Civil Procedure & Litigation - A Practical Approach (Paralegal) PDF

CIVIL PROCEDURE
AND LITIGATION
Jack S. Emery
Linda L. Edwards
J. Stanely Edwards
WEST LEGAL STUDIES

Thomson Learning
CIVIL PROCEDURE
AND LITIGATION
T h e We s t L e g a l S t u d i e s S e r i e s
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CIVIL PROCEDURE
AND LITIGATION
Jack S. Emery
Linda L. Edwards
J. Stanley Edwards
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Library of Congress Cataloging-in-Publication Data

Emery, Jack S.
Civil procedure and litigation: a practical approach / Jack S. Emery, Linda L. Edwards,
J. Stanley Edwards.
p. cm.
Includes bibliographical references and index.
ISBN 0-314-12636-8
1. Civil procedure—United States. 2. Legal assistants—United States—Handbooks,
manuals, etc. I. Edwards, Linda L. II. Edwards, J. Stanley. III. Title.
KF8841 .E54 2000

347.73’5—dc21
99-057371
PREFACE
This book is directed to paralegal students striving to understand the civil liti-
gation process and the rules that guide that process. It is broad enough in scope
and detailed enough in coverage to be used as either an introductory civil pro-
cedures text or as a more advanced civil litigation text. Enough material is con-
tained in this book to fuel a two-semester course, but it is organized in such a
manner that it could be used in a one-semester course. Because workshops can
be used or omitted at the discretion of the instructor and the chapters them-
selves can be used as either a review or as an overview of the litigation process,
the text can be adapted to the needs of the class and the instructor.
REASON FOR THE DEVELOPMENT OF THIS TEXT

The impetus behind the creation of this text was the desire to provide stu-
dents with the tools they would need when they began their work in the para-
legal field. Practicing paralegals are expected to have a working knowledge of
the procedural rules and customs in their jurisdiction. Unfortunately, students
are often poorly equipped to engage in the practical realities of paralegal prac-
tice when they graduate. Having been thoroughly indoctrinated in legal phi-
losophy, principle, and terminology, they are typically bereft of any hands-on
experience in the preparation of legal documents or the handling of legal pa-
perwork. This book is designed to remedy that deficiency.
Another problem inherent in the writing of legal procedures texts is that
every jurisdiction has its own set of procedural rules. Even those states that have
adopted the Federal Rules of Civil Procedure have modified those rules to some
extent and have adopted their own formatting and organizational requirements
as well as other customs that dictate how documents are to be prepared and filed
and how legal processes are to be conducted. Instead of simply adhering to the
Federal Rules (which most texts do), we use the Federal Rules as a model and
then provide prompts throughout the text, reminding the instructor to talk about
the applicable local rules and norms. Space is allocated throughout the text so
students can write in those rules and easily reference them in the future.
Preliminary reviews by faculty and responses from students who have used
parts of the text attest to its uniqueness and usefulness. Students who have used
the workshops to assist them in fulfilling assignments have consistently com-
mented that they wished all their books provided them with such fail-safe in-
structions. The degree of student experience does not seem to matter. Both be-
ginning and advanced students have benefited from using the workshops.
ORGANIZATION OF THIS TEXT

This text is organized in a unique fashion. The first eight chapters are devoted
to a sweeping overview of the civil litigation process. Terminology is introduced
and basic concepts are explained. Following the chapters are nineteen work-
shops, each of which is dedicated to an in-depth exploration of a specific sub-
ject, such as the preparation of a motion, the drafting of a complaint, the serv-
ing of court papers, or the drafting of a response to a request for discovery. Each
vi PREFACE
workshop contains a set of step-by-step instructions guiding the student

through the task and explaining the reason for each step. These universal in-
structions are then applied to a specific fact situation, allowing the student to
experience each step in the context of a concrete fact pattern. Each workshop
closes with a “Learning by Doing” exercise that challenges the student to follow
the step-by-step instructions using different facts.
Flexibility is the credo of this text. In that vein, the workshops can be used
in any order and in any fashion that meets the needs of the class and the in-
structor. Some instructors may prefer to go through all eight chapters, pro-
viding students with a general knowledge of the litigation process as a whole,
before delving into the workshops. Those who are using the text in a more ad-
vanced litigation class may want to use the chapters for review only and focus
on the workshops for the bulk of the class. If time is limited, only selected
workshops may be used, allowing students to develop skills in performing par-
ticular tasks and omitting other tasks for future classes. As an aid to instruc-
tors, “Workshop Alerts” are provided at the end of most chapters, letting in-
structors know which workshops most closely correlate with each chapter.
Additionally, the Instructor’s Manual has a suggested lecture outline for each
chapter; this outline indicates at what point in the chapter the instructor may
want to introduce a particular workshop.
UNIQUE FEATURES
In addition to its distinctive overall design, this text has many other unique
features designed to help students assimilate and apply information:
■ Intriguing hypothetical situation that links each chapter (beginning with
Chapter 3) with the other chapters and helps put the subject matter of
each chapter in a factual context
■ Local Notes that prompt instructor and students to consider the rele-
vant rules and customs in their jurisdiction
■ Ethical Etiquette features at the end of each chapter that highlight specific
ethical considerations that students are likely to encounter on the job
■ Practice Pointers at the end of each chapter and workshop that provide
students with practical tips they will find advantageous when they en-
ter the work world
■ Techno Tips at the end of each chapter and workshop that inform stu-
dents about technological tools and alert them to technical considera-
tions related to law practice
■ Putting It into Practice questions sprinkled throughout the chapters
that challenge students to apply the information they have just read
■ Litigation Lingo exercises in the form of crossword puzzles, word
scrambles, and other game-like formats that allow students to practice
their recollection and spelling of key terms
■ Litigation Logistics that require students to look up the procedural rules
in their jurisdiction governing hypothetical situations
■ Procedural Ponderables that challenge students to apply the concepts
they have learned to various fact patterns and then to go beyond the
text and consider policy questions
■ Answers to the Practice Exam, Litigation Lingo, and Litigation Logistics
sections in Appendix A, allowing students immediate feedback
■ A glossary and a copy of the most recent Federal Rules of Civil Proce-
dure in Appendix B
In addition, the customary features of chapter objectives, summary, key
terms, review questions, and a practice exam are provided for each chapter.
PREFACE vii
HOW TO USE THIS TEXT

Because this text is designed to be as flexible as possible, instructors can use
it in a number of different ways. We offer you four options:
OPTION ONE
Cover the material in each chapter sequentially without reference to the
workshops. In each chapter the students can:
** Respond to the Putting It into Practice questions found throughout
each chapter
** Answer the Review Questions to test knowledge of basic concepts
** Take the Practice Exam (consisting of multiple choice, fill-in-the-
blank, and true–false questions)
** Do the Litigation Lingo and Litigation Logistics exercises to prac-
tice vocabulary and apply the procedural rules
** Write out responses to the Procedural Ponderables to apply
chapter content and to explore questions unanswered in the
chapter
After going over all the chapters, work with the workshops on a discre-
tionary basis. Students using this approach will have a basic understanding of
the whole process before delving into the details of specific tasks. They will,
in other words, have the big picture before being asked to master the details.
Unless the class is a two-semester course, however, they will not realistically
be able to cover all of the workshops.
OPTION TWO
Have the students read all of the chapters as a review. To ensure that
they have mastered the major concepts and basic vocabulary, have them
answer the review questions, do the Litigation Lingo, and take the Practice
Exam. They can compare their answers with those in Appendix A. Class
time can then be spent going over each of the workshops in depth. Al-
though the workshops can be completed in any order, their order of pres-
entation in the book correlates with the typical sequencing of the litigation
process.
This option works best with advanced students who have already had
classes in civil procedures and are now ready to develop their practical skills
in document preparation and management.
OPTION THREE
Intersperse coverage of the workshops with the chapters. The workshops
are designed to be able to be used independently or in conjunction with the
chapters but if they are used concurrently, they correlate as follows:
CHAPTER ONE INTRODUCTION
No Workshops
CHAPTER TWO COURTS AND FILINGS
No Workshops
CHAPTER THREE PREFILING PREPARATION AND PLEADINGS
Workshop 1 Claims and Their Elements
Workshop 2 Choosing a Court: Jurisdiction, Venue, and Choice of Law
Workshop 3 Working Up a Case for Suit
Workshop 4 Court Papers
Workshop 5 Drafting Pleadings: Complaints
Workshop 6 Serving the Complaint
Workshop 7 Paper Flow in a Litigation Office: Service, Docketing,
and Deadlines
Workshop 8 Drafting Pleadings: Responsive Pleadings
Workshop 19 Ethics in Litigation
viii PREFACE
CHAPTER FOUR DISCOVERY

Workshop 9 Document Discovery
Workshop 10 Written Discovery
Workshop 11 Responding to Discovery Requests
Workshop 12 Disclosure Rules and Limitations on Discovery
Workshop 13 Depositions and Working with Witnesses
Workshop 15 Discovery Motions
CHAPTER FIVE MOTIONS
Workshop 14 How to Present a Motion
Workshop 16 Motions for Summary Judgment, Motions to Dismiss,
and Other Tactical Motions
CHAPTER SIX ALTERNATIVE DISPUTE RESOLUTION
No Workshops
CHAPTER SEVEN PRETRIAL PRACTICE, TRIALS, AND JUDGMENTS
Workshop 17 How to Prepare for Trial
CHAPTER EIGHT JUDGMENT COLLECTION AND APPEAL
Workshop 18 How to Obtain a Judgment
This option allows students to develop their practical skills as they are learn-
ing the basic legal concepts and vocabulary. Instead of simply reading about
pleadings, for example, they have the experience of preparing a complaint and an
answer. The concept of service of process becomes more real as they learn to pre-
pare a summons and calculate the time during which service must be completed.
Doing all of the chapters and workshops will require at least two semesters.
OPTION FOUR
Intersperse the chapters with the workshops but use only certain work-
shops. This allows students to combine their assimilation of legal concepts
and vocabulary with a practical application of those concepts. Choosing spe-
cific workshops allows instructors to adapt the text to limited timelines.
ANCILLARY MATERIALS
The Instructor’s Manual includes these elements:
■ Suggested lecture outlines, which indicate specific points in the chap-
ters to insert the appropriate workshops
■ Classroom activities
■ Answers to the review questions, Procedural Ponderables, and Learning
by Doing exercises in the workshops
■ Transparency masters that correlate with the chapters and workshops
are also included
■ Test bank
In addition, the following support material is available:
■ Transparencies in PDF format are provided on CD-ROM
■ Computerized test bank. The test bank found in the Instructor’s Manual
is also offered in a computerized format on CD-ROM. The platforms sup-
ported include Windows 3.1 and 95, Windows NT, and Macintosh
■ Web page. Come visit this book’s specific web page at www.westlegal
studies.com where you will find sample materials, hot links, and text-
book updates as well as much more information on many other West Le-
gal Studies products
PREFACE ix
■ Westlaw. West’s on-line computerized legal research system offers stu-

dents hands-on experience with a system commonly used in law of-
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■ West’s paralegal video library. Adopters of 1–99 paralegal texts may se-
lect one video. Adopters of 100–199 paralegal texts may select two
videos. Adopters of 200–299 texts may select three videos
■ “The Drama of the Law II” paralegal issues video. Five separate dramati-
zations intended to stimulate classroom discussion about issues and
problems faced by paralegals on the job. Dramatizations cover intake in-
terviews, client confidentiality, UPL, etc
■ “The Making of a Case” video. A case is followed from the court system
to the law library shelf. Provides introduction to significant aspects of
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■ “Arguments to the U.S. Supreme Court” video. Accomplished lawyers, pro-
fessors and judges play various roles as the case of the F.T.C. v. The
American Tobacco Company is argued before a mock U.S. Supreme Court
ACKNOWLEDGMENTS
We gratefully acknowledge the feedback we have received from the hundreds
of students we have had the privilege of working with over the years. This text
reflects our understanding of the learning process as they have demonstrated
it to us.
Writing this text has at times been an intimidating task. Having launched
into uncharted waters from an organizational and design standpoint, we have
sometimes found reason to defer this project to other tasks with which we felt
more comfortable. We owe thanks to Rhonda Dearborn, developmental editor,
for her tenacious support. Were it not for her persistent “nipping at our heels”
this book might never have become a reality. We are also grateful to Joan Gill,
editor, for her enthusiastic support of this somewhat unprecedented ap-
proach to teaching civil procedures and litigation.
Finally, we very much relied on the feedback and insights from our unsung
assistants, the reviewers. Their candor and eagerness to offer suggestions
helped make this book as conducive as possible to clear and efficient learning.
We acknowledge them now individually:
C. Suzanne Bailey, Western Illinois University, IL
Jeptha Clemens, Northwest Mississippi Community College, MS
Frances Coles, CSU
Richard J. Dimanin, Madonna University, MI
Paula D. Emmons, Watterson College, CA
Mary Kubicheck, Casper College, WY
Marion MacIntyre, Harrisburg Area Community College, PA
Kathryn L. Myers, Saint Mary-of-the-Woods College, IN
Larry Nordick, Moorehead State University, MN
FEEDBACK
We would very much like to receive your comments, suggestions, and ques-
tions in reference to the text, especially in regards to its unique approach to
presenting the material. Please feel free to contact us.
ABOUT THE AUTHORS
JACK S. EMERY, J.D. Jack Emery practiced as a litigation attorney in

Phoenix, Arizona for nearly twenty years before taking up a second career as
a community college professor. He graduated first in his class from the Arizona
State University College of Law. He has a bachelor’s degree in civil engineering
and a master’s degree in biomedical engineering in addition to his law degree.
Jack is a licensed patent attorney. Currently, he lives in the mountains of
southeastern Arizona and teaches computer programming at Cochise College.
J. STANLEY EDWARDS, J.D. Stan has been a sole practitioner for over 22
years after a brief stint as associate patent counsel for Honeywell, Inc. He has
offices in Cave Creek and Springerville, Arizona. Stan’s initial career was as a
digital design engineer with a bachelor’s degree in electrical engineering. He
has a general litigation practice and has tried more than 20 cases to juries. Stan
is a judge pro tempore for the Maricopa County Superior Court and a certified
arbitrator for the U.S. District Court for Arizona. Stan has twice been named vol-
unteer lawyer of the month by the Maricopa County Bar Association.
LINDA L. EDWARDS, J.D., Ph.D. The author of two other books with ITP, Tort
Law for Legal Assistants and Practical Case Analysis, Dr. Edwards is an attorney
in Phoenix, Arizona. She has been an instructor in the Justice and Legal Stud-
ies Department at Phoenix College for 24 years. She has served as both pro-
gram director of the Legal Assisting Program and as chairperson of the de-
partment. During her tenure as program director she was involved in getting
the Legal Assisting program approved by the ABA. She is responsible for cre-
ating dozens of new classes in both legal assisting and criminal justice and is
known for her innovations in the field of education. An individual of many in-
terests, she has a bachelor’s degree in chemistry, a master’s degree in crimi-
nal justice, and a Ph.D. in holistic healing; she is also a certified homeopath,
Bowen therapist, and Edu-K practitioner.
DEDICATION
I dedicate this book to my wife Neble and son Jack, from whom were stolen the hours
necessary to write it.
Jack Emery
We dedicate this book to our family members, Bill, Ester, Audrey, and Louis, without
whose support and patience we could not have completed this project.
Stan and Linda Edwards
CONTENTS
CHAPTER 1 Administrative Detail 31

Specialty Cases 33
INTRODUCTION 1
ROLE OF THE PARALEGAL 34
ETHICAL ETIQUETTE 34
OBJECTIVES 1
PRACTICE POINTERS 35
BACKGROUND 2
TECHNO TIP 36
WHAT IS CIVIL PROCEDURE AND WHY SHOULD
SUMMARY 36
YOU STUDY IT? 3
KEY TERMS 37
The Importance of Procedure 3
REVIEW QUESTIONS 37
TERMINOLOGY 4
PRACTICE EXAM 38
THE MAIN PHASES OF A LAWSUIT 9
LITIGATION LINGO 40
Pre-Suit Phase 9
LITIGATION LOGISTICS 41
Preparation Phase 9
PROCEDURAL PONDERABLES 41
Trial Phase 10
Post-Judgment Phase 10
ALTERNATIVE PATHS 11
ROLE OF THE PARALEGAL 11 CHAPTER 3
ETHICAL ETIQUETTE 11
ROAD MAP OF A LAWSUIT: PREFILING
TECHNO TIP 13
PREPARATION AND PLEADINGS 43
SUMMARY 13
OBJECTIVES 43
KEY TERMS 14
THE PHASES OF A LAWSUIT 45
REVIEW QUESTIONS 14
PREFILING PHASE 46
PRACTICE EXAM 15
Investigation and Fact Gathering 47
LITIGATION LINGO 17
Strategic Decision Making 48
Prerequisites to Suit 49
Positioning the Case 50
Settlement Negotiations 50
Other Considerations 50
CHAPTER 2
Role of the Paralegal 51
COURTS AND FILINGS 19 SUIT PREPARATION PHASE: PLEADINGS 52
Complaint 52
OBJECTIVES 19 Filing and Service of Process 52
INTRODUCTION 20 Answer 56
WHAT ARE COURTS AND WHERE DO THEY COME Filing and Service of Answer 57
FROM? 20 Reply 59
Federal Courts 22 Choice of Forum 59
Procedure in Appellate Courts 23 Joinder of Issue 59
State Courts 25 Role of the Paralegal 60
ADMINISTRATION 25 ETHICAL ETIQUETTE 60
Special Courts 28 PRACTICE POINTERS 61
City and Small Claims Court 29 TECHNO TIP 62
WHICH COURT DO I SUE IN? 29 SUMMARY 62
HOW DO I FIND OUT WHAT PROCEDURES APPLY? 30 KEY TERMS 63
General Questions of Federal Procedure 30 WORKSHOP ALERT 63
State Law Procedure Questions 31 REVIEW QUESTIONS 64
xii CONTENTS
PRACTICE EXAM 64 REVIEW QUESTIONS 108

LITIGATION LINGO 67 PRACTICE EXAM 109
LITIGATION LOGISTICS 68 LITIGATION LINGO 112
PROCEDURAL PONDERABLES 69 LITIGATION LOGISTICS 114
CHAPTER 4
CHAPTER 6
ROAD MAP OF A LAWSUIT: DISCOVERY 71
ALTERNATIVE DISPUTE RESOLUTION 115
OBJECTIVES 71
THE INVISIBLE MIDDLE 72 OBJECTIVES 115
DISCOVERY 73 WHAT IS ADR? 117
Depositions 75 HISTORY OF ADR 117
Written Interrogatories 77 ARBITRATION 118
Request for Production of Documents and Things 77 Forms of Arbitration 119
Requests for Admissions 79 Selection of Arbitrators 119
Discovery of Expert Opinion 80 Arbitration Process 120
Independent Medical Examinations 80 Role of the Paralegal 121
Mandatory Disclosure Statements and Limitations MEDIATION 122
on Discovery 81 Forms of Mediation 122
Enforcement 82 Mediation Process 123
Informal Gathering of Evidence 82 Role of the Paralegal 124
ROLE OF THE PARALEGAL 83 MED-ARB 126
ETHICAL ETIQUETTE 83 Role of the Paralegal 127
PRACTICE POINTERS 84 SUMMARY JURY TRIAL 127
TECHNO TIP 84 MINI-TRIAL 128
SUMMARY 85 Role of the Paralegal 129
KEY TERMS 86 OTHER OPTIONS 129
WORKSHOP ALERT 86 BRIGHT AND DARK SIDE OF ADR 130
REVIEW QUESTIONS 86 LIMITATIONS OF ADR 133
PRACTICE EXAM 87 ETHICAL ETIQUETTE 134
LITIGATION LINGO 89 PRACTICE POINTERS 135
LITIGATION LOGISTICS 89 TECHNO TIP 136
PROCEDURAL PONDERABLES 90 SUMMARY 136
KEY TERMS 138
WORKSHOP ALERT 138
CHAPTER 5 REVIEW QUESTIONS 139
PRACTICE EXAM 139
ROAD MAP OF A LAWSUIT: MOTIONS 91 LITIGATION LINGO 144
OBJECTIVES 91
MOTION PRACTICE 92
How Motions Are Presented 92 CHAPTER 7
How Motions Are Decided 94
Motions on the Merits 96 ROAD MAP OF A LAWSUIT: PRETRIAL PRACTICE,
Other Tactical Motions 99 TRIALS, AND JUDGMENTS 147
Discovery Motions 100
SCHEDULING ORDERS AND DEADLINES 103 OBJECTIVES 147
THE ALL-PURPOSE MOTION: MOTION FOR A PRETRIAL GETTING TO TRIAL 148
CONFERENCE 104 Obtaining a Trial Setting 148
ROLE OF THE PARALEGAL 104 Pretrial Conferences, Statements, and Orders 149
ETHICAL ETIQUETTE 105 The Countdown to Trial 150
PRACTICE POINTERS 105 Role of the Paralegal 154
TECHNO TIP 106 TRYING THE CASE 155
SUMMARY 106 Jury Selection 156
KEY TERMS 107 Opening Statements 158
WORKSHOP ALERT 108 Presentation of Evidence 159
CONTENTS xiii
GETTING FROM VERDICT TO JUDGMENT 175 COLLECTING THE JUDGMENT 196

ETHICAL ETIQUETTE 178 The Collectibility Conundrum 197
PRACTICE POINTERS 179 Finding Assets 198
TECHNO TIP 180 Execution 199
SUMMARY 180 The Judgment Debtor’s Options 201
KEY TERMS 182 Role of the Paralegal 203
WORKSHOP ALERT 183 APPEAL 203
REVIEW QUESTIONS 183 Role of the Paralegal 208
PRACTICE EXAM 184 ETHICAL ETIQUETTE 209
LITIGATION LINGO 189 PRACTICE POINTERS 210
LITIGATION LOGISTICS 190 TECHNO TIP 210
PROCEDURAL PONDERABLES 191 SUMMARY 211
KEY TERMS 213
WORKSHOP ALERT 213
CHAPTER 8 REVIEW QUESTIONS 213
PRACTICE EXAM 214
ROAD MAP OF A LAWSUIT: JUDGMENT LITIGATION LINGO 218
COLLECTION AND APPEAL 193 LITIGATION LOGISTICS 219
OBJECTIVES 193
INTRODUCTION 194
WORKSHOPS
WORKSHOP 1 WORKSHOP 3
CLAIMS AND THEIR ELEMENTS 221 WORKING UP A CASE FOR SUIT 253
INTRODUCTION: THE SUBSTANTIVE BUILDING BLOCKS INTRODUCTION: CASE WORKUP 253

OF A LAWSUIT 221 CASE WORKUP: STEP-BY-STEP INSTRUCTIONS 254
THE ISSUES OUTLINE 222 Client Interviewing Steps 254
THE ISSUES OUTLINE: STEP-BY-STEP Investigation Steps 261
INSTRUCTIONS 222 Settlement Demand Steps 264
THE ISSUES OUTLINE: LEARNING BY EXAMPLE 228 CASE WORKUP: LEARNING BY EXAMPLE 266
THE ISSUES OUTLINE: LEARNING BY DOING 231 Client Interviewing Steps 266
EXERCISES 231 Investigation Steps 266
PRACTICE POINTERS 232 Settlement Demand Steps 268
TECHNO TIP 233 CASE WORKUP: LEARNING BY DOING 268
FORMS FILE 233 EXERCISES 268
KEY TERMS 233 PRACTICE POINTERS 270
TECHNO TIP 271
FORMS FILE 271
WORKSHOP 2 KEY TERMS 271
CHOOSING A COURT: JURISDICTION, VENUE,
AND CHOICE OF LAW 235 WORKSHOP 4
INTRODUCTION: WHY THE CHOICE OF FORUM COURT PAPERS 273

IS IMPORTANT 235
CHOOSING A COURT: STEP-BY-STEP INSTRUCTIONS 235 INTRODUCTION: CREATING A COURT PAPER THAT
CHOOSING A COURT: LEARNING BY EXAMPLE 248 COMPLIES WITH FORMAT RULES 273
CHOOSING A COURT: LEARNING BY DOING 249 CREATING A COURT PAPER: STEP-BY-STEP
EXERCISES 249 INSTRUCTIONS 273
PRACTICE POINTERS 250 CREATING A COURT PAPER: LEARNING
TECHNO TIP 251 BY EXAMPLE 279
FORMS FILE 251 CREATING A COURT PAPER: LEARNING BY DOING
KEY TERMS 251 279
xiv CONTENTS
EXERCISES 279 HOW TO COMPUTE DEADLINES 326

PRACTICE POINTERS 282 SETTING DEADLINES: STEP-BY-STEP
TECHNO TIP 283 INSTRUCTIONS 327
FORMS FILE 284 SETTING DEADLINES: LEARNING BY EXAMPLE 332
KEY TERMS 284 SETTING DEADLINES: LEARNING BY DOING 334
EXERCISES 334
WORKSHOP 5 TECHNO TIP 336
FORMS FILE 336
DRAFTING PLEADINGS: COMPLAINTS 285 KEY TERMS 336
INTRODUCTION: COMPLAINT DRAFTING 285
COMPLAINT DRAFTING: STEP-BY-STEP WORKSHOP 8
INSTRUCTIONS 285
Preparatory Steps 285 DRAFTING PLEADINGS: RESPONSIVE
Drafting Steps 286 PLEADINGS 337
Concluding Steps 294
COMPLAINT DRAFTING: LEARNING BY EXAMPLE 298 INTRODUCTION: THE ROLE OF THE ANSWER 337
Preparatory Steps 298 ALTERNATIVES TO FILING AN ANSWER 337
Drafting Steps 299 STRATEGIC CONSIDERATIONS AND THE ROLE OF THE
Concluding Steps 299 PARALEGAL 339
COMPLAINT DRAFTING: LEARNING BY DOING 302 ANSWER DRAFTING: STEP-BY-STEP
EXERCISES 302 INSTRUCTIONS 339
PRACTICE POINTERS 303 Preparatory Steps 340
TECHNO TIP 304 Drafting Steps 343
FORMS FILE 304 Concluding Steps 348
KEY TERMS 304 ANSWER DRAFTING: LEARNING BY EXAMPLE 349
Preparatory Steps 349
Drafting Steps 350
WORKSHOP 6 Concluding Steps 351
ANSWER DRAFTING: LEARNING BY DOING 351
SERVING THE COMPLAINT 305 EXERCISE 352
INTRODUCTION: RATIONALE BEHIND SERVICE TECHNO TIP 353
OF COMPLAINTS 305 FORMS FILE 353
HOW TO SERVE A SUMMONS AND COMPLAINT 305 KEY TERMS 353
SERVING THE COMPLAINT: STEP-BY-STEP
INSTRUCTIONS 307 INTRODUCTION TO THE DISCOVERY WORKSHOPS 355
SERVING THE COMPLAINT: LEARNING DISCOVERY REFORM AND MANDATORY
BY EXAMPLE 316 DISCLOSURE 355
SERVING THE COMPLAINT: LEARNING BY LOCAL VARIATIONS 356
DOING 319 DISCOVERY—SEEING THE BIG PICTURE 357
EXERCISES 319 ROLE OF THE PARALEGAL 359
TECHNO TIP 321
FORMS FILE 321 WORKSHOP 9
KEY TERMS 321
DOCUMENT DISCOVERY 361
INTRODUCTION: THE OBJECTIVES OF DOCUMENT

WORKSHOP 7
DISCOVERY 361
PAPER FLOW IN A LITIGATION OFFICE: SERVICE, DOCUMENT DISCOVERY STRATEGY
DOCKETING, AND DEADLINES 323 AND GOALS 361
THE DOCUMENT DISCOVERY PROCESS
INTRODUCTION: THE DEVIL IS IN THE DETAILS 323 IN A NUTSHELL 361
HOW TO SERVE COURT PAPERS AFTER THE TOOLS OF DOCUMENT DISCOVERY 362
THE COMPLAINT 323
CONTENTS xv
DOCUMENT REQUESTS: STEP-BY-STEP Preparatory Steps 410

INSTRUCTIONS 364 Drafting Steps 412
Preparatory Steps 364 Concluding Steps 424
Drafting Steps: Requests for Production 368 ANSWERING INTERROGATORIES: LEARNING
Drafting Steps: Subpoenas 369 BY EXAMPLE 424
Concluding Steps 371 Preparatory Steps 426
DOCUMENT REQUESTS: LEARNING BY EXAMPLE 374 Drafting Steps 427
Preparatory Steps 374 Concluding Steps 430
Drafting Steps: Requests for Production 376 ANSWERING INTERROGATORIES: LEARNING
Drafting Steps: Subpoenas 378 BY DOING 430
Concluding Steps 381 EXERCISES 430
DOCUMENT REQUESTS: LEARNING BY DOING 381 PRACTICE POINTERS 432
EXERCISES 381 TECHNO TIP 433
PRACTICE POINTERS 382 FORMS FILE 433
TECHNO TIP 383
FORMS FILE 383
KEY TERMS 383 WORKSHOP 12
DISCLOSURE RULES AND LIMITATIONS

ON DISCOVERY 435
WORKSHOP 10
WRITTEN DISCOVERY 385 INTRODUCTION: REENGINEERING THE DISCOVERY

PROCESS 435
INTRODUCTION: INTERROGATORIES AND REQUESTS MANDATORY DISCLOSURE 435
FOR ADMISSIONS 385 OTHER DISCOVERY REFORM 437
USES OF INTERROGATORIES AND REQUESTS FOR DISCLOSURE STATEMENTS: STEP-BY-STEP
ADMISSIONS 385 INSTRUCTIONS 440
PROCEDURE FOR INTERROGATORIES AND REQUESTS Preparatory Steps 440
FOR ADMISSIONS 385 Drafting Steps 441
DRAFTING INTERROGATORIES: STEP-BY-STEP Concluding Steps 448
INSTRUCTIONS 388 DISCLOSURE STATEMENTS: LEARNING
Preparatory Steps 389 BY EXAMPLE 449
Drafting Steps 392 Preparatory Steps 449
Concluding Steps 398 Drafting Steps 450
DRAFTING INTERROGATORIES: LEARNING BY Concluding Steps 450
EXAMPLE 400 DISCLOSURE STATEMENTS: LEARNING
Preparatory Steps 400 BY DOING 450
Drafting Steps 401 EXERCISES 450
Concluding Steps 404 PRACTICE POINTERS 456
DRAFTING INTERROGATORIES: LEARNING TECHNO TIP 457
BY DOING 407 FORMS FILE 457
EXERCISES 407 KEY TERMS 457
TECHNO TIP 408
FORMS FILE 408 WORKSHOP 13
DEPOSITIONS AND WORKING

WITH WITNESSES 459
WORKSHOP 11
RESPONDING TO DISCOVERY REQUESTS 409 INTRODUCTION: FINDING OUT WHAT WITNESSES WILL
SAY AND HOW THEY WILL SAY IT 459
INTRODUCTION: PURPOSE OF PREPARING DISCOVERY ADVANTAGES OF DEPOSITIONS OVER WRITTEN
RESPONSE 409 DISCOVERY 459
PROCEDURE FOR RESPONDING TO DISCOVERY PROCEDURAL GOALS 460
REQUESTS 409 DEPOSITIONS: STEP-BY-STEP INSTRUCTIONS 460
ANSWERING INTERROGATORIES: STEP-BY-STEP Preparatory Steps 460
INSTRUCTIONS 410 Clerical Steps 467
xvi CONTENTS
Planning and Taking the Testimony 469 MOTIONS TO COMPEL: LEARNING BY EXAMPLE 523
Concluding Steps 474 Preparatory Steps 525
DEPOSITIONS: LEARNING BY EXAMPLE 477 Drafting Steps 526
Preparatory Steps 477 MOTIONS TO COMPEL: LEARNING BY DOING 528
Clerical Steps 479 EXERCISES 528
Planning and Taking the Testimony 480 PRACTICE POINTERS 531
Concluding Step 481 TECHNO TIP 533
DEPOSITIONS: LEARNING BY DOING 481 FORMS FILE 533
EXERCISES 482
TECHNO TIP 485 WORKSHOP 16
FORMS FILE 485
KEY TERMS 485 MOTIONS FOR SUMMARY JUDGMENT
AND OTHER TACTICAL MOTIONS 535
INTRODUCTION TO THE MOTION PRACTICE
INTRODUCTION: WHAT MOTIONS CAN
WORKSHOPS 487
ACHIEVE 535
WHAT KINDS OF MOTIONS ARE THERE, ANYWAY? 487
THE DECISION TO FILE A MOTION 535
C HECKLIST OF E ARLY-S TAGE TACTICAL
M OTIONS 535
WORKSHOP 14 MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT:
HOW TO PRESENT A MOTION 491 STEP-BY-STEP INSTRUCTIONS 541
MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT:
INTRODUCTION: SIGNIFICANCE OF MOTION LEARNING BY EXAMPLE 543
PRACTICE 491 MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT:
WHAT IS A MOTION PRACTICE? 491 LEARNING BY DOING 546
WHAT RULES GOVERN MOTION WRITING? 491 EXERCISES 548
THE DETAILS ARE IN THE LOCAL RULES 492 PRACTICE POINTERS 551
WRITING A MOTION: STEP-BY-STEP TECHNO TIP 553
INSTRUCTIONS 493 FORMS FILE 553
Drafting Steps 493 KEY TERMS 553
WRITING A MOTION: LEARNING BY EXAMPLE 503
Drafting Steps 504 WORKSHOP 17
Concluding Steps 507 HOW TO PREPARE FOR TRIAL 555
WRITING A MOTION: LEARNING BY DOING 508
EXERCISES 508 INTRODUCTION: THE ORDEAL OF TRIAL 555
PRACTICE POINTERS 509 HOW TO OBTAIN A TRIAL SETTING 555
TECHNO TIP 510 TRIAL PREPARATION TASKS 558
FORMS FILE 510 TRIAL PREPARATION: A TASK-ORIENTED
KEY TERMS 510 CHECKLIST 558
TRIAL PREPARATION: LEARNING BY EXAMPLE 572
TRIAL PREPARATION: LEARNING BY DOING 576
WORKSHOP 15 EXERCISES 577
DISCOVERY MOTIONS 511 TECHNO TIP 579
FORMS FILE 580
INTRODUCTION: HOW DISCOVERY CAN BECOME
KEY TERMS 580
ABUSIVE 511
THE ADVERSARIAL SIDE OF DISCOVERY 511
MOTIONS TO COMPEL: STEP-BY-STEP
WORKSHOP 18
INSTRUCTIONS 515
Preparatory Steps 515 HOW TO OBTAIN A JUDGMENT 581
Drafting Steps 521
CONTENTS xvii
INTRODUCTION: WHAT IS A JUDGMENT AND WHY DO CONSEQUENCES OF BREAKING THE RULES 605
WE NEED ONE? 581 ETHICAL RULES FOR LITIGATORS AND LITIGATION
PROCEDURE FOR OBTAINING A JUDGMENT 581 PARALEGALS 606
JUDGMENT AFTER ADJUDICATION 583 ETHICAL LIMITS ON LITIGATION TACTICS 609
OBTAINING A DEFAULT JUDGMENT: STEP-BY-STEP ETHICS IN LITIGATION: TOPICS FOR DISCUSSION 613
INSTRUCTIONS 586 PRACTICE POINTERS 615
OBTAINING A DEFAULT JUDGMENT: LEARNING BY TECHNO TIP 617
EXAMPLE 594 FORMS FILE 617
OBTAINING A DEFAULT JUDGMENT: LEARNING BY KEY TERMS 617
DOING 599
EXERCISES 602
PRACTICE POINTERS 602 APPENDIX A
TECHNO TIP 603
FORMS FILE 603 ANSWERS TO PRACTICE EXAMS AND
KEY TERMS 603 LITIGATION LINGO AND LITIGATION
LOGISTICS FEATURES 619
WORKSHOP 19
ETHICS IN LITIGATION 605 APPENDIX B
INTRODUCTION: IMPORTANCE OF ETHICS 605 FEDERAL RULES OF PROCEDURE FOR THE

WHAT IS ETHICS AND HOW DOES IT CONNECT TO UNITED STATES DISTRICT COURTS 633
LITIGATION? 605
WHERE DO ETHICAL STANDARDS COME FROM? 605
CIVIL PROCEDURE
AND LITIGATION
CHAPTER
1
INTRODUCTION
OBJECTIVES
In this chapter you will learn:
■ What civil procedure is
■ Why procedural law is important
■ What the main steps in a lawsuit are
■ What common lawsuit terminology

means
2 CHAPTER 1 Introduction
A drunk driver sideswipes your new sports car, which is parked at the
time. It will cost thousands to repair. The drunk driver has no money, and his
insurance company refuses to pay.
You decide to supplement your income by using some of your savings as
a down payment on a house, which you can rent out at a profit. Your tenant
loses her job, and stops paying rent. She refuses to move out.
Your cousin is starting up a new restaurant. Since his budget is limited,
you agree to work part-time for free until the business is up and running, with
the understanding that you will be rewarded appropriately at that time. Six
months later, you have worked hundreds of hours in the restaurant, neglect-
ing your studies, but the business is a success. Your cousin thanks you pro-
fusely and hands you a check for $1,000; he calls your suggestion that you are
entitled to a percentage of the business “ridiculous.”
You enroll in a karate class at your favorite health club. An instructor,
disobeying the rules, launches a flying side kick toward your face, mis-
calculates, and breaks your nose. You feel that the health club should pay
your medical bills. The health club’s insurance company denies cover-
age—it claims that the instructor was a volunteer, not an employee of the
health club.
You hire a contractor to install a new roof on your house. The job is fin-
ished and you pay for it. Two weeks later you return from an out-of-town
trip to find that (1) it has rained; (2) the roof still leaks in a number of
places; and (3) the ceilings, carpets, and several pieces of antique furni-
ture have been destroyed by water damage. When you confront the con-
tractor about his shoddy work, his reply is, “Yeah? What are you going to
do about it?”
Good question. What can you do about it when someone refuses to do
what the law requires of them? What can you do when there is a genuine dis-
pute about what the law requires? How can you force other people to carry out
their legal obligations to you, even when they may prefer not to?
These questions are the central themes of civil procedure and of this text.
BACKGROUND
In less civilized times and places, one way to resolve a dispute might have
been to use direct physical force against one’s opponent. In other societies,
the king or the church might be asked to intercede. Outcomes tended to favor
the powerful or the well connected; justice, if any, was often coincidental.
In modern America, most people believe that it is best to let the govern-
ment resolve disputes between citizens, using its system of courts and police.
In America, if you wish to force someone else to do something that they do not
want to do, you must first go to court and persuade a judge or jury that you
are entitled to what you are asking for. In other words, you sue them. If you
win, the court can use the police powers of the government to force your op-
ponent to obey the court’s decision.
How do you sue someone? Do you just show up at the courthouse and ask
to see a judge? What if your opponent does not wish to go to court and refuses
to cooperate? What procedures must you follow to have your case heard and
decided by the court? If your opponent refuses to accept the court’s decision,
what do you do then?
CHAPTER 1 Introduction 3
W H AT I S C I V I L P R O C E D U R E A N D
WHY SHOULD YOU STUDY IT?
The study of civil procedure is the study of lawsuits and the rules that govern
them. Its focus is not on legal rights themselves, but rather on what you can
do about it when someone violates your rights. Civil procedure is the branch
of law that tells you how to sue someone.
Why, you may wonder, does it take an entire branch of the law to give in-
structions on how to sue someone? All you want is to present your case to the
court and get a final decision—surely that is not very complicated?
In small claims cases, procedures are often quite simple: You fill out a form
stating what you are suing for, a court date is set, and the judge listens to each
side and makes a decision.
In a typical full-blown lawsuit, however, a great deal of preparation must
take place before the case can be presented for final decision. You and your
opponent may not agree on what laws apply to the case. There may be dis-
putes about what evidence will be allowed, or about what instructions should
be given to the jury, or even whether the case should be decided by a jury.
Your opponent may be holding documents or other evidence that you need ac-
cess to. To prepare for trial, you will somehow need to find out what evidence
and testimony your opponent intends to present. These are but a few exam-
ples of the “mini-disputes” that the court must resolve before a case can be
tried and a final decision rendered on the main dispute. Before the judge rules
on each issue, both sides will want to research the applicable law and present
arguments. Each of these pretrial events has the potential to strengthen or
weaken your case, or sometimes even to win or lose the case then and there.
THE IMPORTANCE OF PROCEDURE

The difference between good and bad handling of procedure can make the dif-
ference between winning and losing. Remember, your opponent is likely to be
doing everything possible to reduce your chances of winning. Most lawsuits
are defended with sufficient vigor to make the outcome far less than a cer-
tainty, even in cases where the parties’ rights may seem very clear.
You might reasonably ask how such a thing can be. How, for example, can
you lose a suit against a drunk driver who sideswipes your car while it is
parked? Surely even the most inept of lawyers should be able to win such a
case? This question brings into focus the main reason for studying civil pro-
cedure and learning it well: It is not enough to have a good case that rests “on
its merits”—you must also choose the right procedural steps and carry them
out as well as or better than your opponent does. If you do not believe this,
visit any law library and choose any volume of reported cases at random. You
will find that it contains a significant number, perhaps even a majority, of cases
that were either won by some clever procedural strategy or lost by a proce-
dural mistake. To win consistently, you must be able to weave a carefully cho-
sen series of procedural steps into a winning strategy, while surviving the at-
tacks of your opponent and avoiding making any fatal blunders yourself.
The first step in learning how to put together a winning strategy is a thor-
ough understanding of the rules that govern the conduct of lawsuits. In the
chapters that follow, we will study those rules in considerable detail. In pro-
cedural law, perhaps more than in any other branch of the law, the details are
important. Lawsuits are literally won or lost over such seeming minutiae as
whether holidays are counted when computing a deadline or whether a par-
ticular paper was delivered to someone in the right way.
SIDEBAR
Substance vs. Procedure
Much of the law is devoted to making rules that regulate people’s behavior
in various specific situations. Tort law, for example, lays down rules that make
it wrongful for a drunk driver to destroy your car or for a fellow student to break
your nose. Contract law requires your tenant to pay rent as agreed and may
make a roofing contractor liable for the damage caused by his poor workman-
ship. All of these are examples of rules of substantive law, and most people
would agree that organized society could not survive and prosper without these
and many other similar rules of conduct.
These substantive rules are, however, rather empty unless there is some way
of enforcing them. It does little good to have a law requiring roofing contrac-
tors to perform their contracts in a workman-like manner if homeowners have
no way to extract payment from contractors who fail to do the job properly. It
will be of little help to you that the law prohibits drunk driving if the law does
not also give you some way to force the drunk driver or his insurance company
to pay for your car. Rights are meaningless without remedies. Procedural law
is the law of remedies.
To make the material in this text as meaningful as possible, we begin by

defining common terminology, presenting some background ideas, and giving
a quick overview of the main steps, or phases, in a lawsuit. In Chapter 2, we
will study how court systems are organized. Then, in Chapter 3, we will offer
a more detailed road map of the territory to which the remainder of the course
will be devoted in the form of a step-by-step look at the procedural maneu-
vering in a typical lawsuit.
TERMINOLOGY
In any academic subject, it is essential to use words accurately and to have a
clear understanding of their meaning. Words encapsulate ideas; you cannot
understand the ideas if you do not know the meanings of the words. In your
career as a paralegal, your employer will expect you to be familiar with the
common vocabulary of the law office.
Moreover, words take on a special significance in the law: Laws them-
selves are essentially just complex definitions of words. For example, if you
sue the drunk driver who sideswiped your car, the judge will instruct the jury
on the meaning of the word negligence. Whether you win or lose will depend
on whether the members of the jury think the drunk driver’s conduct fits that
definition.
This book will stress correct use of terminology, and each chapter high-
lights definitions of terms pertinent to the subject of that chapter, with exam-
ples illustrating their meanings. You may also wish to refer to a law dictionary
for additional guidance.
Civil procedure, as already noted, is the body of law that deals with the
rules for conducting civil lawsuits. A civil lawsuit, or a civil action, is a
process by which a person who believes that someone else has wronged her
can ask a court to order her adversary to repair the wrong. A lawsuit is
called civil to distinguish it from prosecutions under the criminal law (see
sidebar). Criminal actions must be initiated by the government, and they
SIDEBAR
Remedies: Criminal vs. Civil
The American legal system uses two main weapons to enforce its rules of be-
havior: criminal punishment and the civil lawsuit. Criminal punishment is in-
tended to deal with offenses that damage society as a whole. Whatever you may
think of its effectiveness for that purpose, the criminal justice system is of little
use in, for example, getting a shoddy roofing contractor to pay for your ruined
furniture. Only the government can bring a criminal prosecution—you can nei-
ther start criminal proceedings against your roofing contractor nor control the
proceedings once begun. Worse, the criminal law’s focus is on punishing or re-
habilitating the wrongdoer and only incidentally, if at all, on compensating the
victim. Even if you manage to persuade the government prosecutor that a crime
has been committed—and breaching a contract, like most garden-variety mis-
deeds, is usually not a crime—getting the contractor punished will not replace
your furniture or fix your ceilings.
In the examples given at the beginning of the chapter, the civil lawsuit fits
your needs considerably better, though not perfectly. In most cases (but not all,
as we will see), you can decide on your own whether, when, and for what to
sue—you do not have to persuade a prosecutor or other government agency to
act first. Nor will your strategy and timetable be dictated by the caseload and
budgetary limitations of a prosecuting agency. You will be free to pursue your
civil remedies in whatever way you deem best or can afford to pay for. And
therein lies one of the disadvantages: Civil lawsuits, unlike criminal prosecu-
tions, are not free of cost to the aggrieved party; in fact, they can be extraordi-
narily expensive for the person suing and for the person sued.
seek to punish the accused. Civil actions can be filed by anyone (filing does
not, of course, guarantee winning). Putting It
Usually, the remedy given by courts in civil actions is an award of dam- Into Practice:
ages, which refers to an amount of money determined by the court. In certain
special situations, the court may order someone to do some particular thing Why might civil procedure
(such as turn over title to property) or to refrain from doing something. Such arguably be one of the
an order is called an injunction. Or the court may enter a judgment for spe- most important subjects
cific performance of a contract, ordering a party to do some particular thing for a paralegal to master?
that the party has contracted to do.
To litigate means to conduct or defend a lawsuit. A person who begins a
lawsuit is called a plaintiff. A person who is sued is called a defendant. There
can be more than one of each. The people who are suing or being sued are re-
ferred to as the parties to the suit. A plaintiff is a party, and so is a defendant.
The lawyers are not parties, nor is the judge. The parties to a lawsuit are also
sometimes called litigants. Do not confuse this with the word litigator; a
litigator is an attorney who specializes in handling lawsuits.
Must a plaintiff or defendant be what the law calls a natural person—that
is, a live human being? No; entities—artificial “persons” or organizations, such
as corporations, partnerships, and limited liability companies—can be par-
ties, and so can the estates of deceased persons. Political subdivisions, such
as cities and counties, and government agencies at all levels can be parties in
certain cases. The rules for deciding what kinds of entities are permitted to
sue and be sued are not the same in every case or in every court.
Parties to lawsuits are usually represented by attorneys. The require-
ments to be licensed as an attorney vary from state to state but typically in-
clude graduation from an accredited law school, passing of a bar examination,
and a character investigation. Parties can usually handle their own lawsuits if
they wish (although it may be imprudent to do so without proper training), but
only attorneys may represent other people in a lawsuit.
We will often speak of the parties taking a particular action in a case—for ex-
ample, we may say that Jane Doe has filed her complaint against Ajax Roofing
Company—but this is really just a shorthand way of saying that Jane Doe’s at-
torney prepared a complaint, signed it on her behalf, and had a messenger de-
liver it to the clerk of the court. In a lawsuit, for most purposes, when a party’s
attorney does a particular thing, it is the same as if the party had done it.
Lawsuits are conducted in courts. A court is an agency of the government
that has the power to adjudicate (decide) particular kinds of disputes and ren-
der a judgment (a formal decision) that the government will enforce, through
the use of its police power, if necessary. Various branches of the government
have established courts; the federal government has courts, and so do the
states, and the counties of most states. The governments of many cities have
their own courts.
In general, each court has limitations on the kinds of cases it can decide.
If a court has the power to adjudicate a particular kind of case, we say that the
Putting It court has jurisdiction over that kind of case. For example, the federal courts
Into Practice: have jurisdiction over disputes that involve questions of federal law. It may
Why is it important to surprise you that state courts also, typically, have jurisdiction over disputes
know the jurisdictional involving questions of federal law; in this respect, the federal and state courts
powers of each court? are said to have concurrent jurisdiction. Thus, a plaintiff may have the op-
portunity to choose which court to sue in from among two or more courts that
have jurisdiction. Deciding which court to sue in can be complicated, and we
will discuss the issue in detail in a later chapter.
Venue is a concept related to jurisdiction; venue rules place further limi-
tations on a plaintiff’s choice of where to file suit and are intended to require
suits to be brought at a place that is least inconvenient for the parties and wit-
nesses. You may have heard of defendants in criminal cases asking for a
change of venue in order, for example, to move the case to a location where it
will be easier to find jurors who have not already been exposed to the facts of
the case as told in the news media. In civil suits, however, venue transfers are
more likely to depend on such questions as whether the defendant is a resi-
dent of the county in which the plaintiff brought suit, or whether the events
that led to the dispute occurred in that county.
Each court is presided over by one or more judges. A judge is a govern-
ment official, usually required to be a lawyer, who is appointed or elected to
preside over cases. The judge’s job is to control the adjudication of the cases
assigned to him or her. The judge may or may not decide who wins and who
loses in a particular case; often that decision is made by a jury, or, increasingly,
by an arbitrator, or by the parties themselves when they reach a settlement.
An arbitration may be required to hear a claim due to contract requirements,
statutes, or rules of court. An arbitrator is a disinterested third party who may
be chosen by the parties or appointed by the court. The method of selecting
the arbitrator may also be contractual. In some courts, each case is assigned
to a single judge, who is responsible for all aspects of the case from beginning
to end. In other courts, judges are assigned to particular tasks, so that a num-
ber of judges may preside over various aspects of the case as it wends its way
through the system.
Much of the activity in a lawsuit consists of written documents, prepared
by the parties or their lawyers, which are filed with the court. Papers are filed
by delivering them to the office of the clerk of the court, where they are added
to the court’s permanent file of the lawsuit. You will often hear people refer to
court papers generically as pleadings, although, technically, the term plead-
ings includes only certain papers such as the complaint and answer. In this
SIDEBAR
Common Words, Uncommon Meanings
What does the word party mean? Do you know? Are you sure?
We use this “trick” question to illustrate a very important point: The law of-
ten “borrows” commonplace English words to use as technical terms, giving
them new and precise meanings that you would never guess at from their com-
monplace definitions. In ordinary English, for example, party is more or less syn-
onymous with person. But in procedural law, as we have seen, a party is a per-
son or other entity who is a plaintiff or defendant in a lawsuit. When a
procedural rule refers to any party, it does not mean any person—it means any-
one who is a plaintiff or defendant in the lawsuit in question. If you skimmed
over the definition of party, assuming that you already knew what the word
meant, you would find it impossible to make sense out of future material that
depends on the distinction between parties and nonparties.
So be warned! When you see a word in bold type in this book, pay atten-
tion to the definition—do not assume its legal meaning is the same as its every-
day meaning.
text, we will use the term court papers to mean any papers generated in the
lawsuit that are required by the rules to be filed with the court or to be deliv-
ered to an opposing party.
As you would expect, court rules typically require a party filing any pa-
pers with the court to deliver copies to the other parties to the suit. Delivery
of a copy to the assigned judge may also be required. Delivering copies of a
court paper to a person is often called service. Thus, if we say that Jane Doe’s
complaint was served on Ajax Roofing Company, we mean that a copy of the
complaint prepared by Jane’s lawyer was delivered to Ajax in some way that
complies with the court’s rules. There are detailed rules, which we will ana-
lyze in a later chapter, that specify how delivery must be made under various
circumstances.
Lawsuits are made up of issues. An issue is simply a question about which
the litigants disagree. A distinction that comes up a great deal in procedural
law is that between issues of fact and issues of law. Issues of fact arise when
the litigants disagree about what happened. For example, was the karate in-
structor who broke your nose an employee of the health club or not? That is
a question of fact. Does the law require a health club owner to compensate
someone injured by a volunteer instructor? That is a question of law. In an ac-
tual lawsuit, both issues would likely be disputed, but they would be decided
in quite different ways.
Deciding issues of fact requires evidence. Evidence is any information that
tends to establish the facts. The most common kinds of evidence in civil suits
are testimonial evidence and documentary evidence. Testimony consists of
a witness testifying—telling what he or she knows about the case after swear-
ing an oath to tell the truth. Documentary evidence is written or recorded in-
formation—contracts, payroll records, computer printouts, and tape record-
ings are all examples of documentary evidence.
Issues of fact are ordinarily decided in a trial. A trial is a formal proceed-
ing in which each side presents its evidence and argument. The purpose of a
trial is to reach a verdict. A verdict is a formal, written decision indicating
what was decided at the trial. Who does the deciding in a trial?: the trier of
fact. In a jury trial, the trier of fact is the jury. In cases in which there is no right
SIDEBAR
Common Law Pleading
Modern American procedural rules may seem arbitrary and exacting, but
our system of civil courts has evolved a great deal from its ancestor, the English
law courts of past centuries.
In all legal systems there is a constant tension between two competing
goals. On one hand, we want the system to be flexible—we consider it unjust for
someone to lose his case because he failed to follow some trivial bureaucratic
rule. On the other hand, we want justice to be uniform and predictable; we do
not want the outcome of a case to depend on the whim of the judge who hap-
pens to decide it.
Prior to the late fourteenth century, English civil procedure leaned toward
flexibility. Nearly all procedural matters were handled orally, so the judge was
free to fashion a solution to fit the situation at hand.
Beginning in the fifteenth century, the pendulum swung decisively in the op-
posite direction with the invention of what is today referred to as common law
pleading. Suing someone consisted of convincing the court to issue a writ—a
highly formalized document that had to conform to very specific rules. There
was a writ for each type of case; if your grievance did not happen to fit one of
the existing writs, you were out of luck. If you mistakenly chose a writ that did
not fit your case, you lost, even if you would have been entitled to win had you
used some other writ. You did not dare make any factual mistakes, because you
were required to prove each and every fact set out in the writ, whether or not
necessary to your case.
Over the ensuing centuries, the English civil court system spawned ever more
complicated and arbitrary procedural rules. By the nineteenth century, civil
cases could drone on for decades, and the court system was fodder for Dicken-
sian satire. English litigants turned increasingly to the church for adjudication
of civil disputes, taking advantage of the power of the chancellor—the head of
the church—to jail anyone who disobeyed him. Modern injunction practice
evolved from the practice of petitioning the English chancellor to order an op-
ponent to do something.
In the twentieth century, reformers, seeking to make court procedure less ar-
bitrary and complex, gained the upper hand in America. The Federal Rules of
Civil Procedure, adopted in 1938, enormously simplified lawsuit procedure in
federal courts, and most states followed suit in the next few decades.
The current explosion of litigation may be eroding this hard-won simplicity.
Court systems find it efficient to create new divisions that specialize in particu-
lar kinds of cases, but each new specialty creates its own set of procedural rules.
This promotes uniformity, allowing courts—and law offices—to create an effi-
cient, “production line” operation. But it also makes the system less flexible and
harder for nonspecialists to understand.
to a jury trial, or in which the parties waive a jury, the judge acts as the trier
of fact. The function of the trier of fact is, as the term indicates, to decide all
of the issues of fact—in other words, to decide what really happened when the
litigants do not agree on what happened.
Issues of law are always decided by the judge. Even if the parties disagree
about what the law means, it is the judge, not the jury, who decides the issue.
There is no need for evidence when deciding issues of law, which makes it pos-
sible for the judge to decide such issues at any convenient time, not just dur-
ing the trial. Usually, the judge decides issues of law in response to a motion
by one of the litigants. A motion is simply a formal request asking the court to Putting It
decide some issue about which the litigants disagree. Into Practice:
A plaintiff is injured on a
hike sponsored by the
THE MAIN PHASES resort at which she is a
guest. Who will decide
O F A L AW S U I T whether the resort had
any legal obligation to
warn the plaintiff about
What are the main events in a typical lawsuit? We can answer the question only the possible risks of going
by arbitrarily choosing what is “typical”—the rules of procedure offer great on the hike?
scope for creativity and variation. A lawsuit is a little like a car trip from Los
Angeles to New York: The starting point and destination are fixed, but there
are many possible routes. With that warning, we find it convenient to think of
a lawsuit as consisting of several phases, as diagrammed in Figure 1–1.
Figure 1–1 Phases of a Lawsuit
Phase Tasks
Pre-suit Investigate; form strategies; assemble evidence;
explore settlement; choose forum
Preparation Pleadings; discovery; motion practice; pretrial
practice
Trial Presentation of evidence; verdict; post-verdict
motions; judgment
Post-Judgment Appeals; collection procedures
PRE-SUIT PHASE
The real work of a lawsuit begins well before any papers are filed with the
court. During what we will call the pre-suit preparation phase, attorneys for
both sides may conduct investigations and attempt to negotiate settlements.
It is also important for the attorneys to think through their strategies before
filing suit; options will be more limited once the suit has begun and each side
has stated its position in writing.
PREPARATION PHASE
The lawsuit itself begins when the plaintiff files a complaint with the court.
Plaintiff’s goal is usually to obtain a favorable judgment, which usually requires
getting the case to trial; defendant’s goal is usually to have the case dismissed
as early as possible. A number of things must, under typical rules of procedure,
occur before a trial can take place. We categorize these as pleading, discovery,
motion practice, and pretrial practice. These categories are arbitrary. We will
call them tasks rather than phases, to emphasize that they do not necessarily
take place in sequence—all four can be going on at the same time.
Pleadings—The complaint is part of what we will call the pleadings task, in

which each party to the suit is required to state what the dispute is about and
what it is that he wants the court to do. The goal of the pleadings is to define
exactly what issues the court is being asked to decide.
Discovery— Discovery refers to the procedures used to locate evidence and

prepare it for trial. In modern litigation, it is often necessary to obtain records and
information from an opponent, and discovery procedures provide ways to do
this. There are also procedures for obtaining documents or testimony from third
parties—that is, people who are not directly involved in the suit. Naturally, not
everyone cooperates, so procedures exist for forcing people to testify or turn
over evidence. In a typical lawsuit, discovery goes on more or less continuously
and accounts for a great deal of the time and effort expended prior to trial.
Motion Practice—Motion practice is the process by which the parties can ask
the judge to decide preliminary matters. The parties almost always disagree
about what questions should be decided at the trial and what lines of evidence
should be allowed. It is most efficient for the judge to decide such things well in
advance. Otherwise, the lawyers would have to waste time preparing for pre-
sentations they might not be allowed to make. Disputes also arise about dis-
covery procedures and pleadings. At times, a party may refuse to do some-
thing—turn over evidence, for example—that the other party believes is
required. In general, any time the parties are in disagreement about some pro-
cedure, one or the other can file a motion asking the judge to decide who is right.
Pretrial Practice —The task that we will call pretrial practice consists of ac-
complishing the necessary procedures and paperwork to get the case set for
trial and allow the trial to begin. You might expect this to be a simple task, but
the overwhelming case loads in many urban court systems have led to rules
specifying various procedures that must be followed before a trial setting will
be granted, and additional procedures may be required before trial can begin.
These are intended to ensure that, in every case that actually goes to trial, the
parties are fully prepared, have focused on the issues so that the court’s time
will not be wasted with unnecessary matters, and, in an increasing number of
court systems, have made a reasonable effort to reach a settlement.
TRIAL PHASE
Trials, like all other phases of a lawsuit, are governed by rules of procedure.
These dictate such things as the order in which evidence and arguments are
presented, and whether a jury will be used and if so what instructions it will
be given. There are also procedures—motions for directed verdict and the
like—that allow the judge to cut the trial short if one party or the other fails to
offer enough evidence to support a decision in his or her favor. The trial typi-
cally ends in a verdict for one side. After the trial, the rules allow a short pe-
riod of time for the parties to present motions seeking to have the verdict over-
turned or asking for the case to be retried. Then, the court will enter judgment.
POST-JUDGMENT PHASE
You might imagine that when the court enters judgment, the dispute is re-
solved and the lawsuit is over. In the American civil court system, however,
entry of judgment often merely marks the beginning of a new phase of the bat-
tle. First, it is a rare case in which a party who is not satisfied with the court’s
decision cannot find at least some plausible grounds for appeal. Appeals may
Putting It delay the final resolution of the dispute for several years even if the trial
Into Practice: court’s decision is ultimately upheld; if the appeals court disagrees with the
Identify all the points at trial court’s decision, the case may have to be rescheduled for a new trial.
which a party could lose But suppose the trial court’s judgment is not appealed—surely, now, the
a case. dispute is over? Far from it: A judgment is not self-executing. In most cases, a
civil judgment is merely a declaration by the court that one party owes money
to the other. It is entirely up to the winning party to figure out how actually to
collect the money. There are procedures designed to help that allow the win-
ning party to obtain information about what assets the loser has and where
they are located; impose and foreclose liens on those assets; and obtain the
assistance of the police or sheriff in seizing and selling assets.
A LT E R N AT I V E PAT H S
Lawsuits involve complicated procedures, cost enormous amounts of money,
and sometimes take years to resolve. Surely, you might ask, there must be bet-
ter ways of resolving disputes?
In fact, many court systems now actively encourage various forms of ADR—
alternative dispute resolution. To reduce the caseloads of judges, courts can
require that cases be decided by a volunteer arbitrator if the amount of money
in dispute is small. An arbitrator is someone who is appointed by the court or
selected by the parties to decide a case. Many courts actively promote settle-
ment of cases by requiring parties to meet with a judge for a formal settlement
conference. Another approach is to enlist the help of a mediator—someone
who, instead of choosing a winner, will conduct negotiations to try to reach a
compromise. We will revisit the subject of ADR in detail in a later chapter, be-
cause it clearly represents the emergence of a strong trend in litigation.
ROLE OF THE PA R A L E G A L
It may already be obvious to the reader that the aspects of litigation that must
be conducted by a licensed attorney—court appearances, mainly—represent
only a small part of the process. In modern litigation firms, paralegals are ac- Putting It
tively involved at every stage of a lawsuit. Particularly when cases are factually Into Practice:
complex, the assistance of paralegals in assembling, indexing, organizing, and Why might litigation be
analyzing documents can be indispensable. Paralegals are often given the tasks a good choice for a
of preparing pleadings and writing motions, and are often assigned to prepare paralegal who likes
and respond to discovery requests. Even at trial, it is not uncommon for attor- diversity and thrives on
neys to be assisted by one or more paralegals, whose detailed familiarity with stress?
the facts of the case and ability to locate particular items of evidence quickly
may confer a competitive advantage. In short, litigation is a field in which the
scope for paralegal involvement is nearly unlimited, and an ambitious and well-
trained paralegal can advance to a high level of challenge and responsibility.
ETHICAL ETIQUETTE
B ecause the legal assisting field is
relatively new, legal assistants are
still carving out their niche, defining
professionals (because they are not
self-regulating and are not bound by a
code of ethics), they, like dental
for themselves, attorneys, and the hygienists, nurse practitioners, and
public in general the parameters of others in the allied health field, are
their role. While unable to perform considered paraprofessionals.
tasks specifically reserved for lawyers, As paraprofessionals they are not
they are members of a professional obligated to adhere to the code of
team and share the prestige and conduct that binds attorneys. They
responsibilities of being part of such a cannot, for example, be disbarred (lose
team. Although not classified as a license to practice) for unprofessional
continued
ETHICAL ETIQUETTE continued
conduct because they are not licensed prescribed educational and character
to begin with. If legal assistants are to requirements and to pass an examina-
enhance their status as paraprofes- tion. We will not engage in this debate
sionals, however, and if they want to in this text, but we will point out in the
expand their role within the legal Ethical Etiquette section of each
profession, they must not only adhere chapter critical ethical issues of which
to the ethical code of attorneys but you should be aware. Even if you have
must also forge a code of professional covered ethics in another course,
conduct for themselves. please take the time to at least refresh
The subject of professionalism is your memory. Beyond being scrupu-
a hot topic in the legal assisting field. lously honest with your colleagues,
One of the professionalism issues that clients, and court personnel, you must
is currently being debated is whether learn to avoid the ethical land mines
legal assistants should be licensed, that await you when you enter the
thereby requiring them to meet field of legal assisting.
PRACTICE POINTERS
The diversity of tasks a litigation paralegal performs is astounding. They in-

clude, but are not limited to:
■ Drafting correspondence,
■ Reviewing and organizing documents,
■ Investigating facts,
■ Setting up case files,
■ Interviewing witnesses,
■ Conducting research,
■ Indexing files,
■ Drafting responses to discovery requests,
■ Preparing internal memoranda,
■ Summarizing depositions,
■ Setting up tickler systems,
■ Creating trial notebooks,
■ Preparing trial exhibits,
■ Communicating with clients,
■ Identifying potential experts,
■ Working with witnesses,
■ Working with court staff,
■ Handling details attorneys forget or shun, and
■ Billing time.
A quick review of these tasks reveals that legal assistants must not only pos-
sess knowledge of substantive law, procedural rules, and computer technology,
but must also be able to communicate effectively and clearly with a wide vari-
ety of personalities. Furthermore, because of the time pressures created by
hectic litigation schedules, they must have excellent organizational and time
management skills.
The Practice Pointers sections in each chapter are dedicated to helping
you cultivate these latter skills. They will show you how to be efficient, orderly,
and highly effective even under the most stressful circumstances.
TECHNO TIP
A basic requirement of any legal as- program functions that, for instance,
sistant is a working knowledge of word can automatically generate a table of
processing and associated programs contents and a table of authorities that
dealing with spreadsheets and data- includes a listing of all cases cited.
bases. The most popular word process- Spreadsheet programs, such as Lo-
ing program in the legal community is tus 1-2-3® and Excel®, provide more
WordPerfect®. Microsoft’s Word® is also than enough functionality to meet the
a popular program and with the advent needs of most any legal assistant. Data-
of the Office suite of programs is gaining base managers such as Access® and
ground in the legal environment. A legal dBase® round out the “trio” of program
assistant should be able to type compe- types with which you should be familiar.
tently, format text, insert graphics, and Due to the special needs of the le-
utilize the program’s bells and whistles, gal community, specialized programs
such as the spelling and grammar check- for law office applications, incorporat-
ers and the thesaurus. An added skill, ing spreadsheets and database man-
which is becoming more of a require- agement, have been created. They will
ment, is the ability to use higher level be discussed in a later Techno Tip.
S U M M A RY
Civil procedure is the study of lawsuits and the laws that govern them; it is the
law of remedies. How litigants deal with the details dictated by the rules of
civil procedure may determine the outcome of a case.
Plaintiffs in civil actions are seeking damages, injunctions, or specific per-
formance. Plaintiffs may be either natural persons, entities, estates, or politi-
cal subdivisions. To adjudicate a matter, a court must have proper jurisdic-
tion. Lawsuits are initiated when plaintiffs file pleadings with the clerk of the
court and serve the defendant with a complaint. Lawsuits revolve around is-
sues of fact (which are resolved by the trier of fact) and issues of law (which
are resolved by judges). Issues of fact require the introduction of testimonial
and documentary evidence at trial, whereas issues of law are usually brought
to the court’s attention when one of the parties files a motion.
During the pre-suit phase prior to a lawsuit being filed the attorneys con-
duct investigations, attempt negotiations, and prepare their strategies. The law-
suit begins officially when a complaint is filed. Discovery, which consumes most
of the time and effort expended in preparing for trial, occurs subsequent to the
filing of pleadings and is the time in which evidence is located. To resolve the
inevitable disputes that arise in reference to what evidence should be intro-
duced at trial, what discovery should be allowed, and what issues should be
presented at trial, attorneys file motions with the judge. Prior to trial the parties
must follow pretrial procedures that help ensure the parties are prepared to go
to trial, that the issues are refined, and that some efforts at settlement have
been attempted. Procedural rules also dictate the admission of evidence at trial,
the presentation of arguments, the appropriateness of making motions, and the
offering of jury instructions. After a verdict is entered the parties are given an
opportunity to request that the verdict be overturned or that the case be re-
tried. The parties may then appeal the court’s judgment. Because judgments are
not self-executing, the prevailing party must follow the procedures required to
ascertain, locate, and seize the assets of the defendant.
As an alternative to the litigation process, parties may opt for some form of
alternative dispute resolution, involving the use of an arbitrator or mediator.
ADR is used frequently today as a means of reducing the caseloads of courts.
KEY TERMS
Adjudicate Injunction Pleading

Alternative dispute resolution Issue of fact Political subdivision
Arbitrator Issue of law Procedural law
Attorney Judge Served
Civil action Judgment Service
Civil procedure Jurisdiction Specific performance
Concurrent jurisdiction Litigant Substantive law
Court Litigate Testifying
Court paper Litigator Testimonial evidence
Damages Mediator (testimony)
Defendant Motion Trial
Discovery Motion practice Trier of fact
Documentary evidence Natural person Venue
Entity Party Verdict
Filed Plaintiff
REVIEW QUESTIONS
1. Why is it important to study civil procedure? 6. What are two of the most common types of evi-
dence in a civil suit?
2. What is the difference between procedural law
and substantive law? 7. How do the two goals of flexibility and unifor-
mity cause tension in the legal system? How
3. How does a civil suit differ from a criminal case? has that tension affected the evolution of plead-
4. Explain what is meant by the following: ings in England and the United States?
a. Judgment 8. What are the four phases of a lawsuit? Describe
b. Jurisdiction what happens at each phase.
c. Venue
d. Pleadings 9. Use the following groups of words in a single
e. Service sentence:
f. Trier of fact a. Litigate; plaintiff; defendant; damages
g. Discovery b. Concurrent jurisdiction; judgment; venue;
h. Motion practice adjudicate
i. Alternative dispute resolution c. Parties; pleadings; jurisdiction; filed
j. Arbitrator d. Issue of fact; documentary evidence; trier of
fact; verdict
5. How does an issue of fact differ from an issue
of law?
PRACTICE EXAM
(Answers in Appendix A) MULTIPLE CHOICE
1. Learning the procedural rules is important be- c. discovery documents.

cause d. only a and b.
a. knowing the rules could make the difference 6. Motion practice
between winning and losing a lawsuit. a. takes place primarily during a trial.
b. meritorious cases can be lost if the right pro- b. facilitates the resolution of disputes that
cedural steps are not followed. arise between parties.
c. your opponent will use the procedural rules c. is a procedure used to locate evidence be-
to try to defeat you. fore trial.
d. all of the above. d. goes on between the parties but does not in-
2. Procedural rules volve a judge.
a. are the rules that set forth people’s rights. 7. Pretrial practice
b. include the rules of tort law and contract law. a. is relatively simple in most cases.
c. constitute the law of remedies. b. helps ensure that parties are prepared for trial.
d. are the rules that govern the conduct of law- c. encourages parties to make a reasonable ef-
suits. fort toward settlement.
e. c and d. d. b and c.
3. The civil system 8. Once a judgment is entered
a. deal with offenses that damage society as a a. the lawsuit is over.
whole. b. the prevailing party can immediately recover
b. focuses on compensating the victim. damages.
c. depends on the decisions of a prosecutor. c. the prevailing party must figure out how to
d. must be initiated by the government. locate the loser’s assets.
4. A plaintiff in a civil suit may seek 9. Alternative dispute resolution
a. damages. a. can save money.
b. injunction. b. reduces the time necessary to resolve dis-
c. specific performance. putes.
d. all of the above. c. reduces the caseload of judges.
5. Pleadings include d. all of the above.
a. complaints.
b. answers.
FILL IN THE BLANKS

10. ____________________ is the study of lawsuits 14. A ____________________ is a formal decision
and the rules that govern them. rendered by a court and enforced by the
11. ____________________ are the rules that government.
regulate people’s behavior and include the rules 15. A court can adjudicate a case only if it has
set forth in tort law and contract law. ____________________ over that case.
12. A ____________________ is initiated by an 16. The rules of ____________________ require
individual seeking damages to right a wrong she plaintiffs to bring suit in places that are least
has suffered. inconvenient for the parties and witnesses.
13. A plaintiff may seek an ____________________ 17. An ____________________ is a disinterested
to force a defendant to refrain from engaging in a third party chosen by the parties or appointed by
particular activity. the court to render a decision in a case.
18. The delivery of court papers to a person is 23. The goal of ____________________ is to set
called ____________________ . forth the issues the court is being asked to decide.
19. Technically the term ____________________ 24. ____________________ refers to the procedures
refers to the complaint and answer. used to locate evidence and prepare it for trial.
20. An ____________________ is a question that 25. The use of arbitrators and mediators
litigants disagree about in reference to what exemplifies an alternative to the court system,
happened. called ____________________ .
21. The two most common types of evidence are 26. An ____________________ is someone selected
____________________ evidence and by the parties or appointed by the court to decide
____________________ evidence. a case, whereas a ____________________ is
22. A formal proceeding at which parties present someone who helps the parties negotiate a
evidence and arguments is a compromise.
____________________ ; the formal, written
decision at the end of this proceeding is called
a ____________________ .
TRUE OR FALSE
27. Only natural persons can file lawsuits. T F 37. Issues of fact are usually decided in response to
motions. T F
28. Procedural rules rarely affect the outcomes of
cases. T F 38. Discovery accounts for a great deal of the time
and money expended before trial. T F
29. The emphasis of criminal law is on compensat-
ing victims. T F 39. If the defendant refuses to turn over evidence,
the plaintiff may file a motion with the court re-
30. An injunction requires a party to do something questing that the evidence be turned over.
the party has contracted to do. T F T F
31. Political subdivisions can never be parties in 40. Once parties have completed the discovery
civil cases. T F process, nothing more is required before the
32. State courts and federal courts can have con- case will be set for trial. T F
current jurisdiction. T F 41. A judge cannot cut a trial short under any cir-
33. Arbitration is sometimes required by contract, cumstances. T F
statute, or the rules of court. T F 42. After trial the losing party can move to have a
34. The term party for purposes of the law refers to verdict overturned or the case retried. T F
a plaintiff or defendant. T F 43. A judgment is self-executing. T F
35. Issues of law are decided by the trier of fact. 44. Appeals can delay the final resolution of a case
T F for years. T F
36. Issues of law are decided at trial, whereas 45. Settlement conferences are a form of alternative
issues of fact are decided before the trial. dispute resolution that courts use to promote
T F the settlement of cases. T F
LITIGATION LINGO
(Answers in Appendix A) CROSSWORD PUZZLE
DOWN
1. To conduct or defend a lawsuit
3. Requirement that lawsuits be brought in place least inconvenient for parties and witnesses
4. Agency of the government that has the power to adjudicate
5. Information that tends to establish facts
8. Power of court to adjudicate particular kind of case
9. Disinterested third party chosen by parties or appointed by court to decide outcome of case
10. Order by court to refrain from doing something
ACROSS
2. Delivery of copies of court papers
6. Question about which litigants disagree
7. Complaint and answer
8. Formal decision rendered by court and enforced by government
9. Decide outcome of case
11. Law of remedies
12. Formal request asking court to resolve issue over which parties disagree
13. Someone who helps parties negotiate a compromise
14. Acronym for alternative to court system
15. What federal and state courts share
1 2 3 4
9 10
11
12 13
14 15
LITIGATION LOGISTICS
(Answers in Appendix A)
Using the hypothetical at the beginning of the chapter involving the drunk driver sideswiping your
car, answer the following questions:
1. What is a substantive law issue that is likely to 7. Give an example of documentary evidence you
arise in this case? would probably want to produce.
2. What is a procedural law issue that is likely to 8. Give an example of an issue that might be re-
arise in this case? solved by filing a motion with the court.
3. What factors would you consider in deciding 9. If the jury returned a verdict in your favor, what
which court to sue in? would you have to do to collect damages from
the defendant? What might happen that would
4. What would you have to do to initiate suit? prevent you from collecting damages from the
5. Give an example of an issue of fact that would defendant immediately?
likely have to be resolved in this case. 10. What kind of ADR is likely to be used in this
6. Give an example of an issue of law that would case?
likely arise in this case.
PROCEDURAL PONDERABLES
1. Five potential lawsuits are described at the be- c. Cousin refuses to pay you a percentage of
ginning of this chapter. Assume that you are the his business.
plaintiff in each case. What type of resolution d. Karate instructor breaks your nose.
would you consider acceptable? In other e. Contractor does shoddy work on house.
words, would you be satisfied with being com- 2. If you had the power to create a new system for
pensated for your losses or would you want to dispute resolution, which aspects of the Amer-
seek additional damages? If so, what damages ican legal system would you adopt and why?
or additional relief would you want? Write Which aspects would you change and why? Ex-
down the goals of your lawsuit in each of the plain how your system would operate.
following cases:
a. Drunk driver sideswipes your car.
b. Tenant stops paying rent and refuses to
move out.
CHAPTER
2
COURTS AND
FILINGS
OBJECTIVES
■ What a court is and where its power

comes from
■ What kinds of courts there are
■ A few procedural tools and concepts

that apply to all courts
■ How to find out what procedures are

followed in a given court
20 CHAPTER 2 Courts and Filings
Your firm’s client received minor injuries in an automobile collision. Your

supervising attorney hands you a file containing a traffic accident report and
a completed client questionnaire in which she has written down the infor-
mation related by the client. The file also includes a rough draft of the main
body of the complaint which she has prepared. She tells you to prepare a law-
suit for filing.
*****
A friend of yours enters into a contract to buy a house. The bank turns
down his credit application, and he is unable to complete the purchase. The
seller sues him for damages. You introduce him to an attorney in your firm.
After reviewing the complaint against your friend and obtaining the neces-
sary information, the attorney assigns you to prepare an answer to the suit.
*****
Your supervising attorney agreed to defend a lawsuit in which his client’s
answer must be filed today. He hurriedly prepares the necessary documents.
It is now 4:15 P.M. and he hands them to you, telling you to be sure they are
filed at the court and stamped with today’s date. “Take these papers down to
the court. . . .”
INTRODUCTION
Most of us have a general idea of what a court is—it is a place where judges
preside over trials. If you want to sue someone, however, you need to know a
bit more than that. How do you find the right court? How many different ones
are there, anyway? How are they organized? Having found the right court, how
do you figure out what to do there? How do you find the rules that apply to
that particular court? Do your court papers have to be in some special format
in order to be accepted for filing?
The answers to these questions vary from place to place. We begin with a
number of general principles that apply everywhere. In keeping with our goal
of making this text practical and relevant to the needs of working paralegals,
however, we do not stop there: We offer specific information on how and
where to find the details for your particular state and city, and we provide
space in this chapter and throughout this text for you to write in the details
for your area as you obtain them or as your instructor provides them. We
strongly encourage you to supplement your text with local notes in this way;
you will find it quite valuable later to have this information available in an or-
ganized, easily accessible way.
W H AT A R E C O U R T S A N D
WHERE DO THEY COME FROM?
The ultimate law of the land in America is the United States Constitution. The
Constitution controls all other laws. Similarly, each state has a constitution,
which is the highest law in that state. The United States Constitution, as well
as each of the constitutions of the fifty states, follows the doctrine of “sepa-
ration of powers.” To prevent any one part of the government from becoming
too powerful, the functions of government are divided among the legislative,
judicial, and executive branches. Congress and the state legislatures make
the laws; the executive branch, consisting of the president and the cabinet de-
CHAPTER 2 Courts and Filings 21
SIDEBAR
Where Do All of These Rules Come From,
Anyway?
The study of civil procedure is the study of rules. There are rules for every-
thing: who can sue, how to sue, who can be sued, how trials are conducted, even
what kind of paper must be used for court filings.
As you may have learned in other classes, most legal rules in America come
either from statutes—laws passed by Congress or a state legislature—or case
law, which consists of rules created by judges in deciding previous cases. Federal
statutes, the laws passed by Congress, are assembled in a multivolume set of
books called the United States Code. Another set, called United States Code An-
notated, contains each federal statute followed by a summary of all court deci-
sions interpreting that statute. State statutes are similarly available as sets of
books containing all of the statutes for a given state.
Your Local Notes

The set of statutes for your state is:
______________________________________________________________________
______________________________________________________________________
Because legislatures are continually adding new laws and amending and
repealing old ones, sets of statutes are supplemented, usually once a year.
Statute research is never complete until you have checked the supplements!
Statutes are also available on-line or in the form of CD-ROM.
Case law—reported opinions of judges in actual lawsuits—is found in huge
sets of books called reporters. There are reporter sets for each state, for the fed-
eral courts, and for each major region of the country. These, too, are also avail-
able on-line and as CD-ROM sets.
Certainly, some procedural law comes from statutes and case law. The pri-
mary source of procedural law in the federal courts and in the courts of most
states, however, is court rules. Judges, often with the help of committees of at-
torneys and scholars, adopt their own rules for the conduct of cases in their own
courts. The U.S. Supreme Court made the Federal Rules of Civil Procedure, which
prescribe the procedure in all federal courts. Each lower federal court also has
its own rules for any situations not covered by the Federal Rules of Civil Proce-
dure that the local judges consider important enough to need a rule.
Similarly, in most states, the highest court prescribes general rules of proce-
dure that apply to all courts in the state (in a few states, notably California, pro-
cedural rules are established by statute). Lower courts then adopt “local rules”
of their own.
partments, carries them out. Courts—the judicial branch—apply them to in-

dividual cases, interpret them when disputes arise, and enforce them. Thus
courts in our system are rooted directly in Article III of the Constitution itself.
The Constitution does not, however, dictate exactly what kinds of courts
there are to be; neither, in general, do the constitutions of the fifty states. It is
up to Congress and the state legislatures to invent the details of the court sys-
tem. Congress and the legislatures decide which courts should hear which
kinds of cases and supply all of the administrative bureaucracy necessary to
keep a court system running. As for civil procedure, in most states, the courts
themselves make the rules under authority delegated by the legislature or the
state constitution (see sidebar).
Your Local Notes

The general rules of civil procedure in your state are:
__________________________________________________________________________
__________________________________________________________________________
Naturally, the details vary considerably from state to state, and they are in
a constant state of change as legislatures and court rules committees seek to
improve the system and deal with the increasing volume of litigation.
FEDERAL COURTS
We begin with the federal courts, because these are present in every state, and
many state court systems model their procedures after the federal courts.
Federal courts are, of course, those belonging to the federal government, in
contrast to the state courts, which derive their power from state governments
(although they are often actually administered by county governments). In the
federal system and in most states, there are three main “levels” of courts, as
diagrammed in Figure 2–1. First, there is a trial court of general jurisdiction, in
which almost all lawsuits must begin. The trial court is responsible for the
case from the time it begins until a judgment is rendered. Any proceedings to
collect the judgment also take place in the trial court.
Figure 2–1 Federal Judicial System and Flow of Cases to United States Supreme Court
SUPREME COURT OF THE

UNITED STATES
United States Courts of Appeals United States Court of Appeals

12 Circuits for the Federal Circuit
Appeals from United States United States United States United States United States United States
State Courts in Tax Codes District District Court of Court of Court of
50 States, the and various Courts Courts Federal International Veterans
Supreme Court Administrative with Federal with Federal Claims Trade Appeals
of Puerto Rico, Agencies and Local Jurisdiction
and the Jurisdiction Only
District of Federal Trade
Columbia Court Commission Guam 89 Districts in
of Appeals National Labor Virgin Islands 50 States
Relations Board Northern 1 in District of
Immigration and Mariana Islands Columbia
Nationalization 1 in Puerto Rico
Services
Source: United States Administrative Office of Courts.

In the federal system, the trial court is the U.S. district court. As the
name implies, there is a U.S. district court for each federal district; each state
has at least one district, and some of the more populous states have two or
three. Each U.S. district court has a number of judges, who are appointed by
the president and serve for life unless impeached for improper behavior. If
you file a lawsuit in federal court, a U.S. district judge will preside over the
case and conduct the trial. Ordinarily, lawsuits in U.S. district court are
heard by a single judge; in certain special situations, a panel of three judges
may preside.
The second level of courts is responsible for appeals. An appeal is a for-
mal request in which a party asks a higher court to review the decision of a
lower court and change it in some way. Courts that decide appeals are called
appellate courts.
In the federal system, this second level of courts is called the U.S. Court of
Appeals. The U.S. Court of Appeals is divided into eleven geographical regions,
called circuits. Each circuit is responsible for the appeals from all U.S. district
courts within its region (Figure 2–2). (The regions are called circuits because
in times past appellate court judges had to travel from district to district to
hear appeals. Today, they usually stay in one place and make litigants come to
them.) In addition, there is a separate Circuit Court of Appeals for the District
of Columbia, since government activities there produce a great deal of litiga-
tion and there is a federal circuit that hears specialized cases from all across
the country. If you are dissatisfied with the judgment of a U.S. district court,
your appeal will ordinarily be to the Court of Appeals for the circuit in which
your state is included. Lawyers often refer to U.S. Courts of Appeals simply as
a “Circuit”; for example, the U.S Court of Appeals for the Second Circuit, which
hears appeals from districts in New York and several northeastern states, is
referred to in lawyer jargon as “the Second Circuit.”
The highest court in the federal system is, of course, the U.S. Supreme
Court. The main function of the U.S Supreme Court is to offer a final level of
appeal. If you lose your appeal in the U.S. Court of Appeals, you can ask the
U.S. Supreme Court to review the case. In most situations, review by the U.S.
Supreme Court is discretionary; this means that it is up to the Court Putting It
whether or not to hear the appeal. In practice, the U.S. Supreme Court Into Practice:
chooses carefully from among the thousands of cases it is asked to review,
and accepts only a tiny fraction. This is in contrast to appeals to the U.S. Does every state have a
Court of Appeals, which are normally not discretionary; because the U.S. district court? A circuit
Court of Appeals represents the first level of appeal, the court must ordi- court? Where is the
narily hear all appeals. (The U.S. Court of Appeals can, however, impose district court in your
penalties on litigants who waste its time with “frivolous” appeals that are state? Is there a circuit
clearly without merit.) court in your state?
Where is the circuit court
PROCEDURE IN APPELLATE COURTS for your jurisdiction
located?
This book is devoted to trial court procedure. Procedure in appellate courts is
quite different—in general, appellate courts do not hear testimony or receive
evidence, because appellate courts decide only issues of law. Appellate courts
may review lower court decisions on issues of fact, but only to the extent of
determining whether the decision was reasonable based on the evidence re-
ceived in the trial court. Thus, if the appellate court decides that the trial judge
was wrong on some issue of law, the appellate court can change the decision
accordingly; but if the error involved an issue of fact, usually the case must be
returned to the trial court and retried.
Appellate courts are not equipped to take testimony, receive evidence, or
conduct trials; they make their decisions by reviewing the record, hearing ar-
gument, and researching the law. In the U.S. Court of Appeals and most state
appellate courts, appeals are heard and decided by panels of several judges.
24
Figure 2–2
1
The Thirteen Federal Judicial Circuits

PUERTO RICO
WASHINGTON
VIRGIN
ISLANDS 3 1
MAINE
MONTANA NORTH DAKOTA MINNESOTA
VT
OREGON
WISCONSIN
2 NH
Boston
M
IDAHO SOUTH DAKOTA IC
HI
NY MASS
GA
WYOMING N
9 8 IOWA 3 PA
CONN
New York
lphia
NEVADA
NEBRASKA Chicago
IN
DI
6 OHIO
nat
i Philade
DC
NJ
DEL
ILLINOIS AN cin
UTAH Denver A Cin
San St
4
CA
MD
7
LIF
Francisco Louis W VA
COLORADO VA
OR
KANSAS MISSOURI ond

Richm
NI
10 KENTUCKY
A
TENNESSEE NORTH CAROLINA

ARIZONA OKLAHOMA SOUTH
ARKANSAS
NEW MEXICO Atlanta CAROLINA
DC
GEORGIA Washington
M
ISS
ALABAMA
11
ISS
5
IPP
TEXAS FEDERAL
I
LOUSIANA Washington DC
FLO
RID
A
9 HAWAII
9
ALASKA NORTHERN
GUAM MARIANA
ISLANDS
The party who began the appeal—the appellant—furnishes to the court a

written argument, called a brief, detailing the reasons why appellant thinks
the trial court decision was in error. The other party—the appellee—prepares
a brief in response. The court of appeals may schedule an argument, at which
attorneys for each party are given a short time (usually less than an hour) to
explain their arguments and answer any questions that the judges may have.
Or, the court may decide the appeal on the briefs submitted, without hearing
argument. Naturally, there are detailed rules specifying all of these proce-
dures, which we leave for another text.
The decision by the court of appeals usually consists either of affirming or
reversing the trial court’s decision. If the trial court’s decision is affirmed, it
is left unchanged. If it is reversed, the court of appeals will order the trial court
either to change its judgment or to redo the trial. Do not confuse the term re-
verse with the term overrule. Reverse means to change the trial court’s deci-
sion in the case now on appeal. When an appellate court overrules a decision,
it means the court has decided not to follow the rules laid down in some ear-
lier decision. (Recall that in the American system courts rely on earlier pub-
lished decisions as a source of case law.)
STATE COURTS
In most states, the courts responsible for general civil lawsuits are organized
in three levels in a manner similar to the federal courts, that is, a trial court of
general jurisdiction, an appeals court, and a supreme court.
In most states, the trial court is called the superior court. (Exceptions in-
clude New York, where the general civil trial court is called the supreme court,
and Louisiana, whose court system is derived from French law and is based on
a different philosophy entirely.) Throughout this text, to avoid cumbersome
repetition, we will use the term superior court to mean the general civil trial
court of the state, even though it is not called that in a few states. Superior
courts are state courts in the sense that they are created by state law, but
there is usually one for each county, and they are usually funded and admin-
istered by county governments.
Appeals from the decisions of state civil courts are taken to the state court
of appeals (in New York, the appellate division of the state supreme court).
Procedure is similar to that already described for the U.S. Court of Appeals.
State courts of appeals are headquartered in the state’s capital city, and may
have branches in a few other cities in the state.
Each state has a state supreme court (except New York, where the highest
court is called the Court of Appeals) whose function is to hear appeals whose
issues it considers important. State supreme courts are located in the capital
cities of each state.
Each state typically has many superior courts (one for each county) but
only one court of appeals (which may have several divisions or departments)
and one supreme court (Figure 2–3).
A D M I N I S T R AT I O N
There is a great deal more to a court system than just judges conducting trials.
Someone has to keep track of the cases, assign them to judges, schedule the tri-
als and hearings, maintain custody of evidence, make sure that all the papers
filed with the court can be found when needed, and manage all of the other ad-
ministrative tasks without which the system would come to an immediate
standstill. When you consider that a typical urban court system disposes of
Figure 2–3 Hierarchy of State Judicial Systems
THE SUPREME COURT
(Court of final resort. Some states call it Court of Appeals,

Supreme Judicial Court, or Supreme Court of Appeals.)
INTERMEDIATE
APPELLATE COURTS
(Only 23 of the 50 states have intermediate appellate courts,

which are an intermediate appellate tribunal between the trial
court and the court of final resort. A majority of cases are
decided finally by these appellate courts.)
SUPERIOR COURT
(Highest trial court with general jurisdiction. Some states call

it Circuit Court, District Court, Court of Common Pleas, and,
in New York, Supreme Court.)
MUNICIPAL
PROBATE COURT* COUNTY COURT*
COURT*
(Some states call it Surrogate (These courts, sometimes (In some cities, it is customary to
Court or Orphans' Court. It is a called Common Pleas or have less important cases tried by
special court that handles wills, District Courts, have limited municipal justices or municipal
administration of estates, and jurisdiction in both civil and magistrates.)
guardianship of minors criminal cases.)
and incompetents.)
JUSTICE OF
THE PEACE AND DOMESTIC RELATIONS
POLICE MAGISTRATE** COURT*
(Also called Family Court or

(Lowest courts in judicial
Juvenile Court.)
hierarchy. Limited in
jurisdiction in both civil and
criminal cases.)
* Courts of special jurisdiction, such as Probate, Family, or Juvenile, and the so-called inferior courts, such as Common Pleas or Municipal courts,
may be separate courts or may be part of the trial court of general jurisdiction.
** Justices of the Peace do not exist in all states. Their jurisdictions vary greatly from state to state where they do exist.
Source: Law and the Courts, 20 (American Bar Association, 1974).
tens of thousands of cases in a year, and receives millions of pages of filings, it

is obvious that the task of administering the system is a major function in itself.
If the administrative functions of the court system seem uninteresting, con-
sider this: To have a case decided in your client’s favor, you first have to get it
accepted. Keeping cases moving through the system is an important function
of paralegals. Often, understanding the administrative functioning of the court
system and knowing how to get a case scheduled for a particular action at the
desired time can make a significant difference in the overall outcome.
The administrative functions of courts are typically divided among several
entities, including the office of the clerk of the court, the office of the presid-
ing judge, the secretaries and staff of the individual judges, and in many court
systems, a court administrator.
The function of the clerk of the court is to deal with paperwork. Every step
in a lawsuit generates paper, all of which must be filed and kept available for
future proceedings. All papers pertaining to all cases flow through the clerk’s
office. A separate chronological file is kept for each case. The clerk’s office also
has the power to issue routine court orders such as summonses and subpoe-
nas, thus freeing judges from such mundane tasks.
The presiding judge has overall responsibility for the smooth running of
the court system. The presiding judge makes policy decisions about how the
workload is divided among all the judges in the court, which judges are as-
signed to which specialty divisions, and other matters involving the work of
SIDEBAR
Filing
A great deal of the activity in a lawsuit involves the submission of written
material to the court for inclusion in the permanent record of the case; this is re-
ferred to as filing. Papers are filed in a case by delivering them to the office of
the clerk of the court. The clerk of the court is a government official who is ap-
pointed or elected to accept and keep track of the enormous volume of paper
that flows into a typical court system. In most urban court systems, the clerk’s
office is staffed by a number of deputy clerks, and often resembles a bank lobby
with its counters and windows for handling transactions with the public. The
clerk will accept for filing only papers that are in proper form. Local court rules
typically specify formal requirements such as paper size, line spacing, and cap-
tions. A filing fee will also be required for many types of filings.
The clerk of the court keeps a separate file for each lawsuit. Papers filed by
the litigants are added to the file in chronological order and usually indexed.
These files are public records and can be inspected and copied by anyone, un-
less a judge orders particular papers to be sealed. Whenever there is a hearing
before a judge in the case, or when the judge is asked to rule on an issue, the file
may be sent to the judge so that he can quickly become informed about what
the case is about and what rulings have already been made. If there is an ap-
peal, the file can be sent to the appellate court, providing the appeals judges
with a complete record of everything that happened in the case.
You may be curious about who actually goes and stands in line at the clerk’s
office to file the court papers. Busy law offices usually have many papers to file
with the clerk of the court each day, so they employ messenger services or
process service firms to take filings to the clerk’s office. Occasionally, however,
situations will arise in which a lawyer is working feverishly to complete some re-
quired filing prior to a deadline, and a paralegal will be sent rushing to the
clerk’s office at closing time to file the paper. We recommend that you file papers
at the clerk’s office yourself occasionally, so as to become familiar with the
process and the requirements. This knowledge will help you avoid common mis-
takes that can cause the clerk to reject a filing. You can also place yourself in a
position to be very useful to your employer if you make a few friends at the clerk’s
office, so that you have someone you can call and ask when some obscure ques-
tion arises about an office procedure. For example, merely knowing how to get
a paper filed after closing time can be extremely valuable information when
your employer is facing a deadline.
the judges. In some court systems, each case is assigned to one judge, who
conducts all proceedings in that case. The benefit of this approach is that it al-
lows the judge to become familiar with the facts of the case as it progresses.
In other courts, cases are not permanently assigned to one judge; instead,
judges are assigned by function, so that motions will be heard by a motions
judge, discovery disputes by a discovery judge or referee, and trials assigned
to trial judges at the time a case is ready for trial. This system is thought to
promote efficiency by allowing judges to become specialized and ensuring an
uninterrupted flow of work to each judge. In court systems that have court ad-
ministrators, the work of assigning cases to judges and maintaining and
scheduling the case flow is done by the court administrator’s office.
Each judge has his or her own office and staff, typically consisting at least
of a secretary, a bailiff, a court reporter, and one or more administrative clerks.
Federal judges and state court appellate judges also have one or more law
clerks on staff, typically recent law graduates who are hired to do legal re-
search and help write opinions.
The judge’s secretary and clerical staff are important people in litigation,
Putting It because they are responsible for keeping the judge’s calendar and scheduling
Into Practice: most routine activity in the case. Also, rules of ethics prohibit lawyers (and
Why is it important to paralegals!) from engaging in ex parte communications with the judge about a
establish a good working pending lawsuit—that is, speaking to the judge without the opposing attorney
relationship with the having an opportunity to participate. Therefore, if you need to know whether
judge’s secretary and the judge has made a ruling on a particular issue, or whether a particular pa-
office staff? per has been received, or if you need to have a hearing scheduled, or if you
have general questions about preferred practices in this judge’s court, it is the
judge’s secretary or clerk to whom you inquire.
SPECIALTY COURTS
In addition to the normal three levels of courts—one general trial court and
two levels of appellate courts—the federal government and many states have
established other courts to hear particular types of cases. These include, on
the federal level, the U.S. Court of Claims, which hears cases involving claims
against the government; the U.S. Tax Court, which, as the name implies, hears
tax cases; and the U.S. Court of Appeals for the Federal Circuit, which hears
appeals in patent and trademark cases. Another major specialty court is the
U.S. Bankruptcy Court, which hears bankruptcy matters. Many states have
also created specialty courts, particularly for tax cases. What specialty courts
has your state created?
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
The hope is that by specializing in a single type of case, these courts can
make more informed decisions and process cases more efficiently. One side ef-
fect of this specialization is, of course, that procedure in these courts also be-
comes specialized. Procedure in specialty courts, though often similar to that
in general civil suits, is beyond the scope of this text.
Even where separate specialty courts have not been established, the trend
is to organize existing courts in “divisions” devoted to particular types of
cases. On the civil side, state trial courts often have separate divisions for, say,
divorce and probate cases.
We have said little so far about criminal cases. Because this text is de-
voted to civil suits, we limit ourselves to the observation that procedure in
criminal cases, whether heard in the same court as civil cases or in a sepa-
rate court or division devoted exclusively to them, is completely different
from that in civil cases. An entirely separate set of rules governs criminal pro-
cedure, and many of the rules involve difficult constitutional issues pertain-
ing to the rights of accused criminals and prisoners. We make no pretense of
addressing the subject here.
CITY AND SMALL CLAIMS COURTS Putting It

In most metropolitan areas, the volume of civil litigation has increased so rap- Into Practice:
idly that the superior courts simply cannot keep up with the caseload. One Prepare a diagram
way to try to keep the system moving is to separate the smaller cases and send showing the identities of
them elsewhere. Usually the smallest cases—those in which the amount in dis- all the courts in your
pute is a few thousand dollars or less, the precise amount varying with the lo- jurisdiction and their
cality—are not eligible for filing in superior court. Such small claims cases are relationships to one
required to go to another court, such as a small claims court, justice of the another. Where are each
peace court, or city court, depending on the locality. These courts typically of- of these courts located?
fer streamlined procedures designed to adjudicate such cases quickly and
cheaply, often without the involvement of lawyers.
WHICH COURT DO I SUE IN?

Out of all of these courts, how do you decide which one to file your lawsuit in?
At a minimum, you will fall within the geographic area of one federal district
court and one state court. If the suit involves people who live in different
states, or if the acts or events you are suing about happened in another state
or in more than one state, more possibilities may exist.
In general, you are free to file suit in any court that has jurisdiction. Juris-
diction, you may recall, is the power to decide a particular case. There are
rules, which we will cover in detail in Chapter 4, for deciding whether a par-
ticular court has jurisdiction of a given case. In general, the answer depends
on such questions as whether one of the parties resides in the state in which
the court is located (called the forum state); how much money is in dispute;
whether the dispute involves acts or events that happened in the forum state;
and whether the dispute should be decided under federal law, the state law of
the forum state, or the state law of some other state. The goal of jurisdictional
rules is to try to send cases to the court best equipped to resolve them—it
would not be very efficient to ask a New York state court to resolve a dispute
between California residents involving federal law, for example.
The garden-variety lawsuit is a state law dispute between people who re-
side in the same state; then the proper choice of forum is the local superior
court. Complications arise when, for example, one of the parties is a resident
of another state; this can occur when a vacationing motorist is involved in an
auto accident. Similarly, business disputes often arise in transactions that
cross state lines, and may also depend on federal law or the laws of more than
one state. It is possible, and indeed not uncommon, for more than one court
to have jurisdiction over such suits. In that case, strategy enters the picture,
and it is necessary to decide which of the possible choices is likely to lead to
the most favorable outcome for your client. This is sometimes referred to as
forum shopping.
H O W D O I F I N D O U T W H AT
P R O C E D U R E S A P P LY ?
In this text, you will learn considerable detail about the rules of procedure that
govern civil cases in federal court. The basic procedural concepts you will
learn are valid in all American courts, and the details are valid in all federal dis-
trict courts and, with minor modifications, in the state courts of a majority of
the states.
Thus, the broad foundation for your knowledge of procedural law will
be the Federal Rules of Civil Procedure. Future references to the Federal
Rules of Civil Procedure will be in the form of FRCP, Rule _____ . In federal
court cases, you will go directly to the federal rules for your answers to pro-
cedural questions. In many situations, you may find that, although there is
a federal rule that pertains to your particular question, it does not offer
enough detail. Then you resort to secondary sources to help you interpret
the rules.
GENERAL QUESTIONS OF FEDERAL PROCEDURE

If you have a federal procedure question requiring more detail than the
rules provide, a good place to start is a multivolume treatise such as Federal
Practice and Procedure by Wright and Miller. This is like an “encyclopedia”
of federal procedure law and is available in most law libraries. It has a de-
tailed index, and it covers each of the federal rules in numerical order so
that you can proceed directly to the volume you need if you know which
rule applies.
As with many law books, Wright and Miller’s book has pocket parts—a
pamphlet inserted into a pocket inside the cover of the book. The pocket parts
are the publisher’s way of keeping the set up to date without having to publish
entirely new volumes every year. The pocket parts contain any new informa-
tion and cases that appeared after the original volume was published. When
you research, always check the pocket parts; otherwise, you may be relying on
information that is no longer valid.
Another good place to go for more detail on federal rules questions is the
United States Code Annotated (U.S.C.A.). The Federal Rules of Civil Procedure
appear in full after Title 28; the text of each rule is given, followed by the com-
ments of the committee that advised the court when the rule was adopted. Af-
ter each rule, there is a complete, indexed listing of summaries of all cases in
which the rule was interpreted. You can review these summaries (which are
usually called annotations), pick from them the cases that seem to address
your question, and look up the full text of those cases using the citations
given in the annotations. (A citation is simply a short reference giving the
name of the case, which reporter series it can be found in, and the volume and
page number. (See Sidebar on page 32.) Finding a case from its citation is not
difficult, but it is properly the subject of a course on legal research, so we will
not cover it in detail here. The law librarian can show you how to find a case
from the citation if you need help.) When you check the annotations in USCA,
remember to check the pocket parts.
If you follow this systematic approach, you can be reasonably sure that
you have covered all of the case law available up to the publication date of the
pocket parts. In many situations, that is not good enough, though, because
pocket parts may be up to a year old. For absolutely up to the minute research,
you need to consult an on-line database such as Westlaw®.
STATE LAW PROCEDURE QUESTIONS

Each state (except California, which has a procedure code) has adopted rules
of procedure for state courts. These are typically called the (name of state)
Rules of Civil Procedure, and are found in the court rules volume(s) of the an-
notated statutes of the state in question.
When you encounter state law procedure issues, you should first consult
the state rules of procedure and the annotations that follow each rule. Again,
do not forget to check the pocket parts. Where are your state rules of proce-
dure found?
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
A majority of states have adopted the Federal Rules of Civil Procedure,

or some modified version, for use in state courts. The state version is pub-
lished separately, of course, and you should always use the state version
when researching state court procedure issues. However, particularly in
smaller states, many procedure issues will not have been ruled on yet by
state courts, so there may not be any state court cases to find. In states that
use the federal rules as a benchmark for their own rules of procedure, one
solution to this problem is to research the question under the federal rules.
Usually trial courts in such states will accept cases interpreting the federal
rules as authority for how similar state court rules should be interpreted.
Even in states whose rules are not derived from the federal rules, you can of-
ten use cases interpreting similar or analogous federal rules as a part of your
argument.
Another good source of state law procedural information is state bar as-
sociation publications such as handbooks and continuing legal education
course materials. These are available in the law library, and often give “nuts
and bolts” information about how to accomplish various procedural tasks.
ADMINISTRATIVE DETAIL
Neither the Federal Rules of Civil Procedure nor typical state rules of proce-
dure cover the mundane details of clerk’s office requirements. Does this mean
there are no rules and you can do whatever you want? Sorry, but no. Each
Putting It
court adopts local rules of procedure, which dictate such things as the size Into Practice:
and type of paper to be used for court filings; the proper format of court pa- You want to depose a
pers; limitations on how many pages can be submitted; and a great many other witness to an accident.
such details that, if ignored, will result in the clerk’s office instantly rejecting How would you determine
your filing. If, as often occurs, you are trying to get a paper filed shortly before if you have a right, in
a deadline, this can cause considerable consternation! These rules can seem your state trial court, to
incredibly arbitrary at times, but—trust us—arguing with the clerk about it depose this individual?
will get you nowhere. So, get a copy of the local rules for each court in which
you will be litigating, read them, and follow them.
Where do you obtain local rules? The best place is directly from the clerk
or court administrator of the court in question—that way you will be sure
your copy is up to date. Local rules can sometimes be found in law libraries,
but if you rely on this source, be sure to double-check whether there have
been any revisions. What are your local rules of procedure called? Where are
they found?
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
SIDEBAR
Citations
All citations to cases follow this format:
Name Volume Name of Page Court Date
of Case Number Reporter Number Name
As an example, consider the following citation:
May v. West, 695 F.2d 43 (1st Cir. 1998).
This citation tells us that the case of May v. West, (note that case names
are always underlined) can be found in Volume 695 of the Federal Reporter (2d
series) on page 43; it is a First Circuit case and was published in 1998. All cases
published in the circuit courts are found in the Federal Reporter. The reporter has
a first and second series. After publishing a designated numbers of volumes, the
publisher (West) began a second series (indicated by the “2d” in the citation).
Another example is found in the Federal Supplement, which contains all
cases published by the district courts.
Ritter v. Sanchez, 895 F. Supp. 95 (S.D. N.J. 1997).
This case (Ritter v. Sanchez,) is found in Volume 895 of the Federal Sup-
plement on page 95. The decision was rendered in the Southern District of New
Jersey in 1997.
U.S. Supreme Court decisions are published in three reporters: the U.S. Re-
ports (the only official reporter), the Supreme Court Reporter (an unofficial re-
porter published by West), and Lawyer’s Edition (published by the former
Lawyers’ Cooperative). Official reporters (which are published by governmental
agencies) contain only the written decision, whereas unofficial reporters contain
research aids that assist the researcher.
Reported cases for the states follow the same format:
Nocturne v. Chuang, 642 P.2d 136 (Ariz. 1996).
This case is found in Volume 642 of the Pacific Reporter (second) on page
136. It is an Arizona case that was decided in 1996; because the level of the
court is not indicated, we know that the Arizona Supreme Court rendered this
decision. If the decision had come out of the Arizona Court of Appeals, “Ariz. Ct.
App.” would have been indicated in the parentheses.
Nocturne v. Chuang, 642 P.2d 136 (Ariz. Ct. App. 1996).
The other regional reporters are:
Atlantic Reporter
Northeast Reporter
Northwest Reporter
Southern Reporter
Southeast Reporter
Southwest Reporter
Figure 2–4 Courts in Your Locality
Here is a checklist of things you will need to know about the court systems in your area. Space
is also left for any facts your instructor may have about each court.
Federal Court
Name of U.S. District Court having jurisdiction over this geographical area:
Location of courthouse:
Location of clerk’s office in courthouse:
Instructor’s comments:
Name of U.S. Circuit Court of Appeals for this area:

Location:
State Court
Name of trial court of general jurisdiction for your area:
Location of courthouse:
Location of clerk’s office in courthouse:
Name of appellate court to which first appeal is taken:

Location:
Name of state’s highest court:

Location:
Other Courts
Name of court in which small cases would be filed:
Location:
Figure 2–4 provides a place to keep track of pertinent information about your
local courts.
SPECIALTY CASES
Another subject often addressed in local rules is the procedure in specialty
cases such as domestic relations and probate. Such cases often involve spe-
cialized court papers designed to promote efficient processing of that kind of
case; these specialized requirements will be found in the local rules.
Your Local Notes

___________________________________________________________________________
___________________________________________________________________________
Interaction with the court system is a fundamental part of litigation. Communica-
tions with the judge will normally be handled by the lawyer responsible for a case
Putting It (although some jurisdictions are experimenting with rules allowing paralegals to
Into Practice: make certain types of court appearances). Paralegals are often given rather wide
Why is it important for responsibility for administrative interactions with court system staff: scheduling
paralegals to have good hearings, maintaining calendars, making sure required filings are made on time,
management and determining why a case has “gotten stuck” in the system and figuring out what to
“people skills” as well as do to get it moving again, and so forth. The importance of these functions cannot
a good command of legal
procedures and
principles?
ETHICAL ETIQUETTE
T he Model Code of Professional
Responsibility was published by
the American Bar Association (ABA) in
injury to clients. Furthermore, some
states have adopted guidelines
designed to assist attorneys in their use
1969 and serves as a model set of of legal assistants and the ABA has
rules designed to govern the conduct developed Model Guidelines for the
of lawyers. The model code contains: Utilization of Legal Assistant Services
■ Canons, statements of general that states are encouraged to look to
principles; when drafting their own guidelines. The
professional organization for legal
■ Disciplinary rules, rules that are
assistants, the National Association of
mandatory; and
Legal Assistants (NALA), has also
■ Ethical considerations, aspira- adopted Model Standards and Guidelines
tional comments that assist in infor the Utilization of Legal Assistants.
terpreting the disciplinary rules. Both it and the other major paralegal
This code was modified by the professional association, the National
ABA in 1983 and was retitled the Model Federation of Paralegal Associations
Rules of Professional Conduct. The new (NFPA), have created codes of ethics to
model rules are formatted differently guide the actions of their members.
than the model code and no longer Check with your local bar
distinguish between mandatory and association to see if a committee has
aspirational rules although they do been established to deal with legal
contain interpretative commentary. assistants. Has this committee
Most states have patterned their established guidelines for attorneys
ethical rules after the new model working with legal assistants? Does this
rules; some have retained the old committee recommend that legal
model code; California has its own assistants become certified (a voluntary
code based on neither the model code form of recognition of competence in
nor the model rules. certain designated areas of practice)?
Because legal assistants are not Has this committee considered the
attorneys, they are not bound by the licensing of legal assistants (a
ethical rules promulgated by the states. mandatory form of regulation controlled
They are, however, liable for negligent by the government)?
or intentional conduct that causes
Your Local Notes

___________________________________________________________________________
___________________________________________________________________________
be overstated; it does no good to have the city’s most brilliant trial lawyer ready
to try a case if the trial setting has been cancelled because of some scheduling
glitch in the court system. Top litigation firms expect their paralegals to work
proactively with the court system staff to anticipate administrative problems and
keep cases moving through the system in the most advantageous possible way.
PRACTICE POINTERS
To Do Lists
One of the most challenging tasks legal assistants face is organizing their
time. In many firms, they report to several attorneys and must interact with
other legal assistants and legal secretaries. In the course of one day, they can
be assigned numerous tasks by a number of attorneys and need to delegate or
discuss responsibilities with many different people. Details can be overlooked
in the process and deadlines can be easily overlooked or confused.
To facilitate the organization of each day, we encourage you to prepare “to
do” lists that enumerate each task that needs to be accomplished, its pro-
jected date of completion, and its actual date of completion. Using this list can
help you budget your time and can also help keep you on task so that you do
not get distracted by the many demands on your time. Checking off each task
as you complete it provides a feeling of accomplishment and reduces the
sense of frustration you are likely to feel when everything seems to interfere
with your anticipated work plan. The tasks that you do not complete can be
rolled over to the next day, thereby eliminating the risk of forgetting prior as-
signments when new ones are given. By recording both projected and actual
dates of completion, you can begin to assess your efficiency and how realisti-
cally you budget time.
To better evaluate how effectively you are managing your workload, con-
sider adding a column that records the causes of delays. Over time you may
realize that certain people in your office are frequently the cause of your not
being able to accomplish your assignments within your allocated time frame.
By realizing this you can then plan accordingly in the future or come up with
ways to gently and subtly alter the obstructing individual’s behavior. If an at-
torney, for example, consistently fails to respond to you within an agreed on
time limit, thereby precluding you from completing your work in a timely man-
ner, consider gentle (and, if possible, humorous) reminders presented in such
a fashion that she cannot possibly avoid seeing them. Doing this not only
makes you look more efficient and reliable to your supervisor but also better
serves your client.
TECHNO TIP
Today many courts have automated Arizona has automated its system (indi-
their systems and allow for access (but vidual documents cannot be viewed).
not modification) of the court’s files Visit www.supcourt.maricopa.gov/esp/
electronically. Some provide access public.html to see the types of court in-
only to the docket—the names and formation available on the Internet.
dates on which document were filed or Note that attorney calendar information
orders and minute entries entered. is available only to the individual attor-
Others allow the documents to be ney, and even then he must first obtain
viewed, usually as a graphics file. Many his own password. The U.S. Bankruptcy
also show scheduled appearances such Court also has its own computer access
as oral arguments and trial dates. Ac- system called PACER. PACER costs $0.60
cess to the court’s database may be free per minute for access and requires that
or a charge may be made to the viewer. you set up an account prior to obtaining
The Maricopa County Superior Court in a password for access.
S U M M A RY
The United States Constitution is the highest law of the land just as the con-
stitution in each state is the highest law of that state. The courts were created
by the constitution, but the administrative bureaucracy necessary to run the
courts is created by the legislative branch. The highest court of each state is
responsible for creating state procedural rules while the U.S. Supreme Court
wrote the Federal Rules of Civil Procedure.
The federal court system consists of district courts (trial courts), circuit
courts (courts of appeal), and the U.S. Supreme Court. There are eleven circuit
courts plus a Circuit Court of Appeals for the District of Columbia and a fed-
eral circuit court for specialized cases. The appeal process ends with the U.S
Supreme Court, which accepts only a small fraction of the cases it is asked to
review. Federal specialty courts include the bankruptcy and tax courts, the
U.S. Court of Claims, and the U.S. Court of Appeals for the Federal Circuit.
Appellate courts review the trial court record, hear oral arguments, and
research the law to arrive at their decisions to either affirm or reverse the de-
cision of the trial court. They focus on issues of law and can review issues of
fact only to the extent they decide that the trial court’s decision was reason-
ably based on the evidence presented at trial. Appellants and appellees may
present briefs but can only make oral arguments if the court allows them. Most
states mirror the federal system with trial courts (usually called superior
courts), courts of appeal, and a supreme court (except in New York where the
highest court is the court of appeals). Claims below an established threshold
amount are often tried in small claims, justice of the peace, or city courts.
The administrative function of the courts is a vital aspect of the system
that is essential to the efficient management of thousands of cases. The court
clerk is responsible for dealing with all of the paperwork generated by cases,
has the authority to issue summonses and subpoenas, and is the official with
whom all court documents are filed. The presiding judge decides how the
workload will be distributed among judges, and the court administrator as-
signs judges to cases and maintains the case flow. The judge’s clerical staff
maintains the judge’s calendar and answers questions from parties so that
they do not interact ex parte with the judge.
A plaintiff can sue in any court that has jurisdiction. Jurisdiction is de-
pendent on the residence of the parties, how much money is in dispute,
whether the dispute involved acts or events in the forum state, and whether
the dispute should be decided under federal or state law. Looking for the court
that will provide the optimum results is called forum shopping.
More detail about the federal rules can be found in Federal Practice and Pro-
cedure by Wright and Miller or in the United States Code Annotated (U.S.C.A.).
The state procedural rules can be found in their Rules of Civil Procedure publi-
cation as well as the court rules volume of the annotated state statutes. All of
these resources can be updated by looking at the pocket parts. Compliance with
the local rules, which dictate such things as paper size and format for court fil-
ings, can prevent the rejection of these filings by the court clerk’s office.
KEY TERMS
Affirm Circuit Filing

Annotation Citation Forum shopping
Appeal Discretionary Forum state
Appellant District court Overrule
Appellate court Federal court Reverse
Appellee Federal Rules of Civil State court
Brief Procedure (FRCP) Trial court
REVIEW QUESTIONS
1. Who creates the details of the court system? 7. What is the function of each of the following:
Who creates the procedural rules that govern a. Clerk of the court
the courts? b. Presiding judge
c. Judicial secretary
2. What are the three levels of courts in the federal d. Specialty court
system? e. Small claims court
a. What is a circuit?
8. How are court papers filed?
b. How does a district court differ from a cir-
cuit court? a. Are court files public records?
c. Are appeals before a U.S. Circuit Court of Ap- b. Why is it important for paralegals to know
peals typically discretionary? What about their way around the court clerk’s office?
appeals before the U.S. Supreme Court? 9. What is the goal of jurisdictional rules?
a. Give examples of the factors that go into de-
3. How do the three levels of state courts compare
termining what the appropriate jurisdiction is.
with the three levels of federal courts? Is the or-
b. What is the forum state?
ganization of court systems uniform from state
c. What is forum shopping?
to state?
10. What source would you consult first to answer
4. How is an appellate judge’s treatment of ques- a federal procedural question?
tions of law different from her treatment of a. If you cannot find the answer there, what
questions of fact? sources might you next consult?
b. What source would you consult first to an-
5. What is the difference between “reversing” a de- swer a state procedural question?
cision and “overruling” a decision? c. Where can you get a copy of the rules that
govern the court clerk’s office?
6. Why is it important for paralegals to under-
stand the administrative functioning of the 11. Why are the paralegal’s administrative interac-
court system? tions with the court system so important?
PRACTICE EXAM
1. The courts 6. The court clerk

a. were created by the legislative branch. a. handles all the papers pertaining to a case.
b. interpret the laws created by the legislative b. can issue subpoenas and summonses.
branch. c. is the one with whom all court documents
c. are independent of the other two branches are filed.
of government. d. all of the above.
d. none of the above.
7. The presiding judge
2. Federal statutes a. is always responsible for assigning judges to
a. can be found in the United States Code. cases.
b. must be continually updated. b. decides how the workload is to be divided
c. are available on-line. among judges.
d. all of the above. c. assigns judges to specialty divisions.
3. In the federal system d. all of the above.
e. b and c.
a. all cases begin in the circuit courts.
b. there are district courts. 8. Examples of specialty courts include
c. district court judges serve for life. a. bankruptcy courts.
d. all appeals heard by the circuit courts are b. U.S. Court of Claims.
discretionary. c. U.S. Court of Appeals for the Federal Circuit.
4. Appellate courts d. U.S. Court of Appeals.
e. a, b, and c.
a. focus on resolving issues of fact by receiving
evidence and hearing testimony. 9. Small claims cases
b. must return cases to the trial court to be re- a. can be tried in justice of the peace or city
tried if they determine that an error was courts.
made regarding an issue of fact. b. are usually eligible for filing in superior
c. are comprised of panels of judges. court.
d. make decisions by reviewing the record and c. involve procedures that often complicate
hearing arguments. the process.
e. c and d. d. none of the above.
5. The administration of a court system 10. Jurisdiction is dependent on
a. oftentimes involves the handling of tens of a. which laws will be used to decide the case.
thousands of cases. b. where the acts or events involved in the dis-
b. is one thing a legal assistant need not know pute occurred.
anything about. c. where the parties reside.
c. deals only with the scheduling of trials and d. all of the above.
the assigning of cases to judges.
d. is a relatively minor aspect of the court system.
FILL IN THE BLANKS

11. The ultimate law of the land in the United States 15. The trial court in the federal system is called a
is the _______________ . _______________ court; the appellate court is
called _______________ .
12. Under the doctrine of _______________ , the
functions of the judicial, legislative, and execu- 16. Each _______________ court is responsible for
tive branches of government are divided. all of the appeals from all of the district courts
13. The _______________ Court created the Federal in its region.
Rules of Civil Procedure.
17. At the appellate level, the _______________ ,
14. All cases must begin in a _______________ who is beginning the appeal, must file a
court while all appeals must be heard by a _______________ with the court, detailing the
_______________ court. reasons why it believes the trial court was in
error, and must allow the _______________ to 23. The state in which the court is located is re-
respond. ferred to as the _______________ state; shop-
ping for a court that will lead to the most favor-
18. An appellate court that changes a trial court’s able results for the plaintiff is called
decision is said to have _______________ that _______________ .
decision but an appellate court that decides
not to follow the rules laid down in a previous 24. To find out some detail about a federal rule you
decision is said to have __________________ could consult _______________ or in the
that decision. _______________ ; to update your research in
this treatise you would need to look at the
19. The function of the _______________ is to han- _______________ .
dle paperwork.
25. In the U.S.C.A. you find _______________ , which
20. The overall responsibility of the _______________ is a collection of summaries of cases following
is to make sure the court system runs smoothly. each procedural rule; you can find those cases
21. It is the judge’s _______________ who is responsi- using _______________ , which are short refer-
ble for maintaining the judge’s calendar and the ences, giving the name of the case and the re-
person to whom attorneys should direct ques- porter in which it is found.
tions regarding the status of a judge’s ruling. 26. The _______________ rules of procedure dictate
22. An attorney is prohibited from having the proper format of court papers, the size and
_______________ communications with a judge, type of paper to be used, and other details re-
that is, discussing a case with a judge outside lating to requirements set forth by the court
the presence of opposing counsel. clerk’s office.
TRUE OR FALSE
27. The U.S. Constitution controls all other laws. 37. An appellate court must allow parties to pre-
T F sent oral arguments. T F
28. The executive branch of government carries 38. In all states the trial court is called the superior
out the laws created by the legislative branch. court and the highest court is called the
T F supreme court. T F
29. The state legislatures and Congress must de- 39. Superior courts are usually created by state law
cide which cases the courts will hear. T F but funded and administered by county gov-
ernments. T F
30. Case law can be found in the United States Code
or the United States Code Annotated. T F 40. The court administrator is responsible for han-
dling all of the administrative functions of the
31. The primary source of federal procedural law is courts. T F
court rules. T F
41. The benefit of assigning one judge to a case is
32. Most state procedural rules are created by the that the judge becomes familiar with the facts
highest court in the state. T F of the case as it progresses. T F
33. The U.S. Court of Appeals is divided into thir- 42. Assigning judges by function rather than by
teen circuits. T F case arguably promotes efficiency in the court
34. Most appeals to the U.S. Supreme Court are dis- system. T F
cretionary. T F 43. Papers filed with the court clerk’s office are con-
35. The U.S. Supreme Court accepts almost all of sidered public records. T F
the cases that are presented to it for review. 44. Legal assistants rarely need to file papers with
T F the court clerk so having a working knowledge
36. Appellate courts focus on issues of law. T F of the court clerk’s office is not important.
T F
45. Electronic access to court files is prohibited by before looking at the Federal Rules of Civil Pro-
case law. T F cedure. T F
46. The procedures in specialty courts may differ 49. The Federal Rules of Civil Procedure are irrele-
somewhat from the procedures employed in vant to any procedural issue at the state level.
other civil courts. T F T F
47. The goal of jurisdictional rules is to send cases 50. Failure to comply with the local rules of proce-
to courts that are most convenient for the par- dure can result in the court clerk rejecting your
ties. T F filing. T F
48. When researching state procedural issues, con- 51. The local rules are not written down anywhere.
sult the state version of the procedural rules T F
LITIGATION LINGO
Read the description and provide the word that matches that description.
WHAT’S MY NAME?
1. I help you locate cases in law reporters.
2. I am the trial court at the federal level.
3. I am a written argument prepared for the appellate court.
4. I am the person who has to respond to number 3.
5. I am the summaries of cases found in the U.S.C.A.
6. I am the state in which the court is located that is hearing a case.
7. I am the judge who is responsible for the smooth running of the courts.
8. I am the person who is most likely to reject your court filing.
9. I am the court where cases involving relatively small amounts of money are heard.
10. I am one of the eleven geographical regions into which the U.S. Court of Appeals is divided.
11. I am what an appellate court judge does when she changes the trial court’s decision in a case up on ap-
peal.
12. I am one of the rules that dictates the required format for a document that is about to be filed.
13. I am a type of appeal that a court can decide to hear or not to hear.
14. I am responsible for maintaining the orderly flow of cases and for assigning cases to judges.
15. I am the one you contact if you have a question about whether the judge has received a particular doc-
ument or if you want to know how the judge prefers to set up exhibits during trial.
16. I am a treatise you could consult if you wanted to find out more about a particular federal rule.
17. I am where you would look if you wanted to update the rule you looked up in number 16.
For each question give the rule of civil procedure in your jurisdiction that applies and then answer
the question.
1. Suppose the drunk driver that sideswiped your 2. You have just been hired at a personal injury
car (hypothetical situation at the beginning of firm. As part of its orientation the firm takes
Chapter 1) was an undercover police officer you down to the court clerk’s office. What kinds
whose residence was in another jurisdiction of questions will you ask of the deputy court
and whose act of hitting you constituted a tort clerk?
under the Federal Tort Claims Act. What courts
3. Your supervising attorney asks you to research
could you possibly sue in? What would you
a federal rule in reference to discovery. Where
have to know to make your decision about
will you look?
where to sue?
1. Consider the hypothetical situations given at c. Cousin refuses to pay you a percentage of
the beginning of Chapter 1. Can you think of any his business.
reason you might choose to sue in federal court d. Karate instructor breaks your nose.
in any of those situations? If you opted to sue in e. Contractor does shoddy work on house.
state court, what factors would determine 2. Visit the federal court, state court, city court,
whether you sued in a small claims court or and small claims court in your jurisdiction. Lo-
trial court? cate the court clerk’s office and ask for a copy
a. Drunk driver sideswipes your car. of the local rules.
move out.
CHAPTER
3
ROAD MAP
OF A LAWSUIT:
PREFILING
PREPARATION
AND PLEADINGS
OBJECTIVES
■ What happens in the beginning

stages of a typical lawsuit
■ What tasks need to be completed

before suit is filed
■ How a lawsuit is started
■ What pleadings are and what goes

into them
■ What paralegals do in the early stages

of lawsuits
44 CHAPTER 3 Road Map of a Lawsuit: Prefiling Preparation and Pleadings
The discussion of the next few chapters will draw examples from the following
narrative. The people, places, and occurrences described are entirely ficti-
tious. We have chosen to place these events in particular named states be-
cause the alternative of inventing fictitious states would make the narrative
awkward. In describing the litigation that might result from this hypothetical
situation (or “hypo,” in the jargon of law students everywhere) we will refer to
the courts of the states named; the procedure we describe, however, is that of
a generic federal district court or of a generic state court in a federal rules
state. It is a composite of common procedural practices taken from various
courts. For details applicable to a specific court, you should refer to that
court’s rules.
hypothetical
Shannon’s Ordeal
S hannon was not sure, afterward, what had awakened her. It might have
been the muted swish of the solid hotel room door opening over the thick
carpet, or the rustle of the curtains as the light summer breeze wafted mo-
mentarily through the open window, or perhaps it was the change in pitch of
the traffic sounds from the nearby freeway. Shannon shifted restlessly under
the single sheet, and blinked as she struggled to make out the luminous dig-
its of her designer wristwatch—one-fifteen in the morning. She groaned qui-
etly, willing herself to go back to sleep, needing to be sharp for her sales
presentation at nine o’clock tomorrow morning—no, she corrected herself,
this morning.
Suddenly, Shannon was seized with the certainty that she was not alone
in the room. Afraid of making noise and alarming the intruder, she silently
opened her eyes. Her breath caught in her throat as she observed the tall man
standing at the foot of the bed, his back to her, removing first his trousers, then
his boxer-style underwear.
She had to do something—quickly, now, think! Where had she left her
purse? In the bathroom . . . no! There it was, on the bedside table, a few feet
away. Silently, silently, feigning sleep, she edged to her right, toward the bed-
side table, reaching for the purse. . . . Miraculously, the intruder still had his
back turned, taking his time . . . a few seconds more . . . quietly opening the
flap of the purse. . . .
Then, everything happened in a blur. Shannon withdrew the cheap “Sat-
urday Night Special” 0.22-caliber revolver from her purse as the intruder
turned toward the bed. Shannon aimed at the intruder’s chest and pulled the
trigger. The hammer fell with a harmless click. The intruder, startled, froze
for a moment. Shannon pulled the trigger again, pulling the shot low and to
the right, this time striking the tall man in the side. The intruder yelled in pain,
threw himself on top of Shannon before she could fire again, and wrenched
the gun from her hand. Shannon screamed as her forefinger, caught in the trig-
ger guard, broke with an audible snap.
Shannon’s mind had already begun shutting out the reality of the inevitable
violation, so it took a moment for the intruder’s words to register. “What the
devil is the matter with you, you . . . crazy. . . .” Then, bleeding profusely from
his gunshot wound, the tall man collapsed on top of her, unconscious.
Crazy with fear, Shannon wriggled out from under her attacker. She ran
from the room and, bypassing the elevators as too slow, raced down the fire
stairs to the lobby.
Arnie Trevayne, stuck with the graveyard shift at the front desk this week,
knew he was in deep trouble the minute he saw Shannon burst hysterically
from the stairwell in her nightgown. The tall man, Dr. Art Collins, here in Las
CHAPTER 3 Road Map of a Lawsuit: Prefiling Preparation and Pleadings 45
Vegas for a medical convention, had returned from a late dinner, stopped at
the desk, and asked Arnie for his room key. The elevator doors were closing
behind Dr. Collins when Arnie realized his mistake. Arnie thought of rushing
after the doctor, but he really shouldn’t leave the desk—there were no other
hotel employees around at that time of night. Anyway, the man would cer-
tainly return when the key failed to open his door.
Except it wasn’t Dr. Collins who was now running toward him, it was that
sales executive lady from the room next to Dr. Collins—the room whose key
Arnie had mistakenly given to Dr. Collins. She was screaming incoherently,
something about calling the police.
Quickly weighing his options, Arnie dialed 911.
Then he calmly palmed the key to Dr. Collins’s room—the correct key this
time—took the service elevator to the fourth floor, entered Shannon’s room,
and quickly spotted the room key laying on the dresser.
Arnie didn’t hesitate. He switched the keys, left the room, and was back
at the registration desk before the police arrived.
THE PHASES OF A L AW S U I T
Most of us have a general idea what it means to sue someone. The aggrieved
party goes to a lawyer and “files suit”; two or three commercials later, there is
a trial, in which two lawyers extract the real truth from a few witnesses by
clever questioning, then deliver impassioned and eloquent arguments to a jury.
The jury returns a verdict, there is a winner and a loser, and the suit is over.
There is, as you would expect, a great deal more to litigation than that. Tri-
als make exciting television, but most of the important activity in a lawsuit—
meaning the activity that determines who wins or loses—happens long before
the trial begins, some of it even before suit is filed.
Lawsuits come in all shapes and sizes; some end quickly, others drag on for
years or even decades. It may surprise you that very few end in a jury verdict;
many more are settled somewhere along the way. Outcomes are rarely as sat-
isfyingly decisive as depicted by Hollywood. To a determined litigant, an ad-
verse jury verdict merely marks the beginning of another phase of the conflict.
Nevertheless, most lawsuits follow a rather predictable path. Many varia-
tions are possible, but the broad outlines are dictated by the rules of proce-
dural law. We now tour some of the main landmarks along that path, using as
a point of departure the “hypo” related at the beginning of this chapter.
Our exploration generally follows along the route laid out by the descrip-
tions of the phases of a lawsuit from Chapter 1 (see Figure 1–1). We reiterate
that you should not attach too much importance to the sequence of events; in
most lawsuits, many tasks occur simultaneously, rather than in sequence.
As Shannon entered the Phoenix law offices of Simon and Porter, the first
thing she noticed was the statue of the blindfolded goddess holding the scales
of justice, prominently displayed on a pedestal in the reception area. Perhaps
it was a good omen, she reflected bitterly—she certainly hadn’t seen much
justice so far, in the two weeks that had passed since what she had come to
think of as The Ordeal.
Physically, Shannon was a wreck. Each night, around two in the morn-
ing, overcome by exhaustion and lulled by the sound of the television that
she now left on continuously for company, she would drift into a troubled
and restless sleep, only to be jerked bolt upright minutes later, heart pound-
ing in terror, gripped by the vivid image of the tall man as he threw himself
on top of her yet again in her imagination. Her broken finger throbbed with
pain, but the pain pills seemed to intensify the panic attacks, so she avoided
taking them.
Shannon tried earnestly to continue her demanding schedule of sales
meetings and product demonstrations without interruption. But when, for the
second time, she burst spontaneously into fits of weeping in the midst of her
presentation, Shannon’s sales manager gently but firmly insisted that she
take a leave of absence, to “get some rest, get yourself back together”—which
only made the situation all the more unbearable. Her job had provided at
least some distraction, some escape from the endless mental replays, and,
worse, without the continual infusion of sales commissions from new ac-
counts, Shannon’s income would quickly dwindle.
The police investigation, far from being a source of satisfaction and com-
fort, had merely added another dimension to Shannon’s distress. She had co-
operated fully when the first police officers arrived at the hotel, expecting
sympathetic treatment. The officer’s words still echoed in Shannon’s mem-
ory: “Shannon Martin, you are under arrest for aggravated assault and bat-
tery and illegal discharge of a firearm. . . . You have the right to remain
silent. . . .”
“But I’m the victim!” she had wanted to scream. They had waited for a
woman officer, who drove her in a police car to the hospital to have her bro-
ken finger set. Then she had sat for what seemed like hours in a locked room
at the police station.
Finally, with the sun’s first rays penetrating the room’s grimy barred win-
dow, a well-dressed woman appeared. “I’m Detective Sergeant Marnell, with
the Las Vegas Police Department. . . .” Something about an investigation.
“You’re free to go, but please stay in touch.” Shannon had a thousand ques-
tions, but the impulse to escape, to get out of there as fast as possible, was so
intense that she mutely collected her belongings, rushed outside, and flagged
down a cab to the airport, where, after waiting two hours, she was first in line
to board the 8:00 A.M. flight back to Phoenix.
Since then, she had called every day, persisting in the face of Detective
Marnell’s thinly veiled impatience. Had her attacker been arrested? Did they
need her to file charges? “These things take time. . . .”
Finally, today, as Shannon sat in her kitchen, her thoughts drifting from
the mindless babble emanating from the television, something snapped. With
sudden resolve, she opened the yellow pages, chose a number, and dialed.
Now, a few hours later, Shannon strode resolutely up to the receptionist’s
desk. “My name is Shannon Martin. I have an appointment with Allen Porter.”
PREFILING PHASE
Meeting Shannon for the first time, Allen Porter will have little or no idea why
she has decided to see a litigator. The first step is to interview his prospective
client and get enough of the facts to allow him to decide whether there is a po-
tential lawsuit lurking amid the confusion, and, if so, whether it is one that he
should undertake. If any of Shannon’s claims might create conflicts of interest
with other clients of his firm, or if her case presents too many issues outside
his area of expertise, he will decline the representation and offer to refer her
to another attorney.
If he accepts the case, the next task is to obtain whatever pertinent infor-
mation Shannon herself can provide. Often, there will be important gaps in the
client’s knowledge of the facts. Shannon, for example, can tell her lawyer vol-
umes about what happened to her and how it has affected her life, but she sim-
ply does not know many of the facts that will be needed to prepare a lawsuit—
she probably does not even know who she should sue.
One of Allen Porter’s first duties, therefore, will be to obtain more detailed
facts from other sources. With the facts in hand, he will be better equipped to
make strategic decisions about how best to carry out the suit, as well as to at-
tempt settlement if feasible.
Allen Porter looked up from his notepad as Shannon finished speaking and
smiled reassuringly. “It certainly sounds as though you ought to sue someone—
I’m just not sure who, at this point.” He paused, waiting for Shannon to make
eye contact. “Why don’t we see if Detective—Marnell, right?—Detective Mar-
nell is in, maybe she can fill in some of the blanks.” He looked at his notepad
again, then reached for the telephone.
INVESTIGATION AND FACT GATHERING

How much does the lawyer or paralegal need to know about the facts of a case
before filing suit? How much investigation is necessary to do?
First, a certain minimum level of factual information is necessary merely
to be able to draft a complaint. You need to know the names and residences of
the people you are suing. You need to have a clear idea of “who did what to
whom,” so that you can draft the part of the complaint that describes what the
dispute is about. Ethical rules and FRCP, Rule 11(b), require that a lawyer sign-
ing a complaint have a reasonable basis for believing that the claims made are
well grounded, both factually and legally.
Your Local Notes

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You are probably thinking that it would not be very difficult to obtain this
minimal information, and you are right. In garden-variety auto accident cases,
the information needed to draft a complaint can often be obtained from the po-
lice report. There are often good reasons to do considerably more investigat-
ing before suing, however.
Modern courts generally take a somewhat active role in moving cases
through the system. Lawyers are expected to prepare cases for trial diligently
once suit is filed, and most courts require particular tasks in the preparation
of the case to be completed within specified time periods after suit is begun.
Many courts have adopted rules requiring each party to give written disclo-
sure, within the first few months after suit is filed, spelling out in detail exactly
what each party’s claims are, what written evidence exists, what witnesses
might be called, and what information each witness has about the case. At this
stage, lack of preparedness can carry a heavy penalty: Parties may be barred
from using evidence that is not promptly disclosed.
Your Local Notes

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The point is that once suit is filed, there will be a great deal of pressure to
meet various deadlines, so it is an advantage to prepare as much material be-
forehand as possible. Ideally, plaintiff’s attorney would prefer to delay filing
until she is fully familiar with the case, has reviewed all the evidence, has
planned a strategy, and can easily meet the court-imposed disclosure and
other deadlines with a minimum of last minute scrambling. Other considera-
tions often preclude an ideal level of prefiling preparation, but, in general, an
early and thorough factual investigation may give one contestant a nearly un-
beatable edge, whereas a poor or careless one may create an insurmountable
handicap.
Shannon waited expectantly as Allen Porter thanked Detective Marnell
and hung up the telephone.
“Okay, I think the picture is becoming a bit clearer now. It seems that Dr.
Collins—the man in your room—thought he was going into his own room. He
picked up his key from the front desk when he came in, and he swears he
used it to open your door. You were in 407, he was in 409, right next door.
He’s recovering, by the way—it looks as though he’ll get out of the hospital in
another week or two.”
Putting It
Shannon interrupted, “Are they going to arrest him? They wouldn’t tell me.”
Into Practice:
“They don’t think that they have any grounds for arrest. They believe Dr.
Why might Allen Porter
Collins, that it was a mistake. He’s a prominent physician in Dallas, a family
have reservations about
man, nothing at all in his background to suggest this kind of thing. The big
suing at this point? Are
question is, how did he get into your room? The Banbury Park Hotel people
there any ethical
are apparently saying that you must have left the door ajar and forgotten to
considerations for him
lock it.”
to ponder?
Shannon exploded. “That’s a lie. I checked it twice before I went to bed.
I’m practically paranoid about that. Why do you think I bought a gun?”
STRATEGIC DECISION MAKING

A number of strategic decisions must be made before suit is filed, and these,
too, require a thorough knowledge of the facts of the case.
Who, for example, should Shannon sue, and what claims should she make?
Should she sue Dr. Collins? For battery? For negligence? Is he liable, even if he
entered Shannon’s room by mistake? Should she also sue the hotel? How
would you sue the hotel? Is Banbury Park a corporation, or a partnership, or
what? Does she sue its partners or shareholders too? If the hotel turns out to
be a locally owned franchise, can she sue the parent company? Should she sue
Arnie Trevayne, the desk clerk? On what grounds?
And what about the less obvious targets? (How many can you think of?)
Should Shannon consider suing her employer? Her supervisor? The Las Vegas
Police Department? The officers that arrested her? The insurance companies
that insure the various potential defendants? The medical group that employs
Dr. Collins? Dr. Collins’s wife (Texas is a community property state)? Can Shan-
non sue the Phoenix pawnshop that sold her the misfiring handgun? The man-
ufacturer of the handgun?
In what court should suit be filed? Depending on the facts, Shannon may
have the option of suing in federal court or in the state courts of two or more
states. (We will see why this is so in Chapter 5.)
What relief should Shannon ask for? Her medical expenses? Psychiatrist
bills? Damages for pain and suffering? Punitive damages? Can she claim dam-
ages for the commissions on the sales she would have made had she contin-
ued working without interruption? For the slight but permanent stiffness in
her finger after it heals?
These questions involve mainly issues that are substantive, not proce-
dural, but they need to be answered before a complaint can be properly
drafted. Shannon’s complaint must, among other things, state who she is su-
ing and what she is asking the court for. Each question will require factual in-
vestigation and legal research before a dependable answer can be given.
We do not mean to imply that these decisions are forever carved in stone
and unchangeable after suit is filed. Within limits, complaints can be amended,
parties and claims can be added and deleted. It is sometimes necessary to file
suit quickly and fill in the gaps later. Amending the complaint usually requires
the opponent’s acquiescence or the judge’s permission. Agreement to amend
from the defendant will be hard to come by if the changes benefit the plaintiff,
so it is far better to get it right the first time if possible.
PREREQUISITES TO SUIT
Injured parties are not always free to fire off a lawsuit as their first offensive
move. There is a category of suits, usually involving situations that come
under the regulation of some government agency, in which the aggrieved
party must first “exhaust administrative remedies.” Injured employees cov-
ered by workers’ compensation laws, for example, are usually prohibited
from suing their employer; they must instead apply for compensation from
the workers’ compensation fund. Resort to the courts is possible only after
the applicable state agency has made its decision. Claims involving illegal
discrimination often must first be brought to the Equal Employment Op-
portunity Commission or other administrative agency having jurisdiction;
the agency in question must investigate and give permission before the ag-
grieved party can sue.
Suits against government agencies and departments are particularly de-
manding of careful pre-suit planning. Historically, the government was im-
mune from suit altogether. Although this absolute sovereign immunity no
longer applies, vestiges remain in the form of statutes that require anyone in-
tending to sue an agency of the government to give notice of his or her claim
before filing suit. Prerequisites for suit against the federal government are
found in the Federal Tort Claims Act. State, county, and city requirements, if
any, vary from place to place. Notices of claims must be in the correct form
and delivered to the correct government official within the allowed time pe-
riod, which is typically short. Often, even a seemingly trivial defect in the no-
tice will cause the suit to be dismissed, perhaps forever. If Shannon sues the
Las Vegas Police Department for false arrest, her lawyer will need to comply
carefully with any notice of claim requirement.
Your Local Notes

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Putting It
These examples are intended as a small sample of the kinds of prerequi- Into Practice:
sites to suit that may exist. Obviously, it is impossible to provide an exhaus- Why might a commercial
tive list, because each case presents its own factual problems. But the attor- litigator find it difficult to
neys defending the suit will be combing the facts in search of any basis on represent an employee
which to get the case dismissed quickly, so the prudent plaintiff’s attorney will alleging discrimination?
do everything possible to avoid giving the defense any ammunition.
POSITIONING THE CASE

The pre-suit phase also represents an opportunity for the attorneys on each
side to try to “engineer” the factual development of the case. Once an attorney
knows an opposing party is represented by an attorney, ethical rules prohibit
direct contact. (It is, of course, also unethical for an attorney to have a parale-
gal do something that the attorney could not ethically do.) Before suit is filed,
however, the attorney or paralegal can usually contact others involved in the
dispute, obtain statements, and ask for information. In accident cases where
one of the drivers is insured, it is commonplace for insurance company repre-
sentatives to take statements from all drivers and witnesses. The purpose is
not merely to determine the facts, but also to record important observations in
a way that precludes one’s opponents from inventing more convenient ver-
sions later.
“Hi, I’m Chuck Fletcher. I have a reservation.”
The desk clerk handed him a card. “Here, fill this out.”
“I heard you had some excitement here a couple weeks ago.”
“Yeah, some woman left her room door open, and this other guy, it’s late
at night, he goes in there by accident, and the crazy bimbo shoots him.”
“No kidding! She left her door open? In the middle of the night? Strange!”
“Yeah, well, you know, this is an old hotel, some of the doors, they don’t
always close all the way by themselves. She probably didn’t realize.”
Chuck Fletcher accepted the proffered key from Arnie Trevayne. As he
walked toward the elevators, he made detailed notes of the conversation.
SETTLEMENT NEGOTIATIONS
A reasonable settlement is almost always better than a lawsuit, even for the
winner of the lawsuit. Litigation is expensive and time consuming and dis-
tracts the litigants from their regular pursuits, and the emotional toll can be
devastating. Filing a lawsuit tends to cause a degree of polarization of the par-
ties that may make settlement more difficult; hence, if any possibility of set-
tlement exists, it should be explored before suit is filed unless there are strong
strategic reasons not to. Even if settlement is not feasible, it may be to the ben-
efit of both parties to consider some form of alternative dispute resolution,
such as arbitration or mediation.
One way of initiating settlement negotiations is through the use of a de-
mand letter. Pre-suit demand letters are routinely used in auto accident cases
and other tort suits where insurance companies will be calling the shots on the
defense side.
In multiparty disputes, pre-suit settlement takes on another dimension:
Parties may find it advantageous to settle with one potentially adverse party,
Putting It so as to be able to join forces against a third. This is particularly common
Into Practice: among codefendants. For example, even though Banbury Park Hotel has a po-
Would this be an tential claim against its negligent employee, Arnie Trevayne, the hotel’s
appropriate time for lawyers will certainly reach some accommodation with Arnie. Otherwise, he
Shannon to offer to might decide to settle separately with Shannon, and testify in her favor. For
settle with the hotel? this reason, employees who subject their employers to lawsuits often enjoy
great job security—at least until the suit is over!
OTHER CONSIDERATIONS
Proper technical preparation is not, of course, an excuse for procrastination. In
most cases, the need for pre-suit preparation must be balanced against the need
to maintain momentum. An opponent who carries out each task decisively and
without delay will likely be taken as a more credible threat than one who is long
on talk but short on action. Another possible reason for speed in filing is to pre-
empt action by the other party. With many disputes, suit could be brought by ei- Putting It
ther party. In our hypothetical situation, we have been assuming that Shannon Into Practice:
would file suit first. But it is equally likely that some other party—Dr. Collins, for On what grounds could
example—may get to the courthouse ahead of Shannon, if for no other reason Dr. Collins sue? What
than to seize the initiative in deciding which court to litigate in. damages could he allege?
ROLE OF THE PARALEGAL

Attorneys often rely heavily on the assistance of paralegals in managing pre-
suit preparation. Merely having access to a complete and well-organized set of
pertinent documents can be an enormous advantage. In offices that concen-
trate on particular types of cases, such as automobile accident or debt col-
lection practices, a case management system will often be in place, with es-
tablished procedures and checklists to ensure that routine pre-suit
requirements are completed in each case. In practices involving a greater va-
riety of cases, or cases of greater procedural complexity (such as our hypo!),
considerably more individualized judgment and planning may be required. In
either situation, paralegals can make an important contribution, not merely by
performing assigned tasks, but also by seeking to identify requirements that
may have been overlooked, and by paying close attention to the progress of
each task, so that filing of suit will not be unnecessarily delayed by some item
that has “fallen through a crack.”
In practices involving a high volume of individual clients, such as per-
sonal injury and divorce practices, a good deal of the pre-suit factual workup
Putting It
and case screening may be assigned to paralegals. Paralegals may be as-
signed to interview clients and prospective clients, often with the aid of an in-
Into Practice:
formation checklist or questionnaire, for the purpose of obtaining the factual If you worked as a
data necessary to prepare the suit for filing, and perhaps to help decide which paralegal for Allen Porter,
cases to accept. how could you assist at
this stage of Shannon’s
“Shannon, thank you for coming in. I think we’re about ready to file, but
case?
I wanted to go over everything with you and make sure that you understand
what we’re doing and why. You’ve met our paralegal, Chuck Fletcher, of
course—Chuck will be drafting up the papers to get the lawsuit going.”
“Sure. Hi, Chuck.”
Allen Porter continued. “Let me just summarize where we are. First, Dr.
Collins. This is all very puzzling. I spoke to Dr. Collins’s lawyer in Dallas and,
frankly, I find it very hard to believe he intended to attack you.”
“I locked my room. I locked my room. If you don’t believe me, I—”
Chuck Fletcher interrupted. “Of course we believe you. But just ask your-
self, how did the man get in? Did he use lockpicks? Did he have a master key?
The police didn’t find anything like that, and he was still in your bed, uncon-
scious, when the police arrived, remember.”
Shannon had no response.
Allen Porter resumed, “The point is, we’re obviously still missing some facts.
We need to get the suit filed so we can take some discovery and see what we can
pry loose. Clearly, we have enough to support a claim against Dr. Collins, for neg-
ligence, at least. After all, he was in your room, not his own. You just need to un-
derstand that if we sue him, he will certainly countersue—you shot him, don’t
forget—yes, I know, you thought you were defending yourself, I’m just telling you
what his lawyer will do. And, thanks to Chuck’s investigating—great job,
Chuck—I think we have a pretty good negligence claim against the hotel. We
have the desk clerk’s admission that the doors don’t always close securely. We
have your testimony that you checked the door, twice. There isn’t any other plau-
sible explanation for how Dr. Collins got into your room.”
Putting It
Shannon considered the lawyer’s words in silence. Porter summed up:
Into Practice:
“So, bottom line, my advice is to go ahead and file suit against Dr. Collins and
With the facts as you now the hotel. We can do that in federal court here in Phoenix.”
know them, what
potential claims exist in
this case? Evaluate the
pros and cons of each S U I T P R E PA R AT I O N P H A S E :
claim.
PLEADINGS
The first formal activity in a lawsuit consists of a process called pleading,
which is intended to force all parties to specify, on the written record, exactly
what the dispute is about. This is done in turns: Plaintiff files a complaint, each
defendant files an answer to the complaint, and finally plaintiff files a reply to
any new claims (called counterclaims) made by any defendant against plain-
tiff. Defendants are also given an opportunity to make claims against each
other and against others who are not yet parties; see FRCP, Rules 7–11. When
complete, the pleadings frame the issues for the entire lawsuit; no party is al-
lowed to delve into issues that are outside the scope of the pleadings.
Your Local Notes

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COMPLAINT
A civil lawsuit is begun by the plaintiff filing a complaint with an appropriate
court. The plaintiff is the party who starts the suit; the defendant is the party
being sued. The complaint is a formal, written statement in which the plaintiff
describes, in summary fashion, what the dispute is about, and what plaintiff
wants the court to do.
The statements in a pleading in which a party lays out his version of what
happened to cause the dispute are called allegations. It is customary for the al-
legations of a complaint to be organized in numbered paragraphs so that they
can be easily referred to in the answer and in other court papers. The complaint
ends with a prayer for relief, a concluding section stating specifically what
plaintiff wants the court to do (typically, award a money judgment for dam-
ages). The complaint is signed by plaintiff’s attorney; see FRCP, Rule 11(a).
There can be more than one plaintiff in a lawsuit, but only one complaint.
How do you decide what allegations to put into a complaint, how to or-
ganize them, and how to express them? Good complaint drafting is an art; we
will consider it in detail in Workshop 5. For now, it suffices to say that the al-
legations must be sufficient to state a claim. To state a claim, the allegations
must include each of the elements of the cause of action for which plaintiff is
suing. Meaning what, exactly? (See sidebar.)
FILING AND SERVICE OF PROCESS

After Shannon’s complaint has been prepared and signed, it must be filed with
the clerk of the court—in other words, it is presented to a deputy clerk with
the required filing fee. Many jurisdictions also require a completed information
SIDEBAR
Putting It
Elements of a Cause of Action Into Practice:
What facts can Shannon
What is a cause of action? The law does not impose liability for every of-
use to support her cause
fense. You can win a lawsuit against someone only if you prove that they did
of action?
something that the law recognizes as an actionable wrong—that is, they did
something that falls into one of the established categories of offenses for which
lawsuits are allowed.
How can you tell if a particular set of facts comprises one of the recognized
causes of action? By checking to see whether each of the elements of that cause
of action is satisfied. The elements of a cause of action are the specific things
that you must prove in order to win a lawsuit based on it. For example, the cause
of action for negligence has four elements: duty, breach of duty, causation, and
damages. Thus, to state a cause of action for negligence against Banbury Park
Hotel, Shannon’s complaint might allege that (1) the hotel had a duty to pro-
vide safe accommodations for guests; (2) the hotel breached that duty by know-
ingly allowing the room doors to fall into a poor state of repair so that they do
not close properly; (3) the hotel’s failure to maintain the doors properly caused
Shannon to be injured; and (4) Shannon was injured and lost money as a result.
If Shannon fails to prove each of those four things at trial, she loses as to the
negligence claim. Of course, if the facts can support claims based on other
causes of action, she can include those in her complaint too—each cause of ac-
tion is considered separately.
Being able to think of lawsuits as made up of separate claims or causes of
action, and of causes of action as being broken down into specific required ele-
ments, is a fundamental skill in litigation. Where do the elements of causes of
action come from? Mainly from case law: Appellate courts decide what is re-
quired. For a concise summary of the elements of the various tort causes of ac-
tions, a good place to start is the Restatement of Torts, which you can find in
any law library.
sheet or cover sheet to be filed with the complaint; this is typically a printed
form listing the names and addresses of the parties and their attorneys, tele-
phone numbers, and other information needed by the clerk’s office. Other pa-
pers, such as statements of whether the case is subject to compulsory arbi-
tration, may also be required.
The clerk of the court keeps the original, signed complaint to be placed in
the court’s file. The person filing the complaint has brought additional copies,
which the clerk stamps and returns; these are for the plaintiff’s lawyer’s file
and for delivery to each defendant. The clerk also issues summonses ad-
dressed to each defendant. A summons is a court order, usually a one-page
printed form completed by the plaintiff that the clerk signs and stamps, re-
quiring each defendant to appear before the court and defend the suit; see
FRCP, Rule 4(a–c).
Court papers are supplied to the involved parties via the service process.
A copy of the summons and complaint is served on each defendant. To serve
a paper on another party means to deliver it to them in a formal manner pre-
scribed by the rules. As you can readily imagine, it is very important that each
defendant be notified that he has been sued, and it is equally important that
plaintiff be able to prove that each defendant was notified. The rules of pro-
cedure include detailed instructions on how process is to be served under a
variety of common circumstances. One method used in many courts is to have
SIDEBAR
Captions
One format requirement found in all courts is the caption. The complaint,
and all other papers filed with the court, must begin with a caption, which is a
kind of title block that includes the name of the court, the names of the plaintiff
and defendant, and the case number. The caption also identifies what the pa-
per is: complaint, answer, motion to dismiss, etc. The clerk’s office uses the cap-
tion to ensure that the paper goes to the right file. Each court has rules specify-
ing caption format, spacing, and content. The caption of Shannon’s complaint
might look like this:
IN THE UNITED STATES DISTRICT COURT OF ARIZONA
SHANNON MARTIN, a single woman, )

)
) NO. _____
Plaintiff, )
) COMPLAINT
v. )
)
ARTHUR COLLINS and JANE DOE )
COLLINS, husband and wife; PARK )
HOTELS GROUP, INC., a Delaware )
corporation; DOES I through X; )
BLACK CORPORATIONS I through V; )
)
)
Defendants.
_______________ )
(Why the “John Does” and the “Black Corporations”? See Workshop 5.)
someone locate each defendant and hand deliver the summons and complaint
in person; this is called personal service. (Personal service is not the only pos-
sible way to serve the summons and complaint; we will take up others in Chap-
ter 4; see FRCP, Rule 4). The person who serves the summons and complaint
may be a sheriff or other government official, or, in many courts, the job is
done by a private process server, who makes a profession of locating parties
and witnesses and serving court papers on them. Courts that allow private
process servers often require them to be trained and licensed. However, see
FRCP, Rule 4(c)(2), which allows service by a noninterested party at least 18
years of age. After serving a copy of the summons and complaint on each de-
fendant, the sheriff or process server signs and files an affidavit of service with
the court, which serves as proof that delivery was actually made. [In some ju-
risdictions, this affidavit may be called a return of service, and the specific
form and contents of the paper may vary, but the purpose is to establish the
fact of delivery in the court record; see FRCP, Rule 4(l).]
Your Local Notes

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SIDEBAR
Putting It
Court Papers Into Practice:
What format would
The complaint is the first of many papers that will be filed with the court
Shannon be required to
during the course of a lawsuit. (Papers filed with the court are sometimes re-
conform to if she filed suit
ferred to generically as pleadings, although, strictly speaking, the term plead-
in your state?
ings includes only the complaint, answer, and replies to counterclaims or cross-
claims, if any.) Each court has rules on the format of papers to be filed with the
court, and the clerk of the court will refuse to accept papers that are not in the
proper format. These rules may at times seem arbitrary, but when you remem-
ber that the clerk’s office in a busy urban court system is responsible for keeping
track of literally millions of pages of new filings each year, you can appreciate
the need for uniformity.
How do you find out what format is required in a particular court? Check
the local rules for that court.
It sometimes happens that defendant already knows that plaintiff is filing Putting It
suit and is willing to waive formal service of process. Usually, this is perfectly Into Practice:
permissible as long as both parties agree, but plaintiff must take care to follow If Allen Porter asked you
the rules of the particular court in filing the appropriate documents to estab- to file Shannon’s
lish the waiver. Many courts have established procedures for voluntary ac- complaint and serve Dr.
ceptance of service that must be followed if you are to be able to claim the Collins, how would you
do it in your state?
SIDEBAR
Affidavits
Often in the course of a lawsuit, you will find that you need a formal way
to establish some fact, without going to the expense and difficulty of scheduling
a hearing or a deposition and having a witness appear and give live testimony.
For example, the fact that the summons and complaint were served on each de-
fendant must be established in the court record, but it would be impractical to
hold hearings and force judges to waste their time listening to process servers
testify that they delivered the required papers.
The solution is to use an affidavit. An affidavit is simply the sworn testi- Putting It
mony of a witness, which has been written down and signed in the presence of Into Practice:
a notary public. It can be filed with the clerk of the court as a substitute for ac- If Dr. Collins claims he
tual, live testimony of a witness in many routine situations. The rules of proce- was not served, how
dure specify under what circumstances affidavits may be used. For example, af- would you verify service?
ter the process server serves Shannon’s complaint on Dr. Collins, she will prepare
an affidavit of service and file it with the court, sending a copy to Shannon’s
attorney. The affidavit of service is a court paper, bearing the caption of the
case. Below the caption, the affidavit will state the facts to be established—for
example, that the process server has delivered a copy of the summons and com-
plaint to Dr. Collins, in person, and specifying the time and place that this was
done, together with other important details. The process server must sign the af-
fidavit “under oath”; as a practical matter, this is done by having the signature
notarized. Just as the laws against perjury prohibit a witness from lying under
oath in a courtroom proceeding, giving false testimony in a notarized affidavit
is a criminal offense.
costs of service at the conclusion of the lawsuit [should the opposing party re-
fuse to voluntarily accept service; see FRCP, Rule 4 (d).]
Your Local Notes

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ANSWER
Each defendant receives a copy of the summons and complaint. Under the
federal rules and in many state courts, the summons orders a defendant who
is personally served to “appear and defend” within twenty days; see FRCP,
Rule 12. The time period may be longer if the defendant was served in a dif-
ferent state than the one in which suit was brought.
What does it mean to “appear and defend”? The phrase is perhaps some-
what misleading, and people with little experience in the legal arena often, af-
ter being served with a summons, show up at the courthouse on the twentieth
day and ask where they are supposed to appear!
The term appear is one of those ordinary words that has a legal meaning
different from its everyday meaning. As used in the summons, appear means
to submit formally to the jurisdiction of the court. Ordinarily, this is done by
filing an answer to the complaint. (A motion to dismiss is another possibility,
but we will reserve that level of complexity for a later chapter.)
An answer is a pleading, similar in appearance and content to the com-
plaint, in which the defendant gives his side of the story. In the answer, the de-
fendant must admit or deny the allegations of the complaint, and may add any
factual allegations that defendant thinks plaintiff has omitted. Usually, this is
done by responding to each of the numbered paragraphs of the complaint. We
will take a detailed look at how answers are constructed in Workshop 8.
Your Local Notes

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Defendant must also raise in the answer any affirmative defenses. An

affirmative defense is one in which, instead of denying plaintiff’s allegations,
defendant offers some independent reason why defendant cannot be found li-
able. For example, when Shannon sues Banbury Park Hotel for negligence
claiming that the hotel failed to maintain its doors and locks in a safe condi-
tion, the hotel will counter with the allegation that Shannon was also negligent
in failing to check that the door was securely locked. That is an affirmative de-
fense and the hotel must state it in its answer. If you are not sure how to tell
whether a defense qualifies as an affirmative defense, do not worry—there is
a rule to help, and we will examine it in Workshop 8; see FRCP, Rule 8(c).
Your Local Notes

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The answer is also the place where the defendant can raise any claims
against the plaintiff or against third parties. Often, the best defense is a good of-
fense; it is an unusual dispute in which the defendant cannot think of some rea- Putting It
son why the plaintiff is really the one at fault. Any defendant may include coun- Into Practice:
terclaims in her answer; a counterclaim is, in effect, a lawsuit by the defendant Might the hotel have any
against the plaintiff. The allegations of a counterclaim are written in the same way potential counterclaims?
as if the defendant were preparing a complaint against the plaintiff. The answer Any cross-claims? If
may also include cross-claims—claims by one defendant against another defen- Shannon sued the hotel
dant. In our hypo, for example, Dr. Collins will counterclaim against Shannon for only, what response
battery and crossclaim against the hotel for negligence; see FRCP, Rule 13. would you anticipate
If the defendant believes that there is someone whom plaintiff has not from the hotel?
sued who should be involved, defendant may also bring third-party claims,
which are the equivalent of defendant suing someone else. Suppose, for ex-
ample that Shannon sued Dr. Collins but did not include the hotel as a defen-
dant in the suit. Dr. Collins could bring the hotel into the suit and make his
claims against the hotel via a third-party claim. Typically, he would do this by
filing and serving (on the hotel) a third-party complaint, following rules simi-
lar to those that apply to plaintiff’s complaint; see FRCP, Rule 4.
Your Local Notes

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To the extent that they involve similar issues, all of these counterclaims, Putting It
cross-claims, and third-party claims will be decided in a single lawsuit. The Into Practice:
judge can sever, or split off for separate decision, claims that are not suffi-
ciently related to the original suit; see FRCP, Rule 42. If you were responsible for
filing Dr. Collins’s answer
to Shannon’s complaint,
FILING AND SERVICE OF ANSWER how would you do it in
Having prepared an answer to the complaint, what exactly is the defendant re- your state? How would
quired to do with it? He must file it and serve a copy on plaintiff. At this point, your handling of
and from now on in this lawsuit, formal service of papers via a process server Shannon’s complaint
is generally not necessary. Formal service of the complaint is required because differ from your handling
the United States Supreme Court has ruled that anyone being sued is entitled of Dr. Collins’s answer?
to be notified of that fact by the best means possible in the circumstances.
Once the complaint has been served, however, all parties are at least aware that
a suit is pending, and can check the court file or simply contact opposing coun-
sel if in doubt about whether a particular paper has been filed. Therefore, the
rules provide that all papers after the complaint can be served simply by mail-
ing or delivering a copy to the opposing party’s attorney; see FRCP, Rule 5. Putting It
Each defendant must answer the complaint within the prescribed time pe- Into Practice:
riod, which is typically twenty days, but other periods may apply depending If you wanted to
on how and where the complaint was served. The last day to file the answer is determine the deadline
the first of many deadlines in a lawsuit. Each time a party files some paper with for Dr. Collins’s answer,
the court, there will usually be a deadline by which the opposing party must where would you look?
respond. Such deadlines are often shifted, either with the agreement of the op-
posing lawyer or by asking the court for more time.
Your Local Notes

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SIDEBAR
Forms
Where do court papers come from? Usually, the lawyers or paralegals in the
case write them, and they are typed and printed by a secretary or word pro-
cessing clerk.
In your work as a paralegal, you will often hear lawyers speak of using a
“form” complaint or other pleading or court paper. When we speak of “forms”
in a law office, we usually do not mean preprinted forms in the sense of, for ex-
ample, IRS tax forms, in which we simply fill in the blanks. Generally, the com-
plaint, answer, and other court papers are prepared by the parties or their
lawyers “from scratch” and preprinted forms are not used. There are exceptions:
Printed forms are often used in small claims courts; in certain highly system-
atized practices such as debt collection; and in most offices for certain routine,
one-page clerical items such as subpoenas, praecipes (instructions to the court
clerk) and summonses.
When a lawyer speaks of, for example, a “form” complaint, she is usually
referring to a copy of a complaint that was filed in some other, similar case.
Parts of the “form” may be cut and pasted into the rough draft of the current
project; other parts may be modified or merely used as a guide. In a modern
computerized office, many “form” documents are kept in word processing files
so that they can be easily modified without retyping the entire document. Thus,
when Chuck Fletcher drafts Shannon’s complaint, he will likely begin with a
“form” complaint from some other tort case in the office and modify the lan-
guage to fit Shannon’s situation. This prevents lawyers from having to reinvent
the wheel at their clients’ expense and also serves as a kind of checklist to reduce
the chance that some important allegation may be forgotten.
A good, complete form file is a valuable tool for a litigator and for a litiga-
tion paralegal. Even if your employer maintains an office form file, as most do,
we strongly recommend that you build and maintain your own as well. When
you draft a new type of document or when you see a well-drafted one prepared
by someone else (even an opponent!) make a copy, and add it to your file.
What happens if the defendant fails or refuses to file an answer on time?

In theory, plaintiff wins—a default judgment will be entered in plaintiff’s favor.
Putting It This is not automatic. There are, as you have undoubtedly guessed, some pro-
Into Practice: cedural steps to be taken—papers to be filed, perhaps hearings to be held—
What are the possible before the court will actually sign a default judgment. Unless the default was
consequences of deliberate (can you think of a reason why a party might deliberately default?),
incorrectly calculating a defendant’s attorney will be doing everything possible to derail the process.
filing date and filing In practice, the defendant must usually be given notice of the impending de-
papers after the legally fault and will somehow manage to scramble out of it, but defaults do occa-
required time? sionally stick, and even where they are eventually set aside, they cause the
lawyer (or paralegal!) responsible great embarrassment and poor sleep qual-
ity in the meantime; see FRCP, Rule 55.
Your Local Notes

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REPLY
Because any defendant’s answer can include counterclaims against the plain- Putting It
tiff, there has to be a mechanism whereby plaintiff can respond to the allega- Into Practice:
tions in the counterclaims. That mechanism is the reply. A reply is exactly like Who might file a reply in
an answer, except that it is made by plaintiff in response to a defendant’s coun- Shannon’s case?
terclaims. You might suppose that the defendant would then respond to what
plaintiff says in the reply, but modern practice cuts off the exchange of allega-
tions and counterallegations with the reply, mainly because otherwise the
pleading phase might never end! See FRCP, Rules 7 and 12.
CHOICE OF FORUM
More often than you might expect, the outcome of a lawsuit will depend on
who ultimately decides it. Judges and juries are people, and they have as many
biases and preconceived ideas as the rest of us. Different courts have different
procedural rules. Simply moving a case to the courts of another state may also
result in quite different substantive law being applied. Case backlogs can dif-
fer greatly; a plaintiff will usually prefer a court in which cases reach trial
quickly (say, a year), whereas a defendant will often prefer a court in which the
caseload is so great that several years may pass before trial.
The particular court that a case proceeds in is called the forum for decid-
ing that case. Initially, plaintiff chooses the forum by choosing the court in
which to file the complaint. As you might guess, however, there are procedural
moves a defendant can make to try to move the case to a different forum, hope-
fully one more favorable to defendant.
If, for example, the case is filed in state court, and the circumstances are Putting It
such that it could have been filed in federal court, defendant may have the right Into Practice:
to remove the case to federal court. If the defendant can convince the current What court in your state
court that it lacks jurisdiction or that venue is improper, or that the case is re- would be most favorable
ally more closely connected with some other state and ought to be decided for Shannon to file in?
there, the court may dismiss the case, forcing plaintiff to file elsewhere. We take
up these subjects in detail in Workshop 2.
“Okay, what is it, Chuck?” Allen Porter asked after Shannon left. “I can
tell there’s something bothering you about this.”
“Well, as a matter of fact—I didn’t want to bring it up in front of the client,
but—you told her we could file suit in federal court here in Phoenix. And—,”
Chuck paused, thinking, “I just don’t see how you can get personal jurisdic-
tion over Dr. Collins in Arizona. Doesn’t this case have to be filed in
Nevada?”
“That’s quick thinking!” Porter replied. “I was wondering whether you’d
pick up on that. You’re right, of course. We can sue the Park Hotels Group here
in Arizona, because they do business here—they own the Montezuma Park
Hotel in Scottsdale—but there is no basis for personal jurisdiction over Dr.
Collins, as far as I know.”
“So—”
“I raised the matter with Dr. Collins’s attorney in Dallas, and he decided
that he would just as soon litigate this in Arizona as in Nevada, so they’re will-
ing to consent to jurisdiction here.”
JOINDER OF ISSUE
In a simple case, there may be a single plaintiff suing one or a few defendants.
The only pleadings may be the complaint and an answer filed by all defendants
jointly. In more complex cases, there may be several plaintiffs who join in suing
several defendants, each of whom countersues plaintiffs, makes cross-claims

against each other, and brings third-party claims against others whom plaintiff
Putting It did not sue. In such cases, there is still only one complaint, but there may be a
Into Practice: number of separate answers, followed by replies to counterclaims, answers to
If Allen Porter is a busy cross-claims, and answers to third-party claims.
litigator, why might he be Regardless of the number of parties and the complexity of the claims,
relieved to experience a there comes a point at which all permissible pleadings have been filed. At this
delay in having the issue point, we say that “issue has been joined.” To oversimplify only a little, this
joined? somewhat archaic and mysterious sounding term merely means that the
pleading task is complete.
Why do we care when issue is joined? In most courts, you cannot ask for
a trial setting until the pleadings are complete.
Your Local Notes

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Putting It Drafting of routine pleadings is a common assignment for litigation paralegals.
Into Practice: In offices that handle a large volume of cases in a particular area of specializa-
If you were Allen Porter’s tion, such as personal injury, insurance defense, or debt collection, complaint
paralegal, what would drafting generally involves making straightforward modifications to form com-
you include in Shannon’s plaints. Paralegals are handed a file and expected to produce a finished com-
file at this point? plaint, ready to sign and file with the court. In cases of greater complexity or
those that present difficult substantive issues, complaint drafting requires a de-
tailed analysis of the issues based on appropriate legal research. Here, research-
qualified paralegals may be asked to prepare a draft for review and editing, but
the responsible attorney will participate more actively in the pleading process.
Another important task often performed by paralegals is the administra-
Putting It tive job of making sure that pleadings are filed on time and that responses are
Into Practice: received when due. Failure to file an answer by the due date can lead to a de-
fault judgment against the client and a malpractice suit against the unfortu-
Would it be ethically
nate lawyer responsible. On the plaintiff’s side, it is essential to keep track of
proper for Shannon to sue
the due date so that a notice of default can be filed the instant the answer time
Dr. Collins based on the
has expired and to ensure that any replies are filed by the due date. It is also
facts as she understands
necessary to work with the process server to ensure that the complaint is
them at the time she goes
served on all defendants within a reasonable time.
to see Allen Porter?
ETHICAL ETIQUETTE
A lthough lawyers should consider
all possible claims when preparing
a complaint, they are forbidden to bring
attorney who assists a party in bringing
a lawsuit in order to maliciously harm,
harass, or intimidate his opponent
“frivolous” or unmeritorious claims. violates various ethical rules. Attorneys
Such claims can arise if an attorney are also prohibited from preparing
brings an action simply to generate fees claims that are unwarranted under
or fails to confirm information supplied existing law unless they can make a
by a client and prepares a complaint good faith argument that the law should
based on erroneous information. An be changed.
E T H I C A L E T I Q U E T T E continued
In addition to being censured for result in being ordered to pay the
committing ethical violations, attorney’s fees and expenses of the
attorneys who bring frivolous suits opponent or in having the complaint
can be sanctioned under FRCP, Rule dismissed with prejudice. In some
11. Rule 11 requires that complaints be cases attorneys or their clients or
“well grounded in fact” and “warranted both have also been required to pay
by existing law or a good faith fines. Rule 11 applies to all pleadings,
argument for the extension, motions, and documents filed with the
modification, or reversal of existing court. Legal assistants can help
law” and that they not be filed for any prevent attorneys from violating Rule
“improper purpose, such as to harass 11 by carefully conducting thorough
or to cause unnecessary delay or factual investigations and by checking
needless increase in the cost of out all details in preparation for
litigation.” Violation of this rule may drafting a complaint.
PRACTICE POINTERS
Obtaining Documentary Evidence
Documents are critical to establishing the factual elements of a case and

the responsibility for obtaining these documents is often relegated to legal as-
sistants. Most documentary evidence can be obtained by sending a letter re-
questing the document. These letters are fairly straightforward (identifying the
need for the document and what specific documents are needed), but be care-
ful to phrase your request with sufficient specificity that the individual holding
the document will understand what is being requested. With medical doctors,
for example, you need to specify whether you need the doctor’s notes or her
narrative report outlining the patient’s treatment and prognosis.
Because medical and employment records are confidential, you need
the client to sign a written authorization before the doctor’s office or em-
ployer will release any records. Although most firms have standard release
forms, check the form before using it to make sure it provides everything
that you need. Having clients sign several authorization forms in advance
prevents them from having to return to the office every time an authoriza-
tion is needed. Because some institutions require authorizations to be no-
tarized, you may save time by having them all notarized at once.
Before requesting records from any institution, contact them first to see
what procedures they require. Find out, for example, if any fees are charged
and if those fees must be paid before the records can be released. Many doc-
tors charge nominal fees for their notes and several hundred dollars for their
narrative reports.
Once you receive records, review them immediately to ensure that you
can read any handwritten entries and that you understand any abbreviations
or shorthand notations. Clarifying any ambiguities in advance may save time
later, prevent misunderstandings, or open up new avenues of investigation.
Treat each new document you receive as a potential “smoking gun” that is
critical in winning the case. With this attitude you will be less tempted to pro-
crastinate in your review of records.
TECHNO TIP
When preparing a complaint or other glitches with the old document are
pleading from your forms file do not recreated in the new one. This is espe-
merely copy it to a new file. Paste the cially important if you are using a form
entire document to your clipboard, created with an older version of your
create a new document with your word processor or if you are converting
word processor, and then copy the from one word processor to another
pleading into the new document. When (such as creating a new Word docu-
you use the “save as” or similar func- ment with a form that was created in
tion to reproduce a document, any WordPerfect).
S U M M A RY
During the initial interview the attorney attempts to get enough information to
assess whether a potential lawsuit exists, whether any conflicts of interest pre-
vent him from taking the case, and whether the case falls within the range of
his expertise. Having decided to take the case, the attorney does as much in-
vestigation as possible before filing suit. Doing so ensures that the attorney
has a reasonable basis for believing that the claims made are factually and
legally well grounded and minimizes the pressure to meet disclosure and other
procedural deadlines after the suit has been filed. On the other hand, the
prompt filing of suit can give the plaintiff more credibility as a viable threat and
can preempt action by the opponent. When preparing to file a suit, the attor-
ney must decide whom to sue, what claims to allege, which court to sue in, and
what relief to request. Although most of these decisions can be amended at a
later date, the plaintiff benefits from making the optimal decision up front.
Plaintiffs filing suit against administrative agencies must first exhaust their
administrative remedies. Before filing suit against a governmental entity the
plaintiff must check to make sure that the entity is not protected by sovereign
immunity and that any prerequisites to filing suit have been satisfied. Attorneys
should contact others involved in a dispute before suit is filed in order to ob-
tain statements and get information because once the complaint is filed attor-
neys are precluded from making direct contact with opposing parties.
Reaching a settlement agreement is almost always better than filing a law-
suit because of the time and expense entailed in a lawsuit and because of the
emotional toll litigation exacts on its participants. Because filing suit often fur-
ther polarizes parties, settlement should be attempted before suit is filed. Set-
tlement negotiations include the use of demand letters and, when multiple par-
ties are involved, settlement with only one of the parties.
Legal assistants assist in the pretrial phase of litigation by interviewing
prospective clients, by ensuring that all tasks germane to filing suit are com-
pleted, and by making sure that no details are overlooked.
A lawsuit begins with the filing of pleadings, which include the complaint
filed by the plaintiff, the answer filed by the defendant, and the reply filed by
the plaintiff. Parties are not allowed to explore issues outside the framework
of the pleadings. The allegations of the complaint must state a claim by es-
tablishing all elements of the cause of action. To prevail, the plaintiff must
prove each of these elements. In addition to allegations, the complaint must
begin with a caption and end with a prayer for relief. Many jurisdictions re-
quire the complaint to be accompanied by a cover or information sheet. The
clerk of the court keeps the original complaint, stamps the copy that is sent to
the defendant, and issues a summons to the defendant. The complaint and
summons is then served on the defendant by the process server or sheriff,
who is required to file an affidavit of return of service with the court after de-
livery is completed. Parties can agree to waive formal service of process.
Under the federal rules, defendants typically must file an answer within
twenty days of having received service. In the answer the defendant can either
admit or deny allegations made by the plaintiff, add factual allegations, raise
affirmative defenses, or include counterclaims or cross-claims. Defendants
can also bring third-party claims against defendants whom the plaintiff has not
sued. Judges who believe that any claim is not sufficiently related to the re-
mainder of the suit have the option of severing that claim. Plaintiffs have the
opportunity to reply to counterclaims. All court papers other than the com-
plaint can be mailed or delivered to the opposing party; they do not require
formal service. If the defendant fails to answer, a default judgment may be en-
tered in the plaintiff’s favor. Trial cannot be set until the issues are joined.
Plaintiffs choose their forum based on several considerations: the proce-
dural rules and substantive law that are applied in that court, the backlog, and
the predispositions of the judges in that court. Defendants have an opportu-
nity to remove cases to another court if they can prove that the court chosen
by the plaintiff lacks jurisdiction, if venue is improper, or there is some other
compelling reason another court should hear the case.
KEY TERMS
Actionable wrong Cross-claim Return of service

Affidavit Default judgment Service
Affidavit of service Element Sever
Affirmative defense Forum Sovereign immunity
Allegation Issue has been joined State a claim
Answer Personal service Summons
Appear Praecipe Third-party claim
Caption Prayer for relief Third-party complaint
Cause of action Process server
Complaint Removal
Counterclaim Reply
Workshop Alert
The following workshops correlate well with this chapter and you would be well advised to work with them.
Workshop 1 Claims and Their Elements
Workshop 2 Choosing a Court
Workshop 3 Working Up a Case for Suit
Workshop 4 Court Papers
Workshop 5 Drafting Pleadings: Complaints
Workshop 6 Serving the Complaint
Workshop 7 Paper Flow in a Litigation Office
Workshop 8 Drafting Pleadings: Responsive Pleadings
REVIEW QUESTIONS
1. What type of information does an attorney try 12. By what process is a defendant notified of a suit
to elicit from a potential client during the initial that has been filed against her?
interview? a. How is personal service carried out?
b. What is an “affidavit of service”?
2. What minimal information is necessary to draft
a complaint? 13. How does a defendant “appear and defend”?
a. What is usually contained in an answer?
3. Why is it important to investigate a case sub-
b. What is the difference between a counter-
stantially before filing suit? On the other hand,
claim, a cross-claim, and a third-party claim?
why should a party avoid procrastinating when
filing suit? 14. How does filing an answer differ from filing a
complaint?
4. What types of strategic decisions must be made
when filing suit? 15. What are the consequences of a defendant fail-
ing to file an answer in a timely manner?
5. In what situations is a party required to “ex-
haust administrative remedies”? 16. What is contained in a reply?
6. What special considerations must be contem- 17. Who chooses the forum for a case? How can a
plated when suing a government agency? defendant affect that decision?
7. In what way does an attorney try to “engineer” 18. What is meant by the declaration “the issue has
the facts before filing suit? been joined”?
8. Why should settlement usually be considered 19. How does a paralegal participate in the plead-
before filing suit? What types of steps are typi- ing process?
cally taken as part of pre-suit settlement?
20. Use the following sets of words in a single sen-
9. What role does a paralegal play in pre-suit tence:
preparation? a. Complaint; affidavit of service; personal
service; summons
10. Identify the following pleadings:
b. Answer; affirmative defense; third-party
a. Complaint
claims; sever
b. Answer
c. Pleading; prayer for relief; allegations; coun-
c. Reply
terclaim
11. What must a complaint contain? What are the
elements of a cause of action?
PRACTICE EXAM
1. During an initial interview with a client the at- c. they may be barred from using evidence
torney must determine they do not promptly disclose.
a. if any conflicts of interest exist. d. all of the above.
b. if he will win the case. 3. Some of the strategic decisions attorneys face
c. if he likes the client. in drafting complaints are
d. none of the above. a. deciding what court to sue in.
2. Attorneys usually carefully investigate cases b. deciding what kind of relief to request.
before filing complaints because c. deciding whom to sue.
a. once suit is filed they will be pressured to d. all of the above.
meet several deadlines. 4. The advantage in filing suit quickly is that
b. many times they must disclose the evidence a. you can preempt a suit being filed by your
on which their claim is based within a few opponent.
months after suit is filed. b. you may intimidate your opponent.
c. a and b. a. complaints.
d. There is no advantage to filing suit quickly. b. answers.
c. counterclaims.
5. Pleadings include
d. all of the above.
a. replies.
b. answers. 8. Plaintiffs choose their forum based on
c. complaints. a. court backlogs.
d. all of the above. b. procedural rules and substantive law the
court will apply.
6. A defendant has the option of
c. biases and prejudices of the judges.
a. filing cross-claims but not third-party d. all of the above.
claims.
b. raising affirmative defenses and moving to 9. Defendants can ask for the removal of cases
dismiss. based on
c. admitting or denying allegations but not a. jurisdictional and venue issues.
adding allegations. b. having closer connections with another
d. filing counterclaims against other defen- court.
dants. c. a and b.
d. Defendants cannot ask for the removal of
7. Formal service is required for the serving of
cases.
FILL IN THE BLANKS

10. Governmental agencies can sometimes protect 15. A _______________ is a court order served on a
themselves from suit by claiming _______________ . defendant requiring her to appear before the court
11. Sending a _______________ letter is one way of and defend the suit.
initiating settlement negotiations. 16. After a private _______________ serves a
12. _______________ force parties to specify in summons and complaint on a defendant, he must
writing what the dispute is about; the first of these file an _______________ with the court, attesting to
is prepared by the plaintiff and is referred to as a the fact that he delivered the documents.
_______________ . The response prepared by the 17. An _______________ is a sworn, notarized
defendant is called an _______________ . statement that can serve as a substitute for live
13. A complaint is organized in numbered testimony of a witness in some situations.
paragraphs called _______________ , opens with a 18. The term _______________ in a summons
title block called the _______________ , and ends means the defendant must formally submit to the
with a _______________ . jurisdiction of the court; this is done by filing an
14. Many jurisdictions require a _______________ _______________ to the complaint.
to be filed along with the complaint; this sheet lists 19. An _______________ defense is raised by the
the names, phone numbers, and addresses of the defendant in the answer as an independent reason
parties and their attorneys. why the defendant cannot be found liable.
20. A defendant can take the offensive with the 23. A plaintiff can respond to a defendant’s
plaintiff by including _______________ in his counterclaims by filing a _______________ .
answer or can make claims against fellow 24. The court that a case proceeds in is called the
defendants by including _______________ . _______________ for deciding that case; if the
21. A defendant can bring a new defendant into a defendant wants to have another court hear the
lawsuit by filing a _______________ claim; if the case, she can ask for _______________ .
judge determines that the latter is not sufficiently 25. Once all the permissible pleadings have been
related to the remainder of the suit, she has the filed, the _______________ and the trial can be set.
option of _______________ that claim.
22. If a defendant fails to answer a plaintiff’s
complaint, the plaintiff may win by seeking to have
a _______________ entered in his favor.
TRUE OR FALSE
26. The federal rules of civil procedure require only 36. Legal assistants have very little involvement in
that an attorney have some basis, however min- the pretrial phase of litigation. T F
imal, for believing that the claims being made
37. Parties cannot go into issues that are not in-
are well grounded. T F
cluded in the pleadings. T F
27. A good attorney gets as little information as
38. The allegations in a complaint must be suffi-
possible before filing a lawsuit. T F
cient to state a claim. T F
28. Complaints cannot be amended once they are
39. To win a lawsuit, a plaintiff must prove each el-
filed. T F
ement of her cause of action. T F
29. If a plaintiff wants to file suit against an admin-
40. The elements of a tort cause of action are best de-
istrative agency, she must first exhaust her ad-
termined by consulting the appropriate statutes.
ministrative remedies. T F
T F
30. A claim against a governmental agency can be
41. The plaintiff keeps the original of the complaint
dismissed if it is not in the correct form or if it
after filing it with the court clerk. T F
is delivered to the wrong government official.
T F 42. To determine the format required for court pa-
pers, one should consult the local rules for the
31. An attorney always has the right to make direct
court in question. T F
contact with the opposing party. T F
43. Personal service is required for all complaints.
32. Attorneys should try to contact opposing par-
T F
ties in a suit before suit is filed. T F
44. Only process servers can serve a summons and
33. Insurance companies usually get statements
complaint. T F
from all parties and witnesses before suit is
filed. T F 45. Parties cannot waive formal service of process.
T F
34. When multiple parties are involved, the plaintiff
may find it advantageous to settle with one of 46. A defendant that has been summoned to “appear
the defendants before filing suit. T F and defend” must appear at the courthouse
within the time specified on the summons.
35. The first party to file suit has the advantage of
T F
being able to choose the forum in which to sue.
T F
47. In an answer to a complaint a defendant may ad- 53. The plaintiff has absolute control over the
mit or deny allegations but may not add factual choice of forum. T F
allegations. T F
54. In most courts the trial cannot be set until the
48. A defendant can raise cross-claims against the issue has been joined. T F
plaintiff. T F
55. Drafting of routine pleadings is a common task
49. Third-party claims allow the defendant to bring for litigation legal assistants. T F
new defendants into a lawsuit. T F
56. In many firms that handle a large volume of spe-
50. Plaintiffs rarely win by obtaining a default judg- cialized cases, complaint drafting consists of
ment in their favor. T F making modifications to form complaints.
T F
51. Defendants have an opportunity to respond to
the plaintiff’s reply. T F 57. The task of ensuring that pleadings are filed on
time and responses are received when due usu-
52. The choice of forum usually has little effect on ally falls to the attorney rather than the legal as-
the outcome of a case. T F sistant because of the critical nature of meeting
deadlines. T F
LITIGATION LINGO
Unscramble the letters to form the word described.
1. TINMOCPAL Formal statement by plaintiff of what dispute is about
2. TULAFED What will happen if defendant fails to file answer
3. PYLER Plaintiff’s response to defendant’s counterclaim
4. SAGELTNLOAI Numbered paragraphs in a complaint
5. TONCIPA Title block in a complaint
6. EVICRES Delivery of complaint
7. VEROMLA Change of court
8. DITAFIFVA Signed, sworn statement
9. NGOSREVIE _______________ immunity
10. ADNMED Letter initiating settlement
11. NIJODE When the issue is _______________ , trial can be set
12. SROCS Type of claim filed against other defendants
13. EFRIMFAVITA Type of defense
14. UMROF Court where case is heard
15. YRERAP Complaint ends with this
16. LEMTENES Plaintiff must prove each of these
17. REWNSA Defendant’s response to complaint
18. PEAPAR Submitting to jurisdiction of court
19. LIAMCNTREOCU Defendant’s allegation against plaintiff
20. MUSSONM Court order requiring defendant to appear
the question.
1. Suppose you decide to sue the drunk driver 3. Suppose you have filed suit in your state court
who sideswiped your car. If you had the choice, against your cousin who has refused to pay
would you choose to sue in federal or state you. In how many days must your cousin file an
court in your jurisdiction? How would you go answer?
about making this determination? a. Must he formally serve his answer?
a. What would the defendant have to do to get b. Suppose your cousin fails to file a timely an-
the case removed to another court? swer. What must you do to secure a default
b. Suppose you decide to sue in your state judgment?
court. What do your local rules dictate as far c. What kind of affirmative defenses could your
as the format of your complaint? Would you cousin raise?
have to file a cover sheet with your com- d. What kind of counterclaims might your
plaint? Or something indicating that your cousin make? What format is required for a
case was or was not subject to compulsory counterclaim?
arbitration? e. How long would you have to respond to
c. Suppose the drunk driver turns out to be a these counterclaims?
federal agent. How would you determine
4. Suppose you have sued the contractor who did
whether you could sue him for your dam-
the shoddy work on your house. What kind of
ages under the Federal Tort Claims Act?
third-party claims might he make?
d. If you decided to send a demand letter be-
fore suing, what would you demand in order a. Would he need permission of the court to
to settle the case? make these third-party claims?
b. Would he be required to formally serve
2. Suppose you decide to sue your karate instruc- these third-party complaints?
tor for negligence. What would you have to c. How long would these defendants have to re-
prove, that is, what would be the elements of spond?
your cause of action? How would you go about d. Suppose you sue some of the subcontrac-
determining this? tors as well. How might the contractor re-
a. What will you be required to do to serve spond in his answer?
your complaint in your state court? How
5. Suppose you have sued the tenant who stopped
long will you have to serve the complaint?
paying rent. Then after filing suit you find out in
b. What options will you have other than per- the process of investigating the case that she
sonal service? had paid you but you had misplaced the rent
c. What must you do if the karate instructor
checks. What might be the consequences un-
agrees to waive formal service?
der FRCP 11? Do you have a procedural rule
d. What is required of the person who serves
comparable to FRCP 11 in your state?
the complaint and summons?
1. Many people are concerned about the extent of d. Karate instructor breaks your nose.
litigation in this country. What, if any, steps do e. Contractor does shoddy work on house.
you think litigants should be required to take 3. What do you think will be the essence of the
before being allowed to file suit? Should they, complaint in each of the following cases? What
for example, be required to go through some do you anticipate will be found in the answers
type of preliminary dispute resolution process? of the defendants? What possible counter-
What, if any, limitations should be imposed on claims, cross-claims, and third-party claims
litigants as far as their right to sue? might be filed?
2. Consider all of the individuals and legal entities a. Drunk driver sideswipes your car.
you think should be sued in each of the follow- b. Tenant stops paying rent and refuses to
ing cases (taken from the hypos at the begin- move out.
ning of Chapter 1). What steps would you take c. Cousin refuses to pay you a percentage of
prior to filing suit? his business.
a. Drunk driver sideswipes your car. d. Karate instructor breaks your nose.
b. Tenant stops paying rent and refuses to e. Contractor does shoddy work on house.
move out.
c. Cousin refuses to pay you a percentage of
his business.
CHAPTER
4
ROAD MAP
OF A LAWSUIT:
DISCOVERY
OBJECTIVES
■ What discovery is and how litigators

gather evidence
■ What a deposition is
■ What interrogatories, requests for

admission, and requests for
production of documents and
things are
■ How experts are used in litigation
■ What an I.M.E. is
■ How discovery is limited and how

discovery rules are enforced
72 CHAPTER 4 Road Map of a Lawsuit: Discovery
hypothetical
Shannon’s Ordeal, continued
“ huck was going over Dr. Collins’s statement to the police, and he had
C what I think might be a brilliant flash of insight. But first, we need to ask
you, when you checked to be sure the door was locked, how did you do it?”
“As I said,” Shannon began impatiently, “I checked it before I went to bed,
then a few minutes later, I got up and checked it again. It was locked. What
else can I say?”
“But how did you check it? What did you do? Did you turn the knob? Did
you pull on it? Shake it? What, exactly?”
“Both. I turned the knob, it wouldn’t turn, and I pulled on it. Believe me,
it was locked.”
“What about the chain?”
“I didn’t use it. I read somewhere that they’re dangerous if there’s a fire
and you need to get out in a hurry, and they aren’t strong enough to keep any-
one out.”
Chuck spoke up: “Dr. Collins told the police he picked up his key from the
desk clerk, and used it to open the door. The only way that could be true is if
the door were not closed all the way—in which case it wouldn’t matter whether
the key turned the lock—or else if the key the clerk gave Dr. Collins actually fit
your door. So if the door was completely closed, that would mean either the
same key fit both your door and Dr. Collins’s door, or else the clerk gave Dr.
Collins the key to your room. Either way, it would sure put the hotel on the hook.”
Shannon was doubtful. “It still wasn’t his room. I don’t see why you have to
make it so complicated—the man took off his clothes and attacked me, he broke
my finger. . . . Anyway, how could you ever prove what key they gave him?”
“Discovery,” Porter responded confidently. “We take Dr. Collins’s depo-
sition and nail down the details, then we subpoena the keys from the police
and try them on the doors. I’m betting that the key they gave Dr. Collins fits
the lock on your room—it’s the only logical explanation.”
THE INVISIBLE MIDDLE

We now turn to the phase during which the real work of litigation is done, and
in which most cases are won or lost. This phase begins soon after the complaint
is filed, and ends as the parties are gearing up in earnest for trial. This “middle”
phase may not be glamorous, but it is here—via discovery and motions—that
the strengths and weaknesses of each party’s case will become apparent, so
much so that experienced litigators can usually make a reasonably accurate
guess about the outcome of the suit well before the trial actually begins.
As we said in the preceding chapter, the first task in a typical lawsuit is the
pleadings. Completing the pleading phase usually takes at least a few weeks
and can take as much as several months. Delays may arise from difficulty in
serving process on all defendants; also, defense attorneys commonly ask for
additional time in which to file an answer, and plaintiff’s attorneys, who also
occasionally need to ask for extensions of deadlines, routinely grant such re-
quests. In most lawsuits, as a practical matter, not much happens during these
first few weeks or months, although this is not always the case, as we shall see.
After the pleading task has been completed, activity takes place more or
less simultaneously on two main battlefields. The first is the discovery process,
which is the means by which each party seeks to develop the factual aspects
of the case by obtaining evidence and getting it into the record in a form that
CHAPTER 4 Road Map of a Lawsuit: Discovery 73
can be used at trial. The second involves pretrial motions. Any party can, by
filing a motion, ask the judge to settle pertinent questions about the substan-
tive law that applies to the case; to decide procedural disputes; or, in appro-
priate situations, to render a final decision disposing of all or part of the case.
After these two activities are well under way, the litigants begin to carry out
the necessary procedures to get an actual trial date scheduled on the court’s
trial calendar, a task that we will leave for Chapter 5.
D I S C O V E RY
Ultimately, trials are decided on the basis of evidence. Evidence is the factual in-
formation about the dispute that is presented to the judge or jury. In civil suits,
evidence consists mainly of two things: The first is the testimony of witnesses,
who appear in person and answer questions about what they have seen or done.
The second is documentary evidence—papers. These are presented as exhibits,
shown to the jury, and made a part of the trial record. Complex rules (which we
do not present here since they are properly the subject of a separate course on
evidence) are applied to decide what documents and testimony will be “admit-
ted in evidence.” When we say that evidence has been admitted, we mean that
the judge has ruled that it may be made a part of the record and considered in
reaching a decision in the case. The judge will exclude—reject—evidence that
is not admissible under the rules of evidence. The judge—not the jury—makes
all decisions about what evidence will be admitted.
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Where does all this evidence come from? You might suppose that plaintiff
would be required to have his evidence ready before filing suit—people should
not be allowed to bring lawsuits based on evidence they do not have, should they?
In practice, things are rarely that simple, as our hypo illustrates. The prob-
lem is that, by the time a dispute blossoms into a lawsuit, each side has pos-
session of some of the evidence or information that is critical to the other
side’s case. Few suits could go forward without some means of prying evi-
dence away from opposing parties. Then, there is the problem of obtaining ev-
idence from third parties (like Arnie Trevayne, our hypothetical hotel clerk)
who may not wish to cooperate.
In our hypo, for example, defense attorneys for the hotel and Dr. Collins
will certainly need access to Shannon’s medical records—the amount of
Shannon’s damages will be in dispute, and the defense attorneys will want
to verify the extent of her injuries and seek their own doctor’s opinions
about them. Shannon will need to obtain information and records from the
hotel about the maintenance of the doors and locks. These are but a few ex-
amples—in practice, the attorneys for all three parties will likely spend
many hours on discovery involving scores if not hundreds of factual issues
and subissues.
And what does a party do about the opposing party’s evidence? Does each
party go to trial “blind,” without any knowledge of what evidence the other
party will present? Would you want to cross-examine, say, Arnie Trevayne, at
trial, in front of the jury, with your entire case possibly riding on his testimony,
without having any idea what he may say? How would you prepare?
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In fact, at “common law”—lawyer shorthand for the way American and

English courts worked in past centuries—litigants pretty much came to trial
with whatever evidence they had and took their chances. Nowadays, however,
a number of mechanisms are used whereby parties can obtain almost any in-
formation pertinent to their dispute, under compulsion of a court order, if nec-
essary. These mechanisms are collectively called discovery, and their use is
governed by—you guessed it—the rules of procedure. How much information
can a party to a lawsuit be forced to disclose? In general, the limits are broad
indeed: Under the federal rules (see FRCP, Rule 26), any information that is
“reasonably calculated to lead to admissible evidence” and not “privileged”—
that is, does not belong to one of the “taboo” categories such as discussions
between lawyer and client, doctor and patient, or priest and penitent—is fair
game. If you participate in litigation, whether you sue someone or someone
sues you, you can expect to be forced to turn over plenty of information that
you would probably think of as private.
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Here we briefly summarize the main tools available for obtaining evidence;
we will cover specific discovery procedures in detail in later chapters. Before
we begin, it is worth mentioning that discovery is an evolving area of proce-
dural law in which the rules are still undergoing development and change. For
several decades beginning in the 1940s and 1950s, discovery was entirely an
adversary process, in which the party seeking evidence had to take affirmative
steps to demand specific information from the opposing party. Nowadays, al-
though the adversary procedures remain in place to be used when necessary,
Putting It many courts are experimenting with mandatory disclosure rules, under which
Into Practice: a party in possession of evidence is required to disclose it to the opposing
What do you think should party, even without being asked to. These disclosure rules have created still
happen when a party another arena for procedural maneuvering, one in which the details are not yet
knows of evidence that is settled. We address mandatory disclosure rules in detail in Workshop 11, be-
damaging to her own cause they appear to represent an important trend.
case and of which the The principal discovery mechanisms authorized by the rules of procedure
opposing party is not are depositions of witnesses (see FRCP, Rules 27, 28, 30, and 31), written in-
aware? Should disclosure terrogatories to parties (see FRCP, Rule 33), requests for production or in-
be required? spection of documents and things (see FRCP, Rule 34), requests for medical ex-
aminations of a party whose medical condition is an issue in the suit (see
FRCP, Rule 35), and requests for admissions of facts (see FRCP, Rule 36).
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DEPOSITIONS
Much of the evidence at a trial is presented in the form of live testimony: Wit-
nesses are called to the stand and examined, or questioned, by the lawyers
for both sides. For the lawyer preparing for trial, it would be handy to be able
to question the opposing party’s witnesses ahead of time. It would be espe-
cially useful to be able to have the witnesses’ answers recorded, so as to make
it more difficult for the witness to change his story later. How can this be ac-
complished?
The rules of civil procedure allow any party to a lawsuit to take deposi-
tions (see FRCP, Rule 30). A deposition is a discovery procedure in which a wit-
ness is required to appear at a specified place and time (usually long before
trial) to answer questions. Most often, a deposition is held in a conference
room at the office of the lawyer who will do the questioning. Lawyers for the
opposing parties also appear, and can make objections; see FRCP, Rule 30(c).
A court reporter is present to administer the oath to the witness and to take
down in shorthand (typically using a computerized shorthand machine) every
word that is said—questions, answers, and objections. The court reporter will
later prepare a written transcript of the testimony, which is a printed or type-
written booklet containing every word said by anyone during the deposition.
The judge is not present; any disputes or objections requiring the attention of
the judge can be ruled on later, based on the written transcript.
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The deposition transcript is useful in two important ways. First, it helps

the trial lawyers prepare by giving them an idea about what to expect from
each deponent (one who is deposed) when they testify as a witness. Second,
under appropriate circumstances, the transcript itself—the written record
of what the witness said at the deposition—can be used as evidence at the
trial. This is routinely done when a witness gives an answer at the trial that
is different from the answer the witness gave in a deposition. Trial lawyers
love to impeach (discredit) opposing party’s witnesses by catching them
trying to “change their story”; the lawyer will, on occasion, walk dramati-
cally over to the counsel table, pick up a deposition transcript, turn back to
the witness, read the question and the witness’s previous answer from it, and
ask, “Isn’t it a fact that you gave that response [a different answer] to the
same question at your deposition?”
As you might expect, witnesses do not always want to appear for deposi-
tions, just as they do not always want to appear and give testimony in a trial.
In both situations, the court will issue a subpoena; a subpoena is an order of
the court directing the witness to appear at a specified time and place and give
testimony. A subpoena is like any other court order: The judge can punish a
disobedient witness with fines or even jail. A subpoena is another of those rou-
tine orders that the clerk of the court issues without having to consult a judge,
so, as a practical matter, lawyers for either side can subpoena anyone they
care to. We provide more detailed instructions on how to obtain a subpoena
in Workshop 8; see FRCP, Rule 45.
Who decides what witnesses will be deposed in a case? In general, the
lawyers do. Under the rules as they existed in most jurisdictions until the
late 1990s, lawyers were free to take as many depositions as they wished in
a case, the only limitation being that an opposing party could protest to the
judge if the number of depositions became extremely unreasonable. Lawyers

tended to depose every witness who might possibly know something about
Putting It the case. In the hands of the less scrupulous, excessive deposition-taking
Into Practice: (and other excessive and burdensome discovery) became a weapon for de-
Whom do you think Allen laying trials and for deterring legitimate claims by making litigation unnec-
Porter should depose and essarily expensive.
why? Increasingly, as a way of trying to reduce the cost of litigation, court rules
are being amended to place limits on discovery. The federal rules currently re-
quire court permission or a written stipulation to take more than ten deposi-
tions; see FRCP, Rule 30(a)(2)(A). Another common approach is to allow parties
to take depositions of any opposing parties, but to require advance permission
from the judge before witnesses who are not parties can be deposed. Many
courts also place time limits on depositions. Expert witnesses—witnesses hired
by a party to give an opinion on some scientific or technical question—can also
usually be deposed without a need for permission from the judge.
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Arnie Trevayne had obviously been well coached before the deposition.
That was expected—Allen Porter habitually did the same with his own
clients, going over possible questions, listening to the answers, instructing
them over and over, “listen to the question, answer it, and stop—don’t vol-
unteer information.”
So far, Arnie hadn’t given away much. Porter looked around the confer-
ence room, and glanced at the court reporter who was waiting expectantly,
fingers poised over her shorthand machine, then at Gail Stoddard, the lawyer
representing the hotel. Finally he looked at Arnie, waiting for him to make
eye contact, then resumed the questioning.
“Dr. Collins testified at his deposition that he took the key you gave him,
inserted it in the lock of Room 407, turned the key, and opened the door. Do
you have any idea how that could be?”
“Beats me.”
“Did you give him a key to Room 407?”
“407? Of course not.”
Putting It “What key did you give him?”
Into Practice: “The key to his room, 409.”
How far do you think “Is there any way you can think of that the key to 409 could have opened
lawyers should be allowed the door to Room 407?”
to go in advising clients “Sure—if she left the door unlocked.”
about how to answer
“Isn’t it true that the doors are old, and they don’t always close all the way?”
deposition questions?
What is the penalty for a “Not that I know of.”
witness who lies in a “Have you ever told anyone that the doors are old and they don’t always
deposition? For a lawyer close all the way?”
who allows a client to do Arnie frowned, as if in deep thought, then answered. “No.”
so? What should the
“Didn’t you tell Chuck Fletcher, who is seated here to my left, that the
penalty be?
doors are old and they don’t close all the way?”
“Not that I remember.”
WRITTEN INTERROGATORIES
Written interrogatories are written questions directed to one of the other par-
ties. Instead of requiring an in-person appearance to answer questions orally, the
questions are submitted in writing. It is customary to prepare interrogatories in
the form of a court paper, with a caption, and (traditionally) leaving space after
each question for the answer to be written or typed. The interrogatories are
served on the party whose answers are desired, usually by mailing or delivering
them to the party’s attorney. The process of preparing written interrogatories
and submitting them to another party to be answered is called propounding in-
terrogatories; the party who is asking the questions is the propounding party
and the party who is required to answer them is the responding party.
The responding party has a limited time, normally thirty or forty days
[thirty days in federal court; (see FRCP, Rule 30(b)] in which to answer the
questions in writing and serve the answers on the propounding party. (As with
most discovery procedures, voluntary extensions of time are commonplace.)
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One important difference between interrogatories and depositions is that

any witness may be deposed, but only parties to the suit can be made to an-
swer interrogatories. In other words, if a witness is not a plaintiff or defendant
in the lawsuit, you cannot submit written interrogatories to him.
Why do we need written interrogatories? Can we not take the deposition of
the responding party instead? Certainly—parties may be deposed and almost
always are. But each procedure has its own strengths and weaknesses. Depo-
sitions allow great flexibility. The lawyer conducting the questioning can follow
any unexpected threads wherever they may lead, and can deal with evasive or
ambiguous answers simply by persisting until the witness gives a clear answer.
On the other hand, depositions are expensive, and usually each witness may be
deposed only once. Sending out interrogatories is cheaper and can be done as
often as needed. [Although many courts place limits on the total number of in- Putting It
terrogatories that may be propounded without court permission. Twenty-five Into Practice:
is the limit in federal court; see FRCP, Rule 33(a).] Experienced litigators often How might Allen Porter
begin with interrogatories, which they use to locate documents, identify po- use interrogatories in
tential witnesses, and pin other parties down as to the general outlines of their Shannon’s case?
stories; then depositions are taken to zero in on the details.
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REQUESTS FOR PRODUCTION OF DOCUMENTS

AND THINGS
Depositions and interrogatories are very useful for obtaining discovery about
testimonial evidence, but what about documents? Not enough information is
gained merely by asking questions about a document—lawyers often need to
see the document itself. Two procedures are available for compelling some-
one to turn over documents.
The first is called a request for production of documents and things (of-
ten abbreviated to simply “request for production”). A request for produc-
tion is a court paper, prepared by the requesting party and served on the re-
sponding party, which is the party from whom the documents are requested.
The request for production will specify a time and place at which the re-
sponding party must appear and produce documents, and will include a list
of the documents being asked for. In practice, the responding party usually
does not actually show up at the appointed hour with documents in hand;
instead, copies are mailed or delivered. The responding party must also file
a written response—another court paper—stating what items have been
produced, which items are not in her control, and objecting to any parts of
the request that may call for items that the requesting party is not entitled
to discover.
Requests for production can only be used to obtain documents from other
parties to the suit. What happens if you need documents from someone who is
not a party? You can obtain them using a subpoena duces tecum. A subpoena
duces tecum is a subpoena that, in addition to ordering a witness to appear,
Putting It also orders the witness to “bring with you” (duces tecum in Latin) specific
Into Practice: listed documents or things. Again, in practice, the usual way to comply with a
How might Allen Porter subpoena duces tecum is to mail or deliver copies.
use a request for Both requests for production and subpoenas duces tecum can also be used
production in Shannon’s to obtain physical objects other than documents when necessary. A closely re-
case? lated procedure—the request for entry upon land for inspection—is used to
obtain entry to a location (an accident site, for example) that is under another
party’s control.
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“Kind of blows a hole in my theory, doesn’t it,” lamented Chuck Fletcher.

Allen Porter had just returned from Las Vegas, where he had taken the depo-
sitions of two of the investigating officers from the Las Vegas Police Depart-
ment. In response to his subpoena duces tecum, the Police Department had
produced the two room keys found at the scene. One was for Room 407, one
for 409. The Polaroid photos that Porter had taken showed the cuts on the two
keys, and they were obviously different.
“Hmmm.” Allen Porter stared out the window of his twentieth floor office,
idly watching an airliner on final approach to the nearby airport. After a mo-
ment, he turned: “Trouble is, it doesn’t make sense. Remember Dr. Collins’s
deposition? He was very definite that the key turned in the lock. I don’t think
he was lying, and the man is a surgeon, he’s trained to observe details.”
“Then how can you explain the two keys? I thought you were going to file a
Rule 34 request for entry so that you could try the keys out in the actual doors.”
“I did. We tried it. The Room 409 key wouldn’t turn in the lock for Room
407. The key fit in the keyway, but it wouldn’t turn.”
“Any chance they could have changed the locks since then?”
“They claimed not, but let’s not take their word for it—better ask for the
lock maintenance records for that floor in our next request for production of
documents.”
Chuck thought for a moment. “So then, how do you explain Dr. Collins’s
testimony that the key turned in the lock?”
“I think you were right the first time. Dr. Collins had a key to 407.”
“But you just said that the keys—”
“What if somebody switched them?”
“But they’ve been in police custody, right? Surely the police wouldn’t
have any reason. . . .”
“Not the police. How about one of the hotel people, covering up a mistake?”
REQUESTS FOR ADMISSIONS

When we finally get to present our case to a jury, we would like to concentrate
on the most compelling parts of our case and not waste time on tedious side
issues that the jurors will find uninteresting. Unfortunately, a typical lawsuit
involves a great many items of proof, some of which are unexciting but never-
theless important. In our hypo, for example, one of the elements of damages
will be Shannon’s medical bills. Before he will be allowed to argue to the jury
that, for example, “my client incurred over $20,000 of medical bills as a result
of this incident,” Shannon’s attorney will first have to prove that each one of
the medical bills is genuine, that each related to treatment for the injuries that
she is suing about and not some unrelated medical problem, that each of the
bills was for treatment that was medically necessary, and that amounts of all
the separate bills, if added together, add up to the amount Shannon is claim-
ing for that item. Must we really spend trial time going through clerical minu-
tiae capable of rendering a tax accountant comatose with boredom?
One way in which we can short-cut some of the tedium is to take the facts
that the opposing party does not seriously dispute and get him to admit them in
advance of trial—if our opponent has already admitted a fact, we no longer need
to take up trial time proving it. FRCP, Rule 36, provides a procedure for obtaining
such admissions of fact: the request for admissions. A request for admissions is
a court paper, similar in appearance to a set of interrogatories, that lists facts that
we want to establish and asks the opposing party to admit or deny them.
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Why would someone whom we are suing want to help us by admitting facts
that we need in order to prove our case? Why would our opponent not simply
deny everything and make us prove each fact on our own? The rules impose a
penalty on litigants who refuse to admit facts that are not genuinely in dispute.
Returning to our hypo, suppose Allen Porter serves a request for admissions ask-
ing Park Hotels and Dr. Collins to admit that the medical bills in question are gen-
uine, medically necessary, and related to Shannon’s broken finger, and that they
total to a specified sum of money. If Park Hotels and Dr. Collins refuse to admit
these facts, and Allen Porter goes on and proves them the hard way, FRCP, Rule
37(c)(2), allows Shannon to ask the judge to assess the reasonable expenses of
making that proof—including her attorney’s fees—against Park Hotels and Dr.
Collins. The judge would be required by Rule 37 to grant Shannon’s request un-
less he or she finds that the facts in question were reasonably in dispute or that
there were other legitimate reasons for denying the request for admissions.
Requests for admissions can sometimes be used to nail down substan-
tive issues as well as technical or clerical ones. For example, Shannon could
conceivably try to establish the causation element of her claim for battery
against Dr. Collins by requesting that both defendants admit that her injuries
were caused by Dr. Collins’ physical contact. As a practical matter, however,
admissions of this kind are usually not very helpful, since they relate to facts
that will be obvious when the main witnesses tell their stories.
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DISCOVERY OF EXPERT OPINION

Most of the witnesses who testify in a trial are “fact” witnesses—people who
describe some event that they personally observed. Another category of wit-
nesses is becoming more and more important as society becomes more and
more dominated by complex technologies: expert witnesses. Expert witnesses
are employed to give opinions on specialized subjects that ordinary jurors
might not be able to grasp on their own. Expert witnesses are people who can
be proven to have training and experience in some specialized field involved
in the suit, say, some branch of medicine. Usually, each party locates, hires,
and pays her own expert witnesses; university faculties are a fruitful source of
experts on almost everything imaginable. Although expert witnesses are the-
oretically impartial in their opinions, lawyers naturally try to find experts
whose “impartial” opinions will most help their cases; thus there is often a cer-
tain element of advocacy in expert testimony.
Expert testimony may play a decisive role in the outcome of some law-
suits. In our hypo, there will certainly be medical testimony (of which we will
say more later). There will also quite likely be testimony from experts on doors
and locks as all parties try to prove whether Shannon’s door could have closed
incompletely or whether a particular key could have opened the lock.
It goes without saying that each party will want to find out, well before
trial, who the opposing party’s experts are, what their opinions are, and how
those opinions were arrived at. Because expert testimony represents a sub-
stantial investment of work and money by the party who hires the expert,
there are special limitations on discovery of experts.
INDEPENDENT MEDICAL EXAMINATIONS

Lawsuits often involve physical injuries, and the amount of money to be
won or lost depends on how severe and how permanent the injuries are.
Proof usually requires testimony by doctors. In our hypo, for example, Shan-
non’s doctor will be asked to testify about Shannon’s broken finger—how
Putting It it was treated, how much the treatment cost, whether any future treatment
Into Practice: will be needed—and to give an opinion about whether there is any permanent
Suppose Shannon claims impairment.
ongoing anxiety attacks Naturally, the hotel’s lawyers are not about to take Shannon’s doctor’s
as a result of her word for these things. They will want a doctor of their own choosing to con-
confrontation with Dr. duct an examination and give an opinion. Can they do this? Yes, the rules of
Collins. How will the hotel procedure (see FRCP, Rule 35) allow a party to file and serve a Notice of Inde-
likely test the validity of pendent Medical Examination (often called an IME) on another party whose
her claims? medical condition is a legitimate issue in the suit. This notice, which is usually
a single page court paper, simply instructs the person to be examined to ap-
pear at the specified doctor’s office at the date and time stated.
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
“I don’t get it. You just let him talk and talk. You didn’t ask him anything
about giving Dr. Collins my room key, or about switching the keys. He didn’t
admit anything at all.” Shannon had just finished reading the completed tran-
script of the deposition of Arnie Trevayne, the desk clerk.
Allen Porter smiled. “This isn’t L.A. Law. People don’t usually break
down and confess at depositions. Even if he had wanted to, his lawyer would
have stopped him. Anyway, that isn’t the purpose of depositions.”
Shannon was not satisfied. “Then what is the purpose?”
Porter leaned back in his executive chair and took a sip of coffee before
answering. “There were several purposes. One is to get his story on the
record so he can’t change it later. The more he talks, the better, it just gives
us more ammunition to use at trial. That’s why I always begin a deposition
by encouraging the witness to tell his story in his own words. Another purpose
is to get a chance to see what kind of witness he’ll make. I thought he seemed
kind of easily provoked, didn’t you, Chuck? I might try pushing his buttons a
little at trial, if this thing doesn’t settle before then.”
Chuck nodded in agreement. Porter looked at Shannon and continued,
“Also, you notice he lied about saying that the doors didn’t close right, as the
hotel’s lawyers will be finding out right about now—we mailed out our
mandatory disclosure statement yesterday, and we had to disclose the con-
versation with Chuck, of course. We’ll have some fun watching them try to
scramble out of that one.”
MANDATORY DISCLOSURE STATEMENTS

AND LIMITATIONS ON DISCOVERY
Discovery, like everything else in a lawsuit, is an adversarial process. It can be
used to obtain evidence, but it can also easily be used to make the litigation
expensive for the opposing party. Any experienced litigator can dictate, in an
hour, interrogatories that will take many hours and cost thousands of dollars
to answer. Disputes over discovery, each requiring a motion, a response, and
perhaps a hearing before the judge, bring additional cost and delay.
Courts have begun responding to the growing perception of wastefulness
and gamesmanship in the discovery process by creating new rules intended
to reduce the use of discovery as a tactical weapon and to minimize the time
spent by judges in refereeing discovery squabbles. Initially, this response took
the form of limitations; for example, requiring court permission to submit
more than twenty-five interrogatories, or limiting depositions to no more than
four hours. Such limitations are now becoming widespread. They may take the
form of changes in the discovery rules themselves, but often such limitations
come from local rules, so it is wise to check.
More recently, some courts have been experimenting with an entirely new
way of conducting discovery: Instead of putting the burden on the party seek-
ing information to ask for it, mandatory disclosure rules require the party who
has information to turn it over to opposing parties without being asked! Such
rules list the categories of information that must be produced, and typically re-
quire exchange of relevant documents, disclosure of the names and addresses
of witnesses, and computations of damages, to give just a few examples. The
federal courts (see FRCP, Rule 26) have now joined the ranks of jurisdictions
with mandatory disclosure requirements; as with most federal rules changes,

most of the state courts will sooner or later follow suit.
Putting It
Into Practice: Your Local Notes
Suppose Arnie Trevayne
__________________________________________________________________________
admits to the hotel
lawyers that he gave Dr. __________________________________________________________________________
Collins the wrong key.
Under the discovery rules
in your state, must the In most cases, any competent litigator (or litigation paralegal!) would have
lawyer disclose this propounded interrogatories asking for all the same categories of information
information? Is the lawyer as those called for by the mandatory disclosure rules, so the rules do not
ethically obligated to change the end result very much. Mandatory disclosure can, however, create
disclose this information? some knotty ethical dilemmas, pitting a lawyer’s duty to disclose against the
client’s expectation that information given to the lawyer will be held in confi-
dence and kept private. Mandatory disclosure rules also lend some potentially
new strategic dimensions, since the punishment for failing to disclose can be
severe, especially if shown to have been deliberate. We will take up mandatory
disclosure and its various ramifications in detail in Workshop 12.
ENFORCEMENT
The motivations underlying the discovery process are simple: Each party tries
to find out about any “good evidence” that will help win the case and prefers
that any “bad evidence” remain hidden. Thus it is not uncommon, for exam-
ple, to receive answers to interrogatories in which some of the crucial ques-
tions are “inadvertently” skipped or answered evasively or incompletely. Par-
ties may fail to show up for depositions. Responses to requests for production
of documents may omit a few documents that the requesting party knows
should exist—or the responding party may deliver a huge quantity of docu-
ments, making it difficult to find the ones actually requested. Parties may even
answer discovery requests untruthfully.
The discovery rules must have “teeth” if the process is to work, and they
do. If a party fails to respond to a discovery request, or responds incompletely
or evasively, the requesting party can ask the judge to intervene via an appro-
priate discovery motion. We take up the subject of discovery motions in the
next chapter; see FRCP, Rule 37.
INFORMAL GATHERING OF EVIDENCE

Underlying the discovery rules is the supposition that the evidence we are try-
ing to obtain would not be given voluntarily. There is, of course, nothing what-
Putting It ever to prevent attorneys from gathering evidence by other means to the ex-
Into Practice: tent they can lawfully do so. There is no need, for example, to take depositions
Can you think of any of cooperative witnesses (except to preserve testimony if there is a risk that
evidence that might exist the witness cannot be produced at trial). It may be better, cheaper, and less re-
in Shannon’s case that vealing to your opponent if you simply talk to a witness informally or take a
could be obtained outside tape-recorded statement. Many documents can be obtained from sources
of the discovery process? other than an opposing party. Private investigators and paralegals can be em-
ployed to ferret out some kinds of information.
Do not become so immersed in the discovery rules that you overlook
these informal ways of obtaining evidence. One thing you can be sure of is that
any piece of evidence that shows up in a discovery response has been thought
about, thoroughly massaged, and defanged if possible, long before it gets to
you. Thinking up ways to get important bits of evidence without the opposing
party having to be involved is a great way for paralegals to be noticed (always
with the responsible attorney’s permission, of course).
Preparation of discovery requests and responses probably accounts for more
growth in paralegal employment than any other task in litigation. Although
preparation of discovery requests may be quite routine, responding to them
is a time-consuming job that can be delegated only to someone with thorough
training and good judgment. The trick is to comply fully with the rules without
giving the opposing side any unnecessary advantages, and errors can be ex-
pensive. Assembling and organizing the required documents and information
often involves considerable client contact, so many paralegals find this aspect
of discovery quite rewarding. Putting It
Another paralegal task is to analyze the information received from the op- Into Practice:
posing party in response to discovery. In document-intensive litigation (securities What do you imagine you
and antitrust cases are prime examples) it is not at all unusual to be confronted would be doing if you
with a room full of file boxes that must be gone through, page by page, evaluated, were assigned to help
indexed, and, increasingly, incorporated into a litigation support computer data- with the discovery in
base. This is paralegal work—having it all done by attorneys is too expensive, and Shannon’s case?
clerks and secretaries lack the training and legal judgment necessary to recognize
the evidentiary nuggets hiding in the mountains of irrelevant paper.
ETHICAL ETIQUETTE
A ttorneys are obligated to
“zealously” represent their
clients. In an effort to uphold this
Such abusive practices violate
both the Model Rules and Model Code.
Model Rule 3.4(d) specifically
standard of representation, some prohibits frivolous discovery requests
attorneys forget that the adversary and failure to comply with appropriate
process is, ideally at least, a search for discovery requests. In addition to
truth. In their desire to vigorously and requesting sanctions against a party
wholeheartedly advocate on behalf of that manipulates discovery for
their client, they lose sight of their role illegitimate purposes, any party that
as officers of the court and their falls victim to inappropriate discovery
ethical obligation to carry out their practices can sue for abuse of process,
duties with integrity and honesty. a tort claim that imposes liability on
Overzealousness manifests itself those who misuse the legal process.
in the discovery process in several Keep in mind that zealous
ways. It can be seen in the serving of advocacy does not entail withholding
voluminous interrogatories whose evidence that the rules of discovery
relevance is at best questionable and require be disclosed or concealing or
that serve more to inundate and destroying evidence that is adverse to
discourage the opponent than to a client [the latter being prohibited by
garner useful information. It can be Model Rule 3.4(a)]. Representation of
seen in repeated unfounded objections a client’s interests is to be carried out
to discovery requests and other tactics within the confines of the ethical rules
designed to obfuscate and delay the requiring attorneys to be honest and
truth-finding process. It is suspected in candid in their dealings with the court
the case of the attorney who provides and opposing parties.
many more documents than requested
in an apparent effort to hide the
“smoking gun.”
PRACTICE POINTERS
Working File
A working file is similar to a trial notebook, but it is prepared for your own
reference. You should take it with you to every meeting and to every out-of-
the-office assignment relating to the referenced case. Begin assembling this
file as soon as the client is accepted. Some of the items this file should contain
include the following:
■ Personal notes from client and witness interviews and investigative re-
search
■ Witness directory (names, phone numbers, and addresses of witnesses
along with notes)
■ Case memorandum (information about client, facts, causes of action, le-
gal issues, and discovery plan)
■ Central index (see Practice Pointer in Chapter 5)
■ Pleadings index (listing pleadings and relevant dates)
■ Discovery index (listing documents and relevant dates)
■ Deposition schedule (identifying who has been deposed, who the court
reporter was, and whether the transcript is available and has been
summarized)
■ Chronology of events (listing key events in chronological order and ref-
erencing key documents and testimony)
■ Case calendar (showing all the events leading up to trial)
■ Trial exhibit log (listing exhibits by number along with description of
exhibit and witness who introduced it)
This file can be used at trial if you are allowed to accompany the attorney
to the courtroom, assisting you as you take notes and monitor the evidence be-
ing introduced. Because this is probably the single most important file you will
work from throughout a case, make a backup diskette in case you lose the file.
TECHNO TIP
When preparing your pleadings files, change the names of the plaintiffs and
keep the forms for each type of case defendants.
separate. Contract cases, for example, Be very careful when using prior
generally require that the same types of documents as a base to create new
documents be requested. Tort cases ones. More often than you would like to
have a separate attachment describing know, the “old” case number creeps
the documents to be produced. If you into the new document, which can
are consistent in preparing the forms, cause misfiling of the document by the
after creating a new document (as sug- court clerk. Be alert to the need to
gested in Chapter 3), in most cases you change not only the names, but the
can use the find (search) and replace gender. You will look foolish if you refer
mechanism of your word processor to to the plaintiff, John Smith, as “her.”
S U M M A RY
Once the pleadings have been completed, the discovery motion process can
begin. Litigants use discovery to ferret out the facts of their opponent’s case
as well as to prepare their own. Under the federal rules any nonprivileged in-
formation that is “reasonably calculated to lead to admissible evidence” must
be disclosed. The primary mechanisms of discovery are depositions, inter-
rogatories, requests for admission, requests for production of documents and
things, and requests for medical examination.
By deposing witnesses, attorneys can question opposing witnesses in ad-
vance of trial and record their answers so that witnesses are less able to
change their answers at trial. Any party to a lawsuit is allowed to take deposi-
tions. Opposing counsel is allowed to make objections to questions asked, and
a court reporter is present to prepare a transcript. Such transcripts not only
help attorneys prepare for trial but they can also be introduced as evidence at
trial. Court clerks or judges issue the subpoenas that require witnesses to ap-
pear at depositions. Although in the past attorneys were allowed to depose as
many witnesses as they wanted, today most jurisdictions limit the number of
depositions by requiring attorneys to receive court permission before depos-
ing nonparties. Under the federal rules, parties must have court permission to
conduct more than ten depositions.
Interrogatories are written questions directed toward the opposing party.
Responding parties have limited time to serve the answers to the propounding
party and propounding parties are often limited in the number of interrogatories
they can propound without receiving court permission. Interrogatories are
cheaper than depositions and can be used to locate documents and potential wit-
nesses, but they are less flexible than depositions, can be used only on parties
(not witnesses), and are less effective in pinning down parties to specific details.
Requests for production of documents and things and subpoenas duces
tecum are used to obtain documents or physical objects. The former is used with
parties to a lawsuit and the latter with nonparties. The responding party complies
by either mailing or delivering copies of the documents. Permission to enter a lo-
cation may be obtained by filing a request for entry upon land for inspection.
Expert witnesses often play an important role in litigation. Their experi-
ence and training in a specialized field allow them to offer opinions that can be
critical to a case. Although opposing parties want to be able to examine expert
witnesses before trial, the procedural rules limit the discovery of experts.
When a party’s medical condition is at issue, the opposing party may
serve a Notice of Independent Medical Examination, requiring that person to
be examined by a specified doctor at a specified time and place.
Limitations have been imposed on discovery to reduce the costs and delay
caused by abusive discovery practices. More recently mandatory disclosure rules
have been imposed, requiring parties to disclose information even without being
asked to do so. Typically these rules require the disclosure of names and ad-
dresses of witnesses, the computation of damages, the exchange of documents,
and the production of certain categories of information. These rules can create
ethical dilemmas for litigators when their obligation to disclose conflicts with
their duty to preserve the confidentiality of their client. If a party fails to comply
with these rules, the opposing party may file a discovery motion with the court.
Legal assistants play a key role in the discovery process. They can con-
duct investigations as well as assemble, organize, and analyze documents and
other information. Their training allows them to carry out detailed and pains-
taking tasks that would be too expensive for an attorney to perform and that
are beyond the expertise of clerks and legal secretaries.
KEY TERMS
Admit Impeach Request for entry upon land

Court reporter Interrogatory for inspection
Deponent Mandatory disclosure rules Request for production of docu-
Deposition Notice of Independent Medical ments and things
Discovery Examination (IME) Responding party
Evidence Propounding Subpoena
Examine Propounding party Subpoena duces tecum
Exclude Request for admissions Transcript
Expert witness
Workshop Alert
Introduction to Discovery Workshops
Workshop 9 Document Discovery
Workshop 10 Written Discovery
Workshop 11 Responding to Discovery Requests
Workshop 12 Disclosure Rules and Limitations on Discovery
Workshop 13 Depositions and Working with Witnesses
REVIEW QUESTIONS
1. What are the two types of evidence that can be What is the difference between the two proce-
admitted at trial? Who decides what evidence dures?
will be excluded?
6. What are expert witnesses and why do attor-
2. What is the purpose of discovery? What are the neys use them?
primary tools of discovery?
7. What is the purpose of serving a Notice of Inde-
3. What transpires at a deposition? pendent Medical Examination?
a. What two purposes does a deposition tran- 8. Why have courts been limiting the discovery
script serve? process in recent times? Give some examples of
b. Can witnesses be compelled to attend a dep- recent changes in the rules surrounding dis-
osition? How? covery.
c. What types of limitations are currently being
imposed in reference to depositions? 9. What is the purpose of a motion to compel dis-
covery? What are the possible consequences of
4. What is meant by the phrase propounding inter-
failure to comply with a motion to compel?
rogatories?
a. What is the advantage of using interrogato- 10. What are two ways in which paralegals can as-
ries rather than deposing someone? sist in the discovery process?
b. What is the advantage of deposing someone
11. Use the following groups of words in one sen-
rather than using interrogatories?
tence:
c. Can any witness be required to answer in-
terrogatories? a. Examined; transcript; court reporter; sub-
poena
5. What are two procedures that can be used to b. Expert witness; subpoena duces tecum; mo-
compel someone to turn over documents? tion to compel discovery; IME
PRACTICE EXAM
1. Discovery involves c. the procedural rules used to allow attorneys

a. obtaining evidence. to take as many depositions as they wanted
b. preparing a record that can be used at trial. to take.
c. establishing facts. d. all of the above.
d. all of the above. 6. In contrasting depositions with interrogatories
2. A pretrial motion a. interrogatories allow greater flexibility.
a. cannot result in a final disposition to a case. b. interrogatories are used to hone in on details.
b. can resolve a procedural dispute. c. interrogatories are better used to locate
c. is prepared by the judge. documents and potential witnesses.
d. is written to another party. d. depositions can be used only with parties.
3. Under the federal rules information must be 7. Responding parties to requests for production
disclosed a. must actually show up and deliver the re-
a. even if it is privileged. quested documents.
b. only if a party can prove definitively that it b. must file a written response indicating what
will be admissible at trial. documents have been produced.
c. if it is reasonably calculated to lead to ad- c. must indicate why they object to requests they
missible evidence. believe the opposing party is not entitled to.
d. if it is helpful to the party seeking it. d. b and c.
e. all of the above.
4. The purpose of a deposition is
a. to record witnesses’ answers so they are 8. Mandatory disclosure rules
less able to change their answers at trial. a. create ethical dilemmas for litigators.
b. to allow attorneys to question opposing wit- b. almost always require competent attorneys
nesses before trial. to disclose much more than they would have
c. to make it easier to examine witnesses at under the old rules of discovery.
trial. c. have not been adopted by the federal
d. all of the above. courts.
d. require disclosure only if the opposing party
5. In reference to how many depositions may be
requests it.
conducted
a. some jurisdictions require court permission 9. A party may file a discovery motion if
before allowing attorneys to depose non- a. an opposing party fails to respond to a dis-
parties. covery request.
b. some jurisdictions require court permission b. an opposing party responds evasively to a
if an attorney wants to take more than ten discovery request.
depositions. c. a party fails to show up for a deposition.
d. if any of the above occur.
FILL IN THE BLANKS

10. To get an answer to a pertinent legal question 13. Under the _______________ disclosure rules a
from a judge one can file a _______________ . party must disclose evidence even without being
11. Evidence at a civil trial consists primarily of asked to do so.
_______________ and _______________ evidence. 14. A _______________ is a procedure in which a
12. Evidence that is prohibited from being heard witness is required to appear at a specified time
at trial is said to be _______________ , whereas and place to answer questions.
evidence that can be heard is said to be 15. Court reporters prepare _______________ of
_______________ . depositions often using a computerized shorthand
machine.
16. A _______________ is an order of the court 20. Two procedures used to compel someone to
directing a witness to appear at a specified time turn over documents are _______________ (which
and place and give testimony. is used to obtain documents from parties to a suit)
17. Under the federal rules attorneys must have and _______________ (which is used to obtain
court permission to take more than documents from nonparties).
_______________ depositions. 21. To obtain permission to inspect an accident
18. An _______________ witness is hired to give an site, a party should file a _______________ .
opinion on a scientific or technical question. 22. If the medical condition of a party is at issue,
19. The party that prepares _______________ , the opposing party may request an
which are written questions directed to the _______________ .
opposing party, is called the _______________
party; the party supplying the answers is called
the _______________ party.
TRUE OR FALSE
23. The jury decides what evidence will be ex- 35. Many courts place limits on the number of in-
cluded at trial. T F terrogatories that can be propounded without
seeking court permission. T F
24. Under the common law parties came to trial
with whatever evidence they had at the time. 36. Responding parties have a limited time to serve
T F the answers to interrogatories. T F
25. Only parties to a lawsuit are allowed to take 37. Requests for production and subpoenas duces
depositions. T F tecum serve identical purposes. T F
26. Only the attorney conducting the questioning is 38. A discovery procedure other than requests for
allowed to be present during a deposition. production must be used to obtain physical ob-
T F jects. T F
27. Transcripts are made only of testimony given at 39. Expert witnesses are treated like any other wit-
trial. T F ness for purposes of discovery. T F
28. Judges are not present at depositions so objec- 40. Experts are rarely used in civil litigation today.
tions must be ruled on later. T F T F
29. A witness who fails to appear at a deposition 41. A personal injury plaintiff should not be sur-
can be fined or jailed. T F prised if defense counsel requests an IME.
T F
30. Only judges can issue subpoenas. T F
42. Mandatory disclosure rules were enacted in re-
31. Some courts place time limits on depositions. sponse to the gamesmanship and wastefulness
T F of abusive discovery practices. T F
32. Expert witnesses can usually be deposed with- 43. Legal assistants can assist in the discovery
out receiving permission from the judge. T F process by coming up with ways to acquire ev-
33. Any witness in a lawsuit can be made to answer idence without involving the opposing party.
interrogatories. T F T F
34. Interrogatories are served on the party whose 44. A critical role of legal assistants in discovery is
answers are desired. T F the assembling, organizing, and analyzing of
large volumes of documents. T F
LITIGATION LINGO
Fill in the missing letters.

1. __P__I____ A time and a place for an attorney to ask questions of a witness
2. _R____R___ A record prepared by a court reporter
3. __P___H To discredit
4. __C____C__ Bring with you
5. _X____E To question
6. __O_O___ To send interrogatories
7. _X____ Someone with specialized knowledge
8. __T_R______R_ Written question directed at another party
9. _R___C____ Request for _______________
10. _ O _ _ _ _ OF _ _ _ Order requiring plaintiff to be examined by a medical doctor
11. __S__O____ Mandatory rule requiring party to turn over information without being
asked to do so
12. _X___D_ To reject evidence
13. _D___ To allow evidence
14. _D__S____ Discovery mechanism that asks party to admit or deny
15. __P____T Person being deposed
16. ___C___R_ Process of obtaining information from the other side during a lawsuit
17. __B__E__ Court order directing a witness to appear to testify
18. ___P__T___ Request for entry upon land for _______________
the question.
1. Suppose the drunk driver that struck your car 2. Suppose you decide to send interrogatories to
lives out of state. the tenant who has stopped paying rent.
a. Can you depose him? a. Will you be limited in the number of inter-
b. What must you do in order to depose him? Is rogatories you can send?
there a time limit during which you must de- b. Can you expand on the number of questions
pose him? you can ask by dividing each interrogatory
c. Suppose he is critically ill and says he is not into subparts?
able to travel. What can you do? c. If the tenant is a business owned by several
d. Suppose you want to depose the driver plus partners, how many interrogatories can you
five other witnesses. Can you depose all of send to each partner? To whom should you
them or are you limited in how many people send the interrogatories?
you can depose? d. What format do your local rules require for
e. Suppose you find out that the opposing interrogatories?
party will be calling a toxicologist to testify e. On what grounds could the tenant object to
on his behalf. What must you do to depose specific interrogatories?
the toxicologist? f. How long will the tenant have to respond to
the interrogatories?
LITIGATION LOGISTICS continued
the question.
3. Suppose you want to obtain your cousin’s finan- 4. Suppose you sue your contractor for the prob-
cial records for his business in your suit against lems you are now experiencing with your new
him for monies he has refused to pay you. home.
a. How would you go about obtaining them? a. Under the rules of your state is there any ev-
b. How would you obtain accounting state- idence he will be obligated to disclose to you
ments from his accountant? without you asking for it? If so, what is that
c. Suppose the business is an apartment com- evidence?
plex and you would like to be able to see b. You intend to have a contractor testify about
what the current condition of the complex is the standard of care expected in the con-
but your cousin refuses to let you on the struction industry. Will the defendant be
premises. How would you get court permis- able to determine in advance what the na-
sion to inspect the premises? How long will ture of this testimony will be? Will there be
your cousin have to respond to this motion? any limitations on what the defendant will
d. Suppose your cousin’s attorney claims that be able to discover about this testimony?
some papers you have requested in your dis- c. Is there any limit in your jurisdiction to the
covery requests are privileged. How would number of requests for admission you will
you go about determining if this claim is valid? be able to make?
1. What types of discovery do you envision occur- c. Cousin refuses to pay you a percentage of
ring in each of the following cases? Who would his business.
you depose? What types of discovery do you d. Karate instructor breaks your nose.
anticipate the defense will use? e. Contractor does shoddy work on house.
a. Drunk driver sideswipes your car.
move out.
CHAPTER
5
ROAD MAP
OF A LAWSUIT:
MOTIONS
OBJECTIVES
■ What motions are and how they are

presented and decided
■ The various types of motions, both

on the merits and those relating to
discovery
■ Tactical reasons for preparing and

presenting motions
92 CHAPTER 5 Road Map of a Lawsuit: Motions
hypothetical
L
“ ook, Allen, you ought to seriously consider this. Your client’s real beef isn’t
against the hotel—we didn’t barge into her room in the middle of the night,
we’re not the ones who broke her finger. This way she gets some money in her
pocket, we’re out of it, which will make your case a lot less complicated, and
you can go after Collins for whatever you think you can win.”
“Well, Gail, I appreciate the offer, I really do, and of course I will dis-
cuss it with my client and call you back. But I have to tell you, in all can-
dor, I don’t see it quite the same way—this case isn’t just about a broken
finger. Shannon’s career is in ruins, her health is shot. . . . And you and I
both know that if your client is found negligent, which I don’t think will be
that hard to prove here, you’ll be looking at a much bigger number than
$20,000.”
“You could also be looking at zero. You have to win the case to get any-
thing, and I think I have a pretty good shot at getting rid of the whole thing on
a motion for summary judgment.”
MOTION PRACTICE
Motions are simply formal requests for the judge to do something—usually, to
enter an order or make a ruling of some kind. Because litigation is a contest be-
tween adversaries, it is crucial to be sure that judges hear from both sides before
making important rulings. As a practical matter, in modern court systems, this is
accomplished by requiring essentially all communication with the judge to be by
motion, coupled with ethical rules prohibiting either attorney from contacting
the judge without the opposing attorney’s knowledge.
HOW MOTIONS ARE PRESENTED

Except during trial, motions are submitted in writing. Written motions are
court papers, beginning with a caption, then stating briefly what the moving
party is asking the judge to do. It is also customary to state on the face of the
motion which rule of civil procedure authorizes the type of motion being
made. All motions except the very simplest are accompanied by a written le-
gal argument, called a memorandum of points and authorities, usually at
least several pages long, laying out in detail all of the reasons why the judge
should do as the moving party is asking. The format and layout is quite stan-
dard (see Figure 5–1 for an example) and applies to all written motions, but sty-
listic variations exist from one court system to another. It is a good idea to im-
itate the format and style used by established lawyers in the particular court
in which a motion is to be filed—stylistic inventiveness tends to be interpreted
as a sign of inexperience; see FRCP, Rule 7(b).
Your Local Notes

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CHAPTER 5 Road Map of a Lawsuit: Motions 93
Figure 5–1 What Motions Look Like
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

)
) NO. 95-770 PHX-JML
Plaintiff, )
) MOTION FOR PARTIAL
v. ) SUMMARY JUDGMENT
)
ARTHUR COLLINS, et ux., et al., )
)
Defendants. )
_____________________________________ )
Plaintiff respectfully moves pursuant to Rule 56, Federal Rules of Civil Procedure, for partial
summary judgment in favor of plaintiff and against defendant Park Hotels Group, Inc. on the issue
of liability.
This motion is based upon the affidavit of Shannon Martin and upon the accompanying
Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED this _____ day of ____________________ , 19_____ .
SIMON & PORTER
Allen Porter
Attorneys for plaintiff
(Memorandum of points and authorities giving detailed legal argument follows)
How many kinds of motions are there? As many as there are things that you
could ask the judge to do. Some kinds of motions are appropriate to almost every
case, and have commonly accepted names: Motions for summary judgment
(FRCP, Rule 56), motions to dismiss [FRCP, Rule 12(b)], and motions to compel
discovery (FRCP, Rule 37). You are not limited to these standard categories, how-
ever—here, inventiveness is entirely appropriate and often indispensable. If you
need to ask the court for something that does not fit one of the garden-variety
motions that you know about, then create one! Simply change the title as needed.
When you have written your motion and the supporting memorandum, Putting It
the next step (as with all court papers) is to file it with the clerk of the court Into Practice:
and serve copies on all other parties. Local rules may also require delivering Under your local rules
a copy to the assigned judge. The opposing party is then given some period of what would you have to
time in which to file and serve a written response. The response is a court pa- do to file a motion in
per similar to the motion, and is likewise supported by a memorandum of Shannon’s case?
points and authorities, this time giving all of the opposing party’s reasons why
the judge should not do what the motion is asking; see FRCP, Rule 56.
Your Local Notes

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How does the responding party know when the response will be due? The
answer depends on the court. Some courts set a briefing schedule and notify
Putting It the attorneys. In others, rules of procedure or local rules establish a set num-
Into Practice: ber of days for response. It is important to know how the system works in each
In your state how much court in which you will be litigating, because missing response deadlines is haz-
time would Dr. Collins ardous. Many judges simply dispose of unresponded-to motions summarily—
have to respond to a that is, they grant the motion immediately unless there is some obvious reason
motion for summary not to. Note, however, that recent case law has, in many states, required the
judgment filed by Allen court to review the entire record prior to granting a motion for the sole reason
Porter? that a response has not been filed.
Your Local Notes

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After the opposing party responds, the moving party is allowed to file a
written reply. The format is the familiar one, a court paper accompanied by a
short memorandum, this time rebutting the arguments made in the response.
Notice the three-stage sequence: Party A makes an argument, party B makes a
response, and party A replies to the response. This pattern of argument occurs
over and over in litigation—motions, jury summations, appellate briefs. Al-
most always, the sequence is argument, then response, then reply.
Motions, responses, replies, and the accompanying memoranda are re-
ferred to generically as motion papers.
HOW MOTIONS ARE DECIDED

After all the motion papers have been filed and served, the most important
motions will be decided after a hearing before the judge. A hearing is a pro-
ceeding at the courthouse in which the judge listens to oral argument—that
is, spoken presentations—from each of the opposing attorneys and has an op-
portunity to ask them questions. Depending on the court and the judge, hear-
ings can be very formal affairs, held in the courtroom with a bailiff and court
reporter present and the attorneys standing at a lectern to deliver argument.
Or they can be quite informal, held in the judge’s chambers (the judge’s pri-
vate office), with the judge and the attorneys seated comfortably around the
judge’s desk, usually with a court reporter present.
Your Local Notes

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In theory, oral argument follows the three-stage sequence with the moving
attorney speaking first, the opposing attorney second, and the moving attor-
ney then giving a brief reply. In practice, most judges feel free to interrupt with
questions at any time, and some do not enforce the idea of the attorneys tak-
ing turns—in some courts arguments on motions can descend into a kind of
free-for-all of interruptions and counter-interruptions.
Not all motions are scheduled for hearings. Given their increasingly impos-
sible caseloads, many judges prefer not to spend time listening to attorneys give
speeches repeating the same arguments that they have made (or should have
made!) in their written memoranda. In many courts, hearings are scheduled only
if specifically requested, and even then the judge is always free to cancel the
hearing and issue a decision based on the written memoranda alone. The lesson
should be clear: Always write a legal memorandum as if it will be the only argu-
ment on your side that the judge will see. Never assume that you can patch any
holes at the hearing, because there may not be one; see FRCP, Rule 78.
Your Local Notes

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How do the parties learn of the judge’s decision? Sometimes, the judge will
announce a decision at the conclusion of the hearing. More commonly,
though, the judge will take the motion under advisement (also called under
submission), meaning that she will issue a decision later. This gives the judge
time to reflect on the arguments and to reread the memoranda if desired. It
also lets the judge avoid the potentially awkward task of giving the loser the
bad news face to face. The judge’s order (a written decision either denying or
granting the motion), whenever it is arrived at, will be formally communicated Putting It
to the parties via a minute entry (see Figure 5–2). The term is another of those Into Practice:
throwbacks to the courts of yore, where the clerk kept the “minutes,” entering Suppose Dr. Collins files
everything that happened in court meticulously in a minute book. In modern a motion for summary
courts, each of the rulings of the judge is typed on a printed form, with one judgment. How will that
copy mailed to each of the attorneys involved in the case to which the ruling motion be decided? How
pertains, one copy placed in the court file for that case, and one copy added will he be notified of the
to a file in which all of the minutes of that judge are kept in chronological or- outcome?
der. A word of caution: Don’t waste valuable relationships by constantly call-
ing the judge’s secretary to find out if a decision has been made!
“Gail Stoddard speaking.”
“Hi, Gail, this is Allen Porter. I just wanted to let you know I did discuss
your settlement offer with my client, and, frankly, $20,000 just isn’t the ball-
park that we’re playing in.”
Figure 5–2 Sample Minute Entry
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA
February 10, 1998

Minute Order
Case No. 2:97-cv-00551
Title: Johnson v. USA
DOCKET ENTRY
MINUTE ORDER: per Arbitrator Edwards’ letter dated Feb. 5, 1998, counsel/parties are advised that the
arbitration hearing is set for 10:00 AM on May 28, 1998 to be held at the Law Office of Harry L. Howe,
10505 No. 69th St, Suite 1300, Scottsdale, Arizona (cc: all counsel/Edwards) [14-2]
CASE ASSIGNED TO:

Hon. Stephen M McNamee, Judge
“Do you have a counteroffer?”

“No, not really—our original settlement demand was for $400,000, as
you’ll recall, and if you want to get somewhere up into that range we would
probably negotiate, but I really don’t see any point in lowering our demand
in response to such a low offer.”
“Well, counselor, you’ll be getting my motion for summary judgment.”
“That’s fine, Gail—maybe your clients will take this more seriously after
the court denies the motion and they know they can’t avoid going to trial.”
SIDEBAR
Claims
One of the best ways of analyzing something is to break it up into smaller
pieces that can be more easily understood. That is exactly what we do in com-
plicated lawsuits. We think of the suit as being composed of separate claims
or causes of action (the terms are interchangeable), and deal with each one
individually.
To oversimplify only slightly, a claim is a “chunk” of the lawsuit that could
be sustained as a separate lawsuit all by itself. For example, our hypo involves
a claim by Shannon against the hotel for negligence, another claim by Shannon
against Dr. Collins for negligence, a claim by Shannon against Dr. Collins for
battery, a claim by Dr. Collins against Shannon for battery, and so forth. Each
of these claims could, standing alone, potentially sustain a lawsuit, even if all
the others were dropped. Each claim is asserted by at least one party and de-
fended by at least one other party. (Notice that the party defending a claim is
not necessarily a defendant—remember, as discussed in Chapter 3, the defen-
dant can bring counterclaims against the plaintiff, and defendants can make
cross-claims against each other.)
MOTIONS ON THE MERITS

Not all motions pertain to procedural minutiae or to discovery disputes. Some,
such as motions to dismiss and motions for summary judgment, call for the judge
to decide once and for all whether a party’s claim or defense is good enough to
go forward or so lacking in merit that it should be declared dead on the spot. As
you can readily imagine, judges have little enthusiasm for wasting days or weeks
of trial time on a case that could never be won in the first place, and these pro-
cedures give them plenty of scope to weed out such cases at an early stage.
This culling process is done one claim at a time. (Please take the time to
read and understand the sidebar. The concept of a claim is important in pro-
Putting It cedural law.) Each claim stands or falls as a separate entity. The judge can
dismiss a claim prior to trial—that is, declare it invalid. The judge can also de-
Into Practice:
cide in favor of a claim before trial and grant judgment on it. Either way, the
What would be the lawsuit is over as to that claim. The third possible outcome is that the claim
consequence for Shannon does not get weeded out and has to be decided at trial; see FRCP, Rule 56.
if the judge dismissed her
claim for negligent
Your Local Notes
infliction of emotional
distress against the hotel __________________________________________________________________________
and Dr. Collins? __________________________________________________________________________
Motions to Dismiss—Motions to dismiss are always made by a party who is

defending a claim. (This is not necessarily the defendant. Remember that there
can be counterclaims, cross-claims, and third-party claims. For simplicity,
however, the discussion to follow refers to claims made by plaintiff and de-
fended by defendant.) A motion to dismiss asks the judge to find that there is
something wrong with a claim as it appears in plaintiff’s complaint. The judge
does not consider any evidence, or worry about whether there is any proof to
support the claim. In deciding a motion to dismiss, the judge must assume that
every allegation in plaintiff’s complaint is true and can be proven. The claim
will be dismissed only if the judge decides that plaintiff must lose even if he
proved everything alleged in the complaint.
Suppose, for example, that Shannon’s complaint included claims not only
against Park Hotels Group, Inc. (the owner and operator of the hotel) but also
against several of its shareholders who were not personally involved in cor-
porate management. Such claims are “dead on arrival”—the law does not
make shareholders personally liable for torts committed by a corporation. It
does not matter whether Shannon has enough evidence to convince a jury that
the hotel was negligent; either way, the shareholders are not liable. Because
we can dispose of these claims merely by knowing what the law is, without
worrying about the facts, we say that the claims are defective as a matter of
law. The shareholders would move to dismiss the claims against them, and the
motion would be granted. The lawsuit would continue against the other de-
fendants, but would be over as far as the shareholders were concerned.
Where a claim is defective because the law simply does not allow that kind
of claim, as in the foregoing example, the motion to dismiss is for failure to
state a claim. There can be other reasons for moving to dismiss. Lack of juris-
diction is a common ground, and FRCP, Rule 12(b), lists several others such as
improper venue, insufficiency of process, insufficiency of service of process,
failure to state a claim and failure to join a party under FRCP, Rule 19.
Your Local Notes

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Motions to Strike—What if defendant’s answer attempts to raise a defense

that is defective as a matter of law? Can you move to dismiss a defense? No,
only claims can be dismissed. To eliminate an insufficient defense, the remedy
is a motion to strike. Suppose the hotel’s answer to Shannon’s complaint in-
cluded an allegation that Shannon’s negligence claim is barred by the statute
of limitations. When we research the law, we find that the statute of limitations
requires negligence suits to be brought within two years after the cause of ac-
tion arises. Because Shannon’s suit was filed only a few weeks after her injury,
we can easily conclude that the statute of limitations defense is invalid, with-
out knowing anything about the facts of the case. Shannon (through her
lawyers, of course) can move to strike the statute of limitations defense from
the hotel’s answer; see FRCP, Rule 12(f).
Your Local Notes

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Motions for Summary Judgment—A motion for summary judgment can

be made by either party, and, in contrast to motions to dismiss, the strength
of each party’s evidence is very much a factor. In fact, the main purpose of mo-
tions for summary judgment is to decide claims immediately—“summarily”—
when the evidence is so lopsided that a reasonable jury could decide the case
in only one way. If the evidence is so strongly in favor of the defendant that a
reasonable jury could never find in favor of the plaintiff, then defendant is en-
titled to summary judgment, and plaintiff loses, then and there. If defendant’s
evidence is so weak that a reasonable jury must find for plaintiff, then plaintiff
should be granted summary judgment. The outcome in both situations is the
same as if the case had proceeded to trial in the normal way; the result is sim-
ply reached sooner, with no trial and much less expenditure of effort. To grant
summary judgment for either party, the judge must first find that there is no
“genuine issue of material fact”—that is, that the evidence points to only one
reasonable conclusion.
How does the judge evaluate the evidence without holding a trial? Docu-
mentary evidence is no problem—it can simply be submitted with the motion.
To establish what a cooperative witness would testify to, a party can submit the
witness’s affidavit. (Recall that an affidavit is a notarized written statement by a
witness.) If it is necessary to establish what an adverse party’s testimony would
be, deposition transcripts or answers to interrogatories can be submitted.
As a practical matter, when a party moves for summary judgment on a
claim, the motion will include the evidence that favors the moving party. It is
then up to the opposing party to come forward with enough conflicting evi-
dence to convince the judge that there is a genuine issue of fact. The objective
in defending against a motion for summary judgment is to persuade the judge
that the facts are in dispute—and factual disputes must be left for the jury.
Even if the judge decides that there is conflicting evidence about some fac-
Putting It tual issue, the judge may grant “partial” summary judgment disposing of the
Into Practice: rest of the claim. Suppose, for example, that it is clear that defendant is liable
On what basis might Dr. to plaintiff, but there is a genuine dispute about the amount of compensation
Collins move for a to which plaintiff is entitled. Plaintiff may then move for partial summary judg-
summary judgment? ment on the issue of liability. If the motion is granted, there will still need to be
a trial, but the jury will not decide who wins—its only function will be to de-
cide the amount of damages to be awarded; see FRCP, Rule 56.
Your Local Notes

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“All rise.”
The thirty or more attorneys who were gathered in the gallery of the large
courtroom for the court’s weekly motions calendar broke off their conversa-
tions and got to their feet. The judge emerged from his private entrance be-
hind the bench and ascended to his chair. The bailiff continued, “The United
States District Court for the District of Arizona is now in session, the Honor-
able Jerome Lewis presiding. Be seated.”
The clerk announced Allen Porter’s motion first. “Number 95-770 civil,
Martin versus Collins, et al., defendant’s motion for summary judgment. Ap-
pearances, counsel?” She handed a file up to the judge.
A conservatively dressed young woman rose, walked over to the lectern,
and leaned over to speak into the microphone. “May it please the Court, Gail
Stoddard, of Crandall, Elkins, appearing for defendant Park Hotels Group,
Your Honor.” She stood to the side to let Allen Porter approach the micro-
phone.
“Allen Porter, Simon and Porter, for plaintiff Shannon Martin, Your
Honor.”
“Are you there, Mr. Yarborough?” The judge leaned over toward the
speaker telephone on the clerk’s bench. “Good. The record will show the ap-
pearance of Roger Yarborough, telephonically from Dallas, for defendant
Collins.”
The judge leafed through his file. “I have read your motion papers. As I
understand it, your client, Mr. Porter, was asleep in her room at Ms. Stod-
dard’s hotel, when Mr. Yarborough’s client turned up in her room, and she
thought he was attacking her and she shot him. Is that about it?”
“That’s exactly right, Your Honor, and of course the reason for the claim
against the hotel is that Dr. Collins could not have gotten into the room ab-
sent the hotel’s negligence.”
The judge turned to Gail Stoddard. “Ms. Stoddard?”
“Thank you, Your Honor. Our motion is very simple—there is no evi-
dence that the hotel was negligent. The key that Dr. Collins had, which has
been in police custody the entire time, could not have unlocked plaintiff’s
door. There is no dispute about that. Therefore, either the door was already
unlocked, or plaintiff opened it from the inside. The usual notices were
posted on the door, warning guests to keep the doors locked. We sympathize
with plaintiff and we certainly regret what happened, but Banbury Park Ho-
tel did not injure her—Dr. Collins did.”
The judge’s expression was impassive. “Mr. Porter?”
“Thank you, Your Honor. You have before you my client’s affidavit that the
door was locked, she checked it twice. We submitted Dr. Collins’s deposition
testimony that he inserted his key in the lock and turned it. The point is, we
don’t know how or why Dr. Collins was able to open the door—the evidence
is conflicting. Certainly, defendant’s expert’s affidavit that the key the police
have doesn’t fit the lock is evidence. But my client’s testimony and Dr. Collins’s
testimony are also evidence. And I would just take issue with Ms. Stoddard’s
statement about the key being in police custody the entire time—it was only
in police custody after the police arrived. Before that, anyone could have had
access to it. Whether the hotel gave Dr. Collins a key that fit my client’s door
is a genuine issue of fact, and it should be left for the jury to decide after hear-
ing all of the evidence.”
“Thank you, counsel. It will be ordered taking defendant’s motion for
summary judgment under advisement. Clerk, call the next case please.”
OTHER TACTICAL MOTIONS

A few other common motion-filing situations occur with sufficient regularity
to deserve mention. Perhaps chief among these is the amendment of plead-
ings. Parties rarely know everything there is to know about their cases at the
time suit is filed—that is why we have discovery. Lawyers also make mis-
takes. Suppose Allen Porter learns during discovery that Banbury Park Hotel,
though owned by Park Hotels Group, Inc., is actually operated and managed
by another company, Park Management, Inc. The complaint should have
named Park Management as a defendant. Or suppose he realizes, after re-
ceiving a motion to dismiss, that he has inadvertently forgotten to include in
the complaint some fact that is essential to his cause of action. What can he
do? He can file a motion for leave to amend the complaint, attaching a new
complaint, rewritten as desired. In general, courts are liberal in allowing
amendments to pleadings. Naturally, there are some limits; you should not
count on being allowed to make some amendment that completely changes
Putting It the nature of the case a week before the trial, for example. But in general, the
Into Practice: rule is “no harm, no foul”; as long as an amendment does not unfairly hinder
As a strategic matter, why another party’s trial preparation, it will usually be allowed; see FRCP, Rule 15.
is a motion to dismiss You will occasionally be called on to answer a complaint that is so poorly
often better than a drafted that you cannot tell for sure what the suit is about. One option is to file
motion for a more a motion for a more definitive statement, asking the judge to order the plain-
definitive statement? tiff to be more specific. (As a strategic matter, a motion to dismiss is often a
better choice. After all, why educate your opponent about the problems with
her case if you can get the case dismissed instead?) See FRCP, Rule 12(e).
Your Local Notes

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DISCOVERY MOTIONS
The area of motion practice that consumes by far the greatest amount of
lawyer and paralegal time—and the area disliked by most judges—is discov-
ery. Discovery is an adversarial process. No party wants to turn loose evi-
dence that will help an opponent’s case. Disputes arise constantly and must
be refereed by the court. Discovery disputes are tedious and time consuming
because the judge has to understand the factual details of the case in order to
decide what information has to be disclosed.
Discovery responses are rarely complete the first time they are submitted.
The first task of the lawyer seeking the discovery—a task often delegated to
paralegals—is to analyze the response to determine what is missing. This is of-
ten far from easy, because considerable guesswork may be entailed in figuring
out exactly what records should exist and what information the opposing
party should have available.
In practice, incomplete discovery responses are, if not the norm, at least
commonplace. They are generally followed by a series of demand letters and
phone calls by the party asking for the discovery, the purpose of which is to
create a written record showing that every possible effort has been made to
obtain the requested information without bothering the judge. In many courts,
the rules make such a showing mandatory—the court will not even hear a mo-
tion to compel discovery unless the moving attorney certifies he has person-
ally conferred with opposing counsel and tried to resolve the dispute.
Motions to Compel Discovery—The next step is for the propounding party

to file a motion to compel discovery. This is a formal motion asking the judge
to order the responding party to produce the information that has been re-
quested. It is up to the moving party to convince the judge that the informa-
Putting It tion or documents sought have been properly requested using the correct dis-
Into Practice: covery procedure, that the other party’s response is deficient, and that the
Why are so-called moving party is entitled to the disclosure being asked for. The responding
“obstructionist” tactics party may defend the motion by attempting to persuade the judge that the in-
tolerated in the American formation asked for is privileged, or they may be able to find case law sup-
legal system? porting an argument that the particular requests are improper for some rea-
son. Or, and unfortunately all too often, the responding party may defend
simply by throwing a lot of dust in the air—peppering the argument with large
volumes of complicated and extraneous factual issues in the hope that the
judge, who has little time to devote to each motion, will be unable to reach a
clear understanding of what has really happened; see FRCP, Rule 37.
Your Local Notes

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If the judge concludes that the responding party has failed to provide dis-
closure as required by the rules, the court will order the responding party to
turn over the information and will usually set a deadline. The judge also has
the power to order the responding party to pay the fees charged by the mov-
ing party’s attorney for preparing and arguing the motion to compel. As a prac-
tical matter, however, most judges rarely assess fees in discovery motions, ex-
cept in the most egregious cases of deliberate disobedience.
“Allen, do you remember the request for production of documents that we
served on Park Hotels Group? We just got the response; do you want to look
at it?”
Allen Porter’s lack of enthusiasm was apparent as he eyed the four-inch
sheaf of photocopies in Chuck Fletcher’s hand. “Why don’t you just give me
a quick rundown.”
Chuck dropped the pile of documents on Porter’s table and sank into a
nearby chair. “This is the one where we asked for all those records from the
hotel. Maintenance records on the fourth floor locks—they’ve given us that,
along with all the other maintenance records for the whole place for the last
six months, which is most of this stack. I haven’t waded through all of it, but
so far I haven’t found any record of the locks being changed on 407 or 409.
Of course, there’s no way to know if any records are missing, either. Regis-
tration cards for all the fourth floor guests that night—remember, we wanted
to see if we could find any witnesses—they’re still stonewalling on that one,
‘objected to as irrelevant and violating the right of hotel guests to privacy.’
Ditto on the incoming phone call printout for that night. Trevayne’s person-
nel file, objected to as confidential.”
Porter shook his head resignedly. “In other words, still nada. Didn’t we
get danced around on this one once already?”
“Yeah, their first response said they were still looking for the records. You
sent them a demand letter.”
“Okay. Well, why don’t you draft another letter, pointing out that there’s
no legal basis for those objections, and demanding a full response within
fourteen days. ‘Right of hotel guests to privacy’ doesn’t come under any priv-
ilege I ever heard of.”
“Sure, if that’s what you want to do, but, can I ask, why don’t you just
move to compel?”
“The federal court rules say that before I can move to compel I have to
personally confer with opposing counsel and make a good faith effort to ob-
tain voluntary compliance, and I have to certify in the motion that I’ve done
it. And as a practical matter, these motions are easier to win if you can attach
a series of correspondence to the motion showing that you really tried to work
with the other side to get what you need. We’ll wait the fourteen days, then I’ll
call up Gail Stoddard and let her tell me for the third time why she thinks she
doesn’t have to give me this stuff, and then we’ll file the motion to compel.
Then the judge will give her a deadline and tell her to file a complete response,
and when she files it, it still won’t be complete, and we’ll do it all again. But if
we’re persistent, sooner or later we’ll get what we need. Then you can start
contacting some of the other guests and see if anyone saw anything.”
“What do I put in the letter about why the phone printout is relevant?”
Porter thought for a moment. “Say that it’s to confirm the exact time of
the desk clerk’s 911 call.”
Motions for Protective Orders—When you receive a discovery request
from an opposing party, one of your first tasks should be to peruse it carefully
to determine if each of the items requested is properly discoverable. (We will
show you how to do this in Workshop 11). You will find that most discovery
requests contain at least a few items that exceed the requesting party’s right
to inquire.
There are several ways to deal with these “overreaching” requests. If the
requested information is not damaging to your case, you may choose to turn
it over, even though you are not required to—that may entail less work than
getting into a motion battle over it. Another option is to object: In the written
response, you state your objection and the grounds for it in lieu of giving an
answer. Then it is up to the requesting party to move to compel and to attempt
to convince the judge that the objection is without merit.
In some instances, however, you may wish to seize the initiative yourself
and get an immediate ruling. This is done via a motion for protective order. A
motion for protective order asks the judge to rule that your opponent’s dis-
covery request is improper, and that you need not comply with it.
Motions for protective orders are rarely used in the case of written dis-
covery. It is much easier to note your objection in the response than to file,
brief, and argue a motion. When the dispute involves a deposition, however—
particularly if the deposition would have to be taken in another state, at great
cost in terms of time and travel—a protective order should be sought. Simi-
larly, if your opponent is attempting to obtain information by subpoena from
someone who is not a party to the suit, a motion for protective order may be
the only possible remedy. If, for example, privileged medical information is be-
ing subpoenaed from your client’s doctor, merely objecting will not prevent
the doctor from turning over the information; see FRCP, Rule 26(c).
Your Local Notes

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Motions for Sanctions—Suppose the court hears a motion to compel, or-

ders the responding party to turn over information, and the responding
party offers up still another evasive or incomplete answer. What then? Does
the lawsuit turn into an endless series of motions to compel, ending only
when one party runs out of money or patience and gives up? No, as you
would expect, the sanctions become stronger the second time the judge has
to get involved in the same discovery dispute. On a motion for sanctions—
a motion seeking to punish a party who continues to stonewall even after a
motion to compel has been made and granted and the court has ordered the
party to disclose—the judge has several options. (Please notice that these
stronger sanctions are available only where there has already been one mo-
tion to compel made, granted, and disobeyed relating to the same subject
matter. A motion for sanctions is not an appropriate procedure to use on the

“first offense.”) See FRCP, Rule 37(b).
If the moving party was seeking the information in question for the pur- Putting It
pose of trying to prove some particular fact, the judge may simply declare that Into Practice:
fact as established. In our hypo, for example, suppose that the hotel refused Suppose Gail Stoddard
to turn over the maintenance records on the door locks, even after being or- inundates Allen Porter
dered to by the judge. Shannon’s attorney wants the maintenance records in with hundreds of totally
order to see whether the locks may have been changed—for all he knows, per- irrelevant interrogatories.
haps the Room 409 key did fit the Room 407 lock at the time Dr. Collins entered How should he respond?
Shannon’s room. If the hotel refuses to produce the maintenance records even Would it be appropriate
after being ordered to, the court might simply declare as a fact that the hotel for him to move for
gave Dr. Collins a key that fit Shannon’s room. At trial, the judge would then so sanctions? Does your
instruct the jury, and the hotel would be prohibited from offering evidence to state require any
the contrary. Obviously, such a finding would blow a serious hole in the hotel’s prerequisites prior to filing
defense. a motion for sanctions?
If the information sought has to do with evidence that favors the disobe-
dient party, the sanction may be an order prohibiting the use of that evidence.
In extreme cases, the court can even enter judgment against the disobedient
party, at which point that party loses the entire lawsuit, then and there.
If these sanctions seem harsh, keep in mind that they can always be
avoided simply by obeying the court’s orders. The system cannot work if par-
ties are free to ignore court orders with which they do not agree, so judges
tend to come down hard on people who willfully defy them.
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
SCHEDULING ORDERS
AND DEADLINES
Who decides what motions need to be filed, what discovery needs to be taken,
and when these tasks will be done? For many years the answer was clear: The
initiative lay with the attorneys for each party. The result was somewhat of a
free-for-all, with each side filing motions, noticing depositions, and sending
out discovery requests more or less whenever the urge struck.
The traditional approach was not without its drawbacks. Cases tended
to drag on and on—attorneys can always think of one more motion to file or
one more deposition to take. Discovery tended to multiply, at enormous
cost to the parties. Judges wasted valuable time hearing motions for con-
tinuances when scheduled trial dates arrived and cases were not ready to
be tried.
In the search for greater efficiency, more and more courts have begun tak-
ing an active part in scheduling the tasks necessary to prepare a case for trial.
Many courts now require the attorneys to appear before the judge for a sched-
uling conference shortly after the pleadings are complete. After discussing
the case with the attorneys, the judge issues a scheduling order, specifying, at
least in a general way, what motions will be filed, what discovery will be taken,
and setting firm deadlines for the completion of each task.
Increasingly, courts are enforcing such deadlines. If the scheduling order

says that all motions for summary judgment are to be filed by May 15, a mo-
Putting It tion filed on May 16 is apt to be summarily rejected. Some judges also sched-
Into Practice: ule status conferences every few months as the case progresses. The attor-
What is a possible neys must appear in court and inform the judge of their progress, and the
downside of increased judge has a chance to ferret out any nascent disagreement and resolve it,
judicial management thereby nipping a future motion in the bud. The experience so far with this
of cases? kind of active case management by the judges has been generally positive in
the sense that cases get to trial faster and with less wasted motion; see FRCP,
Rule 16.
THE ALL-PURPOSE MOTION: MOTION

FOR A PRETRIAL CONFERENCE
The motions we have described thus far in this chapter—motions to dismiss,
motions for summary judgment, motions to compel—these are the work-
horses of litigation and you will see them in nearly every lawsuit. In using
these procedures, you are travelling on the well-trodden main highways of
motion practice; the rules are clear, and there will be little need for proce-
dural inventiveness.
Occasionally, however, you will find yourself needing the judge to inter-
vene in some situation that does not fit any of the familiar pigeonholes. Per-
haps the parties cannot agree on a schedule for depositions and other dis-
covery, or on deadlines for various motions. Perhaps the case involves a huge
volume of documents, to which both sides need access—you need the judge
to order the creation of a central document depository. Perhaps the battle of
expert witnesses is getting out of control, with each side trying to gain the up-
per hand by hiring “one more” expert—you need an order placing some lim-
its. Or perhaps the case has simply mired itself in a procedural swamp—
progress toward trial is at a standstill and you have no way to get it off dead
center without some cooperation from your opponent.
There are no specific rules of procedure covering these situations—is
there a remedy? Yes! The court has the power to hold a pretrial conference at
any time, at the request of either party or even on the judge’s own initiative.
The attorneys appear before the judge, in much the same way as hearings on
motions are conducted. At a pretrial conference, the judge has the power to
make any ruling that will “facilitate the just, speedy, and inexpensive disposi-
tion of the action.” See FRCP, Rule 16.

