Chat with us, powered by LiveChat Review the transcript from the court proceedings Review the judge’s instructions on Page 22 of the trial document Reach a guilty or non guilty verdict (p - Tutorie

Review the transcript from the court proceedings Review the judge’s instructions on Page 22 of the trial document Reach a guilty or non guilty verdict (p

Review the transcript from the court proceedings

  • Review the judge’s instructions on Page 22 of the trial document
  • Reach a guilty or non guilty verdict (page 23) based on the merits of the arguments and an $ award if you rule guilty
  • Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case

Civil Procedure and Trial Practice

Week 3

Pre-Trial: Pleadings

Pleadings: the written statements of fact and law filed with a court by the parties to a lawsuit.

Complaint

Summons

Demurrer

Answer

Counterclaim

Bill of Particulars

Complaint

Sets forth the relevant allegations of fact that give rise to the legal cause of action(s), plus damages requested.

Essential elements of a complaint:

A short, concise statement of the grounds on which the court’s jurisdiction depends (the court’s authority to hear the case)

A statement of the claim demonstrating that the pleader is entitled to relief

A demand for judgment for the relief to which the plaintiff deems himself or herself entitled

Summons

A legal document issued by a court and served on an individual announcing that a legal proceeding has been commenced.

Provides the date and place where the defendant must appear to respond to and answer the complaint.

In some jurisdictions, a complaint must accompany a summons.

Summons must be properly served

Demurrer

A pleading is filed by a defendant challenging legal sufficiency of a complaint

The pleading represents preliminary objections that are constructed so as to preempt “answering” the plaintiff’s complaint

Answer

The answer to a complaint requires the defendant to respond to each of the allegations of the complaint.

A pleading admits or denies each of the allegations.

If Defendant does not provide response in time, Plaintiff can seek default judgment

Counterclaim

Denial of the plaintiff’s claims by alleging that it was the plaintiff, and not the defendant, who committed a wrongful act and, therefore, it is the defendant who is entitled to damages

Pleadings: Bill of Particulars

Written request by the Defendant for more detailed information from the Plaintiff:

Date and time the alleged malpractice occurred

Specific injuries alleged

Where the alleged malpractice occurred

Negligent acts alleged to have occurred

How the alleged malpractice occurred

Listing of injuries claimed

Listing of any witnesses who alleged malpractice

Listing of damages

Name and address of plaintiff’s employer

Pre-Trial: Discovery (Examination before Trial)

Process of investigating facts of a case before trial

Discovery rules promulgated to prevent trial by ambush

Objectives of discovery

Obtain evidence that might not be obtainable at time of trial

Isolate and narrow issues for trial

Gather evidence that may be admissible at trial

Enable discovering party to gather further evidence

Deposition

A deposition, taken at an examination before trial (EBT), is the testimony of a witness that has been recorded in a written format.

Preparation of witnesses

The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case.

Each witness should be well-prepared before testifying.

Preparation should include a review of all pertinent records.

Attorney-Client Privilege

Confidential communications made by a client and an attorney

Elements necessary to establish privilege

Both parties must agree attorney–client relationship does or will exist.

Client must seek advice from attorney in his or her capacity as a legal advisor.

Communication between attorney and client must be identified to be confidential.

 What is the purpose of attorney-client privilege?

Incident and Investigative Reports

Hospital incident and investigative reports

Not generally protected from discovery

Ordinary course of business vs. work product in anticipation of litigation

Statistical data

Not always privileged

Usually purpose is to influence and improve the quality of health care

Pre-Trial: Motions

A procedural step after the pleadings have been completed, either party may move for a judgment on the pleadings

Motion to Dismiss

Motion for Summary Judgment

Must be NO substantial dispute regarding the presented facts

Motion to Dismiss

Motion to dismiss a case

Defendant alleges plaintiff’s complaint, even if believed, does not set forth a claim or cause of action recognized by law

A motion to dismiss can be made before, during, or after a trial.

Examples: Court lacks jurisdiction or statute of limitations has passed

Motion for Summary Judgment

Either party to a suit may believe that there are no triable issues of fact and only issues of law to be decided.

Either party may make a motion for summary judgment.

Courts are reluctant to look favorably on such motions.

Will be granted if circumstances of a case warrant it

Pre-Trial: Conference

Informal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues, and settle procedural matters relating to the trial

Pre-Trial: Notice of Trial

Once a decision to go forward is reached, the case is placed on a court calendar.

Postponement of the trial may be secured with the consent of both parties and the consent of the court.

