Civil Procedure I (Petroski)

Fall 2009 final exam sample answers

Question 1: Rule 26(a)(1) requires the initial disclosures of 1) any individual likely to have
discoverable information [that may be used to support the disclosing party’s claims or defenses],
2) a copy—or a description by category and location—of any documents or tangible things that
may be used for the party’s claims or defenses, 3) a computation of each category of damages
claimed by the disclosing party and 4) any insurance agreement.

Here, Preston would need to disclose information pertaining to the first three items—witness
information, documentation and damage information—and not the fourth item because he does
not have any relevant insurance information to disclose. First, Preston would have to disclose
the name and, if known, the address and telephone number of each individual likely to have
discoverable information [that Preston may use to support his claims]. The witness information
that Preston should disclose is that of Frieda Pfeiffer, confirming the claim of action against him
and the original incident, and Pfeiffer’s attorney, who may have knowledge pertaining to the
lapse in representation and the effort that might have been taken to contact Preston or Able.
Further investigation would be required to determine if there were additional witnesses, a
secretary, paralegal, or clerk, that may be able to testify to the nature of Preston’s phone call, any
documentation or interoffice communication, and the relationship between Able and Preston.
Also, further inquiry would be needed to determine if a witness saw or heard the conversation
between Preston and Able, perhaps a friend or family member. [I also gave points to answers
noting the possibility of witnesses to the accident leading to Pfeiffer’s case against Preston.]

Second, Preston would need to disclose any relevant documentation. Here, Preston should
disclose a copy of the retainer letter (if still in his possession), the confirmation email dated
November 26, 2007, a copy of the bank statement and maybe a copy from the bank of the cashed
$5,000 check and a copy of the default judgment awarding Pfeiffer $500,000. Further
investigation would be helpful regarding the telephone records. If a copy of the records from
Preston’s house that day could be found, Preston would then be able to provide confirmation that
he called Able from his house. Although this documentation and the email may be used for
impeachment, they will also be used to support the validity of the contract between Able and
Preston and thus they must be disclosed. Also, further investigation regarding Pfeiffer’s attorney
might lead to documentation provided by Able to that attorney that may support the claim that
Able failed to take in action in his role as representing Preston or that may also show
acknowledgement of the contract between Able and Preston. Although a bit of a stretch, further
investigation in this area is warranted.

Finally, Preston must disclose a computation of damages. The bank statement, copy of the
cashed check, and a copy of the default judgment noted above would fulfill this requirement.
Clever should expect Able to disclose insurance information and any witnesses or documentation
that would support his affirmative defenses of impossibility and contributory negligence. Here,
Able has denied all of the allegations in the complaint except those in paragraph 6. However, he
is required to present any witnesses that would support his affirmative defenses. It is likely that
Able would disclose the name, address, and telephone numbers of staff members in his office
that could testify that the call never occurred, that a relationship was never formed, and that if a
relationship was formed it was Preston, not Able, who failed to go forward with the action.
Secondly, Able would need to come forward with any documentation supporting his claims or
defenses. If an email was never sent on November 26, 2007 then a copy of his sent email
records showing the absence would support his affirmative defense of impossibility. Further,
supporting his claim of contributory negligence, Able would likely disclose some documentation
of an attempt to reach Preston, to send him information, or of Preston’s negligently failing to
move forward with his defense. Finally, Clever could expect Able to bring documentation of his
insurance policy, specifically that of malpractice.

Question 2: It is not recommended that Clever add a claim for negligent supervision against
Able because a court would most likely deny a motion to amend because of a statute of
limitations issue. Preston’s [injury] occurred [and thus his claim for negligent supervision
accrued] in January 2009 when the Court issued a default judgment against him. However,
Clever filed the original complaint in late October 2009, more than six months after the initial
injury. Unfortunat[e]ly the statute of limitations for a negligent supervision claim is six months
and thus [the original complaint was filed] past the statute of limitations. Clever would be
unable to relate back to the initial complaint because even if she tried, the initial complaint lies
outside the statute of limitations period. [This is an accurate analysis but would not entirely
rule out the possibility of relation back, since the running of the statute of limitations
“clock” can be stopped, or “tolled,” by certain circumstances, including some kinds of
concealment of facts. Because we didn’t cover this possibility in class, I did not expect
anyone to be able to include it in their analysis.]

However, if the statute of limitations is determined not at issue and the judge found that the
amendment could be allowed if it related back to the original claim under Rule 15(c), a court
would likely allow amendment. Rule 15(c)(1)(B) applies when the new claim or defense arises
out of the same conduct, transaction or occurrence. Here the new claim would relate back to the
same time of the litigation, would address the same conduct of the firm, and would be related to
the same occurrence. Here the facts that would be relied on to support this claim would [not] be
materially different from those needed to sustain the original complaint. [A little more detail on
the facts that would be common to both claims would help to make this less conclusory.]
They arise out of the same nucleus of operative facts. Therefore if the statute of limitations is
disregarded, a judge would likely hold that the new claim properly related back to the original
complaint.
However, it is still not recommended that Clever add a claim for negligent supervision because
the relation back rule does not apply [since] the statute of limitations would already have been
violated at the time of the original complaint.

