CIVIL PROCEDURE FALL 07 PROF. DIFONZO I.

OVERVIEW OF PROCEDURE
a. b. c. d. e. f. g. h. i. j. k. l. m. SUBJECT MATTER JURISDICTION PERSONAL JURISDICTION VENUE SERVICE OF PROCESS COMPLAINT RESPONSE JOINDER DISCOVERY SUMMARY JUDGMENT TRIAL JUDGMENT AS A MATTER OF LAW FORMER ADJUDICATION APPEALS

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INCENTIVES TO LITIGATE
a. LITIGATION IN THE US i. Current state of litigation (pgs 259-264) b. SUBSTITUTIONARY REMEDIES i. Compensatory Damages 1. Cash amounts intended to make the injured party whole 2. Economic damages = lost wages, medical bills, etc. 3. Other damages = pain & suffering, emotional distress, harm to reputation 4. Compensatory Damages often fall short of full compensation since, in most cases, litigant will have to pay lawyers fees ii. Liquidated Damages fixed amount, contractually agreed upon as a substitute for calculating damages; if too high, will be unenforceable as a penalty; parties may not agree to liquidated damages unless actual damages would be too difficult to calculate iii. Statutory Damages Sometimes statutes set minimum damages to be awarded, not specifically tied to the amount of loss suffered (ex. Copyright Act) iv. Punitive Damages exception to the general rule that damages serve only to compensate plaintiff; in some jurisdictions plaintiffs seeking punitive damages may introduce testimony as to the defendant s net worth c. SPECIFIC REMEDIES i. Courts may order parties to do things or to refrain from doing them ii. Injunctions / specific performance some common law, some equitable; in order to obtain equitable remedy, plaintiff must show that legal remedy is inadequate d. DECLARATORY RELIEF Rule 57 i. Under Declaratory Judgment Act, parties may seek declaration of their rights without any coercive relief such as damages or an injunction ii. Article III of Constitution limits the availability of declaratory judgments to actual cases or controversies no declaratory judgment on hypotheticals iii. Declaratory relief may be chosen by a party even though other avenues are open e. FINANCING LITIGATION i. American Rule parties pay their own attorneys fees (Rule 54) ii. Insurance & Contingent Fees 1. If defendant has liability insurance, the insurance company will provide the defense as part of the policy benefits 2. In contingency fee system, the lawyer typically agrees to provide legal representation, with the fee to be paid from the proceeds of any settlement or recovery 1

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Public Subsidies & Professional Charity Fee Spreading to Fee Shifting (exceptions to American Rule) 1. Common Fund theory shares fees among similarly situated persons rather than shifting them to the opposing party in the lawsuit 2. Contract parties may contract ahead of time for fee shifting a. Asymmetrical (ex. tenant pays landlord s lawyer if evicted, but landlord doesn t have to pay tenant s lawyer if eviction effort fails) b. Symmetrical loser pays winner s lawyer 3. Common Law plaintiff may have to pay defendant s lawyers fees if brought suit that was groundless 4. Statute many federal and state statutes authorize fee shifting (ex. civil rights cases); court in its discretion may allow the prevailing party a reasonable attorney s fee as part of the costs a. Some courts have interpreted prevailing party as symmetrical fee shifting; others have interpreted it as prevailing plaintiffs (interpreting legislative intent as trying to make enforcement of civil rights easier, not harder) PROVISIONAL REMEDIES i. Preliminary Injunctions & Temporary Restraining Orders Rule 65 1. Preserves the status quo so that any final relief granted by the court can be effective 2. Dilemma in granting provisional remedies if court does not grant prompt relief, the plaintiff may suffer a loss of his lawful rights that no later remedy can restore, but if the court does grant, then the defendant may sustain precisely the same loss of his rights 3. To obtain preliminary injunction, party must prove: a. High risk of suffering irreparable harm b. They are likely to succeed later on in trial c. They would be harmed more by denial of the motion than granting it would harm the other party d. Granting the motion serves the public interest 4. Preliminary injunctions are appealable 28 USC 1292(a)(1) allows interlocutory appeals ii. Provisional Remedies & Due Process 14th Amendment

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III.

PLEADING
a. Two central functions of pleading: i. Enable the parties to reach converging estimates of a case s values (eliminates some legal theories, sharpens the basis for the dispute) ii. Define the ground to be covered in discovery b. COMPLAINT i. RULE 8(a) short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief the pleader seeks ii. Complaint must do two things: 1. Invoke, at least by reference, a body of substantive law 2. Sketch a factual scenario that, if shown to be true, falls within that body of law iii. A court will almost never dismiss a complaint without granting the plaintiff leave to amend c. RESPONDING TO COMPLAINT defendant does not appear in the suit until he files some paper or motion that evinces participation in the lawsuit i. RULE 12(a)(1)(A) & (B) while plaintiff s lawyer has a fair amount of time to investigate the facts and law surrounding the claim (unless statute of limitations is about to run), defendant s lawyer has 20 days to serve an answer (or 60 days if defendant waives service of process under RULE 4(d)) 1. OR, plaintiff could stipulate an extension, or court could order extension 2

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RULE 12(a)(4) alters time period for responsive pleading if defendant makes a pre-answer motion (ex. if court denies motion or postpones judgment on motion, defendant has 10 days after notice of court s action to file pleading) RULE 7 (a) states the types of pleadings permitted; (b) states that a motion is a request to the court for a court order (must be in writing, unless during trial, and signed as per Rule 11) Pre-Answer Motion permits defendant to raise certain types of objections to the action at a very early stage of litigation RULE 12(b) 1. Such motions are attractive to defendants because can result in quick and inexpensive dismissal of a case 2. A motion can be one document or contain several documents: a. Motion itself a request for specific relief sought b. Notice of the motion tells opposing party when the motion will be heard c. Any required or permitted affidavits (sworn statements) d. Memorandum explaining the basis for the motion 3. If materials are attached to a 12(b)(6) motion ( matters outside the pleading ), then the motion is treated as one for summary judgment 4. Rule 12(e) motion for more definite statement motion must be made before responsive pleading (makes sense; how can you respond to a complaint and then motion that it s too vague) 5. Rule 12(f) motion to strike defendant may move to strike part of claim that is not recoverable by law (ex. punitive damages in a tort claim); this acts as a kind of 12(b)(6) motion directed to a single allegation; court will also grant the motion if the allegations in complaint are unnecessarily derogatory 6. Rule 12(d) any party can make 12(b) motion before trial, but court may defer the determination for trial 7. RULE 12(g) & (h) rule 12(b)(2)-(5) defenses are waived if not motioned or pleaded in a response; a 12(b)(6) motion may be asserted at any time including trial; all other motions must be asserted at the time of the first motion (or if there is no motion made, then in the answer) a. Lack of subject matter jurisdiction can be brought up at any time and the court shall dismiss the action 12(h)(3) Answer responds to the allegations of the complaint and asserts any additional information or affirmative claims that defendant may have against plaintiff 1. Denials (traverse) RULE 8(b) requires defendant to deny only those allegations that he actually disputes; if party lacks knowledge to form a belief on the truth of an allegation, the party can say so and this has the effect of a denial a. RULE 8(d) if defendant fails to respond to an allegation in a complaint (other than amount of damages), it is considered an admission b. General Denial denies each and every allegation of the complaint (in very few cases can defendant deny every allegation and not risk Rule 11 sanctions) c. ielinski v. Philadelphia Piers plaintiff filed suit against PPI thinking they owned and operated the forklift that caused injury; defendant denied the allegation because they had sold operation of the business to CCI (but still maintained ownership of forklift); court held that defendant should ve given a more specific response and this would ve alerted plaintiff that they were suing the wrong party; court ordered PPI to tell jury that they were the operators of the forklift (even though not true the alternative is that the plaintiff loses his cause of action b/c statute of limitations had already run for bringing suit against CCI) 2. Affirmative Defenses (confession & avoidance)

