Incentives to Litigate:

Litigation facts:
98% of civil litigation is in state courts
3/5 traffic/ordinance violations
because most traffic related most are in state courts because states maintain
roadways. Only way fed court would hear a traffic case if it is a diversity case (no
SMJ over traffic related issues)
out of non-traffic cases:
41% civil lawsuits; 39% criminal
amout of civil litigation is positively correlated w/ ppl & ecnomic activity.
Ks most common form of civil lawsuits
Trial facts:
Torts 2/3rd of civil trials (even though less than half of the filings)
Most K cases tried to judge (about 18 months till judgment)
62% of the time plaintiff wins
Most tort cases tried to jury (about 22 months till judgment)
49% of time plaintiff wins
plaintiffs recover 7-figure sums in less than 5% of cases
Most civil cases end before trial.
BUT many will end with a judicial decision (sufficiency of pleadings, discovery
issues, SJ -- even though there is no trial).
These rulings are case-ending (dispositive) in about 1/3 of cases.
Contemporary litigation mainly is the pretrial process.
Most cases end in ambiguous manner => settlement or abandoment.
Important relationship between:
<= Incentives to litigate =><= costs of litigation => <= merits of the claim =>
Why Litigate?
Litigation can offer two remedies:
Specific remedies: those that replace directly what the plaintiff lost
Subsitutionary remedies: reasonable substitute for what the plaintiff lost
*majority of remedies since most ppl seek money damages.
Substitutional Remedies:
Some probs with substitutional remedies:
Difficult to put a price on non-economic damages (usually 3xs economic for pain &
suffering)
Easier to ascertain damages when there is market for it.
Solutions to difficulty in calculating compensatory damages:
Contractual - agree to liquidated damages for breach of K (can only do this if it
would be difficult to calculate actual damages)
Statutory damages (fixed prices for actual damages; or sets min/max)
Punitive damages: because goal is to punish the wrongdoer in some juris can introduce
evidence on Ds net worth -- in order to gauge the punishment amt accodingly.

 These are rare - only in 6% of cases that go to judgment with median award $50,000.
Punitives & State Farm: excessive punitive damages can be a violation of due process
(unlaw taking of ones ppty):
Punitive damages goals of retribution and deterrence (similar to criminal law) but in
the civil law context Ds dont have the same protections - and this is a concern...
SC suggests punitives should be in a single-digit ratio to compensatory damages.
But for extremely egregious conduct can be more.
Also if low compen damages may be more; conversely if high compen may be less.
Interesting note, in this particular case, the court was concerned that the punitivies were
based on out-of-state conduct which court said effectively punished D for conduct
outside of the states juris.
Court notes that a Ds great wealth cannot justify an otherwise unconstitutional
punitive damages award
For the juris that allow evidence of wealth, many lawyers say this is a powerful tool.
Implications => while not a bright line rule, this may make some juries award in the
outer limits of the single-digit ratio when maybe they would have done less.
i.e. if prosecution urges this as a multiples - compen damages x 9 (note current stats
show median amounts usually 1:1)
makes puntivies not as scary for Ds - provides more certainty, perhaps greater
bargaining power.
May call for greater proof/support of compensatory damages since that establishes
the baseline for punitives.
Note that a high proportion of damage awards comes in a very small number of trials.
State Farm may be powerful in reducing the very occasional but very high awards.
Because even one really out of proportion award can count for a number of awards
by nine (counters arg that would increase punitive damage awards)
Guidelines:
Substantive DP (the ends): 9:1 presumptive maximum
Procedural DP (the means): Appellate review -- ensure punitives based on
application of law rather than decisionmakers caprice.
Takeaway: State Farm makes puntives a constitutional issue because possible
substantive due process violation (i.e. not that something was done wrong, but that you
just cant do this) In effect, makes every case in the US subject to the due process
clause of the const (relationship to fed SMJ?)
Specific Remedies:
Specific performance = make party perform obligation
Ejectment = order for removal
Replevin = act to recover personal ppty
Injunctions = court orders commanding a part y to do or stop doing something (can be
narrow specific).
** injunction is like a tailor made criminal statute (prohibits specific behavior by a
particular person). Enforceable by contempt (party an be fined, or put to jail until
she complies) - p. 253

e.g.s. restraining order, school desegregation, etc.

Mandamus = order from appellate court to lower court to do something.
Habeas corpus = order to someone keeping another person in custoy as to explain why
holding him, or let him go (usually child custody context).
Some think that legal remedies are preferred to equitable remedies (may require party
to show something more to get equitable remedy).
To get equitable remedy (usually injuction) some courts require that the legal remedy is
inadequate, or in other words, Ps harm is irreparable (money damages will not be
adequate)

Sigma Chemical v. Harris (p. 255)

D worked for P, in his K said he wouldnt work for a competitor for 2 yrs after leaving
and would not disclose trade secreets.
Issue: whether granting permanent injuctive relief is appropriate
Test: two factors: inadequacy of legal remedy & balance hardships of two parties
if injunction is granted
End result after appeal: D could work for competitor, but not in position where his
knowledge of Ps company was to be utiliziced, and could not divulge trade secrets.
Note that this could be potentially difficult to enforce, (hard to prove hes vioalating
it) - relatedly it would be difficult to ascertain damages for what D has already done
(i.e. what he may have already told).
Note, cases seeking solely equitable relief are tried by JUDGES.
Strategy with choosing desired remedy if desire or dont want a bench trial.

Legal

Equitable

Specific
Replevin
Ejectement
Mandamus
Habeus
Injuction
Reformation
Rescission
Quiet title

Substitutionary
Damages

Clean up
Accounting of the D
Consructive trust

Declaratory Relief: [not discussed in lec; but confusing!]

2201 & 2202 establish that a party can seek a declaration of their rights without
seeking relief (like damages or injunction).
Rule 57 says decl judgment done according to the Rules, and the right to trial by jury
may be appropriate. Doesnt matter if there is another adequate remedy.
Court may offer a speedy hearing (advance on the calendar)
Does not involve hypothetical questions, must be an actual controversy (though diff is
of degree).
Note, decl relief can raise juris probs.
Well-pleaded complaint rule vs. requirements of fed juris.

 Because decl relief does not fit well with idea of well pleaded complaint rule.
Revisit p. 258
Nonjuris issue: unclear who bears the burden of production and burden of persuasion.
PAYING FOR LITIGATION
Disputes about facts are more expensive than disputes about the law.
Largely because of costs for discovery, experts.
In American system, parties pay their own costs (contrast with English system where
loser pays all). This enables ppl to bring less than certain claims - becaues not as much
of a risk.
Plaintiffs (contingent fee; by party, fee shifting by K or by statute, public funded)
Defendants (insurance, by party, public funded)
Attny fees are usually done by hour (contract cases) flat fee (predictable work), or
contingent fee (tort cases).
Note, contigent fee system only makes sense when there are DAMAGES.
Each has its pitfalls.
Hourly - attny may spend more time than necessary on the case.
Contingent fee - attny will screen cases diff, has interest in minimizing the number
of unsuccessful clients, and will have incentive to maximimize her profit with
regards to all her cases (two ways: large inventory of cases with varying merit;
small inventory of carefully screened cases).
Cost spreading: contigent fees and insurance disperses costs of any one lawsuit to a
group of litigants; public subsidies spread costs to everyone.
The system leaves two main groups wihout access to representation:
Ppl with small claims
Ppl seeking non-monetary relief in non-fee shift cases
(holdover tenants, divorce/child custody, domestic - e.g. restraining order)
Ppl who wont get sued:
Judgment proof parties; insolvent defendants
Ppl who are uninsured who will still end up getting sued
divorce/custody; holdover tenants
For ppl without $ publicly funded legal help is available
Brings up interesting issue -- of publicly funded lawyers bringing suit questioning
existing political order (some legis prohibits such lawywers from suting state/local
govs)
Pro bono work (avoids some restrictions on ability to sue gov)
Organizations with agenda for social change
Note, that every lawsuit receives some public subsidy (e.g. salaries for judges,
electricity, etc)
Trials are most expensive
Fee shifting:
Rules provides for some cost shifting:

Rule 54 allows court to make losing party pay court costs; attny fees can be granted
if made by motion.
1920 provides the costs that a court can tax: mainly adminstrative costs (printing,
paying for court reporter, fees for witnesses, docket fees, etc) - a bill of these costs
are filed with ease case, and can be included in the judgment.
Fee shifting statutes (started with civil rights to encourage ppl to bring suit)
Common funds for things like class actions: requires all who benefit from a judgment
to share the costs. Similarly situated ppl share costs rather than shfiting them to the
opposing party.
By K -- parties may have K tthat if litigation happens, loser pays winners legal ffees.
Malicious prosecution => can result in attny fees for D.
By statute: fed & state statutes shift fees in certain categories of cases.
Usually matters in the public interest.
Most imp civil rights:
42 USC 1988(b): court may allow prevailing aparty , other than the US to
recover reasonable attny fees.
prevailing party has brought up some questions
SC decided ONLY applies to prevailing plaintiffs, not Ds due to legis intent to
encourage ppl to bring such suits. Exception is that D could recover for malicious
prosecution.
does not prevent parties from negotiating a fee waiver (Jeff D)
does not include recovery for fees if D voluntary changes conduct due to the lawsuit
(Buchannon Board)
note these limitations on what is a prevailing party can potentially hinder access to
representation (lawyers refusing to take claim) and may make let D escape statutory
obligation (by voluntarily changing) but SC has considered these on the whole and
determined they do not go against legis intent for fee shifting and such harms are
largely speculative/marginal.
Court noted that voluntary change ending suit only occurs in equitable relief, not
suit for damages.
Civil litigation: 28 USC 2412(d)(1)(A): allows courts to award fees to party
prevailing against the US, unless the govs position was substantially justified or statute
prohibits it.

Evans v. Jeff D
Class action suit for disable children, D offered genereous settlement that gave P what
it asked for BUT added a waiver of attny fees.
Ps lawyer instructed to accept, but then contested the waiver.
Rule 23(e) requires courts to approve terms of any settlement of a class action - said
that this provision was an ethical breach.
SC disagreed, said waiver was okay.
Legis did not intent to prevent negotatied waive of fees
Fees Act was a powerful tool for plaintiffs, may have motivated Ds generous offer,
but preventing such negotiation was not w/in purpose of the Fees Act.
SC disagreed with Ps claim that he faced an ethical delimma.

