Outline for Civil Procedure

Table of Contents

I. Due Process
II. Pleading
a. Complaint
b. Specificity in Pleading
c. Ethical Limitations in Pleading
d. Responding to the Complaint
e. Amendments to Pleadings
III. Discovery
a. Relevance
b. Preservation & Spoliation
c. Procedures & Methods
d. Privilege & Work Product
e. Experts & Privacy
f. Exams
g. Discovery Abuses
IV. Resolution without Trial
a. Default & Voluntary Dismissal & Involuntary Dismissal
b. Summary Judgment
c. Judicial Management
V. Trial
a. Right to Jury Trial
b. Choosing Juries
c. Judgment &Renewed Judgment as Matter of Law
d. New Trial Motion
VI. Appeal
a. Who can appeal
b. Final Judgment Rule
c. Exceptions to Final Judgment Rule
d. Scope of Review
 Litigation Timeline
 
 Pleading-Complaints and changes in responses
 Discovery
 Pretrial motions/Resolution without trial
 Trial
 Post-trial motions (motion for new trial, judge etc.)
 Appeal

Quick Reference—Rules
Rule 7—7(a) 7 Pleadings Allowed

Rule 8: General Rules of Pleading/Affirmative Defenses—pg. 2

Rule 9-Pleading Special Matters
Rule 11- Ethical Limitations—APPLY TO COUNSEL

Rule 12-Defenses and Objections/ Pre-answer Motions-pg. 2

Rule 16—Pre-trial Conferences; Scheduling; Management

Rule 15—Amending an Answer and Relation Back

Rule 26—Duty to Disclose; General Provisions Governing Discovery

Rule 27—Depositions to Perpetuate Discovery

Rule 28—Persons before Whom Depositions May Be Taken

Rule 29—Stipulations about Discovery Procedure

Rule 30—Oral Depositions

Rule 31—Depositions by Written Questions

Rule 32—Using Depositions in Court Proceedings

Rule 33—Interrogatories

Rule 34—Electronic Documents

Rule 35—Physical and Mental Examinations

Rule 36—Requests for Admission

Rule 37—Discovery Sanctions

Rule 47—Selecting Jurors

Rule 48---Number of Jurors; Verdict, Polling

Rule 50—Different JML’s

Rule 52--- Findings and Conclusions by the Court; Judgment on Partial Findings

Rule 54—Judgment; Costs

Rule 56—Summary Judgment

Rule 57-Governs Procedure

Rule 58---Entering Judgment

Rule 59---New Trial; Altering or Amending Judgment

Rule 61—Harmless Error

Rule 65: Governs procedure of TROs and preliminary injunctions--Proceedings against a Surety—pg. 1

28 U.S.C. §§1291-1292: “The courts of appeals ... shall have jurisdiction of appeals from all final
decisions of the district courts of the United States ....”

28 U.S.C. §§ 1861-1870: Selection pools are to Represent:

28 U.S.C. §§2201-2202: Allows parties to seek declaration of rights without seeking damages or specific
relief
 I. Due Process
1. Due Process Clause of 14th Amendment: "nor shall any State deprive any person of life, liberty, or
property, without due process of law"
Have to give:
 Notice
 Chance to be heard before deprivation occurs

Protects you from STATE deprivation, not private enterprises (ex. repossessing a car)

Temporary Restraining Orders: TRO’s

 Can be granted without notice in some circumstances

Ex. Battered spouse
o Under Rule 65(b), some provisions are constitutionally required:
o Must explain why notice couldn’t be given
o You must get a quick post seizure hearing

Preliminary Injunction Test

1. Plaintiff will suffer irreparable injury if injunctive relief is not granted;

2. Plaintiff will likely prevail on merits;
3. In balancing the equities, defendant will not be harmed more than plaintiff is helped by the injunction;
and
4. Granting the injunction is in the public interest

Fuentes v Shevin Gas stove seized by Firestone

o Supreme court “repossession without notice and the opportunity to be heard violates due process of law”
o Must be notice and a hearing
o Due process is not concerned about efficiency, focused on maintaining one's constitutional right
 Regardless of P being right, and if D would take opportunity to be heard
 Cannot seize one’s goods without notifying them, and giving them chance to be heard

Mathews v Eldridge When and what sort of hearing, required by Due Process
Three Factors That Determine Whether One Has Received Due Process:

1. Private interest that will be affected by the official action

2. Risk of erroneous deprivation of interest through procedures used, and probable value of
additional procedures
3. Government’s interest, including function involved and fiscal and administrative burdens
of additional procedural safeguards
 Weighing these 3 concerns helps a court
determine if it has met the requirements. Pleading
Process

II. Pleading 1
.
File 7(a) pleading
based on 8(a)
standards
2 Satisfy Twombley
. and Iqbal
3 Satisfy 9(b) if
. applicable
RULE 7 (a)

a) “Only these pleadings are allowed:

1) a complaint;
2) an answer to a complaint;
3) an answer to a counterclaim designated as a counterclaim;
4) an answer to a cross claim;
5) a third-party complaint;
6) An answer to a third-party complaint; and if the court orders one, a reply to an answer.”

a. The Complaint

The Well-Pleaded Complaint

Rule 8(a)--
Three pleading requirements:
1. Jurisdictional Statement
2. Short and plain statement showing entitled to relief
3. Demand for judgment for relief
 How can a claim fail to satisfy Rule 8(a)?
o Bad drafting-ex. Failure to invoke a body of law, failed to ask for relief, no
facts: Twombly & Iqbol
o Law does not afford any remedy on the stated facts
o Other reasons?
 A claim can fail under 8(a) when:
o Bad drafting, does not invoke a body of law, or if law does not afford a
remedy under the facts

Inconsistent Pleading

 Permitted under Rule 8(d)(2-3)

 Because pleader may not know all true facts yet

Challenging the Complaint-“Pleas”

 o 6 Challenges to Complaint
 Jurisdiction
 Suspension
 Abatement
 Demurrer
 Traverse
 Confession and Avoidance
 First three focus on correct venue

 
Haddle v Garrison ---Rule 12(b) (6) Motion

 Defendant filed a motion to dismiss for failure to state a claim upon which relief can be
granted.
 Court assumes that everything within complaint is true, but court cannot consider any
evidence.
 Defendant argued that complaint did not state a claim because an “at will” job is not
property
 Supreme court reversed and remanded, finding that employment is "property" within
meaning of statute
o “Harm to your property” occurred based on 42 § U.S.C. 1985 (2)
 b. Specificity in Pleading
Bell Atlantic v. TWOMBLY  P alleges “price fixing”
Rule 8(a), Rule 9(b) (c)

 Plaintiffs allege antitrust lawscollusion with competitors to monopolize the market

 Claim that Bell has colluded a monopoly
 Antitrust law allows inference of conspiracy from behavior but it cannot be drawn
from actions that are typical of a profit-maximizing, non-collusive competitor.
 Ex. All bread companies raise prices by the same amount on the same day
 Not collusion (prices of wheat go up?)
 May be collusion if there is more than the fact that the price of flour
rose
 Twombly ruling requires pleading to include some fact supporting allegation
 Plaintiff needs to provide evidence of “overt act” showing collusion, instead
only provided conclusory allegations.
 “Factual allegations must raise a right to relief”

 Rule 8(a) Have to SHOW actual evidence of a possible violation of antitrust laws. (if the evidence is
given the benefit of the doubt to be true)

 Court “Needs to be specific. Needs to be more factual.”

 Plaintiff shows nothing more than parallelism, not actual actions that would suggest conspiracy.
o Courts have said that Twombly ruling is specifically required for Anti-trust cases
 Special pleading standard for Anti-Trust cases
 Cause these cases are expensive and expansive

Ashcroft v Iqbal Iqbal claims he is detained based on discrimination (race, religion etc.)

 In order for the plaintiff to properly assert his claims, must prove Ashcroft and Mueller
purposefully intended to discriminate when they implemented policy.
 Why did the complaint fail?
o The allegation that FBI detained specifically because of race/religion is only
conclusory. No factual evidence.

o Like Twombly, there is parallelism of actions. That is coincidental, not reflective.

