Pretrial Litigation in a Nutshell
Author:
Dessem, R. Lawrence
Edition:
6th
Copyright Date:
2016
23 chapters
have results for pretrial litigation in a nutshell
Preface and Acknowledgments 4 results
- The West Nutshell Series is to serve as “a succinct exposition of the law to which a student or lawyer can turn for reliable guidance,” and this sixth edition of
- This text can be used as an assigned text in a law school or continuing legal education course in pretrial litigation. The text also should prove a useful supplement in civil procedure courses or clinical courses involving civil pretrial practice. In addition, attorneys embarking on a litigation practice or who do not regularly handle civil lawsuits may find the text useful with respect to pretrial practice.
- As with the earlier editions of this book, the text discusses both the law governing the civil pretrial process and the skills that counsel must employ during pretrial proceedings. The law discussed is that applicable to federal civil proceedings, primarily the Federal Rules of Civil Procedure as most recently amended on December 1, 2015. State counterparts to the Federal Rules of Civil Procedure have been adopted in a majority of jurisdictions, and the pretrial skills considered in the text are essential to lawyers in both state and federal practice.
- I thank those who have supported me in writing this text and in all else: my wife Beth Taylor Dessem and children Matthew, Lindsay, and Emily. Those from whom I learned about pretrial litigation, and about being a lawyer, include Judge William K. Thomas and my friends and former colleagues in both the General Counsel’s Office of the National Education Office and the Federal Programs Branch of the Civil Division of the United States Department of Justice. Finally, I appreciate the ability to use material from D. Binder & S. Price,
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Chapter One. Introduction 21 results (showing 5 best matches)
- Nor can pretrial litigation be divorced from trial. The pretrial phase of a case is crucial in preparing the case for trial, and pretrial decisions will bind the parties and limit counsel’s options at trial. In the great majority of cases that are settled or otherwise resolved short of trial, the pretrial resolution usually is dependent upon counsel’s pretrial litigation skills and decisions.
- Encompassed within the area of pretrial litigation is everything that a lawyer does for a client prior to trial. No single volume can cover this field in great depth. The aim of this book is to discuss the primary law governing the civil pretrial process and the major lawyering skills necessary to represent a client prior to trial. The book should be helpful to law students in pretrial litigation, civil procedure, or clinical courses; to newly admitted attorneys who are embarking upon careers as civil litigators; and to other attorneys who have not regularly or recently handled litigation and may want a quick primer on pretrial law and practice.
- The book progresses in the same chronological fashion as does most civil litigation. The next four chapters deal with client interviewing and the establishment of the attorney-client relationship, pretrial planning and investigation, and the pleadings. Chapters 6 through 10 concern disclosure and discovery. The final chapters of the book address pretrial motions, pretrial conferences and orders, and negotiation and settlement. While most civil litigation progresses in this fashion, this is not always the case. Pretrial investigation can continue throughout the course of the lawsuit, up to, and through, trial. Pretrial motions and conferences can
- Mastery cannot be gained merely from reading this or any other book. Mastery of any subject, whether it be pretrial litigation, musical performance, or throwing a curve ball, only can come from practice and experience. Complete mastery may never be achieved, but is an ideal for which one strives throughout a legal career. Even though reading a book such as this will not lead to mastery of pretrial litigation, it is nevertheless a beginning.
- Whether or not the pretrial process in a particular case proceeds in the same sequence as the chapters in this book, counsel must be aware of the related nature of the various pretrial phases of a case. The manner in which a pleading is drafted can limit later opportunities for discovery, and a thorough pretrial investigation may uncover a witness upon whose affidavit a motion for summary judgment may turn.
