Grading Rubrics for Law 11 - Civil Litigation
#C - Dogbite suit

grading rubric
A (90-100) all elements of the pleading present
B(80-90) one essential element of the pleading missing
C(70-80) two essential elements of the pleading missing
D(60-70) more than two essential elements of the pleading missing

here is sample lawsuit, provided by one of our excellent paralegal students

Attorney for Plaintiff, JUDITH C. DAVIS



SUPERIOR COURT FOR THE STATE OF CALIFORNIA,
FOR THE COUNTY OF LOS ANGELES, Unlimited Jurisdiction
Case No. LC50761
COMPLAINT FOR STRICT LIABILITY and NEGLIGENCE
JUDITH C. DAVIS,
Plaintiff,
vs.
RANDY GASCHLER and LINDA GASCHLER, and DOES 1 through 50, inclusive Defendants

Plaintiff alleges and for causes of action as follows:
1. Plaintiff, JUDITH C. DAVIS, is an individual and is now, and at all times mentioned in this complaint was, a resident of Los Angeles County, California.
2. Defendant RANDY GASCHLER and LINDA GASCHLER are now, and at all times mentioned in this complaint was and is a resident of city of San Fernando, County of Los Angeles, State of California.
3. Plaintiff does not know the true names of defendants DOES 1 through 50, inclusive, and therefore sues them by those fictitious names. [Optionally, in addition to language in charging allegations that includes fictitiously named defendants: Plaintiff is informed and believes, and on the basis of that information and belief alleges, that each of those defendants was in some manner negligently and proximately responsible for the events and happenings alleged in this complaint and for plaintiffs injuries and damages.] Plaintiff will amend this complaint to allege their true names and capacities when ascertained.
FIRST CAUSE OF ACTION
(Strict Liability Against Defendants, RANDY GASCHLER and LINDA GASCHLER)
4. Plaintiff incorporates in this Cause of action Paragraphs 1 through 50 herein the same as though fully set out in this Cause of Action at length..
5. At all times mentioned in this complaint, defendant RANDY GASCHLER and LINDA GASCHLER were, and still are the owner of certain German Shepard dog, which caused the injuries and damage hereinafter complained of. This dog had a vicious nature, disposition, and propensity, which was known or should have been known by defendant.
6. On or about January 7, 1998, at about 1:00 PM, the dog was lying on Missouri Flat Road. The dog was being assisted for injuries sustained in an automobile accident by two individuals. At this time and place, plaintiff, JUDITH C. DAVIS stopped and proceeded to assist in confining the dog for transport when Plaintiff was suddenly and with no warning viciously attacked by the dog. The dog lunged and severely bit the Plaintiff about the hand.
7. As a proximate result of the actions of defendant’s dog, plaintiff sustained the following injuries, all to his damage in the sum of $75,000.00.
8. As a further proximate result of the actions of defendant’s dog, plaintiff was required to and did employ physicians and surgeons to examine, treat, and care for her injuries and incurred additional medical expenses for hospital bills and other incidental medical expenses in the approximate amount of $40,000.00 to date.
8. Plaintiff is informed and believes, and on such information and belief alleges, that she will incur some additional medical expenses, the exact amount of which is unknown. Plaintiff will ask leave of court to amend her complaint to insert the correct amount of such medical expenses when the same has been ascertained.
9. As a further proximate result of the actions of defendant’s dog, plaintiff has suffered a loss of income and earnings, and her earning ability is, and will remain, impaired and diminished by reason thereof, and she will continue to suffer a further loss of earnings and income for an indefinite period of time, and plaintiff prays leave to amend this complaint and insert the true amounts when the same shall be ascertained.
SECOND CAUSE OF ACTION
(Negligence Against Defendants, RANDY GASCHLER and LINDA GASCHLER)
10. Plaintiff, LINDA C. DAVIS, incorporates in this Cause of Action Paragraphs 1 through 10, herein the same as though fully set out in this Cause of Action at length.
11. Defendants negligently failed to have the dog under restraint or to take any other precautions to prevent the dog from attacking plaintiff or other persons. Defendants were also negligent in that they failed to confine their dog to their yard and to take other measures to keep the property secure to keep dog from escaping and unattended causing said dog to become vicious towards strangers.
WHEREFORE, Plaintiff prays for judgment against the defendants, and each of them, as follows:
1. For general damages, as proven;
2. For medical and related expenses, past and future, as proven;
3. For loss of earnings and earning capacity as proven;
4. Interest according to law;
5. For costs of suit incurred;
6. For such other and further damages as may be discovered prior to judgment; and
7. For such other and further relief as the Court may deem just and proper.


DATED: November 3, 1999

(signature)
_____________________________
Attorney for Plaintiff

 


VERIFICATION

I, ___, am a ___in the above-entitled action. I have read the foregoing ___ and know the contents thereof. The same is true of my own knowledge, except as to those matters, which are therein alleged on information and belief, and as to those matters, I believe it to be true.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Long Beach, California.

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#D Administrative Remedies

grading rubric for #10 - Administrative Remedies

A(90-100) - got all essential parts of the arguments to allow inspections and why they are different than a "search and seizure" criminal case
B(80-90) - missed one essential parts of the argument
C(70-80) - missed two essential parts of the argument
D(60-70) - missed three or more essential parts of the argument
the argument is:
1. inspections are not the same as a "criminal search and seizure"
2. inspections are a "visitation or survey to determine whether or not conditions dangerous to health exist"
3. Unlike police searches, inspections are not cnduction with a partiular aim of uncovering evidence for purposes of criminal prosecution.
4. the Supreme Court has defined the legal rights surrounding safety and health inspections differenctly than police searches.
5. The 4th amendment protects private citizens from "unreasonable search and seizures" - it protects the expectation of privacy, and against searches intended to present official harassment and arbitrary or improper intrusion by the government into lives of its citizens.
6. Public Health inspections are often random and unnounced. If you needed a search warrant it would have to provide reasonable gounds for suspecting violations had occurred.
7. Such a requirement would be incompatible with the type of routine, random, and unnounced inspections that are basic to health and safety inspections.
8. There is no requirement for probable cause for routine public health inspections.
9. Also there are less stringent adminisrative warrant requirements to be used for health and safety inspections. You just need a pre-existing neutral administrative plan.

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#E Jurisidiction

Grading Rubric # E - apply your knowledge to jurisdiction
A(90-100) - all 12 questions correctly answered
B(80-90) - miss one question above
C(70-80) miss two questions above
D(60-70) miss three questions above

here is sample answer from one of our excellent paralegals
1. Why may a legal entity be a party to a lawsuit without also naming an individual as a party? Under a partnership – sole proprietorships or unincorporated associations.

Are there times when you would want to name both the legal entity and an individual who is the owner of the legal entity as parties to a lawsuit? The “judgment will be binding on the individual as well as the entity.”

Identify a situation where you may want to name both the individual owner and the legal entity as parties. When suing two or more individuals who own a business and “divide any profit or loss of the business.

2. Why do you need to determine the identity of the real party in interest before filing a lawsuit? To “ensure that the parties with the real interest are the ones actually prosecuting the case…”

How would you go about finding the identity of the real party in issue? Two answers: 1) identify, under substantive law, who has the right to that the lawsuit seeks to enfoce and 2) This is not stated anywhere in the book, but I would assume, based on the Los Angeles County Court System that you could identify the party via through research on the Los Angeles Superior Court Web site.

