TRIAL PRACTICE AND THE LAW OF EVIDENCE

VIDEOTAPE #1

Participants in the drama:

Sun Resorts (a real estate development company)

Monica Atkins and Allen Coleman (owners of Sun Resorts)

Shoreline Realty (a real estate development company)

Joe Salem (owner of Shoreline Realty)

Kim and Roger Hodges (buyers of a condominium at Sun Resorts)

At their initial meeting with Joe Salem, Monica Atkins and Allen Coleman, the Hodges were told that a swimming pool, outdoor cafe and tennis courts would be added to the project in the very near future.

Joe Salem also told them later that Atkins and Coleman were donating 10% of the income from the project to charity (although he never asked which charity).

The litigants in a lawsuit are called the parties.

In Virginia, the moving party is called the plaintiff in a law case and the complainant in an equity case.

Joe Salem described the rental management agreement as follows: the owners are allowed to use the property two weeks a year, and it will be rented as much as possible the remainder of the time.

The promotional brochure indicated that an independent market study concluded that they could expect the rental income to be $150.00 a day during the summer season and $90.00 during the winter. The study also concluded that 85% of the units should rent every day of the year.

Joe Salem told the Hodges that he felt the property would rent 100% of the time.

Sun West (part of Sun Resorts) would manage the company for 20% of the income.

The property was not developed as promised and the buyers defaulted on their loan as a result. The bank foreclosed and the buyers lost their entire investment. They received no response from Sun Resorts when they tried to contact them.

Amani Glover, the attorney for the buyers, asked them if they bought the property primarily as an investment.

The tape touches on the primary differences between civil and criminal cases.

A defendant can be a corporation as a separate entity as well as the officers of the corporation individually.

Jurisdiction is based on the type of case the court was created to hear. Federal jurisdiction is limited to:

a) cases under the constitution, laws or treaties of the U.S. (federal question jurisdiction)

b) cases in which the U.S. is a party

c) diversity of citizenship (in which the plaintiff and defendant are from different states) provided at least $50,000.00 in damages is claimed

d) other types of cases (ie. bankruptcy, admiralty)

This case falls under ‘a’ as a federal statute is involved (the Securities Act) provided the plaintiffs bought the property as an investment.

The statute covers the fraudulent misrepresentation in an investment contract.

Removal to federal court: If the case were to be filed in a state court, the defendants could have it removed to federal court for trial if it can be shown that the case originally could have been filed in federal court.

All the defendants must agree to the request for removal.

The notice of removal (with all the documents previously filed in state court) must be made within 30 days of receipt of the initial pleading or within 30 days of having been served in the state action.

Pleadings

The case officially begins with the filing of the initial pleading (called the complaint). This stops the statute of limitations from continuing to run.

The clerk’s office will accept a pleading even if it drafted improperly (Rule 5e). It can later be modified to the proper form. This would prevent the statute of limitations from running out.

In Virginia, the initial pleading in a law case is called the motion for judgment...and in an equity case it is called the bill of complaint.

The initial pleading must lay out the basis for the court’s jurisdiction, state the legal grounds for the claim, show that the plaintiff is entitled to the relief he seeks and include a request for the damages claimed or relief sought.

All pleadings must be written separately in numbered paragraphs.

A lawyer who signs and submits a pleading certifies thereby that;

a) it is factually accurate

b) it is legally justifiable

c) it was not filed for an improper purpose (such as harassment or delay)

Rule 11 (FRCP) allows the court to impose sanctions if the above is not followed, such as reimbursement for the defendant’s costs in defending the suit (including attorneys’ fees).

The summons

Virginia: Notice of Motion for Judgment (law case) and a Subpoena in Chancery (in an equity case).

Rule 4 (FRCP) describes the rules relating to the summons).

The summons is a notice to the defendant that he is being sued and how much time he has to answer or risk being in default.

A default judgment means that the plaintiff’s claim is deemed valid (although he still has to prove the amount of the damages he is seeking....though what is called ex parte proof).

The summons together with the complaint will be served on the defendant...together, this is known as service of process. The rules describe how this may be done and who is permitted to do it.

It is up to the plaintiff to serve the defendant. This can be done by special process server or by U.S. Marshal (or sheriff in Virginia).

