Defense counsel has made a motion to preclude evidence of the Defendant’s DWI conviction because it is a misdemeanor. We need to
submit a brief to the court in opposition to the Defendant’s motion.
In our brief we need to argue why the Defendant’s DWI conviction
is relevant and admissible. With all of the other trial preparation to be done, the Managing Partner has assigned you this task.
Prepare a trial brief to the court in which you make our case for
admission of the Defendant’s DWI conviction regarding the accident that has given rise to this litigation.
Your memo must have a cover page with the appropriate case caption and title “Trial Brief in Opposition to Defendant’s Motion to Preclude.” You also must have the case caption on the first page of the brief, itself. The brief must be at least 500 words in length and must contain references to at least two (2) primary sources of law from New York state and/or the Federal Rules of Evidence properly cited pursuant to The Bluebook.
Your memo
must be divided into the following four sections:
1.Introduction
2.Statement of Facts
3.Argument
4.Conclusion
You are working as a paralegal at the law firm of Reynolds & Starr, P.C. in your home state. The Managing Partner of the Firm (James Reynolds) has asked for your assistance on a new personal injury/wrongful death case that the Firm is considering taking on to represent the plaintiff.
These are the known facts of the case that the Managing Partner has
communicated to you: On September 18 of last year, Samantha Crow, a 42-year-old wife and mother of three, was killed as she was running southbound on New Town Road in your home state. The accident happened at 8:34pm as Samantha was running towards her home; she was training for a marathon to be held in October. Samantha had started her run at 5pm and anticipated being home by 7pm. Apparently she ran much longer. At the time of the accident Samantha was wearing a black sweatshirt and dark grey sweatpants. She wore no reflective clothing that night because, as she had told her husband, she anticipated being home before sunset.
Samantha was struck by the BMW being driven by Dr. Richard Sayer, a well-known and respected cardiologist in the community.
At the time of the accident, Dr. Sayer was on his way home from a fundraising golf outing held at the Small Valley Country Club, where he is a member. Dr. Sayer and Samantha both were heading in the same direction when Dr. Sayer struck Samantha with his car. Thinking he had hit a deer, Dr. Sayer did not stop, he drove straight home.
The speed limit on New Town Road is 35 miles per hour.
Dr. Sayer was traveling 50 miles per hour at the moment that he
struck Samantha. As a result of the impact, Samantha’s body flew 167
feet. Her neck broke and she was killed instantly.
There is no evidence that Samantha was alive and/or conscious for any period of time after the accident. She never saw the car coming.
Quick investigation led the police to Dr. Sayer’s home where his BMW was found parked in the garage, beneath a tarp. There was significant damage to the front bumper, including blood stains and pieces of hair.
Dr. Sayer submitted to a breathalyzer administered by the police.
Even though the breathalyzer was administered nearly five hours after the accident took place, Dr. Sayer’s blood alcohol content was more than twice the legal limit. Dr. Sayer was arrested immediately. Sayer ultimately was charged and tried for second-degree manslaughter (a felony), second- degree vehicular manslaughter (a felony), leaving the scene of an accident (a felony) and driving while intoxicated (a misdemeanor). During the trial, Dr. Sayer admitted to ordering several rum and Diet Pepsi cocktails, Benedictine and brandy and a white crème de menthe at the golf outing that evening.
Records subpoenaed from the country club for the criminal trial also showed that Dr. Sayer paid for a $100 bottle of Silver Oak Cabernet Sauvignon. The criminal trial lasted for ten days. After five hours of deliberation the jury acquitted Dr. Sayer of all felony charges. He was convicted of misdemeanor driving while intoxicated, fined $1,000 and given a one-year jail sentence. The family of Samantha Crow has come to our firm because they wish to sue Dr. Sayer, and any other parties who may bear responsibility for the happening of the accident, for Samantha’s death.
At the time of her untimely and tragic death, Samantha was 42 years old. She and her husband, Gregory, had been married for thirteen years and had three children together: Jessica (eight years old), Bradley (five years old) and Cooper (three years old).
At the time of her death, Samantha was an equity partner at a local law firm, West & Crow, LLC. She was a well-known trial attorney and earned $225,000 per year in her position. All of the family’s Health insurance benefits were provided through Samantha’s firm. At the time of her death, Samantha had a $1 million life insurance policy in place, all proceeds to be payable directly to her husband. As well, Samantha had $2.5 million saved in her 401k individual retirement account. Her husband Gregory is named as the sole beneficiary of that account. Had she lived, it is estimated that Samantha would have worked until she was 65 years old. Gregory is a stay at home dad. He is unemployed outside the home.
