Read and Analyze Common Law CasesBill 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? WasSawyer 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 feder al 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 theincoming 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 as1codefendants. 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 failu re 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 theallegation of negligence and raised an affirmative defense ofcontributory 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 acci dent 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 eachother 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,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, requestsfor 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 ledall witnesses out of the courtroom with the judg e’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 thejury to disregard the girl’s answer and strike i t from the record. Gipson’sattorney then continued for several questions before announcingthat he had no further question to ask. The attorney for Sawyer’s estate then rose to impeach the girl through cross-examination. Tord’s attorney also conducted a brief cross-examination. There is no re-direct examination.Gipson’s attorney called several other witnesses who had seen the accident. Each witness was examined and cross-examined. Then the judgeannounced a recess for lunch. At 2:00 p.m. sharp, the court was again in session. Neff called his fifth witness, Dr. Jones. After several questions about the doctor’s medical training and experience, Nefffiled a motion that Dr. Jones be qualified as an expert witness and a judicial notice be taken. The judge granted the motion regardless of the objections by either defense counsel. Gipson’s attorney then told the doctor to offer an opinion as to the nature and extent of the injuries that Gipson had suffered from the accident. In order to show Gipson’s medical expenses, Neff also produced the original copies of all medical bills that Gipson had received, under the Best Evidence Rule. The judge ordered the bills be authorized and the clerk to mark the bills as plaintiff’s exhibit number one. After the defense coun sel had inspected the bills, Gipson’s attorney then moved the bills into evidence.After Gipson’s attorney finished his direct examination of hisfinal witness, Gipson himself, the attorney for Sawyer’s estate began cross-examining Gipson and ultimately invoked Dead Man’s Statute against Gipson. During the cross-examination conducted by Tord’s attorney, rules of privilege were invoked by Gipson. Gipson’s attorney then rested his case after all the defense counsels had completed their questions.In the f ollowing morning, the attorney for Sawyer’s estate told the judge that she had a preliminary matter to bring up before the jury was brought into the courtroom. She then proceeded on making a motionfor a direct verdict in favor of the estate. Tord’s attorn ey made a similar motion on behalf of his client. The judge made his decisionafter all the parties’ argument. As to the estate, the judge would neither grant nor deny the motion but would take it under advisement. Asto Tord, the motion was denied because Gipson had produced sufficient evidence to make out a prima facie case of negligence for trial.The jury was brought into the courtroom for the second day of the trial. The attorney for Sawyer’s estate began the trial with an opening statement to the jury. She then called her witnesses individually to conduct her direct examination. It took about half an hour for her to conduct her case. After a lunch recess, Tord’s attorney proceeded to present his case. He had rested his case by late afternoon. The judge dismissed the jury until the following morning. To prepare for jury charge, he also ordered the attorneys to submit any jury instructions that they would like to request and be prepared for closing arguments. Finally, the judge announced that he had dec ided to deny the estate’s earlier motion for a direct verdict. This denial is aninterlocutory court order that cannot be appealed.Closing argument began the following morning; thereafter, each attorney moved for a verdict in favor of his or her client. Then the judge began to charge the twelve jurors as to the law they were tofollow in finding the facts and in reaching a verdict. He explained the concept of burden of proof and illustrated which party has to carry the burden as to each of the elements of negligence. Each element should be proved by a preponderance of the evidence. This was the standard of proof for this sort of case. The jury was then led out of the courtroom to deliberate for a verdict.After about an hour and a half, the bailiff summoned everyone back into the courtroom. The jury came in next. At the request of the court clerk, the foreman rose to read the verdict. On Gipson’s originalcomplaint against Tord for negligence, the jury found for Gipson and against Tord, awarding Gipson $ 40,000.00 in damages. However, on Gipson’s complaint against Sawyer’s estate, the jury decided in favor of the estate, finding that Sawyer had not been negligent. The jury found for the estate on its cross-claim against Tord, the codefendant, awarding $ 80,000.00 damages to the estate. Finally, the jury found against Tord on his cross-claim against the estate, as well as on his counterclaim against Gipson. The judge entered a judgment against Tord in the amounts awarded by the jury. Tord’s attorney made a motion for judgment notwithstanding the verdict, which was denied by the judge immediately. Tord’s attorney then filed a motion for a new trial. When the judge denied his motion again, Tord moved for a reduction of the verdict on the ground that the amounts awarded were excessive. Afterthis last motion had been denied the attorney declared his intention to appeal. The judge granted a stay of the judgment, conditioned upon Tord’s filing a timely notice of appeal and posting the bond.Since Gipson had originally sued for $ 100, 