Civil Lit 2 Midterm
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. What would you like to do?
What do you need to establish that a witness is an expert?
- Establish their:
When can you use leading questions?
During cross examination
What type of questions do you use during direct examination?
Open ended questions
What are the 5 types of Discovery?
- Request for Production
- Request for Admission
What are the types Production (in Request for Production)?
- Documents (eDiscovery)
- Tangible things
- Entry to Land
What is the only type of Discovery that can be used for Parites and Non-Parties?
What do you need in order to have a witness bring along documents?
Supena Ducus Takum
* If you don't bring them along or respond it is an automatic stipulation
How many days do you have to give for a request for admission?
30 calendar days
What is the initial pleading filed in a case?
Complaint which is accompanied by a Summons (which is like an instruction sheet)
What is the process of filing a summons and complaint?
Complete the forms and bring them to the Clerk of Courts:
- File - the summons and complaint
- Serve - an authenticated copy to the defendant via a process server or sheriff
- File - Proof of service with the court
When a lawsuit is filed, how many days do you have to serve the defendant? Can this be extended by the judge?
90 days, and there are no extensions
What are the 3 requirements of a motion?
- 1. It must be made in writing unless it is during a court proceeding.
- 2. The motion must state the grounds of the motion with particularity.
- 3. The motion must clearly state the relief sought
Can we send a Notice of Motion to Compel at the same time as
What is the response to a pleading?
What are the 5 parts to a complaint?
- Introductory statement
- Prayer for relief
- Signature block/date
What is a plaintiff's response to a counter claim?
If there is a person missing from a complain that has an interest in the lawsuit?
3rd party complaint
Response to a 3rd party complaint
3rd party answer
Suing someone on the same side is called -
What is the reply to a cross claim called?
Answer to a cross claim
What does every pleading have?
Cause of Action
What is a summons and the specifics of a summons?
The summons informs that an answer is required.
You have 20 days to reply to a summons unless the action is involving the state, insurance, or is a tort.
If you don't answer a summons, it results in a default judgment.
Do you put the dollar amount in the wherefore clause of a complaint for a contract?
Yes you can
Do you put the dollar amount in the wherefore clause of a complaint for a tort?
No you do not.
What is a Motion for Protective Order?
If granted, then you do not have disclose trade secrets, and certain information.
Use when asking for private information - never give because privileged.
What is a Motion to Compel?
Follow up with a motion for sanction because they did not produce the information (or whatever they were compelled to be doing).
What does Dispositive mean?
Dispositive ends a lawsuit
What is non-dispositive?
Non-dispositive does NOT end a lawsuit
List of motions that end a lawsuit (dispositive):
List of motions that do NOT end a lawsuit (non-dispositive):
Notes on Discovery
Interrogatories are easy
- Deposition - can be oral or written questions
- Depositions are the only discovery option that can be done on party and no-party. But they are expensive as they require a court reporter, two lawyers, a videographer and perhaps a paralegal
- Request for production - produce information
- Request for admission - admit or deny statements, evidence
What are the 7 functions of discovery?
What is Motion JOV?
What is Jurisdiction?
The power - never waive jurisdiction
What is venue?
The geographic location where the court trial takes place
What are the types of Jurisdiction?
- Subject matter
- In Rem
- Quasi in Rem
What is a sworn Statement of Fact?
What document may be included to support an affidavit?
How many days notice must be given with a motion?
A Notice of Motion may accompany a Motion and must be served at lease 5 days before trial.
Wis. Stat. 801.15(4)
How do you calculate the days?
If 11 days or more, use calendar days
If less than 11 days use business days only.
Add 3 days if mailed, add 1 day if faxed after 5pm.
Information about Summary Judgment -
- No genuine issue of material fact only question of law
- PLEADINGS, DISCOVERY ARE PRESENTED, SO FACTS BEYOND PLEADINGS
Judgment on the Pleadings
- No genuine issue of material fact only question of law
- ONLY FACTS PRESENTED IN PLEADINGS
In Summary Judgment and Judgment on the Pleadings - benefit of the doubt goes to the NON-Moving party because you are taking away the right to their day in court.
What is a Motion in Limine?
(Limine - Limit)
Used pre-trial to limit what the jury will hear
What happens when you present a motion to the court?
The judge will issue an order (decision).
What are the phases of a lawsuit?
- 1. Pre-suit
- 2. File the lawsuit
What happens in the pre-suit phase
There is a legal standard that you make a reasonable inquiry this can include:
- reviewing the police report
- reviewing the driving record
- review the weather condition
- review the witness statements (statement sworn to by the party)
What happens during the "file the lawsuit" phase?
