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Read and Analyze Common Law Cases
Bill
Gipson
was a bus
driver for the
Swank
Transport Company.
A
number of
years ago when Gipson was
walking to a restaurant from work, Michael Sawyer,
his
old intimate friend, stopped and
offered him a ride. They had not seen each other
for
several years since Sawyer had
moved to another city. They carried on an exciting
talk
as Sawyer drove. Suddenly
Sawyer
’
s car was struck by a
car running through a red
light,
whose
driver
was
William
Tord,
a
tourist
from
another
state.
All
the
three
individuals
were
badly
injured
and
were
taken
to
hospital.
Miserably
Sawyer
died
from
injures received in the crash a week later.
Several days after the
accident, Gipson
’
s boss,
David Swank telephoned Gipson
and said
that he had learned that the police had found
about an ounce of heroin under
the
front
seat
of
Sawyer
’
s
card
and
going
to
charge
Gipson
with
possession
of
narcotics
with
intent
to
distribute.
Swank
also
stated
that
the
company
had
made
a
decision
to fire Gipson that morning.
There are at least two
legal disputes involving Gipson that could rise
out of this
scenario:
1. A
civil dispute among Gipson, Tord, and
Sawyer
’
s estate regarding
liability for
the accident;
2. A dispute between Gipson and the
government regarding the criminal charges.
Gipson suffered grave
injury as a result of the crash. From whom could
he ask
for damages, and who was liable
for the accident? Was Sawyer at fault? Tord? Was
each
of
them
jointly
and
severally
liable?
Gipson
hired
attorney
Adrian
Neff
to
represent
him. Once Gipson signed a retainer, Neff would
later enter an
appearance
and become
Gipson
’
s attorney of record.
Neff, the
attorney, then explained that some factors should
be considered before
deciding on the
forum. Gipson may be able to sue in several
places: (a) in the state
trial court
where Gipson lives, (b) in the state trial court
where Tord lives, (c) in the
state
trial court where Sawyer
’
s
estate is located, (d) in the federal district
court sitting
in
Gipson
’
s state, (e) in
the federal district court sitting in
Tord
’
s state, or (f) in the
federal district court sitting in the
state where Sawyer
’
s estate
is located. The reason
Gipson
could
sue
in
a
federal
district
court
was
the
existence
of
diversity
of
citizenship. Neff suggested Gipson sue
in a federal court. The suit would be brought
in the U.S. District Court sitting in
Gipson
’
s own state since
this would be the most
convenient venue
for Gipson.
Having
decided
on
a
court,
Neff
started
preparation
for
the
incoming
suit:
he
drafted
a complaint, the first pleading of the case,
naming Gipson as the plaintiff and
stated
a
cause
of
action
in
tort
for
negligence
against
Tord
and
Sawyer
’
s
estate
as
1
codefendants.
After
this
issue
of
law,
Neff
then
summarized
and
submitted
several
issue of fact that
he felt could establish a cause of action for
negligence. Some of the
allegations
were based upon the knowledge of Gipson, while
others were based upon
information
and
belief.
The
ad
damnum
clause
of
the
complaint
demanded
$$100,000.00 in
damages. Finally, he attached a written demand for
a jury trial to the
complaint and filed
the both documents with the court.
The next proceeding is service of
process.
It was achieved when a copy of
the
complaint
and
summons
was
served
on
both
Tord
and
the
legal
representative
of
Sawyer
’
s estate.
Neff did not served these parties himself; he
retained s process server
who,
after
serving
the
defendants,
filed
an
affidavit
of
service
with
the
court
indicating the
circumstances under which the service was
accomplished. Service was
made before
the statute of limitations. Once the defendants
were properly served, the
court
acquired
in
personam
jurisdiction
over
them.
In
the
pre-trial
proceedings
that
ensued, Tord filed a
motion to dismiss, claiming
Gipson
’
s failure to state a
cause of
action. The court denied the
motion.
Because the suit
had been brought in the federal court, the
governing procedural
law
would
be
found
in
the
Federal
Rules
of
Civil
Procedure,
which
provided
defendants
with
two
kinds
of
response:
pre-
answer
motion
or
answer.
If
without
a
pre-
answer
motion,
Tord
and
Sawyer
’
s
estate
must
file
an
answer
to
Gipson
’
s
complaint within twenty days, according
to the Federal Rules of Civil Procedure. Tord
filed
his
answer
almost
immediately.
