Presentation on theme: "NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Presented by the Omaha Bar Association Young Lawyers Division Introduction/Conclusion:"— Presentation transcript:
NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Presented by the Omaha Bar Association Young Lawyers Division Introduction/Conclusion: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock Presenters: Vicky Buter, Kutak Rock Matt Reilly, Erickson Sederstrom Ken Wentz III, Jackson Lewis Joshua Yambor, Woodke & Gibbons Judicial Perspective: Hon. Patricia Lamberty
NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Introduction: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock
OUTLINE 1.Y OU ' VE F ILED S UIT, N OW W HAT ?: C OMPLETING S ERVICE, R ESPONDING TO P LEADINGS, AND D OING D ISCOVERY 1.T HE L IABILITY O CTAGON : P INPOINTING THE D ISPUTE AND D ETERMINING L IABILITY 2.S TICKER S HOCK : P ROVING D AMAGES, C ALCULATING L OST I NCOME, AND S UPPORTING E XPENSES 3.T AKE M E TO THE O THER S IDE : I DENTIFYING O PPOSING S TRATEGY, F INDING W EAKNESSES, AND A NTICIPATING D EFENSES 4.I F Y OU C AN T ALK THE T ALK, T HEN W ALK THE W ALK : P REPARING FOR T RIAL 5.S HOW & T ELL : U SING P HYSICAL, D EMONSTRATIVE, AND D OCUMENTARY E VIDENCE 6.W HOOPS ! D ID I D O T HAT ?: D ISCUSSING L ITIGATION M ISTAKES AND C LEANING U P THE M ESS 7.T HE W AR IS O VER : F INISHING U P A FTER T RIAL 8.T HINGS T HAT M AKE Y OU G O H MMMMMM : A NSWERING Q UESTIONS T AKEAWAYS C ONCLUSION /T HANK Y OU
Do not file suit too fast. Determine whether a viable claim exists or what has to be done to make it viable. Determine who are the proper parties to the action. Determine “where” the action must be brought. Anything you have to do before filing claims (i.e. exhaustion of administrative remedies)? 6
Utilize the applicable jury instructions to plead elements. Detailed allegations – use as RFA’s. Verify? Client review Do not cut and paste 7
Proofread Research – legal and otherwise Include praecipe Summons Service Litigation hold First appearance fee 8
Victoria H. Buter Kutak Rock LLP Responding to Pleadings You’ve been served – now what?
Calendar response deadline Issue litigation hold Removal Can you remove? Do you want to remove? Responding to Pleadings You’ve been served – now what?
Arbitration Can you compel Arbitration? Do you want to? Motion to Dismiss Is there a valid Motion to Dismiss? Personal Jurisdiction Failure to State a Claim Should a Motion to Dismiss be filed? Points to consider Answer You’ve been served – now what?
What Discovery should I serve? Requests for Documents? Interrogatories? Requests for Admissions? Timing of Discovery Depositions Initial Discovery
S TICKER S HOCK : P ROVING D AMAGES, C ALCULATING L OST I NCOME, AND S UPPORTING E XPENSES Joshua Yambor
S TICKER S HOCK : P ROVING D AMAGES, C ALCULATING L OST I NCOME, AND S UPPORTING E XPENSES Proving Damages Medical expenses Jury Instructions & Rules of Evidence Fair, Reasonable and Necessary What/Who do I need to prove Stipulations? Iowa v. Nebraska Lost Income Past/Future Loss of Earning Capacity – Experts What/Who do I need to prove Get your documents: Tax returns, W-9s, employment records
The Liability Octagon: PINPOINTING THE DISPUTE AND DETERMINING LIABILITY MATTHEW B. REILLY ERICKSON | SEDERSTROM
What Is the Claim? Plaintiffs: Listen to your client They don’t know what legal claim they have. Defendants: Read the Complaint and talk to your client Has the Plaintiff alleged sufficient facts to satisfy each element of the claim? What facts are going to be in dispute? E| S
What are my defenses or potential counterclaims? Affirmative Defenses: In pleading to a preceding pleading, a party shall set forth affirmatively 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, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (Neb. Ct. R. Pldg. § ) Also includes immunity and other common law defenses. In an insurance defense case, be mindful of the scope of your retention when contemplating a counterclaim. E| S
How do the defenses affect the case? Some defenses are completely exculpatory and on the pleadings Immunities Statute of limitations Contractual releases Value of the case: 0 Some only create fact questions or require proof Contributory negligence Assumption of risk Contractual defenses Value of the case: proportional E| S
Third Party Liability Is the named defendant liable? Are there any other potentially liable parties? Under what theory? Be mindful of the statute of limitations. E| S
What are the claimed damages? Economic vs. non-economic What figures, if anything, are specially pleaded? No contest of liability Offer to Confess Judgment Personal injury Soft tissue (subjective) or objective complaints? Does the law support the prayer for relief? Be aware of development in case law E| S
