Civ Pro II-- Strickland
Pleading a. Common Law Pleading (no longer used anywhere) i. Writs and Forms of Actions 1. Became so stylized and formal that all you knew was the cause of action. 2. Lawyers could lose the entire case by choosing the wrong form, style. ii. Responsive Pleading 1. Dilatory Pleas (postponing procedural difficulties i.e. jrd) 2. Peremptory (meritorious plea—beyond dilatory) a. Demurrer i. Concedes facts alleged BUT contests legal sufficiency. ii. “no basis for recovery” b. Traverse i. Concedes legal sufficiency BUT the FACTS aren’t true. c. Confession and Avoidance i. Concedes BOTH facts and legality BUT offers additional facts that overcome liability. (self-defense) d. Problems i. In CL, counsel had to pick ONE of these pleadings. ii. This screening was very effective (for better or worse) iii. Did not accurately portray facts/ substance iv. Cases often decided on technicalities (“game of skill”) as opposed to the facts b. Code (“Fact”) Pleading
i. A statement of the facts constituting the cause of action in ordinary and concise language (Cal Code Civ Pro) 1. Courts became stuck on how detailed the facts had to be 2. Led to technicalities that threw out good cases, kept in bad ii. Problems
1. Complaints were too broad/conclusory 2. Complaints were too evidentiary/ fact specific, courts became hung up on how
much fact was required c. FRCP “Notice” Pleading i. Enacted in 1938 ii. Rule 7 1. New rules abolished demurrers
iii. Rule 8(a): Claims for Relief (must contain 3 things)
1. Statement of Jurisdiction
a. Fed courts are of limited jrd b. “Why is the court allowed to hear this case?”
2. Statement of the Claim a. “Why should we hear this case?”
b. state subject matter if applicable
3. Demand for Judgment
iv. Rule 8(d): greatly departed from CL by not requiring one single claim to be “chosen”. 1. Complaint does not have to be consistent, CAN allege any claims wanted, even if
entirely inconsistent 2. Form of the complaint (Hadley v. Garrison sample) a. Caption [R.10(a)] b. Formalistic intro- no purpose whatsoever but preserving archaic language c. Numbered Paragraphs [R.10(b)]—very short “paragraphs” setting forth A fact.
d. Purpose of “intro Statement” e. “General Factual Allegations”-f. “incorporation” statement [r. 10(b)] reference”. The facts above give rise to the causes of action. h. “Prayer for Relief” [r. 8(a)] i. 3. Signature [R.11]- must be signed by the lawyer(s) Stating a Claim [Rule 8(a)] a. Requires “a short and plain statement of the claim showing that the pleader is entitled to relief”. b. At a minimum, this implicitly requires a complaint to i. Invoke a body of substantive law (battery, negligence, antitrust) ii. Articulate a factual scenario that falls within that body of law 1. Complaint needs to allege the elements of liability 2. Historically, the complaint requires VERY little with regards to elements. Only enough information to put defendant on notice as to what your claim is about. iii. Conley v. Gibson (U.S. 1957)— 1. “ a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove NO SET OF FACTS in support of his claim which would entitle him to relief.” 2. Complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” iv. Bell Atlantic v. Twombly (2007, seems to have changed pleadings, requiring more facts, law hasn’t settled yet) g. Counts or Causes of Action [R. 10(b)]—“all factual allegations are incorporated herein by
1. Based on Elements of Sherman Act (Anti-Trust)
a. Agreement or Conspiracy b. To restrain trade (competition) 2. Require a. Plausible factual grounds from which one might infer the elements of a claim
b. Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact). c. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.
some types of cases require more information in the pleading 1. iv. he is given more time to file an answer.d. “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed. you must personally hand D the process or hand it to a reasonable person at their home. Federal rules FRCP 9 provide for heighted pleading in two instances: mistake and fraud 2. Ashcroft v.”
3. Responsive Pleading
v. Proceeding to anti-trust discovery can be expensive. Rejects Conley’s “no set of facts” standard. Commencing the Action a. e. Filing the Complaint [R. It did this with private securities fraud 4. 5. The preferred method today is NOT the formal service (sheriff placing summons on D’s person) ii. Process must also comport with Due Process (Mullane). Applies Bell holding to non-anti-trust case 2. Why would a D ever sign off on this waiver? Incentives. Service of Process [R. 4] i. An allegation of parallel conduct and a bare assertion of
conspiracy will not suffice. Icqbal (2009) 1. Often the state’s rules are very liberal when serving process to corporations. Without. bringing it further away from historical notice pleading vi. 4(a) & (b) & Form 1] c. parallel conduct does not suggest conspiracy. Remember: satisfying Rule 4/state rule is only one step. Typically a P will request a formal service waiver. 3] b. If the D does NOT waive service. These were singled out based on the idea that these allegations were too easily fabricated and too potentially detrimental to defendants in the case of fraud 3. Congress has the authority to impose heighten pleading requirements as it sees fit a. Even before Twombly. If D signs off. 1. iii. The Summons [R. and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. citing Twombly extensively. then you have to proceed with actual service of process. If you’re serving an individual. which a D will sign off on. OR you may serve process according to the rules in the state in which you are filing. Case was dismissed.
i. The defenses for failure to state a claim and failure to join an indispensable party under rule 19 can be raised in any of the pleadings. Structure of FRCP 12 1. if any others are available. or at trial. Insufficient service—waived if not plead
1. Improper venue—waived if not plead d. by motion for judgment on the pleadings. Lack of pers jrd-. Rule 12(e): More Definite Statement
i. Why is it that we allow pre-answer motions? a. Failure to join a party under Rule 19 . Failure to state a claim upon which relief can be granted (12(b)(6))
g. These are the ONLY defenses that can been asserted in a pre-answer motion a. These pre-answer defenses allow both the court and both counsel to save time and money. Other Pre-Answer Motions a.
Rarely granted. but asks the court to force the complainant to more fully explain his complaint
b. 5. All other must be raised in the answer 4. Rule 12(b): Defenses—these can be filed pre-answer motion. 3. this rule prevents piecemeal and dilatory attacks on complains by the filing of successive motions under the Rule. In American courts. they must be consolidated and made together if they are to be made at all.If any single waivable 12b defense is raised. Insufficient process—waived if not plead e. ii. Rule 12(f): Motion to Strike
.waived if not plead c. a. the D must file some sort of answer or have a default judgment
entered against him. Because these defenses are mechanical and preliminary. Lack of SMJ b. Rule 12(a): Timing 2. having nothing to do with the actual merits of the case.
o Limitation on Further Motions. Used for highly inflammatory or prejudicial statement within the complaint
Again.4: žAllegations in Complaint: • Judy submitted statement to gang implicating Ed in recent theft of gang’s property. Rare. 7. Upon receipt of the information. D might respond with Statute of Limitations defense that. This claim deals both with procedure and merits. P may
have a legit claim.
and her statement was false. doesn't help plaintiff if it was a substantive issue)
b. 1986) 3. but if the defendant admits all of the pleadings. warrants judgment for the D. rarely granted. A motion under this rule may be joined with any other motion
under this rule. the gang beat Ed to death. Rule 12c: Judgment on the Pleadings a.
Sequence and Waiver of Rule 12(b) Defenses 1. on the face of the complaint. • • • Judy knew that the gang might retaliate against Ed by killing him. Substantive: “even if the complaint is true. (Allows lawyer to fix pleading if it was a procedural issue. . Must consolidate all 12(b)(6) defenses into one motion
. American Nurses’ Ass’n v. Illinois (7th Cir. Hypo 6. Yes because she probably knew the gang would retaliate Does Complaint sufficiently state a wrongful death claim? o iv. Procedural: this claim says that P has pled incorrectly/ improperly. Rule 12(g) • Joining Motions. .
o Right to Join.i. that was available to the party but omitted from its earlier motion. so often the court will allow the P to amend the claim. Rule 12(g) and (h): Sequence & Waiver iii. a
party that makes a motion under this rule must not make another motion under this rule raising a defense . the law does not provide a
remedy for such a complaint”
2. More likely: if complaint includes dates of occurring cause of action. Relevant Element of Virginia Wrongful Death Claim: o Judy “solicited” others to kill Ed. Except as provided in Rule 12(h)(2) or (3). P is entitled to relief on the pleadings b. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
12(b)(1) Failure to state a claim can be raised at any time up to trial. or (ii)include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.Rule 8(b) d.Rule 8(c) 4. it should specify what it denies and specify what is true/admitted. Affirmative Defenses. (1) When Some Are Waived. 12(b)(6) 12(b) defenses 2-5 must be asserted in the FIRST response to the complaint or they
are waived (this is rule 12(h)) v. A party waives any defense listed in Rule 12(b)(2)-(5) by:
o (A)omitting it from a motion in the circumstances described in Rule 12(g)(2)
o (B)failing to either: (i)make it by motion under this rule. Denials. Admitting & Denying Allegations—The Zielinski Standard p. Must admit or deny allegations in complaint line by line i.
(2) When to Raise Others (failure to state a claim and failure to join necessary party) (3) Lack of Subject Matter Jurisdiction SMJ can be raised at any time. Admissions.2. 12(b) Defenses b. If defendant intends to deny part of an allegation. General Content a. Rule 12(h) • Waiving and Preserving Certain Defenses. 382 a. The Answer 1. Timing (Rule 12(a)) 3.(Rule 8(b)) c. Requirement (Rule 12(a) and (b)) 2.
and will be treated as an admission under Rule (b)(6) 5. b. If any component turns out to be something that the D had no intention of denying. “The D neither admits nor denies the allegations in Paragraph A”—this is a non-response. Definition: Even if the allegations in a complaint are true and render
the defendant liable. Court will allow amendment unless it will prejudice the other party from presenting their case Courts will almost always permit amendments during discovery
Thereafter. Amendments to Pleadings 1. Approach to Drafting i.”
2. c. Plaintiffs are under no duty to respond to affirmative defenses iv. the court will be in position to declare the entire denial ineffective. Affirmative Defenses
a. Amended Pleadings “When Justice So Requires”: Beeck v. Rule 15 (a) governs amendments to the pleadings • Allows parties to amend a pleading once as a matter of right: o o • o o • o o Before responsive pleading. the defendant is not liable for some other reason 1. or Consent of adverse party. This caution is to prevent the trial court from denying the argument of a defense for being affirmative after you didn’t include it in the answer. or Within 21 days if no response is required Leave of court. amendment requires
Leave to amend “shall be freely granted when justice so requires. Rule 8(c): the failure to plead an affirmative defense ordinarily results in
the defense being waived. Litmus test for deciding if a defense is affirmative: Does your
defense require new facts to support it? Would the defense surprise P if pleaded at trial?
ii. The defense is an avoidance or excuse c. better to plead all defensive strategies. ii. Concept and Definition
. Anything not denied in the answer is deemed to be admitted b.
and material. D made motion. it would have eliminated any CoA (amendment would have prevented Z from proving his case at hand). Amendments & Relation Back (RB only applies when SoL has run)[R. Finding Prejudice b. Honest misleading statement. c. Has nothing to do with the trial court being right/wrong. Beeck (during discovery): Answer admitted mfr. If a party presents evidence at trial that goes to an issue not raised in the pleadings. Court did not allow D to deny control. Abuse of Discretion Standard
i. Amendments to Change Claims & Allegations i. 15(c)] a. to split the case into 2
issues—1) who manufactured the slide and 2) was there a defect. and after being filed. P still had some CoAs when/if amendment was allowed. Honest wrong statement. Amendment relates back if: • Claim arose from the same conduct transaction or occurrence as in the original pleading ii. Bifurcated Trial
i. iii. did it cause injury
ii. in Z. amendment to the case.a. Amendments to Change the Defendant
. Also. Compare Zielinski i. the Ds didn’t want the
jury to hear any evidence about the injuries to the P d. ii. Court allowed D to amend to deny mfr. then the plaintiff wants to amend the claim i. to allow amendment in Z. in pre-trial conference. Judge did not allow such a late. In Beeck. Additionally. Zielinski (pretrial conference): Answer denied control. B/c the case hinges on who made the slide. 15c treats amendment changing claims differently than those changing parties a. only an issue
of discretion 3. A claim is filed. b. the opposing party may object to the presentation of such evidence. the D made motion right before trial. which the court granted. the statute of limitations runs. How are these reconcilable? The controlling factor probably is the fact that the Z case involved the same insurance company (which failed in its diligence).
