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Step # 1: ADR - Determine whether or not there is a need to sue. (Attempt Negotiation) American Rule: all parties bear their own costs of litigation unless those costs are shifted either by a provision of a contract or by a statute. Step # 2: Forum Selection
Which State? Which Court, State or Federal? Court must have both Personal Jurisdiction and Subject Matter Jurisdiction. ♦ Personal Jurisdiction: must have had a significant connection to the defendant. The defendant must have reached out to the forum. ♦ Subject Matter Jurisdiction: State courts - all issues, state or federal. Federal courts - limited subject matter jurisdiction. Federal Courts (1) Federal Questions: (2) State law questions - diversity of citizenship and the suit involves more than $75,000. Step # 3: File the Complaint (Lawsuit) and other Pleadings
Complaint: commence the lawsuit - plaintiff must file a complaint. (Fed. R. Civ. P. 3) Elements of a Complaint: 1. 2. 3. (2)) 4. P. 11) Claim (Fed. R. Civ. P. 8(a)) Special Matters (Fed. R. Civ. P. 9) Alternative theories of recovery (Fed. R. Civ. P. 8(e) Must be Legally and Factually Sufficient (Fed. R. Civ.
Requirements for a Complaint or any other claim for relief (Fed. R. Civ. P. 8(a)) A pleading which sets forth a claim for relief, shall contain: (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks.
Pleading to be Concise and Direct; Consistency (Fed. R. Civ. P. 8(e)) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, Under Rule 8(e)(2): 1. Plaintiffs can assert as many different theories of liability as they want as long as they are legally sufficient. 2. You can testify to one set of facts at trial and you can pursue all theories of liability so long as you do not commit perjury. 3 Heightened Specificity Requirements for Pleading (Fed. R. Civ. P. 9) 1 (1). Pleading Fraud or Mistake – Rule 9(b) 2 (2).“Special Damages” Cases – Rule 9(g) (3). Situations in which Congress imposes heightened specificity requirements in a specific federal statute Dismissal of Actions (Fed. R. Civ. P. 41) ♦ Notice Dismissal - Plaintiff can dismiss a case “without prejudice” at any time before the defendant files an answer or a motion for summary judgment. Rule 41(a) (1)(i) You can only file a notice dismissal once and still be able to re-file the case. If you do it again, it is done “with prejudice” and you cannot re-file the case. A rule 12(b)(6) Motion is not a motion for summary judgment and therefore, a notice dismissal may be filed after a 12(b)(6) motion. ♦ Stipulation of Dismissal – a case can be dismissed “without prejudice” at any time (even after a notice dismissal has once been filed) as long as a stipulation is signed by all parties. We allow Plaintiffs to dismiss “without prejudice” by stipulation as many times as they want. ♦ Involuntary Dismissal - The defendant may when plaintiff (1) fails to prosecute (remained dormant for a long time) or (2) fails to comply with an order of the court. Rule 41(b) In cases of involuntary dismissal, unless the Courts specify otherwise, the dismissal acts as an adjudication upon the merits and therefore cannot be re-filed (i.e. it is dismissed “with prejudice). It cannot be re-filed (Res Judicata). Difference between a Pleading and a Motion: (1) Motions are addressed to a court. Ask to do something. (2) A pleading is a position statement.
P. ♦ Consolidation of Defenses in Motion (Rule 12(g)) . R.“ONE SHOT RULE” you get one shot at filing a pre-answer motion. File a Pre-answer Motion a. Improper Venue. 12(f)) (2). However. R. P. Lack of personal jurisdiction c. Civ. P.Twenty (20) days to file an answer to the Plaintiff’s complaint. R. b. P. 12(b) b.Scandalous or impertinent and is not necessary to the lawsuit ♦ Motion for Judgment on the Pleadings (Rule 12(c)) . Motion to Strike (Fed. if you waive service of process under Fed. 3 . Failure to join a party under rule 19 (We are mainly concerned with a. c. Insufficiency of Service of Process (improper delivery of summons) f. Civ. Motion for more Definite Statement (Fed. Motion under Fed. File an Answer (Fed. P. Insufficiency of Process (technical things that make the summons ineffective) e. (b) they are not included in the answer.Defendant’s Pre-Answer Motions (Fed. and f) ♦ Motion for a more Definite Statement (Rule 12(e)) . 4. R. 12) ♦ Time limits to respond (Rule 12(a)) . Civ. and Insufficient service of Process are waived forever if they are not (a) included in a pre-answer motion or. ♦ Waiver or Preservation of Certain Defenses Rule 12(h) Rule 12(h)(1) – Defenses based on Personal Jurisdiction. 8(b). Improper venue d. and (d)) Defenses and Objections . Insufficient Process.DEFENDANT’S RESPONSES TO COMPLAINT (1). Lack of subject matter jurisdiction b. if no pre-answer motion is filed. After the pleadings are filed. (c). R. then you have 60 days to file and answer ♦ Pre-answer defenses (Rule 12(b)) a.This is not a pre-answer motion. Civ. Failure to state a claim upon which relief can be granted g. R. P. 12(e)) c. Civ.the defendant needs more detail or facts in order to admit or deny the allegations ♦ Motion to Strike (Rule 12(f)) . Civ. has same affect as a motion for summary judgment under rule 56.
