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NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By- Step

NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By- Step Presented by the Omaha Bar Association Young Lawyers Division. Presenters : Vicky Buter , Kutak Rock Matt Reilly, Erickson Sederstrom Ken Wentz III, Jackson Lewis Joshua Yambor , Woodke & Gibbons.

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NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By- Step

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  1. NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Presented by the Omaha Bar Association Young Lawyers Division Presenters: Vicky Buter, Kutak Rock Matt Reilly, Erickson Sederstrom Ken Wentz III, Jackson Lewis Joshua Yambor, Woodke & Gibbons Introduction/Conclusion: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock Judicial Perspective: Hon. Patricia Lamberty

  2. NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Introduction: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock

  3. OUTLINE • You've Filed Suit, Now What?:  Completing Service, Responding to Pleadings, and Doing Discovery • The Liability Octagon:  Pinpointing the Dispute and Determining Liability • Sticker Shock:  Proving Damages, Calculating Lost Income, and Supporting Expenses • Take Me to the Other Side:  Identifying Opposing Strategy, Finding Weaknesses, and Anticipating Defenses • If You Can Talk the Talk, Then Walk the Walk:  Preparing for Trial • Show & Tell:  Using Physical, Demonstrative, and Documentary Evidence • Whoops!  Did I Do That?:  Discussing Litigation Mistakes and Cleaning Up the Mess • The War is Over:  Finishing Up After Trial • Things That Make You Go Hmmmmmm: Answering Questions Takeaways Conclusion/Thank You

  4. You’ve Filed Suit, Now What?

  5. Pre-Complaint • Do not file suit too fast. • Determine whether a viable claim exists or what has to be done to make it viable. • Determine who are the proper parties to the action. • Determine “where” the action must be brought. • Anything you have to do before filing claims (i.e. exhaustion of administrative remedies)?

  6. The Complaint & Service • Utilize the applicable jury instructions to plead elements. • Detailed allegations – use as RFA’s. • Verify? • Client review • Do not cut and paste

  7. The Complaint & Service • Proofread • Research – legal and otherwise • Include praecipe • Summons • Service • Litigation hold • First appearance fee

  8. Responding to PleadingsYou’ve been served – now what? Victoria H. Buter Kutak Rock LLP Vicki.Buter@KutakRock.com

  9. Responding to PleadingsYou’ve been served – now what? • Calendar response deadline • Issue litigation hold • Removal • Can you remove? • Do you want to remove?

  10. You’ve been served – now what? • Arbitration • Can you compel Arbitration? • Do you want to? • Motion to Dismiss • Is there a valid Motion to Dismiss? • Personal Jurisdiction • Failure to State a Claim • Should a Motion to Dismiss be filed? • Points to consider • Answer

  11. Initial Discovery • What Discovery should I serve? • Requests for Documents? • Interrogatories? • Requests for Admissions? • Timing of Discovery • Depositions

  12. Sticker Shock:  Proving Damages, Calculating Lost Income, and Supporting Expenses Joshua Yambor

  13. Sticker Shock:  Proving Damages, Calculating Lost Income, and Supporting Expenses • Proving Damages • Medical expenses • Jury Instructions & Rules of Evidence • Fair, Reasonable and Necessary • What/Who do I need to prove • Stipulations? • Iowa v. Nebraska • Lost Income • Past/Future • Loss of Earning Capacity – Experts • What/Who do I need to prove • Get your documents: Tax returns, W-9s, employment records

  14. The Liability Octagon: Pinpointing the Dispute and Determining Liability Matthew B. Reilly Erickson | sederstrom

  15. E|S What Is the Claim? • Plaintiffs: Listen to your client • They don’t know what legal claim they have. • Defendants: Read the Complaint and talk to your client • Has the Plaintiff alleged sufficient facts to satisfy each element of the claim? • What facts are going to be in dispute?

  16. E|S What are my defenses or potential counterclaims? • Affirmative Defenses: • In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (Neb. Ct. R. Pldg. § 6-1108) • Also includes immunity and other common law defenses. • In an insurance defense case, be mindful of the scope of your retention when contemplating a counterclaim.

  17. E|S How do the defenses affect the case? • Some defenses are completely exculpatory and on the pleadings • Immunities • Statute of limitations • Contractual releases • Value of the case: 0 • Some only create fact questions or require proof • Contributory negligence • Assumption of risk • Contractual defenses • Value of the case: proportional

  18. E|S Third Party Liability • Is the named defendant liable? • Are there any other potentially liable parties? • Under what theory? • Be mindful of the statute of limitations.