a. RULE 8(c) affirmative defenses cannot be brought up at trial if omitted in the pleading; this is to prevent unfair surprise because affirmative defenses introduce new facts i. A motion to amend can be made after discovery if an affirmative defense came out of discovery (depends if done in good faith) b. Layman v. Southwestern Bell court held that easement agreement was an affirmative defense and should ve been raised in pleading; Court says that a defense is an affirmative defense if it rests upon a fact not included in the allegations made by plaintiff; in this case, defendant was not denying that they entered the land, but that they had a valid reason for doing so 3. Rule 12(c) after pleadings are done, any party can motion for judgment on the pleadings (if any materials outside the pleadings are attached and not excluded by the court, then it s treated as a motion for summary judgment) d. REPLY a reply is required only if the answer contains a counterclaim that is labeled as a counterclaim (Rule 7a), but party may reply to all new matters in an answer to avoid a possible inadvertent admission; in addition, court may order a reply on its own motion or on the motion of a party e. AMENDMENTS RULE 15 i. Tension between: 1. Easy amendment allows the pleadings to reflect the parties changed view of the case as it develops 2. Prejudice at some point the other side has to make decisions about how to present its case, decisions that become difficult if the story it has to meet continually shifts ii. Rule 15(a) party may amend pleading once at any time before the other party responds, or if no response is required or permitted then within 20 days after pleading was served; otherwise, party may amend only by permission of the court or written consent of the other party; leave shall be freely given when justice so requires 1. A party shall respond to the amended pleading within the time remaining on the original pleading or within 10 days after service of the amended pleading, whichever period is longer iii. Beeck v. Aquaslide defendant originally admitted to being the manufacturer of the slide, but then discovered it wasn t their slide and motioned to amend pleading; court held that amendment was appropriate because it would be prejudicial to the defendant to deny the amendment; defendant had relied on the investigations of 3 insurance companies in making its first pleading, so there was no evidence of bad faith; leave to amend should be granted unless the moving party acted in bad faith or sought to unnecessarily delay the case; in opposing the amendment, plaintiff would have to prove that it would be prejudicial Moore v. Baker plaintiff was not granted leave to amend her complaint to add a claim of iv. negligence because it did not relate back to her original claim of violation of the informed consent law 1. the original complaint had to do with defendant s failure to inform prior to the surgery, but proposed amended complaint refers to defendant s actions during and after the surgery; there was nothing in the original complaint that made reference to negligence, so there s no way the defendant had adequate notice of the allegations (and so the plaintiff is trying to bring up totally new claims after the statute of limitations has run out) v. Bonerb v. Richard J. Caron Foundation plaintiff was granted leave to amend; the original complaint advised defendant of the same transaction or occurrence giving rise to the different theories of negligence; an amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to the defendant s attention by the original pleading; the court reasoned that 4

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both complaints stemmed from the same facts (negligent maintenance of the basketball court / negligent rehabilitation care) RULE 15(c) defines the line between permitted and unpermitted amendments in terms of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading 1. Rejects the idea that amendments should turn on legal theories 2. Rule 15(c)(3) a new party can be named in an amended complaint if: a. the claim against them arose out of the same conduct/transaction/occurrence set forth in original complaint b. they are served in compliance with Rule 4(m) c. they have received notice and will not be prejudiced in maintaining a defense on the merits (knew enough about the suit that they wouldn t be at a terrible disadvantage) d. they knew or should have known that but-for a mistake in originally identifying the party the action would ve been brought against them

IV.

DISCOVERY
a. FEDERAL RULES 26-37 i. Rule 26(a)(1) Initial Disclosures without being asked, parties must provide (within 14 days after Rule 26(f) conference): 1. Name, address, telephone # of each person likely to have discoverable information that disclosing party may use to support its case, unless solely for impeachment (showing that the witness is a liar) 2. Copy of or description of all documents that disclosing party may use 3. Computation of any damages claimed by disclosing party, and party must make available for inspection any supporting material not privileged or protected 4. Make available for inspection any insurance policies 5. (E) states categories of suits that are exempt from initial disclosure ii. Rule 26(a)(2) Disclosure of Expert Testimony 1. Parties must disclose identity of any person who may be used at trial to present expert testimony 2. Written report prepared and signed by the expert witness (rule states what the report must include) 3. Disclosure must be made at least 90 days before trial, or if the testimony is to be used to rebut evidence by opposing side s expert, then within 30 days after disclosure of that expert by the opposing party iii. Rule 26(a)(3) Pretrial Disclosures parties must disclose within 30 days of trial: 1. Name of each witness they expect to present at trial and those they may call if the need arises 2. Designation of witnesses whose testimony will be presented by a deposition and a transcript of the pertinent parts of the depo 3. Identification of each document or exhibit party expects to offer and those which the party may offer if necessary 4. Opposing party has 14 days after such disclosure to file objections; objections not filed are waived (unless excused by court for good cause) iv. Rule 26(a)(4) - all required disclosures (above) must be in writing, signed and served v. Rule 26(b)(1) General Scope of Discovery broad scope 1. Parties may obtain discovery regarding any matter that is not privileged that is relevant to the claim or defense of any party 2. For good cause, court may order discovery of any relevant matter 3. Relevant information need not be admissible at trial if the it is reasonably calculated to lead to discovery of admissible evidence 5

Rule 26(b)(2) Limitations 1. Court can alter # of depositions or interrogatories, and requests for admissions 2. Party doesn t have to provide electronically stored info if it can prove that it s not reasonably accessible without undue burden or cost 3. Discovery methods may be limited if: a. Unreasonably cumulative, or can be obtained more easily from another source b. Party seeking discovery has already had opportunity to obtain the info c. The burden of proposed discovery outweighs its likely benefit vii. Rule 26(b)(3) Trial preparation materials party may obtain documents prepared in anticipation of litigation (excluding work-product) only upon showing: 1. Substantial need of the materials 2. Unable to obtain the substantial equivalent of the materials by other means without undue hardship viii. Rule 26(b)(4) Trial preparation experts 1. Any person identified as expert witness who may be called upon at trial may be deposed 2. An expert who will not be called to testify at trial may be deposed only as provided in Rule 35(b) or upon showing of exceptional circumstances 3. Party seeking discovery must pay the expert a reasonable fee ix. Rule 26(c) Protective Orders 1. Party may motion for protective order; motion must include certification that party tried to work it out with the other party before seeking court action; court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense 2. Rules sets out the types of order court may grant x. Rule 26(d) Timing and Sequence of Discovery 1. Parties may not seek any discovery before the Rule 26(f) conference 2. Methods of discovery may be used in any sequence xi. Rule 26(e) Supplementation of Disclosures and Responses 1. Parties are under a duty to supplement the required disclosures, responses to interrogatories, request for production, and request for admission if they learn that the info is incorrect or incomplete in a material respect and if the additional info has not already been made known to the other party during the discovery process 2. Expert testimony both the written report and any info given in depositions must be supplemented xii. Rule 26(f) Conference requires parties to confer about the case and come up with a plan for discovery; rule outlines the topics to be covered in this initial conference (does not necessarily have to happen in person) xiii. Rule 26(g) Rule 11 equivalent for discovery xiv. RULE 29 allows parties to write their own discovery rules b. MODERN DISCOVERY i. Discovery ends lawsuits for 2 reasons: 1. Discovery produces information about the merits of the lawsuit and permits parties to make informed judgments about the strength of each position 2. Discovery costs time and money, so it enables parties to wear each other down without regard to the merits of the case ii. Broad discovery rules permits lawyers to uncover enormous amounts of information iii. Most judgments on discovery motions are interlocutory (do not end the case) and are therefore not appealable until after the case is final c. RELEVANCE & PRIVILEGE 6

