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 CONTENTS vii

Internet and Technology Exerc ises 116 Probative Value 147

Chapter Opening Scenario Case Study 11 7 Judicial Notice 147
Comprehensive Case Study 11 7 Inadmissible Evidence 147
Building Your Professional Portfolio and Reference Types of Tangible Evidence 148
Manual 117 Tangible Evidence 149
Virtual Law Office Experience 118 Docitmentary Evidence 149
Demonstrative Evidence 150
CHAPTERS Physical Evidence 150
Causes of Actions and Testimony of Witnesses 151
Giving Testimony 151
Litigation Strategies 121
Form of Questions 15 2
Learning Objectives 120
Lay Witnesses 152
Introduction to Causes of Actions and Litigation
Expert Witnesses 153
Strategies 122
Prerecorded Testimony 154
Litigation Strategy and Options 122
Challenging the Credibility of Witnesses 154
Torts 125
The Hearsay Rule 156
Defens es to Tort Actions 12 7
Statements That Are Not Hearsay 156
Products Liability and Strict Liability 128
Exceptions to the Hearsay Rule 157
Contracts 12 9
Residual Exception 160
Elements of Common Law Contracts 129
Raising Objections 160
Defense to Contracts 130
Key Terms 161
The Uniform Commercial Code 131
Chapter Summary 161
Damages 134
Review Questions and Exercises 1 63
Monetary Damages 134
Internet and Technology Exercises 163
Equitable Remedies 134
Civi I Litigation Video Case Studies 1 64
Calculating Damages 135
Chapter Opening Scenario Case Study 164
Key Terms 137
Comprehensive Case Study 1 64
Chapter Summary 138
Building Your Professional Portfolio 164
Review Questions and Exercises 140
Virtual Law Office Experience 165
Internet and Technology Exercises 140
Chapter Opening Scenario Case Study 141
Building Your Professional Portfolio and Reference CHAPTER 7
Manual 141 Interviews and Investigation
Virtual Law Office Experience 141 in Civil Litigation 167
Learning Objectives 166
CHAPTER 6 Introduction to Interviews and Investigations 168
Evidence 143 Initial Contacts 168
Learning Objectives 142 The Screening Interview 168
Introduction to Evidence 144 Letters of Engagement and Termination of
Engagement 169
Evidence 144
Preparing for the Interview 172
Fact 144
Investigation Checklists 172
Introduction to the Rules of Evidence 145
Physical Surroundings 175
Admissibility of Evidence Relevant, Reliable, and
Real 145 Dress and Appearance 176
Relevant Evidence 145 Communication Skills in a Multicultural
Society 176
Reliable Evidence 146
Gender Differences 177
Real Evidence 146
viii CONTENTS

Conducting the Interview 1 79 Deadlines and Time Constraints 229

Listening Skills 180 Calctllating Deadlines 229
Leading Q uestions 181 Amendment or Supplement to the Complaint 230
Open~En.ded Qilestions 181 Key Terms 230
Privileged Conimunication 182 Ch apter Summary 230
Moral versus Ethical Obligations 182 Review Questions and Exerci ses 232
Expert Witnesses 1 83 Internet and Technology Exerc ises 232
Investi gating Cl aims 184 Civil Liti gation Video Case Studies 233
A Defense Perspective 186 Chapter Opening Scenario Case Study 233
O btaining Official Reports 186 Comprehen sive Case Study 233
Fact Analysis 186 Building Your Professional Portfo lio and Reference
Locations 188 M anual 23 4
T angible Evidence 189 Virtual Law Office Experience 2 34
T imelines 189
Freedom of Information Act
Locating Witnesses 192
190
• CHAPTER 9
Motions Practice 237
Directories 193
Learning O bjectives 236
Common Sense Analysis 194
Introduction to Motions 238
Key Terms 196
Form of Motions 2 38
Ch apter Summary 196
Motions in the Pleading Ph ase 2 38
Review Question s and Exerc ises 197
Motion to Enlarge T ime to Respon.d 239
Internet and Technology Exerc ises 197
Motion for Default ]tldgment 241
Civil Litigation Video Case Studies 198
Entry of Default on the Docket 242
Chapter Opening Scenari o Case Study 198
Entry of Defattlt ]u.dgment 242
Comprehensive Case Study 198
Setting Aside Default 245
Building Yo ur Professional Portfolio and Reference
Rule 12(b) Motions 246
Manual 199
Motion for ]itdgment on the Pleadings 248
Virtual Law Offi ce Experience 199
Discovery Motions 250
Motion to Compel 250
UNIT THREE Motion for Sanctions 250
DOCUMENTS IN CIVIL LITIGATION Motion for Protective O rder 252
Pretrial Motions 252
Motion for Summary Judgment 253
CHAPTERS Motion in Liniine or Pretrial Motion 255
Pleadings: Comp laint, Posttrial Motio ns 2 56
Su mmons, and Service 203 Motion for ]ildgment as a Matter of Laq,v 256
Learning Objectives 202 Motion to Mold the Verdict 257
Introduction to Pleadings 204 Motion for a New Trial 259
Rules of Court 204 Key Terms 259
Statute of Limitations 205 Ch apter Summary 2 59
Pleadings 207 Review Questions and Exerci ses 261
Preparing the Summons 210 Internet and Tec hnology Exercises 261
Civil Cover Sheet 212 Civil Liti gation Video Case Studies 261
Drafting the Complaint 213 Ch apter Opening Scenario Case Study 262
Filing and Serving the Complaint 223 Comprehensive Case Study 262
Filing Fees 223 Building Your Professi onal Portfolio and Reference
Electronic Filing 224 M anual 262
Service of Process 224 Virtual Law Office Experience 262
 CONTENTS ix

Rules of Court and Rules of Evidence 283

CHAPTER 10
Scope of Discovery 284
Pleadings: Responses to Privilege 284
Complaint 265 Claim of Privilege 285
Learning Objectives 264 Exceptions and Limitations to the Work Product
Introduction to Respon ses to Complaint 266 Doctrine 287
Responsive Pleadings 266 Exception to the Third;Party Document
Pleadings Allowed by Federal Rules of Civil Exception 287
Procedure 266 Internal Investigations and Evidentiary
Time Deadlines and Entry into Tickler System 267 Privileges 288
Responses to the Complaint 267 Forms of Discovery 288
Answer to the Complaint 269 Depositions 288
Caption 269 Interrogatories 288
Numbered Paragraphs 269 Production of Documents or Things 291
Prayer for Relief 270 Physical and Mental Examinations 291
Affirmative Defenses 270 Requests for Admission 291
Causes of Action 271 Sequence of Discovery 292
Prayer for Relief 272 Discovery Timing 292
Third-Party Practice 275 Rule 26(a) Disclosure Requirements 293
Third;Party Complaint 275 Information Subject to Mandatory Disclosure 293
Third;Party Answer 276 Experts and Witnesses 294
Failure to Respond to Complaint 276 Compliance and Court Intervention 294
Key Terms 276 Seeking Compliance as the Issuer of Discovery
Requests 294
Chapter Summary 277
Seeking Compliance as the Recipient of Discovery
Review Questions and Exercises 2 78
Requests 2 95
Internet and Technology Exercises 278
Key Terms 296
Civi I Litigation Video Case Studies 2 78
Chapter Summary 296
Chapter Opening Scenario Case Study 278
Review Questions and Exercises 297
Comprehensive Case Study 2 79
Internet and Technology Exercises 297
Building Your Professional Portfolio and Reference
Civi I Litigation Video Case Studies 2 97
Manual 279
Chapter Opening Scenario Case Study 298
V irtual Law Office Experience 2 79
Comprehensive Case Study 298
Bui lding Your Professional Portfolio and Reference
UNIT FOUR Manual 298
FORMAL DISCOVERY METHODS Virtual Law Office Experience 298

CHAPTER 12
CHAPTER 11
Issues in Electronic
Introduction to
Discovery 301
Discovery 281
Learning Objectives 300
Learning Objectives 280
Introduction to Electronic
Introduction to Discovery 282 Discovery 302
Purposes of Discovery 282 Discovery in the Technological Age 302
Evaluating Your Client's Case 282 E;Discovery under the Federal Rules of Civil
Evaluating Your Opponent's Case 282 Procedure 303
Preparing for Trial 282 Clianges in Traditional Discovery 304
Preserving Oral Testimony 282 Ethical Issues in Document Delivery 305
Impeaching Witness Testimony 283 Preserving Electronic Materials 305
Facilitating Settlement 283
x CONTENTS

