Civil Procedure I Outline - University of Chicagoblsa.uchicago.edu/first year/buss-civpro/civpro_i... · Web viewC. Federal Rules of Civil Procedure 1. Adopted in 1938, with an eye

Civil Procedure I OutlineProfessor Buss

Autumn Quarter 1998

I. An Introduction to Procedure: Service of ProcessA. Greene v. Lindsey (eviction notices posted on doors, not mailed or in person)

1. The SC said that KY statute permitting service of process via posting on an apartment door in forcible entry or detainer actions does not satisfy the Fourteenth Amendment’s Due Process Clause. (Posting alone is not enough.)2. Factors affecting the amount of process required:

a. Reliability (maybe mail is more reliable than posting in 20th century)b. Efficiency (don’t want to overburden court resources)c. Expense (want to be able to afford service for good claims)d. Stakes (eviction notices are more important than traffic tickets)

3. What is a reasonable cost?a. Let C=cost, P=Probability of error, I=magnitude of interest involved.b. Then, to decide if a new procedure is better than the current procedure,we determine if: C2 – C1 < (P1-P2)·Ic. Quantifying this could be hard, maybe the legislature should do it.

4. What’s the overall rule?1. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane 339 U.S. at 314, cited in Greene. 2. Who can serve? See Rule 4(c) and (e). Note that who and how can now be split (federally ok who with a state ok how), but why not just do it all the same way for safety’s sake?

i. Summons should be served with a copy of the complaint.ii. Anyone over the age of 18 who is not a party may serve.

3. How can process be served? See Rule 4(e)(1) and 4(e)(2).i. In accordance with state rules.ii. Or by handing a copy to in person, leaving copies at ’s home with an adult, or by delivering a copy to ’s authorized agent.

5. General considerationsa. This case is assigned to make us think about policy implications of various process rules, not to make us learn how to serve a summons or why we care about due process.b. Procedural posture is key in these cases (here, Lindsey was suing from a writ of summary judgement entered for ).c. Dates matter, since often a lot of time passes between a case and appeal.

B. Relevant Rules1. Rule 1: Scope and Purpose of RulesThe Federal Rules of Civil Procedure govern procedure in US district courts in all civil suits. They are to be administered in a speedy and inexpensive way.

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Civ Pro I, Autumn 1998

2. Rule 2: One Form of ActionThere is one form of action, known as civil action. This combines courts of law and equity into one court.

3. Rule 3: Commencement of ActionA civil action is commenced by filing a complaint with the court.4. Rule 4: Summons

a. Form - The summons must contain:i. Signature of a clerk, bear the seal of the court, identify the court and parties, be directed to , and state the name of ’s attorney.ii. Time within which must appear and defendiii. Consequences of a failure to do so.

b. Issuance: After filing the complaint the may present a summons to the clerk for signature. The summons is served to the if it is found to be in order.c. Service with Complaint:

i. Summons is served with a copy of the complaint.ii. Summons can be given by anyone not a party who is 18 or older. Alternatively a US marshal can give the summons, or other officer appointed by the court.

d. Waiver of Service; Duty to Save Costs of Service; Request to Waivei. A who waives a summons does not waive an objection to the venue or jurisdiction of the court.ii. No unnecessary costs. To save money a may notify a of the commencement of action so that the can waive service of summons.

a. Summons shall be in writingb. Shall be sent by first class mail or other reliable meansc. Shall be accompanied by a copy of the complaintd. Shall inform the of the consequences of compliancee. Shall set forth the date on which the request is sentf. Shall give the time to return the waiver, 30 days within the US and 60 days outside the USg. Shall provide the with an extra copy of the notice

iii. If fails to comply with the request the court shall impose subsequent costs incurred on the unless shows good cause for the failure.iv. After returns a waiver can wait to file an answer to the complaint for 60 days in the US and 90 days outside the US v. When files s waiver of service with the court, the action shall proceed as usualvi. Costs imposed on under paragraph 2 include attorney’s fees

(Note that the waiver streamlines the process, is less expensive, and encourages to work with a little. gets more time to answer if waives service.) e. Service Upon Individuals Within a Judicial District of the United States

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Unless otherwise provided service from a waiver may be effected in any US judicial district

i. Pursuant to the law of the state in which the court is locatedii. By delivering a copy of the summons and of the complaint to the individual personally, or by leaving copies at the individual’s dwelling.

C. “A Survey of the Civil Action” 1. Assigned as background reading, not for class discussion.2. Civil procedure = the rules courts use by courts to resolve disputes before them.3. The line between substantive law and procedure is rarely clear.4. How to sue someone:

a. Pick the right court (limited choice)b. Commence the action (serve the summons as above)c. Pleading (alleging the wrong done, some jurisdictions want legal theories only, others want theories and facts)d. Response (motion to dismiss, challenge venue, etc.)e. Discovery (depositions, interrogatories, orders to produce documents)f. Summary Judgement (no factual disputes, as a matter of law)g. Trial

i. Jury selectionii. Presentation of evidenceiii. Jury instructionsiv. Verdict (general, with interrogatories, special)v. Judgement (final determination of a case, unless there’s appeal)

a. If wins - takes nothingb. If wins - $, declaration of rights, injunction, recovery of property, usually just money changes handsc. Enforcement – if $, by writ of execution, if injunction, by holding in contempt if he does not comply

h. Post-trial motions (new trial, JNOV)i. Appeal (one as a matter of right, second appeal for limited grounds)

i. Affirm, reverse or modify lower courtii. Appeals lie from final judgements only

5. Remedies – not always enforceable, not always greater than the legal costs.

II. PleadingA. History of Pleading

1. Historical Purposesa. Give notice of the nature of the claimb. State the relevant factsc. Narrow the issuesd. Serve as guides to discovery and triale. Expose insubstantial claimsf. Separate legal and factual issuesg. Today, only the first and second (to some extent) of these are relevant

2. Courts of Law (royal court, power comes from the king)

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a. Good at defining the dispute very specificallyb. Bad at:

i. Gathering (accurate) factual informationii. Only two parties at a time, can’t sue more than one personiii. No subpoena powers to compel witness testimonyiv. Monetary relief only, no injunctive relief

c. Service was done via attachment (i.e. the sheriff grabbed the guy)d. Pleading was very formal, structured, occasionally at expense of facts

i. Desire to get the case into royal courts (disturbance of the peace)ii. Designed to narrow the case to one question:

a. Question of fact => Jury or other fact-finder decidesi. Oath helpersii. Trial by battleiii. Trial by ordeal

b. Question of law => Judge decidese. Types of responses to pleadings

i. Dilatory pleas (responses delaying suit, didn’t address the merits)a. Jurisdictional challenges (“Not here – wrong court.”)b. Pleas in suspension (“Not now – wait.”)c. Pleas in abatement (“Not like this – defective pleading.”)

ii. Peremptory pleas (forced a choice on merits between law/facts)a. Demurrer (“So what? It’s not illegal.”)b. Traverse (“Not true facts.”)c. Confession and avoidance (“Yes, but it was ok.”)

f. Types of acceptable writsi. Trespass (several subcategories)ii. Debt (recover sums owed)iii. Covenant (breach of written, sealed contract)iv. Ejectment (recover unlawfully occupied land)v. Trover and replevlin (unlawful takings of personal property)vi. Assumpsit (breach of informal, oral contracts – “he promised”)

3. Courts of Equity (a.k.a. Chancery, also a royal court with power from the king)a. Good at:

i. Gathering information ii. Suing multiple partiesiii. Remedies included specific performance decrees, injunctions iv. Ruled on contract cases involving fraud, mortgages

b. Bad because attempts to find a complete solution often led to long trials with uncertain results.c. Job was to deal with cases not adequately handled by regular courts

4. Differences between the two systemsa. Chancellors sat without juriesb. Pleadings were enormously detailed in Chanceryc. Written depositions (Chancery), not live witness testimony (law)d. Testimony was done under oath in Chancery e. Had subpoena power to compel testimony (Chancery)

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5. Both types of pleadings had to include jurisdictional allegationsB. Code Pleading

1. By the 19th century, pleading became incredibly complicated and confusing2. States adopted the Field Code, rules of pleading designed by David Field.

a. Simplified pleadingi. State “dry, naked facts” instead of fitting facts to a writii. One cause of action, no need for various forms of actioniii. Regardless, the facts must match with a substantive legal claim.

b. Merged law and equity into one systemc. Reforms did lead to some problems

i. Substantive law didn’t change when pleading did, so if alleged the elements of a fraud claim, it was treated only as fraud, even if proved breach of contract.ii. What’s a fact and what’s a conclusion?

d. How could a code pleading fail?i. Fail to allege facts or conclusions necessary to meet the elements of the claim.ii. Allege conclusions, but fail to allege facts. (Rannels trial court)iii. Full factual allegations, but doesn’t meet elements of a claim because the facts don’t match. (Yeazell’s take on Rannels, given the trial court’s interpretation of the bad check law.)

e. Amendment is usually allowed for errors of types i. and ii. A defect of type iii. usually results in dismissal. e. Many states (e.g. CA, IL) still use code pleading.f. Gillispie v. Goodyear Service Stores (code pleading case)

i. The trial court held that ’s complaint did not contain sufficient facts to constitute a cause of action. The court upheld the lower court’s sustaining of defendants’ demurrers.ii. Proof that it is not enough to allege conclusions. Facts are required to:

a. Allow judge to assess if there’s a sufficient legal claimb. Allow to identify what the dispute is about.

iii. Defect was of type (ii), amendment was permitted by the court.C. Federal Rules of Civil Procedure

1. Adopted in 1938, with an eye to fixing some problems of the Field Code.2. Combines features of both common law and equity pleading.3. Pleading is no longer the hinge of procedure, it’s a gatekeeper.4. The SC has set a broad standard as to what counts as a good pleading. (See Note 2 on page 404, Conley v. Gibson.) 5. Rule 8: General Rules of Pleading (10/14)

a. Claims for Relief – a pleading that lays out a claim for relief needs: i. A statement on the grounds of the court’s jurisdiction,ii. A statement of the claim entitling the pleader to relief,iii. A demand for judgement.

e. Pleading to be Concise and Direct; Consistencyi. Each pleading shall be simple, concise and direct.

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ii. A party may set forth two or more statements of claim or defense. The insufficiency of one claim does not necessarily lead to the insufficiency of the other(s).

f. Construction of Pleadings – All pleadings will be constructed to do substantial justice.

D. 12(b)(6) challenges, or “How many facts are enough?”1. Duncan v. AT&T (racial discrimination)

a. Court held that there just weren’t enough facts. ( doesn’t mention her race, for example.)b. Baldly conclusive language is too much – problem of type (i). c. The court does not deny amendment, but says that it would be futile.

2. Rannels v. Nichols, Inc. ($2 defective jeans)a. Plenty of facts were alleged, but the appellate court was checking on the legal sufficiency of the claim. b. The district court saw a problem was of type (ii), alleging conclusions, not facts.c. The appellate court said the district court was too picky, asking for too many details. The real problem was of type (iii), a question of law.

3. Rule 12: Defenses and Objections-When and How Presented (10/15)b. How presented- every defense shall be asserted in the responsive pleading if required, except the following, which may be made by motion

i. Lack of jurisdiction over subject matterii. Lack of jurisdiction over personiii. Improper venueiv. Insufficiency of processv. Insufficiency of service of processvi. Failure to state a claim upon which relief can be granted (Can be

treated as SJ and disposed of according to Rule 56) vii. Failure to join a party under rule 19.

