Civil Procedure III - All Attachments

  • MOTION FOR CONTINUANCE OF TRIAL

    • An affirmative showing of “good cause” is required for a continuance

      of trial as trial continuances are disfavored.

    • The continuance motion must be made “as soon as reasonably practical once the necessity for the continuance is discovered”.

    • The following circumstances may indicate good cause warranting a

      continuance:

      • Unavailability of essential lay or expert witnesses because of

        death, illness or other excusable circumstances.

      • Unavailability of a Party because of death, illness or other

        excusable circumstances.

      • Unavailability of trial counsel because of death, illness or other

        excusable circumstances.

      • Substitution of trial counsel with showing such is required in

        the interest of justice.

      • Addition of a party without adequate time to prepare for trial.

      • A party’s inability to obtain essential witness, documents or

        material evidence despite diligent efforts.

      • A significant unanticipated change in the status of the case.

      • Most common: Stipulation to Continue by all Party’s attorneys

  • DIRECT VS. CIRCUMSTANTIAL EVIDENCE

    • DIRECT EVIDENCE proves a fact without an inference or

      presumption. “It directly proves a fact that, if true, conclusively

      establishes that fact.” (Ev. Code 410)

    • CIRCUMSTANTIAL EVIDENCE, also known as indirect evidence,

      constitutes evidence that requires a person to draw an inference

      from it. “An inference is a deduction of fact that may logically and

      reasonably be drawn from another fact or group of facts found or

      otherwise established in the action.” (Ev. Code 600)

    • Note: Most people dismiss circumstantial evidence as weaker than

      direct evidence but this is wrong and a mistake as:

      • THE LAW PROVIDES THAT BOTH DIRECT AND INDIRECT EVIDENCE ARE ENTITLED TO THE SAME WEIGHT. NEITHER IS ENTITLED TO PREFERENCE OVER THE OTHER. (C.A.C.I. 202)

  • HABIT AND CUSTOM

    • Evidence of a person’s habit or custom is admissible to prove

      conduct on a specified occasion in conformity with that habit.

      (Ev. Code 1105)

    • HABIT refers to a person’s consistent and repeated conduct in

      response to a recurring situation.

    • CUSTOM is a routine practice on the part of a group or organization

      that is equivalent to the habit of an individual.

      • (It is important to understand that habit or custom do NOT INCLUDE a person’s character.)

  • CHARACTER EVIDENCE

    • “Character Evidence” refers to evidence of a person’s propensity or

      tendency to act in a certain way under certain circumstances.

    • GENERAL RULE:

      • Character evidence is generally not admissible to prove

        conduct on a specific occasion. (Ev, Code 1101 (a))

    • Examples:

      • Plaintiff cannot prove a defendant liable for a car accident because the defendant is a “careless driver” or “accident prone”.

      • Plaintiff cannot prove a doctor committed malpractice because the doctor was terminated from several jobs and residency programs because of inadequate performance.

  • RELEVANCE (EVIDENCE)

    • Relevance in Discovery was “relevant to the subject matter” or

      seeks material that is “calculated to lead to the discovery of

      admissible evidence”. (broad concept)

    • In trial relevance takes on a narrower meaning:

    • DEFINITION OF RELEVANCE in trial:

      • “Relevance means the evidence has the tendency in reason to prove or disprove any disputed fact or consequence to the determination of the action, including the credibility of a witness or hearsay declarant.” (Ev. Code 210)

    • Two elements are involved:

      • The evidence must relate to some matter properly at issue in the case, and

      • The evidence must have probative value, meaning some logical tendency to prove the matter at issue

  • FOUNDATION

    • Assuming one can establish that evidence is relevant. The next

      question to ask is whether one can lay a proper foundation for the

      item that will be offered into evidence.

    • WITNESS TESTIMONY:

      • COMPETENCE: The witness must be competent to testify

      • PERSONAL KNOWLEDGE: Except for expert testimony, a

        witness must have personal knowledge.

    • WRITINGS:

      • Just about any form of communication qualifies as a writing.

        Before it can be admitted into evidence, a writing must be

        shown to be AUTHENTIC.