 The factual link to show intent was missing

Additionally, no showing of entitlement to relief

  Iqbal would have to prove that they implemented detention policy for the purpose of
discriminatory intent. (you locked me up solely because I'm of Arab ethnicity)
 That they personally ordered the detaining BECAUSE of a discriminatory manner.
 Discriminatory intent must be shown to the court

Iqbal’s complaint fails to comply with Rule 8(a)

 NEED TO STATE FACTS THAT WOULD LEAD TO A VALID
CONCLUSION

Court Quote:“Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.”

What do Twombly and Iqbal mean for plaintiff's attorneys?

o That you have to plead facts, not just conclusive allegations
o What about defendant's attorneys?
 That they need to make sure that the plaintiffs are presenting enough information to state their
claim.
 This really doesn't impact personal injury or contracts and all the other types of claims, because
there is typically proof with those types of claims.

Stradford v Zurich Insurance Co.-->Rule 9 (b)

Background Plaintiff was dentist who lapsed on his insurance premiums, paid overdue premiums, then
submitted claims for pipe damage that occurred during lapse.

o Why did the court dismiss the counterclaim (claim of fraud by the insurance company)
 Because of Rule 9(b)-“Pleading Special Matters”
 "In alleging fraud or mistake a party must state with particularity the circumstances
constituting fraud or mistake"
 Insurance company never actually stated that what he did constituted fraud or when it
occurred.
 Ex. Would want to address the dentists lies to "no claims" during the lapse
 Court allows insurance claim to amend their claim
 Insurance company submits a motion for summary judgment. Stating that plaintiff
committed breach of contract by interfering with investigation of the claim
o Would have to include 9(f)

Heightened Pleading—Necessities when pleading “special matters”

FRCP 9(b) requires specific facts when pleading for claims of fraud and mistake

Reduces the types of cases to hopefully "weed out" the "bogus" claims

 In essence though, we are favoring certain types of claims.

Allocating the elements

o 3 Burdens
  Pleading
 Production
 Proof/Persuasion
 P has burden on his claims
 D has burden on counterclaims and affirmative defenses (Rule 8(c)(1) )

 
Jones v Bock
Background Prisoner claiming poor treatment after making requests for help.
o Where does the exhaustion requirement arise?
 Have to conduct all administrative remedies before moving forward
 We want prisoner complaints to be handled internally first, then move forward if
all internal options exhausted
 Court “Exhaustion is an appropriate affirmative defense, but P does not have burden of
proof of providing this during his pleading.
 Could be a stumbling block for the plaintiff if the burden to prove is placed upon
him, and he is unable to.
 c. Ethical Limitations in Pleading-Rule 11
Elements of Rule 11—Apply to Counsel

(a)-Signature: all pleadings, written motions, and other papers to the court must be signed by the
attorney
(b) Representation to Court: the attorney acknowledges that to the best of his knowledge, all
claims have been investigated and are believed to be valid

1. FRCP 11(b)(1) requires that the motivation behind the filing may not be sinister in that it
is meant to drive up litigation costs or needlessly delay the litigation.
2. FRCP 11(b)(2) requires soundness of legal arguments. The rule does not simply permit
arguments soundly based on existing law, but also permits arguments that argue for a
change in the law if those arguments are “nonfrivolous”.
3. FRCP 11(b)(3) requires some basis for factual allegations made in the pleadings. either in
evidence known to counsel or in evidence expected to be discovered by counsel.
4. FRCP 11(b)(4) requires an evidentiary basis for denials of factual allegations.

(c) Enforcement of Rule 11(b) and Sanctions

(d) Above three rules “are not applicable to the discovery process”

Walker v Norwest Breach of fiduciary duty is alleged---

o What part of Rule 11(b) was violated?
 That the case is warranted based on existing law, it wasn't.
o Was a motion for Rule 11 sanctions immediately filed with the court?
 Does that comply?
 No, you have to draft the motion. Serve them with it. And give them 21 days to
fix the problem. 
o District court's ruling? Appellate court?
 Did invoke sanctions, also
o How does Massey fix the problem?
o Could actually investigate to figure out what state the citizens are from  
o If the court notices you violated Rule 11, they can give you sanctions without giving you the
opportunity to fix it. There is no required "safe harbor".
 
 
Christian v Mattel  USC Barbie Doll –
 
  Mattel offered Hicks opportunity to withdraw suit, Hicks declined to withdraw during 21 day “safe
harbor” pursuant to Rule 11
o Rule 11(c) motion ultimately remanded

Sanctions
 Discretion of court to impose (order must describe basis of violation and sanction)

 Limited to what is sufficient to deter repetition of such conduct

 Monetary sanction presumptively paid to court

 Look at advisory committee notes for variety of possible sanctions

 Law firm jointly responsible for violations by its attorneys

 Monetary sanction cannot be imposed against a represented party for violating Rule 11(b)(2)
 d. Responding to the Complaint
Options for Defendant's Response:

 Do nothing-default
 Pre-answer motion—Rule 12 (b (1-6), e & f)—permitted pre-answer motions
 Answer
o Admit
o Deny-be specific Rule 8(b) (2,3,4)
o Deny because lack knowledge…-Rule 8(b)(5)
o No response, then deemed admitted - Rule 8 (b)(6)
o Defenses
1. Affirmative defenses - Rule 8 (c), right is waived if you fail to plead---NEED TO KNOW
ELEMENTS OF 8C
2. Counterclaims or cross-claims—Rule 13
 Answer to designated counterclaim or cross-claim-Rule 7(a)

Rule 12 Motions

Rule 12(b): Defense Motions:

1) Subject matter jurisdiction

2) Personal Jurisdiction

3) Improper venue

4) Insufficiency of process

5) Insufficient Service of process

6) Failure to state a claim upon which relief can be granted

7) Failure to join a party under Rule 19
Rule 12 (c): Judgment on the Pleadings
Rule 12 (e): Motion for a more definite statement/pleading (pleading is too ambiguous)
Rule 12 (f): Motion to have defense stricken—rarely used
Rule 12 (g): Can “join motions”. Only 1 pre-answer motion can be filed
Rule 12 (h) (1): Disfavored defenses-Party waives 12(b) (2)-(5) motions if not raised in first response
Rule 12 (h) (2): Favored defenses-12 (b)(6), 12(b)(7) and (8 (b)(1)(A) can be raised: in any 7(a) pleading, by
12(c) motion, or @ trial
Rule 12 (h) (3): Most favored defenses-can bring at any time-lacking subject-matter jurisdiction

Zielinkski v Philadelphia Piers, Inc. -->Who owns the forklift?

o PPI was not specific in its denials.

o CCI actually company liable
o Court holds PPI responsible for actions of CCI’s employee because SOL had run up, and would prevent
Zielinski from recovery. 
“In such a case, the defendant should make clear just what he is denying and what he is admitting."
o Plaintiff interprets this to mean that PPI is denying any negligence.

e. Amendments—Rule 15
Amending an Answer

o Rule 15(a): Defendant may amend once: “Leave shall be freely given when
justice so requires”
o Why might a court deny leave to amend?
o Prejudice to the other party
o Bad faith is demonstrated by the party requesting to amend
o Indication that there would be undo delay as a result

Amendments as a matter of course

Rule 15(a) (1)--Allowed without permission of opponent or court
Amendments NOT as a matter of course:

Rule 15(a) (2)--only with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.

Time to Respond: Rule 15(a) (3)--Any required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after service of the amended pleading,
whichever is later.”

