Civil Lit 2 Midterm

• Establish their:
• *Education
• *Experience
• *Training

During cross examination

Open ended questions

• Deposition
• Interrogatories
• IME
• Request for Production
• Request for Admission

• Documents (eDiscovery)
• Tangible things
• Entry to Land

Deposition

Supena Ducus Takum

* If you don't bring them along or respond it is an automatic stipulation

30 calendar days

Complaint which is accompanied by a Summons (which is like an instruction sheet)

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

90 days, and there are no extensions

• 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

???????????????

Answer

• Caption
• Introductory statement
• Body
• Prayer for relief
• Signature block/date

Response

3rd party complaint

3rd party answer

Cross claim

Answer to a cross claim

Cause of Action

Defense

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.

Yes you can

No you do not.

If granted, then you do not have disclose trade secrets, and certain information.

Use when asking for private information - never give because privileged.

XXXXXXXXXXXXXXXXX

Follow up with a motion for sanction because they did not produce the information (or whatever they were compelled to be doing).

Dispositive ends a lawsuit

Non-dispositive does NOT end a lawsuit

XXXXXXXXXXXXXXXXX

XXXXXXXXXXX

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

• Narrow
• A
• R
• R
• P
• A

XXXXXXXXXXXXXX

XXXXXXXXXXXXXXX

The power - never waive jurisdiction

XXXXXXX

The geographic location where the court trial takes place

• Subject matter
• Person
• Property
•      In Rem
•      Quasi in Rem

Affidavit

A Brief

A Notice of Motion may accompany a Motion and must be served at lease 5 days before trial.

Wis. Stat. 801.15(4)

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.

• Dispositive
• No genuine issue of material fact only question of law
• PLEADINGS, DISCOVERY ARE PRESENTED, SO FACTS BEYOND PLEADINGS

• Dispositive
• No genuine issue of material fact only question of law
• ONLY FACTS PRESENTED IN PLEADINGS

(Limine - Limit)

Used pre-trial to limit what the jury will hear

The judge will issue an order (decision).

• 1. Pre-suit
• 2. File the lawsuit

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)

• 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

It is a list of instructions, not a pleading

20 days, unless it is a lawsuit involving a tort, the state, the insurance company then it is 45 days

A schedule order is issued with a general timeline for the lawsuit

Why? 

• 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

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

Mediator does not rule or make decisions

Mediator is there to facilitate communication

The mediator is a neutral third party

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

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

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 **

• 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

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

Lump sum settlement is getting all of your settlement award at one time.  Often in the case of an insurance company.

When settlement offer is sent - the answer is due at lease 20 days before trial - (counted by calendar days)

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 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)

XXXXXXXXXXXXXXXX

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.
• XXXXXXXXXXXXXXXXXXX

Wi Stat - 807.01(3)

Offer of settlement by party which is not accepted

and

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.

see paper notes - too difficult to write

it discharges liability/extinguishes the cause of action

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)

Can no longer be brought back to court

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

No Abbreviations

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.

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)

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

Must be Real, Reliable and Relevant

Evidence tends to prove or disprove a fact of important consequence to the lawsuit

As provided by the US Constitution, WI Constitution, WI Statues, Rules of Civil Procedure

WI Stat 904.02

• 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?)

Generally admissible - if it is a standard business practice -

Admission to show you acted in accordance with your routine

WI Stat 904.06

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)

The information is deemed to be admitted and you do not have to prove these items in court.

The blackening out of privileged information

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
•   Hearsay
•   Lack of Foundation

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.

• Irrelevant
• leading question
• Hearsay
• Opinion
• Speculation
• Badgering
• Argumentative question
• Testifying/Narration
• Improper character testimony
• Outside the scope of the Mock Trial
• Narrative
• Asked and Answered
• Non-responsive
• Lack of foundation

• Attorney/Client
• Clergy/Parishioner
• Interpreter
• Trade Secret
• Work Product (Qualified and Absolute)
• Husband/Wife
• Doctor/Patient

NO Parent/Child Privilege in Wisconsin

WI Stat 905

Generally not admissible

• Exception:
• 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

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)