Chapter 6 Litigation Documents

1. Chapter 6Litigation Documents Summons, Complaint, Answer & Discovery Documents

2. The Summons • Process = • Summons & Complaint • Service of Process • Presenting the summons & complaint to defendant

3. Summons Fulfills due process requirements • Noticing a defendant requires: • 1. original complaint and copy of summons filed with court • 2. summons issued by court • 3. summons & complaint both served on defendant • 4. process server must be over 18 & not a party to action • 5. affidavit of service, called Return of Service, filled out by process server • 6. file Return of Service filed with the court • Service by Publication • Generally, requires court order

4. DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSION JOHN DOE, ) Plaintiff. ) vs. ) SUMMONS ) Phillip Duncan, ) Defendant. ) _____________________ ) NOTICE!! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND WIThIN 20 DAYS. READ THE INFORMATION BELOW. TO THE DEFENDANT(S): A civil complaint has been filed by the Plaintiff against you for the relief set forth in the Complaint. 1. If you intend to defend this lawsuit, within 20 days after this Summons is served on you, exclusive of the day of service, you must do the following: a. File with the Clerk of this Court, whose address is shown below, a formal written response to the Complaint in accordance with the rules of the Court with the appropriate filing fee. b. Serve a copy of your request upon the attorney whose name is shown below. 2. Unless you respond, your default will be entered upon application of the Plaintiff and this Court may enter a judgment against you for the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the Complaint. 3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time. 4. The State of Confusion, its political subdivisions, agencies, officers, employees, board members, commission members and legislators, each have 45 days after service of this Summons within which to file an answer or other responsive pleading to the Complaint. CLERK OF COURT ____________________________ By: _____________________________________ Sue M. Daily Attorney for Plaintiff

5. The Complaint • Five Elements: • 1. Caption • 2. Jurisdiction • 3. Cause of Action • 4. Ad Damnum Clause • 5. Subscription

6. Attorney’s Heading » Court Hearing Matter » Names of Parties » Title of Document Attorney Name FIRM NAME Street Address City, State 00000 Telephone Contact Attorney for Plaintiff/Defendant DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSION JOHN DOE, ) Plaintiff. ) vs. ) SUMMONS ) Phillip Duncan, ) Defendant. ) __________________ ) Caption

7. Types of jxn.: In personam Address of π/Δ In rem Place of controversy Quasi in rem Note: Federal Complaints require (Jurisdictional Statement) 1. Plaintiff is now and at all times relevant has been a resident of El Paso County, Colorado. 2. Defendant is now and at all times has been a resident of Kiowa County, Colorado. 3. The accident in controversy occurred in Denver County, Colorado. 4. The defendant owns property in Denver County, Colorado, which is subject to attachment for damages awarded plaintiff in Green v. Jones … Jurisdiction

8. Claim for Relief Examples: Negligence » Negligence per se Breach of Contract IIED “Defendant had a duty to properly obey traffic laws of the state and county where the accident occurred, and by failing to do so acted in a negligent manner.” Cause of Action

9. = Prayer for Relief = Wherefore Clause Wherefore, Plaintiff prays for judgment against the Defendant as follows: For general damages in excess of $10,000.00 according to proof; For loss of earnings and earning capacity according to proof; For medical expenses, future medical expenses and all incidental expenses according to proof; For interest from the date of accident to the time of judgment; For costs of suit incurred herein; For attorney fees incurred herein, and For such other and further relief as the Court deems proper. Ad Damnum Clause

10. Signature line __________________ Attorney Name State Bar No. 0000 Firm Name Address Attorney for Plaintiffs/Defendants Subscription

11. Numbering Paragraphs Fact Pleading vs. Notice Pleading Notice Pleading = Notice of claims Fact Pleading = Set forth prima facie case in CM Verified Complaints Plaintiff attests to validity General Allegations (Allegations All Defendants) I. Plaintiffs are and at all times have been residents of Clark County, State of XXX. II. Defendants are now and at all times relevant have been residents of Clark County, State of XXX. III. On or about October 23, 3004, Defendant was driving a taxi, in which Plaintiff(s) were passengers. Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.

12. Tort Causes of Action • Tort = Civil Wrong • Intentional Torts: • Defamation, Libel, Slander • Wrongful (False) Imprisonment • Malicious Prosecution/Abuse of Process • Trespass & Nuisance • Assault • Battery • Misrepresentation • Conversion • Intentional Infliction of Emotional Distress • Negligent Torts: • Negligence: Duty, breach, damages • Negligence per se: Violation of law • Wrongful Death

13. Contract Causes of Action • Contract = Agreement between parties • Breach of Contract • Bad Faith • Breach of Fiduciary Duty

14. General Allegations Jurisdictional statements Facts General Allegations (Against All Defendants) I. Plaintiffs are and at all times relevant have been residents of Clark County, State of Confusion II. Defendants are now and at all times relevant have been residents of Clark County, State of Confusion III. On or about October 23, 2004, Defendant was driving a taxi, in which Plaintiff(s) were passengers. Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone. IV. At the intersection of Sahara and Paradise Road, Defendant failed to stop for a red light. V. Defendant’s taxi subsequently struck a vehicle traveling south bound on Paradise Road. The vehicle which was struck possessed the right of way. Establishing Causes of Action

15. The Claim:3-Step Cause of Action • Caption Claim: FIRST CLAIM FOR RELIEF: Negligence • 3-Step Cause of Action: • Incorporation Paragraph • “Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.” • Cause of Action • “Defendant had a duty to properly obey the traffic laws of the state and county where the accident occurred, and by failing to do so acted in a negligent manner.” • Alleges Damages • “As a result Defendant’s negligent conduct stated above, Plaintiff has suffered specific damages, including but not limited to medical expenses and lost wages.”

