Civil Procedure

September 10, 2009

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

August 6, 2009

Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)

by The Law Offices of John Day, P.C.

"All objections, except those as to the form of the question, are reserved." This sentence, or one substantially similar to it, may be found at the beginning of every deposition. But what are objections to the form of the question?

Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post. The post lists seven different objections – vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation – and gives examples of several of the objections. It is a handy list that you may wish to keep as a part of your materials on the law of depositions. Of course, you can always come back to this site and find the link under the "Civil Procedure" category or by using the "Search" function.

Many people get upset when you object to leading at a deposition. And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial. The law permits those witnesses to be lead during depositions. But the deposition of a co-party or a third-party witness is different. Why? Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).

July 24, 2009

Does Error of Counsel Justify Setting Aside a Default Judgment?

by The Law Offices of John Day, P.C.

Not in the Seventh Circuit, it doesn’t. In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).

The Court ruled as follows:

[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that “[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds.” The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong’s actions, even with BMF’s purported diligence, do not fall within the exceptions to the rule and do not rise to the level of ‘exceptional’ to warrant such ‘extraordinary’ relief.

July 3, 2009

Article about Requirements for Pleading Facts in Complaints

by The Law Offices of John Day, P.C.

Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v. Iqbal, 129 S.Ct. 1937; 2009 U.S. Lexis 3472 (May 18, 2009), a recent decision that sheds more light on Twombly.

Andrée explains that in Twombly the United States Supreme Court held that

to survive a motion to dismiss a complaint must contain ‘enough facts to state a claim to relief that is plausible’ and must suggest a ‘right to relief above a speculative level.’ ‘Labels and conclusions,’naked assertion[s]’ without ‘ further factual enhancement,’ or ‘a formulaic recitation’ of the elements of a cause of action will not survive a motion to dismiss.