technical issues in discovery are growing ever more complex, as discussed in Technology and Today’s Paralegal.
Who Bears the Costs of Electronic Discovery?
Traditionally, the party responding to a discovery request pays the expenses involved in obtaining the requested materials. If compliance would be too burdensome or costly, however, the judge could either limit the scope of the request or shift some or all of the costs to the requesting party. How do these traditional rules governing discovery apply to requests for electronic evidence?
Why Courts Might Shift the Costs of Electronic Discovery
Electronic discovery has dramatically increased the costs associated with complying with discovery requests. It is no longer simply a matter of photocopying paper documents. Now the responding party may need to hire computer forensics (qualified scientific) experts to make “image” copies of desktop, laptop, and server hard drives, as well as removable storage media (such as flash drives), backup drives, and server-based systems, voice mail, smartphones, and any other form of digitally stored data.
In cases involving multiple parties or large corporations with many offices and employees, the electronic discovery process can easily run into hundreds of thousands of dollars—or more.
Costly Discovery
For example, Viacom, which owns Comedy Central and other television channels, sued YouTube, owned by Google, for more than $1 billion. Viacom claimed that YouTube committed copyright violations by allowing clips from Viacom’s television shows to be posted on YouTube without Viacom’s permission. Viacom hired a company, BayTSP, to search for possible violations on YouTube. BayTSP identified more than 150,000 clips posted on YouTube. Viacom claimed losses from each such posting.
YouTube demanded to see evidence of the violations. BayTSP estimated that it had gathered more than 1 million documents, all electronic, related to the clip postings. It protested to the court that the document request was unreasonable. BayTSP spent 2,000 hours over six months searching and reviewing the documents. Using electronic filters, it narrowed the list to 650,000 potentially relevant documents. The court allowed YouTube’s request for these documents to go forward. Given the amount at stake in the litigation, YouTube was within its rights, and BayTSP had to provide the records. The cost of document production would be borne by BayTSP or, the court noted, probably by Viacom because BayTSP worked for it. The court held, however, that when costs are burdensome, a court may order the costs to be split between defendant and plaintiff.
What Factors Do Courts Consider in Deciding To Shift Costs?
When is it appropriate for a court to shift cost from one party to another in discovery? The FRCP advisory committee lists seven factors:
1. the specificity of the discovery request;
2. the quantity of information available from other and more easily accessed sources;
3. the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
4. the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources;
5. predictions as to the importance and usefulness of the further information;
6. the importance of the issues at stake in the litigation;
7. and the parties’ resources.
Technology Tip
Paralegals should keep in mind not only the high costs of some electronic discovery requests but the possibility that the court may shift some of these costs. Suppose, for example, you are assisting a corporate defendant in a product liability lawsuit brought by a plaintiff who was seriously harmed by one of the defendant’s products. If the plaintiff requests extensive electronic evidence during discovery, the defendant corporation may be required to pay a significant portion of the costs of the requested discovery.
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10-6bThe Sources of Electronic Evidence
The key to conducting electronic discovery is developing an understanding of the kinds of information it can provide so you know where to look for particular information. Generally, data can be located in active files, in backup files, or as residual data. Active files are currently accessible on the computer (documents and e-mail, for example). Backup files have been copied to other locations such as flash drives or to remote servers. Residual data appear to be gone but are still recoverable from somewhere on the computer system by special software.
Backup Data
Backup files can be a hidden treasure for the legal team. Reviewing backup copies of documents and e-mail provides useful information about how a particular matter progressed over several weeks or months. Because the location of the data depends on the backup practice in use, you need to find out what the policy is as soon as you can during discovery. See the Developing Paralegal Skills feature for more tips on e-discovery.
Developing Paralegal Skills
Electronic Discovery
Paralegals must be prepared to deal with electronic discovery. This means not only formulating electronic discovery plans, but making sure to preserve the integrity of any electronic evidence acquired. It is important, too, to remember that e-evidence is fragile. Although—as discussed in the chapter—it may be difficult to permanently delete files from a computer system, it is not impossible. Every time a user enters new data, loads new software, or performs routine maintenance procedures, the data on the computer are permanently altered.
