Be sure to look at problem from client perspective and judicial perspective.Be clear and use John’s writing principles.

Get out of jail free card?26c, 11b2, 60

Civil Procedure OutlineChristina GibsonProf. Adam SamahaFall 2004

I. Introduction to Civil Procedure A. Procedure and Power

i. Capron v. Van Noorden U. S .Supreme Ct. 18041. Capron brought trespass of case against Van Noorden2. Capron lost and brought appeal based on court error

a. Court forgot to establish the citizenship of Capron, and therefore, did not establish jurisdiction of the court (federal court)

b. If both parties were from the same state, this case should have gone to state court

c. It is the explicit duty of the court to establish its jurisdiction3. Judgment was reversed b/c jurisdiction was not established

a. Jurisdiction has to be established by Article III and the federal statutes on civil procedure

4. Plaintiff lost on substantive law, but the judgment was reversed b/c of court errorii. Why is jurisdiction so important?

1. It limits the power of the courts2. limits the case load of courts3. Calms fears about centralization of power (or power taken away from the states)4. It’s important to control the burden/cost on the federal court system5. There are certain procedural norms that the court is obligated to police

iii. Types of Jurisdiction1. Subject-matter jurisdiction

a. Federal cts. have limited jurisdiction b/c they can only decide certain casesi. Only hears cases regarding a federal question (constitution)

ii. Or parties that have diversity of citizenship (from differing states)iv. Should the judgment have been reversed for the court’s error?

1. Arguments for reversal:a. It sets a precedent with a clear rule going forwardb. It was worth the sacrifice of these parties in order to set the rule

2. Arguments against reversal:a. Incentive for parties to generate their own errors, and if lose in

judgment/verdict, to appeal on those errors.b. Parties “get off” on a technicality and justice is not served.

B. Systems of Procedure and Models of Judicial Behaviori. Procedural Laws

1. Sets out the rules for enforcing substantive rights in the court2. provides mechanism for applying rules to concrete disputes3. Without civil procedure, there’s no standard method of litigation4. intends to result in a satisfactory resolution for all parties consistent with the law5. Provides structure6. validates the integrity of the legal system

ii. Common Law1. Originated in England2. rules derived from court cases arising out of disputes between adverse parties

iii. Objectives of the Judicial System1. Justice-pursuit of fairness in trials so that all parties have the opportunity to

present their case2. Settlement-a just resolution3. Law- courts generating policy or law (real objective??)4. Consistency across cases5. Truth-mechanism for gathering information and resolving conflicting stories6. Fast, cheap, and efficient-to secure the just, speedy, and most inexpensive

determination of every actioniv. Choosing a system of procedure

1. Models of Judicial Behaviora. Best judicial behavior occurs when the following are present

i. Judge only acts on the application of disputants (not own initiative)ii. Judge has no interest in outcome of the case

iii. Confines decisions to current issuesiv. Case has nothing to do with future disagreements (existing

controversy)v. Decides case only on evidence submitted by parties

vi. Each disputant is given equal opportunity to present their case2. Procedural Models

a. Adversarial Model i. Judge acts as an umpire and arbitrates disputes

1. This is the models closest to what we have in the U.S.ii. Arguments for the adversarial model:

1. judge’s personal opinion not involved2. impartial proceeding3. judge’s lack of knowledge on the issue is irrelevant

iii. Arguments against the adversarial model1. setting could be collaborative-all could work to enter

evidence2. one side may be advantaged with a better lawyer3. some cases are too complex and without judicial

intervention, the process would be too long4. the judge should try to know what’s going on so could

make the best decisions for unearthing the truthb. Investigative Model

i. Judge acts as a crusader

c. Managerial Modeli. Judge acts as a “fixer”

d. None of these models are stable in their pure formi. Our model is truly a mixture of all 3

e. E.g. case: Band’s Refuse v. Boroughi. In hearing, trial judge became too involved in investigative nature

of the proceedingsii. Served as an advocate for the prosecution (case became public in

nature)iii. Example of the incorrect model of the judiciary

1. He used the investigative model (judge as crusader)f. E.g. case: Kothe v. Smith

i. Judge wanted parties to negotiate a settlement and threatened to sanction the party that delayed the settlement. One party was sanctioned and appealed sanctions.

1. It’s okay to facilitate settlement, but not coercing it2. Rule 16 gives authorization for managerial system (judge

as fixer) to facilitate settlement without triala. This is a departure from the adversarial system

3. However, Rule 16 does not condone pressure tactics (as was used here)

C. Rewards and costs of litigationi. Potential relief

1. Prejudgment Seizures and due processa. First Steps

i. Ex. case: Fuentes v. Shevin1. state laws (FL, PA) allow seizure of a person’s

goods/chattel under a writ of replevin without giving the possessor the opportunity to challenge the action in a hearing (no due process)

2. The court held that even temporary deprivation of property violated the 14th amendment

3. Ct. would like to determine validity of claim before deprivation of property would occur

4. narrow holding; entailed major exceptionsii. When is prejudgment seizure sans a hearing acceptable?

