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2013년 4월 15일 월요일

The Anti-SLAPP Resource Center

The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights. These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."
If you believe that you have been SLAPPed, then you'll want to review FAP's guide for SLAPP victims below.
(The following guide is intended to be a quick reference and provide general information to journalists and citizens. It addresses some common access problems, but does not substitute for research or consultation with a lawyer on detailed questions.)
 
GUARDING AGAINST THE CHILL: A SURVIVAL GUIDE FOR SLAPP VICTIMS
TABLE OF CONTENTS
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where the both cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.
Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:
  • writing a letter to the editor
  • circulating petitions
  • calling a public official
  • reporting police misconduct
  • erecting a sign or displaying a banner on their property
  • complaining to school officials about teacher misconduct or unsafe conditions in the school
  • speaking at a public meeting
  • reporting unlawful activities
  • testifying before Congress or state legislatures
  • speaking as an officer of an active public interest group
  • filing a public interest lawsuit
In California, a new law to protect people from SLAPPs, Code of Civil Procedure section 425.16, took effect in 1993. The law allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.
The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes:
  • any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  • any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
  • any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
Other states have similar protections against SLAPPs. Washington and New York have "anti-SLAPP" statutes: Washington Revised Code sections 4.24.500 - 520; New York Civil Practice Law, Rule 3211(g) and Rule 3212(h), and New York Civil Rights Law sections 70-a and 76-a. The Colorado Supreme Court has ruled that citizens of that state are protected from SLAPPs. Protect Our Mountain Environment v. Superior Court, 677 P.2d 1361 (Colo. 1984).

SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following:
  • Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.
  • Invasion of Privacy. This legal theory refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.
  • Nuisance. This legal theory includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
  • Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process." 
  • Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act. 
  • Intentional Infliction of Emotional Distress. This legal theory is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another. 
  • Interference With Contract or Economic Advantage. This legal theory is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons.
This listing is not exhaustive. Neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.
It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties' subjective motives - bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits - are irrelevant. The only critical issue is whether protected expressive activity triggered the suit, and is therefore at risk.

How To Remain InvolvedDialogue and freedom of expression are at the core of our democratic form of government. One way to retain our rights to free speech and petition is to continue to use them.
A good way to remain involved is to know your legal rights. Become familiar with California's new "anti-SLAPP" statute, Code of Civil Procedure � 415.16. This statute does not guarantee that you will never be the target of a SLAPP. However, it presents a mechanism through which a judge can dismiss the suit against you at the very outset of the suit. If the judge rules that the suit must be dismissed, the SLAPP filer is required to pay the cost of your defense, including any attorneys' fees.

Check Insurance CoverageIf you are a homeowner and carry homeowner's insurance, check you policy for personal injury liability coverage. Many policies protect homeowners from personal injury lawsuits based on such things as defamation, nuisance, interference with contract, etc. If you can't tell whether your policy will protect you, consult your carrier. If your present policy does not cover you, ask about a rider which would extend coverage to such matters.

Speak the Truth
Whether you are writing your government representative or speaking on an issue of public importance, always make sure your statements are factually correct. If your letters, reports, pamphlets, or other written documents are accurate, there will be no factual disputes later on. You may want to keep copies of all background materials and note sources of facts and figures quoted so that you can show where you obtained the information.
Understand that there are differences between statements of fact and statements of opinion. You may be legitimately sued for false statements of fact, but not for statements of opinion. Be careful. You will not be protected for stating, "In my opinion, Senator Squelch is a liar and a thief," unless, of course, your statement is entirely true. If your words contain an assertion of fact that is capable of being proven true or false -- i.e., that Squelch is or is not a liar and a thief -- you can be sued if it is shown that your statement is false, even though you tried to qualify the statement as "opinion."

Seek Legal Advice
If you are planning to write to a government official or speak out on a public issue, and you are unsure if your statements could subject you to a lawsuit, contact a lawyer who can assist you. The Where To Find Help section of this handbook may help you in finding a knowledgeable attorney to consult.
If you find yourself the target of a SLAPP, don't panic! Many other people have been in your position, and there are individuals and organizations out there that can help you.
If you are the target of a SLAPP, you may receive a demand letter from the lawyer representing the SLAPP filer which lists a series of "options" you must meet to resolve the matter before a lawsuit is actually filed. Often, the letter will demand a sum of money, an apology (generally public), your agreement to refrain from speaking out or participating in the future, your agreement not to bring a lawsuit against the SLAPP filer, or a combination of these and other things.
The more likely scenario is that you will learn of the SLAPP when you are personally presented with a "Summons" and "Complaint" at home or work. The Complaint will list the specific "wrongs" you are alleged to have committed. Look for the legal jargon: words like "libel," "slander," "interference with contract," etc., which are briefly defined above.
The Summons is a notice, telling you that you have been sued; it will give a deadline (usually 30 days) within which you must file a formal response to the Complaint with the court.