These are to be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with other defenses or objections.e. Motion for a more definite statement- this may be invoked when a response is required and initial pleading is too vague so that party cannot be reasonably expected to respond- there are 10 days to amend complaint before it is strickenf. Motion to strike- w/in 20 days after pleading court may order stricken from pleading insufficient defenses, or other immaterial matters

E. Rule 11 Challenges1. Any signed filings are subject to Rule 11 challenges, not just pleadings.

a. Sanctions are discretionary, not mandatory.b. Courts prefer to use non-monetary sanctions like censure, admissions, referral for disciplinary action, suppression of improper evidence.

2. Business Guides v. Chromatic Communications Enterprises (phone book seeds)a. The court found a Rule 11 violation, holding that frivolously presented facts are subject to penalties. The first mistake was the company’s

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(lawyers asked for TRO in good faith), but lawyers filed an amended report without even investigating. b. The case was dismissed with prejudice (death sentence) because the lack of research was such a grave error.

3. Gerbode v. RTC (crazed anti-church litigation)a. (Gerbode) sought attorney’s fees from (RTC) under Rule 11.

i. This all started when sued (Church of the New Civilization, Gerbode) for RICO violations. That case was dismissedii. Problem – Rule 11 became effective the day the underlying case was dismissed.iii. Problem - say that case should not be considered because it violated the safe harbor provision (see below). This is irrelevant, because the purpose of that provision is moot (case dismissed).

b. Safe harbor provisioni. A party wishing to file a Rule 11 claim must first give notice to the other party as to why the motion in question offends.ii. After 21 days of service of the offending motion, if it has not been amended or withdrawn, the party may file the Rule 11 claim.iii. This doesn’t help much, though, since they must respond to claims within 20 days (unless offered to waive service and has accepted, giving 60 days to answer).

4. Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to the Court, Sanctions (10/19)

a. All official documents need attorney’s signature (if none, then party’s), address and phone # of signer.b. By presenting documents to the court, party or attorney is certifying:

i. The purpose is proper, ii. Claims are warranted by existing law or by possible reversal or modification of old one, or new law. iii. Allegations have evidentiary support or are likely to have such support after further investigation or discovery. iv. Denials are warranted on the evidence, or reasonably based on a lack of information or belief

c. Sanctions- if court finds b violations after notice and reasonable opportunity to respond, court may impose sanctions on party responsible.

i. Initiated by motion- separate from others, in conjunction w/ Rule 5, and has to be after 21 day “grace” period. Attorney’s fees when warranted to the prevailing party.

ii. Initiated by court- order to show cause if apparent violation of b. iii. Limitations- should be only to deter repetition of conduct of

similarly situated persons. No monetary penalties until party is given a chance to remedy alleged violation. Court has to explain violation to parties.

d. None of this applies to disclosures and discovery requests, responses or objections, and motions that are subject to Rule 26 through 37.

F. Particularized Pleadings

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1. In some circumstances, pleadings must meet a heightened standard. 2. Leatherman v. Tarrant C’nty Narcotics Unit (see page 434)

a. Here, the SC held that courts could not require more specific pleading in civil rights cases.b. This holds even in cases when individuals in government wish to invoke a qualified immunity defense to claims of civil rights violations.c. Qualified immunity is the right of individual government workers “not to stand trial” in cases of alleged civil rights violations if the actions were taken under a reasonable misapprehension of the law.

3. Schultea v. Wood (police chief gets fired for investigating city council)a. The Fifth Circuit announced a two-tiered system of pleading for cases where a government official might invoke a qualified immunity defense.

i. The first pleading could be general, meeting the Rule 8 standard, but it has to have more than just conclusions. ii. If the response alleges “QI,” then the court may require to amend and reply. iii. The amendment must plead more than conclusions, and have enough facts to sustain a motion to dismiss under Rule 12(b)6, tailored to engage the QI affirmative defense.

b. There is a thin, but apparently constitutionally acceptable line between Leatherman and Schultea.

G. Burden of Pleading1. Generally, bears the burden of proving elements of the pleading.

a. In close cases (50/50), loses.b. The burden of proof often follows the burden of pleading.

2. Gomez v. Toledo (Puerto Rican police officer)a. is not required to allege bad faith in a pleading bringing suit against a public official who might invoke a qualified immunity defense. b. “ would have better information, make plead it” does not normally hold. However, only would know if she or he acted in bad faith or not (part of the QI defense is acting under a misapprehension of the law), so it makes sense to allocate the burden of pleading elements of a QI defense..

H. Answers1. Pre-answer motion (7 claims can be brought in this kind of motion)

a. 4 must be brought right away (in pre-answer motion, if there is one, or in the answer itself), or are waived forever

i. Lack of personal jurisdictionii. Improper processiii. Improper service of processiv. Improper venue

b. 3 can be brought at anytime, since they are very importanti. Failure to state a claim upon which relief can be grantedii. Failure to join a party under Rule 19iii. Lack of jurisdiction over the subject matter

2. Answer itself

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a. If there is no pre-answer motion, the four claims listed above must be mentioned or they are waived forever.b. must respond to the allegations with the same degree of specificity as in the pleading. (Unless issuing a general denial, see below.)

3. What kind of denials? a. General denial – only if the entire claim is falseb. Specifically admit/deny each elementc. Affirmative defenses (many must be raised here, or are waived)d. Counter-claim (in which case anything can do you , can do to )

3. Zielinski v. Philadelphia Piers Inc. (forklift on the docks)a. The complaint alleged that PPI both owned and operated the forklift.

i. responded with a general denial of negligence.ii. After the statute of limitations expires, finds out that does not own (it sold the business to CCI), it merely operates.iii. The court permits a counter-factual jury instruction saying that PPI did own the forklift. Why? Turns out that the same insurance company represented both CCI and PPI. Since that company had a mutual interest, and was the “real party,” it’s possible there was deliberate deception here. iv. This proves why you should state claims carefully, denials can be very misleading.

b. Why didn’t Zielinski just name the right under 15(c)(3)?i. It is possible to do so under the 1956 amendments to the rules.ii. The case was tried in 1956, it happened before the amendment.

4. Layman v. Southwestern Bell Telephone Company (unauthorized trench) a. SBTC responds with a general denial, not mentioning the affirmative defense of an easement. b. The appellate court finds that the trial court’s admission of this evidence is a mistake, since it should have been in the answer under “any other matter constituting an avoidance or affirmative defense.”c. How do you know if something is an AD or a denial of facts? The SC says that if you need to bring in new facts, not just contest ’s facts, it is an AD and must be plead. Failure to raise an AD means remand.

5. Rule 8: General Rules of Pleading (10/21)b. Defenses- Form of Denials

i. Statement in short and plain terms of the defense to each claim. ii. Must admit and deny where appropriate. iii. Party must state if they don’t have enough info to respond. iv. Denials and admissions should be specific to the claim. v. General denials to be subject to obligations of Rule 11

c. Affirmative Defenses- In pleading to a preceding pleading, party shall set forth any affirmative defense. When a party mistakes a defense for a counterclaim the court, if justice requires, shall treat the pleading as if there had been a proper designation.d. Effect of Failure to Deny- Averments to which a responsive pleading is required, other than those as to amount of damages, are assumed admitted

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when not denied in the responsive pleading. Averments where no responsive pleading is required are taken as denied or avoided.

5. Rule 12: Defenses and Objections-When and How Presented (10/21)a. When Presented

i. Unless statute says otherwise, defendant answers within: a. 20 days after being served, b. 60 or 90 if service was waived or if residing outside US.

ii. Party served with a cross-claim shall answer within 20 days after being served, same for a counterclaim or court-ordered reply. iii. US (or officer, agency) has 60 days unless otherwise stipulated.

c. Motion for judgment on the pleadings: any party may ask for this as long as it does not delay trial. If matters outside the pleadings are introduced, motion treated as SJ [like 12(b)(6)]d. Preliminary Hearings- defenses in b) and motion for judgment on the pleadings shall be heard before trial, unless court orders otherwiseg. Consolidation of defenses in motion- a party may join any other motions with this one, but must include available objections or defenses, these are not to be raised later.h. Waiver or preservations of defenses- 12b(2,3,4,5) defenses are waived if omitted from motion (g) or if not included in (h) or responsive pleading or amendment permitted under 15a. 12b(6,7) may be permitted or ordered under 7a, or by 12c, or trial on the merits. Court shall dismiss action when it appears that 12b1 is violated.

I. Amendment1. Essentially a three-tiered system

a. Once as a matter of course:i. For , before the answer is filed (Rule 15a)ii. For , up to 20 days after the answer

b. Courts may freely authorize amendment when in the interests of justice, or the adversary can consent.c. When the statute of limitations has run, relation back (Rule 15c)

2. Beeck v. Aquaslide ‘N’ Dive Corp. (waterslide injures meat plant worker)a. The court holds that can amend pleading to deny that their product caused ’s injuries, asking for a new trial on just the issue of whether the slide was an Aquaslide. This happens after the statute of limitations has run on the claim. says that this will unjustly prejudice their case.b. Why allow amendment?

i. No bad faith on the part of .ii. Not “prejudicial” per se – maybe can file against the real manufacturer under a claim that fraud prevented filing before the statute of limitations ran.iii. Practical considerations – how would defend itself against a charge that someone else’s slide was faulty? Defend their manufacturing processes, or the counterfeiter’s?

c. Level of Reviewi. Decision to allow amendment was made by the trial court.

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ii. The appellate court only had authority to say if trial court acted within its discretion or not.

3. Rule 15: Amended and Supplemental Pleadings (10/22)a. Amendments- allowed before responsive pleading is served, if no responsive pleading, then 20 days. Otherwise, may only amend by leave of court or written consent of adverse party. Response to amendment is within initial time or 10 days whichever is longer. b. Amendments to conform to the evidence- pleadings may be amended to conform to the evidence upon motion to party at any time, but failure to do so does not affect result of trial of these issues. If evidence is objected to as outside the pleadings, pleadings may be amended to fit evidence when merits of action are subserved and one party isn’t overly prejudiced.c. Relation back of Amendments- relates back when:

i. Permitted by applicable Statute of Limitations, ii. Claim or defense asserted arose out of conduct, transaction, or occurrence set forth in the original pleading, iii. Amendment changes the party or naming of party against whom a claim is asserted if preceding is satisfied,

a. Within time period of 4m, and b. Party to be brought in a- has received such notice of action and party will not be prejudiced in maintaining a defense on the merits, knew or should have known that, but for a mistake concerning identity of proper party, action would have been brought against the party.

d. Supplemental pleadings- occurrences or transactions taking place since the original pleading may be set forth in this type of pleading if reasonable notice and just cause exist.e. Notes on Rule 11

i. Pre-1983: There was a subjective standard. The lawyer had to stay that he thought the motion was reasonable and sufficient. Sanctions included dismissing the offending document; if the error was willful, professional discipline. ii. 1983 Amendment: Made the imposition of sanctions mandatory, there was an explosion of Rule 11 motions. Sanctions included lawyer’s fees, which gave an incentive to file Rule 11 motions. Had a chilling effect on with meritorious cases they weren’t sure could be proven.iii. Current (1993): Sanctions are optional, they are usually in the form of money awarded to the court, not the lawyers.

