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NSBA Annual MeetingFriday, October 10, 2014
Litigation Essentials: Step-By-StepPresented by the Omaha Bar Association Young Lawyers Division
Introduction/Conclusion:Katie Kotlik, Abrahams KaslowHomero Vela, Kutak Rock
Presenters:Vicky Buter, Kutak Rock
Matt Reilly, Erickson SederstromKen Wentz III, Jackson Lewis
Joshua Yambor, Woodke & GibbonsJudicial Perspective: Hon. Patricia Lamberty
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NSBA Annual MeetingFriday, October 10, 2014
Litigation Essentials: Step-By-Step
Introduction:Katie Kotlik, Abrahams Kaslow
Homero Vela, Kutak Rock
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OUTLINE1. YOU'VE FILED SUIT, NOW WHAT?: COMPLETING SERVICE, RESPONDING
TO PLEADINGS, AND DOING DISCOVERY
2. THE LIABILITY OCTAGON: PINPOINTING THE DISPUTE AND DETERMINING LIABILITY
3. STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES
4. TAKE ME TO THE OTHER SIDE: IDENTIFYING OPPOSING STRATEGY, FINDING WEAKNESSES, AND ANTICIPATING DEFENSES
5. IF YOU CAN TALK THE TALK, THEN WALK THE WALK: PREPARING FOR TRIAL
6. SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE
7. WHOOPS! DID I DO THAT?: DISCUSSING LITIGATION MISTAKES AND CLEANING UP THE MESS
8. THE WAR IS OVER: FINISHING UP AFTER TRIAL
9. THINGS THAT MAKE YOU GO HMMMMMM: ANSWERING QUESTIONS
TAKEAWAYS CONCLUSION/THANK YOU
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You’ve Filed Suit, Now What?
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Pre-Complaint
Do not file suit too fast.Determine whether a viable claim exists or what has to be done to make it viable.Determine who are the proper parties to the action.Determine “where” the action must be brought.Anything you have to do before filing claims (i.e. exhaustion of administrative remedies)?
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The Complaint & Service
Utilize the applicable jury instructions to plead elements.Detailed allegations – use as RFA’s.Verify?Client reviewDo not cut and paste
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The Complaint & Service
ProofreadResearch – legal and otherwiseInclude praecipeSummonsServiceLitigation holdFirst appearance fee
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Victoria H. ButerKutak Rock LLP
Responding to PleadingsYou’ve been served – now
what?
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Calendar response deadlineIssue litigation holdRemoval
Can you remove? Do you want to remove?
Responding to PleadingsYou’ve been served – now what?
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Arbitration Can you compel Arbitration? Do you want to?
Motion to Dismiss Is there a valid Motion to Dismiss?
Personal JurisdictionFailure to State a Claim
Should a Motion to Dismiss be filed?Points to consider
Answer
You’ve been served – now what?
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What Discovery should I serve? Requests for Documents? Interrogatories? Requests for Admissions?
Timing of DiscoveryDepositions
Initial Discovery
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STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES
Joshua Yambor
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STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES
Proving Damages Medical expensesJury Instructions & Rules of EvidenceFair, Reasonable and NecessaryWhat/Who do I need to proveStipulations?Iowa v. Nebraska
Lost IncomePast/Future Loss of Earning Capacity – ExpertsWhat/Who do I need to proveGet your documents: Tax returns, W-9s, employment records
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The Liability Octagon:PINPOINTING THE DISPUTE AND DETERMINING LIABILITY
MATTHEW B. REILLY
ERICKSON | SEDERSTROM
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What Is the Claim?
Plaintiffs: Listen to your client
They don’t know what legal claim they have.
Defendants: Read the Complaint and talk to your client
Has the Plaintiff alleged sufficient facts to satisfy each element of the claim?
What facts are going to be in dispute?
E|S
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What are my defenses or potential counterclaims?
Affirmative Defenses: In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (Neb. Ct. R. Pldg. § 6-1108)
Also includes immunity and other common law defenses.
In an insurance defense case, be mindful of the scope of your retention when contemplating a counterclaim.
E|S
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How do the defenses affect the case?
Some defenses are completely exculpatory and on the pleadings
Immunities
Statute of limitations
Contractual releases
Value of the case: 0
Some only create fact questions or require proof Contributory negligence
Assumption of risk
Contractual defenses
Value of the case: proportional
E|S
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Third Party Liability
Is the named defendant liable?
Are there any other potentially liable parties?
Under what theory?
Be mindful of the statute of limitations.
E|S
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What are the claimed damages?
Economic vs. non-economic
What figures, if anything, are specially pleaded?
