Is it relevant?

While a paralegal is not going to be conducting questioning during a trial, the issue of relevance is one the paralegal will encounter.  One important area is in motion work where exhibits and testimony in support of a motion need to be relevant.

To determine whether something is relevant under California Law, one should ask 3 questions:

1. Is the offered evidence of consequence to the issues in the action?
2. Does the offered evidence have any tendency to make a fact more or less probable?
3. Even if it is relevant, is the probative value of the evidence (its ability to prove or disprove a fact) substantially outweighed by the other considerations (i.e. inflammatory nature, prejudicial nature).

The 3 elements of relevance are more concisely:

• of consequence
• probative (having a tenancy to make a fact more or less probable)
• probative value must substantially outweighs other considerations such as potential prejudice.

The practitioner can easily see that this is not a black and white test as to whether or not something is relevant.  A paralegal should be familiar with the terms and the analysis of evidence to determine relevancy, so they can be of assistance to the attorney in pointing out evidence that might not be within the parameters of relevance.

Where’s the Evidence?

The last thing any attorney or paralegal wants to be asking on the eve of trial is “Where’s the evidence?”

During the pendency of the case, from the day it first comes in and throughout discovery, the attorney and paralegal should be working together to determine what evidence is available and necessary to prove the case.

The ultimate determination of what evidence may be presented at time of trial is made by the Judge.  Only that which is sufficiently pertinent and trustworthy to be received by the jury is allowed.

Evidence must be:

•  Relevant
• Reliable
• Real

Relevant means it must prove or disprove something in issue.

Reliable means that it must be first-hand or otherwise trustworthy information.

Real means that the information must be what it purports to be; it must be authentic.

These are terms and concepts with which a paralegal should be familiar.

California Civil Procedure (Standing to Sue)

Before filing a lawsuit in California, there are several preliminary issues which the plaintiff must consider.

These include standing to sue, capacity to sue, personal jurisdiction, subject matter jurisdiction and venue to name a few.

 

In California, the law requires the plaintiff be the “real party in interest”. The “real party in interest

” is the person who has the right to sue under the applicable substantive law. This is the person who owns the property, holds title to property or some other claim that is involved.

 

The purpose of this requirement is to protect defendants against whom a judgment may be obtained from being sued again by some other claimant for the same underlying obligation or debt.  If one wants to challenge standing to sue or allege that the plaintiff is not the real party in interest, they would file a General Demurrer which will be discussed in more detail in other posts.

Discovery Outside the Rules

Here’s another great post from CEB Blog regarding discovery.  This post discusses informal discovery techniques.

Discovery Outside the Rules

California Civil Procedure (Sources of Law)

The body of law which constitutes “civil procedures” in California can be found in several different places:

▸ California Code of Civil Procedure

▸ California Rules of Court

▸ Local Rules

▸ Local-Local Rules

▸ California case Law

California Code of Civil Procedure

The California Code of Civil Procedures, a body of law created by the California legislature, is usually the first place one would seek information about California procedure.

California Rules of Court

Another set of rules that must be consulted for California law on procedures in civil matters is the California Rules of Court.  The California Rules of Court can be located on the California Courts web site located at http://www.courtinfo.ca.gov/rules.

Local Rules

The local rules for the county in which the matter is filed also must be considered in determining what civil procedures apply to a particular matter or filing.  For example, the County of Los Angeles has local rules which must be followed when filing in Los Angeles County Superior Courts.  The local rules for the county can be found on their website at http://www.lasuperiorcourt.org.

Local-Local Rules

In some counties (like Los Angeles), some of the branch courts have their own additional rules of procedure sometimes referred to as local-local rules.  These are generally a little hard to find out or research online.  Usually, if a judge has special rules or procedures he or she wants followed, they will be posted in the courtroom or given out to litigants by the court clerk or other courtroom staff.  All of these sources together make up a body of law known as California Civil Procedure.

