Civil Litigation AudioLearn

INTRODUCTION

This lecture will review the major turning points of civil litigation, using examples from the real world, such as the case at the heart of A Civil Action, which is now known as the Woburn Toxic Trial. It can be difficult to truly understand how the procedural, evidentiary, and substantive laws weave together during litigation without context. During this lecture, you will learn how lawyers navigate the justice system when real people and real issues are at stake.

Civil litigation is both an art and a science. Trial lawyers must know how to do pre trial counseling, investigation, and preparation. They must draft pleadings and motions, take witness depositions, negotiate, and work with expert witnesses. They must use the Rules of Civil Procedure and Rules of Evidence to win battles, and eventually the war, against the other side. This podcast will explain the contours of litigating in civil courts. The lecture will touch on many topics that you may be familiar with from other classes, like civil procedure, but we will approach the subject matter from more practical angles. Many of the areas were covered in other courses but very briefly like discovery of electronically stored information, and alternative dispute resolution. Since those areas plae key roles in the civil litigation system, this podcast goes into depth on these issues, to prepare lawyers to handle cases in court.

Let’s begin.

I. OVERVIEW OF CIVIL LITIGATION

A civil litigation system serves two connected objectives: investigating the facts of the case and adjudicating issues of law or fact that remain in dispute. Of these functions, investigating and resolving questions of fact is more important. Sir William Blackstone, the English jurist, once emphasized how crucial the fact-finding aspect of the judicial system truly is: “[E]xperience will abundantly show,” he said, “that above a hundred of our lawsuits arise from disputed facts, for

one where the law is doubted of.” In other words, when the facts in dispute are resolved, it is usually easy to resolve the legal disputes. In the modern judicial system, resolving the facts, the truth of what happened, typically resolves the entire case, which is why most cases settle or are dismissed before trial.

Statistically, civil litigation has tilted dramatically toward determining the facts long before a jury trial. Consider that when the Federal Rules of Civil Procedure were promulgated in 1926, one fifth of all civil cases were resolved at a jury trial. By 1940, the proportion of cases tried declined to 15.2%. Jury trials in 2002 constituted less than one percent (0.6% to be exact) of all state court dispositions. Federal jury trials have also declined in a similar proportion.

Although fewer and fewer civil cases now go to trial, the best way to prepare a case is with the assumption that you will have to win a trial. Lawyers need to find facts in evidence to support the client’s position. The sooner those facts are discovered, and the sooner differences in each side’s version of the truth are resolved, the closer to resolution the case will be. There are seven stages of civil litigation:

Now let’s discuss which rules govern the civil court system. A. Which Rules Apply?

Court rules govern procedures for the conduct of business in the courts. They often concern such matters as time limitations, pleadings allowed, and grounds for appeal. Each jurisdiction has its own procedure for how court rules are promulgated, which is generally some combination of legislative and judicial action.

In general, both federal and state courts are governed by statutory law that establishes the powers and jurisdiction of the courts and some procedural matters. In addition, courts are usually authorized by these statutes to adopt rules that further define procedures and processes of the courts.

In the federal system, the Supreme Court promulgates court rules for itself and the lower federal courts under the authority of 28 U.S.C. § 2072. Rules of general applicability include the Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure.

1. Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure govern disputes in the Federal District Courts throughout the United States. If you are on appeal in the federal circuit courts, however, the Federal Rules of Appellate Procedure apply.

2. Lower Federal Court Rules

Individual lower federal courts issue their own rules governing local practice. These rules generally concern the operation of the court and often supplement the rules of general application.

For instance, the District Court of Delaware has links to the following documents:

● Standing Orders, such as how the court handles electronic service of process in pro se cases

● Local Policies, such as the court’s policy on handling of electronic transcripts, and

● Default Standards, such as the court’s standard discovery orders and standard orders for access to source code during the discovery process.

Civil trial lawyers should familiarize themselves with all local and standing orders.

