Reading legal citations

Today’s post generously reprinted with permission from

Sacramento County Public Law Library:

Any reference to any primary law source – case or statute – has a citation. The basic format of a citation is standardized, and generally includes a volume number, an abbreviation of the title of the publication in which the law appears, a page or section number, and a date.

CASES

Court cases are often published by more than one publisher, so there can be more than one citation appearing after the name of the case. Usually the first citation given is to the official reports for a particular court, and is called the “official citation.”  The official reports are printed by the publisher with which that court has contracted to distribute its cases.

In California [for example] the official reports of California Supreme Court cases are published in the California Reports (1^st – 4^th series) and the official reports of Courts of Appeal cases are published in the California Appellate Reports (1^st – 4^th series).

The other citations given in a string are known as “unofficial” or “parallel” citations.  The text of the opinion is the same in all sources, whether they are “official” or “unofficial.”

SUPREME COURT

Court of Appeals

California Supreme Court cases have two parallel citations.  The first is to the Pacific Reporter, and the second is to the California Reporter, which started in 1959.  Court of Appeals cases have only one parallel citation, to the California Reporter.

STATUTES OR CODES

The terms “statute” and “code” are often used interchangeably.  There are two publishers of the California Codes:  West and Deering’s. The wording of the Codes is identical in either publication; the only difference is in the annotations that follow each section.

The following are examples of citations for California and United States Codes:

List of California Statutory Abbreviations

List of Common Abbreviations in Law

Generously reprinted with permission from the

Sacramento County Public Law Library

Sami K. Hartsfield, ACP is a consumer law paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She is also WestlawNext certified. Sami has worked as a law firm Webmaster, law firm social media marketer, and a ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

http://www.linkedin.com/in/samihartsfield

 

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Discovery quick tips

Discovery Quick Tips – Conducting a Successful Exchange of Information With the Other Side guest author: Sami K. Hartsfield, ACP Generously reprinted with permission by the Institute for Paralegal Education (IPE). This article came from the IPE monthly newsletter and you can subscribe by contacting them at ipefeedback@nbi-sems.com.

There are five basic formal discovery devices: interrogatories; requests for disclosure; requests for admissions; requests for production; and depositions; plus many more informal discovery devices. Following are my quick tips to get you started on a successful exchange of information with the other side: Work Up the File Before Formulating Your Discovery Plan.   This means conducting or studying the intake questionnaire and the Complaint/Answer. Formulate a discovery plan based on the facts and allegations contained in the Complaint and/or defenses raised in the Answer. Read the Complaint Carefully to See What Elements Need to be Proven or Disproven.   Make a list of these elements as a go-by as far as what type of information you will need in order to prove or disprove a claim(s). For example, in contract and commercial cases, the issues raised in the complaint are often decided by records, documents, and substantive law. Making a list of the elements necessary provides a blueprint of the type of information you will need to collect. Ensure You Use a Reliable Calendaring System   Sometimes rights or privileges can be waived if not completed or answered on time, and sanctions, while rare, may apply. Always remember that if a date changes, it likely needs to be changed several months ahead. Do not count the day of receipt, but do count every day, including intermediate Saturdays, Sundays, and legal holidays. Fed. R. Civ. P. 6. Under the Federal Rules, Attorneys for the Parties to a Lawsuit Must Meet for a Scheduling Conference After Service of the Complaint to Plan for Discovery Deadlines.   The parties will need to agree on this discovery plan, and submit the proposed plan to the court. The judge must issue the scheduling order within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared. Fed. R. Civ. P. 16(b)(2). Complete as Much Informal Discovery as Possible Prior to Embarking on Formal Discovery.   This can include – depending on what type of case you are working on – procuring and analyzing police reports, accident reports, insurance claims, FOIA requests, employment, and academic histories, amongst others. Google is Your Friend.   Embrace this simple yet powerful tool. Research opposing counsel (OPC), a plaintiff or defendant, witnesses, and experts this way first. If You Need to Conduct Legal Research, Try Google Scholar for FREE   Go to http://scholar.google.com/ and click the bubble titled “Legal opinions and journals.” You will be amazed how much information can be retrieved here, including full case opinions and law journal articles, treatment history, and a list of cases citing to your case on point. Get Rid of Metadata (i.e. data about the data) by Converting All Word or WP documents Into PDF or Other Imaging Documents Before Sharing by Electronic Means With Opposing Counsel (OPC).   This prevents OPC or anyone else you don’t want to see your changes or edits from seeing them in an electronic or emailed document. Just because you cannot see metadata does not mean it’s been adequately erased. If possible, save the Word document as a PDF rather than scanning a hard copy to cut down on file size. Interview Your Client in Depth, All of Your Witnesses, and Any Possible OPC Witnesses That Will Speak With You, Along With any Disinterested Witnesses.   Memorialize the interviews on some type of medium, such as on tape, in order to nail down witnesses to their statements. It is important to talk to these folks as soon as possible while the information is still fresh in their minds, or before they have reservations about speaking to you. Many times, witnesses reluctant to talk to an attorney will have no problem speaking to a paralegal. You can – and must – identity yourself as a paralegal, but often this will work to your advantage, so utilize that title for the client’s benefit. Sometimes It’s Best to Play Dumb When Interviewing Witnesses.   Now is not the time to dazzle with your vast array of knowledge about the case. The same folks that are hesitant to share information with attorneys likely do not appreciate a condescending tone or intimidating manner. Most people want to be helpful. Let the witness do most of the talking. If Applicable, Be Certain to Send Out Authorization Forms to OPC for medical records (ensure the form is HIPAA compliant!), tax, Social Security, employment, Department of Labor, and military records with initial discovery requests. Summarize the Records Received if That is Part of Your Job Duties, or Read Through the Summaries Your Colleagues Have Completed.   Highlight those bits of information likely to prove or disprove your case. Streamline by eliminating “clutter” information, or those data chunks that are superfluous to the issues at hand. Investigate the OPC’s Client, OPC, OPC’s Witnesses, and Yes, Your Own Attorney’s Client Via Paid Site Like www.publicdata.com or www.accurint.com, and Don’t Forget to Search Free Sites Like Facebook, Twitter, and LinkedIn.   Much publicly available information is posted on social media sites. The OPC likely advised her client to remove online personal data, but often you will find that, for whatever reason, folks don’t always heed their counsel’s advice. (It is unethical to friend somebody for purposes of mining personal information, but anything posted publicly is freely available for you to use.) One of My Favorite FREE Resources to Facilitate Discovery is Craig Ball’s Awesome Web-Site With Tons of Informal Discovery Information and Links at Craig Ball’s “Sampler of Informal Discovery Links.”   Craig Ball is a well-known board-certified attorney and certified computer forensic examiner based in Austin, Texas, but writes about a wide variety of discovery-related topics that apply anywhere, including extensive information about eDiscovery. You can visit his web-page here. Familiarize Yourself With the Discovery Rules Under the Federal Rules of Civil Procedure.   Most states’ discovery rules are the same as, or very similar to, the federal rules. My Favorite FREE Site for the FRCP, federal codified statutes, links to state statutes, and even a FREE online legal dictionary and encyclopedia is Cornell University Law School’s Legal Information Institute (LII) located on the Web at http://www.law.cornell.edu/. Annual December 1 Updates to Federal Rules are available at http://www.law.cornell.edu/rules/?q=rules.