and (d)) ♦ The Answer requires 2 things (Rule 8(b)&(c)) (1). Civ. These defenses can be made in any pleading (including answer). Default and Default Judgment (Fed. R. & (C) Default occurs when one has a duty to respond to a pleading but fails to do so.An Affirmative Defense is a legal justification that a party can use to escape liability. 55(a) & (b). in a motion for judgment on the pleadings. R. 55(a)) – the party who is not in default provides the court clerk with an affidavit stating that the other party is in default. P.Rule 12(h)(2) – Provides exceptions to Rule 12(g) for the following “favored defenses”: Failure to State a Claim on which relief can be granted. P. Rule 8(c) provides a list of 19 affirmative defenses that can be used. Civ. (2). Subject matter jurisdiction can be raised at any time. (b). Failure to state a Legal Defense. or a trial. Rule 12(h)(3) – Allows for objections based on lack of subject matter jurisdiction at any time by any party. R. Failure to Join a Party. (c). This list is not exhaustive. 55(a). There is a 2step process under Fed. including the court (sua sponte). P. ♦ Entry of Default (Fed. Lack Sufficient Evidence to Admit or Deny (has same effect as a denial) If only part of the allegation is true. ♦ Default Judgment (Fed. Admit b. You can assert anything that you claim is a legal justification. P. P. then break the allegation down. Deny c. Civ.3 Ways to Respond to Allegations a. (55(b)) b. Under Rule 11. You have to act in good faith. Civ. 55(b)) a. Assert any Affirmative Defenses . By Clerk: Only when plaintiff has not appeared and the sum is certain. R. R. By Court: All other situations (55(b)) 4 . Respond to the Allegations in the Complaint . then you can’t claim that you lack sufficient evidence to admit or deny. The Defendant’s Answer (Fed. if you have reasonable access to the information or the matter is public record. 8(b). Civ.
P.entry of default under rule 55(a) set aside by a motion to the Court showing good cause. P. Amendments to Pleadings and the “Relation Back” of Amendments (Fed. Civ. Civ. Rule 15(c) because if the amendment cannot relate back. Civ. One Example: He will be prevented from doing something that he otherwise would have been able to do had the defendant not defaulted) ♦ Setting Aside Default Judgment (Fed. P. permission is required from the opposing party or the Court. The amendment is permitted to do so by the state law (Rule 15(c)(1)) ~ OR ~ 5 . 55(c)) . (1). R. Which is a lenient standard. lenient standard. 55(c) and 60(b)) . (Fed. (2) It is obvious that the party seeking permission is only amending in order to further delay the proceeding or has purposely disobeyed or ignored the Court. & (c) ♦ Parties have the right to amend once as a matter of course when (a) the responsive pleading has not been served or (b) if no responsive pleading is required and the action has not been placed upon the trial calendar. (3) There would be prejudice to the opposing party. The Court will grant permission to amend unless: (1) The amending party wouldn’t win on that amendment. The default was intentional and not due to any misunderstanding or ignorance in the law. P. R. b. he will be materially harmed in some way). Court will generally find that good cause has not been met in the following 3 scenarios: a. The party in default would not have a valid defense anyway. R. The defaulting party intentionally refused to comply. the amending party would not win and therefore the amendment will not be granted.e.♦ Setting Aside Default (Fed. (Rule 15(a)) The court will grant permission when justice so requires. In all other situations. any time within 20 days after the pleading was served. The plaintiff can show that he will be prejudiced if the default is set aside (i.The Default Judgment can be set aside by showing good cause (rule 55(c) and complying with Rule 60(b). c.) ♦ Amendments can be made to conform to the evidence presented at trial. R. 15(b)) Any evidence presented is admitted unless it is objected to because that evidence doesn’t correspond to the pleadings ♦ “Relation Back” of Amendments (Rule 15(c)) – An amendment to a pleading will be allowed to relate back or take effective as of the date on which the original pleading was filed under the following circumstances. 15(a) & (b). Civ.