3. Federal Rules of Evidence

The Federal Rules of Evidence are a set of rules which govern the introduction of evidence at civil and criminal trials in United States federal trial courts. The current rules were initially passed by Congress in 1975, after several years of drafting by the Supreme Court. The Federal Rules of Evidence are broken down into 11 articles:

The Federal Rules of Evidence are more straightforward then the Rules of Civil Procedure. The most updated version of the Rules can be viewed in its entirety on www.rules of evidence.org. Lawyers should always consult the website to be sure that no recent changes have been overlooked.

4. State Rules

Each state has court rules governing the operation of its courts. In most instances, they are based on the Federal Rules. However, a lawyer must always read the state rules to be certain that they

understand the nuances applicable in state court. Almost one million cases are filed in federal court each year, but there are 30 million civil cases filed in the state courts. This means that the state dockets are usually crowded, and many jurisdictions have their own rules about timing and procedure to help them manage the much larger dockets.

Here are two examples of how the state’s procedural rules differ from their federal counterparts:

● Computation of Filing Deadlines - The federal and state rules often differ slightly in the computation of certain filing deadlines. Although differing slightly can mean they differ by a single day, but miscalculating a deadline can be catastrophic for your case. Lawyers must always carefully review computational rules, no matter how many times they have handled similar cases.

● Commencement of Action - Even in states where the procedural rules are modeled closely on the Federal Rules of Civil Procedure, lawyers must still be able to interpret the requirements of both. For example, in Kentucky, the state and federal rules provide that a civil action is commenced with the filing of a complaint. But Kentucky’s rule adds “and the issuance of a summons or warning order herein in good faith.” This could be extremely important in cases involving statutes of limitations. Filing a complaint in federal court right before the deadline is sufficient. Yet under Kentucky law, the rules require several additional steps to be deemed filed such as issuing and serving a summons.

4. Judge’s Standing Orders In both state and federal court, judges often have their own standing orders which enumerate procedure in that judge’s courtroom. These are very important, since they often include things such as the judge’s preference for type and font, page limitations, scheduling concerns, and whether the judge wants paper motions delivered to chambers.

5. Case-Specific Rules There are specific rules for certain kinds of civil cases. Each federal district court has adopted local patent rules, for instance, which govern patent cases.

B. The Initial Client Interview

The initial client interview sets the tone for the attorney client relationship. Lawyers are cautious about which clients they accept, particularly plaintiff lawyers, who are usually working on a contingent fee case. Many lawyers use an intake form containing several preliminary questions about the person and their case. At the outset, the attorney will want to know when potential causes of action arose, and whether the statute of limitations have run. Other information, such as whether the prospective client has an active bankruptcy proceeding, is also crucial. If the person has an open bankruptcy case, the lawyer will need to communicate directly with the bankruptcy trustee in addition to the client, since any amount which is recovered becomes an asset the trustee can use to satisfy creditors.

C. Investigation of the Cause of Action

Informal investigation must be undertaken by the lawyer prior to the discovery phase in a lawsuit, which is a more formal investigation. Before a lawyer takes a case, they need to know as much information as possible about the facts, evidence, and witnesses. During the case, the lawyer needs to investigate in order to compile relevant evidence for trial.

Although some lawyers rely extensively on paralegals, investigators, and associates, all lawyers should understand the nuts and bolts of investigation. Even if the lawyer out-sources many of the tasks, the lawyer is still the focal point of the litigation and must direct and analyze the results.

The investigation can be broken into phases:

Step 1. Initial Fact Investigation

First, speak with the client. Get the story including background information, fact chronology, cast of characters and relevant documents. If client is a corporation, understand the client's

business/industry, structure and strategic imperatives and assess the impact that litigation may have on the company.

Second, always identify early risks. Begin to organize strengths and weaknesses of the case, such as witness credibility, factual inconsistencies, evidentiary issues and business considerations.

Third, identify what you still need to know. Even after thorough early investigation, there are still unanswered questions. A lawyer should always ask “Do I have a prima facie case and, if not, what do I still need?”

Step 2. Initial Legal Investigation

After the factual analysis, the lawyer must identify procedural issues like the statute of limitations, jurisdictional, or geographic issues. Once the lawyer takes on the case, it is essential to identify and outline the legal issues. Determine your legal obstacles to winning: Is it possible to sustain a viable cause of action and/or defense? Conduct research for supporting case law, relevant statutes and codes.