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CHAPTER THIRTEEN PRETRIAL CONFERENCES AND PRETRIAL ORDERS 55 results (showing 5 best matches)
- Preparation of a final pretrial order can entail a great amount of work. However, because the final pretrial order will control the trial of the case, the time invested in that order is time well spent. In developing a litigation plan at the outset of the case, counsel should consider the matters that ideally should be included in the final pretrial order. Counsel’s goal should be to structure pretrial proceedings so that she successfully can seek inclusion in the final pretrial order of as many items identified in her litigation plan as possible.
- While attorneys should participate in good faith in the pretrial process, there is a natural reluctance to agree to pretrial orders that will restrict counsel’s later litigation options. If counsel stipulates to facts in the pretrial order, it will be difficult, if not impossible, to challenge those facts at trial. Counsel may need to walk a fine line at some pretrial conferences and be able to differentiate, on the spot, between matters that they cannot in good faith dispute and those proposed stipulations or procedures that will disadvantage their clients and that they can in good faith oppose.
- Rules and statutes other than Rule 16 encourage judicial management of the pretrial process. permits coordinated or consolidated pretrial proceedings in a single federal judicial district of multidistrict litigation involving one or more common questions of fact. Local rules of many courts provide that a single judge is to hear all related civil cases filed in a given district. The
- Because Rule 16 is generally discretionary in nature, judges can tailor pretrial conferences and orders to individual cases. In a complex case, the judge may hold several pretrial conferences and require an extensive pretrial order. In simpler cases, there may be only a Rule 16(b) scheduling order and a final pretrial conference and order.
- After the final pretrial conference, the court enters a final pretrial order. While earlier pretrial orders have governed the ongoing pretrial proceedings, the focus of the final pretrial order is upon the trial of the action. The final pretrial order also is different from prior pretrial orders because Rule 16(e) provides that the court “may modify the order issued after a final pretrial conference only to prevent manifest injustice.”
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Chapter Three. Pretrial Planning and Investigation 97 results (showing 5 best matches)
- Pretrial litigation and, especially, pretrial discovery can be extremely wide-ranging. One of the ways in which pretrial litigation can be focused and issues can be narrowed is by conducting thorough legal research prior to taking positions in the pretrial process. Good legal research can save attorney time and client money, and it can increase the likelihood of litigation success in the pretrial process. If this weren’t enough reason to conduct thorough legal research, provides that the attorney’s signature on a litigation document is a certification that the document is “warranted by existing law or by a nonfrivolous argument for extending,
- Whether dealing with opposing counsel or the court, counsel’s aim should be to obtain an agreement or order adopting the pretrial litigation plan developed for her own client. However, before proposing that opposing counsel or the court adopt your litigation plan, be certain that the deadlines it contains are ones that you, yourself, can meet. The completion of pretrial litigation tasks often takes longer than counsel first anticipates. In setting pretrial deadlines, consider the pretrial activity that you plan to undertake, the probable pretrial initiatives of opposing counsel, and the likely responses to this activity by other parties and the court.
- The litigation plan should anticipate motions and other pretrial positions that opposing counsel is likely to take. The assessment of these litigation moves may require at least preliminary legal research. This legal research can be essential in planning one’s own litigation strategy, and it can permit a much faster and complete response when opposing counsel actually takes the anticipated position during pretrial.
- Attorneys should plan litigation so that they can provide the best possible representation in each of their cases. Different phases of pretrial litigation are linked to one another, and there is a natural progression within the pretrial process. Discovery generally is limited to matters that are relevant to the claims or defenses of parties to the pending action, and the decision to plead a particular claim or defense therefore may determine the ability of the parties to obtain specific discovery. More generally, decisions made early in the pretrial process may restrict later pretrial and trial options.
- Counsel must remain flexible during the pretrial process and remember that pretrial proceedings are merely one aspect of the total litigation process. The litigation plan should be continually updated to reflect ongoing litigation developments. Pretrial litigation activities not only should be consistent with one another but consistent with the litigation strategy counsel intends to employ at trial.
