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OVERVIEW OF PROCEDURE
a. b. c. d. e. f. g. h. i. j. k. l. m. SUBJECT MATTER JURISDICTION PERSONAL JURISDICTION VENUE SERVICE OF PROCESS COMPLAINT RESPONSE JOINDER DISCOVERY SUMMARY JUDGMENT TRIAL JUDGMENT AS A MATTER OF LAW FORMER ADJUDICATION APPEALS
INCENTIVES TO LITIGATE
a. LITIGATION IN THE US i. Current state of litigation (pgs 259-264) b. SUBSTITUTIONARY REMEDIES i. Compensatory Damages 1. Cash amounts intended to make the injured party whole 2. Economic damages = lost wages, medical bills, etc. 3. Other damages = pain & suffering, emotional distress, harm to reputation 4. Compensatory Damages often fall short of full compensation since, in most cases, litigant will have to pay lawyers fees ii. Liquidated Damages fixed amount, contractually agreed upon as a substitute for calculating damages; if too high, will be unenforceable as a penalty; parties may not agree to liquidated damages unless actual damages would be too difficult to calculate iii. Statutory Damages Sometimes statutes set minimum damages to be awarded, not specifically tied to the amount of loss suffered (ex. Copyright Act) iv. Punitive Damages exception to the general rule that damages serve only to compensate plaintiff; in some jurisdictions plaintiffs seeking punitive damages may introduce testimony as to the defendant s net worth c. SPECIFIC REMEDIES i. Courts may order parties to do things or to refrain from doing them ii. Injunctions / specific performance some common law, some equitable; in order to obtain equitable remedy, plaintiff must show that legal remedy is inadequate d. DECLARATORY RELIEF Rule 57 i. Under Declaratory Judgment Act, parties may seek declaration of their rights without any coercive relief such as damages or an injunction ii. Article III of Constitution limits the availability of declaratory judgments to actual cases or controversies no declaratory judgment on hypotheticals iii. Declaratory relief may be chosen by a party even though other avenues are open e. FINANCING LITIGATION i. American Rule parties pay their own attorneys fees (Rule 54) ii. Insurance & Contingent Fees 1. If defendant has liability insurance, the insurance company will provide the defense as part of the policy benefits 2. In contingency fee system, the lawyer typically agrees to provide legal representation, with the fee to be paid from the proceeds of any settlement or recovery 1
Public Subsidies & Professional Charity Fee Spreading to Fee Shifting (exceptions to American Rule) 1. Common Fund theory shares fees among similarly situated persons rather than shifting them to the opposing party in the lawsuit 2. Contract parties may contract ahead of time for fee shifting a. Asymmetrical (ex. tenant pays landlord s lawyer if evicted, but landlord doesn t have to pay tenant s lawyer if eviction effort fails) b. Symmetrical loser pays winner s lawyer 3. Common Law plaintiff may have to pay defendant s lawyers fees if brought suit that was groundless 4. Statute many federal and state statutes authorize fee shifting (ex. civil rights cases); court in its discretion may allow the prevailing party a reasonable attorney s fee as part of the costs a. Some courts have interpreted prevailing party as symmetrical fee shifting; others have interpreted it as prevailing plaintiffs (interpreting legislative intent as trying to make enforcement of civil rights easier, not harder) PROVISIONAL REMEDIES i. Preliminary Injunctions & Temporary Restraining Orders Rule 65 1. Preserves the status quo so that any final relief granted by the court can be effective 2. Dilemma in granting provisional remedies if court does not grant prompt relief, the plaintiff may suffer a loss of his lawful rights that no later remedy can restore, but if the court does grant, then the defendant may sustain precisely the same loss of his rights 3. To obtain preliminary injunction, party must prove: a. High risk of suffering irreparable harm b. They are likely to succeed later on in trial c. They would be harmed more by denial of the motion than granting it would harm the other party d. Granting the motion serves the public interest 4. Preliminary injunctions are appealable 28 USC 1292(a)(1) allows interlocutory appeals ii. Provisional Remedies & Due Process 14th Amendment
a. Two central functions of pleading: i. Enable the parties to reach converging estimates of a case s values (eliminates some legal theories, sharpens the basis for the dispute) ii. Define the ground to be covered in discovery b. COMPLAINT i. RULE 8(a) short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief the pleader seeks ii. Complaint must do two things: 1. Invoke, at least by reference, a body of substantive law 2. Sketch a factual scenario that, if shown to be true, falls within that body of law iii. A court will almost never dismiss a complaint without granting the plaintiff leave to amend c. RESPONDING TO COMPLAINT defendant does not appear in the suit until he files some paper or motion that evinces participation in the lawsuit i. RULE 12(a)(1)(A) & (B) while plaintiff s lawyer has a fair amount of time to investigate the facts and law surrounding the claim (unless statute of limitations is about to run), defendant s lawyer has 20 days to serve an answer (or 60 days if defendant waives service of process under RULE 4(d)) 1. OR, plaintiff could stipulate an extension, or court could order extension 2
General Denial denies each and every allegation of the complaint (in very few cases can defendant deny every allegation and not risk Rule 11 sanctions) c. Such motions are attractive to defendants because can result in quick and inexpensive dismissal of a case 2. Any required or permitted affidavits (sworn statements) d. and signed as per Rule 11) Pre-Answer Motion permits defendant to raise certain types of objections to the action at a very early stage of litigation RULE 12(b) 1.ii. then in the answer) a. RULE 8(d) if defendant fails to respond to an allegation in a complaint (other than amount of damages). RULE 12(g) & (h) rule 12(b)(2)-(5) defenses are waived if not motioned or pleaded in a response. court held that defendant should ve given a more specific response and this would ve alerted plaintiff that they were suing the wrong party. it is considered an admission b. Affirmative Defenses (confession & avoidance) 3 . the party can say so and this has the effect of a denial a. all other motions must be asserted at the time of the first motion (or if there is no motion made. unless during trial. a 12(b)(6) motion may be asserted at any time including trial. defendant has 10 days after notice of court s action to file pleading) RULE 7 (a) states the types of pleadings permitted. A motion can be one document or contain several documents: a. ielinski v. iii. Memorandum explaining the basis for the motion 3. Rule 12(d) any party can make 12(b) motion before trial. if court denies motion or postpones judgment on motion. iv. court ordered PPI to tell jury that they were the operators of the forklift (even though not true the alternative is that the plaintiff loses his cause of action b/c statute of limitations had already run for bringing suit against CCI) 2. If materials are attached to a 12(b)(6) motion ( matters outside the pleading ). then the motion is treated as one for summary judgment 4. punitive damages in a tort claim). Rule 12(e) motion for more definite statement motion must be made before responsive pleading (makes sense. how can you respond to a complaint and then motion that it s too vague) 5. defendant denied the allegation because they had sold operation of the business to CCI (but still maintained ownership of forklift). this acts as a kind of 12(b)(6) motion directed to a single allegation. Lack of subject matter jurisdiction can be brought up at any time and the court shall dismiss the action 12(h)(3) Answer responds to the allegations of the complaint and asserts any additional information or affirmative claims that defendant may have against plaintiff 1. (b) states that a motion is a request to the court for a court order (must be in writing. v. Philadelphia Piers plaintiff filed suit against PPI thinking they owned and operated the forklift that caused injury. Denials (traverse) RULE 8(b) requires defendant to deny only those allegations that he actually disputes. if party lacks knowledge to form a belief on the truth of an allegation. Motion itself a request for specific relief sought b. court will also grant the motion if the allegations in complaint are unnecessarily derogatory 6. but court may defer the determination for trial 7. Notice of the motion tells opposing party when the motion will be heard c. RULE 12(a)(4) alters time period for responsive pleading if defendant makes a pre-answer motion (ex. Rule 12(f) motion to strike defendant may move to strike part of claim that is not recoverable by law (ex.
