Litigation Commons^™

Opening Statement: Persuading Without Argument, Maureen A. Howard

Articles

A basic rule of trial practice is that a lawyer cannot argue in opening statement. A lawyer who breaks this rule runs the risk of drawing an objection from opposing counsel and having it sustained by the judge. Of course, as with most rules of trial practice, a lawyer can get away with de minimus violations in most cases and wholesale disregard in cases where opposing counsel—whether as a result of inexperience, inattention or trial strategy—doesn’t object. Although simple in concept, lawyers commonly falter in practical application of the “no argument” rule in two ways: 1) failing to understand what …

Direct Examination: Lawyer As Director, Maureen A. Howard

Articles

A trial lawyer presenting her case in chief through direct examination is somewhat like a film director: the lawyer thoroughly analyzes the case and develops a plan for the most effective way to present the case to the jury to best advance her theme and theory. Just as no script would play out on film the exact same way in the hands of different directors, no case would be presented in exactly the same way by different trial lawyers. Yet there are constants to be found in the steps effective trial lawyers take during their case in chief when presenting …

10 Tips For Getting Jurors To Talk, Maureen A. Howard

Articles

“Jury selection” is a misnomer because lawyers don’t actually get to “select” ideal jurors; they get a limited opportunity to “deselect” the worst prospective jurors. The goal of voir dire is to identify these jurors by uncovering their attitudes, beliefs, opinions, preconceptions, biases, and prejudices. To accomplish this, a lawyer has a difficult task: she must foster an honest, intimate conversation among strangers in a very public, formal environment.

Even honest jurors may give misleading answers during voir dire due to nervousness, inattention, faulty memory, or misunderstanding. The formal courtroom atmosphere can have a chilling effect at odds with the …

Settling Significant Cases, Jeffrey R. Seul

Washington Law Review

Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which …

Awakening Hong Kong's Sleeping Lion: A Case For Increased Use Of O 62 R 8, Gregor A. Hensrude

Washington International Law Journal

Hong Kong, like much of the world, is facing public criticism about the operation and accessibility of its civil litigation system. One judge and scholar has suggested increased use of a litigation rule requiring solicitors to pay any costs wasted by their misconduct. By comparing this rule to its counterparts in the United Kingdom and the United States, it becomes apparent that such a solution could work to improve litigation in Hong Kong. Increased use of the rule would compensate parties injured by abusive litigation tactics and deter solicitors from engaging in misconduct to line their pockets or win for …

Washington Practice Materials, Nancy Mcmurrer

Librarians' Chapters in Books

• Introduction
• Encyclopedic Sources
• Subject-Specific Resources
• Litigation Aids
• Ethics Opinions
• Directories
• Current Awareness: Bar Publications and Legal Newspapers
• Subject List of Practice Resources

The Garbage Smuggling Case: Judgment Of Division One Of The Shanghai Municipal Intermediate Level People's Court January 13, 1997, Janice Wingo

Washington International Law Journal

The American press has reported on the arrest and trial of William Ping Chen for the importation of garbage into China, alleging that he is a pawn in Sino-American relations. Whatever the political background, the decision of the Shanghai Municipal Intermediate Level People's Court shows that this case was decided according to established rules of law.

A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn

Articles

This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.

Under a modernized standard, a court should redress immediate pretrial …

Federal Courts And Attorney Disqualification Motions: A Realistic Approach To Conflicts Of Interest, Linda Ann Winslow

Washington Law Review

The motion to disqualify an adversary's attorney has become the newest weapon in a litigator's motion arsenal. Disqualification motions alleging conflicts of interest can result in a great advantage to the movant by denying the opposition their choice of counsel, or by delaying the proceedings for several weeks or months. The attractiveness of the attorney disqualification motion as a strategic weapon is enhanced by the failure of the courts to impose sanctions against attorneys who bring frivolous disqualification motions. This Comment examines the treatment in federal courts of motions made to disqualify an adversary attorney and the relevant rules of …

Washington's Retreat From Civil Rights Enforcement—Meyer V. University Of Washington, 105 Wn. 2d 847, 719 P.2d 98 (1986), Jack Warner Widell

Washington Law Review

Congress passed the Civil Rights Attorneys' Fees Awards Act of 1976 (the Fees Act) to provide fees sufficient to attract competent counsel for civil rights plaintiffs, and thereby to promote private enforcement of civil rights laws. Ten years later, in Meyer v. University of Washington, the Washington Supreme Court transformed the Fees Act into a shield for civil rights violators which will deter bona fide civil rights claims. This Note reviews the history of the Fees Act, critiques the Meyer court's analysis of the Act, and proposes alternate methods of evaluating claims of prevailing defendants. The Meyer court misinterpreted the …

Jury Instructions: A Bibliography. Part I: Civil Jury Instructions, Cheryl R. Nyberg, Carol Boast

Librarians' Articles

Pattern jury instructions are used by trial judges to explain the law to jurors in language that they can understand and that provide consistency from one trial to another. This bibliography contains references to 156 recent and dated compilations of civil jury instructions. An index to acronyms for civil jury instructions is included.

