Nebraska Civil Practice & Procedure Manual

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1 Nebraska Civil Practice & Procedure Manual TABLE OF CONTENTS Case Analysis, Screening & Preparation...17 I. Introduction: Case Analysis, Screening and Initial Preparation...23 II. Questions of Ethics, Common Sense and the Merits in Accepting or Rejecting a Client s Case...23 A. Conflicts of Interest...23 B. Fact Gathering: Two Steps...24 C. Assessing the Potential of a Conflict...24 D. Lack of Experience...25 E. No Meritorious Claim Governing Rules and Law Statutes of Limitations and Repose What Does the Client Want and Is It Possible to Get? Accumulating the Facts...27 F. Other Counsel?...27 G. Is It Practical for Me or My Firm to Accept This Case?...28 III. Advising the Client Whether the Case is Accepted...28 A. Disengagement Letters - Declining Employment...28 B. Engagement Letters...29 IV. Forms A. Disengagement Letter (Sample)...31 B. Engagement Letter (Sample)...32 C. Fee Contract (Sample)...33 D. Contingent Fee Agreement (Sample)...37 Getting Started: Pleadings, Complaints, and Service of Process...41 I. State Court...47 A. Complaints Form/Contents Attorney Signature Remedies...48 B. Statutes and Ordinances...48 C. Pleading Special Matters Capacity Fraud, Mistake, Undue Influence, Condition of the Mind Conditions Precedent

2 4. Official Document or Act Judgment Time and Place Special Damages Libel, Slander, and Invasion of Privacy...50 D. Joinder of Claims and Parties Joinder of Claims Joinder of Parties Misjoinder and Nonjoinder...51 II. Federal Court...51 A. Complaint Form/Contents Attorney Signature Remedies Civil Cover Sheet Pleading Special Matters...54 a. Fraud or Mistake...54 b. Time and Place...54 c. Certain Civil Rights Suits...54 d. Special Damages...55 e. Interest...55 f. Costs...55 g. Attorney Fees...55 h. Capacity, Authority to Sue, and Legal Existence...55 i. Conditions Precedent...55 j. Official Document or Act...55 k. Judgment...56 B. Joinder of Claims and Parties Joinder of Claims Joinder of Parties Misjoinder and Nonjoinder...57 C. Removal Actions Jurisdiction Procedure for Removal Answer...58 D. Request for Juries and Places of Trial...59 III. Service of Process...59 A. State Court...59 B. Federal Court...60 IV. County Courts

3 V. Forms Complaint...63 Complaint and Demand for Jury Trial...65 Assignment...70 Civil Cover Sheet...71 Responsive Pleadings and Motions...73 I. Responsive Motions...79 A. Motions in State Court Motion to Dismiss Challenging Personal Jurisdiction and Service Motions to Make More Definite and Certain to Strike: Neb. Ct. R. Pldg (E-F) (2008) Motions to Separately State and Number...81 B. Federal Motions Effect on Time to Plead Under Federal Rule 12(a) Presenting Defenses by Motion: Federal Rule 12(b) (Official Form 19)...81 a. Personal Jurisdiction, Process and Service: Federal Rules 12(b)(2), (4), (5)...82 b. Subject Matter Jurisdiction: Federal Rule 12(b)(1)...83 c. Venue: Federal Rule 12(b)(3)...83 d. Rules 12(b)(7) & 19: Joinder of Necessary and Indispensable Parties...86 e. Failure to State a Claim: Federal Rule 12(b)(6) Motions for a More Definite Statement and To Strike: Federal Rules 12(e) and 12(f)...89 II. Answers...90 A. Nebraska Rules on Answers Form for the Answer Time for Filing the Answer Admissions or Denials of the Complaint s Allegations Affirmative Defenses...92 B. Answers in Federal Court Form of the Answer Time for Filing the Answer Admissions or Denials of the Complaint s Allegations Affirmative Defenses Pleading Special Matters Inconsistent Pleadings