No contest of liability
Offer to Confess Judgment
Personal injury
Soft tissue (subjective) or objective complaints?
Does the law support the prayer for relief?
Be aware of development in case law
E|S
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Know your surroundings
Who is your judge?
How does he or she operate?
What forum are you in?
What would your prospective jury pool look like?
Who is opposing counsel?
E|S
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Victoria H. ButerKutak Rock LLP
Take Me to the Other Side: Identifying Opposing Strategy,
Finding Weaknesses and Anticipating Defenses
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Don’t underestimate your opponentIdentify elements of proof for
claims and defensesBe creative
Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
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Use the resources readily available to you Talk to your client (and listen) Talk to potential witnesses (where
appropriate) Review documents and testimony from your
opponent’s perspective Look at documents in isolation Look at publicly available documents
regarding your client, the opposing party and subject of the case
Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
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Don’t replace fact with fantasy Question your own case Don’t believe everything your client
tells you Look for gaps in what your client is
telling you
Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses
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If you can Talk the Talk, then Walk the WalkPREPARING FOR TRIAL
MATTHEW B. REILLY
ERICKSON | SEDERSTROM
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Create a Theme and Pinpoint your Theory
Start early!
Keep things clear and concise
This is your ultimate message to the court or jury
Be flexible
Need to adapt to unforeseen developments
E|S
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Elements of your Claim or Defense
Forget about winning or losing for a moment
What do I need to do to get my claim to the jury?
What do I need to do to take a claim away from the jury?
Go for the win - write your closing
If I can say this to the jury, I will win.
What evidence is necessary to be able to say what I need to say to win?
What testimony is necessary?
E|S
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Evidence Prep
Identify what you need to get into evidence to win the case.
Be sure to cover each and every claim or defense
Identify how you’re going to get that into evidence.
What is needed for authentication, foundation.
Hearsay concerns?
E|S
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Witness Prep
Review depositions
Also review all written or recorded statements and any other accounts
Testifying and non-testifying witnesses
Review reports
Factual and expert
Confirm witness availability
In-person meetings with important witnesses
E|S
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Briefs and Arguments
What does the court prefer?
How complex is the case?
Outline at a minimum
What are the issues?
What law applies?
Nebraska Civil Jury Instructions
E|S
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Setting the Tone
Voir Dire
Identify who you do and do not want.
What questions will assist in creating the ideal jury pool.
Opening Statement
First chance to outline the theory and establish the theme
Only make one first impression
E|S
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Pretrial Motions
Motions in Limine
Be selective
Narrowly confined to specific, important issues
Maintain credibility
Daubert/Schafersman I
Be sure you’ll win
E|S
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Miscellaneous
Make sure your witnesses know where they’re going and what they should wear
Write everything out
Evidence checklists
Direct/cross examination
Opening/closing
Objections to exhibits and anticipated testimony
Have copies
E|S
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SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE
Joshua Yambor
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SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE
Physical, Demonstrative & Documentary Evidence– What do I need to prove my case?
• Medical records and bills, Reports, Photographs, etc..– Is this evidence helpful?– How do I to get this exhibit into evidence?
– Be prepared!– Rules of Evidence– Self-Authenticating– Records custodians– Physicians– Stipulations
• Use of Depositions
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SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE
Is the witness unavailable? StipulationsDemonstrative Exhibits
- Will it assist the jury?- Get your equipment reserved (make sure
it works) (OBA Rents!)- Disclose it to the other side (and the
judge!)
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WHOOPS! DID I DO THAT?: DISCUSSING LITIGATION MISTAKES AND CLEANING UP THE
MESS
• Moving to Amend a pleading . . . then failing to file the Amended Pleading when the Motion is granted
• General Discussion
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The War is Over: Finishing Up After Trial
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Post-Trial
Motion for new trialMotion for JNOV (must ask for directed verdict)Motion for Fees?Costs?Appeal?
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Takeaways
• Prepare, prepare, prepare• Know your calendar • What/Who do I need; fair, reasonable, and necessary• Know your client, know the law and know where you are• Before drafting a complaint, fully research the opposing party,
including social media sites.• When drafting a complaint, use short sentences, similar to
requests for admission.• During trial, make sure you make a motion for directed verdict
to preserve your ability to file a Motion for JNOV post-trial.• Be Prepared!
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THINGS THAT MAKE YOU GO HMMMMMM:
• Questions?
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NSBA Annual MeetingFriday, October 10, 2014
Litigation Essentials: Step-By-Step
Conclusion:Katie Kotlik, Abrahams Kaslow
Homero Vela, Kutak Rock