3. What are some of the issues which should be considered in determining whether a party should be joined in a lawsuit? If the “party’s presence is required to grant ‘complete relief’ or if the party has an interest in the action so that the party’s presence is…necessary to protect his interest or the parties absence may expose other parties to double or inconsistent obligations.”

What are the purposes of taking into account such issues? To protect the parties interest in the case, ensure complete relief and prevent dismissal of case.

What should a court do if a party who should be joined in the lawsuit cannot be joined for some reason? First, determine: whether the nonjoined and existing parties will be prejudiced; if an order can minimize any potential prejudice; any judgment without the absent party can be adequate; the plaintiff will have an adequate remedy if the action is dismissed. Then, based on those factors, determine if the suit should either be: dismissed or the absent party can be brought in as a cross complainant.

4. What is the meaning of limited jurisdiction in municipal court? Municipal courts can only hear cases involving claims of $25,000 or less and certain types of cases NOT specific to superior or federal issues.

How many municipal courts do you have in the jurisdiction where your school sits?
Where are they located? For cases under $25,000 and small claims -- two. Sylmar and Sylmar Square (they are “under” the Superior Court).

5. What actions does a federal court have original jurisdiction over? Federal question, diversity of citizenship of theparties.

What does it mean to say that a federal court has original jurisdiction? That the case was originally brought in federal court.

Is original jurisdiction always required in federal court? No.

6. What is the difference between general and limited jurisdiction?
General jurisdiction means a court can hear any case that is not otherwise reserved to another court. Limited jurisdiction means certain courts are limited in the types of cases they hear.

Why is the distinction important? It is important because it can determine where, based on the case subject matter or claim amount, the case will first be heard.

7. What type of actions may be heard in superior court? Matters of $25,000 or more. “Also special cases involving probate, family law, divorce and guardianships.”

Where is the superior court located in the jurisdiction where your school sits? Are there branch courts as well? If so, where are they located. San Fernando Courthouse, San Fernando, CA. Chatsworth Courthouse is the branch.

8. What are the different categories of actions for which diversity jurisdiction is proper? Between: 1) citizens of different states; 2) citizens of a state and citizens/subjects of a foreign state; 3) citizens of different states and in which citizens or subjects of a foreign state are additional parties; 4) foreign state as plaintiff and citizens of a state or of different states.

Give an example of each.
1) A California resident suing an Oregon resident
2) A California resident suing a Japanese citizen
3) Claim against a California company, with owned by a Japanese company
4) Japanese company suing Oregon company

9. Why can domestic relations and probate matters only be raised in state courts and not in federal district courts? Because they are local matters properly raised in state courts.

Are there some policy goals which are better fostered by having these matters heard in state court? In state court, length of time between filing complaint and trial is much shorter than federal court and one judge is used to oversee entire trial.

10. Actions filed in state court may be removed by a defendant to federal court within the 30 day period from the time the defendant had notice of the plaintiff's initial pleading. If an action could properly be brought in federal court, why is there any time limit within which a defendant must remove the action? So the plaintiff has time to defeat removal by 1) add a defendant who is not diverse from the plaintiff or is a citizen of the forum state 2) draft a complaint based on a federal question jurisdiction, if diversity does not exist, to avoid pleading a claim

If the plaintiff merely gave the defendant a copy of the state court pleading, but did not properly serve the defendant with the pleading, does the 30 day period still apply? Maybe. This is determined by state practice.

11. Why is it important for the court to have personal jurisdiction over the defendant? The court can only enforce a judgment against a part if the party was lawfully brought into court and has received notice of the lawsuit.

How does personal jurisdiction differ from subject matter jurisdiction? Personal jurisdiction is the “power of the court to bring a party before it” and subject matter jurisdiction which is the power of the court to hear “particular matters.”

12. In International Shoe Co. v. State of Washington, 326 U.S. 31- (1945), the Court held that where a corporation's "minimum contacts" in the forum state were such that being forced to defend a suit in that state would not offend "traditional notions of fair play and substantial justice," jurisdiction was proper.

What do you think the Court meant by "minimum contacts"? Answer: “Sufficient contact by a defendant with the state attempting to exercise jurisdiction over the defendant.”

Why is the Court concerned about there being sufficient minimum contacts? To ensure due process; enforceability of judgment and determine jurisdiction.

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#F - Pleadings


UR COMPREHENSION

1. T
2. T
3. F
4. T
5. T
6. F
7. T
8. T
9. T
10. T
11. T
12. F
13. F
14. T
15. T
16. T
17. T
18. F
19. T
20. T
21. T
22. T


APPLYING YOUR KNOWLEDGE

1. Format requirements for pleadings are stated in Rule 201 of the California Rules of the Court. The purpose of these rules is to provide uniformity. Local rules may apply and must be checked for variances with Rule 201. The format requirements are:

a. All papers must be typed on 8 ½ by 11 inch opaque paper
b. No font smaller than 12 point
c. Only one side of paper may be used
d. Lines must be 1 ½ or double spaced and numbered consecutively
e. Descriptions of real property, footnotes, and quotations may be single spaced
f. Recycled paper is required for all original papers filed with the court and all copies of papers whether filed with the court or served on other parties.
g. The first page must be formatted as follows:
(1) Name, address, telephone number and state bar number of the attorney for the party must appear on the left hand side commencing with line one
(2) The right hand side between lines one and seven are to left blank for the clerk’s file stamp
(3) Commencing with line eight, the tile of the court shall be listed
(4) Below the title of the case, the names of the parties are on the left hand side and the right hand side the number of the case
(5) Below the number of the case is the type of action

2. The advantages of using judicial forms to file a complaint include the assurance that you have met the necessary pleading requirements and ease of use. The disadvantage is that you must be careful to attach causes of action in order to withstand a demurrer. Some forms are mandatory and others are permissible.

3. All pleading must be signed by the party or the party’s lawyers. In California, unless specifically required by statute, pleadings do not have to be verified. A verified pleading is one signed by the party and declared, under penalty of perjury, as true or believed to be true. If a party chooses to verify a complaint, the answer must be verified.

4. A cross-claim in California is called a counterclaim in the Federal Courts. In Federal Court a claim against a co-defendant is called a cross-complaint and a claim against a third party is called a third-party complaint.

5. A person serving process must establish proof of service. Proof must be in affidavit form. It must be included with the pleading in order to show how, when and by whom service was made. This requirement goes to the constitutional issue of Due Process and failure to properly serve will lead to dismissal of the action.

6. Every complaint must include: Identification of the parties to the action, allegations concerning Doe defendants, allegation of proper venue (optional but suggested), individual causes of action with factual allegations and proper legal elements, prayer for relief.

7. Because Federal Courts are courts of limited jurisdiction, a party seeking jurisdiction must affirmatively plead and demonstrate proper subject matter jurisdiction based on a federal question or diversity of citizenship. Superior Courts in California are courts of general jurisdiction and can hear any case not exclusively limited to municipal courts. Many California counties have unified Superior and Municipal courts.

8. California is a fact pleading state which means that a complaint or cross-complaint must state the facts supporting a cause of action in ordinary and precise language. The federal courts only require “notice pleading,” which is a much more general form of pleading designed to give the opposing party no more notification than the basis of the claim.

9. A cause of action is the basis for relief that claimant is seeking. Without a cause of action, a complaint would have no basis upon which to seek relief.

