AHS318_Sp11_u04_01_27_11_PDF

AHS318_Sp11_u04_01_27_11_PDF - Civil Procedure and Trial...

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Unformatted text preview: Civil Procedure and Trial Practice Law for Health Care Professionals Unit 4 January 27, 2011 1 2 Civil Procedure and Trial Practice Steps in a Lawsuit Filing of a complaint Interrogatories, depositions, requests for production Motions for Summary Judgment Settlement Negotiations Trial Summons and complaint Service on the defendant Answers, Counterclaims, Cross-claims, Motions to dismiss Cross- Discovery Civil Procedure and Trial Practice Judgment Post Trial Motions Appeals Attorney Client Privilege Once the party engages an attorney to represent her, all communications between the client and the attorney are privileged and are generally not subject to disclosure Privilege exists because the client is seeking legal advice Privilege exists to allow clients to be completely candid with counsel 3 4 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Attorney Client Privilege Generally, the attorney’s documents, notes, etc. are deemed work product and not discoverable The mere fact that a party sent a document to the attorney does not make it privileged If multiple Defendants are named, the attorney(s) involved will have to determine if any conflicts of interest exist and whether she can represent more than one of the defendants i.e., physician and hospital are both named in the lawsuit – the same attorney may or may not be able to represent both Defendants waivers 5 Privileged Documents Documents that are considered privileged and confidential must handle in accordance with the applicable rules regarding same or the privilege may be lost Documents do not automatically become privileged just because they are labeled “confidential,” privileged,” or “quality assurance material” Handle documents and other communications appropriately 6 1 Civil Procedure and Trial Practice Plaintiff Must be a real party in interest; must have an interest in the outcome Meritorious claim Pleadings Written statements of fact and law filed with the court by the parties Defendant Parties Party that files the complaint Must have standing Civil Procedure and Trial Practice That party against whom the complaint is made Fictitious parties are often named Third parties – additional defendants may be added pursuant to the applicable rules of civil procedure Parties must have an interest in the outcome of lawsuit Complaint Demurrer Answers 7 8 Civil Procedure and Trial Practice Complaint Contains a short statement outlining the cause of action Court must have personal jurisdiction and subject matter jurisdiction Complaint must be filed in the proper court Must be sufficient Medical malpractice cases are generally pled with particularity particularity Must request a demand for relief Civil Procedure and Trial Practice Complaint must be filed in the proper venue Relief is what you are seeking from the court – i.e., money damages Plaintiff must declare if she demands a jury trial – a jury trial is not automatic Federal vs. State Circuit vs. District Multiple factors will need to be considered when determining Multiple factors will need to be considered when determining where where to file “the place of the trial” In which county should complaint be filed Complaint must have been filed within the statute of limitations Complaint must name the proper parties 9 10 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Summons A document indicating that the complaint has been filed with the court Informs the defendant that a lawsuit has th th commenced Service Delivery of the Summons and Complaint Must be properly served Rules for service vary from one jurisdiction to another Service must be made to an authorized person 11 Generally, must be served by a person age 19 or over must be served by person age 19 or over Rules of civil procedure will outline how long the Plaintiff has to serve the Defendant i.e., within 120 days of filing the complaint Some jurisdictions will allow service by certified mail Service can be to an authorized agent Agent identified in records filed with Secretary of State’s office 12 2 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Improper Service Will result in the court not having jurisdiction over the Defendant Demurrer A formal objection by one of the parties to a lawsuit that the evidence submitted is not sufficient to support the claim not sufficient to support the claim 13 14 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Answers Must either admit or deny the allegations in the claim Failure to admit or deny will result in an Failure to admit or deny will result in an admission admission Generally, the Defendant has thirty (30) days to submit answers May need to file motions prior to submitting answers Counterclaims Defendant files a complaint against the Plaintiff in response to the lawsuit Need to determine if there are sufficient if th grounds grounds to file a counterclaim Same rules for filing and service will apply to counterclaims 15 16 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Default Judgment If the Defendant fails to answer the complaint, the Plaintiff may file for a default judgment The rules for default judgments will vary from one jurisdiction to another Recent case in Alabama in which the Plaintiff was awarded $2.5 million dollars via a default judgment Note Inform counsel and/or insurance carrier immediately upon receipt of complaint 17 Counsel needs to prepare answers and/or motions May need to file a counterclaim 18 3 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Discovery Discovery is the process of investigating the facts of the case before trial Purpose of discovery is to learn everything di there is to know about the case before going to trial Do not withhold evidence from your attorney Methods of Discovery Interrogatories Depositions Answers Request for production of documents Subpoenas 19 20 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Depositions Interrogatories Written questions submitted to a party Sworn testimony Responses are made under oath Rules of civil procedure will dictate