      • Authentication can be established by:

        • Stipulation among counsel

        • Admission in the pleading

        • Answers to Requests for Admissions

        • Judicial Notice

        • Self-authenticating records: notarized deeds

  • DISCOVERY DOCUMENTS

    • ADMISSIBILITY

    • DEPOSITIONS:

      • Deposition of a Party: Adverse party may use a party’s deposition for any purpose, including impeachment and as substantive evidence against the party whether or not the party is present.

      • Can simply pick up the deposition and read it.

      • Nonparty Deposition: Can be used as long as the witness is on the stand. Once the witness has left the stand, the witness cannot be impeached.

      • Unavailable witness: Deposition can be used if meets “unavailable” to testify requirements:

        • Deponent is dead

        • Deponent is unable to attend or testify because of an existing physical or mental illness or infirmity

        • Deponent is beyond the reach of a subpoena (outside of

          California)

        • Deponent is incapable of being served despite reasonable diligence

        • Deponent is exempted or precluded on grounds of privilege

        • Deponent resides more than 150 miles from place of trial

      • CHARACTER EVIDENCE ADMISSIBILITY

        • WHEN CHARACTER ITSELF IS AT ISSUE

          • Example: Wrongful discharge case where employee’s ability to work well with others was at issue. Evidence that he lost his temper often (specific acts of misconduct) was admissible to show he was unfit for managerial position.

        • SPECIFIC CONDUCT ADMISSIBLE TO PROVE MOTIVE, ETC

          • Example: That Person committed a crime: Specific conduct including: intent, preparation, plan, modus operandi, knowledge and motived

        • WHEN CREDIBILITY IS AT ISSUE:

          • OPINION OR REPUTATION EVIDENCE IS ADMISSIBLE

        • PRIOR FELONY CONVICTIONS

          • IMPORTANT: A PRIOR FELONY CONVICTION IS ALWAYS ADMISSIBLE REGARDLESS OF THE NATURE OF THE OFFENSE TO ATTACK THE CREDIBILITY OF A PARTY OR WITNESS

  • EXCLUSION OF EVIDENCE

    • Motions in Limine

    • EVIDENCE CODE 352:

      • “The Court in its discretion may exclude evidence

        if its probative value is substantially outweighed by

        the probability that its admission will (a) necessitate

        undue consumption of time or (b) create substantial

        danger of undue prejudice, of confusing the issues,

        or of misleading the jury.”

  • DEFINITION OF HEARSAY

    • “Hearsay is an out-of-court statement offered for its truth”

      • a) There must be a statement – oral or written

      • b) Statement must have been made out-of-court by an out-of-court Declarant other than witness testifying at the current trial

      • c) Statement must be offered to prove the truth of the matter asserted

    • “Hearsay is an out-of-court statement offered for the truth of the matter asserted.”

      • Hearsay is a statement that the declarant does not make while testifying at trial or hearing (out-of-court)

    • Offered to prove the truth of the matter stated

      • Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being off to prove the truth of the matter asserted.

      • Example: John said that Bill told him that he saw Jill run the red light. Since John is testifying and offering this statement by Bill for its truth it is hearsay. The proper person to testify to this fact would be Bill.

    • Many exceptions to the hearsay rule exist to allow certain statements to be admitted as evidence. Some exceptions apply only when the declarant is not available to testify. However, the first set of exceptions below operate regardless of whether the declarant is available.

      • Present sense impressions are statements that explain an event or condition. These statements are made while the declarant immediately perceives the event or condition. Dying Declarations

      • An excited utterance relating to a startling event or condition, made while the declarant was under the stress of the excitement. Spontaneous Statements or Excited Utterances

      • A statement made of then-existing mental, emotional or physical condition expresses the declarant’s present state of mind. The statement may express motive, intent, plan, emotion, sensory perception or physical condition. Statements of Physical or mental Condition

      • Admissions of a Party

      • Declarations against Interest

      • Prior Statements of a witness---Former Testimony

      • Business records, Official records and Judgments

  • ADMISSIBILITY OF HEARSAY

    • “Hearsay is not admissible unless it falls within one of the many established exceptions” (Evidence Code 1200(b))

    • UNAVAILABILITY OF DECLARANT: Many of the Hearsay exceptions apply only if the declarant is “unavailable” as a witness:

