Chapter 6 Civil Procedure & Trial Practice

2. Chapter 6Civil Procedure & Trial Practice

3. Pleadings - I Summons & Complaint Sets forth relevant allegations of fact that give rise to one or more legal causes of action includes damages requested Case: Improper service of a summons

4. Pleadings - II • Demurrer • A pleading filed by a defendant challenging legal sufficiency of a complaint.

5. Pleadings - III Answer A pleading which admits or denies specific allegations set forth in a complaint. Counterclaim A request for a written itemization of the claims which a defendant can demand from the plaintiff to determine details of a claim.

6. Pleadings – IVBill of Particulars Request for a written itemization of claims a defendant can demand from plaintiff to determine details of the claim, e.g. date & time of day negligence where the alleged malpractice occurred the act negligent alleged to have occurred how the alleged the negligence occurred listing of injuries claimed listing of any witnesses alleged malpractice

7. Discovery & EBTs Process of investigating facts of a case before trial. Discovery rules promulgated to prevent trial by ambush.

8. Objectives of Discovery Obtain evidence that might not be obtainable at time of trial. Isolate & narrow issues for trial; Gather knowledge of the existence of additional evidence that may be admissible at trial. Obtain leads to enable discovering party to gather further evidence.

9. Examination Before Trial An EBT may reveal sufficient facts discouraging plaintiff from continuing the case or it may encourage one or both parties to settle out of court.

10. Deposition A deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format.

11. Attorney-Client Privilege Confidential communications made by a client & an attorney

12. Elements Needed to EstablishAttorney-Client Privilege Both parties must agree that the attorney-client relationship does or will exist. Client must seek advice from an attorney in his or her capacity as a legal advisor. Communication between attorney & client must be identified to be confidential.

13. Incident & Investigative Reports - I Incident Reports not generally protected from discovery Statistical Data – Not Always Privileged

14. Incident & Investigative Reports - II • Cases • Incident Reports Not Always Privileged • Statistical Data NotAlways Privileged

15. Preparation of Witnesses – I Review records Do not be antagonistic Be organized in: thinking recollection of facts Answer “only” questions asked Explain simply, succinctly

16. Preparation of Witnesses – II Do not over-dramatize Do not become over-powered by cross-examiner Be polite, sincere, & courteous Dress appropriately Be well groomed Listen for objections

17. Preparation of Witnesses – III Review your EBT before trial Be honest with examiner Do not show displeasure Ask for questions to be repeated for clarification Not sure of answer – indicate you are not sure

18. Pretrail Conference Informal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues, and settle procedural matters relating to the trial.

19. Pre-Trial Motions - I Motion to Dismiss a case Defendant alleges plaintiff‘s complaint does not set forth a claim or cause of action recognized by law.

20. Pre-Trial Motions - II • Motion for Summary Judgment • Either party to a suit may believe that there are no triable issues of fact & only issues of law to be decided. • In such event, either party may make a motion for summary judgment. • Cases • Summary Judgment Granted • Summary Judgment Denied

21. Notice of Trial Once a decision to go forward is reached, the case is placed on a court calendar.

22. Notice of Trial Once a decision to go forward is reached, the case is placed on the court calendar. Postponement of the trial may be se- cured with the consent of both parties and the consent of the court.

23. Memorandum of Law A memorandum of law (or trial brief ) presents to the court the nature of the case, cites case decisions to substantiate arguments, and aids the court regarding points of law.

24. Judge Handles conduct of trial Decides questions of law Determines issues of procedure Decides if evidence admissible Charges the jury May direct a verdict

25. The Judge Decides questions of Law Ensures that the trial is conducted in a fair manner Decides whether evidence is admissible

26. The Jury • Selected from jury list • Determines the facts • Determines issues of fact • Determines damages, if any

27. Subpoena - I A legal order requiring the appearance of a witness and/or the presentation of documents at a legal proceeding.

28. Types of Subpoenas Subpoena ad testificandum Subpoena for a witness Subpoena duces tecm Subpoena of records

29. Burden of Proof Obligation of the plaintiff to persuade the jury regarding the truth of his or her case.

30. Res Ipsa Loquitur“the thing speaks for itself” Legal doctrine that shifts the burden of proof from the plaintiff to the defendant.

