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WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal. COURT OBSERVATIONS. The Summary Judgment Process Timing: after discovery Motion-response-reply “no genuine issue of material fact” Declarations/depositions

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WHERE WE ARE & WHAT WE’RE DOING

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  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Discovery • Resolution without Trial • Trial & Post-trial • Appeal

  2. COURT OBSERVATIONS • The Summary Judgment Process • Timing: after discovery • Motion-response-reply • “no genuine issue of material fact” • Declarations/depositions • Oral argument • Only if requested

  3. COURT OBSERVATIONS • Quality of Lawyering • Written Materials • Oral Argument

  4. COURT OBSERVATIONS • Strategy • SJ as “discovery” of legal theories • Partial summary judgment

  5. COURT OBSERVATIONS • Strategy – winnowing process • No genuine issue of material fact • 1987 • Legal issue as to standard • Disability evaluation v. treatment • Factual issues • Information Dr’s provided • Are factual issues “material”?

  6. COURT OBSERVATIONS • Strategy – winnowing process • No genuine issue of material fact • 1989 • Visit for treatment • No legal issue as to standard • Factual issues • Who did the exam? • Causation? • Are factual issues material? • Negligence established anyway? • Failure to request chart?

  7. DISCOVERYScope & Limits • 26(b)(1) General • Not privileged • Relevant to • Claim/defense • Subject matter • 26(b)(2) Court discretion to limit • Individual case • Local rule - #requests to admit • 26(b)(3) & (4) Exceptions • Trial Preparation Materials • Experts

  8. DISCOVERYFR 26(b)(4) Trial Prep Experts • Experts • Fact W’s v. opinion W’s • Fact - FR 26(a)(1)(A)

  9. DISCOVERYFR 26(b)(4) Trial Prep Experts • Experts • Testifying experts • “opinions may be presented at trial” • FR 26(a)(2) – disclose w/ report • FR 26(b)(3) – depose after report provided • Non-testifying experts • “retained or specially employed” • FR 26(b)(4)(B) • discovery only if exceptional circumstances • Impracticable to obtain info by other means

  10. DISCOVERYThompson, p. 539 • Method • Information sought • Pl’s procedural response • Category of expert • Discovery allowed?

  11. DISCOVERYChiquita, p. 541 • Method • Information sought • Def’s procedural response • Category of expert • Discovery allowed?

  12. SKILLSDistinguishing Cases • Why different results? • Distinguish cases on their facts • Thompson • Chiquita

  13. TAKEAWAYS • Black Letter Law • FR 26(b) (4) • Exception to broad scope of discovery • Applies work-product concept to experts • Protects • Non-testifying experts • Not facts • Allows discovery if • exceptional circumstances • Impractical to obtain facts/opinions by other means

  14. TAKEAWAYS • Big theme • Tension between • Open discovery v. • Adversary system • Each party prepare own case • Discourage expert evaluations • “Undue prejudice”

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