Posted: - January 30, 2009

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WHAT YOUNG LAWYERS SHOULD KNOW

EFFECTIVE PRETRIAL
PROCEDURE AND MOTION PRACTICE IN LOUISIANA
DISTRICT COURTS

LADC NORTH LOUISIANA
DEFENSE LAWYERS SEMINAR

UNIVERSITY CLUB
COURSE NO. 0112090130
JANUARY 30, 2009

SCOTT J. CRICHTON, JUDGE 1st JUDICIAL DISTRICT COURT 501 TEXAS STREET, SUITE 300D SHREVEPORT, LA 71101 PHONE: (318) 226-6818 FAX: (318) 429-7604 E-MAIL: jcrichton@firstjdcla.org judgescottcrichton.com

JONATHAN P. MCCARTNEY WILKINSON, CARMODY & GILLIAM 400 TRAVIS STREET SHREVEPORT, LA 71101 PHONE: (318) 221-4196 FAX: (318) 221-3705 E-MAIL: jmccartney@wcglawfirm.com

JERRY EDWARDS BLANCHARD, WALKER, O'QUIN & ROBERTS 400 TEXAS STREET, SUITE 1400 SHREVEPORT, LA 71101 PHONE: (318) 221-6858 FAX: (318) 227-2967 E-MAIL: jedwards@bwor.com

    
TABLE OF CONTENTS

General Protocol ……………………………………….……      2

Defaults ………………………………………………………      4

Exceptions and Motions …………………………………….      5

Motions For Summary Judgment ………………………….      7

Discovery Issues, Disputes and Motions to Compel ……….    14

Procedure for Obtaining Trial Settings ……………………    19

Pretrial Considerations ………………………………………   20

Jurors, Costs, etc. ……………………………………………    21

Appendix   A  (Appendix 3 to Rules 3.2 and 9.3) …………………   
            B  Civil Division Calendar 2009
First Judicial District Court ………………………  
            C  Scheduling Order – Bench Trial …………………..  
            D  Scheduling Order – Jury Trial …………………….




The focus of this presentation is on motion practice in light of recent changes in the Louisiana Code of Civil Procedure and the Louisiana Rules of Court.  Various issues in civil pretrial procedure in district courts are addressed with an emphasis on Title II of Rules for Louisiana District Courts as well as strategy at the pretrial level.  It is hoped that lawyers practicing in north Louisiana will benefit from this presentation.


                            Scott J. Crichton
                            Jerry Edwards
                            Jonathan P. McCartney
                            January 30, 2009

GENERAL PROTOCOL FOR DISTRICT COURTS

Title II, Chapter 9 of the Rules for Louisiana District Courts contains rules for civil proceedings in district courts.   The first seven rules in the chapter address protocol and general guidelines with respect to the daily order of business, the calling of the docket, the form of pleadings, and order signing.

Rule 9.0 Daily Order of Business
To provide for the expeditious administration of justice, to the extent practicable the court shall hear uncontested matters and the trials of motions or exceptions on days on which trials on the merits are not scheduled.

If uncontested matters and the trials of motions or exceptions are heard on days on which trials on the merits are scheduled, the court will, where practicable, maintain the following order of business:

(a) Uncontested matters, including preliminary defaults.
(b) The trial of motions or exceptions that do not require the testimony of  witnesses.
(c) The trial of motions or exceptions that require the testimony of witnesses.
(d) Trials on the merits.

Rule 9.1 Matters Scheduled But Not Heard
Whenever practicable, matters should be heard in the order placed on the docket. If the trial of a matter is begun but not concluded before court is adjourned, that trial should take precedence the following day, when practical.
If the court is unable to hear a scheduled matter, the matter should be rescheduled for hearing at the next available date and time.


Rule 9.2 Matter Heard by Judge to Whom Allotted
    Except as allowed by La. Code Civ. Proc. Art. 253.3, all contested matters must be heard by the judge to whom the matter was allotted.  If all parties and the court receiving the matter consent, a judge other than the one allotted the action may hear the matter.  The judge to whom the action has been allotted may designate the order signing judge or any other judge to sign such orders and set such hearings, and in his or her absence, to hear such matters where necessary to comply with law, or when deemed to be an emergency, in accordance with La. Code Civ. Proc. Art 253.3

Rule 9.4 Presentation of Pleadings to the Court
Each district court’s procedures for presentation of pleadings to the court and filing with the clerk of court are set forth on Appendix 7.
Appendix 7 (Rule 9.4)

First Judicial District Court - All pleadings shall be taken to the clerk of court's office for filing. Initial filings, including all succession matters and minor's settlements, shall be filed with the clerk, randomly assigned a docket number, and assigned to a section of the court. The clerk shall then deliver all filings which have an attached order or judgment  to the assigned judge. After acting on the requested relief, the assigned judge shall return the original filing to the clerk.

    Twenty Sixth Judicial District Court – All pleadings must be presented to the Clerk of Court.

