716 West Ave Austin, TX USA

Transcription

1 GLOBAL Headquarters the gregor building 716 West Ave Austin, TX USA

2 TABLE OF CONTENTS I. INTRODUCTION About This Course... 2 Video... 2 The Law-Fact Distinction... 3 The Trial Setting... 3 Trial Routes... 4 Fraud Examiners Roles in Trials... 4 II. THE LAW AGAINST FRAUD Background and Definitions of Fraud... 7 Elements of Criminal and Civil Fraud... 8 Civil Fraud Actions... 8 Criminal Fraud Charges... 9 Legal Elements of the Cause of Action Common Civil and Criminal Actions for Fraud Misrepresentation of Material Facts (Fraudulent Misrepresentation) Negligent Misrepresentation Concealment of Material Facts Bribery Extortion Conflict of Interest Forgery Theft of Money and Property Breach of Contract Gross Negligence Breach of Fiduciary Duty The Location of the Law Procedural Versus Substantive Law Review Questions III. CIVIL AND CRIMINAL ACTIONS General Issues and Definitions Parallel Proceedings Jurisdiction and Venue State and Federal Court Systems State Courts Federal Courts Civil Complaints Filing the Complaint The Burden of Proof in Civil Trials Video Pretrial Motions in Civil Court Counterclaims and Cross-Claims Five Questions to Ask Before Instituting Civil Litigation Alternative Dispute Resolution Mediation i

3 III. CIVIL AND CRIMINAL ACTIONS (CONT.) Arbitration Neutral Evaluation Settlement Conferences Criminal Charges Initial Appearance Preliminary Hearing The Grand Jury Issues in Bringing Criminal Charges The Arraignment Prosecutorial Discretion and Plea Bargains Elements of the Charge The Burden of Proof in Criminal Trials Pretrial Motions in Criminal Court Review Questions IV. DISCOVERY Discovery in Civil Litigation Prediscovery Disclosure Pretrial Conferences Oral Depositions Video Interrogatories Requests to Produce Documents Requests for Admission Requests for Physical and Mental Examinations Requests for Inspection of Property Electronic Discovery Streamlining Discovery Limits and Qualifications to Discovery The Attorney-Client Privilege The Attorney Work-Product Doctrine The Self-Evaluation Privilege Marital Privilege Accountant-Client Privilege The Fifth Amendment Privilege Against Self-Incrimination Other Privileges General Rules Regarding Privileges Protective Orders Sanctions Criminal Discovery Bill of Particulars Discovery Under Rule The Jencks Act Exculpatory Information (Brady Material) Disclosures by the Defendant A Fair Trial Discovery Issues for Expert Witnesses ii

4 IV. DISCOVERY (CONT.) The Role of Expert Witnesses Video Expressing an Opinion on Guilt Discovery Regarding Expert Witnesses Video Keeping Good Files Review Questions V. RULES OF EVIDENCE Three Basic Forms of Evidence Direct Versus Circumstantial Evidence Video Admissibility of Evidence Video Special Rules Concerning Some Types of Circumstantial Evidence Character Evidence Video Opinion Testimony Exhibits Authenticating Typical Exhibits General Points About Exhibits The Best-Evidence Rule Objections to Exhibits Tests Versus Experiments Authentication and Chain of Custody Hearsay Exceptions to the Hearsay Rule Excluding Illegally Seized Evidence Video Offers of Proof Video Review Questions VI. THE TRIAL Jury Selection Video Sample Voir Dire Picking the Jury Opening Statement Video Focusing on the Elements in the Opening Avoiding Pratfalls in the Opening Sample Opening Statement 1: The Prosecution Sample Opening Statement 2: The Defense Presenting Each Side s Case Direct Examination Video iii

5 VI. THE TRIAL (CONT.) Lay Witnesses Video Video Video Expert Witnesses Video Video Video Video Video Video Cross-Examination Video Cross-Examination of Lay Witnesses Video Cross-Examination of Expert Witnesses Video Video Video Video Redirect and Re-Cross Examination Video Video Resting the Plaintiff or Prosecutor s Case Presenting the Defendant s Case Video Criminal Informants Motion for Judgment as a Matter of Law Instructions to the Jury Closing Arguments Video Review Questions VII. VERDICT, JUDGMENT, AND SENTENCING Deliberation Video Verdict Video JNOV Motion for New Trial Judgment Video Sentencing in Criminal Cases Sentencing Hearing Sentencing Guidelines Types of Sanctions Against Individuals Sentencing of Organizations iv

6 VII. VERDICT, JUDGMENT, AND SENTENCING (CONT.) Res Judicata Review Questions VIII. APPEALS Criminal Appeals Civil Appeals Matters Considered on Appeal Appellate Process Supersedeas Bond Supreme Court Review Review Questions IX. RECOVERING ILL-GOTTEN GAINS Recovery Mechanisms Civil Remedies Restitution Asset Forfeiture Recovery for Private Parties Through Civil Litigation Evaluating the Potential for Recovery Ensuring that Proceeds, Property, and Assets Will Be There to Satisfy a Judgment Video Enforcing Civil Judgments Garnishment Enforcement and Bankruptcy Recovery Under Insurance Policies Fidelity Insurance Liability Insurance Director and Officer Liability Insurance Review Questions X. CONCLUSION XI. PRACTICAL PROBLEMS Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem v

7 XII. APPENDIX A: Florida vs. McKenzie Documents XIII. APPENDIX B: Fraud Trial Guidebook XIV. APPENDIX C: Video Transcripts XV. SOLUTIONS TO REVIEW QUESTIONS II. The Law Against Fraud III. Civil and Criminal Actions IV. Discovery V. Rules of Evidence VI. The Trial VII. Verdict, Judgment, and Sentencing VIII. Appeals IX. Recovering Ill-Gotten Gains XVI. SOLUTIONS TO PRACTICAL PROBLEMS Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem XVII. THE FRAUD TRIAL FINAL EXAMINATION... E-1 XVIII. INDEX... I-1 vi