Civil Procedure I

27 October

• Meet and confer meeting. We did it.
• Comical disagreements about what got resolved: this is why you send a confirming letter.
• Rule 26(c): motion to protect. This is the opposite of a motion to compel. It blocks discovery into something. When would you use this? First, if you just want to make it clear that you don't intend to turn over something. More importantly, though, if you need to prevent the other side from getting some information you really don't think they should have (i.e., via subpoena)
• Jason Knutson was the defense attorney in the deposition demo.
• Basics in strategy. The three main goals: gather information, pin down testimony, obtain trial testimony.
• In a sense, we want to limit what the witness can testify to.
• Depositions can be used to get the testimony of people who won't be at the trial.
• Open-ended question: Who, what, when, where, why, which, how, describe, explain. Every open-ended question can be asked by beginning with one of those nine words: if that's the first word in your question, you know you are asking an open-ended question. These are designed to get information (as opposed to leading or suggestive questions).
• Seal-off question: Want to be sure we've gotten everything. Did anything else happen? Are there any other incidents? Have you told me everything about that incident? You ask a few times, until the person says no. At that point you have sealed off the topic.
• T-Funnels: Begin with broad questions, then drill down. Get the lay of the land. When has x happened? When else? When else? Don't assume that a narrow answer is complete. Then seal off: are there any other times? Then, from the list of things that was elicited, repeat the process for individual elements.
• Don't ask "do you remember?" because that gives the witness an out.
• How do you really seal off? There's a presumptive limit of 10 depositions and 7 hrs/deposition. We want to exhaust the witness's knowledge/recollection. Then, if witnesses change their story or add to their testimony, they will pay a credibility price.
• You can do a little bit of cross examination in deposition. It started already, in fact. We ask "admit that ___." Cross-examiners get into trouble when they try to get a witness to accept an argumentative version of the case. To control this, break questions down into smaller and smaller units, in order to make them bite-size and reasonable: take the evaluative elements out of the questions.

29 October

• Objections:
  1. Vague
  2. Privilege/Work-product (iron clad)
  3. Compound
  4. Speculative
  5. Relevance
  6. Not Qualified
  7. Privacy (may not work)
• Deposition may be the most important of the discovery tools; previously we've only been dealing with opposing lawyers. Suddenly, though, we get to interact with witnesses.
• Read the entire handout from Schwartz on the paper.
• Bennett: a 7th circuit case decided before Twombly. As long as you say anything that puts the defendant on notice, that's enough. Discussing this one is optional; Tamayo is not: most authoritative decision interpreting the Twombly standard.
• We can now have 2,550 words! Don't need introduction and QP/BA. They maybe fulfil the same function.
• Write spoilers, not teasers.
• Always did one level below the generic. "Our cause of action won't be dismissed because we do state a claim." That is generic-- that rule applies to every case. How does it work in our case?
• In the 12(b)(6) motion, facts come from the complaint. In the summary judgment motion, they come from the motion.
• JMOL = Judgment as a Matter Of Law
• No JMOL for D != JMOL for P. And vice-versa. That means there are facts in controversy, or the facts don't fall into a settled area of law.

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• Senior partner meetings. 15-30 sec introductory statement. 1.5-2 min summary of argument. Then discussion.
• Script some stuff with big fonts. Leave space between things.
• Go in with the expectation that you'll be talking for 10 minutes.
• Think: what are the most important points from the memo that we want the senior partner to understand? Make those come first.
• Don't forget to read both the memo, the complaint, and the defendants' brief before the conference. Go ahead and supplement rule numbers with a prompting (i.e., 12(b)(6), which says the complaint doesn't state a claim upon which relief can be granted).
• Make eye contact. Re-read the rubric.
• Back to memos. Done.
• Briefs: persuasion. That's what is coming next.
• Logic and facts well presented are persuasive; honesty and precision are key. The court doesn't want to be yelled at, and this won't convince anyone.
• Policy doesn't come up a great deal at trial, but it comes up a lot at the supreme court level. Briefs may be a matter of public record.
• Judges have the uh-oh list of lawyers: laughed at when they win, and subject to extra scrutiny, because of their reputation for troublesome briefs.