Scenario Case Study Questions

1.

Sharing information between the offices should include issues such as networking computer systems (WAN), the “need to know” issues raised by any conflicts of interest, ESI (Electronically Stored Information) and remote access by all members of a legal team, and security issues to protect confidentiality.

2.

Should show the lead attorney as having line authority, and have clear reporting & supervisory channels.  The multi-office interface should be clear.

3.

Documents, exhibits, calendars (deadlines should be tickled), witnesses, timelines, etc.

4.

Experience in client communications (the trauma & loss argue for extra sensitivity in interviews), organization (complexity of multiple parties, enormous quantities of information, multiple deadlines, etc.), ability to do research, both factual & legal, good computer skills, discovery experience, and familiarity with the Rules of Civil Procedure would be good starting points.

5.

If they are working on the same case, as long as they don’t discuss it outside the office setting, no problem!

INTRODUCTION TO CIVIL LITIGATION

Civil litigation involves real disputes between parties seeking a remedy for a civil wrong or to enforce a contract

THE ROLE OF THE PARALEGAL IN CIVIL LITIGATION

Civil litigation is a process that requires the assembly of information and evidence, analysis of facts and law, preparation of material for trial presentation, post trial appeals and execution judgments.

Maintaining positive client relationships is a critical area of the practice of law.

The paralegal is a member of a legal team comprised of lawyers, who supervise the team, which may be made up of law firm partners, associates, and legal support staff.

Corporate paralegals typically serve in a supervisory role coordinating between in-house counsel and litigation counsel.

The increased use of technology has led to the paralegal serving as any litigation support manager, or coordinating and facilitating the technology needs of the legal team.

SKILLS OF THE PARALEGAL

Skills needed by a paralegal are varied and depend on the nature of the legal specialty. Skills common to all paralegals include resourcefulness, commitment, analytical skills, interpersonal skills, communication skills, professionalism, human relations skills, and soft skills.

THE CIVIL LITIGATION PARALEGAL TASKS

Civil litigation paralegals may be called upon to perform many tasks, including interviewing clients and witnesses, investigating facts, organizing and managing case files, drafting pleadings and other documents, assisting at trial, and administrative tasks including conflict checking and keeping.

1.

The lead attorney should have the ultimate responsibility; the paralegal may be the coordinator of in-house, outside counsel partnerships.

2.

Should address the IT aspects of present-day litigation, and the cost-effectiveness of using lower billing members of the team.  Also, mention UPL as a reason for utilizing paralegals for tasks like discovery, organization – frees up the attorney for depositions, settlement meetings & court time.

3.

Should center around communications & organization, both traditional & electronic.

4.

Maintaining case files, preparing/managing discovery, interviewing & investigation, client contact, locating & preparing witnesses, organizing materials for trial (trial notebook, litigation management software), preparing exhibits for trial, maintaining a tickler system for the project, and serving as an IT assistant in settlement conferences & trial.

Civil litigation

Involves legal disputes between parties seeking a remedy for a civil wrong or to enforce a contract.

Paralegal

Support staff of the lawyer .

Lawyers

Are law school graduates who have passed the bar examination and hold a license to practice law having met the minimum qualifications established by the individual jurisdictions or courts for obtaining a license to practice and represent clients.

Partners

Are lawyers who have an ownership interest in the law firm. They have a stake in the profits of the law firm.

Associates

Are non-owner lawyers, usually salaried employees of the law firm.

Managing partner

Is the partner responsible for managing the business operations of the firm such as taking care of the facilities, management, human resources supervision, and public relations for the firm.

Supervising lawyer

Is the member of the legal team to whom all others on the team report and who has the ultimate responsiobility for the actions of the legal team.

Support staff

Are the other members of the law office providing support functions to the legal team; includes law librarians, legal secretaries, receptionists, information technologist, bookkeepers, and mailroom personnel.

Soft skills

Term used to refer to the skills sometimes called people skills or human relations skills.

Resourcefulness

The ability to meet and handle a situation and find solutions to problems.

Commitment

Finishing what one starts out to do or complete.

Analytical skills

Allow one to follow a step-by-step process to solve a problem.

Interpersonal skills

Ability to work with people, are vital to paralegal success, as well as to success in other endeavors.

Communications skills

Expressing ideas effectively.

Professionalism

A way a professional is expected to approach their job in a professional way and conduct themselves in a professional manner.

Inside corporate counsel

Generally, those who select the outside law firms and monitor the handling of the civil litigation.

Conflict of interest

Interests or loyalties may appear to be divided.

Opening Scenario

Questions & Exercises

With two separate and growing offices, Ethan Benjamin, as the partner with the most technical knowledge, was being looked upon as the one to organize and establish a practices and procedure manual for the two office firm of Mason, Marshall & Benjamin dealing with technology issues in civil litigation. The distance separating the offices made commuting between the offices impractical. On a good day, with traffic, it could take over an hour, and on a bad day, with bad weather, it could be two hours. The two offices had to work together on many of the cases because they did not have enough work, or financial resources to hire extra staff or attorneys. Mrs. Hannah was the most senior of the staff and the office manager and administrator of the firm. She had given up a position at a downtown office to work in the suburban office at a reduction in salary just to avoid the time and stress of the daily commute and was not willing to relocate. She needed access to the time and billing records from both offices to prepare bills and make sure all the expenses were properly monitored and paid.

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  How do legal teams manage the documents required for litigation?

2. How do the Federal Rules of Civil Procedure apply to electronic documents?

TECHNOLOGY IN CIVIL LITIGATION

Technology in the law office, courthouse, and courtroom has changed the way many traditional procedures are performed. Computers are now used for maintaining old types of records, communications, research, filing of documents and in trial presentations.

The revisions to the Federal Rules of Civil Procedure have imposed new obligations on the legal team and the deadlines for the taking of electronic discovery.

Larger offices usually have a technical support staff to handle questions and issues about the use and implementation of technology.

Paralegals are frequently called upon to work with independent computer, software, and multimedia consultants.

ETHICAL ISSUES OF THE LEGAL TEAM

Ethical behavior is expected and required of every member of the legal team. Ethical rules are minimum standards of behavior that apply equally to the attorney, the paralegal, and the other members of the legal team. Among the ethical obligations are those of competency and confidentiality.

The attorney–client privilege is a rule of evidence that protects the client from having the attorney required to reveal confidential information. All members of the legal team are obligated to keep all client information, from whatever source it is learned, confidential in the realization that unless the client gives informed consent or except when impliedly authorized such as by statute.

It is now accepted that the attorney–client privilege applies to all members of the legal team.

The work product doctrine provides a limited protection for materials prepared by a legal team in anticipation of litigation or for trial.

Loyalty to the client is the essence of the ethical rule that prohibits conflicts of interest, and conflict of interest provides that a lawyer shall not represent a client if the representation will be directly adverse to another client's interests, with some exceptions.

COMPUTERS AND NETWORK SECURITY

Computer security is a critical issue for the law office and the courts. The legal team must understand the use of firewalls to limit access to computers and computer networks and the use of encryption technology to put a “lock" around computer information.

Computer antivirus programs are essential to protect computers from malicious programs that can attack and destroy computer programs and occasionally hardware.