1. seizure is necessary to secure governmental or public interest (taxes)

2. to meet the needs of a national war effort3. to protect against economic disaster (bank failure)4. to protect public against misbranded drugs/food

iii. Is pre-judgment seizure sans hearing okay?1. advantages

a. quick, cheap, efficientb. debtors don’t usually show up to contest

2. disadvantages

a. opportunity for abuse (debtor could have valid reason for withholding payment)

iv. Evaluation1. court is concerned about party’s ability to interfere with

another’s property without voluntary settlement or a final judgment; prioritized procedural justice

2. ct. also concerned with accuracy and the potential dire consequences to those who may have their property replevied

b. Retreat?i. Ex. case: Mitchell v. Grant (Louisiana)

1. There are some cases which court has held that prejudgment seizure is constitutional

a. in this instance, the facts were narrowly defined (if simpler issue, error rate diminished)

b. documentary proof was necessary (affidavit)c. there was an immediate hearingd. Mitchell did not overrule Fuentes

c. Reformulationi. Ex. case: Connecticut v. Doehr

1. ct. modified a 3-prong test from Matthews v. Eldridge to consider whether pre-judgment seizure is justified

a. consideration of private interest affected (person that will suffer the deprivation of the property)

b. examination of risk of erroneous deprivation through the procedures under attack (efficacy of alternatives)

c. principal attention to the interest of the party seeking prejudgment remedy (system, gov’t)

2. Post-judgment Remediesa. May be rewarded after a full trial or after final determination short of trial

(like summary judgment)i. Damages

1. Typesa. Compensatory-compensates for the injury caused

by defendant (makes plaintiff whole)b. Punitive-punish the defendant for extreme

wrongdoingc. Nominal-not substantial; just a formality to remedy

something bad that happened and is a signal that the actions will not be tolerated; can be a gateway to punitive damages

d. Presumed?2. Problems

a. Measurement

i. There’s no obvious standard (how do you quantify pain and suffering?)

b. Collectioni. Just b/c there’s a judgment doesn’t mean the

plaintiff will ever collectb. Other forms (before final judgment on the merits)

i. Preliminary Injunction (Rule 65(a))1. demand that the defendant do something or stop doing

something2. cannot be issued without notice to the adverse party and

can last indefinitelyii. Standard

1. strong likelihood of success on the merits2. irreparable harm should preliminary relief be denied3. balance of hardship favors the plaintiff4. issuing the injunction will advance the public interest

iii. Temporary Restraining Order (TRO) Rule 65(b)1. Operate like an injunction by demanding action from a

defendant2. may be granted without notice to the adverse party

a. it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition

3. cannot remain in effect for more than 10 daysc. Equitable Remedies

i. Injunction1. Court order to do or not to do something (used when

monetary damages are not sufficient)2. if violated, the defendant risks being in contempt of court3. Collateral Bar Rule

a. Precludes the defendant from challenging the validity of the injunction in the collateral contempt proceeding

b. Different b/c a person can violate a statute or order and argue about its validity later, after the fact

c. This rule sets injunctions at a higher priorityd. Penalty is severe (jail time) and shows the

difference b/t damages and injunctionsii. When to get an injunction:

1. when there is irreparable harm and inadequate remedy at law; ex. case Smith v. Western

2. creates more administrative duties for court and is an ongoing relationship –less discreet than a money judgment

3. there’s potential for the D to buy out the P

4. should be balance of hardshipsiii. Enforcing equitable decrees

1. Contempta. Criminal

i. Violation of court order can be prosecuted as a crime

ii. Not designed to compensate Piii. Right to a jury trialiv. Sanction based damages to the system and

societyb. Compensatory civil

i. Court directs D to pay P to compensate for damage done by the violation

ii. Interesting b/c money damages were deemed insufficient in the first place

c. Coercive civili. Impose penalty to enforce future compliance

ii. Severe penalties if D does not obey order3. Costs (especially attorney’s fees)

a. Financing Optionsi. Party pays their own (American way)

ii. Shift costs to the losing partyiii. Government pays (subsidized lawyers-crim. system)iv. Legal aid organizationsv. Pro bono work (charity)

vi. Public interest law firmsb. Fee arrangements

i. Fee-shiftingii. can pay by task, hour, result

iii. contingency fee system –if client recovers money, the atty. gets a percentage; ex. case Venegas v. Mitchell

1. although judge may decide appropriate atty. fees in civil rights cases, that doesn’t preclude the plaintiff from entering into a valid contract with his atty. to pay him more