J. Relation Back1. Applies when the statute of limitations has run on a claim, under 15(c).2. Why have a statute of limitations?

a. Reduce frivolous litigationb. Right to repose – shouldn’t worry constantly about future litigationc. sues only if truly meaningful to do it now, not while in retirement

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d. Eliminate possibility of suing again and again on many claims arising out of the same events until wins.e. Efficiency – witnesses die, move, forget; records get destroyed, etc.f. Puzzle – why have a relation back option for , since statutes of limitations only apply to complaints?

3. Prejudicial effect prevents relation backa. “Prejudice” means making the party worse off now than it would have been had it known about the new consideration at the time of the original pleading. This does NOT mean, “makes the other side’s case worse,” since that’s the whole point of amending in the first place. This goes more to a sense of fairness. b. Don’t be confused for prejudice with relation back and amendment.

3. Moore v. Baker (heart surgery gone wrong)a. The court held that the district court did not abuse its discretion in denying Moore’s motion to amend her complaint (no relation back). Since the amended complaint could not withstand a motion to dismiss (statue of limitations had run), the court was within its discretion to dismiss.b. Going from a specific, exotic claim to a general one is not fair. had the right to assume that the typical malpractice claim was off the table. would need new facts to prove her new case.

4. Bonerb v. Richard J. Caron Foundation (rehab basketball game gone wrong) a. The court permits relation back in this case, allowing to allege that participation in a mandatory exercise program without proper instruction was counseling malpractice, not just typical slip and fall negligence.b. Going from a general, typical claim of negligence to a specific, exotic claim of “counseling malpractice” is ok. The facts in the original claim covered the new theory.

III. DiscoveryA. Scope

1. This is an incredibly broad process. a. It gives parties who survive the pleading stage wide-reaching access to their adversary’s information. The more specific the pleadings were, the better idea the parties will have about what to look for in discovery. b. Conducted by the parties, not the court (unless there are problems).

i. In the event of problems, the court has power to enforce production of evidence.ii. Otherwise, the court just sets a schedule for discovery.

c. Three kinds of discovery problemsi. Too little discovery (stonewalling)

a. A party refuses or resists appropriate discovery requests.b. Addressed by Rule 26(g) and 37.

ii. Too much discovery (fishing expedition)a. A party seeks more information that the case justifies to discourage or hamper the adversary.b. Addressed by Rule 26(c) and 16.

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iii. Mismatched discoverya. The parties have significantly unequal wealth, hence one is able to fund more motions and hire better lawyers. b. The system deals less well with this problem. Buss suggests using the local library and FOA.

iv. Concerns about abuse include:a. Fear parties might settle just to get out of discovery (too costly, to much detailed information made public)b. Remedies include limiting number of interrogatories.

d. The goal is that sharing of information will lead to:i. True, just results, ii. Settlement as parties get a better notion of the relative strengths of their cases.iii. Remember that discovery need not be a formal process. If a witness is willing to talk without a subpoena, that’s fine.

e. Any relevant evidence that is not privileged is discoverable.i. Relevant means evidence that might lead to material admissible at trial, it need not be itself admissible.ii. Privileged refers to the confidentiality, work product, trial preparation and mental impression exemptions.

2. Unassigned casesa. Blank v. Sullivan & Cromwell (law firm not hiring females)

i. Illustrates relevance, showing that information need not be specific to the matter at hand to qualify for discovery, evidence going to a pattern is discoverable.ii. Here, women sued for not being hired as associates at a firm. They wanted information about how many women were made partners. The firm said it wasn’t relevant, the women said it established a general culture of prejudice.

b. Steffan v. Cheney (gay student at U.S. Naval Academy) i. Steffan’s lawsuit against the USNA was dismissed because he refused to answer interrogatories, claiming they were not relevant. ii. The court of appeals found that while trial courts have wide Rule 37 discretion to sanction parties who interfere with discovery, the sanction cannot be upheld if it was based on an error of law.

3. Rule 26: General Provisions Governing Discovery; Duty of Disclosurea. Required disclosures, methods to discover additional matter:

i. Initial disclosures- a party must automatically provide info about: a. People likely to have relevant discoverable info, b. All tangible things in custody of party that are relevant to disputed facts, c. Computation of any category of damages claimed by discovering party, including basis for calculations, d. Any insurance agreement under which agency may be liable to satisfy part or all of a judgment.

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These are to made within 10 days after the meeting of the parties under(f). Party not excused from making its disclosures because it hasn’t completed its investigation, or because it challenges the sufficiency of other party’s disclosures. ii. Expert testimony-

a. Identity must be disclosed, b. Written report by expert to be submitted,c. Shall be submitted at least 90 days before trial- if testimony is only to rebut particular evidence by opposition then within 30 days of that opposing testimony.

iii. Pretrial disclosures (at least 30 days before trial) – a. Contact info for witnesses testifying, b. Contact info for witnesses providing depositions, c. Identification of each document or exhibit.

iv. All of the above to be filed in writing, signed, served, and promptly filed with the court. v. Methods – parties may obtain addition matter through

a. Depositions (oral or written), b. Interrogatories, c. Production of documents or things, d. Or permission to enter upon land for inspection, e. Physical and mental exams, f. Requests for admission.

b. Discovery Scope and Limits i. General- all material is discoverable except for that which is privileged, only needs to be reasonably calculated to lead to evidence or discovery of admissible evidence. ii. Limitations- court may alter # and length of depositions and requests or any other discovery method if court determines

a. Discovery would be unreasonably cumulative or duplicative or there are other less burdensome means. b. Party seeking discovery has had ample opportunity to obtain information sought.

B. Discovery Tools1. Interrogatories (Rule 33)

a. Good things:i. Cheap,ii. Used early in litigation to sort out what the issues are,iii. Objections can be stated, and parties need not answer,iv. Can be quite detailed.

b. Bad things:i. Applies to parties only,ii. Limited to 25 questions per party,iii. Less effective,iv. No follow-up questions.

2. Requests for Admissions (Rule 36, applies to matters within Rule 26(b)(1))

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a. Good things:i. Parties must admit or deny specific facts,ii. Once admitted, the issue is no longer contestable.

b. Bad things:i. Admissions cannot be changed,ii. Usually used for peripheral matters, like authentication of documents, making the trial run smoothly.

3. Physical and Mental Examinations (Rule 35)a. Good things:

i. Get a detailed written report,ii. Proves things like blood type conclusively.

b. Bad things:i. Applies only to parties,ii. Obtainable only through a court order for good cause.

4. Production of Documents and other Tangible Things (Rule 34)a. Good things:

i. For parties only,ii. Cheap to make the request,iii. Harder for other side to meet request, costs them money.

b. Bad things:i. Offers a lot of potential for abuse,ii. Don’t want to give the other side carte blanche in the file room.

5. Depositions (Rule 30)a. Good things:

i. Very useful and detailed,ii. Find out how a witness will act on the stand,iii. Opportunity for follow-up questionsiv. Not limited to parties,v. Subpoena power, and can demand documents be brought to the deposition (subpoena duces tecum, “bring with you”),vi. Objections can be noted, but the deponent must answer anyway,vii. Can be used in place of testimony if the witness cannot appear at trial (dead, infirm, etc.)

b. Bad things:i. Expensiveii. Usually not introduced at trial (but can be used to impeach witness testimony), must question witnesses again.

C. Special Information1. Privilege and Trial Preparation Material

a. Hickman v. Taylor (lawyer goes to jail protecting tugboat)i. The SC held that to the extent that a party can only obtain information from the written notes of a lawyer, or that the lawyer is privy to knowledge only he has, P can obtain the documents. However, the mental thoughts, defense strategies, etc. that only the lawyer knows remain privileged. “Work product is protected.”

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ii. Lawyer/client privilege is very important, and only gets breached when absolutely necessary. iii. Note that 26(b)(3) was not in effect at the time of this case, it prompted that particular amendment.iv. could have obtained information by other means, and should have tried to do so.

b. Rule 26: General Discovery Provisions; Duty of Disclosurei. [26b3] Subject to b(4), a party may obtain discovery of documents and tangible things otherwise discoverable under b(1) of this rule and prepared in anticipation of trial, but only upon showing a substantial need for the materials, and that no undue hardship will result from efforts to obtain. Privileged material (mental impressions, conclusions, opinions or legal theories of the lawyers) is guarded from discovery.ii. [26b5] When a party withholds information otherwise discoverable by claiming that it is privileged, the party has to make the claim expressly, describing the nature of the things not produced or disclosed. This will be done in a manner that will enable other parties to assess the nature of the privilege.

c. Discovery Decision Tree i. Is it a document or tangible thing?

a. No – not discoverable, stop.b. Yes – proceed.

ii. Otherwise discoverable? (i.e. is it relevant and not privileged?)a. No – not discoverable, stop (the info is either irrelevant or is privileged).b. Yes – continue.

iii. Prepared in anticipation of litigation?a. No – Discoverable.b. Yes – Continue

iv. Substantial need (undue hardship/substantial equivalent)? [the necessity test]

a. No – Not discoverableb. Yes – continue

v. Mental impressions, legal theories, etc.a. If there are none, whole thing is discoverableb. Some – discovery minus any material pertaining to mental impressions (D-MI), the court reviews and redacts the information, releasing a product that isn’t “work product of the attorney.”

This does NOT mean that lawyers or parties can never be required to reveal information about legal theories or mental impressions. With a motion to dismiss, you’ll need to answer and make a legal argument that you are eligible for relief. (i.e. you’re revealing your basic legal theory.)

2. Expert Information

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a. Thompson v. The Haskell Co. (sexual harassment)i. The court found that was entitled to psychiatrist’s notes from treating because this was a case of exceptional hardship. There was no other way for to find out what an expert thought of ’s emotional state shortly after the incident. ii. The court classifies the notes Rule 26(b)4, the report of an expert, not as trial preparation material. could get it if this was done in anticipation of the trial, but the exam happened 10 days after the incident; the trial happened 2 years later. Even though it wasn’t “trial preparation,” it was the only contemporary evidence.

b. Chiquita International Ltd. v. M/V Bolero Reefer (bananas)i. Chiquita sues International Reefer Services for failing to transport 43,000 boxes of bananas. IRS wants to depose Winer (a marine surveyor who inspected the boat at Chiquita’s request) and obtain a copy of the file he has created on the case. Chiquita claims that Winer is an expert witness whose report is protected by 26(b)(4)[B]. IRS says that his evidence goes to facts, not expert opinion, and that he was the only person who observed the boat after it docked makes his information a unique circumstance. ii. The court decided that Winer could not be deposed, but that the portion of his file which contained discoverable information (not his opinions) must be disclosed. iii. IRS did have an opportunity to send their own inspector, but they failed to do so. Thus, since Winer was a non-testifying expert, he cannot be deposed due to the “extreme circumstances” exception. But since information does not become exempt from discovery merely because it is conveyed to a non-testifying expert, the portion of his file that wasn’t opinion had to be handed over.

c. Problems posed by expert testimonyi. Relevant, unprivileged information will be produced by one side; we don’t want the one side to “freeload” on the efforts of the other.ii. Cross-examining an expert without a prior deposition and access to his or her report beforehand is a difficult task.