Though procedurally routine, motions to dismiss and motions for summary
judgment usually must be supported by memoranda arguing potentially
complex substantive law issues. Preparing such memoranda can be a job for
Putting It very experienced paralegals who have well-developed research and writing
Into Practice: skills, but, in most firms, such assignments are more likely to go to associate
Why is the ability to attorneys.
prepare accurate, concise Discovery motions, however, are a rich source of work for paralegals. Mo-
deposition summaries an tions to compel are a natural outgrowth of the task of digesting and analyzing
important skill for discovery responses, and the additional work required—summarizing the de-
paralegals? fects in the responses and corresponding with opposing counsel to create a
record of your efforts to obtain compliance—is well suited for the skills you
are learning in your paralegal training.
ETHICAL ETIQUETTE
P rivileged information is protected
from discovery. Therefore, it is
vitally important that you do every-
innocent conversations may be
overheard or inadvertently repeated
to others. Some firms develop
thing possible to preserve the sophisticated means of protecting
attorney–client privilege and thereby client identity and limiting access to
avoid challenges that particular confidential information, but if legal
communications are discoverable assistants do not honor the code of
because they were not intended to be silence in their everyday
confidential. Care should be taken to conversations, these elaborate
reserve client communications to protective mechanisms are for naught.
those rooms that ensure privacy; If you become involved in the
avoid conversing in open areas such discovery process, you will be
as hallways and elevators. Calls responsible for purging confidential
should not be taken from clients in the information from documents and other
presence of other clients or individ- materials before they are disclosed as
uals outside the firm. When visitors well as flagging documents that may be
are in your room make sure that confi- protected by a privilege. To handle
dential information is not visible on such tasks responsibly, you must have
your computer screen or that files are a clear understanding of the
not lying open on your desk. Conver- parameters of the attorney–client and
sations over speakerphones and work-product privileges. (The work-
intercoms should be limited to product privilege protects trial
nonconfidential matters. preparation materials, including
The most common—and attorneys’ mental impressions, and
potentially most damaging—breach of legal opinions.) Far from being
confidentiality occurs in casual academic issues, privileges are integral
conversations with friends, family, and to the discovery process and you
coworkers. Not only is the client’s would do well to explore these
trust betrayed but these apparently concepts in some depth.
PRACTICE POINTERS
Central Index
A central index is the master index of all indexes. This index lists every file
and identifies its contents. Of course, the more comprehensive this file is, the
more useful it will be when you are called on to locate a document. This sim-
ple organizational tool should allow you to put your fingers on any document
within seconds.
This index should contain the following general categories:
■ Notes and correspondence
■ Pleadings
■ Discovery
■ Client documents
■ Opposition documents
■ Witness files
■ Trial exhibits
continued
PRACTICE POINTERS
Central Index continued
Because the document files are usually the most extensive and the most fre-
quently worked with, you would be well advised to further subdivide client
documents into originals and documents produced to opposition, and to sub-
divide opposition documents into those produced from investigation, those
produced in response to a discovery request, and a working set.
Assign each category of items a separate number; notes and correspon-
dence can begin with 100, pleadings with 200, discovery with 300, and so on.
As each new accordion file is added, increase the file number by one. So if
three accordion files are created for discovery, the first one will be numbered
300, the second one 301, and the third one 302. Then color code all file labels
according to category so that pleadings, discovery, and client documents, for
example, all have different colored labels.
TECHNO TIP
If you have a friend in the legal business work. Once that is accomplished, the
in a different city or state you can still document can be scanned into your
share files efficiently (assuming, of computer and the graphic file that re-
course, your supervisor and theirs give sults from the scanning can be run
permission). You do not need to send through your OCR (optical character
paper copies or floppy disks. Instead, recognition) program to convert the
use your e-mail and include the desired graphics file (a digital picture of the
file as an attachment. It is instantaneous document scanned) into text file that
and cheap. If you find a useful pleading can be utilized in your word processor.
in your review of court files of similar OCR programs, operating with today’s
cases, make a copy of it. While the au- high-speed processors and lots of com-
thors have never seen a court filing with puter memory, are surprisingly fast and
a copyright notice on it, professional accurate. Most such programs are also
courtesy requires you to contact the au- capable of “learning” the vocabulary
thor and ask permission to utilize the and format of legal documents.
S U M M A RY
Motions are formal requests for a judge to enter an order or make a ruling.
Practically speaking, all communications with judges are through motions.
Written motions are accompanied by a memorandum of points and authorities
explaining why the judge should do what the moving party is requesting. Mo-
tions must be filed with the court clerk and copies must be served on all par-
ties. The opposing parties are then given a time period to file a response ex-
plaining why the judge should not do what the moving party is requesting.
Failure to file a response in a timely fashion may result in the motion being
granted. After a response is filed, the moving party is then allowed to file a re-
ply, which rebuts the arguments made in the response.
Some motions are resolved after a hearing at which oral arguments are
held either in the courtroom or in the judge’s chambers. Because oral argu-
ments are not always permitted, memoranda should always be written as if

they will be the only arguments the judge will receive. Most motions are taken
under advisement and are formally communicated via minute entries. A judge
has the option of dismissing some claims, granting judgment on others, and al-
lowing others to be heard at trial.
A motion to dismiss will be granted when a claim is defective as a matter
of law. Motions to dismiss can be based on failure to state a claim, lack of ju-
risdiction, and other reasons set forth in FRCP Rule 12(b). To eliminate an in-
sufficient defense, a motion to strike must be filed. If a judge decides that no
“genuine issue of material fact” exists, she will grant a motion for summary
judgment. To defend against such a motion the opposing party must persuade
the judge that a factual dispute exists. A grant of a partial motion for summary
judgment allows some issues to be heard at trial while disposing of others. If
a party fails to include a fact or party in a complaint, he can file a motion for
leave to amend the complaint. On the other hand, if a party cannot answer a
complaint because it is so poorly drafted, he has the option of moving for a
more definitive statement, which asks the plaintiff to be more specific.
Discovery motions are the most tedious and time-consuming motions with
which judges deal. Motions to compel discovery are commonplace and typi-
cally follow a series of demand letters and phone calls requesting discovery.
These motions must show that the information was properly requested, that
the party is entitled to this information, and that the opposing party’s re-
sponse was deficient. If the judge concludes that the responding party failed
to conform to the disclosure rules, she may order that party to turn over the
information, set a deadline, and/or order the responding party to pay the mov-
ing party’s fees. If the responding party still fails to comply, the party request-
ing discovery can file a motion for sanctions. Such sanctions may involve ei-
ther declaring the questioned fact as established or prohibiting evidence from
being used or even entering judgment against the disobedient party. If a dis-
covery request is overreaching, a party may choose to comply anyway, object
in writing, or file a motion for a protective order. A motion for a pretrial con-
ference is appropriate when no other procedural option seems to apply. By
virtue of this motion a judge can order anything that will “facilitate the just,
speedy, and inexpensive disposition” of the case.
To promote greater efficiency and reduce the expense of discovery, judges
have begun to take a more active role in scheduling discovery tasks. Some re-
quire attorneys to attend a scheduling conference once the pleadings are com-
pleted, while others schedule periodic status conferences.
Legal assistants can help in the preparation of motions to compel and other
discovery motions by carefully digesting and analyzing discovery responses.
KEY TERMS
As a matter of law Motion for a pretrial Oral argument

Chambers conference Order
Dismiss Motion for leave to amend Response
Failure to state a claim Motion for protective order Scheduling conference
Hearing Motion for sanctions Status conference
Memorandum of points and Motion for summary judgment Under advisement (under
authorities Motion papers submission)
Minute entry Motion to compel discovery
Motion for a more definitive Motion to dismiss
statement Motion to strike
Workshop Alert
Workshop 14 How to Present a Motion
Workshop 16 Motions for Summary Judgment, Motions to Dismiss, and other Tactical Motions
REVIEW QUESTIONS
1. What purpose does a memorandum of points d. Under what circumstances might a judge
and authorities serve and where is such a mem- grant a partial motion for summary judg-
orandum found? ment?
2. Is it appropriate for an attorney to invent a mo- 10. How can an attorney rectify an error in a com-
tion if none of the standard motions accommo- plaint?
dates his needs?
11. Why is filing a motion for a more definitive
3. What is contained in a response to a motion? In statement not generally advised strategically?
a reply?
12. What options are available to a party who has
4. What transpires at a hearing on a motion? received incomplete discovery responses?
a. Why is it important to write a memorandum a. What responses are available to the re-
as if it will be the only argument seen by the sponding party?
judge? b. What are the potential consequences to a
b. What does it mean if a judge says she is tak- party that is found to be out of compliance
ing a matter under advisement? In those cir- with the discovery rules?
cumstances how does the judge convey her 13. How can a party deal with overreaching discov-
decision to the parties? ery requests? When is a motion for a protective
5. How does a claim relate to a cause of action? order appropriate?
6. How does a judge weed out nonmeritorious 14. What is a motion for sanctions and when is it ap-
claims? propriate? What sanctions are available to a
a. When dealing with a motion to dismiss does court when it grants such a motion?
a judge consider any evidentiary issues or 15. Why do courts today tend to take a more active
whether any proof exists to support the role in scheduling the activities that precede
claim? trial?
b. When is a claim considered defective as a
matter of law? 16. What can a party do if the discovery process
bogs down but no specific procedural rule cov-
7. On what basis does a defendant win a motion to
ers the situation? On what grounds can a pre-
dismiss for failure to state a claim?
trial conference be held?
8. Can a plaintiff move to dismiss a defense? How
17. What types of motion are paralegals generally
is an insufficient defense eliminated?
well suited to prepare?
9. What is the purpose of a motion for summary
18. Use the following groups of words in one sen-
judgment?
tence:
a. Under what circumstances is such a motion
a. Motion for summary judgment; claims; mem-
granted?
orandum of points and authorities; oral ar-
b. What type of evidence does a judge evaluate
gument
when considering a motion for summary
b. Motion to dismiss; minute entry; chambers;
judgment?
under advisement
c. What is the goal of the party defending a mo-
tion for summary judgment?
PRACTICE EXAM
1. Motions are c. consume a great deal of legal assistants’

a. always resolved at a hearing. time.
b. decided by judges who communicate their d. all of the above.
decisions via minute entries. 6. If a judge determines that a responding party
c. usually decided by judges immediately after has failed to conform to the disclosure rules, he
oral arguments. may
d. always resolved informally in the judge’s
a. order the responding party to turn over the
chambers.
information.
2. In considering a motion to dismiss a judge must b. not set a deadline by which the information
a. dismiss some claims and grant judgment on must be provided.
others. c. may not assess fees.
b. consider the evidence. d. all of the above.
c. consider whether there is any proof to sup- 7. If a party receives an overreaching discovery re-
port a claim. quest, the party may
d. decide whether the plaintiff will win if he a. choose to comply.
proves every allegation in the complaint. b. file a motion for protective order.
3. Motions to dismiss can be based on c. object in writing.
a. failure to state a claim. d. all of the above.
b. lack of jurisdiction. 8. Under the traditional approach to discovery
c. lack of sufficient evidence.
a. cases tended to be resolved relatively
d. a and b.
quickly.
4. A motion for summary judgment b. parties usually encumbered great expenses.
a. will be granted if no genuine issue of mate- c. cases were usually ready to go to trial when
rial fact exists. the time came.
b. should be accompanied by documentary ev- d. none of the above.
idence, witness affidavits, deposition tran- 9. In the contemporary approach to discovery
scripts, and interrogatories. a. cases usually get to trial faster than under
c. will be denied if a factual dispute exists. the traditional approach.
d. all of the above. b. judges sometimes schedule status confer-
5. Discovery motions ences.
a. are generally the easiest motions for judges c. greater expense is entailed than under the
to deal with. traditional approach.
b. rarely involve motions to compel. d. a and b.
FILL IN THE BLANKS

10. Written motions are accompanied by a written _______________ ; but if he decides that some
legal argument called a _______________ . factual issues exist but wants to dispose of other
11. Within a specified period of time the opposing claims he may grant a _______________ .
party to a motion must file a written 19. If a plaintiff forgets to include an essential fact
_______________ ; subsequently the moving party in his complaint, he may file a motion
can then file a written _______________ . _______________ the complaint.
12. Motions, responses, and replies are referred to 20. If a defendant finds it difficult to prepare an
as _______________ . answer because a complaint is so poorly drafted,
13. _______________ can either be organized (with she may file a motion _______________ ; for
the moving attorney speaking first, then the strategic purposes, however, she may be better
opposing attorney, followed by the moving advised to file a motion _______________ .
attorney again) or they can be free flowing. 21. A motion _______________ may be necessary if
14. Judges often take motions _______________ , the opposing party provides incomplete responses
thereby giving themselves time to reflect on the to discovery requests.
arguments made. 22. If your opponent attempts to obtain privileged
15. A judge communicates her resolution of a information from your client’s doctor, you should
motion via a _______________ . file a motion _______________ .
16. A judge must dismiss a claim that is defective 23. If you prevail on a motion to compel discovery
as a _______________ . and your opponent continues to stonewall, you
17. To eliminate a defense that is defective as a should file a motion _______________ .
matter of law, the opposing party should file a 24. If a case becomes mired in one procedural
_______________ . dispute after another, effectively keeping the case
18. If a judge decides that no genuine issue of at a standstill, a party has the option of filing a
material fact exists, he may grant a motion for motion _______________ .
TRUE OR FALSE
25. Attorneys are prohibited from contacting a thereby eliminating the time and expense of a
judge without knowledge of opposing counsel. trial. T F
T F
40. To prevail against a motion for summary judg-
26. Written motions are not considered court pa- ment, a party must produce evidence that a fac-
pers. T F tual dispute exists because factual disputes
must be resolved by a jury. T F
27. Virtually all communication attorneys have
with judges is via motions. T F 41. Discovery responses are rarely complete the
first time they are submitted. T F
28. Motions must be filed with the court clerk, who
then sends copies to the parties. T F 42. Some courts will not hear a motion to compel
discovery unless the moving attorney certifies
29. Only the courts determine the time period dur-
that he has tried to resolve the dispute and has
ing which a response must be filed. T F
personally conferred with opposing counsel.
30. Failure to respond in a timely fashion to a mo- T F
tion may result in the judge summarily granting 43. Judges commonly assess fees in discovery mo-
the motion. T F tions where they have concluded that the re-
31. Oral arguments are always held in the court- sponding party failed to follow the disclosure
room. T F rules. T F
32. Oral arguments are always highly structured af- 44. Motions for protective order are commonly
fairs. T F used by attorneys in reference to written dis-
covery. T F
33. Because motions are not always scheduled for
hearings, memoranda should be written with 45. A motion for sanctions is the appropriate re-
the assumption the judge will never receive any course when a party fails to respond to a re-
additional arguments. T F quest for discovery. T F
34. Judges are required to render decisions on mo- 46. A judge can prohibit the use of evidence that fa-
tions immediately but then must follow their ver- vors a party if that party fails to comply with an
bal pronouncement with a formal minute entry. order to produce that evidence to the moving
T F party. T F
35. A judge has the option of dismissing one claim 47. Today courts are rarely involved in scheduling
in a case and allowing the other claims to stand. the tasks necessary to be completed before
T F trial. T F
36. Motions to dismiss can be based on only one 48. Today parties are often required to attend a
situation: failure to state a claim. T F scheduling conference shortly after pleadings
have been completed. T F
37. A plaintiff can move to dismiss a defense that is
defective as a matter of law. T F 49. At a pretrial conference a judge has the power
to render any decision that will facilitate a
38. The strength of a party’s case is not taken into speedy and inexpensive disposition of the case.
consideration when deciding a motion for sum- T F
mary judgment. T F
50. Helping prepare discovery motions is a task
39. Granting a motion for summary judgment sim- well suited for legal assistants. T F
ply allows a case to be decided summarily,
LITIGATION LINGO
1 5
11
8 15
2 4
14 13
1 9 17
6 9
2 3
13
5 7
12 10 12
16
10
11
CROSSWORD PUZZLE (This crossword puzzle reviews terminology from both Chapters 4 and 5.)
DOWN
1. To submit interrogatories to another to answer
2. When a party errs in drafting a complaint they can move for leave to __________ .
3. An all-purpose motion that can be used when no other procedural mechanism applies is a motion for a
__________ conference.
4. A conference some judges require attorneys to appear at after completing their pleadings
5. A judge communicates her decision via a [13 ACROSS] __________ .
6. The “teeth” in the discovery rules
7. Abbreviation for the federal rules
8. A court paper giving all the reasons why the court should not do what the moving party is requesting
9. The type of judgment that can be requested when there is no “genuine issue of material fact”
10. Mandatory __________ rules require parties to turn over evidence without being requested to do so
11. When a judge does not want to render an immediate decision she takes the matter under __________ .
12. A “chunk” of a lawsuit
13. Issues that are not disposed of via a partial summary judgment remain to be resolved at __________ .
ACROSS
1. An alternative to a motion to dismiss when dealing a poorly drafted complaint is a motion for a more
__________ statement.
2. The type of motion that a party can use against a recalcitrant party that refuses to respond to discovery
requests
3. What a court reporter prepares at a deposition
4. A type of motion that serves as a remedy to an insufficient defense
5. To allow evidence into the record
6. A failure to state a claim is an example of this type of motion
8. A court paper rebutting the arguments made in the response
9. A party that feels the opposing party is being unreasonable in its discovery requests can file a motion
for a protective __________
10. “Bring with you”
11. Someone who has special scientific or technical knowledge
12. This request is used during discovery to obtain documents from the opposition
13. A judge communicates her decision via a __________ [ 5 DOWN].
14. A memorandum of __________ and authorities must accompany a motion.
15. To require a witness to answer questions at a specific time and place
16. Formal request for a court to do something
17. What is ordered when a party’s medical condition is at issue
the question.
1. Suppose the drunk driver that hit your car b. Suppose you discover that the karate school
raises the defense of immunity, claiming that he is part of a franchise. What would you have
is immune from suit because he is a police offi- to do to amend the complaint to include the
cer. How could you eliminate his defense if un- corporate franchisor as a defendant?
der the laws of your state he could not claim 4. Suppose you sue your contractor for the prob-
immunity if he committed a tort that fell outside lems you are now experiencing with your new
the scope of his duties as a police officer? How home. You decide that no issue exists in refer-
long will he have to respond to your motion? ence to the contractor’s negligence and that
2. Suppose you decide to send interrogatories to only the issue of damages should have to be de-
the tenant who has stopped paying rent and he cided by a jury. What kind of motion will you
responds “I don’t know” to all the interrogato- have to file and what will you have to show?
ries. What can you do? Will you be entitled to make an oral argument?
Suppose the tenant files a counterclaim Suppose you and the defendant contractor
against you but it is so poorly written that have just completed your pleadings and are al-
you’re not sure how to respond. What are two ready experiencing conflict in reference to set-
possible motions you could file in response? Is ting up a deposition schedule. Will the court in
there a time limit during which you must file your jurisdiction be of any help to you in re-
these motions? solving this conflict? If not, is there any kind of
motion you could file that would address such
3. Suppose the attorney for the karate instructor a conflict?
that hit you sends you a notice for an IME.
a. What might be the consequences if you fail
to show up for the IME and refuse stead-
fastly to be examined?
1. Describe the circumstances under which you 2. What types of discovery do you envision occur-
might find it appropriate ring in each of the following cases? Who would
a. to file a motion for summary judgment in the you depose? What types of discovery do you
drunk driver case. anticipate the defense will use?
b. to file a motion to dismiss against the tenant a. Drunk driver sideswipes your car.
who stops paying rent. b. Tenant stops paying rent and refuses to
c. to file a motion to compel against your move out.
cousin, who refuses to pay you a percentage c. Cousin refuses to pay you a percentage of
of his business, for copies of his financial his business.
records. d. Karate instructor breaks your nose.
d. to file a motion for a protective order against e. Contractor does shoddy work on house.
the karate instructor who broke your nose.
e. to file a motion for sanctions against the con-
tractor who did shoddy work on your house.
CHAPTER
6
ALTERNATIVE
DISPUTE
RESOLUTION
OBJECTIVES
■ To distinguish among the various

types of ADR
■ How to determine the most appropriate

form of ADR to use
■ The advantages and disadvantages of

using ADR
■ What roles paralegals play in the ADR

process
116 CHAPTER 6 Alternative Dispute Resolution
hypothetical
“
S hannon, now that you have decided you do not want to accept their set-
tlement offer, we will have to go to trial. Litigation is a lengthy and tiring
process and you should know up front that you may not get what you want
when all is said and done. Are you sure you want to take this case to trial?”
“I’m not sure about anything at this point,” lamented Shannon. “Is this re-
ally an either/or decision? Aren’t there any other alternatives?”
“Of course, there are always alternatives,” responded Allen Porter. “You
could consider submitting your claim for arbitration or mediation or to a com-
bination of these two approaches called med-arb. We could also agree to a
summary jury trial or . . . . ”
“OK, OK, I get the point. I wanted alternatives but now you’re overwhelm-
ing me. Tell me a little about each of these approaches. Which one do you think
would give the best results?”
“If you choose to go the arbitration route we would have a hearing before
one or more impartial third parties who would listen to the evidence and ren-
der a decision. If all of us agreed to binding arbitration, we could not appeal
the decision but if we agreed to arbitrate only if it were nonbinding, we could
still appeal the decision.”
Shannon interrupted, “Arbitration sounds an awful lot like going to trial.
What’s the advantage?”
“Although arbitration is similar to a trial, the formal rules of evidence are
not followed,” pointed out Allen. “Also the process tends to go much faster
and is much cheaper than a trial.”
“If you would rather negotiate directly with the defendants, then you
should choose mediation,” Allen continued. “A mediator would help you ne-
gotiate a settlement but would have no authority to render a decision.”
“How does a mediator help with the negotiation? I mean, if I wanted to
negotiate a settlement couldn’t I do it on my own?”
“Well, you certainly could try but a mediator makes sure the dispute
doesn’t get worse and that goodwill is preserved among all the disputants.
The emphasis of mediation is on compromise rather than winning and so
the mediator attempts to find a solution that is acceptable to all concerned.”
“So what happens when arbitration and mediation are combined?”
asked Shannon.
“If you opted to try med-arb you would first have your claim mediated by
a neutral third party. Then if the mediation failed to create resolution, you
would have the same neutral third party arbitrate your case,” explained
Allen.
“Doesn’t sound like that third party is too neutral to me. What if this per-
son hears information during the mediation that would not be admissible dur-
ing the arbitration?” questioned Shannon.
“Good point,” responded Allen, “and that’s one of the problems with re-
sorting to med-arb. Of course, if you want to have the benefits of having neu-
tral third parties hear your case without the expense of a full-length trial, you
could consider having a summary jury trial.”
“Does this mean a jury would still hear the evidence?” asked Shannon.
“Yes,” replied Allen, “but they would hear a capsulized version of the ev-
idence from me rather than having you and other witnesses testify. Also, the
jury’s verdict would be advisory rather than binding.”
CHAPTER 6 Alternative Dispute Resolution 117
“What’s the point of going to all the trouble of presenting the evidence to
a jury if its verdict is not binding?” questioned Shannon, who was becoming
somewhat perplexed by all of these permutations of the trial process.
“Because someone from each side is present to observe the presentation
of the evidence and the jury’s deliberation process, the attorneys can get a
sense of how an actual jury would come out on the case. This reality check of-
ten prompts them to settle. There’s another process similar to a summary jury
trial called a mini-trial but I’m not sure this would be appropriate in your case.”
“That’s OK; I’ve heard enough. You’ve certainly given me something to
think about,” offered Shannon, feeling overwhelmed yet comforted in know-
ing that she had several options from which to choose. “Give me a few days
to reflect on this and I’ll get back to you.”
W H AT I S ADR?
Alternative dispute resolution (ADR) encompasses all those approaches to
dispute resolution that allow individuals their “day in court” but save them
some of the time, expense, and psychological trauma of going to trial. These
are the primary forms of ADR in use in the United States today:
■ Arbitration: hearing held before a neutral third party, also referred to as
a neutral, who renders a decision and issues an award.
■ Mediation: problem-solving process involving a neutral third party who
facilitates the parties in reaching a resolution but who has no authority
to render a decision.
■ Med-arb: a mediation conducted by a neutral third party followed by an
arbitration using the same neutral third party if the mediation fails to re-
solve the conflict.
■ Summary jury trial: an abbreviated trial in which the parties present ev-
idence in summary fashion to a jury, thereby allowing the attorneys to
receive an evaluation of their case.
■ Mini-trial: settlement process in which the parties present their case to
a neutral third party who issues an advisory opinion, which the parties
use to negotiate a settlement.
Although other variations of ADR exist, these are the most commonly used
forms in the United States as of 2000 and will serve to illustrate the nature and
scope of ADR. Let us explore each of these variations individually.
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H I S T O RY OF ADR
Although ADR is relatively new to mainstream America, it has been used for
years by various segments of our society who preferred to settle disputes
without litigation. The Puritans and Quakers, for example, used mediation and
arbitration, and resorted to the legal system only when absolutely necessary.
In the nineteenth century, Mormons, as well as Chinese and Jewish immi-
grants, developed their own community dispute resolution mechanisms.
In the 1970s some, including Chief Justice Warren Burger and consumer
advocate Ralph Nader, talked about a need for a less expensive and less for-
mal means of resolving disputes. ADR began to be seen as a possible solution
to clogged court calendars and general inaccessibility of the judicial system to
the poor and even middle-class individuals. By the mid-1980s, the ADR world
expanded to include mini-trials used to resolve large corporate disputes, pri-
vate judging, mediation in divorce proceedings, and mediation and arbitration
in medical malpractice disputes.
The message that ADR had been accepted in the federal system became
clear when Congress passed the Administrative Dispute Resolution Act of
1996 (ADRA). This bill encouraged the increased use of mediation and arbi-
tration. Like its predecessor passed in 1990, ADRA required each federal
agency to adopt an ADR policy, appoint an ADR specialist, develop an ADR
training program, and review existing agency agreements for possible incor-
poration of ADR clauses. ADRA also increased the federal government’s use of
ADR, eliminated an escape clause that deterred parties from entering into
binding arbitration, and prevented delays in the acquisition and hiring of
third-party neutrals. Signaling the future of ADR, the 1996 act broadened the
scope of its coverage to include a wider range of administrative disputes.
Several district courts have now made ADR mandatory. Not surprisingly,
local rules requiring ADR have been challenged on constitutional and statu-
tory grounds as well as on the grounds that they are inconsistent with various
provisions of the Federal Rules of Civil Procedure. Most courts, however, have
concluded that mandatory ADR procedures are valid. In one such case a local
rule required that certain cases involving damage claims for $50,000 or less
were to be automatically referred to nonbinding arbitration with the option for
a trial de novo (new trial) within 20 days after the entry of an award. The ap-
Putting It pellate court reasoned that this rule did not violate the constitutional right to
Into Practice: a jury trial because it created a statutory right coextensive with the Constitu-
Why might ADR be more tion. Also, the court determined the provision was not inconsistent with the
acceptable today than it Federal Rules of Civil Procedure because it found that ADR greatly enhanced
was 50 years ago? the efficiency of the court system. The court was pleased that ADR allowed lit-
igants to test their claims shortly after filing them and encouraged settlement
when arbitration revealed that no viable claim existed.
A R B I T R AT I O N
One of the first forms of ADR was originally embraced by the business com-
munity as a means of resolving labor disputes. Arbitration allows parties to
enjoy all the benefits of a trial without the inordinate expenditure of time and
money. Attorneys still play the role of advocate and a neutral third party still
serves as an arbiter. Arbitration’s primary advantage lies in its reduction, or in
some cases elimination, of the discovery process. Control of the discovery
process lies with the arbitrator (the neutral third party who hears the evi-
dence and renders a decision). Many arbitration statutes allow discovery only
as a “permissible” process.
Arbitration has been used longer than any other form of ADR in this coun-
try and continues to be one of the most popular forms of ADR. Arbitration can
be ordered by the court, sometimes one party can demand it, or the parties
can enter into it voluntarily. Many states have adopted statutes that compel
parties to arbitrate disputes before going to trial.
FORMS OF ARBITRATION
Arbitration can take a number of different forms. In some cases arbitration is
mandatory, which means that the parties must try arbitration before being
granted a conventional trial. The mandate to arbitrate can come from a statute,
a contractual agreement, a court rule, or a custom. Note that the parties cannot
usually be forced to settle their dispute under mandatory arbitration but can be
required to at least try. In other cases, arbitration is voluntary, which means it is
used by the parties by choice as a means of attempting to resolve their dispute.
Arbitration can also be either binding or nonbinding. Binding arbitration
is final and generally cannot be appealed. The courts rarely overturn binding
arbitration awards. Binding arbitration is usually found in the private sector
and is entered into by agreement or custom. Nonbinding arbitration is gener-
ally mandated by the courts and can be appealed.
Furthermore, arbitration can be private, which is based on a contractual
agreement, or court annexed, which takes place within the court system and
is governed by local rules. Private arbitration typically arises from a contract
clause that specifies that the parties must arbitrate any disputes. Real estate
agreements and labor union contracts often contain such clauses. Stockbro-
kers, lawyers, health care organizations, and automobile manufacturers com-
monly use arbitration clauses in their contracts. The parties choose an arbi-
trator or go through a private provider, such as the American Arbitration
Association, and must pay for the arbitrator’s services.
In accordance with court-annexed arbitration the parties are notified after
filing their pleadings that they must present their claim to an arbitrator. Often
the statutes allow the courts to refer matters to arbitration by their own mo-
tion or by motion of a party requesting it. Parties can, however, object to ar-
bitration by showing cause why it should not be attempted. The parties gen-
erally do not choose the arbitrators nor the rules of arbitration to be followed.
The award, however, is nonbinding and the parties generally do not have to
pay for the arbitrator’s services. If the parties are satisfied with the arbitra-
tor’s award, a judgment is entered, but if either party is dissatisfied, a trial
de novo is scheduled. Disincentives to appeal exist in the form of fees required
to appeal and potential liability for costs and attorney’s fees if the appellant
fails to improve his position at trial. Putting It
Arbitration can be any combination of the above. You can, for example, have Into Practice:
binding, voluntary, private arbitration or nonbinding, mandatory, court-annexed Under what
arbitration. A dispute involving a contract that contains an arbitration clause will circumstances should
go to private, binding arbitration. The procedure for this arbitration will be gov- Shannon’s claim be
erned by the contract. A matter involving a complaint filed in the courts that falls subject to mandatory
within a statute requiring arbitration (e.g., a federal statute requiring all civil arbitration?
claims involving a disputed amount less than $100,000 in monetary damages to
be arbitrated) is considered nonbinding, court-annexed arbitration.
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SELECTION OF ARBITRATORS
Under the rules of the American Arbitration Association arbitrators are selected
by having each side strike any unacceptable arbitrators from a list of eight
to twelve randomly selected names. These names come from a list of approved
SIDEBAR
American Arbitration Association (AAA)
The American Arbitration Association (AAA) is a private, nonprofit organi-
zation that provides rules for parties to follow in private arbitrations. It also
maintains a list of qualified arbitrators with knowledge in specific areas. Al-
though the AAA does nothing to render or enforce arbitration awards, it will as-
sist in the logistics of arbitration hearings by, among other things, providing
meeting places. The AAA’s primary office is in New York but it has regional of-
fices around the country.
In some cases, contracts will specify the use of AAA rules. In other cases, the
parties agree to modify the AAA rules to meet their own needs or they use rules
developed by some other organization. Another commonly used private organ-
ization that has established arbitration rules and procedures is the Center for
Public Resources (CPR).
arbitrators with expertise in various fields. Potential arbitrators who are friends
of either party or who are interested parties are ineligible. The AAA chooses an
arbitrator from the list of names that were not stricken by either side. The AAA
has the option of removing an arbitrator or filling a vacancy.
Parties who choose to find their own arbitrator rather than using the serv-
ices of organizations like the AAA or the National Academy of Arbitration
(NAA) can use private sources. Legal publications often have advertisements
for arbitrators; local bar associations are another good source for initiating
the process of securing an arbitrator. Most arbitrators are retired judges, pri-
vate attorneys, or citizens with expertise in a particular field.
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ARBITRATION PROCESS
Voluntary arbitrations are initiated when one of the parties files a motion to
refer to arbitration or a demand for arbitration. If the opposing party does
want to arbitrate, a jurisdictional battle may ensue. If, for example, a contract
clause provides for jurisdiction in advance, the opposing party may dispute
the interpretation of this clause. Or if a statute sets forth the grounds for ju-
risdiction, the dispute may revolve around the interpretation of this statute. In
other instances the court itself orders a case to be arbitrated. The statutes al-
lowing courts to do this give judges wide discretion and the presumption is in
favor of arbitration.
If an arbitration agreement exists or a demand to arbitrate has been filed,
the complaint is contained in the agreement or demand. The respondent is al-
lowed to file an answer. With court-annexed arbitrations the complaint, an-
swer, and other pleadings are usually on file with the court. Motion practice,
however, in both types of arbitration may be very limited. While access to dis-
covery tools is not a right under many statutes, arbitrators do have the au-
thority to permit discovery to the extent they deem it reasonable. Because of
the informality of the procedures, parties are not as well informed about their
opponent’s position as they are in litigation. Some complain that this amounts
to “playing blind man’s bluff” at the hearing. Because the discovery rules vary
so much, those engaging in arbitration must consult the arbitration statutes in
their jurisdiction before beginning the process.
The arbitrator initiates the hearing by swearing in the parties and witnesses
who will testify. The parties then give opening arguments and present both doc-
umentary and testimonial evidence. The attorneys are allowed to question wit-
nesses and the arbitrator may ask questions if necessary. Rebuttal questions are
also allowed. Although the rules of evidence are not followed, they may be used
as guidelines. At the end of questioning, the parties may either present closing
arguments or prepare post-hearing briefs. Some arbitrators may not allow both
or may require submissions of a brief when the hearing is over.
Arbitration hearings, unlike trials, are not open to the public. Everything
discussed in the context of the hearing is confidential and any matters dis-
closed often are not discoverable in future proceedings.
Arbitrators usually take the matter under advisement after the hearing. By
statute, agreement, or organizational rules, they are limited in the amount of
time they can consider the matter. Arbitrators are not required to commit the
reasons for their decisions in writing. An award that is binding on the parties
can be set aside only if the arbitrator engaged in misconduct, refused to hear
material testimony or admit material evidence, failed to decide the issues sub- Putting It
mitted for arbitration, or exceeded the limits of her authority. Courts review- Into Practice:
ing arbitration decisions may not retry the issues of the case but are instead Why might some
limited to deciding whether the award was valid. attorneys not like the
arbitration process? Why
Your Local Notes might it appeal to others?
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The paralegal’s role in arbitration is similar to that in litigation—preparing the
file, preparing witnesses, conducting research, and so on. If the efforts to ar-
bitrate in a court-annexed arbitration fail, the case will go to trial eventually.
Therefore, the paralegal must enter into preparations anticipating that a trial
is a possible outcome.
Some concerns unique to arbitration may confront the paralegal, includ-
ing the question of jurisdiction. (Is arbitration appropriate under the govern-
ing statute or contract clause?) The paralegal must also ensure that the par-
ties are following the most current rules governing the arbitration. Paralegals
are often responsible for drafting the demand for arbitration, the motion for
referral, and the responses to such demands and motions.
Assisting in the selection of arbitrators is another task that falls to parale-
gals. When appropriate they conduct background checks on potential arbitra-
tors and conflict checks to make sure no conflict of interest exists between any
member of the firm and potential arbitrators.
During the hearing paralegals must be even more familiar with documents
than they are in litigation because of the impromptu nature of arbitration hear-
ings. Being able to “think on your feet” is a particularly important attribute of
paralegals in the arbitration field.
Litigation paralegals are not the only paralegals potentially connected to
the arbitration process. Paralegals working in the corporate and real estate
areas must research jurisdictional arbitration requirements to ensure that the

arbitration clauses in their contracts comply with these requirements. This
can be particularly tricky in the international arena where arbitration laws
vary greatly. Careful drafting of arbitration clauses prevents jurisdictional dis-
putes at a later date.
Paralegals with expertise in a particular field may want to look into be-
coming an arbitrator. The AAA accepts nonlawyers who are experts in their
field and some organizations use nonlawyers as arbitrators. To get experience
as an arbitrator, consider consulting the Better Business Bureau, which uses
arbitrators on a volunteer basis to preside over consumer disputes.
M E D I AT I O N
Mediation uses a neutral third party to facilitate communication between dis-
puting parties, assisting them in defining key issues, identifying possible op-
tions and alternatives, and enabling them to reach a mutually agreeable com-
promise. Unlike an arbitrator, a mediator cannot force a decision on the
parties; therefore, a mediator must rely on effective communication skills to
encourage parties to express their feelings and to listen to their opponent’s
position. For mediation to be effective the parties often must undergo a per-
ceptual shift. Winning at any cost is such a predominant theme in American
culture that parties have to understand that mediation is designed to create a
“win–win” situation that meets everyone’s needs.
Mediation is usually voluntary although participation is sometimes man-
dated by contract or by the court. Settlement, however, can never be mandated.
When settlement is reached, studies show that mediated agreements are more
likely to be complied with than decisions imposed by arbitrators or judges. This
success may be because the parties take an active role in the decision-making
process.
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FORMS OF MEDIATION
Several models of mediation exist. Under some models, such as the commu-
nity model, the mediator takes a very nondirective role, helping the parties
brainstorm and keeping the lines of communication open. The mediator does
little or nothing to suggest resolution. His primary role is to encourage the par-
ties to express their feelings and explore possible solutions. Although some
preliminary research indicates that agreements reached under this approach
appear to be longer lasting than those obtained under the direction of a more
controlling mediator, this approach can be very time consuming and imprac-
tical when time constraints exist.
The approach more likely to be used when attorneys are involved is the
model typically used in the business community. Here the mediator partici-
pates more actively, suggesting resolutions and urging the parties to accept
these resolutions. Under this approach the expertise of the mediator can be
helpful in assisting the parties to understand their conflict, evaluate their po-
sition, and forge some kind of agreement. This approach seems to result in
higher rates of settlement than the nondirective approach described earlier

but not necessarily in settlements that are as permanent.
One of the newest approaches to mediation is called transformative
mediation and is used extensively by the U.S. Postal Service. This approach is
even less directive than the community model. No expectation exists that any
settlement will necessarily be reached. The primary purpose of this type of
mediation is to allow the parties to speak until they have nothing else to say.
If at the end of the mediation, the parties have not reached any consensus but
have experienced some kind of “transformation” in that they understand the
conflict and feel they can live with a lack of resolution, the mediation is con-
sidered successful. Very few guidelines limit the parties’ conduct and emo-
tional flare-ups are expected and permitted. The rationale is that by fully ven-
tilating pent-up feelings and thoughts, the parties can eventually get to what
is at the core of their dispute. This kind of mediation seems to work well in em-
ployment disputes and in domestic relations cases. Putting It
Attorneys may or may not attend mediation sessions. If, however, one side Into Practice:
is represented by counsel, the opposing side most certainly should be repre- What type of mediation
sented; nothing is served in mediation if one of the parties feels besieged. Ad- process would be most
vocates of mediation often recommend that an attorney serving as litigation appropriate in Shannon’s
counsel should not also serve as mediation counsel because the roles are so case?
different. Litigators in particular often find it difficult to switch to a mediator
role because they are so geared for combat in the courtroom.
Your Local Notes

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MEDIATION PROCESS
Although the mediation process varies depending on the type of model used,
certain general procedures are followed. The mediator sets the date for the
mediation and informs the parties of the rules that will be followed during
the mediation. Some mediators will meet with the parties separately before
the mediation begins so they better understand the dispute. Some mediators
also allow the parties to submit position papers outlining their positions and
the reasons they have assumed this stance. Other mediators believe that any
foreknowledge about the dispute will create preconceived notions that make
it more difficult for the mediator to be neutral. They contend that preparing
position papers allows the parties to become more deeply entrenched and
committed to their positions, thereby inhibiting resolution of their dispute.
At the beginning of the formal mediation, the mediator explains her role,
the confidential nature of the proceedings, any ground rules (e.g., no name-
calling), the benefits of mediation, and the procedural steps that will be fol-
lowed (if any). She begins to establish a rapport with the parties, identifies any
potential conflicts of interest, encourages the parties to mediate in good faith,
solicits their active participation, and asks if they have questions.
During the fact-gathering stage that follows the introduction, the party
who brought the dispute to the mediator is usually asked to tell his story first
and then the opposing party is given an opportunity to respond. The media-
tor is not obliged to follow this order, however, and if multiple issues are in-
volved, the parties may prioritize the issues before beginning the mediation.
Depending on the level of participation of the mediator, she may assist the par-
ties in practicing good communication skills, may reword judgmental language
used by anyone, and may ensure that the parties have equal opportunities to
speak. This first phase of mediation can be highly charged if the parties venti-
late their feelings and opinions.
After this “venting” the mediator may choose to caucus with the parties
separately. This is done if the mediator feels the session is getting out of con-
trol or if the mediator needs to clarify an issue outside the hearing of the other
party. Caucuses cannot be done without the consent of the other party and
nothing discussed during a caucus can be disclosed to the other party with-
out consent of each party.
During the fact-gathering stage, the mediator will begin to define the is-
sues, helping the parties to focus on the issues rather than their positions.
At appropriate times the mediator will reinforce points of agreement and
conduct “reality checks” whenever necessary. The mediator steers the par-
ties away from past events and focuses them on what they want to see hap-
pen in the future. The mediator is responsible for creating an environment
in which the parties feel free to brainstorm possible options and to offer
solutions without fear of censure. If no suggestions are forthcoming, the
mediator may, depending on the style of mediation, offer some suggestions
or ask questions that may lead to creative problem solving. In the event of
an impasse, the mediator uses all of her skills to circumvent the “obstruc-
tion” so that the discussion can continue. As solutions are proposed the
mediator must guide the parties in assessing the practicality and reason-
ableness of their proposals. Doing this often requires focusing the dis-
putants on the consequences of their decisions in terms of potential future
litigation, economic and emotional costs, stress on relationships, and
other practical concerns.
Once a tentative agreement is reached, the mediator clarifies the terms of
the agreement and makes sure all parties understand the terms of this agree-
Putting It ment. One way this can be accomplished is by having the parties restate the
Into Practice: agreement in their own words. The essence of the agreement is then prepared
Would you advise in writing, although the parties may want to have the agreement reviewed by
Shannon to try mediation an attorney before signing a formal agreement. In a court-ordered mediation
to resolve her case? the parties may be required to appear before a judge to finalize their agree-
ment. Whatever the formal requirements for closure, advocates of mediation
recommend some kind of personal closure as well, symbolized by perhaps a
handshake or a sharing of coffee.
Your Local Notes

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Unlike the field of arbitration, mediation is wide open to paralegals. Mediators
are not required, or even necessarily encouraged, to be attorneys. Attorneys
tend to view disputes in terms of who is “right” and “wrong,” whereas media-
tors must be nonjudgmental in both attitude and behavior. They must avoid
even the appearance of evaluation if they are to preserve their role of neutral-
ity. Accordingly, they must know how to use non–value-laden verbal language
and how to exhibit neutral body language.
Mediators must model active and empathic listening. They must be able
to discern what is actually being said (which is sometimes different from the
SIDEBAR
Advocacy in Mediation
Advocacy in mediation requires different skills from those needed for litiga-
tion. Litigators must persuade the trier of fact to accept their position. In open-
ing statements, for example, they must sell their client’s story with such persua-
siveness that any alternative version seems implausible. Mediators, on the other
hand, must sell their client, not their client’s story, during opening statements.
They must persuade their adversary, more so than the mediator, to be sympa-
thetic to their cause. Because most parties arrive at mediation already distrust-
ing the opposing lawyer, attorneys are wise to use opening statements to set a
tone of humility, respect, and humanity rather than to gain a competitive ad-
vantage. A persuasive but sympathetic opening addressed to the adverse party
and counsel can set the stage for a positive settlement.
Likewise, good advocacy in mediation requires being able to understand
the other party’s perceptions. Indeed, the attorney’s motto should be “seek first
to understand and then to be understood.” Understanding the opponent’s per-
spective allows attorneys to be more flexible if that perspective makes sense, and
to persevere for a more favorable settlement if the opponent’s perspective makes
no sense.
Gaining that perspective can take time and for that reason the mediation
process is often time consuming. People need time to process information; if not
allowed sufficient time to do that, they will cling tenaciously to their original
perspective. Consequently, two of the most important qualities of a good advo-
cate in mediation are patience and perseverance.
For obvious reasons, attorneys should never threaten or make pejorative
statements about their opponents. Settlements are essentially based on trust; by
undermining that trust, threats and pejorative statements minimize the chances
of settlement. Furthermore, opponents may react to threats and insults by hard-
ening their position and resolving to take the dispute to the courthouse. While
ridicule or accusation may serve to discredit or rattle a witness at trial, they are
simply not effective negotiating tools.
words being used). Similarly, they must be able to reframe what a party has
said in a nonjudgmental way that reduces the “charge” (sting) on the commu-
nication so that the receiving party can respond rather than react. It is this ca-
pacity to keep the lines of communication clean that enables mediators to
keep parties on track rather than going down emotional “rabbit holes” that
jeopardize the possibility of settlement.
In addition to excellent listening skills, paralegals must be flexible enough
to adapt to the particular needs of the participants. Some individuals respond
better to gentle, restrained intervention, whereas others need more forceful
guidance. The interpersonal skills required to be an effective mediator are
quite sophisticated. Mediators must know, for example, how and when to steer
people through impasses, how to help them save face, and how to stimulate
creative problem solving without suggesting the resolution.
In general, successful mediators have patience, a sense of humor, a strong
sense of caring, and a desire to help others solve challenging problems. They
are able to stay calm in the presence of strong emotions. They express them-
selves clearly and hear others with minimal distortion. Above all, they gen-
uinely like people and are tolerant of human eccentricities.
Paralegals who want to remain in litigation can still play a role in mediation.
The same tasks that must be completed to prepare for litigation are also needed
to prepare for mediation. With those matters that do not begin with litigation,
investigative research is still necessary to ascertain information about assets,
background of the parties, basic information relating to the issues, and so on, to
ensure that any negotiations are conducted in good faith and that any settle-
Putting It ment reached is as fair as possible. If a matter starts down the litigation path but
Into Practice: is referred by the court to mediation, the paralegal may assist in drafting such
What types of people do documents as a motion for referral to mediation. If mediation becomes a reality,
you think are best suited the paralegal may help prepare a position paper to educate the mediator about
to be mediators? the case and if settlement is reached, the paralegal may prepare a settlement
agreement and any related documents.
Nonlitigation paralegals are often responsible for drafting agreement-to-
mediate clauses in real estate contracts and other commercial transactions.
As with arbitration clauses, preparation of such clauses requires research of
the ADR laws in the relevant jurisdiction.
Your Local Notes

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M E D -A R B
A hybrid form of ADR created by combining mediation and arbitration is med-
arb. In this approach mediation is attempted first; if the parties fail to agree to
a settlement, the same neutral that facilitated the mediation conducts an ar-
bitration. The obvious problem that arises in this case is that the so-called
“neutral” is no longer neutral, having heard information that could influence
the arbitration. On the other hand, the med-arb approach is efficient and cost
effective in that the parties present their evidence only once.
Some critics of med-arb point out that parties are less likely to fully disclose
information to a mediator who may then use that information against their in-
terests in the arbitration. If, for example, a party during mediation admits that
it would be willing to accept a settlement of $10,000, the mediator turned arbi-
trator would then know that it could award $10,000 rather than the $20,000 be-
ing demanded by that party. If, on the other hand, the party failed to disclose
its bottom line during the mediation for fear of how this information might be
used in the event of an arbitration, the mediation process would be compro-
mised and settlement would be less likely. By the same token, an arbitrator who
wanted to obtain referrals for future mediations/arbitrations would be reluc-
tant to grant an award based on disclosures made during a mediation for fear
of the disclosing party’s reaction. Therefore, the integrity of both the mediation
Putting It and the arbitration can be compromised when the two are combined.
Into Practice: The best use of med-arb seems to be with parties who like the cost sav-
Do you think med-arb ings and efficiency of this approach, who trust the integrity of the mediator/
is a viable form of arbitrator being used, and who stand in relatively equal bargaining relation-
dispute resolution in ship with each other, thereby minimizing the chances of one party manipu-
Shannon’s case? lating the process to its advantage. Parties who feel they run the risk of being
outmaneuvered in this process are probably better advised to go through me-
diation and then a separate arbitration using a different neutral.
Your Local Notes

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Paralegals have the potential to serve the same functions as they would in a tra-
ditional mediation or arbitration. Additionally, they may be asked to research
the potential uses of med-arb when drafting ADR provisions in contracts.
S U M M A RY J U RY T R I A L
The only ADR approach that uses an actual jury is the summary jury trial. In
this approach the attorneys present an abbreviated version of the evidence;
live testimony may not be allowed. The jury is selected from an actual jury pool
using a modified voir dire process (generally only two peremptory strikes are
allowed). After hearing the summarized evidence, with each side being given a
short time, usually an hour or two, the jurors are allowed to deliberate and
asked to deliver a consensual verdict if possible. If consensus proves impossi-
ble, each juror is asked to submit separate and anonymous findings. Although
the jury’s verdict is nonbinding (which the jurors may or may not be told), the
attorneys are encouraged to engage in a round-table discussion with the jurors
to gain some insights into how the jurors reached their conclusions.
To participate in this form of ADR, the litigants must have completed dis-
covery and essentially be ready to go to trial. The attorneys must draft pro-
posed jury instructions and submit trial briefs. A few days before the summary
trial, the judge hears motions in limine and rules on objections in advance. At
trial, objections are kept to an absolute minimum or are not allowed at all.
Summary jury trials seem to work best when only one or two key issues
are involved, the financial stakes are high, each party wants to go to trial and
is convinced that it will win, and a normal trial would probably take at least
one week to complete. After seeing the outcome of a summary jury trial, the
litigants are sometimes more willing to settle or to settle for a more reasonable
amount. Parties that stubbornly refuse to believe they could lose at trial be-
come less recalcitrant when a verdict is rendered against them or they receive
an award that is substantially less than what they anticipated.
Even proponents of this approach, however, point out that summary trials
are not for everyone and will definitely not work until the parties are substan-
tially ready to go to trial. Although one of the benefits of summary trials is the
reduction of trial costs (since a summary trial is substantially less expensive
than a regular trial), the costs can actually increase if the parties refuse to ac-
cept the jury’s verdict and insist on going to trial. Sometimes, however, even
though the parties still go on to a full-length trial, that trial is shortened be-
cause the parties agree to limit the issues that must be tried. In short, the ben-
efits of summary jury trials are that they expedite trials, reduce the cost of lit-
igation, and help crystallize the issues that must be resolved.
A major criticism of summary jury trials is that because they present the
evidence in such an abbreviated manner, the jurors are left with an incomplete
picture and, therefore, their conclusion is inconsistent with the verdict that
would have been rendered had they been presented with all the evidence. Sim-
ilarly, some point out that the jury is being asked to evaluate evidence based
on the attorneys’ presentation of that evidence, whereas they might decide dif-
ferently if they were exposed to all of the actual witnesses.
Many states have adopted rules encouraging the use of summary jury tri-
als. At the federal level, proponents maintain that the process is firmly rooted
in the Rules of Civil Procedure (particularly FRCP, Rule 16, which gives the ju-
diciary the right to order litigants to attend pretrial conferences). Consider-
able controversy exists, however, as to whether judges can compel litigants to
use summary jury trials. Although most federal courts agree the process can
Putting It be mandated, those who disagree argue that the drafters of FRCP, Rule 16, in-
Into Practice: tended judges to encourage litigants to explore nonadjudicatory procedures
Are there any ways but did not intend to require them.
Shannon might benefit Beyond the question of whether summary jury trials can be compelled is
from having a summary the question of whether these proceedings are confidential or open to the pub-
jury trial? Would you lic. Those who claim they are confidential maintain that this form of ADR is a
advise her to take this settlement technique that should enjoy the same protected status as other
route? settlement procedures. In contrast, those who argue against confidentiality
point out that civil matters are presumed to be open to the public and that do-
ing so ensures the integrity of the process.
Your Local Notes

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M I N I -T R I A L
A process that shares some similarities with the summary jury trial is the mini-
trial. As with the summary jury trial, the attorneys prepare as if they were go-
ing to trial but then present their cases in an abbreviated fashion. Unlike the
summary jury trial, their case is put before party representatives who have the
authority to settle. Also unlike the summary jury trial, the mini-trial is a volun-
tary proceeding (not mandated by a judge) and the referee is usually an expert
in the matter at hand rather than a judge. Because of this setup the parties have
the freedom, as they do in mediation, to create their own solutions.
No exact format for mini-trials exists because the parties are encouraged
to create their own format. However, certain steps are taken in every mini-trial.
The parties agree in advance to the procedural rules, including the limits on
discovery, that will be followed. Live testimony can be presented but often is
not and the trial process is abbreviated, usually lasting less than one week. A
neutral third party serves as referee but representatives of the party decide
how the case will be resolved. If the parties fail to settle, the neutral may ad-
vise the parties of the strengths and weaknesses of their case.
As with summary jury trials, mini-trials help the parties focus on the key
issues of their case and help reduce the posturing in which parties typically
engage. Hence this process reduces the time and cost spent litigating rela-
tively minor issues. Advocates of mini-trials point out that this form of ADR is
favored by business executives because it allows them rather than their at-
torneys to be in control of the dispute. Therefore, mini-trials are most suc-
cessful when the parties have an ongoing business relationship that they
would like to continue. Mini-trials are not recommended when high emotional
stakes are involved or when an individual is suing a company. The process

works best when equally sophisticated business representatives sit on oppo-
site sides of the issue. Those who object to the sometimes mandatory nature Putting It
of summary jury trials often find mini-trials acceptable because they are vol- Into Practice:
untary. They also satisfy some parties’ need to have their “day in court.” At- Are there any ways
torneys find them particularly useful for clients who overestimate the strength Shannon might benefit
or value of their case. Clients who are adamantly opposed to negotiations from having a mini-trial?
sometimes soften to the notion of settlement after hearing both sides of the Would you advise her to
case presented. take this route?
Your Local Notes

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The role of the paralegal in both mini-trials and summary jury trials is similar.
The work done during the prefiling, filing, and discovery phases of such cases
is the same as that done in preparing a case for litigation. If the parties decide
to have a mini-trial, however, the paralegal may participate in drafting the mini-
trial agreement, which will set forth the agreed-on procedures to be followed.
In preparation for the summary presentation of evidence, the paralegal
will review all documents and depositions with an eye toward refining and con-
densing them. Good summation skills are essential to carry out this crucial
task because all of the evidence must be crystallized into a form that captures
the essence of the case. As part of this process the paralegal may be asked to
retrieve selected excerpts from various documents and depositions. There-
fore, an intimate knowledge of all relevant documents is critical if this task is
to be manageable. As in litigation preparation, the paralegal will be asked to
prepare evidentiary displays that can be used during the presentation of evi-
dence. If the case is settled, the paralegal may be allowed to assist in drafting
the settlement agreement as well as in organizing any confidential materials
that are either to be destroyed or stored. But throughout this process, the
paralegal must have in mind that the case may not settle and be prepared to
get ready to go to trial.
OTHER OPTIONS
Other options that exist as alternatives to litigation are private judging, neu-
tral expert fact finding, and the ombudsman. With private judging the parties
agree to have a neutral, who is usually a retired judge, hear and decide their
case. This option gives the parties the power to select their own judge (in-
cluding one who has expertise in the matter at hand), to schedule an expe-
dited hearing, and to establish their own rules governing the procedure. This
process can occur outside the realm of the court’s jurisdiction by private
agreement between the parties or can occur when a judge or the parties re-
quest a private judge. In the latter case, the so-called “rent-a-judge” statutes
require that the private judge follow the procedural requirements of a formal
trial and apply the law of that jurisdiction. The private judge must then sub-
mit his findings of fact to the presiding judge (the judge with whom the case
had been filed). The private judge’s decision is binding but can be appealed.
Neutral expert fact finding can be voluntary (private and outside the
court’s intervention) or involuntary (court ordered); in both cases it is non-
binding. A neutral with expertise in the question at issue is used to make rec-
ommendations. This approach is used to resolve complex disagreements in
the securities, patent, medical malpractice, and antitrust areas of the law. Such
proceedings tend to be very informal and of an investigatory nature. They fo-
cus on obtaining impartial feedback from someone whose expertise in the area
of question is respected by both parties. This process is sometimes followed
by an arbitration, mediation, or litigation.
Putting It A nonadjudicatory process that is used involves the use of an ombudsman,
Into Practice: who is accustomed to hearing disputes or complaints and recommending how
Do you think Shannon they might be resolved. Hospitals, corporations, and educational organizations
might benefit from any of use ombudsmen to resolve employee as well as customer complaints. These
the ADR options described people work for the organization but report to the chief executive of the agency
in this section? and remain outside of the internal chains of command. Ombudsmen typically
engage in a wide range of activities, including mediation, arbitration, fact find-
ing, counseling, problem solving, and information exchange.
Your Local Notes

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BRIGHT AND DARK

S I D E O F ADR
ADR is still in its infancy. As such, little research has been done to date to test
its efficacy either as it is used privately or in the court system. However, both
proponents and skeptics agree that ADR can potentially save time and money.
In light of the alleged litigation explosion, ADR represents a means of resolv-
ing disputes more expeditiously and without the inordinate costs of litigation.
Businesses in particular, especially those who engage in international com-
merce, have found ADR to be a viable form of dispute resolution. Furthermore,
by relieving some of the congestion in the courts, ADR opens the door for
cases that truly demand litigation.
On the other hand, one of the criticisms levied against ADR is that it actu-
ally adds time and creates more expense to resolve disputes. This criticism is
particularly applicable to court-annexed arbitration that mandates that cases
below a certain dollar amount must go to arbitration. The parties must pre-
pare for a hearing, take time off work to attend the hearing, wait for the arbi-
trator’s award, and then notify the court they are dissatisfied with the award
before they are allowed a trial de novo. Mediation can also require more time
to complete than would litigation, particularly if the issue involves several
people in a community and has a strong emotional context.
In rebuttal, however, efficiency is not necessarily the best measure of suc-
cess in cases of this nature. Giving people the time to vent their frustrations
and express their feelings may save time in the long run because the solution
that is eventually crafted may resolve the problem permanently. A more expe-
ditious resolution, on the other hand, may result in the parties coming back to
court at a later date because of their unwillingness or inability to conform to
a court’s dictate. Furthermore, evidence exists that supports the premise that
compliance with the resultant decision is greater with those who are given an
opportunity to participate in the decision making than those to whom the out-
come is simply dictated. As mentioned earlier, those mediations in which the
mediator plays a nondirective role result in greater compliance than those in
which the mediator is more directive.
Another benefit of ADR is that the availability of the many varieties of ADR
allows parties to enjoy more flexibility than is found in traditional litigation.
They can choose from a simplified hearing process or can assert control over
the decision-making process through mediation. They can enjoy the privacy
and nonbinding nature of some forms of ADR, which allow them to air their
grievances simply and efficiently and still fall back on the traditional forms of
litigation if they so decide. All the preparation they put toward preparing their
case for ADR can be applied to litigation. Even when ADR fails, it can still sim-
plify the litigation process and allow attorneys to prepare cases more effi-
ciently and less expensively. It also helps parties avoid the uncertainty of liti-
gation and provides them with remedies that are more flexible than typically
available in the judicial process.
Some are concerned, however, that ADR may force those who cannot af-
ford to litigate to lose some of the rights to which they are entitled in litigation.
They point out that inexpensive and expeditious adjudication is not neces-
sarily synonymous with fair and just adjudication. Because parties do not al-
ways possess equal power and resources, the concern is that informal
processes lacking procedural protection will result in ill-informed decisions.
These critics point to family law as one area where ADR may bring about a
“second-class” justice. They argue that the rights that women have gained dur-
ing the 1990s may be lost if domestic relations disputes are pushed into ADR.
Although studies show that mediation program participants are often pleased
with the process and the results, divorce mediation raises concerns about
power imbalances between the mediating parties. Especially where there is a
history of domestic violence, the party being abused may feel incapable of ne-
gotiating on her own behalf. Critics of ADR believe that disadvantaged indi-
viduals benefit most from formal legal processes, that the more intimate ADR
processes may actually prejudice weaker individuals, and that even after
agreement is reached, judicial oversight may be necessary to protect the
weaker parties.
Despite the possibility of not protecting less powerful individuals, ADR of-
ten preserves relationships that might otherwise be severed after enduring the
travails of litigation. With mediation in particular, parties are able to communi-
cate directly with another. After venting their feelings, they can then focus on
a rational cost/benefit analysis of the difference between litigating and settling.
In contrast, however, some point out that some disputes cannot be re-
solved by mutual agreement and good faith because these disputes reflect
sharply contrasting views about fundamental public values that cannot be
eliminated by simply encouraging disputants to understand each other. These
critics maintain that a potential danger of ADR is that disputants who seek
only reconciliation may ignore public values reflected in rules of law estab-
lished by the legislature. Some controversies, they argue further, should be
brought to the public’s attention. They feel difficult issues of constitutional or
public law and matters that affect large groups, such as pollution and corpo-
rate fraud, should be adjudicated to ensure the proper application of public
values. Environmental disputes, which they cite as illustrative of this problem,
are often settled by mediation. The danger, these critics maintain, is that en-
vironmental standards will be created by private groups without the demo-
cratic checks of governmental institutions.
One of the strengths of ADR is that it helps people focus on their real needs
and overcome perceptual differences. Neutrals who facilitate the ADR process
assist parties in realistically evaluating their case by pointing out its weak-
nesses. As a result, proposals suggested by these third parties can avoid the
Putting It knee-jerk negative reactions that might be precipitated by proposals sug-
Into Practice: gested by the other party. Figure 6–1 summarizes the pros and cons of ADR.
What is your overall
assessment of ADR as an Your Local Notes
option to litigation?
__________________________________________________________________________
__________________________________________________________________________
Figure 6–1 Pros and Cons of ADR
Pros Cons
Saves time Can take more time than litigation alone
Saves money In some cases costs more money than
litigation alone
Relieves court congestion Requires some parties to take extra steps
Increases compliance with Not always efficient
decisions rendered
Gives parties more flexibility Parties do not get their day in court
Allows parties to avoid Denies litigation to those who need it
uncertainty of litigation
Assists in preparing for litigation Increases cost of eventual litigation
Gives alternative form of dispute Provides “second-class” justice to poor
resolution to poor
Helps preserve relationships Fails to protect weaker parties
Allows venting of feelings and Some disputes cannot be resolved just
opinions through understanding
Helps people realistically assess Denies procedural protections to some
their case
SIDEBAR
Quality Control
ADR works only if the neutrals are well trained. The question then is “What
kind of training should be required?” Some believe that neutrals must have sub-
stantive expertise in the field in which the dispute arose, as do most arbitrators,
who are experts in their field and certainly more knowledgeable about the issue
at hand than the average juror. Others argue that a lack of substantive knowl-
edge is an asset because the neutral will be less likely to prejudge the situation
(in an arbitration) or offer options (in a mediation). They point out that those
who opt for ADR can select another neutral if they believe the one they have
been assigned is unqualified, whereas litigators have little or no choice about
the judge they are given.
A corollary to the training issue is the question of whether ADR should be
regulated and, if so, by whom it should be regulated. Bar associations often see
themselves as best equipped to moderate ADR but nonlawyer facilitators often
see it differently. Their concern is that the legal profession will make ADR the
province of those with legal training and will strip ADR of its unique character-
istics by making facilitators become mini-lawyers.
L I M I TAT I O N S OF ADR
Even the most ardent supporters of ADR understand that ADR cannot be used
to resolve every controversy, ADR is not appropriate, for example, when one
party needs a judicial precedent. Without this legal guidance others in similar
situations will have no signpost by which to model their conduct. Certainly the
state of civil rights law would have been seriously compromised had all race
discrimination cases in the 1960s and 1970s been mediated rather than adju-
dicated. ADR is also inappropriate when there is a need to bind nonparties
(e.g., to establish title to property).
Some go one step further and contend that the courts should not be al-
lowed to annex ADR. Putting ADR into the courthouse, they contend, makes
both ADR and the court processes more cumbersome. Even parties with cases
that ought to be adjudicated are forced into the time, expense, and apparent
irrelevancy of ADR.
On a more philosophical note, they argue that reformers of the legal system
have confused the purpose of ADR (reaching settlement) and the trial process
(vindicating rights, establishing societal norms, and determining fault). These
critics urge reformers to channel those disputes where settlement is the goal
into ADR and those where fault needs to be assigned or rights/norms estab- Putting It
lished into the court system. Once the parties’ interests have been identified, Into Practice:
they suggest dispute resolution mechanisms be chosen that do not compro- What do you think the
mise the parties’ interests. Furthermore, they argue that the system should future of ADR is in this
consider the nature of the rights involved in the dispute and determine whether country?
the public has an interest in resolving the dispute. The sidebar below summa-
rizes the questions that still remain unanswered in reference to ADR.
Your Local Notes

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SIDEBAR
Questions That Remain to Be
Answered About ADR
■ Can ADR programs be adequately staffed and funded over the long term?
■ Will litigants choose ADR in lieu of litigation or in addition to litigation?
■ What effect will ADR have on the judicial caseload?
■ Can we avoid “second-class” justice for the poor and disenfranchised?
■ How do we ensure that public law questions are resolved appropriately?
■ What criteria should we use to evaluate ADR programs?
■ Should neutrals have substantive expertise in the field in which they are
facilitating dispute resolution?
■ Should ADR be mandatory or voluntary?
■ Should ADR be regulated and by whom?
■ Is ADR an appropriate means of resolving all kinds of disputes?
hypothetical
“
S o have you decided what you want to do?” asked Allen when he called
Shannon a few days later.
“Yes, I’ve decided I want to go to trial. I thought about mediation but I re-
ally don’t want to have to sit across a table from Collins. I don’t think I could
stand to look at him. Every time I even think of his face I go through that
whole nightmare all over again.” Shannon shuddered involuntarily just think-
ing about the possibility.
“And you’ve eliminated arbitration as well?” queried Allen.
“Yes. I like the idea of a simpler, cheaper way of getting this whole mess
resolved but the bottom line is that I want to have a jury hear my story. I re-
ally think a jury would understand what I went through better than some ar-
bitrator and I’d rather take my chances with six to twelve people than one.”
“And the summary jury trial. . . . ”
“I thought about that too and although I like having a jury I want them to hear
the whole story. I don’t want to rush through it just so we can get done in a day.
Don’t take it personally, but I don’t want you telling my story. I want to be able to
tell it myself. I’ve seen enough TV shows. I know what the defense attorneys will
try to do to me but I don’t care. I want my day in court and I don’t want to settle
for anything else,” explained Shannon, emphasizing her last statement.
“And that you shall have,” declared Allen. “We will prepare to go to trial.
So let’s start talking about what you can expect after we get a trial date.”
ETHICAL ETIQUETTE
ETHICAL RULES 1. Self-determination: A mediator shall
FOR MEDIATORS recognize that mediation is based on
the principle of self-determination
T he American Bar Association
(ABA), the American Arbitration
Association (AAA), and the Society of 2.
by the parties.
Impartiality: The mediator shall
Professionals in Dispute Resolution conduct the mediation in an im-
(SPIDR) have developed a set of partial manner.
standards to be used as guidelines in
3. Conflicts of interest: A mediator shall
the practice of mediation. These
disclose all actual and potential
standards are designed to be a first step
conflicts of interest reasonably
in the process of assisting practitioners,
known to the mediator. After dis-
and the developers of this code
closure, the mediator shall decline
recognize that these standards may
to mediate unless all parties choose
have to be altered due to statutes or
to retain the mediator. The need to
contractual agreements. They are
protect against conflict of interest
designed, however, to guide mediators,
also governs conduct that occurs
to inform parties, and to enhance public
during and after the mediation.
confidence in the mediation process.
The following standards are found 4. Competence: A mediator shall me-
in the Standard Code of Conduct (note diate only when the mediator has
that we have not reproduced the entire the necessary qualifications to sat-
code with its discussions and isfy the reasonable expectations of
comments, merely the basic standards): the parties.
ETHICAL ETIQUETTE continued
5. Confidentiality: A mediator shall 7. Advertising and solicitation: A me-

maintain the reasonable expecta- diator shall be truthful in advertis-
tions of the parties with regard to ing and solicitation for mediation.
confidentiality.
8. Fees: A mediator shall fully disclose
6. Quality of the process: A mediator and explain the basis of compensa-
shall conduct the mediation tion, fees, and charges to the parties.
fairly, diligently, and in a manner
9. Obligations to the mediation process:
consistent with the principle of
Mediators have a duty to improve
self-determination of the parties.
the practice of mediation.
PRACTICE POINTERS
Client Preparation
Preparing a client for ADR is important and yet is often overlooked by at-
torneys, some of whom do not really understand ADR processes. If you know
what clients must know and understand to more fully participate in the ADR
process of their choice, it will be easier for you to assist in preparing them. To
begin with, clients must know before entering into any kind of alternative
process what they want, what the dispute means to them, and the risks of en-
tering into litigation. Clients must also understand the mechanics and benefits
of the ADR process and the role of each person in the process (including their
role, the attorney’s role, and the role of the neutral).
Clients must be guided in realistically assessing the strengths and weak-
nesses of their case (something neither attorneys nor clients enjoy doing) and
in assessing what their best interests are, as opposed to their legal position.
Following this objective evaluation, clients must be made to consider the va-
riety of possibilities that might settle the case and what would constitute a fair
settlement under the circumstances.
Although sometimes contrary to the instincts of the litigator, clients must
be instructed as to the importance of listening to the opponent with an open
mind and being willing to reevaluate their position on hearing their opponent’s
presentation. Beyond that, clients will benefit from learning the importance (in
some forms of ADR, such as mediation) of apology and listening empathetically.
At the very least, clients must be instructed not to insult or provoke the oppo-
nent or do anything that would unnecessarily jeopardize the possibility of set-
tlement. Furthermore, clients must be forewarned to be patient and allow the
negotiation drama (of monetary offers, counteroffers, counter-counteroffers,
and so on) to unfold.
Finally, clients must be counseled to consider their best alternative to a ne-
gotiated agreement (BATNA) as well as worst alternative to a negotiated agree-
ment (WATNA). Is the best alternative litigation? If so, what are the costs, risks,
and burdens associated with litigation? The BATNA drives parties toward offers
that are better than the best alternative and away from offers that are worse
than the best alternative. By the same token, if the WATNA is highly likely, even
slightly better offers are more attractive. The point is that parties are not fully
prepared to begin the ADR process until they know their BATNA and WATNA and
those of their adversary and are able to express them clearly.
TECHNO TIP
To find out the latest trends in commer- 700 available arbitrators/mediators for
cial litigation, as well as to determine what use in resolving disputes using ADR. The
the American Arbitration Association has National Academy of Arbitration can be
to offer, go to their web site at www. found at www.igc.org/naarb.
adr.com.org. The AAA also has a link to In addition to the national and in-
the Federal Arbitration Act and the Ad- ternational ADR organizations you
ministrative Dispute Resolution Act of should not lose site of the services pro-
1996 and they have a listing of all the vided by local and state bar associa-
various state’s arbitration statutes. You tions. Many retired judges and attor-
can also visit the site of the Center for neys, as well as active practitioners
Public Resources (CPR) at www.cpradr. specializing in ADR, can be located by a
org. The CPR site has a list of more than call to the bar associations.
S U M M A RY
The primary forms of ADR used in this country are arbitration, mediation,
med-arb, summary jury trials, and mini-trials. Although ADR is relatively new
to mainstream Americans, it has been used by the Quakers, Puritans, Mor-
mons, and Chinese and Jewish immigrants as a means of avoiding litigation.
ADR was first considered as a means of conflict resolution because some
thought it might be a solution to overburdened courts and the inaccessibility
of the judicial system to the poor and middle class. The status of ADR was
strengthened in the federal system by the passage of ADRA, which encouraged
the use of ADR by the federal government. Most district courts that have re-
viewed mandatory ADR provisions have found them to be constitutional.
Arbitration was one of the first forms of ADR to be used. It allows attorneys
to present their case to a neutral third party but saves the time and money re-
quired to go to trial. Arbitration can be mandatory or voluntary, binding or
nonbinding, and private or court annexed. Private arbitration typically arises
out of a contract clause requiring the parties to arbitrate disputes, whereas
court-annexed arbitration is usually dictated by statute. With private arbitra-
tion the award is usually binding and the parties must pay for the arbitrator’s
services. With court-annexed arbitration the award is usually nonbinding and
the parties can request a trial de novo; the parties do not have to pay for the
arbitrator’s services. Appeals are often discouraged, however, by requiring
fees or by holding parties liable for costs if they do not improve their position
at trial. Disputes involving contracts containing arbitration clauses will go to
private, binding arbitration, whereas matters filed in the courts governed by
statutes requiring arbitration will go to nonbinding, court-annexed arbitration.
The procedures for private arbitration are set forth in the contract re-
quiring arbitration. Many contracts specify the use of AAA rules. Under these
rules arbitrators are selected from a list of names provided by the AAA. The
parties strike those names that are unacceptable, allowing the AAA to select
an arbitrator from the remaining names. Parties can also choose arbitrators
from private sources.
Arbitration can be initiated by one of the parties filing a motion to refer to
arbitration or a demand for arbitration, which the opposing party can dispute.
Court-annexed arbitration begins after the parties file their pleadings. The ar-
bitrator determines how much latitude will be given in the discovery process
but motion practice is generally quite limited. Arbitrations are generally in-
formal procedures in which the rules of evidence are used only as guidelines.
Because of the informality of the process and the lack of extensive discovery,
some feel that going into an arbitration is like playing “blind man’s bluff.” Hear-
ings follow the same outline as trials, beginning with opening statements and
the presentation of evidence, and ending with closing arguments and/or the
presentation of post-hearing briefs. They differ from trials in that they are
closed to the public.
Arbitrators usually take the matter under advisement but must render a
decision within a specified time period. Binding awards cannot be set aside ex-
cept for specific misconduct on the part of the arbitrator. Courts reviewing
these decisions can decide only whether the award was valid and cannot retry
the issues.
Mediation allows parties to find their own way to resolution. The neutral
facilitates communication, assists in defining the issues, identifies possible so-
lutions, and generally aids the parties in working toward compromise. The
level of directiveness of the neutral depends on the type of mediation being
used. The community and transformative models are very nondirective,
whereas the business model most often used when attorneys are involved en-
courages the mediator to be more participatory. Some studies indicate that
the latter approach results in a higher rate of settlement but that settlements
arising out of the less directive approaches are longer lasting.
Mediation is usually voluntary but can be mandated by contract or by the
court. Although attorneys need not be present, if one side is represented by
counsel, it is usually best for the opposing side to also be represented. When
attorneys participate in the mediation process, they must manifest different
skills than those required in litigation. Above all, they must keep in mind that
their primary function is to facilitate compromise, not to win.
The mediation process varies. Some mediators like to meet with the par-
ties before the mediation and ask them to prepare position papers. Other me-
diators believe that any prior knowledge about the dispute makes it more dif-
ficult for the mediator to be neutral. Most mediators open the process by
establishing the rules, explaining their role and the process, identifying any
conflicts of interest, and encouraging the full participation of the parties. Dur-
ing the fact-gathering stage, the parties tell their stories and vent their feelings.
The mediator may then choose to caucus with the parties separately. Nothing
said during a caucus can be disclosed to the opposing party without consent
of each party. The mediator then helps the parties focus on the issues rather
than their positions and on what they want rather than what has happened in
the past. As the parties offer solutions, the mediator encourages them to as-
sess the practicality and reasonableness of their proposals and if no solutions
are proposed may suggest some herself. If an agreement is reached, she clari-
fies the terms of the agreement, making sure that everyone understands what
the agreement is. Once the agreement is formalized, the mediator brings clo-
sure to the process.
A hybrid of arbitration and mediation, called med-arb, begins with a medi-
ation, which, if it is unsuccessful, culminates in an arbitration. The same neu-
tral serves as both arbitrator and mediator. One primary criticism of this ap-
proach is the tainted neutrality of the facilitator, which can potentially
compromise the integrity of both the arbitration and mediation. Efficiency and
cost effectiveness are the primary benefits of this process. Med-arb works best
when the parties have relatively equal bargaining power and trust the neutral.
Summary jury trials and mini-trials both provide means of presenting evi-
dence in an abbreviated fashion and obtaining feedback from neutral third par-
ties. With summary jury trials the evidence is presented to a jury with whom the
attorneys can engage in a round-table discussion after the jury has rendered its
verdict, or if no consensus is reached, after individual jurors have submitted
their verdicts. With mini-trials the evidence is presented to a neutral who is usu-
ally an expert in the question at hand. Summary jury trials work best when only
a few key issues are at stake, when a regular trial would last a week or more, and
when the financial stakes are high and each party is convinced it would win at
trial. They do not work unless the parties are substantially prepared to go to
trial, and they may result in a skewed outcome because the jurors do not get to
hear all of the evidence and what evidence they do hear is presented by the at-
torneys rather than the actual witnesses. Some controversy exists over whether
judges can mandate summary jury trials and whether the proceedings should
be open to the public. Mini-trials also assist the parties to focus on the key is-
sues and to avoid the costs of conventional litigation. Business executives often
like this form of ADR because it gives them—rather than their attorneys—con-
trol of the dispute. Mini-trials work best when the parties have an ongoing rela-
tionship they want to preserve and when no highly emotional issues are at
stake. They give parties their “day in court” and often encourage those who are
adamantly opposed to negotiations to see the value of settlement.
Other less popular ADR options include private judging, neutral expert
fact finding, and the use of an ombudsman. Private judging allows parties to
select their own judge, to schedule an expedited hearing, and to establish
their own rules to govern the procedure. Neutral expert fact finding is often
used when complex issues are involved and is frequently followed by arbitra-
tion, mediation, or litigation. Ombudsmen are used by hospitals, corporations,
and educational organizations to resolve employee and consumer complaints.
Paralegals must prepare cases going to ADR as if they were going to trial.
From the nonlitigation standpoint they may draft contracts with clauses re-
quiring some form of ADR in the event of a dispute. With arbitration, they have
an opportunity to assist in the selection of arbitrators and in drafting demands
for arbitration and responses to those demands. Although paralegals cannot
become arbitrators unless they have expertise in a particular field, they can
become mediators. Good mediators must have excellent communication and
interpersonal skills, patience, a sense of caring, tolerance for human eccen-
tricities, and a willingness to allow others to express strong emotions. Litiga-
tion paralegals also draft referrals to mediation and help prepare position pa-
pers and settlement documents. If the parties opt for a summary jury trial or
a mini-trial, the paralegal may be asked to prepare a summary presentation of
the evidence and must, therefore, have an intimate knowledge of all pertinent
documents and depositions.
KEY TERMS
Alternative dispute resolution Mediation Private judging

(ADR) Mini-trial Summary jury trial
Arbitration Neutral Transformative mediation
Binding Neutral expert fact finding Trial de novo
Court-annexed arbitration Nonbinding Voluntary arbitration
Mandatory arbitration Ombudsman
Med-Arb Private arbitration
Workshop Alert
None of the workshops deal with ADR.

REVIEW QUESTIONS
1. How did ADR first appear in this country? How 9. What is the role of the paralegal in arbitration?
is it being treated by Congress and the federal In mediation?
courts today?
10. What are the qualities of a good mediator?
2. Identify the following forms of arbitration:
11. Describe each of the following:
a. Private
a. med-arb
b. Court-annexed
b. summary jury trial
c. Mandatory
c. mini-trial
d. Voluntary
d. private judging
e. Binding
e. neutral expert fact finding
f. Nonbinding
f. ombudsman
3. How are arbitrators selected under the AAA
12. What are the advantages and disadvantages of
rules?
the following:
4. Describe the basic arbitration process. Explain a. med-arb
how it may be initiated, the precursors to the b. summary jury trial
hearing, the hearing process itself, and the pro- c. mini-trial
cedures subsequent to the issuing of an award.
13. Under what circumstances would you use each
5. How does mediation differ from arbitration? of the following:
a. private judging
6. What are the various types of mediation?
b. neutral expert fact finding
7. Describe the various stages of a typical media- c. ombudsman
tion. 14. Discuss at least four reasons that ADR should
8. What are the qualities of an attorney advocating be utilized as a means of conflict resolution;
well for a client during a mediation? then give a counterargument to each of these
reasons.
PRACTICE EXAM
1. Alternative dispute resolution includes 4. With court-annexed arbitration

a. arbitration. a. the parties are referred to arbitration after
b. mediation. filing their pleadings.
c. private judging. b. parties cannot object to arbitration.
d. all of the above. c. the award is binding.
2. ADR was
a. never used in this country until recently. 5. A binding arbitration award can be set aside if
b. strengthened in the federal system by the a. the arbitrator engaged in misconduct.
passage of ADRA. b. the arbitrator exceeded the limits of his au-
c. foreign to people outside of this country. thority.
d. determined by most district courts to be an c. the arbitrator refused to hear material evi-
unconstitutional violation of the right to a dence.
jury trial. d. all of the above.
3. Binding arbitration 6. At arbitration hearings
a. results in awards that are appealable. a. no rebuttal questions are allowed.
b. is not allowed in the context of private arbi- b. the discovery rules vary from jurisdiction to
tration. jurisdiction.
c. results in awards that are rarely overturned c. no closing arguments are allowed.
by the courts. d. the rules of confidentiality do not apply.
7. During the arbitration process, paralegals d. the mediator makes sure that each party un-
a. have little to do because most of the work derstands the terms of the agreement.
falls to the attorney. 13. Attorneys who advocate in a mediation
b. do not have to be as familiar with documents
a. should come across as humble and respect-
as they are in litigation because of the infor-
ful in their opening statements.
mality of the hearing process.
b. must persuade the mediator that his client is
c. may assist in the screening of arbitrators.
right.
d. do not have to be able to “think on their feet”
c. should reserve ridicule and threats until an
as much as they do during a trial.
impasse is reached.
8. A mediator d. must focus more on making sure that their
a. facilitates communication between the dis- client is understood than on understanding
putants. their opponent’s position.
b. renders a decision and issues an award. 14. Good mediators
c. must do everything possible to steer the par-
a. are tolerant.
ties toward compromise.
b. are interested in helping others solve their
d. tries to get the parties to accept her pro-
problems.
posed solution.
c. know how to help people save face.
9. Mediation
a. requires a directive approach by the mediator.
b. exists in a variety of forms. 15. Med-arb
c. is usually mandated by the courts. a. works best when the parties have unequal
d. agreements are less likely to be complied bargaining power.
with than decisions rendered by arbitrators. b. is cost effective but not efficient.
10. All mediators c. can be problematic because the same neu-
tral is used for the arbitration and media-
a. require parties to submit position papers.
tion.
b. meet with the parties prior to the mediation.
d. uses a different arbitrator and mediator.
c. help the parties identify the key issues.
d. allow parties to vent without restriction. 16. Summary jury trials
11. During the mediation a. work best when the financial stakes are low.
b. allow attorneys to gain insights from how
a. the party bringing the dispute to the media-
the jury reached its verdict.
tor is always allowed to speak first.
c. allow parties to go before a mock jury with-
b. the parties are allowed to express their feel-
out having to actually prepare for trial.
ings.
d. are open to the public.
c. the parties can caucus with one another.
d. an impasse automatically terminates the me- 17. Mini-trials
diation. a. allow parties to have their “day in court.”
12. Once a tentative agreement is reached b. are particularly useful for parties who are
adamantly opposed to settlement.
a. the mediation is over.
c. are favored by business executives.
b. the parties must find some way to create clo-
sure.
c. the parties’ attorneys negotiate a settlement.
18. Hospitals, educational organizations, and cor- 20. ADR

porations often resolve customer and em- a. is most appropriate when there is a need to
ployee disputes using establish precedent.
a. ombudsmen. b. is inappropriate when there is need to bind
b. neutral expert fact finding. non-parties.
c. summary jury trials. c. can effectively be used to resolve every con-
d. private judging. troversy.
d. is particularly effective when fault needs to
19. The strength of ADR is
be assigned or rights need to be established.
a. that it always reduces the cost of resolving
disputes.
b. that it always protects weaker parties.
c. that it always takes less time than litigation.
d. relieves court congestion.
FILL IN THE BLANKS

21. _______________ involves a third-party neutral ties have stricken any potential arbitrators that
who facilitates the resolution of the conflict but are not acceptable to them.
who lacks authority to render a decision.
29. A _______________ arbitration is initiated by fil-
22. _______________ involves a third-party neutral ing a motion to refer to arbitration or a demand
who hears the presentation of evidence by the for arbitration.
attorneys and who issues an award, whereas
30. In the _______________ model of mediation, the
_______________ involves a third-party neutral
mediator encourages the parties to communi-
who hears presentation of evidence by the at-
cate but does little to suggest resolution,
torneys and who issues an advisory opinion
whereas in the _______________ model of medi-
that the attorneys can use to negotiate a settle-
ation the mediator takes an even less directive
ment.
approach and does not necessarily expect the
23. _______________ uses the same neutral third parties to reach settlement.
party to mediate and, if necessary, arbitrate.
31. A hybrid form of ADR involving both arbitration
24. A _________________ requires the use of a jury and mediation is called _______________.
but the jury’s decision is not binding on the par-
32. The only form of ADR that actually uses a jury is
ties.
called a _______________.
25. _______________ arbitration awards cannot be
33. _______________ help parties focus on key is-
appealed (unless the arbitrator engaged in mis-
sues by having the parties present an abbrevi-
conduct), whereas _______________ arbitration
ated form of the evidence to representatives of
awards can be set aside and result in a trial
the parties who have the authority to settle.
_______________.
34. With _______________ the parties hire a neutral
26. Under _______________ arbitration the parties
(usually a retired judge) who hears their case
must try arbitration before they can go to trial.
and renders a decision whereas with
27. A _______________ arbitration takes place _______________ a neutral with expertise in the
within the court system and is governed by lo- matter at hand is used to listen to the evidence
cal rules, whereas a _______________ arbitra- and make recommendations.
tion is based on a contractual agreement and is
35. _______________ are used by hospitals, corpo-
governed by rules agreed on by the parties.
rations, and educational organizations to re-
28. Under the rules of the _______________ arbitra- solve employee and customer disputes.
tors are selected from a list from which the par-
TRUE OR FALSE
36. ADR was not used in the United States until the 52. A complaint must be filed with the court before
early 1970s. T F arbitration can be commenced. T F
37. Arbitration was one of the first forms of ADR to 53. Parties have an absolute right to discovery if
be used in this country. T F they agree to arbitration. T F
38. ADR was initially perceived as a means of solv- 54. Some attorneys feel that going into an arbitra-
ing the problem of overburdened courts that tion hearing is like playing “blind man’s bluff.”
seemed to be inaccessible to the poor. T F T F
39. The 1996 passage of ADRA signaled the demise 55. The rules of evidence are usually followed in ar-
of ADR in the federal system. T F bitration hearings. T F
40. Most district courts that have reviewed manda- 56. Attorneys who are involved in an arbitration are
tory ADR provisions have concluded that those required to file post-hearing briefs as well as
provisions do not violate the constitutional give closing arguments. T F
right to a jury trial. T F
57. Arbitration hearings are open to the public.
41. Arbitration can never be mandated by a court. T F
T F
58. Arbitrators are limited in the amount of time
42. Private arbitration usually arises out of a con- they can take a matter under advisement.
tract clause requiring parties to arbitrate any T F
disputes. T F
59. Courts reviewing arbitration awards are al-
43. An award arising out of nonbinding arbitration lowed to basically retry the issues. T F
cannot be appealed. T F
60. Paralegals working in real estate and corporate
44. Under mandatory arbitration parties can be law must learn to draft arbitration clauses that
forced to settle their dispute. T F meet jurisdictional requirements. T F
45. Parties engaged in a court-annexed arbitration 61. Paralegals cannot serve as arbitrators. T F
can request a trial de novo if they are dissatis-
fied with the arbitrator’s award. T F 62. Unlike arbitrators, mediators do not impose de-
cisions on the parties. T F
46. A contract containing an arbitration clause will
go to private, binding arbitration and the con- 63. Mediation itself is usually voluntary but settle-
tract will dictate the procedures to be followed ment is mandatory. T F
in the arbitration. T F 64. The community and transformative models of
47. A matter filed in the courts that by statute must mediation require a directive approach from the
be arbitrated is considered nonbinding, court- mediator. T F
annexed arbitration. T F 65. The business model of mediation results in
48. Parties involved in binding arbitration do not higher rates of settlement than less directive ap-
have to pay for the services of the arbitrator but proaches but those agreements are not as long
parties involved in nonbinding arbitration do lasting. T F
have to pay for the services of the arbitrator. 66. The transformative model considers mediation
T F successful if the parties understand the conflict
49. Some courts have held parties who appeal arbi- and decide they can live with it even if they do
tration awards liable for costs if they fail to im- not reach a consensus. T F
prove their position at trial. T F 67. Attorneys are not allowed to attend mediation
50. Under the rules of the AAA parties have no in- sessions. T F
put in the selection of arbitrators. T F 68. Litigators sometimes find it difficult to advo-
51. Statutes authorizing judges to order arbitration cate in mediations because their roles are so
usually have presumptions favoring arbitration. different. T F
T F
69. All mediators require parties to submit position 84. Mini-trials and summary jury trials work best
papers before the mediation. T F when the litigants are still involved in the dis-
covery process and not yet prepared to go to
70. The fact-gathering stage of mediation is usually
trial. T F
very quiet because the parties are simply lis-
tening to each other. T F 85. Summary jury trials are the most appropriate
form of ADR when the financial stakes are low
71. The mediator has a right to reveal anything dis-
and several key issues are involved. T F
closed to her during a caucus with the opposing
party. T F 86. Summary jury trials reduce the cost of trial even
if the parties refuse to accept the jury’s verdict
72. The mediator tries to steer the parties away
and go to trial. T F
from past events and focus them on what they
want to achieve. T F 87. The conclusion of a summary jury trial can be
inconsistent with the verdict that would have
73. A mediator may never offer suggested solu-
been rendered if the jury had been able to hear
tions. T F
all of the evidence. T F
74. Mediators help parties assess the practicality
88. Judges have an undisputed right to mandate
and reasonableness of their proposals and as-
summary jury trials and to open them to the
sist them in doing “reality checks.” T F
public. T F
75. Two of the most important qualities of a good
89. The neutral in a mini-trial is usually a retired
advocate in mediation are patience and perse-
judge. T F
verance. T F
90. Parties are encouraged to create their own for-
76. Mediators should model passive and reactive
mat for a mini-trial. T F
listening. T F
91. Business executives favor mini-trials because
77. Mediators should develop a technique for me-
they, not their attorneys, decide how the case
diation and use that same technique with every
will be resolved. T F
mediation they conduct. T F
92. Mini-trials are most appropriate when high
78. Paralegals generally make poor mediators be-
emotional stakes are involved and when an in-
cause they do not have a law degree. T F
dividual is suing a company. T F
79. Once a tentative agreement is reached, the me-
93. Paralegals typically have very little involvement
diator’s job is over. T F
in summary jury trials and mini-trials because
80. Med-arb can create problems for both the par- the presentation of evidence is so abbreviated.
ties and the neutral because the neutrality of T F
the latter can be called into question. T F
94. With private judging parties can select their
81. Med-arb works best when the parties are look- own judge, schedule their own hearing time,
ing for a cost-effective and efficient method of and establish their own procedural rules.
resolving their dispute and feel they have com- T F
parable bargaining power. T F
95. The neutral expert fact-finding process is used
82. Parties in med-arb are usually more willing to most frequently in complex cases because ex-
disclose confidential information than they are perts in the field in question are used to make
in a simple mediation. T F recommendations to the parties. T F
83. With summary jury trials the attorneys often 96. Ombudsmen are successful in resolving dis-
present an abbreviated form of the evidence putes for organizations because they are em-
themselves rather than using “live” testimony. ployed outside of those organizations. T F
T F
97. In some cases ADR can actually add time and 103. Neutrals are required to have substantive ex-
create more expense to resolve disputes. pertise in the field in which they are serving as
T F a neutral. T F
98. Allowing people to participate in the decision- 104. ADR is currently regulated by local bar associ-
making process may actually increase the like- ations. T F
lihood of them complying with the resultant
105. ADR is inappropriate when a judicial prece-
decision. T F
dent is needed or when non-parties need to be
99. When ADR fails it further complicates the liti- bound by a decision. T F
gation process. T F
106. Some believe that courts should not be al-
100. In some cases ADR may bring about a “second- lowed to annex ADR. T F
class” justice. T F
107. Some believe that cases where rights need to
101. ADR helps preserve relationships that might be established or fault assigned should be
otherwise be severed in the litigation process. channeled into ADR whereas those cases
T F where settlement is the goal should be chan-
neled into litigation. T F
102. A potential danger of ADR is that parties may
be content with seeking resolution at the ex-
pense of sacrificing public values that should
be brought to the public’s attention. T F
LITIGATION LINGO
Fill in the missing letters.
1. __ E __ __ V __ New trial
2. __ __ B __ __ S __ A __ Used to resolve consumer complaints
3. __ E __ __ R __ Hybrid form of ADR
4. __ __ A __ __ F __ __ __ A __ __ __ __ Very nondirective form of mediation
5. __ __ N __ __ N __ Arbitration decision that cannot be appealed
6. __ __ D __ __ T __ __ Person who facilitates dispute resolution but who cannot
render decisions
7. __ __ N __ - __ __I __ __ Abbreviated trial presented to neutral third party who
issues an advisory opinion
8. __ __ M __ __ __ Y __ __ __ Y Abbreviated trial presented to jury
9. __ R __ __ T __ __ T __ __ Neutral third party who renders decisions and issues
awards
10. __ N __ __ X __ __ Court arbitration that occurs within the court system
1. Would you suggest using ADR in any of the fol- e. Are continuances allowed? If so, under what
lowing cases and, if so, which form of ADR conditions?
would you suggest and why? f. What kind of evidentiary rules are followed?
a. Drunk driver sideswipes your car. g. Is testimony allowed at the hearing?
b. Tenant stops paying rent and refuses to h. Are transcripts of the hearing available?
move out. i. Within what time frame must the arbitrator
c. Karate instructor breaks your nose. render a decision?
d. Cousin refuses to pay you a percentage of his j. At what point is the award entered on the
business. docket?
e. Contractor does shoddy work on house. k. What must a party do to obtain a trial de
novo?
2. Check the local rules for arbitration in your ju- l. Is evidence of an arbitration hearing admissi-
risdiction and answer the following questions: ble at the trial de novo?
a. What cases are eligible for arbitration? Is ar- m. Does a party take any risks by requesting a
bitration required or voluntary in these trial de novo?
cases?
b. What are the requirements to be an arbitrator?
c. What process is used to select arbitrators?
d. Where are arbitration hearings held?
CHAPTER
7
ROAD MAP
OF A LAWSUIT:
PRETRIAL
PRACTICE, TRIALS,
AND JUDGMENTS
OBJECTIVES
■ What procedural steps must be taken

to obtain a trial setting
■ What goes on behind the scenes as

the attorneys and judges prepare
for trial
■ How a civil trial is conducted
■ What happens when the trial is over
■ What the losing party’s options are
■ How appeals are taken and decided
■ What the winning party must do to

collect the winnings
148 CHAPTER 7 Road Map of a Lawsuit: Pretrial Practice, Trials, and Judgments
hypothetical Shannon’s Ordeal, continued

“
T his is the time set for trial in the matter of Martin versus Collins, et al.,
case number 97-770 civil. Is the plaintiff ready?”
Allen Porter felt his heartbeat accelerate as he rose from his chair. After
twenty years of trying cases, he had long ago conquered his youthful tendency
toward stage fright, but, even now, there was something about the beginning
of a federal court trial that shot a bolt of adrenaline into his gut. It would pass
quickly, though. He smiled reassuringly at Shannon, who was seated beside
him at the plaintiff’s counsel table—by tradition, the one nearest the jury box.
“Plaintiff is ready, your honor.”
Light years beyond ready, thought Shannon, as she regarded Judge Lewis
with a steady gaze. A year of paperwork, depositions, hassling with the ho-
tel’s lawyers, assembling evidence, and even then, it had taken another six
months of “procedural maneuvering”—Allen Porter’s words—to finally drag
the defendants into court for trial. What kind of system was this, anyway?
Allen Porter had warned her that getting everything ready for trial would
not be easy, but, at the time, buoyed by the judge’s decision denying the ho-
tel’s motion for summary judgment, she had optimistically assumed that the
worst was over. “How hard can it be?” she remembered asking Chuck
Fletcher. Chuck hadn’t answered.
GETTING TO TRIAL
How hard can it be? At the risk of repetition, litigation is a contest between ad-
versaries. Once trial begins, it is highly likely that, in a few days or weeks, there
is going to be a judgment for one side or the other. In a lawsuit, plaintiff is ask-
ing the court to take a positive action—usually, order the defendant to pay
plaintiff money. What defendant wants, however, is for the court to do noth-
ing—to leave things the way they are. One way for defendant to achieve this
goal is to win the case and get plaintiff’s claims dismissed. But often a perfectly
acceptable alternative is simply to drag the proceedings out for as long as pos-
sible. There can be no judgment for plaintiff as long as there is no judgment!
Barring a successful motion for summary judgment, there can be no judgment
as long as there is no trial.
OBTAINING A TRIAL SETTING

What, exactly, is a trial setting? What do you have when you have one? The an-
Putting It swers to these questions are not as simple as you might suppose.
Into Practice: Superficially, a trial setting consists of a minute entry specifying a date,
What would be the time, and place for trial. Ideally, the date would be firm and unchangeable, and
advantage of settling “on once the trial setting has been issued all parties could depend on going to trial
the courthouse steps” to as scheduled. Few if any courts operate that way, however. In practice, courts,
Shannon? What would be like airlines, nearly always “overbook” their reservations, and may schedule
the disadvantages? as many as a half dozen cases for trial at the same time before the same judge.
Otherwise, judges would be sitting around with nothing to do every time a
case settled “on the courthouse steps,” which occurs more often than not.
Moreover, there are plenty of ways in which a trial setting can be vacated
or postponed, even at the last moment. Attorneys, parties, witnesses, or even
the judge can get sick or injured. Attorneys can be ordered to trial at the same
time in other cases having a higher priority in the court system. Judges can be
CHAPTER 7 Road Map of a Lawsuit: Pretrial Practice, Trials, and Judgments 149
transferred to a different division, or retire, or take vacations. Surprise evi-

dence or witnesses can come to light at the last minute, requiring additional
preparation time. The trial that the judge is hearing just before yours can drag
on unexpectedly for a few extra days, wiping out your allotted time slot. A de-
fendant can file for bankruptcy, bringing all proceedings in any lawsuits in-
volving that defendant to a standstill. Judges can and do grant continuances
and vacate trial dates for all of these reasons and many others. In many courts,
it is a rare case that actually makes it to trial on the first setting.
So how does one obtain this minute entry designating a trial date, however
firm or unfirm it may be? The court issues it in response to some triggering
event, which varies from court to court. Some courts set cases for trial auto-
matically when the filed pleadings or discovery reach a certain stage, or do so Putting It
early in the case as a part of a scheduling order. In others, the triggering event Into Practice:
is the filing of a motion to set and certificate of readiness by any party. A mo- What rules govern the
tion to set is typically a one- or two-page printed form and informs the court setting of trials in your
how many trial days are needed, whether a jury trial is demanded, and any state?
other information that the calendar clerk needs in order to schedule the nec-
essary block of time.
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
PRETRIAL CONFERENCES, STATEMENTS, AND ORDERS

Modern court rules prescribe a series of procedural steps that must be com-
pleted before a trial can begin. The necessary steps vary considerably from
one jurisdiction to another—a check of the local court rules for the details is
indispensable.
These procedures are designed to ensure that the attorneys have fully pre-
pared their cases and honed the issues. The judge does not want to waste trial
time listening to attorneys argue about whether one of the exhibits was prop-
erly disclosed in discovery or whether some factual issue was fairly raised by
the pleadings. More and more, trials are carefully planned and choreographed
events, with every step carefully thought out in advance. Most judges have lit-
tle patience with unprepared attorneys who fumble around trying to “wing it.”
The main weapon used to enforce the requisite level of preparedness is,
depending on the court, the pretrial order or joint pretrial statement. (In this
chapter, we will use pretrial order to refer to either or both.) Regardless of
whether the rules of the particular court call for a pretrial order (signed by the
judge) or a joint pretrial statement (signed by the attorneys), the procedure
and content are essentially the same. The finished pretrial order or pretrial
statement is a filed court paper that will set out the exact boundaries of what
the attorneys can and cannot present at trial, in effect taking over the job of
the pleadings. The rules require the opposing attorneys—the attorneys who
will actually conduct the trial, not merely assistants—to meet and confer in
good faith and prepare this document together. (In practice, each side usually
prepares proposed drafts of their contributions, which they then mark up and
pass back and forth by fax until something resembling a finished product
emerges.) The deadline for submitting the joint pretrial statement or proposed
draft of the pretrial order depends on the court; in some, this document may
be required a number of weeks in advance, and in others not until a day or so
before trial.
Specifically, how does the pretrial statement or pretrial order set the
boundaries of what is allowed at trial? First, it sets out an agreed list of wit-
nesses and documents that can be used at trial. In most courts, the rules re-
quire that plaintiff and defendant furnish each other with a list naming every
witness that each may attempt to call to testify at trial. The parties must also
exchange copies of every document that they may wish to offer in evidence as
an exhibit. Typically, the deadline for this exchange of witness and exhibit lists
is set weeks or months in advance of trial, so the information necessary to in-
clude final lists in the pretrial statement should be readily available—at least
in theory.
This pretrial listing of documents saves a good deal of trial time, because
the rules require each party to specify in the pretrial statement any known ob-
jections to a particular exhibit. If a document is listed and no objections are
specified, that document will be admitted at trial without further debate. Of-
ten, a document may be technically objectionable—there may not be a wit-
ness handy to testify that the signature on a letter is authentic, for example,
even though everyone knows that the letter is authentic and can be proven au-
thentic by wasting half an hour dragging the person who wrote it as a witness
to testify, “Yes, I wrote this.” Judges have ways of getting even with attorneys
who are determined to stand on ceremony by raising trivial objections, so
there is a strong incentive to limit document objections to the important ones.
Next, the pretrial order includes lists of issues of fact and issues of law to
be decided at trial. These lists of issues must be written with care, because the
pretrial statement supersedes the pleadings at trial; the court may refuse to al-
low evidence that is outside the scope of the issues listed in the pretrial order.
The pretrial order is the end product of all the honing and shaping of issues—
Putting It all the responsive pleadings, motions for summary judgment, amended plead-
Into Practice: ings, legal research by both sides, discovery, investigation—it all comes to-
Who will prepare the gether here.
pretrial order or Naturally, the parties do not always agree on what the issues are, or how
statement in Shannon’s they should be worded, or whether a given document is admissible as an ex-
case? What information hibit. The pretrial order has separate sections in which each party can stake
will this order or out his or her own positions on any disputed issues. The rules encourage the
statement contain? What attorneys to compromise on such things to the extent reasonable, however,
will Allen Porter attempt and judges do not appreciate being handed proposed pretrial orders in which
to achieve as he prepares each party has insisted on his or her own wording of every issue, however triv-
this order/statement? ial. The goal is for the attorneys to cooperate in defining the issues in such a
way that the trial can concentrate on the questions that are seriously in dis-
pute; see FRCP, Rule 16.
Your Local Notes

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THE COUNTDOWN TO TRIAL

After the pretrial order has been hammered out, signed by the attorneys for
both sides, and filed with the court, the attorneys spend the last few days before
trial (often including evenings and weekends) pulling all the pieces together. Im-
portant direct testimony, that is, the testimony of one’s own, friendly witnesses,
should be scripted word for word, or nearly so, and rehearsed with the wit-
nesses—far better to be skewered by some surprise answer in the privacy of
one’s own office, than in open court in front of the jury. Cross-examination of op-
posing witnesses should be outlined, question by question. Opening and clos-
ing arguments should be written out or outlined, rehearsed in the presence of
others, and adjusted as needed. It is true that not all lawyers take such great
pains in every case—the expense is not always justified—but every well-tried
case is, to a great degree, scripted and rehearsed in advance.
Before the trial can begin, several items of unfinished business with the
judge must be resolved. These are usually handled on the day the trial is to be-
gin, or a day or two before.
Motions in Limine—When we think of trials, we inevitably think of lawyers

jumping to their feet making an impassioned objection to some bit of evidence.
Objections may be high drama, but once a prejudicial question has been asked
so that you can object to it, the cat may well be out of the bag. Questions about
whether the defendant has insurance, for example, are improper (with a few
exceptions), but once plaintiff’s lawyer asks the defendant if he has liability in-
surance, every juror is likely to assume that any verdict is going to come from
an insurance company, no matter how much the judge instructs the jury to dis-
regard the question. Believe it or not, the art of “wafting innuendo into the jury
box” via the intentional use of improper questions is a skill that many trial
lawyers deliberately cultivate, and one that is sometimes taught in seminars
on trial practice! Generally, the worst penalty to be expected is a scolding from
the judge, which is a small price to pay to get a crucial idea before the jury.
Lawyers preparing for trial can usually anticipate many of the “improper”
questions that their opponent will likely try to ask. Usually, all they have to do
is imagine which ones they would ask if they were representing their oppo-
nent’s client. Is there some way of seizing the initiative and, in effect, making
the objection before the question is asked, outside the hearing of the jury? Yes;
that is the purpose of a motion in limine.
A motion in limine asks the judge to rule in advance on the admissibility
of evidence. In our hypo, defendant’s attorney, Gail Stoddard, knows that
Chuck Fletcher took notes of his conversation with Arnie Trevayne in which
Arnie said that the hotel room doors are old and do not always close properly.
She knows that Arnie denied having said it at his deposition, and that Allen
Porter may call Chuck to the stand to have the notes admitted under FRE (Fed-
eral Rules of Evidence), Rule 803(1), to make Arnie look like a liar. She can cer-
tainly find enough case law to make at least some argument that Chuck’s tes-
timony and the notes are inadmissible, but if she waits to object until Porter
questions Chuck on the witness stand about the conversation, it will not mat-
ter how the judge rules—the damage may already have been done. Instead,
she can file a motion in limine, asking the judge to rule in advance that Chuck
not be permitted to testify or such inquiry to be made. If the judge rules in her
favor, he will prohibit Porter from mentioning or referring to the conversation
and the notes and will order Porter to instruct his witnesses not to do so ei-
ther. That is an order that Porter will obey—an attorney who deliberately de-
fies the judge’s order in limine is inviting a mistrial, jeopardizing his license to
practice law, and risking being jailed for contempt of court.
Motions in limine can also be used offensively, to confirm that a particular
piece of evidence is admissible. Suppose Gail Stoddard does not make a mo-
tion in limine to exclude the evidence, but Allen Porter is afraid the judge may
exclude the evidence if he tries to use it—after he sets up Arnie Trevayne for
the big bombshell, the judge may take away the bomb, leaving the lawyer look-
ing foolish. He can, if he wishes, file his own motion in limine asking the judge
for an advance ruling that the evidence is admissible. Then, if the judge denies
the motion, he can modify his cross-examination of Arnie accordingly.
Your Local Notes

Putting It
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Into Practice:
For what reason might __________________________________________________________________________
Allen Porter not want to
file a motion in limine
regarding the
admissibility of Arnie Proposed Jury Instructions—In the American court system, the jury is in
Trevayne’s conversation charge of deciding what the facts are—i.e., what happened—but it is the
even if he knows Gail judge’s job to say what the law is—i.e., what rules apply to the situation. Be-
Stoddard has not filed cause it is the jurors who will render the verdict, the judge must somehow
such a motion? communicate to the jurors the legal principles he wants them to apply.
How is this accomplished? Does the judge simply give the jury an off-the-
cuff lecture on, say, the law of negligence? Do the jurors get to ask questions
or take notes? Is there a textbook? A quiz afterward?
Not exactly. Imperfect though it may seem, the procedure is for the judge
to read formal instructions on the law to the jury. Then the jurors are on their
own; they do the best they can from the instructions given. In most courts,
the judge reads the jury instructions just before the jury retires to deliber-
ate. (Some courts are experimenting with the idea of instructing the jury on
undisputed, relevant issues of law at the start of trial, hoping that the jury
will then be better able to assess the evidence as it is presented.) The jury
instructions specify, in concise terms, the elements of each of the causes of
action to be submitted to the jury. (If the concept of causes of action is still
a bit fuzzy to you, please reread the sidebar “Elements of a Cause of Action”
in Chapter 3.)
The exact wording of jury instructions is very important, for a reason that
you might not guess. The reason has nothing to do with the effect on the jury.
Many trial lawyers think that jury instructions have rather little influence on
the decisions of jurors. If you have not won over the minds of the jurors by the
time jury instructions are read, your case is probably in trouble. Rather, the
importance of jury instructions is on appeal: If the court of appeals decides
that an instruction does not correctly explain the elements of the cause of ac-
tion to which it pertains, the case will likely be sent back for a new trial.
Trial judges, who are perfectly aware of the importance that courts of ap-
peals place on jury instructions, react by putting the burden on the attorneys
to get them right. Both sides are required to submit, in writing (and perhaps
also on a diskette to facilitate editing), any instructions they wish the judge to
give the jury. A party may not complain to the court of appeals about an in-
struction that was not given, if it was never requested.
The deadline for requesting jury instructions may be set by local rule or
may be up to the trial judge, but it is commonplace to require their submission
just prior to the start of trial. This gives the judge and the opposing attorneys
a chance to digest the proposals, and to do any last minute legal research re-
quired to get the wording exactly right. Then, after each side has put on its
case, but (usually) before closing arguments, the judge will hear arguments
Putting It and decide exactly what instructions will be read to the jury.
Into Practice: Even if the judge does not require jury instructions to be submitted before
What jury instructions do trial starts, wise trial lawyers nevertheless have them ready at that time. The
you anticipate Allen reason? The jury instructions are the final, definitive statement of the ele-
Porter and Gail Stoddard ments of plaintiff’s causes of action. Plaintiff’s attorney needs to be sure that
will disagree on? plaintiff’s evidence covers each required element; defendant’s attorney needs
to evaluate which are the weakest elements, the ones most vulnerable to at-
tack. Once the trial begins in earnest, the lawyers will be too busy to devote
much energy to honing their jury instructions.
Your Local Notes

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How do lawyers (or paralegals) come up with jury instructions? As with

most paperwork in litigation, they begin with what has already been done in
previous cases. In many jurisdictions, you can find a book of recommended
jury instructions published by the court, the state bar association, or some
other authoritative body, covering the most common causes of action: motor
vehicle negligence, breach of contract to pay a debt, and the like. These can
be modified as necessary to fit your particular case. For more esoteric causes
of action, try searching the Westlaw database using the phrase “jury instruc-
tion” and the name of the cause of action (or its digest topic number) as search
terms. This will likely turn up appellate opinions quoting and critiquing jury
instructions of the kind you are looking for.
Preparation of Exhibits—By the time the trial date arrives, the attorneys
should know precisely what documents each side may use as exhibits during
the trial. Many courts, as already noted, mandate an exchange of exhibits well
in advance of the trial date. Even in courts that do not require copies of ex-
hibits to be delivered to opponents as a matter of course, any competent liti-
gator automatically sends out a set of interrogatories and a request for pro-
duction of documents requiring the opposing party to identify and supply
copies of all trial exhibits. (In practice, particularly in cases involving massive
quantities of documents, corners tend to be cut in document discovery re-
sponses, so it may still be necessary for the attorneys to hash out the final ex-
hibit list at the last minute.)
How are these exhibits readied for use at trial? There are two important con-
siderations. The first is admissibility: The law of evidence imposes various re-
quirements, depending on the type of document and its source. At a minimum,
for example, all documents to be used as exhibits must be proven authentic;
that is, a witness must testify that the document is what it appears to be and not
a forgery. To save time, judges prefer that the attorneys stipulate to the admis-
sibility of all documents except those few that they have a serious basis to chal-
lenge, and it is common for the pretrial order to include such stipulations. The
point is that by the time the trial starts, each attorney (or the paralegal in charge
of the exhibits) should have checked off each individual document and made
sure that whatever is required to have it admitted in evidence—be it a stipula-
tion or a witness’s testimony—is in place and ready to be presented.
Your Local Notes

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The second consideration is the physical handling of the documents them-

selves. In times past, and even now in rural courts or in small cases, introduc-
tion of an exhibit at trial required a time-consuming ritual in which the docu-
ment would be first handed to the clerk for marking with an exhibit number,
then passed around for the opposing lawyer and perhaps the judge to examine,
and only then shown to the witness to be identified. In busy metropolitan court
systems, where the exhibits in many civil cases may number in the hundreds,
judges will likely require the attorneys to bring in their exhibits before the trial
starts, so that the clerk can mark them and list them in advance. Either way, all
exhibits—the physical documents that will actually be used at trial—must be
readied and organized so that each can be located quickly when needed in the
hectic atmosphere that may prevail in the courtroom during trial.
Your Local Notes

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Putting It
Into Practice: So much for the evidentiary exhibits—the documents that will actually
What evidentiary exhibits constitute a part of the evidence in the case. There remains the question of the
would you expect Allen assorted charts, diagrams, pictures, and blowups that have become so much a
Porter to introduce at part of the courtroom scene in the era of television. These visual aids—called
trial? If he asked you to demonstrative evidence—are not really evidence in the same way as the doc-
prepare these exhibits for uments that are used to help prove the facts of the case. They are employed to
trial, what would you do? make the facts easier for the jury to understand. Well-designed visual aids can
What demonstrative be quite compelling, but they take time to create, and the specialty graphic arts
evidence might Allen services required are not usually available within the law office. The trial at-
Porter use to build torney must plan in advance what demonstrative evidence will be needed, and
his case? the person responsible for making it happen—often a paralegal—must see that
all the pieces come together in time for the start of trial.
Your Local Notes

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“How’s it coming?” asked Allen Porter, eyeing the confusion of papers

strewn over the large conference room table as he closed the door and re-
moved his jacket. “Are we going to make it?”
Chuck Fletcher checked his watch. “We have until 5:00 P.M. to get the joint
pretrial statement over to the court. Two more hours. I just got off the phone
with Gail Stoddard’s secretary, and they’re supposed to be faxing their latest
version as we speak. The exhibit list is done, that was the hard part. Any word
from the court on the trial setting?”
“Still looks like a go. The judge is still tied up with that wrongful death case,
but they think at most it might drag out an extra day or two. They say we can
ride the calendar. Either way, they want the exhibits in and marked by Monday,
and we should be able to start trial by Wednesday at the latest. Oh, and the pro-
posed jury instructions—I’ve marked up your draft. Will you please check them
over, have them printed out in final, and make sure they get sent over to the
judge? I have to go to Tucson tomorrow for depositions in that divorce case.”
“No problem. I think we’re pretty much on schedule. Hard to believe it’s
been a year and a half, though.”

Many of the tasks involved in trial preparation are ideally suited for the talents
of paralegals. Obviously, it is the trial lawyer who will “choreograph” the trial,
deciding what evidence will be presented and in what order. But if it is the trial
lawyer who writes the script, it is often the paralegal who manages the stage,
in the sense of making sure that all the necessary “props” are present at the
right time.
This practical side of trial preparation requires well-developed organiza- Putting It
tional skills: the ability to make checklists and keep track of the myriad details Into Practice:
that must all come together at the start of trial. Suppose Allen Porter has
never used a paralegal’s
services. You are
T RY I N G THE CASE interviewing with him for
a job. Explain how you
could assist him in
The last week or so before a trial begins is a hectic time for trial lawyers and the preparing for trial.
paralegals, secretaries, and junior lawyers who work under their direction.
Working hours lengthen as the simplest tasks develop unforeseen complica-
tions, and at times it seems as though a platoon of lawyers working twenty-four
hours a day could not get the job done in time. Not every lawyer—or paralegal—
is cut out for the pressures of trial work!
During this time, in addition to preparing the witnesses, rehearsing the ar-
guments, and attending to all paperwork, the opposing lawyers are usually ne-
gotiating intensively in an effort to reach a settlement. The reason is simple: It
costs a great deal of money to try a civil suit—often in the thousands of dol-
lars per day for attorney fees alone. Better to spend the money on a settlement
that makes the case go away forever than to spend it on a trial that you might
lose (see sidebar below).
SIDEBAR
Meanwhile, Back at the Negotiating Table
Of all the civil lawsuits filed in federal court in a year, what percentage
would you guess eventually reach trial, and how many are settled before trial?
The answer for tort cases appears at the end of this sidebar.
To settle a case means that the parties agree to end their dispute. Usually,
the defendant agrees to pay plaintiff an agreed sum of money in return for
plaintiff voluntarily dismissing the suit. Parties are free to settle their cases at
any time if they can reach an agreement acceptable to all concerned.
If it surprises you that so many cases are settled, consider this: How much
would you guess that it costs to file an average, garden-variety civil suit, pre-
pare it for trial, and try the case? The answer naturally depends greatly on the
complexity of the case, the vigorousness of the defense, and the price of legal
talent in your locality, but you can probably buy a new luxury car for less than
the cost of even a relatively inexpensive lawsuit.
Given the broad factual outlines of a case, experienced litigators can usu-
ally estimate fairly accurately the probability of the plaintiff winning or losing
and the approximate range of the likely verdict if plaintiff does win. If both sides’
attorneys reach similar estimates of the probable outcome, it is far better to take
a shortcut to that outcome by settling than to spend huge sums litigating to
reach the same end result.
Experience teaches that cases most often settle either in the early stages, just
after the complaint is filed, or else at the time of trial. It is not a coincidence that
the filing of suit and the beginning of trial are the two times when parties are
most painfully aware that continuing the dispute is going to put a big dent in
both sides’ wallets.
(Answer: Of 96,284 tort cases filed in federal court in fiscal year 1996–97,
only 3,023, or 3 percent, ended in a trial and verdict.)
On the morning of the first day of trial, the judge begins by holding a con-
ference with the attorneys, probably in chambers. In part, this meeting is to tie
up any remaining loose ends, such as checking that all pending motions have
been decided, discussing the scheduling and order of presentation of wit-
nesses, going over the pretrial order, perhaps working on jury instructions.
Here, too, the judge has an opportunity to express any individual preferences
about the way the trial is to be conducted. Increasingly, judges also take ad-
vantage of the chance to twist the parties’ arms and encourage them to settle.
The formal commencement of trial occurs in the courtroom. A court re-
porter is present and, using a shorthand machine, will take down every word
spoken until the trial is over. The judge or the clerk calls the case by number,
and the judge asks first whether the plaintiff is ready; then whether defendant
is ready (both had better be!).
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JURY SELECTION
The first task in a jury trial is to select a jury. The procedure for accomplish-
ing this varies considerably from one court to another. The details often de-
pend in large part on the preferences of the individual judge, so referring to
the local rules of procedure may not yield many answers; it may be necessary
to also consult the judge’s staff. The broad outlines are these: First, a prede-
termined number of prospective jurors are sent into the courtroom; the num-
ber depends on the local customs and the type of case. These are ordinary cit-
izens who have been drawn at random from voter registration lists, driver’s
license records, or some other public source, and sent jury summonses or-
dering them to appear on this date for jury duty. Each prospective juror has
filled out a questionnaire; the resulting information, typically including such
things as education, occupation, and previous involvement with the court sys-
tem, is given to the attorneys.
The purported goal of jury selection is to start with a sizable panel of
prospective jurors who comprise a broad cross-section of typical citizens,
weed out those who the judge or the attorneys think may not be able to act
fairly and impartially, and end up with the required number of jurors to decide
the case. (How many? Traditionally, there were always twelve, but nowadays,
to cut costs and save time, more likely six or eight plus an alternate or two.)
The real goal of the attorneys is, of course, somewhat different: A trial attor-
ney wants a jury composed not of the fairest jurors, but of the ones most likely
to find in her client’s favor.
The first step in the weeding-out process is to ask the prospective jurors
questions about their backgrounds and about any feelings or beliefs they have
that may interfere with their ability to follow the judge’s instructions. This
questioning is called voir dire. There is considerable variation in voir dire cus-
toms from one court to another. In some courts, the attorneys must submit all
voir dire questions beforehand, and the judge addresses the questions to the
jurors; in others, attorneys are given great freedom to buttonhole individual
jurors and ask them pointed questions about their personal habits and preju-
dices. Where attorneys are allowed to conduct their own voir dire, part of the
strategy is to craft voir dire questions that are really thinly disguised argu-
ments designed to get a jump start on selling the jury on the merits of their
cases: “If the evidence shows that Banbury Park Hotel, by failing to maintain
the door locks properly, set in motion the chain of events that led to Shannon
Martin being injured, is there any reason why you could not vote to grant her
a substantial sum of money to fairly compensate her for those injuries?”
Your Local Notes

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Prospective jurors may be excused for any of a number of reasons. These

may involve personal problems, such as family duties or illness, making it un-
reasonably difficult for a juror to attend. (Usually, a fairly compelling story is
required, because judges become quite unreceptive to the usual excuses for
not serving after hearing them all a few hundred times.) Prospective jurors
who are relatives or close friends of any of the parties or attorneys, or who are
already familiar with the facts of the case, are also likely to be excused.
Jurors may also be excused “for cause.” This occurs when a prospective
juror says something, or reveals something about his background, that per-
suades the judge that the juror may be prone to base a decision on personal
beliefs or prejudices rather than on the evidence and the judge’s instructions.
In our hypo, for example, there may be a prospective juror who has strong re-
ligious beliefs against the use of violence (i.e., firearms) even in self-defense.
Such a person could not fairly decide the claims at issue between Dr. Collins
and Shannon and would be excused for cause.
Your Local Notes

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After voir dire is completed, each side is allowed a specified number of

peremptory challenges; that is, each side has a chance to strike some small
number of prospective jurors from the panel. Naturally, attorneys will use the
allotted strikes to remove the jurors they think are least likely to vote in the
desired way. No “cause” is needed when an attorney uses a peremptory chal-
lenge to strike a juror—the decision of which jurors to strike is based entirely
on the attorney’s best guess as to what sorts of people will least improve the
chances of winning. This guess may be based on almost anything, from as-
trology to psychology to personal experience. (There is only one significant re-
striction: peremptory challenges may not be used to exclude racial minorities
from jury panels.) Most attorneys rely mainly on the information furnished by
the jurors in their questionnaires and in their responses to voir dire questions,
and on their instincts about what sorts of people are likely to be receptive to Putting It
particular kinds of cases. Into Practice:
The end result of all this maneuvering is a panel of the required number of
What type of juror will
jurors, all of whom have managed to avoid being excused or stricken. These
Allen Porter be looking
people are sworn in as jurors and seated in the jury box. Jury selection has
for? What type of juror
consumed at least a substantial part of the first day (it can take much longer
will Gail Stoddard be
in highly publicized cases, where it is hard to find jurors who have not already
looking for?
heard all about the case from the news media). With jury selection completed,
the judge will take a recess, perhaps until the next day.
Your Local Notes

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SIDEBAR
Trials to the Court
Not all trials are jury trials. Plaintiff may fail to demand a jury trial in time;
both parties may agree that a jury is not needed; or the case may be of a kind
for which there is no right to a jury trial (i.e., divorce).
In a nonjury trial, the judge takes over the function of the jury and decides
both the factual issues and the legal issues. Naturally, there is no need for jury
selection. Nor will there be jury instructions. The lack of jury instructions poses
a potential problem: Without jury instructions, how will we know what rules of
law the judge used to decide the case? More to the point,how will we appeal if
the judge applied the wrong rules? The rules of procedure offer a solution: FRCP,
Rule 52(a), requires the judge in a nonjury case to make findings of fact and
conclusions of law. That is, the judge will sign a court paper listing each of the
factual and legal findings on which the judge’s decision is based. In practice, be-
fore announcing a decision, the judge will order both plaintiff and defendant to
submit proposed findings. The judge will adopt the proposed findings of the
winning party (perhaps with modifications).
Judges often relax the formal rules of evidence in nonjury cases. Juries are
(supposedly) not allowed even to see or hear evidence that is inadmissible. The
judge, however, presumably has the training and impartiality to be able to re-
sist being swayed by improper evidence. In nonjury trials, judges become cranky
when attorneys insist on wasting time by constantly jumping to their feet with
objections. For similar reasons, it is not uncommon for judges to “encourage”
Putting It the attorneys to skip making closing arguments in nonjury cases. The judge may
Into Practice: ask for a written argument instead.
Why do you think Allen In a jury trial, the verdict is the jury’s and is announced immediately after
Porter opted for a jury the jury finishes deliberating. In a nonjury trial, the verdict is up to the judge,
trial in Shannon’s case? and it is common for judges to take the matter under advisement and inform
the parties of the verdict by minute entry later—sometimes weeks later.
OPENING STATEMENTS
Next on the agenda are the opening statements. Each attorney makes what
amounts to a speech, giving the jury her client’s version of the facts. Plaintiff’s
attorney goes first; defendant’s attorney can reply immediately, or wait until it
is defendant’s turn to start calling witnesses.
This is not a time to present argument. Allen Porter may, in his opening
statement, describe the evidence he intends to present; he is free to read to
the jury from the complaint or answer; and he may tell the jurors what he will
be asking them for at the end of the case. He may not, however, launch into im-
passioned oratory about, say, how dangerous the world is for women travel-
ing alone—that sort of speech-making must be saved for closing argument.
Most attorneys use their opening statements simply to tell their client’s
story—which will hopefully be the same story that the evidence will tell—in
the most sympathetic and persuasive way possible.
Putting It
Your Local Notes
Into Practice:
Why do you think
__________________________________________________________________________
opening arguments are
__________________________________________________________________________ so vital to a successful
outcome?
Wednesday morning, 9:30 A.M. Allen Porter sat at the plaintiff’s counsel
table, immersed in his notes, oblivious to the activity around him. Chuck
Fletcher was bantering with Shannon about the Phoenix Suns, keeping her
distracted, making sure Allen could concentrate without interruption. At the
defendant’s table, Gail Stoddard was searching through a pile of documents
with one of her paralegals, while at the same time fielding questions from the
Park Hotels’ vice president who was here to speak for the corporation. The
door adjacent to the jury box opened, and the jurors followed the bailiff into
the courtroom and found their seats. In the gallery, spectators sat or stood in
small groups, conversing quietly.
“All rise.” Porter reluctantly put down his note pad as the judge entered.
The judge settled himself comfortably in his chair; it was going to be a long
morning. He turned to the jury. “Good morning, ladies and gentlemen. It is
now time for the opening statements. In their opening statements, each of the
attorneys will tell you what he or she believes the evidence will show. First,
plaintiff’s attorney, Mr. Porter, will speak to you; then Ms. Stoddard will speak
for defendant Park Hotels Group; finally, Mr. Yarborough will give you the
point of view of defendant Dr. Collins. I instruct you that opening statements
are not evidence, they are merely the attorneys’ explanations of what they ex-
pect to prove.” The judge turned to Allen Porter. “Mr. Porter, you may begin.”
“Thank you, Your Honor,” Allen Porter said, as he rose, picked up his
notepad, and strode confidently over to the lectern. Making eye contact with
as many of the jurors as possible, he began. “Ladies and gentlemen, here is
what the evidence will show: My client, Shannon Martin whom you see
seated here, was in Las Vegas for a series of business meetings. . . .”
What would you say to the jury in your opening statement if you repre-
sented Shannon? If you represented Dr. Collins? The hotel? Although parale-
gals do not ordinarily get to make opening statements in jury cases, an under-
standing of what is involved will allow you to help your supervising attorney
write, rehearse, and polish the opening statements to be given in the cases on
which you are assisting.
PRESENTATION OF EVIDENCE
Now comes the main event: the presentation of each side’s case. This is done
in turns, in the familiar, three-step pattern: plaintiff’s case is first, defendant’s
case is second, and finally plaintiff is given a chance to rebut defendant’s case.
What does a party’s “case” consist of? Witnesses. A trial consists of question-
ing witnesses, one after the other. Documents and other exhibits can of course
be used, but they are presented via the testimony of witnesses—the witness
identifies, describes, and reads from the document. An example of how docu-
ments are introduced appears in the trial transcript excerpt from our hypo
presented later in this chapter.
Plaintiff’s Case—After the opening statements, the judge instructs plain-

tiff’s attorney to call the first witness. The witness comes forward, is asked to
SIDEBAR
Links in a Chain
To understand the parties’ procedural objectives in a trial, you may find the
following metaphor instructive: Imagine that each of plaintiff’s theories of lia-
bility is a chain, which plaintiff will use to hoist the huge sum of money that
plaintiff hopes to win. To win the lawsuit, plaintiff must construct at least one
complete chain sufficiently strong to lift the load. Each chain has one link for
each element of that cause of action.
Thus, for a cause of action for negligence, there will be four links in the
chain: one labeled “duty,” one labeled “breach of duty,” one labeled “causa-
tion,” and one labeled “damages.” Plaintiff’s goal is to have a chain made of
those four links at the end of the trial. During plaintiff’s part of the trial, plain-
tiff must make each link by putting on at least some evidence supporting each
element. If plaintiff has not done so by the time plaintiff finishes putting on
witnesses—that is, if the chain is missing a link—then the judge will grant a
motion for a directed verdict, and plaintiff will lose then and there as to the
cause of action for negligence.
During defendant’s part of the trial, defendant will try to cut, or at least
weaken, plaintiff’s chain. If defendant can present enough evidence to cut even
one of the links, and plaintiff is unable to repair the damage, that chain is bro-
ken and plaintiff will lose (as to that cause of action—plaintiff may have other
chains, of course). After defendant has had a turn, plaintiff gets one more
chance to repair any links that defendant has managed to cut or weaken. This
is the final phase of trial, called rebuttal. During rebuttal, plaintiff cannot delve
into new areas—no new “links” are allowed during rebuttal—but plaintiff can
call witnesses to attack or contradict the evidence that defendant put on during
defendant’s case.
If at the end of the trial it is clear that plaintiff’s chain has all of its links, the
judge will grant a directed verdict for plaintiff; if it is clear that one or more links
has been cut, the judge will grant a directed verdict for defendant. Finally, if it
is uncertain whether all of the links in plaintiff’s chain have held up under de-
fendant’s attacks—that is, if reasonable jurors could disagree about whether the
evidence supports each of the elements of the cause of action—the judge will
submit the cause of action to the jury for decision. In an actual trial, of course,
there is usually more than one cause of action. In such a case, the judge will sim-
ply test plaintiff’s chains one cause of action at a time. For example, the judge
may direct a verdict on one cause of action and let another go to the jury for
decision.
In theory, the jury will test each of the links in the chain, and find for plain-
tiff if and only if the evidence supporting each link is more than fifty–fifty in
plaintiff’s favor. In practice, jury deliberations are seldom so analytical; once the
case is submitted to the jury, fairness and common sense are likely to play a more
important role.
take the familiar oath to “tell the truth, the whole truth, and nothing but the
truth,” and takes a seat on the witness stand to the side of the judge’s bench.
Plaintiff’s attorney examines (that is, questions) the witness first. Because
plaintiff’s attorney is examining a witness that he himself called to the stand,
this is direct examination. When plaintiff’s attorney finishes, defendant’s at-
torney has a turn. This is cross-examination: Because defendant’s attorney is
questioning a witness called by an opponent (and therefore presumed to be
antagonistic), different rules apply in cross-examination (see sidebar below).

If plaintiff’s attorney feels a need to shore up any of the damage inflicted by
his opponent’s cross-examination, he may conduct a redirect examination.
It is even possible, though rare, for the judge to allow the questioning to go
back and forth several times in a series of redirect and recross examinations;
see FRE, Rule 611.
SIDEBAR
Limitations on Scope
Scope refers to the subject matter covered during the examination. In direct
examination, an attorney is free to ask about any aspect of the case. In some
courts, however, cross-examination questions must be limited to the scope of the
direct examination. In other words, the cross-examining attorney may not ask
questions on subjects that the direct examination did not get into. Why? If the
scope of cross-examination were unlimited, as it is with direct examination,
there would be nothing to stop the defendant from putting on his entire case by
cross-examining plaintiff’s witnesses. The result would be both parties putting
on their cases simultaneously, one witness at a time, instead of the intended se-
quence of plaintiff’s case first, defendant’s case second.
Not all courts limit the scope of cross-examination. Almost all, however,
limit redirect examination to the subjects raised during cross-examination un-
less there is some compelling reason to do otherwise. Here, the purpose is to force
the attorney who calls the witness, to ask all the questions he has for that wit-
ness, all at once, rather than piecemeal.
Who decides which witnesses to call, and in what order? This part of the
trial belongs to plaintiff, so plaintiff’s attorney decides. Cooperative witnesses Putting It
will show up voluntarily; it is up to plaintiff’s attorney (or paralegal) to stay in Into Practice:
contact with them as the trial progresses and make sure that each witness ar- How would you as a
rives in time to testify when needed. Plaintiff can also call uncooperative or paralegal assist Allen
hostile witnesses. To do so, subpoenas are issued and served, ordering them Porter in working with
to appear at court. Plaintiff can even call the defendant as a witness; one not witnesses in Shannon’s
uncommon tactic is to call the defendant as the first witness, thereby depriv- case? Why might it be
ing defendant of the chance to listen to all of plaintiff’s witnesses and adjust important to educate
her story accordingly; see, however, FRE, Rule 611(a). those witnesses about
Before the questioning begins, either side may ask the judge to put wit- how to be effective
nesses “under the rule.” The judge will then order that all witnesses who are witnesses?
not parties to the suit must remain outside the courtroom and must refrain
from talking with anyone about the case, except while actually testifying. The
purpose is to preclude witnesses from being able to change their testimony in
response to what other witnesses are saying. The parties themselves are enti-
tled to remain in the courtroom during the entire trial; parties cannot be put
“under the rule.” Also, many judges allow each party to select one person, who
may also be a witness, to remain in the courtroom to assist the attorney dur-
ing trial; see FRE, Rule 615.
Plaintiff must, at a minimum, establish a prima facie case for each theory
of liability. A prima facie case means that at least some credible evidence has
been presented in support of each element of the cause of action in question.
(If you have forgotten exactly what the concept of “elements of a cause of ac-
tion” entails, please reread the sidebar on that subject in Chapter 3.) In terms
of the “links in a chain” metaphor (see sidebar), putting on a prima facie case
SIDEBAR
Putting It
Into Practice: Cross-Examination and Leading Questions
Why do you think
In a trial, there are two kinds of witnesses: plaintiff’s witnesses and defen-
witnesses are generally
dant’s witnesses. What do we mean when we say that a witness is “plaintiff’s” or
advised to keep their
“defendant’s”? Do we have to figure out which party the witness is rooting for to
answers short and to the
win the case? No, witnesses “belong” to the party who calls them. If plaintiff calls
point when being
a witness during plaintiff’s part of the trial, that person is plaintiff’s witness.
questioned?
What difference does it make? In general, a party may not cross-examine
his own witnesses. An exception is made only if the witness’s own answers
demonstrate hostility—then the judge may allow the witness to be treated as if
belonging to the opposing party. And, of course, if plaintiff calls the defendant
as a witness, plaintiff can treat her as adverse, and vice versa.
Cross-examination is different from direct examination. In direct examina-
tion, leading questions are forbidden. A leading question is a question that
tells the witness what answer the attorney wants to hear. “Didn’t you spend last
Saturday night at home watching television with your wife?” is a leading ques-
tion. The same question, rephrased so as not to be leading, would be “What did
you do last Saturday night?” In the leading version, it is really the attorney who
is telling the story, not the witness.
In cross-examination, leading questions are not only allowed, they are of-
ten essential. The purpose of direct examination is for the witness to tell his story
in his own words. The purpose of cross-examination is to test the witness’s cred-
ibility and truthfulness—in other words, to poke as many holes in his testimony
as possible. This is not done by giving the witness another opportunity to repeat
his story; it is best done by asking questions that must be answered with a “yes”
or a “no” and making sure that if the witness picks the wrong answer, you have
plenty of ammunition to discredit him.
A final word about cross-examination: Skillful, well-planned cross-examination
can be spectacular and fun to watch, but the thing that wins cases is skillful, well-
planned direct examination. Usually, you must win your case on the strength of your
own story, not the weaknesses in your opponent’s story. This is almost always true
if you represent the plaintiff, and true more often than not if you represent the
defendant.
means putting on at least some evidence establishing each of the links. That
is, the links need not necessarily be very strong to make a prima facie case, but
no link can be missing entirely.
“Halftime”—When plaintiff has called and examined all of her witnesses,

plaintiff’s attorney will announce to the judge that “plaintiff rests.” When a
party rests, it means that the party is finished putting on witnesses, and now
it will be the opposing party’s turn. Usually, judges require both sides to indi-
cate in advance what witnesses they will be calling and in what order, so the
participants know when to expect plaintiff to rest.
For plaintiff’s attorney, resting is a somewhat anxious event, because it
means that plaintiff has now taken her best shot, and plaintiff’s claims must
stand or fall on what has been presented. Once plaintiff rests, plaintiff is
through, and defendant is entitled to have the judge decide whether plaintiff
has put on at least some evidence supporting each of the elements of each
of plaintiff’s causes of action—that is, whether plaintiff has made a prima fa-
cie case for each cause of action. If defendant thinks that plaintiff has missed
putting on evidence in support of some element of one of the causes of ac-

tion for which plaintiff is suing, defendant may make a motion for a directed
verdict as to that cause of action. If the judge agrees with defendant, that Putting It
cause of action will be dismissed, and plaintiff will lose—as to that particu- Into Practice:
lar cause of action. Therefore, before resting, a wise plaintiff’s attorney re- What should the hotel do
flects carefully to be sure that each of plaintiff’s chains has all of its links; see if it thinks Shannon has
FRCP, Rule 50. failed to prove that the
hotel contributed, in any
Your Local Notes way, to her injuries? What
will be the consequence if
__________________________________________________________________________
the judge grants the
__________________________________________________________________________ defendant’s motion for a
directed verdict?
If there are motions to be heard, the jury will leave the room and return
when defendant is ready to begin calling witnesses. If not, defendant’s case
may begin immediately, or the judge may allow a recess to give defendant’s at-
torney a short time to prepare. Some plaintiff’s attorneys prefer to rest near
the end of the trial day, making it likely that defendant will not be able to be-
gin until the following day; then the jury will have the whole night for plaintiff’s
case to sink in, with no interference from defendant’s evidence. Most lawyers
like to time their presentations so that the last thing on the jurors’ minds at
the end of the day is some strong and favorable bit of evidence.
Excerpts from the reporter’s transcript of the trial in Martin v. Collins:
Direct examination of Shannon Martin:
Q. (By Mr. Porter) Now, before all of this happened, had you locked the
door to your room?
A. Yes.
Q. When and how did you do that?
A. Well, the doorknob was the kind that locks itself as long as you don’t
turn the button on the inside to unlock it, which I didn’t do. And when
I got back from dinner, I went into my room, and closed the door, and
I also checked to be sure it had locked.
Q. How did you do that?
A. I tried to turn the knob and it wouldn’t turn, and I pulled out on it, and
the door wouldn’t open. It was locked.
Q. Did you open the door at any time after you got back from dinner and
before you saw an intruder at the foot of your bed?
A. No. Not only that, I checked it again before I went to bed.
Q. How did you do that?
A. Same way, tried to turn the knob, tried to pull out on the knob. . . .
__________
Cross-examination of Shannon Martin:
Q. (By Ms. Stoddard) Now, you have already testified that you did not set
the chain, isn’t that right?
A. Yes, that’s right, because I—
Q. Are you aware that there was a printed notice attached to the inside
of the hotel room door?
A. Yes, I know there are some instructions, I think about putting your valu-
ables in the hotel safe, and—
Q. Did you read the notice?
A. As I recall, you know, I’ve certainly read those notices before. I don’t
necessarily read it every time I stay in a hotel. In my job, I was travel-
ing a lot, and—
Q. So you feel you are familiar with what the notice says?
A. Yes.
Q. Doesn’t the notice specifically instruct you to set the chain?
A. I’m not sure. Probably.
Q. Doesn’t it tell you to do that for your own safety?
A. I guess so.
Q. But you decided to ignore that advice?
A. As I said, I read somewhere that—
Q. Excuse me, Ms. Martin, my question is, you decided to ignore the spe-
cific instructions on the notice? Yes or no?
A. Well, I guess, yes. But—
Q. Thank you Ms. Martin. No further questions, Your Honor.
Direct examination of Dr. Arthur Collins:
Q. (By Mr. Porter) And then what happened?
A. I got out of the elevator on the fourth floor and went to my room, or
what I thought was my room.
Q. Was it your room?
A. No.
Q. Whose room was it?
A. It was Ms. Martin’s room.
Q. Did you intend to enter Ms. Martin’s room?
A. No, of course not. I thought it was my room. And, of course, the key
opened the door.
Q. Now, tell us exactly how you opened the door.
A. I put the key in the lock, turned the key to the right until the knob
started to turn, turned it some more to open the latch, then I pushed
the door open.
Q. Now, Doctor, this is very important, sir. Did the key turn the lock
within the knob, or did it merely turn the lock and the knob together?
Do you understand my question?
A. Yes, I think so. And the answer is, the lock turned first, about a quarter
turn, and then the whole thing turned. I remember that because the
first quarter turn, it turned easily, and then once the knob started to
turn, it was a lot harder to turn, as though the bolt was sticking. At that
point I had to use my other hand on the knob to get it to turn.
Q. Is it possible that the door was already slightly ajar, and that that’s how
you were able to open it?
A. No. I’m sure it wasn’t. As I said, the knob was hard to turn, and I had
to pull in on it and turn with my other hand to get it to open.
Q. Sir, you are aware, I believe, that the key the police found in the room
is not capable of turning the lock in the knob?
A. That’s what I’ve been told.
Q. Yet you have testified that the key you had did turn the lock in the
knob.
A. Yes, that’s right.

Q. Do you have any explanation of how that could be?
By Ms. Stoddard: Objection, calls for speculation.
Judge: Sustained.
Q. Was the key the hotel clerk gave you the same key the police found?
By Ms. Stoddard: Objection, lack of foundation. There’s been no showing
this witness has any firsthand knowledge about the key the police found.
Judge: Sustained.
Q. If someone switched the key before the police found it, would that ex-
plain it?
By Ms. Stoddard: Same objection.
Judge: Sustained. Move on, Mr. Porter.
Cross-examination of Dr. Collins
Q. (By Ms. Stoddard) Did you look at the number on the door, or the num-
ber on the key?
A. Actually, the keys don’t have the room number on them, I think they
do that in case a key gets stolen, so the thief won’t know which room
it fits.
Q. What about the number on the door?
A. I don’t recall. If I did, it didn’t register.
Q. Had you been drinking that night?
A. I had a cocktail before dinner, and a glass of wine with dinner.
Q. And when you returned to the hotel, at one-fifteen in the morning—
having had only one cocktail and one glass of wine—you somehow
mistook Miss Martin’s room for your own room?
A. Yes.
Q. Now, you are telling us that you remember specifically whether the key
turned the lock in the knob or just the whole knob, isn’t that right?
A. Yes.
Q. A relatively tiny detail in something that happened nearly two years
ago.
By Mr. Porter: Objection, argumentative.
Judge: Sustained.
Q. Do you have a good memory, Doctor?
A. Yes, I think so.
Q. And you are asking this jury to believe that your memory is so good
that you can be absolutely sure about whether the key turned the lock
in the knob, nearly two years ago?
A. I’m sure.
Q. Yet, on the night in question, isn’t it a fact you remembered your room
number wrong, which had been given you that same day?
A. Well, I wasn’t really going by the number. . . .
By Ms. Stoddard: No further questions.
Cross-examination of Arnold Trevayne
__________
Q. (By Mr. Porter) Isn’t it a fact, Mr. Trevayne, that what really hap-
pened was that when Dr. Collins came in around one-fifteen in the
morning, you gave him the wrong key, the key to Ms. Martin’s room,
number 407?
A. No. He had the right key. The key the police found is the right key.
Q. Is that so? Well, let’s explore that. Dr. Collins has testified that the key
you gave him turned the lock in the door to Ms. Martin’s room. Would
you agree with me that his testimony and your testimony can’t both be
true?
A. I don’t know if he’s lying or what, but I gave him the key to his own
room.
Q. Which room was that?
A. 409.
Q. Would you agree with me that, either what he said about the key turn-
ing the lock isn’t true, or else what you’re saying about giving him the
right key isn’t true? Has to be one or the other, doesn’t it?
A. I don’t know. Maybe she didn’t lock the door all the way. Maybe she
let him in.
Q. Maybe she let him in. Is that what you said? I want to be sure the jury
heard you right. Maybe she let him in?
A. Well, it could be, or maybe the door wasn’t completely closed.
Q. If Ms. Martin let Dr. Collins in, that would mean both she and he are
lying, wouldn’t it? Is that what you’re saying, that you think they’re
both lying?
By Ms. Stoddard: Objection, argumentative, calls for speculation.
Judge: Sustained.
Q. Are you aware of any facts, of your own personal knowledge, that
would show that Ms. Martin intentionally let Dr. Collins into her room?
A. No.
Q. Now, you also said maybe the door wasn’t completely closed. The
doors are spring-loaded, aren’t they, so if you let go of them, they close
by themselves?
A. Yes, they’re supposed to, but maybe it didn’t.
Q. Mr. Trevayne, do you recall me asking you the following question and
you giving me the following answer at your deposition: “Question: Is-
n’t it true that the doors are old, and they don’t always close all the
way? Answer: Not that I know of.” Was that your testimony at your
deposition?
A. Yes.
Q. Was that testimony true when you gave it?
A. Yes.
Q. Then, Mr. Trevayne, isn’t it a fact that you don’t have any reason to
think that the door wasn’t completely closed?
A. I don’t know.
Q. Are you aware of any facts, of your own personal knowledge, that
would show that the door might not have closed all the way?
A. I don’t know.
By Mr. Porter: Your Honor,—
Judge: That question can be answered yes or no, Mr. Trevayne. Either
you know of some facts, or you don’t. The witness is instructed to answer the
question.
A. I forgot the question.
Judge: Read back the question.
(The pending question is read.)
A. No.
Q. Ms. Martin has testified that the door to her room was locked, that she
checked it twice, tried to turn the knob, tried to pull the door open, and
it was locked. If the door hadn’t been closed completely, then when
she pulled on the knob it would have opened, wouldn’t it?
A. I guess.
Q. We don’t want you to guess, Mr. Trevayne. If the door hadn’t been
closed completely, then when she pulled on the knob it would have
opened, wouldn’t it?
A. It should.
Q. Now, Mr. Trevayne, let’s talk about what really happened that night:
You gave Dr. Collins the wrong key. When Ms. Martin came down to
the lobby and asked you to call the police, you realized your mistake.
Before the police got there, you went up to Ms. Martin’s room and
switched the keys to cover up your mistake. Isn’t that what really hap-
pened, Mr. Trevayne?
A. No. No. And if you’re going to accuse me—
Judge: That will do, Mr. Trevayne. Sit down. Sir, I said sit down.
Q. No, that isn’t what happened?
A. No.
Q. At your deposition, you testified that from the time you called 911 un-
til the police arrived, you remained at the front desk. Ms. Martin has
testified that right after you called 911, you left the front desk and were
gone for several minutes. Is it still your testimony that you remained
at the front desk the entire time?
A. Yes.
By Mr. Porter: Your Honor, may the witness be shown plaintiff’s exhibit 24?
(Plaintiff’s exhibit 24 is shown to the witness.)
Q. (By Mr. Porter) Mr. Trevayne, can you identify that document as a
computer printout generated by the telephone system at the Banbury
Park Hotel?
A. Yes.
Q. And it shows what telephone calls were placed or received at the ho-
tel between midnight and 6:00 A.M. on the same night as the incident
that we’ve been discussing?
A. It appears to.
By Mr. Porter: Your Honor, offer plaintiff’s exhibit 24.
Ms. Stoddard: No objection to its admission, but I reserve objections as to
relevance.
Judge: Plaintiff’s exhibit 24 is admitted in evidence.
Q. (By Mr. Porter) Now, Mr. Trevayne, I want you to take a look at that
printout, about twelve lines down from the top, the line beginning with
“01:15:37,” do you see that?
A. Yes.
Q. That shows your telephone call to 911, at 1:15 A.M. and 37 seconds,
does it not?
A. It looks like, the—yes.
Q. And it shows it being made from your extension at the front desk,
doesn’t it?
A. Yes.
Q. And the next line shows an incoming telephone call, doesn’t it?
A. Yes.
Q. About two minutes later, at 1:17 A.M. and 43 seconds, right?
A. Yes.
Q. And where does the printout show that call going to?
A. It looks like, to the voice mail.
Q. Isn’t it a fact, Mr. Trevayne, that incoming calls at that time of night go
first to the front desk, and then if they aren’t answered within six rings,
they go to the voice mail?
A. Yes. Probably I was busy.
Q. I see you have anticipated my next question. Probably you were busy,
that’s why you didn’t answer the phone at the front desk, after six
rings?
A. Well, you know, your client there, was pretty hysterical. . . .
Q. You were busy.
A. Yeah.
Q. You were busy switching the keys, weren’t you?
A. No.
Defendant’s Case—After plaintiff rests, it is defendant’s turn to call wit-

nesses. Naturally, plaintiff may cross-examine each witness when defendant
finishes asking questions.
Defendant may use either (or both) of two main strategies. The first is a di-
rect attack on some part of plaintiff’s evidence. Defendant’s task is, in some ways,
easier than plaintiff’s. Plaintiff must offer evidence establishing every single ele-
ment of a cause of action; defendant can succeed by knocking out just one ele-
ment of plaintiff’s case. It is not uncommon for defendants to choose the tactic
of mounting a strong attack on the weakest link in plaintiff’s chain, and letting the
rest of plaintiff’s case go by without much challenge. Moreover, defendant need
not actually disprove one element of plaintiff’s cause of action—the burden of
Putting It proof is on plaintiff (see sidebar). Defendant can win merely by casting enough
Into Practice: doubt on the evidence supporting one of the elements of plaintiff’s case, so that
plaintiff’s evidence will fall short of a preponderance of the evidence.
If you were Gail Stoddard,
Sometimes the burden of proof can be on defendant. If defendant raises an
what aspect of Shannon’s
affirmative defense, ordinarily defendant has the burden of establishing the
case would you focus on
defense by a preponderance of the evidence. Suppose, for example that Shan-
and why?
non proves Dr. Collins intended to throw himself on top of her, but Dr. Collins
argues that he did so in self-defense (to prevent her from shooting him again).
It happens that, under the substantive law pertaining to battery, self-defense
is an affirmative defense. Dr. Collins will have the burden of proving, by a pre-
ponderance of the evidence, each of the elements of self-defense.
SIDEBAR
Burden of Proof
Most people are familiar with the idea that, in a criminal case, the defen-
dant is entitled to be acquitted unless the government proves the defendant
guilty “beyond a reasonable doubt.” This is an example of the concept of bur-
den of proof. Notice that there are two dimensions to burden of proof:
(1) Who has the burden (in a criminal case, the government has it) and (2) how
high a level of proof is required.
In civil lawsuits, plaintiff has the burden of proof to establish all the ele-
ments of a cause of action. This is why plaintiff loses if one element is missing.
As for the level of proof, for most causes of action, plaintiff must establish each
element by a preponderance of the evidence. The preponderance of the ev-
idence test works like a balance scale. In our hypo, for example, suppose the jury
is trying to decide whether Dr. Collins intended to attack Shannon (intent is one Putting It
element of the cause of action for battery). We place all the evidence that tends
Into Practice:
to show that Dr. Collins did act with intent on one side of the scale. We place all
the evidence that tends to show that Dr. Collins did not intend to attack Shan- What is one of the
non on the other side of the scale. If the scale tips, even slightly, in the direction reasons Shannon pursued
of the evidence showing intent, Shannon has sustained her burden of proof as a civil cause of action
to the element of intent. If the scale tips the other way, or stays level, Shannon against Dr. Collins rather
has failed to sustain her burden of proof, and her cause of action for battery than attempt to persuade
fails. To put it another way, “preponderance of the evidence” requires Shannon the state to prosecute him
to put on enough evidence to persuade the jury that it is more probable than criminally?
not—i.e., there is greater than a fifty–fifty chance—that Dr. Collins acted with
intent.
Sometimes a higher burden of proof than “preponderance of the evidence”

applies, even in a civil suit. Proof of civil fraud, for example, often carries a bur-
den of clear and convincing evidence, which is greater than a preponderance
but less than the criminal standard of beyond a reasonable doubt. The burden
for proving the right to punitive damages may also be by clear and convincing
evidence. Putting It
Into Practice:
Your Local Notes How can you tell what
__________________________________________________________________________ the burden of proof is for
a given cause of action?
__________________________________________________________________________
An alternative strategy is for defendant to raise an affirmative defense. An

affirmative defense is some circumstance that allows defendant to win even af-
ter plaintiff has established each element of the cause of action in question. Of-
ten, affirmative defenses involve some legitimate excuse for doing whatever
defendant did. In our hypo, for example, Shannon can probably establish each
of the elements of a cause of action for battery against Dr. Collins—he inten-
tionally threw himself on top of her. However, self-defense is an affirmative de-
fense to the tort of battery, so if Dr. Collins can establish each of the elements
of self-defense, Shannon’s cause of action for battery will fail, even though she
has established each of the elements of battery. The law recognizes many af-
firmative defenses. Some of the common ones are listed in FRCP, Rule 8(c).
Some, like discharge in bankruptcy, can be raised against almost any cause of
action; most, like self-defense, apply only to certain specific theories of liabil-
ity. Which affirmative defenses apply to which causes of action is a matter of
substantive law.
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
Rebuttal—When defendant is through calling witnesses, defendant rests, and

plaintiff gets one last turn. This phase is called rebuttal. During rebuttal, plain-
tiff may call witnesses, and defendant may cross-examine each of them.
The scope of the evidence that plaintiff is allowed to present during re-
buttal is quite limited: It must directly rebut some item of evidence offered
during defendant’s part of the case. It would not be fair to allow plaintiff to
bring up new matters at this late stage, because defendant’s part of the trial
is over, and defendant will have no chance to give his side of the story. Natu-
Putting It rally, plaintiff’s attorneys are sometimes tempted to save some juicy bit of ev-
Into Practice: idence and try to sneak it in during rebuttal, so that defendant will have no
Why do you think chance to offer evidence to disprove it. This practice is referred to as sand-
plaintiffs are allowed bagging. Most judges vigorously enforce the restrictions on the scope of re-
rebuttal and defendants buttal, however, so it is generally risky to count on getting important evi-
are not? dence in during rebuttal.
More Motions—After rebuttal is over, the trial enters another housekeep-

ing phase, again outside the hearing of the jury. Both parties may now make
a motion for a directed verdict. In principle, the judge is always free to by-
pass the jury and render an immediate verdict, for either party, if the judge is
persuaded that the facts are so clear that no reasonable juror could reach a
different conclusion. Plaintiff is entitled to a directed verdict on any cause of
action if plaintiff has made out a prima facie case and defendant has not pre-
sented any credible evidence to rebut any of the elements of plaintiff’s cause
of action. Defendant is entitled to a directed verdict if defendant’s evidence
so clearly destroys one of the elements of plaintiff’s cause of action that no
reasonable juror could find otherwise. As a practical matter, directed ver-
dicts at the close of the evidence do not gain very much in terms of efficient
use of the court system—at most, some jury deliberating time will be saved.
On the other hand, if an appellate court disagrees with the judge, the entire
trial will have been wasted and the case will have to be tried again. There-
fore, most judges are cautious in the use of their power to grant a directed
verdict, and do so only in circumstances where the correct outcome is clear;
see FRCP, Rule 50.
Your Local Notes

__________________________________________________________________________
__________________________________________________________________________
This is also the time when the judge must make a final decision about what
instructions to give the jury, if that has not already been done. The attorneys
need to know the exact wording of the jury instructions in order to prepare
their closing arguments. Otherwise, attorneys run the risk that they might ar-
gue some point, only to have the judge instruct the jury to the contrary a few
minutes later. In all but the simplest cases, settling jury instructions usually re-
quires argument, and plenty of it, as the attorneys debate the case law per-
taining to the theories of liability involved in the trial. Plaintiff’s attorney wants Putting It
jury instructions that do not require proof of elements for which plaintiff’s ev- Into Practice:
idence is weak. Defendant’s goal is the opposite—the more elements plaintiff Some courts have
has to prove, the better. The wording of instructions is also a battleground. instituted written jury
The party with the best case—which may be either plaintiff or defendant—will instructions that are
prefer instructions that are clearly worded and easy to apply; the opposing approved by a special
party, on the other hand, will be perfectly happy for the judge to give instruc- judicial committee. Do
tions that are confusing and difficult to understand. you think plaintiff’s
attorneys or defendant’s
Your Local Notes attorneys would be most
supportive of this
__________________________________________________________________________
innovation?
__________________________________________________________________________
The exact procedure for settling jury instructions varies from court to
court. Generally, by this stage in the trial, each side has already submitted pro-
posed jury instructions, and each side has also submitted written objections
to the opponent’s proposals, or will at least make verbal objections on the
record. It is a general principle in the law that appeals courts are not interested
in listening to a party complain about trial court “errors” unless the party do-
ing the complaining pointed the errors out to the trial judge early enough that
they could have been corrected. Thus, if you think there is something wrong Putting It
with one of your opponent’s proposed jury instructions, you cannot keep Into Practice:
silent about it, hoping to use the defect to get the case reversed on appeal if Should an error that
you lose the trial. If you do not get your objection on the record before the jury seriously affects the
retires to deliberate, most courts of appeal will rule that the instruction outcome of the case, but
stands, erroneous or not. which no one notices until
after the jury has decided,
Closing Arguments—The closing argument is where the attorneys pull all be allowed to be objected
of the pieces of their cases together into, we hope, a coherent and persuasive to on appeal?
unit. Until now, most of the trial has been devoted to listening to witnesses,
one after the other. This results in a “piecemeal” presentation. Imagine what
your favorite movie would be like if the script were rearranged so that each ac-
tor appeared only once and spoke all of his or her lines for the whole movie—
it would be pretty hard to follow the plot! You would probably have to have
someone explain to you, afterward, exactly what was supposed to have hap-
pened, and that is exactly what closing argument is for in a trial. Some trial
lawyers like to describe the process this way: A trial is like a puzzle. In the ev-
identiary phase, we lay out all of the pieces, without being able to see exactly
how they go together. In the closing argument, we put all the pieces together
into a single picture.
Closing arguments are different from opening statements. In an opening
statement, the lawyers are limited to saying what the evidence will be. Closing
arguments are much less restricted, and attorneys may argue what they think
the evidence means. In addition to talking about the testimony presented dur-
ing the trial, they are free to draw inferences, to talk about common sense, to
bring up facts and ideas that everyone knows from experience, to argue about
what is good or bad for society, and—especially—to talk about what is the fair
and just outcome. In an opening statement, if an attorney begins to “argue”—
to stray much beyond the cold facts to be presented—the opposing attorney
will object and the judge will remind the offender to stick to the evidence. In a
closing argument, objections are considered the equivalent of belching in
church, and will be tolerated only if the arguer is clearly misrepresenting the
evidence on an important point. The assumption is that the jury knows that
this is argument, not evidence, and if one party’s reasoning is flawed, the other
Putting It is free to point out the flaws when it is her turn to argue.
Into Practice:
Do you think jurors are
more persuaded by Your Local Notes
opening statements or __________________________________________________________________________
closing arguments?
__________________________________________________________________________
Closing arguments follow the familiar three-step sequence: plaintiff first,

then defendant, then plaintiff again. Because plaintiff (generally) has the bur-
den of proof, plaintiff has the right to the first and last word to the jury.
Closing argument is important to you, as a paralegal, in several ways.
The most obvious is the need for “props.” In modern trial practice, charts,
pictures, and “blowups”—poster-sized enlargements of juicy excerpts from
document exhibits—are often indispensable as a way of explaining compli-
cated evidence. If an attorney reads a few sentences out of, say, a contract
to the jury, few jurors will follow and none will likely remember any of it an
hour later. If the attorney instead puts a huge blowup of the few sentences
on an easel in front of the jury while arguing (and, with luck, manages to
Putting It leave the blowup where the jury can still see it while the opposing attorney
Into Practice: is arguing!) the point is much more likely to be understood and remem-
What kind of visuals bered. Paralegals are often given responsibility for designing these “visuals”
would you design for use and having them made.
in Shannon’s case? The other great significance of closing argument is as a blueprint for the
rest of the case. Many trial lawyers believe that trial preparation should start
with the closing argument. First, figure out exactly what you want to argue to
the jury; then you will know what testimony and documents you need in order
to support that argument. (It isn’t quite that simple, of course. As you now
know, you also have to include enough evidence to avoid a directed verdict,
even if you do not intend to argue all of it to the jury.) If you understand how
closing arguments work, you will be much better equipped to make effective
judgments about the importance of the various bits of evidence that make up
the case. Mainly for this reason, even though paralegals generally do not ar-
gue before juries, we encourage you to try your hand at arguing, and we in-
clude an exercise for this purpose (see Procedural Ponderables 2 at the end of
the chapter).
Reading of Jury Instructions and Submission to Jury—After both sides

have finished their closing arguments, the judge instructs the jury. First, the
judge will read a series of jury instructions that are given in every civil suit—
instructions about how to deliberate, how to select a foreperson, how to reach
a verdict, and other housekeeping matters. Second, the judge will read the in-
structions on the rules of substantive law that the jury is to use in deciding the
case; by now, these should have been thoroughly researched and honed to
perfection.
In the federal courts, and in a few state courts, the judge is also allowed to
comment on the evidence. In practice, most federal judges use this privilege
sparingly and carefully. Refraining from commenting on the evidence is safe—
the judge is not required to do it, even in federal court, so keeping quiet can-
not cause a reversal on appeal. The wrong kinds of comments can result in a
reversible error. If the court of appeals perceives the judge’s comments as mis-
stating the evidence or as overly argumentative in favor of one side, the court
of appeals may send the case back for another trial.
The judge concludes the instructions by submitting the case to the jury
for deliberation. The jurors are given verdict forms on which to record their
decision, and sent off to the jury room. Putting It
Into Practice:
“They only deliberated for two hours, so that’s bad, isn’t it, Allen?” Shan-
non asked. “When the jury makes a decision quickly, it’s usually for the de- For what reasons do
fendant, isn’t it? Isn’t that what they said in the O. J. Simpson case?” judges make every effort
to avoid committing
Allen smiled. “I thought it was the other way around. Anyway, in my ex-
reversible errors?
perience, you can’t really guess what a jury will do. Let’s just wait and see
what they decided. The bailiff will be bringing them back in a few minutes;
then we’ll know.”
“I don’t know. I just have a bad feeling about this. It’s all kind of my word
against theirs, isn’t it? I mean, we didn’t really prove that they gave Dr. Collins
the wrong key.” Putting It
“It is your word against theirs, or actually your and Dr. Collins’s word Into Practice:
against the desk clerk’s. But that’s what it always comes down to in a trial. Do you agree with Allen
That is proof, or at least its the best proof you ever get. Think about it—if Porter’s statement that it
we had a photograph of him switching the keys, do you think the hotel is best to go to the jury
would have gone to trial on it? Of course not; they would have paid us off with one consistent
long ago.” theory of what happened,
“But we did have Chuck’s notes—at least that was some proof—” or do you think it would
have been better to argue
“Yes. The decision not to use them was a judgment call, and we’ll soon
both possibilities—that
see whether it was the right one. The problem with the notes were, in addi-
either the clerk switched
tion to showing Trevayne was a liar, it tended to prove that the door might
the keys or the door
not have closed. Right or wrong, we made the decision to go on the theory
didn’t close properly—
that the clerk switched the keys. If we then put in evidence that the door
and let the jury choose?
might not have closed properly, that undercuts our theory of what happened.
Assuming that the
Alternative theories of liability are okay at the pleading stage, but, in front
decision is to pick one
of a jury, at least in my experience, it’s better to pick your best explanation
version or the other,
of the facts and stick to it. And I think that making it a “swearing contest”
which would you pick and
with you and Dr. Collins on one side and Trevayne on the other was a pretty
why? Based only on the
good way to go.”
testimony in the trial
Deliberation and Verdict—The jury’s first task is to elect a foreperson; then transcript excerpts, how
the jurors discuss the case and try to arrive at a decision. In general, the mem- would you vote if you
bers of the jury decide how to accomplish this. There are very few restrictions, were on the jury?
and, as a practical matter, the jurors are free to decide the case in any way they
wish, taking as little or as much (within reason) time as they wish, based on
whatever reasons seem sufficient to them. In theory, there are a few cardinal
sins—using a coin toss or other game of chance to decide the case is one—
that, if proven, can lead to a finding of jury misconduct and a mistrial. In prac-
tice, if you lost the case because two of the jurors thought your opponent’s
lawyer had a better tailor, the bottom line is still that you lost the case.
This is definitely not rocket science. Lawyers often find it instructive to
talk to the jurors after a case is over, as a way of learning which tactics were
persuasive and which ones fell flat. We recommend that you attend such
“postmortems” whenever you are given the chance. More often than you
might expect, the lesson learned is that there are many factors beside the
law and the evidence that influence jurors. The wise lawyer (and paralegal)
does not fight this; instead, he learns how to identify and use these other fac-
tors. Among other things, experience teaches that many verdicts come down
to nothing more complicated than that the jury believed that some impor-
tant witness was lying to them. Lawyer demeanor is also important; a pro-
fessional appearance, good grooming, and a likeable, pleasant, and confident
attitude are usually helpful (although some lawyers manage to achieve suc-
cess without them).
In the vast majority of cases, only a general verdict will be called for; that
is, the jury will be asked merely to find for the plaintiff or defendant and, if the
verdict is for the plaintiff, to decide the amount of money to be awarded. If there
are multiple parties, there may be a need for separate verdicts as to each; for
example, in our hypo, the jury would need to render one verdict on Shannon’s
claims against the hotel, and another on her claims against Dr. Collins.
The federal rules also provide mechanisms whereby the judge can require
the jury to be more specific about what they are deciding. One is the special
verdict, consisting of written findings on particular issues of fact. In a battery
case, for example, the jury might be asked to render separate verdicts on
whether defendant made physical contact with the plaintiff; whether defen-
dant acted intentionally; whether plaintiff suffered damages; and whether the
damages were caused by defendant’s conduct. The judge would then decide
whether the specific facts found in the special verdict are enough to support
liability, and render judgment accordingly. Another procedure is to submit the
case for a general verdict with written interrogatories to the jury about spe-
cific facts on which the verdict depends. Here, the judge might ask the jury to
reach a general verdict, in the usual way, on whether defendant is liable to
plaintiff for battery and, in addition, to answer the question, “Did defendant in-
tend to make physical contact with plaintiff?” If the answers to any of the fac-
tual questions are inconsistent with the verdict, the judge can send the jury
back to try again or order a new trial.
Most judges try to avoid using these procedures, correctly seeing them
Putting It mainly as a way for one side or the other to plant the seeds of reversible er-
Into Practice: ror and set up an appeal. The judge’s power to use special verdicts or inter-
If given the opportunity, rogatories to the jury is discretionary—that is, the judge is not required to
should Allen Porter use them, but may do so if he wishes. Therefore, the court of appeals is very
request a special verdict? unlikely to send the case back for a new trial just because the judge used a
general verdict. If the judge uses special verdicts or jury interrogatories,
however, and the jury comes back with the wrong answers—inconsistent
findings, for example—the judge may have no choice but to order a new trial;
see FRCP, Rules 49 and 58.
What happens if the jurors cannot agree on a verdict? It depends on the
situation. In federal court, as well as in many state courts, a unanimous verdict
is required, so one determined holdout can cause a hung jury, a jury unable
to reach a verdict. Judges are never eager to waste time retrying cases, so a
deadlocked jury will likely be sent back several times with increasingly
adamant exhortations to come to some agreement. In many cases, the jurors
can negotiate with each other and reach some compromise—for example,
awarding a smaller amount of money in return for the holdout’s vote. If the
judge becomes convinced that there is no hope of breaking the deadlock, the
only option is to order a new trial with a new jury. In courts where the verdict
can be by a majority of the jurors, it is still possible to have a hung jury, be-
cause the majority required is almost always more than a simple majority. Nev-
ertheless, majority verdicts make hung juries much less likely, which is one of
the reasons why some states use them.
When the jurors reach a decision, they send word to the judge. Because no
one can predict how long it will take the jury to reach a decision, the judge and
the attorneys have likely gone back to their offices and moved on to other work.
The judge’s secretary notifies the attorneys that the jury has returned, every-
one returns to the courtroom, and the judge has the verdict read. Any party
then has the right to have the jury polled. Polling the jury consists of the judge
asking each juror, in open court, whether he or she agreed to the verdict. This
is supposed to provide a safeguard against coercion, giving any jurors who feel
they were pressured into a decision an opportunity to say so.
The trial is now over, all the participants leave, and the suit enters another
phase of procedural maneuvering.
GETTING FROM VERDICT

TO JUDGMENT
Shannon was elated. Three hundred seventy-five thousand dollars! That
would go a long way toward rebuilding her life and getting her shattered ca-
reer back on track. Of course, Allen Porter would get a third of it, plus all the
expenses, but even so. . . .
Allen Porter was talking to Gail Stoddard at the defense table; Shannon
could not hear what they were saying, but Gail’s expression was grim and de-
termined, and she kept shaking her head. After a few moments, Porter re-
turned and led Shannon out of the courtroom.
Shannon went straight to the question that was uppermost on her mind:
“So, how long before we get the money?”
Porter did not reply immediately. As they reached the elevators, he
turned to Shannon. “It may be quite a while. We’ll have to see. That was a big
verdict—Gail’s ego is stung right now, and I don’t detect much inclination on
her part to resolve this. But I’m hoping that after she has a chance to evalu-
ate the situation and go over it with her clients, they’ll decide not to drag
things out any further.”
“What does Gail’s ego have to do with it? We won—”
“We won the trial. We don’t have a judgment yet, and, right now, Gail is
saying that the verdict is obviously excessive, and that it’s inconsistent to find
the hotel negligent without also holding Dr. Collins liable, and she’ll think of
a few other, better arguments in plenty of time for her motion for a new trial.
And even when we do have a judgment, they can always appeal. But don’t
worry, this was a big win for us, and it should at least get them back to the
negotiating table. And if it doesn’t, we’ll just press ahead.”
The path to this point in the case has been long and arduous. We have
spent at least a year, and possibly several, in preparation; tens of thousands of
dollars in attorney time and costs have gone down the drain. Our client is ask-
ing “Are we there yet?”
Not by a long shot. What we have is a verdict—a jury decision. What we
need is a final judgment—an order of the court declaring that the opposing
party owes our client money. We face several potential hurdles before we can
get a judgment, and even then the opposing party may appeal. Remember, too,
that judgments are not self-executing. Once we get a judgment, we still have to
figure out how to collect the money!
The loser at trial has several possible procedural moves to choose from.
The first is a motion for a new trial. A motion for a new trial must be based on
some error committed during the trial. In effect, it is a way of short-circuiting
the appeal process when some mistake has been made that the judge knows
will lead the court of appeals to order a new trial. There is no point in wasting
everyone’s time and money on an appeal whose outcome is a foregone con-
clusion. It is better and cheaper for the trial judge to bite the bullet, acknowl-
edge the error, and retry the case. As you would expect, motions for a new trial
are hard to win. No judge wants to try the same case twice, so if the alleged er-
ror is reasonably debatable, the motion will be denied and the losing party can
then appeal; see FRCP, Rule 59.
Your Local Notes

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__________________________________________________________________________
A motion for a judgment notwithstanding the verdict (often called

judgment n.o.v., where the initials stand for the Latin non obiter verdictum)
is a request for the judge to disregard the jury’s decision completely and en-
ter judgment in favor of the party who lost the trial. Can the judge do this?
Yes, if the judge is persuaded that the jury reached a verdict that no “rea-
sonable person” could have arrived at from the evidence by following the
judge’s jury instructions. You may be wondering how any judge could have
the effrontery to declare, in effect, that an entire jury reached a decision
that no “reasonable person” could have made! In fact, judges do occasion-
ally grant motions for judgment n.o.v. The typical sequence of events is this:
One party moves for a directed verdict after both sides have finished their
evidence (that is, before the jury retires to deliberate). The judge may be in-
clined to grant the directed verdict. But if the judge does so, and the court
of appeals disagrees, the whole case will have to be retried. Having already
invested days or weeks in a jury trial, it usually makes more sense to go
ahead and let the jury render a verdict. If the jury decides in the same way
as the judge would have, the judge lets the jury verdict stand. If the jury
reaches the “wrong” decision, the judge grants a motion for judgment n.o.v.
Then, if the court of appeals decides that the judge should not have taken
the decision away from the jury, it can simply reinstate the jury verdict, and
Putting It a second trial is avoided. It is safer for the judge to deny the motion for di-
Into Practice: rected verdict and grant the motion for judgment n.o.v. after the verdict,
On what basis might Gail than it is to grant the motion for directed verdict, send the jurors home, and
Stoddard file both a risk reversal on appeal.
motion for a new trial Notice that motions for a new trial and motions for a judgment notwith-
and a motion for a standing the verdict are used in distinct situations: motions for a new trial are
judgment n.o.v.? used when the judge has made some mistake during the trial itself, such as al-
lowing evidence that should have been excluded; motions for judgment n.o.v.
are used when the claim is that the jury reached the wrong decision; see
FRCP, Rule 50.
Your Local Notes

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__________________________________________________________________________
Still another option available to a losing defendant is to ask for a remitti-

tur. Suppose the jury finds in favor of plaintiff and awards an unexpectedly
large amount of money for damages. If the defendant can persuade the judge
that the award is unreasonable and excessive, the judge has the power to let
the verdict stand and reduce the amount of the award. (Plaintiff can appeal,
of course.)
All of these procedural maneuvers occur relatively quickly after trial, if
at all. The deadline for a motion for judgment notwithstanding the verdict
is ten days after the verdict is entered. The deadline for filing a motion for
new trial in federal court is ten days after entry of judgment; see FRCP,
Rules 50 and 59.
Your Local Notes

Putting It
__________________________________________________________________________
Into Practice:
__________________________________________________________________________ If Allen Porter asked you
to lodge a form of
judgment in your
The event that formally ends the trial phase of the litigation is the entry of jurisdiction, how would
judgment. It is important to know exactly when a judgment is entered, because you do it?
various important deadlines—especially the deadline for filing an appeal—are
counted from the entry of judgment. In federal court, judgment is entered
when it is signed by the court and recorded in the clerk’s docket in accordance
with FRCP, Rule 79. In federal court, the clerk or the judge’s staff typically pre-
pares the actual piece of paper that the court will sign. In state courts, proce-
dures vary, and it may be up to the winning party to lodge a proposed form of
judgment with the court. To lodge a form of judgment means to prepare and
deliver the actual judgment that you want the judge to sign. Your instructor
will tell you the appropriate procedure for your locality; see FRCP, Rules 58
and 79.
Your Local Notes

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__________________________________________________________________________
A judgment is a court paper, with the usual caption. Depending on the

court and the type of judgment, it is signed either by the judge or by the clerk
of the court, not by the attorneys. Simple money judgments are short, typi-
cally a page or two long.
Skirmishes can arise over the contents of the judgment. With a garden-
variety judgment on a general verdict where there is only an award of money
damages, there is typically no basis to argue about the wording of the judg-
ment, and the judge will sign it immediately. Not all judgments are simple,
however. If an injunction is involved, or declaratory relief, or if the judgment
involves disposition of property as in a divorce case, the exact wording can
become quite important. Then there must be a procedure whereby the court
can hear argument about the form of judgment. Again, procedures for set-
tling the form of judgment vary with the locality.
Another potential battleground is the assessment of costs. The winning
party—plaintiff or defendant—is entitled to have judgment against the loser
for taxable court costs. Taxable costs do not include all expenses related to Putting It
the suit; there is a statute (in federal court, 28 U.S.C. 1920) or rule that lists the Into Practice:
categories of expenses that can be assessed against the losing party. Typically, Do you think losers in
the most expensive category of taxable costs is the court reporter fees for dep- litigation should have to
ositions; filing fees and process service fees are also taxable. Two of the great- pay their opponent’s
est expenses of litigating are generally not taxable: attorney’s fees and the fees attorney’s fees? Is there
of expert witnesses, both of which can add up to tens of thousands of dollars such a requirement in
even in relatively ordinary cases. your state?
Should the loser also have to pay the winner’s attorney’s fees? This is an
important question, because it is not at all unusual for the attorney’s fees to
add up to more than the amount of damages being sued for! In the American
system, the general rule is that each party must pay his or her own attorney.
There are many exceptions. Because most contracts written by lawyers include
an agreement that, in case of a dispute, the loser pays the attorney’s fees,
attorney’s fees are often awarded in breach of contract lawsuits. There are also
many statutes of recent vintage that create new causes of action (for such
Putting It things as consumer fraud, securities fraud, and the like) and that provide for an
Into Practice: award of attorney’s fees to the winner. In many courts, the judge has the power
Do you agree with the to award attorney’s fees if the judge feels that a party is deliberately abusing
long-standing tradition of the system; filing a frivolous lawsuit merely to harass the opposing party, for
having trial testimony example. Some advocates of reform believe that the laws should be changed to
manually recorded by a require the loser to pay the winner’s attorney’s fees in all cases. Such propos-
court reporter, limiting als are particularly popular with defense lawyers, because they expect (proba-
courts of appeals to bly correctly) that many fewer plaintiffs would sue if losing meant getting as-
review of the written sessed tens of thousands of dollars for the defendant’s attorney’s fees.
record? Would it be better How does the court determine the amount of costs to assess? The proce-
if trials were videotaped dure varies, but one way is for the winner to file a statement of costs, after
so that the court of which the loser can file written objections to any items deemed improper. At-
appeals could review torney’s fees are a different matter: Proceedings to determine the amount of
“live” testimony? attorney’s fees to be awarded can become quite complex and drawn out, pos-
sibly requiring evidentiary hearings as the parties argue the reasonableness of
various charges; see FRCP, Rules 54(d)(1) and (d)(2).
ETHICAL ETIQUETTE
I n preparing for trial you will be
talking with opposing parties and
witnesses on both sides. Both the
unrepresented parties if there is a
“reasonable possibility of being in
conflict with the interest” of their
Model Rules and Code prohibit client unless that advice is to secure
attorneys from discussing anything representation. As an agent of an
related to the issue being litigated with attorney you are subject to the same
any opposing party that is represented prohibition.
by counsel without the consent of that Part of your trial preparation
counsel unless they are expressly tasks will often involve helping
authorized by law. The purpose of this prepare witnesses for trial. Witnesses
prohibition is to prevent attorneys who know the questions they will be
from disrupting the relationship asked by the attorney calling them to
between client and attorney and the stand and who can anticipate the
thereby gaining an advantage over the types of questions opposing counsel
opposition. Attorneys may discuss will ask generally make more effective
issues unrelated to the matter in witnesses. You will want to advise
controversy. Therefore, if you receive them about how to dress, how to
a phone call from an opposing party conduct themselves on the stand, and
asking you a question relating to litiga- how to respond to certain tactics
tion, you must tell them you cannot commonly employed in cross-
talk to them without the permission of examination. You may also want to
their attorney. help them prepare by exposing them
You may talk with parties who are to a mock trial, asking them in advance
not represented; however, you should the questions they are most likely to
use caution. First, you must avoid be asked on the stand. Refrain,
giving legal advice (which constitutes however, from doing anything that
the unauthorized practice of law) and might encourage them to give false
thereby avoid committing a serious testimony or by overcoaching them to
ethical breach. Second, attorneys the point that their testimony appears
must avoid giving legal advice to staged and they lose credibility.
PRACTICE POINTERS
The practice of law is both a profession and a business. As such the gen-
eration of profits is essential to the success of any law practice (other than
government law offices, such as the county attorney’s office or federal district
attorney’s office). These profits arise out of the hours billed by each attorney
and legal assistant on staff. These so-called “billable hours” are the staple of
any law practice. Therefore, it is absolutely essential that every attorney and
legal assistant maintain an accurate record of the hours they have expended
working on each case to which they have been assigned.
Firms use a variety of procedures for recording time spent and many have
employed computerized timekeeping procedures. Regardless of the details,
however, every procedure requires you to maintain a record of the client for
whom you have done the work, the type of work you did (e.g., phone call, doc-
ument review, preparation of letter, travel, or research), the date you per-
formed the work, and the time you spent doing it. Not all work is considered
billable. For example, the time you spend learning how to perform a task that
is required to serve a client and that you should be expected to be able to per-
form as a reasonably competent legal assistant cannot be billed. For this rea-
son inexperienced legal assistants spend more time accomplishing the same
goal as a more experienced legal assistant but amass fewer billable hours.
Familiarize yourself immediately with the billing practice of your firm.
Some firms have minimum billing practices. Every phone call, for example,
may be billed as 0.1 or 0.2 hour even if the client does not answer and even if
the conversation actually takes less time. Every letter may be billed at a mini-
mum of 0.5 hour even if it is a form letter that can be completed in a few min-
utes. Other firms are less rigid in their billing practices but do require legal as-
sistants to log every hour expended and then review these records to
determine which hours will actually be billed for.
Learn the details of the billing practice in your firm and then routinely as-
sess your own billing rate. If in an eight-hour day, you are typically billing only
four hours, you need to reassess how you are using your time. If you are not
filling out your time slip immediately after you complete a task, you may be
forgetting the time you expended and may find yourself at the end of the day
unable to account for the time you spent.
Beyond the economic necessity of maintaining accurate records, the court
in some instances may need to be able to determine the amount of time spent
on a case. The awarding of attorney’s fees, for example, requires that the court
be able to review the amount of time spent in preparing a case to determine if
that amount of time falls within the realm of standard practice. Any time at-
torney’s fees become an issue, a law firm must be able to bolster its claims of
reasonableness by producing records of the time expended by each staff mem-
ber. Failure to keep accurate and consistent records may result in a loss of fees
to the firm. Furthermore, inability to justify fees to a client can result in a client
that not only resents the amount of monies being paid, but harbors such hos-
tility toward the firm that any future relations become impossible.
TECHNO TIP
The courtroom of the future is now in testimony can be read by the jury and
many jurisdictions. Some of the larger witness alike—at the same time. Various
court systems (including many federal programs are on the market to stream-
courts) have one or more courtrooms line the cataloging of documents and
set up for digital presentation of evi- allow indexing and cross-referencing of
dence. These courtrooms generally exhibits. The technologically proficient
have at least five, and sometimes more, legal assistant can become a huge asset
large screen computer monitors for to her employer and, at the same time,
viewing by the judge, witness, counsel, get to spend a good part of her time in
and jurors. In addition to exhibit books court, rather than the office, by devel-
for the jurors (where allowed) all the oping skills in this area.
participants in the trial (or hearing on a Currently the expense of purchas-
motion) can view the documents as ing and preparing equipment for a dig-
they are being discussed. Important ital courtroom precludes their use in
phrases or graphics (including pictures) more mundane (i.e., not high dollar)
can be highlighted to focus the atten- cases. As the use of scanners and trial
tion of the witness and the jury. Instead preparation software becomes less ex-
of fumbling through a stack of exhibits pensive and easier, the digital court-
at the clerk’s desk a mere press of a key- room will encompass more and more
board button can bring a contract, an trials. You will advance your career op-
expert’s report, a medical record, or a portunities considerably by being able
photograph to the screen. Deposition to take charge in this area.
S U M M A RY
Trial settings are not firm because judges usually schedule more cases for trial
than they can possibly handle, anticipating that most of them will settle before
going to trial and that other contingencies will arise that will result in delays.
Judges set trial dates after some triggering event. Some courts set dates after
the pleadings are filed or after discovery is at a certain stage, whereas others
set dates after a motion to set and certificate of readiness is filed. To help en-
sure that attorneys will be prepared to go to trial, courts prepare a pretrial or-
der or require the attorneys who will actually be going to trial to prepare a
joint pretrial statement, which sets forth the boundaries of what can and can-
not be presented at trial. The pretrial order or statement contains a list of the
witnesses and documents that will be presented at trial as well as a list of the
issues of fact and law that must be decided at trial. The rules generally require
attorneys to exchange names of witnesses and copies of documents months
before trial. Listing the documents saves trial time because any documents to
which an attorney does not object in the pretrial statement will be admitted at
trial. Judges encourage attorneys to compromise on issues as much as possi-
ble so that the trial can focus on the most serious issues in dispute.
Immediately before trial, witnesses are carefully prepared and cross-
examination questions as well as opening and closing arguments are out-
lined. Motions in limine must be submitted to the judge, thus establishing
the boundaries within which the attorneys must ask their questions. Jury in-
structions are prepared prior to trial. The exact wording of these instruc-
tions is important because of the potential importance this wording may
play on appeal. Trial exhibits must be marked by the clerk before or during
trial so that they can be located quickly. The authenticity of exhibits must be
established, although most pretrial orders contain stipulations of authentic-

ity except for those the attorneys plan to challenge. Demonstrative evidence
must be planned for well in advance of trial because the assistance of a
graphics service is frequently required. The organizational skills of legal as-
sistants are essential in making sure that all the elements of a trial come to-
gether before the “play” begins.
Most cases are settled before trial and on the first day of trial many judges
meet with the attorneys in their chambers to, among other things, try once
more to convince the attorneys to settle. If the trial moves forward, jurors are
selected through the process of voir dire. Some courts control the voir dire
process, while others allow the attorneys to ask the questions. Jurors may be
excused for personal reasons or “for cause.” The attorneys also have the op-
tion of striking jurors by using a specified number of peremptory challenges.
In nonjury trials jury selection and jury instructions are dispensed with,
but the judge must make findings of fact and conclusions of law. Typically the
judge requires both parties to submit proposed findings before the trial and
then adopts the findings of the winning party. In nonjury trials, judges com-
monly relax the formal rules of evidence and encourage attorneys to waive
closing arguments. Parties are usually informed of the judge’s verdict by
minute entry several days or weeks after the trial.
The trial opens as each side gives opening statements during which they
tell their client’s story. The plaintiff then presents evidence, followed by the
defendant, and concluding with the plaintiff, who is given an opportunity to
rebut the defendant’s case. This evidence is presented and rebutted through
direct examination, during which leading questions are prohibited, and
cross-examination, during which leading questions are essential. Attorneys
cannot cross-examine their own witnesses unless those witnesses are hos-
tile. Either side can ask that witnesses be placed “under the rule.” Some
courts limit the scope of cross-examination to areas that were covered on di-
rect examination; all courts limit redirect examination to the scope of cross-
examination.
After the plaintiff rests, the defendant can move for a directed verdict on
one or more claims if the defendant believes the plaintiff has failed to estab-
lish a prima facie case for those claims. The judge will allow a claim to go before
the jury if reasonable jurors could differ as to whether the evidence supported
the plaintiff’s claim. Judges are reluctant to enter directed verdicts unless the
outcome of the case is very clear.
The defendant then has the choice of attacking the plaintiff’s case or rais-
ing an affirmative defense. Because the plaintiff has the burden of proving each
element of her case by a preponderance of the evidence, the defendant need
go after only the weakest link in the plaintiff’s case to prevail. The defendant,
however, has the burden of proving an affirmative defense. The plaintiff has
the opportunity of rebuttal once the defendant has rested, but is restricted to
rebutting evidence that was brought in by the defendant. Introducing new ev-
idence at this point is called sandbagging and is vigorously opposed by judges.
Motions are generally made both when the plaintiff rests and when the defen-
dant rests. At the end of the case jury instructions are once again debated and
both parties are careful to get their objections to these instructions on the
record so they are preserved on appeal.
Attorneys pull all the pieces of their case together in the closing argu-
ments, where they are allowed to explain the evidence, to draw inferences, and
to talk about commonly accepted ideas and general principles, such as fair-
ness and justice. Objections are seldom made during closing arguments. Be-
cause closing arguments serve as a blueprint for the case, many trial attorneys
believe that trial preparation should begin with the outlining of closing argu-
ments. Legal assistants are often given the responsibility of preparing the vi-
suals used to explain complicated evidence during closing arguments.
Before the jury retires to deliberate, the judge reads them two sets of jury
instructions. The first is a set of general instructions that is used in every civil
case and the second is a set of specific instructions addressing the substan-
tive law to be applied in the case at hand. In federal courts and some state
courts, judges are permitted to comment on the evidence but few do because
of the possibility of committing reversible error.
Jurors are allowed to render their decision on almost any basis except a
coin toss or other game of chance. Juries usually give a general verdict al-
though judges have it within their discretion to order a special verdict or a
general verdict with written interrogatories. If a jury becomes deadlocked, re-
sulting in a hung jury, a judge must order a new trial. Hung juries are less likely
to result when a majority verdict is allowed. Once a verdict is entered, attor-
neys have the option of polling jurors. Attorneys are advised to talk to jurors
after trial to learn what entered into their decision-making process.
The loser has the option of filing a motion for a new trial, thereby circum-
venting the appeal process, or a motion for a judgment notwithstanding the
verdict, which allows the judge to disregard a jury decision the judge believes
is unreasonable. The defendant can also ask for a remittitur.
The trial phase formally ends with an entry of judgment. In federal courts
judgment is entered when it is recorded in the clerk’s docket but in some state
courts the winning party must lodge a proposed form of judgment with the
court. The form of judgment, the assessment of taxable costs, and the deter-
mination of attorney’s fees are potential sources of further disagreement. Tax-
able costs, for which the loser is liable, include court reporter, filing, and serv-
ice fees. Courts sometimes determine the assessable costs by reviewing a
statement of costs prepared by the winner. An ongoing philosophical as well
as personal debate is whether the loser should have to pay the winner’s at-
torney’s fees. Generally each party is required to pay its own fees although ex-
ceptions exist in cases involving contractual disputes or where state statutes
provide otherwise or where the judge feels that the losing party deliberately
abused the legal system.
KEY TERMS
Burden of proof Jury instructions Pretrial order

Closing argument Leading question Pretrial statement
Cross-examination Lodge Prima facie case
Demonstrative evidence Motion for a directed verdict Rebuttal
Direct examination Motion for a judgment notwith- Redirect examination
Discretionary standing the verdict (judg- Remittitur
Entry of judgment ment n.o.v.) Rests
Findings of fact and conclu- Motion for a new trial Scope
sions of law Motion in limine Settle
Form of judgment Motion to set and certificate of Special verdict
General verdict readiness Statement of costs
General verdict with written in- Opening statement Stipulate
terrogatories Peremptory challenge Taxable costs
Hostile witness Poll the jury Trial setting
Hung jury Preponderance of the evidence Voir dire
Workshop Alert
The following workshop correlates well with this chapter and you would be well advised to work with it.
Workshop 17 How to Prepare for Trial
REVIEW QUESTIONS
1. What is a trial setting? 13. What may a defendant do once the plaintiff
a. For what reasons are trial settings not con- rests? What happens after the plaintiff rests?
crete?
14. What are two strategies a defendant can use in
b. What prompts the setting of a trial date?
mounting a defense?
2. What is the purpose of a pretrial order or state- a. Why is the defendant not required to dis-
ment? What is contained in such an order or prove the plaintiff’s case?
statement? b. What is the burden of proof that a plaintiff
3. What is a motion in limine? What is the purpose must meet in a civil case?
of such a motion? c. Under what circumstances is the burden of
proof on the defendant?
4. Why do attorneys and judges work so hard at
15. What is the purpose of rebuttal? What limita-
crafting jury instructions? Why do most attor-
tions are placed on rebuttal?
neys prepare jury instructions prior to trial?
16. When is a plaintiff entitled to a directed verdict?
5. What are two important things to consider when
a. When is a defendant entitled to a directed
preparing evidentiary exhibits for trial? What is
verdict?
the purpose of demonstrative evidence?
b. Why are judges generally reluctant to grant
6. Why do negotiations reach a higher level of in- directed verdicts after all the evidence has
tensity immediately before trial? been presented?
7. What is the purpose of voir dire? What is the dif- 17. Why are jury instructions such a battleground
ference between a peremptory challenge and a for attorneys?
challenge for cause? 18. What is the purpose of closing arguments?
8. In what respects is it easier to try a case before a. How do they differ from opening statements?
a judge than before a jury? b. Why does the plaintiff get to speak twice
during closing arguments?
9. What does an attorney try to convey during
c. Why do many attorneys write their closing
opening statements? What limitations are
arguments first?
placed on opening statements?
19. Do judges have a right to comment on the evi-
10. If a plaintiff’s theory of liability is analogized to dence?
a chain, what must a plaintiff do to win a case?
a. What must the defendant do to win the case? 20. Why do attorneys often find it helpful to talk to
b. At what point in this chain is a plaintiff de- jurors after they render a verdict?
termined to have made a prima facie case? 21. What is the difference between a general ver-
11. How does the scope of cross-examination differ dict and a special verdict?
from the scope of direct examination? What is a a. What is a general verdict with written inter-
leading question and when is it allowed? rogatories?
b. Why do judges usually prefer general verdicts?
12. What is required of a witness who has been put
“under the rule”? 22. Why do judges do everything possible to avoid
hung juries?
23. Why might a party want to poll a jury? b. What conflicts can arise over the form of a
judgment?
24. On what basis might a party move for a new
trial? 27. What is the winning party entitled to in terms of
a. On what basis might a party move for a judg- costs of litigation?
ment notwithstanding the verdict? a. Do taxable costs include the expenses re-
b. What is the essential difference between a lated to suit?
motion for a new trial and motion for a judg- b. What is typically the most expensive cate-
ment n.o.v.? gory of taxable costs?
c. Are attorney’s fees and expert witness fees
25. On what grounds might a defendant ask for a re- considered taxable costs?
mittitur? d. Is the loser in litigation required to pay the
26. What event formally ends the trial? winner’s attorney’s fees?
a. Why is it important to know when a judg-
ment is entered?
PRACTICE EXAM
1. Trial settings are usually not firm because d. cannot be used offensively.
a. new evidence is discovered and the parties 5. Jury instructions
ask for a continuance. a. are important because of the influence they
b. parties or witnesses get sick or judges are have on jurors.
moved to other divisions. b. are prepared by attorneys on both sides and
c. judges overschedule cases. jurors are given both sets of instructions.
d. all of the above. c. can be an important basis of appeal.
2. A trial date can be set d. summarize the facts of the case.
a. any time a court feels like setting it. 6. Trial exhibits
b. after some triggering event, such as one of a. must be authenticated.
the parties filing a motion to set. b. must always be marked by the clerk prior to
c. when one of the parties request a date be set. trial.
d. none of the above. c. only need to be authenticated when there
3. A pretrial order has been a stipulation.
a. includes only a list of witnesses and docu- d. do not need to be brought to the attention of
ments that will be used at trial. opposing counsel.
b. includes only a list of issues of fact and law 7. Jurors are selected from
to be decided at trial. a. driver’s license records.
c. includes a list of witnesses and documents b. voter registration lists.
that will be used at trial and a list of issues of c. a source of public records.
fact and law that will be decided at trial. d. all of the above.
d. has nothing to do with any of the above.
8. A juror may be excused or struck
4. A motion in limine
a. for “cause.”
a. is appropriate to make only during the trial. b. for personal reasons.
b. prevents attorneys from getting “improper” c. because the attorney does not feel the juror
questions before a jury. will be sympathetic to his client.
c. occurs spontaneously during trial. d. all of the above.
9. A nonjury trial occurs when c. talk about fairness and justice.

a. the issue being litigated is personal injury. d. all of the above.
b. the plaintiff fails to request a jury in a timely 14. Jurors
manner.
a. are allowed to base their decision on any-
c. one of the parties decides that a jury is not
thing, including a coin toss.
needed.
b. must conform to specific restricted guide-
lines in reaching a decision.
10. During opening statements attorneys typically c. can reach a verdict based on their like or dis-
a. tell their client’s story. like of one of the attorneys.
b. give impassioned speeches relating to the d. cannot be questioned by the attorneys after
theme of their case. they have rendered their decision.
c. describe the evidence that has been pre- 15. After the jury’s verdict is rendered
sented. a. a plaintiff can move for a judgment n.o.v.
d. none of the above. b. a defendant can move for a directed verdict.
11. At the close of evidence a judge could c. a plaintiff should ask for a remittitur.
a. direct a verdict for the plaintiff but not for d. none of the above.
the defendant. 16. The entry of judgment
b. direct a verdict for the defendant if the plain- a. is important only to the clerk’s office.
tiff clearly failed to prove her case.
b. occurs in federal court when the verdict is
c. not direct a verdict on one claim and allow
rendered.
the jury to decide another claim.
c. is the formal end of the trial.
d. determines when a directed verdict can be
12. A defendant can prevail requested.
a. only by proving an affirmative defense using 17. Taxable costs include
clear and convincing evidence.
a. attorney’s fees.
b. by attacking one element of the plaintiff’s
b. expert witness fees.
case.
c. court reporter fees.
c. only if the plaintiff fails to prove each ele-
ment of his case.
13. In closing arguments the attorneys can
a. draw inferences.
b. explain what the evidence means.
FILL IN THE BLANKS

18. A _______________ is a minute entry specifying 21. To ensure that opposing counsel will not ask
the time, date, and place for trial. an objectionable question at trial, an attorney can
19. One way courts help ensure that attorneys are in effect make an objection in advance by filing a
ready to go to trial is to prepare a motion _______________ .
_______________ , which sets forth the limits of 22. _______________ are directed toward the jury
what attorneys can and cannot present at trial. and specify in concise terms the elements of each
20. A motion to _______________ can be filed by cause of action a jury is considering.
any party and informs the court how many trial 23. Visual aids that are used at trial to help jurors
days will be necessary and whether a jury will be understand facts or concepts are called
needed. _______________ evidence.
24. The purpose of _______________ is to weed out 36. Most juries are asked to render a
prospective jurors whom the attorneys or judge _______________ verdict, deciding only whether
feels may not be able to act impartially. the plaintiff or defendant prevailed, but in some
25. An attorney can use a _______________ to strike courts the judge requires the jury to make written
a juror that she believes will vote against her client. findings on particular issues of fact by rendering a
26. A judge in a nonjury case is required to make _______________ verdict.
_______________ and _______________ . 37. If a judge requires a jury to reach a
27. The trial opens with the plaintiff giving _______________ , the judge can send the case back
_______________ , which is the plaintiff’s version of to the jury if its verdict is inconsistent with its
the facts. answers to any of the factual questions.
28. Failure to establish a _______________ case for 38. A jury that is unable to reach a decision is
a claim in a plaintiff’s cause of action could result called a _______________ .
in the judge granting a motion for a 39. Attorneys have the right to ________________
_______________ on that claim. to find out if each juror agreed to the verdict.
29. The examination of one’s own witness is called 40. The loser at trial can move for a
_______________ examination; the examination of _______________ , based on an allegation that an
the opponent’s witnesses is called error was committed during the trial, or can move
_______________-examination. for a _______________ , asking the judge to
30. A plaintiff can subpoena a _______________ disregard the jury’s decision.
witness who refuses to testify voluntarily. 41. A defendant that believes an award is
31. A witness who is placed _______________ must excessive can ask for a _______________ .
remain outside the courtroom when not testifying 42. The deadline for filing an appeal is counted
and must not discuss the case with anyone. from the _______________ , the formal end of the
32. _______________ questions are not allowed on trial phase of litigation.
direct examination but are essential to cross- 43. In state courts the winning party may be
examination. required to _______________ a proposed form of
33. A plaintiff has the burden of proving each judgment with the court.
element of his case by a _______________ . 44. The winner of a lawsuit is often asked to file a
34. An attorney that sneaks in new evidence _______________ , from which the court can
during rebuttal is said to be _______________ . determine the costs to assess.
35. All the puzzle pieces of the trial come together
when the attorneys give their _______________ .
TRUE OR FALSE
45. Pretrial statements do not need to be prepared 61. Demonstrative evidence is not really evidence
by the attorneys who will actually be going to in that it is not used to prove the facts of a case.
trial. T F T F
46. Pretrial statements are prepared by the court, 62. Once the trial date is near, attorneys usually
not the attorneys. T F quit engaging in any efforts to negotiate a set-
tlement. T F
47. Witness and exhibit lists are usually exchanged
by attorneys months before trial. T F 63. Most cases are settled before going to trial.
T F
48. Submitting document lists in advance of trial
saves time because any document that is not 64. On the first day of trial the attorneys meet in the
objected to will be admitted at trial. T F judge’s chambers and the judge often takes ad-
vantage of this time to once more encourage
49. A pretrial order is the end product of all the
the parties to settle. T F
work that goes into shaping the legal issues of
a case. T F 65. Local rules dictate the details of jury selection.
T F
50. The goal of pretrial statements is to have attor-
neys stake out each and every issue as to how 66. Juries always consists of twelve members.
they would ideally like to have that issue T F
phrased. T F
67. The real goal of jury selection is to find a jury of
51. Attorneys can avoid permitting opposing coun- the fairest jurors. T F
sel from planting ideas in the jury’s mind
through the use of prejudicial questions by fil- 68. Voir dire questions are always asked by the
ing motions in limine during the trial. T F judge. T F
52. It is the jury’s job to decide what the facts are, 69. No cause is needed to use a peremptory chal-
but it is the judge’s job to say what the law is. lenge to strike a prospective juror. T F
T F 70. Peremptory challenges cannot be used to ex-
53. Jury instructions are always read at the begin- clude racial minorities from a jury. T F
ning of the trial. T F 71. Judges still adhere to the formal rules of evi-
54. The exact wording of jury instructions is very dence in nonjury trials. T F
important. T F 72. In nonjury trials verdicts are usually rendered
55. A party may not complain about a jury instruc- immediately following closing arguments.
tion that was not given if the party did not re- T F
quest the instruction. T F 73. Attorneys present their arguments during an
56. Jury instructions do not need to be prepared opening statement. T F
until after trial. T F 74. In a civil action the plaintiff presents evidence
57. Most jurisdictions have a book of recom- first and then has an opportunity to offer re-
mended jury instructions. T F buttal evidence after the defendant presents
evidence. T F
58. Attorneys usually stipulate in pretrial orders to
the authenticity of exhibits unless they have a 75. During rebuttal a plaintiff cannot introduce new
serious basis for challenging that authenticity. evidence. T F
T F 76. All courts limit the scope of cross-examination
59. The basis for establishing the authenticity of to subjects raised during cross-examination.
each exhibit to be presented at trial should be T F
determined before trial. T F 77. An attorney has the right to cross-examine his
60. In all courts the clerk marks exhibits during own witnesses. T F
trial. T F
78. Leading questions are allowed on cross- 94. The decision to submit a special verdict lies
examination because the purpose of cross- within the discretion of the parties. T F
examination is to test the credibility and
truthfulness of the witness. T F 95. Judges usually make every effort to get dead-
locked juries to reach agreement. T F
79. Most cases are won on the strength of cross-
examination. T F 96. If a jury is hopelessly deadlocked a judge has
no option other than to order a new trial.
80. The defendant cannot move for a directed ver- T F
dict until the plaintiff has rested. T F
97. Hung juries are less likely when a majority vote
81. A plaintiff has sustained her burden of proof if is allowed. T F
she can show there is a fifty–fifty probability
98. A case is finally over when the verdict is en-
each element in her case is supported by the
tered. T F
evidence. T F
99. Judgments are self-executing. T F
82. A defendant has the burden of proving an af-
firmative defense. T F 100. Granting a motion for a new trial is a judge’s
83. Judges are reluctant to grant a directed ver- way of circumventing the appeal process.
dict. T F T F
84. The party with the worst case generally 101. Motions for a new trial are hard to win. T F
prefers clearly worded, easy-to-apply jury in- 102. A judge can grant a motion for judgment n.o.v.
structions. T F only if he decides that no reasonable person
85. Most appellate courts will allow jury instruc- could have reached the jury’s decision based
tions to stand if the party objecting to them on the evidence presented. T F
does not get its objections on the record be- 103. Parties have several months in which to file
fore the jury begins to deliberate. T F motions for a new trial and motions for judg-
86. Closing arguments are more restricted than ment n.o.v. T F
opening statements. T F 104. A judgment is entered in federal court when it
87. Judges frequently uphold objections made is recorded in the clerk’s docket. T F
during closing arguments. T F 105. Knowing exactly when a judgment has been
88. The defendant makes the final closing argu- entered is irrelevant for litigation purposes.
ment. T F T F
89. Many trial attorneys believe that trial prepara- 106. Judgments are signed by the attorneys. T F
tion should begin with the closing arguments. 107. In some cases the form of judgment is very im-
T F portant. T F
90. Legal assistants often prepare the visuals used 108. Taxable costs do not include all expenses re-
during closing arguments. T F lated to a lawsuit. T F
91. Judges give two sets of jury instructions: gen- 109. It is not unusual for the attorney’s fees to add
eral instructions that are given in every civil up to more than the amount of damages being
suit and specific instructions regarding the sued for. T F
substantive law to be applied in the case at
hand. T F 110. In the American legal system each party is re-
quired to pay its own attorney’s fees. T F
92. Judges can never comment on the evidence.
T F 111. Attorney’s fees are determined via the state-
ment of costs. T F
93. Judges frequently use special verdicts. T F
LITIGATION LINGO
Read the description and provide the word that matches that description.
WHAT’S MY NAME?
1. The defendant must prove me if he raises me.
2. I am a visual aid and other kinds of evidence that help clarify the facts for the jury.
3. I am what an attorney makes at the beginning of trial to set the stage.
4. I am prepared by the judge and set forth the parameters of what attorneys can and cannot present at
trial.
5. I am a motion prepared by the parties that informs the judge about how many days are needed for trial
and whether a jury will be needed.
6. I am the plaintiff’s response to the defendant’s case.
7. I am a pretrial motion that prevents the opposition from asking prejudicial questions at trial.
8. I am the process that is used to weed out undesirable jurors.
9. I am the event that signals the end of the trial phase of litigation.
10. I am a motion the defense can make when the plaintiff rests.
11. I can be used to eliminate an undesirable juror without cause.
12. I allow an attorney to pull all the pieces of the trial together.
13. I am what a judge is required to make when rendering her decision in a nonjury trial.
14. I am what the losing party has to pay, including court reporter, filing, and service fees.
15. I am the process that is used to question opposing witnesses.
16. I am an uncooperative witness.
17. I am the exact wording of a judgment.
18. I am what a plaintiff must establish to avoid a directed verdict.
19. I am what a jury renders if they are asked to make special findings of fact.
20. I am a deadlocked jury.
21. I am a question that tells the witness the answer the attorney wants to hear.
22. I am the amount of proof the plaintiff must establish in a civil suit.
23. I am a motion made by the losing party that wants the judge to disregard the jury’s decision because it
is unreasonable in light of the evidence presented.
24. I am rendered by the jury when it is asked to make a decision about the outcome of the case as well as
answer specific questions in reference to the facts.
25. I am a request by the defendant to reduce an excessive damage award.
26. I am what an attorney does to make sure that each juror agrees with the verdict.
the question.
1. How would you go about setting a trial date if judge be required to prepare a findings of
you were planning to sue your cousin who did fact and conclusions of law?
not pay you what you were owed? f. Will you be able to get a special verdict?
a. Would you be required to prepare a pretrial 3. What must the karate instructor do if he wants
statement or a draft of a pretrial order? to move for a directed verdict?
i. When would this document be due? a. What must he show?
ii. What would you have to include in this
b. What must he do if he wants a new trial?
document?
What time frame does he have to do this?
b. On what areas of law would you need jury in- c. What must he do if he wants the judge to
structions? change the jury’s verdict? What time frame
i. When would you have to submit pro- does he have to do this?
posed jury instructions to the judge? d. What must he do if he wants the judge to re-
ii. Where would you look to find jury induce the damages awarded by the jury?
structions in this case?
c. Would you be required to provide copies of 4. Suppose you prevail in your suit against the
any exhibits you plan to use at trial? shoddy contractor.
i. If so, when would you have to provide a. What must you do to enter a judgment?
these? b. Within what time limit must the defendant
ii. How would you determine how to estab- file an appeal?
lish the authenticity of each exhibit? c. How is the form of judgment determined?
iii. Will these documents need to be marked d. What are the taxable costs for which the
in advance of trial? contractor will be liable?
2. Suppose you are unable to settle the case in- e. How will attorney’s fees be determined?
volving you and the drunk driver and you end 5. Suppose you are preparing a witness to testify
up going to trial. in the suit against your tenant. Consult the
a. What kinds of jurors would you like to have? rules of evidence in your jurisdiction and an-
b. How many peremptory challenges will you swer the following:
get? a. What is the scope of cross-examination?
c. Will the judge conduct voir dire? b. What is the scope of redirect examination?
d. What types of questions will you be allowed c. What kinds of questions can the tenant’s at-
to ask? torney ask your witness?
e. Would you prefer to have a trial to the court?
If you did opt for a nonjury trial, would the
1. Look at the hypos in Chapter 1. Consider each be the theme of your presentation? How would
situation and decide whether you would opt for you present this theme in your opening state-
a jury trial or a trial to the judge and why. If you ments? How do you anticipate the defendant
did opt for a jury, what types of jurors would would attack your case and how would you re-
you be seeking in voir dire? Consider what evi- but those arguments? Do you think you could
dence you would present in terms of witnesses avoid a directed verdict for the defendant?
and exhibits. Would you want to make any mo- a. Drunk driver sideswipes your car.
tions in limine? What types of jury instructions b. Tenant stops paying rent and refuses to
would you need to research? move out.
a. Drunk driver sideswipes your car. c. Cousin refuses to pay you a percentage of
b. Tenant stops paying rent and refuses to his business.
move out. d. Karate instructor breaks your nose.
c. Cousin refuses to pay you a percentage of e. Contractor does shoddy work on house.
his business. 3. If you were granted three wishes in reference to
d. Karate instructor breaks your nose. the trying of civil cases, how would you use
e. Contractor does shoddy work on house. those wishes to change the American trial sys-
2. Select one of the hypos from Chapter 1 and pre- tem? What do you see as the single most im-
pare an outline of your closing arguments. portant impediment to the search for justice in
What story would you want to tell? What would the courtroom?
CHAPTER
8
ROAD MAP
OF A LAWSUIT:
JUDGMENT
COLLECTION
AND APPEAL
OBJECTIVES
■ How to collect on a judgment
■ How to determine the assets of a

judgment debtor and decide which
assets to execute on
■ How a judgment debtor can escape

paying a judgment
■ The procedural rules that must be

followed to obtain an appeal
■ The process followed by the appellate
courts in reviewing appeals
194 CHAPTER 8 Road Map of a Lawsuit: Judgment Collection and Appeal
hypothetical
“
T hey’ll appeal. Gail hasn’t given me a definite answer yet, but I know she
thinks she can get the judgment reversed.” Allen Porter and Chuck
Fletcher were discussing the case over a quick lunch at the local deli.
Chuck chewed his pastrami sandwich in silence for a moment. “So there
go another two years down the drain, huh? There’s nothing we can do?”
“To speed it up? No, two years is about what it’ll take. Of course, we get
interest on the money, now that there’s a judgment. But the sixty-four dollar
question is whether they’ll really come up with a supersedes bond. I was get-
ting some vibes before that Gail thought we might have trouble finding any
money to collect. It’s a Delaware corporation, remember, and at this point we
haven’t a clue whether it has any assets. And you have to wonder what’s go-
ing on—pretty unusual for a business this size not to have liability insurance.
There are three possibilities, it seems to me. One is that they’re substantial
enough to be self-insured—we hope. But it could also be that they’re running
on a shoestring and trying to cut corners, or, worse yet, that they think they’re
judgment proof.”
“But surely the hotel must be worth more than the three hundred seventy-
five thousand—”
“Sure. But it’ll be mortgaged to the hilt, probably. How much did your
house cost, a hundred twenty thousand or so? How much would you get if you
sold it, after you pay off the mortgage?”
“I see what you mean. I hadn’t thought of that. But can’t we find out if they
have assets?”
“It depends. Up until now, we couldn’t—the general rule is you aren’t en-
titled to take discovery on what kind of assets the opposing party has. Now
that we have a judgment, we can take asset discovery, unless the other side
puts up a supersedes bond, and if they do that, we won’t need to, of course.”
“Supersedes bond—that’s where they put up a bond in the amount of the
judgment guaranteeing that if they lose the appeal, the judgment gets paid?”
“Right. And if they do that, the judgment is stayed during the appeal—we
can’t try to collect until the appeal is over.”
“But if they do that, and if they lose the appeal, they won’t be able to play
‘hide and go seek’ with the assets, right?”
“It won’t matter—if they try it, we just collect from the bonding company
and let the bonding company go after them.”
“And if they don’t put up the bond—”
“We take asset discovery and start looking for things to seize.”
INTRODUCTION
Entry of judgment marks the end of the trial phase of the lawsuit, but it is by
no means the end of the road for the parties to the dispute. The parties’ strate-
gies and options depend on who won, and on whether a significant amount of
money has been awarded.
The simplest scenario is a judgment for defendant that awards costs but not
attorney’s fees. Because the costs are typically trivial compared to the amount
in dispute, plaintiff’s options are simple: Appeal or give up. Often defendant will
agree to cancel the judgment for costs if plaintiff will agree not to appeal.
CHAPTER 8 Road Map of a Lawsuit: Judgment Collection and Appeal 195
The situation is more complicated when one party has a judgment against
the other for a significant amount of money. Notice that this can be either a
plaintiff’s or defendant’s judgment. It may be that plaintiff won the suit and the Putting It
jury awarded damages. Or it may be that defendant won the suit but was enti- Into Practice:
tled to an award of attorney’s fees. We call the party to whom the money is Who is the judgment
awarded the judgment creditor. The party ordered to pay the money is called creditor in Shannon’s
the judgment debtor. Now each of the parties has a potential weapon in hand: case? Who is the
The judgment debtor can appeal, and the judgment creditor can try to collect judgment debtor?
the money awarded in the judgment.
Procedurally, appeal and collection are separate processes, and we will
describe them separately. As a matter of strategy, however, they are related:
Appealing can be one way for the loser at trial to delay collection of the judg-
ment, but the threat of collection while the appeal is pending can put a serious
damper on the loser’s enthusiasm for the appeal.
Can the judgment creditor—Shannon in our hypo—begin trying to collect
the judgment immediately, or must she wait until the appeal is decided? As a
general rule in American courts, a judgment is effective and enforceable as
soon as it is entered, and the judgment creditor can begin collection proceed-
ings immediately. There can be some slight delay—in federal court, there is a
ten-day waiting period [see FRCP, Rule 62(a)], and in most courts, if a motion
for new trial is made, the judge can order the judgment creditor to wait until
the motion is decided.
If Park Hotels wants to prevent Shannon from collecting the judgment
while the case is on appeal, it must somehow obtain a stay; see FRCP, Rule 62.
A stay is a court order, issued either by the trial court or the court of appeals,
that prohibits the judgment creditor from trying to collect on the judgment
while the stay is in effect. One common way to obtain a stay is by posting a su-
persedes bond (see sidebar). Another is to file for bankruptcy, which will re-
sult in an automatic stay of all proceedings against the judgment debtor.
SIDEBAR
Supersedes Bonds
Shannon has won a judgment for a large sum of money, and Park Hotels
Groups has appealed. Now we have a dilemma. The trial court has determined
that, in effect, Park Hotels is holding money that belongs to Shannon. It seems
unfair to allow Park Hotels to keep Shannon’s money for what may be years
while the case is on appeal, especially since Park Hotels may use the time to hide
the money or simply lose it in a bad business deal, leaving Shannon with noth-
ing. On the other hand, if we allow Shannon to collect the money, and Park Ho-
tels wins the appeal, how is Park Hotels going to get its money back? By then,
Shannon may have spent it! How would you solve the problem?
The law’s solution is to let Park Hotels keep the money for now, but only if
it guarantees that the money will be there when the appeal is over. What kind
of guarantee?: a supersedes bond. A bond is a promise to pay, accompanied Putting It
by some form of security. The security can be cash deposited with the court—in Into Practice:
effect, the court will hold the money during the appeal—or, more commonly, it
In your state what does
will be an insurance contract from an approved insurance company. If it is cash,
Park Hotels Group have
and Shannon wins the appeal, the court will turn the cash over to her. If the
to do to obtain a
bond is secured by an insurance contract, the court can order the insurance
supersedes bond?
company to pay Shannon.
Your Local Notes

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Naturally, the insurance company will make sure that, if it has to pay Shan-
non, it has some way of getting the money back from Park Hotels. Before an in-
surance company will issue a supersedes bond, it will insist on getting some
security, perhaps a mortgage on the judgment debtor’s property or perhaps a
written guarantee from a large corporation that is clearly able to pay the
amount in question. If Park Hotels has few assets, probably no insurance com-
pany will issue a bond, and Park Hotels will be forced to try to dodge Shan-
non’s collection efforts while the appeal proceeds.
COLLECTING THE JUDGMENT

Chuck Fletcher was trying to explain the ins and outs of post-trial pro-
ceedings to Shannon. It was not going well.
“It just seems to me like a dumb way to run a system. I mean, what’s the
point of suing somebody if they don’t have to pay you when you win?”
Chuck tried again. “While the case is on appeal, if they post—”
“I understood the part about the bond. What I don’t understand is, let’s
say they don’t put up a bond—why wouldn’t the court make them pay me?”
“How?”
“I don’t know—how about, put them in jail until they turn over the money?”
“See, that would be like having a debtor’s prison—we don’t do that in this
country. And, what if the judgment debtor doesn’t have the money? Is the judge
supposed to let them rot in jail forever? Besides, this is a corporation. Who are
you going to put in jail? It just doesn’t work, you couldn’t do it that way.”
“Well—how about having the court seize the hotel and sell it, or grab
their bank account, something like that?”
“That’s what we will try to do if it comes to that. But the thing is, the court
doesn’t do it. Basically, courts don’t do anything unless the attorneys prepare
everything first. It’s up to the judgment creditor to find the assets and arrange
for them to be seized and sold. All the court will do is sign the necessary pa-
pers—after we prepare them.”
“So if they manage to hide all their assets, we’re out in the cold?”
“Pretty much. Of course, with a going business like a hotel, it would be
hard for them to hide absolutely everything. They’d have to have an operat-
ing bank account, for example, but it probably doesn’t have more than a few
thousand in it at any given time, so you’d have to keep coming back. What
judgment debtors do, sometimes, is just make it so tedious and expensive to
collect, that it’s easier to give up and settle for a smaller amount of money.”
Winning a final judgment does not automatically result in plaintiff getting
paid. You cannot take a judgment down to the bank and deposit it in your ac-
count. A judgment merely gives the winner of a lawsuit the right to try to seize
the loser’s assets. Even this right is limited, as we shall see shortly. The loser
can, of course, simply pay the judgment, or the parties can agree to settle the
case for some lesser amount. But if the loser refuses to cooperate, the winner
must somehow find the loser’s property and have it seized and sold to pay the
judgment, which may be difficult or impossible. The process of seizing the judg-
ment debtor’s property and applying it to pay the judgment is called execution.
THE COLLECTIBILITY CONUNDRUM

One of the most important considerations in deciding whether a lawsuit is
worth filing in the first place is the question of whether the person to be sued
is judgment proof, i.e., has no assets from which a judgment could be col-
lected. Every plaintiff’s lawyer regularly turns down great cases that would be
fantastic moneymakers—except that the person to be sued has no insurance
and no reachable assets.
Like it or not, the importance of collectibility is a central fact of litigation.
A case will make a “good” lawsuit only if (1) you can prove liability, (2) there
are significant damages, and (3) there is some way to collect a judgment.
Herein lies one of the great Catch-22’s of litigation: As a practical matter, there
is often no good way to know whether you can collect a judgment until you
have obtained one. Before judgment, the defendant is not required to allow
plaintiff to invade his financial privacy.
Does this mean plaintiff is always flying blind on the question of whether
a judgment can be collected? Not at all. For one thing, insurance coverage is
always discoverable; if defendant has enough insurance to cover the judgment
plaintiff is seeking, the collectibility problem evaporates. Also, if the defendant
is a large corporation and not visibly teetering on the edge of bankruptcy, it is
usually safe to assume that a judgment can be collected. There is also a pro-
cedural tactic for getting discovery of the defendant’s financial circumstances,
which is often tried and occasionally works: Include in the complaint a claim
for punitive damages. Punitive damages are awarded to punish unusually rep-
rehensible conduct, and in order to administer punishment at a suitable level
of pain, the jury has to know how much money the defendant has to start with.
If the trial judge agrees that the conduct in question is reprehensible enough
to warrant punitive damages—a big “if”—then plaintiff is entitled to take dis-
covery aimed at finding out how much money defendant has.
In many situations, it is obvious that a judgment could not be collected.
The prime example is the automobile collision where the driver at fault has no
insurance. As a practical matter, it is difficult or impossible to collect any sig-
nificant amount of money from an ordinary working person if there is no in-
surance. You may reasonably wonder how this can be—if the person is work-
ing, surely they have a salary, a house, a car? Can we not seize these things and
get paid that way?
Not usually. In the American system, we do not allow the winners of law-
suits to strip the losers down to their underwear and leave them to sleep in
the street! The law allows a judgment debtor to keep enough money and prop-
erty to be able to survive. How much money and what kind of property? Each
state has so-called “exemption statutes” that list a number of items that any
judgment debtor is entitled to keep. These lists have been added to and ad-
justed upward from time to time, to the point that today, in some states, the
“survival” level can be luxurious indeed. A typical middle-class judgment
debtor will be able to keep her house, at least one car, some clothes, books,
furniture, tools, jewelry—most of the common badges of middle-class exis-
tence. As for wages, federal law allows the judgment debtor to keep either
three-fourths of her take-home pay or the equivalent of thirty hours at mini-
mum wage, whichever is greater. This leaves, at most, one-fourth of the judg-
ment debtor’s take-home pay that can be seized, and even that meager source
of payment will likely dry up quickly if targeted. For instance, the judgment
debtor can change jobs, move to another state, or simply file for bankruptcy.
(We hasten to add that these exemptions prevent seizure of exempt prop-
erty by a judgment creditor—not by a secured creditor. If you decide to quit
Putting It making your car payment, you can be sure that the lender will repossess your
Into Practice: new Porsche in a heartbeat, and no exemption statute will prevent it. That is
What should Allen Porter because, when you bought the car, you signed a contract in which you volun-
have done at the onset of tarily agreed that this specific car would be security for the loan.)
litigation to ensure that
any judgment against FINDING ASSETS
Park Hotels Group could
be collected? Suppose you already have a final judgment. Now can you find out what assets
your opponent has? The action is no longer pending, so the normal discovery
rules do not apply. The law, however, provides other, equivalent procedures
for discovering assets.
Asset discovery begins with a judgment debtor’s examination, often
called a debtor’s exam. A debtor’s exam is, in effect, like a deposition of the
judgment debtor, in which the judgment creditor’s attorney asks questions
about the judgment debtor’s assets. The procedure for scheduling a
debtor’s exam varies; you should consult the statutes or rules for your lo-
cality. Some debtor’s exams are held at the court, under the supervision of
a court officer (who may be called a magistrate or any of several other ti-
tles) who is not a judge but is appointed to handle routine matters in the
judge’s place. The supervising officer does not actually attend the exami-
nation—there are too many! He merely swears in the judgment debtor and
stands by in case there is a need for a ruling or order of some kind. The judg-
ment creditor’s attorney and the judgment debtor are sent into any avail-
Putting It
able conference room to do the questioning. If the judgment debtor is eva-
Into Practice: sive or uncooperative, it is easy to haul her back before the supervising
In your state how would court officer, who will likely administer a dose of reality. The court will force
you schedule a debtor’s the judgment debtor to answer any reasonable questions about her prop-
examination for Park erty, under threat of jail if she refuses. Debtor’s exams are also sometimes
Hotels Group? held at the judgment creditor’s attorney’s office, in a manner similar to a
deposition. A court reporter may or may not be present at the option of the
judgment creditor’s attorney. Often, it is deemed easier and cheaper simply
to take notes.
The objective of a debtor’s exam is to find property or money belonging to
the judgment debtor. The modern reality is that most kinds of property have
some kind of paperwork associated with them: Real estate has deeds, cars
have title certificates, bank accounts have statements, etc. Therefore, it is cus-
tomary to summon the judgment debtor to the debtor’s exam via a subpoena
duces tecum (or other similar order provided for in the statute or rules dealing
with debtor’s exams), which includes a long and detailed list of documents for
the judgment debtor to bring. The examination will consist of going through
these records one by one, noting down the information necessary to find and
seize the property in question. Of equal importance, the attorney will question
the judgment debtor about the categories of property for which no documents
have been produced. There will be questions about the judgment debtor’s in-
come and expenses and where any excess money has gone.
When you are going after a bigger fish—say, a corporation that does busi-
ness in several states—the situation is more complicated. If you schedule a
debtor’s exam, the corporation will designate some employee to appear and
testify. That person will probably claim not to have all of the information you
need. Some of the information you need may be in other offices, in other
states. Here, tenacity is the key. In principle, the judgment creditor can take
whatever discovery is necessary to find out what assets the company has and
where they are located. Procedures vary, and a judge’s permission may be re-
quired at certain stages.
EXECUTION
Once you have found assets, then what? How can you translate them into
money to pay your judgment? It depends on the type of asset. We describe the
procedure for three of the main kinds of property: real estate, tangible per-
sonal property, and money. These procedures vary from state to state, and you
must follow the laws of the state in which the property to be seized is located.
When we seize and sell a particular item of property to pay a judgment, we
say that we are executing on that item of property.To execute on real estate,
the first step in most states is to obtain a judgment lien. A lien is a security in-
Putting It
terest, similar to a mortgage, giving the lienholder the right to have the prop-
erty sold to pay off a debt. There are many kinds of liens, most of which do not
Into Practice:
concern us here; a lien that comes from recording a judgment is called a judg- How would you record a
ment lien. In some states, a lien on the judgment debtor’s real estate auto- judgment lien against
matically arises when the judgment is entered; in others, it is necessary to Park Hotels Group if they
record the judgment at the office of the county recorder or docket the judg- did business in your
ment with the clerk of the court in the county where the real estate is located. state?
Your Local Notes

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Once the judgment lien is in existence, the judgment debtor can have the
property sold and the proceeds applied to pay the judgment. In some states,
the judgment creditor must foreclose the judgment lien in the same way that
a lender forecloses a delinquent mortgage. In general, this is done by filing a
suit for foreclosure in court and obtaining a court order to have the sheriff (or
some other court officer) sell the property at auction. Still another lawsuit?
Yes; the problem is that, often, the judgment debtor is not the only one with
rights to the property. There may be lenders, co-owners, lessees, spouses,
partners—everyone who has an interest in the property must be notified and
given a chance to salvage what is theirs. If the property is the judgment
debtor’s house, the situation is even more complicated, because the exemp-
tion laws may apply to all or part of the judgment debtor’s equity. There may
even have to be a trial—and an appeal! In other states, real property can be ex-
ecuted on and sold in a manner similar to that used for personal property (see
later discussion).
You will probably be relieved to know that we do not expect you to mas-
ter the intricacies of foreclosure law here—it is a specialty to which some
lawyers devote their entire careers. For our purposes, the message is just this:
The judgment creditor should routinely record the judgment in the county
recorder’s office of every county where the judgment debtor may have real es-
tate, and can then (eventually) get a court order to have any nonexempt real
estate sold at auction.
Tangible personal property means things. It does not include real estate
nor does it include bank accounts, contract rights, or anything else that has
no physical existence (such things are not tangible). Examples of tangible per-
sonal property are furniture, cars, tools, jewelry—anything that can be physi-
cally held or touched. To execute on tangible personal property, we obtain a
writ of execution from the clerk of the court. A writ of execution is a court or-
der directing the sheriff (or other law enforcement official) to go levy on
(seize) specific property and sell it at public auction. The judgment creditor’s
lawyer prepares the writ of execution, which is a court paper, typically a one-
or two-page printed form with an attached list of property to be levied on. The
clerk of the court issues it more or less on request, without the judge having
to be involved. The procedure to be followed by the sheriff in seizing and sell-
ing the property varies considerably from one state to another because each
state has statutes that set out the requirements.
As a practical matter, writs of execution on tangible personal property are
rarely of much use. There are several reasons: First of all, by the time a judg-
ment is entered and a writ issued, the judgment debtor has had plenty of warn-
ing, and any tangible property of any value is likely to be long gone or well hid-
den. Second, when the deputy sheriff goes out to levy on the property, he
Putting It cannot enter private property and conduct a search without permission. If the
Into Practice: owner of the premises refuses to let the deputy sheriff in, telling him that the
Would there be any property sought is not there, the sheriff will simply return the writ “nulla
reason to secure a writ bona”—nothing found. And finally, most of the common kinds of used personal
of execution in property are unlikely to sell for much money at an auction. Execution on tan-
Shannon’s case? gible personal property works best when there is some object that is large and
difficult to hide—machinery, say—and the judgment creditor knows exactly
where it is and can lead the deputy sheriff to it.
Your Local Notes

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The best and easiest assets to execute on are, of course, money and other
financial assets. Not cash, of course, because it is too easy to hide. A judgment
creditor’s best targets are accounts in banks, stockbrokerages, and other fi-
nancial institutions, because they generate a constant flow of statements and
records, all of which can be subpoenaed from the institution if necessary, mak-
ing the money relatively easy to trace. If the judgment debtor transfers money
from a known account trying to make it disappear from the radar screen, the
judge can simply order her to transfer it back, under threat of jail.
How do you execute on a bank account? A bank account is actually a debt
owed by the bank to the account holder. When you deposit money in a bank
account, you are, in effect, lending the money to the bank. What we need,
therefore, is a procedure that we can use when we find someone who owes
money to the judgment debtor, and force them to pay us the money instead.
Putting It That procedure is called garnishment. When you garnish, say, a bank account,
Into Practice: you are simply having the court order the bank to take the money that it owes
Under the garnishment to the judgment debtor and pay it to the judgment creditor instead. Naturally,
statutes in your state, the procedure is more complicated than that, and the bank must be given an
what would Allen Porter opportunity to be heard, in case (for example) it disagrees about how much it
have to do to garnish owes the judgment debtor. But, in principle, any time you can find a debt owed
Park Hotels Group’s to the judgment debtor, you can, via a writ of garnishment, step in and collect
bank account? it on behalf of the judgment creditor. A writ of garnishment is a court order di-
rected to the person who owes the judgment debtor money. It is issued by the
clerk under procedures that vary from state to state—consult your local gar-
nishment statute.
Your Local Notes

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The same procedure is used to seize the judgment debtor’s wages. Wages
are, again, in essence a debt owed by the employer to the employee. Here,
however, there are limits imposed by federal law, as already noted: You can
never seize more than one-fourth of the employee’s take-home pay, or leave
the employee with less than thirty hours per week of pay at minimum wage.
There are, of course, many other procedural weapons in the judgment col-
lector’s arsenal. Nearly all are creatures of state law, and each state has its own
procedures. One of the requirements to use most of these weapons is that you
must produce a final judgment that the clerk of the court, county recorder, or
other official is willing to recognize. If your judgment comes from a court in the
same state, at most you will need to get a certified copy from the clerk of the Putting It
court that issued it. Federal judgments are entitled to the same treatment as a Into Practice:
state court judgment; see 28 U.S.C. 1962. If Park Hotels Group did
If you have a judgment from one state and are chasing property in another business in your state and
state, however, the problem becomes more complicated. Although every state Allen Porter had a
must give “full faith and credit” to the judgments of every other state, it may judgment against Park
be necessary to go through additional procedures in the target state to have Hotels Group from
the judgment accepted. In some states, registering an out-of-state judgment is another state, what
relatively simple: You can file the judgment with the clerk of a court in the tar- would Mr. Porter have
get state, together with some additional papers and a filing fee. In others, it is you do to register the
necessary to sue on the judgment; that is, file a whole new lawsuit in the tar- judgment in your state?
get state based on the debt created by the judgment, and obtain a new judg-
ment in the target state!
THE JUDGMENT DEBTOR’S OPTIONS

It should be obvious by now that a judgment debtor who is willing to resist col-
lection aggressively and is not afraid to bend the rules can make it extremely
tedious and difficult to convert a judgment into actual money! Litigation is an
adversarial process, and you cannot necessarily expect a defendant to throw
in the towel and pay up merely because you won a judgment.
The very best ways to escape paying judgments require advance planning,
which is best done before engaging in any conduct that may lead to lawsuits.
Everyone is familiar with the common type of armor against lawsuits: the cor-
poration. One of the main reasons to incorporate a business is the fact that any
lawsuit arising from the business goes against the corporation, not the share-
holders. Say you have a million dollars in the bank, and you decide to go into
the roller blade rental business. Every time one of your customers falls down,
you risk losing your million in a lawsuit. But if you form a corporation, of which
you are the sole stockholder, and you fund the corporation with a reasonable
amount of capital—say, $25,000—your customers are stuck with suing the cor-
poration, and the most they can get is (in theory) $25,000.
Naturally, plaintiffs’ lawyers are always chipping away at the corporate shield,
and every once in a while they manage to break through and get judgment against
the shareholders—no defense is perfect. In the professions of, for example, law
and medicine, the corporate shield does not work because ethical rules make the
individual lawyer or doctor liable for malpractice even if his practice is incorpo-
rated. Does this mean that a doctor can never become judgment proof? Not at all.
It just takes more complicated planning, involving (for example) a combination of
a limited partnership and a trust created in a suitable foreign country. There are
lawyers who specialize in setting up such arrangements, which make it possible
for individuals to have essentially unlimited amounts of money without any risk
that a successful plaintiff can reach any of it to satisfy a judgment.
What if the judgment debtor did not plan ahead? There are still a number
of options, ranging from some that are clearly legal and appropriate to others
that are clearly illegal but nonetheless often resorted to.
If the judgment debtor is a natural person—a live human being as opposed

to a corporation or other entity—the first line of defense is to take advantage of
the exemption statutes. It is perfectly legal for the judgment debtor to take as-
sets that could be seized and convert them into exempt assets, even after the
judgment has been entered. A judgment debtor who has $50,000 in the bank may
be able to render it unreachable simply by using it to pay down the mortgage on
her house. Cash is subject to execution, but the equity in a debtor’s personal res-
idence is exempt in most states (at least to a set amount, such as $100,000).
Merely rearranging assets to take advantage of the exemption statutes
does not, of course, extinguish the judgment. The instant that the judgment
debtor acquires any nonexempt property, the judgment creditor can swoop
down and levy on it. And if the judgment creditor wants to “play hardball,”
there is nothing to prevent him from garnishing each of the judgment debtor’s
paychecks, even if the amount to be collected that way is limited. Can the judg-
ment debtor do anything to escape this aggravation? Certainly: File for bank-
ruptcy. The bankruptcy court will allow the debtor to keep all exempt prop-
erty and grant a discharge in bankruptcy that will extinguish the judgment!
Another tactic is for the judgment debtor simply to move to another state
with her assets—again, perfectly legal. In theory, the judgment creditor can
pursue the assets in the new state, but doing so takes time and money, and will
Putting It likely require hiring a lawyer in the new state—and if the judgment creditor
Into Practice: gets close, the judgment debtor can always move again. And if moving to an-
If your dog bit a house other state is not enough to seriously dampen the judgment creditor’s enthu-
guest and you were afraid siasm, moving to another country almost certainly will be. In theory, it is pos-
of losing your limited sible to collect judgments in other countries; in practice, except for a few
assets if you were sued, friendly countries like Canada, it is difficult and expensive to the point of fu-
how would you go about tility unless there is a huge amount of money at stake.
protecting those assets
from being seized? Your Local Notes
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When the judgment is against a business entity, instead of an individual, ex-

emption laws do not apply. Now the bankruptcy laws take on great importance.
Chapter 11 of the bankruptcy act allows corporations and other business enti-
ties to file for “reorganization” under the bankruptcy laws. The bankruptcy
court has the power to approve a “plan” for dealing with creditors that will al-
low the business to remain viable. Usually, the “plan” will involve paying off
debts over a long period of time and at a substantial discount. Reorganization
does not usually result in the judgment debtor making a clean getaway—some
amount will have to be paid sooner or later—but once a Chapter 11 filing has
occurred the judgment creditor is unlikely to see his money any time soon.
Judgment debtors who do not mind breaking the law (and there are sur-
prisingly many of them) can make collection difficult or impossible by the sim-
ple expedient of transferring their property to someone else. Consider a simple
hypo: Joe Sixpack crashes into your car and breaks your arm, so you sue him
and get a judgment for $50,000. Joe has plenty of money. He also has a sister,
Jane, whom he trusts completely, and who lives in another state. Before you can
execute on your judgment, Joe makes a “gift” to Jane, and all Joe’s money winds
up in Jane’s bank account. Now what? You do not have a judgment against Jane!
Most states have laws against so-called “fraudulent conveyances.” In gen-
eral, a fraudulent conveyance is any transfer made by a judgment debtor that
leaves him without sufficient assets to pay the judgment. The specifics of
fraudulent conveyance laws are quite technical, and not all transfers will be
found fraudulent. The real problem for the judgment creditor, however, is this:
Once the transfer is made, the assets are in the hands of someone else, against
whom there is no judgment. Before you can garnish the money in Jane Six-
pack’s account, you need a judgment against Jane. The fraudulent conveyance
laws probably entitle you to ask for one, but getting it may take the equivalent
of another lawsuit! And by the time you get the judgment against Jane, she may
have given the money to her cousin Bob. . . .
Putting It
Perhaps, by now, you are beginning to understand why most lawyers avoid Into Practice:
suing individuals unless they have insurance. As a practical matter, individu- What should Allen Porter
als (and small business companies) who are sufficiently determined can make anticipate Park Hotels
judgment collection so difficult as to not be worth the expense. Group might do to avoid
collection? What could he
Your Local Notes do in response?
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In personal injury practices, which probably account for a majority of litiga-
tors, judgment collection is rarely a problem—the target is always insurance.
Normally, personal injury litigators do not file lawsuits in cases where judg-
ment collection problems may arise.
At the other extreme, some lawyers make a specialty of collecting debts.
They represent doctors, dentists, hospitals, collection agencies—anyone with
a large volume of delinquent bills to collect. In a debt collection practice, ob-
taining judgments is usually easy and routine, because most delinquent
debtors do not contest the suit. Here, judgment collection becomes a large part
of the practice. Debt collection practices are high-volume operations, because
of the relatively small amounts usually involved in each case. To keep the vol-
ume of cases flowing efficiently, the paperwork is usually computerized and
highly dependent on the use of forms. Much of this work is perfectly suited for
paralegals—the dollar amounts involved are too small to justify much attorney
time, yet more legal judgment is needed than an untrained clerk is capable of
bringing to bear. The paralegal in such a practice will be given extensive re-
sponsibility, and the attorneys may never even review most of the files.
Somewhere in the middle are the litigators who handle commercial litiga-
tion, suits involving business disputes. Collection problems often arise in com-
mercial cases, because the targets are often able to pay for a considerable
amount of legal planning and maneuvering in their efforts to escape payment.
Putting It
Such cases involve meticulous strategizing by the lawyers, and the paralegal’s Into Practice:
role is a supportive one, carrying out individual assignments, often involving What would be the
the discovery aspects of judgment collection. benefits of working as a
paralegal for an attorney
who had primarily a debt
collection practice? What
APPEAL would be the downside?
“Well, Chuck, that’s how I spell relief,” said Allen Porter, hanging up the
phone. “S-u-p-e-r-s-e-d-e-s.”
“They filed the bond?”
“Yesterday. I was pretty sure Gail was bluffing about them being judgment
proof, just trying to con me into taking their $100,000 settlement offer.”
“You must have been sweating—if they really hadn’t had any assets we
could execute on, and you turned down $100,000. . . .”
“That’s why you always, always, keep the clients informed and let them
make the final decision. With proper advice, of course.”
An appeal is a procedure for challenging the decision of the trial court. The
court of appeals has the power to reverse the trial court’s decision—that is, to
set it aside—or to affirm, and let the trial court’s judgment stand as it is. If the
court of appeals reverses, the case will ordinarily be sent back to the trial
court for a new trial. However, if the court of appeals is able to determine from
the record what the trial court decision should have been, it may not be nec-
essary to retry the case. The court of appeals will simply instruct the trial
court to enter a different decision.
Appeals are about error. Before the court of appeals will reverse or modify
a trial court judgment, the court must be persuaded that reversible error was
committed in the trial court. Not all error is reversible error. Probably no case
makes it all the way to judgment without a few errors along the way, and if the
errors are trivial, or if they did not affect the ultimate outcome of the case, they
will be branded “harmless error” and the judgment will be affirmed in spite of
them. Reversible error comes in many flavors; a few common ones are allowing
evidence that should have been excluded, refusing to allow evidence that
should have been admitted, or misstating the law in a jury instruction, or re-
fusing to give a jury instruction that should have been given. Reversible error
can also come from the judge’s rulings on various pretrial motions.
One kind of error that courts of appeals generally never address is error
committed by the jury in deciding the facts. The jury had the opportunity to
hear the witnesses in person and observe them, while the court of appeals has
only the cold, sterile record. The court of appeals will not substitute its judg-
ment for that of the jury. The court of appeals reviews the process of a trial, not
the outcome. The court will reverse if the process was not conducted according
to the rules, but will not reverse merely because the members of the court of ap-
peals would have reached a different verdict than the jury did. (Of course, one
part of the process is the motion for judgment notwithstanding the verdict—if
the verdict is so clearly contrary to the evidence that “reasonable minds could
not differ,” then the trial judge should have granted judgment n.o.v., and the
court of appeals can send the case back with an order to do so. In that sense,
the court of appeals can review the “outcome” in an extreme case.)
Normally, appeals involve only one or a few specific errors (or claimed er-
rors). The court of appeals does not comb through the whole record looking
for mistakes. It is up to the appellant to do that, and to specify exactly what er-
rors appellant is asking the court of appeals to consider. We will discuss the
procedures for doing this, but first we need to review some terminology.
The party who starts the appeal is called the appellant. All other parties are
called appellees. Notice that the appellant may be either the plaintiff or the de-
fendant. Usually, the appellant is the party that lost the case, but it is also possi-
ble for the winner to appeal. For example, plaintiff may win a substantially
smaller amount of money than expected and decide it is worth going through the
delay and expense of an appeal in order to get a chance at another shot with a
Putting It different jury. (Of course, for this tactic to succeed, plaintiff will have to find
Into Practice: some reversible error on which to base the appeal.) There can also be cross-ap-
If Park Hotels Group peals; in fact, when the loser appeals, it is quite common for the winner to cross-
appeals and Shannon appeal. In our hypo, for example, Park Hotels has appealed. Allen Porter will at
cross-appeals, who will least consider a cross-appeal on Shannon’s behalf—otherwise, the court of ap-
be the appellant? peals will hear about, and possibly reverse, those of the trial judge’s rulings that
The appellee? Park Hotels did not like, but will never hear about whatever erroneous rulings
went against Shannon. If the case should be reversed, the rulings adverse to Park
Hotels will be changed, and the ones adverse to Shannon would stay the same.
Your Local Notes

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An appeal can be made only after a final judgment is entered. This rule may
not seem to make much sense—after all, if the judge makes some fatal error early
in the case, why should you have to waste time and money litigating to a final
judgment, only to have the case sent back for a new trial? The reason for pro-
hibiting interlocutory appeals—appeals taken before the case is over and judg-
ment entered—is simple expediency. Appellate courts are afraid (probably with
good reason) that cases would be appealed “piecemeal,” with one attorney or the
other running off to the court of appeals every time the trial judge made a deci-
sion on some minor motion. There are a few limited ways to get interlocutory re-
view (see sidebar), but, on the whole, the final judgment rule is strictly enforced.
The appeal process begins with the appellant filing a notice of appeal with
the clerk of the trial court. (The court of appeals is a different court, and it has
its own clerk and administrative staff.) The notice of appeal is a court paper, typ-
ically one page, which simply says that the party filing it is appealing. The no-
tice of appeal sets in motion a chain of events that varies somewhat from court
to court. In the federal system, the courts of appeals follow the Federal Rules of
Appellate Procedure, which is another set of rules nearly as extensive and com-
plicated as the Federal Rules of Civil Procedure. Each court also has local rules.
State appellate courts also operate under a separate set of rules that are appli-
cable only to appeals—typically, the rules of civil procedure that govern the trial
courts do not apply, because appeal proceedings are quite different from trials.
After the notice of appeal is filed, several things must happen more or less
simultaneously; the exact procedure for doing them is prescribed by the rules.
The trial court must transmit the record to the court of appeals. The entire
record can be huge. It includes the transcript of the trial, the trial exhibits, the
entire court file containing the pleadings and other court papers, and, poten-
tially, various court papers pertaining to discovery, which, under modern
practice, may not have been filed with the court. Therefore, there will likely be
some procedure whereby the parties can designate the parts of the record
that they intend to use in the appeal, so as to avoid having to prepare and
transmit unnecessary items. Arrangements must be made for the court re-
porter to transcribe the shorthand notes and prepare a typed or printed tran-
script of the testimony. Preparing and transmitting the record typically takes
several weeks to several months.
Once the record has been transmitted, the parties will have a short time in
which to submit written arguments, called briefs. The content of a brief is simi-
lar to that in a legal memorandum in support of a motion in the trial court. That
is, it consists of an argument, citing authorities (statutes and reported appellate
cases), giving reasons why the court of appeals should reverse or not reverse
the case. Briefs are, however, much more formal documents than trial court mo-
tions. Appellate court rules typically require briefs to be bound like a booklet,
to include a table of contents, table of cases cited, and other formal niceties, and
to conform to quite picky rules of style and layout. (One stylistic matter that all Putting It
beginning lawyers and paralegals suffer through at first is the requirement that Into Practice:
citations of cases and other authorities conform to very finicky rules that say Why do you think the
how each source must be abbreviated, what order sources are cited in, and even rules surrounding briefs
where the periods, commas, and parentheses go. Appellate briefs reach a much are so exacting?
higher level of fastidiousness than typical trial court motions.) There will also
be a page limit, and the clerk will refuse to accept briefs that exceed it.
SIDEBAR
Interlocutory Appeals
As you might expect, attorneys are always looking for ways to get around
the final judgment rule. It can be a bitter pill to swallow when the trial judge
makes some absurd ruling (yes, this does occasionally happen!) that essentially
destroys your case, and you have to waste months or years and spend tens of
thousands of dollars of your client’s money taking the case to trial, before you
have a chance to ask the court of appeals to fix the problem. Or, if you repre-
sent a defendant in a suit where plaintiff’s claims are essentially frivolous and
should be dismissed out of hand, you can become frustrated when the trial court
denies your motion for summary judgment. Now your client has to bear the ex-
pense of a trial, spending huge sums that she will probably never get back.
Putting It A few strategies are possible that can be tried in such situations. One in-
volves so-called “extraordinary writs.” These are (or evolved from) arcane ap-
Into Practice:
pellate court petitions with names that reek of history, like “certiorari,” or
Suppose in Shannon’s “mandamus,” or “quo warranto,” that were originally intended for other pur-
case the judge makes a poses, and have been bent to the task of giving the court of appeals an excuse
ruling that is critical to for reaching down and fixing a particularly egregious trial court mistake. The
Shannon’s position and procedures involved vary enormously from one court to another, and we will
that involves an unsettled not attempt to elucidate them here. These petitions are often tried and seldom
area of law in that successful.
jurisdiction. What might
In federal court and in some state courts, the trial judge has the power to
Allen Porter do if the
“certify” a ruling for immediate appeal. Naturally, the trial judge will do this
ruling is adverse to him?
only if the ruling is important and the judge is in some doubt about its correct-
What should Allen Porter
ness. Also, under FRCP, Rule 54(b), the trial judge can declare a judgment that
have done to prepare for
disposes of part but not all of the lawsuit to be final for appeal purposes; this is
such an eventuality prior
often done when, say, the judge grants summary judgment as to some defen-
to the ruling?
dants but sets the case for trial as to the others.
Your Local Notes

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Briefs are filed with the clerk of the court of appeals, in the familiar three-
stage sequence: appellant’s opening brief, giving reasons why the court of ap-
peals should reverse the trial court’s decision; appellee’s responding brief, ar-
guing the contrary; and finally, appellant’s reply brief, typically much shorter
than the other two, in which appellant answers any new arguments raised in
appellee’s responding brief. Appellate court rules provide for time deadlines
for filing these briefs that are typically about a month apart. In practice, the
opposing lawyers often agree among themselves to extend the deadlines,
since it is a major undertaking to do a professional job on an appellate brief,
and a few extra weeks spent on the briefs makes little difference in the context
of an appeal that will likely drag on for at least another year.
Tedious and slow though it may be to take a case from complaint to ver-
dict, trial courts move at supersonic speed compared to the glacial pace of
most appellate courts. After all the briefs have been filed, the appeal is said to
be “at issue”; the next step is to wait for the court of appeals to take up the
case for decision. This can take anywhere from six months to several years,
depending on the court and the level of its backlog.
At some point, the appeal will be assigned to the panel of judges that will
decide it. Appeals are heard and decided by panels of (typically) at least three
appellate court judges. Often, the judges making up the panel will meet with
each other periodically and divide up their pending cases, so that each appeal
will be assigned to one judge for a preliminary workup. Each appellate judge
has one or more law clerks (clerking for an appellate judge is a sought-after ap-
prenticeship for new lawyers) who will be assigned the work of reading the
briefs, researching the legal issues, and making recommendations to the
judge.
Appellate cases can be decided either with or without oral argument. In
some cases, the parties may decide to waive argument (or not request it) and
submit the case for decision on the written briefs. Why? Typically, because it
gets the case decided faster! In others, the court of appeals may not wish to
hear argument.
When argument is allowed, the attorneys appear at the court of appeal’s
courtroom at the designated time and present a formal argument. Unlike argu-
ments on trial court motions, appellate arguments are formal affairs, never done
in chambers, and each side will be under strict time limits—the court will cut the
lawyers off in mid-sentence if they try to keep talking after the time runs out. As
a rule, appellate judges tend to be well prepared for argument, and will have read
and understood the briefs. Therefore, the attorneys will not be allowed simply to
repeat what is in the briefs. Most of the argument time will be spent answering
pointed questions from the judges, not only about the case being decided, but
also about any cases cited as authorities in the briefs. Skillful appellate lawyers
learn to work their best arguments into their answers to the judges’ questions.
At some time after hearing argument (or earlier, if the case is not to be
orally argued), the panel of judges who will decide the appeal holds a confer-
ence, makes a tentative decision, and assigns one of their number to write an
opinion. This written opinion will not only decide the case, it will also describe
the pertinent facts, indicate what questions the court is deciding, and explain
the decision and the reasons underlying it. Other members of the panel may,
if they wish, write concurring opinions—opinions agreeing with the result but
disagreeing with all or part of the reasoning in the main opinion—or dissent-
ing opinions—opinions disagreeing with the result reached by the majority of
the panel. Appellate court opinions like these serve both to inform the parties
of the outcome of the appeal and as a part of the common law, furnish rules to
be applied in future cases.
Once the opinions have been completed, copies are sent to the attorneys.
Several months typically elapse between oral argument and announcement of
the decision. At the same time or within some short time period thereafter
(prescribed by rules), the court of appeals issues a mandate. A mandate is an
order telling the trial court what to do next. The appellate court’s decision
may require a new trial, require the trial court to change the judgment in some
way or follow other specific instructions, or simply sustain the trial court’s
judgment.
For the party who loses the appeal, this is not quite the end of the appel-
late road: The state supreme court can be asked to review the court of appeals’ Putting It
decision. The procedure for asking for this additional review varies, but it is Into Practice:
(almost) always discretionary. The supreme court can, and usually does, refuse Why do you think
to consider the matter, in which case the court of appeals’ mandate will stand attorneys often advise
and little if any additional time will be lost. If the supreme court does decide to clients not to appeal
review the appeal, the decision process will begin again in the supreme court, a judgment?
and additional months or years will pass before the supreme court issues its
own written opinion and mandate.
Your Local Notes

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Appellate practice tends to be divided between specialists, who devote all or
most of their practice to handling appeals, and general litigators, some of
whom prefer to handle the appeals that arise from their own cases. The
biggest single task in an appeal, in terms of the time and effort required, is re-
searching and writing the briefs. Most of this research and writing is neces-
sarily done by attorneys, because the legal issues involved are usually some-
Putting It what novel or complex. (If they were routine, the answers would be clear and
Into Practice: there would be no need for an appeal!) In larger firms, brief writing is often a
job for associate attorneys who are recent law school graduates; nevertheless,
If paralegals do little in
some paralegals do, with experience, develop the skills and judgment neces-
the way of research and
sary to make a contribution in the research arena.
writing briefs, why do
The other primary consideration in appellate work is meticulous compliance
most paralegal training
with the detailed requirements of the rules, especially those that impose dead-
programs require research
lines for various tasks. There is considerable scope for paralegal involvement in
and writing classes?
scheduling, docketing, and maintaining the flow of paperwork, and in monitoring
the brief-printing process for compliance with format and style rules.
“Shannon Martin, calling from Seattle.”
“Put her through.”
“Hi, Allen, long time no see. I hear you have good news for me.”
“Yes. I’m glad you got my message. New job going well, I hope?”
“Great! So, don’t keep me in suspense—what happened?”
“I assume you got my letter, telling you that the court of appeals affirmed
our judgment. The supreme court has turned down the hotel’s petition for re-
view, so that’s it. It’s over.”
“Just like that? So, finally, after—what is it, almost four years?—I’m fi-
nally going to get some money out of this?”
“That’s right.”
“I get paid?”
“You get paid.”
“Are you sure there isn’t one more ‘procedure’ the hotel can take? It
seems as though, this civil litigation—you never get to the end.”
“That’s true, in a way. If they were determined to keep litigating, they could
always try the U.S. Supreme Court, or file a countersuit in a different state—but
those are desperation moves, and they wouldn’t stop us from collecting on the
bond. And Crandall, Elkins is a reputable firm, they wouldn’t be a party to that
sort of thing. No, I think we’re there—either they pay up or we hit the bond.”
Shannon was silent for a moment. Four years of litigating. The expense,
the hassle, the lost sleep. The aggravation of being raked over the coals by
the hotel’s lawyers, first in depositions and then on the witness stand at trial.
Instead of helping her put her life back together after The Ordeal, the lawsuit
had, if anything, added to the stress. She hadn’t even gotten the satisfaction
of seeing her attacker punished—Dr. Collins had gotten off without punish-
ment. The hotel clerk who had apparently mixed up the keys was just an em-
ployee, so he wouldn’t be paying anything either. Collecting some money
from some anonymous Delaware hotel company just wasn’t very satisfying,
somehow, although she could certainly use the cash.
Now, finally, it was over.
Had it all been worth it?
Shannon could not say.
ETHICAL ETIQUETTE
O ne of the most important land
mines for legal assistants to
avoid is the unauthorized practice of
factual research, and organizing,
summarizing, and analyzing legal
documents.
law. Because the definition of the Less clarity is found in classifying
“practice of law” defies any reasonably other areas of legal activity. Are legal
precise characterization, legal assis- assistants, for example, allowed to
tants can become unwittingly represent clients at administrative
ensnared in this controversial area of hearings? Some states authorize
ethics if they do not use precaution. representation by legal assistants and
Debt collection is one of those areas of other nonlawyers at administrative
legal practice that skirts the edges of hearings and others do not. The
unauthorized practice for legal assis- federal government allows nonlawyers
tants. For that reason, we need to to practice in some of its
consider how the courts have defined administrative agencies, such as the
what constitutes the practice of law. Social Security Administration and the
Some unauthorized practice of Small Business Administration. Some
law cases do attempt to define the states allow legal assistants to attend
practice of law, but most do not; real estate closings and the execution
therefore, we shall consult one of the of wills without attorney supervision.
more helpful treatises on ethics, Freelancing by legal assistants
Charles Wolfram’s treatise Modern (serving as independent contractors)
Legal Ethics (1986). Wolfram’s is becoming more common as some
synthesis of the case law on this legal assistants have moved beyond
subject indicates that most courts rely offering litigation support services for
on one of three tests: (1) whether the attorneys and began offering their
activity involves professional services directly to the public. In some
judgment, that is, the skills and states this increasing independence of
training unique to lawyers; legal assistants has come under
(2) whether the activity is traditionally criticism by those who perceive this
performed by lawyers; and encroachment on the territory of
(3) whether the activity is essentially attorneys as a disservice to the public.
legal in nature or is incidental to a Routine debt collection is form-
business routine (e.g., filling out legal intensive work that is highly
documents related to a real estate structured and computerized and
transaction and for which no separate requires little attorney input. For this
fee is charged is not the practice of reason many attorneys who specialize
law). Those activities that clearly in debt collection rely heavily on legal
constitute the practice of law are assistants. But because at least one
representing clients in court, state (Illinois) has limited the practice
conducting depositions, giving legal of legal assistants in collection
advice, and signing pleadings. Those agencies, you would be well advised to
areas that clearly fall within the realm consult the statutes and case law in
of legal assistant practice include your state before engaging in any
drafting pleadings, preparing standard activities that may be considered the
form documents, serving as a liaison practice of law.
with clients, carrying out legal and
PRACTICE POINTERS
Locating Assets of Judgment Debtors
Once you have obtained a final judgment against a defendant (or against the
plaintiff on a counterclaim or an award for attorney’s fees and/or costs) the
process of collecting on the judgment begins. Many states have enacted the Uni-
form Enforcement of Foreign Judgments Act, or some amended version, that al-
lows for the registration of any judgment not entered by that state’s courts to be
registered, and enforced, as if the judgment was rendered by that state’s court.
Usually before, but certainly after registration of the judgment, the county
recorder’s records should be checked to see if any real property is held in the
county by the judgment debtor. The county assessor’s records should also be
checked for records of certain personal property (such as mobile homes) and
to give an idea of the value of the property.
The state’s corporation commission should always be reviewed for cor-
porate debtors to make sure they are still lawfully doing business. In many
states some “bare-bones” financial records are part of the corporation’s an-
nual report. Usually the names of officers and directors, and their addresses,
are also available.
Databases can be searched to find out if an individual defendant is a share-
holder or officer or director of a corporation or a partner of a partnership or
member of an LLC. Many states that mandate disclosure, however, require that
only 10 or 20 percent or greater equity owners be listed.
If your state registers LLCs and partnerships at the corporation com-
mission, you can find information on the entity at the commission. Some
state’s make it the responsibility of the secretary of state to maintain entity
information.
Checking the secretary of state’s office for UCC (uniform commercial
code) filings can help determine if the debtor has borrowed money using per-
sonal property as collateral. If the debtor has made secured loans on personal
property she should be listed as the secured party on the UCC-1 financing
statement. This type of information can be especially helpful if your other ef-
forts turn up empty. You could subpoena the file of the secured creditor to de-
termine what assets were listed by the debtor to obtain the borrowed funds.
As the Internet becomes more sophisticated, new search engines are sure
to be developed to assist in locating assets and the current engines refined to
be of greater assistance.
TECHNO TIP
When searching for the assets of debtors, do not have a “John Doe” preceding it.
do not forget to search the debtor’s and All possible combinations should be used
his spouse’s (if there is one) names sepa- if you are not positive how the search
rately. Some search engines (both on the engine functions; that is, “John Doe and
Internet and governmental database en- Jane Doe,” “Jane Doe and John Doe,”
gines) often search for the exact search “John and Jane Doe,” “Jane and John
term submitted. If the phrase “John Doe Doe,” “John Doe,” “Jane Doe,” “Doe,
and Jane Doe” is used, many search en- John,” “Doe, Jane,” etc.
gines will not list any “Jane Doe” hits that
S U M M A RY
The entry of judgment marks the end of the trial phase of a lawsuit but not nec-
essarily the end of the dispute. If the judgment is in favor of the defendant for
costs but not for attorney’s fees, the plaintiff has the option of giving up or ap-
pealing. The situation is more complicated if the judgment involves a signifi-
cant amount of money. In that case the judgment creditor may try to collect
the monies awarded in the judgment and the judgment debtor may appeal.
A judgment creditor can begin collection proceedings immediately after
the judgment is entered unless a motion for a new trial has been filed or a stay
has been obtained. A stay can be obtained by posting a supersedes bond or it
occurs automatically when a judgment debtor files bankruptcy. In federal court
a ten-day waiting period is required before collection proceedings can begin.
Collectibility of a judgment is a key fact of litigation. Prior to filing suit, the
plaintiff should take steps to ensure that a judgment can be collected. A judg-
ment can probably be collected against a defendant corporation that appears
solvent or a defendant that has sufficient insurance coverage. If a plaintiff can
prove that punitive damages are justified, she is warranted in doing discovery
that will reveal the defendant’s assets. A judgment debtor’s property and
wages are protected to some extent by exemption statutes but the judgment
can be executed through the seizure of any nonexempt property.
A judgment debtor’s examination is used to determine the assets of a judg-
ment debtor. These exams may be conducted at the court under the indirect
supervision of a court officer or at the office of the attorney representing the
judgment creditor. These exams are similar to a deposition; a court reporter
may or may not be used. Judgment debtors are often summoned using a sub-
poena duces tecum so that they bring the documents containing the informa-
tion necessary to locate and seize the debtor’s assets. Tenacity is required
when dealing with corporations of any size because they often do all they can
to stonewall the process.
A judgment lien must be obtained before executing on real estate. This lien
arises automatically in some states when the judgment is entered and must be
recorded with the county recorder in other states. The judgment creditor can
then file a suit for foreclosure, have the property sold, and apply the proceeds to
the judgment. This process becomes more complicated if others also have rights
to the property or if the property in question is the judgment debtor’s home. Judg-
ment creditors are strongly urged to record a judgment in the county recorder’s
office of every county in which the judgment debtor may own real estate.
To execute on tangible personal property a writ of execution must be ob-
tained from the court clerk. As a practical matter these writs are of little value
because by the time they are issued judgment debtors have often hidden or
disposed of the property, the judgment debtor can refuse to allow the sheriff
to enter his property when the sheriff arrives to levy on the property, and most
such property is unlikely to sell for much at an auction.
The best assets to execute on are money and other financial assets that
can be easily traced, such as bank accounts. To execute on a bank account, a
writ of garnishment must be filed. The same procedure is used to seize a judg-
ment debtor’s wages; the procedures for garnishment vary from state to state.
To execute any judgment, a copy of the final judgment must be presented.
If the judgment comes from a court in the same state, a certified copy from the
court clerk that issued it will suffice. If the judgment comes from a state other
than the one in which the judgment creditor is seeking to execute property,
the procedures can be more complicated; in some states it is necessary to sue
on the judgment by filing another lawsuit.
Judgment debtors can escape paying judgments by converting their as-

sets into exempt assets (which can be done even after a judgment is entered),
by filing for bankruptcy, or by moving to another state or foreign country. Do-
ing the latter does not prevent the judgment creditor from pursuing the judg-
ment but makes it more difficult and expensive to do so. Debtors can avoid
personal liability by incorporating although the corporate shield does not pro-
tect lawyers and doctors from being liable for malpractice. Exemption laws do
not apply to businesses and creditors can reach judgment debtors who have
declared Chapter 11 bankruptcy but they are delayed in satisfying their judg-
ment. Judgment debtors who are involved in fraudulent conveyances can frus-
trate judgment creditors (even though such transfers are illegal) by requiring
them to get a judgment against the individual to whom the property was given.
Collection of judgments is rarely a problem in personal injury practice be-
cause the target of litigation is almost always an insurance company. Collec-
tion problems often do arise in commercial litigation, however, because the
targets are often able to afford the considerable effort required to escape pay-
ment. Attorneys with debt collection practices often rely extensively on legal
assistants because of the high volume and routine nature of their cases.
Appellate courts will reverse or modify a trial court’s judgment if they be-
lieve reversible error has been committed. Reversal usually requires a new
trial, although an appeals court may simply instruct the trial court to enter a
different decision if the record reveals what the decision should have been.
Appellate courts review the process followed by the trial court and not the out-
come; therefore, they will not substitute their judgment for that of the jury. Ap-
pellants must specify the errors they believe were committed at the trial level;
the appellate court will not comb the record looking for errors. Appellees also
have an opportunity to file cross-appeals. Appeals cannot be taken before a fi-
nal judgment is entered. Interlocutory appeals are prohibited out of a desire
to prevent appeals from being made on a piecemeal basis. In the federal courts
a trial judge can “certify” a ruling for immediate appeal if the ruling is very im-
portant and the judge has some doubt regarding the correctness of her ruling.
To initiate an appeal the appellant must file a notice of appeal with the
clerk of the trial court. The trial court must then transmit the trial record to
the appellate court. The parties can indicate the parts of the record they in-
tend to use in the appeal so that not all of the record has to be transmitted.
The court reporter prepares a transcript of the testimony. Once the record is
transmitted, both parties submit written briefs, which must conform to strict
stylistic rules and fall within designated page limits. The appellant’s opening
brief is followed by the appellee’s responding brief, which is followed by the
appellant’s reply brief. Several months or even years may transpire after the
appeal is at issue until the appellate court hears the appeal.
Appeals are typically heard by panels of three judges. Each of the judges
has one or more law clerks who read the briefs, research the issues, and make
recommendations to the judge. Oral arguments, which may be waived by the
parties, are formal arguments made within strict time limits during which the
attorneys must respond to pointed questions posed by the appellate judges.
After oral arguments, the judges meet in conference, make a decision, and as-
sign one of the judges to write an opinion. Other judges may prepare concur-
ring or dissenting opinions. Copies of the opinion are sent to the attorneys and
a mandate is issued to the trial court. The party who loses the appeal can try
to appeal to the state supreme court although supreme courts usually deny
such requests. If the supreme court denies review, the mandate of the court of
appeals stands.
KEY TERMS
Authorities Judgment debtor’s examination Reply brief