Layman v. Tension between: 1. but party may reply to all new matters in an answer to avoid a possible inadvertent admission. Beeck v. but that they had a valid reason for doing so 3. but then discovered it wasn t their slide and motioned to amend pleading. otherwise. an amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to the defendant s attention by the original pleading. in opposing the amendment. Caron Foundation plaintiff was granted leave to amend. the original complaint had to do with defendant s failure to inform prior to the surgery. Prejudice at some point the other side has to make decisions about how to present its case. party may amend only by permission of the court or written consent of the other party. in addition. Rule 15(a) party may amend pleading once at any time before the other party responds. leave shall be freely given when justice so requires 1. any party can motion for judgment on the pleadings (if any materials outside the pleadings are attached and not excluded by the court. the original complaint advised defendant of the same transaction or occurrence giving rise to the different theories of negligence. Easy amendment allows the pleadings to reflect the parties changed view of the case as it develops 2. Baker plaintiff was not granted leave to amend her complaint to add a claim of iv. defendant had relied on the investigations of 3 insurance companies in making its first pleading. Aquaslide defendant originally admitted to being the manufacturer of the slide. REPLY a reply is required only if the answer contains a counterclaim that is labeled as a counterclaim (Rule 7a). RULE 8(c) affirmative defenses cannot be brought up at trial if omitted in the pleading. court held that amendment was appropriate because it would be prejudicial to the defendant to deny the amendment. decisions that become difficult if the story it has to meet continually shifts ii. then it s treated as a motion for summary judgment) d. in this case. leave to amend should be granted unless the moving party acted in bad faith or sought to unnecessarily delay the case. plaintiff would have to prove that it would be prejudicial Moore v. but proposed amended complaint refers to defendant s actions during and after the surgery. this is to prevent unfair surprise because affirmative defenses introduce new facts i. defendant was not denying that they entered the land. or if no response is required or permitted then within 20 days after pleading was served. Rule 12(c) after pleadings are done. whichever period is longer iii. AMENDMENTS RULE 15 i. Bonerb v. Richard J. negligence because it did not relate back to her original claim of violation of the informed consent law 1. A motion to amend can be made after discovery if an affirmative defense came out of discovery (depends if done in good faith) b. there was nothing in the original complaint that made reference to negligence. the court reasoned that 4 . so there was no evidence of bad faith. court may order a reply on its own motion or on the motion of a party e. A party shall respond to the amended pleading within the time remaining on the original pleading or within 10 days after service of the amended pleading.a. Court says that a defense is an affirmative defense if it rests upon a fact not included in the allegations made by plaintiff. so there s no way the defendant had adequate notice of the allegations (and so the plaintiff is trying to bring up totally new claims after the statute of limitations has run out) v. Southwestern Bell court held that easement agreement was an affirmative defense and should ve been raised in pleading.
they knew or should have known that but-for a mistake in originally identifying the party the action would ve been brought against them IV. transaction. address. Parties must disclose identity of any person who may be used at trial to present expert testimony 2. Opposing party has 14 days after such disclosure to file objections.vi.all required disclosures (above) must be in writing. they have received notice and will not be prejudiced in maintaining a defense on the merits (knew enough about the suit that they wouldn t be at a terrible disadvantage) d. the claim against them arose out of the same conduct/transaction/occurrence set forth in original complaint b. Computation of any damages claimed by disclosing party. signed and served v. both complaints stemmed from the same facts (negligent maintenance of the basketball court / negligent rehabilitation care) RULE 15(c) defines the line between permitted and unpermitted amendments in terms of the conduct. Copy of or description of all documents that disclosing party may use 3. and party must make available for inspection any supporting material not privileged or protected 4. Rule 26(b)(1) General Scope of Discovery broad scope 1. (E) states categories of suits that are exempt from initial disclosure ii. Parties may obtain discovery regarding any matter that is not privileged that is relevant to the claim or defense of any party 2. objections not filed are waived (unless excused by court for good cause) iv. Rejects the idea that amendments should turn on legal theories 2. unless solely for impeachment (showing that the witness is a liar) 2. or occurrence set forth or attempted to be set forth in the original pleading 1. FEDERAL RULES 26-37 i. For good cause. Designation of witnesses whose testimony will be presented by a deposition and a transcript of the pertinent parts of the depo 3. or if the testimony is to be used to rebut evidence by opposing side s expert. Name. Identification of each document or exhibit party expects to offer and those which the party may offer if necessary 4. Rule 26(a)(2) Disclosure of Expert Testimony 1. Rule 26(a)(3) Pretrial Disclosures parties must disclose within 30 days of trial: 1. Make available for inspection any insurance policies 5. DISCOVERY a. parties must provide (within 14 days after Rule 26(f) conference): 1. court may order discovery of any relevant matter 3. Relevant information need not be admissible at trial if the it is reasonably calculated to lead to discovery of admissible evidence 5 . they are served in compliance with Rule 4(m) c. Rule 26(a)(4) . Rule 26(a)(1) Initial Disclosures without being asked. Name of each witness they expect to present at trial and those they may call if the need arises 2. Written report prepared and signed by the expert witness (rule states what the report must include) 3. telephone # of each person likely to have discoverable information that disclosing party may use to support its case. Disclosure must be made at least 90 days before trial. Rule 15(c)(3) a new party can be named in an amended complaint if: a. then within 30 days after disclosure of that expert by the opposing party iii.
Discovery costs time and money. Discovery methods may be limited if: a. Rule 26(f) Conference requires parties to confer about the case and come up with a plan for discovery. Broad discovery rules permits lawyers to uncover enormous amounts of information iii. and requests for admissions 2. Rules sets out the types of order court may grant x. MODERN DISCOVERY i. oppression. Rule 26(c) Protective Orders 1. motion must include certification that party tried to work it out with the other party before seeking court action. RELEVANCE & PRIVILEGE 6 vi. Unreasonably cumulative. Parties are under a duty to supplement the required disclosures. Party seeking discovery must pay the expert a reasonable fee ix. Any person identified as expert witness who may be called upon at trial may be deposed 2. Court can alter # of depositions or interrogatories. Methods of discovery may be used in any sequence xi. Rule 26(g) Rule 11 equivalent for discovery xiv. Discovery ends lawsuits for 2 reasons: 1. and request for admission if they learn that the info is incorrect or incomplete in a material respect and if the additional info has not already been made known to the other party during the discovery process 2. Party may motion for protective order. Parties may not seek any discovery before the Rule 26(f) conference 2. The burden of proposed discovery outweighs its likely benefit vii. court may make any order which justice requires to protect a party or person from annoyance. An expert who will not be called to testify at trial may be deposed only as provided in Rule 35(b) or upon showing of exceptional circumstances 3. or undue burden or expense 2. RULE 29 allows parties to write their own discovery rules b. or can be obtained more easily from another source b. rule outlines the topics to be covered in this initial conference (does not necessarily have to happen in person) xiii. Rule 26(d) Timing and Sequence of Discovery 1. Party seeking discovery has already had opportunity to obtain the info c. Rule 26(b)(3) Trial preparation materials party may obtain documents prepared in anticipation of litigation (excluding work-product) only upon showing: 1. Unable to obtain the substantial equivalent of the materials by other means without undue hardship viii. embarrassment.Rule 26(b)(2) Limitations 1. Discovery produces information about the merits of the lawsuit and permits parties to make informed judgments about the strength of each position 2. Rule 26(e) Supplementation of Disclosures and Responses 1. . Party doesn t have to provide electronically stored info if it can prove that it s not reasonably accessible without undue burden or cost 3. request for production. so it enables parties to wear each other down without regard to the merits of the case ii. responses to interrogatories. Substantial need of the materials 2. Expert testimony both the written report and any info given in depositions must be supplemented xii. Most judgments on discovery motions are interlocutory (do not end the case) and are therefore not appealable until after the case is final c. Rule 26(b)(4) Trial preparation experts 1.
