Civ Pro Master Outline

8/6/2019 Civ Pro Master Outline

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CIVIL PROCEDURE FALL 07 PROF. DIFONZO

I. OVERVIEW OF PROCEDUREa. SUBJECT MATTER JURISDICTIONb. PERSONAL JURISDICTIONc. VENUEd. SERVICE OF PROCESSe. COMPLAINTf. RESPONSEg. JOINDERh. DISCOVERYi. SUMMARY JUDGMENT

j. TRIALk. JUDGMENT AS A MATTER OF LAWl. FORMER ADJUDICATIONm. APPEALS

II. INCENTIVES TO LITIGATEa. LITIGATION IN THE US

i. Current state of litigation (pgs 259-264)b. SUBSTITUTIONARY REMEDIESi. Compensatory Damages

1. Cash amounts intended to make the injured party whole2. Economic damages = lost wages, medical bills, etc.3. Other damages = pain & suffering, emotional distress, harm to reputation4. 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 calculatingdamages; 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, notspecifically tied to the amount of loss suffered (ex. Copyright Act)

iv. Punitive Damages exception to the general rule that damages serve only to compensateplaintiff; in some jurisdictions plaintiffs seeking punitive damages may introduce testimony as

to the defendants net worth

c. SPECIFIC REMEDIESi. 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 obtainequitable remedy, plaintiff must show that legal remedy is inadequate

d. DECLARATORY RELIEF Rule 57i. 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 orcontroversies no declaratory judgment on hypotheticals

iii. Declaratory relief may be chosen by a party even though other avenues are opene. 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 defenseas 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


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iii. Public Subsidies & Professional Charityiv. Fee Spreading to Fee Shifting (exceptions to American Rule)

1. Common Fund theory shares fees among similarly situated persons rather thanshifting them to the opposing party in the lawsuit

2. Contract parties may contract ahead of time for fee shiftinga. Asymmetrical (ex. tenant pays landlords lawyer if evicted, but landlord

doesnt have to pay tenants lawyer if eviction effort fails)

b. Symmetrical loser pays winners lawyer3. Common Law plaintiff may have to pay defendants lawyers fees if brought suit thatwas 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 attorneys fee as

part of the costs

a. Some courts have interpreted prevailing party as symmetrical fee shifting;others have interpreted it as prevailingplaintiffs (interpreting legislative

intent as trying to make enforcement of civil rights easier, not harder)

f. PROVISIONAL REMEDIESi. Preliminary Injunctions & Temporary Restraining Orders Rule 65

1. Preserves the status quo so that any final relief granted by the court can be effective2. 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 harmb. They are likely to succeed later on in trialc. 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 interest4. Preliminary injunctions are appealable 28 USC 1292(a)(1) allows interlocutory

appealsii. Provisional Remedies & Due Process 14th Amendment

III. PLEADINGa. Two central functions of pleading:

i. Enable the parties to reach converging estimates of a cases values (eliminates some legaltheories, sharpens the basis for the dispute)

ii. Define the ground to be covered in discoveryb. COMPLAINT

i. RULE 8(a) short and plain statement of the claim showing that the pleader is entitled torelief 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 law2. 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 amendc. 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 plaintiffs lawyer has a fair amount of time to investigate thefacts and law surrounding the claim (unless statute of limitations is about to run), defendants

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


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ii. RULE 12(a)(4) alters time period for responsive pleading if defendant makes a pre-answermotion (ex. if court denies motion or postpones judgment on motion, defendant has 10 days

after notice of courts action to file pleading)

iii. RULE 7 (a) states the types of pleadings permitted; (b) states that a motion is a request tothe court for a court order (must be in writing, unless during trial, and signed as per Rule 11)

iv. Pre-Answer Motion permits defendant to raise certain types of objections to the action at avery early stage of litigation RULE 12(b)

1. Such motions are attractive to defendants because can result in quick andinexpensive dismissal of a case2. A motion can be one document or contain several documents:

a. Motion itself a request for specific relief soughtb. Notice of the motion tells opposing party when the motion will be heardc. 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), thenthe motion is treated as one for summary judgment