Docwru.•1us in Litigation 305 Timeframe for Discovery 341

Producirt,l? Electronic Materittls 308 lnirial Di.scov<."'l'y Requests 341
Cose of Producillg Elocrrouic .Mawrials 308 Exrension of Time for Respond in,~ 341
Desrrucri<m of Electruoic Re-cords J 11 Drafting Questions and Answers to
Gene,-a( Ptodsions 312 Interrogatories 343
lofO'l'macio1l Technologiscs as Members of dte Legal Initial Disclosures 344
Team 313 Drafting Que.uions 344
Electronic Document Formats-Comparison of PDF Serving fott.'ftogawties 345
and TIFF 313 Prepc1ring Rtsp<,11ses 345
Adobe Acrobat 314 Re,.'iew for ObjecriotLS ro Qucsrions 347
PDF Conwrcer 315 tvlmion for Protective Order 347
Examining a PDF for Hidden Comer11 315 Nleerin.g with rhe Clie1u co Aoswer
Scanning 315 lntertogarnries 348
Scannins:i: Sofi.u•are 315 Ret.Jieu•irtg Ansu,,ers w Inrerrogarories 350
Optical Characrer Rt_>cOgnirion 316 Drafting Requests for Production of Documents and
Electronic Discovery in Litigation 316 Preparing Responses 350
Reviewing Electtonic Docwnenu 317 Prc{XJ.ring a Re,Jmm f()'( Docwnenrs 350
Obcai1ling Docume,us t iitJ Paper Discovery J J7 Responding r<> Requesrs fM Production 35 J
Corurerring Dot·umc..>tiU 318 Reviewirtg Re~-ponses LO Requesu for
Emerging Case Law and Court Rules 318 Ptoductiou 352
S{>Olia,ion of Eddence 318 Electronic Discovery- The Process 352
Predictive Coding/Technology-Assisted Review 322 1'1eer and Discuss 353
Protecting Confidential or Privileged Materials 323 K1tow Yout C(ienr 353
Inadvertent Disclosure of Confidential Screening Clients' Documents 354
lniormation 324 Privileged Maceriah 355
Suuc Cc>urrs 325 Producing Elecrrcmic Documents 355
Fetlt."t'af Courts 325 H0tv ro A,.hiise Cliems 355
Key Terms 327 Ke)' Terms 356
Chapter Summary 32 7 Chapter Summary 356
Review Questions and Exercises 330 Review Questjons and Exercises 357
Internet and Technology Exercises 331 Internet and Technology Exercises 358
Civil Litigation Video Case Studies 331 Civil Litigation Video Case Studies 358
Chapter Opening Scenario Case Study 33 1 Chapter Opening Scenario Case Study 359
Comprehensive Case Stud)' 3 32 Comprehensive Case Study 359
Building Your Proiessiona l Portfolio and Reference Building Your Professional Portfolio and Reference
Manual 332 Manual 359
Virtual Law Office Experience 332 Virtual Law Office Experience 359

CHAPTER 13 CHAPTER 14
Interrogato ries and Requests Deposi tions 361
fo r ProducJion 335 Learning Objectives 360
Let1n1ing Objec-,it:es 334 Introduction to Depositions 362
Introduction to Interrogatories and Requests for Types of Depositions 362
Production 336 Deposition before Fili11g a ComJ>lai,u 362
Interrogatories and Requests for Production of Deposilioo Otl \Vriue.n QJ.1estion.t 363
Documents and Things 336 Oral Deposition 363
VideocaJ,eJ Deposicions 365
 CONTENTS xi

U ses of Depositions 365 UNIT FIVE

Witnesses' Versions of the Events 365
TRIAL OF THE CASE
Preserving T estimony 366
Impeachment 366
Scheduling Depositions 366 CHAPTER 16
Notice of D eposition 367 Trial Preparation-
Subpoena 367
Postdiscovery to
Service 367
Pretrial 3 95
Notifying C ourt ReporterNideographer 367
Learning O bjectives 394
Preparing for Deposition 3 70
Introduction to Trial Preparation 396
Special Instructions for Clients and Witnesses 370
ldentify i ng Issues for Trial 3 96
Preparation to D epose the O pposing Party or
Witness 372 Legal Issues 3 96
Paralegal Functions at D eposition 372 Facts 397
Reviewing Transcripts and Preparing Digests 372 Psychological Advantages of Stipulations 398
Witness' Right to Review and Sign 374 Pretrial Memorandum 399
Key Terms 374 Trial Brief 406
Chapter Summary 3 74 Cost-Benefit Analysis of a Lawsuit 407
Review Questions and Exercises 376 Client and Witness Preparation 408
Internet and Technology Exercises 376 Placing Witnesses on Call 409
Civi I Liti gation Video Case Studies 376 Preparation of Exhibits 412
Comprehensive Case Study 3 77 D ocuments and T hings 4 12
Building Your Professional Portfolio and Reference Electronic Presentations 4 12
Manual 377 Jury Investigation 412
Virtual Law Office Experience 3 78 M ock Jury Trial 41 3
Trial Notebook 413
Continuances 413
CHAPTER 15
Key Terms 414
Other Forms of
Chapter Summary 415
Discovery 381
Review Questions and Exercises 41 6
Learning O bjectives 380 Internet and Technology Exercises 416
Introduction to Other Forms of Discovery 382 Chapter Opening Scenario Case Study 417
Request for Physical or Mental Examination 382 Comprehensive Case Study 417
Preparing for and Attending a Defense Medical Building Your Professional Portfolio and Reference
Eva Iuation 3 85 Manual 417
Requests for Admi ssions 387 Virtual Law Office Experience 418
Key Terms 3 90
Chapter Summary 390 ... CHAPTER 17
Review Question s and Exercises 390
Internet and Technology Exercises 391
Trial 421
Chapter Opening Scenario Case Study 391 Learning O bjectives 420
Comprehensive Case Study 391 Introduction to Trial
Building Your Professional Portfolio 392 Proceedings 422
Virtual Law Office Experience 392 Phases of Civil Trial s 422
Earl y Trial Proceedings 422
Final Pretrial Conference with Judge 422
Jury Selection 423
Jury C harge 427
O pening Statements 427
xii CONTENTS

Presentation of Evidence 428 Comprehensive Case Study 458

Plaintiffs Case-in-Chief 428 Building Your Professiona l Portfolio and litigation
Defeudaoc 's Case~i11·Cl1ief 430 Reference Manual 458
Reb111!al 431 Virtual l aw Office Experience 458
Sur Reb11tral 43 I
Sidebar.-. (rnd Coofete.nces with the )ru.tge 43 J UNIT SIX
How the ParaleJ,?al Cail Aisist in the Pre~entation of
Evidence 431 POSTTRIAL ISSUES
Conclusion of Trial 432
Closing Arg1une1ll~ 433
GfAPTIR 19
)uty foscn,ctious 433
Posttrial Procedures 461
Jury Delilx'farions 434
Jury Verdict 434 Leantirtg Objecrit·es 460
Posurial Mo1ions 434 Introduction to Posttrial
Emry of )udgmem 434 Procedures 462
Entering Judgment 462
Key Terms 435
Errors Made at Trial 464
Chapter Summary 436
Evidenlillry Rulinis 464
Review Questions and Exercises 437
lnsrtuc1ions ro 1he Jury 465
Internet and Technology Exercises 438
Verdict Unsupportell by tile Etiidencc 465
Chapter Opening Scenario Case Study 438
Harmless Error 467
Comprehensive Case Study 438
Motions Seeking Relief from the Trial Court 467
Building Your Professiona l Portfolio and Reference
Manual 439 Motion for JudgmL.. lt as a Mmwr of Law 467
Virtual law Office Experience 439 Motion for a New Trial 467
Motion to Mold the Verdict 468
local Rules 469
CHAPTER 18 Appeal to an Appellate Court 469
The Electron ic Courtroom and Final Judgment 470
Trial Presentation 443 Interlocutory Appeals 470
Let1n1ing Objeciit:es 442 Procedure for Filing an Appeal with the U.S. Court of
Introduction to the Electronic Courthouse 444 Appeals 470
The Electronic Courtroom 444 Notice of Appeal 471
Working w ith Courthouse Technology Staff 446 Record on Ap/>eal 471
Clearing rlu! Right ro Bring in the Equipnu..,,t Trial T ranscript 475
Beforehand 446 Scheduling Or<ler 475
\Vhm Hap/>etLt \Vhen the ligha Qo O,u 448 Brie{, 475
Using Technology to Present the Case 448 Oral Argument 4-77
Presentation and Trial Graphics 448 Ruling:, of the Apf,ellaie Court 477
Electronic Graphics Creation 448 Appeal to the Highest A(>J,cllaie Court 478
Smm1.Draw 451 Key Terms 4 79
Electronic Trial Presentation Programs 451 Chapter Summary 479
Limiuuions oo Presenu.uion Gra/JJ\ics 451 Review Questions and Exercises 481
Electtonic Equipmeut in the Cour!r<>mtt 453 Internet and Technology Exercises 481
Key Terms 455 Chapter Opening Scenario Case Study 482
Chapter Summary 455 Comprehensive Case Study 482
Review Questions and Exercises 456 Building Your Professiona l Portfolio and Reference
Internet and Technology Exercises 457 Manual 482
Civil Litigation Video Case Studies 457 Virtual law Office Experience 482
Chapter Opening Scenario Case Study 457
 •••
CONTENTS XIII