d. Rule 26: General Discovery Provisions; Duty of Disclosurei. [26b4] Trial preparation: Experts -

a. A party can depose person identified as expert whose opinions may be presented at trial. If report under a2B is required, deposition not conducted until report is provided.b. A party may, through interrogatories or deposition, discover facts or opinions from expert retained in anticipation of litigation who is not going to testify at trial (provided in rule 35(b) or through hardship of discovery)c. Unless unjust, party seeking discovery pays expert reasonable fee for time.

ii. [26c] Protective orders - Upon motion and certification that there was a good faith attempt at resolution, and good cause, the

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court in district where deposition is taken may make an order to protect party from “annoyance, embarrassment, oppression, or undue burden or expense.” Orders may take following forms:

a. Disclosure or discovery is disallowedb. Disclosure or discovery only allowed on specified conditions (designation of time and place)c. Discovery only allowed in form other than that chosen by party seeking discoveryd. Certain matters prohibited from discussion or discovery limited to certain matterse. Discovery conducted with only court designated individuals presentf. Deposition, after being sealed, only opened upon order by the courtg. Trade secret or other confidential information not revealed or only revealed in a certain wayh. Parties simultaneously file documents enclosed in sealed envelopes to be opened as the court directs

If motion for protective order is denied, court may order that any party provide/permit discovery. Rule 37(a)(4) applies to award of expenses related to motion.iii. [26g] Signing of Disclosures, Discovery requests, Responses, and Objections

a. Disclosure made under (a)(1) or (a)(3) shall be signed by at least one attorney in his individual name, with address provided. Unrepresented party shall sign himself/herself and provide address. This signature of attorney or party is certification that to “the best of signer’s knowledge, information, and belief, formed after a reasonable inquiry” the disclosure is complete and correct at time it is made. b. Every disclosure request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney in individual name, with address provided. Unrepresented party shall sign request, response or objection and provide address. Signature acts as certification that “to the best of signer’s knowledge, information, and belief, formed after a reasonable inquiry” request, response, or objection is

i. Consistent with these rules and is warranted by law or is a good faith argument for modification (reversal, extension) of lawii. Not used for improper purpose-harass, delay or increased cost of litigationiii. Not unreasonable or unduly burdensome or expensive given elements of case

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If request, response, or objection is not signed it shall be stricken unless signed promptly after omission is brought to attention of party making response etc. Party not obligated to act until the response, request or objection is signedc. If certification made in violation and without justification, court shall impose sanction on party on whose behalf response, request, or objection is made. This sanction may include order to pay expenses from violation, including attorney’s fees.

C. Discovery Abuses1. Phillips v. Manufacturers Trust (firing for age and race)

i. We didn’t actually read the case; we read a transcript of the deposition.ii. lawyer reads like a jerk, but she was technically doing a good job of protecting her client.iii. The court might decide to impose sanctions for such behavior, but they would be targeted at getting useful testimony.

2. Rule 37: Failure to Make Disclosure or Cooperate in Discovery: Sanctionsa. Party, upon notice to other persons and affected parties, may apply for an order compelling disclosure or discovery as follows:

i. Appropriate Court - Application for order to party shall be made to court where action is pending. Application for non-party person made to court in district where discovery is taken or being taken.ii. Motion -

a. If party fails to make disclosure required by rule 26(a), any other party may move to compel disclosure and sanctions. Certification that good faith effort made to confer with party not making disclosure to avoid court action must be shown.b. If deponent fails to answer question submitted under Rules 30 and 31, or corporation fails to make designation under 30(b)(6) or 31(a), or party fails to answer interrogatory submitted under Rule 33, or if party, in response to inspection request under Rule 34, fails to respond with permission, discovering party may move for compelled answer, designation, or order compelling inspection. Certification of good faith effort for conference to avoid court action must be shown. When taking deposition on oral examination, proponent of question may adjourn or complete examination before order application.

iii. Evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.iv. Expenses and sanctions -

a. If motion granted or disclosure or discovery provided after filing of motion, court shall require party whose conduct made motion necessary (or attorney or both) to pay expenses brought by motion unless good faith effort made

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to obtain discovery/disclosure, or nondisclosure was justified, or expenses are unjust for other reasons.b. If motion denied, protective order under 26(c) can be imposed, requiring moving party and attorney or both to pay expenses from opposing motion unless motion justified or other circumstances makes expenses unfair.c. If motion both granted and denied in part, protective order under 26(c) can be made, and court can apportion expenses brought by motion among parties.

b. Failure to comply with orderi. If deponent fails to swear or answer, this may be contempt.ii. If party or person designated under Rule 30(b)(6) or 31(a) fails to obey an order providing discovery, or if party fails to obey order under Rule 26(f), the court may make the following orders:

a. Facts taken in accordance with claim of party seeking orderb. Refusal to allow non-providing party to oppose claims or introduce certain matters into evidencec. Striking of pleadings, staying proceedings until cooperation is had, dismissing action, or rendering default judgment against disobedient partyd. Failure to obey orders except order to submit to mental/physical exam is contempte. Party fails to comply with 35(a), orders under a, b, c above unless party shows unable to produce person

Court can require disobedient party and attorney or both to pay expenses (including lawyer fees) caused by failure unless found justified or other circumstances make expenses unjust.c. Failure to disclose; false or misleading disclosure; refusal to admit -

i. Party without justification who fails to disclose information is not permitted to introduce evidence. Court may also impose other sanctions. These sanctions may include any under a, b, c of b(2) of this rule, including payment of fees (including attorney). Also may include telling jury of failure to disclose.ii. If party fails to admit genuineness of document under Rule 36, and other party proves it, requesting party may apply for order requiring opposing party to pay expenses, including attorney’s fees. Court will make order unless (A) request is objectionable under 36(a), (B) admission not important, (C) party failing to admit had reason to think other party would prevail on issue, (D) good reason for failure to admit

d. If party or person designated under 30(b)(6) or 31(a) to testify fails i. To appear at deposition, ii. To answer, iii. Serve written response to request for inspection,

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the court may make orders in regard to failure. May make any action under a, b, c of b(2) of this rule. Failure under ii or iii here shall include certification that good faith effort made to confer. Fees may also be imposed (including attorney fees) unless failure is justified or circumstances make expenses unjust. Failure not excused on grounds that discovery is objectionable unless party failing to act has protective order.

e. Abrogatedf. Repealed in 1980g. If party or party’s attorney fails in good faith cooperation in development of plan (required under 26(f)), court may impose fees (including attorney).

IV. Disposition Outside of TrialA. Settlement

1. Characteristicsa. Why settle?

i. Cheaper and faster than trialsii. Realize the relative merits of each party’s case (cases which are skewed one way or the other are far more likely to settle)iii. Can impose confidentialityiv. Get out of discovery

b. Why not settle?i. Vindication of being rightii. Don’t want to capitulate to expediencyiii. Might get bigger settlement the longer you waitiv. Want justicev. Want the public to know about the other party’s misdeeds

c. What kind of game is this?i. Zero-sum

a. Lawyer’s role is to competeb. Each point won by a given side is lost by the other

ii. Open to creative solutionsa. Lawyer’s role is to get a better resolution than at trialb. Problem-solving exercise

d. Judge’s Rolei. Usually very limited.

a. Bench trials – rarely do judges get involved in settlingb. Jury trials – judges are more likely to intervene

ii. Settlements must have approval when minors or class action lawsuits are involved (these parties can’t be a full part of the settlement process).iii. Settlements are contracts, enforceable in court (usually state courts, unless there’s diversity jurisdiction)iv. Why not have judges review all settlements?

a. Waste court resources. (Why not have a full trial?)

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b. People are free to make bad contracts in the rest of their lives (pay too much rent, sell car for too little money).

e. Axes of settlementi. Monetary – how much do you get?

a. Calculation can be complexb. Less fees

ii. Procedural – will the case be dismissed, never filed, dismissed with prejudice?

f. Rule 41: Dismissal of Actions[a] Voluntary Dismissal: Effect Thereof

[i]. Action may be dismissed by plaintiff without court order by:

i. Filing dismissal notice any time before service of answer by adverse party or motion for summary judgment, whichever comes first ii. Filing dismissal signed by all parties in action. Dismissal is without prejudice, except notice of dismissal is adjudication on merits when filed by plaintiff who has already dismissed on that claim.

[ii]. Action not dismissed at plaintiff’s instance except on order of court as deemed proper. If counterclaim brought before service on defendant for motion to dismiss, action will not be dismissed against defendant’s objection unless counterclaim can remain pending. Dismissal here is without prejudice.

2. Typesa. Contracting to dismiss

i. Simplest form of a settlement (sometimes called a release).ii. agrees to drop lawsuit (or not bring it at all), usually gets money in return.iii. Ordinarily, the judge need not examine such settlements.iv. In class action lawsuits, the judge must approve (Rule 23e).

b. Contracting for confidentialityi. Kalinauskas v. Wong (Caesars Palace sexual harassment)

a. sued for sexual discrimination. wanted to depose Thomas, a woman who sued for sexual discrimination in the past. Thomas had settled against , under an agreement of confidentiality.b. The court ruled that could depose Thomas, and that Thomas would not be punished for violating the confidentiality argument. This was because:

i. Preventing the deposition of Thomas would condone buying the silence of a witness. ii. Deposition of Thomas was likely to lead to relevant evidence.

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iii. The court has inherent authority to order the disclosure.

c. The monetary terms of the settlement were not discoverable, but information concerning prior sexual harassment was.

ii. Confidentiality means different things to different partiesa. At maximum, wants no information to get out at all, not even that a case was tried.b. Accomplished through the return of documents, non-disclosure agreements, and penalties for violations. c. Usually subject to provisions that courts can order disclosure when required by law (else the court wouldn’t allow the settlement).

iii. Other relevant cases mentioneda. Pansy v. Borough of Stroudsburg, where the court held that “good cause” must be shown to get an order of confidentiality in a settlement or other phase of litigation.b. Wilk v. American Medical Association, where plaintiffs in similar cases against the AMA were allowed access to all of the Wilk discovery.

c. Contracting for a judgementi. Neary v. University of California (cattle rancher libel action)

a. The court agreed to vacate the judgement of the trial court because parties agreed to settle while the appeals were pending. b. The court felt that it existed to do what the litigants wanted to reach an agreement. Both sides really wanted the vacatur.c. The dissent was worried about what this implied for general regard of trial court judgments and discouraging prejudgment settlements. d. Here, the parties were private, and no public issues were implicated. Also, the case had dragged out over 13 years. Application of uncontroversial law to complicated facts.

ii. U.S. Bancorp Mortgage Co. v. Bonner Mall (repossession)a. The SC decided that appellate courts should vacate civil judgments of subordinate courts in cases that are settled after appeal is filed or certiorari sought only in the most serious of cases. b. Vacatur must be granted when a controversy becomes moot for no reason caused by the parties, or when mootness results from the unilateral action of the party who prevailed in lower courts. (Remitur and additur are similar.)c. Judgments are not the property of litigants, they are presumptively correct and valuable to the legal community as a whole.

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d. This was a case with serious public implications (undecided question of bankruptcy law). Also, Bancorp had given up its right to appeal. e. Bonner just wanted the settlement, he didn’t care about vacatur. The other side wanted info on the bankruptcy law.f. It’s one thing if district courts want to vacate their own judgements, it’s another for courts of appeals and the SC to be engaging in vacatur.

iii. Why settle after a verdict?a. Winner’s – avoid costs and risk of losing on appealb. Loser’s – chance to get something despite a loss at trial.

