Chapter 6 Litigation Documents Summons, Complaint, Answer & Discovery Documents

The Summons Process = Process = Summons & Complaint Summons & Complaint Service of Process Service of Process Presenting the summons & complaint to defendant Presenting the summons & complaint to defendant

Summons Summons Fulfills due process requirements Noticing a defendant requires: Noticing a defendant requires: 1. original complaint and copy of summons filed with court 1. original complaint and copy of summons filed with court 2. summons issued by court 2. summons issued by court 3. summons & complaint both served on defendant 3. summons & complaint both served on defendant 4. process server must be over 18 & not a party to action 4. process server must be over 18 & not a party to action 5. affidavit of service, called Return of Service, filled out by process server 5. affidavit of service, called Return of Service, filled out by process server 6. file Return of Service filed with the court 6. file Return of Service filed with the court Service by Publication Service by Publication Generally, requires court order Generally, requires court order

DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSION JOHN DOE,) Plaintiff.) vs. )SUMMONS ) Phillip Duncan,) Defendant.) _____________________) NOTICE!! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND WIThIN 20 DAYS. READ THE INFORMATION 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. Daily Attorney for Plaintiff

The Complaint Five Elements: Five Elements: 1. Caption 1. Caption 2. Jurisdiction 2. Jurisdiction 3. Cause of Action 3. Cause of Action 4. Ad Damnum Clause 4. Ad Damnum Clause 5. Subscription 5. Subscription

Caption Attorney’s Heading » Attorney’s Heading » Court Hearing Matter » Court Hearing Matter » Names of Parties » Names of Parties » Title of Document Title of Document Attorney Name FIRM NAME Street Address City, State Telephone Contact Attorney for Plaintiff/Defendant DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSION JOHN DOE,) Plaintiff.) vs. )SUMMONS ) Phillip Duncan,) Defendant.) __________________)

Jurisdiction Types of jxn.: Types of jxn.: In personam In personam Address of π/Δ Address of π/Δ In rem In rem Place of controversy Place of controversy Quasi in rem Quasi in rem Note: Note: Federal Complaints require (Jurisdictional Statement) (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 …

Cause of Action Claim for Relief Claim for Relief Examples: Examples: Negligence» Negligence» Negligence per se Negligence per se Breach of Contract Breach of Contract IIED IIED “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.”

Ad Damnum Clause = Prayer for Relief = Prayer for Relief = Wherefore Clause = Wherefore Clause Wherefore, Plaintiff prays for judgment against the Defendant as follows: 1. For general damages in excess of $10, according to proof; 2. For loss of earnings and earning capacity according to proof; 3. For medical expenses, future medical expenses and all incidental expenses according to proof; 4. For interest from the date of accident to the time of judgment; 5. For costs of suit incurred herein; 6. For attorney fees incurred herein, and 7. For such other and further relief as the Court deems proper.

Subscription Signature line Signature line __________________ Attorney Name State Bar No Firm Name Address Attorney for Plaintiffs/Defendants

Numbering Paragraphs Numbering Paragraphs Fact Pleading vs. Notice Pleading Fact Pleading vs. Notice Pleading Notice Pleading = Notice Pleading = Notice of claims Notice of claims Fact Pleading = Fact Pleading = Set forth prima facie case in CM Set forth prima facie case in CM Verified Complaints Verified Complaints Plaintiff attests to validity Plaintiff attests to validity General Allegations (Allegations All Defendants) I. Plaintiffs are and at all times have been residents of Clark County, State of XXX. II. Defendants are now and at all times relevant have been residents of Clark County, State of XXX. III. On or about October 23, 3004, 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.

Tort Causes of Action Tort = Civil Wrong Tort = Civil Wrong Intentional Torts: Intentional Torts: Defamation, Libel, Slander Defamation, Libel, Slander Wrongful (False) Imprisonment Wrongful (False) Imprisonment Malicious Prosecution/Abuse of Process Malicious Prosecution/Abuse of Process Trespass & Nuisance Trespass & Nuisance Assault Assault Battery Battery Misrepresentation Misrepresentation Conversion Conversion Intentional Infliction of Emotional Distress Intentional Infliction of Emotional Distress Negligent Torts: Negligent Torts: Negligence: Duty, breach, damages Negligence: Duty, breach, damages Negligence per se: Violation of law Negligence per se: Violation of law Wrongful Death Wrongful Death

Contract Causes of Action Contract = Agreement between parties Contract = Agreement between parties Breach of Contract Breach of Contract Bad Faith Bad Faith Breach of Fiduciary Duty Breach of Fiduciary Duty

Establishing Causes of Action General Allegations General Allegations Jurisdictional statements Jurisdictional statements Facts Facts General Allegations (Against All Defendants) I. Plaintiffs are and at all times relevant have been residents of Clark County, State of Confusion II. Defendants are now and at all times relevant have been residents of Clark County, State of Confusion III. 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.