4. Rule 12(e) motion for more definite statement motion must be made beforeresponsive pleading (makes sense; how can you respond to a complaint and then

motion that its too vague)

5. Rule 12(f) motion to strike defendant may move to strike part of claim that is notrecoverable 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 thedetermination for trial

7. RULE 12(g) & (h) rule 12(b)(2)-(5) defenses are waived if not motioned or pleaded ina 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 thecourt shall dismiss the action 12(h)(3)

v. Answer responds to the allegations of the complaint and asserts any additional informationor affirmative claims that defendant may have against plaintiff

1. Denials (traverse) RULE 8(b) requires defendant to deny only those allegationsthat 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 veryfew cases can defendant deny every allegation and not risk Rule 11 sanctions)

c. ielinski v. Philadelphia Piers plaintiff filed suit against PPI thinking theyowned and operated the forklift that caused injury; defendant denied theallegation because they had sold operation of the business to CCI (but still

maintained ownership of forklift); court held that defendant shouldve given a

more specific response and this wouldve 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)


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a. RULE 8(c) affirmative defenses cannot be brought up at trial if omitted inthe 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 affirmativedefense came out of discovery (depends if done in good faith)

b. Layman v. Southwestern Bell court held that easement agreement was anaffirmative defense and shouldve been raised in pleading; Court says that a

defense is an affirmative defense if it rests upon a fact not included in theallegations 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 thepleadings (if any materials outside the pleadings are attached and not excluded by the

court, then its 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 15i. Tension between:

1. Easy amendment allows the pleadings to reflect the parties changed view of thecase as it develops

2. Prejudice at some point the other side has to make decisions about how to presentits 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, orif 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 theoriginal 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, butthen discovered it wasnt their slide and motioned to amend pleading; court held thatamendment 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

iv. Moore v. Baker plaintiff was not granted leave to amend her complaint to add a claim ofnegligence 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 defendants failure to informpriorto thesurgery, but proposed amended complaint refers to defendants actions during and

afterthe surgery; there was nothing in the original complaint that made reference tonegligence, so theres 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 originalcomplaint 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 defendants attention by the original pleading; the court reasoned that


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both complaints stemmed from the same facts (negligent maintenance of the basketball court

/ negligent rehabilitation care)

vi. RULE 15(c) defines the line between permitted and unpermitted amendments in terms ofthe 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 theories2. Rule 15(c)(3) a new party can be named in an amended complaint if:

a. the claim against them arose out of the sameconduct/transaction/occurrence set forth in original complaintb. 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 wouldnt be at a terrible

disadvantage)

d. they knew or should have known that but-for a mistake in originallyidentifying the party the action wouldve been brought against them

IV. DISCOVERYa. FEDERAL RULES 26-37

i. Rule 26(a)(1) Initial Disclosures without being asked, parties must provide (within 14 daysafter Rule 26(f) conference):

1. Name, address, telephone # of each person likely to have discoverable informationthat disclosing party may use to support its case, unless solely for impeachment

(showing that the witness is a l iar)

2. Copy of or description of all documents that disclosing party may use3. 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 policies5. (E) states categories of suits that are exempt from initial disclosure

ii. Rule 26(a)(2) Disclosure of Expert Testimony1. 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 reportmust include)

3. Disclosure must be made at least 90 days before trial, or if the testimony is to be usedto rebut evidence by opposing sides 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 atranscript of the pertinent parts of the depo

3. Identification of each document or exhibit party expects to offer and those which theparty may offer if necessary

4. Opposing party has 14 days after such disclosure to file objections; objections notfiled are waived (unless excused by court for good cause)

iv. Rule 26(a)(4) - all required disclosures (above) must be in writing, signed and servedv. Rule 26(b)(1) General Scope of Discovery broad scope

1. Parties may obtain discovery regarding any matter that is not privileged that isrelevant to the claim or defense of any party