3. Fee Shiftinga. Who pays for the litigation affects parties’ negotiation strategies. If thinks that will win, each hour of work done by ’s lawyer increases the judgment against , which might encourage to settle earlier.

i. Rule 68 addresses this by visiting consequences on who refuse what turns out to be a good settlement offer.

a. Winning party usually gets costs (fees of clerk, marshall, court reporter, photocopying), but not attorney’s fees.b. If should have taken the settlement (recovered less at trial), then:

i. does not recover his own costs andii. must pay ’s costs incurred after the offer.

c. In cases where prevailed and was entitled to fee-shifting, Rule 68 does include attorney’s fees.

ii. Fee-shifting poses conflict of interest problems for lawyer and client. The following case illustrates how.

b. Evans v. Jeff D. (legal aid clinic takes settlement without fees)i. Two issues in this case:

a. Does the fee act prohibit fee waivers as a condition of settlement? The court rules that it is ok for ’s attorney to accept a settlement which precludes payment of attorney’s fees if he thinks it’s the best deal he can get for his client.b. Did the district court abuse its discretion by approving the settlement? The court found that this was ok.

ii. No fees is ok, despite the fact that it will negatively impact future litigants who the clinic lawyers will not be able to help. iii. The Fee Act does not require the imposition of lawyer’s fees, it simply provides a way for to collect them.iv. This makes attorney’s fees a bargaining chip in settlement negotiations. This could be good or bad, depending.

c. Rule 68: Offer of JudgmentAny time prior to 10 days before trial begins, a party may serve a

settlement offer to moving party. If party accepts offer (written notice) within 10 days, either party may file offer and acceptance with clerk. Unaccepted offer is considered withdrawn. If judgment obtained by

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offeree is less favorable than offer, offeree must pay costs accrued after offer was made. When liability is determined, but amount of damages is not, the party judged liable may make offer. This second type of offer has same effect as offer made before trial if served not less than 10 days before hearings for damages.

B. What’s the timing on these sorts of things?Grievance Complaint Trial

Settlement --------------------------------------------------------------------------------------Preliminary Injunctions-----(sometimes trial is moved up)----------Summary Judgement---------------------------------------------------------

C. Provisional Remedies1. Characteristics

a. Litigants cannot always wait until the courts decide the whole case.b. Designed to help parties avoid remedies that come too late (don’t want a company going bankrupt while it suffers unfair business practices).c. Based on incomplete information (by definition)

i. How should the court decide whether to grant temporary relief when all the information is not yet available?ii. When does the curtailment of ordinary procedures in granting provisional relief amount to a denial of due process?

2. Preliminary Injunctions a. Temporary Restraining Orders

i. Inglis & Sons Baking Co. v. ITT Cont’l Baking Co. (anti-trust)a. The trial court denied a preliminary injunction protecting Inglis from competition. The appellate applies de novo review to find that the trial court used the wrong test. b. Two standards permit the issuance of a TRO:

i. Traditional Test – 1) will suffer irreparable injury, 2) will probably prevail on the merits, 3) will not be harmed more than is helped, 4) injunction is in the public interest. ii. Alternative Test - must prove either 1) combination of probable success and possibility of irreparable injury or 2) serious questions are raised and the balance of hardships tips in ’s favor. (That is, if the harm is grave, and has a fair chance of success on the merits, gets the TRO. Or, if the harm is weak, but there’s a strong case on the merits, gets the TRO.)

ii. Realize that TROs are often the end of the case. TROs are preliminary injunctive relief, there are also preliminary forms of monetary relief – attachment and garnishment. iii. TROs are issued for 10 days only, to be continued (another 10 days), you need to show a good reason.

b. Due Processi. Fuentes v. Shevin (seizure of goods under writs of replevin)

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a. The court ruled that FL and PA statutes authorizing the repossession of goods upon application for a writ of replevin and posting of a bond were unconstitutional.b. The whole point of due process is to give fair warning, there is a right to notice and the opportunity to be heard. c. The Due Process right to notice comes from ownership of property, and these were installment payment goods. Nevertheless, the court finds enough ownership interest in the partially paid goods to invoke the XIV Amendment.

ii. Hence, preliminary remedies can be too fast; they can be a due process violation.iii. We see a calculation made between the cost of increased process, the chance of error, and the interest of the party that might be unjustly deprived. If C < E · I, we get increased process.

c. Rule 64: Seizure of person or property (refers to state law)During action, remedies providing for seizure of person or property

are available under condition as dictated by state in which district court is held. (1) U.S. statute governs as applicable, (2) action where these remedies are used shall be prosecuted. Remedies available are arrest, attachment, garnishment, replevin, and sequestration. d. Rule 65: Injunctions

[a] Preliminary Injunction[1] Preliminary injunction must be issued with notice to adverse party.[2] Court may order trial of action on merits to be consolidated with hearing for application of preliminary injunction. Any evidence given in application for preliminary injunction, if admissible on merits, becomes part of record on trial and need not be repeated there. This subdivision can be applied to save a party’s right to a trial by jury.

[b] Temporary restraining order can be granted without notice if:[1] Immediate injury, loss will result before opposing party can be heard, [2] Attorney certifies in writing that efforts were made to give notice, and gives reasons for giving notice in this instance.

Each order shall be dated; be filed with clerk; define injury and why irreparable, state why no notice should be given. Order will expire after 10 days, unless time extended by court. If TRO issued without notice, motion for preliminary injunction hearing will be set at earliest time, taking precedence over other matters. When motion is heard, the party filing TRO shall apply for preliminary injunction or else TRO will be dissolved. On 2 days’ notice adverse party may move to dissolve or modify TRO; court will hear motion.

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[c] TRO or restraining order only issued upon giving security of applicant, in sum as may be incurred by party being served by the order. No security applies to U.S. or officer or agency of U.S.[d] Both TRO and injunction shall state reasons why issued in specificity and reasonable detail. Document is binding only to parties to action.[e] These rules do not modify TRO and preliminary injunction actions between employer/employee, matters relating to interpleaders, or actions required to be heard by Congress.

D. Comparison of SJ with 12(b)(6), motion to dismiss 1. Similarities:

a. Both 12(b)(6) and SJ ask a court to get rid of case based on substantive law. b. Both point to lack of support in the record for a party's claim.

2. Differences: a. SJ pierces the pleadings by looking at proof behind pleadings.

i. SJ may be granted if movant can show there is no issue of fact presented by the pleadings. Proof can be affidavits, interrogatories, depositions, supporting documents and the like.ii. 12(b)(6), in contrast, assumes that the allegations put forward in the complaint are all true and is granted when there is a flaw in the

pleading (not a flaw in the evidence, as in SJ) a. Parties can plead things vaguely enough to get past 12(b)(6) motion (Glannon example of woman alleging "injuries" in state that does not allow for recovery for emotional distress.) She will get past 12(b)(6) motion, but her claim will be shot down on SJ. b. In SJ motions, court issues a judgment on the merits (res judicata and collateral estoppel)

iii. In 12(b)(6), court dismisses complaint without making a decision on the underlying merits.

b. In addition, judge might allow for an amendment. c. Who can bring the motion?

1. SJ can be brought by either party a. Easier for to prevail, since all that is needed for SJ is to show that can’t prove one element of the claim. b. has to allege for each element of the claim, but might gain something by taking one part of the case off the table.

2. 12(b)(6) can only be brought by defendant. d. All or nothing?

1. SJ can resolve portions of the complaint 2. 12(b)(6) is all or nothing.

e. Issues of proof:1. Affidavits and fruits of discovery must be attached to SJ motion, as additional support for the motion.

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2. 12(b)(6) stands alone, no additional information is attached because it only looks at "the face" of the complaint.

f. Timing1. SJ can be filed by almost right away, any time after 20 days following the commencement of litigation.2. 12(b)(6) can be filed as soon as knows about the claim.

3. Rule 56: Summary Judgment (governs conduct)a. Party seeking to recovery upon claim, counter-claim, or cross-claim or seeking declaratory judgment may, after 20 day expiration from beginning of action or after motion for summary judgment, move for summary judgment.b. Party against whom claim, counterclaim, or cross-claim is asserted (or declaratory judgment sought), may move for summary judgment.c. Motion served at least 10 days before time for hearing. Adverse party can serve opposing affidavits prior to hearing. Judgment will be filed if documents do not show genuine issue as to material fact. Summary judgment can be issued on liability alone, even if there is an issue on the amount of damages.d. If judgment not entered for whole case and trial is necessary, court will ascertain what material facts exist without controversy/which are controverted. Court then establishes facts as sees just and trial is conducted on this basis.e. Affidavits made on personal knowledge, setting forth facts admissible as evidence (also show that person competent to make such personal knowledge). Sworn certification attached to papers. Court permits affidavits to be supplemented/opposed. In motion for summary judgment, adverse party cannot rest on denials of fact or allegations alone, response must provide facts showing there is an issue to be tried. If this response is not given, summary judgment will be entered against adverse party.f. If it appears party opposing the motion cannot present facts to justify opposition, court can refuse judgment or may order continuance. g. If it appears that any affidavits are presented in bad faith or for purposes to delay, court will order party to pay expenses (including attorney’s fees) and any party/attorney may be held guilty of contempt.

4. Yeazella. Summary judgement reaches both the legal and factual merits.b. The purpose of SJ is to weed out factually unsupported claims. c. Celotex Corp. v. Catrett (asbestos poisoning)

i. The court found that it was enough for the moving party to state that the other side (bearing the burden of proof) has not proved its case. Will want to point to something, though. ii. There is no requirement in Rule 56 that the moving party support its motions with affidavits or similar materials negating the opponent’s claim.

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iii. This does not mean that the party threatened with SJ must produce admissible evidence in order to avoid SJ. Any evidence, other than the pleadings themselves, will do.

d. Visser v. Packer Engineering Associates (age discrimination)i. What must a P show to defeat D’s motion for SJ in age discrimination cases? The P must show that his firing was caused in substantial part by his age. ii. It is not enough to say that you’re old.

a. There was no evidence the firing was motivated by age.(Court of appeals threw out hearsay affidavits and ignored evidence that Visser’s replacement was younger, and that Visser’s pension was about to vest.)b. Thus, SJ was appropriate.

iii. The dissent points out that this could have been a mixed-motive firing case. If this is true, then if proves one of the reasons was age, has to prove that would have been fired anyway. It seems odd that SJ was granted here.

V. JuriesA. Judge or Jury: The Right to a Civil Jury Trial

1. Historical Reconstruction and the VII Amendmenta. U.S. is the only industrialized nation to offer parties a choice of jury or bench trial in civil cases.

i. In the old days, juries went out an conducted their own investigations, charged with finding the truth.ii. Framers thought that juries were a basic part of democracy, since people apply the law made to them.iii. Juries make the last call on how to apply the law (nullification).

b. VII Amendment preserves the right to a jury trial.i. Since English courts were split in two, equity and law, cases that would have fallen in law when the VII Amendment was ratified are entitled by right to a jury. Cases that fell in equity do not.ii. The test is a historical one – Would this claim lay within the jurisdiction of a common law court in 1791? If yes, jury trial right.

a. Equitable relief – restitution, injunctions, specific remedies, multi-party actions, breach of duty, fraud.b. Common law – compensatory monetary damages, other “typical” cases.c. But the line blurred, sometimes the choice was based on who would make a better fact-finder.

c. What’s good about juries?i. Represent a cross-section of the community.ii. Might err on the side of justice.

d. What’s bad about juries?i. Might not be able to understand the law or facts. ii. Expensive – lost work, procedural expenses, feeding them.