Step 3. Determine Case Value.

The plaintiff and the defense both need to determine what the case could potentially be worth. This is accomplished by researching previous verdicts and settlement amounts in similar cases.

Plaintiff lawyers should also look at the previous cases specific to the defendant. Find out how other cases involving this defendant played out, which will help refine a possible range of values.

Review news and media concerning litigant cases, filings and other such matters (especially those that have been potentially suppressed).

Step 4. Identify Strategic Factors Which Could Impact the Case.

Consider the parties’ litigation tendencies. For example, do they consistently employ same the filing strategies, do they settle early, are they highly litigious, do they file an extreme number of motions to wear out the other party?

Identify judicial tendencies as well, such as, ruling patterns on legal issues which are critical to the case. Also obtain copies of relevant dispositive orders from similar cases.

Identify and gather documents relating to tendencies of opposing counsel, such as patterns in motion practice, previously employed strategies, success rates and experience with similar cases.

Search news and business articles, with a focus on negative news.

Step 5. Organize This Knowledge.

Organize and link the case facts, cast of characters and documents to your research and issues.

Review relationships between your facts, issues and research to identify case strengths and weaknesses and confirm that you can prove or defend the issues within your case.

List outstanding questions particular to your case to fill the factual and/or legal holes identified.

Step 6. Evaluate the Case and Discuss it with the Client.

With the facts and case law, the lawyer should be able to assess the likelihood of success, the approximate length of the litigation, the value of the case, as well as the anticipated costs.

The lawyers should manage client expectations by giving them a realistic report of your impression of the case. Good lawyers continue to update the client throughout the litigation, adjusting expectations when there are major issues which come up.

A lawyer should never, ever guarantee a specific outcome.

A Note on Electronic Case Management Software: There is now a burgeoning industry dedicated to providing software to help lawyers synthesize this knowledge. This software can help lawyers who are solo or in small firms compete with the vastly superior resources of larger firms. For example, you can begin listing facts from the case in the software, and eventually you will be able to sort through the facts to identify every witness and document proving the fact true or false. This helps exponentially when preparing a case for summary judgment or trial. At the same time, meticulously organized lawyers can track all of this information using their own forms and systems. The key is meticulous organization.

D. Drafting the Complaint and Answer

Despite all of the pre litigation steps that the plaintiff’s attorney has gone through, the case assessment or investigation is not complete until the end of the case. The first practical use of the investigation comes when it is time to draft the complaint, or for the defense, filing the answer or motion to dismiss.

1. The Complaint

When a lawyer drafts a complaint, the goal is to use the knowledge learned during the investigation to set forth their theory of the case. The complaint serves both legal and strategic goals. No case is filed until a complaint is filed within the proper jurisdiction and served on the defendants. At the same time, even drafting the complaint without filing it can sharpen the plaintiff’s view of the case, and in some instances, even convince the defendant to settle before litigation.

2. Strategic Purpose of the Complaint: Who is the Audience?

A complaint is asked to speak to several different audiences:

The Defendant is the primary audience. Federal Rule 8 says that the complaint must give notice to the defendant of the claims being asserted. In addition to notifying the defendant formally, consider how the complaint will impact other individuals associated with the defendant, particularly those who are named in the complaint. For example, if the case involves employment discrimination, the complaint will identify the actions of the plaintiff’s managers and coworkers.

The court and the court clerks are another audience. The complaint will need to hit upon all jurisdictional requirements, yet also be readable and appealing to the court. Overly dry complaints should be avoided, but so should complaints that include hyperbole, exaggeration, and insults.

The complaint will also speak to the expectations and experiences of the plaintiff. The lawyer should always have the client review and sign off on every statement contained in the complaint.

The media and public have access to the litigation, but there are very few instances when it makes strategic sense to play to the press.

3. Drafting Tips:

The list of drafting tips could easily be a hundred pages long. However, a complaint will be highly effective if it serves two functions well: defining the controversy and being persuasive.

A complaint must define the controversy, parties, and relief sought in the proceedings. A lawyer should use discretion by including only that which is necessary, and omitting extraneous information.

