Reference no: EM133573775

Part 1.

Annette Friel is a plaintiff's personal injury attorney. On behalf of client Daniel Hathaway, she is defending against a summary judgment motion in state court in y case that turns on the definition of what constitutes a "defec- a products liability tive product designi" Annette's research showed that, while it is a close question, the law supports her client's position, and she has filed a strong brief. She feels that oral argument went very well, and that the judge is inclined to deny the defendant's motion. At the conclusion of the hearing, the judge stated that she would take the matter under submission and render a decision within one week. recent opinions The next day, Annette spends some time reviewing the stack which has been accumulating on her desk. She sees a case in these "advance sheets" which is directly against her client's position. Neither she nor opposing counsel had cited this case.

Questions

1. Does Annette have a duty to disclose the new case's holding to the judge before a decision is rendered? Would doing so cause her to violate any duty to her client?

2. Suppose that upon rereading the case carefully, Friel concludes that harmful language redefining the meaning of "design defect" is not absolutely necessary to the case's holding. May she now avoid raising the issue with the court because the bad language is merely dicta?

3. What if Annette learns of the new case only after the court clerk has posted a "tentative ruling" in her favor, which under the local court rules will become final unless her opposing counsel gives notice that he intends to argue the matter further the following day?

Part 2.

In another state court case, Annette represents Mary Cooper, who has been injured in a car accident. Mary claims that the defendant drove through a stop sign at a four-way stop, hitting her and causing her injury. There are no independent witnesses. Although the police were called, and their report tends to corroborate Mary, Annette knows that the report only represents one officer's opinion based largely on the client's statement. The week before trial, Annette sends her inves- tigator back to the scene to canvass the neighborhood for eyewitnesses one last time. To her surprise, the investigator turns up an eyewitness who had been out of the country for some months after the accident. Unfortunately, the witness, who appears entirely credible, clearly recalls that it was Mary, not the defendant, who ran the stop sign. Pogro

Questions

1. Assume that the discovery deadline has passed and (as is the law in many states) there is no order for the exchange of "ongoing discovery." Must Annette disclose this information to the court or opposing counsel? May she?

2. May she have Mary testify at trial? May she then argue that there is no evidence other than the driver's testimony to refute her client's story?

3. In closing argument, may Annette say the following: "Unfortunately, no one witnessed the accident except the parties, so we have to rely on Mary's recollection and the defendant's, and the statements of the police officer, to piece together what happened."