CHAPTER20 APPENDIX 1
Enforcement of Chapter Opening Case Study 502
Judgments 485
Learning Objectives 484 APPENDIX 2
Introduction to Enforcement of Judgments 486
Comprehensive Case Study: School Bus-Truck
Terminology and Timing in Judgment
Accident Case Study 504
Collection 486
Collection of Judgment Process 486
N on,Adversarial Collection Efforts 487 APPENDIX 3
A dversarial Proceedings 487 Supplemental Case Studies 507
U niform Enforcement of Foreign Judgments A ct 488
The ]udgment,Proof Debtor 492 GLOSSARY 525
Statutory Limitations on Collection Efforts 493 CASE INDEX 542
Fair Debt Collection Practices A ct 493 SUBJECT INDEX 543
Bankruptcy 493
Satisfaction 495
Key Terms 497
Chapter Summary 497
Review Questions and Exercises 498
Internet and Technology Exercises 499
Chapter Opening Scenario Case Study 499
Building Your Professional Portfolio and Reference
Manual 499
Virtual Law Office Experience 500
 THOMAS F. GOLDMAN, JD, is an experienced trial attorney who has
represented nationally known insurance companies and corporations. He
developed the Advanced Litigation Support and Technology Certificate
Program at Thomas Edison State College, where he was a member of the
Paralegal Studies Program Advisory Board and a mentor. He is Professor
Emeritus at Bucks County Com111unity College, where he was a professor of
Law and Management, Director of the Center for Legal Studies, and Director
of the ABA;approved Paralegal Studies Program.
Professor Goldman is an author of textbooks in paralegal studies and
technology, including The Paralegal Professional, in its fifth edition; Litigation
Practice: E;Discovery and Technology; Accounting and Taxation for Paralegals;
Technology in the Law O ffice, in its fourth edition; AbacusLaw: A Hands;On
Tutorial and Guide; and SmartDraiv: A Hands;On Tutorial and Guide. In addi;
tion, he is the executive producer of the Paralegal Professional video series,
in which he occasionally appears.
An accounting and economics graduate of Boston University and of Temple
University School of Law, Professor Goldman has an active international law,
technology law, and litigation practice. He has worked extensively with para;
legals and has received the Boss of the Year award of the Legal Support Staff
Guild. He was elected the Legal Secretaries Association Boss of the Year for his
contribution to cooperative education by encouraging the use of paralegals and
legal assistants in law offices. He also received the Bucks County Community
College Alumni Association Professional Achievement Award.
He has been an educational consultant on technology to educational
institutions and major corporations and a frequent speaker and lecturer on
educational, legal, and technology issues. He was appointed to the American
Association for Paralegal Education Board of Directors in October 2005;
there, he served as the founding chair of the Technology Task Force, where
he initiated the Train the Trainer program and the Cyber Idol competition.

ALICE HART HUGHES, JD, is a practicing attorney and experienced liti;

gator. She is a former Adjunct Professor of Paralegal Studies at Bucks County
Community College, where she taught Civil Litigation, Legal Research
and Writing, Accounting for Paralegals, Introduction to Paralegal Studies,
Negligence, and Family Law. She is the author of Real Estate Law Fundamentals
and participated in the production and script writing for the Video Law
Office Experience. Mrs. Hughes holds a degree in real estate and finance from
Temple University and graduated from Temple University School of Law.
She has practiced civil litigation extensively, working in midsized, multi;office
law firms. Her practice is limited to estate planning, administration, and litiga;
tion. In 2010, she was appointed to the Pennsylvania Board of Dentistry and
lectures on ethical issues in the medical subspecialty of podiatry .

•
XIV
 WHAT'S NEW IN THE FOURTH EDITION
• The Virtual Law Office Experience is now an integrated part of the
textbook. The end--of--chapter assignments use online video resources to
provide a realistic workplace experience where assignments are presented
in the form of e--mail directions from the ''supervising attorney'' to the
paralegal. Students are assigned to watch a scenario as an observer and
complete a task that they would be asked to do in practice.
Cases include simulations of:
A minor traffic accident
A major school bus injury case based on an N TSB case report
A product liability case
Personal injury of a minor injured on a school bus
• Federal Rules of Civil and Criminal Procedure have been updated.
• Electronic discovery rules and decisions have been updated.
• Chapter Introduction Videos by the authors appear online, providing an
overview of the chapter topic.
• Information on paralegal regulation has been updated.
• Exhibit and forms have been updated to reflect current practice.
• The Technology Resources Website has been updated with the most
recent trial version offers from legal software vendors.

Few students taking a civil litigation class have ever had any actual contact with
the courts or been involved in a lawsuit. As a result, most of their information
and beliefs about courts and trials come from television dramas, where every--
thing resolves itself in 30 to 60 minutes. In the real world, the process is slower
and more complex; in addition, litigation can be a bit of a m ystery because
most of what happens goes on behind closed doors. We have tried, in both the
text and the supplements, to open the doors of the law office and courthouse
to present the process and the procedures of the real world of law.

One way we hope to reveal the mysteries of litigation is through the extensive
use of videos. The text is now supported by two types of videos built into the
text as end of chapter assignments. Video Case Studies show students what
it is like to work in a practice. They follow the progress of a civil case from
the factual setting that gives rise to the lawsuit to the preliminary interviews
and investigations. The videos continue through the pretrial phases and con--
elude with the trial and appeal. These scenarios form a basis for discussion
and help create an appreciation for the interconnection between professional
ethics and actual practice and procedures. New to this edition is the Virtual
Law Office Experience that provides a realistic paralegal intern simula--
tion. A variety of cases are presented from the plaintiff view and from the
defense view from initial intake to arbitration and trial preparation. Students
are asked to complete tasks similar to those they will be given in an actual
xv
 practice. Completing these tasks results in the creation of a valuable port--
folio of work that can assist students in securing employment. Students can
view the cases and assignments atwww.pearson.com/goldman--civil--litigation.

In addition to presenting every stage of the litigation process on video, we

have included a complete set of pleadings for a comprehensive case involv--
ing a school bus accident. This case is based on a real--life accident reported
by the National Transportation Safety Board (NTSB). These pleading sam--
ples may be used to prepare one of the additional case studies provided in
Appendix 2 or 3; in this way, students can gain practice and simulate the
handling of a real case. All of the cases are based on actual incidents that may
be further researched, if desired, using the Internet.

Successful civil litigation practice requires a skill set that includes both knowl--
edge of legal concepts and the practical applications of that knowledge. You
might think this statement applies only to litigation attorneys, but it also per--
tains to the lawyers, litigation support paralegals, and information technolo--
gists who form the heart of the civil litigation team. Litigation practice today
calls on all of the knowledge and skills learned in formal courses of study and
on the intangibles learned from life as well. Ethics, soft skills, technology,
elements of substantive law, procedural rules, research, and writing skills are
all part of the package of skills needed by the members of the litigation team.

Civil litigation today is more complex than ever before. The pressures to be
more efficient, more productive, and more cost effective require the legal team
to make extensive use of technology when organizing and managing cases as
well as when presenting evidence at trial. No contemporary civil litigation text
can be complete without an explanation of the impact and use of technology.
Trial versions of some of the most widely used software in the legal field is
available for download from the Technology Resources Website at www.
pearsonhighered.com/techresources. The selected software includes examples
of each type of application program found in actual practice: office manage--
ment, case management, electronic discovery, and trial presentation software.

This book can be used either as a reference or as a refresher course in the ba--
sics and the advanced knowledge needed to be successful in civil litigation. It
has been written as a teaching text and as a practice reference manual, with a
complete set of case documentation that may be used as a template in future
assignments or real--life cases. As Albert Einstein said, ''I don't need to know
everything; I just need to know where to find it when I need it.''

We hope that you enjoy using this textbook and the supporting videos and case
material, and we encourage you to contact us with any concerns or suggestions.

