Torts Outline

Torts
· Tort is state based
o Some of it is universal, where others is not
· Most intentional torts are crimes

What happens to a tort case as it goes through the system?
· The initial client interview with lawyer
o Client comes in to show evidence and wants to know how much they can win
o Contingency fee: my fees are normally $250 an hour, but I will represent you for % of your winnings
§ Torts is a huge gamble for the attorney, if contingency cases do not win, attorney out all that money
§ Advantages: contingency fee puts poor people in court, and contingency fees eliminates frivolous lawsuits
§ Disadvantage: contingency fee cases have too much incentive
· Plaintiff’s attorney wants to sue someone with money
o Most people aren’t going to get sued, because they don’t have money
· Attorney takes the case and they go to court
o They have to draft a complaint
§ Just what you need to do or say to get into case, don’t want to tell the Defendant too much
· Motion to dismiss (Demurr)
o Plaintiff says “I want a trial, it wouldn’t be fair to dismiss now”
§ Look at complaint, is there a cause of action…no you’re out
· Defendant files an answer denying allegations of complaint
o Also includes affirmative defenses
§ Everything he says is true but there is more to the story. Additional facts to make it right. Must be raised in answer, if not then lost forever, burden of proof is on the defendant
· Discovery: depositions…want to find out what case is about. The defendant can then figure out where he stands
o Interrogatory questions (goes on about 2-3 months)
o Gathering of evidence
· Motion for summary judgment or Motion for Summary Disposition
o S for D – are there disputed facts? If not then no need to go to trial
§ Federal judges throw out trials here a lot. Judges are the gate keepers don’t want it to go to trial
· Trial if Summaries are denied
o Use your evidence
o Preponderance of evidence: it is more likely than not the plaintiff has the burden of proof
· When plaintiff rests, defense attorney is going to push for Dismiss of Jury and a motion for Directed Verdict
o Plaintiff doesn’t have a case and it should be thrown out
§ ONE OF THE LAST GATEKEEPER MOTIONS
o If defense loses this motion they are going to start making offers
· Defendants introduce their side, then def is done
· Jury receives jury instructions
o P makes a set of jury instructions
o D makes a set of jury instructions
o Judge finalizes and writes out jury instructions
o JURY DOESN’T INTERPRET THE LAW, BUT THEY INTERPRET THE FACTS
§ Can last for hours
· To the attorneys judge asks if there are any objections
o Say yes, then it can go to the appellate court
o Say no, can’t appeal
· Verdict from jury
· 2 motions filed
o Judgment motion not with standing
§ Motion judgment NOV
· No reasonable person would decide what this jury did
§ Motion for new trial (remittirur)
· Throw this trial out, do a new one, there were mistakes
o Judge cannot change jury decision
§ Plaintiff’s constitutional rights to a jury trial
o Either lower verdict, or I will file for a new trail
§ P will usually agree
· Everything stated in trial is typed up
o Sends to court of appeals if appealed
· Party files briefs
· Judge looks over it
o 3 judges decide
§ Affirm or Reverse
· If you have the right to appeal to supreme court, you have to write a motion
· An opinion is written up
o You have to survive all of these things in order to get your check

INTENT
· Elements
o Consciousness
o Intent to do the act You need the first three
o Consequences (intended to cause consequences)
o Intended harmful or offensive consequences
o Intended for motive
§ Motive is irrelevant
· To “know with substantial certainty act will occur”
o Circumstantial: what a reasonable or average person would think/do. Is admissible in court to prove the subjective intentàusing an expert to talk about age of understanding
· Garratt v Dailey
o Child knew that something was going to happen if he moved chair
o He knew with substantial certainty that pulling the chair would cause P to fall to the ground
o You don’t have to know what you are doing is bad or illegal, you just have to know consequences are going to happen
· McGuire v Almy
o Mentally insane person can still know the consequences of their actions
§ “I’m going to kill you if you come any closer”
§ Pulls out the leg to a chair
· She knew that she was going to hurt P
· Talmage v Smith
o Intent can be transferred from one person to another
§ He intended to hit one boy, but instead hit another one
§ You have to have intent to commit a battery before transfer
o When talking about trespass, intent can be transferred
§ Intent to commit one: battery, assault, False Imprisonment, Trespass to land, Trespass to chattels – the big 5
o Transfer to intend to commit battery can be transferred to intent to trespass
§ Ball thrown to hit X, rolls into B’s pro