 Ethically by professional rules of conduct he has duty to represent his clients w/out
regards to his own interests (thus this was not an ethical delimma).
Ps delimma was allocated scarce resource: what he could for this client versus what
the org can do for other clients (this was expensive case - relied on fee shifting to
pay for this suit and funding for other cases)
Model Rules of Professional Responsibility indicate that laywer may refuse to
represent a client if it will materiall limit laywers responsibilty to another client or
his own interests.
Note, Legal Aid is funded by the state (defendant) - perhaps message dont bite
the hand that feeds you - though SC says no evidence showing this...
Solutions?
Perhaps could have had clients sign agreement that they would not accept a
settlement w/out attny fees (big debate in PI realm)
Buckhannon Board & Care Home, Inc. (p. 277):
Ps bought suit against state for care home regulation that required resisdents to be able
to get out of burning buildings unassisted as against FHA and ADA.
i.e. plaintiff questioned the validity of a state regulation
State enacted 2 bills eliminating the regulation => court dismissed case as moot.
P wanted attny fees under catalyst theory -- lawsuit brought about a voluntary change
in Ds conduct.
SC this only applies to judicially sanctioned change in the legal relationship of the
parties
Prevailing parties included: judgment on the merits, settlement agreements enforced
through consent decree.
Note, in this case once state voluntary changed the case was moot because sought
injunctive relief, no damages.
After Buchannon plainitffs may want to make sure the case wont go moot if state
voluntary complies by suing for damages too (costs incurred for complying w/
regulation)
This decision encourages defendants to throw the towel in early -- and change on
their own -- SC notes that this desirable because makes the system more efficient (i.e.
case where D appears to be losing - strong on one side - resolved leaves resources for
heavily contest cases for court to sort through)
IMPLICATIONS OF HOW LIGITATION IS PAID FOR
Financing effects WHAT gets litigated
Ppl need to be able to finance the litigation, attnys need incentive to take cases.
Fee shifting statues make litigation more likely in areas where ability to pay/incentive
to take is missing.
possible ways for defendant to get out of having to pay fees:
negotating settlement with fee waiver
case w/ no damages -- voluntary changing (avoiding judicially sanctioned change)
PROVISIONAL REMEDIES

 provisional remedies = relief pending final adjudication of the dispute

granted or denied befor the case has been heard on the merits, thus based on
incomplete info.
How should a court decide whether to grant relief?
When does curtailment of the regular procedures amount to denial of due process?
Delimma = not granting prompt relief resulting in plaintiffs loss that no later remedy
can restore vs. defendants loss of his rights that no later remedy can restore.
Relief from top to bottom:
Final injunctive relief (after trial)
Preliminary injuction (after hearing, before trial)
Temporary restraining order (TRO) (pending hearing on prelim injunction)
Ex parte TRO (w/out notice) given in instances where there is a serious threat of
injury if notice is given (e.g. domestic violence) or when no time to schedule
hearing (e.g. endangered species just found in area to be demolished)
Note, TRO is injunctive equivalent of a seizure without a hearing (p. 292)
Rules at work:
1292(a)(1) establishes that a plaintiff can appeal from an interlocutory order...
granting, continuing, modifying, refusing or dissolving injuctions, or refusing to
dissolve or modify injunctions -- preliminary injunctions are injunctions here
this is an exception to appeals can only be made after final judgments ( 1291)
Rule 65:
65(a): allows for possibility to push the actual trial up after request for prelim
injunction.
65(b): temporary restraining order may be granted WITHOUT NOTICE (written or
oral to adverse party/attny) only if:
specific facts show applicant will suffer immediate and irreparable injury before
adverse party can be heard.
applicant's attny certifies in writing the reasons why notice should not be required.
once granted, hearing is set for earliest possible time and given priority.
at hearing the applicant will proceed with request for prelim injunction or TRO is
dissolved.
informal notice, which may be given to the attny rather than the adverse party is
preferred to no notice at all.
65(c): Applicant seeking provisional remedy must post bond, such that if the adverse
party ends up prevailing it can recover this amount.
Implications:
Decisions on preliminary injuctions as a practial matter, will usually end case.
Other parties besides the two involved in litigation can be affected by erroneously
granted injunctions (e.g. in William if injunction had been erroneously granted - all
ppl who had to buy bread at higher price).
Tension between urgent need for action v. ensuring parties get due process
William Inglis & Sons Baking (p. 282):
P sought prelim injuction and was denied.

 Under 1292(a)(1) appealed this order.

Appeals court examind for whether: erroenous legal premise or abuse in discretion
Determined abuse in discretion:
Trail court had applied test:
P will suffer irreparable injury if not granted; P will probably prevail; D not
harmed more than P will be helped; granting is in the public interest.
But did not apply the alternative test:
If harm to P is sufficiently serious => only need to be fair chance of success on the
merits.
This effectively makes it so if hardship is especially great softens requirement of
how likely he is to prevail.
Provisional Remedies & Due Process:
Two kinds of due process:
Substantive due process: some things you just cant do (Campbell)
Procedrual due process: must follow certain procedures (Fuentes)
Fuentes v Shevin (p. 286)
At issue: state laws authorizing the summary seizure of ppty under a replevin claim
upon application of person claiming right to the ppty and posting bond.
does not require notice to possessor of the ppty
does not provide possessor an opptny to challenge the seizure at a prior hearing
under 14th because state official doing the seizing (need more than just it being state
law)
Due process requires that a person be given the right to notice and an opptny to be
heard in a meaningful time and in a meaningful manner
SC for notice and opptny to serve its full purpose must be granted when the
deprivation can still be prevented.
Due process allows some flexibility in the form of the hearing according to the
nature of the case.
BUT whatever its form hearing needs to be before deprivation unless
EXTRAORDINARY situtions where gov interest justifies the postponment.
Really where gov initizes seuizure that is directly necessary to secure an imp
governmental or general public interest (e.g. seizure for national war effort)
SC said any significant taking of ppty violated dpc even if temporary.
Length/severity of deprivation factor for considering appropriate form of hearing,
but does not justify denial to a prior hearing of SOME kind.
Laws unconstitutional because they deny the possessors right to a prior opptny to be
heard before ppty is taken.
Issue now is what type of hearing is sufficient to establish the opptny to be heard?
After Fuentes:
SC has stated factor test for whether fundamental requirement of due process -- the
opptny to be heard at a meaningful time in a meaningful manner -- has been met:
1) private interest affected by the official action; 2) risk of errorenous deprivation of
such interest through the procedures used, and probable value, if any, of

additonal/substitute procedural safeguards; 3) the govs interest in the function

involved and the fiscal/admininstrative burdens that the additional/substitute
procedural requirements would entail.
Applied:
Police tows car w/out hearing:
1) can say big ppty interest; 2) unlikely additonal process will prevent errors either legally parked or not; 3) extreme financial and adminstrative burden.
Battered spouse seeks ex parte TRO:
1) feedom of movement/association pretty big; 2) significant possibility that a
hearing would uncover a mistake or sort things out; 3) HUGE gov interest in
preventing violence.
#3 overwhelms the other factors. Courts usually grant ex parte TROs with short
delay for hearing (3 days).
PLEADING
transformed over time... from:
formulas of the writs at issue (excessively cursory)
facts of the cause of action (excessively detailed - just the facts)
some states still go by this e.g. statement of the facts constituting the cause of
action, in ordinary and consice languge... a demand for judgment for the relief to
which party claims he is entitled (p. 299)
** modern pleading: just a hint please...
invoke, or at least refer, a body of substantive law
sketch a factual scenario, if shown to be true, falls w/in this body of law
nature of injuries, amount of damages claimed by plaintiff
note, that plaintiffs need not explicitly invoke a legal framework.
Functions of modern pleading:
Eliminate cases that suffer from signficant defects (procedural, insufficient legal
theory)
By 12(b)(6) allows for complete dismissal of the claim.
Risk of eliminating complaints, that are poorly pleaded, but that can be repaired.
To address this concern, the court will almost never dismiss a complaint without
granting the plaintiff leave to amend
For problems resutling from lawyers incompetence - leave to amend should fix
For probs that lies in the historical record (lack of facts) - then no amount of
amending will make it a valid claim.
Sharpen the issues of dispute => enables parties to reach converging estimates of the
merits of the case.
Shapes the discovery process
What moden pleading does not do:
For really cookie-cutter types of litigation (e.g. car accidents) wont usually define
the particular facts in dispute or convey substantial fatual info about the case.
Goals of modern pleading:

 Learn as much as we can at the start of the case in order to weed out weak cases
cheaply and early.
Eliminate technical barriers to cases that will be meriotorious with future
development (i.e. discovery).
Dont want to weed out a potential meritorious claim too early.
The second goal is better fulfilled, it screens out only those cases where pleader lacks
legal basis for claim, allows facts to be screened out later.
* consistent w/ questions of law being faster/cheaper than questions of fact
Haddle v. Garrison (p. 307)
P sued Ds for conspiracy under federal civil rights law that made it unlawful to
intimidate someone who was to appear in federal court.
this is how he got into fed court - conspiracy claim - a regular wrongful discharge
claim would have been state claim - and here there was no complete diversity.
P claimed injury to his ppty -- the loss of his job.
D moved for 12(b)(6) because under precedent case, at-will employment not ppty (P
conceded that he was an at-will employee).
Motion granted.
Takeaway: the dismissal was granted soley because of a matter of law -- did not
depend on factual matters (i.e. whether P was fired in retaliation for his testimony).
Court assumed the facts were true, and looked to whether it would be a claim under
the body of law invoked by the complaint.
Note, SC granted certorari after P lost appeal on the issue of:
Whether P can state a claim for damages by alleged conspiary caused his at-will
employment to be terminated.
SC decided that though at-will employment is not property for purposes of due
process, third-party intference with at-will employment constitutes injury of person
or ppty under the fed statute at issue.
ETHICAL LIMITATIONS TO PLEADING...
Exploring Rule 11:
Reading Rule 11 as Statute
Purpose: why?
Deter unjustified litigation possibilities.
Scope: whats covered, whats not?
Only signed documents, excluding discovery
If it regards discovery, applies to diff rule see 26(g)
Scope does not include saying something (not signed document).
If false statement made, maybe violate other rule, but not rule 11.
Addresee:
Signers of documents (and by extension those who supply them with info)
This is addressed to lawyers, unrepresented parties, law firms, and in some
instances the client.

