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
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