Preparing and Trying a Civil Case - MCLE | New England ...

1 MCLE, Inc. | 6th Edition 2017 9 i CHAPTER 9 Preparing and Trying a Civil Case Jeffrey C. Melick, Esq. Kajko, Weisman & Colasanti LLP, Lexington Introduction .. 9 1 Presuit Issues .. 9 1 Interview Your Client .. 9 1 Conduct a Preliminary Investigation .. 9 2 Fee Issues .. 9 2 Pretrial Issues .. 9 3 Filing an Action .. 9 3 (a) The Courts .. 9 3 (b) The Time for Filing an Action .. 9 4 (c) The Complaint .. 9 5 (d) Service of the Complaint on the 9 6 The Answer .. 9 7 Jurisdiction over the Defendant .. 9 8 Pretrial Deadlines .. 9 8 (a) State Courts .. 9 8 (b) Federal Court .. 9 9 Third-Party Claims .. 9 9 Contribution Claims .. 9 10 Indemnity Claims .. 9 10 Strategies for Preparing for Trial .. 9 11 (a) In General .. 9 11 (b) Scope of Discovery Permitted .. 9 12 (c) Developing a Discovery Strategy .. 9 13 (d) Interrogatories.

2 9 16 Massachusetts Basic Practice Manual 9 ii 6th Edition 2017 | MCLE, Inc. (e) Requests for Production of Documents and Things .. 9 17 (f) Requests for Admissions .. 9 17 (g) Depositions .. 9 18 (h) Experts .. 9 22 (i) Independent Medical Examinations .. 9 23 (j) Electronically Stored Information .. 9 23 Pretrial Motion Practice .. 9 23 (a) General Considerations .. 9 23 (b) Particular Motions .. 9 25 Mediation .. 9 29 (a) How Mediation Works .. 9 29 (b) The Proper Time for Mediation .. 9 29 (c) Choosing a Mediator .. 9 30 (d) How to Mediate a Case .. 9 30 The Pretrial Conference .. 9 31 The Trial .. 9 32 Jury Selection Process .. 9 32 Choosing the Right Jury .. 9 33 opening Statements .. 9 35 (a) The Procedure .. 9 35 (b) Preparing Your opening .. 9 35 (c) Performing Your opening .. 9 36 The Plaintiff s Evidence .. 9 36 The Defendant s Evidence.

3 9 37 Direct Examination .. 9 37 (a) Preparation of Your Direct Examination .. 9 37 (b) Performing Your Direct Examination .. 9 38 Cross-Examination .. 9 39 (a) Preparation of Your Client .. 9 39 (b) Preparation of Your Cross-Examination .. 9 40 (c) Performing a Cross-Examination .. 9 40 Preparing and Trying a Civil Case MCLE, Inc. | 6th Edition 2017 9 iii Questions by Jurors .. 9 41 (a) Procedure .. 9 41 (b) Considerations Before Trial .. 9 41 (c) Considerations During Trial .. 9 41 Motions During Trial .. 9 42 (a) Motion for Directed Verdict/Motion for Judgment .. 9 42 (b) Motion for Summary Judgment .. 9 43 (c) Motion to Amend Pleading .. 9 44 (d) Motion to Poll the Jury .. 9 45 (e) Motion to Reconcile Inconsistent or Incomplete Verdict .. 9 45 (f) Motion for Mistrial .. 9 45 Closing Arguments .. 9 46 (a) Procedure .. 9 46 (b) Preparation of Your Closing Argument.

4 9 46 (c) Performing Your Closing Argument .. 9 47 Jury Charge .. 9 48 Special Verdict Forms .. 9 48 Review of Exhibits .. 9 49 Jury Deliberation .. 9 49 Receiving the Verdict .. 9 49 Posttrial 9 50 Motion for Judgment Notwithstanding the Verdict (JNOV) .. 9 50 Motion for a New Trial .. 9 51 Motion for Remittitur .. 9 51 Motion to Alter or Amend Judgment .. 9 52 Motion for Relief from Clerical Mistake .. 9 52 CHECKLIST Documents for Personal Injury Cases .. 9 53 EXHIBIT 9A Motion for Separate Entry of Final Judgment .. 9 56 EXHIBIT 9B Order for Separate Entry of Final Judgment .. 9 57 Massachusetts Basic Practice Manual 9 iv 6th Edition 2017 | MCLE, Inc. EXHIBIT 9C Special Verdict Questions for the 9 58 EXHIBIT 9D Ten Frequently Asked Questions .. 9 60 MCLE, Inc. | 6th Edition 2017 9 1 CHAPTER 9 Preparing and Trying a Civil Case Jeffrey C.