Each time one of these events happen. Factual contentions (and denials) have evidentiary support 3. Procedures for Imposing Sanctions a. No Improper Purpose c. and ii. Signature a. 11(b)(3)—factual basis must be made in pleadings 11(b)(4)—evidentiary basis for denials
a. Rule 11 Notes i. D received such notice of the action that it will not be prejudiced in defending on the merits. attorneys must sign all documents submitted to the court i. initially certified when signing. a reasonable basis for the position must exist. Applicability and Timing of the Certification
a. renewed “signature” every time you argue or present it b. Rule 11(b): When presenting to court (ie signing. Legal contentions are warranted by law (or reasonably supported by law) d. Separate Motion
. if Rule 15(c)(1)(B) is satisfied and if within the period provided by Rule 4(m) for serving the summons and complaint. filing. discovery has its own rules 2. Reasonable Inquiry (under the circumstances) b. D knew or should have known that the action would have been brought against it.”
• Ensuring Truthful Allegations
• FRCP 11 o o o o 11(b)(1)—attorney must have reasonable motivation for submitting a paper to the court 11(b)(2)—judged by an objective legal standard. but for a mistake concerning the party’s identity. submitting. the party to be brought in by the amendment: i. Requirements 1. you are re-certifying that the documents are true at that time 4.(1) “An amendment to a pleading relates back to the date of the original pleading when: (C) the amendment changes the party or the naming of the party against whom a claim is asserted. Certification a. or
Must be served 21 days before being filed with the Court (safe harbor period) a. Yonkers a. Law firm or Party i. 1. including attorney's fees. Violation by Plaintiff’s lawyer. up to court’s
discretion i.i. that is the end of the Rule 11 process
2. 1. If offending document is then fixed or withdrawn in 21 days. If warranted. Attorney. Safe Harbor Provision i. Application to Hadges v. Monetary sanctions may not be awarded against a represented party for frivolous legal arguments advanced by the party’s attorney. Sanctions
a. Violation by Plaintiff Hadges b. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). b. b. the court may award to the prevailing party
the reasonable expenses. incurred for the motion. The attorney could have monetary sanctions however 6. Allegedly improper assertion can be amended or recanted within 21 days after service 5. Kunstler
. Discretionary: court is not required to impose sanctions. Court may impose sanctions on its own initiative—to impose sanctions SUA SPONTE. it must enter an order describing the specific conduct that appears to violate subdivision b.
Timing & Sequence [26(d)] i. • Rule 26(b)(1): o Any non-privileged matter that is relevant to any party's claim or defense Very general and sweeping rule allowances. Scope & Limits of Discovery [R. Meeting & Discovery Plan [26(f)] i. Difference in state rules e. Duty to Supplement [26(e)] f.Discovery
A. Specialized Limits: 26(b)(3)&(4) c. Discretionary Limits: 26(b)(2) iii. 26(a)] b. Signatures & Certifications [26(g)] i. General Scope: 26(b)(1) ii. The Scope of Discovery: Relevance FRCP 26(a)—at certain stages in the litigation. Unique to federal rules g. you MUST provide certain documents without those documents being requested. Protective Orders [26(c)] d. 26(b)] i. as privileges (formal prohibitions) are a very small limitation Relevant information need not be admissible. Miniature Rule 11 Provision for discovery
. but must be calculated to lead to the discovery of admissible evidence 1. Required Disclosures & Methods of Discovery [R. What is the purpose of open discovery? • • • Preserve evidence Narrow the issues Obtain evidence
B. Rule 26: Core Provisions a.
Rules 30-36: Rules that indicate how to requires parties to provide discovery information a. If I serve that request. less burdensome. Provides mechanism for discovery disputes What is the practical sequence of discovery amongst litigants? a. (C) When Required. Discovery Methods and Procedures e.Limitations on Discovery a. Rule 37: How the court controls or enforces the discovery process if necessary a. the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: i. Limits on Discovery 1. General Scope of Discovery: Relevance b. Then party may file various Discovery Requests c. (A) When Permitted. or can be obtained from some other source that is more convenient. (B) Specific Limitations on Electronically Stored Information. By order. If you object/ignore. Burden and Proportionality 2. Requires sanctions if violated 2. Start with disclosure (in federal court) b. ii. Specialized Limits (Privilege. (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action. or
. the court may [limit] the number of depositions and interrogatories . you can 1) Comply 2) Object or 3) Not Respond d. On motion or on its own. 4. General Discretionary Limits on Discovery c. What is “our” sequence (class sequence)? a. Interrogatories to medical exams 3. Work Product and Experts) d. c. (i) the discovery sought is unreasonably cumulative or duplicative. Rule 26(b)(2). I can then 1) withdraw my request or 2) file a Motion to Compel 5. b. or less expensive. Judicial Enforcement and Control D.ii.
It gives the court discretion as to IF they allow discovery. Duplication i. since the info is used identically b. Lists limiting options too Does much of the same thing that 26(b)(2)(C) does i. Court said Gov't didn't need both. Non-monetary Burden. Limits unreasonably duplicative discovery. Relevance. 4. ii. Most courts tend toward allowing production. embarrassment. or undue burden or expense. too bad. Monetary Burden. 3.iii. oppression. Application in Gonzalez v. . not as stringent as it might be read. ii. Search queries are used to get URLs. 5. Burden or expense of discovery outweighs benefits
c. for good cause. Information is Cumulative and Duplicative: 1. The court may. Must really prove unreasonableness Prior opportunity i. . b. Courts have erred on the side of the liberal interpretation—if the discovery is problematic. Rule 26(b) is brand new. embarrassment. they were put in at different times. Frankly. the importance of the issues at stake in the action. protect a party or person from annoyance. Rule 26 (c). b. Production of URLS (not queries) under protective order c. or they can “regulate” it iii. considering the needs of the case. issue an order to protect a party or person from annoyance. 6. the parties' resources. (1) In General. we want the info. Relatively recent addition. Why do we have both rules. including [listed limiting orders].Protective Orders a. but courts have always done a balancing test of use v. oppression. unless the producing party can show it would be devastating in some way 7. or undue burden i. cost Courts will lean in direction of allowing discovery unless faced with persuasive proof 26(C): Protecting Orders Available a. . the amount in controversy. 26(b)(2)(C): a. (iii) the burden or expense of the proposed discovery outweighs its likely benefit. and the importance of the discovery in resolving the issues. A party or any person from whom discovery is sought may move for a protective order . which then are treated just like the plain URLs 2. a. Google. which are seemingly duplicative?
not queries because queries could have personally identifying information. where there is no risk of that with plain URLs 8. There were many forms in which the relevant data was stored d. In civil actions. Rule 501 dictates privileged material: i. ii. Production of ESI That is Not Reasonably Accessible: Court may order production upon showing of “good cause. Every email that had Zubulake's name on in it What burdens did UBS allege that pointed against having to produce 1. Society values the relationships protected by privileges and prioritizes free communication in the context of these relationships more than the contribution such information could make to improved accuracy of litigation b. and are relatively new (2006) i.000 2. Limits in ESI are very similar to the 26(b)(2)(c) restrictions and balancing test. The Zubulake case took place before the rules were introduced. Privilege—info is discoverable if relevant and not privileged a.” b.” ii. Why are certain privileges against disclosure recognized in the US system? i. Why do we have this? Society values relationship protection
. privileged material is established by the judicial interpretation of the common law ii. Initial Production: Not required if ESI deemed by producing party to be “not reasonably accessible because of undue burden or cost. Unless otherwise provided by the constitution. Court decided that gov't could have URLs. Zubulake v. and so applies the general balancing tests and is useful for that 9. Attorney-Client Privilege i. privilege is determined in accordance with state law c. Rule 26(b)(2)(B) i.3. There is very little case law an decisions that addressed these new rules c. iii. UBS i. Cost of retrieving backup data was alleged to be $300. Electronic Discovery a. What was the discovery request? 1. Upon Motion: Production required unless the producing party shows the ESI is not reasonably accessible.
ii. Asserting Privilege and Work-Product Protection i. Tug Sank. documents and tangible things that 2. private memos and personal recollections of adverse party's counsel in course of his legal duties is outside the arena of discovery. Without purported necessity or justification. Not for the commitment of a crime or tort 6. Although the FRCP exclude privileged and work-product protected materials form the scope of discovery. responding parties are obliged to indicate the material that is being withheld based on assertions of privilege or work-product protection in a privilege log. a. are prepared in anticipation of litigation 3. Minority View: docs are protected by work-product privilege if they are prepared “primarily or exclusively to assist in litigation” g. lawyer interview survivors. by or for another party (not requesting party). And the privilege was claimed and not waived iii. ii. Client/attorney 2. written statements. If the court orders production of such materials it must protect against disclosure e. The Meaning of “In Anticipation of Litigation” i.ii. i. Hickman V. Party shows that it has substantial need for the material and cannot without undue hardship. For the purpose of acquiring an opinion of law or other legal service 5. Albert alleges that B intentionally drover her car into his
. One requested any statements by crew of tug iii. They are otherwise discoverable under 26(b)(1) 2. Taylor i. b. Materials may be discovered if: 1. Hypos: A/C privilege Hypos i. Elements of client-attorney privilege 1. h. FRCP 26(b)(3): Work Product i. Interrogatories were sent to tug owners. Communication that relates to a fact that he was informed of by his client 3. a party may not discover 1. Majority View: if the docs are “prepared BECAUSE of litigation” ii. Without the presence of strangers 4. f. Ordinarily. Basically we extend the evidentiary requirements under FRCP 26(b)(1) to discoverable attorney/client privilege d. obtain equivalent info ii.
the VP) creating a document prepared “b/c of litigation” is not discoverable. a. Is this relevant? Yes. On the basis of privilege? In a civil action. why would you have to plead the 5th? c. i. not b/c of litigation. post-investigation report is surely relevant. A’ lawyer asks B. As set forth in Rule 26(b)(3).ii. though u can still plead the 5th. b.
d. Reports to the state public service comm’n and ICC pursuant to regulations. Is this privileged? No c. Hypo 2-Same facts but A alleges intentional infliction of emotional distress B denies causation B’s lawyer plans to argue that A has been emotionally unstable for years B learns A has been in psychotherapy for some time
May B’s lawyer ask about the psychotherapy? Relevant? Certainly Privileged? Yes. Is this privileged? No ii. Not a good idea to plead the 5th bc the jury then wonders. In a depo. 2. Is this relevant? Yes. Is this work product? These documents are required by ICC regulations. so this cannot possibly be work product. but because A bases her defense on her emotional state. May B object on the basis of relevance? v. you do not have the right to NOT take the stand. B denies liability iii. documentary materials prepared in anticipation of litigation or for trial by or for another party or that party’s representatives are protected from discovery (work product) unless the requesting party can show a substantial need for the materials and is unable to get this information by any other means. any party representative (here. But here there is a debate as to whether this report is “b/c of litigation”. Is this work product? Even though non-lawyer. “Did you intentionally collide with Albert?” iv. b. she has “opened the door” to B’s investigation as to the cause of the emotional distress and thus A waives her privilege of doctor/patient privilege. Written report to B’s board of directors prepared by a VP of B
. Bus Crash Hypo Bus owned by B Bus Co hits P and P sues B for injuries P seeks the following in discovery a. this document arguably was not prepared b/c of litigation.