Thomas F. Goldman, JD
Alice Hart Hughes, JD
•
XVI
 KEY THEMES EXPLORED THROUGHOUT THIS TEXT

UNDERSTANDING THE LITIGATION PROCESS

Litigation is a process, not a single event. Each action taken is the result of some decision made by the client
or the legal team. Each decision impacts the future direction of the case, which is a process with rules dic--
tated by the courts. To demonstrate the process, a complete set of documents in this text follows cases from
interview and investigation through trial and posttrial activity.

DEVELOPING CRITICAL THINKING AND PROCEDURAL SKILLS

End--of--chapter material focuses on developing critical thinking and hands--on skills. It includes exercises
and assignments broken down into three sections:

Concept Review and Reinforcement

Key Terms
Chapter Summary
Review Questions and Exercises

Building Your Paralegal Skills

Internet and Technology Exercises
Civil Litigation Video Case Studies
Comprehensive Case Study

Building Your Professional Portfolio

The Virtual Law Office Experience

UNDERSTANDING HOW TO HANDLE ETHICAL SITUATIONS IN CIVIL

LITIGATION
The text and resources are designed to build a strong foundational understanding of the ethical principles
that apply to the members of the legal team in actual practice. Resources include references to national and
individual state's codes of legal ethics and professional responsibility, Ethical Perspectives boxes integrated
throughout the textbook, and 16 ethics--related video case study segments.

ORGANIZATION OF THE BOOK

The book is divided into six units:
• Introduction to Civil Litigation
• Planning the Litigation
• Documents in Civil Litigation
• Formal Discovery Methods
• Trial of the Case
• Posttrial Issues
••
XVII
 CHAPTER PEDAGOGY AND FEATURES

OPENING SCENARIOS: THE CIVIL LITIGATION TEAM AT WORK

Each chapter opens with a scenario designed to focus the reader on the relationship of the chapter's content
to civil litigation practice. These scenarios offer insight into the operation of a civil litigation law firm and
describe situations that a professional might encounter on the job. The scenarios revolve around activities
in a fictional multi--location law office that is handling a major tort action through to the trial presentation.

ADVICE FROM THE FIELD ARTICLES

AND INTERVIEWS
These features present professional advice straight from the experts and
cover such topics as interviewing skills, developing your portfolio, profes--
sional development, handling clients, and more.

ETHICAL PERSPECTIVES
This feature raises students' awareness of ethical issues encountered by
the legal team and directs students to resources that will help them resolve
those issues.

PRACTICE TIPS
The goal of this feature is to provide practical tips for the litigation team based on the authors' experience.
Typical advice can incorporate the simple (always check the local rules), the practical (call the courthouse to deter. .
mine the electronic features available in the courtroom), and the obtuse (make sure the file formats are supported by
the program you select).

SKILL-BUILDING EXERCISES USING CASE RESOURCE MATERIALS

End--of--chapter practice materials, continuing case studies, and a comprehensive case study reflect the actual
activities of professionals working in the civil litigation area. Samples are placed throughout the chapters for
reference and guidance in preparing the assignments.

VIDEO CASE STUDIES AND VIRTUAL LAW OFFICE

EXPERIENCE
Civil Litigation: Process and Procedures is supported by a wealth of video simula--
tions that provide students with a window into the real world of litigation prac--
tice and build the practical skills necessary to succeed in today's workplace.
JJl/ /)/J ..
BUILDING YOUR PROFESSIONAL PORTFOLIO
One of the key outcomes of this course is the building of a professional portfolio of litigation documents that
can be shown to prospective employers and will function as on--the--job reference material in the future. At the
end of Chapter 1, you will find suggestions for organizing your portfolio. Then, as you move through the course,
you will find specific assignments that require the production of documents to be included in the portfolio .
•••
XVIII
 NEW! VIRTUAL LAW OFFICE EXPERIENCE

The Virtual Law Office Exper ience series has been integrated through the text to offer a simulated law of..
flee internsh ip. It is a multimedia program designed to allow stude nts to apply their knowledge and skills in
a workplace context. Throughout the course, students watch realistic video scenarios, work w ith case files
and d ocu ments, and use the technology tools they will find in the law office to do the work a paralegal will
be asked to do in pr actice. Throughout the course. students build a portfolio of work that demonstrates
that they have the training and exper ience e mployers are seeking.
One of the advantages of the V irtual Law Office Experience is that the student has the ability to work
on a case from beginning to end and develop a portfolio of related documents, including case setup, d iscov..
ery, pleading and posttrial d ocum entation, while using the online demonstratio n versions of actual law of..
fice softwar e. These portfolios may be valuable to srudents interviewing for positions in law offices as a way
of demonstrating their s kills and abilities.
• S t udents engage in a workplace experience
throughout the course as a law office intern

• S tudents see behind closed doors in practice

and in t he courts

• S t udents build a comprehensive portfolio of

\.Vorkplace products to show potential en1ployers

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Within the Virtual Law Office Experience program students can access a wealth of resources to complete
- •

assignments at any time including:

• Ask the La\\' L ibrarian Instruc.tional Videos to answer student's research and writing questions.
• Ask Technical Support for technology and legal software support.
• Forn1s File contains examples of commonly used legal documents for the m ajor legal specialties.
xix
 THE CIVIL LITIGATION VIDEO CASE STUDY SERIES

The video case studies incorporated into this text illustrate each
step of the litigation process and demonstrate a wide variety of
practice and procedural scenarios. Students can v iew the cases and
assignments atwww.pearson.com/goldman--civil--litigation.
A complete, 20--minute videotaped deposition of an expert
witness and an accompanying written transcript (in both .TXT
and .DOC formats) are provided for use in creating a deposition
summary; they could also be used in conjunction with trial or
deposition programs such as Lexis Nexis Sanction or Lexis Nexis
Case Map DocPreviewer.

Video Case Study List

1. Video Conferencing: Strategy Discussions 25. Attorney Meet and Confer: Electronic Discovery Issues
2. Confidentiality Issue: Family Exemption 26. Confidentiality Issue: Disclosure of Damaging Information
3. UPL Issue: Interviewing a Client 2 7. UPL Issue: Improper Supervision
4. Confidentiality Issue: Public Information 28. UPL Issue: Working with Experts-Deposition of a
5. UPL Issue: When Friends Ask Friends for Legal Advice Medical Expert, Dr. Galo
6. Parent and Child Consult the Legal Team 29. Remote Videoconference: Taking Fact Witness Video
7. Solicitation in the ER: Ethical Duties of the Profession Deposition
8. Fees and Billing Issue: Contemporaneous Time Keeping 30. Real,Time Reporting Witness Testimony: Deposing a
9. Fees and Billing Issue: Using Time Effectively Minor
10. Administrative Agency H earing 3 1. Video Deposition of a Treating Doctor: Deposition of
11. Arbitration before Three, Member Panel Treating Doctor, Dr. Lee
12. Settlement Conference with Judge 32. Mechanic's Deposition
13. Preparing for Arbitration 33. Final Pretrial Conference: Resolving Evidentiary Issues
14. Altercation on the School Bus 34. Preparing for Trial: Preparing for Deposition and Trial
15. School Principal Reacts 35. Fact or Expert: Resolving Objection in Videotaped
16. Zealous Representation Issue: H andling Evidence Deposition Discussions
17. Zealous Representation Issue: When You Are Asked to Lie 36. Jury Selection: Potential Juror Challenged for Cause
18. UPL Issue: Working with a Witness 3 7. A Salesman's Courtroom Testimony
19. Zealous Representation Issue: Signing Documents 38. Trial: Direct and Cross,Examination of a Witness
20. Zealous Representation Issue: Candor to the Court 39. Preliminary Jury Instructions before Trial
21 .Scheduling Conference with Judge: D iscovery Issue 40. Closing Argument: A Lawyer's Last Chance
Resolution 41. Judge Charges the Jury
22. Court H earing to Decide Who Represents a Minor: The 42. Expert Witness Video Deposition
Court's Duty to Protect the Child 43. Three,Judge Appellate Panel
23. Truck Driver's Deposition 44. A Corporate Officer Seeks Legal Advice
24. Confidentiality Issue: Need,to,Know Circle

xx
 CASE RESOURCES AVAJLABLE IN TEXT AND ONLINE

A variety of case materials and docu ments are available fo r use as exam ples and for completing assignments
throughout the course.

CHAPTER OPENING SCENARIO CASE STUDY

The chapter opening scenario case study sets the stage for the chapter topic. The scenarios revolve around
activities in a fictional multi,location law office that is handling a major civil action through to the trial
p resen tation. At the end of each chapter, an assignm ent revisits the scenario and poses questio ns involv ing
procedural issues.