Rule 9.5 Court’s Signature (amended 11/3/08; effective 1/1/09)
All judgments, orders, and rulings requiring the court’s signature must either be presented to the judge for signature when rendered or, if presented later, contain the typewritten name of the judge who rendered the judgment, order or ruling.
If presented later, the responsible attorney or the unrepresented party must circulate the proposed judgment, order or ruling to counsel for all parties and to unrepresented parties and allow at least three working days for comment before presentation to the court. When submitted, the proposed judgment, order or ruling must be accompanied by a certificate regarding the date of mailing, hand delivery or other method of delivery of the document to other counsel of record and to unrepresented parties, and stating whether any opposition was received.
    The page of the judgment or order containing the judge’s signature line must reflect the docket number and title(s) of the pleadings(s) at issue.  This rule does not apply to default judgments.
See La. C.C.P. articles 1911-1922

Rule 9.6 Form of the Pleadings
All pleadings must be typed or printed legibly, double-spaced, on legal-sized white paper, and written in the English language. Margins must be 2" at the top and 1" on the sides and bottoms. Quotations and footnotes may be single-spaced. Once a matter is allotted, the docket number and the division or section assigned the matter must be indicated in the caption.

Rule 9.7 Signing of Pleadings
Each pleading must be signed by an attorney or by the party thereto proceeding pro se. The correct mailing address, street address, phone number, and facsimile number, if any, of the person signing the pleading, and in the case of an attorney, the Louisiana Bar Identification Number, must appear below the signature.

II.  DEFAULTS
Rule 9.19 Defaults
A party may move for a preliminary default either in open court or in writing. By moving for a preliminary default the requesting attorney or party is certifying to the court that the defendant in the principal or incidental demand has been properly served and has failed to answer within the time prescribed by law. A party seeking to confirm a default judgment must prepare and file into the record a certificate to be signed by the clerk of court showing the date and type of service, and the absence of a timely answer.

See La. C.C.P. articles 1701-1704
Crichton Comment – Thus, the typical motion for confirmation of default might include (i) either testimony (if in court) or an affidavit (if in chambers) attesting to the accuracy of the allegations of the petition, which in many cases involves an amount of indebtedness whether by open account, promissory note, conventional obligation, dishonored check, or tort; (ii) a certificate signed by the clerk of court showing the date and type of service, and the absence of a timely answer; (iii) in the event of an obligation in which attorneys fees are recoverable, an affidavit of the plaintiff counsel attesting to time and services rendered, hourly rate utilized to point of motion as well as anticipated time needed for post judgment collection efforts; (iv) in certain cases where attorney’s fees in an open account case under R.S. 9:2781 or dishonored check case under R.S. 9:2782, a copy of the required demand letter and return receipt showing the date received by the debtor; and (v) a formal Judgment consistent with the requested relief.

Regarding the notice requirement of La. C.C.P. art 1702A, Act 512 of 2001 amended the statute to include a requirement that notice of the date of the entry of a default judgment be sent at least seven days, exclusive of legal holidays, prior to the confirmation of a default judgment when the party in default has previously made an appearance of record.  The notice must be sent by certified mail by the party obtaining the default judgment to the counsel of record for the party in default, or to the party in default, if there is no counsel of record.  The 2001 Comments indicate that the amendment is designed to conform the default procedure to the rules previously set forth in Russell v Illinois Central Gulf Railroad, 96-2649, La. 1/10/97, 686 So.2d 817.  In Russell, the Supreme Court wrote:


III.  EXCEPTIONS AND MOTIONS
Rules 9.8 through 9.10 set forth the procedural requirements for the courts and counsel with respect to exceptions and motions requiring a contradictory hearing, those that may be presented ex parte, those that require a memorandum, and applicable time considerations.

Rule 9.8 Exceptions and Motions Requiring Contradictory Hearing and Ex Parte Motions
    (a)  Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, must be accompanied by a proposed order requesting the exception or motion be set for hearing. If the exceptor or mover fails to comply with this requirement, the court may strike the exception or motion, or may set the matter for hearing on its own motion. To assist the court in scheduling the hearing, the exception or motion must state: (1) whether the case is set for trial, and, if so, the trial date; and (2) whether testimony will be offered at     the hearing.

    (b)  No hearing on an exception or motion will be scheduled until at least fifteen days after filing.  A party seeking to have an exception or motion heard less than 15 days after filing must show good cause and must state in the exception or motion the reason why an expedited hearing is necessary.

    (c)  Ex Parte motions-  Paragraphs (a) and (b) do not apply to:
Unopposed motions;
Motions in which all affected parties have joined; or
Motions permitted by law or by these rules to be decided ex parte.
Any motion that may be decided ex parte must be accompanied by a proposed order, except a motion for the court to give in writing its findings of fact and reasons for judgment under La. Code Civ. Proc. art. 1917.