2. For good cause, court may order discovery of any relevant matter3. Relevant information need not be admissible at trial if the it is reasonably calculated

to lead to discovery of admissible evidence


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vi. Rule 26(b)(2) Limitations1. Court can alter # of depositions or interrogatories, and requests for admissions2. Party doesnt have to provide electronically stored info if it can prove that its 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 infoc. The burden of proposed discovery outweighs its likely benefitvii. 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 materials2. Unable to obtain the substantial equivalent of the materials by other means without

undue hardship

viii. Rule 26(b)(4) Trial preparation experts1. 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 inRule 35(b) or upon showing of exceptional circumstances

3. Party seeking discovery must pay the expert a reasonable feeix. Rule 26(c) Protective Orders

1. Party may motion for protective order; motion must include certification that partytried 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 grantx. Rule 26(d) Timing and Sequence of Discovery

1. Parties may not seek any discovery before the Rule 26(f) conference2. Methods of discovery may be used in any sequence

xi. Rule 26(e) Supplementation of Disclosures and Responses1. 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 besupplemented

xii. Rule 26(f) Conference requires parties to confer about the case and come up with a planfor 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 discoveryxiv. RULE 29 allows parties to write their own discovery rules

b. MODERN DISCOVERYi. 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 downwithout regard to the merits of the case

ii. Broad discovery rules permits lawyers to uncover enormous amounts of informationiii. 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


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i. Relevance to be discoverable, information must be relevant either to a claim or defense ofthe parties; relevance links discovery to pleadings

1. Davis v. PrecoatMetals plaintiffs filed discrimination suit against employer, claiminghostile 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 adiscovery request of the other side and defendant refused; you must serveopposing 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 depositionquestion about whether he had engaged in homosexual acts because it was irrelevant

to the defendants stated reason for discharging him (that he statedhe was a

homosexual)

ii. Privilege Rule 26(b)(5) - has nothing to do with relevance of the information; privilegestypically block information from a particular source (theyre 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 implicitlyby an action inconsistent with the privilege

a. If party puts something at issue (ex. mental condition), the party cannot thenblock discovery by claiming privilege

d. PROCEDURES & METHODSi. 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 disclosingparty 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 Disclosurea. Defendant is served or waives service according to Rule 4b. Defendant appears in the suit by filing pre-answer motion or answer Rule 12c. Parties must meet as soon as possible or at least 21 days before scheduling

conference Rule 26(f)

d. Within 90 days after defendants appearance or 120 days after service, judgeholds 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 exchangedisclosures at least 7 days before scheduling conference)

ii. Interrogatories & Depositions1. 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 anyparty(non-party witness is not required to respond tointerrogatory)

b. Should not exceed 25 questions (must request leave of court to ask more)


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c. Business may offer party opportunity to examine business records to deriveanswers to interrogatory

2. Depositions like questioning a witness at trial without the judge; there are expensesto all concerned

a. Lawyer asks questions and witness must answer under oathb. Deposing party must arrange for some form of recording or transcriptionc. Limits

i. The total # of depositions taken by one side may not exceed 10ii. No deposition may exceed a day of 7 hoursiii. 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 ofe. Rule 30 rules for depositions taken upon oral examination

i. Lawyer can object, but then witness continues answering thequestion

ii. Deposition can only be stopped if opposing counsel is askingquestions to harass, embarrass, etc. or if the information being asked

is privileged

f. Rule 31 rules for depositions taken upon written questions (rarely usedprocedure)

g. Rule 32 use of depositions in court proceedingsiii. Production & Inspection of Documents/Things Physical & Mental Exams

1. Rule 34 permits inspection of land, objects and documents (documents includes anymedium for recording information)

a. The request for inspection differs between parties and non-parties (requiressubpoena 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 sidephysically or mentally examined; requires showing of good cause and that the

condition be in controversyiv. Requests for Admission

1. Rule 36 more like a pleading device than one for discovery; because of system ofnotice pleading a lot information doesnt appear in the pleadings, so Rule 36 provides

a device for you to request to admit whats 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 adenial or a detailed reason why the party cannot truthfully admit or deny the

matter)

i. Party cant claim lack of knowledge unless theyve made a reasonableinquiry

v. Ensuring Compliance1. Rule 26(g) punishes the parties for unjustified requests and refusals even when theparties 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 signers knowledge,formed after reasonable inquiry, the information is complete and accurate as

of the time its disclosed

b. For requests, responses and objected, signature certified that in theknowledge of signer, formed after reasonable inquiry, the request is:


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i. Consistent with rules or poses good faith argument for modificationof existing law

ii. Not being presented for improper purposeiii. Not unreasonable or unduly burdensome considering the specific

nature of the case

2. Rule 37 Failure to Make Disclosures or Cooperate in Discoverya. 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 outwith other party first before seeking court order)

b. Same as above for depositions, designations bycorporations, interrogatories,and Rule 34 requests

c. Evasive or incomplete disclosure is treated as a failure to disclosed. If motion is granted or opposing party disclosed requested information after

motion was filed, court will require opposing party to pay moving partys

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 partys nondisclosure was substantially justified

e. If motion is denied, court may enter protective order and will require movingparty to pay opposing partys incurred expenses (unless)

f. If motion is partially granted/denied, court may apportion the reasonableexpenses

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, respondto 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 sanctionablej. Failure to participate in development and submission of proposed discovery

plan (in Rule 26(f) conference) may be sanctionede. DISCOVERY & PRIVACY

i. Rule 26(c) permits a party to seek a protective order and gives the judge broad power toprevent abusive discovery

1. Stalnaker v. Kmart Corp. plaintiff filed sexual harassment claim against defendantand 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 discoverya. 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 cause2. 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 orat trial


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ii. Rule 35 places special limits on the use of discovery to compel physical or mentalexaminations; 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 tractortrailer; 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 cant be applied to defendants

a. Court held that the rule 35 applies to all parties, but bus driver did not haveto submit to the examinations because moving parties had failed to makeaffirmative showing that defendants 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 ofMandamus - allows a party to jump the tracks of the proceduralsystem. This is very rare, and it was used here to order someone to do

something. Writ ofProhibition is the flipside, ordering someone not to do

something, but theyre both writs of mandamus. Wants court to redirect

order of judge. Writ cant be used as a substitute for appeal; instead its 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; theyre

not reversing anything they have to order an original judgment

f. DISCOVERY IN AN ADVERSARY SYSTEMi. 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; plaintiffs attorney

requested all materials but defendants attorney refused, claiming attorney-client privilege

1. Court held that materials were not privileged, but attorney did not have to hand overthe documents because plaintiff had not proven necessity or undue hardship

2. Work Product Doctrine what lawyer thinks, who she interviews, what they said, isdiscoverable 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 ofrelevant/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 Information1. 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 preparationfor litigation (difference between your usual treating physician vs. expert physician);

one isfact witness and the other expert witness; what matters is how youre 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 mustestablish 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 shieldpsychological records; court held that records were discoverable; a psychological

examination 10 days after plaintiffs 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 informationa. defendant could not have hired their own expert to examine the plaintiff b/c

results 10 days after her termination wouldve been potentially different than

results a year later

b. plaintiff cant argue that defendant waited too long b/c plaintiff had to firstfile 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/VBolero defendant was supposed to transport certain amount ofbananas for plaintiff; plaintiff had someone survey the ship once it arrived; defendant

applied to compel discovery of plaintiffs 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 expertwitness under 26(b)(4)(B) and because defendant had not proven exceptional

circumstances (defendant didnt conduct discovery when they could have)

b. Rule 26(b)(4)(B) limits discovery of experts that are used in a consultativemanner (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 adversarys mill)

g. ENSURING COMPLIANCE AND CONTROLLING ABUSEi. 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 theres 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 stonewalling3. 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 withgreater means could be very relevant in cases involving parties of unequal means)

iv. Rule 26(c) permits any party to seek a protective orderv. Rule 16 discovery conference

vi. Thompson v. Dept of HUD - Class action suit alleging the establishment and perpetuation ofracial segregation in Baltimores 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 throughdiscovery is worth it; this court deliberately chose not to provide a quick answer, but


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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 defendants golf cart; court grantedplaintiffs 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 isnt

V. RESOLUTION WITHOUT TRIAL technically, point of pleading and discovery is to get to trial but they alsoget 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 cant appeal what youve just agreed to), and any previous decisions dont matter