Experts: Experts and Discovery of Information
. As in Hicks. Not discoverable as work product. (Hicks) Rule 26(b)—courts want to protect against bias. Is it privileged? No Discoverable.”
Responding parties are obliged to indicate the material that is being withheld based on assertions of privilege or work-product. Work-product only covers “documents or tangible things. this is not a tangible “thing.” This is essentially the same as an identity request. 4. this would require that the lawyer to recall from memory the information and transcribe/create the information. . Identity of an eye-witness that B’s attorney discovered through spending 10k in investigation Is it relevant? Yes. any party or other person may. Not discoverable as work-product. opinion in discovery. obtain the person’s own previous statements about the action or its subject matter Rule 26(b)(3)(C) What B told the investigator? No.Boris was injured in accident with C. Rule 26(b)(5) Parties cannot withhold FACTS (key distinction of work product) Work Product protects what the lawyer does with those facts. Written statement of driver and passenger taken by B’s attorney immediately after the accident a.C’s insurance investigator visited B in the hospital. While it is likely that P can show a “substantial need” for info from a witness to the accident. P can get the same information by deposing the witness. Written statement of witness taken by B’s attorney 9 months after the accident (Witness will not speak to plaintiff’s attorney) a. the driver and passenger are available for a similar statement to P if P so wishes to conduct it. Again. on request and without the required showing. but it does not protect the info in and of itself. . 5.3. 10.B cannot recall details about the visit May B’s attorney discover Whether B gave a statement? Yes. A copy of any such statement? Yes. Practice Tip: “Tell me anybody you are aware of who might have any admissible information”
e. legal conclusion. Hospital Statement Hypo . this is a FACT.
Anything written down would probably be work product and protected ii. Non-witness experts are generally not subject to discovery (discovery is very hard for this type of expert) because of Rule 26(b)(4)(B) 1. How long will the P suffer from these injuries? You could retain the doctor for consultation or testimony. treating doctor chosen for trial is not Personal injury case—plaintiff will hire a doctor to interpret the causation of the injuries.
. Expert witnesses are also subject to depositions ii. If the expert learned facts and opinions outside of trial prep. Also. b. Certain expert testimony is allowed to testify about an expert opinion (despite fact that opinion testimony is generally not allowed) i. qualifications. This says that trial prep experts can only be discoverable if meets Rule 35(b) (very substantial need without other means of getting info) iii. The Rule requires the disclosure of the identity of any experts the party plans to call as a witness. 2. Judge must rule that the expert’s testimony will help a jury reach a conclusion f. g. his information is discoverable Ex: ER doctor discoverable. Expert must be qualified in that field iii. c. The rule treats testifying experts differently than non-testifying (trial prep) experts 1. Must show expert is qualified to be giving an opinion. their opinions and findings are relevant d. and that the expert testimony/opinion helps the jury understand the case Experts are also retained to help with trial preparation Whether expert is retained as a witness or for prep. and whether this causation stemmed from the car accident. Prohibition is only applied to experts who learned the relevant facts and developed their opinions for purposes of litigation 1. P lawyer could also hire an economist—P cant use his legs. Experts Qualify i.a. are they discoverable? e. along with a report of the expert detailing: a. data or info considered. Rule 26(a)(2) answers this question i. Expected testimony. But opinions are not work product. experience as a witness ad compensation 2. the experts may not be covered by privilege (doctor retained for evaluating plaintiff does not have doctor-patient relationship) i. how will this affect his future earning potential (lost income) and how long he has to live. including basis for opinions. Expert must be in an accepted field ii.
Assuming John’s lawyer plans to call Dr. her qualifications. K regarding the treatment John’s lawyer has Dr. K is a WITNESS to the initial scene of J’s injuries. and writes down opinions. the basis for her opinions. this document by doctor is probably work product. and his documents are protected under The prohibition on discovery of non-testifying experts applies only to experts who
back. who later operates on J’s o o • o John sues M for his injuries. and the Dr’s opinion. W? No. W but not Dr. the data or other info “considered” in forming those opinions. a consulting expert may not be deposed. and level of compensation to be received for serving as a witness in the present case. If J asserts doc/patient privilege. John’s lawyer interviews Dr. experience as an expert witness. Mary should argue that the privilege was waived when J’s lawyer consulted with a third-party expert.
Doctor/Patient privilege only applies if the P had gone to the doctor to be examined for treatment of an ailment. What info should be in John’s FRCP 26(a)(2) expert witness disclosures? “any [ALL] material that serves as a basis for [expert’s] opinion must be disclosed” o Must Dr. K:
work-product. this is not privileged. who learned about the subject facts in anticipation of litigation and formed an opinion after learning those facts. If the physician examines you. W prepare written report? Yes. • Discovery of Info from Experts: Multiple Doctor Hypo o P is injured in an auto accident and sues D
. He is examined by Dr. Dr. K.
--------------------------------------------------------------------------------------------------------Doctor Hypos • John is injured in a car accident with Mary. Welby examine john and provide his opinion.h. • Assuming J’s lawyer does NOT plan on calling Dr. W o o o May Mary depose or otherwise discover anything from Dr. Even though John’s lawyer does not plan to call Dr. If P goes for assistance in litigation. Rule 26(b)(4)(B) were retained originally for litigation. o May Mary depose either doctor? Both. K as a witness. Rule 26(a)(2) requires the expert to prepare a report detailing her expected testimony. presumably about “privileged” material.
What is the policy behind not allowing that information? o o o o
before trial. since he will be testifying Considered non-testifying experts. you are then likely to settle the case (for a much lesser value now). The names and address of witnesses that parties plan to use to support their case
. and if you go to trial. summary judgment to be completed. you probably will have to disclose identities. Discovery Devices a. [Rule 26 (f)] (few states have this) Scheduling Order—sets forth a time period for discovery. good or bad. consult. Discovery Conference —lawyers meet to discuss matters.
E. parties are free to consult. b. made it to trial We want people to use experts because it helps the jury We want to encourage parties to investigate. you wouldn’t get an expert. and you knew that if you got an opinion from a dr you had to turn it over to the other side. but if the opposing party asks. [Rule 16(b)] Rule 26(a): Initial Disclosures: Required Disclosures (Most States courts do NOT have required disclosures) i. o Jury will never learn about the 9 out of ten doctors that said nothing was wrong People would never use an expert if all opinions. the conference can limit costs.you are NOT required to turn over the identities on initial disclosure. time. When they do. • Does the lawyer have to disclose the identities of 1-9? o This is a bit of a grey area--. Knowing this. since they are not going to be testifying because The opinions from the 9 doctors are probably not discoverable without rare
What is obtainable from #10? What about the other 9? the plaintiff doesn't like their opinion circumstancesWhy do we do this?? Because if you were a lawyer wanting an expert opinion. If done well. depending on jurisdiction. other side will likely find these other doctors. report. opinions. Sets a trial date. you will have a rough day in court. if those 9 docs have opinions than controverted that of YOUR expert.o
P’s attorney has doctor after doctor examine P The first 9 say P has no injury Doctor #10 says P has severe long-term injury
o • • o o o
P’s attorney plans to have only #10 testify Identity. get all the info you could Additionally. This way.
especially if in backup or hard to access formats or systems iii. FRCP 34(b). Rules provide a default for format if there is no agreement and the requesting does not specify its preference a. Accessibility Issues: a. Parties are explicitly instructed to discuss any issues about disclosure or discovery of electronically stored info. ESI. Form of Production i. Metadata
. ii. any insurance agreement that may cover a judgment rendered v. 2.
1. usually during discovery conference 1. FRCP 26(f)(3)(c). Documents or Electronic info or Tangible things
ii. Any party who is dissatisfied with the form of production requested or supplied may petition the court for an order resolving the matter. don't have to disclose initially ii. This is only important b/c word docs are very easily accessible (word search)
while PDFs are more difficult to access beyond just viewing. Discovery on a non-party: Requests to non-parties (R. (keep in mind: you don’t have to turn over stuff that HURTS your case unless they ask for it) 1. Several highly contentious issues for ESI:
1. Big issue as to whether documents must be in their original form (Word Doc in word format) or whether they can be produced in PDF or other format. actually obtaining the ESI raises its own problems. tangible things used to support YOUR claims. then requesting parties may specify the form in which they would like the info to be produced. but it is very easily quashed by simple writing of object 2. If not being used. A party may serve on any other party a request w/in the scope of Rule 26(b) to produce 1. A computation of damages being claimed iv.1. including the form or forms in which it should be produced. If not being used. The form it is ordinarily maintained in or in a reasonably useable form iii. A copy of all documents. Requires subpoena. 45) 1. Then parties have to go to court to resolve e. ESI. don't have to disclose initially iii. Whether METADATA that accompanies ESI must be produced 3. and Thingsi. Timing: within 14 days after discovery conference d. The exact form in which responding parties must produce ESI 2. 3. For inspection. Tangible object iv. If they didn’t agree. Rule 34: Production of Documents.
A party may send interrogatories that the receiving party must answer “under oath” FRCP 33(a)(1) 1. their lawyers do 1. a responding party has an obligation to produce the metadata if it meets the relevance standard of Rule 26(b)(1).1. tracking. The format for depositions mirrors the format of witness examinations during a trial. Rule 30: Depositions i. Party has to respond with written answers 1. Depositions/interviews would be better vi.
. Interrogatories are inexpensive ways to get answers but are often expensive to answer for the other party g. Parties cannot respond with "I don't know" unless there has been a reasonable inquiry into the question and the information really cannot be found 2. The parties do not answer interrogatories. Parties are limited to 25 questions unless court gives permission to ask more FRCP 33(a)(1) iii. Therefore interrogatories are good for getting discrete objective information 2. Metadata can be useful in tracking the manipulation of docs. If it is just as easy from the requesting party to get the information from the other party's business records as it is for that other party. Important point: issues on metadata discoverability determinations should not be made by responding parties without informing their adversaries and the court f. If the info is relevant. except no judge is present. which may be a concern in instances where there is some question as to the authenticity or integrity of documents 3. or management of an electronic file” and indicates that it “is usually not apparent to the reader viewing a hard copy or screen image” FRCP 26(f) 2. work product. the responding party can give the information to the requesting party to figure it out themselves iv. iv. “info describing the history. Rule 33: Interrogatories i. Interrogatories may not be sent to non-parties ii. etc v. But if the info is somewhat subjective or opinion it is not as good because of the lawyer writing it a. Privilege. A party can object to a question on the same grounds as other discovery request 1.