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Chapter Eleven Pretrial Motion Practice 89 results (showing 5 best matches)
- Pretrial motions should not be filed in an ad hoc manner. Instead, counsel should consider the way in which pretrial motions can be used to further her client’s litigation objectives. In devising a pretrial motion strategy, counsel should determine all of the motions that are potentially available in the lawsuit. Not only the motions that are available to her client, but motions that other parties are likely to file, should be considered.
- be filed have been identified, a decision must be made as to the motions that actually be filed. Counsel should develop a motion strategy in which individual motions complement one another. Motion strategy is one aspect of a comprehensive pretrial litigation plan.
- In addition to motions that may result in the pretrial disposition or change of venue of an action, important motions can affect the timing of the pretrial and trial process. If the plaintiff is about to suffer irreparable injury due to the defendant’s alleged actions, a motion for a temporary restraining order or a preliminary injunction can be filed pursuant to Rule 65.
- In developing a motion strategy, counsel should consider the goals that pretrial motions can serve. Among the possible goals of pretrial motions are to (1) obtain a favorable pretrial resolution of an entire action (by, for instance, filing a successful motion to dismiss or for summary judgment); (2) narrow the issues between the parties (by, for instance, filing a successful motion for partial summary judgment); (3) lay the groundwork for an ultimately successful resolution of the action through settlement, during pretrial, or at trial; (4) obtain control of the pretrial proceedings (by using successful motions to put opposing counsel on the defensive); and (5) gain credibility with other counsel and the court (by using successful motions to demonstrate the strength of your case, resources of your client, and your own abilities as an attorney). Before filing any motion, counsel should be clear concerning the purpose or purposes that the motion is to serve.
- Nor should a party’s motion strategy be inconsistent with that party’s overall case strategy. If the plaintiff desires an expedited case resolution, pretrial motions for extension of time should be avoided. Counsel should not lose sight of her ultimate litigation objectives by focusing merely upon the immediate gains that might result from particular motions.
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CHAPTER FOURTEEN NEGOTIATION AND SETTLEMENT 82 results (showing 5 best matches)
- All good things must come to an end, even civil litigation. More often than not, the way in which civil litigation comes to an end is through a negotiated settlement. Such settlements typically are negotiated while the case is still in its pretrial stages. Regardless of whether any particular case settles, civil litigators spend a major part of their time in settlement negotiations.
- Because so many lawsuits settle, counsel should consider the possibility of settlement from the very outset of a case. If counsel believes that a case is likely to settle, her litigation positions and actions may be different than if she believes that there is little chance of settlement short of trial. By settling a lawsuit in its early stages, all parties may be able to achieve a more favorable outcome than if the case proceeds to trial. The further a case proceeds toward trial, the more expensive the litigation becomes. Not only is litigation expensive in terms of monetary costs, but lawsuits often engender both mental and physical turmoil. In addition, a settlement may be tailored to the parties’ individual circumstances, in contrast to an all-or-nothing judicial resolution of the dispute. Pretrial settlement therefore should be considered in all cases.
- The judge is the individual most likely to facilitate settlement. Because many counsel are hesitant to initiate settlement discussions, judges often raise the possibility of settlement. In fact, Rule 16(a)(5) provides that one of the purposes of pretrial conferences is “facilitating settlement.” In some standard final pretrial orders, counsel must certify that they have discussed settlement. If the court has not scheduled a pretrial or settlement conference, counsel might consider requesting such a conference so that settlement can be explored.