 Hypo: client tells lawyer story, lawyer ends up filing a claim, later turns out to be
false. Who is liable under rule 11?
Laywer if could have been found by reasonable inquiry.
Client may be liable too (some courts have sactioned clients).
Usually if client has given false representation and attny not in good positoin to
know client was doing so.
Command: commands what?
See (a), (b)(1)-(3)
Exceptions: any outs?
Some wiggle room in (b)
Safe harbor (c)(1)(A), (c)(2)(A)
Inapplicable to discovery (d)
Consequences: what if she/he doesnt?
Sanctions (c)
Walker v. Norwest Corp (p. 320)
P filed a case in federal court asserting SMJ by diversity.
Ps compliant merely noted that one of multiple defendants was of diff state but
failed to allege the citzenship of the other defendants. In fact there was no
complete diversity.
11(b)(2) was violated, Ps attny did not a resonble inquiry into the citizenship of the
defendants even though it was Ps burden to plead the citizenship of the parties since
it was invoking diversity juris.
D moved for a motion to dimiss (12(b)(1) lack of juris) and made motion for award
of sanctions.
Though note in this case it is unclear whether D complied w/ procedure for making
such a motion under Rule(c)(1)(A).
Why request for sanctions?
Maybe to send strong message to litigator for his incompentence.
Christian v. Mattell (p. 324)
P filed a case for copyright infringement for a doll she created against Mattel.
Though Mattel had a copyright that predated Ps copyright by 6 years.
11(b)(3) was violated, failure to make reasonable inquiry (the info was on the back
of Barbies head!)
Why request for sanctions?
Likely to send a message to other ppl who will try to sue Mattel.
Note, that in this case the sactions were reversed by appeals court for further inquiry
because the district court listed a whole bunch of Christians egregious behavior that
justified sactions, BUT not all of it was w/in the scope of the Rule (included conduct
in depositions, disovery meetins of counsel, oral representations at hearings) -- thus
trial court did not make an explicit finding that counsels conduct constituted bad
faith in regards to the Rule.
Basically appeals court said it is unclear whether sanctions were granted as a result
of behavior covered under Rule 11 or behavior outside its scope.

SPECIFICITY REQUIRED IN CERTAIN PLEADING

Stradford v. Zurich Insurance Co. (p. 328)
P dentist sued D insurer for unpaid policy payment.
D counter-claimed fraud.
P moved for dismissal of counterclaims for failure to state specificy under Rule 9(b).
Court granted leave to amend -- under Rule 15(a) -- because it was fixable, D merely
had to add that the incident P was trying to recover for under his policy occurred at at
time when he permitted the policy to lapse and that he mispresented the date of the
incident to bring it w/in the coverage period.
Note that this issue of fraud was brought in a counterclaim, but that D could have just
pleaded issue of fraud as an affirmative defense -- under 8(c).
Strategy: a fraud claim may evoke sympathy - paints plaintiff as underserving
Note, that Ds original counter-claim would have sufficed under Rule 8 as an
ordinary pleading. BUT more specificy is required for something like a fraud
claim because of the increased severity of what is at stake -- now there is puntiive
damages at stake. Note that a more generalized statement of a fraud claim looks a lot
like a contracts claim. So if the Rules didnt demand more specificty, every contract
claim could be seen as a puntive damage action which would result in drastically
different consquences.
Note, that this is despite the justification given in Gomez, here P has to plead
specificity regarding D concealing something (even though D has the best
access/knowledge).
Specifiy issues:
If a plaintiff makes a pleading too specific (e.g. lists 4 specific types of disrminatory
behavior by defendant, no generalized allegations in a civil rights suit).
D wishing to get rid of the suit w/ minimum expense and publicity, changes the 4
specific charges, and the case is moot.
This is Buckhannon Board, if plaintiff was only seeking injunctive relief and not
damages case is over and no ability to get attny fees under fee-shifting statute
since no judicially enforced judgment.
Specific does not equal long.
Some statutes forbid certain kinds of specificity in pleading (e.g. in CA cant specify a
damage demand in personal injury complaint -- concern for D fainting/having heart
attack)
Civil rights is an area where there was a battle about specificty.
SC has rejected heightened pleading standards for civil rights claims.
Burden of Pleading
Burden of pleading = party must allege that element of the claim or defense, not the
responsibility of the other party to do so.
Burden of production = at trial party must produce sufficient evidence that tends to
demonstrate the element is met.

 Burden of persuasion = the standard by which the party must convince the trier of fact
that ones version of the facts in regards to the element is met.
Usually, the three go together. For a given element, a party will carry all three
burdens. But this isnt always the case.
Gomez v. Toledo:
SC granted certorari on whether in an 42 U.S.C 1983 claim, a plaintiff must allege
the official has acted in bad faith in order to state a claim for relief, or whether the
defendnat must plead good faith as an affirmtaive defense.
i.e. who has the burden of pleading qualified immunity?
SC said qualified immunity is an affirmative defense, thus burden of pleading rests
with the defendant.
Justified doing so because whether or not defendant acted in good-faith (thus gets
qualified immunity) depends on facts w/in the knowledge and control of D.
Strategy: why did P bring this all the way up to the SC? He could have just added the
good-faith part in his pleading on leave to amend.
* P likely wanted to resist conceding that he had the burden of pleading qualified
immunity for fear that it would mean he had burden of proving it as well (i.e. burden
of producing and persuading).
Note, that for some affirmative defenses (statute of frauds & s.o.l. ) -- the basis for the
affirmative defense is clear from the complaint. In these cases, P may be required to
negate this defense by including an additional allegegation such as fraud, estoppel, or
waiver.
The two versions and what would have to be shown:
Ps version:
Ds version
Complaint:
Complaint
State action
State action
Violation of constitutional rights
Violation of con. rights
Injury
Bad faith
Injury
Answer

Answer
Denial
Good faith as affirmative defense
denial
RESPONDING TO THE COMPLAINT
No response
Will result in default judgment.
PREANSWER MOTIONS: requests for the court to do something, take a step (e.g.
dimiss the case)
Consequences:
Delay of answer while court decides the issue raised by the motion.
Dont have to atually respond to answers in complaint until pre-answer motion is
addressed.
Note: motions take NO POSITION on the truth/falsity of Ps allegations.

 Preanswer motions gives D the possibility to get the claim dismissed right away (or at
least a delay).
Motions having nothing to do with the claim itself, why claim should not proceed.
12(b)(1): lack of subj matter juris (Hawkins)
Even if complaint is true, doesnt matter, failure to state a claim upon which relief
can be granted (i.e. under substantive law no right to relief)
e.g. D made face at P.
but wouldnt this not occur with out a Rule 11 violation?
12(b)(6): Bridges v. Diesel (no claim allowed till through trying admin remedies)
The complaint is too vague, confused, or complicated
12(e): Bell v. Novick
ANSWER: responds to the allegations of the complaint
Consequences:
Case proceeds....
Deny the truth of one or more of the allegeations, or may deny until more info is found
-- By Rule 8(b)
Under this Rule can make a good-faith general denial of all averments , though rare
that D can deny each and every allegation in good faith
note, I think if was such a case P could make a 12(b)(6) motion or Ps attny
possibly violating Rule 11(b). Also if D wrongfully asserts a general denial he
could be subject to Rule 11.
Assert additional matters that will completely or partially defeat Ps claim.
Affirmative defenses - By Rule 8(c) -- things like s.o.l., contributory neg.
Any allegation that is not denied is taken as ADMITTED.
By Rule 8(d)
These are the possible responses (generally) to the complaint.
Note, D can utilize multiple responses.
If D wants to make his OWN claims:
Counterclaim against P
Cross-claim against another D
Third-party claim against a new party
Strategy:
Pre-answer motions are attractive because they can potentially end the case early and
before great costs are incucrred (because rely on very limited factual investigation or
no factual investigation at all).
Also can bide D more time....
What a motion usually consists of:
The request itself
Notice to the opposing party when the motion will beheard
Affidavits if appropriate (swon statement that a person has obseved certain facts)
A memo w/ reference to the facts and supporting authorities the basis for the motion.
Many attnys include proposed order doc the judge can sign if she grants motion.
Consquences of making a Rule 12 motion --

 To prevent defendants abusing motions to just delay litigation

Rule 12(g)-(h) provides consequences.
Must consolidate certain defenses/objections if making a motion:
12(b)(2)-(5) must be consolidated with motion or they are WAIVED.
but the more substantial defenses: lack of SMJ, failure to join, failure to state
claim are not waived if not joined.
If D does not make pre-answer motion for a defense/objection, he can still after the
pleadings are closed make a motion for a judgment on the pleadings 12(c).
Preliminary hearings...
Any 12(b) defense whether made by motion or included in pleadings, and motion for
judmgnet on pleadings 12(c) will be hard and determiend BEFORE trial, unless the
court orders hearing/determination be postponed until after the trial.
Pre-answer motion -- motion to strike 12(f)
12(f) can act like a 12(b)(6) for a specific allegation:
e.g. P seeks punitive damages but punitives not recoverable for the type of claim he
brings.
redundant, immaterial, impertinent or scandalous matter
info that is confusing, excessively deragotry info, etc.
note, such motions are not favored as they are seen as a waste of time.
Really only appropropriate if they will prejudce the morinv party.
Example - Denial:
Zielinski v. Philadelphia Piers, Inc.
P sued D, ER of worker who injured him.
5 of Ps complaint stated: a motor-driven vehicle owned, operated and controlled by
D its agents as so negligently and carelessly managed
D denied 5.
P thought it was denying the liability part but D was denying the owned and operated
part.
Down the line it became clear P sued the wrong person BUT by that time s.o.l. had run.
Note, this was before 15(c)(3) -- today could have amended to change name of D.
By not specifically denying the pertinent allegations - as required in 8(b) -- D
prevented P from using the correct D.
Note, that Ps attny could also be said to be at fault by the way he clumpted these
allegations stogether.
The court made it so D had to admit the sections of 5 notwithstanding the liability
part (that it owned the forklift and that the agent handling it was an employ of the D)
even though this wasnt actually true.
Since the same insurance copmany was represening the orignal D and the correct
D there was no prejudice to D.
Justified on equitable estoppel principels.
Takeaway: the complaint and the answer should be written in a clear manner so the real
issues disputed are clear. Specificity is important.