(discovery motions, pleading motions, etc)

a. PRESSURE TO CHOOSE ADJUDICATION OR ALTERNATIVE procedural devices that force the partiesto engage and respond to each other

i. DEFAULT JUDGMENT RULE 55 - we have this rule b/c at some point it becomes abusive for aD to hold Ps case hostage; but judges in general dont like granting default judgment

1. Rule 55(a) Entry something a clerk can do upon showing that D has failed to pleador 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 clerks notation (not the same asjudgment)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 youre entitled to; defense

counsel may (probably will) be there to keep the recovery amount low (b/c

theyve been notified as required by the rule), but they cant argue that the

default judgment cannot be entered

i. Entry of default decides liability the amount of damages is what isargued 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 forshowing 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 defendantscounter-claim

5. Rule 55(e) no default judgment against the US6. Timing ofFilingfor 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 DONT

file for default on the 21st day judges dont like that

7. Process for seeking default judgment - file an affidavit of service and that noresponsive 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 byone of Peraltas employees; hospital failed to properly serve Peralta, but hospital was

granted default judgment anyway (b/c of clerks error); Peraltas 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 thatPeralta mightve lost at trial b/c he had no defense did not matter; had he


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been given the opportunity the course of events couldve been different (he

couldve paid the $, etc); theres a reason for process theres a rational way

to handle things (this case wasnt it)

b. The default judgment didnt stand because it was inappropriately given; thedefault judgment shouldve been set aside as permitted by Rule 60(b)

ii. INVOLUNTARY DISMISSAL Rule 41(b) does to the plaintiff what default judgment does tothe defendant

1. Differences between involuntary dismissal and default judgment:a. Time for filing for default is a bright-line testb. Standard for involuntary dismissal is less clearc. Only a party can move for default judgment, not the courtd. 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 themerits case cannot be refiled

iii. VOLUNTARY DISMISSAL Rule 41(a)1. Allows plaintiff to dismiss at any time before the defendant answers2. If defendant has answered, all parties must agree to the dismissal3. Plaintiff can then refile the same cause of action once and only once; the first

voluntary dismissal is without prejudice; after that its 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 voluntarydismissal after the defendant has answered except for situations stated in 41(a)(1),

action cannot be dismissed at plaintiffs insistence without court order if defendant

filed counterclaim before being served with plaintiffs 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 thedefendants attorneys fees as a condition of granting motion

b. AVOIDING ADJUDICATION works by contract; because cts will enforce contracts not to litigate or tolitigate using special procedures, parties can choose the mechanism to resolve their disputes;parties

have enormous freedom to write their own procedural rules

i. Negotiation & Settlement1. Pros of settlement:

a. cheaper & faster than trialsb. can take into account subtleties of the situation that might be lost at trialc. element ofconsent basic principle of justiced. can avoid bad publicitye. 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 storyb. permits might to triumph over rightc. deprives the public of definitive adjudication of issues that may reach beyondthe particular case

3. Reasons to settle:a. Party may run out of funds to pursue the litigationb. 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 thejudge (when you settle, youre creating a contract)

5. If client wants to settle but counsel thinks its a terrible offer:


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a. Probably means there was a breakdown of communication at some point (didcounsel not adequately advise client of the impact of the agmnt, or did client

not share all the info with counsel?)

b. Ultimately, clients decision6. 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 onealready fileda. Judge does not need to review or approve the settlement, but would just

have to grant Ps motion to dismiss the case (if thats part of the deal)

b. D would want dismissal to be involuntary so that case is dismissed withprejudice 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 (Pw/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 courtsdismissal 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 animportant matter

ii. 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 discovery3. Focus is on the parties they do the talking, not the lawyers4. 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 mediationsession; cant use it in court; cant talk to media reason being so that youll talk