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iii. Hard to get 12 people to agree on anything. 2. Applying the Historical Test to New Claims

a. What happens when the claim is of a type that didn’t exist in 1791?b. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (lay-offs)

i. Union members file grievances with the union alleging that the company is violating the collective bargaining agreement. Union prosecutes some but not all of the claims. Union members sue the union and the company, dropping the claim against the company because it was bankrupt. want a jury trial, want a bench trial.ii. The question, is their claim in law or equity? Statute is unclear.

a. Majority opinion – look at claim, and then the remedy. i. The union claims:

a. Arbitration (court rejects), b. Trustee relationship (equitable claim) c. Malpractice claim (court rejects). d. The court invents a breach of contract claim (legal). So the claims are one of each.

ii. The remedy: money, which is usually law, unless it’s restitution, which would make it equity. But the SC finds that it’s compensation, so it’s a legal thing.iii. 1+1 = 2 (law) > 1 (equity) => jury trial. iv. Consider both the claim and the remedy, but the remedy controls.

b. Brennan’s concurrencei. “Why bother with the historical analysis of the claim? Just use the type of remedy.” ii. Eliminates revisionist history and the fact that claims have changed a lot since 1791.

c. Multiplicity of concurrences, the dissent (just go with the claim) show that SC judges have a hard time categorizing claims – how are “regular” judges be able to do this?d. Functional test – maybe the guide should be if a jury or judge would be better at deciding the facts.

iii. get a jury trial, since the relief sought was legal. c. Rules 38 and 39 expand the right to a jury. If a party believes it has a right, it must demand a jury within 10 days of the last pleading.

i. Failure to request a jury might not bar one, court retains discretion under 39(c) with consent of both parties, or if a right.ii. The right applies to both sides – if the case falls into jury trial, and doesn’t want a jury, does, can demand one.iii. If neither party wants a jury, and there is no right, the court could impanel an advisory jury.

d. There is no constitutional right to a bench trial. 3. Rule 38: Jury Trial of Right

a. The Seventh Amendment and other federal statutory rights to a trial by jury will be preserved.

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b. Any party can demand a jury trial on issues guaranteed a jury trial by:1. Serving a demand for a jury trial within 10 days of the last relevant pleading.2. Filing the demand per Rule 5(d).

c. The party must specify which issues it wants tried by jury, otherwise the court will assume that this was a demand to try all issues to a jury. If one party asks for a jury trial on some issues, the other party may respond within 10 days asking for a jury trial on other or all issues.d. Failure to serve and file a demand per this rule constitutes a waiver of the right to trial by jury. A demand for a jury trial may not be withdrawn without the consent of both parties.e. These rules do not create new rights to trial by jury for admiralty or maritime claims under Rule 9(h).

4. Rule 39: Trial by Jury or by the Courta. When trial by jury has been demanded per Rule 38, the action goes on the docket as a jury trial. The trial will be to a jury unless:

i) Both parties agree (in written or oral stipulations) to a trial without a jury.ii. The court decides on its own initiative that a right of trial by jury does not exist for some or all of the issues.

b. The court will try issues not demanded for trial by jury. If a party fails to demand a jury trial when it had a right to a jury, the court may decide to order a jury trial on any or all issues. c. In all cases not guaranteed a jury trial, the court may on motion or its own initiative try any issue with an advisory jury. In cases against the U.S. when U.S. law provides for trial without a jury, the court may order a jury trial with the same effect as if trial by jury had been a matter of right.

5. Applying the Historical Test to New Proceduresa. VII Amendment and the Structure of Government

i. Administrative agencies now often conduct hearings, granted power to do so by statute.ii. Administrative law judges (ALJ) are members of the agency appointed to the job. iii. In general, the SC has upheld ALJ without juries, as long as the case is entirely outside the court system.iv. Atlas Roofing v. Occupational Safety & Health Review Commission – no jury trial right with administrative agencies.v. Granfinanciera, S.A. v. Nordberg – bankruptcy case (tribunals operate without juries, federal courts but not Article III) involving fraud. Fraud lay in equity in 1791 – did transferring the case to an administrative agency extinguish the jury right? Yes, said SC. vi. Theme – Congress can create administrative agencies and let them do things otherwise heard by juries. But if Congress leaves the case in court and takes away the jury, that’s no good.

b. VII Amendment and Changes in Judicial Procedurei. With both legal and equitable issues, do you have a jury?

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a. This is a problem with overlapping claims, where the sequence might matter (“binding effect”). b. SC ruling in American Life Insurance Co. v. Stewart is that the trial court gets considerable discretion.

ii. Beacon Theatres v. Westover (first-run movie rights)a. Issue of substantive law is whether “clearances” are ok.b. Fox’s Claim

i. Injunctive relief – stop Beacon’s harassment, equitable claimii. Declaratory judgment – contracts are ok, legal

c. Beacon’s Counterclaimi. Contracts do violate anti-trust lawsii. This is a legal claim, we want a jury

d. Which issue gets tried first? With or without a jury?e. SC holds that legal claim must proceed first, we worry more about interfering with a right to jury trial.f. Dairy Queen, Inc. v. Wood – high point of right to a jury trial, just about anything would count if the claim was written right. The SC has retreated from this position.

6. Incidents of Jury Triala. Principles of jury selection, size and decision rules have changed.b. SC has permitted six-person juries.c. Some states permit non-unanimous verdicts (2 or 3 of 12 votes), the federal government only thinks this ok sometimes, when parties consent.

7. Rule 48: Number of Jurors – Participation in VerdictJuries will have at least 6 and not more than 12 members. All jurors shall participate in the verdict unless excused from service per Rule 47(c). Unless the parties stipulate to other conditions, the verdict must be:

a. Unanimousb. Made by a jury not reduced to fewer than 6 members.

8. Rule 57: Declaratory JudgementsThe existence of another adequate remedy does not preclude a judgement for declaratory relief in cases where appropriate. Court may order a speedy hearing of an action for declaratory judgement and may advance it on the calendar.

B. Qualifications of the Trier 1. Selecting Jurors

a. Summoning a Jury Pooli. We want the pool to represent the community at large in terms of race, gender and class. ii. Usually use the voter registration lists plus something else, since not everyone registers to vote.

b. Challenges for Causei. Voir dire – law French term for the jury selection processii. Relatives, friends and employees of the parties are excluded, otherwise, judges are reluctant to dismiss for cause.

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iii. Prospective jurors are questioned by the court, the parties, or both to see if there is prejudice or bias.

c. Peremptory Challengesi. Edmonson v. Leesville Concrete Co. (crushed worker)

a. In Batson v. Kentucky, SC said that peremptory challenges based on race violated ’s right to equal protection in criminal cases. b. SC holds that in a civil trial exclusion on account of race violates a prospective juror’s equal protection rights. c. Complicated procedural issues

i. V Amendment applies to state action, not private parties in civil litigation. (SC gets around that.)ii. Can a litigant bring a third-party claim on behalf of a juror discriminated against on basis of race?

a. Has litigant suffered a concrete, fixable injury?b. Does litigant have a close relation to the third party?c. Is there some hindrance to the third party’s ability to protect own interests?

d. Important related issuesi. Would it be ok for one side to dismiss jurors for race if the other side didn’t care?ii. You can’t wait to see what verdict the jury returns, if you challenge for race, must do it up front during the selection process. iii. Need a “pattern” of exclusions, i.e. 2 of 3.

ii. Each side gets three peremptories in a civil trial.iii. Why have them?

a. Gut reactionb. Fairer juryc. Maybe a juror got alienated in voir dire

iv. Exclusiona. Professionals (doctors, lawyers) used to be kept off juries, on grounds that they were too busy, or would unduly influence other jury members.b. Now, the exemption is no longer blanket.

d. J.E.B. v. Alabama (child support case where gov’t gets all-female jury)i. It is unconstitutional for the state, but not a private civil litigant, to exercise a peremptory challenge based on gender. ii. Generally, equal protection allows more room for unequal treatment on the basis of gender than on race.

2. Selecting Judgesa. Some states permit peremptory challenges of judges by filing an affidavit saying the judge is prejudiced.

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b. Federal system permits challenges, but only for cause. (See 28 U.S.C. §§144 and 455).

i. Judge formerly served as a lawyer in the case below.ii. Judge served in government and expressed an opinion on the merits of the case. iii. Judge has financial interest in the case.iv. Judge can DQ himself if he thinks he can’t be impartial.

3. Rule 47: Selection of Jurorsa. Parties or attorneys may conduct examinations of prospective jurors or court may do it. If court does it, parties/attorneys will be allowed to supplement examination.b. Court allows number of peremptory challenges as stipulated in section 1870 (three).c. Court can excuse juror from service for good cause.

4. 28 U.S.C. §§1861-63(b), 1867, 1870a. §§1861-63(b)

i. §1861 – litigants in federal courts have a right to juries selected from a cross-section of the community. All citizens have the opportunity to be considered for service. ii. §1862 – no citizen shall be excluded from service on the basis of race, color, religion, sex, national origin or economic status. iii. §1863

a. Each U.S. District Court will have a plan for random selection of jurors.b. Each plan will:

i. Establish a jury commission to manage the jury selection process.ii. Specify if names come from voter registration or actual voter lists.iii. Specify how the names will be randomly chosen.iv. Provide for a master jury wheel. v. Specify who gets exempted – like public safety personnel, undue hardshipvi. Bans active military personnel, fire fighters, executive, legislative and judicial officers of the US or any state.vii. Fix time names are disclosed to public, if ever.viii. Specify how people’s names get assigned to various jury panels once drawn.

b. §1867 – Challenging Compliance with Selection Proceduresi. Criminal cases – before voir dire or 7 days of finding out the process was bad, move to dismiss.ii. Criminal cases – before voir dire or 7 days of the Attorney General finding out that the process was bad, move to dismiss or stay the proceedings.

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iii. Civil cases – before voir dire, or 7 days, any party can move to stay the proceedings.iv. Must have a sworn statement of facts.v. People charged with federal crimes (or prosecuting them) can use this claim.vi. Contents of jury selection process shall not be disclosed unless the district plan calls for it or it is necessary to face a challenge.

c. §1870 – Challengesi. In civil cases, each party gets three peremptory challenges. ii. All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.

VI. TrialA. Limits of Rational Inference

1. Reid v. San Pedro, Los Angeles & Salt Lake Railroad (cow hit by train)

a. Trial court allows case to go to jury, but court of appeals finds that the TC should have issued a directed verdict for . b. No rational jury could find by preponderance of the evidence that the cow was more likely to get on the tracks through a hole a mile away than an open gate yards away.

2. What change in the evidence would have been enough to get to the jury? B. Procedural Control and Rational Proof

1. Juries, Democracy and Rationalitya. Juries are asked to do a lot – find facts, act as a lay democratic institution, apply law in a tempered fashion.b. The legal system is dedicate to rationality, but committed to finding facts in ways consistent with other goals. How do you do this?

2. Adversary Responsibility for Proofa. Responsibility for proof is shifted from the court to the parties. b. Get a game-like, symmetrical trial since both sides take turns developing their proof.