At the same time, a complaint should not be a rote recitation of facts and dates. Although the complaint is to be read objectively, it is an opportunity to frame the case in the most persuasive way possible. The complaint should emphasize the strengths of the plaintiff’s claims.

4.

Mechanics of the Complaint

Lawyers must do the following for every complaint:

1) Check the federal, state and local rules for requirements for filing a complaint.

2) Properly allege subject matter jurisdiction, personal jurisdiction, and venue, citing appropriate statutes and cases supporting your claims. The aim to show the court it should hear the complaint. For example, a federal court has jurisdiction if the claims are between citizens of different states and involve damages of more than $75,000, or if the complaint alleges claims arising under the Constitution or under federal laws. The complaint should state how the case satisfies these conditions.

3) Draft a statement of factual allegations.

4) Make each legal claim a separate count. For example, if the claims include discrimination, breach of contract, and intentional infliction of emotional distress, each count will be numbered, and each with its own heading. At the start of each section, for each claim, start with a sentence that you “incorporate by reference all prior factual allegations herein.”

5) Plead facts with particularity if the claim requires it, as in a fraud claim.

6) Offer expert support in the complaint if required by law. Medical malpractice claims, for example, often require an affidavit from a medical expert alleging that the conduct fell below the appropriate standard of care. Rely on the research from the pre investigation phase to ensure you are informed about what your claims require in the appropriate jurisdiction.

7) Plead litigation prerequisites if the claim requires it, like employment discrimination cases under Title VII, which must first be filed with the EEOC or state agency with a right to sue letter prior to filing in court.

8) Request the relief the plaintiff is seeking, like money damages, an injunction, attorneys’ fees, and court costs. If the plaintiff seeks punitive damages, the complaint must make specific factual allegations, like a culpable state of mind.

9) Ask for a jury trial. Remember, both parties can waive a jury trial at a later date, but not pleading jury trial could lock you in to a bench trial.

4. The Answer

Drafting an answer often seems like a deceptively easy task to a young lawyer. On the face of an answer, it may appear that the defendant’s answer simply needs to deny all of the allegations and raise boilerplate affirmative defenses. In reality, most of the work which goes into the Answer happens off the page. Here are the proper steps to drafting an Answer.

First, calculate and calendar the deadline to file the answer. Federal Rule of Civil Procedure 12(a)(1)(A) requires service of an answer "within 20 days after being served with the summons and complaint. . ." This gives a lawyer no time to waste. If the lawyer has not already done so, they should contact the client and request their file on the matter and any other related documents. The information you obtain in this initial meeting will dictate your entire plan of action in preparing the answer.

Determine if the action can or should be removed to federal court. Review 28 U.S.C. §§1331, 1332 and Federal Rule of Civil Procedure 81(c) for applicable removal statutes/rules.

Evaluate whether you should file an early motion to dismiss. Review Federal Rule of Civil Procedure 12(b) for the defenses you can assert in a motion to dismiss. Those defenses include:

(1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

Evaluate the complaint to determine if it meets particularity standards. For example, if the complaint contains a fraud count, Federal Rules of Civil Procedure 9(b) and 12(b)(6) may permit you to file a motion to dismiss for failure to plead fraud with particularity as to that count.

Evaluate whether it makes sense to file a motion for a more definite statement or motion to strike. See Federal Rules of Civil Procedure 12(e) and (f) for the pleading standards.

Evaluate whether the venue is proper. Federal Rule of Civil Procedure 12(b)(3) allows a motion to dismiss for improper venue.

A motion to transfer can only follow an Answer. See 28 U.S.C. § 1404. If you plan on filing a motion to transfer venue based upon forum non conveniens, raise that ground as an affirmative defense in your answer.

You must file an Answer if you are not filing a motion to dismiss, a motion to strike or a motion for a more definite statement.

6. Types of Denials:

Admit or deny each material allegation in the complaint. See Federal Rule of Civil Procedure 8(b) There are three types of denials.

● An unqualified denial is proper if the allegation is contested in its entirety such as "defendant denies the allegations contained in paragraph 1 of the complaint."