Cross-appeal (debtor’s exam) Responding brief
Execution Judgment lien Reversible error
Fraudulent conveyance Judgment proof Stay
Garnishment Lien Supersedes bond
Interlocutory appeal Mandate Writ of execution
Judgment creditor Notice of appeal
Judgment debtor Opening brief
Workshop Alert
The following workshop correlates well with this chapter and you would be well advised to work with it.
Workshop 18 How to Obtain a Judgment
REVIEW QUESTIONS
1. What is the relationship between a judgment 7. How does one execute on tangible personal
creditor and judgment debtor? property?
a. How does a judgment creditor obtain a writ
2. How are appeals and collections connected?
of execution?
3. Must a judgment creditor wait before an appeal is b. Why are writs of execution on tangible per-
decided before being able to collect a judgment? sonal property often worthless?
a. How can a judgment debtor prevent a judg- 8. What are a judgment creditor’s best targets
ment creditor from collecting a judgment? and why?
b. How can a judgment debtor obtain a stay? a. How does one execute on a bank account?
c. How does a supersedes bond protect a judg- b. What does a writ of garnishment provide?
ment creditor and assist a judgment debtor?
9. Why is it difficult to execute on property in state
4. How can a plaintiff determine whether he will B if a judgment was obtained in state A?
be able to collect a judgment against a defen-
dant? Is it reasonable to assume that one can 10. Why is it said that winning a judgment is only
collect on a judgment levied against a defen- half the battle?
dant who is working? Why or why not?
11. How does the corporate entity protect individ-
5. What occurs at a debtor’s exam? Why is a sub- uals from paying judgments?
poena duces tecum often used to summon a a. How can a corporate entity discourage col-
judgment debtor to a debtor’s exam? lection efforts by a judgment creditor?
b. How can an individual protect herself
6. What is meant by executing on a piece of real
against collection efforts by a judgment
property?
creditor?
a. How does one execute on real estate? c. What is a fraudulent conveyance and how
b. How does a judgment lien help a judgment does it relate to collections?
creditor to collect a judgment?
c. What is the potential problem with judgment 12. Why are paralegals ideally suited for debt col-
liens? lection practice?
13. Does the fact that a trial court erred necessarily b. How do appellate court opinions shape the
result in a reversal? Why or why not? common law?
a. In general is an error committed by a jury c. What is a court of appeals mandate?
considered reversible error? 18. How likely is a state supreme court to review a
b. Does a court of appeals review the outcome court of appeals decision?
of a trial or the trial process?
19. How does the speed of the appellate process
14. Is an appellant necessarily a defendant and an compare with the speed of trial practice?
appellee necessarily a plaintiff? Explain.
20. Use the following sets of words in a single sen-
15. What is an interlocutory appeal? tence:
a. Why are interlocutory appeals usually pro- a. Judgment creditor; stay; supersedes bond;
hibited? appeal
b. Under what conditions will a trial court cer- b. Judgment lien; writ of execution; garnish-
tify a ruling for immediate appeal? ment; fraudulent conveyance
16. When does the appeal process begin? c. Appellee; reversible error; cross-appeal;
a. What happens once a notice of appeal is mandate
filed? d. Notice of appeal; appellant’s opening brief;
b. What are the three types of briefs and when interlocutory appeal; harmless error
are they prepared?
17. Do all members of the court of appeals hear
each case?
a. How are appellate arguments organized?
PRACTICE EXAM
1. Once a judgment is entered c. is often an insurance contract from an ap-

a. the defendant may agree to cancel a judg- proved insurance company.
ment for costs if the plaintiff agrees not to d. cannot be in the form of cash.
appeal. 4. To determine a defendant’s financial status
b. the judgment creditor can begin collection a. a plaintiff should determine the extent of the
proceedings but must wait for at least one defendant’s insurance coverage.
month. b. a plaintiff should allege punitive damages so
c. the judgment creditor should appeal. that he is automatically entitled to review
d. the judgment debtor can file an appeal even the defendant’s financial records.
if a motion for a new trial is pending. c. a plaintiff should conduct extensive discov-
2. A stay ery into the defendant’s property assets and
a. is a court order that allows a judgment cred- wages.
itor to begin collection proceedings. d. none of the above.
b. can be obtained by posting a supersedes bond. 5. Debtor’s exams
c. is terminated when the judgment debtor a. can be held only at the courthouse.
files for bankruptcy. b. are supervised by an officer of the court who
d. all of the above. personally manages the debtor’s examination.
3. A supersedes bond c. are always transcribed by a court reporter.
a. guarantees that the money will be available to d. consist of questions about the debtor’s in-
the judgment debtor when the appeal is over. come and expenses.
b. does not require any form of security.
6. A judgment lien 9. Judgment debtors

a. may arise automatically when a judgment is a. cannot protect their assets by converting
entered. them to exempt assets.
b. may not arise until the judgment is recorded b. are not protected by the corporate shield if
at the county recorder’s office. they are doctors or lawyers.
c. may have to be foreclosed by the judgment c. are not allowed to file bankruptcy and
creditor. thereby escape paying a judgment.
d. all of the above. d. are protected from a paying a judgment if
they move to another state because judg-
7. Writs of execution on tangible property
ment creditors cannot pursue assets in an-
a. are seldom useful because once they are ob- other state.
tained the judgment debtor has already dis-
posed of or hidden the property. 10. An example of reversible error is
b. allow the sheriff to search the judgment a. failure to give a jury instruction that should
debtor’s property without the debtor’s per- have been given or misstating the law in a
mission. jury instruction.
c. must be prepared by a judge. b. error on the part of the jury in rendering its
d. all of the above. decision.
c. refusing to allow evidence that should have
8. To execute on a judgment
been admitted or admitting evidence that
a. the judgment creditor must first realize that should not have been admitted.
not every state gives “full faith and credit” to d. a and c.
judgments of other states.
b. the judgment creditor must file a whole new 11. Once the appellant files an opening brief
lawsuit. a. the appellee files a reply brief.
c. the judgment creditor must be able to pro- b. the appellant has no more opportunities to
duce a final judgment that is recognized by respond to the appellee.
the clerk of the court or the county recorder. c. the parties have an opportunity to make oral
d. all of the above. arguments almost immediately.
FILL IN THE BLANKS

12. Entry of _______________ marks the end of the _______________ bond, which is a promise to pay
trial phase of a lawsuit. accompanied by some form of security.
13. The party to whom money is awarded in the 15. Seizing a judgment debtor’s property and
judgment is called a _______________ , while the applying it to pay a judgment is called
party that is ordered to pay money is called a _______________ .
_______________ . 16. The objective of a _______________ is to find
14. A _______________ is a court order prohibiting money or property of the judgment debtor.
the judgment creditor from initiating collection 17. A _______________ is a security interest that
proceedings. It can be obtained by filing a provides the right to sell property to pay off a debt
and when it comes from recording a judgment it is 24. The appellate process begins when the
called a _______________ . _______________ , the party filing the appeal, files a
18. A _______________ directs a sheriff to levy on _______________ , a one-page paper that says an
tangible property and sell it at public auction. appeal is being filed. The _______________ , the
19. A _______________ is a court order directed to party responding to the appeal, is then on notice
the person who owes the judgment debtor money; that an appeal has been filed.
this process is used to execute on bank accounts. 25. The appellant files an _______________ brief,
20. A judgment debtor who transfers his assets to which consists of arguments citing
someone else, leaving himself with insufficient _______________ (statutes and case law); in
assets to pay a judgment is said to have carried response the appellee files a _______________ brief,
out a _______________ . arguing to the contrary; and the appellant then
21. An appellate court will reverse a trial court if it files a _______________ brief in which she answers
commits some kind of _______________ error but any new arguments raised in the appellees’ brief.
not it if commits a _______________ error. 26. Once the court of appeals completes its
22. When the loser in a lawsuit files an appeal, the opinion, it issues a _______________ instructing the
winner frequently will file a _______________ . trial court what it is to do.
23. _______________ appeals, which are appeals
taken before a final judgment is entered, are
generally prohibited.
TRUE OR FALSE
27. Appeals and collections are separate processes 33. Winning a judgment automatically results in a
although they are related strategically. T F plaintiff getting paid. T F
28. A judgment creditor can begin collection proce- 34. Because insurance coverage is discoverable,
dures immediately although in federal court a ascertaining the extent of coverage can be used
thirty-day waiting period is required. T F to help determine if any judgment would be col-
lectible. T F
29. A judge can require a judgment creditor to wait
to begin collection proceedings until a motion 35. Exemption statutes allows judgment creditors
for a new trial has been decided. T F to strip judgment debtors of all but the neces-
sities of life. T F
30. An insurance company will probably not issue a
supersedes bond to an entity that has few assets. 36. Under federal law a judgment creditor can seize
T F at least one-half of a judgment debtor’s wages.
T F
31. A supersedes bond allows a judgment debtor to
retain its money while pursuing an appeal and 37. A subpoena duces tecum is often used to sum-
guarantees the judgment creditor that the mon the judgment debtor to the debtor’s ex-
money will be available after the appeal amination. T F
process is completed. T F
38. Tenacity is often required in conducting a
32. Filing for bankruptcy will result in an automatic debtor’s examination of a major corporation.
stay of all proceedings against a judgment T F
debtor. T F
39. Having a judgment lien guarantees the judg- 53. Despite the fraudulent conveyance laws, judg-
ment creditor of being paid. T F ment creditors will often find it expensive and
burdensome to seize assets once the judgment
40. In some states a judgment creditor with a judg-
debtor has transferred them to someone else.
ment lien has to file suit for foreclosure and ob-
T F
tain a court order requiring the sheriff to sell
the property at auction. T F 54. The collection of judgments is frequently a
problem in personal injury litigation but rarely
41. A judgment creditor should record a judgment in
a problem in commercial litigation. T F
the county recorder’s office of every county in
which the judgment debtor may have real estate. 55. Legal assistants are utilized extensively by at-
T F torneys who specialize in debt collection.
T F
42. One of the best assets to execute on is bank ac-
counts. T F 56. If an appellate court reverses a decision of the
trial court, the case must be retried. T F
43. A judgment creditor cannot collect on a debt
owed to a judgment debtor through the process 57. An appellate court will not reverse or modify a
of garnishment. T F trial court’s judgment if the trial court commit-
ted harmless errors. T F
44. If a judgment creditor has a judgment from a
state other than the one in which the debtor’s 58. An appellate court will reverse a trial court de-
property is located, the judgment creditor need cision if it would have reached a different ver-
only produce a certified copy of the judgment dict than the jury did. T F
to the clerk of the court in the target state in or-
der to execute on the judgment. T F 59. Part of the appellate court’s task is to comb
through the record looking for errors. T F
45. Not every state gives “full faith and credit” to
the judgments of other states. T F 60. Only the losers in lawsuits file appeals. T F
46. Each state has its own procedures regulating 61. Interlocutory appeals are never allowed. T F
the registration of judgments. T F 62. Federal court judges can “certify” a ruling for
47. One of the main reasons for forming corpora- immediate appeal if they believe the ruling is
tions is that in the event of a lawsuit the corpo- important and that they may have erred in mak-
ration rather than the shareholders are liable. ing that ruling. T F
T F 63. The procedural rules that control the appellate
48. The corporate shield does not protect lawyers process are different from but nearly as exten-
and doctors from being personally liable for sive and complicated as those controlling the
malpractice. T F trial process. T F
49. A judgment debtor cannot take assets that 64. The parties have a right to designate the parts
could be seized and convert them into exempt of the record they intend to use on appeal.
assets after a judgment has been entered. T F
T F 65. Preparation of the record is relatively straight-
50. Exemption laws do not apply to business entities. forward and often completed in a few days.
T F T F
51. When a judgment debtor files Chapter 11 bank- 66. Briefs are very similar in style and content to
ruptcy the judgment creditor finds it easier to trial court motions. T F
get the judgment paid. T F 67. Once the appeal is at issue the appellate court
52. Judgment debtors can legally escape paying a will hear oral arguments almost immediately.
judgment by “gifting” their assets to a family T F
member. T F 68. Appeals are almost always heard by panels of
three judges. T F
69. Appellate judges usually have one or more law 73. Concurring opinions agree with the reasoning of
clerks who read the briefs, research the issues, the majority opinion but disagree with the result.
and make recommendations to the judges. T F
T F
74. The parties are usually informed of the appellate
70. Oral arguments are heard in every case. T F court’s decision within days of oral arguments.
T F
71. Oral arguments are relatively informal affairs in
which the judges ask the attorneys to respond 75. In most cases the state supreme court refuses
to questions they have about their briefs. to consider issues brought before it and the
T F mandate of the court of appeals stands. T F
72. After oral arguments the judges meet in confer- 76. Most briefs are researched and written by at-
ence and assign one of the judges to write the torneys rather than legal assistants. T F
opinion. T F
LITIGATION LINGO
Unscramble the following words:
1. YOURNITELCTOR An appeal that is heard before a final judgment is entered
2. YAST Court order prohibiting judgment creditor from collecting on judgment
3. DESREPUSSE DONB Promise to pay accompanied by some form of security
4. RAGSHIN What can be done to a judgment debtor’s bank account or wages
5. TENLUARFDU YENEVOCACN Illegal transfer of property by judgment debtor to avoid paying judgment
6. BELVERIRES Type of trial court error that will result in appellate court changing
trial court judgment
7. EPELPALE Party responding to appeal
8. LYPER Brief prepared by appellant
9. DMATENA Order telling trial court what to do next
10. TOXICENEU Process of seizing debtor’s property and applying it to pay judgment
11. ROFOP Judgment debtor with no assets is said to be “judgment _____”
12. MAXEAOTININ Asset discovery begins with this
13. NIEL Security interest similar to mortgage
14. SETUHROTIAI Statutes and case law cited in appellate brief
the question.
1. After reading this chapter, what would you want d. Suppose the tenant gives this vehicle to his
to ascertain before suing the drunk driver who brother shortly after you obtain your judgment
damaged your vehicle? Suppose you discover against him. Would this be considered a fraud-
that he is underinsured but that he has just be- ulent conveyance under the laws of your state?
gun working as a salesman for a major com-
4. Suppose you obtain a judgment against the con-
puter firm. What would you have to do under
tractor who built your house and two of the
the laws of your state to garnish his wages?
subcontractors and that the contractor files for
2. Suppose you get a judgment against the corpo- Chapter 11 bankruptcy. Will you be able to col-
ration that owns the karate school employing lect anything from the contractor?
the karate instructor who negligently hit you. a. What procedures must you follow to collect
What procedures must the corporation follow if on this judgment?
it wants to prevent you from collecting on the b. What must you do to arrange a debtor’s ex-
judgment immediately? amination of the two subcontractors?
a. What must the corporation do to initiate an c. Suppose one of the subcontractors owns the
appeal? building in which his business is housed.
b. During what time frame must the corpora- i. How would you go about obtaining a judg-
tion submit an opening brief? ment lien on this property?
c. What are the page limits for each of these ii. What would you have to do foreclose on
briefs? this judgment lien?
d. What format is required for these briefs? Must 5. Suppose that during the trial involving your dis-
there, for example, be a table of contents and pute with your cousin that the trial judge makes a
a table of authorities? Must they be bound? ruling that is critical to your case and that raises
e. How many judges will hear your oral argu- an issue that is novel in your state. You want to
ments (assuming you have oral argument)? appeal this ruling before the trial goes on because
3. Suppose you obtain a judgment against your a change in this ruling could easily alter the out-
tenant. What options do you have in collecting come of the case. What would you have to do in
on this judgment? order to go forward with this appeal before the
a. Suppose the tenant owns a vehicle that is con- end of the trial?
sidered a collector’s item and that is in excel- Suppose your cousin has countersued you on
lent condition. What procedures would you what you believe are totally frivolous grounds.
have to follow to execute on this property? You move to dismiss these claims but the trial
b. Would this vehicle be considered exempt in judge refuses to dismiss them. Do you have any re-
your state? course to the court of appeals or must you simply
c. What procedures would the sheriff have to expend the time and energy defending yourself
follow in seizing and selling this vehicle? against claims you know to be nonmeritorious?
1. Consider each of the situations represented in c. Cousin refuses to pay you a percentage of
the hypos presented in Chapter 1. What poten- his business.
tial obstacles to collection can you conceive of d. Karate instructor breaks your nose.
in each case? What might you do if you were the e. Contractor does shoddy work on house.
defendant in those cases to protect yourself 2. What would you do to expedite the appeals
against collection? process? Would you focus on restricting ap-
a. Drunk driver sideswipes your car. peals or streamlining the process?
move out.
Claims and Their
Elements
WORKSHOP
1
INTRODUCTION: THE SUBSTANTIVE law enforcement officer (2) for a proper purpose.
BUILDING BLOCKS OF A LAWSUIT Therefore, even if Shannon proves all elements of
the tort of false imprisonment, the Las Vegas Police
Everyone knows that to win a lawsuit as a plaintiff, Department can escape liability by proving that
you must “prove your case.” But what, exactly, is Sergeant Marnell is a law enforcement officer and
this “case” that you have to prove? Do you simply that she detained Shannon for a proper purpose
get the witnesses to tell what happened, and let the (i.e., to investigate the shooting).
jury take it from there? Or are there specific things
that you must prove in order to win? A Lawsuit Is Made Up of Claims—In a lawsuit,
the plaintiff will be trying to prove one or more
What a Cause of Action Is—This workshop pro- claims. Each claim in the lawsuit represents one
vides the answers to these questions. We will see distinct cause of action—one combination of cir-
that what the plaintiff must prove is something cumstances that the law recognizes as actionable. A
called a cause of action. Not all of the unpleasant simple lawsuit may be based on a single claim; a
things that people do to each other will support a complex one may have a dozen or so. When the
lawsuit—only those particular categories of wrong- facts will arguably support claims based on more
ful acts that the law recognizes as actionable wrongs than one cause of action, it becomes a matter of
will suffice. You might think of a cause of action as a strategy whether to limit the case to the best and
kind of checklist that is used to determine whether easiest to prove, or whether to “shotgun” with
the facts of a particular case fall within one of the ac- every cause of action that might conceivably apply.
tionable categories. The individual items on the One or many of the claims and their elements
checklist are called elements of the cause of action. are the building blocks of which the lawsuit is
A simple example may make this clearer. In our made. They define the specific things that the plain-
hypo, suppose Shannon wants to sue the Las Vegas tiff will try to prove and the defendant will try to dis-
Police Department for false arrest. Obviously, not prove. The concepts covered here will appear again
everyone arrested by the police is entitled to sue. and again, because the whole purpose of proce-
We do some legal research and find that the law rec- dural law is to provide an orderly way of proving or
ognizes a tort called false imprisonment. We dis- disproving claims. An understanding of what claims
cover that the elements of false imprisonment are are is essential at nearly every stage—studying civil
(1) confinement (2) which is intentional, and (3) the procedure without understanding what claims are
person confined is aware of the confinement or would be about like trying to study bricklaying
harmed by it. Therefore, Shannon would have to without knowing what a brick is!
prove that she was confined; that the police in- Figuring out what causes of action might apply
tended to confine her; and that she was aware of be- to your fact situation, and what the elements of
ing confined. each of those causes of action are, is something that
If Shannon fails to prove one of these required must be done in every lawsuit. Everything else you
elements, she loses (as to that cause of action; there do during the rest of the lawsuit depends on getting
can be more than one in the same suit). One of the this one thing right. As we will see in later work-
common ways to defend a case is simply to try to shops, the complaint must specifically set out each
convince the judge (by motion for summary judg- element of each cause of action on which you are
ment) or jury (at trial) that one of the required ele- suing; the complaint can be dismissed if an element
ments of the cause of action has not been proved. is left out. If the defendant can persuade the court
Another way for the defendant to win is to that it is impossible for the plaintiff to prove one of
prove an affirmative defense. Affirmative defenses the elements, the court may grant a motion for sum-
work exactly like causes of action: They are made mary judgment, ending the suit then and there. At
up of elements that you find by researching the sub- trial, failure to prove each element can lead to a di-
stantive law. In our example, one affirmative de- rected verdict against the plaintiff. When the case
fense to the tort of false imprisonment is called goes to the jury for decision, the jury’s function,
privilege (or sometimes justification). We research aided by instructions from the judge, will be to de-
the elements of the defense of privilege and find cide whether the plaintiff has proved each of the el-
that a confinement is privileged if it is (1) done by a ements of a cause of action.
222 WORKSHOP 1 Claims and Their Elements
common law. Many of the more commonplace

SIDEBAR causes of action were invented in the English law
courts and have been around for centuries. Others
Claims, Causes of Action, have been added or modified by American courts,
and Theories of Liability usually at the appellate level. If the highest appel-
late court in a state (usually the state supreme
These three terms—claim, cause of action, and court) declares that there is a cause of action for,
theory of liability—are often used somewhat in- say, putting anchovies on a pepperoni pizza, then,
terchangeably. All involve a single concept, namely, at least in that state, there is one! Because of this
a way of testing a specific set of facts to see whether power of appellate courts to modify causes of ac-
it is appropriate for the court to step in and make tion and invent new ones, the list of what things are
someone pay. actionable is constantly changing.
If the defendant’s act (or failure to act) is of a Legislatures also have the power to create
kind that the law recognizes as an actionable causes of action. Many of the causes of action in
wrong, then a lawsuit can be sustained. When we technical areas of the law (i.e., securities fraud, com-
say that a particular set of facts is actionable, we mercial law, banking law) have been created by state
mean that there is some cause of action that ap- legislatures or by Congress.
plies to it and that each of the elements of that An enormous amount of study and experience
cause of action is present. Theory of liability usually is required to become expert in the causes of action
refers to the rationale offered by the plaintiff for that apply to a single area of the law (say, environ-
why the court should hold the defendant liable. As mental law). Common law torts like battery or false
a practical matter, theories of liability that are not imprisonment are relatively simple to understand
based on recognized causes of action do not usu- and apply, but statutory causes of action in techni-
ally get very far, so the two terms mean essentially cal areas can be unbelievably complex. Learning
the same thing. what causes of action are applicable in various ar-
A claim is an assertion of liability based on a eas of the law is a great deal of what a law school ed-
single cause of action and made in an actual law- ucation is devoted to.
suit. Again, because a claim is an assertion of a
cause of action, the two terms have similar mean- THE ISSUES OUTLINE
ings. Thus, the judge may ask, “What claims has
A client comes into your office with some “story” and
the plaintiff alleged?” or “What causes of action
wants you to file a lawsuit against someone. How do
has the plaintiff alleged?” or even “What theories
you decide what causes of action might apply?
of liability has the plaintiff alleged?”
One way—though not a particularly good
way—is simply to listen and see what causes of ac-
tion jump into your mind. These will doubtless be
causes of action whose elements you are quite fa-
Where Do Causes of Action Come From?—We
miliar with and which you can apply from memory.
have already seen several examples of causes of ac-
If your entire practice consists of, say, automobile
tion: If a defendant has a duty to the plaintiff, and
negligence suits, this approach may actually work
breaches that duty, and the breach causes dam-
most of the time.
ages, that is “negligence”; if the defendant confines
For more complicated situations, though, you
the plaintiff, and does so intentionally, and the
need a more systematic approach—a way of making
plaintiff is aware of or damaged by the confinement,
sure you have not overlooked any potential causes
that is “false imprisonment”; if the defendant
of action, a way of making sure you have checked
touches the plaintiff, and does so in a manner that
each element.
is offensive or harmful, that is “battery”; and so on.
The law recognizes many causes of action—a few
dozen commonplace ones and scores of more eso-
teric or specialized ones. The Issues Outline:
Where do all these causes of action come from?
More importantly, how do you find out about them?
Step-by-Step Instructions
Are they all listed in a book somewhere? Who gets Hence, the issue outline. The issue outline is an
to invent new ones? outline of each of the possible causes of action
Unfortunately, there is no “bible” you can go to and their elements as applied to the facts of your
that lists every cause of action. Causes of action case, designed to foster a systematic, element-by-
have several sources. One is the courts, via the element analysis of the case. Do real lawyers
WORKSHOP 1 Claims and Their Elements 223
Figure W1–1 The Issues Outline
Step 1: Make a List of Possible Theories of Liability

Step 2: Determine the Elements of Each Theory of Liability
Step 3: Determine What Defenses May Apply
Step 4: Determine the Elements of Each Defense
Step 5: For Each Element of Each Cause of Action and Each Defense, List Each Fact Supporting It
Step 6: For Each Fact, List Each Item of Evidence Supporting It
actually do this? Most emphatically, yes. In com- office. Therefore, do not hesitate to modify the for-
plex cases, even very experienced litigators rou- mat, layout, or organization in whatever way may
tinely go through the process described in this improve its usefulness for your particular project.
chapter—the mechanics may vary, some of the In particular, you may want to start each new cause
steps may be delegated to clerks, but the thought of action on a new page so as to be able to insert ad-
process is essential. In simple cases, experienced ditional matter as you research. The steps for cre-
litigators may not need the issue outline process ating an issues outline are listed in Figure W1–1 and
in every case, but that is merely because they discussed in more detail next.
have already done it in so many similar cases that
they can now do it in their heads! Make a List of Possible
A properly prepared issues outline will yield Step 1 Theories of Liability
rich dividends as the case proceeds, and you will re-
visit it again and again. When you draft the com-
plaint, it will provide a reliable way to be sure that We will begin simply by listing every cause of action
each claim states a valid cause of action, with no el- we can think of that might possibly apply. If we have
ements inadvertently left out. When the defendant a “collection” of causes of action in a notebook
moves for summary judgment, you will immediately somewhere (see Figure W1–2), we can go through it
be able to zero in on the issue and focus your re- one by one to jog our memories. If the facts of the
search. The issues outline will make clear exactly case fall within some recognized branch of the law
what facts you must prove, thus serving as a frame- (i.e., tort, contract, securities law, or commercial
work on which to base your discovery plan. Even at law) we may skim through the table of contents of a
the end of the case, when you are drafting jury in- textbook on the subject so as to pick up any causes
structions, the issues outline will tell you what in- of action we may have overlooked.
structions you need and what points need to be We list each possible cause of action against
covered in each. each possible defendant. To do this, we must con-
Should the defendant make an issues outline? sider what people and what entities we might con-
Or can the defendant start with the causes of action ceivably sue.
alleged in the complaint and ignore anything else At this stage, we do not worry about whether we
that might have applied, thereby avoiding the addi- have the facts to prove a given cause of action, or
tional work of analyzing the case from scratch? whether the cause of action may have some element
Sorry; the defendant should always defend on that automatically ruins our case. If a cause of action
the assumption that the plaintiff will make the best is somewhere in the ballpark, we list it.
case possible under the circumstances. Complaints
can be amended. What if the plaintiff changes
Determine the Elements
lawyers in midstream, the new lawyer takes a fresh Step 2 of Each Theory of Liability
look, and suddenly the defendant is facing some
new theories? Furthermore, by analyzing the
causes of action for herself, the defendant can often Now we take each of the possible causes of action we
identify potential defenses that might otherwise be have listed and do whatever research is necessary to
overlooked. determine what its elements are. For well-established
The issues outline is not a court paper, it will common law torts like battery, this may be as simple
never be filed or seen by anyone outside your own as finding an authoritative source (the Restatement,
Figure W1–2 Causes of Action in Tort Cases
NEGLIGENCE
Duty Damages
Breach of duty Nature of damages
Reasonableness of conduct General
Causation Special
Actual (factual) Punitive
Nature of cause Extent of damages
Nature of harm Calculation of damages
Proximate Pain and suffering
Foreseeability Medical expenses
Intervening and superseding causes Property damage
Nature of the plaintiff Lost wages
Nature of harm caused Loss of consortium
Impaired earning capacity
Litigation expenses
DEFENSES TO NEGLIGENCE
Contributory negligence
Comparative negligence
Assumption of risk
INTENTIONAL TORTS
Assault Trespass to land
Intent Intent
Apprehension of harm Enter or remain unlawfully
Ability to carry out threat Contact with land
Battery Revocation of permission to enter
Intent Extent of liability
Harmful contact Trespass to chattels
Offensive contract Intent
False imprisonment Interference with chattel
Intent Actual harm
Confinement Conversion
Knowledge of confinement Intent
Emotional distress Interference with chattel
Intent Transfer of title
Outrageous conduct Extent of harm
Nature of emotional distress
DEFENSES TO INTENTIONAL TORTS

Consent Defense of others
Capacity to consent Extent of force
Scope of consent Imminent harm
Voluntariness Belief of actor
Defense of person Necessity of force
Extent of force Belief of person being defended
Imminent harm
Belief of actor
Necessity of force
Figure W1–2 Causes of Action in Tort Cases, continued

Defense of property Reentry on land
Extent of force Extent of force
Imminent harm Belief of actor
Belief of actor Purpose for entry
Necessity of force Consent of possessor
Duty to retreat Necessity
Request that intruder stop Purpose of invasion
Regaining possession of chattel Public or private interest
Extent of force Extent of invasion
Property wrongfully taken Damages
Belief of actor
Fresh pursuit
STRICT LIABILITY
Intent Defective products
Liability for animals Sale of product rather than service
Wild Nature of defect
Domestic Time defect existed
Abnormally dangerous activities Causation
Manufacture or sale by the defendant
Nature of the plaintiff (who can sue)
Nature of the defendant (who can be sued)
DEFENSES TO STRICT LIABILITY

Contributory negligence Assumption of risk
Comparative negligence Statute of limitations or repose
MISREPRESENTATION
Intent Plaintiff’s justifiable reliance
Intentional Nature of relationship between the plaintiff
Negligent and the defendant
Innocent Causation
Inducing reliance on misrepresentation Damages
DEFAMATION
Harm to the plaintiff’s reputation Publication
Intent of the defendant Truth or falsity of statement
Status of the plaintiff (public official or public figure) Damages
Interpretation of statement Privileged communications
NUISANCE
Substantial interference Extent of injury or interference with land
Effect on the plaintiff’s use of land Nature of damages
Plaintiff’s interest in land
Derived from the Restatement 2d, Torts.

as described in the next section, or an appellate case) For this and other tort causes of action, an ex-
and listing them. More complex causes of action, par- cellent starting point is the Restatement of the Law of
ticularly those based on statutes, may require con- Torts. The Restatement is an attempt by a committee
siderable research. of academic experts to summarize various tort
One caveat: For nonfederal causes of action, the causes of action and list their elements concisely.
elements can differ considerably from state to state. We might also consult a tort textbook such as
It is not enough to pull a general list of elements out Prosser on Torts. Still another place to look is in the
of some textbook without also checking the case law appropriate topic (such as “false imprisonment”) in
in your state for any important variations. a legal encyclopedia such as American Jurisprudence
or Corpus Juris Secundum. From sources such as
Your Local Notes these, we should be able to obtain enough informa-
tion to list the main elements of false imprisonment.
_________________________________________________
Then we refine our research by checking the
_________________________________________________ case law in our own state, for two reasons. One is
that substantive law varies from state to state, so we
want to be sure we are using the correct elements
How much detail? The answer varies from case for our state. The other is that the case law is where
to case. One of the reasons why we are making an is- we will find the detail necessary to resolve the subis-
sues outline and not an issues list is because issues sues (such as deciding what “confinement” means).
have subissues, elements have subelements. How Old fashioned as it may seem, the best way to access
do you decide whether the Las Vegas police are li- the case law for our purposes is via the West Digest
able to Shannon for false imprisonment? You apply system, because it is already organized in a way that
the elements of the cause of action for false impris- lays out the elements of the various causes of action
onment: confinement, intent, knowledge of confine- in an outline form. (We will visit this point again later
ment. But how do you decide whether the element in the chapter.) On-line research can also be used,
of “confinement” is present? How do you decide but cautiously! A computer search does not neces-
whether Shannon was “confined”? Did anyone tell sarily ensure that you have found every single ele-
her she could not leave? Was the door locked? What ment of the cause of action you are researching—
does the term confinement mean? If you research most of the cases you find will analyze one element
the law of false imprisonment, you will find cases in great detail, rather than listing all the elements.
that will answer these questions. What you will dis- For other causes of action not based on tort, the
cover is that just as “false imprisonment” has ele- approach would be similar, but using sources ap-
ments, such as “confinement,” “confinement” itself propriate to the cause of action and area of law in
has elements, and perhaps its elements have ele- question.
ments. Thus, after doing your research, you will fin-
Determine What Defenses
ish with an outline of elements and subelements Step 3 May Apply
that may go several levels deep.
How to Research Causes of Action and Their As we consult the various research sources to out-
Elements—Obviously, this is not the place for a line each cause of action, we will also be on the
treatise on legal research. We can, however, offer a lookout for any defenses specific to that cause of
few general suggestions to help with the issues out- action (for example, privilege or justification as a
line project. defense to false imprisonment). We list these in our
For a litigator or litigation paralegal, it is worth- outline under the causes of action to which they ap-
while to begin and maintain a collection of causes ply. As with the causes of action, at this stage we
of action, starting with the most common ones. A paint with a broad brush, listing any defenses that
notebook is useful for this purpose, with a divider might conceivably apply without worrying about
for each cause of action, followed by a summary of whether they can be proved or not.
its elements, a list of applicable defenses and their There are also affirmative defenses that may ap-
elements, and source material such as copies of apply to the entire lawsuit, rather than to individual
pellate cases providing more detail on how the ele- causes of action. FRCP, Rule 8(c), lists some of the
ments are applied. common ones. These include defenses that should
Where can you find the necessary information be considered in every lawsuit, such as statute of
about causes of action and their elements? Sup- limitations. [We will revisit Rule 8(c) in Workshop 8
pose, for example, that you want to determine the on drafting responsive pleadings. Your instructor
elements of the tort of false imprisonment. What will inform you of any local provisions similar to
sources should you consult? Federal Rule 8(c) applicable in your state.]
Most of the Rule 8(c) defenses involve techni- atic way from causes of action to elements to facts
calities that go beyond the scope of this introduc- supporting the elements, we provide ourselves with
tory chapter, so we will leave them for later. Keep in a checklist of facts to look for. As often as not, the
mind, however, that a proper issues outline should spectacular piece of evidence that wins the law-
list the elements of any applicable affirmative de- suit—the “smoking gun”—is not discovered by acci-
fenses in the same way that we list the elements of dent, it is discovered because someone realized that
the causes of action. If you represent the defendant, this particular piece of evidence could win the suit
you should always run through a checklist of Rule and went looking to see if it might exist. What, for ex-
8(c) defenses to be sure you have considered each ample, might really nail down the confinement is-
one. If you represent the plaintiff, you should do the sue? How about, “Emergency room doctor had to
same because you want to anticipate what defenses ask officer to remove handcuffs?” Did this happen?
your opponent is likely to raise. We do not know, at this stage, but now that we have
In addition to the Rule 8(c) defenses, several thought about it, we should certainly try to find out.
procedural defenses should be considered in every
lawsuit: jurisdiction of the person, jurisdiction of For Each Fact, List Each Item
the subject matter, venue, sufficiency of service of Step 6 of Evidence Supporting It
process, and indispensable parties. To some extent,
analysis of these defenses will have to await the fil- How is Step 6 different from Step 5? Facts and evi-
ing of the lawsuit because they depend in part on dence are not the same thing. A fact is some event
where and how it is filed. These defenses involve that happened; evidence is something we can use in
procedural issues that we have not yet covered, so court to prove that the event happened. “Shannon
we will leave them aside for now. tried the interrogation room door and it was
locked” is a fact. Shannon could testify in court that
Determine the Elements she tried the door and it was locked—her testimony
Step 4 of Each Defense would be evidence. If that were our only evidence,
we might be concerned, because all it would take is
Following the methods described in Step 2, we de- for a police officer to testify to the contrary—at this
termine and include in our issues outline the ele- stage, we have no idea what the police officer will
ments of each of the defenses we have listed. say—and suddenly our proof of this fact is a long
way from a slam dunk. We might look for other evi-
dence: Perhaps the lock on this door is designed so
For Each Element of Each Cause that it is always locked and requires a key to open,
Step 5 of Action and Each Defense, List in which case we could obtain the manufacturer’s
Each Fact Supporting It specifications for the lock.
At this stage, we have assembled very little ac-
Now we are ready to start tying the elements to our tual evidence. We take this opportunity to list, in
facts. Under each element of each cause of action, our outline, under each element of each cause of
we list every fact that we can think of that tends to action, all the evidence that we think we might be
prove or disprove that element. For example, under able to get, through investigation, discovery, or
the element “confinement” of the cause of action from the client. For example, under the “damages”
“false imprisonment,” we might list on the positive issue, we will need to prove the fact that Shannon
side such facts (if true) as “Shannon tried the door spent some specific amount of money for her emer-
to the interrogation room and it was locked,” or gency room treatment. As evidence of that fact, we
“Shannon asked to go to the bathroom and an offi- will need copies of the medical bills. We do not
cer was sent to accompany her” or “The police offi- have them yet, but we list them so that we will re-
cer told Shannon she was under arrest.” These facts member to obtain them.
would tend to show that she was not, in fact, free to
leave. On the negative side we might list (if true) Conclusion—Notice that we have still not at-
“While Shannon was at the emergency room, the ac- tempted to make judgments about which of our
companying officer left and came back an hour later causes of action will be used. We will do that as we
carrying a box of doughnuts.” prepare the complaint. At this stage, we are wearing
We list all the facts that we are aware of, regard- our “creative” hat, in keeping with our purpose of
less of whether we think we can prove them. We also trying to think of every possible approach that
list any important facts that we think could have might benefit us. Later, we will put on our “judg-
happened, both positive and negative, because we mental” hat and take a critical look at each cause of
will be using this list to guide our investigation and action, rejecting any that fail to advance our overall
discovery. By approaching the problem in a system- strategy.
The Issues Outline: Determine the Elements

Step 2 of Each Theory of Liability
Learning by Example
Next we research the elements of each of the causes
We now offer an example of the issues outline of action we have listed. The assault and battery
process, based on our Shannon hypo. We limit this causes of action are sufficient for illustration pur-
example to the potential claims against Dr. Collins, poses; in a real-life case, we would research the ele-
so as to leave the remaining claims for use in exer- ments of each possible cause of action.
cises for you, the student, to complete. Assault and battery are torts that are created
by state law, not federal law. To be entirely sure that
we have identified the correct elements, we would
Make a List of Possible
Step 1 Theories of Liability
need to find a reported decision of an appellate
court in the state whose laws will apply to this suit
(here, most likely Nevada, since it is the place
Against Dr. Collins only, the “obvious” theories of li- where the tort occurred). An equally good source, if
ability are assault and battery. (Assault is one it exists and can be obtained for the state in ques-
cause of action, battery is another.) What other tion, is the book of recommended jury instructions
causes of action might apply? We look through the for the courts of that state. Keep in mind that if you
table of contents of the Restatement or of a torts miss one of the required elements of a particular
textbook, considering and accepting or rejecting cause of action, you are inviting a motion to dismiss
causes of action one by one. Many can be rejected as to that cause of action.
instantly—this is not a libel case or trespass on
land—or is it? Maybe we should take a closer look Your Local Notes
at trespass. Negligence is a real possibility: Dr.
_________________________________________________
Collins was evidently careless about making sure
which room he was entering. Outrageous conduct _________________________________________________
causing mental distress is a cause of action under
the Restatement and in some states is one worth
considering. We may also take a look at the Nevada You will sometimes find that there are no ap-
statutes, since it is always possible that the Nevada pellate decisions in your state that specify the ele-
legislature may have created some cause of action ments of a given cause of action. Then you will have
for, say, sexual assault. to use a secondary source such as the American
Law Institute’s Restatement of the Law series. Here
Your Local Notes is what the Restatement (2d) of Torts says about as-
sault and battery:
_________________________________________________
Section 21. ASSAULT
_________________________________________________
(1) An actor is subject to liability to another for
assault if
Why would we care about adding these other, (a) he acts intending to cause a harmful or
esoteric causes of action when we have some- offensive contract with the person of the other or a
third person, or an imminent apprehension of such
thing simple like battery? Because the elements of
a contact, and
each will be different. We may run into some un-
expected problem with some element of our bat- (b) the other is thereby put in such imminent
tery cause of action. Also, some causes of action apprehension.
are easier to prove than others. Probably, in this (2) An action which is not done with the intention
case, we will stick to assault, battery, and perhaps stated in Subsection (1)(a) does not make the actor
negligence. On the other hand, we might find that liable to the other for an apprehension caused thereby
there is a Nevada statute entitling any female per- although the act involves an unreasonable risk of
causing it and, therefore, would be negligent or reckless
son who proves (say) that another person entered
if the risk threatened bodily harm.
her hotel room without permission to sue for a
civil penalty of $10,000 per offense, regardless of Section 13. BATTERY: HARMFUL CONTACT
intent—unlikely, but possible. We will never know
unless we look. An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or attempt to expand them at this point. If we repre-
offensive contact with the person of the other or a sent the defendant, they will serve to remind us to
third person, or an imminent apprehension of such review these issues after the complaint is filed. If
a contact, and we represent the plaintiff, it is our responsibility to
(b) a harmful contact with the person of the prepare and file the complaint in such a way as to
other directly or indirectly results. avoid creating these defenses. The steps we will
discuss in Workshops 2 and 3 are designed to help
We see from Section 21 that the elements of assault, us do this.
as applied to our hypo, are (1) an act by Dr. Collins;
(2) intent by Dr. Collins to cause harmful or offensive
Determine the Elements
contact, or imminent apprehension of harmful or of- Step 4 of Each Defense
fensive contact; (3) causing Shannon to feel immi-
nent apprehension of harmful or offensive contact.
To this we add: (4) damages proximately caused by In a real lawsuit, we would outline each of the pos-
Dr. Collins’s wrongful conduct. sible defenses, at least to the extent of listing the el-
Analyzing Section 13, the elements of battery ements. We would do this even for defenses that
are the same as those of assault, except that the seem unlikely to apply (i.e., privilege to arrest for a
third element is now actual harmful contact instead crime). See the sidebar on analyzing a case.
of apprehension of harmful contact. Here, for brevity, we have shown how this
When we get to the “intent to cause harmful or would be done for one defense, that of self-defense.
offensive contact” element, we realize that we may We begin with the Restatement formulation, found in
have a problem—did Dr. Collins “intend to cause a Restatement 2d, Torts, §63:
harmful or offensive contact” with Shannon? Pre-
sumably he intended to throw himself on top of her, §63. Self-Defense by Force Not Threatening Death or
Serious Bodily Harm
he will say, to keep her from shooting him. Most
(1) An actor is privileged to use reasonable force,
people would regard having someone suddenly
not intended or likely to cause death or serious bodily
land on top of them as offensive. So does Dr. Collins harm, to defend himself against unprivileged harmful or
have the requisite intent because he intended the offensive contact or other bodily harm which he
act and the act is offensive? Or did he not have the reasonably believes that another is about to inflict
requisite intent because, whatever the act, his pur- intentionally upon him.
pose was not to be offensive but to avoid being
shot? These are the kinds of distinctions about From this, we can extract the elements of the defense
which appellate courts love to write opinions, and of “self-defense” as applied to our case as follows:
we will need to check the case law in more depth on 1. The force used (here, by Dr. Collins) must have
the “intent” issue. been “reasonable.”
2. No intent (again by Dr. Collins) to cause death
Determine What Defenses or serious bodily harm.
Step 3 May Apply
3. The force used must not have been likely to
Again referring to the Restatement, we find that the cause death or serious harm.
defenses to assault and battery include self-defense 4. The purpose must have been to defend against
(Restatement 2d, Torts, §63), defense of others (§76), “harmful or offensive contact or other bodily
consent (§49), privilege to arrest for a crime (§118), harm.”
and privilege to use force to prevent a serious crime
5. The harm defended against must itself have
(§141 et seq.), as well as a few obviously inapplica-
been “unprivileged.” (Here, things get a bit
ble ones involving such topics as military action
complicated: If Shannon acted properly in self-
and disciplining of children.
defense in trying to shoot Dr. Collins, then her
Checking FRCP, Rule 8(c), we can quickly elim-
actions would be privileged, in which case Dr.
inate most of the affirmative defenses listed there.
Collins would be unable to establish that he
We add to our outline for further analysis the de-
was defending himself against an “unprivi-
fenses of contributory negligence and assumption
leged” harm.)
of risk. We also add headings to our outline for the
defenses of personal jurisdiction, subject matter 6. Reasonable belief (by Dr. Collins) that another
jurisdiction, venue, sufficiency of service of (Shannon) was about to inflict harm on him
process, and proper joinder of parties but do not and do so intentionally.
Whew! Hopefully, you can see from this list of ele-

Your Local Notes
ments why it is impossible to decide whether you
_________________________________________________ have the facts to support a given cause of action
_________________________________________________ or defense without analyzing each one, element
by element.
As we did in researching causes of action, we
would then check the case law of the state whose
law will apply to our lawsuit, to fine-tune our list of
SIDEBAR elements and be sure we are accurately reflecting
local law.
Analyzing A Case: Top-Down
vs. Bottom-Up Approach Step 5 For Each Element of Each Cause
of Action and Each Defense, List
One way—often the obvious or intuitive way— Each Fact Supporting It
to analyze a case is to think about the fact situa-
tion and see what causes of action or defenses jump Now that we have our lists of elements, we go
into your mind to fit those facts. Almost always, a through them, one by one, and try to list as many
trained lawyer or paralegal will be able to look at facts as we can, both pro and con. Our example out-
a set of facts and say, “Aha! Battery!” or “Aha! line shown next demonstrates how this might be
Breach of contract!” done for the cause of action for battery. Naturally,
Unfortunately, that method of analysis is al- in a real lawsuit, the factual universe is likely to be
most certain to overlook other causes of action or much broader and the lists correspondingly longer.
defenses that might turn out to be easier to estab-
lish. There are many possible paths to liability—at For Each Fact, List Each Item
least as many paths as there are causes of action— Step 6 of Evidence Supporting It
and the one you want is the easiest and safest, not
the most obvious. Perhaps the case does look, su- Similarly, the example outline shows how some of
perficially, like a case of battery, but maybe there is the evidence might be filled in.
a big problem with proving, say, intent. If you take
that path, eight times out of ten you would lose on Conclusion—When completed, our issues outline
a motion for summary judgment on the intent is- might look like this (for brevity, we have expanded
sue. If you instead treated the case as a negligence only the part pertaining to the battery cause of ac-
case, you would not have to prove intent, and you tion against Dr. Collins, and we expand the facts and
would be almost certain of at least getting to tell evidence sublevels only in a few selected segments):
your story to a jury.
ISSUES OUTLINE
The only possible way to be sure that you have
selected the best possible path is to check out all I. Causes of Action
paths. There is no substitute for this. Some paths A. Against the hotel
will lead straight to the edge of a cliff and can be ....
rejected quickly. Others may require some research.
B. Against Dr. Collins
But we always at least consider every possible cause
of action and defense we can think of, even those 1. Negligence
that may seem clearly inapplicable at first glance. ....
Remember, we do not have all of the facts yet. 2. Assault
One of the most important effects of taking this ....
top-down approach is that it makes us look at the
3. Battery
facts in a different way. Instead of trying to find
causes of action that fit the facts (the bottom-up a. a threatening act by Dr. Collins
approach), now we can look for facts that fit the i. (fact) entered room at night without
various causes of action. Instead of reacting to the permission
facts as they are given to us, we can seize the ini- (A) (evidence) testimony of Shannon
tiative, decide what facts we want, and try to come (B) (evidence) testimony of investigating
up with them. police officer that Dr. Collins was
found on bed
(C) (counterevidence) testimony of analysis of the causes of action and defenses that
investigating police officer that only key might apply to the case.
found other than Shannon’s key was to
Dr. Collins’s room, raising inference that
he could not have entered room unless
Shannon let him in
The Issues Outline:
ii. (fact) Dr. Collins undressed Learning by Doing
iii. (fact) Shannon did not know Dr. Collins Your assignment for this workshop is to prepare an
iv. (contrary fact) no weapon visible issues outline. For most students, we suggest the
v. (contrary fact) no threat spoken following, based on our Shannon hypo:
b. intent to cause harmful or offensive contact You are a paralegal in the law office of Roger
i. (subissue) intent to do act + act is Yarborough, attorney for Dr. Arthur Collins. Assume that
offensive, or intent to produce an offensive Dr. Collins is a resident of your city, that Banbury Park
result Hotel is located in another city in your state, and that
Roger Yarborough practices in your city. Shannon
.... Martin resides in Arizona, and Park Hotels Group, Inc., is
c. actual harmful or offensive contact incorporated in Delaware.
.... After discussing the case with Allen Porter, Roger
d. damages proximately caused Yarborough realizes that Porter is about to file suit on
Shannon’s behalf, naming Dr. Collins as one of the
....
defendants. Yarborough decides that he would prefer to
e.defenses seize the initiative and file the suit himself. He assigns
i. self-defense you to draft a complaint on behalf of Dr. Collins, for
filing in the state superior court (or county trial court)
(A) reasonable force having jurisdiction in your locality.
....
(B) no intent to cause serious harm or
death
EXERCISES
.... In carrying out this assignment, you should follow
the step-by-step formula described in this work-
(C) no likelihood of serious harm or death
shop.
....
1. Following the instructions for Step 1, try to list
(D) purpose to defend against bodily
as many causes of action as you can that Dr.
harm
Collins could assert against anyone arising
.... from the facts of the hypo. Do not worry about
(E) harm defended against is unprivileged whether he could ultimately prevail on each
.... one—if a cause of action has any reasonable
bearing on the situation, list it. (We will decide
(F) reasonable belief that other was about
to intentionally inflict harm which of the causes of action seem meritorious
when we draft the complaint. See Exercise 4 in
4. Outrageous conduct causing mental distress
Workshop 5.)
....
2. Prepare an issues outline limited to Dr. Collins’s
C. Against the police department cause of action against Shannon for assault:
.... a. Begin with the elements of the cause of ac-
D. Against Shannon’s employer tion for assault as set out in Restatement
(2d), Torts, Section 21.
....
b. At your instructor’s option, research the
II. General Defenses case law of your own state pertaining to as-
A. Jurisdiction sault and attempt to list the elements of as-
.... sault based on your state’s case law. Cite the
cases on which you base your conclusions.
We reiterate that the format, layout, and organi- c. Following Step 5, list, under each element in
zation of the issues outline is a matter of individual your outline of “assault,” all of the facts you
preference. The objective is to force a systematic can think of that bear on that element.
Include facts that tend to establish that ele- a. Determine the elements of the defense of
ment and also facts that tend to disprove self-defense by consulting the Restatement,
that element. case law from your state, and/or any other
d. Following Step 6, list, under each fact that source that your instructor assigns.
you listed, any evidence that you can think of b. Following Step 5, list, under each element of
that would tend to either prove or disprove “self-defense,” all of the facts you can think
that fact. (In doing this and the preceding of that bear on that element. Include facts
step, keep in mind the difference between that tend to establish that element and also
facts and evidence. Reread the instructions facts that tend to disprove that element.
for Steps 5 and 6 if you are unsure.) c. Following Step 6, list, under each fact that
you listed, any evidence that you can think of
3. Prepare an issues outline limited to the issue
that would tend to either prove or disprove
of self-defense. Assume that you represent
that fact. (In doing this and the preceding
Shannon, and that Dr. Collins has sued Shan-
step, keep in mind the difference between
non for battery (remember, she shot him).
facts and evidence. Reread the instructions
One affirmative defense to the tort of battery
for Steps 5 and 6 if you are unsure.)
is self-defense.
PRACTICE POINTERS
Organizing a Case File
At the same time you are beginning to prepare court materials, you also
need to begin organizing the case file that will contain all documents, notes,
court papers, and investigative materials for the case at hand. Having already
met with the client at this point, you will need to file your notes from this ini-
tial meeting as well as any telephone conversations you may have had with
the client.
Having been made aware at that initial interview of some of the potential
witnesses in this case, you can also create a witness directory that will list al-
phabetically all the witnesses of which you are currently aware, their tele-
phone numbers and addresses, and any other identifying information. This di-
rectory will assist you in the future to schedule interviews and depositions
and to issue subpoenas.
In your computer you will need to prepare a case directory (often entitled
by the client’s surname). At the beginning of this directory you will put your
“to do” list, which will contain tasks that you jotted down during and after
your initial interview with the client. The case directory should also contain
an inventory document called the “original documents list.” This list should
include the documents the client brought to the first meeting and should iden-
tify the nature of the document and the date it was received. Original docu-
ments should not, by the way, be hole-punched or altered in any way because
they may be used at trial.
Finally, the case directory should include a letter you have written to the
client, thanking her for choosing your firm and acknowledging that she has
provided the firm with documentation. Listing the documents provided
should be done only with the permission of your supervising attorney.
TECHNO TIP
The elements of a claim can be found in statutes for the state of Arizona at
many sources. If your state follows the http://www.azleg.state.az.us/ars/ars.htm.
Restatements, such as Torts, Contracts, Whenever you find a relevant page on
etc., these treatises are a good place to the Internet, whether as a specific re-
begin. For claims created by statute, source or as a road map to other sites,
such as state security law issues, non- keep its address and a brief description
common law torts, federal law viola- of its contents in a separate file. The
tions, and the like, you can look on the “bookmarks” kept by your browser may
Internet for free access to the applicable not have the ability to keep as many
jurisdiction’s statutes. The United States pages as you may find you need, are
Code, for example, is accessible in generally not as easy to manipulate, and
searchable form at http://law.house. cannot be easily passed on to others not
gov/uscsrch.htm. Another example of sharing the same server as you, assum-
free access to a state’s statutes is the ing you are on your firm’s network.
FORMS FILE
When you begin your first job as a legal assistant, you will find it
helpful to have documents that you can use as forms to remind you of
the proper format and content of the document you are asked to
prepare. You will, for example, want to have copies of various types of
complaints, motions, memoranda, subpoenas, contracts, wills, and so
on. You can easily prepare a forms file by keeping copies of the
documents you prepare or that are provided as samples in each class.
Purchase a three-hole notebook and a three-hole punch and insert a
sample of each document as you discuss it in class. You can use tabs to
organize these documents systematically for easy and logical
reference.
Therefore, at the end of each workshop, we will recommend
documents that you may want to include in your forms file that relate
to that particular workshop. In this chapter, for example, we suggest
you include a section that summarizes the causes of action in each
substantive area you study. As you learn about contract law, for
example, list the elements of a contract claim under common law, a
contract claim under the U.C.C., all of the defenses to contract
formation, and so on. You can begin by including the elements of the
basic causes of action in tort law, which are set forth in Figure W1–2,
in your forms notebook.
KEY TERMS
Claim Theory of liability

Choosing a Court:
Jurisdiction, Venue,
and Choice of Law
WORKSHOP
2
INTRODUCTION: WHY THE CHOICE which court to file the complaint. However, in cer-
OF FORUM IS IMPORTANT tain circumstances, a defendant who disagrees with
the plaintiff’s choice can get the case transferred to
The United States has many hundreds of courts: a different court or dismissed in a way that forces
federal courts, county courts, city courts, justice of the plaintiff to refile in a different court. And, if the
the peace courts, magistrate courts, tax courts, defendant knows that a dispute is likely to lead to a
bankruptcy courts, probate courts, equity courts, lawsuit, the defendant can sometimes seize the ini-
admiralty courts—the list goes on and on. We refer tiative and file first (as a plaintiff, of course, naming
to the particular court in which a given lawsuit is the “natural” plaintiff as a defendant), thereby ce-
filed as the forum for that lawsuit. menting a more defense-friendly choice of forum.
How do you decide which, out of all of these Therefore, the defendants as well as the plain-
hundreds of courts, is the right one in which to tiffs should analyze the forum choices. A further
prosecute your lawsuit? We can use two considera- motivation for the defendants is the potential for
tions to narrow the list. finding additional defenses (jurisdictional defenses,
First, we must choose a court that has legal au- for example).
thority to hear our case—the court must have ju- As with other potentially complex decisions in
risdiction, and venue rules must be satisfied. We the course of a lawsuit, the odds favor those who
must also consider whether there are factors pres- apply a systematic approach to ensure that
ent that may lead the court itself to decide that the promising alternatives are not overlooked. If you
case should be brought elsewhere. For instance, always jump up and file in the obvious forum (usu-
even if the court we choose has jurisdiction, the ally, the local county or superior court), at least
judge may have the power to transfer or dismiss a some of the time you will be missing the chance to
case if the forum is deemed “inconvenient.” We dis- file in some other court in which your case might
cuss these concepts in detail in this workshop. be more easily won.
Second, out of all the courts in which we could Hence, we proceed in our usual step-by-step
file, we would prefer to choose the one in which we fashion (see Figure W2–1).
are most likely to win our case. All courts are not cre-
ated equal, nor do all courts apply the same laws.
Procedural rules differ greatly from one court to an-
List All Courts Where
other, and substantive law varies considerably from Step 1 the Case Might Be Filed
one state to another. Delay is a major consideration.
In some courts a lawsuit can be prosecuted to trial
Our first task is simply to make a list of every court
and judgment in as little as a year or two, while in
we can think of in which our case might conceivably
others it may routinely take five years or more. And,
be filed.
as graphically demonstrated by certain recent cases
We begin by weeding out the cases in which the
(Rodney King, O. J. Simpson), choice of geographi-
choice of forum is a foregone conclusion. The two
cal location implies a choice of jury demographics,
main classes of such cases are garden-variety suits
which can be enough, by itself, to determine who
for damages between local residents, and specialty
wins or loses.
cases that have to be filed in a particular court. For
such cases, if we apply the step-by-step instruc-
tions of this workshop, we would arrive at the re-
Choosing a Court: sult that only one choice of forum is possible. In
Step-by-Step Instructions practice, however, most litigators would not go
through a detailed analysis in cases for which the
Choice of forum refers to the process by which we outcome is obvious. With a few simple observa-
decide which court will hear our case. Who gets to tions, we can identify many of the routine cases
make this important decision? The initial choice be- and save ourselves the effort of going through all
longs to the plaintiff, because the plaintiff decides in the steps.
236 WORKSHOP 2 Choosing a Court: Jurisdiction, Venue, and Choice of Law
Figure W2–1 Choosing a Court
Step 1: List All Courts Where the Case Might be Filed

Easy Choice Type 1: Garden-Variety Suits for Damages between Local Residents
Easy Choice Type 2: Cases for the Specialty Courts
Cases Where the Choice Is Not as Easy: Listing the Possibilities
Step 2: Check Each Forum for Jurisdiction of the Subject Matter
State Courts
Federal Courts
Federal Question Jurisdiction
Diversity Jurisdiction
Disputes Over Subject Matter Jurisdiction
Step 3: Check for Jurisdiction of the Person of Each Defendant
Personal Jurisdiction the Easy Way
Personal Jurisdiction by Consent
Personal Jurisdiction over State Residents
Personal Jurisdiction over Corporations “Present” in the State
Personal Jurisdiction the Hard Way
Tag Jurisdiction
Long-Arm Statutes
Personal Jurisdiction in Federal Court
In Rem and Quasi-In Rem
Step 4: Decide Whether Venue Would Be Proper
State Court
Federal Court
Remedies
Step 5: Consider Defendant’s Transfer Options
Removal
Forum non Conveniens
Federal Transfer
Step 6: Decide Which of the Possible Courts Is Best
Procedural Law
Substantive Law
Federal Law Causes of Action
State Law Causes of Action
State Law Causes of Action in Federal Court
Other Factors In Choosing a Forum
Caseload and Average Time to Trial
Who Decides?—Judges and Jury Demographics
Convenience, Cost, and Attorney Familiarity
Easy Choice Type 1: Garden-Variety Suits for list. If we are able to check off all of the points on the
Damages between Local Residents—In typical checklist as true, we will likely conclude that we
automobile fender-bender cases, routine business must file in the local county court, for better or
disputes, run-of-the-mill debt collection cases, and worse. If we cannot confirm every point, then we
many other kinds of lawsuits that comprise much of need to do the step-by-step analysis. After doing so,
the case flow in a metropolitan court system, the only we may still conclude that our only choice is the
court that will have jurisdiction is the local county county court—being unable to check off all the
court, and that is where the suit will have to be filed. points does not guarantee that there are other
Based on the legal principles that we will be choices; it merely guarantees that we need to ana-
studying in this workshop, we can make up a check- lyze the situation in more detail.
WORKSHOP 2 Choosing a Court: Jurisdiction, Venue, and Choice of Law 237
Here is the checklist:

SIDEBAR
■ All parties to the lawsuit are now, and were at
the time of the events in dispute, residents of
the forum county. (We discuss in more detail
The Importance
what it means to be a resident under Step 2.) of Being Connected
■ The dispute is over some set of circum-
A court will ordinarily hear a case if and only if
stances that occurred entirely within the fo- (1) it has jurisdiction of the subject matter, (2) it
rum county. has jurisdiction of the person of each defendant,
■ The case is a suit for money damages. and (3) venue is proper. Rules of jurisdiction and
■ The case does not involve any government venue can be quite technical and complex, but they
agencies as plaintiff or defendant. will be easier to understand if we realize that they
■ The amount of money in question is above the
are all designed to achieve one main purpose: to
local county court threshold (i.e., not so small channel lawsuits into the courts that can most con-
as to force the case into small claims court). veniently hear them.
■ None of the causes of action on which the suit

Courts are usually reluctant to hear cases that
will be based arises from federal law or from have no connection to the locality where the court
the law of some other state or country. sits. This is not surprising when you consider that it
is the taxpayers of that locality who are paying for
the court.
Easy Choice Type 2: Cases for the Specialty
Courts—In certain situations, the subject matter of What does it mean to be connected to the lo-
the case limits the choice of forum. For example, only cality? The precise answer depends on the jurisdic-
the Federal Bankruptcy Court can grant a bank- tional rules, but here is a useful rule of thumb: At a
ruptcy, so it would be pointless to consider filing a minimum, at least one of the parties must be a res-
bankruptcy case anywhere else. (It may still be nec- ident of the forum county, or, failing that, part of
essary to decide in which district to file.) Where a the events that gave rise to the dispute itself must
specialty court exists and where, in addition, the par- have happened in the forum county. Certainly, it is
ties and the events in dispute are all local, the choice possible for cases to sneak under the jurisdictional
of forum will often be obvious: A divorce between radar that are even less connected than our rule of
two local residents probably belongs in the local di- thumb would allow, but this does not happen often.
vorce court. Nevertheless, the existence of a spe-
cialty court does not necessarily or in all cases fore-
close the possibility of filing in some other forum,
courts that are connected in some way to the dis-
especially where the case involves out-of-state par-
pute (see sidebar).
ties or disputes that arose partly in some other state.
At a minimum, in a suit for damages, we should
We will have more to say about specialty courts
include in our list:
later when we discuss jurisdiction of the subject
matter.
Recognizing which specialty cases require de-
1. Our own local county or superior court;
tailed consideration of the choice of forum issues is
a skill that comes with experience. Meanwhile we 2. The local county or superior court for any
suggest erring on the side of caution: When in county, in our state or in some other state, in
doubt, analyze. which any defendant is a resident;
Cases Where the Choice Is Not As Easy: List- 3. The local county or superior court for any
ing the Possibilities—For the cases that we can- county, in our state or in some other state, in
not weed out as obvious, we proceed to list all the which any significant part of the events in dis-
possible forums. As usual, we do not attempt at this pute happened;
stage to evaluate each alternative; our goal is 4. The federal district court for the district in
merely to list as many as we can. which we practice;
What do we mean by a “possible” forum? First,
5. The federal district court for each federal dis-
we do not bother to list courts whose jurisdiction is
trict in which any defendant resides; and
limited in some way that clearly excludes us. For ex-
ample, if we are filing a lawsuit for damages against 6. The federal district court for each federal dis-
a private person, we do not need to list the Tax trict in which any significant part of the events
Court as a possibility. Second, we limit ourselves to in dispute happened.
In specialty cases, the possibilities will depend is on appeal. If the court finds that it lacks subject
on what specialty courts exist in the localities to matter jurisdiction, it must dismiss the case.
which the case is connected. Your instructor will in- This creates the potential for a nasty trap: Sup-
form you of any specialty courts that you need to be pose you file your lawsuit in a court that lacks sub-
aware of in your locality. ject matter jurisdiction. Obviously, you would not do
this deliberately, but perhaps the jurisdictional de-
Your Local Notes fect involves some subtle, technical problem that
you overlooked. Suppose your opponent also fails to
_________________________________________________
notice the problem. You litigate the case at great ex-
_________________________________________________ pense, finally winning a jury trial and obtaining judg-
ment. Your opponent appeals. The appeals court no-
tices the jurisdictional problem. What will happen?
Your case will be dismissed. Subject matter ju-
SIDEBAR risdiction defects can be raised at any time.
Fortunately, this sort of thing does not happen
Jurisdiction: Original often, but the possibility should be enough to make
you careful about subject matter jurisdiction!
vs. Appellate
State Courts—State trial courts—county or supe-
A further level of complication in deciding
rior courts—are usually courts of general subject
which court to choose is knowing in which level to
matter jurisdiction. Originally, this meant that state
file. Suppose you have decided to file your lawsuit
trial courts had the power to hear all types of cases,
in federal court—which one? District court? Court
so it was unnecessary to worry about subject matter
of appeals? Supreme Court?
jurisdiction if you were filing your case in state court.
You probably know instinctively that you could Increasingly, however, there are exceptions to the
not start your lawsuit in the Court of Appeals or generality of state court subject matter jurisdiction.
Supreme Court—but why not? Is there anything Some of the most common include the following:
preventing you from taking your case straight to
■ Divorce cases, which must, in some but not
the Supreme Court?
all localities, be filed in a specialty divorce or
Sorry, you can only originate a lawsuit in a family court;
court that has original jurisdiction over it. For
■ Probate cases, which must, in some but not
most types of federal cases, the U.S. district court
all localities, be filed in probate court;
has original jurisdiction and the Court of Appeals
and Supreme Court have only appellate jurisdic- ■ Small claims cases (i.e., cases in which the
tion—that is, they have the power to hear only ap- amount in dispute is below a certain thresh-
peals. (There are, however, a few classes of cases— old amount of money, typically on the order
certain disputes between state governments, for of a few thousand dollars), which may have
example—over which the U.S. Supreme Court has to be filed in a court designated to handle
original jurisdiction.) small claims (which may be called a small
claims court or something else, depending on
the locality);
Check Each Forum ■ State tax cases, for which some states have
Step 2 for Jurisdiction of the created specialty tax courts. (Choice of fo-
Subject Matter rum in federal tax cases is a complex issue
into which we will not delve.); and
Now we go through our list of possible forums one by ■ Cases of exclusive federal jurisdiction, which
one and eliminate any that would not have jurisdic- must be filed in federal district court. [Where
tion of the subject matter. Recall from Chapter 2 that the cause of action comes from a federal
jurisdiction is the power to hear and decide a case. statute, the statute may provide that suit
Jurisdiction comes in two main flavors: juris- must be brought in federal court. Normally,
diction of the subject matter and jurisdiction of the state courts do have jurisdiction to hear fed-
person. Jurisdiction of the subject matter is the eral causes of action, but Congress can, and
power to hear and decide cases of a given type and occasionally does, specify otherwise. An ex-
it is important for this reason: Defects in the court’s ample: securities fraud cases under Rule
jurisdiction of the subject matter cannot be waived 10(b)(5) of the Securities Exchange Commis-
and can be raised at any time, even when the case sion can be brought only in federal court.]
But wait—what about lawsuits in which you as-

Your Local Notes
sert some causes of action based on federal statutes
_________________________________________________ and others based on state law? Does including a
_________________________________________________ state law cause of action in an otherwise federal
case deprive the federal court of subject matter ju-
risdiction?
In ordinary lawsuits filed in state court, subject In general, no. If there is at least one valid fed-
matter jurisdiction is not usually a concern. How- eral cause of action, the federal court is said to have
ever, any time you are suing in state court on an un- pendent jurisdiction over the appended state law
usual cause of action—one based on federal law or causes of action. In fact, it is commonplace for law-
one that you have not seen asserted routinely in suits in federal court to include both federal and
other state court lawsuits—it is wise to do some restate causes of action. Pendent jurisdiction poses
search and be sure you are right about the particu- one significant hazard, however: If your federal law
lar case’s subject matter jurisdiction. cause(s) of action were to be dismissed for some
reason (i.e., you lose a motion for summary judg-
Federal Courts—Federal courts, in contrast to ment), then there would be no federal claim for the
the state courts, are courts of limited subject mat- state law causes of action to be appended to. Then
ter jurisdiction. Their jurisdiction extends only to they would be dismissed for lack of subject matter
a few specific categories of cases for which Con- jurisdiction and your whole case would be gone.
gress has passed laws allowing suits in federal Diversity jurisdiction: The other main category
court. With state trial courts, we assume that the of federal subject matter jurisdiction is diversity of
court has subject matter jurisdiction over every- citizenship jurisdiction. The idea here is that the
thing, except where there is some law that makes federal courts should provide an impartial forum for
an exception. With federal courts, we must assume suits between residents of different states.
that the court does not have subject matter juris- Presumably, state courts might tend to favor their
diction unless we can find a federal statute (a law own residents over others. Whatever may be your
passed by Congress) granting jurisdiction over our view of the logic of that rationale, 28 U.S.C. §1332
specific type of case. gives the federal district courts original jurisdiction
Congress has, in fact, granted jurisdiction to over all civil actions between “citizens of different
the federal district courts over a number of cate- states.” Federal district courts are also given juris-
gories of cases. Many of these involve matters of diction over certain civil actions involving citizens
specific federal concern, such as suits between of foreign countries.
the governments of two states or suits against for- What does it mean for an action to be between
eign powers. Some of the categories can be found citizens of different states? Citizenship as used here
in Title 28, Chapter 85, of the U.S. Code (28 U.S.C. means “domicile,” a clarification that does not nec-
§1330 et seq.) Other grants of subject matter juris- essarily help us much, since litigators are not shy to
diction can be found in federal statutes regulating engage in disputes over what domicile means. Usu-
particular classes of activity (taxes, patents, se- ally, a person’s domicile is the state in which the
curities, etc.). person lives, although the correct legal definition is
For litigators who are not government agency somewhat more complicated (see sidebar). A cor-
lawyers or practitioners of some esoteric spe- poration is considered to be a citizen of any state in
cialty, however, the important categories of fed- which it is incorporated and also of the state in
eral subject matter jurisdiction can be narrowed which its principal place of business is located.
down to two: federal question jurisdiction and di- Where a lawsuit is between one plaintiff and one
versity jurisdiction. defendant, it is easy to decide whether the action is
Federal question jurisdiction: Federal district between citizens of different states, as long as we
courts have subject matter jurisdiction over “all know what states the plaintiff and the defendant are
civil actions arising under the Constitution, laws, or citizens of. What about more complex disputes in
treaties of the United States” (28 U.S.C. §1331). This which there may be a number of plaintiffs and defen-
is called federal question jurisdiction. In practice, dants? The statute (28 U.S.C. §1332) does not furnish
this means that if your cause of action is based on a a rule for this situation, so the federal courts have
federal statute, you can sue in federal court. This ju- supplied one: For there to be federal diversity juris-
risdiction is not exclusive; you are not required to diction, there must be “complete diversity.” That is,
sue in federal court merely because your case is there can be no defendant who is a resident of the
based on a federal statute, and many, perhaps even same state as any plaintiff. To see how this works in
most, such cases are filed in state court. a given case, try this: Make a plaintiffs’ list of all the
SIDEBAR bring penny-ante cases into federal court, and the

statute allows the judge to make the plaintiff pay
the court costs.
Citizenship, Residence, Disputes over subject matter jurisdiction: It
and Domicile takes little imagination to see that much disagree-
ment can arise about whether a given lawsuit qual-
How do you tell which state you are a citizen ifies for federal subject matter jurisdiction. Not only
of? Perhaps you were not even aware that you are that, there are often opportunities for litigators to
a citizen of some state—you thought you were a engineer the situation to their advantage by careful
citizen of the United States, or perhaps some other addition or subtraction of parties and causes of ac-
country. tion. A plaintiff who is desperate to get into federal
Legally, however, for many purposes, each court may add an utterly meritless cause of action
state of the United States is considered a separate based on some federal law merely to create federal
sovereign entity, each with its own government and question jurisdiction. Or a defendant may try to
its own citizens. bring in an additional defendant whose state of res-
Fortunately (thanks to the U.S. Constitution), idence is the same as that of one of the plaintiffs, so
we do not have to go through customs or immi- as to negate complete diversity. Individuals may
gration when we move from one state to another. move to other states to try to avoid being sued in an
You are a citizen of the state in which you have unfavorable forum. The possible permutations are
your domicile, and you are free to choose any domi- endless, and legal research will often be necessary
cile you wish and change it as often as you wish. to figure out whether federal jurisdiction exists in a
Literally, domicile means “home”; legally, it means given situation. (A good place to start is Wright and
any state in which you are physically present with Miller, Federal Practice and Procedure, a multivol-
the intention to remain indefinitely. This means ume encyclopedia of federal procedure. The first
that to choose a state as your domicile, you do volume is devoted to issues of jurisdiction.)
have to actually go there (physical presence); sim- What is the defendant’s remedy if the defendant
ply taking a vacation there is not enough (no intent believes that the court lacks subject matter juris-
to remain indefinitely). For some people, such as diction? Most commonly, a motion to dismiss for
“snowbirds” who winter in the Sun Belt and spend lack of jurisdiction under FRCP, Rule 12 (b)(1). We
summers in one of the northern states, domicile can will take up the subject of motions to dismiss in de-
be an ambiguous concept. tail in Workshop 16.
For purposes of procedural law, citizenship of a
state and domicile in a state are the same thing.
Check for Jurisdiction of the
Residence is a less exact term; in this text, we will use Step 3 Person of Each Defendant
it to mean the same as domicile, but in some other
contexts (i.e., deciding whether you have to pay In Step 2, we crossed off any of the forums on our
out-of-state tuition) it may have other meanings. list that would not have jurisdiction of the subject
matter. Now we consider whether we can obtain ju-
risdiction of the person of each defendant in each of
states in which any plaintiff resides, and a defen- the forums left.
dants’ list of all the states in which any defendant re- Jurisdiction of the person of a party is the
sides. (Keep in mind that corporations can have power to render a decision that will be binding on
more than one state of residence.) Compare the two that party. The requirement of jurisdiction of the
lists; if there is any state that appears on both lists, person has its roots in the U.S. Constitution, specif-
there can be no federal diversity jurisdiction. ically in the Due Process Clauses of the Fifth and
There is one other requirement for diversity ju- Fourteenth Amendments.
risdiction: the “matter in controversy” must exceed The issue that jurisdiction of the person ad-
“the sum or value of $75,000.” This is referred to as dresses is this: “Is it fair under these circumstances
the jurisdictional amount. It is determined by how to force this person to litigate in this state?” The an-
much the plaintiff asks for in the complaint, not by swer depends on two main factors. The first is
how much is actually won. You do not get thrown whether the person in question has a sufficient con-
out of court for lack of jurisdiction if you ask for nection with the forum state to make it fair to force
$100,000 and the jury awards you only $49,999. But him to litigate there. The second—whether the per-
federal judges have ways of getting even with the son has been adequately notified that she has been
plaintiffs who inflate their demands in order to sued—tends, as a practical matter, to come up in
the form of a dispute over the sufficiency of service Personal jurisdiction over corporations “pres-
of process, so we will leave it for Workshop 6. ent” in the state: We have said that corporations
Because personal jurisdiction issues depend on are citizens of the state of incorporation and the
the relationship of the defendant to the forum state, state in which the corporation’s main office is lo-
we can usually analyze federal court personal juris- cated, for purposes of federal subject matter ju-
diction in exactly the same way that we would ana- risdiction by “diversity of citizenship.” Personal
lyze the personal jurisdiction of a state court in the jurisdiction of corporations is a different issue:
same state. For example, if a Nevada state court Courts of a state (and federal courts sitting within
would have jurisdiction of the person of Dr. Collins, the state) can exercise personal jurisdiction over
then so would the U.S. District Court for the District corporations and other business entities if they are
of Nevada. (There are, however, a few situations in “present” within the state. What does it mean to be
which we can stretch the jurisdictional reach of fed- “present”? Maintaining a place of business in the
eral courts a bit, as we will see.) state is enough; merely engaging in advertising or
Notice that personal jurisdiction issues always mail order business may not be; and in a close case
occur at the level of states. We do not need to worry you will have to research the issue.
about which county we choose within the state Many states require out-of-state corporations
(that is a question of venue, not jurisdiction; see to file papers with a state agency before doing busi-
Step 4 later). ness in the state, consenting (among other things)
to be subject to suit in the state’s courts. As a prac-
Personal Jurisdiction the Easy Way—There are tical matter, therefore, when suing an out-of-state
easy ways to get personal jurisdiction of a defen- corporation, your first thought should be to call the
dant, and then there are harder ways. As you might state corporation commission (or whatever state
guess, most cases involve the easy ways. These are agency regulates corporations in the state in ques-
(1) get consent or (2) sue in the state in which the tion) and find out whether the corporation has filed
defendant resides (or, in the case of corporations, is papers qualifying to do business in the state.
“present”).
Personal jurisdiction by consent: Recall that Personal Jurisdiction the Hard Way—Obviously,
with jurisdiction of the subject matter, the court ei- the easy way does not work in all cases. Perhaps you
ther has it or does not—whether the parties are are suing someone from another state, and you
willing to have the court hear the case has nothing would prefer to do it in your state’s courts rather
to do with it. Jurisdiction of the person is different: than his. Or perhaps you are suing several defen-
A party can voluntarily submit to the jurisdiction of dants, each from different states—then it is impossi-
the court. This is why the court always, automati- ble to sue all of them in their states of residence un-
cally, has jurisdiction of the person of the plaintiff less you sue each one separately. Now what?
who files the suit: by filing suit, the plaintiff con- There are two main ways of getting personal ju-
sents to be bound by the court’s decision. risdiction of a defendant who refuses to consent to
Similarly, the defendant can consent to the be sued in the state of your choice and does not re-
court’s jurisdiction of his person. When the plain- side there. One is to serve process on her within the
tiff’s choice of forum is reasonable, the defendant boundaries of the forum state; the other is to take
will often accept it voluntarily, preferring to avoid advantage of the so-called “long-arm” statutes.
unnecessary expense and save ammunition for Tag jurisdiction: Courts always have jurisdiction
more important issues. Less adroit defendants also of the person of anyone located within the bound-
sometimes consent to jurisdiction without intend- aries of the state, whether the person is a resident
ing to—a defendant who makes a general appear- of the state or not. This means that if you can man-
ance in the case (i.e., files an answer) without prop- age to catch the defendant in the state in which you
erly raising the defense of personal jurisdiction is want to sue, and get a process server to serve
deemed to have consented. process on him before he leaves the state, the court
Personal jurisdiction over state residents: What will have personal jurisdiction. (Personal service of
happens when the defendant does not want to con- process, as you may recall from Chapter 3, consists
sent to litigate in a particular forum? If the defen- of having a process server physically hand the de-
dant is a citizen of the forum state—the state in fendant a copy of the summons and complaint. We
which the court sits—the court automatically has will cover the procedure for doing this in more de-
personal jurisdiction of that defendant. The courts tail in Workshop 6). Thus in theory, if Shannon
of a state always have personal jurisdiction over the wanted to file suit against Dr. Collins in, say, North
citizens of the state, and so do federal courts lo- Dakota, if she could manage to have a process
cated in the same state. server drop the papers on him as he rode through
the corner of the state on a bus, the North Dakota

court would have jurisdiction of his person. (As a
SIDEBAR
practical matter, the North Dakota court might well
find other reasons not to take the case—see the Personal Jurisdiction Cases
later discussion of forum non conveniens.)
To get a feel for the concept of minimum con-
Long-arm statutes: You are probably not very im-
tacts, the following are brief summaries of two
pressed with tag jurisdiction as a practical way to get
leading federal cases:
jurisdiction over recalcitrant defendants. What you
really need is a way to reach out and sue people who World-Wide Volkswagen Corp. v. Woodson,
are not residents of the state, never intend to go 444 U.S. 286, 100 S. Ct. 559 (1980)—Involved a
there, and are not about to consent to be sued there. suit in an Oklahoma court by New York plaintiffs
Can you do this? Yes, but there are limitations. against a New York car distributor and a dealer-
Every state now has a so-called long-arm statute au- ship that sold plaintiffs a car that burned up in Ok-
thorizing suits against nonresidents in certain situa- lahoma injuring the plaintiffs. Neither of the defen-
tions. The first limitation is that you can sue only dants conducted any business in Oklahoma and
nonresidents in the situations specified by the fo- did not regularly sell to Oklahoma buyers. HELD:
rum state’s long-arm statute. Defendants had insufficient contacts with
The second limitation is the Constitution’s due Oklahoma to allow assertion of jurisdiction;
process requirement. The U.S. Supreme Court has foreseeability of injury alone is an insuffi-
held that it would be fundamentally unfair (and cient basis for asserting personal jurisdiction.
therefore a violation of due process) to allow people Burger King Corp. v. Rudzewicz, 471 U.S. 462,
to be dragged into lawsuits in other states with 105 S. Ct. 2174 (1985)—Florida corporation sued
which they have no minimum contacts. An example Michigan residents in federal court in Florida
may help to clarify this: Suppose Sam Snowbird from (based on diversity) for breach of a franchise agree-
Duluth, Minnesota, is driving through Albuquerque, ment. Defendants alleged breach occurred in
New Mexico, when he is involved in a collision with Michigan, not Florida, and Florida court did not
Larry Local, a New Mexico resident. It seems per- have jurisdiction over them. Florida’s long-arm
fectly reasonable to allow Larry to sue Sam in New statute provided that it had jurisdiction over any
Mexico—after all, it was Sam’s choice to drive there. breech of contract to be performed in Florida (the
On the other hand, it would be fundamentally unfair franchisees’ payments were made to plaintiff in
to allow Sam to sue Larry in Duluth—Larry has not Florida). HELD: Defendants had sufficient
done anything to subject himself to the authority of contacts with Florida to allow assertion of
the government of Minnesota. jurisdiction.
In practice, constitutional issues rarely arise An example of a state court’s analysis of its
nowadays. This is because most state long-arm “long-arm” statute is:
statutes have been designed with the constitutional
Hoskins v. California, 168 Ariz. 250, 812 P.2d
limits in mind, and have by now been challenged on
1068 (1990), review denied, 168 Ariz. 177, 812
constitutional grounds and upheld by the courts.
P.2d 1034 (1991)—California parolee killed an Ari-
Therefore, litigators usually assume that if they
zona resident in Arizona. Plaintiff alleged that the
have complied with the forum state’s long-arm
state of California failed to control the killer in Cal-
statute, personal jurisdiction is assured.
ifornia. Plaintiff also alleged that the state of Cali-
Most state long-arm statutes have been carefully
fornia was doing business in Arizona for purposes
drafted to extend the reach of the state’s courts as far
of general jurisdiction. HELD: Defendant state
as the Constitution allows. The most common formu-
of California had insufficient contacts with
lation allows suits against any person, including a
Arizona to allow assertion of jurisdiction
nonresident, if that person (1) caused an act or event
(also discussed sovereignty issues).
to occur within the forum state and (2) the cause of
action which the plaintiff is suing on arises from that
act or event. These two factors comprise the U.S.
Supreme Court’s definition of the minimum contacts been sued until it is too late to defend!) In practice,
required to satisfy constitutional due process. the constitutional notice requirement is satisfied by
There remains the problem of giving notice. Due having process served in accordance with the ap-
process requires both minimum contacts and that plicable rule or statute. We will leave the details of
the defendant be given notice of the lawsuit. (Obvi- service of process for Workshop 6.
ously, it would be fundamentally unfair to allow It is important not to confuse personal jurisdic-
suits in which the defendant never finds out she has tion with service of process requirements. Service
of process is necessary to obtain personal jurisdic- defendants. What if the lawsuit concerns, for exam-
tion, but not always sufficient. Without valid service ple, conflicting claims to ownership of a particular
of process, the court will not have personal juris- item of property? If the court can obtain jurisdiction
diction over the defendant who was not properly over the item of property itself, then we may not
served. However, the best service of process in the care whether there is jurisdiction of the persons of
world will not give the court jurisdiction over a de- the disputing claimants.
fendant who is not a resident of the forum state, not The intricacies of in rem and quasi-in rem juris-
served within the forum state, and does not have diction are beyond the scope of this introductory
minimum contacts with the forum state. You may text. You may find it useful, however, to bear in
find it helpful to think of personal jurisdiction as mind that a court may have the power to make or-
centering on the question, “Is it possible to sue this ders concerning specific property under its juris-
defendant in this place?” Then service of process diction, even when the people claiming the prop-
involves the question, “Have we taken the right erty are beyond its reach.
steps to obtain personal jurisdiction in these cir-
cumstances?” Your Local Notes
Personal Jurisdiction in Federal Court—In gen- _________________________________________________

eral, the jurisdictional reach of federal district _________________________________________________
courts is the same as that of state courts in the
same state. See FRCP, Rule 4(k)(1)(A), which grants
personal jurisdiction over any person “who could
be subjected to the jurisdiction of a court of gen- Decide Whether Venue
Step 4 Would Be Proper
eral jurisdiction in the state in which the district
court is located.” There is no federal long-arm
statute; to sue people who are not residents of the We have seen that the concept of jurisdiction allows
forum state, you refer to the long-arm statute of the us to answer the question, “Would a court in this
state in which the district court sits. The long-arm ju- state have the power to render a binding decision in
risdiction of the federal courts is determined by this case?” Jurisdiction does not, however, answer
state law, not federal law. an important related question: “Is this court a rea-
The personal jurisdiction of federal courts is sonable and convenient place in which to litigate
slightly greater than that of a state court in two this case?”
ways. The first is that federal courts can take juris- Venue is a further limitation on the place of suit,
diction over any person who can be served inside based on convenience. Even if a given court has ju-
the United States and within 100 miles of the court- risdiction over our suit, we cannot proceed there if
house where the district court sits. This may be venue is not proper.
useful to litigators who practice in metropolitan ar- In theory, the venue rules are designed to chan-
eas that straddle a state border. nel each lawsuit into the court that can hear it most
The second is that, by federal statute, in cases efficiently, preferably without making the parties
under the federal antitrust laws or the federal secu- and witnesses travel great distances. In practice,
rities laws, federal courts have nationwide personal venue rules are made by legislatures and, at times,
jurisdiction. Thus, in an antitrust suit or a securities tend to be arbitrary and illogical. Attempting to psy-
fraud suit, you can sue in any federal district court choanalyze them will make you crazy, so it is prob-
and obtain personal jurisdiction over anyone who ably best to regard venue as simply another hoop to
can be served anywhere inside the United States. be jumped through on the way to filing a lawsuit.
A final warning: Service of process in federal
court, unlike questions of personal jurisdiction, is State Court—Jurisdictional considerations allow
governed by the federal rules, specifically FRCP, us to decide whether we can proceed in a given
Rule 4. In some instances, Rule 4 allows process to state. But which county should we file the suit in?
be served in the same manner as in state court; in Are we free to pick any county we wish? Perhaps we
others, it imposes its own requirements. should encourage the defendant to settle by choos-
ing a county that will be expensive for him to litigate
In Rem and Quasi-In Rem—We have said that in? No; venue rules limit our choice.
personal jurisdiction is the power to render a deci- Under the venue rules of most states, we are al-
sion that will be binding on the persons who are ways free to choose a county in which any defen-
sued. Rare situations may arise, however, in which dant resides. Depending on the state and the cir-
you do not need the decision to be binding on the cumstances of the case, other permissible choices
may include the plaintiff’s county of residence, or versity case, we can use choice 3 only if the action
the county in which the events in dispute occurred. could be brought in no other district.
In routine cases, venue issues rarely arise— Clear? No? As we said, you will be disappointed
quite commonly, the parties, the attorneys, and the if you expect venue rules always to make sense. The
dispute are all tied to one county, and that is where best approach is to analyze each case based on its
the suit is filed. In the rare case in which there is own facts.
some compelling reason to file in a county in which
venue is not obvious, it is necessary to read the Remedies—What happens if we file suit in a court
venue statute for the forum state to decide whether for which venue is not proper? The outcome is partly
the case can proceed there. up to the defendant. Venue rules, unlike subject mat-
ter jurisdiction, can be waived, and if the defendant
Federal Court—Venue in federal court is gov- is satisfied with the plaintiff’s choice of forum, she
erned by a federal statute, 28 U.S.C. §1391. (There can simply keep quiet about any venue defect and
are a few extra venue options in certain special the case will likely proceed. Or the defendant can
cases, such as copyright and shareholder suits, but move to dismiss the case on the grounds of improper
in general, 28 U.S.C. §1391 is the place to look when venue. The defendant must raise a venue defense
you have a federal venue question. Also, be warned promptly [in federal court, in the first responsive
that Congress completely rewrote 28 U.S.C. §1391 in pleading; see FRCP, Rule 12(h)] or it will be waived.
1990, so court opinions from before 1990 may not If venue is improper and the defendant objects
reflect current law.) in time, the court can dismiss the case. This is not
In state court, as we have seen, venue applies at necessarily the disaster for the plaintiff that it might
the county level. Venue rules tell us whether we can seem, since the plaintiff will usually be free to refile
file in a particular county. In federal court, venue ap- in some other court, as long as the statute of limita-
plies at the district level. In many states, there is only tions has not run out.
one federal district, so the district boundaries and In federal court, as well as in the courts of some
the state boundaries are the same. Populous states states, there is one other option: The judge can or-
have more than one district—New York, California, der the case transferred. Federal courts can, in fact,
and Texas each have four, and a number of states order cases transferred to some other district even
have three. In these states, federal venue rules may when venue is proper, as we are about to see.
limit us to a particular district within the state.
The federal venue statute, 28 U.S.C. §1391, gives Consider Defendant’s
us three main venue choices. The first two are the Step 5 Transfer Options
same in all federal cases; the details of the third
choice depend, for reasons understood by no one, After Steps 2, 3, and 4 we should be left with a list of
on whether the case is based on diversity jurisdic- courts in which we can file our suit without inviting
tion or not. motions to dismiss due to jurisdictional or venue
Choice 1 is a district where any defendant re- problems. Can we then be confident that the case
sides, but there is a catch: We can use choice 1 only will be heard in the court we select?
if all the defendants reside in the same state. (No- Not necessarily. Depending on the plaintiff’s
tice that venue depends on which state the defen- choice of forum, the defendant may have a counter-
dants are residents of, not which state they are citi- move or two to make. Before making a final decision,
zens of. Do the two terms mean the same thing? The the plaintiff must take into account the risk that the
courts have not given a definitive answer.) defendant can interfere with the choice made.
Choice 2 is a district in which “a substantial
part of the events or omissions giving rise to the Removal—Suppose the plaintiff could have filed
claim occurred.” the case in either federal district court or state
In cases in which the federal court’s subject mat- court, but chose state court. Is the defendant stuck
ter jurisdiction is based solely on diversity of citizen- with the choice? Not usually. In most cases that
ship, choice 3 is any district in which personal juris- would qualify for federal subject matter jurisdic-
diction over all the defendants can be obtained. In tion, the defendant has a right of removal—the de-
practice, this means that if we can get long-arm juris- fendant can have the case transferred to federal
diction over all the defendants, venue will be proper. court. 28 U.S.C. §1441 is the general statute on re-
In cases in which any basis for subject matter moval; other removal provisions exist in certain
jurisdiction besides diversity exists (i.e., if there is specialized types of cases.
any federal question involved in the case), then The procedure for removal is laid out in 28
choice 3 is “any district in which any defendant may U.S.C. §1446. The defendant initiates the process by
be found,” but there is another catch: In a nondi- filing a notice of removal in the federal district court
in the same state in which the plaintiff filed the state typically feel free to grant a transfer if it appears
court action. The defendant must do this within that some other district has a significantly greater
thirty days after receiving the complaint or the connection with the dispute.
right is lost. There are procedures by which the
plaintiff can contest the removal if the plaintiff Decide Which of the
thinks the case does not qualify to be removed. If
Step 6 Possible Courts Is Best
the removal is successful, the case then proceeds in
federal court as if the plaintiff had filed it there in Finally, we come to the whole reason for all of this
the first place. laborious evaluating of possible forums: We want to
Why remove? A common situation is the suit in file in the place that gives our client the best possi-
state court against an out-of-state motorist: Sam ble shot at winning. The choice of forum will auto-
Snowbird from Minnesota runs over Larry Local matically have a huge impact on what procedure
while vacationing in Albuquerque, New Mexico. will be followed, what rules of substantive law will
Larry sues in New Mexico state court. Does the be applied, and how the case will be decided. Why
state court have jurisdiction? Yes, under the long- do we care? It is entirely possible, even likely, that a
arm statute, since the accident occurred in New given lawsuit would succeed in state A and fail in
Mexico. Would the federal court have jurisdiction? state B merely due to differences in the laws of the
Yes, because of diversity of citizenship, assuming two states.
Larry is suing for more than $50,000. Would Sam
prefer to be in federal court? Quite likely—whether Procedural Law—Every court applies its own pro-
justified or not, many people have a perception that cedural law. (Recall that procedural law gives us the
federal courts are less likely to administer a nasty rules on how to conduct a lawsuit; substantive law
dose of local justice to the outsider. (Have you ever gives us the rules by which the court will measure
gotten a speeding ticket while driving through an- the defendant’s conduct and decide who wins or
other state? Did you get the same treatment as a lo- loses. If you are unsure of the distinction between
cal would have?) substance and procedure, this would be a good
time to reread the sidebar “Substance v. Procedure”
Forum non Conveniens—Suppose the plaintiff de- in Chapter 1.)
cides to file in a state court that has jurisdiction and In the federal courts, the source of procedural
in which venue is proper, but the place chosen has law is the Federal Rules of Civil Procedure. Thus,
little or no connection with the parties or the events procedural law is theoretically uniform in all federal
in dispute. (Why would the plaintiff do this? One district courts, whether the court is sitting in
reason might be to make things expensive and diffi- Alaska or Washington, D.C. In practice, there are mi-
cult for the defendant. Remember, litigation is a nor variations, in part due to local rules, in part be-
contest between adversaries, not a church social.) cause some of the discovery rules allow districts to
In such cases the court has the power to tell choose which of several options to follow, and in
the plaintiff to go elsewhere. The defendant can part because the U.S. Court of Appeals is divided ge-
move to dismiss based on the doctrine of forum ographically into thirteen circuits, each of which
non conveniens (Latin for “the forum is not con- may interpret the rules differently.
venient”). In practice, such motions are seldom In state courts, procedure is determined by
successful, because it is normally the plaintiff’s state law. In most states, the highest court issues
privilege to decide where to file. To get a case dis- rules of procedure, which are often patterned after
missed on forum non conveniens grounds, the de- the Federal Rules of Civil Procedure. In a few states,
fendant will have to convince the court that it would the legislature prescribes court procedure by
be very burdensome to proceed at the plaintiff’s statute. In all states, the interpretation of proce-
chosen location, because, for example, most of the dural rules is up to the appellate courts of the state.
witnesses and evidence are located in some other As a practical matter, procedure under the fed-
distant state. Even then, the case will probably stay eral rules is sufficiently uniform that most attor-
where the plaintiff filed it if the plaintiff can point to neys who have experience litigating in federal court
some legitimate reason for the choice of forum. in one district feel perfectly comfortable litigating
in another district. Local rules usually allow out-of-
Federal Transfer—In federal court, the defen- state attorneys to be admitted to practice before
dants chances of successfully arguing forum non any federal district court for the purpose of han-
conveniens are somewhat better. By statute (28 dling a single case (although a local attorney must
U.S.C. §1404), a federal district court can transfer often be retained as local counsel to assist).
the case to some other more appropriate district in- In state court, the situation is entirely different.
stead of dismissing it. In practice, federal judges Although the general principles are the same
everywhere, the details of state court procedure when the plaintiff sues in federal district court on a
are extremely variable from state to state, and it is cause of action based on state substantive law. (Can
the details that will get you sued for malpractice. this happen? Certainly; by definition, federal diver-
Few competent attorneys would even dream of han- sity jurisdiction cases involve causes of action
dling suits in the state courts of some other state based on state substantive law; otherwise they
without having a license to practice there and a would be federal question cases.)
thorough familiarity with the court system. It is Now a further complication sets in: In diversity
nearly always preferable to refer the case to a liti- cases, federal courts apply federal procedural law
gator in the state in which the suit will proceed. (the federal rules as interpreted by the federal
courts), but the substantive law is the law of the
Substantive Law—A given cause of action may be state in which the court sits, including state appel-
based on federal substantive law or state substan- late court case law. In other words, a federal district
tive law—it is up to the plaintiff to decide under court sitting in state X should, in theory, determine
which substantive laws to sue. For example, if you substantive law issues exactly as if it were a state
sue someone for violating the federal securities court in state X, deferring to state X appellate court
laws, your cause of action will be based on federal decisions exactly as a state trial court would do.
substantive law. If you sue someone for the tort of (For some historical flavor on this, see the sidebar.)
battery, your cause of action will be based on the That seems easy enough, until you realize that the
state substantive law of battery. line between procedure and substance is not always
Federal law causes of action: With federal very clear. For example, states have statutes of limita-
causes of action, it is relatively easy to decide what tions that require lawsuits to be filed within a certain
substantive law will apply. Almost always, the cause number of years after the cause of action arises. Are
of action will be based on some federal statute. these procedural or substantive? (Substantive, ac-
Assuming personal jurisdiction can be obtained, the cording to the U.S. Supreme Court.) Fortunately, in
suit can be filed in any U.S. district court in any modern practice, such questions seldom arise. As a
state, or in the state courts of any state, and the sub- practical matter, in federal district court, we can gen-
stantive law applied will always be the same. eralize and say that except in rare instances:
State law causes of action: You might suppose
1. Any issue covered by the Federal Rules of Civil
that state law rules of substantive law would also be
Procedure is procedural, and the rules control.
the same everywhere in the country—that is, that
what “negligence” is in California would be “negli- 2. Any cause of action involving a federal statute is
gence” in New York. It turns out that nothing could a federal question, and federal substantive law
be further from the truth. Each state has its own leg- (including federal appellate court interpreta-
islators and appellate judges, each with their own tions) controls.
opinions about what the law should be, and each 3. On any other issues, state law controls, as in-
free to legislate accordingly. terpreted by the state appellate courts of the
You might also suppose that each state would state in which the district court sits.
always apply its own substantive law. In general, you
would be right, but there is a complication: A part of Other Factors in Choosing a Forum—In decid-
the substantive law of each state consists of “choice ing which of several possible forums offers the best
of law” laws, which may require a given case to be chance of winning, the law to be applied is one im-
decided under the substantive laws of some other portant consideration. A number of other factors
state! Thus, for example, if Dr. Collins sues Shannon are important, which we mention only briefly.
in Texas (assuming personal jurisdiction could be Caseload and average time to trial: Crowded
obtained), the Texas “choice of law” laws might well dockets are a modern-day fact of life. In some fo-
require the Texas court to decide the case according rums, it may take an average of as much as five years
to Nevada law of battery, since Nevada is the place to get a case to trial; in others, it may be possible to
where the battery occurred. To make matters even be in front of a jury telling your story in as little as a
more complicated, the “choice of law” laws vary year after filing the complaint. Long delays usually
from state to state, and several intricate constitu- favor the defendants, since the defendants ordinar-
tional issues are involved. Law schools offer entire ily prefer to delay the possibility of having to pay the
courses devoted to “choice of law” laws; this is not plaintiff anything for as long as possible.
a simple subject, and cases with connections to Who decides?—Judges and jury demographics:
more than one state often require careful research It goes without saying that the judge to whom a
of the choice of law issues. lawsuit is assigned may have a very great influ-
State law causes of action in federal court: Are ence on the outcome. Judges are people, with the
you confused yet? If not, consider what happens usual array of biases and prejudices. Intellectual
SIDEBAR
Swift, Erie, and the Rules of Decision Act
Historically, the idea of federal district courts defer- in published opinions. When the Rules of Decision Act
ring to state appellate courts in their interpretations of refers to “the laws of the several states,” does it mean
state law was a matter of considerable controversy. only the statutes of the states, or does it mean the
(This issue, known as the Erie doctrine after the leading state common law as well?
Supreme Court case, is a cherished icon among law pro- In 1842, the U.S. Supreme Court decided the case
fessors and tends to be elaborated in bewildering detail Swift v. Tyson, 16 Pet. 1, 10 L.Ed.865 (1842). The is-
in procedure textbooks; we will try to restrain ourselves, sue was whether the suit would be decided under New
since the matter has now been settled law for some sixty York state common law of negotiable instruments, or
years and, quite frankly, none of us has seen a single whether the federal courts were free to devise their
Erie issue in more than fifty combined years of litigation own federal common law. Justice Story, writing for the
practice.) Court, held that federal courts should devise their own
The controversy surrounded a 1789 act of Con- common law, so that the common law applied in fed-
gress called the Rules of Decision Act. The act still ex- eral courts would be uniform throughout the whole
ists, essentially unchanged from its 1789 incarnation. country.
You can find it at 28 U.S.C. §1652, and it says: Legal scholars spent the next hundred years de-
bating the issue. Finally, in 1938, in a case whose par-
The laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of ticulars every first-year law student can recite in his or
Congress otherwise require or provide, shall be re- her sleep—Erie Railroad Co. v. Tompkins, 304 U.S. 64
garded as rules of decision in civil actions in the courts (1938)—the U.S. Supreme Court overruled its earlier
of the United States, in cases where they apply. decision in Swift v. Tyson and held that there is no fed-
eral common law, that it would be an unconstitu-
Remember that in lawsuits, the substantive law tional invasion of states’ rights to create one, and that
we are dealing with often does not come from federal courts would henceforth defer to the common
statutes. Instead, it comes from the common law— law as established by the state appellate courts of the
that is, the decisions of appellate courts as explained state in which the district court is sitting.
abilities vary, as do judges’ levels of interest in Your Local Notes

particular areas of the law. Most urban courts
have a number of judges, and cases are assigned _________________________________________________
at random, so usually you will not have the op- _________________________________________________
portunity to select a particular judge for your
case. However, it seems that the bench (meaning
all the judges taken together) of a particular court
often develops its own personality, enough so that Still another factor to consider is the effect of a
there may be a discernibly higher probability of forum choice on the demographics of the eventual
getting your particular lawsuit assigned to a jury pool. Trial lawyers usually have very definite
“good” judge (defined as one more likely to decide ideas about the kinds of jurors they would prefer in
important issues in your favor) if you file in, say, a particular case; choosing a forum in which the de-
U.S. district court than if you file in your state’s sired kinds of people are prevalent in the local pop-
state court (or vice versa). ulation is one easy way to gain an advantage in jury
Another important variable is the way in which selection.
judges are assigned. In some courts, once a judge is Convenience, cost, and attorney familiarity:
assigned to your case, you are stuck with the as- All other things being equal, attorneys usually pre-
signment. In others, there is a procedure by which fer to litigate in their home state. The procedure
you can “strike” a judge and have a different one as- and the court systems are familiar, and the judges
signed. Some courts take the type of case into ac- and the local substantive law are known quantities.
count in assigning cases to judges, so that judges Filing in another state, whether in federal or state
can develop “specialty” expertise; in other courts, court, will usually require bringing in a local lawyer
case assignments are totally random. What are your in the forum state to share the responsibility, and
court’s rules for changing a judge? Do you have to necessitate travel back and forth to the forum state,
have “cause” to get a new judge? all of which add to the costs.
Choosing a Court: sues. We will assume for now that any of the state
courts would have subject matter jurisdiction, sub-
Learning by Example ject perhaps to rechecking the issue if we should
narrow the list down to a state court with which we
Now we will apply our step-by-step analysis to the are unfamiliar.
problem of deciding where Allen Porter might file There does not seem to be any federal ques-
suit on Shannon’s behalf. To keep the example rea- tion involved, so federal court jurisdiction, if any,
sonably simple, we assume that she will sue only Dr. would have to be based on diversity of citizenship.
Collins and the hotel. Does it exist? The plaintiff’s citizenship is Arizona;
the defendants’ are Texas, and Delaware and New
List All Courts Where Jersey. No defendant has the same citizenship as
Step 1 the Case Might Be Filed the plaintiff, so there would be diversity jurisdic-
tion as long as the amount in controversy is
To list the possible forums, we first need to know greater than the jurisdictional limit of $75,000.
what states the parties are citizens of. We know that Therefore, any of the federal courts would have
Shannon is a resident of Arizona and Dr. Collins is a subject matter jurisdiction.
resident of Texas. What about the hotel? After in-
vestigating, we find that Banbury Park Hotel is
owned and operated by Park Hotels Group, a
Check for Jurisdiction of the
Delaware corporation with its main office in New Step 3 Person of Each Defendant
Jersey and hotels in a number of states including
Nevada, Texas, and Arizona.
Our list of forums therefore includes these Now we come to a factor that will reduce the size
possibilities: of our list. First of all, we can quickly reject
1. Arizona state court (Because of the advantages Delaware and New Jersey. Because Dr. Collins has
of convenience, familiarity, and cost effective- not caused an act or event to occur in either of
ness, the attorney’s local state and federal those states in connection with this dispute, we
courts should always be on the list); could not get long-arm jurisdiction over him
there. Although we might conceivably get tag ju-
2. U.S. District Court for the District of Arizona;
risdiction if we followed him around and he en-
3. Nevada state court (The place where most of the tered one of those states, a New Jersey or
events happened should always be on the list); Delaware court would most likely dismiss under
4. U.S. District Court for the District of Nevada; the forum non conveniens doctrine if we did so,
since the case has no real connection to either of
5. Texas state court (A defendant can always be those states.
sued in the state in which he or she resides); and In Nevada, we could clearly get jurisdiction of
6. U.S. District Court for the _____ District of Texas. the person of Park Hotels Group, Inc., since it is do-
ing business there and our claim arises from that
These are the main alternatives; we could also list
business. We could likely get long-arm jurisdiction
as more remote possibilities:
of Dr. Collins because he caused an act or event to
7. Delaware federal and state courts (Park Hotels’ occur in Nevada.
place of incorporation); In Texas, we could get personal jurisdiction of
8. New Jersey federal and state courts (Park Ho- Dr. Collins since he is a citizen of Texas. Texas
tels’ main office); and courts should have jurisdiction over Park Hotels
Group, Inc., since it operates a hotel in Texas and is
9. Any other state in which Park Hotels does therefore “present” there.
business. In Arizona, the courts would have jurisdiction
over Park Hotels Group, Inc., since it operates a ho-
Check Each Forum tel in Arizona. Dr. Collins presents a difficult prob-
Step 2 for Jurisdiction of the lem, which Allen Porter solved in our hypo by con-
Subject Matter vincing Dr. Collins’s attorney to consent to suit in
Arizona. Had Dr. Collins not consented, the only re-
State trial courts have general subject matter juris- maining possibility would have been to catch him
diction, and garden-variety tort suits are unlikely to inside Arizona and serve process on him, an uncer-
involve any esoteric subject matter jurisdiction is- tain strategy at best.
Decide Whether Venue become familiar with new judges and procedural de-
Step 4 Would Be Proper tails (time consuming and a risk of making mistakes
arises). If Porter had concluded that the case should
State court venue rules vary from state to state. To be filed in Nevada, he might well have decided sim-
decide in which counties in Texas, Arizona, or ply to refer the case to a Nevada attorney.
Nevada Shannon could file suit, we would have to Why federal court? The choice between federal
consult each state’s venue statute. Often, venue and state court is a judgment call. In our hypo, we
statutes allow suit in any county in which any de- can surmise that one of the out-of-state defendants
fendant resides, or failing that, in which the plaintiff would have petitioned to remove to federal court,
resides. had Shannon filed suit in Arizona state court. Better,
Two of our federal court possibilities, Arizona then, to save time and expense and file in federal
and Nevada, are states that have only one federal dis- court in the first place.
trict, so venue issues do not arise—there is only one
possible venue. Texas has four districts, and, under
the federal venue statute, 28 U.S.C. §1391, venue is Choosing a Court:
proper in any district in which personal jurisdiction
over all defendants can be obtained. In theory, this Learning by Doing
means we could sue in any Texas district; in practice,
Your assignment for this workshop is to analyze the
a choice other than the Northern District (which in-
jurisdictional and choice-of-forum issues from the
cludes Dallas) would invite a transfer motion.
standpoint of Dr. Collins. Assume the following:
You are a paralegal in the law office of Roger
Consider Defendant’s
Step 5 Transfer Options
Yarborough, attorney for Dr. Arthur Collins. Assume
that Dr. Collins is a resident of your city, and that
Roger Yarborough practices in your city. Assume that
We have already seen that the federal courts of Ari- Park Hotels Group, Inc., operates a hotel in your city,
zona, Nevada, and Texas would have jurisdiction and assume that Shannon Martin often comes to your
over Shannon’s suit. Therefore, if Shannon files suit city to make sales presentations. The remaining facts
in the state courts of any of those states, either Park are as described in the hypo.
Hotels Group or Dr. Collins could petition to remove After discussing the case with Allen Porter, Roger
the case to the federal court of the same state. Yarborough realizes that Porter is about to file suit on
If Shannon files in Arizona federal court, there is Shannon’s behalf, naming Dr. Collins as one of the
some possibility that Park Hotels Group could per- defendants. Yarborough decides that he would prefer
to seize the initiative and file the suit himself. He
suade the judge to order the case transferred to an-
assigns you to prepare a memo listing the possible
other district (probably Nevada). The argument
places where Dr. Collins might file suit, and the issues
would be that because the important events oc- and problems that would arise in connection with
curred in Nevada, most of the witnesses are likely to each choice.
be there.
EXERCISES
Decide Which of the Possible
Step 6 Courts Is Best In carrying out this assignment, you should follow
the step-by-step formula described in this workshop.
In our hypo, Allen Porter chose to file suit in federal 1. List all of the courts in which Dr. Collins’s suit
district court in Arizona. Why Arizona? First of all, might conceivably be filed.
the other choices are Texas and Nevada, the home
states of the two defendants. Do juries tend to favor 2. For each of the courts you listed, give your
their own state residents in suits brought by out- conclusion about whether the court would
siders, especially where (in Nevada) the suit in- have subject matter jurisdiction, and the rea-
volves a major state industry (hotels and tourism)? sons for it.
Is there such a thing as a “home court advantage” in 3. For the state and federal courts of your state
litigation? In our opinion, probably so. only, locate the applicable long-arm statute and
Another reason for choosing Arizona is that that read it. In a suit by Dr. Collins against Shannon
is where Allen Porter practices. Choosing Nevada or and Park Hotels Group, could you obtain per-
Texas would mean having to employ local counsel to sonal jurisdiction over both defendants? List
assist (an expense); having to travel back and forth each possible basis for doing so, and indicate
to attend hearings (another expense); and having to what problems each might entail.
4. For the state and federal courts of your state the possible strategies that Park Hotels Group
only, locate the applicable venue statute and might try in order to get the case into some
read it. In a suit by Dr. Collins against Shannon other forum, and discuss whether you think
and Park Hotels Group in your state’s state each strategy would work and why. Suppose
court, in which county or counties would venue Park Hotels Group would prefer to litigate in
lie? In federal court, in which district would Nevada—can you think of any way in which
venue lie? they can achieve that result?
5. Look up the removal statute and the federal 6. Suppose you could file Dr. Collins’s suit against
transfer statute and read them. Assume that Dr. Shannon and Park Hotels Group either in fed-
Collins sues Shannon and Park Hotels Group in eral or state court in your state. Which would
the state courts of your state, and Park Hotels you choose and why? List all the factors you
Group does not like that choice of forum. List all can think of that might influence the choice.
PRACTICE POINTERS
Document Management
One of the crucial tasks a litigation legal assistant performs is document

management. This includes the production, organization, review, and analysis
of documents. Documents are extremely important in any case and are the
most common “smoking gun” around which many a legal drama revolves.
What makes legal assistants particularly valuable in reference to document
management is that attorneys generally dislike anything having to do with the
reading or organizing of documents.
How documents are managed can make or break a case. A paper trail is of-
ten times a more effective witness to a chain of events than is a human. The hu-
man memory can falter or fill in the blanks, but documents do not fabricate. Doc-
uments can either substantiate or discredit a witness’s story, thereby enhancing
a witness’s credibility or destroying it. Documents can also illustrate relation-
ships between parties and establish a chronology of events. They can be used
to refresh a witness’s memory or to impeach a witness. They are extremely pow-
erful tools in the hands of an astute litigator and the wise legal assistant learns
how to masterfully manage them.
Therefore, you must carefully review, analyze, and organize every docu-
ment you receive. Merely skimming over documents will not afford you the
opportunity to pick up the kind of detail that attorneys are looking for in prov-
ing their cases. You must read them in the context of the primary legal ques-
tions raised in the case and, relying on your logic and understanding of the
law, seek those facts that are especially pertinent to proving your client’s po-
sition and discrediting your opponent.
You must then organize each document in such a manner that it is easily
accessible by you and anyone else who seeks it. Attorneys are notorious for
popping their heads in the door and demanding that you immediately retrieve
a document they need. You must be so familiar with each document and the
overall organization of all of the documents that you can literally lay your
hand on whatever you need within minutes.
Furthermore, as the custodian of all original documents, you must ensure
that documents are never misfiled or lost. No matter who has access to the
files, it is the responsibility of the legal assistant to make sure all documents
are correctly filed.
TECHNO TIP
One way of finding out about your reversals v. those affirmed) and hope-
judge in the federal district court is to fully get a glimpse of her judicial phi-
review his opinions. Most rulings by dis- losophy. For example, does the judge
trict court judges are not published but grant motions for summary judgment
are memorandum opinions that cannot on a regular basis? If so, is she affirmed
be cited as precedent. They can, how- on appeal more often than not? Is the
ever, be cited to establish the law of the judge inclined to grant a new trial, en-
case, res judicata or collateral estoppel. ter judgment n.o.v., or direct a verdict?
Westlaw® does maintain a database on Today many, if not most, state ap-
some of the memorandum opinions. pellate courts have their own web sites
You may want to go to the local district and post their decisions as soon as they
court to see if an index of each judge’s are filed. Although the database is usu-
cases is maintained to see if he has had ally quite limited (only the current
prior, similar cases to yours. year’s decisions to date or the past few
Most state trial courts do not have years), many are searchable—and all
such an index. The state’s trial court are free. You may also want to contact
opinions are not published (except as the person in charge of the court’s web
they may be quoted from in an appel- site. By asking just a few questions you
late decision). You can, however, search may find out what new “bells and whis-
the reported case database to find out tles” may soon be available. You might
from which cases a particular judge was also be able to find a central web site
appealed. From a cursory review of with links to all the other states or other
these cases you can determine the useful databases.
judge’s appellate record (percentage of
FORMS FILE
For your forms notebook we suggest you prepare a list of all the ju-
risdictional elements you need to consider when deciding in which
court to sue. Although you think you will never forget this information
after you have been tested over it, you will find that this is precisely the
kind of information that fades away after you have studied it. Although
jurisdictional issues are typically dealt with by attorneys, you will bene-
fit from having a quick reference you can use to refresh your memory.
KEY TERMS
Appellate jurisdiction Jurisdiction of the person Original jurisdiction

Choice of forum Jurisdiction of the subject Pendent jurisdiction
Diversity of citizenship matter Venue
jurisdiction Jurisdictional amount
Domicile Limited subject matter
Federal question jurisdiction jurisdiction
Forum non conveniens Long-arm statute
General subject matter Minimum contacts
jurisdiction
Working Up a Case
for Suit
WORKSHOP
3
INTRODUCTION: CASE WORKUP litigation.) This duty extends to everyone in the
firm, including paralegals. Client business is not a
In litigation as in most other human endeavors, the proper subject for casual gossip, even with other
odds favor those who prepare diligently. Prepara- employees of the firm and most especially with out-
tion of your case should begin at the moment of first siders. You may not talk about the business of the
contact with the prospective client. Whether you firm’s clients to your friends or even to your
represent plaintiff or defendant, you can do a great spouse.
deal during the early stages that will improve your In real life, clients expect more than just confi-
chances of winning. dentiality. They expect, and are entitled to, absolute
In this workshop, we present a systematic ap- privacy. Even if the particular facts that you are talk-
proach for pre-suit case preparation, consisting of a ing about happen to be (technically) public infor-
series of steps that will merit consideration in most mation (i.e., described in some paper that has been
if not all cases. The steps suggested are intended as filed with the court), trust us, the client will not ap-
a guide, not as a rote formula to be mechanically appreciate it when he finds out you have been talking
plied. We stress that each case is unique, and you about the case to others. Similarly, when you are out
will doubtless find yourself adding or subtracting having lunch with one of your paralegal friends,
steps as circumstances dictate. even if you both work for the same firm, find some-
If you represent a plaintiff, these preparation thing else to talk about; if your conversation is over-
steps should normally be well under way, if not ac- heard and reported, unpleasant consequences are
tually completed, before you file a complaint with almost a certainty.
the court. If you are defending, you may not have Keeping your promises: Clients have a right to
the luxury of pre-suit preparation, because your expect you to keep your promises. In our experi-
client may not contact you until he or she has actu- ence, broken promises are probably the foremost
ally been sued. What then? You do as much as you cause of clients becoming angry with their lawyers.
can, as early as you can, preferably before filing an When you tell a client that you will have a document
answer. ready for filing on Friday, do it! Avoid overpromising.
If it cannot be done by Friday, don’t tell your client
On the Care and Feeding of Clients—Much of that it will be. And on the (hopefully) rare occasions
the information you need to get started will come when you miscalculate, call the client before the
from your client. Lawyers often rely on paralegals to promised deadline and explain. On a related theme,
do the detail work in preparing a case for filing, and be scrupulous about being on time for appoint-
this often brings paralegals in direct and frequent ments with clients.
contact with clients. Communications with clients: Clients rightly
Keeping the clients happy is job number one at expect their lawyers to keep them apprised of what
every law firm, large or small. For the paralegal, an is going on in their cases and to answer their ques-
offended client is the quickest of all tickets to the un- tions promptly. As a litigation paralegal, it is very
employment line. In large part, maintaining good important that you have a clear understanding with
client relations is a matter of common courtesy and your supervising attorney about the scope of your
consideration, the same qualities that enhance any role in furnishing information to clients. Ask your
interpersonal relationship. (If you feel a need to im- supervising attorney how you should respond
prove your general client relationship skills, the when clients ask you questions, particularly those
classic book by Dale Carnegie, How to Win Friends that might be interpreted as asking for legal advice.
and Influence People, is well worth a read.) Find out what kinds of information you are autho-
Of the various ways of making clients ex- rized to give clients. Many attorneys find it worth-
tremely unhappy, a few recurring themes are worth while to send copies of all correspondence and
mentioning. court papers to the client automatically. Find out
Client confidentiality: First—and the impor- what your firm’s policy is and follow it. Often, su-
tance of this principle cannot be overstated— pervising attorneys will want to review your corre-
lawyers have a duty to keep their clients’ business spondence with clients before it is sent; be sure you
confidential. (See also Workshop 19 on the ethics of know what is expected of you.
254 WORKSHOP 3 Working Up a Case for Suit
Figure W3–1 Client Interviewing and Case Workup Steps
Step 1: Determine Who the Adverse Parties Are

Step 2: Determine What the Dispute Is About
Step 3: Determine What Damages Are Involved
Step 4: Determine When the Dispute Arose
Step 5: Determine Where to Get More Information
Step 6: Get Needed Administrative Information
Step 7: Inform the Client
Step 8: Properly Document the Outcome
Step 9: Research Causes of Action and Defenses
Step 10: Assemble Available Documents
Step 11: Interview Main Witnesses
Step 12: Determine to Whom Demand Should Be Directed
Step 13: Describe Facts of Dispute
Step 14: Estimate Probability of Prevailing
Step 15: Calculate Damages
Step 16: Make a Specific Demand
Case Workup: must be made by the attorneys (not the paralegal)

and will depend on a number of factors. We mention
Step-by-Step Instructions many of these in the discussion to follow, since we
assume that you are interested in knowing how at-
Figure W3–1 shows the steps we will cover in our torneys decide which cases to accept. If you work in
discussion of case workups, which is broken a law firm in which paralegals participate in client
down into three sections: (1) client interviewing, interviewing, your supervising attorney will tell you
(2) investigation, and (3) settlement demands. precisely when and how you are to interact with her
regarding acceptance of cases.
CLIENT INTERVIEWING STEPS
Preparation—Checklists or questionnaires are an
It goes without saying that the kinds of information invaluable tool to ensure that important facts are
to be obtained from prospective clients vary from not missed. If you work in a firm whose practice is
one case to another. This workshop is intended to devoted mainly to a specialized type of case (e.g.,
familiarize you with some of the basic information automobile accidents), your employer will un-
that will be required in nearly every case. As you doubtedly be using them already. If not, you will
gain experience, you will want to add new cate- want to begin creating your own. A good checklist is
gories, tailored to the types of cases on which you always a work in progress. As usual with litigation
are working. forms, whenever you see a good interview checklist,
The role of paralegals in client interviewing try to get a copy, add it to your form file, and use it
varies widely. In some firms, paralegals conduct all to improve your own.
or most initial client interviews; in others, especially As useful as checklists and questionnaires are,
those devoted to more complex litigation, attorneys however, they are not a substitute for good judg-
do the client interviewing, perhaps with a paralegal ment. Before conducting an interview (and during
assisting. We describe the steps in this workshop as the interview, too!) take some time to think about
if you, the paralegal, were performing each of the what you are trying to accomplish. Your ultimate
tasks. (Note, that the same principles apply if an at- goal is not just to collect information; it is to win a
torney is conducting the interview.) lawsuit. What kinds of facts would help do that?
At some point, a decision will have to be made What things can your client tell you that will help
about whether to accept the case. This decision you find the facts that you need?
WORKSHOP 3 Working Up a Case for Suit 255
SIDEBAR
An Interview Checklist
Although an interview checklist is a flexible docu- Medical Information:
ment, certain basic information is almost always nec-
Paramedics at scene? Was client treated at the
essary. You may want to fashion a separate checklist
scene? Was an ambulance called? Was client trans-
for each type of case your firm accepts, such as per-
ported? Which hospital? Emergency room care?
sonal injury, other torts, contracts, securities, and
Postaccident treatment; with family doctor or special-
bankruptcy. An example of a “basic” personal injury
ist(s)? You need to get the names and addresses of all
checklist follows. Remember that you do not want to
treating health care providers (such as doctors and
appear to be interrogating your client. If possible, you
chiropractors). Obtain all funeral expenses if a death
may want to send her home with a copy of your firm’s
occurred.
standard personal injury interrogatories to be an-
swered at her leisure. If your court has adopted a set Current Health Status:
of standard interrogatories, they might be used, either
Prior Medical Treatment:
separately or together, with your firm’s. If the answers
are not relevant or necessary to your representation of Note—we would be ashamed to have to admit
the client, do not ask them. how many times prior treatment to a client, often for
similar symptoms, was discovered by the opposing
Name:
side from a review of our client’s medical records. Be
Address: very, very thorough in eliciting the client’s prior med-
Spouse: ical history. Ask specific questions about possible prior
Children: treatment for similar injuries or symptoms to those
claimed to have been caused by the incident.
Employer:
Title: Medical Insurance Coverage:
Other Employment Information: Does the client have medical coverage? Are her
medical bills from the incident being billed to the car-
Note—do not ask for salary or other income in- rier? Who is the carrier and what type of plan is it?
formation unless needed. If the case does not warrant Note—some medical plans have the right to seek re-
a lost wage claim, you have no reason to ask a per- imbursement for any medical payments made due to
son’s income. the act of a third party; most employer-provided plans
Social Security No.: are ERISA plans that allow for reimbursement and are
governed by federal, not state, law. If there is no in-
Prior Marriages:
surance, or insurance will pay for the incident or the
Note—only if relevant to the case. health care professional, did the client give a lien to
Prior Litigation Experiences: the provider to insure payment? If so, make sure you
Date, Time, Place of Incident: get a copy of the lien!
Detailed Narrative of Incident: Automobile Insurance Coverage:
Find out who the potential defendants are. Let the Does the client have insurance to cover any prop-
client ramble as much as she will. Afterwards direct erty damage that occurred (collision)? Is uninsured
her to areas that may have been overlooked, such as, and underinsured motorist coverage available? Did
witnesses, speeds, other vehicles involved, passengers, she carry any medical payments coverage? Is there
lighting conditions, colors, traffic control devices, etc. any “bells and whistles” coverage that might be ap-
plicable, such as accidental death and dismember-
Investigation:
ment or disability coverage.
Was incident investigated? If so, by whom? Was a
report made? If so, does the client have a copy?
SIDEBAR
An Interview Checklist continued
Other Insurance Coverage: Post-Interview Follow-Up:
Is there nonautomobile disability coverage, acci- After you have taken the initial information you
dental death or dismemberment coverage, credit card will need to obtain the medical, police, and insurance
coverage, mortgage coverage, and the like? Many records of the client. Review them carefully with your
people do not know what insurance coverage is pro- outline. Discrepancies almost always can be found.
vided and/or when it is applicable. You will be doing Bring the client back to the office to review the mate-
your client a disservice by not thoroughly checking for rials with you and explain any new issues you have
any source of compensation that might be due them, found. If you sent the client interrogatories, review
even though your firm will not share in the proceeds! them with her as well.
Your Local Notes illustrate this: Suppose you are assigned to inter-
view a new client, Joe Jogger, who was injured when
_________________________________________________ a delivery truck hit him while he was crossing the
_________________________________________________ street. You introduce yourself, and Joe immediately
starts telling you all about what happened; being
polite, you do not interrupt. Finally, Joe runs down
a bit, and you ask him who the truck belonged to.
The Interview—Clients expect lawyers and para- Bad news: Joe was run over by Steve’s Trucking
legals to conduct themselves as professionals. Company, which happens to be your senior part-
Most clients are not experts on litigation, so they ner’s oldest and most lucrative client.
are not equipped to judge the quality of your work Obviously, you cannot accept the case, because
on its merits. Instead, they will judge you mainly by your senior partner is not about to sue his best
the way in which you relate to them. Always try to client. But now you have a worse problem: You have
set a professional, business-like tone when dealing obtained confidential information from Joe, which
with clients; do not use slang or profanity, do not means that your firm cannot ethically represent
joke about the case, do not wear inappropriate at- Steve’s Trucking Company in this case, either. Your
tire. Take the case seriously; you can be sure your senior partner will have to refer Steve to some other
client does. lawyer, at least for this case—an outcome not likely
In the interview, listen carefully and take notes. to improve the career of the paralegal who caused it.
In fact, we recommend that you get in the habit of A further problem is that not all fact situations
taking notes whenever you are talking about a case are as simple as the Joe vs. Steve hypo. Prospective
to anyone, whether it is your client, a witness, or (es- clients usually know, or think they know, whom
pecially) your supervising attorney. In our experi- they want to sue. But often, after hearing the facts
ence, the failure of inexperienced paralegals to take and evaluating the client’s position, you will find
notes when receiving instructions is one of the chief that the best claim is against someone whom the
gripes of supervising attorneys. Invariably, it leads client never thought of suing. Therefore, when you
to a return visit to clarify something that the parale- ask the prospective client who the adverse parties
gal should have written down in the first place. are, cast your net wide, and try to identify every
person, every corporation or other entity, and
Determine Who every insurance company that may be involved in
Step 1 the Adverse Parties Are the dispute, however peripherally. And do this be-
fore you get into the facts of the dispute itself.
The first task in interviewing a new client is to find Once you have the names of all the potentially
out who else may be involved in the dispute. The adverse parties, how do you find out whether your
purpose is obvious: An attorney cannot ethically firm represents any of them? Most law firms main-
represent a client if he already represents one of the tain a conflict database of some kind. In a very small
adverse parties. office this may consist of nothing more than a card
This information must be obtained before you file of all of the firm’s clients. In larger firms, the con-
get into the facts of the dispute. A simple hypo will flict database will be computerized, often under the
control of a single employee who is responsible for From the law firm’s standpoint, the issue is
maintaining it and to whom you would submit your whether the case is one on which the firm can
list of names for checking. If it appears that your make money. Like it or not, a law firm is a business,
new client’s case may involve someone whom the and its continued existence depends on making a
firm has represented in the past, the firm’s attor- profit. (Pro bono, or charity, cases may sometimes
neys will have to make a decision about whether to be accepted, but most attorneys prefer to know in
accept the representation. advance when they are doing so!) Financial con-
siderations loom especially large in contingent fee
Determine What the Dispute plaintiff’s litigation, in which the attorney’s fee is a
Step 2 Is About percentage of the client’s winnings, and the ex-
penses will be borne by the attorney—perhaps for
years—until the case is over. Then the decision to
Once you have determined that the case would not
accept or reject a case will depend greatly on the
create a conflict of interest with other clients of the
chances of winning and the amount available to be
firm, it is time to start digging out the facts of the
won. Even with hourly rate work, it is poor busi-
dispute. We recommend that you begin by letting
ness to accept cases that are likely to cost the
your client tell her story, while you listen carefully,
client more than the desired result is worth. There-
without interrupting, and take accurate notes. In
fore, in deciding whether or not to take a case, one
part, this is simply good public relations: Clients
of the things an attorney ordinarily does is to make
are usually anxious to talk, to be listened to, and to
some judgment about the strength of the case and
be taken seriously. More importantly, you are likely
the amount of money likely to be won or lost. To do
to find out more if you listen to the whole story be-
so, some preliminary fact gathering is required.
fore launching into your checklist of questions.
Litigators think of the claims in a lawsuit as be-
One reason why you need the facts of the dis-
ing composed of two main parts: (1) liability,
pute is so that you can give your supervising attor-
whether plaintiff should win; and (2) damages, the
ney enough information that he can decide whether
amount plaintiff hopes to win. Leaving aside com-
to accept the case. Several factors will play a part in
plications such as comparative negligence statutes
the decision: Does the case fit within the firm’s area
and jurors who do not follow instructions, these are
of practice? Does the firm have the necessary re-
entirely separate issues. Whether Joe Jogger wins
sources to devote to the case at this time? Is it in the
client’s best interests to pursue the case, or are the or loses his suit against Steve’s Trucking does not
chances of success too small to merit the effort and depend on how badly Joe was injured—it depends
expense that would be required (see Step 3)? on the evidence of what Steve did. For example,
Eventually, if your firm accepts the case, it will how many credible witnesses can Joe produce who
be necessary to write a complaint or respond to will testify that Steve’s truck ran a red light? Joe
one. (You will practice doing both in Workshops 5 may be merely scratched up, or every bone in his
and 8). One of the most time-consuming tasks in body may be broken—it does not matter. Joe’s in-
drafting a complaint or answer is looking up all of juries have (in theory) nothing to do with the issue
the factual details that have to be included—names, of whether Joe wins.
dates, places. Your complete and accurate notes of Conversely, the amount Joe will win does not
your client’s description of the facts will save you a depend on how strong his case is—it depends only
great deal of effort, not to mention embarrassing on the dollar value of Joe’s provable injuries and
phone calls to the client to obtain details that you losses. Thus (again, in theory) Joe’s evidence that
were told but have forgotten. Steve ran the red light may be barely enough to
convince the jury, or it may consist of a busload of
priests who all saw the red light—either way, the
Determine What Damages amount that Joe wins should be the same.
Step 3 Are Involved To estimate the value of a claim (see sidebar),
you need to be able to make an educated guess
Another important issue is whether the case makes about both (1) plaintiff’s chances of winning and
financial sense, both to the client and to the attor- (2) the amount plaintiff might win. To estimate the
ney. In almost all civil litigation, the plaintiff’s goal is amount plaintiff might win, we need to gather in-
to win money, and the defendant’s goal is to avoid formation about the extent of plaintiff’s injuries
paying money. Thus, for the client, the overriding and losses.
question should be “Does the value of the expected We begin by trying to think of all of the ways in
outcome, taking into account the chances of losing, which plaintiff may have been damaged. For example,
exceed the expected cost of litigating?” in an injury case, we want to know such things as
skill and judgment to be sure that no items of dam-

SIDEBAR ages are overlooked.
At the initial interview stage, of course, we will
The Value of a Claim not be able to obtain a complete breakdown of
plaintiff’s damages. In fact, plaintiff’s damages may
The usual rule of thumb for assessing the value
not all have happened yet—plaintiff may still be un-
of a claim works like this: First, estimate the proba-
dergoing medical treatment, for example. There-
ble verdict range, that is, the maximum and mini-
fore, our goals at this early stage are twofold: first,
mum amounts that a jury would likely award if the
to get enough facts to allow us to at least make an
decision is in favor of plaintiff. Then, average the
estimate of the value of the claim; and second, to
two. Next, estimate what percentage of the time
get as much information as we can that will help us
you would expect plaintiff to win, based on every-
pull together the details later (i.e., names and ad-
thing you know about the strength of both parties’
dresses of doctors, hospitals, employers, etc.). A
cases. That is, if the case were tried a hundred times
good checklist is invaluable here.
before a hundred different juries, how many of those
When we have estimated the value of the claim,
hundred times would you expect plaintiff to win? Fi-
do we then have enough information to allow us to
nally, multiply the estimated average verdict by the
decide whether the case is worth pursuing? Not
percentage probability of plaintiff winning; the re-
quite; remember, not all judgments can be col-
sult is an estimate of the value of plaintiff’s claim.
lected. From the plaintiff’s standpoint, it is usually
An example may help make the concept clearer. pointless to sue unless either (1) there is insurance
Suppose Sam Sideswipe is driving down Main Street or (2) defendant has enough nonexempt assets that
and decides to change lanes. Sam does not notice a judgment could be executed. Does collectibility
Kathy Klutz driving obliviously along in his blind really become a significant issue in deciding
spot. Kathy might have been able to avoid a colli- whether to accept a case? Yes, more often than you
sion had she reacted quickly, but she was busy might imagine. As a practical matter, judgments
changing the CD in her CD player, so she did not no- against ordinary (i.e., not wealthy) individuals are
tice Sam changing lanes until it was too late. Kathy essentially worthless unless there is insurance from
sues Sam for the damage to her car, her medical which the judgment can be collected. (For more de-
bills, and her lost time from work. Approximately tail on why this is so, see Chapter 8). Therefore, a fi-
how much is Kathy’s claim worth? nal essential task in evaluating a claim is to get in-
There are two variables: (1) How much is Kathy formation about any insurance coverage that may
likely to win, if she wins? (2) How likely is she to apply and about the extent of defendant’s assets.
win? Neither question can be answered with any Obviously, your client is unlikely to have all of
scientific exactitude, and both require judgments of the damages information you need at the time of
the goodness of Kathy’s case, based on experience. the first interview. Follow-up will be required (see
You evaluate Kathy’s damages, and estimate that if Step 5 later).
she wins, the award should be between $8,000 and
$12,000—an average of $10,000. Because a jury
Determine When
might find that the accident was mostly Kathy’s Step 4 the Dispute Arose
fault, this is not a “slam dunk” (few cases are); you
estimate that if the case were tried ten times, Kathy
would win six out of the ten, or 60 percent. The ap- Time limits apply to the filing of lawsuits. Usually
proximate value of the claim is $10,000 times 60 (but not always), these arise from statutes of limi-
percent, which is equal to $6,000. tations. A statute of limitations is a statute that re-
quires suit to be filed on a particular type of claim
within a specified length of time after the claim
arises. For example, the statute of limitations for
(1) how much plaintiff’s medical bills add up to; negligence claims may provide that all claims for
(2) how much income plaintiff lost by missing work; negligence must be sued on within two years after
(3) whether future medical treatment will be needed, the claim arises.
and how much it will cost; and (4) whether any of When does a claim arise? It depends on the sit-
plaintiff’s injuries will be permanent, and, if so, what uation, and, as with most issues in litigation, there
sort of value a jury might place on a permanent injury may be a dispute about what date the claim arose
of that kind. Each case is different, and no checklist on. This elementary text will not make you an expert
can possibly anticipate every possible kind of dam- on the intricacies of statutes of limitations (but see
ages. It is up to the lawyer (or paralegal) to apply her the sidebar for some general concepts). Fortunately,
SIDEBAR
Fun with Statutes of Limitations
Statutes of limitations are statutes that place a clock is typically stopped whenever plaintiff is under a
time limit on the right to file a lawsuit. Different causes disability. Disability is another of those common
of action may have different limitations periods. For words that has a special meaning in the law: In the
example, many states require suit to be filed on a context of statutes of limitations, it means some situa-
cause of action for negligence within two years after tion, recognized by the statute, that tends to prevent
the cause of action accrues. On a cause of action for, plaintiff from being able to sue. Commonly recognized
say, breach of contract, the limitations period is often disabilities are when plaintiff is insane, or under the
longer—perhaps as much as six years. When a cause age of majority, or in prison.
of action can no longer be sued on because the limi- Another common exception is when the cause of
tations period has run out, we say that the cause of ac- action is concealed in some way so that plaintiff does
tion is time-barred. not find out about it until long after it has already ac-
When does a cause of action accrue? Courts often crued. (How could that happen? Suppose defendant
say that a cause of action accrues on the date by embezzles funds from plaintiff, and plaintiff does not
which all of the elements of the cause of action have discover the embezzlement until there is an audit.) In
happened. Often, the date will be obvious—in an au- many states, some version of the discovery rule ap-
tomobile negligence case, for example, all four ele- plies; that is, the clock may not start running until
ments of the cause of action for negligence (duty, plaintiff has a reasonable chance to discover the facts
breach of duty, causation, and damages) are estab- supporting the cause of action.
lished at the moment of impact. One further complication: A lawsuit may involve
You are probably wondering how something as several different causes of action, and different limita-
simple as a time limit can be made complicated. One tions periods may apply to each one. Thus it is possi-
reason is that statute of limitations law is riddled with ble in a given lawsuit for some of the causes of action
exceptions. For example, the statutes of limitations to be time-barred and others not.
in most cases, there will be some date that we can Which dates are the relevant ones? It depends
easily identify as the earliest possible date on which on the circumstances. As a paralegal, it will not be
the claim could have arisen, and we will be safe if we your job to make judgment calls on statute of limi-
get the lawsuit filed within the prescribed period of tations questions; your job, if you are assigned to in-
time after that date. In an auto accident case, for ex- terview prospective clients, is to collect the facts.
ample, we can safely assume that the date of the ac- Therefore, try to obtain dates for every occurrence
cident is the earliest date on which the claim could that your client tells you about.
have arisen; we will be safe if we count from that What are the pertinent dates? For statute of
date in deciding when the statute of limitations will limitations purposes, the important date is (for
run. There may be arguments we could make in fa- example) the date the accident actually hap-
vor of some later date (and we may make them if we pened, not the date your client mistakenly re-
are forced to, such as in cases where the client membered. Do not take your client’s word for the
waited too long before seeing a lawyer) but usually date—check the documentation (for example, the
our wisest course is to err on the side of caution. police accident report).
Whenever you talk to a prospective client about What are the relevant statutes of limitation in
a possible lawsuit for the first time, it is extremely your state?
important that you nail down the relevant dates.
You will need them in drafting the complaint or an-
swer, of course, but, more importantly, you need
them in order to be sure that you can get the suit
Your Local Notes
filed before any applicable statute of limitations
runs. To fail to do this is to invite a malpractice suit _________________________________________________
when it turns out that the client contacted you two _________________________________________________
days before the statute expired and you assumed
you had plenty of time.
SIDEBAR
Other Time Issues to Watch For
Statutes of limitations are the most common agency. Suit can be filed only after the gov-
source of time limits on lawsuits, but they are not the ernment agency has had a chance to try to
only ones. Here are a few others (but be warned that resolve the problem. Often, the government
this is not a complete list!): agency has strict time limits; as a practical
1. Laches. Traditionally, statutes of limitations matter, if these are not complied with, suit
do not apply to equity causes of action (typi- can never be filed, since the prerequisite—
cally, those in which the relief sought is an in- agency action—will never occur. The lesson
junction or court order instead of money here is that specialty claims involving dis-
damages). Instead, the court may use the putes that fall within the purview of govern-
doctrine of laches to throw out the suit if the ment agencies are not for amateurs.
court finds that plaintiff has delayed too long 3. Arbitration. Certain types of contracts pro-
in pursuing his rights. How long a delay is too vide that any dispute under the contract must
long? The answer is up to each court. be arbitrated, rather than taken to court.
2. Administrative remedies. The law requires Usually, such contracts specify time limits for
some types of disputes (such as labor claims) commencing arbitration.
to be taken first to a designated government
Determine Where to Get To the extent that your client has brought per-
Step 5 More Information tinent documents, make copies of them now. To the
extent that your client has pertinent documents but
One of the most important purposes of an initial has not brought them, make definite arrangements
interview is to obtain leads to all of the informa- now to obtain copies. Experience teaches that the
tion that your client does not have. As you com- best time to get a copy of a document is at the first
pleted Steps 1 through 4, you undoubtedly noticed opportunity.
gaps in your information; this is the time to think Sooner or later, it will be necessary to prepare a
about how you are going to fill them, and what incomplete list of the names, addresses, and tele-
formation you can get from your client that will phone numbers of every potential witness in the
help you do so. case—that is, every person having any knowledge
Inevitably, you will eventually need to obtain or information about any of the facts in dispute.
every document having any bearing on the case. In- This includes experts such as treating physicians
evitably, your client does not have all of them. Find and police investigating officers. Start the list now,
out what documents are likely to exist and who has fill in as much as your client knows, and start mak-
them. Get names, addresses, telephone numbers, ing plans to obtain the rest. We recommend that
and specific descriptions of any documents known you keep an ongoing witness list in the file, updat-
to exist—you will need them when you send out sub- ing it whenever you obtain new information. Such a
poenas. Do not neglect the damages portion of your list will be useful when you respond to your oppo-
case—you will need bills, statements, estimates, ap- nent’s discovery requests, and it will also help you
praisals, whatever it takes to establish the amount plan your own evidence-gathering work.
of plaintiff’s losses. In personal injury cases, you will
need copies of medical records; to get them, you Get Needed Administrative
need to know where and by whom plaintiff has been Step 6 Information
treated and you need to complete a medical release
authorization (Figure W3–2). In accident cases, you Before concluding the interview, be sure you have
will need police investigation reports; to get them, obtained all of the mundane data you will need in
you need the date, time, location of the accident, processing the case. Use your checklist. Be sure
and the identities of the drivers. In business dis- you know where your client wants mail sent and
putes, you need copies of any contracts involved in when and where you can contact your client by
the suit, as well as copies of all of the written corre- phone. Get Social Security numbers of everyone in-
spondence between the parties. volved if you can.
Figure W3–2 Sample Medical Release Authorization
MEDICAL AUTHORIZATION RELEASE
TO WHOM IT MAY CONCERN:

Please be advised that my attorney, Allen Porter, is hereby authorized to request, and to receive, all
medical information which you may have in your possession concerning me.
You are hereby authorized to allow my attorney complete access to any and all of my medical
records, including x-rays, results of other procedures and all billing statements, which are or may later
be in your possession or in any way reflect anything concerning me. I hereby waive, in favor of my
attorney, any and all confidential relationships.
I hereby authorize the use of a copy of this release as though it were an original.
______________________________________________
Client
Social Security No. _____________________________
Date: __________________________________, 2000
If the firm is not accepting the case, the letter

Step 7 Inform the Client must say so, in the clearest possible terms. To do
otherwise is to invite a malpractice suit or a bar In
As a paralegal, you should avoid making statements modern litigation practices, it is (or should be) an
to clients that could be construed as giving legal ad- ironclad rule that every contact with a prospective
vice. Undoubtedly, your client will have questions; client must be followed up with a letter document-
with experience and guidance from your supervising what, if anything, the attorney agreed to do.
ing attorney, you will learn which ones you can If the firm is not accepting the case, the letter
safely answer and which you should refer to an at- must say so, in the clearest possible terms. To do
torney. Typically, questions about what happens otherwise is to invite a malpractice suit or a bar com-
next are fairly safe, if you know the answer. Ques- plaint, when the client later claims that she believed
tions about “How much am I going to win?” or you were accepting the case. Many attorneys also
“What are my chances of winning?” are hazardous consider it wise to include in the letter a recital of the
to the careers of paralegals. dates of events as related by the client, and a sug-
Most attorneys have some standard instruc- gestion to see another lawyer promptly or before a
tions to be given to clients at the beginning of a specified date. Does a lawyer who rejects a case have
case. These instructions vary depending on the a duty to advise the client to see another lawyer and
type of case. For example, it is usually wise to ask have suit filed before the statute of limitations runs?
clients to save any receipts for expenses related Trust us, this is not an issue that you want to litigate!
totheir claims and to keep a diary of any important If the firm does accept the case, a written engage-
events. Some attorneys routinely ask clients to ment letter or fee agreement should be prepared and
write a narrative describing the events involved in signed by the lawyer and the client. The ethics rules
the suit, so as to get the facts recorded while they of some jurisdictions require this, particularly in con-
are fresh in the client’s mind. If you are assigned tingent fee cases. Even where rules do not require one,
client interviewing duties, your supervising attor- a written agreement is cheap insurance against a fu-
ney will tell you what instructions should be given. ture misunderstanding. As a paralegal, you may be as-
signed to prepare a fee agreement for a particular
Properly Document case, usually based on a form agreement from the
Step 8 the Outcome firm’s form file. An attorney must sign the agreement.
In modern litigation practices, it is (or should be) an INVESTIGATION STEPS

ironclad rule that every contact with a prospective
client must be followed up with a letter document- Evidence in a lawsuit is like pieces of a jigsaw puz-
ing what, if anything, the attorney agreed to do. zle which must be put together, piece by piece, into
a complete picture that can be presented to the elements of the causes of action that we will be al-
judge or jury. The client has provided some of the leging. Rule 11 requires us to have a reasonable ba-
pieces; the attorney, assisted by the paralegal, must sis for whatever legal theories we assert. Perhaps a
find and assemble the rest. more compelling motivation is that if we allege a
cause of action incorrectly, our opponent will try to
The Requirements of Rule 11—How much of use our mistake to get the claim dismissed.In Work-
this work must be done before suit is filed and how shop 1, we outlined a basic approach for research-
much can be left for later? The bare minimum is the ing the causes of action and defenses in a case. To
level of preparation required by FRCP, Rule 11(a), the extent possible, this task should be completed
which states: before suit is filed.
The signature of an attorney . . . constitutes a
certificate by the signer that the signer has read the
pleading . . . [and] that to the best of the signer’s Step 10 Assemble Available Documents
knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument In most lawsuits, the evidence ultimately presented
for the extension, modification, or reversal of existing to the court will consist of two things: (1) testimony
law. . . . of witnesses and (2) documents. In most cases, you
will assemble many more documents than will ac-
Rule 11 tells us that, before filing a complaint or
tually be presented to the court. The best strategy
answer, we must make enough of a “reasonable
is to try to assemble the entire universe of all docu-
inquiry” to assure ourselves that whatever we
ments that may have anything to do with your case;
say is “well grounded in fact.” Furthermore, we
then you can pick and choose the ones that best
must have an understanding of the causes of ac-
support your client’s position.
tion that we intend to raise, sufficient that we can
The document-gathering task will continue
certify to the court that our legal theories are
throughout the suit, and, as a paralegal, you will
“warranted.”
likely be heavily involved in it. Document gathering
Steps 9 through 11 involve tasks that will be on-
takes time, and the earlier you begin, the better.
going throughout the entire lawsuit. How far
Before suit is filed, you will not be able to use
should we take them before filing suit? Once we
the tools of discovery (such as subpoenas) to pry
have done enough to satisfy Rule 11, should we go
documents from uncooperative sources. You can,
ahead and file a complaint? Or should we aim for a
however, begin the process of ordering any docu-
higher target?
ments that your client has a right to obtain (i.e., his
Ideally, it would be nice to have our entire case
own medical records) and any records that are
prepared, with all our strategies thought out in ad-
open to the public (i.e., police reports, court
vance, because once suit is filed, we will have a
records, recorded documents).
judge scrutinizing everything we do, and an oppo-
The procedure for obtaining documents varies
nent taking shots at our case while we are preparing
with the source. Often, you can request records by
it. Can we achieve this ideal? Almost never. A num-
letter; to do so, you need to know to whom to write,
ber of forces are at work that will compel us to file
whether there is a charge for copies, and what in-
suit without too much delay. If we wait, we run the
formation you must provide so that the documents
risk that potential defendants will die or disappear;
you want can be located. You may need to spend
statutes of limitations or other deadlines may pass;
some time on the telephone to find out these things.
someone else may file suit first and preempt our
Do not hesitate to make a phone call and ask. Of-
choice of forum; momentum and credibility will be
fices that keep records often seem to delight in in-
lost. Moreover, informal investigation can go only
venting new hoops for you to jump through in ob-
so far; for some of our evidence gathering, we will
taining copies, and no one can anticipate all of
need the subpoena powers of the court. Therefore,
them. When you send out written requests for doc-
in most cases, the preparation process is not far
uments, be sure to make a note on your calendar so
along when suit is filed.
that you will remember to follow up if you do not re-
ceive a response within a reasonable time.
Research Causes of Action How do you know what documents to look for?
Step 9 and Defenses Document gathering is a skill that comes with expe-
rience. In Workshop 9 (Document Discovery), we
As we will see in Workshop 5, we cannot draft a com- will develop a systematic way of attacking the prob-
plaint or answer without knowing at least the basic lem. For now, in the pre-suit stage, concentrate on
SIDEBAR
Some Ethical Traps to Watch For
One type of involved witness requires special men- edge. This is another minefield into which no parale-
tion: employees of an opposing party. If we are suing a gal should set foot without advance permission. If you
company, and we know the company has a lawyer, can are not a participant in a conversation, it is almost
we contact employees of the company and ask them certainly illegal for you to record it. Even if you are
questions about the matters in dispute? This common recording your own telephone conversation with
situation raises potentially complex questions of ethics someone else (a witness, for example) you may be
and of attorney–client privilege, which we will consider committing a crime if the person you are recording
in detail in Workshop 19 (Ethics in Litigation). For now, does not know you are doing it; state laws vary on this
the lesson you should take away is this: Do not contact issue. Suppose you secretly record a face-to-face inter-
an opposing party, or employees of an opposing party, view with a witness. In most states, this would not be
without checking with your supervising attorney first. a crime, but issues of legal ethics can arise, and the
Another issue that has great potential to get op- witness is unlikely to be pleased if she finds out. Bot-
ponents into a high state of excitement is that of tape tom line: Get your supervising attorney’s approval be-
recording statements without the witness’s knowl- fore you get out your tape recorder.
SIDEBAR
Witness Statements
A witness statement is a record of what a witness witness statement as evidence of the witness’s prior in-
has said about the facts in dispute. In civil litigation, a consistent statement.
statement usually means an informal interview at Your own notes are not very useful for that pur-
which only the witness and the interviewer are present. pose. You do not want to have to testify as to what the
Ideally, we want two things from a statement: witness said, and even if you did so it would be a mat-
(1) We would like the content—what the witness has ter of your word against that of the witness.
said—to be helpful to our case; and (2) we want to Tape recording the interview is a better way if the
preserve that content in a way that allows us to use it witness will allow it (be sure to get the witness’s consent
later in court, if necessary. Getting the right content is on tape!). One drawback is that tape recorders tend to
a matter of interviewing skills, understanding of the is- make people careful, so the witness may not speak freely.
sues, and preparation, and it depends on the facts of Another negative is the fact that a tape recording pre-
each case. We will have more to say about the art of serves everything, the bad as well as the good, so you
“knowing what to ask” in Workshop 13 on Working may be creating ammunition to be used against you.
with Witnesses.
Still another option is to take a written statement.
One way of preserving a witness’s testimony is to To do this, you first interview the witness, taking careful
take a deposition. Why not do that? There may be sev- notes. Then, on a fresh sheet of paper, write or type out
eral reasons. A deposition is a more formal (and ex- the specific testimony that you wish to preserve; this can
pensive) proceeding and the opposing lawyer would be in narrative form, or in a series of short numbered
have a right to be present (see Rule 30, FRCP). Another paragraphs. Ideally, if you are a notary public or have
factor that you may find significant is that in a depo- one available, write the statement in the form of a no-
sition, a lawyer must conduct the questioning; parale- tarized affidavit. If you are not a notary, be sure to in-
gals can take witness statements. clude a sentence saying that the entire statement is a
There are many ways to accomplish the goal of true account to the best of the witness’s knowledge and
preserving what the witness has said, including simply belief. After you interview the witness, it is usually best
taking notes. Where a witness statement becomes re- to write out the statement, go over it with the witness
ally useful, however, is when a witness tries to change to correct any inaccuracies, and get it signed (and, ide-
his story later, perhaps after some coaching by your ally, notarized) then and there, before the witness has a
opponent. Then you would like to be able to use the chance to think up excuses for refusing to sign.
assembling the documents that you know must ex- plaintiff and settle the case. Therefore, a pre-suit set-
ist (based on your client interview or based on your tlement proposal is usually worth considering.
experience in similar cases). The time-honored way of getting negotiations
going is for plaintiff’s attorney to send a demand let-
ter to defendant (or defendant’s insurance company
Step 11 Interview Main Witnesses or lawyer). In certain areas of practice—accident lit-
igation, for example—many plaintiff’s lawyers send
Once suit is filed, your freedom to contact poten- pre-suit demand letters routinely in every case. Be-
tially unfriendly witnesses will be much reduced. cause the preparation of settlement demands is a
Obviously, we would not want opposing lawyers job often assigned to paralegals, we include it as a
talking to our clients behind our back, and the part of this workshop.
rules of ethics restrict us from contacting a party Whether to make a pre-suit settlement demand
or witness whom we know is represented by an- in a given case is a matter of strategy. Some plain-
other lawyer. As a practical matter, once we sue tiff’s lawyers, even in garden-variety accident
someone, their first act will be to hire a lawyer; cases, make it a practice always to file suit first, be-
from then on, anything we get from them will be lieving that this will show determination and cause
carefully sanitized. their demands to be taken seriously. There are also
What about nonparty witnesses—people whom some opponents, usually large corporations or in-
we are not suing, but who have information about surance companies, that deliberately cultivate a
the dispute? In practice, we will find that there are reputation of being tough litigants and of fighting
two kinds: (1) the impartial witness, someone who is every claim to the bitter end. In disputes involving
not a part of the dispute and does not side with ei- them, settlement overtures may be futile, a waste
ther party; and (2) the involved witness—perhaps a of time and money.
friend or business associate of one of the parties— Steps 12 through 16 describe the process of
someone who can be expected to take sides. preparing a pre-suit settlement demand letter.
Whether we represent the plaintiff or the defendant,
it is to our advantage to interview and take state- Determine to Whom Demand
ments from as many of the impartial witnesses as we Step 12 Should Be Directed
can find, as early as possible.
It can matter a great deal which side gets to
The purpose of a settlement demand letter is to get
these witnesses first. Ideally, the first side to talk to
negotiations going. To do that, we need to be in con-
a witness will obtain (with the witness’s permis-
tact with the person who has the authority to make
sion) a tape-recorded or signed statement, locking
a decision and pay money.
the witness into one version of the facts for all time.
As a practical matter, the target in most lawsuits
A single answer to a single question can, at times,
is a “deep pocket” of some kind—an insurance com-
make or break a lawsuit, and a clever questioner
pany, a large corporation, or a government agency.
can find many ways to cast questions so that a sim-
This fact simply reflects the reality that the vast ma-
ple yes or no answer will carry vast implications
jority of individuals are judgment proof, or close to
that the witness may not have intended.
it; they do not have enough nonexempt assets to sat-
It goes without saying that we will contact all of
isfy a typical judgment. Therefore, in suits against in-
the involved witnesses who sympathize with our
dividuals (i.e., accident cases), plaintiff’s first task is
side, find out what they have to say, and caution
to discover who will be paying the judgment if plain-
them of the dangers of speaking to our opponent
tiff wins (usually, an insurance company).
without the benefit of our presence!
If we know that our opponent already has a
lawyer, the settlement demand letter must be ad-
SETTLEMENT DEMAND STEPS dressed to the lawyer (remember, we cannot ethi-
cally contact someone whom we know is repre-
Legal disputes can be settled—resolved by sented, except through their lawyer). Otherwise,
agreement—at any stage. The winner’s prize in a we will most likely send the demand to the insur-
civil lawsuit is money damages, so most settle- ance company covering the person we will be suing.
ments consist of the defendant paying an agreed Sometimes, we will already have insurance in-
amount of money to the plaintiff in exchange for formation, perhaps from the police investigator’s
plaintiff giving up the suit. report. If not, a common way to proceed is to send
It costs money to file a lawsuit—at times, quite a short letter to the person we are about to sue,
a lot of it—money which might be better used to pay along the lines of:
Dear Ms. Sideswipe: that, if accepted, becomes an enforceable contract—

so be specific and precise. You do not want to trade
This firm represents Irene Innocent in
connection with the automobile accident of the dispute you already have for another dispute
August 13, 2000. Would you please have your over the interpretation of the settlement!
insurance company contact us.
SIDEBAR
Step 13 Describe Facts of Dispute
Releases
The settlement demand letter should begin with an A release is an agreement whereby plaintiff
explanation of what the dispute is about. Be accu- relinquishes her claims against defendant, agree-
rate in your facts, and write clearly and profession- ing, in effect, not to sue on those claims. A release
ally! First impressions are important, and your op- should always be reduced to writing and signed by
ponent will be trying to decide how seriously to the person whose claims are being released.
take your claims. Include pertinent names, dates,
In complicated settlements, releases are cus-
times, and locations.
tom written (with generous borrowing from the
forms file, of course), and often done in the form of
Estimate Probability a contract signed by both sides. The drafting of
Step 14 of Prevailing such agreements is not a job for paralegals or even
for inexperienced attorneys.
Next, give an analysis of the liability issue. Your In routine insurance cases, the release is usu-
purpose here is to convince your opponent that ally a printed form provided by the insurance com-
your chances of winning the suit, if one is filed, are pany that is paying the settlement. Once the
very high. This is your chance to argue the merits of amount of the settlement has been agreed on, the
your client’s case. Emphasize the facts that are in insurance company sends a release, and a check or
your favor; if appropriate, discuss how the facts fit draft for the agreed sum of money, made out to the
into your legal analysis of the case. Remember, all attorney and the plaintiff jointly. This procedure is
litigation is advocacy—your goal is to persuade. called a conditional delivery. The check is not to
be deposited until the release has been signed and
placed in the return mail to the insurance company.
Step 15 Calculate Damages
Usually, the attorney has the client sign the release
and endorse the check at the same time; then, after
Your opponent will use your settlement demand let- the release has been sent back to the insurance
ter to try to decide how much the claim is worth. (See company, the attorney deposits the check in the
Step 3 earlier and the sidebar on the value of a claim.) law firm’s trust account, waits for the check to
Information about plaintiff’s damages is therefore clear, and then writes a check to the client after de-
crucial. Your demand letter should lay out the dam- ducting the attorney’s fees and expenses.
ages elements of your claim in as much detail as pos- Often, paralegals are given responsibility for
sible. No defendant is going to pay out large sums of all or part of this process. You should be aware of a
money without verifying plaintiff’s damages, so it is potential hazard: It is possible for the boilerplate in
best to enclose with your letter copies of whatever the insurance company release form to contain
documents you will be relying on to prove damages. provisions that the client should not agree to. As
Bills, receipts, physicians’ reports, repair estimates, long as the language of the release is limited to the
employer’s verification of time lost from work—the relinquishment of claims, it is probably acceptable.
particulars depend on the case, but in general, the But some release forms also include agreements to
greater the amount of loss that you can document, indemnify or hold harmless. Both terms mean to
the larger will be the settlement value of the case. pay someone else’s losses—in this case, the losses
that the insurance company may incur if it turns
out that someone else has a right to sue on the
Step 16 Make a Specific Demand claim being settled. Although the risk is usually re-
mote, releases that contain indemnification or hold
The demand letter concludes by demanding a spe- harmless provisions should be reviewed by an at-
cific sum of money in return for a release of plaintiff’s torney.
claims. You are making an offer—a communication
It is best to set a time limit, by specifying a answering until more investigation has been done.
deadline after which the offer to settle will termi- (As a paralegal, you should never, ever, offer opin-
nate. Otherwise, your opponent will be tempted to ions to clients about the possible value of a claim
play a delaying game, letting you “twist in the wind” unless you are looking for a one-way ticket to some
waiting for the phone to ring—a weak negotiating other line of work.)
position. Porter will undoubtedly have a standard form
contingent fee agreement for use in injury cases. In
modern law offices, a secretary or word-processing
Case Workup: clerk can likely fill in any blanks and print the agree-
ment quickly, so that Porter can go over the agree-
Learning by Example ment with Shannon, have her sign it, and give her a
copy before she leaves.
Now we will consider how these principles might be
applied in Shannon’s hypothetical case against Ban-
bury Park Hotel. INVESTIGATION STEPS
A good first step in investigating a claim like Shan-
non’s is to take advantage of the investigation al-
CLIENT INTERVIEWING STEPS
ready done by the police. Telephoning the detec-
In our hypo, we left to the imagination most of the tive, as Porter did, would be worth a try in an
details of Allen Porter’s initial interview with Shan- unusual case like this one; in a routine accident
non. We now know that his first questions must case, it would be more common to obtain the writ-
have been directed at identifying the other parties ten police report before attempting to speak to the
involved in the dispute. Once satisfied that there investigating officer.
was no potential conflict of interest with other Chuck’s trip to Las Vegas to scout out the scene
clients, Shannon would have been encouraged to raises several knotty ethical issues, which we can
tell her story. When she finished, Porter would assume Porter discussed thoroughly with Chuck
have zeroed in with specific questions to fill any before giving his approval. Was it proper, for exam-
gaps: When, exactly, did this happen? What was the ple, for Chuck to conduct an investigation on
date? What was the name and telephone number of premises owned by an adverse party without the
the police investigator? Did she give Shannon a knowledge of Park Hotels or its attorneys? We will
card? Porter would take extensive notes, taking revisit this and other issues in Workshop 19, Ethics
down any names and addresses that Shannon can in Litigation.
provide, and any ideas about where to obtain addi- Our narrative did not dwell on all of the inves-
tional information. tigative work which, in a real lawsuit, would be go-
Estimating the settlement value of a claim of ing on behind the scenes. Immediately after
this kind is difficult, mainly because it is difficult to Porter accepted the case, letters would be sent re-
place a dollar value on how traumatic Shannon’s ex- questing any and all documents that might bear
perience was. Nevertheless, Porter would want on the claims. Chuck would likely be directed to
some idea of the severity of Shannon’s damages, so call the Las Vegas Police Department to find out
as to be able to decide whether the potential claim what reports are available and how to obtain
is large enough to justify the cost of litigating it. them; he would then send out the necessary re-
How much are the doctor bills so far? What addi- quest and follow up to be sure the reports arrived.
tional treatment did the doctor tell Shannon she The police reports would reveal the names and
would need? What is the likely outcome of her job addresses of any witnesses interviewed by the po-
situation? lice; part of Chuck’s follow-up might consist of
Before Shannon leaves, she will undoubtedly contacting these witnesses and taking statements
want to know what Porter thinks of her claim. Every from them.
client wants to know how much money the attorney Chuck might also be asked to assemble the docu-
thinks they can win, and nearly every client already mentation for the damages aspects of the claim. He
has some amount, often unrealistically high, in would begin by requesting complete copies of med-
mind. Because Porter is the attorney in charge of ical records from each medical provider (physicians,
the case, he may decide to estimate upper and surgeons, hospitals) involved in Shannon’s treatment.
lower limits. If he does, these will be widely spread, Later, when Shannon’s condition has become stable,
deliberately calculated to err on the low side, and he would request updates of the medical records, and
accompanied by strong warnings about the unrelia- perhaps also order narrative reports from one or
bility of such estimates. More likely, he may defer more of Shannon’s physicians (see sidebar).
SIDEBAR
Narrative Reports
A high percentage of all lawsuits involve injuries In trial, we establish these intangibles mainly
of some kind. How can you place a dollar value on an through the expert testimony of physicians who have
injury? You could start by adding up the medical bills, treated or examined the injured person. (Defendant
but most people would agree that merely paying has a right to have the plaintiff examined by doctors
someone’s medical bills would not be enough to com- of defendant’s choosing.) At the pre-suit settlement
pensate them for the pain and impairment of a serious stage, however, we will not yet have any doctor testi-
injury. In practice, the way in which injuries are valued mony to present. What do we do?
is that the jurors listen to all pertinent facts, deliber- Routinely in injury cases, we order a narrative
ate, and vote on a number. report from the treating physician. Usually, this is
Because jury decisions are not arrived at in any done by sending the doctor a brief letter requesting
scientific way, there is no formula to use to compute the report. Doctors who treat injuries are familiar with
the value of an injury. The best you can do is try to narrative reports and usually do not need to be told
assemble the same facts that the jurors would be how to prepare one, although it is perfectly appropri-
asked to consider and, guided by experience, make ate to request that the doctor address particular issues
some judgment about what a typical jury would that may be of concern in a given case. It takes time to
likely award. (There are resources such as Jury Verdict dictate a report, so most doctors will bill you for the
Research that compile data about the amounts of service (typically in the range of a few hundred dol-
jury verdicts in various types of cases; consult your lars); a few even require payment in advance.
law library.) The narrative report will summarize the nature of
In addition to the actual medical costs as reflected the injuries; the treatment rendered and its cost; the
by the bills, the jury in an injury case typically consid- prognosis; and the doctor’s opinions regarding any
ers such factors as the extent to which the injury affects other important medical issues. The doctor’s narrative
plaintiff’s ability to carry out normal activities; the pain report is submitted with the settlement demand letter,
suffered; the permanency of the impairment, if any; thereby giving the opposing party a preview of the
and the possible need for future medical treatment. medical evidence that would be presented at trial.
SIDEBAR
Obtaining a Client’s Records
One of the routine tasks in most lawsuits is to ob- cies; some require an advance deposit, some send
tain records pertaining to our own client—medical records to an outside copying center with which
records, employment records, and any other records arrangements have to be made, some simply send the
that pertain to the dispute. Usually, our client has a attorney a bill when the copies are completed.
right to obtain copies of these records, so no subpoena Your supervising attorney will have a record re-
will be necessary. (Recall that a subpoena duces tecum lease form in her form file. Fill in the client’s name,
is a court order requiring a witness to appear and pro- make a dozen or so copies, and obtain the client’s sig-
duce documents.) nature on each one. In the record release form, the
Begin with a telephone call to the company, doc- client authorizes the release of records to the attorney
tor’s office, hospital—whatever organization we be- (keep in mind that these are confidential records, and
lieve is maintaining the records we want. Many of the the holder of the records could be sued for releasing
organizations from which you will be requesting them improperly). Often, release forms also include a
records are large, so you should get the name of the provision revoking any prior authorization to release
individual to whom the record request should be sent; records, and an admonition to the holder of the
otherwise, your request letter may spend weeks being records not to release copies to anyone else. This is
shuffled from one department to another. At the same done because it is possible that our client has signed
time, you need to find out how to handle copying record release forms in the past, particularly if insur-
charges. Different organizations have different poli- ance is involved.
SIDEBAR
Obtaining a Client’s Records continued
Send a letter, addressed to the individual in Do the pages that you were given refer to other pages
charge of the records you wish to obtain. In the letter, that are not there? From your knowledge of records of
request the records that you want, designating them this type, are there items that should be present that
as broadly as possible—at this stage, you want every- are not? Are all the pages legible? Mass copying jobs
thing, and you do not want a records clerk making are notorious for producing occasional unreadable
judgments about which documents are important. pages. With records that may be crucial to the case—
You should enclose a signed release form and confirm important medical records, for example—it is wise to
whatever payment arrangement is necessary. You then schedule an appointment to go and physically com-
calendar the request a reasonable distance into the fu- pare the copies with the original file, page by page.
ture, so that you will be reminded to follow up if you Only then can you be sure that the copying clerk did
do not receive a prompt response. not inadvertently skip a few pages. Lawsuits have been
Is your task completed once you receive the copies? won and lost on such details.
No, not until you verify that the copies are complete.
Shannon can also claim damages based on her Case Workup:

loss of income as a result of her injuries. To do so,
it will be necessary to assemble evidence proving Learning by Doing
how much Shannon would have earned had the in-
jury not occurred. Chuck may contact Shannon’s Your assignment for this workshop is to perform
employer to obtain copies of payroll records verify- part of the pre-suit workup for Dr. Collins’s claim
ing Shannon’s income. against Shannon.
Typically, we obtain routine documents such
as the medical records and payroll records of our EXERCISES
own client simply by sending a brief letter re- In carrying out this assignment, you should follow
questing them. Most employers and medical the step-by-step formula described in this workshop.
providers will turn over copies voluntarily, as long
as we provide a release signed by our client (see 1. Find out how to order a police investigative re-
Figure W3–2 and sidebar) and agree to pay the port from the police department of your local-
copying costs. If we are seeking records that per- ity. Find out what forms are needed, if any; what
tain to an opposing party, we will probably have fees will be charged and how they are to be
to subpoena them, which we cannot do until the paid; and where the request is to be sent.
lawsuit is filed. 2. Assume that Dr. Collins was treated for his in-
juries at a hospital in your locality (choose one).
Prepare a request letter for medical records.
SETTLEMENT DEMAND STEPS
3. Look up the statutes of limitations for your state
Figure W3–3 is a hypothetical settlement demand (in most states, they will be grouped together in
letter that Allen Porter might send on Shannon’s one section of the statute books). Find out what
behalf. (In a real-life dispute of this kind, Dr. the limitation periods are for claims for personal
Collins would likely have liability insurance, and injury/negligence; for assault and battery; for
we would therefore send the letter to the insur- breach of contract. List at least three circum-
ance carrier.) Due to space considerations, the stances, citing the applicable statute, in which
letter is somewhat abbreviated; a real demand the limitations period would be tolled (i.e., the
letter might be several pages in length and go clock stopped). (You may wish to consider mak-
into considerably more detail, particularly as to ing a photocopy of your local statutes of limita-
damages. tions for your own litigation notebook.)
Figure W3–3 Sample Settlement Demand Letter
Ms. Rene Goodall, Claims Representative

Faithful and Dependable Insurance Company
Dallas, Texas
Dear Ms. Goodall,
As you know, I represent Ms. Shannon Martin, who was seriously injured when your insured, Dr.
Arthur Collins, entered her hotel room without permission and assaulted her, during the early morning
hours of February 6, 1996. The pertinent facts are summarized in the Las Vegas Police Department’s
investigative report, a copy of which I have previously furnished to you.
It is undisputed that your insured, using a key which he obtained by means which remain unclear,
entered Ms. Martin’s hotel room well after midnight while she was sleeping, and undressed himself at
the foot of her bed. Ms. Martin, acting out of reasonable fear for her own safety, attempted to defend
herself using a revolver which she had legally purchased; she received multiple injuries, including a
broken finger, when your insured then threw himself bodily on top of her as she lay in her bed.
In my judgment, Ms. Martin has a very high probability of prevailing on the liability issue.
Whatever was the source of the key used by your insured, it is undisputed that Ms. Martin did not give
it to him; in fact, he acknowledged to the police that he had never seen Ms. Martin prior to the assault.
Dr. Collins’s claim of self-defense is legally untenable, and in any case, I believe that a jury will find it
obvious that Dr. Collins, not Ms. Martin, was the aggressor here.
Ms. Martin’s damages are thoroughly documented in the separate summary enclosed, with backup
documentation attached. Briefly, her medical and hospital bills to date total $18,394. She has already
been absent from her work for two full months, and is not expected to be released by her physicians
for return to full-time employment for another six months; based on her annual income, her loss of
earnings is estimated at $62,000. Finally, there is the most important element of damages in a claim of
this nature, involving as it does a physical assault of the most frightening kind that a woman can
experience: general damages for pain and suffering and for the traumatic experience of the assault
itself. Taking into account all of these elements, I believe that a verdict in the range of $500,000 to
$700,000 is probable.
To avoid litigating this claim, Ms. Martin has authorized me to offer your insured a full release of all
liability (appropriately structured so as not to impair Ms. Martin’s claims against others, including the
hotel) in return for the sum of $450,000. This offer will terminate if not accepted in writing within
fifteen days from the date of this letter, whereupon suit will be filed immediately.
Sincerely,
Allen Porter
4. At your law library, find out what research tools not concerned about Dr. Collins’s chances of
are available for accessing jury verdict statis- winning; we are only concerned with what the
tics. Browse through them and find out how amount of the verdict would likely be if he did
they are organized and what kinds of informa- win.) You may make reasonable assumptions
tion can be obtained from them. Using the avail- about any other necessary facts.
able tools, prepare a one-page memorandum 5. Assume that you are employed as a paralegal by
giving your analysis of the probable verdict Roger Yarborough, attorney for Dr. Collins. He
range for Dr. Collins’s claim against Shannon. assigns you to draft a settlement demand letter
Assume that Dr. Collins’s medical and hospital on Dr. Collins’s behalf, raising Dr. Collins’s
bills total $50,000, and that he lost income of claims against Shannon, and to be addressed to
$90,000 as a result of his injuries. (Recall that in Allen Porter.
estimating the probable verdict range, we are
PRACTICE POINTERS
Interviewing
Before an interview, set up the room and chairs so as to make the client
feel as comfortable as possible. Avoid furniture configurations that intimidate
or otherwise inhibit open communication (e.g., putting the client in a small-
backed chair while you sit behind a desk in a high-backed chair). Offer re-
freshments and engage in friendly small talk to minimize the client’s uneasi-
ness. Inform the client up front that you are a legal assistant, not an attorney,
and then assure her that all communications to you, as a member of the firm,
are confidential.
Remembering that this initial contact not only provides you with a first
impression of the client, but also provides the client with a first impression of
you and the firm. Be conscious of your verbal and nonverbal language. By the
same token, be aware of your reactions to the client and take notes regarding
your impressions of her story, her body language, how she responds to ques-
tions, her apparent veracity, and her potential strengths and weaknesses as a
witness. Trust your instincts; they are often accurate.
If you are conducting the interview rather than observing, allow the client
to give a free-flowing narrative at the beginning of the interview and then fol-
low up with directed questions to fill in any gaps or clarify any points of con-
fusion. Although you may want to use prepared questions to structure the in-
terview (to ensure you cover all the salient points), do not become so
dependent on your notes that you fail to hear the client. Listen carefully to
what is said and be flexible enough to allow the client to take you into areas
you might not have thought to explore. Assert enough control over the course
of the interview, however, to prevent the client from digressing or becoming
inordinately absorbed in unnecessarily detailed descriptions. Be an empathic
listener—sensitive to the emotional needs and psychological defenses of the
client without getting caught up in those same emotions and defenses.
Ask for background information as well as details about the issue to be lit-
igated. In a torts case, for example, find out about the plaintiff’s medical his-
tory, her insurance coverage, her employment status, and personal informa-
tion, such as date of birth, Social Security number, address, telephone
number, names and relationships of family members, and so on. Gather up
enough details about the incident or issue in question that you can clearly pic-
ture the events in your mind. Take note of inconsistent statements and weak-
nesses in the case; reference them in your notes as issues/facts requiring fur-
ther investigation. At the end of this interview you should have enough
information to begin the investigatory process and to be able to respond, if
asked, about whether you think the firm should take the case.
TECHNO TIP
Many states have private compa- of its members on a state-by-state basis,

nies that keep track of jury verdicts, ar- the site also has a list of more than
bitration results, and settlements. The 20,000 experts that have testified in
data compiled may be local, regional, cases reported in their members’ publi-
or statewide. In using this valuable re- cations. To obtain additional informa-
search source care should be taken to tion on the expert it is necessary to con-
use case results from your locality. A tact the reporting company and pay a
rural area’s evaluation of damages, and fee.
even liability, may differ substantially If you do not know the opposing
from an urban area. counsel, you can also have the same
Many of these resources also keep company pull up cases she has tried to
track of attorneys, judges, and expert help determine her experience and suc-
witnesses. For the expert witness you cess in the types of cases she has been
can find out which cases they testified in involved in. Having obtained specific
and whether “their” side won or not. case information you can also call the at-
Many of these companies may also be torneys who tried cases against your op-
able to provide you with a compendium posing counsel to obtain information on
of cases where the injuries were similar, opposing counsel. You can find out, for
for example, loss of an eye, visible scar- example, her predilections at deposi-
ring, torn rotor cuff, and so on. If an ex- tions, her attitude about discovery (Does
pert is needed, it is prudent to talk to she hide the ball or not?) and other use-
the attorney that used the expert in an- ful information. Many of these compa-
other case to get his opinion on the ex- nies publish annual compendiums of all
pert’s abilities and credibility. One Inter- cases they have reported. Typically these
net site to start with is the National compendiums will list all attorneys and
Association of State Jury Verdict Publish- the cases they were on, the judges hear-
ers at www.juryverdicts.com. In addi- ing the case, expert witnesses, a sum-
tion to giving you information on each mary of the case, and so on.
FORMS FILE
Include samples of the following in your forms notebook:

■ Interview checklist;
■ Settlement demand letter;
■ Letter requesting medical or employment records; and
■ Record release forms.
KEY TERMS
Conditional delivery Narrative report Release

Disability Offer Statement
Hold harmless Probable verdict range Statute of limitations
Indemnify Record release form Time-barred
Limitations period
Court Papers WORKSHOP
4
INTRODUCTION: CREATING body and plug it into the form. This is what is typi-
A COURT PAPER THAT COMPLIES cally done in a law office.
WITH FORMAT RULES When we present a court paper for filing, the
clerk of the court will examine it to ensure that the
Most of the work that goes on in the months or years paper complies with the formal requirements of
before a suit is ready for trial involves papers. Plead- the local rules. If we have not followed the rules,
ings, motions, discovery requests, discovery re- the clerk is likely to refuse the paper. The clerk
sponses, notices—all are normally in written form. does not care what you write in the body of a court
Litigators need some way to keep track of these pa- paper—the clerk is not concerned with content.
pers so that there can be no dispute about what has However, court clerks often exhibit near zero tol-
or has not happened in the lawsuit. This means of erance for deviations from correct form.1 Urban
tracking documents is called the court file. court clerks often handle millions of pages of paper
The court file is the official record of the case each year, and seemingly minor mistakes may be
kept by the clerk of the court. The clerk keeps a sep- enough to bring the clerk’s automated processing
arate file for each case, and every important event to a standstill or, worse, cause your paper to dis-
in the lawsuit must be recorded in the file. Judges appear forever into the wrong file.
are responsible for hundreds of lawsuits at a time, There is another motivation: We want our work
so they cannot possibly reconstruct the details of to convey an impression of professionalism. Like it
individual cases by relying on memory alone. Cases or not, other people, including opponents and
are transferred from one judge to another. Appellate judges, will form opinions about us and our case
courts are asked to review what was done at the trial based on the appearance that we present. A court
level. The court file is the single permanent and paper that does not comply with the formal rules, as
complete record of everything that has happened in well as local customs, sends a message that the pre-
the case, the record that all participants rely on. parer is an amateur, someone who need not be taken
From the judge’s standpoint, the court file is the as a serious threat.
case—the judge will usually refuse to consider any Figure W4–1 lists the steps we will cover for cre-
papers that are not part of the court file. ating the formal part of a court paper.
You might think of a court paper as being made
up of two things: (1) the body, that is, the actual con-
tents of the paper, where you list your allegations or Creating a Court Paper:
present your argument, and (2) the formal part—
caption, signatures, mailing certificate, etc.—which Step-by-Step Instructions
takes care of the various clerical needs. Formal, in
this context, means “pertaining to matters of form” The step-by-step instructions that follow describe
and includes such things as type of paper, margins, requirements that apply in all American courts. The
type size, and arrangement of parts. details, however, vary considerably from one place
Beginning with Workshop 5 on complaint draft- to another and from one court to another. The for-
ing, much of the remainder of this text is devoted to mal requirements of your local courts will quickly
learning how to prepare the body of various kinds of become second nature to you, although questions
court papers. But because the formal part is essen- occasionally come up that send even experienced
tially the same for all court papers, it will be easier lawyers back to the books to check the rules. When-
if we learn to construct the formal part first, and pre- ever you are called on to prepare a paper for filing in
pare a form for doing so. Then, whenever we need to some unfamiliar court, you will have to find out the
prepare a court paper, all we have to do is write the specific requirements and customs of that court.
1
We recognize that FRCP, Rule 5(e), states that “The clerk shall not refuse to accept for filing any paper presented for
that purpose solely because it is not presented in proper form as required by these rules or any local rules or prac-
tices.” Rule or no rule, the authors have had filings rejected by federal court clerks for minor format infractions, and
the clerks of some state courts (New York City comes to mind) are notorious for refusing improperly formatted filings.
274 WORKSHOP 4 Court Papers
Figure W4–1 Creating a Court Paper
Step 1—Comply with Mechanical Requirements

Step 2—Compose a Caption
Step 3—Introductory Paragraph
Step 4—Body of Document
Step 5—Date and Signature
Step 6—Certificate of Service
How do you go about doing this? First, check the As with other formal requirements, when in
rules. Which rules? All of them. Formal requirements doubt, let local custom be your guide.
can appear in local rules; in the rules of procedure
3. Margins. Again, uniformity is the goal. Court
for the particular court; in statewide or district-wide
clerks tend to be particularly fussy about the
rules of practice—sometimes partly in one source,
top margin on the first page, which many courts
partly in another. Your instructor will inform you of
require to be several inches wide to provide
which rules prescribe the formal requirements for
room for the clerk’s stamps.
the courts of your locality.
Once you have identified and read the applicable 4. Font, type size, line spacing, and length limits.
rules, we strongly recommend that you obtain a few Many courts specify a minimum type size, and
samples of court papers filed by a competent law most require court papers to be double spaced.
firm in the court with which you are concerned. For- This is done mainly to ensure readability, espe-
mal rules can be tricky, and many of the errors be- cially after copies have been made. Some courts
ginners commonly make will become obvious if you specify the font (the design of the individual let-
compare your work to a properly prepared form. Fi- ters) to be used. Even if the rules are silent, it is
nally, when in doubt, do not hesitate to ask for help wise to stick with a widely used font such as
from an expert: An experienced legal secretary will Courier—this is not a good place to show off
usually know the formal rules inside and out. your computer’s font-making versatility.
It is also becoming quite common for courts
Comply with Mechanical to place limits on the overall length of court pa-
Step 1 Requirements pers. For example, they may limit motions to no
more than fifteen pages. We mention this here
Most courts specify a number of mechanical details because, sooner or later, it will occur to you
that must be followed when preparing a court pa- that you could get more words into the same
per. We list some of the common considerations; we number of pages by using different or smaller
also include a chart at the end of the chapter (Fig- type or by “fudging” on the margins. Our advice
ure W4–3) for you to fill in the specific requirements is to resist the temptation.
and customs of your local court. Your instructor 5. Backings. Some courts require court papers to be
may provide the details for you to fill in or may as- prepared with a colored backing, which serves
sign you to obtain them as an exercise. as a visible separator between papers in the file.
1. Size, weight, and type of paper. The rules of 6. Other details not covered by the rules. There are
most courts place limits on the types of paper many other formal details which, although not
that are acceptable. The clerk’s jobs of segre- specifically covered by the rules, are the subject
gating papers into the correct files and of mi- of such long-standing custom that failure to ob-
crofilming or electronically imaging papers for serve them will be instantly noticed. These in-
archiving can be carried out more efficiently if clude such minutiae as the wording of the name
the items being processed are uniform. of the court; whether to use parentheses or
2. Whether line-numbered paper should be used. colons to make the vertical line down the middle
Traditionally, court papers were prepared on of the caption; whether various parts are in-
“pleading paper” that had line numbers dented or kept on the left margin; how many
preprinted along the left margin. Many courts spaces to indent paragraphs; and many other
no longer require it, although many law firms such items of seeming trivia. Pay attention to
continue to use it even where it is not required. these details and follow your sample forms.
WORKSHOP 4 Court Papers 275
print the entire list? At the risk of repetition, the

Your Local Notes
purpose of legal writing is to convince the judge
_________________________________________________ to rule in your favor—you do not want to waste
_________________________________________________ valuable page-one “real estate” on long boring
lists of names. By shortening the caption, you
will be left with more space at the bottom of the
first page in which you can say something eye-
catching and convincing.
Step 2 Compose a Caption The layout of the names of the parties is stan-
dard. Details such as which parts are capitalized,
All pleadings begin with a caption, which serves the whether and how much to indent the words
same function as a title page in a book. A caption has “Plaintiffs,” “Defendants,” and “vs.,” and how and
several parts, as shown later in Figure W4–2. where to make the vertical border to the right of
the names vary according to local custom.
1. Name, address and telephone number of the attor-
ney filing the paper. In courts that require this in- 4. Case number. The clerk of the court assigns the
formation to be included in the caption (not all case number when the complaint is filed, so the
do), the rules typically require it to be placed at ‘No.’ field is left blank on the complaint. It must
the extreme upper left. In some courts, the at- be included on subsequent papers, or the clerk
torney’s name and address appear below the will refuse the filing. Clerks will not look up case
signature line. Many law firms use preprinted numbers for you.
(or laser-printed) paper in which the firm’s 5. Title of the paper. Below the case number appears
name and address appears at the side, in the left the title of this paper such as “Complaint” or
margin. Your instructor will inform you of the “Motion for Summary Judgment” or some other
preferred practice in your locality. You should title indicating what this particular paper is sup-
identify which party you are representing. posed to be. A common beginner’s misconcep-
2. Name of court. The caption begins with the name tion is to think that there must be some ap-
of the court in which the action is pending, typi- proved list of types of papers that you can
cally in capital letters and centered between the file—there is not. The first paper filed must gen-
left and right margins. In many localities, it is cus- erally be called a complaint, but after that, the
tomary to write this in formal language—that is, clerk will not reject a filing merely because of the
“IN THE SUPERIOR COURT OF THE STATE OF X title that you gave it. Titles should be short but
IN AND FOR THE COUNTY OF Y,” rather than the descriptive. The title is likely to be the first thing
(perhaps more sensible) “Y COUNTY SUPERIOR the judge will read, so try to choose titles that
COURT.” Whatever the custom is, follow it. convey a concise idea of what the paper is about.
3. Names of parties. Below the name of the court, on 6. Other information. Local rules in some jurisdic-
the left-hand half of the page, appear the names tions may require inclusion of certain other in-
of the parties. In the first pleading filed in the formation in the caption, usually immediately
case (usually the complaint) every party on each below the title. Examples include the name of the
side must be listed, including spouses. It is cus- assigned judge, the type of case, whether or not
tomary to list the individuals first, followed by oral argument is requested, and hearing date.
the entities such as corporations, trusts, estates,
etc., and finally the “John Doe” parties, if any. Your Local Notes
On papers filed after the first one in the case, _________________________________________________
it is common to shorten the caption by listing
_________________________________________________
only the first plaintiff and defendant, and refer-
ring to any others as et ux. (and wife) or et al.
(and others). For example, if the list of defen-
dants is “Davy Jones and Amanda Jones, hus-
band and wife; Arnold Smith and Barbara Smith; Step 3 Introductory Paragraph
husband and wife; and Ajax Corporation, a
Delaware corporation,” it will be shortened to Below the caption, the content portion of the docu-
“Davy Jones, et ux., et al.” on subsequent pa- ment begins. As you would expect, the specifics
pers. Why bother to abbreviate in the age of vary depending on what kind of court paper you are
word processing when it takes no more effort to writing. Several of the workshops that follow offer
detailed instructions on how to construct the com- which argument is presented; discovery requests
mon pleadings, motions, and discovery documents. may have lists of questions or lists of categories of
In this workshop, we limit ourselves to mentioning documents being requested. We will leave discus-
a few guiding principles that apply to all or most sion of the content of the various types of court pa-
court papers. pers for later workshops; in this workshop we con-
If you browse through the court file of a lawsuit fine ourselves to matters of format.
(an activity we highly recommend), you will find With a few exceptions, the format and layout of
that a great many of the court papers look superfi- the body of the document are up to you. You are free
cially alike. It is customary to begin motions and to innovate within reasonable bounds and to con-
many other kinds of court papers with an introduc- struct the document in whatever way you think will
tory paragraph or preamble telling the court who is be most effective or persuasive. If you have ever
filing the paper, what its purpose is, and what the written a term paper for an English class, you prob-
main legal authority is supporting it. ably found that the format and layout requirements
Here is an example preamble of a typical court were quite exacting—footnotes laid out to conform
paper: with some incomprehensible formula, headings and
subheadings numbered in exactly the prescribed
Plaintiffs respectfully move for summary
judgment pursuant to Rule 56, Federal Rules
way, and so on. You will be glad to learn that the
of Civil Procedure. practice for routine court papers allows much more
freedom. (Appellate briefs are a special case; format
This simple, three-part sentence can be readily rules for these may be much more exacting.)
adapted to fit many situations: For “Plaintiffs,” you This is not to suggest that you should use the
can substitute “Defendants,” or “Plaintiff John Doe,” format of court papers as a medium to express your
or “all defendants except Richard Roe,” or whatever artistic urges. Format should be inconspicuous, so
best tells the judge who is filing the paper. Instead of as not to distract the judge from the substance of
“respectfully move for summary judgment” you can your argument. A good approach is to study court
write, for example, “hereby give notice that they have papers written by lawyers or law firms whose work
filed their disclosure statement,” or “hereby pro- you admire, and imitate their style and layout. Here
pound the following written interrogatories.” Then are a few format suggestions:
simply add “pursuant to [whichever rule or statute 1. Margins and indentation. The rules will specify
governs whatever paper you are filing].” We will prac- minimum margins; you are free to use wider
tice writing preambles later in this workshop. ones (within reason). Unless a specific rule says
Depending in part on local practice, many otherwise, you are free to decide how much to
lawyers add date and signature lines immediately indent paragraphs and blocked quotations.
after the preamble. (Even if this is done, date and
signature lines are still necessary at the end of the 2. Type size and style. The rules will specify the
document; see Step 5.) Others would omit the date minimum type size and sometimes the font. You
and signature lines and launch directly from the are free to use bold type, italics, or underlining
preamble into the body of the document. Your infor emphasis (we would suggest sparingly).
structor will inform you of the preferred practice in When doing so within quoted material (or when
your locality. changing anything else in a quotation) you must
Not all court papers need this preamble. With disclose what you have done, usually in a par-
argumentative papers whose purpose is obvious enthetical following the citation.
from the title (such as responses to motions) and 3. Citation of authorities. When you make a state-
where local practice allows it, the preamble is ment about the law in a court paper, you are ex-
skipped entirely and the actual memorandum be- pected to support the statement by citing the
gins immediately below the caption. Then the argu- authority for it. The term authority means the
ment itself will begin on the first page, where we source of the law supporting the statement you
hope the judge will notice our gripping lead-in and are making. This may be a primary authority—
be compelled to read on! usually a statute or a reported appellate court
decision that has the force of law—or a sec-
ondary authority such as the Restatement or a
Step 4 Body of Document
textbook written by a legal scholar. To cite au-
thority means to specify the place where it can
What follows the introductory paragraph depends be found.
on the type of court paper. For example, motions How do we cite legal authority, and what
have a “Memorandum of Points and Authorities” in should the format of a citation be? It depends
on the source. In theory, citations of cases, court paper, where appropriate. Longer quota-
statutes, and other authorities in court papers tions are blocked and indented; that is, set out
should be formatted in accordance with the in a separate paragraph or series of para-
rules set out in the handbook The Bluebook: A graphs, usually single-spaced (but check your
Uniform System of Citation, published by the local rules), with margins that are indented in-
Harvard Law Review Association. ward from the rest of the text. Only the quoted
In practice, most attorneys use the Bluebook material is blocked and indented; the citation
only as a general guide, and are quite apt to im- of the source of the quote belongs in unin-
provise when citing an unusual source rather dented text before or after the quotation.
than spend hours trying to figure out where the Quotation format is another subject best
Bluebook says the punctuation should go. Cita- learned by reading and imitating the work of
tions to statutes of your home state are almost others. For those so inclined, however, the
always reduced to three- or four-letter abbrevi- Bluebook gives detailed rules.
ations rather than the longer abbreviations 5. Footnotes. In court papers (unlike term papers
called for by the Bluebook. and academic journal articles), routine cita-
Traditionally, cases are cited to both the vol- tions belong in the text immediately preceding
ume and page in which the case appears in the or following the points they are intended to
state’s official reporter, and to the volume and support, not in footnotes. Explanatory foot-
page in the West regional reporter system. Case notes may be used, but sparingly so as not to
citation customs are also in somewhat of a disrupt the flow of the main text.
state of flux at present due to the increased use
of searchable computerized case law data- 6. Organization and headings. It will improve the
bases such as Westlaw. Some jurisdictions are persuasiveness of your presentation if you or-
now implementing quite radical changes in ganize longer documents into short segments
which cases are cited by a case number and using descriptive headings and subheadings in
paragraph number rather than by the tradi- an outline format. This allows the main thrust
tional volume and page. Your instructor will ex- of your argument to get through, even if the
plain any local customs governing the citation judge merely skims the document. We also fa-
of the court rules, statutes, and cases of your vor including in legal memoranda a short “Sum-
home state; if you add to that a basic knowl- mary of Argument” section at the beginning, as
edge of how to cite the federal rules, federal another way of allowing the judge to absorb
statutes, and cases from the Federal Supple- your position quickly.
ment and the Federal Reporter, you will be well There is no prescribed format for headings
equipped to write routine court papers, since and subheadings, or for the way in which you
by far the majority of citations come from number them; use whatever system best pro-
those few sources. motes readability and persuasiveness. Do,
however, regard them as part of the document
4. Quotations. It is often necessary when writing and not mere appendages, and use them to ad-
court papers to include quotations from cases vance your case. Usually, you can do this best
or statutes, from other court papers, or from by constructing headings that are complete
depositions or other discovery documents. Be sentences, encapsulating the main point of the
absolutely scrupulous in identifying the source material that follows them. Make your head-
of any quoted material and pointing out any ings argumentative. For example, instead of
changes you have made in it. (Sometimes it is “Was Defendant Negligent?” (too general and
necessary to change details such as verb tense not assertive enough), write “Defendant Was
or punctuation so that the quotation will make Negligent When He Failed to Have His Brakes
sense in the context in which you are using it; Repaired after He Knew They Were Defective”
any changed or substituted words go in square (specific and takes sides).
brackets.) Needless to say, you must cite the
source whenever you copy or paraphrase pub-
lished writings of which you are not the author;
to do otherwise is considered plagiarism and Your Local Notes
will subject you to great embarrassment, or _________________________________________________
worse, if caught.
_________________________________________________
Short (less than three lines long) quotations
may be placed continuously with the text of a
one which may be heard ex parte, and every written

Step 5 Date and Signature notice, appearance, demand, offer of judgment,
designation of record on appeal, and similar paper
FRCP, Rule 11, requires all papers filed with the shall be served upon each of the parties.
court to be signed by the attorney. Court papers are 5(d) Filing; Certificate of Service. All papers after
always dated and signed at the end. Immediately af- the complaint required to be served upon a party,
ter the body, the date line should appear. For court together with a certificate of service, shall be filed
papers directed to the judge (motions, responses) with the court within a reasonable time after service,
this should be in the form “RESPECTFULLY SUB- but the court may on motion of a party or on its own
MITTED this 4th day of February, 2000.” For papers initiative order that depositions upon oral
directed to an opposing party (complaint, answer, examination and interrogatories, requests for
documents, requests for admission, and answers and
notices, etc.) this is reduced to “DATED this 4th day
responses thereto not be filed unless on order of the
of February, 2000.” (You do not have to respectfully court or for use in the proceeding.
submit things to an opponent.) Your instructor will
inform you of any local variations. To satisfy the requirement of serving a court pa-
Below the date line is the line for the attorney’s per, you must (1) deliver it in the right way, (2) to the
signature. The format is somewhat variable, but typ- right people, and (3) be able to prove you did it. The
ically consists of the name of the law firm, if the at- right way is easy—all (well, almost all) court papers
torney is a member of one; below that, a horizontal after the complaint are delivered either by mailing
line on which the attorney signs; and on succeeding them or hand delivering them to the person who is
lines, the attorney’s name and perhaps address, and to receive them. Determining who the right people
finally the words “Attorney(s) for [whoever it is that are is usually also straightforward. Unless the judge
the attorney represents—plaintiff, defendant, defen- orders otherwise (sometimes done in complex
dant John Doe, etc.].” The customary format is illus- cases involving many parties), you serve every
trated later in Figure W4–2. Among other things, be court paper on every other party to the suit. Under
aware that the way in which the attorney signature local rules in many courts, if the paper is a motion
line is worded may carry subtle implications about or a response or reply to a motion, you must also
whether the attorney is or is not a partner in the serve a copy on the judge. As with most issues in lit-
firm, a matter about which some attorneys have litigation, there are rules governing the minutiae of
tle sense of humor; therefore, when you work in a how and on whom papers are served; the details are
law office, obtain a sample of the way your employer the subject of another workshop (see Workshop 7
wants his or her signature line to read and follow it on service, docketing, and deadlines).
verbatim. The proof that you served a court paper con-
sists of a statement that appears at the end, fol-
Your Local Notes lowing the attorney signature, reflecting the fact
that the paper was mailed (or hand delivered),
_________________________________________________
recording the date of mailing, and listing the names
_________________________________________________ and addresses of each recipient. FRCP, Rule 5(d),
calls this a certificate of service; be aware, how-
ever, that the terminology, layout, and content vary
considerably by locality. The certificate of service
Step 6 Certificate of Service shown later in Figure W4–2 is one of the common
styles; your instructor will inform you of the pre-
ferred layout in your locality. The mailing certifi-
What do you do with a court paper once you have cate must be separately signed; in theory, by some-
prepared it? Two things: (1) serve it and (2) file it one with personal knowledge of the fact that the
with the clerk of the court. Why? Here is what FRCP, paper was actually placed in the mail to the people
Rules 5(a) and 5(d), provide: listed. In practice, mailing certificates are routinely
signed by the attorney or by a secretary, either of
5(a) Service; When Required. Except as
otherwise provided in these rules, every order whom is likely relying on a messenger or clerk to do
required by its terms to be served, every pleading the actual mailing.
subsequent to the original complaint unless the Although it might seem logical to do so, the
court otherwise orders because of numerous mailing certificate does not always include the clerk
defendants, every paper relating to discovery of the court as one of the recipients. The proof that
required to be served upon a party unless the court you filed a paper with the clerk lies in the fact that,
otherwise orders, every written motion other than if the paper found its way into the court file with the
clerk’s intake stamp on it, you must have filed it. caption and the date and signature lines, insert the
What happens if a paper gets lost after you file it? title of the document into the caption, and our pa-
This does occasionally happen; papers mailed to per is ready to be signed, served, and filed.
opponents also sometimes get lost in the mail. In Figure W4–2 is a sample form for our hypothet-
many ways, litigation operates on the honor sys- ical lawsuit by Shannon Martin against Dr. Collins
tem; attorneys and judges usually accept the word and the hotel.
of a fellow attorney who avows that a paper really
was filed, or that a document was never received,
and some reasonable agreement is worked out. Creating a Court Paper:
(There is a potential trap, here, however: There are
cases holding that it is the responsibility of each at- Learning by Doing
torney to stay informed of the status of a case.
In this workshop, you will prepare a reusable ver-
Therefore, it is wise to anticipate what papers and
sion of the caption, preamble, date and signature
communications you should be receiving from the
lines, and certificate of mailing, for a hypothetical
court and opposing counsel at any given stage of a
lawsuit by Dr. Collins against Shannon and the ho-
case, and to make reasonable inquiry if you do not
tel. Assume the following facts:
receive them. We will have more to say on this in
Workshop 7 when we take up the subject of docket- You are a paralegal in the law office of Roger
ing and deadlines.) If you have computer access to Yarborough, attorney for Dr. Arthur Collins. Dr.
the court docketing system, you should check the Collins is a resident of your city, and Roger
status of filings on a regular basis. Yarborough practices in your city. Banbury Park
Traditionally, rules of procedure required all Hotel is located in another city in your state.
Shannon Martin resides in Arizona, and Park Hotels
court papers in a case to be filed with the clerk of the
Group, Inc., is incorporated in Delaware.
court. In many jurisdictions, this is no longer true. Roger Yarborough tells you that he intends to
Once the use of discovery as an offensive weapon file suit on Dr. Collins’s behalf against Shannon
became widespread, discovery papers comprising Martin and Park Hotels Group in the state superior
thousands of pages became commonplace, over- court or county trial court having jurisdiction in
whelming the capacity of court clerks’ filing sys- your locality. In preparation for filing that suit, he
tems. The response of many courts was to change assigns you to create a suitable formal part to be
the rules so that certain types of court papers used in preparing the complaint and other future
(mainly discovery requests and responses), al- court papers.
though still served on opposing parties, are not filed
with the clerk. FRCP, Rule 5(d), reproduced earlier,
authorizes federal district courts to dispense with EXERCISES
the filing of discovery papers by order in a particu-
In carrying out this assignment, you should follow
lar case; many courts do so in all cases by local rule.
What is filed instead is a one-page notice of service,
a court paper reciting that the document in question 1. Identify, locate, read, analyze, and (we would
was served. This creates a record in the court file es- suggest) make copies for your notes of all of the
tablishing the fact that the paper exists and was rules of procedure that pertain to the formal re-
served. (When a party later needs part of an unfiled quirements for court papers for use in (a) your
discovery document to be in the record for some local county superior court or trial court;
reason, such as to support a motion, the pertinent (b) the federal district court in your locality.
pages can then be filed.)
2. (Instructor’s opinion) Obtain one or two sam-
ple federal and state court filings to use as a
Creating a Court Paper: guide.
Learning by Example 3. From your notes, and using the rules you iden-
tified in Exercise 1, fill in Figure W4–3, which
We now have all of the information needed to pre- will provide you with a handy reference source
pare a form that will include the caption, date and for the common formal rules in your locality.
signature lines, and certificate of service, to be kept
in a word processing file that we can reuse each 4. (Step 1) Obtain the correct type of paper. Set
time we need to prepare a court paper. Then, when- the correct margin, line spacing, font, and type
ever we write a court paper, all we need to do is plug size settings on your word processor.
in the body of the paper in the space between the 5. (Step 2) Prepare the caption.
6. (Step 5) Add date and signature lines. (b) a set of interrogatories; (c) a notice of filing
answers to interrogatories. Your instructor
7. (Step 6) Prepare a form certificate of mailing.
may give you the rules citations to be used or
8. (Step 3) Write suitable preambles for the fol- may prefer to have you determine them on
lowing: (a) a motion for summary judgment; your own.
Figure W4–2 A Court Paper for Martin v. Collins
SIMON & PORTER

Allen Porter
1000 North Central Avenue, Suite 2800
Phoenix, Arizona 85004
(602) 555-4321
State Bar No. 00000
DISTRICT OF ARIZONA

)
) NO. _____
Plaintiff, )
) [TITLE GOES HERE]
vs. )
COLLINS, husband and wife; )
PARK HOTELS GROUP, INC., a )
Delaware corporation; )
)
Defendants. )
_________________________________ )
[BODY GOES HERE]
DATED this _____ day of _______________, 20 __.
SIMONS & PORTER
_______________
Allen Porter
Figure W4–2 A Court Paper for Martin v. Collins, continued
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing was served in accordance with the requirements
of FRCP, Rule 5, by mailing/hand-delivering a copy thereof this _____ day of __________, 20__ to:
Gail Stoddard, Esq.
CRANDALL, ELKINS & MAJOR
Attorneys for defendant Park Hotels Group, Inc.
Roger Yarborough, Esq.
500 Main Street
Dallas, Texas
Attorney for defendants Collins
(You may want to show that the original of the document was sent to the clerk’s office and how
it got there.)
[signature goes here]
Figure W4–3 Formal and Mechanical Requirements in Your Local Courts
ITEM STATE COURT FEDERAL COURT
Location of format
rules (citation)
Paper type
How/where is attorney
name and address shown?
How is name of court
worded in caption?
Required top margin
above caption
Top and bottom margins
Side margins
Line spacing
Page limit and citation
of rule governing it
Preferred format for
mailing certificate
What discovery documents
are filed with court?
Where is the clerk’s office
for filing papers?
Where can court files
be viewed?
Other local preferences
PRACTICE POINTERS
Public Records
Court case files, unless they have been sealed by the courts, are matters
of public record. Therefore, you can determine the litigation history of anyone
(and you will be most interested in the litigation history of opponents) by ac-
cessing the records in the court clerk’s office. Begin by checking with the
court clerk’s office to establish whether you must review the court files in per-
son or whether the files are computerized. Typically these files are organized
as plaintiffs’ and defendants’ logs in alphabetical order. Consulting these logs
will provide you with case numbers and filing dates that will permit you to ob-
tain and then review court records.
Other documents that are a matter of public record include:
■ Property deeds
■ Tax liens
■ Marriage licenses
■ Death certificates
■ Driver’s licenses
■ Business certificates
■ Partnership filings
■ Professional licenses
State and local records are usually easily accessible; individuals can walk in
and request copies of documents. At the federal level, however, requests for
information often require going through the Freedom of Information Act
(FOIA). To initiate a FOIA request first check with the Code of Federal Regula-
tions (CFR) and ascertain the appropriate federal regulations governing
record requests for the federal agency from which you are soliciting records.
The CFR regulations set forth the content requirements of written requests for
records, fee schedules, and other procedural requirements. These requests
should be sufficiently narrow in scope that the agency can readily identify the
nature of the records being sought; requests that are too broad are likely to
be returned by the agency with a demand for a narrower description.
TECHNO TIP
Many public records are now available In many cases you will need to find
on the Internet. County recorders’ of- out information about a corporation, a
fices often have an index to all recorded limited liability company (LLC), or a
documents—liens, deeds, assignments, general or limited partnership. While
etc.—available at no cost. Some, like states vary on the depository for these
the Maricopa County Recorder’s office at documents they can often be found at
http://recorder.maricopa.gov/recorder the state’s corporation commission or
/imaging, have name data available at the secretary of state’s office. Infor-
back to 1983. Copies of recorded doc- mation that is generally accessible
uments, however, are only available (even if digital images of the underlying
back to September 1991. If you need a documents such as the articles of incor-
document marked “Official Copy” you poration, partnership agreement, or
will have to set up an account (at least at the articles of organization for a LLC are
the Maricopa County Recorder’s office) not available) includes the date of in-
and pay a fee for a computer printout of corporation or filing of the formation
the official document. In a like manner documents; the name and address of
the secretary of state’s office usually the organization’s partners or incorpo-
maintains UCC filings, trade name regis- rators, and officers and directors or
trations, and the like. It is now possible, members and managers. The name
in many states, to do your UCC searches and address of the organization’s statu-
on-line. The Arizona Secretary of State’s tory agent are generally available. The
web page is at www.sosaz.com. Copies database may also contain information
of UCC filings are available for those filed on whether the organization is in good
after May 1994. standing.
If you need to find out the as- You can also check to see if a foreign
sessed value of a party’s real estate entity has registered to do business in
(people with expensive properties gen- your state and, if so, who the statutory
erally carry more insurance coverage agent is (this may be valuable informa-
than those of lesser means), you should tion if you need to know if a foreign en-
check your county assessor’s database. tity can be sued in your state’s courts). In
Unlike the county recorder, the asses- Arizona, the corporation commission
sor’s office maintains records showing has a database that is accessible for a fee.
the assessed value of a person’s prop- The costs are, however, minimal when
erty. Other information, such as the you consider you are charged only for
date of construction, number of rooms, the time you are on-line; the rates are
square footage of the residence, type of quite reasonable and you are saving the
garage, etc., is often also available. expense of sending a paralegal to the
Check the Maricopa County Assessor’s main repository (or hiring a third party)
page at www.maricopa.gov/assessor_ to do a manual search.
query_ form.asp for an example of the
type of information available from an
assessor’s office.
FORMS FILE
Summarize the mechanical, caption, and signature requirements

of court papers for the courts in your locality. Underline those require-
ments that are unique or particularly important (especially those that
are likely to result in a rejection of your filings if they do not comply
with local custom or requirements).
Include a sample copy of a certificate of service in your forms
notebook.
KEY TERMS
Certificate of service Notice of service Secondary authority

Cite Primary authority
Drafting Pleadings:
Complaints
WORKSHOP
5
INTRODUCTION: Complaint Drafting:
COMPLAINT DRAFTING
The complaint is the first “official” document in a
lawsuit. The filing of the complaint with the clerk of There are many ways to draft a complaint, and given
the court is the event that marks the beginning of the same client and the same facts, it is unlikely that
the lawsuit. FRCP, Rule 3, provides, “A civil action is any two litigators would produce exactly identical
commenced by filing a complaint with the court.” complaints. Our instructions describe one way that
In the “how to” part of this workshop, we pre- will lead to an acceptable completed product.
sent a cookbook approach to complaint drafting— Local variations are common. Your instructor
that is, a series of step-by-step instructions for you will point out any changes that need to be made for
to follow when drafting a complaint, together with the courts of your locality. You should always consult
an explanation of the reasons underlying each step. the local rules. You may also find it helpful to read,
In the second part, we demonstrate how to and perhaps copy and add to your form file, com-
use our step-by-step instructions to prepare a plaints filed by others in your area. Court files are
complaint on behalf of our hypothetical plaintiff, public records, and if you do not have access to a law
Shannon Martin. firm and its forms file, you can go to the courthouse
The final, and most important, part consists of and read complaints from the files of actual cases.
practical, hands-on exercises. You will be asked to The preparation of pleadings is governed by
prepare a complaint on your own, using an assumed FRCP, Rules 7 through 11. These rules answer many
hypothetical fact situation and to explain the vari- of the questions that will arise as you attempt to draft
ous choices you make as you do so. a complaint. We suggest that you peruse them now,
The question uppermost in your mind as you even though you may not understand them com-
begin any task in litigation should be “What pur- pletely, and then read them again carefully after you
poses am I trying to accomplish with this task?” have finished reading the step-by-step instructions.
Complaint drafting is no exception. We will mention
some of the important goals of complaint drafting in Your Local Notes
sidebars as we go along. _________________________________________________
_________________________________________________
PREPARATORY STEPS
SIDEBAR
The first two steps involve assembling the informa-
Dealing with Local Variability tion that you will need to have ready as you begin
drafting.
Complaint drafting is a detail-intensive task,
and many of the details vary from state to state and Assemble the Basic
from court to court. At each step in the discussion of Step 1 Factual Information
this chapter, your instructor will tell you how to tai-
lor your drafting to the courts of your locality. Before you can begin to draft, you need to have
We provide a checklist (see Figure W5–3 at end some basic knowledge of the facts of the case. These
of workshop) for you to write down these points of facts are obtained by interviewing your client, and
local procedure. Filling in the details in the blanks by obtaining pertinent facts and documents, such as
provided in the checklist will be your first task in police reports, from other sources. Obviously, we
the “hands-on” segment of this workshop. You cannot give you a checklist of the facts you will need
may want to read Figure W5–3 now and keep it in for every conceivable type of complaint because the
mind as your instructor explains the step-by-step facts needed will vary depending on what you are
instructions. suing about. (Law firms that concentrate in special-
ized areas, such as automobile accidents, often do
286 WORKSHOP 5 Drafting Pleadings: Complaints
use printed client interview questionnaires that DRAFTING STEPS

have been carefully designed to obtain the neces-
sary facts.) Next, we begin drafting the complaint. For conve-
Certain facts, however, are necessary in every nience, we will break the complaint up into smaller
case. Here are some of them: parts and take each in the order in which it appears
in the complaint itself. You may find it helpful to re-
1. The names of the parties you are suing. fer to the sample complaint (see Figure W5–2 in a
2. The state and county of residence of the parties later section).
you are suing. In the case of corporations and Because matters of style and format are essen-
other entities, you need to know at least the tially the same for all court papers, we will not re-
state in which the entity is incorporated or cre- peat the material covered in the workshop on court
ated and may also need to know the county and papers (Workshop 4) except to note those few spe-
state in which the entity has its principal place cial requirements that apply to complaints.
of business. Remember, one of the main jobs of the com-
plaint is to begin the lawsuit. “A civil action is com-
3. The main facts that led to the injury for which
menced by filing a complaint with the court”; see
your client is suing.
FRCP, Rule 3. Notice that drafting a complaint is not
4. The place where the injury to your client oc- enough—you also have to file it. To do that, you
curred, and the date on which it occurred. must, at a minimum, prepare a complaint that the
clerk will accept for filing. When you (or, more likely,
Determine the Elements of your messenger or process server) present the
Step 2 the Claims You Intend to Raise complaint to the clerk for filing, the clerk will check
to be sure you have followed various rules.
What things does the clerk check for at the time
As we will see, the complaint must allege each ele-
of filing, and what kinds of mistakes may prompt the
ment of each legal theory or cause of action on
clerk to reject the filing? First and foremost, the for-
which you intend to base the suit.
mat must conform to the requirements in the court’s
In many lawsuits, the facts will support more
local rules. Caption, paper size, type size, line spac-
than one possible cause of action. It is a matter of
ing, margins, backing sheets if required—all must be
strategy whether to include all of the possible
correct. Be especially attentive to obvious rules
causes of action in the complaint (the “shotgun” ap-
such as the upper margin on the first page; many
proach) or whether to rely on one or a few of the
courts require a large margin to accommodate the
strongest ones.
stamps to be applied by the clerk. Another common
To be able to make this strategic decision, you
reason for rejection of a filing is failure to present
first need to identify all of the causes of action that
other required items, such as the filing fee and any
are possible under the facts given, and to determine
information sheet, arbitration statement, or other
and list the elements of each one. For commonplace
papers required by local rule.
causes of action, this may be very simple; you prob-
ably already know, for example, that the elements of
negligence are duty, breach of duty, causation, and Step 3 Prepare the Caption
damages, without having to do any legal research. If
your suit involves more complicated legal theories—
securities fraud, say—you will need to spend some The caption is in most respects the same as for all
time doing legal research before you will be ready to court papers. Again, you should refer to the work-
start drafting. shop on court papers for the details. One important
Outlining the possible causes of action and difference is that the caption of the complaint
their elements is a task of sufficient importance that should list all parties to the suit. In court papers
we addressed it separately in Workshop 1. In this other than the complaint, it is commonplace to list
complaint drafting workshop, we will use the issues only the first plaintiff and the first defendant. In-
outline that we prepared in Workshop 1 as the basis stead of listing all additional plaintiffs and defen-
for drafting our complaint. dants, abbreviations like et al. (Latin for “and oth-
ers”) and et ux. (Latin for “and wife”) are used. This
is not done in the caption of the complaint because
Your Local Notes the complaint will be the first document in the file,
_________________________________________________ and its caption needs to be complete.
The space for the case number is left blank in
_________________________________________________
the caption of the complaint. The clerk of the court
will assign a number when the complaint is filed.
WORKSHOP 5 Drafting Pleadings: Complaints 287
Be aware that local rules sometimes specify ad- against future problems) to include jurisdictional al-
ditional bits of information to be included in the cap- legations in all complaints. This practice also has the
tion of the complaint, such as the type of case, virtue of forcing the drafter to think about the issue
whether it is subject to arbitration, or whether a of jurisdiction. Many defenses are lost if the defen-
jury trial is demanded. Your instructor will provide dant does not assert them early in the case, but the
you with the details for the courts in your locality. defense of lack of jurisdiction can be raised at any
time—even after trial! So if there are any lurking ju-
The Preamble and risdictional defects, they need to be found and dealt
Step 4 Numbering Systems with. Otherwise, you risk having your case suddenly
dismissed out from under you after you have spent
A complaint begins with a preamble, or introduc- months of your time and thousands of dollars of your
tory paragraph or phrase. Here we enter into the client’s money getting ready for trial.
stylistic aspects of complaint drafting (see side- It is also necessary, somewhere in the complaint,
bar). Individual preferences and local customs vary to identify the parties. Since the court’s jurisdiction
from the simple and direct to the flowery and ar- often depends on the residence of the parties, it is
cane. We favor the former, and believe that the mod- convenient to group the pertinent allegations to-
ern trend is away from pleadings couched in ar- gether at the beginning of the complaint.
chaic legalese. In identifying the parties, the information to be
As a preamble, we recommend the phrase included is the following:
“Plaintiff alleges:” or, if there is more than one plain- 1. The party’s full name, if known. (What if you do
tiff, “Plaintiffs allege:.” not know a party’s name? See sidebar on
The individual paragraphs of the body of the unidentified parties.)
complaint are numbered, so that the answer to the 2. If the party is an entity, such as a corporation or
complaint can refer to each paragraph by number. partnership, you should say what the party is
Customarily, the complaint is also divided into sep- and what state’s laws it is organized under. If the
arate sections, or counts, for each separate cause of entity does business in the state in which suit is
action being asserted. being filed, that should be mentioned as well.
It is traditional, and still commonplace, to num-
ber the paragraphs of a complaint using centered, 3. If the party is a natural person—a human be-
capitalized, Roman numerals above each para- ing—give his or her county and state of resi-
graph. This method is perfectly acceptable, al- dence. (Why the county rather than the city?
though our preferred method is to number the para- Because the venue rules of most states are ap-
graphs at the side using ordinary numbers because plied by county.)
large Roman numerals are confusing to many peo- 4. If the party has some relationship with another
ple. Some practitioners also number the para- party in the suit—husband, wife, employer,
graphs within each count separately, starting over etc.—the relationship should be stated.
with Roman numeral one in each new count; we rec-
Paragraph 1, then, will identify and give the resi-
ommend against this practice because having sev-
dences of the plaintiffs. For example: “Plaintiffs
eral paragraphs with the same number can lead to
Ronald Albert Carson and Mary Jane Carson, his wife,
ambiguity and confusion.
are residents of Los Angeles County, California.” (If
there are more plaintiffs than will conveniently fit
Your Local Notes into one paragraph, then continue identifying plain-
tiffs in as many additional paragraphs as needed.)
_________________________________________________ After all the plaintiffs have been identified and
_________________________________________________ their residences and relationships given, it is time to
identify the defendants. This is done in identical
fashion. For example: “Defendant Elite Fastener Cor-
poration is a corporation organized and existing un-
Step 5 Jurisdiction and Parties der the laws of Delaware, whose principal place of
business is in Denver, Colorado.”
We have seen (see Chapter 2) that we must be
FRCP, Rule 8, requires that the complaint include “a concerned with two kinds of jurisdiction: jurisdic-
short and plain statement of the grounds upon which tion of the subject matter and jurisdiction of the per-
the court’s jurisdiction depends.” Although state son of each defendant. In the simple cases in state
court rules do not necessarily impose this require- courts, the allegations giving the residence of the
ment, it is customary (and a sensible precaution parties are enough to establish both. State courts
are courts of “general subject matter jurisdiction”;

that is, they are empowered to hear all types of
Step 6 Relationships among Parties
cases, with few, if any, limits. (We are referring, of
course, to the state superior courts or other origi- In all but the simplest cases, some of the defendants
nal trial courts, whatever they may be called in your you are including in the suit are named not because
state. Some state courts, such as small claims they did anything to your client, but because they are
courts, do have limits on their subject matter juris- responsible in some way for the actions of the person
diction, and it is then necessary to show in the com- who did injure your client. There are many examples
plaint that your case falls within those limits.) If the of this derivative liability. One of the most common is
defendants are residents of the state in which suit is the tort doctrine of respondeat superior, which makes
being filed, then the court automatically has juris- an employer liable for torts committed by an em-
diction of their persons—state courts always have ployee. Another, in community property states, is the
jurisdiction over the persons of residents of the liability of one spouse for acts of the other.
state. Thus, in suits in state court against state res- Relationships giving rise to liability must, of
idents, it is sufficient to allege the identity and resi- course, be alleged; otherwise, there would be noth-
dence of each defendant. ing in the complaint to show why the innocent em-
Federal courts are courts of “limited subject mat- ployer or spouse is being sued, and the judge would
ter jurisdiction”; that is, they are empowered to hear dismiss them from the suit.
only those types of cases for which Congress has
At all times material hereto, defendant John
granted them power. Where does this power come Raymond O’Hara was employed by defendant Purple
from? Federal statutes. In your federal court com- Taxicab Company and acted within the course and
plaint, you must state on which federal statute the scope of that employment. Defendant Purple Taxicab
court’s jurisdiction will be based. The two most com- Company is liable for the acts and omissions of
monly seen are 28 U.S.C.§1332, giving federal courts defendant John Raymond O’Hara complained of
the power to decide disputes between citizens of two herein under the doctrine of respondeat superior.
different states where the amount in dispute is more Defendant Anne Marie Brown is the wife of
than $75,000; and 28 U.S.C.§1331, granting jurisdic- defendant Gerald Joseph Brown. At all times material
tion over all civil actions arising under federal law. hereto, defendant Anne Marie Brown acted both
See the sample complaint later in this workshop for individually and on behalf of the marital community
an example of how these allegations are worded. consisting of defendant Anne Marie Brown and
Jurisdiction of the person can become more Gerald Joseph Brown.
complicated when you file suit in state court against
defendants who are not residents of the state in
which the court sits. Then, it becomes necessary to Step 7 General Allegations
rely on long-arm statutes to drag the defendant back
into your state. We will not repeat the discussion of In the remainder of the body of the complaint, you
long-arm jurisdiction here (see Chapter 2). As a must give “a short and plain statement of the claim
practical matter, however, most long-arm jurisdic- showing that [plaintiff] is entitled to relief”; see FRCP,
tion derives from the fact that the defendant did Rule 8(a). To do this, you must accomplish two main
something in the state that caused the dispute. If so, goals: (1) Give a short summary of the facts of your
when you identify that defendant, the allegation case—that is, tell what happened to your client; and
should mention defendant’s connection with the fo- (2) state the particular facts necessary to establish
rum state. There is standard language for this: “De- each of the elements of each cause of action.
fendant Roger Anderson is a resident of Michigan We suggest that this is best done by dividing the
who caused an act or event to occur in Arizona out task into two parts: First, tell what happened, in a sec-
of which plaintiff’s cause of action arises.” (If the tion we will call “General Allegations”; then, in sepa-
style seems inelegant, it is because the language fol- rate counts, one for each cause of action, establish the
lows that typically used in long-arm statutes.) elements of the claims. This may entail some repeti-
Obviously, jurisdictional issues can arise in a tion, but there are good reasons for doing it this way.
given case that raise complexities that go beyond Chief among these is the fact that this approach
what we have covered here. In such cases, you will allows you to create a persuasive and compelling
need to research the issues and draft allegations tai- narrative of your client’s story, free of the distrac-
lored to your situation, sufficient to explain why the tion of worrying about the legal minutiae. This is im-
court has jurisdiction of the subject matter and the portant, and goes to the heart of what litigation is all
parties. Remember, the rules call for a “short and about. How do you convince a judge or jury to rule
plain” explanation, not an essay! in your favor? By creating the impression that ruling
in your favor is the right thing to do, not by showing most persuasive argument you can make. Gerry
that you have proven all the elements of your cause Spence, one of today’s premier trial lawyers, in his
of action. You need to do that too, of course, but it book How to Argue and Win Every Time, recommends
will not be enough by itself to ensure success. First, that all legal arguments be cast in the form of stories.
persuade the judge or jury that justice is on the side This part of the complaint represents a golden op-
of your client, that it is only fair and right for your portunity for you to begin persuading the judge of the
client to win. Then provide enough law to support a rightness of your cause; in deciding motions, judges
decision in your favor. Remember, “a man convinced often scan the complaint to see what the suit is about.
against his will is of the same opinion still.” How much detail should you include?: Obviously,
In the General Allegations section, simply tell some judgment is required. The General Allegations
your client’s story in the most convincing way you section should typically be a page or two (double-
can. Properly told, your client’s story may be the spaced, typewritten on standard paper) and should
SIDEBAR
Pleading Damages
Can you guess what single thing is an element of ways give a summary of the various ways in which
every cause of action? Damages. your client has been injured or lost money as a result
Lawsuits are about damages. You sue because you of defendant’s conduct.
have suffered some loss as a result of defendant’s con- Having described plaintiff’s injuries and losses in
duct. What should you say about your losses in the the General Allegations section, it is unnecessary to re-
complaint? peat the description in each of the counts. Each count
At a minimum, you must allege that “plaintiff has should simply conclude with the following boilerplate:
been damaged.” Should you specify the kinds of losses “As a proximate result of the acts and omissions of de-
or injuries plaintiff has suffered? Should you attach a fendant(s) complained of herein, plaintiff has been
dollar value? damaged in an amount which plaintiff will prove.”
This satisfies the requirement of pleading the causa-
In general, the General Allegations section should
tion and damages elements, for this count.
describe at least the general types of damages plain-
tiff has suffered. If plaintiff was physically injured, de- Should you specify dollar amounts? It depends. If
scribe the type of injury; if plaintiff lost income or had your client’s medical bills are in six figures, that is a
property damaged or destroyed, say how, in a sen- persuasive indication of the gravity of the injuries, and
tence or two. If plaintiff was (or still is) in pain, or if is well worth including in your narrative. Never pin
plaintiff has suffered some permanent injury or dis- yourself down exactly unless you are absolutely sure—
ability, these things should be mentioned. If plaintiff opt for “medical bills in excess of $105,000,” not “in-
has incurred financial losses or specific expenses, it is curred medical bills of $105,128.24,” because you will
important to allege at least the general categories, invariably discover later that some item has been
such as, “plaintiff incurred substantial hospital, physi- omitted. If in doubt, it is acceptable in many jurisdic-
cian, and related charges. . . .” tions to plead more generally—say, “plaintiff incurred
FCRP, Rule 9(g) requires that “items of special medical bills in a substantial amount”—without at-
damage . . . be specifically stated.” General dam- taching a number. Your instructor will tell you whether
ages are the losses that would naturally be expected this is permitted in your locality.
to occur in every case based on the same theory of li- A final caveat: The foregoing discussion deals
ability (for example, pain and suffering in a case of as- with the question of whether to state the amount of
sault and battery). Special damages are the partic- money plaintiff claims to have lost. Whether to ask the
ular losses that your client has suffered, above and court to award a specific amount of money is another
beyond the general damages (for example, a medical question, which we will address in connection with the
bill for setting your client’s broken arm). The distinc- prayer for relief. The amount plaintiff has lost is not
tion between general and special damages can be the same as the amount you are asking the court to
rather technical and esoteric, and this is not the place award. In most cases plaintiff is entitled to be com-
for an extended essay on the subject; as a practical pensated for such things as pain and suffering that go
matter, the lesson of Rule 9(g) is that you should al- beyond plaintiff’s actual losses.
not exceed four or five pages except in the most

complicated, multiparty cases. This suggestion is
SIDEBAR
based on consideration of what is desirable in order
to create the most persuasive narrative. Too short, Truth or Consequences
and there will not be enough detail to understand
Do you have to tell the truth in a complaint?
what the case is about. Too long, and the reader will
What happens if you do not? What do you do if you
lose interest.
are not sure what really happened?
Some facts should always be included in your
narrative. The dates on which the main events FRCP, Rule 11, is a very important rule, one that
happened are important, to make it clear that the you should read, understand, and take to heart. It
suit is not barred by the statute of limitations. You sets the boundaries between permissible advocacy
should specify the places where events happened and improper twisting of the facts. Rule 11(b) says
and make it clear “who did what to whom.” Be sure that when an attorney files any court paper with the
to include the main “bad acts” of defendant. This court, he or she is certifying that, to the best of his or
is a lawsuit, and you are asking the court to take her knowledge, information, and belief, “the allega-
money away from the defendant and give it to your tions and other factual contentions have evidentiary
client, so you need to tell your client’s story in a support, or, if specifically so identified, are likely to
way that will make a judge or juror feel justified in have evidentiary support after a reasonable oppor-
doing so. For the same reason, always give a de- tunity for further investigation or discovery. . . . ”
scription of how your client has suffered losses, Therefore, if you state in your complaint that
and tell how these losses were caused by defen- “defendant John Doe was intoxicated at the time of
dant’s conduct. (See sidebar on pleading dam- the collision,” you are certifying to the court that
ages.) After reading your narrative, the reader you have evidence that defendant was, in fact, in-
should be left with a clear sense that defendant’s toxicated. The penalties allowed by Rule 11 for
wrongful act, whatever it was, had a serious and making bold factual statements that you cannot
harmful effect on your client. support can be quite severe, up to and including
The narrative should be in chronological or- dismissal of your case and imposition of fines. The
der—do not resort to flashbacks, imagery, and unstated penalty is perhaps even more severe: At-
other such literary devices. Just tell what hap- torneys who play fast and loose with the truth
pened in the order in which it happened. Try to quickly lose their credibility with the court.
include enough factual detail to make the se- What if you are pretty sure that defendant was
quence of events easy to follow—to make a read- intoxicated, and you think that you will be able to
able and compelling story—but keep it short. prove it after you obtain discovery of defendant’s
Writing in litigation always involves a trade-off: blood alcohol test? Rule 11 offers the solution: You
On one hand, you would like to include all of your specifically identify that fact as one that is likely to
most persuasive arguments, but on the other have evidentiary support after a reasonable oppor-
hand, the reader likely will not have time to read tunity for discovery. How? The standard shorthand
more than some small number of pages. The so- consists of the phrase, “upon information and be-
lution is to make your writing clean, tight, and in- lief.” For example, “Upon information and belief,
teresting, and to position the most important defendant John Doe was intoxicated. . . .”
matters near the beginning.
At the time the complaint is prepared, you will
often find that you simply do not have all of the
Your Local Notes
facts. What then? Can you speculate as to what
you think probably happened? In fact, to an ex- _________________________________________________
tent, you can, if you follow the rules. See the side-
_________________________________________________
bars “Truth or Consequences” and “Alternative
Pleading.”
a motion to dismiss for failure to state a cause of ac-

tion. Our exhortations about avoiding “legalese”
Step 8 Causes of Action
and technical language do not apply here. Indeed, it
is often better to recite the elements of the causes
Having told your client’s story, the task that re- of action in the exact language of the cases or
mains is to allege each element of each cause of ac- statutes from which they are derived, since doing
tion. Our purpose now shifts from that of persua- so will make it harder for defendant to argue later
sively telling our client’s story to that of forestalling that we have omitted some element.
SIDEBAR
Alternative Pleading
Suppose Doug Ryder is a bouncer at the Rowdy Then, in the Causes of Action section of the com-
Bar and Grille, and in the course of breaking up an al- plaint, you include both a count of battery and a
tercation between other patrons, Doug hit your client count of negligence against defendant Doug Ryder.
with a pool cue. You are not sure whether Doug de- These two counts are, of course, inconsistent—Doug’s
liberately hit your client or was merely careless. If act of striking plaintiff with a pool cue cannot have
Doug acted deliberately, your client has a claim for been both intentional and unintentional. Does this
battery, which is an intentional tort. If Doug was just matter? Not as long as you have a reasonable basis to
careless, the claim should be for negligence. What believe that the evidence, once discovered, may sup-
should you do? port either version.
Plead in the alternative. FRCP, Rule 8(e)(2), allows A final word of caution: Pleading in the alternative
you to “set forth two or more statements of a claim or does not absolve you of the responsibility to obey Rule
defense alternately or hypothetically.” In the General Al- 11. You must still have a reasonable belief that eviden-
legations section, you allege: “On information and be- tiary support is likely to exist for each of the factual
lief, defendant Doug Ryder intentionally struck plaintiff statements you make.
with a pool cue. In the alternative, in striking plaintiff
with a pool cue, defendant Doug Ryder acted in a care-
less and negligent manner.”
SIDEBAR
Notice Pleading
Is it really necessary to recite laboriously the ele- “Defendant owes me money”—is sufficient to state a
ments of each of your causes of action? claim in a suit on a debt. The idea is that, once given
To answer that question, we must review a bit of notice of the general nature of the suit, defendant can
history. In the early part of this century, pleading had find out the details through discovery.
evolved into a complex and arcane game in which There is an important exception to the principle of
trivial missteps could lead to sudden dismissal. The notice pleading. FRCP, Rule 9(b), states that “In all aver-
federal rules, first adopted in 1938, were intended to ments of fraud or mistake, the circumstances constitut-
do away with this emphasis on form over substance by ing fraud or mistake shall be stated with particularity.”
adopting what was termed notice pleading. In theory, Thus where fraud is alleged, the rules specifically require
the complaint is merely required to give notice to the that you give a higher degree of detail, and cases de-
defendant that suit has been filed, with at least some cided under Rule 9(b) hold that you must specifically
reasonable indication of the subject matter. For exam- plead each element of the cause of action for fraud.
ple, in theory, a complaint with only one allegation—
Is this laborious enumeration of each element there is some other theory of liability that would
of each theory of liability necessary? In theory, ex- have fit your facts, but which you did not think of,
cept in fraud cases, probably not (see sidebar on your opponent will argue that you cannot use it
notice pleading). It is, however, customary, and if because you did not plead it. This argument is
you neglect to allege all the elements of your claims probably incorrect, since there is case law holding
(or worse, attempt to allege them and inadvertently that a plaintiff is entitled to recover under any the-
leave out an element), you invite a motion to dis- ory of liability supported by the facts alleged in
miss, which will take time and cost money to re- the complaint, but such disputes are best antici-
spond to even if you ultimately prevail. pated and avoided. We recommend beginning the
There is one potential downside to listing all “Causes of Action” section with the following boil-
of your causes of action and their elements: If erplate allegation:
Plaintiff(s) are entitled to recover damages from In garden-variety suits for damages, after alleg-
defendants and each of them based on the theories ing the elements of each theory of liability, you are
of liability hereinafter enumerated in Counts I finished with the “counts” and ready to move on to
through ___, and under such other theories of the prayer for relief (see Step 9). In more complex
liability as may be appropriate based upon the facts
cases, however, where you are asking for more than
as alleged herein or as revealed during discovery.
just ordinary damage, you may need to include
Next should follow the causes of action them- some additional counts to cover the particular
selves, set out in counts, one count for each sepa- kinds of relief you are seeking.
rate theory of liability or cause of action. Each For example, to receive punitive damages—dam-
count begins with a centered heading, with the ages intended to punish the defendant—you must
counts numbered in sequence. (In very simple show that defendant acted in an unusually reprehen-
cases, where there is only one theory of liability and sible manner deserving of punishment. Exactly what
it applies equally to all defendants, there will be you must allege and prove to receive punitive dam-
only one count. In that case, it is unnecessary to set ages depends on the substantive law on which your
it off separately with its own heading.) To make the suit is based. Whatever the elements are that you
complaint easier to read, we suggest that the head- must prove, allege them in a separate count for puni-
ing also state on what theory of liability this count tive damages. (In the sample complaint later in this
is based, and indicate to which defendants it per- workshop, Figure W5–2, we have used the standard
tains. For example, for Arizona. Cases potentially involving punitive
damages arise often enough that you should find out
COUNT I—Negligence what the standards are in your state, either from
(All defendants) your instructor or as a research exercise.)
or, Likewise, there are additional allegations that
must be included if you are asking the court for an
COUNT XIV—Breach of Contract injunction or for a declaratory judgment. You can
treat such requests simply as additional counts,
(Against defendants Rogers and Acme Foundry making sure to include all of the elements required
Corporation) under whatever law applies to your case.
After the heading, the elements of the pertinent
theory of liability are alleged in a very summary Step 9 Prayer for Relief
fashion in a few short paragraphs. Paragraph num-
bering continues in sequence from the General Al-
legations section. A great deal of factual detail is un- The final section of the body of the complaint is the
necessary; include enough facts to tie the elements prayer for relief. It is here that you say what you are
to your own fact situation, then stop. For example, asking the court to do. The prayer for relief is
if you have already described how the auto acci- worded in standard language, usually copied from a
dent occurred in the General Allegations section, form complaint. In a typical lawsuit, plaintiff is ask-
you need not repeat the description in the negli- ing for money damages. If local custom in your lo-
gence count. Indeed, the negligence count may con- cality calls for a particular wording or layout, your
sist of a single paragraph: instructor will inform you, or you can get an idea of
local practice by reading complaints that others
Defendant Sue Johnson had a duty to operate have filed. The following stock prayer for relief, with
her motor vehicle with due care, and breached said
the appropriate dollar amount inserted, should be
duty by failing to obey the red traffic signal. As a
proximate result of the negligence of defendant Sue
at least adequate in any American court:
Johnson, plaintiff was damaged in an amount which Wherefore, plaintiff requests that the Court enter
plaintiff will prove. judgment in favor of plaintiff and against defendants
and each of them as follows:
This short paragraph alleges the four elements
of the tort of negligence, which are duty, breach of 1. For general and special damages in the
duty, causation, and damages, and is sufficient to amount of $100,000.00.
state a cause of action for negligence. (Some practi- 2. For plaintiff’s reasonable costs and attorney’s
tioners may prefer more factual detail in the counts; fees incurred herein.
3. For such other and further relief as to the
there is no great harm in erring on the side of too
Court seems just in the premises.
much detail as long as you can prove what you are
alleging and as long as the allegations in the counts The request for general and special damages is
do not contradict what you already said in the Gen- standard and should appear in every complaint.
eral Allegations section.) Should you specify a dollar amount? It depends on
the court and the type of case. In some courts, the relief—write exactly what you want the court to or-
rules require you to ask for a specific amount. In oth- der defendant to do. If you are seeking a declaratory
ers, it is permissible to substitute a request for “gen- judgment, write the exact wording of the declara-
eral and special damages in an amount which plain- tion you are seeking and include it in the prayer. If
tiff will prove.” Why would you want to be so vague your lawsuit involves categories of damages other
about the amount you are asking for? Because de- than general and special damages—punitive dam-
ciding exactly how much to ask for is difficult, espe- ages, treble damages under various statutes, etc.—
cially at the time of filing the complaint, when you these must be requested.
are unlikely to have all the facts. If your complaint
specifies a low amount and you later find that the ev-
idence would support a higher demand, you will Your Local Notes
have to ask the court for permission to amend the
_________________________________________________
complaint, and you may not get it. If you err on the
high side—which is about the only way to avoid _________________________________________________
erring on the low side—you can be sure that your
unreasonable demand will come flying back at you
in front of the jury as your opponent tries to paint
you and your client as greedy opportunists. For Date, Signature,
Step 10 and Verification
these reasons, we generally prefer not to specify a
dollar amount in the complaint unless the court re-
quires it. There is one exception: cases in which it ap- The complaint concludes with the standard date and
pears that a defendant is likely to default. The court signature lines used in all court papers (see Work-
has no power to grant a default judgment exceeding shop 4, Court Papers). There is no mailing certificate,
the amount demanded in the complaint, so if a de- since the complaint cannot be served by mail.
fault is likely, a specific amount must be specified. Notice that it is the attorney, not the client, who
The party who wins a lawsuit is entitled to judg- signs the complaint. FRCP, Rule 11(a), requires that
ment for his or her court costs; see FRCP, Rule “Every pleading . . . shall be signed by at least one at-
54(d). The request for costs should be included in torney . . . ” (except, of course, when the party has no
every complaint. The costs that can be awarded are attorney). Why the attorney instead of the plaintiff?
limited to certain allowable categories of expenses. Recall that FRCP, Rule 11(b), provides that when an
In federal court, the allowed categories are listed in attorney signs a complaint, he or she is certifying to
28 U.S.C. 1920 and include such things as filing fees, the court that he or she has made a reasonable in-
court reporter fees, witness fees, and process quiry and believes that the allegations are support-
server fees. For the types of costs allowable in state able and proper. In other words, the attorney’s signa-
court, it is necessary to consult state statutes or ture on the complaint gives the court a weapon with
court rules. which to enforce the ethical requirements of Rule 11.
Costs do not include attorney’s fees. The win- In times past, there was often a requirement that,
ner of a lawsuit may or may not be entitled to judg- in addition to the attorney’s signature, the client fur-
ment for attorney’s fees; it depends on the type of nish a sworn affidavit attesting to the truth of the al-
case (awards of attorney’s fees are common in legations of the complaint. This is called “verifying”
breach of contract actions, uncommon in tort the complaint, and is accomplished by following the
cases) and on the substantive law on which the signature line for the attorney with a “verification.”
claims are based. Since there is no penalty for ask- The verification is pure boilerplate, and typically
ing, we suggest including the request for attorney’s looks like that shown in Figure W5–1. The verification
fees in every complaint unless it is completely clear is signed by the plaintiff and notarized; it is the nota-
that there is no basis for doing so. rization that makes the verification “sworn.”
The request for “other and further relief” is tra- The federal rules have abolished verification
ditional, and probably accomplishes little or noth- “except when otherwise provided by rule or
ing in modern practice. Nevertheless, if practition- statute.” In ordinary suits for damages, verification
ers in your locality customarily include it, you is not required; if any of your theories of liability are
should do likewise. derived from statute, consult the statute to be sure.
Our stock prayer for relief serves as a starting State court verification requirements vary from one
point. In each new case, you will need to consider state to another. Your instructor will let you know
whether there is anything you are asking the court about any important categories of cases for which
for that is not covered. If so, add one or more para- verification is required in your locality.
graphs. For example, if you are seeking an injunc- Never verify a pleading if it is not required.
tion, you must include the request in the prayer for (More generally, never let a client sign any paper in
Figure W5–1 Verification of a Complaint
VERIFICATION
Plaintiff [put in name], being first duly sworn, upon his [her] oath deposes and says: That he [she] is the
plaintiff in the above-entitled action; that he [she] has read the foregoing complaint and the allegations
thereof are true of plaintiff’s own knowledge, except such allegations as are made upon information
and belief, and these plaintiff believes to be true.
___________________________________
Plaintiff
SUBSCRIBED AND SWORN to this ___ day of ____________________, 20___, before me,
the undersigned Notary Public.
___________________________________
Notary Public
a lawsuit unless it is required.) A complaint is a 3. A check for the required filing fee.
technical document, much of which (in particular,
Many courts also require a completed informa-
the counts alleging the theories of liability) is in-
tion sheet for the use of the clerk or court adminis-
comprehensible to clients who lack legal training. A
trator, giving summary information about the case,
verified complaint is potential ammunition for your
the parties, and the lawyers. Your instructor will ap-
opponent to use to create an appearance that your
prise you of any such requirements in your locality,
client was untruthful when he or she swore to hav-
and of any other local requirements for filing a com-
ing “read and understood” the complaint; you can
plaint in your jurisdiction. Whenever you are
be sure that your client’s understanding will be
preparing a suit for filing in a court whose proce-
tested when your client’s deposition is taken.
dures are not familiar to you, it is essential to con-
sult the local rules for any requirements beyond the
CONCLUDING STEPS summons and complaint.
You will also need an instruction sheet for the
process server, indicating how, where, and on
Step 11 Prepare Accompanying Papers whom you want the summons and complaint
served. This may be as simple as a handwritten
For the clerk of the court to accept your complaint note, or your law firm or process server may have
for filing, you must present, in addition to the com- printed forms. Any information you can give the
plaint itself (including any exhibits that you have in- process server about where defendants can be
corporated by reference), at least the following: found will help reduce the need for expensive trac-
ing procedures, and lower service costs.
1. A number of copies of the complaint at least It is often a good strategy (if the rules of your
equal to the number of defendants upon whom locality allow it) to serve discovery requests with
you will be serving process, plus one for your the complaint. Because of the recent wave of ex-
own file. The clerk will retain the original com- perimentation with limitations on discovery, there
plaint for the court’s file and “conform” the is great variability from one locality to another in
other copies by stamping them with the case the kinds of discovery that are permitted in the
number (assigned at the time of filing) and with early stages of a lawsuit. Your instructor will pro-
the clerk’s stamp or seal. vide the details for your locality, or you can consult
2. An original summons for each defendant to be the local rules.
served, and a copy for your file. The clerk will is-
sue these summonses by affixing the appropri- Check Accuracy
ate stamps or seals. Summonses are commonly
Step 12 and Make Revisions
either printed forms (available from a legal forms
printer) or word processor forms; the only draft- When you have completed your draft, read it care-
ing necessary will be to fill in the caption and the fully and make a systematic check for errors. This
names of the defendants to be served. should include at least the following:
1. A literacy check. Success in litigation depends in 2. Use shortened titles to avoid having to repeat
great measure on projecting a competent and cumbersome phrases. For example: “Plaintiff Al-
professional image; a complaint full of mis- pha Corporation and defendant Omega Com-
spelled words and grammatical errors sends a pany entered into a written agreement dated
powerful message that the drafter need not be April 1, 1995, entitled “Agreement for the Lease
taken as a serious threat. Use your word proces- of Certain Manufacturing Equipment” (here-
sor’s spell checker. Rewrite awkward passages. inafter referred to as the “Alpha-Omega Agree-
Watch for ambiguous use of personal pronouns. ment”). In subsequent paragraphs, you can
simply refer to the agreement as the “Alpha-
2. A facts check. Be sure you have alleged your
Omega Agreement” without having to repeat
facts accurately. Have your client read the com-
the lengthy title and date.
plaint, and verify the facts with your client. If
the complaint includes factual allegations that 3. Incorporate important documents by reference. If
you cannot yet back up with solid evidence, be the lawsuit is based on a contract, for example,
sure that you have made those allegations “on you can avoid much of the need for quoting or
information and belief.” paraphrasing the terms of the contract by sim-
ply attaching the document to the complaint
3. An elements check. Review your research notes
as an exhibit and incorporating it in the com-
and verify that you have included a count for
plaint by reference. When you incorporate a
each theory of liability and that no element of
document by reference, you make it, in effect a
any of your theories of liability has been inad-
part of the complaint itself. Typical language:
vertently omitted.
“Plaintiff Alpha Corporation and defendant
Omega Company entered into a written agree-
Step 13 File and Serve ment dated April 1, 1995, entitled “Agreement
for the Lease of Certain Manufacturing Equip-
ment” (hereinafter referred to as the “Alpha-
If you have followed Steps 1 through 12 carefully, Omega Agreement,” a copy of which is at-
you should now have a package ready for filing. It is tached hereto as Exhibit 1 and incorporated
commonplace for the actual filing to be done by a herein by reference).” Don’t forget to attach
messenger or by the process server who will serve the copy and label it as Exhibit 1. In general,
the complaint on the defendants, although anyone, only documents that are actually a part of the
including you, can go to the court and file the com- dispute (contracts, deeds, etc.) should be in-
plaint. After filing, the process server will deliver corporated by reference; do not attach docu-
the issued summonses and the conformed copies of ments that are merely evidentiary (police re-
the complaint to the various defendants. ports, doctor bills).
4. Do not overcapitalize. You are writing a com-
Your Local Notes plaint, not the Declaration of Independence.
The words “plaintiff” and “defendant” are not
_________________________________________________
capitalized unless they occur at the beginning
_________________________________________________ of a sentence. The same applies to words like
“petitioner,” “respondent,” “appellant,” “mov-
ing party,” and other similar designations. The
Some General Guidelines—Here are some general word “court” is capitalized only if you are re-
rules that may assist you when drafting pleadings. ferring to the particular court to which the
pleading is addressed.
1. Parties should be labeled as such throughout the
complaint wherever their names appear. You 5. Always be polite. Write in an educated tone;
would write “defendant Ronald Carson,” not avoid slang. Avoid statements about the
merely “Ronald Carson” (fails to apprise the character of opposing parties. Tempting as it
reader that Ronald Carson is a party) or “de- may be to refer to your opponent as a scur-
fendant” (ambiguous if there is more than one rilous, unprincipled, lying scoundrel, it is far
defendant). Some practitioners write the better and more persuasive to tell your
names of parties in capitals (i.e., “defendant client’s story convincingly and let the facts
RONALD CARSON”) to make it easier to pick speak for themselves.
out the allegations involving a particular per- 6. Avoid imagery and metaphor. You may be called
son. We suggest that you let local custom be on to prove each statement in the complaint,
your guide. so stick to the facts.
7. Write pleadings in the third person. Avoid the use rules of procedure, they have come to have precise
of personal pronouns, because they tend to meanings that cannot be expressed so exactly in ordi-
create ambiguity—refer to your client as nary language. Here are a few of the common ones:
“plaintiff John Doe,” or perhaps simply “plain- Upon information and belief: The party and the
tiff” if there is only one, but not as “he” or “she.” party’s attorney have reasonable grounds to be-
lieve a statement is true and do believe it is true, but
8. Write clearly and say exactly what you mean.
cannot prove it at this point. Example: “Upon infor-
Never use words whose meanings you do not
mation and belief, defendant John Doe is a resident
fully understand. Avoid using big words in the
of Dade County, Florida.”
General Allegations section; your purpose is to
At all times material hereto: The matter alleged
communicate and persuade, not to show off
was true during the entire time period that is in-
your vocabulary.
volved in the lawsuit. Example: “At all times material
Your Local Notes hereto, defendant Jane Doe was employed by defen-
dant Ajax Widget Corporation.”
_________________________________________________ Defendants and each of them: The fact alleged
_________________________________________________ is true for each defendant taken separately and with
respect to all the defendants taken together.
Incorporated by reference: The document re-
Pleading Vocabulary—In general, a simple, direct ferred to (typically a contract or other similar doc-
writing style is best. There are, however, a few phrases ument that is attached as an exhibit) is intended to
of “legalese” that are necessary when drafting plead- be treated as a part of the complaint, just as if its
ings because, either through long custom and usage contents had been copied word for word into the
or by virtue of being included in the wording of the complaint itself.
SIDEBAR
Unidentified Parties
You are about to sue Arnold Lush, the negligent Some (but by no means all—check the rules)
driver that backed his delivery truck into your client’s courts allow the designation of parties by fictitious
new Porsche, when you suddenly realize that you are names. Then the solution to the problem of Mrs. Lush
in a community property state, you think Arnold is is simple—you name Arnold Lush and Jane Doe Lush,
probably married, but you are not sure, and you cer- husband and wife, as defendants. The process server
tainly have no convenient way of finding out his wife’s finds Mrs. Lush and serves the complaint on her. Since
name. Furthermore, you are pretty sure that Arnold the complaint describes her as the wife of Arnold
was on the job when the accident happened, but you Lush, she has adequate notice of the suit and will
do not know who Arnold’s employer is. have to defend.
What do you do? A similar tactic can be used on the employer: “De-
It depends on the court. Obviously, you need to fendant Black Corporation was, at all times material
get the complaint filed against Arnold so you can take hereto, the employer of Arnold Lush. . . . ” The process
some discovery and find out the identities of Mrs. Lush server will probably not be able to serve the complaint
and Arnold’s employer. One option would be to leave on the employer without knowing its name, so it will
out all mention of Mrs. Lush and the employer, file the still be necessary to take discovery and amend the
complaint against Arnold, take discovery, and then complaint. But the amendment will consist merely of
amend the complaint to add the new parties. One substituting the right name, rather than adding new
drawback to this approach is that if Mrs. Lush and allegations. The original complaint can be made to
the employer can claim that they did not become tell the complete story, instead of having to leave out
aware of the suit until after the statute of limitations some of the major players.
ran, you may not be allowed to add them as parties. For the specific language used in suing fictitiously
Another is that, because of the delay in completing named defendants, see the sample complaint shown
the pleadings, it may take longer to get the case in Figure W5–2 later in this workshop.
scheduled for trial.
SIDEBAR SIDEBAR
Precision in Drafting Drafting Style
One way in which complaint drafting is differ- You will occasionally see complaints that begin
ent from other kinds of writing is the need for a with such quaint phraseology as “Comes now the
high degree of precision. It is not enough to write plaintiff, by and through his undersigned attorney,
allegations that can be interpreted to imply a cause and for his first cause of action against defendants,
of action; the complaint must actually state a cause alleges as follows. . . . ” Often, this grandiloquent
of action in unambiguous terms. When you draft a style is continued into the body of the complaint. In-
sentence in a complaint, ask yourself if it is capable stead of simply “defendant drove his car into the side
of any interpretation other than the one you in- of mine,” we read, “defendant did then and there
tend. If so, rewrite it. operate his motor vehicle in such manner. . . . ”
As you read the following allegation, try to Such pretentious prose is likely to impress no
identify the ambiguities: one and makes the complaint hard to read. It will
often be necessary for the judge to refer back to the
Defendant William Bernstein and his supervisor,
complaint in deciding motions; it is better to focus
defendant Roger Gordon, were employees of
defendant Haulrite Trucking Company. Defendant the judge’s time and attention on your most per-
was not trained as a truck driver and was not suasive arguments, rather than waste it slogging
qualified to drive large commercial trucks. through superfluous verbiage. Pleadings can also
be read to the jury during trial, by either side, so it
Answer: (1) The allegation does not say when is advisable not to couch allegations in ways that
defendants William Bernstein and Roger Gordon will sound pompous.
were employees. Haulrite can be held liable only if
As with most writing in litigation, an impor-
they were employees at the time of the accident.
tant goal of complaint drafting is to convince the
Obviously, this is what the drafter meant, but it is
reader of the rightness of your cause. This is best
not enough to mean it—you have to say it. (2) The
done by writing in a style that focuses the reader’s
second sentence is ambiguous: Which defendant
attention on the message, not on the words used.
was not trained? William? Roger? Both? Also, the
allegation needs to say that defendant was not
trained at the time that is in question in the law-
suit. This is a good place for the phrase “at all times guide your work, and try to make sure that you have
material hereto.” See the text discussion of plead- accomplished each one.
ing vocabulary. 1. Commencing the lawsuit.
2. Stating your claims in a way sufficient to avoid
dismissal.
Allegation: A statement in a pleading of some 3. Forcing your opponent to admit or deny key
fact or conclusion that the pleader claims is true; facts.
an assertion. 4. Telling your client’s story in a way that is per-
Including without limitation: Used when giving suasive to the reader.
a few examples, without raising an inference that
the examples given are the only ones that exist. If 5. Leaving sufficient flexibility that you have not
you merely allege, “Plaintiff received injuries, in- painted yourself into a corner if the facts de-
cluding a broken arm and a concussion,” there may velop in unexpected ways, and you are not
be an inference that these are the only injuries locked in on particular legal theories.
plaintiff received. If you substitute “including with- 6. Including the correct parties, and leaving flexi-
out limitation” (or the equivalent, “including but bility to add any other parties that you become
not limited to”) for the word “including,” this makes aware of later.
clear that there may be other injuries as well.
The Goals of Complaint Drafting—What, then, Your Local Notes

are the purposes of drafting a complaint? Here are _________________________________________________
some of the most important ones; you can probably
_________________________________________________
think of others. When you begin drafting, use this
list of purposes and goals as a kind of checklist to
Complaint Drafting: include in the suit any employees who themselves

engaged in actionable conduct. Arnie Trevayne
Learning By Example would be a defendant, except that at the time of fil-
ing suit, his role has not yet come to light. Share-
We now use our step-by-step instructions to draft a holders are not liable for the acts of a corporation
complaint on behalf of Shannon Martin. (with a few exceptions, as always)—in fact, one of
the main reasons for incorporating a business is to
PREPARATORY STEPS shield the shareholders from personal liability. Of-
ficers and directors can be liable if they partici-
pated in the wrongful conduct; in some situations,
Assemble the Basic
Step 1 Factual Information
they can also be held liable for negligence in per-
forming their supervisory duties. The potential li-
ability of all of these peripheral players involves
We will base our complaint on the facts described questions of substantive law. As a rule, when a suit
in our hypo, Shannon’s Ordeal, from Chapters 3 involves a corporate setting, you should sue the
through 8. Referring back to those chapters, we first corporation and the specific employee(s) whose
list the possible defendants. Obvious possible tar- conduct led to the suit, if known. You should not
gets are Dr. Collins, the hotel, the Las Vegas Police sue other employees, officers, directors, or share-
Department (for false arrest), and Shannon’s em- holders, unless you have done the research and
ployer (for wrongfully suspending Shannon from verified that a cause of action exists against them
her job). We will eliminate the last two, because the under substantive law.
claims that Shannon may have against the police For the moment, we will sue Park Hotels
department or her employer mainly involve facts Group and Dr. and Mrs. Collins. In a jurisdiction
that are distinct from the incident in the hotel—it is that allows fictitious defendants, we might in-
better to sue them separately, if at all. clude several “John Doe” defendants to cover the
If we sue Dr. Collins, we will want to include his negligent hotel employees that we expect to find
wife, assuming he has one, since Texas is a commu- during discovery.
nity property state. If we sue Dr. Collins without in-
cluding his wife, we risk ending up with a judgment
that might not be valid against the Collins’s com- Determine the Elements of
munity property, which probably comprises most
Step 2 the Claims You Intend to Raise
of the Collins’s assets.
To sue the hotel, we need to know what entity is What causes of action shall we assert against the
responsible for operating it. This information is of- hotel and Dr. Collins? The obvious ones are negli-
ten rather tricky to obtain. We begin by checking gence against the hotel and assault and/or battery
whatever materials we have available; hotel against Dr. Collins. To keep the example simple,
brochures, advertisements, or stationary may tell we will confine our example complaint to these.
us what we need to know. Failing that, we try gov- There are, of course, a number of other possibili-
ernment agencies: Is there a state agency that regu- ties, which we should by now have listed in our Is-
lates hotels? What do county real estate records sues Outline (see Workshop 1), researched, and
show about the ownership of the land that the ho- considered.
tel occupies? Do the records of the state depart- We see from our Issues Outline that the ele-
ment of corporations show any corporation with a ments of assault, as applied to our hypo, are
name similar to that of the hotel? It may take con- (1) an act by Dr. Collins; (2) intent by Dr. Collins
siderable investigative effort to determine whom to to cause harmful or offensive contact, or immi-
sue in a dispute that involves a large business con- nent apprehension (that is, fear) of harmful or of-
cern, and sometimes it is necessary to employ an in- fensive contact; and (3) causing Shannon to feel
vestigator who has access to a variety of informa- imminent apprehension of harmful or offensive
tion databases. contact. To this we add (4) damages proximately
After investigating, we find that Banbury Park caused by Dr. Collins’s wrongful conduct. The el-
Hotel is owned and operated by Park Hotels ements of battery are the same as those of as-
Group, a Delaware corporation, with its main office sault, except that the third element is now “actual
in New Jersey and hotels in a number of other harmful contact” instead of “apprehension of
states. We will sue the corporation; should we also harmful contact.”
sue any of its employees? Its stockholders? Its of- Since we have some doubt whether we will be
ficers or directors? In general, we probably would able to prove that Dr. Collins’s acts were intended
to harm Shannon, and since Dr. Collins may have a CONCLUDING STEPS
valid defense (self-defense), we will leave our-
selves some additional maneuvering room by also
including a negligence count against Dr. Collins. We Step 11 Prepare Accompanying Papers
will also, of course, sue the hotel for negligence. We
see from our issues outline that the elements of
negligence are (1) duty, (2) breach of that duty, We will need three original summonses, one each for
(3) causation, and (4) damages. Arthur Collins, Mrs. Collins, and Park Hotels Group.
We will need a copy of the complaint for each, plus
one for our file and one for our client; the clerk will
DRAFTING STEPS
keep the original. We need a check for the filing fee,
We now begin drafting, using Steps 3 through 10. and, checking the local rules for the federal district
The finished product is shown in Figure W5–2. court for the District of Arizona, an information sheet
Figure W5–2 Sample Complaint

DISTRICT OF ARIZONA

)
) NO. _____
Plaintiff, )
) COMPLAINT
v. )
)
corporation; )
)
Defendants. )
)
_______________________________________ )
Plaintiff alleges:
JURISDICTION AND PARTIES
1. Plaintiff Shannon Martin is a resident of Maricopa County, Arizona.