Firms with careful data retention policies regularly perform procedures to eliminate such files. Just booting up a computer can change dates and times on numerous files. The following are general guidelines to follow in conducting e-discovery.
Tips for Conducting E-Discovery
· Immediately write a preservation-of-evidence letter to all parties involved, including your client, at the outset of the case. This letter informs the parties that they have a duty to take immediate action to preserve any potential electronic evidence.
· Use interrogatories to gather information about the opposing party’s computer system so that you can learn about the various technologies used by that party.
· Follow up with depositions. Once you know the names of the parties who oversee the system or have special knowledge of it, take depositions from them.
· After you have found out the details of where electronic evidence is located, draft a request for production of the evidence.
· When the e-evidence is acquired, determine how best to manage, review, and interpret the data, which may involve using the services of an outside company that specializes in this field. Special software can help manage files of millions of e-mails or large amounts of other e-evidence.
Backup files contain not only e-mail messages and word-processing documents, but also other embedded information that can be useful. When computers are networked, audit trails that keep track of network usage may be available. An audit trail will tell you who accessed the system, when it was accessed, and whether those who accessed the system copied, downloaded, modified, or deleted any files. Some word-processing software allows users to insert hidden comments or track changes while drafting and revising documents. These comments and revisions can also be accessed from the electronic version of the backup file.
Other Sources of E-Evidence
Electronic evidence is not limited to the data on computer systems. It includes all electronically recorded information, such as voice mail, video, electronic calendars, and phone logs on smartphones, iPads, tablets, laptops, and other devices that digitally store data. Use traditional discovery tactics (such as interrogatories and depositions) to find out about other sources of potential e-evidence. Consider all possible sources that might prove fruitful, but such requests must be reasonable and in good faith.
10-6cThe Special Requirements of Electronic Evidence
While courts allow discovery of electronic evidence, judges know that electronic evidence can be manipulated. To ensure that the evidence obtained during discovery will be admissible, you must do two things. First, make sure that you obtain an exact image copy of the electronic evidence. Second, make sure you can prove that nothing has been changed from the time the image copy was made. Keeping a backup copy of the material as received from the other party is one way to do this. Your law firm will likely have policies on how to handle e-evidence.
Acquiring an Image Copy
To use any evidence, you must convince the court that it is authentic. In the case of electronic evidence, you must show that the electronic version is the same as the version that was present on the target system. The way to do this is to have an image copy made.
Suppose the target system is a computer hard drive. Making an image copy involves creating an electronic image of the drive being copied. The copy would capture all data, including residual data. This is different from the usual file-by-file copying method.
Making an image copy of a computer drive is best left to an expert in computer forensics. These experts collect, preserve, and analyze electronic evidence and testify in court if needed.
Preserving the Chain of Custody
Once you have acquired an exact copy of the electronic evidence, you must establish and maintain a chain of custody to avoid any claims that the evidence has been tampered with. The phrase chain of custodychain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial. chain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial. refers to the movement and location of evidence from the time it is obtained to the time it is presented in court.
It is crucial when dealing with electronic evidence to track the evidence from its original source to its submission to the court. Tracking provides the court assurance that nothing has been added, changed, or deleted. The original image copy should be protected so it is tamperproof, labeled as the original, and kept in a secure location. Typically, a forensic specialist copies the original data that are write-protected and scanned for viruses. You may need to review the evidence only on a secure computer not connected to the Internet to protect data integrity.
Federal Rule of Evidence 502
To deal with this problem, Congress changed Federal Rule of Evidence 502. Under it, if there is an accidental release of material that should have been protected, the court may rule that protection was not waived by accidental disclosure. Courts consider the following factors in deciding if a privileged document has been lost to the opposing party or is still protected:
1. the reasonableness of precautions taken to prevent inadvertent disclosure in view of the extent of document production,
2. the number of inadvertent disclosures,
3. the extent of the disclosures,
4. the promptness of steps taken to remedy the disclosure, and
5. whether interests of justice would be served by relieving the party of its error of disclosing a protected document.