4 III. Replies and Answers to Counterclaims and Cross-Claims...95 A. Replies in Nebraska State Court Time for Filing the Reply...95 B. Replies and Answers to Counterclaims in Federal Court Time for Filing an Answer to a Counterclaim or Cross-Claim in Federal Court...95 IV. Recoupments, Set-offs, Counterclaims and Cross-Claims...95 A. Pleading Cross-Demands in Nebraska State Court Distinctions Between Recoupments, Set-offs and Counterclaims Required Relationship of Set-off, Counterclaim, Cross-Claim to Plaintiff s Claim...96 B. Federal Counterclaims and Cross-Claims Federal Cross-Claims Federal Counterclaims...97 V. Third-Party Actions...98 A. Third-Party Practice in Nebraska (Form 8)...98 B. Federal Third-Party Practice...99 VI. Amendments A. Amendments in Nebraska Courts (Form 9) B. Amendment of Pleadings in Federal Court C. Relation Back of Amendments VII. Forms Form #1: Motion to Dismiss Form #2: Motion to Make More Definite and Certain Form #3: Motion to Strike Form #4: Motion to Separately State and Number Form #5: Official Form 19 - Motion to Dismiss Form #6: State Court Answer and Counterclaim Form #7: Federal Court Answer Form #8: Third-Party Complaint and Praecipe Form #9: Motion for Leave to File Amended Complaint Summary Judgment Motions I. Introduction and Tactical Considerations II. Genuine Issue of Material Fact

5 III. Pertinent Nebraska Statutes and the Federal Rules for the District of Nebraska A. Timing, Evidence and Argument - State Court B. Timing, Evidence and Argument - Federal Court C. Permissible Evidence - State Court D. Permissible Evidence - Federal Court E. Briefs - State Court F. Briefs - Federal Court IV. Case Not Fully Adjudicated on Motion and Partial Summary Judgments V. Opposing a Motion for Summary Judgment A. Continuances B. Shifting Burdens C. Evidence Considered in the Light Most Favorable to the Party Opposing Summary Judgment VI. Conclusion VII. Forms Motion for Summary Judgment Notice of Hearing Index of Evidence for Federal Court Sample Foundational Affidavit for Federal Court Nebraska State Court Discovery Guide I. Introduction II. Goal and Target of Discovery III. Changed Discovery Scope and Limits IV. Informal Discovery V. Written Discovery A. Interrogatories to Parties (Neb. Ct.R.Disc ) B. Requests for Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes (Rule 6-334) C. Deposition Upon Written Interrogatories (Rule 6-331) D. Entry Upon Designated Land or Other Property (Rule 6-334(a)(2)) E. Requests for Admission (Rule 6-336) F. Physical and Mental Examination of Persons (Rule 6-335)

6 G. Other Considerations Supplementing Discovery (Rule 6-326(e)) Stipulations of the Parties (Rule 6-329) a. Extensions of Time b. Discovery Stipulations Under Rule Evidence for Trial Failure to Make Discovery or Supplement Discovery, etc.: Sanctions (Rule 6-337) Filing of Discovery Materials (Rule 6-326(g)) VI. Discovery From a Nonparty Without a Deposition (Rule 6-334(A)) VII. Depositions Upon Oral Examination (Rule 6-330) A. Preparing Clients and Lay Witnesses B. Preparing Expert Witnesses C. Taking Depositions D. Deposition of Person Before Action Filed or Pending Appeal (Rule 6-327) E. Persons Before Whom Depositions May Be Taken (Rule 6-328) F. Interpreters (Proposed Rules) G. Using Depositions in Court Proceedings (Rule 6-332) VIII. Closing IX. Forms Requests for Admissions Requests for Production of Documents and Other Things Interrogatories Certificate of Personal Consultation Motion to Compel Notice of Deposition Answers to Interrogatories and Responses to Requests for Production of Documents Objections to Requests for Production Notice of Intent to Serve Subpoena Subpoena Duces Tecum with Attached Rule 34A Pretrial I. General Comments II. Calling Cases to Trial A. Court Rules B. Case Progression Standards C. Motion for Trial Progression