      • Former testimony

      • Declaration against Interest

      • Dying Declarations

      • Declarations re family history

  • HEARSAY EXCEPTIONS

    • Admissions of a Party

    • Declarations Against Interest

    • Prior Statements of Witnesses

    • Former Testimony

    • Spontaneous Statements

    • Dying Declarations

    • Statements of Mental or Physical State

    • Business Records

    • Official Records

    • Judgments

  • DECLARATIONS AGAINST INTEREST

    • Unlike admissions, which involve a PARTY, this exception pertains

      to a NONPARTY. Out-of-court statements by nonparties are

      admissible as substantive proof of the matter asserted if:

      • The Declarant is presently UNAVAILABLE to testify as a witness

      • The Declarant has PERSONAL KNOWLEDGE of the subject

        matter

      • The statement was sufficiently AGAINST INTEREST of

        Declarant when made

      • The statement was sufficiently reliable to warrant admissions despite its hearsay character

  • DYING DECLARATIONS

    • A dying person’s statement regarding the cause and circumstances of his death is admissible for its truth if the statement was made:

      • On the Declarant’s personal knowledge;

      • Under a sense of impending death, and:

      • The declaration must relate to the cause and circumstances of Declarant’s death.

  • PRIVILEGES

    • A “privilege” permits an otherwise “competent” witness to refuse to testify and/or prevent another from testifying.

    • Asserting and Waiving Privileges:

      • Asserting: A claim of privilege can be asserted simply by objecting and stating the specific privilege

      • Waiving a privilege: A statutory privilege may be waived if the holder of the privilege has disclosed a “significant” part of the communication to a third party or consented to such disclosure.

  • THE EXCLUSIONARY RULE (EVIDENCE CODE SECTION 352)

    • The court has discretion to exclude evidence that, even if relevant,
      nevertheless creates severe danger if the jury hears it.

    • The court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that the admission will

      • necessitate undue consumption of time or

      • create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury” (Ev. Code 352)

  • NON-HEARSAY EXAMPLES

    • Statements offered for reasons OTHER THAN for truth of statement

      • The hearsay rule plays no role when the issue is whether certain things were said or done (as opposed to whether the words were true or false). In these situations, the out-of-court statement or conduct has independent legal significance. It comes into evidence as non hearsay to prove the words were spoken or that the act was done.

    • Examples:

      • Formation of contract (offer, acceptance, etc.)

      • Defamation

      • Misrepresentation

      • Discriminatory practices

      • Statements offered to show effect on someone else

      • Statements offered to prove someone’s identity

      • Statements offered as circumstantial evidence of state of mind

      • Words imparting information that is acted upon

  • Definition of a Trial Jury

    • A trial jury is “a body of persons selected from the citizens of the area served by the court and sworn to try and determine by verdict a question of fact”

    • In civil causes the jury “shall consist of 12 persons or a lesser number agreed on by the parties in open court” (Calif. Constitution Art 1 Sec 16)

  • FUNCTION OF JURY VS TRIER OF FACT

    • The right to a jury trial is the right to have a jury hear and decide issues of fact, not issues of law. A judge decides issues of law.

    • Material Allegations by Jury

    • Procedural Questions by Judge

      • Admissibility of Evidence

    • Issues of Law by Judge alone

      • Examples

        • In a contract dispute, the judge decides what the contract language legally means before the jury considers if it was breached.

  • LAW VS. EQUITY

    • The jury trial is a matter of right in a civil action at law, but NOT in equity.

    • Civil Actions:

      • Personal Injury

      • Contract cases

      • Products Liability

      • Fraud

      • Intentional Torts

    • Equity Actions:

      • Injunctive relief

      • Specific Performance

      • Constructive trust

      • Reformation of contract

      • Recission of a contract

      • Quiet title

      • Foreclosure

  • WAIVER OF JURY TRIAL

    • A jury trial may be waived in any of the following ways:

      • Failing to appear at trial

      • Written consent filed by the clerk

      • Oral consent in open court

      • Failing to make timely demand for jury trial

      • Failure to deposit advance jury fees

      • Failure to deposit jury fees on the second and each succeeding day of trial

  • FINAL STATUS CONFERENCE

    • Usually set 10 days to one month before trial.

