2 §6.1 The Summons Process = Service of Process Summons & Complaint Presenting the summons & complaint to defendant
3 Fulfills due process requirements SummonsFulfills due process requirementsNoticing a defendant requires:1. original complaint and copy of summons filed with court2. summons issued by court3. summons & complaint both served on defendant4. process server must be over 18 & not a party to action5. affidavit of service, called Return of Service, filled out by process server6. file Return of Service filed with the courtService by PublicationGenerally, requires court order
4 DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSIONJOHN DOE, )Plaintiff. )vs. ) SUMMONS)Phillip Duncan, )Defendant. )_____________________ )NOTICE!! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOURESPOND WIThIN 20 DAYS. READ THEINFORMATION BELOW.TO THE DEFENDANT(S): A civil complaint has been filed by the Plaintiff against you for the relief set forth in the Complaint.1. If you intend to defend this lawsuit, within 20 days after this Summons is served on you, exclusive of the day of service, you must do the following:a. File with the Clerk of this Court, whose address is shown below, a formal written response to the Complaint in accordance with the rules of the Court with the appropriate filing fee.b. Serve a copy of your request upon the attorney whose name is shown below.2. Unless you respond, your default will be entered upon application of the Plaintiff and this Court may enter a judgment against you for the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the Complaint.3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time.4. The State of Confusion, its political subdivisions, agencies, officers, employees, board members, commission members and legislators, each have 45 days after service of this Summons within which to file an answer or other responsive pleading to the Complaint.CLERK OF COURT____________________________ By: _____________________________________Sue M. DailyAttorney for Plaintiff
5 §6.2 The Complaint Five Elements: 1. Caption 2. Jurisdiction 3. Cause of Action4. Ad Damnum Clause5. Subscription
6 DISTRICT COURT OF CLARK COUNTY CaptionDISTRICT COURT OF CLARK COUNTYSTATE OF CONFUSIONJOHN DOE, )Plaintiff. )vs. ) SUMMONS)Phillip Duncan, )Defendant. )______________ )Court Hearing Matter »Names of Parties »Title of Document »
7 Jurisdiction Types of jurisdiction: In personam In rem Quasi in rem Address of π/ΔIn remPlace of controversyQuasi in remNote:Federal Complaints require(Jurisdictional Statement)1. Plaintiff is now and at all times relevant has been a resident of El Paso County, Colorado.2. Defendant is now and at all times has been a resident of Kiowa County, Colorado.3. The accident in controversy occurred in Denver County, Colorado.4. The defendant owns property in Denver County, Colorado, which is subject to attachment for damages awarded plaintiff in Green v. Jones …
8 (Allegations All Defendants) Numbering ParagraphsFact Pleading vs. Notice PleadingNotice Pleading =Notice of claimsFact Pleading =Set forth prima facie case in CMVerified ComplaintsPlaintiff attests to validityGeneral Allegations(Allegations All Defendants)I.Plaintiffs are and at all times have beenresidents of Clark County, State of XXX.II.Defendants are now and at all timesrelevant have been residents of ClarkCounty, State of XXX.III.On or about October 23, 3004, Defendantwas driving a taxi, in which Plaintiff(s)were passengers. Defendant, travelingnorth on Sahara Blvd., was traveling 60m.p.h. in a 30 m.p.h. zone.
9 Cause of Action Claim for Relief Examples: Negligence » Negligence per seBreach of ContractTrespassEtc.“Defendant had a duty to properly obey traffic laws of the state and county where the accident occurred, and by failing to do so acted in a negligent manner.”
10 Ad Damnum Clause = Prayer for Relief = Wherefore Clause Wherefore, Plaintiff prays for judgmentagainst the Defendant as follows:For general damages in excess of $10, according to proof;For loss of earnings and earning capacity according to proof;For medical expenses, future medical expenses and all incidental expenses according to proof;For interest from the date of accident to the time of judgment;For costs of suit incurred herein;For attorney fees incurred herein, andFor such other and further relief as the Court deems proper.
11 Subscription Signature line __________________ Attorney Name State Bar NoFirm NameAddressAttorney for Plaintiffs/Defendants
12 §6.2 Tort Causes of Action Tort = Civil Wrong Intentional Torts: Defamation, Libel, SlanderWrongful (False) ImprisonmentMalicious Prosecution/Abuse of ProcessTrespass & NuisanceAssaultBatteryMisrepresentationConversionIntentional Infliction of Emotional DistressNegligent Torts:Negligence: Duty, breach, damagesNegligence per se: Violation of lawWrongful Death
13 Contract Causes of Action Contract = Agreement between partiesBreach of ContractBad FaithBreach of Fiduciary Duty
14 Establishing Causes of Action General AllegationsJurisdictional statementsFactsGeneral Allegations(Against All Defendants)I.Plaintiffs are and at all times relevant have been residents of Clark County, State of ConfusionII.Defendants are now and at all times relevant have been residents of Clark County, State of ConfusionIII.On or about October 23, 2004, Defendant was driving a taxi, in which Plaintiff(s) were passengers. Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.IV.At the intersection of Sahara and Paradise Road, Defendant failed to stop for a red light.V.Defendant’s taxi subsequently struck a vehicle traveling south bound on Paradise Road. The vehicle which was struck possessed the right of way.
15 §6.5 The Claim: 3-Step Cause of Action Caption Claim:FIRST CLAIM FOR RELIEF:Negligence3-Step Cause of Action:Incorporation Paragraph“Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.”Cause of Action“Defendant had a duty to properly obey the traffic laws of the state and county where the accident occurred, and by failing to do so acted in a negligent manner.”Alleges Damages“As a result Defendant’s negligent conduct stated above, Plaintiff has suffered specific damages, including but not limited to medical expenses and lost wages.”