4. Some alternatives to Litigationa. Alternative Dispute Resolution

i. Courts embrace settlement as a principal objective: Rule 16ii. Delegalize the system-parties come to own solution

iii. Deformalize the system-no so many procedural constraintsiv. Deprofessionalize the system-delawyerization

b. Third Party Intervention-Mediationi. Parties separately brainstorm to produce alternatives

ii. Legally binding if satisfy contract lawiii. Mediator writes agreement and parties signiv. Facilitates, but does not impose a judgmentv. Softer than arbitration, less of a departure from negotiation

c. Arbitrationi. Requires voluntary agreement

ii. More closely resembles litigationiii. Common in labor lawiv. Afterwards, parties retain the right to go to court if the outcome is

unsatisfactoryv. Arbiters not constrained by black letter law; have final word

d. Critiques of ADRi. Stifles evolution of law-certain case never goes before a judge

1. not really, most important cases will go before a judgeii. when reduce procedure, error costs may increase

iii. if there is an actual bad actor, the split of resources resulting in ADR may be unfair

II. Defining the Dispute A. Historical Evolution of Pleading

i. Common law, then code pleading1. Common law

a. Of largely historical interestb. The object was to formulate the issues for trial; isolate one pivotal issue

and decide the case on that issuec. Gave certainty and structure

2. Code Pleading; ex. Gillespie v. Goodyeara. Designed to reveal the underlying facts on which the claim restedb. Mandated one form of actionc. Complaint should contain a statement of facts constituting the cause of

action in ordinary languagei. Should not contain the conclusion of the accuser

d. Answer should contain a denial of each material allegation of the complaint (Rule 7a)

e. Demand more up front to provide more info to the parties (more specificity)

i. Allows D to plan a strategyii. Maybe the ct. can decide the case on the merits

iii. Can lock the P into a particular story or theoryiv. Limits the issues and scope of discovery

ii. Federal rules of Civil Procedure1. primary purpose is to give notice of the claim to the adversary, so that he may

make effective discovery requests and trial prepB. Modern Federal Practice and Rule 8: Plaintiff’s Claim

i. Rule 8(a)(2)1. requires that P provide a “short and plain statement of the claim showing that the

pleader is entitled to relief”2. 8a3: a demand for judgment for the relief the pleader seeks3. not much demanded, rules were intended to reduce the importance of pleading

and just give notification to D4. the complaint should show that the pleader is entitled to relief

5. from Conley, a claim insufficient only if the insufficiency appears from the pleading itself

ii. Specificity (and motion practice): ex. case Bd. Of Harbor Commissions and Conley1. Rule 12e-motion for a more definite statement- if granted, P will be required to

replead his complaint in a more specific manner. If denied, D must file responsive pleading (must be enough where defendant can draft answer and commence discovery)-this motion is usually restricted to pleadings that suffer unintelligibility, not lack of detail

2. Rule 12f-motion to strike-ct. may strike from any pleading any insufficient defense or any redundant, immaterial, or scandalous matter

3. Rule 12c-motion for judgment on the pleadings-judge can resolve case after close of pleadings-beware of putting too much in… can lead to summary judgment

4. Rule 12b6-motion to dismiss-complaint fails to meet the standards of rule 8; insufficient relief

iii. Consistency Requirement1. Rule 8(e)(2)

a. Doesn’t matter if there is inconsistencyb. Ex. case: McCormick: Dram shop case where intestate’s wife is suing the

other driver and the owner of the tavern where her husband was drinkingi. D moved for dismissal stating complaints were fatal contradictions

(against truck driver – free from contributory negligence; against tavern-DUI—can’t be both)

ii. Inconsistency is okay when the actual actor is not available (dead in this case)

iii. Trial of proof will determine truthiv. Strategy is good in that two defendants will go after each other

iv. Rule 111. 1993 amendment-sanctions discretionary, not mandatory, and safe-harbor for

withdrawal of groundless claims or defenses before sanctions were sought2. Rule 11(b)-requires certification by signing

a. Swear under oath that the info is correctb. Becomes admissible in trialc. Claim cannot be frivolous and not issued to harass or delay the adversary

(a lawyer that fails in this duty may be sanctioned)d. Attorneys have to research and bring real claim (amendment)

3. Other info under rule 11a. Obligations regarding investigationsb. What constitutes misconductc. Procedures for sanctions

4. sanctions; ex case. Zuk v. EPPIa. Zuk’s atty. failed to adequately research case and copyright lawb. Opposing party filed rule 11 sanctions; atty. appealedc. Main purpose of rule 11 is to deter, not compensate (11c2-money paid to

the court and only paid to the party to warrant effective deterrence)-this probably reduces the number of rule 11 motions b/c no monetary incentive

d. Discretionary with the court. The court does not have to impose sanctions

e. Look at the history of the atty. and the ability to payf. Also look at degree of frivolousnessg. Money sanctions are not encouraged, nor forbidden

i. Other sanctions: reprimand, continuing ed classes for lawyers

h. Offending party gets a 21-day safe harbor to withdraw or amend the offensive claim (not with the)

v. Legal sufficiency and rule 12(b)(6)1. if the moving party gives all facts and there’s no law to give relief under the

circumstances, Rule 12(b)(6) can be used to dismiss a claim very early in the process (no resolution of fact questions in this motion)-“failure to state a claim upon which relief can be granted” (no recovery possible under any legal theory)

a. where the pleadings raise a contested issue of material fact, this motion must be denied (only granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief

b. if granted, the plaintiff almost always has the opportunity to amend the pleading

c. if motion is granted, P will have to either amend without prejudice or appeal the decision (it’s a final judgment)

d. motion to dismiss is generally made before the defendant files his answer. After pleadings are complete, defendant can challenge the sufficiency of the complaint by a rule 12(c) motion for judgment on the pleadings.