or an explanation of why not 2. not a trial standard 3. either explicitly by the party entitled to use it or implicitly by an action inconsistent with the privilege a. attorney-client. judge holds scheduling conference Rule 16(b) e. PROCEDURES & METHODS i. as well as calculations of damages and copies of insurance agreements. unless waived. court granted the motion because the request did not step beyond the scope of their allegations a. but does not offer party the chance to follow up evasive answers to questions (may yield little valuable information) a. Steffan v. Can be served on any party (non-party witness is not required to respond to interrogatory) b. they filed motion to compel discovery to obtain complaints filed by other employees against defendant. cannot be pierced by a showing of need. Defendant is served or waives service according to Rule 4 b. mental condition). parties must exchange this info without its having been requested 1. information must be relevant either to a claim or defense of the parties. Required Disclosures Rule 26(a)(1) within 14 days of initial conference. psychotherapist-patient 3. privileges typically block information from a particular source (they re not meant to block the underlying facts) 1. doctor-patient. you must serve opposing counsel with discovery demand first. Parties must exchange required disclosure lists either at the Rule 26(f) meeting or within 14 days after it (purpose is to require parties to exchange disclosures at least 7 days before scheduling conference) ii. claiming hostile work environment. plaintiff must have made a discovery request of the other side and defendant refused. Cheney court held that plaintiff was not required to answer deposition question about whether he had engaged in homosexual acts because it was irrelevant to the defendant s stated reason for discharging him (that he stated he was a homosexual) ii.typically cheaper for the party seeking discovery. Interrogatories & Depositions 1. Common privileges self-incrimination. Within 90 days after defendant s appearance or 120 days after service. All privileges can be waived. privilege. If party puts something at issue (ex. Getting from Service to Disclosure a. Parties must meet as soon as possible or at least 21 days before scheduling conference Rule 26(f) d. each party must offer the other side the names of witnesses and descriptions of documents that the disclosing party may use to support its claims or defenses. Interrogatories Rule 33 . Before motion to compel discovery was filed. Should not exceed 25 questions (must request leave of court to ask more) i. 7 .has nothing to do with relevance of the information. Privilege Rule 26(b)(5) . Precoat Metals plaintiffs filed discrimination suit against employer. opposing counsel must then serve you with an answer either providing the info you want. relevance is a legal standard. Privilege. Davis v. Relevant does not necessarily mean admissible at trial.Relevance to be discoverable. is absolute 2. relevance links discovery to pleadings 1. Defendant appears in the suit by filing pre-answer motion or answer Rule 12 c. the party cannot then block discovery by claiming privilege d. unlike trial preparation protection.
signature certified that in the knowledge of signer. Requests for documents cannot be made before disclosures in Rule 26(a) c.requires special application to the court when you want the other side physically or mentally examined. requires showing of good cause and that the condition be in controversy Requests for Admission 1. Rule 30 rules for depositions taken upon oral examination i. v. For requests. No person can be deposed a second time without permission of court or the other side d. The total # of depositions taken by one side may not exceed 10 ii. because of system of notice pleading a lot information doesn t appear in the pleadings. Rule 36 more like a pleading device than one for discovery. the information is complete and accurate as of the time it s disclosed b. Deposing party must arrange for some form of recording or transcription c. A matter is admitted unless answered or objected to (an answer can be a denial or a detailed reason why the party cannot truthfully admit or deny the matter) i. Rule 32 use of depositions in court proceedings Production & Inspection of Documents/Things Physical & Mental Exams 1. Business may offer party opportunity to examine business records to derive answers to interrogatory 2. but then witness continues answering the question ii. For disclosures. The request for inspection differs between parties and non-parties (requires subpoena for non-parties Rule 45) b. signature certifies that to the best of signer s knowledge. Rule 28 defines officer whom depositions must be taken in front of e. etc. discovery requests. Rule 31 rules for depositions taken upon written questions (rarely used procedure) g. Limits i. there are expenses to all concerned a. or if the information being asked is privileged f. Rule 34 permits inspection of land. formed after reasonable inquiry. Lawyer asks questions and witness must answer under oath b. formed after reasonable inquiry. Party can t claim lack of knowledge unless they ve made a reasonable inquiry Ensuring Compliance 1. Number of document requests is not limited by the rules 2.iii. objects and documents (documents includes any medium for recording information) a. so Rule 36 provides a device for you to request to admit what s not an issue. iv. Depositions like questioning a witness at trial without the judge. rule is designed to limit the number of issues that are contested a. embarrass. Rule 26(g) punishes the parties for unjustified requests and refusals even when the parties behavior does not violate a court order (Rule 37 sanctions are for violation of court orders) like Rule 11 all disclosures. the request is: 8 . Rule 35 . Lawyer can object. responses and objected. c. Deposition can only be stopped if opposing counsel is asking questions to harass. No deposition may exceed a day of 7 hours iii. and objections must be signed by attorney (or unrepresented party) a. responses.
and Rule 34 requests c. court is attempting to balance privacy and discovery a. The party seeking order has burden to show good cause 2. Not unreasonable or unduly burdensome considering the specific nature of the case 2. If motion is granted or opposing party disclosed requested information after motion was filed. plaintiff brought such information within the scope of the case. plaintiff filed sexual harassment claim against defendant and gave notice to depose 4 non-party witnesses. Rule 5(d) forbids filling discovery materials with the court unless used in a motion or at trial 9 . defendant motioned for protective order to protect non-parties from discovery regarding voluntary romantic or sexual conduct. Rule 37 Failure to Make Disclosures or Cooperate in Discovery a. Rule 26(c) permits a party to seek a protective order and gives the judge broad power to prevent abusive discovery 1. A party is entitled to seek a protective order to preclude any inquiry into areas that are clearly outside the scope of appropriate discovery b. Consistent with rules or poses good faith argument for modification of existing law ii. If motion is denied. court may apportion the reasonable expenses g. Rule 37(d) sets forth sanctions for failure to appear for deposition. disobedient party may lose claim or defense. Failure to participate in development and submission of proposed discovery plan (in Rule 26(f) conference) may be sanctioned e. defendant argued that witnesses depositions are irrelevant. contempt of court) h. but by claiming hostile work environment. other party may motion to compel disclosure and appropriate sanctions (party must have tried to work it out with other party first before seeking court order) b. Good faith loss of electronically stored info is not sanctionable j. court may enter protective order and will require moving party to pay opposing party s incurred expenses (unless ) f. If motion is partially granted/denied. If a party fails to make required disclosure. Stalnaker v. names of patients who had undergone abortions who later filed claims for emotional distress) 3. default judgment. DISCOVERY & PRIVACY i. court held that witnesses could be deposed but questions may be asked to the extent that they showed conduct relevant to a hostile work environment.i. respond to interrogatories. Kmart Corp. Rule 37(b) sets forth possible sanctions for failing to comply with court order (issue may be established in favor of party obtaining the order. Same as above for depositions. or respond to request for inspection such failures may not be excused on claim that discover is objectionable unless the party had a pending motion for protective order (Rule 26(c)) i. court will require opposing party to pay moving party s reasonable expenses incurred (court must give party chance to be heard) unless the motion was made without first making good faith effort w/out court action or the party s nondisclosure was substantially justified e. interrogatories. Not being presented for improper purpose iii. designations by corporations. Confidential information is not necessarily privileged (ex. Evasive or incomplete disclosure is treated as a failure to disclose d.