2. Defendants Arthur Collins and Jane Doe Collins are residents of Dallas County, Texas.
Defendant Jane Doe Collins is the wife of defendant Arthur Collins. At all times material hereto,
defendant Arthur Collins acted both individually and on behalf of the marital community consisting of
defendants Arthur Collins and Jane Doe Collins. Plaintiff does not know the true identity of defendant
Jane Doe Collins, and will seek leave to amend her complaint to reflect such true identity after
ascertaining it. Defendant Arthur Collins caused an act or event to occur in the state of Nevada out of
which plaintiff’s claims arose.
3. Defendant Park Hotels Group (hereinafter “Hotel”) is a corporation organized and existing
under the laws of the state of Delaware, and doing business in the state of Nevada out of which plaintiff’s
claim arose.
4. This Court has jurisdiction of this matter under the provisions of 28 U.S.C.§1332. The amount
in controversy is greater than $75,000.
Figure W5–2 Sample Complaint, continued
GENERAL ALLEGATIONS
5. On the night of February 5, 1996, plaintiff Shannon Martin was a paying guest at the Banbury Park
Hotel in Las Vegas, Nevada. The Banbury Park Hotel is owned and operated by defendant Park Hotels Group.
6. At approximately 1:15 A.M. on the morning of February 6, 1996, plaintiff Shannon Martin was
asleep in her hotel room at the Banbury Park Hotel. Prior to retiring, plaintiff closed and locked the door
of her room. Defendant Arthur Collins, a stranger to plaintiff, using a key provided by defendant Banbury
Park Hotel, entered plaintiff’s room, stood at the foot of plaintiff’s bed, and began removing his clothes.
7. Plaintiff reasonably believed that defendant Arthur Collins was attacking her. Using a .22 cal-
iber revolver which was lawfully in her possession, and acting in self-defense, plaintiff shot defendant
Arthur Collins. Defendant Arthur Collins then threw himself on top of plaintiff, incapacitating plaintiff,
and forcibly wrenched plaintiff’s revolver from her, breaking her finger.
8. Plaintiff suffered other physical injuries, including bruises and contusions, in addition to the
broken finger. Plaintiff experienced extreme fear and anxiety and continues to have nightmares and
panic attacks, requiring psychiatric care and medication. Plaintiff suffered the humiliation of being ar-
rested and held by the police for her act in defending herself. Due to her repeated panic attacks, plaintiff
was placed on extended leave from her employment as a sales representative for a computer software
company, causing plaintiff to lose income and jeopardizing the client base which she had worked several
years to build. Plaintiff incurred significant medical and psychiatric expenses for the treatment of her in-
juries. Plaintiff suffered these and other damages as a result of defendant Arthur Collins’s illegal entry
into plaintiff’s hotel room and his attack upon her.
9. Upon information and belief, defendant Hotel failed to act with reasonable care and was neg-
ligent in providing defendant Arthur Collins with a key to plaintiff’s hotel room. Defendant Hotel failed
to act with reasonable care and was negligent in maintaining the lock on the door of plaintiff’s hotel
room. Defendant Hotel’s negligence was a proximate cause of the attack on plaintiff by defendant
Arthur Collins and of the injuries suffered by plaintiff.
CAUSES OF ACTION
10. Plaintiff is entitled to recover damages from defendants and each of them based on the theo-
ries of liability hereinafter enumerated in Counts I through V, and under such other theories of liability as
may be appropriate based upon the facts as alleged herein or as revealed during discovery.
COUNT I—ASSAULT
(Against defendants Collins)
11. In committing the acts alleged herein, defendant Arthur Collins intended to cause plaintiff
imminent apprehension of harmful or offensive contact.
12. The acts of defendant Arthur Collins alleged herein caused plaintiff to feel imminent appre-
hension of harmful and offensive contact, and caused plaintiff reasonably to apprehend that defendant
Arthur Collins was about to attack plaintiff sexually.
13. As a proximate result of the conduct of defendant Arthur Collins alleged herein, plaintiff has
been damaged in an amount which plaintiff will prove.
COUNT II—BATTERY
14. In committing the acts alleged herein, defendant Arthur Collins contacted plaintiff’s person in
a harmful and offensive manner, including without limitation throwing himself on plaintiff after remov-
ing his clothing and breaking plaintiff’s finger.
COUNT III—NEGLIGENCE
16. Defendant Collins had a duty to plaintiff to act with reasonable care in confining his move-
ments to his own room and to the public areas of the hotel, and in behaving reasonably and with due
Figure W5–2 Sample Complaint, continued
care for other guests while on hotel premises. In engaging in the conduct alleged herein, defendant
Collins breached such duty and failed to act with reasonable care.
COUNT IV—NEGLIGENCE
(Against defendant Hotel)
18. Defendant Hotel had a duty to plaintiff to act with reasonable care in providing reasonably
safe lodging and in maintaining such lodging, and particularly the doors and locks thereof, in a
reasonable manner. Defendant Hotel failed to act with reasonable care toward plaintiff, and breached
such duty by, among other things, failing to maintain the door and lock of plaintiff’s room in a
reasonable manner so as to prevent unauthorized entry, and, upon information and belief, allowing
defendant Collins to gain possession of a key capable of operating the lock of plaintiff’s room.
COUNT V—PUNITIVE DAMAGES
(All defendants)
20. The conduct, acts, and omissions of defendants alleged herein were in part intentional and in
part evinced a reckless and callous disregard for plaintiff’s safety, were consciously malicious, and
displayed a conscious disregard for the unjustifiable substantial risk of significant harm to plaintiff.
21. Plaintiff is entitled to receive punitive damages.
WHEREFORE, plaintiff requests that the Court enter judgment in favor of plaintiff and against
defendants and each of them as follows:
1. For general and special damages in the amount of $750,000.00.

2. For punitive damages in an amount which plaintiff will prove.
3. For plaintiff’s reasonable costs incurred herein.
4. For such other and further relief as to the Court seems just in the premises.
DATED this ______day of ____________________, 2000.
SIMON & PORTER
Allen Porter
and arbitration certificate. The attorney for plaintiff that the average juror will find it incomprehensible.
(here, Allen Porter) signs the complaint; the clerk of Reviewing our notes from Step 2, we double-check
the court will sign and stamp the summonses. that we have alleged all the elements of each of our
theories of liability.
Check Accuracy and Make
Step 12 Revisions Step 13 File and Serve
Having written our draft, we check it for errors, then
ask Shannon Martin to read it and point out any al- In a typical law office, after a litigation paralegal
legations that may be factually inaccurate. This is drafts a complaint, he or she checks it carefully,
also a good opportunity to see whether our drafting then passes it to the responsible attorney for re-
is easily read and understood. If our own client has view and signature. When the attorney has signed,
trouble understanding a passage, we can be certain the paralegal assembles (or assigns a secretary to
assemble) a package having the required number of Figure W5–3 Checklist

copies of the complaint, summonses, and other
documents, in a form ready to give to the process I. Assemble basic factual
server or messenger for filing. information
II. Determine elements of claims
III. Prepare caption
Complaint Drafting: IV. Prepare preamble and set up
numbering systems
Learning by Doing V. Establish jurisdiction and identify
Your main task for this workshop is to draft a com- parties
plaint yourself. To do this, you need a fact situa- VI. Identify relationships among
tion. For most students, we suggest the following parties giving rise to liability
assignment: VII. State general allegations
VIII. Allege each element of cause of
You are a paralegal in the law office of Roger action
Yarborough, attorney for Dr. Arthur Collins. Assume
IX. Prepare prayer for relief
that Dr. Collins is a resident of your city, that
Banbury Park Hotel is located in another city in
X. Prepare date and signature lines
your state, and that Roger Yarborough practices in and verification
your city. Shannon Martin resides in Arizona, and XI. Prepare accompanying papers
Park Hotels Group, Inc., is incorporated in Delaware. XII. Check accuracy and make
After discussing the case with Allen Porter, revisions
Roger Yarborough realizes that Porter is about to XIII. File and serve complaint
file suit on Shannon’s behalf, naming Dr. Collins as
one of the defendants. Yarborough decides that he
would prefer to seize the initiative and file the suit
himself. He assigns you to draft a complaint on clude in your complaint, and briefly state why
behalf of Dr. Collins, for filing in the state superior you decided not to include each. (Usually, the
court (or county trial court) having jurisdiction in reason will be that some element is contra-
your locality. dicted or impossible to prove.)
5. (Steps 3 and 4) Prepare the caption and pre-
EXERCISES amble. If you have completed the workshop on
court papers, you can modify the caption you
prepared there as necessary to comply with
your local requirements for the caption of a
1. Review your notes, assemble the information complaint.
about the local requirements in your jurisdic-
6. (Steps 5 and 6) Draft the Jurisdiction and Par-
tion, and fill in the Figure W5–3 checklist.
ties section. Be sure to include jurisdictional al-
2. (Step 1) Decide who Dr. Collins should sue. legations sufficient for the court in which the
Assume that Shannon Martin’s marital status is complaint is to be filed.
unknown. Consider, with your instructor’s
7. (Step 7) Draft the General Allegations section.
guidance, whether your complaint should in-
clude fictitiously named parties. 8. (Steps 8, 9, and 10) Draft the Causes of Action
section and prayer for relief, and add appropri-
3. (Step 2) Decide what theories of liability to as-
ate date and signature lines.
sert and determine what their elements are. If
you have completed Workshop 1, Claims and 9. (Step 11) List exactly what accompanying pa-
Their Elements, you should be able to obtain pers will be needed, and how many copies of
most of the information that you will need from each. At your instructor’s option, obtain forms
the exercises in that workshop. If not, your infor and prepare summonses and information
structor may wish to assign you to research sheets if required in your jurisdiction.
one or more of the theories of liability. 10. (Step 12) Check your draft for accuracy. At
4. (Step 2, optional) If you completed Exercise 1 your instructor’s option, exchange your draft
from Workshop 1 and made a list of possible with another student who will assume the role
causes of action, now list all of the causes of ac- of Dr. Collins and review your draft from the
tion on that list that you have decided not to in- client’s point of view.
11. (Step 13) At your instructor’s option, visit the

Your Local Notes
office of the clerk of the court and observe how
a deputy clerk handles a newly filed complaint. _________________________________________________
While there, obtain a copy of the clerk’s fee _________________________________________________
schedule and any other informational brochures
or material that the clerk may have available.
SIDEBAR
Local Details Complaint Form and Filing Requirements
Form and Format: (see also Workshop 4, Court Papers) Other required papers
Paper size, line spacing, and margins Discovery permitted with complaint
Caption—special requirements Particular pleading matters
Layout and paragraph numbering Spouses of defendants
Prayer for relief Fictitiously named parties
Date and signature line format Preferred practice re:
Other local customs Specifying dollar amounts in damages
Verification requirements, if any allegations
Other papers required with complaint for filing Specifying dollar amounts in prayer for relief
Summons—local form Form allegation for punitive damages
Filing fee amount, acceptable modes Procedure for jury trial demand
of payment
PRACTICE POINTERS
Locating Attorneys and Court Files
Sometimes you may find it helpful when drafting a complaint or when

preparing other documents to have a model on which to base your work. Sup-
pose you read about a case that is very similar to yours. How could you locate
the attorney who litigated the case, assuming the article or case decision you
read included his name?
You could begin by contacting the attorney’s law office and talk to the at-
torney or his staff about the case. But how would you get the telephone num-
ber? If the article or decision you were reading gave the name of the city and
state in which the attorney was practicing, you could look in Martindale-
Hubbell, which provides a compilation of the names of attorneys, their areas
of practice, and personal data, including phone number, fax number, address,
e-mail address, and web site.
Alternatively, if you knew the trial court in which the litigation occurred,
you could use the court’s indexing system to pull the court file. Going to the
court clerk’s office, you could ask for the plaintiff or defendant’s index and look
under the plaintiff’s or defendant’s name. In this file you might find, in addition
to information about the disposition of the matter, a gold mine of information,
including pleadings, copies of interrogatories, requests for production, and
various motions that might be well researched and well written. If the case
were recent enough, you might even be able to use the jury instructions to as-
sist in drafting jury instructions for your case. After reviewing the file, you
could make copies of exemplary documents. If the case were particularly in-
structive, you would want to ask the attorneys or their staff questions or ask
to see their files. Remember that “imitation is the sincerest form of flattery.”
If the case had been appealed but the decision was not published, you could
contact the appellate court and find out how to get a copy of the decision. At
the clerk of the appellate court’s office you would look in an index similar to that
used by the trial courts. In addition to reviewing the documents listed above,
you might want to look at briefs to take advantage of the research done in
preparing them. You might also look for transcripts of oral arguments, which
might, on request of the clerk’s office, be available on audio tape.
TECHNO TIP
Many students have problems setting not to use the tab key to set the right-
up the caption due to the general use hand boundary of the caption for the
of right-hand parentheses that set the party’s names. If you use the tab key,
party’s name apart from the case num- when you input the names, the paren-
ber and title of the document. While theses will move to the right. If you use
the use of parentheses is almost univer- the space bar to set the boundary, and
sal, most court rules make no mention input the party's name with the over-
of the need for them. strike (insert) function on, the bound-
If you set up your new form using ary will not move as you type in the
a template rather than a blank file that data. More sophisticated users can set
you later recopy you can avoid many up forms that automatically ask for, and
problems. You should also make sure insert, the party’s names.
FORMS FILE
In your forms file, include as many samples of complaints as you

can find that your instructor or legal mentor believes exemplify good
complaints. Try to get copies of complaints that represent a number of
different areas of the law, for example, personal injury, contract, work-
ers’ compensation, domestic relations, real estate, criminal, probate,
and bankruptcy. Include samples that show spouses of defendants, fic-
titiously named defendants, allegations of punitive damages, and re-
quests for a jury trial.
Also, print a list of the format requirements for complaints as dictated
by your local rules, including paper size, line spacing, margins, special
caption requirements, date and signature line format, the preferred prac-
tices for pleading damages, layout, and paragraph numbering. Include
also the appropriate filing fees and any other required items, such as in-
formation sheets or arbitration statements.
KEY TERMS
General damages Special damages

Serving
the Complaint
WORKSHOP
6
INTRODUCTION: RATIONALE Your Local Notes
BEHIND SERVICE OF COMPLAINTS
_________________________________________________
Lawsuits are made mostly of paper. A paper (the
_________________________________________________
complaint) starts the lawsuit; the opposing litigants
fire numerous other papers at each other as the suit
progresses. As we will see in Workshop 7, most of
these papers are delivered informally, either by or- HOW TO SERVE A SUMMONS
dinary mail or by messenger. They are delivered not AND COMPLAINT
to the party, but to the attorney of record for the
party; see FRCP, Rule 5. A lawsuit begins at the instant that plaintiff files a
The summons and complaint are a different complaint with the clerk of the court; see FRCP,
matter, and covered by a separate rule; see FRCP, Rule 3. As a practical matter, however, merely filing
Rule 4. Ordinary mail does not suffice for serving the complaint does not, by itself, set the wheels of
the summons and complaint; the requirements of the lawsuit in motion. If you file a complaint and do
Rule 4 are much more demanding than that, and nothing else, the lawsuit will likely sit unnoticed in
there are good reasons for insisting on formality: the clerk’s file for some period of time [120 days in
When we serve a summons and complaint on some- federal court; see FRCP, Rule 4(m)], and eventually
one, we want to be sure we get their undivided at- be dismissed automatically for failure to prosecute.
tention—we do not want our lawsuit mistaken for Nothing will happen unless you make it happen.
junk mail! The U.S. Supreme Court has ruled that a The lawsuit begins in earnest only when the
person being sued is entitled to be notified of that complaint is served. A defendant’s obligation to re-
fact by the best means possible under the circum- spond to the suit begins only when plaintiff has
stances. It would be fundamentally unfair to allow a properly served the complaint on that defendant.
lawsuit to proceed and judgment to be taken Until then, defendant is unlikely to be aware that
against someone who has not even been made suit has even been filed (and would be perfectly free
aware that there is a suit. Therefore, as we saw in to ignore it even if she has become aware of the law-
Workshop 2, proper service of the complaint is a ju- suit in some other way).
risdictional requirement, without which the court How must we deliver the summons and com-
has no power to enter a binding judgment. plaint? What, specifically, do we have to do? The an-
Because the defendant has no attorney of swer depends on the circumstances. The traditional,
record in the suit at the time the complaint is filed, and most common, way of serving a summons and
the summons and complaint must be served on the complaint is personal service. Personal service
defendant himself, rather than on the attorney rep- means having someone (usually a process server;
resenting defendant. You might suppose that serv- see sidebar) locate each defendant, approach them
ing a complaint would be a simple enough task, and in person, and physically hand the papers to them.
if the defendant is an individual who resides locally, As simple as this may seem in theory, it is not al-
often it is. But in many lawsuits, at least some of the ways simple in practice. What if defendant is a cor-
defendants are entities—defendant X may be a corporation, for example? How do you physically hand
poration, or a partnership, trust, estate, govern- papers to a corporation? (Can you suggest some
ment agency, or any of a number of other kinds of ar- ways in which you might do this?) What if you are
tificial targets. Or defendant may be located in some suing the United States government—would you
other state or country. Then what? As we will see, have to deliver papers to the president? What if de-
FRCP, Rule 4 provides a variety of options. fendant is a juvenile or someone who is mentally in-
In this workshop, we explore the details of for- capacitated? What if defendant is living in another
mal service—the type used for summonses and state or, worse, a foreign country? What if defen-
complaints, as prescribed by FRCP, Rule 4. Then, in dant, anticipating your lawsuit, has gone into hid-
Workshop 7, we will learn about routine service of ing? These are only a few of the problems that can
other court papers under FRCP, Rule 5, and address arise. (Can you think of others?)
the important subject of deadlines and how to com- In most courts, therefore, you will find that
pute them. there are a number of approved ways to serve the
306 WORKSHOP 6 Serving the Complaint
summons and complaint, each designed for some have been filed for each defendant named in the law-
specific situation. Usually, you will have to look in suit. If any are missing, a notice will be sent to plain-
more than one place to find them all. In federal court, tiff’s attorney, stating that the suit will be dismissed
the place to begin is FRCP, Rule 4, which offers a as to the defendants not served unless plaintiff
menu of alternatives for most of the commonplace shows good cause for the failure. If plaintiff’s attorney
situations. Rule 4 then refers you to other sources. convinces the court that there is a good reason why
When serving individual defendants (live human be- more time is needed (i.e., defendant is hiding) the
ings), for example, Rule 4 allows you to serve the court will extend the deadline. If plaintiff’s attorney
summons and complaint in any way that would be al- does nothing, or fails to persuade the judge that more
lowed in the state courts of the state in which the dis- time is warranted, the court will order the unserved
trict court sits or the state in which the service is to defendants dismissed from the suit.
take place. Therefore, even in federal court, you must The dismissal, if any, is without prejudice. This
also consider the state court rule corresponding to means that plaintiff is free to refile the complaint and
Rule 4 (your instructor will tell you where to find it). try again. In practice, however, refiling does not usu-
ally repair all of the damage. First, the lawsuit is now
Your Local Notes fragmented—instead of a single lawsuit against all
_________________________________________________
defendants, you have two lawsuits: the original one
against the defendants whom you did succeed in
_________________________________________________ serving, and a new one against the defendant whom
you are still trying to serve. Perhaps you can find
some way to combine them back into a single lawsuit
A number of statutes, both federal and state, also before trial, and perhaps not; either way, the proce-
provide for service of the summons and complaint in dural complexity of the situation has multiplied con-
particular types of cases. Most states, for example, siderably and you will not get the whole case to trial
have adopted statutes giving procedures for serving or judgment as soon as you otherwise would have.
a lawsuit on an out-of-state motorist who causes an Second, and most important, statutes of limitations
accident within the state. Statutes regulating various may have expired in the time since the lawsuit was
specialty fields (securities, taxes, etc.) also often in- first filed; some or all of your causes of action against
clude provisions allowing process to be served in a the dismissed defendant may now be time barred.
particular way. You cannot expect to be aware of all The validity of service is measured one defen-
such enactments, so whenever you find yourself in a dant at a time. Service on defendant A does not ob-
situation for which FRCP, Rule 4, and its state law ligate defendant B to appear and defend, even if de-
counterparts do not give adequate guidance, re- fendant B is (for example) married to defendant A
searching the statutes may prove worthwhile. and hears all about the suit that evening at dinner.
Our objective in serving the summons and com- What happens, then, if we are simply unable to
plaint is simple: we want to force defendant to file serve one of the defendants? Usually, we are free to
an answer to the suit. If defendant does not file an proceed against all of the other defendants whom
answer (or other allowed pleading) after being we have succeeded in serving (unless the judge de-
properly served, we can carry out other procedures termines the missing defendant to be an “indispens-
to obtain a judgment by default. In other words, we able party” under FRCP, Rule 19, which involves
will (barring other problems) win the lawsuit then complexities beyond the scope of this text).
and there because of defendant’s failure to respond. Whether the suit will still be worth pursuing with
What happens if we make a mistake in serving defendants missing is a more complex question and
the summons and complaint? There are several pos- depends on the circumstances. Certainly, we will
sibilities. First, suppose we simply drop the ball and have fewer targets from which to collect the judg-
fail to have one of the defendants served. In federal ment if we win. Nor will we be able to obtain discov-
court, after 120 days, the court, “upon motion or on ery from the unserved defendants. (If we cannot
its own initiative after notice to the plaintiff, shall dis- serve the summons and complaint, it is unlikely we
miss the action without prejudice as to that defen- would be able to serve a subpoena.) Worse, in some
dant”; see FRCP, Rule 4(m). In practice, what hap- states, if two defendants are jointly liable for an in-
pens is this: The clerk of the court keeps track of jury, and we are able to serve only one of them, we
which defendants have been served in each pending will not be able to recover full damages because the
lawsuit. (The clerk can easily do this because, as we defendant whom we have served is required to pay
will see, a court paper called a return of service must only his fair share of the damages, not the share at-
be filed each time a defendant is served.) Once 120 tributable to the other defendant. (Your instructor
days have passed from the filing of the complaint, will inform you whether your state has a “joint and
the clerk will check to see whether returns of service several liability” statute.)
WORKSHOP 6 Serving the Complaint 307
Your Local Notes Your Local Notes

_________________________________________________ _________________________________________________
_________________________________________________ _________________________________________________
Suppose, instead of a clear-cut failure to serve

defendant X, there is something about the way in
Serving the Complaint:
which you served the summons and complaint that Step-by-Step Instructions
gives defendant X an argument that the service did
not comply with the rules. Then what? Defendant We analyze the problem of serving the summons
has several options. and complaint in our usual step-by-step fashion. As
First, if defendant is extremely confident that before, the steps we suggest are not the only possi-
the service was defective, she can ignore the suit ble ones; they are intended to provide a systematic
and do nothing. Without proper service, the court framework to help you make practical choices
has no jurisdiction over the person of defendant among the various options. In the discussion to fol-
(see Workshop 2) and any judgment would be void. low, we have tried to describe the task of serving the
The problem with this option—and the reason why summons and complaint in terms of the way a para-
no lawyer is likely to recommend it—is that if de- legal in a litigation office would actually deal with it,
fendant does nothing, the court is likely to issue a rather than in abstract terms suitable for a treatise
default judgment, void or not. Plaintiff will then try on procedure. In a law office, the goal is not to serve
to use the void judgment to seize defendant’s prop- process in the most elegant way; it is to get the job
erty. To prevent that, defendant will have to con- done quickly, efficiently, and with the least expendi-
vince a court that she was never properly served ture of lawyer and paralegal time. This dictates our
with the suit that led to the judgment. If the court overall strategy:
is not persuaded, defendant has lost her property, Begin with the simplest and easiest ways of
without any opportunity to defend the suit on the accomplishing service, apply them to as many
merits. defendants as possible, then proceed to the next
A less hazardous option is to file a motion to dis- easiest, and so on, until all defendants have been
miss or to quash service; see FRCP, Rule 12(b)(5). If served.
the judge agrees that the method of service used
was improper in some way, the most likely result
Obtain Necessary Copies
will be an order quashing, or nullifying, the service. Step 1 of the Papers to Be Served
The parties are left in the same position they would
have been in had service not been made at all on the
defendant in question. Then what? Plaintiff will sim- Service of process is a formal way of delivering pa-
ply send out the process server and try again. pers; to accomplish it, you must have the right pa-
Therefore, there is usually little for defendants to pers to deliver. What, exactly, has to be delivered?
gain by attacking service of process, except in un- Two things are required in every case: (1) a sum-
usual circumstances. (Can you think of any circum- mons and (2) a copy of the complaint; see FRCP,
stances in which defendant would benefit by forcing Rule 4(c)(1).
plaintiff to reserve?) Any other court papers that are filed at the
This brings us to the final option, which is to ig- same time as the complaint are served with it. This
nore the defect in service and simply file an an- is necessary because FRCP, Rule 5(a) requires all
swer. A defendant is always free to appear volun- filed court papers subsequent to the complaint to
tarily in a lawsuit—defects in service can always be be served on every party. Because no defendants
waived. (A defendant cannot cure a defect in sub- have appeared or filed answers yet, service on the
ject matter jurisdiction, if there is one, by appear- attorneys by mail under FRCP, Rule 5(b), is not an
ing or waiving service, but that is a separate issue; option; therefore, any papers filed with the com-
see Workshop 2.) If defendant concludes that a law- plaint must be served in accordance with Rule 4.
suit is inevitable, and plaintiff’s choice of forum is What other papers might be filed and served
acceptable, and especially if it is obvious that with the complaint? For one example, local rules in
plaintiff will be able to serve process on defendant some jurisdictions require the filing of a separate pa-
sooner or later, there may be little attraction to the per stating whether or not the case is subject to
prospect of spending time and money arguing compulsory arbitration. For another, it is permissi-
about service. ble in some state courts to issue discovery requests,
such as interrogatories and requests for production and gives the stack of copies back to the messenger
of documents, at the time the complaint is filed. [In or process server. The process server should now
federal court, discovery requests are generally not have one copy of the complaint, one original sum-
permitted until the time for filing disclosure state- mons, and one copy of each other paper being
ments has expired; see FRCP, Rules 30(a)(2)(c), served for each defendant. (Even though the sum-
33(a), and 34(b).] monses are photocopies, each is considered an
original because each has been signed and stamped
Your Local Notes by the clerk of the court.)
As we will see shortly, in certain situations (i.e.,
_________________________________________________
registered mail service) the delivery of the sum-
_________________________________________________ mons and complaint to a given defendant will be
arranged by plaintiff’s attorney, rather than made
by a process server. The messenger or process
The summons is a court order directing each server will obtain the clerk’s stamp and signature
defendant to “appear and defend” the lawsuit. As on the copies of the summons and complaint corre-
usual in litigation, the court does not supply the sponding to any such defendants and return them
summons; it is up to plaintiff’s lawyer to prepare it. to plaintiff’s attorney.
Most of the boilerplate language of a summons is
the same from case to case, so summonses are usu- Your Local Notes
ally prepared using preprinted or word-processor
forms, to which it is necessary to add only the cap- _________________________________________________
tion of the case and the name(s) of the defendant(s) _________________________________________________
being served. The summons is not official until it is
signed and stamped by the clerk of the court; see
FRCP, Rule 4(a).
Step 1 is complete when there is a properly is-
In practice, the usual sequence of events is this:
sued summons and a copy of the complaint for each
Someone in the office of plaintiff’s attorney (often a
defendant to be served.
paralegal) prepares a summons listing each of the
defendants by name. (Another way is to prepare
separate summonses, each listing one defendant; For Each Defendant, Decide
Step 2 Whether a Waiver of Service
let local custom be your guide.) A sufficient number
of photocopies of both the summons and the com- Should Be Sought
plaint are made to provide one for each defendant,
plus copies for the client and the case file. To this The absolutely easiest way to accomplish service is
stack of copies is added the original complaint for to avoid having to do it at all. There is an alternative
filing, the check for the filing fee, a memo providing to formal service of process: The defendant can vol-
information to the process server on how to locate untarily accept service of the summons and com-
the various defendants (many process servers have plaint or, equivalently, waive service. To waive a
forms for this), and any other papers (see Step 11 of right means to voluntarily and knowingly give up
Workshop 5) to be filed with the complaint. The en- that right. Every defendant in a lawsuit has a right
tire package is then taken to the clerk’s office and to insist that the summons and complaint be served
presented for filing. in accordance with the rules; any defendant is free
Who presents the complaint for filing? Usually to waive the right, relieving plaintiff of the necessity
not a lawyer or paralegal—no need to waste expen- of making formal service.
sive legal talent on what is essentially a clerical task. The federal rules seek to encourage waivers of
Some law firms use a messenger, who takes the pa- service by providing an incentive. Under FRCP, Rule
pers to the clerk’s office, waits for the clerk to accept 4(d), plaintiff may make a written request to any de-
and stamp them, and then turns them over to the fendant for a waiver of service. [FRCP, Rule 4(d),
process server. Other firms have regular accounts prescribes in detail how the request is to be made.]
with process serving firms that make regular daily Defendants who accept are rewarded with addi-
pickups at each law office and perform the filing tional time in which to answer the complaint; those
tasks at the clerk’s office as a part of their service. who refuse are charged with the expenses incurred
Assuming all is in order, the clerk accepts and by plaintiff in making formal service on them. State
files the complaint, stamps and signs the sum- courts may not have specific rules governing ac-
monses, stamps the case number on the copies of ceptance of service, but parties are nonetheless
the complaint and any other papers to be served, free to do it if they can agree.
In some situations, waiver of service makes perwork. An important part of this task is to keep
good sense for both sides. Most commonly, these track of the status of the request, making sure that
involve disputes in which the parties are already the waiver is actually signed, returned, and filed
represented by lawyers and have attempted to ne- within a reasonable time, so that formal service can
gotiate a solution, but failed. The inevitability of a be ordered if it appears that defendant is stalling.
lawsuit is obvious to all concerned, and it is in
everyone’s interest simply to get on with it. (Di- Your Local Notes
vorce cases often fall in this category.) By waiving
service, defendant avoids the potential embarrass- _________________________________________________
ment of being served at work or in public; plaintiff _________________________________________________
avoids having to pay a process server; and both
parties may avoid whatever delay formal service
would entail.
In more adversarial situations, however, plain- Assign Local Individual
tiff may well conclude that the disadvantages of Step 3 Defendants and Corporations
seeking a waiver of service outweigh the benefits. to a Process Server for Routine
By asking for a waiver, plaintiff gives up any possi- Personal Service
bility of surprise, giving a defendant who is inclined
to avoid service plenty of time to hide. Further- If a waiver is not feasible, the next easiest way to
more, if defendant’s attorney does agree to waive accomplish service is to assign a process server to
service, the necessary paperwork may be returned make personal service—“easiest” because the
only after days or weeks of “telephone tag” and at a process server does most of the work, so very lit-
cost of additional concessions such as extended tle input from expensive lawyers or paralegals is
time in which to file an answer. Compared to the required.
real costs of litigating (the attorney’s fees), the cost Our purpose in this step is to weed out the de-
of service is trivial, and, when in doubt, most plain- fendants who can readily be served in this way. In-
tiff’s attorneys would choose simply to send out a dividual defendants who reside locally fall into this
process server. category. So do corporations with a local presence,
The procedure for waiving service begins with that is, those which are either incorporated in your
a request by plaintiff’s attorney to defendant or, state or have done the required paperwork to qual-
more commonly, to defendant’s attorney. In federal ify to do business in your state.
court, the request may be a formal one under FRCP, These are not, of course, the only categories of
Rule 4(d), in which case it must be made in strict defendants for which personal service by a process
compliance with the requirements of FRCP, Rule server is appropriate. In general, however, once we
4(d)(2). Or the request may be an informal one, of- move beyond local individuals and corporations,
ten beginning with a telephone call by plaintiff’s at- we will be confronting additional complications,
torney to defendant’s attorney asking whether the such as uncertainties in determining which human
latter would like to accept service on his client’s be- being to deliver the papers to, difficulties in locat-
half. If agreed to, the acceptance or waiver of ser- ing the defendant, and legal complexities requiring
vice is typically a court paper with the usual cap- additional paperwork. We address some of these
tion and formal parts, with a body consisting of a more challenging situations in Step 4.
sentence or two reciting that “defendant X waives
formal service of the summons and complaint and Personal Service on Individuals—You probably
accepts service thereof,” or words to that effect. already have a mental image of what personal ser-
The paper must be signed by defendant or defen- vice entails: An anonymous stranger rings defendant
dant’s attorney, and is filed with the court. The ef- John Smith’s doorbell at six in the morning (most
fect is exactly the same as if the summons and com- people are home at six in the morning), intones the
plaint had been formally served. The due date of time-honored phrase “Mr. John Smith? I have some
the answer is computed from the date of the waiver, papers for you,” and hands the summons and com-
unless otherwise agreed (an extension of the dead- plaint to the rudely awakened defendant (or drops
line for answering is a common quid pro quo for them on the ground if he refuses to take them).
agreeing to accept service). That is personal service, in its most basic form.
Your supervising attorney will decide which, if FRCP, Rule 4(e)(2), authorizes you to serve individ-
any, defendants should be asked to waive service, ual defendants in this way. To use it, you need a live
and may make the initial contact to request it. As a human being to hand the papers to, and the process
paralegal, you may be assigned to complete the pa- server must be able to find him.
Abode Service—Suppose you are trying to serve would reflect personal service of one copy on Jane
an individual defendant (a live human being) who and abode service of another copy on John. A re-
seems to be impossible to find at home. Must you turn of service showing only personal service on
pay your process server to stake out the place in Jane would not obligate John to file an answer. This
the hope of catching defendant sneaking out to walk may seem an overly picky distinction, but keep in
Fido at three in the morning? mind that if the issue of the sufficiency of service on
One option, of course, is to serve the summons John should have to be decided by the judge, the
somewhere else. You are not restricted to serving only thing the judge will be interested in is whether
defendants at home—you are perfectly free to the record—the return of service—reflects that
catch them at work, while shopping, or even while John was properly served.
delivering an important speech to a gathering of vis- A final point: In federal court, and under most
iting dignitaries. Nevertheless, it is usually easier to state court formulations, abode service can be
find people at their residential addresses than it is made only on individual defendants; see FRCP, Rule
to find them at work, where they may be closeted 4(e)(2). As we will see shortly, when we serve
deep in some large complex that requires a security process on corporations and other entities, we are
pass to enter. usually delivering the papers to some human being
Bowing to the practicalities, nearly all courts al- who acts as an agent or representative of the entity.
low what is called abode service. Abode service is Can we take the next step and serve the corporation
accomplished by leaving a copy of the summons by delivering the summons and complaint to “a per-
and complaint at defendant’s “usual place of abode son of suitable age and discretion” at the represen-
with some person of suitable age and discretion tative’s abode? No, the representative is not the de-
then residing therein”; see FRCP, Rule 4(e)(2). In fendant, and the corporation is not an individual.
other words, instead of being required to hand the
papers to defendant herself, the process server can Your Local Notes
hand them to whoever answers the door at defen-
_________________________________________________
dant’s house, assuming that person is “of suitable
age and discretion” and “then residing therein.” _________________________________________________
As you might imagine, abode service provides
fertile ground for disputes. “Of suitable age and dis-
cretion”—what age is that? (A fact question de- Personal Service on an Agent—An agent is a
pending on the circumstances; older teenagers are person who has the legal authority to act for some-
usually safe, but small children do not qualify.) one else. (The person for whom the agent is acting
What does “then living therein” mean? Does a live- is called the principal.) Here is a simple example:
in maid qualify? (Yes, but a maid who works in de- Suppose you are going on a long trip in a foreign
fendant’s residence every day but lives elsewhere country, and you want your trusted friend Joe to be
does not, and it may not be easy for a process able to access your bank account in case you run
server to tell the difference.) What about a teenage short and need some money wired to you. You sign
daughter who lives with defendant every other a “special power of attorney,” a paper authorizing
week under a joint custody arrangement? (Could go Joe to enter transactions on your behalf at the bank.
either way.) By doing so, you have made Joe your agent, thereby
We have already said that serving process on conferring on Joe the legal authority to act in your
defendant A does not obligate defendant B to ap- place. Joe’s acts will be legally binding on you just as
pear and defend. Is abode service an exception to if you had done them yourself. If Joe withdraws your
this? No, and herein lies an important distinction. money and loses it in Las Vegas, you will have no
Suppose you have sued John Doe and Jane Doe, complaint coming against the bank, because, legally,
husband and wife. The process server shows up at Joe’s act in withdrawing the money was your act.
the Doe residence and rings the doorbell, and Jane Authority means the power of an agent to act in
Doe answers. John Doe is away on a business trip. If the name of the principal. An agent can be given
the process server hands the summons and com- very broad authority, and authorized to do virtually
plaint to Jane, does that not also constitute abode anything that the principal could do (as with a gen-
service on John? eral power of attorney); or, the agent’s power can be
Not necessarily. Certainly, the process server expressly limited, giving the agent authority to do
can serve both John and Jane at once, but to do so only certain things (such as, in the preceding exam-
he would hand Jane two summonses—one ad- ple, access a single bank account). The sum total of
dressed to John and one addressed to Jane—and all the powers given to the agent by the principal is
two copies of the complaint. The return of service referred to as the agent’s scope of authority. We will
not delve into the details of how agents are ap- corporation, to do all the things reasonably neces-
pointed or the paperwork and other formalities in- sary in running a business, including defending
volved; those are subjects for another course. How- lawsuits. The president of a corporation is consid-
ever, keep in mind that there will often be no formal ered to have implied authority to receive service of
written appointment, nor are such documents nec- the summons and complaint when the corporation
essarily made public even when they exist. is sued. Certain other officers of the corporation are
An agency can be created for almost any con- also deemed to have implied authority to receive
ceivable purpose, including receiving service of service of process. That is why, under the federal
process. You can appoint someone else as your rules as well as the rules of most state courts, ser-
agent with authority to receive service of a summons vice of the summons and complaint can be made on
and complaint on your behalf. If you do so, then a a corporation by delivering the papers to “an offi-
process server could serve a lawsuit on you by de- cer, a managing or general agent, or to any other
livering the summons and complaint to your agent. agent authorized by appointment or by law to re-
Why, you may be wondering, would you want to ceive service of process . . . ,” FRCP, Rule 4(h).
appoint an agent and make it easier for someone It is not necessarily easy to be sure who quali-
else to sue you? One reason may be that you are en- fies as an officer or a managing or general agent for
tering into a contract with someone who wants to purposes of FRCP, Rule 4, and the equivalent state
be sure they can get you into court if a dispute court rules. High officers such as the president,
arises, so they insist on appointment of an agent as CEO, the secretary of the corporation (a corporate
part of the deal. Or the appointment may be re- office, not the kind of secretary who types and
quired by law, as we are about to see. files), and the treasurer clearly have authority to re-
ceive service. Determining whether a given lower
Your Local Notes level officer qualifies may require some legal re-
search. Fortunately, it is usually not necessary to
_________________________________________________
chase down corporate presidents, because there is
_________________________________________________ an easier way to serve process on corporations.
One of the usual requirements that a corpora-
tion must meet when filing incorporation papers is
Serving Process on Corporations—Personal to appoint an agent to receive service of process.
service requires physical delivery of the summons Most states also require out-of-state corporations
and complaint to defendant in person. How would to appoint an agent to receive service before doing
you physically deliver papers to an entity such as, business in the state. You can easily get the name
say, General Motors Corporation? “Who” exactly is and address of a corporation’s appointed agent by
General Motors anyway? Is it the buildings? The fac- calling the state agency that regulates corpora-
tories? The workers? The board of directors? The tions. (Your instructor will tell you what the agency
stockholders? is called in your state; Corporations Commission
Although General Motors may be all of those and Department of Corporations are two of the
things and more, it is not practical to serve process common names.) Therefore, serving process on a
on a building. The purpose of serving process is to corporation is usually as simple as making one
give notice, and simply leaving the summons and phone call to get the name and address of the agent
complaint somewhere in a building or factory is not and instructing your process server to deliver the
very likely to bring the lawsuit to the attention of papers there.
anyone who would be in a position to respond to it.
Therefore, the law takes the view that a corporation Your Local Notes
acts only through its agents (and employees, who are _________________________________________________
a specialized kind of agent). If you want to serve a
summons and complaint on a corporation, you must _________________________________________________
deliver the papers to an agent of the corporation
who has authority to receive them.
In general, the law assumes that an agent who is Your Role as Paralegal—Your task as a paralegal
appointed to do a specific thing has the implied au- will be to give instructions to the process server; to
thority to act for the principal in whatever ways are assist the process server with more information if
reasonably necessary to accomplish what the agent difficulties arise when serving any of the defen-
was appointed for. The president of a corporation is dants; and to keep track of which defendants have
appointed to run the business of the corporation; and have not been served so that problem situa-
therefore, he has the authority, as an agent of the tions are recognized and dealt with.
An established litigation office will already have address in question is an apartment building, and
an account with a process server or process server the manager has never heard of Joe Schmoe. Joe
firm. Either the process server firm or your own law was, of course, driving a borrowed car.
firm will likely have a printed form for you to fill out Now you will have to do some detective work.
with your instructions for service. For individual Perhaps you can locate Joe by contacting the
defendants, it is usually sufficient to provide a name owner of the car he was driving or by contacting
and residence address; nevertheless, it is best to in- Joe’s insurance company if he had insurance and
clude whatever information you have about defen- the police took down the information. Or perhaps
dant’s identity and whereabouts. Work locations you can find an address for Joe in a telephone book
are helpful, as are telephone numbers. Social Secu- or city directory, or in a computerized telephone
rity numbers are particularly useful in tracking directory covering the entire United States (avail-
down individual defendants; a process server with able in many libraries), or by searching the Inter-
access to the usual array of computerized informa- net. Failing that, you will probably have to hire a
tion sources can generally locate anyone from a So- private investigator or a process server who is ex-
cial Security number as long as the person is pre- perienced in skip-tracing to locate Joe.
sent somewhere in the United States. A physical Suppose you eventually discover that Joe moved
description or some other means of identification out of his apartment at 333 Main Street a year before
may also be needed, especially if the defendant has the accident and took up residence in another state;
a common name—otherwise you may find that you he was on vacation visiting friends when the acci-
served the wrong “John Smith.” dent occurred. How can you serve the summons and
For corporation defendants, you must tell the complaint on him? There are several options:
process server where and to whom to deliver the Personal or abode service in another state: In
summons and complaint. The process server may federal court, as long as Joe is within a judicial dis-
be able to assist you in obtaining the name and ad- trict of the United States (i.e., located in one of the
dress of the corporation’s designated agent for ser- fifty states or in the District of Columbia, Guam,
vice of process, but it is up to you (with guidance Puerto Rico, or the U.S. Virgin Islands), FRCP, Rule
from your supervising attorney) to decide to whom 4(e)(2), allows you to serve the summons and com-
the papers should be delivered, and instruct the plaint by “delivering . . . to the individual person-
process server accordingly. ally” or by abode service. State court rules also typ-
ically allow personal service on defendants located
Decide How to Serve in other states. (This assumes, of course, that there
Step 4 Nonroutine Defendants is a basis for personal jurisdiction over the out-of-
state defendant; here, Joe has caused an act or
At this point, we have obtained whatever waivers event to occur in the forum state. See Workshop 2.)
we could, and sent the process server out to serve How do you arrange for out-of-state personal ser-
all of the defendants who are either locally resident vice? Many process server firms have offices in other
individuals or corporations that have appointed lo- states or correspondent arrangements with process
cal agents to receive service. In many lawsuits, we servers in other states. One of these full-service
will find that we have now accounted for all defen- process server firms can usually arrange for per-
dants and we can proceed directly to Step 5. sonal service in any state. Or, you can make arrange-
Not all defendants in all lawsuits are so accom- ments directly with a process server in the other
modating, however. We must be prepared to deal state. In federal court, because there are no special
with some of the more challenging situations. These licensing requirements for process servers [see
include individual defendants who are geographi- FRCP, Rule 4(c)(2)], you can, if necessary, send some-
cally distant or hard to find, corporations that have one to Joe’s home state to make service. Another op-
no local designated agent, entities other than cor- tion is to contact the sheriff’s office for the county in
porations, and governmental agencies and officers. which defendant is to be served (usually a last resort
because of the paperwork and delay involved).
Serving Individuals the Hard Way—Sooner or Service by mail: State court rules typically allow
later, you will find yourself looking for an individual service of the summons and complaint on out-of-
defendant for whom you can find no local address. state defendants by registered or certified mail. In
Here is one common scenario: Your client was in- federal court, service on individuals [FRCP, Rule
jured in an automobile accident. Your only informa- 4(e)(1)] may be made by any means allowable un-
tion regarding the identity of the other driver is der the laws of either the state in which the suit is
what appears on the police investigative report: Joe filed or the state in which service is to be made.
Schmoe, 333 Main Street. One small problem—the Therefore, you can serve the summons and com-
plaint by mail in either federal or state court, fol- some slight cost savings, but the money saved, if
lowing the procedures prescribed in your state any, is usually far outweighed by the attorney and
court rules. paralegal time wasted on the additional paperwork.
To serve a summons and complaint by mail, Moreover, as we will see, the number of days within
you first mail the papers to defendant using the which defendant must respond to the complaint de-
class of mail prescribed by your state court rules— pends on the manner in which the summons and
usually registered or certified, with a return receipt. complaint were served. If you use methods of ser-
The return receipt is a postcard with your return vice other than personal service, defendant will
address on it, which is attached to your envelope. have a longer period in which to file an answer.
The post office will deliver the letter only after the
addressee signs the return receipt; the return re- Your Local Notes
ceipt is then mailed back to you, furnishing proof
_________________________________________________
that the letter was actually received. After you re-
ceive the return receipt, you prepare and file an af- _________________________________________________
fidavit reciting the circumstances making mail ser-
vice appropriate (i.e., defendant is located in
another state); that you mailed the summons and Serving Corporations with No Local Agent—
complaint addressed to the defendant as pre- Sometimes it is necessary to sue a corporation that
scribed by the rule; and that you received the re- is neither incorporated in your state nor has filed
turn receipt back with defendant’s signature on it. the necessary papers to qualify to do business in
The affidavit serves as a return of service; that is, it your state. When you call your state’s department of
provides a record in the court’s file showing that corporations to obtain the name and address of XYZ
service was made. Corporation’s designated agent for service of
As a practical matter, mail service is essentially process, you are told that they have no record on
useless against a defendant who is determined to XYZ Corporation.
resist. The reason lies in the requirement that the When this happens, your first impulse should be
return receipt be signed by defendant. Defendant to review carefully whether the courts located in
can easily defeat service simply by refusing to sign, your state would have personal jurisdiction over XYZ
in which case the post office will return the enve- Corporation. If it is true that XYZ Corporation does
lope to you undelivered. not do any business in your state, it may be difficult
Nonresident motorist statutes: Motor vehicle ac- to convince a judge that it caused an act or event to
cidents involving vacationing tourists and out-of- occur there. Recall that, for the court to have juris-
state truckers are a sufficiently common occurrence diction of the person of a defendant, there must be
that state legislatures have adopted statutes to fa- both proper service of process and minimum con-
cilitate service of process. Typically, these provide tacts with the forum state (see Workshop 2). At a min-
that any nonresident, by the act of operating a mo- imum, some legal research is probably in order.
tor vehicle in the state, automatically appoints some If you conclude that the court would have per-
designated state official as an agent to receive ser- sonal jurisdiction, the easiest way to obtain service
vice of process in any lawsuit arising from that act. is usually to find out what state XYZ Corporation is
So, in accident lawsuits against out-of-state drivers, incorporated in, telephone the department of cor-
one option is to serve the summons and complaint porations of that state, and obtain the name and ad-
on the designated state official. (Your instructor will dress of the corporation’s agent for service of
give you the citation for the nonresident motorist process as shown in their records. The agent will, of
statute in your state.) course, be located in the state of incorporation, but
For such service to be valid, you must follow you can arrange for the summons and complaint to
the procedure set out in the statute exactly— be served there in the same way as you would with
“close” does not count. The drawbacks are the an out-of-state individual.
same as with registered mail service: The statutory This is not the only possible way to obtain ser-
procedure typically requires you to send copies to vice on XYZ Corporation. If XYZ has qualified to do
defendant by registered or certified mail and to pro- business in any states other than its state of incor-
duce a return receipt signed by defendant. poration, you can likely serve a designated agent in
In a modern litigation office, by far the preferred one of those states, if more convenient. If you can lo-
way of serving process on out-of-state defendants is cate one of XYZ’s officers or managing agents, you
to employ a process server firm with connections in can serve the summons and complaint on them. In
the target state. Alternatives such as county sher- practice, however, your goal is to accomplish ser-
iffs and registered mail service may seem to offer vice quickly, by a method whose validity cannot be
disputed, and with a minimum expenditure of at- does not specifically authorize serving a partner, it
torney or paralegal time, and serving a designated does allow service “in the manner prescribed by
agent is usually the method of choice. [FRCP, Rule 4(e)(1)],” which allows service in ac-
cordance with applicable state court rules; state
Your Local Notes court rules typically do allow service on a partner.]
Second, to be sure that you will be able to reach
_________________________________________________
the assets of the individual partners if you win the
_________________________________________________ suit, name each partner as a defendant and serve
each in the usual way.
Limited partnerships and limited liability com-
Serving Other Entities—A corporation is one ex- panies: Limited partnerships and limited liability
ample of an entity type of defendant. (Recall that an companies (LLCs) are both legislative creations
entity is an artificial person or organization which that are designed to combine the advantages of a
the law treats as having its own existence.) You can corporation (the shareholders cannot be sued for
undoubtedly think of many other kinds of entities, the corporation’s sins) with the tax planning flexi-
and you may even find it necessary to sue one. Here bility of a partnership. LLCs are (to oversimplify a
are a few of the more common entities: bit) corporations that are taxed like partnerships;
Partnerships: A partnership is an association of you serve process on an LLC in the same way as for
two or more persons who join together in some a partnership. Limited partnerships are partner-
common business endeavor. As a business entity, ships in which some of the partners (called limited
the operation of a partnership is generally similar to partners) cannot be sued for the partnership’s lia-
that of a corporation; the income tax treatment of a bilities. You serve process on a limited partnership
partnership, however, is quite different. in the same way as for an ordinary partnership, ex-
Suing a partnership is inherently more compli- cept that you do not name the limited partners as
cated than suing a corporation. If you win a lawsuit defendants or serve process on them.
against a corporation, you get a judgment against Estates and trusts: A probate estate is an artifi-
the corporation, which you can collect only from cial entity that the law creates to receive and dis-
the corporation’s assets. A judgment against a cor- pose of the assets of someone who dies. The person
poration does not entitle you to collect from the cor- who died is called the decedent. The person in
poration’s shareholders. This insulation of the own- charge of a probate estate is variously called the ex-
ers (the shareholders) from liability is one of the ecutor, the administrator, or the personal repre-
main reasons for forming a corporation. sentative—all three terms mean essentially the
General partners of a partnership, on the other same thing (we use the latter). Sometimes it is nec-
hand, are personally liable for the obligations of the essary to sue a probate estate. Perhaps, for exam-
partnership. Therefore, when suing a partnership, ple, the decedent (before dying, of course) caused
you can potentially get judgment not only against the an accident in which others were injured. Or per-
partnership itself as an entity, but also against each haps the assets of the estate include a business that
of the general partners. To do so, of course, you must has become involved in some dispute. Whenever
name each partner as a defendant and serve the sum- you are preparing a suit against someone and you
mons and complaint on each one. It may sometimes discover that the defendant has died, you will have
require considerable research and detective work to sue the defendant’s estate.
just to arrive at a list of all the partners. The manner in which a probate estate can sue
Furthermore, it is possible to create a partner- and be sued is dictated by the probate laws of each
ship without leaving much of a paper trail. Unlike cor- state. Commonly, to bring suit against an estate, you
porations, which cannot exist unless the proper pa- sue—and serve process on—the personal represen-
pers are filed with the proper state agency, any two or tative. However, extra restrictions may exist on suits
more people can create a partnership without filing against a personal representative; check the pro-
anything anywhere. And even if an agent to receive bate statutes for your locality. In particular, the pro-
service of process has been appointed, you will not bate laws are designed to allow the affairs of the
be able to find out about it with one phone call. decedent to be wrapped up quickly, so statutes of
As a practical matter, therefore, the usual way to limitation and other time limits may be shortened.
serve process in a suit against a partnership is this: To sue a decedent’s estate, you need a properly
First, to bring the partnership as an entity into the appointed personal representative to name as de-
suit, serve the copy of the summons addressed to fendant. A personal representative must be ap-
the partnership, with a copy of the complaint, on pointed by the probate court; even if decedent’s
any general partner. [Although FRCP, Rule 4(h), last will names someone as personal representa-
tive, that person does not actually become one un- office for the district in which the action is filed, and
til the probate court appoints him or her (or “it”— send a copy by certified or registered mail to the
corporations such as banks are often appointed as U.S. attorney general in Washington, D.C., and an-
personal representatives). You can find out other to the agency being sued, and another to any
whether probate has been filed and a personal rep- other agency or officer whose order is being chal-
resentative appointed by checking the court lenged in the suit.
records at the office of the clerk of whatever court Whenever you are handling a suit in which
handles probate matters. there appear to be potential claims against govern-
What if there is no properly appointed personal mental defendants, you should research thoroughly
representative? What if no probate has been filed? the procedural requirements for doing so, or con-
Here, the situation gets more complicated, and you sult with a colleague who has experience in similar
will have to research your options. Most likely, you suits, or both.
will have to apply in probate court and ask for a per-
sonal representative to be appointed.
Your Local Notes
A trust is an entity in which one person (called
the grantor or trustor) transfers property to an- _________________________________________________
other person (called the trustee) with instructions _________________________________________________
to use the property for some specified purpose.
Trusts are often used in estate planning as a tool for
keeping property under professional management
(by the trustee), particularly when the heirs are too Track Status of Pending
young to be entrusted with it. Any kind of property Step 5 Service Assignments
can be conveyed into trust, including real estate
and going businesses, so it is sometimes necessary Having arranged for service on all defendants, your
to be able to sue a trust. This is done by naming the next job—and it is an important one—is to make
trustee as a defendant; the summons and complaint sure that service is completed as planned. FRCP,
are served on the trustee. Rule 4(m), requires you to serve all defendants
within 120 days after filing the complaint. If you fail
Your Local Notes to do so, the court must dismiss the suit (albeit
without prejudice) unless you can show good cause
_________________________________________________
for the failure.
_________________________________________________ Excuses like “the process server lost the file” or
“I forgot to check whether the return receipt came
back” are unlikely to be deemed “good cause.” The
Governmental Officers and Agencies—To begin only way to avoid such lapses is to approach the
a suit against a government agency or officer, problem systematically: Keep a calendar, and when-
whether federal, state, or local, there are often a num- ever you initiate the steps to have someone served,
ber of hoops to be jumped through, of which serving post a reminder a week or so in the future to check
process correctly is only one. Often there are statutes whether the service was actually completed.
requiring you to make written demand or give written
notice of the amount and nature of the claim before
Check That Service
filing suit. Special, shorter statutes of limitations may Step 6 was Completed Correctly
apply. Individual government officers are usually im-
mune from personal liability for their acts while on
As service is completed on each defendant, review
duty, and can be named as defendants only in their of-
the manner in which it was accomplished to verify
ficial capacity. Suits against state governments in fed-
that your instructions were followed and that ser-
eral court are severely restricted by the 11th Amend-
vice was validly made.
ment to the U.S. Constitution.
FRCP, Rule 4, gives directions for serving the
summons and complaint on federal agencies and of- File Appropriate Return
ficers [FRCP, Rule 4(i)] and on foreign, state, or local
Step 7 of Service
governments [FRCP, Rule 4(j)]. The procedure for
serving federal agencies illustrates the kind of pro- It is not enough merely to serve each defendant—
cedural hurdles that are commonplace in litigation the judge must be able to look in the court file and
against the government: You must serve a copy of verify that service was completed. Therefore, you
the summons and complaint on the U.S. attorney’s must file a return of service (also sometimes
called a proof of service or affidavit of service); spond, you compute and calendar the due date for
see FRCP, Rule 4(l). A return of service is a court the response so that you can take appropriate ac-
paper reflecting the time and manner in which sertion if it does not appear when due.
vice was made.
When service is assigned to a process server,
the process server provides the return of service. Your Local Notes
For modes of service that involve registered mail _________________________________________________
delivery, it is up to the attorney or paralegal to pre-
_________________________________________________
pare a suitable affidavit, reciting the specific mat-
ters required by the rule. As usual, the easiest way
to prepare such affidavits is to begin with a form, ei-
ther a preprinted or word-processor form, or an af-
fidavit submitted in some other case.
Returns of service are filed with the clerk of the
court. Unlike most other documents filed with the
clerk, returns of service are typically not mailed to Learning by Example
the opposing attorneys (you will usually not know
who the opposing attorneys are until each defen- We now apply our step-by-step instructions to the
dant files an answer). problem of serving the summons and complaint by
Shannon against Dr. Collins, Mrs. Collins, and Park
Hotels Group, Inc.
Your Local Notes
_________________________________________________
_________________________________________________
Obtain Necessary Copies
Step 1 of the Papers to Be Served
Step 8 Docket Answer Due Date

We have the complaint which we prepared in Work-
shop 5. We will need the following:
The rules require each defendant to file either an an-
■ Two original summonses, one directed to Dr.
swer or a motion to dismiss within a specified num-
and Mrs. Collins, and another directed to
ber of days after service of the complaint. Any de-
Park Hotels Group, Inc.;
fendant who fails to do so is in default, and plaintiff
can begin procedures to obtain a default judgment. ■ Original and five copies of the complaint in
(Recall that a default judgment is not automatic; addition to the original (original to be filed,
plaintiff must take the required steps.) one copy to be served on each defendant, one
The normal time allowed for responding to a copy for our file, and one copy for our client)
complaint in federal court is 20 days from the date ■ Copies of the summonses for our file, and for
of service; see FRCP, Rule 12(a). Other time periods our client;
may apply in suits against the government [see ■ A check for the filing fee; and
FRCP, Rule 12(a)(3)] and in certain other situations.
■ A cover sheet and any other papers required
Check the particular rule or statute for the mode of
by the rules of the court in which we are filing.
service used to see if a different response time is
specified. All of these papers must be taken to the filing win-
When you file each return of service, you com- dow at the office of the clerk of the court and pre-
pute the date on which the answer will be due and sented for filing. None of the defendants we will be
docket it on the office calendar. How? As usual, serving are local. If our firm has an arrangement for
there are rules governing the computation of due regular pickups by a process server, we may leave
dates, and, as usual, it is not always obvious how the the papers with the process server with instruc-
rules should be applied. We will study the art and tions to file the complaint and bring back the issued
science of computing and calendaring due dates in summonses and copies. Or we may instruct a sec-
much more detail in Workshop 7. For our present retary or messenger to take the papers to the
purposes, the point is that whenever you serve any clerk’s office for filing and return with the sum-
court paper to which an opposing party must re- monses and copies of the complaint.
For Each Defendant, Decide Hotels has appointed an agent to receive service of
Step 2 Whether a Waiver of Service process in Arizona. If so, we can obtain the name
Should Be Sought and address of the agent over the telephone and in-
struct a process server to serve the agent.
Our hypo highlights still another potential drawback
to seeking a waiver of service: When we contact the
Decide How to Serve
defendants to request the waiver, we are both sig- Step 4 Nonroutine Defendants
naling our intent regarding choice of forum and giv-
ing them a chance to win the race to the courthouse
by filing suit in some other court. In our hypo, Allen In our hypo, we would arrive at this step only if we
Porter decided to contact Dr. Collins’s attorney, discover that Park Hotels has not appointed an
Roger Yarborough, who consented to suit in Arizona agent to receive service of process in Arizona. In
federal court; in doing so, Porter risked that Yarbor- that case, we would have several options.
ough might have responded with the time-honored One would be to send a process server to Park
response “I’ll think about it and get back to you” and, Hotels Group’s Arizona hotel with instructions to
having thought about it for several seconds, imme- find and serve a director or managing agent. The
diately filed suit against Shannon in Nevada. drawback to this option is that we have no assur-
Yarborough’s waiver having been already ance that such a person could readily be found.
agreed to via an informal telephone contact, it is not Worse, if the process server did find someone to
necessary to follow the procedures specified in serve, we would likely be left with at least some un-
FRCP, Rule 4(d). A simple court paper, acknowledg- certainty about whether the person really was a di-
ing the waiver and signed by Dr. Collins, is suffi- rector or managing agent.
cient. (Ordinarily, it is also sufficient if defendant’s Better, instead, to telephone the department of
attorney signs the waiver.) Here, however, the ques- corporations in Delaware, the state of incorpora-
tion would arise whether Yarborough has been ad- tion of Park Hotels Group, Inc. and obtain the name
mitted to practice before the U.S. District Court for and address of the corporation’s agent in Delaware.
the District of Arizona; if not, he could not validly Our local process server firm can probably arrange
sign a filed pleading. All U.S. district courts have es- for service to be made on the agent in Delaware; if
tablished procedures in their local rules whereby not, we can look up a Delaware process server in
out-of-state attorneys can be admitted to practice the Delaware Yellow Pages and make service
before them, and Yarborough will have to comply arrangements by telephone.
with these procedures before he can act for Dr.
Collins in this lawsuit. Meanwhile, he may retain an
Track Status of Pending
Arizona attorney to act as local counsel so as to Step 5 Service Assignments
have someone available who can sign pleadings.
As for Park Hotels, there is little to be gained by
requesting a waiver, from Shannon’s standpoint. A In a litigation practice, all verbal understandings
corporation that has large fixed assets in the state with opposing lawyers should be confirmed in writ-
(such as a hotel) is almost certain to have regis- ing immediately. When Roger Yarborough, Dr.
tered with the Corporation Commission and desig- Collins’s attorney, agrees to waive service of
nated an agent for service of process, and so will process, Allen Porter immediately sends a confirm-
not be difficult or expensive to serve. Requesting a ing letter reciting the agreement and enclosing the
waiver may actually be more expensive than serv- necessary waiver forms. Such letters are a common
ing process, taking into account the attorney and part of litigation office routine; see Figure W6–1 for
paralegal time required to make the contacts and an example.
handle the paperwork. When the letter is sent, a calendar notation
should be made to check in a week or two and be
Assign Local Individual sure the signed waiver has been received. If it has
Step 3 Defendants and Corporations not, a follow-up letter will be sent reminding Roger
to a Process Server for Yarborough to sign and return the waiver.
Routine Personal Service Similarly, a calendar notation should be made
when the process server is instructed to serve Park
Since Park Hotels Group, Inc., operates a hotel in Hotels. If the process server has not sent back a re-
Arizona, our first step is to telephone the Arizona turn of service within a reasonable time—a few
Corporation Commission to find out whether Park days, if local, or a week or two if out of state—then
Figure W6–1 Confirmation of Waiver Letter
SIMON & PORTER

(602) 555-4321
September 9, 2000

500 Main Street
Dallas, Texas
Re: Martin v. Collins
Dear Roger:
This will confirm our telephone conversation of this afternoon, in which you have agreed to appear
on behalf of your client, Dr. Arthur Collins, in the above-referenced lawsuit and to waive formal service
of the summons and complaint. We have agreed that the due date for Dr. Collins to file a responsive
pleading will be October 18, 2000. Thank you for your professional courtesy in this regard.
A copy of the summons and complaint are enclosed, together with a waiver of service. Please sign
and return the latter to me for filing.
Sincerely,
Allen Porter
we will follow up with a telephone call to the process

server to determine whether there is some problem
Step 8 Docket Answer Due Date
that needs our attention. We will continue to moni-
tor the status of all pending service tasks and check Under FRCP, Rule 12, Dr. Collins' answer would be
on them every few days until they are completed. due when? The answer is not entirely predictable.
Technically, the waiver request was not made pur-
suant to FRCP, Rule 4(d), so the time allowed for an-
Check that Service
Step 6 was Completed Correctly swering should be 20 days after service is complete.
However, FRCP, Rule 12, provides a longer period of
time (60 or 90 days) if the waiver is deemed to be a
Review the return of service form for Park Hotels
FRCP, Rule 4(d), waiver—an interpretation that,
Group, Inc. to ensure that your instructions were
though unlikely and probably wrong, is not impossi-
followed and that the form is dated appropriately.
ble. Moreover, when is service complete? Is it com-
plete on the date when Roger Yarborough signs the
File Appropriate Return waiver? The date when Allen Porter files it with the
Step 7 of Service court?
Allen Porter and Roger Yarborough, both experi-
In the case of Dr. Collins, we will not need to file a re- enced litigators, have better things to do than get
turn of service; we will file the waiver instead. For into disputes over such trivia. Therefore, when
the service on Park Hotels Group, Inc., the process Yarborough agrees to waive service, they simply
server will provide the return of service after ser- agree on an answer due date, and include it in the
vice has been completed. The process server may filed waiver. This due date must be docketed in the of-
file the original with the court and send us a copy fice calendars of both firms—in Yarborough’s, so
for our file, or may send us the original, in which that he will not forget to file the answer on time (or
case we would keep a copy and send the original to seek another extension, if necessary); in Porter’s, so
the clerk’s office for filing. that steps can be taken to enter a default if no answer
is filed. (As a matter of legal etiquette, however,

SIDEBAR where counsel have already conferred and agreed to
one extension, Porter would not enter a default with-
Professional Courtesy out first speaking to Yarborough again and verifying
that the failure to answer was deliberate. If the failure
It is sometimes physically impossible for defen-
were merely an oversight on Yarborough’s part,
dant’s attorney to file an answer within 20 days af-
Porter would give him additional time to file.)
ter the complaint is served, especially if the client
Park Hotels Group, Inc., must file an answer
waits until the nineteenth day before seeing an at-
within 20 days after service is made; see FRCP, Rule
torney! What then?
12(a). The 20 days are counted from the day on
One thing that defendant’s attorney (or para- which the papers are delivered, not the day on which
legal) must never do is to ignore the problem and the return of service is filed. In this, as in many such
hope that plaintiff’s attorney will not notice if the situations, Porter has no idea who will be represent-
answer is a few days late—to do so is to invite a ing this defendant, so he has no way of getting in con-
malpractice suit. Instead, the usual practice is to tact with defendant’s attorney. As a practical matter,
ask plaintiff’s attorney for an extension. what will most likely happen is that Porter will re-
In most localities, there are well-developed cus- ceive a telephone call from Park Hotels’ attorney
toms governing the asking and granting of exten- sometime before the 20 days are up, and an extended
sions and other favors between opposing attor- answer due date will be agreed on (in which case the
neys. These customs, known as professional new due date will be docketed on the office calen-
courtesy, harken back to the days when lawyers dar). If Porter does not hear from some other lawyer
were expected to be gentlemen and behave ac- representing Park Hotels by the time the 20 days are
cordingly. If an attorney were asked for a reason- up, he will immediately enter the default.
able accommodation by a brother lawyer, it would
be granted as a matter of course—to refuse would
be “ungentlemanly.”
Extensions of deadlines are still routinely
granted in most localities, out of pure self-interest if Learning By Doing
for no other reason. An attorney who refuses a rea-
sonable extension request can expect to have his
own “feet held to the fire” the first time he needs an EXERCISES
extension. What is reasonable? Local custom dic-
tates—your instructor will inform you of the usual In carrying out this assignment, you should follow
practice in your locality. the step-by-step formula described in this workshop.
One way in which modern practice differs from 1. (Step 1) Obtain a form for summons as used in
the days of “gentleman lawyers” is in the docu- a federal or state court in your locality (your in-
menting of extensions when they are given. No structor will specify which one). Use the form to
longer is it acceptable simply to rely on another prepare a summons to be used with the com-
lawyer’s word without confirming the extension in plaint that you drafted in Workshop 5. Take your
writing. In some courts, the rules require any exten- summons and complaint to the office of the clerk
sion to be reduced to a written stipulation, signed of the court; at the deputy clerk’s desk, explain
by both attorneys and filed with the court. In oth- that you are a paralegal student and ask the
ers, it is sufficient for one of the lawyers to send the deputy clerk to walk you through the steps that
other a confirming letter. Again, your instructor will the clerk would follow in filing the complaint and
inform you of the practice in your locality. issuing the summons. Ask the deputy clerk to tell
What if plaintiff’s attorney refuses to grant an
you about any common mistakes that she sees in
extension? Must defendant’s attorney refuse the
lawsuit filings. Take notes on what you are told,
representation or risk a default? No; the alternative
and prepare a one-page summary of your experi-
is to ask the court for an order extending the dead-
ence to be turned in for credit.
line. The judge has the authority to extend most of 2. [Step 2 and FRCP, Rule 4(d)] Assume that
the deadlines provided for in the rules. Never as- you are a paralegal in the office of Roger
sume that the judge will do so, however—the dead- Yarborough, who has just filed suit on behalf
line is the deadline until the judge has actually or- of Dr. Arthur Collins against Shannon Martin
dered it extended. in the U.S. District Court for the district that
encompasses your locality. You are assigned
to prepare an FRCP, Rule 4(d), request for Find out what agency regulates corporations in
waiver of service by Shannon Martin, and a your state, and telephone that agency to obtain
suitable cover letter addressed to Allen the name and address of the agent appointed to
Porter, for Mr. Yarborough’s signature. receive service of process by the corporation
that you are “suing.” Prepare a service instruc-
3. (Step 3) At random from the telephone direc-
tions form for the process server using the infor-
tory, choose one individual living in your locality
mation that you obtained.
and one corporation that you know does busi-
ness in your locality. (Optionally, your instructor 4. (Step 6) Prepare a suitable return of service
may provide this information.) Contact a for the pretend service you prepared in the
process server and explain that you are a para- preceding exercise. Assume that the individ-
legal student, and obtain copies of the service in- ual was served at the address that you gave in
structions form preferred by that process server. the service instructions, and that the corpo-
(Hint: A great way to contact a process server is ration was served by delivering a copy of the
to go to the office of the clerk of the court toward summons and complaint to the agent whose
the end of the day. Usually there will be a number name and address you obtained. You may in-
of process servers standing in line waiting to file vent the date and time of service and other
papers, and since they are stuck standing in line necessary facts.
anyway, they won’t mind talking to you and giv- 5. (Step 4) Do research at the law library to find
ing you the benefit of their advice and experi- out the procedure for registered mail service
ence.) Pretend that you are suing the individual under the rules of your local state court. Make
and the corporation that you chose in your local a list of the required steps. Obtain or prepare a
state court, and obtain the information neces- sample form for the return of service.
sary to complete the service instructions form.
PRACTICE POINTERS
Client Communications
The primary culprit behind many malpractice claims is a breakdown in com-

munication between client and attorney. Poor client relations is probably the sin-
gle most important factor contributing to these claims. In fact, the most common
complaint registered against attorneys, according to most state bar organizations,
is lack of communication. The failure of lawyers to communicate with their clients
has resulted in so many disciplinary and civil complaints that the American Bar
Association’s Model Rules of Professional Conduct now include Rule 1.4, which re-
quires clients to be kept “reasonably informed about the status” of their case.
One simple way attorneys can keep clients informed is to send them
copies of everything that is done in their case. When the complaint is filed, a
conformed copy should be sent to the client; when summonses are mailed to
defendants, copies of those summonses should be delivered to the client;
when responses are received from the opposition, copies of those responses
should be mailed to the client. In this way clients are immediately aware of the
shifts and turns their case is taking and they have an ongoing sense of the sta-
tus of their case. They are then less resistant to observations and suggestions
made by counsel and they feel more connected to their cause of action. With-
out such efforts at communication, clients have a tendency to feel they have
lost “ownership” of their case and begin to feel as if the attorney/firm is work-
ing against them instead of on their behalf.
Therefore, the simple act of keeping clients apprised as to the current sta-
tus of their case and making them aware of the strengths and weaknesses of
their case can minimize exposure to malpractice claims. Additionally, regular
communication helps create realistic expectations on the part of the client and
reassures the client that his case is important to the firm.
TECHNO TIP
As you have seen, a licensed process else to do so. If the person to be served
server is not required to serve process in is a statutory agent, check your corpo-
federal court. Most states do require ration commission’s database to see if a
that process be served by approved or change of address has been filed. If ac-
licensed individuals. Sheriff’s deputies cess is possible, a good place to start is
are often given the right to serve the driver’s license bureau of your state.
process by virtue of their office. Costs Privacy concerns often result in not be-
can occur when you do not have a curing able to obtain an individual’s driver’s
rent address for the person or entity to license data, including an address, with-
be served. The process server, although out a written request being filed. You
not usually the sheriff’s deputy, will at- can still check the telephone company’s
tempt to locate the person to be served, database for new information. Reverse
for an additional fee. The procedure, of- telephone books can be accessed so
ten referred to as skip-tracing, can be that if you know the telephone number
expensive. Before you send process out of someone you can find the person’s
for service, check to make sure the ad- name and address. The county
dress is correct. If it is not use the Inter- recorder’s office and the secretary of
net for a quick check on a person’s cur- state’s database can also help find
rent address before paying someone “missing” persons.
FORMS FILE
Make a list of the papers that must be included when filing a com-
plaint in your jurisdiction. Write down the process that must be fol-
lowed in serving process on a corporation as well as the method of
identifying the agent appointed to receive service. Also, write out the
process you must follow in serving an out-of-state defendant either per-
sonally or by mail and in serving a government agency.
KEY TERMS
Abode service Grantor Professional courtesy

Administrator Implied authority Trustee
Agent Personal representative Trustor
Decedent Principal Waive
Executor Probate estate
Paper Flow in a
Litigation Office:
Service, Docketing,
and Deadlines
WORKSHOP
7
INTRODUCTION: THE DEVIL time-sensitive moves and countermoves. Court pa-
IS IN THE DETAILS pers of various kinds flow into the office in the morn-
ing mail (and throughout the day by messenger and
In this workshop, you will learn about the rules that fax). These are processed, often by paralegals, to de-
govern the flow of lawsuit paperwork: how incoming termine what kind of response is required, dead-
papers are received, how outgoing papers are deliv- lines are computed, they are calendared appropri-
ered, how deadlines are computed, and how proper ately, and then each incoming paper is passed to the
office systems can be used to prevent costly mis- attorney or paralegal responsible for the case to
takes. These subjects may seem trivial, but they are which it pertains. The smooth operation of all this
not: Many a lawsuit has been lost over what paper processing is absolutely critical to a success-
amounts to paper-handling errors. ful litigation practice. Any law office, large or small,
When plaintiff serves a complaint on defendant that fails to approach the task carefully and system-
to begin a lawsuit, a clock starts running. Defendant atically will sooner or later have some important pa-
has a fixed number of days in which to file and serve per fall through a crack, and find itself on the re-
an answer. Defendant’s attorney must do several ceiving end of a malpractice suit.
things: (1) Consult the rules of procedure and deter- Usually, the event that sets the clock running
mine exactly how many days defendant has (the an- and triggers the need for action is the service of
swer depends on the circumstances); (2) compute some paper. Many different papers are generated in
the deadline date, which is the last day on which the the course of a lawsuit, and most require a response
answer can be filed and still be considered “on time”; of some kind within a specified number of days after
(3) record the deadline in the office calendaring sys- service. Recall that service means the delivery of a
tem so that appropriate reminders will be generated; court paper in the manner prescribed by the rules.
(4) prepare the answer before the deadline; and What kinds of papers have to be served on op-
(5) file the answer and serve it on the opposing party posing parties? How is this delivery accomplished?
in the correct manner. A mistake anywhere along the To whom is the paper delivered? In what manner is
way may cause a default to be entered against de- it delivered? For most papers generated after the
fendant, leading to a series of other consequences— lawsuit is under way, the answers to these questions
none of which is likely to be career enhancing. are simple: Every paper filed with the court must be
This sequence is repeated over and over in the served on all parties, and this is done by sending a
course of a lawsuit. One party files something (a mo- copy of the paper to the attorney for each party, by
tion, a notice, a discovery paper) and serves it on ordinary mail; see FRCP, Rule 5.
the opposing party; the rules of procedure allow the
opposing party a fixed time in which to respond. Your Local Notes
The response may itself trigger some action, setting
up an entire chain of actions and responses. _________________________________________________
Each step in the sequence must be carried out _________________________________________________
correctly. A complaint that is not served exactly in
accordance with the rules may be treated as if it were
not served at all—even if the opposing party clearly
HOW TO SERVE COURT PAPERS
received it. If the judge is about to rule on a motion,
AFTER THE COMPLAINT
and your response has not been filed, it does not
matter whether you were only a day late or an entire A great deal of paperwork is generated in the course
month late—the result is likely to be the same. When of a typical lawsuit. As a general rule, every piece of
you are dealing with the paper-processing require- paper must be served on every opposing party and
ments of the rules, “approximately correct” and (except for voluminous discovery papers in some
“nearly on time” are not good enough. courts) must also be filed with the clerk of the court.
Office procedures in a litigation law office are By requiring that papers be served on all parties,
specifically designed to facilitate this process of the system ensures that all of the attorneys are kept
324 WORKSHOP 7 Paper Flow in a Litigation Office: Service, Docketing, and Deadlines
informed of what is going on in the suit. By requiring each of which may have his or her own attorney. If
papers to be filed, the rules ensure that the court’s two parties are each serving a paper on two other
file will contain an accurate record of everything parties, four copies are needed in total; but if a hun-
that has happened in the suit. dred parties are each serving a paper on a hundred
Fortunately, the rules do not require formal ser- other parties, ten thousand copies (100 times 100)
vice—the kind required for the summons and com- would be needed. You can easily see that if every pa-
plaint—for all of these papers. Once served with the per in such a lawsuit were to be served on every
summons and complaint, each defendant is aware of party, entire forests would be required to supply
the lawsuit and has an obligation to keep informed enough paper to do the job. In such cases, however,
about what is going on. Therefore, papers subse- the judge has the authority to short-circuit the gen-
quent to the complaint may be served in a much less eral requirements of FRCP, Rule 5, by a specific court
formal manner. order; see FRCP, Rules 5(c) and 16.
What Papers Must Be Served?—The short an-

Your Local Notes
swer is that all papers generated under the rules of
procedure must be served on all opposing parties. _________________________________________________
Specifically, FRCP, Rule 6, requires service of the fol-
_________________________________________________
lowing types of court papers:
■ Court orders,
■ Pleadings subsequent to the complaint, How Must Papers Be Served, and on Whom?—
■ Discovery papers, FRCP, Rule 5(b), provides for two main ways of serv-
■ Written motions except those that may be ing court papers other than the complaint: mailing
heard ex parte, and and hand delivery. To whom? If an attorney has ap-
peared for a party, service is always on the attorney,
■ Every written notice, appearance, demand, not on the party. (In fact, it is a violation of the rules of
offer of judgment, designation of record on lawyer ethics to send any communication to an op-
appeal, and similar paper. posing party in a lawsuit whom you know to be rep-
This list covers essentially every type of court paper resented by an attorney; all communications must be
there is, so the general rule of thumb is that if a pa- with the attorney.) Papers to be served on parties
per is in the form of a court paper (i.e., it has a cap- who are not represented by attorneys must be mailed
tion and the other formal parts described in Work- or delivered to the party himself (or herself, or itself).
shop 4), it must be served on all opposing parties. To serve a paper by mail, it is merely necessary
Note that this does not mean that all papers gen- to place a copy in an envelope addressed to the last
erated in the course of a lawsuit are served on your known address of the attorney or party to whom it is
opponents. Many papers are confidential, and care being sent, affix first-class postage, and deposit the
must be taken that they do not fall into your oppo- envelope in the U.S. Mail. At that point, the job is
nents’ hands. These include such things as letters to done and service is complete, regardless of whether
and from your client; research and other memos be- the envelope actually arrives. (In practice, papers
tween attorneys or paralegals within your own of- rarely disappear in the mail, and when they do, the
fice; private communications with witnesses, and attorneys and/or the judge can usually work out
especially those with expert witnesses hired by some reasonable way to get the case back on track.)
your firm to work on the case; private documents The alternative is to serve by hand delivery. Un-
provided by your client or gathered through inves- like formal service under FRCP, Rule 4, this does not
tigation; and other similarly confidential docu- require handing the paper directly to the attorney
ments. (Some of these may eventually have to be or party, nor is it necessary to employ a process
turned over to opposing parties as part of the dis- server. It is sufficient to have a messenger leave the
covery process, but they are not court papers and paper at the attorney’s (or party’s) office “with a
you do not serve them under FRCP, Rule 5.) If you clerk or other person in charge thereof, or if there is
are in doubt about whether a particular paper is re- no one in charge, leaving it in a conspicuous place
quired to be served, never guess—consult your su- therein” [FRCP, Rule 5(b)]. If the office is closed, or
pervising attorney. if the person has no office, Rule 5 allows a paper to
There is an exception to the general rule of serv- be delivered to the person’s “dwelling or usual place
ing every court paper on every party. It arises in the of abode.” In the unlikely event that the person to be
context of large, complex cases, in which there may served has no known address, service can be made
be a hundred or more plaintiffs and defendants, by leaving the paper with the clerk of the court.
WORKSHOP 7 Paper Flow in a Litigation Office: Service, Docketing, and Deadlines 325
In practice, these options usually can be re- deliver the paper to the opposing attorney, even if
duced to two: A paper is served either by mailing it you have already faxed or e-mailed it. (This tem-
to the office of the party’s attorney, or by sending a porarily backward state of affairs is likely to change
messenger who will hand the paper to the recep- quickly, however. Some courts are already experi-
tionist in the attorney’s office. menting with electronic filing systems, in which pa-
pers could be filed with the court directly by e-mail,
thereby potentially relieving the clerk’s office of the
SIDEBAR necessity of physically handling and storing thou-
sands of tons of paper. Once the practicability of
Is The Process Server such systems has been demonstrated, you can be
Out of Work? sure that courts everywhere will be quick to jump on
the bandwagon because of the potential for huge
Even though FRCP, Rule 5, allows most papers cost savings.)
after the complaint to be served informally by mail If the alternatives are mailing and hand deliver-
or delivery to the attorneys’ offices, a few situations ing, and service by mail is complete on mailing, why
still arise in which papers are usually served the would anyone ever go to the extra bother and ex-
hard way, by a process server. These situations typ- pense of hand delivering? One common reason is to
ically involve the service of court orders of various force the opposing party to respond sooner. Why
kinds—subpoenas (recall that a subpoena is a would the opposing party have to respond sooner
court order requiring a witness to appear), orders to a paper that is hand delivered? As we will see
to show cause, and injunctions are a few examples. shortly, the rules allow a longer response time for
The reason for using formal service in these sit- papers served by mail.
uations is not that the rules necessarily require it—
Your Local Notes
in fact, FRCP, Rule 5, specifically includes orders
among the categories of papers for which informal _________________________________________________
service is allowed. Rather, the reason has to do with
_________________________________________________
the way in which court orders are enforced. What
happens if someone violates a court order? The
usual remedy is for the judge to hold the person in
If We Serve It, We File It—The official record of
contempt of court; jail time and fines can be im-
everything that has happened in a case is the court
posed as punishment for such disobedience. There
file. Serving papers on opposing attorneys is impor-
is, however, a catch: Before the judge can hold
tant, but if we want there to be a record of what we
someone in contempt, he must have proof that the
did, we must file something with the clerk of the court.
person was aware of the court order—in other
Normally, what we file is the original of the paper
words, the disobedience has to be deliberate. As a
itself (photocopies are served on the opposing at-
practical matter, it would be impossible to prove
torneys). FRCP, Rule 5(d), states “All papers after the
that the party—the client—was aware of a court
complaint required to be served upon a party . . .
order if all you did was mail it to the attorney.
shall be filed with the court within a reasonable time
So, when you have a court order that you want after service.” Thus, the general rule is that any pa-
to be able to enforce by having the judge punish per that is in the form of a court paper (i.e., has a cap-
disobedience with jail or a fine, you need to have a tion and the other formal parts) and that is served
process server make personal service on the person on opposing attorneys is also filed with the clerk.
to whom the order is directed. Such situations are There are, as always, a few exceptions. Discovery
commonplace in, for example, divorce cases. papers and responses to discovery present a special
problem because they are often many pages long. It
is not at all unheard of for a set of answers to inter-
What about more modern methods of commu- rogatories, or a response to a request for production
nication, such as faxing or electronic mail? Unfortu- of documents, with attachments, to run to many hun-
nately, current court rules have not, on the whole, dreds of pages. Formerly, rules of procedure in most
kept up with the explosion of technological ad- courts required all such papers to be filed, and clerks’
vances. You are perfectly free to send a paper to an filing systems were becoming clogged with reams
opposing attorney by fax or e-mail. Modern law of- and reams of routine discovery papers, most of
fices use these technologies routinely. Faxing and e- which the judge was unlikely ever to see.
mailing do not constitute valid service under FRCP, To solve this problem, many courts no longer al-
Rule 5, however, so you would still have to mail or low routine discovery papers to be filed with the
clerk. FRCP, Rule 5(d), specifically authorizes U.S. ready seen, in Workshop 4, how to include a certifi-
district courts to adopt local rules providing that cate of service in the formal skeleton of a court paper.
discovery papers should not be filed with the clerk, Now, when we file the paper, with the certificate of
and many districts have done so. Your instructor service attached, there will be something in the court
will inform you of the practice in your locality refile to show when and how we served the paper.1
garding filing of discovery papers.
In jurisdictions where discovery papers are not Your Local Notes
filed, how is the court record made to reflect that
_________________________________________________
the papers were ever served? A notice of service is
filed. Thus, for example, when defendant Smith _________________________________________________
wishes to submit interrogatories to plaintiff Jones,
the interrogatories themselves are served on Jones,
but what is filed with the court is a one-page “Notice HOW TO COMPUTE DEADLINES
of Service of Interrogatories” reciting the date and
the fact that the originals were served on Jones. Fil- There are few opportunities to win a lawsuit at a sin-
ing a notice is a handy technique any time you want gle stroke, but plenty of opportunities to lose one.
to make a record of something that you have done Missing an important deadline ranks high in the lat-
in a lawsuit (see sidebar). ter category. The care and handling of deadlines in
a lawsuit is not always simple, in part because it is
often necessary for you to compute a deadline,
SIDEBAR rather than simply having the date given to you.
Mail Handling—Good management of deadlines

Notices in a law firm begins with proper mail handling prac-
tices. (We define mail handling broadly, to include
Very often during the course of a lawsuit, a
the handling of all of the papers delivered by mes-
party needs to be sure that some event has been
senger throughout the day as well as those received
brought to the attention of other parties and/or
in the morning mail.) Most of the deadlines you will
made a part of the court record. This is routinely
be dealing with in litigation arise either from the
done via a court paper called a notice.
need to respond to papers sent by opponents, or
Suppose, for one example, that the court has from court orders and minute entries ordering you
ordered Park Hotels Group to turn over Banbury to complete some task by a particular date.
Park Hotel’s telephone record for the night of Shan- Even relatively small litigation law firms may re-
non’s stay. The hotel’s attorney, Gail Stoddard, ceive several mailbags full of documents each day. It
complies with the court’s order, but wants to be is easy to see that if each paper in this daily river of
sure that she can prove that she did so. How? She documents were to be routed directly to the person
files a notice (and, of course, serves copies of the it is addressed to, at least some of them would be
notice on all the opposing attorneys). overlooked. The attorney to whom a paper is ad-
[Caption] dressed may be out of town, and it may sit unread
on his desk for a week; a secretary may accidentally
Notice is hereby given that defendant Park
put an incoming motion in the case file instead of
Hotels Group has delivered to plaintiff Shannon giving it to the attorney to respond to. The potential
Martin the telephone records specified in the for oversights is enormous.
Court’s order dated January 2, 2000.
[Date, signature lines, mailing certificate] 1

A skeptic might object that the ‘certificate’ does not
prove that we served the paper, it merely proves that we
said we did! And, in fact, though clearly unethical, it is
not unheard of for an attorney to “back date” a certifi-
How Do We Prove What We Served?—Suppose cate of service so that a paper appears to have been
mailed before some deadline. Fortunately, the system
we serve a paper by mailing or delivering it to our
works well enough most of the time, and no one has
opponent’s attorney, and she later denies having re- thought of a better way. One may hope that such oppor-
ceived it—how can we prove that we served it? tunities for cheating will disappear once electronic filing
FRCP, Rule 5(d), provides the necessary mecha- becomes universal, because electronic mail systems can
nism. We attach a certificate of service (also often automatically keep an accurate record of what was sent
called a mailing certificate) to the paper. We have al- to whom and when.
Therefore, most law firms follow a strict policy docketing system is working properly, the paper
whereby all incoming mail and deliveries must go given you will already be stamped with the deadline
first to some employee who is assigned the respon- date for the response. Your first reaction should be
sibility for checking each paper for potential dead- to verify that the deadline is correct. The step-by-
lines, computing the dates if necessary, and making step instructions to follow will tell you how.
appropriate notations on the office calendar. This
process is referred to as docketing. The docket is Your Local Notes
the office calendar, and may be kept in a regular
_________________________________________________
(paper) calendar book or, increasingly, on a com-
puter system of some kind. Typically, a central _________________________________________________
docket is kept containing all deadlines for all attor-
neys in the office; each attorney may also keep her
own calendar or, in a computerized system, may
simply access her portion of the central docket.
Setting Deadlines:
In a properly run system, no one—not even the Step-by-Step Instructions
senior partner of the firm—is allowed to touch an
item of mail before the docketing clerk has Deadlines arise in two main ways: (1) The court ex-
processed it. pressly orders you to do something by a certain
The docketing clerk stamps each incoming pa- date or (2) an opposing party serves a paper on you
per with a “Received” stamp that automatically im- and the rules of procedure require you to respond to
prints the date. This is important in case of a later it within a certain amount of time. Determining the
dispute about when the paper was actually re- first kind of deadline is easy because no computa-
ceived. The docketing clerk also makes a notation tion is required, the deadline date is set by the
on the paper, again using a rubber stamp, indicating court. Our step-by-step instructions, therefore, are
any deadlines that are being docketed. concerned only with the second kind.
After a paper has been docketed, the docketing You might suppose that response deadlines
clerk determines which attorney is responsible for would also be easy to compute. All you have to do is
the case to which the paper pertains, and routes the count some number of days—surely this is not
paper to that attorney (or perhaps to his secretary) rocket science?
for the actual preparation of the required response. In fact, computing deadlines should not be diffi-
At this point, you may be wondering, “What cult if you approach it in a systematic way—but,
does any of this have to do with me as a paralegal? never forget, litigation is a contest among adver-
If the docketing clerk is responsible for calendaring saries, and if a mistake can be taken advantage of, it
deadlines, why do I need to know about this?” will be. And yes, computing a deadline is a matter of
One reason is that paralegals are sometimes as- counting days, but how many days, exactly? What
signed to do docketing. Another is that, even with day do you start counting from? Do you count week-
the most carefully planned docketing system, mis- ends? What if the deadline falls on, say, Christmas?
takes will occasionally be made. Therefore, in a first- Some of these questions are answered by the rules
rate litigation firm, it is considered the responsibil- of procedure; the answers to others depend on local
ity of everyone—partners, associates, paralegals, rules, case law, and sometimes merely local custom.
down to the lowliest clerical employee—to worry
continually about deadlines. We recommend that Determine What (If Any)
every attorney and paralegal should cultivate the
Step 1 Response Is Required
following habit: Every time you see or come in con-
tact with a new court paper in a case, give it a quick The deadline analysis process begins when your
deadline check. If it has already been stamped with law firm receives a court paper—any court paper.
a response date, double check the deadline by re- The first decision that must be made is whether this
computing it in your head; if not, consider whether paper is one that requires a response of some kind.
a response requirement may have been overlooked. You might suppose that the answer would be
In the long run, this is a habit that will pay rich divi- obvious from the title of the paper, and often it is. If
dends in terms of avoiding malpractice claims. the caption contains the word motion or petition,
More specifically, we note that as a litigation you can usually be sure that a response date needs
paralegal, you will often be assigned to draft re- to be calendared. Other routine types of court pa-
sponses of various kinds. Typically, your supervis- pers requiring responses include discovery re-
ing attorney will hand you a motion, or a discovery quests: interrogatories, requests for production of
request, and assign you to “deal with it.” If the firm’s documents, and requests for admissions.
An opponent’s response to a motion of yours ■ Routine motions. The Federal Rules of Civil
also triggers a deadline—for the filing of a reply to Procedure do not expressly prescribe a re-
the response. In general, if the title to an incoming sponse time for motions. FRCP, Rule 6(d), re-
paper begins with the word response, a reply to the quires motions to be served at least 5 days
response is usually needed. before the hearing on the motion, unless the
The situation is not always so simple. For exam- court orders otherwise, which implies that
ple, suppose you receive in the mail an answer to a the responding party would have no more
complaint that you have filed and served. Does an than 5 days to respond; in practice, no federal
answer to a complaint trigger any deadlines? Gener- court that the authors are aware of imposes
ally not, but what if it includes a counterclaim or a such a short response time. Most U.S. district
cross-claim? Then a reply is required; see FRCP, Rule courts have a local rule specifying the proce-
7(a). Moreover, under the rules of some courts, the dure for filing motions and responses to
filing of an answer sets other clocks in motion; for them. Typical time periods under U.S. district
example, the rules may require the filing of a disclo- court local rules are 10 days for a response
sure statement within a certain number of days after and 5 days for a reply.
the answer is filed, or may require that discovery be ■ Motions for summary judgment. Usually, much
completed within some number of months after is- more work is required to respond to a mo-
sue is joined. In deciding whether nonroutine pa- tion for summary judgment than is required
pers require responses, there is no substitute for ex- for a routine procedural motion. Motions for
perience and thorough familiarity with the rules. summary judgment carry the potential to de-
When in doubt, consult your supervising attorney. cide all or part of the lawsuit in the moving
party’s favor, and often raise issues that are
Your Local Notes legally and factually complex. Recognizing
this, most court rules allow a longer re-
_________________________________________________
sponse time than for other motions. As with
_________________________________________________ the routine motions just discussed, the Fed-
eral Rules of Civil Procedure imply an impos-
sibly short response time [10 days; see FRCP,
Rule 56(c)], which is invariably lengthened
Determine the Applicable
Step 2 Time Period
by local rule or custom. Typical time periods
are 30 days for a response to a motion for
summary judgment and 15 days for a reply to
Having decided that a particular court paper re-
the response.
quires a response, the next step is to determine how
much time is allowed. For certain types of re- ■ Discovery requests. Answers to written inter-
sponses (especially discovery responses) the re- rogatories [see FRCP, Rule 33(b)(3)], re-
sponse times are prescribed by the rules of proce- sponses to requests for admissions [see
dure. For others, however (e.g., responses to FRCP, Rule 36(a)], and responses to requests
motions) local practice, as set forth in the local for production of documents [see FRCP, Rule
rules or as dictated by local custom or by a particu- 34(b)] are all due 30 days after the service of
lar judge’s preferences, is usually controlling. the discovery request on the answering party.
Here are some typical time limits for common
types of responses (your instructor will inform you Your Local Notes
of the corresponding time periods for the courts of _________________________________________________
your locality):
_________________________________________________
■ Pleadings. FRCP, Rule 12(a), governs the time
that a defendant has to file an answer to a
complaint or a reply to a counterclaim or
cross-claim. The general rule is that answers Determine Date from Which
are due 20 days after service of the complaint,
Step 3 to Begin Counting
but there are exceptions as set forth in the
rule. State court time periods are quite vari- By the time we get to this point in our analysis, we
able and may be considerably lengthened if know that some opposing party has served a court
service was made out of state, or by some paper on us that requires a response, and we know
method other than personal service, or if the how many days are allowed for that type of re-
defendant is a government agency. sponse. Now we must compute the deadline. To do
that, we need a starting point from which to count Your Local Notes
the required number of days.
The starting point is the date on which the op- _________________________________________________
posing party served the paper on us that we are re- _________________________________________________
sponding to. What date is that? It depends on the
mode of service:
■ Papers personally served by a process server.
For papers served by a process server, the Step 4 Compute the Deadline Date
date of service is the date that the process
server actually delivered the paper to the
person being served. Therefore, if you are Now we have a starting date and we know the al-
computing the due date for an answer to a lowed time period. Surely, now, all that remains is a
complaint, you will need to know the exact simple matter of counting days, right? The answer
date on which your client was served. is “it depends.” FRCP, Rule 6, sets out the rules for
Clients’ recollections of such things are no- counting the days, and it adds a few complexities of
toriously untrustworthy; when in doubt, the its own. Here are the main rules:
best course is to verify the service date via ■ The first day does not count. We begin count-
a call by your supervising attorney to the ating on the day after the date of service. FRCP,
torney who served the complaint. (You Rule 6(a), tells us that “the day of the act . . .
might suppose that it would be easier to from which the designated period of time be-
check the court file for the return of service, gins to run”—here, the date that the paper we
but, in practice, it may take several weeks are responding to was served—“shall not be
before a filed paper actually wends its way included.”
through the clerk’s processing and into the
Example: A complaint is served on March 1,
actual file.)
and the rules allow us 20 days in which to file an
■ Hand-delivered papers. For a paper that was answer. In counting the 20 days, March 1 is day 0 in
hand delivered to your law office, the date of our count, day 1 is March 2, day 2 is March 3, etc.
service is the date on which the paper was ■ The last day does count. The last day of the pe-
actually delivered. No surprises here. riod we are counting is included; see FRCP,
■ Papers served by mail. For a paper that was Rule 6(a).
mailed to your law office, the date of service Example: We are counting a 20-day period
is the date on which the paper was de- beginning on March 1. As before, day 1 is March
posited in the mail. This is because FRCP, 2, day 2 is March 3 (we will let you count days 3
Rule 5(b), states that “service by mail is through 19 on your own), and day 20 is March 21.
complete upon mailing.” (As we will see in Because the last day does count, the deadline
Step 4, service by mail also extends the re- falls on March 21.
sponse time.) ■ We get 3 extra days if we were served by mail.
■ Other kinds of service. The three methods of We have already seen that when a paper is
service just mentioned—personal service served by mailing it to a party’s attorney, ser-
by a process server, hand delivery, and mail vice is complete when the paper is placed in
service—account for the great majority of the mail. Obviously, mail delivery is not yet
papers that you will be called on to respond instantaneous, so to make up for the several
to in a litigation practice. Occasionally, days of response time that the responding
however, a client will show up with a com- party is being deprived of while the paper
plaint or other paper that has been served floats through the mail system, the rules give
by registered mail, or via the nonresident the responding party an extra 3 days to re-
motorist statute, or by some other unusual spond to papers served by mail; see FRCP,
means. Be warned that the statutes provid- Rule 6(e). (In state courts the problem of
ing for such alternative means of service mail delay may be handled differently, or the
typically also specify how to determine number of extra days may be different. Your
when service is deemed to be complete. instructor will inform you of the practice in
Therefore, to compute a response date, you your locality.)
must consult whatever statute or rule gov- Example: A motion is served on your client on
erns the particular method of service that March 1 by mailing it to your office. The response
was used. time is 15 days. Because the motion was served
by mail, 3 days are added, so the response time Consider Whether the Deadline
becomes 18 days. March 1 is day 0 . . . March 19 Step 5 Is Workable
is day 18, so the response is due on March 19.
■ For response times under 11 days, holidays and Deadlines are a routine part of the landscape in a lit-
weekends do not count. It stands to reason igation practice, and every litigator or litigation
that if a party has, say, only 3 days to respond paralegal must learn to cope with them. Some are
to some paper, and she received it on Friday, easy to meet, some difficult, and a few are impossi-
it would be a bit unfair to count Saturday and ble. Sometimes, a given task will present the uneasy
Sunday as part of the 3 days. To provide some choice between doing a rushed, imperfect job or tak-
relief in the case of short response times, ing the time to do it right but missing the deadline.
FRCP, Rule 6(a), provides that “when the pe- There are essentially three options for dealing
riod of time prescribed or allowed is less than with an unworkable deadline: (1) Prepare the best
11 days, intermediate Saturdays, Sundays, response you can in the time allotted, working
and legal holidays shall be excluded in the nights and weekends if necessary, file it on time,
computation.” [FRCP, Rule 6(a) specifies and live with its flaws, whatever they may be;
which holidays qualify.] (2) ask the opposing lawyer for an extension of the
Example: A motion is hand delivered to your deadline; or (3) file a motion asking the court to ex-
office on March 1, a Thursday, and the response tend the deadline.
time is 5 days. March 1 is day 0; March 2, Friday, is Each of these options has a cost associated
day 1; March 3 and 4 are Saturday and Sunday and with it. For choice 1, the drawback is the risk that
do not count; March 5, Monday, is day 2; March 6, rushing will cause mistakes. For choice 2, the cost
Tuesday, is day 3; March 7, Wednesday, is day 4; is that, having received an extension, you will be ex-
and March 8, Thursday, is day 5. The response is
pected to reciprocate when the opposing lawyer
due on March 8. (We assume that no federal or
needs one, perhaps in a situation in which it would
state holidays fell on March 2, 5, 6, 7, or 8.)
have been to your client’s advantage to refuse.
■ A deadline may not fall on a weekend or holi- Choice 3 entails preparing and filing a motion,
day. It would be meaningless to make re- which takes time and costs money, and risks an-
sponses due on days when the clerk’s office noying the judge (judges hate refereeing trivial
is not open. Therefore, FRCP, Rule 6(a), pro- scheduling disputes).
vides that if the last day of our count falls on The point that we wish to emphasize is that the
a Saturday, Sunday, or legal holiday, the dead- cost of choices 2 and 3 goes up as the deadline gets
line shifts to the next day that is not a Satur- closer. If we decide that we need an extension and we
day, Sunday, or legal holiday. act early, we can always fall back on choice 1 if op-
Example: A complaint is served on our client on posing counsel is too demanding, and we can file a
June 12, a Sunday. The rules allow us 20 days in motion for an extension if opposing counsel refuses
which to file an answer. July 2, a Saturday, is day our request. If we wait until the day before the re-
20 (you should by now have no trouble verifying sponse is due, we are at opposing counsel’s mercy;
this for yourself). Because day 20 is a Saturday,
as a practical matter, it is very difficult or impossible
the deadline shifts. The deadline cannot fall on
to prepare, file, and get a ruling on a motion for ex-
the next day, July 3, because it is a Sunday. Nor
can it fall on the next day, Monday, July 4, because tension if we only have one day in which to do it.
July 4 is a national holiday. Therefore, the answer Therefore, we include as one of the steps in eval-
must be filed by Tuesday, July 5, which is the first uating the deadline for a given response that you
day following the computed deadline that is not a should quickly outline the work that will be required.
Saturday, Sunday, or legal holiday. Make a list of the major tasks and subtasks, and be
sure to list all of the items—signatures, documents,
With these rules, we should have no difficulty com-
affidavits, attachments—that you will need to obtain
puting deadline dates in most situations. In the
from others. Make a tentative schedule and consider
rare situation for which FRCP, Rule 6, gives no
carefully whether it is workable. If you conclude that
clear answer, do not guess—consult your super-
more time will be needed, now is the time to tell your
vising attorney.
supervising attorney, so that he can contact oppos-
ing counsel for an extension and, if necessary, file a
Your Local Notes motion asking the court for an extension.
_________________________________________________ A contact with opposing counsel is also war-
ranted if you conclude that the deadline date is un-
_________________________________________________
certain or ambiguous for some reason. It is better to
agree on a response date with opposing counsel than
to guess at it and be found wrong. Again, your role as

a paralegal is to point out the uncertainty to your su-
SIDEBAR
pervising attorney; as a paralegal you should never
contact opposing attorneys directly unless your su- Stipulations
pervising attorney has instructed you to do so.
A stipulation is an agreement between attor-
If it does become necessary to contact oppos-
neys. When reduced to writing, it takes the form of
ing counsel, any extension agreed to should always
a court paper, with appropriate caption and for-
be documented in writing. At a minimum, a con-
mal parts (see Workshop 4), which is filed with the
firming letter is sent by the attorney requesting the
clerk. In some courts, it is sufficient merely to file the
extension to the attorney granting it. In some
stipulation; in others, a court order approving the
courts, by local rule or custom, extensions should
terms of the stipulation is submitted. Figure W7–1
be documented in a stipulation signed by both at-
shows a sample of a stipulation.
torneys and filed with the clerk.
Your Local Notes Step 6 Calendar the Deadline

_________________________________________________
Ordinarily, by the time you as a paralegal are assigned
_________________________________________________
a court paper to respond to, any deadlines will al-
ready have been entered in the central calendar for
Figure W7–1 What a Stipulation Looks Like

DISTRICT OF ARIZONA

)
) NO. 95-770 PHX-JML
Plaintiff, )
) STIPULATION FOR
v. ) EXTENSION OF TIME
)
ARTHUR COLLINS and JANE DOE COLLINS, )
husband and wife; PARK HOTELS GROUP, )
INC., a Delaware corporation; )
)
Defendants. )
_______________________________________________ )
Plaintiff and Defendant Park Hotels Group, Inc. hereby stipulate that Plaintiff shall have until
August 19, 2000, to file a response to Defendant’s motion for Summary Judgment and that
Defendant shall have until September 19, 2000, to file a reply.
RESPECTFULLY SUBMITTED this ____ day of July, 2000.
CRANDALL, ELKINS & MAJOR SIMON & PORTER
Gail Stoddard Allen Porter

Attorney for Defendant Attorneys for plaintiff
Park Hotels Group, Inc.
(Certificate of Mailing)
the office. If not, you must take steps to see that they
are entered. All response deadlines, deadlines for fil-
SIDEBAR
ing papers with the court, and other court-related
deadlines must get into the central calendar—even Your Opponent’s Deadlines
ones that you have entered in your own calendar and
A good docketing system keeps track of not just
feel that you have well under control.
your own deadlines, but those of your opponents.
Why? One of the things that a proper central cal-
When you serve a paper requiring a response on
endaring system does is generate daily reports for
some opponent, you should compute the due date
each attorney and paralegal in the office, showing
for the opponent’s response and calendar it. In this
the upcoming deadlines for all matters for which she
way, you will be prepared to take appropriate ac-
is responsible, including projects assigned to subor-
tion if you do not receive opponents’ filings when
dinates. This provides a fail-safe mechanism in case
they are due.
an attorney or paralegal becomes ill or incapaci-
tated, or simply drops the ball. In such case, the next What is appropriate action? If an answer is not
person up the ladder of authority will automatically filed when due, entering a default is a possibility.
be made aware of any pending deadlines. When discovery responses are not filed, a motion to
It is also imperative that every litigation parale- compel may be in order. However, under modern
gal keep a personal calendar. There are simply too rules of procedure, with their emphasis on deciding
many time-critical events in litigation to allow re- cases on the merits, you will almost certainly be re-
liance on memory alone, and some of these events quired at least to attempt to contact opposing
will be of a type (appointments with witnesses, counsel before entering defaults or filing motions.
progress checks for assigned tasks, etc.) not appro- Moreover, as already noted, it is usually impossible
priate for the central office calendar. It goes without to tell for certain whether an opponent has filed a
saying that all deadlines for projects assigned to you paper on time, because of the (typically) long time
should be entered in your own calendar, even though that the clerk’s office takes to get it into the court
they are already entered in the office calendar. file where you can see it.
Therefore, the first step should usually consist
Your Local Notes of a phone call or reminder letter by your supervis-
ing attorney to opposing counsel, inquiring
_________________________________________________
whether the anticipated paper has been filed. There
_________________________________________________ is another reason for inquiring before taking offen-
sive action: Papers can and do get lost in the mail
or, worse, fall off desks and disappear under filing
cabinets. Better to verify with a phone call first,
even at the potential cost of alerting your opponent
Setting Deadlines: to his oversight, than to fire your nukes only to find
that the paper in question has been sitting in the
Learning by Example court file the whole time.
To see how FRCP, Rules 5 and 6, work in practice, let
us consider the situation that arises when Gail Stod-
dard files her motion for summary judgment on be- it the following Wednesday, he hands the motion to
half of Park Hotels Group. Chuck Fletcher, the paralegal, with instructions to
Even though the motion is really aimed at plain- draft up a response. Chuck notes that the motion has
tiff (Shannon), Ms. Stoddard must serve it on all par- the firm’s docketing stamp, with a notation that the re-
ties; see FRCP, Rule 5 (“ . . . every written motion . . . sponse is due on August 5. Well-trained paralegal that
shall be served on each of the parties. . . .”). She could he is, Chuck’s first reaction is to double-check the re-
do this either by having a messenger hand deliver a sponse date. We will do the same:
copy to the offices of each of the opposing attorneys
or by mailing copies to each attorney. Since Dr. Determine What (If Any)
Collins’s attorney is in another state, she would likely
Step 1 Response Is Required
serve Dr. Collins’s copy by mailing it to Roger Yarbor-
ough. Allen Porter’s office is nearby, so she might When a party moves for summary judgment, it is up
consider having the motion hand delivered to him. to the opposing party to convince the court that the
We will assume that Gail Stoddard files the motion facts on her side are sufficiently strong to warrant
for summary judgment with the clerk of the court on the expense of a trial; see FRCP, Rule 56(c).
July 1, a Monday, and mails it to Allen Porter and Roger Because our hypothetical lawsuit is proceeding
Yarborough the same day. When Allen Porter receives in the U.S. District Court for the District of Arizona,
whose rules are not untypical of those in other dis- by mail. Three more days takes us to Saturday, Au-
trict courts, we might ask ourselves whether the lo- gust 3. Under FRCP, Rule 6(a), the deadline may not
cal rules have anything to say about what happens fall on a weekend, so our response is due the fol-
if we fail to respond to a motion for summary judg- lowing Monday, August 5.
ment. Indeed they do! Rule 1.10(i) states “. . . if the
opposing party does not serve and file the required Consider Whether the Deadline
answering memoranda . . . such non-compliance Step 5 Is Workable
may be deemed a consent to the . . . granting of the
motion. . . .” Is four and a half weeks (Wednesday, July 3, when
In fact, as a practical rule of thumb, if you do not Porter receives the motion in the mail to Monday,
file a response to a motion—any motion—the court August 5, when the response is due) enough time to
is likely to assume that you do not object and rule prepare a response to a motion for summary judg-
accordingly. Therefore, we would not dream of let- ment? It depends.
ting any motion go by without a response, unless the Responding to a motion for summary judgment
motion is one that we do not mind having the court involves two main tasks:
grant (and even then the civilized thing to do is to
1. You must write a legal argument sufficient to
file a response stating that we have no objection).
convince the judge that the substantive rules
of law governing the issues raised by the mo-
Determine the Applicable tion come out the way you say they do.
Step 2 Time Period 2. You must assemble the necessary factual mate-
rials to convince the judge that you have at
The procedure for scheduling responses, replies, least some evidence to prove your client’s ver-
and hearings on motions for summary judgment sion of the facts.
varies considerably from one court to another. The first task will likely entail long hours spent
Again referring to the local rules for the U.S. District hitting the books in the law library, or surfing your
of Arizona, Rule 1.10(l) provides that the party op- favorite on-line legal research tool. How many long
posing a motion for summary judgment “shall, un- hours? That, unfortunately, is unpredictable. In our
less otherwise ordered by the Court, have thirty hypo, Chuck will need at least to look for factually
(30) days after service within which to serve and similar negligence cases in which, hopefully, the
file a responsive memorandum in opposition. . . .” court ruled for plaintiff under similar circum-
stances. Negligence is a very broad area of the law,
Determine Date from Which with many thousands of reported cases. Chuck may
Step 3 to Begin Counting get lucky early, or he may spend a week in the li-
brary with nothing to show for it except a few legal
Our hypothetical assumes that Gail Stoddard’s mo- pads full of dead ends.
tion was served by mail on Monday, July 1. FRCP, The factual support for a response to a motion
Rule 5(b), provides that “service by mail is complete for summary judgment usually consists of affidavits,
upon mailing.” Because the rule quoted in Step 2 re- excerpts from deposition transcripts, and answers
quires us to respond within “30 days after service,” to interrogatories. In our hypo, Gail Stoddard is ar-
and FRCP, Rule 6(a), provides that we do not count guing that there is no evidence that the hotel was
the day from which the time period begins to run negligent because the key found by the police did not
(here, July 1), our count begins with day 1 on Tues- fit Shannon’s lock; Allen Porter is arguing that Shan-
day, July 2. non’s and Dr. Collins’s testimony constitute evidence
that Shannon’s door was locked and that the key
given to Dr. Collins opened it. Therefore, the main
Step 4 Compute the Deadline Date factual support that Chuck will need for the response
will consist of Shannon’s and Dr. Collins’s testimony.
Applying the rules described under Step 4, Wednes- Providing Shannon’s is easy—he can simply
day, July 3, is day 2. Thursday, July 4, is a federal prepare an affidavit for her signature reciting that
holiday; however, the time period we are counting she locked the door. Dr. Collins’s is another matter.
(30 days) is longer than 11 days, so intermediate If his deposition has been taken, and if he gave the
holidays and weekends are counted. Therefore, needed testimony in the deposition, then a copy of
Thursday, July 4, is day 3. If we continue counting in the relevant portion of the transcript can be at-
this fashion, we will find that day 30 is July 31, a tached to the response. If not, then Allen Porter
Wednesday. However, FRCP, Rule 6(e), gives us 3 ad- may try to convince Roger Yarborough to get Dr.
ditional days because the motion was served on us Collins to provide an affidavit stating that the key he
was given turned in the lock; failing that, it would be 1. Obtain a copy of the local rules for the U.S dis-
necessary either to send interrogatories to Dr. trict court having jurisdiction over your local-
Collins or to take his deposition. Neither procedure ity. Review them and note any rules that affect
could likely be completed in 30 days. filing and service of court papers, allowed re-
As a general rule, 30 days usually is enough time sponse times, extensions, and stipulations.
to prepare a response to a motion for summary judg- 2. Obtain a copy of the local rules for the superior
ment—if you have done your homework in terms of court or other state court in which civil law-
researching the claims in the suit early on (see Work- suits would be filed in your locality. Review
shop 1), and if discovery is reasonably well along, them and note any rules that affect filing and
and if the motion you are responding to is relatively service of court papers, allowed response
straightforward and uncomplicated, and if your cal- times, extensions, and stipulations.
endar is light enough to allow you to actually use the
30 days to work on the response. Any glitch, how- 3. Assume that Shannon’s complaint is filed in the
ever, will put you squarely behind the eight ball. U.S. district court having jurisdiction over your
Chuck Fletcher, having been around this track a locality. Her summons and complaint are served
few times, wisely concludes that an extension on defendant Park Hotels Group, Inc., on Febru-
should be requested. Allen Porter telephones Gail ary 1, a Tuesday, by delivering a copy to Park Ho-
Stoddard, who grudgingly extends the due date for tels Group’s designated agent, at its office in your
the response to August 19—and, in return, gets an city. What is the deadline for Park Hotels Group
agreement that she will have until September 19 to to file an answer or other responsive pleading?
file a reply. Under the local rules of the U.S. District 4. Same facts as Exercise 3, except that Shannon’s
Court for the District of Arizona [see Rules 2.7(d) complaint is filed in the superior court or other
and 1.10(n)], extensions of time are valid only if restate court in which civil lawsuits would be
duced to a written stipulation, signed by both attor- filed in your locality. What is the deadline for
neys, filed, and approved by the court. Chuck there- Park Hotels Group to file an answer or other re-
fore prepares a stipulation, which Allen Porter signs, sponsive pleading? Does it differ from your an-
setting forth the extension agreement. Chuck then swer to Exercise 3? If so, how and why?
sends the stipulation, with a suitable cover letter, to
Gail Stoddard for her signature. She will sign the 5. Assume that Shannon’s lawsuit is pending in the
stipulation and return it to Allen Porter’s office for U.S. district court having jurisdiction over your
filing with the court. locality. Allen Porter files a motion to compel
asking the judge to order Park Hotels Group to
answer certain interrogatories that Park Hotels
Group has refused to answer. The motion is filed
Step 6 Calendar the Deadline on November 1, a Thursday, and a copy is hand
delivered by messenger to the office of Gail Stod-
dard, attorney for defendant Park Hotels Group,
Now the firm’s central calendar needs to be up-
on Friday, November 2. What is the deadline for
dated to reflect the extended deadline date. Be-
Park Hotels Group’s response to the motion?
cause the extension is not effective until the court
approves the stipulation, the central calendar entry 6. Same facts as Exercise 5, except that Shannon’s
will not be changed until that has occurred. Then it lawsuit is pending in the superior court or other
is the docketing clerk who will make the change, not state court in which civil lawsuits would be filed
Chuck himself—in most law firms, authority to in your locality. What is the deadline for Park
make changes to the central calendar is tightly re- Hotels Group’s response? Does it differ from
stricted, for obvious reasons. your answer to Exercise 5? If so, how and why?
7. Assume that Shannon’s lawsuit is pending in the
U.S. district court having jurisdiction over your
Setting Deadlines: locality. On behalf of defendant Dr. Collins,
Roger Yarborough submits written interrogato-
Learning by Doing ries to be answered by Shannon Martin. He
serves the interrogatories by mailing them to
EXERCISES Allen Porter, whose office is in your locality. He
deposits them in the mail on April 5, a Saturday,
In completing these exercises, you should following and Allen Porter’s office receives them in the
the step-by-step formula described in this workshop. morning mail on Tuesday, April 8. What is the
deadline for Porter to serve answers to the in- is the deadline for Gail Stoddard to file a re-
terrogatories on Shannon’s behalf? sponse on behalf of Park Hotels Group if she de-
cides to do so?
8. Same facts as Exercise 7, except that Shannon’s
lawsuit is pending in the superior court or 10. Same facts as Exercise 9, except that Shannon’s
other state court in which civil lawsuits would lawsuit is pending in the superior court or
be filed in your locality. What is the deadline for other state court in which civil lawsuits would
Porter to serve answers to the interrogatories be filed in your locality. What is the deadline for
on Shannon’s behalf? Does it differ from your Allen Porter to file a response on behalf of
answer to Exercise 7? If so, how and why? Shannon Martin? What is the deadline for Gail
Stoddard to file a response on behalf of Park
9. Assume that Shannon’s lawsuit is pending in
Hotels Group if she decides to do so?
the U.S. district court having jurisdiction over
your locality. On behalf of defendant Dr. 11. In Exercise 9, Porter finds that he needs more
Collins, Roger Yarborough files a motion for time in which to prepare a response, so he calls
summary judgment asking the court to find as Roger Yarborough to ask for an extension.
a matter of law that Shannon’s claim against Dr. Roger Yarborough agrees that Porter may have
Collins for battery is invalid. The motion is filed an additional 21 days in which to respond, and
on February 25, a Thursday, and Yarborough’s that Yarborough will then have 30 days in
secretary mails a copy of the motion to Allen which to file and serve a reply. Porter assigns
Porter on the same day. She inadvertently fails you to prepare the necessary paperwork to
to put Park Hotels Group’s copy in the mail that document the extension, which you should do
day, but does so the next day, Friday, February in accordance with the local rules of your U.S.
26. What is the deadline for Allen Porter to file district court and in accordance with custom-
a response on behalf of Shannon Martin? What ary practice in your locality.
PRACTICE POINTERS
Tickler Systems
The importance of adhering to court dates and deadlines established by

the procedural rules cannot be overestimated. Failure to meet these deadlines
can potentially result in the dismissal of a case or a loss of a claim, thereby
causing, at best, a serious breach of confidence with the client and, at worst,
a malpractice claim. Therefore, attorneys and legal assistants must devise ef-
fective ways of ensuring that no deadline is overlooked.
Attorneys have developed various types of tickler systems that either
manually or electronically alert members of the legal team to upcoming dead-
lines. One simple manual form requires you to note the client’s name, the file
number, the action to be completed, and the date it is to be completed on a
tickler form. You then choose at least three dates on which you want to be re-
minded about this task and on each of those dates, the employee in charge of
the tickler system gives you the reminder. This gives you three distinct op-
portunities to begin working on the required task.
Scheduling reminders well in advance of the deadline helps ensure that
you have ample time to complete the necessary work and accommodates for
emergencies that arise that preclude the initial completion of a task. In other
words, tickler systems can prevent crisis management and can encourage the
avoidance of last minute scrambling to meet court deadlines. Computerized
systems can also be set up to give multiple warnings and can even be pro-
grammed to flash upcoming deadlines on your computer screen.
TECHNO TIP
Commercial calendaring programs are Many of today’s personal informa-

now available that seem to do it all. Re- tion managers (PIMs) appear to have the
minders (ticklers) can be set at a variety capability to calculate due dates. Be
of dates prior to the deadline to remind aware! They may not use the same algo-
you of the upcoming response. Be very rithm as set forth in your state’s court
careful when using any piece of soft- rules. They may consider a holiday that is
ware. Never leave it to the program to not recognized by your rules or not con-
determine a deadline. Do the comput- sider one that is a holiday in your state.
ing yourself, without guidance from the PIMs also have reminders that can be set
program, and make sure the software for a fixed number of days prior to the
got it right as well. deadline. Do not rely on them either!
FORMS FILE
Summarize the rules pertaining to the computation of deadlines for

responses to parties served on you by opponents. Include the time period
that applies, what day to begin counting from, and what days to exclude.
KEY TERMS
Deadline Docket Stipulation

Drafting Pleadings:
Responsive Pleadings
WORKSHOP
8
INTRODUCTION: THE ROLE allow to be seized to pay a judgment. In most
OF THE ANSWER states, the loser of a lawsuit is allowed to keep
her house, a car or two, some books, clothing,
We now shift our point of view and examine the be- and tools, and perhaps some cash, up to some
ginning stages of a lawsuit from the standpoint of limited (but usually generous) amount. If every-
the defendant. If you are named as a defendant in a thing that you own falls into one of the exempt
lawsuit, you will quite likely first become aware of it categories (or can be sold or traded for some-
when the summons and complaint are served on thing that does), then quite possibly the only
you. You are going about your normal daily business adverse effects of having a judgment against
one day, and suddenly some stranger walks up to you is that your credit rating will be ruined, and
you and hands you a stack of papers. Congratula- that if you should later find yourself with more
tions! You’re a defendant! Now what? money, you may then be forced to pay (but see
One next step would be to file an answer, in prepa- option 2 next).
ration to defend the suit “on the merits,” and that is On the other hand, if you decide to defend
what you will learn to do in this workshop. When we the suit, you will have to hire a lawyer, which
refer to the merits of plaintiff’s case, we are concerned will probably cost a great deal of money—at
with whether (1) the acts and events plaintiff as al- least thousands of dollars, perhaps tens of
leged in the complaint are legally sufficient to entitle thousands. Faced with a choice between doing
plaintiff to win a judgment against you, and nothing and keeping your assets, or hiring a
(2) whether plaintiff can produce evidence sufficient to lawyer to defend you and having to take out a
prove that those acts and events actually happened. second mortgage on your house to pay him,
what would you do? As you can see, the choice
is not an easy one.
ALTERNATIVES TO FILING
AN ANSWER 2. File for bankruptcy. If you qualify to file for bank-
ruptcy, you can not only keep all of your exempt
Filing an answer is not, however, the only option. Be- property, you can get a discharge in bankruptcy,
fore we immerse ourselves in the details of answer which is a court order by the bankruptcy court
drafting, let us acquaint ourselves with some of the wiping out all of your debts. Not only that, when
other possibilities, so that you can better under- you first file the bankruptcy proceeding, all law-
stand the thought process that a litigator must go suits against you are immediately and automati-
through when a client is sued. Here are some of your cally stayed. (An automatic stay is an order by
other options as a defendant: the bankruptcy court ordering anyone suing you
1. Do nothing, default. You could decide to do noth- to refrain from proceeding further with their
ing—simply ignore the suit. But if you fail to file suit.) Filing for bankruptcy is not free (the cost of
an answer or other responsive pleading, sooner a typical consumer bankruptcy is in the ballpark
or later the person suing you will almost cer- of $1,000 including lawyer fees and court filing
tainly obtain a judgment by default for the full fees) but it is a good deal less expensive than de-
amount he is suing for. fending a lawsuit.
Would that be a bad outcome? Not neces- The bottom line is that unless the person
sarily. Remember that judgments are not self- being sued is either wealthier than the average
executing (see Chapter 5). Suppose you have middle-class American wage earner or is cov-
no assets from which a judgment could be col- ered by insurance, there may be little to be
lected. Are there people in that situation? Yes, gained and much to be lost by filing an answer
many more than you might suppose. The laws and defending.
of most states do not allow the winner of a judg- 3. Seek a Different Forum. If plaintiff’s attorney is
ment to grab everything the loser owns, leaving doing a good job, you may assume that the
her destitute. The judgment debtor—the loser court in which the suit is filed is the one that is
of the suit—is entitled by law to keep certain as- best for plaintiff and worst for you. (See the dis-
sets that are exempt from execution. Exempt cussion of choice of forum in Workshop 2.) Are
property means an asset that the law does not you stuck with the choice? Not necessarily. If
338 WORKSHOP 8 Drafting Pleadings: Responsive Pleadings
plaintiff has filed in state court, and the case receiving the complaint is to contact plaintiff’s at-
qualifies for federal jurisdiction, you may be torney and explore whether there is some way to
able to remove the case to the U.S. district make the suit go away. (Experience teaches that
court sitting in the same state. See Chapter 2 for most lawsuit settlements occur either soon after
a discussion of removal. If plaintiff has filed in the complaint is filed, or not until the case is
U.S. District Court in State X, it may be possible about to go to trial. Can you see why?)
to get the case transferred to the U.S. District A settlement may simply involve defendant
Court for State Y, if the case can be more con- paying plaintiff some money to drop the case,
veniently litigated there. And in a suit that or it may require some much more complicated
could have been brought in more than one deal between plaintiff and defendant. Either
state, there may be ways (beyond the scope of way, the parties avoid the risk, expense, and ag-
this text) to force the suit into the courts of a gravation of litigating on the merits.
different state.
6. Move to Dismiss for Failure to State a Claim.
4. Move to Dismiss for Lack of Jurisdiction, Improper Suppose plaintiff sues defendant for doing
Service, Etc. If you file an answer to the com- something that is not actionable, something
plaint, you are, by definition, addressing the that the law simply does not regard as illegal.
merits of plaintiff’s case. But before the court An example will make this clearer: Wanda
can adjudicate the merits of the case, plaintiff Walker is out taking her daily stroll one day, ac-
must cross a number of procedural hurdles. companied by her best friend Betty. When they
The court must have jurisdiction of the subject finish their walk, Wanda continues down the
matter, jurisdiction of defendant’s person, sidewalk toward her home, while Betty starts
venue must be proper, process must have been across the street in another direction. Sud-
correctly served, any indispensable parties denly, a pickup truck, driven by Dave Drinker,
must be included, and any other procedural careens through a red light, striking Betty and
prerequisites must have been satisfied. killing her in full view of Wanda. Wanda is un-
If procedural defects of this kind occur, de- derstandably distraught and depressed, and
fendant may prefer not to file an answer. There would like to sue. But, according to the law of
is a tendency for judges to interpret the filing of torts in every state of which the authors are
an answer as, in effect, consent by defendant to aware, the law does not make someone who
proceed on the merits. Whether filing an an- causes an accident liable to others who merely
swer constitutes a waiver of jurisdictional and witness the accident, if they are not physically
venue defenses depends on the situation, but injured in some way, or at least threatened
why take the chance if there is some other way with injury.
to raise these defenses? And there is: a motion Suppose Wanda does sue. Must the case go
to dismiss under FRCP, Rule 12. all the way through a trial? No. FRCP, Rule
FRCP, Rule 12(b), authorizes a defendant to 12(b)(6), allows Dave’s attorney to file a motion
file a motion to dismiss instead of an answer, to to dismiss for failure to state a claim on which
raise defenses involving jurisdiction, venue, relief can be granted. In effect, Dave’s attorney
service of process, and failure to join an indis- is saying to the court, “Even if everything hap-
pensable party. We will study motions to dis- pened exactly the way it says in Wanda’s com-
miss in greater detail in Workshop 16, and we plaint, Wanda is still not entitled to judgment.
mention them now merely as a part of our dis- The allegations of Wanda’s complaint, even if
cussion of the various options that a defendant every one of them is true, do not describe
has other than filing an answer. something that the law regards as actionable.”
A defendant who files a motion to dismiss Motions to dismiss of this kind bear a close
under FRCP, Rule 12(b), does not have to file an relationship to motions for summary judgment.
answer until 10 days after the court rules on the We will take up both in much more detail in
motion to dismiss (obviously, there is no point Workshop 14. For our present purposes, it suf-
to dealing with the merits if the whole lawsuit fices merely to be aware that the option exists
might be dismissed); see FRCP, Rule 12(a)(4). to ask the court to decide, before the answer is
And, of course, if the court grants the motion to filed, whether the allegations of the complaint,
dismiss, the lawsuit is over and defendant does if taken as true, describe conduct that the law
not have to answer at all, ever! allows people to sue for.
5. Negotiate a Settlement. In most lawsuits, one of the Must defendant move to dismiss in order to
first things that defendant’s attorney does after raise the defense of failure to state a claim? No,
WORKSHOP 8 Drafting Pleadings: Responsive Pleadings 339
defendant is free to include the defense in her that is purely a side effect, of course! We will con-
answer (and should always do so, as we will sider the ethical implications of delaying tactics, as
shortly see). well as other ethical issues that arise in litigation, in
If defendant does decide to move to dismiss Workshop 19. The delaying game—the litigation
under FRCP, Rule 12(b)(6), for failure to state a equivalent of the four-corner offense—is a tactic
claim, and the court rules in favor of plaintiff, most commonly used by large corporate or govern-
then, as with other motions to dismiss, defen- ment defendants.]
dant has until 10 days after the court’s ruling in If there are legal issues that, if resolved in defen-
which to file an answer. dant’s favor, would end the case, then a pre-answer
motion under FRCP, Rule 12(b), may be the strategy
7. Move for a More Definite Statement. FRCP, Rule
of choice.
12(e), offers still another possible countermove
Finally, if the decision is to seize the bull by the
to someone who has just been sued. If plaintiff’s
horns and get on with defending the suit on the
complaint is so “vague or ambiguous” that de-
merits, the choice will likely be to prepare and file
fendant cannot reasonably be required to re-
an answer.
spond to it, then, instead of filing an answer, de-
Advising a client on the strategy to follow in de-
fendant can ask the court to order plaintiff to
fending a lawsuit obviously requires legal judgment
rewrite the complaint! We will revisit the sub-
and experience of the highest order, and strategic de-
ject of motions for more definite statement in
cisions of this kind must ultimately be made by the re-
Workshop 16.
sponsible attorney. This does not, of course, prevent
Your Local Notes paralegals from participating in such decisions, and
most supervising attorneys will willingly explain the
_________________________________________________ reasons behind a given strategic choice to a paralegal
_________________________________________________ who demonstrates a desire to learn and understand.
Paralegals are often assigned to draft the papers
to implement the choices made by the supervising
attorney. Highly complex answer drafting of the kind
STRATEGIC CONSIDERATIONS needed in, for example, commercial litigation, is
AND THE ROLE OF THE PARALEGAL usually a task for attorneys, but answer preparation
Defendant’s objectives in a lawsuit are (usually) in cases that do not require a deep understanding of
several: some specialty area of the law (routine auto acci-
dent cases, for example) is very definitely a suitable
1. To avoid having to pay money to plaintiff, if
assignment for paralegals. The depth with which
possible;
you understand the purposes of and reasons behind
2. If it is necessary to pay, to delay payment as the tasks that you are assigned will have a strong in-
long as possible; and fluence on how well you do them.
3. To keep the costs of the suit (legal fees, discov-
Your Local Notes
ery costs, etc.) to a minimum.
_________________________________________________
Of the options we have discussed, which best
achieves those goals depends on the circumstances. _________________________________________________
If defendant has no insurance, and has no assets
that could be seized to satisfy a judgment, then, as
we have seen, bankruptcy or simply defaulting may
offer defendant the best outcome. Suits against Answer Drafting:
uninsured individuals often follow this path.
If defendant has a weak case, and the amount of
money at stake is large compared to the legal costs, Just as the complaint is the document that defines
defendant may prefer simply to delay the day of the issues that plaintiff intends to present to the
reckoning for as long as possible, and will do any- court, the answer is the document that defines the
thing that makes the suit take longer. [In theory, it is issues from defendant’s standpoint. An answer is,
against the rules and unethical for an attorney to first and foremost, a point-by-point response to the
make moves in a lawsuit whose only purpose is to allegations of the complaint. FRCP, Rule 8(b), re-
cause delay, see FRCP, Rule 11(b). In practice, litiga- quires the answer to “admit or deny the averments”
tion attorneys can always think of some “legitimate” of the complaint. In the drafting steps discussed
reason for taking any action, and if delay is caused, later, we will see how this is done.
As with complaint drafting, however, we have PREPARATORY STEPS

some homework to do before we can start writing.
We have seen that to draft a proper complaint,
Determine When Responsive
plaintiff must first research the claims that he in- Step 1 Pleading Is Due
tends to assert, so as to be sure of correctly alleging
all of the required elements of each cause of action.
To draft a proper answer, defendant must of course We do not repeat here the details of deadline com-
investigate each of the facts alleged in plaintiff’s putation, a subject on which, after completing
complaint, since FRCP, Rule 8(b) requires defendant Workshop 7, you should now be an expert!
to admit or deny each one. More than this, however, It is worth pointing out, however, that com-
defendant must be able to correctly allege all of the plaints needing to be answered typically arrive on a
required elements of each affirmative defense to be defense attorney’s desk only after being brought in
raised, and to identify any missing elements in by some prospective client—sometimes with only a
plaintiff’s causes of action. The legal and factual re- day or two left before the answer deadline. The
search required in order to prepare an answer is deadline for filing an answer depends on when and
not, therefore, very different from that required to how the complaint was served, facts of which the
draft a complaint. defense attorney has no direct knowledge and
about which clients are notoriously imprecise. The
The Objectives of Answer Drafting—As we defense attorney’s first job, therefore—and the first
proceed to draft an answer, it is important for us to job of an intake paralegal given responsibility for
keep in mind the objectives that we are trying to screening prospective clients—is to nail down the
accomplish when we do so. Let us try to list some answer deadline. The importance of doing so can-
of them: not be overstated.
Often, the easiest way to solve the deadline
1. We wish to avoid a default. Therefore, we must problem is simply to make an agreement with plain-
file an answer at least minimally satisfying tiff’s attorney that the answer will be due on an
FRCP, Rule 8, before the deadline for doing so agreed date. In many jurisdictions, extensions of
has passed. time to file answers are requested and given rou-
2. We wish to avoid setting ourselves up for a quick tinely. The attorneys involved must, of course, take
summary judgment in plaintiff’s favor. There- care to satisfy any formalities required by local
fore, we must take care to offer defenses of some rules in documenting the extension. A caveat: A
kind to each of plaintiff’s causes of action. paralegal should not initiate calls to opposing at-
torneys unless her supervising attorney has specif-
3. We wish to comply with our ethical obligations.
ically authorized it.
Therefore, we must be sure that we have a rea-
Needless to say, once the deadline date has
sonable basis for believing in the truth of what-
been established, it must be entered in the firm’s
ever we assert in the answer.
central calendar and in the calendars of the re-
4. We wish to produce a document that, when sponsible attorney and paralegal.
the judge reads it, will quickly and concisely
convey defendant’s side of the dispute and
Assemble the Basic
enable the judge to discern exactly what are Step 2 Factual Information
the issues on which plaintiff and defendant
disagree.
It is actually possible to draft a reasonably work-
5. We wish to avoid losing any potential defenses able answer to the typical complaint even with rel-
by accidentally leaving them out. Therefore we atively little knowledge of the facts of the case.
must do careful legal research and factual in- Plaintiff has the burden of telling a complete and
vestigation to be sure that we have identified consistent story with sufficient detail to establish a
all of the possible defenses. legally recognized cause of action. Defendant is not
required to provide a counterstory, and is free to
file an answer simply denying everything in the
Your Local Notes
complaint and alleging a generic set of affirmative
_________________________________________________ defenses. This is obviously the easiest way to pre-
_________________________________________________
pare an answer, and avoids the hazard of acciden-
tally admitting some fact that will later turn out to
be damaging.
We do not recommend this approach. In a law-

suit, the attorney who is first to fully grasp the facts
SIDEBAR
of the case and the elements of each cause of action
will have numerous opportunities to “steal the ball” Multiple Parties: Who Are
from an opponent who is operating in the dark. This You Answering For?
is especially true in the growing number of jurisdic-
tions that have adopted rules requiring each side to One of the questions that a defense attorney or
file disclosure statements early in the case. paralegal must address at the outset is “Who
How should a defense attorney or paralegal ap- would I be representing?” It is very common for a
proach the problem of factual investigation? The lawsuit to name more than one defendant, and for
first step, of course, is to obtain as much informa- the needs of various defendants to conflict with
tion as possible from the client. Here are some ex- each other. Accordingly, it is essential that the at-
amples of the kinds of things the defense attorney torney not only run the usual new-client conflict
or paralegal should obtain from the client: check to ensure that the representation does not
create a conflict of interest with existing clients of
■ A complete narrative of what happened; the firm, the attorney must also ensure that he does
■ A clear understanding of whom you are being not create a conflict by agreeing to represent de-
asked to represent (see sidebar); fendants who will potentially need to make cross-
■ Names, addresses, and phone numbers of claims against each other. Multiple-defendant law-
everyone involved; suits can pose knotty ethical problems, which we
■ Names, addresses, and phone numbers of will visit in Workshop 19.
any possible witnesses; and Often, your firm may decide to represent de-
■ A list of all documents that may bear on the fendants A and B, whereas defendants C through
case (with copies, if possible, and leads to fol- Z are represented by other attorneys. Then who
low in obtaining copies, if not). files the answer? Typically, each attorney files a
separate answer for the defendants she is repre-
Obviously, much more information than this will be senting. Instead of being titled simply “Answer” in
needed, depending on the facts and the type of the caption, the document will be titled “Separate
case. As with plaintiff’s attorneys, defense firms Answer of Defendants A and B.” In writing the an-
that specialize in a particular type of case (such as swer, the phrase “these answering defendants”
insurance defense) often use a standard client will be used instead of simply “defendants” (which
questionnaire to be sure that basic facts are not would imply all defendants). Example: “These an-
overlooked. swering defendants deny the allegations of para-
In addition to understanding the factual back- graph 5,” instead of “defendants deny the allega-
ground of the case—the “story”—the defense attor- tions of paragraph 5.”
ney or paralegal has another, more specific task:
that of checking each and every fact alleged in
plaintiff’s complaint. There is a temptation, in an- Decide Whether Anyone
swering the more mundane allegations in a com- Step 3 Else Needs to Be in the Suit
plaint, to simply admit the unimportant-seeming
ones without checking. We recommend that you re- One of the decisions that a defense attorney must
sist the temptation. It is amazing how often some make before answering the complaint is whether
seemingly trivial and insignificant fact later turns there are any claims that should be made against
out to be the very one that blows a huge hole in others who are not parties to the lawsuit. A simple
your case! (We will have a good deal more to say example will help clarify the problem: Your cousin
about the art of admitting and denying facts when Al is trying to buy a car, but, Al’s credit history be-
we study Step 8.) ing what it is, the dealer will not write the loan with-
out a cosigner. You agree to cosign, the loan is
made, and off goes Al with the car. Later (as in-
evitably seems to happen to cosigners) Al falls on
Your Local Notes
bad times and is unable to make the payments. The
_________________________________________________ lender sues you for the money. Your reaction, quite
_________________________________________________
correctly, is “Wait a minute—if I have to pay this, Al
has to pay me.” But Al is not named as a defendant
in the lawsuit. Now what do you do?
You bring Al into the suit yourself, via a third- Research the Elements
party claim. A third-party claim is a claim that you
Step 4 of the Claims to Which
make in your answer against someone who is not You Are Responding
already named as a plaintiff or defendant in the
complaint. We have spent considerable time, in Workshop 1
As to the third-party claim, you are the third- (Claims and Their Elements) and again in Workshop
party plaintiff, and the person you are bringing into 5 (Drafting Pleadings: Complaints), learning to ana-
the suit—Cousin Al, in this case—is the third-party lyze a cause of action or defense in terms of its ele-
defendant. The third-party claim must, of course, ments. Rightly so; claims and elements of claims are
be served on the third-party defendant in the same the basic building blocks with which litigators
way that a complaint would be served, and the work, and almost every task in a lawsuit requires
third-party defendant must file an answer to it. that you understand how to use and analyze them.
The form of a third-party claim is similar to that As we have seen, plaintiff must draft the com-
of a claim in a complaint. It must allege all of the re- plaint in such a way as to allege each element of
quired elements of some cause of action, and in- each cause of action being asserted. If plaintiff is su-
clude an appropriate prayer for relief. Typically, the ing for negligence, for example, then the complaint
third-party claim is tacked on at the end of the an- must allege facts establishing each of the elements
swer. We have purposely omitted any third-party of negligence.
claim from the example answer provided later in The answer is constructed somewhat differ-
this workshop, so as to avoid overly complicating ently. There are essentially three ways in which de-
our introduction to answer drafting. At this stage of fendant can defeat a cause of action asserted by
your paralegal education, we simply want you to be plaintiff in the complaint:
aware that mechanisms do exist for adding new par-
1. If plaintiff’s complaint leaves out a required
ties to the suit—you are not stuck with plaintiff’s
element;
choice of defendants.
2. If plaintiff is unable to prove the facts support-
Your Local Notes ing a required element; and
_________________________________________________ 3. If defendant establishes an affirmative defense.
_________________________________________________ An example will make this clearer. In our hypo,

Shannon is suing Dr. Collins for battery. In Work-
shop 1, we found that the elements of the tort of bat-
tery are (1) an act; (2) which is intended to cause
SIDEBAR harmful or offensive contact; (3) harmful or offen-
sive contact does in fact occur; and (4) damages are
Indispensable Parties proximately caused by the act.
Suppose Shannon, in her complaint, alleged that
Sometimes a claim needs to be made against Dr. Collins committed an act by throwing himself on
someone who is not named in the complaint, but it top of her; that in doing so he caused harmful or of-
is impossible to bring that person into the suit. What fensive contact; and that his act proximately
if, for example, Cousin Al is now living somewhere in caused Shannon to be injured. Is there a problem?
Brazil, address unknown, and you have no way to Yes, indeed; element (2) is missing. Intent has not
serve process on him. In such situations, the judge been alleged. Result? The complaint fails to state a
must decide whether the person to be added is an in- claim on which relief can be granted, and unless the
dispensable party; that is, whether, “in equity and defect is fixed (typically, by amending the com-
good conscience,” a just result cannot be achieved plaint), defendant wins.
without (in our example) Al’s presence in the suit. Now suppose that Shannon properly alleges all
If the judge deems Cousin Al an indispensable four elements of the tort of battery in her complaint,
party, the suit is dismissed; otherwise, the suit sim- but, at trial, is unable to prove that Dr. Collins in-
ply continues against you, without benefit of tended to make physical contact. Suppose, for exam-
Cousin Al’s presence. (How the judge decides this is ple, that Dr. Collins testifies that he simply fell on top
outlined in FRCP, Rule 19, as supplemented by a of Shannon because he was unable to stand up after
good deal of case law. In our example, Al would not being shot, and produces an expert witness who tes-
be considered an indispensable party. Sorry, but a tifies that Shannon’s finger was broken by the recoil
trained paralegal such as yourself should know bet- of the gun. If the jury believes defendant’s evidence,
ter than to act as a cosigner!) then, again, defendant wins because plaintiff has
failed to prove all of the elements of the tort of battery.
Obviously, to know whether plaintiff has from plaintiff’s complaint, except that the title will
missed any required elements of a given cause of now be “Answer,” or, if we represent only Smith and
action, the attorney or paralegal representing de- Jones and there are other defendants as well, “Sepa-
fendant must know what the required elements are. rate Answer of Defendants Smith and Jones.”
If the suit involves routine causes of action (i.e., au-
tomobile negligence) that are already very familiar The Preamble and
and well understood, no actual research may be re-
Step 7 Numbering Systems
quired. In more complicated cases (i.e., commercial
cases), the wise defense attorney or paralegal com- Immediately below the caption, we begin the body
pletes the analysis we learned about in Workshop 1 of the answer. First comes the preamble. Common
before starting to draft an answer. phraseology is “Defendant(s), for his (her, its, their)
answer to plaintiff’s complaint, admits, denies, and
Determine the Elements alleges as follows:” (If we represent less than all de-
Step 5 of the Affirmative Defenses fendants, then we would write: “Defendants Smith
You Intend To Raise and Jones, for their answer to plaintiff’s complaint,
admit, deny, and allege as follows:”) Your instructor
To continue our examination of the three ways in will advise you if some other language is preferred
which defendant can win, let us suppose that Shan- under the customs of your locality.
non properly alleges all four elements of battery in Like complaints, answers are organized in num-
her complaint, and convinces the jury that all four bered paragraphs. In numbering the paragraphs of
have been proved. Now does she win? Not neces- the answer, you are not required to use the same
sarily. Defendant has one more way of defeating numbering system as used by plaintiff in the com-
plaintiff’s claim: Defendant can prove an affirmative plaint—you are free to use your own system. Our
defense. An affirmative defense is a defense that re- preference, for the reasons given in Step 4 of Work-
lies on factual issues not raised in the complaint. In- shop 5, is to use ordinary Arabic numerals at the be-
stead of contesting plaintiff’s facts, it adds some ginning (side) of each paragraph.
new ones. Dr. Collins might, for example, allege and Note that the numbers of the paragraphs of the
prove that he acted in self-defense. Self-defense is answer have nothing to do with the numbers of the
an affirmative defense to the tort of battery. If Dr. paragraphs of the complaint. The paragraphs of
Collins persuades the jury that he acted in self-de- the answer are numbered sequentially; the answer
fense, he wins, even though Shannon has proved will refer to the paragraphs of the complaint by
that he committed battery. number, but its own paragraphs are numbered in
For purposes of drafting an answer, affirmative their own sequence.
defenses work much the same way that causes of
action do in the complaint. Affirmative defenses Your Local Notes
have elements, and defendant must allege facts sup-
_________________________________________________
porting each element in the answer. To do so, it is
necessary to know what the required elements are _________________________________________________
for each affirmative defense being asserted. Again,
the analysis described in Workshop 1 is necessary.
Respond to Allegations
Your Local Notes
Step 8 of Complaint
_________________________________________________ Now we come—at last!—to the part of the answer in
_________________________________________________ which we get to respond to all of the unpleasant
things that plaintiff has said about our client! FRCP,
Rule 8(b), requires us to answer each of the allega-
tions of the complaint. FRCP, Rule 8, gives us essen-
DRAFTING STEPS
tially five tools to use in responding to a paragraph
of the complaint:
Step 6 Prepare the Caption 1. We can deny the whole paragraph.
2. We can admit the whole paragraph.
In Workshop 4, we learned how to prepare the formal
parts of a court paper: the caption, date and signa- 3. We can admit part and deny part.
ture lines, and certificate of service. Our answer will 4. We can state that we are “without knowledge or
use what we prepared. The caption will be copied information sufficient to form a belief as to the
truth” of the paragraph, which, under FRCP, ascertaining it. Defendant Arthur Collins caused
Rule 8(b), has the same effect as a denial. an act or event to occur in the state of Nevada
out of which plaintiff’s claims arose.
5. We can, after admitting or denying, allege
something new if we need to in order to get an Remember, we represent Park Hotels Group, Inc. Our
important point across. client does not have a clue about whether Dr. Collins
is married, and if so to whom. As for whether Dr.
Now let us try a few examples and see how we
Collins did something in Nevada out of which plain-
might use these tools.
tiff’s claim arose—that is what the whole lawsuit is
Example 1: A Simple Admission—In the exam- about, so we certainly aren’t about to admit that! On
ple complaint that we presented in Workshop 5 (see the other hand, we really have no factual basis to
Figure W5 –1), paragraph 1 alleged: deny these things, either. What do we do? This is a
perfect opportunity to use the tool that FRCP, Rule
1. Plaintiff Shannon Martin is a resident of 8(b), gives us, which allows us to deny on account of
Maricopa County, Arizona. lack of knowledge. (Notice that we use the exact lan-
Suppose we represent defendant Park Hotels guage of Rule 8 in phrasing the reason for our denial.)
Group, Inc. How would we answer this paragraph? 2. Answering paragraph 2, defendant Park
First, if we are doing our job properly, we would Hotels Group is without knowledge or
find out whether Shannon Martin is indeed a resi- information sufficient to form a belief as to the
dent of Maricopa County, Arizona. (Why? For one truth of the allegations of said paragraph, and
thing, if she turned out not to be an Arizona resi- therefore denies them.
dent, the U.S. district court’s jurisdiction might be
(Some drafters would say “this answering defen-
affected. We reiterate the importance of checking
dant” instead of “defendant Park Hotels Group”; we
every fact.) Suppose we conclude that, yes, para-
prefer to avoid depersonalizing our own client
graph 1 is true, and we decide to admit it. (Should
whenever possible.)
we? See sidebar.) What language do we use to ex-
press our admission? The following is customary:
1. Answering paragraph 1, admits the
SIDEBAR
allegations thereof.
To Deny or Not to Deny?:
Who admits the allegations thereof? The preamble
supplies the subject of the sentence: defendant Park That Is the Question
Hotels Group. Where appropriate (see Example 3) What do we do with facts that we are sure
we will specify. plaintiff can prove?
Example 2: A Simple Denial—Now suppose This question brings up one of the ways in which
that, instead, we decided to deny paragraph 1. the styles of litigators differ. Some litigators prefer an
What would we write? aggressive style—deny everything! Make plaintiff
prove it! Defendant has (in theory) the right to make
1. Answering paragraph 1, denies the plaintiff prove every single fact, however obvious,
allegations thereof.
and some litigators would say “Why give anything
No surprises here. away?” After all, if we make plaintiff spend energy
and money proving the obvious, plaintiff will have
Example 3: A Denial for Lack of Information— that much less energy and money to spend proving
Having disposed of paragraph 1, let us attack para- facts that might really hurt our case!
graph 2 of the example complaint from Workshop 5. Other litigators would prefer to concede the
It alleges: facts that the opponent will clearly be able to prove
2. Defendants Arthur Collins and Jane Doe anyway, and save their ammunition for the truly con-
Collins are residents of Dallas County, Texas. tested issues. Our own preference tends toward the
Defendant Jane Doe Collins is the wife of latter view, in part because excessive contentiousness
defendant Arthur Collins. At all times material over trivia has a way of annoying judges and juries.
hereto, defendant Arthur Collins acted both
Deciding where along the scale of provability
individually and on behalf of the marital
community consisting of defendants Arthur the line should be drawn is a judgment call, and
Collins and Jane Doe Collins. Plaintiff does not not always an easy one. Most litigators would
know the true identity of defendant Jane Doe choose to err on the side of caution—if there is any
Collins, and will seek leave to amend her doubt, and especially if the fact is harmful, deny.
complaint to reflect such true identity after
Example 4: Answering Several Paragraphs at locked the door of her room. Defendant Arthur
Once—We are not restricted to answering plain- Collins, a stranger to plaintiff, using a key
tiff’s complaint one paragraph at a time. Where con- provided by defendant Banbury Park Hotel,
venient, we may lump several paragraphs together. entered plaintiff’s room, stood at the foot of
Here is another way that we might have answered plaintiff’s bed, and began removing his clothes.
paragraphs 1 and 2: Obviously, if we represent Park Hotels, we will deny
1. Answering paragraphs 1 and 2, defendant everything in this paragraph, but we would also like
Park Hotels Group is without knowledge or to get across the idea that we gave Dr. Collins the
information sufficient to form a belief as to the key to his own room, not the key to Shannon’s
truth of the allegations of said paragraphs, and room. Here is one way:
therefore denies them.
5. (or whatever number we are up to)
Why would we want to do this?: At the risk of repe- Answering paragraph 6, defendant Park Hotels
tition, the main purpose of every written submission Group denies that defendant Arthur Collins
to the court is to advocate our client’s cause to the used a key provided by Banbury Park Hotel to
reader. Space wasted on endless single-paragraph enter plaintiff’s hotel room, and alleges that
the only key provided by Banbury Park Hotel
denials is space that we cannot use to say some-
to defendant Arthur Collins was the key to his
thing that might advance our own case. own room, and that said key was not capable
Notice that, since we answered paragraphs 1 of being used to unlock the door to plaintiff’s
and 2 of the complaint in paragraph 1 of the answer, hotel room. Defendant Park Hotels Group is
the next paragraph of the answer will be paragraph without knowledge or information sufficient to
2, even though we will use it to answer paragraph 3 form a belief as to the truth of the remaining
of the complaint. allegations of said paragraph, and therefore
denies them.
Example 5: Admit in Part, Deny in Part—The
third paragraph of our example complaint alleges: Notice how, by including an allegation of our own,
we begin educating the reader about our own ver-
3. Defendant Park Hotels Group (hereinafter sion of the facts (see sidebar).
“Hotel”) is a corporation organized and existing
under the laws of the state of Delaware, and
doing business in the state of Nevada out of
which plaintiff’s claim arose. SIDEBAR
We (representing Park Hotels Group) agree that we
are a Delaware corporation and that we do business
Getting Our Own Story Told
in Nevada, but we are certainly not going to admit You may be wondering where, exactly, is the
that plaintiff’s claim arose from anything we did. part of the answer where we get to tell defendant’s
(The problem is not that the legal issues would be af- side of the story? Unfortunately, the rules, as usu-
fected by our doing so—they would not—the prob- ally interpreted, do not allow us a General Allega-
lem is that pleadings can be read to the jury and we tions section of the kind that we used in the com-
do not want to give plaintiff any opening to imply plaint (unless we assert counterclaims, in which
that we admitted fault.) Therefore, we respond: case we would write the counterclaim section in
2. Answering paragraph 3, defendant Park much the same way as if we were writing a com-
Hotels Group admits that it is a corporation plaint). In the answer proper, we are limited to re-
organized and existing under the laws of the sponding to the allegations made by plaintiff.
state of Delaware, admits that it does business How, then, do we communicate our client’s ver-
in the state of Nevada, and denies that plaintiff’s sion of the facts?: Mainly, by including explanatory
claim arose from the business done by it.
allegations of the kind used in Example 6. One
word of caution: An answer is supposed to give our
Example 6: Admit/Deny Plus Add New Alle- client’s version of the facts, not present evidence.
gations—Now let us try a more challenging exam- We might be tempted, for example, to mention that
ple, using paragraph 6 of the example complaint the police investigation showed that the key in Dr.
from Workshop 5. The paragraph we are answering Collins’s possession was the key to his own room.
alleges: Should we? How far one should go down this road
6. At approximately 1:15 A.M. on the morning is a judgment call, and varies with local custom.
of February 6, 1996, plaintiff Shannon Martin was Your instructor will advise you on the level of advo-
asleep in her hotel room at the Banbury Park cacy considered proper in your locality.
Hotel. Prior to retiring, plaintiff closed and
claiming self-defense, without having to look else-

Your Local Notes
where in the file for the facts:
_________________________________________________
13. (or whatever the next number is)
_________________________________________________ Plaintiff aimed her pistol in the direction of
defendant Dr. Arthur Collins and fired, striking
him in the abdomen and critically injuring him.
Using the techniques you have just learned, we Only then, confronted by plaintiff’s evident
go through the complaint paragraph by paragraph, intention to continue firing her pistol at him, did
defendant Dr. Arthur Collins attempt to take
responding to each one, until we reach the end. At
plaintiff’s pistol from her.
the end of the complaint, we come to the prayer for
relief—do we admit or deny it, too? No, we will pre- 14. In using physical force against plaintiff,
sent our own prayer for relief at the end of our an- defendant Dr. Arthur Collins acted for the
swer. Before doing so, however, we have a few other purpose of defending himself against plaintiff,
details to take care of. who was at the time brandishing and
repeatedly firing a pistol with the evident
intention of injuring or killing him. The acts of
Step 9 Include the Boilerplate Defenses plaintiff in doing so were not privileged.
Defendant Dr. Arthur Collins did not intend to
cause death or serious bodily harm to plaintiff,
and used force which was reasonable in the
We have now responded to every allegation of the circumstances and was not likely to cause
complaint. Or did we? We responded to every para- death or serious bodily harm.
graph, but what if, while we were doing all of this ad-
mitting, denying, and alleging, we accidentally over- If we have other affirmative defenses, we in-
looked some phrase somewhere? FRCP, Rule 8(d), clude them in sequence.
says that allegations are deemed “admitted when not
denied in the responsive pleading.” We don’t want to Your Local Notes
risk that, so we protect ourselves with the following, _________________________________________________
which should be included in every answer:
_________________________________________________
10. (or whatever number we are up to)
Defendant Park Hotels Group denies each and
every allegation of plaintiff’s complaint not
expressly admitted herein.
Step 11 Include a Boilerplate Defense
Include Specific
Step 10 Affirmative Defenses There is one defense that we include in every an-
swer: failure to state a claim. Why? Actually, it is not
At this point, we have taken care of the elements of necessary to do so for legal reasons—the defense is
the causes of action alleged by plaintiff; now we not waived if we leave it out; see FRCP, Rule 12(h)(2).
need to allege our affirmative defenses. We have al- It is, however, customary. A standard boilerplate
ready done our research to determine what the ele- paragraph suffices:
ments are of each affirmative defense that we in- 15. Plaintiff’s complaint fails to state a claim
tend to raise, if any. This is the place in the upon which relief can be granted.
complaint at which we do so. Depending on local
custom, we may begin with a new section heading, There are other defenses that can be lost if omit-
Affirmative Defenses, or we may use a new heading ted from the answer. FRCP, Rule 8(c), requires an an-
for each affirmative defense; paragraph numbering, swer to “set forth affirmatively” any of the defenses
however, continues in sequence. listed in the rule.
It is wise to use FRCP, Rule 8(c), as a checklist
Example—Here are two paragraphs alleging self- of common defenses when deciding which de-
defense as they might appear in Dr. Collins’s an- fenses to raise in the answer; any Rule 8(c) de-
swer. (See Workshop 1 for the elements of the affir- fenses that have particular applicability to our
mative defense of self-defense.) Notice how we case should be alleged separately, with enough
begin by taking the opportunity to tell part of our facts to explain how they apply. What about those
story, so that anyone (i.e., the judge) skimming our defenses that do not seem germane? Most litiga-
answer will immediately understand why we are tors, probably out of an excess of caution, include
a boilerplate paragraph listing them, so as to avoid

Your Local Notes
any possible waiver. Whether the tactic works is
debatable (we would be skeptical) but it is, again, _________________________________________________
commonplace. Here is a typical Rule 8(c) para- _________________________________________________
graph (do not be surprised if you have never heard
of most of these defenses):
16. At this early stage of the case, defendant
Park Hotels Group is unable to determine the Plead Counterclaims
applicability of the defenses enumerated in Step 13 and Cross-Claims
FRCP, Rule 8(c), but intends to preserve those
defenses to the extent they should be deemed
pertinent, and therefore affirmatively alleges So, we’re done, right?
the defenses of accord and satisfaction, Not so fast. Remember, the best defense is often
arbitration and award, assumption of risk, a good offense. Why settle for dodging the other
contributory negligence, discharge in guy’s bullets when you could be shooting a few back?
bankruptcy, duress, estoppel, failure of This is the point in our thought process where
consideration, fraud, illegality, injury by fellow we consider what claims of our own we might have
servant, laches, license, payment, release, res against the plaintiff, or other defendants. If we have
judicata, statute of frauds, statute of limitations,
any claims that we could bring against plaintiff in a
and waiver.
separate suit, we can assert them here and now
(We would suggest removing from the list any de- (and must do so if they are transactional; see side-
fenses that you are alleging separately in another bar). Likewise, if we have transactional causes of
paragraph, and any that obviously could have no action against other defendants, we can (but are
possible bearing on your case.) not required to) assert them as cross-claims.
What about jurisdictional defenses? Are we for- From the drafter’s standpoint, counterclaims
getting something?: No, if we intend to claim that and cross-claims are written and organized exactly
the court does not have jurisdiction, we can best do as a complaint would be written (but without undue
so via a motion to dismiss, which we would file and belaboring of facts already alleged in the complaint
have heard before filing the answer. or in the first part of the answer). Counterclaims
and cross-claims are tacked on at the end of the an-
swer, rather than put into a separate filing. (In the
caption, we title the document “Answer and Coun-
Your Local Notes
terclaim” or “Answer and Cross-claim” instead of
_________________________________________________ merely “Answer.”) But in general, to write a coun-
_________________________________________________ terclaim, we write exactly what we would write if we
were drafting the body of complaint on behalf of the
defendant and against plaintiff—including prayer
for relief—and we copy-type it on to the end of the
answer (after the answer’s prayer for relief but be-
fore the signature lines).
Step 12 Prayer for Relief
The only problem that arises in approaching
the problem this way is that, technically, the parties
We have now finished the main part of the answer. are referred to differently when we are talking about
Next comes the prayer for relief. Here is typical a counterclaim or cross-claim. In a counterclaim, if
verbiage (consult your instructor for any local we wish to be excruciatingly proper, defendant—
preferences): the person who is asserting the counterclaim—be-
comes the counterclaimant, and the plaintiff is re-
WHEREFORE, having fully defended, ferred to as the counterdefendant. Similarly, in a
defendant Park Hotels Group, Inc. prays that
cross-claim, the defendant who is asserting the
plaintiff’s complaint be dismissed, that plaintiff
take nothing thereby, for defendant’s costs and claim is the cross-claimant and the other defendant
attorney’s fees incurred herein, and for such against whom it is asserted is the cross-defendant.
other and further relief as to the Court seems All of this properness has the unfortunate side ef-
just in the premises. fect of making it nearly impossible for someone
reading the answer to figure out who is doing what
(Yes, we know; it is a bit flowery for our tastes, too. to whom, and our preference would therefore be to
But—all together, now—it’s customary!) refer to the parties as before, always including their
names, for instance, “defendant Arthur Collins” and Answers are always signed by the attorney for
“plaintiff Shannon Martin” rather than “counterdefendant (see FRCP, Rule 11), never by the actual
claimant” and “counterdefendant”—even at the risk defendant unless some specific statute or rule re-
of being slightly improper. (Local custom may dic- quires it. (Nowadays, in most jurisdictions, re-
tate a different conclusion.) quirements for defendant to sign or “verify” are
No special effort is required to serve a counter- rare.)
claim; plaintiff is already a party to the suit, the
counterclaim is part of the answer, so simply mail- Your Local Notes
ing or delivering the answer to plaintiff’s attorney
suffices. The same principle applies to cross- _________________________________________________
claims; merely serving the answer on the other par- _________________________________________________
ties is all that is required.
Your Local Notes

CONCLUDING STEPS
_________________________________________________
Our drafting complete, we print our answer (or
_________________________________________________
send it to word processing to be typed). When it is
ready, we begin preparing to send it to the opposing
parties.
Date, Signature, Certificate
Step 14 of Service, Verification
SIDEBAR
Now we are, at last, done. The finishing touches—
date, signature line, and certificate of service— Replies to Counterclaims
are the same as for any other court paper (see If there are no counterclaims or cross-claims,
Workshop 4). then the pleading process is over when the answer
is filed. Even if plaintiff disagrees with the things
defendant says in the answer (as most plaintiffs
SIDEBAR do), plaintiff does not get to file a rebuttal. Ac-
cording to FRCP, Rule 7(a), “there shall be a com-
Compulsory Counterclaims plaint and an answer,” and that’s all—no other
pleading is allowed.
What if Dr. Collins prefers to press his cause of If, however, defendant has asserted a counter-
action against Shannon for battery by filing a sep- claim, FRCP, Rule 7(a), requires plaintiff to file a re-
arate suit against Shannon, instead of using it as a ply to it. The reply is like a “mini-answer” directed
counterclaim in her suit? May he do so? at the counterclaim. It is written in exactly the same
FRCP, Rule 13, is the rule that governs counter- way that an answer would be written, admitting
claims and cross-claims. If plaintiff’s cause of action and denying the paragraphs of the counterclaim.
against defendant and defendant’s cause of action (Only the counterclaim—the reply does not attack
against plaintiff both arise from the same factual the rest of the answer.)
setting, they are said to be transactional; that is, Drafting a counterclaim is like drafting a com-
in the words of FRCP, Rule 13, they arise from the plaint by the defendant against the plaintiff; draft-
same “transaction or occurrence.” ing a reply is like drafting an answer to it. If you
Any transactional claims that defendant has know how to draft an answer, you know how to
are considered compulsory counterclaims, and will draft a reply to a counterclaim!
be lost if not raised in the existing lawsuit. Dr.
Collins’s battery claim is, of course, transactional
because it arises from the same fact background as
Shannon’s claims. Therefore, it is a compulsory Your Local Notes
counterclaim, and Dr. Collins must litigate it as a _________________________________________________
counterclaim in this lawsuit. If he fails to do so his
_________________________________________________
claim will be barred forever when this lawsuit is over.
liability insurance, its next step will be to contact

Step 15 Accuracy Check and Revisions
the insurance carrier. The insurance carrier will be
obligated to defend the suit on behalf of Park Hotels
First, we give it a careful read for accuracy. Have we and will choose an attorney. Most insurance com-
spelled the names—especially our client’s name— panies have ongoing relationships with defense at-
correctly? (We used a spell-checker, of course, but torneys in each city, and work with the same attor-
proper names may still be spelled incorrectly.) neys almost exclusively. (For a defense attorney in
Have we double-checked every factual statement need of cases to defend, insurance companies are
for accuracy? Made sure we have included all of the the mother lode, so to speak, and slots in a major in-
defenses that we intended to? Read every sentence surance company’s stable of attorneys are highly
to be sure each is grammatically correct and, more coveted.) If Park Hotels does not have liability in-
importantly, easy to follow and understand? surance (some companies self-insure) management
Next, we have our client read the draft, with in- will find and hire an attorney to defend the suit,
structions to call our attention to any inaccuracies. probably with advice from their regular attorneys.
Clients are sometimes reluctant to give this task the In our hypo, Park Hotels hires Gail Stoddard.
time and attention it requires; if necessary, we must She could probably determine the exact date of ser-
insist, or read the answer with them. vice by checking with the designated agent on
When we are sure that we have produced a high- whom the complaint was served. More likely, how-
quality product, we have our answer reprinted in fi- ever, she will simply telephone Allen Porter, and an
nal form and pass it to the supervising attorney for answer date will be agreed on.
her signature. Then it is ready for filing and service.
Assemble the Basic
Step 2 Factual Information
Step 16 File and Serve
Gail Stoddard (and her paralegals) must now inform
themselves of the facts of the suit. They will assem-
Usually, we will have a process server or messenger
ble as much documentation as is available by ob-
take the original answer to the clerk of the court for
taining police reports and any records kept at the
filing. Many courts charge a filing fee for filing an an-
hotel, and will schedule interviews with the key
swer, and the firm’s check in the required amount
Park Hotels employees.
accompanies the filing.
Answers are served in the same way as other
court papers subsequent to the complaint (see Decide Whether Anyone Else
Step 3 Needs to Be in the Suit
Workshop 7). Typically, a copy will be mailed or
hand delivered to plaintiff’s attorney, and to each
attorney representing any of the other defendants. Who else might Park Hotels Group consider bring-
ing into the lawsuit? Certainly, they want Dr. Collins
present, but plaintiff has already named him as a
Answer Drafting: party. Who else? Investigation will be required.
Possibilities include the manufacturer of the door
Learning by Example lock (it might be defective; remember, Park Hotels
likely does not know about Arnie Trevayne switch-
We will now use what we have learned to draft an ing the keys); perhaps the contractor who installed
answer on behalf of our hypothetical defendant, it (it might have been installed wrong); conceivably
Park Hotels Group, Inc. the desk clerk, Arnie Trevayne (but not very likely,
since Park Hotels will not want to risk losing con-
PREPARATORY STEPS trol of him by having him represented by some
other attorney). Unfortunately for Park Hotels, the
Determine When Responsive chances of finding someone else to blame Shan-
Step 1 Pleading Is Due non’s injuries on seem scarce in the circumstances
of this hypo.
In the circumstances of our hypo, Park Hotels
Group, Inc., will likely learn of the suit when its des- Research the Elements
ignated agent is served and forwards the complaint
Step 4 of the Claims to Which
to the corporation’s management. If Park Hotels has You Are Responding
Determine the Elements DRAFTING STEPS

Step 5 of the Affirmative Defenses
You Intend To Raise The finished product is shown in Figure W8–1. Park
Hotels Group, Inc., has no obvious counterclaim to
In a typical insurance defense firm, research as- assert. A cross-claim for indemnification against
signments are given to new attorneys in their first Dr. Collins might be included, claiming, in effect,
year or two of practice. One of Crandall, Elkins as- that if Park Hotels Group is found liable to plaintiff,
sociate attorneys will be assigned to research plain- then Dr. Collins is liable to reimburse Park Hotels
tiff’s claims and any defenses that suggest them- Group since he is the one who actually injured
selves, and will write a memorandum summarizing plaintiff. In the interest of not overly complicating
his findings. this introductory discussion, we elect not to in-
clude such a cross-claim.
Figure W8–1 A Sample Answer

DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX RGS
Plaintiff, )
) SEPARATE ANSWER OF
vs. ) DEFENDANT PARK
) HOTELS
) GROUP, INC. AND
) CROSS-CLAIM
corporation; )
)
Defendants. )
_______________________________________________ )
Defendant Park Hotels Group, Inc., for its separate answer to plaintiff’s complaint, admits, denies,
and alleges as follows:
1. Answering paragraphs 1 and 2, defendant Park Hotels Group, Inc. is without knowledge or
information sufficient to form a belief as to the truth of the allegations of said paragraphs, and
2. Answering paragraph 3, admits that it is a corporation organized and existing under the laws
of the state of Delaware, admits that it does business in the state of Nevada, and denies that plaintiff’s
claim arose from the business done by it.
3. Answering paragraph 4, defendant Park Hotels Group, Inc. is without knowledge or
information sufficient to form a belief as to the truth of the allegations of said paragraph, and therefore
denies them.
4. Answering paragraph 5, admits the allegations thereof.
5. Answering paragraph 6, denies that defendant Arthur Collins used a key provided by Banbury
Park Hotel to enter plaintiff’s hotel room, and alleges that the only key provided by Banbury Park Hotel
to defendant Arthur Collins was the key to his own room, and that said key was not capable of being
used to unlock the door to plaintiff’s hotel room. Defendant Park Hotels Group, Inc. is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations of said
paragraph, and therefore denies them.
Figure W8–1 A Sample Answer, continued
6. Answering paragraphs 7 and 8, defendant Park Hotels Group, Inc. is without knowledge or
information sufficient to form a belief as to the truth of the allegations of said paragraphs, and
7. Answering paragraphs 9 through 17, inclusive, denies the allegations thereof.
8. Answering paragraph 18, defendant Park Hotels Group, Inc. admits that it had a duty of
reasonable care toward plaintiff as it does to all hotel guests, and alleges that it fully complied with said
duty. Defendant Park Hotels Group, Inc. denies the remaining allegations of paragraph 18, denies that
it breached any duty toward plaintiff, specifically denies that it in any way allowed defendant Collins to
gain possession of a key capable of operating the lock of plaintiff’s room, and alleges that it at all
material times acted properly and with due care.
9. Answering paragraphs 19 through 21, inclusive, denies the allegations thereof.
10. Defendant Park Hotels Group, Inc. denies each and every allegation of plaintiff’s complaint
not expressly admitted herein.
AFFIRMATIVE DEFENSES
11. Plaintiff’s complaint fails to state a claim upon which relief can be granted
12. At this early stage of the case, defendant Park Hotels Group, Inc. is unable to determine the
applicability of the defenses enumerated in FRCP, Rule 8(c), but intends to preserve those defenses to
the extent they should be deemed pertinent, and therefore affirmatively alleges the defenses of accord
and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.
WHEREFORE, having fully defended, defendant Park Hotels Group, Inc. prays that plaintiff’s
complaint be dismissed, that plaintiff take nothing thereby, for defendant’s costs and attorney’s fees
incurred herein, and for such other and further relief as to the Court seems just in the premises
DATED this _____ day of _________________________, 2000.
Gail Stoddard
Attorney for defendant
(Certificate of service goes here—see Workshop 4 for details.)
CONCLUDING STEPS Answer Drafting:

The answer now complete, Gail Stoddard checks it Learning by Doing
for accuracy and faxes it to Park Hotels Group
management for their review. When any necessary You have seen how Park Hotels Group might answer
corrections have been completed, she signs the Shannon’s complaint; now it is your turn. Assume
answer and turns it over to her legal secretary, that you are a paralegal in the office of Roger
who arranges for filing and delivery to the oppos- Yarborough, who represents defendant Collins. He
ing attorneys. hands you a copy of Shannon’s complaint (see
Workshop 5) and assigns you to draft an answer on
behalf of Dr. Collins.
EXERCISE
In carrying out this assignment, you should follow steps 2 through 5, make use of the work that you did
the step-by-step formula described in this work- in completing Workshops 1 and 3. For steps 6 and
shop. You may skip Step 1 because we covered 14, use the form you prepared in Workshop 4.
deadline problems separately in Workshop 7. For
PRACTICE POINTERS
Working with Clients
Not infrequently, clients become very distraught during the litigation

process. One of the greatest assets a legal assistant can bring to a law firm is
an ability to manage difficult or emotionally volatile clients. Attorneys often
have neither the time, desire, nor ability to handle such clients and gladly de-
fer to someone with superior human relations skills.
Particularly in a defense practice where attorneys have less control over
the litigation process than do their plaintiff counterparts, attorneys often have
all they can manage to adhere to deadlines and complete their legal work in a
timely basis. They do not have time as well to wrestle with the emotional ups
and downs of their clients. Some attorneys find client relations one of the most
trying and frustrating of their responsibilities and will do everything possible
to insulate themselves from clients. Additionally, clients who find themselves
to be defendants are frustrated and angry at having been sued and expect the
law firm not only to represent them but to be available to answer their con-
cerns and to listen to them as they vent their feelings.
Since the attorney is more often than not unavailable to fulfill this role, the
legal assistant often finds herself serving as the caretaker of the client. Good
client relations often involve going beyond simply answering questions. It is
being there to listen as the clients explain (yet one more time) why they feel
a particular way, why they think they have been wronged, and why they be-
lieve the legal system is unjust. It means cultivating the patience that allows
you to take the time to bolster client morale and encourage their persever-
ance when you would really like to spend that time meeting your own dead-
lines and tending to other tasks that demand your attention. It means an-
swering client calls promptly even when you know what awaits you on the
other end of that line.
This nonglamorous aspect of being a legal assistant is rarely addressed by
legal textbooks but is an issue of which every practitioner is aware. Mastery
of the art and science of client management is what separates the mediocre
legal assistants from the really great ones and what makes some legal assis-
tants such invaluable assets to their firms. To include yourself among this rar-
efied category of legal assistants, consider taking human relations and com-
munications courses to begin developing these skills now. As importantly,
seek out those who have a reputation for dealing effectively with others and
find out their secrets. Then begin practicing now—with family members,
friends, customers, or anyone who challenges your ability to remain calm and
focused. Remember that you are developing a lifelong skill that will serve you
no matter what your profession.
TECHNO TIP
Setting up a pleadings page for use with paper. Using your word processor’s line
line numbers is a difficult task. Prior to number function, and most popular
the use of computers the law firm’s word processors have them, is quite
name was set out in the left-hand mar- complicated. The caption is usually sin-
gin in portrait format on a preprinted gle spaced, the body of the pleading, ex-
page. Often two thin lines would appear cept for quotes is usually double spaced.
to the right of the law firm’s name to Charts, graphs, and other graphics are
separate the name and address from the often not defined in line space terms. To
body of the pleading. In many forms, generate a pleading page with line num-
line numbers, double spaced, would ap- bers in other than double-spaced text is
pear just to the left of the two thin lines. beyond the capabilities of most students,
When the information was typed on the legal secretaries, and all but the most
form, the typist lined up the line num- knowledgeable users (of which group
bers with the typed information. the authors are not).
With the advent of computers and The authors are not aware of any
word processors the use of preprinted court that requires line numbers on
forms waned. Printers were designed pleadings. Most require only a certain
that could print in portrait and landscape minimum font size, predefined mar-
mode on the same page, at the same gins, and a page limitation. If line num-
time. Traditionalists wanted to keep the bers are absolutely required by your
same look and wanted to print the plead- firm, ask if you can use preprinted
ing on plain paper and end up with the pleading pages. Hopefully line number-
same format as when using preprinted ing will not be required.
FORMS FILE
Include samples of the following in your forms notebook:

■ An answer, including affirmative defenses
■ An answer with counterclaims and cross-claims
■ An answer with third-party claims
■ A reply to a counterclaim
KEY TERMS
Automatic stay Cross-claimant Indispensable party

Compulsory counterclaims Cross-defendant Merits
Counterclaimant Discharge in bankruptcy Transactional
Counterdefendant Exempt property
Introduction to the
Discovery Workshops
Discovery refers to a set of procedural tools that we DISCOVERY REFORM AND

can use to extract information from unwilling or re- MANDATORY DISCLOSURE
luctant sources, including our opponent. What
kinds of information? The last decade has seen the emergence of a reform
movement advocating “disclosure-centered” dis-
■ We can use discovery to gather the items of covery, in which parties are required to disclose in-
evidence that we will need to prove our case, formation voluntarily without waiting for a request.
or to disprove our opponent’s case. The traditional discovery tools are still made avail-
■ We can use discovery to obtain other infor- able, but their use is greatly restricted so as to re-
mation that might help us find the evidence duce costs. To understand what is going on, we need
that we need. to understand what the reformers are trying to ac-
■ We can use discovery to find out about our complish; for that, we need some background.
opponent’s case, and what our opponent When the Federal Rules of Civil Procedure were
plans to present at trial, so that we can better adopted in 1938, the discovery rules that they em-
prepare to rebut it. bodied were seen as a radical change from prior
practice. Before the federal rules, a party needing in-
What, exactly, are these tools? As we will see,
formation or evidence from an opposing party could
discovery in American courts has traditionally been
generally get it only by filing a motion and obtaining
“request centered”—when a party wants some
a court order. This state of affairs was wasteful and
piece of information, he or she must request it. The
inefficient and—perhaps most importantly in terms
procedural tools most frequently used for doing so
of getting the rules changed—tedious for judges.
are these:
With the adoption of the federal rules, the pen-
■ The request for production of documents dulum swung hard in the opposite direction. Now lit-
(FRCP, Rule, 34) allows us to obtain docu- igants could, in effect, write their own tickets. Instead
ments that are in the possession of an oppos- of needing a motion and a court order to make an op-
ing party. The subpoena duces tecum allows ponent cough up a document or answer a question,
us to obtain documents from persons that are all that would be needed was a written request,
not parties to our lawsuit. signed by the requesting attorney, which would be
■ Interrogatories (FRCP, Rule 33) are written enforceable as though it were a court order!
questions that we can submit to an opposing The federal rules contemplated “open” discov-
party, who must then provide written an- ery. Litigants could ask for—and opponents would be
swers to them. Requests for admissions required to turn over—not only evidence, but, in the
(FRCP, Rule 36) allow us to try to extract ad- words of FRCP, Rule 26, anything “reasonably calcu-
missions from an opposing party. lated to lead to admissible evidence.” Open discov-
■ Depositions (FRCP, Rule 30) provide a means ery, however, brought with it its own set of problems.
of taking and recording testimony from po- In the first place, it could easily be used as a tac-
tential witnesses. tical weapon. Litigators became adept at creating
discovery requests whose real purpose was not to
■ Independent medical examinations (FRCP, obtain useful information, but rather to force an op-
Rule 35) allow us to have a physician of our ponent to expend huge quantities of money and le-
choice examine an opposing party (commonly gal talent compiling the data requested. Another
used by defendants in injury cases as a way of problem was that lawyers were almost forced to
verifying the extent of plaintiff’s injuries). carry open discovery to its limits. If the rules allow
Although there is some local variation, the mechan- us to fish through every single record that an oppo-
ics and procedural paperwork involved in using nent has ever committed to paper in the last decade,
these discovery tools is essentially the same in most can we safely stop short of doing so? Or would it be
American jurisdictions. malpractice to leave any stone unturned?
356 WORKSHOP Introduction To The Discovery Workshops
By the 1970s and 1980s, in the view of many the discovery provisions of the Federal Rules of
judges, the discovery tail was clearly wagging the dog. Civil Procedure. Under the 1993 amendments:
The cost of discovery in a typical lawsuit was all out
■ Each party to a lawsuit would be required,
of proportion to its contribution to the justness of the
prior to a deadline set within a few months of
outcome. What could be done, short of requiring
the beginning of the suit, to make initial dis-
judges to micromanage the discovery in each lawsuit?
closures of several categories of information,
A few progressive courts experimented with ten-
including “all documents . . . in the posses-
tative, and usually minor, changes. A typical one con-
sion, custody, or control of the party that are
sisted of limiting the number of interrogatories al-
relevant to disputed facts alleged with par-
lowed. Where, before, any party could send out long
ticularity in the pleadings” [FRCP, Rule 26
sets of written questions to be answered by an op-
(a)(1)(B)].
posing party, with no limits on how many sets or how
many questions in each set, henceforth each party ■ At approximately the same time, the attor-
would be limited to, say, 25 questions for the entire neys for all parties to the suit would be re-
lawsuit. Such measures did little to contain the rising quired to meet to discuss the case and de-
cost of litigation, but did serve to improve the skill of velop a proposed discovery plan, setting
litigators in writing single questions that would take forth the subjects on which additional dis-
enormous work to answer! (Example, only slightly covery might be needed, proposed deadlines
exaggerated: “State the substance of each and every for accomplishing it, and indicating the extent
communication had by any employee of defendant to which the traditional discovery tools
General Motors Corp. with any other person during would be needed; see FRCP, Rule 26(f).
the last 10 years, the subject matter of which in- ■ The judge would review the proposed discov-
volved any customer complaint regarding the qual- ery plan, and perhaps hold a scheduling con-
ity or safety of any General Motors vehicle.”) ference with the attorneys to discuss it. The
In the 1990s, judicial dissatisfaction with per- judge would then enter a scheduling order,
ceived abuses came to a full boil, and, in jurisdiction setting deadlines and specifying what discov-
after jurisdiction, the decision was made to shift to a ery would be required or allowed; see FRCP,
different system of discovery, based on mandatory Rule 16(b).
disclosure. The idea on which mandatory disclosure Problem solved! Well, sort of. Of course, there were,
is based is this: Under the old system, if you wanted and are, a few spoilsports who would argue that all
information, you had to ask for it—and describe what we have done is create still another procedure for
you wanted in clear enough terms that your oppo- lawyers to argue about. The new rules do raise some
nent could not get away with hiding some crucial bit difficult issues (see sidebar).
of evidence by claiming that your request was am-
biguous. That process is inherently inefficient. Since
LOCAL VARIATIONS
the requesting party has no knowledge of what infor-
mation is there to be discovered, he or she has no op- We have said that the mix of allowed discovery pro-
tion but to ask to see everything there is. In some cedures varies greatly by locality. Why would that
ways, traditional discovery is like the game “Battle- be? Surely, at least, the Federal Rules of Civil Proce-
ship,” in which each player tries to guess where the dure make discovery procedure uniform for all U.S.
other player’s ships are on a grid of squares. district courts?
Instead of putting the requesting party to the im- Quite the contrary. When the U.S. Supreme
possible task of firing requests off in the dark, why Court adopted the 1993 amendments, it made them
not simply require each party to disclose—without optional! Each U.S. district court was free to decide
being asked—every bit of information in his posses- for itself whether to follow all of the changes, some
sion that is relevant to any of the issues being liti- of them, or none of them. At about the same time,
gated? Would not such an approach eliminate a great Congress added to the confusion by passing legisla-
deal of the gamesmanship that had come to charac- tion authorizing District Courts to look for ways to
terize the discovery process, and much of the pa- improve efficiency by experimenting with changes
perwork as well? The old discovery tools might still in their own local rules—an invitation enthusiasti-
be needed to flesh out the information voluntarily cally taken up by many district courts. The net re-
provided, but their use could now be greatly limited. sult has been that, today, almost no two U.S. District
After some early experimentation in state Courts follow exactly the same discovery rules.
courts (the authors’ home state, Arizona, was at the Some have adhered to the old system; others have
forefront of the move to disclosure-based discov- completely embraced the new; and a great many op-
ery), sweeping amendments were made in 1993 to erate with some unholy mixture of the two.
WORKSHOP Introduction To The Discovery Workshops 357
live witnesses—are the same everywhere. A great

SIDEBAR deal of the work of discovery consists of analyzing
the information obtained (a fertile source of work
Mandatory Disclosure Rules: for paralegals); disclosure rules change only the
Blessing or Curse? way in which information is gathered, not what is
done with it thereafter. The goals and motivations of
Not every litigator is a fan of disclosure- the litigants are largely unchanged, regardless of the
based discovery, and the detractors do have some system used. Even the tools of traditional discov-
valid points to make. Here are a few of the com- ery—interrogatories, depositions, requests for pro-
mon criticisms: duction of documents—are by no means eliminated
1. Litigants are naturally tempted to try to hide in mandatory disclosure systems; they merely take
evidence that they think will hurt their case. By se- on a different purpose, that of filling in the inevitable
verely restricting the use of the old discovery tools, gaps in the required disclosure.
the new rules make it harder to detect such cheat- Our intended focus in these workshops is on the
ing, and the punishment for parties who are hands-on skills needed by litigation paralegals. The
caught “hiding the ball” is neither certain enough knowledge required to prepare a disclosure state-
nor severe enough to have much deterrent effect. ment is essential in jurisdictions where disclosure
In short, mandatory disclosure rules—or more ac- rules are in force. We begin with a workshop on that
curately the limitations on traditional discovery subject, which instructors in nondisclosure jurisdic-
that accompany them—make the outcome of lit- tions may wish to skip. The remaining discovery
igation depend overly much on the ethics and workshops should be valid and relevant for all stu-
honesty of one’s opponents. dents. Litigation paralegals in all localities need the
basic skills involved in working with requests for pro-
2. Mandatory disclosure rules put lawyers in the duction of documents, subpoenas, interrogatories,
uncomfortable position of having to, in effect, and depositions. Those in disclosure jurisdictions will
build an opponent’s case for her. Disclosure rules use these tools to supplement disclosure; for those in
may require a diligent lawyer to reveal evidence traditional discovery jurisdictions, they comprise the
that will lead to new claims or defenses that a principal means for obtaining information. Likewise,
lazy opponent would otherwise never have paralegals in all jurisdictions must learn to respond to
thought of. This seems unfair to the client of the discovery requests, to analyze discovery responses,
diligent lawyer, who is paying for work that un- and to prepare and respond to discovery motions.
dercuts his own case.
3. Disclosure rules undermine the attorney–client DISCOVERY—SEEING
privilege. If a client discusses some damaging bit THE BIG PICTURE
of evidence with his lawyer, the lawyer has no
choice but to reveal it to the opposing party un- In the workshops to follow, we will be zeroing in on
der the disclosure rules. A client who understands the minutiae of various common discovery tasks.
the system will be motivated not to tell his lawyer Before doing so, it is worth reminding ourselves that
about the bad bits of evidence. our goal in conducting discovery is to improve our
chances of winning the lawsuit. Individual discovery
Are mandatory disclosure rules an improve-
tasks should continually be evaluated on the basis
ment, or a mistake? What is your opinion?
of their contribution to that ultimate goal.
Getting maximum advantage from discovery re-
quires planning. Successful litigators do not simply
start shooting out a random stream of discovery re-
State courts have not, on the whole, rushed to a quests—they take the trouble to map out in advance
wholesale adoption of the federal, disclosure-based the information that will be needed and the steps
system of discovery, and many states continue to ex- that can be taken in pursuing it. In Workshop 1, we
periment with their own solutions to the problems of advocated the preparation of an issues outline as a
discovery abuse and excessive cost. It is impossible, way of organizing your understanding of the claims
therefore, to offer a single, consistent tutorial on dis- and the facts needed to support them. A good place
covery that will be accurate for every jurisdiction. to start in planning discovery is to go through your
Nevertheless, there is a great deal about discov- issues outline, element by element, issue by issue,
ery that is relatively uniform, regardless of place. and decide how you can best prove each required
The raw materials on which the discovery process fact. List all of the facts for which you need more ev-
operates—mainly paper records and testimony of idence, and decide which discovery procedures
358 WORKSHOP Introduction To The Discovery Workshops
Figure I–1 Discovery Flow Chart
Planning
List Basic Facts Using Issue Outline
Decide What to Ask for in Preliminary
Serve Initial Request

for Production of
Documents
Initial Interrogatories
Receive and Review F

Responses to Receive and Review A
Requests Opposing Party's C
Disclosure Statement T
D
Analyze Opposing Party's Responses/Disclosure A
T
A
B
Write Letter to Update Fact Data A
Opposing Counsel Base to Reflect S
Demanding Missing Items Disclosed E
Items
Based on Updated
File Motion to Facts, Analyze What
Compel Opposing Discovery Still Needs
Party to Turn to Be Done
over Missing
Items
Send Out Supplemental
Discovery Requests
Notice and Take Depositions
Review Items Received Subpoena Records from
Following Judge's Ruling Third Parties
should be used to obtain each one. Keep track of ing to keep it hidden if possible. (Disclosure rules
the status of each required fact as discovery pro- do not make litigation any less an adversary
gresses, so that you can fill in any gaps. process; they merely change the tactics by which
The chart shown in Figure I–1 illustrates the way litigants try to shape the factual development of a
in which discovery begins with a plan, elicits pre- case to their own advantage.)
liminary responses, and uses the information gained What are some of the tactics used? Some litiga-
to tailor subsequent requests, while at the same tors use a “scorched earth” strategy, in which noth-
time resolving the gaps in the responses received. ing useful will be disclosed without a fight. Discov-
Discovery planning is, of course, ultimately the ery requests are met first with incomplete
job of the responsible attorney, but you will be responses and responses that claim to disclose
more effective as a litigation paralegal if you under- everything but in fact do not. If the opponent
stand what your supervising attorney is trying to presses, claims of privilege and other objections
accomplish. The main motivations are fairly obvi- will be tried, forcing the requesting party to file mo-
ous: One party is trying to pry loose some piece of tions and jump through additional procedural
evidence or information, the opposing party is try- hoops. If a damaging bit of information cannot be
WORKSHOP Introduction To The Discovery Workshops 359
suppressed, misdirection may be used—disclose This task is well suited for paralegals under proper
the information, but do it in a way that makes it supervision, and, routine though it may seem, there
seem unimportant, or bury it in a mass of other dis- is often plenty of opportunity for an ambitious para-
closure. By making every step as difficult, time con- legal to show off his talent by discovering some
suming, and expensive for the requesting party as case-winning piece of evidence among the piles of
possible, he or she will be induced to cut corners on seemingly mundane documents.
account of sheer exhaustion. Another critically important but endlessly
Although such tactics may seem improper, the time-consuming task is that of making disclosure
discovery process poses ethical issues that are not to opposing parties and responding to their dis-
simple to resolve. You have an obligation under the covery requests. Reliable judgment here is indis-
rules to comply with discovery requests, but you pensable, because this is the place in a lawsuit
have an obligation to your own client to fight for her where we most risk accidentally revealing to an
cause. These competing obligations sometimes re- opponent some damaging fact that should not
quire us to draw lines that are not easy to draw. We have been disclosed.
visit the subject of ethics in discovery in Workshop While attorneys are usually responsible for a
19, Ethics in Litigation. number of lawsuits at any given time, and cannot
hope to keep the factual details of each one in mem-
ory, a paralegal can be assigned to become expertly
ROLE OF THE PARALEGAL familiar with the facts of one or two cases. Such a
Discovery probably consumes more paralegal person is then in a unique position to be able to pull
hours than any other activity in litigation. Discov- together quickly the facts needed to respond to a
ery in modern civil litigation is so time consuming discovery request. Such an ability is especially use-
that having it done exclusively by lawyers would ful in courts using disclosure-based discovery,
be prohibitively expensive. Yet good legal judg- since the time allotted for making initial disclosure
ment is often required, so leaving all but the most is usually short.
routine tasks to untrained clerks or secretaries In short, for paralegals, discovery is a growth
risks costly mistakes. Paralegals are positioned industry.
perfectly by their training to carry out much of
this vital work.
Much of the effort in discovery involves analyz-
ing the responses received, which can amount to lit-
erally tens of thousands of pages in a complex case.
Document Discovery WORKSHOP
9
INTRODUCTION: THE OBJECTIVES Often, another goal of document discovery is to
OF DOCUMENT DISCOVERY establish that given documents do not exist. If we
properly request a particular category of docu-
In this workshop, we focus on document discovery— ments from defendant X, and none are produced,
that is, discovery procedures whose purpose is to ob- then for practical purposes we have proved that de-
tain documents. We can use two main procedural fendant X does not have any documents of the type
tools for this purpose; which one we choose depends requested. (It is important to frame document re-
on who has the document that we are trying to ob- quests clearly and concisely, so that opposing par-
tain. To get documents from another party (usually ties do not have room to hedge by later claiming
an opponent), we use a request for production of doc- that the request was ambiguous.)
uments under FRCP, Rule 34. If the documents we are Real discovery, of course, falls short of the ideal
seeking are in the hands of someone who is not a of gathering every pertinent document. Like every-
party to the lawsuit—medical records from a hospi- thing in litigation, discovery is an adversary
tal, say—then we use a subpoena duces tecum. We will process. Our opponent is not about to turn over
learn to use both in this workshop. willingly some document that is likely to cement his
Document discovery is, in many ways, a natural undoing. Resistance is a given, sometimes within
place to start our overview of the discovery the bounds of the rules, and sometimes, unfortu-
process, although certainly not the only possible nately, extending to unethical tactics such as hiding
one. Preferred discovery strategies vary greatly and destroying evidence. Another problem is that
from one litigator to another, and often depend on we live in an age of record proliferation. It is not at
the needs of a given case. However, one common all unusual in complex cases to be confronted with,
way to begin the discovery process is to assemble literally, rooms full of potentially relevant docu-
and analyze as much of the pertinent documenta- ments and computer disks full of data; analyzing
tion as possible, with the idea that the documents every page may not be cost effective.
will contain the identities of important witnesses Finally, the time allowed by the court for com-
and leads to other evidence. pleting discovery is not unlimited. Discovery con-
sists of chasing the facts from lead to lead, and the
DOCUMENT DISCOVERY process must end somewhere. The goal is to find all
STRATEGY AND GOALS the information that exists, but usually one settles
for finding enough to prove one’s case.
Ideally, the goal of each party—plaintiff or defen-
dant—in document discovery is to assemble a com-
plete set containing every single piece of paper that
THE DOCUMENT DISCOVERY
could conceivably bear on the case, whether help-
PROCESS IN A NUTSHELL
ful or harmful to our case. We want “good” docu- How do we accomplish all of this document gather-
ments so that we can use them as evidence to sup- ing? Here is the basic overall strategy that we will
port our case; we want the documents that are use. First, we serve a very broad request for pro-
harmful to our case, as well, because if they are duction of documents on each opponent. We try to
“bad” for us, they are probably “good” for our op- ask for every document and category of documents
ponent, and we need to be ready to counter them. that we can think of that could conceivably be use-
Our goal goes far beyond that of merely gather- ful to us. (In a court that requires disclosure state-
ing documents to use as evidence. In fact, many of ments, this step is unnecessary and probably not al-
the documents we are gathering will never see the lowed; instead, we will simply wait for our
light of day in a courtroom. Our main purpose in opponent’s initial disclosure package.)
gathering documents is to provide a body of data Eventually, we will receive a written response
that we can use in tracking down other evidence. to our request, stating which items are being pro-
Every document was written by someone—someone vided and which are being objected to, and ac-
who is a potential witness, if the document seems to companied by a stack of papers. (In courts using
indicate that the author knows something about the disclosure-based discovery, the stack of papers
facts at issue in the lawsuit. Documents often refer to will accompany the opposing party’s initial disclo-
other documents, so even if the document in front of sure statement.) Invariably, the pile of papers con-
us is not helpful, the one it refers to may be. tains some, but not all, of the documents to which
362 WORKSHOP 9 Document Discovery
we are entitled. We read and analyze the papers received subpoenaed records from other sources,
that were provided and use them to improve our we should be well on our way toward assembling a
understanding of the facts of the case. We also use complete set of documents. When we analyze them,
any information available from other sources, such if we find that gaps still exist, we continue to send re-
as deposition testimony, answers to interrogato- quests for production, issue subpoenas, and file mo-
ries, and informal interviews of witnesses. All of tions where necessary, until either we are satisfied
this information will no doubt point to other docu- that we have everything needed or the discovery
ments or categories of documents that we did not completion deadline prevents us from continuing.
know about, so we expand our list of documents In following this basic plan, we make each move
and send new requests and subpoenas asking for as early as reasonably possible. Most American
the new additions to the list. courts today set a discovery cutoff date in each
Meanwhile, we take steps to pursue the docu- case. This is a date set by court order after which no
ments that are missing from the responses (or dis- further discovery is permitted. A party who is re-
closure packages) that we received. First, we send sisting disclosure will often try to stall until the cut-
opposing counsel a letter politely asking for the off arrives; therefore, we must react immediately
missing items; if they are not forthcoming promptly, when an opposing party tries to get away with an in-
we file a motion asking the court to order our oppo- complete response. Moreover, the documents that
nent to produce them. You may wonder why we men- we are assembling will reveal leads to other kinds of
tion this as a routine part of document discovery— evidence—names of witnesses, facts of which we
surely having to chase after documents that should were unaware—and we need time to locate and de-
have been provided in the first place is a rare event? pose witnesses and follow up on new facts.
Unfortunately, no; as we will see, discovery re-
sponses are almost always at least partially incom- Your Local Notes
plete. Sometimes, papers that we ask for are not
_________________________________________________
turned over simply because the party asked for
them does not have them. Other times, it is because _________________________________________________
someone is being careless, lazy, or deliberately ob-
structive. We will revisit the important task of forc-
ing opponents to turn over everything that they are
required to when we take up the topic of Discovery THE TOOLS OF DOCUMENT
Motions in Workshops 10 and 15. DISCOVERY
Opposing parties will not be able to provide Our overall approach, then, is to generate a list of
some types of documents, so we instead seek them documents that we would like to examine and then
from sources that are not directly involved in the follow some procedure that will lead to the posses-
lawsuit. (A common example: medical records of a sors of those documents giving them to us. The pro-
plaintiff suing for injuries, which both sides need to cedure chosen depends on who has the documents
obtain from the hospital or treating physician.) We we require.
begin early in the case—as early as court rules per-
mit—to prepare and send subpoenas for all such Request for Production of Documents—In
documents that we can think of. general, to obtain documents from someone who
As the documents flow in, we begin organizing is a party to the lawsuit, we use a request for pro-
them using a suitable filing and indexing system. In duction of documents as provided for by FRCP,
small cases, this is likely to be done by hand; in big Rule 34. (In some jurisdictions it is also permissi-
cases, a computerized litigation support database is ble to use a subpoena duces tecum to obtain doc-
almost certainly necessary. Either way, we must en- uments from a party, but this will often provoke
sure that we can ascertain, if necessary, where each opposition because a subpoena typically pro-
document came from, how we obtained it, where the vides less time for response than the 30 days al-
original is, and who might be called as a witness to lowed for a request for production under FRCP,
testify that it is authentic if necessary. In all but the Rule 34.) As we will see shortly, a Rule 34 request
smallest cases, we will also devise some way of infor production is prepared in the form of a court
dexing documents by subject, so that we can locate paper, with the usual caption and formal parts.
important papers quickly when we need them. We The body of the request lists the documents that
have more to say later regarding the fine art of or- we are requesting.
ganizing documents. A request for production of documents is signed
By the time we have received the second or by the attorney for the requesting party and served
third set of documents from our opponent, and have on the party from whom the documents are re-
WORKSHOP 9 Document Discovery 363
quested. Service is usually of the informal kind un- 45, solves the problem by specifically authorizing a
der FRCP, Rule 5—that is, by mail or hand delivery subpoena for documents only. In this workshop, we
to the attorney. emphasize the procedure under the federal rules;
In addition to producing the requested docu- your instructor will inform you of the customary
ments, a party who receives a request for production procedure for obtaining documents by subpoena in
must also file and serve a written response to the re- the state courts of your locality.
quest; see FRCP, Rule 34(b). We will look more
closely at the response requirement in Workshop 11. Your Local Notes
_________________________________________________
Subpoena Duces Tecum—To obtain documents
from someone who is not a party to the lawsuit, we _________________________________________________
use a subpoena. A subpoena is the modern descen-
dant of what was, at common law, a formal court or-
der commanding a witness to appear and testify. Un- Informal Requests—We can also sometimes ob-
der traditional subpoena practice (and even today tain documents in other ways, such as by Freedom
in some state courts), there were two types of sub- of Information Act requests, by perusing public
poenas—subpoenas ad testificandum, which or- records, or simply by asking people for the docu-
dered a witness to appear at a specified time and ments we want. There is an advantage to be gained
place to give testimony, and subpoenas duces tecum by employing such informal methods when possi-
(Latin for “bring with you”), which also ordered a ble: We avoid the involvement of opposing lawyers.
witness to appear and give testimony, with the Any records we obtain via a FRCP, Rule 34, request
added requirement that the witness bring along for production will have been thoroughly reviewed
specified documents or things to be examined. by our opponent’s attorney before we see them. We
Modern courts have streamlined subpoena pro- can be sure that no “smoking guns” will be disclosed
cedures considerably over the years in an effort to without a fight. Furthermore, a formal Rule 34 re-
eliminate unnecessary burden on the clerk’s office. quest, by spelling out exactly what documents we
Originally, subpoenas had to be signed by judges; want to review, inevitably provides opposing coun-
all modern courts long ago abandoned that time- sel with clues about how our own factual develop-
wasting practice in favor of authorizing the clerk of ment is progressing.
the court to issue subpoenas. In many courts, the We must, however, think carefully about how
clerks eventually began issuing stacks of subpoe- and from whom we obtain documents by informal
nas to attorneys “in blank”—already stamped, methods. If the document that we seek is a public
sealed, and ready for the attorney to fill in the name record, we are always free to obtain and use it. We
of the witness and other information, and thus elim- are usually not, however, free to obtain documents
inating the burden on the clerk’s office of having to in the possession of an opponent by informal
issue subpoenas one at a time. Finally, in 1991, the means. For example, if we are suing a large corpo-
federal courts took the logical next step of authoriz- ration, the idea might occur to us to go to one of the
ing attorneys to sign subpoenas, thereby taking the company’s offices and try to get documents or in-
clerk’s office completely out of the loop. A subpoena formation from some helpful employee. Rules of le-
signed by an attorney under FRCP, Rule 45, still has gal ethics, however, prohibit lawyers—and parale-
the force and effect of a court order. gals working for lawyers—from communicating
The 1991 amendments to the federal rules also about matters related to the lawsuit with an oppos-
solved another vexing problem with subpoena prac- ing party who is represented by another lawyer. De-
tice: Formerly (and even today in some state pending on the circumstances and on the ethics
courts), by definition, a subpoena was an order rules of the locality, this prohibition may also ex-
commanding a witness to appear and give testi- tend to communications with employees of an op-
mony. The witness could be commanded to bring posing party. Therefore, a paralegal should never
documents, but there was no procedure for getting contact offices or employees of an opposing party
documents without making a witness show up too. without first getting the approval of a supervising
This dilemma was routinely solved in practice (and attorney.
still is in some state courts) by sending a letter with An attorney may freely contact third-party wit-
the subpoena advising the witness that her pres- nesses as long as they do not have some protected
ence, though commanded by the subpoena, was not confidential relationship with an opposing party.
really desired. (Predictably, some witnesses, ner- Suppose, for example, we represent the defendant
vous about disobeying a court order, show up in in an auto accident case and we learn that one of
person anyway.) The current version of FRCP, Rule the witnesses to the accident took photographs of
the scene. We are perfectly free to contact that wit- Document Requests:
ness and attempt to obtain copies of the pho-
tographs, and we have no obligation to tell oppos- Step-by-Step Instructions
ing counsel that we are doing so. We may not,
however, contact plaintiff’s doctor on the sly and
try to obtain medical records without opposing PREPARATORY STEPS
counsel’s knowledge, since the doctor–patient re-
Our first goal is to prepare an initial set of FRCP,
lationship is a confidential one and medical
Rule 34, document requests and subpoenas duces
records are privileged. To obtain medical records,
tecum that will bring in the main body of documents
we must subpoena them.
that we need to review when we begin preparing
Deciding which witnesses may be contacted
our case and assembling the evidence for trial. To
and which may not often involves drawing fine le-
do this, we must determine two things: (1) What
gal and ethical lines, and may also involve strat-
documents do we need? (2) From whom can we ob-
egy questions best left up to the attorney in
tain them?
charge of the case. As a paralegal, you should
never contact third-party witnesses unless your
supervising attorney has expressly authorized Plan Your Request and List
you to do so.
Step 1 the Documents Requested
Our objective in this step is to make a master list of

SIDEBAR all documents we can think of that might exist and
might conceivably be useful to us. At this stage, we
The Virtue of Viewing do not care where the documents are or who has
possession of them. We simply try to list every kind
the Original File of document we can think of, regardless of where or
Even though FRCP, Rule 34, requests and sub- in whose hands it may be.
poenas duces tecum specify a time and place at We may list:
which documents are to be produced, it is quite ■ Specific documents, if we are aware of any.
common to respond simply by mailing photo- For example, “invoice for mechanical work
copies of the documents to the requesting attor- done on the brakes of defendant’s car on
ney, prior to the date specified. Should we, as rep- March 5, 1999 at Al’s Brake Shop.”
resentatives of the requesting party, be satisfied
■ Categories of documents. For example, “Each
with photocopies?
and every document pertaining to any me-
On a preliminary basis, yes. Photocopies are chanical work done on the brakes of defen-
admissible in evidence as “duplicate originals” un- dant’s car during the one-year period preced-
der Rule 1003 of the Federal Rules of Evidence, so ing the accident.”
we do not have to have originals in order to use the
In deciding what documents to request, we
documents in court. Nevertheless, the requesting
wish to cast our nets wide, so that we can decide for
party has a right to inspect the original documents,
ourselves what is useful and what is not after seeing
and should always insist on viewing the originals of
everything that there is. FRCP, Rule 26(b), sets the
any files containing documents that are crucial to
standard for deciding which documents we can get
the issues of the case. Why? The copies that we re-
and which we cannot:
ceive in response to a Rule 34 request or subpoena
are likely to have been made by some overworked Parties may obtain discovery regarding
clerical employee, who is given boxes of files with any matter, not privileged, which is relevant
the instruction “Copy these by 5:00 P.M.” In- to the subject matter involved in the pending
evitably, pages will get stuck together and be action, whether it relates to the claim or
skipped; the backs of pages may be missed; sticky defense of the party seeking discovery or to
notes attached to pages may be omitted; the file the claim or defense of any other party,
including the existence, description, nature,
folders themselves may have notes written on them
custody, condition, and location of any books,
but will not be copied. In short, you cannot be sure
documents, or other tangible things and the
that you have seen everything there is to see unless identity and location of persons having
you have gone through the original file yourself knowledge of any discoverable matter. The
and looked at every page. information sought need not be admissible
at the trial if the information sought appears
reasonably calculated to lead to the discovery If you have a working background in a particu-
of admissible evidence. lar business or profession, you may have opportu-
nities to put your experience to good use in docu-
If a document or other item of information is “not
ment discovery, because record keeping is
privileged” and is “reasonably calculated to lead to”
becoming increasingly specialized. For example, in
admissible evidence, we say that it is discoverable
a medical malpractice case, it is necessary to
and we are entitled to ask for it and get it. FRCP, Rule
gather and interpret medical and hospital records.
26(b), is broad enough that it allows us to ask for es-
The keeping of medical records is practically a pro-
sentially anything we can think of that might con-
fession unto itself; medical record technicians un-
ceivably be useful.
dergo an entire curriculum of study to learn what
In writing discovery requests, we do not
kinds of records there are and how to administer
(within reasonable limits) worry about whether
them. A suit against a real estate broker would in-
some document that we want is discoverable. We
volve an entirely different type of records. In either
assume that it is, and let the opposing party object
case, a number of different kinds of records are rou-
if he disagrees.
tinely kept in the business in question, and it takes
experience with that business to know what they
Figuring Out What to Ask For—Obviously, we are. (That is why experienced nurses who are
want our master list to be as complete as possible.
trained as paralegals are eagerly sought by law
Is there any systematic approach that we can use to
firms specializing in personal injury and medical
be sure we have included all of the possible target
malpractice cases.)
documents? It will be helpful if we approach the
problem from two different angles. We begin with Generic Document Categories to Be Re-
the specific, and try to guess what kinds of docu- quested—Most litigators have a standard set of
ments should exist in the situation involved in the boilerplate document categories that they automat-
current lawsuit. Then we protect ourselves with ically include in their first FRCP, Rule 34, request for
generic, “boilerplate” requests, which are general production to each opposing party. Here are exam-
categories of documents that we will want to re- ples of a few of the categories typically included:
quest in every lawsuit, regardless of the subject
matter, to be sure we have not left any gaps in the ■ Documents that an opponent will use as an ex-
coverage of our specific requests. hibit at trial (see sidebar on supplementation).
■ Documents (like receipts or bills) that evi-
Documents Specific to the Current Lawsuit— dence expenditures included in the amounts
First, we consider the specifics of the current law- for which an opposing party is suing.
suit, and try to generate a custom list that will cap- ■ Insurance policies covering any of the dam-
ture all of the documents that we expect might exist ages involved in the suit.
in the situation involved in the suit. Here are a few ■ Correspondence between any of the parties
ways to get started: to the suit.
■ Use your issue outline (see Workshop 1) as a ■ Reports of expert witnesses retained by an
checklist, and consider which categories of opposing party.
documents might be pertinent to each of the ■ Documents supporting the allegations made
issues on the outline. by the opposing party in its pleadings.
■ Obtain copies of document requests used in
(The foregoing list is intended to give a general idea
other lawsuits similar to yours. Your super-
of some of the categories of documents that we may
vising attorney will usually be able to suggest
want to request; it is by no means exhaustive. Nor
other files in the office from which you can
are the items in the foregoing list worded in the way
obtain sample requests.
that they would be in an actual document request.
■ Carefully read the opposing party’s com- For proper wording, see the examples under Step 1
plaint or answer and think about each of the in the Learning by Example section later, and see the
factual allegations. Ask yourself what docu- sidebars on redundancy and discovery legalese.)
ments might exist that would tend to prove or Where can you go for ideas about what other
disprove each allegation. categories of documents to include? If you work as
■ Examine the documents that you already a litigation paralegal, your supervising attorney will
have (such as those provided by your undoubtedly have sample document requests from
client) for clues about what other docu- which you can work. Also consider the court rules
ments may exist. of other jurisdictions that have adopted mandatory
disclosure—mandatory disclosure rules are in- had much to say about adapting one’s writing to the
tended to embrace the kinds of documents that a goals sought to be achieved, especially in the con-
competent litigator would request in every case. As text of writing for the purpose of persuasion. Dis-
you gain experience and have occasion to see the covery requests typify a different type of legal writ-
work of others, you should compile your own ing; here, the purpose is not to persuade, but rather
generic list of documents to be requested. to describe something so comprehensively that
Our master list will inevitably grow and evolve there is no possibility that someone can credibly
as the discovery process continues. As we review claim to have misunderstood what was asked for.
documents in the case and familiarize ourselves Elegance of phrasing here is worth nothing; better
with the facts, we will get ideas about additional to come at our descriptions from as many different
documents to request. angles as possible, using as much repetition as
needed. Otherwise, we will find ourselves on the re-
Your Local Notes ceiving end of arguments like President Clinton’s
contention that “sexual relations” does not include
_________________________________________________
“oral sex” (see sidebar on redundancy).
_________________________________________________ As you gain experience with discovery re-
quests, you will find that certain language patterns
are used over and over. There is a reason for this:
How to Compose “Bulletproof” Requests — Many of these cumbersome phrases have been in-
Because we will be block-copying items from our terpreted by judges often enough that it is nearly
master list directly into the individual lists of docu- impossible for anyone to argue about their mean-
ments to be requested or subpoenaed, we need to ing. Here, literary inventiveness is not a virtue; bet-
write each item in the form in which it will appear in ter to stick with tried and tested phrasing (see side-
the actual request or subpoena. We have already bar on discovery legalese).
SIDEBAR
Supplementation of Responses
When we send out a FRCP, Rule 34, request for What can we do, then? One tactic commonly
production, we hope to receive a response based on seen is to serve a formal request for supplementation
the documents that the opposing party has—at the of prior responses. This can take the form of a one-
time of the response. What if the opposing party turns paragraph court paper requesting that the opposing
over everything available at the time of our request, party supplement responses to specified prior discov-
but later obtains additional documents of the kinds ery requests. This is intended to obligate the opposing
that we asked for? Does she have to turn them over? party to bring the previous responses up to date. Does
Parties responding to discovery requests do have this have the desired effect? Most judges would prob-
some duty to supplement responses. FRCP, Rule 26(e) ably enforce requests for supplementation. Unfortu-
(2), provides that “a party is under a duty seasonably to nately, though, the federal rules do not expressly pro-
amend a prior response to an interrogatory, request for vide for this procedure; therefore, it is probably safer to
production, or request for admission if the party learns serve a complete new request for production, at least
that the response is in some material respect incomplete with regards critical categories of documents. And
or incorrect and if the additional or corrective informa- with subpoenas, there is no other choice—if you think
tion has not otherwise been made known to the other that a third-party witness may have acquired some
parties during the discovery process or in writing.” new documents, you will need another subpoena.
Can we, then, assume that our opponent will vol- The rules of most courts require parties to ex-
untarily turn over additional documents as he or she change all trial exhibits at some time before trial, so at
obtains them? Sorry—not a safe assumption. It is too least we will eventually get to see any after-acquired
easy for the opposing party to argue that the addi- documents that our opponent intends to use as ex-
tional documents were not “material” or that the orig- hibits. Of course, these are unlikely to include any doc-
inal response was complete and correct when made. uments that will help our case.
SIDEBAR
The Virtue of Redundancy
The goal of an opposing party responding to our volved in other misconduct in the past. It would be
discovery request will be to turn over to us as many reasonable to suppose that documentation of previous
tons of useless paper as possible, while withholding misconduct would be in Arnie’s personnel file, so we
any documents that would really help us win our case. will include in our request to the hotel a specific item
Opposing parties will attempt to withhold docu- asking for that:
ments—that is a given. Our goal is to write our re- All documents, including without limitation per-
quests in such a way that if our opponent does with- sonnel records, pertaining to the employment of
hold the documents we want, we will be able to show Arnold Trevayne by Park Hotels Group.
the judge very clearly that we did ask for them.
However, it is also possible that, for example, some ho-
How can we write requests that accurately de- tel customer wrote a letter complaining about some-
scribe documents that we have not yet seen? This is a thing that Arnie did, and the letter was filed in a gen-
little like trying to hunt blackbirds at 2:00 A.M. on a eral hotel guest complaint file and not in Arnie’s
moonless night. Overly specific descriptions are like personnel file. In that case, Park Hotels Group could
shooting with a rifle—unless we are exactly on the comply with our document request without ever telling
mark, our opponent will point to all of the words in us about the complaint. So, we will add a second
our description that do not match document X, and “shotgun” item:
use the differences as an excuse not to give it to us. On
All documents comprising, reflecting, or pertain-
the other hand, if our descriptions are too broad—the
ing to any communication made by any person at any
“shotgun” approach—our opponent will point to all
time, the subject matter of which related to any con-
of the details of document X that are not included in
duct by Arnold Trevayne.
our description, and claim that our description was
too vague. One caveat: some courts impose limits on the
number of items that can be included in document re-
One strategy that we can use to good effect is to
quests. Such limitations add another dimension to
do both. An example based on our hypo will help
the problem of writing watertight document descrip-
make this clear: In taking Arnie Trevayne’s deposition,
tions, because they restrict our ability to shotgun us-
Allen Porter gets the impression that Arnie is a shady
ing multiple items to describe the same documents.
character and suspects that Arnie may have been in-
SIDEBAR
Discovery Legalese
In writing FRCP, Rule 34, requests for production flecting, comprising, or pertaining to any contract
and subpoenas, we want to make our document de- between X and Y” should fairly entitle you to the
scriptions as all-encompassing as possible, so as to contracts, plus any notes or letters about the con-
avoid giving the opposing party an excuse to withhold tracts, addenda or amendments to the contracts,
documents. Here are a few ideas that will help you do prior drafts of the contracts, etc.
this: ■ Use the phrase “including without limitation” or
■ Use general words like communication rather than “including but not limited to” as a way of includ-
specific words like letter, memo, contract, and the ing the specific and the general in the same de-
like. scription. For example, write “all communications
■ Use phrases like “all documents evidencing, re- between X and Y, including without limitation the
flecting, comprising, or pertaining to” to broaden letter from Y to X dated March 15, 2000.”
the scope of your requests. “All contracts between As you gain experience responding to discovery re-
X and Y” will get you only documents that are quests, keep your eyes open for other useful additions to
clearly contracts. “All documents evidencing, re- your vocabulary of discovery jargon.
Decide from Whom to Request Our initial requests for production are usually
Step 2 Each Document or Category directed to all opposing parties in the suit. Often,
of Documents we may be requesting the same documents from
each opposing party, so each of the requests may
After completing Step 1, we now have a master list of appear identical. Nevertheless, we prepare a sepa-
all documents that we can think of that might be per- rate request to be sent to each opposing party. Each
tinent to our suit. Now we must decide which docu- request names the party who is to respond (usually
ments should be requested from which sources. For in the preamble; see Step 4 later). We do this so as
each source, we will generate a separate list of docu- to be able to require individual responses from each
ments to be produced; we can do this easily by cut- party. If we send out a blanket request to “all defen-
ting and pasting from our master list. The separate dants,” the response we receive is likely to be a
lists will be used in creating the individual document blanket response by all defendants, and we will
requests and subpoenas: lists of documents to be ob- have no way to prove that any given defendant did
tained from sources who are parties to the suit will or did not produce what she was supposed to. Ide-
be attached to FRCP, Rule 34, requests for produc- ally, we will repeat Steps 3 through 7 separately for
tion of documents, and lists directed to nonparties each opposing party, and produce individualized
will be attached to FRCP, Rule 45, subpoenas. requests for each.
How do we decide from whom to request each
category of document? Do we choose the most Formal Parts: Caption, Date
likely source for each one? No. Document discovery Step 3 and Signature Lines, Certificate
is done with a shotgun, not a rifle. There is nothing of Service
wrong with requesting or subpoenaing the same
document from more than one source; in fact, doing A FRCP, Rule 34, request for production is a court
so may help us protect ourselves against opposing paper, with the usual caption and other formal
parties who deliberately hide or alter evidence. parts. As usual, we will begin with the form caption
When we finish this step, we should have a stack and mailing certificate that we prepared in Work-
of document lists, one list for each person from shop 4. Then all we need to do is plug in the main
whom we will be seeking documents. Some of the body and put an appropriate title in the caption.
lists will be short, perhaps listing only a single doc- The title will usually be simply “Request for Pro-
ument. Others will be as long as the master list itself. duction of Documents.” In a complex case in which
Generally, we attach our entire list—all documents there will be many such requests, some litigators
and categories of documents that we can think of— prefer to use more specific titles, such as “Plaintiffs’
to the Rule 34 requests directed to each opposing First Request for Production of Documents to De-
party. When we request documents from an oppos- fendants Smith.” Let local custom be your guide.
ing party, we include even those documents (such
as medical records, police reports, etc.) that we
know we can obtain elsewhere or that we may think Your Local Notes
the opposing party is unlikely to have. Copies of _________________________________________________
documents can be anywhere, and we want to know
_________________________________________________
exactly what our opponent—and our opponent’s
lawyer—has. If our opponent does not have the doc-
uments we request, let him file a response saying so.
Preamble, Instructions,
DRAFTING STEPS: Step 4 and Definitions
REQUESTS FOR PRODUCTION
Now we separate our stack of document lists into The main body of the request begins immediately af-
two groups—one consisting of lists to be requested ter the caption. As usual, the body should begin with
from parties to the suit, and the other of lists to be a preamble telling the reader what the document is.
requested from nonparties. To request documents A typical preamble might be written as follows:
from a party, we will prepare a Rule 34 request for Plaintiff requests, pursuant to the
production of documents and incorporate our list provisions of Rule 34, Federal Rules of Civil
in it. Steps 3, 4, 5, and 6 explain how to do this. To Procedure, that defendant Park Hotels Group
request documents from a nonparty, we will use a produce the documents and things listed herein
subpoena. Steps 7, 8, and 9 explain how to prepare for inspection and copying at 10:00 A.M. on
and issue a subpoena. January 14, 2000, at the law offices of Simon &
Porter, 1000 North Central Avenue, Suite 2800,

Phoenix, Arizona 85004. Step 6 File and Serve
Notice that the preamble specifies a time and

Requests for production are served as provided by
place for production. The literal provisions of FRCP,
FRCP, Rule 5, in the same way as any other court pa-
Rule 34, require us to do this, even though in actual
per subsequent to the complaint. (There is one ex-
practice the response will nearly always consist of
ception. Some jurisdictions allow plaintiff to have
mailing photocopies rather than someone showing
the process server serve a request for production
up in person with originals (see Step 11 below).
with the complaint.) Should you also file the re-
FRCP, Rule 34(b), allows us to “specify a reasonable
quest with the clerk of the court? The answer de-
time, place, and manner of making the inspection,”
pends on the rules in effect in your jurisdiction.
but it does not give us the power to require the re-
Some courts require the entire request to be filed;
sponding party to make copies for us. (Rule 34 is to
others, seeking to minimize storage of voluminous
some extent a relic of prehistoric times when di-
discovery documents, require that you file a notice
nosaurs ruled the Earth and law offices did not have
reciting that the request for production has been
copying machines.)
served, and prohibit the filing of the actual request.
The time we specify must be at least 30 days af-
When in doubt, consult the rules of procedure and
ter the date on which we serve the request. Rule 34
local rules for the court in which the suit is pending.
does not specifically say this, but it follows from the
Your instructor will inform you of the practice in
fact that the opposing party’s written response is
your locality.
not due until 30 days have elapsed. In practice, the
documents requested and the written response to
the request usually arrive together. Your Local Notes
Following the preamble, it is quite common to _________________________________________________
include a section of instructions and definitions. For
_________________________________________________
example, we might include a paragraph defining the
term document to include such things as tape
recordings, computer disks, and other forms of elec-
tronic storage. A typical sample of instructions and DRAFTING STEPS: SUBPOENAS
definitions appears in our example request for pro-
We cannot obtain documents from nonparties us-
duction in the Learning by Example section later.
ing Rule 34 requests for production of documents,
(We do not include a complete set. Sets of instruc-
so we use subpoenas instead. Again, we use a sep-
tions and definitions that run to five or more pages
arate subpoena for each person from whom we
are not uncommon.) Instructions and definitions are
wish to obtain documents. The issuance of sub-
not required by Rule 34, but many litigators like to
poenas is governed by FRCP, Rule 45. As we have
use them, feeling that they close off some of the
seen, a traditional subpoena is a court order re-
loopholes that a responding party might otherwise
quiring someone to appear and testify at a desig-
be tempted to use to avoid disclosure. If your su-
nated time and place and, optionally, to bring along
pervising attorney is one of those who prefers to in-
documents or things for inspection at the time of
clude instructions and definitions, he will undoubt-
their appearance. FRCP, Rule 45(c), provides that a
edly have a boilerplate set from which you can cut
subpoena may
and paste into any requests that you are preparing.
command each person to whom it is
Insert List directed to attend and give testimony or to
Step 5 of Documents Requested produce and permit inspection and copying of
designated books, documents or tangible things
in the possession, custody or control of that
After the preamble and the instructions and defini- person, or to permit inspection of premises,
tions, if any, the list of documents to be produced at a time and place therein specified. . . .
appears. Here, you simply block-copy the list that
you generated in Step 2. The format, within reason, Current FRCP, Rule 45(d), expressly allows us to dis-
is up to you; as always, we would suggest that you pense with hauling in the witness when all we want
follow a suitable sample form reflecting local prac- are the documents:
tice in the court in which the suit is pending. Each A command to produce evidence or to
item in the list should be numbered, so that the re- permit inspection may be joined with a
sponding party can refer to the numbered items in command to appear at trial or hearing or at
the written response. deposition, or may be issued separately.
What if we want documents from a corporation

or other business entity? How can a corporation be
Step 8 Issue Subpoena
ordered to appear and testify? For that matter, sup-
pose we are seeking medical records from a doc- Procedures for issuing subpoenas vary consider-
tor’s office—must we subpoena the doctor in order ably from one court to another. Although a sub-
to obtain her files? poena is technically a court order, subpoenas are al-
No. In such situations we direct the subpoena most never signed by judges—judges are far too
to the custodian of records of the corporation or busy to waste time on such mundane tasks. The
business whose records we are seeking. The cus- clerk of the court is authorized to issue certain
todian of records is the person having responsibil- kinds of routine court orders without having to con-
ity for the files and records of the entity. The sub- sult a judge first, and subpoenas fall into this cate-
poena is served on the entity and the entity gory. Therefore, in many courts (including, at your
decides which individual is the custodian of the option, in federal court) when you want a sub-
records requested. poena, you prepare the subpoena form and take it
(or send it with the process server) to the clerk of
the court, who will sign it, seal it, stamp it, or do
Step 7 Prepare Subpoena Form whatever else is necessary in your jurisdiction to
make the subpoena official. The clerk may require
Subpoenas are usually one-page preprinted or you to provide another form (again, typically a one-
word processor forms in which there are blanks page preprinted form on which you fill in the
for you to fill in the caption of the lawsuit, the blanks) called a praecipe. A praecipe is a written re-
name and address of the person or entity being quest for the clerk to issue a subpoena or other rou-
subpoenaed, and the date on which appearance or tine paper. The praecipe goes into the court’s file
production of documents is required, if any. There and serves as a record that a subpoena was issued.
is also a blank for listing the documents that the In federal court under current Rule 45, we may
person is to bring; in that blank, we write “see at- dispense with the need to involve the clerk of the
tached list” and simply staple our list of docu- court in subpoena issuance. FRCP, Rule 45(a)(3),
ments to the form. provides that “An attorney as officer of the court
FRCP, Rule 45, requires that a subpoena also may also issue and sign a subpoena. . . .”
set forth a copy of the provisions of subsections
(c) and (d) of the rule. These give instructions to Serve Subpoena, File Proof of
the party receiving the subpoena regarding his
Step 9 Service, Notify Opposing Parties
right to object.
How do we determine the appearance or pro- Because we are using the subpoena to obtain docu-
duction date? How much time must we allow? The ments from a nonparty, the rules do not authorize
answer varies with the locality—your instructor us to serve the subpoena informally under FRCP,
will inform you of the customary practice in the Rule 5. Instead, in federal court, FRCP, Rule
courts of your area. In federal court, in theory, there 45(b)(1), governs: “Service of a subpoena upon a
is nothing stopping an attorney from issuing a sub- person named therein shall be made by delivering a
poena today requiring a witness to appear tomor- copy thereof to such person.”
row; as a practical matter, however, witnesses are Formal service is necessary if we want to be
likely to ignore unreasonable deadlines, and judges able to enforce the subpoena as a court order. If the
are unlikely to punish them for doing so. FRCP, Rule subpoena has been properly issued and served,
45, gives the person to whom the subpoena is di- and the person subpoenaed fails to appear or pro-
rected 14 days in which to file an objection, so, as a duce documents as ordered, we can (in theory) get
practical matter, document subpoenas should nor- the judge to have her arrested and brought before
mally allow at least 14 days for the witness to pro- the court for a good scolding or worse. As with any
duce the requested documents. court order, the judge has the power (albeit rarely
used) to punish someone who defies a subpoena by
jailing her for contempt of court.
Before we can ask the judge to enforce a sub-
Your Local Notes
poena, we must be able to prove that we served it
_________________________________________________ properly. For lawsuits in federal court, FRCP, Rule
_________________________________________________
45(b)(3), provides that “Proof of service when nec-
essary shall be made by filing with the clerk of the
court by which the subpoena is issued a statement
of the date and manner of service and of the names important activities in discovery is that of schedul-
of the persons served, certified by the person who ing and keeping track of the status of all of the docu-
made the service.” ment requests, subpoenas, and other discovery pro-
State court procedures for serving subpoenas cedures that we have set in motion. (As it happens,
and filing proof of service are typically similar to this is a task that is tailor-made for paralegals. If you
those provided under FRCP, Rule 45. Your instruc- want to impress your supervising attorney with your
tor will inform you of the usual practice in the state competence and value to the firm, this is a great
courts of your locality and tell you where to find the place to demonstrate your initiative and talent.)
governing rules.
Docket Response Due Date
Step 10 and Follow-Up
Your Local Notes
_________________________________________________ The first step in tracking the status of document re-
_________________________________________________
quests is to enter the due date for the response on
the office docket. You should do this automatically
as you send out the requests and subpoenas. You
may also wish to keep a separate calendar for your-
As a practical matter, of course, we may not al-
self, in which you enter response deadline dates for
ways care whether a subpoena is technically en-
the cases to which you are assigned.
forceable. Often, we will be making routine docu-
Often, you will check your calendar and find that
ment requests addressed to sources who are willing
a response that was due did not arrive. What then?
to cooperate and merely want a subpoena as protec-
We will study the various ways in which we can en-
tion in case someone later claims that they gave out
force compliance with our discovery requests in
information improperly. In situations of this kind—
Workshop 15, but our first step is always to send out
obtaining medical records from a hospital, for exam-
a letter demanding compliance. When? Usually, we al-
ple—we may often dispense with the expense of for-
low a few days leeway in case the response is in the
mal service and send the subpoena by mail, relying
mail, but ideally we want to send the demand letter no
on the fact that we can always serve the subpoena
more than a week or so after a deadline has passed. In
properly later if cooperation is not forthcoming.
the letter, we demand a full and complete response to
When we subpoena documents from nonpar-
our document request by some nearby date that we
ties, do we have to let our opponents in the lawsuit
specify (10 days or so in the future) and note that date
know what we are doing? In federal court, yes.
on our calendar. If that date passes without a re-
FRCP, Rule 45(b)(1), requires that “prior notice of
sponse, we send another, stronger demand.
any commanded production of documents . . . shall
You may be wondering what good it will do to
be served on each party in the manner prescribed
send a letter demanding documents if a formal re-
by FRCP, Rule 5(b).” State court rules vary, but pro-
quest did not get the job done. Why bother? Here is
fessional courtesy and ethics will usually dictate
the reason: Ultimately, if we do not get the docu-
that we both notify opposing parties when we send
ments we requested, we will file a motion to compel
out a subpoena, and that we furnish opposing par-
discovery asking the judge to order our opponent
ties with copies of any documents we receive in re-
to comply. Most judges dislike discovery disputes
sponse to the subpoena. Of course, we have a right
and consider them a waste of time, feeling that par-
to insist on similar courtesy from our opponents.
ties ought to be able to resolve such minutiae on
their own. Before we go to the judge for an order, we
Your Local Notes need to be able to show very clearly that we left no
stone unturned in trying to solve the problem with-
_________________________________________________
out bothering the court, and were unable to do so
_________________________________________________ only because our opponent obstructed us at every
turn. In that way, the judge’s irritation at having to
waste time on a discovery dispute will, we hope, be
CONCLUDING STEPS aimed at our opponent instead of at us.
Merely issuing discovery requests does not make the Catalog the Incoming
documents we need magically show up in our in-box.
Step 11 Documents
Opposing parties will resist, and third-party wit-
nesses will procrastinate; it is up to us to make sure With either a request for production or a subpoena,
that we get what we have asked for. One of the most our eventual goal is of course for our opponent to
give us access to the actual documents we re- whom we received each set. We can also use litiga-
quested. Recall that a FRCP, Rule 34, request for pro- tion support software tools to catalog documents;
duction instructs the opposing party to produce these allow us to record detailed information about
documents for inspection and copying at a specified each document and to locate documents via com-
date and time, usually at the office of the requesting puterized searches. However we choose to do it, we
party’s attorney (see Step 4 earlier). In other words, must employ some systematic method of organiz-
the procedure as contemplated by Rule 34 is for the ing and cataloging the documents that we receive.
opposing party to show up at our office with original
documents, which we could then review and copy.
In today’s world of expensive attorneys and
cheap copies, document production is almost never Analyze Response and Take
done in the manner prescribed by Rule 34. Instead, if
Step 12 Any Needed Further Action
the documents requested are not too voluminous, we
are likely to receive a stack of photocopies in the mail, In processing the responses that we receive to our
probably with a bill for the copies. (Recall that under document requests, we have several purposes:
the literal provisions of Rule 34, we, as the requesting
■ To check that we received all of the docu-
party, are supposed to make the copies. The re-
ments that we asked for, so that we can take
sponding party is not required to pay for them.)
further steps to pursue any that our oppo-
If we have requested quantities of documents
nent withheld.
amounting to more than a few hundred to a few thou-
sand pages, we may be invited to come to wherever ■ To organize and file the documents in such a
the documents are to inspect them and make what- way that we can later locate the items we need.
ever copies we desire. Usually, counsel will be able to ■ To identify any documents that we want to
come to some agreement on how, when, and where use as evidence, and begin building the proof
documents will be inspected and copied. It is not un- that we will need at trial.
common in big document cases for several attorneys ■ To improve our understanding of the facts so
and/or paralegals to spend many days or weeks clos- that we can frame additional discovery re-
eted in a conference room at opposing counsel’s of- quests and find more evidence.
fices examining scores of boxes of files, one page at
a time, and photocopying the pages deemed impor-
Following Up on Incomplete Responses—Our
tant. (Needless to say, this is a fertile source of para-
first task is to determine whether we have received a
legal employment.) In very complex lawsuits, which
complete response to our request. This effort re-
can involve literally hundreds of thousands of pages
quires us to analyze the documents produced in an
of documents, the court will often order the creation
effort to determine whether anything is missing. You
of a central document depository—a neutral loca-
will find that responses to document requests are of-
tion is obtained, clerical personnel hired, copying
ten woefully incomplete. You then have two options:
machines installed, and all of the original documents
are kept there for the duration of the lawsuit so that 1. Bring pressure to bear via the court’s power to
all parties can access them as desired. impose sanctions under FRCP, Rule 37. We will
As we receive incoming documents, we must study the steps that we can take to force oppos-
keep in mind that the goal of discovery is to develop ing parties to provide discovery in Workshop 15.
evidence that we can use to prove our case. To ac-
2. Try to get the documents in some other way.
complish that goal, we need to have some way of
Try other sources or try other discovery meth-
proving where documents came from. There are a
ods (such as a deposition of the person whom
variety of ways to accomplish this. In routine cases
you believe has custody of the document that
(i.e., those not involving many thousands of pages
you want).
of documents), our preferred approach is to stamp
each page of each document that we obtain, using a Which option should you choose? The answer de-
sequential numbering stamp. We start with number pends on a great many factors. We nearly always be-
000001 on the first page of the first document that gin with a letter to opposing counsel demanding that
we receive in the lawsuit, and continue in sequence any missing documents be supplied. To that end, one
as we receive new ones. In this way, each page of of our first tasks in analyzing documents produced in
each document has a unique number. We then keep response to a Rule 34 request for production or sub-
a log in which, at a minimum, each time we receive poena is to go through the request or subpoena item
a new bundle of documents from someone, we en- by item, compare each item with the documents we
ter the beginning and ending page numbers, to- actually received, and make a list of all of the ways in
gether with information about when and from which the opposing party’s response failed to com-
ply with our request or subpoena. Then when we of the documents on a given topic, and we can
send our demand letters, or later, if we file motions make copies of them to assemble into a file or
asking the court to intervene, we can simply attach binder for that topic if needed.
our list and save ourselves the work of having to re- Software tools are available that support docu-
analyze the documents each time. ment retrieval systems versatile enough for cases of
We will leave the task of analyzing a response nearly any level of complexity. These tend to be ex-
for completeness and preparing a list of deficien- pensive to install and operate, and considerable
cies, along with other tasks related to enforcing our training of law firm personnel may be required to
rights under the discovery rules, for more detailed make them useful. Furthermore, no litigation sup-
examination in Workshop 11. port software has yet been invented that can exer-
cise good legal judgment and make decisions about
Organizing and Filing Documents—We have al- which facts are important and which are not—the
ready mentioned the need to keep a record of the computer industry adage “garbage in, garbage out”
source of each document that we obtain in the is as apt as ever. Litigation support software can au-
course of discovery. It will come as no surprise that tomate a great deal of the tedious job of keeping
good document management in complex lawsuits track of which documents are where and what each
can involve far more than that. In cases involving one’s content is, but it still takes competent people
large quantities of documents, it is a daunting task with legal training (often paralegals) to read each
to maintain a filing and indexing system that allows document, identify the important points, and enter
us to access the documents we need in a useful way. them into the system.
Here is an example of the kind of assignment
you can expect to receive as a paralegal in charge of Identifying and Developing Evidence to Be
the documents in a lawsuit: Your supervising attor- Used as Exhibits—Not all of the documents you
ney is about to take the deposition of a key witness, gather during discovery will be used as evidence—
so he asks you to assemble every document in far from it. Many a good case has been lost at trial by
which the witness’s name is mentioned. In a case in- presenting such voluminous and complicated evi-
volving only a few hundred pages of documents, dence that the main themes become lost in the noise.
you can probably accomplish this task in a short One of your tasks, as you sift through docu-
time by skimming through the file. But if there are ments, is to make judgments about which docu-
thousands of pages of documents, you will need an ments are important enough to be used in trial, and
indexing system of some kind. to begin taking the steps necessary to ensure that
There are many possible ways of organizing you will be able to use them. In general, you will need
document filing systems, and choices are made to be able to prove the authenticity of each docu-
based on individual preferences and the needs of a ment and to overcome any objections that opposing
given case. In most situations, a simple chronolog- parties may make. The easiest way to establish the
ical organization is best; that is, we simply file the authenticity of documents is to get opposing parties
documents in the order in which we received to admit that they are authentic; FRCP, Rule 36, pro-
them. If we have number-stamped the pages (see vides a procedure that we can use for this purpose
Step 11 earlier), this system allows us to find any (see discussion of requests for admissions in Work-
document easily by its page number. We can then shop 10). To anticipate objections that our oppo-
create indices by topic if we wish, listing the page nents may make to the introduction of particular
numbers of all documents that pertain to a partic- documents, we need to know in advance what the
ular issue or person. In our list of facts to be objections are. FRCP, Rule 33, gives us a useful tool,
proved (see preceding chapter, “Introduction To written interrogatories, for prying this kind of infor-
The Discovery Workshops”), we can note the page mation from opposing parties (see Workshop 10).
numbers of documents that bear on each of the
facts we have listed. Tempting as it may be to try Setting Up Further Discovery—As we saw in the
to organize the documents themselves by topic or Introduction To The Discovery Workshops, discov-
in some other way that groups related documents ery is an ongoing process of requesting, analyzing
together, experience teaches that the complexity responses, filling in gaps, and making new requests.
of such schemes usually outweighs their useful- As we review and analyze the documents that flow
ness. It is better, in most situations, to leave the in response to our requests for production and sub-
documents in their original order and use separate poenas, one of our tasks is to identify leads to other
tools to organize them such as our list of facts to documents that we did not think of the first time
be proved, a topic index, or document retrieval around. Often, the documents we receive mention
software of the kind discussed in the next para- other documents that we do not yet have; we add
graph. Using these tools, we can always locate all these to our master list. Even when the documents
produced do not make specific reference to other 2. All documents or records evidencing, reflect-
documents, reading them may trigger ideas that ing, recording, or pertaining to any telephone
will lead us to other evidence. In this process, the calls made from the front desk of the Banbury
quality of your results will depend on your creativ- Park Hotel from 6:00 P.M. on February 5, 1996, to
ity and judgment—still another reason why trained 6:00 A.M. on February 6, 1996.
paralegals are in demand. (Here, we limit ourselves to the specific time
period that we are interested in so that our re-
Your Local Notes quest will not appear overbroad if challenged.)
_________________________________________________ 3. All documents, including without limitation
personnel records, pertaining to the employ-
_________________________________________________
ment of Arnold Trevayne by Park Hotels Group.
(What we are really after is Arnie’s person-
nel record, but we word the request this way to
Document Requests: prevent the hotel from withholding part of its
records on Arnie by claiming that they are not
Learning by Example part of his personnel record.)
We now use what we have learned to prepare a 4. All documents comprising, reflecting, or per-
Rule 34 request for production seeking documents taining to any complaint made by any person at
from defendant Park Hotels Group on behalf of any time, the subject matter of which related to
Shannon Martin. We also prepare a subpoena to any conduct by Arnold Trevayne.
obtain the records of Dr. Collins’s hospitalization (This illustrates the use of redundancy in dis-
in Las Vegas. covery requests; see sidebar. Anything covered
by this item should also be covered by the pre-
PREPARATORY STEPS ceding one, but we want to approach important
categories from several different angles so as to
allow as little hedging as possible. Also notice
Plan Your Request and List
Step 1 the Documents Requested
that we asked for complaints by “any person,”
not just hotel guests.)
We begin by making a list of all specific documents 5. All documents comprising, reflecting, or per-
and categories of documents that we can think of taining to any complaint made by any hotel
that might help us prove our case. This is largely a guest at any time after January 1, 1995, the sub-
creative process; no mechanical formula exists ject matter of which related to any defect or
that guarantees we will think of every possible doc- claimed defect in any guest room door or lock.
ument that should be requested. We prime our (You will sometimes see requests that ask
mental pumps by reviewing our research and for, i.e., “any complaint made during the three
notes, examining our issues outline, and making years preceding this lawsuit.” We prefer to use
notes as ideas occur to us. Here are some of the cat- specific dates whenever possible—doing so
egories of documents we might include on our mas- makes it much harder for a responding party to
ter list, accompanied by comments in italics. See “accidentally” misremember the date on which
the earlier sidebars on redundancy and discovery the lawsuit started.)
legalese for additional guidance on composition, 6. All documents, including without limitation reg-
style, and wording. (For brevity, we limit ourselves istration cards, reflecting the identities of all
to a few examples—the list in a real lawsuit would hotel guests occupying or registered in Rooms
be much longer.) 400 through 447 of the Banbury Park Hotel on
1. All documents reflecting or pertaining to any the night of February 5, 1996.
maintenance performed on any guest room (We want the identities of other guests on
doors or locks at Banbury Park Hotel after Jan- Shannon’s floor so that we can contact them and
uary 1, 1995. find out whether they may have witnessed any-
(Notice that we are being very general. We thing useful to us.)
have purposely not specified by whom the main- 7. All documents, including without limitation
tenance might have been performed, for exam- medical records and bills of the hospital and
ple. That way, if the hotel had some of its main- other medical service providers, arising from
tenance done by an outside contractor, it would or pertaining to the hospitalization and treat-
still be required to furnish us with the records.) ment of defendant Arthur Collins for the in-
juries alleged in defendant Arthur Collins’s party, and any other person concerning the
counterclaim against plaintiff. facts or subject matter of this suit.
(This version is for our Rule 34 request for (. . . then we ask in a more general way, so
production to defendant Collins. We put the bur- that defendant cannot withhold information by,
den on defendant to decide what hospitalization for example, claiming that “this isn’t a witness
and treatments he is claiming compensation for.) statement, it’s just a letter from the witness.”)
8. All documents, including without limitation 13. All documents reflecting, comprising, or per-
medical records and bills of the hospital and taining to any report of any expert witness who
other medical service providers, arising from will testify at the trial of this matter or whose
or pertaining to the hospitalization and treat- opinion is otherwise subject to disclosure un-
ment of defendant Arthur Collins at Las Vegas der the provisions of FRCP, Rule 26.
Municipal Hospital on or after February 6, 1996. (Expert witnesses often prepare reports sum-
(This version is for the subpoena to the hos- marizing their conclusions for their clients; the
pital—here we must be more specific since the expert’s report will be indispensable in preparing
hospital has no way of knowing what Dr. Collins to take a deposition. Not only that. . .)
is counterclaiming for.)
14. All documents provided by or on behalf of Park
We will also have a number of generic cate- Hotels Group at any time to any expert witness.
gories of documents to ask for, but most of these (. . . we can also learn a great deal about
will be plugged in or adapted from forms developed what to expect from an opposing party’s expert
in previous cases. By covering more general terri- witness by finding out what evidence the expert
tory, these generic categories will help plug any was given to review.)
gaps that may remain in our specific list. Here are a
The numbering and sequence in our master list
few sample generic requests (again, highly
does not matter, since we will be block-copying
abridged due to space limitations):
parts of the list to the specific requests. Modern
9. All documents that defendant Park Hotels word processors will renumber the items automati-
Group will seek to introduce as an exhibit at the cally after they are copied.
trial of this matter.
(But wait—will not Park Hotels easily weasel
Decide from Whom to Request
out of this one by responding that they have not Step 2 Each Document or Category
yet decided what exhibits they will use? Almost
certainly that will be defendant’s initial response,
of Documents
but under FRCP, Rule 26(e)(2), defendant has a
In Shannon’s suit, Allen Porter will sooner or later be
continuing duty to supplement the response
requesting or subpoenaing documents from a num-
when it does decide. See sidebar.)
ber of sources. These will certainly include the op-
10. All documents that Park Hotels Group will use posing parties in the suit—Park Hotels Group, Inc.,
in any court proceeding in this matter, includ- and Dr. Collins—and will likely include other sources
ing without limitation demonstrative evidence, such as the Las Vegas Police Department, Arnie Tre-
documents used for the purpose of refreshing vayne, the hospital where Dr. Collins was treated, any
a witness’s recollection, and exhibits to mo- physicians who treated Dr. Collins, any outside con-
tions or affidavits. tractors who worked on the hotel room door or lock,
(Again, note the redundancy. We want to be perhaps the hotel’s telephone service provider, the
sure that there will be no surprises in documents company that provides hotel security services to
submitted to the court, so we ask for them in sev- Banbury Park Hotel, if any, and any others that Shan-
eral different ways.) non’s attorney can think of who may have documents
that would be helpful in preparing Shannon’s case.
11. All documents reflecting, comprising, or per-
We will review the master list of documents that
taining to any statement obtained by any person
we want item by item and ask ourselves who might
of any witness in connection with any matters
have each one. Often, we request the same items
relating to this lawsuit.
from multiple sources. Continuing with the example
(First, we ask for witness statements specifi-
of looking for documents about Arnie Trevayne’s
cally. . . .)
background and prior conduct, we include items 3
12. All documents reflecting, comprising, or per- and 4 from our list in our Rule 34 request for pro-
taining to any communication between any duction to defendant Park Hotels Group, Inc. We
party to this suit or any representative of any also subpoena the same items from Arnie.
DRAFTING STEPS: write a suitable preamble and add any instructions

REQUESTS FOR PRODUCTION and definitions that we want to include. For brevity,
we have only included three of the more common-
place ones. Your instructor or supervising attorney
Formal Parts: Caption,
Step 3 Date and Signature Lines,
probably has a preferred set of instructions and de-
finitions that you can copy. (We should note that
Certificate of Service
the third of our instructions is commonplace in an-
other way, in that it probably goes well beyond
Preamble, Instructions,
Step 4 and Definitions
what Rule 34 actually authorizes us to ask for. You
will often see such “overreaching” instructions,
and we will show you how to respond to them in
Insert List of Documents Workshop 11.)
Step 5 Requested After the instructions and definitions, if any, we
insert our list. The resulting Rule 34 request for pro-
We first copy the caption and formal parts from duction is shown in Figure W9–1.
the form that we created in Workshop 4. Then we
Figure W9–1 Request for Production
SIMON & PORTER

Allen Porter
(602)555-4321
DISTRICT OF ARIZONA

) NO. CIV 98-01456 PHX RGS
Plaintiff, )
) REQUEST FOR PRODUCTION
v. ) OF DOCUMENTS
)
corporation; )
)
Defendants. )
_______________________________________________ )
Plaintiff requests, pursuant to the provisions of Rule 34, Federal Rules of Civil Procedure, that
defendant Park Hotels Group produce the documents and things listed herein for inspection and
copying at 10:00 A.M. on January 14, 2000, at the law offices of Simon & Porter, 1000 North Central
Avenue, Suite 2800 Phoenix, Arizona 85004.
INSTRUCTIONS AND DEFINITIONS
1. “Document” means and includes writings, letters, memoranda, contracts, agreements,

conveyances, drawings, graphs, charts, photographs, computer printouts, electronic mail messages,
phone records, computer disks and/or disk files, audio, video, or data tape recordings, and any other
data compilations from which information can be obtained.
Figure W9–1, continued
2. You are required to produce all documents of the kinds described herein that are in your
possession or control, including without limitation all documents that are now or at any time during the
pendency of this lawsuit in your own possession or that of your attorneys, partners, officers, employees,
agents, or other representatives or which you have the power or ability to obtain from others.
3. In the event that you claim that any document requested herein is not subject to production
by reason of any privilege, you are required to state the basis for your claim of privilege in your written
response hereto, which statement shall include a description stating, for each and every document as
to which you claim privilege, the general nature or type of document, the name of the author of the
document, the date of the document, the specific privilege claimed, and the legal and factual basis for
the claim of privilege as to that document.
DOCUMENTS TO BE PRODUCED
1. All documents reflecting or pertaining to any maintenance performed on any guest room
doors or locks at Banbury Park Hotel after January 1, 1995.
2. All documents or records evidencing, reflecting, recording, or pertaining to any telephone
calls made from the front desk of the Banbury Park Hotel from 6:00 p.m. on February 5, 1996, to 6:00
a.m. on February 6, 1996.
3. All documents, including without limitation personnel records, pertaining to the employment
of Arnold Trevayne by Park Hotels Group.
4. All documents comprising, reflecting, or pertaining to any complaint made by any person at
any time, the subject matter of which related to any conduct by Arnold Trevayne.
5. All documents, including without limitation registration cards, reflecting the identities of all
hotel guests occupying or registered in Rooms 400 through 447 of the Banbury Park Hotel on the
night of February 5, 1996.
6. All documents comprising, reflecting, or pertaining to any complaint made by any hotel
guest at any time after January 1, 1995, the subject matter of which related to any defect or claimed
defect in any guest room door or lock.
7. All documents, including without limitation medical records and bills of the hospital and
other medical service providers, arising from or pertaining to the hospitalization and treatment of
defendant Arthur Collins at Las Vegas Municipal Hospital on or after February 6, 1996.
8. All documents that defendant Park Hotels Group will seek to introduce as an exhibit at the
trial of this matter.
9. All documents that Park Hotels Group will use in any court proceeding in this matter,
including without limitation demonstrative evidence, documents used for the purpose of refreshing a
witness’s recollection, and exhibits to motions or affidavits.
10. All documents reflecting, comprising, or pertaining to any statement obtained by any person
of any witness in connection with any matters relating to this lawsuit.
11. All documents reflecting, comprising, or pertaining to any communication between any
party to this suit or any representative of any party, and any other person concerning the facts or
subject matter of this suit.
12. All documents reflecting, comprising, or pertaining to any report of any expert witness who
will testify at the trial of this matter or whose opinion is otherwise subject to disclosure under the
provisions of FRCP, Rule 26.
13. All documents provided by or on behalf of Park Hotels Group at any time to any expert witness.
DATED this ___ day of ____________, 2000.

SIMON & PORTER
_____________________________
Allen Porter
Attorney for plaintiff
continued
Figure W9–1, continued
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing was served in accordance with the requirements of
FRCP, Rule 5, by mailing / hand-delivering a copy thereof this ____ day of _______________, 2000 to:
Gail Stoddard, Esq.

500 Main Street
Dallas, Texas
[signature goes here]
practice before the U.S. district court, can issue the

subpoena himself simply by signing it.1 (In other
courts, depending on local practice, it might be nec-
After Allen Porter reviews the request for produc- essary to take the completed subpoena to the clerk’s
tion and signs it, we serve copies by mail on defen- office to be stamped, or to obtain from the clerk
dants (see Workshop 7). Which defendants? Both of blank, prestamped forms to fill out in the first place.)
them. We serve it on Park Hotels Group’s attorney The completed subpoena is shown in Figure
because Rule 34 requires us to serve the request on W9–2.
the party to whom we are making it; we serve it on
Dr. Collins’s attorney because FRCP, Rule 5, requires Serve Subpoena, File Proof of
us to serve all court papers on all opposing parties. Step 9 Service, Notify Opposing Parties
If we are in a jurisdiction that has restricted the
filing of discovery papers [see Workshop 7 and Because Shannon’s lawsuit is in federal district
FRCP, Rule 5(d)], we prepare a notice reflecting the court, FRCP, Rule 45(b)(1), allows the subpoena to
fact that we have served a request for production be served by “any person who is not a party and is
on defendant Park Hotels Group. We serve a copy of not less than 18 years of age.” As a practical matter,
the notice on each defendant with the request itself, we would usually have a process server do the job.2
and we file the original notice with the clerk of the The process server provides the necessary proof of
court. If we are in a jurisdiction that still requires service, which we file with the clerk of the court,
the filing of discovery papers, we file the original re- keeping a copy for our own file. Rule 45’s require-
quest for production with the clerk of the court. ment that we notify opposing parties of the sub-
poena is most easily satisfied simply by mailing a
DRAFTING STEPS: SUBPOENAS copy to each defendant.
1
Step 7 Prepare Subpoena Form Allen Porter can sign even though the person being
subpoenaed—the custodian of records of Las Vegas
Municipal Hospital—is outside the District of
Arizona, because the subpoena pertains to a lawsuit
Step 8 Issue Subpoena
that is in the District of Arizona. See Rule 45(a)(3)(B).
2
Since we would have to find a process server in
Preparation of the subpoena form is easy; we simply another state, however, and since this is a routine
pull out a printed form (or word processor form) and subpoena for medical records, we may decide to
fill in the blanks. Because Shannon’s lawsuit is in fed- deliver the subpoena by mail and see whether the
eral court, Allen Porter, as an attorney admitted to hospital will comply voluntarily.
Figure W9–2 A Sample Subpoena

DISTRICT OF ARIZONA
SHANNON MARTIN, a single woman )

)
) NO. CIV 98-01456 PHX RGS
Plaintiff, )
v. )
) SUBPOENA
ARTHUR COLLINS and JANE DOE ) IN A CIVIL CASE
PARK HOTELS GROUP, INC., a )
Delaware corporation; )
)
Defendants. )
_______________________________________________ )
TO: Custodian of Records, Las Vegas Municipal Hospital, 233 B Street, Las Vegas, Nevada
YOU ARE COMMANDED to appear in the United States District Court at the place, date and time
specified below to testify in the above case.
PLACE OF TESTIMONY COURTROOM:
TIME AND DATE:
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the
taking of a deposition in the above case.
PLACE OF DEPOSITION:
TIME AND DATE:
YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or objects at the place, date and time specified below:
1. PLACE: Law offices of Allen Porter, SIMON & PORTER, 1000 North Central Avenue, Suite 2800,
TIME AND DATE: January 14, 2000
DOCUMENTS TO BE PRODUCED:
1. All documents and records relating to the care and treatment of Dr. Arthur Collins, SSN aaa-bb-
cccc, since February of 1996 including, without limitation, intake records and notes, medical tests and
test results, progress notes, any diagnosis or diagnostic tests, medications, therapies, billing
statements, surgical and follow-up notes and all discharge documents.
YOU ARE COMMANDED to permit inspection of the following premises at the date and time
specified below:
PREMISES:
TIME AND DATE:
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, director, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the matters on which the person will
testify. FRCP, Rule 30(b) (6).
Allen Porter
Issuing Officer Signature and Title
(Indicate if Attorney for Plaintiff or Defendant)
continued
Figure W9–2 A Sample Subpoena, continued

SIMON & PORTER
Allen Porter
(602) 555-4321
Rule 45, Federal Rules of Civil Procedure, Parts C & D
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps
to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which
the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of his duty an
appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
(2)(A) Subject to paragraph (d)(2) of this Rule, a person commenced to produce and permit inspection and
copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time
is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except
pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party
serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to
compel the production. Such an order to compel production shall protect any person who is not a party or an
officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles
from the place where that person resides, is employed or regularly transacts business in person,
except that, subject to the provisions of clause (c)(3)(B)(iii) of this Rule, such a person may in order
to attend trial be commanded to travel from any such place within the State in which the trial is
held; or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena:
(i) requires disclosure of a trade secret or other confidential research, development or commercial
information, or
(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or
occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel
more than 100 miles to attend trial, the court may, to protect a person subject to or affected by
the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is
issued shows a substantial need for the testimony or material that cannot be otherwise met
without undue hardship and assures that the person to whom the subpoena is addressed will be
reasonably compensated, the court may order appearance or production only upon specified
conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the
usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to
protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description
of the nature of the documents, communications or things not produced that is sufficient to enable the
demanding party to contest the claim.
CONCLUDING STEPS Document Requests:

Learning by Doing
Docket Response Due Date
PROJECT 1
We make a notation on the office’s central calendar Your task for this workshop is as follows: You are a
that Park Hotels Group’s response to the request paralegal in the office of Roger Yarborough, and you
for production of documents in Martin vs. Collins is are assigned to prepare (1) an initial Rule 34 request
due on January 14, 2000. Similarly, we note the due for production of documents on behalf of Dr. Collins
date for the documents called for by the subpoena to be served on Shannon, and (2) a subpoena for
to Las Vegas Municipal Hospital. When the indi- the records pertaining to Shannon’s follow-up treat-
cated dates arrive, the calendaring system will re- ment for her broken finger by her physician, Dr.
mind us to check whether we have received the Roland Carter.
documents and to follow up with demand letters if For simplicity, assume that the lawsuit is pend-
necessary. ing in the federal district court having jurisdiction
in your locality (or, at your instructor’s option, in
the state court of your locality), and that all parties
Catalog the Incoming
Step 11 Documents and attorneys are present in your locality. You may
invent suitable local addresses for the parties, at-
torneys, and others as necessary.
When we receive the requested documents, we
number stamp the pages in sequence and file the
documents in our office filing system in the order in EXERCISES
which we received them. We make a record in the
file of the page numbers, where they came from, 1. (Step 1) Make a master list of all specific doc-
and when we received them. uments and categories of documents that you
might want to obtain on behalf of Dr. Collins.
Analyze Response and Take 2. (Step 1) Obtain one or more document re-
Step 12 Any Needed Further Action quests from actual lawsuits and make your own
list of generic document categories to be re-
quested. Add the appropriate ones to your
Now we review the documents, page by page. We master list.
compare them to our request and make a list of any
items that seem to be missing or incomplete. As we 3. (Step 2) From your master list, choose the
read the documents, we make notes of any ideas items that you will include in the document re-
that occur to us concerning other discovery that quest to Shannon Martin and in the subpoena
we may need to take or other documents that we to Shannon’s physician, and make separate
may wish to obtain. We make note of any docu- lists for each of these.
ments that are likely to be important in proving our 4. (Step 4) Obtain one or more document re-
case (adding notations to our issue outline is one quests from actual lawsuits having an Instruc-
way to do this). tions and Definitions section. Read the instruc-
A case like Martin vs. Collins, arising from a tions and definitions and make up your own set
physical injury rather than from some dispute over for use in your own discovery requests. (In do-
paperwork, is unlikely to involve huge volumes of ing this, it is perfectly proper to plagiarize
documents, so we will not need a sophisticated doc- shamelessly. Do not feel that you have to
ument indexing scheme; careful note taking by change wording that works well the way it is.)
hand will probably suffice. If this were a case in-
5. (Steps 3, 4, and 5) Prepare the document re-
volving large quantities of complex documents, we
quest to Shannon Martin.
would use appropriate document retrieval soft-
ware, and we would enter data into the system as 6. (Step 6) Find out whether the rules of the
we reviewed the documents. court in which Martin vs. Collins is assumed to
be pending allow discovery papers to be filed What is the governing rule? Write a paragraph
with the clerk of the court or not. If not, prepare summarizing what you found.
a notice suitable for filing, reciting the service
of your request for production on Allen Porter. PROJECT 2
7. (Steps 7 and 8) Obtain a subpoena form of the This project consists of a game intended to be
kind used in the court in which Martin vs. played by two competing teams. (In a large class, it
Collins is assumed to be pending. Fill in the may be desirable to break the class into several
blanks appropriately and insert or attach the pairs of teams.)
list of documents to be produced. Find out, un-
der the rules of the court in which Martin vs. Instructions for Team A—Assume that you rep-
Collins is assumed to be pending, whether resent a wealthy client who has just lost a lawsuit
Roger Yarborough can issue the subpoena or and had judgment entered against him for a large
whether it must be issued by the clerk. sum of money. Write a list of all the documents that
8. Find out whether, under the rules of the court in you can think of that your client might have which
which Martin vs. Collins is assumed to be pend- would contain information about any of his assets.
ing, it is possible to issue a subpoena for pro- Try to list as many specific documents as you can.
duction of documents without requiring a wit-
Instructions for Team B—Assume that you rep-
ness to appear and give testimony at the same
resent someone who has won a large judgment
time. If not, find out what the customary local
against Team A’s wealthy client, and you are as-
practice is for obtaining documents from non-
signed to prepare a request for production of docu-
party witness(es) and prepare the necessary
ments that will require Team A to give you as many
documents to accompany your subpoena.
of the documents on their list as possible.
9. Find out, under the rules of the court in which When both teams have completed their work,
Martin vs. Collins is assumed to be pending, compare Team B’s request for production with the
how to have a subpoena served on a nonparty documents on Team A’s list and see how many of
witness. Must it be done by a process server? Team A’s documents “escaped.”
PRACTICE POINTERS
Numbering Documents
Document organization requires that each page of every document re-

ceived from the opposing parties be numbered. The mechanics of this vary de-
pending on the size of the case, that is, how many documents are involved, and
the litigation software invested in by the firm. The reason for marking each
page remains the same, however, regardless of the mechanics of the number-
ing process. Only by marking each page (both front and back) and by then
carefully indexing those documents can a legal assistant have any hope of
quickly and efficiently locating any document at any time when an attorney re-
quests it. After you have reviewed hundreds or thousands of documents, they
all begin to blur in your memory until the request to single out a particular doc-
ument becomes an ordeal of virtually Herculean proportions. The lesson you
can glean from hearing tales related by more experienced legal assistants is to
number and index documents as soon as they come into your possession.
Most legal assistants prefer numbering documents in the order in which
they are produced. Reorganizing them before they are numbered makes it dif-
ficult later to determine which documents were produced in response to
which request. Keeping documents in the order in which a client provides
them is also generally appreciated by clients.
The actual numbering process varies depending on the level of technical
sophistication of the law firm. Traditionally, documents were “Bate-stamped”
using a machine by the same name. This resulted in an inked, 6- to 10-digit
number on the page; the number of the Bates stamping machine automatically
PRACTICE POINTERS
Numbering Documents continued
advanced to the next sequential number as the numbering machine was used.
Today Bates numbering is often done using a computerized process that ob-
viates the need for any number to actually be affixed to the page.
In small cases an alphanumeric system can be used with the first one or
two letters designating the source of the documents and the following num-
bers identifying each page of the document. Alternatively, if a numbering ma-
chine is equipped with only numbers, all numbers can be used. In such a case
the first two numbers represent the source of the documents and the follow-
ing numbers represent the page numbers of each document.
Once the numbering process is complete, you must then index the docu-
ments. In the absence of any litigation support software, you can use a word
processing program to create a simple index. Minimally, you must indicate the
number the document begins with, the date the document was prepared, and
a description of the document. A separate index should be prepared for each
individual or entity that produces records.
TECHNO TIP
Programs are available to assist in han- tion software, the ability to have all rele-
dling document-laden cases. Litigation vant documents, depositions, and re-
support software can scan documents, search files readily available is critical for
label and organize them, and coordinate pretrial motion practice. These types of
them with deposition testimony, which it software packages can bring up a por-
also organizes. A concordance of all tion of a person’s deposition testimony
words or phrases used in a deposition (on video if you had a videotaped depo-
can be created for instant retrieval. These sition) and cross-reference it to answers
programs, such as Utility Support Ser- to interrogatories, requests for admis-
vices, Inc’s. SUMMATION and inData sions, other documents, and other depo-
Corporation’s trio of TrialDirector, Docu- sitions. You can cut and paste to your
mentDirector, and DepositionDirector, word processor as the document is being
can be invaluable in coordinating a case created from the real documents con-
for trial. Even without the “bells and tained in your database, without having
whistles” often found in trial presenta- to take up two conference tables!
FORMS FILE
Include samples of the following in your forms file:

■ Request for production of documents
■ Subpoena duces tecum
KEY TERMS
Custodian of records Discoverable Discovery cutoff date

Written Discovery WORKSHOP
10
INTRODUCTION: INTERROGATORIES to research factual issues and think about the
AND REQUESTS FOR ADMISSIONS claims and defenses involved in the case. In
effect, we are prodding our opponent into ac-
In this workshop, we begin examining procedures tion when it might be preferable to let her
that allow us to make our adversary answer ques- drift along in a state of complacency.
tions. FRCP, Rule 33, allows us to submit written ques-
tions, called interrogatories, to an opposing party, What is written discovery good for, then? Per-
and requires the opposing party to answer them haps we would be better off to just skip it, and rely
within 30 days. FRCP, Rule 36, provides a formal way entirely on depositions? No; although written dis-
of establishing uncontested facts in advance of trial, covery is very unlikely to pry loose any “smoking
so that court time will not be wasted on trivial issues guns,” it does have several important uses, each of
that are not really in dispute in the first place. This is which we consider in detail in this workshop. These
done by submitting a request for admissions, requir- uses fall into three general categories:
ing the opposing party to furnish written admission or 1. Getting background facts. We can find out names,
denial of the facts stated in the request. Both of these addresses, locations of documents, and similar
procedures involve written questions and answers, information that will enable us to track down
and both can be used to ask questions only of a party. the specific evidence that we need.
We can also question either a party or a non-
2. Placing limits on our opponent’s case. We do this
party verbally, face to face. Rule 30 allows us to do
by framing open-ended questions that ask our
this by taking a deposition. We will examine the pro-
opponent to disclose all evidence that he has
cedures for taking depositions in Workshop 13.
on a given issue. Here, opposing counsel’s nat-
ural tendency to disclose as little as possible
USES OF INTERROGATORIES AND works in our favor: Within reasonable limits, ev-
REQUESTS FOR ADMISSIONS idence not disclosed in response to a proper in-
Strategically, written discovery serves a fundamen- terrogatory will not be allowed at trial.
tally different purpose than does deposition discov- 3. Pinning down known facts. There is a difference
ery. Answers to interrogatories and responses to re- between knowing a fact and being able to prove
quests for admissions are not very well suited for it. Interrogatories and requests for production
ferreting out the proof that we will need to establish give us a simple and inexpensive way of estab-
the elements of our own case. Here are a few of the lishing the noncontroversial details of our case,
disadvantages of written discovery: by getting our opponent to admit them.
■ Answers to interrogatories and responses to With these strategic considerations in mind, we now
requests for admissions are invariably written examine the procedure governing interrogatories
by the opposing party’s lawyer, not by the op- and requests for admissions.
posing party himself. Therefore, they are
likely to be carefully drafted to give away as
little as possible. PROCEDURE FOR INTERROGATORIES
AND REQUESTS FOR ADMISSIONS
■ The answering party has at least 30 days to
think about the questions and hone the an- An interrogatory is simply a written question that we
swers. The responses will be thoroughly edited. submit (or, in common legalese, “propound”) to our
■ There is no immediate opportunity to follow up opponent. We submit interrogatories in sets contain-
evasive or ambiguous answers with additional ing a series of numbered questions. To get an idea of
questions, as there would be in a deposition. what an interrogatory looks like, consider this exam-
ple, which was taken at random from a larger set:
■ When we send out interrogatories, our ques-
tions may reveal to our opponent information Interrogatory No. 3
about the strengths and weaknesses of our
State the name, address, and telephone
own case. number of each and every person who
■ To answer interrogatories and requests for witnessed the automobile collision described in
admissions, the opposing attorney will have plaintiff’s complaint.
386 WORKSHOP 10 Written Discovery
A request for admission looks nearly the same (and even today in some courts), sets of inter-
as an interrogatory, except that instead of being rogatories were prepared with blank spaces for
worded as a question, it begins with the words “Ad- the answers. Using a photocopy (or, earlier, a car-
mit that . . . ,” followed by a statement expressing the bon copy) of the set of interrogatories, the re-
fact to be admitted. Here is an example of a typical sponding party typed the answers into the blanks,
request for admission, again taken at random from a typed the words “and answers thereto” onto the ti-
larger set: tle in the caption, and added a signature page and
mailing certificate. Nowadays, it may be more con-
Request For Admission No. 7
venient for the responding party to obtain an elec-
Admit that the Real Estate Purchase tronic copy of the interrogatories, add the an-
Agreement dated March 15, 2000, attached as swers to each, and print the whole document.
Exhibit 1 to plaintiff’s complaint bears the genuine Either way, the end result is a document in the
signature of defendant John Smith as seller. form of a court paper, with a caption, an appropri-
The procedure governing interrogatories ap- ate title, a series of questions each followed by its
pears in FRCP, Rule 33. The procedure governing re- answer, date and signature lines for the answering
quests for admissions appears in FRCP, Rule 36. party and the answering party’s attorney, and a
State court procedures in most states are similar to certificate of mailing.
those under the federal rules; your instructor will in- Responses to requests for admissions are es-
form you of the applicable rules or statutes for the sentially identical in form and appearance; the only
state courts in your locality, and apprise you of any difference is the title, and the fact that the answers
important differences. merely say either “admitted” or “denied,” or set
forth an objection, if any.
Your Local Notes
Requests for Admissions: Why Not Just Say
_________________________________________________ “No”?—We have seen that FRCP, Rule 36, offers a
_________________________________________________ procedure whereby an opposing party can ask us to
admit facts. But why would we ever want to help
out someone who is suing us by admitting facts at
Rules 33 and 36 are similar in many respects: their request? Why not refuse to admit anything,
Both interrogatories and requests for admissions and force our opponent to prove each and every de-
can be submitted only to a party, in both cases a tail of his case?
written response is expected, and under both rules In fact, we have every right to do just that if
the responding party is given 30 days to respond we want to, but if we refuse to admit facts that are
unless a shorter or longer response time is ordered not really in dispute we may find ourselves paying
by the court or agreed to by the parties. for our lack of cooperativeness. If we refuse our
Sets of interrogatories and sets of requests for opponent’s request for admission of a fact, and
admissions are also nearly identical in form and ap- the judge later determines that we did not have
pearance. Both take the form of a court paper, with reasonable grounds for our refusal, FRCP, Rule 37,
the usual caption, date and signature lines, and cer- requires the judge to make us pay the cost in-
tificate of mailing. Following the caption is a pream- curred by our opponent in proving the fact, in-
ble, then perhaps a list of instructions and defini- cluding attorney’s fees. FRCP, Rule 37(c)(2), pro-
tions. The numbered questions or requests for vides in part:
admissions comprise the body of the document. We If a party fails to admit the genuineness
serve a copy of the set of interrogatories or re- of any document or the truth of any matter
quests for admissions on the party who is to re- as requested under Rule 36, and if the party
spond to them. In courts that do not restrict the fil- requesting the admissions thereafter proves
ing of discovery papers, we file the original set of the genuineness of the document or the truth
interrogatories or requests for admissions with the of the matter, the requesting party may apply
clerk of the court. In courts that do restrict the fil- to the court for an order requiring the other
ing of discovery papers, we file a notice reciting that party to pay the reasonable expenses incurred
in making that proof, including reasonable
we served them.
attorney’s fees. The court shall make the order
As we will see in more detail in Workshop 11, unless it finds that . . . the party failing to
Responding to Discovery Requests, answers to in- admit had reasonable ground to believe that
terrogatories are prepared by taking the set of in- the party might prevail on the matter, or . . .
terrogatories itself and adding the answers to it. there was other good reason for the failure
Before word processing became commonplace to admit.
WORKSHOP 10 Written Discovery 387
There is also a practical reason for being rea- In this workshop, we will follow the approach of
sonably cooperative in admitting minor facts that combining requests for admission and interrogato-
are not seriously in dispute: Judges are quite apt ries in the one document. Your instructor will inform
to become annoyed with litigants who make trials you of whether this practice is appropriate under
take longer by forcing others to put on formal the customs of your locality. If not, we would suggest
proof of facts that are not really in doubt. Judges that it is still best to think of the drafting task as a sin-
who are annoyed have plenty of subtle ways of get- gle undertaking, and write interrogatories and any
ting even with the offending party. Excessive ob- related requests for admissions at the same time,
structiveness in admitting facts may also provoke rather than to think of interrogatories as one project
our opponent into being equally obstructive in re- and requests for admissions as another. Our focus
sponding to our own requests for admissions, should be on our discovery goals and on the infor-
making our own case more expensive and time mation we are trying to discover, rather than on the
consuming to prove. mechanics and paperwork involved in discovering
The question of whether and how much to ad- it. Our approach should be first to decide what in-
mit in response to requests for admissions is an information or evidence we are trying to obtain, and
teresting one that we will examine in more detail in then to choose whichever discovery tool—or com-
Workshop 11. bination of tools—is best suited for the job.

