THE BOSTON UNIVERSITY CIVIL LITIGATION PROGRAM
HOUSING, EMPLOYMENT, FAMILY & DISABILITY (“HEFD”) AND EMPLOYMENT RIGHTS CLINIC (“ERC”)
2011 - 2012
Robert G. Burdick, Director Constance A. Browne Mary C. Connaughton Clinical Associate Professors Mark E. Bamford Visiting Clinical Associate Professor
TABLE OF CONTENTS
Welcome to the Civil Litigation Program! We have prepared this Practice Manual for your use during your time in this course. You may even find it useful in practice after you leave this Program. If you consult this Manual first, before you ask your classmates or your professor, you may find that your questions have already been answered. At least you may find a place to begin looking for the answers to your questions. Your professors will expect that you are familiar with the contents of this Manual. They will assume that you have first consulted it before you consult them. Please do not be surprised if your professor asks you: "Have you looked in the Manual for the answer to that question?"
I. OUR COURSE GOALS
This course has a set of specific goals, which your classroom and field supervision have been designed to fulfill. We believe that it is useful for you to understand why we are doing certain things and why we are not doing others. The relevance and the effectiveness of the classes and the field supervision should be evaluated with these goals in mind. 1. To expose you to the notion that you have a responsibility, as a lawyer, to provide access to justice for all, and that everyone who needs legal services ought to be entitled to high quality legal services. We want to teach you professional responsibility in the broadest sense of that term, as well as how to perform lawyering skills competently in the representation of clients. To that end we will be asking you to question: "If this were my case, what would I expect of my lawyer, and of the legal system?” 2. To teach you to engage in "self-conscious" analysis of each of the tasks you are performing in this course. As part of this goal, you will be asked to reflect on what you are doing in this course and to discuss with your professor what you wanted to accomplish, what you did, why you did it in that particular way, and how you might improve upon it the next time. You should learn what competent lawyering means in the context of each of your cases. You should understand the ethical considerations involved in your lawyering and the restraints imposed by the Rules of Professional Conduct on your actions on behalf of your clients. 3. To develop competence in basic lawyering skills. Because Supreme Judicial Court Rule 3:03 allows you to represent only indigent clients, you will be exposed to the substantive law of a "poverty law" practice. Yet the skills and ethical considerations we try to teach you will serve you well in whatever areas of law you may pursue. We will emphasize pre-trial preparation and negotiation as means to resolve effectively the civil disputes in which your clients find themselves. We will expect that you learn to perform the following list of lawyering skills competently by the completion of the course: a. b. c. d. e. f. Interviewing clients and witnesses; Conducting detailed factual investigation; Analyzing the legal issues present in a case; Doing competent legal research and writing; Evaluating the clients' cases; Counseling clients; 3
SJC Rule 3:07 sets out the Rules of Professional Conduct.6. and that you will comport yourself in the office in the manner we would expect of a lawyer whom we have just hired. At a minimum you must not mention your clients' names or identify them to anyone outside the Program. You may discuss these matters with other students in the Program as well as other professors in the Program because for these purposes we are all members of the same "firm". We expect that you will act as if you were an associate in our "firm. you will be held to the same standards of ethical behavior as every lawyer admitted to the bar in this state. As you can see from reading these rules and orders. If you have ANY questions concerning the appropriateness of your conduct on behalf of a client. You are required to comply with the standards of professional conduct set out in Supreme Judicial Court Rule 3:07.g. CLIENT CONFIDENTIALITY MUST BE MAINTAINED AT ALL TIMES. ASK YOUR PROFESSOR BEFORE YOU ACT.
Preparing a variety of common litigation documents. When in doubt.
Through a combination of classroom exercises and fieldwork on cases. we hope that you learn from your own experience and that you become a "reflective practitioner. Schön. h. Rules 1. No papers or records pertaining to any client's case should ever be left lying around open to view of unauthorized people.
II. We will discuss what these provisions mean throughout the time you are in the clinic.1(b) set forth your obligations with respect to confidentiality. We will expect you to work hard to improve your understanding and your performances over the time you are in the clinic. We do know that you are a student and that you do not have the training or experience to do all of the work required of you in this course without 4
. your professors are subject to severe penalties if your conduct does not conform to the rules. Cases should not be discussed in public or anywhere that a casual observer may overhear the content of your conversations. In the end. you will be given the opportunity to achieve these goals.” We want you to maintain a level of responsibility for your clients' cases that we would expect from a colleague.3 and 4. We will try to help you improve your skills in all areas. Educating the Reflective Practitioner (Jossey-Bass 1987). Conducting hearings and trials. Read it carefully along with the Order Implementing Supreme Judicial Court Rule 3:03. Pre-trial planning and preparation. Thus. This rule is set out for you at the end of this Introduction section. We take this aspect of your performance very seriously. 3. j. that you will meet deadlines that you have agreed to meet. i. err on the side of maintaining silence and non-disclosure until you can speak with your professor. Negotiating. We assume that you will be on time for your appointments. OUR EXPECTATIONS OF YOU
PROFESSIONAL RESPONSIBILITY You are allowed to practice law in Massachusetts pursuant to Supreme Judicial Court Rule 3:03." See Donald A.
You will receive a grade for all six credits at the end of the second semester. We believe that one of the most important things that you should take away from this course is the sense of responsibility a good lawyer has to his or her clients. We will challenge you to think critically about everything you do in this course. We will challenge you to explain why you want to do something in a particular way. For this reason. and we want to review the full time you are in the clinic's performance before we assign a grade to your work on your cases.our supervision. Your grade will be based. or to give out your home phone numbers. We will grade the HEFD students on how well you perform the skills we teach. The reason we wait until the end of the second semester to give you a grade for the fieldwork component of the course is to allow you to develop over time the skills necessary for good lawyering. we have developed a detailed method for working up a case as well as Litigation Packets for each of the types of cases we do which can be found on Blackboard. A very important aspect of your grade will be your willingness to accept responsibility for your clients' cases. you may wish to go to your clients' homes or areas of the city with which you are unfamiliar. 3. We look at the amount of work you have done in the field and the difficulty of that work. Work that demonstrates exceptional effort and exceeds our quality expectations will receive an A. Work that does not meet our expectations in terms of effort or quality will receive a B+ 5
. and lets you know what areas you should try to concentrate upon during the coming semester. in large part. on your ability to meet these challenges. Please do not do so without first speaking to your supervisor so that adequate precautions can be taken to ensure your safety. We feel that you will gain this understanding if we expect you to accept that responsibility early for your clients' cases as well as for your own learning. When staying late at the office. rather than trying to figure this out for yourself. Work that demonstrates a significant effort and meets our quality expectations will receive an A-. 2. We understand that we are asking you to learn and to perform very difficult tasks. you will not receive as good a grade. we assign grades according to the following principles: 1. At the end of the first semester your professor will give you an evaluation in which s/he discusses your perceived strengths and weaknesses. If you wait for your professor to tell you what to do. Finally. We want to be able to look at your performance over time in order to be fair to you. We grade you on how well prepared you are for the work you do.
FIELDWORK CREDITS AND GRADES FOR STUDENTS ENROLLED IN HEFD The fieldwork component of the HEFD Clinic carries six (6) credits. please take precautions so that you will not be leaving alone after dark. We consider your enthusiasm and willingness to take on new challenges in a professional manner. Many times cases have a way of heating up and cooling down during the course of the time you are in the clinic. While working on your cases.
We know that a semester can go very quickly and we want to make sure you we stop and take time to evaluate how things are going. You will receive a grade for these 3 credits at the end your semester. A grade of A+ is given for truly exceptional performance. We will grade the ERC students on how well you perform the skills we teach. We consider your enthusiasm and willingness to take on new challenges in a professional manner. We will challenge you to think critically about everything you do in this course.or lower. Your professor will give you an evaluation in which s/he discusses your perceived strengths and weaknesses. 2. you will not receive as good a grade. A very important aspect of your grade will be your willingness to accept responsibility for your clients' cases. Work that demonstrates exceptional effort and exceeds our quality expectations will receive an A. 3. Your grade will be based. no A+ grades are given. 4. If you wait for your professor to tell you what to do. We grade you on how well prepared you are for the work you do. A+ grades are given very infrequently.
. Your professor will also talk with you about your goals for the remainder of the semester – including the next types of cases you would like to be assigned. in many years. Work that demonstrates a significant effort and meets our quality expectations will receive an A-. Finally. no A+ grades are given. We believe that one of the most important things that you should take away from this course is the sense of responsibility a good lawyer has to his or her clients. rather than trying to figure this out for yourself. A+ grades are given very infrequently. in large part. we assign grades according to the following principles: 1. We look at the amount of work you have done in the field and the difficulty of that work. We will challenge you to explain why you want to do something in a particular way. and lets you know what areas you should try to concentrate upon during the remainder of the semester. on your ability to meet these challenges. Work that does not meet our expectations in terms of effort or quality will receive a B+ or lower. We feel that you will gain this understanding if we expect you to accept that responsibility early for your clients' cases as well as for your own learning. A grade of A+ is given for truly exceptional performance. in many years. 4.
FIELDWORK CREDITS AND GRADES FOR STUDENTS ENROLLED IN ERC The fieldwork component of the ERC Clinic carries three (3) credits.
we can run things better. we will have a message posted on that bulletin board. we are a separate organization from them. and you should make that clear in your dealings with others. As you will see. OR OTHER LEGAL PAPERS MUST BE REVIEWED BY YOUR PROFESSOR BEFORE THEY LEAVE THE OFFICE. This is not a substitute for your obligation to call in to
.WRITING REQUIREMENT During the course. ALL DOCUMENTS. We take that requirement very seriously. If you call in each day for messages from your professor or your clients or opposing counsel. or a legal research memorandum on an area of law which requires in-depth research and analysis may all be ways in which a student can satisfy this requirement. If you are in the law school building. you may use the clinical office phones on the 12th floor of the law school to make your calls related to your Civil Litigation work. Outside of Civil Clinic Offices on the 12th Floor at the Law School is a BU Civil Litigation Program Bulletin Board. most students satisfy this writing requirement through the handling of their cases. LETTERS. SJC Rule 3:03 requires that all of your legal work be supervised by an attorney. reason is to ensure that your professor is an active participant in any litigation for which he or she is responsible. Normally.
OTHER BASIC EXPECTATIONS • As long as you are a student in the Civil Litigation Program. In the absence of your professor. ALL PLEADINGS MUST BE SIGNED BY YOUR PROFESSOR. and more important. PLEADINGS. CONTRACTS. and you should check it for messages whenever you are in the office. It is very difficult to run a law office with more than forty lawyers when most of them are not in the office on a daily basis. YOU SHOULD NOT SAY THAT YOU ARE WITH GREATER BOSTON LEGAL SERVICES [GBLS] OR THAT YOU ARE AN ATTORNEY. The other. One reason for this is to ensure that you receive feedback on written work. YOU SHOULD IDENTIFY YOURSELF TO ANYONE CONNECTED WITH ANY CASE YOU ARE WORKING ON AS A STUDENT ATTORNEY WITH THE BOSTON UNIVERSITY CIVIL LITIGATION PROGRAM. YOU MUST CALL THE OFFICE AND YOUR VOICEMAIL EACH DAY FOR MESSAGES. AGREEMENTS. If there are any emergencies involving one of your cases. A brief to a court or an agency. You will be assigned a mailbox in the downtown office. Although we work out of the offices of Greater Boston Legal Services. You should make a habit of checking it whenever you are in the law school. one of the other professors can sign pleadings that must be sent out quickly. This requirement cannot be satisfied by the use of form pleadings or canned briefs. students in both the HEFD & ERC are required to produce at least fifteen pages of well-written legal analysis.
The computer at the secretary's desk in the 12 floor offices is for the secretary's use and is not available for student use. If you plan to meet a client at B. The procedures for requesting secretarial typing will be set forth in a memo from the secretaries. you may give him/her the law school number so that he/she can contact you in case of cancellation or problems getting to your meeting. Copying at BU requires a four digit code which you must coordinate with the BU secretary. YOU SHOULD BE CONTACTED FOR ALL BUSINESS PURPOSES AT THE DOWNTOWN OFFICE. and any briefs or memoranda to be submitted to a court or an agency. Please try to do your case research copying at GBLS.. They will provide detailed office procedures memos early in the first semester. Your name should be entered next to your client’s name. Copying should be limited to CASE work and not class materials. or your own voicemail number. 8
. You should indicate the phone extension number where you will be working so that they can route calls to you quickly and without having to hunt you down. You will be expected to do all your own typing in connection with materials that go into the case files. The secretaries may type long (over two pages) letters. YOU SHOULD NOT PROVIDE THE BU LAW SCHOOL PHONE NUMBER TO CLIENTS OR OTHER ATTORNEYS. When you are in the downtown office you will be expected to sign in and out on the whiteboard near the secretary’s desk. Your professor must have signed this form as well. however. which authorizes YOU and not some previous student to represent the client. • You will also be assigned a mailbox in in the Civil Clinic Offices on the 12th floor at the Law School. It is important to use this appointment book so that there is less confusion in the event clients arrive before the students. Long distance phone calls that must be made in connection with your cases should be coordinated through the downtown secretaries.U.S. which is the BU clinic extension. Appointments at the Law School should be marked in an appointment book in our offices on the 12th floor. Client appointments downtown should be entered in the appointment book next to the secretary’s desk at least one day prior to the appointment. pleadings. When you give others your telephone number. course materials and other important information in this mailbox. please ask them to use ext. The client signs on the line above the word "client" and on the line indicating U. Please check this mailbox on a regular basis. 1802. You may have limited use of the Program's 12th floor offices. that way we can be sure that you will get a message from those who call you when you are not in the office.the downtown office and your voicemail daily for messages. Each client file must contain a valid Client Authorization of Student Representation form. Please note that the authorization form has two spaces for the client's signature. You will receive messages.
The current eligibility guidelines can be found in this introduction. There may be times. You should approach each supervisory session prepared to discuss why you have done what you have done. When that is not the case. when the client's resources were incorrectly determined or where they change over the course of your representation of the client. This Program is more than a course in the School of Law. Check with your professor before filling out this portion of the form. PROPER DRESS is required. All work you do on your cases should be copied to the “S” drive on the GBLS system. You are at least as responsible as your professor for preventing lectures in the one-on-one supervision sessions. ask your professor for permission to remove it from the file or to copy it. These guidelines place limits on clients' income and resources. You should plan to discuss your ideas with your professor. Detailed checklists are provided in each Litigation Packet. We are concerned that the clients. To that end. At any given time there will be clients coming into and leaving the office. please discuss it with your professor. If the supervisory session goes as planned.citizenship (if appropriate). You should feel free to express your dissatisfaction when you find that your professor is not letting you explain your performance and your future plans for the
. They also limit representation to certain types of cases. • Although our Program is not funded by the federal government. You may not take CLIENT CASE FILES out of the office without first receiving your professor's permission. however. feel that they are receiving high quality service. You and your professor should then jointly CRITIQUE your work in light of the principles of effective performance that we teach in the course. Please note as well that a description of the service to be provided is required. ask your professor. We do not expect you to spend outrageous amounts of money on new clothes. eligibility will be determined prior to your ever seeing the case. you should be doing most of the talking. In the event that you have any questions in regard to eligibility.
III. If you are not sure what that means. OUR SUPERVISORY RELATIONSHIP WITH YOU
Our teaching approach to the fieldwork is to have you first PLAN and then PERFORM. we abide by the GBLS ELIGIBILITY GUIDELINES under which Greater Boston Legal Services operates. someone is not fulfilling his or her obligations to the process. "Lectures" in any form are strongly discouraged because they do not involve your having to test your actual ability to perform. Go to the BU folder on that drive and then create a new subfolder for each client you are handling. If you feel that this will create a particular problem for you. and getting his or her feedback on your suggestions. We must know where the files are at all times. Normally. If you have need of any particular portion of a client file. you should bring them to the attention of your professor. as well as anyone else. It is a law office. we have asked that you dress as you would while working for any large downtown law firm. These checklists can help you in deciding what steps need to be taken to move your case toward completion. and what you intend to do next.
have worked through the analysis involved in each of the following steps while developing your case. we contend that your job is to develop the best "theory of the case" you can with the law and evidence at your disposal and then to sell that theory at every stage of your representation of the client. readily acceptable.
THEORY UNDERLYING CASE DEVELOPMENT We teach a very basic framework for thinking about your job as an advocate. The acronym we use for the "theory of the case" that best meets the test of comprehensiveness. This theory of the case framework is described below. nonetheless. Some will be easier for a fact-finder to accept than others. Some will comport with common sense better than others. concerns and priorities is critical to the attorney's 11
. For more on "theory of the case" and COMPASS see the individual class assignments and readings for the second semester Trial Advocacy course. some of these competing theories will be more comprehensive. Any legal dispute is likely to have many competing "theories of the case". many ideas can be generated for partial theories. the best "theory of the case" available. and it is the attorney's function to obtain this information. Thus. persuasiveness. Some of these partial theories will include more of the known facts than others. Due to time and other constraints. simplicity and sufficiency is "COMPASS. we will be asking you to use your COMPASS to begin to define. HOW TO HANDLE A CASE
We have developed an eight-step process for working through any case that is assigned to you in this course. acceptability. not all steps may be employed for each case. information gathering functions best if the client feels comfortable to be an open. persuasive. We ask you to use these eight steps to develop your case within a “theory of the case” framework.” From the very beginning of your representation of your client. You should. We feel that by requiring you to put into writing your thoughts and plans we will be better able to help you achieve your goals. simple and legally sufficient than others. The case development process that follows is premised upon a set of underlying assumptions and values. A "theory of the case" as we use it is a symbol or metaphor that describes the legal dispute simply. Among these are the beliefs that: 1. Stated simply. and then to refine as more information is learned by you. The steps that follow set out our preferred method for working up our cases. clients know the "facts" and events giving rise to their problems. Written work provides a solid basis for discussion. This process involves written work from you in the form of memoranda. in non-legal terms.IV. You should become familiar with these steps. Some will fit the legal requirements (elements or prima facie case) better than others. By using the problem solving technique of brainstorming. however. a clear understanding of the client's goals. honest. which you will see discussed in the required and recommended readings set out in the syllabus and the Class Workbook which describes your class assignments in detail. 2. forcefully. 3. and active participant in the problem-solving process.
