Pleadings and Practice Outline

These notes are for Donald Budman’s Fall 2011 Pleadings and Practice Exam at Charleston School of Law. With these notes, I aced the midterm. The’re exhaustingly thorough.

Exam

· objective

· Mainly true false

· Couple fill in the blank

· Come mainly out of the lectures

· Only a few questions come out of the reading.

Grade

· 1/3 from exam 1

· 1/3 from exam 2

· 1/3 assignments and class participation

Formatting of assignments

· Name on upper right hand corner (of each page?)

· 12 point font

· If there’s an assignment and you’re not in class when it’s due, email it to him on due date, and then bring hard copy to class the next time you come.

Availability

· Best way is by email

· Can call him

· Can make arrangements to meet before or after class, but doesn’t have regular office hours

CLASS NOTES CLASS 2, AUGUST 18, 2011, Thursday

Nada

CLASS NOTES CLASS 3, AUGUST 22, 2011, Tuesday

Fees, and how to pay for stuff

3 types of fees, generally:

· 1) Hourly fee

o typically you see hourly fees while defending a claim.

o Charleston hourly fees range from 175 – 600 per hour

o Retainer

§ Advance up front payment that you can do one of two things with:

ú A) advance retainer. Client pays you x dollars in advance to hire you and it’ll be up to you as to whether or not you’ll apply that retainer towards future billings, or

ú B) whether you’ll take the advanced payment as just that and bill the client per hour thereafter.

· 2) Flat rate

o specified amount for a specified service

o ex: real estate service, preparation of will, preparation of power of attorney.

o Most real estate lawyers charge about $300 or $475 to do a closing, but where they make their money is the commission on the title insurance.

· 3) Contingency fee

o no fee unless we win for you

o typically used in an injury claim by the plaintiff’s lawyers

o standard is 1/3 of P’s recovery. If case goes to trial or if suit is filed, it goes up to 40%.

o Sometimes with complicated types of stuff, like med mal, it can get up to 45%.

o This is the one that levels the playing field.

o The thing is that when you take a contingency fee case, you’re taking a huge risk that you’re going to get paid. And that’s why you’re entitled to take so much of the settlement.

o Levels the playing field

o Enables a poor person to hire a really great lawyer.

· You can even do a hybrid of the three types sometimes.

Costs & expenses

· There’s a difference between a court cost and a case expense

· Court cost:

o Includes a filing fee, cost of service of process, cost of court reporter for deposition, cost of preparation of transcript of court proceeding.

o Everything else would be an expense.

§ Travel to and from Florida to take deposition of doctor, hiring of your experts,

· To finance a med mal case in SC, you’re looking at 50k-70k in expenses.

· You are allowed to advance necessary expenses for the case from your own pocket. You can’t pay for your client’ s grocery bills, but you can pay to get a copy of their medical bills.

· We have to tell clients that our atty fee is calculated before we subtract expenses.

VERY IMPORTANT:

· Client says, “why should I have to pay you? Why shouldn’t the D have to pay the atty fees?”

· The response to this is that in most situations, the law doesn’t allow for that.

· There are two different types of cases in SC where you’re allowed to ask the court in your pleadings to require the D to contribute to the P’s attorney fees:

o 1) When there’s a contract between the parties that allows for the recovery of attorney’s fees.

o 2) In the event there’s a statute that allows for the recovery of attorney’s fees if