- The likely outcome of formal adjudication will be greatly affected by the manner in which counsel conduct the pretrial proceedings. Aggressive pursuit of formal or informal discovery may reveal information that greatly enhances one party’s chances of success at trial. Effective use of pretrial motions may result in judicial rulings that greatly reduce a party’s trial exposure on the claims that remain pending. Counsel should use the pretrial process to strengthen the positions of their clients in
- How does one actually initiate settlement negotiations? Some attorneys are hesitant to raise settlement with opposing counsel for fear that a settlement overture will be seen as a sign of weakness. However, there are very few cases in which it is not in the interest of all parties to consider settlement. In many cases, settlement offers will be expected. Opposing counsel are more likely to conclude that one’s litigation position is weak based upon the conduct of pretrial proceedings than because of the initiation of settlement discussions. Most judges strongly suggest, while other judges and some local rules require, that counsel discuss settlement. This gives counsel an
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Chapter Five. Responses to the Complaint 86 results (showing 5 best matches)
- In addition to a Rule 12(b) motion to dismiss, possible defense motions can be filed pursuant to Rule 12(c), (e), and (f). While these motions play a much less significant role in pretrial litigation than motions to dismiss, defense counsel should be familiar with all of the Rule 12 motions.
- Ruling on a motion to dismiss may be the judge’s first contact with a case, and defense counsel should consider the risk that the judge will deny the motion. Against this possibility should be balanced the likelihood that a successful motion will terminate the litigation short of expensive and time-consuming discovery, pretrial proceedings, and trial. Sometimes a motion to dismiss can be targeted at selected claims within a complaint, rather than seeking the dismissal of the entire action. The motion to dismiss therefore should be carefully researched and considered within the context of defendant’s comprehensive litigation plan.
- concerns not only “redundant, immaterial, impertinent, or scandalous matter,” but provides for the striking of “an insufficient defense.” In some cases a pretrial ruling on the sufficiency of a defense may be important in helping the parties plan pretrial and trial proceedings. In these situations, the motion to strike can be used to challenge a defense in the answer just as a Rule 12(b)(6) motion can be used to challenge a claim asserted in the complaint.
- One of the major advantages of crossclaims is that they permit several related claims to be resolved in a single lawsuit. This may result in not only judicial efficiency, but it may reduce pretrial delay and expense for the parties as well. However, crossclaims are not mandatory under , and counsel should consider carefully both the advantages and disadvantages of these claims in any particular suit. The assertion of crossclaims may delay or confuse the resolution of the original claims and counterclaims, and there may be a more favorable forum in which counsel would prefer to litigate a potential crossclaim.
- In most cases, though, the defendant is interested in the quickest, cheapest termination of the lawsuit. For this reason, the defendant will raise defenses in a preanswer motion to dismiss. If a motion to dismiss is granted, the case is dismissed and this is the end of trial court proceedings. The mere assertion of a defense in the answer does not ensure a pretrial determination of the sufficiency of that defense, although provides: “If a party so moves, any defense listed in —whether made in a pleading or by motion—and a motion under must be heard and decided before trial unless the court orders a deferral until trial.”
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Chapter Twelve Summary Judgment 55 results (showing 5 best matches)
- Potential summary judgment motions should have been considered at the very outset of the case, when the litigation plan was developed. As with other pretrial motions, potential motions for summary judgment should be consistent with, and supportive of, a party’s litigation theory and theme. By making an early decision to seek summary judgment, counsel can structure discovery and other pretrial proceedings to support a
- In addition to affidavits and declarations, discovery responses and disclosures often are offered in connection with motions for summary judgment. An opposing party’s discovery responses, given earlier in the pretrial proceedings, can be more convincing than his self-serving affidavits prepared specifically in connection with a summary judgment motion. For instance, if the plaintiff in a case involving an automobile accident stated at his deposition that he went through a red light, that deposition statement can be powerful evidence in support of a defense motion for summary judgment. Some courts have held that a genuine dispute of material fact cannot be created by an affidavit that conflicts with the affiant’s prior unambiguous deposition testimony.
- Some trial judges are especially receptive to motions for summary judgment. If the alternative to summary judgment is a long and costly trial, the judge may be even more predisposed to seriously consider the entry of summary judgment. Even if the motion is denied, its very filing may give the moving party some measure of control over the pretrial proceedings. Counsel who must respond to a summary judgment motion will have that much less time to file motions of their own. A defendant may be able to convince the court to stay discovery or other pretrial proceedings until a summary judgment motion raising threshold defenses is resolved. Even if the judge finds that there is a genuine dispute of material fact, the decision denying summary judgment may include a favorable interpretation of the governing law.