_________________________________________________ _________________________________________________
_________________________________________________ _________________________________________________
Combining Interrogatories and Requests for

Admissions in the Same Court Paper—Given When Do We Use Interrogatories and Re-
the fact that interrogatories and requests for ad- quests for Admissions?—Under the federal
missions are so similar in form and purpose, it rules, and in many state courts, discovery is per-
might occur to us to wonder why we don’t just mitted only after the suit has gotten well under
combine both in the same document and title it way. The discovery process as contemplated by
“Interrogatories and Requests for Admission”? In FRCP, Rule 26, begins with a meeting between the
fact, many litigators favor this practice. Even opposing attorneys to plan out the discovery that
though the federal rules do not specifically autho- needs to be accomplished, schedule it, and set
rize us to combine the two in this way, neither do deadlines. After this meeting, there is a scheduling
they prohibit it. A responding attorney is unlikely conference with the judge in which the discovery
to find it strategically advantageous to waste a plan is reduced to an order and signed; see FRCP,
judge’s time arguing that interrogatories and re- Rule 26(f).
quests for admissions should have been in two FRCP, Rule 26(d), provides that neither side
separate documents, and if such a dispute should may engage in discovery at all until they have met
arise, we could always separate them out and re- and conferred as required by Rule 26(f), unless all
submit them if necessary. Therefore, there is usu- parties agree to allow earlier discovery or permis-
ally relatively little risk in combining the two, un- sion is obtained from the judge. (The judge always
less doing so is clearly contrary to preferred has power to alter schedules and deadlines in an
practice in a given court. appropriate situation; for example, to allow the
As we will see, it is often quite useful to send early taking of the deposition of a witness who is
one’s opponent both a request for admission and about to move to another country.)
an interrogatory covering the same topic. For ex- Once discovery has begun, anyone can use any
ample, we might request an admission that docu- discovery procedure at any time unless the sched-
ment X is authentic and bears a genuine signature; uling order says otherwise. FRCP, Rule 26(d), pro-
then add an interrogatory to be answered if the re- vides that “unless the court . . . orders otherwise,
quest is denied, asking for the facts on which the methods of discovery may be used in any se-
denial is based. We can, of course, do this even if quence, and the fact that a party is conducting dis-
the requests for admissions and the interrogato- covery, whether by deposition or otherwise, shall
ries are not in the same physical document, but it not operate to delay any other party’s discovery.” In
is more convenient and logical to group related re- other words, discovery is not like a well-ordered
quests together. tennis match, where each side takes turns hitting
SIDEBAR
Limitations on the Number of Interrogatories
Interrogatories lend themselves very readily to use rible idea, for several reasons. First of all, how much
as an offensive tool. In all but the simplest of cases, is “one” interrogatory? If we ask, “State your
with the help of the block-copy features of modern name,” pretty clearly we could call that one inter-
word processing, a competent paralegal could easily rogatory. But what if we ask “State the names, ad-
generate a set of hundreds or even thousands of inter- dresses, and telephone numbers of each person em-
rogatories in an hour or two. Answering them would ployed by you in the last ten years,” and our
require months of full-time work for an entire team of opponent is General Motors Corporation? Is that
paralegals working for the opposing party—perhaps still “one” interrogatory? Second, is it reasonable to
not entirely a bad thing from the standpoint of para- impose a limit of 25 interrogatories in a simple law-
legal employment, but an expensive burden for the lit- suit to collect a debt and also in a complex antitrust
igant who has to pay for it. case involving hundreds of witnesses and rooms full
By the 1970s, the use of massive sets of inter- of documents?
rogatories as a weapon for running up opponents’ Nevertheless, the idea of limiting the number of
costs was becoming widespread. Sets of interrogato- interrogatories caught on and gained broad accep-
ries several inches thick were becoming common- tance, mainly because no one could think of any
place, to the point where litigators worried that it other way to impose reasonable bounds without
might be considered malpractice not to try to carpet- making judges into full-time discovery referees. FRCP,
bomb one’s opponents into the Stone Age using 10- Rule 33(a), allows interrogatories “not exceeding 25
pound stacks of paper. in number including all discrete subparts.” A number
Various solutions to the problem were proposed. of state courts have adopted similar rules. Your in-
One obvious response was to have judges look over structor will inform you of what, if any, limitations
and approve discovery requests for reasonableness be- there are on the use of interrogatories in the state
fore requiring answers, but, as a practical matter, courts of your locality.
judges have neither the time nor much enthusiasm for Even in jurisdictions in which numerical limits
micromanaging the discovery process in each of the are imposed, the judge retains the power to autho-
several hundred lawsuits that may be pending before rize parties to exceed the limits in appropriate situa-
them at any given time. tions; see FRCP, Rule 33(a). In courts that have
Another proposal was to place a limit—say, adopted mandatory disclosure rules, of course, the
25—on the number of interrogatories that a party need for interrogatories is, at least theoretically,
could submit in one case. This was an inherently ter- reduced.
the ball; rather, it is a free-for-all, with both parties matically as a result of the disclosure rules in a ju-
serving and receiving at the same time. risdiction that has adopted them. Your instructor
Therefore, the sequence and timing of discov- will inform you of the usual practice in the courts
ery becomes largely a matter of strategy, and de- of your locality.
pends considerably on the rules in force in the
court in which the case is being litigated. In a fed- Your Local Notes
eral court that has adopted mandatory disclosure
_________________________________________________
rules, interrogatories are used mainly for pinning
down important factual issues and hardly at all for _________________________________________________
“fishing” for evidence. Both interrogatories and re-
quests for admissions are most likely to be used
late in the discovery process, after the mandatory
disclosures have been made and the factual issues Drafting Interrogatories:
of the case are well defined. In “old-fashioned”
courts, where there is no mandatory disclosure
Step-by-step Instructions
and no limits on written discovery, interrogatories We now review the steps for taking discovery via
may be used much earlier, to try to obtain all of the interrogatories and requests for admissions, in-
background information that would flow in auto- cluding drafting the interrogatories and requests,
serving and filing them, obtaining and analyzing mony at trial. For example, we can find out
responses, and performing needed follow-up. We what other cases they have testified in, what
reiterate that it is not our intent to imply that the publications they have authored, and other
steps that follow embody the only way to conduct similar information that will let us track down
written discovery. Rather, we present one for- any opinions they have expressed in the past.
mula that works and that you can use as a start- Interrogatories are particularly useful here;
ing point. we could get the same information by depos-
ing the expert, but there are compelling rea-
PREPARATORY STEPS sons not to do it that way. When we depose an
opponent’s expert witness, we will be billed
for her time. For medical experts and other
Step 1 Define Your Objectives highly compensated professionals, the ex-
pert’s fee for a few hours of deposition testi-
mony can be thousands of dollars. The court
Keeping in mind the strengths and weaknesses of may not allow us to depose the same expert
written discovery, here is a list of some of the spe- more than once, even if we are willing to pay
cific objectives for which interrogatories and re- again. We want to make every minute of depo-
quests for admissions are well suited. At this sition count, so we need to be as well pre-
point, we merely summarize the objectives; we will pared and as well armed with background in-
translate them into actual interrogatories and re- formation as possible before we confront an
quests for admissions in the Learning By Example expert across the deposition table.
section later.
Getting Background Facts Placing Limits On Our Opponent’s Case

1. Mapping out the totality of the document land- 1. Limiting our opponent’s legal theories. We have
scape. To complete our document discovery seen in previous workshops that the plead-
effectively, we need to have an accurate pic- ings—the complaint and answer—do not nec-
ture of what kinds of documents our opponent essarily dictate what causes of action or de-
has or knows about, how they are organized, in fenses an opposing party can assert.
whose custody they are kept, and what kinds Ideally, all causes of action should be al-
of information they contain. FRCP, Rule leged in the complaint and all defenses should
26(b)(1), allows us to obtain discovery of “the be alleged in the answer, but, especially in fed-
existence, description, nature, custody, condi- eral court where the rules call for “notice
tion, and location of any books, documents, or pleading,” a party is entitled to assert any
other tangible things. . . . ” We can use inter- cause of action or defense that is reasonably
rogatories to begin assembling this back- supported by the facts alleged in the com-
ground information, keeping in mind that the plaint or answer. Moreover, complaints and
answers we get will probably not tell us every- answers can be amended to add new causes of
thing that there is to know. action or defenses. Obviously, we do not want
to be ambushed with surprise legal theories at
2. Identifying potential witnesses. We can use inter- trial, so what can we do?
rogatories to make our opponent tell us the Here, interrogatories provide a solution that
names and addresses of all individuals known we could not achieve in any other way. We
to have information concerning the matters in would not be permitted to ask an opposing
dispute. FRCP, Rule 26(b)(1), allows us to in- party about legal theories in a deposition—
quire about “the identity and location of per- such a question would be objectionable as
sons having knowledge of any discoverable calling for opinion or speculation. FRCP, Rule
matter. . . . ” 33, however, provides that “An interrogatory
3. Obtaining information about expert witnesses otherwise proper is not necessarily objection-
and their opinions. Using interrogatories, we able merely because an answer to the inter-
can find out how our opponent is approaching rogatory involves an opinion or contention
the technical or scientific issues in the case, if that relates to fact or the application of law to
any. We can find out the identities of our op- fact. . . . ” This provision has been interpreted
ponent’s trial experts, and we can get back- by the federal courts as authorizing an inter-
ground information about them that will be rogatory that asks an opposing party to state
useful in planning how to deal with their testi- (for example) all of the legal theories that he
relies on in support of each claim or defense. nesses and documents the other intends to of-
Interrogatories of this kind are very helpful in fer at trial. On the other hand, each party would
avoiding surprises, since the court will be un- prefer to preserve for herself as much flexibility
likely to allow new legal theories that a party as possible, waiting until the last possible mo-
has failed to disclose when asked for them in ment to make final decisions about which wit-
interrogatories. nesses to call and which exhibits to offer.
As a practical matter, developing a witness
2. Limiting the facts that can be used to prove claims
and exhibit list in a case is an evolutionary
and defenses. Complaints and answers are of-
process. We start, early in the case, by gather-
ten not very informative documents, their main
ing all of the names of potential witnesses and
purpose being merely to give notice of the
all of the copies of documents that we can, and
overall claims and defenses. The complaint
we then begin refining the lists and removing
may allege in general terms what defendant did
the unnecessary items. Every witness and
that plaintiff is suing about. But to prepare for
every document that we offer must advance
trial, defendant’s attorney needs to pin down
our cause enough to justify taking up valuable
the details of exactly what plaintiff says hap-
trial time. By the time the trial date arrives, we
pened. Similarly, plaintiff’s attorney needs
should have quite definite ideas about what we
more than just defendant’s denial of plaintiff’s
will present at trial and how.
version of the dispute—plaintiff’s attorney
We can—and should—send out an interroga-
needs to know the specific facts underlying de-
tory that asks what witnesses our opponent
fendant’s story.
may call at trial and what documents he will in-
In jurisdictions that have not adopted manda-
troduce as exhibits. The response will invari-
tory disclosure rules, it is commonplace for de-
ably be that our opponent has not yet decided,
fendant’s attorney to send out a set of inter-
so what does this interrogatory buy us? Quite a
rogatories soon after answering the complaint.
lot, actually: FRCP, Rule 26(e)(2), states that “A
Among other things, this initial set of interroga-
party is under a duty seasonably to amend a
tories will typically go through the complaint, al-
prior response to an interrogatory . . . if the
legation by allegation and ask plaintiff to state
party learns that the response is in some mate-
the facts underlying each one. Plaintiff’s attor-
rial respect incomplete or incorrect. . . .” If the
ney, upon receiving defendant’s answer, will
judge concludes that a party has deliberately
send out a similar set of interrogatories asking
“hidden the ball” by failing to disclose a wit-
for the details supporting each denial or allega-
ness or exhibit, there is a good chance that the
tion in the answer. (In mandatory disclosure ju-
offending party will be prohibited from using
risdictions, the disclosure rules typically re-
that witness or exhibit at trial. Therefore, if it
quire the parties to include this information in
becomes obvious that a particular witness will
their disclosure statements, so interrogatories
be called or that a particular document will be
of this kind may not be necessary.)
used, it is foolhardy not to supplement the
This technique can be used defensively as
prior answers to interrogatories. Again, as is
well. We can, for example, send interrogatories
typical of the discovery process, interrogato-
that ask, item by item, what facts our opponent
ries asking for disclosure of trial witnesses and
has that would tend to disprove each of the ele-
exhibits will not provide us with perfect infor-
ments of our own claims or defenses. This will
mation about our opponent’s case, but they
help us avoid those pesky embarrassing mo-
will help us keep the uncertainties and sur-
ments where an opponent blows a hole in one
prises within manageable bounds.
of the main elements of our case at trial, using
facts that we never thought of looking for. 4. Establishing the computation of damages. The is-
(Again, in mandatory disclosure jurisdictions, sue of damages is present in nearly every law-
nasty surprises of this kind should not happen suit, regardless of what the dispute is about. If
because all evidence will have been disclosed.) plaintiff wins, how much money will be
3. Limiting witnesses and exhibits. The evidence awarded? How will that amount be computed?
each side will offer at trial will consist primarily What losses or expenses will plaintiff be enti-
of testimony by witnesses, and exhibits (mainly tled to include in the total, and what proof is
documents). Here the discovery needs of the there to verify that these are real? If we repre-
opposing parties are in direct conflict. Each sent the defendant, one of our main objectives
party would prefer to make the other specify, as will be to place an upper limit on the amount
far in advance as possible, exactly which wit- that we can lose if the trial goes badly. Our
client will not appreciate it if we go to trial far preferable to authenticate documents in ad-
thinking that the most we can lose is $50,000, vance. Requests for admissions are perfect for
and we get hit with a million dollar verdict. And this task: We simply serve requests asking the
if we represent the plaintiff, we want to know opposing party to admit the genuineness of each
how defendant claims the damages should be document that we intend to use as an exhibit.
calculated, so that we will be ready to counter In doing this we must be careful to create a
defendant’s arguments. clear record showing exactly which documents
Interrogatories are perfectly suited for forc- our requests for admissions are referring to—we
ing an opponent to be candid about the calcu- do not want to leave room for an opponent to
lation of damages. For example, if we represent claim that the exhibit we are trying to introduce
defendant, we will always, in every case, send at trial is not the same one that she admitted was
out an interrogatory requiring plaintiff to state genuine. Often, by the time we get to the stage of
exactly how much money she is asking for and the case where we need to think about authenti-
how the amount is calculated, and to tell us cating trial exhibits, we will already have given
about every bit of supporting documentation our opponent copies of our exhibits in a num-
(receipts, bills, etc.) that plaintiff has. This bered set; then we can simply refer to the ex-
practically forces plaintiff to give us a reason- hibits in our requests for admissions by an ex-
able number. If plaintiff claims an unsupport- hibit number and a short description. If we want
ably high amount, we will simply read plaintiff’s to be even more careful, we can always nail down
answer to this interrogatory to the jurors so what documents we are referring to by attaching
that they can see for themselves how greedy copies of them to the requests for admissions.
plaintiff is. Similarly, if we represent plaintiff, In the vast majority of cases, there will be little
we will ask defendant what he contends is the serious question about the authenticity of the
correct amount of damages in the event that documents involved in the case, and admissions
plaintiff should win; again, if the response is too concerning the genuineness of documents are
stingy, we will use it to paint defendant as a routinely given with little hesitation. Once in a
Scrooge in front of the jury. while, however, a litigant may have a legitimate is-
When representing defendants, interrogato- sue to raise—what then? Obviously, he will deny
ries also offer a useful way of getting the back- the request for admission that the document is
ground information supporting plaintiff’s dam- genuine, but this leaves the requesting party in
age claims. Using interrogatories and FRCP, Rule the dark about what the problem is. The solution
34, requests for production of documents, de- is for the requesting party to serve, with the re-
fendant’s attorney can obtain an itemization of quest for admission, an interrogatory asking for
the expenses and losses that comprise plaintiff’s the reasons behind any denials. For example:
damages, and copies of the receipts, invoices,
and other documents that underlie them. This Request for Admission No. 5
information will allow defendant’s attorney to Admit that the document attached to
verify the items claimed by plaintiff, and may plaintiff’s complaint as Exhibit 1 is a true
provide leads that will help in the search for ev- and correct copy of a contract entered into
idence to disprove plaintiff’s damage claims. between plaintiff and defendant on or
about March 15, 2000, and that said
contract bears the genuine signatures of
Pinning Down Known Facts plaintiff and defendant.
1. Establishing the genuineness of documents. Before Interrogatory No. 5
we are allowed to introduce documents in evi-
dence at trial, we are first required to authenti- In the event that you deny the foregoing
cate them. We must prove that each document is request for admission, state each and every
what we say it is (i.e., not a forgery or an altered fact tending to show that the document
copy) and that any signatures are genuine. Au- attached to plaintiff’s complaint as Exhibit 1
is not a true and correct copy of a contract
thentication is required for every document in-
entered into between plaintiff and defendant
troduced in evidence. In a simple case involving on or about March 15, 2000, or that said
few documents, it may be easiest to authenticate contract does not bear the genuine
them the old-fashioned way, by showing each signatures of plaintiff and defendant.
document to a witness and having the witness
testify that it is genuine. In cases where numer- (If we are in a court that limits the number of in-
ous documents will be introduced, however, it is terrogatories, we will not want to waste an entire
interrogatory on each request for admission, of adapting discovery requests that we or someone
which there may be hundreds if we have many else has already written in some other case, a good
documents to authenticate. In that case, we may deal of our work may be done. In Step 5, we add
use a single interrogatory, for example: “With re- whatever needs to be written from scratch.
spect to each and every request for admission in
this set which you have denied in whole or in
part, state each and every fact supporting such Step 2 Caption and Preamble
denial.” However, by using a blanket question of
this kind, we leave an evasive opponent more As with all court papers, we begin with the caption,
room to give us a smokescreen of extraneous de- date and signature lines, and certificate of mailing
tail that omits the facts that we really wanted.) that we prepared in Workshop 4. Next comes the pre-
2. Establishing facts that are not seriously contested. amble; as usual, we recite who we are, what author-
In most lawsuits, there are some facts that we ity we are acting under, and what the document is all
are required to prove but that no one seriously about. Here is a sample (but, as always, you should
disputes. In our hypo, for example, it is unlikely modify your preamble to conform to local custom):
that either defendant intends to waste energy
Plaintiff Shannon Martin, pursuant to Rules
contesting the fact that Shannon was a paying 33 and 36, Federal Rules of Civil Procedure,
guest in Room 409 on the night in question. We propounds the following interrogatories and
are free to use requests for admissions to estab- requests for admissions to defendant Park
lish facts of this kind, and to use interrogatories Hotels Group to be answered in writing and
to obtain the facts underlying any denials. The under oath within 30 days.
procedure is identical to the one we just re-
viewed for obtaining admissions of the genuine- Your Local Notes
ness of documents.
Do we gain much from such admissions? The _________________________________________________
answer depends on the situation, but usually _________________________________________________
not. In the example just given, we can just as eas-
ily bring out the facts of Shannon’s stay at Ban-
bury Park Hotel as part of the direct testimony
in which she tells her story, so there is little need
to establish such facts in advance. An opposing Step 3 Instructions and Definitions
party is unlikely to admit any facts that she does
not think we can easily prove anyway. As we saw with FRCP, Rule 34, requests for produc-
Not all of these uses for written discovery fit the tion of documents, many litigators like to include an
needs of every lawsuit. We offer them as a kind of Instructions and Definitions section with a set of in-
checklist for you to use in analyzing the particular terrogatories or requests for admission. See Work-
discovery demands of the case before you. When shop 9 for discussion and examples. If your instruc-
you sit down to draft interrogatories and requests tor or your supervising attorney is one of those who
for admissions, we recommend that you begin by favors this practice, he will undoubtedly have a
spending some time carefully mapping out what form set of instructions and definitions that you will
you are trying to accomplish in the case at hand. use, and you will block-copy it into your document
Make a list of topics that you want to cover. Keep immediately after the preamble.
your goals squarely in view as you begin to draft. One caveat: In many of the situations in which
an answer to an interrogatory will be used—argu-
DRAFTING STEPS ing to the judge or jury, for example—having to flip
back through pages of interrogatories to find the
Now we begin the task of putting together the actual right definition in the definition section is a dis-
court paper that we will serve on our opponent. As traction best avoided. It is better to make each in-
usual, much will be boilerplate block-copied from terrogatory self-contained to the extent possible.
discovery requests that we have used in other law- Therefore, we would include in the definition sec-
suits, or from forms. We do not suggest that this is tion only definitions of words that will be used
a purely mechanical process; it takes trained legal over and over, like “document” or “person.” Words
judgment to decide what things to copy, and which that are used only in one or a few interrogatories
bits of boilerplate will advance our discovery goals. should be defined in each interrogatory in which
By the time we have put together what we can by they are used.
Your Local Notes SIDEBAR

_________________________________________________
_________________________________________________
Numbering Interrogatories
It is customary for interrogatories to be num-
bered; this makes it easier to refer to a particular in-
terrogatory in some other court paper. The Federal
Include the Standard
Step 4 Interrogatories
Rules do not specify the details of how interrogatories
are to be numbered. The numbering system shown in
the examples in this Workshop—in which each inter-
No lawsuit is entirely unique, and many vary sur- rogatory has an underlined sidehead in the form “In-
prisingly little from one to the next. Given two law- terrogatory No. X”—is commonplace, but local cus-
suits based on the same cause of action, it is ax- toms vary and should usually be followed.
iomatic that the elements of the claims must be
The numbering sequence is another matter not
the same. For example, physical contact is an ele-
covered by the Federal Rules. We recommend that
ment of every suit for battery. Some elements, like
the numbering sequence begun in the first set of in-
causation and damages, are present in nearly all
terrogatories in the lawsuit be continued through
lawsuits. Other litigators have spent much time
successive sets, so that each interrogatory has a
and talent honing and perfecting discovery re-
unique number. In other words, if plaintiff’s first set
quests in all kinds of cases, and it would be sense-
of interrogatories to defendant has 15 interrogato-
less not to take advantage of what has already
ries numbered 1 through 15, the second set would
been done. Not only senseless, but perhaps an in-
start at number 16. This practice will avoid a great
vitation to malpractice—if we try to reinvent
deal of confusion and ambiguity when referring to
everything from scratch, we may well leave out
specific interrogatories in motions or in argument
something important that we would never have
before the judge or jury.
missed had we used the discovery requests from
some similar case as a guide.
When you are assigned to write interrogatories
Write the Individualized
or requests for admissions in a case, your first step Step 5 Interrogatories
should be to try to find a case involving similar
claims and defenses, and to obtain copies of the dis-
covery requests used in that case. In a litigation of- Writing interrogatories involves two main skills:
fice, your supervising attorney will certainly be able (1) figuring out what questions to ask and (2) figur-
to suggest other files in the office for you to exam- ing out how to word the individual questions in as
ine; failing that, try your local law library, where you “watertight” a manner as possible. Both are impor-
can often find sample discovery requests in prac- tant—obviously, if we fail to ask the right questions,
tice manuals or in books about the various litigation we will not get the information that we want, but we
specialties. can also miss important facts by asking questions
If you are working in a jurisdiction that does in such a sloppy and imprecise way that our oppo-
not have mandatory disclosure, do not overlook nent is able to evade them.
the mandatory disclosure rules of other courts as Knowing What Questions to Ask—After we have
a source for ideas. These rules have been drafted pieced together and organized all of the questions
by highly experienced litigators and judges with that we have been able to borrow from forms, dis-
the intention of requiring disclosure of everything covery requests in other cases, textbooks, practice
that ought to be important in any lawsuit. At a min- manuals, and other similar sources, we should have
imum, your interrogatories need to cover all of the covered most of the routine issues that we need to
factual territory that typical mandatory disclosure cover. Now we need to write the customized inter-
rules cover. rogatories and requests for admissions necessary to
fill in any gaps and to deal with any unusual or unique
aspects of our case.1 Is there some systematic way in
Your Local Notes
1
_________________________________________________ In a jurisdiction with mandatory disclosure rules,
the routine issues should be covered by the dis-
_________________________________________________
closure statement, so the customized interrogato-
ries may be the only ones that we will need.
which we can do this, so as to ensure ourselves that It is up to us to word our questions in such a
nothing important will be overlooked? way that they leave no room for evasion. A question
Yes and no. There is no “formula” approach that can provide an excuse for the responding party to
will guarantee that we have not missed anything, withhold facts in two main ways:
but certainly there are things that we can do that
1. By using vague or ambiguous language, a ques-
will make our task easier and less error prone. It will
tion may fail to describe the desired informa-
help if we make a checklist of the topics that we
tion precisely enough. Example: “State the
want to be sure to cover. A good place to begin in
names and addresses of all persons who wit-
making such a checklist is with the issues outline;
nessed the industrial accident described in
we can go through the outline issue by issue and
plaintiff’s complaint.” What does “witnessed”
fact by fact, noting the ideas that occur to us with
mean? Would it include someone who, for ex-
respect to each one. This does not mean that we
ample, heard a loud noise and came running
will draft an interrogatory addressing every issue
over just after the accident occurred? If there
and every fact; as we have seen, interrogatories are
were such persons, and the responding party
not the discovery weapon of choice in many situa-
did not want their identities known, this inter-
tions. But by reviewing the issues systematically,
rogatory would not obtain their names. Better:
one at a time, we can make an intelligent judgment
“State the names and addresses of each and
about each one in turn, think about how best to ob-
every person who was present in the building
tain the needed proof, and be reasonably confident
in which the industrial accident described in
that we have not overlooked any important issues.
plaintiff’s complaint occurred, at any time
Ideally, this review of the issues should be done
within one hour before or after said accident
before we begin drafting. As we draft our interroga-
occurred.” The moral: Use words about whose
tories and requests for admissions, if we have pre-
meanings there can be no reasonable differ-
pared our minds by going through the issues outline
ence of opinion. Whether or not people are
and thinking about the case, additional ideas will oc-
“present” at a particular place and time is not
cur to us, and we can add them to our list of topics.
debatable; whether or not they “witnessed” an
(A good habit to cultivate is to make our list of top-
event can be a matter of opinion.
ics on a separate legal pad that we keep continually
at hand as we are drafting, so that whenever an idea 2. By using wording that is overly specific, we
strikes, we can write it down immediately.) could inadvertently exclude possible variations
of the expected facts. Example: “State the names
Writing the Questions—When we write discov- and addresses of all employees of defendant
ery requests, our goal is not so much to write con- City Hospital who were present in the operating
vincingly or elegantly as it is to write precisely. As we room at the time of the operation described in
will see in Workshop 11 on responding to discovery, plaintiff’s complaint.” The word “employees”
the responding party will be analyzing each inter- here is too specific. There could easily have
rogatory or request for admissions word by word, been doctors, nurses, anesthetists, even med-
with the goal of answering the question in whatever ical students present, none of whom were “em-
way provides the smallest quantity of useful informa- ployees” of the defendant hospital. Better:
tion. If it is possible to interpret a question in such a “State the names and addresses of all persons
way as to avoid revealing damaging facts, that is how who were present in the operating room at the
the responding party will interpret it. time of the operation described in plaintiff’s
The responding party’s only obligation is to an- complaint.” The moral: Avoid using words that
swer the questions that we have asked. Volunteering unnecessarily restrict the scope of the question.
information that we have not clearly asked for is
something that our opponent is neither required to do To see what happens when we are not careful
nor likely to do. Suppose our opponent withholds in- enough in our drafting, see the sidebar on “leaky”
formation that we feel we have asked for—what hap- interrogatories.
pens then? There is, of course, a good possibility that
we will never find out that the information exists, in Write the Requests for
which case our opponent will gain an advantage and Step 6 Admissions, If Any
escape with impunity. If we are lucky enough to get the
information from another source, FRCP, Rule 37, al- We have said that we would follow the practice of
lows us to ask the judge to punish the party who with- combining interrogatories and requests for admis-
held the information. To succeed in this, however, we sions in the same physical document, unless local
must be able to convince the judge that our inter- rules require us to do otherwise. This does not nec-
rogatory fairly covered the information withheld. essarily mean that every set must have both; the ac-
SIDEBAR
“Leaky” Interrogatories: An Example
Here is an example that illustrates how poor Not likely—remember, the responding party is not ob-
wording can result in an interrogatory that fails to obligated to volunteer information beyond what is clearly
tain the desired information. asked for, and there are several good arguments to be
Assume the following facts: Two years prior to the made that Smith’s memo is not within the scope of
incident in which Shannon was injured, John Smith, what the interrogatory asked for. (Before you read on,
the assistant maintenance supervisor at Banbury Park see if you can think of at least three arguments that
Hotel, wrote a memo to Ron Jones, a company vice- Park Hotels Group’s attorney could make.)
president at Park Hotels Group corporate headquar- Here are a few possibilities: (1) The interrogatory
ters. In the memo, Smith informed Jones that the door refers to “letters”—a memo is not a letter. (2) The inter-
closers on the entrance doors of many of the rooms on rogatory refers to letters written by any “management-
the fourth floor were badly worn and preventing the level employee.” Smith, as an assistant maintenance su-
doors from closing properly, and recommended re- pervisor, is arguably not one. (3) The interrogatory
placing all the door closers on the fourth floor. (The refers to letters “pertaining to the maintenance of the
door closer is the arm at the top of the door that room door locks.” A door closer is not a door lock.
pushes the door closed.) How could we fix the leaks in this interrogatory?
Suppose Shannon’s attorney serves the following Use words that are broader in scope and delete un-
interrogatory on defendant Park Hotels Group: “Iden- necessary restrictive adjectives like “management-
tify and describe the contents of all letters written by level.” For example: “Identify and describe the con-
any management-level employee of defendant per- tents of each and every communication by any
taining to the maintenance of the guest room door employee of defendant pertaining to the mainte-
locks at Banbury Park Hotel.” nance of the guest room doors, door locks, and/or
Is this interrogatory as watertight as it can be? Will other hardware associated with guest room doors at
it force Park Hotels Group to cough up Smith’s memo? Banbury Park Hotel.”
tual contents of each submission will be dictated by It is true that the defendant has an opportunity
the discovery needs of the case. In the early stages to admit undisputed facts in the answer. As a practi-
of discovery, the emphasis is likely to be on inter- cal matter, however, the pleading process is inade-
rogatories, since we will be concerned more with quate as a way of zeroing in on the factual issues that
finding out what the facts are than with proving are seriously contested, for a number of reasons:
them. As the trial date nears, requests for admis- ■ The answer is filed at a time when defen-
sions take on greater importance for tasks such as dant’s attorney has probably not yet had
authenticating documents. We had better not need much chance to investigate the facts.
to submit general, fact-gathering interrogatories at
this stage, because the trial will be upon us before ■ If there is any doubt about whether the answer
we can get the answers and put them to use. The should admit or deny an allegation, it will be
only interrogatories we are likely to include in these denied. In fact, FRCP, Rule 8(b), expressly al-
late-stage discovery requests are those designed to lows a defendant to deny allegations of the
follow up on any of our requests for admissions that complaint if she is without sufficient informa-
the responding party denies. tion to decide whether they are true.
The suggestions that we have made regarding ■ There is no incentive for a defendant to make
the drafting of interrogatories apply equally here. admissions in the answer. FRCP, Rule 37(c)(2),
imposes penalties on parties who deny re-
Early-Stage Requests for Admissions—The quests for admissions without having reason-
main use of requests for admissions in the early able grounds for doing so, but there is no sim-
stages of a lawsuit is to help separate the factual is- ilar penalty for making “unreasonable” denials
sues that are genuinely in dispute from those that in an answer.
are not. You may be wondering why we would need ■ There is usually no opportunity for defendant
to do this; surely, the complaint and answer are sup- to obtain admissions from plaintiff during the
posed to define the issues? pleading process, since there are no pleadings
SIDEBAR
The Top Ten List for Learning to Draft Interrogatories
Avoiding the problems of vagueness, ambiguity, When you are arguing about an interrogatory be-
and overspecificity requires us to write interrogatories fore the judge, or reading an interrogatory to the
and requests for admissions in a style that, in any jury, you do not need the distraction of having to flip
other kind of writing, would be considered ugly and through a stack of papers looking for some external
redundant. This kind of writing does not come natu- reference. Although it is permissible to refer specifi-
rally to most people—it is a learned skill that comes cally to other interrogatories in the same set (i.e.,
with practice. Nevertheless, a few pointers can be “State the address of each person identified in your
given. Here is our Top 10 list: response to Interrogatory No. 5”), this should be
avoided where possible. Similarly, it is preferable to
1. Wherever possible, describe the informa-
include any important definitions in each interroga-
tion you want with the most general
tory rather than in a separate Definitions section.
words possible. Here are a few examples of
this technique: 5. Specify a date range where necessary to avoid ambi-
guity. For example, write “Describe each and every
Too specific: Better:
communication between defendant Brown and de-
“all memos” “each and every fendant Green from January 1, 1998, to the present.”
communication” If you do not specify the date range, the responding
“every employee” “every person” party will take the opportunity to decide how far
“all receipts” “each and every back in time the response will cover. Where possible,
document evidencing use a specific date—i.e., “January 1, 1998, to the
or reflecting any present”—in preference to an event that requires the
expenditure” reader to look up a date, i.e., “during the five years
preceding the filing of plaintiff’s complaint.”
“all sales” “each and every
transaction” 6. Keep interrogatories short where possible. Long,
run-on sentences make it too easy for the respond-
2. Scrutinize the adjectives in a question care- ing party to claim that he or she did not understand
fully. Eliminate unnecessary limiting words. what was being asked. If necessary, break the inter-
Avoid using adjectives whose meaning is rogatory up into two or more sentences (see the ex-
debatable. ample in item 3 above).
3. Consider defining words whose meaning is 7. In jurisdictions that do not impose limits on the
uncertain, either in a separate Definitions number of interrogatories, clarity can often be im-
section or (we would prefer) in the interroga- proved by breaking one interrogatory into two or
tory itself. There is no rule that requires an in- more separate ones.
terrogatory to be a single sentence. For ex-
ample, we could write: “State the name and 8. Approach the process of writing interrogatories as
address of each and every person who has one of making successive improvements to a first
performed maintenance or other services draft. Write a first draft of the question; then try to
with respect to guest room door locks or door think of all the ways in which the information you
hardware at Banbury Park Hotel at any time want could exist that would not be covered by the
since January 1, 1996. For purposes of this interrogatory as you wrote it. Then rewrite the
interrogatory, “maintenance or other ser- question and repeat the analysis, as many times as
vices” shall mean any services of whatsoever it takes, until you are sure that you have closed off
nature involving repair, adjustment, rekey- every loophole in your wording that an opponent
ing, removal, replacement, alteration, in- could use as an excuse not to give you the infor-
spection, or other activities involving any mation that you want. As with most kinds of writ-
door lock, door closer, strike plate, safety ing, there is no such thing as good writing of inter-
latch or chain, or other door hardware in- rogatories—there is only good rewriting.
stalled or to be installed on any guest room 9. Study interrogatories written by skilled litigators
door at Banbury Park Hotel.” and copy shamelessly. Try to match your writing
4. Each interrogatory should, as far as possible, style, choice of words, and format to theirs.
be self-contained and stand on its own. 10. Practice, practice, practice.
after defendant’s answer unless defendant as- disputed facts—disputed facts in a lawsuit are es-
serts counterclaims. tablished (usually) by evidence that we already
■ Because allegations in pleadings are usually have, or obtain from friendly or neutral sources. And
quite general, it is difficult for a responsive if we are going to seek evidence about disputed facts
pleading to admit narrow undisputed facts from an opponent, written discovery is a poor way
without also potentially giving away issues to do it because the responding party has too much
that are genuinely disputed. opportunity to think about and edit the response.
Depositions are preferable for such tasks.
Requests for admissions, however, are well suited
for the purpose of making an opposing party fish or
cut bait on peripheral issues. It is often useful in the Your Local Notes
early stages of a lawsuit to go through the complaint _________________________________________________
and answer carefully, analyze them issue by issue
against your issues outline, and make a list of the facts _________________________________________________
and issues that seem unlikely to be in genuine dis-
pute. From this list, you can then prepare requests for
admissions, backed up by interrogatories to be an-
swered whenever a request for admission is denied. Late-Stage Requests for Admissions—When
Here is an example: In our hypo, Shannon’s at- discovery has progressed to the point where we
torney alleged in paragraph 4 of plaintiff’s complaint have a reasonably clear idea of what documents
that the “Court has jurisdiction of this matter under will be used as exhibits at trial, it is time to review
the provisions of 28 U.S.C. §1332.” (28 U.S.C. §1332 our exhibit list carefully and make sure that we have
gives federal courts subject matter jurisdiction over the evidence we need to establish the admissibility
cases in which the plaintiffs and defendants are from of each exhibit. Requests for admissions are a use-
different states. See Workshop 2.) In its answer, de- ful tool for this purpose. Precisely what needs to be
fendant Park Hotels Group responded that it was established depends on the document and the cir-
“without knowledge or information sufficient to cumstances. We will need to analyze the evidence
form a belief as to the truth of the allegations of said rules as they apply to each document in order to de-
paragraphs, and therefore denies them.” termine exactly what must be proved to make each
If we are representing Shannon, we do not want to one admissible. There are, however, two situations
leave the issue of subject matter jurisdiction in a state that occur often and are worth a closer look:
of uncertainty. If a defect of subject matter jurisdic- 1. Establishing genuineness. Some documents in a
tion arises, even at the late stages of the lawsuit, the lawsuit are themselves evidence of some event
court will have no choice but to dismiss, so if there is that needs to be proved. In our hypo, for exam-
any problem, we want to know about it immediately. ple, Shannon’s attorney will no doubt offer copies
A request for admission, backed up by a follow-up in- of Shannon’s medical bills and the checks written
terrogatory, is a good tool to use for this purpose: to pay them as proof of the amount of Shannon’s
medical expenses. Here, it is merely necessary to
Request for Admission No. 1
prove that the receipts and checks are authen-
Admit that this court has valid subject tic—that is, that the document really is what it ap-
matter jurisdiction of this matter under the pears to be, and is not a forgery or altered copy:
provisions of 28 U.S.C. §1332.
Interrogatory No. 1
Admit that the documents attached
In the event that you deny the foregoing hereto as Exhibits 14 through 33 are true and
Request for Admission No. 1, state each and correct copies of receipts for amounts
every fact upon which such denial is based, and actually expended by plaintiff in payment of
state each and every respect in which you medical expenses incurred as a result of the
contend that the jurisdictional requirements of injuries described in plaintiff’s complaint.
28 U.S.C. §1332 are not met in this action.
Interrogatory No. 39
Why stop at issues that seem unlikely to be dis-
In the event that you deny the Request for
puted? Could we not use the same technique to flush
Admission No. 10 in whole or in part, state
out the facts of issues that are in dispute? We could, which of Exhibits 14 through 33 you contend
but, as we have seen in the introduction to this work- are not true and correct copies of receipts for
shop, written discovery is not very well suited for es- amounts actually expended by plaintiff in
tablishing disputed facts. In the first place, opposing payment of medical expenses incurred as a
parties are usually not a good source of evidence on result of the injuries described in plaintiff’s
complaint, and, for each such Exhibit, state M.D., and that said document is entitled to
each and every fact upon which your denial is be admitted in evidence herein pursuant to
based. Rule 803(6), Federal Rules of Evidence.
2. Establishing admissibility of regularly kept records. Interrogatory No. 19
Another very common use of documents as ex-
In the event that you deny Request for
hibits in a lawsuit is to establish facts that are
Admission No. 7 in whole or in part, state
recorded in the documents. In our hypo, for ex- each and every fact upon which such
ample, Shannon might want to introduce some of denial is based, and state each and every
the notes kept by her doctor, to help show the ex- respect in which you contend that such
tent and severity of her injuries. document does not meet the requirements
It is still necessary to prove that a record of this of Rule 803(6) for admissibility.
kind is genuine, but there is a further problem:
the physician’s records are hearsay. The written Of course, many other legal issues can arise
record is really nothing but a factual statement that affect the admissibility of documents, most of
by the physician—at a time when he was not un- which are best left for a course on evidence law.
der oath and could not be cross-examined. In (You can get an idea of the rules that apply to many
principle, letting the report “testify” about what of the common document types by perusing the
the doctor concluded is no different from letting rest of Rule 803 of the Federal Rules of Evidence.)
some third person do so. Our purpose here is merely to indicate how to use
Records of this kind that are kept in accor- requests for admissions as a procedural tool for es-
dance with some regular procedure are, how- tablishing admissibility of a document.
ever, inherently more reliable than, say, the testi-
Your Local Notes
mony of, say, a nurse who happened to overhear
the doctor talking about the case. Recognizing _________________________________________________
this, the rules of evidence make an exception to
_________________________________________________
the hearsay rule for “regularly kept records”;
Rule 803(6), Federal Rules of Evidence, tells us
exactly what we must show to make a record
admissible:
CONCLUDING STEPS
A memorandum, report, record, or data When we have completed our drafting, proofread
compilation, in any form, of acts, events, our work, and produced the document in final form,
conditions, opinions, or diagnoses, made at it must be reviewed and signed by an attorney. Then
or near the time by, or from information it is ready to be served on the responding party.
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted Serve and Comply with Filing
business activity, and if it was the regular Step 7 Requirements
practice of that business activity to make
the memorandum, report, record, or data Interrogatories and requests for admissions are
compilation, all as shown by the testimony
served informally, by mail or hand delivery in com-
of the custodian or other qualified witness,
unless the source of information or the pliance with FRCP, Rule 5, on the attorney for the
method or circumstances of preparation party to whom they are directed. Naturally, we keep
indicate lack of trustworthiness. The term a copy for our own file.
“business” as used in this paragraph As discussed in detail in Workshop 7, some
includes business, institution, association, courts still require us to file discovery papers with
profession, occupation, and calling of every the clerk of the court, while others prohibit us from
kind, whether or not conducted for profit. doing so. In courts that no longer allow filing of in-
terrogatories, we prepare a notice reciting that we
To establish the admissibility of Shannon’s med-
have served them, and we file the notice and mail or
ical record, Shannon’s attorney might use the fol-
deliver the notice to the attorneys for all parties.
lowing request for admission and interrogatory:
Request for Admission No. 7 Your Local Notes
Admit that the document attached _________________________________________________

hereto as Exhibit 4 is a true and correct _________________________________________________
copy of the medical record pertaining to the
treatment of plaintiff by Dr. Ronald M. Green,
Docket Response Due Date forcement, we will examine in detail the procedures
Step 8 and Follow-Up for forcing an opposing party to provide the infor-
mation we have requested. To make our follow-up
Answers to interrogatories and responses to re- task easier, we will keep a list as we analyze our op-
quests for admissions are nominally due 30 days af- ponent’s answers, and note any matters that re-
ter service. FRCP, Rule 33(b)(3), provides: quire further attention.
The party upon whom the interrogatories We have several purposes in mind as we review
have been served shall serve a copy of the the answers:
answers, and objections if any, within 30 days 1. We want to verify that each interrogatory has
after the service of the interrogatories. A been answered. Although it may seem surpris-
shorter or longer time may be directed by the
ing, it is not at all unusual to receive a set of an-
court or, in the absence of such an order, agreed
to in writing by the parties. . . . swers to interrogatories in which some of the
questions are not answered at all, or are an-
If we have served the responding party by mail, swered with a vague promise to answer them
FRCP, Rule 6(e), adds three extra days to the re- some time in the future. We note any such “non-
sponse time. (See Workshop 7 for details on com- answers” on our follow-up list.
puting deadlines.)
2. We want to verify that each answer is reason-
We enter the response due date in the office
ably complete. A common tactic used by a
docketing system and also in our personal calendar.
party who is reluctant to divulge some damag-
If the response does not arrive within a reasonable
ing fact is to write an answer that seems to be
time after the due date, we follow up with a re-
responsive but, on closer scrutiny, is not. For a
minder letter or two, and then a motion to compel,
simplistic example, if the question is “Did you
if necessary. (Remember, though, that the response
beat up your wife?”, the answer “I love my wife
is deemed served when the opposing attorney
very much” is not responsive—it does not ac-
mails it, so we have to allow time for it to arrive in
tually answer the question. It often takes a de-
the mail before we can conclude that it is late.)
gree of legal judgment, as well as a meticulous
reading of the response, to detect such eva-
Your Local Notes sions. When detected, they must be followed
_________________________________________________ up with a demand for a responsive answer.
_________________________________________________ 3. We want to note any objections that the re-
sponding party has made. As we will see in de-
tail in Workshop 11 on responding to discovery
requests, the responding party is entitled to ob-
Analyze Response and Take Any
Step 9 Needed Further Action
ject to questions that are improper. If any of our
questions have been objected to, we will need
to analyze the legal basis given for each objec-
When the response arrives, we first check to see that
tion and decide whether valid grounds exist. If
it is signed by the party to whom it is directed. FRCP,
not, we will briefly set out in our demand letter
Rule 33(b)(2), states “The answers are to be signed
the reasons why the objection is invalid.
by the person making them, and the objections
signed by the attorney making them.” If we need to 4. We want to organize and catalog whatever new
use any of the answers when cross-examining the re- information the answers provided, and plan any
sponding party, we do not want to leave any room for additional discovery needed to fill in any gaps.
her to squirm out of them by claiming that it was the
attorney who prepared and signed them. We have
the right to insist that answers to interrogatories be Request Supplementation
signed by the party—not just the attorney—and we
Step 10 as Appropriate
should always do so.
We next go through the response carefully, Some kinds of interrogatories elicit answers that are
question by question, and analyze the answers inherently unlikely to be complete and final. For ex-
given. It is rare for a set of answers to interrogato- ample, we will nearly always send an interrogatory
ries to be complete when we receive it—nearly al- asking for the identities of any witnesses. The prob-
ways, the answers will fall short of what we are en- lem is that, even if the answer is complete when
titled to, and we will have to follow up with a given, our opponent will probably become aware of
demand letter. In Workshop 15 on discovery en- additional witnesses as the case progresses.
In theory, our opponent should make a supple- cal of the kind that plaintiff might serve on defen-
mental response disclosing new information as it is dant shortly after the defendant’s answer is filed.
obtained. FRCP, Rule 26(e)(2), provides: “ A party is We will assume that we are in a jurisdiction that
under a duty reasonably to amend a prior response does not have mandatory disclosure rules, and that
to an interrogatory, request for production, or re- there is no numerical limit on the number of inter-
quest for admission if the party learns that the re- rogatories we are allowed to submit.
sponse is in some material respect incomplete or in- Obviously, space limitations do not permit us to
correct and if the additional or corrective reproduce a complete set of interrogatories here.
information has not otherwise been made known to Moreover, as we have seen, the content of a set of
the other parties during the discovery process or in interrogatories varies considerably depending on
writing.” how close the case is to trial, whether it is the plain-
As a practical matter, however, we cannot de- tiff or defendant who is submitting them, and other
pend on opposing parties to supplement answers factors. Therefore, the set of interrogatories and re-
voluntarily. If an opposing party fails to supple- quests for admissions that we present here should
ment, we will have already missed out on the infor- be taken as an illustration of what written discovery
mation we need, and will be left arguing about papers look like, not as a definitive model for all
whether the unsupplemented facts were material. cases and all situations.
Far better, therefore, to make a formal request
for supplementation. This can be a simple, one- PREPARATORY STEPS
page court paper entitled “Request for Supplemen-
tation” and reciting a request that the responding
party supplement his answers to particular num- Step 1 Define Your Objectives
bered interrogatories. For example:
Plaintiff requests pursuant to the provisions Since this is an early-stage discovery request made
of FRCP, Rule 26, that defendant supplement its by a plaintiff, we choose the following objectives:
answers to plaintiffs interrogatories numbered
5, 6, 9, and 24 dated June 1, 2000. 1. To obtain more information about what kinds of
maintenance records Banbury Park Hotel main-
We can make such requests as often as reasonably tains concerning the guest room doors and door
needed. By making it impossible for the respond- locks. We want to explore any such records to
ing party to claim that the need to supplement was see whether we might discover evidence of
somehow forgotten or overlooked, appropriate some defect that could have made the lock in-
use of requests for supplementation will make it effective. We have, of course, also asked for
much more likely that we will actually get updated such records in our Rule 34 request for pro-
information. duction, but that, by itself, is not enough—we
We will note on our list any interrogatories also want to find out enough detail about what
whose answers may change as the case develops, records are kept and what information they
and make an entry on our personal calendar to re- contain to be able to judge whether the docu-
mind us to prepare requests for supplementation at ments we get in response to the request for
the appropriate time. production are complete. This is typical of dis-
covery; we use the various discovery tools in
combination to ensure that we obtain a com-
Your Local Notes
plete picture of the facts.
_________________________________________________
2. To obtain the identities of any witnesses that Park
_________________________________________________ Hotels Group knows about and that we do not
know about. Under the facts of our hypo, the
hotel defendant is in a far better position than
is plaintiff to investigate the events leading to
Drafting Interrogatories: Shannon’s injury. It is entirely possible that
other hotel guests or employees were in a po-
Learning by Example sition to observe all or part of what happened.
We will now put the interrogatory drafting princi- 3. To place some limits on the affirmative defenses
ples that we have learned into practice by drafting a raised in Park Hotels Group’s answer. Paragraph
set of interrogatories and requests for admissions 12 of Park Hotels Group’s answer is a boiler-
for use in our hypothetical lawsuit, Martin v. Collins. plate paragraph alleging a number of affirma-
We will prepare a partial set of interrogatories typi- tive defenses:
12. At this early stage of the case, ning to use at trial. (This will usually be a boil-
defendant Park Hotels Group, Inc., is unable to erplate interrogatory that we copy from our
determine the applicability of the defenses standard set to be used in all cases.) Because
enumerated in FRCP, Rule 8(c), but intends to we are submitting this interrogatory early in
preserve those defenses to the extent they the lawsuit, the answer we get will undoubtedly
should be deemed pertinent, and therefore be incomplete. That does not matter—we will
affirmatively alleges the defenses of accord
ask for the answer to be supplemented later.
and satisfaction, arbitration and award,
assumption of risk, contributory negligence, The earlier and more often we ask for this in-
discharge in bankruptcy, duress, estoppel, formation, the harder it will be for defendant to
failure of consideration, fraud, illegality, injury get away with incomplete disclosure later on.
by fellow servant, laches, license, payment, We will draft one interrogatory for each of these ob-
release, res judicata, statute jectives. Obviously, in a real lawsuit, this set of in-
of frauds, statute of limitations, and waiver.
terrogatories would be much larger. We reiterate
We might assume that Park Hotels has no real that our choice of objectives and example inter-
evidence to back up any of these affirmative de- rogatories is arbitrary, and dictated by space limi-
fenses and is merely trying to preserve them in tations rather than by good litigation strategy.
case some evidence turns up later. We cannot We will also include the request for admission
be sure, however, so we will draft an interroga- that we discussed earlier in Step 6, which is in-
tory asking defendant to tell us what evidence tended to help lay the subject matter jurisdiction is-
it has on any of these issues, and thereby pre- sue to rest.
vent any nasty surprises.
4. To get defendant’s version of what happened. De- DRAFTING STEPS
fendant’s answer, as is typical, denies plaintiff’s
Figure W10–1 shows the finished set of interroga-
version of what happened, but does not tell us
tories and requests for admissions, which is put
what defendant says happened. An interroga-
together using Steps 2 through 6 as a guide. The
tory will not get us a deep and probing factual
instructions/definitions section is from Appendix
account of the kind that we could elicit in a de-
A of the local rules of the United States District
position, but at least it will force defendant to
Court for the District of Arizona. They are de-
go on the record with some version of the facts
signed for an automobile accident case. A more
as defendant contends they occurred.
detailed (and perhaps objectionable) set of in-
5. To force defendant to keep us informed about structions and definitions that could be used is
what witnesses and exhibits defendant is plan- shown in Figure W10–2.
Figure W10–1 Sample Set of Interrogatories and Requests

DISTRICT OF ARIZONA

) NO. CV 98 -01456 PHX JL
Plaintiff, )
) PLAINTIFF’S FIRST SET OF
v. ) INTERROGATORIES AND
) REQUESTS FOR ADMISSIONS
) TO DEFENDANT PARK HOTELS
) GROUP, INC.
corporation; )
)
Defendants. )
_______________________________________________ )
continued
Figure W10–1 Sample Set of Interrogatories and Requests, continued
Plaintiff hereby submits interrogatories and requests for admission to defendant Park Hotels Group,
pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to be answered in
writing and under oath within 30 days from the date of service hereof.
A. All information is to be divulged which is in the possession of the individual or corporate party, his
attorney, investigators, agents, employees, or other representatives of the named party and his
attorney.
B. A “medical practitioner” as used in these interrogatories is meant to include any medical doctor,
osteopathic physician, podiatrist, doctor of chiropractic, naturopathic physician, or other person who
performs any form of healing art.
C. Where an individual interrogatory calls for an answer which involves more than one part, each part
of the answer should be clearly set out so that it is understandable.
D. Where the terms “you,” “plaintiff,” or “defendant” are used, they are meant to include every
individual part and separate answers should be given for each person named as a party, if requested.
E. Where the terms “accident” or “the accident” are used, they are meant to mean the incident
which is the basis of the lawsuit, unless otherwise specified.
F. A space has been provided on the Form of Interrogatories for your answer. ______ [four (4)] copies
are served herewith. Complete all copies and serve a copy upon each separate counsel representation,
retaining a copy in your file. Attach a verification and certificate of mailing.
Interrogatory No. 1
Identify and describe all documents recording or memorializing any repairs, maintenance, or
installation or replacement of parts or components, relating to the entrance door of any guest room at
Banbury Park Hotel or to any lock, strike, hinge, door closer, or other hardware attached to or
associated with any such door, at any time after January 1, 1995.
Interrogatory No. 2
With respect to each and every person who witnessed or was present in the vicinity of the events
described in plaintiff’s complaint occurring at Banbury Park Hotel on the night of ______, state the
name, address, and telephone number of each such person, state the substance of what such person
observed, and identify each and every written or recorded statement given by such person.
Interrogatory No. 3
Separately with respect to each affirmative defense enumerated in paragraph 12 of defendant Park
Hotels Group’s answer herein, state the basis of each such defense and state each and every fact upon
which each such defense is based.
Interrogatory No. 4
Describe in detail what you contend were the true facts surrounding the events of the night of
____________________ at Banbury Park Hotel leading up to plaintiff’s injury.
Interrogatory No. 5
With respect to each witness, including expert witnesses, that you will or may call to testify at the
trial of this matter, state the name, address, and telephone number of each such witness, and,
separately for each such witness, state the substance of what you anticipate the testimony of each such
witness to be.
Admit that this court has valid subject matter jurisdiction of this matter under the provisions of 28
U.S.C. §1332.
continued
Figure W10–1 Sample Set of Interrogatories and Requests, continued
Interrogatory No. 6
In the event that you deny the foregoing Request for Admission No. 1, state each and every fact upon
which such denial is based, and state each and every respect in which you contend that the
jurisdictional requirements of 28 U.S.C. §1332 are not met in this action.
DATED this _____ day of ___________________, 20___.
SIMON & PORTER
Allen Porter
Attorney for plaintiff
Figure W10–2 More Detailed Instruction/Definition Set
DEFINITIONS
Unless otherwise indicated, the following definitions are applicable to all Interrogatories contained
herein.
1. Any pronoun shall be deemed to designate the masculine, feminine, or neuter gender, and
singular or plural, as in each case may be appropriate.
2. “Any,” “each,” and “all” shall be read to be all-inclusive, and to require the enumeration of
each and every item of information or document responsive to the Interrogatory in which such term
appears.
3. “And” and “or” and any other conjunctions or disjunctions used herein, shall be read both
conjunctively and disjunctively so as to require the enumeration of all information responsive to all or
any part of each Interrogatory in which any conjunction or disjunction appears.
4. The word “person” means an individual, firm, corporation, association, organization,
partnership, joint venture, trust, estate, public agency, department, bureau, board, or other entity.
5. “You” or “your” means each defendant, and all persons acting or purporting to act on your
behalf, including your attorney and his associates and partners and, if applicable, your former attorneys
and their associates and partners.
6. “Document” means any physical thing containing information, including (without limiting
the generality of the foregoing) any book, paper, warrant, affidavit, appraisal, evaluation, bulletin, card,
ticket, log, pamphlet, memorandum, invoice, instrument, agreement, correspondence (sent or
received), telegram (sent or received), minutes, prospectus, note, receipt, voucher, book of account,
ledger sheet, inventory list, canceled check, check stub, photograph, map, blueprint, drawing,
computer input or output material, computer storage device, writing, graph, chart, scroll, notebook,
register, appointment calendar, diploma, recording of any kind (whether or not transcribed), working
paper, audit paper, report, study, statement, application, diary, any notes or summarization of any
conversation, telephone call, meeting or other communication or other data compilation from which
information can be obtained or translated through detection devices into reasonably usable form when
translation is practicably necessary and includes all copies (with or without notes or changes thereon)
and drafts of any of the foregoing.
continued
Figure W10–2 More Detailed Instruction/Definition Set, continued
7. “Identify” as used herein with respect to a document shall be read to require a statement of
all of the following information relative to such document: (1) title; (2) nature and subject matter;
(3) date; and (4) author.
8. “Identify” as used herein with respect to any individual shall be read to require a statement of
all of the following information pertaining to such individuals: (1) present or last-known home address;
(2) present home telephone number; (3) employer; (4) present or last-known business address; and
(5) business telephone number.
9. “Identify” as used herein with respect to any conversation (including any telephone
communication) or meeting shall be read to require a statement of all the following information
relating to such conversation or meeting: (1) the date on which it occurred; (2) the identity of each
and every person who was present or who participated; (3) the place at which it occurred or, in the
case of a telephone communication, the location of each party; and (4) a detailed statement of the
substance of what was discussed or what actions were taken.
10. “This litigation” means Cause No. CV _____ now pending in the Superior Court of the State
of _____ in and for the County of _____ bearing the heading set forth above.
INSTRUCTIONS
A. All information is to be divulged which is in the possession, custody, or control of the named
party or parties, their attorneys, investigators, agents, employees or other representatives of the named
parties and their attorneys.
B. The Interrogatories shall be deemed continuing so as to require supplemental answers if the
named parties obtain further information after the Answers to Interrogatories are made.
C. A space has been provided on the form of Interrogatories for your Answer. In the event the
space provided is not sufficient for your Answer to any of the Interrogatories, attach a separate sheet of
paper with the additional information.
D. In the event you cannot answer any Interrogatory in full, after exercising due diligence to
secure the information, so state and answer to the fullest extent possible, specifying your inability to
answer the remainder and stating whatever information or knowledge you have concerning the
unanswered portion.
E. In the event an Answer or portion thereof is based upon information and belief, rather than
actual knowledge, the Answer should so state, and the source or sources upon which such information
and belief are based should be specifically described and identified.
CONCLUDING STEPS Docket Response Due Date

We compute the due date for the answers to our in-

terrogatories (see Workshop 7 for details on how to
Serve and Comply with Filing do this) and make a notation in the office docket
Step 7 Requirements and in our personal calendar. If the answers do not
arrive within a few days after the due date, we begin
taking the steps described in Workshop 12, starting
Since our hypothetical lawsuit is proceeding in the with a demand letter.
U.S. District Court for the District of Arizona, we will
process our paperwork in accordance with the lo- Analyze Response and Take
cal rules of that court. Local rule 1.9 sets forth the Step 9 Any Needed Further Action
forms of papers (i.e., attorney and court identifica-
tion, case numbering, spacing and the like). Local When we have received the answers, we first verify
rule 2.5 deals specifically with interrogatories and that they are properly signed. Then we look
requests for admissions. Both rules are set forth in through them to note any missing or incomplete
Figures W10–3 and W10–4. answers and any objections that have been made.
Figure W10–3 Arizona’s Local Rule 1.9
Rule 1.9
FORMS OF PAPERS—CIVIL AND CRIMINAL
(a) Title Page. The following information shall be stated upon the first page of every document
and may be presented for filing single-spaced:
(1) The name, address, State Bar Attorney number, and telephone number of the attorney
appearing for the party in the action or proceeding and whether the attorney appears for the plaintiff,
defendant, or other party—in propria persona—shall be typewritten or printed in the space to the left
of the center of the page and beginning at line one (1) on the first page. The space to the right of the
center shall be reserved for the filing marks of the Clerk.
(2) The title of the Court shall commence on or below line six (6) of the first page.
(3) Below the title of the Court, there shall be inserted in the space to the left of the center of
the paper the title of the action or proceeding. If the parties are too numerous for all to be named on
the first page, the names of the parties only may be continued on the second or successive pages. In the
space to the right of the center there shall be inserted (A) the number of the action or proceeding; (B) a
brief description of the nature of the document, including demand for trial by jury if made in the
document; and (C) mention of any notice of motion or affidavits or memorandum in support.
(b) Case Numbering. The number to be assigned to each case shall initially be placed thereon by
the Clerk. Such number shall also include the designation “CR” for criminal cases and “CV” for civil
cases, followed by the last two digits of the calendar year in which each case is filed; the number of the
case in the order filed during each calendar year, followed by the designation of the division where
filed, and ending with the initials of the District Judge to whom the case is assigned. Phoenix and
Prescott cases shall be numbered together, differentiated only by the designation “PHX” for Phoenix
cases and “PCT” for Prescott cases. Tucson cases shall be designated “TUC” for Tucson cases.
CV-94-1-PHX-RCB CR-94-1-PCT-EHC
CV-94-2-TUC-ACM CR-94-2-PHX-WPC
CV-94-3-PCT-CAM CR-94-3-TUC-RMB
(c) Pleadings and Other Papers.
(1) All pleadings and other papers shall be submitted on unglazed paper 8 1/2 inches by 11
inches, and shall be signed as provided in Rule 11 of the Federal Rules of Civil Procedure. Documents
intended for filing shall be presented to the Clerk’s Office without being folded or rolled and shall be
kept in flat files. The body of all documents shall be typed space-and-a-half or double-spaced; they shall
not be single-spaced except for (A) footnotes which may be single-spaced, and (B) quotations which
may be single-spaced and indented. All typewritten pleadings, motions and other original papers filed
with the Clerk shall be in a type size no smaller than ten (10) pitch (10 letters per inch). Those that are
printed or otherwise produced with proportional type shall be in a size no smaller than 11 point.
(2) Proposed orders prepared for the signature of a United States District Judge or a
Magistrate Judge will be prepared on a separate document containing the heading data required by
subparagraphs (a) (2) and (3) above as appropriate, and shall not be included as an integral part of
stipulations, motions, or other pleadings. The following uniform signature block will be contained in
the proposed order as indicated below: (Magistrate Judges would be adapted accordingly.)
DATED this _____ day of _____, 20_____
(Judge’s Name)
United States District Judge
(d) Fictitious Parties. Unless otherwise ordered by the Court in a particular case, the Clerk shall
refuse to accept for filing in any civil action or proceeding originally commenced in this Court any
complaint wherein any party is designated and sought to be joined under a fictitious name. (See
Molnar v. National Broadcasting Company, 231 F.2d 684, 687 (9th Cir. 1956).)
(e) Amended Pleadings. Any party filing an amended pleading shall retype the entire pleading
and may not incorporate any part of the preceding pleading, including the exhibits, by reference.
continued
Figure W10–3 Arizona’s Local Rule 1.9, continued
(f) Attachments to Pleadings and Memoranda.

(1) Attachments. No copy of a pleading, exhibit or minute entry which has been filed in a
case shall be attached to the original of a subsequent pleading, motion or memorandum of points and
authorities.
(2) Incorporation by Reference. If a party desires to call the Court’s attention to anything con-
tained in a previous pleading, motion or minute entry, the party shall do so by incorporation by
reference.
(3) Authorities Cited in Memoranda. Copies of authorities cited in memoranda shall not be
attached to the original of any motion or memorandum of authorities.
(4) Attachments to Judge. Nothing herein shall be construed as prohibiting a party from
attaching copies of pleadings, motions, exhibits, minute entries or texts of authorities to a copy of a
motion or memorandum of points and authorities delivered to the District Judge or Magistrate Judge
to whom the case has been assigned. Any such attachments or authorities provided to the District
Judge or Magistrate Judge must also be provided to all other attorneys.
(5) Sanctions. For violation of this Rule, the Court may order the removal of the offending
document and charge the offending party or counsel such costs or fees as may be necessary to cover
the Clerk’s costs of filing, preservation, or storage.
(g) Copy for Judge. A clear, legible copy of every pleading or other document filed shall accompany
each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate
Judge to whom the case is assigned and additional copies for each Judge in three-judge cases.
(h) Civil Cover Sheet.
(1) The Clerk is authorized and instructed to require a complete and executed AO form JS-
44a, Civil Cover Sheet, which shall accompany each civil case to be filed.
(2) Persons filing civil cases who are at the time of such filing in custody of Civil, State, or
Federal institutions, and persons filing civil cases pro se, are exempted from the foregoing requirements.
Figure W10–4 Arizona’s Local Rule 2.5
Rule 2.5
INTERROGATORIES AND REQUESTS FOR ADMISSIONS
(a) Form
(1) When serving interrogatories and requests for admission the propounding party shall
serve upon the responding party a number of sets equal to the total number of separate counsel
representations in the action, plus one (1).
(2) The propounding party shall prepare interrogatories and requests for admission so that
the responding party can provide his or her response in an adequate blank space.
(3) The responding party shall complete all copies of the set served upon him or her, attach
a verification and certificate of mailing, and serve one (1) of such sets upon each separate counsel
representation in the action.
(4) All responses to interrogatories and requests for admission which are not completed in
accordance with subparagraphs (1), (2), and (3) above, shall restate the interrogatory or request for
admission immediately before stating the responses.
(b) Uniform Interrogatories
(1) The interrogatories set forth in Appendix A to these Rules are denominated as Uniform
Interrogatories and are approved for use in accordance with Rule 33 of the Federal Rules of Civil
Procedure, the instructions for use set forth in the Appendix, and this Rule.
(2) The annexed Uniform Interrogatories are not to be used as a standard set of
interrogatories for submission in all cases. Each interrogatory should be used only if it is appropriate in
the particular case. Objections will be sustained to Uniform Interrogatories as a whole set or as to a
particular interrogatory if the provisions of this subparagraph are violated or the interrogatory requires
a response not within the scope of permissible discovery in the particular action.
We analyze the facts disclosed in the answers, mak- 1. In formulating your goals in Step 1, consider
ing a note in our issues outline of any disclosures that some of the allegations of the complaint
that may be useful in proving any of the elements are quite unspecific and lacking in detail, and
of our case, and keeping a list of any factual trails consider how you might use interrogatories to
that need to be explored further. flesh out the allegations of the complaint. Be
sure to take into account whether the court in
Request Supplementation your locality limits the number of interrogato-
Step 10 as Appropriate ries that can be submitted.
2. In Step 2, use the caption that you prepared in
When we compute and docket the due date for the Workshop 4, and write a preamble appropriate
answers, we make another notation in our personal for the court of your locality. Be sure to refer to
calendar for a date a few months into the future to re- the correct rules, and try to imitate as closely
mind ourselves to file a request for supplementation. as possible the style and language customary
in your locality.
Drafting Interrogatories: 3. In Step 3, ask your instructor for advice re-

garding the inclusion of an Instructions and
Learning by Doing Definitions section. If you are to do so, your in-
structor will provide a form for you to follow.
Now it is your turn to try your hand at drafting in-
terrogatories and requests for admissions. Assume 4. In Step 4, go through your set of boilerplate in-
that you are a paralegal in the office of Gail Stod- terrogatories, choose which ones are appro-
dard, attorney for Park Hotels Group. Plaintiff’s priate for this situation, and modify them as
complaint (in the form appearing in Workshop 5) necessary.
has been received and an answer (in the form ap- 5. In Steps 5 and 6, write the individualized in-
pearing in Workshop 8) has just been prepared and terrogatories and requests for admissions as
filed. Assume that the lawsuit is pending in the state appropriate to carry out the goals you set in
court having general civil jurisdiction in your local- Step 1.
ity. You have been assigned to prepare a set of in-
terrogatories and requests for admissions. 6. In Step 7, consult the rules of procedure applic-
able in your court and determine how your set
of interrogatories should be filed and served. If
EXERCISES your court does not allow filing of discovery
In carrying out this assignment, you should follow papers, prepare an appropriate notice reciting
the step-by-step formula for Steps 1 through 7 de- service of the interrogatories and requests for
scribed in this workshop. admissions.
PRACTICE POINTERS
Finding Samples
If you are asked to draft interrogatories or requests for admissions, con-

sider consulting other court and case files. Begin by looking at your own firm’s
case files for similar cases as well as any general interrogatories and requests
for admissions form files. If you are aware of a reported case with similar is-
sues that was tried outside of your firm (especially one that was tried to com-
pletion), obtain the trial court case number. Go to the clerk of the court that
tried the case and ask the clerk to pull those files. In many courts interroga-
tories, answers to interrogatories, and requests for admission are not filed
with the clerk as a matter of course. In those courts these discovery docu-
ments are available in the court’s file only when they have been submitted as
exhibits at trial.
If these documents are not in the file and the case appears pertinent
enough, you may want to contact the attorney who prepared the interrogato-
ries or requests for admission and ask if you can review the file. Such a request
PRACTICE POINTERS
Finding Samples continued
should be made only with the permission of your supervising attorney. Also keep in
mind that no substantial use should be made of such documents without the express
permission of the attorney who prepared them.
You can also find sample interrogatories in publications prepared by trial
lawyers associations. A list of available resources can be identified by consulting the
web page for the American Trial Lawyers Association (atlanet.org). Keep in mind,
however, that some of these services are available only at cost. Litigation books typ-
ically contain sample interrogatories. When looking for any book remember ama-
zon.com, the web address for the world’s biggest bookstore, as well as the web page
of any legal publisher, such as West, Prentice Hall, Lexus, and others. Also consider
publications prepared by state and local bar associations. They often have books
and pamphlets that are used as part of continuing legal education courses contain-
ing samples that have been prepared by leading law firms, many of which have with-
stood court scrutiny.
TECHNO TIP
If you are using the internet to assist in are the web sites of legal publishers
the preparation of interrogatories you such as those mentioned in the practice
may find it helpful to visit the Lois® web pointers. Summaries and reviews of
site at www.pita.com. If you use the books, treatises, practice pamphlets,
“Classic” button you can find your way and the like are often accessible.
to various legal sites that are linked to If you are sufficiently proficient you
that web page. In addition, various le- may be able to phrase your search re-
gal search engines are available there to quests so as to be able to search the var-
assist you in focusing on the area you ious state and federal case databases to
want to research. The site can also take pull up any interesting interrogatories.
you to numerous CLE (continuing legal Gleaning court-reviewed interrogato-
education) pages where the legal spe- ries from cases involving the legal issues
cialty or subject matter you are looking you are dealing with is not an easy task.
for might be found. Other places to visit
FORMS FILE

* Nonuniform interrogatories
* Requests for admission
If possible obtain samples from different types of cases (e.g., personal
injury, commercial litigation, criminal).
Responding to
Discovery Requests
WORKSHOP
11
INTRODUCTION: PURPOSE OF the requesting party the actual documents re-
PREPARING DISCOVERY RESPONSE quested or copies of them. It is not unusual for the
documents assembled in response to a Rule 34 re-
In this workshop, we shift our point of view to that quest for production to comprise many thousands
of the party who must respond to a discovery re- of pages, so it would obviously be impractical to file
quest. Usually, this is not a task that the responding copies of the actual documents with the clerk of the
attorney approaches with great relish—the re- court. Therefore, the rules require us to make the re-
sponding party has nothing to gain and everything quested documents available directly to the re-
to lose by engaging in this forced disclosure of in- questing party. To make our record, we then prepare
formation to an opponent. Preparing a discovery re- a written response to the Rule 34 request for pro-
sponse is a task requiring trained legal judgment, duction, which we file with the clerk and serve on all
meticulous attention to detail, and, often, enormous parties to the suit.
quantities of time. In other words, it is a task for To arrive at the desired end product—appropri-
which trained litigation paralegals are perfectly ate responses that we can file and serve—will require
suited and routinely employed. a good deal of preparation and thought. The neces-
Our main goal in preparing a discovery re- sary preparatory work may include these steps:
sponse is to comply with the rules without giving
away anything that will unnecessarily benefit our ■ Assembling the factual information and docu-
opponent. Modern discovery rules place lawyers ments called for by the request. Usually, the
and paralegals responding to discovery in some- attorneys and paralegals do not have the de-
what of an ethical bind. We have an ethical obliga- gree of detailed knowledge of the facts of the
tion to represent our clients zealously and do our case required. Often, even the client will not
best to win, but the discovery rules may require us have the required information readily at hand,
to turn over to our adversary information that will and will have to gather it from a variety of
be used as ammunition against us. Under the cir- sources. When the client is a corporation or
cumstances, it is perfectly appropriate that we look other entity, it is often necessary for someone
for every possible way—within the bounds of the to conduct an investigation in order to deter-
rules—to avoid handing our opponent any more mine which individuals in the organization
bullets than necessary. have the needed information and to obtain it
from them (an important task often assigned
to paralegals).
PROCEDURE FOR RESPONDING
TO DISCOVERY REQUESTS ■ Making strategic decisions about what infor-
mation must be disclosed and what may be
The discovery rules provide a procedure for re- withheld.
sponding to discovery requests that fulfills two ■ Analyzing the requests themselves to identify
main functions: (1) turning over the requested in- any that are improper and should be objected
formation to the requesting party and (2) making a to.
record of what information has been turned over.
■ Deciding how to organize, express, and pre-
With interrogatories and requests for admissions,
sent the information to be disclosed in such a
both of these functions are accomplished by a doc-
way as to minimize its usefulness as ammuni-
ument in the form of a court paper, having the usual
tion against us.
caption, signature line, and mailing certificate, in
which each of the questions is reproduced and an- Because of space limitations, the remainder of
swered. This document is served on all other par- this workshop concentrates mainly on the proce-
ties to the lawsuit, not just the requesting party, and dure for answering interrogatories. This will provide
a record is made by filing the document itself with an overview and understanding of the general
the clerk of the court in jurisdictions where this is al- process involved in responding to discovery re-
lowed, or, in jurisdictions that prohibit filing of dis- quests, which you will easily be able to extend to
covery papers, by filing a notice reflecting that another kinds of discovery requests. To assist you in
swers have been served. this, after we have covered our suggested step-by-
When we respond to an FRCP, Rule 34, request step system for answering interrogatories, we will
for production of documents, we must turn over to take a brief look at the procedures for responding to
410 WORKSHOP 11 Responding to Discovery Requests
FRCP, Rule 34, requests for production of docu- See Workshop 7 for details about how to compute
ments and to requests for admissions, and try to due dates.
point out some of the special concerns that these As Rule 33(a)(3) implies, the court has the power
may present. to lengthen or shorten the response time. Often,
when you receive a set of interrogatories and look
over the questions, it immediately becomes obvious
Answering Interrogatories: that it will take much longer than 30 days to prepare
complete answers. The usual solution is to ask op-
Step-by-step Instructions posing counsel to agree to an extension of the re-
sponse date. Such extensions are routinely given, up
A set of interrogatories arrives in the morning mail;
to a point. The opposing attorney has a strong moti-
answers need to be prepared. How do we get from a
vation to be reasonable, because she knows that if
stack of questions with blank spaces for the an-
you ask the judge for an extension, you will probably
swers to a proper response that we can serve on the
get one, and the judge will be annoyed that it was not
responding party within the time allowed by the
given voluntarily. How long an extension should you
rules? As usual, we advocate a methodical, step-by-
ask for? Enough to give you time to prepare complete
step approach as the best way of ensuring that no
answers. It is a mistake to let opposing counsel bully
details are overlooked and that all the requirements
you into an extension that is not long enough to al-
of the rules are met.
low you to get the job done. If you have already
agreed to one extension, it may be hard to convince
PREPARATORY STEPS the judge that you need another one.
As we will see, a good deal needs to be done before Extensions should always be confirmed in writ-
we can begin drafting answers. First we must plan ing. In some jurisdictions, it is enough for you to
our work, analyze the questions, and gather the nec- write a confirming letter to the party who is granting
essary factual information. the extension; in others, a stipulation signed by
both parties and filed with the court is required.
Your instructor will inform you of the practice in
Step 1 Docket Response Due Date your locality.
What happens if your response is late? As a
practical matter in most jurisdictions, opposing
Most incoming court papers trigger fixed-response counsel will have to send you a demand letter be-
deadlines, and interrogatories are no exception. If fore he can ask the court to order you to file a re-
your office has a proper central docketing and mail sponse, so it is not uncommon to see answers to in-
handling system in place, the tentative due date for terrogatories served a few days late. There is,
answers to interrogatories will already have been however, a hazard to doing this, even apart from the
computed and entered into the office’s central cal- lack of professionalism that it implies: There is case
endar before you ever receive the interrogatories to law holding that objections not served within the
work on. prescribed response period are waived. Therefore, a
Nevertheless, it is vitally important that you party who files answers to interrogatories late runs
make your own computation of the due date for the the risk that the judge may later summarily overrule
response and keep track of it in your own calendar. any objections appearing in the answers.
Docketing clerks occasionally make mistakes; if you If you approach the due date for answers and it
are assigned the task of preparing answers to inter- is obvious that you need a few more days, never ig-
rogatories, it is your responsibility—not that of the nore the due date; make your supervising attorney
docketing clerk—to see that the response is ready aware of the situation. She may ask the opposing at-
on time. torney for the time needed, or may decide that it is
The usual time allowed for answering inter- better to serve answers that are not complete, and
rogatories is 30 days from the date of service. FRCP, serve supplemental answers when the complete an-
Rule 33(a)(3), provides: swers are ready.
The party upon whom the interrogatories
have been served shall serve a copy of the Your Local Notes
answers, and objections if any, within 30 days
after the service of the interrogatories. A _________________________________________________
shorter or longer time may be directed by the _________________________________________________
court or, in the absence of such an order, agreed
to in writing by the parties. . . .
WORKSHOP 11 Responding to Discovery Requests 411
Analyze the Entire Request Request Information from Client

Step 2 Question by Question Step 3 and Others as Necessary
In answering interrogatories, careful planning is es- When you finish Step 2, you should easily be able to
sential. Only in the simplest cases will you have go through your notes and assemble a list of the in-
enough information in the file to allow you to pre- formation that you need to obtain from others. Usu-
pare competent answers without obtaining informa- ally, it is worthwhile to sit down with your client at
tion from other sources. You cannot possibly pull to- this point and review the list with her.
gether the information required to write answers to If your client is a corporation or other entity, it
a complex set of interrogatories in 30 days unless may not be clear at first whom you should speak to.
you approach the task in an organized way. There will almost always be a contact person within
When you receive a set of interrogatories to an- the client organization who is mainly responsible for
swer, your first task after calendaring the due date is dealing with the organization’s lawyers; that person
to read the set carefully, question by question, and can likely put you in touch with anyone else whom
make a list of what work you will need to do in order you need to contact. Since answers to interrogato-
to be able to answer each one. As you go through ries are to be signed by the client, you will also need
the questions for the first time, we suggest making to find out who within the organization will sign. It
notations under each one, classifying them into cat- goes without saying, of course, that you should
egories as follows: never make direct contacts with clients, or with any-
one in a client organization, without advance per-
■ Questions that can be answered with informa- mission from your supervising attorney.
tion that you already have in the file. These are Your client, or, in the case of a corporation, your
the easy ones—questions like “State plain- client’s representative, is likely to be able to provide
tiff’s full name and address.” On these ques- the information to answer some of the questions at
tions, if you have the answer readily at hand, once. You should write this information down im-
you may wish to jot it down immediately; if mediately in your notes for those questions.
not, make a notation indicating that the re- On other questions, your client will not have the
quired information is in the file. required information immediately available, but can
■ Questions that will obviously be objected to. obtain it and give it to you. As you go through the
Questions calling for information that is priv- questions with your client, make a separate check-
ileged or that involve attorney work product list of all the items that your client is undertaking to
fall into this category. Make a notation indi- obtain. Find out how long it will take your client to
cating the nature of the objection. obtain each item and get it to you, and indicate in
your notes the expected time frame. Before you end
■ Questions that require legal research. Some-
the session, give your client a copy of your checklist
times a question may seem improper or ob-
so that there will be no confusion about what she is
jectionable, but you cannot be sure without
expected to provide.
doing some legal research. Make a notation in-
Still other questions will require investigation
dicating what it is that needs to be researched.
that your client is not equipped to carry out. Never-
■ Questions that require legal judgment about theless, in many such situations, your client will be
case strategy. For example, an interrogatory able to suggest where to go to find the needed infor-
may ask what witnesses you intend to call at mation. Perhaps there are records that you can go
trial or what exhibits you intend to offer. De- through, or perhaps your client can tell you who to
ciding on the preferred strategy for answering contact. Record any such suggestions in your notes.
this kind of question involves judgment calls Sometimes, the answer to a question can most
best left to your supervising attorney; unless easily be obtained by ordering records from outside
you know how he wants such questions an- sources. In an accident case, for example, the police
swered, make a note to ask for instructions. investigative report is often a good source of facts.
■ Questions that call for information that you will In a medical malpractice case, much information
need to obtain from other sources. As a practi- can be obtained from hospital records. The kinds of
cal matter, most interrogatories fall into this records that exist, and the usefulness of the infor-
category. Note what additional information mation contained in them, depend on the circum-
will be needed, and what steps you can take to stances of the case.
obtain it. Sometimes you will know exactly Usually, after going through the questions with
where to go to obtain the needed information; your client and taking advantage of all the record
more often, you will have to track it down. sources available to you, some questions will remain
that simply require investigation. Keep in mind that If we have been keeping our notes using a word
there are limits to the amount of investigation that processing document containing an electronic
you are required to do in answering interrogatories, copy of the original interrogatories, we can do this
as discussed in the sidebar. by editing our notes for each question into a
proper answer. We may do this a few questions at
DRAFTING STEPS a time as information becomes available, or all at
once when we have gathered all of the necessary
As we obtain the necessary information, we can information.
begin putting together the pieces of the response.
SIDEBAR
The Duty of Inquiry—How Much Investigation Must You Do?
You will often see interrogatories that call for in- in our answers. Moreover, if someone within the
formation that is broader in scope or deeper in detail client’s control—for example, a lawyer working for the
that you can readily obtain. In our hypo, for example, client—has the information, it must be provided. We
Shannon’s attorney might reasonably send Park Hotels are not, however, required to extend our investigation
Group an interrogatory asking Park Hotels Group to to purely outside sources. (If we do obtain information
itemize and describe all maintenance on all Banbury from outside sources, however—say, as a part of our
Park Hotel guest room doors during the last year. It own investigation of the case—that information is
may be that Park Hotels Group does not keep detailed now within the possession and control of our client be-
records of all such maintenance. In theory, an accurate cause we have it, and we cannot hold it back unless it
and detailed answer could be constructed, but it might qualifies under the work product doctrine discussed
require an all-out investigation—tracking down and later in this workshop.)
interviewing former employees, contacting outside ser- At times, it is not clear whether information called
vice contractors and materials suppliers, digging for by an interrogatory is within the possession and
records out of archives, etc. To what lengths are we re- control of our client. If our client is General Motors,
quired to go to answer this kind of interrogatory? must we check with each of its hundreds of thousands
The textbook answer is that we are required to of employees to see if anyone has the facts called for?
disclose any information that is in the possession or No, in such situations a reasonable in-house investi-
control of our client. In general, this means that if the gation is probably enough. When in doubt, some
answer is obtainable from records that belong to our quality time spent doing legal research will likely result
client, or known by any employees of our client, we are in a clearer idea of what is the range of knowledge
required to track down the information and include it with which your client is chargeable.
SIDEBAR
Keep Your Deadlines in View
We hate to keep harping about deadlines, day answers are due and then, unable to pro-
but experience teaches that one of the pitfalls for duce a response ready to serve, offer excuses
new paralegals assigned to answer interrogato- about the client not cooperating, should expect
ries is the potential conflict that can arise be- a short career path. Keep close track of your
tween a looming due date on one hand and a deadlines. Stay in contact with your client—do
procrastinating client on the other. To answer not make a pest of yourself, but stay in con-
interrogatories, you need information, part of tact—and if a problem seems to be developing,
which must usually come from your client. You alert your supervising attorney well in advance
cannot prepare proper answers until you get of the deadline.
that information. Paralegals who wait until the
erial. When misleading definitions are found, an ob-

Step 4 Caption and Preamble
jection should be inserted immediately after the of-
fending paragraph (see Step 5 for instructions on
As with any court paper, answers to interrogatories how to express an objection). Overreaching in-
begin with the usual caption and end with date and structions can easily be dealt with by a blanket ob-
signature lines and a certificate of mailing. The doc- jection, which, in the spirit of answering boilerplate
ument to be served is, however, typically assem- with boilerplate, can be inserted after the Instruc-
bled in a way that is somewhat different from the tions and Definitions section as a matter of routine:
way in which we have prepared other court docu-
ments. Traditionally, interrogatories were served in To the extent that the foregoing Instructions
multiple copies, and the answers were typed into and Definitions purport to impose burdens or
blank spaces provided for the purpose on the orig- obligations beyond those imposed by the
applicable rules of civil procedure, they are
inal document. (Under the rules of most courts, it is
objected to, and will not be complied with.
also permissible, though usually viewed as some-
what tacky, to hand write answers into the blanks.)
Object to Each Objectionable
A signature page was added, the words “AND AN- Step 5 Question If It Is Strategically
SWERS THERETO” were added after the title “IN-
TERROGATORIES” to the right of the caption, and Beneficial to Do So
the resulting document was served as the response.
Since we are, by preference, working with an We now turn to the important subject of objections.
electronic copy of the original interrogatories, our To use objections intelligently and advantageously,
easiest choice will be to insert our answers into the we first need to know what kinds of questions are
word processing document containing the ques- objectionable. Then, we need to learn when to ob-
tions. We will change the title in the caption as nec- ject and when not to; that is, how to tell when an ob-
essary, add our own signature page and certificate jection will advance our case and when we are bet-
of mailing, and print the finished response. ter off just answering the question.
When and Why to Object—Perhaps the most

Your Local Notes important thing to keep in mind about interrogato-
_________________________________________________ ries is that every single answer that we give carries
the potential to blow a gaping hole in our case. Our
_________________________________________________
opponent can—and will, if it seems advantageous
to do so—present any interrogatory and our an-
swer to it as a part of his evidence at trial. In some
Dealing with Overreaching Instructions and ways, a large blowup of a bad interrogatory answer
Misleading Definitions—We have seen in previ- sitting on an easel in front of the jury is worse than
ous workshops that many practitioners routinely in- a bad answer given by our client while testifying be-
clude a boilerplate section entitled Instructions and cause with the interrogatory, there is no opportu-
Definitions at the beginning of a set of interrogato- nity to elaborate, the answer is just there and we
ries, requests for admissions, or requests for pro- are stuck with it.
duction. Often, these include instructions or defini- This is not to suggest tampering with the truth
tions that purport to place burdens and obligations in our answers. Answers to interrogatories are
on the answering party that go beyond the require- sworn testimony. Never yield to the temptation to
ments of the discovery rules. give a false answer—to do so is unethical, and, even
For example, there may be an instruction pur- leaving aside the moral issues, it is not worth risk-
porting to require investigation to obtain informa- ing your career and your future over one client and
tion beyond that in the possession or control of the one case.
answering party. Or there may be a definition that On the other hand, neither do we volunteer
takes a word with a commonly understood meaning damaging information if we have some legal way to
and attempts to redefine it in some way more ad- avoid doing so. If a question is legally objectionable,
vantageous to the propounding party. we have every right to object. But should we?
As we have seen, answers to interrogatories can
be used for a number of purposes at trial, and When Not to Object—Sometimes, an objection
blowups of salient passages can be paraded in front may harm our case more than the answer to the ques-
of the jury. We must therefore go over the Instruc- tion would have. How can this happen? Remember,
tions and Definitions section carefully, if one is pres- our opponent is a litigator too and may not be accus-
ent, looking for any improper or misleading mat- tomed to taking “no” for an answer. Our objection to
a question may merely serve to plant a red flag on action. . . . The information sought need not be
whatever subject the question is asking about, and admissible at the trial if the information sought
provoke our opponent to dig more deeply than ever appears reasonably calculated to lead to the
in precisely that spot. discovery of admissible evidence.
Excessive objection can also alienate the judge. Even though the requirement of relevancy is re-
We can be sure that no judge will ever agree with 100 laxed—a question need only be relevant to the sub-
percent of our objections, however well founded ject matter of the action, rather than strictly rele-
they may be. Add to this the fact that most judges vant to the issues raised by the pleadings—there
hate wasting their time on discovery disputes, and are limits to how far a party can go in asking about
it is easy to see why litigators who insist on making matters not directly pertinent to the lawsuit. Any
a war out of every discovery question may find the discovery question must, at a minimum, be reason-
weather inside the courtroom turning chilly. ably calculated to lead to admissible evidence. We
Here are a few suggestions about the proper use are free to object to any question that fails this test.
of objections:
Example interrogatory: Suppose Park
■ Use objections purely as a tool to advance Hotels Group’s attorney sends Shannon an
your case. If you gain nothing by making an interrogatory asking “State the names of all
objection, do not make it. clubs, organizations, or associations of which
■ Make appropriate use of the “object, then an- you have been a member at any time since
swer anyway” technique. See sidebar. January 1, 1998.”
Analysis: Could this information be useful
■ Never make frivolous objections. If you make to Park Hotels Group’s attorney? Conceivably—
an objection, be sure that you can cite a rule any information about a witness’s likes,
or case law to back it up. dislikes, and biases can be useful in preparing
■ Keep in mind that objecting to a question for cross-examination. But is it reasonably
may serve merely to increase your oppo- calculated to lead to admissible evidence? Few
nent’s determination. Before deciding to ob- judges would think so. This kind of
ject, interpret the question carefully and try overreaching question should usually be
objected to as a matter of principle, if for no
drafting sample answers. It may be that you
other reason than to send the opposing
can find a way to answer the question truth- attorney a message that we will not be patsies.
fully but harmlessly. Example objection: “This interrogatory is
objected to as irrelevant to the subject matter
Types of Objectionable Questions—What are the of the action and not reasonably calculated to
common grounds for objection to an interrogatory? lead to admissible evidence.”
What things in an interrogatory should alert us to ob-
ject? Although a complete treatment of the subject is Ambiguous questions: In general, the rules of ev-
best left for a course on evidence, we can easily make idence governing the form in which questions are
a checklist of the most common objections. Some of stated apply to interrogatories. This is only reason-
these are based on rules of evidence, such as objec- able, since these rules are designed to ensure that
tions to the form of a question and objections based the question is clear enough so that the answering
on privilege. Others are based on the discovery rules, party knows what is being asked. An ambiguous
which impose their own limits on the kinds of ques- question—a question capable of more than one
tions that can be asked. Here is a summary of the meaning—is objectionable.
grounds for objection most useful in answering inter-
Example interrogatory: Suppose Shannon’s
rogatories, together with example objections:
attorney sends Park Hotels Group an
Questions exceeding the scope of discovery: interrogatory asking “Describe all maintenance
Not all of the rules of evidence apply to interroga- performed on the room door since January 1,
tories and other discovery questions; the range of 1995.”
permissible questions is broader in discovery than Analysis: Which room door? The
it is in the courtroom. In particular, a discovery interrogatory is probably intended to refer to
question is not objectionable merely because it is the door to the room occupied by Shannon, but
irrelevant by evidentiary standards or because it it does not say so. Usually, ambiguous
calls for hearsay. The standard for discovery ques- interrogatories are the result of poor drafting
tions is Rule 26(b)(1), which provides: rather than an intention to set a trap of some
kind. It is often easiest to note the objection,
Parties may obtain discovery regarding any then reinterpret the question and go ahead and
matter, not privileged, which is relevant to the answer it—if we stand on ceremony, the
subject matter involved in the pending opposing party will resubmit the question in
better form, and all we will have bought ■ Husband–wife privilege. A wife cannot be
ourselves is another response to write. See compelled to testify about private communi-
sidebar on the “object, then answer anyway” cations with her husband, or vice versa. A
technique. question inquiring into such communica-
Example objection and response: “This tions is objectionable.
interrogatory is objected to as ambiguous, in
that it does not indicate the specific door to ■ Attorney–client privilege. An attorney is not
which it refers. Assuming that the door of Room permitted to answer questions about what a
409 at Banbury Park Hotel is intended, for client has said to the attorney in confidence
plaintiff’s information, the maintenance while seeking legal advice. Under the laws of
performed on that room door since January 1, most states, this privilege extends to com-
1995, included replacement of the door closer munications made through paralegals and
spring on May 24, 1998; rekeying the door lock others in the employ of the attorney.
on February 3, 1998, September 17, 1998, and
May 2, 1999; and periodic preventive ■ Priest–penitent privilege. Under the laws of
maintenance inspections and lubrication most states, a statement made privately to a
performed approximately on a monthly basis.” member of the clergy in the course of confes-
sion or counseling is privileged.
Misleading questions: Misleading questions are ■ Privilege against self-incrimination. The Fifth
another category of questions that are improper be- Amendment of the U.S. Constitution gives
cause of their form. The subject matter of the ques- each person the right to refuse to answer a
tion may be perfectly appropriate, but the question question if the answer would tend to incrimi-
is asked in such a way that the answer is likely to be nate her.
misinterpreted. The classic example of a misleading
■ Other privileges. Some states also grant priv-
question is “Have you stopped beating your wife?”
ileged status to communications with ac-
Example interrogatory: Suppose Park countants, journalists, social workers, and
Hotels Group’s attorney sends Shannon the others. Your instructor will inform you of
following interrogatory: “Describe the events what privileges are available in your state,
that occurred after you admitted defendant and tell you where to locate the legal author-
Collins to your room.” ity for them.
Analysis: Regardless of how Shannon
answers this interrogatory, her answer will give Exactly what kinds of communications qualify
the impression that she is admitting that she for these and other privileges depends on the spe-
voluntarily allowed Dr. Collins into her room. cific provisions of the state laws prescribing each
Misleading questions should always be objected privilege. Usually, a communication is not privi-
to. Whether to use the “object, then answer leged if a third person is present when it occurs; for
anyway” technique here is a judgment call. this reason, lawyers (and paralegals) must be care-
Example objection and response: “This ful not to allow anyone other than the client to be
interrogatory is objected to as misleading, in present when discussing the case with the client. In
that plaintiff at no time admitted defendant theory, if you allow, say, your client’s girl friend to
Collins to her room, and defendant Collins
be present in the room while interviewing the
entered the room without plaintiff’s knowledge
or consent.” client, the attorney–client privilege does not attach
and you could be compelled to testify about what
was said.
Questions calling for privileged communications:
Evidentiary privileges arise from laws that allow cer-
Example interrogatory: Suppose, in our
tain types of communications to be kept private. hypo, that Shannon’s attorney sent the
Which privileges exist, and what their limits are, de- following interrogatory to Dr. Collins’s wife
pends on the state; each state has its own laws gov- (recall that she was included in the suit because
erning evidentiary privilege. Even in federal court, ev- Texas is a community property state): “Relate
identiary privileges are mainly determined by the the substance of each and every
laws of the state in which the court sits. communication between you and defendant
Common evidentiary privileges include the Arthur Collins the subject matter of which
following: concerned the nature of the injuries received by
defendant Arthur Collins.”
■ Physician–patient privilege. Communications Analysis: Some—but not necessarily all—of
between a doctor and patient involving med- the communications called for by this
ical treatment are usually privileged and can- interrogatory are privileged. Communications
not be inquired into. made in the presence of people other than
Dr. Collins and his wife would likely not be

Your Local Notes
privileged. With this kind of question, we must
be very careful, because of the potential _________________________________________________
problem of waiver (see sidebar). We are free to
_________________________________________________
refuse to answer the entire interrogatory, since,
by its terms, it is not limited to unprivileged
communications. Most litigators would strongly
resist discovery aimed at communications
between client spouses, privileged or
otherwise. Work product: If the rules allow interrogatories
Example objection and response: “This about any subject relevant to the subject matter of
interrogatory calls for communications between the action, can a party ask for, say, an opposing at-
defendants Collins that are privileged by reason torney’s recollection or notes of an interview with a
of defendants’ status as husband and wife;
witness? Or suppose a paralegal—maybe you!—has
defendants object on the basis of marital
privilege and decline to answer.” spent weeks going through a roomful of business
records and prepared a summary of their con-
tents—can the opposing party ask for your conclu-
sions in an interrogatory?
Here a difficult issue arises. Clearly, these ques-
SIDEBAR tions address relevant subject matter, yet there is
something disturbing about the idea of requiring an
The Problem of Waiver attorney to turn over the fruits of his legal work for
a client.
One hazard to answering a question that is The courts grappled with the problem for
objectionable is that doing so usually constitutes a years, and the resulting legal principles now appear
waiver of the objection. So what? If we are answer- in FRCP, Rules 26(b)(3) and 26(b)(4). These rules
ing the question anyway, surely we did not mind embody what is usually referred to as the work
waiving our objection? product doctrine.
Not necessarily. Unfortunately, sometimes the What is attorney work product, and under what
waiver can extend to other things beside the ques- circumstances is it discoverable? Rule 26(b)(3) ex-
tion that we answered. Questions delving into ar- pressly applies to any “documents . . . prepared in
eas that are privileged are a particular source of anticipation of litigation or for trial by or for another
concern. Consider, for example, the example inter- party or by or for that other party’s. . . attorney. . . .”
rogatory to Dr. Collins’s wife, “Relate the substance Such materials can be obtained only upon a showing
of each and every communication between you and that the requesting party has a “substantial need”
defendant Arthur Collins the subject matter of for the information they contain and has no other
which concerned the nature of the injuries received practical way to get it.
by defendant Arthur Collins.” Although Rule 26(b)(3) refers only to “docu-
ments and tangible things”—not to interrogatories—
Clearly, this interrogatory calls for a communi-
it is logical that if a party is not entitled to obtain a
cation that is privileged—a wife cannot be com-
document because it is attorney work product, nei-
pelled to testify about communications with a
ther would an interrogatory asking about the con-
spouse. However, the subject matter of the question
tents of the document be proper, absent the showing
seems harmless, and there could also be nonprivi-
of need required by the rule.
leged communications between Dr. Collins and his
Work product issues most commonly arise in
wife—perhaps this would be a good candidate for
connection with statements taken by an attorney or
the “object, then answer anyway” strategy?
paralegal from a nonparty witness and reports ob-
Not a good idea with privilege objections. If we tained from expert witnesses. In general, witness
answer the question, we run the risk that by doing so, statements are work product and not discoverable
we will be deemed to have waived the husband–wife as long as the witness is available so that the party
privilege—not only for this question, but for all ques- seeking the information can take her own state-
tions, present and future. When a question appears ment. However, a witness has the right to a copy of
to invade an area covered by an evidentiary privi- his own statement. The discoverability of reports
lege, we will always object and decline to answer, un- and other information submitted by expert wit-
less we are sure that we are willing to waive the priv- nesses raises issues that are beyond the scope of
ilege entirely. this introductory text; the general principles can be
found in FRCP, Rule 26(b)(4).
Example interrogatory: “Identify each and Analysis: Relevant to the subject matter of
every person from whom you have obtained the lawsuit? Probably. Calculated to lead to
information or statements in connection with admissible evidence? Possibly. Reasonable in
this matter, and, separately for each such terms of the work required to compile the
person, state the substance of the information information necessary to give a complete
so obtained.” answer? Most judges would probably say “no.”
Analysis: This interrogatory is asking for We would object to this kind of question, and
work product. We will object and decline to throw in a scope of discovery objection for
answer. good measure.
Example objection: “This interrogatory is Example objection: “Defendant objects to
objected to as calling for attorney work this interrogatory as burdensome and
product.” oppressive and not reasonably calculated to
lead to admissible evidence.”
Burdensome questions: Any competent litigator
in a case of any complexity can dictate in an hour a
set of interrogatories that will take a team of para-
SIDEBAR
legals months of full time work to answer. Must we
really sit still for discovery tactics of this kind? The “Object, Then Answer
Traditionally, the answer was “yes.” If an inter- Anyway” Technique
rogatory was otherwise proper, it had to be an-
swered, regardless of how much work would be re- As we have seen, some interrogatories are ob-
quired to do so. If you peruse the case annotations jectionable, but only because of some defect that is
under the federal discovery rules, you will find easily corrected. This is often the case with poorly
cases in which federal courts have required parties worded questions. If we object to such questions
to answer interrogatories requiring review of hun- and provide no response, the opposing party is
dreds of thousands of pages of records to answer. likely to reword the question and send it to us again.
In the last decade or so, however, many courts Then we will have another set of interrogatories to
have become much less tolerant of discovery re- keep track of and more work to do, and since the
quests that seem designed mainly to make the re- opposing party will now have been forced to think
sponding party spend time and money. Although about the question, it will no doubt be framed in a
there is considerable variability from one jurisdic- way that is better for our opponent. One useful re-
tion to another and even from one judge to another, sponse tactic is to set out our objection to the ques-
many judges nowadays refuse to require answers to tion, thereby preserving the objection, then reword
discovery requests deemed unreasonably burden- the question to our liking and answer it.
some in relation to the importance of the informa- Example interrogatory: Suppose Dr. Collins’s
tion sought to be obtained. In theory, when con- attorney submits the following interrogatory to be
fronted with an unreasonably burdensome answered by Shannon. “With regard to the hand
interrogatory, it is up to the responding party to file gun with which plaintiff shot defendant, state the
a motion for a protective order under FRCP, Rule date on which plaintiff purchased said hand gun
26(c). In practice, however, many litigators would and the name and address of the seller.”
simply object to such questions and leave it up to Analysis: This interrogatory is technically mis-
the opposing party to raise the issue with the judge leading and lacking in foundation in that it as-
if desired. sumes that Shannon acquired her hand gun by
Example interrogatory: Suppose you purchasing it. Let us assume that, in fact, it was
represent a large corporation with 250,000 given to her by her father. Theoretically, her attor-
employees that is being sued by a former ney could object to the form of the interrogatory
employee for an alleged sexual harassment. The and not answer it, but there is really nothing to be
plaintiff’s attorney submits the following gained by doing so. Better to note the objection,
interrogatory to be answered by your client: and give defendant the information.
“State the name, address, and telephone
Example response: “Plaintiff objects to the
number of each and every person who has
made any allegation of sexual harassment or form of this interrogatory in that it assumes that
other employment-related misconduct against plaintiff was the owner of the hand gun and ac-
defendant corporation at any time during the quired it by purchase. For defendant’s information,
five years preceding this lawsuit, and, with and without waiving said objection, the hand gun
respect to each such allegation, describe the was a gift to plaintiff from her father.”
conduct alleged to have occurred and identify
all persons involved therein.”
If you are to become truly expert at responding to We repeat this process of drafting, analysis, and re-
written discovery, you need to evolve your own check- drafting as many times as necessary, until we are
list of all of the things that can provide a basis for ob- sure that we have sanitized our answer, eliminating
jecting to an interrogatory. A good way to do this is to every unnecessary word or fact, and that nothing
go through the annotations to FRCP, Rules 26 and 33, unexpected can be made of what remains.
in one of the annotated sets of federal statutes such as The discussion to follow will offer specific ad-
U.S. Code Annotated. The annotations—paragraph- vice about how to write answers, with examples to
sized summaries of the holdings of federal cases—are illustrate the concepts.
organized by topic, making it easy to list the various
grounds on which federal courts have held interroga- Style and Wording of Answers—We do not write
tories objectionable, and to get an idea of what kinds interrogatory answers in a conversational style or,
of facts are needed to sustain each kind of objection. for that matter, in a style that an English composi-
If you do this, it is useful to include in your checklist tion teacher would approve of. The style that we use
or notes the citations to a few key cases in each cate- is chosen to advance our goals, which are to provide
gory; including a case citation or two in an objection our opponent with the least useful answer that sat-
can be a useful way to make the objection look well isfies the requirements of the discovery rules. As
thought out and serious. you carry out work assignments involving discov-
ery, you will quickly develop an ear for the required
style. Meanwhile, we can offer a few suggestions
Your Local Notes
about style and wording, using the following exam-
_________________________________________________ ple interrogatory as a basis for discussion:
_________________________________________________ Example interrogatory: “State whether
defendant Arthur Collins had consumed any
alcohol or other intoxicating substances in the
twelve-hour period prior to his entering
Answer Each Question plaintiff’s hotel room ” Assume that Dr. Collins
Step 6 That Should Be Answered had had a few glasses of wine with dinner, but
that he had drunk no alcohol since dinner time
Let us assume that we have carefully analyzed our and was not intoxicated at the time he returned
set of interrogatories, culled out all of the objection- to the hotel.
able questions, and done enough research and fact The suggestions:
gathering to locate the information necessary to an-
■ Answers should be couched in simple de-
swer the rest. Now we can begin drafting answers.
claratory sentences and be limited to state-
As we write a discovery response, we are always
ments of fact. Never resort to imagery,
mindful of the fact that, under many circumstances,
metaphor, or comparisons.
the opposing attorney can use the questions and an-
swers in cross-examining our witnesses and read Example of how not to answer: “Dr. Collins
them to the jury during argument. Therefore, our ap- was sober as a judge when he returned to the
proach will include these tasks: hotel after dinner.”
Analysis: The opposing party will easily
1. Draft an answer. find witnesses who will testify that Dr. Collins
2. Check the draft answer against the question to had wine with dinner, and the “sober as a judge”
be sure that we have addressed everything that comment will be used to make him look
ridiculous. Worse yet, it is the kind of catchy
the question requires and that we have not in-
phrase that the jury will remember forever.
cluded anything in the answer that the question Better to limit ourselves to provable facts.
does not specifically ask for.
■ Answers should include no unnecessary words.
3. Imagine the ways in which our answer could be This is not literature—we do not need or want
used to imply things that we did not intend. lead-in paragraphs, long narratives, or other
Imagine the answer being read to the jury, or verbiage whose only purpose is to make the
used to contradict a statement made by our answer more readable or interesting.
client on the witness stand. Imagine yourself in
the position of the opposing attorney—how Example of how not to answer: “While
could she best use this answer against our enjoying his dinner at the MGM Grand Hotel,
client? Dr. Collins, an expert oenophile, shared with his
companions an excellent California Cabernet
4. Redraft the answer. Sauvignon.”
Analysis: We are writing a discovery belief, he had two glasses of wine between the
response, not a novel. This answer would easily hours of approximately 8:00 and 9:00 P.M.” Then
be used to make Dr. Collins appear snobbish when it turns out that he actually had half a
and superior, and would alienate many jurors. bottle of wine with dinner and two cocktails at
■ Discovery answers are not the place for humor,
the show later that night, it will be harder for
plaintiff to make him look like a deliberate liar.
ridicule, sarcasm, anger, cheap shots at the op-
posing party, or other appeals to emotion. The ■ However, do not get carried away with the
opposing attorney will read your humorous “weasel words” to the point that the answer
jibe to the jury in a such a way that no one will can be made to seem evasive, as though your
laugh—guaranteed. Avoid the temptation. client is hiding something.
Example of how not to answer: “Dr. Collins, Example of how not to answer: “It is
unlike plaintiff, is not in the habit of indulging in possible that Dr. Collins may have consumed
escapes from reality, chemical-induced or some wine during the period referred to, but he
otherwise.” does not recall at this time.”
Analysis: Remember, interrogatory answers Analysis: Although “I don’t recall” is a
are in writing. Your opponent will have plenty of perfectly appropriate answer if it is true, judges
time—months and months—to think of exactly and jurors tend to be skeptical of litigants
the best way to use this response against your whose memory always seems to fail whenever a
client in the most embarrassing way possible. tough question is asked. Avoid using the “I don’t
recall” excuse except where the answering
■ Avoid volunteering information that is not
party genuinely does not recall.
asked for. Your job is not to enlighten your
opponent—it is to comply with the discovery And now, how we would answer the question:
rules, period.
Example Interrogatory: “State whether
Example of how not to answer: “Dr. Collins defendant Arthur Collins had consumed any
drank two glasses of wine with his dinner at alcohol or other intoxicating substances in the
approximately 8:00 P.M. and had no other twelve-hour period prior to his entering
alcohol in the twelve hours preceding the plaintiff’s hotel room ”
incident. Dr. Collins does not use “other Example Answer: “Any alcohol: yes. Other
intoxicating substances.” intoxicating substances: No.”
Analysis: Want to bet that plaintiff’s
attorney will not be able to find a waiter, Dealing with Some Commonplace Situations—
another diner at the restaurant, or someone We now move from the general to the specific. We
else who will testify that Dr. Collins actually have just offered some general suggestions that are
consumed at least four glasses of wine at valid regardless of the type of question; now, let us ex-
dinner? That is the bet you are making if you
amine some of the specific situations that come up
give this answer, and if you lose it, your client
will look like a liar in front of the jury. Worse frequently in civil discovery.
yet, the answer volunteers the claim that Dr. Answering questions when all of the facts are not
Collins does not use other intoxicating yet in: The response date is fast approaching. You
substances—practically an engraved invitation have tried to assemble the information required to
to check out his personal life to see whether answer the question and you have part of the infor-
anyone can be found who will say that he mation in hand—but not all. This situation arises all
smoked some marijuana once. the time in civil lawsuits. Precisely how best to deal
■ Use words and phrases like “approximately” with it depends somewhat on local custom and on
and “to the best of defendant’s present knowl- the strictness of your local judiciary; your instructor
edge” to leave yourself some wiggle room in will advise you what is expected in your locality.
case the facts turn out to be different than you
are supposing. Your Local Notes
Example of how not to answer: “Dr. Collins _________________________________________________
drank two glasses of wine between 8:00 and 9:00
P.M. and had no other alcohol in the twelve _________________________________________________
hours preceding the incident.”
Analysis: Leaving aside the problem that
this answer volunteers information that the Example interrogatory (To plaintiff
question does not ask for, it is stated in terms Shannon Martin): “With respect to each medical
that are far too precise. Better to write, “To the expense that you claim to have incurred as a
best of Dr. Collins’s present recollection and result of the incident related in plaintiff’s
complaint, state the name of the medical undergo medical treatment and to incur
provider, the amount of the expense, and the expenses of such ongoing treatment.”
nature of the service or other benefit for which Analysis: Our preferred response would be
the expense was paid, and identify each invoice along these lines. We have carried out our
or other document reflecting or evidencing obligation to disclose all information that we
each expense.” have; and we have made it clear that we do not
(Assume that at the time the interrogatory is re- yet have all the information requested. Notice
ceived, Shannon is still undergoing medical treat- that we have not offered to supplement the
ment. She has received final bills for some of the answer when we get the information.
medical expenses already incurred, but the paper- Answering questions that call for extensive re-
work for others is still wending its way through the search: It is not difficult to draft an interrogatory
insurance system.) that will require a great deal of time and work to an-
Here are examples illustrating some of the strate- swer. Suppose, in our hypo, that Banbury Park Hotel’s
gies commonly seen for answering an interrogatory usual way of keeping records of general maintenance
of this kind: and repairs is to issue work orders, with any notes by
Example answer 1: “Investigation the maintenance technician being made on copies of
continuing.” the work orders. Work orders are filed in chronologi-
Analysis: This kind of answer is technically cal order, not in order by subject or location.
improper, but often seen because many judges Now plaintiff’s attorney serves the following in-
do not enforce the rules rigorously. In theory, the terrogatory:
responding party must answer as completely as
possible within the 30 days allowed by the rules; Example Interrogatory: “For each occasion
as a practical matter, it will take the requesting since January 1, 1995, on which maintenance or
party at least a month or two, and often more, to repairs were performed on any guest room door,
set up and file a motion to compel answers and door lock, or door hardware, state the date, the
have it heard and decided—by which time the name of the person performing the maintenance
responding party may be in a position to give a or repair, the nature of the maintenance or
complete answer, or may respond to the motion repair, and the number of the room where the
by arguing that the facts are still not available. It maintenance or repair was performed.”
appears that the judiciary, at least at the federal The work orders in question fill several large filing
level, is becoming less tolerant of this kind of cabinets. The only way to distill the information
rule bending.
called for is for someone to go through the work or-
Example answer 2: “Plaintiff does not have
the information necessary to give a complete ders, one by one, and pull out those that involved
answer to this interrogatory at this time. doors, locks, or door hardware, a task that will take
Plaintiff will supplement this response at such days. Must the hotel really pay for a high-priced
time as the information becomes available.” paralegal to spend days sifting through reams of
Analysis: Not recommended. We would boring work orders?
never voluntarily take on an obligation to Rule 33(d), FRCP, offers an alternative way to re-
supplement beyond that imposed by Rule 26. If spond:
we should forget to send out the supplemental
answer, we might find ourselves in trouble. (d) Option to Produce Business Records.
Better to leave the burden on the requesting Where the answer to an interrogatory may be
party to ask for supplementation. derived or ascertained from the business
Example answer 3: “Dr. John Smith, records of the party upon whom the
orthopedic surgeon, for setting plaintiff’s interrogatory has been served or from an
broken finger, $500; Dr. Bill Jones, emergency examination, audit or inspection of such
physician assisting, $150; Clark County Hospital, business records, including a compilation,
emergency room treatment of broken finger, abstract or summary thereof, and the burden of
$410;. . . . (etc.).” deriving or ascertaining the answer is
Analysis: We regard this kind of answer as substantially the same for the party serving the
risky. It does comply with the rules by interrogatory as for the party served, it is a
disclosing the information that plaintiff now sufficient answer to such interrogatory to
has. But it does not make clear that these are specify the records from which the answer may
not the only expenses claimed. be derived or ascertained and to afford to the
Example answer 4: “The medical expenses party serving the interrogatory reasonable
for which plaintiff has received final bills to date opportunity to examine, audit or inspect such
are: [list them]. Plaintiff has incurred some records and to make copies, compilations,
medical expenses for which she has not yet abstracts or summaries. A specification shall be
received final bills. Plaintiff continues to in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can ■ Use objections appropriately. If you have a
the party served, the records from which the valid objection to a question that would oth-
answer may be ascertained. erwise require you to disclose a bad fact, as-
Park Hotels Group could therefore respond along sert the objection and be prepared to go to
the following lines: the mat over it. But do not assert objections
that you know are unfounded, and try to
Example response: “The answer to this avoid provoking battles over trivial questions
interrogatory may be derived or ascertained that are objectionable as worded but that you
from business records of Park Hotels Group,
will have to answer as soon as your opponent
specifically maintenance work order files for
Banbury Park Hotel. These records are located rewords them. (See sidebar on the “object,
in the main file storage room at Banbury Park then answer anyway” technique.)
Hotel, Las Vegas, Nevada. Plaintiff will be ■ If a question clearly asks for information that
afforded a reasonable opportunity to examine, you know is bad for your case, disclose the
audit, or inspect such records and to make bad fact openly and forthrightly. Never yield
copies, compilations, abstracts, or summaries to the temptation to tone down a bad fact or
thereof upon reasonable request by plaintiff, at to bury it in the middle of some unrelated dis-
a time and place to be agreed upon between
closure in the hope it will not be noticed. At-
plaintiff and defendant.
tempts to camouflage or downplay bad facts
Problem solved! Well, not entirely. There is always a merely serve to call attention to them and
risk involved with turning an opposing party loose make them look worse—no one is fooled.
among a client’s records. You can be sure that if there ■ Most especially, never hide, destroy, or al-
exists, anywhere on earth, a piece of paper capable ter evidence. Such tactics are unethical, can
of destroying Park Hotels Group’s case, Mr. Murphy destroy your reputation and career, and al-
(of Murphy’s law fame) will have misfiled it some- most never work. Bad facts have a way of
where in those filing cabinets full of work orders! coming out eventually, however hard you
We do not mean to imply that the voluminous try to hide them.
records response should never be used—merely that
reasonable care should be taken. Certainly, a lawyer Interrogatories calling for disclosure of exhibits
or paralegal for Park Hotels Group should look and witnesses: As we saw in Workshop 10, each
through any records before the opposing party is al- party in every lawsuit should nearly always submit
lowed access. It goes without saying that an opposing interrogatories to all opposing parties asking for
party should never be left alone in a client’s file room. disclosure of witnesses and exhibits.
It is best to move the records to another location. We
Example interrogatory (Submitted by
would also discuss the pros and cons of the volumi- Shannon’s attorney to defendant Park Hotels
nous record response with our client and get our Group): “State the name, address, and
client’s approval before responding in this way. telephone number of each and every person
Handling “bad” facts: As we have learned in this whom you will or may call as a witness at the
workshop, the mechanics of writing a discovery re- trial of this matter or whose testimony you will
sponse are quite straightforward. If we were not or may offer, whether in person, by deposition
working in the context of an adversary process, the or affidavit, or otherwise, in connection with
task would be easy. Any reasonably literate person any proceeding herein.”
can learn the skills necessary to research and write We must take particular care with interrogatories of
answers to questions. The real challenge lies in the this kind. Judges can, and sometimes do, prohibit a
fact that every word we put into a discovery response party from offering an exhibit or calling a witness if
has the potential to come flying back at us and blow proper disclosure has not been made. The problem
a hole in our case. How, then, should we approach is, of course, that witness and exhibit interrogato-
the problem of answering questions that call for ries are usually served in the early stages of the
“bad” facts? Here are a few suggestions: case, at a time when we are still investigating and
■ As a general rule, volunteer nothing without a have no idea of even who all the witnesses are and
compelling reason to do so. When you are writ- what documents exist, much less which ones we
ing a discovery response, you have no idea will want to use at trial.
what future directions the case may take. A bit The key to responding to witness and exhibit in-
of information that now seems utterly innocent terrogatories is to have a clear understanding of
may turn out to be the torpedo that sinks your when and how often interrogatory answers must be
case later on. Answer what the question asks, supplemented. Unfortunately, supplementation rules
and only what the question asks—then stop. vary considerably from one jurisdiction to another,
and depend in part on judges’ attitudes and local cus- less answer to support a motion for summary judg-
toms. Your instructor will inform you of the accepted ment. Consider the following response:
practice in your locality.
Example of how not to respond:
“Defendant Collins’s key was found in plaintiff’s
Your Local Notes room.”
_________________________________________________ Analysis: This response is a time bomb
waiting to explode. As soon as defendant
_________________________________________________ becomes aware of the fact that the key found in
plaintiff’s room did not fit the door, defendant
will file a motion for summary judgment, using
The general strategy is this: plaintiff’s response as the centerpiece. This
response establishes, in effect, that plaintiff has
1. We answer the interrogatories as best we can no other facts to support the allegation about
when the answer is due, making it clear that the the key—the interrogatory asks for “each and
answer is not complete or final. every” fact, and this is all that plaintiff has
disclosed.
2. We determine a reasonable interval at which we Example of a better response: “Plaintiff
will review the answers for supplementation. In made sure the hotel room door was locked the
the absence of a specific rule, we will do this at last time that she entered the room before
least every 2 months. retiring, and checked again that the door was
3. We will docket the dates for reviewing the an- locked before she went to bed. Dr. Collins stated
to police investigating officers that he used the
swers on the office calendar so that we do not
key provided by the desk clerk to enter the
forget to do it. room.”
4. At the intervals chosen, we will analyze our an-
Interrogatories calling for disclosure of rebut-
swers in light of what we now know about the
tal evidence: One of the most exciting and satis-
case, and file supplemental answers to disclose
fying experiences in litigation is to catch an oppos-
any witnesses or exhibits in addition to those al-
ing witness telling a lie and have just the right piece
ready disclosed.
of evidence to prove it. Unfortunately, modern dis-
Example response: “At this early stage, covery rules make such moments uncommon. All
plaintiff cannot make a final determination of too often, we are required to disclose that right
which witnesses she will call at trial or of the piece of evidence, and the opposing attorney will
persons whose testimony will be used herein. As have plenty of opportunity to coach the witness in
best plaintiff can determine at present, plaintiff advance. When we have evidence that we think has
will likely call the following witnesses: plaintiff
great “ambush potential,” is there anything we can
Shannon Martin; defendant Arthur Collins;
Arnold Trevayne; Detective Sgt. Marnell, Las do to hold it back?
Vegas Police Dept. Plaintiff’s address and The discovery rules in some jurisdictions pro-
telephone number are [list them]; plaintiff does vide a procedure whereby evidence intended only
not have the addresses and telephone numbers for rebuttal can be filed with the court in a sealed
of the other individuals named. Plaintiff will call envelope and not disclosed until it is used. Your in-
other witnesses at trial as appropriate, based on structor will inform you of whether any such rules
the outcome of investigation and discovery.” apply in the courts of your locality.
Usually, the best strategy is to try to schedule
Interrogatories calling for the factual basis of al-
your discovery in such a way that you can take a
legations: Many litigators routinely submit a se-
deposition or statement from the witness whom
ries of interrogatories asking for the factual basis of
you expect to lie before answers are due to any in-
each allegation of the complaint or answer.
terrogatories that would require you to turn over
Example interrogatory (By defendant Park the evidence that you intend to use against the
Hotels Group to Shannon): “With respect to the witness.
allegation made in paragraph 6 of plaintiff’s
complaint that defendant Arthur Collins entered
plaintiff’s hotel room using a key provided by
Banbury Park Hotel, state each and every fact Your Local Notes
and identify each and every document
_________________________________________________
supporting such allegation.”
_________________________________________________
“Factual basis” allegations are potentially trou-
blesome because the opposing party can use a care-
Date, Signature, Not only that, the answers must be given “under
Step 7 and Verification oath”; see FRCP, Rule 33(b)(1). This makes the an-
swers subject to the penalties for perjury. In practice,
Answers to interrogatories are not just a court pa- the oath consists of a paragraph reciting that the an-
per—they are also the equivalent of testimony by a swers are given under oath; the signer’s signature is
witness. You might expect that something more then notarized. Mechanically, where and how the
than an attorney’s signature would be required, and oath paragraph appears in the document varies con-
you would be right. siderably with locality; when in doubt, use answers
According to FRCP, Rule 33(b)(2), “The answers prepared by other local practitioners as a guide. The
are to be signed by the person making them, and fact that answers to interrogatories are given “under
the objections signed by the attorney making oath” raises some strategic issues (see sidebar).
them.” In those simple words, however, lurk a few
complications. Your Local Notes
First of all, who is the “person making” the an- _________________________________________________
swers? Does this rule mean that, for example, a para-
legal who researches and drafts answers to inter- _________________________________________________
rogatories should sign them? What if the answers
are on behalf of a corporation, and a number of peo-
ple contribute information—must they all sign? What if your client is a corporation or other en-
In general, the “person making” the answers is tity—then who signs? FRCP, Rule 33(a), offers some
the party to whom the questions were directed. We guidance: “If the party served is a public or private
know this because FRCP, Rule 33(a), states that inter- corporation or a partnership or association or gov-
rogatories are to be “answered by the party served.” ernmental agency,” the answers are to be signed
(Recall that interrogatories can be served only on “by an officer or agent, who shall furnish such in-
someone who is a party to the suit.) Therefore, if your formation as is available to the party.”
client is an individual, he or she must sign the an- Usually, when you represent a corporation, a
swers, even if, as is usually the case, the answers have contact person within the organization is given the
actually been drafted by someone else (such as you). responsibility of acting for the entity in dealings with
SIDEBAR
Be Careful What You Let Your Client Swear To
Because your client has signed them “under form of oath is required, so instead of the traditional,
oath,” answers to interrogatories make great ammu- flowery oath, we would prefer one that accurately re-
nition for cross-examining your client when he or she flects the way in which answers to interrogatories are
takes the witness stand to testify at trial. Let your prepared in the real world:
client say one word that contradicts anything in the Example of how not to “answer under oath”:
answers to interrogatories, and you may be sure that “John Doe, being first duly sworn, upon his oath de-
your opponent will confront him with the conflicting poses and says: That he has read the foregoing an-
answer—and the sworn signature. This may seem un- swers to interrogatories and the same are true and
fair, since everyone knows that it is the lawyers and correct and made on the basis of his personal
paralegals, not the clients, who write answers to in- knowledge.”
terrogatories, but it is the reality.
Analysis: This oath leaves no wiggle room. These
It is absolutely essential, therefore, that your client are John Doe’s answers and he is stuck with them.
read every word of the answers before signing; better Example of a better oath paragraph: “John
yet, if possible, the lawyer or paralegal should go Doe, being first duly sworn, upon his oath deposes
through the answers sentence by sentence with the and says: That the foregoing answers to interroga-
client before signing. Answers to interrogatories are tories have been prepared by his attorney based
not one of those documents that the client can safely upon information provided by him and others from
skim or sign without reading. sources that he believes to be trustworthy, and are
Also consider carefully the wording of the oath that true to the best of his present knowledge, recollec-
your client is signing—in federal court, no particular tion, information, and belief.”
the corporation’s lawyers. Sometimes, that person is tice reciting that you have served answers to inter-
the one who provides the information needed for an- rogatories and then file and serve the notice.
swering interrogatories; other times, the corpora-
tion’s contact person will put you in touch with oth-
ers in the organization who are more familiar with Your Local Notes
the facts needed. So who signs? The rule requires the
_________________________________________________
signer to “furnish such information as is available” to
the corporate party, but it does not prevent the _________________________________________________
signer from assembling that information from other
sources, which will often be necessary, since no sin-
gle person may have all the information required. We
Review and Supplement
would prefer the signer not be someone that our op- Step 9 as Required
ponent can paint as an important witness; generally,
therefore, the signer should not be a high officer of
the corporation, nor someone who was directly in- When we have filed and served the answers to in-
volved in the dispute that gave rise to the lawsuit. terrogatories, is our job over? Not quite. Answers
What about the attorney? Must the attorney that seem correct today may look wrong tomorrow.
also sign? In practice, it has long been customary It is wise to docket the answers for periodic review
for attorneys to sign answers to interrogatories in to consider whether they should be supplemented.
the same way as they would sign any other court In federal court, FRCP, Rule 26(e)(2), provides:
paper. In federal court, after the 1993 amendment to
A party is under a duty seasonably to amend
Rule 11 [see FRCP, Rule 11(d)], there is no express a prior response to an interrogatory . . . if the
requirement that the attorney sign answers to in- party learns that the response is in some
terrogatories [although the attorney must sign any material respect incomplete or incorrect and if
objections, see FRCP, Rule 33(b)(1)]. Many state the additional or corrective information has not
courts still have rules patterned after the former otherwise been made known to the other parties
practice under Rule 11, and require attorneys to during the discovery process or in writing.
sign all court papers. Your instructor will inform
Therefore, if we obtain additional information later,
you of the preferred practice in your locality.
we must amend or supplement our answers. We may
also decide to supplement voluntarily, even when we
Your Local Notes
are not technically required to. Keeping in mind that
_________________________________________________ our opponent can read our answers to the jury,
_________________________________________________
amending or supplementing gives us a way to “fix”
answers that, in the light of subsequent develop-
ments, we wish that we had worded differently. Facts
and perceptions change as a lawsuit moves forward,
CONCLUDING STEPS and it is worthwhile to revisit past discovery re-
After we have drafted answers or objections to each sponses periodically and fine-tune them if necessary.
question, and have rewritten and revised them un-
til we are satisfied with our work, we are ready to Your Local Notes
send them out.
_________________________________________________
_________________________________________________
Step 8 Filing and Service
As we have seen, many courts have joined a growing

trend and adopted rules prohibiting parties from fil- Answering Interrogatories:
ing routine discovery papers with the clerk of the Learning by Example
court. Your instructor will inform you of the applic-
able rules for the courts of your locality. If you are in Now we will put into practice the ideas that we have
a traditional type jurisdiction, you file and serve an- just explored, by drafting answers to the interrogato-
swers to interrogatories in the same way that you ries that we prepared in Workshop 10. We will as-
would file and serve any other court paper. See sume that Shannon’s attorney, Allen Porter, served
Workshop 6 for details. If your court does not allow the interrogatories on defendant Park Hotels Group
filing of discovery papers, you should prepare a no- by mailing them to Gail Stoddard, attorney for Park
SIDEBAR
Requests for Production of Documents
The task of responding to an FRCP, Rule 34, re- necessary to respond to a document request may com-
quest for production of documents is in most ways sim- prise many file boxes of paper. The cost of copying
ilar to that of preparing answers to interrogatories. would be prohibitive, and even if we could turn over
We begin by docketing the response date, reviewing copies, we would prefer not to give our opponent un-
and analyzing each request, and making the neces- limited time in which to review them. The usual solu-
sary inquiries to find out where the requested docu- tion is that we first go through the boxes of documents
ments are kept. carefully ourselves, to make sure no surprises are lurk-
The Formal Response ing, and then we put them in an empty conference
room or other neutral location and let opposing coun-
The response itself is somewhat different from a
sel examine them there and make whatever copies are
set of answers to interrogatories. As with all discovery
desired. Either the responding attorney can provide ac-
responses, it is in the form of a court paper, with cap-
cess to a copying machine, or the reviewing attorney
tion, signature lines, and certificate of service. The
can rent a copying machine and have it temporarily in-
body of the response, however, takes the numbered re-
stalled at the place where the documents are being re-
quests one by one, with a separate paragraph for each
viewed. Usually, attorneys are able to agree on reason-
item. For each numbered item in the request, the re-
able procedures for reviewing and copying documents;
sponse either states an objection or states that the
if not, the judge can enter appropriate orders.
documents will be provided. Responses to requests for
production are therefore usually fairly short. Making a Record of What Was Produced
Producing the Documents A problem arises when the documents produced
are voluminous—how do you prove exactly what you
Note that the documents requested do not form a
produced? If we have turned over photocopies, we can
part of the response itself—they are produced sepa-
keep a set of copies for ourselves, but if we have turned
rately. FRCP, Rule 34(b), states that “The request shall
our opponent loose in a room with a hundred boxes of
specify a reasonable time, place, and manner of making
files, how do we prove what we turned over? We use
the inspection. . . . ” In practice, documents are almost
the response itself to make a record. Instead of re-
never produced in the manner specified in the request.
sponding merely “Item 4: Produced,” we will respond,
If the quantity of documents is small, the respond- “Item 4: Produced six boxes of records comprising all
ing attorney simply sends photocopies with the written maintenance department work orders for January 1,
response. In complex cases, however, the documents 1998, through March 15, 2000.”
SIDEBAR
Responding to Requests for Admissions
In form and appearance, the response to a set of a request for admission should be a single word: “ad-
requests for admissions is nearly identical to a set of mit” or “deny.” Occasionally, more is required: FRCP,
answers to interrogatories (and may even be part of Rule 36, provides that “when good faith requires that a
the same document if the interrogatories and requests party qualify an answer or deny only a part of the mat-
for admissions have been combined in one document). ter of which an admission is requested, the party shall
Responding to a request for admission is much like an- specify so much of it as is true and qualify or deny the re-
swering an interrogatory except that the answer must mainder.” Usually, however, long-winded responses
admit or deny the assertion made in the request. should be avoided. We should never admit anything un-
The Form of Admissions and Denials less we are reasonably certain that the admission can-
not harm our case; if we are in doubt, it is best to deny.
In a request for admissions, the individual items to
be admitted or denied are set out in numbered para- If in Doubt, Deny
graphs. As with interrogatories, the response is entered You might wonder why anyone would ever re-
in the space below each request. Usually, the answer to spond to a request for admission with anything but a
SIDEBAR
Responding to Requests for Admissions, continued
denial—why not make the opposing party prove tionable. In general, requests for admissions are sub-
everything the hard way? The answer is that if we ject to the same kinds of objections as are interroga-
deny a request for admission and force our opponent tories. As with answers to interrogatories, our oppo-
to prove the point, FRCP, Rule 37(c)(2), allows the nent can read our admissions to the jury, so we must
judge to make us pay the costs incurred by our oppo- be especially watchful for admissions that are mis-
nent in doing so. In theory, the judge is required to do leading or could be misinterpreted.
so unless we had “reasonable grounds” for our denial. A Timely Response Is Critical
In practice, however, awards of costs are uncommon,
One important way in which requests for admis-
and anyway we would rather risk having to pay a few
sions differ from interrogatories is that requests for ad-
of our opponent’s costs than risk losing the whole
missions are automatically deemed admitted if not de-
case. We do not mean to suggest that you deny re-
nied within the 30-day response time provided by FRCP,
quests when you have no basis for doing so; but never
Rule 36. In other words, if you are late with your re-
give away an admission on an important issue unless
sponse, you have just admitted every request in the set.
you are sure that the issue cannot be won.
In practice, judges can sometimes be persuaded to give
Objecting to Requests for Admission you another chance to respond, but—trust us—you do
As with interrogatories, we should always be on not want to bet your career that the judge will be feel-
the lookout for requests for admissions that are objec- ing lenient. File on time—always.
Hotels Group, on May 2, 2000. Since we are dealing 33rd day, which is June 4. June 4, 2000, is a Sunday,
with a hypothetical fact situation, we will simply in- so the answers are due on the following Monday,
vent the facts needed for our answers as we go along. June 5 [see FRCP, Rule 6(a)]. We note the due date
in our personal calendar.
PREPARATORY STEPS
Analyze the Entire Request
Step 2 Question by Question
Step 1 Docket Response Due Date
Next we sit down with the interrogatories and our
laptop computer (or a legal pad) and start read-
When Gail Stoddard receives the interrogatories in ing, analyzing, and taking notes. Here is an exam-
the morning mail on Thursday, May 4, 2000, she ple of what our notes might look like when we are
notes that, according to the attached certificate of done:
service, Allen Porter mailed them to her on May 2.
The firm’s docketing clerk has already computed Int. No. 1: Documents only. Call Banbury
Park maintenance supervisor and find out how
and docketed the due date for answers—June 5—
records are kept. Find out if any maintenance
and entered it in the firm’s central calendar, as Gail done by outside contractors, if so by whom.
can tell from the docketing stamp on the first page Interrogatory seems overbroad in that it asks
of the document. about all guest room doors, not just the one in
Gail assigns us the task of preparing draft an- issue. Review records first, if harmless turn
swers. Careful paralegals that we are, we begin by them over, otherwise consider objecting.
double-checking the computation of the due date.
Int. No. 2: Witnesses to incident, statements.
Consulting FRCP, Rule 33(b)(3), we see that we are
Check police report, review case file for any
required to serve answers within 30 days. Applying references to witnesses. Docket for
the principles that we learned in Workshop 7, we supplementation check. Statements—object,
add 3 days because the interrogatories were work product. “Vicinity” is vague; consider
served on us by mail [see FRCP, Rule 6(e)], giving objecting.
us a total of 33 days. We do not count the day of ser- Int. No. 3: Affirmative defenses. Check issues
vice, May 2 [see FRCP, Rule 6(a)]; we start counting outline for factual basis. Can flesh out
on May 3 and continue counting until we reach the contributory negligence now, rest are probably
inapplicable but note investigation not Because we analyzed and took notes on the en-
complete. tire set of interrogatories before trying to gather in-
Int. No. 4: Facts of incident. Review notes of formation, we will not need to keep interrupting our
interview with desk clerk, review police report. supervising attorney with repeated questions; in-
Note investigation not complete, docket for stead, we can meet with her once to go over our
supplementation check. notes. We will, of course, add to our notes any sug-
Int. No. 5: Trial witnesses. Assemble from
gestions that our supervising attorney may offer.
police report and issues outline, note not
complete, docket for supplementation check. Assuming she approves, we can then begin con-
RFA No. 1: Subject matter jurisdiction. tacting the appropriate hotel employees to gather
Based on earlier research, appears no viable the information that we need.
issue. Will probably admit; check with Gail. It is important to do this in an organized and
Int. No. 6: Facts re RFA No. 1. No need to professional way. When we interact with employees
answer assuming we admit RFA 1. of our client, we are acting as a representative of
our law firm, and everything we do reflects on the
Request Information from Client reputation of the firm. We prepare thoroughly be-
Step 3 and Others as Necessary fore any client contact. Often, we may find that the
person to whom we are speaking does not have the
When we have gone through the entire set of in- information that we need, but can suggest someone
terrogatories and analyzed each question, we can else to try. We pursue each lead as necessary, tak-
then easily determine from our notes what further ing notes all along the way.
information we need and whom we need to con- As we gather information, we begin incorporat-
tact to get it. Usually, a paralegal’s first step after ing it into draft answers. By the time the due date
reading and analyzing the interrogatories should nears, we should be well on our way to a final draft.
be to consult with the supervising attorney. Some
questions will raise issues on which we need guid- DRAFTING STEPS
ance; others will require information from the
We use Steps 4 through 7 to prepare the document,
client, and we do not contact the client without
which is shown in Figure W11–1.
prior permission.
Figure W11–1 Sample Answers

DISTRICT OF ARIZONA

Plaintiff, ) NO. CV98 -01456 PHX JL
v. ) PLAINTIFF’S FIRST SET OF
) INTERROGATORIES AND REQUESTS
) FOR ADMISSIONS TO
) DEFENDANT PARK HOTELS
) GROUP, INC. AND ANSWERS THERETO
PARK HOTELS GROUP, INC., )
a Delaware corporation; )
Defendants. )
_______________________________________________ )
Plaintiff hereby submits interrogatories and requests for admission to defendant Park Hotels Group,
pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to be answered in
writing and under oath within 30 days from the date of service hereof.
continued
Figure W11–1 Sample Answers, continued
A. All information is to be divulged which is in the possession of the individual or corporate

party, his attorney, investigators, agents, employees, or other representatives of the named party and
his attorney.
B. A “medical practitioner” as used in these interrogatories is meant to include any medical
doctor, osteopathic physician, podiatrist, doctor of chiropractic, naturopathic physician, or other
person who performs any form of healing art.
C. Where an individual interrogatory calls for an answer which involves more than one part,
each part of the answer should be clearly set out so that it is understandable.
D. Where the term “you,” “plaintiff,” or “defendant” are used, they are meant to include every
individual part and separate answers should be given for each person named as a party, if requested.
E. Where the terms “accident” or “the accident” are used, they are meant to mean the incident
which is the basis of the lawsuit, unless otherwise specified.
F. A space has been provided on the Form of Interrogatories for your answer. Four (4) copies are
served herewith. Complete all copies and serve a copy upon each separate counsel representation,
retaining a copy in your file. Attach a verification and certificate of mailing.
To the extent that the foregoing “Instructions and Definitions” purport to impose burdens or
obligations beyond those imposed by the applicable rules of civil procedure, they are objected to, and
will not be complied with.
Interrogatory No. 1
Identify and describe all documents recording or memorializing and repairs, maintenance, or
installation or replacement of parts or components, relating to the entrance door of any guest room at
Banbury Park Hotel or to any lock, strike, hinge, door closer, or other hardware attached to or
associated with any such door, at any time after January 1, 1997.
The answer to this interrogatory may be derived or ascertained from business records of Park Hotels
Group, specifically maintenance work order files for Banbury Park Hotel. These records are located in
the main file storage room at Banbury Park Hotel, Las Vegas, Nevada. Plaintiff will be afforded a
reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations,
abstracts, or summaries thereof upon reasonable request by plaintiff, at a time and place to be
agreed upon between plaintiff and defendant.
Interrogatory No. 2
With respect to each and every person who witnessed or was present in the vicinity of the events
described in plaintiff’s complaint occurring at Banbury Park Hotel on the night of February 5, 1996,
state the name, address, and telephone number of each such person, state the substance of what such
person observed, and identify each and every written or recorded statement given by such person.
Defendant objects to this interrogatory in that the word “vicinity” is vague, and in that it purports to
call for statements of witnesses that would constitute work product of defendant’s attorneys.
For plaintiff’s information, and interpreting “vicinity” as referring to Room 407 and the hall area
immediately adjacent to it, to the best of defendant’s present information and belief, the persons
present were plaintiff and defendant Arthur Collins. Defendant has not taken statements from either.
Interrogatory No. 3
Separately with respect to each affirmative defense enumerated in paragraph 12 of defendant Park
Hotels Group’s answer herein, state the basis of each such defense and state each and every fact upon
which each such defense is based.
As noted therein, the purpose of paragraph 12 of defendant’s answer was to preserve the listed
affirmative defenses pending a full investigation of the facts. Such investigation is not yet complete.
continued
To the best of defendant’s present information and belief, the basis of the defense of contributory
negligence is that plaintiff negligently failed to lock the door to Room 407 and/or negligently
admitted defendant Collins to her room; plaintiff also negligently failed to secure the locking chain.
These omissions on plaintiff’s part were a contributing cause of the events leading to her injury.
Interrogatory No. 4
Describe in detail what you contend were the true facts surrounding the events of the night of February 5,
1996, at Banbury Park Hotel leading up to plaintiff’s injury.
To the best of defendant’s present information and belief, and keeping in mind that investigation is far
from complete at this early stage of this lawsuit, the facts were as follows: Plaintiff, who was staying in
room 407, either failed to lock the room door or unlocked and opened the room door. Defendant
Collins entered the room. Subsequently, plaintiff shot Collins and Collins broke plaintiff’s finger.
Interrogatory No. 5
With respect to each witness, including expert witnesses, that you will or may call to testify at the trial of
this matter, state the name, address, and telephone number of each such witness, and, separately for
each such witness, state the substance of what you anticipate the testimony of each such witness to be.
At this early stage, defendant cannot make a final determination of which witnesses will be called at
trial. As best defendant can determine at present, defendant’s witnesses and the substance of their
testimony will include: Plaintiff Shannon Martin, address and telephone number unknown. Ms.
Martin will be called to testify concerning the events described in plaintiff’s complaint. Defendant
Arthur Collins, address and telephone number unknown. Dr. Collins will be called to testify
concerning the events in room 407 and specifically the manner by which he gained entry to said
room. Detective Sgt. Janet Marnell, Las Vegas Police Department, address and telephone number
unknown. Detective Marnell will be called to testify concerning the results of the police investigation
into the events in room 407. Arnold Trevayne, Banbury Park Hotel, Las Vegas, Nevada. Mr. Trevayne
will be called to testify concerning his observations relating to defendant Collins picking up his room
key, his observations of plaintiff following the incident, and his acts in summoning emergency
assistance. Donald Armstrong, maintenance supervisor, Banbury Park Hotel, Las Vegas, Nevada. Mr.
Armstrong will testify concerning the condition and operability of the room 407 door lock.
Defendant anticipates retaining one or more medical experts to examine plaintiff and render an
opinion regarding her injuries, but has not yet done so. Defendant anticipates retaining one or more
experts to testify concerning the condition and operation of the room 407 door lock, but has not yet
done so. Defendant will call other witnesses whose identities are revealed as discovery proceeds.
Admit that this court has valid subject matter jurisdiction of this matter under the provisions of 28
U.S.C. §1332.
Admit.
Interrogatory No. 6
In the event that you deny the foregoing Request For Admission No. 1, state each and every fact upon
which such denial is based, and state each and every respect in which you contend that the
jurisdictional requirements of 28 U.S.C. §1332 are not met in this action.
Not applicable.
DATED this _____ day of _______________, 20 ___.
Gail Stoddard
Attorneys for defendant Park
Hotels Group
continued
STATE OF ARIZONA )
) ss.
County of Maricopa )
The undersigned, being first duly sworn, upon his oath deposes and says: “That he is an officer or
agent of defendant Park Hotels Group, Inc. designated by said corporation to answer the foregoing
interrogatories; that the foregoing answers to interrogatories have been prepared by defendant’s
attorney based upon information provided by him and others from sources that he believes to be
trustworthy, and are true to the best of his present knowledge, recollection, information, and belief.”
______________________________________
Ronald M. Jansen
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this 5th day of June, 2000.
_____________________________________
Notary Public
CONCLUDING STEPS two months in the future—to remind ourselves to do

so. At that time, we will calendar a reminder to do
another review a few months later, and continue to
Step 8 Filing and Service check our answers for accuracy at 2- or 3-month in-
tervals until the case goes to trial.
We consult the local rules of the U.S. District Court
for the District of Arizona and find that Rule
1.2(a)(2) provides that “Unless ordered by the Answering Interrogatories:
Court . . . interrogatories and answers thereto . . . Learning by Doing
shall not be filed with the Court, except that a ‘No-
tice of Service’ of the foregoing papers on opposing Your task for this workshop is to answer a set of in-
counsel shall be filed with the Court. . . .” There- terrogatories served on Park Hotels Group by Dr.
fore, we mail a copy of the answers to each oppos- Arthur Collins’s attorney. Assume that Dr. Collins
ing attorney but do not file the answers with the has made a cross-claim against Park Hotels Group
clerk of the court. We prepare a notice of service alleging that the hotel was negligent and is liable for
reciting that we have served the answers by mail, his injuries. Assume that the interrogatories shown
and we include a copy of the notice in the mailing in Figure W11–2 arrived by mail on the second
to each opposing attorney. We file a copy of the no- Wednesday of February of the current year, and as-
tice of service with the clerk of the court. sume that the action is pending in the U.S. District
Court having jurisdiction in your locality.
Review and Supplement
Step 9 as Required EXERCISES
When we first read and analyzed the interrogatories, In carrying out this assignment, you should follow
we noted that several of the answers would need to the step-by-step formula described in this workshop.
be reviewed later to see whether supplementation 1. Determine the last day on which the answers
would be required. We make a notation in our per- can be filed and still comply with the rules, and
sonal calendar for August 15, 2000—approximately date your answers for that day.
Figure W11–2 Sample Interrogatories

DISTRICT OF ARIZONA

Plaintiff, ) NO. CV98-01456 PHX JL
v. )
) INTERROGATORIES AND
) REQUESTS FOR ADMISSIONS
) TO DEFENDANT PARK HOTELS
) GROUP, INC.
PARK HOTELS GROUP, INC., a Delaware )
corporation; )
Defendants. )
_______________________________________________ )
Defendant Arthur Collins hereby submits interrogatories and requests for admission to defendant
Park Hotels Group, pursuant to the provisions of Rules 33 and 36, Federal Rules of Civil Procedure, to
be answered in writing and under oath within 30 days from the date of service hereof.
[insert instructions and definitions]

Interrogatory No. 1
With respect to each and every employee of Park Hotels Group, Inc. or Banbury Park Hotel who had, at
the time of the incident described in plaintiff’s complaint, any responsibilities involving maintenance,
repair, record keeping, or key issuance or changing with respect to any guest room door, door
hardware or lock, state the name, address, and telephone number of each such person and the nature
of each such person’s duties.
Interrogatory No. 2
With respect to each and every person having information concerning the events described in plaintiff’s
complaint occurring at Banbury Park Hotel on the night of February 5, 1996, state the name, address,
and telephone number of each such person, state the substance of the information possessed by each
such person, and identify each and every written or recorded statement given by such person.
Interrogatory No. 3
State how you contend that, immediately prior to the incident described in plaintiff’s complaint, the
door of Room 407 was able to be opened using the key provided by the desk clerk.
Admit that the desk clerk employed by defendant Park Hotels Group, Inc. issued a room key to
defendant Arthur Collins immediately prior to the incident described in plaintiff’s complaint, and that
said room key was able to operate the door lock of Room 407.
Interrogatory No. 4
In the event that you deny the foregoing Request for Admission No. 1, state each and every fact upon
which such denial is based.
DATED this _____ day of _______________, 20 ___.
__________________________________________
2. In answering the interrogatories, you will need to (At your instructor’s option, your instructor
gather facts. Your sources of facts are as follows: may take the role of Mr. Shapiro, or may assign
that role to a student; then you can write
a. The facts related in the Shannon’s Ordeal
memos to the fictitious Mr. Shapiro with your
hypothetical;
requests, if any, for additional facts, and the fic-
b. The facts related in the Learning by Doing
titious Mr. Shapiro can respond with additional
exercises in Workshop 12;
hypothetical facts as appropriate.)
c. Your contact person at Park Hotels Group,
Inc., Mr. Leonard Shapiro, vice president. His 3. When you have completed the answers to in-
home address and phone are: 1429 Rustic Dr., terrogatories, determine whether, under the
Asbury Park, NJ 07712, phone: 732-555-3983. rules of the U.S. District having jurisdiction in
The address and telephone of Mr. Shapiro’s of- your locality, the answers would be filed with
fice (the Park Hotels Group, Inc. main office) is the clerk of the court. If so, prepare them as ap-
3 Municipal Plaza, Asbury Park, NJ 07712, propriate for filing; if not, prepare a suitable no-
phone: 732-555-2929, extension 903. tice for filing.
PRACTICE POINTERS
Copying Documents
When responding to a request for production of documents, the attorney
must decide whether to produce the originals or copies. Although producing
originals saves the cost of making copies, most attorneys choose to provide
copies to prevent alterations from being made, to ensure that an original doc-
ument is not lost, and to avoid the confusion that results when documents get
out of order.
Before copies are made, each document should be stamped to show that
they have been produced by your law firm. Such stamping helps avoid confu-
sion when multiple parties are involved. Documents that are confidential
should be clearly marked “Confidential.” If large numbers of copies are to be
made, they should be organized in cardboard boxes and clearly labeled show-
ing the range of numbers of documents contained in each box. Once the
copies are made, the originals should be placed back in the box in the same
order in which they were removed.
Some legal assistants complain that copywork is “busy work” and find
ways to delegate this task to others. Consider this: Failure to produce read-
able copies can create problems later on at trial or can lead to unnecessary
misunderstandings and strained relations with opposing counsel. If the per-
son doing the copying is unfamiliar with the case and the documents being
copied, she can easily overlook two pieces of paper sticking together so that
one of them does not get copied or she can fail to notice that a paper is im-
properly seated in the feeder so that only part of the page is copied or she can
inadvertently make multiple sets of copies, some of which are missing a page.
These errors not only create the appearance of unprofessionalism but they
can result in confusion and tension at later stages in the litigation process.
If you want your attorney to learn she can rely on you, make sure you carry
out every task you are assigned diligently and conscientiously. The job of copy-
ing documents may be tedious but it is certainly not trivial. Rather than look-
ing for ways to avoid time before the copy machine, consider ways you can
more efficiently and accurately carry out this important responsibility.
TECHNO TIP
Answering a set of interrogatories is not so that you can take it with you on out-
a task that lends itself easily to the “nor- of-the-office information-gathering ex-
mal” way of writing, in which you start cursions—the task is much easier. You
at the beginning and keep writing until should be able to obtain the interroga-
you get to the end. One question may tories in the form of a word processor
require only a phone call to your client file, either by asking opposing counsel
to get the necessary information; the for an electronic copy or, if necessary, by
next may require you to search through scanning the interrogatories using a
a roomful of files located in another scanner and converting the resulting im-
state. age to a word processing file using opti-
The easiest way to handle the job, cal character recognition software.
therefore, is to have some means by With the interrogatories in a word
which you can add information to indi- processing file, it becomes a simple
vidual answers as you obtain it. Before matter to make notes, record contacts,
personal computers arrived on the law and eventually draft answers, simply by
office scene, this usually meant setting typing the pertinent information in af-
up a notebook, cutting and pasting one ter the question to which it pertains. In
interrogatory on each page, and keep- this way, you will always have a current
ing notes on each question. With a com- and complete record of the status of
puter—preferably a notebook or laptop your work on each question.
FORMS FILE

* Answers to the sample interrogatories you collected for your
forms file from Workshop 10
* Answers to the sample requests for admissions you collected
for your forms file from Workshop 10
* Checklist of possible objections to interrogatories
Disclosure Rules
and Limitations
on Discovery
INTRODUCTION: REENGINEERING
WORKSHOP
12
based discovery systems is the disclosure statement.
THE DISCOVERY PROCESS The disclosure statement is a document that each
party is required to prepare and serve on opposing
Many judges and legal scholars today would say parties shortly after the lawsuit commences. The
that traditional discovery mechanisms are seriously rules require each party’s disclosure statement to
flawed. The discovery tools that we have been contain certain specific categories of information
studying up to now are request-based, that is, a liti- about that party’s case. Litigants are required to up-
gant need not—and should not—tell an opponent date and supplement their disclosure statements pe-
anything unless the opponent specifically requests riodically as new information becomes available.
it. The duty of the responding party to provide in- The main focus of this workshop is the task of
formation depends mainly on whether the request- preparing a disclosure statement. To understand
ing party asked the right questions in the right way. where the disclosure statement fits in the overall
Traditional discovery is expensive. Interrogato- scheme of things, see the sidebar.
ries, depositions, and requests for production are As we have pointed out in detail elsewhere (see
deliberately used to inundate one’s opponent with Introduction to the Discovery Workshops), disclo-
paperwork and drive up costs. (If you have com- sure rules vary greatly from one jurisdiction to an-
pleted Workshops 9, 10, and 11, it should be obvi- other. Some jurisdictions have embraced the disclo-
ous to you that the discovery process offers plenty sure paradigm almost completely, and require
of opportunity for procedural gamesmanship.) disclosure of everything about each side’s case, in-
Judges find themselves spending too much time ref- cluding legal theories and detailed factual descrip-
ereeing arguments about discovery and not enough tions. Others, including the federal courts, have
deciding cases. taken a more tentative approach, requiring disclo-
sure of the identities of witnesses and exhibits, com-
MANDATORY DISCLOSURE putations of damages, and reports of expert wit-
nesses, but leaving the parties to flesh out the
Therefore, many courts are gradually moving away details using the traditional discovery tools. Even
from the traditional discovery mechanisms and given two jurisdictions with identical disclosure
looking for ways to force litigants to be more coop- rules, judges may have different ideas about how
erative in conducting discovery. Each of the oppos- much disclosure is required. Disclosure rules de-
ing attorneys certainly knows which facts are likely scribe the subject matter for disclosure in broad
to be of greatest interest to his opponent. So, in- categories; the level of detail expected depends on
stead of making attorneys try to guess the right the judge and on local customs.
questions to ask, why not simply order both sides to In this workshop, we base our discussion on the
disclose everything, and skip the tedious and expen- disclosure rules that were added to the Federal Rules
sive procedural games? of Civil Procedure by the 1993 amendments. Even in
You may doubt that the solution could be that the federal courts, adherence to these rules is far from
easy, and you would be right. Changing the discov- uniform, because it is up to each district to decide
ery rules does not suddenly change opposing attor- whether to adopt the disclosure amendments in
neys from tenacious adversaries into helpful allies whole, in part, or not at all. In state court, the variation
in the Quest for Truth (and if it did, the clients would is even greater; you would be hard pressed to find any
look for new attorneys!). Skeptics would say that two states with identical disclosure rules. Your in-
mandating disclosure does not eliminate the structor will tell you where to find the disclosure
game—it merely adds a few new plays. Instead of rules, if any, for the courts of your locality, and point
skirmishing over the interpretation of an oppo- out any important variations from the federal scheme.
nent’s questions, litigators argue over the interpre-
tation of the disclosure rules.
Your Local Notes
Whatever your philosophical view is about how
the discovery process might best be made to function, _________________________________________________
if you practice in a jurisdiction that has adopted dis- _________________________________________________
closure-based discovery, you need to learn to use the
tools of that system. The centerpiece of disclosure-
436 WORKSHOP 12 Disclosure Rules and Limitations on Discovery
SIDEBAR
How the Disclosure Statement Fits
into the Trial Preparation Process
In federal district court, the disclosure statement 4. FRCP, Rule 26(a)(1), disclosure statements.
comprises one step in a larger process designed to en- Each side’s disclosure statement is due 10 days af-
sure that every case is fully ready for trial by the time ter the discovery planning meeting. Since the
the scheduled trial date arrives. Here are the main planning meeting is to be held no later than 14
steps in that process, as outlined by FRCP, Rules 26(f) days before the scheduling conference, this
and 16(b): means that the disclosure statements will be due
a few days before the scheduling conference. The
1. Order setting scheduling conference. As a prac-
intent of the rules is to require both sides to dis-
tical matter, the event that triggers the disclosure
close at the same time, so as not to give one side
process to begin is the issuance of an order by the
the advantage of seeing the other’s disclosure
court setting a date for a scheduling conference
statement first. What is the disclosure statement
(see item 4). In most federal courts, this order issues
supposed to look like? FRCP, Rule 26, is not very
automatically and, typically, but depending on the
specific, preferring to leave the details to each in-
court’s backlog, the initial scheduling conference is
dividual court or judge. Rule 26(a) (4) merely re-
set at some point 3 to 6 months after issue is joined
quires that the disclosure statement be in writing,
(i.e., the complaint and answer are filed).
signed in accordance with Rule 26(g), and filed
2. Meeting of attorneys. FRCP, Rule 26(f), requires with the court.
the attorneys for all parties to the lawsuit to meet
5. FRCP, Rule 16(b), scheduling conference. At the
and confer for the purpose of agreeing on a dis-
scheduling conference, the judge reviews the pro-
covery plan. This meeting is to take place no later
posed schedule submitted by the attorneys, and
than 14 days before the scheduling conference
hears argument about any issues on which the at-
date set by the court. (This meeting is not the
torneys do not agree. After the scheduling confer-
scheduling conference. The scheduling conference
ence, the judge enters an order. If the process
takes place in court with the judge present. This
works as intended, the order that the judge enters
meeting is to prepare for the scheduling confer-
will closely follow the discovery plan submitted by
ence.) Ideally, the opposing attorneys will reach
the attorneys. (If not, the judge may send the at-
agreement on issues such as these:
torneys back for another try!)
■ What limits will be placed on the use of inter-
6. FRCP, Rule 26(a)(2), disclosure of expert wit-
rogatories and other discovery devices.
nesses. At some point after the Rule 26(a)(1) dis-
■ What documents need to be reviewed, and closure statement, at times usually set by the judge
when and where this will be done. in the scheduling order, each side must disclose de-
■ Which witnesses will need to be deposed, and tailed information about any expert witnesses who
when and where the depositions will take place. are expected to testify at the trial. Discovery relat-
■ Setting deadlines for the completion of the var- ing to expert witnesses is a somewhat complex
ious phases of discovery. topic that is beyond the scope of this introductory
text. For the basic requirements, see generally FRCP,
■ Setting deadlines for various required disclosures.
Rules 26(a)(2), 26(b)(4), and 26(e)(1).
■ Setting deadlines for filing motions, amending
pleadings, and other procedural matters; see 7. Supplementation of disclosure. The initial FRCP,
FRCP, Rule 16(b). Rule 26(a)(1), disclosure takes place early in the
case, usually before any other discovery is taken,
3. Report on discovery plan. After the meeting, so it is expected that neither side’s disclosure will
the attorneys for all parties are to jointly prepare be complete. The intended thrust of Rule 26 is that
a report to the court outlining the proposed dis- each party will supplement the initial disclosure
covery plan, and submit it to the court within 10 “at appropriate intervals.” (What intervals? Every
days after the meeting of attorneys; see FRCP, 60 days is a common requirement. Check the
Rule 26(f). scheduling order and/or local rules.) In this way,
WORKSHOP 12 Disclosure Rules and Limitations on Discovery 437
SIDEBAR
How the Disclosure Statement Fits
into the Trial Preparation Process continued
each side’s disclosure is brought up to date peri- 10. Pretrial order. At some point shortly before
odically as the case wends its way toward trial. trial, nearly all federal judges require the attor-
neys for both sides to get together and prepare a
8. Pretrial disclosure. Shortly before trial, FRCP,
document, often called a pretrial order (terminol-
Rule 26(a)(3), requires each side to make some
ogy may vary), that will be used as a kind of
specific additional disclosure about the witnesses
script for the conduct of the trial. The pretrial or-
and exhibits to be used at trial. How do we know
der typically names the witnesses that each side
when to do this? Often, the scheduling order spec-
will call, describes the testimony to be given by
ifies a deadline for Rule 26(a)(3) disclosure; if not,
each, lists the exhibits that each side will be al-
then the deadline is 30 days before trial; see FRCP,
lowed to introduce, specifies any known objec-
Rule 26(a)(3). The matters to be disclosed are
tions by each side, and describes the legal theo-
listed in Rule 26(a)(3):
ries that each side is advancing. You will not be
■ Names, addresses, and telephone numbers of able to find much information about pretrial or-
each expected trial witness; ders in the rules. FRCP, Rule 16, grants federal
■ Designation of any deposition testimony that judges broad power to enter pretrial orders, but
each party expects to present at trial in lieu of does not specify the contents of a pretrial order
live testimony by a witness; and nor the exact procedure for preparing one. Nor
■ Identification of each document or exhibit.
are local rules usually very informative on this
topic. The specifics of pretrial order procedure are
9. Disclosure of objections. Within 14 days after usually left up to individual judges. Some judges
the FRCP, Rule 26(3), pretrial disclosure, each side publish information about their required proce-
must file a list disclosing any known objections to dures on the Internet or elsewhere; others issue a
deposition testimony or exhibits. This is intended standard minute entry in each case describing
to give each side a chance to anticipate the their requirements. Your instructor will tell you
other’s objections and do any legal research nec- what the usual pretrial order practice is in the
essary to answer them. It is important to be thor- courts of your locality.
ough when disclosing objections, because any ob-
jections not disclosed are waived.
is not a very good substitute for a deposition of a wit-

Your Local Notes
ness, because it gives no opportunity to ask follow-
_________________________________________________ up questions or to observe demeanor. Nor is a dis-
closure statement a substitute for reviewing files of
_________________________________________________
documents in their original form. Nevertheless, one
of the main goals of disclosure-based discovery is to
reduce the need for interrogatories and depositions.
OTHER DISCOVERY REFORM Therefore, the discovery rules in disclosure jurisdic-
tions typically place strict limits on the use of other
Even in courts whose disclosure rules are all encom-
discovery tools (see sidebar).
passing, disclosure statements do not eliminate the
need for the traditional discovery tools. A disclosure
statement is much like a set of answers to certain
specific interrogatories. The disclosure rules, in ef- Your Local Notes
fect, amount to a series of questions that each party _________________________________________________
has to answer without being asked. In the context of
_________________________________________________
each individual case, there will usually be other
questions that also need asking. Written disclosure
SIDEBAR
Rules Limiting Discovery
With or without disclosure rules, more and more rogatories that a party may submit. FRCP, Rule
courts are adopting rules seeking to rein in the overuse 33(a), is typical: “Without leave of court or
or abuse of traditional discovery tools like interroga- written stipulation, any party may serve upon
tories and depositions. Some of the measures com- any other party written interrogatories, not ex-
monly seen are discussed here. ceeding 25 in number including all discrete sub-
parts. . . .”
■ Increased Planning and Judicial Oversight. One
of the common aims of discovery reform is to in- ■ Limitations on Deposition Discovery. Under the
troduce a greater degree of planning into the traditional open discovery rules, litigants
discovery process. Instead of allowing litigants could, and often did, take depositions of every
to decide what discovery they need as they go witness who could conceivably have informa-
along—practically guaranteeing procrastination about any aspect of the case. Every time
tion and delay—why not figure out in advance one party takes a deposition, the opposing
what discovery will be needed and make a party is put to the expense of paying a lawyer
schedule that will get it done? to attend and, usually, paying hundreds of dol-
lars for a transcript. Deposition costs alone
The federal rules attempt to involve the attorneys could run to tens of thousands of dollars even
for both sides and also the judge in this planning in routine cases. Courts have experimented with
process. First, the attorneys are to meet, and “make or various ways of imposing some limits. Under
arrange for the disclosures required by [FRCP, Rule the federal rules, each side is allowed 10 depo-
26(a)(1)] and to develop a proposed discovery plan” sitions “for free”—to take more than 10, court
[FRCP, Rule 26(f)]. Within 10 days after the meeting, permission is required; see FRCP, Rule 30(a)(2).
the attorneys are to submit to the court a “written re- Some state courts impose stricter limits, and
port outlining the plan” [FRCP, Rule 26(f)]. also limit each deposition to a specified number
■ Court-Imposed Time Limits and Deadlines. Un- of hours.
der the federal rules, after the discovery plan is ■ Discretion and Flexibility. Obviously, limitations
submitted, the judge then holds a scheduling on discovery that are appropriate in a garden-
conference with the attorneys present, and en- variety lawsuit may be far too restrictive in a
ters a scheduling order that sets deadlines for large, complex case. Is there any way to adjust
the completion of discovery. The order may also the rules to the needs of the case? Yes. In gen-
set or modify the deadlines for disclosure state- eral, the opposing attorneys can modify the
ments and prescribe what discovery will be con- limits if they can agree. If not, either side can
ducted and when; see FRCP, Rule 16(b). ask the judge to allow additional discovery. The
■ Limitations on Written Discovery. Many courts court always retains the power to regulate the
now place strict limits on the number of inter- cases before it.
SIDEBAR
Other Kinds of Required Disclosure
Even in courts that do not require disclosure pecially if the responses previously given would be
statements, some kinds of voluntary disclosure are of- misleading when viewed in the light of information
ten required. It has, for example, long been a common that later becomes available.
practice of judges to require parties to exchange wit- There can be situations in which the rules of ethics
ness and exhibit lists at some point before trial. [In raise disclosure issues. Consider the following hypothet-
federal court, such a requirement may be found in ical: Suppose you are defending a lawsuit in a jurisdic-
Rule 26(a) (3).] Discovery rules often require that liti- tion that has no specific disclosure rules. Your client is an
gants voluntarily supplement discovery responses, es- art dealer who sold an expensive painting, supposedly a
SIDEBAR
Other Kinds of Required Disclosure continued
Braque, that the purchaser now claims was a forgery. should get assignments like this!), in the musty base-
The purchaser’s lawsuit is well under way. Art experts ment of a small library, you discover a document that
have examined the painting and disagree about its au- proves beyond question that the painting sold by your
thenticity. Predictably, your expert says the painting is client is a fake.
genuine and your opponent’s expert says it is a forgery. Must the document be disclosed? What do you
You are assigned to do some investigation, and think? (Read Rule 3.4 of the ABA Model Code Of Pro-
you begin tracing the history of the painting. While in fessional Responsibility and the official comments to
France conducting your investigation (every paralegal the rule, reproduced in Figure W12–1).
Figure W12–1 Rule 34 and Its Official Comments
A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value. A lawyer shall not counsel or assist
another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will
not be supported by admissible evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to
another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by
refraining from giving such information.
Comment
[1] The procedure of the adversary system contemplates that the evidence in a case is to be
marshalled competitively by the contending parties. Fair competition in the adversary system is secured
by prohibitions against destruction or concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a claim or defense.
Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain
evidence through discovery or subpoena is an important procedural right. The exercise of that right can
be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions
makes it an offense to destroy material for purposes of impairing its availability in a pending proceeding
or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense.
Paragraph (a) applies to evidentiary material generally, including computerized information.
[3] With regard to paragraph (b), it is not improper to pay a witness’s expenses or to compensate
an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is
improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert
witness a contingent fee.
[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information
to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.
Discovery Practices” in the Federal Civil Rules Hand-

Your Local Notes
book published annually by West Publishing, St.
_________________________________________________ Paul, MN.)
_________________________________________________
Your Local Notes
_________________________________________________
Disclosure Statements: _________________________________________________
If we are handling a lawsuit in a jurisdiction that
has adopted disclosure-based discovery, then we SIDEBAR
will have to prepare a disclosure statement. Our
first task must be to find out exactly what disclo- Current Status of Federal
sure is required in the court in which our lawsuit Disclosure Rules
is pending.
The flexibility of individual U.S. district courts
PREPARATORY STEPS to “opt out” of or modify the disclosure require-
ments of Rule 26(a) may be about to end. The Ju-
dicial Conference Advisory Committee responsible
Determine the Disclosure
Step 1 Requirements of Our Court
for proposing changes to the Federal Rules of Civil
Procedure has proposed making Rule 26(a)
mandatory in all U.S. district courts. Many federal
As we have seen, even in disclosure jurisdictions, judges have expressed their strong opposition to
the required disclosure varies quite a lot from one the proposal, but, in the end, it is up to the U.S.
court to another, because courts have adopted dif- Supreme Court to decide (unless the Congress de-
ferent rules and because judges do not interpret cides to enter the debate, which is possible). At this
and enforce the rules uniformly even when the rules writing, the outcome of the proposal is impossible
are the same. to predict. For the latest on the changes to the dis-
In this workshop, we will assume that FRCP, covery rules currently under consideration, see the
Rule 26(a), is in force. (For state court cases, con- official web site of the U.S. federal courts at
sult the appropriate state court rules; your instruc- www.uscourts.gov.
tor will tell you where to find them.) As we have
seen, however, federal district courts are free to fol-
low Rule 26(a) in whole, in part, or not at all. Before
we can prepare a disclosure statement, we must Determine When Disclosure
Step 2 Is Due and Docket It
find out what rules apply. Rule 26(a) provides that
each party must make the disclosure described in
the rule “except to the extent otherwise stipulated Nailing down the deadline for the FRCP, Rule 26(a)
or directed by order or local rule.” Therefore, if a (1), disclosure statement is not always easy, be-
district court has opted not to follow Rule 26(a), the cause it depends on an unpredictable event: the
local rules of that court will so provide. judge’s order setting the scheduling conference. It
One easy place to get information about the local goes without saying, of course, that when we re-
rules and procedures in any federal district court is ceive the judge’s order, we will immediately verify
the U.S. courts site on the World Wide Web at www. that the firm’s docketing clerk has correctly noted
uscourts.gov. Search the site for your state or dis- the deadline dates for the discovery planning
trict and see what resources are available. Most dis- meeting and the Rule 26(a) (1) disclosure state-
tricts have their local rules posted, and in some dis- ment in the office’s central calendar. We also note
tricts each judge has posted procedures for his or the dates in our personal calendar.
her own court. (For an example of individual judge What happens, though, if 5 months have passed
postings, see, e.g., the link to “Judges’ Individual since we filed the suit and we have heard nothing
Practices and Procedures” for the Southern District from the court? Has the court simply not issued the
Of New York at www.nysd.uscourts.gov. For a com- order setting the scheduling conference, or did it
plete compilation showing, for the federal courts of somehow get by us or get lost in the mail? Constant
every district, which parts of Rule 26(a) each court worry about this sort of thing is one of the traits
has chosen to follow, see the section entitled “Local that distinguishes great paralegals from merely
good ones. Working as a litigation paralegal, you judge will want to know what the legal issues are,
will soon develop a feel for how much time should and the scheduling order will likely limit discovery
pass between events in a lawsuit, and if your sixth in ways that will make it harder (not impossible, but
sense tells you that something should have hap- harder) to introduce new issues thereafter. It is
pened by now, call the clerk’s office or the judge’s therefore quite important to deal with any loose
secretary and find out. ends in your research of the legal theories of the
case well before you begin preparing a disclosure
Your Local Notes statement. Update your issues outline accordingly.
_________________________________________________
DRAFTING STEPS
_________________________________________________
What, exactly, is a disclosure statement supposed
to look like? The federal rules give only a very gen-
eral answer. FRCP, Rule 26(a) (4), provides that un-
less the court directs otherwise by order or local
Step 3 Update the Issues Outline
rule, all disclosures are to be “in writing, signed,
served, and promptly filed with the court.”
Preparing a proper disclosure statement in a com- Since the disclosure must be filed with the
plex case is a time-consuming task that cannot be court, it must take the form of a court paper, with
accomplished in a few days or weeks without caption and other formal parts, complying with any
proper preparation. If you wait until the last minute, local rules governing the form of filed papers. The
you will not be able to lay hands on the documents body of the disclosure statement must address the
and information that you need. Therefore, it is wise four areas of subject matter described in subpara-
to begin early to assemble and organize your case. graphs (A) through (D) of Rule 26(a) (1). Beyond
There are many ways to do this; one that works that, the organization and format of the disclosure
well is to use your issues outline as a kind of check- is up to you; if possible, obtain sample disclosures
list. Begin by going through the issues outline point filed by other practitioners in the courts of your lo-
by point, making notes of any documents pertinent cality, and imitate them.
to each point, and jotting down the names of any
witnesses who might be in a position to shed light
on each point. As you review the issues outline,
Step 4 Caption and Preamble
make a checklist of items for follow-up: documents
to obtain, witnesses to interview, etc. The caption is the same as for any filed court paper,
Then set about gathering the required informa- and can be block-copied from the word processor
tion and noting the information obtained in your is- form we prepared in Workshop 4. In federal court,
sues outline as you complete each item on your an appropriate title is “Plaintiff’s (or Defendant’s)
checklist. As you gather information, read the doc- Rule 26(a) (1) Disclosure”; state court terminology
uments and listen to the witnesses for clues about will vary. The preamble should, as always, describe
other evidence of which you were not aware, and in concise terms the nature of the paper being filed.
add to your checklist. For example: “Pursuant to Rule 26(a) (1), Federal
If you follow this strategy, by the time the due Rules of Civil Procedure, plaintiff (defendant)
date for disclosure arrives you will be able to write makes the following disclosures.”
the disclosure statement from the information
recorded in your issues outline. List Persons with
One alternative strategy is, of course, to wait Step 5 Discoverable Information
until the last minute, then scramble around trying
to fill in the needed disclosure an item at a time. Pro- The first category of required disclosure is:
crastination about disclosure is hazardous, be-
cause the judge can exclude an item of evidence if it [T]he name and, if known, the address and
turns out that you had it all along, missed it because telephone number of each individual likely to
you were in a hurry, and failed to disclose it when have discoverable information relevant to
required. disputed facts alleged with particularity in the
pleadings, identifying the subjects of the
A final caveat about the issues outline: By the
information. [FRCP, Rule 26(a) (1) (A)]
time the FRCP, Rule 26(a) (1), disclosure statement
is due, the legal issues in the case are usually be- Notice that FRCP, Rule 26(a) (1) (A), is not asking us
ginning to gel. At the scheduling conference, the to specify what witnesses we will call at trial. Its
reach is much broader than that. It requires us to ■ All individuals from whom statements have
identify any person we know of who is likely to have been taken;
information about disputed facts, whether or not ■ All individuals listed as witnesses in any po-
we might call that person to testify. lice investigative report or similar document;
Superficially, FRCP, Rule 26(a) (1) (A), ought to
■ All individuals having custody of documents
be simple to comply with—just list anyone who
that might be relevant to the suit;
may have information about the case. Keep in mind,
however, that the Rule 26(a) disclosure occurs ■ All individuals whom we expect to call as wit-
early in the case, at a time when our own investiga- nesses; and
tion may not be very far along. Worse yet, Rule 26(a) ■ All individuals associated with our client
(1) (A) requires us to guess at whether an individ- who may be in possession of discoverable
ual is “likely” to have discoverable information. information.
Consider the way in which we would typically We list the names of each person in the body of
identify the individuals likely to have discover- the disclosure statement itself, together with each
able information. Our initial information usually person’s address and telephone number, if known.
comes from our client, who can likely suggest oth- We must also specify the “subjects of the informa-
ers who can provide information. Documents fur- tion” expected from each person. This should be
nish another source of information; as we review
short and to the point. We are not required to de-
documents, we will often come across names of
scribe the information expected, or to disclose what
people who might be contacted for additional in-
we think each person’s testimony will be—we must
formation. Factual development is an ongoing
merely identify the subject.
process, and at any given moment we will usually
be aware of at least a few individuals who may be Example of how not to do it (Park Hotels
able to supply pertinent information but whom we Group’s disclosure statement): “Arnold
have not yet contacted. Must we disclose their Trevayne, Banbury Park Hotel, Las Vegas,
identities? Nevada, telephone 555-8765; will testify that he
The answer is yes—we must disclose. FRCP, gave defendant Collins the key to room 409 at
approximately 1:00 A.M., and at plaintiff’s request
Rule 26(a) (1), provides:
called the police at approximately 1:15 A.M.
A party shall make its initial disclosures Analysis: This disclosure is more specific
based on the information then reasonably than the rule requires. Only the subject matter
available to it and is not excused from making is needed, not the specific facts. Best not to
its disclosures because it has not fully commit ourselves to a particular version of the
completed its investigation of the case. . . . facts until we have done more investigation.
Also, the fact that Arnie called the police at
What about individuals whom we know have in- Shannon’s request is not in dispute, and does
formation that is adverse to our case? Must we dis- not need to be addressed in disclosure.
Example of how to do it: “Arnold Trevayne,
close their identities, in effect giving our opponent
Banbury Park Hotel, Las Vegas, Nevada,
ammunition to use against us? Again, yes; we must telephone 555-8765. Subject matter: his
disclose the identities of everyone we know of, and observations as desk clerk at Banbury Park
there is no exception for witnesses whose testi- Hotel on the night in question.”
mony we do not like.
Usually, the best course of action here is to err
on the side of overdisclosure. We systematically re- Your Local Notes
view our notes and any available documents, and _________________________________________________
we disclose any names that we find there. We hold
back a name only if there are compelling reasons for _________________________________________________
doing so, and then only after doing careful research
and assuring ourselves that there is a valid legal ar-
gument for not disclosing it. Among other things,
we always list: Step 6 List All Discoverable Documents
■ All individual parties to the suit;
■ For any corporate party, the employees of the FRCP, Rule 26(a) (1) (B) requires us to disclose
corporation whom we believe to have been [A] copy of, or a description by category
involved in the events out of which the law- and location of, all documents, data
suit arises; compilations, and tangible things in the
SIDEBAR
Inadequate Disclosure: The Consequences
Disclosure statements, like discovery responses, vayne entered Shannon’s room and switched
provide information—potential ammunition—to our the keys. When the case goes to the jury, the
opponent. Obviously, we would rather not give away judge would instruct the jury to assume that
any more of it than necessary. Suppose we file a dis- fact. Had they disclosed the witness, Park Ho-
closure statement that is not complete, either be- tels’ attorneys could have put on other evidence
cause we deliberately held back information, or be- to refute her testimony, or to show that Arnie
cause we were less than diligent in gathering the had some legitimate purpose in entering the
facts to be disclosed. Is there a downside to this kind room. Now, however, they are stuck with the
of behavior? worst possible interpretation.
Yes. In the first place, some judges are apt to react ■ Inform the jury of the nondisclosure. In our ex-
to blatant and deliberate infractions of the disclosure ample, the judge might simply instruct the jury
rules by making an ethics complaint against the of- that Park Hotels knew about the other guest
fending attorney, resulting in bar disciplinary pro- and what she saw, was required to disclose that
ceedings and possible censure, suspension, or disbar- information, and deliberately covered it up. Ju-
ment. Such severe measures are uncommon, however, rors tend to be unforgiving when lied to, and
and imposed only in extreme cases. What about more many people view concealing evidence as the
subtle omissions? In our hypo, assume that another equivalent of lying.
hotel guest saw Arnie Trevayne enter Shannon’s room ■ Prohibit the offending party from introducing
when he went there to switch the keys. Park Hotels particular evidence. The judge has the power to
Group’s attorney knows of the other guest and what level the playing field by taking away some of
she observed. Suppose Park Hotels Group’s attorney the evidence that would have favored the
decides to “accidentally” forget to mention the other nondisclosing party.
guest in the disclosure statement—is there any hazard
■ Strike claims or defenses from the pleadings,
to doing so?
dismissing claims, or rendering judgment by
FRCP, Rule 37(c) (1), gives the judge a veritable default against the offending party. If the
arsenal of weapons with which to punish a party who, nondisclosure is sufficiently compelling, FRCP,
“without substantial justification,” fails to disclose re- Rule 37(b) (2) (C), gives the judge the power to
quired information. Among other sanctions, the judge end the lawsuit then and there and enter judg-
has the power to: ment in favor of the other party.
■ Prohibit the offending party from using the Are these weapons enough, as a practical matter, to
witness or document that was not disclosed. deter litigants and attorneys from engineering their
(This threat alone is usually not much of a de- disclosure statements so as to avoid giving away bad
terrent. If the other guest’s testimony is adverse facts? Unfortunately, it is hard to prove that an op-
enough to tempt Park Hotels’ attorney to with- posing party willfully violated the rules. Even if you do
hold disclosure, calling her as a witness at trial ultimately discover the facts that your opponent with-
is likely the last thing that Park Hotels would held, how do you prove that your opponent knew
want to do.) about them? Anyway, judges are often not very in-
■ Order the offending party to pay the opposing clined to impose severe punishment for discovery in-
party’s expenses, including attorney’s fees, fractions even when the offender is caught red-
caused by the failure to disclose. Suppose Shan- handed. So we must always be alert to the possibility
non’s attorney hires an investigator to locate that an opponent may not be disclosing all that the
and interview everyone who was a guest on the rules require.
fourth floor on the night in question. This inves- In preparing our own disclosures, however, we
tigation cost $20,000 but did ultimately turn up must take into account the very real possibility that,
the guest who saw Arnie enter the room. The if we are caught hiding the ball, the consequences
judge could order the hotel to pay the $20,000. may be severe. Punishment or no punishment, there
■ Order that those particular facts are deemed es- is no excuse for deliberately violating the rules, and
tablished. Here, for example, the judge could you should never yield to the temptation to conceal
enter an order finding as a fact that Arnie Tre- evidence.
possession, custody, or control of the party that (a)Those between your client (or an employee
are relevant to disputed facts alleged with of your client) and the opposing party (or an
particularity in the pleadings. employee of the opposing party). In general,
all such communications must be disclosed
Some lawsuits are document intensive; some
if relevant to a disputed issue.
are not. In a simple automobile accident case,
(b)Those between your client and a third party.
aside from perhaps a police report, there may not
Again, such communications must usually
be any documents relevant to the issue of liability.
be disclosed (unless, of course, the third
[There will be documents establishing the amount
party is your client’s lawyer!).
of damages, but those are disclosed separately un-
(c)Internal communications between one em-
der FRCP, Rule 26(a) (1) (C).] At the other extreme,
ployee of your client and another: internal
in some kinds of commercial litigation—antitrust
memoranda, internal electronic mail mes-
lawsuits and securities fraud cases come to
sages, and the like. Deciding whether to dis-
mind—the relevant documents may literally fill
close this kind of communication can pose
many rooms.
difficult issues, since work product and
Identifying the Documents to be Disclosed— other privileges may apply.
Whatever the size of the problem, our first task is to 3. Business records relating to factual matters that
determine exactly what documents exist. At this are at issue in the suit. In our hypo, the records
point, we are concerned only with documents that relating to door and lock maintenance would
are in our client’s “possession, custody, or control.” be one example of this kind of record. In
That description includes any documents in our preparing your disclosure, it is wise to read
own file, and any that are “reasonably available” to through the complaint and answer, line by line,
our client [see the last sentence of FRCP, Rule 26(a) and ask yourself what records your client
(1)]. Court decisions have found that documents might have that might bear on each allegation.
are within a party’s “possession, custody, or con-
trol” if they are in the possession of: If we have properly done our homework in
Step 3, we have already consulted with our client
■ The party’s attorney; and made careful notes (or, if feasible, copies) of
■ The party’s insurance company or agent; or any documents of which our client is aware. If our
■ A corporate party’s subsidiary or branch of- client is a corporation, we have consulted with the
fice, even if in another state. corporate representative who is coordinating our
work in the lawsuit, obtained the names of other
Even if documents are owned by someone else,
employees who are in a position to know what
they must be disclosed if they are in the party’s pos-
records exist, and followed up any leads. Our ob-
session, custody, or control.
jective here is to put ourselves in a position where
Obviously, what documents might exist that
we can be confident that we know exactly what
would be relevant in a given lawsuit depends
documents our client has. Particularly when rep-
greatly on the facts. Usually, the documents that
resenting corporate clients in document-intensive
need to be disclosed fall into one of three main
cases, merely identifying all of the documents can
categories:
be a daunting task, and it is one that needs to be
1. Documents that, in and of themselves, form performed with considerable care. If, through
part of the dispute. For example, if the lawsuit careless investigation, we fail to disclose some im-
involves a claim of breach of a written con- portant category of documents that was in our
tract, the contract is a document that would client’s possession, the judge has the power to im-
be disclosed. So would any other documents pose severe punishment on us or on our client.
relating to it: prior drafts, notes, correspon- (See the sidebar on Inadequate Disclosure: The
dence, etc. Consequences.)
2. Documents comprising communications about
the subject matter of the suit. These may include
letters, memos, telephone messages—and do Your Local Notes
not overlook electronic mail messages, which _________________________________________________
are fast becoming an important source of evi-
_________________________________________________
dence in lawsuits. Such communications again
comprise three categories:
Relevant to Disputed Facts Alleged with Par- description be and how broad are the categories?
ticularity—Assume that we have already gathered The rules do not say, and judges’ expectations vary.
all the documents that we can find that could con- As a rule of thumb, if you find yourself trying to de-
ceivably have anything to do with the case. Which cide whether your document descriptions need to
ones must be disclosed? According to FRCP, Rule be broken down into more categories or levels of
26(a) (1) (B), any that are “relevant to disputed detail, try this: Pick a single document at random
facts alleged with particularity in the pleadings.” from the category that you are concerned about
and ask yourself the following question: “If the op-
Example: In paragraph 3 of Shannon’s posing party claimed that I did not adequately dis-
complaint, she alleged that “Defendant Park
close this document, would the judge agree that my
Hotels Group (hereinafter “Hotel”) is a
corporation organized and existing under the description in this disclosure statement covered
laws of the state of Delaware, and doing this document?” If the answer is no, then you need
business in the state of Nevada. . . . ” You a more detailed breakdown.
represent Park Hotels Group. Obviously, your In big-document cases, where there may be
client has a number of documents that would rooms full of relevant documents, the task of dis-
be relevant to its corporate status— closure, even by categories and locations, may be
incorporation papers of various kinds, for dauntingly large. An alternative in such cases is for
example. Must you include these in Park Hotels’ the attorneys on both sides to reach some agree-
disclosure statement? ment about document access. Often, this involves
Analysis: Park Hotels’ corporate existence setting up a central document depository, to which
is not a disputed fact. Paragraph 2 of Park
both sides will have access. Within reasonable lim-
Hotels’ answer admits that Park Hotels Group is
a Delaware corporation doing business in its, the attorneys are free to work out their own doc-
Nevada. Therefore, there is no need to disclose ument disclosure scheme in lieu of the listing by
the incorporation papers. categories and locations called for by FRCP, Rule
26(a) (1) (B). By its terms, Rule 26(a) (1) applies “ex-
Example: In paragraph 18 of Shannon’s cept to the extent otherwise stipulated or directed
complaint, she alleged that Park Hotels “failed to by order. . . . ”
maintain the door and lock of plaintiff’s room in a
reasonable manner so as to prevent unauthorized
Show Computation
entry. . . . ” You represent Park Hotels Group. The Step 7 Of Damages
hotel maintains maintenance records on all
maintenance done in the hotel, including
maintenance done on doors and locks of all guest The next subject of required disclosure is the com-
rooms. Must these records be disclosed? putation of damages. FRCP, Rule 26(a) (1) (C), re-
Analysis: Paragraph 8 of Park Hotels’ quires the disclosure statement to include:
answer denies the allegation that Park Hotels
failed to maintain the door and lock of plaintiff’s a computation of any category of damages
room, making that alleged fact a disputed one. claimed by the disclosing party, making
Notice, however, that the allegation referred available for inspection and copying as under
only to plaintiff’s room, not to all the rooms in Rule 34 the documents or other evidentiary
the hotel. Therefore, Park Hotels need only material, not privileged or protected from
disclose the maintenance records pertaining to disclosure, on which such computation is
the door and lock of that one room, and need based, including materials bearing on the
not disclose the others. nature and extent of injuries suffered. . . .
The Manner of Disclosure—In lawsuits where Which Parties Must Disclose Computation of
the documents are few, the mechanics of the dis- Damages—Notice that the rule refers to damages
closure task are easy. We gather up all the disclos- “claimed by the disclosing party.” There is no re-
able documents that we have, make copies of them, quirement that we disclose how we contend that
and attach the copies to the disclosure statement. another party’s damages should be computed. In
That way, there is no room for argument later on our hypo, for example, Shannon is claiming dam-
about what we disclosed. ages, so she must disclose how much money she is
Where documents are voluminous, it is usually asking for and how the amount was computed. Park
not practical to attach copies. Then FRCP, Rule Hotels does not need to disclose how it thinks Shan-
26(a) (1) (B), requires us to give a “description by non’s damages, if any, should be computed. In fact,
category and location.” How detailed should this since Park Hotels has not claimed any damages
(there is no counterclaim) it can skip this item of of damages because we did not mention it in our
disclosure completely. Similarly, Dr. Collins need disclosure. There is usually no way in which infor-
not disclose his views on the computation of Shan- mation about our damages can hurt our case, so we
non’s damages, but if he has asserted a counter- will err on the side of overdisclosure.
claim or cross-claim asking for damages for his own The items comprising a party’s damage claims
injuries, he must of course disclose how he thinks usually fall into one of three categories:
the amount should be computed.
1. Items involving concrete, provable expenses
In practice, plaintiff’s attorney will certainly
that are easy to establish. Example: a doctor’s
want to find out what arguments defendant will be
bill for treatment of injuries. For such items, all
making about the computation of plaintiff’s dam-
we need to do is list a description and amount,
ages, so as to avoid any nasty surprises at trial. In
separately or by categories, and attach copies
our hypo, Shannon’s attorney will undoubtedly
of the bills.
send Park Hotels an interrogatory asking how it
contends Shannon’s damages should be computed. 2. Items such as damages for pain and suffering
that are difficult or impossible to quantify.
Mechanics of Disclosing Damage Computa- There is no way to compute the amount to be
tions—FRCP, Rule 26(a) (1) (C), requires two claimed for pain and suffering; instead, it will
things: (1) a computation of damages and (2) dis- be up to the jury to decide how much to award
closure of the documents underlying the computa- after hearing evidence about how much pain
tion. The computation of damages is a part of the plaintiff has suffered. At trial, plaintiff will want
body of the disclosure statement itself. It is usually to put on as much evidence as possible to be
best presented in tabular form, listing each item for sure the jury gets the full impact of how badly
which a claim is being made, giving the dollar defendant’s conduct has affected plaintiff’s life.
amount of each, and indicating what documents In a case involving severe physical injuries,
support each. The suggested format is shown later plaintiff’s attorney may even have videos made
in Figure W12–2 in the Learning by Example section. showing plaintiff in everyday situations, so that
(But keep in mind that, absent a local rule or court the jury can see just how wretched plaintiff’s
order to the contrary, you are free to adjust the life is as a result of her condition. Often, treat-
style and format of the disclosure to fit the needs of ing physicians or physician experts will be
the situation.) called as witnesses to describe how the injury
Care should be taken to avoid casting the dam- in question affects the sufferer. Medical
age calculation in concrete. As with most factual is- records may be introduced to show the nature
sues in lawsuits, our perception of how best to pre-
of plaintiff’s injuries. Plaintiff’s attorney does
sent our case on damages will usually evolve as the
not want to risk having any of this evidence ex-
lawsuit progresses. A tight, well-organized presenta-
cluded because of nondisclosure, so the dis-
tion of damages may seem impressive—and we will
closure statement should list the main factors
need one when we are ready to argue to the jury—
comprising such claims, and all supporting
but at the disclosure statement stage we are better
documents should be disclosed.
off leaving some flexibility for change. One way to do
this is to make it clear that the dollar figures in our 3. Items that are based on provable quantities, but
damage claim are preliminary and subject to nevertheless require estimates or computa-
change, and to clearly label items as estimates if that tions. Example: A claim for future income lost
is what they are. It is also not a bad idea to include due to an injury. The amount of the claim is not
some “weasel words” to the effect that the damage mere guesswork—it can be computed if we
computation is preliminary and subject to change. know what salary the injured person would
(Of course, when the computation does change we have received and how long a period of time will
will have to supplement our disclosure.) elapse before she can return to work. It may be
As usual, one question that arises is “How much necessary to estimate some of the quantities
detail?” In disclosing damages, the answer is “The needed to make the calculation, but this is
more detail, the better.” This does not mean that we something that an expert witness can do if nec-
need to list every 89-cent bottle of aspirin sepa- essary. Another example: A claim for damages
rately in our damage computation—instead, we for breach of contract often involves estimating
would most likely show a general category for how much it would cost to go into the open
“medications” and a total of all expenditures for market and replace whatever it was that the
such items. In general, though, we do not want to breaching party had contracted to provide.
run the risk that the judge might exclude some item Again, given the necessary market data, an ex-
pert witness can compute the amount of money The disclosure rules, and before them the dis-
necessary to make the nonbreaching party covery rules, have long allowed litigants to find out
whole. For items of this kind, the damages dis- how much insurance coverage the opposing party
closure must include all of the data on which has. This may seem surprising, since, as everyone
the computation will be based, and also must knows, not only is evidence of insurance coverage in-
show how the computation is to be carried out. admissible at trial, mere mention of the word “insur-
[Of course, FRCP, Rule 26(a) (2) requires us to ance” in front of the jury is apt to result in an instant
disclose all reports of any expert witnesses who mistrial. The reason why insurance coverage is dis-
will testify, so we may be able to kill two birds coverable and, in disclosure jurisdictions, a required
with one stone here, by simply turning over the item of disclosure is because judges want to encour-
reports of our damages experts.] age litigants to settle, and the availability of insur-
ance is usually an important factor in settlement de-
Your Local Notes cisions. Like it or not, the settlement value of a claim
often depends greatly on whether a judgment, if won,
_________________________________________________
could be collected. If a defendant has no insurance
_________________________________________________ coverage and no other assets from which a judgment
could be collected, plaintiff will be much more likely
to accept a low cash payment rather than spend sev-
Disclosing the Backup Documentation—In ad- eral years and tens of thousands of dollars obtaining
dition to the computation of damages, FRCP, Rule an uncollectable judgment.
26(a) (1) (C), requires disclosure of the documents FRCP, Rule 26(a) (1) (D), calls for the disclosing
supporting the damage claims. This can be done ei- party to provide any insurance policies to the other
ther by accompanying the disclosure statement parties “for inspection and copying as under FRCP,
with copies of the documents, or, as the rule sug- Rule 34.” In the usual case, this is accomplished by
gests, by making the documents available for in- attaching a copy of the insurance policy to the dis-
spection and copying as would be done with an closure statement.
FRCP, Rule 34, request for production of docu-
ments. The virtue of attaching copies is that doing
Your Local Notes
so makes it easy to prove exactly what documents
were disclosed. However, particularly with claims _________________________________________________
requiring evidence of the extent and severity of per- _________________________________________________
sonal injuries, the universe of possibly relevant
documents may be quite large, extending to such
voluminous records as hospital charts and physi-
cian’s notes. Therefore, except in the simplest cases
Date, Signature,
where our position on damages is unlikely to Step 9 and Verification
change, attaching copies of all relevant documents
may be impracticable.
Disclosure statements are signed by the party’s at-
torney in the same manner as any other court pa-
per. You are already aware that an attorney’s signa-
Step 8 Disclose Insurance Coverage ture on a court paper carries with it certain implied
representations, as provided by FRCP, Rule 11(b).
In the case of disclosure statements, FRCP, Rule
The final category of information to be included in 26(g) (1), adds an additional avowal of complete-
a FRCP, Rule 26(a) (1), disclosure is: ness and correctness:
any insurance agreement under which any Every disclosure made pursuant to [Rule
person carrying on an insurance business may 26(a) (1) or 26(a) (3)] shall be signed by at least
be liable to satisfy part or all of a judgment one attorney of record in the attorney’s
which may be entered in the action or to individual name, whose address shall be
indemnify or reimburse for payments made to stated. . . . The signature of the attorney . . .
satisfy the judgment. constitutes a certification that to the best of the
signer’s knowledge, information, and belief,
In other words, any insurance policy covering the formed after a reasonable inquiry, the
defendant for the liabilities claimed in the suit must disclosure is complete and correct as of the
be disclosed. time it is made.
SIDEBAR
Taking the Next Step
As we have seen, the federal rules do not carry the example, state court rules require a disclosure state-
disclosure philosophy to its logical limit. The disclosure of ment to include, in addition to the categories covered
potential witnesses, documents, damage calculations, by federal FRCP, Rule 26(a), the following:
insurance, and expert witnesses required by FRCP, Rule
■ The factual basis of each claim or defense. (Not
26(a), is enough to provide litigants with a good start to
just the subject matter—the rule requires a
their factual development, but the intent of Rule 26 is
party to state in detail the facts underlying
that interrogatories, depositions, and other traditional
each claim or defense.)
discovery tools will still be needed to fill in the gaps. Rule
26 aims to provide the litigants with the sources of infor- ■ The legal theory underlying each claim or de-
mation—potential witnesses and documents—but it is fense, including citation of authorities where
up to each party to extract the desired information from necessary.
those sources using other discovery methods. Disclosure rules are still in an experimental stage.
Some judges and scholars favor much more com- If you practice in a disclosure jurisdiction, you will
prehensive disclosure schemes. In some state courts, have to inform yourself of the precise requirements of
the rules require more detailed disclosure encompass- your courts. Your instructor will tell you whether the
ing not only the sources of information, but the infor- disclosure rules of the courts of your locality go beyond
mation itself. In the authors’ home state, Arizona, for the requirements of federal Rule 26.
Your Local Notes Step 11 Docket Supplementation Checks

_________________________________________________
_________________________________________________ The initial FRCP, Rule 26(a) (1), disclosure occurs in
the early stages of the lawsuit, before other discov-
ery has even commenced. To make disclosure-
based discovery work effectively, it is obviously
CONCLUDING STEPS necessary for the parties to update their disclo-
sures as new information becomes available. The
rules expressly require supplementation. FRCP,
Step 10 File and Serve Rule 26(e) (1), provides:
A party is under a duty to supplement at
FRCP, Rule 26(a) (4), provides that “Unless other- appropriate intervals its disclosures under
wise directed by order or local rule, all disclosures [Rule 26(a)] if the party learns that in some
shall be . . . signed, served, and promptly filed with material respect the information disclosed is
the court.” Served on whom? All other parties, incomplete or incorrect and if the additional or
whether adverse or not. corrective information has not otherwise been
made known to the other parties during the
We have seen that many courts, seeking to
discovery process or in writing. . . .
avoid clogging the clerk’s office with unnecessary
paper, do not allow filing of discovery papers. Dis- We have already seen that the judge has the au-
closure statements, however, are filed with the thority to impose quite severe punishment on par-
clerk unless there is a specific local rule or order ties who fail to comply with the disclosure rules
providing otherwise. (see sidebar on Inadequate Disclosure: The Conse-
quences). The sanctions for failure to disclose ap-
ply equally to failure to supplement; see FRCP, Rule
Your Local Notes
37(c) (1). Forgetting to file a supplemental disclo-
_________________________________________________ sure to reveal some newly discovered witness or
_________________________________________________
document is just as hazardous as leaving a witness
or document out of the original disclosure state-
ment—the obligation is the same.
FRCP, Rule 26(e) (1), requires supplementation sue of West’s Federal Civil Rules Handbook, and ver-
“at appropriate intervals.” What is an appropriate ify that, in the District of Arizona, Rules 26(a)
interval? The answer depends on the court and the (1)–(3) apply.
situation. At a minimum, disclosures should be re-
viewed for supplementation no less often than
Determine When Disclosure
every 60 days. Other time periods may be imposed Step 2 Is Due and Docket It
by local rule or by court order in a particular case.
The circumstances of a given case may also require
We will imagine for purposes of our hypo that we
more rapid supplementation. If for example, you
have just received a minute entry from the U.S.
discover some important new witness a few weeks
District Court setting the FRCP, Rule 26(f), initial
before the date when discovery is supposed to be
scheduling conference for February 8. The last
completed, and you nevertheless wait 60 days be-
day for the discovery planning meeting between
fore disclosing the information, the judge is likely to
counsel is therefore 14 days earlier, or January 25.
be seriously annoyed.
The initial FRCP, Rule 26(a) (1), disclosure state-
We will check the applicable rules for the court
ment is due no later than 10 days after the dis-
in which our lawsuit is pending for any specific
covery planning meeting, so the last possible day
time limits on supplementation. We will make nota-
is February 4.
tions in the office docket, and in our personal cal-
The actual deadline could, however, be earlier,
endar, to remind us to review the disclosure state-
because the discovery planning meeting could be
ment for needed supplementation at the indicated
held earlier. As a practical matter, we will docket the
intervals, and again a week or so before the final
scheduling conference for February 8 , docket Feb-
discovery cutoff.
ruary 4 as the final due date for the FRCP, Rule 26(a)
(1), disclosure statement, docket January 25 as the
last day for the discovery planning meeting, and, fi-
Disclosure Statements: nally, make a docket notation for a date in mid-Jan-
Learning by Example uary to review the other deadline dates and adjust
them if the discovery planning meeting has been
We now apply what we have learned by preparing scheduled for an earlier date.
an initial FRCP, Rule 26(a) (1), disclosure statement Usually, what will happen is that, sometime
to be filed on behalf of Shannon. In a real lawsuit, of shortly after receiving the minute entry, one of the
course, we would be able to obtain documents and attorneys will begin contacting the others to sched-
names of witnesses from our client, and, by study- ule the discover planning meeting. Often, the attor-
ing these and following up any leads, obtain still neys will at the same time try to agree on a date for
more. For purposes of this hypothetical exercise, disclosure statements. Naturally, when dates have
we will have to resign ourselves to inventing a typi- been agreed on, the entries in the office calendar
cal set of documents and witnesses. are modified accordingly.
PREPARATORY STEPS
Step 3 Update the Issues Outline
Determine the Disclosure
Step 1 Requirements of Our Court Before we can write a disclosure statement, we
must first assemble all of the required informa-
Since our hypothetical action is pending in the U.S. tion. We begin by reviewing our issues outline.
District Court for the District of Arizona, we will Since FRCP, Rule 26(a), is worded in terms of “dis-
consult that court’s local rules to determine what, if puted facts alleged with particularity in the plead-
any, disclosure is required. When we do so, we find ings,” we go through the complaint and answer
that the District of Arizona local rules are silent con- one phrase at a time, and verify that every dis-
cerning adoption of FRCP, Rule 26(a). What does puted allegation in the complaint appears in our
this mean? Rule 26(a), by its own terms, applies in issues outline.
all federal civil actions “except to the extent other- Then we go through our issues outline, point by
wise . . . directed by order or local rule. Since there point, and try to assess what work needs to be done
is no order or local rule directing otherwise, full to pull together a reasonably complete list of wit-
FRCP, Rule 26(a), disclosure is required. nesses and documents pertinent to each issue. We
Out of an excess of caution, we consult the “Lo- make a list of the items needing further investiga-
cal Discovery Practices” section of the current is- tion or follow-up.
Once we have a reasonably clear grasp of Disclosure Statements:

what additional information we need, we begin
contacting the people who can provide the miss- Learning by Doing
ing items. For purposes of our hypo, this would
likely include: Your task for this workshop is to prepare a Rule
26(a) (1) disclosure statement on behalf of Park Ho-
■ Contacting any witnesses listed in the police tels Group, Inc. In doing so you will use hypotheti-
investigating officer’s report to determine cal facts, some of which appear below, some of
what each observed; which will be supplied by your instructor, and some
■ Contacting each medical provider who has of which you will generate on your own. It is up to
treated Shannon for her injuries and obtain- you to decide which of them should be disclosed,
ing copies of medical records and billing and to prepare the disclosure statement in the
statements; and proper format.
■ Contacting Shannon’s employer to deter-
mine what documentation can be obtained EXERCISES
to establish Shannon’s earnings. (To estab- In carrying out this assignment, you should follow
lish her claim for lost earnings, we will need the step-by-step formula described in this work-
information about how much she has earned shop.
in the past.)
1. Following Step 1, determine the disclosure re-
quirements in effect in the U.S. district courts
DRAFTING STEPS having jurisdiction in your locality. Your in-
structor will tell you whether to prepare your
We use steps 4 through 9 to create Shannon’s dis-
disclosure statement in accordance with Rule
closure statement. It is shown in figure W12–2.
26(a) or in accordance with the rules in effect
in your local U.S. district court.
CONCLUDING STEPS 2. Your contact person in Park Hotels Group, Inc.,
is Mr. Leonard Shapiro, vice president. His
home address and phone are 1429 Rustic Dr.,
Asbury Park, NJ 07712, phone: 732-555-3983.
The address and telephone of Mr. Shapiro’s of-
fice (the Park Hotels Group, Inc. main office) is
We check the local rules of the District of Arizona 3 Municipal Plaza, Asbury Park, NJ 07712,
and find that Rule 1.2 provides that interrogatories Phone: 732-555-2929, extension 903. (At your in-
and depositions should not be filed with the court, structor’s option, your instructor may take the
but does not mention disclosure statements. role of Mr. Shapiro, or may assign that role to a
Therefore, FRCP, Rule 26(a) (4), controls, and we student; then you can write memos to the ficti-
file the original disclosure statement with the tious Mr. Shapiro with your requests, if any, for
clerk. We serve copies by mail on counsel for each additional facts, and the fictitious Mr. Shapiro
other party. can respond with additional hypothetical facts
as appropriate.)
3. You are given the following hypothetical facts.
It is up to you to decide which of them should
Step 5 Docket Supplementation Checks be disclosed.
Hotel guests: From the room registrations, the
The local rules for the District of Arizona do not names, addresses, and telephone numbers of the
specify at what intervals FRCP, Rule 26(a) (1), dis- guests in Rooms 405 through 412 on the night of the
closures are to be supplemented. Therefore, our incident were as follows: Mrs. Helen Barnes, 3816
obligation is to supplement at “appropriate inter- Kansas Ave, Omaha, NE 68111, phone: 402-555-6303
vals” as provided in FRCP, Rule 26(e) (1). We make (room 405, next door to Shannon’s room to the
entries on the office central calendar and on our south); Mr. and Mrs. Gerald Monson, 1514 Mills
personal calendar to remind us to review the dis- Ave, Gulfport, MS 39501, phone: 228-555-1539
closure for supplementation in approximately 60 (room 406, across the hall and one door to the
days, on April 7. south from Shannon’s room); Ms. Shannon Martin,
Figure W12–2 Disclosure Statement

DISTRICT OF ARIZONA

)
) NO. CV98-01456 PHX JL
Plaintiff, )
) PLAINTIFF’S RULE 26(a) (1)
) DISCLOSURE
v. )
)
ARTHUR COLLINS and JANE DOE COLLINS, )
husband and wife; PARK )
corporation; )
)
Defendants. )
__________________________________________________ )
Pursuant to Rule 26(a) (1), Federal Rules of Civil Procedure, plaintiff (defendant) makes the
following disclosures:
1. Persons Having Discoverable Information. The names and, if known, the addresses and telephone
numbers of each individual likely to have discoverable information relevant to disputed facts alleged
with particularity in the pleadings, to the extent known to plaintiff at this time, are:
Plaintiff Shannon Martin Subject: Events at Banbury Park Hotel leading to her injury;
8000 East Chaparral Road #422 nature and extent of her injuries; loss of employment/earnings.
Scottsdale, AZ
(602) 555-3857
Defendant Arthur Collins Subject: Events at Banbury Park Hotel leading to plaintiff’s
Address and telephone number injury; manner of his entry to plaintiff’s hotel room.
unknown.
Detective Sgt. Janet Marnell Subject: Police response and investigation into events at
Officer Edward Flanigan Banbury Park Hotel leading to plaintiff’s injury and observations
Officer Barbara Goldberg made and information obtained in connection therewith.
Las Vegas Police Department
400 Stewart Ave
Las Vegas, NV 89101
(702) 555-3513
Arnold Trevayne Subject: Events at Banbury Park Hotel leading to plaintiff’s
Address and telephone number injury.
unknown Circumstances surrounding delivery of room key to defendant
Collins.
Mr. and Mrs. Carl Mitchell Subject: Police report indicates that Mr. and Mrs. Mitchell
295 E. Shelbourne shared an elevator with Defendant Collins while ascending to
Las Vegas, NV 89123 4th floor of hotel immediately prior to incident, and may have
Telephone: 702-555-4578 information concerning his condition and demeanor at that
time.
continued
Figure W12–2, Disclosure Statement, continued
Mr. Andrew Garrison Subject: Police report indicates that Mr. Garrison and Mr. Rivera
905 E. Desert Inn Road #313 were paramedics who responded to the scene and treated
Las Vegas, NV 89109 defendant Collins. They are believed to have made
Phone: 702-555-9059 observations of plaintiff’s hotel room and persons and objects
therein, and condition of defendant Collins immediately after
Mr. Manuel Rivera
the incident.
7327 Cherry Valley Circle
Las Vegas, NV 89117
Phone: 702-555-6831
Ellen Sayers, M.D. Subject: Nature and severity of, emergency treatment for, and
Desert Lake Hospital prognosis of plaintiff’s injuries.
1825 E Flamingo Rd.
Las Vegas, NV 89119
(702) 555-6600
Paul Norling, M.D. Subject: Nature and severity of, ongoing treatment for, and
1350 East McDowell Road prognosis of plaintiff’s injuries and expected cost of treatment.
Phoenix, AZ
(602) 555-3651
Robin Carter, M.D. Subject: Plaintiff’s hand surgery, prognosis, cost of treatment
Scottsdale Medical Center
7480 East Osborne Rd.
Scottsdale, AZ
Gordon McCormick, P.T. Subject: Rehabilitation services for plaintiff’s hand injury
5210 N Scottsdale Rd #101,
Scottsdale, AZ 85250
(602) 555-2922
Anne Resnick, M.D. Subject: Anaesthesiology during plaintiff’s hand surgery; cost of
Scottsdale Medical Center treatment
7480 East Osborne Rd.
Scottsdale, Az
Dennis Tang, M.D. Subject: Nature and extent of psychological trauma suffered by
350 West Thomas Road plaintiff, treatment therefor, prognosis, and expected cost of
Phoenix, AZ treatment.
(602) 555-9287
Bruce DeAngelo Subject: Plaintiff’s employment, compensation therefore,
Network Software Solutions, compensation and opportunities lost due to injuries
Inc.
6366 N. 76th St.
Scottsdale, AZ
(602) 555-7230
2. Documents Relevant to Disputed Issues Other Than Damages. Documents, data compilations, and
tangible things in the possession, custody, or control of plaintiff that are relevant to disputed facts
alleged with particularity in the pleadings, to the extent known to plaintiff at this time are:
Police investigating officer’s report Copy attached, see attachment 2-1.

Copy of plaintiff’s room registration and Copy attached, see attachment 2-2.
receipt
3. Computation of Damages. Following is a computation of damages claimed by plaintiff to the extent

they can be computed and/or estimated at this early stage. This computation of damages is preliminary
and subject to change as investigation continues and additional information becomes available.
Supporting documents are either attached or will be made available for inspection and copying upon
reasonable request.
Summary of Damage Computation: Plaintiff’s damage claim totals the sum of $643,827.03. The
computation of this amount is summarized below, followed by more detailed enumerations of each
category of damages.
Medical treatment through January 15, _____ 28,667.24
Other out-of-pocket expenses 838.79

Loss of employment/earnings 114,321.00
General damages for pain and suffering 500,000.00
TOTAL 643,827.03
Medical treatment through January 15, ____. Plaintiff has incurred medical expenses in the amount
of $28,667.24, as summarized below, for which bills have been received as of January 15, _____.
Desert Lake Hospital, emergency treatment for

broken finger (statement, attachment 3-1) $588.35
Dr. Ellen Sayers, emergency treatment for
broken finger (statement, attachment 3-2) $467.00
Paul Norling, M.D., ongoing treatment of
plaintiff’s broken finger (statement, attachment 3-3) $2,089.38
Robin Carter, M.D., hand surgery (statement, attachment 3-4) $9,350.00
Anne Resnick, M.D., anaesthesiology during hand surgery
(statement, attachment 3-5) $1,650.00
Gordon McCormick, P.T., rehabilitation therapy following
hand surgery (statement, attachment 3-6) $922.65
Scottsdale General Hospital hospitalization in connection
with hand surgery (statement, attachment 3-7) $6,313.00
Dennis Tang, M.D., psychiatric treatment (statement, attachment 3-8) $6,018
Misc. medications and supplies (receipts, attachment 3-9) $1,268.86
TOTAL $28,667.24
Other Out-of-Pocket Expenses. Plaintiff has incurred other expenses in the amount of $838.79, as
summarized below, for which bills have been received as of January 15, _____.
Mileage for trips to doctors, etc., (mileage log,

attachment 3-10) $513.79
Housekeeper during plaintiff’s convalescence
after surgery (cancelled check, attachment 3-11) $325.00
TOTAL $838.79
continued
Future Medical Treatment. It is anticipated that plaintiff will incur future medical expenses in the
estimated amount of $5,200.00 as follows:
Ongoing treatment and physical therapy for hand injury

(letter from Dr. Norling, attachment 3-12) $1,800.00
Ongoing psychiatric treatment (letter from Dr. Tang,
attachment 3-13) $3,400.00
TOTAL $5,200.00
Loss Of Employment/Earnings. Plaintiff’s loss of employment/earnings claim is computed as follows:
Loss of earnings for 17-week period from date of injury until

plaintiff was released by her physicians to return to work,
at $2,317 per week (based on plaintiff’s average weekly
earnings for preceding six months, see paycheck checkfoils,
attachment 3-14) $39,321.00
Value of plaintiff’s client list lost when she was terminated
from her employment, based on estimated present value of
expected future commissions (amount approximate; correct
amount to be established by expert testimony of expert economist,
report will be furnished when available) $75,000.00
TOTAL $114,321.00
General Damages. Plaintiff claims general damages for pain and suffering in the amount of
$500,000. This claim is based in part upon documents establishing the nature and severity of plaintiff’s
injury and the mental trauma which she suffered.
Medical records, Desert Lake Hospital Copy attached, see

attachment 3-15
Medical records, Dr. Sayers Copy attached, see
attachment 3-16
Medical records, Dr. Norling Copy attached, see
attachment 3-17
Medical records, Dr. Carter Not yet received
Medical records, Dr. Tang Copy attached, see
attachment 3-18
Photographs of plaintiff’s hand Copies attached, see
attachment 3-19
4. Insurance. Rule 26(a) (1) (D) does not apply since there are no claims made against plaintiff herein.
DATED this _____ day of _____, 20__
SIMON & PORTER
_______________________
Allen Porter
(Certificate of service goes here—See Workshop 4 for details.)

8000 East Chaparral Road #422, Scottsdale, AZ, only Trevayne and McLane’s were present in the ho-
phone: 602-555-3857 (room 407); Mr. Chris Jansen, tel on the night of the incident. McLane’s house-
2326 E. Empire, Spokane, WA 99207, phone: 509-555- keeping crew was also present; you have asked Mr.
6947 (room 408, directly across the hall from Shan- Shapiro for the names and addresses of the workers
non’s room); Dr. Arthur Collins, M.D., 1154 Water- on the housekeeping crew but have not yet re-
ford Dr., Dallas, TX 75218, phone: 214-555-6888 ceived them.
(room 409, next door to Shannon’s room to the Hotel records: The hotel keeps the following
north); Mr. and Mrs. Barry Levine, 1518 N Shore Dr., records, among others: registration cards for
Moline, IL 61265, phone: 309-555-1445 (room 410, each guest; credit card slips for each guest bill
directly across the hall from Dr. Collins’s room); Dr. charged to a credit card; (computerized) ledger
Donald Gellman, D.D.S., 1005 Buhne Street, Eureka, sheets reflecting each guest’s itemized bill; com-
CA 95501, phone: 707-555-8525 (room 411, next puterized reservation system reflecting all hotel
door to Dr. Collins’s room to the north); Bruce reservations; computer files generated by the
Brown, 3844 West 4990 South, Salt Lake City, UT telephone system reflecting, for all outgoing calls,
84118, phone: 801-555-8879 (room 412, across the the room number placing the call, the number di-
hall from Dr. Collins’s room and one door to the aled, time of call, and duration, and for incoming
north). You have not interviewed any of these peo- calls, the room number receiving the call, time,
ple and you do not know whether any of them saw and duration; maintenance work order files re-
or heard anything. flecting all maintenance performed in the hotel;
Police report: The police investigating officer’s books of account reflecting the financial opera-
report reflects that Detective Sgt. Janet Marnell, Of- tions of the hotel; purchase orders reflecting all
ficer Edward Flanigan, and Officer Barbara Gold- purchases by the hotel; payroll records and, for
berg, all of Las Vegas Police Department, 400 Stew- hourly employees, time cards; personnel files for
art Ave, Las Vegas, NV 89101, phone: 702-555-3513, all employees of the hotel; housekeeping logs re-
responded to the scene. The report states that Mr. flecting the work done by each housekeeping
and Mrs. Carl Mitchell, 295 E. Shelbourne, Las Ve- crew on each shift; files on each contract entered
gas, NV 89123, phone: 702-555-4578, rode to the into with outside contractors for maintenance or
fourth floor in the same elevator as Dr. Collins im- construction work in the hotel; and correspon-
mediately before the incident. It does not indicate dence files containing all letters or memos written
what, if any, information they gave to the police. by management employees, including memos be-
Paramedics responding were Mr. Andrew Garrison, tween Banbury Park Hotel employees and head-
905 E. Desert Inn Road, #313, Las Vegas, NV 89109, quarters employees discussing the incident and
phone: 702-555-9059; and Mr. Manuel Rivera, 7327 the hotel’s liability exposure. Also, the hotel man-
Cherry Valley Circle, Las Vegas, NV 89117, phone: ager, Mr. Jamison, interviewed Arnold Trevayne
702-555-6831. and Donald McLane and took notes of the inter-
Hotel employees: The following individuals are views, and also did some investigation about the
hotel employees: Arnold Trevayne, 8354 W. Sahara condition of the door lock on Room 407, about
Ave., #238, Las Vegas, NV 89117, phone: 702-555- which he kept notes.
0867 (desk clerk on the night of the incident); Corby Insurance: At your instructor’s option, do one of
Jamison, 4656 Monument Valley Rd., Las Vegas, NV the following:
89129, phone: 702-658-3254 (hotel manager, Ban- Option 1: Assume that Park Hotels Group has the
bury Park Hotel); Marcos Davila, 1594 E. Viking Rd., following insurance: a vehicle liability policy cover-
Las Vegas, NV 89119, phone: 702-555-5254 (head of ing all vehicles owned by the company, issued by
maintenance department, Banbury Park Hotel); Associated Risks Insurance Co., Trenton, NJ; a
Carolyn Zale, 8815 Smokey Dr., Las Vegas, NV 89134, premises liability policy for the Banbury Park Hotel,
phone: 702-555-6233 (chief of housekeeping, Ban- covering liability involving injuries to persons on
bury Park Hotel); Charles O’Meary, 1516 Mancha the premises of the hotel, issued by Bonded Liabil-
Dr., Boulder City, NV 89005, phone: 702-555-6549 ity Insurance Co., Omaha, NE; a director’s liability
(head of bookkeeping department, Banbury Park policy covering acts of the corporate board of di-
Hotel); Ron Kanne, 5626 Alfred Dr., Las Vegas, NV rectors, issued by Old Faithful Insurance Co., New
89108, phone: 702-555-2645 (chief of security, Ban- York, NY; a group medical policy covering employ-
bury Park Hotel); Donald McLane, 4712 Arid Ave., ees of Park Hotels Group, issued by Health
Las Vegas, NV 89115, phone: 702-555-2874 (night Providers Corporation, Wilmington, DE; and a gen-
housekeeping crew supervisor). You have not yet eral liability umbrella policy issued by Affiliated
interviewed any of these except Trevayne. Of these, Reinsurance Company, New York, NY.
Option 2: Find out what kinds of insurance a chain You may be surprised at how helpful people are
hotel corporation operating in your locality would willing to be.)
be likely to have, and from what companies. Places 4. Assume that you have just received the U.S. dis-
to consult to obtain this information include your li- trict court’s order setting a scheduling confer-
brary, insurance company sites on the World Wide ence for the third Friday in April of the current
Web, and a local insurance agent or hotel manager. year. Assume that the attorney’s conference to
(Contacting strangers to get information is good prepare a discovery plan takes place on the last
practice for the work you will be asked to do as a lit- possible day. Date your Rule 26(a) disclosure
igation paralegal! If you are assigned option 2, be for the last day on which the disclosure can be
honest with those whom you contact, and tell them filed and still comply with the rules.
that you are a student working on an assignment.
PRACTICE POINTERS
Taking the Initiative
Lawyers are responsible for crafting legal theories and designing case
strategies but legal assistants are responsible for managing cases. They are
the ones that ensure that cases keep on track, that deadlines can and will be
met, that the necessary arrangements are made to secure documentation,
that clients are kept informed, and that a myriad of other details are attended
to. Consequently, legal assistants quickly discover that the more they are kept
informed about the status of a case and the more they are involved as the case
develops, the easier it is for them to manage the case.
Not all attorneys, however, are diligent about keeping their legal assis-
tants “in the loop.” Therefore, it behooves conscientious legal assistants to
take the initiative in asking questions and volunteering to assume responsi-
bilities that were not assigned them. Those who sit back and wait to be told
what to do next are unlikely to experience rapid advances in their profession.
They will always be adequate but never outstanding legal assistants. Those
who want to be granted greater responsibilities and allowed to assume a more
creative role will have to prove their capabilities. One of the best ways to be-
come irreplaceable to an attorney is to be the individual on whom they can
rely to see that cases progress in accordance with all court mandates and pro-
cedural rules and to prevent them from being surprised or unprepared at any
stage of litigation. To actualize this kind of role in a law firm, legal assistants
must assert themselves as professional members of a legal team.
TECHNO TIP
We have talked about using the World home page of the American Bar Asso-
Wide Web portion of the Internet with- ciation). Today most updated brow-
out speaking much about it. The web is sers can take you where you want to
that part of the Internet that allows go with just www.abanet. org be-
users to publish and post their own web ing entered. Some sites can be found
pages (the home page). Remember without the www prefix.
that e-mail and other Internet uses do The address of the web page is
not require either party to have their called a uniform resource locator (URL).
own web page. The http:// portion of the address
Older browsers required that the represents Hypertext Transfer Protocol.
complete address of the site you If you go to an ftp site (such as
wanted to get to be entered, such as ftp.isoc.org) you are using the File
h t t p : / / w w w. a b a n e t . o r g ( t h e Transfer Protocol.
FORMS FILE
Include a sample disclosure statement for your forms file. If

possible obtain at least two samples prepared by different firms so
that you have examples of different types of formats.
Summarize the applicable rules in your jurisdiction that govern
the substance and procedures surrounding the preparation,
submission, and response to disclosure statements.
KEY TERM
Disclosure statement
Depositions and
Working with Witnesses
WORKSHOP
13
INTRODUCTION: FINDING OUT procedure as practiced in the federal district courts
WHAT WITNESSES WILL SAY AND under FRCP, Rule 30. State court procedure is gen-
HOW THEY WILL SAY IT erally similar or identical; your instructor will ap-
prise you of any important differences in the prac-
At trial, the litigants tell their stories to the jury tice followed in the state courts of your locality.
mainly through the testimony of witnesses. The dis-
covery tools we have studied so far—interrogato- Your Local Notes
ries, document requests, requests for admissions,
and disclosure statements—are certainly useful, _________________________________________________
but they fall short in one important respect: They do _________________________________________________
not allow us to evaluate how witnesses will perform
while actually testifying. We can use interrogatories
to discover the general shape of a witness’s testi-
mony, but the impact that the witness has on the
ADVANTAGES OF DEPOSITIONS
jury depends greatly on the witness’s demeanor,
OVER WRITTEN DISCOVERY
manner of speech, body language, and a host of Why take a deposition? Depositions can be used for
other intangible factors that we can never assess a number of important purposes that we cannot
without actually seeing the witness in action. achieve with written discovery:
The mainstay of witness discovery is the depo-
■ Depositions allow us to find out exactly what
sition. A deposition is a proceeding in which the at-
the witness will say in response to specific
torneys ask questions and a witness, also referred to
questions. (As we have seen, answers to in-
as the deponent, answers them. In the vernacular of
terrogatories give us the opposing lawyer’s
litigation, if the witness’s name is John Doe, we may
carefully edited answer to our questions, not
speak of “taking John Doe’s deposition,” or we may
the witness’s answer.)
say that we are “deposing John Doe.”
Usually, a deposition is conducted at the office of ■ We can use depositions to take discovery
one of the attorneys. The witness is placed under from nonparty witnesses. Usually, written
oath, usually by a court reporter who is authorized to discovery can be directed only to someone
administer oaths. The judge is not present. The at- who is a party to the suit.
torneys’ questions and the deponent’s answers are ■ Depositions allow us not only to hear the wit-
recorded, either electronically or in shorthand by a ness’s answers to our questions but also to
court reporter. Later, the court reporter uses the observe the witness’s demeanor, body lan-
recording or shorthand notes to produce a written guage, and attitude.
transcript of the testimony—that is, a typed or ■ If a witness gives an evasive answer in a de-
printed booklet in which the questions and answers position, we can follow up immediately with
are reproduced, word for word. The attorney who additional questions.
scheduled the deposition questions the witness first;
■ In a deposition, we can follow the thread of
then the opposing attorney may take a turn if desired.
the witness’s story wherever it may lead,
When we schedule a deposition, we must notify
since we can continue asking questions.
all other parties so that they can attend. This is
done by serving a notice of deposition. Lawyers ■ The deposition transcript is a particularly ef-
and paralegals often use the shorthand phrase fective tool for cross-examination at trial, be-
noticing a deposition to refer to the process of cause it reflects the witness’s own words. If
scheduling a deposition and preparing and serving the witness gives an answer at trial that con-
the required paperwork. Depending on the circum- tradicts the answer given to the same ques-
stances, we may also issue a subpoena to the wit- tion in the deposition, we can read the wit-
ness to ensure her attendance. ness’s earlier answer from the deposition
In this workshop, we study the basic procedural transcript and show the jury that the witness
tools and concepts that you need in order to be able is not being truthful.
to use deposition discovery effectively as a parale- ■ We can use depositions as a substitute for
gal. We base our discussion on deposition discovery trial testimony in situations where the witness
460 WORKSHOP 13 Depositions and Working with Witnesses
cannot testify in person. For example, a wit- Your Local Notes

ness may be dying and not expected to be
available when the trial takes place or may be _________________________________________________
at some distant location. Then we can go to the _________________________________________________
witness, take a deposition, and read the depo-
sition (or, in an increasing number of courts,
show a video recording of the deposition) at
trial as a substitute for live testimony.
Depositions: Step-by-Step
PROCEDURAL GOALS Instructions
The goals that we seek to achieve through deposi- In this workshop, we will be concerned with three
tion discovery are several, and worth reviewing be- main aspects of deposition discovery procedure:
fore we begin exploring the procedural details: 1. The procedures to schedule a deposition, compel
■ We want to obtain information. Two of the the witness to attend, and produce a valid and us-
main purposes of a deposition are to find out able transcript. This aspect of deposition taking
what facts the witness can provide and to get is essentially clerical, but nevertheless impor-
leads to other sources of information. tant. For a deposition to take place, a number of
■ We want to pin down the witness’s story. Our people—court reporter, witness, attorneys—
questions need to cover the subject matter have to show up at the same place and the same
thoroughly, excluding all possible alternate time ready to proceed. Some of them may be ea-
versions of the facts, so that the witness has ger to seize any excuse not to appear. If all of the
no room to tell a different story at trial. elements do not come together as required, the
usual result is a gaggle of angry attorneys sitting
■ We want to finish with a usable transcript.
around, clocks running, with nothing to do to
This means avoiding procedural errors that
pass the time except to berate the unfortunate
would render the deposition or the transcript
paralegal who dropped the ball.
invalid; it also means making sure that the de-
position covers the right questions and an- 2. Planning and supporting the questioning. Parale-
swers, asked in the right way. gals do not conduct depositions—a licensed at-
■ We want to come away from the deposition torney must examine the witness—but parale-
with a clear idea of how to handle this witness gals can still have a role in the deposition itself.
at trial. What is the witness’s personality like? Paralegals are routinely assigned to prepare an
Are there particular kinds of questions that he outline of the subjects to be covered in the
has trouble with? Is he easily led? Prone to questioning. Paralegals often attend deposi-
blurt out poorly thought-out answers? Easily tions with their supervising attorneys and help
provoked to anger? the attorneys locate facts and documents
needed during the questioning. Therefore,
■ We want to lay the groundwork for cross- even though they will not be the ones asking
examination at trial. A deposition is a perfect the questions, paralegals need to understand
place to get a witness to commit to essential what the attorney is trying to accomplish, and,
facts that will prevent her from deviating from to do so, must grasp the strategic considera-
the story we want told at trial. tions underlying deposition questioning.
■ We want to avoid using good ammunition that
3. Using the deposition to best advantage after it has
is better saved for trial. Remember that there
been completed. In even a moderately complex
is no judge or jury at a deposition. It may feel
lawsuit, it is not unusual to have thousands of
good to “score points” on a witness in a depo-
pages of deposition testimony. To make effec-
sition and catch him lying, but doing so
tive use of the transcripts at trial, someone—
merely gives him plenty of time to think up a
often a paralegal—must organize, summarize,
better story before trial.
and index the transcripts so that important
A deposition is not, of course, the only tool available passages can be found quickly.
for accomplishing these goals. In fact, many litiga-
tors would depose a witness only if the witness is PREPARATORY STEPS
adverse or uncooperative, or if the witness may not
be able to attend the trial. See the sidebar on Alter- Before we can begin doing the paperwork neces-
natives to Taking a Deposition. sary to arrange depositions, we must first deter-
WORKSHOP 13 Depositions and Working with Witnesses 461
SIDEBAR
Alternatives to Taking a Deposition
Depositions offer a useful way of discovering what To take a tape-recorded statement, we begin by
a witness will say, but they also have a few drawbacks. asking the witness’s permission to tape record (usually
One is that the opposing attorney must be notified of after talking to the witness informally so as to obtain
a deposition in advance and will certainly attend. a general idea of what he will say). If the witness
Everything that we learn from the witness, our oppo- agrees, we then turn on the tape recorder and ask the
nent also learns. Worse, the opposing attorney will witness to confirm his willingness to be recorded. Then
have the opportunity to contact the witness in ad- we proceed with the interview, taking the witness
vance of the deposition and possibly provide some through his story in much the same way that we
coaching. Also, the opposing attorney will get a would in a deposition. At the end of the interview, we
chance to watch us in action as we question the wit- again ask the witness to confirm on tape that he is
ness, and she is likely to come away with a good sense aware the interview has been taped and has con-
of the strengths and weaknesses of our examination. sented to the taping.
When a Statement Is Preferable to a To take a written statement, we first interview the
Deposition witness, taking careful notes. We then use our notes to
prepare a summary of what the witness has said, being
When dealing with a friendly witness, therefore, we are
careful to capture the important points in simple declar-
often best advised not to take a deposition. (Our oppo-
ative sentences. It is not necessary for the statement to
nent may, of course, decide to depose the witness any-
be typed—given the choice between hand writing a
way, but in that case we are likely to refrain from ask-
statement and getting a signature then and there, or
ing any questions.) If a witness is cooperating, we do
going back to the office to have it typed and hoping that
not need a deposition to set up later cross-examination.
the witness will still be willing to sign when we return,
Even with a cooperative witness, however, there is we would opt for hand writing. When the statement is
always the risk of an unexpected change in story. We ready, we ask the witness to read and sign it. If the wit-
can easily guard against this hazard by taking a state- ness does not agree with a particular wording, we
ment from the witness. A witness statement is a writ- change it by interlineation and have the witness initial
ten or electronically recorded reproduction of a wit- the change. The statement should end with a recital that
ness’s version of the facts. It may be a word-for-word the signer has read its contents and that its contents are
reproduction of questions and the witness’s answers, or true on the basis of the witness’s personal knowledge. If
it may be a paraphrased summary of main points. Our we have access to a notary, we may have the witness’s
goal in obtaining a statement from a witness is to have signature notarized. Doing so is not necessary, but it
a piece of paper with the witness’s signature, or a adds an element of seriousness that may help make the
recording with the witness’s voice, which we could use witness think twice before changing his testimony. We
in court to prove what the witness told us if necessary. also have the witness sign or initial each page, so that
The advantage of taking a statement is that we can do no one can later argue that we replaced a page.
so without having to inform our opponent.
Uncooperative Witnesses: The Temptation to
How to Take a Witness Statement Tape
In terms of the mechanics, there are two main ways of Suppose you are interviewing a witness who has im-
taking a witness statement. Each has its advantages portant testimony to give, but seems unlikely to con-
and disadvantages. The first is to tape record the in- sent to taping or to sign a written statement. Can you
terview with the witness; the second is to write or type tape the interview without telling the witness? There
the main points of the witness’s testimony and have are two main kinds of surreptitious taping:
the witness sign. A tape recording captures every
■ Taping your own conversation with someone—for
word and produces maximum jury impact; however,
example, using a concealed tape recorder to
some witnesses “clam up” instantly at the sight of a
record your own interview with a witness.
tape recorder, and if the witness blurts something
that we would rather not have in our statement, there ■ Third-party taping—eavesdropping on a conver-
is no good way to get rid of it. With a written state- sation between other people when you are not a
ment, we can edit, paraphrase, and leave out extra- participant in the conversation. For example, tap-
neous comments. ping a witness’s telephone line.
SIDEBAR
Alternatives to Taking a Deposition continued
Third-party taping without the consent of offense to tape a face-to-face witness interview
all participants to the conversation is a criminal without the witness’s knowledge. The fact that
offense under federal law and under the laws of it is legal, however, does not make it a good
most states. Under certain circumstances law en- idea. Many people—including jurors—tend to
forcement officers can obtain court permission react quite negatively to the idea of secretly
to eavesdrop on the conversations of suspected tape recording someone. Surreptitious taping
criminals, but “bugging” is not an appropriate may also violate the rules of attorney ethics, de-
tool in civil litigation. pending on how your state’s bar association in-
Taping your own telephone conversation terprets them. All in all, great though the temp-
without the other party’s consent is legal under tation may sometimes be, the risks involved in
current federal law, but illegal under the laws of secretly taping conversations with witnesses
some states. Taping your own in-person, face- usually outweigh the rewards. As a paralegal,
to-face conversation with someone is usually le- do not even consider doing it without your su-
gal, so in most states it would not be a criminal pervising attorney’s express approval.
mine which witnesses we need to depose and when agement of deposition discovery. Here are the main
and where the depositions will take place. This points to consider in deciding how to schedule de-
seemingly easy task is more complicated than it ap- positions under the federal rules:
pears. Some of the participants may prefer that ■ Ordinarily, no party may schedule any depo-
there be no deposition, and will do everything pos- sitions until after the initial discovery plan-
sible to resist and delay. The order in which depo- ning meeting required by FRCP, Rule 26(f);
sitions are taken, and the timing of depositions in see FRCP, Rule 26(d). [However, depositions
relation to other discovery, can give one side or the can be taken earlier if all parties agree to do
other an advantage in the lawsuit. Typically, each so, see FRCP, Rule 30(a)(2), or if the person to
side would like to depose the other side’s witnesses be deposed is about to leave the country, see
first. We would prefer to know exactly what our op- FRCP, Rule 30(a)(2)(C).]
ponent’s witnesses will say, and get their stories on
the record, before having our own witnesses testify. ■ Each side may schedule depositions of up to
ten witnesses without court permission. All
the plaintiffs together make up one side and
Limitations on Deposition Scheduling under
all the defendants together make up the
the Federal Rules—Traditionally, in federal court
other. To depose any more witnesses after
and in state courts having procedures based on the
the tenth, a party must file a motion and ask
federal rules, deposition scheduling was somewhat
the court for permission [see FRCP, Rule
of a free-for-all. The old federal rules allowed any
30(a)(2)(A)] or get the opposing party to
party to schedule depositions of any witness for
agree.
any desired date, beginning immediately upon filing
the complaint. The rules did not give either party ■ Unless the judge orders otherwise [and some
the right to be first in taking depositions, and the judges do incorporate quite specific deposi-
process tended to degenerate into petty scheduling tion schedules into the scheduling order un-
feuds. Another problem was that it was becoming der FRCP, Rule 16(b)], after the discovery
standard practice for attorneys to depose every planning meeting, each side is free to sched-
person who could conceivably have anything to say ule its ten depositions at any time and in any
about the case, and to spend hours or even days on order desired; see FRCP, Rule 26(d).
each deposition. The cost of deposition discovery ■ Scheduling orders commonly include a dis-
was eclipsing even the cost of the trial itself, and covery cutoff date after which neither side is
making litigation prohibitively expensive. allowed to conduct further discovery. To take
The current federal rules place some limits on a deposition after the discovery cutoff date, it
the freedom of the attorneys to schedule deposi- is necessary to ask the judge for permission.
tions and give judges a more active role in the man- The answer will almost certainly be “no” un-
less there are unusually compelling reasons positions. The list that we will produce is, of course,
why the deposition could not have been com- subject to modification—we will undoubtedly add
pleted earlier. All routine depositions should and delete names as our understanding of the facts
be scheduled well in advance of the discov- increases.
ery cutoff, so as to allow some time for ma-
neuvering if something goes wrong (i.e., the Listing the Possible Witnesses—How can we de-
witness does not show up). cide who should be deposed? Our objective is to se-
lect the optimal list of deposition witnesses from all
■ In general, no party has any inherent right to
of the people whom we might conceivably depose.
have depositions take place in any particular
Who can be a deposition witness? There are very
sequence. If there is some important reason
few limitations. According to FRCP, Rule 30(a)(1), “A
why defendant ought to be allowed to depose
party may take the deposition of any person. . . .” Cer-
witness X before plaintiff deposes witness Y,
tainly, anyone who could testify at trial can be de-
the judge may order accordingly. Absent
posed. Unlike interrogatories and FRCP, Rule 34, re-
such an order, however, depositions may be
quests for production, we can use depositions to
noticed “in any sequence, and the fact that a
take discovery from witnesses who are not parties to
party is conducting discovery, whether by
the suit. If we attempt to depose a small child or a
deposition or otherwise, shall not operate to
person who is medically unstable, special arrange-
delay any other party’s discovery” [FRCP,
ments may be required (such as a psychologist or
Rule 26(d)].
doctor in attendance). To depose a witness who re-
■ Judges always have the power to intervene in sides in another state or country, we may have to
deposition scheduling, and also to dictate travel to the witness’s location. Additional proce-
what subject matter may be inquired about in dural steps are required to depose someone who is
a deposition. Both the opposing party and currently in prison. But, in general, the rules allow us
the witness to be deposed are free to move to depose whomever we wish, including corpora-
for a protective order under FRCP, Rule 26(c), tions and other entities (see sidebar).
to ask the judge to order that a deposition be Given the fact that there is a limit to the number
scheduled for a different date or that it not be of depositions we can take, how can we decide
held at all. Of course, the judge will not grant which witnesses are the most important to depose?
the motion unless the moving party presents You will sometimes see litigators simply start writ-
good reasons for doing so. ing down names (shooting from the hip is an occu-
Some state court rules impose much stricter pational hazard in litigation), but we can do better
limitations on the parties’ freedom to take deposi- if we attack the problem systematically. Instead of
tions, and call for correspondingly greater involve- relying on memory, we will prepare a list, as com-
ment by the judge in deposition scheduling. Your in- plete as we can make it, of every potential witness
structor will point out any important differences we can think of. Then we can select the best names
between the federal rules and the rules governing from the list, and be reasonably confident that we
the state courts of your locality. have not overlooked anyone. Our general strategy
is as follows:
Your Local Notes 1. We begin by listing everyone whose name ap-
_________________________________________________ pears in the case file and in our notes. We list
each witness named in our opponent’s disclo-
_________________________________________________
sure statement or answers to interrogatories.
We question our client carefully to identify
any other potential witnesses. As best we can,
Decide Which Witnesses Should we list anyone who may be in a position to
Step 1 Be Deposed help either our case or, more importantly, our
opponent’s case. If there are potential wit-
nesses whose names we do not know, we list
As we will see in Step 3, for each witness whom we
them according to their role (i.e., “scrub
intend to depose, we must give notice to the other
nurse who assisted operation”). We can al-
parties specifying the witness’s name and the date,
ways get names later via discovery or
time, and place of the deposition. Our first objec-
through investigation.
tive, therefore, is to produce a list of the witnesses
whom we want to depose. Then, in Step 2, we will 2. We add to the list any corporations or other en-
decide when and in what order to conduct the de- tities that we think may have useful information.
SIDEBAR the rules of the court in which the case is pend-

ing (in federal court, the ten-deposition limit).
Deposing a Corporation or 6. From the highest priority names, we make a fi-
nal list of the witnesses whom we will actually
Other Entity try to depose.
A deposition is a live proceeding in which the The most difficult aspect of this analysis is, of
lawyers ask questions and the witness answers course, assigning priorities and deciding which wit-
them. Therefore, obviously, there must be a natural nesses are the most important to depose. It is im-
person—a live human being—to answer the ques- portant to keep our goals clearly in mind. Our ob-
tions. But suppose we are suing (or defending a suit jective is not simply to gather a lot of information, it
by) a corporation. Have we lost the ability to make is to gather the information that will best help us
our opponent answer deposition questions? win the lawsuit. Therefore, as we consider each po-
No. FRCP, Rule 30(b)(6), expressly allows us to tential witness, we ask ourselves, “How would a de-
issue a notice of deposition and subpoena to “a position of this person advance our case?” In par-
public or private corporation or a partnership or ticular, we are concerned with the likely role of each
association or governmental agency. . . .” How can potential witness at trial. We can usually predict
a corporation testify? In the same way that it does which individuals our opponent is likely to call as
everything else—through human agents who are witnesses at trial to testify about the main issues in
empowered to act on its behalf. the case. These are the witnesses who have the po-
When we issue a notice of deposition to a cor- tential to win the case for our opponent, and the
poration or other entity, we must “describe with more we can pin down in advance what they are go-
reasonable particularity the matters on which ex- ing to say, the better prepared we will be to deal
amination is requested.” The entity must then “des- with them at trial.
ignate one or more officers, directors, or managing There are certain categories of witness whom
agents, or other persons who consent to testify on we will almost always depose unless the amount of
its behalf” concerning the topics specified. The des- money at stake in the lawsuit is too small to justify
ignated spokesperson is to testify “as to matters the expense. These include:
known or reasonably available to the organiza- ■ The opposing party. We need to find out
tion” [FRCP, Rule 30(b)(6)]. whether the opposing party has any relevant
factual information of which we are not yet
aware. Of equal importance, we need to pin
down exactly what our opponent claims the
facts are, in minute detail; otherwise, we
3. We revisit our issues outline and review each of leave her free to concoct a new story after
the factual matters that we will be required to seeing what the rest of the evidence shows.
prove. With each one, we ask ourselves
■ Any expert witnesses designated to testify for
whether there are any witnesses not yet on our
the opposing party, and any expert witnesses
list who could help us with the required proof.
appointed by the court. Litigants typically hire
We add them to the list.
expert witnesses to testify about highly spe-
4. Next, we go through the list carefully, consider- cialized and often complicated technical or
ing each name in turn, and ranking the poten- scientific issues that require a level of knowl-
tial witnesses in order of importance. edge and experience that most people—in-
5. We decide how far down the scale of “impor- cluding lawyers and paralegals—do not have.
tance” we need to go to prepare our case ade- To cross-examine an expert effectively, the
quately. This is to some extent a judgment call, lawyer must acquire at least a basic under-
but usually there will be a few witnesses at the standing of the subject matter about which
top of the list who clearly must be deposed, the expert will testify. Therefore, it is essen-
and others near the bottom who clearly need tial to know well in advance of trial exactly
not be. The point at which we draw the line will what the expert’s testimony will be.
depend in part on what is at stake in the case. ■ Eyewitnesses to the events at issue in the suit.
We are willing to spend more money taking de- For example, in an auto accident case, we
positions in a $50 million commercial case than would usually depose anyone who saw the
in a $5,000 fender-bender. We will also have to accident happen, unless the facts of the acci-
consider the restrictions, if any, imposed by dent are not seriously in dispute. In a medical
malpractice case involving a botched surgi- nent’s witnesses are likely to feel more at ease and
cal operation, we would depose any nurses, the opposing attorney can easily engineer interrup-
anesthetists, and others present in the oper- tions any time the witness encounters difficulty with
ating room. our questioning. There is also the question of cost.
■ Individuals directly involved in a disputed If we schedule our depositions for our own office, we
transaction. In lawsuits arising not from phys- avoid the time and expense of travel. We and our su-
ical events like accidents but from business pervising attorney can do other work until all other
or financial disputes, there are not necessar- participants are ready to proceed, instead of sitting
ily any eyewitnesses as such, but there are in- around in some other lawyer’s reception area wait-
dividuals who participated directly in the ing for the court reporter to show up.
transactions that led to the lawsuit. These are In a few situations, we may decide that it is bet-
prime candidates for depositions. Suppose, ter to go to the witness than make the witness come
for example, that you represent a client who to us. If we are deposing our opponent’s star med-
bought a used car from a dealership, only to ical expert, for example—for whose time we will be
find out later that the car’s odometer had billed at rates sometimes in excess of $1,000 per
been rolled back to show much less than the hour—we would rather not pay for the witness to
true mileage. In your fraud suit against the sit around in traffic. And with out-of-town wit-
dealer, it would be natural to depose the nesses, we may have no choice but to travel to the
salesperson who dealt directly with your witness; the rules do not allow us to force a witness
client. to travel more than 100 miles to attend a deposition;
see FRCP, Rule 45(b)(2) and (c)(3)(A). As a practical
Beyond these “key” witnesses, the decision of matter, for out-of-town depositions we will usually
whom to depose is a judgment call mainly involving borrow the office of some obliging local attorney.
a trade-off between the amount of money we can af-
ford to spend on discovery and the expected value
Your Local Notes
of the information to be obtained. One common mo-
tivation for additional deposition-taking is to look _________________________________________________
for documents. See the sidebar on Deposing Custo- _________________________________________________
dians of Records.
Your Local Notes

_________________________________________________ Order and Timing—When should we schedule
each deposition? Should we aim for early deposi-
_________________________________________________ tions, so as to pin down facts before our opponent
has a chance to manipulate them too much? Or
should we wait until later, when our written discov-
Decide Where, When, and in ery is further along and we are factually better pre-
Step 2 What Order to Schedule the pared? Which witnesses should we depose first?
Depositions As a general rule, we may depose each witness
only once. To depose the same witness more than
Once we have arrived at a final list of names of per- once, we must first obtain the judge’s permission
sons to be deposed, we must then decide where, [see FRCP, Rule 30(a)(2)(B)] and the opposing at-
when, and in what order to depose them. These de- torney will surely resist. Therefore, we must se-
cisions depend on the circumstances of each indi- quence our depositions carefully, so that informa-
vidual case, but we can offer a few general guide- tion needed for later depositions can be obtained in
lines, as discussed next. the earlier ones.
As a matter of personal style and preference, we
Location—The preferred site for a deposition is would generally depose the opposing party as early
usually a conference room at our own law office. We as possible. When we depose an opposing party, the
want to create an atmosphere of formality and con- most important objectives are to find out exactly
trol, in which the witness will feel psychological what our opponent is claiming and make him go on
pressure to take the proceeding seriously and op- the record with as much factual detail as possible.
posing counsel will find it more difficult to distract There is no compelling need to depose others first.
us from our purpose. This is why we would usually Document-gathering depositions and custodian
avoid conducting any important deposition at the of records depositions are also taken early in the
office of the opposing attorney, where our oppo- case. We need to build a full set of documents as
SIDEBAR
Deposing Custodians of Records
We have learned how to use subpoenas and Rule want to do this—after all, could we not simply issue a
34 requests for production of documents to obtain document request for “all documents” containing the
needed records from others. These tools, useful as they type of information that we want, and put the onus on
are, have two major inadequacies: (1) They do not the opposing party to find them?
give us any way of verifying that we are really getting This question illustrates an important principle
all of the documents we asked for, and (2) to use them, about discovery in litigation. In seeking information,
we must already know what documents or categories we can adopt a passive strategy, in which we depend
of documents to ask for. on our opponent to obey the rules and respond dili-
Fortunately, we have at our disposal another tool gently to our discovery requests. Or, we can take a
that can help us overcome both of these limitations: “proactive” stance, in which we assume our opponent
the custodian of records deposition. As we have will probably try to hide or withhold information that
learned, we can issue a subpoena to a business or en- might help our case, and we insist on checking every
tity, specifying the subject matter of the desired testi- possible detail ourselves. Cynical though it may seem,
mony, and the rules require the business or entity to the latter approach wins more lawsuits.
designate an individual to testify about that subject. Another reason for using a deposition to find out
Here, we issue a subpoena in which the specified sub- what records exist is that many records today are kept
ject matter is the nature and contents of the records electronically rather than on paper. This allows com-
kept by the business or entity. Often, this is done in a panies to keep much more complex and detailed
kind of shorthand way by issuing the subpoena in the records than was possible in the days of paper files.
name of, for example, “Custodian of records of Ajax Twenty years ago, it might have been possible for an
Widget Corporation,” and serving it on Ajax Widget experienced lawyer to make an accurate guess about
Corporation. Everyone understands that Ajax Widget what kinds of records a company might have; today,
Corporation is to designate someone who knows with the explosion of computerized record keeping, it
about its filing system and records to respond to the would be foolhardy to try.
subpoena. Your instructor will inform you of the cus-
Once we have determined in detail exactly what
tomary way of noticing a custodian of records deposi-
records the entity has, we can then zero in using doc-
tion in your locality.
ument subpoenas and Rule 34 requests to obtain the
Our purpose at the deposition is to find out every- specific information we want, and be reasonably con-
thing we can about the way in which the entity keeps fident that we have found everything there is to find.
its records. You may be wondering why we would
early as possible, to use as a basis for other factual Creating a Tentative Schedule—At this point,
development. we have decided, at least on a preliminary basis,
Expert witness depositions are usually left for which witnesses to depose, in what order to depose
later in the discovery cycle. Expert witnesses typi- them, and at approximately what stage in the case
cally offer opinions based on the facts they are we would like to conduct each deposition. Now we
given, and the facts they are given often come in come face to face with the realities of litigation
part from depositions of other witnesses. In any scheduling: A deposition requires a number of very
case, we certainly want to receive and digest the ex- busy people—two or more attorneys, a court re-
pert’s written report before taking her deposition, porter, and a witness—to coordinate their busy cal-
and probably go over it in detail with our own endars so as to be at the same place at the same
expert. time. At least some of them—the opposing attorney
In the end, timing and sequence of depositions and the witness—may not be very inclined to coop-
is a matter of judgment, usually involving choices erate. How can we select specific dates and times
between imperfect alternatives. After you have that will satisfy all of these people?
gained some experience as a litigation paralegal, The process varies somewhat depending on lo-
you will develop a feel for deposition scheduling cal custom. Some attorneys in some jurisdictions
and sequencing; meanwhile, when in doubt, consult routinely notice depositions without regard to any-
your supervising attorney. one’s calendar but their own. If one of the other par-
ticipants has a conflict with the date and time se- the witness to produce documents at the deposi-
lected, too bad! He can ask the judge to order a dif- tion (Step 5).
ferent one. There is nothing specific in the federal
rules that prohibits us from scheduling depositions
for whatever reasonable dates and times we Step 3 Notice the Deposition
choose, however inconvenient they may be for
other attorneys or for the witness.
As a practical matter, however, if we notice a de- FRCP, Rule 30(b)(1), states that “A party desiring to
position for a date when, say, the opposing attorney take the deposition of any person . . . shall give rea-
is in trial on another case, she will probably not sonable notice in writing to every other party to the
bother asking the judge for a different date. Instead, action.” The notice is to state “the time and place
we will receive a letter politely informing us that no for taking the deposition and the name and address
one is going to show up on the date we selected. of each person to be examined. . . .” The purpose of
Then it will be up to us to ask the judge to order that the notice of deposition is to let the other litigants
the deposition proceed, which the judge cannot know of the deposition so that they can attend, par-
very well do if opposing counsel has to be some- ticipate, and make objections.
where else that day. In the end, we will have wasted In practice, notices of deposition are usually one-
a lot of time, annoyed the judge, and, most impor- page printed or word processor forms. They have
tant, will not be any closer to getting the deposition the usual caption, signature line for the attorney, and
taken than when we started. Therefore, it usually certificate of service. The body of the notice typi-
makes sense to try to coordinate deposition sched- cally contains blanks in which the name and address
uling with the opposing attorney. Often, we can get of the witness and the date, time, and place of the de-
what we need by simply telephoning her secretary position can be filled in. See Figure W13–2 later in
and asking for open dates. this workshop for a sample notice of deposition.
Must we also coordinate with the witness? Un- FRCP, Rule 30, requires us to serve a copy of the
less the witness is someone “important” such as a notice of deposition on the attorney for each other
doctor or government official, courts tend to dis- party to the suit. We do this by mailing or hand de-
play surprisingly little consideration for the wit- livering a copy to each attorney’s office in accor-
ness’s schedule. Testifying is seen as a civic duty, dance with FRCP, Rule 5(b). We file the original no-
and the inconvenience of testifying is simply the tice with the clerk of the court.
price of good citizenship! It is not unusual for
lawyers to serve a subpoena on a witness and ex- Your Local Notes
pect him to drop everything and show up for a de- _________________________________________________
position or trial appearance 2 or 3 days later. Nev-
ertheless, there is nothing to prevent us from _________________________________________________
contacting the witness (as long as the witness is not
a party represented by an attorney) and trying to
accommodate his schedule. The witness’s testi- Court Reporters and the Alternatives—FRCP,
mony may turn out to be friendlier to our client if we Rule 30(b)(2), also requires us to state in the notice
act with courtesy rather than arrogance. “the method by which the testimony shall be
The court reporter’s schedule usually presents recorded.” Most often, depositions are recorded
little problem as long as we are able to give reason- stenographically by a court reporter using a short-
able advance notice. For depositions that we sched- hand machine. The machine operates in a manner
ule, we select and pay the court reporter, and if our similar to a typewriter, but it types in a special
chosen court reporter cannot accommodate us we shorthand code onto a paper strip and/or com-
can always select a different one. puter disk. Its keys are designed for fast input, so
that an experienced court reporter can take down
testimony faster than a witness can talk. The court
CLERICAL STEPS
reporter later uses a computerized transcription
Suppose we have decided to depose a particular device to “read” the shorthand code and produce a
witness, and we have selected a date, time, and printed booklet containing a word-for-word tran-
place for the deposition. Let us now review the pro- script of everything said at the deposition.
cedural steps that are necessary to make the de- It is up to the party noticing the deposition to
position happen. These include giving the required arrange for a court reporter to be present. Some-
notice to other parties (Step 3) and ensuring that times, if a law firm has an ongoing relationship with
the witness will attend (Step 4). We may also want a firm of court reporters, this is done by sending a
copy of the notice of deposition to the court re- reporter and be sure of a usable record than to try
porter firm. Or we may make arrangements with the to save a few dollars and risk losing some crucial bit
court reporter by telephone. of testimony because someone forgot to turn over
Court reporter fees comprise a significant part of the tape! Also, even if we record the deposition elec-
the cost of deposition discovery. The party noticing tronically, we will still need a written transcript to
the deposition pays for the court reporter’s services, work from, and if we hire a court reporter to make
and for the original transcript to be filed with the the recording, we will get one.
court. Court reporters typically bill at a fixed rate per
page of transcript; at this writing, customary West Your Local Notes
Coast metropolitan area court reporter fees are up-
_________________________________________________
wards of $5 per double-spaced typed page. A typical
2- or 3-hour deposition can easily run well in excess _________________________________________________
of 100 pages.
You may be wondering why the practice of tak-
ing down deposition testimony in shorthand con- Consequences of Not Giving Notice—Suppose
tinues, in an age of tape recorders, video cameras, a clerical error occurs and the notice of deposition is
and even computers with voice recognition capa- never sent out to one or more of the attorneys for the
bilities. In fact, the current federal rules allow us to other parties. Then what? According to federal case
choose between “sound, sound-and-visual, or law, the deposition cannot be used against the party
stenographic” recording. Why not get out our video who was not given notice—even if the party or his at-
camera, save hundreds of dollars, and, as a bonus, torney knew about the deposition from other sources.
finish up with a recording that reflects not just the In small, routine lawsuits, this issue is unlikely to
words spoken but also gestures, tone of voice, and arise, because there is only one party on each side
body language? and the mistake will be obvious when his attorney
There are several reasons why court reporters does not show up at the deposition. In complex
are unlikely to be rendered extinct by video cam- cases, however, where there may be many plaintiffs
eras. One is that a deposition must be taken in the and defendants, and attorneys pick and choose
presence of “an officer authorized to administer which depositions to attend, failure to serve notices
oaths by the laws of the United States or of the properly can lead to a nasty surprise later when the
place where the examination is held . . .” [FRCP, Rule judge excludes important deposition testimony.
28(a)]. Court reporters are authorized to adminis-
ter oaths, and typically act as the FRCP, Rule 28, of-
ficer in addition to taking down the testimony. Cer- Take Steps Necessary to Secure
Step 4 Attendance of Witness
tainly, we could find someone else authorized to
administer oaths—appointment as a notary public
suffices—but FRCP, Rule 28(c), prohibits anyone Having satisfied the notice requirement of Rule
who is an employee of any party’s attorney from 30(b), let us now consider what must be done to en-
presiding over a deposition, so we could not use sure that the deponent will appear for the deposi-
any of our own employees. tion at the designated time and place. Is serving the
There are also certain advantages to steno- notice of deposition enough or must we do some-
graphic recording over video. Experienced court re- thing else?
porters are able to distinguish and correctly tran- The answer depends on whether or not the de-
scribe words under conditions that would render ponent is a party. Although the rules do not ex-
an electronic recording unintelligible, such as when pressly say so, serving a notice of deposition desig-
the witness is mumbling or facing away from the mi- nating a party as the witness is sufficient to compel
crophone, or when two people speak at the same the party to attend. If the witness is not a party, then
time. And video recordings record everything, warts the correct procedure is to serve a subpoena.
and all. If the attorney doing the questioning seems FRCP, Rule 45, spells out the procedure for is-
to be struggling, pausing frequently, or saying suing and serving a subpoena and describes the re-
“umm” a lot, the resulting video may be rather un- quired contents. We have already explored sub-
flattering. poena procedure in detail in Workshop 9 on
As a practical matter, even when using sound or document discovery. The procedure for issuing and
video recording to take a deposition, most attor- serving a deposition subpoena is identical to that
neys hire a court reporter to operate the recording described in Workshop 9, except that a deposition
equipment. Most court reporting firms now offer subpoena includes the date, time, and place of the
video recording as an option. Better to pay a court required appearance.
The sole purpose of serving a subpoena is to To obtain documents from a witness who is
force the witness to attend (and, perhaps, to pro- also a party, a FRCP, Rule 34, request for produc-
duce documents). Failure to issue a subpoena tion of documents is the obvious choice. FRCP,
does not render the deposition invalid, assuming Rule 30(b)(5) provides “The notice to a party de-
the witness shows up and testifies voluntarily. As ponent may be accompanied by a request made in
a general rule, however, we recommend issuing a compliance with Rule 34 for the production of
subpoena, even to a witness who is willing to ap- documents . . . at the taking of the deposition. The
pear without one. If we do not subpoena the wit- procedure of Rule 34 shall apply to the request.”
ness, the witness is under no legal obligation to There is a significant disadvantage to a FRCP, Rule
appear. If the witness has a last minute change of 34, request compared to a subpoena. The re-
heart, or decides to move to another state the sponding party has 30 days to respond to a FRCP,
day before the deposition, we have no recourse Rule 34, request for production of documents. In
other than to reschedule the deposition and try the context of deposition scheduling, 30 days is a
again with a subpoena—which, depending on the relatively long time; subpoenas are routinely is-
discovery schedule and deadlines, we may not sued with much shorter response times. Could we
have time to do. Better to do the job right the skip the FRCP, Rule 34, request and use a subpoena
first time. to obtain documents from a party, thereby cir-
cumventing the 30-day response time? Federal
Your Local Notes case law says no, but litigators still occasionally
try this tactic.
_________________________________________________
One drawback of using either a FRCP, Rule 34,
_________________________________________________ request or a subpoena to make a witness bring doc-
uments to a deposition is that we will have little
time to digest the documents. Usually, when a wit-
ness brings documents to the deposition, the
lawyer conducting the deposition asks to see the
Take Steps Necessary to Ensure documents and spends a few moments perusing
Step 5 Availability of Documents them before beginning the questioning. But it is
hard to conduct a thorough review with the wit-
Deposition testimony often involves documents. If, ness, the court reporter, the client, and one or more
for example, we are deposing the doctor who opposing attorneys all sitting there staring into
treated the injuries for which plaintiff is suing, we space waiting for the deposition to begin. There-
will certainly want to see plaintiff’s medical records fore, if the discovery schedule allows enough time,
and ask the doctor questions about what is and unless the expected documents are few and
recorded in them. Some of the documents that we simple, it is better to obtain documents beforehand.
use in a deposition will already be in our possession
as a result of FRCP, Rule 34, document requests and Your Local Notes
other discovery. Quite commonly, however, we
_________________________________________________
want to see documents that are in the possession of
the witness and that we do not yet have. _________________________________________________
If the witness is not a party, the solution is sim-
ple: Subpoena the documents with the witness.
FRCP, Rule 45, allows us to include both a command
to appear and testify and a command to produce ev-
idence in the same subpoena. FRCP, Rule 45(a)(1),
PLANNING AND TAKING
provides, “A command to produce evidence . . . may
THE TESTIMONY
be joined with a command to appear . . . at deposi-
tion, or may be issued separately.” There is one ad- We now turn our attention from the clerical as-
ditional procedural hoop to jump through: If we pects of scheduling a deposition to the content of
subpoena documents from a nonparty witness, our the testimony to be taken. Obviously, the specific
notice of deposition must say so. “If a subpoena subject matter areas to be covered in a deposi-
duces tecum is to be served on the person to be ex- tion depend greatly on the facts of the case and
amined, the designation of the materials to be pro- the relationship of the witness to them. There are,
duced as set forth in the subpoena shall be at- however, some guiding principles that apply in
tached to, or included in, the notice [of deposition]” most situations. We explore these principles in
[FRCP, Rule 30(b)(1)]. Steps 6 and 7.
Prepare a Topic Outline for Use ument information into it as the documents are re-
Step 6 by the Attorney Who Will ceived. Then we can query the database for a list of all
Conduct the Deposition the documents in which the witness’s name appears.
After we have reviewed the issues outline, the
Our goal in this step is to assemble the information case file, the discovery documents, and any other
that our supervising attorney will need in preparing likely sources of ideas, we pull our notes together
for the deposition. This will consist of an outline set- into a final outline for use by the attorney who will
ting forth suggested topics and questions, accompa- conduct the questioning. We assemble copies of all
nied by copies of all discovery documents that may the pertinent documents and check to be sure that
be pertinent. The documents that the attorney de- we have included all relevant documents.
cides to use in the deposition will be marked and des-
ignated as exhibits (see the Using Exhibits section in The Attorney’s Role—Helpful though the parale-
Step 8). As we add topics and questions to our out- gal’s outline is, it is not a substitute for proper prepa-
line, we also note which documents relate to each. ration by the attorney who will conduct the deposi-
The attorney will use our outline and documents as a tion. The paralegal’s job is to make sure that no
starting point from which to plan the questioning. important subject matter is overlooked; it is the at-
torney who must make the strategic decisions about
The Paralegal’s Job in Preparing for a Deposi- what questions to ask, what subjects to avoid, how
tion—Our role as paralegals is to review thoroughly to phrase the questions, and in what order to cover
all available sources of information, to address every the topics. The attorney’s final plan for the deposi-
possible point on which the witness may have infor- tion, whether expressed in the form of an outline,
mation to contribute. Ideally, our outline and the ac- scribbled notes on a legal pad, on index cards (our
companying package of selected discovery docu- own preference) or in some other way, may bear
ments should together comprise every bit of rather little resemblance to the paralegal’s outline.
information that the attorney needs to consult in From the attorney’s standpoint, a successful de-
preparing for the deposition. There should be no position is the result of thorough preparation com-
need for the attorney to dig through the file looking bined with a willingness to be flexible. As a litigation
for additional facts if we have done our job well. paralegal, you will see many different styles of de-
How do we produce the desired outline? As position questioning. New lawyers sometimes make
with most planning tasks in litigation, we will do the mistake of trying to “script” a deposition as
better if we look for topics in a systematic way though it were a stage production, writing out each
rather than relying on memory and trying to pick question verbatim. Others “shoot from the hip” with
topics out of the air. The issues outline is a good little preparation. Neither extreme works very well.
place to start; we can review the issues point by Fail to prepare thoroughly enough, and we will for-
point, asking ourselves whether this witness is get to cover some important topic. Plan in too much
likely to contribute anything on each issue. We may detail, and instead of following the witness’s an-
also skim through the file, or at least the main plead- swers wherever they lead, we will be trying to force
ings, looking for ideas. As questions or topics of in- the testimony to fit our planned questions.
quiry occur to us, we jot them down. Our own preferred way of preparing for a depo-
One of the most important sources of deposition sition consists of writing broad topics on index
subject matter is the set of documents gathered in dis- cards, one topic per card. On each card, we write a
covery. Any documents in which the witness’s name short reminder of what it is we want to cover. Usu-
appears—especially any authored by the witness— ally, we avoid writing out specific questions, but if
should be set aside, copied, and considered as possi- there are particular questions about a topic that we
ble material to ask about in the deposition. Any docu- want to be sure to word in a particular way, we may
ments describing events that the witness observed or write them on the card too, or write them on a sep-
transactions in which the witness participated should arate card. We also note on each card any docu-
be set aside, as should any documents needing au- ments that we may want to refer to in connection
thentication by this witness. In a smaller case where with the card’s topic.
the quantity of documents is manageable, we may go The advantages are several:
through the documents by hand looking for potential
■ It is easy to add topics.
deposition documents. In a complex case where the
discovery documents may comprise many thousands ■ Because of their size, index cards inherently
of pages, it is impractical to review every document discourage the inclusion of too much detail.
for every deposition; better to set up a computerized ■ It is easy to change the order of topics, both
document retrieval database and enter all of the doc- before and during the deposition. In a depo-
sition, it is undesirable to adhere slavishly to attorney often is, she will sometimes fail to
the logical sequence of an outline. Often, par- notice when the witness gives an answer that
ticularly with adverse witnesses, it is desir- does not fully answer the question asked.
able to jump around, change topics in mid-
stream, and return to topics already covered Using Exhibits—Often, while questioning a wit-
to make the questioning unpredictable and ness in a deposition, we will want to refer to docu-
keep the witness off balance. The use of index ments. These may be documents that we have al-
cards facilitates this. ready obtained through discovery or investigation
or from our client, or documents brought to the de-
■ As we will see, there are certain questions
position by the witness.
and areas of inquiry that we will pursue in al-
We are free to refer to documents by naming or
most every deposition. We can reuse the in-
describing them (i.e., “the construction contract”
dex cards pertaining to these standard topics
or “your divorce decree”), but if we do that, it may
in deposition after deposition, honing our
be hard to prove later on which document the wit-
technique and noting ideas and improve-
ness was talking about. What we need is a way to
ments on the cards.
put a document into the deposition record so that
■ Before adjourning the deposition, we can anyone referring to the transcript can see the
quickly run through the cards, and check that same document that the witness was looking at
we have covered every issue we intended to when she testified. We do this by marking docu-
cover. ments as exhibits.
To use an exhibit in a deposition, we first hand
the document to the court reporter to be marked.
Step 7 Assist at the Deposition The court reporter will stamp the document with an
exhibit stamp, write an exhibit number on it, and
note in the shorthand record a brief description of
Although paralegals do not conduct the question- the document. As a matter of courtesy, it is cus-
ing in a deposition, they do commonly attend and tomary to provide copies of the document to the at-
assist. Here are some functions commonly assigned torneys for other parties who are attending the de-
to paralegals at a deposition: position. We use the stamped copy to show to the
■ Keeping track of documents and exhibits. witness.
When an exhibit is marked, it is customary to What sort of a numbering system is used for ex-
provide copies for each opposing attorney. hibits? The answer is up to the attorney, and varies
Particularly in a deposition involving a large according to personal preference and local custom.
number of documents, it is very helpful to The question deserves some thought, however, par-
have a paralegal present to locate exhibits ticularly in cases involving large volumes of docu-
and distribute the copies. ments. If, for example, we let the court reporter
start numbering from “Exhibit 1” in each deposi-
■ Helping keep track of what topics have been
tion, and we take ten depositions, we will wind up
covered and what loose ends remain. Deposi-
with ten “Exhibit 1’s.” If we have to refer to deposi-
tion questioning often jumps from topic to
tion testimony involving several of these “Exhibit
topic in an unpredictable way as the attorney
1’s” at trial, we may confuse the jury—and possibly
follows new threads raised by the witness’s
ourselves. Our preferred solution is to assign num-
answers. The paralegal can help by keeping
bers to the most important documents in a case se-
notes of the extent to which each topic has
quentially, starting from one, before ever taking de-
been fully explored, and sharing this informa-
positions, then use the same numbers for the same
tion with the attorney during breaks in the
documents in all the depositions, and, if the judge
questioning.
will allow it, at trial. When we mark additional doc-
■ Observing the witness and making notes of the uments on the fly at a deposition, we start with
witness’s demeanor and reactions to questions. whatever number we left off with in our global num-
A good deal of the attorney’s attention in a de- bering system. This means that, in a given deposi-
position is occupied with the mechanics of tion, the numbers may not start with “1” or run in
phrasing questions. The paralegal is in a po- sequence, but we avoid having more than one doc-
sition to pay closer attention to the witness’s ument with the same exhibit number. This system
body language and behavior. offers the added advantage of allowing us to refer to
■ Helping detect evasive or unresponsive an- documents by their global exhibit number while
swers. As absorbed in the questioning as the preparing and taking notes.
number of questions, which you are

Your Local Notes
required to answer. The court re-
_________________________________________________ porter, whom you see seated here
_________________________________________________ on your right, will take down my
questions and your answers, and
everything else that is said here to-
day, word for word, and prepare a
What to Expect at a Deposition—Let us now de- printed transcript. The testimony
scribe the sequence of events at a typical deposi- you give here today will appear ver-
tion. We will assume that the deposition we are de- batim in the transcript, and can be
scribing is one that we ourselves have noticed, and used or quoted at the trial or in
that it will be held at the offices of our own law firm. other proceedings in this lawsuit.
As the time for the deposition nears, we check Do you understand all that?
to be sure that the conference room we have re- Witness: Yes.
served is in order and that our copies of documents Attorney: Your testimony here is under oath,
are ready to go. When the court reporter arrives, the same as if you were testifying
the firm’s receptionist shows him to the conference in court in front of the judge. Do
room to set up whatever recording equipment will you understand that?
be used, typically a shorthand machine. Witness: Yes.
If the witness is an opposing party or someone Attorney: Please take care to answer ques-
who is cooperating with the opposing party, she tions audibly, because the court re-
will often arrive in the company of the opposing at- porter cannot interpret nods and
torney. The receptionist will wait until the witness shakes of the head, okay?
and all of the attorneys expected to attend have ar- Witness: Okay.
rived, then notify the attorney who will conduct the Attorney: Mr./Ms. _____ [the opposing attor-
deposition that all is in readiness. ney] may object to one of my ques-
Customarily, the court reporter sits at the head tions from time to time. If that hap-
of the conference table, so as to have the best van- pens, the court reporter will
tage point from which to hear all participants. The record the objection so that the
witness sits at one side of the table adjacent to judge can consider it later, but you
the court reporter. The attorney who will conduct will go ahead and answer the ques-
the questioning sits at the opposite side of the tion. Do you understand that?
table, facing the witness, and the assisting paralegal Witness: Yes.
sits next to the attorney. Usually, the opposing at- Attorney: If you do not understand any of my
torney sits next to the witness. questions, it is important that you
After introductions and, perhaps, a few mo- tell me so that I can rephrase the
ments of polite interchange of pleasantries, the pro- question until you do understand
ceeding begins by the court reporter swearing in it. Will you do that?
the witness. This is done in exactly the same man- Witness: Yes.
ner as in court, with the witness raising her right
hand and swearing to tell the truth. Then the ques- You may sometimes see attorneys follow the
tioning begins. last question with another along the following
The attorney begins by asking the witness to lines: “So if you do go ahead and answer a question,
state her name for the record. We would usually we will assume that you did understand it, okay?”
also ask for the witness’s current address and tele- The intent is to prevent the witness from later
phone number, to make it easier to contact the wit- weaseling out of an answer by claiming to have mis-
ness in the future should the need arise. After these understood the question. However, to ask the wit-
identification questions, many attorneys ask ness to agree, in advance, to having understood
whether the witness has ever been deposed before, questions that have not yet been asked is mislead-
and then describe the ground rules for the pro- ing, and should be objected to—after all, it is pos-
ceeding to the witness. Here is a typical introduc- sible for a witness to misunderstand a question
tory speech by an attorney taking a deposition: without realizing it.
Attorney: Have you ever had your deposition Once the preliminaries are attended to, the
taken before? questioning gets under way in earnest. Absent un-
Witness: No. usual circumstances, the first phase of questioning
Attorney: Let me begin by explaining a few should be aimed at getting the witness to tell her
ground rules. I will be asking you a story in her own words. Suppose, for example, we
are deposing someone who witnessed an auto acci- map as an aid in clarifying where people and ob-
dent; a good first question would be “I understand jects were situated during the events that the wit-
that you witnessed the accident that led to this law- ness is describing; the drawing can be marked as an
suit—please tell me what you saw.” The next ques- exhibit and included in the record.
tion, and the next one after that, for as long as it Notice that, so far, we have not even needed to
takes to get the whole story, should be “What hap- glance at our topic outline or notes—we are simply
pened next?” We are much more likely to get testi- following the witness’s narration wherever it leads.
mony that we can use if we let the witness narrate Only after having the witness narrate her story in as
as much as possible, than if we try to force the tes- much depth and detail as possible, do we get out
timony into our preconceived factual theories via our index cards or notepad and start asking specific
narrow questions. questions. Even then, our questions will likely have
In this respect, deposition questioning is much to be reshaped to fit what the witness has already
different from cross-examination in court. You may told us. As we go through our notes, we are likely to
have heard or read the adage that, in cross- find that some topics have already been fully or par-
examining an adverse witness, a wise attorney never tially covered in the witness’s narration. As we ask
asks a question unless the answer is known in ad- questions to fill in the gaps, we may jump around
vance. To violate this rule is to invite the witness to from topic to topic rather than proceed in a pre-
drop some unexpected bombshell that may leave an dictable order. If there are facts that the witness is
otherwise effective cross-examination in tatters. In a trying to keep from us, they are more likely to slip
deposition, however, we want bombshells—if there out if the order of questioning is unpredictable, so
is anything that the witness can say that can hurt that the witness has less time to anticipate ques-
our case, we want to know about it here and now. tions and engineer evasive answers.
After the witness has been given ample oppor- While we are doing all this, the opposing attor-
tunity to relate her story, we then back up to fill in ney is not, of course, sitting quietly and letting us do
gaps and pin down details. While narrating, wit- whatever we want. The opposing attorney has an
nesses are often imprecise about times and loca- important role to play at a deposition, one that we
tions; it is important to go back and ask the witness explore in the following sidebar.
when and where each event took place and who
else, if anyone, was present. The witness may have
Your Local Notes
referred to documents while telling her story; if so,
we need to mark them as exhibits and have the wit- _________________________________________________
ness identify them on the record (see the Using Ex-
_________________________________________________
hibits section in Step 8). Another useful technique
is to ask the witness to make a rough drawing or
SIDEBAR
Depositions: The Opposing Attorney’s Role
The purpose of a deposition is to gather informa- the court’s scheduling order, then the opposing party
tion—information that the opposing attorney may may have grounds to avoid it altogether.
not want brought to light. The opposing party can What should the opposing party do in that case?
use several weapons to prevent us from obtaining the The answer depends on the circumstances. If the infrac-
information we need. tion is clear, it may be sufficient to send the noticing at-
Resisting Attendance torney a letter reciting the problem and simply not at-
tend. A safer course, however, is to file a motion for a
The opposing party’s first line of defense is to try
protective order under Rule 26(c). Rule 26(c) gives the
to find some way to prevent the deposition from oc-
judge broad power to enter orders regulating discovery
curring at all. This will succeed only if there are valid
matters, and a motion for protective order is the correct
legal grounds for opposing the deposition, such as
procedural move when another party attempts to en-
procedural errors by the party who notices the deposi-
gage in improper discovery.
tion. If, for example, the notice of deposition fails to
conform to the limitations of FRCP, Rule 30(a)(2), or Avoiding Damaging Testimony
the subpoena violates the geographic restrictions of If nothing can be done to prevent the deposition
FRCP, Rule 45, or the deposition is not allowed under proceeding, the opposing party will next try to weaken
SIDEBAR
Depositions: The Opposing Attorney’s Role continued
the damaging testimony. Among other things, the op- ■ Confer with the witness if the witness is the
posing attorney may try these ploys: attorney’s client. A witness is free to confer
■ Make objections. Since there is no judge present, with his attorney during a deposition. A recess
the normal procedure at a deposition [see FRCP, may be taken, or the witness and attorney
Rule 30(c)] is for the court reporter to note the ob- may engage in a whispered conference during
jection on the record. The witness then answers questioning. This is, in fact, the proper tactic
the question despite the objection (otherwise the to use when one’s client is obviously having
deposition would have to be taken again if the trouble with a question. However, the attorney
judge overruled the objection). One problem with conducting the questioning can, and usually
objections at depositions is that attorneys are should, note the conference on the record (i.e.,
tempted to make so-called “speaking objections” “Let the record show that the witness is con-
when a witness is getting into trouble—objec- ferring with his attorney before answering the
tions that, in effect, tell the witness how to an- question.”).
swer. The federal rules prohibit this. FRCP, Rule ■ Instruct the witness not to answer a ques-
30(d)(1), states “Any objection to evidence dur- tion. This is a proper tactic only if the witness is
ing a deposition shall be stated concisely and in the attorney’s client, and then only if the ques-
a non-argumentative and non-suggestive man- tion calls for privileged information, violates a
ner.” Nevertheless, faced with a choice between court-ordered limitation on discovery, or is so
the possibility of a scolding from the judge for a unreasonable that the attorney is prepared to
suggestive objection and the certainty that a wit- stop the deposition and go track down the
ness is about to torpedo the case with a bad an- judge for an order then and there (not a rec-
swer, many litigators will opt to bend FRCP, Rule ommended move except under the most com-
30(d)(1). pelling of circumstances).
CONCLUDING STEP testimony of deponent as a witness. . . .” In

other words, if the witness makes some state-
ment while testifying at trial that differs from
what the witness said in deposition, we can
Step 8 Analyze and Digest Transcript
confront the witness with the inconsistent
questions and answers from the deposition.
After the deposition is over, we will, in due course, (“Isn’t it a fact that, at your deposition, you
receive a transcript from the court reporter. (How gave the following answer to the following
soon depends on how much we are willing to pay. question. . . ?”)
Standard processing typically takes a week or two; ■ We can use the deposition as a substitute for
we can order expedited or even next-day tran- live testimony in circumstances where it is im-
scripts, at additional cost.) What do we do with the practicable for the witness to testify in person
transcripts once we have them? What can we use (i.e., the witness is dead, aged, sick, hiding, in
them for, and what, as a practical matter, must we do prison, or lives more than 100 miles away); see
to make the information in them readily accessible? FRCP, Rule 32(a)(3). Traditionally, when offer-
ing a deposition in lieu of a live witness, it was
Rule 32 and the Uses of Depositions—Deposi- customary to have some volunteer (perhaps a
tion transcripts have a variety of uses in litigation, paralegal!) take the stand and pretend to be
so many that an entire rule (FRCP, Rule 32) is de- the witness, reading answers from the tran-
voted to the subject. Here are some common uses: script as the attorney read the questions. To-
■ We can use deposition testimony for im- day, most litigators would prefer to use a
peachment when we cross-examine a witness videotaped deposition in such circumstances.
at trial. FRCP, Rule 32(a)(1), provides: “Any ■ We can use the deposition of an opposing
deposition may be used by any party for the party (including the individual designated to
purpose of contradicting or impeaching the testify for a corporate party) for any purpose.
■ We can quote from deposition testimony to sponse to our questions that the opposing attorney
establish facts in support of or in opposition wants to clarify or “reengineer.” If the opposing attor-
to a motion for summary judgment; see FRCP, ney has no questions, then the deposition is over.
Rule 56(e). Typically, we do this by attaching At the conclusion of the deposition, the court
photocopies of the pertinent transcript reporter has a few clerical matters to attend to, in-
pages to the supporting affidavit, and quoting cluding these:
the testimony in the body of the motion. See ■ Gather all of the original marked exhibits
Workshop 16 for more detail. (which, by the end of a deposition, are likely
■ We can use the information that we obtain in to be scattered over the conference table).
a deposition to help us find other evidence. Copies may be substituted if desired [see
It is sometimes tempting, particularly to begin- FRCP, Rule 30(f)(1)]. The exhibits will be
ning lawyers, to set traps and confront deposition bound with the transcript.
witnesses with inconsistencies, much as we might ■ Ask which attorneys are ordering copies of
do in cross-examination at trial. Except in unusual the transcript. If the deposition is deemed
circumstances, experienced litigators resist the unimportant, and/or if the case is likely to
temptation. Our purpose at a deposition is to gather settle before trial, attorneys may sometimes
ammunition to be used at trial—not to waste it. The delay ordering a transcript to avoid the addi-
idea is for us to find out what the witness will do at tional expense.
trial, not for the witness to find out what we will do. ■ Check with the witness to verify spelling of
After covering all of our planned topics, it is any unusual words or names.
time to wrap up. Here, a break may be in order so
■ Ask whether the witness is to read and sign
that the attorney can consult with the paralegal and
the deposition. See sidebar.
both can consider whether any important subject
matter has been overlooked. Then the attorney will
ask some concluding questions, designed to make a
clear record that the witness has told us everything SIDEBAR
there is to tell. Examples:
■ “Have you now told me everything you can Read and Sign?
remember that has anything to do with the
accident that you witnessed?” FRCP, Rule 30(e), provides that the witness
shall have 30 days in which to review the transcript
■ “Is there anything else you are aware of that
and make a list of any corrections. The rule is not
you feel is pertinent to this lawsuit?”
intended to allow the witness to change an answer
■ “Have you now told us about every conversa- that, in retrospect, the witness does not like (al-
tion you have had with anyone, at anytime, in though witnesses have been known to try); rather,
which the subject matter of this lawsuit was the purpose is to allow for correction of errors by
mentioned?” the court reporter. If the witness does have changes,
We would usually then add a few more questions, the witness lists them on a form provided by the
this time intended to make a record that we can use court reporter and signs the form. The court re-
later if the witness tries to weasel out of any of his porter does not change the transcript, but does at-
or her answers: tach the list of changes at the end.
■ “Do you feel that you have understood all of Under the rules of some state courts, the wit-
my questions?” ness is to sign the deposition itself after reading it.
The federal rules no longer require signature. Un-
■ “As you think back over this deposition, is
der current federal rules, it is up to the witness
there anything that you want to clarify?”
whether to read the transcript or not. In state
■ “Have you answered each of my questions courts where the rules require the witness to read
truthfully and completely to the best of your and sign the deposition, the attorneys often stipu-
ability?” late to waive reading and signing, trusting the
Then we thank the witness and state on the record court reporter to transcribe accurately. (Some at-
that we have no more questions. At this point, it is the torneys, however, insist that the witness read and
opposing attorney’s turn to ask questions if desired. sign, to prevent the opposing party from later
If the witness is cooperating with the opposing attor- claiming that a troublesome answer was the result
ney, the opposing attorney is unlikely to ask ques- of a court reporter mistake.)
tions unless the witness has said something in re-
Your Local Notes Deposition Outlining—With word-for-word in-

dices and searchable disk files available, you
_________________________________________________ might suppose that there would no longer be any
_________________________________________________ need for paralegals to wade through transcripts la-
boriously making outlines. Isn’t modern technol-
ogy wonderful!
Sorry. Computerized indexing is not a substi-
Organizing Deposition Testimony—In a lawsuit tute for trained legal judgment. The computer can
of average complexity, the transcripts of the deposi- locate words, but it cannot decide which ones are
tions taken by both sides may amount to several important, nor can it assess meaning and relevance.
thousand pages. Taking into account that the case Someone who is properly trained and familiar with
load of the average litigator or litigation paralegal the facts and issues of the case must read the tran-
may include a number of such lawsuits at any given scripts, analyze the testimony, identify the ques-
time, obviously we cannot expect to locate impor- tions and answers that may prove useful or need
tant deposition testimony on command by memory follow-up, and preserve the analysis in such a way
alone. Neither is it practical to search through reams as to allow the attorney to find needed testimony
of transcripts whenever we need to find some par- quickly.
ticular bit of testimony. We need a systematic way of A common solution is to have a paralegal sum-
cataloging and indexing our deposition transcripts. marize or outline each deposition. In a typical depo-
The traditional deposition transcript is simply a sition, even though the questioning may jump
verbatim, typed or printed record of questions, an- around from topic to topic, we can identify “blocks,”
swers, objections, and anything else said on the or short sequences of questions and answers, that
record during the deposition. These are customarily together add up to one main point. When we sum-
double spaced, and often on smaller-than-letter-sized marize a deposition, we try to express the main point
paper, so not very many questions and answers fit on of each block in a few, well-chosen words. If possible
one page, and not indexed in any way. To make the without sacrificing brevity, we use the same words as
testimony accessible by subject matter, someone (of- the witness used, rather than paraphrasing.
ten a paralegal) had to go through the transcript There is no correct format for a deposition out-
question by question and prepare an outline or index. line. We are preparing a tool for our own use and that
In the last decade or so, as court reporters have of our supervising attorney, and we are free to tailor
embraced computerized note taking and transcrip- it to fit our needs. A certain customary layout is of-
tion, several innovations have been introduced that ten used, but there is considerable local variation.
make organizing deposition testimony easier: Commonly, a deposition outline has a narrow col-
■ Computer-generated indexes. A modern, umn on the left for the page and line number of each
computer-generated transcript comes with a entry, with the summary of the main point of each
word index that lists every single word in the chunk to the right. No effort is made to rearrange the
deposition (except words like “a” and “the”), order—we simply summarize the chunks in the se-
and gives page and line numbers of every place quence in which they appear in the deposition. (See
where each word appears in the transcript. the Practice Pointers section at the end of this work-
shop for some samples.)
■ Transcripts on disk. Most court reporters can The trick to identifying the main point of each
provide, for an extra charge, a diskette with a segment is to focus not on the words, but on the re-
word processing file containing the entire lationship of the testimony to the issues in the case.
transcript. This allows us to do word search- We ignore extraneous detail and facts that are not in
ing and other processing using word pro- doubt. The main point that we would like to capture
cessing software (and also saves typing when in each segment is the tendency of the testimony to
we want to quote long passages in another prove or disprove some disputed issue.
document). Outlines of all the depositions in the case will go
■ “Min-u-script” transcripts. In addition to the into the attorney’s trial notebook. Then, when it is
usual transcript, we can get a transcript in necessary to find the page where a witness talked
which the questions and answers appear in about a particular subject, the attorney can easily
single-spaced fine print, several columns skim through the deposition outlines. In a case
per letter-sized page. This allows us to see, where the deposition testimony is extensive, it may
at a glance on a single page, testimony that be desirable to prepare additional outlines where
occupies ten or more pages in the standard the main points are organized by subject matter.
transcript. Obviously, the ways in which the standard layout
can be improved are limited only by our imagina- PREPARATORY STEPS

tion and the amount of time available.
Decide Which Witnesses
Step 1 Should Be Deposed
Depositions: Learning
Our first task is to assemble a comprehensive list of
by Example possible witnesses. For brevity, we will leave out
those who are employed by or under the control of
We will now apply the principles we have learned
our client, since, as you now know, we normally do
by setting up deposition discovery in our hypo-
not depose our own witnesses. The list would look
thetical lawsuit, Martin v. Collins, on behalf of de-
something like the one shown in Figure W13–1.
fendant Park Hotels Group. We will assume that the
Next, we decide how important it is that each of
Rule 16 scheduling conference has just occurred,
these be deposed. Here are our conclusions:
and that the discovery cutoff date is 6 months from
now. We have already received plaintiff’s disclosure 1. It goes without saying that Park Hotels’ attor-
statement as it appears in the Learning by Example ney must depose Shannon Martin. She is both
section of Workshop 12, and we are also aware of the principal opposing party and one of only
the information described in the Learning by Doing two eyewitnesses to the incident that led to the
section of Workshop 12. lawsuit.
Figure W13–1 Sample List of Possible Witnesses
Person Role
Shannon Martin Plaintiff
Arthur Collins Co-defendant, witness to incident
Detective Sgt. Janet Marnell In charge of police investigation
Officer Edward Flanigan Assisted in police investigation
Officer Barbara Goldberg Assisted in police investigation
Mr. and Mrs. Carl Mitchell Shared an elevator with defendant Collins
immediately prior to incident
Mr. Andrew Garrison Paramedics who responded to the scene and treated
Mr. Manuel Rivera defendant Collins; may have made observations
of plaintiff’s hotel room and persons and objects therein,
and condition of defendant Collins immediately after
the incident.
Ellen Sayers, M.D. Emergency room doctor, treated plaintiff
Paul Norling, M.D. Plaintiff’s primary care physician
Robin Carter, M.D. Plaintiff’s hand surgeon
Gordon McCormick, P.T. Plaintiff’s physical therapist
Anne Resnick, M.D. Anaesthesiologist during plaintiff’s hand surgery
Dennis Tang, M.D. Plaintiff’s psychiatrist
Network Software Solutions, Inc. Plaintiff’s employer
Bruce DeAngelo Plaintiff’s supervisor
Mrs. Helen Barnes Hotel guests in nearby rooms
Mr. and Mrs. Gerald Monson
Mr. Chris Jansen
Mr. and Mrs. Barry Levine
Dr. Donald Gellman, D.D.S.
Bruce Brown
2. Whether Park Hotels would depose Dr. Collins sible. However, she cannot force out-of-state wit-
or not would depend on whether Park Hotels nesses to come to Phoenix.
and Dr. Collins were cooperating in the defense Shannon’s deposition would certainly be no-
or asserting claims against each other. If the ticed for Phoenix.
former, there would be no need to depose him; Even though Dr. Collins lives in another state,
if the latter, it would be essential to do so. most judges will require a party to the suit to sub-
mit to deposition at least once in the state where
3. There are a number of individuals who may have
the lawsuit is pending. In ordinary circumstances,
varying degrees of light to shed on the events
Park Hotels’ attorney would simply notice the de-
surrounding Shannon’s injury: three police offi-
position for Phoenix. However, Dr. Collins was se-
cers, two paramedics, two people who shared
verely injured and may not be in a condition to
an elevator with Dr. Collins, and eight hotel
travel anytime soon. Therefore, if it is considered
guests from surrounding rooms. Det. Sgt. Mar-
important to take the deposition immediately, it
nell, as the police officer in charge of the scene,
may be necessary to conduct it in Dallas.
is a relatively high priority. The other two offi-
Network Software Solutions, Inc., since it is
cers and the paramedics may or may not have
based in the Phoenix area, is within the geographi-
anything useful to add to what Sgt. Marnell can
cal area that is subject to the subpoena power of
tell us. The people in the elevator with Dr. Collins
the District Court; see FRCP, Rules 45(b)(2) and
and the other hotel guests are unknown quanti-
(c)(3)(b)(3).
ties. We would certainly depose Sgt. Marnell; we
Sgt. Marnell is not subject to subpoena in the Dis-
would probably contact the other officers, para-
trict of Arizona since she cannot be served within
medics, and hotel guests informally and try to
the district and Las Vegas is more than 100 miles
find out what, if anything, they observed, then
from the place of the deposition (Phoenix); see FRCP,
take statements or depositions as appropriate.
Rule 45(b)(2). She presents the typical out-of-state
4. Since Shannon’s damage claim includes amounts witness situation, one that occurs frequently in liti-
relating to her loss of income from employment, gation. There are several possible solutions:
and since those amounts are large and, in the
case of the lost clients, debatable, we assign a rel- 1. Subpoena can issue from the District of Nevada
atively high priority to deposing Shannon’s em- and the deposition can be taken in Nevada. Of
ployer. We would probably notice the deposition course, all of the attorneys would then need to
of the corporation and specify the subject mat- travel to Nevada to conduct the deposition, an
ter rather than depose the supervisor and hope expensive proposition, taking into account the
that he can tell us everything we need to know. cost of travel and the attorney time spent sit-
ting around in airplanes (for which attorneys
5. The remaining names on our list are medical routinely bill the client). Nevertheless, having
providers: doctors, hand surgeon, physical the attorneys go to the witness may be the only
therapist, psychiatrist, etc. Certainly, we will way to get the deposition taken if the witness
depose any of these who are designated to tes- will not cooperate.
tify at trial. We will, of course, have to wait un-
til we receive the written reports. 2. The witness may be willing to come to the at-
torneys, especially if the attorneys are willing
At this point, our list of deponents appears to be to pay the witness’s expenses (as well they
Shannon, Dr. Collins, Sgt. Marnell, and Network Soft- should be, since it is far cheaper to transport
ware Solutions, Inc. We may add hotel guests or oth- one witness than three attorneys).
ers to the list later after we contact them informally.
We will add to the list any medical experts desig- 3. The deposition can be conducted telephonically
if all parties agree. At present, telephonic depo-
nated to testify at trial.
sitions are not in widespread use, in part be-
cause of the difficulty of showing documents to
Decide Where, When, and
Step 2 in What Order to Schedule
the witness and in part because of the inability
to see the witness and observe demeanor and
the Depositions body language. However, as teleconferencing
technology improves, we can expect that more
Scheduling the depositions in this case is some-
and more depositions will be taken in this way.
what complicated because the participants are not
all located in one city. Obviously, Park Hotels’ at- What about the order and timing of the depo-
torney, whose office is in Phoenix, would prefer to sitions? Our own preference is usually to depose
hold depositions at her own office to the extent pos- the principal opposing party first and as early as
possible; we would notice Shannon’s deposition CLERICAL STEPS

immediately, for a date about 10 days in the future.
Ideally, Dr. Collins would be next. As a matter of In Steps 3, 4, and 5, we prepare a notice of deposi-
courtesy, since Dr. Collins’s health is in question, tion and subpoena duces tecum. We have selected
we would try to cooperate with Dr. Collins’s attor- the deposition of Network Software Solutions, Inc.,
ney in arranging his deposition. We would take Sgt. for this example, since it allows us to illustrate the
Marnell’s deposition as early as it could conve- procedure for deposing a corporation.
niently be arranged, probably after consultation
with the Las Vegas Police Department and the
other attorneys in an effort to find a mutually ac- Step 3 Notice the Deposition
ceptable time and place. The deposition of Net-
work Software Solutions, Inc., can be left for later, Figure W13–2 shows the notice of deposition we
since it relates only to the issue of damages. would prepare for our hypothetical situation.
Figure W13–2 Sample Notice of Deposition

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) NOTICE OF DEPOSITION
v. )
)
HOTELS GROUP, INC., a Delaware corporation; )
)
Defendants. )
________________________________________________ )
Notice is hereby given pursuant to Rule 30, Federal Rules of Civil Procedure, that the deposition
upon oral examination of the person whose name and address appear below will be taken at date,
time and place indicated.
Name of Deponent: Network Software Solutions, Inc., by and through one or more
officers, directors, or managing agents, or other persons who consent
to testify on behalf of said corporation, concerning the following
matters:
Terms of employment, duties, and compensation of Shannon Martin;
pecuniary loss, if any, suffered by Shannon Martin as a result of
suspension/termination of her employment; rights and obligations of
Shannon Martin with respect to commission clients and accounts;
qualifications and performance of employment duties by Shannon
Martin; any communications with or from Shannon Martin from
February 5, 1996, onward.
continued
Figure W13–2 Sample Notice of Deposition, continued
Address of Deponent: 6366 N. 76th St.