Layman v. Southwestern Bell Telephone Co (p. 348)

P sued D for trespassing and installing telephone lines that decreased her ppty value.
D made general denial of her complaint, and later sought to introduce evidence that
that they had right to enter land because of an easement.
Court said trial court should not have allowed evidence of the easement because D
should have indicated it as an affirmative defense.
Reading Layman sensibly:
If P was atually surpised by the evidence...
On remand, D will amend answer, and everyone will know the issues and case can
be settled or retried.
Reading Layman strictly:
Regardless of whether reveryone knew about the claim of the easement: remand the
trial anywya and give P an underserved second chance.
Strict reading of Layman means: any affirmative defense must be pleaded in an
answer as an affirmative defense.
Note, that whether or not something like this would geninuely surprise P would depend
on how much discovery or pretrial process has occurred -- if very little -- then the
pleadings bear the entire burden of exposing the issues in dispute (like in common
law). Otherwise, shouldnt make much diff whether something is pleaded as a denial
or an affirmative defense because P has notice.
P only needs to reply if Ds answer contains a counterlaim that is labeled as a
counterclaim -- under Rule 7(a)
In other words, if D should have put something in as a counterclaim but labeled it an
affirmative defense => no reply required.
If the answer says something is a counterclaim but is really an affirmative defense,
technically a reply is not required BUT catious lawyer may reply anyway.
Amendment of Pleadings -- Rule 15
Rules allow parties to amend (i.e. change their pleadings).
This goes hand in hand with discovery rules which allow for broad discovery.
Parties need to be able to reflect the new findings into their pleadings -- 15(b)
Amendments allow for more accuracy => finding the truth
They also need to be able to correct insignificant mistakes by Rule 15(c)
things that do not change the nature of the claim
or not suing new defendant who did not have notice
often P will want to make an amendemnt to a claim that if not allowed to relate
back would be barred by s.o.l.
whole point of s.o.l. is to give a certain time frame upon which D could expect
could get sued... s.o.l. has run... no suit I can relax -- if D KNOWS a party meant
to sue him, but did not then this does not offend the purpose of s.o.l.
BUT easy amendment needs to be balanced with prejudice -- at some point a party
has to decide how to presents its case so the other party can do what it needs to.
Generally, too late to change if:
s.o.l. has run

 party was withholding something purely to gain advantage

Beeck v. Aquaslide (p. 354)
P brought SPL suit against D.
After s.o.l. had run, D realized the product wasnt theirs.
Court let them amend its answer to deny manufacture, separate trial was held on issue
of whether D in fact was the manufacturer. Jury found D not manu => case dismissed.
P appealed, basically wanted the court do pull a Zelinski and make D stand by what it
initially stated.
Appeal court affirmed, because it did not have any evidence that trail court abused its
discetion -- noting that trail court had not found evidence of bad faith or undue delay,
the investigation on the product had not lacked diligence, and noted P had not raised
issue that D was not manu either.
Leave to amend was correctly given.
Sucks to be P, but note that if this would have gone to trail it would have been a mess...
how would D have defended the design of a product that wasnt even theirs?
Note, P could not have used 15(c)(3) to change the party name of D -- amend back,
because in order to do so, the real D would have had to know or reasonably should
have known that Aquaslide was being sued in error and that it should have been him.
Important that a party KNOWS a party meant so sue him, but mistakenly did not.
Note, Zeilinski is a case where 15(c)(3) woud have applied perfectly.
Relation Back:
Moore (p. 259)
Original claim = informed consent
Amendment = medical malpractice
Relation back DENIED.
Court says original did not allege any
negligence either during or after surgery.
P would have had to prove completley
different facts to win her amended claim
versus her original claim.
Note, P tried to amend AFTER
discovery.
Yaz thinks this was important.

Bonerb (p. 360)

Original claim = negligently maintaining
bball court.
Amendment = counesling malpractice
Relation back GRANTED.
Court notes in original P asserted several
instances of Ds neg conduct including
failure to properly supervise
Court says came original and amended
complaints derive from the same
nuclear of operative facts
Note, P tried to amend at BEFORE
discovery was over (depos had yet to be
taken, not expert witness info).
Lesson: If early in discovery something comes up, AMEND immediately!!
-----Disclosure v. discovery
Disclosure? May be used to SUPPORT claims or defenses.
Discovery? Any matter RELEVANT to claims of defenses.

DISCOVERY
If case is not dismissed through initial pleadings => pre-trial i.e. discovery phase
Most lawsuits end here.
Discovery ends lawsuits for two reasons:
1. produces info about the merits of each partys position => can end in settlement or
SJ due to merits of the case.
2. discovery costs time and money => can end due to lack of resources, not due to
the merits of the case.
Scope and depth of moden U.S. discovery is unique.
Discoverable information:
Relvant info...
Relevance ties discovery and evidence to substantive law.
Relevant info = any info that tends to prove or disprove something the law says
matters.
Irrelevant info = not signficant to the substantive law
e.g. if K dispute
claim that goods were defective => condition of goods is relevant
claim failure to pay because $ used for sick relative => health of relative is
irrelvant because in the law of contract, ones motives for breaching a K dont
matter.
NOT Privileged...
Privileged info = info that we think deserves protection because of something that is
more important than getting to the correct outcome of the case. E.g. privacy, selfincrimination, attorney-client relationship, etc.
Note, privilege info is often highly relevant.
A privilege is not absolute, it can be WAIVED.
E.g. doctor-patient privilege will be waived if patient sues for personal injury and
D wants medical records because P has chosen to come into court and put his own
physical state at issue.
Otherwise discoverable info may be protected by a protective court order.
Privilege vs. trial preparation
Trial preparation protection may be overcome by a showing of substantial need
(prove case and unable w/out undue harship to obtain equiavalent)
Privilege, unless waived, is absolute
Trial preparation vs. protective orders
26(b)(3) -- trial preparation -- protects certain info that is produced by lawyer in the
process of preparing for a case (i.e. prepared for ancitipation of litigation)
giving this info over would reflect lawyers theory of the case
trial prep mateiral not discoverable unless substantial need.
presumption of NO access
26(C) -- protective order -- balances need against colleteral harm
lots of judicial discretion about whether and how to potect it.
Presumption of access.

Sequence & Structure of Discovery

Prefiling investigation with informal devices => required under Rule 11
Service: Defendant served (5) or waives formal service (4(d))
Appearance: D files some paper/motion that shows its participation in the lawsuit by
answer (8) or 12(b)(6) motions
Conference of parties: 26(f)
parties must as soon as practicable, but at last 21 days before scheduling conference
meet to discuss claims, deenese, settlement and resolution possibilities, make/arrange
disclosures, and develop proposed discovery plans/rules.
Scheduling Conference held by judge
Stage 1 -- DISCLOSURE: 26(a)
Each party makes initial disclosures => forces parties to decide their args early on
Basic disclosures (e.g. names address of witnesses, docs used to support
claim/defense, computation of damages, insurance agreements => 26(a)(1)
Disclosure of expert testimony: must disclose experts report including all
opinions/basis that will be used; experts qualifications & publications => 26(a)(2)
can supplement disclosures later on => 26(e)
If it is relevant, not privileged, and will be used to support partys claim; calculations
of damages, insurage agreements => disclosed
UNLESS will be used solely for impeachment (info that will only be used to attack
credibility if a witness testifies)
only applicable at disclosure stage, if asked right ? at discovery must produce
some evidence may be used to impeach or to support case (but impeach info is
subset of the info that can show contradictions in Ps case)
note, using this excpetion is risky because if the witness never testifies, lose
chance to use this evidence to support case (vs. losing element of surprise)
Consists of into that has emerged as being pertinent to every case.
Timing: Rule 26(a)(1) requires parties to make disclosures at scheduling conference
or w/in 14 days after.
Parties may begin to use other forms of discovery - depositions, interrogaties, etc.
Stage 2 -- DISCOVERY: 26(b)
Discoverable Information:
1. relevant? Parties, without court approval may seek discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party ... [and]
reasonably calculated to lead to the disocvery of admissible evidence.
2. Privileged?
3. Protective Orders 26(c)
info that is relevant, is not privileged, but nevertherless inappropriate evidence if
it would produce annoymance, embarassmen, opression, or undue buden or
expense (i.e. evidence should be protected because of public policy concern)
protection often requestd to prevent discovery in one case from being used in
another, similar case. (future liability vs. efficiency for new litigants)
4. Trial Preparation - Materials => 26(b)(3)

 info on the mental processes of other party or her represetnative (including attny,
consulant, insurer, etc) developed in preparation for litigation.
May be obtained if showing of SUBSTANTIAL NEED (substantial need of the
matierial in the preparation of partys case and unable without undue harship to
obtain equivaluent)
A person (party or non-party) may obtain w/out the required showing a written
statement by herself previously made or recording of oral statement
5. Trial Preparation - Experts => 26(b)(4)
a party may depose any person who will be an expert witness (after receiving
disclosed report) => 26(a)(1)
the mental processes of non-testifying experts developed in preparation for
litigation may only be discovered (through depos, docs) under a showing of
EXPCEPTIONAL CIRCUMSTANCES (cant obtain by other means)
note, alternative approach to get info from non-testifying expert is to say not an
expert but person is like a FACT witness, i.e. party didnt retain for litigation,
but party went to him because of this prob.
Interrogatories & Requests for Admissions:
Interrogatories => 33:
CANNOT send an interrogatory to NON-PARTY, can only depose a non-party.
No more than 25 questions (w/out permission)
Objection to interrogatory => 33(b)(4)
Requests for Admission => 36
Party may serve a request for admission to a statements or opinions of fact or
of the application of law to fact
An admission is like a pleading -- takes matter out of controversy.
if evidence to the contrary (e.g. questionable credibility of person making the
statement requested for admission) => dont admit!
If non-complying answer is given (e.g. failing to answer) => court may order the
the matter as admitted or that an amended answer be served.
Examining Things/People:
Inspection of land, objects, and documents (any medium for recording data or
information) => 34
Requests to nonparty -- subpoena under 45(a)(1)(C)
Unlike depositions, interrogatives, number of documents requests not limited
Physical and mental examinations => 35
Depositions => 28, 30, 31, 32
Usually last because hard to do w/out good background info.
no more than 10 total depos taken by one side; no depo more than 7 hours; no
person deposed 2x (if want more need permission of court or other side)
instruction to not answer must be necessary to preserve a privilege, to enfroce
limitation directed by the court, or to present a motion under 30(d)(4) => 30(d)(1)
objection to other concerns (e.g. irrelevant question) should be noted => 30(d)(1)
Enforcement/compliance with discovery rules => 26(g); 37
3 basic patterns of discovery abuses:

 too little discovery (stonewalling) = party refuses/resists appropriate requests

too much discovery = party seeks more discovery than justified to hurt opponent
mismatched discovery = one partys resources significantly more
General info:
Courts expect parties to work things out before the court must step in.

note, while 11 autohrizes sanctions on law firm, in addition to or in liu of the

indiv. lawyer, neither 37 nor 26 contains such a specific authorization.
Signing of disclosures, discovery requests, responses, and objections => 26(g)
26(g) is like Rule 11 which requires parties to act in good-faith, make
reasonable inquiry before signing a request, response, or objection.
note that MOTIONS relating to discovery are governed by 11.
sanctions for making unjustified discovery requests or refusals 26(g)(3)
Some sanctions are available for misbehavior (missing depo, not serving answers
to interrogatories or responding to requests for inspection) => 37(d) & (g)
Other sanctions only apply after party fails to comply with court order granted
after opponent makes motion to compell disclosure or discovery => 37(b)
Motion for Compelling:
A party, after giving notice, may apply for an order compelling disclosure or
discovery by motion => 37(a)(2)
If motion is granted court after giving the opposing party an opptny to be heard
may award reasonable expenses, unless moving party did not make good-faith
efffort to confer w/ opposing party, or opposing party has good justification, or
other circumstances make award unjust => 37(a)(4)
Failure to Disclose or Amend Discovery; False Disclosure; Refusal to Admit
failure to: make initial disclosures by 26(a); to supplement disclosures by 26(e)
(1); or amend prior response to discovery by 26(e)(2)
CONSQUENCE => evidence INADMISSIBLE at trial => 37(c) (1)
unless failure was harmless because other party knew about it but may still
have to pay sanctions for the failure
failure to admit something that was later proved true (36)
CONSEQUENCE => pay reasonable exenses incurred in making the proof
Stage 3 (in some cases): 26(b)
By leave of court
If good cause, court may grant broader discovery of any matter relevant to the
subject matter involved in the action.
RELEVANCE CASE EXAMPLES
Davis v. Precoat Metlas (p. 365)
What claim by P?
Ps sued employer for race and national origin discrimination and reteliation.
Info sought?

