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JOINDER

JOINDER & JURISDICTION


I. SMJ – Still need to satisfy SMJ with any type of joinder.
a. §1367 Supplemental Jurisdiction – add claims that don’t have independent SMJ when
theyarise out of same T/O as original claim (that did have the SMJ). Claimant may
aggregate all claims to satisfy amount in controversy req. *Can’t use this if it would
destroy diversity SMJ.
b. Ancillary Jurisdiction – if SMJ on diversity, can bring in non-diverse 3rd party. The
point is that the 3rdparty claim is so related to & necessary to fair conclusion of the
trial, so must be brought in together. The additional claim though must be
“ancillary & dependant,” rather than “new & independent.”
i. Note: Mostly for Df. Pl chose which court to sue in, Df forced. Also, not really
given to Pls b/c we want to deter ppl from suing a diverse party to get SMJ,
then just impleading a non-diverse 3rd party. (See Kroger)
c. Pendant jurisdiction – If there’s already SMJ and suit in fed court, the fed court may
hear state claims that are closely related to the original claim. If on diversity SMJ,
must still have complete diversity but added claims don’t have to independently
meet amount of controversy.
II. PJ and Venue – must always be proper

JOINDER OF CLAIMS
III. Joinder of Claims (Rule 18)- Party asserting a claim, counterclaim, Crossclaim, or 3rd
party claim may join as many claims as it has against an opposing party (permits joinder
of claims, doesn’t compel it).
a. Other rules may be more restrictive (like Rule 13). You have to abide by the most
restrictive.
IV. Counterclaims and Crossclaims (Rule 13) - Authorizes a Df to assert claims against a
party who has claimed against him (counterclaim), or against another Df (crossclaim).
a. Compulsory Counterclaim [13(a)] - If a claim arises out of the same T/O, you must
“use it or lose it.”
i. Don’t need assert the claim if it’s already in another action.
ii.Get SMJ using 1367 suppl. jurisdiction; PJ & venue must still be proper.
iii.Underlying policy concerns: efficiency & economy - If all same T/O, get
everything resolved in one action. Enforce this by not letting the available
counterclaim be brought at a later time.
b. Permissive Counterclaim [13(b)] - You may bring them and raise claims that don’t
arise out of the same T/O. Needs independent SMJ; can’t use 1367 b/c doesn’t
arise from same T/O.

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c. Crossclaim [13(g)] - allows a party to assert a claim against a co-party, but only if
the claim arises from the same T/O (at court’s discretion). (May use ancillary
jurisdiction to get the SMJ needed)
i. No compulsory cross-claim.
ii.Must ask for relief, otherwise, it’s just a defense.
iii.If one cross-claim asserted is same T/O, party can go ahead and assert any
other cross-claims that it has. Theory is, if we have to deal with the cross-
claim, then it’s ok to go ahead with the others.
V. Plant v. Blazer Financial Services
a. Facts: Suit based on a federal claim (truth-in-lending act). Df’s counterclaim of
money owed. Issue of whether counterclaim was compulsory or permissive.
b. Rule 13 permits Df to bring either a compulsory or permissive counterclaim. The diff
matters here b/c counterclaim needs independent SMJ, and we’re in fed court via
fed ques (not diversity). Rule 13(a) says it’s compulsory if same T/O (and supp juris.
also extends to this via 1367). If permissive, then no independent SMJ, and no suppl.
Court gives us 4 tests on how to determine if same T/O:
i. Are the issues of fact and law raised by the claim and counterclaim largely
the same?
ii.Would res judicata bar a subsequent suit on Df claim absent the compulsory
counterclaim rule?
iii.Will substantially the same evidence support or refute Pl’s claim as well as
Df’s counterclaim?
iv.Is there any logical relation between the claim and counterclaim?
1. Logical means - arising from the same "aggregate of operative facts" in
that the same operative facts serve as basis of both claims or the
aggregate core of facts upon which the claim rests activates additional
legal rights, otherwise dormant, in the defendant.
2. Court concludes it meets this test, so its compulsory (court’s
discretion)
c. Policy Concerns: Freedman says ruling as compulsory is wrong for policy reasons
i. We don’t want to deter ppl from suing based on truth in lending act b/c
they’re afraid their loan balance would offset their damages.
ii.We don’t want to clog up fed courts with non-fed issues.

WHO MUST BE PLAINTIFF?


I. Who must be a plaintiff: Rule 17 -
a. Real Party in Interest - The real party in interest requirement insists that the party
who sues actually possesses the substantive right (by substantive law) being
asserted and has a legal right to enforce the claim. Real party in interest must sue
under own name. However certain people have the right to sue in their own name
w/o joining the real party in interest (like a trustee or beneficiary).

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b. Capacity to Sue or be Sued - Capacity to sue or be sued refers to an individual's
ability to represent her interests in a lawsuit without the assistance of another. Two
categories:
i. Incapacity of a minor or incompetent person - as a matter of law, there are
certain classes of people that lack the capacity to sue or be sued and if this
happens, then court will assign a guardian.
ii.Incapacity due to organizational status or legal relationship. When an
organization lacks the capacity to sue or be sued. If rule comes from federal
law, then an unincorporated organization can be sued.
II.

IMPLEADER: 3RD PARTY DEFENDANTS


I. Rule 14. - provides that a Df can bring in as a 3rd party Df one claimed by the Df to be
liable to him for all or part of the Pl’s claim against the Df (and it necessarily must arise
out of the same transaction or occurrence).
a. The rule is not mandatory - Df may refrain from impleader and assert his claim
instead in an independent action.
b. Need independent basis for jurisdiction.
c. In order to satisfy 14(a), any liability of a 3rd party Df must necessarily be secondary
or derivative to the liability of the original defendant. You can’t implead a 3rd party
just b/c he would also be liable to Pl.
i. Watergate Land Condominium Unit Owner's Association v. Wiss, Janey, Elster
Associates
1. Facts: Pl hired 2 companies to do some repair in condos. Df, hired to
draw specifications, and 3rdpart to do waterproofing. Pl sues Df but not
the waterproofers. Df tries to invoke Rule 14 to implead them.
2. Analysis: Df can’t implead b/c 3rdparty would not be liable to Dfs if Df is
ultimately liable to Pl. 3rd party only liable to Pl, and Pl chose not to
sue them. (If Df had hired the waterproofers, then they could implead
them.)
3. Policy - Pl master of claim – can’t force them to sue someone they
didn’t chose to. So 3rd party liable only to Df. Can’t add on a Df that’s
liable to Pl if Pl doesn’t want it.
a. Better for Pl to sue all possible Dfs and let them battle it out. Pl
didn’t do that here, b/c possibly no basis for liability, and they
can’t under Rule 11 if there are no merits (sanctions harassing).
Maybe no jurisdiction.
d. Liability of 3 party Df – to implead only show that 3rd party may be liable. Rule 14
rd

only is a procedural mechanism to get them in, but it doesn’t create liability.
e. You can go on and on – a 3rd party Df may also use this rule to implead another 3rd
part Df
f. Pl using impleader:
i. If there’s a claim against Pl, she may bring in a 3rd party if this rule would
allow a Df to do so.

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ii.Pl can assert a claim against any 3rd party Df arising out of same transaction,
etc. of the Pl’s claim against the 3rd party Pl (original Df).
iii.A claim by an original Pl against a non-diverse third party defendant is not
within the court's ancillary jurisdiction.
iv.Kroger v. Omaha Public Power District
1. Fed court diversity SMJ. Df impleads Owen as 3rdparty Df. Pl then
asserts claim on 3rd party Df too. Df Omaha found not liable. Pl (IA) and
Owen (incorporated in NE) from diff states, so diversity ok for SMJ. But
Owen challenges SMJ – turns out main office is in IA, destroying
diversity.
a. Owen’s answer didn’t provide this info. Info was true, but not
forthcoming (affirmed they were incorp. In NE, but denied
everything else.) Pretty misleading and deceptive. *apparently
this didn’t matter to court.
2. Court says Pl could not have brought this suit against Owen in Fed
court by itself b/c no diversity, so can’t do it now. It would be ok
through ancillary jurisdiction, but since Df now out of the suit, there’s
no more ancillary jurisdiction. It’s only btwn Pl and 3rd party Df (a new
an independent claim).
a. If courts would allow this then Pls will sue a diverse party then
wait for them to implead a non-diverse party so that they can be
in fed court.
v.It is not unconstitutional for congress to change requirement of complete
diversity.
1. Strawbridge v Curtis - the case which instituted the complete diversity
requirement, which is an interpretation of the statute only, not
constitution, so congress could make a statute otherwise based on
minimal diversity
2. So Congress could have said that once there is a good diversity
lawsuit, then there is also jurisdiction over Pl's claim over 3rd party,
but congress didn’t. In 1367b, they specifically wrote that claims by Pl
against persons made parties under Rule 14 (3rd party), are no good if
inconsistent with requirements of diversity.
a. B/c we are talking about substantially a different dispute, and
one that has no business in being in fed court anyway (only here
in first place on diversity)

COMPULSORY AND PERMISSIVE JOINDER OF PARTIES


I. Compulsory Joinder [Rule 19] : When an absentee is a necessary party, they must be
joined if feasible, for lawsuit to continue. If absentee doesn’t want to join the suit, he will
be brought in as a Df (an absentee claimant may be made an involuntary Pl). When it’s not
feasible to join a necessary party, and that party is indispensable, then the claim should
be dismissed (if court, at its discretion, decides not indispensable, then suit will proceed).

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a. Joining Plaintiffs – normally it’s voluntary, but could possibly be forced using Rule 19
(rare though). Courts take a generous view of joinder of Pls, since Pl is the master
of the suit.
b. Necessary (Required) Parties One is a necessary party if:
i. If in his absence complete relief cannot be accorded among those already
parties
1. Whether the absence of a person makes likely further lawsuits among
those already parties, or if meaningful relief can be granted without
the absentee
ii.He claims an interest relating to the subject of the action and is so situated
that the disposition of the action in his absence may impair or impede his
ability to protect that interest
1. What is necessary is that there may be such a detriment to the
absentee that he needs to be entitled the opportunity to influence the
outcome
2. Also when disposition of the action in his absence may leave an
existing party subject to the risk of double liability or inconsistent
judgments
iii.Excuses an involuntarily joined parties from the case if he objects to venue
and his joinder would render the venue of the action improper
c. When is joinder of a necessary party feasible? - Person can only be joined when
there is PJ and SMJ
i. Difficulties may arise when trying to serve process beyond borders of the
state.
1. Rule 19 authorizes service of process up to a distance of 100 miles
from fed courthouse
d. When it’s not feasible to join a necessary party, the claim will be dismissed if that
party is indispensable. When are persons who cannot be joined indispensable?
i. Whether in equity and good conscience the action should proceed among the
parties before it or should be dismissed. 19(b) sets out 4 factors courts
should weigh:
1. To what extent a judgment rendered in the person's absence might be
prejudicial to him or those already parties.
2. The extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided
3. Whether a judgment rendered in the person's absence will be
adequate
4. Whether the Pl will have an adequate remedy if the action is dismissed
for nonjoinder
ii.Circumstances where court may still decide to preserve the suit:
1. If already fully litigated - Unfairness of forcing Pls to start from scratch
2. Where Df would be forced to pay the judgment twice
II. Permissive Joinder of Parties – (persons who may join or may be joined) authorizes
permissive joinder of claims by multiple Ps or against multiple Ds. At court’s discretion.

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a. Rule 20. - Rule permits the assertion of "any right to relief" held "jointly, severally
or in the alternative," so long as claims joined to bring multiple parties into the
lawsuit are:
i. arising out of the same transaction or occurrence, -AND-
ii.Have in common a question of law or fact
b. Object of Rule 20: To promote trial convenience and expedite the final determination
of disputes, thereby preventing multiple lawsuits.
c. Limitations: Rule 20 operates only on pleading level - doesn’t guarantee that parties
will be tried at the same time, or that it will be tried in federal court. Still must
satisfy SMJ, PJ and venue.
d. Akely et al. v. Kinnicutt et al.
i. Permissive joinder of parties (193 investors) against Df on a fraud scheme. Df
says can’t join b/c each action arises out of a separate transaction (fraud on
each individual Pl at diff times). Pl says it’s the same fraud, and same series
of transactions.
ii.Court looks at public policy – more efficient to try all claims together
(balancing with dangers of prejudice – Ex: only a few of Pls might have
actually been defrauded, etc.). Concludes that an overwhelming amount of
time will go to the same issues of fact.
1. Since arose out of the same series of transactions, and one scheme to
defraud the public, then ok to join these parties.
2. Constitutionality - Doesn’t deny Df with right to a jury trial - as long as
jury trial is preserved, the details to the method used is largely
legislative discretion.
iii.Why do Pls want join all claims together?
1. Efficiency
2. more leverage to force a settlement (more publicity, more persuasive,
more proof)
III. Rule 21. Misjoinder and Non-Joinder of Parties - Misjoinder of parties is not a ground
for dismissing an action. On motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also sever any claim against a party.

INTERPLEADER
I. Interpleader – When a piece of property or monetary fund (“stake”) is claimed by 2 or
more people, the holder of the property (“stakeholder”) can avoid multiple litigation and
inconsistent judgments by forcing everyone who has a claim to fight it out in the same
suit. One final judgment which all claimants are privy to, so that judgment is binding.
a. The stakeholder may be either disinterested (claiming no interest in the stake and
getting excused from further involvement in the case), -or- interested (retaining a
claim in the stake and continuing to be involved in the action through its resolution).
b. Stakeholder deposits whatever is in dispute with the court the stake. He may seek
interlocutory relief with respect to the fund during the federal interpleader action.
c. Doesn’t matter if claims lack a common origin; only necessary that they are all
claiming same property.
II. Under the Interpleader Act, you can bring the action under interpleader statute §1335, -or-
you can use the authority of Rule 22.