Written deposition 1. If the matter can be “cured”. Procedures: “Noticing” a Deposition [R. Then the questions are read to the witness who answers the question a.
iii. 30 (b)(1)]
i. To enforce a court ordered limitation on discovery
. Some objections you must raise at the deposition. Other objections are preserved a. Conduct an examination of the witness as would be done in court. To preserve a privilege ii. outside of court 2. objecting counsel may simply permit the questioning to go forward. If party has objection. with both lawyers usually present and recorded by a court reporter. a. iv. Therefore these are not used often h.1. the name and
address of each person to be examined. If you want to take a depo of a non-party. and the method by which the examination will be recorded 1. may ask for the question to be rephrased. or you will have waived them. This is allowed. but
also you must subpoena the non-parties. The notice must state the time and place of taking the depo. but only for one of THREE reasons i. you again serve a notice on all parties. ii. Rule 45 requires subpoenas to be served in person on the person to be deposed. Objections 1. Instructing a Witness Not To Answer a. Only questions submitted may be asked. Must provide notice to opposing party that you intend to take depo of X client. and no follow up questions are allowed 3. Depos are limited to one day of seven hours unless otherwise specified by the court FRCP 30(d)(1). 2. ii. but is often not done by party's own lawyer because they want their own information out of the deposition iii. 2. All parties have the right to cross examination the witness. Oral Depositions 1. Can also use various ways to record it in addition to the court reporter 3. Must also specify the documents to be produced. you must object it. or may direct the deponent not to respond to the question. Objections that cannot be cured 3. Very similar except that the questions are submitted in writing ahead of time by all interested parties 2.
Uses Before Trial 1. Rule 36: Requests for Admission i. Uses at Trial 1. But they are hugely expensive vii. The party seeking examination must demonstrate “good cause” iv. makes responding properly very. Anything other than a denial (including non-response)is presumed to be an admission 1. The rule provides that if counsel thinks the depo is being taken in bad faith. the court will grant an amendment for the answering party to change his/ her answer. Can only be served on parties ii. The deponent or a party may request a copy of the deposition vi. Very strong discovery device. Anything admitted cannot be contested in court.iii. Evaluating witnesses and preparing for cross examination and impeachment 4. Person to be examined must be a “party” ii. Perpetuate testimony 2. v. Effect of Admission 1. The party’s physical/ mental condition must be “in controversy” iii. Depos can be used as actual evidence at trial to impeach deponent 2. though. Gathering information 3. Becomes a stipulation. k. Depos can be used if witness is unavailable Rule 35: Physical or Medical Examination i. AND you can only get a physical/mental exam of a party in the case. Most of the time. i. j. This motion is unlike any other device because Rule 35 exams are allowed ONLY on court order. the written record of the first admission will be preserved for impeachment or otherwise. 2. Depositions are very useful because they allow gathering information that normally would not be discovered before trial a. This is seldom used. 3. very important iv. See Required Initial Disclosure Hypos and Discovery Hypos in Notes
. If admitted. Even with an amendment. To present a motion under Rule 30(d)(3)—motion to terminate or limit the deposition. Serve on a party a discrete list of statements which they have to admit or deny 1. counsel can terminate or limit the depo. that point is deemed established for the case. Can only say do not have enough info if you have reasonably investigated iii.
One of the most common ways is over-discovery Stonewalling is another way to abuse discovery Providing ALL relevant information in order to inundate
b. Limit what is discoverable by other side If discovery is annoying. Compel other side to provide discovery materials a. and creates opportunity and incentive to abuse discovery 1. Certification of Conference require if cannot work out differences c. especially with smaller cases that don’t have tons of documents. Rule 37(a): Motion to Compel 1. This actually works quite often 2. Discovery Devices and Rules are there to theoretically allow the parties to go through the discovery process without involving the court 1. Before filing these motions.----------------------------------------------------
F. But discovery disputes do occur very frequently 1. Order Regulating Discovery 1. witnesses and or experts ii. must make a good faith effort to work out the differences with the discovery requests 1. burdensome. rulings on objections ii. When response to discovery is inadequate c. Rule 26(c): Motion for Protective Order 1. To overcome an objection to a discovery request ii. Limiting--. This leads to tensions in the process. 2. “you must answer these interrogatories.“depos will be written testimony. produce these documents” 2. This does happen. 2. This is partly because lawyers are obligated to represent their clients in an adversarial manner while at the same time cooperating with opposing counsel and providing information for discovery iii. Discovery Disputes and Enforcement Mechanisms a. Order Compelling Discovery Response 1. Nature of Discovery Disputes i. 3. Remedies Available i. not oral”
. When other side ignores discovery requests b. Available Motions—may award cost and fees to victorious party i. or unduly expensive
the discovery process works a little better. Don't want to irritate the trial judge with bad discovery antics Discovery disputes in state court are heard by whatever judge is available so bad practices won't matter as much during the trial
. Textron a. ii. Failure to disclose b. Penalties BEYOND costs and fees. the others usually lead to an order rather than sanctions) 4. Award of Costs and Fees
1. The court may decide NOT to award if the losing party was substantially justified in filing the motion (unusual circumstances) iv. because the judge is assigned to the case from first filings through the trial i. Sanctions have to do with the merits of the case
a. but stopped short of sanctions that went to the merit of the case 1.2. Textron didn't in good faith participate in discovery 1. Failure to attend one's own deposition c. ii. but these sanctions are available for: a. Poole case illustrates the courts uses of discussing costs and fees and imposition of sanctions in a fairly typical manner i. The court MUST award costs AND attorneys fees by the PREVAILING
party incurred by preparing a motion to compel or motion to protective order UNLESS circumstances are unusual Rule 37(a)(5) 2. Issue order preventing certain information from being used as evidence
2. In federal court. the court can enter a default judgment
c. Occasionally the court will ask to look at the documents. Failure to compel with order of the court (mostly just this one. Failure to respond to a discovery request d. but inadequately The court therefore imposed costs and fees. Responded. Poole v. Likely because they did respond. Sanctions
1. iii. b. who was at fault and whether sanctions as to the merits were appropriate c. however poorly Court had to decide. before an presentation of evidence. In extreme cases. Courts use these powers VERY SPARINGLY (don't want to mess with merits of case based on bad practices). Court can decide issues against a party (light is now considered GREEN)
Entering a Default Judgment a. on the plaintiff's request. FRCP 55: Default. the clerk must enter the party's default 2. Default Judgment [R. When can a clerk enter a judgment? When can a clerk NOT. Involuntary Dismissal (R. Can do once. must enter judgment for that amount b. any times subsequent will be dismissed with prejudice (barring further claims) ii. and the court must enter the judgment? Read rule 55 b. Loss for Inaction i. Procedures a. One time only is without prejudice. the party must apply for the default judgment. By the Court: in all other cases. Default Judgment 1. Motion for judgment a.14/04/2010 22:43:00
A. by notice prior to defendant's answer 1. basically procedural
. improper venue. 41(b)) (if the plaintiff does nothing after filing. 55] 1. improper service. Entering a Default a. Termination Without Reaching the Merits (Defaults and Dismissal) a. You then ask the court to enter a judgment for default. does not prosecute case) i. Can also be used for failure to comply with court order matters c. improper jurisdiction. Voluntary Dimissal (R. Also. When can the D be given for time to respond? Read rule 55 ii. They are then in default. By the Clerk: if the plaintiff's claim is for a sum certain or one that can be computed. A default judgment may be entered against a minor or incompetent only if represented by a general guardian who has appeared. the clerk. 2. Entry of default a. Most common: serve a summons and complaint. When a party against whom judgment for affirmative relief is sought has failed to plead or otherwise defend the case. If the party against whom a default judgment is sought has appeared. D doesn’t answer or respond. Plaintiff must enter this motion to officially notify the court of the Ds lack of response 3. 41(a)) i. that party must be served with written notice of the application at least 3 days before the hearing b.
ii. Gives parties control (which they give up in adjudication. II. Settlement and ADR a. Tends to be with prejudice. iii. 55. No stuck with just money changes hands There are very few goals that are outright impossible to achieve in voluntary solutions. Participate in judicial process ii. Negotiation b. to avoid getting a case assigned to a certain judge a. Solutions can be tailored to parties' needs Then refile and hope for a better judicial assignment Why would a party withdraw so quickly?
. Early Neutral Evaluation Obtain precedent that is binding on third parties Demonstrate to third parties how "mean" or tough you are (never settle policy) iv. 41) iii. Devise private solution voluntarily (Settlement/ADR) b. 1. Accept defeat (R. Settlement Processes a. 2. Reduces or eliminates risk Flexible Outcomes and Solutions (Most judicial judgments are win/lose monetary compensations) 1. to lawyers. unless court order says otherwise Don't want to fight jurisdictional claims More commonly. Advantages of Voluntary Solutions (Voluntary solutions are generally better than anything a court can do or impose) i. jury) ii. R. in federal court. iii. C. Mediation (negotiation overseen by a neutral third party) c. 1. judge. B. Our system requires a party to either : i. By agreement of parties (stipulation) or court order 1. b. 2. but does depends on what the parties want and can agree to Goals that ARE impossible: a.
based on his experience. Mini-Trial i. some clients handle trial/suits better than others iv. legal fees. Time value of money 1. requires consideration of i. Risk of losing or obtaining less than optimal judgment v. gives an opinion on the likely outcome of the case if it goes to trial d. This can lead the parties to negotiate a resolution. But the evidence is given to the CEOs of the involved companies D. The jury then makes a decision. but property (not liquid) iii. Summary Jury Trial i. Non-Binding Arbitration i. maybe a key witness. corporate entities ii. done in summary fashion. 1. expert. 1. Usually limited to fairly large trials. This is seen more in complex litigation. e. may not get a check. similar to summary jury trials 1. Settlement Value= BATNA (Best Alternative to a Negotiated Agreement) a. 1. Jury trial which is NON-BINDING. Lawyers give a summary of evidence. iii. Local lawyer. Similar to SJT. “semi-binding”—the arbitration award will hold unless the party affirmatively requests to advance to trial f. present a BRIEF case to the trial. Cost of obtaining & collecting (or opposing) judgment
. evaluates the parties case and. not exact. My best alternative is going to trial—so we gauge what we’re willing to agree to: is what we agree to better than what I can get in trial? b. The sides summarize the evidence. Actually measuring BATNA is tricky.i. very short ii. Individual needs & values
ii. call ONE key witness. Assessment of likely outcome in judicial system 1. This is what lawyers do Costs of getting the judgment. Value of money reduced over time How likely is an adverse or not optimal judgment Clients needs matter.
use relaxed rules Can go to court to enforce this Subpoena power is enforced (by state and federal statutes) iv. Egregious flaws in process (clear bias. but a process to achieve the outcome 1. etc) iii. Always consensual at some level 1. Arbitration award is generally binding. but unusual. Don’t agree on the outcome. Nature and Definition i. and there is very little room for appeal Courts can set aside an award for very limited reasons a. clause in a contract (buying a car) Sometimes have a post dispute agreement. iii. Similar to settlement. but in the end it is up to the parties Evidentiary hearings look like a bench trial a.2. Jams. 1. Either pick a person or process by which a person is selected Provides for VERY limited discovery. jury) for a BINDING resolution ii. Usual practice is that the contract adopts a process and procedures used by one of the existing arbitration groups (AAA. parties don't want to go to trial Parties might set out details. Parties establish the procedures (because they agree to the process)
v. 2. a. An agreement by the parties to submit their dispute to a private arbitrator rather than a public decision maker (judge. 1. May be in the form a pre-dispute arbitration agreement. Characteristics i. the parties abide by a resolution outside of court. bribes)
. 3. Contractual agreement to the process b. E. Parties select the decision maker (or method of selection) 1. Binding Arbitration
Time suck into litigation may reduce productive value of clients time
a. 2. Usually resembles an informal trial ii. 1. But Rules of evidence usually don't apply.
allows for judgment on the merits if insufficient i. Does not look at evidence.2. Dismissal for Failure to State a Claim (Rule 12(6)(b)) a. Current Debate: Consumer and Employment Contracts 1. If not the court will allow the complaint to be amended to attempt to state a claim. Old view: if any complications in arbitration between either party. Enforcements of Agreements to Arbitrate i. (so the arbitration agreement is binding unless it is unconscionable. Examines the sufficiency of the allegations. but will dismiss on the merit if the plaintiff cannot amend with new facts that state a claim c. Judicial Treatment and the Federal Arbitration Act (FAA) 1. would the law allow for a remedy? i. So what do the courts do in this situation? a. Assuming everything in complaint is true. They perceive that trial would be more advantageous to them on this issue. How is this resolved? 2.’ The issue remains controversial. The FAA—“ an arbitration agreement shall be valid.