Locate and Hire an AttorneyIt is always best to find an attorney to represent you.. Do not try to handle the case yourself! Being sued, especially with a SLAPP, is very serious business. An attorney may be able to effectively end the litigation at the very beginning of the lawsuit, minimizing the emotional and psychological stress that can result from being sued, and saving you tremendous amounts of time and money.
Act Early. Do not wait until just before the formal response to the Complaint is due to start looking for an attorney. Lawyers are busy, too, and need some time to assess your case. Waiting until the last minute to find a lawyer to help you will only add stress to an already stressful situation.
If you find yourself pressed for time, keep in mind that the attorney who files your formal response to the Complaint does not have to be the attorney who will eventually represent you in court. At the very least, find a lawyer who can help you draft and file a response to the Complaint on time. If you miss this deadline, the Court can enter judgment against you, without first considering all the arguments in your defense. If a judgment is entered against you, you may have to pay the SLAPP filer for any damages that are being claimed as a result of your activities! DEADLINES CONTAIN THE WORD "DEADL[Y]," AND SHOULD BE TREATED AS SUCH. THEY CANNOT BE MISSED.

But Lawyers Cost MoneyIt should come as no shock that most lawyers expect to get paid for their work. Yet, even without increasing fee rates demanded by attorneys, defending a case is extremely expensive. Costs associated with a typical case include court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees and other costs. You must consider how these costs will be paid.
The attorney you select should be in a good position to tell you how much he or she estimates defending you will cost. Lawyers are often flexible on how they expect to paid. Do not be afraid to discuss alternative payment terms with the lawyer and with an eye to your pocketbook. Some lawyers will agree to take your case on a contingency basis. This means that the lawyer will be paid only if you either win the case and the court rules that the SLAPP filer must pay your attorneys' fees or you successfully bring a lawsuit against the SLAPP filer for damages suffered by you as a result of being the target of a SLAPP (This is generally referred to as a "SLAPPback.")
If you are sued as a result of expressive activity undertaken on behalf of a group, check on whether the group has insurance which may cover you, maintains a legal defense fund, or is willing to help defray legal costs by doing fundraising on your behalf.
Some attorneys will agree to defend you on a pro bono (free) or low cost (reduced hourly attorney fee rate) basis. One way to find pro bono or low cost legal services is to check the Where To Find Help section of this handbook. Be forewarned, however, that the law requires that you remain responsible for paying all legal costs associated with the case, such as filing fees and court costs. This is true even if the attorney agrees to work for you for free.
Now the good news. Under the new California anti-SLAPP law, you will be entitled to recover legal fees, court costs, and other expenses if the judge rules that the SLAPP filer cannot show a probability of winning the suit. Thus, even if you can't afford to pay hourly attorney fee rates, an attorney will often be encouraged to defend you on a pro bono, contingency, or low cost basis if he or she understands that attorney fees will be paid by the SLAPP filer if you win.

Insurance: Defense vs. CoverageIn many cases, your homeowner's liability insurance policy will require the insurance carrier to defend you if you are sued. Consult your carrier and an outside attorney to see if you are covered. If so, the carrier will provide a lawyer to help you. This will mean you will not be required to pay legal fees for legal representation. Be aware, however, of two consequences of such an arrangement. First, the company attorney will be inclined to reflect the carrier's position, which may not always be in line with what you want. Second, there is a difference between the insurance company providing you with a defense and ultimately paying any judgment entered against you. The company may defend you, but reserve its rights not to pay the judgment if it later determines the judgment is not covered by your policy.

Factors Determining the Right Representation for YouFinding the right attorney will take a little bit of work and energy on your part. There are a number of factors to consider:
  • Sympathetic. It is helpful to find a lawyer who shares or understands your politics, or at least someone who will listen and understand why you said or did what you did. Conflicts over differing philosophies, gender bias, or political beliefs are not only time consuming, they may affect the kind of representation you will receive.
  • Experienced. Find someone who has experience defending SLAPP victims or who is familiar with the legal and factual issues of your case. This can be critical to your case both in terms of costs and time. Ask the lawyer if he or she has worked on these kinds of cases before, and what kind of experience that lawyer has generally. You may also ask if the lawyer would mind if you speak to other clients and/or SLAPP victims the attorney has represented in the past.
  • Willing to Share the Load. It is important to remain involved in the decision-making process throughout all the stages of the lawsuit. Do not be afraid to ask about the potential ramifications of all legal and strategic decisions before authorizing your attorney to take action on your behalf.
  • Media Savvy. It may also be helpful if the attorney is used to dealing with the press. Often these kinds of cases generate a lot of media interest. The right kind of media visibility will help your case. The wrong public image, however, could be devastating.
  • Compatible. Often, you must ultimately decide if you will be satisfied with the prospective attorney. It is very important that you be able to work with the attorney comfortably. You may well be spending more time with this person than you know.