Beeck v Aquaslide
 
 Aquaslide admits to manufacturing the slide, later find out it’s a “knock off”
o Aquaslide amends
o Plaintiff argues that it is past the SOL for defendant to amend answer.
 
 o What does Rule 15(a)(2) say about this?
 Amendment to be allowed if the other party agrees or if justice requires it.
o Court allows amendment, to be sure that D is the right company

Relation Back of Amendments ONLY DONE WHEN SOL HAS RUN UP

IF JUST ADDING A CLAIM--When filing AFTER SOL has run- Must satisfy Rule 15(a) to amend, and you
must satisfy Rule 15(c) (1) (B)

 
When Changing a Party:
 Must satisfy Rule 15 (a);
 Must satisfy Rule 15(c) (1)(B); and
 Under Rule 15 (c) (1) (c) new party must have
1) Received such notice of action it will not be prejudiced on defending on the
merits
2) Knew or should have known that the action would have been brought against
it

Reasons SOL exists:

1. Don’t want “stale claims”
2. So D can eventually put matter behind them.
3. To protect courts from dealing with claims that become more complicated over time
 
 

DIFFERENCE BETWEEN BEECK AND ZIELINSKI

Beeck took too long to amend; because it was delayed discovery that aquaslide didn't in fact manufacture the slide.
o Could hold aquaslide liable for a “knock off”
 If not, they'd be tried for someone else’s slide.
 
o Different than Zielinski in that Zielinski was a matter of an employee of PPI or CCI, depending on time of
accident. 
o In Zielinski, the defendants should have known that the wrong company was being charged.
o Whereas in Beeck, it was more reasonable for Aquaslide to believe that it was in fact their slide and not a
counterfeit.

Moore v BakerP changing/adding claims against doctor—Did not satisfy Rule 15(c) (1) (B)
 
o Initial claim: violation of informed consent
o Then wants to add negligence
o Court does not allow it,
 Violation of informed consent claim does not give any notice (Rule 15(c) (1)) in regards
to the negligence claim. Claims are unrelated (negligence claim cannot be related back)
 These are two distinct transactions, separated by time. 
 Plaintiff gave no notice that there was going to be a complaint regarding any issue related
to negligence by the doctor.
  
 
Bonerb v Richard Caron Foundation
o Original complaint:
 Plaintiff claims that the basketball court was negligently maintained by the Rehab Center.
o Added complaint:
 Then tries to add a claim of counseling malpractice.
 
o Court allows amendment:
 Believes that the new claim stems out of the original claim in some manner.
 The two claims are related in the fact that the exercises to be on the basketball court were
mandatory and failure to exercise proper supervision over plaintiff is a matter of both
negligence and counseling malpractice.
 
 Court believes that given the content of the original claim that the new claim does relate.
 
o Why is this different than Moore?
 Moore had already closed discovery, and in Bonerb, discovery had not taken place yet.
 In Moore, summary judgment had already been motioned for, and then Moore tries to "keep it
alive".
 TIMING when you choose to amend is very important. "You've known about this the whole
time, why are you just now bringing this up?"
 
Moore started with a very narrow claim, and amended to add a much bigger claim that took place at a different
time (pre-surgery v during/post surgery) than the original claim too. –Almost two entirely different cases
(different time/acts etc.)
 
Bonerb, they started with the larger claim, and essentially added another claim for negligence.
Relying on the same facts, just adding a similar claim.
 
STILL MUST SATISFY 15(A)
ONLY DO RELATION BACK ANAYLSIS WHEN THE STATUTE OF LIMITATIONS
HAS RUN.
 III. Discovery
GOALS OF DISCOVERY
o Enable parties to obtain facts and present cases
o Narrow in on issues in controversy
o Preserve relevant information that might not be available at trial
o Promote settlement by allowing parties to assess value of case and likelihood of success
o Make available information on which case can be disposed of in whole or in part before
trial

Tools of Discovery
 Planning meeting—Rule 26(f)
 Required Disclosures—initial & experts—Rule 26(a)(1-2)
 Document requests—Rule 26(b)(3) and 34
 Interrogatories—Rule 33
 Depositions—Rule 32
 Examinations—Rule 35
 Required Expert Disclosures--
 Requests for Admission—Rule 36
  Enforcement of Discovery—Rule 37

Limits on Discovery
 Relevance—Rule 26(b)
 Privilege—Rule 26(b)
 Work Product—Rule 26(b)(3), Hickman
 Privacy/Burden/Harassment/Embarrassment—Protective orders—Rule 26 (c)
o You can object or seek a protective order from a court
 Non-testifying experts—Rule 26 (b) (4) (B)
 Limitations--Rule 26 (b)(2)(c)
 Enforcement

a. Relevance
Relevance: Rule 26(b) (1)
o In order to be granted discovery, information must be relevant to a claim or defense, or if given judicial
permission, relevant to the "subject matter" of the lawsuit.
o For information to be relevant, it must either prove or disprove something the governing body of law
believes matters.
o If the information doesn't matter (irrelevant) than it will not be considered permissible
evidence.
 Ex. Contract on sale of goods, defendant contends he didn't pay because goods were
defective (relevant)
o Contract on sale of goods, defendant contends he didn’t pay because he used the
money on his sick uncle; uncle's health condition is irrelevant.

 
 
Davis v Precoat Metals
 Plaintiffs allege that they have been subjected to racial insults and derogatory comments
 Plaintiffs also claim discrimination in terms of entry level placement, work assignments, promotions, and
disciplinary measures after plaintiffs complained about discriminatory practices 

 Plaintiff's motion to compel discovery.

 Want access to privileged records
 But want specific records—only those related to discrimination complaints from other workers
and in other factories. 
  Defendant argues two cases Chavez and Sidari in its defense.
 Court finds that neither case is similar.
 Court believes information sought after by P is relevant

Steffan v Cheney Suggested discharge of homosexual in the Army

 Steffan resigns after discharge is recommended for admitting that he is a homosexual
o Asked whether or not he has ever engaged in homosexual acts.
 Steffan's counsel “pleads the 5th Amendment” on Steffan's behalf
 
o Trial court dismisses the case. Stating that he essentially admits that he did, and because so, his discharge
stands.
 
He appeals.
Court of Appeals:
Believes that his acts of homosexuality were irrelevant in regards to why he was "constructively discharged".
 
 The only relevant matter is the reason the government wanted to discharge him.
 
 The only way you can defend what action the government has taken is by disputing the reason for those actions.
 

Both Steffan and Davis determine what is relevant to the substantive law 

b. Preservation & Spoliation

 Destruction or material alteration of evidence or failure to preserve for possible use of evidence.
 Duty not to destroy evidence
 Duty to preserve evidence
 Especially after you have gained advantage from that evidence
 The right to impose sanctions for spoliation arises from a court’s inherent power to control the judicial
process and litigation.
 Limits: Only applies to potential litigants when litigation is reasonably foreseeable.
 No independent tort action for spoliation.
 No general civil duty against spoliation.

Silvestri v General Motors Car crash of borrowed car

 
 Lawsuit is filed 3yrs later, and lawyer suggests they allow GM to inspect the car.
o Car was fixed before it could be inspected
 
 Court uses its inherent power because the plaintiff has denied the defendant access to defend themselves by not
preserving the key evidence.
o P has had an inspection completed, but not given D the same right.
 