Pre-Trial: Memorandum of Law

A memorandum of law (or trial brief) presents to the court the nature of the case, cites case decisions to substantiate arguments, and aids the court regarding points of law.

The Judge

Handles conduct of trial

Decides questions of law

Determines issues of procedure

Decides if evidence admissible

Charges the jury

May direct a verdict

Appellate level: panel of judges will review the trail court’s decision based on the arguments of the parties’ attorneys

The Jury

The jury reviews the facts of a case offered by opposing counsels and makes an impartial decision regarding guilt.

Also determines damages

Jury selection process: Lawyers for both parties question each prospective jury member for impartiality, bias and prejudicial thinking (voir dire)

Waiver of trial by jury

Subpoena

A legal order requiring the appearance of a witness and/or the presentation of documents at a legal proceeding

Subpoena ad testificandum

Subpoena for a witness

Subpoena duces tecum

Subpoena of records

Burden of Proof

The obligation of the plaintiff to persuade the jury regarding the truth of his or her case

Preponderance of credible evidence must be presented for a plaintiff to recover damages.

Credible evidence is evidence that, in the light of reason and common sense, is worthy of belief.

Res Ipsa Loquitur: The Thing Speaks for Itself

Legal doctrine that shifts the burden of proof from the plaintiff to the defendant

Res Ipsa Loquitur: Plaintiff Must Show

Event causing injury: Would not normally have occurred in the absence of negligence

Defendant: Must have exclusive control over instrument causing injury

Plaintiff: Must not have contributed to the event causing injury

Res Ipsa Loquitur: Case Examples

Franklin v. Collins Chapel Correctional Hospital: nursing facility had exclusive control over the bath wherein burns were allegedly suffered + burns would not normally occur absent negligence

Gold v. Ishak: An oxygen mask catching fire during surgery would not have occurred in the ordinary course of things with proper care + the injuring instrument was under the exclusive control of the medical providers + patient could not have contributed to injury

Trial: Opening Statements

Plaintiff’s attorney

Provides, in capsule form, the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client

Defense attorney

Explains the facts as they apply to the case for the defendant

Examination of Witnesses

Officer of Court administers oath

Direct examination

Cross examination

Redirect examination

Recross examination

Evidence – Direct

Direct evidence

Direct evidence is proof offered through direct testimony.

Admissibility of expert testimony

Gross negligence (may not need expert testimony)

Evidence – Demonstrative

Demonstrative evidence

Evidence furnished by things themselves

Considered the most trustworthy and preferred type of evidence

Consists of tangible objects to which testimony refers

Photographs

Imaging studies

Viewing patient injuries

Evidence will be admitted if it is relevant, has probative value, serves the interests of justice

When would it not be admissible?

Evidence – Documentary

Documentary evidence: written information capable of making a truthful statement

Medical records

Manufacturers’ drug inserts

Statutes, rules, and regulations: duty owed to a particular class of persons who are protected by the law

Ex: Nurse patient ratio of no less than one registered nurse to 4 residents in a nursing home

Organizational policies and procedures

Facebook entries and e-mails

Evidence – Hearsay

Hearsay evidence

Based on what another has said or done and is not the result of the personal knowledge of the witness

Statement made outside of court

Because it is hearsay, it is therefore objectionable

Medical books as hearsay evidence

Exceptions: dying declaration, official records, etc

Can be used to show that a statement was made, but not as proof of facts

Presenting Evidence

Expert testimony

Experts necessary

When issues to be resolved are outside the experience of the average juror

Experts not always necessary

When issues are within common knowledge understanding

For example: Broken bones should be X-rayed.

Judicial Notice Rule

Prescribes that well-known facts (e.g., fractures require prompt attention, two X-rays of the same patient may show different results) need not be proven

A court recognizes that a particular fact in a case is so commonly known by the average person that expert testimony is not necessary to establish the fact

Defenses Against Plaintiff’s Allegations

Ignorance is NO defense to the law!

Assumption of risk

Contributory negligence

Comparative negligence

Good Samaritan statutes

Borrowed Servant doctrine

Captain of the Ship doctrine

Statute of limitations

Sovereign immunity

State immunity laws

Intervening cause

Legal Defenses – Assumption of Risk

Knowing that a danger exists but voluntarily accepting the risk through exposure

Elements:

The Plaintiff knows and understands the risk that is being incurred

The choice to accept the risk must be free and voluntary

Ex: consent to surgery

Legal Defenses – Contributory Negligence

When a person does not exercise reasonable care of his/her own safety

Elements:

The Plaintiff’s conduct falls below the required standard of personal care

Causal connection between the Plaintiff’s careless conduct and his/her injury

Ex: failed to follow physician’s instructions, refuses or neglects prescribed treatment, intentionally provides wrong information that leads to injury

Legal Defenses –Comparative Negligence

The degree of negligence of each party is established by the finder of fact

Each party if responsible for the proportional share of any damages awarded

Difference btw comparative and contributory negligence: comparative negligence seeks to compensate the injured party at least for some part of his or her injuries, while contributory negligence is a total bar to any damage award to the plaintiff

Legal Defenses – Good Samaritan Statutes

Relieves healthcare professionals and laypersons from liability in certain emergency situations

Good faith standard

Usually protected from ordinary negligence, not gross negligence

Must render help voluntarily without expectation of pay later

Legal Defenses –Borrowed Servant Doctrine

Applies when an employer lends an employee to another for a particular assignment

The employer is not liable for injury negligently caused by the servant while in the special service of another

If the other had exclusive control over the employee

Legal Defenses –Statute of Limitations

Legislatively imposed time constraint that restrict the period after the occurrence of an injury during which a legal action must be commenced

Ex:

Time of the wrongful act

Date when injury is discovered

Date when the contract ended

Time when fraud is discovered

When patient becomes aware of malpractice

Legal Defenses – Immunity

Sovereign immunity: federal and state governments have historically been immune from liability for harm suffered from the tortious conduct of government employees

State immunity laws: state laws specify when a government entity may be liable for tortious conduct

Legal Defenses – Intervening Cause

An unforeseeable force coming into being after a defendant’s negligent act, which cancels the defendant’s liability by breaking the chain of causation from the defendant’s act to the plaintiff’s injury

Such an act destroys the casual connection between the negligent act of the defendant and the injury

Damages are not recoverable because the original act is not the probable cause of the plaintiff’s injury

Unforeseeable Causes

Malicious, intervening acts, if unforeseeable

Intervention by one with a higher ethical duty to the victim (e.g., parent or guardian)

Extraordinarily negligent intervening conduct

Acts of God (e.g., floods, hurricanes, tornados, earthquakes)

Case: Lightning Strikes

Mary underwent surgery at General Hospital in Anytown, U.S.A. The power grid in the Northeast shut down and the hospital’s emergency generator came online. Lightning struck the generator and the operating room lights went out. The surgeon cut an artery while completing Mary’s surgery under difficult circumstances. Mary suffered serious injuries. Mary sues the surgeon.

Will Mary succeed in her lawsuit?

Case: Lightning Strikes

No!

There was a superseding intervening cause

It was unforeseeable that the power grid in the Northeast would shut down and lightning would strike the generator

Foreseeable Intervening Causes

Those subsequent forces that

Objectively speaking, one should reasonably anticipate, or

Those the defendant should reasonably anticipate under the circumstances

Injury from Stretcher Transport

Mindy, while transporting Jen to a minor treatment room, negligently pushes Jen’s stretcher through corridors, injuring her foot. While being operated on for foot injuries, Jen miscarriages.

Are the hospital and Mindy liable for Jen’s miscarriage?

Injury from Stretcher Transport

Yes!

Mindy, the negligent defendant, is liable for intervening acts as long as they are foreseeable

Exercise 2 –Mock Trial

Download Week 3 Exercise 2 from Blackboard- Mock Trial

Review the transcript from the court proceedings

Review the judge’s instructions on Page 22 of the trial document

Reach a guilty or non guilty verdict (page 23) based on the merits of the arguments

Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case

Reply to one post that reaches the opposing verdict of your verdict and analyze where you differed in your opinions

End of Trial

Closing statements: summarize what they have proven

Judge’s charge to jury

Describes the responsibility of the jury

The law applicable to the case

Advise the jury of the available alternatives

Jury charges must be clear

Jury instructions must not be prejudicial

Jury deliberation and determination

50

Awarding Damages

Nominal: Are a token in recognition that a wrong has been committed. In such cases, the amount of compensation is insignificant

Compensatory: Intended as reparation for detriment or injury sustained

Hedonic: Awarded to compensate plaintiff for loss of enjoyment of life

Punitive: Additional monetary awards when an injury is caused by gross carelessness or disregard for others’ safety

51

Joint and Several Liability

All joint or concurrent tortfeasors are independently at fault for their own wrongful act

A hospital knew of should have known of a surgeon’s incompetence because of the surgeon's prior negligence (no effective monitoring system)

Permits defendant to bring suit against all persons sharing responsibility for injuries

Permits plaintiff to collect from any “one” or “all” of defendants

Several liability: each party to a lawsuit is liable only to the degree he/she contributed to the injury