5 Melick, Esq. Kajko, Weisman & Colasanti LLP, Lexington Scope Note This chapter provides an overview of Civil trial practice in Massa-chusetts. It begins with a discussion of pretrial activities such as conducting the initial client interview, filing an action, handling dis-covery, and Preparing for mediation. It then addresses jury selec-tion, opening statements, direct and cross examination, motions, and closing arguments. The chapter concludes with a summary of posttrial motions. A documents checklist is included, as well as sample forms and a set of responses to frequently asked questions. INTRODUCTION This chapter explains the general mechanics and strategy that should be used in pre-trial discovery and the trial of a Civil case. It is not intended to constitute advice for any given trial. Every case is different in both fact and complexity, so it is essential to consider issues and strategies that may not appear here.

6 It is also essential to keep abreast of changes in the laws, rules, and court orders governing trial practice. PRESUIT ISSUES It is very difficult to turn down legal work. However, there are occasions when an attorney is better off not taking a case, particularly a contingent-fee plaintiff s case. Before committing yourself, talk with your client, conduct a preliminary investiga-tion, and evaluate your chances of success. Do not feel you have to make a decision right away if you are not sure your client has a case. You may do a disservice to yourself and your client if the case is a frivolous one. Attorneys have a duty to use good faith under Mass. R. Civ. P. 11; clients can end up paying costs, expenses, and interests for a frivolous claim under c. 231, 6F. Also, make sure you have the expertise, resources, and time to devote to the matter.

7 If you do not, refer it to some-one who does. Interview Your Client Your client will most often be your most valuable source of information. Whether the action is a commercial, employment, real estate, environmental, or personal injury case, the people with the most knowledge about the facts are generally the parties to the litigation. Tap this resource as early as possible. Massachusetts Basic Practice Manual 9 2 6th Edition 2017 | MCLE, Inc. Before meeting with your client, obtain at least a general idea of what the case is about. Then check the law to verify the precise facts the plaintiff will need to prove a prima facie case and the defenses afforded the defendant. Make a list of the most basic legal and factual issues your client will face. Use this as a basis to expand the list to include the particular facts you need to know to assess the case.

8 Often, clients will want to know the probability of success, the cost and expected duration of the litigation. Your ability to provide an answer will depend on what you already know about the case and, just as importantly, what you know about your opponent. Do not feel you need to provide answers as though you have a crystal ball. Be direct and honest. If you do not know the answer, say so and promise to look into it more before providing one. Conduct a Preliminary Investigation If there are witnesses that need to be identified and other information that needs to be obtained, hire a good investigator. However, do not hire someone you have never met. Your investigators will be performing essential work for your client and should be as good at what they do as you are at what you do. Ask for references and pay-ment schedules and how they perform their investigations.

9 Make sure the person you speak with will be the same person who performs the work. A checklist of documents to obtain during a personal injury investigation is included as Checklist However, be creative, as each case presents its own investigatory and evidentiary challenges. Sometimes attorneys like to conduct their own investigation. However, be careful not to put yourself in the position of being a witness, which would probably mean you would have to withdraw from the case. Mass. R. Prof. C. ; see, , Borman v. Borman, 378 Mass. 775 (1979); Kendall v. Akins, 374 Mass. 320 (1978). Also, make it clear that you are strictly looking for honest answers and facts. Do not contact any-one who is represented by an attorney; contact their attorney instead. See Mass. R. Prof. C. Practice Note Do not record a telephone conversation without the permission of all par-ties to the call, and if they have given their permission, make sure they say so on tape.

10 C. 272, 99. Fee Issues A contingent fee agreement must be signed by every plaintiff and plaintiff attorney in personal injury and certain other cases. Mass. R. Prof. C. (c). A combination of a contingent fee and hourly rate is sometimes used in commercial and other cases. Make sure your client understands the implications of the fee agreement up front. Preparing and Trying a Civil Case MCLE, Inc. | 6th Edition 2017 9 3 PRETRIAL ISSUES Filing an Action (a) The Courts Before filing an action, it is obviously essential to understand where the case should be filed. An outline of the different courts in Massachusetts is provided below. Small Claims Court Small claims court has jurisdiction over claims involving up to $7,000, but property damage in automobile accident cases can be higher. c. 218, 21. Cases are tried to a judge.