Jury Instructions: A Bibliography. Part Ii: Criminal Jury Instructions, Cheryl R. Nyberg, Jane Williams, Carol Boast

Librarians' Articles

Pattern jury instructions are used by trial judges to explain the law to jurors in language that they can understand and that provide consistency from one trial to another. This criminal jury instructions bibliography of 169 entries is a companion to a previous bibliography on civil jury instructions. An index to acronyms for both criminal and civil jury instructions is also included.

The Lawsuit Lottery, By Jeffrey O'Connell (1979), Cornelius J. Peck

Washington Law Review

The dustjacket for this already provocatively entitled book continues with the additional legend: "Only the Lawyers Win-Most people get nothing. A few get too much. A proposal for reform." This addition to the title of the book gives appropriate, if not exact, warning that a reader is about to fall under the influence of a spell-binding author, whose sense of theatre equals that of the lawyers whose exploits he exposes. It does not, however, prepare one for his serious analysis, arguments, and proposals concerning how law should distribute the losses of accidental injuries which occur in our society.

The Lawsuit Lottery, By Jeffrey O'Connell (1979), Cornelius J. Peck

Washington Law Review

The dustjacket for this already provocatively entitled book continues with the additional legend: "Only the Lawyers Win-Most people get nothing. A few get too much. A proposal for reform." This addition to the title of the book gives appropriate, if not exact, warning that a reader is about to fall under the influence of a spell-binding author, whose sense of theatre equals that of the lawyers whose exploits he exposes. It does not, however, prepare one for his serious analysis, arguments, and proposals concerning how law should distribute the losses of accidental injuries which occur in our society.

Jury Selection—Key-Man System Eliminated, Anon

Washington Law Review

Defendant was indicted by a federal grand jury for perjury. The jury commissioner solicited names of prospective jurors from various "key-men," community leaders who had been instructed in the qualifications which the jury commissioner felt prospective jurors should have. On appeal the Court of Appeals for the Fifth Circuit dismissed the indictment. Held: Key-man jury selection violates the standards for jury selection prescribed by the Civil Rights Act of 1957. Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966).

Practice And Procedure, William S. Stinnette, John A. Gose, Vincent L. Gadbow

Washington Law Review

Covers cases on remedies for the failure to reveal information in pretrial discovery (Stinnette), on the trial court's duty to give reasons for denying a new trial, on the failure to administer the oath to jurors prior to voir dire, on the appealability of a suspended sentence when a guilty plea precludes appeal (Gose), on changes in the rules for appellate briefs regarding assignment of error, and on other changes to the appellate rules (Gadbow).

Some Reflections On The Trial Of A Lawsuit, Thomas F. Murphy

Washington Law Review

I didn't know when I received your invitation what subject would be most interesting to talk about. I have come to the conclusion that I will talk to you about my experiences in the trial of a law suit, and I ask you to measure that experience by the short time that I have been a lawyer. Because what I propose to do is not to speak to you, say from Mount Olympus, but to speak as I may as a friend, among friends, and then perhaps, if we have time, to open the floor to any questions you care …

The Preparation And Trial Of A Lawsuit, John J. Kennett

Washington Law Review

It is at once obvious that the subject matter encompassed by the above title is so vast that the most that can possibly be done here is to make a few suggestions that may prove helpful to the younger and more inexperienced members of the bar. It is with that thought in mind, and with a profound sense of inadequacy, that I offer the following suggestions. It likewise should be noted that many of the suggestions here made were, in the first instance, the brain children of others—I have simply adopted these brain children who were given birth by older, …

Continuances In Washington, Phyllis A. Kemp

Washington Law Review

The granting or denying of a continuance is a matter within the sound discretion of the trial court, to be reversed only for a manifest abuse of discretion. This does not mean, of course, that the trial judge can decide by the toss of a coin whether to grant or deny a motion for continuance. He is under a positive duty to exercise his discretion wisely, keeping in mind the relative considerations of speedy justice as against the right to present all of the evidence available in support of one's case. A study of the cases will disclose some of …

Recollection On The Witness Stand, Harwood A. Bannister

Washington Law Review

The art of witness interrogation is difficult where the witness on the stand is unable to narrate the event which he has observed because of some present defect in his recollection. In such case there are the following possibilities: A. The impressions once made upon the mind of the witness may be revived by some means. This is "present recollection revived". B. If a record has been made of the witness' impressions, such record may come in as evidence if certain requirements be met. This is "past recollection recorded". The purpose of this comment is to collect the Washington cases …

Action Against Receiver—Equitable Defenses; Bank-Depositor Relationship—Three Doctrines Relating To Endorsements; Constitutional Law—State Taxation—Interstate Commerce; Evidence—Spontaneous Declarations Of Present Pain; Corporations—Watered Stock; Workmen's Compensation—Compensable Employment—Emergency Relief Work; Landlord And Tenant—Crop Share Rental—Interest Of Landlord In Tenant's Conflict With Seed Company, C. A. C.