• COMPREHENSIVE CASE STUDY: NTSB SCHOOL BUS ACCIDENT,

MOUNTAINBURG, ARKANSAS
A sample case, based on a real-life accident as reported b)' the National Transportatio n Safecy Board
(NT SB). provides an overview of the litigation process from beginning to end, including a complete set
of documents and pleadings. A brief S)'nopsis of this case is presented in Appendix 2. and the full NTSB
report (com p lete with related exh ibits and photographs) is provided o nline.
A full set of all pleadings and related documents for cases discussed in the text is also provided online;
these documents can be used as examples and ten1plates in the completion of assignments in the text. The
school bus acciden t case is presented as a con1prehensive demonstration casei however, the pleadings and
documents are meant to be used as examples and templates for completing assignments in the text that
involve other cases assigned by the instructor.
At the end of each chapter is an assignment t hat involves analyzing a case and preparing the necessary
documen ts for the attorney's review. The assignment is a task comparable to w hat an attorney might ask a
par alegal to do. The resulting documents contribute to the student's professional portfolio as specific work
samples.
The video case studies t hat are built into this textbook illustrate many of the steps in t his sample case
and the situations related to the s horter cases described below. The videos deal with scenarios arising from
client interviews through to investigation, trial, and appeal.

• ADDITIONAL, SHORT CASE STUDIES FOR USE IN ASSIGNME NTS

Additio nal. shorter case studies, including a simple property da mage case, a personal injury case, and a civil
assault case, are provided in Appendix J. These case stud ies m ay be used for the completion of assignments
w ithin the text to provide students with hands-0n experience preparing pleadings and working with case
documents. Documents fo r these cases are provided online and include:

Simple Motor Vehicle Propert)' Dan1age Claim Case

• Police incident report
• Estimate of repairs from Pope's Garage
• Notes of client interview
• Notes of witness interview

xxi
 Personal Injury Claim (Injured Student) Medical Treatment Case
• School incident report
• Emergency room report
• Treating surgeon (Dr. Lee) report
• Dr. Lee's medical bill
• Medical records
• HIPAA release form signed by parent
Civil Assault on a School Bus Case
• School incident report
• Psychologist for attacker report (antisocial with psychotic tendency)
• Report of school nurse on search of student for knife
• HIPAA release form
• Notice to opposing counsel requesting medical records
• Medical records of victim, Davis Hilary

ADDITIONAL COMPREHENSIVE CASE STUDIES

We have provided two additional school bus accident cases and a major plane crash case. These case studies
can be used in place of the Mountainburg case study to complete assignments in the Comprehensive Case
Study section at the end of each chapter. Each of the complex cases is based on an NTSB report of an actual
event and allows students to further develop their research skills as they find information on the cases
through Internet searches. These full NTSB reports are provided online:
• School Bus-Truck Case, Albany, New York
• School Bus-Truck Case, Arlington, Virginia
• Airplane Crash, Buffalo, New York

••
XXII
 LEGAL SOFTWARE RESOURCES

Students can download the latest (time,limited) versions of the

most popular legal software from the Technology R esources
Website at www.pearsonhighered.com/techresources. This
website also contains links to software tutorials, video over,
views, teaching notes, and a variety of other useful resources,
including forms for faculty to request lab copies of software
from vendors.
·---- ~·-
... .._...._ __
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......... --- .__
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--
1= --- --·-..-·-·-·-
Llt:IMClfs:• e ~~ . . . .>,;;;
==
._.

___
•
...........
OFFICE MANAGEMENT AND
ACCOUNTING SOFTWARE
______ -· .... ._........ ...

Most law firms, from the sole practitioner to large, multi,office practices, use office management and ac,
counting software extensively. This software is useful for keeping accurate calendars of appointments,
schedules, and deadlines; for tracking time and billing information, client funds, and costs; and for preparing
accurate billing records. One of the most popular and best,supported programs is CLIO.

CASE ORGANIZATION AND MANAGEMENT SOFTWARE

Case management software can be used to organize the cast of characters in a case, the documents, the rel,
evant timetables, the relevant issues, legal authority, and other desired information. Top programs useful
here are LexisNexis CaseMap and LexisNexis TimeMap.

PRESENTATION AND TRIAL GRAPHICS SOFTWARE

Graphic creation programs, such as SmartDraw, can be used to create stand,alone presentations. They can
also be used to create graphics for presentations created with other programs such as Microsoft PowerPoint.
The obvious advantage of this type of software is that it gives the legal team the ability to create its own
graphics, thus eliminating the need to hire graphic artists and outside consultants.

THE ELECTRONIC COURTHOUSE

Litigation support software, such as Lexis Nexis Sanction, is used for in,court displays of docun1entary evi,
dence, graphic presentations, and simulations of accident cases. Relevant portions of illustrations and docu,
ments can be displayed as a witness testifies, thus eliminating the need to distribute paper copies in court .

•••
XXIII
 INSTRUCTOR RESOURCES

INSTRUCTOR'S MANUAL WITH TEST BANK

Includes content outlines for classroom discussion, teaching suggestions, and answers to selected end--of...
chapter questions from the text. This also contains a Word document version of the test bank.

TEST GEN
This computerized test generation system gives you maximum flexibility in creating and administering tests
on paper, electronically, or online. It provides state--of--the--art features for viewing and editing test bank
questions, dragging a selected question into a test you are creating, and printing sleek, formatted tests in a
variety of layouts. Select test items from test banks included with TestGen for quick test creation, or write
your own questions from scratch. TestGen' s random generator provides the option to display different text
or calculated number values each time questions are used.

POWERPOINT LECTURE PRESENTATIONS

Our presentations are clear and straightforward. Photos, illustrations, charts, and tables from the book are
included in the presentations when applicable.
To access supplementary materials online, instructors need to request an instructor access code. Go to
www.pearsonhighered.com/irc, where you can register for an instructor access code. Within 48 hours after
registering, you will receive a confirming email, including an instructor access code. Once you have received
your code, go to the site and log on for full instructions on downloading the materials you wish to use.

AL TERNA TE VERSIONS: EBOOKS

This text is also available in multiple eBook formats. These are an exciting new choice for students looking
to save money. As an alternative to purchasing the printed textbook, students can purchase an electronic
version of the same content. With an eTextbook, students can search the text, make notes online, print out
reading assignments that incorporate lecture notes, and bookmark important passages for later review. For
more information, visit your favorite online eBook reseller or visit www .mypearsonstore.com .

•
XXIV
Another random document with
no related content on Scribd:
universally current in America today, was, I believe, not known here
till the last year of the war.
The exact difference between flu and grip I leave to the physician
to determine; both differ from a cold in being invariably accompanied
by fever, and in both the patient feels the worst after he gets well.
But the speed with which the germs travel through the air
remains a mystery. I remember one flu epidemic that hit New York in
the morning and was prevalent in remote country districts in
Michigan the following afternoon. Manifestly, therefore, the accursed
thing does not depend on the comparatively slow method of
transmission from one person to another.
If one can possibly afford the time and money, the best way to rid
oneself of the after effects of the flu is to leave the icy North in winter
time and travel South. There are many coughs in every carload, but
soon after they arrive here they cease.
In fact, if one can afford it, it is a good thing to come South in
winter whether one is sick or well. “See America First” applies
especially to the winter season. Europe should be visited only in the
summer, because no Americans are comfortable in Europe at any
other time. George Ade once tried to spend a winter in Venice and
he nearly froze. He declared that the next winter he would spend in
Duluth, where they have steam heat and he could keep warm.
The intolerable thing about most “winter resorts” in Europe is that
they are so much warmer outdoors than in. The American takes a
pleasant walk in the mild sunshine, and, his body in an agreeable
glow, he enters his hotel room which has the chill of the grave. I
know one man who, whenever he entered his room, put on overcoat,
fur hat, gloves, arctic overshoes and then sat down to be as
comfortable as he could.
One impecunious student who spent the winter at a Continental
university in a room where apparently no means of heating had ever
been employed told me that he kept warm the entire winter on only
one stick of wood. In response to my question, he said that his room
was on the fifth story; he would study for ten minutes, then fling the
stick out of the window. He ran down five flights of stairs, picked up
the stick, ran up the stairs and found that this violent exercise kept
him warm for exactly ten minutes, when again he flung the stick out
of the window. That was an original method, but it is practicable only
for those who are young and vigorous. It would be almost useless for
an old lady with angina pectoris.
In the winter season our Southern States, or Arizona, or
California are what I especially prescribe. For those who wish eternal
summer with all its pleasant heat and the delights of sea-bathing,
Southern Florida is the best; for those who are middle-aged and
elderly, who wish to play golf and tennis, in crisp autumn-like
weather, Georgia is incomparable. Here in Augusta the weather is
frequently summer-hued; on this blessed January day, for example,
the temperature is 78. But in general, the January and February
weather here is like mild October in New England, with gentle days
and keen nights, good for sleep.
When I was young very few Northerners went South in winter; all
who could afford it went in the summer to the mountains or the sea.
But today, when there are many ways of keeping cool in the cities,
and when the country club is accessible every afternoon and
evening, an immense number of business men stay “on the job” in
the summer and take their vacation in the winter.
A perfect climate in the winter lies only twenty-four hours from
New York. Furthermore, it is an education for Northern men and
women who live in the South for a winter season to become
acquainted with our Southern people, “whom to know is to love.” To
me, a down-East Yankee, it is a delight to meet these charming,
gracious men and women of the South; and it is an especial delight
to hear the Southern accent, especially on the lips of lovely women.
I wish I might live one hundred years from now. Then, thanks to
the men of science, every year there will come a day in November
when a general notice will be given in our New England universities
for every member of the faculty and students to be indoors at a
certain hour. At the prescribed moment, all the dormitories, lecture
halls, offices and laboratories will rise majestically in the air, carrying
their human freight. They will sail calmly South, and in a few hours
float gently down on a meadow in Georgia or Florida, there to remain
until the middle of April.
 XXXI
GOING TO CHURCH IN PARIS