(2). P. and the following requirements are satisfied: a. but for a mistake concerning the identity of the proper party. the party to be added must: 1. or occurrence set forth or attempted to be set forth in the original pleading. have received notice of the institution of the action so that the party will not be prejudiced in maintaining a defense on the merits. (He had proper notice that the suit was filed) Rule 15(c)(3)(A) . or should have known that. the action would have brought against him. (Rule 15(c)(2)) ~ OR ~ (3). know. after notice and opportunity to respond. If you are amending to change a party against whom relief is sought or add a new party against whom relief is sought. and Sanctions (Fed. 11) ♦ Signature required (Rule 11(a)) ♦ Representations to Court (Rule 11(b)) the attorney or pro se litigant is vouching for its contents by certifying that after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose such as to harass.. law firm. ♦ Sanctions (Rule 11(c)) If. Civ. the Court determines that Rule 11(b) has been violated. (Factually Sufficient) (4) the denials in an answer. R. or party subject to the following conditions: 6 . Rule 15(c)(3)(B) Adding New Parties: New parties cannot be added unless the requirements under Rule 15(c)(3) are met. you cannot not continue to “later advocate” that particular claim or fact. You do not have to withdraw things from a pleading that you later find out are untrue after the pleading is filed. If the new claim or defense pleaded in the amendment arose out of the conduct. Within the time limit provide by Rule 4(m). transaction. etc. However. Signing of Pleadings. (2) all legal contentions are supported by the law or a non-frivolous argument for changing the law. (Legally Sufficient) (3) all factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for discovery.AND 2. or increase costs of litigation. can be supported by the evidence. cause delay. Be sure and address the fact that the provisions of 15(c)(2) must be met under 15(c)(3) and that the courts apply different standards in concluding what is the proper “conduct” required under 15(c)(2) and what is a “mistake” under 15(c)(3)(B). then it may impose sanctions on the attorney. The provisions of 15(c)(2) are satisfied. etc. Representations to the Court. b.
(A) If initiated by Motion of the opposing party. itemize the specific Rule 11(b) violation(s) alleged. It can only sanction the attorney for not knowing the law. issue an order to the violating party itemizing the specific alleged violations and ordering the violating party to show cause why he has not violated rule 11(b). Can only consist of the fees and expenses incurred as a direct result of the Rule 11 violation. (B) If initiated by the Court (judge). Court cannot impose monetary sanctions after the parties have settled the case or the case has been voluntarily dismissed. if the party is acting pro se. (B) Monetary Sanctions: A fine paid to the court or a payment of opposing legal fees incurred in defending the motion or pleading that violates Rule 11. and only if. 3 Limitations on Attorney Fees as Monetary Sanctions 1. The fees must be reasonable. etc. the judge must 1. that violation is not cured within 21 days. (Show Cause Order) There is no safe harbor rule when the court initiates the sanction process. 2. and 3. Court cannot impose monetary sanctions against the party who is represented for a violation of Rule 11(b)(2) (i. prohibit practice in a particular court.) Sanctions can only be initiated by (a) a motion from the other party or by (b) a “show cause order” issued by the Court (judge). However. then the motion can be filed with the court. 2 Things Court cannot do with Sanctions 1.(Remember to be sure and establish that there is a Rule 11(b) violation before talking about sanctions. 2. Sanctions must be limited to what is necessary to deter repetition of such conduct by others similarly situated. Can only be awarded when sanctions are initiated by the opposing party on motion (i. failing to know the law). be made in a totally separate document (i. ~VERY IMPORTANT~ 7 . be served upon the violating party at least 21 days before it is filed with the Court (Safe Harbor Provision) The violating party has 21 days to cure the alleged Rule 11(b) violation and if. the motion must 1. then he is not represented and can be sanctioned for violating Rule 11(b)(2). 3. ordering a lawyer to attend a CLE on ethics.e. it can’t be included in another document). Sanctions can be non-monetary or monetary. Anything more is excessive and cannot be sustained. (A) Non-Monetary Sanctions: writing a letter.e.e. they cannot be awarded when initiated on Court’s initiative). 2.