Washington Law Review

No abstract provided.

Attachment—Failure Properly To Index Writ As Affecting Constructive Notice; Criminal Law—Indictment And Information—Motion To Set Aside Judgment After Conviction Pleading Statute Of Limitations; Damages—Breach Of Agency—Burden Of Proof; Executors And Administrators—Right To Appoinment—Testamentary Selection—Effect; Mechanics' Liens—Statute Of Limitations On Filing Of Liens—Completion And Abandonment; Taxation—Exemption Of Property Of Municipal Corporations—Power To Tax; Workman's Compensation—Status Of Widow Who Married Injured Workman Subsequent To Time Of Injury, J. J. L.

Washington Law Review

No abstract provided.

Agency—Liability Of Undisclosed Principal For Unauthorized Acts Of Agent; Constitutional Law—Delegation Of Legislative Power To A Foreign Body; Evidence—Parol Evidence Rule—Collateral Agreements, E. G. N.

Washington Law Review

No abstract provided.

Agency—Liability Of Undisclosed Principal For Unauthorized Acts Of Agent; Constitutional Law—Delegation Of Legislative Power To A Foreign Body; Evidence—Parol Evidence Rule—Collateral Agreements, E. G. N.

Washington Law Review

No abstract provided.

Improper Service Of Notice On Minor Heirs In Administration Sale—Effect On Validity Of Sale—Notice Jurisdictional; Inheritance Tax—Applicability Of Equitable Conversion; Mortgages—Refusal Of Confirmation—Inadequacy Of Price Bid—Effect Of Financial Depression; New Trial—Impeachment Of Verdict By Affidavit Of Juror—Compromise Verdict; Usury—Intent Necessary To Make Sale On Credit Usurious, R. T. Y.

Washington Law Review

No abstract provided.

Administrative Officer—Reliance Upon Construction Of Statute By; Insurance—False Statement In Application—Intent To Deceive—Evidence; Landlord And Tenant—Duty Of Landlord To Furnish Heat, Water, Elevator Service, Etc.; Real Estate Agents—Necessity For Authorization In Writing; Real Property—Recording Act—Priorities—Recent Statutory Change; Specific Performance—Community Property; Taxation—Inheritance Taxes—Exemptions—Proceeds Of Life Insurance Policies; Water And Watercourses—Irrigation Districts—Nature And Status As Municipal Corporations—Special Legislation, C. P. Z.

Washington Law Review

No abstract provided.

Constitutional Law—Construction Of Constitutional Provisions; Constitutional Law—Due Process—Closing Hours Of Barber Shops; Criminal Law—Argument And Conduct Of Counsel—Death Sentence; Divorce—Power Of Court To Modify Decree As To Alimony; Insurance—Fidelity Bonds—Recovery For Defalcation; Lis Pendens—Affect On Holders Of Unrecorded Deeds Or Encumberances, L. B. D.

Washington Law Review

No abstract provided.

Duress—Busines Compulsion—Recovery Of Payments; Husband And Wife—Confidential Communications; Husband And Wife—Liability For Expenses Of Last Illness And Funeral; Statutes—Construction—Emergency Relief Legislation; Torts—Negligence—Last Clear Chance, G. V. P.

Washington Law Review

No abstract provided.

Assignments—Future Wages—Under Contract, Employment Or Possible Contract Or Employment; Banks—Right Of State Banks To Procure Deposit Insurance; Constitutional Law—Taxation—Corporate Franchises; Contracts—Third Party Beneficiaries—Sureties On Building Contracts; Corporations—Remedies Of Receiver In Collection Of Unpaid Stock Subscriptions; Estoppel—Appointment Of Receiver; Resulting Trusts—Presumptions—Payment Of The Purchase Price—Effect Of Relationship; School Districts—Liability For Negligence;, C. P. Z.

Washington Law Review

No abstract provided.

Injunction—Removal Of Encroachments By An Adjoining Owner; Injunction—Successive Appeals As Nuisance; Landlord And Tenant—Action For Failure To Deliver Premises; Landlord And Tenant—Forfeiture Clause In Lease; Shipping—Limitation Of Liability Of Shipowners; Vendor And Purchasee—Misrepresentations By The Vendor Or His Agent; Workmen's Compensation Act—Who Is Employer, H. H.

Washington Law Review

No abstract provided.