The Mechanics of Finding a Good LawyerTake the time to gather all information you can and present it to prospective attorneys. Ideally, the attorney should have a complete a picture of the relevant facts of the case and any legal matters pertaining to the case that you may be aware of.
  • Case package. Create a neat package of information that you can present to potential attorneys; it may include:
  1. a brief cover letter which is respectful of the attorney's time, focuses on the key issues in your case, and states, specifically, what you would like the lawyer to do for you.
  2. a copy of the demand letter, Complaint or any other official document you received from the SLAPP filer or his or her lawyer.
  3. the names of any attorneys who may have advised or represented or advised you in this action, and how to contact them.
  4. the names of the attorney or attorneys representing the SLAPP filer, and how to contact them.
  5. the names of important witnesses, if any.
  6. key newspaper articles or other background information about your case and/or your opponents.
  • Attorney interview. Explain your story as succinctly as possible. You may even wish to practice before the first interview. Have you own list of questions ready. The list should include questions about the case, as well as questions about the lawyer's experience and interest in similar suits. Become familiar with California's anti-SLAPP statute and ask the attorney if it applies to your case. You may want to learn as much as you can about SLAPPs in general. Your local library is a good source for current literature on the topic. You can also learn more about SLAPPS by contacting one of the agencies listed in the "Where to Find Help" section of this page.
There are several stages to SLAPP litigation. The following is a list of the key events you can expect in defending a SLAPP.

Filing a ResponseYou have a very limited amount of time (typically, 30 days) to file and deliver "an initial responsive pleading." Often, your "first responsive pleading" will be the Answer to the Complaint. This is a formal document detailing your response to each of the allegations in the Complaint. Or, it may be a document which attacks the Complaint on legal or factual grounds, such as a Special Motion to Strike (described below). Remember that your initial response, whether an Answer, a Special Motion to Strike, or other document, must be filed with the Court and delivered to the other side within the deadline specified on the Summons.

Opposing a Temporary Restraining Order.A SLAPP filer can ask for a temporary restraining order ("TRO") when the Complaint is filed. A TRO is a court order that temporarily orders or prohibits a specific act or series of acts until the court rules on the matter. A TRO is of limited duration, usually lasting no more than 20 days. You may get very little notice (24 hours) that a TRO is being sought. As a TRO may impact your ability to speak out on an issue or remain active in important public affairs, it must be vigorously opposed.
he Complaint may seek declaratory relief, which means that the filer has asked the court to make a ruling on the respective rights and duties of the parties under the circumstances. The Complaint may also seek preliminary or permanent injunctive relief; like a TRO, a preliminary injunction is a temporary order which orders or prohibits a specific act or series of acts until trial. A permanent injunction orders or prohibits an act or acts indefinitely.
A motion for declaratory or a preliminary or permanent injunction requires that all interested parties be given notice of the motion (usually 15 days) and an opportunity to be heard. The crucial issues in a SLAPP are frequently decided on such motions. If the SLAPP filer is seeking such a motion, it must be vigorously opposed.

Bringing a Special Motion to Strike.California's new anti-SLAPP statute, Code of Civil Procedure � 425.16, gives victims an opportunity to have the court rule at the outset whether a SLAPP filer can show a probability of winning the suit. If the judge finds that the filer cannot prove that the case has a probability of winning, the court will "strike" the Complaint, and dismiss the suit. The court will also order the filer to pay to the SLAPP victim his or her attorneys' fees and costs.
This special motion generally must be brought 60 days from the date the Complaint is received, and is the best way to put an end to a SLAPP early in the proceedings. The special motion to strike can be brought later than 60 days after the Complaint is received, but only if a court, in its discretion, allows it to be filed at a later time.
Make sure that there is a good basis for bringing the special motion to strike. If the court finds that it is frivolous, or brought only for purposes of harassment or delay, the court will sanction you, and order you to pay the amount of attorneys' fees and costs incurred by the other side in opposing your motion.

Dealing with Discovery.Discovery is the term for the process in which parties to litigation gather information from each other. This is accomplished by depositions, in which individuals are orally questioned by lawyers, under oath, as if on the witness stand, or by interrogatories, which are written questions by one party to the other and which require a written answer, also under oath. Parties may also ask that any important documents be turned over; this is known as a request for production of documents. The process of discovery can take months to complete.
Under the special motion to strike procedure of Code of Civil Procedure � 425.16, described above, all discovery is suspended or stayed until a judge rules on the special motion to strike. This means that all discovery must be halted until the judge rules. This is important because even the process of having to answer discovery requests can impact one's willingness to oppose a project or speak out on public issues. However, if you believe the other side has information necessary to your defense, you will be unable to get it once the special motion to strike is filed. Carefully consider whether there is information you may need before filing the special motion to strike. Alternatively, the court, upon a formal request and for good cause shown, may order that a specified course of discovery be conducted.