3. Burdens - usually bear the burden of pleading on most elements.a. Burden of Persuasion – how convinced does the jury have to be?

i. A jury question – did the evidence meet the standard?ii. In civil trials, the standard is “just a little bit more likely.”

b. Burden of Production – who has to bring forth the evidence?i. Usually falls on same party with burden of persuasion.ii. Bring enough that a reasonable jury could find for you.

4. Controlling Juries Before the Verdicta. Directed Verdict (Judgement as a Matter of Law) i. Pennsylvania Railroad v. Chamberlin (crushed brakeman)

a. TC granted a directed verdict for on grounds that no reasonable jury could have found for . b. But did have a witness, while had many witnesses. However, the evidence provided by ’s witness could be

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interpreted two ways – isn’t that the classic stuff of a jury decision? The SC says no. c. SC rejects the scintilla rule, which says if there’s any evidence at all on the opposing side, must go forward.

ii. Directed verdicts are appropriate in cases where no reasonable jury could possibly find for the other side. iii. Three tests for JNOV

a. Favorable evidence rule – look only at ’s evidence when deciding.b. Qualified favorable evidence rule – look at ’s evidence plus any un-impeached, un-controverted evidence offered by .c. All evidence rule – court looks at everything, but this starts to look like a whole new trial.

iv. NOTE: If a party intends to ask for JNOV after the verdict if the verdict is not favorable, the party must first move for a directed verdict prior to submission to the jury. If a motion for directed verdict is not made, the right to ask for JNOV is waived.

b. Excluding Improper Influencesi. Judges don’t like entering JNOV, so they try to make sure that juries will enter verdicts that can be sustained.ii. Tools include voir dire, exposure to proper evidence only, no discussing case with others, and even sequestering the jury.

c. Instructions and Commenti. Judge tries to teach the jury by framing questions for decision and maybe commenting on the evidence.

a. Special verdictsb. Interrogatories

ii. Buss says that talking about the evidence is a bad idea, could lead to punishment from higher courts. Federal judges do have the authority to do so, but it is quite limited.iii. Two audiences for jury instructions

a. Jury itself, who may or may not need the law explained to them in small words (patent law, negligence).b. Appellate court, which could reverse the case if the instruction misstates the law in a material way.

5. Rule 50(a): Judgement as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings

a. Judgement as a Matter of Lawi. If at trial a party has been fully heard and the court determines there is no reasonable way a jury could find for that party, the court can rule against the party as a matter of law. ii. Motions for judgement as a matter of law can be made anytime before the case goes to the jury. A party’s motion for judgment as a matter of law should include what judgement is desired and the law and facts on which the decision is to be made.

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c. Granting Renewed Motion for Judgement as a Matter of Law; Conditional Rulings, New Trial Motion

i. If a renewed motion for judgement as a matter of law is:granted – the court will also rule on the motion for a new trial, if any; considering whether the motion for a new trial should be granted if the judgement is vacated or reversed, specifying what gets a new trialconditionally granted – doesn’t affect the finality of the judgementconditionally granted and judgement reversed on appeal – new trial proceeds unless appellate court says noconditionally denied – appellee on may assert error in the denial ii. Any party who loses a case under a judgement as a matter of law who wishes to request a new trial under Rule 59 must file within 10 days.

d. If a motion for a judgment as a matter of law is denied, the party that won on the motion can ask for a new trial at the appellate level if the trial court erred in granting the motion for judgement. If the appellate court reverses the judgement, nothing in this rule stops the appellate court from granting a new trial.

6. Controlling Juries After the Verdicta. Judgement Notwithstanding the Verdict

i. Say the judge made no error, but the jury returns with a verdict that is unsupportable. (An error means a party can appeal.)ii. Granted on the same grounds as a prejudgment verdict as a matter of law, “no legally sufficient evidentiary basis for a reasonable jury to find for the party” against whom the motion is made.iii. How would a case so one-sided get to the jury at all?

a. Say forgot to file for a judgment as a matter of law before the case went to the jury (then right is waived), or that the judge didn’t grant such a motion.b. Judge might not grant a Rule 50 motion if he fears being reversed on appeal (whole new trial needed).

i. In theory, if the evidence really is one-sided, the jury returns the right verdict.ii. If not, the judge can always grant JNOV.

iv. Rule 50(b): Judgement as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings[b] If the court refuses to grant a motion for summary judgement, the court is assumed to have submitted the issue to the jury. The party that asked for judgment as a matter of law may renew its request within 10 days after the judgement is entered, or may request a new trial per Rule 59. When the court rules on the renewed motion, it may:

[I] If a verdict was returned:[a] Allow the judgement to stand,

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[b] Order a new trial, or[c] Direct entry of judgment as a matter of law; or

[ii]. If no verdict was returned:[a] Order a new trial, or[b] Direct entry of judgement as a matter of law.

b. New Trial i. Flawed Procedures

a. Granted when the process leading up to the verdict is severely flawed due to judge error.

i. Lawyer makes impermissible statement to juryii. Evidence improperly admittediii. Incorrect jury instructionsiv. Juror misconductv. Serious errors only, harmless errors don’t count

b. Under Rule 59, the judge can do this at his own discretion, or if a party moves.

ii. Flawed Verdictsa. Verdicts “against the weight of the evidence”

i. Begins the contest againii. Lower standard than JNOV, which makes the loser the winner of the case.

b. Lind v. Schenley Industries (salesman’s plush contract)i. Jury finds that did have a contract that was breached. moves for JNOV and a new trial.ii. We didn’t review the JNOV part of this case.iii. says evidence was admitted improperly, verdict was contrary to the law, and against the great weight of the evidence. iv. Appellate court looks only at “against the great weight of the evidence” portion of the case. v. What standard should be applied when trial court reviews a jury verdict? Miscarriage of justice.vi. What standard do appellate courts apply to decide if the trial court made the right decision? Abuse of discretion – TC gets a lot of deference, but closer scrutiny is applied when the new trial was ordered on “against the weight of the evidence.”vi. Idea – protect the right to a jury trial, let juries weigh the evidence, that’s their job.

c. Conditional New Trialsi. New Trial Limited to Damages – judges can order new trials limited to damages, but only if convinced that the errors that lead the jury astray on damages did not affect its calculation of liability. ii. Remittitur and Additur

a. Under some circumstances, the judge can reduce or increase the amount of damages to a “reasonable” amount.

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b. Remittitur = threaten new trial unless accepts less damages, additur = threaten new trial unless accepts increased damages.c. When do you grant either? “Shock the conscience” test or “passion, bias or prejudice test.”d. How much should the new damages be?

i. Highest amount a jury could award.ii. Reasonable amount.iii. Lowest reasonable amount.

e. SC has held additur is unconstitutional, remittitur is ok. Some state courts permit both.

7. Rule 49: Special Verdicts and Interrogatoriesa. The court may require the jury to return a special verdict in the form of a special written finding of each issue of fact. The court can do this with specific written questions or categories of questions, and must include instructions allowing the jury to do its job. If the court leaves out issues mentioned in the pleadings, each party waives the right to a jury trial on that issue unless it objects before the jury is retired. Such omitted issues may be decided by the court or presumed to be in accordance with the special verdict.b. In addition to asking for a general verdict, the court may submit to the jury special interrogatories on one or more issues of fact necessary to the verdict. The court will give any needed special instructions on how to do this, as well as the usual instructions on the law. When the general verdict and special answers agree, the verdict will be entered according to Rule 58. When the answers are consistent with each other but not the verdict, the court may enter the judgement according to the answers under Rule 58 or send the issue back for more deliberation. When the answers conflict with each other and the verdict, the court will return the jury for further consideration or order a new trial.

8. Rule 51: Instructions to Jury: ObjectionAt the close of the evidence, or earlier if the court says so, any party may submit written requests to the court, asking that the jury be instructed in certain ways on the law. The court will inform counsel how it will act on the requests before closing arguments. The court may instruct the jury before or after closing arguments, or both. No party can claim that a failure to give an instruction was an error unless the party does so before the jury retires. Such objections can be made out of hearing of the jury.9. Rule 59: New Trials; Amendment of Judgements

a. A new trial may be granted to all or any of the parties on any or all of the issues when:

i. In any action in which there has been a trial by juryii. In any action in which there has been a trial without a jury

for any of the reasons for which new trials have heretofore been granted.b. A motion for a new trial must be filed within 10 days after the judgement.

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c. When a motion for a new trial is based on affidavits, they should be filed with the motion for a new trial. The opposing party has 10 days after service to file opposing affidavits, the period may be extended up to 20 days. d. The court can order a new trial for any reason that would justify grant a new trial within 10 days. e. Motions to alter or amend a judgement shall be filed no later than 10 days after entry of the judgement.

VII. AppealA. Background

1. Federal system provides for one appeal as a matter of right. 2. Second level of review is discretionary. 3. Appeals are on a rapid increase, which is odd, since very few are successful.

a. TC have more expertise at evaluating facts, appellate courts are better at making legal decisions.b. It would be highly inefficient to have full appellate review of all trials.

4. Trial court decisions are treated with much deference, since who can appeal, from what stage of the trial, and the range of review are highly restricted.

B. Who May Seek Review?1. A Losing Party: Adversity

a. Parties can appeal only on adverse judgments. If you lost on one part of a claim, but would have gotten the same type of damages, you can’t appeal. Adverse = type of relief different from what you requested. b. Aetna Casualty & Surety Co. v. Cunningham (contractor fraud)

i. Aetna wins on breach of contract claim, but loses on the fraud claim. Contract claims are dischargeable in bankruptcy, so Aetna wants the fraud verdict. ii. Court says Aetna can have a new trial since the type of relief sought is (supposedly, the court didn’t have to make that determination to announce this rule of law) different.iii. “Quality” of the relief, not just quantity, matters.

c. Mootnessi. One may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible. ii. Exceptions – question raised is likely to recur, application of the doctrine would prevent appellate review at all (abortion, divorce).

2. Who Raised the Issue Below: Waivera. If you lose on a point at trial, it used to be that you have to make a formal exception in order to raise that point on appeal. Now, that point has to be a part of the trial record, but not formally noted.

i. Want to get a good evidentiary record for appeal.ii. Maybe the trial court could address the problem.iii. Exceptions – the winner may use a new argument to support his verdict, may complain about clear and plain error, issue entangled

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with other issues which were properly preserved, jurisdictional issues, and new law affecting the case.

b. Carson Products Co. v. Califano (secret ingredient in shaving powder)i. Between the verdict and the appeal, FDA procedures changed (another court finds a Due Process problem). Companies whose cases were already decided got reheard, and pending cases were subject to the new standard. ii. Carson brings up new argument about due process. Appellate court finds raising a new claim based in new law is ok in exceptional circumstances. (Carson loses in the end anyway.)iii. This was a matter of law, no factual issues, so the court of appeals was competent to handle this case.

c. Massachusetts Mutual Life Co. v. Ludwig (freight, not commuter train)i. Combination of who and how you can appeal case.ii. Two issues before the trial court: conflict of laws and amount of damages to be awarded (substantive issue). Mass Mutual wanted IL law and single damages, afraid MI law means double damages.iii. Mass Mutual wins on substance (single damages only), loses on which state’s law controls (MI). Ludwig appeals.iv. Mass Mutual does not cross-appeal, but changes tune to say IL law should win, but if MI law wins, still single damages. v. Court of appeals says that Mass Mutual can’t appeal on MI/IL issue, and was wrong, since MI law means double damages.vi. SC issues per curiam ruling, saying that cross-appeal wasn’t required since all Mass Mutual did was attack reasoning of district court. Court of appeals should have addressed conflicts issue. vii. Note that Mass Mutual probably couldn’t have cross-appealed anyway, since the Court of Appeals didn’t think they were adverse.