- There are, though, potential disadvantages to summary judgment motions. Ruling on a major motion for summary judgment may require a significant expenditure of judicial resources, and the judge may not be appreciative of the lawyer and party who required that time be spent on a motion that was not well-taken. Summary judgment motions can cause major pretrial delays. A summary judgment motion may encourage other parties to file cross-motions for summary judgment. Not only will summary judgment motions take time for the attorneys to brief, but the court may not be able to rule on the motions immediately. In some cases counsel may be better off proceeding to trial rather than precipitating the delay usually occasioned by summary judgment motions.
- The Supreme Court in , equated a genuine dispute of material fact with evidence that would preclude the grant of judgment as a matter of law at trial: “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
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Chapter Nine Requests for Production, Examinations, and Admissions 66 results (showing 5 best matches)
- Because of the self-executing nature of admission requests, they can be a powerful discovery tool. Admissions can narrow the scope of pretrial discovery and of the contested issues relevant to a pretrial motion or trial. Admissions obtained at the outset of a case can remove entire issues from the need for further discovery and thereby expedite pretrial proceedings. Admissions can provide the factual predicate for pretrial disposition by way of summary judgment or partial summary judgment. Service of admission requests prior to Rule 16 pretrial conferences may cause a judge to encourage, or counsel to accept, admissions narrowing the issues in a case.
- Interrogatory answers and deposition statements can be introduced against a party at trial or in connection with pretrial motions. However, time clouds our memories, and current statements may be inaccurate characterizations of past conduct. The most effective evidence in many cases may be a party’s statements, beliefs, and actions as memorialized in contemporaneous written documents or electronically stored information. permits a party to request documents or electronically stored information falling within the general scope of Rule 26(b) that are within the “possession, custody, or control” of other parties to the litigation. Because of the special challenges that it may present, the discovery of electronically stored information will be the specific focus of the next section of this chapter. This section will more generally consider
- Counsel may have limited knowledge concerning an opponent’s case at the outset of an action, and it only may be possible to draft meaningful admission requests once other discovery has been completed. Admission requests filed at the completion of other discovery can help to tie up loose ends and frame the issues for trial in the most focused and favorable manner for the requesting party. If an opposing party is less than cooperative in agreeing to pretrial stipulations, proposed stipulations can be cast in the form of admission requests to encourage opposing counsel to give them serious consideration. Some counsel use more than one set of admission requests, serving a general set of requests at the outset of a case and following those initial requests with more detailed requests as additional facts are uncovered during discovery.
- In addition,
- Counsel should consider the form in which electronically stored information would be most useful for litigation purposes. Should the information be produced as printed copies of emails, word processing documents in electronic form, or image or sound files? The possible forms for production of electronically stored information are to be considered in the parties’ discovery plan. However, if no specific form for production is requested, Rule 34(b)(2)(E)(ii) provides that “a party must produce [electronically stored information] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © West, a Thomson business, 1998, 2001 © 2016 LEG, Inc. d/b/a West Academic
- Printed in the United States of America
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Chapter Two. Client Interviewing and the Establishment of the Attorney-Client Relationship 60 results (showing 5 best matches)
- Counsel also should realize that no interview proceeds rigidly from step A, to step B, to step C. Human conversation is not that mechanical. Moreover, it is misleading to speak of a single client interview. In most cases, there are a series of client interviews and conferences throughout the course of a lawsuit. Nevertheless, attempting to structure initial client interviews can help attorneys maximize the benefits of this crucial pretrial litigation activity.
- Everything that counsel does during the pretrial process builds upon her client interviews. Attorneys first learn about actual and potential litigation from their clients, and factual and legal case theories are developed based upon client interviews. Just as importantly, attorneys often decide not to pursue certain legal research or factual leads because of what their clients tell them in client interviews.