    (d)  Motions and Exceptions Referred to the Merits. If a party filing a motion or exception wishes to refer it to the merits, the party must file an unopposed motion, accompanied by a proposed     order, asking that it be referred to the merits. This rule does not apply to motions for summary judgment (see Rule 9.10).  If the court finds that the interests of justice would be served by referring the motion or exception to the merits, the court may do so.

    (e) Unopposed Motion. An "unopposed motion" is one to which all affected parties have consented.  Before representing to the court that the motion is unopposed,  the mover must contact all parties affected by the motion and obtain their consent.  The moving party must certify in the motion that the consent required has been met.

Rule 9.9 Memoranda Supporting or Opposing Exceptions and Motions
    (a) When a party files an exception or motion, that party must concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum must be served on all other parties so that it is received by the other parties at least 15 calendar days before the hearing, unless the court sets a shorter time.

    (b) A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum must be served on all other parties so that it is received by the other parties at least eight calendar days before the     hearing, unless the court sets a shorter time.

    (c) The mover or exceptor may furnish the trial judge a reply memorandum, but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4:00 p.m. on a day that allows one full working day before the hearing. For example, if the hearing is set for Friday, the reply memorandum must be received no later than 4:00 p.m. the preceding Wednesday. If the hearing is set for Monday, the reply memorandum must be received no later than 4:00 p.m. the preceding Thursday.

    (d) Parties who fail to comply with paragraphs (a) and (b) of this rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus     necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of untimeliness.

    (e) Any party may, but need not, file a copy of the memorandum with the clerk of court. See Rule 9.4 and Appendix 7 to determine whether a particular judicial district requires that memoranda be filed with the clerk of court or sent directly to the presiding judge.

     (f) Paragraphs (a) - (c) do not apply to the following motions:

1. A motion for an extension of time to perform an act.
2. A motion to continue a pretrial conference, hearing, motion, or trial of an action.
3. A motion to add or substitute parties.
4. A motion to amend pleadings or to file supplemental pleadings.
5. A motion to appoint a guardian, curator or tutor .
6. A motion to intervene.
7. A motion to withdraw or substitute counsel of record (but any such motion must comply with Rule 9.13).
8. A motion to consolidate.
9. Any unopposed motion or joint motion.
10. A motion for the court to give in writing its findings of fact and reasons for judgment under La. Code Civ. Proc. art. 1917.
11.  A motion to compel a response to discovery, when no response has been made.

Any motion listed in (1) through (11) must state the grounds in support, cite any applicable rule, statute, or other authority justifying the relief sought, and comply with Rule 9.8 to the extent applicable.

IV.  MOTIONS FOR SUMMARY JUDGMENT

C.C.P Article 966 – Procedure:

• Either the plaintiff or the defendant may move for summary judgment:

1. In the principal or any incidental action;
2. With or without supporting affidavits;
3. For all or part of the relief for which he has prayed.

• Summary judgment is designed to secure the just, speedy and inexpensive determination of an action.

• Summary judgment is favored and shall be construed to accomplish these ends.

• A motion for summary judgment shall be granted after adequate discovery or after the case is set for trial, if the mover can show that:
            

1. There is no genuine issue as to any material fact; and
2. He is entitled to judgment as a matter of law.

•  The mover has the burden of proof to show that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law.

But, if the mover would not have the burden of proof on that issue at trial, then he does not have to negate all essential elements of the adverse party’s claim or defense.

In that case, all he has to do is point out to the court that there is an absence of factual support for one or more elements of the adverse party’s claim, action or defense

•  After that, the adverse party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, or the motion will be granted because it means that there is no genuine issue of material fact.

• A summary judgment can be granted to dispose of a particular issue, a theory of recovery, a cause of action or a defense in favor of one or more parties, even though it does not dispose of the entire case.

    In Babin v.Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00) 764 So.2d 37,  the Louisiana Supreme Court provided a definitive statement of the adverse party’s burden when faced with a well-pleaded motion for summary judgment:

This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses), which demonstrates he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied,97-0281(La.3/14/97),690So.2d41.

    The time limitations established by La. C.C.P. art. 966(b) are mandatory.  See Buggage v. Volks Constructors (La. 5/6/06) 928 So.2d 536 (La. 2006) in which the Court wrote:

The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court.

Affidavits: C.C.P. Article 967

Must be made on personal knowledge

As to affidavits by experts, this article was “judicially amended” to exclude them from the requirement of “personal knowledge” in Independent Fire Ins. Co. v. Sunbeam Corp. 755 So.2d 226 (La. 2000), subject to the Daubert Test.

Must set forth facts that would be admissible in evidence

Must show affirmatively that the affiant is competent to testify on such matters

If any papers or parts of papers are referred to, sworn or certified copies must be attached to or served with the affidavit

With court permission, affidavits may be supplemented by depositions, answers to interrogatories or by other affidavits

The adverse party cannot rest on the mere allegations or denials of his pleading, but must set forth specific facts (by affidavit, deposition, answers to interrogatories, etc.) showing that there is a genuine issue for trial.  If he can’t, summary judgment will be granted against him.