did the court issue an order awarding the sanctions that specifies the conduct determined to constitute a violation of Rule 11 and explaining the basis for the sanction? (11(c)(3)) (6). the judge must (11(c)(1)(b)) 1. all legal contentions are supported by the law or a non-frivolous argument for changing the law. If monetary sanctions were awarded. Rules 26(g) and 37(a)-(d) provide for sanctions in Discovery. Is there a document that is presented. and only if. it is not being presented for any improper purpose such as to harass. be served upon the violating party at least 21 days before it is filed with the Court (Safe Harbor Provision) The violating party has 21 days to cure the alleged Rule 11(b) violation and if. the denials in an answer. (5). to the court? (Rule 11(a)) (2). or increase costs of litigation. the motion must (11(c)(1)(a)) 1. (B). and 3. be made in a totally separate document 2. issue an order to the violating party itemizing the specific alleged violations and ordering the violating party to show cause why he has not violated rule 11(b). There must be a written document filed with the court for Rule 11 to apply. then the motion can be filed with the court. that violation is not cured within 21 days. itemize the specific Rule 11(b) violation(s) alleged. (Factually Sufficient) (11(b)(3)) (4). PROCESS USED TO SOLVE RULE 11 PROBLEMS OE (1). (Show Cause Order) There is no safe harbor rule when the court initiates the sanction process. Go through Rule 11 Step-by-Step. or later advocated. Were the Sanctions properly initiated by the party or by the court? (A). cause delay. Was there a violation of Rule 11? 3 The attorney or pro se litigant is vouching for the document’s contents by certifying that after an inquiry reasonable under the circumstances: (1). (11(b)(4)) (4). etc. Work through and address each section. If initiated by Motion of the opposing party. If initiated by the Court (judge). (Legally Sufficient) (11(b)(2)) (3). If awarded. (11(b)(1)) (2). can be supported by the evidence. were they proper? 8 . Was it signed by the attorney or pro se litigant? (Rule 11(a)) (3). all factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for discovery.♦ Not Applicable to Discovery (Rule 11(d)) – Rule 11 does not apply to discovery.
16(f) Discovery (Interrogatories. Civ. Civ. Were they excessive? (They must be limited to what is sufficient to deter similar conduct from others) (11(2)) (b). R. Mandatory Disclosures . R. Fees must be limited to those incurred as a direct result of the Rule 11 violation.) The scheduling order must be entered “within 90 days after the appearance of a defendant and within 120 days after the complaint was served on the defendant. Informal: client. It can only do so if sanctions were initiated by the party.Fed. opposing party’s documents. (11(2)) c. Civ. Discovery: “formal” information gathering Methods of Discovery 1. P. P. 16(e) Sanctions for Violations of Rule 16 . Formal: (“DISCOVERY”) opposing party. P. P. 4. client’s documents and records. 3rd parties that you do not trust. If the Court awarded Attorney Fees: a. Court cannot award monetary sanctions against a represented party for a Rule 11(b)(2) (“Legal Insufficiency”) violation! (11(2)(a)) (d). 3. b. 16(a) Scheduling Order (mandatory) . Civ. (11(2)) b. P. (11(2)(b)) Pretrial Conferences. R. etc. 5. it cannot impose any “monetary” sanctions unless the show-cause order was issued prior to a settlement or voluntary dismissal. 2. P.Fed. 3rd parties that you trust.Rule 26(a) Depositions – Rule 30 Interrogatories – Rule 33 Production of Documents and Things Rule 34 Medical Exams – Rule 35 Requests for Admissions – Rule 36 9 . 16(b) Final Pre-trial Conference (court’s discretion) . Fees must be reasonable. R. If Court initiated sanctions. Civ. Management (Fed. 16) ♦ ♦ ♦ ♦ ♦ Step # 4: Scheduling Conference (court’s discretion) . (11(2)) (c). 6.Fed. Depositions. R.” Rule 16(b)(6) Information Gathering a.Fed. Civ. Scheduling.(a). R.Fed. 16(d) Final Pre-trial Order (if pre-trial conference is held) .