10. A “prayer for relief” is that section of the complaint that clearly states the relief that the claimant is seeking. The prayer is required in California and is important for two reasons: First, the nature of relief sought can determine the claimant’s right to a jury trial; and, second, in the case of a default judgment, the prayer determines the method by which relief can be obtained and the type of relief that can be awarded.

11. It is always good to allege Doe Defendants in the complaint in order that defendants not known at the start of litigation, but later identified, may be included in the claim. Doe defendants should always be alleged in the complaint.

12. To “toll the statute of limitations” means to legally suspend the time frame during which a claim on a particular cause of action may be brought. A complaint tolls the statute of limitations because an action is being brought on the claim and the statute of limitations should not be used to pressure the litigants or the court into reaching a judgment in a particular time-frame.

13. There are many requirements for a summons to be legally enforceable. Using the printed form ensures that those requirements are met.

14. Any person over the age of 18, who is not a party to the lawsuit, may serve the complaint and summons. It is improper for a party to the lawsuit to serve the summons because of the obvious conflict of interest and the potential for conflict. A husband may serve on behalf of his wife, if he not a party to the action. The same is true for at parent and child. A guardian is not a party to the action and may serve notice on behalf of the child.

15. Service by certified mail returned receipt requested is suitable for out of state defendants due to the difficulty of verifying whether the service was successful. Verification of successful service is ostensibly easier in the case of an in state defendant.

16. There are four methods of service: (1) Personal Service – personally giving the individual a copy of the complaint and summons; (2) Substituted Service – leaving the complaint and summons at the person’s dwelling house, usual place of abode, usual place of business or usual mailing address, with a person a least 18 years of age; (3) Service on Agent – service can be made on an agent authorized by law to receive service on a person’s behalf; (4) Service by Mail – service can be made by mail, together with two copies of the notice and acknowledgement of receipt; (5) Out of State Service – may be made by 1st class mail with a receipt request; (6) Service by Publication – requires a court order and only used when all other methods fail or are not available.

17. Generally, a summons and complaint must be served within three years after the complaint has been filed. The court has discretion to dismiss if the complaint has not been served within two years. Local fast-track rules may require a complaint to be served in a little as 60 days after filing or risk the judge dismissing the case if good cause is not shown for the delay. The purpose of the fast-track rules is to reduce the load on the courts and make the courts more efficient.

18. The three responses to allegations in a complaint are admit, deny, or insufficient knowledge or information to answer.

Example of admittal: The defendant admits the allegations in paragraph 1 of the complaint.

Example of denial: The defendant denies each and every allegation in paragraph 4 of the complaint.

Example of insufficient knowledge or information to answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the complaint, and, therefore, denies each and every allegation contained therein.

19. A claim is compulsory if the claim arises out of the same transaction or occurrence on which the complaint is based. If the defendant fails to file a cross-complaint in such instances, the defendant will have waived her right to relief based on any claim that should have been asserted. Exceptions to this rule are:

a. The court cannot obtain jurisdiction over any necessary additional parties;
bathe court does not have personal jurisdiction over the defendant;
c. The defendant did not file an answer to the complaint; or,
d. The cross-complaint is the subject of a pending action.

20. Permissive cross-complaints involve claims unrelated to the initial action. The defendant can bring any action against the plaintiff, even if it is unrelated to the action. The theory is that the plaintiff and defendant should be able to resolve all their differences in one hearing. The court may not allow a permissive cross-complaint if it makes the lawsuit too confusing.

21. There is a distinction drawn between compulsory and permissive cross-claims because the court wants to resolve all related claims at the same time, whereas, unrelated claims may be better handled in a separate trial.

22. A nonparty may want to intervene in an action if that party felt his/her interest in the property or transaction in dispute would be affected by the case outcome.

23. A cross claim may be filed against a third party when the defendant believes the third party is the responsible party, indemnifies the defendant or in some way is related to the cause of action or the property and transaction that is the subject matter of the occurrence or transaction. (I don’t know what hypothetical #1 refers to)

24. In California the general fact requirements for a class action are not specified but the case law reflects the requirements of Rule 23(b) of the Federal Rules of Civil Procedure:

a. A class action is appropriate when separate actions would “create a risk of inconsistent or varying adjudications” that would “establish incompatible standards of conduct” for the party opposing the class, or when separate adjudications as a practical matter would determine the interests of the others in the class who are not parties to that adjudication.

b. A class action is appropriate when the party opposing the class has “acted or refused to act on grounds generally applicable to the class.”

c. A class action is appropriate when “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and a class action is the best method for handling the entire controversy.

25. Any pleading may be amended by right without costs at any time before a responsive pleading is made. If no responsive pleading is allowed, as with an answer, a pleading may be amended by right within ten days after service. Motions that attack a pleading, such as demurrers or motions to strike are not considered responsive pleadings; even after such motions are filed, the defendant can amend any time prior to the hearing on that motion. An amendment by right is simply served on the defendant without any need for court action.

The court may, at its discretion, permit any amendment which it deems to be in the “furtherance of justice.” The court will, generally, allow “Amendment by Leave” to correct mistakes, oversights, errors, or delay unless the amendment would prejudice the opposing party. A party seeking leave to amend during the pleadings stage will likely succeed, however, during the discovery stage an attempt to “Amend by leave” may encounter resistance.

26. An amendment to a pleading seeks to alter an allegation that has already been made. A supplemental pleading seeks to allege facts material to the case that have occurred since the time the original pleading was served. The court may, at its discretion, approve or disapprove any supplemental pleadings.

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#G - Necessary Elements in Plaintiff's Pleadings

A = all answers correct
B = one answer not correct
C = two answers not correct
D = more than two answers not correct

here is sample

1. Summarize the necessary elements for a plaintiff’s complaint

Pursuant to California Code of Civil Procedure § 425.10, the two necessary elements for a plaintiff’s complaint or cross-complaint shall contain both of the following:
a. A statement of the facts constituting the cause of action, in ordinary and concise language
b. A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages id demanded, the amount demanded shall be stated

2. Summarize the various defenses a defendant can use to oppose by way of a demurrer the plaint plaintiff’s complaint

Pursuant to California Code of Civil Procedure § 430.10, a defendant may demur to the complaint by any one or more of the following grounds:

a. the court has no jurisdiction of the subject of the cause of action alleged in the pleading
b. the person who filed the pleading does not have the legal capacity to sue
c. there is another action pending between the same parties on the same cause of action
d. there is a defect or misjoinder of parties
e. the pleading does not state facts sufficient to constitute a cause of action
f. the pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible
g. in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct
h. no certificate was filed as required by § 411.35
i. no certificate was filed as required by § 411.36

3. From the Lodi case, summarize Witkin’s statement on the “notion of a cause of action”

The notion of a cause of action is a legal theory that, when applied to the facts of each case, characterizes the facts as wrongs entitling the plaintiff to relief. The plaintiff’s complaint fails to state facts showing a primary right by plaintiff or a primary duty devolving on defendant or a wrong done by defendant. The complaint therefore fails to state facts constituting a cause of action as required by § 425.10. Consequently, the complaint was not drawn in conformity with the laws of this sate and as properly subject to the court’s own motion to strike under § 436.

4. Carefully read the Schaefer v. Berinstein case, and find the rule “In determining whether or not the complaint is sufficient, as against the demurrer”, and evaluate this rule, and assess the public policy reasons for establishing such a rule.