Arbitration.In many counties, once discovery is over, cases are ordered to arbitration. Arbitration is a mini-trial or hearing in which the case is presented to a neutral party -- usually another attorney or a private or retired judge -- who makes a determination and an award. The arbitration ruling can be appealed by either party.

Filing a Motion for Summary JudgmentUpon completion of discovery and following arbitration (where the arbitration procedure is used), any party can bring a motion for summary judgment. This is used to inform the court whether there are any material issues of fact in dispute. If there are no factual issues in dispute, and only issues of law remain, the judge decides the case by interpreting the relevant law. If however, factual disputes remain to be decided -- for example, whether one party or the other is telling the truth -- the case must go to a jury, unless the parties agree that a judge may decide the issue.

Preparing for TrialIf the case cannot be resolved by any of the above procedures, it will be considered in a trial. A jury or judge will hear the evidence, which may include live testimony from each side, and present a final ruling or "judgment."

Judgment and AppealAfter trial, a judgment is entered according to the ruling of the jury or trial judge. If the judgment orders the payment of money from one party to another, there are various mechanisms to enforce the judgment to ensure that payments are made. A final judgment may be appealed to a higher court, by either party, but only upon a showing of some legal error. Generally, the filing of an appeal does not render the judgment automatically unenforceable. To pursue an appeal, the losing party must instead post a bond, often in an amount twice that of the judgment, to secure the judgment during the appeal process.

Pursuing SettlementAn agreement among the parties to resolve the case can be reached before the Complaint is filed, at any time during the litigation, or even after trial.

Mapping Out a General Strategy With Co-Defendants
It is very likely that you will not be the only person being sued by a SLAPP filer. A common strategy is for the filer to sue all vocal opposition. In addition, the SLAPP filer can sue numerous (anywhere between ten and several hundred) as yet unnamed "DOE" defendants. This means that the SLAPP filer can, at any time during the case, replace a "DOE" defendant with a named individual. As a result, others who are sympathetic to your position or cause may be fearful of helping you or continuing to speak out on the issue, because of a concern that at any time they, too, may be sued.
If you are one of a number of people being sued, consider a cooperative defense strategy. Cooperation with other defendants can have a number of benefits. Often, it helps to develop a good and successful defense. In addition, cooperation with others can reduce the stress and financial burden of defending a lawsuit by yourself.
The first step is to come to an agreement with co-defendants about what issues to focus on. Does the litigation seek to impede your work or that of your organization? How important are these goals to your work? Would you be willing to give up your work to settle the case? What if others have used alternative or unlawful means to pursue these common goals -- are you willing to stand with these persons, though you differ as to how specified goals should be accomplished? Consider the significance of the suit -- if the SLAPP filer is successful in silencing you and your friends, will others be silenced too?
Decide how litigation expenses and attorney fees are going to be paid and by whom. If money and resources must be raised, agree upon fundraising efforts, who is responsible for these efforts, and how money will be disbursed from such activities.
Decide at the outset who will be the spokesperson(s) for your case. Spokespeople should be selected with extreme care. Public perception is important in generating interest, support, money, and sympathy. You do not want to take the chance of alienating either the judge, who will be ruling on your case, or potential supporters of your work.
If problems or disagreements arise which cannot be resolved in discussion, it is probably a good idea to split from the group and obtain your own lawyer. There is little advantage to being united with others if your own case is going to suffer.

Dealing with the PressWhether or not your attorney is experienced in dealing with the press, become familiar with The Press Handbook. This handbook, available through the Media Alliance in San Francisco, California, will show you how to generate positive media coverage and support for your case.

What if You File a Lawsuit First?Often, civic minded citizens who file public interest lawsuits can be hit with a SLAPP "counter- claim." In such a circumstance, the SLAPP filer uses your lawsuit to sue you for claimed damages arising out of the circumstances which lead to you to file your public interest lawsuit.
Before you or your community group chooses to initiate a public interest lawsuit, make sure that you have a good case. Find out what all the possible ramifications are before filing suit. When preparing to initiate litigation, be sure to document everything of significance. Know your facts. You may wish to keep a litigation notebook to include the following:
  • important dates and deadlines
  • referrals and attorneys contacted
  • significant source materials
  • a listing of information you have with the words "confidential" and "attorney-client or attorney work-product privileged" written across each page
  • a confidential listing of key witnesses
  • notes of discussions with the opposite side of the case
The creation of such a notebook will not only help protect you in the event of a SLAPP, it will make you a better advocate in your own case.
Also, consider whether your case will be benefitted by having other groups or organizations join your lawsuit. Often, the mere existence of several groups opposing a single project or opponent can add a note of importance to your lawsuit. Joining with like-minded individuals and groups is also a good way to spread the cost of litigation. Similarly, if the opponent turns around and SLAPPs you and your co-plaintiffs, you will not be alone in defending the SLAPP.