 If GM had been given notice that the car was going to be fixed and failed to respond in time. Then there would be
no valid claim for Spoliation.
 c. Procedures & Methods
Timeline for Discovery

 Defendant is served, appears in lawsuit

 Court sets Rule 16(b) scheduling conference within 90 days after defendant's appearance or 120 days after
defendant is served
 At least 21 days before scheduling conference, parties hold Rule 26 (f) planning conference
 At planning conference or 14 days after, parties exchange initial disclosures/discoveries--Rule 26(a)(1)(c)
 After conference, parties may serve discovery requests--Rule 26(d)(1)
 
Surveying the Stages of Discovery
  
Rule 26 is master rule for DISCOVERY
 Providing catalog of disclosure and discovery methods; also defines "ground rules".
o "Ground rules" establish three stages:
1. A requirement of mandatory disclosure (26(a))
2. Provision for further discovery without any special showing (limited by relevance to "any party's
claim or defense")
3. Provision for broader discovery (subject matter) if party demonstrates "good cause"
 
 
INITIAL DISCLOSURES
 
  Described by Rule 26 as the first stage
o "Required disclosures" can also be broken into stages
i. "Initial Disclosure"
1. Rule 26(a)(1)- information that disclosing party may use to support its claim or defense
a. Ex. Names, locations of witnesses and descriptions and location of documents,
calculations of damages, copies of insurance agreements
i. "unless solely for impeachment"—evidence to contradict what the other
side is saying—attacking credibility
a. Must disclose your calculation for all the damages you are seeking
b. Copies of insurance policies
1. This information must be exchanged without having been requested
2. Based on cooperation by parties

Rule 26 (e)—Disclosure must be supplemented if later found to be incomplete

INTERROGATORIES—Rule 33
o Only to parties of the suit
o Limited to serving 25 interrogatories
o Must state objections with specificity
o Option to produce business records
o Downside to using these?
o Cannot ask follow up questions
o Attorney answers them, not the client

 Will initially show the others sides "strategy"

o Can evolve from inexpensive for the "discoverer" to more expensive
o From written exchanges to oral questioning
 
 Interrogatories are typically cheaper.
o Interrogator can draft up a list of questions, send it, and wait for a response.
o Can either serve not much purpose--if routine questions for routine answers or:
 Can serve a lot of purpose--disclosing persons, things, documents that could be detrimental to the
other party’s case.
 
Two Drawbacks of Interrogatories
1. Parties must seek permission by the court to ask more than 25 questions
2. And may be sent only to a party

DOCUMENTS—Rule 34 and Rule 35

o Only to parties
o Term “documents” is defined broadly
o Non-party may be compelled to produce documents as provided in Rule 45 (subpoena)—Rule 34(c)

Next step in discovery plan will be to ask to see documents, digital information etc.
 
Downside to document requests is that:
1. You then have to go through all of those documents (can become a needle in a haystack)
2. Can receive documents that are too narrow, per your request.
 i. Vice versa as well, too broad of a request can result in too broad of documents

Rule 34 (b)(2)(E)(i)—discusses who bears the cost of production of documents

EXAMINATIONS—Rule 35
o Mental or physical condition for which exam is sought must be “in controversy”
o Requires “good cause” – Rule 35(a)(2)(A)
o Only a party or a person within party’s custody or legal control
o Rule 35: Requires affirmative showing for each condition as to which exam is sought
o That condition is in controversy, and pleadings often put condition in
controversy

Rule 35(b)(4)—if P requests D’s examiner report than they waive any privilege to
examiner reports that the P has acquired

o That good cause exists--point to evidence in record

o Cannot force exam
o See Rule 37(b)(2)(A)(vii) & 37(b)(2)(B)
o Can impose sanctions in Rule 37(b)(2)(A)(i-vi)

ADMISSIONS—Rule 36
o Admit only if you do not intend to contest the assertion at trial
o Admissions binding only in this lawsuit
o Admitted if fail to object/answer

Requests for Admissions: 4 characteristics that are similar to interrogatories

1. Usable only against parties
2. In writing
3. Relatively cheap
4. Limited usefulness in most litigation

ORAL DEPOSITIONS—Rule 30
 “Present the opposite balance of usefulness in comparison to interrogatories, are expensive but
critical in developing the case.”
 Can depose parties and non-parties (would have to subpoena)
 Limited to 10 depositions of 7hrs each, without leave of court or stipulation
 Notice may include Rule 34 request
 Rule 30 (b)(6) depositions-
o Can serve a notice of deposition on a corporation and they can determine who the proper person
to speak to is (ex. Notice of deposition to: Director of Marketing etc.)--the person that is
knowledgeable in the information that you're seeking
o This is a tool that could be used, but has flaws. As the defense could determine a person to speak
that might not be as beneficial to your case as someone else would be.
 Could use interrogatories to determine who the best person to speak to is.
Objections during Oral Depositions—Rule 30(c) (2)

 Concise ,non-argumentative and non-suggestive manner

 
Can only instruct NOT to answer only when:
1) Necessary to preserve privilege
2) To enforce a limitation directed by court, or
3) To present motion under Rule 30 (d)(3)
 --in an attempt to terminate or limit the deposition on grounds that it embarrasses a party member
 Are essentially trying to stop deposition and move directly to trial

DISCOVERY OBJECTIONS:

 Privileged information

 Trial preparation material

 Irrelevant material

 Over broad

 Vague or ambiguous

 Unduly burdensome

 Cause undue expense

 Cause undue annoyance or embarrassment

d. Privilege & Work Product

 Rule 26(b)( 1) ---initial disclosure of only non-privileged material
 
 Privilege can be waived by person to whom privilege belongs (client, patient).
o Could waive if you told someone else what you said, or if a third party was present during. Also,
if you don't assert the privilege it can be viewed as waived.
 
 Privilege protects only that communication with that source; not necessarily any information that non-
privileged source might have.
 
 Must claim privilege expressly and describe nature of communication that you choose not to disclose.
Rule 26 (b)(5)(A)

Attorney-Client Privilege

1) Where legal advice of any kind is sought

2) From a professional legal advisor in capacity as such
3) The communication relates to that purpose
4) Made in confidence without the presence of strangers and kept in confidence (no 3rd party present)
 5) By a person who is or sought to become a client
6) Not for purpose of committing a crime or tort
7) Privilege has been claimed and not waived by client
 Bar to discovery no matter how compelling the need
 Information not privileged, only communication itself

 
Upjohn—Held that the privilege extended beyond “control group” [Top Management]—re-read--
 Courts test concerning employee-client privilege for corporations
 Attorney-client privilege extended further throughout the corporation

 Upjohn test
1) Information is needed to supply basis of legal advice
2) Communication concerns matters within the scope of the employee’s duties
3) Employees know they are being questioned so company can obtain legal advice
4) Employees understand the communications are confidential
 Federal privilege only

Work Product Doctrine- Rule 26(b) (3) (A)

 Meant to be used to protect the material that you prepare in anticipation of litigation.
o --Protection from having to reveal your strategy
o Other side, can however, show that they have a substantial need for the information and have no
other means to access information. (Ex. One side got to interview a witness but now the other party
can't interview witness because the witness is dead.)

 To protect Work Protect, would use Rule 26(b)(3)(A).

 To acquire. Would compel to discover under 37a for Rule 26 (b)(3)(A)(i-ii)

Hickman v Taylor—insert from longer handout—pg 9

 Why not decided under Rule 26 (b) (3)? A: Because that rule had not yet been enacted.
  Rule 26(b) (3) differs from Hickman in that:
 Rule 26(b)(3)(A): extends to representatives
 Rule 26(b)(3)(A): documents & tangible things
 Rule 26(b)(3) would not provide Fortenbaugh any basis for refusing to answer
questions while being deposed about what he recalled of his witness interviews, but
Hickman would.
 Rule 26(b)(3)(C): any party or other person may obtain their own previous statement

 Fortenbaugh (PROVIDE NOTES ON THIS CASE) has his own separate interrogatories with surviving
members of ship wreck.
 Because Fortenbaugh was held in contempt, this case moved to appeal. Because holding in contempt is
essentially a ruling.
 
How does this case differ from Rule 26 (b) (3)?
Rule 26 (b) (3) (A): extends to representatives
 More limited too: limited to documents and tangible things. Hickman is broader.
Rule 26 (b) (3) (c): any person or other party may obtain their own previous statement

e. Experts & Privacy

EXPERTS: AMENDED RULE 26(a) (2) –pg. shorter handout

 Under (A)
o You have to disclose your expert, report by expert and general information.
 Under (C)
o Might use experts that you haven't specially employed.
 Would have to disclose the subject matter of their testimony
 And a summary of the facts and opinions 
 
AMENDED RULE 26 (b) (4)
 
Under B--gives trial preparation protection for draft reports or disclosures
 
Under C--Protection of communication between a party's attorneys and expert witness
--Can still ask questions about compensation received by expert
Facts that expert received and party's attorney gave for expert to form opinion.
Thompson v The Haskell Co.
FACTS:
o D is seeking to prevent disclosure
o Contend that P had access to expert testimony
 
Chiquita
 Argument whether or not information is discoverable.
 