Title

1.      Technology in Litigation

13. In-House IT Staff

2.      Typical Law Office Uses

14. In-House IT Staff, con’t

3.      Typical Law Office Uses, con’t.

15. Outside IT Consultants

4.      Document Storage

16. Outside IT Issues

5.      Delivery

18. Courthouse Technologist

6.      On-line Storage & Collaboration

19. Outsourcing Tasks

7.      Secure Remote Access

20. Competency

8.      Computer & Network Security

21. Confidentiality & Privilege

9.      Firewalls & Encryption

22. Work Product

10.  Computer Viruses

23. Exceptions

11.  Federal Rules of Civil Procedure

24. Extension of Privilege to Agents

12.  Technology Support

25. Conflict of Interest

1.

The speed in which cases move to trial, and the ubiquitous presence of electronically drafted documents has been addressed by the most recent rules.  The real question that remains is what the new requirements are for retention, litigation holds & the archiving of documents.

2.

In addition to law office requirements, paralegals may serve as liaisons to other firms in discovery, multiple jurisdiction suits, and as technological assistants in the courtroom.

3.

Making sure the firm has

·        compatible software (office suites & specialty applications)

·        adequate hardware to handle the volume & speed required

·        adequate ESI systems, with access to all offices and remote access from courthouses, etc.

·        specialty programs to handle discover needs

·        software that is compatible with the local courts

·        security: passwords, encryption, firewalls, virus & spyware protection

4.

In addition to the general ethical rules, be sure that the possibility of conflict with outside IT is mentioned.

5.

In addition to the conflict of interest, there’s confidentiality & competence.

6.

This centers around the belief that a relationship has begun is more important than subsequent employment, and that a paralegal can establish an implied relationship, too.

7.

This concentrates on the need for it to be prepared for specific litigation, rather than as part of general representation.

8.

Yes – with proper arguments.  The agency analysis argues yes.

9.

Should highlight the special difficulties involving reviewing documents and redacting protected material.

10.

Particular attention should be paid to discovery conferences & court orders involving discovery or settlement/trial presentations.

11.

Mention should be made of privilege & confidentiality.  Security methods will include encryption, passwords, virus & spyware checking & firewalls.

Confidentiality

Security of documents.

Smoking gun

A document on which the case hinges that may be introduced into evidence.

Electronic repository

Files stored electronically in a secure protected file server to which everyone authorized has access over the internet.

On- line collaboration

Using the internet to work collaboratively

IT

Technical support staff that handles questions and issues about the use and implementation of technology, computers, and software.

Remote access

A way to support potential application issues

Outsourcing

Buzzword for shipping work out of the office or overseas to save money.

Attorney- client privileges

Rule of evidence that protects the client from the attorney being required to reveal the confidential information.

Work product doctrine

Provides a limited protection for material prepared by the attorney, or those working for the attorney, in anticipation of litigation or for trial.

Conflict of interest

Representation of one client will be directly adverse to another client.

Agents

Legal assistants, accountants, and other experts of the lawyer.

Hacking

Unauthorized parties gaining access to the computer network.

Firewall

Is a program designed to limit access to a computer or to a computer network system.

Encryption

Permits a computer user to basically put a lock around its computer information to protect it from being discovered by others.

Viruses

Range from those that create minor inconvenience to those that can destroy data and cause computer shutdowns.

Opening Scenario

Questions & Exercises

Owen Mason, Esq., called his partners Ariel and Ethan on a conference call linking the two offices to tell them about the new case he had just signed up. They had been asked to represent all the passengers and the families of the children injured in a significant motor vehicle accident involving a school bus. As part of the initial interview Owen had obtained the initial state police investigation report with the names and addresses of all parties involved as well as those of the potential defendants. It was clear to him that there was a potential question of diversity of citizenship, and the damages were far in excess of the federal rules for jurisdiction. The question they had to decide was which of the potential courts was most desirable for bringing an action of this type. Jury awards were being published on numerous websites and in hard copy journals and he had a concern as to whether the clients would be best served by filing suit in one of the state courts or in the federal court.

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  What is meant by “the law”?

2. What is the purpose of requiring courts to have jurisdiction to hear a case?

Scenario Case Study Questions

1.

Certainly the scope of the suit, number of parties, and considerations of the jurisdiction’s tort law (caps on damages?) are considerations, along with the usual state/federal analysis.

2.

The goal is to maximize the possible judgment for the client while not “forum shopping” to intentionally put the opposing party at a disadvantage.

3.

The cost of long-distance litigation has been reduced by the use of electronic communications, but there should be some discussion of the convenience, the need for outside counsel if the litigation is multi-jurisdictional.

INTRODUCTION TO THE COURT SYSTEM

Courts are the ultimate place for the resolution of civil disputes in a neutral location

SOURCES OF AMERICAN LAW

There are four primary sources of American law: constitutions, statutes, administrative rules and regulations, and case law.

CAUSE OF ACTION

A cause of action is a wrong that is legally recognized as a basis for compensating a person for harm caused by another.

The two main areas of the civil causes of action are torts and contracts.

Torts are civil wrongs that are not breaches of contract for which the court can fashion a remedy.

There are four elements of a negligence action:

1.       Duty of care

2.       Breach of the duty of care

3.       Causation

4.      Damages

The elements of a breach of contract action are:

1.      Offer

2.      Acceptance

3.      Meeting of the minds

4.      Consideration

5.      Lawful purpose

6.      Competent parties

7.      Breach

8.      Damages

REMEDIES

Civil remedies include money damages and equitable relief, including specific performance and injunction.

JURISDICTION

Jurisdiction is the power of the court to hear a case where a person has standing to bring a lawsuit in an actual dispute or controversy for which the specific court has subject matter jurisdiction to hear and decide the particular type of dispute.

Some courts have limited jurisdiction; they are authorized to hear only certain types of disputes. Other courts have general jurisdiction, which gives them the power to hear all types of matters.

Before a court will act it must have personal jurisdiction, authority over the person as well as subject matter jurisdiction.

Long arm statutes give the courts power over parties who reside in other states but had utilized some state service or facility that subjects them to the jurisdiction of that court.

Venue

Venue refers to the court that is the most convenient for the witnesses or parties to have the case tried of all of the courts that have jurisdiction over the persons involved and the subject matter.

ORGANIZATION OF THE COURT SYSTEM

State and federal court systems have trial courts where evidence and testimony are presented to a finder of fact, intermediate appellate courts that review the procedural and substantive issues raised in the trial court, and an ultimate court of appeals which in the federal system is the Supreme Court of the United States.

Basic government questions -- the answers should at least touch on:

1.       

Constitutions, federal & state, and some legislative grants of power, as well as court rules from the judicial branch

2.       

Citizens of different state, $75,000 minimum, mention of determining complete diversity

3.       

Variety of responses, perhaps including convenience, speed, costs, damage limits in various courts.

4.       

Constitutions, statutes, administrative rules & regulations, case law

5.       

Legislative enactments

6.       

Rules & regulations

7.       

Promulgating the rules/regulations required to carry out their legislated mandate

8.       

Opinions of appellate (or in rare cases trial) court decisions

9.       

Using previous decisions as a basis for current decisions

10.   

A wrong that is legally recognized as a basis for compensating a person for a loss

11.   

Special damages are easily documented, general damages are more speculative

12.   

Compensatory damages make the plaintiff “whole”, while punitive damages look to the defendant, in an effort to discourage future conduct.

13.   

People have standing to sue if they have a personal stake in the outcome of the controversy.

14.   

Courts do not give advisory opinions – there must be a real controversy for the court to hear it.  NOTE:  The mootness issue raised in abortion cases, Roe v. Wade, 410 U.S. 113 (1972), makes an interesting discussion of this concept.