6. Mediator does not rule on the rights and wrongs of the dispute; cannot tell partieswhat to do; is only there to help parties communicate their goals and suggest ways of

accommodating them

7. Successful mediation results in an enforceable contract8. Two ways for judges to actively manage litigation:

a. Rule 16 pretrial conferences, scheduling conferencesb. Alternative Dispute Resolution Act of 1998 requires federal judicial districts

to offer parties (even after filing suit) alternatives to litigationi. 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 arenot 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 sides

costs


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iii. Summary jury trial parties present their cases to jury in anabbreviated form; jury renders verdict; verdict serves as a basis for

further negotiation

iii. Contracting for Confidentiality1. 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 deposeThomas (former employee who also filed a sexual harassment suit, which settled viaconfidential 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 claimmade 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 obtaininformation relevant to their case

c. Confidentiality agreements are not absolute sealed docs are not necessarilysealed forever, theyre subject to reevaluation later on

iv. Arbitration1. 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 freeto agree to different rules)

3. Parties may also dictate applicable substantive law4. Generally faster & cheaper; more private5. Attorneys do the talking in arbitration6. 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 Actforces 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 lawb. 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 onunderlying 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 motionto stay the trial, saying that the ct should not consider the litigation b/c theparties 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 thecase) 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]


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f. D can also compel P to arbitrate, otherwise breach of contract; if P continuesto breach, D can seek injunctive relief.

7. Two Kinds of Limitations on Arbitrationa. Nature of the claimb. Nature of the arbitration process

8. Ferguson v. Countrywide Credit Industries, Inc. P not required to arbitrate claims forsexual 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 thoseterms are so one-sided as to shock the conscience; contract of adhesion (take

it or leave it)

9. Carter v. Countrywide Credit Industries, Inc. ct held that D could pursue order tocompel arbitration because arbitration agrmnts were not unconscionable, nor would

their enforcement clash w/ any substantive provisions of the FLSA. Ct did hold that

agmnts fee-splitting provision imposed prohibitive costs on P; thus, ct simply severed

this provision and ordered D to pay all arbitration costs.

10.Ferguson v. Writers Guild dispute over screen credits; odd arbitration process parties didnt know who arbitrators were, and arbitrators didnt know who other

arbitrators were; they would hand down anonymous decision w/o any explanation

a. Ct denies Ps request for new arbitration proceeding b/c the case was decidedaccording 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

11.Baseball Arbitration when liability is not contested, but parties cannot settle ondamages, 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

cant split the difference if you submit an unreasonable amnt, youre only

hurting yourself)

12.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 contractualagreement)

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 contractc. Ct cant 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 theres anything in the evidence that


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supports the trial cts resolution, the trial ct judgment will

stand

2. but where trial ct made a legal finding, appellate ct hasunlimited 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 onewinner)

i. RULE 561. (c) motion will be granted ifthere 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 granted3. (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 presentfacts 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 theparty that presented them to pay the other partys reasonable expenses

ii. Cts decide summary judgment motions based on various docs (affidavits, depositiontranscripts, 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 statepersonal knowledge (cannot contain hearsay; theinformation 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 toasbestos

1. Prior to this case, rule for summary judgment was fromAdickes v. SH Kress - SupremeCt 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 Ds motion for summary judgment holding that P had failed toprove proximate cause; Ct of Appeals reversed based onAdickes test

3. Supreme Ct held that whether P will be able to put together a good case at trialdoesnt 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 mayappear 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 doesnt shift burden of proof; the burden ofproof 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 summaryjudgment cant 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 needmore time for discovery, they should request an extensionpriorto a motion

for summary judgment

c. Trend is that cts are more quick to grant summary judgment because theyregetting rid of cases that dont belong in trial


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v. Bias v. Advantage International- estate filed suit against agency for failure to take out jumbolife insurance policy on the decedent (basketball player); agent claimed that even if he

pursued the policy it wouldve 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 testresults) 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 morethan 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 wouldve granted ajumbo policy to a drug user, then case wouldve survived summary motion b/c the

drug use wouldve been immaterial and Ds error wouldve mattered; P couldve filed

for summary judgment and probably prevailed

3. RULE: In order to w/stand summary judgment motion once the moving party hasmade 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 toestablish the existence of an element essential to that partys case, and on which that

party will bear the burden of proof at trial

d. JUDICIAL MANAGEMENT OF LITIGATIONi. Judge is more like managerof disputes; they spend only small proportion of time presiding

