PREPARING FOR TRIAL IN FEDERAL COURT

Transcription

1 PREPARING FOR TRIAL IN FEDERAL COURT Third Edition Contact us at (800) or

2 Preparing for Trial in Federal Court F-2 Handling Federal Discovery Federal Trial Evidence Related Texts Copyright 2012 James Publishing, Inc. ISBN: This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher does not render legal, accounting, or other professional services. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment, and research original sources of authority and local court rules. The publisher and the author make no representation concerning the contents of this publication and disclaim any warranties of merchantability or fitness for a particular purpose. We view the publication of this work as the beginning of a dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (714) or send your comments to: Managing Editor James Publishing 3505 Cadillac Avenue, Suite H Costa Mesa, CA First Edition, 4/94 Rev. 1, 6/95 Second Edition, 6/96 Rev. 1, 5/97 Rev. 2, 3/98 Rev. 3, 3/99 Rev. 4, 2/00 Rev. 5, 4/01 Rev. 6, 2/02 Rev. 7, 2/03 Rev. 8, 4/04 Rev. 9, 4/05 Rev. 10, 4/06 Rev. 11, 5/07 Rev. 12, 4/08 Rev. 13, 12/09 Third Edition, 12/10 Rev. 1, 11/11 Staff Lisa J. Dunne, Managing Editor Rebecca Aranda, Production Editor Amanda Winkler, Production Manager

3 F-3 About the Author Author of the Second Edition Phillip J. Kolczynski wrote the Second Edition of Preparing for Trial in Federal Court in 1996 and wrote the annual supplements to the work through He practices in federal and state courts and specializes in aviation, product liability and other complex civil litigation involving technical and scientific issues. He is licensed to practice in California, Ohio and the District of Columbia, and is admitted before many federal district and circuit courts. Phillip Kolczynski received his J.D. from Case Western Reserve School of Law, Cleveland, Ohio, where he was Notes Editor of the Journal of International Law. He received his undergraduate education at Marquette University, Milwaukee, Wisconsin where he held a full Navy ROTC scholarship. Mr. Kolczynski has published numerous law review and professional journal articles on federal civil litigation and trial practice and is a frequent lecturer on the procedural and substantive areas in which he specializes.

4 Preparing for Trial in Federal Court F-4 Forms Contributor Benjamin E. Griffith, Esq. Michael S. Carr Griffith & Griffith Cleveland, Mississippi Additional Forms Contributed by: Andrew J. Schatkin, Esq. Law Offices of Andrew J. Schatkin Bayshore, NY Eric L. Siegel, Esq. Henrichsen Siegel Washington, D.C. Konrad L. Trope, Esq. Callahan & Blaine Santa Ana, California Editorial Advisory Board Adrienne Berry, Esq. Segal, Isenberg, Sales, Stewart, Cutler & Tillman Louisville, Kentucky Elizabeth J. Cabraser, Esq. Lieff, Cabraser, Heimann & Bernstein San Francisco, California Milford W. Dahl, Esq. Rutan & Tucker Costa Mesa, California Paul H. Dawes, Esq. Latham & Watkins San Francisco, California John S. Hoff, Esq. Law Offices of John S. Hoff, P.C., and Associates Chicago, Illinois

5 F-5 Contributors Mark O. Kasanin, Esq. McCutchen, Doyle, Brown & Enersen San Francisco, California Marc S. Klein, Esq. Sills Cummis Zuckerman Radin Tischman Epstein & Gross Newark, New Jersey Louise A. LaMothe, Esq. Riordan & McKinzie Los Angeles, California Juanita Madole, Esq. Speiser, Krause, Madole & Cook Irvine, California Wallace C. Magathan, III, Esq. Burd, Downs & Magathan Miami, Florida R. Wayne Olmsted, Esq. Balfour, MacDonald, Mijuskovic & Olmsted Costa Mesa, California Joseph J. Ortego, Esq. Rivkin, Radler & Kremer Uniondale, New York Debra E. Pole, Esq. Brobeck, Phleger & Harrison Los Angeles, California Edward Reich, Esq. Reich & Reich Brooklyn, New York James W. Wester, Esq. Underwood, Wilson, Berry, Stein & Johnson Amarillo, Texas

6 Preparing for Trial in Federal Court F-6 TABLE OF CONTENTS Chapter 1 ORGANIZATION AND STRATEGY I. APPLICABLE RULES 1:01 Generally 1:02 Timing and Deadlines 1:03 Local Rules 1:04 Individual Judges Rules and Standing Orders 1:05 Significant Specific Local Rules and Standing Orders 1:05.1 Settlement Rules 1:05.2 Rules Regarding Stipulations 1:05.3 Rules Regarding Motion Hearings 1:05.4 Rules Regarding Briefs and Exhibits 1:05.5 Rules Regarding Case Management Conferences 1:05.6 Disclosure Requirements 1:05.7 Rules Regarding the Format and Timing of Summary Judgment Motions and Opposing Papers 1:05.8 Rules Regarding the Format, Timing, and Opposition to General Motions 1:06 Sanctions for Failure to Comply With Local Rules and Standing [ 1:07-1:09 Reserved] II. AUDIT AND ORGANIZE THE FILE 1:10 Generally 1:11 Timing 1:12 Review and Organization [ 1:13-1:14 Reserved] III. COLLECT AUTHORITY IV. DEVELOP A THEME AND LITIGATION PLAN 1:15 Develop a Case Theme 1:16 Analyze the Pleadings 1:17 Create a Proof Outline [ 1:18-1:19 Reserved] V. CHOOSING A MAGISTRATE OR SPECIAL MASTER A. Consenting to a Magistrate Judge 1:20 Magistrate Authority 1:21 Weighing the Advantages and Disadvantages 1:22 Procedure for Consenting 1:23 Practice Pointers B. Working With a Special Master 1:24 Generally 1:25 Types of Special Masters 1:25.1 Consent Masters 1:25.2 Trial Masters 1:25.3 Pretrial and Post-Trial Masters 1:26 Expanded Role for Masters Who Are Not Magistrates 1:27 Advantages and Disadvantages of Special Masters