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Issue Statutory (established by Interpleader Rule 22
Act)
You get to Fed court by invoking the If you’re in Fed court, then you can invoke
statute (Fed courts have original Rule 22.
jurisdiction for interpleader).
SMJ If you bring action under interpleader First you need to be in Fed court under an
statute, then you have SMJ under that. independent basis for SMJ [either it’s a
Requirements are 2 or more adverse federal question, or you have diversity
claimants (min diversity) and $500 or (complete diversity and $75k+ in
more in controversy (§1335) controversy)]. Then you can invoke Rule 22.
PJ; §2361 permits nationwide service of Need personal jurisdiction; service under
service process (this eliminates the PJ problem). Rule 4 (same as always)
of
process
Venue §1397 - expands venue provisions to Residence of stakeholder or all claimants, or
permit venue where any claimant place where claim arose
resides
Injunctio Statutory authority for injunctions Only basis is provision in §2283 for stay
ns (§2361) "where necessary in aid of … jurisdiction"

III. Difficulties arise when multiple claims are brought against one or more parties, and one
party attempts to use interpleader to force the dispute to a particular forum.
a. State Farm Fire & Casualty Co. v. Tashire
i. Facts: Bus collides with truck, 2 ppl die, 31 injured. 4 of the injured sue
Greyhound, bus driver, truck driver & owner of truck (who was a passenger)
for $1mm+ (all Dfs from OR). Before this goes to trial, State Farm, who
insured the truck, brought action of impleader (via §1335) in OR district court
against all dead and injured parties. State Farm says truck only insured up to
$20k (which they put in escrow) and want for all possible Pls to figure it out
(b/c litigations costs for every possible action would be a lot more and State
Farm has to pay for this, so they want all claims consolidated). Tashire &
others moved to dismiss the interpleader.
ii.Rule: Interpleader makes sense in a situation where the stake ($20K) can be
claimed by multiple parties, and we would want one action to determine all of
this (so that 1st claimant doesn’t get everything & subsequent get nothing).
iii.The problem here is due process.
1. Insurance company only liable for $20k, that’s it, so they are not really
an interested party in the entire litigation. We cannot take away the
substantial rights of the interested parties (the Pls), such as the right to
choose a forum, with proper SMJ, PJ and venue. Bus accident in CA,
litigants from CA, so why should they be forced to go to OR.
2. Basically court is saying that interpleader can’t be used by a Df in
State Farm’s position to localize litigation in a single court simply b/c it
might be cheaper to do so. Can’t take away Pl’s rights. However, once
Pl’s get judgment, then State Farm can use interpleader.
IV. 28 USC § 1407. Multidistrict Litigation - When different actions in different districts involve
common questions of fact, they can be consolidated to any of the districts. At discretion of

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court – court decides based on convenience of parties and witnesses, and whether it will
promote justice and efficiency.

INTERVENTION
I. Intervention - allows nonparties to join ongoing litigation, either as a matter of right or at
the discretion of the court, without the permission of the original litigants. The basic
rationale for intervention is that a judgment in a particular case may affect the rights of
nonparties, who ideally should have the right to be heard.
a. Original parties ( and maybe judge as well) don’t really like it
i. Complicates and weakens litigation strategy
ii.Additional parties may make settlement more difficult
iii.May turn a lawsuit into a "town meeting" where everyone who may have an
interest in the outcome becomes a party. Rule 24 sets limits.
II. Rule 24 - divided into 2 parts.
a. 24(a) Intervention of right – if you meet these requirements, you must be allowed to
join the lawsuit
i. The intervention must be timely – There’s no actual deadline, but a late
intervention may not be justified (the point is to affect the outcome). When
timeliness is an issue, court asks:
1. Whether the court and those already parties will suffer from a late
intervention
2. Whether the applicant can be faulted for applying as late as he did
ii.Intervener must have an interest in the property or transaction that is the
subject of the suit, and that interest must be in some strong way at risk
1. No longer necessary for applicant to prove that the lawsuit is capable
of binding him in a formal sense (like he would be barred by res
judicata). Rule 24(a)(2) contemplates merely "practical" impairment
iii.When above requirements are met, intervention can still be denied if there’s
adequate representation (b/c not necessary to get involved).
1. There’s adequate representation if applicant’s interest in the outcome
is no greater than an existing party, and that existing party is not
incompetent, or opposing or hostile to the applicant.
b. 24(b) Permissive intervention - Others may also intervene, but at judge’s discretion
i. Court may permit if the claim/defense has common question of law or fact of
main claim.
ii.At court’s discretion- will permit if benefits outweigh the costs of adding the
intervener
1. Benefits – avoiding an additional lawsuit
2. Costs of adding the intervener – whether the intervention will unduly
delay or prejudice the adjudication of the original parties’ rights.
iii.Purpose: advance the interest of the applicant & the court in more cost-
efficient litigation.
iv.Denying a motion to intervene, judge can say you can file a Amicus Brief
III. Atlantis Development Corp., v. U.S.
a. Facts: Atlantis says they own a piece of property (by discovery). When they try to
get ownership rights, U.S. govt says no it’s out of U.S. jurisdiction. Then Acme is
there, and U.S. sues Acme for trespassing, saying it govt property. Atlantis wants to
intervene alleging that it’s not U.S. jurisdiction, and they are the rightful owner.
b. Using Rule 24(a), court must permit Atlantis’ intervention

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i. No issue of timeliness
ii.Atlantis claims a great interest in the outcome of this case. The effect doesn’t
have to be binding in a formal sense; but in a practical sense it would be b/c
whoever wins the suit, U.S. or Acme, Atlantis loses title to the property and
never had an opportunity to defend that interest (can’t be bound if not privy).
Efficiency – we don’t want another lawsuit for same issue.
iii.Atlantis’ interests not adequately protected – all parties want same property.
c. Intervention & SMJ:
i. To come in as Pl – need independent basis for SMJ; cross-claim U.S. for title,
sue Df for trespass
ii.To come in as Df – can use 1367; answer complaint denying U.S. has title;
cross-claim co-Df for trespass.
d. Joinder of Parties: Under Rule 19(a)(2) court could have joined Atlantis on its own
motion, but maybe then we think court is overstepping its boundaries. Usually when
judge sees someone that should be a party, likelihood is either that Df’s will get a
joinder (unlikely in Atlantis b/c all have same interest), or judge’s suggestion
triggers a motion to intervene by the 3rd party.
IV. Mass. Ass'n of Afro-American Police, Inc. v. Boston Police Dept
a. Facts: Original claim is for race discrimination in employment. There’s a consent
decree with goals of getting more black officers promoted. White officers want to
intervene, b/c it would limit their chances of being promoted now (depriving them of
right b/c of seniority).
b. Applying Rule 24(a) – they meet the requirements, but court still denies intervention
based on merits.
i. As a matter of law they have no right to intervene – they have no claim here.
Court said it was only a hope of being promoted, not a certainty. The consent
decree was designed to remove all vestiges of discrimination from the
process of promoting police officers. It does not affect the seniority rights of
officers who hope to be promoted in the future.
c. “Merits”: Didn’t look at merits in Atlantis, but these 2 cases still consistent
i. Judge in Atlantis: It is conceivable that there will be some instances in which
the total lack of merit is so evident from the face of the moving papers that
denial of the right of intervention rests upon a complete lack of a substantial
claim
1. In Atlantis, merits based on the facts, and so the parties should be
entitled to dispute
ii.No violation of due process b/c no merits as a matter of law
1. Decision of Mass court to deny intervention on basis on complete lack
of substantial claim, b/c the issue of the substantial claim was based
on a matter of law
2. Nothing wrong with determining that although reqs of rule satisfied,
but still deny b/c of equity, etc. Should makes sense, is just, is
equitable, lead to sound admin and results in addition to Rule 24a

CLASS ACTIONS
I. Class Actions - permits one or more parties to "sue or be sued as representative parties
on behalf" of all those similarly situated. If many individuals find themselves in the same
situation, advantages may flow from aggregating many lawsuits into one.

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II. Rule 23 - To establish a class action case, the person seeking to represent the class must
show that the following requirements are met (certification):
a. Numerosity – The class is so numerous that joinder of all members is impractical.
b. Commonality - There are questions of law or fact common to the class.
c. Typicality - the class rep's claims or defenses are typical to those of the class
d. Adequacy of representation (most important) - the class rep "will fairly and
adequately protect the interests of the class”
i. Class rep must have some stake in the litigation
ii.Rep's relation to lawyer must be straightforward (can't be related, etc)
iii.Lawyer should have no conflicts that would cloud the litigation
iv.Lawyer has to be sufficiently skillful and equipped with sufficient support and
resources to handle the case.
e. Maintainability – (after first 4 reqs are met, then look here) Additionally, to maintain
a class action, any one of these 3 elements must be present:
i. Where having separate lawsuits poses either of the following risks:
1. "inconsistent or varying adjudications" if not consolidated into a class
action -OR-
2. Some adjudications precluding others if not consolidated
ii.The party opposing the class through action or inaction has treated it as
though it were a class
iii.If the court finds that “common questions of law or fact predominate" over
the individual claims or defenses made by the class member -AND- "a class
action is superior to other methods"for fair and efficient adjudication. To
determine this, court should look at:
1. Class members’ interest in having individual actions
2. Any other actions for same controversy by or against class member,
already existing
3. If you would want to concentrate the litigation in the particular forum
4. Difficulties in managing a class action
f. Notice: which differs according to the type of maintainability (23(c)(2))
III. More on Rule 24:
a. Conducting the Action - In order to prevent injustice or undue delay, court may issue
orders on the course of proceedings, and other procedural matters.
b. Settlement, Voluntary Dismissal, Compromise – only with court’s approval*
i. All class members who would be bound have to be notified first, and court
will only approve after a hearing and on a finding that it’s fair, reasonable and
adequate
1. if a class member objects, court has discretion to deny it.
c. You can appeal if court denies class-action certification
d. Attorney’s Fees & Nontaxable costs – court may award as authorized by law
i. There must be notice, and class members can object
IV. Some Problem with class actions – normal rules of litigation assumes the client who hires
the lawyer guides the case, authorizes settlement, and benefits directly from relief. This is
not true in class actions.
a. Fees - In normal litigation, client pays the lawyer's fee b/c they agreed to do so.
While the named parties of a class action have agreed, the absent parties have not.
Yet lawyers who have worked to benefit the whole group should be paid.
b. Courts apply the "common fund" doctrine - a Pl whose efforts create a fund is
entitled to have those who benefit from it to contribute to his lawyer's fee.
Normally, courts award the class lawyer a fee taken directly from the fund created
by the litigation. How should the court calculate this fee?
i. Simple percentage may be appropriate, like a contingency fee.

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ii.But some argue that a key ingredient of the contingency fee is the agreement
btwn lawyer & client, this is missing in a class action. Instead, you should
calculate the hourly rate and adjust based on various factors like special
risks, novelty of the issue, etc.
c. Damages and Injunctive Relief – Problem is making sure that the class recovery
finds its way into the hands of class members. Many class members unaware and
don’t claim the damages. Sometimes notice is difficult.
i. One solution is the Fluid Class recovery - in the case of a class consisting of
past consumers that dealt with a company, damages would be distributed to
future consumers through rate reductions lasting long enough to exhaust the
recovery.
1. Problem here is that there is no compensation for the plaintiff. So,
instead it serves to deter defendants, but not to compensate plaintiffs.
V. Phillips Petroleum v. Shutts
a. Facts: Class action was certified, and notice given to class member via certified
mail, that they would be included in the class and represented by class reps unless
they opted out. Court used Kansas law, but only a small percentage of the class
members resided in the forum state. Df argue lack of PJ on the out-of-state parties
b/c no minimum contacts w/Kansas, and also b/c the op-out did not establish
affirmative consent of PJ.
b. Court Says: PJ is meant to protect Dfs, not Pls, from the burdens of being dragged to
a forum where they have no minimum contacts. The court and the named Pls are
adequately protecting the interests of the unnamed plaintiffs. Also, the unnamed Pls
don’t have the burden of traveling to the forum state, and defending against
Kansas's judgment. Court says this is not unconstitutional. Kansas court can apply
Kansas law to unnamed parties b/c they were given notice, and an opportunity to
opt-out, and court says this satisfies due process.
c. Rule: Due process requires that, where a forum state wishes to bind an absent Pl,
the Pl must receive adequate notice and an opportunity to be heard, and the Pl
must be able to opt-out.
VI. Class Actions and SMJ:
a. Complete diversity requirement for class actions: only look at class reps; ignore
class member
b. Amount in controversy requirement: cannot aggregate claims of all class members
for purposes of satisfying amount in controversy..
i. Pendant party jurisdiction (Exxon case) allows Pls to aggregate as long as
name party meets amount in controversy.
VII.More on Class Actions:
a. Due process – if another person is cut off from a claim after a class action suit, how
does that work with requirements of due process?
i. Public Policy – there’s a tradeoff btwn binding people that aren’t there, and
efficiency
1. Better chance of winning - based on economy of scale
2. Everyone else gets benefits of a better counsel, which you wouldn’t
have gotten if litigated individually
b. Issue: Corporations using class actions to shield against future liability
i. Problem - mandatory settlement, where members can't opt out and pursue
their cases separately, and settlements that cover future claimants. Critics
say these restrictions violate the constitutional rights of individual plaintiffs.
ii.They may be good for current claimants, but bad for future claimants.
1. If Pl's lawyer doesn’t want to broaden the settlement to include future
claimants, they'll "shop around" to another Pl's lawyer that will.

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VIII.Amchem Products, Inc. v. Windsor
a. Issue: Whether a very broad class can be certified as a class action – it wanted to
achieve global settlement of current and future asbestos-related claims. Class
potentially encompassed millions of people, tied to one commonality – that they
were, or might someday be, affected by past exposure to asbestos manufactured by
one of more than 20 companies.
b. Outcome: Class cannot be certified, per Rule 23
i. Common issue predominance – not met b/c so many different facts
surrounding individual class members; class is too broad
ii.Adequacy of Representation (named parties will adequately represent the
interests of the class)
1. The named parties are typical, but the class itself is so split by conflict
that these people cannot possibly meet the interests of the class. The
currently injured want immediate, generous payments, in conflict with
the exposure-only plaintiffs, who seek inflation-protected fund for the
future. No assurance that the class reps properly understood their
representational requirements.
iii.The global-settlement scheme should be addressed by Congress
(legislature), not the courts (judicial).
IX. Martin v. Wilks - Intervention and Class Actions
a. 1st Action: a class action suit brought by black firefighters against City of
Birmingham for discrimination in employment. They settled by consent decree.
b. 2nd Action: Other white firefighters sued the city for money damages for the
promotions they didn’t get due to the consent decree. City defends itself that it was
only doing what decree said.
i. You cannot be bound by a decree to which you were not a party, b/c it’s
against due process.
ii.City argued that the 2nd action was an impermissible collateral attack, b/c
they had passed up their opportunity to intervene in the 1st action, so now
they are precluded.
1. However, court says Rule 24 allows intervention, but does not require
it. Rule 19, however, requires parties to join parties necessary to have
a complete and final judgment; therefore the city had the burden to
determine which additional parties should have been added to the
action.
c. Dissent:Because of happenings in the world, what may have previously been a good
claim may longer be. Here we have a judgment entered by the court (the
happening), of which made legal what may have otherwise been illegal.
i. Civil Rights Act of 1991 - Congress limited the rights of non-parties to attack
consent decrees by barring any challenges by parties who knew or should
have known of the decree or who were adequately represented by the
original parties.
d. Judge could have solved the problem: by saying in 1st action that he won’t approve
the consent decree unless there is a mandatory joinder of all firefighters & others
that will be affected.
i. Then we would have achieved, consistent with due process, a decree binding
on the class.