vi. Heightened Specificity Requirements-Rule 9-special matters1. pleading requirements are generally liberal2. some instances in which more specificity is demanded3. notice of these is thought to be necessary in order for the opponent to be able to

prepare for trial-claims that the adversary may not be expecting unless his attention is specifically called to them:

a. fraud and mistakeb. condition of the mindc. denying performance of occurrence of conditions precedentd. special damage claims shall be specifically statede. ex. case Ross v. Robins

i. court claimed that claim was insufficient b/c alleged fraud and Rule 9b deems that complaints alleging fraud must be particular. P given the opportunity to replead.

C. Defendant’s Responsei. Under rule 12, D shall file an answer within 20 days after being served with complaint

(unless otherwise waived)1. if pre-answer motion is denied, D has 10 days from notification2. if pre-answer motion is granted, P can amend or suit will be dismissed3. if ct. grants 12(e) motion, D has 10 days from amended complaint

ii. Pre-answer motion options1. 12(b)(1)-ct. doesn’t have subject matter jurisdiction (any time, even after trial)2. 12(b)(2)-ct. lacks jurisdiction over defendant (before trial0

3. 12(b)(3)-ct. is not proper venue for suit (before trial)4. 12(b)(4-5)-method of serving process was incorrect (before trial)5. 12(b)(6)-challenges legal sufficiency of claim (any time)-made before D files

answer6. 12(b)(7)-suit can’t continue without necessary party (any time)7. 12(c)-motion for judgment on the pleadings-made after the defendant files

answer8. 12(e)-motion for more definite statement9. 12(f)-motion to strike10. 12(g)-if you make one motion, should raise all available defense in that motion

(consolidation)11. 12(h)- 12h1-four disfavored defenses (lack of jurisdiction over the person,

improper venue, insufficiency of process, or insufficiency of service of process) will be waived forever is omitted from a pre-answer motion or if no motion is made.

a. 12h2- 3 favored defenses (failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim) can be made in any pleading or by motion for judgments on the pleadings, or at trial on the merits

b. 12h3-most favored defense-lack of jurisdiction of subject matter-made be made at any time

iii. Failure to answer and default1. Default-Rule 55(c)-for good cause shown, the ct. may set aside an entry of default2. 55(a)-party has failed to plead or otherwise defend as provided by the rules, the

clerk shall enter the party’s defaulta. By clerk only when it is sum certain for judgment

3. Factors involved in setting aside default judgmenta. Whether the P will be prejudicedb. Whether the D has a meritorious defensec. Whether the culpable conduct of D led to the default (reckless disregard or

an intent to thwart judicial proceedings)4. cons

a. default judgment deprives client of day in courtb. should not be used to penalize atty (ex. case Shephard v. Darrah)

iv. Answer1. rule 8(b)-shall state in short, plain terms his defenses to each claim asserted and

shall admit or deny the averments on which the opposing party relies2. admissions and denials

a. obligationb. types of denials

i. Practical significance of an admission: has to be admissible and cannot be changed

ii. Practical significance of a denial: may have to go to trial b/c now there’s a contest

iii. Effect of failing to admit or deny: if not addressed, it’s considered an admission (similar to default) rule 8(d)

iv. Types of denials (Rule 8)1. General denial-deny everything in claim (almost never

appropriate)-only should be used in good faith2. I don’t know-deny knowledge or information; effect of a

full denial; effectively a denial (rule 8b)3. specific denial-denial may be made of all the allegations of

a specific paragraph or averment of the complaint-Can deny everything except for admission of specific facts

4. qualified denial-denial made of a particular portion of a particular allegation-Can admit certain components of an averment

5. may include affirmative defensesv. Restriction on denials (Ex. case David v, Crumpton)

1. Under rule 8(b)a. If the matter alleged in the averment was a matter of

record peculiarly within the control and knowledge of the D, an answer that D was without knowledge or information sufficient to form a belief did not constitute a denial.