over trials

ii. Rule 16 Pretrial Conferences, Scheduling, Management1. 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 afterscheduling 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 theconference (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 orderb. No appearance is made on behalf of party at conferencec. Atty is substantially unprepared to participate in conferenced. Atty fails to participate in good faith

iii. Sanders v. Union Pacific Railroad- P sued his employer following a work-related injury; districtct issued a pre-trial order setting forth a schedule for filing of various docs; Ps 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 comply1. 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 cant delegate that responsibility to a clerk); they also didnt like the sanction

because judge had acted sua sponte (Ds counsel had not requested the dismissal);

judge shouldve given notice to the parties to let them respond; Appellate ct

remanded case to a differentjudge (slap on face to initial judge)

a. The original ruling hurt P when they had done nothing wrong (sanctions otherthan dismissal couldve been imposed, ex. Fees, etc)


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b. D loses in a sense b/c they filed all their paperwork and P had the benefit ofextended time to read Ds materials

2. Ps atty couldve asked for extension as soon as he discovered he could not complywith the schedule (permitted in (b)(8) ofRule 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 cts discretion) this was acase of Ps 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 counsels 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 upduring trial

a. P could motion to amend pleading (Rule 15) - pleadings can be amended inthe middle of a trial, but theres no right to amend; you have to ask

permission of the ct or written consent from other party, and its granted only

when justice requires

b. Defense could argue that theyve already structured their case and it wouldbe 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

VI. IDENTIFYING THE TRIER in close cases, it matters who holds the power of decisiona. BIAS & RECUSAL

i. Identity of the judge handling your case is extremely important b/c lawyers want informationabout how this judge conducts her ct

ii. 28 USC 144 party may file affidavit stating specific facts and reasons for why they believethe 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 federalsystem

2. must show in affidavit that any reasonable person would see that the judge is biased(cant use conclusory language; must state substantial facts)

iii. 28 USC 455 rules for when judge must disqualify herself (subsection a is broad, b is morespecific)

1. parties cannot waive necessity of judge to remove herself if its for a reason stated in(b)

2. if judge discovers a fact during the litigation process that would require her todisqualify, 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 judgev. In re Bostons Children First judge contacted reporter to respond to lawyers inflammatorycomment to the press

1. this judge was not explaining court procedure to the reporter; she was taking her shotat 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 (exparte); in adversarial system, other counsel is entitled to hear everything that goes on

in the case


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a. if judge brought both attorneys into chambers and reprimanded the attorneyfor 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; cant comment on pending litigationvi. 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 substantivestandards for disqualification are the same under both sections)b. RIGHT TO JURY TRIAL

i. Seventh Amendment in suits atcommon 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 true80% of the time)

2. Common law writs:a. Trespassb. Debtc. Covenantd. Ejectmente. Trover & replevinf. Assumpsitg. Mandamus

3. Equity: (has some financial power so just because dollars will change hands doesntautomatically mean its an issue at common law)

a. Injunctionb. Cancellationc. Rescissiond. Accountings

4. Historical test to determine if suit is jury-demandable: whether a given claim laywithin the jurisdiction of the common law courts in 1791

5. Seventh Amendment right can be extended but not diminisheda. Congress can add new claims that are jury demandable, but cant shrink the

protections of the Constitution

6. Seventh Amendment does not apply to state courts, only federal (but most stateconstitutions have civil jury trial provisions)

ii. Chauffeurs v. Terry plaintiffs (workers) filed suit against union seeking compensatorydamages for back pay and benefits; court held that the case was jury demandable

1. Court first looks at whether this claim wouldve been historically brought in court oflaw 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 intoits pleading):a. Serving a demand to the other party, ANDb. 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 thejury (adversary can demand jury for the rest of the issues if it wants to)

3. Failure to demand a jury constitutes a waiveriv. 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 partys failure to demand it