On appeal from a judgment sustaining a demurrer to a complaint the allegations of the complaint must be regarded as true. It must be assumed that plaintiff can prove al the facts as alleged. The court must, in every stage of an action, disregard any defect in the pleadings, which does not affect the substantial rights of the parties. Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears. The rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relieve at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. The basic principle of the code system in this state is that the administration of justice shall not be embarrassed by technicalities, strict rules of construction, or useless forms.

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#H - Submit Standard Complaint

Perry Mason
1756 High Street
Santa Cruz, CA 95060
State Bar No: 1758998
(831) 426-6565
Attorney for Richard Hobbs

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF Santa Cruz

Richard Hobbs - Plaintiff,
v.
Josie Hobbs Properties- Defendant

CASE NO: 75845

COMPLAINT FOR BREACH OF CONTRACT

Plaintiff complains and for causes of action alleges as follows:
FIRST CAUSE OF ACTION:
(For Breach Of Contract Against Josie Hobbs Properties)

Defendant Josie Hobbs, is now, and at all times herein mentioned was, a resident of the City of Cupertion, County of Santa Clara, State of California.

Defendant Josie Hobbs Properties, is now, and at all times herein mentioned, was a Corporation organized and existing under the laws of the State of California with principle offices located at 10444 Moretti Drive, in the City of Cupertino, County of Santa Clara.

Plaintiff Richard Hobbs is ignorant of the true names and capacities of defendants sued herein as DOES I through X, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff Richard Hobbs will amend this complaint to allege their true names and capacities when ascertained.
.
Plaintiff Richard Hobbs is informed and believes and thereon alleges that, at all times herein mentioned, each of the defendants sued herein was the agent and employee of each of the remaining defendants and was at all times acting within the purpose and scope of such agency and employment.

On or about January 10, 2004, in the City of Santa Cruz, County of Santa Cruz, State of California, Plaintiff and defendant entered into a written agreement, a copy of which is attached hereto as Exhibit "A" and made a part hereof. By the terms of said written agreement.

The consideration set forth in the agreement was the fair and reasonable.

Plaintiff, Richard Hobbs, has performed all conditions, covenants, and promises required by him on his part to be performed in accordance with the terms and conditions of the contract.

On or about February 20, 2004, the defendant Josie Hobbs breached the said agreement by refusing to pay agreed upon price for services rendered, (the remodel of her kitchen).
By reason of defendant's, Josie Hobbs breach of said contract as herein alleged, the plaintiff Richard Hobbs has suffered damages in the sum of $8550.00.

By the terms of said written agreement, the Plaintiff, Richard Hobbs, is entitled to recover reasonable attorney fees incurred in the enforcement of the provisions of the agreement. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of THE LAW OFFICES OF Perry , INC. to prosecute this lawsuit.

WHEREFORE, plaintiff Richard Hobbs prays judgment against defendant Josie Hobbs and each of them, as follows:

For compensatory damages in the sum of $8550.00

For interest on the sum of $1589.00 from and after January 10, 2004 to date of judgment;

For reasonable attorney fees according to proof;
For costs of suit herein incurred; and For such other and further relief as the court may deem proper.

VERIFICATION

I, Perry Mason , am an attorney in the above-entitled action. I have read the foregoing and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Long Beach, California.

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#I - Law and Motion

1. F
2. T
3. T
4. T
5. F
6. F
7. T
8. T
9. T
10. F
11. F
12. F
13. T
14. T
15. F

APPLYING YOUR KNOWLEDGE:

1. Written Notice; a Memorandum of Points and Authorities identifying the law supporting the motion; Proof of Service.
2. It is good practice to provide more notice than necessary for the convenience of the court and all parties. Contacting opposing counsel and selecting a mutually agreeable hearing date is a practice that gives the court time to read the motion, avoids disputes over proper notice, minimizes continuances and fosters a good working relationship with lawyers representing the other party.
3. Proof of Service is a certificate, issued by a lawyer or non-lawyer that states that service on the other parties has been made in a proper way. It is attached to the end of the motion so that the court knows that all parties are aware of the motion and that the constitutional requirements of procedural Due Process have been met.
4. To select a date for hearing follow the following three steps: (1) Check with the clerk of the court to determine on what day the court hears motions; (2) Check with the lawyer in the office who will argue the motion so that the date is cleared on his/her calendar; (3) Check with the clerk the day before the hearing to verify that the motion will be heard and obtain the approximate time the lawyer should be in the courtroom.
5. A memorandum of points and authorities is a document setting forth the background facts and legal authorities to support the motion. In addition, some motions require an additional affidavit or declaration to be filed with the memorandum of points and authorities with necessary exhibits and supporting documents. This format allows the judge to review the motion quickly and then review the more detailed supporting materials.
6. The responding party can either oppose or not oppose the motion. If the party chooses not to oppose, notice must be given to the court that they will not appear and the court will rule on the motion as if the party had appeared. Another approach is for both parties to agree to a consent order to dispose of the motion. The judge may or may not sign a consent order, but usually does.
If the responding party opposes the motion, the response must be filed and served at least 10 days prior to the hearing. The response should set out in the form of a memorandum of points and authorities the reasons for the opposition and include case law and other authority that the judge should consider. It is good practice to follow the points in the same order as in the moving papers to make it easier for the judge to follow the argument.
7. A judge may issue a tentative ruling based on the papers filed. The parties may then have the opportunity through oral argument to persuade the judge to change the ruling. Judges vary on the amount of oral argument they allow. One rule of thumb is don’t present in oral argument the points made in the written motion unless the judge specifically requests the information. Tentative rulings and subsequent oral argument ensure substantial justice.
8. In the federal court system, the clerk will enter the judges ruling on a motion on a minute order form. The minute order is signed by the judge or stamped with the judge’s signature, and a copy is mailed to the lawyers. If the motion is important, the judge may prepare a written opinion and order explaining the reasons for the ruling or ask that the prevailing party prepare an order for the judge’s signature (if this is done, the prepared order will be served on the opposing party for review prior to a judicial signing).
9. The court is generally flexible in its definition of good cause for extension of time. Usually any reason other than one involving bad faith and actual prejudice to an opponent will result in the court’s granting a reasonable extension of time.

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#J - Motions Practice

1. 1. false
2. true
3. true, either party
4. true
5. false, as to fewer than all causes of actions
6. true
7. true
8. true
9. true, and unless otherwise stated
10. false, never say never
11. true, but within the time required-timelines
12. false
13. false, several
14. true

1. CCP§438 After the pleadings are closed, but sufficiently before trial so that trial will not be delayed, any party can move for judgment on the pleadings. The motion determines if, based on the allegations in the pleadings, the moving party is entitled to judgment. A judgment on the pleadings is placing one opponent in favor of a ruling and/or decision. Summary judgment happens before trial and is brought about to obtain a judgment without the necessity of a trial. Summary judgment may be granted only if there are no triable issues of fact, only issues of law. The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint A motion to dismiss is usually filed by the defendant, by can be done by the court when some specified defect can be found in the plaintiff’s complaint. This prevents a trial all together.

2. The responding party or opposing party must file and serve the oppositions papers at least 14 days in advance. Any reply to the opposition filed by the moving party must be filed and served at least 5 days before the hearing. Why do you think the court requires a longer period of time? I am assuming you mean the 60 days before even moving for summary judgment, because the time frame above is not consistent with your question. This allows for many facts to become known and clear. Much opposition will include the information from the discovery process, such as interrogatories, depositions, etc.. If the process was done too soon and facts became known later, it would allow for many appeals and back up the court.