DISCOVERY

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SCOPE OF DISCOVERY
I. Pros and Cons of Discovery - Rule 26 requires court to weigh the benefits and costs.
Pros Cons
Promote settlement (b/c you find out real facts) Expensive
Narrow or eliminate issues, which makes a Places heavy pressure on the integrity of the
more focused, direct trial (shorter and more attorney (sanctions). (ex: may not submit docs
efficient trial) if incriminating)
Preserve evidence for trial (Testimony of Discovery request may be burdensome, so it
witnesses who may not be available for trial would be objected.
can be taken via deposition)
Prepare for trial and avert surprise - Get judicial What will be submitted? If specific doc not
rulings based on the facts as they really are requested, it won’t be submitted. If overbroad,
they might object.
Facilitates public justice function of judicial May cause harassment, delay & attrition,
system especially when resources of the parties are
unequal

II. Scope of discovery Rule 26(b): What may be discovered: any matter that is relevant to
the claim or defense of any party & reasonably calculated to lead to discovery of
admissible evidence, and is neither privileged nor prepared or acquired in anticipation of
litigation or for trial unless discovery has been otherwise limited by a protective order of
the court
III. Information already in the discoverer's possession
a. Even if discoverer has info, he is entitled to discover it from his adversary
b. A party is entitled to discover what other parties know, in order to facilitate his own
preparation and possible settlement. Court has power to intervene when:
i. discovery becomes unreasonably cumulative or duplicative (burden
outweighs benefit) -or-
ii.The party seeking discovery has had ample opportunity by discovery in the
action to obtain the information sought
IV. Impeachment Material - Discovery not limited to direct substantive evidence, but includes
materials that may impeach (to question a person's good character) an opponent's
witness.
a. Trend is to require discovery in impeachment material too - b/c this info may not
have anything to do with the merits, and may not be reliable
V. Opinions and contentions - Discovery not limited to facts, but may also include opinions
held by non-experts, and assertions regarding the facts or application of law to the facts.
(rule 33(b) and 36(a))
VI. Insurance & other information about financial assets - Rule 26(a)(1) - requires disclosure of
insurance agreements available to satisfy any eventual judgment, even though they
remain inadmissible at trial.
VII.Rule 26(g) - requires attorney to certify every discovery request

DISCOVERY: PROCEDURES AND METHODS

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I. The most cost-efficient method of getting information is through informal discovery. But
sometimes you need formal devices b/c there’s info not readily available to you.
II. Required Disclosures - Rule 26(a)(1) – Parties must meet early on and exchange
certain req.info (w/o request) - names of witnesses & descriptions of docs that the
disclosing party may use in support of claims or defenses, as well as calculations of
damages, and copies of insurance agreements. Once these disclosures have occurred,
then parties can request additional info (Rule 26(d) says cannot request other forms of
discovery until after the required meetings of Rule 26(f)).
a. "Solely for impeachment" - if info is solely for impeachment, it need not be part of
the initial disclosures. This means that info is used only to attack the other party's
credibility, not the facts, etc.
b. Timeline for disclosures
i. Timeline begins when Df has been served or has "appeared" in the lawsuit
1. Service - when Df has been served, or waived formal service pursuant
to Rule 4(d)
2. Appearance - Df's filing some paper or motion that evinces its
participation in the lawsuit. It would include an answer as well as
various Rule 12(b) motions.
ii.Rule 26(f) – Parties must meet to discuss the case. Parties can then, or within
2 weeks, exchange the required disclosures, per Rule 26(a)(1).
iii.Rule 16(b) requires that (within 90days of appearance/120 days of service),
judge holds a scheduling conference to discuss discovery & other pretrial
matters (how they’ll proceed).
c. Exempted disclosure - Rule 26(b)(1)(E) - lists exempt categories (very small or very
large claims)
i. Smaller claims and those in which either a well-developed record or the
absence of counsel make disclosure unnecessary or potentially unfair
ii.Very large cases, in which one imagines that close judicial supervision will
displace the Rules.
III. Asking Questions: Interrogatories and Depositions (rules 28, 30, 31, 32, 33, 37)
a. Interrogatories- send opponent (a party) a list of questions to answer, and then
wait for a response. Recipient must either answer of object.
i. 25 questions max, get permission from court for more (of if other party
agrees)
ii.Nonparty witnesses can be deposed but don’t need to answer written
interrogatories
iii.Response is certified by party answering – there are sanctions if rules
violated.
b. Deposition - like questioning a witness at trial but w/o a judge.
i. Usually in lawyer's offices; lawyers, witness, and a court reporter or recording
device present.
ii.Lawyers ask questions that witness has to answer under oath
iii.Limits: no more than 10 depositions by any party, and no deposition may
exceed a day of 7 hours, and no person may be deposed a 2nd time w/o
permission of the court.
iv.Only small portion will actually be relevant, but this is what you have to
figure out. Anything could be relevant or lead to discovery of admissible
evidence.
c. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely
used

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i. Lawyer write down the questions and sends to court reporter presiding at the
deposition, and court reporter asks the questions and writes down the
answers.
ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used.
IV. Examining Things and People: (rule 34, 35)
a. (Rule 34) Production & Inspection of documents, things, and land - permits
inspection of those things in possession of the opposing party. Now you are doing
your own research instead of letting the opposing party interpret. Gives you a sense
of the action (ex: flurry of emails sends a sense of panic).
i. Docs - any means of recording info incl. emails, photos, videos, etc.
ii.Procedure for requesting docs:
1. From a party - send a Rule 34 request, specifying the docs sought
2. From nonparty- similar request, but presented as a subpoena (Rule 45)
iii.Number of docs requested not limited
1. Very broad requests allowed, b/c you don’t know exactly what info
opposing party has, but then so many docs are available, & only a few
are relevant.
2. Opposing party might object b/c request was too broad, and ask them
to narrow the request. The requester might be suspicious then that
opposing party is seeking them to narrow the request so as to insulate
the production of relevant and damaging evidence.
iv.Rule 34(b) requires that docs are produced "as they are kept in the usual
course of business or shall organize and label them to correspond with the
categories of the request.”
b. (Rule 35) Physical & mental examinations:provides for a special application to the
court and a showing of "good cause." This is limited b/c it’s considered intrusive
(see Privacy).
V. Requests for Admission (Rule 36): Asking your opponent to admit things
a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an
issue out of controversy
b. If you ask for a question that’s central to the claim, how can party respond to this if
that’s why you’re here. Court may deem something admitted if time has lapsed.
Some courts though only hold it admitted if it’s a peripheral issue, not a core one.
VI. Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to
supplement discovery responses "seasonably."
a. What must be supplemented?
i. Correct errors - if previous answer was incorrect when made or correct when
made but no longer true under circumstances such that a failure to amend
would constitute knowing concealment
ii.Disclose when potential new witnesses are identified
iii.Supplement previous production, even if previous was merely incomplete
b. "Seasonably" - Court may order specific intervals of time to produce supplemental
discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably
means, but if court decides you didn’t supplement seasonably, you can be
sanctioned.
c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed
without first issuing a discovery order. This is to make sure if a lawyer doesn’t want
to comply, thinking if he'll have to then he will, to not abide until discovery is
ordered (they might do this so as to give opposing party no time to investigate that
info). This is inefficient; we want lawyers to abide right away. So sanction can be
imposed right away.

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15
i. But doesn’t just have to be because of bad faith conduct. It's also about
justice and efficiency.
ii.If a party doesn’t submit supplemental discovery timely, they may be barred
from using that info at trial (like revealing the name of a witness, then can’t
use witness at trial).
Pros Cons
Cheap. Limited # of questions you can ask.
Good for factual information - things as Can’t follow up on evasive answers,
to which you can frame an so don’t get enough valuable info.
unambiguous question of fact
Since most routine info disclosed in
1st stage (req. discl.), there may be
few situations where this will be a
useful tool.
d. Deposition - like questioning a witness at trial but w/o a judge.
i. Usually in lawyer's offices; lawyers, witness, and a court reporter or recording
device present.
ii.Lawyers ask questions that witness has to answer under oath
iii.Limits: no more than 10 depositions by any party, and no deposition may
exceed a day of 7 hours, and no person may be deposed a 2nd time w/o
permission of the court.
iv.Only small portion will actually be relevant, but this is what you have to
figure out. Anything could be relevant or lead to discovery of admissible
evidence.
e. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely
used
i. Lawyer write down the questions and sends to court reporter presiding at the
deposition, and court reporter asks the questions and writes down the
answers.
ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used.
VII.Examining Things and People: (rule 34, 35)
a. (Rule 34) Production & Inspection of documents, things, and land - permits
inspection of those things in possession of the opposing party. Now you are doing
your own research instead of letting the opposing party interpret. Gives you a sense
of the action (ex: flurry of emails sends a sense of panic).
i. Docs - any means of recording info incl. emails, photos, videos, etc.
ii.Procedure for requesting docs:
1. From a party - send a Rule 34 request, specifying the docs sought
2. From nonparty- similar request, but presented as a subpoena (Rule 45)
iii.Number of docs requested not limited
1. Very broad requests allowed, b/c you don’t know exactly what info
opposing party has, but then so many docs are available, & only a few
are relevant.
2. Opposing party might object b/c request was too broad, and ask them
to narrow the request. The requester might be suspicious then that
opposing party is seeking them to narrow the request so as to insulate
the production of relevant and damaging evidence.
iv.Rule 34(b) requires that docs are produced "as they are kept in the usual
course of business or shall organize and label them to correspond with the
categories of the request.”

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16
b. (Rule 35) Physical & mental examinations:provides for a special application to the
court and a showing of "good cause." This is limited b/c it’s considered intrusive
(see Privacy).
VIII.Requests for Admission (Rule 36): Asking your opponent to admit things
a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an
issue out of controversy
b. If you ask for a question that’s central to the claim, how can party respond to this if
that’s why you’re here. Court may deem something admitted if time has lapsed.
Some courts though only hold it admitted if it’s a peripheral issue, not a core one.
IX. Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to
supplement discovery responses "seasonably."
a. What must be supplemented?
i. Correct errors - if previous answer was incorrect when made or correct when
made but no longer true under circumstances such that a failure to amend
would constitute knowing concealment
ii.Disclose when potential new witnesses are identified
iii.Supplement previous production, even if previous was merely incomplete
b. "Seasonably" - Court may order specific intervals of time to produce supplemental
discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably
means, but if court decides you didn’t supplement seasonably, you can be
sanctioned.
c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed
without first issuing a discovery order. This is to make sure if a lawyer doesn’t want
to comply, thinking if he'll have to then he will, to not abide until discovery is
ordered (they might do this so as to give opposing party no time to investigate that
info). This is inefficient; we want lawyers to abide right away. So sanction can be
imposed right away.
i. But doesn’t just have to be because of bad faith conduct. It's also about
justice and efficiency.
ii.If a party doesn’t submit supplemental discovery timely, they may be barred
from using that info at trial (like revealing the name of a witness, then can’t
use witness at trial).
Pros Cons
Real-time follow up and interactions. May be time consuming, especially
Lawyer can ask specific questions, and if not organized or ignorant.
follow up if answers are evasive, or if However, can be effective time
answers open up new avenues of
spent if you’ve prepared in advance
inquiry.
& know what to ask.
If you look like you have a lot of info, and Expensive
very organized, looks like he might be
very persuasive to the jury, may
promote settlement.
d. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely
used
i. Lawyer write down the questions and sends to court reporter presiding at the
deposition, and court reporter asks the questions and writes down the
answers.
ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used.
X. Examining Things and People: (rule 34, 35)
a. (Rule 34) Production & Inspection of documents, things, and land - permits
inspection of those things in possession of the opposing party. Now you are doing
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17
your own research instead of letting the opposing party interpret. Gives you a sense
of the action (ex: flurry of emails sends a sense of panic).
i. Docs - any means of recording info incl. emails, photos, videos, etc.
ii.Procedure for requesting docs:
1. From a party - send a Rule 34 request, specifying the docs sought
2. From nonparty- similar request, but presented as a subpoena (Rule 45)
iii.Number of docs requested not limited
1. Very broad requests allowed, b/c you don’t know exactly what info
opposing party has, but then so many docs are available, & only a few
are relevant.
2. Opposing party might object b/c request was too broad, and ask them
to narrow the request. The requester might be suspicious then that
opposing party is seeking them to narrow the request so as to insulate
the production of relevant and damaging evidence.
iv.Rule 34(b) requires that docs are produced "as they are kept in the usual
course of business or shall organize and label them to correspond with the
categories of the request.”
b. (Rule 35) Physical & mental examinations:provides for a special application to the
court and a showing of "good cause." This is limited b/c it’s considered intrusive
(see Privacy).
XI. Requests for Admission (Rule 36): Asking your opponent to admit things
a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an
issue out of controversy
b. If you ask for a question that’s central to the claim, how can party respond to this if
that’s why you’re here. Court may deem something admitted if time has lapsed.
Some courts though only hold it admitted if it’s a peripheral issue, not a core one.
XII.Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to
supplement discovery responses "seasonably."
a. What must be supplemented?
i. Correct errors - if previous answer was incorrect when made or correct when
made but no longer true under circumstances such that a failure to amend
would constitute knowing concealment
ii.Disclose when potential new witnesses are identified
iii.Supplement previous production, even if previous was merely incomplete
b. "Seasonably" - Court may order specific intervals of time to produce supplemental
discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably
means, but if court decides you didn’t supplement seasonably, you can be
sanctioned.
c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed
without first issuing a discovery order. This is to make sure if a lawyer doesn’t want
to comply, thinking if he'll have to then he will, to not abide until discovery is
ordered (they might do this so as to give opposing party no time to investigate that
info). This is inefficient; we want lawyers to abide right away. So sanction can be
imposed right away.
i. But doesn’t just have to be because of bad faith conduct. It's also about
justice and efficiency.
ii.If a party doesn’t submit supplemental discovery timely, they may be barred
from using that info at trial (like revealing the name of a witness, then can’t
use witness at trial).