Know your surroundings Who is your judge? How does he or she operate? What forum are you in? What would your prospective jury pool look like? Who is opposing counsel? E| S
Victoria H. Buter Kutak Rock LLP Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
Don’t underestimate your opponent Identify elements of proof for claims and defenses Be creative Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
Use the resources readily available to you Talk to your client (and listen) Talk to potential witnesses (where appropriate) Review documents and testimony from your opponent’s perspective Look at documents in isolation Look at publicly available documents regarding your client, the opposing party and subject of the case Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
Don’t replace fact with fantasy Question your own case Don’t believe everything your client tells you Look for gaps in what your client is telling you Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
If you can Talk the Talk, then Walk the Walk PREPARING FOR TRIAL MATTHEW B. REILLY ERICKSON | SEDERSTROM
Create a Theme and Pinpoint your Theory Start early! Keep things clear and concise This is your ultimate message to the court or jury Be flexible Need to adapt to unforeseen developments E| S
Elements of your Claim or Defense Forget about winning or losing for a moment What do I need to do to get my claim to the jury? What do I need to do to take a claim away from the jury? Go for the win - write your closing If I can say this to the jury, I will win. What evidence is necessary to be able to say what I need to say to win? What testimony is necessary? E| S
Evidence Prep Identify what you need to get into evidence to win the case. Be sure to cover each and every claim or defense Identify how you’re going to get that into evidence. What is needed for authentication, foundation. Hearsay concerns? E| S
Witness Prep Review depositions Also review all written or recorded statements and any other accounts Testifying and non-testifying witnesses Review reports Factual and expert Confirm witness availability In-person meetings with important witnesses E| S
Briefs and Arguments What does the court prefer? How complex is the case? Outline at a minimum What are the issues? What law applies? Nebraska Civil Jury Instructions E| S
Setting the Tone Voir Dire Identify who you do and do not want. What questions will assist in creating the ideal jury pool. Opening Statement First chance to outline the theory and establish the theme Only make one first impression E| S
Pretrial Motions Motions in Limine Be selective Narrowly confined to specific, important issues Maintain credibility Daubert/Schafersman I Be sure you’ll win E| S
Miscellaneous Make sure your witnesses know where they’re going and what they should wear Write everything out Evidence checklists Direct/cross examination Opening/closing Objections to exhibits and anticipated testimony Have copies E| S
S HOW & T ELL : U SING P HYSICAL, D EMONSTRATIVE, AND D OCUMENTARY E VIDENCE Joshua Yambor
S HOW & T ELL : U SING P HYSICAL, D EMONSTRATIVE, AND D OCUMENTARY E VIDENCE Physical, Demonstrative & Documentary Evidence – What do I need to prove my case? Medical records and bills, Reports, Photographs, etc.. – Is this evidence helpful? – How do I to get this exhibit into evidence? – Be prepared! – Rules of Evidence – Self-Authenticating – Records custodians – Physicians – Stipulations Use of Depositions
S HOW & T ELL : U SING P HYSICAL, D EMONSTRATIVE, AND D OCUMENTARY E VIDENCE Is the witness unavailable? Stipulations Demonstrative Exhibits - Will it assist the jury? - Get your equipment reserved (make sure it works) (OBA Rents!) - Disclose it to the other side (and the judge!)
W HOOPS ! D ID I D O T HAT ?: D ISCUSSING L ITIGATION M ISTAKES AND C LEANING U P THE M ESS Moving to Amend a pleading... then failing to file the Amended Pleading when the Motion is granted General Discussion
Motion for new trial Motion for JNOV (must ask for directed verdict) Motion for Fees? Costs? Appeal? 40
Takeaways Prepare, prepare, prepare Know your calendar What/Who do I need; fair, reasonable, and necessary Know your client, know the law and know where you are Before drafting a complaint, fully research the opposing party, including social media sites. When drafting a complaint, use short sentences, similar to requests for admission. During trial, make sure you make a motion for directed verdict to preserve your ability to file a Motion for JNOV post-trial. Be Prepared!
T HINGS T HAT M AKE Y OU G O H MMMMMM : Questions?
NSBA Annual Meeting Friday, October 10, 2014 Litigation Essentials: Step-By-Step Conclusion: Katie Kotlik, Abrahams Kaslow Homero Vela, Kutak Rock