The court can refuse to grant summary judgment, or continue the hearing on the motion, if the adverse party can show (through affidavits) that it is unable at that time to present affidavits or other evidence essential to justify its position.  This is one of those “as is just” provisions.
Crichton Comment:  In light of the amendment to Code of Civil Procedure Art. 966 about 15 years ago and the “favored” status of summary judgment motions, the following examples constitute recurring scenarios where a motion for summary judgment will likely be filed:

    (a)  A medical malpractice case in which the plaintiff has no expert witness to prove standard of care, deviation from standard of care and causation (R.S. 9:2794).  The Supreme Court in Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228 (La. 1994) held that in most medical cases, because of the complex medical and factual issues involved, the plaintiff cannot carry his burden without a medical expert.  The practical effect of Pfiffner is that the plaintiff will not be able to survive a defense motion for summary judgment if he cannot produce a medical expert to prove the elements of R.S. 9:2794, unless the case is one of obvious medical negligence.  Samaha v. Rau (La. 2/26/08), 977 So.2d 880 (La. 2008), reinforces the Court’s decision in the Pfiffner case. In Samaha, after completion of discovery on this medical malpractice case, the defendant filed a motion for summary judgment contending that the plaintiffs lacked the necessary expert medical testimony to support their claims under La. R.S. 9:2794.  In support of his motion, the defendant doctor relied upon a certified copy of unanimous opinion of the medical review panel, in which the panel found no deviation from the standard of care and a copy of the plaintiffs’ answers to interrogatories and a request for production of documents.

    The plaintiffs opposed the summary judgment motion, arguing they had identified an expert witness in answers to discovery who might testify at trial.  In their answers to discovery, the plaintiffs admitted that no written report from this medical expert existed, but asserted instead that the substance of the expert’s testimony was orally conveyed to the defendant.  The plaintiffs supported their opposition to summary judgment with the same answers to interrogatories and request for production of documents which were relied on by the doctor in support of the motion.  The district court granted the motion; the court of appeal reversed; but the Supreme Court of Louisiana reversed the appellate court ultimately finding for the doctor. In an excellent opinion detailing the summary judgment procedure, the Supreme Court cited the Pfiffner case standing for the fact that expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except in obvious negligence cases.  Finding that this was not one of those cases the Supreme Court wrote:

Thus, the defendant doctor’s challenge, pointing out that the plaintiffs did not have expert medical testimony to prove their claim, was dispositive, if unmet, as to the plaintiffs’ ability to prevail at trial.

In support of his motion for summary judgment, i.e., in order to point out that the plaintiffs did not have expert medical testimony necessary to prove their claim,  Dr. Rau was not required to present expert medical testimony himself.  Dr. Rau did not have the burden of disproving medical malpractice, but only raising as to the basis for his motion that the plaintiffs could not support their claim.  Dr. Rau satisfied his initial burden on summary judgment by filing the motion and attaching the plaintiffs’ discovery responses.


We find the motion for summary judgment was properly granted. The defendant doctor did not bear the burden of proof at trial on the issue of whether he committed medical malpractice.  Thus, he was under no burden to present expert medical testimony in support of his motion for summary judgment to negate the plaintiffs’ claim.  Under the clear provisions of La. C.C.P. art. 966 C(2), once the plaintiffs’ lack of proof was claimed, and supported by the plaintiffs’ answers to interrogatories pursuant to Art. 967, the burden shifted to the plaintiffs to produce evidence sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial.

    (b)  A suit on a promissory note case in which the defendant files a general denial in his answer.  The plaintiff files a motion for summary judgment asserting no genuine issue of material fact and attaching an affidavit attesting to plaintiff’s status as a creditor and the amount owed.  In many instances – absent affirmative defenses alleged in the answer – the defendant debtor will not be able to survive the summary judgment motion.

    (c)  A slip and fall case in which defendant merchant asserts that the plaintiff will be unable to prove an essential element of his cause of action under La. R.S. 9:2800.6 because plaintiff is unable to satisfy the actual or constructive notice requirement of the statute.  The defendant may attach an affidavit of its employee who attests that he inspected the aisle ten minutes prior to plaintiff’s fall and did not observe a slippery substance on the floor.  At that point, the burden shifts to the plaintiff to produce factual support sufficient to counter the employee’s affidavit and to establish that he will be able to satisfy his evidentiary burden of proof at trial.

    (d)  A case in which insurance company asserts no coverage under the policy.
Note that the recent Amendment to La. C.C.P. art. 966B requires opposing affidavits to be served at least eight days prior to the date of the hearing.  Again, see Buggage, supra.

    Regarding C.C.P. 966D requiring that a motion for summary judgment be heard and rendered 10 days before trial, it was held in one case that the provision applies only to motions that do not dispose of the case in its entirety.  See also Pierre-Ancar v. Browne-McHardy Clinic, et al, 00-09 (La. App. 4 Cir. 1/16/02) 807 So.2d 344.

