Class actions, closing argument and memos
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This document discusses class action lawsuits. It defines a class action as a lawsuit brought by a large group of people collectively, or a suit in which a class of defendants is being sued. It notes that class actions originated in the US and are governed by the Federal Rules of Civil Procedure. For a class action to be certified, the class must meet requirements such as commonality, adequacy, numerosity, and typicality. The document also outlines the procedures for filing and settling a class action and notes some of the advantages of the class action format.
Class actions, closing argument and memos
- 1. CLASS ACTIONS. Dra Adela Pérez del Viso Colegio de abogados de San Luis. 2012
- 2. CLASS ACTION. A CLASS SUIT or REPRESENTATIVE ACTION. IN WHICH A LARGE GROUP OF PEOPLE COLLECTIVELY BRING A CLAIM TO COURT OR IN WHICH A CLASS OF DEFENDANTS IS BEING SUED. THIS FORM: ORIGINATED IN THE U.S. THEY ARE GOVERNED BY: FEDERAL RULES of CIVIL PROCEDURE RULE.
- 3. May be brought in FEDERAL COURTS. (class of plaintiffs citizen of a State different from any defendant, or plaintiffs from a foreign state). FEDERAL COURT: if the case exceeds 5.000.000 dollars. SOME OTHER CASES: brought in STATE COURTS. Typically Federal C.:more favorable for defendants and State C.: more for plaintiffs.
- 4. CLASS ACTION FAIRNESS ACT of 2005: MORE THAN 5 MILLION: FEDERAL CASE. PROCEDURE: --FILE SUIT with one or several named plaintiffs on behalf of a proposed class. Typically: an action on the part of a business or a particular product defect or policy that applied to all proposed class members.
- 5. AFTER THE COMPLAINT IS FILED: the plaintiff must file a MOTION TO HAVE the CLASS CERTIFIED. Sometimes: Class certification may require “DISCOVERY” (sumaria informacion) to determine its size or if it meets the standards for class certification. DUE PROCESS: NOTICE describing the class action must be sent, published or broadcast to class members.
- 6. Private Notices: to class members: give the oppportunity to opt out of the class. (if individuals wish to proceed with their own litigation they are entitled to do so). If there is a SETTLEMENT PROPOSAL the Court will direct the class counsel to send a settlement notice to all the members of the certified class.
- 7. REQUIREMENTS for a class action: “CANT”: COMMONALITY: Must be one or more legal or factual claims common to the entire class. ADEQUACY: The representative parties must ADQUATELY PROTECT the interests of the Class. NUMEROSITY: The class, so large as to make individual suits impractical. TYPICALITY: claims or defenses must be typical of the plaintiffs or defendants.
- 8. ORIGIN: “group litigation” in England, XIII century. Then: JOSEPTH STORY and the case WEST V.RANDALL (1820) ADVANTAGES: --they aggregate a large number or individualized claims into 1 representational lawsuit. --small recoveries do not provide an incentive for any individual to bring a solo action prosecuting his or her rights.
- 9. HELPS CHANGING BEHAVIOUR of a class of which the defendant is a member. Ex: LANDEROS V FLOOR: encourage doctors to report child abuse. IN LIMITED FUND CASES: a class action ensures that all plaintiffs receive relief and that early –filing plaintiffs do not raid the fund of all its assets before others may be compensated.
- 10. FINALLY, A CLASS ACTION AVOIDS THE SITUATION WHERE DIFFERENT COURT RULINGS COULD CREATE “INCOMPATIBLE STANDARDS” of conduct for the defendant to follow.
- 12. CLOSING ARGUMENT. THE CLOSING ARGUMENT: Tells the Court: “THE COURT SHOULD CONSIDER” THE COURT MUST EVALUATE WHETHER A REASONABLY PRUDENT PERSON… THE COURT MUST DETERMINE THE CREDIBILITY OF WITNESSES..
- 13. CLOSING ARGUMENT. EXAMPLE OF PERSUASIVE TEXT. WE USE PERSUASIVE LANGUAGE in Court, or Negotiating a contract, or writing a memo proposing a course of action to a client, or in a discussion. KEY ELEMENTS: A) clear statements. B) Supported by evidences. C) REBUTTAL (argue against) OF OPPOSING STANDPOINTS OR ARGUMENTS.
- 14. CLOSING ARGUMENT: IN THE CLOSING ARGUMENT, KEY POINTS NEED TO BE STRESSED MORE. TWO WAYS TO EMPHASISE IDEAS: A) BEGINNING THE SENTENCE WITH A PHRASE THAT SIGNALS IMPORTANCE. (see also pg.69) B) STRESS INTONATION
- 15. CLOSING ARGUMENT: PRACTICE SAYING THE FOLLOWING SENTENCE STRESSING THE UNDERLINED WORD: We´re meeting the new client on MONDAY. We´re meeting the new CLIENT on Monday. We´re meeting the NEW client on Monday. We´re MEETING the new client on Monday.
- 16. MEMORANDUMS: Informative and “Giving Advice” memo. Memo: INFORMAL WAY OF COMMUNICATION. In Legal English: memorandums or memos: more formal. On page 70: An INFORMATIVE MEMO.
- 17. INFORMATIVE MEMO. A heading: DATE, To, FROM and Sj. The subject line: States the main idea of the memo in less than 10 words. The CONTEXT: Background info about the project (e.g.an event previously notified). MAIN MESSAGE: Certain points to organise, in descending order of importance. THE ACTION CLOSE: What to do next
- 18. MEMO GIVING ADVICE(pg 100) HEADING (From, to, Subj.line) SUBJECT: The main advice. E.G. “some suggested changes” CONTEXT: Begin the memo referring to your previous contact, and the reason for writing. MAIN MESSAGE: Points you want to make, as a list. ACTION CLOSE: An offer to provide further help