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WHERE WE ARE

WHERE WE ARE. Pleadings. Complaint. Answer 12(b) Motions. Amended Pleadings. Pre-Trial. Trial & Post-Trial. Appeal. PLEADING The Complaint. Complaint. Task 1: The Law Elements? Explicit v. Implicit. Task 2: The Facts Include? How specific?. Task 3: The Format

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WHERE WE ARE

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  1. WHERE WE ARE • Pleadings Complaint Answer 12(b) Motions Amended Pleadings • Pre-Trial • Trial & Post-Trial • Appeal

  2. PLEADINGThe Complaint Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Rule 8(a)(2), (c) Element v. Aff. Def Burdens of Pleading Rule 9: Special Pldg Req’ts?

  3. BURDENS OF PROOFPlding, Production & Persuasion The Litigation Burdens Burden of Pleading Burden of Production Burden of Persuasion

  4. Adversary System Party driven Parties initiate action Neutral decisionmaker What if decisionmaker can’t decide? Pleading Summary judgment Trial BURDENSAnd the Adversary System

  5. Mari & Erin’s Accident Mari’s Complaint Driving on 15th, 11/22 Accident w/ Erin $20k damages hurt back BURDENS & ELEMENTS The Tort Claim • Negligence • Duty • Breach • Causation • Damages

  6. BURDENS & ELEMENTS • What happens if • Mari doesn’t satisfy burden of pleading? • How do we decide • what’s part of Mari’s claim? • what’s Erin’s affirmative defense?

  7. ALLOCATING ELEMENTSStatutory Claims • Persons shall be liable for • injuries to others • caused by • failure to take reasonable care: • provided that • no person shall be liable • if the plaintiff’s own negligence was the primary cause of the injury

  8. ALLOCATING ELEMENTSStatutory Claims • A person who is • not himself negligent • but • who is injured by the negligence of another • has a cause of action • against the injurer

  9. ALLOCATING ELEMENTSStatutory Claims • Who has burden? • pleading contributory negligence • Why?

  10. ALLOCATING ELEMENTSStatutory Claims • Protocols • Plain meaning • Language • Structure • Legislative intent • Precedent, purpose, policy

  11. ALLOCATING ELEMENTSCommon Law Claims • Gomez v. Toledo, p. 446 • What aspect of claim is court allocating? • What criterion does court use? • Effect of later case law? • Limiting plaintiff to objective proof • Neutral process?

  12. ALLOCATING ELEMENTSExamples • p. 452, Note 6 • Adams, a lawyer, sues Davis, his cousin for professional services. • Who alleges gift (or not)?

  13. ALLOCATING ELEMENTSExamples • p. 452, Note 6 • Bellows, a disk jocky, sue WFCP for failure to pay overtime under FLSA. • Who alleges professional Ee (or not)?

  14. TAKEAWAYS • Three separate burdens • Pleading • complaint • answer • Production • Motion for summary judgment • Plaintiff’s case-in-chief at trial • Defendant’s case-in-chief • Proof • Where do things stand at the end of trial

  15. TAKEAWAYS • Allocating elements to Pl or Def • Policy • Access to information, proof • Who should win in close cases • Do we like this type of claim?

  16. PLEADINGThe Complaint Complaint Task 1: The Law Elements? Explicit v. Implicit Task 2: The Facts Include? How specific? Task 3: The Format Details, details, details Rule 11: How much research? Rule 11: How much Investigation? Element v. Aff. Def Burdens of Pleading Rule 9: Special Pldg Req’ts?

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