15.   

The power to hear a particular type of case.

16.   

General jurisdiction courts hear all civil & criminal matters brought before them (although there may be minimum amounts required to be in controversy, and the criminal issue must have arisen from the laws of that jurisdiction)

17.   

Should include both service of process & long-arm/in rem considerations

18.   

Of the courts that have jurisdiction, venue picks the one that is (generally) most convenient.  NOTE: a review of the “change of venue” decision in Sheppard v. Maxwell, 384 U.S. 333 (1966) could be useful.

19.   

To settle a dispute.

20.   

To correct errors of law that occurred during trial

21.   

Permission to bring a case, granted by the highest court, to which a party does not generally have a RIGHT of appeal

Diversity of citizenship

Cases involving citizens from different states.

Constitution

Document that establishes the conception, character, and organization of a government, the fundamental and organic law.

Executive branch

One of the three co-equal branches created by the Constitution in which power is shared.

Judicial branch

One of the three co-equal branches created by the Constitution  in which power is shared

Legislative branch

One of the three co-equal branches created by the Constitution  in which power is shared

Statutes

Enactments by the legislative branch that include provisions to define and regulate the conduct of its citizens.

Case law

Written decision by a court, which resolves the particular legal dispute before the court.

Stare decisis

The system of using prior case law decisions for making current decisions.

Cause of action

Wrong that is legally recognized as a basis for compensating one for the harms suffered.

Elements

Makes up the cause of action and defines that cause of action.

Plaintiff

Must prove each element of the cause of action.

Preponderance of the evidence

Evidence of the greater weight.

Torts

Civil wrongs the court can fashion a remedy.

Negligence

Cause of action in which plaintiff claims that another person’s failure to act as a reasonable person would have acted under the same or similar circumstances caused injury for which the plaintiff should be awarded and damages.

Defendant

A person against whom a legal action is brought.

Duty of care

Not be the cause of a risk of harm.

Strict liability

Plaintiff is not required to prove a breach of duty of care because the proof is solely within the possession of the defendant or the caused injury is unreasonably dangerous to the user of the product.

Contract

Any agreement that is enforceable in a court of law.

Statute of frauds

Certain contracts must be in writing to be enforceable.

Monetary remedies

Assign a financial value to the harm suffered by the plaintiff.

Compensatory damages

Seek to calculate a monetary value for the actual loss suffered by the plaintiff.

Special damages

Can be calculated with some level of accuracy.

General damages

Related to the injury sustained but are not calculated with any particular formula or accuracy.

Punitive damages

Designed to punish the defendant for behavior that shocks the conscience of the finder of fact.

Equitable remedy

Order the neighbor to remove the fence or relocate it to the actual boundary line.

Specific performance

Court orders someone to do something.

Injunction

Court orders someone to stop doing something.

Jurisdiction

Who initiates an action, what types of disputes may be brought before the court, and what authority the court has to resolve disputes.

Standing

Describes the plaintiff’s right to bring a lawsuit.

Subject matter jurisdiction

Authority of a court to hear and decide a particular type of dispute.

Limited jurisdiction

Many jurisdictions the trial courts are authorized to hear certain types of disputes.

General jurisdiction

Courts having the power to hear all types of matters.

Personal jurisdiction (in personam)(16)

Requires the court to have authority over the persons as well as the subject matter of the lawsuit.

In rem jurisdiction

Court may hear any dispute concerning property, such as title to real estate or ownership of personal property such as a painting or other tangible property, located within the geographic jurisdiction of the court.

Long arm statutes

Laws enacted by a state’s legislative body to extend jurisdiction over parties who reside in other states but have utilized some state service or facility that subjects them to the jurisdiction of the state.

Minimum contacts

Defendant has established contact with a state to the extent that it is not unreasonable to expect the defendant might use that state’s court or be required to defend a lawsuit in that jurisdiction.

Venue

Court will be selected for purposes of filing a lawsuit.

Concurrent jurisdiction

Federal and state courts both have subject matter and personal jurisdiction.

Procedural laws

Body of law that governs how a case is filed and tried.

Substantive law

Concerns the application of statues and case law which determine the rights and obligations of the plaintiff and defendant.

Removal

Change of a legal case from one court to another based on a motion by one of the parties stating that the other jurisdiction is more appropriate for the case.

Courts of record

Courts in which the testimony and evidence presented are recorded and preserved.

Appellate courts

Review the record from the trial court to determine if the trial judge made an error in applying the procedural or substantive law.

Affirm

Appellate courts may agree with the trial court.

Reverse

Appellate courts may disagree and change the decision previously made at the trial court level.

Remand

Sending the case back to the trial court to take further testimony and either make new findings of fact or make new applications of law.

Opening Scenario

Questions & Exercises

The partners in the firm, Owen Mason, Ariel Marshall, and Ethan Benjamin called a firm meeting with the staff from both of the offices to discuss a new case. It was unusual for them to convene a meeting of everyone, so the support staff were anxious and concerned until word got out it was about a major new case. The firm had just been contacted about handling a major case involving a school bus accident that resulted in fatal injuries to some passengers and serious injuries to others. They assembled in the firm’s center city office to review the steps and assign the responsibilities for handling the new lawsuit. The firm had been approached and consented to represent all the passengers in the accident and their families.

            The firm’s paralegals Caitlin and Emily raised concerns about interviewing the injured children and the parents of the deceased children who had been in the bus. They wanted to be certain that each client was properly interviewed, and all the necessary investigations concluded before filing suit. The nature of the claims and potential damages lead the partners in the firm to decide the federal court offered the best place to try the case. Mr. Mason as the partner most familiar with the federal courts was concerned about the time limitations for additional investigation after the suit was filed and the defendants served. Staff resources were not unlimited as in some of the bigger firms, and it was certain that a large litigation firm with virtually unlimited resources would be representing the defendant individuals and corporations. Everything had to be completed as much as possible before commencing suit.

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  Is an interview a confirmation of already known information, or should it produce unexpected answers?

2. Is it always better to tape record an interview for maximum accuracy?

INTRODUCTION TO CLIENT INTERVIEWS AND INVESTIGATION

Trial preparation starts with the first client contact and the gathering of the first document. The initial contact with a client or potential witness may set the tone for the interview and willingness of the person to cooperate.

PREPARING FOR THE INTERVIEW

Investigation checklists should not be viewed as static documents. Physical surroundings in the interview location can set the tone for the interview.

Dress and appearance, clothing, posture, and manner of greeting create the first impression

Communication skills in a multicultural society require that interviewers develop an ability to appreciate differences in how and why individuals act and react differently.

CONDUCTING THE INTERVIEW

The paralegal must in the first meeting make it clear that he or she is a paralegal and not an attorney and that only an attorney can give legal advice.

Listening skills require the ability to listen to what is being said and not just the words being used. Good listening skills include the ability to avoid distractions and not make assumptions about the facts of the case.

Leading questions are those that suggest the desired answer.

Open-ended questions are designed to give interviewees an opportunity to tell their story without the limitation of a yes or no answer.

MORAL VERSES ETHICAL CONSIDERATIONS

Moral obligations are ones based on one's own conscience or perceived rules of correct conduct. Ethical obligations for the paralegal are based upon the Model Rules of Professional Conduct.

EXPERT WITNESSES

Experts are individuals whose background, education, and experience are such that the court recognizes them as qualified to give an opinion based on a set of facts.