There is also a provision which allows the plaintiff to notify the defendant by mail of the lawsuit and request that he waive service. In either event, the defendant is notified of the action.

There must be a separate summons for each defendant in the case.

The defendant has 20 days (21 in Virginia) to respond to the complaint.

Jury demand (Rule 38): must be in writing and filed as a pleading (and is usually included as part of the complaint).

Assignment of the case: The case will be assigned a docket number and referred to a U.S. District Court judge. A magistrate judge may be appointed to handle the preliminary stages of the case, and if the parties agree, for the trial of the case (jury or non-jury).

This must be filed within 10 days of the last pleading relating to the complaint.

VIDEOTAPE #2

Rule 4 deals with waiver of service.

The recipient has a duty to help the plaintiff cut costs. Sanctions apply for refusal (in the form of a court order requiring the defendant to pay the cost of service).

The plaintiff notifies the defendant in writing on a form requesting waiver together with a copy of the complaint.

The defendant has 30 days (60 days if outside the U.S.) To file an acceptance with the court -- if accepted, then no service is required.

If he accepts, the defendant has 60 days (90 if outside the U.S.) to file an answer (otherwise, an answer must be filed within 20 days of service).

Exceptions to the waiver procedure:

a) the U.S. as a party must be served

b) infants or incompetent persons must be served.

Service of process

On an individual, according to the laws of the state in which the case was filed or service was accomplished.

Or by personal service -- or by leaving a copy of his dwelling with a person of suitable age (age 16, in Virginia, provided the person is a family member other than a sojourner or guest).

On a corporation - by serving the agent or an officer or managing agent of the corporation.

Who can serve process: anyone over 18 who is not a party to the case.

Service can be accomplished in any judicial district in the U.S.

(In Virginia, out-of-state service gives the court only in rem jurisdiction unless the longarm statute applies, in which case the court has in personam jurisdiction due to the connection that the defendant has with the state).

Time allowed to obtain service

In the federal system, the defendant has 120 days after filing to obtain service of process. In Virginia, the defendant has one year to obtain service.

After the 120 days have elapsed, the court can dismiss the case without prejudice (meaning it still can be refiled if the statute of limitations has not run out) or set a specific time in which service must then be accomplished.

The clerk’s office tracks the cases timewise and notifies the court when service has not been accomplished in a particular case.

Statute of limitations is tolled (stopped) by the filing of a complaint.

Service by marshal is required if the plaintiff is indigent or a seaman.

Proof of service

A proof of service form together with an affidavit is filed with the court by the process server, describing how and when service was accomplished.

An affidavit is not required when a U.S. marshal has made service.

If the U.S. is a defendant

a) a copy must be given to the U.S. Attorney in the district where the case is filed

b) a copy must be given to the Attorney General by registered or certified mail

c) a copy must be given to any officer, agency or corporation who is a defendant

The answer

Each allegation should be responded to (failure to respond to an allegation is deemed to be an admission of that allegation).

The defendant should either admit, deny or demand strict proof of the allegation (when he has no way of knowing the truth of that allegation).

Rule 12 allows the filing of a motion in lieu of an answer:

a) for a more definite statement of the complaint

b) to challenge improper service of process

Virginia allows a demurrer (a motion to dismiss for failure to state a cause of action for which can be granted) in lieu of an answer.

If the demurrer is denied, the court will set the time allowed for the filing of an answer.

Joe Salem waived service -- and therefore has 60 days to answer, but his time is running out (and he has been unable to contact the other defendants who seem to be avoiding him).

Rule 8: also describes what the answer must contain.

Rule 10 requires that the pleadings be in separate, numbered paragraphs.

Counterclaim

This would be an action by the defendants against the plaintiff. It would in fact be a separate suit in which the defendants become counter-plaintiffs in their claim that they were somehow damaged.

When a counterclaim is filed, the plaintiff has 20 days of service to answer.

Crossclaim

The defendants (Atkins and Coleman) are liable to the plaintiffs for Joe Salem’s representations.

But they could sue Joe if they didn’t know he was making those representations.

Their suit against Joe (one defendant suing another) is called a crossclaim. If filed, the cross-defendant (called the third party defendant) has 20 days in which to answer.

If a defendant answers the plaintiff’s complaint, and is then hit with a crossclaim by another defendant, he may include a crossclaim or counterclaim in his answer to the cross-complaint.