Since
Sawyer
was
dead
and
unable
to
communicate
with
his
attorney
about
the
accident,
the
attorney
for
the
estate
had
a
number of difficulties in drafting and
filing an answer within twenty days. To avoid a
default judgment against the estate,
the attorney filed a motion asking for an
extension
of thirty days. The court
granted the motion.
The
answer filed on behalf of
Sawyer
’
s estate denied the
allegation of negligence
and
raised
an
affirmative
defense
of
contributory
negligence
against
Gipson.
The
estate asserted that if Sawyer had been
partially liable for the accident, it was mainly
because Gipson had distracted him
through his conversation in the car. Certainly,
the
answer of
Sawyer
’
s estate also stated
a cross-claim against codefendant Tord, alleging
that the accident had been solely by
Tord
’
s negligence.
Tord
’
s answer also raised
the
defense of contributory negligence
against Gipson and cross-claim against
Sawyer
’
s
estate,
alleging that the accident had been caused solely
by the negligence of Sawyer
or
Sawyer
and
Gipson
together.
On
this
same
theory,
Tord
’
s
answer
also
raised
a
counterclaim
against
Gipson.
At
this
point,
five
assorted
claim,
cross-claims
and
counterclaims
had
been
filed
by
the
parties
with
the
court.
These
claims
and
their
relationship to each other are
demonstrated below:
1. Plaintiff
Gipson
’
s original complaint
for negligence against Tord and against
Sawyer
’
s estate.
2. Defendant
Tord
’
s counterclaim for
negligence against plaintiff, Gipson.
3.
Defendant
Tord
’
s
cross-claim
for
negligence
against
his
codefendant,
2
Sawyer
’
s estate.
4. Defendant
estate
’
s cross-claim for
negligence against his codefendant, Tord.
These three parties were
ready to seek discovery. Once their pleadings were
filed,
each attorney first served
written interrogatories on the opposing parties,
which were
followed
by
depositions,
requests
for
admissions,
requests
for
production,
and
requests for examination. Tord rejected
answering question during his deposition. As a
result, Gipson
’
s
attorney had to file a discovery motion named
“
Motion to
Compel
”
,
asking
court order compelling Tord to answer. A hearing
was then held on Gipson
’
s
motion. After hearing the
parties
’
argument, the judge
granted the motion and ordered
Tord to
answer those questions. Each party then filed a
motion for summery judgment.
The judge
denied the motions and the case was ready for
trial.
As the trial date
approach, each of the attorneys received a notice
requiring them
to
appear
before
a
magistrate
for
pretrial
conference.
During
the
conference,
the
magistrate prepared a pretrial
statement on the case for the trial judge with the
help of
the attorneys;
the
statement contained those facts
that
had been stipulated, the facts
that
were still in issue, and a list describing the
tangible evidence and witnesses that
each attorney intended to introduce
during the trial.
The case
was eventually set
for trial.
The three
parties, their
attorneys
and the
witnesses assembled in the courtroom.
The judge, Justice Black White, entered, took
the
bench,
and
instructed
the
bailiff
to
summon
a
jury
panel
for
the
trial.
After
the
prospective jurors
were
seated in
the jury
box,
voir
dire
began.
Several
jurors were
challenged for cause and dismissed.
Several other jurors were dismissed as a result of
peremptory
challenge.
A
panel
of
twelve
jurors
plus
two
alternates
was
ultimately
selected.
After the jury had been
seated, Gipson
’
s attorney
rose and asked the judge that
he
wished
invoked
the
rule
on
witness.
The
bailiff
led
all
witnesses
out
of
the
courtroom with the
judge
’
s instruction.
Gipson
’
s attorney then began
the trial with his
opening statement to
the jury. When he finished, the attorneys for Tord
and Sawyer
’
s
estate also delivered their opening
statements. Thereafter,
Gipson
’
s attorney began to
call his witness as Gipson had the
burden of proof. The first witness is a ten-year-
old
girl who had seen the accident that
day.
Tord
’
s
attorney quickly
rose
and asked
for
bench
conference;
he
declared
that
he
objected
to
the
witness
on
the
basis
of
competency. The judge overruled the
objection upon being satisfied that the witness
was old enough to understand the
obligation to tell the truth.
The
jury
then
was
summoned
again
into
the
courtroom,
and
Gipson
’
s
attorney
immediately resumed
his case in chief with direct examination. After
several question,
Tord
’
s
attorney
again
objected
on
the
theory
that
the
child
’
s
answer
had
not
been
relevant
and
therefore not
admissible.
This
time the judge upheld
the objection and
ordered
the jury to disregard the
girl
’
s answer and strike it
from the record. Gipson
’
s
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