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POSSIBILITIES & LIMITS OF DISCOVERY
I. Relevance and Privilege - Rule 26(b)(1) gives the parties a right to discover "any
matter, not privileged, which is relevant to the subject matter involved in the pending
action (or you could say any matter that is relevant to the claim or defense).
a. Relevance - To be discoverable, information must be relevant. Relevant means
that the information tends to prove or disprove something that matters according to
the applicable substantive law.
i. Blank v. Sullivan & Cromwell
1. Facts: Suit alleges sexual discrimination practices in hiring associates.
Pls want Dfs partner selection criteria. Df says material is irrelevant b/c
Pl only alleges discrimination in hiring as an associate, not a partner.
2. Outcome: Rule 26 says discoverable material also includes that which
may reasonably be calculated to lead to the discovery of admissible
evidence. The info on partner selection criteria may show a pattern or
be reflective
3. Notes: Court will usually just give the doc request if only problem is
relevancy; it can be sorted out later. However, if there’s irrelevancy
coupled with another issue like burden, harassment, public policy, etc.,
then they may say, no to the request.
ii.Steffan v. Cheney
1. Facts: Steffan was discharged from naval academy when he admitted
he was a homosexual, and he brought this suit seeking the equitable
remedy of being reinstated (can’t be discharged just b/c you say you’re
gay). During deposition he was asked if he ever engaged in
homosexual conduct while in naval academy, which would be a valid
reason to discharge him. Steffan refuses to answer b/c he says it’s not
relevant.
a. The court dismisses the claim b/c he refused to answer. It gets
appealed – you can’t appeal a discovery order until the end of
the case, but here it happened b/c dismissal was based on a
discovery issue.
2. Outcome: The action here is based on the unlawful discharge b/c of a
statement made that he was gay. His homosexual conduct is irrelevant
b/c it was not the basis for his discharge.
b. Privilege and Trial Preparation Materials [Rule 26(b)(3)] - Ordinarily, a
party may not discover docs and tangible things that are prepared in anticipation of
litigation or for trial. However, subject to Rule 26(b)(4) on Expert testimony, that
material may be discovered if they are discoverable under Rule 26(b)(1), or that the
party seeking those materials shows they have substantial need for them, and
cannot w/o undue hardship get it otherwise.
i. Hickman v. Taylor (Rule 26b3 was not effective at the time of this case)
1. Facts: Accident w/ tugboat, 5 of 9 crewmembers die. In anticipation of
litigation, tugboat owners took statements from surviving 4 & others
who may have info. Pl brought wrongful death action and asked for
those statements. Dfs refused saying they were privileged matter
obtained in preparation for litigation.
2. Outcome: Discovery of written materials obtained or made in
preparation for litigation are not subject to discovery where the party
seeking discovery has not made a showing that the info requested is
necessary and that denial of discovery would unduly prejudice that
party's case. These were statements made from known witnesses, and
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Pls could have also taken statements from them. Discovery of the
attorney’s work product made be permissible when necessary, but only
when alternate method of acquiring this info is unavailable.
II. Expert Information
a. Rule 26(a)(2) requires, as part of initial disclosures, info about experts who may
testify and about the basis for their testimony. The adverse party receives a written
report made & signed by expert witness.
b. Rule 26(b)(4) provides for additional discovery from experts. The Rule requires that
testifying experts submit to pretrial deposition but erects special barriers around the
opinions of nontestifying experts.
i. Testifying experts – everything is discoverable, and you're required to disclose
ii.Nontestifying experts – They are more like consultants, and getting this info is
encouraged b/c a lawyer probably won’t know specific info on the subject.
The statements are not going to be brought into trial. Only benefits the
adversary system if consultant is free to give honest opinion.
1. So the Rule says not discoverable unless there are extraordinary
circumstances.
a. Rare, b/c most likely, both parties have equal access to such
types of experts
2. The rule is written in such a way that the reqs are hard to meet. This is
b/c we don’t want this to be discoverable. Policy reasons for this:
a. Interest in allowing counsel to obtain expert advice without fear
that every consultation will give the opponent a potential source
of advantage
b. It would be unfair to allow one party to benefit from the efforts
and expense incurred by the other in preparing a case
c. Allowing compulsion may deter experts from serving as
consultants - they may not want to go to trial
c. Thompson v. The Haskell Co.
i. Facts:Pl brought action against former employer, alleging that she was fired
when she didn’t acquiesce to his sexual advances, and that she suffered
depression as a result. 10 days after she was fired, she was examined by a
Dr. Df now asking for copy of report that assessed her mental & emotional
state from Dr. Pl refuses, claiming this is not discoverable, b/c he’s a non-
testifying expert.
ii.Outcome:Rule 26(b)(4) says info from a non-testifying expert is not
discoverable unless there are exceptional circumstances. Here, there were
exceptional circumstances. The report is highly indicative of her state after
her termination (only 10 days after), which is very important for the case (to
prove if the firing caused such distress). Also, there was no way Df could get
this info otherwise. The suit was filed long after, so another examination
could not prove anything.
d. Chiquita International Ltd. v. M/V Bolero Reefer
i. Facts: Chiquita hires Reefer to ship their bananas; Reefer lost and damages a
lot of bananas (spoilage). Chiquita sues, and gets a non-testifying expert to
inspect the ship and cargo shortly after. Reefer then tries to get expert’s
testimony (deposition), but Chiquita refuses b/c he’s exempt as a non-
testifying expert.
ii.Outcome: Falls under Rule 26(b)(4) – a non-testifying expert hired to conduct
investigation in prep for trial. Doesn’t fall under the exceptional
circumstances as Df says b/c Df was fully able to get that info themselves.

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Can’t depose non-testifying expert, however, Df still has access to docs (docs
not exempt just b/c conveyed by a non-testifying expert).
III. Privacy: (Rule 35) Physical & mental examinations: a court order for mental or physical
exams requires an affirmative showing by the party requesting the order that each
condition for which an examination is sought is genuinely “in controversy,” and that “good
cause” exists for ordering each particular examination.
a. Schlagenhauf v. Holder
i. Facts: Bus accident; lawsuit follows. All parties blaming each other. One party
alleges bus driver was negligent, and requests a whole bunch of medical
examinations (including eye test, but including other physical exams as well).
ii.Outcome: Driver did not assert any such condition as a defense or claim – it
was the opposing party seeking it. Rule 35 requires that a party requesting
medical exams has adequately demonstrated that the condition on which the
exam is sought is in controversy and that there is good causefor ordering
each particular exam. There was nothing that justified such a broad internal
medical exam.
1. Also, allowing such broad exams could result in a “fishing expedition”
where they look for anything and then try to say that was the cause of
the accident (can be exploited).
iii.Concurrent/Dissent: Eyesight is an important factor in car accidents, so this
exam should be pursued at least to make sure that this was not the cause.

ENSURING COMPLIANCE AND CONTROLLING ABUSE OF


DISCOVERY
I. Discovery Abuses
a. Too little discovery ("stonewalling") - occurs when one party refuses or resists
appropriate requests for discovery. The Rules have partial solutions for this:
i. Refusal to cooperate with justifiable discovery requests can subject a party to
sanctions
b. Too much discovery - When one party seeks more discovery than the case justifies
so as to discourage or hamper the opponent. The Rules have partial solutions for
this:
i. If info requested is irrelevant or privileged, one may simply decline to answer
ii.Discoverable material is limited to a "matter relevant to a claim or defense,"
but a judicial order can broaden that scope if necessary
iii.Rule 26(g) - lawyer's signature & states that the discovery is not
"unreasonable or unduly burdensome or expensive, given the needs of the
case," & there are sanctions
iv.Rule imposes mechanical limits - 25 interrogatories, and a single 7 hour
deposition of each witness
c. Mismatched discovery - When the 2 parties have significantly unequal wealth; the
richer party, even if it does not abuse discovery, may seem to have an unfair
advantage. Rules don’t address this problem specifically. Some remedies may be:
i. Party with fewer resources has option of conducting discovery from public
sources (govt or public docs), and the internet has made this research faster
& cheaper too.
ii.You may be able to "ride free" other side's discovery efforts - wait & get info
at deposition

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1. However, Rule 5(d) made this harder to do: it forbids parties from filing
any discovery materials with the court until they are used in
proceeding.
2. Courts did this to save space in doc storing. But it may curtail the ill-
funded party.
iii.Other remedies:
1. Rule 26(c) permits any party to seek a protective order. That rule
permits the court to limit discovery, even though the info sought may
otherwise be discoverable, if it would produce "annoyance,
embarrassment, oppression, or undue burden or expense."
2. Rule 16 - discovery conference. Involves judge in framing of a
discovery plan. Court may convene on its own motion (if judges wish to
do this).
3. Basically, the remedies consist of 3 tools: limits on discovery, sanctions
for bad behavior, and judicial supervision.
II. Remedies: Management and Sanctions - Ultimate incentive to comply w/ discovery
obligations - court's power to punish violations of the discovery rules. Sanctions aren’t
limited to fines, and when seeking a sanction, you would look for one tailored to the
misconduct, and what the litigation needs and purposes are. Even though judges have
many options on how to punish this, many discovery violations aren't punished.
a. Reason 1:Judges will accept delays & excuses until they no longer endure it
b. Reason 2: Judges are reluctant to punish b/c it may add to the burden of discovery
c. Reason 3: Difficult for judges to figure out which side is being unreasonable in a
particular dispute. Discovery disputes tend to be very fact-intensive and time-
consuming for judges.
i. Thompson v. Department of Housing & Urban Development
1. Facts: Objecting to a discovery request b/c it’s overbroad.
2. Outcome: When there are difficult questions regarding the scope, it
becomes very time-consuming for the courts to determine what’s right
under Rule 26. Therefore, the court says that the parties should get
together and compromise in good faith. Parties should focus on the
burden/benefit factors of Rule 26(b)(2), and weigh it out with each
other. If an agreement can't be reached, then the court will step in.
III. Poole v. Testron, Inc.
a. Facts: Product liability suit, and Pl moves to get attorney’s fees and expenses as
sanctions against Df for discovery violations.
b. Issue 1: Whether the Df’s actions warrant sanctions.
i. First look at whether there was a violation of discovery – yes.
1. Rule 36 - under the plain language of this rule, a party must either
lodge an objection or an answer, not both
a. Df sabotaged the request for admissions - in almost every
answer they both objected and answered, and you can't do both
- basically trying to confuse Pl.
2. (Rule 30 & 31) In response to Pl's request for docs, Df didn’t perform an
adequate search
3. (Rule 26(g) ) Counsel for Df (although he signed the docs) did not
conduct "reasonable inquiry." What is reasonable is a matter for Court
to decide based on circumstances.
ii.Then, ask whether the "opposing party's nondisclosure, response or objection
was substantially justified, or that other circumstances make an award of
expenses unjust."(Rule 37(5)(A)) – No.

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1. Df argues that it has cured those discovery issues, and has spent $23k
doing so, so it would be unjust to impose sanctions. (trying to use Rule
37(5)(A)(iii) - "But the court must not order this payment if […] other
circumstances make an award of expenses unjust."
a. But court says that if the only sanction for failing to comply with
discovery rules is having to comply with them if you're caught
defeats the purpose of imposing sanctions. Parties would try not
to comply, and then only comply if they're caught - this is unjust.
c. 2nd Issue: What sanctions should the court impose?
i. Rule 26(g)(3) - "[court shall impose] an appropriate sanction which
mayinclude an order to pay the amount of reasonable expenses incurred b/c
of the violation, including a reasonable attorney's fee." Court is not limited
on how to impose sanctions, but need only use discretion in imposing an
"appropriate" one.
1. Although court did not find bad faith in Df's discovery violations, still
needs to impose sanctions. Prejudice to other party - delays and
disadvantages. May cause other party to do work not necessary if
there was proper discovery.
a. They might find out they don’t need to explore a specific area,
etc.
b. Delay in info may cause unoffending party to do additional
analysis after
d. Therefore, court concludes that attorney's fees and other expenses requested are
justifiable.

DETERMINING JURISDICTION THROUGH DISCOVERY


I. On one hand, determining jurisdiction often depends on developing facts about the Dfs
contacts with the forum (International Shoe). However, a challenge to a court's jurisdiction
questions the court's power to order disclosure of the very facts on which jurisdiction may
depend (Catch 22 - circular reasoning).
a. So, what happens when a party challenges discovery orders based on jurisdiction?
b. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee
i. Facts: Pl brought suit in PA on an insurance claim. Df’s are foreigners and
challenged PJ. Pl responded by making certain requests for discovery, but Df
refused saying it was too burdensome. Court ordered discovery, Dfs refused,
and as a sanction, court entered a finding for PJ. Df argues that this violates
due process. Until a court has jurisdiction over a party, that party need not
comply with any orders from the court (including discovery orders).
ii.Outcome: Not an abuse of discretion. There was good reason to believe PA
had jurisdiction:
1. Pl had docs showing it (prima facie min contacts) – they weren’t just
requesting docs in discovery in hopes of finding something (no fishing
expedition here)
2. Df had raised a defense – once you raise a defense, other side should
be able to test it.
3. They didn’t have to answer the complaint, but since they chose to they
waived it.
4. Court says anyway, there are other ways to get PJ here:

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a. A sanction under Rule 37 applied to establish PJ creates no more
of a due process problem than a Rule 12 waiver (which says PJ
can be waived if not timely objected to – both procedural, and
use of procedural rules does not in itself violate due process).
b. The preservation of due process was secured by the
presumption that the refusal to produce evidence material to the
administration of due process was but an admission of the want
of merit in the asserted case.
iii.Concurring: there was the prima facie case for min contacts, so when Df
failed to comply with discovery requests, ok for court to find min contacts
existing under Rule 37, waiver or assumption. However, the due process req.
of PJ to important to just waive it.

