mongue 00 fmt cx2 2/3/14 12:23 PM Page i The Empowered Paralegal Cause of Action Handbook mongue 00 fmt cx2 2/3/14 12:23 PM Page ii Carolina Academic Press ————— The Empowered Paralegal Series Robert E. Mongue The Empowered Paralegal: Effective, Efficient and Professional The Empowered Paralegal: Working with the Elder Client The Empowered Paralegal Professionalism Anthology mongue 00 fmt cx2 2/3/14 12:23 PM Page iii The Empowered Paralegal Cause of Action Handbook Robert E. Mongue Associate Professor Department of Legal Studies The University of Mississippi Carolina Academic Press Durham, North Carolina mongue 00 fmt cx2 2/3/14 12:23 PM Page iv Copyright © 2014 Robert E. Mongue All Rights Reserved Library of Congress Cataloging-in-Publication Data Library of Congress Cataloging-in-Publication Data Mongue, Robert E. The empowered paralegal cause of action handbook / Robert E. Mongue. pages cm Includes bibliographical references and index. ISBN 978-1-59460-933-6 (alk. paper) 1. Causes of actions--United States. 2. Legal assistants--United States-- Handbooks, manuals, etc. I. Title. KF8863.M66 2013 346.7302'1 2013021992 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America mongue 00 fmt cx2 2/3/14 12:23 PM Page v Dedicated to David D. Gregory Professor of Law University of Maine “In the collective memory of his students, Professor Gregory will always be remembered for the Socratic genius that he employed so effectively in class; his keen wit, often accompanied by a knowing smile and twinkle in his eyes; his passion for ferreting out seemingly elusive legal principles; and his compassion and warth for those he instructed.” 53 Me. L. Rev. 1 (2001). It was from Professor Gregory that I gained my first real understanding of the role of causes of action. mongue 00 fmt cx2 2/3/14 12:23 PM Page vii Contents Preface xiii Acknowledgments xv Part One · Understanding the Role of Causes of Action Chapter One · Introduction 3 The Legal Team 3 Causes of Action, Facts, Evidence, and Proof 6 Causes of Actions and Their Elements 6 Facts 7 Evidence 7 Proof 8 Stages of a Civil Proceeding 12 Stage One: Before Litigation 13 Stage Two: Pre- Trial 15 Stage Three: Trial 16 Our Hypothetical 16 Conclusion 18 Chapter Two · Using the Elements of a Cause of Action before Litigation 19 Using Cause of Action Analysis to Prepare for and Conduct a Client Interview 19 Using Cause of Action Analysis to Prepare for and Conduct Pre- Filing Investigation and Legal Research 32 Legal Research Planning 34 Investigation Planning 39 Conclusion 45 vii mongue 00 fmt cx2 2/3/14 12:23 PM Page viii viii CONTENTS Chapter Three · Using the Elements of a Cause of Action in Pre-Trial Litigation 47 Using Cause of Action Analysis in Drafting the Complaint and Other Pleadings 49 The Complaint 49 Responsive Pleadings — The Answer 51 Responsive Pleadings — Rule 12(b)(6) Motion to Dismiss 52 Responsive Pleadings — Defenses 53 Using Cause of Action Analysis to Prepare for and Conduct Discovery 54 Using Cause of Action Analysis to Prepare for and Conduct Alternative Dispute Resolution 59 Using Cause of Action Analysis in Motions for Summary Judgment 64 Conclusion 67 Chapter Four · Using the Elements of a Cause of Action in Preparing for Trial 69 Trial Tactics 69 Searching for Truth in All the Wrong Places 70 Presentation Counts — The Best Dog & Pony Show Wins 71 Demonstrative Aids and Exhibits 71 Be Prepared 72 Establish a Theme — Tell a Story 73 Litigation Notebooks 74 Trial Notebooks 79 Evidence Trees 80 Exhibit Lists and Pages 87 Witness Lists and Pages 91 Conclusion 93 Part Two · Common Causes of Action, Doctrines, Rules and Defenses Chapter Five · Contracts 97 Contract Elements 98 1. Offer 98 2. Acceptance 100 3. Intent/Mutual Assent 102 4. Consideration 103 5. Legality 105 6. Capacity 106 mongue 00 fmt cx2 2/3/14 12:23 PM Page ix CONTENTS ix Contract Causes of Action 108 1. Breach of Contract 108 2. Breach of Express Contract Warranties 109 3. Breach of Implied Warranty of Merchantability 110 4. Breach of Implied Warranty of Fitness for Particular Use 112 Contractual Remedies 114 1. Damages 114 1.1 Compensatory Damages 114 1.2 Punitive Damages 116 1.3 Consequential Damages 118 1.4 Liquidated Damages 120 2. Specific Performance 123 3. Rescission 125 4. Reformation 126 Equitable Causes of Action as Contract Alternatives 128 1. Promissory Estoppel 128 2. Equitable Estoppel 130 3. Unjust Enrichment 132 4. Quasi- Contractual Remedies: Quantum meriut and Quantum valebant 133 Defenses 135 1. Duress 136 2. Fraud 137 3. Misrepresentation 137 4. Undue Influence 138 5. Unconscionability 139 6. Mutual Mistake 141 7. Waiver 143 Chapter Six · Negligence 145 Negligence Causes of Action 145 1. Negligence 