Some law firms retain an expert to advise them but do not use that expert to testify.

INVESTIGATING CLAIMS

The legal team must gather all of the relevant information about a cause of action before making a recommendation to a client whether to file a lawsuit or respond to a claim of wrongdoing. A defense perspective requires the legal team to anticipate the potential defenses.

Official reports associated with all litigation that must be obtained and analyzed including verification of the physical aspects of the case.

Tangible evidence consists of physical objects that may have caused the injury.  Loss or destruction of physical evidence may lead to a claim of spoliation of evidence and an adverse inference or sanctions from the court.

Timelines can be used to view the physical events leading up to the incident and offer a graphic representation.

Freedom of information act

The Freedom of Information Act is a federal statute designed to open to the public information possessed by the federal government and its agencies.

Individual agencies may not make available certain types of information.

Locating witnesses

Witnesses may be located from official reports, directories, and the Web.

Basic government questions -- the answers should at least touch on:

1.   

The screening interview must at the very least produce the information needed to determine

·        whether the firm can handle this type of case (resources, competence, etc.)

·        whether there appears to be a legitimate cause of action, not a frivolous claim

·        if there is a conflict of interest (conflicts checking)

2.   

This should include background preparation (reviewing the file, online searches for information) and physical preparation (notice, attire, location, etc.), and perhaps a mention of back-up equipment (if the attorney has instructed that it be recorded), and ordinary supplies like pens, pencils, notepads, computer, etc.  Also, determining an off-site location, allowing time to get there, and being prepared to find and pay for parking.

3.   

Should mention both the comfort of the interviewee & the professionalism of the interviewer.

4.   

This needs to be discussed in depth, but should emphasize respect.

5.   

Observing non-verbal cues can help determine the level of comfort the witness is feeling, and give some insight into his or her credibility.

6.   

Leading contains the answer, and may taint the witnesses’ memories, while open-ended allows them to provide the information they feel is important or they feel comfortable giving.  It’s usually a good opening gambit, leaving leading questions for depositions or the courtroom.

7.   

The personal/professional dichotomy can be explored.  Where would they draw the line when the client has a legal right, but is morally reprehensible?

8.   

Should mention agents, and that the information was confidential (no third party, generally), and involved legal representation.  NOTE:  A good exercise is having students find out what is protected & privileged in their jurisdiction, and what can be shared to prevent a greater harm.  How great does the harm have to be?  What if it’s a moral wrong, not a legal one?

9.   

Certainly as witnesses, but also as advisors who can help evaluate a case for settlement.

10.   

Avoid frivolous claims, determine the settlement value, estimate the possible court awarded damages, determine if there is enough proof to win a claim.

11.   

Certainly for purposes of evaluating a case for settlement, and to prevent surprise in the courtroom.

12.   

Discuss spoliation, and the intentional alteration or destruction v. the natural degradation of organic evidence, or the destruction of evidence in necessary testing.  Discuss the chain of custody issues, and perhaps show an evidence log.

13.   

Multiple timelines, from different perspectives.  You might want to include a non-chronological narrative in a lecture, and ask students to sort it out and prepare a visually coherent timeline.

14.   

Pull Freedom of Information Act requests from online as hand-outs.

15.   

In addition to litigation or document management software, discuss the types of information that may be needed for a court case.  Demonstrate locating your school or a local shopping center on www.earth.google (this may require administrative permission for a download).  Have students try bablefish (the AltaVista link is very easy) for a translation, find weather conditions for Kenya or Iceland, and, perhaps most importantly, find the location, hours of operation, filing fees and local rules for another jurisdiction’s probate or domestic relations court.

Implied attorney-client relationship

An agreement between attorney and client in which the terms are not stated or expressed by the parties.

Screening interview

an initial contact with a client or prospective client,

Cultural sensitivity

Being aware of the reasons for differences in the way people behave based on religious and ethnic background and belief system

Leading questions

A question asked in a way that prompts the desired answer.

Open-ended questions

Designed to give interviewees an opportunity to tell their story without the limitation of yes-or-no answers.

Narrative opportunity

Created by open-ended questions gives the interviewees a chance to talk about them selves.

Privileged communication

Forms of communication not usable at trial unless waived. Forms of communication are: attorney- client communication, doctor-patient communication, priest-penitent communication, and spousal communications during marriage.

Moral obligation

Based on one’s own conscience or a person’s perceived rules of correct conduct, generally in the person’s own community.

Ethical obligation

Responsibilities of the legal team including those acting on behalf of a supervising attorney, are the responsibilities of the legal profession under the ABA Model Rules of Professional Conduct, including thoroughness in representing a client.

Expert witness

Individuals whose background, education, and experience are such that courts recognize them as qualified to give opinions based on a set of facts.

Restatement of the Law Third, Torts

Negligence requires a breach of duty, strict liability is without fault in cases where the doctrine applies.

Arbitration

Process of resolving disputes between people or groups in a trial.

Tangible evidence

Consists of physical objects that may have caused the injury.

Spoliation of evidence

Failure to preserve evidence has resulted in loss of the case by the plaintiff, and in other cases by the defendant.

Freedom of Information Act

Federal statute designed to open to the public the information possessed by the federal government and its agencies.

Opening Scenario

Questions & Exercises

It was clear to Mrs. Hannah that her role had changed since she started with Mr. Mason as a paralegal. They now had two office separated by forty miles and a two-hour rush hour commute. She had to manage the staff and office administration for both locations from the suburban office. She slowly began to realize that she was the one everyone was depending on to coordinate the activities and operations. After attending an advanced paralegal education seminar, she realized what the speaker was saying when he referred to people in her position as the critical Paralegal Portal in the firm. Her job was: to maintain the relationships with clients, by keeping them informed; facilitate communication between the lawyers, opposing counsel, staff and clients; and insure the litigation team collaborated in an efficient, effective manner. 

            Organizing information on cases and litigation was critical. With the remote operations, each member of the litigation team had to have a method to access critical information at any time from either office or even from the court or home. Ethical issues of conflict of interest were becoming a concern as new clients came in and the practice grew and new consultants and legal staff were hired to work on the cases from other law firms.  It was obvious that she could no longer rely on a paper system; she had to go paperless for the offices and use software to manage the information and cases. If nothing else the time and billing functions were now more essential to the firm’s cash flow needs. Bills had to be accurately prepared and sent out on a regular basis. 

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  How do you use computers to help organize your life?

2. What is an example of a timeline you use?

Scenario Case Study Questions

1.

The memo should include the exponential nature of document generation (each party copying each party with each document), and organizational/access considerations. 

2.

This memo should address the database/search aspects of the programs.

3.

Documents, exhibits, calendars (deadlines should be tickled), witnesses, timelines, etc..

4.

The argument should include the amount of time & expertise needed to design the database v. one that already anticipates the needs of complex litigation, the integrated features (full-text searches, coding, etc.), and the capacity to handle non-text files.

5.

Highlight the organizational features, templates and searching aspects, as well as the variety of integrated functions.

INTRODUCTION TO CASE ORGANIZATION AND MANAGEMENT SOFTWARE

Office management and case management functions overlap.

Early versions of some software programs were individual applications, like calendar creation and maintenance programs.

There is a trend toward integrating all of the desired functions of office and case management and organization into a single master integrated program.

CASE AND PRACTICE MANAGEMENT

Efficient use of a case management system provides all authorized members of the legal team with access to all the case information day or night.

Computer systems today even permit members of the legal team to access the same information from remote locations.