3. affirmative defensesa. a defendant’s assertion raising new facts that, if true, will defeat P’s claim

even if allegations are truei. Rule 8(c) contains the 19 affirmative defenses (most important

ones: contributory negligence, fraud, res judicata, statute of limitations, and illegality)

b. Burden of pleading affirmative defensesi. Statutory language may determine

ii. Other policies1. policy2. fairness-evidence relating to it lies more in the control of

one party, which suggests the fairness in allocating it to him (usually these are issues within the defendant’s knowledge that the plaintiff would not expect)

3. probability-judicial estimate of the probabilities of the situation

c. Failure to plead an affirmative defensei. If not pleaded, the issue is not in the case, and evidence related to

that issue is not admissible at trial4. Counter claims (described under Rule 13)

a. Compulsory (13(a))i. Should be stated in the pleading if it arises out of the same

transaction or occurrence that is the subject matter of the adversary’s claim and no independent jurisdiction is necessary

1. penalty to state this claim is loss of the claim in future litigation (precluded through res judicata)

2. could amend original action under 13(f)

b. Permissive: 13bi. Any claim in the pleadings not arising out of the same transaction

or occurrence as the adversary’s claim; independent jurisdictional grounds required

c. Omittedi. When pleader fails to bring up counter claim, the claimant may by

leave of court set up claim by amendmentd. What is standard for same “transaction or occurrence?” (Wigglesworth-

review for state issues?)i. Same evidence standard

1. if the same evidence is used in both claims, the counter claim is compulsory

2. if different evidence is used, the counter claim is permissive

ii. same issueiii. logical relation b/t the claims?

1. if the counterclaim would not have arisen but for the events which gave rise to the main claim (or vice versa), there is probably a logical relation

D. Voluntary Dismissal by Plaintiff (Rule 41a) (Defendant as counterclaims)i. Consequences (with or without prejudice)

1. dismissal with prejudicea. the P can’t come back to the same court with the same lawsuit

2. dismissal without prejudicea. the P CAN come back to the same court with the same lawsuit

ii. Motives1. P may want to dismiss and file in another court or file again

a. Another forum may be more favorable or current judge seems prejudiced2. may want to avoid rule 11 sanctions

a. dismissal does not prevent the court from filing sanctions3. Under rule 41(a)(1): dismissal should be limited to early stages of litigation before

an entry of summary judgmenta. May not be allowed if merits of case area already knownb. Once filed, may not amend or withdraw

i. Exception, rule 60b-mistakes and justifications for release from judgment

ii. Court can order P to pay D’s atty. fees (goes against American rule, but is a deterrence)

E. Amendments to Pleadingsi. Permission to Amend

1. Allowed b/c attorneys are often under time pressures2. amendment as of right- a pleading may be amended once as a matter of course

without leave of court (#4)3. Under Rule 154. party may amend any time before a responsive pleading is served or within 20

days after it is served

5. otherwise, can only amend with permission from court or written consent from adverse party

6. shall be freely given if justice so requires7. ex. case: David v. Crumtpon revisited

a. Fed. rules are liberal towards amendments (if refuse amendment, you’re omitting some facts)

b. Ct. can deny amendment if adversary will be prejudiced (such as statute of limitations will run out)

8. In this case, used relation back principlea. Extended statute of limitations by treating the amended complaint like it

was the original complaintii. Relation Bank

1. Governed by Rule 15(c)a. Used to accommodate actions where a new party was added in suit and the

statute of limitations has expiredb. Also can be amended complaint (15c2)c. Three requirements for amendment:

i. Claim asserted in amended pleading must have arisen from the same transaction set forth in the original pleading

ii. New D must have known about suit before statute of limitations ran out

iii. The new D should have known that he should have been a party in the suit except for a mistake regarding the proper party

III. Discovery A. Modern Policy and Rule 26

i. There’s increased pre-trial disclosure1. rule 26a

a. mandates certain disclosures up front before formal discovery beginsb. however, no obligation to reveal information that would be detrimental to

your case2. rule 26b

a. scope of discovery-broad as an initial matter, references specific limitations

3. 26ca. Protective orders- certain info may be shielded

4. 26da. Timing and sequence-flexible (discovery cannot occur until after the

discovery conference)5. 26e

a. Requiring parties to supplement or amend discovery6. 26f

a. Conference and planning of discovery7. 26g

a. Sanctions provision-no safe harbor in this matter8. rules 27-35 provide tools the parties may use to obtain info

B. Discovery Devices

i. Document Inspection1. Rule 342. Permits parties to demand an opportunity to inspect and copy documents and

other tangible things possessed by other partiesa. Rule 34(b): requires that docs either by produced as they are kept by the

producing party, or grouped according to the specifications of the request3. If party wants docs from a non-party, a subpoena is necessary (Rule 45)

ii. Interrogatories (not very useful)1. Rule 332. permits any party to send a question to another party that must be answered under

oatha. too susceptible to abuseb. long answers that revel very littlec. helpful in identifying witnesses and discovering the location of docs or

evidenceiii. Depositions: rule 30

1. Permits the questioner to compel the witness to answer questions spontaneously and allows the interrogating party to follow up on the answers with further questions.