Question 3: Here a court would most likely grant a motion to amend because a court would
most likely determine that the information is not covered by the attorney client privilege or by
the work product protection.

The information requested does not fall under attorney client privilege. Material is considered
privileged under the attorney client privilege and is thus protected from disclosure when it
consists of a communication between a client and his or her attorney. Here, the attorney client
privilege is not appropriate because the information does not consist of communication between
the attorney and his or her client. Able is not Brimmer’s attorney but instead her boss. The
request specifically asks for communications between Brimmer and Able and although this
information may include statements made by Preston at the time to his attorney, the client in this
case has waived his privilege by putting his relationship with his attorney at issue. This privilege
is meant to protect the client, not the attorney and therefore, a judge would most likely deny
protection of this information on this basis.

Able has a stronger argu[]ment that the information should not be disclosed under the work
product protect[ion]. However, here [an exception to] work product should be granted because
of undue hardship and substantial need and because this work product occurred in preparation of
another litigation. Generally material is considered protected under Rule 36(b)(3) and not
discoverable when a document or tangible thing is prepared in anticipation of litigation or for
trial by the other party’s attorney. These documents or tangible things may be discoverable if the
party can show that it has substantial need for the materials and cannot, without undue hardship,
obtain their substantial equivalent by other means. However, the court must always protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s
attorney concerning the litigation. Here, the strongest argument is that this information, although
possibly protected under the work product doctrine, has not been prepared in advance of this
litigation but instead for a prior litigation. Able would argue that equally important always are
the mental impressions of an attorney and that even though a prior litigation, release of this
information would give Clever access to his and his associate’s mental impressions. However,
the policy argument normally given in support of not disclosing mental impressions of an
imposing attorney is that in doing so, the court would prevent a true adversarial system and
attorneys would unfairly depend on their adversaries to do their work for them. Here the work
product and possible mental impressions are for another litigation and would therefore not
subvert the adversarial nature of this litigation.

Also, even if a judge decides to protect the mental impressions of Able and Brimmer, he would
most likely order most of the material disclosed because of a showing of substantial need and
undue hardship. Given the possible claim in this case of negligent supervision, the information
request[ed] will most likely show a highly relevant fact—the nature of Able’s supervision of
Brimmer. Further, although the information about supervision could be gotten by deposing Able
and/or Brimmer as well as other employee witnesses at the firm, these witnesses would most
likely be hostile thus showing undue hardship. [Several answers noted on this point that
Brimmer was likely to be completely unavailable for deposition, making some information
about her handling of the case impossible to obtain by any other method.] However, it is
more probable that a judge would allow full disclosure of all the material because protecting the
material in this instance does not support the policy reasons underlying the Rule.

Question 4: The issue is whether the plaintiff, Preston, can support his claims for malpractice
and negligent supervision. Here Able will be granted summary judgment on one of his claims if
he can show that there is not a genuine issue as to any material fact for any one of the elements
in that claim. Able can do this either by foreclosing the possibility that Preston can p[r]ove any
one element of this claim (Adickes) or by showing that Preston would be unab[l]e to meet the
burden of persuasion on any one of the elements of his claim (Celotex).

For his malpractice claim, Preston must show whether a reasonable jury could find, by a
preponderance of the evidence: (1) an attorney-client relationship existed; (2) the attorney acted
negligently or in breach of contract; (3) such acts were the proximate cause of the client’s
damages; and (4) but for the attorney’s conduct the client would have been successful in the
prosecution of the underlying claim. Here Able argues that Preston cannot carry his burden of
persuasion as to the second, third or fourth elements of his malpractice claim. Element four will
be the most difficult of the elements for Preston to support and the most likely to fail at trial.
However, if he can present the evidentiary support mentioned below, a court will most likely
find that that he can meet the burden of persuasion on all four elements required in a malpractice
claim [or more precisely, that a jury could reasonably find that he had met the burden of
persuasion through the evidence described below].

First, Able presents evidence supporting that he did not act negligently. His affidavit states that
once he entered an agreement with Preston, he assigned responsibility of the case to Brimmer.
Further Preston agreed to such an arrangement when he signed the retainer letter. He also states
that previously Brimmer had done outstanding work and had required no supervision. Finally he
submit[]s an affidavit from Dr. Smith diagnosing Brimmer’s brain tumor in January 2008 and
stating that her cognitive ability and judgment had likely been affected for several months.
Secondly Able presents evidence supporting the claim that such acts were not the proximate
cause of the client’s damages. He states in his affidavit that Preston admitted that he felt
responsible for the death of Laura Pfeiffer. Therefore it can be infer[r]ed that even if Able had
acted negligently, Preston’s actions cause[d] the damages (the return of a default judgment for
Pfeiffer). Finally, Able rests on the same evidence to support the claim that the client would not
have been successful in the prosecution of the underlying claim. On both the third and fourth
issue though, all Able has to do is point to the inability of Preston to meet his burden. Even if he
had made no statement about Preston’s convers[]ation regarding his responsibility of the action,
Able could still move for summary judgment on these points.