- File - the summons and complaint
- Serve - the authenticated copy or publish if necessary
- File - the proof of service
You have 90 days to serve, no exceptions, no enlargement
What is a summons?
It is a list of instructions, not a pleading
How long does the defendant have to issue an answer to a summons and complaint?
20 days, unless it is a lawsuit involving a tort, the state, the insurance company then it is 45 days
What is a schedule conference?
A schedule order is issued with a general timeline for the lawsuit
Alternative Dispute Resolution
- Cost less money
- It is private, not on public record
- Faster and more efficient
- Less adversarial
- Judges can rule that you must do ADR
- Creates a higher rate of settlement versus trial
Wis stat 802.12
Notes about arbitration:
The arbitrator can "rule"
Arbitrator is a neutral third party
The arbitrator can issue and award and it can be permanent - it depends on what the parties agree to in the beginning
Notes about mediation
Mediator does not rule or make decisions
Mediator is there to facilitate communication
The mediator is a neutral third party
Notes about Summary Jury Trial
Gives advisory opinion
Like a "fake" trial
Has a jury
Tool used to advise and give an idea as to the outcome
This is used especially if the plaintiff and defendant are far apart in damages.
Expensive form of ADR
Notes on Mini trial presentation
Settlement authority is present
Attorneys present the best case in front of people who of authority to make decision to try to encourage to settle
Attorneys will sit in and hear and will give opinion as to what key issues are and advise what settlement to agree to
What is a Settlement
Monetary Damages that are sought
- Things to consider:
- What is the defendants ability to pay
- Is there insurance coverage available
- Ease with which liability and damages can be proven
- Nature of the injury, disability, horror factor, damage permanent or not, sympathy for plaintiff
** Can separate damages from liability **
Items used to promote settlement
- 1. Demand letter
- 2. Settlement brochure
- 3. Day in the life video (for life changing injury)
- 4. Offer of settlement
Wis stat 807.01 - pay attention to the penalty for refusing to settle
What is a Structured Settlement
Settlement that is paid over time (personal injury) large awards to cover expenses over a lifetime
can purchase annuities to fund and distribute monthly/quarterly/annually
What is a lump sum settlement
Lump sum settlement is getting all of your settlement award at one time. Often in the case of an insurance company.
Notes on Settlement offers
When settlement offer is sent - the answer is due at lease 20 days before trial - (counted by calendar days)
If the defendant makes the plaintiff a written offer of settlement
If plaintiff accepts within 10 days of receipt - so that there can be proper notice to enter judgment.
If plaintiff does not accept within 10 days, the offer of settlement and all details can not be discussed in trial.
If plaintiff refuses offer then plaintiff gets no costs paid and the defendant is entitled to costs.
If the defendant makes the plaintiff a written offer, and the defendant fails at defense, offers a specified sum of damages
If plaintiff accepts within 10 days, and the plaintiff prevails, proper notice given then the damages will be assessed based on the offer of settlement.
If plaintiff doesn't accept, you cant talk about the offer in the trial.
If plaintiff doesn't accept and plaintiff's damages awarded are not greater than the settlement offer, then neither party may recover costs.
Wis stat 807.01(2)
Settlement offer must be issued at least 20 days before trial
Plaintiff makes defendant a written offer of settlement
If defendant accepts within 10 days notice giving judge the proper written notice.
If defendant doesn't accept, can't talk about offer or its terms
- If defendant doesn't accept and plaintiff damages are greater than the settlement offer plaintiff can recover 2 x the damages.
Wi Stat - 807.01(3)
Settlement offer -
Offer of settlement by party which is not accepted
The party recovers a judgment that is greater than or equal to the amount of the offer of settlement then the party is entitled to interest at an annual rate of PRIME plus 1% calculated on 1/1 and 7/1
wi stat 807.01(4)
Used to release one or more but not all joint tortfeasors
it reserves the right to pursue non-settling parties.
A release extinguishes the suit - the perringer release will extinguish it with just one of the defendants.
The Perringer is defendant friendly.
Partial Settlement requires special care
see paper notes - too difficult to write
What is a release?
it discharges liability/extinguishes the cause of action
Covenant not to Sue
Contractual promise not to sue
Contract between the plaintiff and the defendant who is settling.
It is not a release or discharge
The non-settling defendant's have the right of contribution against the settling defendant.
** There is a right of contribution against the settling defendant (which doesn't extinguish the cause of action)
Dismiss with prejudice
Can no longer be brought back to court
Dismiss without prejudice
Can still be brought back to court
See paper notes - to difficult to write
Written agreement, signed by all parties involved and which is binding. It removes the need to prove the matter at trial.
