Pretrial Outline - Part 2

a. Contingency

1. Normally 1/3 or 25% of settlement

b. Flat rate

1. This one thing costs $

c. Hourly

1. Bill off of a deposit or charge after the case is done

d. Contingency

e. Contract for representation

1. State what the matter is you’re representing them for (be very specific)
2. Describe work you’re going to do
   1. Describe also what you’re not going to do
3. What type of fee
4. Schedule for payment
5. Clause for representation termination
6. No guarantee of success or outcome
7. Signature from client and I have read and understand all of the terms etc.

a. Proportionality

1. Discovery costs should be proportional to claim cost

b. Fed rule that discovery conference must occur as soon practicable but at least 21 days before a scheduling conference is to be held or a scheduling order is due

c. Formal discovery tools

d. Both fed and state court have a duty to supplement discovery w/in reasonable time

e. Tools of formal discovery

1. Depositions
2. Interrogatories
3. Request for physical examination (entry into property or to see the thing)
4. Request to produce documents, electronically stored info, and things
5. Requests for admission
6. Required disclosures

f. NC Rule 26. General provisions governing discovery.

1. Discovery methods. – Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
2. Discovery scope and limits. – Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
   1. In General. – Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought. For the purposes of these rules regarding discovery, the phrase "electronically stored information" includes reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the parties agree otherwise or the court orders otherwise upon motion of a party and a showing of good cause for the production of certain metadata
      1. Specific Limitations on Electronically Stored Information. – In addition to any limitations imposed by subdivision (b)(1a) of this rule, discovery of electronically stored information is subject to the limitations set forth in Rule 34(b). The court may specify conditions for the discovery, including allocation of discovery costs.
3. Insurance Agreements. – A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is G.S. 1A-26 Page 2 not by reason of disclosure admissible in evidence at trial. For purposes of this subsection, an application for insurance shall not be treated as part of an insurance agreement.
   • Policy: helps decide damages and/or if the case should even go forward based on the insurance’s coverage
   • You can get the coverage and the policy but not the application

g. Federal law FRCP Rule 26 – General provisions governing discovery

1. (a) Required Disclosures.
2. (1) Initial Disclosure.
   1. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
      1. the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
      2. a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
      3. a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
      4. for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
3. Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
4. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
   1. an action for review on an administrative record;
   2. a forfeiture action in rem arising from a federal statute;
   3. a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
   4. an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
   5. an action to enforce or quash an administrative summons or subpoena;
   6. an action by the United States to recover benefit payments;
   7. an action by the United States to collect on a student loan guaranteed by the United States;
   8. a proceeding ancillary to a proceeding in another court; and
   9. an action to enforce an arbitration award.