1998-2000 internal complaints by ees who worked at same plant - regarding

complaints of race and national origin discrimination.
What discovery device?
Interrogatories (tell us about the complaints), document production (give us the
forms).
Was there a strategic as well as informational reason for seeking this info?
Maybe recruit more plaintiffs (but note s.o.l. contraints), perhaps induce employer to
settle, etc.
What objection?
D said too broad, not narrowly tailored, irreleant (claim is discrimianted against
YOU)
Courts ruling?
RELEVANT.
Info can be used to disprove an expected standard defense -- based on individual ee
performance - can show that this is just a pretext.
can show a pattern of discrination, a general policy.
Narrowly taillored -- asked for complaints in same plant upon same discriminatory
acts (or race and national origin).

Steffan v. Cheney
What claim by P?
P claimed he was construcitvely discharged for making statement of being
homosexual. P is not challenging the lawfulness of the militarys liability for
discharging for homosexual conduct.
What info sought?
D wanted P to answer during a deposition whether he had engaged in homosexual
conduct during or after his tenure as a midshipman. p. 367
P refused to answer claiming 5th amendment privilege against self-incrimination.
P also said it wasnt relevant.
D made motion to compel this answer, claimed it was relevant because military
COULD have dismissed his for this conduct. Trial court dismissed for failure to
compy with disocvery order under 37(b)(2)
Courts ruling?
IRRELEVANT.
Judicial review of an adminstrative action is confined to the grounds upon which
the record discloses that the [the] action was based. SEC v. Chenery Cort., 318 U.S.
80, 87 (1943).
Facts shows P was dismissed for stating that he was a homosexual.
Military cant claim now that there was a differrent reason (i.e. homsexual conduct)
for his dimissal.
Note, that P was willing to risk dismissal to get this issue raised (appeal on final
judgment).
Standard social change through litigation strategy = knock out the narrowest issue.
DISCOVERY CASE EXAMPLES

 Protective Order -- 26(c)

Stalnaker v. Kmart Corp (p. 381)
Ps claim for sexual harrasment at work
D sought protective order protecting non-party witnesses from being asked questions
concering romantic/sexual conduct w/ D under Rule 26(c).
Court limited scope of the discovery:
D gave good cause for barring discovery of voluntary romantic/sexual activities to
the exntet thy have no relationship with current claim.
BUT since any sexual harrassment by D is relvant, inquiry is allowed regarding
any voluntary/sexual actitivies with D to the extent that it shows D solicited the
activities.
Trial Preparation - Materials -- or work product 26(b)(3)
Hickman v. Taylor (p. 391)
P was suing for tug boat accident.
P sought non-privileged material (from defense attnys investigation of survivors)
NO discovery, P already had much of it, or could obtain it himself, admited wanted it
to prepare himself to examine witness, to check not overlooking things.
Note, today this info may be privileged under Upjohn (attorney-client privilege
extends to communications between counself and all coprorate employees)
Trial Preparation -- Expert
Thompson v. Haskell: assumed non-testifying experts report on psychological exam
taken right after P was allegedly wrongfully terminated due to sexual harrassment
where P claims emotional distress.
Timing + no real alternative => Discoverable
mental state right after firing higly probative, inaccessible to D at this point.
Chiquita: expert report on foiled shipment of bannas.
Seems like free-loading => NOT discoverable
D had own opptny to get info vessel and equipment were acccessible to D; indeed
under Ds exclusive control for a while.
DISCOVERY ABUSE EXAMPLES
Thompon v. H.U.D.
Class action for racial segregation in public housing.
In reponse to lots of docs requests under 34, D didnt respond.
Court told parties to work it out themselves -- analyze burden/benefit factorrs of Rule
26(b)(2). Cooperate and be creative.
Poole
P was suing for overturned golf cart.
D violated all sorts of rules -- specifici provisions were awarded sanctions under
37(a)(4) -- failure to respond to certain discovery requests as well as sanctions under
26(g)(3) for overall half-ass work they did in reponse to discovery requests.
Court chose not wared additonal sanctions beyond reasonable attornys fees and
costs because of lack of evidence of bad-faith.
* note discovery abuse doesnt just hurt other side, hurts the violater sides too. Because
failing to do in-depth look of the real evidence may result in ignorance to the strength of

the clients case. Will end up hurting if dont discover evidence early on that indicates
that the suit should be settled. Could end up having to pay sanctions for discovery abuse
+ losing the case.
----SETTLEMENT
ASPECTS OF CIVIL LITIGATION
Courts insist on adjudicating unless parties agree. Adversarial process, if you dont
stay engaged, it will end.
Judgment by default: if a party has failed to plead or otherwise defend as provided
by the rules and this fact is made to appear by affidavit or otherwise => 55
Involuntary dismissal: for failure of P to prosecute or to comply with the
rules/order of court, D may move for dismissal of an action or of any claim
Unless otherwise specified, a dismissal is an adjudication upon the merits => 41(b)
except dismissal for lack of juris, improper venue of failure to join a party under
Rule 19
Trials = expensive, unpredicrable, all or nothing
Settlements:
Pro: converging estimakes on merits save both sides cost, risk, time, can be creative
Con: D may have much stronger resources, thus, bargaining power; D may be scared
of the risk and pay to settle meritless claim.
Ending the case by dismissal so one can settle: 41
Voluntary dismissal: action may be dismissed by P without order of court by filing
a notice of dimsisal at any time before service by the adverse party of an answer or of
a motion for SJ, whichever occurs first OR by filing a stipulation of dismissal
signed by all parties who have appared in the action. => 41(a)
The dismisall is WITHOUT prejudice (exception if P already brought action based
on or including the same claim and dismissed once before)
Generally no judicial approval:
Exception: minors; class action settlements => 23(e)
Ability to enforce settlements
Settlements are Ks
Settlements can be attacked on any ground which one can attack a K: fraud,
duress, mistake, incapacity, unconsionability, etc.
If original claim was a federal action, which could have been brought in fed court,
now to enforce settlemnt for breach of K = state law in state court.
UNLESS settlement is embodied in a judgment or consent decree
Result => the court keeps juris in order to endforce the settlement
If P tries to file lawsuit again:
Affirmative defense accord and satisfaction => 8(c)
Motion for SJ rendered if the pleadings, depositions, ansewrs to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no
geninue issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. => 56(c)

attach settlement agreement, former complaint if any, attested copy of judgment if

any.
A substantial amout of adjudical happens before trial -- 30%
All the diff ways a case can end besides going to trial
Some Settlement Twists:
Claim preclusion and juris:
Matsushita: state court judgment (emodying a settlement agreement) can settle
claims that the state court had no juris to adjudicate (i.e. a fed claim) and because it
is a judgment => 1738 (Full Faith & Credit) => every court must treat this
judgment as the state itself would treat it under its laws.
Confidentiality (of facts, terms of the settlement, etc)
note, that disclousures under Rule 26(A)(1) or (2) and the following discovery
requests and responses must not be filed until they are used in the proceedings or the
court orders filing: depositions (31), interrogatories (33), requests for documents or
to permit entry upon land (34), and requests for admission (36) => 5(d)
parts of discovery usd in some kind of motion will be on public record, so long as
there is not a court order protecting it... e.g. for SJ need some kinds of evidence, so
some kinds of documents will have had to be used.
Kalinauskas (p. 438): if the facts and issues of a dispute are to be kept confidential
according to a settlement consent decree with confidentiality agreement -- in a
subsequent lawsuit brought by a new party, the facts of the preceding case, so long as
they are relevant to the new claim, will not be protected through a motion for
Protective Order 26(c) where the court views the information as concelaing
legetimate areas of public concern (here evidence of sexual harassment).
Lesson: a confidentiality agreement cannot throw a blanket over facts.

ARBITRATION:
Difference between mediation is that arbitration is a contractually agreed to
adjudication i.e. outcome.
Advantages -- room to be creative, potential for personalized procedures, ability to
control applicable substantive law, more privacy, can utilize aribtrators with specialized
knowledge, etc. (e.g. Writers Guild of America)
Cons: no public scrutiny for disputes involving statutory claims
Courts first didnt like arbitration, wouldnt compel, then second wave did so pretty
freely, third wave is courts will compel or uphold arbitration but only that which meets
certain guidelines.
General approach court takes to arbitration:
Front end: will court enforce arbitration?
General rule: Yes, but...
Back end: will court review arbitration award?
General rule: No, unless extreme misconduct by the arbitrator (the actual process
presumably okay or would have being deemed invalid on the frotn end)
Federal Arbitration Act:
Remember, arbitration agreemtns like settlements are Ks

 Enforces agreements to arbitrate provided that:

Agreements to arbitrate are valid, irrevocable and enforceable unless there are
grounds in law or in equity for the revocation of the K.
If a party, in spite of an arbitration agreement files a lawsuit, the court must stay
the trial of the action until aribtration occurs (suspend the claim)
* here, fed district court has juris over the underlying dispute (already in court)
A party can request a district court for an order directing another party to proceed
with its abritration agreement.
* the court can only direct an order compelling arbiration when the fed district
court would have juris over a suit in the underlying dispute (diversity, fed claim)
SC has suggested that state courts are also bound to follow the Fed. Arbitration Act.
SC has required state courts to enforce arbitration agreement even when contrary to
state law if undelrying transaction involves interstate commerce.
SC has upheld mandatory arbitration claims of statutory claims, noting that indiv
doesnt give up the substantive rights afforded by the statute, but submits to resolution
by arbitral instead of judicial forum.
Limitations:
1. Statutes where Congress has mandated a judicial forum (can look to statutory
text, legis history, inerherent conflict between arbitration and statute)
basic argument -- due to the special nature of the claim should not be arbitrable
characterisitcs to consider (how public, important the underlying dispute, etc)
2. If arbitration is suitable forum, there must not be procedural unfairness in the
specified arbitration process.
Remember, Fed Arbitration Act indicates that can be invalid based on K law.
Ryans Family Steakhouse(court found arbitration agreement invalid because of
lack of consideration where the 3rd party arbitrator reserved the right to choose the
nature of its performance (rright to alter the rules and procedudes without notice or
consent of the parties) - thus making its promise illusory) (p. 447)
But note, since this depends on interpretation of K law -- this same arbitration
agreement was found to be valid by a different circuit where P argued
unconsionablity.
Grounds for finding arbitration process invalid: extremely one-sided process, lack of
mutuality of obligation, where procedures less hosptiable than courts (e.g. having to
pay half of arbitrators fees up front), limitations on remedies (e.g. barring punitives,
not providing for attny fees to prevailing plaintiff where fee-shifting statute applied)
Ability to appeal:
Writers Guild of America suggests appeal to a court is possible but will likely be
very narrow.
Courts reviewing powers are limited to whether the parties actually agreed to
submit their dispute to arbitration and whether the arbitrator followed the agreed to
arbitration process.
-----JUDGMENTS AS A MATTER OF LAW