SLAPPing BackIf you are successful in defending a SLAPP, and you can show that the SLAPP was brought for a purpose other than to resolve the issue by legal means -- e.g., the case was filed for the purposes of harassment, needlessly piling up defense costs, silencing opposition, etc. -- seek legal advise about SLAPPing back. A SLAPPback is a way to seek monetary damages, including pain and suffering, from the SLAPP filer on the theory that the original SLAPP constituted an abuse of the legal process.
In the past, juries in some SLAPPback suits have ordered SLAPP filers to pay large sums of monetary and punitive damages to the original SLAPP target. However, the decision to initiate SLAPPback litigation should not be entered into lightly. A SLAPPback, like the original lawsuit, can take years to reach a final resolution.
Moreover, a SLAPPback is itself likely to be subject to the special motion to strike procedure set forth in Code of Civil Procedure � 425.16. This does not mean that SLAPPbacks can never be won. It does mean that you should have enough evidence to prove a probability of winning the suit, before filing the SLAPPback.
  • First Amendment Project (FAP). 1736 Franklin Street, Ninth Floor, Oakland, California 94612 [510/208-7744]. FAP is a non-profit public interest law firm active in two main areas of First Amendment law: anti-SLAPP and open government. FAP provides legal representation to individuals and organizations to defend against SLAPPs. FAP also helps individuals, citizen groups, and the media gain access to government records and meetings through enforcement of local, state and federal public records, freedom of information, and open meeting laws.
  • California Anti-SLAPP Project (CASP)casp@casp.net. 2903 Sacramento Street, Berkeley, CA 94702 [510/486-9123]. CASP is a public interest organization wich provides legal representation to individuals and organizations to defend against SLAPPs. CASP led the successful campaigns to enact the anti-SLAPP law in 1992, and to amend it in 1997 and 1999. CASP also maintaints a resource and information center about SLAPPs on its website.
  • SLAPP Resource Center. University of Denver School of Law, 1900 Olive Street, Denver, Colorado 80220 [303/871-6266]. The SLAPP Resource Center is run by University of Denver Professors George Pring and Penelope Canan, the leading authorities on SLAPPs. These scholars first coined the term "SLAPP" and have studied these cases extensively. Write for a free informational packet on SLAPPs.
  • American Civil Liberties Union (ACLU). Northern California: 1663 Mission Street, Fourth Floor, San Francisco, California 94103; Southern California: 1616 Beverly Boulevard, Los Angeles, California 90026
  • California First Amendment Coalition (CFAC). 926 "J" Street, Sacramento, California 94244 [916/447-2322]. CFAC is an excellent resource for up-to-the-minute information on speech, petition, and open-government laws in California. CFAC also maintains a lawyer referral service.
  • National Lawyers Guild (NLG). Northern California: Bay Area Chapter of the NLG, 558 Capp Street, San Francisco, California 94110 [415/285-5067]; Southern California: NLG Los Angeles, 8124 W. Third Street, Suite 201, Los Angeles, California 90048 [209/441-8721].
  • Local Bar Associations. Local bar associations often have a lawyer referral service and may be able to tell you which firms handle pro bono and/or low cost legal services.
  • Friends and Family. Friends and family are always a good place to seek help. If you are in need legal help, don't be afraid to ask everyone you know for a lawyer referral to follow up on.

Using Special Demurrers to Successfully Dismiss Indictments

In Georgia, the special demurrer is an indispensable tool that criminal defense attorneys should utilize to dismiss an indictment when it fails to sufficiently particularize the date that an alleged crime was committed.
Due process requires that all indictments allege the specific date (or dates) of the alleged offense in order to provide the defendant with sufficient notice of the charges so that he or she can adequately prepare a defense.  Under Georgia law, this is also required by statute (O.C.G.A.  § 17-7-54).
This requirement presents challenges for prosecutors of alleged sex crimes when the accusers are children.  Children often have difficulty recalling dates or pinpointing specific time periods especially in the earlier stages of development.  A child may say that something happened “five years ago” or “when I was in 2nd grade.”  Other times, children simply say that they can’t remember at all when something may have occurred.
When the State can show that it is unable to allege a specific date on which the offense occurred, Georgia law allows for the indictment to allege that the crime occurred between two particular dates.  In these circumstances, however, the indictment must at least provide the most narrow date range possible.  If the evidence shows that the State could have provided a more narrow range of dates then the indictment can be dismissed with a successful special demurrer.
The special demurrer must be filed within 10 days of arraignment and allege that the indictment fails to sufficiently particularize the date(s) that the offense was committed.  The defendant will then be entitled to an evidentiary hearing requiring the State to prove that it cannot more specifically narrow the range of dates set out in the indictment.  If the State is unable to make this showing, the indictment may be dismissed (or “quashed”) by the trial court.
If an indictment is dismissed as a result of a special demurrer, the State does have the ability to re-indict the case.  Very often, however, the dismissal will give the defense another opportunity to convince the State of the weaknesses in its case in an effort to prevent a second indictment (clickhere for an example).  Thus, in some cases the successful demurrer can lead to the ultimate dismissal of the charges.
In the event that the case is indicted a second time, it is always possible that the subsequent indictment may be subject to a demurrer or other legal challenge.  Under Georgia law (O.C.G.A.  § 17-7-53.1), if two indictments are dismissed as a result of a demurrer, or any other legal motion, the State will then be barred from any further prosecution of the defendant.  So, if a defense attorney uses the special demurrer to quash the first indictment and then finds a defect in the second one, the defendant cannot ever be charged again.
Therefore, the use of the special demurrer is a critical part of the defense of any sex offense allegation involving a child.  For more information about how we utilize demurrers and other pretrial motions to successfully defend sex offense allegations, please click here.
    