52

Appeals

Reviews a case on the basis of the trial records, written briefs, and concise oral arguments (if requested)

Grounds for Appeal:

Verdict excessive

Evidence rejected that should have been accepted

Inadmissible evidence permitted

Admissible evidence wrongfully excluded

Verdict contrary to weight of evidence

Court improperly charged the jury

Verdict is result of bias, prejudice, passion

53

Execution of Judgments

Once the amount of damages has been established and all the appeals have been heard, the defendant must comply with the judgment

This follows after all appeals have been exhausted

54

Exercise 1: Negligence Defenses

Review the case study in our text on pages 139-140 Chapter 8 It’s Your Gavel

Reach your own verdict based on the information provided.

Provide detailed rationale for your verdict, citing the Chapter 8 learnings and the details from the case

If you agree with the jury’s verdict, explain why. If you disagree, explain why.

Reply to one post to complete the exercise.

,

1Donald Brashear vs Marty McSorley Civll Mock Trial

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN

DONALD BRASHEAR

PLAINTIFF

AND

MARTY MCSORLEY

DEFENDANT

(Issue: Is Marty McSorley liable for personally injuring Donald Brashear?)

CLERK: Order in the court, the Honourable Mister/Madam Justice _____________ presiding.

[Everyone stands as the judge enters the courtroom.]

JUDGE: You may be seated.

[Everyone sits, except the clerk.]

CLERK: The case of Brashear vs. McSorley, my Lord/Lady.

[Clerk sits.]

JUDGE: Thank you. Are all parties present?

[Plaintiff’s counsel stands.]

PLAINTIFF’S COUNSEL: Yes, my Lord/Lady. I am _________________ and these are my co-counsel

_________________ and _________________. We are acting on behalf of the plaintiff Donald Brashear in this matter.

[Please note that this statement can be adjusted depending on the number of lawyers for each side.]

[Plaintiff’s counsel sits; defendant’s counsel stands.]

DEFENDANT’S COUNSEL: Yes, my Lord/Lady. I am _________________ and these are my co-counsel

_________________ and _________________. We are acting on behalf of the defendant, Marty McSorley, in this matter.

[Again, statement can be adjusted depending on number of lawyers.]

CIVIL MOCK TRIAL

Wan-ting Lin

Wan-ting Lin

2 Donald Brashear vs Marty McSorley Civll Mock Trial

[Defendant’s counsel sits.]

JUDGE: Thank you. Good day ladies and gentlemen of the jury. I begin with some general comments on our roles in this civil trial. Throughout these proceedings, you will act as judges of the facts and I will act as the judge of the law. Although I may comment on the evidence, you are the only judges of evidence. However, when I tell you what the law is, my view of the law must be accepted.

There is a basic principle that is fundamental to your role as jurors. In this case, there is a requirement of proof on a balance of probabilities which means evidence that has more weight and is more probable must be accepted.

There is a basic rule requiring that you decide this case on the balance of probabilities. That means if you take all the evidence and one party is more correct or right than the other then that party would be successful. If the plaintiff’s case is more correct, then the defendant will be found to be liable and at fault. If the defendant is more correct, then the case would be dismissed. There is also a rule regarding personal injury. The plaintiff has to prove that the defendant is responsible for the injuries sustained before a decision can be reached. I now ask the plaintiff’s counsel to present his case.

[Plaintiff’s counsel stands.]

PLAINTIFF’S COUNSEL: Ladies and gentlemen of the jury, I will be representing Mr. Donald Brashear, the

plaintiff in this case.

We intend to prove that the defendant in this case, Marty McSorley, was negligent, as he was reckless of the consequences of his ruthless assault on my client on February 21, 2000, in the Canucks vs. Bruins game at GM Place.

My client was seriously injured, and to prove this negligence we intend to call Mr. Brashear; the referee that night, Mr. Brad Watson, who witnessed the assault; and Dr. Rui Avelar, who will testify about Mr. Brashear’s serious injuries. We now wish to call our first witness, Donald Brashear.

[Donald Brashear takes the stand and remains standing while he is taking the oath.]

CLERK: Do you swear that the evidence you shall give shall be the truth, the whole truth and nothing but the truth so help you God?

BRASHEAR: I do.

CLERK: Please state your full name and spell your last name for the record.

BRASHEAR: My name is Donald Brashear, B-R-A-S-H-E-A-R.

JUDGE: Please be seated. Go ahead counsel.

[Donald Brashear sits.]

3Donald Brashear vs Marty McSorley Civll Mock Trial

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