3. There is no question as to the stated facts on the issue at hand. Where is this hypothetical that you speak of? I search the book and the instruction page and I don’t find it. Can you please tell me where it is so I can refer to it? I am at a complete loss. As an example, we might agree that A was responsible for giving B an incorrect order number, but that does not change the fact the shipment was 5 days late and breached the contract. So that is not a triable issue of fact.

4. As a matter of good practice, of course, the opposing party always responds to the motion with a memorandum and, if possible, affidavits showing whey the motion should not be granted. However, if the motion with accompanying materials shows that the motion should be granted, the opponent ordinarily must, if able to , present a response and opposing affidavit to show that disputes over material issues still remain. If the court then finds that disputed issues remain, the motion will be denied.

5. First under CCP§581(b)(1), a plaintiff has an absolute right to dismiss a complaint any time before the commencement of trial. Second, a plaintiff may dismiss the action, or any cause of action or party to the action, once the trial starts. However, in such cases, the dismissal will be with prejudice, unless all the parties agree to the dismissal.

6. A general demurrer is one that is based on either a failure to state a cause of action or lack of subject matter jurisdiction. All other grounds are special demurrers; i.e. legal capacity to sue, defect or misjoinder of parties, pleading is uncertain, contract is undetermined whether it is oral, written, or implied, etc.. An example of a general demurrer would be to file a constitutional issue within a state court. A special demurrer would be a declared mentally incompetent person filing a lawsuit without a guardianship, etc..

7. In voluntary dismissal provides a method for terminating a claim when the plaintiff or other claimant has been guilty of misconduct. One, if plaintiff has failed to serve and return the summons and complaint within the three years after the summons has been issued. Second, a plaintiff’s failure to prosecute a claim. Third, plaintiff fails to comply with the rules of procedure or with court orders.

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#K - Provisional Remedies

1. T
2. T
3. F
4. F
5. T
6. F
7. T
8. T
9. F
10. T
11. F
12. F
13. T
14. F
15. F
16. T
17. T
18. T

 

1. The three types of injunctions are temporary restraining order (TRO), temporary injunction and permanent injunction. A permanent injunction is a remedy that can be ordered only after a trial on the merits of the case. Temporary restraining orders and preliminary injunctions are provisional remedies whose purpose is to maintain the status quo and avoid irreparable injury to the plaintiff until the rights of the parties can be adjudicated.

A TRO can be granted ex parte and can be granted only until a hearing for a preliminary injunction can be held. By contrast, a preliminary injunction can be issued only after an adversarial hearing. The TRO and the preliminary injunction work together. The TRO provides immediate protection to the petitioning party and the preliminary injunction protects the plaintiff until the case is tried.

A TRO can be granted without notice to the opposing party if the motion is supported by an affidavit or a verified complaint alleging facts that show that a great or irreparable injury will result if the TRO is not granted and the attorney representing the applicant files an affidavit explaining what effort were made to provide notice or why notice should not be required. A preliminary injunction cannot be granted without notice and notice of the motion must include service of the complaint and summons.

2. A TRO is termed an “extraordinary procedure” because it is only granted in compelling circumstances. The court will only grant a TRO if the applicant shows that a failure to grant the motion will cause “great or irreparable injury.” In addition, the applicant must show, in addition to irreparable injury, a likelihood that the case will succeed on its merits that the threatened injury to the applicant exceeds any foreseeable injury to the adverse party if order is granted, and that any order will not be against the public interest.

3. Notice of TRO is not required; however, the court will clearly prefer any notice over none at all. Filing a motion for a for a TRO requires that the attorney for the moving party certify under oath the efforts that have been made to give the notice or the reasons supporting his claim that notice was not given. Any type of notice is acceptable including a telephone call to the adverse party or his attorney.

4. There is no requirement under state law that a party seeking a TRO post a bond as security for any of the defendant’s costs and damages that may result if the TRO is wrongfully issued. Posting a bond is discretionary with the court and a plaintiff should, as a matter of practice, be prepared to deposit a cash bond with the court if the TRO is granted.

5. It may be very expensive to seek an attachment. The attachment process is very detailed and usually requires a court appearance. Only rarely will the court grant an attachment ex parte. The cost of filing is partially buffered by the fact that the Judicial Council has published forms for the application for right to attach, the right to attach order, and the writ of attachment.

The plaintiff may seek attachment as a means to seize sufficient property or money of the defendant to satisfy any future judgment the plaintiff may obtain against the defendant. The plaintiff may not want to wait to obtain a judgment because he fears the property may be destroyed by the defendant or the defendant may not have sufficient assets in the future to satisfy a judgment.

6. A plaintiff should seek a writ of possession when entitled to the possession of property that is wrongfully detained by the defendant. Most commonly, this involves property that has been pledged as collateral for a debt that is in default, or when there is a dispute as to the true owner of the property.

7. A lis pendens places a lien on real property owned by the defendant. It is good practice to consider filing a lis pendens whenever the suit involves an interest in real property. A lis pendens gives notice of the pending litigation to parties that have an interest in the property. Since property cannot be purchased without a title search that alerts potential buyers to any pending litigation. A buyer, who purchases a property with notice of lis pendens, must take the property subject to any judgment that may be entered in the litigation. Generally, the lis pendens puts a cloud on the title that makes it very difficult for a defendant to sell the property. However, there are remedies that allow the defendant to remove a lis pendens.

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#L - Discovery

TRUE/FALSE

1. F
2. T
3. T
4. T
5. F
6. F
7. T
8. T
9. T
10. T
11. T
12. F
13. T
14. T
15. F
16. F
17. T
18. T
19. T
20. T
21. F
22. T
23. F
24. T
25. T
26. T
27. T

APPLYING YOUR KNOWLEDGE

1. The purpose of interrogatories is to obtain basic facts about the opposing party¡¦s case. Interrogatories are effectively used to obtain information regarding the following:

„X Identify witnesses and experts

„X Obtain specific facts on which the pleadings are based

„X Obtain the subject matter, opinions, and bases for the opinions of experts

„X Identify documents and other tangible things

„X Details and sequences of events and transactions

„X Damages information and ability to pay

„X Identity of persons who prepared answers and of sources used

„X Positions on issues and opinions of fact

„X Inquire about any claim or defense

„X Inquire about any relevant matter that is not privileged

2. The opposing party¡¦s interpretation of the law is privileged work product. However, where the pleadings are vague, it is proper and useful to inquire what conduct the opposing party thought constituted the claim. This can assist in focusing on specific facts underlying the legal claims.

3. The rules of discovery are designed to allow the parties to educate each other regarding the facts of the case. Relevance for purposes of discovery is exceptionally broad. Information sought in discovery need not be admissible at trial or relevant if it appears to be reasonably calculated to lead to the discovery of admissible evidence on the subject matter of the lawsuit.

4. CCP Section 2017(b) permits the discovery of liability insurance policies held by any party that may satisfy, in part or in whole, a judgment. This information helps to determine the value of a case and the defendant¡¦s ability to pay a judgment. The information is not admissible as evidence because the fact that an individual carries liability insurance is not relevant to actual liability on a claim.

