NSBA Annual MeetingFriday, October 10, 2014

Litigation Essentials: Step-By-StepPresented by the Omaha Bar Association Young Lawyers Division

Introduction/Conclusion:Katie Kotlik, Abrahams KaslowHomero Vela, Kutak Rock

Presenters:Vicky Buter, Kutak Rock

Matt Reilly, Erickson SederstromKen Wentz III, Jackson Lewis

Joshua Yambor, Woodke & GibbonsJudicial Perspective: Hon. Patricia Lamberty

NSBA Annual MeetingFriday, October 10, 2014

Litigation Essentials: Step-By-Step

Introduction:Katie Kotlik, Abrahams Kaslow

Homero Vela, Kutak Rock

OUTLINE1. YOU'VE FILED SUIT, NOW WHAT?: COMPLETING SERVICE, RESPONDING

TO PLEADINGS, AND DOING DISCOVERY

2. THE LIABILITY OCTAGON: PINPOINTING THE DISPUTE AND DETERMINING LIABILITY

3. STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES

4. TAKE ME TO THE OTHER SIDE: IDENTIFYING OPPOSING STRATEGY, FINDING WEAKNESSES, AND ANTICIPATING DEFENSES

5. IF YOU CAN TALK THE TALK, THEN WALK THE WALK: PREPARING FOR TRIAL

6. SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE

7. WHOOPS! DID I DO THAT?: DISCUSSING LITIGATION MISTAKES AND CLEANING UP THE MESS

8. THE WAR IS OVER: FINISHING UP AFTER TRIAL

9. THINGS THAT MAKE YOU GO HMMMMMM: ANSWERING QUESTIONS

TAKEAWAYS CONCLUSION/THANK YOU

You’ve Filed Suit, Now What?

Pre-Complaint

Do not file suit too fast.Determine whether a viable claim exists or what has to be done to make it viable.Determine who are the proper parties to the action.Determine “where” the action must be brought.Anything you have to do before filing claims (i.e. exhaustion of administrative remedies)?

6

The Complaint & Service

Utilize the applicable jury instructions to plead elements.Detailed allegations – use as RFA’s.Verify?Client reviewDo not cut and paste

7

The Complaint & Service

ProofreadResearch – legal and otherwiseInclude praecipeSummonsServiceLitigation holdFirst appearance fee

8

Victoria H. ButerKutak Rock LLP

Vicki.Buter@KutakRock.com

Responding to PleadingsYou’ve been served – now

what?

Calendar response deadlineIssue litigation holdRemoval

Can you remove? Do you want to remove?

Responding to PleadingsYou’ve been served – now what?

Arbitration Can you compel Arbitration? Do you want to?

Motion to Dismiss Is there a valid Motion to Dismiss?

Personal JurisdictionFailure to State a Claim

Should a Motion to Dismiss be filed?Points to consider

Answer

You’ve been served – now what?

What Discovery should I serve? Requests for Documents? Interrogatories? Requests for Admissions?

Timing of DiscoveryDepositions

Initial Discovery

STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES

Joshua Yambor

STICKER SHOCK: PROVING DAMAGES, CALCULATING LOST INCOME, AND SUPPORTING EXPENSES

Proving Damages Medical expensesJury Instructions & Rules of EvidenceFair, Reasonable and NecessaryWhat/Who do I need to proveStipulations?Iowa v. Nebraska

Lost IncomePast/Future Loss of Earning Capacity – ExpertsWhat/Who do I need to proveGet your documents: Tax returns, W-9s, employment records

The Liability Octagon:PINPOINTING THE DISPUTE AND DETERMINING LIABILITY

MATTHEW B. REILLY

ERICKSON | SEDERSTROM

What Is the Claim?

Plaintiffs: Listen to your client

They don’t know what legal claim they have.

Defendants: Read the Complaint and talk to your client

Has the Plaintiff alleged sufficient facts to satisfy each element of the claim?

What facts are going to be in dispute?

E|S

What are my defenses or potential counterclaims?

Affirmative Defenses: In pleading to a preceding pleading, a party shall set forth

affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (Neb. Ct. R. Pldg. § 6-1108)

Also includes immunity and other common law defenses.

In an insurance defense case, be mindful of the scope of your retention when contemplating a counterclaim.

E|S

How do the defenses affect the case?

Some defenses are completely exculpatory and on the pleadings

Immunities

Statute of limitations

Contractual releases

Value of the case: 0

Some only create fact questions or require proof Contributory negligence

Assumption of risk

Contractual defenses

Value of the case: proportional

E|S

Third Party Liability

Is the named defendant liable?

Are there any other potentially liable parties?

Under what theory?

Be mindful of the statute of limitations.

E|S

What are the claimed damages?

Economic vs. non-economic

What figures, if anything, are specially pleaded?

