Civil Litigation II: Final Examination
Factual Scenario for questions that follow:
Summer is approaching, and John Smith has a crush on a girl whom he supervises at work named Jane Doe. John decides that he wants Jane to be his girlfriend before the Fourth of July, so he starts complimenting her daily, going to her office as often as possible, hovering over her whenever she is working on her computer and rubbing her shoulders. After a couple of weeks of this behavior, John asks Jane out on a date. Jane tells John that she does not date people with whom she works, that his recent conduct/advances have made her uncomfortable and she just wants their relationship to be professional. John becomes angry and fires Jane.
Jane sues the company that she formerly worked (where John still works) in federal court for sexual harassment. Jane is represented by Natasha Love and John is represented by Timothy Cupid.
1. Aside from the standard or form Interrogatories, draft 3 interrogatories directed toward specific information that Ms. Love on behalf of Jane Doe might want to serve, including an explanation for why each could be important to the case. (15)
In the context of this case, the three (3) interrogatories directed toward specific information that Ms. Love on behalf of Jane Doe might want to service include:
Interrogatory No. 1: Defendant’s conduct
- Describe any comment, statement, conduct, conversation, or report made by the Defendant, at the scene of the occurrence or at any time, concerning facts relevant to sexual harassment in this case. This will help Ms. Love acquire information surrounding John’s conduct that amounts to sexual harassment on Jane’s end.
Interrogatory No. 2: People with personal knowledge:
- Identify any individual who has a personal knowledge of the circumstances and facts of this case and any person you intend to call as a witness at the trial, including any person who was an eyewitness, or claims to be an eyewitness, regarding all or part of the occurrence. In your answer, state the name, address, telephone number, substance of their knowledge, lay opinions, and expected testimony. The information given will assist Ms. Love gain knowledge about other persons who might provide more evidence into this case.
Interrogatory No. 3: Facts of occurrence:
- Give a detailed statement of how you contend the occurrence took place, including defendant’s proposal, Jane’s response, any arguments made along the proposal, the date, time, location of the incident, the views of each party, and the impact of your response to the defendant’s offer on your job. Facts will be used to prove sexual harassment by John on Jane, and its impact on Jane’s employment status.
2. Draft 3 Requests for Production of Documents that Ms. Love on behalf of Jane Doe might issue to Defendant and explain why she would want the documents requested. (15)
Request No. 1: All documentation for any loss of earning you claim resulted from the incident which is subject of this lawsuit.
Request No. 2: All documentation for any other damage claimed to have resulted from the incident which is the subject of this lawsuit.
Request No. 3: A copy of each exhibit, photo, or recording which you expect to utilize, present, or use at trial and/or introduce into evidence at trial.
Purposes of the documents: The reason for presenting these documents is to use them as evidence at trial. Ms. Love will use the documents to prove and claim for damages on behalf of Jane. As these documents are subject of this lawsuit, any losses incurred by Jane out of the incident will be compensated.
4. What is redirect examination? In addition to explain what redirect examination is, describe the limitations of what is permitted on redirect. (10)
Redirect examination refers to the additional direct examination of a witness following cross-examination to rehabilitate the witness, correct mistakes, refute misleading inferences from cross examination, clarify uncertainties and obscurities, and address new issues raised in cross-examination. Upon completion of cross-examination, the attorney who called the witness conducts redirect examination to clarify the testimony. If appropriately done, redirect examination assists limit or repair some of the damage inflicted on cross, explain new issues raised, and refocus the jury on the most appropriate aspects of the case.
However, redirect examination is associated with significant limitations. Redirect examination neither brings a destroyed witness back from the dead, nor does it make the other points disappear. Attorneys expect too much from redirect examination, and attempt to do too much, only to lose what could have been a more limited but positive impact. Worse, their redirect could be driven more by frustration or anger than actual strategy.
