Pre-Trial Advocacy

Week of 1-17-11

20 January

Trial lawyers > litigators > corporate > tax > ERISA
"The nuts and bolts of putting together the evidence."
The course is not about substantive law; it's about litigation. The dispute is almost never about the elements themselves: it's about figuring out how to prove the elements.
The unduspited facts memo #1
- We are going to venue this in US District Court for Western District of WI. The first part of the fact pattern is the jurisdictional part.
- Next comes the "what happened" part: Pappas got hired, then fired.
The employment agreement. 90% of employees are not under a contract.
There will be 2 claims: a contract claim, and a defamation claim.
We are not going to address the psychiatric impairment issues; it might be possible to mount an employment discrimination claim, but we are not going to go there.
The law materials will guide us about elements and defenses; also, what are jury questions and what are questions of law.
Outline of the legal discussion: these are the things that need to be proved.
1. Breach of contract: Was someone damaged by a material brief of the contract? Defenses are in italics
  1. Proof that there's a valid and binding contract (an easy issue in this case, but it's not always so clear-cut) The contract wasn't valid.
  2. A material breach (did anyone violate a provision of the contract, and if so, was it material?) There was no material breach. There was prior breach (also needs to be material).
  3. Causation: did the material breach cause damage? This didn't cause any harm.
  4. Damages: the amount of harm It was $0
2. Defamation (this tort encompasses libel and slander, by the way)
  1. Statement of fact (not opinion) It was opinion, not a fact.
  2. False It was the truth; this may be at issue for us.
  3. Relates to plaintiff It wasn't specific to Pappas.
  4. Tends to lower esteem of plaintiff in the eyes of a third party
  5. Causation This is always a tough one.
  6. Damages
  7. No privilege, or abuse of privilege Common interest privilege.
Always go to the jury instructions first, and also read the statute.
Organizing materials around the jury instruction will help the judge understand, e.g., your summaryjudgment motion.
You might not want to file a defamation claim (even if you have a great case), just because you don't want it reiterated zillions of times in public, regardless of the outcome.
When you get a complaint, find out immediately when it was served. Good rule of thumb: start counting from the filing date (it's the worst case scenario).
Generally speaking, you'll get a complaint just before the answer is due, and you'll need to whip out an answer, then gather the facts and file an amended answer (you get 1 amendment without leave of the court).
And another thing: always ask your client what they want to accomplish. Winning on the merits is different from paying less than $0.5M which is different from having these four people deposed. Knowing the client's true objectives allows you to serve them better.
Case analysis memorandum: the claims, the defenses, and the facts you'll use on them. See the last ¶ in the undisputed facts memo. We'll need to identify which issues are decided by the court as opposed to by the jury. Why is that a big deal? Because we want to get to the jury, and that means we have to get past dismissal on points of law. No more than 5 pages; less is welcome, but do cover the subject. This will be the foundation for pretty much everything we do in the case.
Also don't worry about who the proper defendant should be (i.e., the individual or the corporation).
Three important guiding thoughts:
1. What is the purpose (for each action: putting a fact in a complaint, asking this question, etc.)
2. Who is the audience (and how do they need things presented)
3. Format requirements (from knowing the rules of civil procedure, to the judge's standing orders, to local rules, etc.)