One of the tools in collaborative situations is the individual assessment of the importance of items in the case.

Clients and the courts prefer or even require members of the legal team, such as student law clerks and paralegals, to do work that does not require the skill of the higher billing rate attorney.

A fee for court approval in some courts for work done by an attorney that could have been done by a paralegal will be denied or the fee reduced.

Each member of the team must have the ability to input and use information for the tasks assigned to them.

SPECIALTY APPLICATIONS SOFTWARE PROGRAMS

Specialty applications programs combine different software programs to perform law office case and management functions.

The basic law office management performed are time and billing.

Legal specialty application programs are software programs are designed for specific legal applications like the management of cases and law office operations.

A case management software program offers a convenient method for organizing the parts of a case in a central repository that can be shared by all members of the legal team

CaseMap from LexisNexis CaseSoft is a case management and analysis software tool that acts as a central repository for critical case knowledge.

Integrated software applications like CaseMap allow seamless transfer of data to other programs, such as word processors.

Summation and Concordance are litigation support systems used for searching and retrieving evidence.

Sanction and similar programs are used for trial presentation which may include videotaped depositions, images, and documents.

MANAGING THE CASE

Cases, to the law office, are issues that a client has presented to a legal team to handle and resolve.

A case file in a simple case may consist of only a few pages of information. In a more complex case the case file may consist of thousands of documents with hundreds of people involved.

Manual case management for the legal team may include the creation and use of a case notebook and a trial notebook.

Case management software can be used to organize the cast of characters in a case, the documents, the relevant time table, issues, legal authority, and other desired information.

Different members of the legal team can obtain information and enter it into the case management software.

USING CASE MANAGEMENT SYSTEMS

Complex litigation may involve millions of docu­ments and hundreds of witnesses.

The use of computers for e-mail and document storage by business and govern­ment has caused a massive increase in the number of potential documents that may have to be reviewed, tracked, and made available.

Case management systems permit collaboration among the members of the legal team.

TIMELINE GRAPHICS PROGRAMS

Time lines are chronological listings of the facts of a case frequently presented in a graphic representation.

1.

Should center around scheduling, document management, exhibits, witness information, etc.

2.

It serves as an organization guide and a checklist that everything needed to be asked or produced in trial has been presented, in order to prove the elements of the claim; organizes material that can be used to impeach credibility.

3.

One hard copy version creates three problems:

·        Only one person has access to the master copy at a time

·        It quickly become bulky & burdensome

·        Any changes made on one team member’s version may not necessary show up on the final version (difficulty in conforming documents)

4.

The ESI material permits simultaneous multiple access or remote access, takes up less space, and makes searches easier.

5.

There is some overlap, especially concerning scheduling, contact information & time-keeping.

6.

Office management, case management, litigation support, transcript management, trial presentations.

7.

Hand-stamped, hand-coded/indexed/digested & carried around in boxes.

8.

Interviews, investigation reports, expert reports, research memos, pleadings, trial preparation & discovery documents.

9.

There is a close relationship between law office management and case management. Some of the functions overlap; for example, contact management. Many of the functions are duplicated in many of the specialty applications.

10.

For billing purposes, but also for practice management purposes if hourly billing is not being used – what is a profitable contingent percentage?  What area of practice is costing the firm profits from another area?  Which are leveraged to cover overhead expenses?

11.

Most of the office functions can be divided into the following categories:

Calendar – Keeping personal appointments, case deadlines, statutes of limitations, and important reminder dates.

Contacts – Keeping a current list of names, addresses, phone, e-mail addresses, and other information for clients, opposing counsel, vendors, networking contacts, and other people and firms.

Files – Keeping track of individual case files, projects, client matters, and related documents.

Accounting – Keeping track of time and billing information, client and firm funds and escrow accounts, and preparing bills, reports, and tax returns.

12.

To prevent sanctions being assessed for failing to meet a deadline, and, of course, to prevent a client from losing an important legal right.

13.

Records can show that there has been proper supervision of paralegals, preventing UPL claims.

14.

Case management can be used to organize the cast of characters in a case, the documents, time table, issues, legal authority and other desired information providing the information in an organized fashion.

15.

Notes by any member are automatically integrated into a case file, and it will permit simultaneous or remote access.

16.

Chronological accounts of an event, often from multiple perspectives.

17.

They can visually pinpoint discrepancies between witness accounts & provide a map of events for the jury.

18.

See 15.

19.

See 8.

20.

See 14 & 15.

21.

See 17.

Demonstrative evidence

Physical items such as defective products in a strict liability action or an automobile in a motor vehicle accident, may have to be obtained and preserved for examination by expert witnesses or for use at trial.

Trial notebook

Summary information about the case is maintained in a notebook with tabs for each major activity, party, expert, or element of proof needed.

Paperless office

Everything, in theory, is available on the computer screen.

Specialty application programs

Combine many of the basic functions found in software suites, word processing, database management, spreadsheets, and graphic presentations to perform law office case and litigation management

Sanction

a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court.

Case(s)

Matters, to the law office, are issues that a client has presented to a legal team to handle and resolve

Case management program

Organize the cast of characters in a case, the documents, the relevant time table, issues, legal authority, and other desired information

Time line

Chronological listings of the facts of a case.

Databases

Collection of similar records such as your address book, which has a name, address, city, and phone number for each person in it.

Events

Appointments, tasks, reminders, or things to do that are scheduled for specific dates.

Matters

Refer to any matter, case, file, or project that you need to track.

Documents

Previously saved word processing files, scanned images, pleadings, correspondence, or Internet Web pages.

Time keeping

Includes the recording of all time spent performing activities during the workday.

Opening Scenario

Questions & Exercises

Owen Mason as the senior partner and Mrs. Hannah, his office manager and administrator, were reviewing the expenses trying to find ways to reduce some of the costs of running two offices. With a number of major cases in litigation the cash availability resources were strained. They were spending money on investigations and staff costs that would not be recovered until after cases settled or trial concluded with a positive verdict. With a major case in litigation, the potential fees were high, but they had to survive until then. The traditional libraries maintained at both locations was a major item on the budget, as was the online research costs of subscription services everyone had been trained to use in law school and paralegal school. They concluded they would have to propose, to the other partners, the elimination of as much of the paper-based library as possible. Each of the online legal research services offered a range of plans that allowed access to most of the needed legal research. Free online legal research sites were also used with frequency. The decision to add high-speed Internet access for everyone seemed to be a good decision. Much of the investigative material needed in cases was available online and the internet was becoming a standard method of communication with clients, outside experts, and opposing counsel. 

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  What types of issues would need to be researched for a plaintiff in a

• torts case
• contracts case.

2.  What might a defense legal team need to research?

Scenario Case Study Questions

1.

If the students have access to a paid database, you could pose a research question, such as locating a Supreme Court case, and ask them to research it in both the paid database and a government site, such as the Supreme Court website.  This might provide some material for the memo.  A similar exercise can be done with state statutes, if available through a government site, and contrast that to using a hard copy code with pocket parts and/or a legislative update.  Is the validation easier online?  Is it as or more current?

INTRODUCTION TO ELECTRONIC RESEARCH

Goal of research: Finding information.

Traditional methods: Paper records and books.

ELECTRONIC RESEARCH

Information accessible over the Internet.

·                    Legal Research:

Full-service providers: Provide range of materials including cases, statutes, and regulations; examples Lexis, Loislaw, Westlaw.