16. Court Paper • Open line indicators • /// indicates that the last lines on the page have been intentionally left blank • Pleading Paper • Numbered legal paper • Standard: 28 lines • Used for: pleadings, discovery, other court documents

17. The Answer • Answer: • Defendant’s response to Complaint • Answer each paragraph of the complaint • E.g., “Defendant hereby admits allegations contained in paragraphs 1, 4, 5 of Plaintiff’s Complaint.” • Responses: • Admit • Deny • Neither admitted or denied due to lack of knowledge/information

18. Affirmative Defenses & Counterclaims • Affirmative Defenses: • Defendant admits that event occurred, but denies liability • No damages claimed • Counterclaims: • Defendant’s claim for damages against Plaintiff

19. Discovery • Discovery = period to “Discover” facts • Plaintiff serves discovery on defendant • Defendant serves discovery on plaintiff • Purposes of discovery: • To clarify issues • Eliminate surprise • Limit the length of the trial All discovery is conducted under oath

20. Discovery Techniques • Interrogatories • Written questions • Requests for Admissions • Asks opponent to admit certain facts • E.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on November 4, 2004 at 10:00 p.m.” • Requests for Production and Inspection of Documents • Asks other party for documents (medical records, etc.) • Depositions • Oral questions

21. Interrogatories • Interrogatories = written questions • Limited Discovery: • Some states limit the number of interrogatories or provide form interrogatories • Format • Caption • Instructions • Include instruction providing that interrogatories are continuing in nature • Interrogatories (Questions) Discovery is continuing in nature

22. Answers to Interrogatories • Procedure: • Date Stamp Interrogatories • Tickle date due (and prior) • Responding: • Attorney responds • Client responds by him/herself • Client responds with help • Objections: • Interrogatories may be objected to based on relevance, burden, etc. • Extension of Time • Should be requested IN ADVANCE of due date

23. Interrogatory Techniques Use formbooks & templates Technique One: Personal information Technique Two: Financial information Technique Three: Facts

24. Requests for Admissions • Request for admission of facts • Establishes facts for trial • E.g., “Admit that you are the owner of a blue Chevrolet, license no. 897 IUO” • Responding to Requests • Date stamp • Tickle due date • If response is not timely (30 days), the request is deemed admitted!!!!

25. Request for Admissions: Responses • Admitted • Denied • Neither admitted nor denied due to lack of sufficient information with which to respond • Specific reason must be given • Neither admitted nor denied due to vagueness of the request • Omit a response • NOT a good idea • May be deemed admitted

26. Request for Admission Techniques Use formbooks & templates Technique One: Verify or corroborate interrogatories E.g., Admit or that you have been an employee of the U.S. Postal Service for eight (8) years. Technique Two: Gives choices, or degrees of liability Technique Three: Force the party to commit

27. Production of: Documents (medical reports, etc.) Pictures, designs/drawings Contracts Corporate records Discoverable Materials: Materials relevant to litigation that: Do not violate 5th amendment Are not privileged Request for Production: 21. Produce any and all documents that evaluate compliance by the defendant with the terms of the July 16, 2001 contract which is in dispute in this litigation. Requests for Production

28. Non-Discoverable Material • Non-discoverable material: • Attorney work-product • Material produced in anticipation of litigation • Privileged information • Attorney-client privilege: • Applies to paralegal and other staff: • 1. Communication must be private • 2. Must remain private • 3. Must fall within scope of paralegal’s duties • Production of Documents: • Withhold attorney-client documents • Withhold document prepared in anticipation of litigation

29. Responding to Production • Date Stamp Requests • Tickle date due (and prior for preparation) • Producing Documents: • Request documents from client • Review them carefully • For privileged matters, other non-discoverable docs • Review for discrepancies • Motion to Compel • Other party may file a Motion to Compel for force answers/responses if answers are non-responsive, privileged is claimed, etc.

30. Request for Production Inspection • Inspect documents produced • 1. Be thorough • 2. When in doubt, copy Inspecting is like looking for a needle in a haystack, so remember it’s an important job: Your inspection could win or lose the case!

31. Answers to discovery must be verified Verification State of Nowhere ) ) County of Who ) I, _____, being first duly sworn, deposes and says: That I am the Plaintiff in the above-entitled action; that I have read the foregoing ANSWERS TO INTERROGATORIES and know the contents thereof; the same is true of my own knowledge except as to those matters therein stated on information and belief and, as to those matters, I believe them to be true. _______________ Name SUBSCRIBED AND SWORN to before me this ___ day of ______. ____________ NOTARY PUBIC in and for said County and State Verification

32. Depositions • Depositions = oral questions • Setting: • Both attorney’s present • Court reporter transcribes testimony • Deposition testimony is under oath

33. Preparing for the Deposition • 1. Set the deposition • Contact attorneys, witness • Agree on time and place (generally) • Send follow-up letter memorializing agreement • 2. Send Deposition Notice and Subpoena • Subpoena witness to be deposed • 3. Prepare deposition questions • Resources: • Pleadings • Discovery documents • Research sources (Am.Jur. Pleadings and Practice, etc.)

34. Deposition Follow-Up • Transcript Review • Deponent should review transcript • Sign under oath • Deposition Index • Alphabetical index of subjects covered in deposition • Generally a matter of computer software

35. Deposition Summary • Deposition Summary = Digest • Purpose: • Relate relevant material • 2. Don’t alter the context of the material • 3. Avoid editorializing in the summary • Methods: • 1. Topical Summary • 2. Page-by-Page Summary