BEYOND THE CLAIM:TO LITIGATION…AND BEYOND

Jackson M. EngelsSenior Assistant Attorney General

Jackson M. EngelsSenior Assistant Attorney General

Tort Litigation DivisionFormer Counsel for WYDOT

So Who is this Guy Anyway?• Three Weeks as “Tort Litigation

Attorney”• 5 years as Counsel for WYDOT• Member of the Wyoming State Bar• Former Professional Baseball Player

Step One: Contact Your Attorney• Notify Us Immediately if You are Sued• 30 Days to File An Answer to the Complaint• Admit/Deny• Legal Representation unless…• State Self Insurance Program• No Cost to You• SSIP Pays Any Settlement or Judgment– Against the State– Against You, if you are sued in individual capacity

Role of Your Attorney• Advisor– Interpret law (case law, statute, rule)– Provide LEGAL Advice

• Legal Representative– Speak on Your Behalf– File Court Pleadings on Your Behalf– Advocate on Your Behalf– Provide Your Perspective

• Worrier– I think about the case almost as much as you do

Step Two: Meet with your Attorney• Preserve Evidence, Reports,

Documentation.• And Back it Up Electronically• Conversations can become Discoverable• So don’t talk about it with anyone• Attorney-Client Privilege• If third party is present, privilege be

defeated• I’m only your Lawyer for THIS Case

Step Three: Pleadings, Discovery, Trial

• Scheduling Conference• Self Executing Discovery• “[A] party must, without awaiting a discovery request, provide to

other parties:(A)The name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information; (B)A copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment”

• Interrogatories, Requests for Production• Depositions

Jackson’s Dos and Donts in Deposition

• DON’T:– Review Records You Did Not Rely Upon– Get Flustered– Interrupt– Argue with the Attorney

• This is the Best Way to Look Bad and Jeopardize Liability

• You Cannot Win an Argument in Deposition Format– Offer Information the Attorney didn’t Ask For– Be Afraid of Long Seemingly Uncomfortable

Pauses– Teach the Attorney What He Needs to Know

More of What Not to Do in Deposition• DON’T:

– Speculate or Guess– Think Out Loud

• “To be Honest, …” “I’m just doing the best I can…”• “I ALWAYS/NEVER…”

– Worry About Explaining Why– Be Afraid of Looking Dumb.

• Ignorance versus Untruthfulness– Answer a Question Prefaced with the Attorney’s Facts

• Don’t Let the Attorney Put Words In Your Mouth– Answer a Question Seeking a Long Narrative Answer

• “Tell Me What You Know about this Case”– Freeze or “Box” Your Testimony

• The Anxiety of Taking Your Deposition May Cause You To Forget.

Even MORE of What Not to Do…

• DON’T– Answer a Question Seeking a Long

Narrative• “Tell Me What You Know about this Case”

– Freeze or “Box” Your Testimony• You might forget something• The Anxiety of Taking Your Deposition

– May cause you to forget something

Deposition Example 1(explicit “lyrics” – viewer discretion is advised)

Deposition Example 2(explicit “lyrics” – viewer discretion is advised)

Step Four: Dispositive Motions

• Motion To Dismiss– “Judge, even if what they say is true, we

still win.”• Motion for Summary Judgment– “Judge, there is no argument on the

facts of this case. You can decide it based on the law so we don’t have to go to the expense and time of a trial.”

Step Five: Mediation• Reduce Risk• Preserve a Relationship with a

Contractor• Confidential• Not Binding• Efficient…more so than going to trial

Step Six: Trial• Purpose for Trial– Present the Evidence– Authenticate Exhibits– Persuade the Judge/Jury

• Plaintiff’s Burden– “Preponderance of Evidence” on Every

Element• Going to Trial = Going to War

Trial Continued…• Bench Trial – Judge Decides What Happened• Jury Trial – Peers Decide what Happened– Voir Dire– Opening Statement– Plaintiff’s Case

• Witnesses – Direct and Cross Examination– Defendant’s Case

• Witnesses – Direct and Cross Examination– Closing Arguments– Verdict

Post Trial…you mean there’s more?

• Post Trial Motions–Motion to Amend the Judgment–Motion for New Trial–Motion to Void/Nullify the Verdict

• Appeal– State Cases go to Wyoming Supreme Court– Federal Cases go to 10th Circuit Court of

Appeals– Then to United States Supreme Court

Appeals• Affirm or Deny the Trial Court– Issues of Law– Issues of Fact/Truth/Credibility

Thank You WYDOT for the Opportunity

• I do NOT Hope to See any of You Soon• Believe in the System – The truth Shall Set You

Free

• If the Extent of My Presentation is Just a Formal introduction…that’s okay.