00.00 and the damages awarded by the jury was only $ 40,000.00, Tord felt worried about whether Gipson would later sue him again for the rest the amount originally claimed. His attorney said that Gipson could not sue again on the same cause of action, because Gipson had received a judgment on the merits that would be res judicata. Subsequently, Tord’s attorney filed a notice of appeal with the United States Court of Appeals and posted bond the following week. As attorney for the appellant, he should make sure that the transcripts and copies of exhibits be dispatched to the Court of Appeals and the case docketed by the appellate clerk. Thereafter Tord’s attorney served his appellate brief on the appellees.In response, Gipson and Sawy er’s estate immediately filed their briefs on the issue on appeal.Twenty days passed before the attorneys received a notice that the appeal had been scheduled for an oral argument before the appellate court. Their arguments were heard a few weeks later, and the appropriate standard of review was followed. Six months after the oral argument, the parties received the court’s appellate disposition in the forum of a written opinion. The court affirmed the judgment against Tord, citingthat no reversible trial error was found. Subsequently, Tord petitioned for a rehearing by the court en banc. The petition was denied. Tord followed his attorney’s advice and attempted no further appeal.Nor did he pay the awarded damages immediately either. If Tord were to pursue his case further, he may either petition the U.S. Supreme Courtfor a Writ of Certiorari, or pursue equitable proceedings such as a motion to reopen with the trial court or a Writ of Mandamus with the U.S. Supreme Court. Several days later, Gipson and the estate requested that the clerk of the trial court issue a writ of execution to garnishagainst Tord’s employer for Tord’s wages.When the negligence suit was under day, Gipson had also been involved in a second dispute. Gipson was defending himself in a criminal prosecution for possessing narcotics with intent to distribute. After Gipson had recovered from his injury, two police officers appeared inthe hospital. They produced a warrant and informed Gipson that he was under arrest. Gipson was then taken to the police station after he had been read his rights.The following morning Gipson was taken before a judge for hisinitial appearance (arraignment). The judge told Gipson that he had been charged with a felony, the possession of narcotics with intent to distribute. Because Gipson was unemployed and without adequate funds to pay, a pro bono attorney was assigned to represent him.When the case was recalled in that same morning, the attorney filed a praecipe and formally entered his name as attorney of record for Gipson. The attorney proceeded to discuss the matter of bail. The prosecutor was then given an opportunity to speak. He suggested a high bond for the defendant, who was unemployed and had no close relative in this area. The judge nevertheless agreed to release Gipson on his personal recognizance and set a date for a preliminary hearing the following week. At the preliminary hearing, the only witness was the police officer who had been at the scene of the accident. The policeman said that when he helped pull Gipson out of the car, he found a small paper box sticking out from under the passenger’s side of the front seat. A glassine envelope containing a white powdery substance had spilled out of the box. The substance, about an ounce, was proved to be pure heroin. After Gipson’s attorney cross-examined the policeman briefly, the judge advised that there was probable cause to hold the defendant and ordered the case for grand jury action.After the preliminary hearing, Gipson’s attorney went t o the prosecutor in order to convince him to enter a nolle prosequi on the charge, explaining that Gipson had simply been offered a ride home and was not aware of the fact that the heroin was in the car. The prosecutor refused to drop the charge unconditionally. Instead, he was willing to drop the felony charge if Gipson would agree to plead guilty to lesseroffense of simple possession of drug, a misdemeanor. Then Gipson’s attorney told him about plea bargaining session and advised him to accept the prosec utor’s offer. After a long private discussion with his attorney, on matters such as possible felonyconviction and habeas corpus, Gipson said he was innocent and could not plead guilty, even to a misdemeanor. Three weeks went by before Gipson’s attorney was informed that the grand jury had returned an indictment against Gipson. The next proceeding would be the arraignment the following week. On the date of arraignment, Gipson was formally noticed of the indictment and the judge then set a date for trial.The day of trial arrived. Voir dire had been held before a jury was impaneled. The prosecutor and Gipson’s attorney presented their opening statements respectively and then introduced their witnesses. Gipson was the only witness for his attorney. Afterwards the prosecutor rose and advised the jury that Gipson had a previous conviction for shoplifting and received a sentence for two years in prison. Gipson’s attorney successfully objected that the conviction, which had happened eleven years before, should not used to impeach Gipson’s testimony. The prosecutor concluded his cross-examination after a few more questions. Following the lunch recess, both sides made their closing arguments. The judge then instructed the jury that the burden of proof in a criminal case is on the government (here, the prosecutor). He explained that the burden is to prove element of the offense beyond a reasonable doubt. It took the jury an hour to reach its verdict that Gipson be acquitted of the offense. A poll of the jury, which had been requested by the prosecutor, confirmed the result, and the judge told Gipson that he wasfree. However, this result did not render Gipson’s potential suit against his employer moot, and he was still trying to get his job back.。