Paralegals often play a key role in organizing documents, so they must be alert to such issues. In complex cases involving a huge number of electronic documents, firms that are experts in such matters can be hired to help filter and sort documents.
10-6aThe Advantages of Electronic Evidence
Most information stored on computers is never printed on paper. When a person works on a computer, information is recorded on a hard drive even if not “saved” by the user. This information, called metadatametadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted. metadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted., is the hidden data kept by the computer about a file, including location, path, creator, date created, date last accessed, earlier versions, passwords, and formatting. It reveals information about how, when, and by whom a file was created, accessed, modified, and transmitted. This information can only be obtained from the file in its electronic format.
E-Mail Communications
Billions of e-mails are sent annually. E-mail has become fertile ground for evidence in litigation and has been the “smoking gun” in some cases. Many people converse casually in e-mail communications, as if talking to a friend. This makes e-mail believable and compelling evidence—which can be damaging if discovered by outsiders.
In addition, in its electronic form, e-mail contains information that provides links to other e-mails, e-mail attachments, erased files, and metadata. Metadata reveal the identity of any person who received copies of an e-mail message (even “blind” copies). Thus, e-evidence can be used to trace a message to its true originator, reconstruct an e-mail conversation, and establish a timeline of the events in dispute (who knew what, when). Attorneys also use it to verify clients’ claims or discredit the claims of the opposition.
Deleted Files Can Be Retrieved
A major advantage of e-evidence is that even deleted files can often be retrieved from within a computer. Deleting a file does not destroy the data, but simply makes the space occupied by the file available to be overwritten by new information. Until that space is actually used for new data (which may never occur), experts can retrieve the deleted record.
The use of backup drives and cloud storage makes it even less likely that simply erasing a file actually deletes it. Online storage servers are often themselves backed up so it is possible to locate copies of files deleted from individual computers. Postings on blogs or other websites may be accessed using backups of a Web-hosting service. Never assume that a file from a computer connected to a network is gone just because it was erased from that computer.
The same is true of e-mails and other messages. Many people think that when they delete an e-mail and empty the “trash,” the message is gone. As just described, however, deleted data remain on the computer until overwritten by new data (or wiped out by utility software) and usually remain in a central server. Similarly, tweets may have been “re-tweeted,” blog posts may have been distributed through networks of servers, and so forth.
Experts have even been able to retrieve data, in whole or in part, from computers that have been damaged by water, fire, or severe impact. Therefore, do not assume that e-evidence is not available just because a file was deleted, a computer was damaged, or a utility program was run. Technical issues in discovery are growing ever more complex, as discussed in Technology and Today’s Paralegal.
10-6bThe Sources of Electronic Evidence
The key to conducting electronic discovery is developing an understanding of the kinds of information it can provide so you know where to look for particular information. Generally, data can be located in active files, in backup files, or as residual data. Active files are currently accessible on the computer (documents and e-mail, for example). Backup files have been copied to other locations such as flash drives or to remote servers. Residual data appear to be gone but are still recoverable from somewhere on the computer system by special software.
Backup Data
Backup files can be a hidden treasure for the legal team. Reviewing backup copies of documents and e-mail provides useful information about how a particular matter progressed over several weeks or months. Because the location of the data depends on the backup practice in use, you need to find out what the policy is as soon as you can during discovery. See the Developing Paralegal Skills feature for more tips on e-discovery.
Electronic Discovery
Paralegals must be prepared to deal with electronic discovery. This means not only formulating electronic discovery plans, but making sure to preserve the integrity of any electronic evidence acquired. It is important, too, to remember that e-evidence is fragile. Although—as discussed in the chapter—it may be difficult to permanently delete files from a computer system, it is not impossible. Every time a user enters new data, loads new software, or performs routine maintenance procedures, the data on the computer are permanently altered.