Scottsdale, AZ
Date and Time: 9:00 a.m., July 14, 2000
Location: Law Offices of Crandall, Elkins & Major
A subpoena duces tecum is being served on the person to be examined. A copy of the designation
of the materials to be produced as set forth in the subpoena is attached hereto.
DATED this 21st day of June, 2000.
Gail Stoddard
As required by FRCP, Rule 30(b)(1), we attach PLANNING AND TAKING

to the notice of deposition a copy of the same THE TESTIMONY
schedule of documents to be produced that we at-
tach to the subpoena (see Step 5 later). The notice
Prepare a Topic Outline
of deposition is served by mail or hand delivery to Step 6 for Use by the Attorney Who
the offices of each of the other attorneys; see FRCP,
Rule 5(b).
Will Conduct the Deposition
The deposition we have chosen for our example has

a quite narrow focus: assigning a dollar amount to
Take Steps Necessary to Secure the losses Shannon incurred as a result of the inter-
Step 4 Attendance of Witness ruption of her career. The topic outline is therefore
relatively simple, much shorter than the one we
would prepare for, say, Shannon’s deposition.
Take Steps Necessary to Ensure Outline of Topics to Cover in Deposition of

Step 5 Availability of Documents Network Software Solutions, Inc.
Preliminary questions
The deponent, Network Software Solutions, Inc., General description of Shannon’s position and duties
is not a party to the lawsuit, so the notice of de- Were duties such that a broken finger would
position alone is not sufficient to compel it to at- prevent her performing them
tend (indeed, since it is not a party, it does not Job performance, company’s satisfaction
even receive a copy of the notice of deposition). with her work
We need a subpoena. The federal district courts Expectations of continued employment/
have an approved printed-form subpoena that we advancement
can use (obtainable on many U.S. district court When, based on nature of injuries, should she
web sites; for instance, you can download one have been able to return to work
from the District of New Mexico web site,
Nature of Shannon’s compensation arrangement
www.nmcourt.fed.us/dcdocs/ courtfrms.html).
The subpoena also accomplishes Step 5. We check Salary (objective: establish amount of monthly
the third box, and attach a list of the documents income at time of injury)
to be produced. Base amount at time of injury
Overtime A: Just the base salary, you mean, or every-

Average monthly compensation in months thing, including commissions?
leading up to injury Q: Did Ms. Martin have a base salary?
Fringe benefits A: Yes.
Amount/value Q: How much was it?
Were they cut off after injury A: Sixteen hundred.
Identify and review pay records Q: Per month?
Commissions (objective: establish how much A: Right.
commission income she could reasonably Q: Did she also receive commission income?
expect in the time period following the injury) A: Yes.
How computed Q: In addition to the base salary, or was the
Average amount in months leading up to base salary like a minimum commission?
injury A: The commissions were in addition to the
Number of clients on which based base salary.
Company policy re rights to retain clients Q: As of February 1996, how much was Ms.
Expected commissions in period following Martin making in commissions?
injury A: It varied. Around fifteen hundred, two
Any changes in client base or other condi- thousand.
tions affecting commissions Q: How much was her commission income
Identify and describe any documents per- for January 1996?
taining to commissions A: Can I see those papers? It was $1,388.
Q: How about the months before that, say,
Nature/substance of any communications between
October through December?
Shannon and company after injury, especially con-
A: October, $1,732. November, $1,934. Decem-
cerning:
ber, $1,671.
Circumstances of her injury (what description Q: Did Ms. Martin receive any other income
of the incident did she give her employer?) from the company beside base salary and
Her ability to perform her duties/return to commission?
work A: No.
Concluding questions Q: Did she get paid for overtime?
A: No.
Q: Did she receive bonuses?
Step 7 Assist at the Deposition A: Christmas bonus, but those are just $100.
Q: Did Ms. Martin’s duties involve any physi-
cal labor or exertion?
We have already described a variety of ways in A: Not really.
which a paralegal can assist at a deposition: keep- Q: Was there anything about Ms. Martin’s du-
ing the documents organized, helping make sure ties such that a broken finger would inter-
all topics are covered, observing witness de- fere with her performing them?
meanor, and watching for evasive or unresponsive
answers. Here is an excerpt from the deposition
summary:
....
CONCLUDING STEP p. 17, lines 4-29 Pl’s income at time of incident
was approx. $3,300 per month,
base salary $1,600,
Step 8 Analyze and Digest Transcript commissions $1,388 to $1,934
in four months preceding.
Obviously, space does not permit us reproduce an ....
entire deposition transcript and summary here. We
will have to settle for a short excerpt, enough for a
single entry in the summary: Depositions:
Q: As of February 1996, how long had Ms. Mar- Learning by Doing
tin worked for Network Software Solutions?
A: About three years, give or take. For this workshop, assume you are a paralegal
Q: As of February 1996, what was Ms. Mar- working under the supervision of Roger Yarbor-
tin’s monthly income? ough, attorney for defendant Collins. Assume the
lawsuit, Martin v. Collins, is pending in the U.S. dis- for each of the remaining names (or groups
trict court having jurisdiction in your locality, and of names, where they have similar roles)
that Mr. Yarborough practices in your city. Assume why you chose not to depose them.
Shannon lives and is employed in your city, and all
2. Assume that the FRCP, Rule 16(b), scheduling
other witnesses are located as indicated in the
conference was held on the Friday immediately
workshops where they appear. Mr. Yarborough as-
preceding your receiving this assignment. Fol-
signs you to do the following exercises.
lowing the instructions given in Step 2, add to
your memo the dates, times, and places at
EXERCISES which you propose that the depositions you
are calling for should be held.
the step-by-step formula described in this workshop. 3. Your instructor will choose one deposition for
which you are to do the following:
1. Following the instructions in Step 1,
a. Following the instructions in Step 3, prepare
a. Make a comprehensive list of the names of
a notice of deposition.
every person who might conceivably be de-
b. Following the instructions in Steps 4 and 5,
posed, showing the role or relationship of
prepare a subpoena duces tecum.
each in the case. As sources of names, refer to
c. Following the instructions in Step 6, prepare
the factual information about the Shannon’s
an outline of topics to be covered.
Ordeal hypo described elsewhere in this text,
in particular, that contained in the example 4. If possible, at your instructor’s option, arrange
disclosure statement and in the Learning by to sit in on and observe a deposition.
Doing exercises from Workshop 12. 5. Obtain a transcript of a deposition (or, at your
b. Draft a short memo to your supervising at- instructor’s option, he or she will provide one)
torney stating which witnesses you would and prepare a deposition summary following
depose and why. In the memo, also indicate the instructions given in Step 8.
PRACTICE POINTERS
Summarizing Depositions
A number of different formats can be used for summarizing deposi-

tions. Because only one of those formats is discussed in this workshop,
some alternative formats are presented here in Figures W13–3 through
W13–7. Most importantly, however, remember that you should consult with
your supervising attorney to find out which format to use. Format prefer-
ence in not only a matter of personal choice but is dependent on the pur-
pose for which the summary is being prepared. Therefore, you should be
familiar with a variety of formats so that you have the flexibility necessary
to work with different attorneys under different conditions.
A narrative summary (Figure W13–3) is merely a summation of the
testimony but cannot be used as a reference tool because it does not re-
fer to specific pages and line numbers in the deposition. It is used to sum-
marize the testimony of minor witnesses or as an adjunct to other more
complete summations.
Testimony can also be summarized by subject matter (Figures W13–4
and W13–5). This method requires more time to complete and is espe-
cially helpful when the deposition is lengthy and complex. The beauty of
this approach is that it can greatly assist an attorney attempting to im-
peach a witness at trial because the attorney can zoom into a specific sub-
ject very efficiently.
In complex cases it is helpful to prepare an index, listing the main sub-
jects by page number (Figure W13–6). This index can also be used by it-
self as a summary or to assist in accessing the more detailed summaries
described earlier.
PRACTICE POINTERS
Summarizing Depositions continued
To help track the deposition process, consider preparing a deposition

table (Figure W13–7). This table records the names of the deponents, the time
and location of their deposition, the names and phone numbers of the court
reporters, whether a transcript was received, and the status of the deposition
summary. Such a table enables you to see at a glance the status of each de-
position and allows you to easily contact the appropriate reporter without go-
ing through the files.
Figure W13–3 Deposition of Arresting Officer Flanigan
3/24/99
Circumstances of Arrest: Flanigan arrived at the hotel in response to call from Pl. No one from
Hotel called police.
Observations at Scene: Immediately saw that Pl. was highly agitated, dressed in pajamas, and
insisting that officer arrest D2. Observed no signs on injury except to finger.
Actions Taken: After talking with Pl., D2, and rep. from Hotel, decided to arrest Pl. on weapons and
assault charges. Took Pl. to station for booking.
Figure W13–4 Deposition of Treating Physician Sayers
4/1/99
ASSESSMENT OF MENTAL CONDITION: PAGE LINES
Initial exam: Pl. was highly reactive and Dr. found it difficult
to talk with her. She pieced together story of assault but found
it hard to keep Pl. focused on chronology. 4 1–19
Tests ordered: Ordered std. battery of psy. tests to be done
immediately. Also arranged to have blood drawn. 9 10–22
Follow-up exam one week later: Found Pl. calmer and easier
to relate to. Still had difficulty relating story of assault. Having 6 6–15
insomnia and panic attacks. 14 2–20
Prescriptions ordered: Zoloft during day; Xanax when
needed for insomnia. 8 16–24
Figure W13–5 Deposition of Examining Physician Sayers
4/1/99
PAGE TESTIMONY
2 Witness: Ellen Sayers resides at 2020 E. Central,

Tempe. Explanation of depo procedure.
Figure W13–5 Deposition of Examining Physician Sayers, continued
PAGE TESTIMONY
3 Educational Background: B.S. Chemistry—1973 from ASU; M.D.—1980

from UofA; residency at Good Samaritan Hosp. in Tucson
4 Initial exam of Pl. showed Pl. was highly agitated and difficult to talk to.
Pieced together story of assault but had hard time focusing Pl. on chronology
of events. Did cursory physical exam and observed no external signs of injury.
5 Dr’s initial assessment of Pl. was that she was suffering from type of post-traumatic
stress disorder. Defined this disorder.
6 Conducted follow-up exam of Pl. one week later. Found Pl. to be calmer and easier
to relate to. Described sequence of events in this exam.
(Alternatively, this summary can be further defined using line numbers as well.)
PAGE LINES TESTIMONY
4 1–10 Initial exam of Pl. showed Pl. was highly agitated and difficult to talk to.
11–16 Pieced together story of assault but had hard time focusing Pl. on
chronology of events.
17–21 Did cursory physical exam and observed no external signs of injury.
Figure W13–6 Index to Deposition of Plaintiff
SUBJECT PAGES
Assault
At moment of entry 17, 19–20
Before entry 16, 18
Contact with Collins 17, 21–23
During Collins’s undressing 24–29
Injuries
Finger 4, 7, 31, 36, 40
Head 4, 8, 32
Insomnia 5, 7, 32–33
Panic disorder 31, 34–36
Shock 4, 22, 36–37
Treatment
Emergency room 40–41, 44
General physician 44, 46
Psychiatrist 45, 47, 48–50
Work History
Sales manager 9, 12, 15
Sales rep 4, 6, 20, 28
Training 10, 12
Figure W13–7 Deposition Table
DEPONENT TIME PLACE COURT TRANS SUMMARIZED

REPORTER REC’D
Dr. Sayers 4/1/99 St. Luke’s Ginny no no
1:00 pm Hospital Bush
945-6670
Dr. Collins 2/2/99 Our office Sammy yes yes
8:00 am Smith
966-4312
Officer Flanigan 3/24/99 DPS Office Craig yes no
9:00 am Monroe
465-9911
Det. Marnell 3/27/99 DPS Office Craig yes yes
3:00 pm Monroe
465-9911
TECHNO TIP
In many firms that do a lot of litigation, com you can obtain a CD providing an
specialized software is used to help extensive demonstration of its data-
manage documents and data obtained base manipulation skills. Information
in discovery, including depositions. on its various products, including de-
One company that has won wide- position summaries, is available on-
spread acceptance of its product is line along with demonstrations of
Summation Legal Technologies, Inc. If some of its products.
you visit its site at www.summation.
FORMS FILE

• Notice of deposition
• Subpoena duces tecum
• Deposition summary (try to get several different types)
KEY TERMS
Deposing Noticing a deposition Witness statement

Notice of deposition
Introduction to the
Motion Practice
Workshops
In a typical lawsuit, the judge must make a number haps a majority of the motions filed: discovery mo-
of decisions as the case progresses. As a general tions and early-stage defensive motions.
rule, the judge is not the one who determines which Discovery enforcement, the subject of Work-
decisions need to be made—it is up to the attorneys shop 15, provides a convenient point of departure
to select the appropriate issues and submit them to because it allows us to explore motions procedure
the judge for decision. and strategy in the context of a subject—discov-
The attorneys do this by presenting motions. A ery—whose rules are already familiar. Also, the sit-
motion is a formal request to the court for an order. uations calling for discovery motions are relatively
An order is an official pronouncement by the judge. easy to identify, making this a good area in which to
It may, as the word order implies, require someone begin developing the skill of recognizing when a par-
to do something. More commonly, an order may ticular motion is called for.
merely recite a decision that the judge has made. The theme of Workshop 16 is the process of re-
To be effective in using motions to advance our finement that takes place as a lawsuit moves from
cases, we need to develop three main skills: the pleading stage toward trial. Some of the claims
and defenses asserted in the complaint and an-
1. We must know how to present our motion in a
swer will turn out to be incorrectly stated, un-
manner that complies with the rules.
provable, or otherwise flawed. The procedural
2. We must be able to identify the right things to posture of the case may be incorrect, due to errors
ask for. That is, we must be able to recognize or unforeseen circumstances. There may be dis-
the situations in which a particular motion may putes over admissibility of evidence, scheduling,
advance our case. procedural requirements, or other administrative
3. We must be able to construct logically com- matters. By the time the trial date arrives, all of the
pelling arguments, backed by citation of legal defective claims and defenses need to be weeded
authority, sufficient to convince the judge to out, and all of the disputed issues that can be de-
rule in our favor. cided beforehand need to be decided, so that the
trial can proceed smoothly and efficiently. It is by
We begin our study of motions with Workshop the use of motions of various kinds that we ac-
14, on how to construct and present a generic mo- complish these things.
tion. With motions, most of the challenge involves So as to keep the discussion within manageable
the content, not the packaging. In general, the me- bounds, and to illustrate the thought process un-
chanics of motion procedure are not particularly derlying motion strategy, we have chosen to focus
complicated, and, subject to minor variations, are our main attention in Workshop 16 on the motions
the same for motions of all kinds. Once we have available to a defense attorney in the early stages of
mastered the basic step-by-step process for writing a lawsuit. We will also bring in via sidebars a few
and presenting a simple motion as outlined in Work- other common motion types that do not fit perfectly
shop 14, it will be easy to adapt it to more complex within that main theme but that are important
situations. enough to deserve some mention.
We introduce the more difficult subject of what
motions to make and when to make them in Work- WHAT KINDS OF MOTIONS ARE
shops 15 and 16. This is not an easy subject to en- THERE, ANYWAY?
capsulate into a few short chapters. The universe of
possible motions to make is a large one (see the Suppose we decided to spend an afternoon in the
table that follows), and the strategic decisions re- records room at the courthouse, going through case
quired call for a level of judgment that comes only files and jotting down the titles of all the motions.
with experience. What would we find? Which motions would we find
Rather than attempt to cover the entire spec- most often? Here is our take on a Top Ten list (well,
trum of motion practice, which we could do only su- okay, a few more than ten), not in any particular or-
perficially, if at all, we have chosen to focus on two der, although motions to compel and motions for
specific subject areas that together account for per- summary judgment probably deserve the No. 1 and
488 WORKSHOP Introduction to the Motion Practice Workshops
No. 2 positions.1 Please note that the descriptions table by no means encompasses all of the motions
are greatly oversimplified due to space limitations— that can be made in civil cases—only those seen
see the workshops for details. Note also that the most frequently.
MOTION TYPE DESCRIPTION BASIS
Discovery Motions
Motion to compel Asks the judge to order another party to respond to a Rule 37
discovery request. Made when a party refuses to re-
spond or, more often, makes a response that is evasive or
incomplete. (Covered in Workshop 15.)
Motion for sanctions Asks the judge to punish a party who has failed to com- Rule 37
ply with an order to respond to discovery. Typically, the
party seeking discovery first files a motion to compel; if
the responding party still does not respond properly to
the discovery request even after losing a motion to com-
pel, the next step is a motion for sanctions. (Covered in
Workshop 15.)
Motion for protective Asks the judge to rule that a discovery request is im- Rule 26(c)
order proper, and that the responding party or witness need
not comply with it. Made when a party is attempting to
obtain discovery to which he is not entitled. (Discussed
in Workshop 15.)
Substantive Motions Addressed to the Claims and Defenses
Motion to dismiss Asks the judge to dismiss one or more claims (or the en- Rule 12(b)
tire lawsuit). Usually made when a required element of a
claim is left out of the complaint. Can also be made when
there are certain procedural defects in plaintiff’s case
(i.e., lack of jurisdiction). (Covered in Workshop 16.)
Motion to strike Asks the judge to strike a defense from the defendant’s Rule 12(f)
answer. Can be thought of as like motion to dismiss, ex-
cept that it challenges defendant’s defenses instead of
plaintiff’s claims. Sometimes made when defendant has
failed to plead a defense correctly. (Discussed in
Workshop 16.)
Motion for summary Asks the judge to enter judgment for or against one or Rule 56
judgment more claims, without a trial. To succeed, the moving
party must persuade the judge that the evidence is so
clear that there is no genuine issue of material fact.
(Covered in Workshop 16.)
Other Miscellaneous Motions
Motion for leave to Asks for permission to file an amended complaint or an- Rule 15
amend complaint or swer. Under FRCP, Rule 15, judges are to be liberal in al-
answer lowing amendments. Made when a party becomes aware
1
The list is based strictly on the authors’ experience. The authors are not aware of any available sources
of statistics on the frequency of motions by type in federal civil cases. But see
teddy.law.cornell.edu:8090/questata.htm for a searchable database of general statistics on lawsuits, from
which are derived some of the conclusions stated in the table.
WORKSHOP Introduction to the Motion Practice Workshops 489
MOTION TYPE DESCRIPTION BASIS

Other Miscellaneous Motions continued
of a mistake in a pleading, or wishes to add a party or a Rule 12(e)
claim or defense. (Discussed in Workshop 14.)
Motion for a more defi- Asks the judge to order the plaintiff to make the allega-
nite statement tions of the complaint more specific. Usually made in
cases involving fraud claims, which, under Rule 9(b),
must be “stated with particularity” in the complaint.
Motion in limine Asks the judge to make an advance ruling about admissi- Judge’s inherent
bility of evidence. Made when it appears that an oppos- power to make
ing party will try to put a particular piece of evidence evidentiary rul-
before the jury that is inadmissible, and even the at- ings
tempt to do so may plant improper ideas in the minds of
the jurors.
Motion to continue Asks the judge to postpone the trial date or some other Rule 40 and local
(and similar scheduling deadline. rules
motions)
Motion for pretrial con- Asks the judge to schedule a pretrial conference, usually Rule 16
ference for the purpose of making a ruling on some disputed pro-
cedural issue or for scheduling and setting deadlines. Of
declining usefulness in federal court, since most federal
judges schedule status conferences frequently without
being asked.
Motion to set attorneys’ Asks the judge to set the amount of attorneys’ fees to be Local rules
fees awarded to the successful party in lawsuits where al-
lowed (class actions, contract cases, certain cases in-
volving statutory claims such as securities fraud).
Motion for new trial Asks the judge to set aside a jury verdict and order a new Rule 59
trial. Made routinely by the losing party at trial; granted
if the judge believes that an error has occurred that will
cause the appellate court to remand for a new trial any-
way.
Motion for judgment Asks the judge not only to set aside the jury verdict but Rule 50
notwithstanding the also to enter judgment in favor of the losing party. To
verdict grant, judge must find that the jury verdict was clearly
wrong.
Motion for relief from Asks the judge to set aside a judgment after it has al- Rule 60
judgment ready been entered. Granted only in situations where it
would be seriously unjust to let the judgment stand (i.e.,
when a judgment is obtained by defrauding the court).
How to Present
a Motion
WORKSHOP
14
INTRODUCTION: SIGNIFICANCE sometimes called a brief) expounding in detail the
OF MOTION PRACTICE moving party’s argument. The moving party files
the motion, memorandum, and any other required
Motions comprise a significant part of the workload supporting documents with the clerk of the court,
of a litigator or litigation paralegal. According to a and serves a copy on each of the other parties to
study of the approximately 250,000 civil cases filed the suit. Within a prescribed time period, the re-
in federal courts in one recent year, barely 7,000— sponding party may file and serve a written re-
roughly 3 percent—actually went to trial. Approxi- sponse. It, too, is accompanied by a memorandum
mately 40,000, nearly six times as many, were dis- presenting the responding party’s reasons why the
posed of by motions of various kinds. Add in the judge should deny the motion, and countering the
unsuccessful motions to dismiss and motions for arguments made in the moving party’s memoran-
summary judgment made in all the other cases, and dum. The moving party is then given a short time in
all of the discovery motions and procedural mo- which to file and serve a written reply, with a mem-
tions, and it is easy to see why a litigation paralegal orandum answering the arguments made in the re-
can expect to spend plenty of time writing and response. The documents filed by a party in connec-
sponding to motions. tion with a motion are sometimes referred to
The skills you will learn in this workshop are generically as the party’s motion papers.
enough, if mastered, to allow you to carry out the After the motion, response, and reply have all
motion-related assignments typically given to be- been filed, there may be a hearing at which the
ginning litigation paralegals. No one expects a new judge hears oral argument—oral presentations by
paralegal—or for that matter, a beginning attor- the attorneys in which they debate their positions
ney—to be able to analyze a case file and develop a before the judge. In many courts, however, the
motion strategy without assistance from someone judge may decide the motion based on the memo-
with more experience. If you are given a motion- randa alone, without a hearing. After considering
writing assignment, your supervising attorney will the arguments on both sides, the judge may take
tell you what kind of motion is called for and, in gen- the matter under advisement—that is, think about
eral terms, what the supporting argument is to be. it for a period before rendering a decision. When
Your task will consist of gathering the necessary in- the judge does decide, the parties are notified of the
formation and supporting documents, pulling them decision by minute entry.
together into a finished set of motion papers that
complies with the rules of procedure, and, perhaps, Your Local Notes
taking the clerical steps necessary to put the mo-
tion before the court to be decided. That is the task _________________________________________________
that this workshop addresses. _________________________________________________
WHAT IS A MOTION PRACTICE?

Before we begin exploring the fine points of motions
procedure, it will be helpful to have a general pic- WHAT RULES GOVERN MOTION
ture of what is involved. For purposes of this work- WRITING?
shop, a motion is a written request for an order or
ruling by the judge. We will not concern ourselves It goes without saying that, when we present a mo-
with motions made during trial, which may not al- tion, we must follow the prescribed procedure. But
ways be in writing. The motion is a court paper, hav- what is the prescribed procedure, and where can
ing a caption and complying with the other applica- we find it? In federal court, the starting point is
ble format rules. (In some courts, the written filing FRCP, Rule 7(b), which provides:
is called a notice of motion.) The party making the (1) An application to the court for an order
motion is called the moving party, or the movant; shall be by motion which, unless made during a
the party who is opposing the motion is called the hearing or trial, shall be made in writing, shall
responding party, or respondent. Included in the state with particularity the grounds therefor,
motion, or accompanying it, is a memorandum (also and shall set forth the relief or order sought. . . .
492 WORKSHOP 14 How to Present a Motion
(2) The rules applicable to captions and Example: “[A]ll motions and oppositions
other matter of form of pleadings apply to all thereto shall be supported by a memorandum
motions. . . . of law, setting forth the points and authorities
(3) All motions shall be signed in relied upon in support of or in opposition to
accordance with Rule 11. the motion, and divided, under appropriate
headings, into as many parts as there are
Somewhat cryptic though it may seem, FRCP, Rule points to be determined.” (Source: Local Rule
7(b), gives us several clues to the required format 7.1, Southern District of New York.)
and content of a motion. A motion must:
■ By specifying how the motion is to be heard
■ Be in writing; and decided. Some courts schedule hearings
■ Have a caption and, by implication, follow the automatically when motions are filed, and no-
other format rules for filed court papers (see tify all parties by minute entry or otherwise.
Workshop 4); Others require the moving party to obtain a
■ Be signed by the attorney making the motion; hearing date, or to select a schedule “law and
motions day” from the court’s public calen-
■ State what it is that we are asking the judge to
dar, and serve a notice of hearing or notice of
do (“set forth the relief or order sought”); and
motion on other parties. And an increasing
■ State why the judge should do it (“state with number of district courts decide motions on
particularity the grounds therefor”). the basis of the memoranda alone; there is no
Obviously, there must be more to the formalities of hearing unless the judge asks for one.
motion writing than that—where are the rest of the Example: “Motions in civil cases shall be
instructions? Some come from local rules, which of- submitted and determined upon the
ten specify format, layout, organization, page limi- memoranda without oral argument. The
tations, and the like. Others arise from rules gov- court may in its discretion order oral
erning specific motion types. For example, FRCP, argument on any motion.” (Source: Local
Rule 56, expands on the procedure for motions for Rule 78-40.2, Eastern District of Missouri.)
summary judgment. Many of the established con-
■ By specifying time limits for response and re-
ventions of motion practice have never been re-
ply. In some districts, a response is due a
duced to written rules at all. Instead, they have
mere 5 days after the motion is served; oth-
arisen from custom and usage. And, of course, we
ers allow as much as 30 days. Many judges en-
have already studied the rules that dictate the for-
force time limits strictly, and rule on motions
mat and layout of court papers in general (see
summarily (usually in favor of the moving
Workshop 4); these apply to motions just as they do
to any other filed court paper. party) if the response date arrives and no re-
sponse has been filed.
Example: “A response and brief to an
THE DETAILS ARE IN THE opposed motion must be filed within twenty
LOCAL RULES days from the date the motion is filed. . . .
Unless otherwise directed by the presiding
A number of technical issues arise in connection judge, a party who has filed an opposed
with the filing and presentation of a motion, about motion may file a reply brief within fifteen days
which FRCP, Rule 7(b), is utterly silent (or at least from the date the response is filed.” (Source:
awfully quiet). Each U.S. district court specifies the Local Rule 7.1, Northern District of Texas.)
details of its motions procedure via local rules.
■ By specifying page limits. Most district courts
(Most U.S. district courts have web sites on which
disallow memoranda exceeding a specified
current local rules are posted; links to the various
number of pages. Pay close attention to these
districts may be found at the main federal judiciary
limits. In some courts, the clerk will not even
web site, www.uscourts.gov/allinks.html.) In most
accept for filing a motion that exceeds the al-
districts, the local rules add to the barebones re-
lowed number of pages.
quirements of FRCP, Rule 7(b), in at least the fol-
lowing ways: Example: “Except upon good cause
shown and leave given by the court, all
■ By requiring a memorandum of points and au- briefs in support of a motion or in response
thorities. FRCP, Rule 7(b), tells us that we to a motion are limited in length to 20 pages;
must “state the grounds” for the motion, but the movant’s reply brief may not exceed 10
does not specify how or where to do so. Local pages.” (Source: Local Rule 7.4, Middle
rules provide more specific guidance. District of Georgia.)
WORKSHOP 14 How to Present a Motion 493
Other local rules provisions less widely embraced tom unless there is some good reason to deviate
include these: from it. The layout and organization portrayed in
Steps 1 through 3 is typical of that used in many
■ Requiring a moving party to confer with the
courts; we will point out common variations as ap-
opposing party and attempt to reach an
propriate. Your instructor will help you unravel the
agreement before filing a motion [see, e.g.,
particular rules and customs of your locality; as al-
Local Rule 7.1(d), Western District of Michi-
ways, it is worthwhile to obtain sample motions
gan];
written by local practitioners and imitate them.
■ Requiring both the moving party and the re-
sponding party to submit a proposed order
Your Local Notes
for the judge to sign when the motion is de-
cided, reflecting the desired outcome [see, _________________________________________________
e.g., Local Rule 7.1(c), Northern District of _________________________________________________
Texas];
■ Allowing the clerk to grant short extensions,
giving additional time in which to file a re-
sponse or reply (see, e.g., Local Rule 6.2, Mid-
dle District of Georgia); and Step 1 Draft the Motion
■ Requiring submission of supporting docu-
ments, especially any evidentiary documents
with which the motion is concerned [see, e.g., The motion proper is a document in the form of a
Local Rule 7.1(d), Northern District of Iowa]. court paper; it has a caption, a title, and complies
with the format rules. In its most common form, the
Your Local Notes motion is a separate document from the memoran-
dum, although some practitioners in some jurisdic-
_________________________________________________ tions combine the two into a single document. The
_________________________________________________ purpose of the motion is to tell the judge what we
are asking for; the purpose of the memorandum is
to tell the judge why he should grant our request.
The title appearing in the caption should begin
with the word “Motion” and encapsulate in a few
Writing a Motion: Step-by- words the general type of ruling that we are asking
for. Most of the motions that we file will fall into one
Step Instructions of the recognized categories (see the table in the In-
Now that we have covered the basic ground rules, troduction to the Motion Practice Workshops); if
let us see how to put together a simple motion fil- so, we do not make up our own title, but stick to the
ing. In this workshop, we do not concern ourselves accepted wording (i.e., “Motion to Compel,” not
with the strategic questions of whether to make a “Motion for Order Requiring Defendant to Answer
motion or of what motion to make. (We leave those Interrogatories”).
questions for Workshops 15 and 16.) We instead as- The body of the motion (the motion, not the
sume that our supervising attorney has given us a memorandum) consists of two paragraphs stating
specific assignment and our job is to write the as- who is making the motion, what the motion is ask-
signed motion and get it filed. ing for, what rule the motion arises under, and what
other documents support the motion.
DRAFTING STEPS Example:
[caption]
It is convenient to think of a motion filing as com- Defendant respectfully moves pursuant to
prising three pieces: (1) the motion proper, a short, Rule 12(b)(6), Federal Rules of Civil Procedure,
formal statement of what we are asking for; (2) the for an order of the Court dismissing Count II of
memorandum, typically a longer document in plaintiff’s complaint.
which we lay out our argument; and (3) the attach- This motion is based upon the
ments, consisting of any supporting papers that we accompanying memorandum of points and
are required to submit with the motion. authorities.
[date and signature lines]
The exact way in which these pieces are as-
sembled varies somewhat from one jurisdiction to (In a jurisdiction in which the filed document is a
another, and it is worthwhile to respect local cus- notice of motion instead of the motion itself, the
wording is slightly different. Also, some district

courts require a recitation that counsel have at-
SIDEBAR
tempted to resolve the issue raised by the motion—
see sidebar on Confer before Filing. Your instructor Confer before Filing
will inform you of the motion boilerplate customar-
A growing number of federal district courts have
ily used in the courts of your locality.)
adopted local rules requiring a litigant to confer
with her opponent before filing a motion. District
Your Local Notes
of Oregon Local Rule 7.1 is typical:
_________________________________________________
(1) The first paragraph of every motion must cer-
_________________________________________________ tify that: (A) The parties made a good faith effort
through personal or telephone conferences to re-
solve the dispute, and have been unable to do so;
or (B) The opposing party willfully refused to con-
How the motion body and the memorandum refer.
late to each other varies considerably according to
the customs of each jurisdiction. In what is perhaps (2) The court may deny any motion that fails to
the most common permutation (and the one we will meet this certification requirement.
follow), the motion and memorandum are each Confer before filing rules originated as a mech-
complete, separate, self-contained court papers, anism for reducing the glut of discovery motions
each with its own caption, signature line, and cer- clogging the courts. The theory is that the attor-
tificate of mailing. In some jurisdictions, the pre- neys ought to be able to reach reasonable compro-
ferred practice is to combine the motion and mem- mises on many issues instead of involving the judge
orandum in a single document, with a single caption in routine procedural disputes. Skeptics may doubt
and certificate of mailing (but perhaps with sepa- whether many motions are avoided by such rules;
rate signature lines for the motion and memoran- more often than not, in the authors’ experience,
dum). In still others, the motion and memorandum their effect is merely to add another hoop for the
are combined but a separate notice of motion is removing party to jump through, delaying resolu-
quired. Unfortunately, local rules rarely cover lay- tion. Nevertheless, the trend is in the direction of
out details of this kind—other practitioners’ mo- broader adoption of confer before filing rules, so we
tions are the best source of guidance. as litigators and litigation paralegals must take
care to comply with them.
Step 2 Draft the Memorandum
signed around the central goal of persuading the

In federal court, the memorandum is the key to a judge to rule our way.
successful motion. Even in districts that routinely How can we make our motions more persua-
allow oral argument on motions—which are be- sive? Here are a few tips:
coming fewer and fewer—most federal judges do
■ Concentrate mainly on fairness, not legali-
read the motion papers, and often have their law
ties. Arguments citing endless legal authori-
clerks analyze the memoranda and recommend a
ties, aimed at showing through laborious log-
ruling, all in advance of the hearing. By the time the
ical gymnastics that “the law” requires the
hearing is held, the judge’s mind is made up, or
result that we want, are rarely enough. The
nearly so. (State court practice may differ, and oral
opposing party can always (well, almost al-
argument may take on much greater relative impor-
ways) find legal authorities contrary to ours.
tance. State court judges often have punishingly
If we can convince the judge that ruling our
large caseloads, rarely have law clerks, and do not
way is the right thing to do, and provide at
always have time to read motions in advance of oral
least enough legal authority on which to hang
argument.)
a decision in our favor, we will win. If the
Writing to Persuade—Our goal in writing a mem- judge concludes that ruling the way we want
orandum is to convince the judge to do some- would be the wrong thing to do, we will lose,
thing—usually something that our opponent will regardless of how logically compelling our ar-
not like. Everything about a memorandum—style, guments may be.
layout, format, choice of words, and especially or- ■ Nevertheless, research the law thoroughly. If
ganization and content of argument—must be de- our opponent is able to cite controlling case
law or statutes contrary to our position, and the discretion of the writer. Therefore, there is no
we have not discussed them or explained such thing as the “right” way to organize a memo-
why they do not entitle our opponent to win, randum; there are many acceptable styles. In the
we suffer a serious loss of credibility. Further, discussion to follow, we present our own preferred
if the judge concludes that considerations of layout; in your class discussion, your instructor
fairness favor neither side, the winner is may disagree with some of our preferences, or sug-
likely to be the party with the weight of legal gest modifications based on local custom.
authority on his side.
■ Concentrate on advancing our own argu- Your Local Notes
ment, not on responding to the opposing _________________________________________________
party’s argument. This does not mean that we
ignore the opposing party’s arguments—of _________________________________________________
course, we must respond to them and explain
why they do not prevent the judge from doing
what we want. But our main focus should be Whatever the style and organization chosen,
on the positives of our own position, not the the argument should be broken into logical
negatives of our opponent’s. subtopics under appropriate headings. (In some
■ Organize the argument in such a way that the courts, the local rules specifically require this.)
judge can find and grasp our main points Each heading should express a complete idea and
quickly. The amount of time that a judge can encapsulate the point of the section they accom-
spend reading each motion or response is pany. The goal is not merely to convey the topic of
limited. We do not want the judge to spend the section, but, if possible, the desired conclusion
that time trying to figure out what we meant and the reason for it. To accomplish this, of course,
to say. A short, accurate summary of the main our headings will need to be sentence length, not
points at the beginning, and descriptive, well- merely one or two words. Ideally, a reader should
organized headings and subheadings will be able to understand the thrust of our argument by
help the judge zero in on the issues quickly. reading the headings alone.
Here are a few examples to clarify what we
■ Write in a style that is clear, direct, profes-
mean. Assume we represent defendant Park Hotels
sional, and to the point. As a rule, avoid liter-
Group in our hypothetical lawsuit Martin v. Collins,
ary writing, colloquialisms, and any other styl-
and we have just written a section of a memoran-
istic mannerisms that may divert the reader’s
dum in which we attack the causation issue, arguing
attention from the argument being made.
that the hotel did not cause Shannon’s injuries.
■ Keep it short. A motion is not a textbook on What would be a suitable heading?
whatever branch of the law the motion is con-
cerned with. A single citation of a controlling How not to do it: B. Causation
case that is directly on point is more persua- Better: B. Defendant Did Not
Cause Plaintiff’s
sive than pages of string cites (successive
Injuries
chain of case citations). Better yet: B. It Was Defendant
■ Be meticulous about supporting every asser- Collins, Not Park
tion with evidence and legal authority. Take Hotels, Who Broke
nothing for granted. See sidebar on Backing Plaintiff’s Finger
Up What We Say.
■ Never engage in personal attacks on oppo- Parts of a Memorandum—Our suggested basic
nents. Tempting though it may sometimes be memorandum format comprises four main parts as
to portray opposing counsel as an unprinci- follows:
pled villain, doing so will, at a minimum, dis-
1. Summary of Argument. If the judge sees only
tract attention from our real arguments, and
one thing in our memorandum, it will likely be
may also annoy the judge.
whatever is on the first page below the cap-
tion—that is the prime real estate in a memo-
Organizing the Memorandum—In most courts, randum. Therefore, our preferred layout be-
the rules do not specify how a motion or memoran- gins with a section entitled “Summary of
dum is to be organized. The sequence of argument, Argument” in which we lay out the main
the division into sections, the use and layout of points of our argument in a few short, simple,
headings and subheadings—all of these are left to easy-to-grasp sentences. Ideally, the judge
should be able to skim our Summary of Argu- being addressed; we organize the argument in
ment section in less than a minute, and come whatever way expresses our point most con-
away with a reasonable understanding of the vincingly. Absent good reasons to choose some
argument we are making in the memorandum. other strategy, we would usually follow a loose
(Although it begins the memorandum, we usu- outline format. We begin with a short section in
ally prefer to write this section last, when we which we state the conclusion and summarize
have the details of our argument more clearly the main points supporting it in a few sen-
in mind.) tences. Then follow a series of subsections, one
for each main point, in which we explain each
2. Factual background. Never assume that the
of the main points in detail. If any of the main
judge is familiar with the facts of the case.
points is complex, we may apply the same out-
Judges are often responsible for hundreds of
line strategy again. That is, we begin the sub-
cases, and cannot possibly remember even the
section with a short summary of the arguments
broad outlines of each one, let alone the de-
supporting the main point, and follow with sub-
tails. If there are any facts about our case that
subsections detailing each one.
the judge needs to know in order to understand
our motion, it is up to us to supply them. Usu- 4. Conclusion. We end the memorandum with a
ally, this should be done in a separate section short conclusion, in which we again state the
at the beginning of the memorandum, before main proposition that we are arguing for, and
we get into the legal arguments. again briefly summarize the main points sup-
The factual background section should begin porting it. You may reasonably wonder, are we
with a heading that conveys the main factual not repeating ourselves overly much?
point we are trying to make. If the required Repeating ourselves, yes; overly much, no. It
facts are not simple enough to be expressed in is true that by the time we get to the end of the
a page or less, the factual background section memorandum we will have stated our conclu-
should be broken up into subsections each sion and main points at least three times. In
with its own heading. part, this follows a well-known truism of advo-
Factual statements must be supported by ev- cacy: “Tell them what you’re going to tell them;
idence; this is done by quoting from deposition then tell them what you’re telling them; then
transcripts and/or by attaching affidavits and tell them what you told them.” In part, the rep-
other supporting documents (see Step 3 later etition merely concedes the reality: we can
and also the sidebar on Backing Up What We never assume that the judge will read the entire
Say). memorandum, so we must do everything pos-
In some jurisdictions, local rules also require sible to improve the odds that at least the main
a separate statement of facts to accompany points will get across.
some motions (such as motions for summary
judgment). The separate statement of facts is Rechecking, Revising, Rewriting—Having writ-
typically a separate document, with its own ten the memorandum, are we done? By no means.
caption. It lists the factual assertions on which Advocative writing in litigation is unlike any other
the motion depends in a series of short, num- kind of writing, in that there is an opposing party
bered paragraphs, citing the source or support who is highly motivated to take apart what we
for each. The separate statement of facts is not wrote and call attention to every flaw. Therefore,
the same as the factual background section of before declaring the job done, we attack our own
the memorandum, and the memorandum still memorandum in the same way that our opponent
needs to have its own discussion of factual will, looking for weaknesses and mistakes.
background. The separate statement of facts We double-check every fact. We proofread all
merely lists each fact in a sterile fashion, with- quotes for accuracy. We check the citations, and
out attempting to relate one fact to another or Shepardize, KeyCite, or otherwise verify that none
to draw conclusions or inferences from them. of the cases we have cited has been overruled. We
In the factual background section of the memo- check the Summary of Argument section with a
randum, we try to weave the facts into a com- fresh eye, to be sure that it is clear, logical, and as
pelling story, one that will help sway the judge short and concise as possible. We go through the
to rule our way. entire memorandum editing, revising, rewriting,
3. Argument. The argument section is the main eliminating unnecessary verbiage, and rewording
part of the memorandum and usually the awkward passages. There is no such thing as good
largest. Its organization depends on the issues writing—only good rewriting.
SIDEBAR
Backing Up What We Say
An argument consists of a series of statements that we assertions as attachments to the memorandum. (See
hope leads to a logical conclusion. For the conclusion Step 3 of this workshop.) Suppose, for example, we
to be believable, all of the statements on which it is are arguing that Dr. Collins committed battery
based must be true. against Shannon and we want to establish the ele-
A memorandum in support of a motion is a writ- ment of “harmful or offensive contact” by referring to
ten argument. The validity of the conclusion—that the Shannon’s broken finger. It is not enough merely to
judge should make the ruling that we are asking for— state in our argument that Dr. Collins broke Shan-
depends on the reliability of the statements or asser- non’s finger; we must provide evidence that he did so.
tions leading to it. In a legal argument, the support- An affidavit signed by Shannon stating that he did so
ing assertions are of two main kinds: (1) statements of would suffice.
fact—that is, statements describing some situation or Whenever we assert a legal rule, we must include
event; and (2) statements of legal principles—state- a citation to authority; that is, we must tell the reader
ments whose purpose is to establish the legal rules ap- where to go to verify that the rule is what we say it is.
plicable to the situation. For example, if we argue that a cause of action for bat-
The judge will not take our word for it that the tery requires proof of “harmful or offensive contact,”
statements we make in an argument are true. It is up we must tell the reader where to find some authorita-
to us to back up everything we say. Each factual as- tive source that says so. We might give the citation of
sertion we make in our memorandum must be sup- a case decided by an appellate court in which the ele-
ported with evidence. Testimony of a witness (an affi- ments of battery are stated, or, if our jurisdiction ac-
davit or excerpt from a deposition) is evidence; cepts the Restatement as authority, we might cite Sec-
documents can be evidence (but we will still need tes- tion 21 of the Restatement 2d, Torts. (For a full
timony of a witness to establish the genuineness and exploration of the various sources that can be used as
admissibility of the documents). Usually, we submit authority in a legal argument, consult a course or text-
copies of the evidence needed to support our factual book on legal research and writing.)
support of a motion, those portions of the

Step 3 Assemble the Attachments discovery or disclosure which are relevant to
the motion shall be submitted with the motion
and attached thereto as exhibits.
Whether a motion requires attachments, and what
Here are some examples of documents that may
attachments are required, depends on the type of
be submitted as attachments to motions where
motion and, to some extent, on the local rules. It is
appropriate:
also sometimes advantageous to attach documents
to a motion even if the applicable rules do not re- ■ Copies of answers to interrogatories, responses
quire it—if there is some document that will make to requests for admissions, and deposition tran-
our presentation more convincing, certainly we scripts. When we make factual statements in
should attach a copy. the memorandum, we must back them up
What kinds of documents might we consider with evidence. To use an example from our
including as attachments to a motion? What kinds Martin v. Collins hypo, suppose, in a memo-
of attachments are required? Here is a typical local randum supporting a motion, we needed to
rule (from Local Rule CV-7, Eastern District of base some argument on the fact that Dr.
Texas): Collins obtained the key that he used to enter
Shannon’s room from Arnie Trevayne. Merely
When allegations of fact not appearing in
stating the fact is not enough; we must sup-
the record are relied upon in support of a
motion, all affidavits and other pertinent port it with evidence. One way to do this
documents shall be served and filed with the might be to cite Dr. Collins’s deposition testi-
motion. mony. Better yet, if our opponent has admit-
. . . When discovery or disclosure ted whatever fact it is that we want to estab-
documents or portions thereof are needed in lish—perhaps in answers to interrogatories
or responses to requests for admissions—we to, so that the judge can find it with the least possi-
can use our opponent’s own words to make ble expenditure of time and effort.
our point. Where there are multiple attachments, they
When we refer to a discovery document to should be separated using colored or tabbed di-
support a factual assertion, must we attach viders, and referred to by number or other suitable
the document? In some courts (such as the designation. A common way to do this is to number
Eastern District of Texas, whose local rule we the attachments sequentially, and refer to them by
quoted earlier), clearly we must. In some number in the body of the argument. Consider, for
other jurisdictions, citing the source docu- example, the following excerpt from a hypothetical
ment is enough. memorandum:
■ Copies of documents that play a central role . . . Defendant Collins then threw himself on
in the case. For example, if we are preparing top of plaintiff, wrenching the pistol from her
a motion in a breach of contract suit, and hand and breaking her finger. See Affidavit of
we need to refer to the provisions of the Shannon Martin dated November 19, 2000,
contract in the motion, it may be desirable Attachment 4 hereto, at paragraph 14. . . .
to attach a copy. Technically speaking, a
Now if the judge wants to see exactly what the affi-
document of this kind is not evidence until
davit says, he or she can easily locate the tab or di-
there has been testimony to identify and
vider for Attachment 4 and find the cited passage.
authenticate it. Therefore, it is usually nec-
The person whom we are targeting with our at-
essary also to attach an affidavit or quote
tachments is, of course, the judge. It is improper,
an excerpt from deposition testimony in
however, to submit documents in support of a mo-
which a witness testifies to the facts
tion without providing copies to the other litigants.
needed to make the document admissible.
Whatever package of attachments we provide for
What facts? The answer depends on the
the judge, we must include the same package when
document and the situation—consult a
we serve the motion on the other parties. If, in the
textbook on the law of evidence, or see the
judge’s copy, we included tabbed dividers or high-
Federal Rules of Evidence, especially Rules
lighted certain passages, we must do the same in
901 through 1008.
the copies served on other parties.
■ Copies of cases, statutes, or other legal au- Whether we include the attachments in the
thorities. In general, when we cite a legal au- package we file with the clerk of the court depends
thority such as an appellate case or statute, on local practice. In some courts, to reduce the vol-
it is sufficient to give the citation; that is, a ume of paper flowing through the clerks’ offices, at-
reference to the source where the case or tachments to motions are included with the judge’s
statute may be found. We do not attach copy of a motion, but not with the copy filed with
copies of cases or statutes to our memo- the clerk. The judge will discard his copy of the mo-
randum unless there are special reasons for tion papers as soon as the motion is decided, and
doing so. When might we decide to attach a thereafter only the motion and memorandum will
copy of a case or statute? If the source is appear in the clerk’s file.
unusually difficult to find—a statute from a
foreign country, for example—we would at-
Your Local Notes
tach a copy. Our personal preference would
be to also provide a copy of a case or _________________________________________________
statute if it is important enough in our ar-
_________________________________________________
gument that we want to encourage the
judge to read it, and it comes from a source
that the judge is not likely to have readily
available in her office.
CONCLUDING STEPS
As a general rule, when we attach documents to a
motion or memorandum, we attach only the rele- When we have assembled our motion papers—mo-
vant pages. If, for example, we are quoting one para- tion, memorandum, and attachments—into a com-
graph of testimony from a 200-page deposition, we plete package, it is time to submit the motion to the
attach only the page on which the testimony ap- court for a decision. In all courts, this entails at
pears, not the whole deposition. We recommend us- least filing the motion papers with the clerk and
ing a highlighter to mark the exact passage referred serving copies on the other parties to the suit (see
SIDEBAR
Responding to a Motion
Writing a response to a motion is a good deal like writ- The Importance of Docketing and Deadlines
ing a motion. You might suppose that a response Attention to deadlines is always important in liti-
memorandum would be devoted mainly to answering gation, and nowhere more so than in responding to
the arguments made in the motion you are respond- motions. In federal district court, the local rules estab-
ing to, but such is not the case. To write a good relish the formula for computing the response deadline;
sponse to a motion, imagine that you are writing a your instructor will tell you how to find the rules that
new and separate motion, asking the court to do the apply in the state courts of your locality. In many
opposite of what is asked for by the motion to which courts, if the response has not been filed by the ap-
you are responding. It is appropriate to challenge the plicable deadline, the motion is presented to the judge
moving party’s arguments if doing so will help ad- for ruling immediately and, usually, is summarily
vance your own argument. But the purpose of a re- granted.
sponse is not to offer a point-by-point refutation of the
How to Research a Response
moving party’s memorandum. The purpose of a re-
sponse is to present an argument that will persuade How do we research a response? From scratch.
the court to deny the motion. The legal argument in a motion can be thought of as
a series of statements of claimed legal rules, each sup-
The Mechanics of Response Writing
ported by citation of case law or statute. That argu-
The format and layout of a response is similar to that ment may be flawed in three main ways: (1) The cases
of a motion, except that we would not include a part cor- or statutes cited may not really support the legal rules
responding to what we have called the motion proper— claimed; (2) there may be other, better cases or
the boilerplate preamble that recites what the motion is statutes that support a different legal rule; or (3) there
asking for. Unless local rules or customs require otherwise, may be other legal rules which, if applied, would un-
a response should consist of the response memorandum dercut the moving party’s entire chain of argument. If
and attachments to it, if any. Everything that we have all that we do is research the issues argued by our op-
said about writing the memorandum in support of a mo- ponent, we will never become aware of other possible
tion applies equally to a memorandum opposing a mo- lines of argument that might easily allow us to win.
tion, and the organization is similar: a summary of argu-
A helpful technique is to pretend that there is no
ment, a section on factual background, an argument
memorandum supporting our opponent’s motion.
with headings and subheadings, and a conclusion.
There is only the motion itself, stating only the ruling
Arguing the Facts in a Response that our opponent is seeking. We pretend that the
With some motions, the main disagreement may judge has expressed an inclination to grant the motion
be over a legal issue—both sides may agree on what unless we can show why not. In that way, we approach
the facts are. If so, there is no need to repeat them in the problem with a fresh point of view. After we have
detail in the response. Nevertheless, if the motion is thoroughly explored all of the possible arguments, only
written well, the presentation of factual background then do we begin dissecting our opponent’s memoran-
will be slanted in subtle ways to favor the moving dum, reading the cases cited, Shepardizing or KeyCit-
party’s argument. Therefore, a response should almost ing, and verifying that our opponent’s citations really
always include its own version of the facts deemed im- support the points for which they are cited.
portant, reshaped to favor the responding party.
Step 4). What else is required depends on local Step 4 File and Serve
practice, as we will see in Step 5. The opposing
party has an opportunity to respond to the motion
and present argument against it (see sidebar); then As with any other filed court paper, we serve
we may reply to our opponent’s response (Steps 6 copies of the motion, memorandum, and attach-
and 7). Finally, if there is to be a hearing on the moment on all other parties. FRCP, Rule 5(a), provides,
tion, both sides must prepare and present argument “. . . every written motion other than one which
(Step 8). There may also be things that we need to may be heard ex parte . . . shall be served on each
do to follow up on the ruling (Step 9). of the parties. . . .” FRCP, Rule 5(a), requires us to
serve all other parties, not only the opposing par- signed judge’s office.) Each judge’s own clerical
ties. If, for example, we represent one defendant staff keeps track of the status of all pending motions
out of several, we must serve copies of our motion assigned to that judge. In a federal district court,
papers not only on plaintiff but on the other defen- the judge has one or more law clerks, usually recent
dants as well. law school graduates who take a one-year clerkship
We file the original motion and memorandum appointment to gain experience. Often, motions are
with the clerk of the court. FRCP, Rule 5(d), pro- assigned first to one of the law clerks, who writes a
vides “All papers after the complaint required to be memorandum for the judge summarizing each
served upon a party, together with a certificate of side’s position and perhaps recommending an out-
service, shall be filed with the court within a rea- come. When the motion is ready for decision—ei-
sonable time after service. . . .” Whether or not we ther the motion, response, and reply are all present
include the attachments, if any, in the materials and accounted for, or the deadlines for filing them
filed with the clerk depends on local practice. have passed—the judge’s staff places the motion
In some jurisdictions, we also serve a copy of papers, any necessary parts of the court file, and
the motion papers on the judge who will decide the the law clerk’s memo, if any, in the judge’s “in bas-
motion. See Step 5. ket.” The judge reads whatever parts of these she
deems necessary and makes a decision.
Your Local Notes
Your Local Notes
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
Do What Is Necessary to Put the

Step 5 Motion before the Judge for Decision After Hearing—Traditionally—as re-
Decision cently as a decade or so ago in federal court, and
even today in some state courts—it has been the
Merely filing a motion may or may not be enough to normal practice for attorneys to present oral argu-
start the machinery moving to get the motion de- ment before the judge rules on a motion. Motions
cided. A judge, not the clerk’s office, must rule on would routinely be scheduled for a hearing, either
the motion, so someone must do something to make in the courtroom or in the judge’s chambers. At the
the motion come to the judge’s attention. Who must hearing, the judge would hear argument, ask ques-
do what depends on the local rules and customs. tions, and perhaps announce a decision then and
there.
Decision Without Oral Argument—The trend The reason for courts’ increasing reluctance to
in federal district courts is to decide most motions hear argument on motions is that motion hearings
on the filed motion papers alone, without hearing are time consuming and expensive. On motion day
oral argument. After one party files a motion, the in a busy federal district court, it is not unusual to
opposing party is given a fixed period of time in see fifty lawyers sitting around for several hours,
which to file a response. If a response is filed within collectively charging their clients thousands of dol-
the allowed time, the moving party has a fixed num- lars per hour, with nothing to do but wait for the
ber of days in which to file a reply. After the reply judge to finish the cases ahead of them. Many fed-
time has expired, or earlier if the response is not eral judges have little enthusiasm for listening to at-
filed within the allotted time, the judge makes a de- torneys talk about arguments that could just as well
cision based on each sides’ motion papers. The have been made in the motion papers. (On the
judge then announces the decision in a minute en- other hand, many attorneys feel that oral argument
try (or, in some cases, a published opinion) which allows them to focus the judge’s attention on the
is sent to the attorneys in due course. points they consider most important, in a way that
How are the motion papers routed to the judge written argument does not.)
for decision? In many courts, the rules require us to Nowadays, most federal courts will schedule a
file two copies of the motion papers with the clerk hearing on a routine motion only if one of the parties
(the original plus a copy). The clerk places the orig- makes a formal, written request. Even then, it is up to
inal in the court file and transmits the copy to the the judge whether to allow a hearing—federal judges
judge’s office. (A common variation is to provide for often refuse. Other courts allow hearings on disposi-
only the original to be filed, but require the parties tive motions—motions that have the potential to end
to deliver copies of their motion papers to the as- the lawsuit if granted, such as motions for summary
judgment and motions to dismiss—but not on other Unless otherwise ordered by the Court, all
routine motions. In some state courts, and a dwin- memoranda in opposition to a motion shall be
dling number of federal courts, judges still decide filed within fourteen days of the service of the
most motions after hearing oral argument. motion and any reply memoranda within eleven
When courts do hold hearings on motions, how days after service of the opposition
memoranda. . . . Where service is made by mail,
are they scheduled? In courts that require a formal
the provisions of Fed. R. Civ. P. 6(e) apply.
request for oral argument, the judge’s staff typically [Source: District of Maryland Local Rule 105(2).]
schedules the hearing and notifies the parties of the
date and time. Courts that routinely hear argument Notice that the due date for the reply depends on
on motions may also schedule the hearings and no- when the response is served; therefore we cannot
tify the parties, or may put the onus on the moving docket the reply date until we receive the response.
party to obtain a hearing date from the judge’s staff Needless to say, if the court schedules a hearing
and notify the other parties. on our motion, we immediately docket the hearing
As you can see, each court has its own proce- date in the office’s central calendar.
dure for getting motions decided. Unfortunately, lo-
cal rules sometimes do not spell out everything that Your Local Notes
a moving party is expected to do. To be effective as
_________________________________________________
a litigation paralegal, it is important for you to know
how to find out about a court’s unwritten proce- _________________________________________________
dures and customs. How can you do it? If necessary,
you can contact the clerk’s office and ask one of the
deputy clerks to explain the procedure to you.
Analyze Response
Step 7 and Prepare Reply
Your Local Notes
_________________________________________________
After we have filed our motion and docketed the re-
_________________________________________________ sponse date and hearing date, if any, there is noth-
ing to do until the response arrives. When it does,
we analyze it carefully to assess how best to reply.
A reply memorandum should do more than
merely counter the arguments made in the re-
Docket Response, Reply, sponse. If we devote the entire reply to the points
Step 6 and Hearing Dates raised by our opponent, we are simply focusing the
judge’s attention on our opponent’s arguments. To
When we file a motion, we immediately compute the prepare a reply, we begin by reviewing our own mo-
due date of the opposing party’s response, and en- tion. We note how our opponent has responded to
ter a notation in the office’s central calendar and in each of our arguments, with special attention to the
our personal calendar. Why? The docket entry will points that our opponent has failed to answer.
remind us to look for the response and to make ap- The reply should first briefly reiterate the rea-
propriate inquiry if we do not see it. Of course, if the sons why the court should grant our motion. We
court does not receive the response to a motion by review the main points made in our motion, one by
the due date, many judges will summarily grant the one. If our opponent has failed to answer any of
motion, which is fine with us if we represent the our arguments, we call attention to that fact, and
moving party. The problem, however, is that it may take the opportunity to reemphasize the now
only be our copy of the response that got lost. Now, undisputed point. As for the arguments that our
the tables are turned—our reply to the response will opponent’s response does address, we first restate
be late because we are not aware the response has concisely our own position and summarize the
been filed, and the judge may rule based on the mo- reasons supporting it; then we show why our op-
tion and response without our having an opportu- ponent’s counterargument is invalid; then we reit-
nity to reply. erate our own position, which we have now shown
How do we compute the response and reply to be superior to that of our opponent. In this way,
dates? How much time is allowed? The Federal we recast the debate in terms that favor our posi-
Rules of Civil Procedure do not answer this question, instead of letting our opponent set the focus.
tion. Time limits pertaining to motions are left to The format of a reply, like that of a response, is
each court to determine by local rule, and they vary not usually specified precisely in the local rules. Un-
widely. Here is an example of a typical rule: less local rules or customs dictate otherwise, our
preference is to launch into the argument immedi- frequent interruptions of their opponent’s argu-
ately below the caption, rather than take up valuable ments, to the point that it becomes necessary to re-
first-page real estate reciting that we “hereby reply to taliate in kind to avoid having the argument domi-
plaintiff’s response to defendant’s motion for,” etc.— nated by one’s opponent.
a fact that is obvious from the title of the document. The attorney presenting oral argument must be
A reply memorandum should be short, as befits prepared not only to lead the judge through the
its purpose, which is to allow the moving party to ad- main points of the motion, but to answer probing
dress any new issues raised by the response. You may questions about any detail, perhaps while fending
sometimes see someone deliberately save the best ar- off interruptions by opposing counsel. It goes with-
gument for the reply, so that the opposing party has out saying that the arguer must be thoroughly fa-
no opportunity to respond to it. This tactic—known in miliar with his own motion papers, and those of the
the vernacular as “sandbagging”—is a breach of liti- opposing party, but that, alone, is not enough.
gation etiquette, and risks a good scolding by the Judges’ questions may also delve into the specific
judge. A well-written reply should address any dam- facts of the cases cited in either the motion or the
aging points made in the response, but do so in the response; into the wording of statutes or rules
context of reemphasizing the high points of the mov- whose interpretation may be at issue; into the
ing party’s argument and recasting the focus of the de- pleadings or other papers in the court file; and into
bate on the moving party’s terms. the factual particulars of the documents, if any, at-
tached as evidentiary support for the motion.
The paralegal’s main role in this preparation is to
Step 8 Prepare and Assist at Argument assemble all of the necessary materials—motion pa-
pers, attachments, copies of cases and statutes, and
any other documents that may be helpful—and to
If the court hears oral argument on a motion, an at-
package them in such a way as to facilitate the attor-
torney must make the presentation. Paralegals can,
ney’s review. Some attorneys find it helpful to have
however, attend motion hearings to observe and as-
these materials organized in a three-ring binder, so
sist. Paralegals can also assist the attorney with the
that all of the pertinent papers are at hand in one place.
preparation of the argument.
At the motion hearing, the paralegal can be
Good preparation for a motion hearing entails
most helpful by standing ready to retrieve needed
becoming as familiar as possible with every detail of
items quickly. If, for example, the judge asks a ques-
every issue addressed by the motion or response.
tion about one of the cases cited, the paralegal
Motion hearings are very unpredictable; an attorney
should be able to produce a copy of the opinion,
arguing a motion must be prepared for anything.
preferably with the important passages high-
Sometimes, the judge will have read the motion
lighted. The paralegal should not, however, inter-
papers thoroughly and understood the issues per-
rupt the attorney while the argument is under way,
fectly, and will begin the argument by asking if either
even while the opposing attorney is speaking.
attorney has anything to add to what is in the written
filings. If either attorney stands up and begins repeat-
ing what is already in the motion papers, the judge is Step 9 Follow Up and Deal with Ruling
likely to interrupt, sometimes not too politely.
At other times, the judge may not have even
looked at the motion papers before the hearing, and If a hearing is held on a motion, the judge may an-
will be surreptitiously skimming them as the attor- nounce a decision at the conclusion of the hearing. Of-
neys present argument. Then it is essential for the ten, however, the judge will take the decision under ad-
attorney to cover the main points in oral argument. visement—that is, defer the ruling until later, perhaps
The rules governing who speaks when are also to allow time for further reflection, or perhaps merely
often unpredictable. In theory, the moving party to avoid the awkwardness of having to give the losing
speaks first; then the responding party responds; party the bad news in person. In that case, or if the
then the moving party has the last word. However, court does not hear oral argument, the court must no-
real-life oral arguments seldom follow the pre- tify the attorneys of the ruling after the judge has de-
scribed pattern. For one thing, many judges inter- cided. Usually this is done by issuing a minute entry.
rupt with questions during argument. Skilled attor- Herein lies a potential dilemma for the litigants.
neys welcome the judge’s questions, because they A motion ruling, particularly on a dispositive motion
reveal which arguments the judge is finding most such as a motion for summary judgment, can have a
persuasive or unpersuasive. More troublesome, huge impact on our case. We do not want to waste
however, are interruptions by the opposing attor- time conducting discovery and preparing for trial on
ney. Some judges allow attorneys to get away with some issue that may be foreclosed by the judge’s rul-
ing on a motion. However, judges sometimes take a Here is the hypothetical assignment: Assume
very long time to rule on a motion, and it is consid- that we represent Park Hotels Group, Inc. Diligent
ered bad form (and, by some attorneys, bad luck!) to paralegals that we are, while working on our issues
badger the judge’s secretary with repeated inquiries. outline, we decide to do a Westlaw search to see
Suppose a month passes, and we do not receive a rul- whether there were any statutes that might be use-
ing. Is it because the judge has still not ruled or is it ful in building a defense. Our search turns up sec-
because the ruling got lost in the mail? Most litigation 651.15 of the Nevada Revised Statutes, which
tors let a reasonable period of time go by—a few provides as follows:
weeks or a month, depending somewhat on the par-
ticular judge’s reputation for promptness—then 651.15 Civil liability of innkeepers for
check to see if opposing counsel has heard anything death or injury of person on
and, if not, perhaps contact the court. premises caused by person who
Suppose the judge’s ruling is not to our liking. Is is not employee.
there anything that we can do about it? Can we appeal? 1. An owner or keeper of any hotel, inn,
One option is to file a motion for reconsideration motel, motor court, boardinghouse or
of the judge’s ruling. As a practical matter, however, lodginghouse is not civilly liable for the death
such motions are almost never granted unless the or injury of a patron or other person on the
judge’s ruling reflects some obvious mistake. Motions premises caused by another person who is not
an employee under the control or supervision
for reconsideration that merely reargue the points
of the owner or keeper unless:
made in the original motion papers are overwhelm-
ingly unlikely to succeed at anything other than an- (a) The wrongful act which caused the
noying the judge. Many federal district courts have death or injury was foreseeable; and
adopted local rules governing motions for reconsid- (b) There is a preponderance of evidence
eration. Often, these provide that no response need that the owner or keeper did not exercise due
be filed unless the judge asks for one, the assumption care for the safety of the patron or other
being that the judge will usually deny the motion for person on the premises.
reconsideration without needing to see a response. 2. An owner or keeper of any hotel, inn, motel,
As for appellate remedies, the general rule is motor court, boardinghouse or lodginghouse is
that an appeal may be taken only from a final judg- civilly liable for the death or injury of a patron or
ment that disposes of the entire case. Judges make other person on the premises caused by another
person who is not an employee under the control
many rulings during the course of a lawsuit; if there
or supervision of the owner or keeper if:
were to be a multi-year detour through the court of
appeals every time the judge rules on a motion, law- (a) The wrongful act which caused the
suits might well go on forever! Nevertheless, there death or injury was foreseeable; and
are procedures whereby, under extraordinary cir- (b) The owner or keeper failed to take
cumstances, the court of appeals may hear an ap- reasonable precautions against the
peal of an interlocutory decision—a decision that foreseeable wrongful act.
does not result in a final judgment. Generally, inter- The court shall determine as a matter of
locutory review is an option only if the judge’s ruling law whether the wrongful act was foreseeable
is one that, if wrong, could cause extreme and un- and whether the owner or keeper had a duty
usual prejudice—situations in which the potential to take reasonable precautions against the
foreseeable wrongful act of the person who
for harm from an erroneous ruling clearly outweighs
caused the death or injury.
the inefficiency of piecemeal appellate review.
For routine motions, therefore, as a practical mat- 3. For the purposes of this section, a
ter, the judge’s ruling is best regarded as final, at least wrongful act is not foreseeable unless:
until the lawsuit is over and the case is on appeal. (a) The owner or keeper failed to exercise
due care for the safety of the patron or other
person on the premises; or
Writing a Motion: Learning
(b) Prior incidents of similar wrongful acts
by Example occurred on the premises and the owner or keeper
had notice or knowledge of those incidents.
We now apply the principles we have been discussing
by preparing a motion to amend a pleading. In this Naturally, we are overjoyed at this find, our opti-
section, we rough out the skeleton of the motion; then mism clouded only by the fact that the answer has
in the Learning by Doing section, you will adapt the already been filed. But, no matter—we can file a mo-
motion to conform to the rules of your local court, tion to amend the answer, and add an affirmative
and flesh out the memorandum and attachments. defense based on the statute.
We have seen that motion procedure is in large Even though the rule does not require it, some at-
part governed by local rules and customs. The ex- torneys would telephone opposing counsel to inquire
amples that follow assume that the lawsuit is pend- whether consent to the amendment might be given,
ing in the U.S. District Court for the District of Ari- before going to the trouble of filing a motion. The
zona; the local rules for that court can be found on drawback to doing so is that opposing counsel will
the internet at www.azd.uscourts.gov. In the Learn- likely want time to confer with her client before giving
ing by Doing section, we will modify our motion to an answer, and the process will deteriorate into a
conform to the rules of the courts of your locality. game of stalling and telephone tag. Also, if opposing
counsel consents, we will owe a favor. For these rea-
DRAFTING STEPS sons, we would usually file first, get the clock running
on the response, and let opposing counsel offer to
consent to the amendment if she wants to.
Step 1 Draft the Motion Our motion is shown in Figure W14–1.
Motions procedure in the U.S. District Court for the

Step 2 Draft the Memorandum
District of Arizona is governed by Local Rule 1.10.
Checking that rule, we find that there is a confer be-
fore filing provision [Local Rule 1.10(j)], but it ap- As you can see, the motion itself was not difficult to
plies only to discovery motions. draft. The memorandum will require more effort.
Figure W14–1 Sample Motion

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) MOTION FOR LEAVE TO
v. ) AMEND ANSWER
)
)
Defendants. )
___________________________________ )
Defendant Park Hotels Group, Inc. respectfully moves pursuant to Rule 15(a), FRCP, for an order
of the court granting leave to file an amended answer in the form accompanying this motion.
This motion is based upon the accompanying memorandum of points and authorities.
RESPECTFULLY SUBMITTED this 25th day of April, 2000.
__________________________
Gail Stoddard
Attorneys for defendant Park Hotels
Group, Inc.
(Certificate of mailing goes here—see Workshop 4.)
Figure W14–2 Sample Memorandum

Gail Stoddard, Esq.
(602) 555-1234
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) MEMORANDUM OF POINTS
v. ) AND AUTHORITIES IN SUPPORT
) OF MOTION FOR LEAVE TO
ARTHUR COLLINS, et ux., et al., ) AMEND ANSWER
)
Defendants. )
Summary of Argument
1. Nevada statute provides that a hotel is not liable when a guest is injured by a third person not
employed by the hotel, unless the injury is foreseeable. Nev. Rev. Stat. Ann. §651.15.
2. Nevada has the most “significant relationship” to plaintiff’s claims which arise from events at a
Nevada hotel. Defendant’s liability is to be determined according to Nevada law.
3. Defendant seeks leave to amend its answer to add this statutory affirmative defense. FRCP, Rule
15(a), provides that such leave should be freely given.
Argument
1. Factual Background: Plaintiff Was Injured By Another Hotel Guest: The Circumstances Were Unforeseeable.
Plaintiff, while a guest at the Las Vegas hotel operated by defendant Park Hotels Group, had her
finger broken by another hotel guest, defendant Collins. The incident occurred in plaintiff’s room; the
evidence is conflicting as to how defendant Collins came to be there. There is, however, no evidence
whatever that defendant Park Hotels Group. . .
II. Nev. Rev. Stat. Ann. §651.15 Provides A Valid Affirmative Defense To Plaintiff’s Claims Against Defendant
Park Hotels Group
Defendant Park Hotels Group seeks to amend its answer to assert a statutory affirmative defense
arising under Nevada statute. See Nev. Rev. Stat. Ann. §651.15, discussed in detail infra.
A. Nevada Law Determines The Rights And Liabilities Arising From These Injuries Occurring At A
Nevada Hotel.
The liability of defendant Park Hotels Group is to be determined by Nevada law. Plaintiff’s injury occurred
in Nevada, while plaintiff was a guest in a Nevada hotel, and was inflicted by another hotel guest.
Arizona courts apply the “most significant relationship” test to determine which state’s law should
be applied in a tort action . E.g., Bill Alexander Ford, Lincoln Mercury, Inc. v. Casa Ford, Inc., 187 Ariz. 616,
931 P.2d 1126 (Ariz.App. 1996). Clearly, Nevada is the state with the most significant relationship—
continued
Due to space limitations, we present in Figure Rule 1.10(e), which limits size of the memoran-
W14–2 only enough of the memorandum to allow dum to “fifteen (15) pages, exclusive of attach-
you to see its general structure and appearance. ments and any required statement of facts.” This
Checking the local rules, the only provision af- is a simple motion; the memorandum should not
fecting the writing of the memorandum is Local exceed 3 or 4 pages.
Figure W14–2 Sample Memorandum, continued
indeed, the only relationship—to this lawsuit. No events pertinent to this suit occurred in any state
other than Nevada, and . . .
B. In Nevada By Statute, Hotels Are Not Liable To Guests For Unforeseeable Injuries Received From
Other Guests.
Under applicable Nevada law, hotels are not liable to guests for personal injuries inflicted by third
persons who are neither hotel employees nor under the hotel’s control. The only exception to this rule
is for foreseeable injuries, which the governing statute defines in narrow terms. Nev. Rev. Stat. Ann.
§651.15 provides as follows:
An owner or keeper of any hotel, inn, motel, motor court, boardinghouse or lodginghouse is not
civilly liable for the death or injury of a patron or other person on the premises caused by another
person who is not an employee under the control or supervision of the ______
III. Leave to Amend An Answer Is To Be Freely Given Where The Purpose Is To Add A Valid Affirmative
Defense.
The Federal Rules of Civil Procedure contemplate a liberal policy toward amendments of
pleadings. FRCP, Rule 15(a), provides in pertinent part:
[A] party may amend the party’s pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires. . . .
The Court of Appeals for the Ninth Circuit has held that where the purpose of an . . .
IV. Conclusion: This Court Should Grant Defendant Park Hotels Group Leave To Amend Its Answer To Add
Its Statutory Defense Under Nev. Rev. Stat. Ann. §651.15
The Nevada statute governing hotel liability to guests for injuries by other guests, Nev. Rev. Stat.
Ann. §651.15, provides what is potentially a complete defense to the liability asserted against
defendant Park Hotels Group in this lawsuit. All of the events relevant to this lawsuit occurred in
Nevada, and it would in any case be unfair to judge the conduct of a Nevada hotel by the laws of some
state other than Nevada. Taking into account the liberal policy of federal courts toward the
amendment of pleadings, this Court should grant defendant Park Hotels Group leave to file the
amended answer submitted herewith, asserting its defense under the Nevada statute. Defendant’s
motion for leave to amend its answer should be granted.
RESPECTFULLY SUBMITTED this 25th day of April, 2000.
__________________________
Gail Stoddard
Group, Inc.
Step 3 Assemble the Attachments we attach to the motion for leave to amend is
deemed filed if the court grants the motion; in
This being a simple motion, only two attachments other courts, it is necessary to file the amended
are needed. The first is the amended answer that answer as a separate document after the motion is
we are asking leave to file. When moving for leave granted. Either way, the amended answer does
to amend a pleading, it is customary to attach the not add to the existing answer, it replaces the ex-
amended pleading that we are asking to file, so isting answer.
that the judge can see exactly what the proposed We would also attach a photocopy of the
changes are. The amended answer comprises the Nevada statute, since we assume that a federal
entire answer, not just the changed or added por- judge sitting in Arizona probably does not have a
tions. We redo the original answer, retaining set of Nevada statutes handy. There is no need to
everything that was already present, and adding attach copies of Arizona or federal cases. All of
the new material. In some courts, the answer that the cases we are citing stand for well-known legal
principles, so the judge is unlikely to want to read Docket Response, Reply,

them.
Step 6 and Hearing Dates
The proposed amended answer would be in-
cluded in all sets of the motion papers, including District of Arizona Local Rule 1.10(c) provides:
the original to be filed. The copy of the Nevada
(c) Responsive Memorandum. The
statute would be included in the set of attachments opposing party shall, unless otherwise ordered
accompanying the judge’s copy of the motion, and by the Court and except as otherwise provided
those served on other parties, but not the set filed by Rule 56 of the Federal Rules of Civil
with the clerk. The District of Arizona has a local Procedure and paragraph (1) of this Rule, have
rule prohibiting the filing of such attachments; see ten (10) days after service in a civil or criminal
District of Arizona Local Rule 1.9(f)(4). case within which to serve and file a responsive
memorandum.
CONCLUDING STEPS Because we are serving the motion by mail, we add
3 days as provided by FRCP, Rule 6(e), making the
response due 13 days later. We make a notation of
the due date in the office central calendar and in
our personal calendar. We cannot compute the re-
District of Arizona Local Rule 1.9(g) provides: ply date until we receive the response, and there is
no hearing date to docket since the motion will be
(g) Copy for Judge. A clear, legible copy of decided without oral argument.
every pleading or other document filed shall
accompany each original pleading or other
document filed with the Clerk for use by the Analyze Response and Prepare
District Judge or Magistrate Judge to whom the
Step 7 Reply
case is assigned. . . .
District of Arizona Local Rules 1.10(c) and (d) pro-
Therefore, we file the original motion papers with
vide for the party responding to a motion to file and
the clerk, together with a copy for the judge. We
serve a “responsive memorandum,” after which the
serve a copy on each of the other parties by mailing
moving party may file a “reply memorandum.” Ex-
one copy to Shannon’s attorney and one copy to Dr.
cept for the title, these memoranda are identical in
Collins’s attorney, as required by FRCP, Rule 5.
format and appearance to the memorandum in sup-
port of the motion shown under Step 2 earlier. Un-
Do What Is Necessary to Put der District of Arizona Local Rule 1.10(e), a reply
Step 5 the Motion before the Judge memorandum is subject to a shorter page limit (10
for Decision pages).
District of Arizona Local Rule 1.10(h) provides:

Step 8 Prepare and Assist at Argument
(h) Submitted Motions. It is presumed that
motions, other than motions filed pursuant to
Rule 12(b) or Rule 56 of the Federal Rules of Because nondispositive motions are decided with-
Civil Procedure, will be considered and decided out oral argument under District of Arizona prac-
without oral argument, unless otherwise tice, no preparation is necessary.
requested and permitted by the Court.
Local Rule 1.10(f)(2) does offer the option of re- Step 9 Follow Up and Deal with Ruling
questing oral argument. For a simple motion to
amend, however, there is no need to do so, and such
requests are rarely granted in any event. The court will notify us of the judge’s ruling by
Although the local rules do not explicitly say so, minute entry. The practice in the District of Arizona
we can infer—from the presumption of no oral argu- is that if the motion for leave to amend is granted,
ment and from the requirement of filing an extra copy the order granting the motion will direct the clerk to
for the judge—that the clerk’s office will route the mo- file the amended answer that was submitted with
tion to the judge for decision, and that we will be noti- the motion. (This is another example of a proce-
fied of the outcome by minute entry. (If we were filing dural detail not specified by the local rules, verifi-
in an unfamiliar district, we would nonetheless verify able only by inquiring of the clerk’s office or by
this inference via a phone call to the clerk’s office.) searching the case law for a sample order.)
Writing a Motion: Learning f. How decisions on motions are communi-

cated to the participants;
by Doing g. When a motion for leave to amend a plead-
Now it is your turn. Your assignment for this working is granted, is it necessary for the moving
shop is to begin with the excerpts from the motion for party to then file the amended pleading
leave to amend as shown in the preceding Learning with the clerk, or does the attachment of
by Example section of this workshop, and produce a the amended pleading to the motion suf-
finished set of motion papers conforming to the rules fice?; and
and customs of the U.S. district court of your locality. h. Any other requirements or customs that
(At your instructor’s option, the state court of your you need to take into account in preparing
locality may be substituted.) Assume the following: a motion for leave to amend an answer.
You are a paralegal in the office of Gail 3. Review, and if possible obtain copies for your
Stoddard, who represents Park Hotels Group, forms file, of a motion, response, and reply
Inc. The firm’s office is in your city (make up a filed in the U.S. district court of your locality to
suitable address). The lawsuit, Martin v. Collins, use as a guide on matters of format, layout,
is pending in the U.S. district court having
and organization. Your instructor may be able
jurisdiction in your locality. The other facts of
the hypothetical are unchanged. You have to provide these or suggest how to obtain
discovered Nev. Rev. Stat. Ann. §651.15 them. Failing that, you can access the court
(reproduced in full in the preceding Learning by files of pending lawsuits at the clerk’s office
Example section), and Ms. Stoddard has (but in that case be prepared to take notes—
assigned to you the task of preparing a motion copies are expensive). Find out exactly what
for leave to amend Park Hotels’ answer to add papers need to be filed in connection with a
the statutory defense. motion in your court, and what each one needs
to contain. Find out whether a notice of motion
EXERCISES is required.
In carrying out this assignment, you should follow 4. Prepare, in final form suitable for filing in the
the step-by-step formula described in this work- U.S. district court of your locality, the motion
shop. papers needed to amend Park Hotels’ answer,
including the following:
1. Locate the local rules of your U.S. district court
pertaining to (a) motions practice and (b) filing a. The motion proper, notice of motion,
of documents with the clerk. (For many dis- and/or other paper required under the
tricts, the local rules can be accessed from the rules and customs of your U.S. District
U.S. Courts Internet site, www.uscourts.gov; if Court; and
the rules for your court are not available there, b. The memorandum in support of the mo-
they can be obtained from the clerk’s office.) tion. You may use the excerpts shown in
2. Determine the following from your local rules, Step 2 of the Learning by Example section
from your instructor, or by calling the clerk’s as a guide, but (i) be sure to follow any sug-
office: gestions of your instructor as necessary to
make the format and organization conform
a. Any page limits applicable to motions and to local practice; and (ii) at your instruc-
responses; tor’s option, replace the case citation and
b. Whether the court holds hearings on mo- related discussion in section II(A) of the
tions, and, if so, how they are scheduled; memorandum with an appropriate case
decided by the appellate courts of your
c. How many copies are filed with the clerk; state.
d. The time periods allowed for response and c. At your instructor’s option, the amended an-
reply; swer is to be attached. Use the answer of Park
e. Any restrictions on the inclusion of attach- Hotels Group, Inc. appearing in the Learning
ments in the original motion papers filed by Example section of Workshop 8, and add
with the clerk; the necessary paragraph.
PRACTICE POINTERS
Writing Tips: Using Transitions
and Providing Clear Explanations
The preparation of effective motions requires clear, concise writing. Such

writing is effortless to follow and assists the reader in connecting one thought
with the next. Although this sounds obvious, it is all too easy to assume that
the reader will understand why you shifted from one idea to the next. After all,
by the time you commit your thoughts to writing, your thought process is so
self-evident to you that explanation seems unnecessary. Remember that read-
ers have not been privy to your analytical maneuvering. They need direction
every step of the way.
Use transitional words and phrases to provide that direction. Imagine that
you are laying a footpath for the reader to follow. Every step should be clearly
set so that all the reader has to do is to follow your verbal signs. Examples of
such verbal signs are:
Additionally Moreover
Although Next
Because On the other hand
Even though Therefore
First (second, third, etc.) To illustrate
For example To the contrary
Furthermore Whereas
However While
In spite of
Incorporate these words into your writing. Use them at the beginning of para-
graphs and to transition from one thought to the next within a paragraph. Ask
yourself as you go from one paragraph to the next what the connection be-
tween the two paragraphs is. Then use the appropriate word or phrase to in-
dicate that connection.
You can also assist readers in moving from one idea to the next by sum-
marizing what you have just said. This summary gives readers some closure
and allows them to assimilate what has been discussed in capsule form. Fre-
quent summaries assist in “teaching” readers the material previously pre-
sented before confronting them with new information.
Similarly, you may anticipate what you are going to discuss by offering
readers a brief preview. Such a preview allows readers to glean the essence of
what is to be discussed in detail. This technique allows them to transition into
new territory with less trepidation because they have been prepared in ad-
vance. They also know specifically what to look for as they read.
Although transitional phrases provide road signs for your reader to fol-
low, you still must consciously focus on explaining your thought process
every step of the way. Lack of explanation is one of the primary flaws in legal
writing. Once writers have thoroughly researched and pondered an issue,
they tend to forget the cognitive steps taken in reaching the conclusion and
assume that anyone would necessarily follow the same steps.
Good writing is just like any other art. It should appear simple to the ob-
server. Figure skaters, dancers, gymnasts, and other athletes and performers
who are highly skilled are a joy to watch because what they do looks decep-
tively easy. Good writing shares that deception. Because readers find the rea-
soning simple to follow, they conclude that the subject matter is simple and
that the conclusions are inescapable.
One of the purposes of preparing motions is to educate the judge. You can
best do that by explaining each step so carefully that the judge cannot possi-
bly go astray. You do not want the judge wondering how you went from Step
A to B. Rather you want to lay out your thinking so clearly and plainly that
even a novice to the law could understand your reasoning. Remember that
judges cannot honor requests they do not understand and will not honor re-
quests for which they can find no legal basis.
TECHNO TIP
When you are on the Internet you may bps it is inherently limited to a fraction
notice that the speed at which you of the speed of the 56k bps (k equaling
communicate varies. Somedays large 1,000) modem. If the site you are at is
files are downloaded with ease. On busy, it may be communicating with
other days it seems that it takes forever you at a speed of substantially less than
to download a small file. Communica- 56k bps, even if it has the capability of
tion speeds are constrained by two fac- transmitting at that rate. Because the
tors: the speed of your modem and number of lines to a site is limited, the
how fast the site you are looking at can site manager can either opt to commu-
respond to you. nicate with a few “visitors” at the site’s
In the late 1990s, the standard maximum rate or to share its informa-
modem operated at a maximum of tion with more visitors at a slower rate
56,000 bits per second (bps). Since (multiplexing). Even if the site is not
ASCII characters are sent in 8-bit busy if your Internet service provider is
blocks, such a modem can send 7,000 maxed out, it cannot pass the site’s in-
characters per second. If your modem formation along to you as fast as the
operates at 9,600, 14,400 or 28,800 site itself can.
FORMS FILE
Summarize the local rules and customs in your jurisdiction

governing the submission and preparation of motions. Make sure
this summary is complete enough that when you are called on to
draft a motion, you can refer to it without having to reference each
specific rule.
KEY TERMS
Movant Notice of motion Responding party

Moving party Respondent
Discovery Motions WORKSHOP
15
INTRODUCTION: HOW DISCOVERY tant, calling for production of your client’s
CAN BECOME ABUSIVE personal income tax returns.1
■ You represent a plaintiff who was injured while
People who are suing each other do not always re-
riding as a passenger in someone else’s car.
spond fully and properly to discovery requests.
While taking your client’s deposition, the
This should not come as any surprise. It is almost
other driver’s attorney is insisting on asking
axiomatic that whatever information one party
questions about a misdemeanor citation for
most earnestly desires is precisely that which the
drunk driving that your client received 2 years
opposing party is least eager to turn over. Disputes
ago.
over discovery are inevitable and frequent, and the
system could not function without mechanisms to
resolve them. THE ADVERSARIAL SIDE
■ You serve interrogatories on your opponent. OF DISCOVERY
Thirty days go by, then 40—no response. You As the foregoing examples make clear, discovery is
make a phone call to inquire. The answers are often a tug of war between the requesting party, who
“almost ready,” you are told; they should be in might like to obtain more than the discovery rules
the mail tomorrow. Another week goes by; allow, and the responding party, who might prefer to
you call again. After still another week the an- disclose less than the rules require. Let us consider
swers finally arrive in the mail. You flip the problem from each of these competing points of
through the inch-thick stack of paper. At least view, beginning with that of the responding party.
a third of the questions are either objected to
or not answered at all. The Responding Party’s Weapons—When a dis-
■ Your supervising attorney is taking the depo- covery request asks for too much, what are the re-
sition of the opposing party. Each time the sponding party’s options? Here are the main ones:
questioning begins to probe a sensitive area, Not responding: The party who receives an im-
the opposing attorney objects and instructs proper discovery request could simply ignore it. We
the witness not to answer. mention this by way of pointing out that it is a poor
choice. The rules require us to respond to all dis-
■ You are assigned to review a number of file
covery requests, however flawed or improper they
boxes full of documents that were produced
may seem. Furthermore, a party who fails to serve
in response to an FRCP, Rule 34, request for
any response to a discovery request within the re-
production of documents. As you begin cata-
sponse time allowed by the rules may be held to
loging them, you find that each box contains a
have waived any objections. Then the judge may or-
mixture of documents from a variety of
der the party to respond to the request, even
sources. Obviously the documents have been
though an objection might otherwise have suc-
deliberately scrambled.
ceeded.
We do not mean to imply that the fault always lies Objecting: The best strategy for dealing with
with the responding party. Litigants also sometimes garden-variety overreaching in a written discovery
attempt to obtain discovery to which they are not request is to serve a response objecting to the of-
entitled: fending item and stating the reasons why the re-
■ Among the interrogatories that your oppo- quest is improper. By objecting, we avoid turning
nent has just served are several that call for over the disputed information to our opponent. This
information that is only marginally relevant, leaves our opponent with the option of abandoning
and will require hundreds of hours of work to
compile.
1
■ Your client is being sued by a neighbor whose There can be circumstances in which a party’s tax
child claims to have been bitten by your returns would be discoverable; tax returns are not,
client’s dog. The opposing attorney has just however, routinely subject to discovery in a tort
served a subpoena on your client’s accoun- suit.
512 WORKSHOP 15 Discovery Motions
the request, or filing a motion to compel asking the (8) that the parties simultaneously file
judge to order us to comply with it. In other words, specified documents or
objecting puts the ball back in our opponent’s court, information enclosed in sealed
and costs us essentially nothing. (We should clarify envelopes to be opened as directed
that there is a potential cost to objecting improperly, by the court.
which is that the judge can make us reimburse the
attorney’s fees that our opponent spends contesting The Propounding Party’s Weapons—The goal
the groundless objection.) of a discovery request is to obtain evidence or in-
Filing a motion for a protective order: When our formation. There are essentially three ways in which
opponent attempts to obtain information improp- an opposing party can try to avoid giving us what
erly via a deposition or a subpoena for documents, we ask for: (1) fail to respond; (2) object or move for
objecting does not necessarily solve our problem. If a protective order; and (3) provide a response that
the opposing attorney is deposing our client, we can purports to be complete but is not. Incomplete re-
object and instruct our client not to answer, but sponses pose a particular challenge. When an im-
what if the witness is a third party? Then the court portant detail is missing from an otherwise com-
reporter will note our objection, the witness will go plete response, the omission may be hard to detect
ahead and answer the objectionable question, and and even harder to prove.
the cat will be out of the bag. Even if the judge even- Suppose we decide that an opposing party’s re-
tually sustains our objection, our opponent will sponse is not adequate. What can we do about it?
have obtained the information that he was seeking. Here are the main options, which are discussed in
Similarly, if our opponent serves a document sub- order of escalating aggressiveness.
poena on a third party, merely expressing our ob- Getting the information in some other way (or
jection will not prevent the third party from turning not at all): One alternative is to seek the informa-
over the subpoenaed documents. tion elsewhere. Unsatisfying though it may seem to
In situations of this kind, the weapon of choice let our opponent get away with breaking the rules,
is a motion for protective order. FRCP, Rule 26(c), there are situations in which this is, in fact, the right
gives the judge broad power to issue an order block- choice. Waging a motion battle to force a proper re-
ing or limiting proposed discovery in advance: sponse will be time consuming, expensive, and di-
(c) Upon motion by a party or by the person vert our attention from the more important job of
from whom discovery is sought . . . the court . . . preparing our case for trial. Even if we win it, there
may make any order which justice requires . . . is no guarantee that we will get the information we
including one or more of the following: want. On the other hand, if we let our opponent’s re-
(1) that the disclosure or discovery sponse stand, and find out the true facts in some
not be had; other way (i.e., investigation or discovery from oth-
(2) that the disclosure or discovery ers), we have our opponent on the record with an
may be had only on specified terms answer that we can prove is false or at least mis-
and conditions, including a leading—good jury ammunition.
designation of the time or place; We may also decide, on reflection, that the in-
(3) that the discovery may be had only
formation in question is simply not worth the effort
by a method of discovery other
than that selected by the party required to get it. In a typical real-life lawsuit, we are
seeking discovery; likely to see inadequate responses to many of our
(4) that certain matters not be discovery requests, and we cannot afford to do bat-
inquired into, or that the scope of tle over all of them. Our time and our client’s money
the disclosure or discovery be are not unlimited, and we want to spend them on the
limited to certain matters; things that will best help us win the lawsuit. We
(5) that discovery be conducted with must therefore prioritize, and have the discipline to
no one present except persons walk away from minor discovery offenses that do
designated by the court; not really affect our prospects of winning.
(6) that a deposition, after being Seeking voluntary compliance: There are, of
sealed, be opened only by order of
course, situations in which we have a vital need for
the court;
(7) that a trade secret or other the evidence or information that we have requested
confidential research, development, and cannot get it anywhere except from our oppo-
or commercial information not be nent. Then, there is no choice but to try to get our
revealed or be revealed only in a opponent to comply with the rules, either by per-
designated way; and suasion or by force.
WORKSHOP 15 Discovery Motions 513
SIDEBAR
A Federal Judge’s Point of View on Discovery Disputes
To the federal judiciary, discovery motions are a operative, practical and sensible, and should
source of considerable frustration. Consider what turn to the courts (or take positions that force
Judge Wayne D. Brazil had to say in In re Convergent others to turn to the courts) only in extraordi-
Technologies Securities Litigation, 108 F.R.D. 328 nary situations that implicate truly significant
(N.D.Cal. 1985): interests.
The courts, sorely pressed by demands to try Noble sentiments, if not, in our view, terribly realistic.
cases promptly and to rule thoughtfully on po- As an indication of how the litigants view the notion
tentially case-dispositive motions, simply do not of cooperating on discovery, consider this: Judge
have the resources to police closely the operation Brazil made the foregoing observations while ruling
of the discovery process. The whole system of on a dispute over when plaintiff would have to an-
civil adjudication would be ground to a virtual swer certain interrogatories—both sides agreed that
halt if the courts were forced to intervene in even plaintiff had to answer, the only dispute was over the
a modest percentage of discovery transactions. timing of the answers. And the two sides had, at that
That fact should impose on counsel an acute point spent $4,000,000 in attorney’s fees and costs—
sense of responsibility about how they handle not on the entire lawsuit, but on that one discovery
discovery matters. They should strive to be co- motion!
You might guess that persuasion is unlikely to a motion to compel asking the judge to order
work, and most of the time, in our experience, you her to answer the question properly.
would be right. Nevertheless, the federal rules (and The rule governing motions to compel is FRCP, Rule
those of many state courts) require us to try to re- 37(a). Much of this workshop is devoted to learning
solve discovery disputes on our own before asking how to construct a motion to compel.
the judge to intervene, so we must at least go Filing a motion for sanctions: A motion for sanc-
through the motions. For a federal judge’s perspec- tions asks the judge to impose a sanction—in effect,
tive on the need for voluntary cooperation, see the a punishment—on a party who is willfully disobey-
sidebar. ing the rules. A motion for sanctions represents a
How best to do this depends on the specific re- level of escalation that is a step above a motion to
quirements of the local rules, and on the expecta- compel. With a motion to compel, the worst that can
tions of the local judges. A phone call may suffice; a happen to the disobedient party is that the judge
demand letter followed by a phone call is another may order him to make a proper response, and pos-
option. We will have more to say about this subject sibly pay some attorney’s fees. With a motion for
later under Step 2. sanctions, the disobedient party could conceivably
Filing a motion to compel: The word compel lose the entire lawsuit, and then be thrown in jail for
means to force someone to do something. A motion contempt of court. (Judges rarely impose such se-
to compel asks the judge to order an opposing party vere sanctions; the threat is usually enough to in-
to respond to a discovery request. For example: duce obedience.)
■ If our opponent has failed to answer some of A motion for sanctions is allowed in two main
the interrogatories in a set, we can file a mo- situations:
tion to compel asking the judge to order her
1. We can ask for sanctions if an opposing party
to file answers by a certain date.
has completely failed to respond to a discov-
■ If our opponent has objected to one of our ery request. If, for example, we serve a set of
document requests, we can file a motion to interrogatories and our opponent simply ig-
compel asking the judge to overrule the ob- nores them, we can move for sanctions. If, on
jection and order our opponent to turn over the other hand, our opponent serves a set of
the requested documents. answers, but does not answer all the questions
■ If our opponent has answered one of our in- or answers some of them evasively, then we
terrogatories in an evasive manner, we can file can move to compel but we cannot ask for
sanctions. The underlying idea is that sanc- What are the judge’s punishment options? Here are
tions are possible only if the responding party some of the things that the judge could do in this
has made no response. If there has been some situation, singly or in combination [see FRCP, Rule
response, even if it is incomplete or inade- 37(b) for the complete list]:
quate, a motion for sanctions is not the rem- ■ Assess attorney’s fees. Park Hotels’ attor-
edy. neys spent time and money filing a motion
2. We can ask for sanctions if we have already to compel, filing a motion for sanctions,
moved to compel, gotten an order compelling and conducting the discovery and investi-
our opponent to provide the discovery that we gation by which they discovered the iden-
asked for, and our opponent has not obeyed tity of the original psychiatrist. Naturally,
the order. This is the usual situation in which a they billed Park Hotels for the time and ex-
motion for sanctions is called for. For example, penses. The judge can make Shannon pay
suppose we serve interrogatories; our oppo- for these fees and costs [and, indeed, is
nent serves an incomplete set of answers; we probably required to do so under these hy-
move to compel and the judge orders our op- pothetical facts—see FRCP, Rule 37(b)(2),
ponent to serve complete answers by a certain last paragraph].
date; and our opponent does nothing or again ■ Make factual rulings. Here, for example, the
serves incomplete answers. Now, we can move judge could enter an order finding as a fact
for sanctions. that Shannon did not suffer any psychologi-
FRCP, Rule 37(b), gives the judge a variety of cal trauma; see FRCP, Rule 37(b)(2)(A). The
punishment options, ranging in severity from a mild idea here is to deter parties from hiding ad-
“slap on the wrist” to the litigation equivalent of nu- verse facts via the threat that, if the decep-
clear annihilation. These will be easier to under- tion is caught, the facts will be made even
stand in the context of an example; consider the fol- more adverse.
lowing scenario: ■ Disallowing designated evidence. The judge
could, for example, enter an order prohibit-
In our hypo, recall that Shannon is claiming
damages not only for the injury to her finger but ing Shannon’s attorney from calling any psy-
also for psychological trauma. She must, of chiatric witness other than the one whose
course, present evidence showing the nature identity he attempted to conceal; see FRCP,
and extent of that psychological trauma. Rule 37(b)(2)(B).
Suppose Park Hotels serves interrogatories ■ Prohibiting any evidence on particular claims
asking for the name and address of all or defenses. The judge could enter an order
psychiatrists who treated Shannon after her prohibiting Shannon from introducing any ev-
injury, and Shannon’s attorney leaves that idence to support her claim of psychological
interrogatory unanswered. (Why might he do
trauma; see FRCP, Rule 37(b)(2)(B).
that? Perhaps because he does not like the
testimony that the treating psychiatrist might ■ Striking claims or defenses. The judge could
offer, and prefers to hire some other enter an order completely striking Shannon’s
psychiatrist to testify.) Park Hotels then moves claim for damages for psychological trauma
to compel and obtains an order requiring from the complaint.
Shannon to answer.
■ Rendering judgment. The judge could dismiss
Shannon’s attorney now answers the
interrogatory, and discloses the name of the the lawsuit and render judgment for Park Ho-
new psychiatrist he has hired to testify, but tels. (This is a relatively severe punishment,
leaves out any mention of the psychiatrist who typically imposed only in unusually com-
treated Shannon after the injury. (Of course, a pelling situations.)
response of this kind is unethical and the ■ Holding the offending party or attorney in con-
deception is almost guaranteed to be tempt of court. The judge could hold Shan-
discovered, so obviously a fine attorney of Allen non’s attorney (and Shannon too, if the judge
Porter’s caliber would never do such a thing—
found that she deliberately participated in
but for the sake of our hypothetical we will
assume that he suffered an attack of temporary the decision to disobey the court’s order) in
insanity.) contempt of court. Although it rarely hap-
Park Hotels eventually finds out about the pens in civil lawsuits, the judge can also, in
original psychiatrist, and files a motion for theory, impose jail time as part of the pun-
sanctions. ishment for contempt.
Motions to Compel: Step-by- ries of items, and the response has either provided
them, or not. We want to know which of our ques-
Step Instructions tions, document requests, or requests for admis-
sions have not been fully and completely re-
As our project for this workshop, we have chosen to sponded to. There are many ways in which we
concentrate on a single task: dealing with an in- could approach the task; in this workshop, we ex-
complete response to a set of interrogatories or plain our own preferred method, which involves
other written discovery. We begin by analyzing the preparing a detailed list of the inadequate
response to determine exactly in what respects it responses, in a specified format that we will de-
falls short; then we take the necessary steps to prescribe. Our method may seem rather obsessive-
pare and file a motion to compel. compulsive—and certainly, it is possible to put to-
gether the necessary backup for a motion to
PREPARATORY STEPS compel without being so finicky. Our goal is to use
a routine that is easy to follow and that avoids hav-
The answers to the interrogatories that we sent out
ing to do the same things twice. We also want to pro-
6 weeks ago just arrived in the mail. Quickly skim-
duce an unambiguous paper trail from which the
ming through the pages, we can already see that we
judge can clearly see that it is our opponent, not us,
did not get all of the information we were expecting.
who is being unreasonable.
A few of the answer spaces have been left entirely
blank; other interrogatories have been answered in Making the List—Before we can say what is
a sentence or two where we were expecting at least wrong with a discovery response, we must analyze
a few paragraphs. Several of the answers merely say the entire response item by item. Is this really nec-
“investigation continuing, will supplement.” Where essary? What if we receive set of answers to inter-
do we go from here? rogatories and, skimming through them, we can see
We need to complete several preparatory tasks that some questions are left unanswered, others are
before we will be ready to prepare and file a motion answered in a few words with little or no real infor-
to compel. First, we must analyze the offending re- mation provided. Must we really waste our time la-
sponse carefully and identify each instance where it boriously analyzing each answer?
fails to provide all of the information requested. Sec- Sorry, but yes. By the time our motion to com-
ond, if we are going to move to compel, FRCP, Rule pel is placed before the judge for decision, our op-
37(a), requires us to certify that we made a good ponent will have done everything possible to cre-
faith effort to work out the problem with our oppo- ate an impression of cooperation and compliance.
nent. Finally, when we tell the judge in our motion Quite likely, after we contact our opponent to try
that a given answer is inadequate, we must be able to resolve the dispute, as required by FRCP, Rule
to explain why it is inadequate, and to cite some case 37, our opponent will serve an “improved” re-
law or other authority to back up our assertion. sponse, so as to be able to tell the judge that she
has bent over backward to comply with our re-
Analyze the Response and Make quest. It is therefore useful to create, from the out-
Step 1 a List of Items Not Fully set, a detailed paper trail reflecting every single
Responded To problem with the response. That way, we are in a
position to show the judge that we told our oppo-
In a motion to compel, we must tell the judge ex- nent exactly what needed to be done, and we can
actly what is wrong with the response that we are point to the things that remain undone from our
complaining about. We do not want the judge to en- original list.
ter an order merely telling our opponent to file a Our suggested formula for conducting this
better response. It would be too easy for our oppo- item-by-item analysis involves making a detailed
nent to send us another response, still incomplete list of all of the ways in which the response fails to
but worded differently, and tell the judge that every- comply with the rules. We do this in such a way
thing is now fixed. We want an order that tells our that we will be able to incorporate our list, whole-
opponent exactly what must be disclosed, in detail. sale, in the eventual motion to compel. We go
The judge will not analyze the facts for us; it is up to through the discovery response that we are ana-
us to say exactly what we want the opposing party lyzing, one item at a time, and determine whether
to do. each answer fully and properly responds to the re-
In principle, there is nothing complicated about quest. Each defect that we find in the response be-
analyzing a discovery response. We asked for a se- comes a separate item in our list. Each item in the
list will have four subparts, with uniform headings, [answer left blank]
along the following lines: Analysis: We add this interrogatory to our
list of deficiencies:
[Type of request] No. _____ Interrogatory No. 2
Calls for: [Here we briefly quote or Calls for: Identity of each employee of
paraphrase enough of our request to make clear Banbury Park Hotel who was present or on
what we asked for. Note that the local rules in duty on the night of plaintiff’s injury.
some districts require that a motion to compel Response: Left blank
quote the pertinent request item and the Insufficient because: No response
response to it verbatim.] Action required: Serve a complete
Response: [Here we quote the response answer to Interrogatory No. 2.
that we are complaining about.]
Insufficient because: [Here we describe 3. The item is objected to. We must then analyze
what is wrong with the response. If it is easy to the objection to determine whether it has any
find a case or two to cite (from our discovery validity. If we conclude that it does not, we in-
citations notebook, for example; see sidebar) clude the item in our list. If we can do so with-
we do so. We do not necessarily spend time out an inordinate amount of research, we may
doing extensive legal research at this stage—we also want to cite some legal authority support-
save that for Step 3.] ing our contention that the objection is im-
Action required: [Here we say exactly what proper. (In the sidebar, we suggest keeping a
we want the judge to order the opposing party
notebook of discovery case citations; if you do
to do. We will block-copy this subpart when we
prepare the part of our motion that sets forth this, you will eventually have at hand the cita-
the ruling that we are requesting.] tions that you will need in most of the common
situations.)
As we check each item in the response, what
can we expect to find? Here are the main possibili- Example:
ties, illustrated by examples: Interrogatory No. 3
1. The response to the item appears to provide number of each person who was a registered
what we asked for. If so, we move on to the next guest on the fourth floor of Banbury Park
one. Hotel on the night of February 5, 1996.
Objection. Not calculated to lead to
Example: admissible evidence. Disclosure of identities
Interrogatory No. 1 of other hotel guests violates their right to
State the make and model number of the privacy.
lock(s) installed on the door of Room 407 of Analysis: After doing some legal research,
the Banbury Park Hotel on the night of we conclude that the right of privacy
February 5, 1996. objection is not valid. Notice that we copy the
Analysis: Nothing to do here. The language of the request verbatim in the
response appears complete. “Action required” subpart of our list entry. We
2. The response is left blank. Although contrary to could have said, simply, “comply with Request
For Production No. 5.” But we will be block-
the rules, it is not unusual to see a few unan-
copying from our list to create the order that
swered items in a discovery response. Some- we will ask the judge to enter. We would prefer
times this is done as a stalling tactic. Our op- to have the order specify exactly what our
ponent knows that it will take us at least opponent must produce, so that if compliance
several weeks to send out a demand letter, wait is still not forthcoming, the record will be very
for a response, and prepare a motion to com- clear and there can be no debate about what
pel. If the missing answers are supplied within our opponent was ordered to do.
that time, there is little that we can do as a prac- Interrogatory No. 3:
tical matter—we are not going to file a motion Calls for: Name, address, and telephone
to compel over a few late answers that we have number of hotel guests on the same floor on
now received. the night of the events at issue.
Response: Objected to as not calculated
Example: to lead to admissible evidence and violating
Interrogatory No. 2 guests’ right to privacy.
State the name, address, and telephone Insufficient because: Persons in the
number of each employee of Banbury Park immediate vicinity of a disputed event are
Hotel who was present at the hotel or on duty potential witnesses, and their identities are
at any time between 6:00 p.m. on February 5, discoverable. Right of hotel guests to privacy is
1996, and 6:00 a.m. on February 6, 1996. not a recognized privilege preventing discovery
of their identities. See Davis v. Leal,— Example:

F.Supp.2d—, 1999 WL 183643 (E.D.Cal. 1999) [an Interrogatory No. 4
objection based on privacy is inappropriate]; State the name, address, and telephone
Pagano v. Oroville Hosp., 145 F.R.D. 683 (E.D.Cal number of each individual who at any time
1993) [privacy objection inappropriate where from January 1, 1995, to the present
none of the recognized privileges applies]. performed any repair or maintenance on the
Action required: Produce all documents, door lock or door hardware of Room 407 at
including without limitation registration the Banbury Park Hotel.
cards, reflecting the identities of all hotel Marcos Davila, head of maintenance
guests occupying or registered in Rooms 400 department, Banbury Park Hotel, 1594 E Viking
through 447 of the Banbury Park Hotel on the Rd., Las Vegas, NV 89119 Phone: 702-555-5254.
night of February 5, 1996. Analysis: This is the same interrogatory as
in the preceding example, but now the answer
4. The item is answered without objection, but the leaves out the disclosure that there were others
answer is evasive or incomplete. beside Marcos Davila who performed repairs or
maintenance on Shannon’s door lock. It seems
Example:
intuitively unlikely that the head of the
Interrogatory No. 4
maintenance department would be the only one
to work on the door locks, so we suspect that
number of each individual who at any time
the answer is incomplete. We have two options:
from January 1, 1995, to the present
(1) We can wait until we have a chance to follow
performed any repair or maintenance on the
up in a deposition and find out whether there
door lock or door hardware of Room 407 at
were others who worked on the locks (see
the Banbury Park Hotel.
Marcos Davila, head of maintenance sidebar on follow-up depositions); or (2) we can
state in our demand letter that we surmise that
department, Banbury Park Hotel, 1594 E.
there were others and ask our opponent to
Viking Rd., Las Vegas, NV 89119 Phone: 702-
supplement the answer. Since we may want to
555-5254. Maintenance was performed by
depose anyone who worked on the door, and we
various employees of the hotel’s maintenance
want to know whom to depose, we will choose
department; defendant’s investigation is
continuing. the latter alternative. (Of course, if our opponent
continues to insist that the answer is complete
Analysis: It is clear from the response
as written, we will not be able to include this
itself that the information provided is
item in our motion to compel until we come up
incomplete. “Various employees” is not
with some proof that some names were left out.)
adequate; we asked for names and addresses,
Interrogatory No. 4
and we are entitled to get them.
Calls for: Identities of all persons who
Interrogatory No. 4
performed maintenance on Room 407 door
Calls for: Identities of all persons who
lock or door hardware.
performed maintenance on Room 407 door
Response: Discloses identity only of hotel
lock or door hardware.
Response: Discloses identity of hotel maintenance supervisor.
Insufficient because: Defendant is
maintenance supervisor, then states:
required to disclose all information in its
“Maintenance was performed by various
possession or control. Plaintiff believes there
employees of the hotel’s maintenance
were others in addition to maintenance
department; defendant’s investigation is
supervisor who performed maintenance or
continuing.”
repairs on Room 407 door lock or door
Insufficient because: Defendant is required
hardware.
to disclose all information in its possession or
Action required: Disclose the name,
control. “Investigation continuing” is not an
address, and telephone number of each
excuse for failing to answer an interrogatory.
person who performed maintenance on Room
Williams v. Chicago Bd. of Educ., 155 F.3d 853,
407 door lock or door hardware during the
41 Fed.R.Serv.3d 433 (7th Cir.1998)
period specified in Interrogatory No. 4.
Action required: Disclose the name,
address, and telephone number of each
person who performed maintenance on Room Make a Record of Seeking
407 door lock or door hardware during the
Step 2 Voluntary Compliance
period specified in Interrogatory No. 4.
FRCP, Rule 37(a)(2)(B), provides that when a liti-
5. The item is answered without objection and is
gant moves to compel,
not obviously evasive or incomplete, but you
suspect that not all of the information called [t]he motion must include a certification that
for has been provided. the movant has in good faith conferred or
SIDEBAR
Follow-Up Depositions
For our overall discovery plan to succeed, it is im- If the opposing party is a corporation or other entity,
portant to get the right information early. To be able then, using FRCP, Rule 30(b)(6), we require our oppo-
to plan our depositions, we need complete and accu- nent to designate someone to testify about the subject
rate information from our opponent’s disclosure state- we specify, which would be the discovery responses
ment and responses to our initial interrogatories and whose completeness is in question.
request for production of documents. It is from these In the deposition, we can ask questions to probe
sources that we will obtain the identities of witnesses each of the suspect items. Take, for example our inter-
and leads to other information. rogatory asking for the identities of everyone who
Of course, our opponent would be happy if our worked on Shannon’s door lock; assume that the re-
discovery did not succeed very well, so we should ex- sponse discloses only the name of the maintenance
pect that our opponent’s initial disclosure and discov- chief. We can ask questions such as these: “How did
ery responses may be somewhat incomplete. How in- you determine that no one but the maintenance chief
complete depends on such things as the opposing worked on the door lock?” “Does the hotel keep records
attorney’s sense of ethics; the judge’s reputation for of door lock maintenance?” “Did you ask the mainte-
enforcing or not enforcing the rules; our own vigor in nance chief if anyone else worked on the door lock?”
verifying compliance; and our opponent’s perception The technique works equally well for incomplete
of what can be gotten away with. responses to document requests. Suppose our oppo-
Occasionally we will receive early-stage discovery nent responds to our initial document request with a
responses that seem very incomplete. There may not suspiciously small stack of documents. As usual, we
be anything that we can prove is missing, but common number stamp each page when we log them in. When
sense tells us that there must be some additional wit- we take our deposition, we can mark the entire stack
nesses here, some other documents there. We cannot as an exhibit, then ask questions such as these: “Re-
base a motion to compel on mere suspicions; yet, if we quest No. 1 calls for ‘all documents reflecting or per-
wait, we place ourselves at a serious disadvantage. taining to any maintenance performed on any guest
In such situations it is often useful to take a depo- room doors or locks at Banbury Park Hotel after Janu-
sition for the purpose of verifying the discovery re- ary 1, 1995.’ Show me which pages of Exhibit 1 com-
sponses. Deposition of whom? If the opposing party is prise the response to that request.” “How many guest
an individual, then that is whom we need to depose. room doors are there at Banbury Park Hotel?” “How
(We would probably want to depose the opposing often does a door lock typically require maintenance?”
party as early as possible anyway, so we can just plan “When you perform maintenance on a door lock,
to verify the discovery responses while we are doing it.) what paperwork is involved?” “Is there a work order?”
attempted to confer with the person or party counsel for the moving party files a separate
failing to make the discovery in an effort to secure affidavit stating that counsel has conferred
the information or material without court action. personally with counsel for the opposing party
in good faith to resolve or narrow by agreement
When we have finished analyzing the response the issues raised by the motion without the
and making a list of all the deficiencies we find, we intervention of the court, has been unable to
are ready to contact opposing counsel, and make reach such agreement and that the resulting
the required “good faith effort” to resolve our dif- motion is therefore contested. In the alternative,
ferences and avoid a motion to compel. The exact counsel must certify such a conference was
requirements for doing this vary from one jurisdic- impossible and the efforts made.
tion to another; we consult the applicable local rule.
Local Rule 37.1 of the U.S. District Court for the Notice that the rule—as is typical of federal district
Northern District of Iowa will serve as an example: court rules on this subject—does not ask us to send
a demand letter, but it does ask us to “confer per-
[N]o motion relating to depositions or other sonally” with opposing counsel. Several practical
discovery shall be filed by the Clerk unless problems arise:
SIDEBAR
A Notebook of Discovery Citations
Discovery disputes are inherently factual in na- subtopic seem to say the same thing. That means two
ture, and the judge’s decision on a motion to compel things: the cases involve an issue that comes up often,
is usually driven mainly by the judge’s commonsense and the courts have evolved a case law principle to
analysis of what facts are relevant to the circum- deal with it.
stances of the lawsuit. Deep legal analysis is typically In a relatively short time you can peruse all of the
not required. subtopics annotated under the discovery rules. Keep a
Nevertheless, as you gain experience analyzing notebook. Whenever you find a large number of cases
discovery responses, you will find that the same issues saying the same thing, take a fresh page of your note-
and objections come up over and over. Courts have book and write down the discovery issue that they are
ruled over and over on many of these common issues addressing, the rule or principle that they are apply-
and distilled many general principles, which are ex- ing, and the citations of two or three of the cases.
pressed in reported cases. Choose at least one case from your local U.S. district
In a motion to compel, we are expected to cite au- court or from the court of appeals for your circuit; also
thority to support the legal principles that we argue choose one of the most recent cases. With a small in-
for. It is, of course, possible to obtain the necessary ci- vestment of time (a few days, tops—trust us), you will
tations by researching each issue each time we write a enormously broaden your grasp of what is and is not
discovery motion. There is, however, a more efficient allowed in discovery. As an added bonus, you will have
way. created a tool that will allow you, on an instant’s no-
tice and without having to spend hours doing re-
Go to annotations following Rules 26 through 37
search, to produce citations of cases covering many
in U.S. Code Annotated, U.S. Code Service, or any
common discovery situations. A tool that can grow—
other source containing annotations for the Federal
when you do have to research a discovery issue, you
Rules of Civil Procedure. Following each rule, you will
can add another page summarizing your findings.
find annotations, one-paragraph summaries of the
With time, you will be able to write most discovery mo-
holdings of reported decisions that interpret the rule.
tions without needing to do legal research.
The annotations are organized into a large number of
subtopics, in an outline form by subject. A great way to spend a long weekend!
Highly recommended! Give it a try—you’ll be
Skimming through the annotations, you will often
glad you did!
find that a large number of the cases under one
■ We have no control over the opposing attorney; some idea, in advance, of what the issues are
we cannot force him to confer with us. The rule so that they can prepare properly. Otherwise,
quoted above—again, as is typical—anticipates when we do confer, the opposing attorney
the problem of the uncooperative opponent by will have a legitimate reason to ask for time to
allowing us, in lieu of certifying that we con- look into the issues that we raise.
ferred, to certify that we tried to and a “confer- ■ When we confer, our opponent may promise
ence was impossible.” Problem solved? Not to send us more information—information
quite. Our opponent is not so inept as to refuse that, if it really lives up to our opponent’s rep-
to confer because that might annoy the judge. resentations, would resolve all or part of the
What he may do, however, is cite a busy trial cal- dispute. Naturally, the opposing attorney will
endar, agree to confer with us a week from next need some time to check with his client, as-
Friday, and then have a last minute emergency semble the information, prepare the amended
and ask us to reschedule the appointment. response, review it for accuracy—and before
■ To confer in any meaningful way, there has to we know it, another month will have gone by
be an agenda. Both attorneys need to have and we will still not have our information.
Keep in mind that the reason there is a discov- Since we have enclosed our list, the opposing
ery dispute is because we are insisting on getting in- attorney cannot claim to be unprepared; we have
formation that our opponent does not want to give informed him or her in advance, in writing, of what
us—otherwise, the information would have been in we want to talk about. If the opposing attorney does
the response. It is only to be expected that our op- not call within the prescribed time, we can credibly
ponent will stall, offer arguments and excuses, and certify to the court that we tried to confer. If the op-
try to make the situation confusing so that the posing attorney does call, and promises us more in-
judge will find it hard to rule. formation, we immediately send a confirming letter
Our best defense against such tactics is a clear reciting exactly what was promised and which of
record. Therefore, even though most district court our list of items the promised information relates
local rules do not require it, our first move would to. That way, we maintain a clear paper trail show-
usually be to send the opposing attorney a letter. ing what we asked for and what we have been given.
The letter will be easy to write because we have al-
ready done the hard part, which is going through Do Legal Research and
Step 3 Assemble Authorities
the response and listing all of the problems. We sim-
ply enclose a copy of our list with the letter, and ask
for a telephone call within some reasonably short The final task that we need to accomplish before we
period of time for the purpose of conferring as re- can write a motion to compel is to obtain the case
quired by the rule. (Most local rules require “coun- citations and other legal authorities to support the
sel” to confer, so the letter should be prepared for arguments that we will be making. There are basi-
our supervising attorney’s signature, and an attor- cally two kinds of cases that we will need.
ney would need to handle the phone call when it First, there will be places in our argument where
comes. See Figure W15–1 in the Learning by Exam- we will want to recite some well-established general
ple section for a sample letter.) principle, such as “the identities of eyewitnesses to a
SIDEBAR
Other Ways of Dealing with Discovery Disputes
In recent years, judges and legal scholars to devote more time to a given matter than
have devoted considerable energy to the question a judge could.
of how to reduce the costs, delays, and consump-
■ The U.S. District Court for the Eastern Dis-
tion of court time occasioned by discovery dis-
trict of Texas has instituted a “discovery hot-
putes. We have already seen one of the resulting
line.” Local Rule 26 provides:
reforms: mandatory disclosure rules. Discovery
disputes still occur, however, and the courts con- The court shall provide a judicial officer on
tinue to look for innovative ways to resolve them. call during business hours to rule on discov-
One of the perceived drawbacks of the pre- ery disputes and to enforce provisions of
sent, motion-based system is that there is no mech- these rules. Counsel may contact the judicial
anism for resolving small problems quickly, before officer by dialing the hotline number listed
they escalate into a full-blown motion battle. In above for any case in the district and get an
this context, even the requirement for counsel to immediate hearing on the record and ruling
confer before filing a motion, well intentioned on the discovery dispute or request to en-
though it may be, merely serves to interpose still force or modify provisions of the rules as
another hoop to be jumped through on the way to they relate to a particular case.
a decision by the judge. What is needed is a more ■ Local Rule 37.2 of the U.S. District Court for
streamlined procedure, but one that still results in the Southern District of New York does not
a binding ruling. Here are a few of the ideas that allow a discovery motion to be heard unless
some districts are experimenting with: “counsel for the moving party has first re-
■ A number of districts delegate the adjudica- quested an informal conference with the
tion of discovery motions to magistrates, court and such has either been denied or the
special masters, or other officers who are discovery dispute has not been resolved as a
not judges. These officials are generally able consequence of such a conference.”
disputed event are generally discoverable.” Any such courts have adopted special rules for discovery
statements need to be supported by citation of au- motions. Here is a sampling:
thorities, such as citations to reported appellate ■ Some courts require the moving party to re-
cases, statutes, or rules. The easiest way to find cases produce each disputed request item and the
that can be cited for general principles is to consult a response to it, verbatim. Some require this to
digest under the civil procedure/discovery headings, be in the body of the memorandum support-
or check the annotations under Rules 26–37 in a set of ing the motion (see, e.g., Local Rule 37.2,
annotated federal statutes. This kind of research is Northern District of Ohio), others in an at-
most easily done in the library, with books—comput- tachment [see, e.g., Local Rule CV-7(b)(1),
erized research aids do not lend themselves very well Eastern District of Texas]. Don’t forget to
to skimming and browsing. Of course, if you follow check www.uscourts.gov/links for most of
our suggestion about a notebook of discovery case ci- the district court local rules.
tations (see sidebar), you may be able to find much of
what you need in your own notebook. ■ Some courts require the title of the motion to
Second, we would like to be able to cite cases reflect the identities of the parties involved. In
that apply the general principles to fact situations other words, not “Motion to Compel” but
similar to our own, and reach conclusions similar to “Plaintiff John Doe’s Motion to Compel Answers
the ones that we are arguing for. If we want to argue, to Interrogatories by Defendant ABC Corp.”
for example, that we are entitled to see the mainte- (see, e.g., District of Oregon Local Rule 7.3).
nance records on the door locks for all the rooms in ■ Some courts require the motion itself to re-
the hotel, we had better be prepared to tell the cite that counsel have conferred in an effort
judge why those records are “reasonably calculated to resolve the dispute (see Local Rule 37, Mid-
to lead to admissible evidence”; see FRCP, Rule dle District of Georgia). Others require a sep-
26(b)(1). If possible, we would like to be able to cite arate affidavit or certificate containing the
a case or two in which similar records were held dis- recital attachment [see, e.g., Local Rule CV-
coverable under similar circumstances. For finding 7(h), Eastern District of Texas]. Some require
cases with similar facts, computerized research the recital to include details, such as the date
aids such as Westlaw and Lexis are ideal. and time when counsel conferred, the names
A motion to compel lends itself easily to re- of the attorneys who conferred, and the man-
searching the legal issues in advance. For each item ner in which they conferred (i.e., in person or
on our list there is really only one issue: Are we enti- by telephone) (see Local Rule 37–3.04(B),
tled to the discovery that we requested; that is, is the Eastern District of Missouri).
requested information discoverable? We already have
a list of all of the things that we think are wrong with Step 4 Draft the Memorandum
our opponent’s response; now all we need to do is go
through the list, item by item, and try to find cases or
other authorities to support our contentions. Before we start writing, some planning is in order.
We need to decide exactly which issues to present
in our motion to compel and how best to organize
DRAFTING STEPS the presentation.
If we have done the preparatory work well, writing The motion to compel does not necessarily have
the motion will be easy. We already have the neces- to include every item in our list of deficiencies. Based
sary ingredients—all we need to do is pull them to- on our research and review of legal authorities, we
gether into a written filing. evaluate the strength of our position on each dis-
A motion to compel follows the same basic lay- puted item. We also consider the importance of each
out and format as any other motion (see Workshop item on our list in the context of the overall lawsuit.
14). We will need the motion itself, the supporting The judge’s attention is a limited resource, and we
memorandum, and, depending on the content of will get only so much of it so it is better to concen-
the motion and the requirements of the local rules, trate on the items that really matter. In short, we save
attachments. In this workshop, we will rearrange our ammunition for battles that we can win, over is-
the steps a bit and write the memorandum first; we sues that will make a difference to the outcome of the
do this because our decisions about which issues lawsuit. We prune our list accordingly.
to include in the memorandum will determine what After deciding which issues to include, we must
specific orders we ask for in the motion. decide how best to present them. There are several
It goes without saying that we must check the possible ways to organize the memorandum sup-
local rules carefully before we start writing. Many porting a motion to compel:
1. We can simply take the issues in the order in Example of a better preamble:
which they appear in our list of deficiencies Plaintiff respectfully moves pursuant to
(which is presumably in the numerical se- FRCP, Rule 37(a), for an order of the court
quence of the original request). This makes the compelling defendant Park Hotels Group, Inc.,
writing task easy—begin with the list as it is, to serve, on or before August 7, 2000, answers
to plaintiff’s interrogatories to said defendant
add headings, argument, and a conclusion, and
dated April 24, 2000, in accordance with the
we have a memorandum. following:
2. Sometimes, the problem areas in a discovery re- 1. Disclose the name, address, and
sponse reduce to one or two important items telephone number of each person who
that we badly need (and perhaps a larger num- performed maintenance on Room 407 door lock
ber of minor omissions which, though aggra- or door hardware during the period specified in
Interrogatory No. 4.
vating, involve facts that we can establish in
....
other ways if necessary). In such situations, we Etc.
may decide to address our motion to the few im-
portant issues and abandon the others entirely The preamble in the first example is too general. If
because, as mentioned, it is better to keep the the court grants our motion and takes the trouble to
judge’s focus on the things that we most want. dictate an order specifying what the opposing party
We prune the less important items from our list, is to do, well and good. But if, as sometimes hap-
and create our memorandum from the remain- pens, the court simply issues a minute entry saying
ing ones, adding argument as necessary. “motion granted,” all we will have is an order telling
the opposing party, in effect, to do a better job.
3. It may also happen that the overall depth and
When the opposing party serves another response
quality of the disclosure is poor. Many items
that still does not measure up, there will be plenty
are answered incompletely or evasively. There
of room for her to argue about whether the new re-
is no single item that stands out—the problems
sponse now complies with the discovery rules.
affect the entire response. Then we may need
In the second example, we specify exactly what
to organize our motion differently. Instead of
we want the court to order our opponent to do.
addressing each item individually, we may de-
Now, if the minute entry merely says “motion
cide to group related items. We might, for ex-
granted,” what the court has granted is a motion
ample, have one section in our motion in which
asking for an order whose terms we have already
we present legal argument that a particular
specified in the motion. In effect, the language of the
type of objection is invalid, then list all of the
motion becomes the order. If our opponent serves
items involving that objection.
another response that fails to disclose everything
In the Summary of Argument section of the that we specified in the motion, we should have no
memorandum, we try to convey an accurate gen- trouble moving for sanctions, because we can point
eral impression of the kinds of information we are to the specific terms that were not complied with.
trying to obtain, and briefly summarize the princi- If we were careful in writing the Action Required
pal arguments supporting their discoverability. The paragraphs of our list of deficiencies, we can block-
main body of the memorandum is derived from the copy them for the numbered subparts of the re-
list that we prepared in Step 2. quested order. Of course, the requested order
should match the argument in the memorandum—
if we have decided to leave out any items, or if we
Step 5 Draft the Motion have grouped the items in some particular way, we
do the same in the requested order.
The motion ends with the usual reference to the
We block-copy the caption from our form (see Work- memorandum and other supporting attachments, if
shop 4) and enter an appropriate title. The preamble any (see Workshop 14, Step 1), and appropriate
begins in the usual way, but rather than a generic date and signature lines.
statement that the moving party “moves to compel
discovery,” we recommend a very specific enumera-
tion of exactly what the moving party is asking the
court to order the responding party to do. Step 6 Attachments
Example of how not to do it:

Plaintiff respectfully moves to compel Attachments commonly submitted with motions to
discovery pursuant to FRCP, Rule 37(a). compel include the following:
■ The required certificate stating that the at- Banbury Park Hotel on the night of February 5,
torneys have conferred in an effort to resolve 1996.
the dispute. Whether this should be submit- Schlage AL85PD F93
ted as an attachment or included as a part of
Interrogatory No. 2
the motion itself depends on the local rules
and customs of each district. number of each employee of Banbury Park
■ Copies of the pertinent discovery papers. In Hotel who was present at the hotel or on duty
some jurisdictions, the local rules require at- at any time between 6:00 p.m. on February 5,
tachment of copies of the discovery request 1996, and 6:00 a.m. on February 6, 1996.
and response to which the motion pertains. [answer left blank]
(Typically, these would be included only with
the copy intended for the judge.) Interrogatory No. 3
■ Copies of important legal authorities cited in number of each person who was a registered
the memorandum. As discussed more fully in guest on the fourth floor of Banbury Park Hotel
Workshop 14, Step 3, it may be appropriate to on the night of February 5, 1996.
attach a copy of a case or statute to the Objection. Not calculated to lead to
judge’s copy of a motion if the case or statute admissible evidence. Disclosure of identities of
is important to our argument and not likely to other hotel guests violates their right to privacy.
be readily accessible by the judge.
Interrogatory No. 4
number of each individual who at any time from
CONCLUDING STEPS January 1, 1995, to the present performed any
Most U.S. district courts handle discovery motions repair or maintenance on the door lock or door
in the same way that they do any other motion. hardware of Room 407 at the Banbury Park
Therefore, the follow-up steps—filing, serving, Hotel.
Marcos Davila, head of maintenance
docketing, getting the motion placed before the
department, Banbury Park Hotel, 1594 E Viking
judge for decision—are generally as described in Rd., Las Vegas, NV 89119 Phone: 702-555-5254.
Workshop 14, Steps 4 through 6. Be sure to consult Maintenance was performed by various
your local rules for any specific provisions affecting employees of the hotel’s maintenance
discovery motions. department; defendant’s investigation is
continuing.
Motions to Compel: Learning Interrogatory No. 5

With respect to each civil lawsuit brought
by Example against any person arising from any injury or
claimed injury occurring on the premises of
We will now apply our skills to the task of analyzing Banbury Park Hotel at any time from January 1,
a hypothetical response and taking the steps to pre- 1994, to the present, state the names and
pare and file a motion to compel. As in Workshop addresses of all parties to each such lawsuit,
14, we will demonstrate the basic principles and state in what court each such lawsuit was
present a partially completed motion to compel; brought, and state the cause number of each
you will complete the motion and modify it as nec- such lawsuit.
Objected to as irrelevant and not calculated
essary to conform to customary practice in your
to lead to admissible evidence.
district.
We will assume that Shannon’s attorney has Interrogatory No. 6
served on Park Hotels Group a set of interrogatories Is it your contention that the key furnished
consisting of the first four that we used as examples to defendant Collins by your employee was
in Step 1 earlier, plus two more that we will leave for incapable of opening the door lock of Room
you to practice on in the Learning by Doing section. 407? _____ If yes, state in detail each and
(Real-world sets of interrogatories are often larger, every fact upon which you base such
but we are limited by space considerations.) Here contention.
are the interrogatories and answers: Objected to on the grounds that
“contention” interrogatories are improper in the
Interrogatory No. 1 early stages of discovery. See, e.g., In re
State the make and model number of the Convergent Technologies Securities Litigation,
lock(s) installed on the door of Room 407 of the 108 F.R.D. 328 (N.D.Cal. 1985).
SIDEBAR
Responding to Motions to Compel
So far, we have been viewing discovery motion pro- to one or more of our opponent’s questions or re-
cedure from the standpoint of the moving party—the quests. Our goal here should be to avoid disclosing
party who served a discovery request and is dissatisfied anything that will harm our case to the extent that we
with the response. Now let us shift our focus and consider have legitimate legal grounds to support our objec-
the responding party’s position. When we find ourselves tion. At the same time, we would like, if possible, to
on the receiving end of a threatened motion to compel, avoid the expense and distraction of having to re-
it is usually because of one or more of the following: spond to a motion to compel. Therefore, when the op-
posing attorney contacts us to confer about the dis-
Our Response Was Inadequate
pute, we will do our best to sell him on the validity of
We would not, of course, deliberately serve a re- our objection. Often, it may be helpful to try to reach
sponse that did not comply with the discovery rules. some compromise—perhaps by offering to disclose
Nevertheless, mistakes are sometimes made and, some- part of the requested information, if we can do so
times, we find it necessary to serve an incomplete re- without handing our opponent ammunition that will
sponse because of circumstances beyond our control. seriously jeopardize our case.
Perhaps our client was unable to assemble the infor-
Failing that, we will have no choice but to respond
mation that we needed in time, or perhaps we were de-
to the motion to compel. We will research and prepare
pending on someone else (say, an expert witness) who
a response memorandum that presents the reasons for
did not meet agreed deadlines. In theory, if it is obvious
our objection and cites appropriate cases, statutes, or
that we cannot serve a complete response on time, we
rules to support our position.
should contact the opposing attorney and try to agree
on an extension, or, failing that, file a motion and ask The Opposing Party Believes Our Response Is
the court for an extension. But opposing attorneys do Incomplete
not always cooperate in such matters, and there may If our response actually is incomplete, we should
not be time to have a motion for an extension decided. fix it. But our opponent may believe that we are hold-
Our best strategy in this situation is to try to get ing out when we are not, and threaten a motion to
our response into compliance with the rules as quickly compel. Unlike disputes over objections, where the
as possible. We will have at least a few days or weeks outcome depends on how the judge applies the ap-
before our opponent can comply with the requirement plicable legal rules, disputes over the completeness of
to confer and prepare and file a motion to compel, and answers are inherently factual. It is up to the moving
then we will have some period of time before our re- party to convince the judge that we have more infor-
sponse to the motion to compel is due. If we turn over mation than we disclosed. Here again, we will do our
whatever information is missing by the time we file our best to convince the opposing attorney that we have
response to the motion to compel, our opponent will disclosed everything, so as to avoid a distracting mo-
most likely withdraw the motion; if not, we will have tion battle if possible. If our opponent insists on filing
little to fear as long as our response makes it clear that a motion to compel, we will need to present a response
we are doing the best that we can to comply. memorandum showing what information exists and
what we disclosed.
There Is a Genuine Dispute over
Discoverability
Another reason why our opponent may be threat-
ening a motion to compel is because we have objected
PREPARATORY STEPS Action required: Disclose the name,

address, and telephone number of each person
who performed maintenance on Room 407 door
Analyze the Response and Make
Step 1 a List of Items Not Fully
lock or door hardware during the period
specified in Interrogatory No. 4.
Responded To
Make a Record of Seeking
Here is our list, based on the first four interrogato- Step 2 Voluntary Compliance
ries. The last two are left for you—see the Learning
by Doing section later in this workshop.
We check the local rules for the U.S. District Court
Interrogatory No. 2
for the District of Arizona, and find that Local Rule
Calls for: Identity of each employee of
Banbury Park Hotel who was present or on duty 1.10(j) provides:
on the night of plaintiff’s injury. No discovery motion filed in a civil case and
Response: Left blank no motion filed in a criminal case will be
Insufficient because: No response considered or decided unless a statement of
Action required: Serve a complete answer moving counsel is attached thereto certifying
to Interrogatory No. 2. that after personal consultation and sincere
efforts to do so, counsel have been unable to
Interrogatory No. 3 satisfactorily resolve the matter. Any civil
Calls for: Name, address, and telephone discovery or criminal motion brought before
number of hotel guests on the same floor on the the Court without prior personal consultation
night of the events at issue. with the other party and a sincere effort to
Response: Objected to as not calculated to resolve the matter, may result in sanctions.
lead to admissible evidence and violating
guests’ right to privacy. Although the local rule does not require a written
Insufficient because: Persons in the demand, we choose to initiate contact with oppos-
immediate vicinity of a disputed event are ing counsel by letter, so that when we do confer di-
potential witnesses, and their identities are rectly, our opponent cannot claim lack of opportu-
discoverable. Right of hotel guests to privacy
nity to prepare. The letter is shown in Figure W15–1.
is not a recognized privilege preventing
discovery of their identities. See Davis v. We hope Gail Stoddard will telephone Allen
Leal,—F.Supp.2d—, 1999 WL 183643 (E.D.Cal. Porter as requested. If not, Porter will attempt to
1999) [an objection based on privacy is telephone her. If he does so, and she does not re-
inappropriate]; Pagano v. Oroville Hosp., 145 turn the calls within a few days, he will be free to file
F.R.D. 683 (E.D.Cal 1993) [privacy objection the motion to compel because he can certify that he
inappropriate where none of the recognized made reasonable efforts to confer, and recite that
privileges applies]. he sent a letter and attempted telephone contact.
Action required: Produce all documents,
including without limitation registration cards,
reflecting the identities of all hotel guests Do Legal Research and
occupying or registered in Rooms 400 through
Step 3 Assemble Authorities
447 of the Banbury Park Hotel on the night of
February 5, 1996. Legal research entails two quite distinct skills:
Interrogatory No. 4 (1) knowing what kinds of cases or other authori-
Calls for: Identities of all persons who ties to look for and (2) knowing how to use the right
performed maintenance on Room 407 door lock legal research techniques to find them. Research
or door hardware. techniques are properly the subject of another
Response: Discloses identity of hotel course. Knowing what to look for is another mat-
maintenance supervisor, then states: ter—when we do legal research to support a mo-
“Maintenance was performed by various tion, we usually have at least a general idea of what
employees of the hotel’s maintenance department;
it is that we are trying to establish.
defendant’s investigation is continuing.”
Insufficient Because: Defendant is required What kinds of cases should we look for to sup-
to disclose all information in its possession or port plaintiff’s position on Interrogatories 2, 3, and
control. “Investigation continuing” is not an 4? Let us try to list the main points that we might
excuse for failing to answer an interrogatory. want to make in our motion. We would like to be
Williams v. Chicago Bd. of Educ., 155 F.3d 853, 41 able to cite case law or other authority supporting
Fed.R.Serv.3d 433 (7th Cir.1998) each one, if possible.
Figure W15–1 Letter Seeking Voluntary Compliance
SIMON & PORTER

Attorneys
(602) 555-4321
June 7, 2000
Gail Stoddard, Esq.
Crandall, Elkins & Major
Re: Martin v. Collins
Dear Ms. Stoddard:
This concerns the answers to interrogatories dated May 29, 2000, which you served on behalf of
defendant Park Hotels Group, Inc. in the above referenced action. Plaintiff’s position is that defendant’s
answers to Interrogatories Nos. 2, 3, and 4 are insufficient, for the reasons specified in the analysis
enclosed.
In keeping with the requirements of Local Rule 1.10(j), I would like to speak to you at your
convenience, but in any case no later than June 21, 2000, in an effort to arrive at a satisfactory
resolution.
Sincerely,
Allen Porter
1. An order compelling answers is appropriate Using the legal research techniques that we
where some answers have been left blank. have learned in our legal research course, we try
to find cases supporting each of these points. In-
2. Persons in the vicinity of a disputed event are
evitably, we will find that the cases do not say ex-
potential witnesses; information about their
actly what we anticipated, and we will have to
identities is “reasonably calculated to lead to
modify our arguments accordingly. After we have
admissible evidence.”
spent a few hours in the library or on the com-
3. When information meets the discoverability puter, we should be able to modify our list of main
test of Rule 26 (“reasonably calculated to lead points to argue, based on what we have read in the
to admissible evidence”), it must be provided cases. When we have a viable list of main points
unless an applicable privilege applies. and case, statute, or rule citations to support each
4. There is no privilege covering the identity of ho- one, we arrange them in logical order and outline
tel guests. our argument. Then we are ready to start writing
the motion papers.
5. “Right to privacy” is not a recognized basis for
withholding the identities of potential wit-
nesses in federal court.
DRAFTING STEPS
6. In factually similar cases, courts have granted dis-
covery of the identities of persons who were phys-
ically in the same vicinity as a disputed event. Step 4 Draft the Memorandum
7. The fact that a party has not completed her in-
vestigation is not an excuse for failing to an- As we did in Workshop 14, we sketch in the broad
swer an interrogatory. outlines of the memorandum, as shown in Figure
8. A party must disclose in answer to an inter- W15–2. In the Learning by Doing section later you
rogatory all information available to the party. will be assigned to fill in the gaps.
Figure W15–2 Sample Memorandum in Support of Plaintiff’s Motion to Compel
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO._____
Plaintiff, )
) MEMORANDUM IN SUPPORT OF
v. ) PLAINTIFF’S MOTION TO COMPEL
) ANSWERS TO INTERROGATORIES
ARTHUR COLLINS, et ux., et al., ) BY DEFENDANT PARK HOTELS
) GROUP, INC.
Defendants. )
___________________________________)
Summary of Argument
1. Defendant has made no answer to Interrogatory No. 2, and should be ordered to do so.
2. Other hotel guests may have witnessed the events from which this lawsuit arises; their identities are
not privileged and should be disclosed.
3. Plaintiff is entitled to discover the identities of persons who performed maintenance on the door lock
by which plaintiff’s assailant gained entrance. That defendant’s investigation is incomplete is not an
excuse for withholding whatever information is now in defendant’s possession or control.
Argument
I. Factual Background: The Manner of Defendant Collins’s Entry Into Plaintiff’s Room Is The Main Factual
Issue In This Lawsuit: Evidence Thereon Is Discoverable.
The injuries for which plaintiff is suing occurred when defendant Collins, using a key given him by
defendant Hotel, entered plaintiff’s hotel room while she was sleeping. How this could have happened
is the central factual issue in this lawsuit. Plaintiff served interrogatories for the purpose of identifying
the individuals who were in a position to have information about the events surrounding plaintiff’s
injury, or about the operation and condition of the door lock by which defendant Collins gained
admittance to plaintiff’s room.
II. Defendant Has Made No Response To Plaintiff’s Interrogatory Asking For The Identities Of Hotel Employees
Present On The Night Of Plaintiff’s Injury.
Interrogatory No. 2 seeks to discover the identities of hotel employees present on the night of plaintiff’s
injury:
Interrogatory No. 2
State the name, address, and telephone number of each employee of Banbury Park Hotel who was
present at the hotel or on duty at any time between 6:00 p.m. on February 5, 1996, and 6:00 a.m. on
February 6, 1996.
III. Other Hotel Guests On The Floor Where Plaintiff’s Injury Occurred May Have Witnessed Relevant Events:
Their Identities Are Discoverable.
continued
Figure W15–2 Sample Memorandum in Support of Plaintiff’s Motion to Compel, continued
Interrogatory No. 3 seeks to discover the identities of other hotel guests registered on plaintiff’s floor on
the night of the plaintiff’s injury. Any of these may have had the opportunity to observe or hear all or
part of the events at issue. Plaintiff seeks their names and addresses so that plaintiff can contact each
one to determine what, if anything, each observed. Defendant has refused to disclose the information
requested.
Interrogatory No. 3
State the name, address, and telephone number of each person who was a registered guest on the
fourth floor of Banbury Park Hotel on the night of February 5, 1996.
Objection. Not calculated to lead to admissible evidence. Disclosure of identities of other hotel guests
violates their right to privacy.
V. Conclusion: The Court Should Order Defendant To Disclose The Identities Of Potential Witnesses As Called
For By Plaintiff’s Interrogatories.
Each of the three interrogatories here at issue seeks to identify potential witnesses, a legitimate, indeed
essential, goal of discovery. Defendant has withheld the information requested—in the case of
Interrogatories Nos. 2 and 4 with no excuse offered, and in the case of Interrogatory No. 3 on the basis
of a ‘right of privacy’ having no basis under federal law.
Plaintiff’s motion to compel should be granted.
RESPECTFULLY SUBMITTED this 12th day of June, 2000.
SIMON & PORTER
_________________
Allen Porter
Step 5 Draft the Motion into a complete memorandum and modify it as nec-
essary to conform to the local rules and customs of
the U.S. district court having jurisdiction in your lo-
cality. (At your instructor’s option, the state court
Now we prepare the motion (see Figure W15–3).
of your locality may be substituted.) Assume the
We have elected to wait until the memorandum is
following hypothetical facts:
complete before writing the motion—that way, we
know exactly what kind of order our argument will You are a paralegal in the office of Allen
support. Porter, attorney for Shannon Martin. The firm’s
office is in your city (make up a suitable
address). The lawsuit, Martin v. Collins, is
Step 6 Attachments pending in the U.S. district court having
jurisdiction in your locality. The other facts of
the hypothetical are unchanged. You have
To the set of motion papers for the judge, we attach received the answers to the six interrogatories
a copy of the interrogatories and answers, since shown at the beginning of the Learning by
they are not voluminous. With all copies, we attach Example section. Allen Porter has assigned you
to analyze the answers and, to the extent that
a certification that we have complied with Local
you find them to be insufficient, take
Rule 1.10(j), as shown in Figure W15–4. appropriate steps to obtain proper answers.
EXERCISES
Motions to Compel: Learning In carrying out this assignment, you should follow
by Doing shop.
Your assignment for this workshop is to expand the 1. Locate the local rules of your U.S. district
skeleton motion to compel shown in Figure W15–2 court pertaining to discovery motions. (For
Figure W15–3 Sample Motion to Compel
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO.____________
Plaintiff, )
) PLAINTIFF’S MOTION TO COMPEL
v. ) ANSWERS TO INTERROGATORIES
) BY DEFENDANT PARK HOTELS
ARTHUR COLLINS, et ux., et al., ) GROUP, INC.
)
Defendants. )
_______________________________________)
Plaintiff respectfully moves pursuant to Rule 37(a), FRCP, for an order of the court compelling
defendant Park Hotels Group, Inc., to serve, on or before August 7, 2000, full and complete answers to
plaintiff’s interrogatories to said defendant dated April 24, 2000, and ordering that said answers shall:
1. Disclose the name, address, and telephone number of each employee of Banbury Park Hotel who
was present at the hotel or on duty at any time between 6:00 p.m. on February 5, 1996, and 6:00 a.m.
on February 6, 1996.
2. Disclose the name, address, and telephone number of each person who was a registered guest on
the fourth floor of Banbury Park Hotel on the night of February 5, 1996.
3. Disclose the name, address, and telephone number of each individual who at any time from January
1, 1995, to the present performed any repair or maintenance on the door lock or door hardware of
Room 407 at the Banbury Park Hotel.
This motion is based upon the accompanying memorandum of law.
SIMON & PORTER
________________________
Allen Porter
many districts, the local rules can be ac- 2. Review and if possible obtain copies for your
cessed from the U.S. Courts Internet site, forms file of a motion to compel, response, and
www.uscourts.gov; if the rules for your court reply filed in the U.S. district court of your lo-
are not available there, they can be obtained cality to use as a guide on matters of format,
from the clerk’s office.) Also, while carrying layout, and organization. Your instructor may
out this assignment, comply with the local be able to provide these or suggest how to ob-
rules governing motions in general which you tain them. Failing that, you can access the
found while carrying out your assignment in court files of pending lawsuits at the clerk’s of-
Workshop 14. fice (but in that case be prepared to take
Figure W15–4 Sample Certification
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO._____
Plaintiff, )
) LOCAL RULE 1.10(J) CERTIFICATE
v. ) OF CONFERENCE IN SUPPORT OF
) PLAINTIFF’S MOTION TO COMPEL
ARTHUR COLLINS, et ux., et al., ) ANSWERS TO INTERROGATORIES
) BY DEFENDANT PARK HOTELS
Defendants. ) GROUP, INC
___________________________)
The undersigned attorney hereby certifies that he has personally consulted with Gail Stoddard, Esq.,
attorney for defendant Park Hotels Group, Inc. in a sincere effort to resolve the issues presented by the
discovery motion that this certificate accompanies, and that counsel have been unable to resolve the
matter.
SIMON & PORTER
_____
Allen Porter
notes—copies are expensive). Find out exactly by reading the case cited in the objec-
what papers need to be filed in connection with tion, In re Convergent Technologies Secu-
a motion to compel in your court, and what rities Litigation, 108 F.R.D. 328 (N.D.Cal.
each one needs to contain. 1985). Do not forget to Shepardize or
3. Following the instructions under Step 1, com- KeyCite to determine whether the hold-
plete the list of deficiencies begun under Step 1 ing of the case has been overruled or
in the Learning by Example section by analyz- modified.
ing Interrogatories Nos. 5 and 6 and writing ap- b. (Full research option) Research each of
propriate list entries. the points listed under Step 3 in the Learn-
ing by Example section. List the issues that
4. At your instructor’s option, modify the letter
you think should be researched that arise
appearing in Figure W15–1 to conform to local
from Interrogatories Nos. 5 and 6 and re-
practice as specified by your instructor.
search those issues. On each issue, try to
5. Following the instructions under Step 3, per- find at least one case decided by a U.S. dis-
form the research necessary to complete the trict court or U.S. Court of Appeals in the
drafting of the memorandum. At your instruc- circuit having appellate jurisdiction over
tor’s option, either: the federal courts of your locality. Take
a. (Minimum research option) Research notes of the citations and holdings of the
the objection made to Interrogatory No. 6 cases that you find.
6. Taking as a starting point the memorandum ex- 7. Following the instructions under Step 5, pre-
cerpted in Figure W15–2, and, at your instruc- pare the motion to compel, conforming to the
tor’s option, either: local rules and customs of your local court.
a. (Minimum research option) Prepare a The motion should be addressed either to In-
complete memorandum supporting a mo- terrogatory No. 6 only, or to the entire set, de-
tion to compel addressed only to Inter- pending on which option your instructor has
rogatory No. 6. assigned.
b. (Full research option) Prepare a com- 8. Following the instructions under Step 6 and ap-
plete memorandum supporting a motion to plicable local rules and customs, prepare a cer-
compel addressed to whatever issues you tificate complying with the requirement to cer-
deem appropriate to assert, arising from all tify that counsel have attempted to resolve the
six interrogatories. issues.
In drafting the memorandum, conform to the local
rules and customs of your local court.
PRACTICE POINTERS
Writing Tips: Brevity
and Simplicity
In motion writing one of the aims is to educate the reader as effortlessly

as possible. Therefore, brevity must be your motto. Keep your paragraphs as
short as possible. Paragraphs that run on for pages are intimidating to read-
ers. Long paragraphs tend to have too many ideas, which makes it difficult for
readers to assimilate even if you provide wonderful transitions and lead them
through every step of the analysis.
Legal concepts tend to be abstract and sometimes complex. Long para-
graphs add to that complexity. If you are expressing difficult concepts you
want to express them in as concise and succinct a manner as possible. Turn
to your own experience for verification. When you are learning a foreign con-
cept do you appreciate short paragraphs with brief, to-the-point explana-
tions? Or do you enjoy sifting through lengthy paragraphs with ponderous ex-
planations? Write as you prefer to be written to.
Sentences too should be as short as possible without sacrificing content.
Sometimes you will find it necessary to write relatively long sentences, be-
cause to break up the thought into separate sentences would interfere with
your explanation. Just remember that long sentences are not a sign of supe-
rior intellect. More often they are a sign of laziness—of a writer who failed to
take the time to rewrite. Keep in mind as well that your most powerful sen-
tences will probably be your shortest sentences. When you really want to
make a lasting impression use a short sentence.
To reinforce this concept of brevity think for a moment of some of the
most powerful oratorical statements: “I have a dream,” “Physician, heal thy-
self,” “The unexamined life is not worth living.” What made these statements
so memorable? In part because they were so short and yet so meaningful. Ad-
vertising slogans are another prime example of the power of brevity. Effective
communicators are masters of verbal efficiency.
You can, however, take brevity to an extreme and make every sentence
short. To make your writing more interesting and powerful, vary your sen-
tence length. Short sentences are not powerful if every sentence is short. They
gain power because they stand apart from the other sentences. In a nutshell,
avoid writing interminably long, convoluted sentences that have to be read

several times before they can be understood. And when you have an impor-
tant point to make, make it using a short sentence.
In keeping with the theme of brevity, simplicity is another goal toward
which to strive. Nothing is served if you write short paragraphs and sen-
tences and use convoluted language in the process. Choose your words care-
fully and selectively, opting for words that effectively and simply convey
ideas. The ideas you are presenting are often complex enough. Do not com-
plicate the matter by using complex terminology.
Simplicity does not require weak words, however. To the contrary, pow-
erful words that conjure up vivid images are preferred. Such words are effi-
cient and accurate. They are efficient in that they create mental image pic-
tures with a minimal use of words. They are accurate in that they are likely to
create the same mental image in the reader’s mind that exists in the writer’s
mind. For example, describing a man as “ambling” creates a clearer mental
image than describing him as “walking slowly and aimlessly.” The image is
not only clearer but requires fewer words.
Choose your words, especially your verbs and adjectives, as carefully as
you do your wardrobe. You select clothes to convey an image of profession-
alism or casualness or elegance, etc. Your vocabulary creates an image as
well. If you want to bore your reader you say over and over “The court held”
but if you want to create a stronger image in the reader’s mind you choose
your verbs more carefully. You might say that the “The court articulated” or
the “The court explained” or “The court pontificated” or “The court be-
moaned” or “The court accentuated.” If you want to create a vague mental im-
age picture you say “It was hot that day.” But if you want to create a vivid men-
tal image picture you say “The searing sun blistered their skin in a few
minutes.” The client isn’t merely “upset,” the client is “tormented” or “agi-
tated.” Your opposition doesn’t just “argue” it “strains to argue” or it “lamely
argues.” The words you choose must accurately portray what you are de-
scribing but they should be vivid. Accurate but vivid words are more power-
ful than bland, generic words.
Another aspect of simplicity is the avoidance of extraneous words, words
that take up space but whose absence will not affect the meaning of what you
are conveying. Legalisms abound in extraneous words: heretofore, aforesaid,
herein, thereunto, etc. Eliminate these words from your vocabulary. Do not
operate under the delusion that you are more “lawyerly” if you adopt such ar-
chaic jargon. When you consider incorporating such a phrase as “in excess
of” ask yourself if you couldn’t as easily say “more than.” Isn’t “annually” just
as good as “per annum”? Isn’t “for” just as effective as “for the purpose of,”
“by” more concise than “on or before,” and “use” more succinct than “uti-
lize”? Must you tell someone you are giving them your “honest opinion”?
Can’t we assume that any opinion you give will be honest? Why say “In the
case of X. v. Y.” when you can simply say “In X. v. Y.”?
When reviewing your writing, take on the role of an efficiency expert.
Imagine that each word costs you money. Then eliminate every word that is
duplicative, archaic, or otherwise unnecessary. Be tough with yourself in this
process but fair. Do not eliminate important words in the name of efficiency
and do not change the meaning in the process.
TECHNO TIP
Most of us use the copper wire tele- rates (approximately 1,000k bps) but
phone line to connect with the Inter- the user communicates with the site at
net. Current technology limits the her modem rate, generally a maximum
transmission rates on these lines to 56k of 56k bps.
bps. If you are connected to a fiber op- Special lines now being offered by
tics line the potential for data transmis- the communication industry, such as
sion greatly increases. Currently fiber the T-1 connection can transmit at over
optic lines can transmit at over 10,000k 1,000k bps. These lines are becoming
bps (10,000,000 bps). Transmission more economically feasible but only for
rates of 1,000,000k bps are possible be- the serious (and financially benefited)
cause fiber optic cables transmit with user. Technology in this area is con-
light rather than electrical impulses. stantly evolving. Wireless solutions cur-
Currently the cost of such a connection rently exist that allow you to use your
is out of reach for the individual. Satel- cellular phone to receive and transmit
lite communication is, however, avail- data. A modem is still required but
able. In satellite systems the data is many have interfaces that allow con-
downloaded at extremely high data nection to the cellular phone.
FORMS FILE
In your forms file, include a copy of a motion to compel, a motion

for sanctions, or a motion for a protective order as well as a response
and a reply. Make sure each motion includes a memorandum of points
and authorities. Have an attorney or faculty member review each mo-
tion to make sure that it is well researched, argued, and written.
Motions for Summary
Judgment and Other
Tactical Motions WORKSHOP
16
INTRODUCTION: WHAT MOTIONS question is one with which you are very fa-
CAN ACHIEVE miliar, it is unlikely that you will notice the
omission unless you are looking for it.
The right motion at the right time can often win a
■ Someone is suing your client on a claim aris-
lawsuit, or at least gain such an advantage that the
ing from a statute, but has not complied with
opposing party has no choice but to offer favorable
the statutory prerequisites for suing. You may
settlement terms. A motion to dismiss, if successful,
never discover the defect unless you research
may terminate the lawsuit in defendant’s favor; a
the statute, find out what the prerequisites
motion for summary judgment can be used by ei-
are, and check specifically to see whether
ther party to obtain judgment without a trial when
they have been met.
the evidence disproportionately favors one side. In
this workshop, we learn how to analyze a case to de- To deal with situations of the kind to which this
termine what motions of this kind, if any, should be workshop is addressed, we need a systematic way
filed. We also examine in detail the procedure for fil- of dissecting a case to ensure that we have not over-
ing a motion for summary judgment. looked any important issues. The best way to en-
sure that nothing is missed is to make a checklist of
the possible motions, determine what circum-
THE DECISION TO FILE A MOTION stances would support each one, and ask ourselves
Most of the motions that we have considered in the whether those circumstances exist in our case.
preceding workshops are reactive in nature; that is,
an event occurs that makes the need for a motion CHECKLIST OF EARLY-STAGE
obvious. For example: TACTICAL MOTIONS
■ Your supervising attorney represents clients In the discussion to follow, we review a number of
in two different lawsuits that are scheduled common types of motions and learn how to recog-
for trial on the same date. Obviously, a motion nize the situations in which each can be used to ad-
for a continuance is in order in one or the vantage. We do this in the context of the analysis
other. that an attorney would perform in the beginning
■ An opposing party has not answered your in- stages of a lawsuit—defendant’s attorney after re-
terrogatories. The 30-day period for answer- ceiving the complaint, plaintiff’s attorney after re-
ing is long past, and your demand letters have ceiving defendant’s answer. We begin with motions
been ignored. Obviously, you need to file a that address the claims and defenses raised by the
motion asking the judge to order your oppo- pleadings, then proceed to motions involving tech-
nent to serve answers. nical or procedural issues.
■ Your client has just been sued over an auto- Most, but not all, of the motions we discuss here
mobile accident that happened several years are inherently defense oriented; they are aimed at
ago, beyond the time period allowed by the various defects that may exist in plaintiff’s case.
applicable statute of limitations. Obviously, a Does this mean that the kind of analysis that we are
motion to dismiss is called for. describing is of interest only to defendants? Most
emphatically not; to succeed in litigation, we must
At the beginning stages of a lawsuit, however,
always be on the lookout not only for opportunities
motion opportunities often exist that we may fail to
to attack the opposing party’s case, but also for op-
notice unless we are looking for them. For example:
portunities for the opposing party to attack our
■ You are defending a suit in which the oppos- case. When we represent a plaintiff, we want to an-
ing party’s complaint fails to include one of ticipate—and correct—any problems that might
the required elements of one of the causes of otherwise give the defendant an opportunity to
action alleged. Unless the cause of action in move against us.
536 WORKSHOP 16 Motions for Summary Judgment and Other Tactical Motions
We include for each type of motion a highlighted The first type of defect may be attacked via a motion
summary description giving a brief example, citing to dismiss (claims) or motion to strike (defenses).
the governing federal rule, and providing space for The second type requires a motion for summary
you to write in the corresponding rule for the state judgment.
courts of your locality. Since part of our purpose is A motion to dismiss for failure to state a
to suggest a systematic way of analyzing a case, we claim—often referred to in federal court as an
also offer what we have called an “analysis question” “FRCP, Rule 12(b)(6) motion,” and in older case law
encapsulating the thought process that you would sometimes called a “demurrer”—provides a way
follow to decide whether each motion is warranted for defendant to seek dismissal of improperly
in a given situation. We summarize this material in a pleaded claims. Under the federal rules, a motion
chart (Figure W16–1) at the end of this section. to dismiss must be made, if at all, before the an-
swer is filed.
Motions Relating to the Claims and De- In deciding a motion to dismiss, the issue is
fenses—We begin with the workhorse motions of whether, if all of the allegations of plaintiff’s com-
civil litigation, those used for testing and refining plaint are taken as true, there would be a basis for a
the claims and defenses asserted in the complaint judgment in plaintiff’s favor. If plaintiff has included
and answer. These are the motion to dismiss for fail- in the complaint any cause of action that is not rec-
ure to state a claim; the motion to strike; and the mo- ognized as legally valid, or has omitted required el-
tion for summary judgment. The purpose of each is ements of an otherwise valid cause of action, the
to try to defuse one or more of the opposing party’s court has the power to dismiss the invalid claim or
claims or defenses. claims.
Motion to Dismiss for Failure to State a Claim Obviously, to analyze whether plaintiff’s com-
Analysis question: For each claim being plaint correctly alleges each element of each cause
asserted in the complaint, (1) does the law of action, we would first need to ascertain what are
recognize a cause of action and (2) are all the elements of each of the causes of action. A good
elements of that cause of action properly way to do this is to research and prepare an issues
alleged? outline, following the instructions given in Work-
Authority: FRCP, Rule 12(b)(6). shop 1, then compare the outline with the complaint
When permitted: Before answer is filed. to see whether each required element is present.
Example: The complaint alleges a cause of A motion to dismiss may be directed to one
action for the tort of battery, but fails to include claim, several claims, or the entire complaint.
any allegation that defendant made a harmful or
Where plaintiff has “shotgunned” the case, accom-
offensive physical contact with plaintiff. Since
“harmful or offensive touching” is an element of panying some arguably meritorious causes of action
the tort of battery (see Workshop 1), the with others of improbable validity, a motion to dis-
complaint, on its face, fails to state a valid cause miss can sometimes be a useful tool for weeding out
of action for battery. Defendant can move to the shakier claims.
dismiss the cause of action for battery. As a weapon for killing off badly pleaded claims,
however, motions to dismiss suffer from one serious
Your Local Notes drawback: The claims they attack tend not to stay
dead. When granting motions to dismiss for failure
_________________________________________________
to state a claim, judges routinely grant plaintiff leave
_________________________________________________ to amend the complaint and restate the defective
claim. In effect, by moving to dismiss, defendant is
merely giving plaintiff a free education and a chance
There are two basic ways in which a claim or de- to correct pleading defects before they do any real
fense can be subject to attack by motion: damage to plaintiff’s case. For this reason, experi-
enced litigators prefer to avoid motions to dismiss
1. There can be an inherent defect in the way that for failure to state a claim. It is better to include
the claim or defense has been pleaded—that is, some argument about the lack of evidence, call the
one or more of the elements of the claim or de- motion a motion for summary judgment, and get a
fense can be incorrectly stated or missing; or ruling that will stick.
2. The claim or defense can be correctly pleaded, Motion to Strike
with all of its elements correctly alleged, but Analysis question: For each affirmative
the evidence supporting one or more elements defense alleged in the answer, (1) does the law
is not sufficient to create a “genuine issue of recognize the defense as valid and (2) is the
material fact.” defense correctly pleaded?
WORKSHOP 16 Motions for Summary Judgment and Other Tactical Motions 537
Authority: FRCP, Rule 12(f).

Your Local Notes
When permitted: Within 20 days after
answer is filed. _________________________________________________
Example: The complaint alleges a valid
cause of action for the tort of battery. The _________________________________________________
answer alleges “contributory negligence” as an
affirmative defense. “Contributory negligence” is
not a valid defense to a claim for battery. The purpose of a motion for summary judgment
Plaintiff could make a motion to strike the is to weed out claims or defenses that are so weakly
“contributory negligence” defense. supported by the evidence that it would be a waste
of time to submit them to the jury for decision. If the
Your Local Notes facts on which a claim depends are clear, and there
is no dispute about what happened, then the judge
_________________________________________________ can, and should, decide the claim immediately.
_________________________________________________ To understand how motions for summary judg-
ment work, think about how claims are proved in a
lawsuit. Take a simple example: a suit in which the
complaint makes only one claim, for battery, and the
A motion to strike is plaintiff’s counterpart to answer raises no affirmative defense. The elements
the motion to dismiss. Plaintiff can use a motion to of the tort of battery (see Workshop 1) are (1) an act
strike to ask the court to eliminate invalid or im- by defendant, (2) intent, (3) harmful or offensive
properly pleaded defenses from defendant’s an- contact, and (4) damages. Suppose plaintiff presents
swer. A motion to strike an invalid defense must be her evidence, and defendant presents no evidence
made within 20 days after the answer is filed; see at all—could a jury reasonably find each of the four
FRCP, Rule 12(f). (Motions to strike can also be used elements to be established? If so, then defendant is
for other purposes, such as to remove “redundant, not entitled to summary judgment, regardless of
immaterial, impertinent, or scandalous matter” how strong defendant’s evidence may be. If, how-
from either the complaint or the answer. However, ever, plaintiff’s evidence on any of the elements is
motions to strike used for such purposes rarely ac- not sufficient to allow a reasonable jury to consider
complish anything very useful strategically, and are that element established, then defendant is entitled
therefore seldom seen.) to summary judgment.
As with the motion to dismiss, the practical util- How does the judge determine whether a party
ity of motions to strike is questionable. If a defense has presented enough evidence to establish a fact?
is invalid now, it will still be invalid later. There is Since the trial has not yet begun, what evidence is
usually little point in educating the opposing party there for the judge to base the decision on? A de-
about the problems with his pleadings any earlier fendant’s motion for summary judgment is said to
than necessary. “put the plaintiff to her proof”—when defendant
Motion for Summary Judgment (by Defendant) files a motion for summary judgment, it is up to
Analysis question: On any element of any of plaintiff to put forward whatever evidence there is
the causes of action alleged in the complaint, is to support the claim being attacked. Plaintiff can do
plaintiff’s evidence so weak as not to raise a this by submitting copies of discovery responses or
genuine issue of material fact? deposition transcripts and by submitting affidavits
Authority: FRCP, Rule 56(b). of witnesses stating what their testimony would be.
When permitted: At any time after the filing FRCP, Rule 56(c), states:
of the complaint; no later than the cutoff date, if
any, set by the scheduling order. [Summary judgment] shall be rendered
Example: The complaint alleges a cause of forthwith if the pleadings, depositions, answers
action for the tort of battery, and properly to interrogatories, and admissions on file,
alleges that defendant “touched” plaintiff in a together with the affidavits, if any, show that
harmful or offensive way. In fact, however, there is no genuine issue as to any material fact
plaintiff has no evidence that any touching and that the moving party is entitled to
occurred. The complaint is not defective, judgment as a matter of law.
because the correct elements of the tort of
battery have been alleged. Defendant could, It is possible for defendant to obtain summary judg-
however, file a motion for summary judgment, ment on a claim by “knocking out” any required ele-
accompanied by proof that no touching ment of the claim. It is also possible for defendant to
occurred, asking the judge to throw out the obtain summary judgment by establishing a valid af-
plaintiff’s battery claim. firmative defense. If defendant presents evidence
(discovery responses and affidavits) sufficient to than with the elements of the claims themselves.
support each required element of an affirmative de- The rules of procedure provide an array of options
fense, and plaintiff is unable to produce enough for attacking such “nonmerits” defects. We examine
contrary evidence to create a genuine factual issue, several of the most important here; others, such as
defendant is entitled to summary judgment. motions addressing the capacity of the parties, join-
A motion for summary judgment may seek to der of indispensable parties, and other similar tech-
dispose of all the claims in a case—in effect, ending nical issues, are beyond the scope of this introduc-
the entire lawsuit—or may be aimed at only certain tory text.
claims. A party may also, in appropriate circum- Motion to Dismiss for Lack of Subject Matter
stances, move for “partial summary judgment” on Jurisdiction
particular issues; see FRCP, Rule 56(d).
Analysis question: Does the court have
The procedural details involved in submitting a jurisdiction of the subject matter of the action?
motion for summary judgment—paperwork re- Authority: FRCP, Rule 12(b)(1).
quired, time limits, and the like—are governed When permitted: Although Rule 12(b)
partly by FRCP, Rule 56, and partly by local rule. We purports to require that a motion to dismiss be
explore summary judgment procedure in detail made before the answer is filed, the cases hold
later in this workshop. that lack of subject matter jurisdiction may be
Motion for Summary Judgment (by Plaintiff) raised at any time, including on appeal.
Example: Defendant injures plaintiff in a
Analysis question: For each of plaintiff’s motor vehicle accident. Plaintiff and defendant
causes of action, can plaintiff produce enough are both residents of the same state. Plaintiff
evidence to establish a prima facie case on each sues in federal district court. Motor vehicle
element? If so, is defendant unable to produce negligence does not arise from federal law, and
sufficient evidence to raise a genuine issue of there is no “diversity of citizenship” jurisdiction
material fact on any element? because plaintiff and defendant are residents of
Authority: FRCP, Rule 56(a). the same state. The federal district court has no
When permitted: At least 20 days after subject matter jurisdiction. Defendant may
complaint is filed or after service of motion for move to dismiss under Rule 12(b)(1), FRCP.
summary judgment by defendant; no later than
the cutoff date, if any, set by the scheduling order.
Your Local Notes
Example: The complaint alleges a cause of
action to collect a debt for which defendant has _________________________________________________
given a promissory note. Plaintiff can produce
evidence that the loan was made and that it _________________________________________________
remains unpaid. Defendant is unable to produce
any evidence to counter any of the elements of
plaintiff’s claim or to establish any valid Courts of limited subject matter jurisdiction
defense. Plaintiff can move for summary
have no power to adjudicate any cases other than
judgment, asking the court to enter judgment
against defendant for the amount owed. those for which authority has been granted by
statute. Federal courts are courts of limited subject
matter jurisdiction, so in federal court lawsuits, it is
Your Local Notes
very important for both parties to verify carefully
_________________________________________________ that the court has jurisdiction. The main trial
courts in each state typically have subject matter
_________________________________________________
jurisdiction to hear any kind of case, so subject mat-
ter jurisdiction is usually not an issue in state court
(although in rare circumstances it can be). If defen-
If plaintiff presents evidence in support of each dant believes that the court does not have subject
element of a claim, and defendant is unable to pre- matter jurisdiction, a motion to dismiss under
sent evidence to negate any element, then plaintiff FRCP, Rule 12(b)(1), is appropriate. See Workshop 2
is entitled to move for—and win—summary judg- for detailed coverage of jurisdiction of the subject
ment. The procedure for presenting and deciding matter.
the motion is the same as that for a motion for sum- Motion to Dismiss for Lack of Personal
mary judgment by defendant. Jurisdiction
Motions Asserting Defects Unrelated to the Analysis question: Does the court have
Merits—Sometimes the flaws in a case have to do jurisdiction of the person of each defendant?
with jurisdictional or procedural problems, rather Authority: FRCP, Rule 12(b)(2).
When permitted: Before the answer is filed; the applicable venue statute, defendant may move
filing an answer waives the defense. to dismiss under FRCP, Rule 12(b)(3), before filing
Example: Plaintiff, a resident of Vermont, is an answer; if defendant fails to do so, any venue de-
vacationing in New York City. He is injured when fects are waived; see FRCP, Rule 12(h).
defendant, a New York resident, runs the wheel Motion to Dismiss or Motion for Summary
of her taxicab over his foot. Plaintiff files suit in Judgment Based on Statute of Limitations
Vermont. Defendant has no “minimum contacts”
with that state, so a Vermont court cannot Analysis question: Was the action filed
assert personal jurisdiction over her. Defendant within the time period allowed under the
may move to dismiss under Rule 12(B)(2). applicable statute of limitations?
Authority: FRCP, Rule 12(b)(6) and Rule 56.
Your Local Notes When permitted: Motion to dismiss: before
the answer is filed. Motion for summary
_________________________________________________ judgment: any time after the filing of the
_________________________________________________ complaint and before the cutoff, if any, stated in
the scheduling order.
Example (Motion to Dismiss): Plaintiff sues
defendant, a surgeon, for medical malpractice.
The court has no power to render a binding judg- Under the applicable state statute of limitations,
ment against a person over whom the court does the limitation period for actions based on
not have personal jurisdiction. We explored the in- medical negligence is 1 year. The complaint
tricacies of personal jurisdiction in Workshop 2. If alleges that the defendant doctor negligently
the court does not have jurisdiction over the per- left a surgical instrument inside plaintiff during
son of a given defendant, that defendant may, if de- an operation on February 1, 2001. The
sired, nonetheless consent to jurisdiction, explic- complaint is filed on February 2, 2002.
Defendant can move to dismiss for failure to
itly or by the act of filing an answer. If defendant
state a claim since the facts alleged in the
wishes to contest the court’s jurisdiction of her per- complaint, if taken as true, are not sufficient to
son, a motion to dismiss under FRCP, Rule 12(b)(3), establish a valid cause of action.
is the proper choice. Example (Motion for Summary Judgment):
Motion to Dismiss for Improper Venue Same facts, except that the complaint does not
say when the negligent act was committed.
Analysis question: Was the action brought
Defendant can, however, move for summary
in a place that is permitted under the applicable
judgment, supporting the motion with an
venue statutes?
affidavit establishing the date on which the
Authority: FRCP, Rule 12(b)(3).
surgery took place. Assuming plaintiff cannot
When permitted: Before the answer is filed.
produce contrary evidence of a different date,
Example: Same facts as the previous example:
summary judgment would be granted.
Plaintiff, a resident of Vermont, is vacationing in
New York City and is injured when defendant, a
New York City resident, runs the wheel of her Your Local Notes
taxicab over his foot. This time, plaintiff files suit _________________________________________________
in the Northern District of New York. Defendant is
a resident of New York so the court has personal _________________________________________________
jurisdiction over her. However, New York City is in
the Southern District of New York, not the
Northern District, so plaintiff’s choice of forum Plaintiff’s claims should always be scrutinized
does not comply with the federal venue statute, for statute of limitations defenses. As the examples
28 U.S.C. §1391. Defendant may move to dismiss
indicate, sometimes a statute of limitations defense
under Rule 12(B)(3).
is apparent by reference to the complaint alone; in
other cases, it is necessary to obtain the dates
Your Local Notes
through discovery or from other sources. Remem-
_________________________________________________ ber, however, that in many cases the “triggering of
_________________________________________________ the statute of limitations does not begin until the
plaintiff knew, or should have known, of the con-
duct giving rise to the claim.” See Workshop 3 for
more detail on statutes of limitations.
Venue, as we explained in detail in Workshop 2,
involves statutory limits on the place of filing suit. A Checklist of Tactical Motions—We conclude
If plaintiff’s choice of venue does not comply with our discussion of tactical motions with the chart
Figure W16–1 Checklist of Tactical Motions
Analysis question Motion When Made Authority

For each claim being asserted in Motion to Dismiss Before answer is filed FRCP, Rule
the complaint, (1) does the law for Failure to State 12(b)(6)
recognize a cause of action and a Claim
(2) are all elements of that cause
of action properly alleged?
For each affirmative defense Motion to Strike Within 20 days after FRCP, Rule
alleged in the answer, (1) does answer is filed 12(f)
the law recognize the defense
as valid and (2) is the defense
correctly pleaded?
On any element of any of the Motion for At any time after the FRCP, Rule
causes of action alleged in the Summary filing of the complaint; 56(b)
complaint, is plaintiff’s evidence Judgment (by no later than the cutoff
so weak as not to raise a Defendant) date, if any, set by the
genuine issue of material fact? scheduling order
For each of plaintiff’s causes of Motion for At least 20 days after FRCP, Rule
action, can plaintiff produce Summary complaint is filed or after 56(a)
enough evidence to establish a Judgment (by service of motion for
prima facie case on each Plaintiff) summary judgment by
element? If so, is defendant defendant; no later than
unable to produce sufficient the cutoff date, if any, set
evidence to raise a genuine issue by the scheduling order
of material fact on any element?
Does the court have jurisdiction Motion to Dismiss At any time, including on FRCP, Rule
of the subject matter of the for Lack of Subject appeal 12(b)(1)
action? Matter Jurisdiction
Does the court have jurisdiction Motion to Dismiss Before the answer is FRCP, Rule
of the person of each for Lack of filed—filing an answer 12(b)(2)
defendant? Personal waives the defense
Jurisdiction
Was the action brought in a Motion to Dismiss Before the answer is filed FRCP, Rule
place that is permitted under for Improper 12(b)(3)
the applicable venue statutes? Venue
Was the action filed within the Motion to Dismiss Motion to dismiss before FRCP,
time period allowed under the or Motion for the answer is filed. Rule
applicable statute of Summary Motion for summary 12(b)(6);
limitations? Judgment Based judgment: any time after Rule
on Statute of the filing of the 56(b)
Limitations complaint and before the
cutoff, if any, stated in
the scheduling order.
shown in Figure W16–1, which summarizes the main sented is not exhaustive; it does not include motions
points and illustrates the thought process that we under FRCP, Rules 17, 19, and 21, for example. Our in-
would follow in analyzing a case for possible motions tent is merely to provide the student with a starting
to be filed. (We reiterate that the list that we have pre- point for understanding how motions are used.)
Motions for Summary 4. Identify the gaps in plaintiff’s evidence—any el-

ements for which there seems to be no sup-
Judgment by Defendant: porting evidence. Any causes of action requir-
ing proof of any of those elements are good
Step-by-Step Instructions candidates for a motion for summary judg-
The remainder of this workshop is devoted to ex- ment.
amining one particular type of motion, the defense 5. Also research each cause of action to deter-
motion for summary judgment. We have chosen mine what, if any, affirmative defenses apply.
this particular motion because it is made in almost
every case of any complexity, often repeatedly as 6. List the elements of each affirmative defense.
defendant attempts to pick off one of plaintiff’s 7. List the evidence available to establish each el-
claims, then another, and because it provides a ement of each affirmative defense, and the
good vehicle for illustrating some of the details of counterevidence that plaintiff will likely offer to
federal court motion procedure. rebut each one.
Here are the basic steps that a defendant might
8. If there is a legally recognized affirmative de-
follow to prepare a motion for summary judgment.
fense to a given cause of action, and if we can
For brevity, we describe only the preparation and
produce evidence to establish each element of
drafting steps. The follow-up steps (filing, getting
that affirmative defense, and if plaintiff is un-
the motion before the judge for decision, docketing
able to produce significant counterevidence on
the response date, etc.) are essentially the same as
any of the elements, we can move for summary
for any other motion—see Steps 4 through 9 of
judgment based on the affirmative defense.
Workshop 14.
Plaintiffs’ attorneys are usually not so inept as
to file complaints alleging causes of action for
Analyze Complaint and Identify which they have no evidence. Usually, the opportu-
Step 1 Issues to Attack nity for defendant to move for summary judgment
arises from a disagreement about what the law re-
To grant a motion for summary judgment, the judge quires in terms of the elements of plaintiff’s claims.
must find that (1) there is no genuine issue of mate- According to plaintiff’s theory of the case, plaintiff
rial fact and (2) the moving party is entitled to judg- need only prove elements A, B, and C to succeed,
ment as a matter of law; see FRCP, Rule 56(c). For a but under defendant’s legal analysis plaintiff must
defense motion for summary judgment to succeed, prove elements A, B, C, and D—and plaintiff has no
defendant must establish to the judge’s satisfaction evidence to prove D.
both that the elements of plaintiff’s claims are what Most of the argument in a motion for summary
defendant says they are (i.e., establish what the law judgment is aimed at trying to convince the judge of
is), and that, at least as to one element, plaintiff the moving party’s formulation of the legal theories.
lacks enough evidence to even create a genuine de- Factual arguments are generally useless; if the evi-
bate. (Defendant may also, of course, succeed by dence is conflicting as to what the facts are, then there
establishing an affirmative defense.) is, almost by definition, a “genuine issue of material
Before we can prepare a motion for summary fact” and summary judgment is not appropriate.
judgment, we must first identify the points where Therefore, what we are really looking for as we
the plaintiff’s claims are vulnerable to attack. This analyze the claims is authorities that will allow us to
requires a systematic review of the claims and de- argue that plaintiff’s legal theories have some addi-
fenses, along the following lines: tional elements that plaintiff has overlooked,
and/or authorities supporting affirmative defenses
1. Read the complaint carefully and make a list of
that plaintiff cannot rebut.
each legal theory or cause of action being as-
serted.
2. Research each cause of action on the list and
determine exactly what elements plaintiff must Step 2 Draft the Motion
prove to establish it.
3. Element by element, for each element of each A motion for summary judgment is a filed court pa-
cause of action, list the evidence, if any, that per of the usual kind, constructed with the usual
plaintiff is likely to be able to produce. caption, title, preamble, date and signature lines,
and certificate of service. All of these parts should (What is “proper summary judgment evidence”?
be familiar; if not, see Workshops 4 and 14. See Step 5 next.)
The exact wording of the preamble and the way Some districts require the parties to submit the
in which the motion, memorandum, statement of statements of facts as separately captioned docu-
facts, and supporting evidence are divided up ments; others provide for the statement of facts to be
among separately captioned documents depend on included as part of the memorandum. Consult your
local rules and customs. local rules for the procedure followed in the federal
district court of your locality. As for state courts,
some now require a separate statement of facts and
Memorandum of Points
Step 3 and Authorities
some do not; your instructor will inform you of the
practice in the state courts of your locality, and tell
you where to find the applicable rules, if any.
The heart of a motion for summary judgment is the
memorandum. This is where we present the argu-
Your Local Notes
ment that will succeed or fail at convincing the
judge that the law applicable to plaintiff’s claims is _________________________________________________
what we say it is. We have examined the fine points _________________________________________________
of memorandum writing elsewhere (see Step 2 of
Workshop 14) and the same principles apply here.
Supporting Evidence
Step 4 Statement of Facts Step 5 and Affidavits
To make it easier for the judge to determine exactly Motions for summary judgment differ from many
what each party’s factual contentions are, many other kinds of routine motions in the need for es-
federal district courts have adopted local rules re- tablishing facts.
quiring each party to submit a formal “statement of If the motion seeks to win by asserting an affir-
facts” with any motion for summary judgment or re- mative defense, defendant, as moving party, must
sponse. The idea is to force the parties to specify submit with the motion prima facie evidence of the
the precise facts claimed to be in dispute. The mov- facts needed to establish each element of the de-
ing party submits list of the facts she deems perti- fense. (Prima facie evidence of a fact means enough
nent to the motion, each fact set forth separately evidence to support a finding that the fact is true, if
and numbered. Then the responding party submits neither side presented any other evidence about
a similar list, indicating which of the moving party’s the fact.) To overcome the motion and avoid sum-
facts are disputed. Both lists must support each mary judgment, plaintiff would then need to ac-
fact with citations to the record (i.e., indicate which company the response with at least some credible
affidavit or discovery response establishes the fact evidence to rebut at least one of the elements of the
and give the page and paragraph or line number affirmative defense.
where it appears). The judge can then compare the If the motion is based on plaintiff’s inability to
two statements of facts, item by item, to determine produce prima facie evidence supporting all of the
for which facts the evidence is conflicting. Local elements of plaintiff’s causes of action, it is still ad-
Rule CV-56 of the U.S. District Court for the Eastern visable for defendant to submit evidence that one
District of Texas is typical: or more of the elements of plaintiff’s claims could
not be true. Defendant can, by moving for sum-
Any party moving for summary judgment mary judgment, force plaintiff to “put up or shut
should identify both the legal and factual basis up”—either show evidence supporting the claims,
for its motion. The text of the motion or an or see them dismissed. FRCP, Rule 56(e) provides:
appendix thereto must include a “Statement of
Material Facts.” If the movant relies upon When a motion for summary judgment is
evidence to support its motion, the motion made and supported as provided in this rule, an
should include appropriate citations to proper adverse party may not rest upon the mere
summary judgment evidence as to which the allegations or denials of the adverse party’s
moving party contends there is no genuine pleading, but the adverse party’s response [to
issue of material fact for trial. Proper the motion for summary judgment], by
summary judgment evidence should be affidavits or as otherwise provided in this rule,
attached to the motion in accordance with must set forth specific facts showing that there
section (d) of this rule. is a genuine issue for trial. If the adverse party
does not so respond, summary judgment, if materials are to be presented. Here is how Local Rule
appropriate, shall be entered against the CV-56(d) of the U.S. District Court for the Eastern Dis-
adverse party. trict of Texas defines “proper summary judgment ev-
idence”—its instructions are good advice, even in
In practice, the motion is more likely to succeed if
districts that lack such a rule:
defendant takes the initiative and produces evi-
dence of what the real facts are, rather than pas- “[P]roper summary judgment evidence”
sively relying on plaintiff’s inability to establish his means excerpted copies of pleadings,
version of the facts. depositions, answers to interrogatories,
A basic principle of summary judgment proce- admissions, affidavits, and other admissible
dure is that the judge does not decide factual dis- evidence cited in the motion for summary
putes. In fact, one good way to defeat a motion for judgment or the response thereto. The phrase
“appropriate citations” means that any
summary judgment is to convince the judge that
excerpted evidentiary materials that are
the evidence is genuinely conflicting—then the attached to the motion or the response should
judge must let the jury sort out the evidence and de- be referred to by page and, if possible, by line.
cide what the facts are. Any attached evidentiary materials should have
There are several ways in which we can present the cited portions highlighted in the copy
evidence to the judge in connection with a motion provided to the court, unless the citation
for summary judgment: encompasses the entire page. The page
preceding and following a highlighted page may
■ We can submit affidavits. In summary judg-
be submitted if necessary to place the
ment practice, affidavits are routinely used as highlighted material in its proper context. Only
a kind of substitute for live testimony, to relevant, cited-to excerpts of evidentiary
show what a witness’s testimony would be. materials should be attached to the motion or
FRCP, Rule 56(e), provides that the affidavits the response.
must “be made on personal knowledge,”
must “set forth such facts as would be ad- Your Local Notes
missible in evidence,” and must “show affir-
_________________________________________________
matively that the affiant is competent to tes-
tify to the matters stated.” (The affiant is the _________________________________________________
person signing the affidavit.) In effect, the af-
fidavit may say only those things that the af-
fiant would be allowed to testify to on the wit-
ness stand—hearsay is not allowed, and Motions for Summary
proper foundation must be laid.
■ We can attach document exhibits to the affi- Judgment by Defendant:
davits. Just as in court, the documents must Learning by Example
be admissible in evidence and submitted in a
form complying with FRCP, Rule 56(e) (that We now illustrate the ideas just presented by ap-
is, sworn or certified copies). plying them to the facts of our Martin vs. Collins
■ We can submit copies of discovery responses hypo and preparing a motion for summary judg-
and/or excerpts from deposition transcripts. ment on behalf of defendant Park Hotels Group, Inc.
FRCP, Rule 56(c), directs the judge to con-
sider “the pleadings, depositions, answers to Analyze Complaint and Identify
interrogatories, and admissions on file, to- Step 1 Issues to Attack
gether with the affidavits, if any. . . .” As a
practical matter, the judge will usually con- Plaintiff’s complaint (see Workshop 5) asserts only
sider only what the parties submit. Judges do one cause of action against defendant Park Hotels
not have time to browse through all of the Group, Inc. Counts I, II, and III of the complaint are
pleadings and discovery in the case file, and, against defendant Collins only; Count IV is against the
anyway, in most federal courts today the de- hotel, for negligence. Count V is not strictly a “cause
positions and discovery responses are never of action”—it sets forth the claim that plaintiff is enti-
filed so the judge has no way to consider tled to punitive damages against all defendants.
them unless the parties submit them. There are two possible ways of attacking the
Some federal district courts have adopted local negligence cause of action. One is to convince the
rules specifying the manner in which the evidentiary court that plaintiff has no evidence to support one
of the elements of the claim; the other is to estab- (a) The wrongful act which caused the
lish an affirmative defense based on facts that plain- death or injury was foreseeable; and
tiff cannot dispute. (b) There is a preponderance of evidence
The elements of the tort of negligence are (1) a that the owner or keeper did not exercise due
duty, (2) its breach, (3) causation, and (4) damages. care for the safety of the patron or other
The damages element is not promising: clearly person on the premises.
Shannon can produce evidence showing that she ....
was injured. Causation has possibilities—the ques- The court shall determine as a matter of law
tion is whether Shannon’s damages were caused by whether the wrongful act was foreseeable. . . .
3. For the purposes of this section, a
the negligence of the hotel. From our knowledge of
wrongful act is not foreseeable unless:
tort law, we are aware that there is a body of case
law dealing with the concept of “intervening cause.” (a) The owner or keeper failed to exercise
We might be able to find case law support for the ar- due care for the safety of the patron or other
person on the premises; or
gument that even if the hotel was negligent, the real
cause of plaintiff’s damages was the actions of Dr. (b) Prior incidents of similar wrongful acts
Collins; this issue is worth researching. occurred on the premises and the owner or
We will assume (but in a real case we would re- keeper had notice or knowledge of those
search it) that a hotel has a duty not to give strangers incidents.
access to a guest’s hotel room. The question, of This statute furnishes a nearly ideal basis for a mo-
course, is whether the hotel breached that duty. The tion for summary judgment—it could hardly be
hotel could argue (as Gail Stoddard does in the story more favorable if we had written it ourselves (and,
on which our hypo is based, see Chapter 5, that the in fact, it probably was written by lawyers for the
evidence is undisputed that the key found in Shan- Nevada hotel industry).
non’s room could not have opened her door). How- We analyze section 651.15 to distill the ele-
ever, plaintiff could properly argue (as Allen Porter ments of the affirmative defense that it creates. Fig-
does in our story) that Shannon testified that she ure W16–2 lists our breakdown, together with our
locked the door, and Dr. Collins testified that the key tentative conclusions concerning the evidence on
he was given did open the door. Therefore (as the each element:
judge properly found in our story), what we have is
a classic question of fact—part of the evidence (the
key) suggests that hotel could not have been re- Step 2 Draft the Motion
sponsible for Dr. Collins gaining entry to Shannon’s
room, and part of the evidence (Shannon’s and Dr.
Collins’s testimony) suggest the contrary. After conducting the necessary research, we pro-
What about affirmative defenses? The obvious ceed to draft the motion and supporting papers.
affirmative defense to negligence is the defense of Since our hypothetical lawsuit is pending in the U.S.
contributory negligence (or, in some states, com- District Court for the District of Arizona, we will fol-
parative negligence). Shannon’s failure to secure low that court’s local rules regarding format, layout,
the chain lock on her door lends some support; this and required parts. The draft motion is shown in
defense also bears researching. Figure W16–3.
There is another affirmative defense, however,
that has considerable potential: section 651.15 of
the Nevada Revised Statutes. This is the statute lim- Memorandum of Points
Step 3 and Authorities
iting the liability of a hotel for death or injury to a
guest caused by someone who is not an employee of
the hotel. We reproduce the salient provisions here: The memorandum is, of course, the heart of the mo-
tion (Figure W16–4). Memoranda in support of mo-
651.15 Civil liability of innkeepers for tions for summary judgment are necessarily
death or injury of person on premises caused lengthy in order to allow presentation of the legal
by person who is not employee. argument and discussion of the supporting author-
1. An owner or keeper of any hotel, inn,
ities. Not too lengthy, however; we must be mindful
motel, motor court, boardinghouse or
lodginghouse is not civilly liable for the death of the page limit set by local rules. In this case, the
or injury of a patron or other person on the limit set by Local Rule 1.10(e) of the U.S. District
premises caused by another person who is not Court for the District of Arizona is “fifteen (15)
an employee under the control or supervision pages, exclusive of attachments and any required
of the owner or keeper unless: statement of facts.”
Figure W16–2 Elements of Affirmative Defense under Nevada Revised Statute §651.15
Element Evidence
1. Defendant is the owner of a hotel. Undisputed; plaintiff will not be able to produce
evidence to the contrary.
2. Plaintiff was injured while a “patron or other Again, undisputed; plaintiff’s own complaint
person on the premises.” establishes this element.
3. Plaintiff’s injury was “caused by another Plaintiff will be unable to dispute that Dr. Collins is
person who is not an employee under the not a hotel employee. Plaintiff will try to argue
control or supervision of the owner.” that it was the hotel’s negligence, not Dr. Collins,
that “caused” her injury. This issue is probably
plaintiff’s best chance to avoid summary
judgment, and will have to be researched.
4. The wrongful act which caused the death or (To evaluate foreseeability element, we must break
injury was not foreseeable; to establish this we it down into its subelements in accordance with
must show both: subsection 3 of the statute.)
4(a). Defendant did not fail to exercise due care This is another element that leaves plaintiff some
for plaintiff’s safety; and opening; to support motion for summary
judgment, we can submit hotel manager’s
affidavit that the hotel exercised due care.
4(b). No prior incidents of similar wrongful acts We can establish this element by the hotel
had occurred on the premises manager’s affidavit; assuming no prior incidents
occurred, plaintiff will be unable to rebut. We will,
of course, carefully investigate to verify that no
prior incidents occurred.
You may also be wondering how we can get

Step 4 Statement of Facts
away with citing the complaint as a source of evi-
dence in the statement of facts. If we were repre-
Looking up the local rules for the U.S. District Court for senting plaintiff, we could not; but since we are rep-
the District of Arizona, we find that Local Rule resenting defendant, we can assume that if plaintiff
1.10(1)(1) requires that a motion for summary judg- alleged a fact in the complaint, and we agree with it,
ment be accompanied by a separate statement of facts: it must be undisputed.
Any party filing a motion for summary In paragraph 5 of the statement of facts we
judgment shall set forth separately from the state that the hotel uses due care for the safety of
memorandum of law, and in full, the specific its guests. Obviously, we do that because, under
facts on which that party relies in support of the Nevada statute, we need to show that the ho-
the motion. The specific facts shall be set forth tel used due care in order to establish that the in-
in serial fashion and not in narrative form. As to jury was not foreseeable. The statement seems
each fact, the statement shall refer to a specific quite conclusory; surely the court is not just go-
portion of the record where the fact may be ing to take the hotel manager’s word for it that we
found (i.e., affidavit, deposition, etc.). use due care—isn’t that what the lawsuit is all
Figure W16–5 shows our statement of facts for Mar- about? In fact, in a real lawsuit, where we would
tin v. Collins. not be limited by space constraints, we would cer-
You may be wondering why, given our usual dis- tainly want to “beef up” this point, probably by
taste for archaic phraseology, we keep using the getting affidavits from the hotel security chief and
word “herein” (i.e., “complaint herein”). The word other similarly placed employees detailing all the
“herein” in this context is simply a shorthand way measures that the hotel takes to ensure the safety
of saying “filed in this lawsuit.” of its guests.
Figure W16–3 Sample Motion for Summary Judgment

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) MOTION FOR SUMMARY
v. ) JUDGMENT OF DEFENDANT
) PARK HOTELS GROUP, INC.
)
Defendants. )
____________________________________)
Defendant Park Hotels Group, Inc. respectfully moves pursuant to Rule 56, Federal Rules of Civil
Procedure, for summary judgment dismissing plaintiff’s claims against said defendant.
This motion is based upon the accompanying memorandum of points and authorities and
affidavit of Corby Jamison.
______________________________
Gail Stoddard
Group, Inc.
Supporting Evidence of this workshop, and produce a finished set of mo-

Step 5 and Affidavits tion papers conforming to the rules and customs of
the court selected by your instructor. This may be
Along with our motion for summary judgment and the U.S. district court having jurisdiction in your lo-
supporting memorandum, we need to submit any sup- cality or, at your instructor’s option, the state trial
porting evidence and affidavits. Figure W16–6 shows court for your county. Assume the following:
the affidavit of Corby Jamison, which is referenced ex-
tensively in our statement of facts (see Figure W16–5). You are a paralegal in the office of Gail
Stoddard, who represents Park Hotels Group,
Inc. The firm’s office is in your city (make up a
Motions for Summary suitable address). The lawsuit, Martin v. Collins,
Judgment by Defendant: is pending in the court selected by your
instructor. The other facts of the hypothetical
Learning by Doing are unchanged. Ms. Stoddard has assigned to
you the task of preparing a motion for summary
Your assignment for this workshop is to begin with judgment asserting the statutory defense under
the excerpts from the motion for summary judg- Nev. Rev. Stat. Ann. §651.15 (reproduced in full
ment as shown in the Learning by Example section in Workshop 14).
Figure W16–4 Sample Memorandum in Support of Motion for Summary Judgment

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) MEMORANDUM IN SUPPORT OF
v. ) MOTION FOR SUMMARY
) JUDGMENT OF DEFENDANT
ARTHUR COLLINS, et ux., et al., ) PARK HOTELS GROUP, INC
)
Defendants. )
__________________________________)
Summary of Argument
1. By Nevada statute, a hotel is not liable to a guest for injuries inflicted by another guest unless
the wrongful act causing the injury was foreseeable. Nev. Rev. Stat. Ann. §651.15.
2. Also by Nevada statute, an injury to a hotel guest by another guest is not foreseeable as a
matter of law unless either the hotel owner failed to exercise due care for the safety of the guest, or was
placed on notice by prior incidents involving similar wrongful acts. As established by the accompanying
affidavit of Corby Jamison, the hotel owner at all times exercised due care and no similar prior incidents
have occurred.
3. Nevada has the most “significant relationship” to plaintiff’s claims which arise from events at a
Nevada hotel. Defendant’s liability is to be determined according to Nevada law.
Argument
I. Factual Background: Plaintiff Was Injured
by Another Hotel Guest: The Circumstances Were Unforeseeable.
While staying at the Las Vegas hotel operated by defendant Park Hotels Group, plaintiff was
injured in her room by another hotel guest, defendant Collins. The
.......
II. Nevada Hotels Are Not Liable to Guests
for Acts Committed by Other Guests Where Hotel Used Due Care and No Previous Similar Incidents
Had Occurred
In Nevada by statute, a hotel owner is not liable for injuries inflicted by one hotel guest on
another unless the injuries are “foreseeable” as that term is defined by the statute. Nev. Rev. Stat. Ann.
§651.15 provides:
.......
V. Conclusion: Nev. Rev. Stat. Ann. §651.15
Provides a Valid and Complete Affirmative
Defense to Plaintiff’s Claim against Defendant
Park Hotels Group
continued
Figure W16–4 Sample Memorandum in Support of Motion for Summary Judgment, continued
Under Nevada law by statute, hotels are not liable for injuries inflicted by one hotel guest on
another unless either the hotel owner failed to exercise due care for the safety of the injured guest, or
had notice of similar previous incidents.
Defendant Park Hotels Group not only exercised due care, it took extraordinary precautions for
the safety of its guests, including providing each room with a chain lock, which, had plaintiff used it,
would clearly have prevented the incident for which she is suing. There has never been any report of
any other incident in which a guest at Banbury Park Hotel entered the room of another guest and
committed an assault.
The Court should grant summary judgment dismissing plaintiff’s claims against defendant Park
Hotels Group, Inc.
______________________________
Gail Stoddard
Group, Inc.
(Certificate of mailing goes here)
EXERCISES court of your locality, together with supporting

papers, to use as a guide on matters of format,
In carrying out this assignment, you should fol-
layout, and organization. Your instructor may
low the step-by-step formula described in this
be able to provide these or suggest how to ob-
workshop.
tain them. Failing that, you can access the
1. Locate the local rule(s) of the court selected by court files of pending lawsuits at the clerk’s of-
your instructor, if any, pertaining to motions fice (but in that case be prepared to take
for summary judgment. (For many federal dis- notes—copies are expensive). Find out exactly
trict courts, the local rules can be accessed what papers need to be filed in connection with
from the U.S. Courts Internet site, www. a motion for summary judgment in your court,
uscourts.gov.) and what each one needs to contain.
2. Determine from your local rules, from your in- 4. Prepare, in final form suitable for filing in the
structor, or by calling the clerk’s office: U.S. district court of your locality, a motion for
a. Any page limits applicable to motions for summary judgment on behalf of Park Hotels
summary judgment and responses; Group, Inc., asserting the defense of Nev. Rev.
b. The time periods allowed for response and Stat. Ann. §651.15, together with all required
reply (these are often longer for motions for supporting papers. Prepare:
summary judgment than for other motions); a. The affidavit of Corby Jamison. Do not
c. Any requirements for a statement of facts or change the facts stated, but redo the affi-
other similar required accompanying pa- davit to make it suitable for filing in the
pers; court selected by your instructor.
d. Whether the court routinely hears argument b. An affidavit for signature by Ron Kanne, who
on motions for summary judgment and, if is the chief of security for Banbury Park Ho-
so, how the argument is scheduled and no- tel. Your main purpose in submitting this af-
ticed; fidavit is to establish that the hotel does, in
e. Any other provisions specifically applicable the words of the Nevada statute, “exercise
to motions for summary judgment. due care for the safety” of its guests. To pre-
pare the affidavit you will need to interview
Write a short memo to your supervising attorney
Ron Kanne to find out in detail what mea-
summarizing your findings.
sures Banbury Park Hotel takes to ensure the
3. Review and if possible obtain copies for your safety of its guests. This will be accom-
forms file of a motion for summary judgment, plished by students in pairs as follows: One
response, and reply filed in the U.S. district student in each pair will play the role of Ron
Figure W16–5 Sample Statement of Facts

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) STATEMENT OF FACTS IN
v. ) SUPPORT OF MOTION FOR
) SUMMARY JUDGMENT OF
ARTHUR COLLINS, et ux., et al., ) DEFENDANT PARK HOTELS
) GROUP, INC.
Defendants. )
_____________________________________)
Defendant Park Hotels Group, Inc., pursuant to Local Rule 1.10(1) of the U.S. District Court for
the District of Arizona, submits the following statement of facts in support of its motion for summary
judgment:
1. Plaintiff was a guest at the Banbury Park Hotel, Las Vegas, Nevada, on the night of February 5,
1996. (Complaint herein at paragraph 5; answer herein at paragraph 4; affidavit of Corby Jamison
dated June 22, 2000, at paragraph 2.)
2. Banbury Park Hotel was at all material times owned and operated by defendant Park Hotels
Group, Inc. (Affidavit of Corby Jamison dated June 22, 2000, at paragraph 3.)
3. Plaintiff’s injuries were inflicted by defendant Arthur Collins. (Complaint herein at paragraph 7.)
4. Defendant Arthur Collins has never been an employee of defendant Park Hotels Group, Inc.
(Affidavit of Corby Jamison dated June 22, 2000, at paragraph 4.)
5. Banbury Park Hotel exercises due care for the safety of its guests. (Affidavit of Corby Jamison
dated June 22, 2000, at paragraphs 5, 6, and 7.)
6. Banbury Park Hotel complies with all applicable building safety regulations, including provision
of interior safety chain locks on all guest room doors, and including the posting of safety notices urging
guests to fasten the safety chain locks while occupying their rooms. (Affidavit of Corby Jamison dated
June 22, 2000, at paragraph 6.)
7. There has at no time been any reported previous incident at Banbury Park Hotel in which any
person has entered the room of a hotel guest and assaulted the guest therein. (Affidavit of Corby
Jamison dated June 22, 2000, at paragraph 7.)
_______________________
Gail Stoddard
Group, Inc.
(Certificate of mailing goes here)
Figure W16–6 Sample Affidavit

Gail Stoddard, Esq.
(602) 555-1234
DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) AFFIDAVIT OF CORBY JAMISON
v. ) IN SUPPORT OF MOTION FOR
) SUMMARY JUDGMENT OF
ARTHUR COLLINS, et ux., et al., ) DEFENDANT PARK HOTELS
) GROUP, INC.
Defendants. )
__________________________________)
STATE OF NEVADA )
)
County of Clark )
Corby Jamison, being first duly sworn, upon his oath deposes and says:
1. I have been the general manager of Banbury Park Hotel, Las Vegas, Nevada, at all times since
the hotel opened on January 22, 1992. I make this affidavit on the basis of personal knowledge.
2. According to the records of the hotel, Plaintiff was a guest at the Banbury Park Hotel, Las
Vegas, Nevada, on the night of February 5, 1996.
3. Banbury Park Hotel was on that date, and at all times since, owned and operated by defendant
4. Defendant Arthur Collins has never been an employee of defendant Park Hotels Group, Inc.
5. Banbury Park Hotel at all times exercises the highest care for the safety of its guests.
6. Banbury Park Hotel complies with all applicable building safety regulations, including provision
of interior safety chain locks on all guest room doors, and including the posting of safety notices urging
guests to fasten the safety chain locks while occupying their rooms.
7. There has at no time been any reported previous incident at Banbury Park Hotel in which any
person has entered the room of a hotel guest and assaulted the guest therein.
DATED this 22nd day of June, 2000.
_______________________________
Corby Jamison
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this 22nd day of June,
2000.
_______________________________
Notary Public

Kanne; the other will play the role of the davit of Ron Kanne. You may also refer to the
paralegal and conduct the interview. The complaint and answer.
student playing the role of Ron Kanne will try d. The memorandum in support of the motion.
to answer the interviewer’s questions in the You may use the excerpts shown in Step 3 of
most helpful way possible, and is free to the Learning by Example section as a guide,
make up the answers to the interviewers or you may completely rewrite the memo-
questions as the interview proceeds. The ob- randum in your own way. You may assume
jective of the student playing the role of Ron that the court will follow Nevada law, and
Kanne is to “invent” the best (reasonable) se- omit the part of the argument showing that
curity arrangements for guest safety that he Nevada has the most “significant relation-
or she can imagine. The objective of the stu- ship” with the facts of the case. In writing
dent playing the role of the interviewer is to the memorandum, be sure to follow any sug-
produce the strongest possible affidavit to gestions of your instructor as necessary to
support the motion for summary judgment. make the format and organization conform
After the interview, the pair will together to local practice. At your instructor’s op-
prepare an affidavit for signature by Ron tion, do additional legal research and obtain
Kanne in a form suitable for submission to case citations as appropriate to support the
the court selected by your instructor in sup- arguments made in your motion.
port of the motion for summary judgment. e. The motion for summary judgment itself and
c. The statement of facts, if required under the any notice of motion and/or other paper re-
rules or customary practice of the court se- quired under the rules and customs of the
lected by your instructor. You may refer to court selected by your instructor.
the affidavit of Corby Jamison and the affi-
PRACTICE POINTERS
Writing Tips
Refining Your Writing Skills
Say What Is Important First—Reserve the beginning of sentences for the

most important part of your message. Do not stash the subject of the sentence
away in the middle or leave it to the end. Say it up front. Consider the follow-
ing example:
Whether or not subject matter jurisdiction existed was the matter to
be resolved by the court.
The writer is trying to convey the nature of the issue the court had to resolve.
Why not let the reader know in the first few words that this sentence reveals
what the court resolved?
The court had to resolve the issue of subject matter jurisdiction.
Avoid Long Quotations—When you are reading, do you have a tendency to

skip over extensive quotations, hoping they are not crucial to your under-
standing? Follow the “golden” rule of good writing. Do not inflict on others
what you would not have inflicted on yourself. Few people have the discipline
required to read through lengthy quotations. Therefore, if you feel you must
quote, pick out the essential phrases or words and express the remainder in
your own words. If you absolutely cannot forgo the quote (on the grounds that
the court or legal commentator said it so much better than you could) then
either before or after the quote explain what they said in your own words.
Such paraphrasing will discourage you from too easily succumbing to the
temptation to quote. You will find that there are few expressions that are so
eloquent that they must be quoted.
On the other hand, in some cases quoting is necessary. If you are dis-
cussing a statute, ordinance, or regulation you must quote the relevant parts.
Similarly, if you are discussing a contract you should quote the sections at is-
sue. Also, if you need to convey a court’s or party’s exact words, especially if
legal terms of art are being used, then you should quote. The latter is a judg-
ment call. If you are not sure that you can accurately paraphrase what is be-
ing said, first quote and then paraphrase. The reader can then decide if you
have paraphrased accurately.
Avoiding the “in X. v. Y.” Construction—Tempting as it may be to begin

each sentence “In U.S. v. White the court held . . . while in U.S. v. Black the
court held. . . ,” avoid this configuration as much as possible. A preferable way
to discuss case law is to set forth the holding of the court in terms that make
its relevance to the case at hand clear. Then identify the court using a citation
at the end of the sentence.
When a court is faced with an equal protection claim it must use one
of three levels of review. City of Cleburne v. Cleburne Living Center, 473 U.S.
432 (1985). To determine the appropriate level of review the court must
first decide whether the statute affects a suspect class. Id. at 439. A
suspect class is one that has endured a history of purposeful and
invidious discrimination and lacks the political power to obtain redress
from the political branches of government. Watkins v. U.S. Army, 875 F.2d
699 (9th Cir. 1989).
Notice how much more fluently this paragraph reads than the following
paragraph.
In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the
Court held equal protection claims require the use of one of three levels
of review. The Court also held that before determining the appropriate
level of review a court must first decide whether the statute affects a
suspect class. In Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989), the
court held that a suspect class is one that has endured a history of
purposeful and invidious discrimination and that lacks the political
power to obtain redress from the political branches of government.
Citations at the beginning of sentences tend to interfere with the legal con-
cepts being presented. They grab the reader’s attention and divert it away
from the more important concepts presented within the sentence.
You will find it tempting to use the “In A. v. B. the court held . . .” con-
struction because it relieves you of the responsibility of connecting one case
to another. Transitions tend to disappear and your memo becomes a string of
cases discussed one after one another with no mention of how they are all re-
lated. You can avoid this trap by incorporating transitional words into your
writing and always asking “Why am I discussing this case” and “How does this
case relate to the previous case and the next case?”
TECHNO TIP
Being able to communicate and transfer Various encryption programs that

information cheaply and instantane- scramble data so that it is unintelligible
ously on the Internet carries with it a to anyone who does not have the de-
price often overlooked—lack of security. coding program, are now available.
As you will see in Workshop 19 (and Some of the programs are very sophis-
which you probably already know) a ticated and so difficult to “break” that
client’s confidences must be maintained the federal government has put restric-
“inviolate.” How can we be sure that tions on their exportation. One of the
the information we are transmitting re- problems with these programs is that
mains confidential? How can we ensure they can be used only when the recipi-
that our data is not compromised or re- ent has access to the same program.
ceived by someone other than the per-
son we are directing it to?
FORMS FILE
Include a sample motion for summary judgment and a response

and a reply in your forms file. You may also want to include samples of
other types of tactical motions as well. Make sure to get copies of the
supporting papers (such as affidavits) as well.
KEY TERM
affiant
How to Prepare
for Trial
WORKSHOP
17
INTRODUCTION: THE ORDEAL To win any money from defendant, plaintiff must get
OF TRIAL the case to judgment. Absent a successful motion for
summary judgment or other similar maneuver, plain-
Modern civil jury trials are, above all, expensive. If tiff cannot win without a trial. Defendant, on the
all of the costs are included—lawyer’s fees, expert other hand, already has the money that plaintiff is
witness fees, jury fees, cost of the facilities, salaries trying to win, and would usually like to keep it as
of judge, court reporter, bailiff, and clerk—all but long as possible. As long as there is no trial, there can
the simplest trials can generate costs running to be no judgment ordering defendant to pay plaintiff.
many thousands of dollars per trial day. Therefore, unless defendant is fairly sure of winning,
As these costs rise, so does the determination of defendant may have a strong incentive to delay go-
courts and judges to try each case as efficiently as ing to trial, and will do everything possible to con-
possible. Lengthy arguments over objections, lines vince the judge that the case is not ready for trial.
of questioning that turn out to lead nowhere, testi- There is also the problem of overbooking. Judges
mony proving facts that no one seriously disputes— know that the majority of trials do not actually pro-
in short, any activities that take up time and do not ceed as scheduled. Many cases are settled on the eve
contribute directly to the presentation of the main of trial—there is nothing more effective than the pres-
case—are seen as costly wastes of time. sure of a looming trial date to bring litigants to the
A trial is made up of a great many details, all of bargaining table. Trials may also be postponed at the
which must come together at a single time and last minute due to unexpected procedural glitches or
place. Witnesses must be scheduled and prepared. scheduling conflicts. Postponements also occur
Exhibits must be copied, marked, and organized. when a trial takes longer than expected—sometimes
Jury instructions must be researched and submit- weeks longer—preventing the next trial from start-
ted. Disputes over legal and evidentiary issues must ing. The result is that courts must schedule as many
be anticipated, any necessary research completed, as half a dozen trials for each available time slot, so
and memoranda prepared. Rather than take the as to be sure of having at least one that will actually
chance that trials will be interrupted or delayed be- proceed. Of course, there is no reliable way to predict
cause some item has been overlooked, courts are in- which cases will settle or need to be postponed, so
creasingly adopting procedures designed to force there is a high risk of having two or more active trials
the lawyers to attend to all of the required prepara- set at the same time before the same judge.
tion tasks well before the trial begins. Because of these problems, in many courts a
In this workshop, we study the procedures that case often goes through a series of trial settings. Pri-
relate directly to trial preparation. We begin with a ority for trial is often based on the age of the case. If
brief look at the steps required to obtain a trial date. several cases are ready to proceed on the same trial
Then we will present a checklist of typical trial date, the case that was filed earliest goes to trial and
preparation tasks, and examine each of the proce- the rest are postponed. In a system of this kind, the
dures that must be completed before trial. Finally, likelihood of actually going to trial on the first trial
we will assemble a trial notebook, a loose-leaf setting tends to be low, and increases with each
binder used to organize the papers that the trial at- postponement as the case gets older. The attorneys
torney may need to locate quickly during the trial. can never be absolutely sure that a case will or will
not proceed as scheduled, so they must prepare for
HOW TO OBTAIN A TRIAL SETTING each trial setting as though certain of going forward.
The costs spiral upward, as attorneys are forced to
Before there can be a trial, the court must assign a prepare for trial several times on each case.
trial date. You might suppose that getting a trial date
would be simple—how hard can it be for a secretary
to check the judge’s calendar for an open date?— Your Local Notes
but there are several reasons why this is not so.
_________________________________________________
Why Trial Scheduling Is Complicated—First of _________________________________________________
all, like everything in litigation, trial setting often be-
comes a tactical battleground between the litigants.
556 WORKSHOP 17 How To Prepare for Trial
The Virtue of Firm Trial Dates—In 1990, the Con- Your Local Notes
gress enacted legislation requiring each U.S. district
court to appoint an advisory group of lawyers and _________________________________________________
citizens to study the problem of rising expense and _________________________________________________
delay in civil litigation, and to recommend plans de-
signed to process civil cases more efficiently; see 28
U.S.C. § 471 et seq. As we have seen, one major tar-
get for reform has been the discovery process. Trial Trial Setting Procedure in U.S. District Courts—
scheduling procedure is another important focus. Each U.S. district court establishes its own proce-
According to the Civil Justice Expense and Delay Re- dures for setting trial dates. You cannot find out how
duction Plan adopted by the U.S. District Court for to obtain a trial setting in a given court by consulting
the Northern District of Texas, “A credible, firm trial the Federal Rules of Civil Procedure; trial setting pro-
date is the sine qua non of reducing excessive costs cedure is found in local rules and in orders issued by
and delay.” When a court grants a firm trial date, individual judges. Rule 40, FRCP, provides:
the parties are assured that, barring some extraor- The district courts shall provide by rule for
dinary event, the case will go to trial on that date— the placing of actions upon the trial calendar
no excuses accepted. Much duplication of effort is (1) without request of the parties or (2) upon
eliminated since the attorneys need only prepare for request of a party and notice to the other
trial once. parties or (3) in such other manner as the
How can a court grant firm trial dates when courts deem expedient.
there is no way to predict which cases will settle be- The first two options specified reflect traditional
fore trial? Must we schedule only one case per time practice, still followed in some state courts but
slot, leaving the judge sitting around with nothing to largely abandoned in U.S. district courts. Courts
do every time a case settles? What about the prob- that calendar trials “without request of the parties”
lem of trials that take longer than expected? typically issue minute entries setting a trial date.
There are no easy solutions to these problems, This is done automatically when each case reaches
but many U.S. district courts have found ways of a designated stage. In courts that set trial dates
coping with them, to the point that trial settings can “upon request of a party,” the usual procedure al-
be made reasonably firm: lows either party to file a motion to set. The rules
■ If two cases are ready to begin trial at the may require the moving party to certify that the
same time, another judge can be brought in to case is ready for trial; that is, issue is joined, dis-
try one of them. Perhaps another judge’s covery is complete, all necessary parties are pres-
cases have all settled, leaving him free to help ent. If the opposing party disputes the motion to set,
with the overflow. In appropriate circum- the judge decides when and if the case should go to
stances, cases can be tried before magistrate trial; if the motion is unopposed, the court sets a
judges or pro tem judges. (A judge pro tem is trial date and notifies the parties by minute entry.
usually an experienced attorney who volun- In most federal district courts, pretrial procedure
teers to act as a judge in a particular case. has been substantially overhauled in response to
Many courts have programs to recruit and Congress’s 1990 mandate for each district to adopt a
qualify pro tem judges, so as to have help plan for reducing expense and delay in civil lawsuits.
available when needed.) No two districts’ procedures are identical, but many
■ The court can require the parties to sub- include some or all of the following features:
stantially complete their discovery and ■ Greater judicial supervision. Instead of allow-
other preparation before asking for a trial ing the attorneys a completely free hand in
date. Many U.S. district courts issue a trial case preparation, the judge takes an active
setting only after the parties appear at a pre- role. Attorneys are required to appear in
trial conference and convince the judge that court for scheduling conferences and status
all is in readiness. That way, neither party conferences, at which the judge asks for de-
can credibly ask for a postponement by tailed information about what each side is do-
claiming that more discovery or pretrial ing to prepare for trial. The judge makes spe-
work remains to be done. cific decisions about what discovery and
■ Mandatory settlement conferences can be other preparation tasks the attorneys need to
held, well in advance of trial, so that some of complete, and sets deadlines.
the cases that are destined to settle will settle ■ Active verification of trial readiness. Since the
earlier. judge is keeping informed about the status of
WORKSHOP 17 How To Prepare for Trial 557
the case, she is in a position to make an in- 3. Initial case management conference [Rules 16-
formed decision about the parties’ readiness 14(a) and (b)]. By the 120th day, the attorneys
for trial before setting a trial date. must appear for an initial case management con-
■ Case tracking. Cases are assigned to different ference, which may be conducted by the as-
“tracks” according to their complexity and signed district judge or by a magistrate judge.
other factors. Routine cases (such as collection This is basically a Rule 16(b) scheduling confer-
of student loans) are segregated in separate ence of the kind we discussed in Workshop 14,
tracks. Tracking helps make the court’s trial but with an extended agenda. The judge reviews
load more predictable by identifying the cases the case management statement filed by the par-
that will need extended trial time and providing ties, discusses any problems with the attorneys,
alternate pathways for those that do not. and enters an “initial case management order.”
■ Formal articulation of preparation tasks. Instead 4. Case management order [Rule 16-14(b)]. The
of leaving it to the attorneys to figure out what goal of the conference is to produce a case man-
tasks need to be completed prior to trial, the lo- agement order. The order must “identify the
cal rules spell out a number of specific require- principal issues of the case, review the parties’
ments, with completion deadlines for each. disclosure and document production, review
motions to be filed, establish a discovery plan,
The exact procedure by which a trial date is ob- set appropriate limits on discovery and con-
tained varies considerably from district to district. sider the propriety of referring the case to ADR.”
(Your instructor will inform you of the procedure Rule 16-14(b) lists fifteen different items that the
followed in the U.S. district court having jurisdiction order may address. Among other things, the or-
in your locality, or you can check the local rules.) By der may set a trial date and schedule.
way of example, here are the broad outlines of the
trial setting procedure under current Local Rule 16 5. Subsequent case management statements and
of the U.S. District Court for the Northern District of case management conferences [Rules 16-14(c)
California. It is fairly typical of the relatively com- and (d)]. The court may require the attorneys
plex case management schemes commonly seen in to appear periodically for additional case man-
busy metropolitan districts. (We do not reproduce agement conferences, so that the judge can
the entire rule because it is some ten pages long; monitor their progress in completing the as-
you can find it on the Internet by going to signed tasks. Prior to each conference, the at-
www.cand.uscourts.gov and following the links.) torneys must file an updated joint case man-
agement statement reflecting the current status
1. Case management schedule (Local Rule 16-2). of the case. If no trial date was set at the initial
When plaintiff files the complaint, the clerk au- case management conference, the judge may do
tomatically issues an initial “case management so at a subsequent conference.
schedule” setting various deadlines. Trial
counsel for both sides must meet and confer 6. Joint pretrial conference (Rule 16-15). At the
by the 90th day after the filing of the com- time that the judge sets a trial date, he or she
plaint. The litigants must make their initial dis- also sets a date for a final pretrial conference. At
closures by the 100th day, file a “case manage- least 30 days before the conference, the lead at-
ment statement” by the 110th day, and appear torneys who will try the case must meet and
before the court for a case management con- confer to prepare the “pretrial conference state-
ference by the 120th day. ment.” The pretrial conference statement is to
contain detailed descriptions of the factual and
2. Case management statement (Local Rule 16-13). legal issues, lists of witnesses and exhibits, and
The case management statement, prepared other information to be used in planning for the
jointly by the attorneys for both parties and trial. (We will have more to say about pretrial
filed by the 110th day, is to inform the court statements and pretrial orders later.) The or-
about the factual and legal issues and propose ders that the judge makes at the pretrial con-
a detailed schedule for completing all antici- ference “control the subsequent course of the
pated discovery, disclosure, motions, and other action”; see FRCP, Rule 16.
pretrial tasks. The clerk issues instructions for
preparing the statement, and a list of its re- Trial setting procedure in state court ranges
quired contents, when the suit is filed. In the over the entire spectrum of possibilities, from sim-
case management statement, the attorneys re- ple systems in which the court issues trial dates
quest a trial date and indicate how long the trial more or less automatically, to complex ones that are
is expected to take. as demanding as those of the busiest federal district
courts. State court procedures are not always “judge-specific” rules and orders. You may not suc-
spelled out very clearly in published local rules, so ceed in finding all of the information that you need.
you may need to consult your instructor or speak to Many of the details—the way in which voir dire is
a judge’s secretary or someone in the clerk’s office conducted, the procedure for submitting jury in-
to find out exactly how the trial-setting system structions, how exhibits are to be marked—are of-
works in the state courts of your locality. ten left up to the individual judge’s discretion. Some
judges issue standard minute entries in each case,
Your Local Notes describing their preferences and expectations. Oth-
ers offer little or no guidance beyond a few verbal
_________________________________________________
instructions in pretrial conferences. Sometimes, a
_________________________________________________ judge’s particular requirements can be nailed down
in advance only by consulting another attorney
who has tried cases before the same judge (not a
bad idea, in any case) or by asking the judge’s sec-
TRIAL PREPARATION TASKS retary or clerk.
We have obtained a trial date, and it is fast ap- Your instructor will apprise you of the pertinent
proaching. Now what? What must we do to ensure rules and practices of the courts of your locality.
that all is in readiness when the trial begins?
Every trial is different—and every trial is the Your Local Notes
same. The parties and issues change, but every jury _________________________________________________
case involves the same basic sequence of events. A
jury trial is like a stage production: We have actors _________________________________________________
(the witnesses), a script (good attorneys plan the
questioning in advance), and props (exhibits and
demonstrative evidence). Behind the scenes, other
activities are going on: motions, scheduling, settling
Final Discovery
of jury instructions and voir dire questions. All of Task 1 Supplementation and Disclosure
these details require careful advance preparation.
The preparation tasks that we discuss here are
By the time trial preparation gets under way in
not necessarily carried out in any particular order.
earnest, discovery should usually be complete or
Many of the deadlines are compressed into the space
nearly so. In most federal district courts, the initial
of a few weeks immediately prior to the beginning of
scheduling order imposes a discovery cutoff date,
trial, so we will usually be working feverishly on a
usually several months in advance of the expected
number of items at the same time. (During the week
trial date.
or so preceding a major trial, the trial attorneys and
There is, however, one part of discovery that is
litigation paralegals assigned to the case are often
necessarily left until the final pretrial preparation
running on pure adrenaline, putting in 16-hour days,
stage: the designation of trial witnesses and ex-
going home only to shower and change, if at all.)
hibits. In the early stages of the lawsuit, we disclose
Because there is no prescribed sequence, we
the identities of people who have information relat-
will deviate from our usual step-by-step presenta-
ing to the case and turn over pertinent documents,
tion, and instead merely list the tasks that must typ-
but it is usually impossible to say at that point ex-
ically be done during the last stages of preparing for
actly which of those people will actually be called
a jury trial.
as witnesses at the trial, and which documents will
actually be offered as exhibits.
In districts that do not opt out of Rule 26(a) dis-
Trial Preparation: A closure, the final “wave” of required disclosure is
Task-Oriented Checklist due 30 days before trial. At that time, each party
must disclose the name, address, and telephone
The following discussion describes and illustrates number of each witness to be called at trial, and a
the trial preparation tasks called for in a typical fed- list identifying each document and exhibit to be of-
eral district court. As usual, the details vary some- fered. Each party must also designate which, if any,
what according to the rules and customs of each ju- deposition testimony will be used at trial in lieu of
risdiction. To determine how your local courts live witnesses; see FRCP, Rule 26(a)(3). The oppos-
handle each task, begin by consulting the local ing party must then, no later than 14 days before
rules. Next, look for published general orders and trial, specify any objections to exhibits.
In courts that adhere to traditional discovery be included, it is usually possible to agree on word-
methods, similar disclosure is usually required, not ing that all can accept. Items that the attorneys can-
because the rules mandate it, but because the op- not agree on are included with a brief explanation of
posing party will almost certainly have served dis- each side’s position.
covery requests asking for the identities of wit- A pretrial order typically includes all or most of
nesses and copies of exhibits. If that information the following categories, which appear in separate
has not been provided already, Rule 26(e) requires numbered or lettered sections1:
a supplemental response disclosing it. ■ Names, addresses, and telephone numbers of
the attorneys for all parties.
Your Local Notes
■ A statement of the court’s jurisdiction. Usually,
_________________________________________________ by the time the case is nearing readiness for
_________________________________________________ trial, any serious jurisdictional disputes
should already have been raised by motion
and decided. In many cases, the parties do
not dispute the court’s jurisdiction, and the
pretrial order merely recites the agreed ba-
Task 2 Pretrial Statement or Order sis for it.
■ A description of the nature of the action. A
Faced with punishing caseloads, most federal judges short (a paragraph or less) statement of what
today keep a tight rein on the proceedings in their the lawsuit is about.
courtrooms. Trial time is a scarce commodity, and ■ Contentions of the parties. A short description
not to be wasted on unprepared attorneys who floun- of what each side claims happened. The
der around trying to figure out which witness to call statement of contentions does not delve into
next. Before beginning a trial, judges want to be as- evidentiary details. It is a short and conclu-
sured that the attorneys know exactly what they are sory statement of what each side intends to
going to present and, to the extent possible, have prove, suitable for telling someone unfamiliar
prepared everything that they will need in advance. with the case—such as a prospective juror—
One procedural tool that judges use to accom- what each side’s position is.
plish this is the pretrial statement or pretrial order.
A pretrial order is a document, in the form of a filed ■ Stipulations and uncontested facts. Recall from
court paper typically prepared jointly by the attor- Workshop 1 that plaintiff’s job in a lawsuit is
neys and signed by the judge, that specifies exactly to prove one or more causes of action; each
what the attorneys may present at the trial. Some cause of action has elements that plaintiff
courts provide instead for the attorneys to jointly must establish by proving specific facts. De-
prepare and file a document, often called a pretrial fendant can defeat a given cause of action ei-
statement or pretrial conference statement; the ther by preventing plaintiff from proving one
contents are the same, but instead of signing the of its required elements, or by proving facts
document itself the judge enters an order approv- establishing each of the elements of a recog-
ing it. Either way, the end result is a filed document nized affirmative defense. The purpose of a
that controls the course of the trial. (To avoid repe- trial is to decide which facts each side has
tition, we will use the term pretrial order to encom- proved. There is, of course, no point wasting
pass all of the various permutations.) trial time proving facts that both sides agree
In some federal district courts, the local rules are true. This section of the pretrial order is
spell out clearly the items to be included in a pre- intended to force the attorneys to think about
trial order and specify the procedure to be fol- and discuss their factual contentions, and to
lowed. In others, pretrial order procedure is left up articulate the facts on which they agree.
to individual judges. Whether the procedure calls
for a pretrial order or a pretrial statement, it is the
1
attorneys, not the judge, who write it—the judge’s These are generic categories distilled from
role is to review, order changes if necessary, and ap- Eastern District of Texas Local Rule CV-16 and
prove. Usually, each attorney writes a rough draft Eastern District of Nebraska Local Rule 16.2. For a
setting forth proposed wording for the items that he sample form pretrial order, see Appendix D of the
wants included in the final pretrial order. Then the Eastern District of Texas Local Rules, which may
attorneys meet and combine the drafts into a single be found on the Internet at
document. For items that all attorneys agree should www.txed.uscourts.gov.
■ Contested issues of fact. By the same token, hibits not listed in the pretrial order will not be
the trial can proceed most efficiently if the at- admitted absent compelling reasons to allow
torneys have clearly specified exactly what them, and objections not stated in the pretrial
facts are in dispute. The pretrial order pro- order are deemed waived.
vides an incentive for the attorneys to do so, ■ Designation of deposition testimony. Recall
since the judge may refuse to allow presenta- that when a witness cannot testify in person,
tion of evidence on issues not specified in the it is sometimes permissible to read the per-
pretrial order. son’s deposition testimony at trial; see FRCP,
■ Contested and uncontested issues of law. Here, the Rule 32(a)(3). Discovery depositions often
parties list any legal issues that have not yet cover a great deal of ground beyond the testi-
been resolved. Normally, if the attorneys have mony to be used at trial. We do not read entire
done their jobs, any important issues relating to depositions to the jury, only the parts that are
the claims and defenses should already have pertinent to issues being tried. It is common
been raised by motion long before trial. Often, to require parties who intend to offer deposi-
however, the intensity of trial preparation tion testimony at trial to specify in the pretrial
smokes out issues that have gone unnoticed. If order which pages of which depositions they
the attorneys are able to agree on how to resolve intend to read. As with exhibits, the opposing
an issue, it is listed as uncontested; otherwise, it party is often required to designate any ob-
is contested and the judge will sooner or later jections to the testimony specified.
have to decide which side is right. ■ Pending motions. The pretrial order may in-
■ Status of parties. Some courts require the preclude a list of all motions that have been
trial order to indicate whether there are any made and are not yet decided. This allows the
parties who have been named as defendants judge to be sure that all necessary rulings
or third-party defendants who have not been have been made by the time the trial begins.
served, and whether there are any unnamed ■ Trial schedule and limitations. Often, the pre-
parties who need to be included in the suit. trial order will recite the estimated length of
(Under some circumstances, failure to include the trial, and any limitations that the judge has
a necessary party can result in a judgment that imposed or that the attorneys have agreed to.
is unenforceable. Including information about By long-standing tradition, trials in the Ameri-
party status in the pretrial order allows the can system have been allowed to continue for
judge to spot joinder-related problems before as long as the parties could find admissible ev-
everyone spends tens or hundreds of thou- idence to put on (which could sometimes be a
sands of dollars on a useless trial.) very long time indeed). Increasingly, judges
■ List of witnesses. In modern civil litigation, are setting limits by allowing only a specified
there are no surprise witnesses. We have al- number of days for each side’s case, limiting
ready seen that Rule 26(a)(3) requires disclo- the number of experts allowed to testify, and
sure of the names and addresses of all wit- disallowing repetitive testimony.
nesses at least 30 days before trial. The The importance of careful attention to detail in
pretrial order sets forth each side’s final wit- drafting a pretrial order cannot be overstated. The
ness list; witnesses not listed in the pretrial pretrial order literally dictates the issues to be tried
order cannot be called—period—unless the [see FRCP Rule 16(e)], in effect taking the place of the
judge can be persuaded that the omission complaint and answer. Claims left out of the pretrial
was somehow justified (don’t bet on it). order are likely to be gone forever, so it is natural to
■ List of exhibits. A great deal of trial time can be err on the side of completeness. It is no wonder that
wasted if the questioning has to be stopped trial attorneys sometimes spend days writing drafts
every few minutes while attorneys look for ex- and negotiating language, or that pretrial orders in
hibits or argue about their admissibility. There- complex cases are sometimes hundreds of pages long.
fore, most courts have engineered their rules
so as to ensure that all possible exhibit-related
tasks are done before trial (see Task 6). In the
Your Local Notes
pretrial order, each litigant is typically required
to include a formal list showing each exhibit to _________________________________________________
be offered, and the opposing party is to state
_________________________________________________
what, if any, objections will be made to each.
Pretrial order rules usually provide that ex-
Preparing the Closing Argument ment, we are not supposed to argue (although we
Task 3 and Opening Statement would not be very good trial lawyers if we didn’t use
the opening statement as a persuasive tool to the ex-
Only a licensed attorney may present a case to the tent possible). The opening statement is (theoreti-
jury, and attorneys usually compose their own jury cally) confined to telling the jury what we expect the
arguments. A paralegal who is assisting in trial evidence to be. How far we can go beyond the sterile
preparation may be able to make helpful sugges- confines of the evidence depends on the judge. Most
tions about points to be included in jury arguments, attorneys would write the opening statement last, af-
and to serve as a sounding board for rehearsals, but ter thoroughly mapping out the presentation of wit-
is unlikely to be asked to write an argument. nesses and exhibits. One thing that we want to avoid
Why, then, are we taking up space talking about at all costs is promising evidence in the opening
jury arguments in a textbook for paralegals? Be- statement that we then never deliver.
cause many attorneys consider that the best way to
prepare a case for trial is to begin with the closing
argument. That is, we first decide what we want to
say to the jury in closing argument, then we organize
Task 4 Task 4 “Voir Dire” Questions
the witnesses and exhibits so as to provide evidence
to support that argument. It is important to keep The jury selection process begins with a roomful of
this perspective in mind when we prepare the rest of prospective jurors (also called the venire mem-
the presentation for trial. In the end, what matters is bers) and, by a process of elimination, we arrive at
persuading the jury that rendering a verdict for our a jury panel of (typically, in a federal civil case) be-
client is the fair thing to do. We can best do that by tween six and twelve jurors and one or more alter-
stressing a few simple and compelling themes, not nates. The exact procedure by which this is accom-
by getting bogged down in a morass of technical de- plished is up to the individual judge, but always
tail (unless, of course, we have a poor case on the involves some kind of voir dire questioning. FRCP,
merits, and prefer to leave the jury confused). Rule 47(a), provides:
No doubt there are as many opinions about how
Examination of Jurors. The court may
best to prepare and deliver a closing argument as permit the parties or their attorneys to conduct
there are trial attorneys. One of our favorite sources the examination of prospective jurors or may
for guidance on the subject, and a book that we itself conduct the examination. In the latter
highly recommend, is How to Argue and Win Every event, the court shall permit the parties or their
Time, written by Gerry Spence, an attorney who has attorneys to supplement the examination by
achieved spectacular successes in a series of highly such further inquiry as it deems proper or shall
publicized trials, criminal and civil. Our other rec- itself submit to the prospective jurors such
ommendation for anyone who wants to learn what additional questions of the parties or their
distinguishes an effective argument from an ineffec- attorneys as it deems proper.
tive one is to go to the courthouse and watch some Voir dire questioning is aimed at getting infor-
trial attorneys in action. mation about each juror. This information has sev-
In the closing argument, we are free (mostly) to eral purposes:
say anything that we think will persuade the jury to
arrive at the desired verdict. We can talk about what ■ Identifying prospective jurors who should be re-
the evidence has shown, of course, but we can also moved for cause. Prospective jurors who have
tell stories, we can argue by analogy, we can draw a conflict of interest, or who admit to being
logical inferences from the evidence, we can appeal biased against one of the litigants, or who be-
to the jurors’ common sense and general knowl- cause of strongly held beliefs are unable to
edge about life. There are some limits, of course: follow the judge’s instructions are not quali-
Usually, we cannot state or imply that the defendant fied to serve and will be excused. Voir dire
has insurance. We cannot state our own opinions or questioning helps identify those prospective
beliefs (we can say “Mr. X lied to you,” but not “I jurors.
know Mr. X lied to you”). And, in most courts, the ■ Allowing the litigants to use their peremptory
judge will not allow us to ask the jurors to put them- challenges effectively. Plaintiff and defendant
selves in the place of the plaintiff or victim (i.e., will each be allotted a specified number of
“How much would someone have to pay you to give “strikes” or peremptory challenges, which
up the use of your legs for the rest of your life?”). can be used to remove jurors deemed unfa-
Opening statements, by contrast, are much more vorable (as long as racial motivations are not
limited in permissible scope. In an opening state- involved). Obviously, to assess which jurors
are least likely to favor our case, we need in- What kinds of questions should we submit? The
formation about each juror’s background and answer depends on the case, and on the judge. In gen-
views—information that comes from voir dire eral, we would like to know as much about each juror
questioning. as the judge will allow us to find out. There are basi-
■ Helping the attorneys to focus their trial pre- cally four possible sources of information about jurors:
sentation. To tailor our presentation and 1. The jury questionnaire. As the order just quoted
make it as persuasive as possible to the audi- implies, most courts today require each
ence that we have—the jurors—we need as prospective juror to fill out a questionnaire. A
much information as we can get about each few typical questions:
juror’s likely opinions and biases.
■ What is your occupation?
Traditionally, the attorneys were allowed to ques- ■ Are you married? Do you have children?
tion the jurors individually, one on one, about What does your wife/husband do? What do
nearly any subject matter that could conceivably your children do?
have a bearing on the juror’s qualifications. In
■ What is your educational background?
courts that allow open voir dire—some state courts
still do—attorneys have developed into an art form ■ Do you have any legal training?
the practice of asking voir dire questions that are re- ■ Do you or any of your family members work
ally thinly veiled arguments on the merits (i.e., “If in law enforcement?
the evidence showed that defendant was falling ■ Have you ever sued anyone or been sued
down drunk when he ran over my client in a cross- yourself? What was the case about and how
walk while running a red light, do you have any be- did it turn out?
liefs that would prevent you from awarding punitive
■ Have you ever sat on a jury before? What was
damages against him?).
Most federal judges today place tight limits on the case about and how did it turn out?
the kinds of questions that can be asked in voir dire, 2. The judge’s general voir dire questions. Usually,
and usually it is the judge, not the attorneys, who the jurors fill out the jury questionnaire before
asks the questions. Attorneys submit their pro- they are assigned to a particular case. After
posed voir dire questions in advance, and the judge they are in the assigned courtroom and the at-
decides which, if any, will be asked. Needless to say, torneys and parties are present, the judge usu-
argumentative or slanted voir dire questions are un- ally asks a series of general voir dire questions
likely to pass muster. that are used in every case and directed to the
Each judge sets her own procedure for submit- panel as a whole. These are mainly aimed at
ting voir dire questions and for conducting voir dire discovering any reasons why a juror might
questioning. Some federal judges publish their pro- need to be disqualified or excused, and typi-
cedures in “judge-specific” rules or orders; you can cally include questions such as these:
find examples on the Internet sites of the busier ■ Are any of you acquainted with any of the par-
metropolitan districts such as the Southern District ties or attorneys?
of New York or the Northern District of California
■ Do any of you have any disabilities or med-
(see www.uscourts.gov and follow links). The fol-
lowing provision, taken from the Standing Order for ical problems that would prevent you from
Pre-Trial Preparation of Judge Charles R. Breyer of serving?
the U.S. District Court for the Northern District of ■ Do you have any financial interest in the suit
California, is typical (see www.cand.uscourts.gov (for example, a juror might be a shareholder
and follow links): in a corporation that is a party to the suit).
■ Do any of you have any moral or philosophi-
The attached voir dire questionnaire will be
given to the venire members, and copies of the cal beliefs that would prevent you from ren-
responses will be made available to counsel at dering a fair and impartial verdict?
the beginning of voir dire. Counsel should 3. Specific voir dire questions submitted or asked by
submit a set of additional requested voir dire, to
the attorneys. Most of the general information
be posed by the Court, to which they have
agreed at the pretrial meeting. Any voir dire that we need about each juror will come from
questions on which counsel cannot agree shall the questionnaire. Therefore, our main pur-
be submitted separately. Counsel will be pose in submitting our own voir dire questions
allowed brief follow-up voir dire after the is to try to get specific information that is use-
Court’s questioning. ful in the context of our particular case. For ex-
ample, in our Martin v. Collins hypo, we might example, that the cause of action for battery has
submit questions such as these: four elements: (1) an act by defendant, that is (2) in-
■ Do you own a hand gun? tentional, (3) causing harmful or offensive contact
with plaintiff and (4) damages proximately caused
■ Have you ever been assaulted?
by the act. The question now is, how does the jury
■ Do you believe it is possible for someone to know whether plaintiff has established all of the ele-
be so traumatized by an assault that psychi- ments of a cause of action? How does a juror know
atric treatment would be needed? what the elements of battery are, for example?
■ Have you ever worked in a hotel? It is up to the judge to instruct the jury on the
law. Among other things, that includes, in a battery
4. Outside sources. The three sources of informa-
case, telling the jury what are the elements of the
tion we have mentioned so far are part of the
tort of battery. The judge gives the instructions ver-
formal jury selection process provided by the
bally, usually after the attorneys have made their
court system. What about going outside that
closing arguments.
system for information? Where the importance
How does the judge know what to say? Does the
of the case justifies the expense, there is al-
judge think up the instructions as the need arises,
ways the possibility of enlisting the assistance
drawing on her own knowledge of the law? No. As
of investigators or jury consultants. Direct out-
you might imagine, small differences in the wording
of-court contact with jurors or their families is,
of jury instructions can have a big impact on the
of course, a serious ethical breach. However,
outcome of the case. A wrong word or two, and the
there is nothing to prevent gathering informa-
losing party will appeal, and win the appeal. The
tion that is in the public domain. Often, a sim-
rules therefore place the burden on the litigants to
ple Internet search will turn up an amazing
submit any desired instructions in writing. The
amount of information about a person. Another
judge merely passes on each proposed instruction
tactic that some jury consultants recommend
and decides to give it, not give it, or give it after first
is to have an investigator do “drive-bys” of ju-
modifying the wording. Then, when the time comes
rors’ homes, to note the type of neighborhood,
to instruct the jury, the judge simply reads the in-
presence of toys, and other clues to the jurors’
structions that she has approved.
personality. Investigating jurors can raise
The procedure for submitting proposed jury in-
prickly ethical issues and also has the potential
to alienate jurors should they become aware of structions depends on the rules and customs of
it, so activities of this kind should never be un- each court. FRCP, Rule 51, merely provides:
dertaken without the express approval of your At the close of the evidence or at such earlier
supervising attorney. time during the trial as the court reasonably
directs, any party may file written requests that
How are proposed voir dire questions to be sub- the court instruct the jury on the law as set forth
mitted? The procedure depends on the rules and in the requests. The court shall inform counsel of
customs of the court. Sometimes, the pretrial state- its proposed action upon the requests prior to
ment or order includes a section for proposed voir their arguments to the jury. . . .
dire questions. In many courts, it is up to the indi-
vidual judge to decide how he wants voir dire ques- To prepare and submit proposed jury instructions
tions submitted. for a given case, we need to determine (1) what sub-
jects we need instructions on, (2) what each in-
struction should say, and (3) what the procedure is
Your Local Notes
for submitting them.
_________________________________________________
_________________________________________________
Deciding What Instructions Are Needed—Get-
ting the jury instructions right is important, not so
much because of the effect that the instructions will
have on the jury’s decision (debatable, in the view
of many trial lawyers), but because a correct set of
Task 5 Jury Instructions
jury instructions is essential for the verdict to be
sustained on appeal. Suppose, for example, plaintiff
We have seen in previous workshops (see especially is asserting a cause of action for battery, and the
Workshop 1) that for plaintiff to win a lawsuit, plain- judge gives a jury instruction that leaves out one of
tiff must offer evidence establishing each of the ele- the four required elements. Plaintiff wins a verdict.
ments of one or more causes of action. We saw, for The likely result? Defendant appeals, and the court
of appeals automatically reverses. It does not mat-