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2. Court may try any issue with an advisory jury (even if the issue is not jury-demandable), or may order a regular jury trial with the consent of both parties

v. If legal and equitable claims and defenses are found in the same case1. 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 trialii. Jury trial goes first, before any hearing on equitable claims, and the

jurys findings control any common factual issues

b. Law ofthe Case Doctrine - type of res judicata; once an issue has beendecided in a case, it cant be reevaluated

i. Once a fact in litigation is determined, its determined for the entirelitigation; sometimes resolution of common law issue will impact on

resolution of the equity issue

ii. If jury trial goes first, then the jurys findings of fact are binding onissues in equity actions

c. Both sides in this case made claims that were jury-demandable; district courterred in not allowing jury trial

i. But if circuit court had found that case would not have surviveddirected verdict, then the jury is a moot point (it wasnt); appellate

courts dont reverse trial court decisions if it doesnt matter

vi. Choosing a Jury1. 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 anycourt 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 faircross section of the community, and that all citizens have the opportunity to beconsidered for a jury

4. 28 USC 1862 discrimination prohibited5. 28 USC 1865 qualifications for jury service6. 28 USC 1867 challenging compliance with jury selection procedures7. 28 USC 1870 right to 3 peremptory challenges8. Challenge for cause must present good reason to believe that the juror is bias, or on

any challenge of the jurors competency; form of a request (you dont get to remove

juror for cause, only judge gets to remove)

9. Peremptory challenge something a lawyer does; lawyers used to have total freedomregarding peremptory challenges (could strike juror for any reason or no reason at

all); Supreme Court beginning in mid-80s held that peremptory challenges could notbe 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 selectiona. Preliminary way for lawyer to present the case to the jury (via the questions

asked, tone of voice, etc.)


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b. Procedures vary enormously (ex. in Fed court, judge conducts the wholeprocess; in NY courts, lawyers practically put on their case)

11.Thompson v. Altheimer & Gray juror said her experience as a business owner maycloud 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 judges

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 45528 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 ofPleading

a) Claims for relief (complaint)b) Defenses; Form of Denial (answer)c) Affirmative Defensesd) Effect of Failure to Denye) Pleadings to be Concise

9 Pleading Special Matters (fraud)

10 Form of Pleadings

11 Signature; Representations to the Court; Sanctions

12 Defenses and Objectionsa) When Presentedb) How Presented (defense states in pleading except for pre-answer motions)c) Motion for Judgment on the Pleadingsd) Preliminary Hearingse) Motion for More Definite Statementf) Motion to Strikeg) Consolidation of Defenses in Motionh) Waiver or Preservation of Certain Defenses

13 Counterclaim and Cross-Claim

15 Amendments & Supplemental Pleadings16 Pretrial Conferences, Scheduling, Management17 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 Disclosures1. Initial Disclosures2. Expert Testimony3. Pretrial Disclosures

b) Discovery Scope and Limits1. General2. Limitations3. Trial Preparation: Materials4. Trial Preparation: Experts5. Claims of Privilege or Protection of Trial Preparation Materials

c) Protective Ordersd) Timing and Sequence of Discoverye) Supplementation of Disclosures and Responsesf) Conference of Partiesg) Signing of Disclosures, etc.

27 Deposition Before Action or Pending Appeal

28 Persons Before Whom Depositions May Be Taken29 Stipulations Regarding Discovery Procedure

30 Depositions Upon Oral Examination

31 Depositions Upon Written Questions32 Use of Depositions in Court Proceedings

33 Interrogatories to Parties

34 Production of Documents, Electronically Stored Info, Things and Entry Upon Land

35 Physical and Mental Examinations

36 Requests for Admission

37 Failure to Make Disclosures or Cooperate in Discovery; Sanctions

38 Jury Trial of Right

39 Trial by Jury or by the Court40 Assignment of Cases for Trial

41 Dismissal ofActions

a) Voluntary Dismissalb) Involuntary Dismissal

42 Consolidation; Separate Trials

45 Subpoena

47 Selection of Jurors

48 Number of Jurors Participation in Verdict

50 Judgment as Matter of Law in Jury Trials (Directed Verdict & JNOV)

54 Judgments; Costs

55 Default Judgment

56 Summary Judgment

57 Declaratory Judgments58 Entry of Judgment

59 New trials; Amendment of Judgments

60 Relief from Judgment or Order

61 Harmless Error

65 Injunctions preliminary injunctions and TROs