Here the moving party, Able, has carried his burden, meaning that the responsibility then shifts
to Preston, the nonmoving party, to show that there is, in fact, a genuine issue of material fact
(Bias). To adequately respond to a motion for summary judgment, Preston may not rely merely
on allegations or denials in its own pleading or a creation [of] metaphysical doubt, it must set out
specific facts that squarely meet the evidentiary issue raised thus showing a genuine issue for
trial (Bias).

The first element at issue is whether Able acted negligently. The best argu[]ment against this
claim is that ultimat[e]ly a firm is responsible for failed action, for any reason, of one of its
associates. Unexpected illnesses occur in law firms all over the country but there are systems in
place not only to check work and hold the associates accountable, but to protect their clients.
Further, even if the tumor had affected Brimmer’s work for such a long time, her diagnosis in
January of 2008 should have signaled a review of her case load and may have allowed for
enough time to continue the litigation. Here evidence that Preston could submit[] would be
information from other law firms showing the normal practices in the field and their preventative
and protective measures would be the strongest way to counter Able’s claim. [More detail on
the form this evidence would take, e.g., affidavits, deposition testimony, documentary
evidence, would have made this point even stronger.] He may even be able to point to an
internal memo or guide book from Able’s firm. Also, it may be helpful to provide information
regarding the initial litigation and its place in the courts at the time of Brimmer’s diagnosis.
Here, a court would most likely find that Preston had met his burden.

Secondly, Able presents evidence and makes the statement that Preston would not be able to
show that the negligent act of Able proximat[e]ly caused his damages. This claim on the part of
Able and that of Preston’s inability to show that but for the attorney’s conduct the client would
have been successful in the litigation are closely linked. Able essentially makes the same
argu[]ment for both that in addition to not being able to meet his burden on either element,
Preston essentially admitted responsibility thus making him unable to win and the cause of the
damages. Here Preston’s strongest argument is that he would have been successful because of
the contributorily negligent acts of both the park, softball recreation group and the girl’s mother.
Thus, given the foreseeable nature of the injury to Preston because of the negligent act of Able,
Able’s acts were the proximate cause. Preston would need [to] present an affidavit stating that
he felt morally responsible but not legally responsible for the death. He would also need to state
that balls went onto the path frequently. Further, Preston would need to present evidence from
his teammates showing that he had not acted intentionally or negligently in causing harm to the
little girl, that balls hit the path frequently, that the community is aware of the danger. One
witness may be able to state even that the mother of the girl was negligently not paying attention
to her surroundings. He may also be able to present photos showing warning signs to the public
of the possible danger. If Preston presented that evidence, a court would likely find that he had
met the burden on all three contr[o]versial elements.

For his negligent supervision claim, Preston must show whether a reasonable jury could find, by
a preponderance of the evidence: (1) the defendant’s duty to the plaintiff to supervi[s]e a third
party, (2) a negligent breach of that duty, and (3) that the breach directly caused the p[]laintiff’s
damages. Here Able argues that Preston cannot carry his burden of persuasion as to the second
or third elements of [] his negligent supervision claim. Again the most difficult aspect of the
response would be Preston’s burden on the direct causation element. Again, if Preston can
present the evidence suggested both above and the additional evidence below, a court would
likely find that he had met his burden on all three elements of the negligent supervision claim.

First Able argues that [he did] not negligently breach[] his duty to supervise Brimmer. He states
in his affidavit that she had always done good work and that [she] had not needed supervision in
the past. Further he presents evidence that the tumor was diagnosed in January 2008 and that it
had probably affected her cognitive ability and judgment. Secondly, Able argues that even if he
breached his duty to supervise, that this breach did not directly cause Preston’s damages. Able
states in his affidavit that Preston admitted responsibility for Laura Pfeiffer’s death. Thus
implying that Preston was responsible for the damages caused because he would have sustained
the damages regardless of any negligent action on the part of Able. On both points, however, to
meet his burden in summary judgment, Able need only point [to] an element or elements in a
claim where Preston would be unable to meet his burden of persuasion at trial.

Again, Preston would need to respond with specific facts meeting the evidence at issue squarely.
Here, Preston’s best argu[]ment is similar to that above, that other law firms have standards for
protecting their clients in similar situations as this one. If Preston can show that an ordinary
reasonably prudent head attorney would have done things differently, then he can show that Able
breached his duty and acted negligently. The best way to do this is once again presenting
evidence that there are other law firms have preventative and protective measures. [H]e may
even be able to point to an internal memo or guide book from Able’s firm. Finally in order to
show that Able’s breach of duty directly caused Preston’s damages, he can also present the above
information that he was not legally responsible for the death of Laura Pfeiffer and that Able
failed in his duties to represent him by not filing motions etc.

The most difficult aspect of Able’s motion for summary judgment is showing beyond a
preponderance of the evidence that Preston would have won a case again[st] Pfeiffer which
affects element 4 of the malpractice claim and element 3 of the negligent supervision claim.
However, if Preston can present the above evidence, a judge would most likely deny Able’s
motion because Preston would have responded with specific facts squarely meeting the issues
and thus created a genuine issue of material fact on all the elements for both claims.