    In Strong’s Plumbing, Inc. v. Leon Angel Constructors,Inc., 35105 (La. App. 2d Cir. 10/12/01) 796 So.2d 926, the defendant moved for summary judgment more than 2 months before the trial.  The hearing was held one month before trial, and the court’s decision on the motion was rendered 3 days prior to trial.  The Court noted that the intent of the 10-day requirement is to “prevent the parties from being burdened with unnecessary trial preparation”.  The Second Circuit Court of Appeal concluded that in “primarily a paper case (where) the evidence on the issue presented to the Court in the motion for summary judgment would largely be duplicated at trial”, the plaintiff was not prejudiced by the court’s ruling on the motion for summary judgment 3 days before trial.
Expert Opinion Testimony in Affidavits for Summary Judgment:
A Continuing “Hot” Topic

Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 99-2257 (La. 2/29/00), 755 So.2d 226, rehearing denied (Apr 17, 2000) held that expert opinion testimony in the form of affidavit or deposition may be considered in support of or opposition to a motion for summary judgment; abrogating Jones, 619 So.2d 111, Miceli, 691 So.2d 283, Harris, 734 So.2d 1, Simmons, 748 So.2d 473, Read, 725 So.2d 85, Griggs, 722 So.2d 15, Duhon, 720 So.2d 117, Ivy, 576 So.2d 1117, Hidalgo, 254 So.2d 493, McCoy, 452 So.2d 308, Barnett, 631 So.2d 84, and Bockman, 691 So.2d 815. LSA-C.C.P. art. 967.
.  .  .  .
“Contrary to the unsettled state of the jurisprudence under our state law, federal courts, which are governed by virtually the same "personal knowledge" requirement as Louisiana Courts, routinely consider expert opinion evidence in affidavits or depositions at the summary judgment stage under the factors enumerated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See e.g., Ruffin v. Shaw Indus., Inc., 149 F.3d 294 (4 Cir.1998) (holding that because an expert opinion affidavit would not be admissible at trial under Daubert, it was not admissible on motion for summary judgment); First United Financial Corp. v. United States Fidelity & Guar. Co., 96 F.3d 135, 136- 137 (5 Cir.1996) (noting that "the admissibility of expert testimony is governed by the same rules, whether at trial or on summary judgment"); Hayes v. Douglas Dynamics, Inc., 8 F.3d 88 (1 Cir.1993) ("the evidentiary rules were 'not intended ... to make summary judgment impossible whenever a party has produced an expert to support its position,' " but "where an expert presents 'nothing but conclusions--no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected,' such testimony will be insufficient to defeat a motion for summary judgment").
.  .  .  .

After all, it would be inequitable and illogical to allow a party who has eyewitness testimony to be granted a summary judgment over a party who has no eyewitness testimony, but who does have expert opinion evidence, which if believed, would contradict the eyewitness testimony. In such a case, the party with only expert opinion evidence may have actually prevailed at trial but would lose on summary judgment because his evidence would not be admissible as it is not based on personal knowledge
.  .  .  .  

Thus, having determined that, rather than automatically excluding expert opinion evidence at the summary judgment stage, the Daubert-Foret standards should be considered by the trial judge in deciding whether to admit expert opinion evidence, several important underlying principles must be reinforced. The first is that the trial judge cannot make credibility determinations on a motion for summary judgment. See Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-C-0201, p. 6 (La.10/19/99), 748 So.2d 417 ("[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony"); .  .  .   Second, the court must not attempt to evaluate the persuasiveness of competing scientific studies. In performing its gatekeeping analysis at the summary judgment stage, the court must "focus solely on the principles and methodology, not on the conclusions they generate."  .  .  .  Third, the court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion  . . . Fourth, and most importantly, summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert's opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial...

Willis v. Medders, 00-2507 (La. 12/8/00) 775 So.2d 1049.  In this products liability action against the manufacturer of a vehicle, the plaintiff alleged that the vehicle had a defective seatbelt restraint system.  The manufacturer moved for summary judgment and attached expert witness affidavits to its motion.  In his opposition, the plaintiff attached expert witness affidavits.  The motion was granted by the trial court and affirmed by the appellate court.  The Supreme Court reversed both lower courts, concluding:

that the lower courts erred in failing to find a genuine issue of material fact created by the inferences reasonably drawn from the expert’s affidavit;
that the lower courts should not assess the persuasiveness of the plaintiffs’ experts views;
that when the party opposing summary judgment submits expert opinion evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion on a material fact more likely than not is true, the court should deny the summary judgment motion.

C.C.P. Article 968 : Effect of Summary Judgment:

    • Summary judgment is final
    • It is rendered and signed the same as a judgment after trial
    • Can appeal from the granting of a summary judgment
    • Cannot appeal from a denial of summary judgment

Remember, C.C.P. Article 967 of the Louisiana Rules of Civil Procedure does not preclude from consideration expert opinion testimony in the form of an affidavit or deposition submitted in support of or opposition to a motion for summary judgment. Assuming no credibility determination is at issue, the trial judge must consider this evidence if he or she determines that such evidence would be admissible at trial. If qualifying evidence is submitted in opposition to a motion for summary judgment, which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied.
Rule 9.10 Motions for Summary Judgment
    1. Rules 9.8 and 9.9 apply to motions for summary judgment.