RESOLUTION WITHOUT TRIAL

CURTAILED ADJUDICATION
I. Default and Default Judgments (Rule 55) - If a defendant fails to respond to a pleading
within the time designated for response, he is in default and subject to entry of a default
judgment.
a. FRCP 55(c) authorizes the court in its discretion to set aside an entry of default upon
good cause shown.
b. Peralta v. Heights Medical Center
i. Facts: Peralta owes money to Medical center, and was personally served, but
it was untimely. Peralta never appeared or answered, and default judgment
entered against him. Without Peralta’s knowledge, his property was
confiscated and sold to pay for the judgment. Peralta tries to set aside the
default judgment and obtain relief, saying service of process untimely. Texas
law says Peralta must show, among other things, a meritorious defense. So
even though there was defective service, rejects b/c no meritorious defense.
Goes to Supreme Court.
ii.Outcome: B/c there was no meritorious defense, the same judgment would
be entered on retrial, so Texas court assumed no harm from judgment
entered w/o notice. SC says no, service of process too fundamental to be
waived. If notice was good, Peralta could have done other things –
settlement, paid the debt, sold property on his own (at true value, rather than
at auction which is what happened here.)
II. Failure to Prosecute: Involuntary Dismissal - remedy for the defendant when the
plaintiff fails to prosecute her claims or to obey court rules or orders. Disobedience that
would justify dismissal also often consists of litigation delays, or failures to appear,
respond or take other required action. [Rule 41(b)].
a. Because the involuntary dismissal is based on the facts of each case, it’s hard to
pinpoint the legal standards courts use to do it. Also, courts rarely explain why they
have dismissed a case,
b. Some states impose absolute deadlines to deal with less than diligent plaintiffs.
Even so, there's a lot of litigation over whether the opposing party has expressly or
impliedly waived such a deadline.

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c. Default judgments and involuntary dismissals may present both claim and issue
preclusion issues if Pl starts over or if there is litigation on a closely related matter.
i. Dismissal based on Pl’s failure to satisfy SMJ, venue, joinder of a party doesn’t
operate as adjudication on the merits.
III. Voluntary Dismissal - FRCP 41(a)(1) provides that the Pl may dismiss once without leave
of court by filing notice of dismissal before Df answers or motion for summary judgment,
or if all parties who have appeared agree in writing to dismiss.
a. Otherwise, it’s judge’s discretion to allow it.
i. Usually a judge won’t allow it if its b/c Pl realizes they'll lose on the merits.
ii.But if it’s a procedural ruling that's making Pl's case more difficult, it's harder
for court to decide whether or not to allow it.
b. A voluntary motion to dismiss the complaint doesn’t cut off Pl’s right to nonsuit
unless the motion is converted into a summary judgment motion (like if they agreed
per settlement to enter a summary judgment order, etc.). Also, if Pl had already
dismissed same claim once be4, the 2nd dismissal operates as an adjudication on
the merits (and Pl can’t file again).
c. Why are cost-free voluntary dismissals permitted?
i. Made sense at common law, b/c gave Pl opportunity to replead if they filed
wrong writ.
ii.This doesn’t matter anymore, but we still have it to give Pl a chance to
consider changed circumstances (to settle, etc.)
d. Many courts require Pls seeking voluntary dismissal to pay Dfs attorney's fees as a
condition of granting the motion.
IV. Summary Judgment: Rule 56 provides that such motions are to be granted when “there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law."
a. Must be no issue of fact; even if story is improbable, still entitled to bring to jury.
i. Arnstein v. Porter
1. Facts: Pl alleged music plagiarism. Df moved for summary judgment,
after bringing the music for court to see there could not have been
plagiarism b/c not similar. Pl also has a long record of suing
unsuccessfully suing for plagiarism. Summary judgment granted.
2. On appeal, court looks at Rule 56, and has to determine whether there
is a slightest doubt as to the facts, b/c then Pl entitled to jury trial.
Court says even though it’s probably frivolous and improbable, a jury
could find for him, b/c this is a question of fact whether the music is
similar or not. Pl right to jury trial.
ii.Repp & K&R Music v. Webber
1. Facts: Pl alleged copy infringement. Df counterclaims for same. Lower
court granted summary judgment b/c they concluded the songs
weren’t really similar, and b/c it was highly improbable that Webber
had access to Repp’s songs to be able to copy them.
2. On appeal, court says that no matter how predictable a conclusion
might seem, a reasonable jury could decide otherwise, and Repp is
entitled to battle it out in a jury trial. Judge can’t act as a factfinder –
that’s for the jury.
b. If the dispute of fact involves evidence that is not admissible at trial, then he may
grant summary judgment (b/c no question of fact for jury anyway).
c. A party may be entitled to summary judgment by showing that the party bearing
the burden of persuasion at trial will not be able to prove an element essential to its
case, based on the record.
i. Celotex Corp. v. Catrett

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1. Facts: Widow brings wrongful death, alleging that her husband’s death
resulted from products containing asbestos, and is suing 15
corporations that manufacture those products. Summary Judgment
for Dfs, Pl says she doesn’t have the burden.
2. Rule 56 mandates an entry of summary judgment when a party who
would have the burden of persuasion at trial, fails to establish sufficient
showing of material fact in discovery. The court here says the burden
is on the moving party (party asking for summary judgment) to show
that there is an absence of genuine issue of material fact in the
nonmoving party’s case.

AVOIDING ADJUDICATION
I. Alternative Dispute Resolution (ADR) - With info from discovery, parties may decide
they wish to avoid litigation. ADR depends on law for effectiveness. Parties basically
contracted to not litigate and instead use ADR, so courts will enforce it. Trial serves as a
default if they can’t agree.
a. Magistrates may conduct arbitration. They may have close judicial relationships.
i. ADR and litigation are not 2 separate systems
II. Negotiation and Settlement:
a. Settlements are faster & cheaper, but some argue they are also more qualitative b/c
consent is a basic principle of justice, and b/c settlements can take account of
nuances and subtleties in the facts and in the parties' interests that would be lost at
trial.
i. Other side of argument: settlement leaves parties less satisfied than if a trier
heard their stories, permits might to triumph over right, and deprives the
public of definitive adjudication of issues that may reach beyond the
individual case.
b. Lawyers use settlements for at least 2 reasons:
i. A party may run out of funds to pursue litigation. Settlement may be better
than getting nothing, in the event the case is dismissed, or if you get stuck
with a default judgment, or no funds.
ii.More importantly: settlements control risk. Trial outcomes are risky.
1. They are significantly unpredictable and tend to be all-or-nothing
2. Trial is expensive
c. Freedom to settle: Judge doesn’t need to approve it, though they do grant a request
for dismissal if that's part of the deal. The court won’t look at substance of
settlement agreement b/c it intrudes on the autonomy of the parties.
i. There’s an issue of Efficiency vs. fairness (must compromise):
1. Problem: Pls needing money right away may settle meritorious claims
for trivial sums; Dfs eager to end it may offer meritless or fraudulent
Pls substantial sums just to end litigation.
2. Legislatures can build procedural protection into settlements of certain
kinds of claims
3. Although not required for judges to approve settlements, they can still
be attacked on any ground that you would attack a contract (a
settlement is a contract): fraud, duress, mistake, incapacity,
unconscionability, etc.
ii.Exception to "freedom to settle" arises in:
1. class actions: Rule 23(e) requires judicial approval of settlements
2. Cases involving minors: court is required to approve settlements
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3. Some multidefendant cases
d. Contracting to Dismiss - Simplest form of settlement is a contract (or release) - P
agrees not to bring the lawsuit or drop one already filed. Usually something is given
in exchange, like money.
e. Settlement and Voluntary dismissal v. involuntary dismissal
i. Voluntary dismissal - allows Pl to refile the suit. So the settlement agreement
will say that Pl must refrain from refiling this or any related lawsuit.
ii.Involuntary dismissal - this may be an advantage to Dfs. B/c it's on the
merits, a Pl would be barred from filing another suit (prior adjudication), plus
they still have the settlement agreement that says they can't.
iii.If you have a simple dismissal with prejudice, if settlement is breached, it's
handled as a breach of contract case. But, if there's actual judgment, it's
easier to get breaching party to comply
1. court will enforce it rather than having to file another, separate suit for
breach of K
f. Some forms of partial settlement doesn’t end the lawsuit, but actually guarantees
litigation
i. Parties can agree to liability, but damages will be decided by court.
ii.Or the opposite - liability question to jury, and jury chooses damages based
on an agreement the parties made (min and max).
1. The min damages amt agreed on helps the Pl, b/c they get this even if
they lose
2. Max amt agreed on helps the Df, b/c that's all they'll pay if they lose
III. Third-Party participation in Settlement: Facilitation, Encouragement, and
Coercion
a. Settlement negotiations sometimes fail. Causes:
i. Divergent estimates of the outcome
ii.Bad communication
b. Mediator - helps with communication; parties agree to go to help them with a
settlement. However, this is not binding – parties still have to agree. Mediator
succeeds only if parties agree
1. Engages the parties in a structured set of discussions leading to
agreement
2. Courts and legislatures in some cases have established mandatory
mediation
ii.How might mediators proceed?
1. "Positional" meditation - Ask parties how much (or little) they would
accept to settle the claim. This can be useful when parties don’t want
to disclose their true settlement figures. The 3rd party is neutral, and
looks at both, and finds a middle ground.
2. "Interest" mediation - try to discover the parties' goals, defining these
less in monetary than in other terms. The ultimate goal is to create a
settlement btwn 2 parties who want a settlement badly enough to get
a mediator, but can’t do it themselves. Or if parties know they will
eventually have to come to an agreement.
iii.Mediator doesn’t propose a settlement – his goal is just to help the parties
reach an agreement
1. Ethics problem – event that settlement seems unfair to mediator
a. Mediator’s job is only to help them agree, but mediator's goal is
to repair relationship for the long term, and if mediator thinks
agreement may fall apart, then he didn’t do what he was hired

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for. Mediator's role is to solidify relationship in the long-term.
Keep them from having future disputes.
iv.A statement of fact during mediation can be introduced as evidence if
mediation fails & they go to trial.
v.Judges' role in mediation
1. Rule 16 has a list of techniques that establishes as one of its objectives
"early and continuing control so that the case will not be protracted b/c
of lack of mgmt.
2. ADR Act of 1998 requires federal judicial districts to offer the parties,
even after they have filed suit, alternatives to litigation, such as
mediation or non-binding arbitration.
c. ADR:
i. Early neutral evaluation - Parties tend to be overly optimistic on how their
case will turn out. So by presenting a brief statement of the case to a neutral
party who assesses the case's strengths and weaknesses, parties will end up
having more realistic negotiating positions.
ii.Nonbinding arbitration - as a condition of going to trial, parties are required to
present their cases to an arbitrator, who issues a decision. But, parties not
bound by it unless they accept it. Party can still insist on trial w/o penalty.
Some states provide that if the party insisting on trial, does no better at trial
than in arbitration (even if he wins), will be liable for costs (like expert
witness fees, or arbitrator's fees)
iii.Summary Jury Trial- a small jury is chosen, and parties present case to jury in
very concise form (lawyers would narrate what evidence will show w/o calling
witnesses, etc.). Jury enters a verdict, but it’s not binding. Only serves as a
basis for further negotiation. Makes parties better informed about what
results might be at trial, so settlement is more informed.
IV. Contracting for Confidentiality - One settlement goal of many D's, and some Ps, is
confidentiality
a. Usually means not letting case be known to public, but mostly the info or docs to be
kept confidential.
b. May be the most valuable bargaining tool P has. P may have discovered outrageous
misconduct.
i. Good for the party, but not for public, b/c maybe public should know about
this! Maybe this info should belong to public not to the P. (ex. Product defects
- public should know this).
ii.Certain types of cases require judicial review b/c it’s so important for public
knowledge (some discrimination cases, etc.)
V. Contracting for Private Adjudication – You can agree before dispute arises (by
contract) or after (if parties can’t agree, even with a mediator).
a. Arbitration: private, nonjudicial adjudication. Why arbitration instead of court trial?
i. Permits the parties to design their own procedure (including discovery)
ii.Parties (to a greater extent than in courts), control the applicable substantive
law
iii.May be faster, cheaper, efficient
iv.You can get confidentiality
VI. Arbitration Clauses – Courts normally will enforce arbitration clauses; it’s fair and a good
forum for resolution.
a. Limitations:
i. Nature of claims that can be arbitrated

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1. If public interests are involved, and if resolved in a private forum, these
interests are not assured to be satisfied (fed statutes likes the Civil
Rights Acts)
2. Congress may have intended a statute to be mandate a judicial forum.
ii.Nature of the arbitration process - Court may also refuse arbitration if its
involves procedural unfairness in the arbitration process

THE JURY TRIAL

JUDGE OR JURY: THE RIGHT TO A JURY TRIAL


I. Preference for a jury trial. Don’t want to try same claim twice, so court will try to give you
jury trial first.
a. Benefits of a jury trial – We think we'll get a justice that's linked to community's
standards of justice (diversity in the community). Giving power to the people
b. Downsides of jury trial:
i. Jury may be less competent to do certain types of factfinding than a judge
ii.Bias - prejudices of the community (may be hostile to one side, and favorable
to the other)
iii.Expensive - jury trial is longer and more complicated than a non-jury trial
II. Historical Reconstruction and the Seventh Amendment
a. 7th amendment - in suits at common law, […] the right to a jury trial shall be
preserved
i. This doesn’t specify the scope of the right being preserved
III. Historical test for deciding a right to a jury trial under the 7th amendment
a. Courts seek to give parties same rights to jury trials as they had in 1791, where
there was no right to a jury trial in equity. So, courts applying this test don’t
directly inquire about a jury trial, and instead ask whether a given claim lays within
the jurisdiction of the common law courts in 1791.
b. Applying the Historical Test to New Claims – When a situation arises that did not
exist in 1791:
i. Chauffeurs v. Terry
1. Facts: Pl suing union for breaching their duty of fair representation in
regards to issues union member were having with employer. Pl wants
jury trial; Df says no right to jury trial in a duty of fair representation
suit.
2. To apply the historical test, court gives a 2-part test:
a. Compare the action here to one that existed in 1791, then
decide if it would have been considered in equity or in law.
i. Is transaction more similar to attorney malpractice (legal)
or action for breach of trust (equitable)? Court says that
although similar to trustee duty, here there was also an
underlying breach of K issue (right to jury depends on fact
of each case). So this test didn’t work here.
b. Look at the remedies sought to determine if equity or law.
i. B/c they weren’t properly represented, they sought
damages for wages lost etc.; this is more like legal