    • Trial judge to hold FSC to determine:

      • Scope of voir dire question

      • Statement of the Case to be read to the Jury

      • Number of Alternate Jurors needed

      • Stipulations regarding excuse of jurors with time constraints

      • Number of peremptory challenges

    • Purpose of Final Status Conference:

      • Clarify and narrow the issues to be tried

      • Encourage stipulations that will streamline trial

      • Encourage stipulations re foundation for admitting documents

      • Rule on various pre-trial motions, objections and In limine

      • Set ground rules re: voir dire, evidence marking & “housekeeping” matters

    • Required documents to be filed at Final Status Conference:

      • Pre-numbered Exhibit List

      • Proposed Jury Instructions

      • Witness List

      • Proposed Statement of the Case

      • Motions in Limine

      • Proposed Verdicts

      • List of Stipulations

  • MOTION IN LIMINE

    • An in limine motion is a motion, made “at the threshold of the trial”, to exclude evidence deemed inadmissible or prejudicial by the moving party.

      • These motions can be used to exclude “any kind of evidence which can be objected to at trial”.

      • Motions in limine can be oral and in writing.

      • Usually filed and heard at the Final Status Conference, oral motions are often offered during trial.

  • EXAMPLES OF MOTIONS IN LIMINE

    • PLAINTIFF’S MOTIONS:

      • To exclude collateral source payments

      • To exclude the tax consequences of a personal injury law suit

      • To exclude unfavorable facts about Plaintiff (traffic tickets, misdemeanor convictions, immigrant status, dishonorable discharge from Armed Forces, contingency fee basis for Plaintiff’s case)

      • To exclude facts likely to curry sympathy for Defendant (Defendant’s poor health, poor financial condition)

    • DEFENDANT’S MOTIONS:

      • To exclude prior accidents used to prove liability

      • To exclude post-accident repair to prove liability

      • Defendant’s net worth in punitive damages

    • OTHER MOTION:

      • Scientific test shown to be unreliable

      • Witness’ criminal record

      • Failure to list witness as an Expert

      • Failure to produce discoverable reports

      • Witnesses not on the Witness List

      • Evidence lacks foundation

  • PROCEDURES REGARDING MOTIONS IN LIMINE

    • Although there is no express statutory authority for motions in limine, they are well recognized in practice and in the case law.

    • Although usually made before trial, when unanticipated evidentiary issues surface during trial, they are timely.

    • Motions in limine made during trial must be made outside of the jury’s presence.

    • The trial judge has the discretion to set the “timing and place of filing and service” of a motion in limine.

    • Los Angeles Superior Court Rule [3.25(f)(2)]:

      • Motions in Limine must be filed 21 days before the Final Status

      • Conference (plus 5 days mailing)

  • OPENING STATEMENT

    • PREPARATION: Before the attorney puts together the opening statement.

      • Consider your audience

      • Get the facts and get them right

      • Establish a theme for the case

      • Identify the Players

      • Prepare an outline

      • Types of Introductions

      • Other Topics

      • Be candid about the problems and weaknesses in your case

  • MOTIONS FOR MISTRIAL

    • Jury Deadlocked

    • Attorney Misconduct

      • Improper voir dire questions

      • Improper opening statements

      • Improper direct or cross-examination

      • Willfully concealing evidence

      • Improper communication with Jurors

      • Violating In Limine Order

    • Judicial Misconduct

    • Juror Misconduct

      • Examples: When a juror violates court rules, such as discussing the case outside of deliberation or researching on their own.

  • MOTION FOR NONSUIT

    • “Only after, and not before, the Plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the Defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit”.

    • Function

      • Allows Defendant to challenge the sufficiency of Plaintiff’s evidence

        • But challenges whether these facts are sufficient as a matter of law to prove a prima facie case.

      • May be granted on some or all of Plaintiff’s claims

    • HEARD OUTIDE OF JURY’S PRESENCE

  • MOTION FOR DIRECTED VERDICT

    • Resembles a nonsuit Motion

    • Brought by EITHER Plaintiff or Defendant

    • At conclusion of all evidence when all parties have rested

  • JURY INSTRUCTIONS

    • Jury instructions constitute the blueprint for the legal theories that are advanced in a case. They provide jurors with the law that applies to the claims and defenses that exist in a particular case.