3. Who Was Not Deterreda. Many jurisdictions now seek to limit appeals. b. Legislatures have placed some burden on appeals, SC thinks this is constitutional. Often done by imposing lawyer’s fees on losing side.

C. When a Decision May Be Reviewed: “Finality”1. Final Judgement Rule

a. Appellate Jurisdiction and the Final Judgment Rulei. Appeals lie only from “final decisions” of district courts in the federal system, most state courts follow that rule. Final decisions = end the litigation on the merits and leaves the court nothing but executing the judgement.

a. Discourages frivolous appealsb. Low likelihood of overturning a verdict anywayc. Want people to take trial court seriously

ii. Liberty Mutual Insurance Co. v. Wetzel (Title VII hiring case)a. Court enters judgment for , but they don’t get the kind of relief they sought. files for appeal and asks that judgment be entered and stayed.

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b. Court kills appeal by not issuing injunction. Although this was actually probably designed to help , it hurt since case doesn’t have a “final judgment.”c. Appellate court affirms on merits, ignoring final judgment issue. goes to SC on the merits, when SC realizes that there’s a problem with the appeal. d. On own authority, SC raises this problem (jurisdiction).e. Asking for multiple forms of relief is not more than one claim, since had only one claim, a ruling addressing that claim is final.f. can’t complain under 28 U.S.C. §1292(a), not much under §1292(b), and the court of appeals thought it was a §1291 problem but was wrong.

iii. Realize that a trial court can “certify” an issue for appeal on its own initiative, but this is rarely done.

b. Defining the Moment of Judgementi. Appeal must be filed within 30 days for typical appeal, within 60 days if the US is a party. (Court may extend for good cause.)ii. Filing too early is bad too – if the final outcome is not decided, the motion for appeal is invalid. Some steps have been taken to remedy this, like saying that motions for JNOV don’t count against a filing for appeal.

2. Exceptions to the Final Judgement Rulea. Practical Finality

i. Lauro Lines s.r.l. v. Chasser (hostage takers on a cruise ship)a. Lauro wants to have this case tried in Naples, not NY. Wants a separate verdict on this issue, and wants to appeal when it loses. b. Was denial of the motion to dismiss (claim by Lauro – NY courts have no jurisdiction) a final order under which an appeal may be taken? c. That motion was not a decision on the merits which ends the litigation. So must use collateral order doctine.d. Don’t consider tests one or two, the cruise line fails under the third test, since the issue is not appealable from final judgment. (“A right not to stand trial” is violated if you’ve gone all the way through a trial.)

ii. Illustration of collateral order doctrine.a. Does issue conclusively determine the disputed question?b. Does it resolve a separate issue from the merits (merits were Lauro’s liability for the death/injuries of passengers)?c. Is the issue reviewable on appeal from a final judgment?

b. Injunctionsi. 28 U.S.C. §1292(a) permits appeals from interlocutory orders of the district courts “granting, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

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ii. Such review is ok because of the special nature of injunctions and their potential for harm.

c. Interlocutory Appeals Under 28 U.S.C. §1292(b)i. More general exception that happens when the district court decided that the case will go better if a small portion is decided on appeal first.ii. Judge’s discretion determines if he asks for the appeal.

3. 28 U.S.C. § 1292(a) & (b)a. §1292(a) – Courts of appeals have jurisdiction of appeals from:

i. Interlocutory orders of district courts of US (and territories) covering injunctions, except where the SC gets to do it.

ii. Interlocutory orders appointing receivers to dispose of property.iii. Interlocutory orders determining rights and liabilities of admiralty cases.

b. When the district judge thinks that an order not otherwise appealable involves a controlling question of law with substantial ground for difference of opinion, and immediate appeal might materially advance ultimate termination of the litigation. Court of appeals has discretion to admit such an appeal within 10 days of the order being entered.

D. Scope of Review1. Law and Fact

a. Even if a decision is reviewable, and the trial court decision is flawed, it does not mean that the appellate court will change the judgment.b. Appellate courts exercise three kinds of reivew:

i. Abuse of discretion (application of law to fact, was TC in range of ok conduct? Judgment as a matter of law, weighting of the evidence, amendment usually go here.)ii. Clearly erroneous (was judge’s fact finding ok?)iii. De novo (application of law to fact, no deference to TC, jury instructions, admission of evidence [unless abuse of discretion])

b. Anderson v. Bessemer City (woman not hired as recreation director)i. Appellate court reviews the TC judge’s determination of fact.ii. SC thinks that appellate court was using de novo, but appellate court claimed to be using clearly erroneous.

a. Court of Appeals seemed to be saying “Was this right,” not just “Could a rational judge have found this way?”b. SC says that the review on fact-finding issues ought to be clearly erroneous, and the appellate court got it wrong. c. If there are two ways to view the evidence, and TC has a reason to believe one over the other, TC judgment stands. TC are better at evaluating witnesses, they don’t do it on paper alone like appellate courts do.

2. Harmless Errora. Errors that do not affect the substantial rights of the parties are not grounds for reversal.

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b. Substantial rights = could the case have come out the other way? (Low standard, “if it might have changed things, remand.) c. Realize that this is not a precise calculation, and there are organizational resource reasons why an appellate court might say something was harmless, even if it wasn’t.

3. Rule 61: Harmless ErrorNo error in admission or exclusion of evidence or defect or ruling is ground for new trial. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the party.

VIII. Alternative Dispute ResolutionA. Guided Negotiation: Mediation

1. Parties are the decision-makers, guided by the mediator. 2. Parties retain the right to reject the mediated result. 3. Usually chosen after a dispute arises.4. Doesn’t replace the courts, these may be turned to if mediation doesn’t work.5. Usually works best when aimed at altering relationships between parties with long-term dealings with each other that have reached a critical stage.

B. Contracting for Adjudication1. Overview

a. Arbitrator is like a judge in his decision-making power.b. Parties design a system of procedure to get a result they want:

i. Speed is often a goalii. Cheaper than a trialiii. The arbitrator is often an expert in the fieldiv. Parties control the substantive law that is considered.

c. Usually chosen before a dispute arises, and binding on the parties.d. Replaces courts, since they have limited review (usually confined to whether the procedures were followed) of arbitration agreements.

2. Possibilities of Arbitrationa. Permits parties to come up with procedures wildly different from what happens in the courts. b. Ferguson v. Writers Guild of America, West (screenplay credit)

i. Ferguson wanted full credit for a screenplay and the story for Beverly Hills Cop II. He is denied in the mandatory arbitration process established by the movie studios and the Writers Guild.ii. Seeks federal court intervention in the results of the arbitration. iii. The court declines to look at the merits, saying that this is something it doesn’t have the power to do. iv. The court addresses only whether the procedures were carried out correctly. Since Ferguson never brought those concerns before the appropriate arbitration tribunal, he can’t bring them up now. v. Courts can look at procedural issues because they are charged with enforcing arbitration agreements like contracts.

2. Limits of Arbitrationa. What if the process chosen is irrational (coin flip)?

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b. Lose a jury trial, rights guaranteed in court. c. Loss to public from closed debate instead of public record.d. Might not get increased speed and reduced cost.

C. Valuing the Alternatives1. Arbitration and mediation might not be fair in situations where individuals have little control over the proceedings.2. One author (Tina Grillo) claims that mediation severely disadvantages women in divorce proceedings. 3. The power a mediator has varies widely.

IX. American Procedure in Comparative PerspectiveA. The German System

1. Similaritiesa. Both are adversarial systems.b. German lawyers advance legal theories and lines of factual inquiry, assist with the examination of witnesses, discuss and distinguish precedent, interpret statutes, and formulate views on the law furthering the interests of their clients.

2. Main Differencesa. The court, not the lawyers, gathers and sifts evidence.b. No distinction between pre-trial and trial.

3. Specific Differences - Overviewa. Initiation: complaint must include proposed means of proofb. Judicial Preparation: judge keeps a dossier, routinely sending out for basic documents on his own initiativec. Hearing: as judges gets a basic sense of the case, schedules a hearing which might resolve the whole issue, if not, it establishes a schedule for interviewing witnessesd. Examining and Recording: testimony is recorded as the judge’s summary of what a witness said, lawyers sometimes suggest rephrasingse. Expertise: judges have the ability to seek expert advice on technical issues, define role of expert themselvesf. Further Contributions of Counsel: after testimony is offered, counsel can comment orally or in writing, suggesting further proof or legal theoriesg. Judgement: judge creates a written statement containing full findings of fact and reasoned applications of the law

4. Judicial Control of Sequencea. The judge determines what is investigated next, looking for the issue of law or fact that will dispose of the case.b. Counsel’s job is to guide the search by telling the judge where to look.c. No division into pre-trial and trial.d. Tone is of a business meeting, not theatre. e. Encourages settlement or dropping a case by telling litigants how he thinks things are shaping up.

5. Witnesses - no witness preparation, lawyers rarely speak to them outside court6. Experts

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a. Experts are chosen by the court, not the partiesb. Parties do have a chance to object (parties may exclude experts known to be prejudices, the expert chosen must be agreed to by both sides)c. Done from a professional list, or judge chooses someone who’s done well befored. Idea is to get to the truth, not pay for your side to be supported

7. Shortcomings of Adversary Theorya. False Conflict – fact gathering done in this system is the only part that isn’t as adversarial as ours, so it’s not like adversarial benefits would be destroyed by doing discovery the German way.b. Confusion with Criminal Procedure – in criminal law, the US tries to err on the side of the potentially innocent defendant, there’s no need to try to incorporate adversarial protections in civil law.c. Equality of Representation – German system provides more of a fair fight since the judge controls, in the US, the better lawyer often wins.d. Prejudgment – There is some concern that a judge might form a biased opinion during development of the evidence that could lead to a bad verdict. Author says that the adversarial role of the lawyers protects against this kind of abuse.e. Depth – Initiative in fact gathering is shared with the judge, and allocating the costs of litigation is less sensitive that the incremental steps taken by the US system. German judge cannot refuse to investigate party-nominated proofs without reason.

8. Appellate Reviewa. Disclosure of Grounds – German judgments are very thorough, so the reversal rate is low and esteem for the process is high. This is strong check on decisions being made for arbitrary or discriminatory reasons.b. Review de novo – German litigants have a right of appeal de novo, where no presumption of correctness is attached to the first judgment. Retrial becomes rereading the record (but what if the summary testimony was taken in a discriminatory way?)c. Adequacy of Safeguards – Complaints of judicial abuse of power are rare. Career incentives are designed to deter and correct abuse.

B. Which Do We Like Better? 1. The American system wins overall, but vote was close on some sub-issues.2. Americans

a. Pleading – if pleadings in Germany aren’t amendableb. Timing – if a jury can’t be kept with German proceduresc. Discovery – hands downd. Appellate system – we like de novo review on the full record

3. Germanya. Pleading – if initially insufficient pleadings can be fixedb. Timing – if we don’t care about jury participationc. Expert testimony – slight favoritism for the unbiased expert

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