 
What did defendant argue in each response?
Arguing exceptional circumstances that prevent the party from receiving the information any other way.
 
In Thompson--argue that a psychological examination that was contingent on timing of the examination
cannot be duplicated. Immediately following the accident.
 
In Chiquita--there was ample time for an evaluation and inspection to be done by the defendants.
 
 
How do these cases differ?
o The negligence and the replicability of the information.

Protective Orders—Rule 26(c) (1) (a-h)

 
Stalnaker v Kmart

 Plaintiff is suing Kmart because she was sexually harassed by one of their employees
o Plaintiff wishes to depose 4 other female employees
o Kmart argues that this information/testimony is privileged and irrelevant--especially regarding voluntary
sexual activity 
 Protective Order is granted in certain respects that it is not directly related to consensual sexual activity of the
employees and of Graves
o WILL allow non-consensual activity by Graves

f. Electronic Discovery
Rule 26(b)(2)(B)
 Need not provide discovery of electronically stored information from sources identified as not
reasonably accessible because of undue burden or cost, but court may nonetheless order discovery if
good cause shown
Rule 26(f)(2)
 Planning conference – discuss preserving discoverable information
Rule 26(f)(3)(C)
 Discovery plan – “any issues about … discovery of electronically stored information, including the form
… in which it should be produced”
Rule 37(e)
 “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for
failing to provide electronically stored information lost as a result of the routine, good-faith operation of
an electronic information system.”
Rule 34(a) (1) (A)
  May request “electronically stored information”
Rule 34(b) (2) (D)
 May object to requested form for producing electronically stored information, but must state form intend
to use instead
Rule 34(b) (2) (E) – unless otherwise stipulated or ordered:
 “A party must produce documents as they are kept in the usual course of business or must organize … to
correspond to … request;
 If a request does not specify a form for producing electronically stored information, a party must
produce it in a form … in which it is ordinarily maintained or in a reasonably useable form …; and
 A party need not produce the same electronically stored information in more than one form.”

g. Regulating Discovery Abuses—pg. 462

ENSURING COMPLIANCE—Rule 26(g) and Rule 37 (Regulates discovery)

o Rule 26(g)---essentially the Rule 11 version for “discovery”
o Rule 37 (a) Motions to compel
o Meet and confer prerequisite
o May impose expenses/fees incurred in making motion
o Rule 37 (b)—failure to comply with order
o Rule 37 (c)–--failure to disclose; false or misleading disclosure; refusal to admit
o Rule 37 (d)—failure to attend deposition, serve interrogatory answers
o Rule 37 (e)—Fail to provide electronic info
 o Rule 37 (f)---Fail to join in Rule 26 (f)

Zubulake v UBS Warburg

 

o Zubulake is suing her previous employer for gender discrimination

o UBS ends up destroying some of the tapes that she believes are relevant towards her case
o UBS was negligent by not retaining all pertinent information that could be used in litigation
 The KEY emails were the emails that were missing.
 Essentially the 3 months in which the incidents were happening.
 
o When did the duty to preserve attach?
 Once the party could reasonably anticipate litigation.
 OR AT LEAST by the time she filed her complaint with the EEOC
 Why does UBS fare better than the plaintiff in Silvestri?
 Because there was no reason to believe that the emails that were destroyed contained any key
evidence.
 Had there been proof that the destruction was intention or willful or that the emails would have been of
substantial evidence--the court might have come to a different conclusion.

iv. Resolution without

Trial
 a. Default & Dismissal
Default Judgment: Rule 55--METHODS TO RESOLVE LITIGATION WITHOUT A TRIAL
 
 Default judgments are really disfavored by judges and the law.
o But we have to allow them in order to force defendants to participate in litigation.
 
 Will likely be "vacated" if the plaintiff is rushing to try and get a default judgment.
 
Ways to get judgment entered on default:

1. By clerk--if no appearance and sum certain

2. By court
i. If no appearance and not sum certain
1. What does appearance mean? What is a sum certain?
A sum certain is where the damages are easily calculable. The SUM of the amount
of damages is CERTAIN. Appearance is an “answer” or any Rule 12 Motion.
ii. If opponent has appeared, must notify opponent of request for default judgment
1. What can opponent do after receiving notice?
3. Setting aside a default or a default judgment
i. How can an entry of default be set aside?
 Rule 55 (c): Good cause
ii. How can an entry of default judgment be set aside?
  Rule 60(b)--asking the court to set aside for one of the 6 reasons listed (ex. No notice)

 
 
Involuntary Dismissal

Rule 41(b)
 Dismissal for plaintiff’s failure to prosecute or to comply with rules or a court order
 Dismissal is on the merits unless dismissal order states otherwise

o If the court is willing to dismiss the plaintiff's claim because of involuntary dismissal, then it will
typically be on "the merits" and would not be able to be re-tried.
o “Intended to keep P from going to sleep at the litigation switch.”
 

Voluntary Dismissal

Rule 41 (a) (1): Plaintiff can voluntarily dismiss w/o seeking court order:
 Before service of an answer
 By stipulation of all parties (very rare)
 Dismissal is without prejudice the first time
 If plaintiff chooses to voluntarily dismiss the claim it can be filed again.

Rule 41 (a) (2): Otherwise by court order

 Dismissal is w/o prejudice unless dismissal order states otherwise
Peralta v Hospital—re-read
 
 Defendant is a person who promises to pay employees
 Defendant gets served, and doesn't appear in court.
 Default judgment is given, and he appeals to have the default judgment set aside.
 
o Plaintiff argues that that is not enough, but would also have to have a "meritorious defense" in order
to set default judgment aside.
 
Supreme Court disagrees, saying "meritorious defense" is not required in order to have default
judgment set aside.
 
This was instead an argument of a violation of the 14th Amendment of the
Constitution---entitled to due notice.
 
 
"If he had proper notice, he could have: reached a settlement, paid the debt, sell the property himself
in order to pay the judgment."

b. Summary Judgment--- Amended Rule 56

Rule 60(b) to set aside SJ

 Standard-Amended Rule 56(a)—“no facts are disputed, and movant is entitled to JML”
1) Can also move for partial SJ
 Affidavits—Amended Rule 56(c) (4)—“used to support or oppose a motion. Affiant’s statement
must be based on personal knowledge to set out facts that would be admissible in
evidence”
 Timing—Rule 56 (b)—“unless stated otherwise by local rule or court order, a party can
motion for SJ at any time until 30 days after discovery.”
  Rule 56(d): “If a non-movant shows by affidavit … that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
1) defer considering the motion or deny it;
2) allow time to obtain affidavits … or to take discovery; or
3) Issue any other appropriate order.”

 Burdens-
1) When movant has burden of proof at trial (P moves for SJ on his claim)
SJ movant must support motion with credible evidence showing entitlement to
JML if not controverted at trial (i.e. must produce evidence to prove every
element of claim)
2) When movant DOES NOT have burden of proof at trial (D moves for SJ on P’s
claim)
 SJ movant may submit affirmative evidence negating an essential element of
nonmoving party’s (P’s) claim; OR
 SJ movant may show, by reviewing the record that the evidence is insufficient
to establish an essential element of the nonmoving party’s (P’s) claim.
Meaning: D has two options to have motion for SJ rendered.
i. Either submit evidence that negates the P’s claim. OR
ii. D can simply show that the P’s evidence is insufficient.
 Supporting Factual Positions
 Rule 56(c)(1): “A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
 citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations …, admissions, interrogatory answers, or other materials; or
 Showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.

Celotex Corp v Catrett—Is there enough of a “dispute of material fact” to refrain from awarding SJ?
 
 Woman sues because she believes her husband was exposed to a defective product manufactured by the
defendant company.
 Defendants deny that there is any defect or that there is any proof that their product caused the death.
o In the interrogatories of discovery, Woman failed to provide any material witnesses that testify
or show that her husband was exposed to any of the asbestos products.
 
 Plaintiff then provides 3 documents in response to defendant’s motion for summary judgment.
1. A transcript of the decedent's deposition,
2. the husband's former boss, and
3. a letter between the insurance company and the defendant's attorney.
  