There are not many Protestant churches in Paris, because there

are not many Protestants; and of the vast throng of Americans who
visit Paris every summer, I suppose, comparatively speaking, only a
few go to church. The average tourist does not visit Paris with the
idea of entering churches except as a sight-seer. Yet the American
Church of Paris with the Rev. Dr. Joseph Wilson Cochran as pastor,
is a flourishing institution. The auditorium is filled every Sunday
morning, and the whole work of the church in its Sunday school, Boy
Scouts, classes for students, charitable enterprises, etc., is so active
and successful that a new edifice has been found necessary. They
are erecting a fine church in a splendid location on the Quai D’Orsay;
the steel frame is already in place and by another year the building
should be complete. Then there is also the American Cathedral
church of the Holy Trinity, St. Luke’s Chapel, the Catholic church of
St. Joseph, the Methodist Memorial church, the Baptist tabernacle,
the First Church of Christ Scientist, and the Second Church of Christ
Scientist.
Now I go to church not reluctantly, because I think I ought to, or
from any sense of duty, still less from the Pharasaical attempt to set
an example to my less godly neighbours. I go to church because I
enjoy going, because I really want to go, because the Christian
church is my spiritual home.
Last Sunday I attended the French Protestant church of the
Oratoire, in the rue St. Honoré. The attitude of the clergy and laity in
this church is very similar to that of the Rev. Dr. Harry Emerson
Fosdick and his congregation in New York. Last Sunday the big
church was well filled, and the services, with the single difference
that everything was in the French language, were similar to those of
any evangelical Protestant church in America. There was no ritual.
The prayers were extempore, and among the hymns sung was the
familiar one with the familiar tune, “Lord, I Hear of Showers of
Blessing,” which was just as good in French as in English.
I felt that I was among my own people, the kind with which I grew
up, although there were very few Americans present. The French
audience seemed to be composed of the same sort that one sees in
any Methodist or Baptist church in America. The pastor preached on
the parable of the sower, and explained to the audience the
significance of the evangelical Protestant church, as distinguished
from the more formal and ritualistic Catholic institution. The Catholics
provide beautiful music, a dignified ritual, which is very impressive,
he said; “but we appeal not to the eye and the ear, but to the mind
and the heart.” I do not think he meant to be antagonistic to the
Catholics; he was trying to make his congregation see that there was
a good reason for attending church, even though the service might
have little or no appeal to the senses.
It was peculiarly interesting for me to hear this aspect of religious
worship emphasised, for on the preceding Sunday in London I
attended service in an Anglo-Catholic church, where the preacher
was the Rev. T. P. Fry, the husband of the famous novelist, Sheila
Kaye-Smith. His sermon emphasised only one thing, the Blessed
Sacrament. He dwelt on its supreme importance, on its immense
significance, of what it should mean to every one who partakes of it.
The service was beautiful, with an elaborate ritual, and it was clear
that the preacher thought of only one thing—the Mass.
The English novelist, Compton Mackenzie, has recently written a
trilogy of novels dealing at great length and with much detail with the
life and career of a young English priest. Mr. Mackenzie, like G. K.
Chesterton and Maurice Baring, has entered the Catholic church,
and while these three novels, The Altar Steps, The Parson’s
Progress and The Heavenly Ladder, are frankly Catholic
propaganda, I found them interesting and valuable, because I was
brought up in the extreme Protestant point of view, and it is important
for me to hear and if possible to understand something quite
different. Mr. Mackenzie’s young parson says that he does not care if
he never succeeds in preaching a good sermon. His only interest is
to give the congregation the Blessed Sacrament.
An excellent Catholic lady once said to me, “You do not
understand our religion,” I answered, “You must not say religion; your
religion is my religion. We have exactly the same religion. What I do
not fully understand is your form of worship, the significance of the
various parts of your ritual.”
It is a matter of great rejoicing that the old antagonism between
Catholics and Protestants has so largely disappeared. It is
unfortunate that any irritation or misunderstanding should remain. In
a world so full of vice, so full of scepticism, and above all so full of
indifference to religion, there should be not the slightest shade of
hostility between adherents of Christianity. We should not be divided
in the presence of implacable foes.
A magnificent example of the true Christian spirit was given at
the beginning of this century by one of the greatest men of modern
times, Pope Leo XIII. He publicly offered prayer for the restoration to
health of Queen Victoria of England. When one thinks of the historic
antagonism, that was a noble and truly religious act.
Once in the cathedral at Cologne, during Mass, I sat between a
devout German Catholic and an American tourist. The German
bowed, knelt, crossed himself; the American used a pair of opera
glasses, as if he were at a spectacular play. I should like to have
given to my countryman a little pamphlet written by a Catholic priest,
called What Are They Doing at the Altar? so that he might have
understood what was going on, and at least have shown some
reverence.
There is one important thing that we Protestants ought to learn
from our Catholic friends. Many Protestants go to church just to hear
a sermon, and if the preacher is in bad form that morning, they feel
disappointed, almost aggrieved, as if they had gone to the movies
and the pictures happened to be poor.
 Going to church ought not to be merely passive; to go and see if
the minister can entertain us. It should be a community service,
where the audience participates and where spiritual refreshment and
stimulation may be obtained. If we go to church merely to hear a
popular preacher, then we might as well stay at home and read a
popular book. The feeling of actual participation is the supreme need
of the Protestant church today; not more clever preachers, but a
genuine hunger in the congregation for spiritual nourishment.
 XXXII
OPTIMISM AND PESSIMISM

I am often called an optimist, and so I am; but perhaps not in the

popular meaning of the word. When a worldly wise man calls a person
an optimist, he usually regards him with intellectual contempt, just as
the elaborate courtesy toward women in the age of chivalry thinly
disguised a cynically sensual attitude. Optimism is associated in many
minds either with ignorance of life or mental inferiority; and when
certain persons call others optimists, look out for them!
Thus recent definitions of the optimist illustrate the superior attitude
of the pessimist: “An optimist is a fool unfamiliar with the facts.” “An
optimist is one who falls out of a fourth-story window, and as he goes
by the third story, he says, ‘So far, so good.’” “An optimist is one who at
night makes lemonade out of the lemons that have been handed to
him all day.” “A pessimist is one who lives with an optimist.”
Now the familiarly unpleasant back-slapping cheerio person, with a
genius for the inopportune, is not necessarily an optimist. He is a
nuisance. He was well known and dreaded like a pestilence among the
ancient Jews. See the Book of Proverbs, 27:14, “He that blesseth his
friend with a loud voice, rising early in the morning, it shall be counted
a curse to him,” and 25:29, “As he that taketh away a garment in cold
weather and as vinegar upon nitre, so is he that singeth songs to an
heavy heart.”