The case development materials that follow. they are intended as a starting point. you will be able to develop a case development strategy that meets your needs most effectively. It is our expectation that. However. will provide you with a set of steps to help ensure that you will be able to provide competent representation to your clients. given the necessary information.
. most clients are capable of making decisions about their own problems. and 4. as well as the assigned readings. with experience.ability to help the client frame and resolve her problems.
You will also be asked to engage in some self-critique. Remember that this is a document that should assist you in conducting the interview. bibliographies. We do ask that you do some preliminary research to prepare for the interview. Many times lawyers with far more experience than you have now will have to conduct an interview when they are not totally familiar with the particular area of law involved. which contain. and checklists that will help you prepare most of the types of cases. Plan which techniques. although he/she will generally not participate until you have completed your interview. In class you will read about questioning skills and discuss interview models. All interviews must be conducted in private to protect the client's right to confidentiality. which you will be assigned. After your initial interview you will talk with your professor in order to determine if any immediate action needs to be taken to preserve the client's rights. Did the interview go as you had expected? How did you plan for it? Were you able to execute your plans? How fully were you able to engage the client's participation? Do you think you have a sense of how the client feels about the situation? Why do you think this? How completely have you been able to obtain the necessary information? What do you think must be done now? We place as much emphasis on your ability to reflect critically on your performances as we do on the skills you exhibit in the performances themselves. which does not assume that you know all the relevant law before beginning the interview. you should read it very carefully before you plan your initial interview.*STEP ONE: THE CLIENT INTERVIEW PLAN This is the step at which you begin to develop information to test possible “theories of the case. we have also provided you with a set of Litigation Packets. and then quickly to learn the relevant law and obtain whatever additional information you might need. As you prepare. The necessary skill is to have a method that will help you obtain lots of detailed information. We will ask you to prepare a "Client Interview Plan" before every initial client interview you do in the field. outlines. These readings present different frameworks for how to interview and counsel clients. such as active listening. among other items. In addition to this Manual. If you are assigned a case in an area covered by one of the Litigation Packets. We expect you to learn these frameworks. try to put yourself in your client's position and think of problems that may arise in obtaining information. Your Client Interview Plan should focus on how you will obtain the detailed and complete information you need to assist your client. may be useful to facilitate the flow of information and the building of rapport. Reading this packet will help you to generate ideas about the information you will need to gather during the interview.” We will present one interviewing method. but you are free to try to do better if you feel you can. We will provide the necessary space for interviews at the office.
. Your professor may sit in on your interviews.
b.A CLIENT INTERVIEW PLAN FORMAT TO: FROM: RE: DATE: I. What happened to cause you to seek an attorney's assistance? What is your ideal outcome? What goals do you want to achieve? What concerns do you have about resolving this problem that you want to avoid? What ideas and alternatives do you have about how we may solve your problem? What other concerns (both legal and non-legal) do you have that Client Interview Plan
.) II. (List the black letter law elements of each of the legal theories in the previous section. and defendant's affirmative defense and counterclaims that may be applicable based on what you know about the client's problem so far. Preliminary Problem Identification (Be sure to consider asking the client the following in your plan:) a. these elements will help you identify topics to T Funnel.) B. statutes. Introductions and Greetings (State how you will greet the client and start the interview. The Apparent Problem (Describe what you know about the client's problem so far and any deadlines.g. rules of court.) C. e. Preparatory Explanations and Agenda Setting. annotating each element to the source of legal authority that supports it (e. regulations. The Law A. The Interview Plan A. Break these Theories into their Prima Facie Cases.) B. cases. III. (State how you will describe and negotiate the agenda for this interview with your client. List the Legal Theories.) When you get to the T Funnel planning portion of this memo. (Include every plaintiff's claim. d. Information Gathering 1. Also consider how you will use preparatory explanations to transition from one phase of the interview to the next throughout the interview. c.
moving to narrow and yes/no questions to establish details.we should know about? 2.
b. witnesses. In identifying topics. Use Open Questions to advance the story and "Book-end" Questions to spot gaps in the time line.
Probing for Details a.
D. etc. go back to the elements of the legal claims set out above which you will need to prove. documents.
b. Other types of factual overviews may also be used. We use a “head to toe” overview to obtain a complete list of the client’s ailments in SSI cases. You will want to develop T funnels for each of these legal clients. and a “running the mile” overview in housing cases to obtain a complete list of all housing code violations. You will also want T Funnels for events. 3. together with a proposed time frame for taking these steps. Adjourning. as well as any legal advice you may want to provide. Concretize the next steps that you and/or the client will be taking before your next contact. "Work the list" by drafting questions to ask about each topic. Time Line or Other Factual Overview a. Identify when the "problem" began and then develop a thorough and systematic time line of events to obtain a complete chronology. Draft a list of T Funnel topics you want to use to probe for detail in their order of probable importance.
. Introduce each T Funnel with open questions allowing the client to provide a mini-overview.
and submit a copy to your professor for review. Organize ALL OF the facts of the case in an orderly statement. inconsistencies. III.*STEP TWO: THE OPEN FILE MEMO As soon as possible after the interview. You should be prepared to discuss the Open File Memo with your professor. To update new information. Use it to spot gaps and inconsistencies. A detailed Open File Memo also permits you to organize and characterize a body of facts in a way most favorable to your client's interests. You should attempt to make each of your Open File Memos as organized. List WITH SPECIFICITY the sources of legal authority that you intend to research in order to develop legal theories and solutions to your client's problem.
. Prepare a detailed Time Line (Chronological Overview). List the possible alternative courses of action that the client may consider taking to resolve the problem.
V. you should complete the Open File Memo while the interview is still fresh in your mind. List with specificity the legal research that you have already done. It helps you organize your thinking about the legal and non-legal aspects of the case. These memos ensure that the information you obtain will not be "lost" to subsequent students. complete and detailed as possible. THIS IS THE PLACE TO PROVIDE AS MUCH DETAILED INFORMATION AS YOU CAN. or any other facts or information that you need to ask the client about in subsequent telephone or face-to-face interviews. List WITH SPECIFICITY the sources of factual evidence you intend to investigate in connection with the case. II. you will do additional memos in the file. and plan your factual investigation/discovery as well as your legal research. It also provides an opportunity to spot gaps. Our goals for this memorandum are as follows: Open File Memo I. IV. Over time you are likely to learn new facts about the case. You may be asked why you included what you did and why you excluded certain matters. It is hoped that by explaining your choices you will be developing good analytical and organizational skills. This document serves as the most comprehensive statement in your file of the facts of the case. Keeping case information as complete and up-to-date as possible is critical in view of the fact that many of our cases will not be completed during your time in the clinic.
Possible Alternative Courses of Action (Brainstorm possible alternatives available to the client given what you know of his/her goals and concerns from the Preliminary Problem Identification that you conducted in the initial client interview.) IV. based on what you know now.) III. Plan for Further Legal Research (Identify and list all additional legal theories suggested by the facts as you now know them. Facts of this Case (Write out all of the important "facts" of this case in an organized and easily understandable fashion.) V.)
II. Where Appropriate.)
. Plan for Further Fact Gathering (Brainstorm and list all existing or potential additional sources of evidence you may need.AN OPEN FILE MEMO FORMAT TO: FROM: RE: OPENING FILE MEMO
DATE: I. Draft Time Line of Key Events (Or Other Overview.
counterclaims. and affirmative defense under that theory. you will be asked to draw conclusions as to the viability. not merely those pertinent to your client's side of the case. you must understand all the claims. counterclaim. use full and proper citations. To the extent that you have not already done so in your Client Interview Plan. Although this is a document for internal file use. statutes. strengths and weaknesses of each claim. and defenses that either side may have in the case. Finally. You should record the relevant legal authority for everything you write. (NOTE: When you cite to cases. counterclaim. you will save time later when you have to convert your legal research into a brief or memo to the court if you have properly cited your authority the first time).
. you need to identify each element of each claim. You will then analyze the elements of each theory and how the facts of your case establish or refute that claim. or any legal authority in your Legal Research Memo. In order to be able to advise a client properly. and defense that must be shown to make out a prima facie case.* STEP THREE: THE LEGAL RESEARCH MEMO The next step is to expand upon the possible legal theories already identified in your Client Interview Plan.
affirmative defense and counterclaim. breaking each down into its elements. each broken down into its elements. Questions Presented: What are the Claims and Elements? (Ask what claims the potential parties have based upon the facts and the law you have identified in your Client Interview Plan [Step 1] and your Open File Memo [Step 2].) II. state your conclusions based on the legal analysis in part III. list all legal claims (Plaintiff's and Defendant's) you have identified. Brief Answer: Identify the Claims and Elements. (Looking back at your Client Interview Plan and Open File Memo.) III. counterclaim you have identified.A LEGAL RESEARCH MEMO FORMAT TO: FROM: RE: DATE: I. Analysis: (Analyze the law as it applies to the facts as you know them. Conclusions: (For each claim.) IV. This usually means for this memo explaining what the legal authority is that says that each element is required to be proven for this legal theory. Also.) LEGAL RESEARCH MEMO
. Add any new theories that may have occurred to you. Also ask what the elements are for each claim. affirmative defense. cite legal sources for all elements of every claim.
With the Case Evaluation Memo you can also focus more attention on those factual propositions that are likely to be contested. Boston. In translating elements into factual propositions. Thus in a housing case. you can begin to identify the evidence in your case that will either prove or disprove the proposition. or a thing. cite to legal sources and analyze every claim. and counterclaims of both parties.” The Case Evaluation Memo focuses on translating the black letter legal elements of claims (see Legal Research Memo) into the specific factual context of your case. By focusing on sources of evidence to prove "facts. you will want to revise the Case Evaluation Memo to reflect your new understanding. for which there is evidence both to prove and to disprove.” it allows you to identify the potential evidentiary problems each side may have if the case goes to trial. you will notice that some propositions are very unlikely to be contested. affirmative defenses. The rules of evidence in your jurisdiction determine its admissibility. Since these propositions are the ones that are most likely to be contested at trial. In the Case Evaluation Memo format that follows. break into elements. How you foresee these problems being resolved at trial helps you to predict the likelihood that the party with the burden of proof on any proposition will be able to meet that burden. The Case Evaluation Memo allows you to analyze all available and potentially available evidence to both prove and disprove every element of all claims. In moving from factual propositions to sources of evidence. you will notice that we speak of “factual propositions. Using discovery techniques like Requests for Admissions can help you to nail down these uncontested factual propositions. It also assists in identifying additional discovery to be done. Those factual propositions should be considered for inclusion in a Stipulation of Fact for use at trial. Jones signed a lease with Mrs. #1 at 66 Sixty Street. the legal elements “a landlord/tenant relationship existed” can be converted into the factual proposition “Mr. Focusing on sources of evidence also assists in identifying additional discovery that can be done to help strengthen your case or undermine you opponent’s. 2000. we believe that it is important to begin preparing your Case Evaluation Memo or its equivalent at the earliest possible opportunity. For these reasons. Until you have done so. focusing on them is a more efficient way to use your trial planning time.
. negotiate or try the case. Smith to occupy apt. “Evidence” is used to prove that fact. It provides a framework for determining what witnesses to call. you can begin to identify the potential evidentiary problems each side may have if the case goes to trial. a document. e.g. for instance. what testimony to elicit from them and what documents to introduce. Evidence can be testimony. affirmative defense and counterclaim is so that you will be in a position to begin to evaluate your client's case. MA on April 1. you are not prepared to counsel. It is important to understand the difference between “facts” and evidence. As you learn more about the case.” With this specific factual detail.*STEP FOUR: CASE EVALUATION MEMO The reason we have asked you to identify. His/her predicted inability to do so will factor into your evaluation of the strengths and weaknesses of both parties’ cases. A “fact” is derived from someone’s perception or understanding of events.
with cites to the source of legal authority for each theory. documents. statutes. 6. Identify the probable and possible evidence to prove and disprove each specific “factual proposition” indicating the sources of this evidence. regulations. Identify any plausible evidentiary problems with the admissibility of the evidence to prove and disprove each specific “factual proposition”. 5. Break each “legal theory” down into its most basic “legal elements”. with cites to the source of legal authority for each element. Evaluate the probable outcome of proving each “factual proposition” in percentages. e.
. e. real evidence. testimony of X. Convert each “legal element” into case specific “factual propositions”. case law. We have provided you with a sample format of a Case Evaluation Memo.A “CASE EVALUATION MEMO” CHECKLIST 1. 3. with cites to the legal authority for the rule of evidence in question.g. 4. 2. Identify all of the probable “legal theories” implicated by the case.g.
b. List Specific Sources of Evidence to Disprove Together With a Brief Summary of the Substance of the Evidence and any Anticipated Admissibility Issues. IV. For Each Factual Proposition. A.
. CASE EVALUATION MEMO
For Each Factual Proposition. List Elements of Each of the Plaintiff's and the Defendant’s Claims and Relevant Law. c. Witnesses Documentary Evidence Real Evidence Stipulations Additional legal research needed Additional discovery needed Prediction of outcome at trial. (Here list the elements of each of the Plaintiff's and Defendant’s Legal Claims and the Relevant Law from your Legal Research Memo [Step 3]. on this factual proposition. in percentage terms or other language of probability.
Recommendations and Probable Outcome in Court for this Element a. a. Witnesses Documentary Evidence Real Evidence Stipulations List Each Factual Proposition From III above. d. b. 2. (Here list all of the Plaintiff's and the Defendant’s Legal Claims from your Legal Research Memo [Step 3]. c. List Specific Sources of Evidence to Prove It Together With A Brief Summary of the Substance of the Evidence and any Anticipated Admissibility Issues. c.) III. a. b. Recast the Elements of Each of the Plaintiff's and the Defendant’s Legal Claims into Case-specific Factual Propositions.) II. Analyze the Evidence to Prove and Disprove Each Factual Proposition 1. List the Plaintiff's and the Defendant’s Legal Claims.A CASE EVALUATION MEMO FORMAT TO: FROM: RE: DATE: I. d.
Overall Conclusion for Defendant. summarize your “working theory of the case” for your client.V. and counterclaims] describe: 1. A. C.] Based upon the above analysis. 2. affirmative defenses. affirmative defenses.
. 3. and counterclaims] describe: 1. Based on the evaluation of all of the Plaintiff's Legal Claims [whether claims.
Overall Conclusion for Plaintiff. Based on the evaluation of all of the Defendant's Claims [whether claims.] B. Best realistic outcome at trial Most probable outcome at trial Worst realistic outcome at trial
[Include both legal and non-legal consequences where appropriate. Best realistic outcome at trial Most probable outcome at trial Worst realistic outcome at trial
[Include both legal and non-legal consequences where appropriate. 2. 3.
. c. section 5 3. G. c. Higgins Case Evaluation Memo October 27. The Defendant’s Legal Theories 1. M. L. The Plaintiff’s claim for non-payment of back rent as part of a tenancy at will 1. breach of contract. The tenant did not pay the agreed to contract rent. section 5 2. c. List All “Legal Theories” Raised by this Case (A “legal theory” is defined here as a set of legal elements provided by some legal authority to support a claim or an affirmative defense. L. G. G. 186.) A. The Plaintiff’s Legal Theories 1. The parties had agreed to the contract rent.A SAMPLE CASE EVALUATION MEMO FOR MARTINEZ VS. A counterclaim for a breach of the implied warranty of habitability II. e. M. A tenancy at will existed between the parties at the time the tenant did not pay money to the landlord for rent. There are many other legal theories that could have been asserted by the defendant based on the conditions in his apartment. M. 186.) To: From: Re: Date: Bob Burdick Jared Steele Martinez vs. statute of limitations. HIGGINS (This is a very abridged “case evaluation memo”. L. violation of the consumer protection statute. A claim for use and occupancy for a tenancy at sufferance B. A claim for non-payment of back rent as part of a tenancy at will or in the alternative 2. 186. List Each Element of Each of the Plaintiff’s and the Defendant’s “Legal Theories” A. 2009
A lawful tenancy existed between the parties at the time these conditions existed. 186. 184 (1973) 2. Id. The Defendant’s claim for a breach of the implied warranty of habitability 1. Id. The lawful tenancy was terminated by a legally sufficient written notice by one of the parties. Id. 872. The tenant stayed in the apartment. Div.A.. Hemingway.
The Plaintiff’s claim for use and occupancy for a tenant at sufferance 1. The landlord knew or should have known about the existence of these conditions. These conditions were not caused by the occupants. 1958) 16 MassAppDec 16 2. G. sections 3.