Rule 26(b)(4) . 10 . Writ of Mandamus . Writ can t be used as a substitute for appeal. Rule 35 places special limits on the use of discovery to compel physical or mental examinations. and it was used here to order someone to do something. but attorney did not have to hand over the documents because plaintiff had not proven necessity or undue hardship 2. if judge does something outrageously. Questions to ask during discovery: 1. Court held that materials were not privileged. attorney privately interviewed the surviving crew members and other persons he thought would have relevant information. Party seeking the info has the burden of showing the court that production of relevant/non-privileged info is essential to his/her case and that in the balance of equities it would be unfair to not grant discovery ii. So. they re not reversing anything they have to order an original judgment DISCOVERY IN AN ADVERSARY SYSTEM i. expert physician). Is it relevant? b. two requirements: (1) the mental or physical condition be in controversy and (2) the party seeking such discovery show good cause 1. admitted seeing red lights for 10-15 seconds before the accident.differentiates between expert who may testify at trial and expert who is merely consulted 2. other defendants filed for writ of mandamus to have bus drive submit to mental and physical examinations. The appeals court in this case becomes an original court. disgustingly bad you go to appellate court with writ of mandamus requesting appellate court direct the trial court to stop doing whatever. tugboat owner retained attorney in anticipation of lawsuits. what matters is how you re using the witness. Wants court to redirect order of judge. plaintiff s attorney requested all materials but defendant s attorney refused. Work Product Doctrine what lawyer thinks. what they said. Is it lawyering? (is it something a lawyer should do?) iii. Hickman v. but bus driver did not have to submit to the examinations because moving parties had failed to make affirmative showing that defendant s mental or physical condition was in controversy. instead it s an original action in the appellate court. bus driver argued that Rule 35 can t be applied to defendants a.f. but only when other side shows substantial need and undue burden Rule 26(b)(3) 3. In controversy and good cause must be shown by movant that each condition individually is really in controversy and that good cause exists for each particular order b. who she interviews. This is very rare. Taylor tugboat sank and 5 of 9 crewmembers drowned. Schlagenhauf v.allows a party to jump the tracks of the procedural system. Expert Information 1. one is fact witness and the other expert witness. ordering someone not to do something. claiming attorney-client privilege 1. Court held that the rule 35 applies to all parties. is discoverable sometimes. Discovery rules focus on experts who have prepared their information in preparation for litigation (difference between your usual treating physician vs. Is it privileged? 2. just because someone has a medical degree does not automatically make them an expert witness ii. Writ of Prohibition is the flipside. Holder defendant (bus driver) crashed bus into back of tractor trailer. but they re both writs of mandamus. Does it qualify for discovery? a.
and since there were no other like examinations in the same relevant time period. ENSURING COMPLIANCE AND CONTROLLING ABUSE i. or motion for sanctions) ii. plaintiff filed motion for protective order to shield psychological records. Thompson v. The Haskell Co. Three basic patterns of discovery abuses: 1. Discovery is a process intended to be largely run by the lawyers/parties. defendant could not have hired their own expert to examine the plaintiff b/c results 10 days after her termination would ve been potentially different than results a year later b.Class action suit alleging the establishment and perpetuation of racial segregation in Baltimore s public housing. the reports are the only way for defendant to obtain the information a. Too little discovery stonewalling 3. Rule 16 discovery conference vi. M/V Bolero defendant was supposed to transport certain amount of bananas for plaintiff. and the requirement of discovery rules for the parties to cooperate with adversaries iii. in the event of motion for protective order.allows lawyer to appeal to court to come up with a manageable discovery scheme says that parties could fairly carry out the case with less discovery and that additional discovery would just be unnecessarily added on by party with greater means could be very relevant in cases involving parties of unequal means) iv. plaintiff had someone survey the ship once it arrived. plaintiffs sought to discover information stretching back to 1933. trial judge orders parties to go back and try to sort out a compromise 1. Rule 26(b)(4)(B) limits discovery of experts that are used in a consultative manner (there is an important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients positions without fear that every consultation with an expert may yield grist for the adversary s mill) g. administrative filing does not trigger anything with the defendant (the only time defendant has an opportunity for discovery is once the lawsuit is filed) 5. motion to compel discovery. a psychological examination 10 days after plaintiff s termination would hold a lot of evidence relevant to the case. Before a court will let an expert testify. this court deliberately chose not to provide a quick answer. but there s obviously a tension between lawyers role to advocate for their clients. Dept of HUD . Thompson v. defendant applied to compel discovery of plaintiff s witness (sought deposition and production of his file on his inspection of the ship and gear) a. plaintiff can t argue that defendant waited too long b/c plaintiff had to first file w/EEOC.3. but 11 . judges become involved only when the system breaks down (ex. Rule 26 assumes lawyers can handle it on their own. Chiquita v. Rule 26(c) permits any party to seek a protective order v. Court held that witness could not be deposed because he was an expert witness under 26(b)(4)(B) and because defendant had not proven exceptional circumstances (defendant didn t conduct discovery when they could have) b. Mismatched discovery when two parties have significantly unequal wealth (Rule 26(b)(2)(C)(iii) . court held that records were discoverable. Too much discovery when one party seeks more discovery than the case justifies so as to discourage or hamper the opponent 2. underlying message of the court: this is an important case and so sorting through discovery is worth it. the party presenting such testimony must establish that he or she is an expert and that the expertise is relevant to the contested issues Rule 26(a)(2) 4.