Sami K. Hartsfield, ACP, is a freelance paralegal and writer in Houston, Texas. She conducts medical, legal and factual research, investigations, and client interviews. Ms. Hartsfield prepares all manner of legal documents, including pleadings, witness lists and exhibits, trial notebooks, demand and settlement documents, and deposition schedules and summaries. She also coordinates and manages document production, locates and interviews witnesses and experts, and organizes pleading and trial exhibits. Ms. Hartsfield assists lawyers at trial, gathers and reviews medical records, and maintains general client contact. She recently worked as a Webmaster for a personal injury law firm in the Houston area, and started their social media marketing efforts. Ms. Hartsfield earned her AAS degree from the Center for Advanced Legal Studies and will graduate with a B.S. degree, summa cum laude, from the University of Houston Downtown later this year. She is a member of the National Association of Legal Assistants, the American Association of Notaries, and the Electric Data Extraction Network. You can find Sami’s blog on the Web at LegallyBlog. Institute for Paralegal Education • 1218 McCann Drive • Altoona, WI 54720 • © 2011, Institute for Paralegal Education, a division of NBI, Inc. All Rights Reserved.

If interested, please see my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

NOTE: I am not an attorney. This foregoing is not to be considered legal advice. If you need legal advice, consider hiring an attorney licensed to practice law in your state.

You can find Sami on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

http://www.linkedin.com/in/samihartsfield

 

LegallyBlog® on Facebook

Copyright 2012 Sami K. Hartsfield – All Rights Reserved

Discovery top ten fundamentals

Discovery Fundamentals Top Ten guest author: Sami K. Hartsfield, ACP Generously reprinted with permission by the Institute for Paralegal Education (IPE). This article came from the IPE monthly newsletter and you can subscribe by contacting them at ipefeedback@nbi-sems.com.