C.E.2d 843 (C.2d 831. L. section 3. G. at 862 3. 13 3. c. L. c. Boston Housing Authority v. Kaseta v. H. at 864 4. Dale v. 363 Mass. 136 F. M. Conditions existed on the premises which were serious enough to materially diminish the use and enjoyment of the apartment for its occupants. M. c. M. Brockton Lithuanian Citizens Association (App. but did not pay the fair rental value for the premises when he continued to occupy it. L. at 864 5. Inc.B. at 873
. B. The premises had a fair rental value for occupying it after the lawful tenancy was terminated. 186. Id. section 3. There was either an agreed to contract rent for the premises in question or there was a fair rental value for the premises at the time these conditions existed. G. 186. 1998) 4.. 293 N. A lawful tenancy had existed between the parties before it was terminated by one of them. Smith Co. Id.
The premises were worth less than the contract rent or the fair rental value as a result of the existence of these conditions.. Martinez and Mr.6. The tenant occupied the premises from February 1. The Plaintiff’s Claim for Back Rent 1. 3 The tenant did not pay any rent or perform any superintendent services from January 1. 2009. 2009 to March 31. 2. 2009 to February 1. The Defendant’s Claim for Breach of the Implied Warranty of Habitability
. Mr. A tenancy at sufferance existed from February 1. 3. 2009 was $1. 2009 between Mr. The Elements of Each “Legal Theory” As Case-Specific “Factual Propositions” (A “factual proposition” here is the “legal element” that has to be proven converted into its essential case specific facts. Id. The contract rent for Mr. Martinez and Mr. 4. Higgins from January 1. 2009 to March 31. 2009. A tenancy at will existed between Mr. Higgins’ apartment from February 1. 2009. 2009 to February 1. C. 2009 to March 31.000 a month.000 a month. 2009 was $1. no more and no less. The Plaintiff’s Claim for Use and Occupancy 1. 2.) A. Higgins did not pay anything for use and occupancy between February 1. 2009. at 876 III. Higgins’ apartment from January 1. B. Higgins after the landlord lawfully terminated the tenant’s tenancy at will. 2009 to February 1. 2009 and March 31. The fair rental value of Mr.
5b. 2009. A tenancy at will existed between Mr. Martinez and Mr. A tenancy at sufferance existed between Mr. The occupants of his apartment did not cause the mice infestation. The occupants of his apartment did not cause the cockroach infestation. 2009. 1b. Higgins from February 1. 2a. 2009. Higgins from April 1.1a. 2009 was $1. Mr. Serious mice infestation existed throughout Mr. 2009 to March 31. 2009 was the equivalent of $1. Martinez and Mr. The landlord actually knew about the serious cockroach infestation in her apartment at the inception of her tenancy to the time he moved out on March 31. Higgins’ apartment was worth an average of twenty five
. 2007 to March 31. The landlord actually knew about the serious mice infestation in his apartment from the inception of his tenancy to the time he moved out. 3b. 2009 through January 31. 4b. 6. Higgins’ apartment from April 1. The fair rental value of Mr. 2009 and March 31. 2b. 3a. Serious cockroach infestation existed throughout Ms. Higgins’ apartment from the inception of his tenancy on April 1. 2007 to the time he moved out. 2007 through January 31. 2009 4a. Higgins’ apartment from the inception of his tenancy on April 1. 5a The contract rent for Mr.000 a month. Higgins’ apartment from February 1.000 month.
Higgins’ apartment for January 2009 was $1. The Evidence to prove this factual proposition i. 2009 to February 1. Martinez before the tenancy was terminated. 2007 to March 31. Higgins from January 1. 2009 as part of Mr.000. The contract rent for Ms. unless the landlord tries to argue that the employment contract did not include the right to stay in the apartment after it was terminated 2.
. Evidence of “reasonable rent” might be the same as evidence of the fair rental value of the apartment. 2009 to February 1. Analyze the Proof for Each “Factual Proposition” A. The Evidence to prove this factual proposition i. The Plaintiff’s Claim for Back Rent 1. Martinez and Mr. The parties should stipulate to the existence of a tenancy at will from January 1. 2009. a. a. None.000 worth of superintendent services or rent. IV. It is not clear that the landlord has any evidence as to what the parties agreed would be the rent if the tenant did not perform superintendent services.percent less per month than the contract rent and its fair rental value from April 1. A tenancy at will existed between Mr. The Evidence to disprove this factual proposition i. b. 2009 for a total diminution of $6. Higgins’ oral employment contract with Mr.
The Evidence to prove this factual proposition i. The Evidence to prove this factual proposition i. a. 2009 and March 31. The Plaintiff’s Claim for Use and Occupancy 1.000 a month. The Evidence to disprove this factual proposition. i.(See below. 2009 was $1. A. The Evidence to disprove this factual proposition. 2009 between Mr. The parties will stipulate that the tenant offered to pay $850 for January 2009 but the landlord refused to accept it. Stipulated to b. The Evidence to prove this factual proposition i. a. 2009. B. Stipulated to b. The fair rental value of Ms. i. None I know of 3 The tenant did not pay any rent from January 1. Higgins after the landlord lawfully terminated the tenant’s tenancy at will. i. Martinez and Mr. Higgins’ apartment from February 1. A tenancy at sufferance existed from February 1. The Evidence to disprove this factual proposition.) b. None 2. An expert in rental property in East Boston will need to testify
. this is irrelevant. a. 2009 to the March 31. Arguably.
could testify that the two bedroom apartments in the same building rent for $1. You subtract any diminished value due to poor conditions for the fair
. You do not ask the question: “What would be the fair rental value of an apartment with mice and roaches? McKenna v. It will take another expert to testify that the fair rental value was less than what the landlord’s expert said. if any. a. b. like the owner of the building. Begin II says you can’t rent the apartment “as is” for a reduced rent.000 a month in support of her expert opinion of what the fair rental value of the apartment was.to the fair rental value of this apartment during this period. Someone would have to testify from personal knowledge how much the apartments were renting for. Martinez probably cannot satisfy the foundation for being an expert on this topic. i. (It is important to note that computation of the fair rental value of an apartment assumes that the apartment complies with the State Sanitary Code. A. The Evidence to disprove this factual proposition. The expert. Mr.
) 3. The Defendant’s Claim for Breach of the Implied Warranty of Habitability 1a. 2009. Higgins did not pay anything for use and occupancy between February 1. 2007 to March 31. 2009.rental value. The Evidence to disprove this factual proposition. The tenant occupied the premises from February 1. Mr. Serious mice infestation existed throughout Mr. a. Higgins’ apartment from the inception of his tenancy on April 1. 2009. The Evidence to prove this factual proposition i. A housing inspector who was in the apartment might be able to certify evidence of mice infestation that he observed. None 4. None C. 2009 and March 31.
. Stipulated to b. It is a two step process and not a one step process. Higgins will testify from his own personal observations to seeing mice and killing dozens of mice over the two years as the building superintendent. The Evidence to prove this factual proposition i. Stipulated to b. a. ii. Mr. 2009 to March 31. The Evidence to prove this factual proposition i. i. i. a. The Evidence to disprove this factual proposition.
Higgins might have a container in which he collected mice dropping left on his counters in his apartment. Martinez might on cross be willing to describe seeing mice in the building during the tenancy. i. He would have to lay the foundation this into evidence. The occupants of the apartment did not cause the mice
.) for getting “real
b. A. 2a. Mr. (The court may not want to retain this evidence”. iv. L c. Martinez might want to testify to not seeing mice in the tenant’s apartment. Mr. Mr. See M. A. Higgins might have photographs of mice or mice droppings which he could lay the foundation for. G. v. Mr. A. section 8A. vi.iii. 239. It is not inadmissible hearsay because it is a public record. A certified copy of the housing inspector’s report would be prima facie evidence of the conditions described in the report. The Evidence to disprove this factual proposition. Mr. Higgins might describe seeing a periodic reduction in evidence of mice infestation. ii. He would have to lay a foundation that he had actually been in the tenant’s apartment.
A. The landlord actually knew about the serious mice infestation in his apartment from the inception of his tenancy to March 31st. The Evidence to disprove this factual proposition.infestation. Martinez might be able to testify to seeing conditions in Mr. Mr. Mr. The Evidence to prove this factual proposition i. Martinez to Mr. The Evidence to prove this factual proposition i. Higgins about a need to exterminate
. b. Higgins’ apartment that could attract mice. Higgins could describe his house keeping procedures and efforts he made to discourage the mice. B. a. a. Statements by Mr. Mr. The housing inspector might be able to testify that he saw no evidence the conditions in the apartment were attracting mice. i. Complaints by the tenant would not be hearsay because they wouldn’t be offered for the truth of the matter asserted. ii. Higgins could testify to complaining to Mr. 3a. Martinez and working for Mr. Martinez to exterminate for mice.
V.) What are the chances the court will find the following factual propositions to be “true”? 1a. The landlord actually knew about the serious mice infestation in
. The Evidence to disprove this factual proposition. This helps with negotiating and with client counseling. Same as for mice ………………. 50/50? 3a. We quickly see that there are very few “facts” in dispute. Higgins’ apartment from the inception of his tenancy on April 1.. Higgins might testify that he got rid of the mice at least temporarily. Serious cockroach infestation existed throughout Mr.for mice would be admissible hearsay as admissions by a party under state law. a. Assess the Probable Results of Proving Each Factual Proposition At Trial (A quick review of this “Case Evaluation Memo” reveals that most of the factual propositions to be proven are stipulated to. 2009. The Evidence to prove this factual proposition i. Higgins’ apartment from the inception of his tenancy on April 1. i. 2009. Mr. 2007 to March 31. 2007 to March 31. This process of focusing helps us organize our openings and closings by concentrating our attention on those leverage points that matter to the outcome. 1b. This process allows us to efficiently narrow in on the decisions which the court has to decide and to assess the parties’ chances of prevailing on those facts by looking at the evidence to prove or disprove them. b. Serious mice infestation existed throughout Mr. 100 % 2a. The occupants of his apartment did not cause the mice infestation.
100 % 4b.this apartment from the inception of his tenancy to the time the tenant moved out. 100 % 5a The contract rent for Mr. 90 % 6. 2007 to the time he moved out. 2009 and March 31.000 a month. The occupants of his apartment did not cause the cockroach infestation. Serious cockroach infestation existed throughout Mr. Higgins’ apartment was worth an average of twenty five percent less per month than the contract rent and its fair rental value from April 1. Higgins’ apartment from the inception of his tenancy on April 1. 2009 to March 31. Based on the evaluation of all of the Plaintiff's Legal Claims 35
. 2007 to March 31. The fair rental value of Mr. Higgins from February 1. 100% 1b. (10 % seems more probable. Higgins from April 1. Conclusion
Overall Conclusion for Plaintiff. 25 % seems high. 51%) VI. 2009. 2007 through January 31. 2007 through January 31. A tenancy at sufferance existed between Mr. 100 % 4a. 100 % 2b. A tenancy at will existed between Mr. 2009 for a total diminution of $6. Martinez and Mr. 50/50 3b.000.000 month. Higgins’ apartment from February 1. 2009 was $1. 2009. A. 2009. The landlord actually knew about the serious cockroach infestation in the apartment at the inception of the tenancy to the time the tenant moved out on March 31. Martinez and Mr. 50/50 5b. 2009 was the equivalent of $1. Mr. Higgins’ apartment from April 1.
Worst realistic outcome at trial The most probable result for the landlord is a finding that the tenant owed him ____ % of the contract rent of $1000 a month for January through March 2009. and counterclaims] describe: 1. Overall Conclusion for Defendant. Worst realistic outcome at trial See the above. affirmative defenses.
3.”. Most probable outcome at trial See the above. 2.
Most probable outcome at trial The most probable result for the landlord is a finding that the tenant owed him ____ % of the contract rent of $1000 a month for January through March 2009.] B. the tenant “This is a case of a neglectful landlord to delegated too much responsibility to an untrained live in superintendent. Based on the evaluation of all of the Defendant's Claims [whether claims. Based upon the above analysis. summarize your “working theory of the case” for your client.
[Include both legal and non-legal consequences where appropriate.] C.
Best realistic outcome at trial The best realistic outcome for the landlord is a finding that the tenant owed him ___ % of the contract rent of $1000 a month for January through March 2009 because the tenant was at fault for not exterminated properly. [Include both legal and non-legal consequences where appropriate.1. Best realistic outcome at trial See the above. because he had some responsibility as the owner to see that the premises were properly maintained. because he had some responsibility as the owner to see that the premises were properly maintained. 3.
*STEP FIVE: DISCOVERY PLANNING MEMO One goal of discovery is to obtain as much information as possible about your opponent's case (the same process applies to developing your own case.g. the same information gathering techniques set out in the interviewing model you will learn in the clinic (overviews followed by T Funnels culminating in leading questions to lock in the specific details) apply. requests for production of documents.
. or requests for admissions). after litigation has begun. We believe that the Discovery Planning Memo that follows will help you to accomplish these discovery goals by focusing on your best Theory of the Case and requiring you to brainstorm for possible additional evidence. interrogatories. although formal discovery techniques may not be necessary). In both instances. in talks or negotiation session Clue Searching with the other side. depositions. It can also be done formally. A second goal of formal discovery is to "cement" a witness' story for later use in crossexamination at trial. Discovery for this purpose can be done informally. The credibility checklist will also help you to develop cross-examinations and to better prepare your own witnesses for trial. pursuant to the applicable procedural rules (e.
3. In implementing your discovery method. DEVELOPING THEORIES OF THE CASE 1) 2) B.
E. state which you will utilize. 38
A. those underlying any theories for affirmative defenses).)
DISCOVERY PREPARATION (Be sure to review all documents available to you at this time for additional questions they may raise that will need to be included in your plan. Brainstorm for additional facts that may make this witness' version of events more likely (e. Proc. List those elements necessary to your opponent's TOTC and subsidiaries. Identify all factual propositions that are likely to be contested by the opposing side. e.)
List all legal elements
Convert legal elements listed above to factual propositions to be proved.g. proceed through the plan in Section II below. Civ.
Brainstorm and list any potentially obtainable additional sources of evidence to prove each side's contested factual propositions. (If more than one method is available. list methods of obtaining it (e. those factual propositions that you do not expect can be stipulated or for which evidence to disprove may or does exist. For each item of evidence identified in §§ D and E. interrogatories. other list-making device) to get as complete an overview as possible of this witness' knowledge relating to the contested factual proposition. A. Bergman's "especially when's"). or equivalent body of procedural rules). 1) 2) 3) 4) witnesses to prove your version documentary or real evidence to prove your version witnesses to prove opposing version documentary or real evidence to prove opposing version
D. (List those elements necessary to your TOTC and any subsidiary TOTC's (e.A DISCOVERY PLANNING MEMO FORMAT I. 26-37. SEE Case Evaluation Memo. how you plan to sequence them. request for production of documents.
Solidifying Helpful Evidence
.g. C. F. 1) 2) II. and why.) For each identified or potentially available witness to a contested factual proposition: 1.g. etc.R. SEE M. list all relevant known sources of evidence. time line. Prepare a plan (e. Briefly summarize facts to which this witness may testify that support your version of events.g.g. 2. For each contested factual proposition.
develop a T Funnel that begins with open questions and proceeds to narrow questions for detail. Briefly summarize facts to which witness may testify which undermine your version of events.g. For each fact. what details can the witness testify to that will bolster his credibility? (e. "Cement" helpful information for use in cross-examination at trial (e. others present where event occurred. is this consistent with the normal practices of police officers in interrogating suspects. and if not. stress. when event occurred. etc. hearing or vision problems. if witness police officer says he made no notes or tape recordings while interrogating a suspect. recall of exact words spoken. 5. 6. etc. employing "anything else" questions to exhaust the witness' knowledge). lighting. witness fatigue. ending T Funnels with leading questions. Where necessary for any document identified above.
e.g. weather conditions. if any.
d. are there for the witness' remembering these facts or details? What inconsistencies are there within this witness' testimony? What inconsistencies exist between this witness' actions.
Identify T Funnel topics you wish to investigate.
Undermining Harmful Evidence For each identified known or potentially available witness to a contested factual proposition 1. i. h. Testing Credibility of Witnesses Who Dispute Your Evidence (Credibility Checklist) a. use of drugs or alcohol.g.
B. For each topic. by isolating and repeating in a question each item of helpful information separately. perceptions or beliefs and those of third parties? What motives or reasons might exist that would lead this witness to lie or distort his/her testimony? What reasons might exist to explain why this witness' actions. perceptions or beliefs are inconsistent with the normal customs or practices of those in the witness' position (e. what circumstances could have affected the witness' physical ability to perceive? (e. etc. what circumstances could have affected the witness' mental ability to perceive? (e.4. list foundational elements to which this witness can testify to ensure your ability to use the document at trial. Be sure to add these questions to your plan.
.) For each fact.) For each fact.g. f. b.) What reasons. emotional problems. why might 39
T Funnels and cementing questions you wish to use. Brainstorm and list circumstances that may make this witness' harmful testimony less likely to be true (e. a. 2.
. Using the preceding 9 questions. and cementing questions you wish to use.
Explaining Away Harmful Evidence That You Do Not Have Evidence to Dispute. identify overview devices. identify overview devices.g. T Funnels.
b.he have acted as he did?) j. Bergman's "except when's") Using the preceding.