which is denied. DEFAULT JUDGMENT RULE 55 . Judge: you have to prove to the judge the amount you re entitled to. court says this is too important for the court to take a stab in the dark and make a decision. judge is not in possession of the facts to make a fair decision vii. at that point P can move for default judgment b/c D is not otherwise defending) a. however. Rule 55(c) escape clause. Heights Medical Center hospital sued Peralta for unpaid debt incurred by one of Peralta s employees. Rule 55(d) Rule 55 applies in the same way for a plaintiff who ignores a defendant s counter-claim 5. and then D does nothing after that.file an affidavit of service and that no responsive pleading has been received. have clerk enter default. Rule 55(e) no default judgment against the US 6. PRESSURE TO CHOOSE ADJUDICATION OR ALTERNATIVE procedural devices that force the parties to engage and respond to each other i. Peralta s property was sold (for much less than it was worth and without his knowledge) to satisfy the debt a. Supreme Court reversed because this violated Due Process. Textron. Entry of default decides liability the amount of damages is what is argued at the hearing (or whatever process judge chooses to conduct). has full discretion to use jury] 8. court granted plaintiff s motion for sanctions since the information plaintiff was seeking was easily determinable by defendant and instead defendant chose not to cooperate (stonewalling). at the end judge enters default judgment on the whole case 3. then request that judgment be entered on the default.V. case of plaintiff injured by defendant s golf cart. Rule 55(b) Judgment can be done by either clerk or judge a. the fact that Peralta might ve lost at trial b/c he had no defense did not matter. you DON T file for default on the 21st day judges don t like that 7. if parties settle. but judges in general don t like granting default judgment 1. Rule 55(a) Entry something a clerk can do upon showing that D has failed to plead or defend the case (ex. pleading motions. but they can t argue that the default judgment cannot be entered i. there is no appeals process (you can t appeal what you ve just agreed to).Rule 12(a) states rules for when defendant must respond after being served with a summons. had he 12 . but hospital was granted default judgment anyway (b/c of clerk s error). and any previous decisions don t matter (discovery motions.we have this rule b/c at some point it becomes abusive for a D to hold P s case hostage. hospital failed to properly serve Peralta. when both sides have the same information it increases the likelihood of settlement. Poole v. Entry of default is just the clerk s notation (not the same as judgment) 2. sometimes info obtained in discovery puts party in a good position to settle. different result than in Thompson because here there is nothing for parties to negotiate one party is complying with discovery rules and the other isn t RESOLUTION WITHOUT TRIAL technically. Inc. point of pleading and discovery is to get to trial but they also get you to a point for settlement. etc) a. Clerk: can enter judgment when the sum is certain (rare) b. court can set aside default entry and judgment for showing of good cause (courts are usually uncomfortable granting judgments ex parte when only one side is present) Rule 60(b) permits the reopening of a case even after judgment is entered on a default 4. Timing of Filing for Default . defense counsel may (probably will) be there to keep the recovery amount low (b/c they ve been notified as required by the rule). Peralta v. but if the rule says 20 days. probably going to have some kind of hearing [D can participate in this portion][both parties do not have rights to jury trial. and unless sum certain for damages. Process for seeking default judgment . if D motions for 12(b)(6). judge.
and therefore a final ruling 4. If defendant has answered. Plaintiff can then refile the same cause of action once and only once. permits might to triumph over right c. Negotiation & Settlement 1. the first voluntary dismissal is without prejudice. not the judge (when you settle. Time for filing for default is a bright-line test b. all parties must agree to the dismissal 3. because cts will enforce contracts not to litigate or to litigate using special procedures. you re creating a contract) 5. not the court d. deprives the public of definitive adjudication of issues that may reach beyond the particular case 3. VOLUNTARY DISMISSAL Rule 41(a) 1. can negotiate inclusion of lawyers fees (which are usually not shifted in litigation) 2. When settlement agreement is reached. Allows plaintiff to dismiss at any time before the defendant answers 2. parties can choose the mechanism to resolve their disputes. leaves parties less satisfied than if trier heard their story b. can avoid bad publicity e. Party may run out of funds to pursue the litigation b. The default judgment didn t stand because it was inappropriately given. element of consent basic principle of justice d. parties have enormous freedom to write their own procedural rules i. Only a party can move for default judgment. Both the judge and adversary can raise the issue of involuntary judgment 2. this is less likely in mediation) 4. the parties sign. not the lawyers. Many courts routinely require plaintiffs seeking voluntary dismissal to pay the defendant s attorneys fees as a condition of granting motion b. the case will not be dismissed if defendant objects unless the counterclaim can stand on its own 5. cheaper & faster than trials b. AVOIDING ADJUDICATION works by contract. Standard for involuntary dismissal is less clear c. Reasons to settle: a.been given the opportunity the course of events could ve been different (he could ve paid the $. this type of dismissal operates as an adjudication on the merits case cannot be refiled iii. there s a reason for process there s a rational way to handle things (this case wasn t it) b. and usually all-or-nothing conclusion (risk that somebody will win everything and the other party gets nothing. action cannot be dismissed at plaintiff s insistence without court order if defendant filed counterclaim before being served with plaintiff s motion to dismiss. Settlement controls risk trials are unpredictable (especially involving jury). Cons of settlement: a. can take into account subtleties of the situation that might be lost at trial c. after that it s an adjudication on the merits. the default judgment should ve been set aside as permitted by Rule 60(b) ii. Rule 41(a)(2) gives the judge broad discretion in deciding when to grant a voluntary dismissal after the defendant has answered except for situations stated in 41(a)(1). Pros of settlement: a. INVOLUNTARY DISMISSAL Rule 41(b) does to the plaintiff what default judgment does to the defendant 1. Unless specified by the court. If client wants to settle but counsel thinks it s a terrible offer: 13 . Differences between involuntary dismissal and default judgment: a. etc).
scheduling conferences b. Suit can be brought as a breach of contract cause of action. duress. or did client not share all the info with counsel?) b. etc. Nonbinding arbitration arbitrator renders decision but parties are not bound by it. can t talk to media reason being so that you ll talk 6. then the breach claim can immediately go back to the same court because it would be a violation of court order 9. not the lawyers 4. Probably means there was a breakdown of communication at some point (did counsel not adequately advise client of the impact of the agmnt. a. Mediator does not rule on the rights and wrongs of the dispute. Early neutral evaluation provides parties a reality check . etc. One of the main functions of mediation is to improve information flow across the table (non-mediated negotiations usually fail b/c divergent estimates of outcome and bad communication) 2. Successful mediation results in an enforceable contract 8. injunctive relief. whatever is said to client on an important matter Third-Party Participation MEDIATION ( assisted negotiation ) 1. unconscionability. Rule 16 pretrial conferences. Simplest form of settlement release P agrees not to bring a lawsuit or to drop one already filed a. If facts later come to light that settlement was made on fraudulent terms. mistake. but would just have to grant P s motion to dismiss the case (if that s part of the deal) b. Mediation process is confidential you cannot repeat what you learn in mediation session. they may be responsible for other side s costs 14 . the settlement is invalidated (normal contract law applies fraud. freedom to settle not up to the judge to decide if everyone got a fair deal (P w/meritorious claim may want to settle to get $ faster. Ultimately.ii.) 7. Two ways for judges to actively manage litigation: a. If party breaches settlement agreement: a. Rules regarding discovery 3.) via contract if the parties agree 5. incapacity. Judge does not need to review or approve the settlement. D would want dismissal to be involuntary so that case is dismissed with prejudice and then P is barred from refilling [claim preclusion] c. D may settle on a frivolous claim if eager to move on) 8. cannot tell parties what to do. Alternative Dispute Resolution Act of 1998 requires federal judicial districts to offer parties (even after filing suit) alternatives to litigation i. can t use it in court. client s decision 6. Focus is on the parties they do the talking. some states require that if a party insists on trial and then does no better at trial. neutral party assesses strengths and weaknesses of both sides to lead to a more realistic negotiating position ii. If the parties had made the settlement agreement part of the court s dismissal decree. is only there to help parties communicate their goals and suggest ways of accommodating them 7. Mediators do not use Fed. but then it will be placed at the end of the line of pending litigation b. All forms of relief are available via mediation (damages. Get everything in writing the settlement agreement.