Rule 13(g) covers crossclaims.

Alternative theories in the same pleading

Rule 8(e) allows including alternative (even inconsistent) theories to be argued either in the complaint or answer.

Extension of time to file pleadings

A request for an extension of time to file an answer, if unopposed, is almost always granted. If opposed, the court will make a determination but probably will allow at least one extension for good cause.

Amendments to pleadings

A party may amend a pleading once as a matter of course. If a pleading requires a response, it can be amended before the response is filed.

Pleadings that do not require an answer can be amended within 20 days of service.

To amend more than once - or if the 20 days has elapsed - leave of court is required.

Third party practice

This means that someone other than the original parties is brought into the case as a party.

Atkins and Coleman want to sue Total Environment Management, Inc. for not doing its job and thereby making the venture fail.

VIDEOTAPE #3A

PRETRIAL PROCEEDINGS

Rule 1 describes the goal of the civil rules: to secure the just, speedy and inexpensive determination of every action.

Case management: the system designed to handle a case as efficiently as possible.

Civil Justice Reform Act (1990) required each federal district to implement case management techniques to reduce costs and delays in civil litigation in the following ways:

a) differential treatment of cases (individualized management of cases according to their needs, complexity and duration;

b) early and ongoing involvement of a judicial officer in the planning and progress of a case;

c) regular communication between the judicial officer and the attorneys during the pretrial process;

d) use of alternative dispute resolution programs when appropriate (ie. mediation, arbitration, early mutual evaluation, summary jury trials).

DISCOVERY

Regulated by Rules 26-37 (FRCP), by local rules and also by individual district and magistrate judges.

Rule 26: Any relevant matter is discoverable even if it is not itself admissible as evidence as long as it is likely to lead to admissible evidence. It includes:

a) the names, addresses and phone numbers of persons likely to have information about disputed facts;

b) documents, books and data compilations in the possession or control of a party;

c) testimony of important witnesses in a case;

d) documents bearing on damages and injuries suffered;

e) identity of expert witnesses;

f) identity of each document or other exhibit a party expects to offer in evidence

Rule 26(f) requires the parties to meet in a pre-discovery meeting to explore settlement and work out a discovery plan. This must be held at least 14 days before a scheduling conference is due.

Scheduling conference

This conference with the court establishes deadlines for discovery.

Rule 16 requires a scheduling order which shall control the subsequent course of the action unless modified by a subsequent order.

The order must be issued within 90 days after the appearance of the defendant or within 120 days after the complaint has been served on the defendant.

Rule 16 limits the time in which parties may be joined, pleadings may be amended, motions may be filed and discovery may be completed.

The court may also tailor discovery to particular cases, set dates for additional pretrial conferences and set a date for trial.

Rule 16 also allows districts to exempt certain categories of cases from these requirements.

The judge will issue a scheduling order after receiving the parties’ Rule 26(f) discovery plan or after consulting with the attorneys for the parties.

Rule 16(c) lists potential subjects that can be included.

Referral to a magistrate judge

Rule 72-73 allows judges to refer the following types of matters to magistrate judges:

Non-dispositive matters:

a) Rule 16 conferences

b) supervision of discovery

c) rulings on motions that do not dispose of claims or defenses

Parties can appeal rulings on these matters to the district judge within 10 days of the order.

Dispositive matters: a motion to dismiss the case or claim

The magistrate judge files proposed findings and recommendations to the district judge. The parties have 10 days to object. The district judge makes the final ruling.

In the present case, a scheduling conference with the magistrate judge broke the plan down into two phases. First, witnesses will be deposed and the case will be referred for mediation. The second phase will deal with damages and other pretrial problems as well as the time frame for filing motions.

Rule 7(b) requires motions to be in writing (unless made during trial) and the grounds must be stated with particularity. Motions must also set forth the relief and order sought.

Rule 56: Motion for summary judgment: when there is no dispute as to the facts. It can be made on any claim within a case. Failure to respond acts as a waiver.

` Rule 34: Request for production of documents: They must be relevant and not privileged. In the present case, there was an oral report from the independent expert’s estimate (given over the phone) as to occupancy (85% occupancy rate 25 days a month -- $150/$90 per day). The “guy died.”