We believe that it is a part of your professional responsibility to determine if a case can be settled well to your client's satisfaction.4. Although you are considered the expert on the issue of legal advice.
. For further discussion about the counseling process. it is your client who must make the ultimate decisions in the case. See Rules of Professional Responsibility Rule 1. Counseling and Negotiating”. you will be able to begin the process of framing your client’s problem. and “Problem Solving in Interviewing. see the Bibliography of Recommended Books and the Suggested Readings on Class Topics sections on counseling. For instance. Ch. identifying solutions and helping your client reach a decision.* STEP SIX: THE CLIENT COUNSELING MEMO Once you have researched the law. you will need to conduct counseling sessions with your client. and determined the strengths and weaknesses of your case. What follows here is one type of Client Counseling Memo/Counseling Chart Format to assist you in preparing and conducting your counseling sessions. the decision of whether to settle a case is purely the client's to make. In order to help your client come to this and other decisions about the case. 2.
Frame The Client's Problem(s) in Terms of Primary Goals and Concerns Brainstorm The Client's Options for Resolving the Problem. Remember that the client is likely to be the best source of information concerning the probability of non-legal pros and cons.(What the Client Wants to Avoid). Package Options By Combining Them Where Possible to Improve Potential Solutions (minimize cons or maximize pros of options). III. CLIENT OUNSELING MEMO
V.A CLIENT COUNSELING MEMO FORMAT TO: FROM: RE: DATE: [After conducting a preliminary Preparatory Statement and Agenda Setting phase. Help Client to Make Decision
. II. go through the following eight stages.] I. SEE Case Evaluation Memo for probabilities of outcomes on claims.) AND Assess Probabilities of Pros and Cons (List the likelihood of the occurrence of the pros and cons identified as best you can. Clarify and Rank The Client's Concerns . Clarify and Rank The Client's Goals .(What the Client Wants to Achieve). affirmative defenses and counterclaims of all parties. IV.) VI. Evaluate The Pros and Cons of the Each Option (Be sure to include both legal and non-legal pros and cons. VII.
Brainstormed Options A. want to avoid? 1. 5. confrontation and legal expense He can take his suit to trial. O. 3. 3. P. 4. This memo is abridged and is simply intended to model the judgment that goes into writing such a memo. with a minimum of hassle. His parents can move. His parents can hope that Dawson River Charter School won’t care what 43
IV. D. Does O.P want 1.P.’s Goals Right Now and How Are They Ranked? A. 4. clear school record so can get into new school punish the principal for suspending him damages to pay his legal expenses some kind of public vindication the ability to publish his web page any way he wants something else?
II. O. confronting his principal in court losing face by losing in court incurring more legal expenses for his parents something else?
III.’s concerns? What is he afraid of right now and How Are They Ranked? A. (YR)
What are O. What does O. wants to clear his school record so he can get into Dawson River Charter School next time you are in the clinic. 2.) TO: FROM: RE: DATE: I. B. THOMAS RIVER FILE VIMAL VORA COUNSELING MEMO APRIL 16.P. TAYLOR VS. 2.P. His parents can put him in a private school.
What are O.A SAMPLE CLIENT COUNSELING MEMO (This sample counseling memo was written in preparation for counseling a fourteen time you are in the clinic old boy who has sued his school district for suspending him because he put pro drug statements on his school sponsored web page.
. 6. C.P.
The Problem Framed in Terms of Goals and Concerns A.
He could try some political route like trying to change the composition of the school board who might be more favorably disposed to his position. The longer the case continues and receives publicity. Winning may not end the harassment. G. Winning would eliminate an obstacle to getting into Dawson River Charter School. Continuing with the suit has put a lot of strain on the marriage of O. the longer O. Maybe the case could be converted into a class action or seek declaratory relief that would affect many more people than just O.happened in his present school. giving him more leverage in negotiating with the school system.P. Even if he wins. He can try to negotiate some kind of deal.’s parents who are divided about the suit. If he loses he shouldn’t have to pay the defendant’s attorney’s fees because this is not a frivolous case.P. F.P. Bringing suit may compel the other side to enter into negotiations. the other side may be able to appeal. which will be at least $10. but there is no guarantee he would get in anyway. and his parents will be targets for criticism. and his parents have taken a lot of heat for bringing this case in the first place. enjoining any future suspension on this offense and getting a reasonable attorney’s fees award. E. The Litigation Alternative – 60% chance of winning based on Case Evaluation Memo analysis of evidence Legal Pros Getting the suspension expunged. H.
. but the mother is no fighter. since he will be suspended again if the case is dropped. dragging the case on for time you are in the clinics and increasing legal fees. and his parents would have their day in court and be vindicated.P.P. though. We have no idea how this suspension will affect his future plans. Losing is the status quo. Legal Cons His parents would have to pay your fees. Non-Legal Pros O.
The Pros and Cons of The Alternatives A. Non-Legal Cons O. He can drop the suit unilaterally. The father wants to fight. It will be difficult for the school to meet the burden of proof. You did not take a contingency since this is not a damages case.
but not much less if you have to finish preparing for trial. Another con of settling is accepting less than you can get at trial. Non-Legal Pros Getting it over with without publicity is a major pro as long as the result is as good as going to trial. which you can do. This option does not foreclose suing if a mutually acceptable settlement cannot be reached. You can try to shield them from this kind of pressure. Both sides may have an interest in not dragging this out and in lessening publicity. can transfer.
The Self-Help Alternative – O. less vulnerability to the system.
The Negotiation Alternative Legal Pros Negotiation may be possible even without suing. you don’t see any risks. maybe better choices.P. Since there is no offer on the table at this time.
Assessing the Probable Outcomes
. less publicity. These are not mutually exclusive remedies. You will continue to explore this possibility with the other side. Non-Legal Cons The disadvantage is just accepting defeat. Non-Legal Pros More control. Lower legal fees. the school hasn’t tried to tempt them with a lesser offer yet.
VII. Fortunately.B. or his family can move. less strain on the family. Legal Pros None. Non-Legal Cons You are concerned that your clients are being worn down by this controversy and may cave before they get what they really want. Maybe a better chance of getting into a charter school. This does not have to be a consequence of pursuing their own alternative school system. Legal Cons None if you continue to pursue the other avenues at the same time. Legal Cons Your fee would be less if you didn’t have to try the case.
assuming you understand their goals and concerns accurately. the more powerful they appear at the bargaining table.P. The non-legal pros of self-help will minimize the cons of either going to trial or negotiating.
. They also could pursue all three alternatives simultaneously thereby improving each one.Clients have a 60% chance of winning some judgment at Trial. Having trial as a deadline will test the other side’s willingness to make their best settlement offer. VIII. Help Client to Make Decision Review with the client how pros and cons affect reaching goals and avoiding concerns. The less vulnerable clients are to loosing a law suit. These have to be tested. In fact. before going to trial most courts will require the parties to negotiate. the more powerful they appear at the bargaining table. particularly if the suspension could hurt O. but you can probably get around that. negotiating for the best offer while preparing and trying to find the best alternative to a negotiated agreement in case you don’t win or settle seems like the optimal approach for these clients. The less vulnerable they are to losing this suit.’s chances of getting into the school of his choice in the future. Packaging Options Negotiation and self-help can be packaged with each other or with the trial option since none of them are mutually exclusive. So continuing to prepare for trial in earnest. IX. Clients moving might render the case moot legally.
4. 7. 3.
For Each Option Identify Consequences and Evaluate Probability of Occurrence and Impacts On Goals and Concerns Option Number 1 Consequences Legal Pros 1 2 Non-Legal Pros 1 2 Legal Cons 1 2 Non-Legal Cons 1 2 Probability of Occurrence Legal Pros 1 2 Non-Legal Pros 1 2 Legal Cons 1 2 Non-Legal Cons 1 2 Impacts of Consequence On Goals/Concerns
. 8. 2.A CLIENT COUNSELING CONSEQUENCES CHART FORMAT List All Options Brainstormed in Stage IV of Counseling Process 1. 5. 6. 9.
whether it takes place over a long period of time or in a single session. without hurting your client's interests and goals. This planning tool asks you to assemble facts and strategies to enable you to conduct an effective negotiation. 3. your target as well as your bottom line for this negotiation (Your Goals). 2. your agenda or strategy.*STEP SEVEN: THE NEGOTIATION STRATEGY PLAN This memorandum is our primary tool for helping to teach you a working theory of legal negotiation called “Tricks of the Trade” which is described in Chapter 3 in “Problem Solving in Interviewing. and 4. Counseling and Negotiating”. your “Best First Offer” package wrapped in the reasons why the other party should accept it.
. The Negotiation Strategy Plan may not answer all of your questions. but it should help you negotiate with lawyers who have more experience. We ask you to set out such items as 1) your best alternative at trial to a negotiated agreement (Your Power).
Ch.” “coalition” and “personal” power in a given negotiation. (According to “Problem Solving in Interviewing. What is your “power” in this negotiation? b. Counseling and Negotiation. How much satisfaction of your client’s interests are you prepared to try to obtain? What will be your target in this negotiation. BUILD TRUST. CLUE SEARCH.
. “constructive.” a legal negotiator may have “obstructive”. (Imagine that your client has asked you what will happen at trial in order for her to compare the likely trial results with the potential settlement proposals. (According to “Problem Solving in Interviewing.) What working relationship will you try to achieve with the opposing negotiator in this negotiation? How will you get it?) V. Any Deal. I.) II. i.” “fairness. DISARM THE OPPOSITION.” a legal negotiator needs to pick the highest realistic target for any negotiation she conducts. Counseling and Negotiating”. 3. Ch.” a legal negotiator is almost always better off when her opposing negotiators trust her. Counseling and Negotiation. or the Enhanced Best Deal?) III.) IV. In particular. 3.) What will your strategy in this negotiation be? (Your responses to IV-X will answer this question. (According to “Problem Solving in Interviewing. Ch. 3. THE NEGOTIATION STRATEGY PLAN KNOW YOUR OWN POWER.” a legal negotiator needs to think strategically at all times. 3.A NEGOTIATION STRATEGY PLAN FORMAT TO: FROM: RE. regardless of which goal she uses. state with precision what you predict will be the most likely outcome if you cannot settle this case and it has to go to trial.” “walking. Ch. SELECT AN AMBITIOUS YET REALISTIC GOAL. What will you tell her? See your Case Evaluation Chart. the Best Deal. (According to “Problem Solving in Interviewing.) a.e. THINK AND ACT STRATEGICALLY. Counseling and Negotiation.
their interests in the outcome.) a.” a legal negotiator should try to learn as much as she can about the other party’s clues to its best offer to her before she accepts any offer it might make. and their standards of fairness to evaluate the outcome. Counseling and Negotiation. 3. including whom your allies are? b. (According to “Problem Solving in Interviewing. Ch. if she has any. What assumptions about the evidence do you suspect the other negotiator is making about what will happen if this case goes to trial? What else would you like to know? d. Counseling and Negotiating”. What do you want to tell the other negotiator about your ability to satisfy his client’s interests? c.) a. What do you want to tell the other negotiator about what you think will happen in court if you don’t get what you want?
. Ch. their factual assumptions about the situation and their best alternative to a negotiated agreement. What interests do you suspect the other party may have in the outcome of this negotiation that could influence its willingness to settle? What else would you like to know? b. What do you think the other party thinks the outcome will be if this case goes to trial? What else would you like to know? VI. 3. There are four kinds of “clues” to the other party’s best offer. a legal negotiator should strategically disclose the sources of her power in the negotiation. It is as if she were counseling the other side as to why they should accept her offer. What do you want to tell the other negotiator about your ability to interfere with the satisfaction of his client’s interests. What standards of fairness do you suspect the other party may have regarding the outcome of this negotiation that could influence its willingness to settle? What else would you like to know? c.(According to “Problem Solving in Interviewing. EXPLAIN YOUR POWER.
standards of fairness do the parties appear to share that might help them focus on reaching an agreement? b.
(According to “Problem Solving in Interviewing. What ideas do you have for mutually beneficial trades that could improve the value of the negotiated outcome for everyone? IX. What common interests.” a legal negotiator can often find more and better options for solving the parties’ dispute by brainstorming alone or with others. Counseling and Negotiation. 3.”
.) a. including the other negotiator. BARGAIN WITH PACKAGES. What factual assumptions do the parties appear to share that might help them focus on reaching an agreement? VIII. What do you want to tell the other negotiator about the fairness of your client’s position in this negotiation? VII. What ideas do you have for mutual gain for the parties that could improve the value of the negotiated outcome for everyone? b.) a. 3.d.
(According to “Problem Solving in Interviewing. Ch. 3. (According to “Problem Solving in Interviewing.” explicitly identifying the common ground the parties appear to share can give negotiators hope and renewed motivation to try to reach a mutually beneficial agreement that is better than their best alternatives. Ch. BRAINSTORM NEW OPTIONS. Counseling and Negotiation. OFFER THEM HOPE ON COMMON GROUND. Counseling and Negotiation. Ch.
Counseling and Negotiation. USE DEADLINES. recognizing that you don’t know as much as you want to or will know later.) What deadlines can you use in this negotiation to motivate the other negotiator to improve his offer to you?
. What are the issues that will probably need to get addressed in order to reach an agreement in this dispute? b. What concessions and modifications to your Best First Offer are you likely to consider making as bargaining proceeds? X.
(According to “Problem Solving in Interviewing. If you had to make an offer right now. but they can help you and hurt you.a legal negotiator is often strategically much better off by bargaining with packages of options that satisfy everyone’s interests. 3. what would your “Best First Offer” to the other party be (described as a package of options)? c. rather than bargaining issue by issue.) a. It also contends that the single most important strategic moment for any negotiator is when she presents her “Best First Offer”. Ch.” deadlines are a very powerful motivator during a negotiation.
with your Closing Argument. Having laid out the ideal closing to argue your "Theory of the Case.*STEP EIGHT: THE TRIAL PLANNING MEMO In the event that your client's problem cannot be resolved by negotiation (for whatever reason). in turn. alerts you to the need for Motions in Limine (to obtain pre-trial rulings on evidentiary issues which are not dependent on the factual context in which they arise during the trial so that you can better plan the trial) and any other pre-trial matters. It also helps you to develop a "theory of objections" aimed at keeping out evidence that harms your "Theory of the Case" and at getting in evidence that helps you. That trial may be before an administrative tribunal. that is. through your witnesses and other evidence and on cross-examination of your opponent's witnesses. with some modifications to fit the "audience.
." you can see what evidence will be needed. discovery. The Trial Planning Memo that we use can. a clear view of the ideal closing argument aids you in developing each phase of the trial plan. Just as having a clear view of your "Theory of the Case" from the very beginning of your client representation assists you in interviewing. and negotiation. Each of these topics is discussed in greater detail in the individual class assignments for Trial Advocacy and the recommended readings. you must prepare for trial. to allow you to present this argument. This. a judge or a jury. legal research. We propose that you begin your trial plan at the end." be used in all of these forums.
) List All Documents and Exhibits They May Want to Use at Trial for Which Foundations Must be Laid for Admissibility Prepare Direct Examinations
VI. Draft Your Closing Argument TRIAL PLANNING MEMO
What is your current best Theory of the Case? What credibility arguments do you want to make? SEE Discovery Planning Memo. VII. B. A.
For each direct examination you have to prepare. Prepare Cross Examinations For each cross examination you have to prepare. Draft Your Opening Statement What evidence do you want to highlight in presenting your statement? SEE Case Evaluation and Discovery Planning Memos. best evidence rule. C. A. relevance. list the highlights or T Funnel topics for which each witness can give admissible testimony based on personal knowledge and expertise.
. IV. V.A TRIAL PLANNING MEMO FORMAT TO: FROM: RE: DATE: I. List Your Probable Witnesses List Their Probable Witnesses List All Documents and Exhibits You May Want to Use at Trial for Which Foundations Must be Laid for Admissibility Purposes (consider authenticity. B. What structure will you use for your statement? III. From each list of T Funnel topics above. B. list the highlights or T Funnel topics for which the witness can give admissible testimony based on personal knowledge and expertise. What structure will you use for your argument? II.
A. select the topics that each witness will be asked to testify about. hearsay. A. etc. VIII.
bias. the basis for impeachment. For statements in "2". prior inconsistent statement).
A. X. 2. Affirmative Defenses and Counterclaims. 3.
. Proposed Rulings of Law (or Jury Instructions) (Date of Most Recent Addition) Draft Rulings of Law (or Jury Instructions) You Need to Obtain a Favorable Decision on all Claims.
From each list of T Funnel topics above. select the topics that each witness may be asked to testify about. List what the witness may be able to say to prove at least part of your case. 1. improbability of testimony).g. List what the witness may say that disproves your case and/or proves the opposing case.
Proposed Findings of Fact
Draft Findings of Fact You Need to Support A Decision in Your Client's Favor on all Claims.
IX. inability to perceive. (e. list which statements will be impeached. and the method of impeachment (e.g.B. Affirmative Defenses and Counterclaims. A.
and persuasive testimony. One of your jobs. There is plenty of fear and confusion inherent in the role of a witness.