Discovery is the period of time after which a lawsuit has been commenced that adversarial parties to that lawsuit exchange information via a specific, codified procedure in furtherance of the case. The purpose of this is threefold: A. It is desirable by both the courts and the parties involved that the case can be resolved without the necessity of an expensive and possibly lengthy trial (in reality, statistics tell us that relatively few cases ever go to trial, despite what TV legal dramas would have us believe); B. To determine which side has the stronger case based on the evidence; and C. Finally, to commit witnesses to their testimony via such discovery devices as interrogatories and depositions. Should the case ever go to trial, these statements become invaluable as a way to (possibly) impeach a witness, or raise concerns about their credibility should they change their story down the road. Following are my top ten tips for paralegals working in discovery (I am a paralegal in Texas but I am going by the Federal Rules of Civil Procedure except where noted, then I am using the Texas Rules of Civil Procedure as a general example. Be sure to look up the rules in your state): There Are Two Types of Discovery: Informal and Formal. Informal is just what it sounds like – the informal exchange of information between two parties without court involvement. Or it could be your own informal Internet search to locate information on the opposing side. This usually takes place at the early stages of discovery, and includes things like people searches, business records searches, or any other type of publicly available information. Formal Discovery, on the Other Hand, Pertains to Discovery That Follows the Procedural Rules in All its Formalities. That being said, courts still don’t typically become involved in this procedure unless there is a problem, though the discovery requests are propounded on opposing sides and take the format of a formal court pleading. Your attorney may, however, file what’s known as a “certificate of written discovery,” alerting the court to the mutual flow of discoverable information exchanges, though this is not usually required, and is sometimes not even desired. Aside from perhaps setting due dates via some type of docket control order, courts typically don’t become involved in the discovery process unless there is a problem or issue (motion) that needs to be ruled on. The courts largely prefer the attorneys work the process out amongst themselves in a professional manner and in accordance with the rules, though this is not always possible for various reasons. Interrogatories (Rogs) are Questions Asked of the Opposing Party, Usually Via the Attorney’s Office Representing a Party to a Lawsuit. In Texas, as in most states, they must be answered under oath, under penalty of perjury. For this reason, they are notarized when they are completed, and are the only discovery device that is. Here in Texas, the client must sign his responses. The number and types of questions allowable are specified in the federal (R. 33) and your local rules. Generally Speaking, Interrogatories Seek Information Relevant to the Case at Hand, and Can Ask Such Things as Educational and Work Background; Basis and Facts Related to the Case; and Information on Any Witnesses That May be Called to Testify, Amongst Other Things. The answering party generally has 30 days in which to respond (unless both sides agree to a postponement, in writing, which is known as a “Rule 11 Agreement,” and must be filed with the court to be enforceable), or raise an objection. If a party does not respond, nor raise an objection (say, on the basis that the question asked is protected under the attorney-client privilege), then the propounding party may file a Motion to Compel, officially asking the court (as this Motion is formally filed with the court) to compel the offending party to respond, or otherwise rule on an objection. The offending party may be sanctioned, up to and including even having the case dismissed, though this harsh of a sanction is extremely rare. The number and types of questions allowable are limited by the rules of civil procedure, as are the responses and time to respond. This process is typically a rather routine, orderly flow and most attorneys can work out delays or issues amicably. Owing to our adversarial system of justice, however, this is not always possible. Requests For Disclosure (RFD) Under federal rules certain disclosures are automatic and do not have to be formally requested. If your case is in federal court, go to the FRCP, then click Roman numeral V – “Disclosures and Discovery,” then click R. 26 “General Provisions Governing Discovery.” There you will see, under R.26 (a)(1) the list of items required to be disclosed without a discovery request. See also R. 37 “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.” Of course always be sure to consult your state and local rules. Many state rules require a formal, written request be propounded on OPC. See also my blog entry on this topic at http://samihartsfield.wordpress.com/2011/10/29/federal-discovery-initial-disclosures-are-automatic-under-the-federal-rules-of-civil-procedure/. Requests for Admissions (RFA) Are an Ordinary Discovery Device Used Primarily to Eliminate Matters About Which There is No Real Controversy, Thereby Streamlining the Litigation Process. Under the FRCP, RFAs are governed by Federal Rules of Civil Procedure, R. 36. Google for your local rules. In Texas, RFAs are specific questions that require the answering party to either admit or deny a particular fact. They must be in writing and may be served only on other parties to the lawsuit at any time after the suit is filed. Texas discovery rules permit the request to be filed with the Original Petition. In that event, the answers are due 50 days after citation of service whereas one would otherwise typically have 30 days in which to respond. ** Please note that if your client is the one answering RFA, and if you do not admit, deny, or challenge the request for admissions by the due date stated in the request, then they automatically become admitted as true as a matter of law. Requests For Production (RFP), Which Can be Found Under Rule 34 of the FRCP, are a Common Discovery Device Used Between Parties to a Lawsuit so That Documents and Things May be Obtained From the Opposing Sides . This includes: “any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or any designated tangible things; or to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” The documents and things must be produced as they are kept in the “ordinary course of business,” or an appropriate time and place must be provided for the opposing side to inspect and copy the requested items, provided they are discoverable items. Depositions by Oral Examination are Covered Under R. 30 Of The FRCP and Must Give Reasonable Written Notice to Every Other Party . If a subpoena duces tecum (the notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition) is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. Additionally, the party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be audio- or videotaped, along with a written record taken by a court reporter. Oral depositions are limited in duration, number, and scope under the rules of civil procedure. (See also the Federal Rules of Evidence.) A Deposition May Also be Taken by Written Questions: A party may serve written questions in a sealed envelope on the opposing party, who must deliver them to the court officer. The officer must ask the deponent those questions and record the answers verbatim. See also DWQ under Federal Rules R. 31. eDiscovery and Electronically Stored Information (ESI): It’s here; get up to speed on ESI as attorneys are traditionally slow to embrace new technology. It can be found in the Federal Rules of Civil Procedure under R. 26(f), for example, which is known as the “meet and confer” rule. This rule necessitates that parties meet at the beginning of the litigation process to discuss any discovery-related issues, including whether or not a party intends to produce or request ESI. A report will then be given to the court, at which time a judge will consider this information and enter a scheduling order affirming the discovery due dates. Incorporate an eDiscovery strategy within your overall discovery plan. Remember to use this as a go-by only. Always consult your own local rules (both the rules of civil procedure and the rules of evidence) specific to the type of discovery device you and your attorney are employing.

Sami K. Hartsfield, ACP, is a freelance paralegal and writer in Houston, Texas. She conducts medical, legal and factual research, investigations, and client interviews. Ms. Hartsfield prepares all manner of legal documents, including pleadings, witness lists and exhibits, trial notebooks, demand and settlement documents, and deposition schedules and summaries. She also coordinates and manages document production, locates and interviews witnesses and experts, and organizes pleading and trial exhibits. Ms. Hartsfield assists lawyers at trial, gathers and reviews medical records, and maintains general client contact. She recently worked as a Webmaster for a personal injury law firm in the Houston area, and started their social media marketing efforts. Ms. Hartsfield earned her AAS degree from the Center for Advanced Legal Studies and will graduate with a B.S. degree, summa cum laude, from the University of Houston Downtown later this year. She is a member of the National Association of Legal Assistants, the American Association of Notaries, and the Electric Data Extraction Network. You can find Sami’s blog on the Web at LegallyBlog. Institute for Paralegal Education • 1218 McCann Drive • Altoona, WI 54720 • © 2011, Institute for Paralegal Education, a division of NBI, Inc. All Rights Reserved.