Rule 34 allows entry on to land to inspect or test, etc. This can be a witness’ land as well as the land of one of the parties.

A subpoena duces tecum is an order directing a person to bring something to court. It is often used for medical records.

Rule 30: Depositions: a sworn oral question-and-answer session with a court reporter present. Can be of a non-party as well as a party to a case.

In the present case, Susie Raybuck was the secretary who was fired (and who had information about the oral occupancy estimate).

Interrogatories: written questions which must be answered in writing under oath. They are a good starting point for discovery.

In Virginia, they are limited to 30 (which can be exceeded with leave of court).

They help to narrow the issues.

Request for physical or mental examinations: can be used if the condition of the party is in issue (ie. in personal injury cases).

Rule 5 requires that all papers served on a party must also be served on the court. But the court can exclude discovery documents (which would then only be filed with the court when there is a dispute between the partes about such documents).

Motion to compel discovery: requires that a copy of the discovery material that is in dispute be attached as an exhibit.

VIDEOTAPE 3B

Susie Raybuck (the secretary for Sun Resorts) was deposed by Amani Glover (counsel for the plaintiffs). She testified that she probably took notes about the phone call from the person giving the estimate about the potential occupancy of the rental units.

She currently has files in her possession. She kept them when she got fired. The plaintiff will issue a subpoena duces tecum for those files. A second deposition was scheduled.

The files included notes which referred to an estimate of 40% occupancy rate during the first year (rather than 85% which was in the brochure). It also referred to $75/day (not $150) during the summer and $45 (not $90) during the off-season.

At the second deposition, she testified that she took notes after talking to Mr. Merriweather. He said a written report would follow. He died a week after the date he talked to her.

All the major parties were deposed, thereby completing the first phase of discovery. The case was then scheduled for mediation by the magistrate judge.

ADR: Alternative dispute resolution.

Mediation

a) works to improve communication between the parties

b) helps to clarify their interests and assess their case

c) helps to come up with options for resolving these disputes

Arbitration

An arbiter issues a non-binding judgement on the legal issue involved. The rules of evidence are somewhat relaxed.

Early neutral evaluation

An attorney with expertise in the area gives case planning guidance and a non-binding assessment of the case.

These procedures all promote settlement.

Rule 16(b): at any pretrial conference, the court may consider both settlement and use of special procedures to assist in resolving the dispute with authorized by statute or local rule.

The case was set for mediation.

All parties were encouraged to explain their position. Later, the mediator would talk separately with the parties.

Confidentiality is the rule -- of what is said or any documents used in mediation that are not otherwise discoverable.

The mediator is usually an attorney -- also one who is trained in communication and negotiation techniques.

The mediation led to a partial settlement as to damages. This alone would shorten the trial.

A second pretrial conference was scheduled by the magistrate. Deadlines were set for completion of the second phase of discovery and a final pretrial conference before the district judge.

Rule 16(d):

a) the final pretrial conference should be held as close to the trial as reasonably possible;

b) participants should prepare a plan for trial including ways to make it easier and quicker to admit evidence;

c) the conference should be attended by at least one of the attorneys conducting the trial for each party.

There was a stipulation as to damages.

At the final pretrial conference, the court looks to anticipated legal issues that can be dealt with prior to trial. There is to be an exchange of witness lists (with the subject matter each witness is expected to testify about). There is to be an exhibits list as well.

At the pretrial conference, the judge may:

a) limit the length of the trial by limiting the amount of time each side has for the presentation of its case and examination of the other side’s witnesses

b) resolve objections as to the admissibility of exhibits or other evidence

c) limit the volume of exhibits by ordering counsel to submit summaries of documents where appropriate

Sometimes the judge enters into the mediation process and tries for a settlement at this final pretrial conference.

The final pretrial order comes from this conference, including all of the court’s rulings.

Trier of fact

In a jury trial, the jury determines the facts and the judge determines the law.

In a non-jury (bench) trial, the judge handles both functions.

Rule 48: the verdict must be unanimous unless the parties agree otherwise.

Juries

The trial jury is called the petit jury.

The grand jury is the jury which hears evidence by the prosecution in a criminal case and hands down indictments.

Juries are chosen from counties within the judicial district.