* * * * *
A man who attempts to console another by making light of his
troubles or by pretending that things are otherwise than what they
obviously are will not get very far. One might as well pretend in
January that it is June. You cannot get rid of obstacles by ignoring
them any more than you can solve problems by forgetting them. Nor
can you console sufferers by reminding them of the woes of others or
by inopportunely emphasising other things.
If a man slips on an orange peel that some moron has left on the
pavement and breaks his leg, you will not help him by saying,
“Yesterday a man fell here and broke his neck.” If a manifold father
loses one of his sons by a motor accident, you can’t help him by
saying, “Cheer up! You’ve got three sons left.”
“Sufficient unto the day is the evil thereof.” These terrible words
were spoken not by a peevish invalid or by a bankrupt, but by the Light
of the World. He always and everywhere recognised the forces of evil
and never pretended that life was all sunshine. Religion does not
pretend that everything is easy and comfortable, for religion is not
meant to fill our minds with illusions but rather with fortitude. Our Lord
came into the world to show us how to bear the burden of life
cheerfully and bravely; life is not easy, but His yoke is.
A true optimist is one who recognises the sorrows, worries,
drawbacks, misfortunes of life, its injustice and inequalities. But while
seeing these things, the optimist believes that no matter how strong
error may be, truth in the long run will triumph, even though it may not
be our truth.
The optimist believes that in the long run virtue has superior
staying power as compared with vice; that goodness will eventually
defeat evil; that life means something; that character counts; that men
and women are of more consequence than sparrows; in short, that this
is God’s world and that the moral law is as unshakable as the law of
gravitation.
What, then, is a pessimist? A pessimist is one who believes that
the evolutionary process is the tragedy of the universe or, as Mark
Twain put it, that life is the worst practical joke ever played on man by
destiny. That from one primordial cell should have developed all
complex forms of life through the vegetable kingdom, through the
lower forms of animal existence up to man, is generally regarded as an
advance. The true pessimist regards it as an irremediable disaster, as
the worst of all possible mistakes. According to him, it would have
been better had the evolutionary march stopped with the lower forms
of animal life and never reached self-consciousness.
The fish, for example, is better off than men and women. The fish
functions perfectly. He does exactly what he was meant to do, he has
not the torture of self-conscious thought, no fear of death, and dies at
the appointed time. But man has thoughts and dreams and longings
that seem to belong to eternal life and eternal development, whereas
in reality he dies like the fish; only with all his dreams and longings
unsatisfied and with the constant fear and horror of annihilation in a
universe where, no matter how sublime or far-reaching his thoughts,
he is, in reality, of no more importance than a fish and must in the end
share the same fate.
Taking this stiff definition, are there then any genuine pessimists?
Certainly there are. Thomas Hardy was exactly such a pessimist. He
affirmed in his last volume of poems that man would have been
happier if he could have remained at the stage of lower animal
development, with no power of thought. Alfred Housman, the great
lyrical poet, says we could all be happy, if only we did not think. It is
when we think that we are overwhelmed with gloom.
The custom of congratulating others on their birthdays is really an
acquiescence in optimism. We instinctively (and I believe rightly)
regard life as an asset. But Swift believed that the worst thing that had
ever happened to him was being born. He therefore, like the honest
man he was, kept his birthdays as days of fasting and mourning. He
wore black and refused to eat.
For my part I find daily life not always joyous, but always
interesting. I have some sad days and nights, but none that are dull.
As I advance deeper into the vale of years, I live with constantly
increasing gusto and excitement. I am sure it all means something; in
the last analysis, I am an optimist because I believe in God. Those
who have no faith are quite naturally pessimists and I do not blame
them.
 XXXIII
TRANSLATIONS

Of course it is best to read every book in the language in which it

was originally written; but no man has ever been able to do that. Elihu
Burritt, “the learned blacksmith,” could, so I have heard, write an
intelligible sentence in fifty languages, but there were many more than
fifty of which he was ignorant. The vast majority of even intelligent
Americans know no language but their own, and that they do not know
any too well. It becomes necessary, therefore, unless one is to cut
oneself off from foreign thought and literature, to have recourse to
translations; a reader of a newspaper does that every day, though he
is not always aware of the fact.
Inasmuch as the greatest works of literature have been translated
many times into English, it is rather important to know which is the best
translation; no one driving a car would take a bad road if a better one
were available.
Great translators are rarer than great creative authors. In order to
achieve the best possible translation, one must in the first place have
an absolute command of two languages, an accomplishment that is
not nearly so common as is often supposed. Indeed, this is too often
supposed erroneously by the translator himself.

* * * * *
In the history of the literature of the world, there are four supremely
great poets; no one can name a fifth who is in their class. Those four,
in chronological order, are Homer, Dante, Shakespeare and Goethe.
Every reader, every lover of good books, should know something of
the work of these four mighty ones, for there is a perceptible difference
between the best and the second best. Goethe’s masterpiece is Faust,
and it so happens that we have an English translation of Faust that is
so much better than all other English translations that no comparison is
possible. This is by the American, Bayard Taylor.
It was the major work of his life; he spent many years of sedulous,
conscientious toil perfecting it. It has three admirable features—the
English style is beautiful; it is as literal as is consistent with elegance,
in this work amazingly literal; it preserves in every instance the original
metres which change so often in the German. If you wish to know how
superior Taylor is to all other translators of Faust, just read aloud the
four stanzas of the Dedication in any other English version and then try
the same experiment with Taylor’s. Those who cannot read German
and yet wish to come in contact with “the most spacious mind since
Aristotle” have the satisfaction of knowing they are very close to the
original—both in thought and in expression—in reading Taylor.
Goethe is not only one of the supreme poets of the world; he has
the distinction of being the author of the best German novel, Wilhelm
Meister. The best translation of this was written and published by
Thomas Carlyle more than one hundred years ago. In reading this
translation, therefore, one is reading in the same book the works of two
men of genius. Carlyle had had almost no opportunity to hear spoken
German; he was largely self-taught. But it was characteristic of his
honesty, industry, conscience, as well as of his literary gifts, that he
should have done his difficult work so well that no one has been able
to equal it.
In the course of the novel occurs the exquisite lyric Know’st thou
the land? The best English translation of this song was made about
fifteen years ago by the late James Elroy Flecker.
No absolutely first-rate translation of Dante into English exists. The
best plan is probably to read one in prose and one in verse; the prose
by Charles Eliot Norton, the verse by Cary.
A large number of English writers have had a try at Homer. George
Chapman, whose version inspired Keats, made a thundering
Elizabethan poem. Pope, according to his contemporary, Young, put
Achilles into petticoats, but Pope’s translation has anyhow the merit of
being steadily interesting. Butcher and Lang wrought together an
excellent prose version of the Iliad and Odyssey, while the latter poem
was artistically translated into rhythmic prose by George Herbert
Palmer.
There is an English translation of another work that stands with
Taylor’s Faust as being all but impeccable. This is Edward FitzGerald’s
version of the stanzas of Omar Khayyam. FitzGerald really wrote a
great English poem; it is only necessary to compare his version with a
literal prose translation, in Nathan Haskell Dole’s admirable Variorum
edition, to see how big is the debt we owe FitzGerald. If Omar and
Edward have met in the other world, I am sure Old Fitz has received
due acknowledgment.
The great Russian novelists, Turgeney, Dostoevski and Chekhov,
have been magnificently translated by Constance Garnett. She has
also Englished some of the novels of Tolstoi and Gogol. She has a
positive genius for translation. In the centenary year—1928—began an
entirely new version of the complete works of Tolstoi, by Aylmer
Maude. Mr. Maude knew Tolstoi intimately and is himself an admirable
writer.
 XXXIV
MUSIC OF THE SPHERES

