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英美法案例

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2021-02-27 15:40
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2021年2月27日发(作者:season)


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



3

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