5. CCP Section 2034 governs the discoverability of the identity, opinions, and reports of testifying experts. Consulting and informally consulted experts, who will not be called as trial witnesses, are usually not discoverable because they are considered a party¡¦s work product. Testifying experts are discoverable in order that the opposing party may have an opportunity to dispute their testimony.

6. Requests to produce generally fall into one of three categories:

„X Documents for inspection and copying

„X Tangible things for inspection, copying and testing

„X Entry on land or property for inspection and testing

7. The term ¡§reasonable particularity¡¨ is usually read to require that, in the context of the case and the overall nature of the documents involved, a responding party must reasonably be able to determine what particular documents are called for. This is a flexible standard allowing requests that generally describe the type of documents thought to be relevant to the claim.

8. It is critical to have an accurate record of what information has been shared with the opposing party. In addition, it is important to maintain a copy in the event that a document is destroyed. Finally, a copy, if properly annotated, may help to prove that documents were, in fact, provided per a request.

9. Numbering the documents provides a means of identifying the documents for depositions and trial preparation. The numbers can also be use to identify which party produced the documents when each party decides to use a particular numerical sequence (e.g. plaintiff 1-1000 and defendant 2,000-3000).

10. To obtain documents against a non-party a Subpoena Duces Tucem re Deposition is the only discovery method permitted. Under CCP Sections1985 ¡V 1987.5 a subpoena can be issued to command any person to attend a deposition and to produce and permit inspection of designated records and tangible things.

The subpoena duces tecum is issued by the clerk or the judge, and is signed and sealed, but otherwise left blank. The party requesting the subpoena fills it in and serves it on the nonparty with an affidavit showing ¡§good cause for the production of the matters and things described¡¨ as well as the materiality of the documents to the issues involved in the case.


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#M - Settlements

TRUE AND FALSE

1. F
2. T
3. T
4. T
5. F
6. T
7. T
8. F
9. T
10. F
11. T
12. T
13. T
14. F
15. T
16. T
17. T

APPLYING YOUR KNOWLEDGE

1. The three basic steps for settling a case include: (1) Determine the case’s settlement value; (2) Sell the assessment of settlement value to the opposition; (3) Get the client to agree.
2. A settlement brochure is a factual summary of the case supplemented by photographs and other materials. It graphically shows the nature and extent of the injuries, summarizes the quality of the plaintiff’s case, and demonstrates the jury appeal of the plaintiff.
3. A release without prejudice guarantees the defendant that the plaintiff will not bring a future action against him based on the same matter.
4. A release is a complete discharge of an action. A covenant not to sue will not act to discharge any parties.
5. Structured settlements provide a plaintiff with periodic payments over time. It is particularly useful in the cases where the plaintiff has been severely injured and requires ongoing income. Structured payments benefit the insurance company because it is less expensive to pay money over time due to inflation.
6. The purpose of a CCP Section 998 offer is to as strong incentive to settle. Parties usually make the 998 offers after negotiations break down and the trial is about to begin. It is an effective tool for obtaining settlements.

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#N - Trial Preparation and Appeal

1. Test your comprehension of Chapter 12 by answering each of the following questions. (true or false)

1. Deviations from the pretrial order are always allowed at trial. False

2. Any omissions or inaccuracies in the pretrial order do not need to be corrected. False

3. A jury chart is used to record where each juror is sitting in the jury box during trial. False

4. Voir dire examination is when specific questions are asked of the prospective jurors. True

5. A witness who is not a party to the lawsuit must be served with a subpoena to appear at trial. True

6. If a witness is biased, the lawyer must use a peremptory challenge to strike the prospective juror from the jury panel. false

7. Nonparty witnesses must sit through the entire trial until they are called to testify. False

8. In closing arguments the lawyers summarize the evidence that has been presented and explain why the judge or jury should rule in a particular way. True

9. After the plaintiff's case-in-chief, the defendant has the opportunity to present rebuttal evidence. True

10. Once the jury renders a judgment in favor of one party, the case is automatically closed. False

11. Jury instructions should be drafted before trial. True

12. Witnesses should not be permitted to review their previous deposition transcripts prior to trial. False

13. After the direct examination has been prepared, it is a good idea to review with the witness the areas that the lawyer anticipates the cross-examination will cover. True

14. Photographs should be enlarged in advance of trial so that the photographs are easier for the jury to see. True

15. Prejudicial errors that may provide grounds for appeal include evidence that was improperly denied or admitted. True

APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text.
1.Why do many cases settle during the trial preparation state of the litigation?
"Some of the reason why cases settle during the prepartion of trial are when the adverse publicity gets too great.. This possibility makes one conclude that publicity for the plaintiff and his case is good for the plaintiff and bad for the defendant, which may well be why most lawsuits in the U.S. are not publicized by the press. Another possible reason is when the top management is required to submit to depositions. The reason for this is that top management knows much more than the typical middle manager, who is limited to specific areas of the business. When the top managers are involved, such as the C.E.O. and Chairman of the Board, the plaintiff's lawyer has the rare opportunity of obtaining answers, under oath, from someone who should know more than others about the alleged wrongdoing. Settlements frequently are considered at this point, especially because the top management's time is quite valuable. Some top managers will conclude that their time is so valuable to the company that they would rather settle than lose that time preparing for the deposition, and possibly giving more ammunition (or evidence) to the plaintiff. Also, the top management understandably feels that litigation is a negative influence and cannot result in anything good for the top manager or his/her company. If the plaintiff is willing to settle for nuisance value, except that such settlements are generally not recommended by the attorneys, it seems, using the argument that any settlement for whatever amount might result in more lawsuits, especially by the same attorneys. Keeping the settlement confidential would not change the fact that the plaintiff's attorney is aware of the settlement, and might be interested in bringing more cases for other persons similarly situated. If the discovery starts uncovering wrongdoing and other secrets which the defendant must disclose, after efforts in not disclosing such matters have failed; this often means that the court has to order the defendant to produce or disclose things before the defendant finally decides to settle instead of disclose. If the suit becomes the talk of the industry and could generate more litigation and customer dissatisfaction for disclosing the inequality of treatment of the defendant's customers. If the defendant loses its motion to dismiss the complaint for alleged failure to state a cause of action under Rule 12(b)(6), Fed. Rules of Civ. Proc., or denies the defendant's motion for summary judgment dismissing the action under Rule 56, Fed. Rules of Civ. Proc. Defendants and their counsel figure that they might as well try to get rid of the case by making a motion to the court before considering any settlement. The problem with this, however, is that the publication of the Court's decision, whether favorable or not, will give other plaintiffs and their attorneys a good source for seeing how to recover damages from the defendant, including the strengths and weaknesses of the original complaint and the defendant's answer thereto. Thus, some defendants choose not to take a decision; but because antitrust litigation is becoming increasing rare, there is less pressure on the defendant to avoid taking a decision, especially when they recognize that the odds favor the defendant in antitrust litigation. After the plaintiff has cleared all hurdles, including the costly fight for more than a year, surviving the inevitable motion to dismiss and/or summary judgment motion, and the costly, time-consuming negotiation and preparation of a "pre-trial order" which too often spells out every single aspect of the case in about 25-50 pages, including exhibits, witnesses, expert witnesses, legal theories, factual statements, agreed upon statements of fact, estimated length of trial, legal issues to be decided by the court, and so on. Also, there are the time-consuming and difficult requests to charge the jury to be prepared and negotiated with the opposing counsel; then there are the exhibits to put together and number and copy; and the witnesses to subpoena and interview and prepare; and the overall orchestration of the trial so that everything comes together at 9:30 a.m. on a date specified by the judge. At this point, because the C.E.O., Chairman of the Board, and other officials of the defendant will have to spend a lot of time on the case, in court, being briefed by counsel, preparing for their testimony before the jury, reviewing transcripts of prior testimony; reviewing exhibits; going through explanations of why they did what they did -- finally, the top management may say, "Enough! How much will it cost?" -- and the case may well be settled the night before trial is to commence. But often or sometimes this is not the case. Sometimes the defendant decides to go all the way, regardless of the cost, to deter anyone else from bringing suit. Such defendant wants to ensure that nobody could ever mistake the defendant for being a patsy and settling a legitimate claim, and that the plaintiff and plaintiff's lawyer will have to spend far more in time and money to try to obtain a recovery than the recovery would be worth, knowing that in a certain (too high) percentage of the time there will be no recovery at all in typical Sherman Act and Clayton Act antitrust lawsuits. RPA lawsuits appear to be different, for a variety of reasons, but these distinctions may not be appreciated by defendants and their attorneys. The right to go to trial, obtained through denial of the defendant's motion(s) to dismiss and/or for summary judgment, and the start of trial, are two powerful forces urging settlement. If the plaintiff prevails before the jury (and a jury trial is almost always preferable to a non-jury trial), the defendant generally will not pay the amount won at trial. The defendant has more motions it can make, including a motion to overturn the jury verdict for a variety of reasons; and of course the right to appeal to the United States Circuit Court of Appeals".