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Relevance to be discoverable, information must be relevant either to a claim or defense of the parties; relevance links discovery to pleadings 1. Davis v. Precoat Metals plaintiffs filed discrimination suit against employer, claiming hostile work environment; they filed motion to compel discovery to obtain complaints filed by other employees against defendant; court granted the motion because the request did not step beyond the scope of their allegations a. Before motion to compel discovery was filed, plaintiff must have made a discovery request of the other side and defendant refused; you must serve opposing counsel with discovery demand first; opposing counsel must then serve you with an answer either providing the info you want, or an explanation of why not 2. Relevant does not necessarily mean admissible at trial; relevance is a legal standard, not a trial standard 3. Steffan v. Cheney court held that plaintiff was not required to answer deposition question about whether he had engaged in homosexual acts because it was irrelevant to the defendant s stated reason for discharging him (that he stated he was a homosexual) ii. Privilege Rule 26(b)(5) - has nothing to do with relevance of the information; privileges typically block information from a particular source (they re not meant to block the underlying facts) 1. Privilege, unlike trial preparation protection, cannot be pierced by a showing of need; privilege, unless waived, is absolute 2. Common privileges self-incrimination, doctor-patient, attorney-client, psychotherapist-patient 3. All privileges can be waived, either explicitly by the party entitled to use it or implicitly by an action inconsistent with the privilege a. If party puts something at issue (ex. mental condition), the party cannot then block discovery by claiming privilege d. PROCEDURES & METHODS i. Required Disclosures Rule 26(a)(1) within 14 days of initial conference, each party must offer the other side the names of witnesses and descriptions of documents that the disclosing party may use to support its claims or defenses, as well as calculations of damages and copies of insurance agreements; parties must exchange this info without its having been requested 1. Getting from Service to Disclosure a. Defendant is served or waives service according to Rule 4 b. Defendant appears in the suit by filing pre-answer motion or answer Rule 12 c. Parties must meet as soon as possible or at least 21 days before scheduling conference Rule 26(f) d. Within 90 days after defendant s appearance or 120 days after service, judge holds scheduling conference Rule 16(b) e. Parties must exchange required disclosure lists either at the Rule 26(f) meeting or within 14 days after it (purpose is to require parties to exchange disclosures at least 7 days before scheduling conference) ii. Interrogatories & Depositions 1. Interrogatories Rule 33 - typically cheaper for the party seeking discovery, but does not offer party the chance to follow up evasive answers to questions (may yield little valuable information) a. Can be served on any party (non-party witness is not required to respond to interrogatory) b. Should not exceed 25 questions (must request leave of court to ask more) i. 7

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c. Business may offer party opportunity to examine business records to derive answers to interrogatory 2. Depositions like questioning a witness at trial without the judge; there are expenses to all concerned a. Lawyer asks questions and witness must answer under oath b. Deposing party must arrange for some form of recording or transcription c. Limits i. The total # of depositions taken by one side may not exceed 10 ii. No deposition may exceed a day of 7 hours iii. No person can be deposed a second time without permission of court or the other side d. Rule 28 defines officer whom depositions must be taken in front of e. Rule 30 rules for depositions taken upon oral examination i. Lawyer can object, but then witness continues answering the question ii. Deposition can only be stopped if opposing counsel is asking questions to harass, embarrass, etc. or if the information being asked is privileged f. Rule 31 rules for depositions taken upon written questions (rarely used procedure) g. Rule 32 use of depositions in court proceedings Production & Inspection of Documents/Things Physical & Mental Exams 1. Rule 34 permits inspection of land, objects and documents (documents includes any medium for recording information) a. The request for inspection differs between parties and non-parties (requires subpoena for non-parties Rule 45) b. Requests for documents cannot be made before disclosures in Rule 26(a) c. Number of document requests is not limited by the rules 2. Rule 35 - requires special application to the court when you want the other side physically or mentally examined; requires showing of good cause and that the condition be in controversy Requests for Admission 1. Rule 36 more like a pleading device than one for discovery; because of system of notice pleading a lot information doesn t appear in the pleadings, so Rule 36 provides a device for you to request to admit what s not an issue; rule is designed to limit the number of issues that are contested a. A matter is admitted unless answered or objected to (an answer can be a denial or a detailed reason why the party cannot truthfully admit or deny the matter) i. Party can t claim lack of knowledge unless they ve made a reasonable inquiry Ensuring Compliance 1. Rule 26(g) punishes the parties for unjustified requests and refusals even when the parties behavior does not violate a court order (Rule 37 sanctions are for violation of court orders) like Rule 11 all disclosures, discovery requests, responses, and objections must be signed by attorney (or unrepresented party) a. For disclosures, signature certifies that to the best of signer s knowledge, formed after reasonable inquiry, the information is complete and accurate as of the time it s disclosed b. For requests, responses and objected, signature certified that in the knowledge of signer, formed after reasonable inquiry, the request is: 8

i. Consistent with rules or poses good faith argument for modification of existing law ii. Not being presented for improper purpose iii. Not unreasonable or unduly burdensome considering the specific nature of the case 2. Rule 37 Failure to Make Disclosures or Cooperate in Discovery a. If a party fails to make required disclosure, other party may motion to compel disclosure and appropriate sanctions (party must have tried to work it out with other party first before seeking court order) b. Same as above for depositions, designations by corporations, interrogatories, and Rule 34 requests c. Evasive or incomplete disclosure is treated as a failure to disclose d. If motion is granted or opposing party disclosed requested information after motion was filed, court will require opposing party to pay moving party s reasonable expenses incurred (court must give party chance to be heard) unless the motion was made without first making good faith effort w/out court action or the party s nondisclosure was substantially justified e. If motion is denied, court may enter protective order and will require moving party to pay opposing party s incurred expenses (unless ) f. If motion is partially granted/denied, court may apportion the reasonable expenses g. Rule 37(b) sets forth possible sanctions for failing to comply with court order (issue may be established in favor of party obtaining the order, disobedient party may lose claim or defense, default judgment, contempt of court) h. Rule 37(d) sets forth sanctions for failure to appear for deposition, respond to interrogatories, or respond to request for inspection such failures may not be excused on claim that discover is objectionable unless the party had a pending motion for protective order (Rule 26(c)) i. Good faith loss of electronically stored info is not sanctionable j. Failure to participate in development and submission of proposed discovery plan (in Rule 26(f) conference) may be sanctioned e. DISCOVERY & PRIVACY i. Rule 26(c) permits a party to seek a protective order and gives the judge broad power to prevent abusive discovery 1. Stalnaker v. Kmart Corp. plaintiff filed sexual harassment claim against defendant and gave notice to depose 4 non-party witnesses; defendant motioned for protective order to protect non-parties from discovery regarding voluntary romantic or sexual conduct; defendant argued that witnesses depositions are irrelevant, but by claiming hostile work environment, plaintiff brought such information within the scope of the case; court held that witnesses could be deposed but questions may be asked to the extent that they showed conduct relevant to a hostile work environment; court is attempting to balance privacy and discovery a. A party is entitled to seek a protective order to preclude any inquiry into areas that are clearly outside the scope of appropriate discovery b. The party seeking order has burden to show good cause 2. Confidential information is not necessarily privileged (ex. names of patients who had undergone abortions who later filed claims for emotional distress) 3. Rule 5(d) forbids filling discovery materials with the court unless used in a motion or at trial