If interested, please see my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

NOTE: I am not an attorney. This foregoing is not to be considered legal advice. If you need legal advice, consider hiring an attorney licensed to practice law in your state.

You can find Sami on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

 

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Copyright 2012 Sami K. Hartsfield – All Rights Reserved

Paralegal profile: me and Vicki Voisin, the Paralegal Mentor

 

Looking for a great paralegal resource? Then check out the indefatigable Vicki Voisin, otherwise known as the Paralegal Mentor.

I recently had the pleasure of getting to know Vicki as she profiled moi for her nationally popular Paralegal Mentor blog. Vicki is not only a terrific paralegal who toils tirelessly for all professionals, she really is a neat person as well. If you have not checked out her website or blog, I strongly encourage you to do so—it is a plethora of information and resources. And Vicki really does care about helping us become the best paralegals we can be!

Vicki Voisin, “The Paralegal Mentor,” delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethical issues, and other areas of continuing education to help paralegals and others reach their full potential. She publishes Paralegal Strategies, a weekly e-newsletter for paralegals, and co-hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network.  More information is available at www.paralegalmentor.com where subscribers receive Vicki’s 151 Tips for Your Career Success for FREE.

Following is Vicki’s profile of yours truly:

Monday, January 30, 2012

Paralegal Profile: Sami Hartsfield, ACP

Sami Hartsfield, ACP is a freelance paralegal and writer from Houston.

~~~~~~~~~~~~~~~~~~~~

1.    What prompted you to choose a paralegal career?   I took a legal secretary course when I decided to go back to school around 2004. I enjoyed it so much, and was really good at it, so I decided to attend paralegal school.

2. Where did you receive your paralegal education? I have an AAS degree in Paralegal Studies, ABA-approved Center for Advanced Legal Studies (4.0); UH Law Center’s Summer 2008 Prelaw Institute (4.0); BS Political Science, University of Houston Downtown, graduating summa cum laude

3. Do you have any professional certifications? Yes, I have NALA Advanced Paralegal Certifications: Trial Practice; Discovery; Contracts Management; Individual and Entity Medical Liability; and Social Security Disability Law; I am also WestlawNext Certified.

4. What professional associations do you belong to?  NALA; American Association of Notaries; EDEN — Electronic Data Extraction Network (electronic data forensics group).

5. How has your membership benefited you?   Networking; CLE; also I volunteered for board positions which I recommend for myriad reasons such as the aforementioned two activities, and also opportunities to work on public speaking and other desirable skills.

6. What has been the highlight of your career?  Being the first person in my family to earn a college degree and have a professional career—hopefully I will start a new trend! Also, interning with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges in 2007 was a fascinating, eye-opening experience.

7. What do you see as hot trends in the paralegal industry?  I always keep my eye on new technology as the technology industry is so dynamic.

Many attorneys and law firms seem “old school,” that is to say slow to embrace these efficient devices, but I was fortunate enough to work at a medium-sized firm that was paperless and utilized the latest technology. There are so many time-saving and exciting technological devices out there, such as document management systems and trial presentation software, that I’m excited to see what comes out next to help us do our jobs faster and more efficiently, ultimately freeing our attorneys to work on tasks only an attorney may do.

8. Is there a quote that inspires you?  “The ultimate measure of a [person] is not where he stands in moment of comfort and convenience but where [she] stands at times of challenge and controversy.” –Martin Luther King, Jr., Strength to Love, 1963

9. What advice would you give yourself if you met you as a first-year paralegal? Try to find a mentor to emulate; listen and learn; write all you can, volunteer for as many assignments as you can at work or will be given to you; join your local paralegal association and go to meetings and/or volunteer; and hang out with the winners.

10. What is the one thing you wish you were better at? Math and statistics (thank you calculators and actuarial tables!)

11. What’s more important to you – comfort or style? Why not have both?

12. How do you deal with work-related stress? I listen to Mozart.

13. What is one thing about you that most people don’t know? I have a very discreet, well-hidden tattoo of my kids’ names somewhere on my body. 

Bonus Question: Are you a cat person or a dog person? Definitely “cat”

You can view and Subscribe to the Paralegal Mentor’s blog here.

Want to know more about Vicki? Go here.

Legal Talk Network

Visit the Paralegal Mentor website at www.paralegalmentor.com.

AND

Please see Vicki’s Paralegal Mentor Events & Appearances:

Put some of your life on auto-pilot…join the Paralegal Mentor Inner Circle…it’s free! Members will automatically receive each issue of Paralegal Strategies and be registered for each Mastermind call (you’ll receive the recording, too) AND there will be discounts and freebies for members throughout the year. Go here to get your name on the list.

Thanks Vicki, for taking the time to profile me on your blog, and keep up the great work as the Paralegal Mentor!

Sami K. Hartsfield, ACP is a consumer law paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She is also WestlawNext certified. Sami has worked as a law firm Webmaster, law firm social media marketer, and a ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

 

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Copyright 2012 Sami K. Hartsfield – All Rights Reserved

Federal courts: Right to a jury trial

Photo: Wikipedia Commons

Federal trials: The right to a trial by jury is provided for in the 7th Amendment of the United States Constitution and by other federal statutory law. Specifically, the U.S. Constitution’s 7th Amendment states:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

This means the Seventh Amendment provides that any party may demand a jury trial when there is more than $20 in controversy. (There is no comparable right to a jury trial for equitable relief.)

Additionally, Rule 38 of the Federal Rules of Civil Procedure states that:

On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

An attorney for a party, or a party himself if pro se, must make a written demand for a jury. If no party makes a demand for a jury, that right is waived. FRCP 38(d).

The demand must state:

…the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury.

Jury trials present both pros and cons, depending on the type of case. Federal jury trials usually require a unanimous verdict, even when contemplating civil cases. This can benefit the defense in that a single hung juror can hand the defendant a “win.” Conversely, jurors in emotionally charged cases have been known to award hefty damages to plaintiffs. Ergo, the decision to request a jury trial or not should be made by an erudite, strategic attorney.

Generally speaking, waiving the right to a jury trial should be considered in cases involving an unlikeable client, the need for a speedy resolution, or if the expense and trouble of a trial is not an attractive option.

If you want to exercise your right to a jury trial, you may write “JURY TRIAL DEMANDED” on your Complaint to the right of the caption (header of a pleading), or you may demand one within ten (10) days after the Answer has been served.

For more info:

Federal Rules of Civil Procedure

FRCP R. 38

7th Amendment to the United States Constitution

Click here to see an actual example of a federal Complaint filed with a jury demand.

For additional, in-depth analysis–including statistical tables–please see “Jury Demand & Trials” by Joni Hersh, Harvard Law School, JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS. (This paper provides an empirical economic analysis of jury trial demands and the implications jury trials have on parties’ settlement behavior. The empirical data uses a unique set of almost 4,000 federal cases. It’s somewhat dated, but nonetheless provides some fascinating insight. What can I say? I’m studying statistics.)

If interested, please see my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

NOTE: I am not an attorney. This foregoing is not to be considered legal advice. If you need legal advice, consider hiring an attorney licensed to practice law in your state.

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She is also WestlawNext certified. Sami has worked as a law firm Webmaster, law firm social media marketer, and a ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

 

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Copyright 2012 Sami K. Hartsfield – All Rights Reserved

Protecting yourself from credit card fraud

Having your credit card stolen or misused, along with identity theft, are ubiquitous and expensive problems, costing credit card companies $50+ billion dollars annually, not to mention the costs to you, the consumer. This post examines ways to protect ourselves against this type of fraud.

Skimming is making illegal and unauthorized copies of credit or bank cards using small reading devices that “skim” the information from the original. This can happen through dishonest business practices or, for example, when you give your credit card to someone to pay for goods or services, as when you give your card to a server at a restaurant. These skimming devices have been known to be disguised as cell phones, and even as a fake ATM machine.

The information can then be used to charge items or pay for things over the Internet. It’s a good idea to always watch carefully when you give your card to anyone, and especially when that individual must walk away from you in order to complete the transaction. Additionally, when you are handed back your card, make sure it is indeed your card, and ensure you get your card back after using an ATM.

Phishing is sending bulk fake emails to consumers hoping one or more of its recipients will fall for the phony bank emails, or other bogus “official” emails, and click on links to provide personal information. These scams largely succeed because they are very sophisticated, with logos or even URLs that are surprisingly similar to the real thing. I have received these myself, and have occasionally been amazed at the level of sophistication. In a successful scam, an unsuspecting victim clicks on the link and is taken to a fake website. The victim then unknowingly supplies his/her own personal information to the thieves. Banks will never ask for personal information in this way.

Be particularly cautious with your credit card numbers, bank numbers, and even your mother’s maiden name. Instead, if you receive a suspicious email, visit your bank or other institution in person, via the bank’s secure website, or call the institution directly.

At any rate, you should never send this type of information in an email because emails are generally not secure, and the information could be intercepted, although Google’s Gmail claims it is the first major email provider to offer default encryption:

Gmail is the first major web mail provider to offer default HTTPS access. This means that messages are encrypted during their transmission from your web browser to Google’s servers, which helps protect your data from being snooped by third parties if you’re using an unsecured Internet connection. Learn more.

If you go to your bank’s secure website, you will know it’s secure by seeing the little key lock icon in the top browser bar or lower-right-hand corner. Also, if you do bank online, do not use the automatic sign-in option, and that goes for any credit card site as well. Understand that secured, encrypted sites begin with “https” instead of just “http.”

The security code is a three- or four-digit number on the back of your card. Merchants may use this number to ensure the card is actually in your possession when you make purchases over the phone or Internet. Zealously protect this number as well, as if thieves make off with the other information, they won’t be able to use it without this security code. (Many merchants now also verify your mailing address and zip code, so make sure these are up to date.)

To protect new cards, make sure you phone in verification as soon as you receive a new card. Sign the back in black, permanent ink. Some folks have taken to writing “ask for ID” on the signature line, but credit card companies recommend against this as some merchants require a signature.

Record all the credit card information and keep in a secure place (not traveling with you!) in case there’s ever a problem. Keep copies of all receipts – both point-of-sale and ATM – to check against your monthly billing statement.

So what else can we do to protect ourselves? Of course always keep a close watch on all your belongings. Never travel with more credit cards than you will need. Do not travel with your Social Security card unless you’re going to need it. Keep your credit cards separate from your wallet. If you lose your wallet or purse, or it’s stolen, notify your bank and credit companies immediately (your liability for unauthorized purchases is limited to $50 per federal law, but you could lose that protection should you be negligent in reporting the card missing or stolen).