. memorable. Next. Here you will want to explain to the witness how his/her testimony fits into the theory of the case. you will draft a set of questions that will elicit all the information you have set forth in the narrative. convincingly. Rather than start by making a list of questions. Draft a detailed narrative of the fullest.*PREPARATION FOR DIRECT EXAMINATION The goal of direct examination is to fashion clear. the better the witness will be at the hearing. and the procedures he or she can expect to encounter in court or at the hearing. after reviewing the narrative with your professor. we ask you to begin by going back to your Case Evaluation Memo. and truthfully present. and the role of his or her testimony within that case. and best testimony that your witness can clearly. you will have your witness(es) come in to role-play the direct examination. is to minimize that confusion and fear for your witnesses. Once the questions are in final form. accurate. Your professor will sit in on this session. as a lawyer. The more the witness understands about the case. so that their testimony can be properly evaluated without judge or jury construing their fear and confusion as dishonesty or unreliability. Your professor may want to engage in a mock crossexamination of the witness to prepare for that phase of the hearing. The questions will also be reviewed by your professor for form and for the adequacy of the evidentiary foundations. You will want to determine through the roleplay the witness' understanding of the case. That narrative should contain everything that the witness can say on each element of each claim or defense in the case.
*PREPARATION FOR CROSS EXAMINATION Cross-examination is always difficult. There are steps that you can take to conduct a good cross-examination. We will teach you a simple theory of cross-examination in class. Begin by going back to your Case Evaluation and Discovery Planning Memos, and ask yourself the following questions: 1) To which parts of your case will the opposing witness admit? How can this witness's testimony buttress your theory of the case? List them by reference to your Case Evaluation Memo. In a housing case, for instance, if the landlord claims that he fixed a furnace, he will probably have to admit that it broke down, and was out of service for some period of time before he claims to have fixed it. This admission helps to buttress part of your case, and further to isolate the few areas of factual dispute between the parties. Your Discovery Planning Memo should have identified these topics for you. 2) Review the Credibility Checklist from your Discovery Planning Memo. How can you undermine the credibility of the witness' story that undermines your Theory of the Case? 3) Do you have access to any prior statements of the witness with which you can impeach him/her if he/she testifies contrarily on direct exam? For example, do you have letters, answers to discovery requests, deposition transcripts, pleadings, independent witnesses who heard this witness make contrary statements at some time in the past? If so you can prepare to use such statements for cross-examination purposes. You will have to discover the proper foundation to lay before you can use such statements, but if you can do it correctly you can use this potentially devastating tool. Once these (and possibly some other) questions have been answered, you will prepare a series of cross-examination questions for each opposing witness. Your professor will critique these questions with you. The preference will be to make each cross examination question a "leading" question. You will learn that leading questions need not be asked by sneering and snarling at the opposing witness. You will probably be asked to try out your cross-examination questions on your professor who will play the opposing witness.
*PREPARATION OF REAL EVIDENCE FOR TRIAL For each item of "real" or documentary evidence that you intend to submit to the court or jury, you must first know the evidentiary foundation, which must be laid so that the evidence can be "admitted." You will learn some foundations in your evidence course, and we will focus on foundations in some of the classes in the Trial Advocacy course in the second semester. You should make a list containing each such item and all of the necessary foundational elements for its admission (for all items of real or documentary evidence - even those your opponent may try to introduce) in order to get the evidence you want to admit, admitted, and to keep out the evidence of your opponent which you want to keep out. Your Case Evaluation Memo should be of help in doing these tasks.
*PREPARATION OF A TRIAL NOTEBOOK If one of your cases is likely to go to trial, we will ask you to prepare a trial notebook. In it you will have organized your trial materials. It may contain, among other headings, materials on: 1. 2. 3. 4. Pretrial Motions and memos Voir-dire questions (in jury cases) Opening statement outline Witnesses * * * 5. 6. 7. 8. 9. 10. 11. list of witnesses for each side statements of each witness (depositions, discovery answers) Direct or Cross-examination questions for each witness
A chronology of key events in the case Authority for the admissibility of evidence (memos) Authority for substantive law (memos) Exhibit list (with space to indicate whether admitted) including necessary foundation questions. Final Argument outline Jury Instructions or Proposed Findings of Fact and Rulings of Law Notes during trial See also, Mauet, Trial Techniques, pp. 486-489.
it will show up clearly in a role-playing exercise. we will ask you to practice the task in a role-play before you have to do it "for real." If you are having trouble executing your plans. but to have you show us that you know how to translate your theory into practice. In other words. it can be done before it has a negative effect on your client.
. we can practically guarantee you that you will gain self-confidence and become a better lawyer. You will have to demonstrate that you have a theoretical understanding of what we teach by showing us that you are familiar with our theories and our models. If you take these role-plays seriously (there will also be role-plays in classes). If your professor sees something in your role-play performance that needs to be corrected. You will have to demonstrate that understanding by showing us how you can translate it into action. The beauty of role-plays is that they allow you to take chances in a safe setting without any risk to your client.*PREPARING FOR LIVE PERFORMANCE Our teaching approach is not merely to have you tell us how you plan to perform when the time comes.
Therefore. but rather ¾ hr. The Case Chronology Entries must be typed. Your individual professor may have his or her particular preference for the filing of certain items. etc.). legwork. Privacy Act Release forms.g. Each time you have something to report about the case it should be noted in the Case Chronology. such as describing the contents of a phone conversation with your client or the opposing attorney.m. The Case Chronology acts as an index to the file and also as the basis for any motions for attorney’s fees that may be appropriate. and 4) your initials so that later it can be determined who did the particular piece of work. Each memo should be separated from the previous memo by a stick-on tab (these will be provided by the secretaries) that contains the number of that memo. Most files will be kept in the six (6) part red case folders. Vacation Memo. other attorney’s information. Cases that you begin may have to be transferred to other students after you leave. Because of these circumstances. 2) the nature of the work (if it needs further explanation. legal research. There should be an index sheet on top of this Memos to the File sub-file and each memo should be listed there under a number. Please put these tabs on the outside edge of the document and not on the inside edge. beginning with The Interview Planning Memo. Discovery Planning Memo.g. e. Trial Planning Memo. you should write a separate Memo to the file and place it in the MEMOS TO THE FILE sub-file). then the Opening File Memo. then the Legal Research Memo. address and phone number. In this way anyone can glance quickly at the memo sub-file index and see what it contains. you may receive cases that were begun by students who were previously in our program. Files should be kept in reverse chronological order (e. MODEL FORMATS
*CASE FILES Civil cases have a habit of taking a long time to resolve. 3) the amount of time you actually spent doing that work (not the time of day. and the Case Chronology (first page should include client’s name. Phone calls (even ones where no one answers). Transfer Memo and any other Memos to the File. Case Evaluation Memo. and a separate memo to the file should be prepared which sets out in detail what you have learned. all Release of Information Forms (medical releases. IT IS EXTREMELY IMPORTANT THAT YOU RECORD EACH AND EVERY PIECE OF WORK THAT YOU DO ON EACH CASE IN THE CHRONOLOGY FORM! You should record 1) the date you did the work. and any 61
.V. When you have significant information about the case.). You should get into the habit of maintaining this section of the file each week at a minimum. but in general. we have agreed on a model file format that you will be required to follow. everything must be recorded. and it should contain all memos to the file. other party’s information. There are places for each of these items on the form. it should be referred to in the case chronology. Please review the Model Case Chronology in the Model Documents Section for an example of how the chronology should be maintained. 2) The next sub-file on the first right hand page of the file folder is the Memos to the File sub-file. the signed Retainer Agreement and Client Authorization of Student Representation Form. 1:30-2:15 p. with the most recent work on top.. etc. Subsequent pages need not repeat this data). and sessions with your professor.) 1) The inside left cover should contain: All GBLS intake forms (Form 1 and Form 3). Counseling Memos. we MUST maintain a uniform system of case files. Negotiation Strategy Memo. If you have any questions about file format in any particular case please speak with your professor.
and the six-part folder is full. and there should be an index sheet on top that lists each item by number and describes it. This file also must be indexed and tabbed. In this way. which may suffer damage by repeated handling. bills. etc. but that any pleadings which are sent to the courts along with those cover letters will be placed in a Pleadings sub-file. receipts. cancelled checks. you may need to use an
. upside down). Each item should be tabbed. the file number (to be found on the GBLS Form #3) and the number of the appropriate sub-file (e. with the most recent one on the top. where you may have to show that a particular item is in the state it was in at a particular time in the past. ALL MEMOS TO THE FILE MUST BE TYPED. The tabs should be placed on separate sheets separating the various pleadings. This means original documents (do not alter any of these documents by writing on them or by punching holes in them. Each letter sent and/or received will be placed in this file chronologically. In this way the actual letter will not be tampered with in case it needs to be Xeroxed or used later in court. you may create new sub-files by using additional red file folders and labeling them with the name of the client. 6) There will often be a sub-file for Real Evidence that will require both the left and right pages of the folder to maintain. photographs (these can be properly labeled indicating the date the picture was taken and what it represents).) such as original letters. file 2 of 3). If the case is complicated. Please note that all cover letters sent to courts will go in this file. you may want to have two Pleadings and Court Documents Sub-files: one for Plaintiff's Pleadings and Court Documents and one for Defendant's Pleadings and Court Documents. 7) If additional sub-files are needed. 5) Other sub-files may be required for Legal Research or Negotiation. with the most recent document on top. All pleadings and documents filed in court or with an administrative agency must be placed in this sub-file in chronological order. Between each letter should be a piece of plain paper on which you will place the stick-on tab. 8) For medical records or copies of a Social Security file. It also avoids having to use the two-hole punch on items that you may have to introduce at trial. you will be able to review the various pieces of real evidence by looking at the copies and not at the originals. 4) The next sub-file on the next right hand page of the file folder is the Pleadings or Court Documents sub-file. Inside this envelope you should place all items of real evidence that you may need to use at a hearing or trial.g.particular memo can be found immediately without searching through an entire stack of memos. or any other item of original evidence which you have received from your client or in the course of your investigation. All memos should be placed in the file chronologically. as was the Correspondence sub-file. which should also be indexed on top and tabbed as described above. 3) The next sub-file on the next left hand page of the file folder is the Correspondence sub-file. The very back of the hard sided folder should be used to attach a large manila envelope (this envelope should be placed in the folder with the metal clasp at the bottom so that it can be opened and documents can be removed from it without removing the envelope from the file--in other words. with the most recently mailed or received letter on top. On the left hand side of the folder you should have Xerox copies of everything you have placed in the manila envelope. Two-pronged fasteners should be placed at the top of each such sub-file so that nothing placed into it will be lost because it was lying around loose in a file.
accordion file folder. It should also be labeled with the names of the client, the GBLS file number, and a brief description of the contents. PLEASE NOTE: We will be checking your case files periodically. We expect that the format described above will be followed unless you have received your professor's explicit permission to deviate from that format. These are MINIMAL expectations. If you do not understand our reasoning for these requirements, please ask your professor.
*MODEL DOCUMENT FORMATS WITH INSTRUCTIONS FOR PREPARATION Everyone will use the same format for all basic litigation documents from business letters to pleadings. While you are in this course, you must use these formats unless given express permission to do otherwise by your professor. Sometimes different settings use different formats. You may see a sample of a document in a Litigation Packet that differs from our general format. You may use either in that setting. Check the Litigation Packet for the type of case you are doing FIRST before you draft any document and you will probably find a format for what you need. If you do not find one, ask your professor. Your professor would prefer that you show him/her a draft of a business letter, for example, that conforms to our model format, and that you consult the model formats before asking how a particular document should look. PLEASE NOTE that LITIGATION PACKETS contain many more model documents such as pleadings that are pertinent to specific types of cases. The models in this first section are more general, as their purpose is to introduce you to what we believe are the correct formats. Always check in both this section and in the various LITIGATION PACKETS for models of the kind of work you are doing.
A. MODEL CASE CHRONOLOGY FORMAT Cover Page CASE CHRONOLOGY Attorney: Lois Knight Student: Allegra Biggs Name of Client: Address: Telephone: Social Security: John Doe 66 Perkins Street, Boston, MA 02111 888-1234 002-30-4040
Date Case was opened: 10/22/YR Additional Important Names, Addresses and Telephone Numbers: 1. Name: Jobson Realty Trust Address: 123 Beacon Street, Boston, MA 02106 Telephone: 437-1010 Name: Bern, Good & Base Address: One Financial Center, Boston, MA 02111 Telephone: 436-8000 [PLEASE NOTE: Chronologies should be placed in the file in reverse chronological order with the most recent page first. The cover page should always be placed on top of the chronology.]
counsel to Jobson Realty. Sent 93A Letters to Jobson Realty Trust and Tim Realty Trust via certified mail and regular mail. Sent copy of Jobson Realty Trust 93A Letter to James Watch.0 . wrote transfer memo. Received Letter from Bern.5 1. 1/8/YR. The cover page should always be placed on top of the chronology. Prepared for meeting with Client. Sent copy of both letters to Client with letter advising him that I will be out of town from 12/14 to 1/7.5 1. Organized file. Called Client and told him to expect letters in the mail. Jobson's attorney.
. See memo #12. See confirming letter dated 1/15/YR Time Hrs. Researched issue of rent increase. 2. Met with Client at Friend Street to prepare for 1/14/YR hearing. for how long and by whom. Spoke to Client and arranged pre-hearing meeting for 1/10/YR.15 . Received copies of medical records from Veterans Administration. Received Notice of Hearing and Request for Appearance. Organized file. In place of lengthy entries. Reviewed medical records.[PLEASE NOTE: Chronologies should be placed in the file in reverse chronological order with the most recent page first. Then insert into the case chronology the date and "conversation with (client) (opposing counsel) (witness).0 1.5 1.25
AGB AGB AGB AGB AGB AGB AGB
(Note: For reasonable attorney's fees motions later. 1/13/YR Telephone conversation with client. do a memo to the file. Good & Base. See memo to file of this date"). Organized files. these entries need to be very clear about what was done. Copied LHK. See memo #11. Made changes to 93A letters and resubmitted for corrections.0 Initials AGB
12/13/YR 1/8/YR 1/9/YR 1/10/YR 1/12/YR 1/15/YR
JOHN WILLIAMS CASE ACTIVITY LOG Date 12/3/YR 12/4/YR Activity Sent client copy of 10/23 letter requesting hearing.
MA 02026 329-5440 Ext. MA 02130 617) 524-2421 Child Support Enforcement Atty: Siobhan Power Division Counsel to the Commissioner 360 Washington Street. MA 02114-3096
.B. MA 02187 444-2604 OPPOSING ATTY: Linda Olmstead 705 Center Street Jamaica Plain. JONES FILE cc: LOIS KNIGHT JAY SOBEL TRANSFER FILE MEMO 5/5/YR Background and Key Contacts
This is a complicated domestic relations case. MODEL TRANSFER MEMO FORMAT Boston University Civil Litigation Program TO: FR: RE: DT: I. 293 Norfolk Probate & Family Court Clerk: 326-7200 Family Counselor (Children's Counselor) Beth Burlingame 77 Parkingway Quincy. Box 309 Dedham. Milton. JONES v. The crucial parties and their addresses and phone numbers are: LINDA JONES (CLIENT) 115 Miles Ave. MA 02169 (617) 770-7700 George's Employer (Eye and Ear Associates) Howard Boui 234 Charles Street Boston.
of which Linda only sees $50 extra/month. (YR)) when the discovery is due. Linda was finally served. The family counselor. We filed Interrogatories and a Request for Production of Documents. George finally contacted his attorney and agreed to comply with discovery. (YR) and finally expired January 31. We need more information as to these expenses. IV. which should be provided by George's response to discovery. Linda wants George to pay outstanding credit card debt of approximately $3000 incurred (pursuant to an oral contract) for necessities by both George and Linda between April (YR) and December (YR). George has never returned to the marital home save for 2-3 visits with the children. Linda wants the court to grant her full legal custody of the children and deny George any visitation rights until he undergoes further abuse counseling. there are no scheduled appointments. which was renewed on January 31. In September (YR).
In December (YR). who lives with them. Deadlines and Appointments The only deadline is the date described above (May 29. Another issue is the provision of adequate health insurance Jeanette Jones has a serious hearing impairment. III. and Linda and the children began therapy at North Shore Counseling Center. and was eventually convicted for assault.II. but had difficulty serving Linda with the complaint. The marital home is owned by Linda's father. (YR). which were not returned by the deadline. Beth Burlingame's opinion does not support Linda Jones' claim that the children are afraid of their father. In our answer. George Jones was physically abusive toward Linda Jones. Present Status
The parties have entered into a stipulation that all outstanding discovery will be forwarded by May 29. and I met with and counseled her in January. Linda got a temporary restraining order. George has been ordered to pay $109/week to the Department of Revenue. We then filed Motions to Compel and the day before the hearing on the motion. was arrested. (YR). Currently. (YR). but would not respond to my phone calls or letters. We are still waiting for the Emerge report.
. which may require a series of surgeries. Linda is on TAFDC. Linda had contacted our office to pursue her own complaint for divorce. George filed for divorce. I requested an opinion on visitation from the family counselor and a report from Emerge on George's progress through abuse counseling. George attended abuse counseling at Emerge as part of his sentencing. we denied their allegation for irretrievable breakdown and counterclaimed for divorce on grounds of cruel and abusive treatment. During this time you are in the clinic.