2.What is a pretrial conference? What is the purpose of the pretrial conference?
A pretrial conference is a meeting between the parties before the court after litigation has commenced, but before trial begins... The purpose of a pretrial conference is due to the fact that more then 90 percent of civil cases filed in court settle before trial... The law and judges prefer settlement and there are several methods to accomplish just that.. A pretrial conference is one.. and it is used to get the adversaries together to discuss settlement possibilities since most clients tend to favor settlement over the increased expenses and uncertainities of trial.....

3.Why is the first step in trial preparation the organization of files? In what categories should the files be organized? The first step is to make sure the files are in order..All the files must be organized, divided and indexed to provide immediate and accurate access to the contents at any time furing trial...
The common file categories are;
Court papers- Which include the pleadings, discovery, motions and responses, orders and supboenas.
Evidence- Which includes bills, statements and receipts, correspondence between parties, photographs, maps, diagrams, business records..
Attorney's records-Which include a running case history, retainer contract, bills, costs, correspondence, legal research, and finally miscellaneous..

4.Why is voir dire examination of the prospective jurors important?
Voire dire refers to the method used to learn about the prospective jurors.. The judge or lawyers will ask questions of each prospective juror in an attempt to ascertain information about the juror... This information can help the lawyer decide whether the prospective juror will be biased in favor or against one side...

5.Identify the different methods by which trial material may be organized.
As the trial date approaches, it is necessary to organize the material that will be used during the trial.. The trial material should be organzied in a way that is most efficient and useful at trial... Two methods, the divider method and the trial notebook method are most commonly used.. Usually either of the two methods are used but they can also be effecitively used in conjunction, especially in large cases.... In such cases, the notebook can be used as a working trial notebook that keys into a larger divider system... Which is frequently done in large commercial litigation cases..

6.What does "theory of the case" mean? Why is a theory of the case important?
The theory of the case is the lawyer's position on, and approach to, all the undisputed and disputed evidence that will be presented at trial...The lawyer must integrate the undisputed facts with his/her version of the disputed facts to creat a cohesive, logical position at trial. That position must remain consistent during each phase of the trial... At the conclusion of the trial this position must be the more plausible explanation of 'what really happened' to the jury... And the theory of the case must be developed before the trial begins because the approach to each pahse of the trial is dependent on the theory....

7.How does witness preparation for trial differ from witness preparation for discovery?
Witness preparation for trial purposes is not discovery... This is not the time to learn what the case is all about or to obtain interesting information.. Witnesses favorable to your side must be prepared for testifying in court to those facts that will supprt your side's theory of the case..
Preparation involves reviewing those facts that each witness and exhibit can provide, and preparing the witnesses to testify to those facts in a convincing fashion...
Preparing a witness for trial preparation involves many things.. It is vital that you prepare each witness individually..And review with the witness all previous testimony, depositions, answer to interrogatories, written and oral statements, and any other material that could be used for impeachment purposes... You may read these materials to the witness, or have them read them.. You have to determine if his/her present recollections differs in any way from his past recollection... It is also a good idea to do practice cross examinations with the witness...
Discovery is the vehicle your side will use to force the other parties, and nonparties, to disclose information they have pertinent to the litigation...
As with preparing a witness for discovery, for example, a deposition, you should confer with the client and have the pleadings, records, reports etc., available to have the client review...You should review with your client just what a deposition is, and what he/she can expect... Since usually the atmosphere in a deposition is informal , it is still a good idea for the client to dress accordingly.. no t-shirt, please.. With a deposition it is a good idea to review with the client what questions the lawyers are most likely to ask... and to answer those questions carefully and accurately.. and if he/she can't answer a question then he/she should just say so..

8.Why do all nonparty witnesses need to be served with a subpoena to testify at trial? Why is it good practice to serve even friendly nonparty witnesses with a subpoena? Should parties to a lawsuit be served with a subpoena to appear at trial?
If a witness is not a party to the lawsuit, the witness will need to be served with a subpoena to appear at trial... Part of the preparation of witness should be to ensure that a subpoena is servied on all nonparty witnesses.. Friendly witnesses can be served with the subpoena at the time of the meeting to prepare them for trial... The reason for such subpoenas to nonparty witnesses is necessary to secure their attendance.. Without subpoenas there is nothing to compel friendly or nonparty witnesses to testify... And it is always better to protect the client's interest by serving the subpoena rather than taking the chance that a witness will not appear at trial.. It is always a good idea to make sure any parties to a lawsuit will attend if their testimony is necessary at he trial...

9.Explain the various stages of trial and the purpose of each stage.
The first state is the selection of the jury, the lawyer for each party will present opening arguments.. These are an opportunity for the lawyers to tell the jury, or judge in non jury trials, their client's versions of the facts and what they expect from the evidence..
Nest, the plaintiff's lawyer will present his/her case in chief... This refers to the evidence that a party will present to support the party's position..
Then the defendant's lawyer will present his/her case in chief...
The plaintiff has the opportunity to present rebuttal evidence after the defendant's case in chief... This evidence allows the plaintiff to produce or explain or contradict the defendant's evidence.. This is called subrebuttal..
Then after both sides have presented their cases and any rebuttal or subrebuttal evidence, closing arguments will be heard... In the closing arguments, the lawyers summarize the evidence that has been presented and explain why the judge or jury should rule in a particular way...

10.What is the purpose of a peremptory challenge? Why is the number of peremptory challenges each side is given limited?
A peremptory challenge allows a lawyer to strike a juror from the panel with having any stated reason... An example would be perhaps the lawyer beleives the juror does not have the right personality or experience to render a decision favorable to the lawyer's client.... Too prevent too many challenges, the lawyers are given only a limited number of peremptory challenges, usually no more then four or five... In most jurisdictions the number of challenges is contained in the statutes and rules... The numbers vary greatly and you must read the applicable statutes and rules prior to trial to find out the exact number...