7 F-7 Table of Contents FORMS 1-01 Quick Reference Notebook Index 1-02 Proof Outline 1-03 Detailed Proof Outline 1-04 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge 1-05 Notice, Consent, and Reference of a Dispositive Motion to a Magistrate Judge Chapter 2 PLEADING PRACTICE I. THE COMPLAINT 2:01 Generally 2:02 Level of Detail 2:03 Particular Matters That Require Detailed Pleadings 2:04 The Plausibility Standard II. THE ANSWER 2:05 Generally 2:06 Special Matters 2:07 Affirmative Defenses [ 2:08-2:09 Reserved] III. COUNTERCLAIMS OR CROSS-CLAIMS 2:10 Generally 2:10.1 Counterclaims 2:10.2 Cross-Claims 2:11 Procedure 2:12 Practice Pointers [ 2:13-2:14 Reserved] IV. THIRD PARTIES 2:15 Generally 2:16 Procedure [ 2:17-2:19 Reserved] V. JOINDER A. Compulsory Joinder 2:20 Necessary Parties 2:21 Indispensable Parties 2:22 Strategy for Addressing Joinder Issues B. Permissive Joinder 2:23 When Joinder Is Permitted 2:24 Advantages and Disadvantages of Permission Joinder 2:25 Procedure [ 2:26-2:29 Reserved] VI. AMENDING PLEADINGS 2:30 When and How to Amend Pleadings 2:31 Relation Back of Amendments 2:32 Motions to Amend the Pleadings 2:33 Opposing Motions to Amend Pleadings [ 2:34 Reserved]

8 VII. DECLARATORY RELIEF 2:35 Generally 2:36 Controlling Law and Jurisdiction 2:37 Advantages and Disadvantages of Actions for Declaratory Relief 2:38 When and How to Seek Declaratory Relief 2:39 Frequent Recurring Issues 2:40 Review or Appeal FORMS 2-01 Civil Case Cover Sheet 2-02 Summons in a Civil Action 2-03 Notice of a Lawsuit and Request to Waive Service of a Summons 2-04 Waiver of the Service of Summons 2-05 Plaintiff s First Amended Complaint 2-06 Answer, Affirmative Defenses 2-07 Stipulation and (Proposed) Order Extending Time for Defendant to Answer 2-08 Affirmative Defenses 2-09 Motion to Amended Complaint 2-10 Stipulation and Order Allowing Plaintiff to Amend Complaint 2-11 Opposition to Motion to Amended Complaint 2-12 Motion for More Definite Statement 2-13 Motion for Extension of Time to Answer or Defend 2-14 Stipulation and Order Extending Deadline to Respond to Amended Consolidated Class Action Complaint 2-15 Tolling Agreement Chapter 3 Preparing for Trial in Federal Court F-8 PLANNING CONFERENCES AND INITIAL DISCLOSURES I. PLANNING CONFERENCE WITH OTHER PARTIES 3:01 Purpose 3:02 Timing of the Conference 3:03 Procedure for Conference and Report 3:04 Practice Tips II. SCHEDULING CONFERENCE WITH COURT 3:05 Generally 3:06 Timing 3:07 Procedure 3:08 Practice Tips [ 3:09 Reserved] III. INITIAL DISCLOSURES 3:10 Generally 3:11 Timing of Disclosures 3:12 Procedure for Disclosures 3:13 Practice Tips FORMS 3-01 Joint Status Report and Discovery Plan 3-02 Initial Disclosures 3-03 Plaintiff s Initial Disclosures

9 F-9 Table of Contents Chapter Plaintiff s Supplement to Initial Disclosures 3-05 Motion to Amend Case Scheduling Order 3-06 Defendants Response to Plaintiff s Third Motion to Amend Case Management Order 3-07 Motion to Amend Case Scheduling Order 3-08 Conference and Scheduling Deadlines Chart DISCOVERY I. THE DISCOVERY PLAN A. Establishing Goals 4:01 Note the Purpose of Discovery 4:02 Recognize That It Is Important to Be Efficient 4:03 Determine the Goals B. Formulating the Plan 4:04 How to Begin 4:05 Use Consultants and Experts 4:06 Consider Informal Discovery 4:07 Craft an Efficient Plan 4:08 Preserve Evidence 4:09 Set Settlement Goals Along With Discovery Goals C. Preparing a Deposition Schedule 4:10 Goals 4:11 Sources for Deponents 4:12 Number of Depositions 4:13 Order of Depositions 4:14 Scheduling Issues 4:14.1 Estimate the Length of Each Deposition 4:14.2 Create a Specific Schedule 4:15 Practice Tips D. Docket Internal Discovery Schedule 4:16 Purpose 4:17 Timing When to Create the Schedule 4:18 How to Prepare the Schedule 4:19 Strategic Issues 4:20 Sample Order of Discovery Devices E. Prepare Final Phase Discovery Plan 4:21 Importance of a Final Phase Plan 4:22 Timing 4:23 Prepare Final Phase Discovery Plan 4:24 Consider Admissibility 4:25 Practice Tips [ 4:26-4:29 Reserved] II. INFORMAL DISCOVERY 4:30 When Authorized and Used 4:31 Timing 4:32 Procedure 4:33 Practice Tips [ 4:34-4:39 Reserved]

10 Preparing for Trial in Federal Court F-10 III. GOVERNMENT RECORDS 4:40 Authority 4:41 When to Obtain Government Records 4:42 Procedure 4:42.1 Determine Your Needs 4:42.2 How to Obtain Records 4:42.3 Obtaining Records Under FOIA or a State Records Law 4:43 Challenging FOIA Decision 4:44 Practice Tips [ 4:45-4:49 Reserved] IV. FORMAL WRITTEN DISCOVERY A. Interrogatories 4:50 General Rules and Requirements 4:51 Timing 4:52 Procedure for Drafting and Serving Interrogatories 4:53 Procedure for Responding to Interrogatories 4:54 Practice Tips B. Requests to Produce and/or Inspect 4:55 Purpose of Rule 34 4:56 Preventing Spoliation 4:57 Timing 4:58 Procedure for Making Requests 4:59 Procedure for Responding and Objecting 4:60 Practice Tips C. Requests for Admission 4:61 Rules and Requirements 4:62 Timing 4:63 Procedure for Drafting and Serving Requests for Admission 4:64 Procedure for Objecting and Responding to Requests for Admission 4:65 Practice Tips [ 4:66-4:69 Reserved] V. NONPARTY SUBPOENAS FOR RECORDS AND INFORMATION 4:70 Purpose and Effect of Subpoenas 4:71 When to Issue a Subpoena 4:72 Procedures 4:72.1 Procedure for Obtaining Records from a Nonparty 4:72.2 Procedure for Issuing the Subpoena 4:72.3 Serving the Subpoena 4:72.4 Quashing the Subpoena 4:73 Challenging a Subpoena 4:73.1 Mechanisms 4:73.2 When to Challenge a Subpoena 4:73.3 Procedure 4:73.4 Determining Whether to Object 4:74 Enforcing a Subpoena 4:74.1 Subpoena to a Foreign Entity 4:74.2 When to Enforce a Subpoena 4:74.3 Procedure 4:75 Producing and Inspecting Nonparty Documents Pursuant to Subpoena 4:75.1 Deadlines for Producing Documents 4:75.2 Procedure for Producing Documents 4:75.3 Obligations of Requesting Party 4:75.4 Protecting the Nonparty