 Adjucative alternative to trial -- for cases that are so one-sided trial would be pointless.
=> when there is no geinue issue of any material fact => Rule 56
Judgment based on the legal and factual matters of the case
BEFORE DISCOVERY/PRETRIAL= 12(b)(6)
AFTER DISCOVERY, BEFORE TRIAL = SJ 56
DURING TRIAL = Judgment as a matter of law -- 50(a)
AFTER TRIAL = Motion for judgment after trial (j.n.o.v.) 50(b)
SJ 56 motion vs 12(b)(6)
12(b)(6) motion => the court assumes the stated facts to be true and looks whether
the facts comprise a claim under the substantive law
since a preanswer motion, takes no position on the truth/falsity of Ps allegations
56 motion => is very factually based.
Are material facts disputed?
Once undisputed facts are identified
RE-ASKS the same issue as 12(b)(6)
If undisputed facts no longer state a claim => SJ for D
If undisputed facts state a claim => SJ for P
SJ 56 motion vs Judgment as a Matter of Law Rule 50
50 occurs DURING the trial (same idea).
After P has been fully heard on an issue, D can make a motion for a directed verdict
under 50(a) on that issue, court may determine the issue if no basis for reasonable jur
to find for that party on that issue => and may grant motion for judgment as a matter
of law.
SUMMARY JUDGMENT:
Must show no geniune issue of any material fact exists
Highlights:
SJ is all about SPECIFICITY!!
SJ after Celotex makes the effective use of discovery mandatory -- if a party doesnt
come up with evidence after reasonable time of discovery => judgment on the merits
before trial!
No saving the big guns till trial => show cards at pre-trial or wont proceed to trial
SJ and Burdens of Proof
At trial, each party will carry the burden of proof for an element
look whether the element is for Ps claim or Ds affirmative defense/counter-claim
A v. B fraud claim
B claims s.o.l. as affirmative defense
One month into discovery moves for SJ - to strike s.o.l. defense on grounds B
cannot show that P should have uncovered fraud w/in the s.o.l. period.
B has the burden of production on the s.o.l. issue since affirmative defense
Can ask for more time...
burden at SJ = burden at trial
* means the standard for SJ will depend on which party is making the motion

SJ just moves up the inquiry as to whether party can meet essential elements to
eliminate the need for having to proceed to trial.
General Process of SJ:
moving party produces evidence that shows no geniune issue of material fact
Burden shifts =>
nonmovign party produces evidences that shows there IS a geniune issue
*when deciding whether to grant SJ court will look at the partys showings and draw
all justifiable inferences in favor of the nonmoving party.
Moving party may choose two routes: (p. 460)
Produce affirmative evidence that negates an essential element of the nonomoving
partys claim.
i.e. attack nonmoving partys evidence on an element
Direct the court to evidence that shows the nonmoving partys evidence is
insufficient to prove an essential element of her claim (Celotex)
i.e. point out nonmoving partys lack of evidence on an element
must affirmatively demonstrate, no general assertions
Evidence that can support an SJ:
Affadavits -- info must be based on personal knowledge
Depositions, interrogatories, admissions (cant use allegations in pleadings)
Defending against an SJ: simply denying the moving partys claim is NOT enough,
must either:
Present evidence that counters moving partys evidence => there IS an issue of fact
e.g. if moving party uses As affidavit, present affidavit from B that contradicts A;
or present evidence that attacks As credibility.
i.e. but careful -- such evidence must be wholly at odds with moving partys claim
-- if there is no conflict then SJ is granted.
Bias(SJ granted where nonmoving party produced affidavits from coach/parents
who said decedent was not cocaine user and that some life insurance policies at
certain points in application process do not ask about drug use BUT moving party
had produced affidvaits saying decedent used drugs at parties and that at some
point in the application process every policy issuer asks about drug use)
nonmoving partys evidence was too general, did not contradict moving partys
specific evidence -- feasible that all the evidence taken together could be true
Direct the court to evidence that shows the moving party has not adequately
demonstrated a deficiency in the nonmoving partys evidence
e.g. point out evidence the moving party ignored or overlooked
Time to defend:
party gets served at least 10 days b4 the hearing for SJ
If nonmoving party cannot presently state affidavict facts to defend, court may
refuse to grant SJ or may order a continuance for more discovery to be had, or
make other order as is just.

MANAGING TRIALS
Some stats:
Fed disrict judge (civil litigation) probably has about 500 cases

State judge 1500-2000 cases

90% of cases end w/ modest court action in less than 8 months
20% cases end in avg of 6 months (quick settelements)
70% cases see some court action but end before pretrial - 7.7 months
8% end at pretrial
about 2-3% of cases end at trial
courts have enourmous amount of cases filed
best management technique = setting early trial dates (but increases costs)
Typical scheduign and planning => everyone manages together
Pretrial conferences, scheduling, and management => 16
court can enforce sanctions for not complying with pretrial rules (scheduling,
submitting witness lists, briefs, etc)
but dismissal sua sponte (no warning) -- should only be for extreme circumstances
(Sanders en banc)
Pretrial orders - Vary by court; some courts require pretrial statements defining issues, proofs,
specifying admitted/disupted facts. Can have imp. consequences for trial
McKey(P tenant ould not change her theory in pretrial order for neg case against LL
by adding theory of liabilty based on housing codes)
Original theory of liability relied on lease
New theory of laibiltiy relied on housing code
During trial, P coudnt introduce evidence parts of the housing code because they
were irrelvant to her neg claim that said breach of duty owed under lease.
i.e. this evidence would show breach of duty was owed under housing code
Amending Pretrial order:
After any pretrial conference, an order is entered reciting the actions taken
This order controls the subsequent court of action unless modified by another
subseuqent order.
An order following the pretrial conference shall only be modified to prevent
manifest injustice => 16(e)
Requires weighting harm to P in limitig the considerations of her case against the
possible prejudice to D if amendment is allowed.
Possible for court to order a continuance to balance these two considerations

Typical sheduling/planning:
Rule 26(f) conferences of lawyers
21 days before Rule 16(b) scheduling conference
both sides have to say what they think about discovery.
Laywers meet and confer explore claims, setttlement, discovery plants (incl.
disclosure)
Joint report to judge
Rule 26(a)(1) disclosures
At or w/in 14 ays after 26(f) conference
Rule 16(b) scheduling coference - Either actual meeting or phone call.

 * Judge is required to set a timetable => to get parties to use rules framework
effectively which includes the crucial use of DISCOVERY - the technique that is
most helpful in aiding settlement.
Discovery and other deadlines, inc. additional conferences
At this scheduling conference, the judge has leeway for additional meetings.
Discovery
Settlement conference?
May not occur; may be combined with other conference
Rule 16(d) final pretrial conference.
If this is a case that looks like it will go to trial, need to nail some things down (e.g.
what exactly are you claiming?). May have deadline for amended pleadings.
Explore settlement ; refine area of dispute; witness and exhibit lists
Set number of trial days.
--------Even though most cases dont get to trial, still important what happens at trial, because
outcomes at trial create the shadow of the law in which settlement negotations occur -influences estimations of what would happen at trial.
TRIER OF FACT
Judge:
Because most cases end before trial, for most caes the only deicions made by anyone
other than the parites themsleves is the judge (juris and venue, coice of law, pleadings,
discoveyr motonis, motions for SJ)
Policy reasons for 544:
Courts must not only be, but seem to be, free of bias or prejudice => an appearance
of partiality is at odds with this...
Recusal on demand would let parties veto unwanted judges, recusal only appropriate
when thre is a factual basis.
Bias and Recusal:
144: allows parties to file an affidavit pointing out that judge is biased (at least 10
days beore beginning of ther term whiich proceeding is to be heard) must bin goodfaith, only get one such affidavit.
Judge can rule on the challenge to her impartiaility herself, but many ask
colleagues
455:
(a) any jduge shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned => very BROAD
judge may accept waiver from the parties to hear case
(b) judge shall disquality himself for very SPECIFIC circumstances
CANNOT accept waiver to hear case under ANYTHING in 455(b)
Includes if judge has financial interest, no matter how small

(f) provides for sutation where grounds for disqualification unknown before trial...
after long time... emerges... disqualification not required if the judge diversts
herelf of the interest that provides the grounds for the disqualfication
Standard for Recusal:
Disqualitifcation is only appropriate when the charge is supported by a factual basis
A reasonable person under the cirumstances would doubt the judges impartiality
* substantive standars for disqualifications same for both statutes
Recusal case Appeals
1. should the judge have recused himself?
2. if so, did the failure to reclus invovle a seroius likelihood of injustice as to
overturn or reopen the case?
Recusal during a case (very rare)
Judicial attitudes acquired during litigation itself (intrajudicial bias)
Disqualification only when judicial remarks reveal such a high degree of
favortism or antagonism as to mke fair judgment impossible
Complaints:
372 lets you complain about judges, but will not remove a judge. Only recusal
can.