Trial court ends up granting summary judgment, finding that the plaintiff provided no evidence that her
husband had been exposed to the asbestos.
 
Appeals court finds differently.
--Believing that the defendants need to provide evidence that negates the claim. Can't just simply
claim that there is no evidence that confirms the plaintiffs claim.
 
Supreme Court ends up reversing; by ruling that plaintiff is lacking an element to prove her claim.
 
“If this court was to move forward to trial, the burden to prove these things would be on the plaintiff.
In that scenario, she would lose in trial because she doesn't have the sufficient evidence.”
 
Thus, the same burden on the plaintiff should be true when assessing a granting of summary
judgment.
 
Trying to "match the burdens" during summary judgment as there is when at trial.
 
 
Court ends up remanding and finding for the plaintiff because Celotex failed to attack the admissibility of
the letter in trial.
 
Because of the lack of an attack by Celotex, the court finds that the plaintiff has provided sufficient
evidence. THIS IS ALL JUST TO GO TO TRIAL

Court: “One of the principle purposes of the SJ rule is to isolate and dispose of factually unsupported claims or
defenses, and we think it should be interpreted in a way that enables it to accomplish this purpose…”

Bias v Advantage International

 Death of Len Bias

o Parents sue agent for not taking out a Life Insurance Policy on his life for $1 million
o Agency has the testimony of two teammates that can testify that he had used cocaine on certain
occasions.
o P’s evidence to negate D’s defense:
 Parents and coaches provide affidavits that say that they didn't think he was a drug user.
 Drug tests that show that, at the time of the drug test, there were no drugs in his “system.”
o Court still grants summary judgment to the D
  Finding that the affidavits of the parents and coach do not challenge the testimony of
the teammates.
o From the teammates testimony and the way in which Bias died, the court makes the "leap" that
Bias was a habitual drug user.
 Because insurance companies would not insure a habitual drug user, this would make
Bias uninsurable.
 
Plaintiff's attorney made a number of different mistakes.
Ex.
1. Could have provided witnesses that would cast doubt on teammate testimony
2. Could depose the teammates to try and attack their credibility
3. Could have also provided a better explanation when offering up the drug tests--could explain
how drug tests are random, showing that Bias was not a habitual user.

c. Judicial Management
Pre-trial conference

 Rule 16(a): Pretrial conferences at judge’s discretion

 Rule 16(b): Scheduling order
 Rule 16(c)(2): Matters for consideration at pretrial conference
 Note the variety of matters that the court may consider
 Rule 16(d): Pretrial Orders
  Entered after any pretrial conference
 Controls course of action unless court modifies it
 Rule 16(e): Final Pretrial Conference
 Held close to trial to formulate a plan for trial
 Attorney who will conduct the trial for each party must attend
 This Pretrial Order modified “only to prevent manifest injustice”
 Rule 16(f)-Sanctions

2) Focus is on establishing what each side will be discussing/addressing during trial. 

3) In order to amend, in trial, what was already determined/agreed on during pretrial conference would
need to show "manifest injustice.” –Mainly because this has, more likely than not, already been agreed
on by both parties.
 
Sanders v Union Pacific Railroad
 
 What did Sanders' lawyer do wrong?
o Failed to meet any of the deadlines. Or at least ask for continuance so that deadlines could be
met.
 What effect did that have on the defendant?
o Defendant had already supplied all of their witnesses and evidence, prior to plaintiff submitting
anything. D had incurred costs to proceed with litigation; however, P had not.
 
 
McKey v Fairbairn
 
 At pretrial conference it is established that P will be relying solely on negligence claim. During trial,
P’s attorney comes across new information and seeks to amend the pretrial order to bring a strict liability
claim under D.C. Housing Regulations. Trial Court judge does not allow it. Appellate court affirms.
o “At the judge’s discretion”
o Dissenting opinion believes that purpose of regulating amendments from pretrial order is so D
can avoid “manifest injustice”; yet in this scenario it would appear that P is suffering injustice
solely because her council revealed new information after the pretrial conference.
 
Reid v San Pedro
--REREAD 
Plaintiff fails to show that it is more likely than not that the cow went through the broken fence, not the
gate.

v. Trial
 a.Determining Whether a Right to Jury Trial Exits
(EQUITABLE vs. LEGAL ISSUE)
 
7th Amendment: "right of trial by jury…"—only applies in FEDERAL COURT.
 
There are suits where there is and is not a right to a jury trial.
 
7th Amendment does not apply to State courts. Only applies to Federal courts.
 
But most states have some form of "jury trial right" that possesses concrete rules of the right.
 
When constituted in 1791, broke down the right to jury by two courts:
 
Courts of common law--right to jury trial---most money damages, ejectment, replevin,
mandamus/certiorari
Courts of equitable relief--no right to jury trial-Injunctions, specific performance, rescission, class
actions.
 
Now the courts have merged to civil court, but their principles remain the same.

Applying 7th Amendment to New Claims--Chauffeurs

 
Union members bring claim against their union for "poor representation"--originally also brought a claim
against the corporation. Which is eventually dropped, and the claim against the union is further pursued.
 
Collective bargaining did not exist in 1791, so there is not a part of the 7th Amendment that
addresses whether or not this should be a jury trial.
 
Additionally, there are no statutes that would help determine whether or not there is a right to a jury trial. But
fail to find one. No statute exists that can assist in their determination.
 
So what does court do?
Uses analogous cases and issues from the 7th Amendment (1791) that might help them make a
determination on the case at hand.
 
Three analogies to the case/claims at hand (3 older claims analogized to new claims to determine Jury or No
Jury: 
 
Union: Action to vacate arbitration award
=Equity, no jury (rejected by all opinions)
Union: Action by beneficiary against trustee for breach of fiduciary duty
=Equity, no jury (This one is accepted by majority and dissent)
Plaintiffs (Truck Drivers): Action for legal malpractice
=Similar to the common law: trustee analogy/relationship--jury
--"we hire our union to represent us, and they failed to do so"
--Justice Stevens agree

Court rules that there is equipoise; that there are legal and equitable issues.
 
Then the court evaluates the sought remedies
--And determines that the remedies are more of a monetary remedy than a restitutionary remedy, and
determine that the remedy is LEGAL, and thus allows the right to a jury.
 
Rule 38 & Rule 39

  If right to a jury trial is not demanded, the right is waived—Rule 38(d)
 Court still has discretion to permit jury under Rule 39(b)
 Party must demand in writing any time after start of action and not later than 10 days after service of
last pleading directed to such issue—Rule 38(b)
 When a court hears a case with both legal and equitable issues:
o Jury first issues a ruling on the legal issues
o Judge then rules on equitable issues, but is bound by the jury’s decisions on the factual claims in
making the decisions

 
 
Amoco v Torcomian –re-read
 
Torcomian is seeking a jury trial. Though Amoco is trying to avoid a jury trial.
 
Amoco drops its legal disputes that would allow a jury trial.
But there were still the claims by Torcomian that would lead to allowing a jury trial.
 
However, the court finds that there is not a right to a jury trial.
Why did the trial court say ejectment was equitable?
--Because in Pennsylvania state law, ejectment is considered equitable.
 
Why did 3rd Circuit say it was legal?
Because the claims were filed under Federal Court and law, and Federal law considers ejectment to
actually be legal, not equitable.
 
What were the common factual issues?
Whether or not there was an actual franchise agreement.
 
 
First, legal issues are tried to the jury
Judge decides common fact issues
Second, judge hears equitable claims
Judge bound by jury's findings on common fact issues

b. Choosing & Challenging Jurors

 6-12 people sit on federal juries – Rule 48(a)
 Unless parties stipulate otherwise, a unanimous jury verdict is required – Rule 48(b)
 Jury selection pools are to represent fair cross sections of the community – 28 U.S.C. §1861
  Specific protection for race, color, religion, sex, national origin, and economic status – 28
U.S.C. §1862
 For another group, is it a sufficiently distinct group to warrant proportional inclusion on
juries?
 To challenge jury pool, must do so before voir dire (or 7 days after could have discovered
the problem) – 28 U.S.C. §1867(c)

Voir dire: Attorney’s questioning of the jury

CHALLENGES

 During voir dire, the lawyers are specifically focused on eliminating jurors.
o Either because they're biased, or because they think that a specific juror will not be beneficial to
their case.
o Will ask the jurors if they know key people (the plaintiff, the defendant, the judge, key witnesses
etc.)
 If the juror does know anyone, then that will help eliminate
 
What is a challenge for cause?
 