7 III. Pretrial Conference A. Purpose B. Procedure C. Case Law IV. Motions in Limine A. Appeal B. Abuse V. Jury Instructions VI. Conclusion VII. Forms Form A: Motion for Trial Progression Form B: Pretrial Order Form C: Witness List Form D: Exhibit List Form E: Unique Points of Law Form F: Plaintiff s Statement of Elements Form G: List of Anticipated Discovery and Pretrial Motions Form H: Plaintiff s Pretrial Conference Memorandum Form I: Defendant s Motion in Limine Trial I. Jury Selection A. Practical Advice B. Qualifications and Disqualifications C. Selecting Jurors D. What Questions Should Be Asked E. Tort Reform II. Opening Statement A. Use of Evidence B. Use of Demonstrative Aids/PowerPoint III. Examination of Witnesses A. Direct Examination General Direct Examination of a Hostile/Adverse Witness Use of Demonstrative Exhibits in Direct Examination Avoiding Objections B. Cross-Examination General Technique C. Expert Witnesses

8 IV. Objections A. General B. Unfair Prejudice C. Necessity of Timely Objection D. Specific Ground of Objection Form of the question is not a specific ground of objection The document speaks for itself is not a valid objection You can t impeach a witness you called! - also not a valid objection E. Motion to Strike/Request for Curative Instruction F. Offer of Proof V. Jury Instructions VI. Final Argument A. General B. Use of Jury Instructions C. The Golden Rule D. Impermissible Tactics E. What to Do If Opposing Counsel Uses Impermissible Tactics VII. Jury Deliberations and Verdict A. Questions from the Jury During Trial During Deliberations B. Hung Jury C. Polling the Jury VIII. Motion for New Trial Enforcement of Judgments Collections I. Garnishment in Aid of Execution II. Execution III. Exemptions IV. Examinations in Aid of Execution V. Filing Foreign Judgment VI. Prejudgment Attachment and Garnishment

9 VII. Forms Form #1: Garnishment Affidavit and Praecipe Form #2: Application and Order of Continuing Lien Form #3: Application to Deliver Nonexempt Funds Form #4: Employers Instructions for Garnishment, Type A and Interrogatories Form #5: Employers Instructions for Garnishment, Type B and Interrogatories Form #6: Employers Instructions for Garnishment, Type C and Interrogatories Form #7: Employers Instructions for Garnishment, Type D and Interrogatories Form #8: Employers Instructions for Garnishment, Type E and Interrogatories Form #9: Employers Instructions for Garnishment, Type F and Interrogatories Form #10: Garnishments, Employers Instructions Form #11: Notice of Extension Form #12: Notice of Filing Foreign Judgment Form #13: Notice to Judgment Debtor Form #14: Order of Summons in Garnishment and Interrogatories Form #15: Release of Garnishee Appellate Practice in Nebraska: A General Overview I. Perfecting Your Appeal A. Notice of Appeal B. Issues on Appeal: Assignment of Error C. The Record D. Petition to Bypass E. Constitutional Questions II. Briefing Your Appeal III. Oral Argument IV. Disposition and Beyond A. Summary Disposition B. Motion for Rehearing C. Petition for Further Review Appeals from County to District Court I. Generally II. Appeals Procedure III. Supersedeas Bond IV. Transcript

10 V. Bill of Exceptions VI. Statement of Errors VII. Trial on Appeal VIII. Liability of Surety IX. Dismissal for Procedural Reasons X. Costs XI. Judgment by Confession Administrative Appeals I. Appeals Under the Administrative Procedures Act A. Applicability B. Appeals to the District Court Time for Taking Appeal Parties Service of Summons The Petition Preparation of the Official Record The Standard of Review C. Appeals to the Nebraska Court of Appeals II. Error Proceedings A. Decisions Which May Be the Subject of an Error Proceeding B. Perfecting the Error Proceeding C. Time for Filing D. Allegations in the Petition in Error E. Presenting the Full Record F. Standard of Review III. Claims Statutes A. Claims Against Metropolitan Cities The Appeals Statute Claims Within the Purview of the Statute Review in the District Court B. Claims Against Counties The Appeal Statute Allegations on Appeal Claims Within the Purview of the Statute Effect of Failure to File Claim with the County Clerk in a Timely Fashion Review in the District Court

11 V. Forms Sample Petition on Appeal Under the Administrative Procedures Act Sample Proof of Service for Appeal Under the Administrative Procedures Act Sample Answer on Appeal Under the Administrative Procedures Act Sample Petition in Error Sample Praecipe for Transcript Sample Petition on Appeal from Denial of a Claim in Metropolitan Cities Sample Petition on Appeal from Denial of a Claim by a County

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