2. Chapter 6
Civil Procedure & Trial Practice
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3. Pleadings - I
• Summons & Complaint
– Sets forth relevant allegations of fact that give rise
to one or more legal causes of action
– includes damages requested
– Case: Improper service of a summons
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4. Pleadings - II
• Demurrer
– A pleading filed by a defendant challenging legal
sufficiency of a complaint.
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5. Pleadings - III
• Answer
– A pleading which admits or denies specific
allegations set forth in a complaint.
• Counterclaim
– A request for a written itemization of the claims
which a defendant can demand from the plaintiff to
determine details of a claim.
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6. Pleadings – IV
Bill of Particulars
Request for a written itemization of claims a defendant
can demand from plaintiff to determine details of the
claim, e.g.
• date & time of day negligence
• where the alleged malpractice occurred
• the act negligent alleged to have occurred
• how the alleged the negligence occurred
• listing of injuries claimed
• listing of any witnesses alleged malpractice
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7. Discovery & EBTs
• Process of investigating facts of a case before
trial.
• Discovery rules promulgated to prevent trial
by ambush.
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8. Objectives of Discovery
• Obtain evidence that might not be obtainable at time
of trial.
• Isolate & narrow issues for trial;
• Gather knowledge of the existence of additional
evidence that may be admissible at trial.
• Obtain leads to enable discovering party to gather
further evidence.
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9. Examination Before Trial
An EBT may reveal sufficient facts discouraging
plaintiff from continuing the case or it may
encourage one or both parties to settle out of
court.
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10. Deposition
A deposition, taken at an EBT, is the testimony
of a witness that has been recorded in a written
format.
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11. Attorney-Client Privilege
Confidential communications made by a client &
an attorney
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12. Elements Needed to Establish
Attorney-Client Privilege
• Both parties must agree that the attorney-client
relationship does or will exist.
• Client must seek advice from an attorney in his or her
capacity as a legal advisor.
• Communication between attorney & client must be
identified to be confidential.
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13. Incident & Investigative Reports - I
• Incident Reports
– not generally protected from discovery
• Statistical Data – Not Always Privileged
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14. Incident & Investigative Reports -
II
• Cases
– Incident Reports Not Always Privileged
– Statistical Data NotAlways Privileged
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15. Preparation of Witnesses – I
• Review records
• Do not be antagonistic
• Be organized in:
– thinking
– recollection of facts
• Answer “only” questions asked
• Explain simply, succinctly
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16. Preparation of Witnesses – II
• Do not over-dramatize
• Do not become over-powered by cross-
examiner
• Be polite, sincere, & courteous
• Dress appropriately
• Be well groomed
• Listen for objections
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17. Preparation of Witnesses – III
• Review your EBT before trial
• Be honest with examiner
• Do not show displeasure
• Ask for questions to be repeated for
clarification
• Not sure of answer – indicate you are not sure
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18. Pretrail 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.
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19. Pre-Trial Motions - I
• Motion to Dismiss a case
– Defendant alleges plaintiff„s complaint does
not set forth a claim or cause of action
recognized by law.
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20. Pre-Trial Motions - II
• Motion for Summary Judgment
– Either party to a suit may believe that there are no
triable issues of fact & only issues of law to be
decided.
– In such event, either party may make a motion for
summary judgment.
• Cases
– Summary Judgment Granted
– Summary Judgment Denied
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21. Notice of Trial
Once a decision to go forward is reached, the
case is placed on a court calendar.
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22. Notice of Trial
• Once a decision to go forward is reached, the
case is placed on the court calendar.
• Postponement of the trial may be se- cured
with the consent of both parties and the
consent of the court.
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23. 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.
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24. Judge
• Handles conduct of trial
• Decides questions of law
• Determines issues of procedure
• Decides if evidence admissible
• Charges the jury
• May direct a verdict
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25. The Judge
• Decides questions of Law
• Ensures that the trial is conducted in a fair
manner
• Decides whether evidence is admissible
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26. The Jury
• Selected from jury list
• Determines the facts
• Determines issues of fact
• Determines damages, if any
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27. Subpoena - I
A legal order requiring the appearance of a
witness and/or the presentation of documents
at a legal proceeding.