    2. A memorandum in support of a motion for summary judgment must contain:
        (a) A list of the essential legal elements necessary for the mover to be entitled to             judgment;
        (b) A list of the material facts that the mover contends are not genuinely disputed;         and
        (c) A reference to the document proving each such fact, with the pertinent part             containing proof of the fact designated.
    3. A memorandum in opposition to a motion for summary judgment must contain:
        (a) A list of the material facts that the opponent contends are genuinely disputed;             and
        (b) A reference to the document proving that each such fact is genuinely disputed,         with the pertinent part designated.

Rule 9.12 Enrollment as Counsel of Record
Rule 9.13 Withdrawal as Counsel of Record
Rule 9.18 Oral Arguments
Oral argument is a privilege, not a right, and is within the court’s discretion.
* * *

V.  DISCOVERY ISSUES, DISPUTES AND MOTIONS TO COMPEL
Preliminary Points

The discovery stage of litigation is where the strengths and weaknesses of a case are revealed.

Since most civil lawsuits never go to trial, many are won or lost based on the testimony elicited at key depositions.

•    Discovery methods are tactical and strategic tools used to “find” the facts and to establish
      proof of them.

•    Rules of discovery are broad and liberal.  They are very flexible.

Standard is whether scope of inquiry is reasonably calculated to lead to the discovery of admissible evidence.

•   The rules are mostly self-enforced by the participating lawyers.

•   Most courts become involved with the actual process only when motions are filed, orders
     sought, or in pretrial conference.

•   Some courts today are taking a more active role in the discovery process.

•   There is the potential for abuse by discourteous, unprofessional lawyers; in fact, the
     discovery stage is where most of the abuse and unprofessional conduct occurs.

Formal discovery (La. C.C.P. articles 1420-1475)

     (1) Interrogatories  (C.C.P. arts. 1457-1460)

• May accompany petition (C.C.P. 1457 A)
• Or may be served anytime (C.C.P. 1457 A)
• Limited to 35 without leave (C.C.P. 1457)
• 35 additional on ex parte motion; more than second 35 requires hearing (C.C.P. 1457 B)
• Each interrogatory to be answered separately within 15 days after service unless court allows differently (C.C.P. 1458)
• Objections must be made in same time frame (C.C.P. 1458)
• Answers may be used at trial (C.C.P. 1459)
• Option to produce business records (C.C.P. 1460)

Rule 10.0 Interrogatories
A party shall be allowed to serve upon any other party, without leave of court, thirty-five interrogatories, as allowed by La. Code Civ. Proc. art 1457(B). A court may not restrict the parties to fewer than thirty-five interrogatories except by amendment to these rules.
 (2) Requests for Admission (La. C.C.P. articles 1466-1468)

• Apply only to pending action (C.C.P. 1466)
• Truth of facts, genuineness of documents, application of law to fact (C.C.P. 1466)
• Time frame same as for interrogatories
• Deemed admitted if not answered (C.C.P. 1467)
• Answer must deny or state specific reasons why party cannot truthfully admit or deny (C.C.P. 1467)
• Lack of info. not a reason to fudge – reasonable inquiry rule (C.C.P. 1467)
• Court may determine sufficiency of answer (C.C.P. 1467)
• Admissions are deemed conclusive proof (C.C.P. 1468)

(3) Production of Documents and Things ( La. C.C.P. articles 1461-1463)

• Writings,charts, photographs, and other data or documents for inspection or copying
• Tangible things for inspection, copying or testing
• Entry on property for testing or inspection

    
(4) Physical and Mental Examinations (La. C.C.P. art. 1464)

• Permits exams by physicians anytime mental or physical condition of a party is in controversy, known as “IMEs”
• May include exams by vocational rehab experts and clinical psychologists, if party has given notice of intent to use such an expert
• Court order needed unless person gives consent

Party entitled to a report

(5)  Depositions (La. C.C.P. articles 1429-1456)

Preparation for the deposition

Make arrangements informally
The room or place
The court reporter
Must be certified
No contractual relationship
Confirm with everyone involved

Send out any required notices and subpoenas

Prepare an outline of questioning

Do not write out every question
Remember what is more important than the question-the answer – so listen!

The deposition

1. Be friendly and courteous to everyone
2. Touch base with the court reporter
   
   • Order copies
   • Spelling list for technical terms
3. If you are first:
   
   • Take care of the stipulations
   • Remember the oath for the witness
   • Explain the procedure to the witness
   • What is it
   • Who the people in the room are
   • Answering aloud
   • Reading and signing
   • Be sure you understood the question
   • Production of any requested documents
   
   
4. Your Goal  - Clear questions and complete answers
   
   • Information reads differently than it sounds
   • Should you let a witness ramble?
   