Right to jury trial

right to trial by jury in FEDERAL courts granted by 7th amend.
Can be very important because trial and appellate courts are bound to give jury verdicts
wide deference -- by the 7th amend.
7th amend provides the right to jury in suits in common law, where the value of
contovery shall exceed $20, the right of trial by jury shall be preserved
Historical test: party has a right to jury if the claim would have been w/in the juris of
the common law courts in 1791 (rather than the court of equity)
Depends on the REMEDY being sought:
Common law => breach of K, DAMAGES, replevin, ejectment
Court of Equity => injunctions, suit for K reformation & rescission,
* when party asks for mix of remedies => party gets jury on any factual questions
that overlap.
E.g. suit for nusiance, want injunction AND damages
Jury would hear ?s like: was this sufficiently unreasonable to be nuisance?
Jury decides this question; judge boundby it but uses his discretion to determine
whether or not to grant injunction.
EXCEPTION: note, a statute can explicitly give you a right to trial by jury.
A party may demand a trial by jury of an issue that is triable by jury by serving upon
the other parties a demand no later than 10 days after the service of the last pleading.
=> 38(b)
If not done as required in (b) it is waived => 37(d)
* lesson if you want a jury trial, and have such a right, put in original pleading!!
Juries
jury outcomes v. judge outcomes

 bench trial requires judge to spell our inferences => 52(a)

overturned if clearly erroneous
jury trial = black box as to how they decided the outcome
given wide deferece
* note by the time reaches, trial theoretically a jury could find for either side or it
would have been weeded out already
Principle of adversarial process => adversarial presentation of proof for elements.
Burden of proof:
Burden of persuasion: the extent (i.e. the amount) to which jury must be convinced
of some proposition of fact in order to reach a verdict for that party that bears it.
Only comes in when ALL the evidence is in and trier of fact is evaluting all of it.
Burden of production: the responsibility of a party to produce evidence for a factual
proposition from which the fact finder COULD rationally decide in her favor.
MUST come in before trial, during investigation and discovery, or SJ (Celotex)
Starts from the moment the case begins
Rational inference:
Who bears the burden of persuasion in civil cases rarely SOLELY DETERMINES
the outcome because it is only when jury is DEAD EVEN on whether it is more
likely than not that Ps proposition is true => in this situation, because P bears
burden of persuasion (51%) must decide for D.
All things being equal, burden of persuasion triumphs
i.e. only come is when jury is not even the slightest bit leaning more on one side
E.g. Reid v. San Pedro(verdict should have been directed for D because P failed to
produce evidence from which a jury could decide her story was more likely than not
-- here P produced evidence pointed with equal force to P and Ds side)(p. 517)
Controlling the boundaries of jury rationality:
J.m.l. (Rule 50) vs. New trial (Rule 59)
Judgments as a matter of law (50)

Only on motion

Must be PRE-VERDICT

Only issue = adequacy of evidence

Was the burden of PRODUCTION
met?
DELAYED RULING (j.n.o.v.) = Replace
jurys verdict with judges judgment
Sometimes good to delay ruling, hope
that jury will return proper verdict, if
not judge can resuce by granting
j.n.o.v. -- Rule 50(b) -- in case of
appeal can reinstate jurys verdict)
Results in final judgment
And therefore immeidately appealable

New Trial (59)

On motion or judges initative
Reasons for new trial:
Flawed procedures:
e.g. erronous jury instructions,
failing to admit piece of evidence
Flawed verdicts
e.g. verdict is against the weight of
the evidence (NOT b/c judge herself
would have decided differently)
* this reason subject to more
scrutiny by appeals b/c judge to
some extent substitudes his
judgment on facts/credibility
Sends case to new jury
No final judgment if granted

 And therefore unappelable, unless

conditional as part of a j.n.o.v. order
50(b) allows party to ask for renewal motion for j.m.l. + new trial
50(c) lets court make new trial conditional
this result is appealable and allows appellate court to review all at once
Reasons for granting new trial:
NOT good reason in judge bases it on what she herself would have decided
Rather should view the verdict in overall setting of the trial, abstain from
interferring with verdict unless clear that jury has reached a seriously erroneous
result; judge can scrutiznes more if trial is long, complicated.
Avoiding having to make j.m.l. or new trial
Good jury instructions:
Balance beween easy to understand (for jury) vs. precision in susbstantive law (for
appelleate court)
New trials can be limited to issue of damages
* but the jduge must be believe that whatever caused the jury to erronously decide on
damages did not affect the rest of its judgment
Remittitur: judge can order a new trial unelss P agrees to accept reduced damages.
Not usually appealable, because P had a choice, accept remititur or prepare new trial
* but cannot order an additur (new trial unless mor dagages -- violates 7th amend b/c
gives an award that a jury NEVER made vs. modifying award)
AFTER the verdict -- JURY IMPEACHMENT:
Fed Rule Evidce 606(b):
ONLY admission of jury testimony to impeach a verdict is jury testimony relating to
EXTRANEOUS influences.
i.e. NOT for misunderstood instructions; NOT for mental processes
e.g. juror who drives by intersection on way home and tells jury => new trial
e.g. juror who lives by intersection and tells jury about it => NO new trial; juror
should have been screened out before!
Jusifications: by the time you get to trial, dealing w/ cases that could go eitehr way,
jury verict contain some soft variables come into play in deciding justice; too many
verdicts would be impeachable; integrity of serving on jury.
Ability to see a litle into the black box
Both are by JUDGEs discretion (special verdict rare)
Special verdicts: NO general verdict, reather series of questions about the evidence
=> 49(a)
General verdict + Answers to Interrogatories: jury returns general verdict and
answers. => 49(b)
If consistent => enter judgment
If answers are consistent but inconsisent w/ gen verdict => enter judg based on
answers or return to jury for reconsideration
If answers are inconsistent and one or more is insonsitent w/ gen verdict => return to
jury for reconsideraton or order a new trial.

-----FORMER ADJUDICATION
Policy Justifications:
Efficiency
Respect for judgments
Dont want to say one thing, have ppl reply on it, then issue another judgment that
contradicts this. (finality and consistency at least btwn same two parties)
Two main concepts:
Claim preclusion a.k.a. res judicata
Issue preclusion a.k.a. collateral estoppel
Claim Preclusion:
General concept: precludes a subsequent claim that SHOULD and COULD have been
brought in former litigation.
claim has a sufficient relationship to prior claim -- same factual info (efficiency)
already had a full and fair opptny to bring this claim....
General rule: Any claim or defense that arises out of the same t/o as the subject matter
at issue then it must be litigated now or it will be waived. (Frier)
Test is whether the FACTUAL info is sufficiently related (rather than legal theories)
i.e. is there a continuous story that can be told with the claims?
* as relationship between 2 claims become weaker then the efficiency gained from
combining them diminishes...
even if the second claim raises a different legal issue; see Frier (orignal claim for
replevin to get towed cars back; subsequent due process violation claim precluded)
here, potential meritorious claim that was never actually litigated (vs. simple claim
preclusion -- e.g. P recovers damages in suit #1; tries to sue for same injuries)
narrow approaches: same evidence; primary right
General rule: A claim that was not a compulsory counter-claim (thus waived if not
previously brought up) in a previous lawsuit will still be precluded if a decision on it
will threaten the integrity of the previous judgment (includes consent decrees) because
it attacks the very issue of the original claim (Martino).
Justification -- ppl rely on judgmnets, more of a concern than convenience
General rule: To determine the appropriate preclusion law to utlilize, the court in
which the second suit is brought must use the preclusion law of the court that issued
the original judgment.
EXCEPTION to this is that if a state court is looking at a federal court DIVERSITY
action then the preclusion law is the STATE law of the FORUM state.
BUT state preclusion law should not apply if it is INCOMPATIBLE with federal
interests (e.g. if fed court dismisses for failure to comp w/ discovery order, even if
state law would not have precluded this (unlikely) would have to b/c incompatible
with federal interests in keeping the effectiveness of its sanction system)

 In order for a claim to have be precludable, it had to have been capable of being
brought in the original. Thus, something that is related but hadnt arisen (installment
payments not yet due) or something the court couldnt reside over (court w/ no power
to grant equitable relief; actio brought under limited expediated proceedings)
Settlement in a consent decree counts as a judgment on the merits (Martino)
** if settlement is embodied in just a K -- preclusion law NOT applicable
note, can have contracutal defense if K included terms to prohibit another claim
Preclusion law is from common law...
Preclusion usually comes up when P is tyring to split lawsuits: bringing what should be
the same claim as two by: brining two diff theories of law, splitting up the damages
award; splitting the kinds of remedies sought.
E.g. splitting damages see Rush v. City of Maple Heights (P precluded from brining
subsequent personal injury claim b/c she already awarded damages in ppty damage
for the same accident.
Related issues/rules:
Same result -- diff reason for preclusion: 13(a) is a codified version of precusion
relating to compulsory counter-claims... but in this rule one must have to filed a
PLEADING in order to have waived a compulsory counter-claim that wasnt
included in the pleading. (Martino)
Doesnt preclude different parties from brining separate suits -- but in some caes
compulsory joinder => Rule 19
If added claim brings w/ it too much complexity, etc. the court can always sever
claims into separate trials => Rule 42(b)
Claim Preclusion applied:
In original lawsuit: As attny need to do your research, investigate in order to
discover the SCOPE of the matter at hand and the possible claims that COULD arise
out of it.
Determining whether precluded: what is the scope of the preclusion law in the juris
that rendered the judgment?
Between same parties:
Preclusion binds ONLY parties, does not bind separate individs who also have interests
arising out of same t/o (due process marks boundaries of preclusion)
In order for preclusion to apply (claim or issue) must have been a party in the orginal
or been in privity with orignal party
privity means the substantive law of the relationshp considers A a substitute for B,
B will be bound by jdugments in which A participated; or established by express
agreement (i.e. a K); or virtual representation (class laswuit, guardian for minor,
possible that person who guided/controlled lawsuit can be considered a party)
If no strong legal relationship exists party is not bound by prior judgment. See
Searle Brothers (bros not bound by prior judgment giving ppty to mother b/c not
sufficient legal relationship w/ orignal party (biz partners w/ their father) even
though they actively participated in the lawsuit)

 Note, though subsequent litigant, not a party will not be precluded, does have to worry
about PRECEDENT (i.e. difficult case)
Note, if you see something like this coming, ask for continuance on current suit => get
a judgment that binds all parties invovled.
Judgment having preclusive effect must be:
Final judgment on the merits
Fed court treasts 12(b)(6) dismissal as on the merits; state court varies (CA does not
under Keidatz)
Diversity claims get confusing b/c have to apply preclusion law of forum state
Gargallo:
Ps case was dismissed by OH state court for violating discovery rules,
subsequently brought suit arising under fed statute in fed court
Preclusive law: fed court applies preclusive law of state rendering judgment (OH)
But b/c the same fed statute was at issue b4, #1 shoud not have been in state court
Court has to evaluate how OH preclusion law would have treated a judgment from
a court that lacked juris over the matter
Court concludes by OH law -- judgment by court that had no subj matter juris over
the action has no preclusive effect
P allowed to continue his suit in fed court, no preclusion.
Judgments Claims that SHOULD NOT be given preclusive effect = juris dmismissal
Preclusion cases:
1. look first => is the CLAIM precluded?
2. if not, is there an issue that is precluded?
ISSUE PRECLUSION
* like claim preclusion in that it involves fact; goal is to prevent inconsistent findings in
subsequent litigation
Black letter law + Parklane (incentive prong):
Determination on an issue is precluded in subsequent actions btwn parites when:
Same issue of fact or law in both cases
Need to look at the CONTEXT of the issue in both cases (e.g. civil/criminal
burdens of proof)
Are the PROCEDURAL settings sufficiently similar?
Does the issue mean the same thing in both contexts?
E.g. fraud in admin hearing vs. a civil trial
Where parties had adequate incentive and opptny to litigate issue (Parklane)
Was ACTUALLY litigated and determined by
May be satisfied by substantial participation in adversary contenst where party had
opptny to defend himself on the merits but chose not to (In re Sammy Daily)
* diff than claim preclusion where preclusion applies even if never litigated (Frier)
A valid and final judgment, and
The determination was essential to the judgment