11 F-11 Table of Contents [ 4:76-4:79 Reserved] VI. REQUESTS FOR PHYSICAL AND MENTAL EXAMINATIONS 4:80 Rules Governing Examinations 4:81 Timing 4:82 Procedure for Requesting and Obtaining an Examination 4:83 Procedure for Responding to Attempt to Examine Client [ 4:84 Reserved] VII. DEPOSITIONS A. Deposition Basics 4:85 Types of Depositions 4:86 Limits 4:87 Deposing Individuals 4:88 Deposing Entities 4:89 Timing 4:90 Procedure for Issuing the Notice 4:91 Strategic Issues Related to the Notice B. Preparing for Depositions 4:92 Importance of Depositions 4:93 When to Prepare 4:94 How to Prepare 4:95 Strategic Considerations C. Videotaped Depositions 4:96 Factors Influencing Decision to Take a Videotaped Deposition 4:97 Timing 4:98 Procedure D. Telephone and Remote Video Depositions 4:99 Rules Applicable to Remote Depositions 4:100 Advantages and Disadvantages 4:101 Timing 4:102 Procedure for Arranging a Remote Deposition 4:103 Strategic Issues and Helpful Tips E. The 30(b)(6) Deposition 4:104 Governing Rules 4:105 Considerations of the Parties 4:106 Benefits of a 30(b)(6) Deposition 4:107 Timing 4:108 Procedure 4:109 Tips and Strategy F. The Perpetuation Deposition G. Depositions on Written Questions H. Defending Depositions 4:110 Preparing Client or Witness for a Deposition 4:110.1 Importance of Preparation 4:110.2 Timing of Preparation 4:110.3 Procedure 4:110.4 Tips and Strategy 4:111 Defending Your Case and Client During the Deposition 4:111.1 The Attorney s Job at the Deposition 4:111.2 Procedure for Defending a Deposition 4:111.3 Tips and Strategy [ 4:112-4:114 Reserved]

12 Preparing for Trial in Federal Court F-12 VIII. OBJECTING TO DISCOVERY A. Objecting to Written Discovery 4:115 General Rule 4:116 Timing 4:117 Grounds for Objecting 4:117.1 Common Objections 4:117.2 Work Product Immunity 4:117.3 Privilege 4:118 Procedure for Objecting 4:119 Tips and Strategy B. Objecting to Depositions 4:120 General Rules 4:121 Timing 4:122 Grounds for Objecting to Depositions 4:123 Procedure 4:124 Tips and Strategy IX. DISCOVERY MOTIONS A. Meet and Confer 4:125 The Requirement and Its Purpose 4:126 Timing 4:127 Procedure 4:128 Tips and Strategy B. Extend or Shorten Time to Respond to Discovery 4:129 Motions to Extend Discovery 4:129.1 Timing 4:129.2 Procedure 4:129.3 Tips and Strategy 4:130 Motion to Shorten Time for Discovery Responses 4:130.1 When Necessary 4:130.2 Timing 4:130.3 Procedure C. Protective Orders 4:131 Stipulated Protective Orders 4:131.1 When to Seek a Stipulation 4:131.2 Procedure for Obtaining a Stipulated Protective Order 4:131.3 Tips and Strategy 4:132 Motions for Protective Orders 4:132.1 Strategic Reasons to Seek Protective Order 4:132.2 Grounds for Limiting Discovery 4:132.3 Scope of Protective Order 4:132.4 Timing 4:132.5 Procedure 4:132.6 Tips and Strategy D. Motions to Compel 4:133 Purpose and Scope of Motion to Compel 4:134 Timing 4:135 Procedure 4:136 Tips and Strategy

13 F-13 Table of Contents E. Discovery Sanctions 4:137 Purpose 4:138 Types of Sanctions 4:139 Whom the Court May Sanction 4:140 Timing 4:141 Procedure 4:142 Tips and Strategy [ 4:143-4:144 Reserved] X. SUPPLEMENTING DISCLOSURES AND DISCOVERY RESPONSES 4:145 General Rules Imposing the Obligation to Supplement 4:146 Timing 4:147 Procedure for Supplementing 4:148 Tips and Strategy FORMS 4-01 Freedom of Information Act Letter 4-02 State Public Records Request Letter 4-03 State Public Records Request Form 4-04 Interrogatories 4-05 Responses and Objections to Interrogatories 4-06 Interrogatories and Requests for Production to Employer 4-07 Responses and Objections to Interrogatories and Requests for Production from Employer 4-08 Requests for Production of Documents 4-09 Plaintiff s Request for Production of Documents Propounded to Defendant Product Liability Case 4-10 Requests for Admission 4-11 Responses to Requests for Admission 4-12 Memorandum in Support of Motion to Withdraw Admissions 4-13 Subpoena to Testify at a Deposition in a Civil Action 4-14 Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action 4-15 Responses and Objections to Subpoena 4-16 Motion to Quash (or Modify) Deposition Subpoena 4-17 Notice of Physical or Mental Examination 4-18 Notice of Deposition 4-19 Deposition Preparation Checklist 4-20 Deposition Outline 4-21 Notice of Deposition Pursuant to Rule 30(b)(6) 4-22 Notice of Deposition Pursuant to Rule 30(b)(6) (Alternate) 4-23 Motion for Protective Order to Quash 30(b)(6) Notice 4-24 Witness Briefing Checklist 4-25 Meet and Confer Letter 4-26 Meet and Confer Confirming Letter 4-27 Motion to Reopen or Extend Discovery 4-28 Stipulation for Protective Order 4-29 Declaration and Certification of Records Custodian 4-30 Education Records Release 4-31 Employment Records Release 4-32 Copy Instructions to Staff for Document Production