They will not send them to us. This scenario has complicated the issue of visitation by introducing the fact that George's increased presence may not worsen. -Counsel Linda. Additional Information
The Department of Social Services investigated Linda's father for physical abuse of the children. -Begin negotiations with Linda Olmstead. According to the counseling records. George's attorney. -Mark for Preliminary Hearing. there has been a lot of hostility between Linda. See the Chronology for the procedure that was agreed upon. I have not spoken to Linda about this information.V. which they promised to send to Linda back in the beginning of April. -Also press George's attorney to get George over to Linda's house and pick up his stuff. MA 0221 (617) 352-1234
Steps to be Taken
-Follow up on my request for Emerge records. Where to Reach Me. her father and the children since George left. VII. but the spouse is entitled to a progress report. This investigation was closed October (YR). VI. Summer (YR) 27 Warren Drive Nowhere. NJ 07747 (555) 566-3421 (h) School Time (YR) 227 Blacktop Street Boston. but indeed improve the environment and emotional balance of the children.
5 [The rest of the text of the letter follows] Sincerely.C.6 James Charles7 3:03 Law Student8 JC:AJR9 Encls.2 Davis & Jones 10 Post Office Square Suite 1003 Boston. Massachusetts 02109 Re: Milton v. Esq. (YR)1 John B. Douglas3 Boston Housing Court No. SP 12119
Dear Mr. MA 0213011
. MODEL BUSINESS LETTER FORMAT
September 15. Davis. (4)10 cc: Helen King 108 South Street Jamaica Plain. Davis:4 I am writing to confirm my understanding of our agreement reached yesterday on the telephone.
and not when it was originally typed. Although you may feel that your case is the only one currently being litigated in Massachusetts. When dealing with all courts.g. and double-space between paragraphs.. 3. we have chosen to demonstrate that everyone is equal under the law by placing the secretary's initials in caps as well. always single-space even the shortest business letters. so that the clerk or your opponent. you must indicate that you are a law student. You may use your own closing. In the case of Clerks of the various courts." "Sincerely yours. You will be amazed at how commonly others will mistake you for a lawyer. to facilitate their processing of your letter. Briefly. For very significant reasons. you need not indicate your initials as the person having typed it. "Dear Mr. for Criminal Business. Line it up with the date and your name so they are indented the same amount. Be careful. "Yours very truly. 2. 4. e." "Sincerely. Use your name and not your professor's name. Please refresh their memory. (4)" if more than one item is enclosed. Also. 10. unless specifically told to do otherwise. This footnote refers to your and your secretary's initials. 7. without your telling him/her. Davis:" In addition. For example. The use of a comma after a salutation indicates a personal letter rather than a business letter. When you type the letter yourself. Whenever you enclose something in the letter. if you can. the court in which that case is being tried. "Dear Sir/Madam:" or "Dear Madam/Sir:" is all right. business letter salutations use colons. distinguish between the Clerk for Summary Process. 8. or for Small Claims. you should indicate it by writing "Encl. who receives your letter.g. for Civil Business.Instructions for the Preparation of Business Letters The following instructions refer to the footnotes found on the preceding MODEL BUSINESS LETTER FORMAT. You can use a variety of salutations. Do not just assume the addressee will be able to figure that out immediately. The date should then be corrected if there is a delay. and the copy for our file should also be corrected. The first sentence of any business letter should be a good introduction to what is to follow.. 6. please address it to that individual. describe why you have written this letter. 9. 1. The date should be indented the same distance as the closing "Sincerely. not semicolons or commas. adversaries or their attorneys. 5." etc. If you have an individual with a name. and the docket number. describing yourself as a "3:03 Law Student" forestalls the criticism by ignorant adversaries that you are engaged in the unauthorized practice of law. The body of the letter should also indicate for 71
. "Dear Clerk:" is also acceptable. Sometimes delays will make that date stale. e. will know what case the letter involves." or "Encls. Be specific regarding to whom the letter is going. The standard form would have your initials capitalized and your secretary's initials in small letters. others may not be so certain. Always include in the "Re: section" the name of the case." This should reflect when the letter left your office. Most clerks will simply return your letter if there is no case name and docket number. While we appreciate how flattering that confusion may be for some of you. This will protect all of us from complaints to the Board of Bar Overseers later on.
If enclosures are included in the letter. Whenever copies of your letters are to be sent to someone else. they must be sent as well. your file may be deficient in reflecting that information. At least your "cc:" indicates that they were. This is what is meant by "sending a blind copy. You may indicate this in your case activity log.your records what was enclosed. and you are trying to figure out what you sent in the letter later. Sometimes you may want to send your client a copy of your work. along with the entire address so the secretary knows where to mail the copy. If it does not."
.". indicate it by typing "cc:" directly under the "Encl. except your client. 11. You do not have to indicate that he/she was sent a copy on the original itself.
September 24.D. James Charles 3:03 Law Student JC:KLG Encls. and DEFENDANT'S MOTION TO TAKE A DEPOSITION BY A TAPE RECORDER. MODEL COVER LETTER TO THE COURT
September 15. Sincerely. MA 02114 Re: Milton v. (YR) at 12:00 noon. SP 12194 Would you please file the enclosed documents in the above-numbered action: 1) 2) 3) DEFENDANT'S ANSWER AND COUNTERCLAIMS. (3) cc: John B. DEFENDANT'S INTERROGATORIES TO BE ANSWERED BY THE PLAINTIFF. MA 02109
. (YR) Clerk for Summary Process Boston Housing Court New Chardon Street 22-24 New Chardon Street Boston. would you please mark the above motion for a hearing on Thursday. Douglas3 Boston Housing Court No. Davis 10 Post Office Square Boston.2 Thank you for your assistance.1 In addition.
the courts have different ways of doing that. we put the title of all pleadings in capital letters in correspondence to the other side and to the court. 3. 2. some courts will accept a letter as we have done in the model that precedes these instructions. By putting the date in the letter. For instance. you risk having the clerk return your letter and pleading without filing them. it also assists you in notifying the other side and in retaining a record of the request in your file. You must type the case name and docket number. We prefer the way this looks. For the sake of emphasis and the way the document looks. If you have a motion to mark up.Instructions for the Preparation of Cover Letters to the Court 1.
. If you fail to do so. There is no court rule that requires us to do so. This is totally arbitrary.
00 by October 1. In addition. If this statement accurately reflects your understanding of our agreement. (YR) John B. Davis: I am writing to confirm my understanding of our agreement reached yesterday on the telephone about the Douglas case. (YR). Douglas and all claims for back rent which he may currently have against her. which we will both sign.E. If this does not reflect your understanding of our agreement. Douglas Boston Housing Court No. Massachusetts 02109 Re: Milton v. MODEL CONFIRMING LETTER
September 15. Your client has agreed to drop his eviction action against Mrs. and forward to the court for filing. James Charles 3:03 Law Student JC:AJR Encl. would you please sign the enclosed copy on the line provided for that purpose and return it along with the STIPULATION OF DISMISSAL to me for signing. would you please contact me immediately. in exchange for her paying him $300. DAVIS Attorney for Clinton Milton1
. you will draft a STIPULATION OF DISMISSAL. Sincerely. SP 12119
Dear Mr. Thank you for your assistance in resolving this matter equitably for both parties. Davis. ASSENTED TO: JOHN B. Esquire Davis & Jones 10 Post Office Square Suite 1003 Boston.
This confirming letter with your opponent's signature on it is a simple way to memorialize agreements reached verbally either in person or over the telephone.
.Instructions for the Preparation of Model Confirming Letter 1.
] 25. 4.] PARTIES9 3. MODEL COMPLAINT COMMONWEALTH OF MASSACHUSETTS1 SUFFOLK.] JURISDICTION8 2. Apartment 34.F. The Plaintiff DEBORAH SMITH resides at 45 Maple Street. .2 ) ) ) ) ) ) ) SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. [A succinct. ages three. Defendant
INTRODUCTION7 1. with her three children. 37243
DEBORAH SMITH. paragraph-by-paragraph statement of the essential facts of your case goes in this section.4 Plaintiff v. and six months. GENERAL FACTS10 5. [A brief description of the nature of this action goes here. . . [State the legal authority for the court's jurisdiction to grant the relief you are seeking in this action. Massachusetts. Roxbury. ss.
. . . and is the owner and landlord of the building in which the Plaintiff and her children live. Dorchester.5 CLINTON MILTON. The Defendant CLINTON MILTON resides at 56 Moreland Street. two. . Massachusetts.
MA 02114 (617) 371-1270 X 1802
(Note: Please read Mass. as described in Count One. Please review this provision with your supervisor before filing your Complaint..18 James Charles19 3:03 Law Student
Date of Filing20
Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston. 2. paragraph-by-paragraph statement of the essential facts to plead a cause of action for this count goes here.)
. 27. for the Defendant's negligence toward the Plaintiff. §13B for the requirement that a Statement of Damages be included as part of your Complaint. .COUNT ONE: NEGLIGENCE11 26.14 REQUEST FOR RELIEF WHEREFORE. 231. for the Defendant's intentional infliction of emotional distress on the Plaintiff. [A succinct. . 36. the Plaintiff requests that the Court enter judgment against the Defendant for each count as follows:15 1.]13 35. the Defendant owed a duty to the Plaintiff to maintain the premises in a habitable condition. .. Gen. Damages together with interest and costs. .12 In addition.
COUNT TWO: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
THE PLAINTIFF REQUESTS A TRIAL BY JURY ON ALL ISSUES OF LAW IN THIS ACTION. The Plaintiff re-alleges the facts set forth in Paragraphs 5 through 25 and incorporates them by reference as though fully set out in this count. Laws ch.16 Damages together with interest and costs. .17 DEBORAH SMITH By her attorneys. as described in Court Two. .
The full names of the parties are in caps. Type your client's name at the end in caps. etc. and our theory of our client's legal entitlement to relief (e. The "v.). but we feel it helps the judge. this is the one we prefer. On the initial Complaint everyone's name must appear if there is more than one Plaintiff or one Defendant. But your professor must also sign each pleading as well.Instructions for the Preparation of the Complaint 1. and the caption will be underlined.. It is not capitalized. et al." is not capitalized. It is not enough to name them in the title. (e..e." apparently comes from the old English.g. for negligence).g. 2. 7.") may be used for brevity. The "ss. The court will also need to know where each lives in order to determine if it has venue to hear the case. 17. 9. The federal courts use this style. You may also have to file a separate "Claim for Jury Trial" provided on a form by each court. In situations where each count of a multiple-count Complaint has a common nucleus of key facts. 8. 5. The state courts do not. but no one seems to know what it means. "as described in Count One. The docket number is indented below the name of the court. we put in "General Facts.." Unless the damages are liquidated. When we describe our "Request for Relief. The court rules also require that your business 79
. The state is centered in caps along with the county in which the court resides and the name of the court. 16. 4. "Plaintiff" and "Defendant" are not in caps and are south of the name. Your name may be listed first. "Clinton Milton. Then each count incorporates the general paragraph into it and adds its own special facts. We ask for a jury trial in the Complaint. the first party's name plus an "et al. consumer versus seller. The parties must be described and named in the body of the Complaint. This is required by the student practice rule.e. The federal practice requires a jurisdictional statement. 15." we usually refer again specifically to the formula used to compute the damages figure. We give each count a separate damage paragraph and remind the judge briefly what the figure refers to. The title of the pleading will be in caps to the immediate right of the parties if there is room. We use a brief introductory paragraph to help orient the judge quickly about the kind of case before him/her and what it is we are ultimately looking for. Usually a brief word about the nature of the relationship between the parties is useful." (i. Follow that with a "By her attorneys. 18." ordered in some easily understandable way. follows a comma and is followed by a PERIOD. We put in a brief statement of the court's jurisdiction to give us the relief which we are seeking in this case. On subsequent pleadings. you cannot list a number in the complaint. if we can. i. 10-14. tenant versus landlord." 19. Although a variety of case name formats can be used. particularly in deciding whether to grant temporary relief. 6. The statement should be short and to the point.. 3. without much time to think the issues through.
For some reason. A complaint must be served by a constable. therefore making it less than obvious when the document was actually filed with the court.
. NOTE:A Certificate of Service is not used when filing a Complaint. All subsequent pleadings filed with the court must include a "Certificate of Service. The rules also require indicating the date of filing. There are examples of different kinds of complaints in other parts of this Manual. deputy sheriff." The format for the "Certificate of Service" is next. 20. this is frequently left blank on the copies retained by our file. Please make sure that your file copy contains the date on which the document was filed with the court. describing how he/she gave the Defendant notice of this suit. or special process server who must make a special "Return of Service" or affidavit to the court.address and telephone number be included on the pleadings with your signature.
September 29 (YR).
. the Plaintiff's attorney 4 .7 Date of Filing8 James Charles 3:03 Law Student INTERROGATORIES. certify that on September 15. I sent by first class mail. 10 Post Office Square. Boston.G. JAMES CHARLES. and. at 12:00 noon in this Court6 : 1) 2) DEFENDANT'S MOTION TO COMPEL ANSWERS TO HER DEFENDANT'S REQUEST FOR PRODUCTION. (YR)3 . MODEL CERTIFICATE OF SERVICE AND NOTICE OF HEARING CERTIFICATE OF SERVICE1 I. to John B. Davis. postage prepaid. for the Defendant2. Massachusetts 02109. copies of the following documents5 together with a notice that the enclosed Motion has been marked for a hearing on Thursday.
you should not indicate that you are the attorney for the Defendant or Plaintiff since you are not. Note that the Housing Court will notify parties of the date of a hearing. You may not get a default when the other side doesn't show up. when you do this. and not an attorney. 2. Also note that some courts have the attorney keep the original Certificate of Service and not file it unless the other party raises service as an issue. You must again indicate that you are a 3:03 Law Student. As a result this information cannot be included in your Certificate of Service. Send them to the other attorney if there is one. However. In most courts in which we practice. You may refer to all of the documents being filed at that time on one Certificate of Service. 5–7. Indicate what was sent. and not the party. unless the party is unrepresented. Date the certificate and sign it yourself. Note that in some courts the Certificate of Service must appear on the document itself and not on a separate attached sheet.
. 4. Indicate whether you represent the Defendant or Plaintiff. It's crucial to indicate when it was sent to the other side to determine if they had enough notice of the papers you are filing according to the applicable rules. You as a 3:03 Law Student can sign the Certificate of Service. if you file more than one at a time. but they should obviously be listed on that certificate.Instructions for the Preparation of a Certificate of Service 1. we are not required to provide separate "Certificates of Service" to be attached to each document you file with the court. including the notice of the time that was given for the hearing if you have scheduled one. Give the address as well as the name of the person to whom you are sending these documents in order to avoid the claim that the papers were sent to the wrong address. unless the judge is satisfied that he/she had notice of the hearing. 3. 8. Please check court rules to ensure that your Certificate of Service is proper.
] DEBORAH SMITH By her attorneys. pursuant to Rule 37 of the Massachusetts Rules of Civil Procedure2. Use a separately numbered paragraph for each reason. . Plaintiff v. that this Court compel the Plaintiff to answer her interrogatories filed on August 1. Defendant
The Defendant moves1. James Charles 3:03 Law Student
Date of Filing
Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston. 4 [List in this section the reasons why the Court should give you the relief you are seeking by this motion. CLINTON MILTON. ss. ) ) ) ) ) ) ) SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. (YR).H. 3724 DEFENDANT'S MOTION TO COMPEL ANSWERS TO HER INTERROGATORIES
DEBORAH SMITH.3 In support of this request. MA 02114 (617) 371-1270 X 1802 CERTIFICATE OF SERVICE
. . MODEL MOTION COMMONWEALTH OF MASSACHUSETTS SUFFOLK. . she gives the following reasons: 1.
5. Indicate specifically in the first sentence. and attach a "Certificate of Service. must be sent to the other side." Copies. of course. 3. date it. Indicate clearly in the title of the pleading who the moving party is and repeat it in your first sentence. Please read that rule for yourself. what the relief is that you are asking the court. There are examples of different kinds of motions in the Civil Practice and Other Litigation Packets. 2. The court rule on motions. begin to lay out the reasons why you contend you are entitled to the relief you seek.Instructions for the Preparation of All Motions 1. as you have indicated in your Certificate of Service. requires each of these elements in all motions. Rule 8 of the Massachusetts Rules of Civil Procedure. 4. We prefer that you immediately state the legal authority that empowers the court to give you the relief you are requesting.
. In your second sentence. Sign the motion.
An example of a more detailed Answer is found in your Summary Process litigation packet. ss. Roxbury. . You have an obligation to specifically admit or deny the allegations contained in the Plaintiff's Complaint. CLINTON MILTON. 239. as set-off to any claim for back rent by the Plaintiff.. P. HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION No. §8A (YR). Gen. 31. Massachusetts.
[Rules 8 and 9 of the Massachusetts Rules of Civil Procedure describe how your Answer must be written. AS A DEFENSE TO POSSESSION AND NON-PAYMENT OF RENT2 21. 239.. LAWS CH... .] 20.. Apt. MODEL ANSWER AND COUNTERCLAIMS FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. . FIRST AFFIRMATIVE DEFENSE: RENT WITHHOLDING PURSUANT TO MASS.. and for her own damages: COUNT I: BREACH OF WARRANTY OF HABITABILITY 32. DEFENDANT'S COUNTERCLAIMS3 The Defendant asserts by way of counterclaim against the Plaintiff pursuant to Mass. §8A (YR). Rule 3(c) of the Uniform Summary Process Rules.. Civ. 34. . GEN. Laws ch. . Plaintiff v. 13(b) the following counterclaims as an affirmative defense to the Plaintiff's claim for possession. R. but she denies that such possession is unlawful or against the right of the Plaintiff. and Mass.