    • Each party’s attorney has the duty to propose reasonable and proper jury instructions on all the legal theories that apply. (See CCP Sec 607a)

  • CACI

    • While jury instructions can be drawn from several sources, the most important one is the “Judicial Council of California Civil Jury Instructions” known as CACI.

    • TIME REQUIREMENT:

      • Jury Instructions must be delivered to the trial judge before the first witness is sworn.

  • FORMAT OF JURY INSTRUCTIONS per (California Rules of Court Sec. 2.100-119)

    • “Each set of proposed jury instructions must have a cover page containing the Case caption and name of the party proposing the instructions.”

    • “Each set must include and index listing all the proposed instructions with reference numbers” (example: CACI No. 3800)

    • The index must include a checklist for the judge which checklist must include the following options:

      • Given as proposed

      • Given as modified

      • Refused

      • Withdrawn

    • Each instruction must be on a separate page

  • COSTS

    • GENERAL CONSIDERATIONS

      • The right to recover costs is determined solely by statute. Generally, the “prevailing party” is entitled to costs “as a matter of right”. (C.C.P. Sec 1032 (b))

    • ALLOWABLE COSTS:

      • Filing fee, Motion fees, jury fees, “necessary” deposition transcripts, service of process, “ordinary witness fees, attorney fees authorized by contract, court-ordered expert fees, court reporter fees, models, blowups & exhibits

    • COSTS NOT ALLOWABLE:

      • Expert fees

      • Treating physicians reasonable and customary hourly fees

      • Investigation expenses

      • Postage, telephone and photocopying costs

      • Court proceeding transcripts

  • CLOSING ARGUMENTS

    • This is when the lawyers may “argue” their case to the jury.

    • The time permitted for closing argument to the jury in a civil case is “wholly within the discretion of the trial judge” (L.A. Superior Court Rule 3.181)

    • Plaintiff presents his closing argument first followed by the defense’s closing. Then Plaintiff has opportunity for rebuttal but cannot in rebuttal exceed the scope of defendant’s closing arguments or bring in matters that should have been argued during his initial closing argument.

    • IMPROPER ARGUMENTS:

      • Matters excluded from evidence

      • Matters not in evidence

      • Misstate evidence or mislead jury

      • Misstate the law

      • Comments on witnesses who have claimed privilege

      • Claims of evidence “suppression”

      • Counsel’s personal knowledge of the facts

  • STANDARDS GOVERNING NONSUITS & DIRECTED VERDICTS

    • NONSUIT: A nonsuit is proper where Plaintiff’s proof raises nothing more than speculation, suspicion or conjecture.

      • Examples: Expert testimony established a “possibility”, but not a “probability” of a causal connection.

      • In a products liability case, no foundation for expert’s conclusion that a defective tire design had caused the accident

      • Paramedic trial case (class lecture)

    • The trial judge may not weigh the evidence in determining whether Plaintiff has proved a prima facie case, nor does the judge weigh the credibility of the witnesses.

    • DIRECTED VERDICT:

      • In favor of Plaintiff (vs Defendant): Plaintiff’s cause of action supported and no substantial support to defense allegations.

      • In favor of Defendant (vs Plaintiff’s case): Proper only when, disregarding conflicting evidence and indulging every legitimate inference that may be drawn from the evidence in Plaintiff’s favor, the trial judge finds no evidence of sufficient substantiality to support a verdict in favor of the Plaintiff.

      • (Note: the test for granting a directed verdict is the same as for a nonsuit)

  • THE GOLDEN RULE

    • “Do unto others as you would have them do unto you”

    • It is improper and grounds for a mistrial to employ the “Golden Rule” argument by asking the jury to “place themselves in Plaintiff’s shoes and award the amount they would want to undergo the equivalent disability, pain and suffering.

    • Example: Asking the jury in closing: “How much would each of you want if you, like Plaintiff, was paralyzed for the rest of your life?”

    • Award of damages are based on the evidence. There is no objective standard to fix damages for non-economic damages (pain & suffering, etc.). Jurors are to use their judgment to decide a reasonable amount based on the evidence and their common sense.