Limited-service providers: Offer a limited range of materials, other limitations may include limited range of dates of available cases.

·                    Factual Research

Factual investigation: Determine the facts of a case.

Internet factual research: Using the Internet to obtain items such as aerial photographs, reports, and periodical accounts.

·                    Creating a Research Plan

Set up the research plan.

Write accurate search queries.

Use a checklist to analyze the case.

·                    Electronic Search Engines

Search engine: A program designed to take a word or set of words and search websites.

Free search engines: Examples include Google.com, Ask.com, Yahoo.com, Netscape.com

·                    Law-Related Search Resources

Generally charge a fee except for very limited access.

·                    Online Resources

Availability of information: New sources of information are added daily.

Legal-oriented: Examples include FindLaw.com, Legal Information Institute at Cornell University School of Law.

Non-legal–oriented: One example is the National Institutes of Health – National Library of Medicine website.

·                    Bookmarks and Favorites

Bookmarks and favorites: Lists of frequently used Web addresses that are saved within an Internet browser, called bookmarks by Netscape and favorites by Internet Explorer.

METHODS OF CONDUCTING A SEARCH

·                    Database Searches

Databases are repositories of data requiring a search query.

·                    Conducting a Search

Requires selecting a computer search index and creating a query.

Requires a combination of words and phrases of the appropriate words and legal terms as used in the index by the publisher of the material where the information is stored.

·                    Creating a Computer Search Query

Requires a combination of words and phrases of the appropriate words and legal terms as used in the index by the publisher of the material where the information is stored; most productive searches contain a combination of words.

·                    Using Connectors

Connectors are instructions to the search engine to look for documents containing combinations of words. Connectors include and, or, and not.

UPDATING LEGAL RESEARCH

·                    Use of Current Law

The legal team must always use the most current statutory and case law.

·                    Tools for Updating Legal Research

Electronic methods include the use of Loislaw’s GlobalCite, Westlaw’s KeyCite, VersusLaw’s V.Cite, and LexisNexis’ Shepard’s.

1.

A general question, with lots of different answers, usually involving locating legal or factual resources, evaluating the source for accuracy & currency, and bookmarking reliable sites.

2.

What kind of research?  Legal locates authority, primary or secondary, upon which to base an argument.  Factual locates unknown information or verifies (disputes?) “known facts”.

3.

The book contains several suggestions, but beginning with the most local law school library site is a good way to focus on state-specific information.

4.

Again, there’s a list in the book, although checking the students for their suggestions may bring you new information!

5.

Since it’s counterintuitive, be sure to check that “and” narrows a search, while “or” broadens it.

6.

This can focus on many aspects, but perhaps the reliability of information needs to be stressed, and private v. governmental/educational ones.

7.

Most students are familiar with pocket supplements & Shepardixing, so perhaps this should focus on the difference between a paid database & a government site.  Stress the need to check to see the effective date of the postings.

8.

If possible, run a “natural language” & terms and connectors search for a single case or statute.  Have the students compare.  A comparable exercise is to have them perform a regular Google.com search and then transpose it into the Advanced Google format.

9.

Discuss the time factor of searching from scratch, and good starting pages for a variety of legal searches, like findlaw, cornell, and the local law school and/or bar association.  There may also be a local law librarians’ association that has dozens of helpful links.

Search queries

A combination of appropriate words and terms that identify the information desired

Full-service online providers

Computer research services—Lexis, Loislaw, and Westlaw—provide a broad range of legal materials, including cases, statutes, and regulations.

Limited-service search providers

Specialize in providing cases and limited access to additional items, such as the Code of Federal Regulations

Factual research

Learning all the facts about a case and finding case-related resources.

Search engines

Program designed to take a word or set of words and search websites on the Internet.

Bookmarks

Netscape, Internet browsers has a feature for saving the URL or Internet addresses of frequently used sites.

Favorites

Internet Explorer, Internet browser has a feature for saving the URL or Internet addresses of frequently used sites.

Database

Repository of all kinds of information or data.

Full-text retrieval

The search you create searches this index. VersusLaw retrieval method that searches every word except "stop words.

Stop words

Words that are used too commonly in documents to be used in a search, such as the, not, of, and and.

Connectors

Instructions to the search engine to look for documents containing combinations of words.

Precedent

The American legal system concept of stare decisis provides that we use prior case law, but change the law as American society changes.

Shepardizing

The process of using Shepard's to check legal citations came to be called

Opening Scenario

Questions & Exercises

The law firm of Mason, Marshall, and Benjamin had divided up the work on the personal injury case so that both offices could be as efficient as possible. Ethan Benjamin, and his associate Cary, was heading up the legal team concerned with proving the defendants were negligent. Owen Mason and Ariel Marshall took on the task of proving the extent of the injuries and the damages issues. The initial problem was proving the cause of action and avoiding a motion for summary judgment. If the case got past the proof of negligent conduct then showing the extent of the injuries and getting as much sympathy from the jury was the goal on the way to a major monetary verdict. Emily, the paralegal in the suburban office, expressed some concerns about the graphic nature of the photographs, rhetorically asking if they might bias the jury and not get sympathy. She had shared with her sister Caitlin, the paralegal working on the negligence side of the case, the evidence her team had and was thinking of using. It was the disagreement on the impact of the photos that raised the question of admissibility. The lawyers had to decide on strategy.  

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  What are the trial preparation duties of a litigation paralegal with regards to evidence?

2. What duties might a paralegal have in the courtroom with regards to evidence?

INTRODUCTION TO EVIDENCE

Evidence includes testimony, documents, and tangible things that tend to prove or disprove a fact. Only admissible evidence may be offered in a trial. 

EVIDENCE AND TRIAL STRATEGY

Trial strategy requires planning the presentation of the case including an evaluation of admissible evidence and deciding which particular pieces will have the most positive impact on the jury.

INTRODUCTION TO THE RULES OF EVIDENCE

Evidence in federal cases is determined under the Federal Rules of Evidence.

ADMISSIBILITY OF EVIDENCE

To be admissible, evidence must be relevant, tending to prove the existence of facts that are important to the resolution of a case, reliable, trustworthy, and real, not based on imaginary or hypothetical situations.

To be admissible, evidence must also have probative value that outweighs any prejudicial value the evidence may have, such as pictures that are particularly bloody or gory.

Some evidence is not admissible because it tends to prejudice the decision of the jury in situations in which the social benefit accomplished by the action outweighs the value, such as making repairs, paying medical expenses, and having liability insurance.

TYPES OF EVIDENCE

Evidence includes testimony of witnesses, physical objects, and demonstrative evidence such as photographs, models, and display boards.

Witness testimony is given in an organized manner with the party calling the witness asking the questions first on direct examination and the opposing party then cross-examining the witness in an attempt to raise questions about the credibility of the witness. Redirect examination follows the cross-examination to allow a party calling the witness to rehabilitate the witness subject to recross-examination if any new areas of testimony are offered.

Lay witnesses present testimony about personal knowledge and are sometimes called eyewitnesses because of what they have observed as it relates to the case.  Anyone may be called as a lay witness who has in some way observed, heard, or otherwise sensed some fact relevant to the case.

Expert witnesses are used to guide the finders of fact in areas that are beyond the usual expertise or knowledge of the finders of fact such as the judge or jury.

TANGIBLE EVIDENCE

Tangible evidence refers to the physical items that may be presented at trial, including writings, recordings, photographs, X-rays, and other electronic recording or the compilations.