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28. Types of Subpoenas
• Subpoena ad testificandum
– Subpoena for a witness
• Subpoena duces tecm
– Subpoena of records
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29. Burden of Proof
Obligation of the plaintiff to persuade the jury
regarding the truth of his or her case.
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30. Res Ipsa Loquitur
“the thing speaks for itself”
Legal doctrine that shifts the burden of proof
from the plaintiff to the defendant.
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31. Res Ipsa Loquitur
Proof Required
1. Event causing injury – would not normally have
occurred in the absence of negligence
2. Defendant – must have exclusive control over
instrument causing injury
3. Plaintiff – must not have contributed to the event
causing injury.
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32. Wrong Medication – I
Stanley refills his drug prescription at Discount Drugs.
Prior to taking his nightly dosage he noticed the pills
appeared larger than normal. He phoned Discount
Drugs & explained his concern. The
Pharmacist, stating he was busy, assured Stanley
generic drugs sometimes are larger & the medication
was correct. Stanley took the drug & never woke up.
The dosage given was five times that prescribed. The
pharmacist filled Stanley‟s prescription from the
wrong container.
Is the pharmacy liable for Stanley’s death?
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33. Yes
The plaintiff – Stanley - need not prove
conclusively that the defendant -pharmacist‟s -
negligence resulted in injury, only that all
reasonably probable causes of the accident can
be traced to the defendant.
See res ipsa loquitur above.
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34. 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.
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35. Examination of Witnesses
• Officer of Court Administers Oath
• Direct Examination
• Cross Examination
• Redirect Examination
• Recross Examination
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36. Evidence - I
• Direct Evidence
– Statutory Evidence
• Violation of a statute may constitute direct
evidence of negligence, or it simply may
voice a duty that is owed to a particular class
of persons who are protected by the statute
or regulation.
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37. Evidence - II
– Policies & Procedures
• Day-to-day organization operations.
• If a violation of a p&p causes injury to one
whom the policy or procedure is designed to
protect, such violation can give rise to evidence
for negligent conduct.
• Demonstrative Evidence
• Documentary Evidence
• Judicial Notice
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38. Evidence - III
• Hearsay Evidence
– Case: Hearsay & Lost Chance of Survival
– Medical books as Hearsay Evidence
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39. Presenting Evidence - IV
• Expert Testimony
– Experts necessary
• When issues to be resolved are outside the
experience of the average juror.
– Experts not always necessary
• Issues are within common knowledge
understanding
–E.g., broken bones should be x-rayed
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40. Cases: Expert Testimony - I
• Amputation of the Wrong Limb
• Resident Suffers Indignities
• Pharmacist Not Always a Qualified Witness
• Gross Negligence
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41. Cases: Expert Testimony - II
• Surgical Sponge Left in Patient
• Falls from Defective Chairs
• Negligent Insertion of an IV
• Admissibility of Physician Testimony
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42. Negligence Defenses - I
• Ignorance of Fact/Unintentional Wrongs
• Assumption of a Risk
• Contributory Negligence
• Good Samaritan Statutes
– Pre-existing Duty to Care
– Emergency Assiance
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43. Legal Defenses - II
• Borrowed Servant Doctrine
– Hospital Responsible for Resident‟s
Negligence
– Physician Not Responsible for Resident‟s
Negligence
• Captain of the Ship Doctrine
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44. Legal Defenses - III
• Comparative Negligence
• Statute of Limitations
• Sovereign Immunity
– Federal Tort Claims Act
– Failure to Refer
– Nurse‟s Negligence: Immunity Denied
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45. Legal Defenses - IV
• Intervening Cause
– A force which takes effect after the defendant‟s
negligence, which contributes to that negligence in
producing the plaintiff‟s injury.
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46. Superseding Intervening Cause
• An unforeseeable force coming into being after
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 & the
injury.
• Damages are not recoverable because the original
act is not the probable cause of plaintiff‟s injury.
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47. 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).
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48. Case: Lighting Strikes
Mary underwent surgery at General Hospital in
Anytown, U.S.A. The power grid in the northeast
shut-down & the hospital‟s emergency generator
came on line. Lighting struck the generator & the
OR 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?