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Rule 35 places special limits on the use of discovery to compel physical or mental examinations; two requirements: (1) the mental or physical condition be in controversy and (2) the party seeking such discovery show good cause 1. Schlagenhauf v. Holder defendant (bus driver) crashed bus into back of tractor trailer; admitted seeing red lights for 10-15 seconds before the accident; other defendants filed for writ of mandamus to have bus drive submit to mental and physical examinations; bus driver argued that Rule 35 can t be applied to defendants a. Court held that the rule 35 applies to all parties, but bus driver did not have to submit to the examinations because moving parties had failed to make affirmative showing that defendant s mental or physical condition was in controversy; In controversy and good cause must be shown by movant that each condition individually is really in controversy and that good cause exists for each particular order b. Writ of Mandamus - allows a party to jump the tracks of the procedural system. This is very rare, and it was used here to order someone to do something. Writ of Prohibition is the flipside, ordering someone not to do something, but they re both writs of mandamus. Wants court to redirect order of judge. Writ can t be used as a substitute for appeal; instead it s an original action in the appellate court. So, if judge does something outrageously, disgustingly bad you go to appellate court with writ of mandamus requesting appellate court direct the trial court to stop doing whatever. The appeals court in this case becomes an original court; they re not reversing anything they have to order an original judgment DISCOVERY IN AN ADVERSARY SYSTEM i. Hickman v. Taylor tugboat sank and 5 of 9 crewmembers drowned; tugboat owner retained attorney in anticipation of lawsuits; attorney privately interviewed the surviving crew members and other persons he thought would have relevant information; plaintiff s attorney requested all materials but defendant s attorney refused, claiming attorney-client privilege 1. Court held that materials were not privileged, but attorney did not have to hand over the documents because plaintiff had not proven necessity or undue hardship 2. Work Product Doctrine what lawyer thinks, who she interviews, what they said, is discoverable sometimes, but only when other side shows substantial need and undue burden Rule 26(b)(3) 3. Party seeking the info has the burden of showing the court that production of relevant/non-privileged info is essential to his/her case and that in the balance of equities it would be unfair to not grant discovery ii. Questions to ask during discovery: 1. Does it qualify for discovery? a. Is it relevant? b. Is it privileged? 2. Is it lawyering? (is it something a lawyer should do?) iii. Expert Information 1. Rule 26(b)(4) - differentiates between expert who may testify at trial and expert who is merely consulted 2. Discovery rules focus on experts who have prepared their information in preparation for litigation (difference between your usual treating physician vs. expert physician); one is fact witness and the other expert witness; what matters is how you re using the witness; just because someone has a medical degree does not automatically make them an expert witness

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3. Before a court will let an expert testify, the party presenting such testimony must establish that he or she is an expert and that the expertise is relevant to the contested issues Rule 26(a)(2) 4. Thompson v. The Haskell Co. plaintiff filed motion for protective order to shield psychological records; court held that records were discoverable; a psychological examination 10 days after plaintiff s termination would hold a lot of evidence relevant to the case, and since there were no other like examinations in the same relevant time period, the reports are the only way for defendant to obtain the information a. defendant could not have hired their own expert to examine the plaintiff b/c results 10 days after her termination would ve been potentially different than results a year later b. plaintiff can t argue that defendant waited too long b/c plaintiff had to first file w/EEOC; administrative filing does not trigger anything with the defendant (the only time defendant has an opportunity for discovery is once the lawsuit is filed) 5. Chiquita v. M/V Bolero defendant was supposed to transport certain amount of bananas for plaintiff; plaintiff had someone survey the ship once it arrived; defendant applied to compel discovery of plaintiff s witness (sought deposition and production of his file on his inspection of the ship and gear) a. Court held that witness could not be deposed because he was an expert witness under 26(b)(4)(B) and because defendant had not proven exceptional circumstances (defendant didn t conduct discovery when they could have) b. Rule 26(b)(4)(B) limits discovery of experts that are used in a consultative manner (there is an important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients positions without fear that every consultation with an expert may yield grist for the adversary s mill) g. ENSURING COMPLIANCE AND CONTROLLING ABUSE i. Discovery is a process intended to be largely run by the lawyers/parties; judges become involved only when the system breaks down (ex. in the event of motion for protective order, motion to compel discovery, or motion for sanctions) ii. Rule 26 assumes lawyers can handle it on their own; but there s obviously a tension between lawyers role to advocate for their clients, and the requirement of discovery rules for the parties to cooperate with adversaries iii. Three basic patterns of discovery abuses: 1. Too much discovery when one party seeks more discovery than the case justifies so as to discourage or hamper the opponent 2. Too little discovery stonewalling 3. Mismatched discovery when two parties have significantly unequal wealth (Rule 26(b)(2)(C)(iii) - allows lawyer to appeal to court to come up with a manageable discovery scheme says that parties could fairly carry out the case with less discovery and that additional discovery would just be unnecessarily added on by party with greater means could be very relevant in cases involving parties of unequal means) iv. Rule 26(c) permits any party to seek a protective order v. Rule 16 discovery conference vi. Thompson v. Dept of HUD - Class action suit alleging the establishment and perpetuation of racial segregation in Baltimore s public housing; plaintiffs sought to discover information stretching back to 1933; trial judge orders parties to go back and try to sort out a compromise 1. underlying message of the court: this is an important case and so sorting through discovery is worth it; this court deliberately chose not to provide a quick answer, but 11