Your Local Notes
ter that jury might have found for plaintiff even if
the instruction had been correct (there is no way to _________________________________________________
know, of course)—the case will have to be retried _________________________________________________
from the beginning.
In principle, if we represent a plaintiff, we need
a jury instruction on each cause of action that we
Even if there are no model jury instructions de-
intend to submit to the jury. If, as in our hypo, we
signed for use in the courts of your locality, the model
are suing for assault, battery, and negligence, we
instructions from other jurisdictions provide a good
need instructions covering the elements of each of
place to start when drafting your own instructions.
those causes of action. If we represent a defendant,
Often, when you need an instruction on a given point,
we need a jury instruction covering each affirma-
you can find a model instruction from another court
tive defense that we intend to present. We may also
on the same issue and modify it as appropriate to fit
need instructions on other legal principles, such as
your circumstances. Another place to look for guid-
burden of proof, and the weight to be given certain
ance is the appellate case law; if you do a Westlaw
types of evidence. The judge will also routinely give
search for your topic issue and use the phrase “jury
a series of instructions laying out ground rules for
instruction” you will often find reported decisions in
the jury deliberations and telling the jury how to
which jury instructions used in the trial court are
evaluate the evidence.
quoted and analyzed. If you simply cannot find an in-
To make a list of the jury instructions that we
struction on the topic that you need, the only re-
may need in a given case, we recommend a two-step
maining alternative is to draft one yourself, based on
process: (1) Begin with your issues outline, and de-
your research and knowledge of the law on the issue
cide what instructions will be needed to support
that the instruction addresses. Try to imitate the
the causes of action and/or defenses that you are
style and tone of the approved instructions, and try
asserting and then (2) consult one or more sets of
to word the instructions succinctly and impartially.
model or recommended jury instructions for addi-
As the Trial Court Guidelines for the U.S. District
tional ideas of topics to be covered.
Court for the District of Oregon wisely suggest (see
Content of Instructions—Ideally, we would like www.uscourts.gov/guidelin.html): “Remember less is
the court’s jury instructions to express the law ac- better than more and ‘advocacy’ instructions will be
curately—to avoid reversal on appeal—but be rejected.”
phrased in a way that favors our case as much as
possible. The problem, of course, is that our oppo- Your Local Notes
nent would also like the wording slanted in his fa-
_________________________________________________
vor, and the resulting tug-of-war over seemingly in-
consequential differences in phraseology takes up _________________________________________________
valuable trial time.
One solution widely embraced by the courts is
to adopt model or recommended instructions cov-
ering all of the commonly litigated issues. These Procedure for Submitting Jury Instructions—
instructions are typically written by committees of Considerable local variation is seen in the proce-
judges and legal scholars and are designed to be dure for submitting proposed jury instructions.
accurate, impartial, and worded in everyday lan- Some courts require submission of proposed in-
guage that the average juror can understand. For structions as early as 10 days or more before trial;
example, the U.S. Court of Appeals for the Ninth others accept them even after both sides have put
Circuit publishes a Manual of Model Civil Jury In- on their evidence. In some courts, proposed jury in-
structions (also available online at www.ce9.us- structions are filed; in others, they are given to the
courts.gov). In any lawsuit pending in any U.S. dis- judge. Your instructor will apprise you of the pre-
trict court located within the Ninth Circuit, if the ferred procedure in the courts of your locality, and
Manual of Model Civil Jury Instructions includes an provide citations to the applicable local rules, if
instruction on a given topic, that is the instruction any. By way of example, many U.S. district courts
the judge will use, absent compelling reasons to do follow procedures similar to those described in Lo-
otherwise. Your instructor will inform you of cal Rule 51.1 of the U.S. District Court for the Dis-
whether there are any sets of model or recom- trict of Alaska:
mended jury instructions for use in the courts of Except as the court may otherwise direct,
your locality. the parties shall file their requested jury
instructions 10 days before trial. The requested the document, then show the document to the wit-
instructions shall be numbered consecutively, ness and ask the witness to identify it, then ask any
shall indicate which party requests them, and required foundation questions, then offer the docu-
shall embrace but one subject. The principle of ment in evidence. The opposing attorney would
law embraced in any requested instruction shall voice any objections, and the judge would decide
not be repeated in subsequent requests. Each whether to admit the document in evidence. Only
request shall state what form it copies or on
after being admitted by the judge could the docu-
what authorities it relies. Requests that do not
comply with the terms of this rule will not be ment be used as evidence.
considered by the court. Each side may also Today, with copying machines and computers
submit a set of instructions on a computer disk spewing out documents in ever greater volume,
in a computer language compatible with the most courts have abandoned the traditional proce-
court’s computer system. dure as too time consuming. By requiring advance
disclosure of exhibits and advance assertion of ob-
Your Local Notes jections, there is rarely any need for the trial to be
delayed over issues of admissibility. Such issues are
_________________________________________________
decided in advance, and some judges enter a ruling
_________________________________________________ receiving all of the approved exhibits into evidence
at once in advance, avoiding the need to waste time
asking for admission in evidence exhibit by exhibit.
And to facilitate the listing of exhibits and objec-
tions and avoid taking up trial time, most courts
Task 6 Marking and Preparing Exhibits now place the burden on the litigants to mark their
own exhibits before the trial begins. The exact
Many lawsuits arise directly from disputes over means by which this is done depends on the judge’s
documents—contracts, wills, patents, tax returns, individual preferences. Some courts provide labels
corporate securities registrations, conveyances of that contain blank spaces for the exhibit number
property. Many other cases involve events—acci- and for the clerk’s notation of whether the exhibit
dents, hospital stays, construction projects—that was admitted into evidence or not.
generate records. And all but the most trivial law- The numbering system used is also up to the in-
suits require the use of documents to prove dam- dividual judge. Many courts cling to the tradition of
ages (receipts and records of expenditures). It is in- using numbers for plaintiff’s exhibits and letters of
evitable that documents play an important role in the alphabet for defendant’s exhibits. Where appro-
modern trials. priate, the parties can stipulate (or, if necessary, file
We have already seen that the discovery rules, a motion) to use some other numbering system. In
disclosure rules, and pretrial order procedure in complex cases involving large quantities of docu-
federal court work together to force each litigant to ments and numerous depositions (each with ex-
list, in advance of trial, the specific documents to be hibits), it is usually preferable to agree on a unified
used as exhibits, and to disclose the list, and copies numbering system in the early stages of discovery
of the documents, to the opposing party. In most and stick to it at trial.
federal courts, each party is also required to spec- Your instructor will inform you of the prefer-
ify any objections to the opposing party’s exhibits. ences of the courts of your locality regarding the
The task that remains is the physical document premarking of exhibits, and direct you to any ap-
handling for the trial (a task often delegated to para- plicable local rules. It is usually also worth checking
legals): the marking, indexing, and organizing of the with the judge’s secretary or clerk to see if the judge
exhibits and copies. When an attorney wishes to has any particular requirements of his own. By way
have a witness refer to a document while testifying, of example, here is Local Rule 39.1(b) of the U.S. Dis-
it is necessary for the document to be marked with trict Court for the Northern District of Ohio, which
an exhibit number. Exhibits are marked in order to follows the typical pattern:
create an unambiguous record. If a witness refers to
(b) Marking of Exhibits. All exhibits must
a document by its exhibit number, and the marked
bear the official case number and shall be
exhibit is included in the record, an appellate judge marked before trial with official exhibit stickers
reading a transcript of the trial can be sure that she which are available upon request from the
is looking at the same document. Clerk. The plaintiff shall mark exhibits with
Traditionally, exhibits were marked by the numbers and the defendant shall mark exhibits
judge’s clerk at the time of their use. To use an ex- with letters, unless otherwise ordered by the
hibit, the attorney would first ask the clerk to mark Court. Joint exhibits shall be marked with
numbers. If there are multiple defendants, it aloud. To facilitate this, most trial attorneys
letters shall be used followed by the party’s last have blowups made, which are placed on an
name. If the defendant has more than 26 easel before the jury during the pertinent tes-
exhibits, double letters shall be used. timony. It is up to each attorney to bring to
What happens to the exhibits after they are court any desired blowups. Blowups can be
marked? During trial, the judge’s clerk (who sits at a made professionally by a graphics company,
table below the bench in the courtroom) keeps them. or, increasingly as computer publishing tech-
In most federal courts, when an attorney wants a wit- nology improves, in house.
ness to refer to an exhibit, she directs the request to ■ Drawing tablet. Most courts provide a draw-
the judge (i.e., “Your honor, may the witness be ing pad on an easel for use by attorneys dur-
shown Exhibit A?”). The bailiff then gets the exhibit ing argument and for use by witnesses to il-
from the clerk and hands it to the witness; the attor- lustrate points made while testifying. Many
ney is required to remain at the lectern and may not also provide a blackboard or whiteboard. (It
approach the witness without the judge’s permission. is sometimes desirable to preserve a record
Which brings up the question of what does the at- of what was displayed, a purpose for which a
torney use, if the witness has the original exhibit? Ob- blackboard or whiteboard is not adequate.)
viously, there must be a complete and well-indexed ■ Television and display equipment for video
set of copies of all exhibits—our own, and our oppo- recordings. Videos have become an essential
nent’s—for the attorney to refer to while questioning presentation tool in many lawsuits. Particu-
the witness. Keeping these in order, locating particularly in cases involving serious injury, videos
lar passages on a second’s notice, and anticipating depicting a “day in the life” of the victim are
which exhibits will be needed next are all important often very effective. Animated reconstruc-
jobs for paralegals who assist at trial. tions of accidents are growing in popularity
It may also be necessary to make extra copies of as a way of letting an expert witness “show”
exhibits for the jury. Court rules regarding what mate- the jury the reconstructed events instead of
rials may be given to the jury during trial and during merely describing them. A growing number of
deliberations vary greatly. At a minimum, the marked depositions are being recorded on video, and
exhibits will be made available to the jury during de- some cases involve evidence in the form of
liberations. Some courts go much further and allow video recordings (i.e., surveillance tapes).
the attorneys to furnish each juror with a notebook Most courts provide equipment with which
containing copies of important exhibits, to be used to display standard VHS videocassettes (but
during trial. Within reasonable limits, the degree of lat- do not assume equipment will be available
itude permitted is up to the individual judge. without checking).
■ Sound recording and playback equipment.
Your Local Notes Some cases involve tape-recorded evidence
_________________________________________________ or depositions. Not all courts provide play-
back equipment, so check in advance or plan
_________________________________________________
to bring your own.
■ Specialized viewing equipment. If specialized
equipment will be needed (e.g., x-ray viewing
box, special projectors, etc.), it is up to the
Arranging for Demonstrative party to supply it and to obtain the judge’s
Task 7 Evidence, Visual Aids, and Other permission to bring it in to the courtroom.
Props ■ Computer equipment. There are many poten-
tial uses for computer technology in the
The exhibits that we have been discussing so far are courtroom, and a few courts have already im-
paper documents that comprise part of the formal plemented “high-tech” courtrooms on an ex-
evidence in the lawsuit. Most successful trial attor- perimental basis; see the sidebar for a de-
neys also make heavy use of a variety of visual aids. scription of one such initiative. In most
Here is a list of some of the items used, together with courts, a litigant desiring computer equip-
brief discussion of the preparatory work required: ment in the courtroom must still, today, pro-
■ Blowups of exhibits. An important passage in vide the equipment and obtain the judge’s
a document will make a much greater im- permission to bring it in and use it. Since
pression on jurors if they can see it and read most court systems have already embraced
it for themselves while the witness is reading computerized record keeping, and judges are
SIDEBAR
The Computerized Courtroom of the Future
The potential benefits of computer technology in timony can immediately be flagged with an is-
the courtroom can perhaps be best appreciated by see- sue code. Then if the attorney needs to see
ing a computerized courtroom in action. One U.S. dis- everything that any witness has said about a
trict court, the District of Arizona, has implemented a particular point, it is a simple matter to search
“computer-integrated courtroom” demonstration for the appropriate issue code. The system also
project, an actual working courtroom equipped with supports real-time note taking—the attorneys
state-of-the-art technology. The courtroom has its and paralegals can enter notes about testi-
own computer system, with display terminals on the mony as the testimony is being given.
judge’s bench and the attorney tables, and monitors ■ Evidence presentation system. The computer-
for viewing by the jury. Here are a few of the services integrated courtroom includes a versatile dis-
that the system provides: play system that is linked to the courtroom
■ Real-time court reporting. The court reporter’s computer system. The display system accom-
stenographic machine is linked directly to the modates a variety of inputs—regular video-
courtroom computer system. The trial tran- tape, paper documents, photographs, over-
script is available continuously and instanta- head transparencies, slides—and displays them
neously. There is never a need to ask the court on monitors so that the judge, the attorneys,
reporter to read back a question or answer—all and each juror can all view exhibits clearly and
testimony in the case is instantly accessible. simultaneously. (The judge can, of course, turn
When an attorney objects to a question, the off the jury’s view.) This system makes testimony
judge has the benefit of being able to see the ex- about document exhibits much easier for the
act wording of the question on the screen be- jury to follow, since jurors can see the document
fore making a ruling. When an attorney is ex- while the witness is talking about it instead of
amining a witness and needs to refer to earlier having to wait until the witness finishes and the
testimony, the desired passages can readily be paper document is circulated to the jury. The
brought up on the screen—no need to flip system also facilitates presentation of videos,
through stacks of transcripts looking for the animations, and other multimedia presenta-
right question and answer. tions that can often communicate ideas to the
jury more effectively than dry testimony.
■ Litigation support in the courtroom. We have
already seen that computerized litigation sup- ■ Availability of other computer resources. Since
port databases are extensively used to organize the computer-integrated courtroom includes
and index discovery documents and deposi- computer terminals on each attorney table, the
tions in cases involving large quantities of doc- attorneys can take advantage of the other fa-
uments. In the computer-integrated courtroom, miliar software tools that have become so im-
the attorneys’ litigation support databases can portant in the modern law practice: computer-
be tied directly into the courtroom computer ized legal research through Westlaw, Internet
system so that they can be used during trial. access, electronic mail, word processing, and
The system also allows the attorneys (or their scheduling.
trial paralegals) to key in codes for particular For more details about the computer-
issues on the fly—if a witness makes a state- integrated courtroom, see the District of Ari-
ment that is pertinent to a given issue, the tes- zona’s web site at www.azd.uscourts.gov/cic.
becoming increasingly comfortable with

Your Local Notes
technology through their own use of comput-
ers for word processing, legal research, and _________________________________________________
scheduling, it will not be long before com-
_________________________________________________
puter technology becomes as commonplace
in the courtroom as it is everywhere else.
missible, and—this is the important part—to pro-

Task 8 Motions “in Limine”
hibit Shannon’s attorney from asking any questions
about it or otherwise mentioning it. Then, assuming
Through discovery, disclosure, and the process of the judge grants the motion, if Shannon’s attorney
preparing a pretrial statement or order, we can usu- should be foolish enough to ask the question any-
ally foresee with reasonable accuracy the main way (Allen Porter, being a reputable attorney, would
themes that our opponent will use to try to make not do so) he risks a mistrial and a fine for contempt.
points with the jury. As long as those themes are Motions in limine are a routine part of trial prepa-
based on proper evidence, our opponent has a right ration in the average federal trial. First, an effort
to assert them, but it often happens that some of a should be made to outline, in as much detail as pos-
party’s best ammunition involves evidence that is sible, the opposing party’s expected trial presenta-
technically inadmissible. tion. Then, identify any subject matter that is both
The fact that the answer to a question is inad- objectionable and sufficiently damaging that we can-
missible does not, of course, stop our opponent from not willingly allow the jury to hear about it. (The
asking the question in the first place—it is up to us to judge’s attention is a limited resource, and we do not
object. Unfortunately, in many situations, the oppos- waste it filing motions to exclude evidence that is
ing attorney can get an inadmissible idea across to technically inadmissible but does not really hurt us.)
the jury merely by asking the right question. We can Once we have identified each issue requiring a mo-
object, and the judge can sustain the objection, but tion in limine, we prepare the motions and file them.
the damage is done, and there is no way to “un-ring Deadlines and other procedural requirements
the bell.” An example will make the problem clearer. for motions in limine in federal district court are
typically left up to the individual judge, and set
Example. Suppose, in our hypo, that forth in “judge-specific” rules, standing orders, or in
Shannon’s attorney assigns Chuck, the the trial setting minute entry. Many federal district
paralegal, to run a background check on Arnie judges require the parties to exchange motions in
Trevayne. Chuck discovers that 5 years ago limine before filing them and to attempt to reach
Arnie, while still a juvenile, was caught selling
agreement. The deadline for filing motions in limine
illegal drugs and was confined in a juvenile
correctional institution for 14 months. is typically 7 or 15 days before the start of trial, and
Naturally, Shannon’s attorney would love to the judge usually rules on the motions immediately
make the jury aware of this fact because the before the trial begins.
jury is likely to mistrust any testimony by a
convicted drug dealer. However, in federal Your Local Notes
court, juvenile offenses are generally not
admissible to impeach a witness [see Rule _________________________________________________
609(d), Federal Rules of Evidence]. _________________________________________________
Now suppose that, while cross-examining
Arnie, Shannon’s attorney asks the question,
“Isn’t it a fact that before you worked for Banbury
Park Hotel you spent fourteen months in a
Preparing the Presentation
correctional institution for dealing illegal drugs?” Task 9 of Testimony
Park Hotels’ attorney objects, the judge sustains
the objection—and the jurors understand
perfectly well that Arnie is a convicted drug Most of the time in a trial is spent questioning wit-
dealer but because of some legal technicality nesses. The presentation and questioning may
they are not supposed to know about it. seem spontaneous, but it is not. Effective trial pre-
sentations are usually scripted, rehearsed, and
What can Park Hotels’ attorney do to prevent this choreographed in fine detail. Some of the typical
outcome? She can file a motion in limine. In limine preparation steps are discussed next.
means “preliminarily” or “at the beginning.” A mo-
tion in limine is a motion made (usually) before the Planning Which Witnesses to Call and in
trial begins in anticipation of an issue that is ex- What Order—The goal of a jury trial is to sell our
pected to come up during trial. The usual purpose of client’s case to the jurors. To do that, we need to
a motion in limine is to get an advance ruling to pre- present the facts in such a way that the jurors can
vent an opposing party from bringing up some inad- follow and understand the main themes of our case
missible matter. In the example, Park Hotels’ attor- without becoming bored, offended, or confused.
ney could file a motion in limine asking the judge to The standard format of a trial makes this quite diffi-
rule in advance that Arnie’s juvenile offense is inad- cult—we must present one witness at a time, and
finish with each witness before moving to the next. likely to be needed. As the trial progresses, we
We cannot question several witnesses at the same should be able to provide better and better
time, or question a witness on one topic and have guesses. To accommodate the schedules of doctors
them come back later when we are ready for an- and other expert witnesses, judges will often allow
other topic. Worse yet, each time we finish with a examination of another witness to be interrupted
witness, before we can get on with the next one we so that the expert can be taken out of order at a pre-
will have to wait hours or days while our opponent arranged time. As for the risk of nonattendance, if
cross-examines. This leads to an inherently dis- there is any doubt about the witness’s reliability, we
jointed presentation. Trial attorneys often describe would always issue a subpoena, but alert the wit-
a trial as being like putting together a jigsaw puzzle: ness to expect it and explain that it is a technicality
Each witness contributes one or more pieces, but a required of us by the rules.
clear picture emerges only at the end. It is easy to
Preparing the Testimony—To what extent
see why the choice of witnesses and the sequence
should we script a witness’s testimony in advance?
of testimony can be critical.
On this question, trial lawyers’ views differ. Some
Formulating the overall plan is, of course, the
would go so far as to write out the questions and
job of the lead trial attorney (but paralegals, who
expected answers verbatim; others use at most a
have often had much more direct contact with the
list of topics to be covered, and make up the ques-
witnesses, often have valuable input to contribute).
tions as they go along. There is a trade-off here: On
Scheduling the Witnesses—Making sure that wit- one hand, testimony that is too well planned may
nesses are present and ready to testify at the right come across as insincere, staged rather than gen-
times is another critically important behind-the- uine. There is also the risk that the overprepared
scenes task that is often assigned to paralegals, one trial lawyer may become too attached to her game
often requiring considerable skill, judgment,and plan and fail to notice opportunities to take the tes-
diplomacy. It is rarely possible to predict exactly timony in unplanned directions. At the other ex-
when a witness will be needed, because there is no treme is the trial lawyer who “shoots from the hip”
way to know how long examination of preceding entirely. Here, the risk is that he will forget to cover
witnesses will take. Yet some of the most important some important point, or that the witness will blurt
witnesses—medical experts are a notable exam- some damaging answer that could have been
ple—will insist on knowing, perhaps weeks in ad- avoided had the attorney planned better.
vance, exactly when they will be called to testify. Our experience suggests that a compromise be-
Then there is the problem of whether we can de- tween the two extremes is best. In preparing the di-
pend on a witness’s promise to show up in court at rect examination of a friendly witness, we would do
the appointed time. If we protect ourselves with a the following:
subpoena, the witness may be offended (and testify 1. Prepare an outline or topic list, taking care to
accordingly), but if we do not and the witness fails include all of the main facts that we need to es-
to appear, we may be left with a gaping hole in our tablish through this witness’s testimony. On
case. And, there is the matter of waiting. In most tri- most points, the outline should not be too de-
als, the judge excludes all witnesses from the court- tailed; its main function is to serve as a check-
room except the witness who is testifying. (This is list, not a verbatim script.
done so that witnesses are not influenced by each
other’s testimony.) This means that witnesses wait- 2. In the outline, we may write out verbatim any
ing to testify must usually remain out in the hall, questions that need to be worded in a certain
with nowhere comfortable to sit, nothing to do, and way. Sometimes, for example, the law or rules
no clear indication of how long the wait will be—a governing one of the issues in our case may be
situation well calculated to make witnesses cranky worded in terms of a particular catch phrase
and, in the case of expert witnesses (especially doc- like “record of a regularly conducted activity”
tors), prompt a bill for hundreds of dollars per hour (see Rule 803(6), Federal Rules of Evidence),
for waiting time. and we want to be sure to use the exact phrase
There is no perfect formula that will guarantee in our question. In such a situation, we would
happy witnesses present when needed with no write out the question in advance.
waiting time, but there are a few general principles 3. In the outline, we include references (by both
that will help. The first is to explain the uncertain- number and brief description) to each exhibit
ties to the witnesses and keep them informed. Be- that will be shown to the witness in connec-
fore the trial begins, the best we may be able to do tion with each main point. Again, the purpose
is give each witness an estimate of the date he is is to provide a checklist with which the trial
attorney can rapidly verify that she has cov-

ered all of the exhibits on each point.
SIDEBAR
4. With at least the most important witnesses, we Ethics of Coaching Witnesses
would conduct a rehearsal of the testimony.
That is, we would put the witness “on the Is it proper to suggest how a witness should
stand” in a quiet conference room and go answer a question? How far can an attorney or
through our entire examination as if we were in paralegal go in scripting a witness’s testimony? The
court. This has several benefits: It allows the issue comes up routinely in preparing clients for
trial attorney to work the kinks out of the ques- their appearances as witnesses, and opportunities
tioning. It lets the witness know what questions also arise to give friendly nonparty witnesses advice
to expect. Most important, poorly considered on how to testify. There are two important consid-
answers can be discussed and, if appropriate, erations, one ethical and one practical, both lead-
reworded (but see the sidebar on the ethics of ing to approximately the same conclusion.
coaching witnesses). From an ethical standpoint, it is never appro-
Preparing to cross-examine an adverse witness priate to suggest that a witness testify in a manner
is fundamentally different from preparing direct ex- that the witness does not believe to be true. Apart
amination of a friendly witness. Obviously, there from being morally reprehensible, that sort of coach-
will be no opportunity to rehearse with the witness, ing has a high probability of exposure (all it takes is
although it is sometimes useful to rehearse by hav- for the witness to become unhappy with the lawyer
ing someone else act the part of the witness. More for some reason), and potentially leads to unpleas-
importantly, in direct examination, we want the wit- ant consequences like disbarment or, in an extreme
ness to do most of the talking, while in cross exam- case, criminal prosecution for suborning perjury.
ination we must maintain tight control, usually lim- On the other hand, a lawyer or paralegal has
iting the witness to saying “yes” or “no.” This makes an ethical obligation to present the best case possi-
it possible—and usually necessary—to plan cross- ble within the bounds of the law. Seen in that light,
examination in detail, listing the sequence of ques- it would be unethical not to help a client or friendly
tions or topics and the exhibits to be used in con- witness deliver his testimony in a more persuasive
nection with each. way, as long as the testimony remains truthful.
As a practical matter, the problem with exces-
Designating the Deposition Testimony—We sive or inept coaching is that it often makes the wit-
have seen that, when a witness cannot conveniently ness’s testimony seem insincere. If the witness uses
be brought in to testify at trial, it is sometimes per- words that seem not to fit the witness’s personality,
missible to use the witness’s deposition in lieu of or answers questions in an unnatural way, the jury
live testimony. The local rules of most U.S. district will distrust the testimony.
courts require the parties to designate the testi-
mony to be used in advance. For example, Local Trial attorneys differ in their views and prefer-
Rule 16.2 of the U.S. District Court for the District of ences. Our own stems from a general philosophical
Nebraska requires the parties to include a section view that our clients have the right to know every-
in the pretrial order listing “All depositions, an- thing about their cases that we can tell them. We
swers to interrogatories, and requests for admis- have already said that, with important friendly wit-
sions or portions thereof which are expected to be nesses and especially with clients, we would con-
offered in evidence by the plaintiff as part of the duct a dry run of the examination. If an answer has
plaintiff’s case-in-chief. . . .” harmful implications of which the witness is not
To do this, we identify which testimony we will aware, we think it is appropriate and useful to
use, and list the beginning and ending page and line point them out. We would not suggest the wording
numbers of the selected passages. This require- of an answer, however; we would let the witness
ment applies only to testimony to be used as a sub- rephrase the answer in his own words.
stitute for live testimony; we are not required to
designate testimony that we may use during cross-
examination to impeach a witness. Often, the rules
Your Local Notes
do require us, upon receiving our opponent’s desig-
nation, to indicate any objections that we may make _________________________________________________
to the designated testimony. We do this by listing
_________________________________________________
the page and line numbers of each objectionable
passage, together with the nature of the objection.
trial is by anticipating what papers may be needed

Task 10 Trial Brief/Trial Memoranda
at any point, and having them ready to hand.
As a way of locating the most important papers
Although most of the legal issues should be resolved quickly, most trial lawyers use a trial notebook. Tra-
by motion before the trial begins, it often happens ditionally, this consists of a loose-leaf binder with
that a few issues are left to be decided during the tabbed separators and an index. As computer tech-
trial. This may be because problems have been over- nology becomes more and more widespread, we are
looked, or because a party delays raising an issue for likely to see increasing substitution of laptop com-
strategic reasons. Increasingly, U.S. district courts puters, which can hold many more documents and
are adopting rules calling for the parties to prepare also facilitate searching.
memoranda in advance of trial arguing their posi- What goes into the trial notebook is partly a
tions on any issues that they anticipate arising. Local matter of personal preference, and partly deter-
Rule 16.1(f)(10) of the U.S. District Court for the mined by the document requirements of the partic-
Southern District of California is typical: ular case. Here are some of the items that many trial
lawyers would usually include:
Unless otherwise ordered, the parties shall,
not less than seven (7) calendar days prior to ■ An index or outline of the notebook’s contents.
the date on which the trial is scheduled to The purpose of a trial notebook is to facilitate
commence . . . [s]erve and file briefs of all rapid access to the most important papers.
significant disputed issues of law, including An index allows us to locate specific docu-
foreseeable procedural and evidentiary issues,
ments quickly.
setting forth briefly the party’s position and the
supporting arguments and authorities. . . . ■ An outline and schedule of the trial. Here we
list what is to happen on each trial day.
Rules requiring submission of memoranda for trial Among other things, the list should indicate
are less common in state court; your instructor will which witnesses are expected to testify each
apprise you of any such provisions applicable to day, in what order, and at what times, to the
your local courts. Even if not required by rule, how- extent that we can estimate these things.
ever, it is often advantageous to prepare short mem-
■ The pleadings. It is sometimes necessary to re-
oranda on anticipated issues. That way, we are in a
fer to the complaint or answer to determine
position to present a reasoned argument, backed
exactly what causes of action and defenses are
up by authority, should the occasion arise.
framed by the pleadings. (However, in most
There is another kind of trial brief or memo-
U.S. district courts, there is a pretrial state-
randa that is typically submitted only in nonjury tri-
ment or order that sets forth the issues to be
als. In trials to the court, the judge may allow or re-
tried, and that takes precedence over the
quire each party to submit a brief summarizing the
pleadings in controlling the course of the trial.
evidence and relating it to the causes of action and
Therefore, the pleadings themselves take on
defenses raised by the pleadings. Sometimes briefs
lesser importance in most federal trials.)
of this kind are submitted in lieu of oral closing ar-
guments. Trial briefs of this kind are typically writ- ■ The issues outline. The pretrial statement or
ten after the evidence has been presented, since it order is worded and organized to carry out
is difficult to summarize the evidence before the strategic objectives rather than to provide a
witnesses have testified. complete and concise listing of the causes of
action and defenses and their elements. We
Your Local Notes would always include in the trial notebook a
current, updated copy of our issues outline
_________________________________________________ (see Workshop 1).
_________________________________________________ ■ The pretrial statement or order. Since it is the
pretrial order that determines which issues
are fair game during the trial, it will be con-
sulted often and needs to be ready to hand.
Task 11 The Trial Notebook
■ A procedural history of the suit. By the time a
lawsuit goes to trial in federal court, the judge
A trial attorney putting on a typical federal civil will typically have made a number of rulings on
trial needs access—sometimes instantaneous ac- motions and in status conferences. When pro-
cess—to a huge variety of papers. One of the most cedural disputes arise during trial, it is impor-
important ways in which paralegals can be useful in tant to be able to analyze them in the context
of what has already been decided. It is there- nique to read from notes when delivering an
fore useful to include in the trial book a sum- opening statement or closing argument. Nev-
mary of all of the procedural events in the case, ertheless, good opening statements are pre-
giving the date of each and a short description. pared in advance, and it is helpful to be able
■ Minute entries. In this section, in chronologi- to review an outline or notes to fix the main
cal order, we include copies of any significant points firmly in mind before beginning.
minute entries, so that we are in a position to ■ Outline of direct examinations of favorable wit-
establish exactly what the judge’s ruling was nesses. Here we insert our outlines for the
on a particular point should the need arise. testimony of our own witnesses. See Task 9.
■ Voir dire questions and jury selection notes. ■ Outline of cross-examinations of opposing
Jury selection procedures vary greatly, so the party’s witnesses. Here we place our notes and
materials to be included in the trial notebook outlines for cross-examination. See Task 9.
depend on the situation and the lawyer’s pre- ■ Copies of principal exhibits. In most lawsuits,
ferred approach. If, as is common in federal there are a few documents that bear directly
district courts, the judge will be conducting on the claims and defenses and that we will
voir dire, then we need to have available our need to refer to frequently (for example, the
and our opponent’s proposed questions, to- contract in a breach of contract case). Except
gether with any argument notes and citations in the simplest of cases, we cannot include all
of authorities, so that we will be prepared of the exhibits in our trial notebook, but we
when the judge is ready to decide which voir can include a few of the most important.
dire questions to use. To the extent that the
■ Outline or draft of closing argument. Here we
court allows attorney-conducted voir dire, we
include the notes for the closing argument,
will need an outline or draft of the questions
together with some blank sheets on which to
we want to cover. We may also want to in-
jot ideas for points to be included in the ar-
clude other notes, checklists, or forms to use
gument as they occur to us during trial.
for keeping track of prospective jurors’ back-
ground information and answers to voir dire Obviously, in a complex case, there is no way in
questions. which we can fit all of the papers we have just de-
■ Jury instructions and supporting notes. We will scribed into a single notebook. One solution is to use
need both parties’ proposed jury instructions, several notebooks; another is to keep the materials
together with argument notes and supporting pertaining to each witness—outline of examination,
authorities, when the judge hears argument to exhibits, etc.—in a separate file folder. The point is
decide which instructions to give. Once the that there is a host of materials that needs to be avail-
judge has settled the instructions, we will re- able for nearly instantaneous retrieval during trial,
place this section with the set of instructions and it is essential to have some practical system for
that will actually be given. We will want these ac- managing them. Especially where the required mate-
cessible, especially when we prepare for closing rials are voluminous, the most important component
argument because we may want to quote from of this system may be a competent trial paralegal
the instructions while arguing to the jury. who is intimately familiar with all of the documents
and who has the judgment and training to anticipate
■ Notes, memoranda, and copies of important which ones will be needed at each point in the trial.
case law pertaining to legal issues expected to
arise during trial. To the extent that we can an-
Your Local Notes
ticipate disputes over the interpretation of pro-
cedural rules or over the admission of particu- _________________________________________________
lar evidence, we will try to research the _________________________________________________
pertinent legal issues in advance. When issues
come up during trial, the judge will usually
want to decide them immediately so as not to
delay the trial. Obviously, if we have done our Trial Preparation: Learning
research in advance and can access it quickly,
we will be in an advantageous position com- by Example
pared to an opponent who has not researched We now consider each of these eleven tasks in the
her side of the issue and is forced to improvise. context of our Martin v. Collins hypo, from the
■ Outline or draft of opening statement. Most standpoint of an attorney representing Shannon
trial lawyers would consider it poor tech- Martin. The lawsuit in our hypo was filed in the U.S.
District Court for the District of Arizona, so we be-

gin by reviewing the local rules of that court (avail-
Task 4 “Voir Dire” Questions
able on the Internet at www.azd.uscourts.gov). As
is typical, we find that the local rules do not give us The local rules of the District of Arizona are silent
very specific guidance on most of these tasks be- on the subject of voir dire, leaving jury selection
cause the usual practice is for each judge to desig- procedure up to each judge. We will assume that
nate his own requirements in each case. our assigned judge follows the prevalent practice of
requiring advance submission of voir dire ques-
tions, and that the judge, not the attorneys, will con-
Final Discovery Supplementation duct the questioning. We have already given a few
Task 1 and Disclosure sample voir dire questions in the instructions given
earlier.
The District of Arizona has not opted out of any of the
requirements of FRCP, Rules 26(a)(1)–(3). Rule
26(a)(3) therefore requires each side to disclose its Task 5 Jury Instructions
witnesses and exhibits at least 30 days before trial.
The judge may, of course, impose different deadlines.
Local Rule 2.16 governs the submission of proposed
jury instructions. It provides:
(a) Proposed instructions for the jury shall be
Task 2 Pretrial Statement or Order
presented to the Court at the opening of the
trial unless otherwise directed by the Court; but
The District of Arizona’s system for case tracking the Court, in its discretion, may at any time
appears in Local Rule 2.12. We will assume that Mar- prior to the opening of the argument, receive
additional requests for instructions on matters
tin v. Collins has been assigned to the standard
arising during the trial. The requested
track. Local Rule 2.12(b)(4)(B) calls for a schedul- instructions shall be properly entitled in the
ing conference within 180 days after the filing of the cause, distinctly state by which party
complaint, at which, among other things, the judge presented, and shall be prepared in all capital
is to set “dates for filing a joint proposed pretrial or- letters of even type size. They shall be
der and conducting a pretrial conference.” The rule numbered consecutively and contain not more
does not specify the contents of the pretrial order— than one (1) instruction per page. Each
it is up to the judge to do that—but most judges re- requested instruction shall be understandable,
quire some combination of the items discussed un- brief, impartial, free from argument, and shall
der Task 2 earlier. embrace but one (1) subject, and the principle
therein stated shall not be repeated in
subsequent requests.
....
Preparing the Closing Argument (c) All instructions requested of the Court
Task 3 and Opening Statement shall be accompanied by citations of authorities
supporting the proposition of law stated in such
We begin by checking the local rules to see if instructions.
there are any provisions governing opening state- (d) At the time of presenting the
instructions to the Court, a copy shall be
ments or jury arguments. We find that District of
served upon the other parties.
Arizona Local Rule 2.14 provides that the “open-
ing statement to the jury shall be confined to a From Local Rule 2.16(a), we see that the proposed
concise and brief statement of the facts which the jury instructions are to be in the form of a court
parties propose to establish by evidence on the paper with caption (that is what “properly entitled
trial,” and, incidentally, allows the defendant in the cause” means); the title is to make it clear
to defer making an opening statement until the which party’s they are (i.e., “Defendant’s proposed
close of plaintiff’s evidence if desired. The local jury instructions,” not “Proposed jury instruc-
rules have nothing specific to say about closing tions”); and the proposed instructions themselves
arguments. are to be one to a page in capital letters (easier for
Due to space limitations, and because the writ- the judge to read to the jury). We can assume that
ing of arguments is normally a job for the trial at- the other formal rules applicable to filed court pa-
torney rather than the paralegal, we will not present pers apply as well such as margins, paper size, and
sample arguments here. spacing.
As for the contents of the instructions, we see Arranging for Demonstrative

from our issues outline that we will need instruc-
Task 7 Evidence, Visual Aids, and Other
tions on at least assault, battery, negligence, and Props
punitive damages (those being the claims pleaded
in the complaint). We will also need jury instruc- The visual aids needed in a trial very much depend
tions on whatever defenses are being asserted, and on the style and preferences of the attorney trying
perhaps on other issues (for example, the weight to the case. Here are a few examples of items that Shan-
be given certain kinds of evidence). Notice that all non’s attorney might use:
parties will usually submit proposed instructions ■ A blowup showing the layout of Shannon’s ho-
on all issues—you might suppose, for example, that tel room and the adjoining hall area, to help
only defendant would need to submit instructions the jury visualize the scene.
on affirmative defenses, but plaintiff will not want to
■ A blowup of the hotel’s telephone printout
let defendant dictate the wording of the instruction,
showing that Arnie Trevayne did not answer the
and so will have to submit her own proposal.
phone at the front desk immediately after his
Where do we get these instructions? First, we
call to 911, even though he testified that he re-
look for instructions that we can modify or copy.
mained at the front desk until the police arrived.
Since the District of Arizona is part of the Ninth Cir-
cuit, we will first consult the Ninth Circuit Model ■ A blowup summarizing the main items of
Civil Jury Instructions (available on the Internet at Shannon’s damage claim.
the Ninth Circuit web site, www.ce9.uscourts.gov Why blowups rather than overhead transparencies
and follow the “documents” link). We go through or PowerPoint slides? Because blowups are easily
the model instructions and select those applicable visible without dimming the lights, require no spe-
to our case. For example, under “damages,” if we cial equipment that may malfunction, and can often
represent plaintiff, we would select instructions 7.1 be left in a position where the jury can see them
(proof of damages), 7.2 (measures of types of dam- even when they are not in use.
ages), and 7.5 (punitive damages).
There are no Ninth Circuit model instructions
covering the elements of the causes of action for as-
sault, battery, or negligence. We will have to find these
Task 8 Motions “in Limine”
elsewhere or write our own. Since these are causes of
action arising under state law, we would first consult The District of Arizona local rules do not specify a
the Arizona state court recommended jury instruc- deadline for filing motions in limine; presumably
tions; for any causes of action that we could not find the judge would set a deadline in the initial sched-
there, we would probably try the California state uling order. We have already given a detailed exam-
court jury instructions. (Books of approved jury in- ple of a typical situation calling for a motion in lim-
structions from other states can usually be found in a ine in our earlier discussion of Task 8.
comprehensive county law library or law school li-
brary. The California Civil Jury Instructions are par-
ticularly useful because they cover a huge variety of Preparing the Presentation of
Task 9 Testimony
issues. They can be found on the Internet at www.net-
lawlibraries.com/jurinst/ji_toc.html.)
Figure W17–1 shows what an excerpt from Shan- The first step in planning the presentation of testi-
non’s proposed jury instructions might look like (due mony is to make a tentative decision about which
to space limitations, we include only two instruc- witnesses to call and in what order to call them.
tions; the real submission would have many more). How? It is helpful to divide the testimony into two
main categories: liability and damages.
On the liability issue, our goal is to present
testimony establishing the elements of each cause
Task 6 Marking and Preparing Exhibits
of action. Obviously, Shannon will need to testify;
we may also want to call Dr. Collins and Arnie Tre-
Since the U.S. District Court for the District of Arizona vayne. What about others such as police investi-
does not opt out of FRCP, Rule 26(a)(3), the parties gators, other hotel guests, other hotel employees,
are required to exchange copies of their exhibits. By paramedics—how do we decide how many wit-
checking the District of Arizona local rules, we find nesses to call? Our general approach is to first
that no rule specifies how exhibits are to be marked. choose the witnesses who can best tell our
Therefore, the procedure is up to each judge; we will client’s story; then add others as necessary to be
call the judge’s secretary for instructions. sure that we have presented evidence supporting
Figure W17–1
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO. _____
Plaintiff, )
) PLAINTIFF’S PROPOSED JURY
v. ) INSTRUCTIONS
)
COLLINS, husband and wife: PARK )
HOTELS GROUP, INC., a Delaware cor- )
poration; )
)
Defendants. )
___________________________________________)
Pursuant to Rule 2.16, Local Rules of Practice of the U. S. District Court for the District of Arizona,
plaintiff hereby submits the proposed jury instructions appearing on the following pages.
RESPECTFULLY SUBMITTED this _____ day of _________________th, 20 ___.
SIMON & PORTER
_____________________________
Allen Porter
Attorneys for Plaintiff
-----------------------------------------------------------------------------------------------------------------------------------------
THE PLAINTIFF, SHANNON MARTIN, ALSO SEEKS TO RECOVER DAMAGES BASED UPON A CLAIM
OF BATTERY.
THE ESSENTIAL ELEMENTS OF A CLAIM FOR BATTERY ARE:
1. DEFENDANT INTENTIONALLY DID AN ACT WHICH RESULTED IN A HARMFUL OR OFFENSIVE
CONTACT WITH THE PLAINTIFF’S PERSON;
2. PLAINTIFF DID NOT CONSENT TO THE CONTACT;
3. THE HARMFUL OR OFFENSIVE CONTACT CAUSED INJURY, DAMAGE, LOSS OR HARM TO THE
PLAINTIFF.
Source: California Civil Jury Instructions No. 7.50; see Restatement (2d) of the Law, Torts, Section 13.
-----------------------------------------------------------------------------------------------------------------------------------------
A CONTACT WITH THE PLAINTIFF’S PERSON IS OFFENSIVE IF IT OFFENDS A REASONABLE SENSE
OF PERSONAL DIGNITY.
TO BE OFFENSIVE, THE CONTACT MUST BE OF A CHARACTER THAT WOULD OFFEND A PERSON
OF ORDINARY SENSITIVITY, AND BE UNWARRANTED BY THE SOCIAL USAGES PREVALENT AT THE
TIME AND PLACE AT WHICH THE CONTACT IS MADE.
Source: California Civil Jury Instructions No. 7.51; see Restatement (2d) of the Law, Torts, Section 13.
(Certificate of service goes here on a separate page—see Workshop 4.)
each element of each cause of action, so that the

judge cannot dismiss any of our claims for lack of
Task 10 Trial Brief/Trial Memoranda
evidence.
To establish damages, we will need, in addition The District of Arizona local rules do not call for a
to Shannon’s testimony about the expenses she trial brief. We may wish to research and prepare
has incurred, at least one physician expert to tes- memoranda on any legal, procedural, or eviden-
tify about the cost and appropriateness of the tiary issues that are likely to arise during trial.
treatment already rendered, the prognosis, and the
expected cost of any needed future treatment. We
will also need a witness who can speak for Shan-
non’s employer concerning her income, terms of Task 11 The Trial Notebook
employment, and future prospects. And, in an in-
jury case of this kind, we would probably retain an
expert economist to take the raw data, compute a Our hypothetical lawsuit is simple and straightfor-
single number representing the present value of ward enough that we should be able to prepare a trial
the damages, and present a summary of the notebook encompassing all of the documents that
claimed damages. need to be immediately accessible. We will include
The order in which witnesses are called is a the following, each under its own tabbed divider:
strategic decision about which trial lawyers do not ■ List of the notebook’s contents
always agree. Given the facts of our hypo, we will ■ Schedule or list showing which witnesses will
call Shannon first, then call Dr. Collins to hammer be called in what order
home the fact that the key Arnie gave him opened
■ Issues outline
Shannon’s door. We will call the “damage” wit-
nesses last. We will pass on calling Arnie Trevayne ■ Complaint and answer
ourselves—better to let defendant call him, then ■ Pretrial order
cross-examine. ■ Copies of significant minute entries—any rul-
To put the finishing touches on our trial sched- ings on motions for summary judgment, any
ule, we need to estimate how much time we will scheduling orders, any minute entries requir-
spend examining each witness. We can best do this ing the parties to carry out particular prepa-
after outlining the questions to be asked of each ration tasks
witness. Due to space limitations, we cannot in-
■ Voir dire questions; jury selection worksheets
clude a complete outline, but a short excerpt ap-
pears below. Notice that our outline is essentially ■ Outline of opening statement
a checklist of the facts that we want to establish; ■ Outline of examinations of plaintiff’s wit-
we will make up the questions as we conduct the nesses
examination so that they will seem natural and ■ Outline of cross-examinations of defendant’s
spontaneous. witnesses
Direct Examination—Shannon Martin ■ Copies of principal exhibits
(estimated time—four hours) ■ Draft of closing argument
1. Circumstances of presence in Las Vegas and at
Banbury Park Hotel.
a. Employed by Network Software Solutions,
Inc., as marketing representative. Trial Preparation: Learning
b. In Las Vegas for sales presentation.
c. Checked in to Banbury Park Hotel; date and
by Doing
time. Now it is your turn to try your hand at some of the
d. What room. trial preparation tasks that we have described.
2. Events leading up to injury.
Assume that you are a paralegal in the law
a. Was asleep. firm Crandall, Elkins & Major, representing Park
b. Awoke to find intruder standing at foot of bed. Hotels Group, Inc. Your supervising attorney is
c. Intruder disrobed. Gail Stoddard. Crandall, Elkins’ office is in your
d. Believed an attack was imminent. city. For this workshop, your instructor will
e. Did not recognize intruder; had never seen designate either the U.S. district court having
intruder before. jurisdiction over your locality or the county trial
.... court of your county. In the exercises that
follow, “your local court” refers to the court
specified by your instructor. Assume that the ney gets to argue first, and you do not know
hypothetical lawsuit, Martin v. Collins, is pending what he will say, but that is a problem that de-
in the court specified by your instructor. fense attorneys confront in every case, so you
will simply have to try to anticipate the argu-
ments that plaintiff’s attorney is likely to make
EXERCISES and do your best.)
In carrying out this assignment, you should refer to 6. (Task 4) Determine what procedure your local
the tasks described in this workshop. court uses for voir dire. If the procedure varies
from one judge to another, choose one judge
1. Find out what the procedure is for getting a and determine what procedure he uses. Write a
trial date in your local court. In doing so, find short memo to your supervising attorney de-
out (a) how much time elapses in a typical case scribing the procedure and citing the applica-
between filing of the complaint and trial; ble rules, if any.
(b) whether the trial dates are “firm” or not;
7. (Task 4) Imagine that you will be allowed ten
and (c) whether the court schedules more than
specific voir dire questions to be asked of the
one trial on the same day, and, if so, how it han-
entire panel, in addition to the judge’s general
dles any scheduling conflicts that result. Write
voir dire questions. What questions would you
a short memo to your supervising attorney de-
ask on behalf of defendant Park Hotels Group,
scribing the procedure, citing the applicable
Inc.? You may write the questions yourself or
rules of procedure and local rules and any
obtain them from other sources; if you obtain
other sources you consulted.
them from other sources, cite the sources. The
2. (Task 1) Determine whether there are any ap- questions should be written in a way reason-
plicable late-stage disclosure requirements. If ably calculated to be approved by the judge;
your instructor has chosen the U.S. district that is, they should not be argumentative and
court for this exercise, determine whether Rule not addressed to inappropriate subject matter.
26(a)(1)–(3) is in effect. Identify any other re-
8. (Task 5) Determine what procedure your local
quirements imposed by the applicable rules of
court uses for submitting and settling jury in-
procedure or local rules involving the ex-
structions. Write a short memo to your super-
change or disclosure of witness lists and ex-
vising attorney describing the procedure and cit-
hibits. Write a short memo to your supervising
ing the applicable rules. In your memo, address
attorney describing your findings.
(a) the deadline or time limit, if any, for submit-
3. (Task 2) Determine whether the rules of pro- ting instructions; and (b) the format in which
cedure and/or local rules of your local court proposed instructions are to be submitted.
provide for a pretrial order, pretrial statement,
9. (Task 5) Determine whether there are any
or other document of similar purpose. Write a
model or approved sets of jury instructions fa-
short memo to your supervising attorney
vored by your local court, and find out how to
(a) describing the procedure by which the pre-
access them.
trial order or statement is to be created; (b) cit-
ing the rule or rules governing the procedure; 10. (Task 5) Prepare a proposed jury instruction
and (c) listing the types of information re- or instructions to be submitted on behalf of de-
quired to be included. If possible, obtain and at- fendant Park Hotels Group, Inc., to be used in in-
tach a form pretrial order or statement suitable structing the jury on what plaintiff must prove
for use in your local court. to establish her negligence claim. The instruc-
tion is to be in a form complying with the rules
4. (Task 2) Prepare a draft pretrial order or state-
of your local court. In carrying out this assign-
ment conforming to the rules of your local court,
ment, you may borrow from any appropriate
on behalf of defendant Park Hotels Group, Inc.
model instructions or instructions from other
5. (Task 3) Your supervising attorney, who ap- sources, but you must cite each source used.
preciates all of your work on the case and val-
11. (Task 6) Determine the procedure followed by
ues your insight, has asked you what you think
one judge of your local court concerning the pre-
would be the most persuasive themes to em-
marking of exhibits. Write a short memo to your
phasize in closing argument. She asks you to
supervising attorney describing the procedure.
write a draft of the argument that you would de-
liver on Park Hotels Groups’ behalf if you were 12. (Task 7) Describe three blowups or other vi-
the trial attorney. (Of course, plaintiff’s attor- sual aids that you think would be useful in
presenting the case on behalf of Park Hotels 15. (Task 11) Prepare a trial notebook for use by
Group, Inc. your supervising attorney. To the extent that the
items included consist of papers that you have
13. (Task 9) Prepare an outline of the direct ex-
prepared in other workshops, use copies of the
amination of Arnie Trevayne on behalf of Park
actual papers; for each of the other items, use a
Hotels Group, Inc.
single sheet of paper describing the item. Be
14. (Task 9) Prepare an outline of the cross- sure to include a table of contents or list show-
examination of Shannon Martin on behalf of ing all of the items contained in the notebook.
PRACTICE POINTERS
Courtroom Testimony
Being a witness is not as simple as being willing to tell what you know and
remembering the details of what you have come to testify about. Most litiga-
tors have learned how to manipulate adverse witnesses to minimize the dam-
age they do to their client’s case. Therefore, witnesses must be able to antici-
pate the kinds of questions they will receive during cross-examination and the
types of cross-examination techniques to which they will be exposed.
The following observations serve as an introduction to the preparation for
courtroom testimony. Testifying is more of an art than a science, an art that ex-
pert witnesses often spend months learning about before they appear in court.
Nevertheless, an understanding of some basic concepts can make the court-
room experience more productive and pleasant. If you become a litigation para-
legal, you would be well advised to attend a number of jury trials as well as any
seminars or workshops that are offered dealing with courtroom testimony so
that you can assist in preparing your witnesses for their courtroom experience.
Always Talk to the Jury—This is one of the most important attributes of an

effective witness. Good communication requires eye contact. Witnesses who
talk to the attorney who is questioning them lose the attention of the jury. Re-
member that it is the jurors who render the ultimate decision and who must
assess the testimony they hear. For that reason witnesses must focus on con-
vincing the jury (not the attorneys and not the judge, unless the judge is the
trier of the fact) of the truthfulness and accuracy of their testimony.
Never Volunteer Any Information—Those who volunteer information

usually discover, much to their chagrin, that they have subjected themselves
to additional cross-examination. The wise witness answers only what is asked
of him and nothing more. The more information a witness offers, the more am-
munition he provides the attorney for cross-examination.
Feel Free to Say You Do Not Know—Witnesses who admit they do not
know cannot be cross-examined in any depth about their lack of knowledge
and their willingness to admit their limitations bolsters jurors’ confidence in
their expertise. Those who speculate open themselves to additional ques-
tions and lose credibility when they cannot provide the answers.
Never Lose Your Temper—Attorneys are delighted when witnesses lose

their temper on the witness stand because they know they will automatically
lose some credibility with the jury. Some attorneys deliberately provoke wit-
nesses to anger, especially when they have no substantive grounds for im-
peaching the witness. Masters of this technique will probe until they find the
witness’s vulnerabilities. Putting the witness on the defensive then becomes
a simple matter of verbally jabbing until the witness explodes. An angry wit-
ness is an irrational witness and is easily incited into making comments that
the attorney can use to his advantage.
Do Not Try to Verbally Spar with an Attorney—You will lose. Most liti-
gators are accustomed to verbal repartee and excel at quick responses. At-
tempts at one-upmanship usually backfire and result in the witness appearing
foolish.
Dress Conservatively—First impressions are very important, especially in

the courtroom, where jurors often have only one opportunity to see a witness.
Avoid dressing in such a manner that might be offensive or distracting to any-
one. Surveys of jurors indicate that jurors are very influenced by the dress and
mannerisms of attorneys and witnesses and sometimes form opinions based
on those reactions rather than more objective assessments of the evidence.
Speak Clearly and Use Language That Those with Minimal Education
Can Understand—Witnesses who testify to the jury can quickly assess
whether they are being understood. Jurors who cannot hear or who are con-
fused by what is being said will usually telegraph their lack of understanding
with their body language. Be aware that juries in some states have an educa-
tional level that averages around the fifth grade. While witnesses should never
“talk down” to jurors, they should avoid using terminology that interferes with
their ability to communicate. If witnesses must use specialized terms, they
should define those terms, either directly or parenthetically.
TECHNO TIP
Preparing for trial often involves the such as TASA (Technical Advisory Service
need to find an expert in a particular for Attorneys), are brokers who provide
field to give testimony in support of your assistance in selecting the right witness,
client’s position. Oftentimes the expert introduce the witness to the prospective
may also be a fact witness (such as a client, and bill the client for services
treating physician in a tort case). In other rendered. TASA’s web site and an ex-
cases it may be necessary to find an explanation of the services it provides can
pert (such as in medical malpractice and be viewed at www.tasanet.com. Other
product liability cases). Numerous orga- “listing” services are, for example,
nizations exist that provide help with expertwitness.com, lawinfo.com, and
finding experts. Some are paid by the experts.com. You may also want to refer
expert for listing his or her name and to the Techno Tip for Workshop 3. By the
providing a link to those seeking the ser- way, if you are just now looking for an
vice of an expert witness. Other groups, expert, you are way too late!
FORMS FILE
In your forms file, include:

■ Summaries of the trial setting procedures for the courts in your
jurisdiction
■ A sample pretrial statement or order
■ Sample jury instructions and a summary of the format and
procedure required for submitting jury instructions
■ A sample motion in limine
■ The table of contents from a sample trial notebook
KEY TERMS
Firm trial date Judge pro tem Trial notebook

How to Obtain
a Judgment
WORKSHOP
18
INTRODUCTION: WHAT IS A fines a judgment (somewhat circularly) as “any or-
JUDGMENT AND WHY DO WE der from which an appeal lies.”
NEED ONE? What, exactly, is a judgment, then? It is a docu-
ment in the form of a filed court paper, with the case
The judgment is the piece of paper that declares caption, signed by the judge (or in some situations
who won the lawsuit. In this workshop, we learn by the clerk). If the judgment is in favor of plaintiff,
how to get the court to issue a judgment. You might the body of the document recites the amount that
suppose that, after a party has won the suit, it would plaintiff has won; if in favor of defendant, the body
be trivially simple to obtain a judgment reflecting of the document recites that plaintiff’s claims are
the fact. As we will see, however, there are still a few dismissed. We discuss the exact language and for-
hoops to be jumped through. mat in more detail later in this workshop.
Plaintiff’s purpose in filing a lawsuit is to force A judgment becomes valid only when it is en-
defendant to pay plaintiff money. Winning at trial tered; until then, it has no effect. Under the federal
does not automatically put any money in plaintiff’s rules, a judgment is considered entered only when it
pocket, so there must be procedures by which plain- is both (1) set forth in a separate written document
tiff can force defendant to pay up. How? Several pro- and properly signed by the judge or the clerk and
cedural tools are available to plaintiff for trying to (2) recorded in the clerk’s docket (an index-like
collect what he has won, including attachment, gar- record kept by the clerk in which all judgments are
nishment, sale on execution, and foreclosure. In recorded). State court procedural rules vary; your
essence, all of these collection procedures involve instructor will inform you of what steps are required
using the police power of the government to seize for a judgment to be considered as “entered” under
defendant’s assets and use them to pay plaintiff. the rules of the state courts of your locality.
To take advantage of any of these collection pro-
cedures, plaintiff must have a judgment. The clerk Your Local Notes
will not issue a writ of execution, attachment, or gar-
nishment unless a valid judgment has first been en- _________________________________________________
tered. It is not enough to win at trial—when plaintiff _________________________________________________
wins at trial, the jury renders a verdict, and a verdict
is not the same as a judgment. The outcome of the
case is not “official” until the court enters a judgment.
Suppose defendant wins. Does a judgment still PROCEDURE FOR OBTAINING
need to be entered? Yes. In the first place, defendant A JUDGMENT
will usually be entitled to make plaintiff reimburse Before we can obtain a judgment, we must first es-
the costs of suit. To collect, defendant needs a judg- tablish that we are entitled to one. As we will see, the
ment. Also, it is the judgment—whether for plaintiff exact procedural steps for obtaining a judgment
or defendant—that makes the court’s decision final, vary depending on the manner in which the prevail-
and prevents the losing party from filing another ing party won the case. Here are some of the ways in
suit involving the same subject matter. Once the which a party can become entitled to a judgment:
court has entered judgment in a case, the principle
of res judicata (a Latin phrase meaning “thing de- ■ Win a jury verdict at trial. Of course, the losing
cided”) applies, and neither party can relitigate any party can move for a new trial (FRCP, Rule 59)
of the issues embraced by the judgment. or for judgment notwithstanding the verdict
The entry of judgment is also the event that trig- [FRCP, Rule 50(b)], but if the judge does not
gers the losing party’s right to appeal. In general, set aside the verdict, the winner of the trial is
American appellate courts will not entertain an ap- entitled to a judgment.
peal until the case in the trial court is completely ■ Win a motion for judgment as a matter of law
over. If litigants were allowed to appeal every time during trial. Under traditional trial practice, if,
the trial judge made an unfavorable ruling, lawsuits after plaintiff rested, the judge concluded
would drag on for decades. Therefore, the statutes that plaintiff had not produced enough evi-
and rules governing civil appeals invariably allow dence to establish all the elements of plain-
appeals only after a final judgment has been entered tiff’s cause of action, the judge could grant a
at the trial court level. In fact, FRCP, Rule 54(a), de- motion to dismiss. If, after defendant rested,
582 WORKSHOP 18 How to Obtain a Judgment
defendant had not produced enough evi- kinds of cases, and in cases where the parties
dence to justify a reasonable juror in finding do have a right to a jury trial they can waive the
for defendant, the judge could grant a motion jury by agreement. The alternative is to con-
for a directed verdict in favor of plaintiff. In ef- duct a trial to the court in which the judge per-
fect, these motions allow the judge to save forms the functions of both judge and jury. In a
time by taking the decision away from the jury trial to the court, there is no jury verdict; it is
in cases where the evidence so dispropor- the judge who decides the outcome. Since there
tionately favors one party that only one rea- is typically no urgent need to hurry—there are
sonable outcome is possible. no jurors being kept away from their jobs and
Some state courts still follow the traditional families—the judge often announces the deci-
terminology. The federal rules, however, pro- sion by minute entry after taking the case under
vide for a single motion—the motion for judg- advisement for some period of time. The win-
ment as a matter of law—in place of the mo- ning party is, of course, entitled to judgment.
tion to dismiss at the conclusion of plaintiff’s ■ Win a motion for summary judgment. As we
evidence and the motion for directed verdict have seen elsewhere (see, e.g., Workshop 16),
at the conclusion of defendant’s evidence. the rules offer a procedure for dealing with
FRCP, Rule 50(a), allows the court to grant situations in which one party’s case is so
judgment as a matter of law if, at any time dur- weak that the outcome of the lawsuit is a fore-
ing trial, “a party has been fully heard . . . and gone conclusion, making it a waste of time to
there is no legally sufficient evidentiary basis conduct a trial. FRCP, Rule 56, allows either
for a reasonable jury to find for that party. . . .” party to file a motion for summary judgment,
■ Win a renewed motion for judgment as a matter asking the judge to end the lawsuit and grant
of law after trial. Traditionally, the losing party immediate judgment. To succeed, the moving
at trial could file a motion for judgment notwith- party must convince the judge that there are
standing the verdict (also called a “motion for no genuine issues of material fact; in other
judgment n.o.v.,” for non obiter verdictum, words, there is no credible evidence on the
which means the same thing). If the judge were opposing party’s side. Motions for summary
persuaded that the jury’s verdict was wrong as judgment can be made at any time after the
a matter of law—that there was no way in complaint is filed (subject to any restrictions
which reasonable jurors following the instruc- or deadlines imposed in scheduling orders).
tions given could properly have reached the ■ Win a motion to dismiss. When plaintiff’s case
verdict based on the evidence presented—the is procedurally defective in some way—for ex-
judge could set aside the verdict and enter ample, if plaintiff has failed to allege in the
judgment for the party who lost at trial! complaint facts sufficient to establish a valid
Again, the procedure in some state courts still cause of action, or if the court does not have
allows for motions for judgment notwithstand- jurisdiction, or if the complaint has not been
ing the verdict. In federal court, the corre- properly served—defendant has the option of
sponding procedure is a renewed motion for moving to dismiss under FRCP, Rule 12(b). If
judgment as a matter of law made under FRCP, the judge grants the motion, then defendant is
Rule 50(b). The moving party must first make a entitled to a judgment reflecting the dismissal.
motion for judgment as a matter of law under ■ Win by default. If defendant fails to appear and
FRCP, Rule 50(a), at the close of all the evidence respond to plaintiff’s complaint within the
(i.e., immediately before the case is submitted time period allowed by FRCP, Rule 12, plaintiff
to the jury). If the court denies the motion, the may take steps to obtain judgment by default.
moving party may renew it—in effect, make the ■ Settlement or stipulation. When litigants settle
same motion again—after the verdict is in. a lawsuit, the defendant wants to be assured
that plaintiff cannot take the settlement
Your Local Notes money and then sue again. Therefore, it is cus-
_________________________________________________ tomary for settlement agreements to provide
for the entry of a stipulated judgment. If the
_________________________________________________ defendant is paying cash or otherwise carry-
ing out the settlement terms immediately, the
quid pro quo is usually a stipulated judgment
■ Win a trial to the court. Not all trials are jury tri- of dismissal. If the defendant is agreeing to
als. There is no right to a jury trial for some pay in the future, plaintiff may insist on a stip-
WORKSHOP 18 How to Obtain a Judgment 583
ulated judgment for the amount defendant is pare and sign the judgment, and more complicated
agreeing to pay, so that if defendant fails to situations in which the judge will need to review and
pay as agreed, plaintiff can immediately start approve the judgment. FRCP, Rule 58(1), provides:
collection proceedings. Subject to the judge’s
[U]pon a general verdict of a jury, or upon a
approval (which is rarely withheld—if the decision by the court that a party shall recover
parties want to settle, the judge is unlikely to only a sum certain or costs or that all relief shall
object!) the parties are free to enter into a be denied, the clerk, unless the court otherwise
stipulation calling for entry of judgment on orders, shall forthwith prepare, sign, and enter
whatever terms they can agree on. the judgment without awaiting any direction by
the court. . . .
Notice that in all of these situations, the entry of the
judgment is a separate event from the ruling entitling A “sum certain” means a specified dollar amount. If
a party to judgment. For example, if the judge grants the jury returns a general verdict for plaintiff for a
a motion for judgment as a matter of law, the ruling specified amount of money, or if the jury returns a
granting the motion is not a judgment. If the judge verdict for defendant, or if the judge grants a motion
grants a motion for summary judgment, the minute that disposes of the case in such a way that no cal-
entry granting the motion is not a judgment—a culation of the amount of the judgment is required,
minute entry is never (well, almost never) a judg- then the rule places on the clerk of the court the
ment. A judgment is a separate, self-contained docu- duty to “prepare, sign, and enter” the judgment. Of
ment, and the appropriate procedural steps must be course, judgments of the kind that the clerk can en-
taken to prepare it, get it signed, and have it entered. ter are simple documents, and the clerk can simply
In this workshop, we study the steps required to use a printed or word processor form, fill in the dol-
obtain a judgment. Our main focus, and the subject lar amount, sign the judgment, and enter it in the
of our step-by-step instructions, will be the proce- docket. No involvement by the judge is needed, be-
dure for obtaining a default judgment when defen- cause there are no decisions to make. Figure W18–1
dant fails to file an answer or other responsive is an example of a simple judgment for a sum cer-
pleading. We have chosen default judgment proce- tain, of the kind that would be entered after, in our
dure as our main topic because obtaining a default hypo, the jury renders a verdict for Shannon in the
judgment involves most of the same steps as are re- amount of $375,000. (In this example, we are assum-
quired to obtain other kinds of judgments (plus a ing that Shannon’s claims against Dr. Collins have
few additional ones), and because obtaining a de- previously been settled and dismissed, so that the
fault judgment is a task often assigned to paralegals. claims against Park Hotels Group, Inc., are the only
Before we begin our exploration of default judgment remaining claims in the lawsuit. When judgment is
procedure, however, we will briefly explain what is rendered as to some but not all parties or claims,
entailed in getting the court to enter judgment when the court must decide whether the partial judgment
we have won the case at trial or by motion. is to be final or not; see sidebar on FRCP, Rule 54(b),
findings.) Notice that our example judgment pro-
Your Local Notes vides for interest. The right to interest on the judg-
_________________________________________________ ment arises from a federal statute; see sidebar.
_________________________________________________ Your Local Notes

_________________________________________________
JUDGMENT AFTER ADJUDICATION _________________________________________________
In most U.S. district courts, entry of judgment hap-

pens more or less automatically after an adjudica-
tion by the court. (By “adjudication by the court” Judgments Requiring the Judge’s Approval—
we mean a jury verdict, a decision by the judge fol- Sometimes, however, the judgment is for relief
lowing a trial to the court, or a ruling granting a mo- other than or in addition to money damages. Per-
tion for judgment as a matter of law, motion for sum- haps plaintiff is asking for an injunction, a judgment
mary judgment, motion to dismiss, or other motion ordering defendant not to take some specified ac-
entitling a party to judgment.) tion. Now, the wording of the judgment takes on
greater importance. Or perhaps the judge has
Judgments Entered by the Clerk—The rules granted plaintiff’s motion for summary judgment,
make a distinction between simple situations, in but it is not clear from the ruling exactly what
which the clerk of the court is empowered to pre- amount of damages plaintiff is entitled to. In such
Figure W18–1 Sample Judgment

DISTRICT OF ARIZONA

)
) NO. CV98 -01456 PHX JL
Plaintiff, )
) JUDGMENT
v. )
)
corporation; )
)
Defendants. )
_____________________________________)
This action came on for trial before the Court and a jury, Honorable Jerome Lewis, District Judge,
presiding, and the issues having been duly tried and the jury having duly rendered its verdict,
IT IS ORDERED AND ADJUDGED that the plaintiff Shannon Martin recover of the defendant Park Hotels
Group, Inc. the sum of Three Hundred Seventy-Five Thousand and no/100 Dollars ($375,000.00), with
interest thereon at the rate of 6.5 percent as provided by law, and her costs of action;
Dated at Phoenix, Arizona this _____ day of ______, 20 ___.
Clerk of Court
SIDEBAR
Interest on Judgments
The winner of a lawsuit is entitled to interest on the Since federal court judgments are (usually) prepared
money owed from the time the judgment is entered un- by the court, the court will insert the correct rate.
til it is paid. In federal court, the right to interest comes In state court, the interest rate applied to civil
from 28 U.S.C. § 1961(a), which provides: judgments depends on state law. Your instructor will
Interest shall be allowed on any money judg- inform you of the applicable rates in the state courts
ment in a civil case recovered in a district of your locality.
court. . . . Such interest shall be calculated from What about interest before the date of the judg-
the date of the entry of the judgment, at a rate ment? Lawsuits sometimes take years to resolve. Does
equal to the coupon issue yield equivalent (as plaintiff lose the interest on her money for however
determined by the Secretary of the Treasury) of long the defendant can drag out the suit? Yes and no.
the average accepted auction price for the last If the damages claimed are a “liquidated sum”—a
auction of fifty-two week United States term approximately equivalent in meaning to “sum
Treasury bills settled immediately prior to the certain”—plaintiff is entitled to interest from the date
date of judgment. the obligation sued on was incurred, and the interest
In plain English, the judgment is to include inter- will be included in the judgment as part of the dam-
est at the current rate for one-year Treasury bills, ages. If the damages are not liquidated, prejudgment
which rate you can find in any financial newspaper. interest is not awarded.
SIDEBAR
Rule 54(b) Findings
Sometimes the court enters a judgment that does (3) the judge retains the power to revise a ruling that
not dispose of all the issues in the case. This can hap- is not final.
pen in two main ways: Rule 54(b) gives the judge the authority to make
1. The judge makes a ruling that ends the case a judgment final even if it does not dispose of all
as to one or more but not all defendants. claims against all parties, but to do so the judge must
Suppose, in our hypothetical lawsuit, that Dr. make an express finding:
Collins moves for summary judgment and the When more than one claim for relief is pre-
judge grants the motion. The lawsuit is over as sented in an action . . . or when multiple par-
far as Dr. Collins is concerned, but continues ties are involved, the court may direct the entry
against Park Hotels Group, Inc. of a final judgment as to one or more but fewer
2. The judge makes a ruling that disposes of than all of the claims or parties only upon an
one or more causes of action, but not all. For express determination that there is no just rea-
example, in our hypothetical lawsuit, suppose son for delay and upon an express direction for
the judge dismisses Shannon’s negligence the entry of judgment.
claim against Dr. Collins, but not her assault Typically, this is done by including “Rule 54(b)
and battery claims. language” in the judgment—a recital that the court
When a ruling by the judge disposes of part but has determined that there is no just reason for delay
not all of the claims in the lawsuit, it is necessary for and expressly directs immediate entry of the judg-
the judge to decide whether the judgment is to be fi- ment. Rule 54(b) determinations are not granted rou-
nal. Why do we care? Several reasons: (1) The judg- tinely, however, because they lead to different parts of
ment cannot be appealed until it is final; (2) if the the case being appealed at different times. The party
judgment is for plaintiff, plaintiff cannot begin pro- seeking the determination must show good reasons
ceedings to collect the judgment until it is final; and why the partial judgment should be made final.
situations, the judge must approve and sign the sign. If the judgment involves anything more com-
judgment, then transmit it to the clerk of the court plicated than money damages in a “sum certain,” the
to be entered in the docket. winning party must send a copy of the proposed
When a judgment requires the judge’s approval, judgment to the losing party, who is then given a
who prepares it? In many federal district courts, the short period of time in which to file any objection to
judge’s law clerk is assigned that duty. The alterna- the form of the judgment. If necessary, the judge
tive is for the winning party to prepare and submit may hold a hearing to settle the exact wording of the
the proposed judgment. In theory, under the federal judgment. After the judge approves the judgment,
rules, the court, not the winning party, is responsi- he signs it and transmits it to the clerk for filing and
ble for preparing the judgment. FRCP, Rule 58, pro- docketing. The precise steps that constitute “entry”
vides that “Attorneys shall not submit forms of of the judgment in state court depend on the rules in
judgment except upon direction of the court, and effect in that state. Your instructor will inform you of
these directions shall not be given as a matter of the procedure by which a judgment is prepared and
course.” Nevertheless, some federal district courts entered under the rules of the state courts having ju-
provide by local rule that it is up to the attorney for risdiction in your locality.
the winning party to submit the proposed judgment
to the court. Your Local Notes
State Court Procedure—In state court, it is un- _________________________________________________
common for either the clerk of the court or the judge
_________________________________________________
to prepare judgments. Both are far too busy, and
state court judges rarely have law clerks to help
them. The usual procedure in state court is for the
attorney for the winning party to submit a proposed Taxation of Costs—We have seen that in federal
judgment, that is, the actual paper that the judge will district court, either the judge or the clerk prepares
and signs the judgment. Is there, then, nothing that Determine That a Default
the attorneys need do? In fact, there is one thing: es-
Step 1 Has Occurred
tablish the amount of costs that the winning party
is entitled to recover. In federal district court, this is For plaintiff to be entitled to a default judgment, de-
done by submitting a bill of costs. The procedure fendant must first default. [It is, of course, possible
for doing this is the same whether the judgment is for someone other than plaintiff to seek a default—
on the merits or by default, and we describe it in de- for example, there can be a failure to respond to a
tail under Step 6. counterclaim, cross-claim, or third party claim; see
FRCP, Rule 55(d). In the vast majority of cases, how-
Your Local Notes ever, the default consists of one or more defendants
_________________________________________________ failing to file an answer, and it is plaintiff who is
seeking the default judgment, so it will be easier if
_________________________________________________ we cast our discussion accordingly.]
In general, for a defendant to be in default, four
things must be true:
Obtaining a Default 1. The complaint has been properly served on
that defendant;
Judgment: Step-by-Step
2. The court has jurisdiction of the subject matter
Instructions of the action and of the person of defendant
We now examine the steps required to obtain a de- (see Workshop 2);
fault judgment in the not uncommon situation 3. The time period allowed by FRCP, Rule 12(a),
where a defendant has failed to respond to plain- for filing a responsive pleading has expired;
tiff’s complaint. First, we must take the required and
steps to establish that a default has, in fact, oc-
4. Defendant has not filed and served either an an-
curred. Then we can request entry of judgment, but,
swer to the complaint or a motion to dismiss or
depending on the circumstances, notice to the de-
other motion permitted under FRCP, Rule 12.
faulting party may be required, and a hearing may
(Of course, if a motion to dismiss has already
be necessary. Once the judgment is entered, we
been denied, then only an answer will do.)
need to take steps to have our court costs added to
the judgment. If we represent the plaintiff, we computed and
The procedure that we describe here is that dic- docketed the due date for the answer as soon as the
tated by the Federal Rules of Civil Procedure for use complaint was served, so we know when the FRCP,
in federal district courts. State court default proce- Rule 12(a), time period expires. As a practical mat-
dure often differs from that under the federal rules ter, however, it is not always easy to determine
(even in states whose civil procedure otherwise fol- whether a given defendant has filed and served an
lows the federal rules) and varies considerably from answer. Recall that FRCP, Rule 5(b), allows defen-
one state to another. There is also some variability dant to serve the answer by mailing it to plaintiff’s
in the federal system, with some district courts attorney, and service is complete when defendant
adopting local rules governing some aspects of judg- places the answer in the mail. Mail sometimes takes
ment procedure. We will point out the respects in a week or more to arrive or is lost entirely. Nor can
which state court procedure commonly differs from we necessarily find out whether an answer has been
the federal as we go along, and your instructor will filed at the clerk’s office. It takes time for the clerk
inform you of the exact procedure to be followed in to process incoming papers, and meanwhile they
the state courts of your locality and give you cita- may not be accessible. Because of these uncertain-
tions for the pertinent state court rules. ties, we would usually wait at least a week after the
A final caveat before we begin: If the defaulting due date for the answer before beginning the steps
party is an agency of the government, additional to obtain a default judgment.
complications arise that are beyond the scope of Notice that defendant does not necessarily
this introductory text. Suits against the government have to file an answer to avoid default. FRCP, Rule
are fraught with many procedural pitfalls, and de- 12(a)(4), provides that any motion under Rule 12—
fault judgments are usually difficult or even impos- a motion to dismiss, motion for judgment on the
sible to obtain. Should the need arise, plan on pleadings, motion for a more definite statement, or
spending a few days of quality time at the law li- motion to strike—suspends the need to file an an-
brary researching your options. swer until (typically) 10 days after the court rules
on the motion. Therefore, as a practical matter, de-

fendant can avoid default either by filing an answer
Step 3 Apply for Judgment by Default
or by filing a motion to dismiss or other motion un-
der FRCP, Rule 12. After the clerk has entered default, plaintiff may ap-
ply for a default judgment. The procedure for ob-
Your Local Notes taining the actual judgment may be simple, or not
_________________________________________________ so simple, depending on the type of relief that plain-
tiff is asking for.
_________________________________________________ To understand why the rules make the distinc-
tions that they do, you must first realize that defen-
dant still has some rights even after defaulting. By
defaulting, defendant gives up the right to contest
Provide the Clerk with the liability. The default automatically makes plaintiff
Step 2 Necessary Paperwork to the winner of the lawsuit, regardless of what the ev-
Enter the Default idence might show if the case went to trial. How-
ever, even after defaulting, defendant still has the
Before plaintiff can apply for judgment by default, right to insist that the amount of the judgment not
the clerk must first enter the default; see FRCP, Rule exceed the amount of plaintiff’s actual, provable
58(a). The terminology is somewhat confusing— damages. Plaintiff is not free simply to pull a num-
“entering default” under FRCP, Rule 58(a), is not the ber out of the air.
same as “entering judgment by default” under FRCP, Likewise, defendant is entitled to rely on the
Rule 58(b). “Entry of default” refers to an action amount plaintiff has demanded in the complaint as
taken by the clerk to take official recognition of the an upper limit on the amount of the judgment. FRCP,
fact that defendant has defaulted. As we will see in Rule 54(c), states that “A judgment by default shall
Steps 3 and 4, the clerk enters the default by signing not be different in kind from or exceed in amount
and filing an entry of default, a court paper that that prayed for the demand for judgment.” If plain-
plaintiff’s attorney provides. This establishes the tiff asks for $100,000 in the complaint, and defen-
fact of default on the record. dant defaults, plaintiff cannot then obtain a judg-
The clerk is authorized to enter a default only ment for $200,000, even if the evidence would
after determining that defendant has, in fact, failed support the higher figure.
to file a responsive pleading. How? FRCP, Rule 58(a) Therefore, whether it is simple or complicated
provides: to obtain a default judgment depends mainly on
When a party against whom a judgment for how difficult it is to nail down the amount of the
affirmative relief is sought has failed to plead or damages. We will take the easy case first.
otherwise defend as provided by these rules
and that fact is made to appear by affidavit or
Your Local Notes
otherwise, the clerk shall enter the party’s
default. _________________________________________________
As this rule indicates, the usual procedure by which _________________________________________________

the default is established is for plaintiff’s attorney
to file with the clerk an affidavit verifying that de-
fendant has not responded to the complaint. Plain- Judgments That Can Be Issued by the Clerk—
tiff’s attorney also provides the entry of default for The clerk of the court is empowered to enter a de-
the clerk to sign, and may be required to submit a fault judgment, without any need for approval from
written request asking the clerk to enter default. To the judge, if each of the following three things is
see what an affidavit of default and an entry of de- true:
fault look like, see Step 2 in the Learning by Exam-
ple section later in this workshop. 1. The default is because a defendant has failed to
appear. But wait—do not all defaults involve a
failure to appear? Not necessarily. For exam-
Your Local Notes
ple, the judge has the power to default a party
_________________________________________________ as a sanction for certain discovery infractions;
_________________________________________________ see FRCP, Rule 37(b)(2)(C). Also, it is possible
to appear in a case without filing an answer.
One way is to file a notice of appearance; an-
other is to file a motion under Rule 12. Sup- asking for. Even if the promissory note provides for
pose, for example, defendant files a motion to interest on the debt, the interest is an amount that
dismiss under FRCP, Rule 12(b)(6), the motion “can by computation be made certain” so the clerk
is denied, and defendant then fails to file an an- can still issue the judgment.
swer. Defendant has appeared in the action by At the other extreme, a personal injury lawsuit
filing the motion, but is in default for not filing seeking damages for pain and suffering, where it is
an answer. In such a situation, the clerk cannot normally up to the jury to attach a dollar figure to
issue the default judgment (but the judge can, plaintiff’s pain, clearly involves damages that are
see below). not a sum certain. The clerk is not equipped to de-
cide how much the damages should be in such
2. The defendant has capacity to be sued. If defen-
cases.
dant is below the age of adulthood, or is insane,
What about a suit for breach of a construction
or is otherwise incompetent to defend a law-
contract, in which the damages are calculable in
suit, the clerk cannot enter a default judgment;
principle, but doing so may require a good deal of
see FRCP, Rule 55(b)(1). [Again, the judge may
bookkeeping, adding up receipts, and making deci-
be able to, but only if the person’s guardian or
sions about which expenses are properly charge-
conservator has appeared in the action to rep-
able? Sum certain or not? In borderline situations of
resent the person; see FRCP, Rule 55(b)(2).]
this kind, it may be necessary to do some legal re-
3. The amount of damages is either a sum certain search to determine whether the damages qualify as
or an amount that “can be made certain by a sum certain. Or, perhaps, simply state in the affi-
computation.” Plaintiff must establish the davit that the damages are a sum certain, since the
amount of damages by submitting an affi- clerk has no way of checking? Not a good idea—see
davit. If the affidavit does not state that the the sidebar on Consequences of Guessing Wrong.
amount claimed is a sum certain or a sum that Default judgments issued by the clerk—docu-
can be made certain by computation, the ments required: If the case qualifies for issuance of
clerk cannot issue a default judgment (but, a default judgment by the clerk, what paperwork is
again, the judge can). required of plaintiff? FRCP, Rule 55(b)(1), directs
In the normal, routine default situation, the de- the clerk to enter judgment “upon request of the
fault has occurred because defendant has simply ig- plaintiff and upon affidavit of the amount due.”
nored the complaint and done nothing. (Why would Therefore, plaintiff must submit two documents: a
a defendant do that? Often, when the suit is to col- request for entry of judgment and an affidavit es-
lect a debt, defendant has no real defense, and it tablishing the amount of damages. We will also need
would be a waste of money to hire a lawyer. Better a judgment. In some district courts, the clerk pre-
and cheaper to file for bankruptcy than to spend pares the judgment, using a printed form. In other
money defending a lawsuit that cannot be won.) In courts, plaintiff’s attorney prepares and submits
practice, suits against minors and insane people do the form of judgment for the clerk to sign.
not happen very often. Therefore, the issue that There is one additional paperwork requirement,
usually determines whether the clerk can issue a arising from the federal Soldiers and Sailors Relief
default is the question of whether plaintiff’s claim is Act, 50 App.U.S.C. § 520. This statute provides:
for a sum certain. In any action or proceeding commenced in
any court, if there shall be a default of any
Your Local Notes appearance by the defendant, the plaintiff,
before entering judgment shall file in the court
_________________________________________________ an affidavit setting forth facts showing that the
_________________________________________________ defendant is not in military service. . . .
If the defendant is a member of the military, no de-
fault judgment is allowed unless the court first ap-
When is a sum certain?: What kinds of damages points an attorney to represent the defendant (in
qualify as a sum certain? As with most issues in lit- which case, the appointed attorney will of course
igation, there is no bright line distinguishing sums immediately file an answer and eliminate the de-
that are “certain” from those that are not. At one ex- fault). The practical effect of the act for our pur-
treme, a lawsuit to collect a debt, where the debtor poses is that we will also need to file an affidavit
has signed a promissory note for a specific amount stating that defendant is not in the military ser-
of money, clearly involves a sum certain—it is clear vice (or add such a statement to the affidavit on
from the complaint exactly how much plaintiff is damages).
SIDEBAR
Consequences of Guessing Wrong
Default procedure is unique in that defendant is usu- to determine whether the damages in our case are a
ally not around to contest plaintiff’s assertions. All sum certain or not, and we find cases going both ways.
plaintiff need do to get the clerk to issue a default Could we not go ahead and file our affidavit claiming
judgment is submit the right documents. The clerk that our damages are a sum certain, since there is no
takes plaintiff’s word for it that the requirements of one who can contest our conclusion anyway?
FRCP, Rule 55(a), are met. If plaintiff submits an affi- The problem is that defendant has the right to ap-
davit stating that defendant has not appeared in the peal from a default judgment. Defendant cannot re-
action or that the amount claimed is a sum certain, open the merits of the case on appeal, but she can at-
the clerk assumes that the affidavit is true and issues tack the validity of the process by which the default
the judgment. As a practical matter, therefore, there is judgment was issued. If the court of appeals decides
nothing to stop plaintiff from getting the clerk to issue that the amount claimed was not a sum certain, it will
a default judgment even in cases that do not qualify. order the default judgment set aside and we will be
A reputable attorney would, of course, never de- back to square one. Similarly, if we did not give notice
liberately lie in an affidavit. To do so would be unethi- to defendant and the court of appeals decides that de-
cal and could conceivably lead to bar disciplinary pro- fendant had appeared, the court will set aside our
ceedings or worse. The real problem is that the case judgment. Better to follow the rules carefully in the
law is quite inconsistent and unpredictable on issues first place, and err on the side of caution, than to
like what a sum certain is and what an appearance is. spend years in the court of appeals trying to defend an
Suppose, for example, we do some legal research to try invalid judgment.
For examples of the motion for judgment, affi- ment, at least 3 days before any hearing on our ap-
davit, and judgment see Step 3 in the Learning by plication takes place. (For more about default hear-
Example section later in this workshop. ings, see Step 5.)
You may be wondering why the rules would re-
Your Local Notes quire giving notice to a defendant who is in default.
If defendant cannot be bothered to comply with the
_________________________________________________
rules and file an answer, why should we have to give
_________________________________________________ him notice of anything? One reason is that if a de-
fendant has taken enough action to constitute an ap-
pearance, it is less likely that he intended to default.
Misunderstandings sometimes arise. For example, it
Judgments That Require the Judge’s Involve- may be that defendant did not file an answer due to
ment—If the case does not qualify for issuance of a belief, mistaken or otherwise, that plaintiff had
a judgment by the clerk, the alternative is to apply granted an extension of time. If the case were al-
to the judge. The basic procedure is the same as lowed to proceed to judgment with no notice to the
that for obtaining judgment from the clerk, except defendant, it is likely that defendant would move to
that the motion for judgment by default is directed set aside the default judgment (see sidebar). The
to the court instead of to the clerk. There are, how- court would spend time holding a default hearing
ever, a few additional complications, as we will see and then hearing the motion to set aside the default
in Steps 4 and 5. judgment. The end result most of the time would be
that the court would allow defendant to file an an-
Give Notice If Defendant swer and the case would proceed. Better to require
Step 4 Has Appeared notice, and give defendant a chance to contest the
default before the situation degenerates.
We have already seen that if defendant has ap- What does it take for defendant to make enough
peared in the action, the clerk cannot issue a default of an appearance to require us to give notice of de-
judgment and our motion for default judgment will fault? Clearly, filing a notice of appearance would
have to go to the judge. Additionally, if defendant suffice, as would filing any other paper such as a
has appeared, FRCP, Rule 55(b), requires us to give motion to dismiss, motion for more definite state-
defendant notice of our application for default judgment, or motion to strike. But some appellate
SIDEBAR
Setting Aside a Default
Some defaults happen because the defendant decides What constitutes the “good cause” required by FRCP,
to ignore the lawsuit, skip town, or file bankruptcy. Rule 55(c)? To answer these questions, it is necessary
Sometimes, however, defendant’s attorney fails to file to research the case law interpreting FRCP, Rule 55(c).
an answer because of a mistake or misunderstanding: Here are some of the factors that judges typically take
an extension is misunderstood (a good reason for al- into account.
ways confirming extensions in writing); the office’s
■ Whether the default was intentional or inadvertent;
docketing clerk miscalculates the due date for the an-
swer and no one catches the mistake; the responsible ■ Whether the defaulting party acted promptly to
attorney goes home sick at the wrong time and the correct the default;
task of filing the answer falls through a crack. ■ Whether it appears that the defaulting party has
valid defenses to raise if the case is allowed to go
Fortunately, all is not lost (although—trust us—
forward on the merits;
having to explain this kind of mishap to a client is pun-
ishment enough). Consistent with the federal courts’ ■ Whether plaintiff would be prejudiced in some way
general preference for deciding cases on the merits if the default is set aside; and
where possible, FRCP, Rule 55(c), allows the judge to ■ Whether the mistake, if any, causing the default was
set aside a default, or even a default judgment, in an excusable—in other words, not the result of incom-
appropriate case: “For good cause shown, the court petence or gross negligence.
may set aside an entry of default and, if a judgment by The procedure for seeking relief from a default is
default has been entered, may likewise set it aside in to file a motion to set aside the default under FRCP,
accordance with Rule 60(b).” FRCP, Rule 60(b)(1), al- Rule 55(c), if judgment has not yet been entered. If
lows the court to relieve a party from the effect of a judgment has been entered, a motion for relief from
judgment upon a showing of “mistake, inadvertence, judgment under FRCP, Rule 60(b)(1), is required. If the
surprise, or excusable neglect.” judge grants either motion, the defaulting party will
What sort of showing must the defaulting party be given leave to file her answer, and the case will pro-
make to convince the judge to set aside the default? ceed as if the default never happened.
courts have gone much further, even deeming a let- Hold Default Hearing If the
ter from defendant to plaintiff’s attorney an appear-
Step 5 Amount Claimed Is Not a
ance for purposes of FRCP, Rule 55. When in doubt, “Sum Certain”
we would give the notice; see the sidebar on Con-
sequences of Guessing Wrong. If the damages that plaintiff is claiming do not qual-
The notice, if required, can be of the kind that ify as a sum certain, then the court will need to hear
we have seen repeatedly in these workshops: a evidence to determine the amount of the default
filed court paper, with caption and certificate of judgment. FRCP, Rule 55(b), provides:
service, stating the date and time of the default
hearing. See Step 4 of the Learning by example sec- If, in order to enable the court to enter
tion for an example. FRCP, Rule 55(b)(2), requires judgment . . . it is necessary to . . . determine
the amount of damages or to establish the truth
the notice to be “served.” Service may be by mail
of any averment by evidence . . . the court may
as provided by FRCP, Rule 5(b), or, if defendant’s conduct such hearings . . . as it deems
address is unknown, Rule 5(b) allows plaintiff to necessary and proper and shall accord a right
serve the notice on defendant by leaving it with the of trial by jury to the parties when and as
clerk of the court. required by any statute of the United States.
As a practical matter, the court will schedule a
Your Local Notes number of default hearings for the same time pe-
_________________________________________________ riod, usually before a magistrate judge or other ju-
dicial officer (not a district judge; federal district
_________________________________________________
judges are too busy to spend time on routine default
hearings). At the hearing, the cases will be called
one at a time. When a case is called, plaintiff (or day’s notice. On motion served within 5 days
some other witness who is competent to testify thereafter, the action of the clerk may be
about plaintiff’s damages) takes the stand, and is reviewed by the court.
examined briefly—no more than a few minutes—to Traditionally, the losing party is not required to
establish the amount of damages. Obviously, the pay the winning party’s attorneys’ fees. Increasingly,
plaintiff’s testimony does not get into any of the de- however, when the Congress or state legislatures cre-
tails of how damages were computed; plaintiff ate new statutory causes of action, the statutes give
merely states the conclusions. As soon as plaintiff the winning party the right to collect attorneys’ fees
has testified, the officer conducting the hearing will from the losing party. Many contracts also provide
sign the judgment. for the winning party to receive attorneys’ fees in the
Rarely, a defendant will show up at the default event of a dispute leading to a lawsuit, so attorneys’
hearing to dispute plaintiff’s computation of the fees are often awarded in breach of contract cases.
damages. By defaulting, defendant gives up the And in class actions and shareholder derivative
right to dispute the facts alleged in the complaint, suits, where the recovery, if any, is a fund that will be
but still has the right to challenge the amount of distributed to a large number of claimants, courts
damages claimed. Default hearings are usually run usually pay the winning plaintiff’s attorney from the
as a production line operation, with a large number fund. As a practical matter, therefore, there are many
of cases scheduled to be heard in a 2- or 3-hour ses- cases in which the winning party is entitled to be re-
sion, so if it is necessary to conduct an adversary imbursed for attorneys’ fees.
hearing on damages, it will be necessary to In establishing the procedure for taxing costs,
reschedule it and allow more time. If necessary, the FRCP, Rule 54(d), makes a distinction between at-
court will conduct an actual trial, before a judge or
torneys’ fees and other costs. Attorneys’ fees are of-
in some cases, a jury, in order to decide the amount ten large in amount—sometimes amounting to
of damages to be included in the default judgment. more than the amount sued for—and the charges
are often disputed. Ordinary costs are usually small
Your Local Notes compared to the amount of the underlying judg-
_________________________________________________ ment, and disputes over the amounts charged are
infrequent. Therefore, it is reasonable to handle or-
_________________________________________________
dinary costs via a routine filing with the clerk, while
attorneys’ fees claims require deeper scrutiny.
Your Local Notes

Step 6 Tax the Costs
_________________________________________________
_________________________________________________
It is common knowledge that, in a lawsuit, the loser
pays the court costs. As a lawsuit progresses, each
party is paying out money for expenses—filing fees,
process server fees, witness fees, and a host of Taxation of Costs Other Than Attorneys’
other charges. So far, however, we have not seen Fees—We will address first the taxation of costs
any mechanism that would allow the winner to re- other than attorneys’ fees. Three main questions
cover the money spent for these items. arise: (1) What kinds of costs may the winning party
The rules provide for the winning party’s costs recover from the losing party? (2) What procedural
to be included as part of the judgment against the steps must we take to have them included in the
losing party. The process of establishing the judgment? (3) How can we determine which party is
amount for which the winning party is entitled to the “winner” for purposes of awarding costs?
be reimbursed is referred to as taxation of costs. What kinds of costs are taxable?: The Federal
The procedure is the same, whether the judgment Rules of Civil Procedure do not say what kinds of ex-
is by default or on the merits. FRCP, Rule 54(d)(1), penses are taxable as costs. There is, however, a
provides: federal statute, 28 U.S.C. § 1920, which provides:
Except when express provision therefor is A judge or clerk of any court of the United
made either in a statute of the United States or States may tax as costs the following:
in these rules, costs other than attorneys’ fees (1) Fees of the clerk and marshal;
shall be allowed as of course to the prevailing (2) Fees of the court reporter for all or any
party unless the court otherwise directs. . . . part of the stenographic transcript necessarily
Such costs may be taxed by the clerk on one obtained for use in the case;
(3) Fees and disbursements for printing and

Your Local Notes
witnesses;
(4) Fees for exemplification and copies of _________________________________________________
papers necessarily obtained for use in the case;
_________________________________________________
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed
experts, compensation of interpreters, and Procedure for taxing costs: The procedure for tax-
salaries, fees, expenses, and costs of special ing costs in federal district court is not very well
interpretation services under section 1828 of spelled out in the Federal Rules of Civil Procedure.
this title. FRCP, Rule 54(d), does not tell us what the party
A bill of costs shall be filed in the case and, seeking costs is supposed to do, or when he is sup-
upon allowance, included in the judgment or
posed to do it. FRCP, Rule 54(d)(1), states: “Such
decree.
costs may be taxed by the clerk on one day’s notice.
Obviously, this statute fails to mention a great many On motion served within 5 days thereafter, the ac-
of the kinds of expenses, many of them quite large tion of the clerk may be reviewed by the court.”
in amount, that are commonly incurred in a lawsuit. In practice, the party entitled to costs prepares
What about the fees of expert witnesses who are not and files a bill of costs itemizing the expenses
court appointed? What about court reporter fees sought to be taxed. See 28 U.S.C. § 1920, which pro-
for depositions? What about the attorneys’ travel vides that “a bill of costs shall be filed in the
and lodging expenses for attending out-of-town de- case. . . . ” The bill of costs is typically a printed
positions? Each of these items can easily run to form with blanks in which the totals for each cate-
thousands or even tens of thousands of dollars in a gory can be listed. (The standard bill of costs form
routine federal civil lawsuit. is available by download from many U.S. district
District court judges have discretion to award court Internet sites; go to www.uscourts.gov, fol-
costs other than those listed in 28 U.S.C. § 1920 in low the links to the district court of interest, and
appropriate situations (although the U.S. Supreme look for “forms” links.) Copies of receipts and item-
Court has held that this discretion should be used izations of each expense category are attached to
sparingly). In practice, the way in which many dis- the bill of costs. The printed form bill of costs also
trict courts handle the problem is by adopting a lo- includes a declaration for signature by the prevail-
cal rule prescribing in great detail which expenses ing party’s attorney, affirming that the costs listed
may be taxed as costs. See, for example, Local Rule are correct and properly taxable. (For a sample bill
54-3 of the U.S. District Court for the Northern Dis- of costs, see Step 6 in the Learning by Example sec-
trict of California, which answers each of the question later.)
tions that we posed: Many federal district courts have adopted local
rules filling in some of the gaps left by FRCP, Rule
(c) Depositions. 54(d), and specifying the procedure for taxing costs
(1) The cost of an original and one copy of in more detail. For example, Local Rule 54-8.03 of
any deposition (including video taped
the U.S. District Court for the Eastern District of
depositions) taken for any purpose in
connection with the case is allowable. Missouri states:
(2) The expenses of counsel for attending A party seeking an award of costs shall file a
depositions are not allowable. verified bill of costs, upon a form provided by
.... the Clerk, no later than twenty (20) days after
(e) Witness Expenses. Per diem, subsistence entry of final judgment pursuant to Fed.R.Civ.P.
and mileage payments for witnesses are 58. Failure to file a bill of costs within the time
allowable to the extent reasonably necessary and provided may constitute a waiver of taxable
provided for by 28 U.S.C. § 1821 [a statute costs. Each party objecting to a bill of costs
requiring a party who subpoenas a witness in a shall file, within fourteen (14) days of being
federal case to pay the witness per diem and served, a memorandum stating specific
other expenses]. No other witness expenses, objections. Within five (5) days after being
including fees for expert witnesses, are allowable. served with the memorandum, the moving
party may file a reply memorandum. The Clerk
Consult the local rules of the U.S. district court in
shall tax costs as claimed in the bill if no timely
your locality to see what, if any, provisions have been objection is filed.
adopted dealing with taxation of costs. As for the state
courts of your locality, your instructor will tell you We can summarize the usual sequence of proce-
where to find the applicable rules and/or statutes. dural steps for taxing costs as follows:
1. The prevailing party, within the time specified Who is entitled to costs?: FRCP, Rule 54(d), calls for
by local rule after the judgment is entered, files costs to be allowed to the “prevailing party.” The
a bill of costs using the court approved form. (In prevailing party is the party who has won the law-
the case of a default judgment, plaintiff will usu- suit. In many situations, it is obvious who the pre-
ally file the bill of costs together with the other vailing party is. If plaintiff takes a default judgment
papers required for the default, all at once.) The against defendant, plaintiff is clearly the prevailing
bill of costs form includes the required declara- party. If plaintiff wins at trial, plaintiff is the prevail-
tion. Notice that taxation of costs and entry of ing party. If defendant wins a motion to dismiss, or
judgment are separate events. FRCP, Rule 58, wins at trial, then defendant is the prevailing party—
states that “entry of the judgment shall not be defendant gets a judgment for costs against plaintiff.
delayed, nor the time for appeal extended, in or- Sometimes, however, it is not so clear which
der to tax costs or award fees.” party has prevailed. Suppose, for example, plaintiff
sues defendant, defendant counterclaims against
2. Notice is given to the party against whom the
plaintiff, and both sets of claims are ultimately dis-
costs are to be assessed. This is done by mailing
missed—who has won? In such situations, the court
a copy of the bill of costs. The form has blanks
has discretion to decide how costs should be
in which the party submitting it can certify that
awarded, if at all.
a copy was mailed to the opposing attorney.
3. The opposing party is given a short period of Assessment of Attorneys’ Fees—FRCP, Rule
time in which to object to the bill of costs. This 54(d), also provides for awards of attorneys’ fees in
is done by filing a court paper setting forth the appropriate cases. A party claiming attorneys’ fees
objections and the reasons for them. For exam- must file a motion asking for them, within 14 days af-
ple, if the bill of costs includes items that are ter entry of judgment; see FRCP, Rule 54(d)(2)(A) and
not properly chargeable as costs, or for which (B). The motion is to state the amount of the fees re-
the charges are excessive, objection is appro- quested, and also cite the “statute, rule, or other
priate. (Checking over an opponent’s bill of grounds entitling the moving party to the award.”
costs is a task often assigned to paralegals.) The opposing party is entitled to contest the
motion, and usually should. Attorneys’ fees claims
4. If objections are filed, a hearing is held to de-
in federal lawsuits often amount to hundreds of
cide which costs are properly taxable. Once
thousands of dollars, and not uncommonly include
the total amount of taxable costs is established
time that is excessive or not properly attributable
(or immediately, if no objection is filed) the
to the lawsuit. Ethical lawyers do not overbill, but
clerk taxes the costs. The clerk does this by
not all lawyers are as scrupulous as they should be,
noting the amount of costs taxed on the bill of
and our client has a right to expect us to scrutinize
costs form, and signing and dating it. The bill of
an opponent’s attorneys’ fees claim carefully.
costs is filed in the case file and becomes part
The judge has a variety of options at his disposal
of the record.
for adjudicating the attorneys’ fees claim. The court
You may be wondering how the costs get in- can hold a hearing, if appropriate; appoint a special
cluded when the judgment is collected. After all, the master to investigate and make recommendations;
judgment is typically entered before the costs are or, by local rule, invent other procedures for resolv-
taxed, and usually does not specify the dollar ing claims without a need for evidentiary hearings.
amount of the costs. The answer is that, if a dispute Once the attorneys’ fees claim is decided, FRCP,
arises and it is necessary to establish the exact Rule 54(d)(2)(C), directs the court to award them via a
amount, the clerk will provide a certificate showing separate judgment entered, like any other judgment, in
the amount of costs that were taxed. The judgment, the manner provided by FRCP, Rule 58. FRCP, Rule 58,
by including the words “and costs” or some similar provides that entry of judgment in the lawsuit is not to
language, serves as notice to the world that there be delayed in order to award fees; FRCP, Rule
are some costs to be paid—anyone who wants to 54(d)(2)(C), accomplishes this by relegating the attor-
know the amount can find out from the clerk. neys’ fees award to a separate judgment, entered later.

_________________________________________________ _________________________________________________
_________________________________________________ _________________________________________________
Obtaining a Default Therefore, the time period for filing an

answer has expired.
Judgment: Learning 4. Defendant has apparently not filed an answer.
by Example But wait—you may be wondering—how can we be
Now we put our knowledge of default judgment pro- so sure that defendant has not filed an answer? Af-
cedure into practice, using an example drawn from ter all, the answer could have been filed, and the
our Martin v. Collins hypo. Assume the following: copy sent to us could be lost in the mail. Perhaps we
Shannon’s lawsuit has been filed and properly should find out for sure whether the answer was
served on Park Hotels Group, Inc. Roger Yarbor- filed before we apply for default judgment?
ough (Dr. Collins’s attorney) has agreed to waive Herein lies a dilemma. We can check with the
service of the summons and complaint, and the re- clerk of the court, but even if the clerk cannot find
quired waiver has been filed. Before the answer is a record of the answer it is still possible that the an-
due, Yarborough files a motion to dismiss under swer was filed and has not yet been processed. The
FRCP, Rule 12(b)(6). The court denies the motion. only way in which we can find out for certain is to
Unfortunately, when the court’s minute entry deny- call Dr. Collins’s attorney and ask. If we do that, and
ing the motion arrives, the regular mail clerk in it turns out that Dr. Collins’s attorney dropped the
Yarborough’s firm is out sick. The secretary who is ball, we will have alerted him to correct the prob-
filling in does not realize that a denial of a motion to lem and possibly thrown away an opportunity to
dismiss starts the clock running on the deadline for gain an advantage for our client. On the other hand,
filing an answer, and so does not docket the answer if we file default papers, we will likely alienate Dr.
deadline in the office calendar. Yarborough, who is Collins’ attorney. Forgetting to file an answer is the
in the midst of a 4-week trial at the time, glances at sort of thing that gets attorneys sued for malprac-
the minute entry, feels momentarily annoyed that tice, so attorneys tend to take default judgments
the court has denied his motion, and does not no- personally. If the default is set aside for any reason,
tice the absence of the docketing stamp. By the time we should not plan on getting any favors or con-
the deadline arrives, Yarborough is busy with an- cessions from Dr. Collins’s attorney.
other trial, and the answer is never filed. Certainly we, as paralegals, should not make
The deadline has passed a week ago, and Allen the decision whether to go ahead with the default.
Porter (Shannon’s attorney) assigns us to analyze This is a decision best made by the client, with the
the situation and do what is appropriate. benefit of the attorney’s explanation of the alterna-
tives. So that we can continue our hypothetical, we
will assume that the decision is to press ahead with
Determine That a Default
Step 1 Has Occurred
the default. (In a real-life situation of this kind, how-
ever, we might well recommend checking with Dr.
Collins’s attorney first. Our recommendation would
We analyze whether Dr. Collins is in default by ap- depend on our assessment of the likelihood of mak-
plying our four-point test: ing the default stick.)
1. A valid waiver of service has been filed, so the
Provide the Clerk with the
complaint is deemed served. Step 2 Necessary Paperwork to Enter
2. The court has “diversity of citizenship” juris- the Default
diction of the subject matter of the action, as
we concluded in Workshop 2. We need an affidavit of default (Figure W18–2) and a
3. Defendant has initially avoided default by filing request for entry of default (Figure W18–3). In some
a motion to dismiss, but once the court denied jurisdictions, it is customary to combine the affi-
the motion, defendant was required to file an davit and request into a single document. We will
answer within 10 days. FRCP, Rule 12(a)(4), also need an entry of default for the clerk to sign.
provides: All of the papers in this workshop are essen-
tially form file items. Any litigation firm will have
Unless a different time is fixed by court
word processing files with forms suitable for the lo-
order, the service of a motion permitted under
this rule alters these periods of time as cal courts. Failing that, a good source of forms of
follows: this kind is Am.Jur. Pleading and Practice Forms.
(A) if the court denies the motion . . . the This is an encyclopedia-like set of books containing
responsive pleading shall be served within 10 sample forms for every conceivable situation. It is
days after notice of the court’s action. . . . available in most law libraries and on Westlaw.
Figure W18–2 Sample Affidavit of Default
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO. CV98-01456 PHX JL
Plaintiff, )
) AFFIDAVIT OF DEFAULT
v. )
)
corporation; )
)
Defendants. )
_______________________________________ )
STATE OF ARIZONA )
County of Maricopa )
Allen Porter, being first duly sworn, upon his oath states:
1. I am the attorney for plaintiff in the above-entitled action.
2. A waiver of service of the summons and complaint on behalf of defendants Arthur Collins and
Jane Doe Collins, whose real name is Anne R. Collins, was filed pursuant to Rule 4(d), Federal
Rules of Civil Procedure, on [date].
3. Defendants Collins filed a Motion to Dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil
Procedure, on [date]. The court denied the motion on [date] and notified the parties by
minute entry dated [date]. The time allowed for defendants Collins to answer plaintiff’s
complaint has expired, and defendants Collins have not answered plaintiff’s complaint.
DATED this _____ day of __________, 20 ___.
Allen Porter
Dated at Phoenix, Arizona this ___ day of __________, 20 ___.
Clerk of Court
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public, this _____ day
of __________, 20 ___.
Notary Public
Figure W18–3 Sample Request to Enter Default
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO. CV98-01456 PHX JL
Plaintiff, )
) REQUEST TO ENTER DEFAULT
v. )
)
corporation; )
)
Defendants. )
_______________________________________ )
To: Clerk of the U.S. District Court for the District of Arizona
Defendants Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins, having failed to
answer plaintiff’s complaint herein following the denial by the Court of said defendants’ Motion to
Dismiss pursuant to Rule 12(b)(6), and the time for answering having expired, you are requested to
enter their default pursuant to Rule 55(a), Federal Rules of Civil Procedure.
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
If this were entirely a paperwork default, the

Step 3 Apply for Judgment by Default
motion would be accompanied by an affidavit es-
tablishing the amount of damages and confirming
After the clerk has entered the default (Figure that defendants are not in the military service. Un-
W18–4) we must apply for entry of judgment by de- der the facts of our hypothetical, however, a hear-
fault (Figure W18–5). For the clerk to enter the judging will be required (see Step 5), so these facts will
ment, three things must be true: the default is for instead be established via testimony at the hearing.
failure to appear, defendant has capacity to be
sued, and the amount sought is a sum certain. Our Give Notice If Defendant
situation fails on two of the three points: defen-
Step 4 Has Appeared
dants have appeared (filing the motion to dismiss
constitutes appearance), and the amount we are The motion to dismiss filed on behalf of Dr. and Mrs.
seeking is not a sum certain. Therefore, the clerk Collins constitutes an appearance, so, according to
cannot enter the judgment and our motion will have FRCP, Rule 55(b), we must give at least 3 days notice
to be directed to the court. of the default hearing, as is done in Figure W18–6.
Figure W18–4 Sample Entry of Default

DISTRICT OF ARIZONA

)
) NO. CV98-01456 PHX JL
Plaintiff, )
) ENTRY OF DEFAULT
v. )
)
corporation; )
)
Defendants. )
_______________________________________ )
Defendant having waived service of the summons and complaint pursuant to Rule 4(d), Federal
Rules of Civil Procedure, and having failed to answer plaintiff’s complaint, and the time allowed by law
for answering having expired, the default of defendant is hereby entered.
DATED this _____ day of __________, 20 ___.
Clerk of the United States

District Court for the
District of Arizona
Figure W18–5 Sample Entry of Judgment by Default
SIMON & PORTER

Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA

)
) NO. CV98-01456 PHX JL
Plaintiff, )
) APPLICATION TO COURT
v. ) FOR ENTRY OF FINAL
) JUDGMENT BY DEFAULT
corporation; )
Figure W18–5 Sample Entry of Judgment by Default, continued

)
Defendants. )
_______________________________________ )
Plaintiff applies to the Court pursuant to Rules 55(b)(2) and 54(b), Federal Rules of Civil Procedure,
for entry of final judgment by default, after notice and hearing, in favor of plaintiff and against
defendants Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins, and awarding
damages in favor of plaintiffs and against said defendants in an amount to be determined after hearing.
This application is made upon the ground that said defendants have failed to file an answer to
plaintiff’s complaint following the Court’s denial of said defendants’ Motion to Dismiss dated [date],
that the time for filing said defendants’ answer has expired, and that said defendants’ default was
entered on [date].
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
Figure W18–6 Notice of Application to Court for Entry of Final Judgment by Default
SIMON & PORTER
Allen Porter
(602) 555-4321
DISTRICT OF ARIZONA
)
) NO. CV98-01456 PHX JL
Plaintiff, )
) NOTICE OF PLAINTIFF’S
v. ) APPLICATION TO COURT
) FOR ENTRY OF FINAL
) JUDGMENT BY DEFAULT
corporation; )
)
Defendants. )
_______________________________________ )
Notice is hereby given that on [date], at [time], or as soon thereafter as counsel may be heard, at
the U.S. District Court for the District of Arizona, 230 North First Avenue, Phoenix, Arizona, Room 305,
the undersigned will make application to the court for final judgment by default against defendants
Arthur Collins and Jane Doe Collins, whose real name is Anne R. Collins. A copy of plaintiff’s Application
to Court for Entry of Final Judgment by Default accompanies this notice.
DATED this _____ day of __________, 20 ___.
SIMON & PORTER
Allen Porter
Hold Default Hearing If

Step 5 the Amount Claimed
Step 6 Tax the Costs
Is Not a “Sum Certain”
Once the judgment has been entered, the local rules
Shannon is suing for damages for a personal injury. give us 10 days in which to file a bill of costs. Local
Personal injury damages do not qualify as a sum Rule 2.19 of the U.S. District Court for the District of
certain. The value of Shannon’s claim cannot be de- Arizona states:
termined by computation from a contract or re-
ceipts or other objective sources. A judge or jury Costs shall be taxed as provided in Rule
54(d), Federal Rules of Civil Procedure. A party
will have to determine the amount to be awarded af-
entitled to costs shall, within ten (10) days after
ter hearing evidence. the entry of final judgment . . . file with the Clerk
The procedure for setting a hearing and ob- of Court and serve upon all parties, a bill of
taining a hearing date depends on the practices costs on a form provided by the Clerk, together
and customs of each court. Your instructor will in- with a notice of application to have the costs
form you of the procedures used in the courts of taxed. The notice of application to have the
your locality. costs taxed shall contain a date for taxation
(normally three (3) weeks after the date of filing
the bill of costs), which shall be secured from
Your Local Notes the Clerk. This bill of costs shall include a
_________________________________________________ memorandum of the costs and necessary
disbursements, so itemized that the nature of
_________________________________________________ each can be readily understood, and, where
available, documentation of requested costs in
all categories must be attached. The bill of
At the hearing, Shannon must present sufficient costs shall be verified by a person acquainted
evidence to allow the judicial officer conducting the therewith.
hearing to fix the amount of the judgment. How In a default situation, the costs to be taxed are
much evidence and in how much detail? If the hear- relatively few, since little has happened in the law-
ing were to proceed without opposition by defen- suit to generate any costs. A sample form is shown
dants—if Dr. Collins’s attorney did not file any opin Figure W18–7. You should fill out this form as an
position or attend the hearing—Shannon’s exercise.
evidence could be quite perfunctory. It would prob-
ably be sufficient for Shannon herself to take the
stand and relate the total amount of her medical ex-
penses and other quantifiable losses, briefly de-
Obtaining a Default Judgment:
scribe her injuries, and state on the record her be- Learning by Doing
lief that the total amount claimed is reasonable and
appropriate compensation for the pain and suffer- In this assignment, you will prepare the paperwork
ing that she experienced. The judicial officer pre- to obtain a default judgment. Assume the following
siding over the hearing would then state her find- hypothetical facts:
ings on the record, and sign the judgment. You are a paralegal in the office of Allen
Under the facts of our hypothetical, however, Porter, attorney for plaintiff Shannon Martin.
it is a virtual certainty that Dr. Collins’s attorney Allen Porter’s firm has its offices in your city.
would take steps to oppose the default. He would For this workshop, your instructor will
doubtless begin by moving to set aside the entry designate either the U.S. district court having
of default. If he failed to get the entry of default set jurisdiction over your locality or the county
aside and could not avoid a default hearing, he trial court of your county. In the exercises that
would file an opposition to plaintiff’s application follow, “your local court” refers to the court
for judgment by default and would litigate the is- specified by your instructor. Assume that the
hypothetical lawsuit, Martin v. Collins, is
sue of damages. In that case, the default hearing
pending in the court specified by your
would become the equivalent of an actual trial— instructor.
perhaps even a jury trial—for the purposes of as-
sessing the amount of plaintiff’s damages. The Shannon’s complaint was served on defendant
court would, of course, reset the hearing to an- Park Hotels Group, Inc., on April 17 of the current
other date and time since a full-blown trial on year. Service was accomplished by having a
damages would require much more time than a process server deliver a copy of the summons and
routine default hearing. complaint to Park Hotels’ designated statutory
Figure W18–7 Sample Bill of Costs

agent in Delaware. It is now the first Monday in 5. (Step 3) Assume that the clerk has now en-
June, and no answer has been received. Allen tered the default. Prepare the application for
Porter assigns you to analyze the situation and, if judgment by default.
appropriate, prepare default papers. 6. (Step 4) Decide whether notice to defendant
is required and, if so, prepare the notice. Write
EXERCISES a short memo to the file stating whether you
are giving notice and why. Include citations to
applicable rules.
shop. 7. (Step 5) Decide whether a hearing will be re-
quired. Write a short memo to the file summa-
1. If your instructor has chosen your local state
rizing your conclusions. Include citations to ap-
court as the court for this assignment, iden-
plicable rules. If you conclude that a hearing is
tify the state court rules governing default
required, briefly state in your memo what evi-
procedure.
dence should be presented at the hearing.
2. Look for any local rules affecting entry of de-
8. Prepare a judgment suitable for signature by
fault, entry of default judgment, or taxation of
the judge at the completion of the default hear-
costs. Write a short memo to your supervising
ing. Consider whether “FRCP, Rule 54(b), lan-
attorney summarizing your findings.
guage” is required; draft the judgment accord-
3. (Step 1) Determine the due date for the an- ingly and write a short memo to the file stating
swer. Apply the appropriate tests to analyze what you concluded and why.
whether Park Hotels is in default. Write a
9. (Step 6) Obtain a bill of costs form suitable for
short memo to your supervising attorney de-
use in the court designated by your instructor.
scribing your findings and recommending
(At your instructor’s option, you may use the
what should be done next. Include citations to
standard bill of costs form for use in federal dis-
applicable rules.
trict courts. This may be found on the Internet
4. (Step 2) Assume that Allen Porter has read on the “forms” page of the U.S. District Court for
your memo from the preceding step and has the Northern District of Texas. Go to www.txnd.
discussed your findings with Shannon. The de- uscourts.gov and follow the “forms” link.) Fill in
cision has been made to seek a default judg- the form as appropriate, using dollar figures for
ment. Prepare the filings necessary to have the filing fees that are accurate for the court desig-
clerk of the court enter the default. nated by your instructor.
PRACTICE POINTERS
Wrapping Up after Trial
However tempting it might be to simply pack up the files, the trial note-
books, and the boxes of documents and put them in storage after the trial is
over, your work is not yet done. The case is not necessarily over—the oppos-
ing party may file post-trial motions or an appeal—and what you thought was
behind you may come back to haunt you again. Therefore, it is imperative that
you reorganize everything, returning it to pretrial order. Doing this now, while
the case is still fresh in your mind, will save you and your attorney time if you
have to reopen the files to prepare an appellate brief or do whatever else
might need to be done.
In this process be sure you locate copies of all the exhibits introduced by
all parties during the trial, collect all of the trial notes and organize them in a
folder, find any research done before or during the trial and place it in a sepa-
rate folder, and make sure you have copies of all the deposition transcripts
you relied on during the trial. Download all the computer files and mark each
tape or floppy disk with the case name.
Once this reorganization is complete, prepare a memo for the file. In it in-
clude the name and phone number of the court reporter who prepared the
trial transcript (in case you need to order a transcript), the results of any
polling of the jury, and an inventory of what is contained in each newly packed
box (including the location of the most important documents and the com-
puter tapes or disks as well as the information they contain).
TECHNO TIP
If you have already done the asset search pose a judgment lien on the debtor’s
referred to in the Techno Tip for Chap- real property. You must check your state
ter 8 you already have some of the in- rules regarding authentication of an
formation necessary to begin collection out-of-state judgment before it can be
on the judgment. Since there is no na- recorded. Most states consider the judg-
tional depository for judgments (other ments entered in any other jurisdiction
than child support orders), it is neces- as a “foreign” judgment and require
sary to record your judgment in each certain procedures to be accomplished
county where you believe the judgment prior to recognizing their validity.
debtor has property if you wish to im-
FORMS FILE
Summarize the rules in your jurisdiction regarding the entry of a

judgment, the obtaining of a default judgment, and the taxing of costs.
Include copies of a bill of costs form and all the affidavits and other
forms associated with obtaining a default judgment in your forms file.
KEY TERMS
Bill of costs Res judicata Trial to the court

Prevailing party Taxation of costs
Ethics in Litigation WORKSHOP
19
INTRODUCTION: IMPORTANCE WHERE DO ETHICAL
OF ETHICS STANDARDS COME FROM?
In the preceding eighteen workshops, we have ex- What are these rules that determine whether a
amined most of the procedural weapons available lawyer’s conduct is ethical or not? Each state has its
to litigators and litigation paralegals, and we have own set of rules, but all follow an established pat-
considered how and when each might best be tern. The American Bar Association publishes the
used to help us win a lawsuit. Along the way, we Model Rules of Professional Conduct, a set of sug-
have attempted to point out some of the ethical gested ethical rules that was approved by the ABA
dilemmas that arise in litigation, but our main fo- House of Delegates after exhaustive study by a com-
cus has been on questions of “how to” rather than mittee of eminent legal scholars. The ABA rules
“whether to.” have no official status in and of themselves, but
In this final workshop we turn our attention ex- many states have adopted rules of professional con-
plicitly to the ethical side of litigation. We dispense duct closely patterned after the ABA model rules.
with our usual step-by-step formula and instead ex- Our discussion in this workshop will be based on
amine, through the use of discussion hypos, several the ABA model rules. Your instructor will inform you
situations that arise often in litigation and that raise of any important differences between the ABA
difficult ethical issues. We make no pretense of com- model rules and the rules governing the profes-
prehensive coverage of the law of ethics; that is a sional conduct of lawyers and paralegals in your
task best left for an ethics text. We cannot become state, and will tell you where to find the rules for
experts on the law of ethics in one workshop, but we your state.
can begin developing an ethical “sense of smell”—
an instinct for recognizing when we are about to en- Your Local Notes
ter ethically questionable territory.
_________________________________________________
In our view, there is no more important skill for
a litigation paralegal. _________________________________________________
WHAT IS ETHICS AND HOW DOES

IT CONNECT TO LITIGATION? CONSEQUENCES OF BREAKING
THE RULES
Ethics is another of those words whose meaning as
a legal term is different from its meaning in every- Each state has a system for enforcing its ethical
day speech. In ordinary usage, ethics and morality rules. Typically, the primary mechanism for en-
are closely related concepts. Legal ethics, on the forcement is a disciplinary proceeding against the
other hand, is a subject having essentially nothing attorney who is accused of violating the rules of
to do with morality. The law judges the conduct of ethics, administered (at least in the initial phases)
lawyers and paralegals, not by any moral stan- by the state’s bar association. Each state has its own
dards, but by an explicit set of rules of profes- rules and procedures for investigating complaints
sional responsibility. For example, many people against attorneys and, if appropriate, administering
would consider it immoral to foreclose on widows punishment.
and orphans, seize their homes, and throw them The punishment meted out to an attorney who
into the street, but bank lawyers do such things is found to have violated the rules of ethics can
routinely, and without violating the rules of ethics. range from mere censure—in effect, an official
On the other hand, it is hard to see anything im- scolding—to disbarment and permanent loss of the
moral about, say, a lawyer sharing a fee with a license to practice law. Another option is suspen-
paralegal who helps with the case, but doing so sion—prohibition from practicing law for a speci-
clearly violates the rules of ethics in most juris- fied period of time.
dictions (there is a rule against fee splitting with a You may be wondering, what do bar association
nonlawyer). rules of ethics have to do with you as a paralegal?
606 WORKSHOP 19 Ethics in Litigation
Paralegals are not members of the bar, and the bar In some ways, paralegals are subject to even more
has no direct power to administer discipline against ethical regulation than attorneys. In addition to their
a paralegal. Although a few states have studied the obligation to comply with the rules of attorney ethics,
idea of licensing paralegals through the state bar as- paralegals must also concern themselves with state
sociation, in the same way that attorneys are li- law restrictions on unauthorized practice of law. Also,
censed, such proposals have so far not succeeded. paralegals who belong to the National Association of
This does not mean, however, that paralegals Legal Assistants, the organization that administers
are exempt from ethical standards. It simply means the popular Certified Legal Assistant credential, are
that current ethical rules place the responsibility for subject to the NALA code of ethics for paralegals, and
a paralegal’s conduct on the supervising attorney can have their CLA certification revoked for violating
and, to some extent, on the partners of the employ- it. (You can access the NALA code of ethics on the In-
ing law firm. ABA Model Rule 5.3 states: ternet at NALA’s web site, www.nala.org by following
the “standards” link.)
With respect to a nonlawyer employed or
retained by or associated with a lawyer:
(a) a partner in a law firm shall make reason- Your Local Notes
able efforts to ensure that the firm has in ef- _________________________________________________
fect measures giving reasonable assurance
_________________________________________________
that the person’s conduct is compatible
with the professional obligations of the
lawyer;
(b) a lawyer having direct supervisory author- ETHICAL RULES FOR LITIGATORS
ity over the nonlawyer shall make reason- AND LITIGATION PARALEGALS
able efforts to ensure that the person’s con-
duct is compatible with the professional Our project for this workshop consists of analyzing
obligations of the lawyer; and several hypothetical fact situations and making rec-
(c) a lawyer shall be responsible for conduct of ommendations. To analyze the hypotheticals, we
such a person that would be a violation of will need a basic familiarity with the pertinent ABA
the Rules of Professional Conduct if en- model rules (or the corresponding rules regulating
gaged in by a lawyer if: the conduct of lawyers and paralegals in your state).
(1) the lawyer orders or, with the knowl- The ABA model rules cover a variety of topics. Many
edge of the specific conduct ratifies the of the model rules regulate matters that are not spe-
conduct involved; or cific to litigation, such as lawyer advertising or fee
(2) the lawyer is a partner in the law firm in setting. We, however, will limit ourselves to the rules
which the person is employed, or has that we regard as most pertinent to the situations
direct supervisory authority over the typically confronted by litigation paralegals.
person, and knows of the conduct at a Not all of the ethical principles that we are con-
time when its consequences can be cerned with come from the rules of ethics. The Fed-
avoided or mitigated but fails to take eral Rules of Civil Procedure also contain provisions
reasonable remedial action. that have ethical implications, and perhaps the
most important source of ethical guidance is not in
Therefore, in a roundabout way, paralegals are sub- any book—it is your own instinct for discerning
ject to the same ethical rules as attorneys. As ABA what is reasonable and what is not. Working litiga-
Model Rule 5.3(c) indicates, if a paralegal engages in tors and litigation paralegals do not have time to re-
conduct that would be a violation for an attorney, search ethics opinions continually as they go about
the potential exists for the paralegal’s supervising their duties—staying out of ethical trouble is mainly
attorney, as well as the partners of the firm, to be a matter of good habits and common sense. In that
held responsible. Moreover, disciplinary proceed- vein, we begin our discussion of the ethics rules by
ings are not the only threat; certain kinds of mis- offering our own Top Ten list of ethical do’s and
conduct by paralegals may lead to malpractice suits don’ts for litigation paralegals, after which we will
against the law firm. It is easy to see that lawyers examine some specific rules limiting the tactics that
and law firms have a strong incentive to ensure that we can use against an opposing party.
paralegals in their employ comply with the rules of Here are the ten ethical commandments for liti-
ethics. In reputable firms, a knowing ethical viola- gation paralegals.
tion by a paralegal leads to exactly the same conse-
quences as a knowing ethical violation by an attor- Commandment 1: Never Talk about Client
ney: instant unemployment. Business—Consulting a lawyer is in some ways like
WORKSHOP 19 Ethics in Litigation 607
confessing to a priest: The expectation exists that liver. According to the ABA comment to Model Rule
whatever is said will go no further. ABA Model Rule 1.3: “A lawyer’s workload should be controlled so
1.6 states: that each matter can be handled adequately.”
Learn to say “no.” Be scrupulous about not al-
(a) A lawyer shall not reveal information lowing yourself to be pressured into promising the
relating to representation of a client
impossible. And if you do find yourself unable to
unless the client consents after
consultation except for disclosures that meet a promised completion date, immediately
are impliedly authorized in order to contact the person to whom you made the
carry out the representation, and except promise and let them know that you will be late—
as stated in paragraph (b). and set a new completion date that you are sure
you can meet.
[The exception covered by paragraph (b), deals
with situations in which it is proper for a lawyer to Commandment 3: Keep the Client In-
divulge client confidences—for example, to prevent formed—Another common cause of bar com-
a client from committing a serious crime. Although plaints is lack of communication. Clients are paying
interesting to ethicists, such situations are exceed- substantial fees for our services, and they expect to
ingly rare in practice. In more than 50 combined be kept abreast of what is going on in their cases.
years of litigating, none of the authors has yet had ABA Rule 1.4 makes this mandatory: “A lawyer shall
occasion to “blow the whistle” on a client.] keep a client reasonably informed about the status
On the other hand, we have seen paralegals fired of a matter and promptly comply with reasonable
for talking about client business. Notice that ABA requests for information.”
Model Rule 1.6 goes further than merely prohibiting Apart from being ethically required, good client
us from divulging information given us by the communication is simply good business. One easy
client—it prohibits us from revealing any informa- way to keep clients informed of what is going on—
tion about the representation. What does this mean? and one that pays rich dividends in terms of client
It means that we do not talk about any aspect of the satisfaction—is to make it a habit to copy the client
client’s legal business—even information that is pub- on everything (after getting your supervising attor-
lic knowledge—except as necessary to carry out the ney’s approval, of course). When you write a letter,
tasks assigned to us. We do not talk about the client’s file a paper with the court, receive a paper from op-
business to our spouse, to our friends, to other para- posing counsel, send the client a copy. This habit
legals. We do not swap interesting anecdotes about will also improve the spirit in which bills are re-
our cases, even without mentioning names. ceived because it gives clients a tangible sample of
what they are paying for.
Commandment 2: Never Overpromise (Espe-
cially to Clients)—ABA Model Rule 1.3 states: “A Commandment 4: Paper the File—By “paper
lawyer shall act with reasonable diligence and the file” we mean get in the habit of writing con-
promptness in representing a client.” Although we firming letters, case notes, and memos to the file.
have no statistics to offer, in our experience “dili- Litigation files have a section for attorney notes.
gence” and “promptness” issues lead to more bar Whenever you do something relating to a case,
complaints than any other cause. Diligence means make notes of what you did and date them. When
making sure that everything that needs to be done you speak to the client, make a note of what you
in a case is being done and done on time. It also said. If your duties include contact with the oppos-
means keeping promises made to clients and oth- ing lawyer or paralegals concerning anything in-
ers, especially promises to complete a task by a volving extensions, deadlines, or other promises by
specified time. either side, send confirming letters. We cannot cite
Most people are not late completing tasks be- an ABA model rule requiring you to do these
cause they are lazy; they are late because they have things—this commandment is based on painful ex-
promised to do more than they are able to do. Good perience (gained, fortunately, as the attorney, not
litigators and paralegals are always under pressure the person accused). Losing a lawsuit is often a
to accept more work and to commit to unrealistic wrenching experience for clients, and they some-
deadlines. It is easy to find oneself constantly work- times react by looking for someone to blame. If
ing in disaster avoidance mode, going from crisis to someone ever does accuse you of ethical impropri-
crisis, and letting less important tasks slide until ety, you will need to be able to prove exactly what
they, too, reach crisis proportions. happened. You will be in a far better position if you
Lawyers and paralegals have an ethical respon- can point to documentation in the file to back up
sibility to avoid promising more than they can de- your version of the facts.
Commandment 5: If It Does Not Pass the or an affidavit, which is a violation of FRCP, Rule 11,
Smell Test, Think Again—Sometimes a course of an act of criminal perjury. You might also feel the
action presents itself that, upon analysis, does not temptation to bend the rules on your own. Say, for
seem to violate any rule of ethics or other law that example, you dropped the ball and missed a re-
we can think of, yet an inner voice tells us that there sponse deadline, but you could cover up your mis-
is something wrong. Wise litigators learn to heed take by back-dating the certificate of mailing to
these subliminal warnings. When the alarm bells make it appear that the paper was timely served.
are going off in your head, it is often because you Or you may be assigned to take an action in a law-
have subconsciously remembered a case or made a suit that you know is prohibited by the rules of
connection that has escaped your conscious aware- ethics (see the Ethical Limits on Litigation Tactics
ness. Either back away or research the issue until section later in this workshop).
you can put your finger on whatever it is that is Never yield to the temptation to cheat, even in
bothering you. seemingly minor ways. Your reputation will follow
you forever.
Commandment 6: Know Your Limitations—It
may surprise you that the very first of the ABA model Commandment 9: Do Not Give Legal Advice—
rules, ABA Model Rule 1.1, states that “A lawyer shall In addition to complying with all of the ethical rules
provide competent representation to a client.” Surely governing the conduct of lawyers, paralegals must
that goes without saying? In fact, lawyers can be, and also take care not to run afoul of the prohibitions
often are, disbarred for incompetent representation against unauthorized practice of law. Each state has
of a client, and often the aggrieved client then follows its own laws on the subject; your instructor will in-
up by suing the lawyer for malpractice. What this rule form you about whether your state has any provi-
means to you as a paralegal is, above all, know your sions specifically regulating what paralegals may do
limitations. When lawyers—and paralegals—get into in litigation. The National Association of Legal Assis-
trouble over competence issues, the reason, almost tants publishes guidelines outlining the kinds of
by definition, is that they have involved themselves in tasks that paralegals should, and should not, be as-
work for which their training and skills are not ade- signed (available on the Internet at www.nala.org; fol-
quate. When in doubt about how to handle a task, do low the “standards” link).
not wing it; consult your supervising attorney for Of the listed acts, the one that most often gets
guidance. paralegals in trouble is giving legal opinions or ad-
vice. Why? In a well-managed firm, paralegals are
Commandment 7: Be Zealous on Behalf of not put in positions where there is any opportunity
Your Client and Do Your Best to Win—As the to establish attorney–client relationships, set fees,
ABA comment to Model Rule 1.3 makes clear, we or represent clients in court. They are, however,
have an ethical obligation to “go to the mat” for our necessarily in contact with clients, and clients in-
clients: evitably have questions and want advice. Giving a
client advice that turns out to be wrong—especially
A lawyer should pursue a matter on behalf if the wrong advice is perceived to harm the client’s
of a client despite opposition, obstruction or
case—is a sure ticket to a stern reprimand or worse.
personal inconvenience to the lawyer, and may
take whatever lawful and ethical measures are The ability to distinguish between questions that
required to vindicate a client’s cause or can be legitimately answered (i.e., factual questions
endeavor. A lawyer should act with commitment such as “Has the answer been filed yet?”) and ques-
and dedication to the interests of the client and tions that call for legal advice or opinion (i.e., ques-
with zeal in advocacy upon the client’s behalf. tions like “How should I testify about X?”) is a skill
[Emphasis added]. that comes with experience. Meanwhile, if in doubt,
pass the buck to your supervising attorney when a
There are, of course, limits—see Commandment 8.
client asks you to offer an opinion about some as-
pect of the case.
Commandment 8: Never Knowingly Bend
the Rules or the Law for a Client—You may
sometimes find yourself under pressure from a
Your Local Notes
client, or even—sadly—an attorney, to take some
action that you know is a violation of the rules of _________________________________________________
procedure or, worse, a criminal infraction. For ex-
_________________________________________________
ample, you may be asked to make what you know
to be an untrue statement in a discovery response
Commandment 10: If in Doubt, Consult Your Rule 11, provides that, by presenting a pleading, mo-
Supervising Attorney—In the end, if there are dif- tion, or similar paper to the court, an attorney is au-
ficult ethical decisions to make, it is the supervising tomatically certifying that it meets the standards set
attorney who should make them, not the paralegal. forth in Rule 11(b). FRCP, Rule 26(g), provides for a
This does not mean that you are free to engage in be- similar “implied certification” with respect to dis-
havior that you know is unethical or improper sim- covery requests, responses, and objections. We dis-
ply because a supervising attorney has authorized cuss the specific standards imposed by FRCP, Rules
it. The “I was just following orders” defense rarely 11 and 26(g), under the appropriate topics later. Be-
succeeds. However, your supervising attorney is cause only an attorney can sign a pleading or pre-
likely at least as eager as you are to stay out of ethi- sent a paper to the court, these provisions, and the
cal trouble and is your first and best source of ad- punishments for violating them, apply only to attor-
vice when you are unsure of the ethical implications neys. However, a paralegal who carelessly or im-
of a proposed action. properly prepares a paper that the attorney later
signs, and thereby subjects the attorney to sanc-
ETHICAL LIMITS ON tions under FRCP, Rule 11 or 26(g), should expect to
LITIGATION TACTICS share in the unpleasantness that will surely follow.
The hypotheticals that we present later in this work- Lying to the Court—It goes without saying, we
shop are intended to explore the ethical limits on the hope, that reputable lawyers and paralegals do not
kinds of tactics that we can use against opposing deliberately lie to judges. If this is not obvious, ABA
parties. We are, of course, ethically bound to do our Model Rule 3.3(a)(1) makes it explicit: “A lawyer
best to win our clients’ cases. We have already seen shall not knowingly . . . make a false statement of
that the ABA comment to Model Rule 1.3 encourages material fact or law to a tribunal.” (Tribunal is the
us to take “whatever lawful and ethical measures are word that the ABA model rules use to refer to the
required to vindicate a client’s cause or endeavor.” court or to any other adjudicative officer such as an
As the foregoing comment implies, however, administrative law judge.)
there are limits beyond which we cannot go in advo-
cating our clients’ causes, even if the fate of the law- Presenting False Evidence—Similarly, it is un-
suit hangs in the balance: We may not act in ways ethical for a lawyer to knowingly present false evi-
that are not “lawful and ethical.” These limits are not dence to the court. ABA Model Rule 3.3(a)(4) states:
always easy to apply. We do not want to win by cheat- “A lawyer shall not knowingly . . . offer evidence that
ing, but neither do we want to lose through excessive the lawyer knows to be false.” Furthermore, “If a
caution. It is therefore crucial for litigators and liti- lawyer has offered material evidence and comes to
gation paralegals to know exactly where the ethical know of its falsity, the lawyer shall take reasonable
lines are (and, of course, to stay within them). remedial measures.” Id.
We will now try to list some of the things that we In real life, of course, it is rare that we “know” any
may not do in litigation. Many of the prohibitions are fact with absolute certainty. As a practical matter,
unsurprising and involve conduct that you would, the situation that most commonly raises concerns
we hope, reject on the basis of common sense alone. about false evidence issues is the one that arises
Others, such as the restrictions on contacting wit- when a client tells the lawyer one version of the facts,
nesses who are employed by a corporate opposing and later wants to testify to a materially different ver-
party, are less obvious and more technical in nature. sion. If, upon close questioning, the client insists that
The sources for the ethical restrictions that we the revised version is the truth, the lawyer cannot
discuss are the ABA model rules and the Federal know that it is false simply because the client told a
Rules of Civil Procedure. You will notice that the different story at another time. Unless the amended
ABA model rules often begin with the phrase, “A story is so preposterous as to be unbelievable, most
lawyer shall not. . . .” It will come as no surprise that trial lawyers would probably let the witness testify.
what lawyers cannot do themselves, they cannot do Even though the lawyer is not required to refuse
indirectly by having a paralegal perform the prohib- to present evidence when he reasonably suspects
ited act. ABA Model Rule 5.3 makes a lawyer re- that it is false, but does not know of a certainty, ABA
sponsible for known conduct of a paralegal that Model Rule 3.3(c) gives the lawyer the option of re-
“would be a violation of the Rules of Professional fusing: “A lawyer may refuse to offer evidence that
Conduct if engaged in by a lawyer. . . .” the lawyer reasonably believes is false.”
The ethical principles that we will draw from the
Federal Rules of Civil Procedure arise from the certi- Asserting Unmeritorious Claims and Con-
fication provisions of FRCP, Rules 11 and 26(g). FRCP, tentions—Not only do the rules of ethics prohibit us
from knowingly presenting false evidence, they also dant does not know whether or not the fact is true,
prohibit us from asserting claims or defenses that we defendant is free to deny it. But if defendant’s attor-
know are unsupportable. ABA Model Rule 3.1 states: ney, after the reasonable inquiry required by FRCP,
Rule 11, does know that the fact alleged by plaintiff
A lawyer shall not bring or defend a
is true, the answer must admit it.
proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that
is not frivolous, which includes a good faith Citing Controlling Authority—“Legal argument
argument for an extension, modification or based on a knowingly false representation of law
reversal of existing law. . . . constitutes dishonesty toward the tribunal. A
lawyer is not required to make a disinterested ex-
FRCP, Rule 11(b)(2), further provides that by position of the law, but must recognize the exis-
presenting a pleading, motion, or other paper, a tence of pertinent legal authorities,” so states the
lawyer certifies to the court that “the claims, de- ABA comment to ABA Model Rule 3.3(a)(3).
fenses, and other legal contentions therein are war- Normally, in legal arguments in a lawsuit, each
ranted by existing law or by a nonfrivolous argu- side aggressively asserts its own position. If the op-
ment for the extension, modification, or reversal or posing attorney has overlooked case law that could
existing law or the establishment of new law.” Rule have been used to attack our position, well and
26(g) provides similarly with respect to discovery good—surely it is not up to us to straighten him or
papers. (Why is it necessary to say essentially the her out? True in general, but not if the overlooked
same thing twice, once in the rules of ethics and authority is both (1) in the controlling jurisdiction
again in FRCP, Rule 11? Because rules of ethics are and (2) directly adverse to our position. ABA Model
enforced via bar discipline, which is often glacially Rule 3.3(a)(3) states: “A lawyer shall not knowingly
slow and unevenly applied, while FRCP, Rule 11, al- . . . fail to disclose to the tribunal legal authority in
lows the judge to impose immediate punishment if the controlling jurisdiction known to the lawyer to
appropriate.) be directly adverse to the position of the client and
FRCP, Rule 11, also implies a certification that not disclosed by opposing counsel. . . .”
any claims presented to the court have a reason- The “controlling jurisdiction” means a source of
able basis in fact. By filing a pleading, the attorney authority that our court regards as binding. If our
certifies that “the allegations and other factual con- lawsuit is pending in state court, “controlling juris-
tentions have evidentiary support or, if specifically diction” includes the appellate courts of the same
so identified, are likely to have evidentiary support state, but not the federal courts or the courts of
after a reasonable opportunity for further investi- other states. If our lawsuit is in federal district
gation or discovery . . .”; see FRCP, Rule 11(b)(3). court, “controlling jurisdiction” includes the U.S.
If plaintiff’s attorney is ethically bound to en- Court of Appeals for the circuit in which our district
sure that the complaint alleges only meritorious le- court is located, the U.S. Supreme Court, and possi-
gal theories and facts supportable by evidence, bly the state appellate courts of the state in which
what about defendant’s attorney? Is not defendant’s the district court sits, to the extent the suit involves
attorney free to deny everything and make plaintiff claims based on state law.
prove every point? At least in theory, no. ABA
Model Rule 3.1 allows a defense attorney in a crimi- Duty to Respond Properly to Discovery—Both
nal proceeding to make the prosecutor dot every i in traditional discovery and in discovery based on
and cross every t: “A lawyer for the defendant in a mandatory disclosure, there is an ethical duty to
criminal proceeding . . . may nevertheless so defend disclose the facts completely and accurately. ABA
the proceeding as to require that every element of Model Rule 3.4(d) states: “A lawyer shall not . . . fail
the case be established.” to make reasonably diligent effort to comply with a
In a civil lawsuit, however, defendant’s answer legally proper discovery request by an opposing
is subject to FRCP, Rule 11, and the Rule 11 certifi- party. . . .” FRCP, Rule 26(g)(1), provides that by
cation extends even to denials made in defendant’s signing a disclosure statement, an attorney certifies
answer. The defense attorney filing an answer certi- to the court that “to the best of the signer’s knowl-
fies that “the denials of factual contentions are war- edge, information, and belief, formed after a rea-
ranted on the evidence or, if specifically so identi- sonable inquiry, the disclosure is complete and cor-
fied, are reasonably based on a lack of information rect as of the time it is made.”
or belief”; see FRCP, Rule 11(b)(4). FRCP, Rule 11(b),
requires the attorney to make “an inquiry reason- Tampering with Evidence—It will come as no
able under the circumstances. . . .” Therefore, if surprise that the rules of ethics prohibit evidence
plaintiff alleges a fact in the complaint, and defen- tampering. ABA Model Rule 3.4(a) states:
A lawyer shall not . . . unlawfully obstruct Witness Tampering and Dealings with Third-
another party’s access to evidence or Party Witnesses—If we were unscrupulous, an ob-
unlawfully alter, destroy or conceal a document vious way to improve our chances of winning would
or other material having potential evidentiary be to engineer the testimony of nonparty witnesses.
value. A lawyer shall not counsel or assist Several of the rules of ethics seek to forestall such
another person to do any such act. . . .
tactics, and, of course, serious witness tampering is
a crime.
Improper Communications with an Opposing Needless to say, it is unethical to attempt to in-
Party—We are not permitted to communicate di- duce a witness to lie. ABA Model Rule 3.4(b) states:
rectly with the opposing attorney’s client. The “A lawyer shall not . . . falsify evidence, counsel or
lawyer for one party must channel all communica- assist a witness to testify falsely, or offer an induce-
tions about the case through the other party’s at- ment to a witness that is prohibited by law. . . .”
torney. ABA Model Rule 4.2 states: It is also a federal crime—subornation of per-
In representing a client, a lawyer shall not jury—to attempt to influence a witness to lie under
communicate about the subject of the oath in a proceeding in federal court. 18 U.S.C.
representation with a party the lawyer knows to § 1622 provides:
be represented by another lawyer in the matter, Whoever procures another to commit any
unless the lawyer has the consent of the other perjury is guilty of subornation of perjury, and
lawyer or is authorized by law to do so. shall be fined under this title or imprisoned not
(Model Rule 4.2 does make an exception where the more than five years, or both.
“consent of the other lawyer” is given; however, no Subornation of perjury is also a crime under the
competent litigator would ever willingly allow a laws of each state.
client to communicate with the opposing attorney Bribing a witness is, of course, also a crime; see
outside her presence.) 18 U.S.C. § 210(b)(4). And 18 U.S.C. § 1512(b) im-
For litigators, the main significance of the pro- poses criminal penalties on most other kinds of wit-
hibition against direct contact with the opposing ness tampering:
party is that it limits the kinds of investigation that
we can do when we are litigating against a corpora- Whoever knowingly uses intimidation or
tion or other entity. The comment to ABA Model physical force, threatens, or corruptly
persuades another person, or attempts to do
Rule 4.2 states:
so, or engages in misleading conduct toward
In the case of an organization, this Rule another person, with intent to . . . influence,
prohibits communications by a lawyer for one delay, or prevent the testimony of any person in
party concerning the matter in representation an official proceeding . . . shall be fined under
with persons having a managerial responsibility this title or imprisoned not more than ten years,
on behalf of the organization, and with any or both.
other person whose act or omission in
connection with that matter may be imputed to It is unethical for a lawyer to attempt to per-
the organization for purposes of civil or suade a nonparty witness not to testify, or to with-
criminal liability or whose statement may hold information from the opposing party, unless
constitute an admission on the part of the the witness is a relative or employee of the lawyer’s
organization. client. ABA Model Rule 3.4(f) states:
In other words, if the opposing party is, say, a cor- A lawyer shall not . . . request a person
poration, we must be careful not to attempt to in- other than a client to refrain from voluntarily
terview anyone having “managerial responsibil- giving relevant information to another party
ity” or anyone who was directly involved in the unless:
events giving rise to the lawsuit. In effect, as a (1) the person is a relative or an employee or
practical matter, the rule prohibits us from speak- other agent of a client; and
ing to anyone in the corporation who would be
likely to have any information of interest to us. (2) the lawyer reasonably believes that the per-
State law varies somewhat as to how far down the son’s interests will not be adversely affected
corporate hierarchy the prohibition extends, so, by refraining from giving such information.
in a case in which it is important to investigate a When contacting a nonparty witness, the
corporate opponent thoroughly, it will be neces- lawyer may not try to mislead the witness into
sary to conduct some research to establish the thinking that the lawyer is in a nonadvocative role.
boundaries clearly. ABA Model Rule 4.3 states:
In dealing on behalf of a client with a person reasonable efforts to expedite litigation consistent
who is not represented by counsel, a lawyer with the interests of the client.” By presenting a
shall not state or imply that the lawyer is pleading, motion, or other paper, an attorney certi-
disinterested. When the lawyer knows or fies to the court that “it is not being presented for any
reasonably should know that the unrepresented improper purpose, such as to harass or to cause un-
person misunderstands the lawyer’s role in the necessary delay or needless increase in the costs of
matter, the lawyer shall make reasonable efforts
litigation”; see FRCP, Rules 11(b)(1) and 26(g)(2)(B).
to correct the misunderstanding.
Under FRCP, Rule 26(g), when an attorney sub-
In general, when interviewing nonparty witnesses, mits a discovery request, he also certifies that the
the lawyer should forthrightly disclose his identity request is “not unreasonable or unduly burden-
and status. And if, as often happens, the witness some or expensive, given the needs of the case, the
asks questions of the lawyer, the lawyer should re- discovery already had in the case, the amount in
frain from giving any legal advice, other than for the controversy, and the importance of the issues at
witness to consult her own attorney. stake in the litigation.” ABA Model Rule 3.4(d) pro-
Attorneys are ethically bound to respect the vides similarly:
rights of nonparty witnesses. ABA Model Rule 4.4
A lawyer shall not . . . in pretrial procedure,
states: make a frivolous discovery request or fail to
In representing a client, a lawyer shall not make reasonably diligent effort to comply with
use means that have no substantial purpose a legally proper discovery request by an
other than to embarrass, delay, or burden a third opposing party. . . .
person, or use methods of obtaining evidence
that violate the legal rights of such a person. Improperly Influencing the Judge or Jurors—
All courts have strict rules governing communica-
What are the “methods of obtaining evidence that tions between attorneys and jurors. Contacting a ju-
violate the legal rights of” a witness? One practice ror before or during trial, whether by a lawyer or by
which, though undeniably tempting at times, is im- a paralegal employed by the lawyer, is a serious eth-
proper under the ethics rules of many states is that ical breach that will likely cause a mistrial and re-
of secretly tape recording a conversation or inter- sult in serious sanctions against the offender. Many
view with a witness. Although surreptitious taping federal district courts also have local rules restrict-
is not illegal under the laws of many states, espe- ing contacts by attorneys with jurors after the case
cially if done in person rather than over the tele- is concluded.
phone, a number of states have disciplined attor- Attempting to influence a juror improperly is, of
neys for engaging in the practice. For a course, unethical as well as criminally punishable
comprehensive survey of various states’ ethics in most jurisdictions. Similarly, lawyers are prohib-
rules on the subject, see Annot., Propriety of Attor- ited from influencing judges by means other than
ney’s Surreptitious Sound Recording Of Statements proper argument in court. In particular, except in
By Others Who Are Or May Become Involved In Lit- limited circumstances specified in the rules of pro-
igation, 32 A.L.R.5th 715 (1995), also available on cedure, it is improper for a lawyer to communicate
Westlaw. ex parte with the judge about a pending lawsuit,
that is, to communicate with the judge without the
Delaying Tactics and Escalation of Costs— opposing lawyer being present.
Many more lawsuits are settled than tried, and the ABA Model Rule 3.5 states:
high cost of litigation provides a strong motivation
to compromise. Obviously, one way to intensify the A lawyer shall not:
pressure on the opposing party to settle is to make (a) seek to influence a judge, juror,
continued litigation as expensive as possible. And prospective juror or other official by
means prohibited by law; [or]
one way to make litigation more expensive is to
(b) communicate ex parte with such a
drag it out because, typically, the longer a lawsuit person except as permitted by law. . . .
takes, the more it costs. For defendants, there is a
further motivation to delay: As long as the lawsuit As you would expect, attempting to improperly
is still pending, defendant keeps the money that influence a federal court jury is also a federal crime.
plaintiff is suing for. Naturally, threatening or bribing a juror is an ex-
Nevertheless, the rules of ethics, as well as the tremely serious offense; but you can get 6 months
rules of procedure, clearly prohibit tactics whose in a federal prison for merely “writing or sending to
sole purpose is to cause delay or drive up costs. Ac- [a juror] a written communication” relating to the
cording to ABA Model Rule 3.2, “A lawyer shall make case; 18 U.S.C. §1503-04.
Improper Statements to the Press—The ethical cussion; but, of course, to participate effectively,
rules regulating communications with members of you will need to analyze them in advance. In doing
the press reflect an uneasy balance between the so, try to identify the ethical rules that apply in
free speech rights of the litigants and lawyers on each situation (there will often be more than one),
the one hand, and the repugnance with which most and also take into account your knowledge and ex-
judges regard trial publicity. The basic standard is perience with real litigation and litigators. To the ex-
expressed in ABA Model Rule 3.6: tent that the rules do not seem to square with real
life, try to discover why.
(a) A lawyer shall not make an extrajudicial
statement that a reasonable person would Hypo 1: The Lawsuit as a License to Fish—The
expect to be disseminated by means of public federal Age Discrimination in Employment Act, 14
communication if the lawyer knows or
U.S.C. §621 et seq., makes it unlawful for an employer
reasonably should know that it will have a
substantial likelihood of materially prejudicing to discriminate against employees or prospective
an adjudicative proceeding. employees on the basis of age if they are between the
ages of 40 and 70. An employee or prospective em-
Press contact is a minefield for litigators. The ployee who is discriminated against in violation of
ethical rules governing it are complex and exacting. the act has the right to sue the employer for damages
(If you doubt this, read the rest of ABA Model Rule (after first complying with some administrative pre-
3.6, which takes up two pages.) Press reports are requisites). It is possible to base an age discrimina-
unpredictable and sometimes inaccurate, and tion case on direct proof that a particular employ-
judges tend to be congenitally hostile to the idea of ment decision was motivated by improper
lawyers talking to reporters about pending cases consideration of the employee’s age. It is also possi-
under any circumstances. It is essential that any ble to prove age discrimination via statistics show-
contact with members of the press be carefully ing that employees in the 40 to 70 age group are
thought out, and it goes without saying that it is not treated less favorably than younger employees.
the job of the paralegal (or for that matter junior at- Ann Anderson, age 48, recently graduated from
torneys assisting with the case) to make decisions a top-ten law school. Although she ranked second
of this kind. There are no conceivable circum- in her class, she has had difficulty finding employ-
stances in which a paralegal should communicate ment with a law firm. She has interviewed with all of
with the press on any subject remotely connected the top firms in her city, but has received no offers.
to pending litigation. If you are ever contacted by a Her latest interview was with the prestigious 100-
reporter concerning one of your cases, our advice lawyer firm of Baker & Canfield; although the inter-
is to refer her to your supervising attorney, then po- view seemed to go well, the firm’s offer went to one
litely excuse yourself. of Ann’s classmates, a 26-year-old student whose
academic credentials were clearly inferior to Ann’s.
Your Local Notes In desperation, Ann asked the advice of one of
her favorite law school professors, Dave Dawkins.
_________________________________________________ Dawkins candidly explained to Ann (off the record,
_________________________________________________ of course) that large law firms all follow a policy of
hiring young lawyers directly out of law school. The
reason is that older beginning lawyers would be
ETHICS IN LITIGATION: perceived by their younger peers as having an un-
TOPICS FOR DISCUSSION fair advantage, which would create dissension and
resentment. Also, the cost of training a new lawyer
As you read the foregoing summary of ethics rules, is enormous, and law firms want their trainees to
you may have been struck by the impression that have long careers ahead of them so as to justify the
many of these standards seem at odds with the real expense. Dawkins suggests to Ann that she would
world of litigation. Many of the rules seem to con- be best advised to apply for a position with a gov-
flict with each other, and especially with the ernment agency.
lawyer’s duty under ABA Model Rule 1.3 to take all Ann instead retains prominent employment
appropriate measures to win the case for the client. rights lawyer Ed Epstein to sue Baker & Canfield for
We now give you an opportunity to explore the age discrimination. Ann makes it clear to Ed that
application of ethics rules to several commonplace she has no proof that Baker & Canfield discrimi-
situations that we regard as the most ethically trou- nated against her. Ed tells her not to worry, that he
blesome from a practical standpoint. The hypothet- will take discovery regarding Baker & Canfield’s em-
icals that follow are intended primarily for class dis- ployment policies and hiring statistics. If discovery
does not turn up enough evidence to go forward, Ed Hypo 3: The Ethics of Damages Engineering—
is sure that Baker & Canfield will agree to a volun- Larry Larsen is on his way home from work when he
tary dismissal, or perhaps even pay a small amount is rear-ended while stopped at a traffic light. Larry
to make the suit go away. is shaken up, but suffers no obvious injury.
Is Ed’s proposed strategy ethically permissible? The next day, one of Larry’s coworkers tells Larry
that he should go see an injury lawyer. The coworker
Hypo 2: The Lawsuit as an Interest-Free Loan— recommends the law office of Montague and Nichols,
Frank Forrester is seriously injured in a motor vehi- an accident injury firm whose advertisements appear
cle accident. The accident was witnessed by a group frequently on the local television station. Larry
of eight Catholic priests who happened to be stand- makes an appointment for that afternoon.
ing at the intersection waiting for the light to change Larry is interviewed by paralegal Oscar O’Malley.
so that they could cross the street, all of whom saw Oscar has Larry sign the firm’s standard retainer
the other driver, George Granger, run the red light at agreement. Oscar tells Larry that Larry ought to see
high speed while driving in the oncoming traffic lane. a doctor. Larry asks why—his neck is slightly stiff, but
George’s blood alcohol was measured at 0.28 per- otherwise he feels fine. Oscar explains that soft tissue
cent, nearly three times the legal limit. “whiplash” injuries sometimes do not manifest them-
Frank retains personal injury attorney Harriet selves fully until several days after the accident. Also,
Harris to represent him. Harriet is able to verify Oscar explains, the settlement value that an insur-
that George has a $500,000 liability policy with In- ance company assigns to an injury claim depends in
land Indelible Insurance Company. Frank’s med- large part on the total amount of the medical bills, so
ical bills amount to $40,000, and Harriet tells it is in Larry’s interest to receive as much medical
Frank that, in her opinion, his claim is worth treatment as can be reasonably justified.
about $250,000. Oscar makes an appointment for Larry to see Dr.
Harriet makes a settlement demand on Inland Peter Potter, M.D., a physician who specializes in ac-
Indelible for $260,000 (to leave some negotiating cident rehabilitation cases. Dr. Potter examines
room), which Inland Indelible turns down cold. Har- Larry, orders x-rays, and prescribes a 7-week course
riet files suit on Frank’s behalf. of physical therapy. Larry’s medical bills eventually
Jim Jernigan is a recent law school graduate total $2,300, and the other driver’s insurance com-
hired by Inland Indelible to defend insurance cases. pany settles Larry’s injury claim for $7,000.
Frank’s lawsuit is routed to Jim. Jim reviews the file Have any ethical rules been violated?
and writes a memo to Kathy Kowalski, the Inland In-
delible claims manager to whom he reports, esti- Hypo 4: The Ethics of Hiding the Ball—Quincy
mating the value of the claim at $250,000 and rec- Medical Devices Corp. manufactures an electronic
ommending that Inland Indelible offer to settle for heart pacemaker. Implanted surgically, the pace-
that amount. maker administers a periodic electrical pulse to the
Kathy rejects the recommendation and in- patient’s heart, stimulating it to beat at the proper
structs Jim to file an answer. When Jim asks her rate. Quincy’s pacemaker has been approved by the
why, she explains: Inland Indelible’s preference in FDA and is in wide use.
cases of this kind is to wait to settle until the suit Recently, claims have been made that Quincy’s
has progressed further. Inland Indelible earns an pacemaker is susceptible to malfunction if exposed
average 15% return on its investment portfolio, to a radio-frequency signal of a type emitted by cer-
she explains. The earnings on $250,000 would tain cellular telephones under the right conditions.
amount to $37,500 over the course of a year. It will A class action lawsuit has been brought on behalf of
easily take at least a year for Frank’s lawsuit to get all persons with Quincy pacemakers, claiming that
on the calendar for trial, and the cost of keeping the company was negligent in the design of its pace-
the suit going for that long will be far less than maker, and that its management knew or should
$37,500—merely the cost of having Jim file an an- have known about the claimed defect. An indepen-
swer and respond to a few discovery requests. It dent testing laboratory has tested the pacemaker
is a simple matter of economics, Kathy explains to and has confirmed that it can be made to malfunc-
Jim. She tells Jim to file the answer, do the mini- tion under certain unusual conditions.
mum amount of work necessary, and keep her Richard Roberts is a paralegal in the firm de-
posted—she will decide when it makes sense to fending the suit on behalf of Quincy. Quincy has de-
settle. nied any knowledge of any defect of the kind
What should Jim do? Can he ethically follow claimed. Richard is assigned to prepare answers to
Kathy’s instructions? interrogatories, one of which asks specifically for
Quincy to “identify each and every memo, letter, or accident which occurred when the brakes on Sally’s
other communication whose subject matter con- car suddenly failed. In the weeks before the acci-
cerns any occurrences of malfunctions in the dent, Sally had noticed that her brakes did not seem
Quincy pacemaker during clinical testing.” to be working as well as they usually did, and took
Quincy has delivered all of its records pertain- the car to Tom’s Auto Service to have the brakes
ing to the clinical trials of the pacemaker; these checked. Tom Turner, the mechanic, diagnosed the
comprise some fifty boxes of documents. Going problem and recommended replacement of an ex-
through the records, Richard finds a memo from pensive pump. Not wanting to spend the money,
one of the junior design engineers, addressed to Sally procrastinated.
Quincy’s chief engineer, expressing the opinion that Ursula Ulrich is a paralegal working for the at-
a malfunction observed in that day’s testing was torney who is defending Sally in the lawsuit. The
caused by the patient’s use of a cellular telephone, complaint alleges that “defendant had a duty to
and suggesting a design change to correct the prob- maintain her vehicle in a safe condition” and that
lem. With the memo is the chief engineer’s re- “plaintiff has been damaged as a proximate result of
sponse, rejecting the cellular telephone hypothesis defendant’s failure to maintain her vehicle in a safe
as unlikely and the design change as too costly. condition.” Ursula has been assigned to interview
When Richard found them, the memo and re- Sally and prepare a Rule 26(a) disclosure statement.
sponse were in a file marked “Atlanta Convention— FRCP, Rule 26(a)(1)(A), requires each litigant to dis-
Travel Expenses.” In addition to the memo and re- close “the name and, if known, the address and tele-
sponse, the file contained approximately fifty pages phone number of each individual likely to have dis-
of travel vouchers and hotel receipts. coverable information relevant to disputed facts
Richard replaces the memo and response in the alleged with particularity in the pleadings, identify-
file, placing them in the middle of a stack of receipts. ing the subjects of the information.”
He replaces the file in its box, which contains other Ursula explains the disclosure process to
files of expense records pertaining to the develop- Sally and tells her that Rule 26(a)(1)(A) requires
ment of the pacemaker. He answers the interroga- disclosure of the names of anyone having any in-
tory (as permitted by Rule 33, FRCP) as follows: formation pertinent to the allegations made in the
“The answer to this interrogatory may be derived or complaint. Ursula then tells Sally to be careful
ascertained from the business records of defendant, what she says, because if there are any witnesses
specifically fifty boxes of records pertaining to the who would be bad for Sally’s case, if she (Ursula)
development and clinical testing of the Quincy pace- knows about them, she will be obligated to dis-
maker marked boxes D-1 through D-50, which will be close them.
produced for plaintiffs’ review upon request. Sally therefore elects not to mention Tom Turner
Has Richard acted unethically? and his advice to replace the brake pump, and Ursula
prepares the disclosure statement accordingly.
Hypo 5: The Ethics of Mandatory Disclosure— Has Ursula acted appropriately?
Sally Sullivan has been sued as a result of an auto
PRACTICE POINTERS
Professionalism
The ethical canons and considerations are the legal profession’s attempt
to encapsulate the most critical rules of professionalism. As with any codified
law, however, these rules tend to represent the bottom line for the profession.
Mere adherence to them does not ensure that a member of the legal profes-
sion has attained a high standard of practice any more than an individual’s ad-
herence to the law of the state indicates that he is a model citizen. Profes-
sionalism requires more than avoiding a violation of the ethical code. It is a
way of conducting yourself that brings honor to the profession, that enhances
your sense of integrity, and that creates a sense of trust with all with whom
you come into contact.
continued
PRACTICE POINTERS
Professionalism continued
What kind of actions and behaviors does professional conduct entail? It

means being someone who does what you say you are going to do when you
say you are going to do it. If you say you are going to call on a certain day, you
do. If you promise to deliver something by a particular date, you do. If you
commit to taking on a project, you do it.
Legal professionals are civil at all times, no matter what the circum-
stances. They do not belittle or ridicule others and they do not harass their
opponents. They cooperate as much as possible in scheduling meetings and
court dates and are courteous about granting time extensions and continu-
ances when circumstances dictate their necessity. They actively seek ways to
ease the negotiation and litigation processes by trying to resolve matters as
expeditiously and fairly as possible. At the very least, they do nothing to fur-
ther antagonize their opposition. They advocate vigorously for their clients
but remain impeccably honest with the court and their opponents. In short,
they practice the Golden Rule of litigation and never do to another what they
would not want done to them.
Being a professional does not imply being a workaholic. The law is often
depicted as a “jealous mistress” and many a lawyer and paralegal have been
seduced by its never-ending demands. The healthy professional, however, has
a balanced life that denies neither family, friends, nor personal development.
Such a person also contributes to the well-being of the community by doing
pro bono (volunteer legal work) and public interest work. They also support
the profession as a whole by serving on committees, attending professional
meetings, and volunteering to organize and participate in workshops, confer-
ences, and seminars.
As paralegals strive to shape their place in the legal community, they
would be well advised to avoid the traps lawyers have fallen into. Seeds of dis-
content permeate the legal profession. They can be seen in the dispropor-
tionate numbers of lawyers experiencing problems with substance abuse,
marital crises, emotional instability, and other problems that reflect the
burnout and stress that has become characteristic of their profession. As
paralegals mold their professional image, they would do well to create a
model that reflects balance and integrity for their profession as well as com-
petence and skill.
TECHNO TIP
Although the rules have not yet been its web site conform to the rules of each
written, ethics and the Internet (and in- of those states? Can a web site be con-
tranets for that matter) need to be constructed in such a way as to be consid-
sidered prior to use of the Internet. Is- ered an attempt to solicit clients (often
sues abound about lawyer advertising forbidden) rather than provide infor-
and which state’s ethical rules apply to mation about the firm’s personnel and
a lawyer’s or law firm’s web site. Since available services?
the site is accessible from anywhere in The American Bar Association
the country could New York rules apply (ABA) Commission on Advertising is
to a California-based web site? If a ma- looking at these issues. Check the ABA
jor firm has lawyers that are licensed in web site for updates and policies re-
a total of twenty different states, must garding Internet advertising.
FORMS FILE
Include a copy of the code of professional conduct prepared by

NALA, NFPA, and your local paralegal organization (if they have
one) in your forms file. You might also consider including copies of
any significant legal opinions (or summaries of those opinions) relat-
ing to paralegals.
KEY TERMS
Disciplinary proceeding Tribunal

APPENDIX A
Answers to Practice Exams and Litigation

Lingo and Litigation Logistics Features
CHAPTER 1 32. T
33. T
34. T
Practice Exam 35. F
1. D 36. F
2. E 37. F
3. B 38. T
4. D 39. T
5. D 40. F
6. B 41. F
7. D 42. T
8. C 43. F
9. D 44. T
10. civil procedures 45. T
11. substantive law
12. civil action Litigation Lingo
13. injunction DOWN
14. judgment 1. litigate
15. jurisdiction 3. venue
16. venue 4. court
17. arbitrator 5. evidence
18. service 8. jurisdiction
19. pleadings 9. arbitrator
20. issue 10. injunction
21. documentary; testimonial ACROSS
22. trial, verdict 2. service
23. pleadings 6. issue
24. discovery 7. pleading
25. alternative dispute resolution 8. judgment
26. arbitrator; mediator 9. adjudicate
27. F 11. procedural
28. F 12. motion
29. F 13. mediator
30. F 14. ADR
31. F 15. concurrent
620 APPENDIX A
24. Federal Practice and Procedure by Wright and

Miller; U.S. Code Annotated; pocket parts
25. annotations; citations
26. local
27. T
28. T
29. F
30. F
31. T
32. T
33. F
34. T
35. F
Litigation Logistics 36. F
1. Elements of negligence 37. F
2. Time periods for filing complaint, answer, 38. F
doing discovery, etc. 39. T
3. Which courts have jurisdiction; venue 40. F
4. File complaint 41. T
5. Extent of damages to vehicle 42. T
6. Does insurance company have legal obligation 43. T
to pay 44. F
7. Copy of defendant’s insurance policy 45. F
8. Insurance company refuses to provide 46. T
discovery materials you request 47. F
9. Locate assets of defendant, foreclose liens, 48. T
and seize assets; defendant may appeal 49. F
10. Arbitration 50. T
51. F
CHAPTER 2
Litigation Lingo
Practice Exam 1. citation
1. B 2. district court
2. D 3. brief
3. C 4. appellee
4. E 5. annotations
5. A 6. forum
6. D 7. presiding judge
7. E 8. court clerk
8. E 9. small claims court or justice of the peace
9. A court or city court
10. D 10. circuit
11. Constitution 11. reverses
12. separation of powers 12. local rule
13. U.S. Supreme 13. discretionary
14. trial; appellate 14. court administrator
15. district; U.S. Court of Appeals 15. judge’s secretary
16. circuit 16. Federal Practice and Procedure by Wright
17. appellant; brief; appellee and Miller
18. reversed; overturned 17. pocket parts
19. court clerk
20. presiding judge Litigation Logistics
21. secretary 1. State court, federal court, small claims court.
22. ex parte You would have to know the amount of
23. forum; forum shopping damages, what the provisions of the Federal
APPENDIX A 621
Tort Claims Act are, which court could lead to 31. F

the most favorable outcome. 32. T
2. Where do I find copies of the local rules? 33. T
What are the steps I must follow in filing a 34. T
court paper? 35. T
What are the business hours of the office? 36. F
Who in the office has the most experience and 37. T
who would be the best person to consult if I 38. T
have an obscure question? 39. T
How do I get a subpoena or summons drawn up? 40. F
How do I get a paper filed after closing hours? 41. F
Are the court’s files computerized? What can I 42. T
access from my office and how do I do so? 43. F
44. F
3. Begin with the Federal Rules of Civil
45. F
Procedure. For more information consult
46. F
Federal Practice and Procedure by Wright and
47. F
Miller and the U.S.C.A. and update these
48. F
resources using the pocket parts. Use the
49. T
citations in these references to find cases in
50. T
the law reporters.
51. F
52. F
CHAPTER 3 53. F
54. T
Practice Exam 55. T
56. T
1. A 57. F
2. D
3. D Litigation Lingo
4. C
5. D 1. complaint
6. B 2. default
7. A 3. reply
8. D 4. allegations
9. C 5. caption
10. sovereign immunity 6. service
11. demand 7. removal
12. pleadings; complaint; answer 8. affidavit
13. allegations; caption; prayer for relief 9. sovereign
14. cover or information sheet 10. demand
15. summons 11. joined
16. process server; affidavit of service 12. cross
17. affidavit 13. affirmative
18. appear; answer 14. forum
19. affirmative defense 15. prayer
20. counterclaims; cross-claims 16. elements
21. third-party; severing 17. answer
22. default judgment 18. appear
23. reply 19. counterclaim
24. forum; removal 20. summons
25. issue has been joined
26. F Litigation Logistics
27. F 1. You would need to check to see if there was
28. F jurisdiction, both of subject matter and of the
29. T person. If no federal questions were involved
30. T you would have to meet the diversity
622 APPENDIX A
requirements of 28 USC §332, currently court are governed by FRCP, Rule 55, and
$75,000. As plaintiff you might want to stay in applicable local rule. Some states require
state court but you should always consider additional notice be given before a default is
the benefits of federal court. entered. See ARCP, Rule 55, for additional
a. They would need to meet the requirements notice and time requirements.
of 28 USC §1441 (but see also 28 USC §1445). c. First check your state’s forcible detainer
b. Each state has its own requirements but in (eviction statutes). A nonhabitable
Arizona, for example, each county has its residence, lack of heating/cooling,
own local rules. In Maricopa County, Local sanitation facilities, and the like might be a
Rules 2.16 and 2.17 set the format and font defense to a claim for unpaid rent. Then
size requirements. check your state’s rules for affirmative
Each state has its own requirements but defenses and when they must be made. See
in Arizona, for example, each county has its FRCP, Rule 8(c), and ARCP, Rule 8(c).
own local rules. In Maricopa County, Local d. First check your state’s forcible detainer
Rule 3.1 requires a cover sheet and 3.10(b) (eviction statutes). Oftentimes defenses
requires that a certificate of compulsory ar- to a claim (such as a nonhabitable
bitration be filed with the complaint. The residence) may give rise to claim for
certificate is also required by Arizona Rules damages by the tenant.
of Civil Procedure (ARCP), Rule 5(i). Generally counterclaims must follow the
c. Careful review of the Federal Tort Claims same requirements for other pleadings,
Act and cases interpreting the act. such as the complaint. Check your local
d. Your imagination is the only limitation. rules to see if the caption requires a refer-
Practically speaking the courts can only ence that the document is a counterclaim.
award money. Asking for other relief in See FRCP and ARCP, Rules 7 and 13.
settlement is generally not fruitful. e. Generally within 20 days. See FRCP and
2. Analyze your case as suggested in this chapter ARCP, Rule 12(a)(2).
including all possible claims (don’t forget 4. Against his subcontractors for indemnity for
intentional torts). their shoddy work.
a. Each state has its own requirements but in a. No, if filed within 10 days of his answer. See
Arizona, for example, ARCP, Rule 4(d), sets FRCP and ARCP, Rules 14.
forth the requirements of who may serve b. Yes. See FRCP and ARCP, Rules 14.
the complaint. ARCP, Rules 4.1 and 4.2, c. The same amount of time as when filing an
define how service may be made. ARCP, answer after service (we now have a new
Rule 4(i), requires service to be complete in plaintiff and a new defendant). See FRCP
120 days. See also FRCP, Rules 4(c) and (m). and ARCP, Rules 12.
b. Check your rules for service by publication d. He would probably file a cross-claim
and service by mail. In Arizona, for example, against the subcontractors. See FRCP and
ARCP, Rules 4.1(n) and 4.2(c) and (f). ARCP, Rules 12 and 13.
c. Obtain and file a waiver of service (usually 5. If it were determined that the error was not in
required to be notarized). good faith or represented a failure to conduct
d. She must file a return of service as required a reasonable inquiry into the facts prior to
by state rule. Usually it is an affidavit filing suit, sanctions could be entered against
stating the time, place, and manner of the party or the attorney. Rule 11 has been
service and upon whom it was made. In changed by many of the states that have their
Arizona see ARCP, Rules 4(g), 4.1(n) and rules based on the federal rules. Always
(o), and 4.2(b) and (c). carefully review the rule itself and court
3. Most states allow 20 days for an answer to be interpretations of it.
filed if served within the state and 30 days if In Arizona, a comparable procedural
served outside of the state. See ARCP, Rules rule is, for example, ARCP, Rule 11.
12(a), 4.2(d) and (l). See also FRCP, Rule 12(a).
a. Yes. See FRCP, Rule 12(a), and ARCP, 12(a). CHAPTER 4
b. If a timely answer has not been filed a default
may be sought. Note that if personal service
was not used additional requirements may Practice Exam
be required for service by mail and/or 1. D
service by publication. Defaults in federal 2. B
APPENDIX A 623
3. C 11. disclosure
4. D 12. exclude
5. D 13. admit
6. C 14. admission
7. D 15. deponent
8. A 16. discovery
9. D 17. subpoena
10. motion 18. inspection
11. testimonial; documentary
12. excluded; admissible Litigation Logistics
13. mandatory 1. a. Yes. Parties can always be deposed. See
14. deposition FRCP and ARCP, Rules 30. Rules for out-of-
15. transcripts state deponents vary. You may have to go
16. subpoena to the defendant’s home state for the
17. 10 deposition or pay to have him come to
18. expert your state.
19. interrogatories; propounding; responding b. Give appropriate notice. If a nonparty, a
20. request for production of documents; subpoena is required. The federal rules
subpoena duces tecum require reasonable notice. Many states
21. request for entry upon land have a set time period such as 10 days
for inspection notice.
22. independent medical examination c. He should seek a stipulation to continue
23. F the deposition date, which normally will
24. T be granted by opposing counsel. If a
25. T stipulation cannot be agreed to, he would
26. F need to seek a protective order. See FRCP
27. F and ARCP, Rules 14. See also FRCP and
28. F ARCP, Rules 26(c).
29. T d. FRCP, Rule 30, does not limit who may be
30. F deposed although Rule 30(a)(2)(A)
31. T requires leave of the court to conduct more
32. T than 10 depositions. Many states restrict
33. F depositions of nonparties. See, for
34. T example, ARCP, Rule 30.
35. T e. You may have to wait for his report to be
36. T prepared although all jurisdictions allow
37. F for the deposition of an expert witness.
38. F See FRCP and ARCP, Rules 26(b)(4).
39. F 2. a. Most states limit the number of
40. F interrogatories. Many states, however,
41. T with court-approved uniform inter-
42. T rogatories do not count them (or
43. T sometimes their subparts) against the
44. T total. Additional interrogatories may be
served with leave of the court. The
Litigation Lingo federal rules limit the number to 25. See
1. deposition FRCP, Rules 25 and 26(b)(2), and ARCP,
2. transcript Rule 33.1 (40 interrogatory limit).
3. impeach b. No. See FRCP, Rule 25, and ARCP, Rule 33.1.
4. duces tecum c. The same number. It is based on who is the
5. examine party, not how many partners there are.
6. propound The interrogatories are served on the
7. expert partnership’s attorney.
8. interrogatory d. For nonuniform interrogatories you
9. production generally have to leave enough space for
10. notice of IME the answer.
624 APPENDIX A
e. Any applicable ground will support an do so. The state courts vary widely. See
objection. Objections must be made with FRCP, Rule 36, and ARCP, Rule 36.
specificity. See FRCP, Rule 33, and ARCP,
Rule 33. CHAPTER 5
f. Usually 30 or 40 days, unless served with
the complaint. See FRCP, Rule 33 (30 days),
and ARCP, Rule 33(a) (40 days). Practice Exam
3. a. File a request for production of documents. 1. C
They may, however, be required to be 2. A
disclosed pursuant to mandatory 3. D
disclosure rules. See FRCP, Rules 34 and 45, 4. D
and ARCP, Rule 34 and 45. 5. C
b. You would need a subpoena duces tecum. 6. A
The party is usually under an obligation to 7. D
obtain documents within the party’s 8. B
control to respond to a Rule 34 request. See 9. D
FRCP, Rule 34, and ARCP, Rule 34. 10. memorandum of points and authorities
c. You do not usually need court permission. If 11. response; reply
inspection of the premises is relevant to the 12. motion papers
lawsuit, a Rule 34 request is all that is 13. oral arguments
needed. You do need to give reasonable 14. under advisement
notice and, generally, the time period for 15. minute entry
documents applies to inspection of property. 16. matter of law
See FRCP, Rule 34, and ARCP, Rule 34. 17. motion to strike
d. After researching the issue, and coming to 18. summary judgment; partial motion for
the conclusion that the papers are summary judgment
relevant—and discoverable—attempts to 19. for leave to amend
negotiate disclosure of the papers with 20. for a more definite statement; to dismiss
opposing counsel should be made. If 21. to compel discovery
negotiation is futile, a motion to compel 22. for protective order
discovery could be filed. Most courts 23. for sanctions
require an affidavit of the attempts to 24. for a pretrial conference
resolve the discovery issue before a motion 25. T
to compel is filed. See FRCP, Rule 37, and 26. F
ARCP, Rule 37. If an order is obtained and 27. T
not complied with, a motion for sanctions 28. F
would be in order. See FRCP, Rule 34, and 29. F
ARCP, Rule 37. 30. T
4. a. Many state courts and the federal courts 31. F
have mandatory disclosure requirements. 32. F
The information that must be disclosed, 33. T
the timing of the disclosure, and the effect 34. F
of failing to disclose vary. See FRCP, Rule 35. T
26, and ARCP, Rule 26.1. 36. F
b. Yes. You may also have a duty to disclose 37. F
the expert’s qualifications and opinions 38. F
without being asked to do so. Most states 39. T
allow, in addition to the party’s deposition, 40. T
that the deposition of experts be allowed 41. T
without leave of the court. See FRCP, Rules 42. T
26(a)(2) and (b)(4), and ARCP, Rules 43. F
26.1(a)(6) and 26(b)(4). 44. F
c. Generally yes. The federal rules do not 45. F
limit the number of requests for admission 46. T
that can be made although local rules may 47. F
APPENDIX A 625
48. T Litigation Logistics

49. T 1. File a motion for partial summary judgment on
50. T the issue of immunity. See FRCP, Rule 56, and
ARCP, Rule 56.
Litigation Lingo In federal court you normally obtain the
DOWN hearing date from the court’s staff and serve
1. propound notice of the hearing with the motion. Local
2. amend rules modify how (and if) a hearing can be
3. pretrial had. If no request for oral argument is made
4. scheduling the court will enter its ruling based on the
5. entry pleadings submitted. In Arizona, for example,
6. sanctions you have 15 days after service of the motion to
7. FRCP file your response. See FRCP, Rules 56 and 78,
8. response and ARCP, Rule 56.
9. summary 2. If the answer is responsive it is not
10. disclosure objectionable (not everybody has a detailed
11. advisement answer for every question). If you believe that
12. claim it is obvious that the interrogatory should be
13. trial able to be answered, you should consider a
ACROSS motion to compel (see answers to Litigation
1. definite Logistics for Chapter 4).
2. compel Motions might be made to dismiss for
3. transcript failure to state a claim; a motion for more
4. strike definite statement (preferred) could be
5. admit filed or a motion to strike could be
6. dismiss considered. A careful reading (and proper
8. reply research) might preclude the motion to
9. order strike option. See FRCP, Rule 12, and ARCP,
10. duces tecum Rule 12. The first two motions do not
11. expert generally have a fixed time period for filing.
12. production If, however, you engage in discovery and
13. minute otherwise move the case along, it may be
14. points difficult to later say you did not know what
15. depose the counterclaim was about. See FRCP and
16. motion ARCP, Rules 12 and 12(b)(6).
17. IME 3. a. You could be ordered to appear for the
I.M.E. if the opposing side filed a motion to
compel and be required to pay the
attorney’s fees for the motion. If you
refused to obey then really bad things can
happen—including having your complaint
dismissed! See FRCP and ARCP, Rule 37.
b. It depends on when you discovered the
school was part of a franchise. If a
responsive pleading has not yet been filed
leave of the court is not required and an
amended complaint could be filed and
served (but why didn’t you know it was a
franchise before the original complaint was
filed?). If no responsive pleading is
required, you may have a time limit to file
an amended pleading. If a responsive
pleading has been filed you normally
require leave of the court. See FRCP and
ARCP, Rule 15.
626 APPENDIX A
4. You would file a motion for partial summary 32. summary jury trial
judgment on the issue of negligence (often no 33. mini-trials
easy task). States vary about whether oral 34. private judging; neutral expert fact-finding
argument is by right or at the discretion of the 35. ombudsmen
court. Federal courts are not obliged to grant 36. F
oral argument. In Arizona, however, the rule 37. T
states the court shall grant a hearing if a 38. T
timely request is made. See FRCP and ARCP, 39. F
Rule 56. 40. T
Most states allow for a scheduling 41. F
conference to be held. Some are mandatory and 42. T
others are set only at the request of a party or 43. F
on the court’s discretion. If you are having a 44. F
problem with scheduling you could request a 45. T
conference even if your rules do not specifically 46. T
provide for one. See FRCP and ARCP, Rule 16. 47. T
You could also file a motion for an order setting 48. F
a discovery schedule. You should include the 49. T
basis for why the motion is being filed and a 50. F
proposed schedule for the court to consider. 51. T
52. F
CHAPTER 6 53. F
54. T
55. F
Practice Exam 56. F
1. D 57. F
2. B 58. T
3. C 59. F
4. A 60. T
5. D 61. F
6. B 62. T
7. C 63. F
8. A 64. F
9. B 65. T
10. C 66. T
11. B 67. F
12. D 68. T
13. A 69. F
14. D 70. F
15. C 71. F
16. B 72. T
17. D 73. F
18. A 74. T
19. D 75. T
20. B 76. F
21. mediation 77. F
22. arbitration; mini-trials 78. F
23. med-arb 79. F
24. summary jury trial 80. T
25. binding; nonbinding; de novo 81. T
26. mandatory 82. F
27. court-annexed; private 83. T
28. American Arbitration Association 84. F
29. voluntary 85. F
30. community; transformative 86. F
31. med-arb 87. T
APPENDIX A 627
88. F damages of $50,000 or less are subject to

89. F mandatory arbitration. If nonmonetary
90. T damages are sought the case is not
91. T subject to mandatory arbitration.
92. F All cases with monetary damages of
93. F less than $50,000 damages are subject to
94. T mandatory arbitration.
95. T b. In the Maricopa County Superior Court of
96. F Arizona all court-annexed arbitrations
97. T require that an attorney (selected from a
98. T list of all Maricopa County attorneys) be
99. F the arbitrator.
100. T c. In the Maricopa County Superior Court of
101. T Arizona attorneys are selected at random
102. T irrespective of their specialty or
103. F experience (but they must have been an
104. F attorney for 5 years).
105. T d. In the Maricopa County Superior Court of
106. T Arizona the arbitrator selects the location
107. F for the hearing.
e. In the Maricopa County Superior Court of
Litigation Lingo Arizona, yes.
1. de novo Good cause accepted by the arbitrator.
2. ombudsman f. In the Maricopa County Superior Court of
3. med-arb Arizona the Arizona Rules of Evidence apply.
4. transformative g. In the Maricopa County Superior Court of
5. binding Arizona, yes.
6. mediator h. In the Maricopa County Superior Court of
7. mini-trial Arizona no court reporter is provided
8. summary jury unless requested. A deposit is required to
9. arbitrator be made before the arbitrator selects a
10. annexed reporter.
i. In the Maricopa County Superior Court of
Arizona the award is to be made within 10
Litigation Logistics days from the conclusion of the hearing.
1. a. If punitive damages can be sought, ADR j. In the Maricopa County Superior Court of
would not appear appropriate. If only Arizona an appeal must be made within 20
monetary damages are sought (and it days after the filing of the award or the
would appear only the amount could be award becomes final.
contested), ADR (arbitration) would be a k. In the Maricopa County Superior Court of
viable alternative. Arizona all appeals from arbitration are de
b. Yes. Depending on what issues are being novo.
contested (i.e., is liability admitted?) all l. In the Maricopa County Superior Court of
forms of ADR could be used. If only the Arizona, no.
amount of damages is contested either m. In the Maricopa County Superior Court of
mediation or arbitration would be viable. Arizona if the appellant does not do at least
c. Yes. Mediation would be best for this 10 percent better at trial she is liable for
family dispute. taxable costs and attorney’s fees to be
d. Yes. Often construction contracts have determined by the trial judge.
mandatory arbitration clauses for
disputes. Arbitration would be most CHAPTER 7
appropriate.
e. No. To be able to evict the tenant, you
must have a court order. Practice Exam
2. a. In the Maricopa County Superior Court of 1. D
Arizona all cases involving monetary 2. B
628 APPENDIX A
3. C 60. F
4. B 61. T
5. C 62. F
6. A 63. T
7. D 64. T
8. D 65. F
9. B 66. F
10. A 67. F
11. B 68. F
12. B 69. T
13. D 70. T
14. C 71. F
15. A 72. F
16. C 73. F
17. C 74. T
18. trial setting 75. T
19. pretrial order 76. T
20. set and certificate of readiness 77. F
21. in limine 78. T
22. jury instructions 79. F
23. demonstrative 80. T
24. voir dire 81. F
25. peremptory challenge 82. T
26. findings of facts and conclusions of law 83. T
27. opening statements 84. F
28. prima facie; directed verdict 85. T
29. direct; cross 86. F
30. hostile 87. F
31. under the rule 88. F
32. leading 89. T
33. preponderance of the evidence 90. T
34. sandbagging 91. T
35. closing arguments 92. F
36. general; special 93. F
37. general verdict with written interrogatories 94. F
38. hung jury 95. T
39. poll the jury 96. T
40. new trial; judgment notwithstanding the verdict 97. T
41. remittitur 98. F
42. entry of judgment 99. F
43. lodge 100. T
44. statement of costs 101. T
45. F 102. T
46. F 103. F
47. T 104. T
48. T 105. F
49. T 106. F
50. F 107. T
51. F 108. T
52. T 109. T
53. F 110. F
54. T 111. F
55. T
56. F Litigation Lingo
57. T 1. affirmative defense
58. T 2. demonstrative evidence
59. T 3. opening statements
APPENDIX A 629
4. pretrial order 2. Many states have standard jury

5. motion to set and certificate of readiness instructions that have been approved
6. rebuttal by the courts or created by the state or
7. motion in limine local bar associations. If standard
8. voir dire instructions are court approved getting
9. entry of judgment a “custom” instruction for an area
10. motion for directed verdict covered by the standard could be
11. peremptory challenge difficult. In Arizona, for example, we
12. closing argument have what are called RAJIs
13. findings of fact and conclusions of law (Recommended Arizona Jury
14. taxable costs Instructions) that cover negligence,
15. cross-examination fault, medical malpractice, product
16. hostile witness liability, bad faith, premises liability,
17. form of judgment contracts, eminent domain,
18. prima facie case employment law, and commercial torts.
19. special verdict Many books have been written that
20. hung jury provide sample jury instructions
21. leading question covering the whole gambit of jury
22. preponderance of the evidence trials, including criminal trials.
23. motion for judgment notwithstanding c. Yes.
the verdict 1. All exhibits should have been exchanged
24. general verdict with written interrogatories if there are mandatory disclosure
25. remittitur requirements. In any event the court
26. polls the jury normally sets a date for the exhibits to
be brought to the court and marked by
the clerk, at least a day or more before
Litigation Logistics trial is to begin. Always check with the
1. Although states vary in their requirements, court’s staff to see if the judge wants his
most provide a mechanism to notify the own copy of the exhibits to refer to at
court that one side, at least, thinks it is ready trial. In many states it is possible to
for trial. A list of witnesses and exhibits provide the jurors with selected
might be required along with a certificate of exhibits—check your local rules and the
readiness for trial. In federal court the trial judge’s preferences.
date is usually set at, or shortly after, the 2. You can often get the other party to
pretrial conference. See FRCP and ARCP, Rule stipulate to the authenticity and
16. admissibility of many exhibits. The
a. Normally yes. Although they may be called rules of evidence have been codified in
by different names most courts enter federal court, see the Federal Rules of
orders, or sometimes minute entries, Evidence for United States Courts.
setting the various dates for completing Many states pattern their rules of
pretrial matters including the dates for evidence after the federal rules, just as
motions in limine, jury instructions, the many do their rules of procedure.
latest date for dispositive motions to be 3. Almost always.
filed, exhibits to be marked, etc. 2. a. Someone predisposed to your client’s
1. When ordered by the court. position, a conservative, elderly, non- or
2. Pretrial statements generally differ very moderate drinker, for example.
from pretrial orders. Check your state b. Each state varies. For a jury of eight, each
and local rules carefully. side may have two or four preemptory
b. General jury instructions regarding juror challenges. In federal court each party has
conduct, burden of proof, credibility, three preemptory challenges. No reason
stipulations and the like. need be given to challenge a juror but race
Specific instructions regarding the legal cannot be a factor. See FRCP and ARCP,
obligations of each party, defenses, mode Rule 47. Criminal rules generally allow for
and manner of calculating damages, etc. more preemptory challenges (often a jury
1. When required by the pretrial order or of twelve is required).
minute entry setting the respective dates, c. Most states allow the judge to determine
generally a week or so prior to trial. how voir dire will be conducted. Some
630 APPENDIX A
judges will ask accepted proposed judgment n.o.v.). This motion is often
questions from counsel; others allow combined with a motion for a new trial. See
counsel to conduct all voir dire except FRCP and ARCP, Rule 50.
background questions. Many judges allow Usually the same as for a motion for a
voir dire by counsel but set time limits or new trial. Care should be taken if both mo-
limit the areas of inquiry. See FRCP and tions are not made simultaneously—filing
ARCP, Rule 47. one may not extend the time to file the other.
d. Only those questions reasonably expected See FRCP and ARCP, Rules 50 and 59.
to uncover bias or prejudice. d. File a motion to amend the judgment (a
e. Depends. If you know the judge, and your remittur decreases the award; an additur
case, a court trial may be the best way to increases the award). Now generally filed as
go. If costs, including attorney’s fees, part of a motion for a new trial. If the party
represent a true hardship on the client, against whom remittitur is sought refuses to
some savings may be had with a trial to the accept the judge’s proposed decrease in the
court. If your case is more “legal” than award, the motion for a new trial is granted.
factual or you have an “unattractive” case See FRCP, Rule 59, and ARCP, Rule 59(i).
you may want a judge to decide rather than 4. a. Have the judgment signed and filed with
a jury. In most instances a trial to the court the clerk of the court. Some states require
can only occur by stipulation or when a the judge to sign the judgment, others
jury trial is not allowed. allow the clerk to do so. When the
Findings of fact and conclusions of law judgment is signed and properly docketed
are required only in a trial to the court. Even in the clerk of court’s office it is said to be
then, in many states, they are not required if entered. Time periods for post-trial
no request for them is made by counsel. The motions usually run from the date of entry
federal rules require findings of fact and law of judgment. See FRCP, Rules 58 and 79, and
without the request of a party. See FRCP and ARCP, Rules 54, 58, and 77.
ARCP, Rule 52. b. Within the prescribed period of time after
f. Special verdicts are not often used in the entry of judgment, generally 20 or 30
average jury trial. In complex cases or days. The filing of various post-trial
those where the law is unsettled they are motions may extend the appeal period
more common. Using a special verdict is until those motions are resolved. Most
solely within the discretion of the trial states and the various federal circuits
judge. See FRCP and ARCP, Rule 49. have appellate rules setting the time
3. A motion for a directed verdict by the period for appeal of a final judgment.
defendant is usually made at the close of the Always check the appellate court rules
plaintiff’s case. A motion by the plaintiff is for the proper time period.
made at the close of defendant’s case. Such a c. By court rule. See FRCP and ARCP, Rule
motion must be made before the case is 54. An objection to the form of judgment
submitted to the jury. Motions for a directed submitted to the court by the opposing
verdict are now generally referred to as a party is generally available. Having the
motion for judgment as a matter of law. See parties submit forms of judgment is
FRCP and ARCP, Rule 50. frowned on in federal court and
a. There is no legally sufficient evidentiary objections to the form prepared by the
basis for the jury to find in favor of the judge are not normally well received
other party. See FRCP and ARCP, Rule 50. unless to correct clerical errors. See
b. Move for a new trial. See FRCP and ARCP, FRCP and ARCP, Rule 58(d).
Rule 59. d. Each state defines what are taxable costs,
The time period varies but is usually 10 often by statute, sometimes by rule. Filing
to 20 days after entry of judgment (which fees, service of process costs, fees for
can take a substantial period of time if all subpoenas, witness fees (generally minimal
procedural avenues are followed). See with some mileage provision; not expert
FRCP and ARCP, Rule 50 (10 days in federal witness fees), necessary copy costs, and
court; 15 days in Arizona). the like are often allowed to the prevailing
c. Move for a judgment as a matter of law party as taxable costs. In some states,
after the verdict is returned (also known as although not federal court, the judgment is
a judgment notwithstanding the verdict or not entered until costs (and sometimes
APPENDIX A 631
attorney’s fees) are determined. See FRCP 21. reversible; harmless

and ARCP, Rule 58. 22. cross-appeal
e. It depends. In most cases attorney’s fees 23. interlocutory
are allowed only when provided for by 24. appellant; notice of appeal; appellee
statute or by written agreement (a 25. opening; authorities; responding; reply
contractual provision, for example). An 26. mandate
application for attorney’s fees must be 27. T
filed, the requirements for which vary 28. F
greatly. An opportunity for the opposing 29. T
party to object and/or question the amount 30. T
of the fee request is allowed. 31. T
5. a. Cross-examination is usually limited to the 32. T
subject matter brought out on direct 33. F
examination as well as matters relating to 34. T
the witness’s credibility. The court may 35. F
allow additional, relevant questions. Check 36. F
your rules and statutes carefully! See 37. T
Federal Rules of Evidence, Rule 611. 38. T
b. Redirect examination is generally limited to 39. F
clarifying any responses developed in cross- 40. T
examination. The judge has considerable 41. T
discretion in controlling the mode and 42. T
manner of examination of witnesses. 43. F
c. Questions can be asked on any relevant 44. F
matter. Certain matters can be excluded if 45. F
the court determines its disclosure would 46. T
be unduly prejudicial or if it is merely 47. T
repetitive. Some relevant matters, such as 48. T
subsequent remedial matters, are excluded 49. F
on public policy grounds. See Federal Rules 50. T
of Evidence, Rules 401 through 415. 51. F
52. F
CHAPTER 8 53. T
54. F
55. T
Practice Exam 56. F
1. A 57. T
2. B 58. F
3. C 59. F
4. A 60. F
5. D 61. F
6. D 62. T
7. A 63. T
8. C 64. T
9. B 65. F
10. D 66. F
11. D 67. F
12. judgment 68. T
13. judgment creditor; judgment debtor 69. T
14. stay; supersedes 70. F
15. execution 71. F
16. debtor’s exam 72. T
17. lien; judgment lien 73. F
18. writ of execution 74. F
19. writ of garnishment 75. T
20. fraudulent conveyance 76. T
632 APPENDIX A
Litigation Lingo d. Check the applicable rules of appellate

1. interlocutory procedure—usually the rules are very
2. stay specific.
3. supersedes bond e. Check the applicable rules of appellate
4. garnish procedure—many times one or three.
5. fraudulent conveyance 3. You could schedule a debtor’s exam, record
6. reversible the judgment as a lien against the debtor’s real
7. appellee property in the county where the judgment
8. reply was recorded, begin execution on the
9. mandate judgment.
10. execution You would get a writ of execution to have
11. proof the sheriff seize and sell the property.
12. examination 1. Normally an automobile may be claimed
13. lien as exempt up to a certain equity value,
14. authorities often only $1,500 to $2,500.
2. As required by state law.
Litigation Logistics 3. Usually yes if the property was
transferred without valuable
1. If the driver had insurance. If not you would
consideration.
want to check to see that he had nonexempt
4. Perhaps.
assets. If there was insurance you would want
a. The procedures of the federal bankruptcy
to know if it indemnified for punitive damages
court. All actions are initially automatically
(most do not).
stayed by the filing of a bankruptcy
If uninsured, get a judgment. You would
petition.
have to review the applicable garnishment
b. Do the debtor’s examination according to
laws and follow the procedures to the letter.
bankruptcy rules.
2. After any mandatory waiting periods the
c. Record the judgment with the county
corporation would need to file a supersedes
recorder in the county where the building
bond.
is located.
a. File a notice of appeal
Obtain a writ of execution for the sale of
b. Check the applicable rules of appellate
real property.
procedure—often 30 days after the appeal
5. File an interlocutory appeal (in some states a
is at issue (all fees paid).
“special action”).
c. Check the applicable rules of appellate
Your options would be the same as the above.
procedure—often 25 to 30 pages.
APPENDIX B
Federal Rules of Civil Procedure for

the United States District Courts
As Amended through December 1, 1997
I. Scope of Rules—One Form of Action 5. Service and Filing of Pleadings and Other
Papers
Rule
(a) Service: When Required
1. Scope and Purpose of Rules. (b) Same: How Made
2. One Form of Action. (c) Same: Numerous Defendants
II. Commencement of Action; Service of (d) Filing; Certificate of Service
Process, Pleadings, Motions, and Orders (e) Filing With the Court Defined
6. Time
3. Commencement of Action
(a) Computation
4. Summons
(b) Enlargement
(a) Form
(c) Rescinded
(b) Issuance
(d) For Motions - Affidavits
(c) Service with Complaint; by Whom
(e) Additional Time After Service by Mail
Made
(d) Waiver of Service; Duty to Save Costs III. Pleadings and Motions
of Service; Request to Waive
(e) Service Upon Individuals Within a 7. Pleadings Allowed; Form of Motions
Judicial District of the United States (a) Pleadings
(f) Service Upon Individuals in a Foreign (b) Motions and Other Papers
Country (c) Demurrers, Pleas, etc., Abolished
(g) Service Upon Infants and 8. General Rules of Pleading
Incompetent Persons (a) Claims for Relief
(h) Service Upon Corporations and (b) Defenses; Form of Denials
Associations (c) Affirmative Defenses
(i) Service Upon the United States, and (d) Effect of Failure to Deny
Its Agencies, Corporations, or Officers (e) Pleading To Be Concise and Direct;
(j) Service Upon Foreign, State, or Local Consistency
Governments (f) Construction of Pleadings
(k) Territorial Limits of Effective Service
9. Pleading Special Matters
(l) Proof of Service
(a) Capacity
(m) Time Limit for Service
(b) Fraud, Mistake, Condition of the Mind
(n) Seizure of Property; Service of
(c) Conditions Precedent
Summons Not Feasible
(d) Official Document or Act
4.1 Service of Other Process (e) Judgment
(a) Generally (f) Time and Place
(b) Enforcement of Orders: Commitment (g) Special Damage
for Civil Contempt (h) Admiralty and Maritime Claims
634 APPENDIX B
10. Form of Pleadings (a) Pretrial Conferences; Objectives

(a) Caption; Names of Parties (b) Scheduling and Planning
(b) Paragraphs; Separate Statements (c) Subjects To Be Discussed at Pretrial
(c) Adoption by Reference; Exhibits Conferences
11. Signing of Pleadings, Motions, and Other (d) Final Pretrial Conference
Papers; Representations to the Court; (e) Pretrial Orders
Sanctions (f) Sanctions
(a) Signature
IV. Parties
(b) Representations to Court
(c) Sanctions 17. Parties Plaintiff and Defendant;
(1) How Initiated Capacity
(A) By Motion (a) Real Party in Interest
(B) On Court’s Initiative (b) Capacity To Sue or Be Sued
(2) Nature of Sanction; Limitations (c) Infants or Incompetent Persons
(3) Order 18. Joinder of Claims and Remedies
(d) Inapplicability to Discovery (a) Joinder of Claims
12. Defenses and Objections—When and How (b) Joinder of Remedies; Fraudulent
Presented—By Pleading or Motion— Conveyances
Motion for Judgment on the Pleadings 19. Joinder of Persons Needed for Just
(a) When Presented Adjudication
(b) How Presented (a) Persons To Be Joined If Feasible
(c) Motion for Judgment on the Pleadings (b) Determination by Court Whenever
(d) Preliminary Hearings Joinder Not Feasible
(e) Motion for More Definite Statement (c) Pleading Reasons for Nonjoinder
(f) Motion to Strike (d) Exception of Class Actions
(g) Consolidation of Defenses
in Motion 20. Permissive Joinder of Parties
(h) Waiver or Preservation of Certain (a) Permissive Joinder
Defenses (b) Separate Trials
13. Counterclaim and Cross-Claim 21. Misjoinder and Non-joinder

(a) Compulsory Counterclaims of Parties
(b) Permissive Counterclaims 22. Interpleader
(c) Counterclaim Exceeding Opposing 23. Class Actions
Claim (a) Prerequisites to a Class Action
(d) Counterclaim Against the United States (b) Class Actions Maintainable
(e) Counterclaim Maturing or Acquired (c) Determination by Order Whether
After Pleading Class Action To Be Maintained;
(f) Omitted Counterclaim Notice; Judgment; Actions
(g) Cross-Claim Against Co-Party Conducted Partially as Class
(h) Joinder of Additional Parties Actions
(i) Separate Trials; Separate Judgments (d) Orders in Conduct of Actions
14. Third-Party Practice (e) Dismissal or Compromise
(a) When Defendant May Bring in Third 23.1 Derivative Actions by Shareholders
Party 23.2 Actions Relating to Unincorporated
(b) When Plaintiff May Bring in Third Associations
Party 24. Intervention
(c) Admiralty and Maritime Claims (a) Intervention of Right
15. Amended and Supplemental Pleadings (b) Permissive Intervention
(a) Amendments (c) Procedure
(b) Amendments to Conform to the 25. Substitution of Parties
Evidence (a) Death
(c) Relation Back of Amendments (b) Incompetency
(d) Supplemental Pleadings (c) Transfer of Interest
16. Pretrial Conferences; Scheduling; (d) Public Officers; Death or Separation
Management from Office
APPENDIX B 635
V. Depositions and Discovery (e) Review by Witness; Changes;

Signing
26. General Provisions Governing Discovery;
(f) Certification and Filing by Officer;
Duty of Disclosure
Exhibits; Copies; Notice of Filing
(a) Required Disclosures; Methods to
(g) Failure to Attend or to Serve
Discover Additional Matter
Subpoena; Expenses
(1) Initial Disclosures
(2) Disclosure of Expert Testimony 31. Depositions Upon Written Questions
(3) Pretrial Disclosures (a) Serving Questions; Notice
(4) Form of Disclosures; Filing (b) Officer to Take Responses and
(5) Methods to Discover Additional Prepare Record
Matter (c) Notice of Filing
(b) Discovery Scope and Limits 32. Use of Depositions in Court Proceedings
(1) In General (a) Use of Depositions
(2) Limitations (b) Objection to Admissibility
(3) Trial preparation: Materials (c) Form of Presentation
(4) Trial Preparation: Experts (d) Effect of Errors and Irregularities
(5) Claims of Privilege or Protection in Depositions
of Trial Preparation Materials (1) As to Notice.
(c) Protective Orders (2) As to Disqualification of Officer.
(d) Timing and Sequence of Discovery (3) As to Taking of Deposition.
(e) Supplementation of Disclosures and (4) As to Completion and Return
Responses of Deposition.
(f) Meeting of Parties; Planning for 33. Interrogatories to Parties
Discovery (a) Availability
(g) Signing of Disclosures, Discovery (b) Answers and Objections
Requests, Responses, and Objections (c) Scope; Use at Trial
27. Depositions Before Action or Pending (d) Option to Produce Business
Appeal Records
(a) Before Action 34. Production of Documents and Things and
(1) Petition Entry Upon Land for Inspection and Other
(2) Notice and Service Purposes
(3) Order and Examination (a) Scope
(4) Use of Deposition (b) Procedure
(b) Pending Appeal (c) Persons Not Parties
(c) Perpetuation by Action
35. Physical and Mental Examination
28. Persons Before Whom Depositions May of Persons
Be Taken (a) Order for Examination
(a) Within the United States (b) Report of Examiner
(b) In Foreign Countries 36. Requests for Admission
(c) Disqualification for Interest (a) Request for Admission
29. Stipulations Regarding Discovery (b) Effect of Admission
Procedure 37. Failure to Make Disclosure or Cooperate
30. Depositions Upon Oral Examination in Discovery: Sanctions
(a) When Depositions May be Taken; (a) Motion for Order Compelling
When Leave Required Disclosure or Discovery
(b) Notice of Examination: General (1) Appropriate Court
Requirements; Method of Recording; (2) Motion
Production of Documents and Things; (3) Evasive or Incomplete Disclosure,
Deposition of Organization; Answer, or Response
Deposition by Telephone (4) Expenses and Sanctions
(c) Examination and Cross-Examination; (b) Failure to Comply with Order
Record of Examination; Oath; (1) Sanctions by Court in District
Objections Where Deposition Is Taken
(d) Schedule and Duration; Motion to (2) Sanctions by Court in Which
Terminate or Limit Examination Action Is Pending
636 APPENDIX B
(c) Failure to Disclose; False or (d) Duties in Responding to Subpoena

Misleading Disclosure; Refusal to (e) Contempt
Admit 46. Exceptions Unnecessary
(d) Failure of Party to Attend at Own
47. Selection of Jurors
Deposition or Serve Answers to
(a) Examination of Jurors
Interrogatories or Respond to
(b) Peremptory Challenges
Request for Inspection
(c) Excuse
(e) Abrogated
(f) Repealed 48. Number of Jurors—Participation in
(g) Failure to Participate in the Framing Verdict
of a Discovery Plan 49. Special Verdicts and Interrogatories
(a) Special Verdicts
VI. Trials
(b) General Verdict Accompanied by
38. Jury Trial of Right Answer to Interrogatories
(a) Right Preserved 50. Judgment as a Matter of Law in Jury
(b) Demand Trials; Alternative Motion for New Trial;
(c) Same: Specification of Issues Conditional Rulings
(d) Waiver (a) Judgment as a Matter of Law
(e) Admiralty and Maritime Claims (b) Renewing Motion for Judgment
39. Trial by Jury or by the Court After Trial; Alternative Motion for
(a) By Jury New Trial
(b) By the Court (c) Granting Renewed Motion for
(c) Advisory Jury and Trial by Consent Judgment as a Matter of Law;
Conditional Rulings; New Trial Motion
40. Assignment of Cases for Trial (d) Same: Denial of Motion for Judgment
41. Dismissal of Actions as a Matter of Law
(a) Voluntary Dismissal: Effect Thereof
51. Instructions to Jury: Objection
(1) By Plaintiff; by Stipulation.
(2) By Order of Court 52. Findings by the Court; Judgment on
(b) Involuntary Dismissal: Effect Thereof Partial Findings
(c) Dismissal of Counterclaim, Cross- (a) Effect
Claim, or Third-Party Claim (b) Amendment
(d) Costs of Previously-Dismissed Action (c) Judgment on Partial Findings
42. Consolidation; Separate Trials 53. Masters
(a) Consolidation (a) Appointment and Compensation
(b) Separate Trials (b) Reference
(c) Powers
43. Taking of Testimony (d) Proceedings
(a) Form (1) Meetings
(b) Abrogated (2) Witnesses
(c) Abrogated (3) Statement of Accounts
(d) Affirmation in Lieu of Oath (e) Report
(e) Evidence on Motions (1) Contents and Filing
(f) Interpreters (2) In Non-Jury Actions
44. Proof of Official Record (3) In Jury Actions
(a) Authentication (4) Stipulation as to Findings
(1) Domestic (5) Draft Report
(2) Foreign (f) Application to Magistrate Judge
(b) Lack of Record
(c) Other Proof VII. Judgment
44.1 Determination of Foreign Law 54. Judgments; Costs
45. Subpoena (a) Definition; Form
(a) Form; Issuance (b) Judgment Upon Multiple Claims or
(b) Service Involving Multiple Parties
(c) Protection of Persons Subject (c) Demand for Judgment
to Subpoenas (d) Costs; Attorneys’ Fees
APPENDIX B 637
(1) Costs Other than Attorneys’ Fees 65. Injunctions