● If the client contests only a portion of a particular allegation, admit that part which is true and deny the remainder of the allegation. For example, "defendant admits that venue is

proper but denies the remainder of the allegations contained in paragraph 2 of the complaint."

● If the client lacks information sufficient to either admit or deny a particular allegation, Rule 8(b) permits you to respond accordingly, and that response "has the effect of a denial." An example of this form of denial is "defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the complaint."

● Research and raise all potential affirmative defenses. Federal Rules of Civil Procedure 8(c) and 12 require you to raise all potentially applicable affirmative defenses in the Answer. Good practice dictates that you carefully research the claims made in the complaint and determine which affirmative defenses may apply. Do not just rely on the list of affirmative defenses contained in Rule 8(c) and list all of them. An affirmative defense is any allegation upon which the defendant, rather than the plaintiff, bears the ultimate burden of proof. In many jurisdictions, an affirmative defense is waived if not asserted in the answer.

● Determine whether a counterclaim, cross claim and/or a third party complaint is proper. Review Federal Rules of Civil Procedure 13 and 14. If the claim is a compulsory counterclaim, it must generally be filed at the time you file a responsive pleading.

Key Takeaway: The failure to deny a specific allegation is considered an admission, so be sure to respond to each allegation of a complaint, including WHEREFORE and unnumbered paragraphs. It is good practice to include a sentence stating, in substance, "defendant denies each and every material allegation not heretofore controverted and demands strict proof thereof."

E. Avoiding Rule 11 Sanctions

Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments

that have no evidentiary support. The Rule is designed to ensure that claims brought in the federal courts have merit and are not brought for an improper purpose. To accomplish these goals, the Rule imposes upon an attorney or litigant a duty to make a reasonable examination of the merits of and motives behind a claim before signing a paper and filing it with the court. Rule 11 imposes mandatory sanctions for failure to comply with this duty.

As you can see, this brings us full circle. We began this section discussing the importance of presuit investigation and research, and now we see how Rule 11 will come back to haunt lawyers if they do not do their due diligence.

At the same time, some lawyers use Rule 11 as a weapon to harass plaintiff’s lawyers, in some ways turning the original purpose of Rule 11 on its head. To examine this a little closer, consider how this played out in the Woburn Toxic Trial.

Case Spotlight: Woburn Toxic Trial

In 1981, Anne Anderson’s son was diagnosed with leukemia. Anderson began investigating whether there was something in the water that caused the epidemic. For 20 years, over two dozen people who lived in the small town of Woburn, Massachusetts had been afflicted with the disease. Eventually, Anderson hired a lawyer, organized other citizens of the town, and filed a lawsuit against two companies for dumping chemicals in the water. The resulting court case became famous when the plaintiff’s lawyer, Jan Jan Schlichtmann, wrote a book about the ordeal. The book, A Civil Action, was later made into a movie starring John Travolta. The book remains a classic example of how a civil trial plays out in the justice system.

In the late 1970s, civil engineers discovered that local wells G and H were contaminated with several suspected carcinogens, including trichloroethylene (T C E). The wells were subsequently shut down. Woburn had a long history of industrial activity, including a number of tanneries. Two major corporations, W.R. Grace Co. and Beatrice Foods, owned factories and plants in the area.

The citizens first consulted Joe Mulligan, a Boston lawyer, who agreed to represent the citizens in a lawsuit against anyone responsible for the contamination of the local wells. In early 1981, the Center for Disease Control issued a report on the Woburn cancer cluster that showed the cancer rate was at least seven times higher than normal, but did not definitively connect the well contamination with the leukemia cases. The plaintiffs had signed a contingency fee agreement, which meant that the law firm would food the bill for the litigation. It did not take long to realize that the litigation would be expensive and time-consuming. Mulligan assigned a young lawyer, Schlichtmann, to take on the case. The Woburn case had been neglected at the firm, and one of the senior attorneys warned him that the Woburn case was “a black hole.”

As the statute of limitations on the case approached, Schlichtmann teamed up with a non profit firm in Washington, DC, that was looking for an environmental case to pursue. He turned the case over to the firm but stayed on as local counsel. They filed a complaint eight days before the statute of limitations ran in May 1982, claiming that Beatrice Foods and the W.R. Grace Company were responsible for contaminating the wells and thereby causing the leukemia cluster in Woburn. Grace owned a manufacturing plant north of Woburn. Beatrice Foods owned the Riley Tannery in the same area.