Generally, to be offered, documentary evidence must be the original writing, recording, or photograph under the best evidence rule. Where the original documents are not available, copies may be used under appropriate authentication such as use of documents which are self-authenticating, like public documents or certified copies of official business records. Physical evidence is those tangible items that give rise to the cause of action.  Precautions to preserve the chain of custody and prevent spoliation are required.

THE HEARSAY RULE

Hearsay is an out-of-court statement offered for the truth of the statement in court that was made by someone not in the court. Hearsay is generally not admissible because it is not reliable, and the party who made the statement is not available to be examined or cross-examined. Some hearsay is admissible, where the utterance or statement was made under circumstances, which tends to be cases where people tell the truth: an excited utterance made after a startling event; statements made to a doctor or medical provider for treatment; or documents, which are created in the regular course of business, by public officials or government agencies, documents in the form of family or ancient records.

RAISING OBJECTIONS

Unless objections are made in trial, contemporaneous with the offer of evidence, the objection to the introduction is waived and may not be raised in the future.

1.

Evidence tends to prove or disprove a legal claim.  Admissible evidence has been limited by public policy, since using some evidence tends to discourage behavior society considers beneficial, such as repairing dangerous conditions, or paying medical bills.

2.

Facts generally refer to verifiable events, present or past.

3.

Since each element must be proven, each element requires either evidence or an admission in order to meet the minimum, prima facie case requirements in order to stay in court & ultimately win the case.

4.

Generally, by case law within the jurisdiction.

5.

Relevant, reliable, real

6.

Having a tendency to prove or disprove a claim.

7.

Credibility relies upon consistency, detail & perspective (the ability to observe what happened, and relate it coherently).  Expert witness credibility largely relies on credentials.

8.

Things.

9.

How far it goes towards proving a point (lower value = less useful).

10.

See 1.

11.

See 1.

12.

See 1.

13.

Deep pockets = larger judgments, if it serves to relieve the jury’s concern about irrevocably harming the defendant with a large judgment.

14.

To impress upon them the solemnity of the undertaking, and to invoke perjury penalties.

15.

Plaintiffs go first, since, if they fail to prove their case, the defense need not go forth.

16.

The other side’s examination of a witness, limited to the scope of direct exam, but permitting the use of leading questions.

17.

To rehabilitate the witness

18.

Should mention the process of qualifying an expert.

19.

In addition to educating the legal team & providing proof of a claim, the need to make complex scientific information accessible to a jury should be mentioned.

20.

When describing something of which they have personal knowledge, witnesses can offer some types of opinions --  the car was going fast, the defendant appeared angry.

21.

Usually only when the witness is unavailable.  “Talking heads” are very boring.

22.

All part of tracking “leads” for investigation, corroboration.

23.

To undermine the weight the jury gives that information.

24.

See the chart in the book.

25.

To demonstrate the reputation for a particular trait, not to prove he or she is a good person.

26.

Encouraged offering authentic, not doctored, evidence.  QUERY:  What is an original document of an ether-based communication?

27.

Unless the authenticity of a document is questioned, copies are generally accepted.

28.

Government records are the broad category – the is no presumption that the record-keeper had any intent to falsify.

29.

If destruction was intentional, or even reckless, the presumption would be that that evidence was harmful to the spoliator.

30.

Tampering can be claimed, and the chain of evidence permits testimony from each link.

31.

An out-of-court statement, offered to prove the truth of the matter asserted.

32.

Generally, most anything that would not have been prepared in self-serving anticipation of litigation.

33.

“Use it, or lose it.”  Without an objection on the record, the issue is considered waived.

Evidence

Includes testimony, documents and tangible things that tend to prove or disprove a fact.

Admissible evidence

Which is relevant to the case and which the court will allow to be presented.

Fact

Event or occurrence.

Federal rules evidence

Enacted in 1975, the purposes of rules of evidence are to promote fairness in the courtroom, eliminate unnecessary expense and delay, and ensure that proceedings are justly decided

Relevant evidence

Tends to prove the existence of facts that are important to the resolution of a case.

Reliable evidence

That which is trustworthy.

Physical evidence

any evidence introduced in a trial in the form of a physical object, intended to prove a fact in issue based on its demonstrable physical characteristics.

Real evidence

Is an object that is pertinent to the issues in the lawsuit. 

Probative value

Evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant.

Prejudice

A forejudgment; bias; partiality; preconceived opinion. A leaning toward one side of a cause for some reason other than a conviction of its justice.

Inadmissible evidence

Evidence is relevant, reliable and real but may mislead or confuse the jury, create some emotional reaction, or result in unfair prejudice.

Opening Scenario

Questions & Exercises

The partners, Mr. Mason, Ms. Marshall, and Mr. Benjamin, were having their regular monthly meeting in the suburban office. In addition to routine management issues they regularly reviewed the status of the various cases that they were handling. A common point of discussion with regard to the various cases they were handling had become whether they should attempt to settle the cases early in the handling of the matter. One of the issues was their limited resources and available personnel. It was obviously less costly to settle cases than to prepare them for trial and ultimately try them in court. They were all in agreement that they owed a duty to their clients to attain the best possible settlements and not allow their own personal financial and personnel constraints dictate how a case would be handled.

            Having had the discussion, which they had had many times before, they turned to a review of the biggest case they currently had involving a school bus in which a number of children were injured. The liability seemed clear both to them, and apparently to the attorneys representing the defendants in the case. In making preliminary offers of settlement the defense attorneys raised the issue of the impact on the children if they were forced to relive the accident and their injuries in open court. Balancing the ability to settle the case for a fair and reasonable amount against the potential for a full trial, they felt they needed to investigate alternatives to going to trial while at the same time rejecting what they deemed to be inadequate offers to settle the case.

Pre-Chapter Review

Based on your students’ current level of knowledge:

1.  When does a case settle?

2.  What is the difference between arbitration & mediation?

INTRODUCTION TO SETTLEMENTS AND ALTERNATIVE DISPUTE RESOLUTION

Most cases are settled in an informal negotiation or through the use of alternative dispute resolution (ADR).

SETTLEMENTS

Settlements eliminate the expense, both monetary and psychological, and the uncertainty of trial. Judges favor settlements before trial and frequently help to negotiate a settlement between the parties.

A settlement may occur at any time prior to or after the initiation of the lawsuit.

There is no single method of negotiation used and therefore every case must be properly prepared for trial if a settlement cannot be reached.

DAMAGES

Special damages are those damages that can be easily calculated and include expenses for out-of-pocket costs associated with the injury and lost wages.

General damages are losses, non-economic in nature, that the law presumes follows from the type of injuries sustained and are not subject to easy calculation.

Liability is the legal responsibility for the plaintiff's damages. Without proof of liability there can be no recovery of damages.

SETTLEMENT DOCUMENTS

Settlement letters are informal demands to settle a case made by letter.

Seller brochures are more formal presentations detailing the facts of the case, the injuries sustained, the damages and a demand for settlement.

Settlement brochures will frequently contain photographs, day-in-the-life representations of how the injury has affected the plaintiff either in still photographs or in video, and an evaluation of the case, which is the basis for the demand to settle.

ETHICAL CONSIDERATIONS

Only the attorney may make a recommendation to the client with regard to settlement. Paralegals must have specific authorization for any actions taken during the negotiation process.

TERMS OF A SETTLEMENT

A settlement is a contract between the parties to resolve or end the lawsuit.

