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The Legal Journey of Bill Gipson Bill Gipson is a bus driver for the Swank Transport Company. A number of years ago, when Gipson was walking to a restaurant from work, Michael Sawyer, an old intimate friend of his, stopped and offered him a ride. They had not seen each other for several years since Sawyer had moved to another state. They carried on a warmly talk as Sawyer drove. Suddenly a car ran through a red light and struck Sawyer’s car, whose driver is William Tord, a resident of an adjacent state. All the three individuals are badly injured and were taken to hospital. Miserably Sawyer died from injuries received in the crash a week later. Several days after the accident, Gispson’s boss, David Swank telephoned him. During their conversation, Swank said that he had learned that the police had found about an ounce of heroin under the front seat of Sawyer’s car and were 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 arise out of this situation: 1. A 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. I. Liability for the Accident Gipson underwent substantial injury as a result of the crash. He could ask damages from the person who was liable for the accident. Was Sawyer at fault? Tord? Was each of them jointly and severally liable? Gipson hired Adrian Neff to represent him. Once Gipson signed the retainer, Naff could later enter an appearance and then become the attorney of record. The attorney then clearly explained that some factors should be considered before deciding on the forum. Gipson might be able to bring the suit in several places: (a) in a state trial court where Gipson lives, (b) in a state trial court where Tord lives, (c) in a state trial court where Sawyer’s estate is located, (d) in the federal trial court sitting in Gipson’s state, (e) in the federal trial court sitting in Tord’s state, or (f) in the federal trial court sitting in the state where Sawyer’s estate is located. The reason Gipson could sue in a federal court was the existence of diversity of citizenship. Naff suggested Gipson to sue in federal court. The suit would be brought in the U.S. District Court sitting in Gipson’s own state since this would be most convenient venue for Gipson. Having decided on a court, Neff was prepared for the suit subsequently: he drafted a complaint, the first pleading of the case, naming Gipson as the plaintiff and stating a cause of action in tort for negligence against Tord and Sawyer’s estate as codefendant. In the complaint, Neff summarized the facts that he felt established a cause of action for negligence. Some of the allegations were based upon personal knowledge of Gipson, while others were based upon information and belief. The ad damnum clause of the complaint demanded $100,000 in damages. Then he attached a written demand for jury trial to the complaint and filed both documents with the court. The next proceeding is service of process. It was achieved when a copy of the complaint and the summons was served on both Tord and on the legal representative of Sawyer’s estate. Neff need not serve these parties himself. He asked a process server who then filed an affidavit of service with the court indicating the circumstances under which 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. Tord filed a motion to dismiss for Gipson’s failure to state a cause of action. The court denied the motion. Because the suit had been brought in a federal court, the procedural law governing the case would be found in the Federal Rules of Civil Procedure. Tord and Sawyer’s estate were each ordered to 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. For the purpose of avoiding a default judgment against the estate, the attorney filed a motion asking for an extension of thirty days. The motion was granted by the court. The answer filed on behalf of Sawyer’s estate denied the allegation of negligence and raised an affirmative defense of contributory negligence against Gipson. It 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 the codefendant Tord, alleging that the accident had been cause solely by Tod’s negligence. Tod’s answer also raised the defense of contributory negligence against Gipson and a cross-claim against Sawyer’s estate, alleging that the accident had been cause solely by the negligence of Sawyer or Sawyer and Gipson together. On this same theory, Tord’s answer also raised a counterclaim against Gipson. The three parties were ready to seek discovery. Once the pleadings were filed, each attorney first served written interrogatories on the opposing parties, which were followed by depositions and requests for admissions. Tord rejected to answer some questions during his deposition. As a result, Gipson’s attorney had to file discovery motion, asking for an order from the court compelling Tord to answer. A hearing was then held on Gipson’s motion. After listening to the parties’ argument, the judge granted the motion and ordered Tord to answer the remaining questions. Each party then filed a motion for summary judgment. The judge denied the motions and the case was ready for trial. As the trial date approached, 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 for the trial judge on the case 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 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. Gipson’s attorney rose and asked the judge that he wished to invoke the rule on witness after the jury had been seated. The bailiff led all of the witnesses out of the courtroom with the judge’s instruction. Gipson’s attorney then began the trial with his opening statement to the jury. Subsequently, Gipson’s attorney began to call his witness because 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. On the conference, he declared that he objected to the witness on the basis of competency. The judge then excused the jury while he conducted an examination of the girl. As a result, the judge overruled the objection upon being satisfied that the witness was old enough to understand the obligation to tell the truth she knew. The jury then was summoned again into the courtroom, and Gipson’s attorney i mmediately began his direct examination. After several questions, Tord’s attorney again objected on the theory that the child’s answer had been hearsay. 