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court says this is too important for the court to take a stab in the dark and make a decision; judge is not in possession of the facts to make a fair decision vii. Poole v. Textron, Inc. case of plaintiff injured by defendant s golf cart; court granted plaintiff s motion for sanctions since the information plaintiff was seeking was easily determinable by defendant and instead defendant chose not to cooperate (stonewalling); different result than in Thompson because here there is nothing for parties to negotiate one party is complying with discovery rules and the other isn t RESOLUTION WITHOUT TRIAL technically, point of pleading and discovery is to get to trial but they also get you to a point for settlement; sometimes info obtained in discovery puts party in a good position to settle; when both sides have the same information it increases the likelihood of settlement; if parties settle, there is no appeals process (you can t appeal what you ve just agreed to), and any previous decisions don t matter (discovery motions, pleading motions, etc) a. PRESSURE TO CHOOSE ADJUDICATION OR ALTERNATIVE procedural devices that force the parties to engage and respond to each other i. DEFAULT JUDGMENT RULE 55 - we have this rule b/c at some point it becomes abusive for a D to hold P s case hostage; but judges in general don t like granting default judgment 1. Rule 55(a) Entry something a clerk can do upon showing that D has failed to plead or defend the case (ex. if D motions for 12(b)(6), which is denied, and then D does nothing after that; at that point P can move for default judgment b/c D is not otherwise defending) a. Entry of default is just the clerk s notation (not the same as judgment) 2. Rule 55(b) Judgment can be done by either clerk or judge a. Clerk: can enter judgment when the sum is certain (rare) b. Judge: you have to prove to the judge the amount you re entitled to; defense counsel may (probably will) be there to keep the recovery amount low (b/c they ve been notified as required by the rule), but they can t argue that the default judgment cannot be entered i. Entry of default decides liability the amount of damages is what is argued at the hearing (or whatever process judge chooses to conduct); at the end judge enters default judgment on the whole case 3. Rule 55(c) escape clause; court can set aside default entry and judgment for showing of good cause (courts are usually uncomfortable granting judgments ex parte when only one side is present) Rule 60(b) permits the reopening of a case even after judgment is entered on a default 4. Rule 55(d) Rule 55 applies in the same way for a plaintiff who ignores a defendant s counter-claim 5. Rule 55(e) no default judgment against the US 6. Timing of Filing for Default - Rule 12(a) states rules for when defendant must respond after being served with a summons, but if the rule says 20 days, you DON T file for default on the 21st day judges don t like that 7. Process for seeking default judgment - file an affidavit of service and that no responsive pleading has been received; have clerk enter default; then request that judgment be entered on the default; and unless sum certain for damages, probably going to have some kind of hearing [D can participate in this portion][both parties do not have rights to jury trial; judge, however, has full discretion to use jury] 8. Peralta v. Heights Medical Center hospital sued Peralta for unpaid debt incurred by one of Peralta s employees; hospital failed to properly serve Peralta, but hospital was granted default judgment anyway (b/c of clerk s error); Peralta s property was sold (for much less than it was worth and without his knowledge) to satisfy the debt a. Supreme Court reversed because this violated Due Process; the fact that Peralta might ve lost at trial b/c he had no defense did not matter; had he 12

been given the opportunity the course of events could ve been different (he could ve paid the $, etc); there s a reason for process there s a rational way to handle things (this case wasn t it) b. The default judgment didn t stand because it was inappropriately given; the default judgment should ve been set aside as permitted by Rule 60(b) ii. INVOLUNTARY DISMISSAL Rule 41(b) does to the plaintiff what default judgment does to the defendant 1. Differences between involuntary dismissal and default judgment: a. Time for filing for default is a bright-line test b. Standard for involuntary dismissal is less clear c. Only a party can move for default judgment, not the court d. Both the judge and adversary can raise the issue of involuntary judgment 2. Unless specified by the court, this type of dismissal operates as an adjudication on the merits case cannot be refiled iii. VOLUNTARY DISMISSAL Rule 41(a) 1. Allows plaintiff to dismiss at any time before the defendant answers 2. If defendant has answered, all parties must agree to the dismissal 3. Plaintiff can then refile the same cause of action once and only once; the first voluntary dismissal is without prejudice; after that it s an adjudication on the merits, and therefore a final ruling 4. Rule 41(a)(2) gives the judge broad discretion in deciding when to grant a voluntary dismissal after the defendant has answered except for situations stated in 41(a)(1), action cannot be dismissed at plaintiff s insistence without court order if defendant filed counterclaim before being served with plaintiff s motion to dismiss, the case will not be dismissed if defendant objects unless the counterclaim can stand on its own 5. Many courts routinely require plaintiffs seeking voluntary dismissal to pay the defendant s attorneys fees as a condition of granting motion b. AVOIDING ADJUDICATION works by contract; because cts will enforce contracts not to litigate or to litigate using special procedures, parties can choose the mechanism to resolve their disputes; parties have enormous freedom to write their own procedural rules i. Negotiation & Settlement 1. Pros of settlement: a. cheaper & faster than trials b. can take into account subtleties of the situation that might be lost at trial c. element of consent basic principle of justice d. can avoid bad publicity e. can negotiate inclusion of lawyers fees (which are usually not shifted in litigation) 2. Cons of settlement: a. leaves parties less satisfied than if trier heard their story b. permits might to triumph over right c. deprives the public of definitive adjudication of issues that may reach beyond the particular case 3. Reasons to settle: a. Party may run out of funds to pursue the litigation b. Settlement controls risk trials are unpredictable (especially involving jury), and usually all-or-nothing conclusion (risk that somebody will win everything and the other party gets nothing; this is less likely in mediation) 4. When settlement agreement is reached, the parties sign, not the lawyers, not the judge (when you settle, you re creating a contract) 5. If client wants to settle but counsel thinks it s a terrible offer: 13

ii.

a. Probably means there was a breakdown of communication at some point (did counsel not adequately advise client of the impact of the agmnt, or did client not share all the info with counsel?) b. Ultimately, client s decision 6. If facts later come to light that settlement was made on fraudulent terms, the settlement is invalidated (normal contract law applies fraud, duress, mistake, incapacity, unconscionability, etc.) 7. Simplest form of settlement release P agrees not to bring a lawsuit or to drop one already filed a. Judge does not need to review or approve the settlement, but would just have to grant P s motion to dismiss the case (if that s part of the deal) b. D would want dismissal to be involuntary so that case is dismissed with prejudice and then P is barred from refilling [claim preclusion] c. freedom to settle not up to the judge to decide if everyone got a fair deal (P w/meritorious claim may want to settle to get $ faster; D may settle on a frivolous claim if eager to move on) 8. If party breaches settlement agreement: a. Suit can be brought as a breach of contract cause of action, but then it will be placed at the end of the line of pending litigation b. If the parties had made the settlement agreement part of the court s dismissal decree, then the breach claim can immediately go back to the same court because it would be a violation of court order 9. Get everything in writing the settlement agreement, whatever is said to client on an important matter Third-Party Participation MEDIATION ( assisted negotiation ) 1. One of the main functions of mediation is to improve information flow across the table (non-mediated negotiations usually fail b/c divergent estimates of outcome and bad communication) 2. Mediators do not use Fed. Rules regarding discovery 3. Focus is on the parties they do the talking, not the lawyers 4. All forms of relief are available via mediation (damages, injunctive relief, etc.) via contract if the parties agree 5. Mediation process is confidential you cannot repeat what you learn in mediation session; can t use it in court; can t talk to media reason being so that you ll talk 6. Mediator does not rule on the rights and wrongs of the dispute; cannot tell parties what to do; is only there to help parties communicate their goals and suggest ways of accommodating them 7. Successful mediation results in an enforceable contract 8. Two ways for judges to actively manage litigation: a. Rule 16 pretrial conferences, scheduling conferences b. Alternative Dispute Resolution Act of 1998 requires federal judicial districts to offer parties (even after filing suit) alternatives to litigation i. Early neutral evaluation provides parties a reality check ; neutral party assesses strengths and weaknesses of both sides to lead to a more realistic negotiating position ii. Nonbinding arbitration arbitrator renders decision but parties are not bound by it; some states require that if a party insists on trial and then does no better at trial, they may be responsible for other side s costs