(2) Attorneys’ Fees (a) Preliminary Injunction
55. Default (1) Notice
(a) Entry (2) Consolidation of Hearing With
(b) Judgment Trial on Merits
(1) By the Clerk (b) Temporary Restraining Order; Notice;
(2) By the Court Hearing; Duration
(c) Setting Aside Default (c) Security
(d) Plaintiffs, Counterclaimants, Cross- (d) Form and Scope of Injunction or
Claimants Restraining Order
(e) Judgment Against the United States (e) Employer and Employee;
Interpleader; Constitutional Cases
56. Summary Judgment
(a) For Claimant 65.1 Security: Proceedings Against Sureties
(b) For Defending Party 66. Receivers Appointed by Federal Courts
(c) Motion and Proceedings Thereon 67. Deposit in Court
(d) Case Not Fully Adjudicated on Motion 68. Offer of Judgment
(e) Form of Affidavits; Further 69. Execution
Testimony; Defense Required (a) In General
(f) When Affidavits Are Unavailable (b) Against Certain Public Officers
(g) Affidavits Made in Bad Faith
70. Judgment For Specific Acts; Vesting Title
57. Declaratory Judgments
71. Process in Behalf of and Against Persons
58. Entry of Judgment Not Parties
59. New Trials; Amendment of Judgments
IX. Special Proceedings
(a) Grounds
(b) Time for Motion 71A. Condemnation of Property
(c) Time for Serving Affidavits (a) Applicability of Other Rules
(d) On Court’s Initiative; Notice; (b) Joinder of Properties
Specifying Grounds (c) Complaint
(e) Motion to Alter or Amend Judgment (1) Caption
(2) Contents
60. Relief from Judgment or Order (3) Filing
(a) Clerical Mistakes (d) Process
(b) Mistakes; Inadvertence; Excusable (1) Notice; Delivery
Neglect; Newly Discovered Evidence; (2) Same; Form
Fraud; Etc. (3) Service of Notice
61. Harmless Error (A) Personal Service
62. Stay of Proceedings to Enforce a (B) Service by Publication
Judgment (4) Return; Amendment
(a) Automatic Stay; Exceptions - (e) Appearance or Answer
Injunctions, Receiverships, and (f) Amendment of Pleadings
Patent Accountings (g) Substitution of Parties
(b) Stay on Motion for New Trial or (h) Trial
for Judgment (i) Dismissal of Action
(c) Injunction Pending Appeal (1) As of Right
(d) Stay Upon Appeal (2) By Stipulation
(e) Stay in Favor of the United States or (3) By Order of the Court
Agency Thereof (4) Effect
(f) Stay According to State Law (j) Deposit and Its Distribution
(g) Power of Appellate Court Not Limited (k) Condemnation Under a State’s Power
(h) Stay of Judgment as to Multiple of Eminent Domain
Claims or Multiple Parties (l) Costs
63. Inability of a Judge to Proceed 72. Magistrate Judges; Pretrial Orders
(a) Nondispositive Matters
VIII. Provisional and Final Remedies
(b) Dispositive Motions and Prisoner
64. Seizure of Person or Property Petitions
638 APPENDIX B
73. Magistrate Judges; Trial by Consent and I. Scope of Rules—One Form of Action.
Appeal
Rule 1. Scope and Purpose of Rules.
(a) Powers; Procedure
(b) Consent These Rules govern the procedure in the
(c) Appeal United States district courts in all suits of a
(d) Abrogated civil nature whether cognizable as cases at
law or in equity or in admiralty, with the ex-
74. Abrogated
ceptions stated in Rule 81. They shall be con-
75. Abrogated strued and administered to secure the just,
76. Abrogated speedy, and inexpensive determination of
X. District Courts and Clerks every action.
77. District Courts and Clerks Rule 2. One Form of Action.
(a) District Courts Always Open There shall be one form of action to be known
(b) Trials and Hearings; Orders as “civil action.”
in Chambers
(c) Clerk’s Office and Orders by Clerk II. Commencement of Action; Service of
(d) Notice of Orders or Judgments Process, Pleadings, Motions and Orders.
78. Motion Day Rule 3. Commencement of Action.
79. Books and Records Kept by the Clerk A civil action is commenced by filing a com-
and Entries Therein plaint with the court.
(a) Civil Docket
(b) Civil Judgments and Orders Rule 4. Summons.
(c) Indices; Calendars (a) Form. The summons shall be signed by the
(d) Other Books and Records clerk, bear the seal of the court, identify the
of the Clerk court and the parties, be directed to the de-
80. Stenographer; Stenographic Report or fendant, and state the name and address of the
Transcript as Evidence plaintiff’s attorney, or, if unrepresented, of the
(a) Abrogated plaintiff. It shall also state the time within
(b) Abrogated which the defendant must appear and defend,
(c) Stenographic Report or Transcript and notify the defendant that failure to do so
as Evidence will result in a judgment by default against the
defendant for the relief demanded in the com-
XI. General Provisions plaint. The court may allow a summons to be
81. Applicability in General amended.
(a) To What Proceedings Applicable (b) Issuance. Upon or after filing the com-
(b) Scire Facias and Mandamus plaint, the plaintiff may present a summons to
(c) Removed Actions the clerk for signature and seal. If the sum-
(d) Abrogated mons is in proper form, the clerk shall sign,
(e) Law Applicable seal, and issue it to the plaintiff for service on
(f) References to Officer of the the defendant. A summons, or a copy of the
United States summons if addressed to multiple defen-
dants, shall be issued for each defendant to
82. Jurisdiction and Venue Unaffected
be served.
83. Rules by District Courts; Judge’s (c) Service with Complaint; by Whom Made.
Directives (1) A summons shall be served together
(a) Local Rules with a copy of the complaint. The plaintiff is
(b) Procedures When There is No responsible for service of a summons and
Controlling Law complaint within the time allowed under sub-
84. Forms division (m) and shall furnish the person ef-
85. Title fecting service with the necessary copies of
86. Effective Date the summons and complaint.
(a) (Effective Date of Original Rules) (2) Service may be effected by any per-
(b) Effective Date of Amendments son who is not a party and who is at least 18
(c) Effective Date of Amendments years of age. At the request of the plaintiff,
(d) Effective Date of Amendments however, the court may direct that service be
(e) Effective Date of Amendments effected by a United States marshal, deputy
APPENDIX B 639
United States marshal, or other person or of- ice on the defendant unless good cause for
ficer specially appointed by the court for that the failure be shown.
purpose. Such an appointment must be made (3) A defendant that, before being served
when the plaintiff is authorized to proceed in with process, timely returns a waiver so re-
forma pauperis pursuant to 19 U.S.C. §1915 or quested is not required to serve an answer to
is authorized to proceed as a seaman under the complaint until 60 days after the date on
18 U.S.C. §1916. which the request for waiver of service was
(d) Waiver of Service; Duty to Save Costs of sent, or 90 days after that date if the defen-
Service; Request to Waive. dant was addressed outside any judicial dis-
(1) A defendant who waives service of a trict of the United States.
summons does not thereby waive any objec- (4) When the plaintiff files a waiver of
tion to the venue or to the jurisdiction of the service with the court, the action shall pro-
court over the person of the defendant. ceed, except as provided in paragraph (3), as
(2) An individual, corporation, or associ- if a summons and complaint had been served
ation that is subject to service under subdi- at the time of filing the waiver, and no proof
vision (e), (f), or (h) and that receives notice of service shall be required.
of an action in the manner provided in this (5) The costs to be imposed on a defen-
paragraph has a duty to avoid unnecessary dant under paragraph (2) for failure to com-
costs of serving the summons. To avoid ply with a request to waiver service of a
costs, the plaintiff may notify such a defen- summons shall include the costs subse-
dant of the commencement of the action and quently incurred in effecting service under
request that the defendant waive service of subdivision (e), (f) or (h), together with the
a summons. costs, including a reasonable attorney’s fee,
The notice and request of any motion required to collect the costs
(A) shall be in writing and shall be ad- of service.
dressed directly to the defendant, if an indi- (e) Service Upon Individuals Within a Judi-
vidual, or else to an office or managing or gen- cial District of the United States. Unless oth-
eral agent (or other agent authorized by erwise provided by federal law, service upon
appointment or law to receive service of an individual from whom a waiver has not
process) of a defendant subject to service un- been obtained and filed, other than an infant
der subdivision (h); or an incompetent person, may be effected in
(B) shall be dispatched through first- any judicial district of the United States:
class mail or other reliable means; (1) pursuant to the law of the state in
(C) shall be accompanied by a copy of the which the district court is located, or in
complaint and shall identify the court in which service is effected, for the service of a
which it has been filed; summons upon the defendant in an action
(D) shall inform the defendant, by means brought in the courts of general jurisdiction
of a text prescribed in an official form prom- of the State; or
ulgated pursuant to Rule 84, of the conse- (2) by delivering a copy of the summons
quences of compliance and of a failure to and of the complaint to the individual per-
comply with the request; sonally or by leaving copies thereof at the in-
(E) shall set forth the date on which the dividual’s dwelling house or usual place of
request is sent; abode with some person of suitable age and
(F) shall allow the defendant a reason- discretion then residing therein or by deliver-
able time to return the waiver, which shall be ing a copy of the summons and of the com-
at least 30 days from the date on which the re- plaint to an agent authorized by appointment
quest is sent, or 60 days from that date if the or by law to receive service of process.
defendant is addressed outside any judicial (f ) Service Upon Individuals in a Foreign
district of the United States; and Country. Unless otherwise provided by fed-
(G) shall provide the defendant with an eral law, service upon an individual from
extra copy of the notice and request, as well whom a waiver has not been obtained and
as a prepaid means of compliance in writing. filed, other than an infant or an incompetent
If a defendant located within the United person, may be effected in a place not within
States fails to comply with a request for any judicial district of the United States:
waiver made by a plaintiff located within the (1) by an internationally agreed means
United States, the court shall impose the reasonably calculated to give notice, such as
costs subsequently incurred in effecting serv- those means authorized by the Hague Con-
640 APPENDIX B
vention on the Service Abroad of Judicial and service and the statute so requires, by also
Extrajudicial Documents; or mailing a copy to the defendant, or
(2) if there is no internationally agreed (2) in a place not within any judicial dis-
means of service or the applicable interna- trict of the United States in any manner pre-
tional agreement allows other means of serv- scribed for individuals by subdivision (f) ex-
ice, provided that service is reasonably cal- cept personal delivery as provided in
culated to give notice: paragraph (2)(C)(i) thereof.
(A) in the manner prescribed by the law (i) Service Upon the United States and Its
of the foreign country for service in that coun- Agencies, Corporations or Officers.
try in an action in any of its courts of general (1) Service upon the United States shall
jurisdiction; or be effected
(B) as directed by the foreign authority in (A) by delivering a copy of the summons
response to a letter rogatory or letter of re- and complaint to the United States attorney
quest; or for the district in which the action is brought
(C) unless prohibited by the law of the or to an assistant United States attorney or
foreign country, by clerical employee designated by the United
(i) delivery to the individual person- States attorney in a writing filed with the clerk
ally of a copy of the summons and the com- of the court or by sending a copy of the sum-
plaint; or mons and of the complaint by registered or
(ii) any form of mail requiring a signed certified mail addressed to the civil process
receipt, to be addressed and dispatched by clerk at the office of the United States Attor-
the clerk of the court to the party to be ney and
served; or (B) by also sending a copy of the sum-
(3) by other means not prohibited by in- mons and complaint by registered or certi-
ternational agreement as may be directed fied mail to the Attorney General of the
by the court. United States at Washington, District of Co-
( g ) Service Upon Infants and Incompetent lumbia, and
Persons. Service upon an infant or an incom- (C) in any action attacking the validity of
petent person in a judicial district of the United an order of an officer or agency of the United
States shall be effected in the manner pre- States not made a party, by also sending a
scribed by the law of the state in which the copy of the summons and complaint by regis-
service is made for the service of summons or tered or certified mail to the officer or agency.
other like process upon any such defendant in (2) Service upon an officer, agency or cor-
an action brought in the courts of general ju- poration of the United States shall be effected
risdiction of that state. Service upon an infant by serving the United States in the manner
or an incompetent person in a place not within prescribed by paragraph (1) of this subdivi-
any judicial district of the United States shall be sion and also by sending a copy of the sum-
effected in the manner prescribed by para- mons and of the complaint by registered or
graph (2)(A) or (2)(B) of subdivision (f) or by certified mail to the officer, agency or corpo-
such means as the court may direct. ration.
(h) Service Upon Corporations and Associa- (3) The court shall allow a reasonable
tions. Unless otherwise provided by federal time for service of process under this subdi-
law, service upon a domestic or foreign cor- vision for the purpose of curing the failure to
poration or upon a partnership or other in- serve multiple officers, agencies or corpora-
corporated association that is subject to suit tions of the United States if the plaintiff has ef-
under a common name, and from which a fected service on either the United States At-
waiver of service has not been obtained and torney or the Attorney General of the United
filed, shall be effected: States.
(1) in a judicial district of the United ( j ) Service Upon Foreign, State or Local
States in the manner prescribed for individu- Governments.
als by subdivision (e)(1), or by delivering a (1) Service upon a foreign state or a po-
copy of the summons and of the complaint to litical subdivision, agency or instrumentality
an officer, a managing or general agent, or to thereof shall be effected pursuant to 28 U.S.C.
any other agent authorized by appointment or §1608.
by law to receive service of process and, if the (2) Service upon a state, municipal cor-
agent is one authorized by statute to receive poration or other governmental organization
APPENDIX B 641
subject to suit shall be effected by delivering fected within a specified time; provided that if
a copy of the summons and of the complaint the plaintiff shows good cause for the failure,
to its chief executive officer or by serving the the court shall extend the time for service for
summons and complaint in the manner pre- an appropriate period. This subdivision does
scribed by the law of that state for the service not apply to service in a foreign country pur-
of summons or other like process upon any suant to subdivision (f) or (j)(1).
such defendant. (n) Seizure of Property; Service of Summons
(k) Territorial Limits of Effective Service. Not Feasible.
(1) Service of a summons or filing a (1) If a statute of the United States so pro-
waiver of service is effective to establish ju- vides, the court may assert jurisdiction over
risdiction over the person of a defendant property. Notice to claimants of the property
(A) who could be subjected to the juris- shall then be sent in the manner provided by
diction of a court of general jurisdiction in the the statute or by service of a summons under
state in which the district court is located, or this Rule.
(B) who is a party joined under Rule 14 or (2) Upon a showing that personal jurisdic-
rule 19 and is served at a place within a judi- tion over a defendant cannot, in the district
cial district of the United States and not more where the action is brought, be obtained with
than 100 miles from the place from which the reasonable efforts by service of summons in
summons issues, or any manner authorized by this Rule, the court
(C) who is subject to the federal inter- may assert jurisdiction over any of the defen-
pleader jurisdiction under 28 U.S.C. §1335, or dant’s assets found within the district by seiz-
(D) when authorized by a statute of the ing the assets under the circumstances and in
United States. the manner provided by the law of the State in
(2) If the exercise of jurisdiction is con- which the district court is located.
sistent with the Constitution and laws of the
Rule 4.1. Service of Other Process.
United States, serving a summons or filing a
waiver of service is also effective, with re- (a) Generally. Process other than a summons
spect to claims arising under federal law, to as provided in Rule 4 or subpoena as pro-
establish personal jurisdiction over the per- vided in Rule 45 shall be served by a United
son of any defendant who is not subject to the States marshal, a deputy United States mar-
jurisdiction of the courts of general jurisdic- shal or a person specially appointed for that
tion of any state. purpose, who shall make proof of service as
( l) Proof of Service. If service is not waived, provided in Rule 4(l). The process may be
the person effecting service shall make proof served anywhere within the territorial limits
thereof to the court. If service is made by a of the State in which the district court is lo-
person other than a United States marshal or cated, and, when authorized by a statute of
deputy United States marshal, the person the United States, beyond the territorial lim-
shall make affidavit thereof. Proof of service its of that State.
in a place not within any judicial district of (b) Enforcement of Orders; Commitment for
the United States shall, if effected under para- Civil Contempt. An order of civil commitment
graph (1) of subdivision (f), be made pur- of a person held to be in contempt of a decree
suant to the applicable treaty or convention, or injunction issued to enforce the laws of the
and shall, if effected under paragraph (2) or United States may be served and enforced in
(3) thereof, include a receipt signed by the ad- any district. Other orders in civil contempt
dressee or other evidence of delivery to the proceedings shall be served in the State in
addressee satisfactory to the court. Failure to which the court issuing the order to be en-
make proof of service does not affect the va- forced is located or elsewhere within the
lidity of the service. The court may allow United States if not more than 100 miles from
proof of service to be amended. the place at which the order to be enforced
(m) Time Limit for Service. If service of the was issued.
summons and complaint is not made upon a
defendant within 120 days after the filing of Rule 5. Service and Filing of Pleadings
the complaint, the court, upon motion or on and Other Papers.
its own initiative after notice to the plaintiff, (a) Service: When Required. Except as oth-
shall dismiss the action without prejudice as erwise provided in these rules, every order
to that defendant or direct that service be ef- required by its terms to be served, every
642 APPENDIX B
pleading subsequent to the original coming and service thereof upon the plaintiff con-
plaint unless the court otherwise orders be- stitutes due notice of it to the parties. A copy
cause of numerous defendants, every paper of every such order shall be served upon the
relating to discovery required to be served parties in such manner and form as the court
upon a party unless the court otherwise or- directs.
ders, every written motion other than one (d) Filing; Certificate of Service. All papers af-
which may be heard ex parte, and every writ- ter the complaint required to be served upon
ten notice, appearance, demand, offer of judg- a party, together with a certificate of service,
ment, designation of record on appeal, and shall be filed with the court within a reason-
similar paper shall be served upon each of able time after service, but the court may on
the parties. No service need be made on par- motion of a party or on its own initiative order
ties in default for failure to appear except that that depositions upon oral examination and
pleadings asserting new or additional claims interrogatories, requests for documents, re-
for relief against them shall be served upon quests for admission, and answers and re-
them in the manner provided for service of sponses thereto not be filed unless on order of
summons in Rule 4. the court or for use in the proceeding.
In an action begun by seizure of property, (e) Filing with the Court Defined. The filing
in which no person need be or is named as de- of papers with the court as required by these
fendant, any service required to be made Rules shall be made by filing them with the
prior to the filing of an answer, claim, or ap- clerk of the court, except that the judge may
pearance shall be made upon the person hav- permit the papers to be filed with the judge,
ing custody or possession of the property at in which event the judge shall note thereon
the time of its seizure. the filing date and forthwith transmit them to
(b) Same: How Made. Whenever under these the office of the clerk. A court may by local
rules service is required or permitted to be rule permit papers to be filed, signed or veri-
made upon a party represented by an attorney, fied by electronic means that are consistent
the service shall be made upon the attorney with technical standards, if any, which estab-
unless service upon the party is ordered by lishes the Judicial Conference of the United
the court. Service upon the attorney or upon a States. A paper filed by electronic means in
party shall be made by delivering a copy to the compliance with a local rule constitutes a
attorney or party or by mailing it to the attor- written paper for the purpose of applying
ney or party at the attorney’s or party’s last- these Rules. The clerk shall not refuse to ac-
known address or, if no address is known, by cept for filing any paper presented for that
leaving it with the clerk of the court. Delivery purpose solely because it is not presented in
of a copy within this rule means: handing it to proper form as required by these Rules or by
the attorney or to the party; or leaving it at the any local rules or practices.
attorney’s or party’s office with a clerk or
other person in charge thereof; or, if there is no Rule 6. Time.
one in charge, leaving it in a conspicuous place (a) Computation. In computing any period
therein; or, if the office is closed or the person of time prescribed or allowed by these
to be served has no office, leaving it at the per- Rules, by the local rules of any district
son’s dwelling house or usual place of abode court, by order of court, or by any applica-
with some person of suitable age and discre- ble statute, the day of the act, event or de-
tion then residing therein. Service by mail is fault from which the designated period of
complete upon mailing. time begins to run shall not be included. The
(c) Same: Numerous Defendants. In any ac- last day of the period so computed shall be
tion in which there are unusually large num- included. The last day of the period so com-
bers of defendants, the court, upon motion or puted shall be included, unless it is a Satur-
of its own initiative, may order that service of day, a Sunday or a legal holiday or, when the
the pleadings of the defendants and replies act to be done is the filing of a paper in
thereto need not be made as between the de- court, a day on which weather or other con-
fendants and that any cross-claim, counter- ditions have made the office of the clerk of
claim or matter constituting an avoidance or the district court inaccessible, in which
affirmative defense contained therein shall be event the period runs until the end of the
deemed to be denied or avoided by all other next day which is not one of the aforemen-
parties and that the filing of any such plead- tioned days. When the period of time pre-
APPENDIX B 643
scribed or allowed is less than 11 days, in- III. Pleadings and Motions.
termediate Saturdays, Sundays and legal
Rule 7. Pleadings Allowed; Form
holidays shall be excluded in the computa-
of Motions.
tion. As used in this Rule and in Rule 77(c),
“legal holiday” includes New Year’s Day, (a) Pleadings. There shall be a complaint and
Birthday of Martin Luther King, Jr., Wash- an answer; a reply to a counterclaim denomi-
ington’s Birthday, Memorial Day, Indepen- nated as such; an answer to a cross-claim, if
dence Day, Labor Day, Columbus Day, Veter- the answer contains a cross-claim; a third-
ans Day, Thanksgiving Day, Christmas Day party complaint, if a person who was not an
and any other day appointed as a holiday by original party is summoned under the provi-
the President or the Congress of the United sions of Rule 14; and a third-party answer, if a
States or by the state in which the district third-party complaint is served. No other
court is held. pleading shall be allowed, except that the
(b) Enlargement. When by these Rules or by court may order a reply to an answer or a
a notice given thereunder or by order of third-party answer.
court an act is required or allowed to be (b) Motion and Other Papers.
done at or within a specified time, the court (1) An application to the court for an or-
for cause shown may at any time in its dis- der shall be by motion which, unless made
cretion (1) with or without notice or notice during a hearing or trial, shall be made in writ-
order the period enlarged if request therefor ing, shall state with particularity the grounds
is made before the expiration of the period therefor, and shall set forth the relief or order
originally prescribed or as extended by a sought. The requirement of writing is fulfilled
previous order, or (2) upon motion made af- if the motion is stated in a written notice of
ter the expiration of the specified period per- the hearing of the motion.
mit the act to be done where the failure to (2) The Rules applicable to captions and
act was the result of excusable neglect; but it other matters of form of pleadings apply to all
may not extend the time for taking any ac- motions and other papers provided for by
tion under Rules 50(b) and (c)(2), 52(b), these Rules.
59(b), (d) and (e), 60(b) and 74(a), except to (3) All motions shall be signed in accor-
the extent and under the conditions stated dance with Rule 11.
in them. (c) Demurrers, Pleas, Etc., Abolished. De-
(c) Unaffected by Expiration of Term. Re- murrers, pleas and exceptions for insuffi-
scinded Feb. 28, 1966, eff. July 1, 1966. ciency of a pleading shall not be used.
(d) For Motions - Affidavits. A written mo-
tion, other than one which may be heard ex Rule 8. General Rules of Pleading.
parte, and notice of the hearing thereof shall (a) Claims for Relief. A pleading which sets
be served not later than 5 days before the forth a claim for relief, whether an original
time specified for the hearing, unless a differ- claim, counterclaim, cross-claim or third-
ent period is fixed by these Rules or by order party claim, shall contain (1) a short and plain
of the court. Such an order may for cause statement of the grounds upon which the
shown be made on ex parte application. court’s jurisdiction depends, unless the court
When a motion is supported by affidavit, the already has jurisdiction and the claim needs
affidavit shall be served with the motion; and, no new grounds of jurisdiction to support it,
except as otherwise provided in Rule 59(c), (2) a short and plain statement of the claim
opposing affidavits may be served not later showing that the pleader is entitled to relief,
than 1 day before the hearing, unless the and (3) a demand for judgment for the relief
court permits them to be served at some the pleader seeks. Relief in the alternative or
other time. of several different types may be demanded.
(e) Additional Time After Service by Mail. (b) Defenses; Forms of Denials. A party shall
Whenever a party has the right or is required state in short and plain terms the party’s de-
to do some act or take some proceedings fenses to each claim asserted and shall admit
within a prescribed period after the service of or deny the averments upon which the ad-
a notice or other paper upon the party and verse party relies. If a party is without knowl-
the notice or paper is served upon the party edge or information sufficient to form a belief
by mail, 3 days shall be added to the pre- as to the truth of an averment, a party shall
scribed period. so state and this has the effect of a denial.
644 APPENDIX B
Denials shall fairly meet the substance of the as many separate claims or defenses as the
averments denied. When a pleader intends in party has regardless of consistency and
good faith to deny only a part or a qualifica- whether based on legal, equitable or maritime
tion of an averment, the pleader shall specify grounds. All statements shall be made subject
so much of it as is true and material and shall to the obligations set forth in Rule 11.
deny only the remainder. Unless the pleader (f) Construction of Pleadings. All pleadings
intends in good faith to controvert all the shall be so construed as to do substantial
averments of the preceding pleading, the justice.
pleader may make denials as specific denials
of designated averments or paragraphs or Rule 9. Pleading Special Matters.
may generally deny all of the averments ex- (a) Capacity. It is not necessary to aver the
cept such designated averments or para- capacity of a party to sue or be sued or the au-
graphs as the pleader expressly admits; but, thority of a party to sue or be sued in a repre-
when the pleader does so intend to contro- sentative capacity or the legal existence of an
vert all of its averments, including averments organized association of persons that is made
of the grounds upon which the court’s juris- a party, except to the extent required to show
diction depends, the pleader may do so by the jurisdiction of the court. When a party de-
general denial subject to the obligations set sires to raise an issue as to the legal existence
forth in Rule 11. of any party or the capacity of any party to
(c) Affirmative Defenses. In pleading to a sue or be sued or the authority of a party to
preceding pleading, a party shall set forth sue or be sued in a representative capacity,
affirmatively accord and satisfaction, arbi- the party desiring to raise the issue shall do
tration and award, assumption of risk, con- so by specific negative averment, which shall
tributory negligence, discharge in bank- include such supporting particulars as are
ruptcy, duress, estoppel, failure of peculiarly within the pleader’s knowledge.
consideration, fraud, illegality, injury by fel- (b) Fraud, Mistake, Condition of the Mind. In
low servant, laches, license, payment, re- all averments of fraud or mistake, the circum-
lease, res judicata, statute of frauds, statute stances constituting fraud or mistake shall be
of limitations, waiver and any other matter stated with particularity. Malice, intent,
constituting an avoidance or affirmative de- knowledge and other condition of mind of a
fense. When a party has mistakenly desig- person may be averred generally.
nated a defense as a counterclaim or a coun- (c) Conditions Precedent. In pleading the
terclaim as a defense, the court on terms, if performance or occurrence of conditions
justice so requires, shall treat the pleading precedent, it is sufficient to aver generally
as if there had been a proper designation. that all conditions precedent have been per-
(d) Effect of Failure to Deny. Averments in a formed or have occurred. A denial of per-
pleading to which a responsive pleading is re- formance or occurrence shall be made specif-
quired, other than those as to the amount of ically and with particularity.
damage, are admitted when not denied in the (d) Official Document or Act. In pleading an
responsive pleading. Averments in a pleading official document or official act, it is sufficient
to which no responsive pleading is required or to aver that the document was issued or the
permitted shall be taken as denied or avoided. act done in compliance with law.
(e) Pleading to Be Concise and Direct; (e) Judgment. In pleading a judgment or de-
Consistency. cision of a domestic or foreign court, judicial
(1) Each averment of a pleading shall be or quasi-judicial tribunal, or of a board or of-
simple, concise and direct. No technical ficer, it is sufficient to aver the judgment or
forms of pleadings or motions are required. decision without setting forth matter show-
(2) A party may set forth two or more ing jurisdiction to render it.
statements of a claim or defense alternately or (f) Time and Place. For the purpose of testing
hypothetically, either in one court or defense the sufficiency of a pleading, averments of
or in separate counts or defenses. When two time and place are material and shall be con-
or more statements are made in the alternative sidered like all other averments of material
and one of them if made independently would matter.
be sufficient, the pleading is not made insuffi- (g) Special Damage. When items of special
cient by the sufficiency of one or more of the damage are claimed, they shall be specifically
alternative statements. A party may also state stated.
APPENDIX B 645
(h) Admiralty and Maritime Claims. A plead- by an attorney, shall be signed by the party.
ing or count setting forth a claim for relief Each paper shall state the signer’s address
within the admiralty and maritime jurisdic- and telephone number, if any. Except when
tion that is also within the jurisdiction of the otherwise specifically provided by rule or
district court on some other ground may con- statute, pleadings need not be verified or ac-
tain a statement identifying the claim as an companied by affidavit. An unsigned paper
admiralty or maritime claim for the purposes shall be stricken unless omission of the sig-
of Rules 14(c), 38(e), 82, and the Supplemen- nature is corrected promptly after being
tal Rules for Certain Admiralty and Maritime called to the attention of the attorney or
Claims. If the claim is cognizable only in ad- party.
miralty, it is an admiralty or maritime claim (b) Representations to Court. By presenting
for those purposes whether so identified or to the court (whether by signing, filing, sub-
not. The amendment of a pleading to add or mitting or later advocating) a pleading, writ-
withdraw an identifying statement is gov- ten motion or other paper, an attorney or un-
erned by the principles of Rule 15. A case that represented party is certifying that to the
includes an admiralty or maritime claim best of the person’s knowledge, information
within this subdivision is an admiralty case and belief, formed after an inquiry reasonable
within 28 U.S.C. §1292(a)(3). under the circumstances,
(1) it is not being presented for any im-
Rule 10. Form of Pleadings. proper purpose, such as to harass or to cause
(a) Caption; Names of Parties. Every plead- unnecessary delay or needless increase in
ing shall contain a caption setting forth the the cost of litigation;
name of the court, the title of the action, the (2) the claims, defenses and other legal
file number and a designation as in Rule 7(a). contentions therein are warranted by existing
In the complaint the title of the action shall in- law or by a non-frivolous argument for the ex-
clude the names of all parties, but in other tension, modification or reversal of existing
pleadings it is sufficient to state the name of law or the establishment of new law;
the first party on each side with an appropri- (3) the allegations and other factual con-
ate indication of other parties. tentions have evidentiary support or, if specif-
(b) Paragraphs; Separate Statements. All ically so identified, are likely to have eviden-
averments of claim or defense shall be made tiary support after a reasonable opportunity
in numbered paragraphs, the contents of for further investigation or discovery; and
each of which shall be limited as far as prac- (4) the denials of factual contentions are
ticable to a statement of a single set of cir- warranted on the evidence or, if specifically
cumstances; and a paragraph may be referred so identified, are reasonably based on a lack
to by number in all succeeding pleadings. of information or belief.
Each claim founded upon a separate transac- (c) Sanctions. If, after notice and a reasonable
tion or occurrence and each defense other opportunity to respond, the court determines
than denials shall be stated in a separate that subdivision (b) has been violated, the
count or defense whenever a separation facil- court may, subject to the conditions stated
itates the clear presentation of the matters below, impose an appropriate sanction upon
set forth. the attorneys, law firms or parties that have
(c) Adoption by Reference; Exhibits. State- violated subdivision (b) or are responsible
ments in a pleading may be adopted by refer- for the violation.
ence in a different part of the same pleading or (1) How Initiated.
in another pleading or in any motion. A copy (A) By Motion. A motion for sanctions under
of any written instrument which is an exhibit this Rule shall be made separately from other
to a pleading is a part thereof for all purposes. motions or requests and shall describe the spe-
cific conduct alleged to violate subdivision (b).
Rule 11. Signing of Pleadings, Motions It shall be served as provided in Rule 5, but shall
and Other Papers; Representations not be filed with or presented to the court un-
to Court; Sanctions. less, within 21 days after service of the motion
(a) Signature. Every pleading, written motion (or such other period as the court may pre-
and other paper shall be signed by at least scribe), the challenged paper, claim, defense,
one attorney of record in the attorney’s indi- contention, allegation or denial is not with-
vidual name, or if the party is not represented drawn or appropriately corrected. If warranted,
646 APPENDIX B
the court may award to the party prevailing on (B) if service of the summons has been
the motion the reasonable expenses and attor- timely waived on request under Rule 4(d),
ney’s fees incurred in presenting or opposing within 60 days after the date when the request
the motion. Absent exceptional circumstances, for waiver was sent, or within 90 days after
a law firm shall be held jointly responsible for vi- that date if the defendant was addressed out-
olations committed by its partners, associates side any judicial district of the United States.
and employees. (2) A party served with a pleading stating
(B) On Court’s Initiative. On its own initia- a cross-claim against that party shall serve an
tive, the court may enter an order describing answer thereto within 30 days after being
the specific conduct that appears to violate served. The plaintiff shall serve a reply to a
subdivision (b) and directing an attorney, counterclaim in the answer within 20 days af-
law firm, or party to show cause why it has ter service of the answer, or, if a reply is or-
not violated subdivision (b) with respect dered by the court, within 20 days after ser-
thereto. vice of the order, unless the order otherwise
(2) Nature of Sanctions; Limitations. A sanc- directs.
tion imposed for violation of this Rule shall be (3) The United States or an officer or
limited to what is sufficient to deter repetition agency thereof shall serve an answer to the
of such conduct or comparable conduct by complaint or to a cross-claim, or a reply to a
others similarly situated. Subject to the limi- counterclaim, within 60 days after the service
tations in subparagraphs (A) and (B), the upon the United States Attorney of the plead-
sanction may consist of, or include, directives ing in which the claim is asserted.
of a nonmonetary nature, an order to pay a (4) Unless a different time is fixed by
penalty into court, or, if imposed on motion court order, the service of a motion permitted
and warranted for effective deterrence, an or- under this Rule alters these periods of time as
der directing payment to the movant of some follows:
or all of the reasonable attorneys’ fees and (A) if the court denies the motion or post-
other expenses incurred as a direct result of pones its disposition until the trial on the mer-
the violation. its, the responsive pleading shall be served
(A) Monetary sanctions may not be within 10 days after notice of the court’s ac-
awarded against a represented party for a vi- tion; or
olation of subdivision (b)(2). (B) if the court grants a motion for a more
(B) Monetary sanctions may not be definite statement, the responsive pleading
awarded on the court’s initiative unless the shall be served within 10 days after the serv-
court issues its order to show cause before a ice of the more definite statement.
voluntary dismissal or settlement of the (b) How Presented. Every defense, in law or
claims made by or against the party which is, fact, to a claim for relief in any pleading,
or whose attorneys are, to be sanctioned. whether a claim, counterclaim, cross-claim or
(3) Order. When imposing sanctions, the third-party claim, shall be asserted in the re-
court shall describe the conduct determined sponsive pleading thereto if one is required,
to constitute a violation of this Rule and ex- except that the following defenses may at the
plain the basis for the sanction imposed. option of the pleader be made by motion: (1)
(d) Inapplicability to Discovery. Subdivisions lack of jurisdiction over the subject matter, (2)
(a) through (c) of this Rule do not apply to dis- lack of jurisdiction over the person, (3) im-
closures and discovery requests, responses, proper venue, (4) insufficiency of process, (5)
objections and motions that are subject to the insufficiency of service of process, (6) failure
provisions of Rules 26 through 37. to state a claim upon which relief can be
granted, (7) failure to join a party under Rule
Rule 12. Defenses and Objections— 19. A motion making any of these defenses
When and How Presented—by Pleading shall be made before pleading if a further
or Motion—Motion for Judgment on pleading is permitted. No defense or objection
the Pleadings. is waived by being joined with one or more
(a) When Presented. other defenses or objections in a responsive
(1) Unless a different time is prescribed pleading or motion. If a pleading sets forth a
in a statute of the United States, a defendant claim for relief to which the adverse party is
shall serve an answer not required to serve a responsive pleading,
(A) within 20 days after being served with the adverse party may assert at the trial any
the summons and complaint, or defenses in law or fact to that claim for relief.
APPENDIX B 647
If, on a motion asserting the defense numbered may join with it any other motions herein pro-
(6) to dismiss for failure of the pleading to vided for and then available to the party. If a
state a claim upon which relief can be granted, party makes a motion under this Rule but
matters outside the pleading are presented to omits therefrom any defense or objection
and not excluded by the court, the motion then available to the party which this Rule
shall be treated as one for summary judgment permits to be raised by motion, the party
and disposed of as provided in Rule 56, and all shall not thereafter make a motion based on
parties shall be given reasonable opportunity the defense or objection so omitted, except a
to present all material made pertinent to such motion as provided in subdivision (h)(2)
a motion by Rule 56. hereof on any of the grounds there stated.
(c) Motion for Judgment on the Pleadings. Af- (h) Waiver or Preservation of Certain
ter the pleadings are closed but within such Defenses.
time as not to delay the trial, any party may (1) A defense of lack of jurisdiction over
move for judgment on the pleadings. If, on a the person, improper venue, insufficiency of
motion for judgment on the pleadings, matters process or insufficiency of service of process
outside the pleadings are presented to and not is waived (A) if omitted from a motion in the
excluded by the court, the motion shall be circumstances described in subdivision (g),
treated as one for summary judgment and dis- or (B) if it is neither made by motion under
posed of as provided in Rule 56, and all parties this Rule nor included in a responsive plead-
shall be given reasonable opportunity to pre- ing or an amendment thereof permitted by
sent all material made pertinent to such a mo- Rule 15(a) to be made as a matter of course.
tion by Rule 56. (2) A defense of failure to state a claim
(d) Preliminary Hearings. The defenses upon which relief can be granted, a defense of
specifically enumerated (1)-(7) in subdivision failure to join a party indispensable under
(b) of this Rule, whether made in a pleading or Rule 19, and an objection of failure to state a
by motion, and the motion for judgment men- legal defense to a claim may be made in any
tioned in subdivision (c) of this Rule shall be pleading permitted or ordered under Rule
heard and determined before trial on applica- 7(a), or by motion for judgment on the plead-
tion of any party, unless the court orders that ings, or at the trial on the merits.
the hearing and determination thereof be de- (3) Whenever it appears by suggestion of
ferred until the trial. the parties or otherwise that the court lacks
(e) Motion for More Definite Statement. If a jurisdiction of the subject matter, the court
pleading to which a responsive pleading is shall dismiss the action.
permitted is so vague or ambiguous that a
party cannot reasonably be required to frame Rule 13. Counterclaim and Cross-Claim.
a responsive pleading, the party may move (a) Compulsory Counterclaims. A pleading
for a more definite statement before interpos- shall state as a counterclaim any claim which at
ing a responsive pleading. The motion shall the time of serving the pleading the pleader has
point out the defects complained of and the against any opposing party, if it arises out of
details desired. If the motion is granted and the transaction or occurrence that is the sub-
the order of the court is not obeyed within 10 ject matter of the opposing party’s claim and
days after notice of the order or within such does not require for its adjudication the pres-
other time as the court may fix, the court may ence of third parties of whom the court cannot
strike the pleading to which the motion was acquire jurisdiction. But the pleader need not
directed or make such order as it deems just. state the claim if (1) at the time the action was
(f ) Motion to Strike. Upon motion made by a commenced the claim was the subject of an-
party before responding to a pleading or, if no other pending action, or (2) the opposing party
responsive pleading is permitted by these brought suit upon the claim by attachment or
Rules, upon motion made by a party within 20 other process by which the court did not ac-
days after the service of the pleading upon quire jurisdiction to render a personal judg-
the party or upon the court’s own initiative at ment on that claim, and the pleader is not stat-
any time, the court may order stricken from ing any counterclaim under this Rule 13.
any pleading any insufficient defense or any ( b) Permissive Counterclaims. A pleading
redundant, immaterial, impertinent or scan- may state as a counterclaim any claim against
dalous matter. an opposing party not arising out of the trans-
(g) Consolidation of Defenses in Motion. A action or occurrence that is the subject mat-
party who makes a motion under this Rule ter of the opposing party’s claim.
648 APPENDIX B
(c) Counterclaim Exceeding Opposing to the action who is or may be liable to the
Claim. A counterclaim may or may not dimin- third-party plaintiff for all or part of the plain-
ish or defeat the recovery sought by the op- tiff’s claim against the third-party plaintiff.
posing party. It may claim relief exceeding in The third-party plaintiff need not obtain leave
amount or different in kind from that sought to make the service if the third-party plaintiff
in the pleading of the opposing party. files the third-party complaint not later than
(d) Counterclaim Against the United States. 10 days after serving the original answer. Oth-
These Rules shall not be construed to enlarge erwise the third-party plaintiff must obtain
beyond the limits now fixed by law the right to leave on motion upon notice to all parties to
assert counterclaims or to claim credits the action. The person served with the sum-
against the United States or an officer or mons and third-party complaint, hereinafter
agency thereof. called the third-party defendant, shall make
(e) Counterclaim Maturing or Acquired af- any defenses to the third-party plaintiff’s
ter Pleading. A claim which either matured claim as provided in Rule 12 and any counter-
or was acquired by the pleader after serving claims against the third-party plaintiff and
a pleading may, with the permission of the cross-claims against other third-party defen-
court, be presented as a counterclaim by dants as provided in Rule 13. The third-party
supplemental pleading. defendant may assert against the plaintiff any
(f ) Omitted Counterclaim. When a pleader defenses which the third-party plaintiff has to
fails to set up a counterclaim through over- the plaintiff’s claim. The third-party defen-
sight, inadvertence or excusable neglect, or dant may also assert any claim against the
when justice requires, the pleader may by plaintiff arising out of the transaction or oc-
leave of court set up the counterclaim by currence that is the subject matter of the
amendment. plaintiff’s claim against the third-party plain-
(g) Cross-Claim Against Co-Party. A pleading tiff. The plaintiff may assert any claim against
may state as a cross-claim any claim by one the third-party defendant arising out of the
party against a co-party arising out of the transaction or occurrence that is the subject
transaction or occurrence that is the subject matter of the plaintiff’s claim against the
matter either of the original action or of a third-party plaintiff, and the third-party de-
counterclaim therein or relating to any prop- fendant thereupon shall assert any defenses
erty that is the subject matter of the original as provided in Rule 12 and any counterclaims
action. Such cross-claim may include a claim and cross-claims as provided in Rule 13. Any
that the party against whom it is asserted is party may move to strike the third-party
or may be liable to the cross-claimant for all claim, or for its severance or separate trial. A
or part of a claim asserted in the action third-party defendant may proceed under
against the cross-claimant. this Rule against any person not a party to the
( h) Joinder of Additional Parties. Persons action who is or may be liable to the third-
other than those made parties to the original party defendant for all or part of the claim
action may be made parties to a counterclaim made in the action against the third-party de-
or cross-claim in accordance with the provi- fendant. The third-party complaint, if within
sions of Rules 19 and 20. the admiralty and maritime jurisdiction, may
(i) Separate Trials; Separate Judgments. If be in rem against a vessel, cargo or other
the court orders separate trials as provided in property subject to admiralty or maritime
Rule 42(b), judgment on a counterclaim or process in rem, in which case references in
cross-claim may be rendered in accordance this Rule to the summons include the warrant
with the terms of Rule 54(b) when the court of arrest and references to the third-party
has jurisdiction so to do, even if the claims of plaintiff or defendant include, where appro-
the opposing party have been dismissed or priate, the claimant of the property arrested.
otherwise disposed of. (b) When Plaintiff May Bring in Third
Party. When a counterclaim is asserted
Rule 14. Third-Party Practice. against a plaintiff, the plaintiff may cause a
(a) When Defendant May Bring in Third third party to be brought in under circum-
Party. At any time after commencement of stances which under this Rule would entitle
the action a defending party, as a third-party a defendant to do so.
plaintiff, may cause a summons and com- (c) Admiralty and Maritime Claims. When a
plaint to be served upon a person not a party plaintiff asserts an admiralty or maritime
APPENDIX B 649
claim within the meaning of Rule 9(h), the de- that the admission of such evidence would
fendant or claimant, as a third-party plaintiff, prejudice the party in maintaining the party’s
may bring in a third-party defendant who may action or defense upon the merits. The court
be wholly or partly liable, either to the plain- may grant a continuance to enable the ob-
tiff or to the third-party plaintiff, by way of jecting party to meet such evidence.
remedy over, contribution or otherwise on (c) Relation Back of Amendments. An
account of the same transaction, occurrence amendment of a pleading relates back to the
or series of transactions or occurrences. In date of the original pleading when:
such a case, the third-party plaintiff may also (1) relation back is permitted by the law
demand judgment against the third-party de- that provides the statute of limitations appli-
fendant in favor of the plaintiff, in which event cable to the action, or
the third-party defendant shall make any de- (2) the claim or defense asserted in the
fenses to the claim of the plaintiff as well as to amended pleading arose out of the conduct,
that of the third-party plaintiff in the manner transaction or occurrence set forth or attemp-
provided in Rule 12 and the action shall pro- ted to be set forth in the original pleading; or
ceed as if the plaintiff had commenced it (3) the amendment changes the party or
against the third-party defendant as well as the naming of the party against whom a claim
the third-party plaintiff. is asserted if the foregoing provision (2) is
satisfied and, within the period provided by
Rule 15. Amended and Supplemental Rule 4(m) for service of the summons and
Pleadings. complaint, the party to be brought in by
(a) Amendments. A party may amend the amendment (A) has received such notice of
party’s pleading once as a matter of course at the institution of the action that the party will
any time before a responsive pleading is not be prejudiced in maintaining a defense on
served or, if the pleading is one to which no re- the merits, and (B) knew or should have
sponsive pleading is permitted and the action known that, but for a mistake concerning the
has not been placed upon the trial calendar, identity of the proper party, the action would
the party may so amend it at any time within have been brought against the party.
20 days after it is served. Otherwise, a party The delivery or mailing of process to the
may amend the party’s pleading only by leave United States Attorney or United States At-
of court or by written consent of the adverse torney’s designee or the Attorney General of
party; and leave shall be freely given when jus- the United States, or an agency or officer who
tice so requires. A party shall plead in re- would have been a proper defendant if
sponse to an amended pleading within the named, satisfies the requirement of subpara-
time remaining for response to the original graphs (A) and (B) of this paragraph (3) with
pleading or within 10 days after service of the respect to the United States or any agency or
amended pleading, whichever period may be officer thereof to be brought into the action
the longer, unless the court otherwise orders. as a defendant.
(b) Amendments to Conform to the Evi- (d) Supplemental Pleadings. Upon motion of
dence. When issues not raised by the plead- a party the court may, upon reasonable notice
ings are tried by express or implied consent and upon such terms as are just, permit the
of the parties, they shall be treated in all re- party to serve a supplemental pleading set-
spects as if they had been raised in the plead- ting forth transactions or occurrences or
ings. Such amendment of the pleadings as events which have happened since the date of
may be necessary to cause them to conform the pleading sought to be supplemented. Per-
to the evidence and to raise these issues may mission may be granted even though the orig-
be made upon motion of any party at any inal pleading is defective in its statement of a
time, even after judgment; but failure so to claim for relief or defense. If the court deems
amend does not affect the result of the trial of it advisable that the adverse party plead to
these issues. If evidence is objected to at the the supplemental pleading, it shall so order,
trial on the ground that it is not within the is- specifying the time therefor.
sues made by the pleadings, the court may al-
low the pleadings to be amended and shall do Rule 16. Pretrial Conferences; Scheduling;
so freely when the presentation of the merits Management.
of the action will be subserved thereby and (a) Pretrial Conferences; Objectives. In any
the objecting party fails to satisfy the court action, the court may in its discretion, direct
650 APPENDIX B
the attorneys for the parties and any unrep- unnecessary proof, stipulations regarding the
resented parties to appear before it for a con- authenticity of documents and advance rulings
ference or conferences before trial for such from the court on the admissibility of evidence;
purposes as: (4) the avoidance of unnecessary proof
(1) expediting the disposition of the and of cumulative evidence and limitations or
action; restrictions on the use of testimony under
(2) establishing early and continuing Rule 702 of the Federal Rules of Evidence;
control so that the case will not be protracted (5) the appropriateness and timing of
because of lack of management; summary adjudication under Rule 56;
(3) discouraging wasteful pretrial (6) the control and scheduling of dis-
activities; covery, including orders affecting disclosures
(4) improving the quality of the trial and discovery pursuant to Rule 26 and Rules
through more thorough preparation, and; 29 through 37;
(5) facilitating the settlement of the case. (7) the identification of witnesses and
(b) Scheduling and Planning. Except in cate- documents, the need and schedule for filing
gories of actions exempted by district court and exchanging pretrial briefs, and the date
rule as inappropriate, the district judge, or a or dates for further conferences and for trial;
magistrate judge when authorized by district (8) the advisability or referring matters
court rule, shall, after receiving the report to a magistrate judge or master;
from the parties under Rule 26(f) or after con- (9) settlement and the use of special
sulting with the attorneys for the parties and procedures to assist in resolving the dispute
any unrepresented parties by a scheduling when authorized by statute or local rule;
conference, telephone, mail or other suitable (10) the form and substance of the pre-
means, enter a scheduling order that limits trial order;
the time: (11) the disposition of pending motions;
(1) to join other parties and to amend the (12) the need for adopting special proce-
pleadings; dures for managing potentially difficult or
(2) to file motions; and protracted actions that may involve complex
(3) to complete discovery. issues, multiple parties, difficult legal ques-
The scheduling order also may include: tions or unusual proof problems; and
(4) modification of the time for disclo- (13) an order for a separate trial pur-
sures under Rules 26(a) and 26(e)(1) and of suant to Rule 42(b) with respect to a claim,
the extent of discovery to be permitted; counterclaim, cross-claim or third-party
(5) the date or dates for conferences be- claim, or with respect to any particular issue
fore trial, a final pretrial conference, and in the case;
trial; and (14) an order directing a part or parties
(6) any other matters appropriate in the to present evidence early in the trial with re-
circumstances of the case. spect to a manageable issue that could, on
The order shall issue as soon as practica- the evidence, be the basis for a judgment as a
ble but in any event within 90 days after the matter of law under Rule 50(a) or a judgment
appearance of a defendant and within 120 on partial findings under Rule 52(c);
days after the complaint has been served on a (15) an order establishing a reasonable
defendant. A schedule shall not be modified limit on the time allowed for presenting evi-
except upon a showing of good cause and by dence; and
leave of the district judge or, when authorized (16) such other matters as may facilitate
by local rule, by a magistrate judge. the just, speedy and inexpensive disposition
(c) Subjects for Consideration at Pretrial of the action.
Conferences. At any conference under this At least one of the attorneys for each
Rule consideration may be given, and the court party participating in any conference before
may take appropriate action with respect to: trial shall have authority to enter into stipula-
(1) the formulation and simplification of tions and to make admissions regarding all
the issues, including the elimination of frivo- matters that the participants may reasonably
lous claims or defenses; anticipate may be discussed. If appropriate,
(2) the necessity or desirability of amend- the court may require that a party or its rep-
ments to the pleadings; resentative be present or reasonably avail-
(3) the possibility of obtaining admis- able by telephone in order to consider possi-
sions of fact and of documents which will avoid ble settlement of the dispute.
APPENDIX B 651
(d) Final Pretrial Conference. Any final pre- for ratification of commencement of the ac-
trial conference shall be held as close to the tion by, or joinder or substitution of, the real
time of trial as reasonable under the circum- party in interest; and such ratification, join-
stances. The participants at any such confer- der or substitution shall have the same effect
ence shall formulate a plan for trial, including as if the action had been commenced in the
a program for facilitating the admission of ev- name of the real party in interest.
idence. The conference shall be attended by (b) Capacity to Sue or Be Sued. The capacity
at least one of the attorneys who will conduct of an individual, other than one acting in a
the trial for each of the parties and by any un- representative capacity, to sue or be sued
represented parties. shall be determined by the law of the indi-
(e) Pretrial Orders. After any conference held vidual’s domicile. The capacity of a corpora-
pursuant to this Rule, an order shall be entered tion to sue or be sued shall be determined by
reciting the action taken. This order shall con- the law under which it was organized. In all
trol the subsequent course of the action unless other cases capacity to sue or be sued shall
modified by a subsequent order. The order fol- be determined by the law of the state in
lowing a final pretrial conference shall be mod- which the district court is held, except (1)
ified only to prevent manifest injustice. that a partnership or other unincorporated
(f ) Sanctions. If a party or party’s attorney association, which has no such capacity by
fails to obey a scheduling or pretrial order, or the law of such state, may sue or be sued in
if no appearance is made on behalf of a party its common name for the purpose of enforc-
at a scheduling or pretrial conference, or if a ing for or against it a substantive right exist-
party or party’s attorney is substantially un- ing under the Constitution or laws of the
prepared to participate in the conference, or if United States, and (2) that the capacity of a
a party or party’s attorney fails to participate receiver appointed by a court of the United
in good faith, the judge, upon motion or the States to sue or be sued in a court of the
judge’s own initiative, may make such orders United States is governed by Title 28, U.S.C.
with regard thereto as are just, and among oth- §§754 and 959(a).
ers any of the orders provided in Rule (c) Infants or Incompetent Persons. When-
37(b)(2)(B), (C), (D). In lieu of or in addition to ever an infant or incompetent person has a
any other sanction, the judge shall require the representative, such as a general guardian,
party or the attorney representing the party or committee, conservator or other like fiduci-
both to pay the reasonable expenses incurred ary, the representative may sue or defend on
because of any noncompliance with this Rule, behalf of the infant or incompetent person.
including attorney’s fees, unless the judge An infant or incompetent person who does
finds that the noncompliance was substan- not have a duly appointed representative
tially justified or that other circumstances may sue by a next friend or by a guardian ad
make an award of expenses unjust. litem. The court shall appoint a guardian ad
IV. Parties. litem for an infant or incompetent person not
otherwise represented in an action or shall
Rule 17. Parties Plaintiff and make such other order as it deems proper for
Defendant; Capacity. the protection of the infant or incompetent
(a) Real Party in Interest. Every action shall person.
be prosecuted in the name of the real party in
interest. An executor, administrator, guar- Rule 18. Joinder of Claims and Remedies.
dian, bailee, trustee of an express trust, a (a) Joinder of Claims. A party asserting a
party with whom or in whose name a contract claim to relief as an original claim, counter-
has been made for the benefit of another, or a claim, cross-claim or third-party claim, may
party authorized by statute may sue in that join, either as independent or as alternate
person’s own name without joining the party claims, as many claims, legal, equitable or
for whose benefit the action is brought; and maritime, as the party has against an oppos-
when a statute of the United States so pro- ing party.
vides, an action for the use or benefit of an- (b) Joinder of Remedies; Fraudulent Con-
other shall be brought in the name of the veyances. Whenever a claim is one hereto-
United States. No action shall be dismissed fore cognizable only after another claim has
on the ground that it is not prosecuted in the been prosecuted to a conclusion, the two
name of the real party in interest until a rea- claims may be joined in a single action; but
sonable time has been allowed after objection the court shall grant relief in that action
652 APPENDIX B
only in accordance with the relative sub- (c) Pleading Reasons for Nonjoinder. A
stantive rights of the parties. In particular, a pleading asserting a claim for relief shall state
plaintiff may state a claim for money and a the names, if known to the pleader, of any per-
claim to have set aside a conveyance fraud- sons as described in subdivision (a)(1) - (2)
ulent as to that plaintiff, without first having hereof who are not joined, and the reasons
obtained a judgment establishing the claim why they are not joined.
for money. (d) Exception of Class Actions. This Rule is
subject to the provisions of Rule 23.
Rule 19. Joinder of Persons Needed
for Just Adjudication. Rule 20. Permissive Joinder of Parties.
(a) Persons to Be Joined if Feasible. A person (a) Permissive Joinder. All persons may join
who is subject to service of process and in one action as plaintiffs if they assert any
whose joinder will not deprive the court of ju- right to relief jointly, severally or in the alter-
risdiction over the subject matter of the ac- native in respect of or arising out of the same
tion shall be joined as a party in the action if transaction, occurrence or series of transac-
(1) in the person’s absence complete relief tions or occurrences and if any question of
cannot be accorded among those already par- law or fact common to all these persons will
ties, or (2) the person claims an interest re- arise in the action. All persons (and any ves-
lating to the subject of the action and is so sit- sel, cargo or other property subject to admi-
uated that the disposition of the action in the ralty process in rem) may be joined in one ac-
person’s absence may (i) as a practical mat- tion as defendants if there is asserted against
ter impair or impede the person’s ability to them jointly, severally or in the alternative,
protect that interest or (ii) leave any of the any right to relief in respect of or arising out
persons already parties subject to a substan- of the same transaction, occurrence or series
tial risk of incurring double, multiple or oth- of transactions or occurrences and if any
erwise inconsistent obligations by reason of question of law or fact common to all defen-
the claimed interest. If the person has not dants will arise in the action. A plaintiff or de-
been so joined, the court shall order that the fendant need not be interested in obtaining or
person be made a party. If the person should defending against all the relief demanded.
join as a plaintiff but refuses to do so, the per- Judgment may be given for one or more of the
son may be made a defendant, or, in a proper plaintiffs according to their respective rights
case, an involuntary plaintiff. If the joined to relief, and against one or more defendants
party objects to venue and joinder of that according to their respective liabilities.
party would render the venue of the action (b) Separate Trials. The court may make such
improper, that party shall be dismissed from orders as will prevent a party from being em-
the action. barrassed, delayed or put to expense by the
(b) Determination by Court Whenever inclusion of a party against whom the party
Joinder Not Feasible. If a person as de- asserts no claim and who asserts no claim
scribed in subdivision (a)(1) - (2) hereof against the party, and may order separate tri-
cannot be made a party, the court shall deals or make other orders to prevent delay or
termine whether in equity and good con- prejudice.
science the action should proceed among
the parties before it, or should be dis- Rule 21. Misjoinder and Nonjoinder
missed, the absent person being thus re- of Parties.
garded as indispensable. The factors to be Misjoinder of parties is not ground for dis-
considered by the court include: first, to missal of an action. Parties may be dropped
what extent a judgment rendered in the per- or added by order of the court on motion of
son’s absence might be prejudicial to the any party or of its own initiative at any stage
person or those already parties; second, the of the action and on such terms as are just.
extent to which, by protective provisions in Any claim against a party may be severed
the judgment, by the shaping of relief, or and proceeded with separately.
other measures, the prejudice can be less-
ened or avoided; third, whether a judgment Rule 22. Interpleader.
rendered in the person’s absence will be ad- (1) Persons having claims against the
equate; fourth, whether the plaintiff will plaintiff may be joined as defendants and re-
have an adequate remedy if the action is dis- quired to interplead when their claims are
missed for nonjoinder. such that the plaintiff is or may be exposed
APPENDIX B 653
to double or multiple liability. It is not (3) the court finds that the questions of
ground for objection to the joinder that the law or fact common to the members of the
claims of the several claimants or the titles class predominate over any questions affect-
on which their claims depend do not have a ing only individual members, and that a class
common origin or are not identical but are action is superior to other available methods
adverse to and independent of one another, for the fair and efficient adjudication of the
or that the plaintiff avers that the plaintiff is controversy. The matters pertinent to the
not liable in whole or in part to any or all of findings include: (A) the interest of members
the claimants. A defendant exposed to simi- of the class in individually controlling the
lar liability may obtain such interpleader by prosecution or defense of separate actions;
way of cross-claim or counterclaim. The pro- (B) the extent and nature of any litigation con-
visions of this Rule supplement and do not in cerning the controversy already commenced
any way limit the rejoinder of parties per- by or against members of the class; (C) the de-
mitted in Rule 20. sirability or undesirability of concentrating
(2) The remedy herein provided is in ad- the litigation of the claims in the particular fo-
dition to and in no way supersedes or limits rum; (D) the difficulties likely to be encoun-
the remedy provided by Title 28, U.S.C. tered in the management of a class action.
§§1335, 1397 and 2361. Actions under those (c) Determination by Order Whether Class
provisions shall be conducted in accordance Action to Be Maintained; Notice; Judgment;
with these Rules. Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the com-
Rule 23. Class Actions. mencement of an action brought as a class ac-
(a) Prerequisites to a Class Action. One or tion, the court shall determine by order
more members of a class may sue or be sued whether it is to be so maintained. An order
as representative parties on behalf of all only under this subdivision may be conditional,
if (1) the class is so numerous that joinder of and may be altered or amended before the de-
all members is impracticable, (2) there are cision on the merits.
questions of law or fact common to the class, (2) In any class action maintained under
(3) the claims or defenses of the representa- subdivision (b)(3), the court shall direct to
tive parties are typical of the claims or de- the members of the class the best notice prac-
fenses of the class, and (4) the representative ticable under the circumstances, including in-
parties will fairly and adequately protect the dividual notice to all members who can be
interest of the class. identified through reasonable effort. The no-
(b) Class Actions Maintainable. An action tice shall advise each member that (A) the
may be maintained as a class action if the pre- court will exclude the member from the class
requisites of subdivision (a) are satisfied, and if the member so requests by a specified date;
in addition: (B) the judgment, whether favorable or not,
(1) the prosecution of separate actions will include all members who do not request
by or against individual members of the class exclusion; and (C) any member who does not
would create a risk of: request exclusion may, if the member desires,
(A) inconsistent or varying adjudications enter an appearance through his counsel.
with respect to individual members of the (3) The judgment in an action maintained
class which would establish incompatible as a class action under subdivision (b)(1) or
standards of conduct for the party opposing (b) (2), whether or not favorable to the class,
the class, or shall include and describe those whom the
(B) adjudications with respect to individ- court finds to be members of the class. The
ual members of the class which would as a judgment in an action maintained as a class ac-
practical matter be dispositive of the inter- tion under subdivision (b)(3), whether or not
ests of the other members not parties to the favorable to the class, shall include and spec-
adjudications or substantially impair or im- ify or describe those to whom the notice pro-
pede their ability to protect their interest; or vided in subdivision (c)(2) was directed, and
(2) the party opposing the class has who have not requested exclusion, and whom
acted or refused to act on grounds generally the court finds to be members of the class.
applicable to the class, thereby making ap- (4) When appropriate (A) an action may
propriate final injunctive relief or correspon- be brought or maintained as a class action
ding declaratory relief with respect to the with respect to particular issues, or (B) a
class as a whole; or class may be divided into subclasses and
654 APPENDIX B
each subclass treated as a class, and the pro- authority and, if necessary, from the share-
visions of this Rule shall then be construed holders or members, and the reasons for the
and applied accordingly. plaintiff’s failure to obtain the action or for
(d) Orders in Conduct of Actions. In the con- not making the effort. The derivative action
duct of actions to which this Rule applies, the may not be maintained if it appears that the
court may make appropriate orders: (1) de- plaintiff does not fairly and adequately repre-
termining the course of proceedings or present the interests of the shareholders or
scribing measures to prevent undue repeti- members similarly situated in enforcing the
tion or complication in the presentation of right of the corporation or association. The
evidence or argument; (2) requiring, for the action shall not be dismissed or compro-
protection of the members of the class or oth- mised without the approval of the court, and
erwise for the fair conduct of the action, that notice of the proposed dismissal or compro-
notice be given in such manner as the court mise shall be given to shareholders or mem-
may direct to some or all of the members of bers in such manner as the court directs.
any step in the action, or of the proposed ex-
tent of the judgment, or of the opportunity of Rule 23.2. Actions Relating to
members to signify whether they consider the Unincorporated Associations.
representation fair and adequate, to intervene An action brought by or against the members
and present claims or defenses, or otherwise of an unincorporated association as a class
to come into the action; (3) imposing condi- by naming certain members as representative
tions on the representative parties or on in- parties may be maintained only if it appears
tervenors; (4) requiring that the pleadings be that the representative parties will fairly and
amended to eliminate therefrom allegations adequately protect the interests of the asso-
as to representation of absent persons, and ciation and its members. In the conduct of the
that the action proceed accordingly; (5) deal- action, the court may make appropriate or-
ing with similar procedural matters. The orders corresponding with those described in
ders may be combined with an order under Rule 23(d), and the procedure for dismissal or
Rule 16, and may be altered or amended as compromise of the action shall correspond
may be desirable from time to time. with that provided in Rule 23(e).
(e) Dismissal or Compromise. A class action
shall not be dismissed or compromised with- Rule 24. Intervention.
out the approval of the court, and notice of (a) Intervention of Right. Upon timely appli-
the proposed dismissal or compromise shall cation anyone shall be permitted to intervene
be given to all members of the class in such in an action: (1) when a statute of the United
manner as the court directs. States confers an unconditional right to inter-
vene; or (2) when the applicant claims an in-
Rule 23.1. Derivative Actions terest relating to the property or transaction
by Shareholders. which is the subject of the action and the ap-
In a derivative action brought by one or more plicant is so situated that the disposition of
shareholders or members to enforce a right the action may as a practical matter impair or
of a corporation or of an unincorporated as- impede the applicant’s ability to protect that
sociation, the corporation or association hav- interest, unless the applicant’s interest is ad-
ing failed to enforce a right which may prop- equately represented by existing parties.
erly be asserted by it, the complaint shall be (b) Permissive Intervention. Upon timely
verified and shall allege (1) that the plaintiff application anyone may be permitted to in-
was a shareholder or member at the time of tervene in an action: (1) when a statute of the
the transaction of which the plaintiff com- United States confers a conditional right to
plains or that the plaintiff’s share or member- intervene; or (2) when an applicant’s claim or
ship thereafter devolved on the plaintiff by defense and the main action have a question
operation of law, and (2) that the action is not of law or fact in common. When a party to an
a collusive one to confer jurisdiction on a action relies for ground of claim or defense
court of the United States which it would not upon any statute or executive order adminis-
otherwise have. The complaint shall also altered by a federal or state governmental offi-
lege with particularity the efforts, if any, made cer and agency or upon any regulation, order,
by the plaintiff to obtain the action the plain- requirement or agreement issued or made
tiff desires from the directors or comparable pursuant to the statute or executive order,
APPENDIX B 655
the officer or agency upon timely application sought to be enforced survives only to the
may be permitted to intervene in the action. surviving plaintiffs or only against the surviv-
In exercising its discretion, the court shall ing defendants, the action does not abate.
consider whether the intervention will un- The death shall be suggested upon the record
duly delay or prejudice the adjudication of and the action shall proceed in favor of or
the rights of the original parties. against the surviving parties.
(c) Procedure. A person desiring to inter- (b) Incompetence. If a party becomes incom-
vene shall serve a motion to intervene upon petent, the court upon motion served as pro-
the parties as provided in Rule 5. The motion vided in subdivision (a) of this rule may allow
shall state the grounds therefor and shall be the action to be continued by or against the
accompanied by a pleading setting forth the party’s representative.
claim or defense for which intervention is (c) Transfer of Interest. In case of any trans-
sought. The same procedure shall be fol- fer of interest, the action may be continued by
lowed when a statute of the United States or against the original party, unless the court
gives a right to intervene. When the constitu- upon motion directs the person to whom the
tionality of an act of Congress affecting the interest is transferred to be substituted in the
public interest is drawn in question in any ac- action or joined with the original party. Ser-
tion to which the United States or an officer, vice of the motion shall be made as provided
agency or employee thereof is not a party, in subdivision (a) of this Rule.
the court shall notify the Attorney General of (d) Public Officers; Death or Separation
the United States as provided in Title 28, from Office.
U.S.C. §2403. When the constitutionality of (1) When a public officer is a party to an
any statute of a State affecting the public in- action in an official capacity and during its pen-
terest is drawn in question in any action in dency dies, resigns or otherwise ceases to hold
which that State or any agency, officer or em- office, the action does not abate and the offi-
ployee thereof is not a party, the court shall cer’s successor is automatically substituted as
notify the attorney general of the State as a party. Proceedings following the substitution
provided in Title 28, U.S.C. §2403. A party shall be in the name of the substituted party,
challenging the constitutionality of legisla- but any misnomer not affecting the substantial
tion should call the attention of the court to rights of the parties shall be disregarded. An or-
its consequential duty, but failure to do so is der of substitution may be entered at any time,
not a waiver of any constitutional right oth- but the omission to enter such an order shall
erwise timely asserted. not affect the substitution.
(2) A public officer who sues or is sued in
Rule 25. Substitution of Parties. an official capacity may be described as a
(a) Death. party by the officer’s official title rather than
(1) If a party dies and the claim is not by name; but the court may require the offi-
thereby extinguished, the court may order cer’s name to be added.
substitution of the proper parties. The mo-
tion for substitution may be made by any V. Depositions and Discovery.
party or by the successors or representatives
of the deceased party and, together with the Rule 26. General Provisions Governing
notice of hearing, shall be served on the par- Discovery; Duty of Disclosure.
ties as provided in Rule 5 and upon persons (a) Required Disclosures; Methods to Dis-
not parties in the manner provided in Rule 4 cover Additional Matter.
for the service of a summons, and may be (1) Initial Disclosures. Except to the ex-
served in any judicial district. Unless the mo- tent otherwise stipulated or directed by or-
tion for substitution is made not later than 90 der or local rule, a party shall, without await-
days after the death is suggested upon the ing a discovery request, provide to other
record by service of a statement of the fact of parties:
the death as provided herein for the service (A) the name and, if known, the address
of the motion, the action shall be dismissed and telephone number of each individual
as to the deceased party. likely to have discoverable information rele-
(2) In the event of the death of one or vant to disputed facts alleged with particular-
more of the plaintiffs or of one or more of the ity in the pleadings, identifying the subjects of
defendants in an action in which the right the information;
656 APPENDIX B
(B) a copy of, or a description by cate- be paid for the study and testimony; and a
gory and location of, all documents, data listing of any other cases in which the witness
compilations, and tangible things in the pos- has testified as an expert at trial or by depo-
session, custody or control of the party that sition within the preceding four years.
are relevant to disputed facts alleged with (C) These disclosures shall be made at
particularity in the pleadings; the times and in the sequence directed by the
(C) a computation of any category of court. In the absence of other directions from
damages claimed by the disclosing party, the court or stipulation by the parties, the
making available for inspection and copying disclosures shall be made at least 90 days be-
as under Rule 34 the documents or other evi- fore the trial date or the date the case is to be
dentiary material, not privileged or protected ready for trial, or, if the evidence is intended
from disclosure, on which such computation solely to contradict or rebut evidence on the
is based, including materials bearing on the same subject matter identified by another
nature and extent of injuries suffered; and party under paragraph (2)(B), within 30 days
(D) for inspection and copying as under after the disclosure made by the other party.
Rule 34 any insurance agreement under The parties shall supplement these disclo-
which any person carrying on an insurance sures when required under subdivision (e)(1).
business may be liable to satisfy part or all of (3) Pretrial Disclosures. In addition to the
a judgment which may be entered in the ac- disclosures required in the preceding para-
tion or to indemnify or reimburse for pay- graphs, a party shall provide to other parties
ments made to satisfy the judgment. the following information regarding the evi-
Unless otherwise stipulated or directed dence that it may present at trial other than
by the court, these disclosures shall be made solely for impeachment purposes:
at or within 10 days after the meeting of the (A) the name and, if not previously pro-
parties under subdivision (f). A party shall vided, the address and telephone number of
make its initial disclosures based on the in- each witness, separately identifying those
formation then reasonably available to it and whom the party expects to present and those
is not excused from making its disclosures be- whom the party may call if the need arises;
cause it has not fully completed its investiga- (B) the designation of those witnesses
tion of the case or because it challenges the whose testimony is expected to be presented
sufficiency of another party’s disclosures or by means of a deposition and, if not taken
because another party has not made its dis- stenographically, a transcript of the pertinent
closures. portions of the deposition testimony; and
(2) Disclosure of Expert Testimony. (C) an appropriate identification of each
(A) In addition to the disclosures re- document or other exhibit, including sum-
quired by paragraph (1), a party shall dis- maries of other evidence, separately identify-
close to other parties the identity of any per- ing those which the party expects to offer and
son who may be used at trial to present those which the party may offer if the need
evidence under Rules 702, 703 or 705 of the arises.
Federal Rules of Evidence. Unless otherwise directed by the court,
(B) Except as otherwise stipulated or di- these disclosures shall be made at least 30
rected by the court, this disclosure shall, with days before trial. Within 14 days thereafter,
respect to a witness who is retained or spe- unless a different time is specified by the
cially employed to provide expert testimony court, a party may serve and file a list dis-
in the case or whose duties as an employee of closing (i) any objections to the use under
the party regularly involve giving expert tes- Rule 32(a) of a deposition designated by an-
timony, be accompanied by a written report other party under subparagraph (B) and (ii)
prepared and signed by the witness. The re- any objection, together with the grounds
port shall contain a complete statement of all therefor, that may be made to the admissibil-
opinions to be expressed and the basis and ity of materials identified under subpara-
reasons therefor; the data or other informa- graph (C). Objections not so disclosed, other
tion considered by the witness in forming the than objections under Rules 402 and 403 of
opinions; any exhibits to be used as a sum- the Federal Rules of Evidence, shall be
mary of or support for the opinions; the qual- deemed waived unless excused by the court
ifications of the witness, including a list of all for good cause shown.
publications authored by the witness within (4) Form of Disclosures; Filing. Unless oth-
the preceding ten years; the compensation to erwise directed by order or local rule, all dis-
APPENDIX B 657
closures under paragraphs (1) through (3) ter reasonable notice or pursuant to a motion
shall be made in writing, signed, served and under subdivision (c).
promptly filed with the court. (3) Trial Preparation: Materials. Subject to
(5) Methods to Discover Additional Matter. the provisions of subdivision (b)(4) of this
Parties may obtain discovery by one or more Rule, a party may obtain discovery of docu-
of the following methods: depositions upon ments and tangible things otherwise discov-
oral examination or written questions; writ- erable under subdivision (b)(1) of this Rule
ten interrogatories; production of documents and prepared in anticipation of litigation or
or things or permission to enter upon land or for trial by or for another party or by or for
other property under Rule 34 or 45(a)(1)(C), that other party’s representative (including
for inspection and other purposes; physical the other party’s attorney, consultant, surety,
and mental examinations; and requests for indemnitor, insurer or agent) only upon
admission. showing that the party seeking discovery has
(b) Discovery Scope and Limits. Unless oth- substantial need of the materials in the prepa-
erwise limited by order of the court in accor- ration of the party’s case and that the party is
dance with these Rules, the scope of discov- unable without undue hardship to obtain the
ery is as follows: substantial equivalent of the materials by
(1) In General. Parties may obtain dis- other means. In ordering discovery of such
covery regarding any matter, not privileged, materials when the required showing has
which is relevant to the subject matter in- been made, the court shall protect against
volved in the pending action, whether it re- disclosure of the mental impressions, conclu-
lates to the claim or defense of the party sions, opinions or legal theories of an attor-
seeking discovery or to the claim or defense ney or other representative of a party con-
of any other party, including the existence, cerning the litigation.
description, nature, custody, condition and A party may obtain without the required
location of any books, documents or other showing a statement concerning the action or
tangible things and the identity and loca- its subject matter previously made by that
tion of persons having knowledge of any dis- party. Upon request, a person not a party may
coverable matter. The information sought obtain without the required showing a state-
need not be admissible at the trial if the in- ment concerning the action or its subject
formation sought appears reasonably calcu- matter previously made by that person. If the
lated to lead to the discovery of admissible request is refused, the person may move for a
evidence. court order. The provisions of Rule 37(a)(4)
(2) Limitations. By order or by local rule, apply to the award of expenses incurred in re-
the court may alter the limits in these Rules lation to the motion. For purposes of this
on the number of depositions and interroga- paragraph, a statement previously made is
tories and may also limit the length of depo- (A) a written statement signed or otherwise
sitions under Rule 30 and the number of re- adopted or approved by the person making it,
quests under Rule 36. The frequency or or (B) a stenographic, mechanical, electrical
extent of use of the discovery methods other- or other recording, or a transcription thereof,
wise permitted under these Rules and by any which is a substantially verbatim recital of an
local rule shall be limited by the court if it de- oral statement by the person making it and
termines that: (i) the discovery sought is un- contemporaneously recorded.
reasonably cumulative or duplicative, or is (4) Trial Preparation: Experts.
obtainable from some other source that is (A) A party may depose any person who
more convenient, less burdensome or less ex- has been identified as an expert whose opin-
pensive; (ii) the party seeking discovery has ions may be presented at trial. If a report from
had ample opportunity by discovery in the the expert is required under subdivision
action to obtain the information sought; or (a)(2)(B), the deposition shall not be con-
(iii) the burden or expense of the proposed ducted until after the report is provided.
discovery outweighs its likely benefit, taking (B) A party may, through interrogatories
into account the needs of the case, the or by deposition, discover facts known or
amount in controversy, the parties’ re- opinions held by an expert who has been re-
sources, the importance of the issues at stake tained or specially employed by another
in the litigation and the importance of the party in anticipation of litigation or prepara-
proposed discovery in resolving the issues. tion for trial and who is not expected to be
The court may act upon its own initiative af- called as a witness at trial, only as provided in
658 APPENDIX B
Rule 35(b) or upon a showing of exceptional (5) that discovery be conducted with no
circumstances under which it is impractica- one present except persons designated by
ble for the party seeking discovery to obtain the court;
facts or opinions on the same subject by (6) that a deposition, after being sealed,
other means. be opened only by order of the court;
(C) Unless manifest injustice would result, (7) that a trade secret or other confiden-
(i) the court shall require that the party seeking tial research, development or commercial in-
discovery pay the expert a reasonable fee for formation not be revealed or be revealed only
time spent in responding to discovery under in a designated way; and
this subdivision; and (ii) with respect to dis- (8) that the parties simultaneously file
covery obtained under subdivision (b)(4)(B) specified documents or information enclosed
of this Rule the court may require the party in sealed envelopes to be opened as directed
seeking discovery to pay the other party a fair by the court.
portion of the fees and expenses reasonably in- If the motion for a protective order is de-
curred by the latter party in obtaining facts and nied in whole or in part, the court may, on
opinions from the expert. such terms and conditions as are just, order
(5) Claims of Privilege or Protection of Trial that any party or other person provide or per-
Preparation Materials. When a party withholds mit discovery. The provisions of Rule 37(a)(4)
information otherwise discoverable under apply to the award of expenses incurred in re-
these Rules by claiming that it is privileged or lation to the motion.
subject to protection as trial preparation ma- (d) Timing and Sequence of Discovery. Ex-
terial, the party shall make the claim except when authorized under these Rules or
pressly and shall describe the nature of the by local rule, order or agreement of the par-
documents, communications or things not ties, a party may not seek discovery from
produced or disclosed in a manner that, with- any source before the parties have met and
out revealing information itself privileged or conferred as required by subdivision (f). Un-
protected, will enable other parties to assess less the court upon motion, for the conven-
the applicability of the privilege or protection. ience of parties and witnesses and in the in-
(c) Protective Orders. Upon motion by a terests of justice, orders otherwise, methods
party or by the person from whom discovery of discovery may be used in any sequence
is sought, accompanied by a certification that and the fact that a party is conducting dis-
the movant has in good faith conferred or at- covery, whether by deposition or otherwise,
tempted to confer with other affected parties shall not operate to delay any other party’s
in an effort to resolve the dispute without discovery.
court action, and for good cause shown, the (e) Supplementation of Disclosures and Re-
court in which the action is pending or alter- sponses. A party who has made a disclosure
natively, on matters relating to a deposition, under subdivision (a) or responded to a re-
the court in the district where the deposition quest for discovery with a disclosure or re-
is to be taken may make any order which jus- sponse is under a duty to supplement or cor-
tice requires to protect a party or person rect the disclosure or response to include
from annoyance, embarrassment, oppression information thereafter acquired if ordered by
or undue burden or expense, including one or the court or in the following circumstances:
more of the following: (1) A party is under a duty to supplement
(1) that the disclosure or discovery not at appropriate intervals its disclosures under
be had; subdivision (a) if the party learns that in
(2) that the disclosure or discovery may some material respect the information dis-
be had only on specified terms and condi- closed is incomplete or incorrect and if the
tions, including a designation of the time or additional or corrective information has not
place; otherwise been made known to the other par-
(3) that the disclosure or discovery may ties during the discovery process or in writ-
be had only by a method of discovery other ing. With respect to testimony of an expert
than that selected by the party seeking from whom a report is required under subdi-
discovery; vision (a)(2)(B) the duty extends both to in-
(4) that certain matters not be inquired formation contained in the report and to in-
into, or that the scope of the disclosure or dis- formation provided through a deposition of
covery be limited to certain matters; the expert, and any additions or other
APPENDIX B 659
changes to this information shall be disclosed dress shall be stated. An unrepresented party
by the time the party’s disclosures under shall sign the disclosure and state the party’s
Rule 26(a)(3) are due. address. The signature of the attorney or
(2) A party is under a duty seasonably to party constitutes a certification that to the
amend a prior response to an interrogatory, best of the signer’s knowledge, information
request for production or request for admis- and belief, formed after a reasonable inquiry,
sion if the party learns that the response is in the disclosure is complete and correct as of
some material respect incomplete or incor- the time it is made.
rect and if the additional or corrective infor- (2) Every discovery request or response
mation has not otherwise been made known or objection made by a party represented by
to the other parties during the discovery an attorney shall be signed by at least one at-
process or in writing. torney of record in the attorney’s individual
(f ) Meeting of Parties; Planning for Discov- name, whose address shall be stated. An un-
ery. Except in actions exempted by local rule represented party shall sign the request, re-
or when otherwise ordered, the parties shall, sponse or objection and state the party’s ad-
as soon as practicable and in any event at least dress. The signature of the attorney or party
14 days before a scheduling conference is held constitutes a certification that to the best of
or a scheduling order is due under Rule 16(b), the signer’s knowledge, information and be-
meet to discuss the nature and basis of their lief, formed after a reasonable inquiry, the re-
claims and defenses and the possibilities for a quest, response or objection is:
prompt settlement or resolution of the case, to (A) consistent with these Rules and war-
make or arrange for the disclosures required ranted by existing law or a good-faith argu-
by subdivision (a)(1), and to develop a pro- ment for the extension, modification or rever-
posed discovery plan. The plan shall indicate sal of existing law;
the parties’ views and proposals concerning: (B) not interposed for any improper pur-
(1) what changes should be made in the pose, such as to harass or to cause unneces-
timing, form or requirement for disclosures un- sary delay or needless increase in the cost of
der subdivision (a) or local rule, including a litigation; and
statement as to when disclosures under sub- (C) not unreasonable or unduly burden-
division (a)(1) were made or will be made; some or expensive, given the needs of the
(2) the subjects on which discovery may case, the discovery already had in the case,
be needed, when discovery should be com- the amount in controversy and the impor-
pleted, and whether discovery should be con- tance of the issues at stake in the litigation.
ducted in phases or be limited to or focused If a request, response or objection is not
upon particular issues; signed, it shall be stricken unless it is signed
(3) what changes should be made in the promptly after the omission is called to the at-
limitations on discovery imposed under tention of the party making the request, re-
these Rules or by local rule, and what other sponse or objection and a party shall not be
limitations should be imposed; and obligated to take any action with respect to it
(4) any other orders that should be en- until it is signed.
tered by the court under subdivision (c) or (3) If without substantial justification a
under Rule 16(b) and (c). certification is made in violation of the Rule,
The attorneys of record and all unrepre- the court, upon motion or upon its own initia-
sented parties that have appeared in the case tive, shall impose upon the person who made
are jointly responsible for arranging and being the certification, the party on whose behalf the
present or represented at the meeting, for at- disclosure, request, response or objection is
tempting in good faith to agree on the pro- made, or both, an appropriate sanction, which
posed discovery plan, and for submitting to may include an order to pay the amount of the
the court within 10 days after the meeting a reasonable expenses incurred because of the
written report outlining the plan. violation, including a reasonable attorney’s fee.
( g ) Signing of Disclosures, Discovery Re-
quests, Responses and Objections. Rule 27. Depositions Before Action
(1) Every disclosure made pursuant to or Pending Appeal.
subdivision (a)(1) or subdivision (a)(3) shall (a) Before Action.
be signed by at least one attorney of record in (1) Petition. A person who desires to per-
the attorney’s individual name, whose ad- petuate testimony regarding any matter that
660 APPENDIX B
may be cognizable in any court of the United and the court may make orders of the char-
States may file a verified petition in the United acter provided for by Rules 34 and 35. For the
States district court in the district of the resi- purpose of applying these Rules to deposi-
dence of any expected adverse party. The pe- tions for perpetuating testimony, each refer-
tition shall be entitled in the name of the peti- ence therein to the court in which the action
tioner and shall show: 1, that the petitioner is pending, shall be deemed to refer to the
expects to be a party to an action cognizable court in which the petition for such deposi-
in a court of the United States but is presently tion was filed.
unable to bring it or cause it to be brought, 2, (4) Use of Deposition. If a deposition to
the subject matter of the expected action and perpetuate testimony is taken under these
the petitioner’s interest therein, 3, the facts Rules or if, although not so taken, it would be
which the petitioner desires to establish by admissible in evidence in the courts of the
the proposed testimony and the reasons for state in which it is taken, it may be used in any
desiring to perpetuate it, 4, the names or a de- action involving the same subject matter sub-
scription of the persons the petitioner ex- sequently brought in a United States district
pects will be adverse parties and their ad- court, in accordance with the provisions of
dresses so far as known, and 5, the names and Rule 32(a).
addresses of the persons to be examined and (b) Pending Appeal. If an appeal has been
the substance of the testimony which the pe- taken from a judgment of a district court or
titioner expects to elicit from each, and shall before the taking of an appeal if the time
ask for an order authorizing the petitioner to therefor has not expired, the district court in
take the depositions of the persons to be ex- which the judgment was rendered may allow
amined named in the petition, for the purpose the taking of the depositions of witnesses to
of perpetuating their testimony. perpetuate their testimony for use in the
(2) Notice and Service. The petitioner shall event of further proceedings in the district
thereafter serve a notice upon each person court. In such case the party who desires to
named in the petition as an expected adverse perpetuate the testimony may make a motion
party, together with a copy of the petition, stat- in the district court for leave to take the dep-
ing that the petitioner will apply to the court, ositions, upon the same notice and service
at a time and place named therein, for the or- thereof as if the action was pending in the dis-
der described in the petition. At least 20 days trict court. The motion shall show (1) the
before the date of hearing the notice shall be names and addresses of persons to be exam-
served either within or without the district or ined and the substance of the testimony
state in the manner provided in Rule 4(d) for which the party expects to elicit from each;
service of summons; but if such service can- (2) the reasons for perpetuating their testi-
not with due diligence be made upon any ex- mony. If the court finds that the perpetuation
pected adverse party named in the petition, of the testimony is proper to avoid a failure or
the court may make such order as is just for delay of justice, it may make an order allow-
service by publication or otherwise, and shall ing the depositions to be taken and may make
appoint, for persons not served in the manner orders of the character provided for by Rules
provided in Rule 4(d), an attorney who shall 34 and 35, and thereupon the depositions
represent them, and in case they are not oth- may be taken and used in the same manner
erwise represented, shall cross-examine the and under the same conditions as are pre-
deponent. If any expected adverse party is a scribed in these Rules for depositions taken
minor or incompetent the provisions of Rule in actions pending in the district court.
17(c) apply. (c) Perpetuation by Action. This Rule does
(3) Order and Examination. If the court is not limit the power of a court to entertain an
satisfied that the perpetuation of the testi- action to perpetuate testimony.
mony may prevent a failure or delay of jus-
tice, it shall make an order designating or de- Rule 28. Persons Before Whom
scribing the persons whose depositions may Depositions May Be Taken.
be taken and specifying the subject matter of (a) Within the United States. Within the United
the examination and whether the depositions States or within a territory or insular posses-
shall be taken upon oral examination or writ- sion subject to the jurisdiction of the United
ten interrogatories. The depositions may States, depositions shall be taken before an of-
then be taken in accordance with these Rules; ficer authorized to administer oaths by the
APPENDIX B 661
laws of the United States or of the place where son, at any time or place, upon any notice, and
the examination is held, or before a person ap- in any manner and when so taken may be used
pointed by the court in which the action is like other depositions, and (2) modify other
pending. A person so appointed has power to procedures governing or limitations placed
administer oaths and take testimony. The term upon discovery, except that stipulations ex-
officer as used in Rules 30, 31, and 32 includes tending the time provided in Rules 33, 34 and 36
a person appointed by the court or designated for responses to discovery may, if they would
by the parties under Rule 29. interfere with any time set for completion of
(b) In Foreign Countries. Depositions may be discovery, for hearing of a motion, or for trial,
taken in a foreign country (1) pursuant to any be made only with the approval of the court.
applicable treaty or convention, or (2) pur-
suant to a letter of request (whether or not Rule 30. Depositions Upon Oral
captioned a letter rogatory), or (3) on notice Examination.
before a person authorized to administer (a) When Depositions May Be Taken; When
oaths in the place where the examination is Leave Required.
held, either by the law thereof or by the law of (1) A party may take the testimony of any
the United States, or (4) before a person com- person, including a party, by deposition upon
missioned by the court and a person so com- oral examination without leave of court ex-
missioned shall have the power by virtue of cept as provided in paragraph (2). The atten-
the commission to administer any necessary dance of witnesses may be compelled by sub-
oath and take testimony. A commission or a re- poena as provided in Rule 45.
quest shall be issued on application and notice (2) A party must obtain leave of the
and on terms that are just and appropriate. It court, which shall be granted to the extent
is not requisite to the issuance of a commis- consistent with the principles stated in Rule
sion or a letter of request that the taking of the 26(b)(2), if the person to be examined is con-
deposition in any other manner is impractica- fined in prison or if, without the written stip-
ble or inconvenient; and both a commission ulation of the parties.
and a letter of request may be issued in proper (A) a proposed deposition would result in
cases. A notice or commission may designate more than ten depositions being taken under
the person before whom the deposition is to this Rule or Rule 31 by the plaintiffs, or by the
be taken either by name or descriptive title. A defendants, or by third-party defendants;
letter of request may be addressed “To the Ap- (B) the person to be examined already
propriate Authority in [here name the coun- has been deposed in the case; or
try:].” When a letter of request or any other de- (C) a party seeks to take a deposition be-
vice is used pursuant to any applicable treaty fore the time specified in Rule 26(d) unless
or convention, it shall be captioned in the form the notice contains a certification, with sup-
prescribed by that treaty or convention. Evi- porting facts, that the person to be examined
dence obtained in response to a letter of re- is expected to leave the United States and be
quest need not be excluded merely because it unavailable for examination in this country
is not a verbatim transcript, because the testi- unless deposed before that time.
mony was not taken under oath or because of (b) Notice of Examination: General Require-
any similar departure from the requirements ments; Recording; Production of Documents
for depositions taken within the United States and Things; Deposition of Organization; De-
under these Rules. position by Telephone.
(c) Disqualification for Interest. No deposi- (1) A party desiring to take the deposi-
tion shall be taken before a person who is a tion of any person upon oral examination
relative or employee or attorney or counsel of shall give reasonable notice in writing to
any of the parties, or is a relative or employee every other party to the action. The notice
of such attorney or counsel, or is financially shall state the time and place for taking the
interested in the action. deposition and the name and address of each
person to be examined, if known, and, if the
Rule 29. Stipulations Regarding name is not known, a general description suf-
Discovery Procedure. ficient to identify the person or the particular
Unless otherwise directed by the court, the class or group to which the person belongs. If
parties may by written stipulation (1) provide a subpoena duces tecum is to be served on the
that depositions may be taken before any per- person to be examined, the designation of the
662 APPENDIX B
materials to be produced as set forth in the designate one or more officers, directors or
subpoena shall be attached to, or included in, managing agents, or other persons who con-
the notice. sent to testify on its behalf, and may set forth,
(2) The party taking the deposition shall for each person designated, the matters on
state in the notice the method by which the which the person will testify. A subpoena
testimony shall be recorded. Unless the court shall advise a non-party organization of its
orders otherwise, it may be recorded by duty to make such a designation. The persons
sound, sound-and-visual, or stenographic so designated shall testify as to matters
means, and the party taking the deposition known or reasonably available to the organi-
shall bear the cost of the recording. Any party zation. This subdivision (b)(6) does not pre-
may arrange for a transcription to be made clude taking a deposition by any other proce-
from the recording of a deposition taken by dure authorized in these Rules.
non-stenographic means. (7) The parties may stipulate in writing
(3) With prior notice to the deponent and or the court may upon motion order that a
other parties, any party may designate an- deposition be taken by telephone or other re-
other method to record the deponent’s testi- mote electronic means. For the purposes of
mony in addition to the method specified by this Rule and Rules 28(a), 37(a)(1) and
the person taking the deposition. The addi- 37(b)(1), a deposition taken by such means is
tional record or transcript shall be made at taken in the district and at the place where
that party’s expense unless the court other- the deponent is to answer questions.
wise orders. (c) Examination and Cross-Examination;
(4) Unless otherwise agreed by the par- Record of Examination; Oath; Objections.
ties, a deposition shall be conducted before Examination and cross-examination of wit-
an officer appointed or designated under Rule nesses may proceed as permitted at the trial
28 and shall begin with a statement on the under the provisions of the Federal Rules of
record by the officer that includes (A) the offi- Evidence except Rules 103 and 615. The offi-
cer’s name and business address; (B) the date, cer before whom the deposition is to be taken
time, and place of the deposition; (C) the shall put the witness on oath or affirmation
name of the deponent; (D) the administration and shall personally, or by someone acting
of the oath or affirmation to the deponent; and under the officer’s direction and in the offi-
(E) an identification of all persons present. If cer’s presence, record the testimony of the
the deposition is recorded other than steno- witness. The testimony shall be taken steno-
graphically, the officer shall repeat items (A) graphically or recorded by any other method
through (C) at the beginning of each unit of authorized by subdivision (b)(2) of this Rule.
recorded tape or other recording medium. All objections made at time of the examina-
The appearance or demeanor of deponents or tion to the qualifications of the officer taking
attorneys shall not be distorted through cam- the deposition, to the manner of taking it, to
era or sound-recording techniques. At the end the evidence presented, to the conduct of any
of the deposition, the officer shall state on the party, or to any other aspect of the proceed-
record that the deposition is complete and ings, shall be noted by the officer upon the
shall set forth any stipulations made by coun- record of the deposition but the examination
sel concerning the custody of the transcript shall proceed, with the testimony being taken
or recording and the exhibits, or concerning subject to the objections. In lieu of participat-
other pertinent matters. ing in the oral examination, parties may serve
(5) The notice to a party deponent may written questions in a sealed envelope on the
be accompanied by a request made in com- party taking the deposition and the party tak-
pliance with Rule 34 for the production of ing the deposition shall transmit them to the
documents and tangible things at the taking officer, who shall propound them to the wit-
of the deposition. The procedure of Rule 34 ness and record the answers verbatim.
shall apply to the request. (d) Schedule and Duration; Motion to Termi-
(6) A party may in the party’s notice and nate or Limit Examination.
in a subpoena name as the deponent a public (1) Any objection to evidence during a
or private corporation or a partnership or as- deposition shall be stated concisely and in a
sociation or governmental agency and de- non-argumentative and non-suggestive man-
scribe with reasonable particularity the mat- ner. A party may instruct a deponent not to
ters on which examination is requested. In answer only when necessary to preserve a
that event, the organization so named shall privilege, to enforce a limitation on evidence
APPENDIX B 663
directed by the court, or to present a motion of the deposition. Unless otherwise ordered
under paragraph (3). by the court, the officer shall securely seal
(2) By order or local rule, the court may the deposition in an envelope or package in-
limit the time permitted for the conduct of a dorsed with the title of the action and
deposition, but shall allow additional time marked “Deposition of [here insert name of
consistent with Rule 26(b)(2) if needed for a witness]” and shall promptly file it with the
fair examination of the deponent or if the de- court in which the action is pending or send
ponent or another party impedes or delays it to the attorney who arranged for the tran-
the examination. If the court finds such an im- script or recording, who shall store it under
pediment, delay or other conduct that has conditions that will protect it against loss,
frustrated the fair examination of the depon- destruction, tampering or deterioration. Doc-
ent, it may impose upon the persons respon- uments and things produced for inspection
sible an appropriate sanction, including the during the examination of the witness, shall,
reasonable costs and attorney’s fees incurred upon the request of a party, be marked for
by any parties as a result thereof. identification and annexed to the deposition
(3) At any time during a deposition, on and may be inspected and copied by any
motion of a party or of the deponent and upon party, except that if the person producing the
a showing that the examination is being con- materials desires to retain them the person
ducted in bad faith or in such manner as un- may (A) offer copies to be marked for identi-
reasonably to annoy, embarrass or oppress fication and annexed to the deposition and to
the deponent or party, the court in which the serve thereafter as originals if the person af-
action is pending or the court in the district fords to all parties fair opportunity to verify
where the deposition is being taken may order the copies by comparison with the originals,
the officer conducting the examination to or (B) offer the originals to be marked for
cease forthwith from taking the deposition, or identification, after giving to each party an
may limit the scope and manner of the taking opportunity to inspect and copy them, in
of the deposition as provided in Rule 26(c). If which event the materials may then be used
the order made terminates the examination, it in the same manner as if annexed to the dep-
shall be resumed thereafter only upon the or- osition. Any party may move for an order
der of the court in which the action is pending. that the original be annexed to and returned
Upon demand of the objecting party or de- with the deposition to the court, pending fi-
ponent, the taking of the deposition shall be nal disposition of the case.
suspended for the time necessary to make a (2) Unless otherwise ordered by the
motion for an order. The provisions of Rule court or agreed by the parties, the officer shall
37(a)(4) apply to the award of expenses in- retain stenographic notes of any deposition
curred in relation to the motion. taken stenographically or a copy of the
(e) Review by Witness; Changes; Signing. If recording of any deposition taken by another
requested by the deponent or a party before method. Upon payment of reasonable charges
completion of the deposition, the deponent therefor, the officer shall furnish a copy of the
shall have 30 days after being notified by the transcript or other recording of the deposi-
officer that the transcript or recording is tion to any party or to the deponent.
available in which to review the transcript or (3) The party taking the deposition shall
recording and, if there are changes in form or give prompt notice of its filing to all other
substance, to sign a statement reciting such parties.
changes and the reasons given by the depon- ( g) Failure to Attend or to Serve Subpoena;
ent for making them. The officer shall indicate Expenses.
in the certificate prescribed by subdivision (1) If the party giving the notice of the
(f)(1) whether any review was requested and, taking of a deposition fails to attend and pro-
if so, shall append any changes made by the ceed therewith and another party attends in
deponent during the period allowed. person or by attorney pursuant to the notice,
(f ) Certification and Filing by Officer; Ex- the court may order the party giving the no-
hibits; Copies; Notice of Filing. tice to pay to such other party the reasonable
(1) The officer shall certify that the wit- expenses incurred by that party and that
ness was duly sworn by the officer and that party’s attorney in attending, including rea-
the deposition is a true record of the testi- sonable attorney’s fees.
mony given by the witness. This certificate (2) If the party giving the notice of the
shall be in writing and accompany the record taking of a deposition of a witness fails to
664 APPENDIX B
serve a subpoena upon the witness and the party may serve recross questions upon all
witness because of such failure does not at- other parties. The court may for cause shown
tend, and if another party attends in person enlarge or shorten the time.
or by attorney because that party expects the (b) Officer to Take Responses and Prepare
deposition of that witness to be taken, the Record. A copy of the notice and copies of all
court may order the party giving the notice to questions served shall be delivered by the
pay to such other party the reasonable ex- party taking the deposition to the officer des-
penses incurred by that party and that ignated in the notice, who shall proceed
party’s attorney in attending, including rea- promptly, in the manner provided by Rule
sonable attorney’s fees. 30(c), (e) and (f), to take the testimony of the
witness in response to the questions and to
Rule 31. Depositions Upon Written prepare, certify and file or mail the deposi-
Questions. tion, attaching thereto the copy of the notice
(a) Serving Questions; Notice. and the questions received by the officer.
(1) Any party may take the testimony of (c) Notice of Filing. When the deposition is
any person, including a party, by deposition filed, the party taking it shall promptly give
upon written questions without leave of court notice thereof to all other parties.
except as provided in paragraph (2). The at-
tendance of witnesses may be compelled by Rule 32. Use of Depositions in Court
the use of subpoena as provided in Rule 45. Proceedings.
(2) A party must obtain leave of court, (a) Use of Depositions. At the trial or upon
which shall be granted to the extent consis- the hearing of a motion or an interlocutory
tent with the principles stated in Rule proceeding, any part or all of a deposition, so
26(b)(2), if the person to be examined is con- far as admissible under the rules of evidence
fined in prison or if, without the written stip- applied as though the witness were then pres-
ulation of the parties, ent and testifying, may be used against any
(A) a proposed deposition would result in party who was present or represented at the
more than ten depositions being taken under taking of the deposition or who had reason-
this Rule or Rule 30 by the plaintiffs, or by the able notice thereof, in accordance with any of
defendants, or by third-party defendants; the following provisions:
(B) the person to be examined has al- (1) Any deposition may be used by any
ready been deposed in the case; or party for the purpose of contracting or im-
(C) a party seeks to take a deposition be- peaching the testimony of deponent as a wit-
fore the time specified in Rule 26(d). ness or for any other purpose permitted by
(3) A party desiring to take a deposition the Federal Rules of Evidence.
upon written questions shall serve them (2) The deposition of a party or of anyone
upon every other party with a notice stating who at the time of taking the deposition was
(1) the name and address of the person who an officer, director or managing agent or a
is to answer them, if known, and if the name is person designated under Rule 30(b)(6) or
not known, a general description sufficient to 31(a) to testify on behalf of a public or private
identify the person or the particular class or corporation, partnership or association or
group to which the person belongs, and (2) governmental agency which is a party may be
the name or descriptive title and address of used by an adverse party for any purpose.
the officer before whom the deposition is to (3) The deposition of a witness, whether
be taken. A deposition upon written ques- or not a party, may be used by any party for
tions may be taken of a public or private cor- any purpose if the court finds:
poration or a partnership or association or (A) that the witness is dead; or
governmental agency in accordance with the (B) that the witness is at a greater dis-
provisions of Rule 30(b)(6). tance than 100 miles from the place of trial or
(4) Within 14 days after the notice and hearing, or is out of the United States, unless
written questions are served, a party may it appears that the absence of the witness was
serve cross questions upon all other parties. procured by the party offering the deposi-
Within 10 days after being served with cross tion; or
questions, a party may serve redirect ques- (C) that the witness is unable to attend or
tions upon all other parties. Within 10 days af- testify because of age, illness, infirmity or im-
ter being served with redirect questions, a prisonment; or
APPENDIX B 665
(D) that the party offering the deposition also provide the court with a transcript of the
has been unable to procure the attendance of portions so offered. On request of any party in
the witness by subpoena; or a case tried before a jury, deposition testimony
(E) upon application and notice, that offered other than for impeachment purposes
such exceptional circumstances exist as to shall be presented in non-stenographic form, if
make it desirable, in the interest of justice and available, unless the court for good cause or-
with due regard to the importance of present- ders otherwise.
ing the testimony of witnesses orally in open (d) Effect of Errors and Irregularities in
court, to allow the deposition to be used. Depositions.
A deposition taken without leave of court (1) As to Notice. All errors and irregulari-
pursuant to a notice under Rule 30(a)(2)(C) ties in the notice for taking a deposition are
shall not be used against a party who demon- waived unless written objection is promptly
strates that, when served with the notice, it served upon the party giving the notice.
was unable through the exercise of diligence (2) As to Disqualification of Officer. Objec-
to obtain counsel to represent it at the taking tion to taking a deposition because of dis-
of the deposition; nor shall a deposition be qualification of the officer before whom it is
used against a party who, having received to be taken is waived unless made before the
less than 11 days notice of a deposition, has taking of the deposition begins or as soon
promptly upon receiving such notice filed a thereafter as the disqualification becomes
motion for a protective order under Rule known or could be discovered with reason-
26(c)(2) requesting that the deposition not be able diligence.
held or be held at a different time or place and (3) As to Taking of Deposition.
such motion is pending at the time the depo- (A) Objections to the competency of a
sition is held. witness or to the competency, relevancy or
(4) If only part of a deposition is offered materiality of testimony are not waived by
in evidence by a party, an adverse party may failure to make them before or during the tak-
require the offeror to introduce any other ing of the deposition, unless the ground of the
part which ought in fairness to be considered objection is one which might have been obvi-
with the part introduced, and any party may ated or removed if presented at that time.
introduce any other parts. (B) Errors and irregularities occurring at
Substitution of parties pursuant to Rule 25 the oral examination in the manner of taking
does not affect the right to use depositions the deposition, in the form of the questions or
previously taken; and when an action has answers, in the oath or affirmation, or in the
been brought in any court of the United States conduct of parties, and errors of any kind
or of any State and another action involving which might be obviated, removed or cured if
the same subject matter is afterward brought promptly presented, are waived unless sea-
between the same parties or their represen- sonable objection thereto is made to the tak-
tatives or successor in interest, all deposi- ing of the deposition.
tions lawfully taken and duly filed in the for- (C) Objections to the form of written
mer action may be used in the latter as if questions submitted under Rule 31 are
originally taken therefor. A deposition previ- waived unless served in writing upon the
ously taken may also be used as permitted by party propounded them within the time al-
the Federal Rules of Evidence. lowed for serving the succeeding cross or
(b) Objections to Admissibility. Subject to other questions and within 5 days after serv-
the provisions of Rule 28(b) and subdivision ice of the last questions authorized.
(d)(3) of this Rule, objection may be made at (4) As to Completion and Return of Deposi-
the trial or hearing to receiving in evidence tion. Errors and irregularities in the manner in
any deposition or part thereof for any reason which the testimony is transcribed or the
which would require the exclusion of the evi- deposition is prepared, signed, certified,
dence if the witness were then present and sealed, endorsed, transmitted, filed or other-
testifying. wise dealt with by the officer under Rules 30
(c) Form of Presentation. Except as otherwise and 31 are waived unless a motion to sup-
directed by the court, a party offering deposi- press the deposition or some part thereof is
tion testimony pursuant to this Rule may offer made with reasonable promptness after such
it in stenographic or non-stenographic form, defect is, or with due diligence might have
but, if in non-stenographic form, the party shall been, ascertained.
666 APPENDIX B
Rule 33. Interrogatories to Parties. has been completed or until a pretrial confer-
(a) Availability. Without leave of court or ence or other later time.
written stipulation, any party may serve (d) Option to Produce Business Records.
upon any other party written interrogatories, Where the answer to an interrogatory may be
not to exceed 25 in number including all dis- derived or ascertained from the business
crete subparts, to be answered by the party records of the party upon whom the inter-
served or, if the party served is a public or rogatory has been served or from an exami-
private corporation or a partnership or asso- nation, audit or inspection of such business
ciation or governmental agency, by any offi- records, including a compilation, abstract or
cer or agent, who shall furnish such informa- summary thereof, and the burden of deriving
tion as is available to the party. Leave to or ascertaining the answer is substantially
serve additional interrogatories shall be the same for the party serving the interroga-
granted to the extent consistent with the tory as for the party served, it is a sufficient
principles of Rule 26(b)(2). Without leave of answer to such interrogatory to specify the
court or written stipulation, interrogatories records from which the answer may be de-
may not be served before the time specified rived or ascertained and to afford to the party
in Rule 26(d). serving the interrogatory reasonable oppor-
(b) Answers and Objections. tunity to examine, audit or inspect such
(1) Each interrogatory shall be answered records and to make copies, compilations, ab-
separately and fully in writing under oath, un- stracts or summaries. A specification shall be
less it is objected to, in which event the ob- in sufficient detail to permit the interrogating
jecting party shall state the reasons for ob- party to locate and to identify, as readily as
jection and shall answer to the extent the can the party served, the records from which
interrogatory is not objectionable. the answer may be ascertained.
(2) The answers are to be signed by the
person making them, and the objections Rule 34. Production of Documents and
signed by the attorney making them. Things and Entry Upon Land for
(3) The party upon whom the interroga- Inspection and Other Purposes.
tories have been served shall serve a copy of (a) Scope. Any party may serve on any other
the answers, and objections if any, within 30 party a request (1) to produce and permit the
days after the service of the interrogatories. A party making the request, or someone acting
shorter or longer time may be directed by the on the requestor’s behalf, to inspect and
court or, in the absence of such an order, copy, any designated documents (including
agreed to in writing by the parties subject to writings, drawings, graphs, charts, photo-
Rule 29. graphs, phono-records and other data compi-
(4) All grounds for an objection to an in- lations from which information can be ob-
terrogatory shall be stated with specificity. tained, translated, if necessary, by the
Any ground not stated in a timely objection is respondent through detection devices into
waived unless the party’s failure to object is reasonably usable form), or to inspect and
excused by the court for good cause shown. copy, test or sample any tangible things
(5) The party submitting the interrogato- which constitute or contain matters within
ries may move for an order under Rule 37(a) the scope of Rule 26(b) and which are in the
with respect to any objection to or other fail- possession, custody or control of the party
ure to answer an interrogatory. upon whom the request is served; or (2) to
(c) Scope; Use at Trial. Interrogatories may permit entry upon designated land or other
relate to any matters which can be inquired property in the possession or control of the
into under Rule 26(b), and the answers may party upon whom the request is served for
be used to the extent permitted by the rules the purpose of inspection and measuring,
of evidence. surveying, photographing, testing or sam-
An interrogatory otherwise proper is not pling the property or any designated object
necessarily objectionable merely because an or operation thereon, within the scope of
answer to the interrogatory involves an opin- Rule 26(b).
ion or contention that relates to a fact or the (b) Procedure. The request shall set forth, ei-
application of law or fact, but the court may ther by individual item or by category, the
order that such an interrogatory need not be items to be inspected and describe each with
answered until after designated discovery reasonable particularity. The request shall
APPENDIX B 667
specify a reasonable time, place and manner examination to be made shall deliver to the
of making the inspection and performing the requestor a copy of a detailed written report
related acts. Without leave of court or written of the examining physician setting out the
stipulation, a request may not be served be- physician’s findings, including results of all
fore the time specified in Rule 26(d). tests made, diagnoses and conclusions, to-
The party upon whom the request is gether with like reports of all earlier exami-
served shall serve a written response within nations of the same condition. After delivery
30 days after the service of the request. A the party causing the examination shall be
shorter or longer time may be directed by the entitled upon request to receive from the
court or, in the absence of such an order, party against whom the order is made a like
agreed to in writing by the parties, subject to report of any examination, previously or
Rule 29. The response shall state, with re- thereafter made, of the same condition, un-
spect to each item or category, that inspec- less, in the case of a report of examination of
tion and related activities will be permitted as a person not a party, the party shows that
requested, unless the request is objected to, such party is unable to obtain it. The court
in which event the reasons for objection shall on motion may make an order against a
be stated. If objection is made to part of an party requiring delivery of a report on such
item or category, the part shall be specified terms as are just, and if a physician fails or
and inspection permitted of the remaining refuses to make a report, the court may ex-
parts. The party submitting the request may clude the physician’s testimony if offered at
move for an order under Rule 37(a) with re- the trial.
spect to any objection to or other failure to re- (2) By requesting and obtaining a report
spond to the request or any part thereof, or of the examination so ordered or by taking
any failure to permit inspection as requested. the deposition of the examiner, the party ex-
A party who produces documents for in- amined waives any privilege the party may
spection shall produce them as they are kept have in that action or any other involving the
in the usual course of business or shall or- same controversy, regarding the testimony
ganize and label them to correspond with the of every other person who has examined or
categories in the request. may thereafter examine the party in respect
(c) Persons Not Parties. A person not a party of the same mental or physical condition.
to the action may be compelled to produce (3) This subdivision applies to examina-
documents and things or to submit to an in- tions made by agreement of the parties, unless
spection as provided in Rule 45. the agreement expressly provides otherwise.
This subdivision does not preclude discovery
Rule 35. Physical and Mental Examination of a report of an examiner or the taking of a
of Persons. deposition of the examiner in accordance with
(a) Order for Examination. When the mental the provisions of any other Rule.
or physical condition (including the blood
group) of a party, or of a person in the cus- Rule 36. Requests for Admission.
tody or under the legal control of a party, is in (a) Request for Admission. A party may serve
controversy, the court in which the action is upon any other party a written request for the
pending may order the party to submit to a admission, for purposes of the pending action
physical examination by a physician or men- only, of the truth of any matters within the
tal examination by a physician or psycholo- scope of Rule 26(b)(1) set forth in the request
gist or to produce for examination the person that relate to statements or opinions of fact or
in the party’s custody or legal control. The or- of the application of law to fact, including the
der may be made only on motion for good genuineness of any documents described in
cause shown and upon notice to the person the request. Copies of documents shall be
to be examined and to all parties and shall served with the request unless they have
specify the time, place, manner, conditions been or are otherwise furnished or made
and scope of the examination and the person available for inspection and copying. Without
or persons by whom it is to be made. leave of court or written stipulation, requests
(b) Report of Examining Physician. for admission may not be served before the
(1) If requested by the party against time specified in Rule 26(d).
whom an order is made under Rule 35(a) or Each matter of which an admission is re-
the person examined, the party causing the quested shall be separately set forth. The
668 APPENDIX B
matter is admitted unless, within 30 days af- subserved thereby and the party who ob-
ter service of the request, or within such tained the admission fails to satisfy the court
shorter or longer time as the court may allow that withdrawal or amendment will prejudice
or as the parties may agree to in writing, sub- the party in maintaining the action or defense
ject to Rule 29, the party to whom the request on the merits. Any admission made by a party
is directed serves upon the party requesting under this Rule is for the purpose of the pend-
the admission a written answer or objection ing action only and is not an admission for
addressed to the matter, signed by the party any other purpose nor may it be used against
or by the party’s attorney. If objection is the party in any other proceeding.
made, the reasons therefor shall be stated.
The answer shall specifically deny the matter Rule 37. Failure to Make or Cooperate
or set forth in detail the reasons why the an- in Discovery; Sanctions.
swering party cannot truthfully admit or deny (a) Motion for Order Compelling Discovery.
the matter. A denial shall fairly meet the sub- A party, upon reasonable notice to other par-
stance of the requested admission, and when ties and all persons affected thereby, may ap-
good faith requires that a party qualify an an- ply for an order compelling disclosure or dis-
swer or deny only a part of the matter of covery as follows:
which an admission is requested, the party (1) Appropriate Court. An application for an
shall specify so much of it as is true and qual- order to a party shall be made to the court in
ify or deny the remainder. An answering party which the action is pending. An application for
may not give lack of information or knowl- an order to a person who is not a party shall be
edge as a reason for failure to admit or deny made to the court in the district where the dis-
unless the party states that the party has covery is being, or is to be, taken.
made reasonable inquiry and that the infor- (2) Motion.
mation known or readily obtainable by the (A) If a party fails to make a disclosure re-
party is insufficient to enable the party to ad- quired by Rule 26(a), any other party may
mit or deny. A party who considers that a mat- move to compel disclosure and for appropri-
ter of which an admission has been requested ate sanctions. The motion must include a cer-
presents a genuine issue for trial may not, on tification that the movant has in good faith
that ground alone, object to the request; the conferred or attempted to confer with the
party may, subject to the provisions of Rule party not making the disclosure in an effort to
37(c), deny the matter or set forth reasons secure the disclosure without court action.
why the party cannot admit or deny it. (B) If a deponent fails to answer a ques-
The party who has requested the admis- tion propounded or submitted under Rules 30
sions may move to determine the sufficiency or 31, or a corporation or other entity fails to
of the answers of objections. Unless the make a designation under Rule 30(b)(6) or
court determines that an objection is justi- 31(a), or a party fails to answer an interroga-
fied, it shall order that an answer be served. tory submitted under Rule 33, or if a party, in
If the court determines that an answer does response to a request for inspection submit-
not comply with the requirements of this ted under Rule 34, fails to respond, that in-
Rule, it may order either that the matter is ad- spection will be permitted as requested or
mitted or that an amended answer be served. fails to permit inspection as requested, the
The court may, in lieu of these orders, deter- discovering party may move for an order
mine that final disposition of the request be compelling an answer, or a designation or an
made at a pretrial conference or at a desig- order compelling inspection in accordance
nated time prior to trial. The provisions of with the request. The motion must include a
Rule 37(a)(4) apply to the award of expenses certification that the movant has in good faith
incurred in relation to the motion. conferred or attempted to confer with the
(b) Effect of Admission. Any matter admitted person or party failing to make the discovery
under this Rule is conclusively established in an effort to secure the information or ma-
unless the court on motion permits with- terial without court action. When taking a
drawal or amendment of the admission. Sub- deposition on oral examination, the propo-
ject to the provisions of Rule 15 governing nent of the question may complete or adjourn
amendment of a pretrial order, the court may the examination before applying for an order.
permit withdrawal or amendment when the (3) Evasive or Incomplete Disclosure, An-
presentation of the merits of the action will be swer, or Response. For purposes of this subdi-
APPENDIX B 669
vision an evasive or incomplete disclosure, action is pending may make such orders in re-
answer or response is to be treated as a fail- gard to the failure as are just, and among oth-
ure to disclose, answer or respond. ers the following:
(4) Expenses and Sanctions. (A) An order that the matters regarding
(A) If the motion is granted or if the dis- which the order was made or any other desig-
closure or requested discovery is provided af- nated facts shall be taken to be established for
ter the motion was filed, the court shall, after the purposes of the action in accordance with
affording an opportunity to be heard, require the claim of the party obtaining the order;
the party or deponent whose conduct neces- (B) An order refusing to allow the dis-
sitated the motion or the party or attorney ad- obedient party to support or oppose desig-
vising such conduct or both of them to pay to nated claims or defenses, or prohibiting that
the moving party the reasonable expenses in- party from introducing designated matters in
curred in making the motion, including attor- evidence;
ney’s fees, unless the court finds that the mo- (C) An order striking out pleadings or
tion was filed without the movant’s first parts thereof, or staying further proceedings
making a good faith effort to obtain the dis- until the order is obeyed or dismissing the ac-
closure or discovery without court action, or tion or proceeding or any part thereof, or ren-
that the opposing party’s nondisclosure, re- dering a judgment by default against the dis-
sponse or objection was substantially justi- obedient party;
fied or that other circumstances make an (D) In lieu of any of the foregoing orders
award of expenses unjust. or in addition thereto, an order treating as a
(B) If the motion is denied, the court may contempt of court the failure to obey any or-
enter any protective order authorized under ders except an order to submit to a physical
Rule 26(c) and shall, after affording an oppor- or mental examination;
tunity to be heard, require the moving party (E) Where a party has failed to comply
or the attorney filing the motion or both of with an order under Rule 35(a) requiring that
them to pay to the party or deponent who op- party to produce another for examination,
posed the motion the reasonable expenses in- such orders as are listed in paragraphs (A),
curred in opposing the motion, including at- (B) and (C) of this subdivision, unless the
torney’s fees, unless the court finds that the party failing to comply shows that party is un-
making of the motion was substantially justi- able to produce such person for examination.
fied or that other circumstances make an In lieu of any of the foregoing orders or in
award of expenses unjust. addition thereto, the court shall require the
(C) If the motion is granted in part and de- party failing to obey the order or the attorney
nied in part, the court may enter any protec- advising that party or both to pay the reason-
tive order authorized under Rule 26(c) and able expenses, including attorney’s fees,
may, after affording an opportunity to be caused by the failure, unless the court finds
heard, apportion the reasonable expenses in- that the failure was substantially justified or
curred in relation to the motion among the that other circumstances make an award of
parties and persons in a just manner. expenses unjust.
(b) Failure to Comply with Order. (c) Failure to Disclose; False or Misleading
(1) Sanctions by Court in District Where De- Disclosure; Refusal to Admit.
position Is Taken. If a deponent fails to be sworn (1) A party that without substantial justi-
or to answer a question after being directed to fication fails to disclose information required
do so by the court in the district in which the by Rule 26(a) or 26(e)(1) shall not, unless
deposition is being taken, the failure may be such failure is harmless, be permitted to use
considered a contempt of that court. as evidence at a trial, at a hearing, or on a mo-
(2) Sanctions by Court in Which Action Is tion any witness or information not so dis-
Pending. If a party or officer, director or man- closed. In addition to or in lieu of this sanc-
aging agent of a party or a person designated tion, the court, on motion and after affording
under Rule 30(b)(6) or 31(a) to testify on be- an opportunity to be heard, may impose
half of a party fails to obey an order to pro- other appropriate sanctions. In addition to
vide or permit discovery, including an order requiring payment of reasonable expenses,
made under subdivision (a) of this Rule or including attorney’s fees, caused by the fail-
Rule 35, or if a party fails to obey an order en- ure, these sanctions may include any of the
tered under Rule 26(f), the court in which the actions authorized under subparagraphs (A),
670 APPENDIX B
(B) and (C) of subdivision (b)(2) of this Rule The failure to act described in this subdivi-
and may include informing the jury of the fail- sion may not be excused on the ground that the
ure to make the disclosure. discovery sought is objectionable unless the
(2) If a party fails to admit the genuine- party failing to act has a pending motion for a
ness of any document or the truth of any mat- protective order as provided by Rule 26(c).
ter as requested under Rule 36, and if the (e) Subpoena of Person in Foreign Country.
party requesting the admissions thereafter Abrogated by amendment Apr. 29, 1980, eff.
proves the genuineness of the document or Aug. 1, 1980.
the truth of the matter, the requesting party (f) Expenses Against United States. Repealed
may apply to the court for an order requiring by P.L. 69-481, eff. Oct. 1, 1981.
the other party to pay the reasonable ex- (g) Failure to Participate in the Framing of
penses incurred in making that proof, includ- a Discovery Plan. If a party or a party’s at-
ing reasonable attorney’s fees. The court torney fails to participate in good faith in
shall make the order unless it finds that (A) the development and submission of a pro-
the request was held objectionable pursuant posed discovery plan as required by Rule
to Rule 36(a) or (B) the admission sought was 26(f), the court may, after opportunity for
of no substantial importance, or (C) the party hearing, require such party or attorney to
failing to admit had reasonable ground to be- pay to any other party the reasonable ex-
lieve that the party might prevail on the mat- penses, including attorney’s fees, caused by
ter, or (D) there was other good reason for the the failure.
failure to admit. VI. Trials.
(d) Failure of Party to Attend at Own Depo-
sition or Serve Answers to Interrogatories Rule 38. Jury Trial of Right.
or Respond to Request for Inspection. If a (a) Right Preserved. The right of trial by jury
party or an officer, director or managing as declared by the Seventh Amendment to the
agent of a party or a person designated under Constitution or as given by a statute of the
Rule 30(b)(6) or 31(a) to testify on behalf of a United States shall be preserved to the par-
party fails (1) to appear before the officer ties inviolate.
who is to take the deposition, after being (b) Demand. Any party may demand a trial
served with a proper notice, or (2) to serve by jury of any issue triable of right by a jury
answers or objections to interrogatories sub- by (1) serving upon the other parties a de-
mitted under Rule 33, after proper service of mand therefor in writing at any time after the
the interrogatories, or (3) to serve a written commencement of the action and not later
response to a request for inspection submit- than 10 days after the service of the last
ted under Rule 34, after proper service of the pleading directed to such issue, and (1) filing
request, the court in which the action is pend- the demand as required by Rule 5(d). Such
ing on motion may make such orders in re- demand may be endorsed upon a pleading of
gard to the failure as are just, and among oth- the party.
ers it may take any action authorized under (c) Same: Specification of Issues. In the de-
subparagraphs (A), (B) and (C) of subdivision mand, a party may specify the issues which
(b)(2) of this Rule. Any motion specifying a the party wishes so tried; otherwise the party
failure under clause (2) or (3) of this subdivi- shall be deemed to have demanded trial by
sion shall include a certification that the jury for all of the issues so triable. If the party
movant has in good faith conferred or at- has demanded trial by jury for only some of
tempted to confer with the party failing to an- the issues, any other party within 10 days af-
swer or respond in an effort to obtain such an- ter service of the demand or such lesser time
swer or response without court action. In lieu as the court may order, may serve a demand
of any order or in addition thereto, the court for trial by jury of any other or all of the issues
shall require the party failing to act or the at- of fact in the action.
torney advising that party or both to pay the (d) Waiver. The failure of a party to serve and
reasonable expenses, including attorney’s file a demand as required by this Rule consti-
fees, caused by the failure, unless the court tutes a waiver by the party of trial by jury. A
finds that the failure was substantially justi- demand for trial by jury made as herein pro-
fied or that other circumstances make an vided may not be withdrawn without the con-
award of expenses unjust. sent of the parties.
APPENDIX B 671
(e) Admiralty and Maritime Claims. These answer or of a motion for summary judgment,
Rules shall not be construed to create a whichever first occurs, or (ii) by filing a stip-
right to trial by jury of the issues in an ad- ulation of dismissal signed by all parties who
miralty or maritime claim within the mean- have appeared in the action. Unless other-
ing of Rule 9(h). wise stated in the notice of dismissal or stip-
Rule 39. Trial by Jury or by the Court. ulation, the dismissal is without prejudice, ex-
cept that a notice of dismissal operates as an
(a) By Jury. When trial by jury has been de- adjudication upon the merits when filed by a
manded as provided in Rule 38, the action plaintiff who has once dismissed in any court
shall be designated upon the docket as a jury of the United States or of any state an action
action. The trial of all issues so demanded based on or including the same claim.
shall be by jury, unless (1) the parties or their (2) By Order of the Court. Except as pro-
attorneys of record, by written stipulation filed vided in paragraph (1) of this subdivision of
with the court or by an oral stipulation made this Rule, an action shall not be dismissed at
in open court and entered in the record, con- the plaintiff’s instance save upon order of the
sent to trial by the court sitting without a jury court and upon such terms and conditions as
or (2) the court upon motion or of its own ini- the court deems proper. If a counterclaim has
tiative finds that a right of trial by jury of some been pleaded by a defendant prior to the serv-
or all of those issues does not exist under the ice upon the defendant of the plaintiff’s motion
Constitution or statutes of the United States. to dismiss, the action shall not be dismissed
(b) By the Court. Issues not demanded for trial against the defendant’s objection unless the
by jury as provided in Rule 38 shall be tried by counterclaim can remain pending for inde-
the court; but, notwithstanding the failure of a pendent adjudication by the court. Unless oth-
party to demand a jury in an action in which erwise specified in the order, a dismissal under
such a demand might have been made of right, this paragraph is without prejudice.
the court in its discretion upon motion may or- (b) Involuntary Dismissal: Effect Thereof.
der a trial by a jury of any or all issues. For failure of the plaintiff to prosecute or to
(c) Advisory Jury and Trial by Consent. In all comply with these Rules or any order of
actions not triable of right by a jury, the court court, a defendant may move for dismissal of
upon motion or of its own initiative may try an action or of any claim against the defen-
any issue with an advisory jury or, except in dant. Unless the court in its order for dis-
actions against the United States when a missal otherwise specifies, a dismissal under
statute of the United States provides for trial this subdivision and any dismissal not pro-
without a jury, the court, with the consent of vided for in this Rule, other than a dismissal
both parties, may order a trial with a jury for lack of jurisdiction, for improper venue or
whose verdict has the same effect as if trial by for failure to join a party under Rule 19, oper-
jury had been a matter of right. ates as an adjudication upon the merits.
Rule 40. Assignment of Cases for Trial. (c) Dismissal of Counterclaim, Cross-Claim or
The district courts shall provide by rule for Third-Party Claim. The provisions of this Rule
the placing of actions upon the trial calendar apply to the dismissal of any counterclaim,
(1) without request of the parties or (2) upon cross-claim or third-party claim. A voluntary
request of a party and notice to the other par- dismissal by the claimant alone pursuant to
ties or (3) in such other manner as the courts paragraph (1) of subdivision (a) of this Rule
deem expedient. Precedence shall be given to shall be made before a responsive pleading is
actions entitled thereto by any statute of the served or, if there is none, before the introduc-
United States. tion of evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a
Rule 41. Dismissal of Actions. plaintiff who has once dismissed an action in
(a) Voluntary Dismissal: Effect Thereof. any court commences an action based upon
(1) By Plaintiff; by Stipulation. Subject to the or including the same claim against the same
provisions of Rule 23(e), of Rule 66, and of any defendant, the court may make such order for
statute of the United States, an action may be the payment of costs of the action previously
dismissed by the plaintiff without order of dismissed as it may deem proper and may
court (i) by filing a notice of dismissal at any stay the proceedings in the action until the
time before service by the adverse party of an plaintiff has complied with the order.
672 APPENDIX B
Rule 42. Consolidation; Separate Trials. trict, commonwealth, or within a territory

(a) Consolidation. When actions involving a subject to the administrative or judicial ju-
common question of law or fact are pending risdiction of the United States, or an entry
before the court, it may order a joint hearing therein, when admissible for any purpose,
or trial of any or all of the matters in issue in may be evidenced by an official publication
the actions; it may order all of the actions thereof or by a copy attested by the officer
consolidated; and it may make such orders having the legal custody of the record, or by
concerning proceedings therein as may tend the officer’s deputy, and accompanied by a
to avoid unnecessary costs or delay. certificate that such officer has the custody.
(b) Separate Trials. The court, in furtherance The certificate may be made by a judge of a
of convenience or to avoid prejudice, or when court of record of the district or political
separate trials will be conducive to expedition subdivision in which the record is kept, au-
and economy, may order a separate trial of any thenticated by the seal of the court or may be
claim, cross-claim, counterclaim or third-party made by any public officer having a seal of of-
claim, or of any separate issue or of any num- fice and having official duties in the district
ber of claims, cross-claims, counterclaims, or political subdivision in which the record is
third-party claims or issues, always preserving kept, authenticated by the seal of the offi-
inviolate the right of trial by jury as declared by cer’s office.
the Seventh Amendment to the Constitution or (2) Foreign. A foreign official record, or an
as given by a statute of the United States. entry therein, when admissible for any pur-
pose, may be evidenced by an official publi-
Rule 43. Taking of Testimony. cation thereof; or a copy thereof, attested by
(a) Form. In every trial, the testimony of wit- a person authorized to make the attestation,
nesses shall be taken in open court, unless a and accompanied by a final certification as to
federal law, these Rules, the Federal Rules of the genuineness of the signature and official
Evidence, or other rule adopted by the position (i) of the attesting person, or (ii) of
Supreme Court provide otherwise. The court any foreign official whose certificate of gen-
may, for good cause shown in compelling cir- uineness of signature and official position re-
cumstances and upon appropriate safeguards, lates to the attestation or is in a chain of cer-
permit presentation of testimony in open tificates of genuineness of signature and
court by contemporaneous transmission from official position relating to the attestation. A
a different location. final certification may be made by a secre-
(b) Abrogated tary of embassy or legation, consul general,
(c) Abrogated consul, vice consul or consular agent of the
(d) Affirmation in Lieu of Oath. Whenever United States or a diplomatic or consular of-
under these rules an oath is required to be ficial of the foreign country assigned or ac-
taken, a solemn affirmation may be accepted credited to the United States. If reasonable
in lieu thereof. opportunity has been given to all parties to
(e) Evidence on Motions. When a motion is investigate the authenticity and accuracy of
based on facts not appearing of record, the the documents, the court may, for good
court may hear the matter on affidavits pre- cause shown, (i) admit an attested copy with-
sented by the respective parties, but the court out final certification or (ii) permit the for-
may direct that the matter be heard wholly or eign official record to be evidenced by an at-
partly on oral testimony or deposition. tested summary with or without a final
(f) Interpreters. The court may appoint an in- certification.
terpreter of its own selection and may fix the (b) Lack of Record. A written statement that
interpreter’s reasonable compensation. The after diligent search no record or entry of a
compensation shall be paid out of funds pro- specified tenor is found to exist in the
vided by law or by one or more of the parties records designated by the statement, au-
as the court may direct, and may be taxed ulti- thenticated as provided in subdivision (a)(1)
mately as costs, in the discretion of the court. of this Rule in the case of a domestic record,
or complying with the requirements of sub-
Rule 44. Proof of Official Record. division (a)(2) of this Rule for a summary in
(a) Authentication. the case of a foreign record, is admissible as
(1) Domestic. An official record kept evidence that the records contain no such
within the United States, or any state, dis- record or entry.
APPENDIX B 673
(c) Other Proof. This Rule does not prevent (A) a court in which the attorney is au-
the proof of official records or of entry or lack thorized to practice; or
of entry therein by any other method author- (B) a court for a district in which a depo-
ized by law. sition or production is compelled by the sub-
poena, if the deposition or production per-
Rule 44.1. Determination of Foreign Law. tains to an action pending in a court in which
A party who intends to raise an issue con- the attorney is authorized to practice.
cerning the law of a foreign country shall give (b) Service.
notice by pleadings or other reasonable writ- (1) A subpoena may be served by any
ten notice. The court, in determining foreign person who is not a party and is not less than
law, may consider any relevant material or 18 years of age. Service of a subpoena upon a
source, including testimony, whether or not person named therein shall be made by de-
submitted by a party or admissible under the livering a copy thereof to such person and, if
Federal Rules of Evidence. The court’s deter- the person’s attendance is commanded, by
mination shall be treated as a ruling on a tendering to that person the fees for one
question of law. day’s attendance and the mileage allowed by
law. When the subpoena is issued on behalf
Rule 45. Subpoena. of the United States or an officer or agency
(a) Form; Issuance. thereof, fees and mileage need not be ten-
(1) Every subpoena shall: dered. Prior notice of any commenced pro-
(A) state the name of the court from duction of documents and things or inspec-
which it is issued; and tion of premises before trial shall be served
(B) state the title of the action, the name on each party in the manner prescribed by
of the court in which it is pending, and its civil Rule 5(b).
action number; and (2) Subject to the provisions of clause
(C) command each person to whom it is (ii) of subparagraph (c)(3)(a) of this Rule, a
directed to attend and give testimony or to subpoena may be served at any place within
produce and permit inspection and copying the district of the court by which it is issued,
of designated books, documents or tangible or at any place without the district that is
things in the possession, custody or control within 100 miles of the place of the deposi-
of that person, or to permit inspection of tion, hearing, trial, production or inspection
premises, at a time and place therein speci- specified in the subpoena or at any place
fied; and within the State where a State statute or rule
(D) set forth the text of subdivisions (c) of court permits service of a subpoena is-
and (d) of this Rule. sued by a State court of general jurisdiction
A command to produce evidence or to sitting in the place of the deposition, hearing,
permit inspection may be joined with a com- trial, production or inspection specified in
mand to appear at trial or hearing or at depo- the subpoena. When a statute of the United
sition, or may be issued separately. States provides therefor, the court upon
(2) A subpoena commanding attendance proper application and cause shown may au-
at a trial or hearing shall issue from the court thorize the service of a subpoena at any
for the district in which the hearing or trial is other place. A subpoena directed to a wit-
to be held. A subpoena for attendance at a ness in a foreign country who is a national or
deposition shall issue from the court for the resident of the United States shall issue un-
district designated by the notice of deposi- der the circumstances and in the manner and
tion as the district in which the deposition is be served as provided in Title 28, U.S.C.
to be taken. If separate from a subpoena com- §1783.
manding the attendance of a person, a sub- (3) Proof of service when necessary shall
poena for production or inspection shall is- be made by filing with the clerk of the court
sue from the court for the district in which by which the subpoena is issued a statement
the production or inspection is to be made. of the date and manner of service and of the
(3) The clerk shall issue a subpoena, names of the persons served, certified by the
signed but otherwise in blank, to a party re- person who made the service. A subpoena
questing it, who shall complete it before serv- may also command the person to whom it is
ice. An attorney as officer of the court may directed to produce the books, papers, docu-
also issue and sign a subpoena on behalf of: ments or tangible things designated therein;
674 APPENDIX B
but the court, upon motion made promptly regularly transacts business in person, ex-
and in any event at or before the time speci- cept that, subject to the provisions of clause
fied in the subpoena for compliance there- (c)(3)(B)(iii) of this Rule, such a person may
with, may (1) quash or modify the subpoena in order to attend trial be commanded to
if it is unreasonable and oppressive or (2) travel from any such place within the State in
condition denial of the motion upon the ad- which the trial is held; or
vancement by the person in whose behalf the (iii) requires disclosure of privileged
subpoena is issued of the reasonable cost of or other protected matter and no exception
producing the books, papers, documents or or waiver applies; or
tangible things. (iv) subjects a person to undue burden.
(c) Protection of Persons Subject to Sub- (B) If a subpoena:
poenas. (i) requires disclosure of a trade secret
(1) A party or an attorney responsible or other confidential research, development
for the issuance and service of a subpoena or commercial information, or
shall take reasonable steps to avoid impos- (ii) requires disclosure of an unre-
ing undue burden or expense on a person tained expert’s opinion or information not de-
subject to that subpoena. The court on be- scribing specific events or occurrences in dis-
half of which the subpoena was issued shall pute and resulting from the expert’s study
enforce this duty and impose upon the party made not at the request of any party, or
or attorney in breach of his duty an appro- (iii) requires a person who is not a party
priate sanction, which may include, but is or an officer of a party to incur substantial ex-
not limited to, lost earnings and a reason- pense to travel more than 100 miles to attend
able attorney’s fee. trial, the court may, to protect a person subject
(2) (A) Subject to paragraph (d)(2) of to or affected by the subpoena, quash or mod-
this Rule, a person commenced to produce ify the subpoena or, if the party in whose behalf
and permit inspection and copying may, the subpoena is issued shows a substantial
within 14 days after service of the subpoena need for the testimony or material that cannot
or before the time specified for compliance be otherwise met without undue hardship and
if such time is less than 14 days after serv- assures that the person to whom the subpoena
ice, serve upon the party or attorney desig- is addressed will be reasonably compensated,
nated in the subpoena written objection to the court may order appearance or production
inspection or copying of any or all of the only upon specified conditions.
designated materials or of the premises. If (d) Duties in Responding to Subpoena.
objection is made, the party serving the (1) A person responding to a subpoena to
subpoena shall not be entitled to inspect produce documents shall produce them as
and copy the materials or inspect the prem- they are kept in the usual course of business
ises except pursuant to an order of the or shall organize and label them to corre-
court by which the subpoena was issued. If spond with the categories in the demand.
objection has been made, the party serving (2) When information subject to a sub-
the subpoena may, upon notice to the per- poena is withheld on a claim that it is privi-
son commanded to produce, move at any leged or subject to protection as trial prepa-
time for an order to compel the production. ration materials, the claim shall be made
Such an order to compel production shall expressly and shall be supported by a de-
protect any person who is not a party or an scription of the nature of the documents,
officer of a party from significant expense communications or things not produced that
resulting from the inspection and copying is sufficient to enable the demanding party to
commanded. contest the claim.
(3) (A) On timely motion, the court by (e) Contempt. Failure by any person without
which a subpoena was issued shall quash or adequate excuse to obey a subpoena served
modify the subpoena if it: upon that person may be deemed a contempt
(i) fails to allow reasonable time for of the court from which the subpoena issued.
compliance; An adequate cause for failure to obey exists
(ii) requires a person who is not a when a subpoena purports to require a non-
party or an officer of a party to travel to a party to attend or produce at a place not
place more than 100 miles from the place within the limits provided by clause (ii) of
where that person resides, is employed or subparagraph (c)(3)(A).
APPENDIX B 675
Rule 46. Exceptions Unnecessary. quiring the written findings thereon as it

Formal exceptions to rulings or orders of the deems most appropriate. The court shall give
court are unnecessary; but for all purposes to the jury such explanation and instruction
for which an exception has heretofore been concerning the matter thus submitted as may
necessary it is sufficient that a party, at the be necessary to enable the jury to make its
time the ruling or order of the court is made findings upon each issue. If in so doing the
or sought, makes known to the court the ac- court omits any issue of fact raised by the
tion which the party desires the court to take pleadings or by the evidence, each party
or the party’s objection to the action of the waives the right to a trial by jury of the issue
court and the grounds therefor; and, if a so omitted unless before the jury retires the
party has no opportunity to object to a ruling party demands its submission to the jury. As
or order at the time it is made, the absence of to an issue omitted without such demand, the
an objection does not thereafter prejudice court may make a finding; or, if it fails to do
the party. so, it shall be deemed to have made a finding
in accord with the judgment on the special
Rule 47. Jurors. verdict.
(a) Examination of Jurors. The court may per- (b) General Verdict Accompanied by An-
mit the parties or their attorneys to conduct swer to Interrogatories. The court may sub-
the examination of prospective jurors or may mit to the jury, together with appropriate
itself conduct the examination. In the latter forms for a general verdict, written inter-
event, the court shall permit the parties or rogatories upon one or more issues of fact
their attorneys to supplement the examination the decision of which is necessary to a ver-
by such further inquiry as it deems proper or dict. The court shall give such explanation or
shall itself submit to the prospective jurors instruction as may be necessary to enable
such additional questions of the parties or the jury both to make answers to the inter-
their attorneys as it deems proper. rogatories and to render a general verdict,
(b) Peremptory Challenges. The court shall and the court shall direct the jury both to
allow the number of peremptory challenges make written answers and to render a gen-
provided by 28 U.S.C. §1870. eral verdict. When the general verdict and
(c) Excuse. The court may for good cause ex- the answers are harmonious, the appropriate
cuse a juror from service during trial or de- judgment upon the verdict and answers shall
liberation. be entered pursuant to Rule 58. When the an-
swers are consistent with each other but one
Rule 48. Number of Jurors—Participation or more is inconsistent with the general ver-
in Verdict. dict, judgment may be entered pursuant to
The court shall seat a jury of not fewer than Rule 58 in accordance with the answers,
six and not more than twelve members and all notwithstanding the general verdict, or the
jurors shall participate in the verdict unless court may return the jury for further consid-
excused from service by the court pursuant eration of its answers and verdict or may or-
to Rule 47(c). Unless the parties otherwise der a new trial. When the answers are incon-
stipulate, (1) the verdict shall be unanimous sistent with each other and one or more is
and (2) no verdict shall be taken from a jury likewise inconsistent with the general ver-
reduced in size to fewer than six members. dict, judgment shall not be entered, but the
court shall return the jury for further consid-
Rule 49. Special Verdicts and eration of its answers and verdict or shall or-
Interrogatories. der a new trial.
(a) Special Verdicts. The court may require a
jury to return only a special verdict in the Rule 50. Judgment as a Matter of Law in
form of a special written finding upon each is- Jury Trials; Alternative Motion for New
sue of fact. In that event the court may submit Trial; Conditional Rulings.
to the jury written questions susceptible of (a) Judgment as a Matter of Law.
categorical or other brief answer or may sub- (1) If during a trial by jury a party has
mit written forms of the several special find- been fully heard on an issue and there is no
ings which might properly be made under the legally sufficient evidentiary basis for a rea-
pleadings and evidence; or it may use such sonable jury to find for that party on that is-
other method of submitting the issues and re- sue, the court may determine the issue
676 APPENDIX B
against that party and may grant a motion for the judgment is reversed on appeal, subse-
judgment as a matter of law against that party quent proceedings shall be in accordance
with respect to a claim or defense that cannot with the order of the appellate court.
under the controlling law be maintained or (2) Any motion for a new trial under Rule
defeated without a favorable finding on that 59 by a party against whom judgment as a mat-
issue. ter of law is rendered shall be filed no later
(2) Motions for judgment as a matter of than 10 days after entry of the judgment.
law may be made at any time before submis- (d) Same: Denial of Motion for. If the motion
sion of the case to the jury. Such a motion for judgment as a matter of law is denied, the
shall specify the judgment sought and the law party who prevailed on that motion may, as
and the facts on which the moving party is en- appellee, assert grounds entitling the party to
titled to the judgment. a new trial in the event the appellate court
(b) Renewing Motion for Judgment After concludes that the trial court erred in deny-
Trial; Alternative Motion for New Trial; Con- ing the motion for judgment. If the appellate
ditional Rulings. If, for any reason, the court court reverses the judgment, nothing in this
does not grant a motion for judgment as a rule precludes it from determining that the
matter of law made at the close of all the evi- appellee is entitled to a new trial, or from di-
dence, the court is considered to have sub- recting the trial court to determine whether a
mitted the action to the jury subject to the new trial shall be granted.
court’s later deciding the legal questions
raised by the motion. The movant may renew Rule 51. Instructions to Jury: Objection.
its request for judgment as a matter of law by At the close of the evidence or at such earlier
filing a motion no later than 10 days after en- time during the trial as the court reasonably
try of judgment—and may alternatively re- directs, any party may file written requests
quest a new trial or join a motion for a new that the court instruct the jury on the law as
trial under Rule 59. In ruling on a renewed mo- set forth in the requests. The court shall in-
tion, the court may: form counsel of its proposed action upon the
(1) if a verdict was returned: requests prior to their arguments to the jury.
(A) allow the judgment to stand, The court, at its election, may instruct the
(B) order a new trial, or jury before or after argument, or both. No
(C) direct entry of judgment as a matter party may assign as error the giving or the
of law; or failure to give an instruction unless that party
(2) if no verdict was returned: objects thereto before the jury retires to con-
(A) order a new trial, or sider its verdict, stating distinctly the matter
(B) direct entry of judgment as a matter objected to and the grounds of the objection.
of law. Opportunity shall be given to make the ob-
(c) Granting Renewed Motion for Judgment jection out of the hearing of the jury.
as a Matter of Law; Conditional Rulings; New
Trial Motion. Rule 52. Findings by the Court; Judgment
(1) If the renewed motion for judgment on Partial Findings.
as a matter of law is granted, the court shall (a) Effect. In all actions tried upon the facts
also rule on the motion for a new trial, if any, without a jury or with an advisory jury, the
by determining whether it should be granted court shall find the facts specially and state
if the judgment is thereafter vacated or re- separately its conclusions of law thereon, and
versed, and shall specify the grounds for judgment shall be entered pursuant to Rule
granting or denying the motion for the new 58; and in granting or refusing interlocutory
trial. If the motion for a new trial is thus con- injunctions the court shall similarly set forth
ditionally granted, the order thereon does the findings of fact and conclusions of law
not affect the finality of the judgment. In case which constitute the grounds of its action. Re-
the motion for a new trial has been condi- quests for findings are not necessary for pur-
tionally granted and the judgment is re- poses of review. Findings of fact, whether
versed on appeal, the new trial shall proceed based on oral or documentary evidence, shall
unless the appellate court has otherwise or- not be set aside unless clearly erroneous, and
dered. In case the motion for a new trial has due regard shall be given to the opportunity
been conditionally denied, the appellee on of the trial court to judge of the credibility of
appeal may assert error in that denial; and if the witnesses. The findings of a master, to the
APPENDIX B 677
extent that the court adopts them, shall be lowed by the court does not pay it after notice
considered as the findings of the court. It will and within the time prescribed by the court,
be sufficient if the findings of fact and conclu- the master is entitled to a writ of execution
sions of law are stated orally and recorded in against the delinquent party.
open court following the close of the evi- (b) Reference. A reference to a master shall
dence or appear in an opinion or memoran- be the exception and not the rule. In actions
dum of decision filed by the court. Findings of to be tried by a jury, a reference shall be made
fact and conclusions of law are unnecessary only when the issues are complicated; in ac-
on decisions of motions under Rule 12 or 56 tions to be tried without a jury, save in mat-
or any other motion except as provided in ters of account and of difficult computation of
subdivision (c) of this rule. damages, a reference shall be made only upon
(b) Amendment. On a party’s motion filed no a showing that some exceptional condition
later than 10 days after entry of judgment, the requires it. Upon the consent of the parties, a
court may amend its findings—or make addi- magistrate judge may be designated to serve
tional findings—and may amend the judg- as a special master without regard to the pro-
ment accordingly. The motion may accom- visions of this subdivision.
pany a motion for a new trial under Rule 59. (c) Powers. The order of reference to the mas-
When findings of fact are made in actions ter may specify or limit the master’s powers
tried without a jury, the sufficiency of the ev- and may direct the master to report only upon
idence supporting the findings may be later particular issues or to do or perform particular
questioned whether or not in the district acts or to receive and report evidence only and
court the party raising the question objected may fix the time and place for beginning and
to the findings, moved to amend them, or closing the hearings and for the filing of the
moved for partial findings. master’s report. Subject to the specifications
(c) Judgment on Partial Findings. If during a and limitations stated in the order, the master
trial without a jury a party has been fully has and shall exercise the power to regulate all
heard on an issue and the court finds against proceedings in every hearing before the master
the party on that issue, the court may enter and to do all acts and take all measures neces-
judgment as a matter of law against that party sary or proper for the efficient performance of
with respect to a claim or defense that cannot the master’s duties under the order. The mas-
under the controlling law be maintained or ter may require the production before the mas-
defeated without a favorable finding on that ter of evidence upon all matters embraced in
issue, or the court may decline to render any the reference, including the production of all
judgment until the close of all the evidence. books, papers, vouchers, documents and writ-
Such a judgment shall be supported by findings applicable thereto. The master may rule
ings of fact and conclusions of law as required upon the admissibility of evidence unless oth-
by subdivision (a) of this rule. erwise directed by the order of reference and
has the authority to put witnesses on oath and
Rule 53. Masters. may examine them and may call the parties to
(a) Appointment and Compensation. The the action and examine them upon oath. When
court in which any action is pending may ap- a party so requests, the master shall make a
point a special master therein. As used in record of the evidence offered and excluded in
these Rules the word “master” includes a ref- the same manner and subject to the same limi-
eree, an auditor, an examiner and an assessor. tations as provided in the Federal Rules of Evi-
The compensation to be allowed to a master dence for a court sitting without a jury.
shall be fixed by the court, and shall be (d) Proceedings.
charged upon such of the parties or paid out (1) Meetings. When a reference is made, the
of any fund or subject matter of the action, clerk shall forthwith furnish the master with a
which is in the custody and control of the copy of the order of reference. Upon receipt
court as the court may direct; provided that thereof unless the order of reference otherwise
this provision for compensation shall not ap- provides, the master shall forthwith set a time
ply when a United States magistrate judge is and place for the first meeting of the parties or
designated to serve as a master. The master their attorneys to be held within 20 days after
shall not retain the master’s report as secu- the date of the order of reference and shall no-
rity for the master’s compensation; but when tify the parties or their attorneys. It is the duty
the party ordered to pay the compensation al- of the master to proceed with all reasonable
678 APPENDIX B
diligence. Either party, on notice to the parties objections thereto shall be by motion and
and master, may apply to the court for an order upon notice as prescribed in Rule 6(d). The
requiring the master to speed the proceedings court after hearing may adopt the report or
and to make the report. If a party fails to appear may modify it or may reject in whole or in
at the time and place appointed, the master part or may receive further evidence or may
may proceed ex parte or, in the master’s dis- recommit it with instructions.
cretion, adjourn the proceeding to a future day, (3) In Jury Actions. In an action to be tried
giving notice to the absent party of the ad- by a jury, the master shall not be directed to
journment. report the evidence. The master’s findings
(2) Witnesses. The parties may procure upon the issues submitted to the master are
the attendance of witnesses before the mas- admissible as evidence of the matters found
ter by the issuance and service of subpoenas and may be read to the jury, subject to the rul-
as provided in Rule 45. If without adequate ex- ing of the court upon any objections in point
cuse a witness fails to appear or give evi- of law which may be made to the report.
dence, the witness may be punished as for a (4) Stipulation as to Findings. The effect of
contempt and be subjected to the conse- a master’s report is the same whether or not
quences, penalties and remedies provided in the parties have consented to the reference;
Rules 37 and 45. but, when the parties stipulate that a master’s
(3) Statement of Accounts. When matters of findings of fact shall be final, only questions
accounting are in issue before the master, the of law arising upon the report shall thereafter
master may prescribe the form in which the be considered.
accounts shall be submitted and in any (5) Draft Report. Before filing the master’s
proper case may require or receive in evi- report a master may submit a draft thereof to
dence a statement by a certified public ac- counsel for all parties for the purpose of re-
countant who is called as a witness. Upon ob- ceiving their suggestions.
jection of a party to any of the items thus (f) Application to Magistrate Judge. A magis-
submitted or upon a showing that the form of trate judge is subject to this Rule only when
statement is insufficient, the master may re- the order referring a matter to the magistrate
quire a different form of statement to be fur- judge expressly provides that the reference is
nished, or the accounts or specific items made under this Rule.
thereof to be proved by oral examination of
the accounting parties or upon written inter- VII. Judgment.
rogatories or in such other manner as the
master directs. Rule 54. Judgments; Costs.
(e) Report. (a) Definition; Form. “Judgment” as used in
(1) Contents and Filing. The master shall these Rules includes a decree and any order
prepare a report upon the matters submitted from which an appeal lies. A judgment shall
to the master by the order of reference and, if not contain a recital of pleadings, the report of
required to make findings of fact and conclu- a master or the record of prior proceedings.
sions of law, the master shall set them forth in (b) Judgment Upon Multiple Claims or In-
the report. The master shall file the report volving Multiple Parties. When more than
with the clerk of the court and in an action to one claim for relief is presented in an action,
be tried without a jury, unless otherwise di- whether as a claim, counterclaim, cross-claim
rected by the order of reference, shall file or third-party claim, or when multiple parties
with it a transcript of the proceedings and of are involved, the court may direct the entry of
the evidence and the original exhibits. The a final judgment as to one or more but fewer
clerk shall forthwith mail to all parties notice than all of the claims or parties only upon an
of the filing. express determination that there is no just
(2) In Non-Jury Actions. In an action to be reason for delay and upon an express direc-
tried without a jury the court shall accept tion for the entry of judgment. In the absence
the master’s findings of fact unless clearly of such determination and direction, any or-
erroneous. Within 10 days after being served der or other form of decision, however desig-
with notice of the filing of the report, any nated, which adjudicates fewer than all of the
party may serve written objections thereto claims or the rights and liabilities of fewer
upon the other parties. Application to the than all of the parties shall not terminate the
court for action upon the report and upon action as to any of the claims or parties, and
APPENDIX B 679
the order or other form of decision is subject (D) By local rule the court may establish
to revision at any time before the entry of special procedures by which issues relating
judgment adjudicating all of the claims and to such fees may be resolved without exten-
the rights and liabilities of all of the parties. sive evidentiary hearings. In addition, the
(c) Demand for Judgment. A judgment by de- court may refer issues relating to the value of
fault shall not be different in kind from or ex- services to a special master under Rule 53
ceed in amount that prayed for in the demand without regard to the provisions of subdivi-
for judgment. Except as to a party against sion (b) thereof and may refer a motion for at-
whom a judgment is entered by default, every torney’s fees to a magistrate judge under Rule
final judgment shall grant the relief to which 72(b) as if it were a dispositive pretrial matter.
the party in whose favor it is rendered is enti- (E) The provisions of subparagraphs (A)
tled, even if the party has not demanded such through (D) do not apply to claims for fees
relief in the party’s pleadings. and expenses as sanctions for violations of
(d) Costs; Attorney’s Fees. these Rules or under 28 U.S.C. §1927.
(1) Costs Other than Attorney’s Fees. Except
when express provision therefor is made ei- Rule 55. Default.
ther in a statute of the United States or in (a) Entry. When a party against whom a judg-
these Rules, costs other than attorney’s fees ment for affirmative relief is sought has failed
shall be allowed as of course to the prevailing to plead or otherwise defend as provided by
party unless the court otherwise directs; but these Rules and that fact is made to appear by
costs against the United States, its officers affidavit or otherwise, the clerk shall enter
and agencies shall be imposed only to the ex- the party’s default.
tent permitted by law. Such costs may be (b) Judgment. Judgment by default may be
taxed by the clerk on one day’s notice. On mo- entered as follows:
tion served within 5 days thereafter, the ac- (1) By the Clerk. When the plaintiff’s
tion of the clerk may be reviewed by the court. claim against a defendant is for a sum cer-
(2) Attorney’s Fees. tain or for a sum which can by computation
(A) Claims for attorney’s fees and related be made certain, the clerk upon request of
nontaxable expenses shall be made by mo- the plaintiff and upon affidavit of the
tion unless the substantive law governing the amount due shall enter judgment for that
action provides for the recovery of such fees amount and costs against the defendant, if
as an element of damages to be proved at the defendant has been defaulted for failure
trial. to appear and is not an infant or incompe-
(B) Unless otherwise provided by statute tent person.
or order of the court, the motion must be filed (2) By the Court. In all other cases the
and served no later than 14 days after entry of party entitled to a judgment by default shall
judgment; must specify the judgment and the apply to the court therefor; but no judgment
statute, rule or other grounds entitling the by default shall be entered against an infant
moving party to the award; and must state or incompetent person unless represented in
the amount or provide a fair estimate of the the action by a general guardian, committee,
amount sought. If directed by the court, the conservator or other such representative
motion shall also disclose the terms of any who has appeared therein. If the party
agreement with respect to fees to be paid for against whom judgment by default is sought
the services for which claim is made. has appeared in the action, the party (of, if
(C) On request of a party or class member, appearing by representative, the party’s rep-
the court shall afford an opportunity for ad- resentative) shall be served with written no-
versary submissions with respect to the mo- tice of the application for judgment at least 3
tion in accordance with Rule 43(e) or Rule 78. days prior to the hearing on such applica-
The court may determine issues of liability for tion. If, in order to enable the court to enter
fees before receiving submissions bearing on judgment or to carry it into effect, it is nec-
issues of evaluation of services for which lia- essary to take an account or to determine the
bility is imposed by the court. The court shall amount of damages or to establish the truth
find the facts and state its conclusions of law of any averment by evidence or to make an
as provided in Rule 52(a), and a judgment investigation of any other matter, the court
shall be set forth in a separate document as may conduct such hearings or order such ref-
provided in Rule 58. erences as it deems necessary and proper
680 APPENDIX B
and shall accord a right of trial by jury to the at the hearing of the motion, by examining the
parties when and as required by any statute pleadings and the evidence before it and by
of the United States. interrogating counsel, shall if practicable as-
(c) Setting Aside Default. For good cause certain what material facts exist without sub-
shown, the court may set aside an entry of de- stantial controversy and what material facts
fault and, if a judgment by default has been are actually and in good faith controverted. It
entered, may likewise set it aside in accor- shall thereupon make an order specifying the
dance with Rule 60(b). facts that appear without substantial contro-
(d) Plaintiffs, Counterclaimants, Cross- versy, including the extent to which the
Claimants. The provisions of this Rule apply amount of damages or other relief is not in
whether the party entitled to the judgment by controversy, and directing such further pro-
default is a plaintiff, a third-party plaintiff or a ceedings in the action as are just. Upon the
party who has pleaded a cross-claim or coun- trial of the action the facts so specified shall
terclaim. In all cases a judgment by default is be deemed established, and the trial shall be
subject to the limitations of Rule 54(c). conducted accordingly.
(e) Judgment Against the United States. No (e) Form of Affidavits; Further Testimony;
judgment by default shall be entered against Defense Required. Supporting and opposing
the United States or an officer or agency affidavits shall be made on personal knowl-
thereof unless the claimant establishes a edge, shall set forth such facts as would be
claim or right to relief by evidence satisfac- admissible in evidence and shall show affir-
tory to the court. matively that the affiant is competent to tes-
tify to the matters stated therein. Sworn or
Rule 56. Summary Judgment. certified copies of all papers or parts thereof
(a) For Claimant. A party seeking to recover referred to in an affidavit shall be attached
upon a claim, counterclaim or cross-claim or thereto or served therewith. The court may
to obtain a declaratory judgment may, at any permit affidavits to be supplemented or op-
time after the expiration of 20 days from the posed by depositions, answers to interroga-
commencement of the action or after service tories or further affidavits. When a motion
of a motion for summary judgment by the ad- for summary judgment is made and sup-
verse party, move with or without supporting ported as provided in this Rule, an adverse
affidavits for a summary judgment in the party may not rest upon the mere allegations
party’s favor upon all or any part thereof. or denials of the adverse party’s pleading,
(b) For Defending Party. A party against but the adverse party’s response, by affi-
whom a claim, counterclaim or cross-claim is davits or as otherwise provided in this Rule,
asserted or a declaratory judgment is sought must set forth specific facts showing that
may, at any time, move with or without sup- there is a genuine issue for trial. If the ad-
porting affidavits for a summary judgment in verse party does not so respond, summary
the party’s favor as to all or any part thereof. judgment, if appropriate, shall be entered
(c) Motion and Proceedings Thereon. The against the adverse party.
motion shall be served at least 10 days before (f) When Affidavits Are Unavailable. Should
the time fixed for the hearing. The adverse it appear from the affidavits of a party oppos-
party prior to the day of hearing may serve ing the motion that the party cannot for rea-
opposing affidavits. The judgment sought sons stated present by affidavit facts essen-
shall be rendered forthwith if the pleadings, tial to justify the party’s opposition, the court
depositions, answers to interrogatories and may refuse the application for judgment or
admissions on file, together with the affi- may order a continuance to permit affidavits
davits, if any, show that there is no genuine is- to be obtained or depositions to be taken or
sue as to any material fact and that the mov- discovery to be had or may make such other
ing party is entitled to a judgment as a matter order as is just.
of law. A summary judgment, interlocutory in (g) Affidavits Made in Bad Faith. Should it
character, may be rendered on the issue of li- appear to the satisfaction of the court at any
ability alone although there is a genuine issue time that any of the affidavits presented pur-
as to the amount of damages. suant to this Rule are presented in bad faith
(d) Case Not Fully Adjudicated on Motion. If or solely for the purpose of delay, the court
on motion under this Rule judgment is not shall forthwith order the party employing
rendered upon the whole case or for all of the them to pay to the other party the amount of
relief asked and a trial is necessary, the court the reasonable expenses which the filing of
APPENDIX B 681
the affidavits caused the other party to incur, tions at law in the courts of the United States;
including reasonable attorney’s fees and any and (2) in an action tried without a jury, for
offending party or attorney may be adjudged any of the reasons for which rehearings have
guilty of contempt. heretofore been granted in suits in equity in
the courts of the United States. On a motion
Rule 57. Declaratory Judgments.
for a new trial in an action tried without a jury,
The procedure for obtaining a declaratory the court may open the judgment if one has
judgment pursuant to Title 28 U.S.C. §2201, been entered, take additional testimony,
shall be in accordance with these Rules, and amend findings of fact and conclusions of law
the right to trial by jury may be demanded or make new findings and conclusions, and di-
under the circumstances and in the manner rect the entry of a new judgment.
provided in Rules 38 and 39. The existence (b) Time for Motion. A motion for new trial
of another adequate remedy does not pre- shall be filed no later than 10 days after entry
clude a judgment for declaratory relief in of the judgment.
cases where it is appropriate. The court may (c) Time for Serving Affidavits. When a mo-
order a speeding hearing of an action for a tion for new trial is based upon affidavits,
declaratory judgment and may advance it they shall be filed with the motion. The op-
on the calendar. posing party has 10 days after service to file
opposing affidavits, but that period may be
Rule 58. Entry of Judgment.
extended for up to 20 days, either by the
Subject to the provisions of Rule 54(b): (1) court for good cause shown or by the parties’
upon a general verdict of a jury, or upon a de- written stipulation. The court may permit re-
cision by the court that a party shall recover ply affidavits.
only a sum certain or costs or that all relief (d) On Initiative of Court. No later than 10
shall be denied, the clerk, unless the court oth- days after entry of judgment the court, on its
erwise orders, shall forthwith prepare, sign own, may order a new trial for any reason that
and enter the judgment without awaiting any would justify granting one on a party’s mo-
direction by the court; (2) upon a decision by tion. After giving the parties notice and an op-
the court granting other relief or upon a spe- portunity to be heard, the court may grant a
cial verdict or a general verdict accompanied timely motion for a new trial for a reason not
by answers to interrogatories, the court shall stated in the motion. When granting a new
promptly approve the form of the judgment, trial on its own initiative or for a reason not
and the clerk shall thereupon enter it. Every stated in a motion, the court shall specify the
judgment shall be set forth on a separate doc- grounds in its order.
ument. A judgment is effective only when so (e) Motion to Alter or Amend a Judgment.
set forth and when entered as provided in Rule Any motion to alter or amend a judgment
79(a). Entry of the judgment shall not be de- shall be filed no later than 10 days after entry
layed nor the time for appeal extended, in or- of the judgment.
der to tax costs or award fees, except that,
when a timely motion for attorney’s fees is Rule 60. Relief from Judgment or Order.
made under Rule 54(d)(2), the court, before a (a) Clerical Mistakes. Clerical mistakes in
notice of appeal has been filed and has be- judgments, orders or parts of the record and
come effective, may order that the motion errors therein arising from oversight or omis-
have the same effect under Rule 4(a)(4) of the sion may be corrected by the court at any
Federal Rules of Appellate Procedure as a time of its own initiative or on the motion of
timely motion under Rule 59. Attorneys shall any party and after such notice, if any, as the
not submit forms of judgment except upon di- court orders. During the pendency of an ap-
rection of the court, and these directions shall peal, such mistakes may be so corrected be-
not be given as a matter of course. fore the appeal is docketed in the appellate
court, and thereafter while the appeal is
Rule 59. New Trials; Amendment pending may be so corrected with leave of the
of Judgments. appellate court.
(a) Grounds. A new trial may be granted to all (b) Mistakes; Inadvertence; Excusable Ne-
or any of the parties and on all or part of the glect; Newly Discovered Evidence; Fraud,
issues (1) in an action in which there has been etc. On motion and upon such terms as are
a trial by jury, for any of the reasons for which just, the court may relieve a party or a party’s
new trials have heretofore been granted in ac- legal representative from a final judgment,
682 APPENDIX B
order or proceeding for the following rea- upon a judgment nor shall proceedings be
sons: (1) mistake, inadvertence, surprise or taken for its enforcement until the expiration
excusable neglect; (2) newly discovered evi- of 10 days after its entry. Unless otherwise or-
dence which by due diligence could not have dered by the court, an interlocutory or final
been discovered in time to move for a new judgment in an action for an injunction or in a
trial under Rule 59(b); (3) fraud (whether receivership action, or a judgment or order
heretofore denominated intrinsic or extrin- directing an accounting in an action for in-
sic), misrepresentation or other misconduct fringement of letters patent, shall not be
of an adverse party; (4) the judgment is void; stayed during the period after its entry and
(5) the judgment has been satisfied, released until an appeal is taken or during the pen-
or discharged, or a prior judgment upon dency of an appeal. The provisions of subdi-
which it is based has been reversed or other- vision (c) of this Rule govern the suspending,
wise vacated, or it is no longer equitable that modifying, restoring or granting of an injunc-
the judgment should have prospective appli- tion during the pendency of an appeal.
cation; or (6) any other reason justifying re- (b) Stay on Motion for New Trial or for Judg-
lief from the operation of the judgment. The ment. In its discretion and on such conditions
motion shall be made within a reasonable for the security of the adverse party as are
time, and for reasons (1), (2) and (3) not proper, the court may stay the execution of or
more than one year after the judgment, order any proceedings to enforce a judgment pend-
or proceeding was entered or taken. A mo- ing the disposition of a motion for a new trial
tion under this subdivision (b) does not af- or to alter or amend a judgment made pur-
fect the finality of a judgment or suspend its suant to Rule 59, or of a motion for relief from
operation. This Rule does not limit the power a judgment or order made pursuant to Rule
of a court to entertain an independent action 60, or of a motion for judgment in accordance
to relieve a party from a judgment, order or with a motion for a directed verdict made pur-
proceeding, or to grant relief to a defendant suant to Rule 50, or of a motion for amend-
not actually personally notified as provided ment to the findings or for additional findings
in Title 28, U.S.C., §1655, or to set aside a made pursuant to Rule 52(b).
judgment for fraud upon the court. Writs of (c) Injunction Pending Appeal. When an ap-
coram nobis, coram vobis, audita querela peal is taken from an interlocutory or final
and bills of review and bills in the nature of a judgment granting, dissolving or denying an
bill of review, are abolished and the proce- injunction, the court in its discretion may sus-
dure for obtaining any relief from a judgment pend, modify, restore or grant an injunction
shall be by motion as prescribed in these during the pendency of the appeal upon such
Rules or by any independent action. terms as to bond or otherwise as it considers
proper for the security of the rights of the ad-
Rule 61. Harmless Error. verse party. If the judgment appealed from is
No error in either the admission or the exclu- rendered by a district court of three judges
sion of evidence and no error or defect in any specially constituted pursuant to a statute of
ruling or order or in anything done or omitted the United States, no such order shall be
by the court or by any of the parties is ground made except (1) by such court sitting in open
for granting a new trial or for setting aside a court or (2) by the assent of all the judges of
verdict or for vacating, modifying or other- such court evidenced by their signatures to
wise disturbing a judgment or order, unless the order.
refusal to take such action appears to the (d) Stay Upon Appeal. When an appeal is
court inconsistent with substantial justice. taken, the appellant by giving a supersedes
The court at every stage of the proceeding bond may obtain a stay subject to the excep-
must disregard any error or defect in the pro- tions contained in subdivision (a) of this Rule.
ceeding which does not affect the substantial The bond may be given at or after the time of
rights of the parties. filing the notice of appeal or of procuring the
order allowing the appeal, as the case may be.
Rule 62. Stay of Proceedings to Enforce The stay is effective when the supersedes
a Judgment. bond is approved by the court.
(a) Automatic Stay; Exceptions - Injunctions, (e) Stay in Favor of the United States or
Receiverships and Patent Accountings. Ex- Agency Thereof. When an appeal is taken by
cept as stated herein, no execution shall issue the United States or an officer or agency
APPENDIX B 683
thereof or by direction of any department of provided by the law of the state in which the
the Government of the United States and the district court is held, existing at the time the
operation or enforcement of the judgment is remedy is sought, subject to the following
stayed, no bond, obligation or other security qualifications: (1) any existing statute of the
shall be required from the appellant. United States governs to the extent to which it
(f) Stay According to State Law. In any state in is applicable; (2) the action in which any of the
which a judgment is a lien upon the property foregoing remedies is used shall be com-
of the judgment debtor and in which the judg- menced and prosecuted or, if removed from a
ment debtor is entitled to a stay of execution, state court, shall be prosecuted after removal,
a judgment debtor is entitled, in the district pursuant to these Rules. The remedies thus
court held therein, to such stay as would be available include arrest, attachment, garnish-
accorded the judgment debtor had the action ment, replevin, sequestration and other corre-
been maintained in the courts of that state. sponding or equivalent remedies, however
(g) Power of Appellate Court Not Limited. designated and regardless of whether by state
The provisions in this Rule do not limit any procedure the remedy is ancillary to an action
power of an appellate court or of a judge or or must be obtained by an independent action.
justice thereof to stay proceedings during the
pendency of an appeal or to suspend, modify, Rule 65. Injunctions.
restore or grant an injunction during the pen- (a) Preliminary Injunction.
dency of an appeal or to make any order ap- (1) Notice. No preliminary injunction shall
propriate to preserve the status quo or the ef- be issued without notice to the adverse party.
fectiveness of the judgment subsequently to (2) Consolidation of Hearing with Trial on
be entered. Merits. Before or after the commencement of
(h) Stay of Judgment as to Multiple Claims or the hearing of an application for a preliminary
Multiple Parties. When a court has ordered a injunction, the court may order the trial of the
final judgment under the conditions stated in action on the merits to be advanced and con-
Rule 54(b), the court may stay enforcement of solidated with the hearing of the application.
that judgment until the entering of a subse- Even when this consolidation is not ordered,
quent judgment or judgments and may pre- any evidence received upon an application
scribe such conditions as are necessary to se- for a preliminary injunction which would be
cure the benefit thereof to the party in whose admissible upon the trial on the merits be-
favor the judgment is entered. comes part of the record on the trial and need
not be repeated upon the trial. This subdivi-
Rule 63. Inability of a Judge to Proceed.
sion (a)(2) shall be so construed and applied
If a trial or hearing has been commenced and as to save to the parties any rights they may
the judge is unable to proceed, any other have to trial by jury.
judge may proceed with it upon certifying fa- (b) Temporary Restraining Order; Notice;
miliarity with the record and determining that Hearing; Duration. A temporary restraining
the proceedings in the case may be com- order may be granted without written or oral
pleted without prejudice to the parties. In a notice to the adverse party or that party’s
hearing or trial without a jury, the successor attorney only if (1) it clearly appears from
judge shall at the request of a party recall any specific facts shown by affidavit or by the ver-
witness whose testimony is material and dis- ified complaint that immediate and irrepara-
puted and who is available to testify again ble injury, loss or damage will result to the ap-
without undue burden. The successor judge plicant before the adverse party or that
may also recall any other witness. party’s attorney can be heard in opposition,
VIII. Provisional and Final Remedies and (2) the applicant’s attorney certifies to
and Special Proceedings. the court in writing the efforts, if any, which
have been made to give the notice and the
Rule 64. Seizure of Person or Property. reasons supporting the claim that notice
At the commencement of and during the should not be required. Every temporary re-
course of an action, all remedies providing for straining order granted without notice shall
seizure of person or property for the purpose be indorsed with the date and hour of is-
of securing satisfaction of the judgment ulti- suance; shall be filed forthwith in the clerk’s
mately to be entered in the action are available office and entered of record; shall define the
under the circumstances and in the manner injury and state why it is irreparable and why
684 APPENDIX B
the order was granted without notice; and ing to temporary restraining orders and pre-
shall expire by its terms within such time af- liminary injunctions in actions affecting em-
ter entry, not to exceed 10 days, as the court ployer and employee; or the provisions of Ti-
fixes, unless within the time so fixed the or- tle 28, U.S.C., §2361, relating to preliminary
der, for good cause shown, is extended for a injunctions in actions of interpleader or in the
like period or unless the party against whom nature of interpleader; or Title 28, U.S.C.,
the order is directed consents that it may be §2284, relating to actions required by Act of
extended for a longer period. The reasons for Congress to be heard and determined by a
the extension shall be entered of record. In district court of three judges.
case a temporary restraining order is granted
without notice, the motion for a preliminary Rule 65.1. Security; Proceedings Against
injunction shall be set down for hearing at the Sureties.
earliest possible time and takes precedence Whenever these Rules, including the Supple-
of all matters except older matters of the mental Rules for Certain Admiralty and Mar-
same character; and when the motion comes itime Claims, require or permit the giving of
on for hearing, the party who obtained the security by a party, and security is given in the
temporary restraining order shall proceed form of a bond or stipulation or other under-
with the application for a preliminary injunc- taking with one or more sureties, each surety
tion and, if the party does not do so, the court submits to the jurisdiction of the court and ir-
shall dissolve the temporary restraining or- revocably appoints the clerk of the court as
der. On 2 days’ notice to the party who ob- the surety’s agent upon whom any papers af-
tained the temporary restraining order with- fecting the surety’s liability on the bond or un-
out notice or on such notice to that party as dertaking may be served. The surety’s liability
the court may prescribe, the adverse party may be enforced on motion without the ne-
may appear and move its dissolution or mod- cessity of an independent action. The motion
ification and in that event the court shall pro- and such notice of the motion as the court
ceed to hear and determine such motion as prescribes may be served on the clerk of the
expeditiously as the ends of justice require. court, who shall forthwith mail copies to the
(c) Security. No restraining order or prelimi- sureties if their addresses are known.
nary injunction shall issue except upon the
giving of security by the applicant, in such sum Rule 66. Receivers Appointed by Federal
as the court deems proper, for the payment of Courts.
such costs and damages as may be incurred or An action wherein a receiver has been ap-
suffered by any party who is found to have pointed shall not be dismissed except by or-
been wrongfully enjoined or restrained. No der of the court. The practice in the adminis-
such security shall be required of the United tration of estates by receivers or by other
States or of an officer or agency thereof. similar officers appointed by the court shall
The provisions of Rule 65.1 apply to a be in accordance with the practice heretofore
surety upon a bond or undertaking under this followed in the courts of the United States or
Rule. as provided in rules promulgated by the dis-
(d) Form and Scope of Injunction or Re- trict courts. In all other respects the action in
straining Order. Every order granting an in- which the appointment of a receiver is sought
junction and every restraining order shall set or which is brought by or against a receiver is
forth the reasons for its issuance; shall be governed by these Rules.
specific in terms; shall describe in reasonable
detail and not by reference to the complaint Rule 67. Deposit in Court.
or other document, the act or acts sought to In an action in which any part of the relief
be restrained; and is binding only upon the sought is a judgment for a sum of money or
parties to the action, their officers, agents, the disposition of a sum of money or the dis-
servants, employees and attorneys, and upon position of any other thing capable of deliv-
those persons in active concert or participa- ery, a party, upon notice to every other party,
tion with them who receive actual notice of and by leave of court, may deposit with the
the order by personal service or otherwise. court all or any part of such sum or thing,
(e) Employer and Employee; Interpleader; whether or not that party claims all or any
Constitutional Cases. These Rules do not part of the sum or thing. The party making the
modify any statute of the United States relat- deposit shall serve the order permitting de-
APPENDIX B 685
posit on the clerk of the court. Money paid tion, the judgment creditor or a successor in
into court under this Rule shall be deposited interest when that interest appears of record,
and withdrawn in accordance with the provi- may obtain discovery from any person, in-
sions of Title 28, U.S.C., §§2041 and 2042; the cluding the judgment debtor, in the manner
Act of June 26, 1934, c. 756, §23, as amended provided in these Rules or in the manner pro-
(48 Stat. 1236, 58 Stat. 845), U.S.C., Title 31, vided by the practice of the state in which the
§725v; or any like statute. The fund shall be district court is held.
deposited in an interest-bearing account or (b) Against Certain Public Officers. When a
invested in an interest-bearing instrument ap- judgment has been entered against a collec-
proved by the court. tor or other officer of revenue under the cir-
cumstances stated in Title 28, U.S.C., §2006,
Rule 68. Offer of Judgment. or against an officer of Congress in an action
At any time more than 10 days before the trial mentioned in the Act of March 3, 1875, c. 130,
begins, a party defending against a claim may §8 (18 Stat. 401), U.S.C., Title 2, §118, and
serve upon the adverse party an offer to allow when the court has given the certificate of
judgment to be taken against the defending probable cause for the officer’s act as pro-
party for the money or property or to the effect vided in those statutes, execution shall not is-
specified in the offer, with costs then accrued. sue against the officer or the officer’s prop-
If, within 10 days after the service of the offer, erty but the final judgment shall be satisfied
the adverse party serves written notice that as provided in such statutes.
the offer is accepted, either party may then file
the offer and notice of acceptance together Rule 70. Judgment for Specific Acts;
with proof of service thereof and thereupon the Vesting Title.
clerk shall enter judgment. An offer not ac- If a judgment directs a party to execute a con-
cepted shall be deemed withdrawn and evi- veyance of land or to deliver deeds or other
dence thereof is not admissible except in a pro- documents or to perform any other specific
ceeding to determine costs. If the judgment act and the party fails to comply within the
finally obtained by the offeree is not more fa- time specified, the court may direct the act to
vorable than the offer, the offeree must pay the be done at the cost of the disobedient party
costs incurred after the making of the offer. The by some other person appointed by the court
fact that an offer is made but not accepted does and the act when so done has like effect as if
not preclude a subsequent offer. When the lia- done by the party. On application of the party
bility of one party to another has been deter- entitled to performance, the clerk shall issue a
mined by verdict or order or judgment, but the writ of attachment or sequestration against
amount or extent of the liability remains to be the property of the disobedient party to com-
determined by further proceedings, the party pel obedience to the judgment. The court may
adjudged liable may make an offer of judgment, also in proper cases adjudge the party in con-
which shall have the same effect as an offer tempt. If real or personal property is within
made before trial if it is served within a reason- the district, the court in lieu of directing a
able time not less than 10 days prior to the conveyance thereof may enter a judgment di-
commencement of hearings to determine the vesting the title of any party and vesting it in
amount or extent of liability. others and such judgment has the effect of a
conveyance executed in due form of law.
Rule 69. Execution. When any order or judgment is for the deliv-
(a) In General. Process to enforce a judgment ery of possession, the party in whose favor it
for the payment of money shall be a writ of exis entered is entitled to a writ of execution or
ecution, unless the court directs otherwise. assistance upon application to the clerk.
The procedure on execution, in proceedings
supplementary to and in aid of a judgment, Rule 71. Process in Behalf of and Against
and in proceedings on and in aid of execution Persons Not Parties.
shall be in accordance with the practice and When an order is made in favor of a person
procedure of the state in which the district who is not a party to the action, that person
court is held, existing at the time the remedy may enforce obedience to the order by the
is sought, except that any statute of the same process as if a party; and, when obedi-
United States governs to the extent that it is ence to an order may be lawfully enforced
applicable. In aid of the judgment or execu- against a person who is not a party, that
686 APPENDIX B
person is liable to the same process for en- clerk at least one copy thereof for the use of
forcing obedience to the order as if a party. the defendants and additional copies at the re-
quest of the clerk or of a defendant.
Rule 71A. Condemnation of Property. (d) Process.
(a) Applicability of Other Rules. The Rules of (1) Notice; Delivery. Upon the filing of the
Civil Procedure for the United States District complaint, the plaintiff shall forthwith de-
Courts govern the procedure for the condem- liver to the clerk joint or several notices di-
nation of real and personal property under rected to the defendants named or desig-
the power of eminent domain, except as oth- nated in the complaint. Additional notices
erwise provided in this Rule. directed to defendant subsequently added
(b) Joinder of Properties. The plaintiff may shall be so delivered. The delivery of the no-
join in the same action one or more separate tice and its service have the same effect as
pieces of property, whether in the same or dif- the delivery and service of the summons un-
ferent ownership and whether or not sought der Rule 4.
for the same use. (2) Same; Form. Each notice shall state the
(c) Complaint. court, the title of the action, the name of the
(1) Caption. The complaint shall contain a defendant to whom it is directed, that the ac-
caption as provided in Rule 10(a), except that tion is to condemn property, a description of
the plaintiff shall name as defendants the prop- the defendant’s property sufficient for its iden-
erty, designated generally by kind, quantity tification, the interest to be taken, the author-
and location, and at least one of the owners of ity for the taking, the uses for which the prop-
some part or interest in the property. erty is taken, that the defendant may serve
(2) Contents. The complaint shall contain a upon the plaintiff’s attorney an answer within
short and plain statement of the authority for 20 days after service of the notice, and that the
the taking, the use for which the property is failure so to serve an answer constitutes a con-
to be taken, a description of the property suf- sent to the taking and to the authority of the
ficient for its identification, the interests to be court to proceed to hear the action and to fix
acquired, and as to each separate piece of the compensation. The notice shall conclude
property a designation of the defendants who with the name of the plaintiff’s attorney and an
have been joined as owners thereof or of address within the district in which action is
some interest therein. Upon the commence- brought where the attorney may be served.
ment of the action, the plaintiff need join as The notice need contain a description of no
defendants only the persons having or claim- other property than that to be taken from the
ing an interest in the property whose names defendants to whom it is directed.
are then known, but prior to any hearing in- (3) Service of Notice.
volving the compensation to be paid for a (A) Personal Service. Personal service of
piece of property, the plaintiff shall add as de- the notice (but without copies of the com-
fendants all persons having or claiming an in- plaint) shall be made in accordance with Rule
terest in that property whose names can be 4 upon a defendant whose residence is known
ascertained by a reasonably diligent search of and who resides within the United States or a
the records, considering the character and territory subject to the administrative or ju-
value of the property involved and the inter- dicial jurisdiction of the United States.
ests to be acquired, and also those whose (B) Service by Publication. Upon the filing of a
names have otherwise been learned. All oth- certificate of the plaintiff’s attorney stating that
ers may be made defendants under the desig- the attorney believes a defendant cannot be
nation “Unknown Owners.” Process shall be personally served, because after diligent in-
served as provided in subdivision (d) of this quiry within the state in which the complaint is
Rule upon all defendants, whether named as filed the defendant’s place of residence cannot
defendants at the time of the commencement be ascertained by the plaintiff or, if ascertained,
of the action or subsequently added, and a that is beyond the territorial limits of personal
defendant may answer as provided in subdi- service as provided in this Rule, service of the
vision (e) of this Rule. The court meanwhile notice shall be made on this defendant by pub-
may order such distribution of a deposit as lication in a newspaper published in the county
the facts warrant. where the property is located, or if there is no
(3) Filing. In addition to filing the complaint such newspaper, then in a newspaper having a
with the court, the plaintiff shall furnish to the general circulation where the property is lo-
APPENDIX B 687
cated, once a week for not less than three suc- 5(b), upon any party affected thereby who
cessive weeks. Prior to the last publication, a has appeared and, in the manner provided in
copy of the notice shall also be mailed to a de- subdivision (d) of this Rule, upon any party
fendant who cannot be personally served as affected thereby who has not appeared. The
provided in this Rule but whose place of resi- plaintiff shall furnish to the clerk of the court
dence is then known. Unknown owners may be for the use of the defendants at least one copy
served by publication in like manner by a no- of each amendment, and he shall furnish ad-
tice addressed to “Unknown Owners.” ditional copies of the request of the clerk or
Service by publication is complete upon of a defendant. Within the time allowed by
the date of the last publication. Proof of pub- subdivision (e) of this Rule a defendant may
lication and mailing shall be made by certifi- serve an answer to the amended pleading, in
cate of the plaintiff’s attorney, to which shall the form and manner and with the same effect
be attached a printed copy of the published as there provided.
notice with the name and dates of the news- (g) Substitution of Parties. If a defendant
paper marked thereon. dies or becomes incompetent or transfers an
(4) Return; Amendment. Proof of service of interest after the defendant’s joinder, the
the notice shall be made and amendment of court may order substitution of the proper
the notice or proof of its service allowed in party upon motion and notice of hearing. If
the manner provided for the return and the motion and notice of hearing are to be
amendment of the summons under Rule 4. served upon a person not already a party,
(e) Appearance or Answer. If a defendant service shall be made as provided in subdivi-
has no objection or defense to the taking of sion (d)(3) of this Rule.
the defendant’s property, the defendant may (h) Trial. If the action involves the exercise
serve a notice of appearance designating the of the power of eminent domain under the
property in which the defendant claims to be law of the United States, any tribunal spe-
interested. Thereafter the defendant shall re- cially constituted by an Act of Congress
ceive notice of all proceedings affecting it. If governing the case for the trial of the issue
a defendant has any objection or defense to of just compensation shall be the tribunal
the taking of the property, the defendant for the determination of that issue; but if
shall serve an answer within 20 days after there is no such specially constituted tribu-
the service of notice upon the defendant. nal any party may have a trial by jury of the
The answer shall identify the property in issue of just compensation by filing a de-
which the defendant claims to have an inter- mand therefor within the time allowed for
est, state the nature and extent of the inter- answer or within such further time as the
est claimed, and state all of the defendant’s court may fix, unless the court in its discre-
objections and defenses to the taking of the tion orders that, because of the character,
property. A defendant waives all defenses location or quantity of the property to be
and objections not so presented, but at the condemned, or for other reasons in the in-
trial of the issue of just compensation, terest of justice, the issue of compensation
whether or not the defendant has previously shall be determined by a commission of
appeared or answered, the defendant may three persons appointed by it.
present evidence as to the amount of the In the event that a commission is ap-
compensation to be paid for the property, pointed, the court may direct that not more
and the defendant may share in the distribu- than two additional persons serve as alter-
tion of the award. No other pleading or mo- nate commissioners to hear the case and re-
tion asserting any additional defense or ob- place commissioners who, prior to the time
jection shall be allowed. when a decision is filed, are found by the
(f) Amendment of Pleadings. Without leave court to be unable or disqualified to perform
of court, the plaintiff may amend the com- their duties. An alternate who does not re-
plaint at any time before the trial of the issue place a regular commissioner shall be dis-
of compensation and as many times as de- charged after the commission renders its final
sired, but no amendment shall be made which decision. Before appointing the members of
will result in a dismissal forbidden by subdi- the commission and alternates the court shall
vision (i) of this Rule. The plaintiff need not advise the parties of the identity and qualifi-
serve a copy of an amendment, but shall cations of each prospective commissioner
serve notice of the filing, as provided in Rule and alternate and may permit the parties to
688 APPENDIX B
examine each such designee. The parties of the power of eminent domain; and, al-
shall not be permitted or required by the though not so required, may make a deposit
court to suggest nominees. Each party shall when permitted by statute. In such cases the
have the right to object for valid cause to the court and attorneys shall expedite the pro-
appointment of any person as a commis- ceedings for the distribution of the money so
sioner or alternate. If a commission is ap- deposited and for the ascertainment and
pointed, it shall have the powers of a master payment of just compensation. If the com-
provided in subdivision (c) of Rule 53 and pensation finally awarded to any defendant
proceedings before it shall be governed by exceeds the amount which has been paid to
the provisions of paragraphs (1) and (2) of the defendant or distribution of the deposit,
subdivision (d) of Rule 53. Its action and re- the court shall enter judgment against the
port shall be determined by a majority and its plaintiff and in favor of that defendant for the
findings and report shall have the effect, and deficiency. If the compensation finally
be dealt with by the court in accordance with awarded to any defendant is less than the
the practice, prescribed in paragraph (2) of amount which has been paid to that defen-
subdivision (e) of Rule 53. Trial of all issues dant, the court shall enter judgment against
shall otherwise be by the court. that defendant and in favor of the plaintiff for
(i) Dismissal of Action. the overpayment.
(1) As of Right. If no hearing has begun to ( k) Condemnation Under a State’s Power of
determine the compensation to be paid for a Eminent Domain. The practice as herein pre-
piece of property and the plaintiff has not ac- scribed governs in actions involving the exer-
quired the title or a lesser interest in or taken cise of the power of eminent domain under
possession, the plaintiff may dismiss the ac- the law of a state, provided that if the state
tion as to that property, without an order of law makes provision for trial of any issue by
the court, by filing a notice of dismissal set- jury, or for trial of the issue of compensation
ting forth a brief description of the property by jury or commission or both, that provision
as to which the action is dismissed. shall be followed.
(2) By Stipulation. Before the entry of any
judgment vesting the plaintiff with title or a IX. Magistrates.
lesser interest in or possession of property,
the action may be dismissed in whole or in Rule 72. Magistrate Judges; Pretrial Matters.
part, without an order of the court, as to any (a) Nondispositive Matters. A magistrate
property by filing a stipulation of dismissal by judge to whom a pretrial matter not disposi-
the plaintiff and the defendant affected tive of a claim or defense of a party is referred
thereby; and, if the parties so stipulate, the to hear and determine shall promptly conduct
court may vacate any judgment that has been such proceedings as are required and when
entered. appropriate enter into the record a written or-
(3) By Order of the Court. At any time before der setting forth the disposition of the matter.
compensation for a piece of property has Within 10 days after being served with a copy
been determined and paid and after motion of the magistrate judge’s order, a party may
and hearing, the court may dismiss the action serve and file objections to the order; a party
as to that property, except that it shall not dis- may not thereafter assign as error a defect in
miss the action as to any part of the property the magistrate judge’s order to which objec-
of which the plaintiff has taken possession or tion was not timely made. The district judge to
in which the plaintiff has taken title or lesser whom the case is assigned shall consider ob-
interest, but shall award just compensation jections and shall modify or set aside any por-
for the possession, title or lesser interest so tion of the magistrate judge’s order found to
taken. The court at any time may drop a de- be clearly erroneous or contrary to law.
fendant unnecessarily or improperly joined. (b) Dispositive Motions and Prisoner Peti-
(4) Effect. Except as otherwise provided in tions. A magistrate judge assigned without
the notice, or stipulation of dismissal, or or- consent of the parties to hear a pretrial mat-
der of the court, any dismissal is without ter dispositive of a claim or defense of a party
prejudice. or a prisoner petition challenging the condi-
( j ) Deposit and Its Distribution. The plaintiff tions of a confinement shall promptly con-
shall deposit with the court any money re- duct such proceedings as are required. A
quired by law as a condition to the exercise record shall be made of all evidentiary pro-
APPENDIX B 689
ceedings before the magistrate judge and a availability of the magistrate judge, but, in so
record may be made of such other proceed- doing, shall also advise the parties that they are
ings as the magistrate judge deems neces- free to withhold consent without adverse sub-
sary. The magistrate judge shall enter into the stantive consequences. A district judge or mag-
record a recommendation for disposition of istrate judge shall not be informed of a party’s
the matter, including proposed findings of response to the clerk’s notification, unless all
fact when appropriate. The clerk shall forth- parties have consented to the referral of the
with mail copies to all parties. matter to a magistrate judge.
A party objecting to the recommended The district judge, for good cause shown
disposition of the matter shall promptly on the judge’s own initiative or under ex-
arrange for the transcription of the record, or traordinary circumstances shown by a party,
portions of it as all parties may agree upon or may vacate a reference of a civil matter to a
the magistrate judge deems sufficient, unless magistrate judge under this subdivision.
the district judge otherwise directs. Within 10 (c) Normal Appeal Route. In accordance with
days after being served with a copy of the Title 28, U.S.C. §636(c)(3), unless the parties
recommended disposition, a party may serve otherwise agree to the optional appeal route
and file specific, written objections to the pro- provided for in subdivision (d) of this Rule,
posed findings and recommendations. A appeal from a judgment entered upon direc-
party may respond to another party’s objection of a magistrate judge in proceedings un-
tions within 10 days after being served with a der this Rule will lie to the court of appeals as
copy thereof. The district judge to whom the it would from a judgment of the district court.
case is assigned shall make a de novo deter- (d) Optional Appeal Route. In accordance
mination upon the record, or after additional with Title 28, U.S.C. §636(c)(4), at the time of
evidence, of any portion of the magistrate reference to a magistrate judge, the parties
judge’s disposition to which specific written may consent to appeal on the record to a dis-
objection has been made in accordance with trict judge of the court and thereafter, by pe-
this Rule. The district judge may accept, re- tition only, to the court of appeals.
ject or modify the recommended decision, re-
Rule 74. Abrogated
ceive further evidence or recommit the mat-
ter to the magistrate judge with instructions. Rule 75. Abrogated
Rule 73. Magistrate Judges; Trial by
Rule 76. Abrogated
Consent and Appeal Options.
(a) Powers; Procedure. When specially des- X. District Courts and Clerks.
ignated to exercise such jurisdiction by local
rule or order of the district court and when all Rule 77. District Courts and Clerks.
parties consent thereto, a magistrate judge (a) District Courts Always Open. The district
may exercise the authority provided by Title courts shall be deemed always open for the
28, U.S.C. §636(c), and may conduct any or all purpose of filing any pleading or other proper
proceedings, including a jury or nonjury trial, paper, of issuing and returning mesne and fi-
in a civil case. A record of the proceedings nal process and of making and directing all in-
shall be made in accordance with the require- terlocutory motions, order and rules.
ments of Title 28, U.S.C. §636(c)(5). (b) Trials and Hearings; Orders in Cham-
(b) Consent. When a magistrate judge has been bers. All trials upon the merits shall be con-
designated to exercise civil trial jurisdiction, ducted in open court and so far as conven-
the clerk shall give written notice to the parties ient in a regular court room. All other acts or
of their opportunity to consent to the exercise proceedings may be done or conducted by a
by a magistrate of judge civil jurisdiction over judge in chambers, without the attendance of
the case, as authorized by Title 28, U.S.C. the clerk or other court officials and at any
§636(c). If, within the period specified by local place either within or without the district;
rule, the parties agree to a magistrate judge’s but no hearing, other than one ex parte, shall
exercise of such authority, they shall execute be conducted outside the district without
and file a joint form of consent or separate the consent of all parties affected thereby.
forms of consent setting forth such election. (c) Clerk’s Office and Orders by Clerk. The
A district judge, magistrate judge or other clerk’s office with the clerk or a deputy in at-
court official may again advise the parties of the tendance shall be open during business hours
690 APPENDIX B
on all days except Saturdays, Sundays and le- Courts with the approval of the Judicial Con-
gal holidays, but a district court may provide ference of the United States, and shall enter
by local rule or order that its clerk’s office shall therein each civil action to which these Rules
be open for specified hours on Saturdays or are made applicable. Actions shall be as-
particular legal holidays other than New Year’s signed consecutive file numbers. The file
Day, Birthday of Martin Luther King, Jr., Wash- number of each action shall be noted on the
ington’s Birthday, Memorial Day, Indepen- folio of the docket whereon the first entry of
dence Day, Labor Day, Columbus Day, Veterans the action is made. All papers filed with the
Day, Thanksgiving Day and Christmas Day. All clerk, all process issued and returns made
motions and applications in the clerk’s office thereon, all appearances, orders, verdicts
for issuing mesne process, for issuing final and judgments shall be entered chronologi-
process to enforce and execute judgments, for cally in the civil docket on the folio assigned
entering defaults or judgments by default, and to the action and shall be marked with its file
for other proceedings which do not require al- number. These entries shall be brief but shall
lowance or order of the court are grantable of show the nature of each paper filed or writ is-
course by the clerk; but the clerk’s action may sued and the substance of each order or judg-
be suspended or altered or rescinded by the ment of the court and of the returns showing
court upon cause shown. execution of process. The entry of an order or
(d) Notice of Orders or Judgments. Immedi- judgment shall show the date the entry is
ately upon the entry of an order of judgment made. When in an action trial by jury has
the clerk shall serve a notice of the entry by been properly demanded or ordered, the
mail in the manner provided for in Rule 5 upon clerk shall enter the word “jury” on the folio
each party who is not in default for failure to assigned to that action.
appear, and shall make a note in the docket of (b) Indices; Calendars. Suitable indices of the
the mailing. Any party may in addition serve a civil docket and of every civil judgment and
notice of such entry in the manner provided in order referred to in subdivision (b) of this
Rule 5 for the service of papers. Lack of notice Rule shall be kept by the clerk under the di-
of the entry by the clerk does not affect the rection of the court. There shall be prepared
time to appeal or relieve or authorize the court under the direction of the court calendars of
to relieve a party for failure to appeal within the all actions ready for trial, which shall distin-
time allowed, except as permitted in Rule 4(a) guish “jury actions” from “court actions.”
of the Federal Rules of Appellate Procedure.
Rule 80. Stenographer; Stenographic
Rule 78. Motion Day. Report or Transcript as Evidence.
Unless local conditions make it impractica- (a) Stenographer. Abrogated Dec. 27, 1946,
ble, each district court shall establish regular eff. Mar. l9, 1948.
times and places, at intervals sufficiently fre- (b) Stenographic Report or Transcript of Ev-
quent for the prompt dispatch of business, at idence. Whenever the testimony of a witness
which motions requiring notice and hearing at a trial or hearing which was stenographi-
may be heard and disposed of; but the judge cally reported is admissible in evidence at a
at any time or place and on such notice, if any, later trial, it may be proved by the transcript
as the judge considers reasonable, may make thereof duly certified by the person who re-
orders for the advancement, conduct and ported the testimony.
hearing of actions.
To expedite its business, the court may XI. General Provisions.
make provision by rule or order for the sub-
mission and determination of motions with- Rule 81. Applicability in General.
out oral hearing upon brief written state- (a) To What Proceedings Applicable.
ments of reasons in support and opposition. (1) These Rules do not apply to prize pro-
ceedings in admiralty governed by Title 10,
Rule 79. Books and Records Kept by the U.S.C. §7651-7681. They do not apply to pro-
Clerk and Entries Therein. ceedings in bankruptcy or proceedings in
(a) Civil Docket. The clerk shall keep a book copyright under Title 17, U.S.C., except insofar
known as a “Civil Docket” of such form and as they may be made applicable thereto by
style as may be prescribed by the Director of rules promulgated by the Supreme Court of the
the Administrative Office of the United States United States. They do not apply to mental
APPENDIX B 691
health proceedings in the United States District ered by those statutes, the practice in the dis-
Court for the District of Columbia. trict courts shall conform to these Rules so
(2) These Rules are applicable to pro- far as applicable.
ceedings for admission to citizenship, habeas (6) These Rules apply to proceedings for
corpus and quo warranto, to the extent that enforcement or review of compensation or-
the practice in such proceedings is not set ders under the Longshoremen’s and Harbor
forth in statutes of the United States and has Workers’ Compensation Act, Act of March 4,
heretofore conformed to the practice in civil 1927, c. 509, §§18, 21 (44 Stat. 1434, 1436), as
actions. The writ of habeas corpus or order to amended, U.S.C., Title 33, §§918, 921, except
show cause, shall be directed to the person to the extent that matters of procedure are
having custody of the person detained. It provided for in that Act. The provisions for
shall be returned within 3 days unless for service by publication and for answer in pro-
good cause shown additional time is allowed ceedings to cancel certificates of citizenship
which in cases brought under 28 U.S.C. §2254 under the Act of June 27, 1952, c. 477, Title III,
shall not exceed 40 days, and in all other c. §340 (66 Stat. 260), U.S.C., Title 8, §1451, re-
cases shall not exceed 20 days. main in effect.
(3) In proceedings under Title 9, U.S.C., re- (b) Scire Facias and Mandamus. The writs of
lating to arbitration, or under the Act of May scire facias and mandamus are abolished. Re-
20, 1926, ch. 347, §9 (44 stat. 585), U.S.C., Title lief heretofore available by mandamus or
45, §159, relating to board of arbitration of scire facias may be obtained by appropriate
railway labor disputes, these Rules apply action or by appropriate motion under the
only to the extent that matters of procedure practice prescribed in these Rules.
are not provided for in those statutes. These (c) Removed Actions. These Rules apply to
Rules apply to proceedings to compel the giv- civil actions removed to the United States dis-
ing of testimony or production of documents trict courts from the state courts and govern
in accordance with a subpoena issued by an procedure after removal. Repleading is not
officer or agency of the United States under necessary unless the court so orders. In a re-
any statute of the United States except as oth- moved action in which the defendant has not
erwise provided by statute or by rules of the answered, the defendant shall answer or pres-
district court or by order of the court in the ent the other defenses or objections available
proceedings. under these Rules within 20 days after the re-
(4) These Rules do not alter the method ceipt through service or otherwise of a copy
prescribed by the Act of February, 18, 1922, c. of the initial pleading setting forth the claim
57, §2 (42 Stat. 388), U.S.C. Title 7, §292; or by for relief upon which the action or proceeding
the Act of June 10, 1930, c. 436, §7 (46 Stat. is based, or within 20 days after the service of
534), as amended, U.S.C., Title 7, §499g(c), for summons upon such initial pleading, then
instituting proceedings in the United States filed, or within 5 days after the filing of the pe-
district courts to review orders of the Secre- tition for removal, whichever period is
tary of Agriculture; or prescribed by the Act longest. If at the time of removal all necessary
of June 25, 1934, c. 742, §2 (48 Stat. 1214), pleadings have been served, a party entitled
U.S.C., Title 15, §522, for instituting proceed- to trial by jury under Rule 38 shall be ac-
ings to review orders of the Secretary of the corded it, if the party’s demand therefor is
Interior; or prescribed by the Act of February served within 10 days after the petition for re-
22, 1935, c. 18, §5 (49 Stat. 31), U.S.C., Title 15, moval is filed if the party is the petitioner, or if
§715d(c), as extended, for instituting pro- not the petitioner within 10 days after service
ceedings to review orders of petroleum con- on the party of the notice of filing the petition.
trol boards; but the conduct of such proceed- A party who, prior to removal, has made an ex-
ings in the district courts shall be made to press demand for trial by jury in accordance
conform to these Rules as far as applicable. with state law, need not make a demand after
(5) These Rules do not alter the practice removal. If state law applicable in the court
in the United States district courts prescribed from which the case is removed does not re-
in the Act of July 5, 1935, c. 372, §§9 and 10 (49 quire the parties to make express demands in
Stat. 453), as amended, U.S.C., Title 29, §§159 order to claim trial by jury, they need not
and 160, for beginning and conducting pro- make demands after removal unless the court
ceedings to enforce orders of the National La- directs that they do so within a specified time
bor Relations Board; and in respects not cov- if they desire to claim trial by jury. The court
692 APPENDIX B
may make this direction on its own motion amended by the court or abrogated by the ju-
and shall do so as a matter of course at the re- dicial council of the circuit. Copies of rules
quest of any party. The failure of a party to and amendments shall, upon their promulga-
make demand as directed constitutes a waiver tion, be furnished to the judicial council and
by that party of trial by jury. the Administrative Office of the United States
(d) District of Columbia; Courts and Judges. Courts and be made available to the public.
Abrogated Dec. 29, 1948, eff. Oct. 20, 1949. (2) A local rule imposing a requirement of
(e) Law Applicable. Whenever in these Rules form shall not be enforced in a manner that
the law of the state in which the district court causes a party to lose rights because of a non-
is held is made applicable, the law applied in willful failure to comply with the requirement.
the District of Columbia governs proceedings (b) Procedures When There Is No Control-
in the United States District Court for the Dis- ling Law. A judge may regulate practice in any
trict of Columbia. When the word “state” is manner consistent with federal law, rules
used, it includes, if appropriate, the District of adopted under 28 U.S.C. §§2072 and 2075, and
Columbia. When the term “statute of the local rules of the district. No sanction or
United States” is used, it includes, so far as other disadvantage may be imposed for non-
concerns proceedings in the United States compliance with any requirement not in fed-
District Court for the District of Columbia, eral law, federal rules, or the local district
any Act of Congress locally applicable to and rules unless the alleged violator has been fur-
in force in the District of Columbia. When the nished in the particular case with actual no-
law of a state is referred to, the word “law” in- tice of the requirement.
cludes the statutes of that state and the state
judicial decisions construing them. Rule 84. Forms.
( f ) References to Officer of the United The forms contained in the Appendix of
States. Under any Rule in which reference is Forms are sufficient under the Rules and are
made to an officer or agency of the United intended to indicate the simplicity and
States, the term “officer” includes a district brevity of statements which the Rules con-
director of internal revenue, a former district template.
director or collector of internal revenue or
the personal representative of a deceased dis- Rule 85. Title.
trict director or collector of internal revenue. These Rules may be known and cited as the
Federal Rules of Civil Procedure.
Rule 82. Jurisdiction and Venue Unaffected.
These Rules shall not be construed to extend Rule 86. Effective Date.
or limit the jurisdiction of the United States (a) Effective Date. These Rules will take effect
district courts or the venue of actions therein. on the day which is 3 months subsequent to
An admiralty or maritime claim within the the adjournment of the second regular ses-
meaning of Rule 9(h) shall not be treated as a sion of the 75th Congress, but if that day is
civil action for the purposes of Title 28, U.S.C., prior to September 1, 1938, then these Rules
§§1391-93. will take effect on September 1, 1938. They
govern all proceedings in actions brought af-
Rule 83. Rules by District Courts; Judge’s ter they take effect and also all further pro-
Directives. ceedings in actions then pending, except to
(a) Local Rules. the extent that in the opinion of the court
(1) Each district court, acting by a major- their application in a particular action pend-
ity of its district judges, may, after giving ap- ing when the Rules take effect would not be
propriate public notice and an opportunity feasible or would work injustice, in which
for comment, make and amend rules govern- event the former procedure applies.
ing its practice. A local rule shall be consis- (b) Effective Date of Amendments. The
tent with—but not duplicative of—Acts of amendments adopted by the Supreme Court
Congress and rules adopted under 28 U.S.C. on December 27, 1946, and transmitted to the
§§2072 and 2075, and shall conform to any Attorney General on January 2, 1947, shall
uniform numbering system prescribed by the take effect on the day which is three months
Judicial Conference of the United States. A lo- subsequent to the adjournment of the first
cal rule takes effect on the date specified by regular session of the 80th Congress, but, if
the district court and remains in effect unless that day is prior to September 1, 1947, then
APPENDIX B 693
these amendments shall take effect on Sep- except to the extent that in the opinion of the
tember 1, 1947. They govern all proceedings court their application in a particular action
in actions brought after they take effect and pending when the amendments take effect
also all further proceedings in actions then would not be feasible or would work injustice,
pending, except to the extent that in the opin- in which event the former procedure applies.
ion of the court their application in a particu- (e) Effective Date of Amendments. The
lar action pending when the amendments amendments adopted by the Supreme Court
take effect would not be feasible or would on January 21, 1963, and transmitted to the
work injustice, in which event the former Congress on January 21, 1963, shall take ef-
procedure applies. fect on July 1, 1963. They govern all proceed-
(c) Effective Date of Amendments. The ings in actions brought after they take effect
amendments adopted by the Supreme Court and also all further proceedings in actions
on December 29, 1948, and transmitted to the then pending, except to the extent that in the
Attorney General on December 31, 1948, shall opinion of the court their application in a par-
take effect on the day following the adjourn- ticular action pending when the amendments
ment of the first regular session of the 81st take effect would not be feasible or would
Congress. work injustice, in which event the former pro-
(d) Effective Date of Amendments. The cedure applies. [The practice of amending
amendments adopted by the Supreme Court Rule 86 to show effective times of amend-
on April 17, 1961, and transmitted to the Con- ments was discontinued after the 1963
gress on April 18, 1961, shall take effect on July amendments. Adoption and effective dates of
19, 1961. They govern all proceedings in ac- subsequent amendments are shown after the
tions brought after they take effect and also all relevant change in the Rule.]
further proceedings in actions then pending,
694 APPENDIX B
Appendix of Forms
(See Rule 84) 24. Request for Production of Documents, etc.,

under Rule 34.
25. Request for Admission Under Rule 36.
Table of Forms 26. Allegation of Reason for Omitting Party.
27. Notice of Appeal to Court of Appeals Under
Form
Rule 73(b). Abrogated Dec. 4, 1967, effective
1. Summons. July 1, 1968.
1-A. Notice of Lawsuit and Request for Waiver of 28. Notice: Condemnation.
Summons. 29. Complaint: Condemnation.
1-B. Waiver of Service of Summons. 30. Suggestion of Death Upon the Record Under
2. Allegation of Jurisdiction. Rule 25(a)(1).
3. Complaint on a Promissory Note. 31. Judgment on Jury Verdict.
4. Complaint on an Account. 32. Judgment on Decision by the Court.
5. Complaint for Goods Sold and Delivered. 33. Notice of Availability of Magistrate Judge to
6. Complaint for Money Lent. Exercise Jurisdiction and Appeal Option
7. Complaint for Money Paid by Mistake. 34. Consent to Exercise of Jurisdiction by a
8. Complaint for Money Had and Received. United States Magistrate Judge.
9. Complaint for Negligence. 34-A. Order of Reference
10. Complaint for Negligence Where Plaintiff Is 35. Report of Parties’ Planning Meeting
Unable to Determine Definitely Whether the
Person Responsible Is C.D. or E. F. or Whether Appendix of Forms
Both Are Responsible and Where His Introductory Statement
Evidence May Justify a Finding of Wilfulness 1. The following forms are intended for illustration
or of Recklessness or of Negligence. only. They are limited in number. No attempt is
11. Complaint for Conversion. made to furnish a manual of forms. Each form
12. Complaint for Specific Performance of assumes the action to be brought in the
Contract to Convey Land. Southern District of New York. If the district in
13. Complaint on Claim for Debt and to Set Aside which an action is brought has divisions, the
Fraudulent Conveyance Under Rule 18(b). division should be indicated in the caption.
14. Complaint for Negligence Under Federal 2. Except where otherwise indicated, each
Employers’ Liability Act. pleading, motion and other paper should have
15. Complaint for Damages Under Merchant a caption similar to that of the summons, with
Marine Act. the designation of the particular paper
16. Complaint for Infringement of Patent. substituted for the word “Summons”. In the
17. Complaint for Infringement of Copyright and caption of the summons and in the caption of
Unfair Competition. the complaint all parties must be named but in
18. Complaint for Interpleader and Declaratory other pleadings and papers, it is sufficient to
Relief. state the name of the first party on either side,
18-A. Notice and Acknowledgment for Service by with an appropriate indication of other
Mail. parties. See Rules 4(b), 7(b)(2) and 10(a).
19. Motion to Dismiss, Presenting Defenses of 3. In Form 3 and the forms following, the words,
Failure to State a Claim, of Lack of Service of “Allegation of jurisdiction”, are used to
Process, of Improper Venue, and of Lack of indicate the appropriate allegation in Form 2.
Jurisdiction Under Rule 12(b). 4. Each pleading, motion and other paper is to be
20. Answer Presenting Defenses under Rule 12(b). signed in his individual name by at least one
21. Answer to Complaint Set Forth in Form 8, attorney of record (Rule 11). The attorney’s
With Counterclaim for Interpleader. name is to be followed by his address as
22-A. Summons and Complaint Against Third-Party indicated in Form 3. In forms following Form 3
Defendant. the signature and address are not indicated.
22-B. Motion to Bring in Third-Party Defendant. 5. If a party is not represented by an attorney,
23. Motion to Intervene as a Defendant Under the signature and address of the party are
Rule 24. required in place of those of the attorney.
APPENDIX B 695
Sample Caption of Case
FOR THE DISTRICT OF NEW YORK
___________________, )
)
Plaintiff, ) Civil Action, File No. _______
)
v. ) (TITLE OF PLEADING, MOTION, ETC.)
)
___________________, )
)
Defendant. )
_________________________ )
Sample Mailing Certificate (Placed at end of Pleading, Motion, etc.)
ORIGINAL and COPY of

the foregoing delivered/
mailed this ______ day of
_______________, 20____, for filing
to:
Clerk of the United States

District Court
District of Arizona
(Address of Court)
COPY of the foregoing

delivered/mailed this _______
day of _______________, 20____, to:
Attorney for Plaintiff

(Address)
(Designation of Attorney)
________________________________
Signature of Attorney
Mailing Pleading
696 APPENDIX B
Form 1. Summons
CAPTION OF CASE
SUMMONS
To the above-named Defendant:
You are hereby summoned and required to serve upon ____________, plaintiff’s attorney, whose
address is _________________________, an answer to the complaint which is herewith served upon you,
within 201 days after service of this summons upon you, exclusive of the day of service. If you fail to do
so, judgment by default will be taken against you for the relief demanded in the complaint.
___________________________________
Clerk of Court
[Seal of the U.S. District Court]

Dated ____________________________________
(This summons is issued pursuant

to Rule 4 of the Federal Rules of
Civil Procedure)
1.
If the United States or an officer or agency thereof is a defendant, the time to be inserted as to it is 60 days.
APPENDIX B 697
Form 1-A. Notice of Lawsuit and Request for Waiver of Summons
TO: _____________________ (A) _____________________

[as ___________________ (B) ___________________ of ___________________ (C) ____________________]
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint is attached to this notice. It has been filed in the United States District Court for the
____________ (D) ____________ and has been assigned docket number ____________ (E) ____________.
This is not a formal summons or notification from the court, but rather my request that you sign and
return the enclosed waiver of service in order to save the cost of serving you with a judicial summons
and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of
the waiver within ____________ (F) ____________ days after the date designated below as the date on
which this Notice and Request is sent. I enclose a stamped and addressed envelope (or other means of
cost-free return) for your use. An extra copy of the waiver is also attached for your records.
If you comply with this request and return the signed waiver, it will be filed with the court and no
summons will be served on you. The action will then proceed as if you had been served on the date
the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from
the date designated below as the date on which this notice is sent (or before 90 days from that date if
your address is not in any judicial district of the United States).
If you do not return the signed waiver within the time indicated, I will take appropriate steps to
effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to
the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you
are addressed) to pay the full costs of such service. In that conclusion, please read the statement
concerning the duty of parties to waive the service of the summons, which is set forth on the reverse
side (or at the foot) of the waiver form.
I affirm that this request is being sent to you on behalf of the plaintiff, this _____ day of _____, _____.
Signature of Plaintiff’s Attorney

or Unrepresented Plaintiff
698 APPENDIX B
Form 1-B. Waiver of Service of Summons
TO: ______________________________ (name of plaintiff’s attorney or unrepresented

plaintiff) ______________________________
I acknowledge receipt of your request that I waive service of a summons in the action of
____________ (caption of action) ____________, which is case number ____________ (docket number)
____________ in the United States District Court for the ____________ (district) ____________. I have also
received a copy of the complaint in the action, two copies of this instrument, and a means by which I
can return the signed waiver to you without cost to me.
I agree to save the cost of service of a summons and an additional copy of the complaint in this
lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial
process in the manner provided by Rule 4.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the court except for objections based on a defect in the summons or in
the service of the summons.
I understand that a judgment may be entered against me (or the party on whose behalf I am
acting) if an answer or motion under Rule 12 is not served upon you within 60 days after ____________
(date request was sent) ____________, or within 90 days after that date if the request was sent outside
the United States.
Date/Signature
Printed/typed name:
[as ] ______________________________
[of ] ______________________________
To be printed on reverse side of the waiver form or set forth at the foot of the form:
Duty to Avoid Unnecessary Costs of Service of Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain parties to cooperate in saving
unnecessary costs of service of the summons and complaint. A defendant located in the United States
to waive service of a summons, fails to do so will be required to bear the cost of such service unless
good cause be shown for its failure to sign and return the waiver.
It is not good cause for a failure to waive service that a party believes that the complaint is
unfounded, or that the action has been brought in an improper place or in a court that lacks
jurisdiction over the subject matter of the action or over its person or property. A party who waives
service of the summons retains all defenses and objections (except any relating to the summons or to
the service of the summons), and may later object to the jurisdiction of the court or to the place where
the action has been brought.
A defendant who waives service must within the time specified on the waiver form serve on the
plaintiff’s attorney (or unrepresented plaintiff) a response to the complaint must also file a signed copy of
the response with the court. If the answer or motion is not served within this time, a default judgment
may be taken against that defendant. By waiving service, a defendant is allowed more time to answer
than if the summons had been actually served when the request for waiver of service was received.
APPENDIX B 699
Form 2. Allegation of Jurisdiction
(a) Jurisdiction founded on diversity of citizenship and amount.
Plaintiff is a [citizen of the State of Connecticut]2 [corporation incorporated under the laws of the
State of Connecticut having its principal place of business in the State of Connecticut] and defendant is
a corporation incorporated under the laws of the State of New York having its principal place of
business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of
interest and costs, the sum of ten thousand dollars.
(b) Jurisdiction founded under [the Constitution of the United States, Article _____, §_____]; [the
_____ Amendment to the Constitution of the United States, §_____]; [the Act of _____, _____ Stat.
_____; U.S.C., Title _____, §_____]; [the Treaty of the United States (here describe the treaty)],3 as
hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the
sum of ten thousand dollars.
(c) Jurisdiction founded on the existence of a question arising under particular statutes.
The action arises under the Act of _____, _____ Stat. _____; U.S.C., Title _____, §_____, as
hereinafter more fully appears.
(d) Jurisdiction founded on the admiralty or maritime character of the claim. This is a case of
admiralty and maritime jurisdiction, as hereinafter more fully appears. [If the pleader wishes to invoke
the distinctively maritime procedures referred to in Rule 9(h), add the following or its substantial
equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).]
2.
Form for natural person.
3.
Use the appropriate phrase or phrases. The general allegation of the existence of a Federal question is
ineffective unless the matters constituting the claim for relief as set forth in the complaint raise a Federal
question.
Form 3. Complaint on a Promissory Note
CAPTION OF CASE
COMPLAINT ON A
PROMISSORY NOTE
1. Allegation of jurisdiction.
2. Defendant on or about ___________, 20____, executed and delivered to plaintiff a promissory

note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto
annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on ___________,
19____ the sum of _______ dollars with interest thereon at the rate of _____ percent per annum].
3. Defendant owes plaintiff the amount of said note and interest.
Wherefore plaintiff demands judgment against defendant for the sum of _______ dollars, interest and
costs.
Signed: _______________________________
Address ________________________
700 APPENDIX B
Form 4. Complaint on an Account
CAPTION OF CASE
COMPLAINT ON AN
ACCOUNT
2. Defendant owes plaintiff _________ dollars according to the account hereto annexed as
Exhibit A.
Wherefore (etc. as in Form 3).
Form 5. Complaint for Goods Sold and Delivered
CAPTION OF CASE
COMPLAINT FOR GOODS

SOLD AND DELIVERED
2. Defendant owes plaintiff _______ dollars for goods sold and delivered by plaintiff to
defendant between ___________, 20____ and ___________, 20____.
Form 6. Complaint for Money Lent
CAPTION OF CASE
COMPLAINT FOR MONEY

LENT
2. Defendant owes plaintiff _______ dollars for money lent by plaintiff to defendant on
___________, 20____.

APPENDIX B 701
Form 7. Complaint for Money Paid by Mistake
CAPTION OF CASE
COMPLAINT FOR MONEY

PAID BY MISTAKE
2. Defendant owes plaintiff _______ dollars for money paid by plaintiff to defendant by mistake
on ___________, 20____, under the following circumstances: [here state the circumstances with
particularity - see Rule 9(b)].
Wherefore (etc., as in Form 3).
Form 8. Complaint for Money Had and Received
CAPTION OF CASE
COMPLAINT FOR MONEY

HAD AND RECEIVED
2. Defendant owes plaintiff _______ dollars for money had and received from one _______ on
___________, 20____, to be paid by defendant to plaintiff.
Wherefore (etc., as in Form 3).
Form 9. Complaint for Negligence
CAPTION OF CASE
COMPLAINT FOR
NEGLIGENCE
2. On ___________, 20____, in a public highway called ______________ in ______________,

______________, defendant negligently drove a motor vehicle against plaintiff who was then crossing
said highway.
3. As a result, plaintiff was thrown down and had his leg broken and was otherwise injured, was
prevented from transacting business, suffered great pain of body and mind, and incurred expenses for
medical attention and hospitalization in the sum of _______ dollars.
Wherefore plaintiff demands judgment against defendant in the sum of _______ dollars and costs.
702 APPENDIX B
Form 10. Complaint for Negligence Where Plaintiff Is Unable to Determine Definitely Whether
the Person Responsible Is C.D. or E. F. or Whether Both Are Responsible and Where His Evidence
May Justify a Finding of Wilfulness or of Recklessness or of Negligence
CAPTION OF CASE
COMPLAINT
2. On ___________, 20____, in a public highway called _______________ in _______________,

_______________, defendant C. D. or defendant E. F., or both defendants C. D. and E. F. wilfully or
recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then
crossing said highway.
3. As a result, plaintiff was thrown down and had his leg broken and was otherwise injured, was
prevented from transacting his business, suffered great pain of body and mind, and incurred expenses
for medical attention and hospitalization in the sum of _______ dollars.
Wherefore plaintiff demands judgment against C. D. or against E. F., or against both in the sum of
_______ dollars and costs.
Form 11. Complaint for Conversion
CAPTION OF CASE
COMPLAINT FOR
CONVERSION
2. On or about ___________, 20____, defendant converted to his own use _______________ of

the _______________ Company (here insert brief identification as by number and issue) of the value of
_______ dollars, the property of plaintiff.
Wherefore plaintiff demands judgment against defendant in the sum of _______ dollars, interest and
costs.
APPENDIX B 703
Form 12. Complaint for Specific Performance of Contract to Convey Land
CAPTION OF CASE
COMPLAINT FOR SPECIFIC

PERFORMANCE OF CONTRACT
TO CONVEY LAND
2. On or about __________, 20____, plaintiff and defendant entered into an agreement in

writing a copy of which is hereto annexed as Exhibit A.
3. In accord with the provisions of said agreement, plaintiff tendered to defendant the purchase
price and requested a conveyance of the land, but defendant refused to accept the tender and refused
to make the conveyance.
4. Plaintiff now offers to pay the purchase price.
Wherefore plaintiff demands (1) that defendant be required specifically to perform said agreement, (2)
damages in the sum of _______ dollars, and (3) that if specific performance is not granted to plaintiff,
that plaintiff has judgment against defendant in the sum of _______ dollars.
Form 13. Complaint on Claim for Debt and to Set Aside Fraudulent Conveyance Under Rule 18(b)
CAPTION OF CASE
COMPLAINT ON CLAIM
FOR DEBT AND TO SET
ASIDE FRAUDULENT
CONVEYANCE UNDER
RULE 18(b)
2. Defendant C. D. on or about __________, 20____ executed and delivered to plaintiff a

promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of
which is hereto annexed as Exhibit A]; [whereby defendant C. D. promised to pay to plaintiff or order
on __________, 20____ the sum of _______ Dollars with interest thereon at the rate of ____ percent per
annum].
3. Defendant C. D. owes to plaintiff the amount of said note and interest.
4. Defendant C. D. on or about __________, 20____ conveyed all of his property, real and
personal [or specify and describe] to defendant E. F. for the purpose of defrauding plaintiff and
hindering and delaying the collection of the indebtedness evidenced by the note above referred to.
Wherefore plaintiff demands:
(1) That plaintiff have judgment against defendant C. D. for _______ dollars and interest; (2) that
the aforesaid conveyance to defendant E. F. be declared void and the judgment herein be declared a
lien on said property; (3) that plaintiff have judgment against the defendants for costs.
704 APPENDIX B
Form 14. Complaint for Negligence Under Federal Employers’ Liability Act
CAPTION OF CASE
COMPLAINT FOR NEGLI-

GENCE UNDER FEDERAL
EMPLOYERS’ LIABILITY ACT
2. During all the times herein mentioned, defendant owned and operated in interstate
commerce a railroad which passed through a tunnel located at _______________ and known as Tunnel
No. _______.
3. On or about __________, 20____, defendant was repairing and enlarging the tunnel in order
to protect interstate trains and passengers and freight from injury and in order to make the tunnel
more conveniently usable for interstate commerce.
4. In the course of thus repairing and enlarging the tunnel on said day defendant employed
plaintiff as one of its workmen, and negligently put plaintiff to work in a portion of the tunnel which
defendant had left unprotected and unsupported.
5. By reason of defendant’s negligence in thus putting plaintiff to work in that portion of the
tunnel, plaintiff was, while so working pursuant to defendant’s orders, struck and crushed by a rock,
which fell from the unsupported portion of the tunnel, and was (here describe plaintiff’s injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually
earning _______ dollars per day. By these injuries he has been made incapable of any gainful activity,
has suffered great physical and mental pain, and has incurred expenses in the amount of _____ dollars
for medicine, medical attendance and hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of _______ dollars and costs.
APPENDIX B 705
Form 15. Complaint for Damages Under Merchant Marine Act
CAPTION OF CASE
COMPLAINT FOR DAMAGES

UNDER MERCHANT MARINE
ACT
1. Allegation of jurisdiction. [If the pleader wishes to invoke the distinctively maritime
procedures referred to in Rule 9(h), add the following or its substantial equivalent: This is an admiralty
or maritime claim within the meaning of Rule 9(h).]
2. During all the times herein mentioned defendant was the owner of the steamship
_______________ and used it in the transportation of freight for hire by water in interstate and foreign
commerce.
3. During the first part of (month and year) at _______________ plaintiff entered the employ of
defendant as an able seaman on said steamship under seamen’s articles of customary form for a voyage
from _______________ ports to the Orient and return at a wage of _______ dollars per month and
found, which is equal to a wage of _____ dollars per month as a shore worker.
4. On __________, 20____, said steamship was about ______ day out of the port of
_______________ and was being navigated by the master and crew on the return voyage of
_______________ ports. (Here describe weather conditions and the condition of the ship and state as in
an ordinary complaint for personal injuries the negligent conduct of defendant).
5. By reason of defendant’s negligence in this (brief statement of defendant’s negligent conduct)

and the unseaworthiness of said steamship, plaintiff was (here describe plaintiff’s injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually
earning _______ dollars per day. By these injuries he has been made incapable of any gainful activity;
has suffered great physical and mental pain and has incurred expenses in the amount of _______
dollars for medicine, medical attendance and hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of _______ dollars.
706 APPENDIX B
Form 16. Complaint for Infringement of Patent
CAPTION OF CASE
COMPLAINT FOR
INFRINGEMENT OF PATENT
2. On __________, 20____, United States Letters Patent No. ______ were duly and legally issued
to plaintiff for an invention in an (here insert description of invention); and since that date plaintiff has
been and still is the owner of those Letters Patent.
3. Defendant has for a long time past been and still is infringing those Letters Patent by making,
selling and using _______________ embodying the patented invention, and will continue to do so
unless enjoined by this court.
4. Plaintiff has placed the required statutory notice on all _______________ manufactured and
sold by him under said Letters Patent and has given written notice to defendant of his said
infringement.
Wherefore plaintiff demands a preliminary and final injunction against continued infringement, an
accounting for damages and an assessment of interest and costs against defendant.
Form 17. Complaint for Infringement of Copyright and Unfair Competition
CAPTION OF CASE
COMPLAINT FOR
INFRINGEMENT OF
COPYRIGHT AND UNFAIR
COMPETITION
2. Prior to __________, 20____, plaintiff, who then was and ever since has been a citizen of the
United States, created and wrote an original book, entitled _____.
3. This book contains a large amount of material wholly original with plaintiff and is
copyrightable subject matter under the laws of the United States.
4. Between __________, 20____, and __________, 20____, plaintiff complied in all respects with
the Act of (give citation) and all other laws governing copyright, and secured the exclusive rights and
privileges in and to the copyright of said book, and received from the Register of Copyrights a
certificate of registration, dated and identified as follows: “_______, 20____, Class _______, No. _____”.
5. Since __________, 20____, said book has been published by plaintiff and all copies of it made
by plaintiff or under his authority or license have been printed, bound and published in strict
conformity with the provisions of the Act of _______________ and all other laws governing copyright.
APPENDIX B 707
Form 17. Complaint for Infringement of Copyright and Unfair Competition, continued
6. Since __________, 20____, plaintiff has been and still is the sole proprietor of all rights, title
and interest in and to the copyright of said book.
7. After __________, 20____, defendant infringed said copyright by publishing and placing upon
the market a book entitled _______________, which was copied largely from plaintiff’s copyrighted
book, entitled _______________.
8. A copy of plaintiff’s copyrighted book is hereto attached as Exhibit “1”; and a copy of
defendant’s infringing book is hereto attached as Exhibit “2”;
9. Plaintiff has notified defendant that defendant has infringed the copyright of plaintiff, and
defendant has continued to infringe the copyright.
10. After __________, 20____, and continuously since about __________, 20____, defendant has
been publishing, selling and otherwise marketing the book entitled _______________, and has thereby
been engaging in unfair trade practices and unfair competition against plaintiff to plaintiff’s irreparable
damage.
Wherefore plaintiff demands:
(1) That defendant, his agents and servants be enjoined during the pendency of this action and
permanently from infringing said copyright of said plaintiff in any manner, and from publishing, selling,
marketing or otherwise disposing of any copies of the book entitled _______________.
(2) That defendant be required to pay to plaintiff such damages as plaintiff has sustained in
consequence of defendant’s infringement of said copyright and said unfair trade practices and unfair
competition and to account for:
(a) all gains, profits and advantages derived by defendant by said trade practices and unfair
competition and
(b) all gains, profits and advantages derived by defendant by his infringement of plaintiff’s
copyright or such damages as to the court shall appear proper within the provisions of the copyright
statutes, but not less than _______ dollars.
(3) That defendant be required to deliver up to be impounded during the pendency of this action
all copies of said book entitled _______________ in his possession or under his control and to deliver up
for destruction all infringing copies and all plates, molds and other matter for making such infringing
copies.
(4) That defendant pay to plaintiff the costs of this action and reasonable attorney’s fees to be
allowed to the plaintiff by the court.
(5) That plaintiff have such other and further relief as is just.
continued
708 APPENDIX B
Form 18. Complaint for Interpleader and Declaratory Relief
CAPTION OF CASE
COMPLAINT FOR INTER-

PLEADER AND DECLARA-
TORY RELIEF
2. On or about __________, 20____, plaintiff issued to _______________ a policy of life insurance

whereby plaintiff promised to pay to ________________ as beneficiary the sum of _______ dollars upon
the death of _______________. The policy required the payment by _____ of a stipulated premium on
__________, 20____, and annually thereafter as a condition precedent to its continuance in force.
3. No part of the premium due _____, 20__, was ever paid and the policy ceased to have any
force or effect on __________, 20____.
4. Thereafter, on __________, 20____, _______________ and _______________ died as the result

of a collision between a locomotive and the automobile in which _______________ and
_______________ were riding.
5. Defendant _______________ is the duly appointed and acting executor of the will of
_______________; defendant ______________ is the duly appointed and acting executor of the will of
_______________; defendant _____________ claims to have been duly designated as beneficiary of said
policy in place of ______________.
6. Each of defendants, ______________, ______________ and ______________ is claiming that the

above-mentioned policy was in full force and effect at the time of the death of ______________; each of
them is claiming to be the only person entitled to receive payment of the amount of the policy and has
made demand for payment thereof.
7. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which
defendant is entitled to be paid the amount of the policy, if it was in force at the death of ___________.
Wherefore Plaintiff demands that the court adjudge:
(1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or
any part thereof.
(2) That each of the defendants be restrained from instituting any action against plaintiff for the
recovery of the amount of said policy or any part thereof.
(3) That, if the court shall determine that said policy was in force at the death of ______________,
the defendants be required to interplead and settle between themselves their rights to the money due
under said policy, and that plaintiff be discharged from all liability in the premises except to the person
whom the court shall adjudge entitled to the amount of said policy.
(4) That plaintiff recover its costs.

APPENDIX B 709
Form 18-A. Notice and Acknowledgment for Service by Mail
CAPTION OF CASE
NOTICE AND ACKNOW-

LEDGMENT OF RECEIPT
OF SUMMONS AND
COMPLAINT
Notice
To: (Insert the name and address of the person to be served.)
The enclosed summons and complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal
Rules of Civil Procedure.
You must complete the acknowledgment part of this form and return one copy of the completed
form to the sender within 20 days.
You must sign and date the acknowledgment. If you are served on behalf of a corporation,
unincorporated association (including a partnership), or other entity, you must indicate under your
signature your relationship to that entity. If you are served on behalf of another person and you are
authorized to receive process, you must indicate under your signature your authority.
If you do not complete and return the form to the sender within 20 days, you (or the party on
whose behalf you are being served) may be required to pay any expenses incurred in serving a
summons and complaint in any other manner permitted by law.
If you do complete and return this form, you (or the party on whose behalf you are being served)
must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken
against you for the relief demanded in the complaint.
I declare, under penalty of perjury, that this Notice and Acknowledgment of Receipt of Summons
and Complaint will have been mailed on (insert date).
_________________________________________
Signature
_________________________________________
Date of Signature
Acknowledgment of Receipt of Summons and Complaint
I declare, under penalty of perjury, that I received a copy of the summons and complaint in the
above-captioned matter at (insert address).
_________________________________________
Signature
_________________________________________
Relationship to Entity/Authority to
Receive Service of Process
_________________________________________
Date of Signature
710 APPENDIX B
Form 19. Motion to Dismiss, Presenting Defenses of Failure to State a Claim, of Lack of Service of
Process, of Improper Venue and of Lack of Jurisdiction Under Rule 12(b)
CAPTION OF CASE
MOTION TO DISMISS
The defendant moves the court as follows:
1. To dismiss the action because the complaint fails to state a claim against defendant upon
which relief can be granted.
2. To dismiss the action or in lieu thereof to quash the return of service of summons on the
grounds (a) that the defendant is a corporation organized under the laws of _______________ and was
not and is not subject to service of process within the _______________ District of _______________,
and (b) that the defendant has not been properly served with process in this action, all of which more
clearly appears in the affidavits of _______________ and _______________ hereto annexed as Exhibits A
and B, respectively.
3. To dismiss the action on the ground that it is in the wrong district because (a) the
jurisdiction of this court is invoked solely on the ground that the action arises under the Constitution
and laws of the United States and (b) the defendant is a corporation incorporated under the laws of
the State of _______________ and is not licensed to do or doing business in the _______________
District of _______________, all of which more clearly appears in the affidavits of _______________ and
_______________ hereto annexed as Exhibits C and D, respectively.
4. To dismiss the action on the ground that the court lacks jurisdiction because the amount
actually in controversy is less than _______ dollars.
_________________________________________
Attorney for Defendant
_________________________________________
Address of Attorney for Defendant
Notice of Motion
To: _______________________________________________
Please take notice that the undersigned will bring the above motion on for hearing before this
Court at Room ______________, United States Courthouse, _______________, _______________, on the
______ day of __________, 20____, at _______ o’clock ___. M., in the forenoon of that day or as soon
thereafter as counsel can be heard.
_________________________________________
Signature of Attorney for Defendant
Address: _________________________________
APPENDIX B 711
Form 20. Answer Presenting Defenses under Rule 12(b)
CAPTION OF CASE
ANSWER PRESENTING
DEFENSES UNDER RULE
12(b)
First Defense
The complaint fails to state a claim against defendant upon which relief can be granted.
Second Defense
If defendant is indebted to plaintiff for the goods mentioned in the complaint, he is indebted to
them jointly with ______________. ______________ is alive; is a citizen of the State of _______________
and a resident of this district, is subject to the jurisdiction of this court, as to both service of process
and venue; can be made a party without depriving this court of jurisdiction of the present parties, and
has not been made a party.
Third Defense
Defendant admits the allegation contained in paragraphs ____ and ____ of the complaint; alleges
that he is without knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraph ____ of the complaint, and denies each and every other allegation contained in
the complaint.
Fourth Defense
The right of action set forth in the complaint did not accrue within _____ years next before the
commencement of this action.
Counterclaim
(Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a
complaint. No statement of the grounds on which the court’s jurisdiction depends need be made
unless the counterclaim requires independent grounds of jurisdiction.)
Cross-Claim Against Defendant _____________
(Here set forth the claim constituting a cross-claim against defendant _____________ in the manner
in which a claim is pleaded in a complaint. The statement of grounds upon which the court’s
jurisdiction depends need not be made unless the cross-claim requires independent grounds of
jurisdiction.)
712 APPENDIX B
Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaim for Interpleader
CAPTION OF CASE
ANSWER TO COMPLAINT;
COUNTERCLAIM IN INTER-
PLEADER
Defense
Defendant admits the allegations stated in paragraph ____ of the complaint; and denies the allegations
stated in paragraph ____ to the extent set forth in the counterclaim herein.
Counterclaim for Interpleader
1. Defendant received the sum of _______ dollars as a deposit from _______________.
2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it
which he claims to have received from _______________.
3. ______________ has notified the defendant that he claims such deposit, that the purported
assignment is not valid, and that he holds the defendant responsible for the deposit.
Wherefore defendant demands:
(1) That the court order ______________ to be made a party defendant to respond to the
complaint and to this counterclaim.4
(2) That the court order the plaintiff and ______________ to interplead their respective claims.
(3) That the court adjudge whether the plaintiff or ______________ is entitled to the sum of money.
(4) That the court discharge defendant from liability in the premises except to the person it shall
adjudge entitled to the sum of money.
(5) That the court award to the defendant its costs and attorney’s fees.
4.
Rule 13(h) provides for the court ordering parties to a counterclaim, but who are not parties to the origi-
nal action, to be brought in as defendants.
APPENDIX B 713
Form 22-A. Summons and Complaint Against Third-Party Defendant
CAPTION OF CASE
SUMMONS
To the above-named Third-Party Defendant:
You are hereby summoned and required to serve upon _______________, plaintiff’s attorney, whose
address is _______________, and upon _______________, who is the attorney for _______________,
defendant and third-party plaintiff, and whose address is _______________, an answer to the third-party
complaint which is herewith served upon you within 20 days after the service of this summons upon
you exclusive of the day of service. If you fail to do so, judgment by default will be taken against you
for the relief demanded in the third-party complaint. There is also served upon you herewith a copy of
the complaint of the plaintiff which you may but are not required to answer.
_________________________________________
Clerk of the Court
[Seal of District Court]

Dated ______________________
CAPTION OF CASE
THIRD-PARTY COMPLAINT
1. Plaintiff ______ has filed against defendant _______________ a complaint, a copy of which is hereto
attached as Exhibit “A”.
2. (Here state the grounds upon which ______________ is entitled to recovery from _______________,
all or part of what ______________ may recover from ______________. The statement should be framed
as in an original complaint.)
Wherefore _______________ demands judgment against third-party defendant ______________ for all
sums5 that may be adjudged against defendant ______________ in favor of plaintiff ______________.
_________________________________________
Attorney for Third-Party Plaintiff
Address __________________________________
5.
Make appropriate change where __________ is entitled to only partial recovery-over against __________.
714 APPENDIX B
Form 22-B. Motion to Bring in Third-Party Defendant
CAPTION OF CASE
MOTION TO BRING IN
THIRD-PARTY DEFENDANT
Defendant moves for leave, as third-party plaintiff, to cause to be served upon ______________ a
summons and third-party complaint, copies of which are hereto attached as Exhibit “____”.
_________________________________________
Attorney for Defendant ____________________
Address __________________________________
Notice of Motion
(Contents the same as in Form 19. The notice should be addressed to all parties to the action.)
APPENDIX B 715
Form 23. Motion to Intervene as a Defendant Under Rule 24
CAPTION OF CASE
MOTION TO INTERVENE
AS A DEFENDANT UNDER
RULE 24
_______________ moves for leave to intervene as a defendant in this action, in order to assert the
defenses set forth in his proposed answer, of which a copy is hereto attached, on the ground that he is
the manufacturer and vendor to the defendant, as well as to others, of the articles alleged in the
complaint to be an infringement of plaintiff’s patent, and as such has a defense to plaintiff’s claim
presenting both questions of law and of fact which are common to the main action.6
_________________________________________
Attorney for ____________________, Applicant
for Intervention
Address __________________________________
Notice of Motion
(Contents the same as in Form 19)
CAPTION OF CASE
INTERVENOR’S ANSWER
First Defense
Intervenor admits the allegations stated in paragraphs ____ and ____ of the complaint; denies the
allegations in paragraph __, and denies the allegations in paragraph __ insofar as they assert the
legality of the issuance of the Letters Patent to plaintiff.
Second Defense
Plaintiff is not the first inventor of the articles covered by the Letters Patent specified in his complaint,
since articles substantially identical in character were previously patented in Letters Patent granted to
intervenor on __________, 20____.
_________________________________________
Attorney for ___________________, Intervenor
Address __________________________________
6.
For other grounds of intervention, either of right or in the discretion of the court, see Rule 24(a) and (b).
716 APPENDIX B
Form 24. Request for Production of Documents, etc., Under Rule 34
CAPTION OF CASE
REQUEST FOR PRODUCTION

OF DOCUMENTS, ETC.,
UNDER RULE 34
Plaintiff _______________ requests Defendant _______________ to respond within ______ days to the
following requests:
(1) That defendant produce and permit plaintiff to inspect and to copy each of the following
documents:
(Here list the documents either individually or by category and describe each one of them.)
(Here state the time, place and manner of making the inspection and performance of any
related acts.)
(2) That defendant produce and permit plaintiff to inspect and to copy, test or sample each of
the following objects:
(Here list the objects either individually or by category and describe each of them.)
related acts.)
(3) That defendant permit plaintiff to enter (here describe property to be entered) and to inspect
and to photograph, test or sample (here describe the portion of the real property and the objects to be
inspected.)
related acts.)
_________________________________________
Address __________________________________
APPENDIX B 717
Form 25. Request for Admission Under Rule 36
CAPTION OF CASE
REQUEST FOR ADMISSION

UNDER RULE 36
Plaintiff _______________ requests defendant _______________ within ______ days after service of
this request to make the following admissions for the purpose of this action only and subject to all
pertinent objections to admissibility which may be interposed at the trial:
1. That each of the following documents, exhibited with this request, is genuine.
(Here list the documents and describe each document.)
2. That each of the following statements is true.
(Here list the statements.)
_________________________________________
Address __________________________________
Form 26. Allegation of Reason for Omitting Party
When it is necessary, under Rule 19(c), for the pleader to set forth in his pleading the names of
persons who ought to be made parties, but who are not so made, there should be an allegation such
as the one set out below:
John Doe named in this complaint is not made a party to this action [because he is not subject to
the jurisdiction of this court]; [because he cannot be made a party to this action without depriving this
court of jurisdiction].
Form 27. Abrogated

718 APPENDIX B
Form 28. Notice: Condemnation

FOR THE SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,

)
Plaintiff,) Civil Action, File No. _____
)
v. ) NOTICE
)
1,000 ACRES OF LAND IN (here )
insert a general location as )
“City of _______________” or “County )
of _______________”, JOHN DOE, et )
al., and UNKNOWN OWNERS, )
)
Defendants. )
__________________________________ )
TO: (Here insert the names of the defendants to whom the notice is directed):
You are hereby notified that a complaint in condemnation has heretofore been filed in the office of
the clerk of the United States District Court for the Southern District of New York, in the United States
Courthouse in New York City, New York, for the taking (here state the interest to be acquired, as “an
estate in fee simple”) for use (here state briefly the use, “as a site for a post-office building”) of the
following described property in which you have or claim an interest.
(Here insert brief description of the property in which the defendants to whom the notice is directed,
have or claim an interest.)
The authority for the taking is (here state briefly, as “the Act of _______, ________ Stat. ________,
U.S.C., Title ______, §________”).7
You are further notified that if you desire to present any objection or defense to the taking of your
property you are required to serve your answer on the plaintiff’s attorney at the address herein
designated within 20 days after _______________.8
Your answer shall identify the property in which you claim to have an interest, state the nature and
extent of the interest you claim, and state all of your objections and defenses to the taking of your
property. All defenses and objections not so presented are waived. And in case of your failure so to
answer the complaint, judgment of condemnation of that part of the above-described property in
which you have or claim an interest will be rendered.
continued
7.
And where appropriate add a citation to any applicable Executive Order.
8.
Here insert the words “personal service of this notice upon you,” if personal service is to be made pur-
suant to subdivision (d)(3)(i) of this rule [Rule 71A]; or, insert the date of the last publication of notice, if
service by publication is to be made pursuant to subdivision (d)(3)(ii) of this rule.
APPENDIX B 719
Form 28. Notice: Condemnation, continued
But without answering, you may serve on the plaintiff’s attorney a notice of appearance
designating the property in which you claim to be interested. Thereafter you will receive notice of all
proceedings affecting it. At the trial of the issue of just compensation, whether or not you have
previously appeared or answered, you may present evidence as to the amount of the compensation to
be paid for your property, and you may share in the distribution of the award.
_________________________________________
United States Attorney
Address _________________________________
(Here state an address within the district where the United States Attorney may be served, as “United
States Courthouse, New York, N. Y.”)
Form 29. Complaint: Condemnation
CAPTION OF CASE (set forth above)
COMPLAINT IN
CONDEMNATION
1. This is an action of a civil nature brought by the United States of America for the taking of
property under the power of eminent domain and for the ascertainment and award of just
compensation to the owners and parties in interest.9
2. The authority for the taking is (here state briefly, as “the Act of ________, _______ Stat.
________, U.S.C., Title ______, §_______”).10
3. The use for which the property is to be taken is (here state briefly the use, “as a site for a post-
office building”).
4. The interest to be acquired in the property is (here state the interest as “an estate in fee simple”).
5. The property so to be taken is (here set forth a description of the property sufficient for its
identification) or (described in Exhibit A hereto attached and made a part hereof).
6. The persons known to the plaintiff to have or claim an interest in the property11 are:
(Here set forth the names of such persons and the interest claimed.)12
continued
9.
If the plaintiff is not the United States, but is, for example, a corporation invoking the power of eminent
domain delegated to it by the state, then this paragraph 1 of the complaint should be appropriately modi-
fied and should be preceded by a paragraph appropriately alleging federal jurisdiction for the action, such
as diversity. See Form 2.
10.
And where appropriate add a citation to any applicable Executive Order.
11.
At the commencement of the action the plaintiff need name as defendants only the persons having or
claiming an interest in the property whose names are then known, but prior to any hearing involving the
compensation to be paid for a particular piece of property the plaintiff must add as defendants all persons
having or claiming an interest in that property whose names can be ascertained by an appropriate search
of the records and also those whose names have otherwise been learned. See Rule 71A(c)(2).
12.
The plaintiff should designate, as to each separate piece of property, the defendants who have been
joined as owners thereof or of some interest therein. See Rule 71A(c)(2).
720 APPENDIX B
Form 29. Complaint: Condemnation, continued
7. In addition to the persons named, there are or may be others who have or may claim some
interest in the property to be taken, whose names are unknown to the plaintiff and on diligent inquiry
have not been ascertained. They are made parties to the action under the designation “Unknown
Owners.”
Wherefore the plaintiff demands judgment that the property be condemned and that just
compensation for the taking be ascertained and awarded and for such other relief as may be lawful
and proper.
_________________________________________
United States Attorney
Address _________________________________
(Here state an address within the district where the United States Attorney may be served, as “United
States Courthouse, New York, N. Y.”)
Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1)
CAPTION OF CASE
SUGGESTION OF DEATH
UPON THE RECORD UNDER
RULE 25(a)(1)
_______________ [describe as a party, or as executor, administrator or other representative or

successor of _______________, the deceased party] suggests upon the record, pursuant to Rule
25(a)(1), the death of _______________ [describe as party] during the pendency of this action.
Form 31. Judgment on Jury Verdict
CAPTION OF CASE
JUDGMENT
This action came on for trial before the court and a jury, Honorable _______________, District
Judge, presiding, and the issues having been duly tried and the jury having rendered its verdict,
It is Ordered and Adjudged
[that the plaintiff _______________ recover of the defendant _______________ the sum of _______
dollars with interest thereon at the rate of ____ percent as provided by law, and his costs of action.]
[that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant
_______________ recover of the plaintiff _______________ his costs of action.]
DATED at New York, New York, this _____ day of __________, 20____.
_________________________________________
Clerk of the Court
APPENDIX B 721
Form 32. Judgment on Decision by the Court
CAPTION OF CASE
JUDGMENT
This action came on for [trial] [hearing] before the Court, Honorable _______________, District Judge,
presiding, and the issues having been duly [tried] [heard] and a decision having been duly rendered,
It is Ordered and Adjudged
[that plaintiff _______________ recover of the defendant _______________ the sum of _______
dollars, with interest thereon at the rate of _____ percent as provided by law, and his costs of action.]
[that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant
_______________ recover of the plaintiff _______________ his costs of action.]
Dated at New York, New York this _____ day of __________, 20____.
_________________________________________
Clerk of the Court
Form 33. Notice of Availability of a Magistrate Judge to Exercise Jurisdiction
[Caption and Names of Parties]
In accordance with the provisions of Title 28, U.S.C. §636(c), you are hereby notified that a United
States magistrate judge of this district court is available to exercise the court’s jurisdiction and to
conduct any or all proceedings in this case including a jury or nonjury trial, and entry of a final
judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties
voluntarily consent.
You may, without adverse substantive consequences, withhold your consent, but this will prevent
the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the
identity of the parties consenting or withholding consent will not be communicated to any magistrate
judge or to the district judge to whom the case has been assigned.
An appeal from a judgment entered by a magistrate judge may be taken directly to the United
States court of appeals for this judicial circuit in the same manner as an appeal from any other
judgment of a district court.
Copies of the Form for the “Consent to Jurisdiction by a United States Magistrate Judge” are
available from the clerk of the court.
722 APPENDIX B
Form 34. Consent to Exercise of Jurisdiction by a United States Magistrate Judge
CONSENT TO JURISDICTION BY A UNITED

STATES MAGISTRATE JUDGE
In accordance with the provisions of Title 28, U.S.C. §636(c), the undersigned party or parties to
the above-captioned civil matter hereby voluntarily consent to have a United States magistrate judge
conduct any and all further proceedings in the case, including trial, and order the entry of a final
judgment.
______________________________________________________________
Date/Signature
Note: Return this form to the Clerk of the Court if you consent to jurisdiction by a magistrate judge. Do
not send a copy of this form to any district judge or magistrate judge.
Form 34A. Order of Reference
ORDER OF REFERENCE
IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate Judge
_______________ for all further proceedings and entry of judgment in accordance with Title 28, U.S.C.
§636(c) and the consent of the parties.
_____________________________________________________
U.S. District Judge
APPENDIX B 723
Form 35. Report of Parties’ Planning Meeting
1. Pursuant to Fed. R. Civ. P. 26(f) , a meeting was held on _________ (date) ______ at
______________ (place) ______________ and was attended by:
______________ (name) ______________ for plaintiff(s)
______________ (name) ______________ for defendant(s) ______________ (party name) ______________
______________ (name) ______________ for defendant(s) ______________ (party name) ______________
2. Pre-Discovery Disclosures. The parties [have exchanged] [will exchange by

_________(date)______] the information required by [Fed. R. Civ. P. 26(a)(1) ] [local rule ______].
3. Discovery Plan. The parties jointly propose to the court the following discovery plan: [Use
separate paragraphs or subparagraphs as necessary if parties disagree.]
Discovery will be needed on the following subjects: ______________ (brief description of subjects on
which discovery will be needed) ______________.
All discovery commenced in time to be completed by _________ (date) ______. [Discovery on
______________ (issue for early discovery) ______________ to be completed by _________(date)______.]
Maximum of ______________ interrogatories by each party to any other party. [Responses due ______
days after service.]
Maximum of ______________ requests for admission by each party to any other party. [Responses due
______ days after service.]
Maximum of ______________ depositions by plaintiff(s) and ______________ by defendant(s).
Each deposition [other than of ______________ ] limited to maximum of ______ hours unless extended
by agreement of parties.
Reports from retained experts under Rule 26(a)(2) due: from plaintiff(s) by _________ (date) ______
from defendant(s) by _________ (date) ______.
Supplementations under Rule 26(e) due ______ (time(s) or interval(s))______.
4. Other Items. [Use separate paragraphs or subparagraphs as necessary if parties disagree.]

The parties [request] [do not request] a conference with the court before entry of the scheduling
order. The parties request a pretrial conference in ____________(month and year)_______.
Plaintiff(s) should be allowed until _________(date)______ to join additional parties and until
_________(date)______ to amend the pleadings.
Defendant(s) should be allowed until _________(date)______ to join additional parties and until
_________(date)______ to amend the pleadings.
All potentially dispositive motions should be filed by _________(date)______.
Settlement [is likely] [is unlikely] [cannot be evaluated prior to _________(date)______] [may be
enhanced by use of the following alternative dispute resolution procedure: ______________ ].
Final lists of witnesses and exhibits under Rule 26(a)(3) should be due from plaintiff(s) by
_________(date)______ from defendant(s) by _________(date)______.
Parties should have ______ days after service of final lists of witnesses and exhibits to list objections
under Rule 26(a)(3) .
The case should be ready for trial by _________(date)______ [and at this time is expected to take
approximately ______(length of time)______].
[Other matters.]
Date: __________
GLOSSARY
Abode service Leaving a copy of a summons and Arbitrator Disinterested third party chosen by
complaint at the defendant’s usual place of the parties or appointed by the court to render
abode with a person of suitable age and discre- a decision.
tion residing there. As a matter of law The law requires.
Actionable wrong Established category of of- Attorney Any person who acts formally for an-
fenses for which lawsuits are allowed. other person.
Adjudicate Resolve a dispute. Authorities Statutes and reported appellate cases.
Administrator Person in charge of a probate estate. Automatic stay Order by the bankruptcy court
Admit Allow in the court record and as part of the ordering creditors to refrain from proceeding
evidence to be considered by the jury. further with their suit against a debtor.
ADR See alternative dispute resolution.
Affiant Person signing an affidavit. Bill of costs Itemization of expenses a party is
Affidavit Sworn testimony that is written down seeking to be taxed.
and notarized. Binding Final and nonappealable.
Affidavit of service Affidavit serving as proof Brief Formal written argument citing reasons
that service of court papers was completed why the trial court decision was or was not in
(also called return of service). error.
Affirm Let a lower court’s decision stand. Burden of proof A party’s burden of proving each
Affirmative defense Reasons offered by the de- element of a cause of action or of a defense.
fendant as to why the defendant cannot be
found liable even if the plaintiff establishes Caption Title block of caption, which includes
every element of her cause of action. names of parties, the name of the court, and the
Agent Person who has the legal authority to act case number.
for someone else. Cause of action Type of offense that is considered
Allegations Statements in pleading laying out the an actionable wrong.
party’s version of what caused the dispute. Certificate of service Statement appearing at the
Alternative dispute resolution (ADR) Means of end of a court paper reflecting the fact that the
resolving disputes that are used as alternatives paper was mailed (or hand-delivered), record-
to litigation including arbitration, mediation, ing the date of mailing, and listing the names
med-arb, summary jury trial, and mini-trial. and addresses of each recipient.
Annotation Summary of case. Chambers Judge’s private office.
Answer Pleading in which defendant gives his Choice of forum Process by which parties decide
side of the story. which court will hear the case.
Appeal Formal request in which a party asks a Circuit A geographical region into which the U.S.
higher court to review the decision of a lower Court of Appeals is divided.
court and change it in some way. Citation Information giving the name of a case
Appear Submit formally to jurisdiction of the as well as the name, volume number, and page
court. number of the reporter in which it can be
Appellant Party filing an appeal. found.
Appellate court Court that decides appeals. Cite Specify where legal authority can be found.
Appellate jurisdiction Power of court to hear Civil action See civil lawsuit.
appeals. Civil lawsuit Process by which a person who be-
Appellee Party responding to an appeal. lieves he has been wronged can ask a court to
Arbitration Informal hearing held before a neu- order his adversary to repair the wrong.
tral third party who renders a decision and is- Civil procedure Law that deals with the rules for
sues an award. conducting cases.
726 GLOSSARY
Claim Assertion of liability based on a single Direct examination Examination by the attorney
cause of action. that called the witness.
Closing argument Final statements made by Disability Situations recognized by statute that
an attorney to jury or court that summarizes prevent plaintiffs from being able to sue.
evidence. Discharge in bankruptcy Order by bankruptcy
Complaint Formal, written statement describing court wiping out all of a debtor’s debts.
what a dispute is about and what plaintiff wants Disciplinary proceeding Proceeding instituted
court to do. against an attorney accused of violating the
Compulsory counterclaims Transactional claims rules of ethics.
defendant has. Disclosure statement Document each party is re-
Concurrent jurisdiction Shared jurisdiction. quired to prepare and serve on opposing par-
Conditional delivery Check made out to the ties shortly after the lawsuit commences.
plaintiff by the insurance company that is not Discoverable Any document or information that
to be deposited until the plaintiff has signed the is not privileged and that is reasonably calcu-
release and returned it in the mail to the insur- lated to lead to admissible evidence.
ance company. Discovery Process by which parties can obtain
Counterclaim Lawsuit by the defendant against information pertinent to their dispute.
the plaintiff, which is raised in the defendant’s Discovery cutoff date Date set by court order af-
answer. ter which no further discovery is permitted.
Counterclaimant Person asserting a counterclaim. Discretionary Within the discretion (choice) of
Counterdefendant Plaintiff in a counterclaim. the person making the decision; not mandatory.
Court A place where judges work. Dismiss Declare invalid.
Court papers Papers generated in a lawsuit that District court Trial court in the federal system.
must be filed with the court or delivered to the Diversity of citizenship jurisdiction Jurisdiction
opposing party. of federal courts over cases between residents
Court reporter Person who takes down in short- of different states.
hand everything that is said. Docket Put on office calendar.
Court-annexed arbitration Arbitration that takes Documentary evidence Written or recorded in-
place within the court system and that is gov- formation used to establish the facts and pre-
erned by the local rules. sented as evidence.
Cross-claim Claim made by one defendant against Domicile Any state in which a party is physically
another defendant. present with the intent to remain indefinitely.
Cross-claimant Person asserting a cross-claim.
Cross-defendant Defendant against whom a Elements Specific things you must prove in order
cross-claim has been filed. to win a lawsuit.
Cross-examination Examination by an attorney of Entity Artificial “person” or organization, such as
a witness called by the opposing party. corporation, partnership, or limited liability
Custodian of records Person responsible for the company.
files and records of an entity. Entry of judgment Point of time when a judgment
is entered.
Damages Money determined by court as remedy Evidence Factual information about a dispute
in civil action. that is presented to the trier of the fact.
Deadline Last day on which a response can be Ex parte Speaking to the judge without the op-
filed. posing attorney having an opportunity to par-
Decedent Person who has died. ticipate.
Default judgment Judgment entered in plaintiff’s Examine Question a witness.
name when defendant fails to respond to a com- Exclude Reject (as in the rejection of evidence).
plaint in a timely manner. Execution Process of seizing the judgment
Defendant Party being sued. debtor’s property and applying it to pay a
Demonstrative evidence Visual aids used to judgment.
prove the facts of a case. Executor Person in charge of a probate estate.
Deponent One who is deposed. Exempt property Asset the law does not allow to
Deposing Taking a person’s deposition. be seized to pay a judgment.
Deposition Discovery procedure in which a per- Expert witness Witness hired by a party to give an
son is required to appear at a specified place opinion about a topic around which they have
and time to answer questions. received specialized training or education.
GLOSSARY 727
Failure to state a claim Law does not allow such Hold harmless Pay for someone else’s losses; in-
a claim. demnify.
Federal courts Courts deriving their power from Hostile witness Uncooperative witness.
the federal government, including district and Hung jury Jury unable to reach a verdict.
circuit courts.
Federal question jurisdiction Subject matter ju- Impeach To discredit.
risdiction of federal courts allowing them to Implied authority Authority of an agent to act for
hear all civil actions arising under the Constitu- the principal.
tion, laws, or treaties of the U.S. Indemnify Pay for someone else’s losses; hold
Federal Rules of Civil Procedure Rules that ap- harmless.
ply to the federal government’s treatment of Independent medical examination Examina-
civil cases; have been adopted and/or amended tion of a party whose medical condition is at
by many of the states. issue by a doctor of the requesting party’s
Filed Delivery of court papers to the court clerk. choice.
Filing Submission of written materials to the Indispensable party Party without whom a just
court for inclusion in the permanent record of result cannot be achieved.
the case. Injunction Court order to refrain from doing
Findings of fact and conclusions of law Judge’s something.
findings of facts and law on which the judge’s Interlocutory appeal Appeal taken before a case
decision is based. is over and judgment is entered.
Firm trial date Date that case will definitely go to Interrogatories Written questions directed to an
trial barring some extraordinary event. opposing party.
Form of judgment Exact wording of a judgment. Issue of fact Question relating to what happened
Forum Court in which a case is being heard. resulting in dispute between litigants.
Forum non conveniens Grounds for dismissal Issue of law Question relating to what the law
based on the argument that the forum is not requires.
convenient for the defendant.
Forum shopping Looking for a court that will lead Joinder Joinder of issue occurs when all the
to the most favorable results for the plaintiff. pleadings have been filed.
Forum state State in which the court hearing the Judge Person who runs a courtroom, makes all
case is located. legal decisions, and can sometimes decide en-
Fraudulent conveyance Any transfer made by a tire cases.
judgment debtor that leaves her without the as- Judge pro tem Experienced attorney who volun-
sets to pay a judgment. teers to act as a judge in a particular case.
Judgment Court paper specifying what the plain-
Garnishment Obtaining a court order requiring tiff is awarded.
someone who owes money to the judgment Judgment Formal decision.
debtor to pay it to the judgment creditor. Judgment creditor Party to whom money is
General damages Losses that would naturally be awarded.
expected to occur in every case based on the Judgment debtor Party ordered to pay the
same theory of liability. money awarded the judgment creditor.
General subject matter jurisdiction Power to Judgment debtor’s examination Questioning of
hear and decide all types of cases with certain the judgment debtor about its assets.
exceptions. Judgment lien Lien that arises out of recording a
General verdict Finding by jury for either plain- judgment.
tiff or defendant. Judgment proof Person or entity without assets
General verdict with written interrogatories that can be collected by a judgment creditor.
General verdict accompanied by answers to Jurisdiction Power to adjudicate a particular
specific factual questions on which the verdict kind of dispute.
depends. Jurisdiction of the person Power of the court to
Grantor Person designated in a trust to transfer render a decision that will be binding on that
property to another person. party.
Jurisdiction of the subject matter Power to hear
Hearing Proceeding at which the judge listens and decide cases of a given type.
to oral arguments by both parties and asks Jurisdictional amount Amount in controversy in
questions. a federal case.
728 GLOSSARY
Jury instructions Rules of substantive law a jury Motion Formal request by the parties asking the
must apply in rendering its decision. court to resolve an issue of law about which the
parties disagree.
Leading question Question that tells the witness Motion for a directed verdict Motion to direct
the answer the attorney wants to hear. verdict in favor of the party making the motion.
Lien Security interest giving the lienholder the Motion for a judgment notwithstanding the ver-
right to sell property to pay off a debt. dict Motion to set aside the jury’s verdict and
Limitations period Time during which a suit must enter a verdict in favor of the party filing the
be filed. motion.
Limited subject matter jurisdiction Power to Motion for a more definitive statement Request
hear only certain categories of cases. that plaintiff be required to be more specific in
Litigant Party to a lawsuit. the complaint.
Litigate Conduct or defend a lawsuit. Motion for a new trial Motion requesting a new
Litigator Attorney who specializes in handling trial due to an alleged error made by the judge
lawsuits. during the trial.
Lodge Prepare and deliver a court paper. Motion for a pretrial conference Request that the
Long-arm statute Statutes that authorize suits judge intervene to facilitate the “just, speedy,
against non-residents in certain situations. and inexpensive disposition of the action.”
Motion for leave to amend Request to revise a
Mandate Order telling the trial court what to do complaint to correct a defect.
next. Motion for protective order Request that the judge
Mandatory arbitration Arbitration that is re- rule that the opposing party’s discovery request
quired of parties before they can have a con- is improper and need not be complied with.
ventional trial. Motion for sanctions Request that the opposing
Mandatory disclosure rules Rules that require a party be punished for refusing to disclose after
party to turn over information to the opposing a motion to compel has been granted and the
party without being asked to do so. opposing party has been ordered to disclose.
Med-arb Mediation followed by an arbitration us- Motion for summary judgment Request for judg-
ing the same neutral third party if the media- ment in favor of the moving party on the
tion fails to resolve the conflict. grounds that no genuine issue of material fact
Mediation Problem-solving process involving a exists.
neutral third party who facilitates the parties in Motion in limine Motion requesting that a judge
reaching a resolution but who lacks authority rule in advance on the admissibility of evidence.
to render a decision. Motion papers Motions, responses, replies, and
Mediator Disinterested third party who assists the accompanying memoranda.
the parties in negotiating a compromise. Motion practice Process by which the parties ask
Memorandum of points and authorities Memo- the judge to resolve questions of law.
randum accompanying a motion; gives the de- Motion to compel discovery Request that the
tailed reasons of why the judge should do as judge order the responding party to produce
the moving party is requesting. information that has been requested during
Merits Whether acts and events alleged in plain- discovery.
tiff’s complaint are legally sufficient to entitle Motion to dismiss Request to invalidate a claim
plaintiff to win a judgment and whether plaintiff because there is something wrong with it.
has sufficient evidence to prove those acts and Motion to set and certificate of readiness Motion
events. that informs the court of how many trial days
Minimum contacts Contacts a non-resident must are needed, whether a jury is needed, and any
have with a state before the court in that state other information the court clerk needs to
can assert jurisdiction under its long-arm schedule a trial.
statutes in accord with constitutional due Motion to strike Request to eliminate an insuffi-
process requirements. cient defense.
Mini-trial Settlement process in which the parties Movant Moving party; party making a motion.
present their case to a neutral third party who Moving party Party making a motion.
issues an advisory opinion, which the parties
use to negotiate a settlement. Narrative report Report prepared by a treating
Minute entry Formal written communication of a physician, summarizing the nature of the in-
judge’s decision. juries, the treatment rendered, the cost of treat-
GLOSSARY 729
ment, the prognosis, and the doctor’s opinions Pleadings Formal process in lawsuit by which
regarding any important medical issues. parties are compelled to specify in writing what
Natural person Live human being. the dispute is about; includes complaint, an-
Neutral Neutral third party. swer, and reply.
Neutral expert fact finding Resolution process Political subdivision City or county.
in which the parties present their case to a Poll the jury Public questioning of the jury by
neutral third party with expertise in the mat- the judge to make sure each juror agreed to the
ter at hand who makes recommendations to verdict.
the parties. Praecipe Formal request for a court clerk to take
Nonbinding Appealable. some action.
Notice of appeal Court paper indicating that the Prayer for relief Concluding section of com-
filing party is appealing. plaint stating specifically what plaintiff wants
Notice of deposition Document notifying other court to do.
parties that a deposition has been scheduled. Preponderance of the evidence Plaintiff’s obliga-
Notice of Independent Medical Examination No- tion to prove that each element of a cause of ac-
tice that the requesting party wants to conduct tion more probably than not occurred.
an examination of a party whose medical con- Pretrial order Court paper that specifies what at-
dition is at issue by a doctor of the requesting torneys can and cannot present at trial.
party’s choice. Pretrial statement See pretrial order.
Notice of motion Written filing of a motion. Prevailing party Party who has won a lawsuit.
Notice of service A court paper indicating that Prima facie Credible evidence presented to sup-
the document in question was served. port each element of a cause of action.
Noticing a deposition Process of scheduling a Primary authority Source of law, such as a statute
deposition and preparing and serving the ap- or case law.
propriate paperwork. Principal Person for whom an agent is acting.
Private arbitration Arbitration arising out of a
Offer Communication which, if accepted, creates contractual agreement.
an enforceable contract. Private judging Resolution process in which the
Ombudsman Employee of an organization or in- parties agree to have a neutral third party, usu-
stitution who hears complaints and disputes ally a retired judge, hear and decide their case.
and recommends how they might be resolved. Probable verdict range Maximum and minimum
Opening brief Appellant’s brief stating the rea- amounts a jury is likely to award if it decides in
sons why the appellate court should reverse favor of the plaintiff.
the trial court’s decision. Probate estate Artificial entity created by the
Opening statements Opening speech by attor- law to receive and dispose of the assets of the
neys to jury in which they tell their client’s ver- deceased.
sion of the facts. Procedural law Law of remedies.
Oral argument Verbal presentation by an attorney. Process server Someone whose job is to locate
Order Written decision either granting or deny- parties and witnesses and serve court papers
ing a motion. on them.
Original jurisdiction Power of court to try a case. Professional courtesy Customs governing the
Overrule Appellate court’s decision not to follow asking and granting of extensions and other fa-
rules laid down in a previous decision. vors between opposing attorneys.
Propounding Preparing interrogatories and
Parties People who are suing or being sued. submitting them to the opposing party to be
Pendent jurisdiction Jurisdiction of federal answered.
courts over state law causes of action that are Propounding party Party who prepares inter-
appended to a valid federal cause of action. rogatories or some other discovery document.
Peremptory challenge Limited number of chal-
lenges attorneys can use to remove prospec- Rebuttal Plaintiff’s response to defendant’s
tive jurors from a panel; no cause is needed. presentation.
Personal representative Person in charge of a Record release form Form signed by a client au-
probate estate. thorizing records to be released to an attorney.
Personal service Hand delivery of summons and Redirect examination Reexamination of a witness
complaint to defendant. by the attorney who called him after the witness
Plaintiff Party bringing suit. has been subjected to cross-examination.
730 GLOSSARY
Release Agreement in which a plaintiff relin- Special damages Particular losses suffered by a
quishes her claims against the defendant. plaintiff.
Remittitur Reduction of an unreasonably exces- Special verdict Written findings prepared by jury
sive award. on particular issues of fact.
Removal Moving of a case from one court to Specific performance Court order requiring party
another. to do something the party contracted to do.
Reply Court paper prepared by the moving party State a claim Assert liability.
in rebuttal to the response prepared by the State courts Courts deriving their power from the
party opposing the motion. states.
Reply brief Brief in which the appellant answers Statement Record of what a witness has said
any questions raised in the appellee’s respond- about the facts in dispute.
ing brief. Statement of costs Winner’s statement filed with
Request for admissions Request that a party ad- the court listing the costs involved in litigating.
mit or deny specific factual statements. Status conference Conferences scheduled every
Request for entry upon land for inspection Re- few months at which the parties and judge dis-
quest to enter a location that is under another cuss the status of the case.
person’s control for reasons of inspection. Statute of limitations Statute that requires suit to
Request for production of documents and things be filed on a particular type of claim within a
Court paper requesting documents from an op- specified time after the claim occurs.
posing party. Stay Court order preventing the judgment credi-
Res judicata Prohibition against relitigating any tor from collecting on the judgment for a period
issues around which a court has entered judg- of time.
ment. Stipulate To mutually agree so as to avoid the
Respondent Responding party; party opposing a need for argument.
motion. Stipulation Agreement between attorneys.
Responding brief Appellee’s brief stating the rea- Subpoena Court order requiring a witness to appear
sons why the appellate court should not re- at a specified time and place to give testimony.
verse the trial court’s decision. Subpoena duces tecum Subpoena ordering a wit-
Responding party Party required to answer in- ness to provide specified documents.
terrogatories or some other discovery request. Substantive law Law that relates to the regulation
Response Court paper prepared by the party op- of human conduct.
posing a motion. Summary jury trial An abbreviated trial in which
Rests Party is finished presenting evidence. the parties present evidence in a summary
Return of service Affidavit serving as proof that fashion to a jury, allowing the attorneys to re-
service of court papers was completed (also ceive an evaluation of their case.
called affidavit of service). Summons Court order requiring the defendant to
Reverse Set aside a trial court’s decision. appear before the court and defend the suit.
Reversible error Error that justifies an appellate Supersedes bond Bond posted by a judgment
court setting aside or modifying a trial court’s debtor in order to obtain a stay; this bond is a
decision. promise to pay the award once the appeal is de-
cided and is usually accompanied by some
Scheduling conference Conference involving the form of security.
parties and the judge at which the judge issues
a scheduling order, specifying what discovery Taxable costs Those expenses related to a suit for
will be allowed, what motions will be filed, and which the winner is entitled to judgment.
the deadlines for the completion of each task. Taxation of costs Process of establishing the
Scope Subject matter covered during examination. amount for which a party is entitled to be
Secondary authority Legal reference used to find reimbursed.
primary authority, such as a treatise or Re- Testify Give evidence under oath.
statement. Testimonial evidence Oral presentation of evi-
Service Delivery of court papers via a formal dence used to establish the facts.
process. Testimony Responses by witnesses to questions
Settle Agreement to end a dispute. put to them while they are on the witness stand.
Sever Split off a claim for a separate decision. Theory of liability Rationale offered by the plain-
Sovereign immunity Immunity of government tiff for why the court should hold the defendant
from suit. liable.
GLOSSARY 731
Third-party claim Claim by the defendant against Tribunal Court or any other adjudicative officer.
someone the plaintiff has not sued. Trier of fact One who renders a verdict (judge or
Third-party complaint Complaint brought by de- jury).
fendant in a lawsuit against someone not in the Trustee Person designated in a trust to whom
lawsuit. property is transferred.
Time-barred Cause of action can no longer be Trustor Person designated in a trust to transfer
sued on because limitations period has run out. property to another person (trustee).
Transactional When plaintiff’s cause of action
against defendant and defendant’s cause of ac- Under advisement Judge’s decision to issue a de-
tion against plaintiff both arise from the same cision about a matter before her at a later date.
factual setting.
Transcript Printed or typewritten booklet con- Venue Rules requiring suit to be brought in place
taining every word that was said at a deposition least inconvenient for parties and witnesses.
or trial. Verdict Formal written decision indicating how
Transformative mediation Form of mediation dispute was resolved.
that is nondirective whose primary purpose is Voir dire Questioning of potential jurors.
to allow the parties to speak until they have Voluntary arbitration Arbitration used by the
nothing left to say. parties by choice.
Trial court Court of general jurisdiction in which
lawsuits generally begin. Waive Voluntarily and knowingly give up a right.
Trial de novo New trial. Witness statement Written or electronically
Trial notebook Loose-leaf binder used to organ- recorded reproduction of a witness’s version of
ize papers that a trial attorney may need to ac- the facts.
cess quickly during a trial. Writ of execution Court order directing a law en-
Trial setting Minute entry specifying the date, forcement official to seize specific property and
time, and place for trial. sell it at public auction.
Trial to the court Trial in which a judge functions
as both judge and jury.
INDEX
abode service, 310, 312 annotations, 30

accuracy answer drafting
of answers, 349 example, 349–51
in complaint drafting, 294–95 exercises, 351–52
actionable wrong, 53 instructions, 339–49
adjudicate, 6 answer due date, 316
adjudication, judgment after, answer, 56–57
583–86 alternatives to, 337–39
administration, 25–29, 31, 33 to discovery requests
Administrative Dispute Resolution Act (ADRA), example, 426–30
118, 138 exercises, 430–32
administrative information, 261 instructions, 410–26
administrative remedies, 260 procedure for, 409–10
administrator, 314 purpose of, 409
admissibility, 398 service of, 57–58
admissions, 73, 344, 345–46. See also requests strategy considerations and role of paralegals, 339
for admissions appeals, 22, 25, 194–96, 203–7, 208–9, 211–12
adverse parties, 256–57 appear, 56
advocacy in mediation, 125 appellant, 25, 204
affidavit of service, 55 appellate courts, 22, 23, 25
affidavits, 55, 542–43 appellees, 25, 204
affirm, 25, 204 arbitration, 117, 118–22, 260
affirmative defenses, 56, 342, 346 arbitrator, 6
agents, service of complaints on, 310–11, 313–14 as matter of law, 97
allegations, 52, 297 assets, finding, 198, 210
and answers, 343–46 attachments, 497–98, 522–23
factual basis of, 422 attendance, resisting, 473
general, 288–90 attorney fees, 593. See also motion to set attorneys’
alternative dispute resolution (ADR), 11, 138–40 fees
arbitration, 118–22 attorney–client privilege, 415
client preparation, 137 attorneys, 5–6
defined, 117 and depositions, 470–71, 473–74
history of, 117–18 locating, 304
limitations of, 132–33 authorities, 205, 276–77
med-arb, 126–27 automatic stay, 337
mediation, 122–26
mini-trial, 128–29 background facts, 385, 389
neutral expert fact finding, 130 backings, for court papers, 274
ombudsman, 130 bad facts, 421
private judging, 129 bankruptcy, 337
pros and cons, 130–32 Bankruptcy Court, 28
summary jury trials, 127–28 best alternative to a negotiated agreement
training, 132 (BATNA), 137
alternative pleading, 291 billable hours, 134–35
ambiguous questions, 414–15 bill of costs, 592
American Arbitration Association (AAA), 119–20, 138 binding arbitration, 119
734 INDEX
blocked and indented quotations, 277 See also lawsuits

body of document, for court papers, 276–77 claims, 57, 96, 221, 222. See also issues outline
boilerplate defenses, 346–47 and complaint drafting, 286
bond, supersedes, 195 failure to state, 97, 338–39
bottom-up case analysis, 230 stating, 52
brevity, 531–32 unmeritorious, 609–10
briefs, 205–6, 571 value of, 258
bulletproof requests, 366–67 See also counterclaims; cross-claims
burden of proof, 169 clerk, judgments entered by, 583, 587–89
burdensome questions, 417 client communications, 253, 320
client confidentiality, 253
calendars, 331–32. See also docketing client interviewing, 254–61, 270
captions, 54 client preparation, for alternative dispute
for answers, 343, 413 resolution, 137
for court papers, 275 client relations, 253, 352, 607
for disclosure statements, 442 clients
for discovery documents, 368 informing, 261
preparing, 286–87 records of, 267–68
for written interrogatories, 392 closing arguments, 171–72, 561
case analysis, 230 coaching, 570
case file, organizing, 232 collectibility conundrum, 197–98
caseload, 246 common law pleading, 8
case management conference, 557 compel. See motion to compel
case management order, 557 complaint, 52
case management schedule, 557 service of, 305–7
case management statement, 557 example, 316–19
case tracking, 557 exercises, 319–20
case workup, 253 instructions, 307–16
example, 266–68 third-party, 57
exercises, 268–69 complaint drafting, 285
instructions example, 298–302
client interviewing steps, 254–61 exercises, 302–3
investigation steps, 261–64 instructions
settlement demand steps, 264–66 concluding steps, 294–97
cataloging, 371–72 drafting steps, 286–94
causes of action, 52, 53, 221, 222. See also preparatory steps, 285–86
issues outline precision in, 297
and complaint drafting, 290–92 style, 297
federal law, 246 compliance, voluntary, 512–13, 517–20
researching, 262 compulsory counterclaims, 348
state law, 246 computer equipment, 566–67
transactional, 348 concurrent jurisdiction, 6
central index, 105–6 conditional delivery, 265
certificate of readiness, 149 conferences
certificate of service, 278–79, 348, 368 pretrial, 149–50 (see also motion for a pretrial
chambers, 94 conference)
circuits, 22 status, 104
citations, 30, 32, 276–77, 519 confidentiality, 253, 606–7
cite, 276 consent, personal jurisdiction
citizenship, 239–40 by, 241
city courts, 29 continue. See motion to continue
civil action, 4 controlling authority, 610
civil lawsuits. See lawsuits copying, documents, 432
civil procedure corporations
defined, 4 deposing, 464
importance of, 3–4 and personal jurisdiction, 241
terminology, 4–9 serving process on, 311, 313–14
INDEX 735
costs date
bill of, 592 on answers, 348, 422–24
escalation of, 612 on complaint drafting, 293–94
statement of, 178 on court papers, 278
taxable, 177, 585–86, 591–93 on disclosure statements, 448
counterclaimant, 347 on discovery documents, 368
counterclaims, 57, 347–48 deadlines, 103–4, 323
compulsory, 348 awareness of, 412
replies to, 348 computing, 326–27
counterdefendant, 347 of opponents, 332
court annexed, 119 setting
courtesy, professional, 319 example, 332–34
court files, locating, 304 exercises, 334–35
Court of Appeals, 28 instructions, 327–32
Court of Claims, 28 debtor’s exam, 198
court papers, 7, 55 decedent, 314
creating, 273–80 decision making, strategic, 48–49
deadlines, 326–35 default, 337
postcomplaint service of, 323–26 default judgments, 58, 582
court reporters, 75, 467–68 example, 594–99
court reporting, real-time, 567 exercises, 599, 602
courts, 6, 20–22, 36–37 instructions, 586–93
administration, 25–29 defendants, 5, 168–70
appellate, procedure in, 23, 25 defenses
city, 29 affirmative, 56, 342, 346
federal, 22–23 boilerplate, 346–47
personal jurisdiction in, 243 researching, 262
state law causes of action in, 246 definitive statements. See motion for a more
and subject matter jurisdiction, 239–40 definitive statement
and venue, 244 delaying tactics, 612
jurisdiction, 29 deliberation, 173–75
procedure questions, 30–33 demonstrative evidence, 154, 566–67
small claims, 29 denial, 344, 345–46
specialty, 28–29, 237 de novo trial, 118, 119
state, 25 deponent, 75
procedure, 585 deposing, 459
and subject matter jurisdiction, 238–39 deposition outlining, 476–77
and venue, 243–44 depositions, 75–76, 355
court selection advantages of, 459–60
example, 248–49 alternatives to, 461–62
exercises, 249–50 example, 477–81
importance of, 235 exercises, 481–82
instructions, 235–47 follow-up, 518
See also forum shopping instructions
cover sheet, 53 clerical steps, 467–69
cross-appeals, 204 concluding step, 474–77
cross-claimant, 347 planning and taking testimony, 469–74
cross-claims, 57, 347–48 preparatory steps, 460, 462–67
cross-defendant, 347 procedural goals, 460
cross-examination, 160–61, 162 summarizing, 482–83
custodians of records, deposing, 466 testimony, 570
direct examination, 160
damages, 5, 257–58 discharge in bankruptcy, 337
calculating, 265, 390–91, 446–47 disciplinary proceedings, 605
and ethics, 614 disclosure, 558–59
general, 289 of exhibits and witnesses,
special, 289 421–22
736 INDEX
of rebuttal evidence, 422 discretionary, 23, 174

disclosure rules, 438, 441 dismiss, 96. See also motion
disclosure statements to dismiss
and ethics, 615 district courts, 22, 556–58
example, 449–50 diversity of citizenship jurisdiction,
exercises, 455–56 239–40
inadequate, 443–44 docketing, 327
instructions answers to interrogatories, 410
concluding steps, 449 disclosure statements, 441
drafting steps, 442–48 document discovery, 371
preparatory steps, 440–42 motions, 501
mandatory, 81–82, 355–56, 357, 435, 438–39, 615 supplementation checks, 449
and trial preparation process, 436–37 written interrogatories, 399
discoverable, 365 documentary evidence, 7, 61
discovery, 10, 72–74, 85 document discovery
adversarial side of, 511–14 example, 374–81
depositions, 75–76 exercises, 381–82
disputes over, 511 concluding steps, 371–74
document drafting steps, 368–71
example, 374–81 preparatory steps, 364–68
exercises, 381–82 objectives of, 361
instructions, 364–74 process, 361–62
objectives of, 361 strategy and goals, 361
process, 361–62 tools of, 362–64
strategy and goals, 361 document management, 250
tools of, 362–64 documents/documentation
enforcement, 82 assembling, 262
and ethics, 610 backup, 447
evidence, informal gathering copying, 432
of, 82 for depositions, 469, 471
of expert opinion, 80 discoverable, 444–45
independent medical examinations, 80–81 genuineness of, 392
limitations on, 81–82, 438 of outcomes, 261
mandatory disclosure statements (see disclosure numbering, 382–83
statements) See requests for production of documents
overview, 357–58 and things; written interrogatories
and paralegals, 83, 358–59 domicile, 239, 240
reengineering process, 435 drafting. See complaint drafting
requests for admissions, 79–80 drafting style, 297
requests for production of documents and things, drawing tablets, 566
77–79
supplementation and disclosure, 558–59 elements, 52, 53
written (see written interrogatories) and answer drafting, 342–43
discovery citations, notebook and complaint drafting, 286, 295
of, 519 enforcement, of discovery, 82
discovery cutoff date, 362 entities, 5
discovery legalese, 367 entry of judgment, 177
discovery motions, 100–103, 488. See also motion to Erie doctrine, 247
compel estates, service of complaints on, 314–15
discovery reform, 355–56, 437 ethical rules
discovery requests breaking, 605–6
deadlines for, 328 for litigation tasks, 609–13
responding to for litigators and paralegals, 606–9
example, 426–30 sources of, 605
exercises, 430–32 ethics
instructions, 410–26 defined, 605
procedure for, 409–10 discussion topics, 613–15
purpose of, 409 importance of, 605
INDEX 737
evidence, 7 disclosure statements, 449

demonstrative, 154 discovery documents, 369, 373
documentary, 61 and ethics, 607
and document discovery, 373 motions, 499–500, 535
false, 609 motion for sanctions, 513–14
informal gathering of, 82 motion to compel, 513
for motion for summary judgment, 542–43 pleadings, 295–97
presentation of and service of answer, 57–58
closing arguments, 171–72 and service of process, 52–56
defendant’s case, 168–70 subpoenas, 370–71
deliberation and verdict, 173–75 written interrogatories, 398
jury instructions and submission to jury, findings, 158, 585
172–73 firm trial date, 556
motions, 170–71 fonts, for court papers, 274, 276
plaintiff’s case, 159–62 footnotes, in court papers, 277
rebuttal, 170 form of judgment, 177
resting, 162–63 forms, 58
rebuttal, 422 forum, 59
tampering with, 610–11 forum non conveniens, 245
evidence presentation systems, 567 forum shopping, 29
examination, 75, 160–61, 198 as alternative to filing answer, 337–38
exclusions, 73 example, 248–49
execution, 197, 199–201 exercises, 249–50
executor, 314 importance of, 235
exempt properly, 337 instructions, 235–47
exhibits forum state, 29
blowups of, 566 fraudulent conveyance, 202–3
at depositions, 471 Freedom of Information Act
disclosure of, 421–22 (FOIA), 282
limiting, 390
marking and preparing, 565–66 garden-variety lawsuits, 236–37
preparation of, 153–54 garnishment, 200
expert fact finding, neutral, 130 general damages, 289
expert witnesses, 80, 464 general subject matter jurisdiction, 238
explanations, clarity of, 509 general verdict, 174
eyewitnesses, 464–65 general verdict with written interrogatories, 174
genuineness, 391–92, 397–98
fact checking, in complaint drafting, 295 governmental offices and agencies, service of
fact finding, neutral expert, 130 complaints on, 315
fact gathering, 47–48 grantor, 315
failure to state claim, 97, 338–39
false evidence, 609 hand-delivered papers, 329
Federal Arbitration Act, 138 harmless error, 204
federal courts, 22–23 headings, in court papers, 277
personal jurisdiction in, 243 hearings, 94, 590–91
state law causes of action in, 246 holidays, and deadlines, 330
and subject matter jurisdiction, 239–40 hostile witnesses, 161
and venue, 244 hung jury, 174
federal disclosure rules, 441 husband–wife privilege, 415
federal law causes of action, 246
federal procedure, 31 imagery, 295
federal question jurisdiction, 239 immunity, sovereign, 49
Federal Rules of Civil Procedure (FRCP), 30 impeach, 75
federal transfer, 245 implied authority, 311
filing, 6, 27 indentation, for court papers,
answer drafts, 349 274, 277
answers to interrogatories, 424 independent medical examination (IME), 80–81,
and deadlines, 325–26 355
738 INDEX
indexes judgment debtor’s examination, 198

central, 105–6 judgment lien, 199
computer-generated, 476 judgment n.o.v. See motion for a judgment
indispensable parties, 342 notwithstanding the verdict
individual defendants, personal service on, 309, 312–13 judgment proof, 197
informal requests, 363–64 judgments, 6
information after adjudication, 583–86
administration, 261 default, 58, 582
background facts, 385, 389 example, 594–99
discoverable, 442 exercises, 599, 602
for answering interrogatories, 411–12 instructions, 586–93
known facts, 385, 391–92 defining, 581
information sheet, 52–53 interest on, 584
information sources, 260–61 obtaining, procedure for, 581–83
injunctions, 5 and verdicts, 175–78
in limine. See motion in limine jurisdiction, 6, 29, 287–88
inquiry, duty, 412 jurisdiction of the person, 240–43
in rem, 243 jurisdiction of the subject matter, 238–40
insurance coverage, disclosing, 447–48 jurisdictional amount, 240
interlocutory appeals, 205, 206 jurors, improperly influencing, 612
interrogatories, written, 77, 355 jury
drafting deliberation and verdict, 173–75
example, 400–407 demographics, 246–47
exercises, 407 hung, 174
instructions, 388–400 polling, 174
leaky, 395 submission to, 172–73
limitations on, 388 jury instructions, 563–65
numbering, 393 and motions, 170
procedure for, 385–88 proposed, 152–53
uses of, 385 reading, 172–73
interviewing, 254–61, 264, 270 jury selection, 156–57
introductory paragraph, for court papers, 275–76 jury trials. See trials
investigation, 47–48, 261–64, 412 jury verdicts, 581
issue, joinder of, 59–60
issues of fact, 7 known facts, 385, 391–92
issues of law, 7
issues outline, 222 laches, 260
example, 228–31 lawsuits, phases of, 9–11, 45–52, 62–63. See also
exercises, 231–32 appeals; discovery; judgments; motions;
instructions, 222–27 pleadings; pretrial practice; trials
updating, 441–42 leading questions, 162
leaky interrogatories, 395
joinder of issue, 59–60 legal advice, and ethics, 608
judge pro tem, 556 legalese, discovery, 367
judges, 6 legal research, 520–21
demographics, 246–47 length limits, for court papers, 274
improperly influencing, 612 liability, theories of, 222. See also issues outline
judgments requiring approval from, 583, 585, 589 lien, 199
judgment collection, 194–97, 211–12 limited liability companies, service of complaints on,
collectibility conundrum, 197–98 314
execution, 199–201 limited partnerships, service of complaints on, 314
finding assets, 198 limited subject matter jurisdiction, 239
judgment debtor’s options, 201–3 line spacing, for court papers, 274
and paralegals, 203 literacy check, in complaint drafting, 295
judgment creditor, 195, 198 litigants, 5
judgment debtors, 195 litigation
assets of, 210 defined, 5
options of, 201–3 ethics in (see ethical rules; ethics)
INDEX 739
litigation paralegals. See paralegals motions, 106–7

litigators deadlines for, 328
defined, 5 deciding, 94–96
ethical rules for, 606–9 and decision making, 535
local variability, 285, 356–57, discovery, 100–103, 488
492–93 early-stage, 535–40
lodge, 177 and jury instructions, 170–71
long-arm statutes, 241, 242–43 on merits, 96–100
lying, 609 and paralegals, 104
presenting, 92–94
mail, service by, 312–13 responding to, 499
mail handling, 326–327 scheduling orders and deadlines, 103–4
mandate, 207 substantive, 488
mandatory arbitration, 119 types of, 487–89
mandatory disclosure statements. See disclosure See also specific motions
statements motion to compel, 100–102, 488
margins, for court papers, 274, 276 example, 523, 525–28
mechanical requirements, for court papers, 274 exercises, 528–31
med-arb, 117, 126–27 filing, 513
media, improper statements to, 613 instructions
mediation, 117, 122–26 concluding steps, 523
mediators, 11, 136 drafting steps, 521–23
medical examinations, independent, 80–81, 355 preparatory steps, 515–21
memorandum of points and authorities, 92, 492, responding to, 524
494–96, 521–22, 542, 571 motion to continue, 489
merits, 337 motion to dismiss, 97, 338–39, 488, 536, 538–39,
metaphor, 295 582
minimum contacts, 242 motion to set and certificate of readiness, 149
mini-trials, 117, 128–29 motion to set attorneys’ fees, 489
min-u-script transcripts, 476 motion to strike, 97, 488, 536–37
minute entry, 95 motion writing
misleading questions, 415 brevity and simplicity, 531–32
motion for a directed verdict, 170, 581–82 example, 503–7
motion for a judgment notwithstanding the verdict, exercises, 508
176, 582 instructions
motion for a more definitive statement, 100, 339, 489 concluding steps, 498–503
motion for a new trial, 175 drafting steps, 493–98
motion for a pretrial conference, 104, 489 local rules, 492–93
motion for judgment notwithstanding refining skills for, 551–52
the verdict, 489 rules governing, 491–92
motion for leave to amend, transitions and clear explanations, 509–10
99–100, 488 motorist statutes, nonresident, 313
motion for new trial, 489 movant, 491
motion for protective orders, moving party, 491
102, 488 multiple parties, 341
motion for relief from judgment, 489
motion for sanctions, 102–3, 488, 513–14 narrative reports, 267
motion for summary judgment, 98–99, 488, 537–38, National Academy of Arbitration (NAA), 120
539, 582 natural person, 5
deadlines for, 328 neutral expert fact finding, 130
example, 543–46 nonbinding arbitration, 119
exercises, 546, 548, 551 nonresident motorist statutes, 313
instructions, 541–43 nonroutine defendants, service of complaints on,
motion in limine, 151, 489, 568 312–15
motion papers, 94 notice of appeal, 205
motion practice, 10 notice of deposition, 459
defining, 491 Notice of Independent Medical Examination, 80–81
significance of, 491 notice of motion, 491
740 INDEX
notice of service, 279 unidentified, 296

notice pleading, 291 partnerships, service of complaints on, 314
notices, 326 pendent jurisdiction, 239
numbering systems, 287 peremptory challenges, 157
for answers, 343 personal jurisdiction, 240–43
for documents, 382–83 personal representative, 314
for interrogatories, 393 personal service, 54
on agents, 310–11
objectionable questions, 413–18 on individuals, 309
objections on nonroutine defendants, 312
at depositions, 474 persuasive writing, 494–95
and discovery, 511–12 physician–patient privilege, 415
offers, 265 plaintiffs, 5
ombudsman, 130 case presentation, 159–62
opening brief, 206 pleadings, 6, 9
opening statements, 158–59, 561 answer, 56–57
opposing parties, 611 alternatives to, 337–39
oral argument, 94 filing and service of, 57–58
orders, 95 strategy considerations and role
case management, 557 of paralegals, 339
pretrial, 149–50, 449–60 answer drafting
scheduling, 103–4 example, 349–51
organization, of court papers, 277 exercises, 351–52
original files, 364 instructions, 339–49
outcome documentation, 261 common law, 8
outlining, deposition, 476–77. See also complaint, 52
issues outline complaint drafting, 285
overcapitalization, 295 concluding steps, 294–97
overpromise, 607 drafting steps, 286–94
overrule, 25 example, 298–302
exercises, 302–3
papers. See court papers precision in, 297
paralegals preparatory steps, 285–86
and answers, 339 style, 297
and appeals, 208–9 damages, 289
and arbitration, 121–22 deadlines for, 328
and court system, 34 forum choice, 59
and depositions, 470 joinder of issue, 59–60
and discovery, 83, 358–59 and paralegals, 60
ethical rules for, 606–9 process, filing and service of, 52–56
and judgment collection, 203 reply, 59
and lawsuits, 11, 51–52 vocabulary, 296–97
and med-arb, 127 political subdivisions, 5
and mediation, 124–25 polling the jury, 174
and mini-trials, 129 positioning, 50
and motions, 104 praecipes, 58
and pleadings, 60 prayer for relief, 52, 292–293, 347
tasks of, 12–13 preamble, 287
and trial preparation, 154–55 for answers, 343, 413
parties, 5 for disclosure statements, 442
and complaint drafting, 287 for discovery documents, 368–69
indispensable, 342 for written interrogatories, 392
multiple, 341 preponderence of the evidence, 169
opposing, 611 press, improper statements to, 613
prevailing, 593 pretrial conferences, 149–50, 557. See also motion
propounding, 512–14 for a pretrial conference
responding, 511–12 pretrial orders, 149–50, 449–60
INDEX 741
pretrial practice, 10, 148–55 requests for entry upon land for inspection, 78
pretrial statements, 149–50, 559–60 requests for production of documents and things,
prevailing parties, 593 77–79, 355, 362–63, 368–69, 425
priest–penitent privilege, 415 research, legal, 520–21
prima facie case, 161–62 residence, 240
primary authority, 276 residents, state, and personal jurisdiction, 241
principal, 310 res judicata, 581
private arbitration, 119 respondent, 491
private judging, 129 respondent superior, 288
privilege against self-incrimination, 415 responding brief, 206
privileged communications, responding parties, 77, 491, 511–12
415–16 responses, supplementation of, 366
pro tem judges, 556 responsive pleading. See answer; answer
probate estate, 314 drafting
procedural law, 4, 245–46. See also civil procedure resting, 162–63
procedure return of service, 54, 315–16
administrative detail, 31, 33 reverse, 25
in appellate courts, 23, 25 reversible error, 204
federal, 30 revision
specialty cases, 33 of answer drafting, 349
state, 31 of complaint drafting, 294–95
process, service of, 52–56 of memorandums, 496
process server, 54, 325, 329 rewriting, memoranda, 496
professional courtesy, 319 Rules of Decision Act, 247
professionalism, 615–16
proof. See burden of proof samples, finding, 407–8
proof of service, for subpoenas, 370–71 sanctions. See motion
propounding interrogatories, 77 for sanctions
propounding parties, 77, 512–14 sandbagging, 170, 181
protective order. See motion for protective order scheduling conference, 103
public records, 282 scheduling orders, 103–4
secondary authority, 276
quasi-in rem, 243 second-class justice, 131
questions, objecting to, 413–18 self-incrimination, privilege
quotations, 277, 551–52 against, 415
served, 7
real-time court reporting, 567 service, 7
rebuttal, 170, 422 of answer, 57–58, 349, 424
rechecking, memorandums, 496 of complaints, 305–7
records example, 316–19
of clients, 267–68 exercises, 319–20
public, 282 instructions, 307–16
redirect examination, 161 of disclosure statements, 449
redundancy, virtue of, 367 of discovery documents, 369
releases, 265 of motions, 499–500
remittitur, 176 of pleadings, 295–97
removal, 244–45 of process, 52–56
remove, 59 of subpoenas, 370–71
rent-a-judge statutes, 129. See also private judging of written interrogatories, 398
reply, 59 settlements, 50, 155, 264–66, 338, 582–83
reply brief, 206 sever, 57
requests, informal, 363–64 signature line
requests for admissions, 79–80 on answers, 348, 422–24
procedure for, 385–88 on complaint, 293–94
responding to, 425–26 on court papers, 278
uses of, 385 on disclosure statements, 448
writing, 394–95, 397–98 on discovery documents, 368
742 INDEX
simplicity, 531–32 third-party claims, 57

small claims courts, 29 third-party complaint, 57
sound recording, 566 third-party witnesses, 611
sovereign immunity, 49 tickler systems, 335
special damages, 289 timekeeping, 134–35
specialty cases, procedure in, 33 time management, 35
specialty courts, 28–29, 237 to do lists, 35
special verdict, 174 top-down case analysis, 230
specific performance, 5 training, for alternative dispute resolution, 132
state courts, 22, 25 transactional causes of action, 348
procedure, 585 transcripts, 75, 474–77
and subject matter jurisdiction, transfer, 244–45
238–39 transformative mediation, 123
and venue, 243–44 transitions, 509
state law causes of action, 246 trial briefs and memoranda, 571
state law procedure, 31 trial courts, 22
state residents, and personal jurisdiction, trial de novo, 118, 119
241 trial notebook, 571–72
statement of costs, 178 trial preparation
status conferences, 104 and disclosure statements, 436–37
statutes of limitations, 258–59, 260 example, 572–76
stay, 195, 337 exercises, 576–78
stipulations, 153, 331–32, 582–83 task checklist
strategic decision making, 48–49 closing arguments and opening
strike. See motion to strike statements, 561
subject matter jurisdiction, 238–40 demonstrative evidence, visual aids,
subpoena duces tecum, 78, 363 and other props, 566–67
subpoenas, 75, 369–71 exhibits, 565–66
subpoenas ad testificandum, 363 final discovery supplementation and
substantive law, 4, 246 disclosure, 558–59
substantive motions, 488 jury instructions, 563–65
sum certain, 588, 590–91 motions in limine, 568
summary judgment. See motion for summary pretrial statement/order, 559–60
judgment testimony, 568–70
summary jury trials, 117, 127–28 trial briefs and memoranda, 571
summons, 53, 305–7 trial notebook, 571–72
superior court, 25 voir dire questions, 561–63
supersedes bond, 195 trials, 7, 155–56
supplementation, 366, 399–400, 424, 558–59 average time to, 246
supplementation checks, docketing, 449 jury selection, 156–57
Swift v. Tyson, 247 opening statements, 158–59
ordeal of, 555
tag jurisdiction, 241–42 presentation of evidence, 159
tampering closing arguments, 171–72
with evidence, 610–11 defendant’s case, 168–70
with witnesses, 611–12 deliberation and verdict, 173–75
Tax Court, 28 jury instructions and submission to jury,
taxable costs, 177, 585–86, 591–93 172–73
testifying, 7 motions, 170–71
testimonial evidence, 7 plaintiff’s case, 159–62
testimony, 7 rebuttal, 170
courtroom, 578–79 resting, 162–68
deposition, 469–74, 476 See mini-trials; summary jury trials
preparing, 568–70 trial setting, obtaining, 148–49, 555–58
things. See requests for production of documents trial to the court, 582
and things tribunal, 609
third person, 296 trier of fact, 7–8
INDEX 743
trustee, 315 witnesses

trustor, 315 attendance of, 468–69
trusts, 314–15 coaching, 570
truth, 290 and depositions, 463–65, 474
type size, for court papers, disclosure of, 421–22
274, 276 expert, 80, 464
hostile, 161
U.S. Bankruptcy Court, 28 identifying, 389
U.S. Court of Appeals, 28 interviewing, 264
U.S. Court of Claims, 28 limiting, 390
U.S. District Courts, 556–58 planning for, 568–69
U.S. Tax Court, 28 scheduling, 569
under advisement, 95 tampering with, 611–12
under submission, 95 third-party, 611–12
unidentified parties, 296 uncooperative, 461–62
witness statements, 263, 461
venue, 6, 243–44 working file, 84
verdict, 7, 173–78, 581 work product, 416–17
verification worst alternative to a negotiated agreement
of answers, 348, 422–24 (WATNA), 137
of complaint drafting, 293–94 writ of execution, 199
of disclosure statements, 448 writing skills, refining, 551
video recordings, 566 written interrogatories, 77, 355
visual aids, 566–67 drafting
voir dire, 156–57, 561–63 example, 400–407
voluntary arbitration, 119 exercises, 407
voluntary compliance, 512–13, 517–20 instructions, 388–400
leaky, 395
waive, 308 limitations on, 388
waiver, 416 numbering, 393
waiver of service, 308–9 procedure for, 385–88
weekends, and deadlines, 330 uses of, 385

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CIVIL PROCEDURE

WEST LEGAL STUDIES

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Library of Congress Cataloging-in-Publication Data

KF8841 .E54 2000

REASON FOR THE DEVELOPMENT OF THIS TEXT

ORGANIZATION OF THIS TEXT

workshop contains a set of step-by-step instructions guiding the student

HOW TO USE THIS TEXT

CHAPTER FOUR DISCOVERY

■ Westlaw. West’s on-line computerized legal research system offers stu-

JACK S. EMERY, J.D. Jack Emery practiced as a litigation attorney in

CHAPTER 1 Administrative Detail 31

PRACTICE EXAM 64 REVIEW QUESTIONS 108

GETTING FROM VERDICT TO JUDGMENT 175 COLLECTING THE JUDGMENT 196

INTRODUCTION: THE SUBSTANTIVE BUILDING BLOCKS INTRODUCTION: CASE WORKUP 253

INTRODUCTION: WHY THE CHOICE OF FORUM COURT PAPERS 273

EXERCISES 279 HOW TO COMPUTE DEADLINES 326

INTRODUCTION: THE OBJECTIVES OF DOCUMENT

DOCUMENT REQUESTS: STEP-BY-STEP Preparatory Steps 410

DISCLOSURE RULES AND LIMITATIONS

WRITTEN DISCOVERY 385 INTRODUCTION: REENGINEERING THE DISCOVERY

DEPOSITIONS AND WORKING

ETHICS IN LITIGATION 605 APPENDIX B

INTRODUCTION: IMPORTANCE OF ETHICS 605 FEDERAL RULES OF PROCEDURE FOR THE

■ What civil procedure is

■ Why procedural law is important

■ What the main steps in a lawsuit are

■ What common lawsuit terminology

THE IMPORTANCE OF PROCEDURE

To make the material in this text as meaningful as possible, we begin by

Figure 1–1 Phases of a Lawsuit

Pleadings—The complaint is part of what we will call the pleadings task, in

Discovery— Discovery refers to the procedures used to locate evidence and

ETHICAL ETIQUETTE continued

The diversity of tasks a litigation paralegal performs is astounding. They in-

Adjudicate Injunction Pleading

1. Learning the procedural rules is important be- c. discovery documents.

FILL IN THE BLANKS

■ What a court is and where its power

■ What kinds of courts there are

■ A few procedural tools and concepts

■ How to find out what procedures are

Your firm’s client received minor injuries in an automobile collision. Your

Your Local Notes

partments, carries them out. Courts—the judicial branch—apply them to in-

Your Local Notes

SUPREME COURT OF THE

United States Courts of Appeals United States Court of Appeals

Source: United States Administrative Office of Courts.

The Thirteen Federal Judicial Circuits

KANSAS MISSOURI ond

TENNESSEE NORTH CAROLINA

The party who began the appeal—the appellant—furnishes to the court a

Figure 2–3 Hierarchy of State Judicial Systems

THE SUPREME COURT

(Court of final resort. Some states call it Court of Appeals,

(Only 23 of the 50 states have intermediate appellate courts,

(Highest trial court with general jurisdiction. Some states call

(Also called Family Court or

Source: Law and the Courts, 20 (American Bar Association, 1974).

tens of thousands of cases in a year, and receives millions of pages of filings, it

Your Local Notes

CITY AND SMALL CLAIMS COURTS Putting It

WHICH COURT DO I SUE IN?

GENERAL QUESTIONS OF FEDERAL PROCEDURE