The Claim: 3-Step Cause of Action Caption Claim: Caption Claim: FIRST CLAIM FOR RELIEF: Negligence 3-Step Cause of Action: 3-Step Cause of Action: Incorporation Paragraph Incorporation Paragraph “Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.” “Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.” Cause of Action 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.” “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 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.” “As a result Defendant’s negligent conduct stated above, Plaintiff has suffered specific damages, including but not limited to medical expenses and lost wages.”

Court Paper Open line indicators Open line indicators /// indicates that the last lines on the page have been intentionally left blank /// indicates that the last lines on the page have been intentionally left blank Pleading Paper Pleading Paper Numbered legal paper Numbered legal paper Standard: 28 lines Standard: 28 lines Used for: pleadings, discovery, other court documents Used for: pleadings, discovery, other court documents

The Answer Answer: Answer: Defendant’s response to Complaint Defendant’s response to Complaint Answer each paragraph of the complaint Answer each paragraph of the complaint E.g., “Defendant hereby admits allegations contained in paragraphs 1, 4, 5 of Plaintiff’s Complaint.” E.g., “Defendant hereby admits allegations contained in paragraphs 1, 4, 5 of Plaintiff’s Complaint.” Responses: Responses: Admit Admit Deny Deny Neither admitted or denied due to lack of knowledge/information Neither admitted or denied due to lack of knowledge/information

Affirmative Defenses & Counterclaims Affirmative Defenses: Affirmative Defenses: Defendant admits that event occurred, but denies liability Defendant admits that event occurred, but denies liability No damages claimed No damages claimed Counterclaims: Counterclaims: Defendant’s claim for damages against Plaintiff Defendant’s claim for damages against Plaintiff

Discovery Discovery = period to “Discover” facts Discovery = period to “Discover” facts Plaintiff serves discovery on defendant Plaintiff serves discovery on defendant Defendant serves discovery on plaintiff Defendant serves discovery on plaintiff Purposes of discovery: Purposes of discovery: To clarify issues To clarify issues Eliminate surprise Eliminate surprise Limit the length of the trial Limit the length of the trial All discovery is conducted under oath

Discovery Techniques Interrogatories Interrogatories Written questions Written questions Requests for Admissions Requests for Admissions Asks opponent to admit certain facts Asks opponent to admit certain facts E.g., “Admit that you were the driver of the vehicle, license number 123 TYU, on November 4, 2004 at 10:00 p.m.” E.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 Documents Requests for Production and Inspection of Documents Asks other party for documents (medical records, etc.) Asks other party for documents (medical records, etc.) Depositions Depositions Oral questions Oral questions

Interrogatories Interrogatories = written questions Interrogatories = written questions Limited Discovery: Limited Discovery: Some states limit the number of interrogatories or provide form interrogatories Some states limit the number of interrogatories or provide form interrogatories Format Format Caption Caption Instructions Instructions Include instruction providing that interrogatories are continuing in nature Include instruction providing that interrogatories are continuing in nature Interrogatories (Questions) Interrogatories (Questions) Discovery is continuing in nature

Answers to Interrogatories Procedure: Procedure: Date Stamp Interrogatories Date Stamp Interrogatories Tickle date due (and prior) Tickle date due (and prior) Responding: Responding: Attorney responds Attorney responds Client responds by him/herself Client responds by him/herself Client responds with help Client responds with help Objections: Objections: Interrogatories may be objected to based on relevance, burden, etc. Interrogatories may be objected to based on relevance, burden, etc. Extension of Time Extension of Time Should be requested IN ADVANCE of due date Should be requested IN ADVANCE of due date

Interrogatory Techniques Use formbooks & templates Technique One: Personal information Technique Two: Financial information Technique Three: Facts

Requests for Admissions Request for admission of facts Request for admission of facts Establishes facts for trial Establishes facts for trial E.g., “Admit that you are the owner of a blue Chevrolet, license no. 897 IUO” E.g., “Admit that you are the owner of a blue Chevrolet, license no. 897 IUO” Responding to Requests Responding to Requests Date stamp Date stamp Tickle due date Tickle due date If response is not timely (30 days), the request is deemed admitted!!!! If response is not timely (30 days), the request is deemed admitted!!!!