14

iii.

iv.

iii. Summary jury trial parties present their cases to jury in an abbreviated form; jury renders verdict; verdict serves as a basis for further negotiation Contracting for Confidentiality 1. Common stipulation of settlement: must remain confidential (extent can range from not speaking about any part of the dispute to not disclosing terms of the settlement) 2. Kalinauskas v. Wong - P filed sexual discrimination suit against D & sought to depose Thomas (former employee who also filed a sexual harassment suit, which settled via confidential settlement agreement); D filed for a protective order Rule 26(c) to stop P from deposing Thomas a. Ct held that P could depose Thomas (b/c hostile work environment claim made other employees claims relevant), but could not ask about specifics of her settlement agmnt b. Conflict Confidentiality vs. Need for Discovery (both in the Fed Rules) i. If cts can overrule confidentiality agreements, this might discourage similar settlements; privacy of settlement agmnt & contractual rights of parties deserve ct protection ii. But when a P files an action, they should be able to obtain information relevant to their case c. Confidentiality agreements are not absolute sealed docs are not necessarily sealed forever, they re subject to reevaluation later on Arbitration 1. Arbitrators have whatever power the parties give them, including injunctions or damages; in binding arbitration, the parties have signed a contract to be bound by the decision, so if the decision deals with what would in the ct sys be classified as injunctive relief, it's effective, so long as that was within the arbitration contract 2. Default procedural rules for arbitration are the Federal Rules (but the parties are free to agree to different rules) 3. Parties may also dictate applicable substantive law 4. Generally faster & cheaper; more private 5. Attorneys do the talking in arbitration 6. Parties who have entered a pre-dispute arbitration agmnt may be required to use arbitration as their exclusive forum, and a party bound by the agmnt may be enjoined from litigating (Federal Arbitration Act forces parties to honor their agmnt to arbitrate Supreme Ct has suggested that state cts are also bound to enforce this national policy) a. Section 2 agmnts to arbitrate valid as matter of federal law b. Section 3 Tells federal cts what to do if party files lawsuit in spite of arbitration agmnt (stay trial until arbitration occurs) c. Section 4 Jurisdiction (only when federal ct would have jurisdiction on underlying dispute); does NOT create federal ct C/A. d. If P, who was a party to an arbitration agmnt, files suit in ct, D can file motion to stay the trial, saying that the ct should not consider the litigation b/c the parties have agreed on arbitration (if D simply ignored the complaint, P would get a default judgment and then D would have to apply to overturn the judgment) e. The benefit of D filing motion to stay (as opposed to motion to dismiss the case) is that once the claim goes through binding arbitration, judge can order judgment on the complaint that P cannot challenge [very limited exceptions; i.e. proof arbitrator was corrupt] 15

7.

8.

9.

10.

11.

12.

D can also compel P to arbitrate, otherwise breach of contract; if P continues to breach, D can seek injunctive relief. Two Kinds of Limitations on Arbitration a. Nature of the claim b. Nature of the arbitration process Ferguson v. Countrywide Credit Industries, Inc. P not required to arbitrate claims for sexual harassment, retaliation, and hostile work environment against employer b/c arbitration agmnt found to be procedurally and substantively unconscionable. a. Procedural unconscionability concerns manner in which contract was negotiated & circumstances of parties at that time; needs 2 factors, oppression (inequality of bargaining power) & surprise (extent to which supposedly agreed upon terms of bargain are hidden) b. Substantive unconscionability focuses on terms of agmnt & whether those terms are so one-sided as to shock the conscience; contract of adhesion (take it or leave it) Carter v. Countrywide Credit Industries, Inc. ct held that D could pursue order to compel arbitration because arbitration agrmnts were not unconscionable, nor would their enforcement clash w/ any substantive provisions of the FLSA. Ct did hold that agmnt s fee-splitting provision imposed prohibitive costs on P; thus, ct simply severed this provision and ordered D to pay all arbitration costs. Ferguson v. Writers Guild dispute over screen credits; odd arbitration process parties didn t know who arbitrators were, and arbitrators didn t know who other arbitrators were; they would hand down anonymous decision w/o any explanation a. Ct denies P s request for new arbitration proceeding b/c the case was decided according to the rules and procedures set up by the industry; this sort of arbitration process makes no sense at all except for the people in it b/c they all follow it; the people who vote for their own guild rules vote to maintain this sys; state ct finds no reason to interfere Baseball Arbitration when liability is not contested, but parties cannot settle on damages, each side submits a figure and arbitrator must choose one or the other (nothing in between) a. This forces parties to submit numbers that are reasonable (b/c arbitrator can t split the difference if you submit an unreasonable amnt, you re only hurting yourself) Appealing Arbitration Decision (Scope of judicial review) a. Appeal to a ct is possible, but not generally useful because the ct will narrowly restrict the scope of its review: i. Did parties intend to arbitrate? (ct looks at the contractual agreement) ii. Is the arbitration award within the scope of the contract? b. So party can either challenge the contract, or argue that the award was outside the scope of the contract c. Ct can t go back and determine what it thinks is a fair award; that would render arbitration irrelevant i. Compared with appeals of ordinary judgments: 1. when trial ct makes factual determination or exercises discretion allowed by statute, appellate ct has limited scope of review (can ask only if trial ct abused its discretion) appellate ct would have to find that trial ct expressed prejudice, or was blind, or misunderstood the witnesses (but if there s anything in the evidence that 16

f.

supports the trial ct s resolution, the trial ct judgment will stand 2. but where trial ct made a legal finding, appellate ct has unlimited scope to take a second look (b/c trial ct has no special expertise that the appellate ct lacks), no deference to the trial ct (de novo review) c. SUMMARY JUDGMENT aims at avoiding an unnecessary trial (when evident there is only one winner) i. RULE 56 1. (c) motion will be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law; partial summary judgment may be granted (not appealable until the final judgment is entered) 2. (d) how the case will be handled at trial if partial summary judgment is granted 3. (e) affidavits must be fact-based, not opinion-based, and ct may allow them to be supplemented; opposing party cannot rest on its pleading, they must set forth specific facts showing there is a genuine issue for trial 4. (f) if party opposing the motion can present reasons for why they cannot present facts at that time, ct may deny judgment to allow time for more discovery 5. (g) if any affidavits are presented in bad faith or to cause delay, ct will order the party that presented them to pay the other party s reasonable expenses ii. Cts decide summary judgment motions based on various docs (affidavits, deposition transcripts, etc) ct is not permitted to make assessments of credibility, so summary judgment is granted only where no such assessment is needed iii. Affidavit sworn statement must state personal knowledge (cannot contain hearsay; the information must be such facts as would be admissible in evidence) iv. Celotex Corp. v. Catrett wife sued for death of her husband allegedly caused by exposure to asbestos 1. Prior to this case, rule for summary judgment was from Adickes v. SH Kress - Supreme Ct held D should not prevail at summary judgment if it was possible for P to prevail at trial (very lenient standard) 2. District ct granted D s motion for summary judgment holding that P had failed to prove proximate cause; Ct of Appeals reversed based on Adickes test 3. Supreme Ct held that whether P will be able to put together a good case at trial doesn t matter; what matters is the state of the evidence at the point summary judgment motion is filed 4. CELOTEX RULE: if you file a motion, it gets evaluated at that point, not by how it may appear in the future (P can no longer give ct IOUs) P must point to evidence in record that indicates that P could win. 5. No burden shift just b/c D filed motion doesn t shift burden of proof; the burden of proof in summary judgment remains on whoever has the burden in the underlying case 6. EFFECT of this case: a. Attys need to be much more thorough in discovery because summary judgment can t be defeated by arguing that you will have enough evidence by trial; there has to be enough evidence of material issue today b. District cts are now empowered to limit the time for discovery if attys need more time for discovery, they should request an extension prior to a motion for summary judgment c. Trend is that cts are more quick to grant summary judgment because they re getting rid of cases that don t belong in trial 17