Scenario: The meeting with the client went very well and t
he Firm has been retained to represent the Estate of Samantha Crow, Gregory Crow as Executor, in a lawsuit against Dr. Sayer and the Small Valley Country Club.
You have been assigned the task of preparing:
(1) Summons and Complaint;
(2) Discovery Demands against each named Defendant; (3) Deposition Notices to take
the testimony of Dr. Sayer and a representative of Small Valley Country Club; and (4) a Judicial Subpoena Duces Tecum to obtain the entire investigation file from the Small Valley Police Department.
All documents, with the exception of the subpoena, must be
prepared for signature by the Managing Partner. For purposes of preparing the Judicial Subpoena Duces Tecum, you will need to know that this case has been assigned to the Honorable William Michalek.
With regard to the Summons and Complaint, the Managing Partner wants you to include the following:
1. Jurisdictional allegations.
2. Factual allegations (all factual allegations that support the causes of
action).
3. Negligence/wrongful death cause of action (against Dr. Sayer).
4. Negligence/wrongful death cause of action (against Small Valley Country Club).
5.Wherefore clause.
Each item listed below must be prepared and submitted as a separate
Word document.
1.Your Summons and Complaint must contain the proper caption and
identification of the parties, and must be drafted in accordance with the instructions you have been given by the Managing Partner. This section must be at least five pages in length.
2. Your Discovery Demands must be drafted and submitted as two separate documents (one directed to each defendant), must contain the proper caption and identification of the parties, and must contain at least five separate demands directed towards
each defendant. Each set of discovery demands must be at least one
page in length.
3.Your Deposition Notices must be drafted and submitted as two separate documents. Must contain the proper caption and identification of the parties. Must use proper citations pursuant to
The Bluebook for the appropriate provision from the State of New York Rules of Civil Procedure that permits one party in a civil
lawsuit to demand the deposition of another party in a civil lawsuit.
Each deposition notice must be at least one page in length.
4.Your Judicial Subpoena Duces Tecum must be drafted and submitted as a separate document. Must contain the proper caption and identification of the parties. Must use proper
citations pursuant to The Bluebook for the appropriate
provision of your home state’s Rules of Civil Procedure that permits
a party in a civil lawsuit to serve a subpoena, and must contain an appropriate demand to obtain the items as outlined in the directions from the non-party identified in the directions.
Your subpoena must be at least one page in length. Prepare each pleading and discovery demand as specified in the directions
and deliverables description. It is permissible for you to utilize forms in preparation of these pleadings and discovery demands.
However, you must provide the citation(s) pursuant to The Bluebook for the source of your forms.
Scenario: The Managing Partner has received the Answer served on behalf of Dr. Sayer and has asked you to analyze the potential merit of the defenses raised and prepare an intra-office memorandum to him in which you identify, explain and analyze the merits of each defense. In doing so, you must explain what facts the Defendant must prove in order to be successful on each defense (what are the elements of each defense) and assess the merit of each defense raised. In assessing the merit of each
defense raised, you should consider whether the defense has any strengths or weaknesses based upon the law of New York State and the facts as you know them. Dr. Sayer has raised each of the following defenses in his Answer:
1.Statute of Limitations – Defendant claims that this lawsuit is barred by the statute of limitations.
2. Contributory Negligence of the Plaintiff Defendant claims that the lawsuit is barred by the contributory negligence of the decedent, Samantha Crow, for running in the dark, on a busy road and neglecting to wear any reflective clothing.
3. Comparative Negligence of the Plaintiff – Defendant claims that decedent’s own negligence contributed to the accident and her death
and that any award to Plaintiff be reduced by an amount equal to the percentage of the decedent’s own negligence.
4. Assumption of Risk – Defendant claims that Plaintiff knew it was dangerous to run on New Town Road after sunset and without wearing any reflective clothing and voluntarily assumed the risks associated with that action. Defendant claims that as a result, the lawsuit is barred.
Conduct the necessary legal research of the law in New York State with regard to each of the above defenses raised by the Defendant.
After conducting the necessary research, evaluate and analyze each defense and each of the issues that the Managing
Partner has asked you to consider with regard to each defense.
After you have applied the law regarding each researched defense to the known facts of the case, compose an intra-
office memorandum to the Managing Partner in which you address each item outlined above. The results communicated in your memo will help to determine what next steps are taken (i.e., whether a motion may be made to dismiss any or all of the defenses,
and/or if there is particular discovery that should be
requested relative to any of the defenses raised).
Your memo must be at least 500 words in length and must contain references to at least four (4) primary sources of law from your home state properly cited pursuant to The Bluebook.