Notify the post office immediately if you are moving, and if you move, call all of your creditors to let them know. Always put your complete return address on outgoing bills, and never leave outgoing bills in a mailbox in front of your house – leave them at the post office or other secure mail box instead. Shred all credit and other solicitations before disposing of them, and know when your billing statements are due to arrive. Better yet, check to see if there’s an online billing statement option and choose that instead (be sure to go to the site directly to pay!).

Some websites offer “free access” if you provide credit information. Don’t fall for this – it’s likely you’ll be charged a one-time or even revolving fee. Monitor your account for such activity.

Don’t write your PIN number down – memorize it. If a merchant calls you regarding a purchase, ask to call them right back. Don’t keep your PIN number with your cards. Don’t use your birthday or your children’s birthday for your PINs. Don’t lend out your card, because you will be responsible for whatever charges that person makes (if you knowingly and willingly give out your card).

If you will be traveling or making unusually large purchases, let your credit company and bank know. If you don’t, you may just get to Timbuktu and find you can’t use your card.

Notify your bank or credit company immediately if your cards are lost or stolen. Your liability is limited only if you take care of this notification in a timely manner. Follow verbal or email notification up with a letter and keep a copy. The letter should include your account or card number, the date the card went missing, and the date you reported it. When you report this loss or theft, you will be sent a fraud affidavit. Fill it out, have it notarized immediately, return it, and keep a copy for your records.

Review your monthly statements immediately as they arrive. Consider using companies that allow online account access. This way you can monitor your account activity daily. Know when your bills are due, and report missing ones promptly (you are responsible for paying your bills even if you didn’t receive the statement).

Read the federal Fair Credit Billing Act (FCBA). Know that you have the right to dispute charges on your credit card and ask for a “chargeback,” ie a refund from the credit company. You cannot dispute a charge that has not yet been made, but with an online account, you can monitor daily for questionable charges. You must notify your credit company within 60 days to dispute a charge or you may lose that right. Always chronicle disputes in writing. If you phone your credit company, follow up with a letter. Make sure you fill out any forms or affidavits they send you, and always keep a copy.

Use credit instead of debit cards: you can dispute unauthorized credit charges, but with debit cards, when the money is gone, it’s gone.

Everyone is entitled to at least one free credit report annually. You have the right to get one free report from each of the three major reporting entities  – Equifax, Experian, and Trans Union — for a total of 3 reports annually. Order yours online at www.annualcreditreport.com.

One last thing, you don’t have to pay extra for fraud protection provided you report any problems timely. Don’t be snookered into spending extra money each month that you don’t have to spend. Just make sure to report lost or stolen cards immediately. If you report the loss as soon as the card is stolen or used for an unauthorized purchase, the FCBA dictates the credit card company cannot hold you responsible.

Source: www.consumer-action.org

For more info:

Federal Trade Commission  (consumers)

National Fraud Information Center 

State attorney general’s office (find your state attorney general here!)

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More on consumer law

If interested, please see my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

NOTE: I am not an attorney. This foregoing is not to be considered legal advice. If you need legal advice, consider hiring an attorney licensed to practice law in your state.

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She is also WestlawNext certified. Sami has worked as a law firm Webmaster, law firm social media marketer, and a ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

 

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Copyright 2012 Sami K. Hartsfield – All Rights Reserved

A lawyer’s Christmas: Twas the night before Christmas in legalese

Exhibit A

It’s that time of year again! Time for: A lawyer’s Christmas!!

‘TWAS THE NIGHT BEFORE CHRISTMAS in Legalese ~~ Author unknown

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to, a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter. The minor residents, i.e. the children, and issues of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the party of the second part (hereinafter “Mama”), and said Mama had retired for a sustained period of sleep. At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus. [See Exhibit A]

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co- conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!” Or words to that effect.

Happy holidays and have a fantastic new year from LegallyBlog® by Sami K. Hartsfield, ACP!!

Sami K. Hartsfield, ACP is a freelance paralegal and writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com. 

Sami Hartsfield

  

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Westlaw’s headnote of the day–FREE to sign up

Westlaw headnote logo used with permission by Westlaw.

Hey, this is pretty cool for us legal folks and other nerdy people out there. You can sign up for a FREE Westlaw headnote of the day. For those who have no clue what this is, a headnote is defined at Georgetown University Law Center this way:

WHAT IS A HEADNOTE?

Before a case is published in a reporter, an editor at West reads the case and selects the important issues of law. For each major issue, the editor then writes a short description called a headnote. These headnotes are typically found at the beginning of each opinion and help the reader to determine quickly the issue(s) discussed in the case. For example, here is the third headnote of a U.S. Supreme Court opinion, Gideon v.Wainwright, 372 U.S. 335:

3. Constitutional Law 268.2

Sixth Amendment to federal Constitution providing that in all criminal prosecutions the accused shall enjoy right to assistance of counsel for his defense is made obligatory on the states by the Fourteenth Amendment, and indigent defendant in criminal prosecution in state court has right to have counsel appointed for him. Betts v. Brady, 316 U.S. 455, 62 S.Ct 1252, overruled. U.S.C.A.Const. Amends, 6, 14.

The headnote describes one major issue in the case: whether an indigent defendant in a criminal prosecution in state court has the right to have counsel appointed for him. The broad topic assigned is “Constitutional Law,” the key number is 268.2.

For example, today in my email inbox I received the following “Headnote of the Day” from Westlaw:

December 9, 2011
Today’s Headnote [the key numbers below were all live links I could further click on if I was so inclined]:

120 Deeds
120I Requisites and Validity
120I(E) Validity
120k68 Capacity and Assent of Parties in General
120k68(3) k. Sickness or Extreme Age.

Defendant wrote a deed to the land in issue without any previous agreement with the owner as to its terms, or the latter’s consent to execute it, went to such owner’s home, and while he was dying, unconscious, and unable to raise his hand, and with his name subscribed to the instrument, raised him from his bed, took his helpless hand, touched it to a pen, and then with such pen made a cross mark, and wrote the words “his mark.” Such owner was wholly unconscious thereafter up to his death. Held, that such instrument was …..[have to go read the case below to see the outcome.]

Abee v. Bargas, 65 S.W. 489 (Tex. Civ. App. 1901)

Suggested by Robert Von Dohlen, Law Student; St. Mary’s University School of Law; San Antonio, TX

Or just sign up to receive your own headnote of the day delivered right to your inbox.

Pretty cool, eh? Thanks Westlaw!

Other Westlaw links that may interest you:

Westlaw Insider

FREE Westlaw newsletters

Take a tour of Westlaw Next

If interested, please visit my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

 

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com. 

Sami Hartsfield

 

  

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Copyright 2011 Sami K. Hartsfield – All Rights Reserved

Burned Alive by Kieran Crowley–true crime book review

It is with pleasure mixed with deep regret that I write of my affection for this book. Pleasurable because Burned Alive by Kieran Crowley is one of those can’t-put-it-down-until-I-find-out-what-happens-next stories, but regrettable due to its subject matter. There was no happy ending here for anybody involved in this story.

I read a post by veteran true crime author Ron Franscell (and one of my all-time favorite, recommended authors) once where women are, by and large, the majority of true crime readers. This surprised me, because I know so few other people in “real life” who happen to be females and who also happen to read these types of books. Indeed, many folks who learn I have a fetish for true crime stories find it macabre at best and sinister at worst. The post suggested that women read true crime books so as not to become victims themselves; I read them to find out the why.

I have always been fascinated by deviant behavior, and though I do not believe I have ever come into contact with true evil (though I suppose it is possible and I just didn’t know it), I do believe I have come into contact with some people who–for whatever reason–are capable of atrocities such as what ultimately occurred in this particular story. It is that reason for which I search. Perhaps I will someday write my own totally unscientific book on reasons why some people wind up doing such sickening things. I don’t feel there’s usually (though not always) one particular reason. No, I find it’s more of a “perfect storm” of poor decisions, bad upbringings, poverty, substance abuse, ad nauseam … as is what I personally believe happened in this case. (Please note I am not a doctor nor a psychiatrist; my opinion comes solely from my own life experiences and reading true crime stories since 1992.)

As with all true crime books I read, it is my fervent desire that we learn much from these real-life stories, particularly should we wish any good to come out of them. There’s extant an old adage that those who forget the past are doomed to repeat it. If so, some true crime books should be required reading for all young people—and this book would be one of them, I think. To say that one life was terribly, cruelly destroyed (the victim’s) would be an understatement. All involved, especially the victim’s father, and yes, even the perpetrators and their families–all of them felt the reverberations of this one stupid act, and will likely continue to do so forever.

Burned Alive tells the harrowing human drama of several young folks—seemingly directionless for the most part, some from a good background, others not so fortunate. Their paths fatefully converge because, according to the book, four young men hatch an ill-begotten plan to make a quick buck. The heroine and victim of our story, 20-year-old Kim Antonakos, is kidnapped because the young men rightfully deduced her wealthy computer executive father, Tommy Antonakos, would hastily pay a fat ransom for her safe return. Only the plot went horribly wrong.

Kim was abducted easily enough while returning to her apartment late one evening after a night out dancing, and was swiftly absconded to the pre-designated “safe house” basement–actually an abandoned house that was, incredibly, located within walking distance from one of the kidnapper’s relative’s home. The kidnappers tied her up and intended to keep her hostage there until they secured a ransom, at which time they would ostensibly release Kim unharmed.

Except that the kidnapper who was supposed to feed her and give her water did not; except that the kidnappers discounted how cold it actually was in the basement where Kim was tied up and left alone; except that – for reasons that were never made clear – her wealthy father who loved Kim very much never received any ransom demand; and except for the fact that as the plan unravelled with no money on the horizon, the kidnappers had not the foresight to plan what to do in the event of such a wash out.

It is difficult to fathom one person capable of such a kidnapping, but in this case there were four kidnappers, all young men whose lives were either ruined or lost because of this one poor choice. It defies the imagination that four people could actually agree not only to concoct such a plot, but to carry it out. It would have taken just one of them to stop the plot from unfolding if only one had talked. None did.

Desperate once they realized their plan was going awry, and allegedly intending to free Kim unharmed, the four young men returned to the house after several days. Kim was still tied to a chair, but she unfortunately appeared to have died – likely due to a cruel combination of starvation, dehydration, and hypothermia. Supposedly shocked to find Kim dead, the four young men decided they had to rid themselves of the evidence, namely Kim. Another plan was quickly hatched. She was doused with gasoline. A young man named Joshua Torres, by far the most cold-blooded of the four, lit a match as he told her, “I’m sorry it has to end this way, but life sucks. Sh** happens” (68). With these parting words, Joshua Torres allegedly flicked the lit match at Kim, and she was indeed burned alive. For unbeknownst to the men, either because they didn’t check or because they just didn’t care, Kim was in fact still alive. But just barely.

A forensic pathologist later testified at trial that Kim had been alive when set ablaze.