 A lawyers attempt to show a reason to believe that the juror might be bias
o The number of challenges a lawyer can have is unlimited, because the goal is to remove any and all
biased jurors.
 
What is the standard for challenging a verdict based on inaccurate voir dire answers?
 
1. First must show that the juror failed to honestly answer the question. A.K.A.-that the juror
consciously lied.
i. Ex. "Do you know the defendant?" A: No
2. Then, must show that an accurate/correct response would have given you a basis for challenging for
cause
 
If you fail to remove a juror by way of challenging for cause can use peremptory challenge.
 
Why allow peremptory challenge?—each side gets 3 P.C’s
 
o We want people to feel as though they've had a "fair" jury selection.
 For lawyers, it's the way of eliminating people that they feel will view their client’s case in an
unfavorable manner.
 

 
 
Thompson v Altheimer & GrayThe potentially biased juror
 
 During questioning, a certain juror provided a number of "questionable" answers that on appeal the
plaintiff believes shows bias.
o Appeal is on whether or not this certain juror was showing bias by the answers that she provided.
 
  Why didn't the judge instantly dismiss juror when her experience made her sympathetic?
o Her answers were honest and genuine. Ex. “Could you possibly be sympathetic to an
employer?”A:”Yes”
 Judge failed to ask clearer more finite questions to determine whether or not there was in
fact an actual bias that would “cloud” her judgment.
 Judge never managed to show unequivocally that the juror would decide without
bias
 
 
 Seventh circuit finds “not the juror was DEFINITELY biased, by the judge failed to clarify and
investigate this further.” (not direct quote) 
 
Limits on Peremptory Challenge--Batson Procedure
 
 Can challenge someone's use of a peremptory challenge if you can make a prima facie case showing
pattern of peremptory challenge based on race/gender.
o Then the other side would have to show a way to justify an additional rationale for their
peremptory challenges. (Prove that their use of peremptory challenge to eliminate juror was based
on something other than race/gender)—
o Ex. “I didn’t eliminate the juror because he is Hispanic; I eliminated him because his brother
won a lot of money in a lawsuit once. Bias”

2. Directed Verdicts
Judgment as a Matter of Law—Rule 50(a) (1)
 Granted because “a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.”
 Applying that standard when D moves for JML after P’s case, the court must decide whether P
has met its burden of production—if not, JML may be granted.
 Applying that standard when D moves for JML at close of ALL evidence, the court must decide.
1. If there is substantial evidence of such quality and weight that a reasonable
jury might reach different conclusions, JML should be denied and the
case submitted to the jury.
2. If evidence so overwhelmingly favors D that reasonable jury could not
reach contrary verdict, JML may be granted.
 Court can also deny the directed verdict motion, let the jury make a decision, and then issue a
j.n.o.v. (judgment notwithstanding the verdict)
 Potential problems with directed verdicts
 Expense if the trial court is reversed (new trial)
 Let the jury finish what it started (more legitimacy to jury verdict)

Renewed Motion for JML

 Rule 50(b): “If the court does not grant a motion for judgment as a matter of law made under Rule
50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding
the legal questions raised by the motion. No later than 28 days after the entry of judgment . . . the
movant may file a renewed motion for judgment as a matter of law and may include an alternative or
joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

1) allow judgment on the verdict, if the jury returned a verdict;

2) order a new trial; or
3) Direct the entry of judgment as a matter of law.”

 One thing about a renewed JML, you must have initially motioned for a JML in order to motion for a
renewed. If you do not seek a JML before the jury makes their finding, then that right is waived. 
 Renewed JMLs are allowed so that only the jury's finding is evaluated by the appellate court, not the
entire trial.
 Not unconstitutional b/c it is in essence a delayed ruling by the court, not a judgment on the jury’s
verdict

Penn Railroad v Chamberlain

 
 Plaintiff is suing the railroad based on a claim that railroad employees behaved negligently.
 According to plaintiff, the train car that the decedent was in was bumped by another train car
because of the employee’s negligence.
 Defendant provides numerous testimonies that state that the cars never collided.
 Trial court grants directed verdict for defendant
 Appellate court reverses
 Which ultimately sends it up to the Supreme Court
 Reverses
 Which means we are ultimately back to directed verdict for defendant
  The credibility that of the employees was not addressed.
 The debate is whether or not they had any involvement in the decedent’s death, so they
have a vested interest in the outcome.

Scintilla test – if P has produced just a scintilla of evidence, P has met its burden of production
Substantial evidence test – a case should be submitted to jury if reasonable and fair-minded men, in exercise
of impartial judgment, might reach different conclusions given the evidence of both sides
Court used the substantial evidence test  the Supreme Court believed that D had more credible evidence
 it is not supposed to do this
When the facts are undisputed, a jury can still decide what those facts mean under the law. What is reasonable?
What is the legal standard?
GIST:
If there is substantial evidence that can go either way, case must go to a jury.
Substantial evidence is argued when the motion is made at the end of both parties cases
If the motion is made after the close of P’s case, then only P’s evidence needs to be assessed

3. Motion for New Trial—

NEED TO FOCUS ON REASONS FOR GRANTING THIS
 Rule 59
b. If moving for new trial, have 28 days after entered judgment to make motion
d. The court can also do this on their own initiative, if for some reason they determine that a mistake was
made.
 
Reasons for granting new trials (case law):
o Flawed procedure--jury tampering, wrongfully admitted evidence, erroneous instructions,
impermissible arguments, misbehaved jurors
o Flawed verdict--weight of evidence should lead one to find differently, etc.
o What is standard for deciding a new trial motion alleging flawed verdict:
o directed verdict?  high standard
o Miscarriage of justice?
o 13th juror?

 
 
Lind v Schenley Industries
 
 Man was a sales manager for a liquor store
o Man claims that an oral agreement occurred that promised him a raise and a share of commissions
 Lind and secretary both testify that this agreement occurred
o Members of Schenley testify that it didn’t occur
 
 After the verdict, Schenley motions for Renewed JML and Motion for New Trial
o On what grounds?
1. The verdict was contrary to the weight of the evidence
1. Contrary to law
1. Result of error in the admission of evidence
 
 Layman way to think about this. The judge has switched the verdict in favor of the defendant AND if on appeal
the appellate court reverses the decision, the new trial motion that was granted will lead to a new trial instead.
 
Appellate court wipes out elements 2 and 3, and only evaluates the #1--the verdict contrary to the evidence
 
Court finds that there was no "erroneous verdict". And that a reasonable jury could have found the way they did.
 
Why should new trials based on flawed verdicts be entitled to less deference then flawed procedures?
Because when it's a jury trial, the verdict was determined by the jury. Unlike with flawed procedures, the
results could be based on the fact of something that a member of the court did wrong.
 
Dissent believes that the initial verdict was in fact erroneous. The facts presented were erroneous.
Ex. The fact that Lind would have been paid more than everyone except the President of the company.
Also, Lind, went years without every mentioning this so called promise.

CONDITIONAL RULINGS ON NEW TRIAL MOTIONS:

  Rule 50(c)(1):
o If the court grants a renewed motion for JML, it must conditionally rule on any motion for a new
trial – in case the JML is later reversed.
 Rule 50(c)(2):
o If court conditionally grants a new trial, it does not affect the finality of the JML – if the JML is
reversed, the new trial occurs unless the appellate court orders otherwise.
o If court conditionally denies a new trial, the appellee (i.e., the party granted JML) may assert
error in that denial – if the JML is reversed, the case proceeds as the appellate court orders.