DEFENDANT'S ANSWER AND COUNTERCLAIMS
DEFENDANT'S ANSWER1 1. SP 12194 ) ) ) ) ) ) )
DEBORAH SMITH. The Defendant admits that she is in possession of the premises located at 45 Maple Street.I.. 85
[The counterclaims are pleaded as if they were separate complaints.] 45. . MA 02114 (617) 371-1270 X 1802 CERTIFICATE OF SERVICE
. . See the model complaint format in this Manual.. An example of a complete complaint may be found in your Housing Litigation Packet.. DEBORAH SMITH By her attorneys.
THE PLAINTIFF REQUESTS A TRIAL BY JURY ON ALL ISSUES OF LAW IN THIS ACTION. An example of counterclaims may be found in the sample "Defendant's Answer and Counterclaims" in the Housing Litigation Packet. REQUEST FOR RELIEF 1... James Charles 3:03 Law Student Date of Filing Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston.
although the numbered paragraphs continue consecutively.
.Instructions for the Preparation of an Answer and Counterclaims 1. so that there is no confusion by the judge. Complaint or Counterclaims are long. However. The Answer is broken down into numbered paragraphs. There are no rules prescribing this style. court clerks." 2. 3. both must be listed on the front page. which continue through affirmative defenses and counterclaims. We just think it looks nice and is easy for a judge to go through. We use this kind of descriptive subheading for all affirmative defenses and counterclaims. particularly when the Answer. stopping only at the "Request for Relief. or opponents that both are included in this pleading. There is a comprehensive example of an answer and counterclaims in the Housing Litigation Packet. The "Answer" section is formally separated from the "Counterclaim" section.
. B.2 In order to comply with Rule 33.] DEBORAH SMITH By her attorneys. employees. residential and business addresses.J. MODEL INTERROGATORIES FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. . When reading these interrogatories. Plaintiff v. and your position and duties with the Defendant. . would you please inquire of your officers. Massachusetts. Apartment #34. and check any documents. A sample set of interrogatories may be found in your Housing and Civil Practice Litigation Packets.. ss. Defendant
PLAINTIFF'S INTERROGATORIES TO BE ANSWERED BY THE DEFENDANT UNDER OATH1
The Plaintiff in the above-captioned action submits to the Defendant the following interrogatories to be answered in writing and under oath within 45 days as required by Rule 33 of the Massachusetts Rules of Civil Procedure. [Your interrogatories follow in numbered order in this section.. Would you please identify yourself by stating your name. James Charles 3:03 Law Student Date of Filing Jane Jones BBO# 123456 Supervising Attorney Boston University
. please assume the following:3 A. "premises" as used herein means the buildings and grounds at 45 Maple Street. [Include in this section any special definitions that will help answer the interrogatories. 3724 ) ) ) ) ) ) )
DEBORAH SMITH. memoranda and other papers in your possession that will enable you to make full and true answers to each of the interrogatories that follow.] 1. Roxbury. correspondence. CLINTON MILTON. SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. agents and servants.
Civil Litigation Program 197 Friend Street Boston. Housing and Divorce Litigation Packets. MA 02114 (617) 371-1270 X 1802
CERTIFICATE OF SERVICE4 (Please consult examples of Interrogatories in the Discovery.)
There are examples of interrogatories in the Housing and Divorce Litigation Packets. that it was adequately explained to him.Instructions for the Preparation of Interrogatories 1.
. and the judge can see. 2. Depending upon how elaborate your interrogatories are. the judge can easily find which are yours in the file. 4. even lawyers need to be reminded what their responsibility for answering interrogatories is and what legal authority requires them to do so. It is useful to say whose interrogatories they are so when you go in to compel the other side to answer. on your motion to compel or for sanctions for not answering properly. 3. However. particularly when you are dealing with unrepresented parties who may not know the legal rules with which they must comply. you need a Certificate of Service with your interrogatories. We put instructions into the introduction of your interrogatories. the other side tries to argue that he did not understand what was expected of him. This permits you to avoid having to repeat full definitions throughout the set of questions. Please note that court Rules may limit the number of Interrogatories you may ask. you may want to have definitions or instructions to simplify the questions throughout. This preamble becomes particularly useful when. As in all subsequent court documents after the Complaint. Interrogatories are just another kind of court document. This tells him. Be sure to check the applicable rules for your type of case.
that the Defendant produce for inspection and copying at the office of the Plaintiff's attorney. Samples of completed requests for production may be found in your Housing and Civil Practice Litigation Packets. memoranda. James Charles 3:03 Law Student
.] 1. maintenance or work performed by or on behalf of the Defendant at the premises. . . [List in this section those documents which you want in as general but as detailed a fashion as possible. certain documents described below.] DEBORAH SMITH By her attorneys. CLINTON MILTON. pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure. "premises" as used here means the building and grounds at 45 Maple Street. Roxbury. . MODEL REQUEST FOR PRODUCTION OF DOCUMENTS FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. . When selecting those documents to comply with this request. you may assume: A. Defendant
PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
The Plaintiff requests. 197 Friend Street. or writings concerning repairs. Any and all records. . 3724 ) ) ) ) ) ) )
DEBORAH SMITH. receipts. ss. Massachusetts.K. . Plaintiff v. notes. [This format is very similar to the preceding one for interrogatories. SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. Boston.
Date of Filing
Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston. MA 02114 (617) 371-1270 X 1802 CERTIFICATE OF SERVICE
Please consult examples of Requests for Production in the Discovery. Housing and Divorce Litigation Packets.
an objection.L. each of the following requests is deemed admitted unless a denial. ) ) ) ) ) ) ) SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No.] DEBORAH SMITH By her attorneys. Plaintiff v. According to that rule. ss. The Plaintiff informed Clinton Milton on January 1. or both is received within 30 days from your receipt of these requests.] You are hereby requested to admit or deny the following facts: 1. Samples of requests for admissions may be found in your Housing and Civil Practice Litigation Packets. we explain what the legal rules are for responding to requests for admissions in order to make it difficult for the other side to claim ignorance. MODEL REQUEST FOR ADMISSIONS FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. CLINTON MILTON. James Charles 3:03 Law Student
. (YR) that the following conditions existed in her apartment: [The specific request for admission phrased in full sentences as statements of fact are included in this section. [As with our interrogatories and requests for production. Defendant
PLAINTIFF'S REQUEST FOR ADMISSIONS
You are hereby requested to admit the truth of the following facts pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure. 3724
Date of Filing
Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston.)
. MA 02114 (617) 371-1270 X 1802
CERTIFICATE OF SERVICE (Please consult the Housing Litigation Packet for an example of Requests for Admissions.
m. I have no place to go.5 On January 2.4 I live at 45 Maple Street. 3721 ) ) ) ) ) ) ) THE AFFIDAVIT OF THE PLAINTIFF. Plaintiff v. 6. turned and left as abruptly as he came in. Massachusetts with my three children: John. at the top of his voice. he would forcibly evict me himself. Milton then told me. (YR). age 2. the Defendant Clinton Milton came to my door. He said nothing else. Helen. Defendant
I. Roxbury. 5.M. 4. ss. SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. 3. age six months. unlocked it without knocking and just came in without my permission. DEBORAH SMITH. and James. 2. DEBORAH SMITH2
DEBORAH SMITH. MODEL AFFIDAVIT FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. having been sworn by a Notary Public. Apartment 34. age 3. the next day. that unless I got out of the apartment by 5:00 p. CLINTON MILTON. Deborah Smith
. I am the Plaintiff in the above-captioned action.6 Mr. make the following statements:3 1.
personally appeared Deborah Smith."]
. _____________________ Robert Burdick 7 My commission expires June 1. ss: COMMONWEALTH OF MASSACHUSETTS On this X day of X. to be the person whose name is signed on the preceding or attached document. your affiant may sign a statement that ends with "Signed under the pains and penalties of perjury. before me.SUFFOLK. proved to me through satisfactory evidence of identification which was a Massachusetts driver’s license. 200X. (YR). [Note: If a Notary Public is not available. the undersigned notary public. and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of her knowledge and belief.
the purpose of the Affidavit is to state relevant facts in support of or opposing an issue in front of the trier of fact. and any other facts which make the statement relevant to the case.). etc. If the affidavit is for a pending case in a court or administrative agency you need to use the appropriate caption and docket/case number. Be specific and accurate. If a paragraph must state an affiant's opinion. conclusion. Deborah Smith. Motions for Summary Judgment. If the court or administrative agency allows it. the statement must be relevant. his/her relationship to the case or party. make the following statement under the pains and penalties of perjury:" 4. Remember. or knowledge not gained by actual observation. 6. The Affiant is basically a witness. 7. remember that the notary must actually witness the Affiant signing the Affidavit."
. 3. 5. Please note that Affidavits are used in many circumstances but primarily in support of motions and other pleadings which by their terms call for them (Motions to Attach. the affiant's statement can be made under the pains and penalties of perjury. Just state what you need to: a) make the Affiant credible. testifying under oath but not subject to cross examination. Consequently. 2. Use separate paragraphs for each significant fact. 8. "Upon information and belief. State the name of the Affiant. If the Affiant is unsure of the exact time or date of an event use the following language: "on or about________. You must identify who the Affiant is.Instructions for the Preparation of Affidavits 1. Affidavits are generally not admissible at trial due to the inability to crossexamine. (YR)" and then describe what happened. and b) support your contention. If you use a notary public. in which case this first line will read: "I. you must preface the text with the words.
A. SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. as the Plaintiff's landlord. Defendant
PLAINTIFF'S MEMORANDUM IN SUPPORT OF HER MOTION FOR PARTIAL SUMMARY JUDGMENT
B. [INSERT IN THIS SECTION FACTS ON WHICH CASE TURNS AND APPLICABLE LEGAL STANDARDS].
. LAWS CH. ARGUMENT
SINCE THERE ARE NO CONTESTED ISSUES OF MATERIAL FACTS. ONCE INFORMED OF THAT CONDITION.] II. CLINTON MILTON.N. thereby "intentionally" acting against the Plaintiff's interests. SUMMARY JUDGMENT IS PROPER. CONSTITUTES AN INTENTIONAL FAILURE TO PROVIDE ESSENTIAL SERVICES PROHIBITED BY MASS. . MODEL LEGAL MEMORANDUM FORMAT COMMONWEALTH OF MASSACHUSETTS SUFFOLK. §14 (YR) to recover damages and obtain injunctive relief. [Place in this section a brief introduction of the purpose of your memo and the nature of the case that the court must review and any relevant facts or prior proceedings that the court needs to learn about to act on your motion. intentionally refused to provide her with adequate heat for the last five months of the winter. 186. The Defendant. 186.
This memorandum is written in support of the Plaintiff's MOTION FOR PARTIAL SUMMARY JUDGMENT. THE DEFENDANT'S FAILURE TO CORRECT THE INADEQUATE HEATING OF THE PLAINTIFF'S APARTMENT PROMPTLY. This is an action brought pursuant to Mass. because the Defendant. §14 (YR). Gen. . GEN. after being informed of the heating problem. did not take prompt action. Laws ch. 3724 ) ) ) ) ) ) )
DEBORAH SMITH. 1. Plaintiff v. ss. pursuant to Rule 56 of the Massachusetts Rule of Civil Procedure.
DEBORAH SMITH By her attorneys. . The format suggested is intended to serve that purpose. §14 (YR). James Charles 3:03 Law Student Date of Filing Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston.] III. . 186. The Plaintiff submits that she has unequivocally proven each element of her case. and is therefore entitled to partial summary judgment finding the Defendant liable to the Plaintiff for some amount of damages to be determined later. Laws ch. [The key to this section is making your legal argument as clear and logical as possible for the judge or hearing officer. MA 02114 (617) 371-1270 X 1802 CERTIFICATE OF SERVICE
.The Defendant. CONCLUSION
Mass. Gen. establishes liability for damages by a landlord who intentionally or knowingly fails to provide adequate heat.
SUPERIOR COURT DEPARTMENT TRIAL DIVISION CIVIL ACTION No. Roxbury. (The Defendant's Responses to Requests for Admissions. The Plaintiff and Defendant entered into a lease agreement on May 15. Apartment 34. c. The Defendant owns the building and is the Plaintiff's landlord. . 3.
. There were cracks in the window frames causing substantial cold drafts. d. the Plaintiff's apartment had the following conditions: a.O. 3724 ) ) ) ) ) ) )
DEBORAH SMITH. The Plaintiff's monthly rental is $470.
2. cooking pans. and Christmas decorations were damaged. (YR) for 45 Maple Street. The Plaintiff could not use her living room or closet where a considerable amount of water continually leaked in. Plaintiff v. Defendant
PLAINTIFF'S REQUESTED FINDINGS OF FACT AND RULINGS OF LAW
The Plaintiff requests that this Court make the following findings of fact: 1. MODEL REQUESTS FOR FINDINGS OF FACT AND RULINGS OF LAW COMMONWEALTH OF MASSACHUSETTS SUFFOLK. #4). 5. establishing Plaintiff's tenancy. CLINTON MILTON. At the inception of her tenancy. The facts in paragraphs 1 to 3 were admitted in the Defendant's answer to the Plaintiff's request for admissions and answer to her complaint. 4. . The bedroom tiles continually lifted up allowing dirt to collect. ss.00. books. (The Defendant's Answer. MA. (Admission #4). The apartment was infested with roaches and other vermin. paragraph 2). The ceiling in the apartment leaked. As a result various and sundry fabrics.
REQUESTED RULINGS OF LAW The Plaintiff requests that this Court adopt the following conclusions of law: 1. per se. McKenna v.E.2d 831. Ct. 325 N. Id. McKenna v.
.2d at 842. e. Ct. 184. App. under a written or oral lease.g. 168. either knowingly or when he should have known. In a rental of any premises for dwelling purposes. Hemingway. James Charles 3:03 Law Student Date of Filing Jane Jones BBO# 123456 Supervising Attorney Boston University Civil Litigation Program 197 Friend Street Boston. 843 (1973). Hemingway. there is an implied warranty that the premises are fit for human occupation. ."] DEBORAH SMITH By her attorneys.
3. 363 Mass. 304. 5 Mass. Begin I. permits a condition to exist which interferes with the use of the premises for residential purposes. MA 02114 (617) 371-1270 X 1802
2. for a specified time or at will. [Insert Rulings applying these legal principles to decide your case. 184. 293 N. A breach of the implied warranty of habitability occurs when the landlord. Begin II. 362 N. "The Defendant permitted the conditions set out in Finding of Fact Number 5 to exist. BHA v. A condition which violates the State Sanitary Code is. 363 Mass.
5. The landlord's implied warranty of habitability cannot be waived by a provision in the lease or rental agreement.2d 587 (1975). The tenant's obligation to pay rent is predicated on the landlord's obligation to deliver and maintain the premises in habitable condition. BHA v.E. a breach of the implied warranty of habitability.E.E. 6. 4. App. after having notice of them thereby breaching the implied warranty of habitability.2d 548 (1977).. 293 N. . 3 Mass.
CERTIFICATE OF SERVICE (See the Housing. Civil Practice and Divorce Litigation Packets for other formats for these Requests.)
Dorchester. Thumb agrees to so transfer the above mentioned sum in consideration of the Does' promise to vacate the premises as per this AGREEMENT.250. Massachusetts. and Mrs. At least two windows have broken sash cords. c. Dorchester. The floor in the back bedroom is splintered from age. Doe. and Jane and John Doe. Apartment #1. Mr. The Does agree to surrender the premises in good condition subject to reasonable wear and tear. On the date that the Does surrender the premises. These remaining monies ($6. tenants at 111 Peanut Street. SAMPLE AGREEMENT In consideration for the mutual promises as set forth below. the parties. their attorney may release half the funds held in the trust account ($6. no later than April 1. with the attorney for Mr. which new tenancy is to begin on or before April 1. attorney for Mr. 103
2.00). Thomas Thumb.P. As of the date of the signing of this Agreement the parties are aware that the apartment contains the following conditions: a. Boston. In the event that Mr. for the sole benefit of Mr. Doe do not present the above-mentioned written agreement to their attorney prior to their vacating the premises. 197 Friend Street. Massachusetts. Doe presenting to their attorney a written agreement which indicates the creation of a new tenancy in premises other than their current premises. d. No later than December 31. Doe. Thumb concerning the condition of the premises so vacated. e.00) to the Doe. Massachusetts. b. Resolution of any such dispute must be pursued independently of obligations created by this AGREEMENT. Robert Burdick. Doe agree to vacate the premises at 111 Peanut Street. owner and landlord of the premises at 111 Peanut Street. (YR) in consideration for receipt of the sum of twelve thousand five hundred dollars ($12. and Mrs. and Mrs. counsel for both parties will be present to jointly inspect the premises.00) will be released to the Does even if a dispute remains between the Does and Mr. There are marks in the ceiling in the back bedroom. MA 02114. in the client trust account at Greater Boston Legal Services (No interest is earned on the funds deposited in this trust account). (YR) as soon as. Thumb. who will deposit that sum. and Mrs. and Mrs.500. Upon Mr. and at such time as the Does vacate the premises and turn over any keys they have to the premises to Mr.500) by manner of a bank or cashier's check. Mr. Jeremiah Jonas. Remaining funds held in the trust account shall be released to the Does on or before April 1. and stained. their attorney may release the funds in the trust account only after the Does have vacated the premises. The walls and ceiling in the bathroom are cracked. payable to "Greater Boston Legal Services for the benefit of Jane and John Doe". (YR). Apartment #1.