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 attorney then continued his examination of the witness for several questions before announcing that he had no further questions to ask. The attorney for Sawyer’s estate then rose to conduct her cross-examination of the girl. T ord’s attorney also conducted a brief examination. There was 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 judge announced a recess for lunch and ordered everyone to be back by 2:00 p.m. After the lunch recess, Neff called his fifth witness, Dr. Jones to begin his direct examination with a number of questions about the medical knowledge and experience. He then filed with a motion that Dr. Jones be recognized as an expert witness. The judge granted the motion regardless of the objections by either defense counsel. Gipson’s attorney then told the doctor to identify as to the nature and extent of the injuries that Gipson had suffered from the accident. The doctor asserted that Gipson had suffered a broken knee, which had been permanently injured in addition to multiple cuts and bruises. In order to show the expense these injuries had cost Gipson, the attorney also produced the original copies of the bills that the doctor had sent to Gipson. The judge ordered the clerk to mark the bills as plaintiff’s exhibit number one. After the bills had been inspected by the defense counsel, Gipson’s attorney then moved the bills into evidence. After Gipson’s at torney finished his direct examination with the final witness, Gipson himself, the attorneys for the defendants began to cross-examine Gipson. Gipson’s attorney rested his case after all the defense counsel had completed their questions. Then the judge adjourned the trial in the late afternoon. On the following 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 motion for a direct verdict in favor of the estate. Tord’s attorney made a similar motion on behalf of his client. The judge made his decision after all the parties’ argument. As to the estate, the judge would neither grant nor deny the motion but would take it under advisement. As to Tord, the motion was denied because Gipson had produced sufficient evidence to make out a prima facie case of negligence which should go to the jury. 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 conclude her case. After a lunch recess, Tord’s attorney proceeded to present his case in the afternoon. He had rested his case by late afternoon. The judge dismissed the jury until the following morning. 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 decided to deny the estate’s earlier motion for a direct verdict. Closing argument began the following morning. Each attorney asked for a verdict in favor of his or her client. Then the judge began to instruct the twelve jurors as to the law they were to follow in finding the facts and in reaching a verdict. He explained the concept of burden of proof and illustrated which party has to carry this burden of proof as to each of the assorted 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 on the verdict. After about an hour and a half, the bailiff summoned everyone back to the courtroom. The jury came next. At the request of the clerk, the foreman rose to read the verdict. On Gipson’s original complaint against Tord for negligence, the jury found for Gipson and against Tord, awarding Gipson $40,000 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, its codefendant, awarding $800,000 damages to the estate. Finally, the jury found against Tord on his own 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 a judgment notwithstanding the verdict, which was denied by the judge immediately. Tord’s attorney then immediately filed a motion for a new trial. When this motion was denied again by the judge, he moved for a reduction of the verdict on the grounds that the amounts awarded were excessive. After the 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 $100,000 and the amount awarded by the verdict was $40,000, Tord felt worried whether Gipson later sued him again for the rest of the amount he claimed. His attorney said that Gipson could not sue Tord again on the same cause of action, because Gipson had received a judgment on the merits that would be res judicata and would prevent any later suit on the same negligence of cause of action. Subsequently, Tord’s attorney filed his notice of appeal with the United States Court of Appeals and posted the bond the following week. Being the attorney of the appellant, he should make sure that the transcripts and copies of exhibits, were dispatched to the Court of Appeals and the case was docketed by the clerk. Then Tord’s attorney served his brief on the appellees, Gipson and Sawyer’s estate, who immediately filed their briefs concerning on the issues on appeal. Twenty days passed before the attorneys received a notice that the appeal had been scheduled for oral argument of the court. The arguments were heard a few weeks later. Six months after oral argument, the parties received the court’s decision in its written opinion. The court affirmed the judgments against Tord. Subsequently, Tord petitioned for a rehearing by the court en banc. The petition was denied. Tord followed his attorney’s advice and no further appeal was attempted. II. The Criminal Charges As the negligence suit was under way, Gipson had been involved in a second dispute. Gipson was defending himself in a criminal prosecution for possession of narcotics with intent to distribute. After Gipson having recovered from his injury, two police officers appeared in the hospital. They produced a warrant and informed Gipson that he was under arrest. Gipson was taken to the police station after he had read his rights. The following morning Gipson was taken before a judge for his initial appearance. The judge told Gipson that he had been charged with a felony, possession of narcotics with intent to distribute. Since Gipson was unemployed and without adequate funds to pay, an attorney was assigned to represent Gipson. When the case was recalled, the attorney filed a praecipe and formally entering his name as attorney of record of 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 was unemployed and had no close relatives in the 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 sticki ng out from under the passenger’s side of the front seat. There was a glassine envelope containing a white powdery substance in 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 to 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 was not content to drop the charge. However, he was willing to drop the felony charge if Gipson would agree to plead guilty to the lesser offense of simple possession of drug, a misdemeanor. When Gipson’s attorney told him about the plea bargaining session, and advised him to accept the prosecutor’s offer, Gipson said he was innocent and was not intent to 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 on the following week. On that date, Gipson was formally notified of the indictment. The judge then set a date for trial. The day for the trial arrived. Voir dire had been held before a jury was impaneled. The prosecutor and the attorney presented their opening statements and presented their witnesses individually. Gipson was the only witness of his attorney. Then the prosecutor rose and advised the jury that Gipson had a previous conviction for shoplifting. Gipson’s attorney successfully objected that the conviction, which had happened eleven years ago, should not be us ed to impeach Gipson’s testimony. The prosecutor concluded his cross-examination after a few 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 show each element of the offense beyond a reasonable doubt. It took the jury an hour to reach its verdict that Gipson was 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 was free.