a. Intense preparation requiredb. Most expensive form of discoveryc. There’s a numerical limit to 10 per side: 30 a2ad. Limited to one day, 7 hrs (30d)e. Witness atty. can object to questions

iv. Physical or mental examinations1. only discovery tool that requires court’s approval

a. Rule 35a: when mental or physical condition of a party is in controversy, a court may order the person to submit to an examination by a suitably licensed or certified examiner

b. Good cause for examinations have to be shownC. Scope of Discovery

i. Basic Concepts1. Discovery is limited by relevance and privileges: Rule 26(b)(2)2. ct may limit the scope of discovery according to the case (ex. Davis v. Ross)3. Discovery is also limited by the burden and weighing of that burden on what’s at

stake in the case (26biii)4. burden protected by rules 26b and c

a. 26c: protective orders-the ct. may make any order which justice requires to protect a person or party from undue expense

ii. Some exceptions from discovery1. attorney work product (hickman) (authority given by US Supreme Ct.)

a. two typesi. materials produced by an atty. (memoranda)

ii. mental impressions of an atty.b. justifications for restricting work product

i. akin to theft of labor

ii. less incentive for atty. to go through with the process iii. atty. won’t write down notes that make sense

c. objections to restrictioni. truth and deception: the whole story may never come out

ii. atty. can keep secretsd. 26b3 in trial preparation materials covers this e. attorney work product immunity is absolute and qualified

i. mental impressions of a lawyer are almost absolutely immune and would be very difficult to overcome

1. –grave dangers of inaccuracy and untrustworthinessii. all written docs prepared for trial may be overcome with a strong

showing that the opposing party has a substantial need for the materials and would not be able to get the information elsewhere.

2. attorney-client privilege (Upjohn)a. requirements for asserting atty-client privilege

i. where legal advice of any kind if soughtii. from a professional legal advisor in his capacity

iii. the communications relating to that purposeiv. made in confidencev. by the client

vi. are at this instance permanently protectedvii. from disclosure by himself or by his legal advisor

b. objectivei. to promote full client disclosure to the atty.

c. Compare work-product and atty-client privilegei. Work product is what the atty. produced

ii. Atty. client privilege protects communication b/t the client and counsel

1. if 3rd overhears conversation, privilege can be waived-this is the only way to get around the privilege

iii. in work product, the adversary can make a good showing as to why they should see the work product

iv. there’s no way to overcome the atty. client privilegeIV. Summary Judgment

A. Basic Concepts and Rule 56i. If one party can show that there is no genuine issue of material fact, the case can be won

without going to trial1. movant has to show that the disputed factual issues presented in the pleadings are

illusory by showing;a. affidavits

i. must state matters that would be admissible at trial 56eb. discovery materials

i. depositions, interrogatory answers from either side 56eii. Rule 56 motions

1. cf. rule 12(b)(6)-difference b/t SJ and judgment on the pleadinga. SJ takes more evidence into account, it occurs after discovery

b. Rule 12 challenges the legal sufficiency of the claim. Rule 56 challenges the party’s ability to prove the claim

2. timinga. SJ occurs later on in the litigation process. Dismissal occurs after the

complaint and before the answer or after the pleadings are closed.b. P can only file after 20 days from the commencement of the actionc. D can move at any time

B. The Moving Party’s Taski. Burden of Proof

1. Productiona. Movant bears the initial burden of production on that issue—the burden of

coming forward with info that clearly establishes that there is no factual dispute regarding the matter upon which SJ is sought (must prove that a reasonable fact-finder could not find for the party on that element)

b. Production Burden: unless the party who has this burden presents sufficient evidence to justify a verdict in his favor, the judge will take the case out of the hands of the jury-to get to the jury, this party must present enough evidence that a reasonable fact finder could find for him

i. May shift from party to party. If the party with the burden presents enough evidence that the fact finder must find for him, then the burden shifts to the opposing party. To prevent SJ, that party must then present enough evidence so that reasonable fact finder could find for him. I he doesn’t meet the evidence, SJ will granted. If he does, the case will go to the jury.

c. In situations where the responding party bears the burden of persuasion, he may be entitled to show that the existing record contains no evidence that the other side will be able to prove an essential element in the case (ex. Celotex)

d. The opposing party may also submit affidavits and other materials (same standard as materials for the movant). The non-movant cannot rest on the pleading counter the moving party’s evidence.

C. The Nonmoving Party’s task

i. Sources-What are the sources that the court can use to decide SJ?