Personal Jurisdiction

One of the preliminary considerations before filing a lawsuit is whether or not the court in which you intend to file the lawsuit has personal jurisdiction, that is jurisdiction over the defendant.  As the plaintiff, it is important that the court’s judgment be binding on the defendant under the United States Constitution, which requires that one state recognize and enforce the judgment of another state if the originating court had personal jurisdiction over the defendant.

Personal jurisdiction of the plaintiff is not really an issue. By filing an action in the state, the plaintiff consents to personal jurisdiction by the state.

The problem arises primarily with the defendant. Personal jurisdiction over a defendant exists if the defendant is domiciled in the state with an intent to remain in the state indefinitely. This would be evidenced by having obtained a driver’s license or voter’s registration in the state.

The bigger problem is when one has an out-of-state defendant. In the situation of the out-of-state defendant, the plaintiff must show that the defendant had sufficient “minimum contacts” with the state that the defendant could reasonably foresee being sued or called into court in the state.

The issue of what constitutes “minimum contacts” is a United States Constitutional issue.

Job Opening – Legal Secretary

JOB OPENING … Part-time (30 hours/week) legal secretary position for prominent personal injury law firm. Spanish speaking very helpful. Must be proficient in MS Word and Outlook, and have a certified typing speed of at least 40 wpm. Tasks will include receiving incoming calls, new client intake, investigation tasks, filing, file set up, miscellaneous correspondence, photocopying, and other secretarial tasks. Hourly rate is $10/hour; No benefits. If interested, e-mail resume to bhass@chainlaw.com.

Contracts: Conduct Invalidating Assent

When considering whether there is “mutual assent”, sometimes called a “meeting of the minds” which is required for a contract to be formed, one of the issues is the existence of conduct that invalidates assent.  

Conduct Invalidating Assent:

Duress

• Any wrongful or unlawful act or threat that overcomes the free will of a party, e.g. physical compulsion or improper threats

Undue Influence

• taking unfair advantage of a person by reason of a dominant position based upon a confidential relationship

Fraud (Intentional Misrepresentation)

• in the execution – misrepresentation that deceives the defrauded person as to the nature of the contract; renders the transaction void
• in the inducement – fraud (Elements:  false representation, of fact, that is material, with knowledge of falsity and intent to deceive, and justifiable reliance)

Mistake

• Mutual – both parties mistaken as to the same facts
• Unilateral – one party is mistaken (no relief granted)

Paralegal/Legal Secretary Jobs – Downtown L.A.

3 Positions with Downtown Los Angeles Law Firm
Send Resume to nikki@jacobsonhan.com

1. Bilingual (English & Spanish) EXPERIENCED Workers’ Compensation Secretary / Paralegal / Assistant

2. Bilingual (English & Spanish) EXPERIENCED Immigration Secretary / Paralegal / Assistant

3. Paralegal Internship (Volunteer) Position

What is the Statute of Frauds?

The Statute of Frauds sounds like it should have more to do with Tort law than contract law, but it is a central issue in contract enforcement.  Specifically, it address the enforceability of certain oral contracts.

• The Statute of Frauds is a doctrine that only applies to oral contracts.  It requires that there be sufficient evidence of certain types of oral contracts or it causes them to be unenforceable.
• The Statute of Frauds applies to specific categories of oral contracts which include the following:

1. Suretyship contract (promises to pay the debt of another)
2. Promise to pay personally the debts of a decedent
3. Promise made in consideration of marriage
4. Land contracts
5. Contracts that, by their terms, cannot be fully performed within 1 year from the date of their making.
6. Contracts for sale of goods over $500.00.

All the above categories of contracts need to be in writing or be evidenced by performance or a “memorandum” or other sufficient writing.  The issue of the statute of frauds is ones of enforcement and not formation.  The contract may be properly formed, but because it is an oral contract which falls into one of the prohibited categories, it cannot be enforced in a court.