Depositions can be taken anywhere. B. You can subpoena them under rule 45 and compel them to show up. R.Interrogatories. All parties to the litigation can be deposed without a subpoena and any rd 3 party witness may be deposed but they do not have to show up voluntarily. 30) ♦ When depositions may be taken and when leave (subpoena or court’s permission) is required.Fed. P. Copies of any insurance agreements that could be used to satisfy the judgment if you lose. Duty of Disclosure (Fed. 4.Fed. 2. in any building or place that is convenient. address.e. Name. The notice must be sent to the person who is going to be deposed. Documents that you may use to support your case. Medical Exams. R. 30(b) 1. There is no way to get out of mandatory disclosures. if a party was joined after said conference was held. ♦ The deposing party must send out a Notice of Examination .Fed. It must include the date. the notice is sufficient. D. P. You may only depose people with knowledge as required by Rule 26 (i. R. All information available must be disclosed at the required time and anything obtained later must be supplemented. E. If given to a 3rd party witness. 26) ♦ Mandatory Disclosures . and place at which the deposition will take place. and Admissions can only be used on parties only. time. Categories of cases exempt from mandatory disclosure.Fed. P. General Provisions Governing Discovery. Mandatory disclosures must be supplemented at any time when further information becomes available . Production of Documents & Things. . any witness that either side has mandatorily disclosed under Rule 26). then they must be made within 30 days after being served or joined. it must also be accompanied by a subpoena issued by the court under Rule 45. 26(a) A. Civ. not non-parties. Depositions can be taken by court reporter or video. P. Calculations of any Damages if you are claiming damages. Civ. and Each deposition may only last 1 day or 7 hours total unless given permission to take longer by the court or stipulated by the opposing party. If given to a party. & phone # of all witnesses that you may use to support your case. Civ. 3. P. R. Mandatory Disclosures must be made within 14 days after the Rule 26(f) conference or. R. P. C. 26(e) Depositions upon Oral Examination (Fed. You can only take a total of 10 depositions unless given permission to take more by the court or stipulated by the opposing party. Civ. ♦ Role of the Opposing Lawyer whose Client is being Deposed 10 . Civ. 30(a) 1. R. Civ. 2. A court reporter or officer of the court under Rule 28 must be present.
2. Grounds for objection (6 acceptable grounds by Rule 26(b)) must be stated specifically and. 3. ♦ Procedure – Fed. anything thereon. They cannot be served before the Rule 26(f) discovery planning conference unless the serving party has permission of the court or the parties have stipulated otherwise. You are protecting privileged information. if objection is not made. Civ. Answers must be returned within 30 days unless agreed otherwise by court order or stipulation between the parties. 33(b) 1. it is waived unless failure to assert it is excused by the court. A party may request permission from the other party to enter upon land to inspect.Fed. The answers must be signed by the party and objections must be signed by the attorney.) 2. 34(a) 1. (b). Civ. 33) ♦ Availability (Parties Only) (Rule 33(a)) . 4. Civ. (If you are the attorney conducting the deposition. which includes discrete subparts. P. Civ. Make Objections based on Privilege or Subject Matter Limitations You can Object and Instruct your client not to answer if.1. R. More interrogatories may be served and the response time may be enlarged with permission of the court or stipulation of the parties. Civ. Make Objections for the Record. ♦ Answers and Objections – Fed. which pertain to the form of the question (i.) THE WITNESS STILL MUST ANSWER. Each interrogatory must be answered separately and fully in writing under oath. You are terminating the deposition to seek an order from the court limiting the subject matter. and only if: (a). custody or control that aren’t objected to. A party may request that another party produce any document(s) or tangible things in his possession. R. etc. 2. it is vague. 5. (c). R. etc. P. the question assumes facts not in evidence. The interrogating party can then go the court and seek an order compelling you to answer. Interrogatories (Fed. R. R. 34) ♦ Scope . 34(b) They cannot be served before the Rule 26(f) discovery planning conference unless the serving party has permission of the court or the parties have stipulated otherwise. always make the witness answer even though opposing counsel objected.Without leave of the court or stipulation between the parties. photograph. P. compound. 11 . The court has previously determined that the subject matter inquired about is off limits (subject matter limitation).e. a party may serve upon another party up to 25 interrogatories. They must provide their responses within 30 days. which will be granted if the judge deems the objection improper Production of Documents and Things (Fed. P. P. test.