Example - facts, authenticity of an exhibit
Steps into the shoes of the insured to pursue a claim.
A summary of the deposition that is typically 1/10 of the length.
Uses complete sentences
Don't use the words plaintiff and defendant only - especially if there are multiple parties.
Summarization of the deposition in the order it appears in the deposition
Organizes your summary based on topic or subject matter
a story format - this is often times used to update the insurance company.
Medical Records - SOAP
Subjective - what the patient says (patient says her throat hurts)
Objective - what the physician observes (the throat looks red)
Assessment - tests conducted to develop a diagnosis (throat culture)
Plan - diagnosis and treatment (strep throat and prescription of oral antibiotics)
Direct evidence -
Personal knowledge or observation
Doesn't rely on inference
Example - I saw the defendant throw the baby
Suggest the existence of occurrence or thing. Must add facts together or draw a conclusion. Requires inference.
Example - abandoned car, no banking, apartment untouched, for 7 years - the inference that the person is dead is acceptable - but it is circumstantial evidence.
- From a witness
- Either spoken or signed witness statement (deposition)
Supplied by a writing or other document
Example - contracts, letters, medical records, emails, employment records
a knife wound
that itself plays a direct part in the incident in question
the light fixture in a product liability case about the light fixture
An illustration or representation of a real thing
Example - diagram or picture of a scar, a model or a map
Inferences allowed by law
Allows the court to accept the truth of certain facts because the facts are common knowledge or irrefutable source
Don't have to subpoena the medical records clerk - we can assume that medical records are highly accurate.
To be admissible the evidence must be relevant - but just because it is relevant, doesn't mean it is admissible
Wi Stat 904.01
3 R's of Evidence
Must be Real, Reliable and Relevant
Evidence tends to prove or disprove a fact of important consequence to the lawsuit
Exclusion of relevant evidence -
As provided by the US Constitution, WI Constitution, WI Statues, Rules of Civil Procedure
WI Stat 904.02
Relevant evidence may be inadmissible because:
- Causes Confusion
- Misleads jury
- Results in delay
- Waste of time
- Unfair Prejudice
- Needless presentation of cumulative evidence
WI Stat 904.03
Use a Motion of Limine to ask court not to allow this type of evidence
Is generally not admissible as proof that a person's conduct conformed to that trait
WI Stat 904.04 -
So you can't say that the defendant has a gambling problem so he must have been at the casino
If the trait is an element of the claim then you can use the character reference (reference that the defendant is a liar in a fraud case?)
Evidence of Habit/Routine
Generally admissible - if it is a standard business practice -
Admission to show you acted in accordance with your routine
WI Stat 904.06
What is the Public Policy Exception?
Exclude these items of evidence because of public policy consideration
- 1. Offers of compromise (settlement) (WI Stat 904.08)
- 2. Subsequent Remedial Measures (if you fix the handrail that hurt the defendant so that others will not get hurt)(WI Stat 904.07)
- 3. Liability Insurance (Cant know how much or the terms or else you are likely to have someone determine the limits based on them) (WI Stat 904.XX)
What is the result of failing to respond to a request for admission?
The information is deemed to be admitted and you do not have to prove these items in court.
What is redacting?
The blackening out of privileged information
What are the reasons relevant information is inadmissible?
1. Priviledge (905)
2. Prejudical, Confusion of Issues, Misleading to the Jury, Undue delay, Waste of time, Needless Presentation of Cummulative Evidence (904.03)
- 3. Objection based on rules of evidence or constitution principles
- Lack of Foundation
What evidence is Admissible, What evidence is Inadmissible?
If sustained, then the judge agrees with you.
If over-ruled, then the judge disagrees with you.
Reserve the ruling - the judge must gather more information before ruling.
Object while you can because you can't complain later.
The grounds for objection:
- leading question
- Argumentative question
- Improper character testimony
- Outside the scope of the Mock Trial
- Asked and Answered
- Lack of foundation
- Trade Secret
- Work Product (Qualified and Absolute)
NO Parent/Child Privilege in Wisconsin
WI Stat 905
Generally not admissible
- 1. Declarant is immaterial
- 2. Declarant must be unavailable
- (WI Stat 908.04 - 908.045)
WI Stat 908.03
Statement made by an "out of court declarant" which is being introduced in court by someone other than the declarant to prove the truth of the matter asserted
What makes Hearsay less reliable?
Out of court declarant is not there and cant assess credibility
No ability to cross examine
Not made under oath
(If deposed it is sworn under oath)
What would you like to do?
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