Bias v. Advantage International - estate filed suit against agency for failure to take out jumbo life insurance policy on the decedent (basketball player); agent claimed that even if he pursued the policy it would ve been denied b/c jumbo policy application inquires into prior drug use; D filed for summary judgment 1. The estate presented general evidence (affidavits from parents & coach, drug test results) but this evidence did not rebut the specific evidence presented by D (testimony of two co-players who witnessed deceased use cocaine). To rebut, need testimony from someone familiar w/ particular events testified about OR cast more than metaphysical doubt on testimony credibility. Thus, ct held there is no genuine issue of material fact that decedent was cocaine user. 2. If P produced evidence of a particular insurance company that would ve granted a jumbo policy to a drug user, then case would ve survived summary motion b/c the drug use would ve been immaterial and D s error would ve mattered; P could ve filed for summary judgment and probably prevailed 3. RULE: In order to w/stand summary judgment motion once the moving party has made prima facie showing to support its claims, nonmoving party must come forward w/ specific facts showing that there IS a genuine issue for trial. 4. Summary judgment is appropriate where a party fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial d. JUDICIAL MANAGEMENT OF LITIGATION i. Judge is more like manager of disputes; they spend only small proportion of time presiding over trials ii. Rule 16 Pretrial Conferences, Scheduling, Management 1. Objectives of pre-trial conferences: speeding along the case, establishing management by the judge, discouraging wasteful activities, improving quality of the trial, facilitating settlement 2. After parties conduct their 26(f) conference and submit their discovery plan, or after scheduling conference, ct enters scheduling order schedule may be modified for showing of good cause 3. All pretrial conferences will be followed by an order reciting the action taken at the conference (order of final pretrial conference can be modified only to prevent manifest injustice) 4. Rule 16(f) sanctionable behavior: a. Fails to obey scheduling or pretrial order b. No appearance is made on behalf of party at conference c. Atty is substantially unprepared to participate in conference d. Atty fails to participate in good faith iii. Sanders v. Union Pacific Railroad - P sued his employer following a work-related injury; district ct issued a pre-trial order setting forth a schedule for filing of various docs; P s atty did almost nothing that was required in the order; district ct dismissed the case with prejudice to the P as sanction for failure to comply 1. P then requested a rehearing en banc (full circuit court panel); en banc hearing overturned the decision because judge let his clerk conduct the pre-trial conference (judge can t delegate that responsibility to a clerk); they also didn t like the sanction because judge had acted sua sponte (D s counsel had not requested the dismissal); judge should ve given notice to the parties to let them respond; Appellate ct remanded case to a different judge (slap on face to initial judge) a. The original ruling hurt P when they had done nothing wrong (sanctions other than dismissal could ve been imposed, ex. Fees, etc) v. 18

VI.

b. D loses in a sense b/c they filed all their paperwork and P had the benefit of extended time to read D s materials 2. P s atty could ve asked for extension as soon as he discovered he could not comply with the schedule (permitted in (b)(8) of Rule 16 showing of good cause ) iv. McKey v. Fairbairn P set forth C/A as negligence in pretrial order; later on during trial, counsel motioned to amend the pretrial order to include C/A under housing code regulations 1. Trial ct refused to let P amend the order (this is w/in the ct s discretion) this was a case of P s counsel failing to plead an obvious theory a. Should judge have been hands-off, or ensured case was decided on merits? b. Judge could/should not bring omission to counsel s attention b/c inconsistent w/ premise of the adversary system (limit surprises for opposing counsel) OR made it biased for either counsel 2. Issues at trial are limited to those presented during pre-trial, but facts often come up during trial a. P could motion to amend pleading (Rule 15) - pleadings can be amended in the middle of a trial, but there s no right to amend; you have to ask permission of the ct or written consent from other party, and it s granted only when justice requires b. Defense could argue that they ve already structured their case and it would be prejudicial to grant leave to amend c. Ct could: grant leave to amend and grant more time to D to restructure case, allow both sides to amend, declare a mistrial IDENTIFYING THE TRIER in close cases, it matters who holds the power of decision a. BIAS & RECUSAL i. Identity of the judge handling your case is extremely important b/c lawyers want information about how this judge conducts her ct ii. 28 USC 144 party may file affidavit stating specific facts and reasons for why they believe the judge is biased; must be filed no less than 10 days before beginning of the term (or else good cause must be shown); can only file one such affidavit in a case (must be certified by atty that it is made in good faith) if affidavit is sufficient, another judge will be assigned 1. Some states permit peremptory challenges of judges, but no such rule in federal system 2. must show in affidavit that any reasonable person would see that the judge is biased (can t use conclusory language; must state substantial facts) iii. 28 USC 455 rules for when judge must disqualify herself (subsection a is broad, b is more specific) 1. parties cannot waive necessity of judge to remove herself if it s for a reason stated in (b) 2. if judge discovers a fact during the litigation process that would require her to disqualify, she may remain as the judge if she divests herself of the interest that would be the grounds for disqualification iv. 28 USC 351 process of filing complaint against a judge v. In re Boston s Children First judge contacted reporter to respond to lawyer s inflammatory comment to the press 1. this judge was not explaining court procedure to the reporter; she was taking her shot at the lawyer; the provision that allows judges to explain procedures of the court is meant for seminars, etc., not communications with tabloids 2. judge could not have invited just one counsel to privately discuss the matter (ex parte); in adversarial system, other counsel is entitled to hear everything that goes on in the case 19