Firms with careful data retention policies regularly perform procedures to eliminate such files. Just booting up a computer can change dates and times on numerous files. The following are general guidelines to follow in conducting e-discovery.
Tips for Conducting E-Discovery
· Immediately write a preservation-of-evidence letter to all parties involved, including your client, at the outset of the case. This letter informs the parties that they have a duty to take immediate action to preserve any potential electronic evidence.
· Use interrogatories to gather information about the opposing party’s computer system so that you can learn about the various technologies used by that party.
· Follow up with depositions. Once you know the names of the parties who oversee the system or have special knowledge of it, take depositions from them.
· After you have found out the details of where electronic evidence is located, draft a request for production of the evidence.
· When the e-evidence is acquired, determine how best to manage, review, and interpret the data, which may involve using the services of an outside company that specializes in this field. Special software can help manage files of millions of e-mails or large amounts of other e-evidence.
Backup files contain not only e-mail messages and word-processing documents, but also other embedded information that can be useful. When computers are networked, audit trails that keep track of network usage may be available. An audit trail will tell you who accessed the system, when it was accessed, and whether those who accessed the system copied, downloaded, modified, or deleted any files. Some word-processing software allows users to insert hidden comments or track changes while drafting and revising documents. These comments and revisions can also be accessed from the electronic version of the backup file.
Other Sources of E-Evidence
Electronic evidence is not limited to the data on computer systems. It includes all electronically recorded information, such as voice mail, video, electronic calendars, and phone logs on smartphones, iPads, tablets, laptops, and other devices that digitally store data. Use traditional discovery tactics (such as interrogatories and depositions) to find out about other sources of potential e-evidence. Consider all possible sources that might prove fruitful, but such requests must be reasonable and in good faith.
10-6cThe Special Requirements of Electronic Evidence
While courts allow discovery of electronic evidence, judges know that electronic evidence can be manipulated. To ensure that the evidence obtained during discovery will be admissible, you must do two things. First, make sure that you obtain an exact image copy of the electronic evidence. Second, make sure you can prove that nothing has been changed from the time the image copy was made. Keeping a backup copy of the material as received from the other party is one way to do this. Your law firm will likely have policies on how to handle e-evidence.
Acquiring an Image Copy
To use any evidence, you must convince the court that it is authentic. In the case of electronic evidence, you must show that the electronic version is the same as the version that was present on the target system. The way to do this is to have an image copy made.
Suppose the target system is a computer hard drive. Making an image copy involves creating an electronic image of the drive being copied. The copy would capture all data, including residual data. This is different from the usual file-by-file copying method.
Making an image copy of a computer drive is best left to an expert in computer forensics. These experts collect, preserve, and analyze electronic evidence and testify in court if needed.
Preserving the Chain of Custody
Once you have acquired an exact copy of the electronic evidence, you must establish and maintain a chain of custody to avoid any claims that the evidence has been tampered with. The phrase chain of custodychain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial. chain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial. refers to the movement and location of evidence from the time it is obtained to the time it is presented in court.
It is crucial when dealing with electronic evidence to track the evidence from its original source to its submission to the court. Tracking provides the court assurance that nothing has been added, changed, or deleted. The original image copy should be protected so it is tamperproof, labeled as the original, and kept in a secure location. Typically, a forensic specialist copies the original data that are write-protected and scanned for viruses. You may need to review the evidence only on a secure computer not connected to the Internet to protect data integrity.
Federal Rule of Evidence 502
The use of electronic evidence can result in a huge number of documents being made available to an opposing party. This availability has increased the number of documents accidentally released. In many cases, for example, a party had the right to access e-mails of the opposing party relating to a particular matter. While attempts are made to filter out non-relevant e-mails, some e-mails that should have been protected by attorney-client confidentiality rules have been accidentally included among the thousands of e-mails seen by the opposing party.