11.Why is it a good idea to visit the courtroom a few days before trial?
It is a good idea to visit the courtroom a few days before trial to determine if their is adequate space for the storage of files, the location of chalkboards and easles for exhibits, as well as the location of electrical outlets for tape recorders, video equipment, or projectors... You might also find out if there would be extension cords needed, the length required and whether the cords can be placed so to avoid anyone tripping over the cords... It is also a good idea to note the location of the counsel tables to determine where your files should be placed... It might even be a good idea to make a drawing of the courtroom for reference...

12.Why is it necessary for you to avoid speaking with any of the jurors during a trial?
It is very important not to communicate with any of the jurors, any inadvertant conversations with a juror could lead to claims of impropriety by the adverse party and subsequently a mistrial.... Discretion is the key... You shouldn't speak of anything that pertains to the proceedings in restrooms, evelvators,etc., for you never know who might be listening in...

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#O - Enforcement of Judgments

1. An abstract of judgment places a lien on all real property owned by the debtor. True

2. The procedures for enforcing a judgment are governed by state law. True

3. An abstract of judgment is not effective if the property has been sold after the abstract has been recorded.
False

4. A writ of execution is a motion made by the judgment creditor to levy upon assets of the debtor.
True

5. Upon issuance of a writ of execution, the judgment creditor can transfer the writ to the sheriff, marshal, or other agency, with instructions to levy upon certain assets of the judgment debtor.
True

6. If you would like the law enforcement agent to go into a business and collect any cash or checks that are in the register or that come into the business while the law enforcement agent is present, you should instruct the agent to install a keeper.
False

7. Wage garnishment is a direction to the employer of the judgment debtor to withhold a certain amount of money from each paycheck of the debtor for a limited period of time.
True

8. Discovery cannot be taken from a debtor after a judgment is entered.
False

9. Upon notice of a bank levy, the bank will turn over all funds in the debtor's account up to ten days after the notice is received by the bank.
False

10. A writ of execution is required in order to obtain information about the assets of a debtor. False

APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text.

1. Why is it a good idea to send the debtor a demand letter for payment? What do you hope to accomplish by sending such a letter?
Sending the debtor a demand letter is the quickest and easiest way of obtaining the judgment... You ultimately hope to accomplish payment.. Even if it is in an installment plan..

2. What are the drawbacks to using an abstract of judgment to enforce a judgment? Even with these drawbacks, why is it still a good idea to record an abstract of judgment?
One of the drawbacks is if the debtor is not paying the client, is is likely that he/she has other creditors who are also not being paid.... If for example a senior lienholder forecloses on the property, the client's lien will be extinguished unless there is sufficient equity in the property to pay the junior lienholders...
However, this drawback should not discourage one from recording an abstract of judgment, since an abstract of judgment is simple and inexpensive...


3. The text discusses enforcement of judgments entered in California courts. Are there similar rules in for federal court judgments. Review Rule 69 of the Federal Rules of Civil Procedure, to determine what rules apply to enforcement of judgments in federal court. What does that Rule state?
Rule 69. Execution states:
(a) In General.
Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held.
(b) Against Certain Public Officers.
When a judgment has been entered against a collector or other officer of revenue under the circumstances stated in Title 28, U.S.C., § 2006 , or against an officer of Congress in an action mentioned in the Act of March 3, 1875, ch. 130, § 8 (18 Stat. 401), U.S.C., Title 2, § 118, and when the court has given the certificate of probable cause for the officer's act as provided in those statutes, execution shall not issue against the officer or the officer's property but the final judgment shall be satisfied as provided in such statutes.


4. What are the three types of levy discussed in the main text? Explain how they differ.
The three types of levies are:
1. The till tap.
2. The keeper
3. The bank levy
The till tap is if the judgment debtor is the owner of a business, or if the debtor is a business entity, a till tap is an effective method to collect the cash and checks on hand at the business... The law enforcement agency will go into the business and stay for a short period of time, (usually just 3 or 4 hours) during this time the agent will collect any cash or checks that are in the register or that come into the business while the law enforcement agent is present..

The keeper is similar to the till tap... A keeper will stay at the business premises for a longer period of time however, usually 24-48 hours.. During this time the keeper collects any money that comes into the business.. At the end of this time, if sufficient funds have not been collected, the keeper will take possession of personal property.. This property will be sold at an execution of sale, and the proceeds sufficient to satisy thejudgment will be given to the judgment creditor... As with a till tap, the keeper is a member of a law enforcement agency...

If the judgment debtor is in individual who does not own his own business, the choices for enforcing the judgment is more limited... Then the bank levy is the most common enforcement in this situation.. If the name of the debtor's bank is known, the law enforcement agency can levy all the funds in the debtor's bank account(s). Upon notice of the levy, the bank will turn over the law enforcement agency serving the notice all the funds in the debtor's account on the date the notice is received, up to the amount necessary to satisfy the judgment...

5. What are the advantages and disadvantages of a till tap? When would a till tap not be an effective procedure to use to enforce a judgment?
A disadvantage is if say the business is a furniture store, and does not have very much walk-in traffic, it may take longer then just few hours to collect enough funds to satisy the judgment and keeping the agent on the premises can become expensive.
However, one advantage is that with some businesses, say, fast food, it may only take staying on the premises through the lunch hour to satisfy the judgment...
A till tap would offer little comfort if the judgment creditor is unlikely to recover the entire amount of the judgment from the debtor..

6. If property of a debtor is seized to satisfy a judgment and the property is sold at an execution sale, why are any excess funds obtained as a result of the sale returned to the judgment debtor? If the property that is seized is worth more than the amount of the debt, wouldn't it encourage debtors to pay their debts before seizure if they knew that the excess funds would go to the judgment creditor instead?

The phrase "satisfies the judgement" can only be interpreted one way. That namely the amount of the judgement if satisfied is punishment enough and if there is an "overage" after sale and seizure of property it rightfully belongs to the judgment debtor. Any seizure of the overage would not stand up in court as the judgement debtor has rights too and these rights must be protected as vigorously as those of the judgement creditor.

7. If the judgment debtor is an individual who does not own his or her own business, what methods can be used to enforce the judgment?
If the judgment debtor is in individual who does not own his own business, the choices for enforcing the judgment is more limited... Then the bank levy is the most common enforcement in this situation.. If the name of the debtor's bank is known, the law enforcement agency can levy all the funds in the debtor's bank account(s). Upon notice of the levy, the bank will turn over the law enforcement agency serving the notice all the funds in the debtor's account on the date the notice is received, up to the amount necessary to satisfy the judgment...
A lien on the debtor's property and possibly a wage garnishment could also be effective methods....


8. What are the disadvantages of taking the oral examination of the judgment debtor? What can you do to help eliminate some of the disadvantages?
The disadvantage is that is the the debtor may state during the examination that he/she does not recall certain information..And for that reason it is a good idea to have the debtor bring with him/her documents such as ledgers, savings account numbers, and grant deeds, so that the debtor can refer to the documents to answer the questions..


9. Why is it a good idea to first check with the client in attempting to locate assets of the debtor? What information might the client have that would assist in locating assets?
It is a good idea because the client might have pertinent information about the debtor.... The client might have a returned check from the debtor, a financial application, or a report from a credit reporting agency..


10. Why do you need to know the location of assets of the debtor in order to enforce the judgment?
You need to know the location of the assets of the debtor so that you can give instructions to the law enforcement agency when it comes time to enforce the judgement.