Plaintiffs frequently demand an amount substantially higher than they are willing to accept in settlement, and defendants’ offers are substantially lower than they are willing to pay to settle the case. Some of negotiation involves agreeing to a number somewhere between the original offer and the original demand.

Occasionally the settlement may be non-monetary, and involve the performance or refraining from performing some act.

Settlements involving minors and other incapacitated persons may need to be approved by the court even when settled through adult court methods.

Releases are documents used to settle cases where one or both parties agrees to release the other from any and all claims arising from the transaction or occurrence. They may be individual or mutual releases.

Cases settled prior to suit frequently have a confidentiality clause included, in which the parties agree to keep the terms of the dispute and settlement confidential.

Where a case has been settled after the institution of suit, it must be marked as settled in the court records. In the federal courts, this is done by filing a notice of dismissal or a stipulation signed by all the parties or by the entry of a consent judgment. A notice of dismissal may be used where no answer has been filed to the complaint and only the plaintiff need sign. A stipulation of dismissal may be used where the parties desire the details not be made public. A consent judgment may be entered upon agreement of the defendant giving the plaintiff a priority standing against others to maintain judgments against the same defendant.

ALTERNATIVE DISPUTE RESOLUTION

Alternative dispute resolution (ADR) is a method of resolving disputes without using the traditional court system. Cases are heard by independent, neutral parties.

Arbitration involves use of a neutral third party or parties who hear the case and make a decision, called an award.

Mediation is a form of negotiation where the parties to the dispute use a neutral third party to assist them in reaching a settlement.

Mini-trial is a voluntary private proceeding where an abridged version of the case is presented to representatives of the parties who have authority to settle the case.

Neutral fact-finding involves a third party hired to investigate technical facts and report their findings.

In some jurisdictions the courts impose ADR in the form of arbitration, which is usually mandatory though the parties have the right to appeal.

Most ADR is done privately. The largest private organization is the American Arbitration Association.

The Federal Arbitration Act provides that arbitration agreements in commercial contracts are valid, irrevocable, and enforceable except under very limited circumstances. Many states have adopted the Uniform Arbitration Act, which is similar to the Federal Arbitration Act at the state level.

1.

Settlement, either at the time of the incident, or after some contact with insurance companies, or after a demand letter is sent.  ADR can be mentioned for some kinds of disputes.  NOTE: on-line dispute resolution sites are interesting for students to visit.  They may be able to actually assist in mediating a dispute!

2.

Establishing a settlement range: could introduce the concept of BATNA, or Best Alternative to a Negotiated Agreement, which places a value on the cost of going to trial.

3.

Can be time & money, but may be in ongoing relationships, such as between a supplier & manufacturer in a contract dispute.

4.

Could be shying away from a public record, in addition to the usual time & money rationale.

5.

Discovery should prevent much surprise, but there are always unexpected responses, credibility issues, jury appeal, and the occasional unexpected judicial ruling.

6.

The client, with the advice of the attorney.

7.

See #4.

8.

Not unless liability is provable, and there are no policy exceptions.

9.

Judicial economy – time & money.

10.

Speed, privacy, reduced costs, and a firm’s reputation for bargaining in good faith, only pursuing legitimate claims.

11.

Work towards the middle.

12.

Documentable damages.

13.

Pain & suffering are examples of these, more speculative damages.

14.

A cost/benefit analysis helps identify the costs & probably recovery.

15.

Lost profits, specific performance, etc.

16.

No duty to “make whole” if there is no legal responsibility for the injury.

17.

The settlement letter may be a simple demand with cursory support, while the settlement brochure will have detailed damages & causation support.

18.

This helps determine the before/after changes in order to determine what is needed to make the π whole.

19.

None.  The paralegal assists the attorney in preparing for settlement, and may act as a conduit of information to the client, but cannot advise.

20.

A confidentiality clause may be written into the agreement.

21.

Blocks further suits based on possible counterclaims.

22.

Dismissal, release, consent judgments.

23.

The priority interest it creates in Δ’s property

24.

Should look at the two tracks: final settlement (voluntary or binding arbitration, for instance) or settlement encouragement (mediation or Early Neutral Evaluation, for instance).

25.

The third-party decision-maker renders a final decision & award.  The UAA makes most bargained-for arbitration agreements enforceable. 

Settlements

Eliminate the expense and uncertainty of trial.

Dockets

A record of cases that are filed with the court. 

Reserve

An amount the companies must show as a contingent or potential liability on their corporate financial statements

Settlement negotiations

Process in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company's insured defendant) and the parties agree to terms of settlement.

Damages

Paralegal may assist with identifying and itemizing all of damages suffered by plaintiff.

Special damages

Are readily calculated such as lost wages, medical bills and the cost of hiring a cleaning service to perform the plaintiff’s regular household duties.

General damages

Those that do not need to be specially claimed or proven.

Preliminary value

The total of the special and estimated general damages.

Liability

Legal responsibility for the plaintiff’s damages.

Settlement brochure

Contains the same information as the demand letter presented in a different format.

Attorney work product

Material prepared for litigation.

Work product doctrine

Rules of discovery will ultimately require the disclosure of documents, photographs, and witnesses’ statements. The legal team’s legal research and trial strategy are not discoverable.

Settlement demand letter

States a legal claim which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breach of contract, or for a legal wrong.

Settlement offers

A communication from one party to the other suggesting a settlement - an agreement to end the lawsuit before a judgment is rendered.

Release

Document, which is signed by the plaintiff in which the plaintiff states that the defendant is released from all possible claims arising out of a certain contract, accident, or other occurrence in exchange for the payment of a sum of money.

Mutual release

With both the plaintiff and defendant agreeing to release each other from any and all claims arising from the transaction or occurrence that gave rise to the dispute.

Notice of dismissal

Used when no answer to the complaint was filed, and only the plaintiff signs the notice of dismissal.

Stipulation

An agreement or concession made by parties in a judicial proceeding (or by their attorneys) relating to the business before the court; must be in writing unless they are part of the court record

Consent judgment

The defendant agrees to a judgment being entered on the court docket for a particular sum. The consent judgment might be used where the agreed sum is expected to be paid out over an extended period of time.

Alternative dispute resolution (ADR)

Alternative to resolution of disputes using the traditional court system.

Arbitration

Perhaps the most well- known ADR technique and generally denotes submission of a dispute to a third-party for binding or non-binding resolution after a hearing in which each side presents evidence and argument of counsel.

Mediation

Non-binding structured process in which the mediator helps the participants reach a negotiated settlement of their differences.

Mini-trial

Form of non-binding settlement proceeding developed to resolve disputes between business entities.

Neutral Fact finding

ADR technique developed by the courts -- notably the United States District Courts for the Southern and Northern Districts of California -- to assist parties in settling their cases early on in the litigation.

Private ADR

Many contracts for consumer goods, real estate sales, cell phone service, or cruise line tickets have a clause that requires disputes be resolved through arbitration, frequently binding arbitration.

American Arbitration Association

The AAA is a private nonprofit organization providing lists of potential arbitrators for the parties to select from and a set of rules for conducting the private arbitration.

Federal Arbitration Act

Provides that arbitration agreements in commercial contracts are valid, irrevocable, and enforceable unless some legal or equitable (fraud, duress) grounds exist to invalidate them.

Uniform Arbitration Act

Similar to the Federal Arbitration Act. The Act describes the procedures that must be followed for arbitration to be initiated, how the panel of arbitrators is to be selected, and the procedures for conducting arbitration hearings.