To deal with this problem, Congress changed Federal Rule of Evidence 502. Under it, if there is an accidental release of material that should have been protected, the court may rule that protection was not waived by accidental disclosure. Courts consider the following factors in deciding if a privileged document has been lost to the opposing party or is still protected:
1. the reasonableness of precautions taken to prevent inadvertent disclosure in view of the extent of document production,
2. the number of inadvertent disclosures,
3. the extent of the disclosures,
4. the promptness of steps taken to remedy the disclosure, and
5. whether interests of justice would be served by relieving the party of its error of disclosing a protected document.
Paralegals often play a key role in organizing documents, so they must be alert to such issues. In complex cases involving a huge number of electronic documents, firms that are experts in such matters can be hired to help filter and sort documents.
10-7Maintenance of Electronic Records
10-7 Maintenance of Electronic Records
To this point we have considered the collection of electronic matter. A related issue for all firms is the need to put in place a records management system before litigation arises to minimize the burden of responding to discovery requests. Because litigation is a virtual certainty for many businesses, the up-front investment is often worthwhile.
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10-7a Do Not Keep What Is Not Needed
The key to an e-discovery-ready records-management system is to ensure that records are properly categorized and stored. Records not required by business needs or legal requirements are destroyed and “scrubbed” from computers by programs that ensure actual deletion of the material. In a recent survey, more than two-thirds of corporate legal departments sought a records-management system that covered everything from data preservation to production of documents.
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10-7b Cost and Risk Controls
Important issues for clients are controlling costs and reducing risks. Among the most costly aspects of document production is review for relevance and privilege, a process that may consume more than half of a litigation budget. Automated processes can help reduce costs by excluding documents based on criteria such as file type, dates, storage location, or the presence or absence of key words.
Risk control refers to the measures used to identify, preserve, and organize documents. Errors can lead to fines or other penalties. Among the most difficult issues to address is how to handle e-mail and calendar archives. Not only must the e-mails themselves be saved, but also the metadata about the e-mails, such as storage location, creation dates and times, path information, and so on.
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10-8 Pretrial Motions
As we discussed earlier in the chapter, and as shown in Exhibit 10.13 below, there are a number of motions that may be made before trial. In Chapter 6 we noted that many conflicts are settled by some form of alternative dispute resolution before trial. When that happens, and the parties reach a settlement agreement, the court is informed and, after reviewing the agreement, usually approves it and dismisses the case.
10-8a Summary Judgment
If there is no settlement, one of the last substantive motions likely to be filed before trial is a motion for summary judgment . The party filing the motion is asking the court to grant a judgment in his or her favor without a trial because there is no real disagreement about the relevant facts. Once discovery is complete, the parties can argue that no material (relevant) facts are in dispute and the only question is how the law applies to undisputed facts.
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10-8aSummary Judgment
If there is no settlement, one of the last substantive motions likely to be filed before trial is a motion for summary judgmentmotion for summary judgmentA motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial. A motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery. motion for summary judgmentA motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial. A motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery.. The party filing the motion is asking the court to grant a judgment in his or her favor without a trial because there is no real disagreement about the relevant facts. Once discovery is complete, the parties can argue that no material (relevant) facts are in dispute and the only question is how the law applies to undisputed facts.
10-8bConsiderations by the Court
When the court considers a motion for summary judgment, it considers the evidence the parties have gathered for trial. To support the motion, a party submits evidence obtained, such as depositions and interrogatories, and argues that, given the facts, the other party cannot prevail at trial. The court reviews the evidence in the light most favorable to the nonmoving party. That is, the court must be satisfied that it has drawn all permissible inferences in that party’s favor in interpreting the evidence. This motion is more likely to be successfully used by the defendant, but in about a quarter of cases in which the motion is used, it is successful for the plaintiff.
Motion by Defendant
In the Baranski case, for example, suppose it is established that Peretto was in another state at the time of the accident. Peretto’s attorney could make a motion for summary judgment in Peretto’s favor and attach to the motion a witness’s sworn statement that Peretto was in the other state at the time of the accident. Unless Baranski’s attorney could bring in other evidence to show that Peretto was at the scene of the accident, Peretto’s motion for summary judgment would be granted.
