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43 Cards in this Set
- Front
- Back
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Investigation
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Gathering information, an informal process, ongoing.
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Discovery
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Procedure that the parties to a lawsuit follow in order to uncover the facts that are involved in the case. The system involves an exchange of information among the parties using certain established discovery techniques including depositions, interrogatories, requests for evidence, requests for physical and mental examinations and requests for admission.
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Can you require the opposing side to answer or explain your evidence?
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Yes, and you can request documents that the other side has.
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How has the electronic age changed the way lawyers handle discovery?
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It has made it more challenging for lawyers because there is a new discovery medium involved. It is not just about the documents that are the emails and electronic data, but it is about finding the "metadata" or the data on someones computer that tells how a document was changed, or when it was changed. Social media discovery is often the first place to investigate people.
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What do attorneys argue over most in regards to e-discovery?
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They argue over what types of search queries can be made in a case.
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Can a paralegal interview a potential client without the attorney present?
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Yes. But the paralegal can't decide to take the case.
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At the beginning of a case, what are some of the tasks a paralegal is involved in?
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Interview client
Develop client interview form. Take Notes at interview and write a summary for attorney. Interview witnesses, locate witnesses. Investigating expert witnesses. |
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Is there a limit to discovery?
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Yes. Starts after pleadings.
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In California do we have an online courts record system?
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No. It is not unified. Each court has its own documents online, and they select what they will have.
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Do Federal Courts have an online record system?
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Yes, its acronym is PACER. Anyone can access, if they register to use.
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Forms of Evidence
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Witnesses
Records Documents Exhibits: Diagram, video files Photos Objects *Note: Someone has to authenticate evidence and get it admitted. |
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What are the two types of evidence?
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Direct and Circumstancial
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Direct Evidence
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What someone saw or did.
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Circumstancial Evidence
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Draw an inference.
DNA evidence is circumstantial Most cases are proved by circumstantial evidence. ESI is a type of documentary evidence. Expert Testimony |
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Are there big differences between State and Federal Rules of Evidence?
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No, most states follow Federal.
CA has evidence code |
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Judicial Notice
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This is the process by which the court can determine to allow certain facts of the case, some are inferences, some are evidence.
Example: "Take judicial notice of passport." |
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What is the importance of relevance?
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It is the first rule of evidence. It weighs the probative value vs the prejudicial value.
Ex photos of accident. If you have 300, the judge might allow 5 because they are the only relevant ones. |
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Is all documentary evidence allowed by showing it to the court?
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No. You must authenticate and lay a foundation to support facts. There are those that can be self authenticated, certified copies of public documents.
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Hearsay
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Somcething that someone else said that being used to prove something is true or using it to impeach.
Note: Any out of court statement can be used to impeach what was said on stand. |
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What are exceptions to the Hearsay Rules?
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1. State of Mind. 2. Business Records (business records can be introduced but must be authenticated, by showing they were used in the course of business.
3. Privileges: Right not to answer a question. |
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What are different kinds of privileges?
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Right to keep information private. Right to not answer a question.
Attorney Client Doctor Patient Trade Secrets Constitutional Work Product. |
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In CA do 5th amendment privileges apply to civil cases?
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No, not absolute. OJ was already found guilty in criminal court, so he was compelled to testify in the civil case.
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What is a litigation hold?
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An order issued by an attorney to a client telling that clients employees and associates to stop the routine handling of all ESI, especially as that routine involves the deletion of ESI.
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Metadata
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Computer data about data. Including a tracking record that shows how the data was compiled, who compiled it and what it was used for, where it is stored, etc.
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What is a Paralegals role in Discovery
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Drafting discovery requests
Responding to discovery requests. Client interviews Document review (for relevancy and privilege Reviewing and summarizing disvoery responses Drafting and responding to motions. Integrating discovery into case management software. |
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In CA what are the sources of law that determine discovery methods accepted?
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CA Code
CA Rules of Court Case Law |
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What are the sources of law that determine discovery methods in Federal ?
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Federal Rules of Civil Procedure
Local Rules of Court for Federal Courts Case Law |
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Disclosure
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Process of revealing some information that was previously unknown or difficult to comprehend.
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Rule 26 Fed Rules of Civil Procedure
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Requires parties confer early in the proceeding. Rule provides for mutual disclosure.
3 times the disclosures happen in the course of litigation: Early-Parties are required to exchange information identifying witnesses, documentary evidence, evidence of damages, and copies of insurance. 2. No more than 90 days before trial, parties must exchange information about expert witnesses who will testify at trial. 3. No later than 30 days before trial, parties must exchange information about evidence they intend to use at trial. |
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What is CA approach regarding disclosure?
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If you want something you must ask for it.
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Interrogatories
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Written questions requiring written answers under oath and directed to a party, in which another party seeks information related to the litigation.
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Request for admission
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A request made by a party to another party in that lawsuit to admit to the truthfulness of a fact or the genuineness of a piece of evidence.
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T/F Are Paralegals are sometimes required to locate witnesses who have information concerning a lawsuit.
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True
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Can a written statement from a witness be introduced as evidence in court if the witness is not available at time of trial?
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No. The only way around this is to get a deposition from the witness.
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Can a paralegal record a witnesses statement without the witness's knowledge and permission?
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No, Never. In some jurisdictions this is a crime.
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Written Release
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A document by which a claim or right is relinquished. Often used to get medical records of a client.
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Authorization
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A signed statement empowering someone such as a doctor or employer to give out the informations that might otherwise be treated as confidential.
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Authentication
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The process of establishing that the document is what it purports to be.
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To be admissible, evidence must be...
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Relevant.
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Is all relevant evidence admissible?
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No. Rule 402 specifically provides that relevant evidence can be made inadmissible by
1. Constitution of the U.S. 2. Act of Congress 3. Rules of evidence or by rules prescribed by Supreme Court. |
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Presumption
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A rule of law that allows the trier of fact to draw an inference because one fact has been established by traditional evidence, another fact also exits.
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The legal process by which the parties to a lawsuit search for facts relevant to a particular case.
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Discovery
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Who does the confessor-penitent privilege protect?
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The privilege belongs to the penitent rather than the confessor, however law also protects the confessor who has taken a religious oath not to reveal the content of such counseling sessions.
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