Before You File

Before filing a civil complaint, what issues should the paralegal be considering?

The following are two important things to consider:

Subject Matter Jurisdiction

  • State or Federal
  1. If federal, is it a federal question?  (Arising out of the Constitution, Laws and Treaties of the U.S.?)
  2. If federal, is it based on Diversity Jurisdiction?  (Diversity of Citizenship and over $75,000 in controversy?
  3. If state, is it unlimited (over $25,000 in damages) or limited (under $25,000.00 in damages).
  • Special Issues in state court
  1. If state court, it something that must be filed in the unlimited jurisdiction court, e.g. Domestic Matters, Probate, Trusts, Guardianships, and Conservatorships.
  2. If state court, is it something that could be filed in small claims court, e.g. under $7,500 for an individual.

Personal Jurisdiction

  • Resident defendant
  • Non-resident defendant
  1. In rem jurisdiction (over real property in the state)
  2. Quasi in rem jurisdiction (over personal property in the state)
  3. Long-arm statute (minimum contacts)

Federal Rules of Civil Procedure?

Check your FRCP Readiness with this article from Paralegal Gateway, a great Paralegal Resource:

FRCP Readiness:  10 Practical Tips for Paralegals

Great info on Discovery

Here’s a link to some great information about discovery in California:

Discovery by the Numbers

Federal Rules of Civil Procedure?@!?

Here’s an article with some practical tips on the Federal Rules of Civil Procedure:

FRCP Readiness:  10 Practical Tips for Paralegals

Discovery – Who can be deposed?

In California, some discovery devices such as  Interrogatories and Requests for Admissions can only be served on parties to a lawsuit, e.g. plaintiff and defendant.  However, the deposition is one of the more flexible tools of discovery to the extent that a deposition can be taken of a party or a non-party.

Party Depositions

A party may be a natural person, a business entity, a non-profit organization or a governmental agency.  Any and all of these may be deposed (have a deposition taken).  With a party which is not a natural person, the party must produce employees, officers, directors or other witnesses that are affiliated with the party.  If the party serving the deposition notice is not sure of the person with the requisite knowledge, the notice can specify that the “person most knowledgeable” should appear to testify.

Non-party Depositions

A non-party witness may also be deposed.  The non-party may be a witness to the events related to the litigation or even a person with knowledge as to business records.  With a non-party, the deposition notice must be served with a subpoena and cannot be simply mailed as with the notice sent to a party.

Documents

Both party and non-party deponents can be compelled to bring documents to the deposition.  The documents requested must be described with reasonable particularity in the Notice of Deposition served.

Discovery – Depositions

A deposition is essentially an oral interview of a witness or party by the opposing attorney under oath and recorded by a court reporter.

Why do a deposition?

  • A deposition can be taken of any witness, party or non-party
  • A deposition is the only discovery device by which an attorney can obtain spontaneous testimony
  • A deposition can force a party or witness to commit himself or herself to a particular version of the facts
  • A deposition can be used to preserve testimony for trial
  • A deposition can be used to ask about the contents of documents, not merely their location and identity
If depositions are so useful, why aren’t they used more?
  • They are very expensive (the party taking the deposition must pay for their own attorney and the court reporter’s time)
  • The length of the deposition cannot be controlled very easily, so they can go on past an affordable length quite easily
As with all discovery, the paralegal has a large role in preparation for the deposition.  The paralegal may prepare the notice, arrange the time, arrange for the court reporter and videographer (when needed), contact the witness, prepare the client if needed, gather documents to be reviewed or used for the deposition and other related tasks.

Paralegal Essentials – Civil Procedure (Quiz)

Do the following quiz as a way to see how much you know about California Civil Procedure.  Answers will be in tomorrow’s post.

1.  Technically speaking, defendants are “in default” if they fail to file an answer, demurrer or other responsive pleading within the time allowed by law.  True or false?

2.  Once the clerk has entered the default of the defendant, there is no need to “prove up” the judgment, and the plaintiff can begin the collection procedures.  True or false?

3.   The court can grant relief that was not demanded in the complaint if the default of the defendant has been entered as long as the relief requested is reasonable.  True or false?

4.   The California discovery act is identical to federal law in all points.  True or false?

5.  Most discovery procedures are available as a matter of right, and no showing of “good cause” is required.  True or false?

6.  A deposition is testimony taken before trial, not under oath, subject to cross examination, and preserved in writing.  True or false?

7.  A deposition can be taken either orally or in writing.  True or false?

8.  Discovery is usually filed with the court.  True or false?

9.  A deposition cannot be recorded using video or audiotape.  True or false?

10.  By federal law, no default judgment may be taken against which of the following persons?

  • Person living out of state
  • Person living out of the country
  • Person in active military service

Paralegal Essentials – Civil Procedure – Quiz (Key)

Here are the answers to yesterday’s quiz:

1. The Judicial Council has not developed a form for cross-complaints.  False

2. Complaints that are drafted on pleading paper must use the recycled paper. True

3. If the plaintiff or defendant in a complaint is a corporation, their status as such does not need to be stated as the other party can discover that with a process called “discovery” during the lawsuit.  False

4. If Walter and Robert are partners in a general partnership, and ABC Company owes them money, either of them can file a complaint to collect the money in their individual name since each general partner has authority and it is not necessary to file in the name of the partnership.   False

5. If a plaintiff is ignorant of the true name of a possible defendant, that plaintiff may include fictitious names as defendants in the complaint, and they are known as DOE defendants.

6. In a tort case , a plaintiff may seek PUNITIVE damages for “oppression, fraud or malice” by the defendant.

7. Since a Judicial Council has been approved by the legislature, it will withstand an attack by the defendant even if one or more blanks are inadvertently not filled in or checked.  False

Paralegal Essentials – Civil Procedure – Quiz

Test your basic knowledge of civil procedure:

1. The Judicial Council has not developed a form for cross-complaints.  True/False

2. Complaints that are drafted on pleading paper must use the recycled paper.  True/False

3. If the plaintiff or defendant in a complaint is a corporation, their status as such does not need to be stated as the other party can discover that with a process called “discovery” during the lawsuit.  True/False

4. If Walter and Robert are partners in a general partnership, and ABC Company owes them money, either of them can file a complaint to collect the money in their individual name since each general partner has authority and it is not necessary to file in the name of the partnership.   True/False

5. If a plaintiff is ignorant of the true name of a possible defendant, that plaintiff may include fictitious names as defendants in the complaint, and they are known as _________ defendants.

6. In a tort case , a plaintiff may seek _______ damages for “oppression, fraud or malice” by the defendant.

7. Since a Judicial Council has been approved by the legislature, it will withstand an attack by the defendant even if one or more blanks are inadvertently not filled in or checked.  True/False

Answers in tomorrow’s post.

Calendaring under the CCP

Here’s a good article on the issue of calendaring under the CCP and what the paralegal should know on the subject:

Extending Time Based On Service Method . . . or Not

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