 Where a judgment has two issues that were alternative grounds for the decision =>
NEITHER issue is precluded (Parks)
E.g. Dismissal because of no personal juris; no fed question
E.g. no award for loss consort because either no compen damages or no injury
E.g: Even if you had a bench trial and judge decided:
No loss of consort claim because J was contributorily neg AND he failed to prove
compensatory damages.
In later suit, issue of whether J was contr. neg is NOT precluded because there was
alternative grounds for which to base the decision.
Justification: More things went into the calculation
NON-MUTUAL Issue Preclusion:
1. P v. D => judgment for P, D found to be neg
2. P2 v. D => is D precluded from contesting neg? DEPENDS
See Parklane (D precluded from relitigating whether it has issued a materially false
and miselading statement in connetion w/ a merger against plaintiff stockholder class
where the issue had previously adversely decided against them in lawsuit brought by
the Securities & Exchange Commission; D had opptny to fully/fairly litigate issue)
*SC has said fed trial courts determine on case-by-case basis (Parklane)
note, that this is holding on a fed statute, making FED common law of
preclusion for FED courts -- i.e. this DOES NOT affect state courts
Factor to consider: (Parklane)
Whether P2 could have joined in earlier lawsuit
Whether there was incentive to fully and vigorously litigate
Whether there are inconsistent previous decisions
Whether there are diffs in procedural opportunities likely to cause diff results
Justification for allowing preclusion: D had a full and fair opptny to litigate the issue
(diff from 75 yrs ago, b4 like claim preclusion had to involve the same parties - or
mutuality like privity)
Note, if D had won #1, P2 wouldnt be precluded from showing Ds neg because
P2 was not given a opptny to show neg (due process)
EXCEPTION: non-mutual issue-preclusion (like in Parklane) NOT applicable to the
U.S. gov.
Century Home Components (concluded in FIRE case that since several lawsuits had
come out w/ varying results, issue preclusion should not apply)
Paradox: doctrine aimed at achieving consistency of judgments creates incentives to
have no judgmnets at all (i.e. encourage settlement)
Excpetions:
Claim preclusion: changed law/precedent, express agreements to allow claim splitting
Issue preclusion: change in the applicable legal context, diffs in context (limited juris,
civil/criminal), a partial SJ has no preclusive effect if case never makes it to final
judgment.
public interest may call for application of issue preclusion for uniformity
Issue preclusion btw/ parties in a case:

 law of the case (one shot at appeal for legal contention -- necessary, remember party
can appeal from order involving injunction though not a final judgment could be
never-ending appeals).
Judicial estoppel: once a party takes a position of a FACTUAL contention under
oath, the party benefitted from the courts adoptoin of its factual contention, and it
was done intentionally to mislead => estopped from taking an inconsistent position
Not all courts use this.
Full Faith and Credit
1738 + Article IV of the const: ensures that any court gives judgments from sistercourts the full-faith and credit that they would be given in the sister-court juris itself.
This includes the sister-courts preclusion laws.
Juris issues pose an interesting prob -- because they are issues of whether a
claim/person is rightfully before a court.
A court must give a sister courts judgment full-faith and credit even on juris issue
(personl and SMJ) IF the issue was fully and faily litigated in the original action
(Durfee v. Duck).
However, this creates a hole, if the person who wants to challenge juris doesnt appear
and doesnt litigate the issue she can possibly do a collateral attack.
Revisist after personal juris section but main thing to know is that once a party has the
fully OPPORTUNITY to contest an issue then she is bound by that. In some cases the
opptny will have been enough, those was not actually litigated. To be continued...
However, there are excpetions to being bound to a judgment => 60
This rule provides under LIMITED circumstances, the ability to back to the
ORIGINAL court and get cliam re-opened.
* this does not allow a party to go to different court to get case re-opened.
Although this rule does not make a distinction between default/full judgments, in
practice easier to re-open default judgments.
This ensures that ppl are not bound to a horrible judgment but makes it hard enough to
re-open a judgment that still provides certainty in the system. Ppl have to be able to go
on w/ their lives and rely on a judgment once it is given.
There are certain situations relating to issues of evidence at trial (fraud, mistake, etc)
that can be brought up BUT have a 1 yr s.o.l.
PERSONAL JURIS
Qualification to the FFC:
doctrine of collateral attack: state Y need not give a judgment by state X FFC if state
x did not have juris to render such judgment (personal juris and sbj)
Pennoyer: early case established the need for a court to establish personal juris over a
person b4 binding him to a judgment.
Collateral-attack = the ability for a person to challenge in court Y - the validity of a
judgment rendered by court X for lack of personal juris so long as the person never
appeared to challenge the juris issue.

 Underlying issues: due process of the 14th (state cant bind someone w/ giving them
due process -- need personal juris as part of that); sovereignty (states have pwr w/in
their own territories, are allowed to reguate civil matters w/in -- status of its citizens,
right to K, how one can K, how one can transfer ppty, etc)
Due process limits the power of fed courts to reside over some cases
SMJ:
Unlike personal juris where fed = state (based on Ds relationship to the forum state
regarldess of whether suit is brought in state/fed court)
SMJ is particular to a court -- basically fed court has limited juris -- this is due to the
principle prominent throughout const that fed gov is of limited enumberated pwr.
Aricle III establishes the pwr of fed courts -- SC and says congress can set up
additional org
1331 statute that sets up fed districts courts. Gives it subset of smj that article III
gives to the fed courts.
SMJ v. personal
Diff for state and fed courts v. fed=state
Can be raised at any time during the indiv life of the lawsuit v. rasied first time or
waived => see 12(h)
Motley (SC dismissed case on appeal from fed trial court judgment b/c no SMJ to
hear claim -- Ps sought speific perf of their K that that D was refusing to honor due
to fed statute)(p. 171)
Claiimarising under fed law, const, treateies
Must be apparent from Ps pleading
i.e. SMJ cannot be based on anticipated defense
questions to ask:
1. is there a federal issue at all?
2. if so, does Ps claim arise from it?
--------Joinder notes
Step 1:
Can I add this claim? figure out rule that governs, and the tersm of that rule.
If it doesnt let you add, you are done.
Step 2: if so are there juris issues?
Fed juris over added claim or party?
Original juris?
If not, supp juris?
Is there personal juris over added party?
Rule 15 governs the timing allowed for P joining parties and for D to makes cross-claims:

After the pleading has been answered, amendment must be made by leave of court of
written consent of adverse party -- leave shall be freely given when justice so requires
courts discretion.
Initial pleading between P and D: Rule 8
If D wants to cross-claim: Rule 13
If A wants to add defendants: Rule 20
Remember when P want to add parties, make these changes, have to amend, and this
evokes Rule 15.
a time-line for a cross-claim?
The counter-claim is part of the answer.
If not added during answer, 13(f) establishes that this would have to be added as an
amendment => evokes Rule 15.
-----Reconciling 18(a) with R 20, 13(g), and 14, and others.
18(a) applies if there is no other, more restrictive rule governing this situation.
18(a) is a broad, general provision. But in many situations, there will be other rules
that govern the situation.
If there is, that Rule (e.g. Rule 20, Rule 13(g)), applies to the first claim asserted.
Thereafter, Rule 18 allows additional unrelated claims.
*BUT there may be juris issues with unrelated claims.
Note, that the court will always have the ability to sever claims (try them separately)
if it deems it necessary. Or if the claims are not appropriate to be in the fed court (no
juris) the court will throw it out.
Taking Mosley one step further:
how is GM going to win this case? They have a killer defense.
Claim preclusion!!
Yaz: this hypo makes it clear because the plaintiffs are the SAME plaintiffs.
If the plaintiffs are diff... then they cannot be barred because they were not a party
-- due process -- no prior opptny to be heard.
If class action... would be issue of whether adequately represented
Rule 13& 18
A v. B & C
i.e. if B and C are both defendants; and B asserts a cross-claim against C (under
Rule 13), to make its own cross-claim C must first assert a cross-claim (under
Rule 13), then any ADDITIONAL claims C has against B may be joined (under
Rule 18).
But we might have juris prob -- likely state law issue => so may have to be
brought under state court.
It is WRONG to use 18(a) BEFORE a party has asserted an original claim (whether
claim, cross-claim, etc).

Rule 14 allows D to bring in an additional party

Must be for derivative liability ifIm liable, you are at fault too and must reiumburse
me for all or part of anything I have to pay, i.e. CANNOT be a it was him, not me
claim.
Must have claim for indemnity/contribution under substantive law
Allows briningin party who wil help foot the damages & way to delay case
* this does nothing for P
so if farmer (AL) v. Contractor (IL) impleads Nails (AL) => P cant add claim against
nail.
so if farmer (AL) v. Contractor (IL) impleads Nails (IL) => P can add claim against
nails
so if farmer (AL) v. Contractor (IL) impleads Nails (IL) => contratator can implead
nails and still have SMJ b/c since properly impleaded deals with same t/o => then
1367(a) gives supp juris and 1367(b) doesnt take any back b/c w/ diversity action only
takes back supp juris for cliam by PLAINTIFF.
Impleading and SMJ
1st stage:
if A v. B based on a federal claim.
whenever there is a properly impleaded 3rd party C, i.e. B => C
there will always be supp juris over that 3rd party C -- 1367(a)
2nd stage:
A v. B based on federal claim
Rule 14 says once 3rd party C, is in the case you can start doing other things.
If A (original plaintiff) has a claim against C that arises out of same t/o -- and the claim
itself is a federal claim.
There will always be supp juris over A-C claim because 1367(a) says so.
3rd stage:
But if the orignal claim A (CA) v. B (NV) is dependent entirely on DIVERSITY.
Now if B impleads C through Rule 14.
Now an A => C claim will NOT have supp federal juris.
In this situation, where C is brought in and is a party, can you serve him w/
interrogatories? Seems so...
Says may serve any party doesnt say opposing party, but hasnt really been decided,
court could construe as such...