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Answer to unverified complaint
Answer to verified complaint
Arbitration brief
Demurrer to answer
Demurrer to complaint
Demurrer to unlawful detainer (eviction) complaint
Heggstad petition
Marital settlement agreement
Motion for change of venue
Motion for judgment on the pleadings
Motion to enforce settlement agreement
Motion to quash service
Motion to strike
Motion to strike unlawful detainer (eviction) complaint
Motion to vacate default judgment
Opposition to demurrer
Opposition to motion for judgment on the pleadings
Opposition to motion for summary judgment
Opposition to motion to strike
Request for production of documents for civil cases and divorce cases
Requests for admission for civil cases
Special interrogatories for civil cases
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Motion for Judgment on the Pleadings Law & Legal Definition

Motion for judgment on the pleadings is a party’s request to the court to rule in his/her favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court's interpretation of the law.
A function of a motion for judgment on the pleadings is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings is the proper procedure when all of the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all factual issues, judgment on the pleadings is generally inappropriate. [Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974)]
The following is an example of a state statute (North Carolina) on motion for judgment on the pleadings:
In North Carolina Rule 12 (c) of the Rules of Civil Procedure deals with motion for judgment on pleadings. Rule 12(c) of the Rules of Civil Procedure reads as follows:
"Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."





Erie Doctrine and Choice of Law – History of the Erie Doctrine
Terms:
Common law: 
Common law is law that is the result of judicial decisions rather than statutes or laws enacted by a legislature.
Erie Doctrine: 
The Erie doctrine is based on a U.S. Supreme Court case, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). The doctrine states that the federal courts, when confronted with the issue of whether to apply federal or state law in a lawsuit, must apply state law on issues of substantive law. When the legal question is based on a procedural issue, the federal courts should apply federal law.
Choice of law: 
"Choice of law" is a set of rules to used select which jurisdiction’s laws to apply in a lawsuit. Choice of law questions most frequently arise in lawsuits in the federal courts that are based on diversity jurisdiction, where the plaintiff and defendant are from different states. In these lawsuits, the courts are often confronted with the question of which jurisdiction’s laws should apply. The choice of law rules establish a method by which the courts can select the appropriate law.
Conflict of laws: 
Sometimes used interchangeably with “choice of law”, a conflict of laws arises when a lawsuit introduces conflicting laws of two or more jurisdictions.
Procedural law: 
Procedural laws are laws that establish the steps and procedures that lawyers and courts must follow during a lawsuit. These laws establish the deadlines that legal papers must be filed with the court, the types of documents required during litigation, the manner in which they are introduced to the parties and the court, and method of obtaining documents and evidence prior to trial. Examples of procedural laws are those found in the Federal Rules of Civil Procedure.
Rules of Decision Act (RDA):
The "RDA" is a law created by Congress in 1789 that states that, in the absence of a federal law, Constitutional provision, or treaty, the courts should apply state law where it applies. It is one of the foundations of the Erie doctrine.
Substantive law: 
Substantive laws are laws that create and regulate the rights and duties of people and entities. Examples of substantive laws are the federal Clean Water Act and the Civil Rights Act of 1963.
The Erie doctrine is a topic that every first-year law student must experience and grapple with. While the nuances of the rule make it one of the most confusing topics studied in Civil Procedure, its basic principles are relatively straightforward. Along with the choice of law rules in the next subchapter, the Erie doctrine is based on the interaction of differing sets of laws. Before launching into the essence of the Erie doctrine, it is important to understand the background behind the development of the doctrine.
As we have discussed previously, there are two co-existing levels of government: the federal and state governments. Federal laws apply to all states, while state laws apply within each individual state’s geographical borders and its residents.
When a lawsuit is based on a question of federal law, the federal courts implement the applicable federal laws. The situation becomes more complicated when the court's jurisdiction over the lawsuit is based on the diversity of citizenship of the parties engaged in the controversy. As you may recall from an earlier chapter, diversity of citizenship is based on the plaintiff and defendant residing in two different states, with the amount of the legal dispute (also known as the “amount in controversy”) exceeding $75,000. The plaintiff is then permitted to bring the lawsuit in federal court, which has proper jurisdiction over both the parties and the legal claim. In such scenarios, the plaintiff’s claim is often based on issues of state law. As a recap of diversity jurisdiction, look at the following example.