1. Discovery already on file (pleadings are useful b/c they define the boundaries of the dispute

2. affidavits should be considered (any party attesting to certain facts under oath)

3. All evidence does not have to be in a form that is admissible at trial

ii. Standard

1. There has to be a genuine dispute of fact to avoid SJ

2. If there is the slightest doubt of whether something is true or not, it should to go trial and let the jury decide

a. SJ can’t be decided on credibility

V. Pretrial Conferences and Settlement Promotion

A. Pretrial conference basics and Rule 16

i. General Objectives of Rule 16a and pretrial conference-simplify or formulate issues and facilitate settlement

ii. Types of Pretrial conferences

1. Scheduling and Planning (order)-some exemptions to specific courts and jurisdictions (16b)-sets a time limit for joinder of additional parties, amendment of the pleadings, filings of motions, and completion of discovery

2. Final pretrial-purpose is to avoid surprises at trial; basically to script trial-by this point all discovery is done and the pleadings are set

3. Settlement-Rule 16c9 and 16a5

B. Enforcement and Inherent Authority (ex. Heileman v. Joseph Oat)-who has to show up at the pretrial conference? Refer to the rule

i. Rule 16 authority-no explicit authority within the rule. Ct. uses 16a regarding who they can demand to attend a pretrial conference (liberal understanding-lots of dissent)

1. Sanctions (16f)- if a party or lawyer fails to participate in pre trial conf. or in “good faith”, or comply with scheduling order, the judge may apply sanction

ii. Inherent authority- The Rules of Civil Procedure do not limit the court-we should look to the purpose of the rule. The purpose can fill in gaps of the text. Purpose can be used to reconcile rules or push beyond text; downside-this is very unpredictable

VI. Appeals before Final Judgment

A. The value of appellate review

i. Why have appeals?

1. trial judge has limited perspective and opportunity to reflect (also pride and vain)

2. review from remote court offers objective supervision

3. interest in preserving appearance of justice for litigants

4. legitimizes decisions in lower courts

ii. Should the right be extended to all cases?

1. in many jurisdictions, appeal as of right only granted to intermediate court

2. the right to appeal is derived from statute or court rule

B. Timing and Appealability

i. The final decision and the collateral order doctrine

1. all decisions granting or denying requests for injunctions are immediately appealable

2. §1291: the courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts

a. Final decision: judgment that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment

3. §1292a: enumerates interlocutory orders that may be appealed as of right, even though they are not final decisions (not appealable on the mere ground that they are erroneous)

a. Orders with injunctions are immediately appealable

b. Orders with receiverships

c. Rights and liabilities in admiralty cases

4. §1292(b): permits federal district courts to certify certain questions to the court of appeals and grants the appeals court the discretion to review the relevant order

a. Intended for difficult questions of law

5. Rule 54(b): permits district courts to facilitate appeals by entering final judgment with respect to only some parties or claims

6. writ of mandamus: practical effect of an interlocutory reversal (§1651)

a. an extraordinary remedy and may not be used to substitute for the ordinary process of error correction through appeals after final judgment

7. litigant’s right to seek appellate review is the norm

8. contested is the proper time of appellate court intervention

a. Controversy as to whether the appeals court should wait until all final judgments are made at the trial level, or should they intervene earlier for a more cost effective outcome

b. Collateral Order Doctrine- entitles a party to appeal from a narrow class of decisions that do not terminate the litigation, but must be treated as final.

i. Includes those decisions that: 1)are conclusive of the disputed questions; 2)that resolve important questions completely separate from the merits; 3)that would render such important questions unreviewable on appeal from final judgment in the underlying action (ex case Firestone v. Risjord)

VII. The Trial

A. Trial Phases: FILL IN??

B. Jury Trial Rights-7th amendment of the Constitution

i. 7th amendment provides: circumstances under which a litigant has a right to a jury trial and controls the court may impose upon a jury in a case in which the right is guaranteed

ii. Does not confer the right to a jury trial in equitable actions

iii. The party has to claim the jury trial in writing no later than 10 days after service of the last pleading directed to the issue (Rule 38b)

1. OR can amend pleading (15a)

2. OR at court’s discretion (39b)

C. Beyond history to Pragmatism?

i. Historically, jury trial used as a check on federal judges’ power

ii. Support: brings common sense to the facts and laws (jury nullification), not binding precedent, preserves the dignity of the bench, jurors become educated, makes the law intelligible, makes system look more credible (peers trying peers)

iii. Against: causes delay, juror incompetence, juror prejudice

iv. How to decide who gets a jury trial

1. Historical test: any new actions at law after 1791 is not covered by the 7th amendment, therefore there is no entitlement to a jury trial for that hearing

a. The legal nature of a claim is to be determined by considering:

i. The origins to the claim prior to the merger of law and equity

ii. The remedy sought

iii. The practical abilities and limitations of juries

2. By Policy: What would the jury be best at?

a. Accuracy/right or competent (jurors won’t understand what’s going on and won’t follow instructions)

b. Bulwark against gov’t tyranny or bias (whether or not they understand, they will only react with their own standards of justice)

c. Ex. case Ross v. Bernhard: ct. had pro-jury title. There was no way that this passed the historical test (there were no shareholder’s derivative suits in 1791)-could only be brought in equity—greater emphasis give to the remedy sought, that is why historically equitable issues could go to a jury trial (money damages)-history, remedy, complexity for a jury (footnote 10)