LATER NEW TRIAL MOTIONS:

 Rule 50(d):
o A party against whom JML is entered (i.e., the party who won the jury verdict and opposed
JML) can file a new trial motion within 28 days.
 Rule 50(e):
o If trial court denies JML, the prevailing party may, as appellee (i.e., the party who won the jury
verdict and opposed JML), assert grounds entitling it to a new trial should the appellate court
conclude that the trial court erred in denying the JML motion.
o If appellate court reverses the judgment, it may order new trial, direct trial court to determine if
new trial should be granted or direct entry of judgment.

Which of these are immediately appealable?

(a) Denial of JML & denial of new trial—yes, this is a final judgment, thus can be appealed.
(b) Denial of Renewed JML & grant of new trial—no, Denial of Renewed JML keeps the jury verdict,
but grant of new trial must take place before appeals.
(c) Grant of Renewed JML & conditional denial of new trial—yes, court has switched the verdict; the
conditional part does not affect the finality of the judgment.
(d) Grant of Renewed JML & conditional grant of new trial—yes, same reason as C
vi. Appeal
a. Who can appeal?
 Losing party

 Party receiving adverse judgment (i.e., judgment granting relief different from that requested).

Mootness Doctrine—review further

 Mootness Doctrine says cannot appeal from judgment when circumstances have changed such
that relief is no longer possible (e.g., settlement), unless exception applies.
 If you've settled your claim, you can't take an appeal, because you are no longer asking
the court to settle a dispute for you. The legal issue is moot.
 Exception to Mootness Doctrine: P’s claim has been satisfied despite adverse ruling below, but
question raised is likely to recur and application of Mootness Doctrine would effectively prevent
question from receiving appellate review (e.g., challenge to 1-year residency requirement)
  
Cross-appeals

If you've received an "adverse" judgment you can appeal, this can occur on either side. Both sides can
receive an "adverse" judgment.
 
Who raised the issue below?

Rule 46: Must state grounds for the objection. Have to present all claims in trial court, or else you
cannot raise them in appeal.
--Have to give the trial court the first opportunity to fix it. 

Exceptions:
o Affirm on any ground: Because appellate courts review judgments, not reasoning, we
allow the appellee to argue for affirmance of the judgment.--Possibly without having
raised an objection in trial court.
Allowed to defend a judgment on any ground that was found in the records.
--Basis for this would have to have been found in the record, wouldn't
necessarily have to have been argued below.
o Plain error review--explain
o Change in law during pendency of appeal--if there is some substantive change in the
law.
 b. Final Judgment Rule
 28 U.S.C. §1291: “The courts of appeals ... shall have jurisdiction of appeals from all final
decisions of the district courts of the United States ....”

 Generally can appeal only final judgments. A final judgment ends litigation on the merits and
leaves nothing for the trial court to do but execute the judgment.

Liberty Mutual Ins. Co. v Wetzel

o Plaintiff files discrimination suit under Title VII
o Plaintiff wins partial summary judgment
 Employer appeals
o Appellate court affirms
 Supreme Court reverses
o Believing that the partial summary judgment is not a final judgment
 The plaintiff was seeking damages and an injunction
 The trial court had not ruled or executed on the damages or the injunction
 Partial summary judgment had only been addressing liability
 Because the trial court had not executed damages or an injunction, there was still more
that the trial court needed to do, and thus, THERE WAS NO FINAL JUDGMENT. 
 Additionally, because there was no final judgment, jurisdictionally the appellate court should not have
heard the case. 
Why did the lower courts think this was a final order that they could hear?
Because they probably thought that they fit the exceptions to allow an appeal. 
 Supreme court references Rule 54(b) 
 There weren’t multiple claims and there weren’t multiple parties--so this does not fit the Rule 54(b)
exceptions. 
 What does the court ultimately conclude after the Supreme Court determines that this case wasn't
eligible for review due to a lack of "final judgment"?
o Case is remanded--trial court needs to decide on damages, which the judge needs to decide on. 
All of these efforts are a waste, because no appeals can be made until the judge awards damages.
 c. Exceptions to Final Judgment Rule
 Even though litigation has not ended on the merits, there are some exceptions that allow appeal prior
to the end of litigation.

1. Rule 54(b) -- When there are multiple parties or multiple claims, a court must also have entered at
least one judgment on one of the other parties and claims.
2. 28 U.S.C. § 1292(a) – Interlocutory appeals--Injunctions are immediately appealable
3. 28 U.S.C. § 1292(b):--
 Trial court must certify that:
1. Such order involves a controlling question of law
2. As to which there is substantial ground for difference of opinion and
3. an immediate appeal from the order may materially advance the ultimate
termination of the litigation
4. Collateral order doctrine (Cohen)

Cohen Doctrine: THREE FACTOR TEST

1. Conclusively determine disputed question
2. Separate from the merits
3. Effectively unreviewable on appeal from a final judgment (importance of right?)

Collateral Order Doctrine

If you are trying to apply this doctrine, you will be much more successful in this
application if you are able to find precedent where a similar order was granted.
Would a 1292b have worked under Lauro line?
Perform the test:
1. Did the order involve a controlling question of law? Yes 
What about in Liberty Mutual?
5. Writ of Mandamus:
 Separate action against the judge
 Have to allege that the judge abused his discretion or refused to do his duty- (ex. An
appellate court can compel a trial court to exercise his duty)
 Must be an extraordinary error
 Factors to consider:
 Party has no other adequate means to retain relief
 Harmed in a way not correctable on appeal
 Clearly erroneous as a matter of law
 Raises new and important issues
 District court’s order is often repeated error

Which orders are appealable? (Are they a final judgment?)

 Rule 12(b)(6) motion is granted--yes you can appeal, cause that would have been the end of the case
 Rule 12(b) (6) motion is denied--no there is tons more that needs to be done before judgment is final
 Order to compel discovery--no, not a final judgment, just part of the process and there is plenty left to
be done.
  However, there are exceptions. For example, if you failed to disclose information after being
compelled to do so, you might receive sanctions in the form of a case dismissal.
 Summary judgment (complete) granted--yes, because the litigation is over. This is a final judgment
 Summary Judgment denied--no, because the case is still proceeding.
 Grant motion for a new trial--no, because now we need to have a new trial
 Denial for motion for a new trial--yes, because this would mean that litigation was at an end. We're
done, there's nothing more to do, and thus can be appealed.

 
Lauro Lines v Chasser
 
 D's file a motion to dismiss on the grounds that the P's ticket from the boat states where lawsuits should
be filed if they occur. “Forum Selection Clause”- (Naples, Italy)
 Trial court denies the motion, so the case will continue
 D's make an appeal on the ground that the "forum selection clause" would be rendered obsolete if they're
forced to go through litigation, just to prove that the trial is being reviewed in the wrong jurisdiction.
o Court does not find this persuasive. Believing that the D's motion does not fit the Cohen
Doctrine. The 3rd factor is not met; this isn't a case of "right not to stand trial". The D's aren't
saying that "we have a right not to stand trial" they're just saying "we have a right not to stand trial
anywhere but Naples, Italy." The court draws this distinction, finding that this is too broad.
 

 
Anderson v Bessemer City
 
What does Rule 52 (a) say about how to review a finding of fact?
--The finding must be clearly erroneous.
 Legal type issues are reviewed "de novo"; findings of fact however can only be reviewed if clearly
erroneous.
 
 
Harden v Jayco
 
RULE: There has to be an error that would IMPACT the ruling. While it is true that the district made an error,
this error was harmless and would not have impacted the outcome had the error not occurred.
d. How to decide an appeal? --Scope of Review
 Factual findings
 Reviewed under clearly erroneous standard
 Rule 52 (a) (6)
 Legal issues/conclusions of law
 Reviewed under de novo standard
 Harmless error
 28 U.S.C. §2111: courts cannot reverse for “errors or defects that do not affect the
substantial rights of the parties”
 Rule 61: “At every stage of the proceeding, the court must disregard all errors and
defects that do not affect any party’s substantial rights.”