This is the same Josh Torres that Kim had kindly let stay in her apartment, along with his girlfriend and their toddler, until they could get back on their feet. The same Josh Torres that helped Kim’s deeply aggrieved father “search” for her, throwing up red herrings all along the way. The same Josh Torres that was ultimately responsible for murdering one of the other original four kidnappers. Oh yes, one of the original four kidnappers was gunned down one night while out with his family on a city street.

For the CIA has a saying when there are two perpetrators of a crime: “Two men can keep a secret—provided one of them is dead” (71).

Adding to the heartbreak is that Kim’s father has said he would have paid any amount of money to get his beloved daughter back safe and sound.

The story is fast-paced, well written, and investigated thoroughly. Readers come to know all the players, from the kidnappers to Kim to the investigators. We also come to know how heartbroken Kim’s father is, and his pain is palpable through the pages. At least, those of us amongst we human beings who possess a conscious can feel it.

It is not a leap to suggest that, for whatever reason, Josh Torres is one of the – thankfully — small percentage of us who does not.

Grade: **** 1/2 (out of 5) 

MURDER CAN’T KILL A DAD’S LOVE

Man Guilty Of Murder In Setting Student Afire 

Joshua Torres still proclaims his innocence, with much of his side of the story found on his Facebook page.

Update 2011: Tommy Antonakos passed away in 2005, still painfully haunted and mourning his beloved daughter’s death up until the end.

Birth:  Jul. 16, 1944 Death:  May 29, 2005 Tommy Antonakos

Ready to read?
Buy the book on Amazon 
Read excerpts at Google Books

Other books by Kieran Crowley 

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Find other true crime book reviews here.

If interested, please visit my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

 

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com. 

Sami Hartsfield

  

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Copyright 2011 Sami K. Hartsfield – All Rights Reserved

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

Ah, now we get into the really fun part of discovery: depositions. I could either make this one really long post, or break it up into bite-sized palatable chunks. And we all appreciate concise reads on the Internet do we not? So, we’ll start with Deposition on Written Questions, or DWQ as we call it in the industry. This is not the quasi-dramatic attorney/deponent facedown, we’re not to that part yet (but we’ll get there, don’t worry.)

If you are just tuning in, consider reading the blog posts from the beginning of my series on discovery here. And as usual, I am using the Texas Rules of Civil Procedure as an example because I am most familiar with them, but most states–including mine, Texas–model their rules after the Federal Rules of Civil Procedure. (And some also have downright peculiar dichotomies–more on this later.) So, while any person in any state may use this as a GUIDE (ONLY), be sure to Google your own state’s procedural rules, or the Federal Rules of Civil Procedure if it’s a federal case.

This is the discovery device used most frequently to get your hands on medical and/or billing records, such as would be necessary in a personal injury or medical malpractice case. DWQ are useful typically when the deponent has limited relevant information. A custodian of business records, for example, would be such a person. DWQ are similar to interrogatories in that they are questions drafted in advance and propounded on the witness, but unlike interrogatories, they may be served on non-parties [to the lawsuit] (please see what is a discovery subpoena?).

In Texas, the only persons qualified to take DWQ are: a district court clerk, a county court judge or clerk, a court reporter, or a notary public. Most often, law firms outsource this type of procedure to a business specializing in such services, such as Blue Ribbon Legal (in Texas), or some other court reporting service.

Just like in the case of an oral deposition (the type with which most of you are probably familiar), an official Notice must be drafted and served on all parties (or their attorneys) stating:

• Name of deponent (could be simply “Custodian of BusinessRecords” if name is not known);
• A “reasonable” place and date for the DWQ to take place;
• Notice must be served on all parties at least twenty (20) days prior to the DWQ date–when the Notice requests documents to be produced, thirty (30) days must be given, and the documents to be produced must be specified (known as a subpoena duces tecum); and
• Notice must be signed by the attorney or yourself if you are pro se.

The questions to be asked must be attached to the Notice and provided to the deposition officer. Usually this means a list of business documents or medical records “kept in the ordinary course of business” will be requested of the deponent, and by answering the written questions, the deponent is averring that the provided documents are indeed the ones requested.

This is the most common way to procure documents needed to shore up a case. 

This is also a rather simplistic explanation intended for informational purposes only. Please remember that I am not an attorney, and if you need legal advice, it’s suggested you consult with an attorney licensed to practice law in your state.

For more information regarding a Deposition on Written Questions, including how to object to them, how to assert privilege, and how to ensure they will be admissible to trial should a trial eventually occur, please go here. Pay particular attention to the different ways documents can and must be made admissible to court (should the case ever go to trial), which is called authenticating a document.

Next I’ll cover oral depositions.

**Always remember to consult your own state’s rules, and any local rules that may apply! For an overview of civil procedure, go here.

For additional helpful background information, please see “A primer on all the different types of courts.”

Further fun reading: 

Texas Civil Practice & Remedies Code: Who may take DWQ in this state

DWQ under Federal Rules R. 31

Federal Rules of Civil Procedure

Texas Rules of Civil Procedure

Texas Rules of Evidence

Texas Rules of Appellate Procedure

Texas Discovery rules articles and updates

 

You can find particular judges’ and courts’ web-sites in Harris County (Houston) here.

 

Or just Google for your state, county, or particular judge’s website. You might be surprised how much information you can find there.  

 

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If interested, please visit my entire series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

 

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com. 

Sami Hartsfield

  

LegallyBlog® on Facebook

 

 

Copyright 2011 Sami K. Hartsfield – All Rights Reserved