3. make the following AGREEMENT: 1.
4. moldy. at Boston University Civil Litigation Program. Thomas Thumb will deposit the sum of twelve thousand five hundred dollars ($12. The walls and wallpaper throughout the apartment are stained from soot due to the condition of a faulty heating system. Dorchester.
from any and all actions. both in law and in equity.& Mrs. Doe. and Mrs. debts.
7. Doe hereby release and forever discharge Mr. cause or thing. and obligations whatsoever. both in law and in equity. his heirs. suits. disparaging. which they have ever had or now have. use or thing. MA 02114 (617) 371-1270 X 1802 _________________ Thomas Thumb __________________ Jeremiah Jonas BBO#67891 Attorney for Mr. Upon complete performance of their promises and obligations as set forth in this AGREEMENT. Thumb 14 Walnut Street Boston.
DATED THIS 9TH DAY OF DECEMBER.
8. Doe Boston University Civil Litigation Program 197 Friend Street Boston. his heirs. administrators. Thumb hereby releases and forever discharges the Does. Thumb. successors. (YR). successors. demands. against them upon or by reason of any matter. debts.
In further consideration of the Does' agreement to voluntarily vacate the premises. and assigns.6. against him upon or by reason of any matter. and obligations whatsoever. MA 02114 (617) 432-1488
. administrators. further agrees not to give a negative reference to any potential future landlord of Mr. their heirs. Mr. which he has ever had or now has. executors. or which could possibly be the basis upon which a future landlord may refuse to rent to the Doe. suits. successors. and assigns. claims. up to the date of the signing of this AGREEMENT. claims. Thomas Thumb. from any and all actions. Thumb's promises and obligations as set forth in this AGREEMENT. By this it is understood by the parties. including but not limited to any matter arising out of the current tenancy. executors. Mr. Upon complete performance of Mr. executors. that the Landlord is not to make any remarks to any potential future landlord of the Does which could be construed as negative. including but not limited to any matter arising out of the current tenancy. or assigns. administrators. up to the date of the signing of this AGREEMENT. and Mrs. _________________ Jane Doe __________________ Robert Burdick BBO# 064340 Attorney for Mr. demands.
MA. Executed as a sealed instrument the day and time you are in the clinic above written. executors. paid by Judy Jones and Ralph Jones. Signed in presence of ________________________ Witness ___________________________ Paula Piper. individually and as mother and next friend of Mark Piper. both in LAW and EQUITY. administrators.Q. (YR) In consideration of Six Thousand ($6. we hereby remise. individually and as mother and next friend of Mark Piper __________________________ Mark Piper
.000. SAMPLE RELEASE
June 17. successors or assigns we now have or ever had from the beginning of the world to this date and more especially on account of a landlord tenant dispute arising out of the Piper's tenancy at 400 Grampa Street. Judy Jones and Ralph Jones or their heirs. release and forever discharge the said Judy Jones and Ralph Jones from all claims. raised by way of counterclaims in the case of Paul Piper and Mark Piper v. Boston. the receipt whereof is hereby acknowledged.00) and no/100 Dollars to Paula Piper.
. MODEL AFFIDAVIT OF INDIGENCY AND SUPPLEMENT TO THE AFFIDAVIT OF INDIGENCY [NOTE: Please use the following link to access the affidavit of indigency and related documents on the Supreme Judicial Court’s website.gov/courts/courtsandjudges/courts/supremejudicialcourt/affmemo1.mass.gov/courts/sjc/affidavit-indigency-related-docs.] http://www.html or http://www.
388 23.VI.726 3.920 Yearly Income 13.328 2.713 37.134 1.038
. GREATER BOSTON LEGAL SERVICES INCOME AND ELIGIBILITY GUIDELINES FOR 2010
[NOTE: Please use the following link to access the Greater Boston Legal Services Income and Eligibility Guidelines.] GBLS Income Eligibility Guidelines .163 27.124 3.532 1.938 32.522 3.930 2.613 18.263 47. Family Size 1 2 3 4 5 6 7 8 Weekly Income 262 354 445 537 629 721 813 905 Monthly Income 1.2011 Elder clients and Medicare beneficiaries are not subject to the income guidelines.488 42.
.VII.com/rule303.html The text of Rule 3:03 and the Order Implementing Rule 3:03 are included on the following pages.] http://www. SUPREME JUDICIAL COURT RULE 3:03 and THE ORDER IMPLEMENTING SUPREME JUDICIAL COURT RULE 3:03
[NOTE: Please use the following link to access the Supreme Judicial Court Rule 3:03 and the Order Implementing Supreme Judicial Court Rule 3:03.sjccountyclerk.
Juvenile Court. to appear without compensation on behalf of the Commonwealth or on behalf of an indigent defendant in a criminal proceeding: (a) on a motion for a new trial in that court seeking post-conviction relief after the time for direct appeal has expired. or in the Supreme Judicial Court or the Appeals Court. assistant municipal counsel or assistant solicitor. permit a senior law student. the approval shall continue in effect until the date of his admission to the bar. city solicitor. shall be filed with the clerk of the Supreme Judicial Court for the county of Suffolk and shall be in effect. with the written approval by the dean of such school of his character. unless withdrawn earlier. until the announcement of the results thereof. town counsel. may appear without compensation (a) on behalf of the Commonwealth (including a subdivision of the Commonwealth or an agency of the Commonwealth or of a subdivision) in proceedings in any division of the District Court. (2) The expression "general supervision" shall not be construed to require the attendance in court of the supervising member of the bar. AND TO INDIGENT PARTIES IN CIVIL PROCEEDINGS (1) A senior law student in an accredited law school. or a law school authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor. Juvenile Court or Housing Court Departments or in the Boston Municipal Court Department. or (if such an appeal has been taken) after the appeal
. The term "senior student" or "senior law student" shall mean students who have completed successfully their next to the last time you are in the clinic of law school study. until the date of the first bar examination following the student's graduation. who has successfully completed or is enrolled in a course for credit in evidence or trial practice. (3) The written approval described in paragraph (1). qualified and supervised as provided in paragraphs (1) through (3) above. provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth assigned to the case by the Committee for Public Counsel Services or employed by a non-profit program of legal aid. and as to a student taking that examination. or Housing Court Departments or in the Boston Municipal Court Department. legal assistance or defense or a law school clinical instruction program. a regular or special assistant attorney general. For any student who passes that examination. (b) on behalf of indigent defendants in criminal proceedings in any division of the District Court. for a student or group of students.SJC RULE 3:03 LEGAL ASSISTANCE TO THE COMMONWEALTH AND TO INDIGENT CRIMINAL DEFENDANTS. Juvenile Court or Housing Court Departments or in the Boston Municipal Court Department. legal ability. provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth who is a regular or special assistant district attorney. or a corporation counsel. and training. and (c) on behalf of indigent parties in civil proceedings in any division of the District Court. (4) A justice of the Superior Court Department may. in his discretion. legal assistance or defense or a law school clinical instruction program. provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth assigned by the Committee for Public Counsel Services or employed by a non-profit program of legal aid.
1993. such a student may make appearances after graduation under the same or any other non-profit program of legal aid. 1993. to appear without compensation on behalf of the Commonwealth or indigent persons in civil proceedings. permit a senior law student. permit a senior law student. or a law school authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor. c. amended effective October 7. a justice of the Supreme Judicial Court or of the Appeals Court may. under > G. may appear in civil proceedings under the same conditions as a senior law student. 1986. 1989. effective December 1. effective January 1. 1994. (7) A senior law student. c. provided such appearance is not inconsistent with its rules. the Probate and Family Court or the Land Court Departments may. qualified and supervised as provided in paragraphs (1) through (3) above.L. as amended. 1989. qualified and supervised as provided in paragraphs (1) through (3) above. § 58. 1993. effective February 1. November 21. Amended May 29. in his discretion. September 29. or a law school authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor. 1986. qualified and supervised as provided in paragraphs (1) through (3) above. in his discretion. legal assistance. January 6. prosecution or defense. 1989. October 24.has been decided by the Supreme Judicial Court. (8) A student who has begun his next to the last time you are in the clinic of law study in an accredited law school. may appear without compensation on behalf of the Commonwealth or indigent persons before any administrative agency. 276. (6) If an appearance by a senior law student is not permitted as of right by this rule. be deemed a substitute for the course requirement provision of paragraph (1) of this rule.
. Subject to the time limitations expressed in paragraph (3) of this rule. or (c) on a petition heard in that court.L. (9) Rule 3:03 applies only to a student whose right to appear commenced at least three months prior to graduation from law school. (5) A justice of the Superior Court. may. provided that the written approval referred to in paragraphs (1) and (3) states that he is currently participating in a law school clinical instruction program. 1990. 1993. or law school clinical instruction. for review of District Court refusal to authorize pretrial release of defendant on personal recognizance. in the discretion of an appellate justice. effective July 1. effective November 1. Successful completion of or enrollment in a course for credit in appellate practice in an accredited law school. to appear in those courts without compensation on behalf of the Commonwealth or indigent persons. qualified and supervised as provided in paragraphs (1) through (3) above. or (b) on an appeal for review of sentence in the Appellate Division of that court under G. 278. §§ 28D.
S.C. Rules 3:07 and 3:08. (b) obtain from the client a signed document in which the client acknowledges that he has been informed of the student's status and authorizing the named student to appear for and represent him in the litigation or proceedings identified in the document. The expression 'without compensation' used in paragraphs (1). it is hereby ordered that the January 17. provided the conduct of the case is under the general supervision of a regular or special assistant district attorney or a regular or special assistant attorney general. 2. city solicitor or town counsel. (4). and (d) file the document and the written appearance of the supervising attorney with the court or administrative agency in which the litigation or proceedings are pending.J.C.J. 5. (c) have the document approved by the supervising attorney. 1980.C. 1981. Rule 3:03 does not require that a law student shall be approved by the dean of a law school or be a senior student in order to participate in litigation lawfully conducted by another. or an assistant municipal counsel or assistant solicitor. Therefore. That part of Rule 3:03(1)(a) allowing a senior student to appear on behalf of the Commonwealth in criminal proceedings in specified courts. 6. previous orders implementing former Supreme Judicial Court Rule 3:11 must be revised. implementing former Supreme Judicial Court Rule 3:11 is repealed and replaced by the following order: 1. 7. 615 (1935). notwithstanding any opinion or dictum contained in Opinion of the Justices. A student acting under Rule 3:03 shall comply with the standards of professional conduct set out in S. The appearance of law school students in behalf of clients in cases or proceedings pending before administrative agencies or in any court of the Commonwealth shall be governed by S. 289 Mass. (6) and (7) of Rule
.ORDER IMPLEMENTING SUPREME JUDICIAL COURT RULE 3:03 As a result of the order of this court dated June 26. effective January 1. Failure of an attorney supervising students to provide proper training or supervision may be ground for disciplinary action or revocation or restriction of the attorney's authority to supervise students. Before a senior student shall act or appear for any person (client) under Rule 3:03. as amended by order dated July 18. The rules of law and of evidence relating to privileged communications between attorney and client shall govern communications made or received by any student acting under the provisions of Rule 3:03.J. he shall: (a) disclose to the client his status as a law student. The name of a student so participating may appear on a brief or memorandum submitted in such litigation. 4. 3. when the participation consists of such activities as interviewing parties or witnesses. shall be construed to permit such a student to appear on behalf of a municipality under the general supervision of the latter's corporation counsel. (5). 1975 order. investigating facts or law. or writing briefs or memoranda. Rule 3:03 and any orders from time to time issued by this court in implementation of that rule. 1979. 607.
8. 1985. effective July 1. Deleted. May 29. 1981. be construed to prohibit the receipt of a fee by a law student from a client for work on a particular case. amended June 7. It shall.3:03 shall not be construed to prohibit the receipt of a fixed compensation paid regularly by a governmental agency or legal assistance program acting as the employer of a law student. effective July 1. effective January 1. 1985. however. Adopted June 26. 1980. 1986.
cityofboston. Clerk Social Security: Office of Hearings and Appeals State Lead Paint Lab (J.XIII.U. MA 02201 (formerly Boston Rent Equity Board) Boston University Clinical Off.) Suffolk Probate Court. Clerk Suffolk Superior Court. Jodrey Constables Volunteer Lawyers Project 667-7000 635-4287 742-0625 988-4000 788-6545 414-5749 788-8691 635-7368
353-3148 989-7000 732-5500 782-6521 ext 208 232-4660 296-4000 348-8500 626-6560 626-6400 626-5200 288-9500 983-7000 635-5300 726-2000 768-5850 636-5000 427-7000 ext 564 523-3213 983-6665 788-8300 788-8175 720-5733. Info: Division of Unemployment Assistance (DUA) Hearings: Board of Review Dorchester District Court.P. Clerk Brookline District Court. Divorce Clerk New England Medical Center Roxbury District Court. Room 709 Boston. Civil Clerk Suvalle. FREQUENTLY USED TELEPHONE NUMBERS
http://www. 720-5737 fax 423-0648
Beth Israel Deaconess Medical Center Boston Assessment Department Boston Bar Referral Service Boston Housing Authority Boston Housing Court.gov/rentalhousing/phone. Clerk Faulkner Hospital Inspectional Services Department (ISD) Requests for Inspections Massachusetts General Hospital Middlesex Probate Court. Clerk Boston Rental Housing Resource Center Boston City Hall. Hospital) Boston Municipal Court. (School) Boston Water and Sewer Commission Brigham & Women's Hospital Brighton District Court. Clerk Carney Hospital Department of Transitional Assistance. Clerk Boston Medical Center – Records (Formerly Boston City Hospital and B.
Boston Roxbury Multi-Service Center Solomon Carter-Fuller Mental Health Center South End Community Health Center
INSTITUTION ADDRESS Different Addresses for Different Divisions 43 Garrison Road Brookline. Ma 02114 74 Fenwood road Boston. SOURCES OF HEALTH INSURANCE OR HEALTH CARE
INSTITUTION NAME Mass. MA 02445 25 Staniford Street Boston. MA 02118 1601 Washington Street Boston. MA 02121 85 East Newton Street Boston.IX. MA 02118 Contact the person at the phone number to attain specific address
INSTITUTION PHONE/FAX NUMBER 1-800-841-2900 (617) 277-8107 fax: (617) 734-6385 (617) 626-8500 fax: (617) 626-8515 (617) 626-9300 fax: (617) 626-9578 (617) 427-4470 fax: (617) 427-0461 (617) 626-8700 fax: (617) 626-8929 (617) 425-2000 fax: 1(617) 425-2043 (617) 414-4794 fax: (617) 414-4796 a list of names and numbers is available from Susan Akram or Judi Diamond
Boston Center for Refugee Health and Human Rights
Metro Boston DMH Facilities
. MA 02115 317 Bluehill Avenue Dorchester. Health Insurance Brookline Mental Health Center Eric Lindemann Mental Health Center Massachusetts Mental Health Center.
X. Joan Scanlon.D. M. M. Golub. (Neuropsych testing) Stuart Clayman MAILING ADDRESS 18 Payson Rd. MA 02135 Mass Mental Health 74 Fenwood Road Boston.
. Belmont. MA 02115 599 Canal Street. MA 02478-2718 89 Park Street North Reading.O Box 1903 Brookline. MA 02115 Mass. (Psychiatric Evaluations. MA 78 St. (psychiatric Evaluations)
734-3572 fax: 724 2757 489-4015 Cell 877-1500
Belmont.D. MA 02446
1(978) 521-5511 home: 1(978) 887-8840
Barry Roth. Ph. Licensed Psychologist (Speaks Spanish) Herbert P. One West Lawrence.Min.D. MA 01840 PHONE/FAX NUMBER 484-8050 1(978) 664-4243 fax: 1(978)207-1329 782-8355 fax: 254-9053 jay@braindoctor. M. MA 01864 181-4 Lakeshore Road Brighton. Ph. (Psychological and Neuropsych testing) Patricio Dhimitri. D.
626-9446 1(978) 687-6488 fax: 1(978) 687-4511
unknown 1689 Beacon Street Brookline. MA
June Wolf. Ph.D. Rose Street Jamaica Plain. Mental Health 74 Fenwood Road Boston. (Psycho-diagnostic testing) William Stone. Ph. Certified for Victims of Torture and Forensic Psychiatry) Robert Tittman. MA 02445 For Sensitive Materials: P. PSYCHOLOGICAL TESTING RESOURCES
NAME Anthony Kalinowski. Ph.
and at the downtown office. you can also download the appropriate Litigation Packet by accessing the file from the Blackboard 8. If you have questions. speak to your professor.Code Enforcement and Summary Process Employment Rights Clinic [ERC] Litigation Packet Family Law – Divorce Disability – SSI & SSDI Discovery In addition to links to resources and bibliographies (most of which are online).XI. LITIGATION PACKETS FOR HEFD AND ERC
We have developed five additional bodies of materials for helping you to work up your cases that we refer to as “Litigation Packets. on reserve in the Library. There are paper copies of these Litigation Packets in the Clinic Office at the Law School. and proposed information to be gathered. suggested steps to be taken in working up the case. When you are assigned a case.
.” These Litigation Packets cover the following subjects: Housing . these Packets include additional samples of every sort of document a case of this type may require.