14 Chapter 5 Preparing for Trial in Federal Court F-14 ELECTRONIC DISCOVERY I. BASIC PRINCIPLES AND CLIENT RELATIONS ISSUES 5:01 Background 5:02 Differences Between Electronic Discovery and Traditional Discovery 5:03 Technology That Has Created Electronically-Stored Data 5:04 Location of Electronically-Stored Information 5:05 The Client Relations Problem [ 5:06-5:09 Reserved] II. GENERAL RULES A. The 2000 Rule Amendments B. The 2006 Rule Amendments 5:10 Significant Rule Changes 5:11 Limitations on Discovery: FRCP 26(b)(2) 5:11.1 Protections from Burdensome Productions 5:11.2 Cost-Shifting 5:12 Obligations to Address E-Discovery and Disclose Electronic Information Early 5:13 Protecting Privilege and Work Product 5:14 Protecting Information Held by Third Parties 5:15 Rules Regarding Specific Discovery Mechanisms 5:16 Sanctions for Routine Overwriting [ 5:17-5:19 Reserved] III. PRESERVING EVIDENCE 5:20 The Duty to Preserve 5:21 Triggering the Duty to Preserve [ 5:22-5:24 Reserved] IV. STEPS IN THE E-DISCOVERY PROCESS A. Summary B. Detailed Procedure and Timing Issues 5:25 Preserve Early Before Evidence Is Destroyed 5:26 Plan and Prepare for Formal Electronic Discovery 5:27 The Scheduling Report 5:28 Formal Discovery C. Tips and Strategy 5:29 Devote Time to E-Discovery Issues 5:30 Expand Notice Pleading to Ensure Broad Scope of Discovery 5:31 Take Advantage of Rule 26(f) Conference 5:32 Depositions 5:33 Propose a Reasonable Cost-Shifting Plan 5:34 Make Electronic Information Preservation Demand as Part of Settlement Effort 5:35 Include Home Computers and Laptops Within Scope of Request 5:36 Establish Document Retention/Destruction Policies 5:37 Retain Computer Expert 5:38 Conduct Discovery of to Consultants 5:39 Obtain Client Approval for Post-Production Claim of Privilege or Work Product 5:40 Lay Foundation for Admission at Trial FORM 5-01 Preservation Demand Letter Electronically-Stored Information 5-02 Agreed E-Discovery Protocol

15 F-15 Table of Contents Chapter 6 EXPERTS I. RETAINING EXPERTS A. Determine the Need to Retain Testifying Experts 6:01 Timing 6:02 Procedure 6:03 Tips and Strategy B. Retain Consultants and Testifying Experts 6:04 Purpose and Designation 6:05 Timing 6:06 Procedure for Deciding Which Expert to Hire 6:07 Retain the Consultant 6:08 Tips and Strategy [ 6:09 Reserved] II. WORKING WITH EXPERTS 6:10 Timing 6:11 Procedure for Working With Experts 6:12 Tips and Strategy [ 6:13-6:14 Reserved] III. IDENTIFY EXPERTS AND DISCLOSE REPORTS 6:15 Requirements 6:15.1 Testifying Experts 6:15.2 Consulting Experts 6:15.3 Duty to Supplement 6:16 Timing 6:17 Procedure for Disclosing Experts 6:18 Tips and Strategy [ 6:19 Reserved] IV. EXPERT DEPOSITIONS A. Preparing Experts for Deposition 6:20 Purpose 6:21 Timing 6:22 Procedure 6:23 Tips and Strategy B. Deposing Experts 6:24 Availability 6:25 Payment 6:26 Timing 6:27 Procedure for Arranging the Deposition 6:28 Deposing Treating Health Care Providers 6:29 Deposing Non-Testifying Experts 6:30 Questions to Ask at Expert s Deposition 6:31 Asking Hypothetical Questions 6:32 Tips and Strategy [ 6:33-6:39 Reserved] C. Defending Expert Depositions

16 Preparing for Trial in Federal Court F-16 V. ADVANCED EXPERT DISCOVERY STRATEGY 6:40 Rule 26 Disclosures Are Limited and Insufficient 6:41 Additional Issues Regarding the Disclosures by Experts 6:42 Additional Reasons to Depose Experts 6:43 Issues Related to Document Discovery 6:43.1 Using Rule 34 to Obtain Documents 6:43.2 Payment Issues 6:44 Issues Related to Non-Testifying Experts 6:45 Employee Experts 6:46 Timing Issues 6:47 Tips and Strategy [ 6:48-6:49 Reserved] VI. PREPARE EXPERTS TO TESTIFY DURING TRIAL VII. MOTIONS TO CHALLENGE EXPERTS 6:50 Expert Requirements 6:51 Timing Issues Related to Challenges 6:52 Procedures for Challenging Experts 6:52.1 Options 6:52.2 Minimum Requirements for Admissibility of Expert Testimony 6:52.3 Qualifications as an Expert 6:52.4 Proposed Expert Testimony Must Assist the Trier of Fact 6:52.5 Three Factors for Testing Reliability 6:52.6 Daubert Checklist for Testing Reliability 6:52.7 Post-Daubert Useful Tests to Challenge Experts 6:53 Tips and Strategy [ 6:54 Reserved] VIII. SUPPLEMENT EXPERT DISCOVERY 6:55 Requirements 6:56 Timing 6:57 Procedure 6:58 Tips and Strategy FORMS 6-01 Motion in Limine of Defendants to Exclude Testimony of Plaintiffs Expert 6-02 Memorandum in Support of Motion in Limine of Defendants to Exclude Testimony of Plaintiffs Expert 6-03 Rebuttal Memorandum of Defendants in Support of Motion in Limine to Exclude Testimony of Plaintiffs Expert 6-04 Motion to Strike Affidavit of Expert and Motion in Limine 6-05 Memorandum Brief in Support of Motion to Strike Affidavit of Expert and Motion in Limine 6-06 Expert s Written Report 6-07 Expert s Written Report 6-08 Rule 26 Expert Report Breach of Contract, Real Estate 6-09 Expert Witness Disclosure 6-10 Requests for Production of Documents 6-11 Expert Witness Deposition Checklist 6-12 Deposition Outline for Expert Daubert Issues 6-13 Defendant s Motion to Strike Plaintiff s Experts 6-14 Motion to Extend Deadline to Designate Expert