3. the documents do not have to be produced unless later compelled by court order. The objecting party must state the objection and the basis for the objection (there are 6 acceptable grounds for objection under rule 26(b)). Civ. Request for Admissions (Fed. R. Scope of Discovery (Relevance and Objections) (Fed. you can force them to come and inspect them where “they are normally kept in business. 36) ♦ Request for Admissions – (Rule 36(a)) . Answers must be returned within 30 days unless expanded or limited by court or stipulation of parties.Responses must be returned within 30 days unless extended or shortened by the court or by stipulation of the parties. 2. R. permits the admission to be withdrawn or amended. place. 34(c) A person who is not a party may also be required to produce documents or things but they must be compelled to do so by subpoena under Rule 45. 35) ♦ Order for Examination – (Rule 35(a)) . P. P. Civ.Any matter admitted is conclusively established unless the court. ♦ Effect of Admission – (Rule36(b)) . 26(b)(1) 1. Civ. ♦ Persons Not Parties – Fed. ♦ Objections to Discovery – Fed. time. 26(b)(1)) Information is only discoverable if it is Relevant and Not Privileged! ♦ Legal Relevance: anything that will tend to make a fact that is a part of any claim or defense asserted more or less true. A party can get information that is not relevant to a claim or defense asserted if the court will enter an order expanding the scope of discovery. P. Civ. Legally relevant information does not have to be admissible at trial in order to be discoverable. R.A party can request that another party admit any relevant matter in order to narrow the issues for trial. R. 1. Only things that are in the “possession. P. Civ. and scope of the exam. Non parties cannot be forced to submit to an examination. A party can also be restricted from getting information that is relevant to any claim or defense asserted if the court will enter an order restricting or limiting discovery under Rule 26(b)(2). P. manner.A party or someone in the custody or legal control of a party may be ordered by the court to undergo a physical or mental exam when necessary. You do not have to make copies for the other side. Information requested is not legally relevant (as defined above). If the party fails to respond. on motion. Physical and Mental Exams (Fed. R.” If a party objects. 12 . The order may only me issued upon motion and showing of good cause and it shall specify the date. custody or control” need to be produced. Documents must be produced (1) as they are normally kept in business or (2) organized in a manner consistent with the request. the matter is deemed to be admitted. So long as it is reasonable. conditions.
Also. Objection to form of the question (will only require the other party to clarify. etc. After the opposing party receives the report. Work Product Privilege (Fed. conclusions. the expert can be deposed and anything provided to the expert. They must provide the opposing party with a report under rule 26(a)(2)(b) of their opinions. Prepared in anticipation for litigation. not privileged). including attorney. data. but the party will eventually have to answer). qualifications. P. (Rule 26(b)(5). as part of the mandatory disclosure. based on privilege without telling the other party that it is being withheld. 26(b)(3)) ♦ Scope: Discoverable materials are considered work product if they are: (a). if you voluntarily tell someone. The cost of production outweigh the possible benefits 6. ♦ 3 Questions to address with Privilege: (1) Does a privileged relationship exist? (2) What is the scope of the privilege? And (3) Has the communication be preserved (e. it is still protected if it contains mental impressions. You cannot freely withhold info. 26(b)(4)) ♦ Testifying Experts: Name and information must be provided as a mandatory disclosure. not facts. Expense is not a factor. Expert Witnesses (Fed. Civ. “Undue Hardship”: the party cannot get the information any another way. 5. P.g. etc. R. The communication is no longer privileged). the privilege is effectively waived. 4. (b). “Substantial Need”: determined by the Judge. ♦ Protection: Work Product is protected from discovery unless the discovering party can show (1) Substantial Need AND (2) Undue Hardship. attorney communications with witnesses that is written down is work product. Information is privileged (applies only to attorney-client communications. you must state so and generally define the nature of the information and state the basis for the privilege. Documents or Tangible things. Production is too expensive or burdensome. R. is freely discoverable because it serves as a basis for his opinion. Some Court will consider the possibility that a witness may lie and therefore conclude that there is an undue hardship and force disclosure of notes from witness interviews.2. opinions. If you withhold information based on Privilege. The party already has or had reasonable access to the requested information but failed to get it. 3. Civ. 13 . HOWEVER. whether privileged or not. or legal theories of an attorney or other representative of the party concerning the litigation. Prepared by or for (1) the party or (2) the parties representative or agent. (c). The judges usually favor the discovering party on objections on the grounds of relevance.