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malpractice – what you would have gotten had work been
done properly.
c. Applying the Historical Test to New Procedures - FRCP says that cases that were
formerly either equitable or legal could now arise in one suit. But how was right to
a jury trial in the new merged procedure (merger of law & equity)? Right to jury
trials is given preference – it’s too important.
i. Beacon Theatres v. Westover
1. Facts: Beacon tells Fox can’t perform Ks b/c violates anti-trust. Fox
asking for declaratory relief that K doesn’t violate anti-trust, and for
injunction against Beacon from filing a suit on anti-trust until His
declaratory relief suit resolved. Beacon answered and counterclaimed
on the antitrust violations. Beacon wants jury trial on antitrust issues
(facts).
2. There’s a constitutional right to a jury trial, and courts try to preserve
this right. Doesn’t matter that equitable claim came first. If issues are
both equitable and legal, then jury trial cannot be dispensed with
unless all parties agree. There’s no similar requirement to protect
trials by courts.
IV. The Jury's Integrity: Size, Rules of Decision, and the Reexamination Clause
a. In 1973, SC constitutionalized 6-person juries - now it’s very widespread. Very
controversial:
i. Smaller jury is less average, less representative
ii.Less likely to include any given point of view or social characteristic (race,
politics, etc.)
iii.More likely to render unusual verdicts that larger juries
b. Fed system - unanimous verdicts required unless parties agree otherwise (rule 48)
i. Some states permit non-unanimous verdicts
ii.Rules on unanimity result in more hung juries
1. But where verdict has to more unanimous, juries may discuss issue
more fervently and more detailed
c. Becoming more common for court to overturn jury verdicts. Constitutional
implications here:
i. 7th amendment says "no fact tried by jury shall be otherwise examined by
any court, than according to the rules of common law" (reexamination
clause). But still, courts have power to overturn jury verdicts.
V. Right to a Jury Trial (Rule 38) – demands that the right to a jury trial, per 7th amendment, is
preserved
a. Any issue that triable by a jury – party may demand it by serving adversary w/
written demand (which may be in the pleading, or filing the demand.
i. Parties may specify the issue they want tried by a jury; default is that all
issues are tried by jury.
b. Jury trial is waived unless demanded. Demand may be withdrawn if all parties
consent.
VI. Trial by Jury or by Court (Rule 39) – when jury trial has been demanded, it must be given
unless parties agree otherwise, or court finds that the issues are not triable by a jury (no
fed right to jury).
a. No demand – then no jury. But court may issue a jury trial when it could have been
demanded.
VII.Rule 48 – requires at least 6 and no more than 12 jurors, & each must participate unless
excused. Unless stipulated otherwise, verdict has to be unanimous.

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CHOOSING JURIES
I. Constitutionality of Jury Selection
a. Until recently, juries didn’t consist of a demographic cross section (racial minorities,
women, etc. not included). Now, different. Unconstitutional to discriminate based
on race, sex, etc.
b. Most jurisdictions have statutes that require jury selection pools to represent broad
cross sections of the community.
II. Assembling a Pool of Jurors: Choosing a jury involves 2 phases:
a. A pool of prospective jurors is summoned
i. Strives for inclusiveness
ii.§1861 - entitles litigants to a jury selected at random from a fair cross section
of the community
1. Can use lists such as voters' rolls, telephone books, etc. - all would
yield substantially diff characteristics
b. Rule 47 permits parties or attorneys to examine jurors through voir dire questioning,
and allows for excusing jurors for cause, and for parties to eliminate jurors uses
peremptory challenges.
i. Questioning may be conducted by court, parties or both (rule 47(a))
III. Challenging for Cause - Litigants want (and are entitled to) an unbiased trier.
a. Potential jurors are questioned, and some may be disqualified.
b. Each party may challenge any juror for cause. They seek to convince the judge that
juror is not qualified to serve.
i. Mostly if juror knows litigant, there are excluded. Other than that very hard to
challenge a juror for cause.
ii.Also question jurors to uncover possible bias or prejudice (otherwise it would
be a violation of due process)
c. Jurors may lie. Don’t check the info, so lies only really found out by chance. If this is
the case, you may challenge a verdict on the basis of inaccurate answers on voir
dire.
i. McDonough Power Equipment v. Greenwood
1. Facts: tort action where Pl was severely injured. During voir dire, jurors
asked if them or immediate family suffered a similar accident that
resulted in a disability, or prolonged pain and suffering. Found out after
verdict came back for Pl that one of the jurors’ son was injured in tire
explosion. Juror did not respond b/c he didn’t think it resulted in a
disability or prolonged pain and suffering (good faith mistake).
2. Outcome: Court said that to obtain a new trial in such a situation, a
party must first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for cause.
Also notes that although juror may have various motives for concealing
info, but only those reasons that affect a juror's impartiality can be said
to affect the fairness of trial.
IV. Peremptory Challenges - A peremptory challenge allows lawyers to strike a juror for no
reason.
a. §1870 gives each side 3 peremptory challenges & additional ones if alternate jurors
are selected
b. Court has broad discretion to allocate these or to permit additional challenges in
multiparty actions
c. Justification for peremptory challenges:

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i. Allows parties to choose jurors - so parties will be more satisfied with the
verdict
ii.Party may believe a juror should be disqualified, but can’t do it via challenge
for cause (most often it’s a failed challenge for cause).
iii.Party may have offended that juror through vigorous questioning; they may
now be biased against that party. May be convinced juror is unlikely to vote
for you.
d. Downsides of it:
i. May conflict with ideals of a cross-sectional jury
ii.A lot of times its on the basis of stereotypes (hunches)
iii.Court imposes limits on this when it comes to race (if party is using these
challenges to strike black jurors w/o justification - may violate a right to equal
protection)
1. Edmonson v. Leesville Concrete Co.
a. Facts: Pl is black. Df used 2 of 3 peremptories to remove black
jurors. Pl requested a race-neutral explanation for this.
b. Previously, race-based peremptories were not allowed in
criminal cases b/c it violates the constitution if govt agency
discriminates based on race. Court says this also applies to civil
cases w/ private litigants b/c the use of peremptories is a
function of the judicial process. Helps the govt get jurors, and
also govt gives the authority to do this.
c. Rule: Race based exclusion violates the equal protection rights
of challenged jurors in criminal as well as private litigation.

CONTROLLING THE FACTFINDER


I. The Limits of Rational Interference
a. The Jury - Can't let trier decide something if not based on substantive law. So the
process ensures judgments that comply with substantive law.
i. Jury has two roles: factfinding body, and the voice of the community as a
temporary, lay democratic institution. Sometimes these roles conflict –we ask
juries to make a decision, that’s a lot more than just factfinding.
ii.Framing procedural rules that give juries sufficient leeway to perform the
political tasks we have set for them w/o irreparably compromising the
rationality of verdicts.
b. Adversarial Responsibility for Proof - We shift the responsibility of providing proof
from the court to the parties. So parties show evidence, and jury decides on the
facts.
II. Burdens – Parties have specific burdens of proof to show. There are 2 kinds:
a. Burden of Persuasion - defines the extent to which a trier of fact must be convinced
of some proposition in order to render a verdict for the party who bears it.
i. Civil - burden is usually the preponderance of the evidence (more
probable/likely than not)
1. criminal - beyond a reasonable doubt
b. Burden of Production - Requires a party to produce, to find and present evidence in
the first place.
i. A party with the burden of production can lose before trial if she fails to
demonstrate, among the facts uncovered by investigation and discovery,
sufficient evidence to allow a rational trier of fact to find in her favor.
ii.Parties will have diff burdens of production on diff issues.
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iii.Satisfying a burden of production means only that a trier might rationally
decide the case in one's favor, but not that it must.
iv.Reid v. San Pedro, Los Angeles & Salt Lake Railroad
1. Facts: Cow killed on RR. Cow’s owner sues RR by either negligently
permitting fence to be broken down and in bad repair, or negligently
leaving gate open. Pl doesn’t know how the cow exactly got onto
tracks. Statute basically says that if the reason cow got onto the
tracks is b/c gate left open, RR not liable.
2. There is no evidence of how cow got onto the tracks. The evidence
only shows that it could have equally been either or. Where the same
evidence supports equally one inference that renders the defendant
liable and another that does not, the plaintiff must fail in satisfying the
burden of production.
III. Controlling Juries Before the Verdict: Defining the boundaries of jury rationale –
control flow of info to jury
a. Judgment as a Matter of Law (Directed Verdict or Motion to dismiss) - Rule 50
permits a party, at the close of the other party's case to move for "judgment as a
matter of law" b/c other party has not shown anything that proves their burden of
production.
i. In doing so, party is asking the judge to take the case away from the jury to
prevent it from considering the evidence and reaching a verdict. The ground
for the motion is that the evidence presented would support only one result.
Rule 50(a) -"there is no legally sufficient evidentiary basis for a reasonable
jury to find for the party on that issue."
ii.Judge can do this w/o a party moving for it. However, you have to make
motion now (at close of other party’s case) or else you can’t make a motion
for JNOV later.
1. Usually judges will defer it (wait until judgment, then grant JNOV is
necessary)
a. Gives jury a chance - they might come to same conclusion as
judge. If case has merit, good chance jury will see it the same
way
b. Don’t want to risk appellate court reversing – there’ll be a whole
new trial and wastes a lot of time.
c. If jury doesn’t return proper verdict, then judge will just issue the
JNOV.
2. Mandatory to make this motion at close of all evidence, but it’s a good
idea to do so earlier – at close of Pl’s evidence.
iii.Issue is when a judge should grant it b/c it always depends on the nature of
evidence provided.
1. Facts may not be so cut and dry; some issues:
a. Credibility - which witness is telling the most convincing story
b. Inference - what conclusions can one rationally draw from
undisputed facts?
c. Evaluation - do the physical facts constitute, for example,
negligence?
d. Substance - for example, is knowledge by the Df an element of
the claim?
iv.Pennsylvania Railroad v. Chamberlain
1. Facts: Suit for negligence that caused death. Witness for Pl inferred
there was a collision (this would show negligence) from what he heard,
not saw. No one actually saw the collision.

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2. Not a conflicting issue of fact here. Pl’s witness never saw anything,
only inferred collision from hearing a crash, which could have been
from anything. No one actually saw a collision. Where the proven facts
give equal support to two inconsistent inferences, judgment must go
against the party upon whom the burden of proof rests.
b. Excluding Improper Influences (Law of evidence) - Assure that jurors will
consider only information screened through the law of evidence (efforts to insulate
jurors from information that might be misleading). Even good faith efforts by jurors
to bring their fellow jurors info not filtered through the evidentiary and adversarial
screen may result in new trials.
c. Instructions and Comment
i. [Rule 51] Instructions explain the substantive law that applies to a case, and
the judge explains in a sequential way the decisions the jury must reach in a
given case (if you find x, then verdict for Pl; if you find y, then verdict for Df).
1. Appellate court will reverse a case if an instruction misstates the law in
a material way.
2. Good idea for lawyer to draft and propose jury instructions, and object
to other side's jury instructions. In an organized courtroom, this will be
handled well in advance on paper. Judge will say in advance which jury
instructions he will give.
a. Important in appeal - if you put in correct instruction and it was
refused, then good appeal case. If you didn’t give the correct
law, and wrong law used, then very hard get appeal, unless for
plain error. You must preserve an objection to the jury charge.
3. Jury instructions are orally given. Hard task for jury to understand the
jury instructions.
ii.Comment (or summing up) - judges may comment on the evidence, but have
to be careful (so they stay neutral). We don’t want judge to trespass into the
jury's autonomous decision-making space (so they’re not influenced unduly)
(English courts very blunt & straightforward).
IV. Controlling Juries After the Verdict: Defining the boundaries of jury rationale -
Controls what jury does w/ info, & prevents them drawing “wrong” conclusions.
a. Judgment as a Matter of Law (Judgment Nothwithstanding the Verdict)
i. Rule 50(b) - Same to directed verdict, but it is requested after verdict.
ii.JNOV is merely a delayed ruling on a directed verdict motion.
1. So for it to be a delayed ruling, there must have been a motion
preceding the submission of the case to the jury (Rule 50(a) directed
verdict).
2. If you don’t make a Rule 50(a) motion before the case is submitted to
the jury, you waive the right to make a Rule 50(b) motion after verdict
has been entered.
b. New Trial - Rule 59 governs the granting of new trials on court’s own initiative
(59(d)) or on a party's motion. Rule 59 doesn’t specify the grounds for which a new
trial may be ordered, so we look to common law. The common law indicates 2
reasons for granting new trials, flawed procedures (which focuses on the procedure
leading up to the verdict), and flawed verdicts (which focuses on the correctness of
the verdict itself).
i. Flawed Procedures - Examples:
1. Judge may conclude that a lawyer has made an impermissible
argument to the jury

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2. On reflection after trial is over, judge may conclude she erred in
admitting a piece of evidence or that she gave the jury erroneous
instructions.
3. Judge may discover that a juror, although he was properly selected,
misbehaved during trial
ii.Flawed Verdicts
1. Judge may conclude verdict was unjustifiable.
2. Most common reason: verdict is against the weight of the evidence
iii.Diff btwn this and JNOV:
1. JNOV - court saying winner of verdict had no evidentiary support for at
least 1 essential element of the claim or defense. JNOV doesn’t result
in a new trial, but of an immediate judgment for the loser of the
verdict.
2. New trial - Standard lower. Judge may grant it when verdict is against
the great weight of the evidence.
iv.Rule 50(c) - permits a party moving for JNOV to make (and court to rule on) a
conditional motion for a new trial. This alternative only comes to play when a
JNOV verdict is reversed or vacated by appellate court. This rule allows a
losing party to make all its post-trial motions at once, for trial judge to rule on
them while the case is still fresh in his mind, and allows appellate court to
consider it all at once.
c. Conditional New Trials - Judge may grant a new trial to a specific issue (like
damages) on same principle as Rule 59. This is a halfway point, so we don’t have to
go through a whole new trial again.
i. New Trial limited to damages - Judge must be convinced that whatever lead
jury astray on issue of damages didn’t affect the judgment on liability as well.
ii.Remittitur and Additur
1. Remittitur - judge orders a new trial unless Pl agrees to accept reduced
damages
2. Additur - judge orders a new trial unless Df agrees to increased
damages
3. Pl can’t appeal if she accepts the remittitur. Pl had a choice: remittitur
or new trial.
4. Constitutionality
a. Supreme Court has held that a Pl must get a choice btwn a new
trial and accepting reduced damages. You’re not deprived of
anything. If you don’t like it, then go for new trial. If you agree to
take less than what jury decided, than that's your decision.
b. Constitutionality (7th amendment) - SC has held that additur
violates the 7th Amendment, but remittitur doesn’t. This is the
law in fed courts, but many states permit additur.
i. Violates 7th b/c additur involves making an award that no
jury has ever made. Remittitur doesn’t b/c it’s merely
modifying a decision actually made by a jury.
iii.Punitive damages - SC held that due process requires judicial scrutiny of
punitive damages awards
V. Notes:
a. Move for mistrial - If Df feels that jury would never fairly judge (like seeing Pl
cry/faint when she sees photos of dead husband). You can do this at any time for
any reason that would be a reason to move for a new trial
i. If judge doesn’t want to abort the trial at this point, he’ll just tell jury to
disregard that

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ii.The action judge chooses to take is discretionary. Appeals court will decide
that decision by trial judge was sufficient to cure the problem
iii.But if you asked for mistrial and were denied, this might warrant you a new
trial (at end of trial). Judge might think, after hearing jury's decision, that he
should have granted mistrial, and will grant the new trial.
b. If other party has won – what do you want to do?
i. Move for JNOV (which is a renewal of previous directed verdict motion)
1. If judge grants JNOV, then judgment for you.
ii.Motion for a new trial
1. Renewal for motion of mistrial
2. Even if mistrial motion never made, motion for new trial is an appeal to
discretion, and it can embrace legal error, or its obvious jury didn’t
follow instructions, or any other reason justice wasn’t done against the
great weight of the evidence.
3. If judge grants a new trial - then you go again to trial. A do-over.
a. Discretion of judge to grant new trial - b/c if judge has to sit
through the whole thing again, then if he grants new trial, then
there must be some good reason to trial the whole case again.
Maybe justice wasn’t done the first time.
c. Even if you won the case, and now the Df are demanding JNOV, you can try to
persuade judge that instead of granting it for Df, ask for new trial, or partial
conditional new trial.