Joe, a resident of New York, is hunting for wild turkeys near the state line bordering Massachusetts. David, a Massachusetts resident, is enjoying the sunny fall afternoon on a leisurely hike. Joe takes aim at what he believes to be a turkey moving in some dense brush and shoots. However, instead of Joe shooting a turkey, Joe shoots David, who is admiring a rare flower blooming at the edge of the very same brush, but who is standing in Massachusetts territory. David is struck by the bullet in the leg causing permanent injury and forcing him to take a desk job at the local metal working plant. David sues Joe in federal court in Massachusetts for $100,000 in personal injury damages and loss of future wages. New York has laws that provide for the type of monetary relief that David seeks in his lawsuit, but there are also federal laws that would govern the same action.
In the above example, David has satisfied the requirements of diversity jurisdiction to bring his lawsuit in federal court. However, one major issue is raised by the lawsuit being brought in federal court: which personal injury law should be applied by the federal court in making its ruling on the controversy? David would argue that federal law should apply since he was the victim and was physically in Massachusetts when the bullet struck him, thus making it unreasonable to apply New York law. Joe, on the other hand, may want New York law to apply since he is a New York resident and was in New York when the accident occurred. The New York law may, for example, provide more protection for Joe by limiting the amount of the monetary damages recoverable by David than federal law. In addition, a third option for the court would be to apply Massachusetts state law. Therefore, the federal court is confronted with the quandary of selecting the appropriate law in reaching resolution of the controversy.
This legal question can be resolved by the application of the Erie doctrine. The Erie doctrine assists the federal courts and attorneys in assessing the appropriate law that should be applied in diversity jurisdiction situations. Before launching into an analysis of the Erie doctrine, it is helpful to explore the legal history leading up to the inception of the doctrine.
The Rules of Decision Act (RDA) is a federal statute created by Congress in 1789. The statute was Congress’ recognition of the conflicts that could arise between federal and state law. It states “The laws of the [ ] states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United states, in cases where they apply.” 28 U.S.C. § 1652. In other words, the statute requires that the federal courts are required to apply state law in all cases except where there is an applicable federal law, Constitutional provision or treaty that speaks to the same issue. For example:
1) Danny, a resident of Louisiana, owns a farm that raises fish on the Gulf Coast. Petroleum, Inc., an oil refinery based in Houston, Texas, operates a facility 50 miles from Danny’s farm. On September 1, 2003, Petroleum, Inc., experienced a power failure, which caused 100 gallons of crude oil to leak from its refinery and pollute the waters of Danny’s farm, killing his stock of fish worth over $1 million. Danny files suit in federal court (under the principal of diversity jurisdiction) in Louisiana for failing to comply with federal pollution control laws that limit the discharge of petroleum to one barrel per year per entity in the Gulf and imposes strict liability for failure to comply with that limit. Louisiana statutory law, however, dictates that a refinery is not responsible for accidental discharge of petroleum in the absence of negligence. This is a classic case where, under the RDA, the federal law would apply. While a state law exists on the subject, there is a federal law that applies to the issue directly at the center of controversy: the limitations of petroleum pollution in the Gulf. Therefore, the federal court would implement the federal law in its ruling and Danny would prevail in the case.
2) Assume the same facts as above, except that there is no federal statute that governs the circumstances of this case. However, the state statute (limiting the liability for oil spills to negligence cases) does exist on point. Nevertheless, the federal court realizes that, although there is no federal statute on point, federal cases (i.e., federal common law) from around the country have uniformly held that any discharge of petroleum that kills fish will lead to strict liability on the part of the spiller. The court thus questions whether to apply the Louisiana statute or the federal common law. Here, the RDA steps in and dictates that the state law must apply because the state law exists on point and there is no federal statute that contradicts it.
The controversy over the RDA that led to Erie was what happens when there is no federal OR state statutory law on point. In such a case, should the court apply federal common law or should the court apply state common law (since there is no statutory law) to determine the outcome of this case? For example:
Same facts as above (Danny v. Petroleum, Inc.), except that neither Louisiana nor the federal statutes have passed any legislation regarding the key question in the case. The federal court realizes that, although there is no federal statute on point, federal cases (i.e., federal common law) from around the country have uniformly held that any discharge of petroleum that kills fish will lead to strict liability on the part of the spiller. However, Louisiana courts have generally refused to recognize strict liability in such cases. Should the court apply Louisiana common law or federal common law?