31. Res Ipsa LoquiturProof Required 1. Event causing injury – would not normally have occurred in the absence of negligence 2. Defendant – must have exclusive control over instrument causing injury 3. Plaintiff – must not have contributed to the event causing injury.

32. Wrong Medication – I Stanley refills his drug prescription at Discount Drugs. Prior to taking his nightly dosage he noticed the pills appeared larger than normal. He phoned Discount Drugs & explained his concern. The Pharmacist, stating he was busy, assured Stanley generic drugs sometimes are larger & the medication was correct. Stanley took the drug & never woke up. The dosage given was five times that prescribed. The pharmacist filled Stanley’s prescription from the wrong container. Is the pharmacy liable for Stanley’s death?

33. Yes The plaintiff – Stanley - need not prove conclusively that the defendant -pharmacist’s - negligence resulted in injury, only that all reasonably probable causes of the accident can be traced to the defendant. See res ipsa loquitur above.

34. Opening Statements Plaintiff's attorney: provides, in capsule form, the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client. Defense attorney: explains the facts as they apply to the case for the defendant.

35. Examination of Witnesses Officer of Court Administers Oath Direct Examination Cross Examination Redirect Examination Recross Examination

36. Evidence - I Direct Evidence Statutory Evidence Violation of a statute may constitute direct evidence of negligence, or it simply may voice a duty that is owed to a particular class of persons who are protected by the statute or regulation.

37. Evidence - II Policies & Procedures Day-to-day organization operations. If a violation of a p&p causes injury to one whom the policy or procedure is designed to protect, such violation can give rise to evidence for negligent conduct. Demonstrative Evidence Documentary Evidence Judicial Notice

38. Evidence - III Hearsay Evidence Case: Hearsay & Lost Chance of Survival Medical books as Hearsay Evidence

39. Presenting Evidence - IV • Expert Testimony • Experts necessary • When issues to be resolved are outside the experience of the average juror. • Experts not always necessary • Issues are within common knowledge understanding • E.g., broken bones should be x-rayed

40. Cases: Expert Testimony - I Amputation of the Wrong Limb Resident Suffers Indignities Pharmacist Not Always a Qualified Witness Gross Negligence

41. Cases: Expert Testimony - II Surgical Sponge Left in Patient Falls from Defective Chairs Negligent Insertion of an IV Admissibility of Physician Testimony

42. Negligence Defenses - I Ignorance of Fact/Unintentional Wrongs Assumption of a Risk Contributory Negligence Good Samaritan Statutes Pre-existing Duty to Care Emergency Assiance

43. Legal Defenses - II Borrowed Servant Doctrine Hospital Responsible for Resident’s Negligence Physician Not Responsible for Resident’s Negligence Captain of the Ship Doctrine

44. Legal Defenses - III • Comparative Negligence • Statute of Limitations • Sovereign Immunity • Federal Tort Claims Act • Failure to Refer • Nurse’s Negligence: Immunity Denied

45. Legal Defenses - IV • Intervening Cause • A force which takes effect after the defendant’s negligence, which contributes to that negligence in producing the plaintiff’s injury.

46. Superseding Intervening Cause An unforeseeable force coming into being after defendant’s negligent act, which cancels the defendant’s liability by breaking the chain of causation from the defendant’s act to the plaintiff’s injury. Such an act destroys the casual connection between the negligent act of the defendant & the injury. Damages are not recoverable because the original act is not the probable cause of plaintiff’s injury.

47. Unforeseeable Causes Malicious, intervening acts, if unforeseeable. Intervention by one with a higher ethical duty to the victim (e.g., parent or guardian). Extraordinarily negligent intervening conduct. Acts of God (e.g., floods, hurricanes, tornados, earthquakes).

48. Case: Lighting Strikes Mary underwent surgery at General Hospital in Anytown, U.S.A. The power grid in the northeast shut-down & the hospital’s emergency generator came on line. Lighting struck the generator & the OR lights went out. The surgeon cut an artery while completing Mary’s surgery under difficult circumstances. Mary suffered serious injuries. Mary sues the surgeon. Will Mary succeed in her lawsuit?

49. NO! There was a Superseding Intervening Cause. It was unforeseeable that the power grid in the NE would shut down & lighting would strike the generator.

50. Foreseeable Intervening Causes Those subsequent forces which: objectively speaking, one should reasonably anticipate, or those the defendant should reasonably anticipate under the circumstances.