- Just as it is important to tell the client at the outset what will happen during the interview, counsel should inform the client at the interview’s conclusion what will happen next. While the client will want an indication as to his chances of prevailing in litigation or obtaining other legal objectives, it may be difficult to make such a prediction without conducting legal research and factual investigation. Even if counsel believes that a litigation assessment is feasible, she should stress that any predictions are tentative and are based upon the facts as related by the client at the interview. Clients should be made aware of the delays and costs inherent in civil litigation, the likely time frame for resolving the particular litigation, and the extent to which the client will have to participate in that litigation through discovery and testimony at trial. If the client’s best interests will not be well served by resort to the legal process, alternative dispute resolution...
- Effective interviewing techniques can be useful even when not dealing with one’s own client. A major task of counsel during the pretrial period is to motivate people to provide information. Some of the same techniques that motivate a client to share information may cause a third-party witness to provide informal discovery or an adverse party to volunteer information during a deposition.
- Agreements by counsel to handle a particular matter for a fixed sum are less common in the litigation context than hourly rate or contingent fee agreements. Fixed fee agreements are most common in relatively simple matters such as uncontested divorces, where the attorney’s time commitment can be predicted with a fair degree of certainty at the outset of the case.
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Outline 31 results (showing 5 best matches)
Chapter Six. Disclosure and the Scope of Civil Discovery 82 results (showing 5 best matches)
- In retaining and working with experts, counsel should keep in mind ’s categorization of experts. If an expert is merely used as a pretrial consultant and will not testify at trial, counsel should be able to preclude discovery concerning that expert. Some experts, such as an emergency room physician whose information was not acquired in anticipation of litigation but who was an actor or observer concerning relevant occurrences, are treated as ordinary witnesses subject to discovery. These experts also do not need to provide a written expert report, although the party offering the expert must disclose pursuant to
- Discovery planning should be a major aspect of the litigation plan that is developed at the very outset of the case. Because discovery can be so expensive and cause major case delays, the client should be consulted concerning the general scope of the discovery plan. Plaintiff’s counsel should develop a preferred discovery plan before filing suit, and defense counsel should have such a plan before the days before a scheduling conference is held or a scheduling order is due under Rule 16(b)). provides that among the matters the parties are to address in their plan are (A) the timing, form, and types of disclosures to be made under
- Rule 26(a) requires parties to disclose to other parties certain relevant, nonprivileged material without awaiting a formal discovery request. Rule 26(a) requires three different types of disclosures: (1) initial disclosures at the very outset of a case; (2) disclosures of expert testimony at a time and in the sequence set by the court; and (3) pretrial disclosures concerning the actual evidence to be presented at trial.
- In gathering information, counsel may have to balance the desire to obtain work-product protections for the information obtained against the need to collect information so that it will be most useful during later pretrial and trial proceedings. For example, if a signed witness statement is taken, the witness will be entitled to a copy of the statement and it eventually may end up in the hands of opposing counsel. However, a statement in the witness’s own words may be necessary to impeach the witness effectively at trial.
- The final required disclosure category is contained in Rule 26(a)(3), which requires pretrial disclosure of the following information that may be presented at trial other than solely for impeachment:
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Chapter Four. The Complaint 89 results (showing 5 best matches)
- Despite the liberal opportunity for amendment under the Federal Rules of Civil Procedure, counsel should plead properly in the first instance so that amendments will not be necessary. In addition, if the action has reached trial and a Rule 16(e) final pretrial order has been entered, the party seeking an amendment must not only satisfy the requirements of but also establish the “manifest injustice” required by Rule 16(e) to modify a final pretrial order.
- Apart from any particular claims or motions that they may file, some potential defendants may more aggressively defend an action and be less likely to settle than other potential defendants. Certain requests, such as for class certification under , may invite procedural skirmishing that will delay the ultimate resolution of the case on the merits. Thus both governing law and pretrial tactics should be considered in determining the claims to assert in the complaint.