Beatrice Foods hired Jerome Facher, an experienced trial lawyer. William Cheeseman represented Grace. Cheeseman was a specialist in pre trial strategy rather than trials. He took the lead on the pleading phase of the case. Rather than filing an Answer, Cheeseman used Rule 11 to try to kill the case right away. The motion charged Schlichtmann with filing a frivolous and unfounded lawsuit, and other suspect ethical behavior such as soliciting clients. The judge, Walter Jay Skinner, held a hearing on the motion. Schlichtmann refused to submit to cross examination by Cheeseman on the theory that doing so would violate his obligations to his clients. The hearing was conducted by Judge Skinner based on submitted questions by Cheeseman, and the Rule 11 motion was denied.

1. There are six steps in a pre litigation investigation: Initial fact investigation; initial legal investigation; determination of case’s value; identification of strategic factors; organization of research and information; and evaluation of the case and discussion with the client.

2. A lawyer drafting a complaint must review all federal and local rules carefully. The complaint must properly allege subject matter jurisdiction, personal jurisdiction, and venue, or else it may be dismissed.

3. Each legal claim must be a separate count in the complaint. Lawyers must also plead any special facts related to the cause of action, such as fraud, and must be aware of any special matters, like medical malpractice, requiring additional submissions of prove at the complaint stage.

4. If a cause of action requires exhaustion of administrative remedies, the complaint must state that the plaintiff properly notified the other party through the appropriate state or federal agency, and received a right to sue letter.

5. The failure to deny specific allegations in an Answer is considered an admission. As a result, lawyers should never simply include a blanket denial. Instead the lawyer should admit, deny, or deny without sufficient information each and every allegation in the complaint.

6. According to Rule 12(b), there are seven defenses you can assert in a motion to dismiss. Those defenses include: (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

QUIZ

7. The defendant only has 20 days from the day after being served with the summons and complaint to file an answer. See Fed. R. Civ. P. 12(a)(1)(A).

8. Lawyers should not guarantee outcomes when speaking to their clients. It is important to be forthright with clients about the strengths and weaknesses of the case.

9. Both federal and state rules leave room for judges to have control over certain court procedures. A judge’s standing orders enumerate procedure in that judge’s courtroom.

10. Pre litigation investigation includes evaluating a judge’s orders and patterns, the opposing counsel’s strategies and experiences, and the other party’s litigation history.

1. Name five of the 11 areas covered by the Federal Rules of Evidence?

Answer: Judicial Notice, Hearsay, Witnesses, Relevance, and Authentication.

2. When drafting a Complaint, who are the four “audiences” to keep in mind?

Answer: The defendants, the client, the court, and the public/press.

3. True or False: The failure to deny a specific allegation of the complaint is an admission.

Answer: True.

4. What are the three types of denials in an Answer?

Answer: An unqualified or uncontested denial. A partial denial. And a denial for insufficient information.

5. What are the three rules of general applicability which govern federal civil cases?

Answer: Rules of general applicability include the Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure.

[pause]

II. DISCOVERY

A. Philosophy Underpinning Discovery

Discovery is the centerpiece of civil litigation in this country. No area of law sees more activity in terms of rule making within the federal rules. The purpose of the civil discovery rules is for the playing field to be leveled, since both sides then have access to equal information and the sources for their opponent’s case. This avoids trial by surprise. Ultimately the goal of the justice system is for the court to reach the proper decision.

The summary judgment process, which is the lifeblood of modern civil litigation, depends on a robust discovery process in order to work. The summary judgment process is meant to determine if there is a triable issue, or if the case could be resolved without a trial. Summary judgment motions and responses are based on identifying facts which are learned in discovery. Although there are valid criticisms of summary judgment, it is a tool used to avoid going through the expense of trial if there is no reason to go to trial.

There are also downsides to relying so heavily on discovery. Discovery in the American judicial system is very labor intensive, costly, and takes a long time.