17 F-17 Table of Contents 6-15 Motion in Limine to Exclude Expert Testimony 6-16 Motion in Limine to Exclude Expert Testimony re Excessive Force 6-17 Expert Retention Letter Chapter 7 MOTIONS I. BASIC PRINCIPLES 7:01 Timing 7:02 Types of Motions 7:03 Procedure for Motions 7:04 Moving Papers 7:05 Ex Parte Applications 7:05.1 Timing 7:05.2 Procedure 7:06 Tips and Strategy [ 7:07-7:09 Reserved] II. MOTIONS FOR RESTRAINING ORDERS AND INJUNCTIONS A. Temporary Restraining Orders 7:10 Purpose 7:11 Timing 7:12 Procedure for Obtaining a TRO 7:13 Procedure for Responding to a TRO Application 7:14 Requirements 7:15 The Bond or Security 7:16 Tips and Strategy B. Injunctions 7:17 Purpose and Requirements 7:18 Three Levels of Injunctive Relief 7:19 Reasons to Seek Injunctive Relief 7:20 Risks in Seeking Injunctive Relief 7:21 Timing 7:22 Standards for Granting Preliminary Injunctive Relief 7:23 Procedure to Obtain a Preliminary Injunction 7:24 Documents and Evidence Supporting Requests for Injunctive Relief 7:24.1 The Declarations (and Affidavit) and Other Evidence 7:24.2 The Memorandum of Points and Authorities 7:24.3 The Proposed Order 7:25 The Bond or Security 7:26 Opposing an Application for a Preliminary Injunction 7:27 Tips and Strategy [ 7:28-7:29 Reserved] III. MOTIONS TO AMEND PLEADINGS IV. MOTIONS TO DISQUALIFY JUDGE 7:30 Purpose 7:31 Timing 7:32 Procedure 7:33 Tips and Strategy [ 7:34 Reserved]

18 Preparing for Trial in Federal Court F-18 V. MOTIONS TO INTERVENE 7:35 Purpose 7:36 Timing 7:37 Procedure 7:38 Tips and Strategy [ 7:39 Reserved] VI. MOTIONS TO SEVER 7:40 Purpose and Requirements 7:41 Timing 7:42 Procedure 7:43 Tips and Strategy [ 7:44 Reserved] VII. MOTIONS TO BIFURCATE 7:45 Purpose and Governing Rules 7:46 Timing 7:47 Procedure for Requesting Separate Trials 7:48 Procedure for Opposing Separate Trials 7:49 Tips and Strategy VIII. MOTIONS TO CONSOLIDATE 7:50 Purpose 7:51 Timing 7:52 Procedure for a Motion to Consolidate 7:53 Procedure for Opposing a Motion to Consolidate 7:54 Tips and Strategy IX. MOTIONS TO TRANSFER VENUE 7:55 Purpose and Availability 7:56 Timing 7:57 Procedure for Seeking a Transfer of Venue 7:58 Factors Courts Analyze When Considering Transfer 7:59 Conditions the Court May Impose on a Transfer to a Foreign Court 7:60 Opposing a Motion to Transfer Venue 7:61 Dismissal Based on Forum Non Conveniens 7:62 Tips and Strategy [ 7:63-7:64 Reserved] X. MOTIONS TO AMEND SCHEDULING ORDER 7:65 Purpose and Availability of Motion 7:66 Timing 7:67 Procedure 7:68 Tips and Strategy [ 7:69 Reserved] XI. MOTIONS RELATED TO DISCOVERY XII. MOTIONS FOR JUDGMENT ON THE PLEADINGS 7:70 The Standard 7:71 Timing [ 7:72-7:74 Reserved] XIII. MOTIONS TO DISMISS A. Motions to Dismiss Claims or Parties 7:75 Purpose 7:76 Timing 7:77 Procedure

19 F-19 Table of Contents B. Motions to Dismiss for Failure to State a Claim Pursuant to FRCP 12(b)(6) 7:78 The Standard 7:79 Timing 7:80 Impact of Twombly/Iqbal and the Plausibility Standard for Complaints 7:81 Tips and Strategy C. Motions for Voluntary Dismissal 7:82 Purpose and Availability 7:83 Timing 7:84 Procedure 7:85 Tips and Strategy D. Motions to Dismiss for Failure to Prosecute 7:86 Purpose and Availability 7:87 Timing 7:88 Procedure for Bringing a Motion to Dismiss 7:89 Procedure for Opposing a Motion to Dismiss 7:90 Tips and Strategy [ 7:91-7:94 Reserved] XIV. MOTIONS FOR SUMMARY JUDGMENT A. Moving for Summary Judgment 7:95 Summary Judgment Standard and Requirements 7:96 Timing 7:97 Procedure 7:98 Affidavits and Declarations in Support of Summary Judgment 7:99 Affidavits of Expert Witnesses 7:100 Tips and Strategy B. Opposing Summary Judgment 7:101 Purpose 7:102 Timing 7:103 Basis for Opposition 7:104 Tips and Strategy XV. MOTIONS TO CHANGE TRIAL DATE A. Motions to Expedite the Trial 7:105 Purpose 7:106 Timing 7:107 Procedure 7:108 Opposing the Motion to Expedite Trial 7:109 Tips and Strategy B. Motion for a Trial Continuance 7:110 Purpose and Grounds 7:111 Timing 7:112 Procedure for Obtaining a Continuance 7:113 Procedure for Opposing a Continuance 7:114 Tips and Strategy XVI. MOTIONS TO STAY 7:115 Basic Principles 7:115.1 Grounds 7:115.2 Examples of Circumstances Under Which Stays Are Used 7:115.3 Timing 7:115.4 Procedure 7:115.5 Strategy for Opposing Stay