Request for Admissions: Responses Admitted Admitted Denied Denied Neither admitted nor denied due to lack of sufficient information with which to respond Neither admitted nor denied due to lack of sufficient information with which to respond Specific reason must be given Specific reason must be given Neither admitted nor denied due to vagueness of the request Neither admitted nor denied due to vagueness of the request Omit a response Omit a response NOT a good idea NOT a good idea May be deemed admitted May be deemed admitted

Request for Admission Techniques Use formbooks & templates Technique One: Verify or corroborate interrogatories E.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 liability Technique Three: Force the party to commit

Requests for Production Production of: Documents (medical reports, etc.) Documents (medical reports, etc.) Pictures, designs/drawings Pictures, designs/drawings Contracts Contracts Corporate records Corporate records Discoverable Materials: Discoverable Materials: Materials relevant to litigation that: Materials relevant to litigation that: Do not violate 5 th amendment Do not violate 5 th amendment Are not privileged Are not privileged Request 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.

Non-Discoverable Material Non-discoverable material: Non-discoverable material: Attorney work-product Attorney work-product Material produced in anticipation of litigation Material produced in anticipation of litigation Privileged information Privileged information Attorney-client privilege: Attorney-client privilege: Applies to paralegal and other staff: Applies to paralegal and other staff: 1. Communication must be private 1. Communication must be private 2. Must remain private 2. Must remain private 3. Must fall within scope of paralegal’s duties 3. Must fall within scope of paralegal’s duties Production of Documents: Production of Documents: Withhold attorney-client documents Withhold attorney-client documents Withhold document prepared in anticipation of litigation Withhold document prepared in anticipation of litigation

Responding to Production Date Stamp Requests Date Stamp Requests Tickle date due (and prior for preparation) Tickle date due (and prior for preparation) Producing Documents: Producing Documents: Request documents from client Request documents from client Review them carefully Review them carefully For privileged matters, other non-discoverable docs For privileged matters, other non-discoverable docs Review for discrepancies Review for discrepancies Motion to Compel Motion to Compel Other party may file a Motion to Compel for force answers/responses if answers are non-responsive, privileged is claimed, etc. Other party may file a Motion to Compel for force answers/responses if answers are non-responsive, privileged is claimed, etc.

Request for Production Inspection Inspect documents produced Inspect documents produced 1. Be thorough 1. Be thorough 2. When in doubt, copy 2. When in doubt, copy Inspecting is like looking for a needle in a haystack, so remember it’s an important job: Your inspection could win or lose the case!

Verification Answers to discovery must Answers to discovery must be verified Verification State 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. _______________ Name SUBSCRIBED AND SWORN to before me this ___ day of ______. ____________ NOTARY PUBIC in and for said County and State

Depositions Depositions = oral questions Depositions = oral questions Setting: Setting: Both attorney’s present Both attorney’s present Court reporter transcribes testimony Court reporter transcribes testimony Deposition testimony is under oath Deposition testimony is under oath

Preparing for the Deposition 1. Set the deposition 1. Set the deposition Contact attorneys, witness Contact attorneys, witness Agree on time and place (generally) Agree on time and place (generally) Send follow-up letter memorializing agreement Send follow-up letter memorializing agreement 2. Send Deposition Notice and Subpoena 2. Send Deposition Notice and Subpoena Subpoena witness to be deposed Subpoena witness to be deposed 3. Prepare deposition questions 3. Prepare deposition questions Resources: Resources: Pleadings Pleadings Discovery documents Discovery documents Research sources (Am.Jur. Pleadings and Practice, etc.) Research sources (Am.Jur. Pleadings and Practice, etc.)

Deposition Follow-Up Transcript Review Transcript Review Deponent should review transcript Deponent should review transcript Sign under oath Sign under oath Deposition Index Deposition Index Alphabetical index of subjects covered in deposition Alphabetical index of subjects covered in deposition Generally a matter of computer software Generally a matter of computer software

Deposition Summary Deposition Summary = Digest Deposition Summary = Digest Purpose: Purpose: Relate relevant material Relate relevant material 2. Don’t alter the context of the material 2. Don’t alter the context of the material 3. Avoid editorializing in the summary 3. Avoid editorializing in the summary Methods: Methods: 1. Topical Summary 1. Topical Summary 2. Page-by-Page Summary 2. Page-by-Page Summary