No contest of liability

Offer to Confess Judgment

Personal injury

Soft tissue (subjective) or objective complaints?

Does the law support the prayer for relief?

Be aware of development in case law

E|S

Know your surroundings

Who is your judge?

How does he or she operate?

What forum are you in?

What would your prospective jury pool look like?

Who is opposing counsel?

E|S

Victoria H. ButerKutak Rock LLP

Vicki.Buter@KutakRock.com

Take Me to the Other Side: Identifying Opposing Strategy,

Finding Weaknesses and Anticipating Defenses

Don’t underestimate your opponentIdentify elements of proof for

claims and defensesBe creative

Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses

Use the resources readily available to you Talk to your client (and listen) Talk to potential witnesses (where

appropriate) Review documents and testimony from your

opponent’s perspective Look at documents in isolation Look at publicly available documents

regarding your client, the opposing party and subject of the case

Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses

Don’t replace fact with fantasy Question your own case Don’t believe everything your client

tells you Look for gaps in what your client is

telling you

Take Me to the Other Side: Identifying Opposing Strategy, Finding Weaknesses and Anticipating Defenses

If you can Talk the Talk, then Walk the WalkPREPARING FOR TRIAL

MATTHEW B. REILLY

ERICKSON | SEDERSTROM

Create a Theme and Pinpoint your Theory

Start early!

Keep things clear and concise

This is your ultimate message to the court or jury

Be flexible

Need to adapt to unforeseen developments

E|S

Elements of your Claim or Defense

Forget about winning or losing for a moment

What do I need to do to get my claim to the jury?

What do I need to do to take a claim away from the jury?

Go for the win - write your closing

If I can say this to the jury, I will win.

What evidence is necessary to be able to say what I need to say to win?

What testimony is necessary?

E|S

Evidence Prep

Identify what you need to get into evidence to win the case.

Be sure to cover each and every claim or defense

Identify how you’re going to get that into evidence.

What is needed for authentication, foundation.

Hearsay concerns?

E|S

Witness Prep

Review depositions

Also review all written or recorded statements and any other accounts

Testifying and non-testifying witnesses

Review reports

Factual and expert

Confirm witness availability

In-person meetings with important witnesses

E|S

Briefs and Arguments

What does the court prefer?

How complex is the case?

Outline at a minimum

What are the issues?

What law applies?

Nebraska Civil Jury Instructions

E|S

Setting the Tone

Voir Dire

Identify who you do and do not want.

What questions will assist in creating the ideal jury pool.

Opening Statement

First chance to outline the theory and establish the theme

Only make one first impression

E|S

Pretrial Motions

Motions in Limine

Be selective

Narrowly confined to specific, important issues

Maintain credibility

Daubert/Schafersman I

Be sure you’ll win

E|S

Miscellaneous

Make sure your witnesses know where they’re going and what they should wear

Write everything out

Evidence checklists

Direct/cross examination

Opening/closing

Objections to exhibits and anticipated testimony

Have copies

E|S

SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE

Joshua Yambor

SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE

Physical, Demonstrative & Documentary Evidence– What do I need to prove my case?

• Medical records and bills, Reports, Photographs, etc..– Is this evidence helpful?– How do I to get this exhibit into evidence?

– Be prepared!– Rules of Evidence– Self-Authenticating– Records custodians– Physicians– Stipulations

• Use of Depositions

SHOW & TELL: USING PHYSICAL, DEMONSTRATIVE, AND DOCUMENTARY EVIDENCE

Is the witness unavailable? StipulationsDemonstrative Exhibits

- Will it assist the jury?- Get your equipment reserved (make sure

it works) (OBA Rents!)- Disclose it to the other side (and the

judge!)

WHOOPS! DID I DO THAT?: DISCUSSING LITIGATION MISTAKES AND CLEANING UP THE

MESS

• Moving to Amend a pleading . . . then failing to file the Amended Pleading when the Motion is granted

• General Discussion

The War is Over: Finishing Up After Trial

Post-Trial

Motion for new trialMotion for JNOV (must ask for directed verdict)Motion for Fees?Costs?Appeal?

40

Takeaways

• Prepare, prepare, prepare• Know your calendar • What/Who do I need; fair, reasonable, and necessary• Know your client, know the law and know where you are• Before drafting a complaint, fully research the opposing party,

including social media sites.• When drafting a complaint, use short sentences, similar to

requests for admission.• During trial, make sure you make a motion for directed verdict

to preserve your ability to file a Motion for JNOV post-trial.• Be Prepared!

THINGS THAT MAKE YOU GO HMMMMMM:

• Questions?

NSBA Annual MeetingFriday, October 10, 2014

Litigation Essentials: Step-By-Step

Conclusion:Katie Kotlik, Abrahams Kaslow

Homero Vela, Kutak Rock