Parties have agreed on decision maker and courts hold parties to that
c. Are they enforceable? Law says ‘yes. If the facts are as the plaintiff states. based on fraud. save upon such grounds as exist at law or in equity for the revocation of any contract” i. and enforceable. the courts would hear the matter b. Example (forgetting consumer/employee contracts): we have begun arbitration and one party is not pleased with a particular issue’s handling.
1. irrevocable. etc) c. there is no claim stated for which relief can be granted i. What if one party doesn’t want to go forth with the arbitration (especially in
arbitration clauses within contracts). ONLY complaint 2. Nature of Issue
1. ii. and wish to cancel the arbitration. FAA applies to any arbitration agreement that is (1) in writing (2) evidencing a transaction involving interstate commerce iii. Judgment on the Pleadings (Rule 12(c))
. Purpose is to dismiss claims that are legally insufficient early in the process b.
Summary judgment is NOT proper when a rational juror could decide EITHER way based upon the evidence provided i. with who has the burden of proof at trial 1. even before an answer ii. “P told me she saw D sign the note”?
. you attach some sort of evidence to your MSJ c. But if the movant does not have the burden of proof. Timing i. they are filed after all or most of discovery has been completed iii. Often used when defendant uses an affirmative defense (like statute of limitations) which require the court to have the answer of the defendant i. Defendant has burden for any affirmative defenses d. Court ties who has the burden of proof for summary judgment. but used after the defendant has answered. ONLY at pleadings 3. Promissory Note Hypo: a.a. Can file a MSJ any time. If defendant does not have to provide evidence of causation. Plaintiff has burden of proof for establishing elements ii. What is the movant’s burden of proof? Non-movant’s? i. It is not enough to have evidence on both sides. That the moving party is entitled to judgment as a matter of law b. Provide evidence in support of SJ or Provide support by showing plaintiffs lack of evidence in pleadings and documents i. Summary Judgment a. it must be evidence such that a rational juror could go either way 4. and any affidavits show: i. Very similar to 12(b)(6). then it can EITHER a. the discovery and disclosure materials on file. b. then they DO have to provide evidence in support of SJ 1. What affidavits support P’s MSJ? i. why should if be different for summary judgment ii. and ii. If the movant has the burden of proof. Granted if the pleadings. Typically. Does not look at evidence. That there is no genuine issue as to any material fact. court looks at the complaint AND the answer b. Affidavit of P’s attorney stating. unless plaintiff does at trial. Most of the time.
etc. Remedy is the difference. This more an opinion or the lawyer’s conclusion. The courts apply a historical test as to whether a party can be given a jury trial: you are guaranteed a jury trial if you would’ve had a jury trial in 1791 (Would common law courts or equity courts have jurisdiction over your case?) 1. “A supporting or opposing affidavit must be made on personal knowledge. set out facts that would be admissible in evidence. Attach the note. no personal knowledge
2. Language here is important—limitations include “common law” and “preserved” ii. If you could show that money damages would not make me “whole”. Affidavit of P stating “I know the D signed the note”? 1. you could seek an injunction in an equity court. The basic divide between law and equity courts: damages= law court (jury). THE RIGHT TO TRIAL BY JURY SHALL BE PRESERVED i.
. iii. give background on P/D relationship. 7th Amendment.Right to a Jury Trial
b. IN SUITS AT COMMON LAW. injunction= equity (no jury). 2.1. Judicial Control of the Jury
a. trespass. 3. The tort has harmed me (currently seeking damages) and I want it stopped (desiring injunction). where the value in controversy shall exceed twenty dollars. and show that the affiant is competent to testify on the matters stated” ii. Inadmissible. What if the tort is ongoing? Nuisance. If P tells attorney she saw D sign the note. how should the attorney support the MSJ
Challenges for Cause i. (remainder is the petit jury) c. Kentucky Applies to both state and civil actions. it is NOT automatic 1. you will get a jury trial. If a juror has some bias or other situation that makes him unfit for being a juror ii. Court has discretion. they do not get a jury trial
a.iii. the other party has to articulate a non-race or gender reasons for striking that juror
. Forbids the use of peremptory challenges on the basis of race 1. and even civil litigants are part of a state action because state is so intimately involved with the process) 1. How do you know that the other party didn't dismiss for race or gender? Must file within 14 days of the last pleadings dealing with triable issues If a party does not file within the time frame. Leesville.courts gather a jury pool. There is much precedent dictating which causes of action will be granted 7th amendment rights. Procedural Requirements i. Federal statutes provide that the goal of our system is that the pool is randomly selected to provide a cross-section of the community. as such discrimination is forbidden by Constitution for state action (no discrimination by state actor. ii. Lets the court know your foundation for eliminating jurors (unlimited number). 6. Most courts err on the side of giving you a jury trial if so requested—if you bring actions in both equity and damages. 1991 i. Voir Dire: Then a random subset of those people is chosen to go into the court room (usually the number of people on a jury) and the judge/lawyers (depends on district/court) will conduct voir dire to see if these people are qualified to sit as a juror IN THAT CASE d.G. Jury pool is pared down by the clerk based on federal requirements. E. Where does your right to a jury trial come from in State court? i. i. Jury Selection a. Gender was prohibited in Batson v. b. c. Peremptory (limited number) e. Rules 38-39 require that a plaintiff file a demand for a jury in order to have a jury trial. and if the judge agrees. Edmonson v. You don't. but if there appears to be a pattern. Statutory laws granting similar provisions as in 7th amendment (“preserving” language) d. 1. you can bring this to
the judge. 2. The court will decide on the injunction AFTER the jury has rendered a verdict. 1st step.
Resolve the issue against the party. The court must draw all reasonable inferences in favor of the NON-MOVING PARTY. not for the judge. ii. Qualified to do job. What does the defendant then have to prove to avoid liability? (burden of production (not persuasion) switches) 1. i. and iii. Thus the judge can only look to evidence that supports P that is uncontradicted and unimpeached. Any other evidence that supports the employer’s case and that properly may be considered f. Replaced by younger person ii. g.
There is a question how important this is. The probative value of the proof that the employer’s explanation is false. JML may be made at any time before the case is submitted to the jury. non-discriminatory reason for discharge
. Discharge. Credibility determinations are for the jury. can be maintained or defeated only with a favorable finding on that issue c. d. When can JML first be filed? 1. and ii. Member of protected class (here. At close of plaintiff's case. Plaintff only has to prove by preponderance of the evidence (ever so slightly more likely) that the defendant was negligent (or whatever). older than statutory age). At close of all evidence. But it has to be tilted. The motion must specify the judgment sought and the law and fact that entitle the movant to judgment i. Rule for JML: i. What is the prima facie case the plaintiff must prove for unlawful firing? 1. Grant a motion for JML against the party on a claim or defense that. Depends on the strength of P’s prima facie case. the court may i. Reese v. In general. FRCP 50(a): JML b. defendant can file 2. ii. e. either party can file How is a JML decided?—no rational juror looking at this evidence could conclude in the other side’s favor i. under the controlling law. There was a legitimate.b. FRCP 50(a)—Judgment as a Matter of Law in a Jury Trial (formerly a direct verdict) a. as most lawyers can come up with a fairly valid reason for any dismissal other than race or gender
7. if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. and it may NOT make credibility determinations on weight the evidence. it cannot be equal. Sanderson Plumbing i.
3. 1. W saw incident and knows the car was a cab but cannot identify the company. 2. Legitimate reasons for discharge are pre-textual Real reason for discharge was age (can be inferred)
h. bu t will lose the verdict
P will su rvive D’s Motionfor J ML and win verdict
JML for P
Bu rdenof Persu ion as
Irrefu table Proof for P
JML for D
P will survive D’s Motionfor JML. JML for White Cab or does claim go to the jury?
Plaintiff. Facts: 1. to meet burden of persuasion. Burdens of Persuasion (what comes to mind first) 1. 4. 2. 2.
Taxicab Hype: P v. that party must produce some evidence from which a jury MIGHT find in its favor Affirmative defenses almost always put both the burden of persuasion and burden of production on the defendant
No Proof for P
iii. now must produce evidence (burden of production switches back): 1. Burden of Production 1. Almost always with the plaintiff/prosecutor To satisfy a party's burden of production on an issue. Clear and Convincing Evidence (heightened civil standard) 3. White owns 75% of the cabs in Provo. P injured in hit & run. Preponderance of the Evidence (most civil actions): more likely than not 2.iii. White Taxi Cab i. Provo has two cab companies whose cabs are distinguishable only by color of light on top (yellow & white). Exists where a party will lose without providing some evidence in its favor a. Beyond a Reasonable Doubt (criminal actions) ii. Strickland: No rational juror could decide on evidence that White cab was the hit and run cab ii. 3. Burden of production is on the party that would lose if the case stops at a certain point and doesn't go to jury i. Burdens of Proof i.
3 deaths per 10. . . What is purpose of JML? i. b. b. Facts in Evidence: 1.Avoid additional trial time. Is there a way for a rational juror to find for the defendant plant? 2. the evidence of the witness is inconclusive as to what cab was THE ONE in the accident No evidence can make a juror say it was a WHITE cab.a. Death inherent by-product of plant No other.Avoid jury charge & deliberation. Does case go to the jury or JML for D? 1. d. 2.
ii. probably not. 2. makes you think that someone didn't do a proper job Pure probability by itself is not enough for us to let jury make a decision (at least in most cases)
Uranium Plant Hypo i. . purposeful actions will kill people (statistically) i. Plaintiff has probably put on every bit of evidence science can come up
.Some efficiency: ii. c.But those savings often are minimal in comparison to the overall time and money spent.
Even though they have 75% market share. Occurrence of this cancer has increased in the town since construction of uranium plant: a. iv. then JML a. v.Avoid law-making by juries
e. With a 300% increase in cancer rates and testimony linking the discharges to that cancer. non-natural cause (unlike White or Yellow cab) with (unlike cab company or cab plaintiff) k. b. iii.000 people before plant was built 9 deaths per 10. more likely than not
The resistance to JML may stem from the limited evidence in this case. iii. 2. j. Decedent died of rare cancer. . If not then deny JML 1. This depends on if you trust these statistics but ALSO Expert testimony links plant and this cancer Huge increase. . 3. 3. Is there any way to find for D and NO RATIONAL WAY AT ALL to find for P? If there is no way to find for P.000 people after plant was built
Expert testimony links uranium plant discharges to increased incidence of this type of cancer.