To answer this question, the U.S. Supreme Court ruled that, in the absence of state statutory law, a federal court may apply federal common law in resolving a legal controversy based on diversity jurisdiction even though there was state common law that spoke on the issue. See Swift v. Tyson, 41 U.S. 1 (1842). The Supreme Court’s interpretation of the RDA held that the federal court had discretion in determining whether to apply federal or state law in a diversity jurisdiction context.
The Swift decision was changed by the Supreme Court ruling in the case of Erie Railroad v. Tompkins, 304 U.S 64 (1938), which spawned the Erie doctrine. The Erie case was based on a set of facts similar to the example below:
Samantha, a resident of Colorado, was at a railroad crossing in Denver, Colorado. Cross Country Railroad (CCRR), a railroad company incorporated under Wyoming state law with its principal place of business in Jackson Hole, Wyoming, operated the railroad crossing. Unbeknownst to Samantha, CCRR had recently repaired the railroad crossing, but had failed to cover up a ditch. Samantha tripped into the ditch and severely injured herself. Samantha sues CCRR in federal court in Denver, Colorado, to recover damages for her personal injuries under Colorado law. There is a federal common law applying to personal injuries that involve railroad crossings. Which law should the federal court apply, federal law or Colorado common law?
Under the Swift decision, the federal court would have applied the federal common law to the case. However, in the Erie decision, the Court held that the state substantive law should apply, even if that substantive law is in the form of common law, and not statutory law. Therefore, the federal court would apply the Colorado common law to Samantha’s lawsuit in the example above.
The U.S. Supreme Court in Erie took their ruling a step further. The court held that it would make a distinction between substantive and procedural laws, treating them differently. The Court held that federal courts should apply state law to substantive law issues, such as personal injury, employment discrimination, and workers compensation. These laws create the rights and duties of people and entities. The court distinguished substantive law issues from procedural law issues, such as the time deadlines for filing a complaint and the procedures for filing a motion. The courts should still apply federal law when procedural laws were in question. In the earlier example involving Samantha and CCRR, consider the following:
Same facts as above. Samantha sustained her injury on April 1, 2003. She filed her complaint to start the lawsuit in federal court on June 2, 2003. CCRR answered Samantha’s complaint on August 15, 2003. In addition to the state and federal laws regarding Samantha’s personal injury claims, Colorado law requires that a defendant must file its answer within 90 days of the filing of the complaint. Federal law requires that a defendant must file its answer within 30 days of the filing of the complaint. Which law should the federal court apply?
As established in Erie, the federal court should apply the federal law. Since CCRR filed its complaint after the 30-day deadline, the answer was filed too late. Note that if the Colorado law had applied, CCRR’s answer would have been within the time permitted in the statute.
[Note, however, that if there is substantive federal law on a subject, that must be applied over state law, because the Supremacy Clause of the Constitution (United States Constitution: Article VI) dictates that federal statutory law must triumph over state law.]
In situations where there is a conflict of laws, such as where the laws of two or more states may apply to a case in federal court, the federal court must apply the laws of the state in which the federal court is situated. For example,
Carl, a resident of Oklahoma, is injured while working on an oilrig outside of Venezuela owned by OilCo, Carl’s employer. Carl sues in federal court in Oklahoma for monetary damages related to the injury. Oklahoma law would hold an employer liable for injuries, while Venezuelan law would prevent an injured employee from recovering any money damages. Which law should the court apply?
The court in the above example should apply the law of Oklahoma, which is the law of the state in which the federal court resides. There is a direct conflict between the relief provided by Oklahoma law (which would allow Carl to recover for his injuries) and the Venezuelan law (which would prevent Carl from any recovery). See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941). This issue is also discussed in greater depth in the next subchapter on choice of law. Similarly, a federal court must follow the law of the state in which the court is situated when allocating the burden of proof in a lawsuit. The burden of proof is burden the law applies to a party in a controversy to prove the elements of a lawsuit. A plaintiff, for example, has the burden of proving the elements of a personal injury case, including the fact that the defendant was the direct cause of the accident and the injuries sustained were a result of the defendant’s actions.
As we will see in the next subchapter, the selection of the proper law also extends to lawsuits where a court must decide between the laws of different states. This can mean the dismissal of a case or the limitation on the type of relief that can be recovered by a plaintiff.
It is important to emphasize that the Erie doctrine only applies to cases brought in federal court where there is an issue whether to apply federal or state law. For lawsuits that are brought in state court but involve a choice between two different states’ laws, it is important to apply the choice of law rules discussed in the next subchapter.

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