   
5. Objections – When do you make them?

Videotaped depositions

These require more thought and planning than regular depositions

This will be the actual trial testimony – the jury will see it as it is.
Be aware of camera shots
Be aware of the setting, the lighting, the witness’ appearance
Consider providing props and visual aids

Confer with the videographer about the plan for shooting the deposition.

Medical or other expert depositions

Be conversational - not stiff
Remind the expert that the deposition is being taken for trial and that the jury will see it
Talk about why the expert will not be in court
Surgery
Appointments, etc.
Expense

Talk in a conversational manner about the expert’s qualifications
Go through the curriculum vitae, but don’t call it that
Mention that you reviewed it before the deposition
Ask about specific entries
Don’t let the expert blow his own horn
Use layman’s’ terms, or have the expert explain technical terms, i.e. board certified
Invite the other attorneys to ask questions about the expert’s qualifications.  Don’t call it “traversal” or “voir dire”

Ask leading questions.  Take the expert step by step through the deposition with leading questions.

Don’t allow the expert to take off on you with long readings or narratives

Make the expert explain precisely what was done in each step of testing, diagnosis, research, treatment, surgery, etc.

Make visual references for effect
Use visual aids whenever you can
Make it real – make the expert bring the jury there

Use hospital records, especially nurses’ notes.

Cross-Examination in deposition of experts

Goal is to minimize the impact of the expert’s testimony

Don’t try to “badmouth” or put down the expert’s opinion

Try to highlight the positives for your side, i.e. in a medical deposition, you would ask the doctor about successes in the treatment, etc.
Disagree in a professional manner
Make sure you know what you are talking about or you may be embarrassed

Discovery Motions

Motion to Set Sequence or Timing of Discovery - Art. 1427

Motion to Terminate or Limit Deposition - Art. 1444

Motion to Serve Additional Interrogatories - Art. 1457

Motion for Protective Orders – Art. 1426

Motions to Enforce Discovery

Motion for Order Compelling Discovery - Art. 1469 and Rule 10.1

Motion for Sanctions - Art.1420 and Rule 10.1 (B)

Rule 10.1 Discovery Motions    
    Before filing any discovery motion, the moving party must attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion must include a certificate stating:
(a) that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree; or
(b) that opposing counsel has refused to confer after reasonable notice.
If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.

VI.  PROCEDURE FOR OBTAINING TRIAL SETTINGS
Rule 9.14 Fixing for Trial or Hearing; Scheduling Orders; Contact with Jurors

(a) The date on which a motion to fix for trial on the merits may be made, and the method of setting a date for trial or hearing of a matter including deadlines for scheduling orders, pretrial briefs, contact with jurors, or any other matter, shall be determined by each district court as set forth in Appendix 8.

(b) Any party may request in writing, or the court on its own motion may order, a La. Code Civ. Proc. art. 1551 scheduling conference between counsel and the court to whom the case has been allotted. A party requesting such a conference must deliver the original and one copy of the request to the clerk of court. The clerk of court shall file the original in the suit record, stamp "filed" on the copy, and route the copy to the assigned judge. Within 30 days after receiving a request for a scheduling conference, the court shall schedule a conference for the purpose of addressing those matters set forth in La. Code Civ. Proc. art. 1551. The scheduling conference may be held by any appropriate means, including in person, by telephone, or teleconference.

Crichton Comment:  Rule 9.14 was patterned on the 1st Judicial District Court rule enacted by the Caddo judges in the 1990s, the purpose of which was to set a time period in which the trial judge had to schedule a conference for the purpose of setting a trial.  The objective was to provide a mechanism for litigants to obtain access to the courts.  In Caddo Parish, the lawyer should direct his/her request to Gailyn Dennis, 501 Texas Street, Suite 404, Shreveport, Louisiana 71101, phone number 429-7661.
Crichton and Edwards Comment:  This procedure varies depending on judicial district.  Be sure to see Appendices of the Louisiana Rules of Court.

VII.  PRETRIAL CONSIDERATIONS
CIVIL JURY TRIAL PREPARATION
Subpoena Witnesses – See Rule 9.15
Determine what stipulations, if any, can be reached
Prepare jury exhibit notebook
Obtain jury venire questionnaires [in Caddo, available Friday (before Monday trial)]
Prepare pre-trial order.  
Prepare requested jury instructions
Contact judge’s secretary to determine place on docket
Determine and contact witnesses who may be eligible to be “on call”
Prepare demonstrative evidence
In Caddo, make certain jury cash deposit paid to Clerk of Court 60 days in advance (it is now $3,200.00).  The jurisprudence is clear that if the cash deposit is not timely made, the trial judge has authority to convert the mode of trial from jury to bench.

Rule 9.15 Subpoenas

(a) A request for issuance of a subpoena must be issued and filed with the clerk of court at least 10 days before the desired appearance date, unless a different deadline is set by the court in the pre-trial or other order.