The clerk of court draws members for the master wheel from the registered voter list. Forms are sent to each person. Some people can be excluded because of their situation or profession.

The qualified wheel: those not excused initially. Members are randomly selected for service.

These jurors might be excused by the court for undue hardship or extreme inconvenience.

A voir dire examination of the jury panel is made to ultimately choose the jury.

Rule 48 allows a jury to be composed of from 6 to 12 jurors.

VIDEOTAPE #4

THE TRIAL

Pretrial matters

Immediately prior to trial, any preliminary matters that need to be addressed will be discussed and resolved.

The court will then call for a jury panel.

Voir dire

To speak the truth. Jurors are questioned either as a panel or privately about any matter that might affect their ability to act as jurors in a case.

Rule 47 allows the court to ask questions (with appropriate additional questions proffered by the attorneys, or with the court’s approval, the attorneys may ask the questions themselves.

Challenges for cause

Allow a juror to be stricken from the panel for this case for any reason that would prevent him from acting impartially. Are unlimited in number.

Peremptory challenges

Allows the attorney for each side to strike a juror from the panel for no particular reason (although it cannot be based on race or gender). Are normally 3 per side. For multiple parties, the court has discretion as to whether to add more strikes or make the parties for one side split the challenges.

Choosing the jury

A group of 15 jurors is chosen randomly from the panel. Each side takes their peremptory strikes (in this case, 4 per side) to reach 7 members.

Opening statements

Must be made by the plaintiff. May be reserved by the defendant until after the close of the plaintiff’s case-in-chief or waived altogether. Not considered evidence.

Burden of proof

In a civil case, the burden of proof is on the plaintiff to prove his case by a preponderance of the evidence...the jury must give more weight to his side than the other side.

Examination of witnesses

Direct examination: by the party who called the witness. He may not lead the witness (imply the answer he wants) except to get the to the area in issue, if the witness is hostile or to jog the witness’ memory.

Cross-examination: by the other side. Leading questions are permitted. Is theoretically limited to the issues that were brought up on direct examination.

Redirect: by the plaintiff. Is limited to the issues brought out in cross-examination.

Case-in-chief: the plaintiff’s case which is presented to the jury...must establish a prima facie case (one from which a reasonable jury could find for the plaintiff).

Rule on witnesses

Provides for the sequestration of witnesses from the courtroom prior to their testimony. It does not apply to parties.

Motion to dismiss (Rule 50)

Made by the defendant at the close of the plaintiff’s case for failure to state a prima facie

case.

Subpoena

Requested by the attorneys for witnesses to appear at trial. Are issued by the clerk’s office and are in fact court orders, which if ignored, expose a person to a contempt citation.

Defense case

Follows the motion to dismiss.

Rebuttal witnesses

Can be called by the plaintiff to rebut the evidence produced by the defendant.

Closing arguments

Plaintiff’s closing argument - defendant’s closing argument - plaintiff’s rebuttal argument.

Arguments are not evidence.

Jury instructions

In the federal system, they are read to the jury by the court from a standard set of instructions (with additional ones being proffered by the parties). In Virginia, the parties submit written instructions prior to trial for the court to read to the jury.

Jury deliberation

In private. Jury verdict must be unanimous and must be from a jury of at least 6 people.

If the jury cannot reach a unanimous verdict, the judge will declare a mistrial and the case will be rescheduled for another trial.

Dynamite instruction: tells the jury to work hard at reaching a verdict...that if they don’t, another jury will have to hear the case.

Verdicts

General: either for the plaintiff (in a particular amount) or for the defendant.

Special: with written findings on each fact.

The verdict will then be entered on a document called “The judgment.”

Time to object to final judgment

The losing party has 10 days to file a motion for a new trial, to modify the final judgment or to note an appeal.

Stay of execution

No judgment can be enforced during a stay of execution, which will be authorized during the course of an appeal or while a motion for a new trial or modification of judgment is pending.

Costs

Costs can be taxed to the losing party at the discretion of the trial court. Included are filing fees, witness fees and court reporter costs (not attorney’s fees).

Some federal cases allow the court to award all costs to the winning party.

Collection

Writ of execution: orders the marshal to seize and sell property to satisfy a judgment

Garnishment: Seizes wages or other property in the hands of a third party which is owed to the losing party.