As our cases indicate, the "legal" nature of an issue is determined by considering, first,the pre-merger custom with reference to such questions; second, the remedy sought;and, third, the practical abilities and limitations of juries.

d. Above is footnote from Ross v. Berhard)

3. Retrenchment (ex .case Curtis)

a. In a housing discrimination suit, the jury trial is denied b/c it didn’t pass the historical test (didn’t accept the 3rd part of the test)

4. Determination of Relief Requested? (ex. Tull and Terry)

a. In Tull, majority thought that the remedy was a punishment and retribution, not about maintaining the status quo-this means that it’s a civil penalty which meant that it was legal, which meant there was a jury trial right (but jury does not get to determine the amt. of damages-7th amendment silent on this issue)

b. In Terry, court examined both the legal issue and the remedy sought and parsed on both. In the remedy sought, it determined that since the backpay was coming from the union and not the employer for breach of contract, it was punishment and therefore civil penalty, and therefore legal. They had both legal and equitable claims, but the remedy is legal

D. Judge’s Control of the Jury’s verdict (Galloway)-does not limit inherent authority

i. Judgment as a mater of law (Rule 50)

ii. May be made any time before submission of the case to the jury. (can also be renewed after jury’s verdict up until 10 days of entry of final judgment)

1. after a party has been fully heard on an issue and no reasonable fact-finder could find for that party, the judge can grant a motion for judgment as a matter of law

a. May be done at any time before submission of a case to a jury and can be renewed after the jury’s verdict (directed verdict, NOV)

i. Very similar to a delayed summary judgment

2. Dilemma

a. If judge grants JMOL before the trial goes to the jury, there’s the danger of the appellate court reversing his ruling and the case would have to be tried before a jury all over again

b. If judge reserves judgment for after the jury and the verdict is against the movant, the judge can grant JMOL for the movant. If the case is reversed on appeal, the case will not have to be tried again, b/c it has already been tried.

iii. New trial: do over in whole or in part (R59)

1. Timely motion?

a. Must be filed no later than 10 days after entry of final judgment

2. Proper grounds?

a. Judicial error

i. Judge recognizes own errors, especially in jury trials where errors may have tainted the jury

b. Prejudicial conduct by party, witness or counsel

c. Jury misconduct

d. Jury’s verdict is against the clear weight of the evidence

i. May grant new trial motion even though there may e substantial evidence which would prevent judgment as a matter of law

ii. Judge may not substitute her own judgment for that of the jury on matters of credibility (not enough that the judge merely disagrees with the verdict and would vote otherwise if she were a juror)

e. For a jury trial

i. For any of the reasons for which new trials have heretofore been granted in actions at law (R59a1)

f. For a non-jury trial

i. For any reasons an equity court would have granted rehearing (r59a2)

3. Harmless error

a. A new trial is not granted unless refusal to do so appears inconsistent with substantial justice

b. Court should disregard error in the proceeding that did not affect the substantial rights of the parties (R61)

c. or judge’s clear abuse of discretion

d. Other grounds R61

e. Judge can enter on his own without motion4. An order for a new trial is not appealable b/c it is not a final judgment (however,

it is reviewable)

iv. Review of orders granting or denying a new trial

1. Errors of law

a. New trial granted: when the granting of a new trial is an error of law, the appeals court may reverse the new trial order, and order the original verdict reinstated

b. New trial denied: when the denial of a new trial is an error of law, the appeals court may order a new trial.

2. Errors of Fact (excessiveness of the verdict, verdict against the clear weight of evidence)

a. Trial judge’s discretion

i. Not substitution of judgment: the appeals ct. may not reverse simply because it would have decided the motion for new trial differently

b. Abuse of discretion

i. If trial judge’s error in granting or denying the new trial egregious, it may be reversed on the evidence

v. JMOL and new trial combinations (50 b-d)

1. motion for JMOL may be joined with new trial motion (50b)

a. If the JMOL motion is granted the judge must rule conditionally on the new trial motion. If the JM: is reversed on appeals, the new trial will occur automatically unless the appeals court specifies otherwise. (50c1)

b. If the trial judge denies the new trial motion, the original verdict is reinstated when the grant for JMOL is overturned on appeal

2. If both motions are made, there are 4 possible responses with different possibilities on appeal

a. Both motions denied: The appeals court can either order JMOL or a new trial. However, JMOL is never granted when there is substantial evidence in favor for the verdict winner. More latitude offered if basis of attack is an error of law

b. JMOL granted, new trial denied: the verdict winner may appeal. Appeals court may either reinstate the verdict or order a new trial (50c1)

c. JMOL granted, new trial granted: verdict winner may appeal. If JMOL is reversed, new trial order almost always stands.

d. JMOL denied, new trial granted: no final judgment, no appeal.