D filed for a protective order Rule 26(c) to stop P from deposing Thomas a. proof arbitrator was corrupt] 15 . Attorneys do the talking in arbitration 6. so if the decision deals with what would in the ct sys be classified as injunctive relief. saying that the ct should not consider the litigation b/c the parties have agreed on arbitration (if D simply ignored the complaint.iii. iv. this might discourage similar settlements. P would get a default judgment and then D would have to apply to overturn the judgment) e. jury renders verdict. iii. Common stipulation of settlement: must remain confidential (extent can range from not speaking about any part of the dispute to not disclosing terms of the settlement) 2. and a party bound by the agmnt may be enjoined from litigating (Federal Arbitration Act forces parties to honor their agmnt to arbitrate Supreme Ct has suggested that state cts are also bound to enforce this national policy) a. judge can order judgment on the complaint that P cannot challenge [very limited exceptions. which settled via confidential settlement agreement). in binding arbitration. they should be able to obtain information relevant to their case c. files suit in ct. Arbitrators have whatever power the parties give them. i.P filed sexual discrimination suit against D & sought to depose Thomas (former employee who also filed a sexual harassment suit. Ct held that P could depose Thomas (b/c hostile work environment claim made other employees claims relevant). The benefit of D filing motion to stay (as opposed to motion to dismiss the case) is that once the claim goes through binding arbitration. Generally faster & cheaper. does NOT create federal ct C/A. more private 5. If cts can overrule confidentiality agreements. Wong . verdict serves as a basis for further negotiation Contracting for Confidentiality 1. so long as that was within the arbitration contract 2. d. Section 3 Tells federal cts what to do if party files lawsuit in spite of arbitration agmnt (stay trial until arbitration occurs) c. but could not ask about specifics of her settlement agmnt b. Parties who have entered a pre-dispute arbitration agmnt may be required to use arbitration as their exclusive forum. Need for Discovery (both in the Fed Rules) i.e. But when a P files an action. Confidentiality agreements are not absolute sealed docs are not necessarily sealed forever. including injunctions or damages. Kalinauskas v. Default procedural rules for arbitration are the Federal Rules (but the parties are free to agree to different rules) 3. If P. they re subject to reevaluation later on Arbitration 1. Section 4 Jurisdiction (only when federal ct would have jurisdiction on underlying dispute). Section 2 agmnts to arbitrate valid as matter of federal law b. Summary jury trial parties present their cases to jury in an abbreviated form. the parties have signed a contract to be bound by the decision. it's effective. Conflict Confidentiality vs. who was a party to an arbitration agmnt. Parties may also dictate applicable substantive law 4. D can file motion to stay the trial. privacy of settlement agmnt & contractual rights of parties deserve ct protection ii.
thus. Inc. needs 2 factors. state ct finds no reason to interfere Baseball Arbitration when liability is not contested. Substantive unconscionability focuses on terms of agmnt & whether those terms are so one-sided as to shock the conscience. 11. P not required to arbitrate claims for sexual harassment. Writers Guild dispute over screen credits. each side submits a figure and arbitrator must choose one or the other (nothing in between) a. This forces parties to submit numbers that are reasonable (b/c arbitrator can t split the difference if you submit an unreasonable amnt. or argue that the award was outside the scope of the contract c. Procedural unconscionability concerns manner in which contract was negotiated & circumstances of parties at that time. 9. 10. retaliation. that would render arbitration irrelevant i. 8. when trial ct makes factual determination or exercises discretion allowed by statute. Ferguson v. Did parties intend to arbitrate? (ct looks at the contractual agreement) ii. Compared with appeals of ordinary judgments: 1.7. Two Kinds of Limitations on Arbitration a. . Ct can t go back and determine what it thinks is a fair award. and hostile work environment against employer b/c arbitration agmnt found to be procedurally and substantively unconscionable. this sort of arbitration process makes no sense at all except for the people in it b/c they all follow it. they would hand down anonymous decision w/o any explanation a. you re only hurting yourself) Appealing Arbitration Decision (Scope of judicial review) a. Countrywide Credit Industries. or was blind. nor would their enforcement clash w/ any substantive provisions of the FLSA. Countrywide Credit Industries. appellate ct has limited scope of review (can ask only if trial ct abused its discretion) appellate ct would have to find that trial ct expressed prejudice. the people who vote for their own guild rules vote to maintain this sys. a. D can also compel P to arbitrate. Nature of the arbitration process Ferguson v. if P continues to breach. odd arbitration process parties didn t know who arbitrators were. but not generally useful because the ct will narrowly restrict the scope of its review: i. ct simply severed this provision and ordered D to pay all arbitration costs. So party can either challenge the contract. but parties cannot settle on damages. contract of adhesion (take it or leave it) Carter v. Ct did hold that agmnt s fee-splitting provision imposed prohibitive costs on P. ct held that D could pursue order to compel arbitration because arbitration agrmnts were not unconscionable. Is the arbitration award within the scope of the contract? b. otherwise breach of contract. and arbitrators didn t know who other arbitrators were. D can seek injunctive relief. 12. Inc. Ct denies P s request for new arbitration proceeding b/c the case was decided according to the rules and procedures set up by the industry. oppression (inequality of bargaining power) & surprise (extent to which supposedly agreed upon terms of bargain are hidden) b. Nature of the claim b. Appeal to a ct is possible. or misunderstood the witnesses (but if there s anything in the evidence that 16 f.
Supreme Ct held D should not prevail at summary judgment if it was possible for P to prevail at trial (very lenient standard) 2. 5. Ct of Appeals reversed based on Adickes test 3. opposing party cannot rest on its pleading. not by how it may appear in the future (P can no longer give ct IOUs) P must point to evidence in record that indicates that P could win. EFFECT of this case: a. Trend is that cts are more quick to grant summary judgment because they re getting rid of cases that don t belong in trial 17 . appellate ct has unlimited scope to take a second look (b/c trial ct has no special expertise that the appellate ct lacks). District ct granted D s motion for summary judgment holding that P had failed to prove proximate cause. it gets evaluated at that point. District cts are now empowered to limit the time for discovery if attys need more time for discovery. Cts decide summary judgment motions based on various docs (affidavits. v. CELOTEX RULE: if you file a motion. they should request an extension prior to a motion for summary judgment c. deposition transcripts. the trial ct judgment will stand 2.supports the trial ct s resolution. they must set forth specific facts showing there is a genuine issue for trial 4. (d) how the case will be handled at trial if partial summary judgment is granted 3. ct may deny judgment to allow time for more discovery 5. No burden shift just b/c D filed motion doesn t shift burden of proof. Supreme Ct held that whether P will be able to put together a good case at trial doesn t matter. (g) if any affidavits are presented in bad faith or to cause delay. RULE 56 1. what matters is the state of the evidence at the point summary judgment motion is filed 4. Prior to this case. Affidavit sworn statement must state personal knowledge (cannot contain hearsay. (f) if party opposing the motion can present reasons for why they cannot present facts at that time. Catrett wife sued for death of her husband allegedly caused by exposure to asbestos 1. and ct may allow them to be supplemented. Celotex Corp. SH Kress . etc) ct is not permitted to make assessments of credibility. the information must be such facts as would be admissible in evidence) iv. Attys need to be much more thorough in discovery because summary judgment can t be defeated by arguing that you will have enough evidence by trial. the burden of proof in summary judgment remains on whoever has the burden in the underlying case 6. but where trial ct made a legal finding. there has to be enough evidence of material issue today b. (e) affidavits must be fact-based. rule for summary judgment was from Adickes v. (c) motion will be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. not opinion-based. partial summary judgment may be granted (not appealable until the final judgment is entered) 2. so summary judgment is granted only where no such assessment is needed iii. no deference to the trial ct (de novo review) c. ct will order the party that presented them to pay the other party s reasonable expenses ii. SUMMARY JUDGMENT aims at avoiding an unnecessary trial (when evident there is only one winner) i.