Consulting Experts: Experts that you have talked to about your case but did not hire or retain. (b). not interposed for any improper purpose. it may impose any sanction that it deems appropriate on the violating party. he is the only expert in the field or you have retained all experts in the field). and Objections (Fed. 14 . Civ. not unreasonable or unduly burdensome or expensive. or to cause unnecessary delay or needless increase in the cost of litigation. Is the material “in play”? Must be either (a) a mandatory disclosure or (b) requested under the Rules of Discovery (Rules 32-36). modification. STEPS FOR SOLVING DISCLOSURE PROBLEMS OE (1). If the Court finds that a party has violated this rule. the attorney or party certifies that to the best of the signer’s knowledge. consistent with the federal rules and warranted by existing law or a good-faith argument for the extension. If the expert is retained but not testifying. 26(g)) Every discovery response or disclosure has to be signed by the attorney or by the party. is discoverable because it serves as a basis for his opinion. More than likely they are the one’s who disagreed with your case. etc. given the needs of the case. If the expert has knowledge of the facts. Responses. the amount in controversy.” Information regarding non-retained experts is not discoverable at all. (2). if there is no attorney. Does it fall within the Expert Restriction of Rule 26(b)(4)? All information shown to a testifying expert. response. Is it generally discoverable under Rule 26(b)(1) & (2)? Is it relevant and not privileged? Can it be objected to under Rule 26(b)(2)? (3). his knowledge of those facts is not immunized from discovery regardless of whether he is or is not retained. ♦ Fact Witnesses who are also “Experts”: If the so-called “expert” was also a witness to the facts.? (4). Is it protected as Work Product under Rule 26(b)(3)? Is it a document or tangible thing? Was it prepared in anticipation for litigation? Can discovering party show substantial need and undue hardship? Is it protected anyway as an opinion. or reversal of existing law. the facts or opinions he has are always freely discoverable as if he were any other witness to the facts. Consulting Experts: Information does not have to be disclosed as a mandatory disclosure and is only discoverable under “exceptional circumstances. Signing of Disclosures. or objection is: (a). By signing. and the importance of the issues at stake in the litigation. formed after a reasonable inquiry.e. and belief.♦ Retained. such as to harass. including work product or attorney-client privileged information. legal theory. R. Discovery Requests. Their names or other information are NOT discoverable. then you only have to give the information up under “exceptional circumstances. the request. information. ♦ Non-retained.” which means that it is impractical for the discovering party to get facts or expert opinions on the subject by other means (i. P. the discovery already had in the case. and (c).
or can. if the so-called “expert” was a witness to the facts. Being an expert does not immunize them factual discovery. the facts and opinions he has are discoverable as they would be for any other witness.In all cases. can Sanctions be imposed under Rule 37(a)-(d) or under Rule 26(g)? Has a Motion been filed? Does a Motion need to be filed? Are sanctions available? Have the predicates to the sanction been met? Were the sanctions imposed appropriate? _____________________________________________________________________________ _ 15 . Has. (5). a Motion been filed under Rule 37? If so.
If there is no certificate. At any rate. In addition. the party has to try to use it at trial and thus the other party objects because the information was never previously disclosed. if there was no good faith conferral. At any rate. and any sanction authorized under (a). (d). if there was no good faith conferral. except that it must ultimately be determined or “found-out” (e. or (c) of Rule 37(b). 16 . Establish facts (b). P. Civ. All expenses and fees incurred in proving the fact at trial. 37(d) Complete failure to respond Failure to comply with a Court order Failure to make Automatic Disclosures. sanctions will not be awarded if the moving party prevails. or (c) of Rule 37(b).). etc. Find the party in contempt Preclusion from use at trial. Failure to Admit Predicate(s) for Sanctions None Motion after good faith conferral The Motion must contain a certificate certifying that the moving party made a goodfaith attempt to contact the other party and resolve the dispute. Prohibit the party from entering evidence to support or oppose a claim or defense. (c). Appropriate Sanction Anything the Court deems appropriate The loser has to pay the prevailing parties fees incurred in making or defending the motion unless: * If the movant prevails. R. The party responds but his answer has been so evasive or misleading as to be construed to be no answer at all to part of the request. sanctions will not be awarded if the moving party prevails. etc. the movant made a good faith conferral and was substantially justified in making the motion.Fed.g. expenses caused by the failure to disclose. None. there was no good-faith conferral or the non-disclosing party was substantially justified * If the non-disclosing party prevails. The Motion must contain a certificate certifying that the moving party made a goodfaith attempt to contact the other party and resolve the dispute. Take action on the merits by dismissing a claim or defense or striking something from a pleading. If there is no certificate. Only that there was a prior Court Order in place The party must prove the fact at trial and then make a motion for sanctions for failure to admit the fact in the discovery request. the court may not entertain the motion at all. (b). the Court may also: (a). # 26(g) False Nature of Certification Violation DISCOVERY SANCTION RULES (not Rule 11 Pleading Sanctions) 37(a) 37(b) 37(c) Partial failure to respond. Motion after good faith conferral. the court may not entertain the motion at all. The Court shall award expenses resulting from the failure to comply unless the failure was substantially justified. (b). All expenses and fees resulting from the failure to respond and any sanction authorized under (a). including failure to supplement prior mandatory or prior requested disclosures.
