What is a subpoena?

Subpoenas are legal orders to provide evidence.  There are two major types of subpoenas: (i) subpoenas that require someone to testify; and (ii) subpoenas that require someone to disclose evidence in their possession, such as documents.  These two types of subpoenas are often referred to as subpoenas (i) ad testificandum; and (ii) duces tecum.   

In the United States, judges and other court officers, including lawyers, may issue a subpoena.  If a lawyer issues a subpoena and the person subject to the subpoena fails to comply, the lawyer can ask a court to force the person to comply.

Subpoenas are especially useful for gathering evidence from third parties.  For example, let's say Patty sues David.  David is a party to the case and subject to the jurisdiction of the court so obtaining evidence from David should not be a problem for Patty.  But let's say Terry, a third-party who is not in the case, has critical evidence that Patty needs.  To obtain the evidence Patty's lawyer might rely on a subpoena, to try and compel Terry to turn over the evidence that Patty wants.  

I uploaded a video on subpoenas to YouTube:





What is respondeat superior?

Respondeat superior means that an employer can be held liable for a tortious act of his employee if the employee commits the tort while performing his duties as an employee.  The employer will not be liable if the employee commits the tort for his own interests and where his actions are not within the scope of his employment.

For example, let's say David delivers pizza for Ricky's pizza shop.  While delivering a pizza David drives carelessly and slams his car into Patty's car.  Patty should be able to sue David for negligence and also sue Ricky's pizza shop pursuant to a theory of respondeat superior.  

But let's say David decides to play a joke on Patty by jumping in front of her and screaming while she is walking down the street.  Patty is terrified and sues for David for assault.  Jumping in front of Patty and screaming has no connection to David's job and the prank was committed to further his own interests.  Ricky's pizza shop is probably not liable for David's actions.


Federalism video updated



I updated my YouTube video on federalism a bit.  That video (and others) had some technical issues especially with sound and I hope this version is more pleasant to watch.



What do courts mean by ripeness and mootness?

When courts talk about ripeness and mootness they are referring to whether it is too early (the case is not yet ripe) or too late (the case is moot) for courts to decide the case.  If a case is ripe the court is saying it is the right time to decide the case.  If you look at the U.S. Constitution you will see that federal courts can only decide actual "cases and controversies" - - when a case is ripe and we have the right parties then the case is an actual case or controversy.  The basic principle is that courts should issue decisions that will affect the parties.  

Courts should not issue hypothetical decisions as to what should happen if certain events were to occur in the future or hypothetical decisions as to what should have happened in the past.

Here is an example of where a case is not yet ripe.  Let's say a plaintiff wants to build a store on a certain piece of property.  But the city in which the plaintiff wants to build the store must first decide whether to allow the plaintiff to build the store or not.  In October the plaintiff learns that the city will probably reject his application.  The city will issue its final decision in November.  Can the plaintiff sue the city in October?  Probably not.  The case is not ripe because the city has not issued its final decision.  The plaintiff did not suffer any harm yet and is only predicting that he will suffer some harm in the future.

Mootness is where the court is not in a position to provide any relief - - it's too late.  This can happen if a law changes or if there is a change in the parties' status.  A famous example of a case that the Supreme Court declared moot was where a plaintiff sued after he was denied admission to a law school.  Later he was admitted to the law school.  When the case came to the Supreme Court the plaintiff was already finishing his final year of law school.  The Supreme Court said it could not decide the case because the case was moot.  The plaintiff would never apply to the law school again -  - the plaintiff no longer had a personal interest in the outcome of the case.

If you are trying to decide whether a case is moot or not, ask yourself, "Is the plaintiff still injured?  Is it possible that the plaintiff could be harmed by the defendant in the same way again?"  If the answer to both questions is "No" then the case is probably moot.  



What is an implied private right of action?

First look at the phrase "private right of action".  Action here means a civil lawsuit.  Private right of action means a private person - - we're not referring to the state - - has the right to commence a lawsuit.  

When a legislature passes a law, the state can prosecute someone who violates the law.  For example, federal law prohibits people from defrauding others in connection with the sale and purchase of securities (securities = stocks etc.)  That means the state has the power to prosecute people who defraud others in connection with securities transactions.   But private persons also have the right to sue defendants they allege violated certain types of securities laws - - this is a private right of action.

 US law generally refers to two types of private rights of action - - (i) express and (ii) implied.  An express private right of action is where the legislature states in a statute that private persons have the right to sue if someone violates the law. For example, let's say Congress passes a law prohibiting people from participating in a criminal enterprise and expressly authorizes private persons to sue in federal court if they were victimized by the criminal enterprise.  Congress is granting people an express right of action based on the federal law.