The estate presented general evidence (affidavits from parents & coach. To rebut. The original ruling hurt P when they had done nothing wrong (sanctions other than dismissal could ve been imposed.P sued his employer following a work-related injury. discouraging wasteful activities. Management 1. D filed for summary judgment 1. they spend only small proportion of time presiding over trials ii. Fails to obey scheduling or pretrial order b. Advantage International . etc) v. Objectives of pre-trial conferences: speeding along the case. en banc hearing overturned the decision because judge let his clerk conduct the pre-trial conference (judge can t delegate that responsibility to a clerk). P could ve filed for summary judgment and probably prevailed 3. agent claimed that even if he pursued the policy it would ve been denied b/c jumbo policy application inquires into prior drug use. facilitating settlement 2. No appearance is made on behalf of party at conference c. Rule 16 Pretrial Conferences. district ct issued a pre-trial order setting forth a schedule for filing of various docs. ct held there is no genuine issue of material fact that decedent was cocaine user. Sanders v. ex. Summary judgment is appropriate where a party fails to make a showing sufficient to establish the existence of an element essential to that party s case. Fees. Thus.estate filed suit against agency for failure to take out jumbo life insurance policy on the decedent (basketball player). then case would ve survived summary motion b/c the drug use would ve been immaterial and D s error would ve mattered. 18 . P then requested a rehearing en banc (full circuit court panel). Scheduling. district ct dismissed the case with prejudice to the P as sanction for failure to comply 1. they also didn t like the sanction because judge had acted sua sponte (D s counsel had not requested the dismissal). If P produced evidence of a particular insurance company that would ve granted a jumbo policy to a drug user. ct enters scheduling order schedule may be modified for showing of good cause 3. P s atty did almost nothing that was required in the order. and on which that party will bear the burden of proof at trial d. RULE: In order to w/stand summary judgment motion once the moving party has made prima facie showing to support its claims. Appellate ct remanded case to a different judge (slap on face to initial judge) a. or after scheduling conference. Atty fails to participate in good faith iii. drug test results) but this evidence did not rebut the specific evidence presented by D (testimony of two co-players who witnessed deceased use cocaine). nonmoving party must come forward w/ specific facts showing that there IS a genuine issue for trial. 4. improving quality of the trial. All pretrial conferences will be followed by an order reciting the action taken at the conference (order of final pretrial conference can be modified only to prevent manifest injustice) 4. Union Pacific Railroad . 2. establishing management by the judge.Bias v. After parties conduct their 26(f) conference and submit their discovery plan. need testimony from someone familiar w/ particular events testified about OR cast more than metaphysical doubt on testimony credibility. Atty is substantially unprepared to participate in conference d. judge should ve given notice to the parties to let them respond. Rule 16(f) sanctionable behavior: a. Judge is more like manager of disputes. JUDICIAL MANAGEMENT OF LITIGATION i.
Some states permit peremptory challenges of judges. declare a mistrial IDENTIFYING THE TRIER in close cases. In re Boston s Children First judge contacted reporter to respond to lawyer s inflammatory comment to the press 1. b. must state substantial facts) iii. can only file one such affidavit in a case (must be certified by atty that it is made in good faith) if affidavit is sufficient. another judge will be assigned 1. later on during trial. Identity of the judge handling your case is extremely important b/c lawyers want information about how this judge conducts her ct ii. Ct could: grant leave to amend and grant more time to D to restructure case. you have to ask permission of the ct or written consent from other party. but there s no right to amend. if judge discovers a fact during the litigation process that would require her to disqualify. the provision that allows judges to explain procedures of the court is meant for seminars. other counsel is entitled to hear everything that goes on in the case 19 . 28 USC 455 rules for when judge must disqualify herself (subsection a is broad. in adversarial system. it matters who holds the power of decision a. Should judge have been hands-off. but no such rule in federal system 2. she was taking her shot at the lawyer. must be filed no less than 10 days before beginning of the term (or else good cause must be shown). judge could not have invited just one counsel to privately discuss the matter (ex parte). Trial ct refused to let P amend the order (this is w/in the ct s discretion) this was a case of P s counsel failing to plead an obvious theory a. 28 USC 144 party may file affidavit stating specific facts and reasons for why they believe the judge is biased. counsel motioned to amend the pretrial order to include C/A under housing code regulations 1. she may remain as the judge if she divests herself of the interest that would be the grounds for disqualification iv.. McKey v. P s atty could ve asked for extension as soon as he discovered he could not comply with the schedule (permitted in (b)(8) of Rule 16 showing of good cause ) iv. Defense could argue that they ve already structured their case and it would be prejudicial to grant leave to amend c. or ensured case was decided on merits? b. Fairbairn P set forth C/A as negligence in pretrial order. b is more specific) 1. BIAS & RECUSAL i. D loses in a sense b/c they filed all their paperwork and P had the benefit of extended time to read D s materials 2. 28 USC 351 process of filing complaint against a judge v. but facts often come up during trial a. this judge was not explaining court procedure to the reporter. not communications with tabloids 2. must show in affidavit that any reasonable person would see that the judge is biased (can t use conclusory language. Judge could/should not bring omission to counsel s attention b/c inconsistent w/ premise of the adversary system (limit surprises for opposing counsel) OR made it biased for either counsel 2. parties cannot waive necessity of judge to remove herself if it s for a reason stated in (b) 2. allow both sides to amend.pleadings can be amended in the middle of a trial. Issues at trial are limited to those presented during pre-trial. and it s granted only when justice requires b. etc.VI. P could motion to amend pleading (Rule 15) .
Filing a demand as required by rule 5(d) 2. RIGHT TO JURY TRIAL i. Failure to demand a jury constitutes a waiver iv. Common law writs: a. Mandamus 3. Courts have held that § 144 incorporates the substantive provisions of § 455 (the substantive standards for disqualification are the same under both sections) b. Historical test to determine if suit is jury-demandable: whether a given claim lay within the jurisdiction of the common law courts in 1791 5. only federal (but most state constitutions have civil jury trial provisions) ii. Seventh Amendment does not apply to state courts.a. Serving a demand to the other party. Injunction b. if judge brought both attorneys into chambers and reprimanded the attorney for making inflammatory statements to the press. District court and court of appeals judges can fill in for each other. Judge should not have said anything. court held that the case was jury demandable 1. the right of trial by jury shall be preserved 1. Cancellation c. Assumpsit g. Damages damages are generally for jury trials (this true 80% of the time) 2. where the value in controversy shall exceed $20. Terry plaintiffs (workers) filed suit against union seeking compensatory damages for back pay and benefits. Covenant d. can t comment on pending litigation vi. Party can specify in demand if they only want certain jury-triable issue to go to the jury (adversary can demand jury for the rest of the issues if it wants to) 3. but can t shrink the protections of the Constitution 6. Debt c. Seventh Amendment in suits at common law. Court has to the discretion to order a jury trial in spite of a party s failure to demand it 20 . Party can demand jury for any jury-triable issue by (can insert a demand directly into its pleading): a. looks for analogies 2. Trover & replevin f. Court first looks at whether this claim would ve been historically brought in court of law or court of equity. Chauffeurs v. Rule 39 after demanding a jury. Equity: (has some financial power so just because dollars will change hands doesn t automatically mean it s an issue at common law) a. Accountings 4. Ejectment e. AND b. Seventh Amendment right can be extended but not diminished a. Court then determines what type of remedy plaintiff seeks (legal or equitable) iii. the attorney could then turn around and claim the judge is biased and motion for recusal 3. parties via written or oral stipulation can consent to a bench trial 1. Specific Performance vs. Congress can add new claims that are jury demandable. Rescission d. Trespass b. the court operates with less justices vii. even if judge has to be brought in from another district but if Supreme Court justice is recused. Rule 38 incorporates the Seventh Amendment 1.