the di th number of interrogatories Can be either oral or written, generally oral Formal proceeding Court reporter present Attorneys for Plaintiff and Defendant present Can be videotaped and played during the trial Witness will receive a typed copy of testimony – need to review and make any corrections within the allotted time 21 22 Civil Procedure and Trial Practice Depositions May take depositions of parties and non-parties nonDepositions of a party do not require a subpoena subpoena Civil Procedure and Trial Practice Employees of hospital may have to give depositions Depositions of non-parties require a subpoena non Former employees may be subpoenaed 23 Preparation for Depositions Meetings with counsel Review documents Answer questions Refrain from discussing case with cocoworkers, family, friends, etc. 24 4 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Subpoenas Subpoena – issued under the authority of the court to compel either appearance and/or production of documents May be requested by either Plaintiff or Pl Defendant Subpoena duces tecum – bring the documents with you Failure to comply with subpoena may result in contempt of court Subpoenas Subpoenas are time sensitive Subpoenas issued to non-parties are nongenerally preceded by a notice of intent to ll serve subpoena If there are no objections, entity responds 25 26 Civil Procedure and Trial Practice Subpoenas May file a motion to quash the subpoena Means to vacate, nullify Parties to the suit are entitled to the information submitted in response to the subpoena In Camera Inspection Party files a motion to have documents inspected by the Judge in chambers Intent is to have Judge determine what may may be revealed to the jury Process used for information considered to be highly sensitive 27 28 Civil Procedure and Trial Practice Summary Judgment Party is entitled to summary judgment when there is no dispute of material fact and the party is entitled judgment as and the party is entitled judgment as a matter matter of law Either party may file a motion for summary judgment Anatomy of a Trial PrePre-Trial Motions 29 Motions in limine Seating of jury Pool Voir dire Selection of the jury Each party is entitled to a number of strikes, i.e., 3 strikes and strikes for cause 30 5 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Expert Witnesses Engaged to testify as to the standard of care and whether there was a breach in the standard of care Must be qualified Anatomy of a Trial Opening statements Education/training Skill and expertise Experience in the respective field Plaintiff’s case Expert witness is not always required Plaintiff goes first Plaintiff conducts direct examination of witnesses Defendant conducts cross examination i.e., foreign objects left in place following surgery 31 32 Civil Procedure and Trial Practice Civil Civil Procedure and Trial Practice Anatomy of a Trial Defense makes a motion for a directed verdict on grounds that Plaintiff failed to prove her claim prove her claim Defense puts on its case and conducts direct examination of its witnesses Anatomy of a Trial At conclusion of Defendant’s case, Defendant will renew her motion for directed verdict directed verdict Closing arguments Plaintiff will conduct cross examination of witnesses Plaintiff Defendant Plaintiff’s Rebuttal 33 34 Civil Procedure and Trial Practice Anatomy of a Trial Jury instructions Jury deliberations Defenses Good Samaritan Statutes Poll the jury Post trial motions/Appeals 35 Must act as a reasonably prudent person under the same or similar circumstances Captain of the ship doctrine Jury questions Verdict Civil Procedure and Trial Practice OR procedures procedures Assumption of the risk Contributory negligence Comparative Negligence Borrowed Servant Doctrine Intervening Cause Sovereign Immunity 36 6 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Theory of Joint and Several Liability All Defendants are responsible for the judgment – Plaintiff can collect entire amount from one Defendant or multiple amount from one Defendant or multiple defendants defendants Sovereign Immunity Refers to the common law doctrine by which federal and state governments have historically been immune from liability historically been immune from liability Federal Tort Claims Act 37 38 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Federal Tort Claims Act Overview The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 26712680, is the statute by which the United States authorizes tort suits to be brought against itself. As a result of the common law doctrine of sovereign immunity, “the United States cannot be sued without its consent. Congress alone has the power to waive or qualify that immunity. In 1946, by enacting the FTCA, Congress waived sovereign immunity for some tort suits. With exceptions, it made the United States liable: for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Damages Nominal - minimal Compensatory – reparation for the injuries/damages, inclusive of medical costs injuries/damages, inclusive of medical costs Punitive – punishment, intended to deter similar activity in the future http://www.fas.org/sgp/crs/misc/95-717.pdf For example, 3 times compensatory damages Statutes may play a role in the amount of damages that can be awarded 39 40 Civil Procedure and Trial Practice Civil Procedure and Trial Practice Execution of Judgment Parties have to comply with the judgment If defendant appeals judgment, she must post a bond pursuant to the applicable th rules Behavior During a Trial Dress and act professional Witnesses are generally not allowed to listen to the trial 41 Exception – 30(b)(6) witness – corporate representative Stand when judge and jury enter and leave the Stand when judge and jury enter and leave the courtroom courtroom Do not talk during the proceedings Turn off cell phones Cannot have camera phones in Federal Court and some State Courts 42 7 QUESTIONS 43 8 ...
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This note was uploaded on 08/21/2011 for the course AHS 318 taught by Professor Estep during the Spring '11 term at University of Alabama at Birmingham.

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