20 Preparing for Trial in Federal Court F-20 7:116 Motion to Stay Federal Court Action Based on Abstention Doctrine 7:117 Motion to Stay Federal Action Pending Administrative Determination 7:118 Motion for Stay of Litigation Pending Arbitration 7:119 Motion for Stay of a Preliminary Injunction 7:120 Motion to Stay Discovery 7:121 Special Motions for Stay That Are Expressly Authorized Under the FRCP [ 7:122-7:124 Reserved] XVII. MOTIONS IN LIMINE A. Motions to Strike Undisclosed Evidence 7:125 Timing 7:126 Determining If Moving to Strike Is in Your Client s Best Interest 7:127 Tips and Strategy B. Governing Rules and Principles Related to Motions in Limine 7:128 Purpose 7:129 Timing 7:130 Benefits of a Motion in Limine 7:131 Court Response 7:132 Effect 7:133 Procedure for Making a Motion in Limine 7:134 Procedure for Opposing a Motion in Limine 7:135 Tips and Strategy C. Motion to Exclude Evidence Because Prejudice Outweighs Relevance (FRE 403) 7:136 The Standard 7:137 Timing 7:138 Arguments That Support a 403 Motion 7:139 Examples of Unfairly Prejudicial Evidence 7:140 Cumulative Evidence D. Motion to Exclude Inadmissible Character Evidence/Prior Bad Acts 7:141 Governing Rules and Standards 7:142 Timing 7:143 Procedure E. Motion to Exclude Due to Alteration/Spoliation 7:144 Governing Principles 7:145 Timing 7:146 Procedure 7:147 Spoliation Letter 7:148 Accident Reconstruction 7:149 Remedies F. Motion to Exclude Witnesses from Courtroom During Testimony 7:150 Right to Exclude Witnesses 7:151 Exceptions 7:152 Procedure 7:153 Tips and Strategy [ 7:154-7:159 Reserved] XVIII. MOTIONS TO CHALLENGE EXPERTS XIX. TRIAL AND POST-TRIAL MOTIONS A. Motion for a Mistrial 7:160 Threshold Requirement

21 F-21 Table of Contents 7:161 Specific Grounds 7:161.1 Attorney Misconduct 7:161.2 Judicial Misconduct 7:161.3 Juror Misconduct 7:161.4 Witness Misconduct 7:162 Timing 7:163 Procedure 7:164 Tips and Strategy B. Making a Motion for Judgment as a Matter of Law and/or Motion for a New Trial 7:165 Requirements 7:166 Timing 7:167 Procedure 7:168 Tips and Strategy C. Opposing a Motion for Judgment and/or Motion for a New Trial 7:169 Grounds for Opposing Motion 7:170 Timing 7:171 Procedure 7:172 Tips and Strategy [ 7:173-7:174 Reserved] XX. MOTIONS FOR RECONSIDERATION AND RELIEF FROM JUDGMENT 7:175 Options 7:176 Motions for Reconsideration 7:176.1 Standards 7:176.2 Timing 7:176.3 Examples of Motions Under FRCP 59(e) 7:177 Motions to Alter or Amend a Judgment Pursuant to FRCP 60(b) 7:177.1 Scope and Standards 7:177.2 Timing 7:178 Motions to Correct Clerical Error Pursuant to FRCP 60(a) 7:179 Motions to Amend Findings 7:180 Procedure 7:181 Tips and Strategy [ 7:182-7:184 Reserved] XXI. MOTIONS TO WITHDRAW AS COUNSEL 7:185 Limitations 7:186 Good Cause for Withdrawal 7:187 Timing 7:188 Procedure 7:189 Tips and Strategy XXII. MOTIONS FOR SANCTIONS A. Motions for Rule 11 Sanctions 7:190 Rule 11 Requirements 7:191 Factors to Determine Compliance With Rule 11 7:192 Sanctions 7:192.1 Factors Used to Determine Sanctions for Violating Rule 11 7:192.2 Scope of Sanctions Under Rule 11 7:192.3 Standards for Sanctions in Specific Circumstances 7:192.4 Types of Sanctions Available Under Rule 11

22 Preparing for Trial in Federal Court F-22 7:193 Limits of Rule 11 7:194 The Safe Harbor Provision and Timing of the Motion 7:195 Procedure for Making a Rule 11 Motion 7:196 Procedure for Responding to a Rule 11 Motion 7:197 Order for Sanctions 7:198 Tips and Strategy B. Motions for Sanctions on Other Grounds (Not Rule 11) 7:199 Authority for Sanctions 7:200 Types of Sanctions That May Be Imposed on Attorneys or Parties 7:201 Sanctions Under 28 U.S.C :202 Sanctions Under the Court s Inherent Authority 7:203 Timing 7:204 Procedure 7:205 Tips and Strategy FORMS 7-01 Notice of Motion General Form 7-02 Combined Notice of Motion and Motion General Form 7-03 Motion General Form 7-04 Memorandum of Points and Authorities General Form 7-05 Affidavit in Support of Motion for Summary Judgment 7-06 Declaration Establishing Foundation of Exhibit General Form 7-07 Proposed Order Granting Summary Judgment 7-08 Proof of Service General Form 7-09 Agreed Motion to Consolidate Cases 7-10 Application for Temporary Restraining Order Trademark Infringement 7-11 Motion for Preliminary Injunction Copyright Infringement 7-12 Ex Parte Application for Temporary Restraining Order, Writ of Possession, OSC re Injunction [Law Firm] 7-13 Motion to Dismiss: Improper Venue 7-14 Motion to Transfer Venue 7-15 Memo of Authorities in Support of Motion for Intradistrict Transfer 7-16 Motion to Dismiss Under Forum Non Coveniens Doctrine 7-17 Motion to Amend Pretrial Scheduling Order 7-18 Agreed Notice of Voluntary Dismissal of Party 7-19 Statement of Undisputed Facts in Support of Motion for Summary Judgment 7-20 Motion for Continuance of Trial Date 7-21 Motion to Vacate Trial Setting 7-22 Motion for Stay Pending Disposition of State Court Action Declaratory/Injunctive Relief 7-23 Opposition to Plaintiff s Motion to Lift Stay Parallel State Court Action 7-24 Motion to Dismiss or Stay; Motion to Stay Discovery Insurance/Declaratory Relief 7-25 Motion for Stay Pending Appeal 7-26 Motion in Limine 7-27 Rule 11 Safe Harbor Letter 7-28 Motion for Rule 11 Sanctions 7-29 Notice of Defendants Motion for Sanctions 7-30 Memorandum in Support of Motion to Dismiss Antitrust Claims 7-31 Proposed Order Granting Rule 11 Sanctions 7-32 Stipulation of Partial Dismissal 7-33 Motion for Leave to Withdraw as Counsel