16 Proper Court Paper Open line indicators Pleading Paper /// indicates that the last lines on the page have been intentionally left blankPleading PaperNumbered legal paperStandard: 28 linesUsed for: pleadings, discovery, other court documents
17 §6.8 The Answer Answer: Responses: Defendant’s response to Complaint Answer each paragraph of the complaintE.g., “Defendant hereby admits allegations contained in paragraphs 1, 4, 5 of Plaintiff’s Complaint.”Responses:AdmitDenyNeither admitted or denied due to lack of knowledge/information
18 Affirmative Defenses & Counterclaims Defendant admits that event occurred, but denies liabilityNo damages claimedCounterclaims:Defendant’s claim for damages against Plaintiff
19 All discovery is conducted under oath Discovery = period to “Discover” factsPlaintiff serves discovery on defendantDefendant serves discovery on plaintiffPurposes of discovery:To clarify issuesEliminate surpriseLimit the length of the trialAll discovery is conducted under oath
20 Discovery Techniques Interrogatories Requests for Admissions Written questionsRequests for AdmissionsAsks opponent to admit certain factsE.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on November 4, 2004 at 10:00 p.m.”Requests for Production and Inspection of DocumentsAsks other party for documents (medical records, etc.)DepositionsOral questions
21 Discovery is continuing in nature §6.12 InterrogatoriesInterrogatories = written questionsLimited Discovery:Some states limit the number of interrogatories or provide form interrogatoriesFormatCaptionInstructionsInclude instruction providing that interrogatories are continuing in natureInterrogatories (Questions)Discovery is continuing in nature
22 §6.13 Answers to Interrogatories Procedure:Date Stamp InterrogatoriesTickle date due (and prior)Responding:Attorney respondsClient responds by him/herselfClient responds with helpObjections:Interrogatories may be objected to based on relevance, burden, etc.Extension of TimeShould be requested IN ADVANCE of due date
24 §6.16 Requests for Admissions Request for admission of factsEstablishes facts for trialE.g., “Admit that you are the owner of a blue Chevrolet, license no. 897 IUO”Responding to RequestsDate stampTickle due dateIf response is not timely (30 days), the request is deemed admitted!!!!
25 §6.17 Request for Admissions: Responses AdmittedDeniedNeither admitted nor denied due to lack of sufficient information with which to respondSpecific reason must be givenNeither admitted nor denied due to vagueness of the requestOmit a responseNOT a good ideaMay be deemed admitted
26 §6.18 Request for Admission Techniques Use formbooks & templatesTechnique One:Verify or corroborate interrogatoriesE.g., Admit or that you have been an employee of the U.S. Postal Service for eight (8) years.Technique Two:Gives choices, or degrees of liabilityTechnique Three:Force the party to commit
27 §6.20 Requests for Production Production of:Documents (medical reports, etc.)Pictures, designs/drawingsContractsCorporate recordsDiscoverable Materials:Materials relevant to litigation that:Do not violate 5th amendmentAre not privilegedRequest for Production:21. Produce any and all documents that evaluate compliance by the defendant with the terms of the July 16, 2001 contract which is in dispute in this litigation.
28 §6.22 Non-Discoverable Material Attorney work-productMaterial produced in anticipation of litigationPrivileged informationAttorney-client privilege:Applies to paralegal and other staff:1. Communication must be private2. Must remain private3. Must fall within scope of paralegal’s dutiesProduction of Documents:Withhold attorney-client documentsWithhold document prepared in anticipation of litigation
29 §6.23 Responding to Production Date Stamp RequestsTickle date due (and prior for preparation)Producing Documents:Request documents from clientReview them carefullyFor privileged matters, other non-discoverable docsReview for discrepanciesMotion to CompelOther party may file a Motion to Compel for force answers/responses if answers are non-responsive, privileged is claimed, etc.
30 Request for Production: Inspection Inspect documents produced1. Be thorough2. When in doubt, copyInspecting is like looking for a needle in a haystack, so remember it’s an important job:Your inspection could win or lose the case!!!
31 Verification of Discovery Answers to discovery must usually be verifiedVerificationState of Nowhere ))County of Who )I, _____, being first duly sworn, deposes and says:That I am the Plaintiff in the above-entitled action; that I have read the foregoing ANSWERS TO INTERROGATORIES and know the contents thereof; the same is true of my own knowledge except as to those matters therein stated on information and belief and, as to those matters, I believe them to be true._______________NameSUBSCRIBED AND SWORNto before me this ___ dayof ______.____________NOTARY PUBIC in and forsaid County and State
32 §6.24 Depositions Depositions = oral questions Setting: Both attorney’s presentCourt reporter transcribes testimonyDeposition testimony is under oath
33 §6.25 Preparing for the Deposition 1. Set the depositionContact attorneys, witnessAgree on time and place (generally)Send follow-up letter memorializing agreement2. Send Deposition Notice and SubpoenaSubpoena witness to be deposed3. Prepare deposition questionsResources:PleadingsDiscovery documentsResearch sources (Am.Jur. Pleadings and Practice, etc.)
34 §6.26 Deposition Follow-Up Transcript ReviewDeponent should review transcriptSign under oathDeposition IndexAlphabetical index of subjects covered in depositionGenerally a matter of computer software
35 §6.28 Deposition Summary Deposition Summary = Digest Purpose: Methods: Relate relevant material2. Don’t alter the context of the material3. Avoid editorializing in the summaryMethods:1. Topical Summary2. Page-by-Page Summary