145 2. Gross Negligence 147 3. Negligence per se 147 4. Negligent Infliction of Emotional Distress 148 Negligence Doctrines and Rules 149 1. Res ipsa loquitur 149 2. Public Duty Doctrine 150 3. Good Samaritan Doctrine 151 4. Emergency Rule 153 mongue 00 fmt cx2 2/3/14 12:23 PM Page x x CONTENTS 5. Substantial Factor Rule 154 6. Foreseeability Test for Proximate Cause 155 Negligence Defenses 156 1. Contributory Negligence 156 2. Comparative Negligence 158 3. Assumption of Risk 159 4. Waiver (Written Assumption of Risk) 160 5. Good Samaritan Immunity 162 6. Sovereign Immunity 164 Chapter Seven · Strict Liability and Other Special Liability Actions 167 Strict Liability 168 1. Animal Owners Liability — Wildlife 168 2. Animal Owners Liability — Domestic Animals 169 3. Abnormally Dangerous Activities 170 4. Strict Product Liability 171 Other Special Liability Actions 173 1. Product Liability — Negligence 173 2. Product Liability — Breach of Warranty 174 3. Premises Liability 177 4. Premises Liability — Attractive Nuisance 178 5. Vicarious Liability 179 6. Motor Vehicle Vicarious Liability 181 Doctrines and Rules 182 1. Vicious Propensity Rule 182 2. Frolic and Detour Rule 183 3. Coming and Going Rule 184 4. Dangerous Instrumentality Doctrine 186 Defenses 188 Chapter Eight · Intentional Torts 189 Intentional Tort Causes of Action 190 1. Assault 190 2. Battery 192 3. Intentional Infliction of Emotional Distress 194 4. Invasion of Privacy 196 4.1 Invasion of Privacy— Unreasonable Intrusion 196 4.2 Invasion of Privacy— Appropriation 198 4.3 Invasion of Privacy— Public Disclosure of Private Facts 200 mongue 00 fmt cx2 2/3/14 12:23 PM Page xi CONTENTS xi 4.4 Invasion of Privacy— False Light in the Public Eye 203 5. Trespass 204 5.1 Trespass to Land 204 5.2 Trespass to Chattel 206 5.3 Toxic Trespass 208 6. Conversion 209 7. Defamation 211 7.1 Libel/ Slander 211 7.2 Slander of Title 213 7.3 Commercial Disparagement 215 8. Nuisance 217 8.1 Private Nuisance 217 8.2 Public Nuisance 220 9. False Imprisonment 221 10. Sexual Harassment 223 11. Fraud and Misrepresentation 224 11.1 Fraud 225 11.2 Misrepresentation (Negligent Misrepresentation) 227 12. Malicious Prosecution/Abuse of Process 229 Doctrines and Rules 230 1. Transferred Intent Doctrine 230 2. Actual Malice Rule 232 3. Defamation per se 235 4. “Coming to Nuisance” Doctrine 237 Defenses 238 1. Consent 238 2. Self- Defense 240 3. Defense of Others 241 4. Defense of Property 242 5. Privilege 243 Index 245 mongue 00 fmt cx2 2/3/14 12:23 PM Page xiii Preface Even as it is just beginning a new case, a good legal team may envision it- self weeks, months, or years, in the future at the point where the judge in that case is instructing the jury. The team members envision themselves as confi- dent in the outcome of the case as the judge instructs the jury that they must apply the law to the evidence of facts produced at trial. Since the judge is in- structing the jury to apply the law which has provided the team with the frame- work on which the team has built its case from the beginning through each stage of the legal proceeding, the members of the legal team are confident they have produced evidence of each fact necessary to prove each element of the causes of action now being explained to the jury by the judge. This relatively short scenario has much more substance and requires much more understanding than may first appear. That substance and understanding is the subject of Part One of this book. In Chapter One, some of the key con- cepts are introduced: 1. The legal team, 2. The difference between facts, evidence, and proof, 3. Causes of action and their elements, 4. The connection between the elements of causes of action, facts, evi- dence, and proof of those elements, 5. Stages of a civil proceeding. In Chapter One we introduce a hypothetical fact pattern which will be used to demonstrate the utilization of those concepts at each stage of a legal proceeding, starting with preparation for a client interview and ending with the trial, to achieve the vision described above. Each of the following chapters in Part One illustrates that utilization. In Chapter Two we focus on using cause of action analysis to prepare for and con- duct a client interview, investigate a client’s case, conduct legal research, en- gage in settlement discussion, and draft the initial pleadings. Chapter Three then examines the role of cause of action analysis in preliminary motion practice, discovery and pre- trial motion practice. Chapter Four demonstrates the use xiii mongue 00 fmt cx2 2/3/14 12:23 PM Page xiv xiv PREFACE of cause of action analysis to develop a trial strategy and a trial notebook de- signed to implement that strategy.