4. Explain what an Offer of Judgment under Federal Rules of Civil Procedure 68 is, the process to make an Offer of Judgment and what the effect is if it is rejected by the other side? (15)
Rule 68 allows defendants to make an “Offer of Judgment” at any point up to 14 days before trial. An Offer of Judgment resembles a settlement offer from a defendant, and carries with it important consequences if not accepted by the plaintiff. At least 14 days before the trial date, a party defending against a claim may serve the opposing party an offer to allow judgment on specified terms, with the costs then accrued. In case, within 14 days after being served, the opposing party serves written notice accepting the Offer of Judgment, either party may file the offer of notice of acceptance, including proof of service.
If an Offer of Judgment is rejected by the other side, it is termed as “Unaccepted offer.” An unaccepted offer is considered withdrawn, but does not preclude a later offer. Evidence of a rejected offer is inadmissible except in proceedings set to determine costs.
5. In a few sentences, describe what you took away from the YouTube videos posted with the exam and how you could use that information as a paralegal. (15)
In the video, “The Secret of Successful Cross-Examination,” cross examination takes a different approach from the one taken by direct and indirect examinations. During cross, you are the one to testify. To take your cross examination to the next level, a simple guideline can be followed, i.e., every question asked must be a leading question. If you ask a question using who, what, where, how, when, why, and explain, you violate the rules of cross-examinations. By appropriately following this one rule, it becomes easy to control the witness.
In Ms. Erika Wilson’s video, she demonstrated a proper direct examination using Ms. Washington’s case (the plaintiff) in a wrongful death case. In the case, direct examination is used in asking Ms. Washington questions that develop a subject in a logical sequence regarding the murder of her two children. The rule of direct examination is that questions must follow a logical sequence.
As a paralegal, I would use the information found in the video, “The Secret of Successful Cross-Examination,” and ensure that every question I ask a witness is a leading question. I will also take an oath that all questions to ask will be leading questions. Also, I will avoid using words which violate the cross-examination rules, e.g., why, who, what, where, etc. Relying on Ms. Erika Wilson’s video, I will develop questions in a logical sequence to obtain answers in a logical manner. Also, I would ensure that these questions are related to what the witness saw just before, during, or after the incident leading to the crime.
6. Identify the two types of discovery motions and explain the reason each is used.
The term “motion” refers to the request that a court issues an order to compel discovery. Motions of discovery are common in federal civil litigation. In federal civil litigation, party(s) may utilize motions during discovery for several aims, including to protect its interests during discovery, receive sufficient and appropriate information and documents to litigate a case, and to remedy discovery abuses. The two types of discovery motions are:
Interrogatories: These are the written questions that one party to a lawsuit sends to the other party, and the responding party submits written answers under oath. The answers provided are utilized as evidence by the other party during trial. The reason for using interrogatories is to acquire relevant information about a party in a lawsuit.
Deposition: Depositions are either oral or written. In federal civil litigation, the term deposition refers to a witness’s sworn out-of-court testimony. As part of the discovery process, depositions are utilized to collect information relevant to the case. In limited cases, depositions are used at trial. Also, they allow a party, including the opposing party, to have any witness respond to the asked questions orally under oath. In addition, depositions are used when one’s own witness is not available during trial.
7. Describe a hypothetical of how you could use a person’s social media during their deposition. Identify an ethical issue that it is important to avoid when researching social media to use in litigation.
In a civil case, a deposition provides an attorney with the opportunity to ask critical questions to the deponent. The deposed individual may be a party to the case, such as the defendant or the plaintiff. Alternatively, the deposed individual may be a witness to a case or a potential witness.
For example, in a civil case, where a lawyer wants to pinpoint specific knowledge and facts that a witness possesses relating to the case. In this case, a lawyer can acquire the overview of the witness based on the person’s social media accounts, e.g., Facebook. Typically, lawyers skim the social media accounts to identify the witness’ posts, comments, friends, likes, and more to help obtain a good sense of what the witness is likely to respond at the upcoming trial. However, while using social media during the witness’ deposition, certain ethical issues must be considered. One ethical issue to consider is the witness’s privacy and confidentiality. It is important for a lawyer to avoid sharing the witness’ reviews, posts, comments, and likes in Facebook and other social media profiles to unauthorized persons. Also, oversharing the witness’ information in online platforms during trial is ethically wrong.