a. if judge brought both attorneys into chambers and reprimanded the attorney for making inflammatory statements to the press, the attorney could then turn around and claim the judge is biased and motion for recusal 3. Judge should not have said anything; can t comment on pending litigation vi. District court and court of appeals judges can fill in for each other, even if judge has to be brought in from another district but if Supreme Court justice is recused, the court operates with less justices vii. Courts have held that 144 incorporates the substantive provisions of 455 (the substantive standards for disqualification are the same under both sections) b. RIGHT TO JURY TRIAL i. Seventh Amendment in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved 1. Specific Performance vs. Damages damages are generally for jury trials (this true 80% of the time) 2. Common law writs: a. Trespass b. Debt c. Covenant d. Ejectment e. Trover & replevin f. Assumpsit g. Mandamus 3. Equity: (has some financial power so just because dollars will change hands doesn t automatically mean it s an issue at common law) a. Injunction b. Cancellation c. Rescission d. Accountings 4. Historical test to determine if suit is jury-demandable: whether a given claim lay within the jurisdiction of the common law courts in 1791 5. Seventh Amendment right can be extended but not diminished a. Congress can add new claims that are jury demandable, but can t shrink the protections of the Constitution 6. Seventh Amendment does not apply to state courts, only federal (but most state constitutions have civil jury trial provisions) ii. Chauffeurs v. Terry plaintiffs (workers) filed suit against union seeking compensatory damages for back pay and benefits; court held that the case was jury demandable 1. Court first looks at whether this claim would ve been historically brought in court of law or court of equity; looks for analogies 2. Court then determines what type of remedy plaintiff seeks (legal or equitable) iii. Rule 38 incorporates the Seventh Amendment 1. Party can demand jury for any jury-triable issue by (can insert a demand directly into its pleading): a. Serving a demand to the other party, AND b. Filing a demand as required by rule 5(d) 2. Party can specify in demand if they only want certain jury-triable issue to go to the jury (adversary can demand jury for the rest of the issues if it wants to) 3. Failure to demand a jury constitutes a waiver iv. Rule 39 after demanding a jury, parties via written or oral stipulation can consent to a bench trial 1. Court has to the discretion to order a jury trial in spite of a party s failure to demand it 20

v.

vi.

2. Court may try any issue with an advisory jury (even if the issue is not jurydemandable), or may order a regular jury trial with the consent of both parties If legal and equitable claims and defenses are found in the same case 1. Amoco Oil Co. v. Torcomian father & son wanted to take over gas station and become franchisees a. Holdings from Beacon case: i. Just because a case mixes both legal and equitable claims does not defeat the right to jury trial ii. Jury trial goes first, before any hearing on equitable claims, and the jury s findings control any common factual issues b. Law of the Case Doctrine - type of res judicata; once an issue has been decided in a case, it can t be reevaluated i. Once a fact in litigation is determined, it s determined for the entire litigation; sometimes resolution of common law issue will impact on resolution of the equity issue ii. If jury trial goes first, then the jury s findings of fact are binding on issues in equity actions c. Both sides in this case made claims that were jury-demandable; district court erred in not allowing jury trial i. But if circuit court had found that case would not have survived directed verdict, then the jury is a moot point (it wasn t); appellate courts don t reverse trial court decisions if it doesn t matter Choosing a Jury 1. At common law, jury used to be 12 people and verdict had to be unanimous; no longer true today Supreme Court has allowed 6 people juries and non-unanimous verdicts 2. Reexamination Clause - no fact tried by a jury shall be otherwise reexamined by any court in US than according to the rules of common law; serves to bolster jury power by preventing trial and appellate courts from overturning jury verdicts 3. 28 USC 1861 states policy that all litigants are entitled to juries representing a fair cross section of the community, and that all citizens have the opportunity to be considered for a jury 4. 28 USC 1862 discrimination prohibited 5. 28 USC 1865 qualifications for jury service 6. 28 USC 1867 challenging compliance with jury selection procedures 7. 28 USC 1870 right to 3 peremptory challenges 8. Challenge for cause must present good reason to believe that the juror is bias, or on any challenge of the juror s competency; form of a request (you don t get to remove juror for cause, only judge gets to remove) 9. Peremptory challenge something a lawyer does; lawyers used to have total freedom regarding peremptory challenges (could strike juror for any reason or no reason at all); Supreme Court beginning in mid-80s held that peremptory challenges could not be used to further discrimination that was otherwise protected under the Constitution (Batson); race and gender are two categories that it is impermissible for lawyer to strike based upon complex issue a. Peremptory challenges are not in Constitution and could be eliminated; England has abolished them (believing that random selection is the best way to get unbiased jury) 10. Voir Dire process of jury selection a. Preliminary way for lawyer to present the case to the jury (via the questions asked, tone of voice, etc.) 21

b. Procedures vary enormously (ex. in Fed court, judge conducts the whole process; in NY courts, lawyers practically put on their case) 11. Thompson v. Altheimer & Gray juror said her experience as a business owner may cloud her judgment; circuit court reversed trial judge should not have left her in without getting an unequivocal statement from her that she could follow the judge s instructions and be open-minded

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CONSTITUTION Article III judicial power / jurisdiction 14th Amendment Due Process 7th Amendment Right to Jury Trial TITLE 28 USC 28 USC 144 28 USC 455 28 USC 1291 Final Judgment rule 28 USC 1292 exception to final judgment rule 28 USC 1861 28 USC 1862 28 USC 1865 28 USC 1867 28 USC 1870 FEDERAL FORMS 1-19 FEDERAL RULES

7 Pleadings Allowed; Form of Motions 8 General rules of Pleading a) Claims for relief (complaint) b) Defenses; Form of Denial (answer) c) Affirmative Defenses d) Effect of Failure to Deny e) Pleadings to be Concise 9 Pleading Special Matters (fraud) 10 Form of Pleadings 11 Signature; Representations to the Court; Sanctions 12 Defenses and Objections a) When Presented b) How Presented (defense states in pleading except for pre-answer motions) c) Motion for Judgment on the Pleadings d) Preliminary Hearings e) Motion for More Definite Statement f) Motion to Strike g) Consolidation of Defenses in Motion h) Waiver or Preservation of Certain Defenses 13 Counterclaim and Cross-Claim 15 Amendments & Supplemental Pleadings 16 Pretrial Conferences, Scheduling, Management
17 Parties Plaintiff and Defendant; Capacity 18 Joinder of Claims and Remedies 19 Joinder of Persons Needed for Just Adjudication 20 Permissive Joinder of Parties 21 Misjoinder and Nonjoinder of Parties 22 Interpleader 23(e) Settlement, Voluntary Dismissal, or Compromise in Class Action 24 Intervention 25 Substitution of Parties

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26 General Provisions Governing Discovery a) Required Disclosures 1. Initial Disclosures 2. Expert Testimony 3. Pretrial Disclosures b) Discovery Scope and Limits 1. General 2. Limitations 3. Trial Preparation: Materials 4. Trial Preparation: Experts 5. Claims of Privilege or Protection of Trial Preparation Materials c) Protective Orders d) Timing and Sequence of Discovery e) Supplementation of Disclosures and Responses f) Conference of Parties g) Signing of Disclosures, etc.
27 Deposition Before Action or Pending Appeal 28 Persons Before Whom Depositions May Be Taken 29 Stipulations Regarding Discovery Procedure

30 Depositions Upon Oral Examination 31 Depositions Upon Written Questions

32 Use of Depositions in Court Proceedings

33 34 35 36 37 38 39

Interrogatories to Parties Production of Documents, Electronically Stored Info, Things and Entry Upon Land Physical and Mental Examinations Requests for Admission Failure to Make Disclosures or Cooperate in Discovery; Sanctions Jury Trial of Right Trial by Jury or by the Court

40 Assignment of Cases for Trial

41 Dismissal of Actions a) Voluntary Dismissal b) Involuntary Dismissal

42 Consolidation; Separate Trials

45 47 48 50 54 55 56 57
58 59 60 61

Subpoena Selection of Jurors Number of Jurors Participation in Verdict Judgment as Matter of Law in Jury Trials (Directed Verdict & JNOV) Judgments; Costs Default Judgment Summary Judgment Declaratory Judgments
Entry of Judgment New trials; Amendment of Judgments Relief from Judgment or Order Harmless Error

65 Injunctions preliminary injunctions and TROs

24