23 F-23 Table of Contents 7-34 Notice of Withdrawal of Counsel 7-35 Plaintiff s Opposition to Motion in Limine Employment Case 7-36 Motion in Limine Employment Exclude Testimony as Hearsay 7-37 Notice of Motion and Motion for Summary Judgment 7-38 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 7-39 Defendant s Memorandum of Authorities in Support of Motion to Dismiss or, Alternatively, Motion for Summary Judgment 7-40 Memorandum in Support of Plaintiffs Motion for Summary Judgment on Defendants Counterclaims, or in the Alternative, for Separate Trial 7-41 Memorandum in Opposition to Motion for Summary Judgment 7-42 Motion to Dismiss Pursuant to FRCP 12(b)(6) 7-43 Opposition to Rule 11 Motion Chapter 8 SETTLEMENT AND ADR I. PREPARE FOR SETTLEMENT 8:01 Rules Applicable to Settlement Negotiations 8:02 Options for Settlement 8:03 Timing 8:04 Procedure 8:05 Tips and Strategy [ 8:06-8:09 Reserved] II. DAMAGES AND REMEDIES 8:10 Timing 8:11 Types of Damages 8:12 Calculating Damages 8:13 Tips and Strategy [ 8:14 Reserved] III. MEDIATION 8:15 Governing Principles 8:16 Advantages and Disadvantages of Mediation 8:17 Timing 8:18 Procedure 8:19 Tips and Strategy IV. ARBITRATION 8:20 Rules and Governing Principles 8:21 Timing 8:22 Advantages and Disadvantages of Arbitration 8:23 Procedure 8:24 Tips and Strategy V. NEGOTIATION 8:25 Timing 8:26 Procedure 8:27 Tips and Strategy FORMS 8-01 Mediation Statement 8-02 Demand for Arbitration After Court Order

24 Chapter 9 Preparing for Trial in Federal Court F-24 PRETRIAL PREPARATION I. REQUIRED PRETRIAL DISCLOSURES 9:01 Requirement 9:02 Timing 9:03 Procedure for Issuing Pretrial Disclosures 9:04 Procedure for Objecting to Pretrial Disclosures 9:05 Tips and Strategy [ 9:06-9:09 Reserved] II. OFFERS OF JUDGMENT 9:10 Requirements and Result 9:11 Timing 9:12 Procedure 9:13 Effect of an Offer 9:14 Tips and Strategy III. THE TRIAL PLAN 9:15 Purpose and Scope 9:16 Timing 9:17 Procedure 9:18 Tips and Strategy [ 9:19 Reserved] IV. WITNESS ISSUES A. Arrange for Witnesses to Attend Trial 9:20 Procedure 9:21 Tips and Strategy B. Prepare Witnesses to Testify 9:22 Your Client and Other Friendly Lay Witnesses 9:22.1 Purpose of Preparation 9:22.2 Timing 9:22.3 Procedure 9:22.4 Tips and Strategy 9:23 Experts 9:23.1 Timing 9:23.2 Procedure 9:23.3 Tips and Strategy [ 9:24-9:29 Reserved] V. PREPARE TO USE EVIDENCE A. Planning for Admissibility Issues 9:30 Becoming Familiar With the Rules of Evidence 9:31 Preparing to Handle Evidence Issues 9:32 Tips and Strategy B. Admissibility of Live Testimony 9:33 Lay Witnesses 9:33.1 Requirements for Admissibility 9:33.2 Timing 9:33.3 Procedure for Ensuring Admissibility 9:33.4 Tips and Strategy 9:34 Expert Witnesses 9:34.1 Requirements for Admissibility 9:34.2 Timing

25 F-25 Table of Contents 9:34.3 Procedure for Ensuring Admissibility 9:34.4 Tips and Strategy C. Illustrative (and Demonstrative) Evidence 9:35 Types of Evidence 9:36 When to Prepare Illustrative Exhibits 9:37 Procedure for Creating and Using an Illustrative Exhibit 9:37.1 Preparing to Use the Exhibits 9:37.2 Introducing Illustrative Exhibits at Trial 9:37.3 How to Lay a Foundation for an Illustrative Exhibit 9:38 Tips and Strategy D. Real Evidence 9:39 Requirements for Using Real Evidence 9:40 Timing 9:41 Procedure for Admitting Real Evidence at Trial 9:42 Tips and Strategy E. Business Records 9:43 Requirements for Using Business Records 9:44 Timing 9:45 Procedure for Admitting Business Records at Trial 9:46 Tips and Strategy F. Public Records 9:47 Requirements for Using Public Records 9:48 Timing 9:49 Procedure for Admitting Public Records at Trial 9:50 Tips and Strategy G. Discovery Responses 9:51 Depositions and Other Records of Testimony 9:51.1 When Deposition Testimony Can Be Used at Trial 9:51.2 Timing 9:51.3 Procedure for Using Deposition at Trial 9:51.4 Tips and Strategy 9:52 Responses to Requests for Admission 9:52.1 When Requests for Admission Can Be Used at Trial 9:52.2 Timing 9:52.3 Procedure for Admitting Requests for Admission at Trial 9:52.4 Tips and Strategy 9:53 Interrogatory Responses 9:53.1 When Interrogatory Responses Can Be Used at Trial 9:53.2 Timing 9:53.3 Procedure for Admitting Interrogatory Responses at Trial 9:53.4 Tips and Strategy H. Learned Treatises 9:54 Requirements for Using a Learned Treatise at Trial 9:55 Timing 9:56 Procedure for Using a Learned Treatise at Trial 9:57 Tips and Strategy I. Judicial Notice 9:58 Requirements 9:59 Timing 9:60 Procedure for Obtaining Judicial Notice 9:61 Tips and Strategy [ 9:62-9:64 Reserved]