- Rule 8(a)(2)
- The most significant litigation cost—attorneys’ fees—are not included within the costs recoverable as a matter of course under . Nor are attorneys’ fees recoverable as a matter of course under the common law “American Rule” on attorneys’ fees that prevails in this country. However, increasing numbers of federal statutes explicitly provide for the award of attorneys’ fees to prevailing plaintiffs. When a statute so provides, attorneys’ fees can be recovered pursuant to the procedures set forth in
- Alternative dispute resolution techniques such as the use of private judges, arbitration, mediation, and negotiation have been employed successfully to resolve many disputes short of litigation. ADR techniques also have been used as an adjunct to formal adjudication to resolve claims that have been filed in the courts. Among the techniques that have been used by the courts are mini-trials and summary jury trials (in which greatly abbreviated case presentations are made to either a judge or jury and the resulting advisory verdict is used as a basis for settlement discussions), court-annexed arbitration and mediation, and court-facilitated settlement.
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Chapter Ten Judicial Intervention Into the Discovery and Disclosure Process 51 results (showing 5 best matches)
- In , the Supreme Court rejected a first amendment challenge to a state court’s protective order prohibiting the defendant newspaper from publishing or disseminating information obtained in discovery. Noting that “pretrial depositions and interrogatories are not public components of a civil trial,” the Court concluded: “Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c).”
- Either a motion for a protective order or a
- Nor is a specific provision in federal rules or statutes necessary for the assessment of discovery sanctions. In , the Supreme Court held that federal district courts possess an inherent power to assess sanctions against attorneys for bad faith obstruction of the discovery process. More recently, in , the Supreme Court affirmed a sanction of almost one million dollars assessed for bad faith litigation conduct outside the discovery process. The majority in stated that “the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.”
- If the court denies a motion to compel, Rule 37(a)(5)(B) provides that the court may enter a protective order precluding or restricting the disclosure or discovery in question. More significantly, Rule 37(a)(5)(A) provides that the court “must” award the reasonable expenses, including attorneys’ fees, incurred in successfully obtaining the motion to compel unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Rule 37(a)(5)(B) similarly provides for the award of expenses to the party or deponent who successfully opposes a motion to compel. In either event, the judge has a great deal of discretion in deciding whether to award the expenses incurred in connection with a Rule 37(a) motion to compel or a Rule 26(c) motion for a protective order. In addition,...
- A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense * * * .
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Chapter Eight Depositions 99 results (showing 5 best matches)
- A deposition outline, and subsequent deposition questioning, can be arranged logically by topic or, in some cases, chronologically. By structuring the deposition in such a fashion, counsel is less likely to forget to ask about an important matter. In addition, structured deposition questioning should produce a deposition transcript that will be easier to use in connection with a pretrial motion or at trial. The major disadvantage of questioning in a structured fashion is that it may be obvious to the witness and opposing counsel exactly where the deposition is heading. If a spontaneous answer is desired to a particularly important question, counsel might ask that question out of sequence at a time when it won’t be anticipated by other counsel and the witness.
- Both your own client and your non-party witnesses should be prepared concerning deposition procedure and likely deposition questioning. A good starting point for any deposition preparation session is an explanation of exactly what a deposition is. Witnesses should understand that there will be no judge present at the deposition and that counsel’s role in defending the deposition is likely to be quite limited. While deposition procedures are more relaxed than those at trial, witnesses should appreciate that their sworn deposition testimony may be vitally important in the ultimate case resolution. However, witnesses also should realize that a discovery deposition is usually not the forum in which to offer affirmative evidence. Instead, the witness should merely answer the questions of other counsel, realizing that there should be an opportunity to develop the witness’s testimony fully in a later pretrial or trial proceeding.