But some private rights of action are implied.  The legislature might not expressly state that private persons have a right to sue but the courts conclude that the legislature intended to empower private persons to sue defendants who violated the law.  The court would say the statute creates an implied private right of action.

Also, courts have concluded that people have an implied right to sue based on certain types of Constitutional violations.  

For example, the United States Constitution does not say that private persons have the right to sue federal agents who violate their rights.  But the Supreme Court concluded that there is an implied private right of action to sue federal officials who violate a person's Constitutional rights (Bivens v. Six Unnamed Agents - - post on that is here).

Below is a video on private rights of action.


Are expert witnesses paid?

Yes, expert witnesses are usually paid.  Experts are typically hired by one of the parties to a case and are compensated for their time developing their expert opinions.  If fact, if you look at the Federal Rules of Civil Procedure, you will see that experts are required to disclose their compensation.  

In some high profile cases experts can be paid quite a bit for their preparation time.  


What is an expert witness?

There are two types of witnesses - - fact witnesses (sometimes called percipient witnesses or eyewitnesses) and expert witnesses.  

Most witnesses are so-called fact witnesses and can testify as to what they personally saw, heard, or experienced.   For example, a witness to a car accident can testify about what he personally saw.  But could he testify as to whether the car that was involved in the accident was properly designed?  Probably not.  Even if he has an opinion, a judge won't allow him to testify because his lay opinion will not help the jury.  

To testify about car design and many other topics that require specialized knowledge, one must be an expert.  Experts can provide opinion testimony about matters that ordinary people  cannot.  Think about television crime dramas where medical professionals testify about the time and cause of death even though they did not see the victim die.  

Before a witness can testify as an expert he has to satisfy several criteria.  If you look at Federal Rule of Evidence 702 you can see the standards in the federal courts for a witness to testify as an expert.  First, the judge will have to be satisfied that the witness is actually an expert based upon education, training, knowledge, or skill.  For example, a doctor or a medical researcher might have the appropriate education and training to testify about a new drug.

Second, the judge must be satisfied that the expert's testimony is based upon sufficient facts or data and that the expert applied the proper principles to the facts or data to reach his conclusion.  It's not enough for a doctor to say that he believes a certain type of medicine was inappropriate to treat a patient.  The  doctor must satisfy the judge that his analysis was sufficiently rigorous.

Finally, if the judge agrees that the witness is an expert, and that the expert applied the proper principles and methods to the facts and data to reach his conclusion, the witness will be allowed to testify if the judge believes that the expert's testimony will be helpful to  the jury.  

I uploaded a video to my Youtube page on expert witnesses:


What is a deposition?

A deposition is where a witness or a party must answer questions under oath before trial.  The deponent's answer are transcribed and today many depositions are videotaped.  Depositions typically take place in a conference room.  The judge is not present.  

Depositions are an important discovery device - - remember, discovery is how parties obtain and share information prior to trial in a civil litigation.   

Depositions are a useful way for lawyers to learn what witnesses will later say at trial.  A witness who contradicts his deposition testimony will come across as unbelievable at trial.   Based on deposition testimony and other evidence acquired during discovery, parties will often move for (and oppose) summary judgment.

Depositions usually take place after the parties exchange documents.  Lawyers can then ask deponents about the documents.  For example, in a business litigation, an executive might be questioned for hours or even days about emails that he sent and received.




What is remand? New Video.

Remand is where a court gives a case back to another court.  If you are studying US law you will typically see a court remand a case back to another court in two situations: (i) after an appeal; (ii) after a case is improperly removed to federal court.  I talked a bit about remand after improper removal in an earlier post.  You will also often see an appellate court remand a case back to a trial court.  For example, if an appellate court thinks that a trial court applies a law incorrectly, the appellate court can remand the case back to the trial court and instruct the court to apply the law correctly.

I uploaded a video on remand:

New Impleader Video

Back in May I posted a short entry on impleader.  Below is a video on impleader that I just uploaded.

 In the federal courts impleader is governed by Rule 14 of the Federal Rules of Civil Procedure.  States also allow impleader.  

Generally speaking, the Federal Rules (and state rules) favor resolving related disputes in a single case to promote efficiency.  Impleader allows a defendant to sue a third party based on the principle that if the defendant is liable to the plaintiff, then this third party is liable to the defendant.  The defendant is now also called a third party plaintiff.  The original plaintiff's lawsuit against the defendant/third party plaintiff and the defendant/third party plaintiff's lawsuit against the third party defendant are resolved in the same case.

Let's say A sues B.  B's insurance policy requires C to reimburse B if B owes money to A.  B can implead C into the case.  B sues C as a third party plaintiff arguing that if B owes any money to A, C must owe money to B.