Used rarely 3. Give the jury question that lead them through the facts to be found b. the court enters the judgment i. P’s Case in Chief iii. we would give them all evidence and let them sort through it. Deliberation x. D’s case in chief v. most common 2. Jury Instructions i. Tell the jury what the law is and what they need to decide. necessary 9. Jury gives verdict b. Can lead to situation where the verdict says one thing. P’s and D’s motion for JML vi.vi. Rules of Evidence: i. General Verdict Accompanied by Interrogatories a. New trial. Verdict b. re-deliberation. General verdicts a. .Trial Motions
. and how to apply that law to the facts ii. Also answer directed questions that lead them through the facts c. Closing Arguments viii. If we really trusted juries. Using those questions to determine fact. Post. Trial Issues a. Other devices of Judicial Control of Juries a. Rebuttal Evidence vii. Special Verdicts a. Traditional verdict. but don't trust them to sort it well or accurately ii. 8. Opening Statements ii. Jury Instructions/ Charge ix. and the interrogatories indicate another i. Bench trials don't apply the Rules of Evidence nearly as stringently as they are applied in jury trials b. Forms of Verdicts 1. D’s Motion for JML iv. Trial Sequence i.Only let jury decide the case if there is sufficient evidence for rational person applying the law to find for either Party.
but maybe they went outside facts of case. JNOV) 1. This is where a jury returns a verdict and a losing party asks court for renewed JML to give them the verdict instead of what the jury did 2. but grants a new trial instead of a new verdict 2. knowing:
i. Same timing as JNOV/renewed JML (loser of verdict makes motion). b. Prerequisite
ii. b. Trial judges are wary of granting JML before giving a case to the jury. Judge will often deny initial JML. Grounds: a. likewise sets aside the jury verdict. Grounds that the verdict is against the great weight of the evidence Even though everything went proper. because appeal is almost certain. Errors in the way the trial was run/handled (Errors in evidentiary ruling) ii. had outside help/info) Improper Verdict (more controversial) i. If JML is reversed. Renewed JML can be granted. Jury will probably do right thing. If not. they have to run trial all over again. iv. Improper trial i. just think the verdict was wrong
. If reversed on appeal. ii.
d. Same as JML. Motion for a New Trial 1. 4. Standard for Renewed JML a. Renewed JML (Judgment Notwithstanding the Verdict. iii.i. ii. Use a. a. the court can just reinstate the jury verdict. no rational jury could find for non-moving party Cannot file a new JML motion after verdict. can only RENEW a motion that was made BEFORE the case went to the jury 3. and if granted. Erroneous jury instruction Attorney misconduct (said something during closing arguments) Jury misconduct (hard to prove.
Claim Preclusion a. many states view this as final. Appellate Scope of Review: i. a.
Dadurian is an example of this
Additur is unconstitutional in fed courts. De novo: pure matters are law (Least deferential) ii. Deferential) iii. Additur and Remittitur 1. and even rarer are they granted by the court 2. b. If on appeal. Abuse of discretion (Only if judge went way outside reasonable decision. nothing left to do but execute judgment 1.
Remittitur: when court gives winning plaintiff an option a. iii. Elements c. Most deferential) 1. or a new trial (happens when court feels award is too high) Remittur is available in all fed and state courts
iv. but available in other states. Plaintiffs may be precluded from asserting claims because of a previous assertion of the same claim (or one that is sufficiently related). Motions for relief from a judgment (FRCP 60) 1. unavailable in Alabama. the question of the scope of its preclusive effect arises a. These last two let trial court decision stand even if appeals court disagrees with decision Preclusion Doctrine 1. Clear error (Only obvious errors of judge can be overturned. b. from relitigating the claims or issues raised in the prior action 2. or other persons. Rare and difficult to prove c. The preclusive effect of a judgment refers to the extent to which a judgment prevents parties to the action that resulted in the judgment.1. Final Judgment i. Once a final judgment has been obtained. Very seldom see these asserted by a party. Asks losing party to accept higher damages if award seems too low
2. The claim is resolved. accept a lower judgment. but some do not
that the facts plaintiff has aren't going to be addressed by the law Dismissal for Lack of PJ (not on merits. 3. 2.
Judgment on the Merits i. then sue for battery) Minority: Identity for Evidence Test 1. Conclusive effect of a prior judgment may on be invoked against the exact same parties. Majority: Transactional Test (Nestor uses) 1. ii. Verdict following jury trial (OK) Directed Verdict. Two claims are deemed to be the same claim if they arise from the same nucleus of operative fact. as a policy matter. we want to enforce and not allow to be avoided
e. Privity is extraordinarily hard to establish. JML (OK) Summary Judgment (OK) Dismissal for failure to state a claim (OK) a. same transactional occurrence a. 6. Same Claim i. get judgment. f. Two claims are the same if the evidence required to prove first claim is exactly enough to prove second claim If any additional evidence is required. 2. Fairly broad bar (can sue for assault. ii. property damage vs. personal injury)
Same Parties (or Privity) i. no preclusion) Dismissal for Defiance of Discovery Orders (OK) a. Decision based on facts and law.e. Applying preclusion enforces sanctions of court. party had their chance and failed to proceeding accordingly Basically on the merits includes decisions that. or a privity to a party ii. then claim preclusion not applicable a. Nonparty who succeeded a property interest Nonparty who controlled the previous suit
. Decision of law. 5. 4. only three exceptions to bind nonparty (which are not often) 1. (i.d. but case law includes other as well 1. 2.
The federal standard applied is a federal common law standard that is virtually identical to the version of claim preclusion present among the states 1.
Nonparty whose interests were adequately represented in prior suit
g. The effect of dismissals in non-diversity actions is that federal law applies iii. The point of Semtek is that what ultimately determines the preclusive effect of a dismissal is not the label placed on the dismissal by FRCP 41(b).3. jury verdict Same claim? a. 2. The Supreme Court has stated that the dismissal of failure to state a claim under 12(b)(6) is a judgment on the merits 3. if it applied? (evidence of wrongful conduct the same. not Shelby) evidence test wouldn't preclude because of this new evidence 4. Semtek addressed the preclusive effect of dismissals in federal diversity cases 1. Second case: B&F sued Wanda for the exact same claims that Shelby did iii. Issue Preclusion
. Lockheed Martin i. must show Shelby had an obligation to look out for B&F. judgment rendered On the merits? Yes. b. Evidence test. Is action #2 barred? 1. but B&F will have to prove it affected B&F. Need more evidence than parallel interests. was there privity or a legal relationship? Wanda allegations for "same party" i. Same parties NO a. Arises from the very same allegedly wrongful conduct that the Shelby case relied on (transactional test) b. First case: Shelby sued Wanda for anti-trust violations 1. 3. which was not the case h. both parties had same lawyers ii. Interests not represented adequately by first case 1. Application under Benson i. No evidence that B&F had authority to call the shots in the Shelby case even though Ford testified for Shelby at trial. Not identical parties. but rather the underlying basis for the dismissal ii. Semtek v. Final judgment? Yes. Wanda won judgment ii.
Reasons for Allowing Defensive Non-Mutual Issue Preclusion a. Issue Actually Litigated and Decided 1. so the plaintiff can “piggy back” on a prior case and get an easy judgment 2. Traditional Rule.Party sought to be bound by prior action must have been a party to the prior action. 2. 1. suing everyone one an winning some. Promotes use of joinder by plaintiff in their initial action c. Concerns Arising from Offensive Non-Mutual Issue Preclusion: a. Issue Preclusion Rule: Issue may not relitigated if: i. Where a plaintiff seeks to prevent a defendant from litigating the issue. b. Defensive Non-Mutual Issue Preclusion Always Allowed in Federal Court (Blonder-Tongue) 1. Final Judgment (does not have to be on the merits) iii. Plaintiffs may be precluded from relitigating issues they previously litigated to decision. Issue preclusion bars relitigation of a particular issue that has been previously litigated and decided in other action c. Offensive Non-Mutual Issue Preclusion allowed in Federal Court only where plaintiff did not have an opportunity to join and use of issue preclusion would not be unfair to defendant (up to trial court to decide) (Parklane) 1. Efficiency: Incentives to join or not join all claims in the first action. losing others ii. Efficiency. precisely ii. Issue must be the exact same issue. The prior action involved the same parties (mutuality of estoppel). Makes courts look bad if plaintiffs can go around suing people. A party can never be bound by a prior action if it was not a party. i. Determination ESSENTIAL to the Judgment 1.a. encourages second plaintiff to “wait and see”
. repeatedly d. Use of Issue Preclusion i. b. Eliminates "gambling" by plaintiff. shouldn't let plaintiffs who have lost go around suing people on matters they have already lost. Universal Rule.No issue preclusion unless both parties are in each action d. Means that if the issue was determined differently the case outcome would have changed iv. winning some and losing others. Where defendant raises issue preclusion against a plaintiff that has previously litigated the issue 2.
Therefore. because the crim burden of proof is higher.b. The different burdens of proof between crim and civil court creates a different issue Guilty beyond a reasonable doubt v. guilty by a preponderance of the evidence The issue must be IDENTICAL. Prior action lacked procedural opportunities available in the 2nd action ← • • ----------------------------------------------------------------------------------------------------------Hypo: Issue Preclusion Action #1: US v. What result? NOW action #2 qualifies for issue preclusion. In a crim case. the burden of proof is the preponderance of the evidence. Agent (civil action) Is action 2 estopped by issue preclusion?
Action #2: Jessie v. o Suppose now D was found guilty in the crim action. the issue is IDENTICAL. issue preclusion is improper. Agent (crim action) o o • • o o o Claim: Agent embezzled IRS funds Judgment: Not Guilty Claim: Agent embezzled IRS funds No. RR
. Basically. the second action’s proof is “included” in the proof of the first action. Therefore. Potential Unfairness to the Defendant i. the burden of proof is beyond a reasonable doubt (not guilty doesn’t necessarily mean the defendant did not do the crime. RR o Bertha’s claim: Negligence and Personal Injury Jessie’s Claim: Neglience and Loss of Consortium RR’s Defense: Contributory Negligence Judgment: Liable to Bertha. but that that there was a reasonable doubt). Multiple inconsistent prior judgments iii. • Hypo: o Action #1: Bertha and Jessie v. Limited incentives to litigate 1st action vigorously ii. In civil case. Not liable to Jesse
Action #2: US v.
Hypo o Action #1: N. the jury could’ve concluded that money damages for J was improper). Some courts would deny issue preclusion because the determination of the issue at hand because that issue was NOT essential to the prior judgment.D. Jrd. The court in this case reached a different conclusion: “The RR is prob correct that the jury found J contributorily negligent.
Action #2: Circ Jeff County Does issue preclusion apply to action #2 on pers jrd?
Cromwell v. it WAS litigated as far as pers jrd EVER is.? by simply not proving the prima facie case of negligence along with loss of consortium. But we don’t know that for sure—all we know is that B was awarded money. besides contrib. Ala o o Negligence No pers jrd No pers jrd Yes. Meets all the req’s. and that J was not contributorily negligence. The identity test would NOT consider them identical because J did not seek personal injury recover in the first action. was even decided. but still must prove causation. But there is ONE way J could use issue preclusion—negligence. County of Sac Action #1: Smith v. (How else could the jury not have awarded J any money. looking at the common nucleus of operative fact. o
Claim: Negligence and PI Questions: • Is the claim the same? The transactional based test. the issue must be EXACTLY. J can estop D from relitigating duty and breach. damages. would consider these two actions identical. Issue preclusion is improper here because we have no idea that the issue of contrib. The prior judgment would’ve been the exact same because there were inependent grounds to reach the same result.
Is Jessie’s action #2 barred by issue or claim preclusion?
Hypo: Pers. and J wasn’t. ultimately. The point here is. County o o o Claim: Payment of bond coupon interest Defense: Bonds were void for fraud in the inducement Judgment: Bonds and coupons were void for fraud (unless P demonstrates he is a bonda fide purchaser)
and they litigated the issue in the prior action with Bertha Traditional Mutuality Requirement: Even though RR was a party to the prior action. • Ill RR Variation #2 o Action #1: Bertha v. RR Universal Rule is satisfied because Jessie is not being barred. Parklane a. Can never use issue preclusion to bar someone from litigating an issue. unless they have already done so
Ill RR Variation #2 o Action #1: Bertha v. Claim: Securities fraud
. The court held that Cromwell is not estopped from showing that he purchased the bonds for value. County o o Claim: Payment of bonds and coupon interest Defense: Bonds were void for fraud in the inducement
• • Issue/Claim Preclusion? o “Did he give value for the bonds”—was an issue that was never litigated.•
Action #2: Cromwell v. because Jessie was not a party to the prior action. The issue of fraudulent inducement from the start WAS precluded.