- Examining counsel is not the only attorney who must prepare for a deposition. While defending a deposition is covered in the next section of this chapter, the most important work in defending any deposition is conducted outside the deposition room. The preparation of the deponent prior to the deposition is generally much more important than anything done by counsel during the deposition. Deposition testimony often limits the later testimony that a witness credibly can offer, and many cases are settled or otherwise resolved during the pretrial process based upon the deposition performance of a party or other important witness. Careful preparation of deposition witnesses therefore is essential.
- In order to create a deposition transcript that can be used most effectively for trial cross-examination or with pretrial motions, counsel should “close-up” each segment of the deposition by summarizing testimony that otherwise might be scattered over several pages of the deposition transcript. For example, counsel might ask: “So the only two times that you saw the plaintiff were on August 25, 2014, and December 2, 2015?”
- Even the manner in which a deponent dresses or walks can be important in some cases. If the defendant truck driver in a tort action appears at the deposition wearing a shirt with the nickname “Speedy,” a favorable plaintiff’s settlement may not be far in the offing. Similarly, defense counsel will be pleasantly surprised if the plaintiff who has claimed serious injuries in a personal injury action runs into the deposition room and exclaims, “Sorry I’m late, but my karate class ran over.”
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Chapter Seven. Interrogatories 65 results (showing 5 best matches)
- The permissible number or types of interrogatories often are the subject of a discovery plan or a Rule 16(b) pretrial order. Regardless of governing local rules, ABA Model Rule of Professional Conduct 3.4(d) prohibits frivolous discovery requests. Counsel also should consider if interrogatories are the most practical means of obtaining the information desired.
- Rule 33(a)(2)
- Interrogatory definitions and instructions may help reduce ambiguity and redundancy. Important terms in the litigation can be defined in a preface to the interrogatories in order to reduce potential ambiguity and avoid unnecessary disputes. In addition to terms that are specifically relevant to a particular case, words such as “document,” “communication,” “identify,” and “parties” can be defined at the outset of the interrogatories. Counsel may want to explicitly use the definition of the phrase “documents or electronically stored information” contained in
- Form interrogatories can provide a helpful checklist of important areas to probe in particular types of cases and suggest possible formats for certain questions. To be effective, though, interrogatories must be tailored to the facts of a specific case. Form interrogatories only should be used as a starting point for drafting one’s own interrogatories. In order to target interrogatories effectively in a particular case, counsel must have conducted at least preliminary factual and legal research and devised an appropriate role for her interrogatories within a comprehensive litigation plan. Counsel, rather than a paralegal or someone without full knowledge of the case, ultimately should approve all interrogatories.
- Form 11 of the former Appendix of Forms to the Federal Rules of Civil Procedure is an illustrative complaint in a negligence action stemming from an automobile accident. What follows is a short set of interrogatories that might be filed by the defendant in an action based upon the modified version of Form 11 set forth in Chapter 4.
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Index 23 results (showing 5 best matches)
Table of Rules 30 results (showing 5 best matches)
Editorial Board 3 results
- Publication Date: October 14th, 2016
- ISBN: 9781634604925
- Subject: Trial Practice
- Series: Nutshells
- Type: Overviews
- Description: The sixth edition of Pretrial Litigation in a Nutshell addresses both the law governing pretrial litigation and the legal skills required for successful practice in this area. The text is fully updated to incorporate the 2015 amendments to the Federal Rule of Civil Procedure, the Federal Courts Jurisdiction and Venue Clarification Act of 2011, and other recent statutes and judicial decisions. Although the text’s focus is on federal statutes and rules, the pretrial litigation skills discussed are essential to successful pretrial litigation in both state and federal courts. The text coverage proceeds in the same order as does most pretrial litigation, starting with client interviewing and the establishment of the attorney-client relationship, then considering pretrial planning and investigation, the complaint and responses to the complaint, disclosure and discovery, pretrial motion practice (including summary judgment motions), pretrial conferences and orders, and settlement.