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49. NO!
• There was a Superseding Intervening Cause.
• It was unforeseeable that the power grid in the
NE would shut down & lighting would strike
the generator.
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50. Foreseeable Intervening Causes
• Those subsequent forces which:
– objectively speaking, one should reasonably
anticipate, or
– those the defendant should reasonably anticipate
under the circumstances.
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51. Fall from ED Stretcher
Mindy, while transporting Jen to a minor
treatment room, negligently pushes Jen‟s
stretcher thru corridors injuring her foot. While
being operating on for foot injuries, Mindy
miscarriages.
Is the hospital liable for Jen’s miscarriage?
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52. Yes!
Foreseeable Intervening Cause
Mindy, the negligent defendant, is liable for
intervening acts as long as they are foreseeable.
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53. Bottle of Pills
Mary was visiting her son Tom in the hospital. She
noticed a bottle of pills on Tom‟s over bed table.
She intended to ask the nurse about the pills but
forgot. Mary received a call from work on her cell
phone and had to leave. She told Tommy she
would be right back as she rushed out the door.
Tom finds the pills & swallows them, making him
seriously ill.
Is the nurse & hospital responsible for Tom’s injuries?
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54. Yes & No – I
• Yes, it is foreseeable that if a nurse leaves pills on a
child‟s over bed table that the child may swallow
them. The hospital is liable on the basis of
respondeat superior.
• No, although the result here is foreseeable (injury
to the patient), as well as the cause ( the child
finding the pills), there is an independent
intervening event – mom‟s discovery – which
relieves the nurse of responsibility, due to the
mother‟s heightened ethical duty to protect her son.
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55. Yes & No – II
Discuss
• Defense counsel argues:
– intervening Cause
– contributory Negligence: mother?
– comparative Negligence: mother?
• Plaintiff‟s counsel argues
– hospital & nurse had a duty greater than the
mother
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56. Yes & No – III
Discuss
• This case is a perfect example of why there is a need
for a trial.
• The jury determines the facts.
• The judge decides questions of law.
• A verdict needs to be reached.
• Post Verdict: there will always be someone unhappy
with the outcome.
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57. End of Trial
• Closing Statements
• Judge‟s Charge to Jury
– Example of Judge‟s Charges
– Jury Charges Must be Clear
– Jury Instructions Must Not be Prejudicial
– Court Erred in Jury Charges
– Jury Deliberation & Decision
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58. 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.
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59. Cases: Damages - I
• Plaintiff‟s Schedule of Damages
– Damages/Future pain & suffering
– Punitive Damages/Mighty Engine of
Deterrence
– Gross and Wanton Negligence
– Amount of Wrong Measured by Gravity of
the Wrong
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60. Cases: Damages - II
– Punitive Damages and Outrageous Care
– Punitive Damages for Failure to Diagnose
Inappropriate
– Surviving Spouse & Children
– Emotional Distress
– Not Excessive
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61. Cases: Damages - III
– Due to Severity of Injury/Award Fair and
Just
– Not Based on Prejudice and Passion
– Excessive
– Award Appropriate
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62. Cases: Damages - IV
– Award of $180,00 Not Excessive
– The Wrong Blood
– Excessive
– Damages Capped
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63. Joint & Several Liability
• Permits defendant to bring suit against all
persons sharing responsibility for injuries.
• Permits plaintiff to collect from any “one” or
“all” of defendants.
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64. Appeals: Grounds for
– Verdict excessive
– Evidence rejected should have been accepted
– Inadmissible evidence permitted
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65. Execution of Judgments
Follows after all appeals have been exhausted!
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66. REVIEW QUESTIONS - I
1. Describe trial process, including pretrial motions &
the functions of the judge, jury, & attorneys.
2. Describe the kinds of evidence that a plaintiff can
present in order to establish a negligent act.
3. What defenses can a defendant present in order to
refute a plaintiff's evidence?
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67. REVIEW QUESTIONS – II
4. Describe how statutes of limitations favor
defendants?
5. Describe the differences between
nominal, compensatory, hedonic, & punitive
damages.
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