26 VI. FINAL PRETRIAL CONFERENCE 9:65 Purpose of Conference 9:66 Scope of Conference 9:67 Timing 9:68 Procedure 9:69 Tips and Strategy VII. FINAL PRETRIAL STIPULATION AND ORDER 9:70 Purpose and Effect 9:71 Scope 9:72 Timing 9:73 Procedure 9:74 Tips and Strategy FORMS 9-01 Defendant s Pretrial Statement 9-02 Offer of Judgment 9-03 Offer of Judgment With Fees 9-04 Trial Plan (Partial) 9-05 Subpoena in a Civil Case 9-06 Deposition Designations 9-07 Stipulation to Use Deposition at Trial 9-08 Motion to Use Deposition at Trial 9-09 Request for Judicial Notice 9-10 Agreed Final Judgment of Dismissal With Prejudice Chapter 10 Preparing for Trial in Federal Court F-26 JURY ISSUES I. CHOOSING AND DEMANDING A JURY 10:01 The Right to a Jury 10:02 The Decision to Demand a Jury 10:03 Converting a Jury Trial to a Bench Trial 10:04 Juries on Less than All Issues and Advisory Juries 10:05 Procedure for Selecting a Bench Trial on Certain Issues 10:06 Tips and Strategy [ 10:07-10:09 Reserved] II. FEDERAL RULES GOVERNING FOCUS GROUPS A. Jury Consultants 10:10 Benefits 10:11 Timing 10:12 Hiring a Jury Consultant 10:13 Deciding Which Services You Want Consultant to Provide 10:14 Tips and Strategy B. Mock Juries and Focus Groups 10:15 Benefits 10:16 Timing 10:17 Procedure for Mock Juries and Focus Groups 10:17.1 Deciding Whether to Use a Mock Jury or Focus Group 10:17.2 Assembling the Mock Jury or Focus Group 10:17.3 Preparing for the Mock Jury or Focus Group 10:17.4 Conducting the Mock Jury or Focus Group 10:18 Tips and Strategy [ 10:19 Reserved]

27 F-27 Table of Contents III. JURY INSTRUCTIONS AND VERDICT FORM 10:20 Requirement 10:21 Timing 10:22 Procedure 10:23 Tips and Strategy [ 10:24 Reserved] IV. JURY SELECTION A. Prepare for Jury Selection 10:25 Challenges for Cause 10:26 Peremptory Challenges 10:27 Timing 10:28 Procedure 10:29 Investigating Potential Jurors 10:30 Tips and Strategy B. Voir Dire 10:31 General Principles About Voir Dire 10:32 Timing 10:33 Procedure 10:34 Tips and Strategy C. The Jury Questionnaire 10:35 Purpose and Usefulness 10:36 Timing 10:37 Procedure 10:38 Tips and Strategy FORMS Plaintiff s Proposed Special Verdict Form Defendant s Proposed Special Verdict Form Jury Instructions Model Jury Instructions Mitigation Model Jury Instructions Compensatory Damages; Lost Profits Notice of Objection to Plaintiff s Jury Instructions Plaintiff s Proposed Voir Dire Juror Questionnaire Chapter 11 FINAL TRIAL PREPARATION I. THE TRIAL NOTEBOOK 11:01 Purpose and Contents 11:02 Timing 11:03 Procedure for Creating a Trial Notebook 11:04 Tips II. THE TRIAL BRIEF 11:05 Purpose 11:06 Timing 11:07 Procedure 11:08 Tips and Strategy [ 11:09 Reserved] III. FINDINGS OF FACT/CONCLUSIONS OF LAW 11:10 Requirement 11:11 Timing

28 11:12 Procedure 11:13 Tips and Strategy [ 11:14 Reserved] IV. OPENING STATEMENT 11:15 Purpose and Scope 11:16 Timing 11:17 Procedure 11:18 Tips and Strategy [ 11:19 Reserved] V. DIRECT EXAMINATIONS 11:20 Purpose 11:21 Timing 11:22 Procedure 11:23 Tips and Strategy [ 11:24 Reserved] VI. CROSS-EXAMINATIONS 11:25 Purpose 11:26 Timing 11:27 Procedure 11:28 Tips and Strategy [ 11:29 Reserved] VII. EXPERT EXAMINATIONS 11:30 Purpose 11:31 Timing 11:32 Procedure for Direct Examination of Your Expert 11:33 Procedure for Cross-Examination of an Opponent s Expert 11:34 Tips and Strategy VIII. CLOSING ARGUMENT 11:35 Purpose 11:36 Timing 11:37 Procedure 11:38 Tips and Strategy FORMS Trial Notebook Contents Sample Format of Defendant s Trial Brief (Civil Rights Violation) Bench Brief Employment Cat s Paw Theory Bench Brief Admissibility of Statements as Admissions of Party Opponent Bench Brief re Compensatory Damages Chapter 12 Preparing for Trial in Federal Court F-28 APPEAL ISSUES I. SEEKING REVIEW OF INTERLOCUTORY ORDERS 12:01 Availability 12:01.1 General Rule: Appeal Not Permitted Unless Final Order Entered 12:01.2 Appeal of Partial Final Order 12:01.3 Discretionary Interlocutory Appeals 12:01.4 The Collateral Order Doctrine 12:02 Tips and Strategy [ 12:03-12:04 Reserved]

29 F-29 Table of Contents II. PRESERVING AND MAKING A RECORD FOR APPEAL 12:05 The Right to Appeal 12:06 Preserving Appeal With Pretrial Motions 12:06.1 Application 12:06.2 Timing 12:06.3 Practice Tip 12:07 Preserving Evidentiary Objections for Appeal 12:07.1 Requirement 12:07.2 Timing 12:07.3 Procedure 12:07.4 Practice Tip 12:08 Preserving Objections Related to Jury Instructions 12:08.1 Requirement 12:08.2 Timing 12:08.3 Procedure 12:08.4 Tips and Strategy FORMS Motion for Final Judgment Pursuant to Rule 54(b) Opposition to Motion for Final Judgment Pursuant to Rule 54(b) Notice of Appeal Table of Statutes Table of Cases Index

30 Preparing for Trial in Federal Court F-30 (This page intentionally left blank.)