  19. E|S What are the claimed damages? • Economic vs. non-economic • What figures, if anything, are specially pleaded? • No contest of liability • Offer to Confess Judgment • Personal injury • Soft tissue (subjective) or objective complaints? • Does the law support the prayer for relief? • Be aware of development in case law

  20. E|S Know your surroundings • Who is your judge? • How does he or she operate? • What forum are you in? • What would your prospective jury pool look like? • Who is opposing counsel?

  21. Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses Victoria H. Buter Kutak Rock LLP Vicki.Buter@KutakRock.com

  22. Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses • Don’t underestimate your opponent • Identify elements of proof for claims and defenses • Be creative

  23. Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses • Use the resources readily available to you • Talk to your client (and listen) • Talk to potential witnesses (where appropriate) • Review documents and testimony from your opponent’s perspective • Look at documents in isolation • Look at publicly available documents regarding your client, the opposing party and subject of the case

  24. Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses • Don’t replace fact with fantasy • Question your own case • Don’t believe everything your client tells you • Look for gaps in what your client is telling you

  25. If you can Talk the Talk, then Walk the Walk Preparing for trial Matthew b. reilly Erickson | sederstrom

  26. E|S Create a Theme and Pinpoint your Theory • Start early! • Keep things clear and concise • This is your ultimate message to the court or jury • Be flexible • Need to adapt to unforeseen developments

  27. E|S Elements of your Claim or Defense • Forget about winning or losing for a moment • What do I need to do to get my claim to the jury? • What do I need to do to take a claim away from the jury? • Go for the win - write your closing • If I can say this to the jury, I will win. • What evidence is necessary to be able to say what I need to say to win? • What testimony is necessary?

  28. E|S Evidence Prep • Identify what you need to get into evidence to win the case. • Be sure to cover each and every claim or defense • Identify how you’re going to get that into evidence. • What is needed for authentication, foundation. • Hearsay concerns?

  29. E|S Witness Prep • Review depositions • Also review all written or recorded statements and any other accounts • Testifying and non-testifying witnesses • Review reports • Factual and expert • Confirm witness availability • In-person meetings with important witnesses

  30. E|S Briefs and Arguments • What does the court prefer? • How complex is the case? • Outline at a minimum • What are the issues? • What law applies? • Nebraska Civil Jury Instructions

  31. E|S Setting the Tone • Voir Dire • Identify who you do and do not want. • What questions will assist in creating the ideal jury pool. • Opening Statement • First chance to outline the theory and establish the theme • Only make one first impression

  32. E|S Pretrial Motions • Motions in Limine • Be selective • Narrowly confined to specific, important issues • Maintain credibility • Daubert/Schafersman I • Be sure you’ll win

  33. E|S Miscellaneous • Make sure your witnesses know where they’re going and what they should wear • Write everything out • Evidence checklists • Direct/cross examination • Opening/closing • Objections to exhibits and anticipated testimony • Have copies

  34. Show & Tell:  Using Physical, Demonstrative, and Documentary Evidence Joshua Yambor

  35. Show & Tell:  Using Physical, Demonstrative, and Documentary Evidence • Physical, Demonstrative & Documentary Evidence • What do I need to prove my case? • Medical records and bills, Reports, Photographs, etc.. • Is this evidence helpful? • How do I to get this exhibit into evidence? • Be prepared! • Rules of Evidence • Self-Authenticating • Records custodians • Physicians • Stipulations • Use of Depositions

  36. Show & Tell:  Using Physical, Demonstrative, and Documentary Evidence • Is the witness unavailable? • Stipulations • Demonstrative Exhibits - Will it assist the jury? - Get your equipment reserved (make sure it works) (OBA Rents!) - Disclose it to the other side (and the judge!)

  37. Whoops!  Did I Do That?:  Discussing Litigation Mistakes and Cleaning Up the Mess • Moving to Amend a pleading . . . then failing to file the Amended Pleading when the Motion is granted • General Discussion

  38. The War is Over: Finishing Up After Trial

  39. Post-Trial • Motion for new trial • Motion for JNOV (must ask for directed verdict) • Motion for Fees? • Costs? • Appeal?

  40. Takeaways • Prepare, prepare, prepare • Know your calendar • What/Who do I need; fair, reasonable, and necessary • Know your client, know the law and know where you are • Before drafting a complaint, fully research the opposing party, including social media sites. • When drafting a complaint, use short sentences, similar to requests for admission. • During trial, make sure you make a motion for directed verdict to preserve your ability to file a Motion for JNOV post-trial. • Be Prepared!

  41. Things That Make You Go Hmmmmmm: • Questions?

  42. NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Conclusion: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock

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