But if circuit court had found that case would not have survived directed verdict. form of a request (you don t get to remove juror for cause. Reexamination Clause . then the jury is a moot point (it wasn t). Challenge for cause must present good reason to believe that the juror is bias. etc. and the jury s findings control any common factual issues b. If jury trial goes first.v. Law of the Case Doctrine . Court may try any issue with an advisory jury (even if the issue is not jurydemandable). district court erred in not allowing jury trial i. no longer true today Supreme Court has allowed 6 people juries and non-unanimous verdicts 2. 28 USC 1862 discrimination prohibited 5. Amoco Oil Co. race and gender are two categories that it is impermissible for lawyer to strike based upon complex issue a. then the jury s findings of fact are binding on issues in equity actions c.) 21 . 28 USC 1861 states policy that all litigants are entitled to juries representing a fair cross section of the community. Torcomian father & son wanted to take over gas station and become franchisees a. vi. Once a fact in litigation is determined. it s determined for the entire litigation. England has abolished them (believing that random selection is the best way to get unbiased jury) 10. tone of voice. Jury trial goes first. appellate courts don t reverse trial court decisions if it doesn t matter Choosing a Jury 1. At common law. 28 USC 1867 challenging compliance with jury selection procedures 7. or may order a regular jury trial with the consent of both parties If legal and equitable claims and defenses are found in the same case 1. 2. sometimes resolution of common law issue will impact on resolution of the equity issue ii. once an issue has been decided in a case.no fact tried by a jury shall be otherwise reexamined by any court in US than according to the rules of common law. only judge gets to remove) 9. Peremptory challenges are not in Constitution and could be eliminated. and that all citizens have the opportunity to be considered for a jury 4. serves to bolster jury power by preventing trial and appellate courts from overturning jury verdicts 3. 28 USC 1870 right to 3 peremptory challenges 8. Holdings from Beacon case: i. it can t be reevaluated i. 28 USC 1865 qualifications for jury service 6. Voir Dire process of jury selection a. lawyers used to have total freedom regarding peremptory challenges (could strike juror for any reason or no reason at all). jury used to be 12 people and verdict had to be unanimous. before any hearing on equitable claims. Preliminary way for lawyer to present the case to the jury (via the questions asked. or on any challenge of the juror s competency.type of res judicata. Just because a case mixes both legal and equitable claims does not defeat the right to jury trial ii. Peremptory challenge something a lawyer does. Both sides in this case made claims that were jury-demandable. Supreme Court beginning in mid-80s held that peremptory challenges could not be used to further discrimination that was otherwise protected under the Constitution (Batson). v.
Thompson v.b. Altheimer & Gray juror said her experience as a business owner may cloud her judgment. in Fed court. circuit court reversed trial judge should not have left her in without getting an unequivocal statement from her that she could follow the judge s instructions and be open-minded 22 . in NY courts. judge conducts the whole process. Procedures vary enormously (ex. lawyers practically put on their case) 11.
CONSTITUTION Article III judicial power / jurisdiction 14th Amendment Due Process 7th Amendment Right to Jury Trial TITLE 28 USC 28 USC 144 28 USC 455 28 USC 1291 Final Judgment rule 28 USC 1292 exception to final judgment rule 28 USC 1861 28 USC 1862 28 USC 1865 28 USC 1867 28 USC 1870 FEDERAL FORMS 1-19 FEDERAL RULES 7 Pleadings Allowed. Representations to the Court. Voluntary Dismissal. Management 17 Parties Plaintiff and Defendant. Sanctions 12 Defenses and Objections a) When Presented b) How Presented (defense states in pleading except for pre-answer motions) c) Motion for Judgment on the Pleadings d) Preliminary Hearings e) Motion for More Definite Statement f) Motion to Strike g) Consolidation of Defenses in Motion h) Waiver or Preservation of Certain Defenses 13 Counterclaim and Cross-Claim 15 Amendments & Supplemental Pleadings 16 Pretrial Conferences. or Compromise in Class Action 24 Intervention 25 Substitution of Parties 23 . Form of Denial (answer) c) Affirmative Defenses d) Effect of Failure to Deny e) Pleadings to be Concise 9 Pleading Special Matters (fraud) 10 Form of Pleadings 11 Signature. Capacity 18 Joinder of Claims and Remedies 19 Joinder of Persons Needed for Just Adjudication 20 Permissive Joinder of Parties 21 Misjoinder and Nonjoinder of Parties 22 Interpleader 23(e) Settlement. Form of Motions 8 General rules of Pleading a) Claims for relief (complaint) b) Defenses. Scheduling.
etc. General 2. 27 Deposition Before Action or Pending Appeal 28 Persons Before Whom Depositions May Be Taken 29 Stipulations Regarding Discovery Procedure 30 Depositions Upon Oral Examination 31 Depositions Upon Written Questions 32 Use of Depositions in Court Proceedings 33 34 35 36 37 38 39 Interrogatories to Parties Production of Documents. Pretrial Disclosures b) Discovery Scope and Limits 1. Limitations 3. Trial Preparation: Materials 4.26 General Provisions Governing Discovery a) Required Disclosures 1. Sanctions Jury Trial of Right Trial by Jury or by the Court 40 Assignment of Cases for Trial 41 Dismissal of Actions a) Voluntary Dismissal b) Involuntary Dismissal 42 Consolidation. Initial Disclosures 2. Amendment of Judgments Relief from Judgment or Order Harmless Error 65 Injunctions preliminary injunctions and TROs 24 . Trial Preparation: Experts 5. Claims of Privilege or Protection of Trial Preparation Materials c) Protective Orders d) Timing and Sequence of Discovery e) Supplementation of Disclosures and Responses f) Conference of Parties g) Signing of Disclosures. Costs Default Judgment Summary Judgment Declaratory Judgments Entry of Judgment New trials. Things and Entry Upon Land Physical and Mental Examinations Requests for Admission Failure to Make Disclosures or Cooperate in Discovery. Separate Trials 45 47 48 50 54 55 56 57 58 59 60 61 Subpoena Selection of Jurors Number of Jurors Participation in Verdict Judgment as Matter of Law in Jury Trials (Directed Verdict & JNOV) Judgments. Electronically Stored Info. Expert Testimony 3.
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