(b) In the case of a settlement, counsel on whose client’s behalf the witness has been asked to testify should make reasonable efforts to notify the witness.
Briefs and pretrial orders are usually required in bench trials and pretrial orders are required in jury trials setting forth the pertinent facts of the case, contentions of the parties, contested issues of fact or law, and all matters necessary to the orderly progress of the conference.
Crichton Comment:  It is requested that the attorney indicate the date of the bench or jury trial at the top of the brief or pretrial order.

Rule 9.16 Agreements and Stipulations
The court will recognize agreements and stipulations between counsel concerning the conduct, trial, or continuance of a suit only if they are:
(1) written and filed in the record; or
(2) made in open court and entered on the minutes.

Rule 9.17 Continuances
(a) The court may grant a continuance of a trial or hearing for good grounds. Among the factors the court will consider are the diligence and good faith of the moving party, the reasonableness of the grounds, fairness to both parties and other litigants before the court, and the need for the orderly and prompt administration of justice.

(b) The court will grant a continuance in any case where the law so requires.

(c) If the court grants a continuance, each party is responsible for contacting its own witnesses.

Rule 9.18 Oral Arguments
Oral argument is a privilege, not a right, and is within the court’s discretion.

VIII.  JURORS, COSTS, CHALLENGES, EXEMPTIONS
Chapter 12 addresses rules applicable to jury trials.

Rule 12.0 Deposit for Jury Costs (amended 11/3/08; effective 1/1/09)
In a civil case, the court shall fix an amount to cover the costs related to the jury, clerk of court, and sheriff. The court may not require that the bond be filed or the costs paid more than 180 days before trial. The failure to pay these costs timely will constitute a waiver of trial by jury.
Crichton Comment:  The standard scheduling orders for jury cases require cash deposit, now $3,200.00, sixty days prior to the trial.  Again, in the event the costs are not paid, the case is converted to a bench trial.

(a) La. Code Civ. Proc. art. 1734 provides that the jury bond must be filed no later than 60 days before trial. Rule 12.0 provides further guidance by stating that the bond need not be filed or the costs need not be paid more than 180 days before trial. Of course, the jury bond may be filed at the time of filing, at the discretion of counsel.

(b) La. C.C.P. art. 1734.1 provides for the cash deposit “no later than 30 days prior to trial”.  Note that the Caddo order is that the cash deposit be filed 60 days prior to trial.

(b) La. R.S. 13:3105 sets the compensation to jurors in civil cases. See also R.S. 13:3049.  

(c) See La. Code Civ. Proc. art. 1761, et seq. regarding the procedure for calling and examining jurors.

Rule 12.1 Central Jury Pool

12.1 There may be a central jury pool for civil cases. The central jury pool shall be administered by the Clerk of Court or the judicial administrator, if any has been appointed by the court, under the direct supervision of the court, in accordance with the following:

(a) Authorized personnel shall assemble the members of the general venire, present the orientation, call roll, and account for those members present and absent.

(b) The judges shall notify the Clerk of Court and the Clerk of Court shall notify the jury commission at least 90 days before the designated jury terms, which sections of the court will participate in each term. The jury commission shall select a general venire in a number directed by the judges. Authorized personnel shall randomly select from the general venire those persons who will comprise the central jury pool and shall determine the number of persons selected to compose the central jury pool based upon the number of civil jury trials remaining on the dockets.

(c) Authorized personnel shall select the required number of panels from the central jury pool. The panels shall be selected at random and indiscriminately from the central jury pool members then available. In civil cases, the number of jurors shall be determined by the judge presiding over the trial for which the panel is selected. If the need arises, the assigned judge may request additional persons from the central jury pool, who shall be selected at random.

(d) Persons selected to serve on the central jury pool panel and not selected to serve on a jury shall be returned to the central jury pool.

(e) The chief judge, or his or her designee, shall qualify the members of the central jury pool.

(f) Any person requesting to be excused from jury service shall present the reasons in writing to the court, the Clerk of Court, or to the judicial administrator when one has been appointed, who shall then communicate that request and the necessary information to the court, which shall determine whether to grant the request.
Crichton Comment:  The First Judicial District Court utilizes the central jury pool concept.  The panels are randomly selected, before a court reporter and a First Judicial District Court deputy judicial administrator.  The panels typically include 30 to 35 citizens.  Copies of juror questionnaires are usually available in the judge’s office on the Friday afternoon preceding the Monday jury selection.
Comment
See Supreme Court Rule XXV, Section 2, regarding Jury Service.

Appendix 3

Rules 3.2 and 9.3

Duty Judges; Allotments; Signing of Pleadings in Allotted and Non-Allotted Cases

First Judicial District Court
    
There are no civil or family law duty judges. All pleadings, orders or judgments are signed by the judge to whom the case is assigned, except that in that judge's absence each judge shall make arrangements for another to sign his orders. The assigned judge is
to be notified immediately of any civil orders of an emergency nature. If the assigned judge is unavailable, such orders shall be taken to an available Civil Division Judge.

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