A motion for summary judgment would also be appropriate if Baranski had previously signed a release waiving her right to sue Peretto on the claim. In that situation, attorney Cameron would attach a copy of the release to the motion before filing the motion with the court. Cameron would also prepare a memorandum of law in support of the motion. When the court heard the motion, Cameron would argue that execution of the waiver barred Baranski from pursuing her claim against Peretto.
Burden of Proof
The burden would then shift to Gilmore to show that the release was invalid or otherwise not binding on Baranski. If the judge believed that Baranski involuntarily signed the release, then the judge would grant the motion. If Gilmore convinced the judge that there was an issue concerning the validity of the release, such as evidence that the release signed by Baranski had been procured by fraud, then the judge would deny the motion for summary judgment and permit the case to go to trial. The validity of the release would then be determined at trial by the fact finder.
Chapter Contents
10-9Chapter Review
10-9aKey Terms and Concepts
· affidavitaffidavitA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation. affidavitA written statement of facts, confirmed by the oath or affirmation of the party making it and sworn before a person having the authority to administer the oath or affirmation.
· affirmative defenseaffirmative defenseA response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. affirmative defenseA response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action.
· allegationallegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove. allegationA party’s statement, claim, or assertion made in a pleading to the court. The allegation sets forth the issue that the party expects to prove.
· answeranswerA defendant’s response to a plaintiff’s complaint. answerA defendant’s response to a plaintiff’s complaint.
· chain of custodychain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial. chain of custodyA series describing the movement and location of evidence from the time it is obtained to the time it is presented in court. The court requires that evidence be preserved in the condition in which it was obtained if it is to be admitted into evidence at trial.
· complaintcomplaintThe pleading made by a plaintiff or a charge made by the state alleging wrongdoing on the part of the defendant. complaintThe pleading made by a plaintiff or a charge made by the state alleging wrongdoing on the part of the defendant.
· counterclaimcounterclaimA claim made by a defendant in a civil lawsuit against the plaintiff; in effect, a counterclaiming defendant is suing the plaintiff. counterclaimA claim made by a defendant in a civil lawsuit against the plaintiff; in effect, a counterclaiming defendant is suing the plaintiff.
· cross-claimcross-claimA claim asserted by a defendant in a civil lawsuit against another defendant or by a plaintiff against another plaintiff. cross-claimA claim asserted by a defendant in a civil lawsuit against another defendant or by a plaintiff against another plaintiff.
· default judgmentdefault judgmentA judgment entered by a clerk or court against a party who has failed to appear in court to answer or defend against a claim that has been brought against him or her by another party. default judgmentA judgment entered by a clerk or court against a party who has failed to appear in court to answer or defend against a claim that has been brought against him or her by another party.
· deponentdeponentA party or witness who testifies under oath during a deposition. deponentA party or witness who testifies under oath during a deposition.
· depositiondepositionA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded. depositionA pretrial question-and-answer proceeding, usually conducted orally, in which a party or witness answers an attorney’s questions. The answers are given under oath, and the session is recorded.
· deposition transcriptdeposition transcriptThe official transcription of the recording taken during a deposition. deposition transcriptThe official transcription of the recording taken during a deposition.
· discoverydiscoveryFormal investigation prior to trial. Opposing parties use various methods, such as interrogatories and depositions, to obtain information from each other and from witnesses to prepare for trial. discoveryFormal investigation prior to trial. Opposing parties use various methods, such as interrogatories and depositions, to obtain information from each other and from witnesses to prepare for trial.
· discovery plandiscovery planA plan formed by the attorneys litigating a lawsuit, on behalf of their clients, that indicates the types of information that will be disclosed by each party to the other prior to trial, the testimony and evidence that each party will or may introduce at trial, and the general schedule for pretrial disclosures and events. discovery planA plan formed by the attorneys litigating a lawsuit, on behalf of their clients, that indicates the types of information that will be disclosed by each party to the other prior to trial, the testimony and evidence that each party will or may introduce at trial, and the general schedule for pretrial disclosures and events.
· docketdocketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court. docketThe list of cases entered on a court’s calendar and thus scheduled to be heard by the court.
· electronic filing (e-filing) systemelectronic filing (e-filing) systemAn online system that enables attorneys to file case documents with courts twenty-four hours a day, seven days a week. electronic filing (e-filing) systemAn online system that enables attorneys to file case documents with courts twenty-four hours a day, seven days a week.
· Federal Rules of Civil Procedure (FRCP)Federal Rules of Civil Procedure (FRCP)The rules controlling all procedural matters in civil trials brought before the federal district courts. Federal Rules of Civil Procedure (FRCP)The rules controlling all procedural matters in civil trials brought before the federal district courts.
· impeachimpeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement. impeachTo call into question the credibility of a witness by challenging the truth or accuracy of his or her trial statement.
· interrogatoriesinterrogatoriesA series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit (the plaintiff or the defendant). interrogatoriesA series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit (the plaintiff or the defendant).
· judgmentjudgmentThe court’s final decision regarding the rights and claims of the parties to a lawsuit. judgmentThe court’s final decision regarding the rights and claims of the parties to a lawsuit.
· memorandum of lawmemorandum of lawA document (known as a brief in some states) that delineates the legal theories, statutes, and cases on which a motion is based. memorandum of lawA document (known as a brief in some states) that delineates the legal theories, statutes, and cases on which a motion is based.
· metadatametadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted. metadataEmbedded electronic data recorded by a computer in association with a particular file, including location, path, creator, date created, date last accessed, hidden notes, earlier versions, passwords, and formatting. Metadata reveal information about how, when, and by whom a document was created, accessed, modified, and transmitted.
· motionmotionA procedural request or application presented by an attorney to the court on behalf of a client. motionA procedural request or application presented by an attorney to the court on behalf of a client.
· motion for summary judgmentmotion for summary judgmentA motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial. A motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery. motion for summary judgmentA motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial. A motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery.
· motion to dismissmotion to dismissA motion filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff’s failure to state a claim for which relief can be granted. motion to dismissA motion filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff’s failure to state a claim for which relief can be granted.
· pleadingspleadingsStatements by the plaintiff and the defendant that detail the facts, charges, and defenses involved in the litigation. pleadingsStatements by the plaintiff and the defendant that detail the facts, charges, and defenses involved in the litigation.
· prayer for reliefprayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff. prayer for reliefA statement at the end of the complaint requesting that the court grant relief to the plaintiff.
· privileged informationprivileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order. privileged informationConfidential communications between certain individuals, such as an attorney and his or her client, that are protected from disclosure except under court order.
· return-of-service formreturn-of-service formA document signed by a process server and submitted to the court to prove that a defendant received a summons. return-of-service formA document signed by a process server and submitted to the court to prove that a defendant received a summons.
· service of processservice of processThe delivery of the summons and the complaint to a defendant. service of processThe delivery of the summons and the complaint to a defendant.
· subpoenasubpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter. subpoenaA document commanding a person to appear at a certain time and place to give testimony concerning a certain matter.
· summonssummonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time. summonsA document served on a defendant in a lawsuit informing the defendant that a legal action has been commenced against him or her and that the defendant must appear in court or respond to the plaintiff’s complaint within a specified period of time.
· supporting affidavitsupporting affidavitAn affidavit accompanying a motion that is filed by an attorney on behalf of his or her client. The sworn statements in the affidavit provide a factual basis for the motion. supporting affidavitAn affidavit accompanying a motion that is filed by an attorney on behalf of his or her client. The sworn statements in the affidavit provide a factual basis for the motion.
witnesswitnessA person who is asked to testify under oath at a trial. witnessA person who is asked to testify under oath at a trial.
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