Parklane Hypo: 1. RR o o Claim: Negligence Judgment: RR WAS negligent Claim: Negligence
Action #2: Jessie v. Jesse cannot use issue preclusion to prevent RR’s relitigation of the issue because the parties are not the same in the two actions. RR Universal Rule: RR cannot use Issue Preclusion against Jessie. RR o o Claim: Negligence Judgment: RR was NOT negligent Claim: Negligence
Action #2: Jessie v. the RR is. Action #1: SEC v.
b. Found: proxy statement was misleading c. Remedy: Declaratory judgment (& injunction?) 2. Action #2: Shores v. Parklane a. Claim: Securities fraud b. Remedy: Damages (and others). ← Traditional Rule: action number 2 is different, no issue preclusion
Erie Doctrine: State Law in Federal Courts
1. Background and Intro a. Remember: Fed Courts SMJ b. Fed SMJ requires Fed Question or Diversity i. Federal question by definition involves federal law, so that applies ii. But in diversity, parties are in federal court solely based on diversity, what law does the federal court apply? 1. Does it apply state law; if so, which state? 2. Does it create its own federal common law? 2. Constitutional Law--The Constitutional doesn’t tell individuals what they cannot do, it allocates power to the states to tell individuals what they cannot do. The Constitution gives federal government the enumerated powers, grants all other power to the states, and allocates powers between the three branches of government. 3. Choice of law-- Any court in any case has to decide whose law the court must use to decide. Clearly, if Alabama citizens, and the COA arose in AL, the AL laws will apply a. But when the citzens are from diff state, the COA arose in a diff state, the question becomes complicated. 4. Erie Doctrine: What substantive law should a federal court apply in a case founded solely on diversity? a. The Rule of Decision Act (RDA) tried to answer this question i. “the laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the US, in cases where they apply” ii. RDA looks deceptively simple, if federal statute or Constitution doesn't apply, use state law (but what that actually meant was ambiguous, and was litigated for hundreds of years 5. Erie and Swift a. Erie in the District Court i. ii. iii. The Conflict Swift and Application of the Rules of Decisions Act Basis of Swift interpretation 1. Lay meaning of “laws” a. Given these holdings, these courts are interpreting the word “laws” included in the Rules of Decision Act to NOT include the decisional law articulated by the courts of the state, only statutes counted. Therefore, the federal courts can ignore judicial decisions in applying law. The court of appeals applied the same holding.
Philosophical concept of “Law” a. Before Erie, the courts adhered to the philosophical legal doctrine of “natural law.” The court sought, through reason and logic, to figure out exactly what the CORRECT law was. Penn is simply “trying to get it right.” A. Erie: when the RDA says “law,” that includes state statutory law and judicial decisions of the high court. State have the right to make own law, there is no ONE law b. Promote Uniformity
The Erie Supreme Court Holding i. Facts: Simple tort action, Tompkins hurt walking along railroad by RR car door that was open as it passed 1. But laws that might be applied were different a. b. ii. PA: had to prove wanton conduct if walking along RR Fed: simple negligence is enough to find liability
Federal courts sitting in diversity must apply state substantive law, whether that law is in the form of a state statute or a state judicial decision 1. What is substantive and what is procedural when it gets murky? a. b. Erie needed to be developed for these gray areas of law In York, Byrd and Hannah, court kept tweaking what it thought was the right approach
Basis of Erie Holding i. New Scholarship: law review article that based its argument on rejected drafts legislative intent. ii. Experience with Swift 1. 2. Uniformity did not develop Confusing distinction between “General” and “Local” law a. b. iii. Out of state plaintiff got to choose what standard would be applied by choosing federal or state court (b/c of diversity) In state plaintiff could not forum shop (no diversity) Legal Realism (major reason) 1. There is no ONE law to “find”, just the law the state chooses 2. A much more modern view of the Common Law: a. Not attempting to deduce the grand divine common law, merely enacting “laws” that can be disagreed with. A state’s law is merely a policy choice, so why should the policy change solely because of the parties’ citizenship?
3. Unfairness of Forum Shopping
2. then why was the RDA ever passed? The issue of Swift’s constitutionality is unclearly articulated in the Erie decision. that does not mean that fed courts have to apply state procedure
York v. Justice Reed in Erie. i.
6. On matters of procedure. York sued in federal court. Which law applied?
ii. Swift was articulating laws where it had no constitutional authority to do so. Does the choice between the disputing laws affect the outcome?
c. 10th Amendment? Maybe the problem with the old Swift rule was that the fed gov’t had entered into areas that it was not allowed to govern. BUT if we’re saying that the fed courts CANT interpret its own federal common law. based on laches and equitable relief.
Even under the Decisions Act. the federal courts can apply its own rules and laws. the constitution then must require that the federal courts adhere to the state. regulating everyday conduct ii. III. regulating court conduct
1. 2.iv. The Scope of Erie a. Procedural deals with process of litigation.it is very clear that the Erie doctrine requires federal courts to comport with state SUBSTANTIVE law.”
a. a. 2. federal limitations. but statutes of limitation for state claim had expired. b. Procedural is merely the manner and means of which recovery is
based. Due Process? No 3. 2. The York Outcome Determinative Test
1. Probably not the answer. Facts: Identify the Conflict of Laws 1. didn't bar claim. Equal Protection? AL ends up with one result while CO ends up with a different result in the same court. This begs the question: if that is the case.
Unconstitutionality of Swift: Which part of the Constitution did Swift violate? The opinion urges that it violates the constitution but doesn’t specify where. Guaranty Trust Co. Substantive deals with identifying obligations. Mode and form of obtaining a remedy for injury Traffic rules for court
iii. How do courts distinguish substantive law & procedural law?
i. Substantive law “significantly affects the outcome of the case. 1.
. 3. Remember: Erie issues arise when in federal court on diversity and the fed and state courts have conflicting laws. 2. the fed courts are free to apply either law. When a diversity action is filed in federal court. balance the following: a. The problem is. at some time. does the rule seek to regulate daily conduct rather than litigation)? a. 2. state rule applies. Apply York: This does not ‘clearly’ substantially affect the outcome. The 2-part Byrd Test 1. consistent with the 7th Amendment. which was decided as a matter of law by the judge in SC. But it doesn't affect everyday conduct d. 3. Under the York test. Is the state rule “bound up” with the state-created rights and obligations that form the basis of the action? (e. York test appears to be too blunt. State law requires documents be filed on legal size paper (8½ x 14). which rule applies? May the federal clerk refuse to accept a complaint printed on letter size paper? a. ANY conflicting law affects the outcome. Court revisits the issue in the Byrd case. because you lose unless you change to letter sized paper b. Because of the procedural nature of the judge/jury dispute.g.a. Federal court requires letter size paper (8½ x 11). There is a strong federal interest in using juries. Byrd v. iii. The employee-employer relationship in this case is stated under the Workmen’s Comp Act. this state law would probably be considered procedural v. The Conflict: Worker’s comp claim against company that hired contractors to do work. If so. as per SC statute. 4. State Ct: Judge decides if Blue Ridge deemed Byrd’s employer iv. iii. in
some fashion. Paper Size Hypo 1. 1. This is outcome determinative. Blue Ridge i. The York-type interest in avoiding different outcomes for the same action brought in state and federal court
. of course. Fed: Jury decides if Blue Ridge deemed Byrd’s employer 1. If not. one of whom was injured doing work the company’s employees do as well ii. Even minor ‘procedural’ laws can completely bar recovery if not specifically adhered to.
Applying Paper Sized Hypo Using Byrd Test 1. has basis in 7th Amd. limiting forum shopping A. Applying To the York facts: probably apply state rule 1. Applying To Erie: 1. Byrd test will consider this state interest is significant to overcome any federal interest and apply state law.b. and is thus “bound up” in State law. Interest of avoiding different outcome? No way to tell difference. Judge rule is not integral to whether a person in or is not an employee.Laches a.Simple N a. Fed. Interest in applying laches vs. c. State: S/L 2. Therefore. “Gross negligence” is the very standard that dictates whether behavior is tortious. This changes the underlying right that the suit is over. Applying To Byrd: 1. so balance: a. just the method of deciding 2. vii. Is SC judge rule bound up with rights forming basis for suit (Personal injury action to regulate harmful conduct) a. plaintiff shows up in federal court with legal.
The federal interest in an independent federal system and in applying the federal rule in question
vi. but only if timing is tight
. state rule? i. Rule bound up in rights underlying action? a. State. Not as compelling as in providing a jury trial
ix. Outcome determinative at some level. Fed. b. SoL is not usually part of the state’s definition of rights or obligations Interest in avoiding different state and fed outcomes. Not even close. not a huge effect Federal rule of juries deciding facts very strong. Federal requires letter. Balancing: a. solely a regulation of litigation behavior 3. State law requires filings on legal. b. It’s the state law that is the BASIS of the cause of action. could definitely lead to forum shopping once state SoL runs (and fed still available) Federal interest in their own limitations rules A. viii. No.Gross N 2. 2. The different rules affect the outcome.
and Osgood later died. ii. B. iv. Hanah v. The Rules Enabling Act applies. Mass: Service of process to executor must be in person within 1 year 2. Efficiency of having same size paper for all cases is somewhat important. b. Hanah sued estate of Osgood. Traffic accident between Hanah & Osgood. Is Rules Enabling Constitutional? Yes
. Plumer i.
The first part of the Byrd test 3. Inequitable administration of the laws?
A.A. plaintiff just prints on different paper. When a federal RULE (FRCP) conflicts with State law. Choice of law is thus outcome determinative. since its efficiency argument is stronger than concerns (few) with forum shopping e. Application of Mass rule results in dismissal for improper service (D wins). especially when it comes to filing and uniformity in documents 4. Defendant’s Argument 1. neither does the RDA. Fed: FRCP 4. c. So Mass rule must be applied (& case dismissed) under Erie & York. Erie Analysis (If Applicable) Does NOT Require State Law in this Case 2. What’s left out?
A. Erie analysis does not apply. Application of FRCP allows action to proceed. Hanah II test
a. Federal interest probably would override state's interest. a.
But is it likely to lead to forum shopping? Unlikely.serve person at executor’s residence iii.
b. Erie Analysis is Inapplicable to FRCP
a. Hanah’s Erie Test (Hanah I): Will use of the different federal law create: a. Federal interest in its paper size A.
This test will only be applied when Federal JUDGE-MADE law conflicts with State law. naming executor (Plumer) as defendant. FRCP governed by Rules Enabling Act (Federal Statute!)
4. 2. Court’s Analysis 1. Facts and Conflict of Laws 1. Conflict of Laws: 1. Forum shopping? b. 2.
FRCP v. Hanah Tests i. When the FRCP is in place. State law 1. Simple joinder of claims—FRCP 18(a)
1. state law--. The difficulty lies when there is judge-made law v. There is no “common Transaction” requirement. Federal Judge-made Practice v.b. Inequitable administration of the laws? ← 1. According to Chief Justice Warren. Is the federal statute constitutional (is it within Congress’ enumerated powers)? ii.