APPEALS

WHO CAN APPEAL?


I. A Losing Party: Adversity
a. If a party wins on one theory but loses on others, can they appeal? - depends on
relief sought
i. If the relief sought under the losing theory was identical to that awarded, no
appeal, even if trial court erred
ii.If rejected theory would have entitled appealing party to more or different
relief - to a different judgment - then you can appeal.
b. This Losing Party principle - problem when party has won a judgment, but a theory
the trial court rejected can have collateral consequences. An appeal may be
permitted.
c. Doctrine of mootness - holds that one may not appeal from a judgment when
circumstances have changed in such a way that relief is no longer possible.
i. Exception: when court decides that even though claim has been satisfied
even though there’s an adverse judgment that the case should be reviewed,
and so is appealable, because other such cases will come up later. Better to
resolve now.
ii.Mootness can also result from settlement. Parties who settle cannot appeal.
Appellate court will not vacate lower court's decision, when parties that settle
request it.
d. Class Actions - although formally only named parties represent the class, a member
can appeal b/c they objected to the settlement.

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II. Who Raised the Issue Below: Waiver – An appellant cannot on appeal use an
argument not made below. An appellee (unless it’s a cross-appeal) can bring up any
argument any argument to support the judgment, even if it attacks the reasoning of the
court below or insist on a matter overlooked or ignored by it.
For efficiency - we want the parties to raise the matters below, so lower court will
judge on these arguments. Even if you did argue the point below, court of appeals
won’t judge on that issue unless you argue it on appeal again.
a. Exception: SMJ - Court can raise this issue at any time even if party doesn’t point it
out.
b. If appellee lost on a defense on a defense or claim below, he must cross-appeal.
Here too, issue must have been raised below in order to use it on an appeal.
c. When there has been a change in law between time of trial and the appeal:
i. Still can't use the new law, the issue should have been raised below.
1. Exception: However, there is some grace here if the change in law is
sufficiently fundamental, but you shouldn’t count on this.
d. Exception: Plain error rule - Idea behind it is that a federal trial judge is assumed to
know the substantive legal rules, and will act accordingly. But this won’t save you
from a failure to object - lawyer needs to keep track!
i. The rule is typically invoked where "the error has seriously affected the
fairness, integrity, or public reputation of judicial proceedings."
1. Balance the principle of fairness to the parties against the correctness
of the result
e. In addition to raising a matter at trial level, counsel will usually also have to raise an
issue in the appellate court for them to consider it.
III. Discouraging Appeals - There is no constitutional right to an appeal in a civil case, but
all jurisdictions still give a party a right to at least one appeal. However, they may try to
discourage parties from appealing by imposing sanctions. Sometimes sanctions (like
penalties) are imposed only if the appeal is meritless or frivolous.
a. But some jurisdictions impose penalties if the party appealing loses again in
appellate court. Supreme court said this was ok, and discussed several reasons they
thought so:
i. Expresses the state's interest in discouraging frivolous appeals
ii.Compensates appellee (who gets the penalty $) for having to go to litigation
again after receiving a verdict
iii.Protects integrity of the judgments by discouraging appellants who only
appeal so that the other party will settle (rather than going through litigation
again)
iv.Gives finality to the trial. Tells parties - this is it. Only appeal if there is a
serious issue to consider.

FINAL JUDGMENT RULE


I. When a Decision May Be Reviewed- A final decision "is one which ends litigation on the
merits and leaves nothing for the court to do but execute the judgment."
a. Appellate Jurisdiction and the Final Judgment Rule
i. The Final Judgment Rule - Can only appeal after a final judgment.
ii.§1291 - contains the final judgment rule, and has 2 functions:
1. Defines the moment at which an appeal is proper (when there is a final
judgment)
2. Grants jurisdiction for the appellate courts to hear the appeal

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iii.Rule 54(b) – provides that a court may direct final judgment as to one or
more, but fewer than all, claims when there are multiple parties or claims.
Otherwise, partial judgments are not final until everything is adjudicated.
1. Liberty Mutual Insurance Co. v. Wetzel
a. Facts: Pls sue on civil rights issue. Court grants a partial
summary judgment only on the issue of liability. Appellate court
said they have jurisdiction to hear the appeal under §1291,
which grants this for all final judgments.
b. SC said that appellate court did not have jurisdiction. Rule 56(b)
says that partial judgments aren’t final until everything has been
adjudicated. The exception is when there are multiple claims or
parties, then final judgment may be entered for some and not all
claims. This was only one claim, so it doesn’t apply. No final
judgment, no appeal allowed.
c. Rule 56(c) specifically defines summary judgment on the issue
of liability are interlocutory. If you give summary judgment, no
final judgment until relief is granted. Remedy might be an
injunction, which is immediately appealable by statute. But here
no injunction granted.
II. Timing and the Final Judgment Rule
a. Too late - notice of appeal must be filed within 30 days of final judgment
i. This is important b/c time limits are jurisdictional - meaning that appeals
court has no jurisdiction to hear it if the appeal is too late
ii.Trial judge can extend the time who for a party who didn’t receive notice of
the judgment in question if no prejudice to other parties results
iii.District courts can extend the time up to 30 days o showing of "excusable
neglect or good cause"
b. Too early - you can only appeal from a final judgment, not earlier. If premature, will
be dismissed.
i. Usually the problem occurs if there is a verdict, but it's pending a post-trial
motion like JNOV.
1. In this situation, party seeking the appeal for an order that would be
final but for a post-trial motion, the appeal is held in abeyance until the
disposition of those motions.
c. Because of issue with determining at what point a judgment is actually final, Rule 58
requires the courts to use set the final judgment on a separate document to make
this clear. But, courts don’t follow the rules.
d. A judge announcing his intent to apply a judgment, doesn’t constitute final
judgment.
III. Exceptions to the Final Judgment Rule
a. Practical Finality and Collateral Order Doctrine
i. Lauro Lines s.r.l. v. Chasser
1. Facts: Cruise ship hijacked, passengers sue. Forum selection clause
says forum is Italy. Suit brought in U.S., and Dfs motion to dismiss for
lack of PJ. Court denies, and Df sought interlocutory appeal on this.
Appellate court said no jurisdiction b/c of §1291; Df has to wait until
end of trial. SC granted certiorari.
2. Court’s denying motion to dismiss based on forum-selection clause is
not an adjudication on the merits that ends litigation; instead it
ensures that it will continue.
3. An exception to §1291 is the collateral order doctrine. This is when
claims are too important to be denied review and too independent of

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the cause to require deferral of an appeal until whole case is
adjudicated. To fall within this exception and order must:
a. conclusively determine the disputed question;
b. resolve an important issue completely separate from the merits
of the action; &
c. be effectively unreviewable on appeal from a final judgment.
i. In this case, only consider the third condition. The claim
that it would only be sued in Italy is reviewable on appeal
from final judgment, so it doesn’t fall within this
requirement.
b. Interlocutory Appeals on Injunctions
i. §1292(a) - allows appeals from interlocutory orders of the district courts
"granting, continuing, modifying, refusing, or dissolving injunctions, or
refusing to dissolve or modify injunctions."
1. Does not apply to temporary restraining orders (b/c of short duration of
the TRO), though it does to a preliminary injunction
2. Supreme Court has held that denial of summary judgment in favor of
one seeking a permanent injunction does not give rise to the right to
immediate appeal under this section b/c the ruling is simply a step on
the way to trial rather than a rejection of the claim on the merits.
c. Certified Interlocutory Appeals
i. §1292(b) permits a district court to certify interlocutory appeals from nonfinal
judgments
1. Judge wishing to do so must certify that the order "involves a
controlling question of law as to which there is a substantial ground for
difference of opinion" and that "an immediate appeal from the order
may materially advance the ultimate termination of the litigation."
2. District court Judge has to certify, and appellate court has to agree.
3. Rarely used; Reasons why interlocutory appeals are not more
commonly used:
a. Trial courts may not want it b/c they don’t want appellate courts
interfering too much
b. Appellate courts reluctant to add more cases to their workload
c. Both trial and appellate courts have to agree.
d. Mandamus
i. Writ of mandamus is obtained in an original proceeding in the court that
issues the writ, and it orders a public official (may be a judge) to perform an
act required by law.
1. Ex: District court declines to try an antitrust case, appeals court issues
the writ for judge to try it.
2. If we have a legal issue of great importance, and there are strong
reasons to intervene now (that the assertive right will be destroyed,
like having to hand over privileged materials), you may have a case for
mandamus
ii.Since mandamus can be used to get around the final judgment rule,
mandamus must be limited. This measure, therefore should be invoked only
in exceptional circumstances.
1. Used by federal court to compel an inferior court to exercise the duty it
has.
2. Also often occurs when a judge has denied a jury trial.
3. Fed court may also do it to not allow a transfer, b/c if it were
transferred, the appellate court would no longer have jurisdiction.

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4. Such a strong statement of disrespect to judge to say he abused his
discretion
IV. Contempt - Doesn’t come up too frequently, but usually in 3rd party discovery
a. Hickman v. Taylor - He was held in contempt, that created a final order, that made
the discovery ruling appealable

SCOPE OF REVIEW
I. We want our appeals system to work in 2 ways which are opposite to each other
a. We want appellate court to find general rules of law in the court system and correct
errors made below
b. Efficiency - deferring to trial courts
i. No interlocutory appeals
ii.Doctrines trying to avoid paper shuffling (like harmless error)
iii.Practical factor - In federal system, # of appeals very small compared with
those reaching final judgment. # of reversals also very small compared with
# of appeals. So we want to defer to trial courts since it’s very unlikely that it
would be reversed in appeal anyway.
II. Appellate courts have devised 3 standards which might apply to your case, reflecting
these rules
a. One pure issues of law, the court of appeals will not give any additional weight to
trial court, and will reverse if they think it was wrong. Based purely on the merit.
Clear fixed rule that will apply every time.
b. If the ruling below is based on fact, reversal only if ruling is erroneous (Rule 52).
c. If the ruling is a matter of discretion, the court of appeals review standard is of use
of discretion. Unlikely to reverse - court will take it as an insult, lack of respect by
saying that court used its discretion wrongly.
d. You might argue that something was determined as issue of law, when it was an
issue of fact, or vice versa. This is a common appeal issue.
i. If you have a hostile judge to you, you want the issue defined as law, so you
can appeal it if judgment against you. If judge is favorable to you, you want
it to be an issue of fact, so it’s not appealable.
III. Even if decision is reviewable (by final judgment or otherwise), and even if lower court is
flawed, the appellate court may not always reverse.
a. Law and Fact - if it's an issue of law, appellate court may review, reverse etc. But if
it's a question of fact, we must defer to trial court's determination (unless there is
something wrong in the procedure).
i. Case: Anderson v. Bessemer City
1. Facts: Pl sued for sexual discrimination in hiring. Trial court found that
for her based on certain factual findings. The appellate court reversed,
saying the factual findings were erroneous.
2. Rule 52(a) says a factual finding is reversible only if it clearly
erroneous. It’s erroneous when it’s clear a mistake has been made
based on evidence that is very one-sided. However, when there are
two permissible views of the evidence, the factfinder’s choice for btwn
the two cannot be erroneous (in this case the finding could have been
either).
b. Harmless Error- (§ 2111) fed courts are forbidden to reverse for "errors or defects
that do not affect the substantial rights of the parties." Courts figure this out by
speculating on the likely outcome of the case in the absence of error.
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i. Practical problem with harmless error doctrine
1. Bad rule of law as precedent
2. Who's to say what errors are harmless? - Something illegal is left
unrighted
3. Party with burden of showing harmfulness is the appellant - Hard to
prove

PRIOR ADJUDICATION
I. Former (Prior) Adjudication - the effect of judgments on subsequent litigation
a. Claim Preclusion and Issue Preclusion - serve to bring lawsuits to an end
II. Competing Policies
a. Fairness/Justice - Right to be heard; Accuracy
b. Finality - We want finality in the decision, even if it may not be perfect; Efficiency
i. “Use it or lose it” conserves judicial resources by adjudicating whole dispute
at one time.
ii.“Use it or lose it” also conserves judicial resources by making sure the same
issue need only be decided once.
iii.Protecting reliance interest of outsiders.
iv.Consistency as a value independent of correctness.