When I was a small boy in Hartford, I often used to see Mark

Twain standing in the open air in his shirt-sleeves, the eternal cigar
in his mouth and a billiard cue in his hand. The billiard room was on
the top floor of his house and a tiny balcony projected from one of
the windows; nearly all dwellings built in the seventies had strange
abscesses of that kind. While his opponent was shooting, Mark
would come out on that platform for a breath of air. Billiards was the
only game he cared for; he was by no means fond of exercise. He
always said, “Never stand up when you can sit down; never sit down
when you can lie down.” Many years later, when he was living in
New York, he often attended professional billiard matches and the
spectators often looked away from the table at Mark’s superb leonine
head and noble old face.
Another famous contemporary writer also found his only
recreation in billiards—this was Herbert Spencer. Every afternoon he
would give himself and the unknowable a rest and go to the
Athenæum Club in London for a game, where his own cue is still
preserved as a memorial. If none of his cronies was available, he
would challenge a stranger. His philosophy afforded no balm in
defeat. On one occasion when he was beaten badly he put his cue in
the rack and remarked testily that to play billiards well was an
accomplishment; to play it too well was the sign of a misspent life.
It is rather strange, since most of our American games are
derived from the English, that we should have taken billiards from
France. Few games are more uncommon in the United States than
English billiards; cricket is not nearly so unusual a spectacle.
 Almost every American boy wants to play billiards. When I was
fourteen one of my schoolmates found a man who wished to sell a
small table—it had rubber tubes for cushions—but the price was
prohibitive, twenty dollars. Our total assets were seventy-five cents.
We remembered that my friend’s sister had received a twenty dollar
gold piece as a birthday present. Of what possible use could it be to
her? We persuaded her to donate it to the good cause, and if any
one thinks that our powers of persuasion were extraordinary, he
thinks accurately, for I subsequently persuaded her to become my
wife. We bought the table and set it up in my house late one
Saturday night, too late, alas, to play. Father would not allow me to
touch it on Sunday, and early Monday morning I had to be off to
school. We got out at four o’clock, made straight for that table and
played till eleven at night, not stopping to eat.
I know of no game at which professional skill has developed
more rapidly than at billiards. It seems incredible, but only fifty years
ago there were four balls on the table and the ordinary friendly game
was 34 points! Almost any professional today could run a thousand
points—indeed he could go on indefinitely.
I regret that the beautiful game of cushion-caroms, so common
in the eighties among the professionals, has become obsolete. In
that game there could be no nursing, because one had to make the
cue ball hit the cushion either before making the carom or after
hitting the object ball. The gentlemen of the green cloth who were
most proficient at this game were Vignaux, the Frenchman, and the
Americans, “Jake” Schaefer, father of the present expert of that
name; Slosson, Sexton and Sutton. In Allyn Hall at Hartford I saw a
great match between Vignaux and Schaefer. M. Vignaux was a large
man and very dignified; in his evening clothes he looked like a prime
minister. Mr. Schaefer was so small that Maurice Daly used to call
him the little shaver. They were formally introduced to the spectators
by the referee, who remarked with immense unction, “Mr. Schaefer
has never in his life played with his coat on; he asks the kind
permission of the audience to remove it.” This privilege was granted
with fervent applause. When the game began to go against him, M.
Vignaux also removed his swallowtail.
 At that time the highest run that had ever been made at cushion-
caroms was 77, which had been accomplished by Sexton. On this
night, by dazzling open-table play, Schaefer made a run of 70. He
was called the Wizard, because he played with extreme rapidity,
exactly the opposite of Slosson, who was known as the Student.
Now the popular professional game is the balkline, 18.2. A
recent champion is Edouard Horemans of Belgium, who won the title
from young Schaefer in a hair-raising match at San Francisco.
Horemans is a left-handed player and in every respect a worthy
champion. His rail play is phenomenal. I saw him give an exhibition
on his first visit to America in 1920 and it was clear that he was a
dangerous competitor.
Who is the greatest player in history? It is hard to say, but I
suspect there never was a greater player than Napoleon Ives. He
was one of the first to use a cue weighing more than twenty ounces
and was all but unbeatable. Schaefer (senior) once beat him with the
anchor shot, which was afterward barred. Unfortunately, tuberculosis
cut Ives off in his prime. The heated room, the chalk dust and the
excitement of close contests were too much for him.
 XXXV
DOG BOOKS

The dog, except in very high latitudes, is not so useful as the

horse, the mule, the camel, the donkey; he cannot supply food and
drink, like the cow and the goat; but for all that, he is, among all the
lower animals, man’s best friend. Even here, as in bipeds, we do not
prize our friends for what they can do for us, but for their mental and
moral qualities.
If it were possible to collect in one heap all the books and articles
that men have written in praise of dogs, it would be a sky-scraper. I
cannot tell what the earliest literary allusion to dogs is; but I think it
strange that the Bible is so silent. Those books representing the
social history of the Jews for many centuries, contain the most
beautiful poetry and prose ever written, as well as the most tender
and comforting assurances; but they indicate little interest in animals
as companions or pets. The word dog is repeatedly used as a term
of degradation, and for some unknown reason the Jews were
forbidden to bring into the sanctuary the price of a dog, which was
coupled with the wages of sin. The only allusion I have found to the
dog as a companion is in the Apocrypha, in the eleventh chapter of
Tobit: “So they went their way, and the dog went after them.” Even
here the dog apparently had to force his attentions upon man, which
is a way he has when unappreciated.
The fact that in the New Testament the dogs ate of the crumbs
from the table and that the street dogs licked the sores of Lazarus
the beggar, proves nothing in the way of appreciation; other animals
moved freely about the houses in Palestine, and they were not kept
for the charm of their company.
 But in the old Indian books of the East, many centuries before
Christ, the dog’s fidelity and social attractions were prized; as is
shown by the well-known story of the righteous pilgrim coming to the
gates of heaven with his dog. He was told to walk right in. “And my
dog?” “Oh, no dogs allowed.” “All right, then I don’t go in.” This man
thought heaven would not be heaven without dogs, as Siegmund
cared naught for heaven without Sieglinde.
Pope alluded to the Indian love of dogs:

“But thinks, admitted to that equal sky,

His faithful dog shall bear him company.”

The Greeks loved dogs. One of the most affecting incidents in

Homer’s Odyssey is where Ulysses returns after years of wandering,
and, being in rags, no one recognises him. But his dog Argos, who
had waited for his master expectantly all these years, instantly sees
and knows him, and through the beggar’s disguise salutes the king.
He wags his tail and dies of joy.
English literature is filled with dogolatry. Dr. John Brown’s Rab
and His Friends (1858), became a little classic. Tennyson
worshipped dogs, and always had two or three huge dogs in the
room while he composed poetry, which he read aloud to them. His
poem Owd Roa (Old Rover), describes how a dog saved a family
when the house was on fire. Bret Harte made a marvellous sketch of
the strange appearance and characteristics of the dog Boonder.
Stevenson wrote a whimsical essay, The Character of Dogs, in
which he proves conclusively that many dogs are snobs. They
certainly are; they will fawn on well-dressed strangers, and try to bite
the iceman.
Maeterlinck has declared that the dog is the only conscious
being in the world who knows and is sure of his god; in The Blue Bird
he exalted the moral character of the dog, though I find it hard to
forgive him for his slander of the cat. Richard Harding Davis’s
masterpiece—among all his brilliant short stories—is The Bar
Sinister, an imaginative study of dogs. Rudyard Kipling has
celebrated the virtues of dogs both in prose and verse.
Vivisection and dogs have called out many poems, of which two
of the most notable are Robert Browning’s Tray and Percy
MacKaye’s The Heart of a Dog.
Jack London’s masterpiece is The Call of the Wild, where the
great dog reverted to primitive impulses and habits. This is an
imperishable work of literature, and although cast in the form of
prose fiction, has much of the elevation and majesty of poetry.
Among contemporary writers, Albert Payson Terhune has
specialised in dogs, and done admirable work in canine
psychoanalysis. The late Senator Vest, when a young man, made a
speech in court on dogs which will outlast his political orations.
But of all the works in prose or verse, ancient or modern that
celebrates the virtues of the dog, the most admirable is the novel,
Bob, Son of Battle, by the late Alfred Ollivant. It was published in
1898, and was his first book, written under peculiar circumstances.
Mr. Ollivant was a young Englishman who had injured his spine in
football; then, having apparently recovered, he received a
commission in the artillery at the age of nineteen. A fall from his
horse permanently injured him, so that he was an invalid for the rest
of his life—he died in 1927. For the first few years he was not able to
leave his bed, and at the age of twenty, in horizontal pain and
weakness, began to write Bob. It took him three years to finish the
book. In England it was published under the poor title, Owd Bob, and
attracted no attention; but in America the publishers wisely changed
the name to the alliterative Bob, Son of Battle, and the book sold by
the hundred thousand. (Those who are interested in the first editions
should know that the first English edition differs in style from the first
American edition; the London publishers delayed publication, and
the author revised the story without injuring it.)
It is a curious fact that this book, written by an Englishman for
Englishmen, and dealing exclusively with English scenes and
customs, should have attracted no attention in the land of its birth,
while selling like the proverbial hot cakes in every city and village in
America. In public lectures in Texas, California, and all over the
middle West and the East, I had only to mention the name of this
novel and a wave of delighted recognition swept over the audience.
But even ten years after its appearance it was practically unheard of
in England. I asked William De Morgan, Henry Arthur Jones, and
William Archer if they had read it; they had never heard of it.
Some years after that, however, a cheap edition was published
in Great Britain, and the book slowly made its way, and is now over
there as here an acknowledged classic. Its popularity was increased
by its being made into a motion picture, and Mr. Ollivant was elected
to the Athenæum.
The two most remarkable dogs I ever met in fiction are both in
Bob, Son of Battle—the hero, Bob, the Grey Dog of Kenmuir, and the
villain Red Wull. Their continued rivalry has an epic force and
fervour. It is the eternal strife between the Power of Light and the
Power of Darkness.