. Federal Statute v. Ex: If a claim for B/K and negligence against a D. Forum shopping? b. State law 1. v. Joinder & Federal SMJ i. despite 18(a)’s permissive language. and both arise from
the same transaction. B. Does Rule Comport with Rules Enabling Act: A. the Enabling Act is much easier to apply. federal courts should apply one of the FRCP if "it really regulates procedure" f. It regulates practice and procedure (broadly defined) It does not abridge or modify a substantive right. these would constitute a single “claim” for claim preclusion purposes that must be litigated in one action. Regulates practice and procedure (broadly defined) b. Complex Litigation: Joinder of Claims & Parties a. Will use of the different federal law create: a. Byrd test.you must then apply all the Erie. the rules of claim preclusion may if the claims arise out of a single transaction
a. Hannah I.
2. Provides that a party seeking relief from an opposing party may join with his
original claim any additional claims he has against that opposing party. Is Rule Enabling Act Constitutional? 2. State law 1. it does not abridge or modify a substantive right iii. Note of Caution: While Rule 18 may not force a P to join all his claims against
a D in a single action. Does FRCP in Question Comport with Rules Enabling Act? a. 1.
Definition: When used. 3.3. Can Anne join in the same action a state law claim for wrongful termination? i. Yes claim preclusion would apply to later assertion
ii. Have to know which to assert or lose the claim
b. Simple Joinder Hypo a. else I lose
i. and whom the court cannot acquire jurisdiction c. ii. it must be asserted in
the initial action else it is forfeited. It may have other ways to get in to fed court. just not supplemental
. When Allowed: Always b. A permissive counterclaim can NEVER get supplemental
jurisdiction. Permissive: don’t have to assert every single claim because the burdens would be great and inefficient. If the counterclaim arises from the same transaction. compulsory counterclaims will ALWAYS have
supplemental jurisdiction in federal court i. c. Also. Anne (IL) sues Barb (IL) in federal court under a federal civil rights statute for unlawful termination from her job. because it is by definition not related (otherwise would be compulsory) i.
2. A pleading must state as a counterclaim any claim that—at the
time of its service— the pleader has against an opposing party if the claim:
arises out of the transaction or occurrence that is does not require adding another party over
the subject matter of the opposing party’s claim. 1. b. you can assert a claim back against them a. arises out of same transaction. Compulsory—there are certain counterclaims that I MUST assert. If claim arises from same transaction (same def for each)
c. Why does compulsory or permissive matter? a. Rule allows it (no limits) Fed SMJ? Yes. so gets supp jur
Does Anne run into a problem if she chooses NOT to assert the second claim with the first? i. Counterclaims—FRCP 13(a) compulsory and 13(b) permissive. it forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action.
Rule 13(h) authorizes a defendant to bring in an additional party on his counterclaim. they share the same T or O and share a common question of law or fact) 6. How if they were two different contracts? (1) Close and logical relationship (2) Contracts could be canceled or withhold pay based on incidents from the other contract 7. Once a claim is properly asserted under 13(g). this allows 18(a) to “kick in. a. but the court may not have the jurisdiction to hear it. Heyward counterclaims on Navy and Stelma Job c. federal question) on the court to hear those claims. or claims against multiple parties. D'Agonstino counterclaims itself for Stelma job Why does it matter? SMJ and D'Agonstino's counterclaim b. Navy job had fed question (gov't contract) d. D'Agonstino sues Heyward for Navy job i. SMJ must be analyzed separately. b. How did court determine if it was compulsory?
i. 5. Arises from same transaction (common nuclear of operative
fact) ii. i.
. Authorizes Ps to sue together if they assert claims arising out of the same transaction or occurrence and their claims against the D or Ds will involve a common question of law or fact.”
b. Exceptions to Compulsory Counterclaims a. Once a defendant has properly asserted a counterclaim under 13(g) (same
transaction) he may then join in any unrelated claim he may have against the 3rd party defendant under 18(a). Claim does not yet exist Claim is already pending in another court Claim requires joinder of parties beyond court's jurisdiction
iii. Heyward Robinson a. does not automatically confer subject matter jurisdiction (diversity. Issue: is Heyward's Stela counterclaim compulsory? ii. c. Joinder of Parties—FRCP 20
1. US v. the joinder rules will authorize the joinder of a claim.4. Caution: the fact that the Rules authorize joinder of multiple
claims. so long as his claims against the added party and the original plaintiff meet the requirements of Rules 20(a)(2)(A) and 20(a)(2)(B) (that is.
any right to relief is asserted against tem jointly. cargo. sharing litigation costs also may occur d. Any question of law or fact common to all Ps will arise in the action 3. as the plaintiff is the “master of the complaint” 2. and b. and b. or in the alternative with respect to or arising out of the same transaction. 4. occurrence. or series of transactions or occurrences. trial court allowed immediate appeal ii. or in the alternative with respct to or arising out of the same transaction. but each alleged a GM wide policy of discrimination (2) Had the nationwide policy not been alleged.a. severally. occurrence. Trial court granted. Plaintiffs may join in one action as Ps if: a. Do they arise from same transaction/occurrence (Close and logical relationship) (1) Not the individual transactions. the allegation of company discrimination policy
. cumulative effect of evidence may sway jury on a weaker plaintiff's case a. They assert any right to relief jointly severally. Joinder under Rule 20? i. or other property subject to admiralty process in rem—may be joined in one action as Ds if: a. However. plaintiffs appealed i. Mosley v. Do they share a common question of law? (1) Yes. What impact does severance have on plaintiff's claims? (1) Claims heard separately (2) If all heard together. Nine different people sued GM for various employment discrimination claims b. Defendants—persons—as well as a vessel. severed the claims. any question of law or fact common to all defendants will arise in the action. the same transaction test probably would not have allowed joinder ii. GM filed motion to sever the claims. on grounds that the represent different events and different actions c. Rule 20(a) does not require parties to be joined whenever
the criteria in the rule are met. or series of transactions or occurrences. General Motors a. Even though this was just pleading stage.
ii. 6. There may be times when a plaintiff has sued one party.
2. FRCP 14(a)(1) i. Impleader—Rule 14 1. serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But if the parties are not joined. 5. plaintiff has to join them. or face dismissal
What if the parties cannot be brought before the court (no SMJ or PJ?) Rule 19(b): Indispensible (dismissal if not feasible) a. (1) Timing of the Summons and Complaint. which provides for the joinder of an assertion of claims against nonparties a. ii. A defending party may. (a) When a Defending Party May Bring in a Third Party. b. by motion. 3. iii. obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer
. It is required for complete relief Has an interest that could be impaired by the action It could face multiple or inconsistent judgments When are parties compulsory? FRCP 19(a): Necessary (required if feasible)
If the parties meet these requirement. the action can be dismissed When they are Necessary and Indispensible A party who meets SMJ criteria must be brought in if: i.iv. but defendant says there are other parties out there that are essential to the litigation (without derivative liability) 2. This happens very rarely a. iii. 4. Are the parties are so critical to the action that it has to be dismissed if they cannot come in? Factor for determining this i. Likelihood of prejudice Extent that prejudice can be reduced Adequacy of judgment without person Availability of remedy if case dismissed
7. iv. a. b. But the third-party plaintiff must. Compulsory Joinder of Parties (FRCP 19) 1. a. Defendants are afforded the opportunity to join parties to the litigation through Rule 14. ii. as third-party plaintiff. a.
This is rarely an issue
law allows defendant to recover from third party because of defendant's liability in first action 1. Also. the 3rd party does not affect venue. into one
proceeding a. substantive law does. However. Must be an indemnity type of claim 5. Can't implead is saying not liable. but just allows insertion of third party claim when the third party asserts derivative liability i. All of these Hypos involve separate suits. there still must be a basis for subject matter jurisdiction over the D and 3rd party. Third arty liability liable to defendant. other person is vi. b.
4. as well as personal jurisdiction. The defendant facing liability can implead the party who would be liable to them in another action (makes two actions into one) Rule 14 does not CREATE the liability. because defendant is liable to plaintiff ii. Third party liability exists solely because of defendant's liability in first action
.3. Rule 14 simply allows the second action to be joined to the first. Impleading a 3rd party does not affect the court’s jurisdiction over the original
claim (this prevents Ds from manipulating jurisdiction by Impleader). Can't implead if other is just liable to defendant b. Rule 14: Can only implead if asserting derivative liability a.
do you have any recourse? I ---> You. a. Soup makes Consumer ill because the soup contains some foreign substance. What can parent do? Bank -----> Parent. Grocer ---> Manufacturer
. I trip on the carpet and am injured. 3. You promise reluctant parents to pay them back if they ever have to pay anything. Bank requires parents to cosign note. While visiting your apartment. 3. 2. You ---> Insurance Co
Impleader Hypo C 1. You have renters insurance. If I prevail.Impleader Hypo A: 1. Grocer buys inventory from manufacturer. Parent---> You
Impleader Hypo B 1. b. Does Grocer have any recourse? Customer ---> Grocer. Consumer buys a can of soup from grocer. 3. I sue you. You default & bank sues parent. Consumer sues Grocer. 2. 2.
venue and PJ restrictions apply b. interpleader. Binding on all class members. Discretion of judge
d. c. Venue proper where any claimant to the property resides iv. b. Intervention i. but also everyone else in their situation 1. a third party wants to inject themselves into the action 1. & class actions) c. There are two ways to institute interpleader actions a. ordinary SMJ. Usually as a plaintiff. Unique procedural device that permits a party in possession of property that it does not claim to own (stakeholder) to join all claimants of the property (the stake) in a single action to determine who owns the property 1. Necessary because otherwise a stakeholder might be subject to multiple or inconsistent judgments 2. Intervention of right? a. 2. Class Actions: FRCP 23 i. When will FRCP let outsider become a party? 1. PJ is more generous v. Plaintiff(s) (rarely defendant) files a claim to recover not only for themselves. This is a joinder device. and more ii. Plaintiff sues defendant. Specialized devices (intervention. Statutory Interpeader using 28 USC § 1335 i. When attempted under Rule 22. §2361 permits courts to restrain claimants from pursuing any action involving the stake in another court e. Rule 23 Requirement:
. Rule Interpleader using FRCP 22 i. Only requires two or more adverse claimants to be diverse iii. Interpleader i.b. Permits an interpleader action in federal court with amount in controversy of only $500 ii. has much bigger teeth and preclusive effect that usual actions iii. but not always ii. If party has an interst Action may impair interest Interest in not adequately protected by existing parties
Permissive Intervention a. Court may allow intervention if there is a common question of law or fact b.
Numerosity (too many plaintiffs to name) b. c. Adequacy of Representation: Named party and counsel must be
able to adequately represent the entire class 3. Named party is a member 2. Notice i. & ii.23(b)(1)—“Anti-Prejudice Class Action” permitted if individual actions by class members create risk of: i. Settlement & Dismissal i. Implied Prerequisites: a. Individual adjudications disposing of or pairing the interests of other members. Class Action Procedures a. Commonality (all plaintiff must share common questions of law or
fact with named party)
c. Cannot be settled/dismissed without permission of court ii. R. Typicality: named party claim must be typical of those in class d. Opponent acted on grounds generally applicable to the class as a whole. Certification b. b. Common questions of law or fact predominate individualized questions). Class Counsel i. 23(b): Allowable types of Class Actions (don't need to know) a. R. Thereby making appropriate injunctive or declaratory relief with respect to the class as a whole. Class action is the superior method of controversy.1.23(b)(3)—Common Question Class Action i. Court is looking out for interest of absent parties handling the (over
. or ii. 23(a): Express Prerequisites
a. Court selects class counsel d.23(b)(2)—Common Conduct Class Action i. ii. Have to provide notice to ALL members c. Need a definable class b. 4. R. Inconsistent adjudications creating inconsistent obligations for party opposing the class.