CLAIM PRECLUSION

I. Claim Preclusion (Res Judicata) - Forbids a party from relitigating a claim that should
have been raised in former litigation. By preventing subsequent litigation on the same
claim, requires the parties to include related grievances in the same suit. Goals:
Efficiency, Finality, Avoidance of inconsistency
a. Frier v. City of Vandalia
i. Action #1: Pl’s cars towed, sues in state court for replevin. Court denied,
saying the city properly towed the cars.
ii.Action#2: Pl tries to sue in fed court on 14th amendment – right to due
process – that he didn’t have prompt hearing be4 they took the car.
Dismissed for failure to state a claim. Pl appealed.
iii.Fed court looks at state law to see if 2ndaction would have barred via claim
preclusion (full faith & credit). There is claim preclusion here b/c both arise
from same core of operative facts.
iv.Forcing Pl to combine all claims that arise from same T/O, doesn’t force court
to try it all together. Rule 42(b) gives court the right to sever parts of
complaint for trial.
v.For a claim to be precluded, it must be a claim available at time of 1st suit.
Doesn’t necessarily apply only to claim’s ripeness, but also tribunal’s
competency (court doesn’t have the power)
II. Overview of Requisites
a. Valid Judgment - Doesn’t lead to much litigation, b/c narrow reasons for judgment
invalid:
i. Violate due process - entered without jurisdiction, or if there had been a
default
ii.If judge was bribed (very unlikely)

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b. After a Final Judgment - Doctrine of claim preclusion requires a prior final judgment.
But, this language does not receive completely literal interpretation.
i. If appeal pending, still final, but court may want to wait until appeal is
decided
ii.Presumption that every judgment is final until reversed, so its final for res
judicata purposes
c. Judgment "On the Merits" - Not all final judgments receive preclusive effect, even
though they involve the same claim and the same parties.
i. Ex: Action dismissed based on jurisdiction - then you can refile in a second
court
ii.However, a judgment after a full trial is entitled to a preclusive effect
iii.So, between these 2 extremes, where does preclusive effect begin? Courts
say that preclusive effects ought to attach only to judgments "on the merits."
iv.Saylor v. Lindsley
1. Action #1: Hawkins brought suit on behalf of Corp. Complaint
dismissed with prejudice when Hawkins failed to post a bond.
2. Action #2: Saylor, a stockholder, brought action on same transactions
& same Dfs.
3. A dismissal on a ground that does not resolve the substantive merit of
the complaint not a bar b/c of res judicata.
a. Rule 41(b) involuntary dismissal operates as adjudication on the
merits (except for SMJ, PJ and venue issues). The policy behind
this rule is to protect Dfs from inconvenience of preparing a
defense. Dfs never claimed this inconvenience. Also, b/c bond
never filed, court in 1st action never reached the point where it
would dismiss based on lack of jurisdiction, which wouldn’t have
been on merits
d. Between the same parties or those in privity with them (their “privies”) - It is
possible for someone not formally named as a party to be so closely connected to
suit that it is appropriate to treat her as if she were named.
i. Searle Brothers v. Searle
1. Action #1: Df sued husband for divorce. Property owned by husband
½; other ½ owned by partnership (his sons). She got the whole
property.
2. Action #2: Bros sue mom for ½ of property b/c not owned by dad, but
by partnership.
3. No claim preclusion - Bros would only be bound by the 1st action if they
were in privity (not parties). Their interests were not represented at the
time. Separate ownership, dad acting as individual, and not as rep of
partnership. Bros couldn’t have intervened in divorce suit.
e. On the same cause of action
i. Martino v. McDonald’s
1. Action #1: McDonald’s sues for breach of K, parties settle, but Df lost
money b/c settlement was for Df to sell franchise back for far less than
actual value.
2. Action #2: Martino sues McDonald claiming K violated Sherman
antitrust. Damages were money lost from selling franchise back.
3. The antitrust violation would be a complete bar to McDonald’s action
on enforcing the K. If asserted, would have prevented 1stjudgment.
Claim preclusion here b/c once judgment had been entered on a claim,
all possible issues related to the claim are considered settled even if
issue not brought up before. Dfs relied on settlement.

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III. Subdivisions: Bar and Merger
a. Merger - a cause of action is merged into a prior judgment awarding damages on
that cause of action
IV. Consequence - If claim preclusion applies (meet the reqs), the party is precluded from
litigating again anything that was litigated or could have been litigated in the former
action.

ISSUE PRECLUSION
I. Issue Preclusion (Collateral Estoppel) - When an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the determination is essential
to the judgment, the determination is conclusive in a subsequent action between the
parties whether on the same or a different claim.
a. Prevents inconsistent findings when subsequent litigation is permitted.
II. Overview of Requisites
a. Same factual issue - The legal and factual proposition (like negligence, breach,
theft, etc.)
i. The party asserting that the other party is estopped, has the burden of
proving this. If can't show that issue is the same, then burden of proof not
met.
b. Same legal context - The procedural setting, including burdens of proof and access
to information. If procedural settings not the same, can’t apply issue preclusion (like
burden in civil vs. criminal cases).
c. Actually litigated and Determined – The facts or legal issues raised must have been
actually litigated and determined previously to use issue preclusion. If you don’t
know what has actually been litigated, you don’t know just exactly what has been
precluded.
i. It would be unfair to bind someone to a factual determination that was never
actually litigated. If dismissed for procedural reasons, then it was not
actually litigated.
ii.Policy reasons - We don’t want to set up the rule so that party in Action #1
has to bring up any and all issues possible, so that party in action #2 is not
estopped on basis that it was not brought up before.
iii.Illinois Central Gulf Railroad v. Parks
1. Action #1: Wife sues RR for personal injuries; husband sues for loss of
consortium. Wife recovers; husband loses.
2. Action #2: Husband sues for personal injuries.
3. No claim preclusion – diff cause of action
4. Issue preclusion – applies if causes of action are not the same, but
some issues were actually litigated and determined. RR tries to say
jury denied husband’s first claim b/c of his contributory negligence, so
that’s been litigated and determined. However, court here says you
can’t really know why jury decided the way it did, so issue never
litigated.
d. Essential to the judgment - The issue that was determined in the 1st action, and is
being precluded in the 2nd, had to have been "essential to the judgment" of the 1st
action. If not, it may not have been properly litigated in the 1st action
i. So that we know the issue was fairly adjudged, and sufficient time was spent
on the issue
ii.If not essential to judgment, will not estop action #2.
iii.The party asserting the estoppel has burden to show this.
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iv.The more judgments there are, the less likely it was fully considered the first
time, so less likely it will be barred by issue preclusion.
e. Overall fairness - Harder to establish issue preclusion rather than claim preclusion
b/c of notion of fairness. Whether it was foreseeable that this would turn out to be a
big problem in the future
f. Between Which Parties? (Mutuality of estoppel) - At common law, this identity of the
parties (that they be the same), was a requirement for both claim and issue
preclusion. Continues so, but lately many courts have abandoned this requirement
for issue preclusion.
i. The "Victim" of Preclusion - A party who never had an opportunity to litigate
an issue cannot be precluded from doing so. There may be an issue here,
however, because this reasoning creates an asymmetrical availability of
preclusion.
1. Ex: Wife sues RR for injuries and wins. If husband sues RR for injuries
from same event, RR as to the determinations of the 1st suit (for
negligence). However, if RR won wife's suit, husband in his
subsequent suit would not be precluded b/c he never had a chance to
litigate.
ii.The Precluder
1. Parklane Hosiery Co. v. Shore
a. Action #1: Govt sues Parklane that they issued a misleading
statement and govt wins.
b. Action #2: shareholders sued for damages based on the same
misleading statements.
c. Mutuality of estoppel basically said that only when both parties
would have been precluded, you could use issue preclusion. No
longer the case; don’t need to be same parties. There is issue
preclusion for Parklane to say not liable, b/c already decided
liable in 1st action. However, if found not liable in #1,
shareholders not precluded b/c they never had a chance to
litigate it.
iii.Replace mechanical rule with a more functional policy driven approach (in
the Rest.)
1. A party precluded from relitigating as issue with an opposing party is
also precluded from doing so with another person unless he lacked full
and fair opportunity to litigate the issue in the 1st action or other
circumstances justify affording him the opportunity to relitigate.
III. Preclusion against the federal government
a. No issue preclusion
i. It would be too burdensome on govt as well as court system to require US
govt to appeal every loss to avoid preclusory effect
ii.Ordinarily, if the district court decided something, that's binding in district
court it’s decided in, but not other districts. But if its given collateral estoppel
effect, than it would be binding on all courts, and every litigant would use
this. That one unappealed decision of the district court would bind Supreme
Court, it would become a super-precedent.

BOUNDARIES OF PRECLUSION
I. Boundaries of Claim Preclusion - Reasons for declining to apply claim preclusion:
a. Where the parties have expressly or implicitly agreed to allow claim splitting
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b. Where a court has in the first action reserved Pl's right to bring a second
c. Where jurisdictional limitations prevented Pl from seeking certain forms of relief now
sought.
d. Where the judgment is inconsistent with the law; or if Pl should have been permitted
to split the claim
e. Where there is a recurrent or continuing wrong - Pl can sue all at once, or from time
to time
f. If public policy favors the claim not to be precluded
II. Federated Department Stores v. Moitie
a. Action #1: Several Pls brought antitrust action against Federated; suits were
dismissed. Some of Pls appealed, but Moitie and Brown decided to file a new action.
b. Action #2: After Moitie filed 2nd, appeals overturned 1st action, and those Pls won the
appeal. Claim preclusion, but Moitie says should be an exception b/c wouldn’t be
fair not to recover when other Pls did; the law changed.
c. Held here that failure to appeal dismissal of fed claims precludes you from now
taking advantage of intervening change of law. It was dismissed then, you didn’t
appeal, so now you're precluded from final judgment in that case. Res judicata
exists to give absolute finality to a judgment - can't retry every case just b/c it’s
subsequently overturned. Pls made a deliberate decision not to appeal.
III. Boundaries of Issue Preclusion
a. Where the victim of preclusion could not, as a matter of law, have obtained
judgment in the initial action
b. Where the issue is one of law and (either)
i. Where the 2 actions involve claims that are substantially different -or-
ii.Where there are intervening changes in applicable legal context or otherwise
to avoid inequitable administration of laws
c. Where there are diffs in procedures followed by the 2 courts, or by factors relating
to allocation of jurisdiction
d. Where the burden of persuasion has significantly shifted
e. Where there would be an effect on public interest; or the 2nd claim was not
foreseeable in 1st action; or precluded party never had a adequate opportunity in
1st action

MISC FINALITY DOCTRINES


I. Precedent - Given two precedents both equally close on the facts to the present situation
what factors will cause this court to give one of them heavier weight than the other?
a. Hierarchy of authority within the same jurisdiction
b. Hierarchy of the courts (Supreme Court would be on top) – let’s say if neither case is
in the same jurisdiction. Supreme court would be more persuasive than a trial court
ruling
c. Time -more recent precedent usually more persuasive than older cases (b/c of
modern trend of the law).
i. Exception (rarer) – it’s been the rule for so long, that it should stay the
precedent
d. History and context of how the case has been perceived in law reviews, public, etc.
i. The intrinsic substantive merits of the case (the logic of it)
II. Law of the Case - says that parties get a single appellate shot at their legal contentions
and that, once they have achieved such an appellate ruling, it continues to govern in
subsequent trial and appellate proceedings. If loser doesn’t like the initial appellate ruling,
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his remedy lies in a petition for certiorari to the U.S. Supreme Court. He may no longer
argue the question in lower courts.
a. A trial judge normally defers to prior rulings in the same case on the trial level, and
rulings on a prior appeal on the same case (even if not binding, like if a preliminary
injunction), they would be inclined to defer. Court of appeals will be inclined to
defer, even if not technically binding,
b. As a matter of efficiency, we will tend to adhere to prior rulings in the same case -
that is law of the case (same case) as distinguished from precedent.
III. Judicial Estoppel - courts will invoke judicial estoppel when a party has taken a sworn
position in one proceeding, benefited, then seeks a differing position in a diff proceeding in
order to win that judgment.
a. In determining when judicial estoppel would be applied, 3 elements must always be
satisfied:
i. Party being estopped must assert a position inconsistent with that taken in
prior litigation, and that position must be one of fact rather than law.
ii.The prior inconsistent position must have been accepted by the court.
iii.Party being estopped must intentionally have misled the court to gain unfair
advantage.

REPOSE: COLLATERAL ATTACK AND REOPENED


JUDGMENTS
I. Full Faith and Credit as a Bar to Collateral Attack
a. § 1738 demands that federal courts give the same full faith and credit to state court
judgments as those states would give (full faith and credit to fed court judgments
has always been assumed).
b. Article IV of constitution places the same obligation to state courts to recognize
other state's judgments.
c. Gap occurs when there's a jurisdictional problem - should the judgment be void b/c
of lack of jurisdiction?
i. Durfee v. Duke
1. Facts: Dispute over land; don’t know if land is in Nebraska or Missouri,
and only state where land is can adjudicate. Nebraska court says land
is in Nebraska, so they have jurisdiction, and find for Pl. Df brought
claim to quiet title in Missouri. Missouri court says land is in Missouri,
but res judicata bars the claim – full faith & credit. Appellate court says
Nebraska doesn’t have jurisdiction b/c land in Missouri; so overruled.
2. Nebraska court had already determined land is in Nebraska, giving
them jurisdiction. Full faith & credit requires other states (Missouri) to
uphold that land is in Nebraska.
II. The Reopened Judgment as an Alternative to Collateral Attack
a. Claim and issue preclusion combine with requirements of full faith and credit to
force litigants and courts to honor judgments. However, they have the potential to
work injustice if they perpetuate something fraudulent (like concealment of
evidence) in the second case. To prevent, this legislatures have created an
opportunity (in limited circumstances) to reopen judgment.
b. Rule 60(b) – Motion to re-open.
i. Not practically available, but can be used in limited circumstances to avoid
injustice. Only use when all other measures are exhausted.

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ii.Courts are not happy after all this has been to, to listen to a motion to reopen
the verdict, but there can be under some circumstances
1. If it turns out judge who presided over trial, never were a judge, then
we would re-open
c. United States v. Beggerly
i. Facts: Quiet title on land; If land deeded to private individual before Louisiana
purchase, the Beggerly gets title. During discovery U.S. says can’t find any
proof in records that it was ever deeded to private person. Years later, found
that it had been. Beggerly invokes Rule 60(b) to re-open the case.
ii.Rule 60 (b) provides that the court can relieve a party of a final judgment for
certain reasons (fraud, misrepresentation, mistake, neglect, etc.), but there is
a time limit of one year after the judgment. In this case, the time limit had
expired to be able to use Rule 60(b).
iii.Rule (d) grants the court power to entertain an independent action to relieve
a party from a judgment, but this rule is reserved for cases with grave
injustice. Court decided that the facts here do not meet that standard.

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