Thus. then the judge will not hear it for summary judgment purposes. 17 . ♦ If the non-moving party has any admissible evidence that. a party can rely on circumstantial evidence to avoid summary judgment. ♦ Burden of Proof required to get Summary Judgment Plaintiff’s Burden: The Plaintiff has to have admissible evidence sufficient to prove or support at least an inference (circumstantial evidence) of all elements of her claim as required by the substantive law. Circumstantial Evidence: The evidence can be either direct evidence or circumstantial. then the jury could believe it at trial. It relies on inferences. the case will not go the jury because she cannot prove the elements of her claim (no prima facia case). or (2) that he is entitled to summary judgment based upon an affirmative defense. would support or prove his position. Defendant’s Burden: The Defendant has to show either (1) that the plaintiff lacks sufficient admissible evidence to prove the elements of her claim. P. Direct Evidence: evidence that. would support a fact at issue. It does not directly establish the fact by itself. So long as the circumstantial evidence supports an inference of a material fact. R. you must be relying on evidence that would be admissible if the case went to trial. if believed. in cases where the Plaintiff has no proof. They are material if they are relevant to the elements or defenses required by the law. Circumstantial Evidence: evidence that provides an inference that. Our system allows a party to rely on circumstantial evidence. ♦ Direct v. 56) Summary Judgment: the undisputed facts compel judgment for one party as a matter of law. if believed. If the jury wouldn’t be able to hear it at trial. the case may still go to the jury because the jury is free to not believe the plaintiff’s evidence. Civ. ♦ Evidence must be Admissible at Trial: Whether you are moving for or disputing summary judgment. it would directly establish the fact at issue by itself. if believed. JUST BE ABLE TO RECOGNIZE THIS ISSUE: In cases where the Defendant has no proof at all. However. ♦ Material Fact: the facts that are “material” is defined by the substantive law.Step # 5: Dispositive Motions (Motion for Summary Judgment) Summary Judgment (Fed. unless there is a valid defense and the moving party has sufficient evidence to establish the defense. then summary judgment cannot be granted.
Mandate a finding for the Defendant.e. admissible evidence proves that he isn’t liable due to an affirmative defense. (2). Steps used to determine whether the case falls within any of the 3 scenarios above: (1). The disputed fact must be both material and genuine or the case will not go to trial. Support a finding for the Plaintiff. Is there a genuine.e. then SJ should be granted for the Plaintiff. relevant to the substantive law)? If not. Is the fact material (i. (c). (b). then the case must mandate a finding one way or the other. Is the dispute genuine (i. Step # 6: Trial (with or without jury) Jury Trial of Right (Fed. then SJ should be granted for the Defendant. If so. P. then the case mandates a finding one way or the other. (Rule 38(a)) 18 . could it prove all the elements of her case)? If not. then the case will NOT go to trial. then the case will go to trial unless the Defendant’s undisputed. does it: (a). then the case should go to trial and SJ is not proper. If so. R. If so. Does the Plaintiff’s admissible evidence support the elements of her cause of action (i. disputed material fact? If not. 38) ♦ Right Preserved: If you have a right to a trial by jury either under the 7th Amendment or as given by a United States statute. then the case will go to trial because credibility is a question for the jury. (a). (b).STEPS FOR SOLVING SUMMARY JUDGMENT PROBLEMS OE Primary SJ Question: If this case sent to trial on the facts as we have them today. Civ. Mandate a finding for the Plaintiff. then that right is preserved. could the jury permissibly credit either side’s evidence)? If so. if the jury believed the evidence.e. If so.
In determining whether or not the suit is for legal relief. Generally. The value in controversy exceeds twenty dollars ($20). you have a right to a trial by jury if: (1). 7th Amendment doesn’t apply to States: the 7th amendment does not extend to the states through the 14th amendment because it does not involve a civil right.000 at stake) then the court must look at the state’s constitution and statutes to determine whether or not there is a right to a trial by jury. (Rule 38(b) (1)&(2)) The Demand for Jury Trial will only be granted if the court determines that you do in fact have a right to a jury trial under the 7 th amendment or a U. R. then the court will conclude that suit is for legal relief. one in law and one in equity.S. the case involves a state question. and (2). The nature of the issue involved (not necessarily the cause of action). Judgment as a Matter of Law (JMOL) (Fed. if the federal court is hearing the case based upon its jurisdiction in diversity of citizenship cases (i. Therefore. if the remedy sought is monetary damages (except in restitution cases). Statute: If Congress specifically included the right to a jury trial in a statute. ♦ Demand: In order to exercise your right to a jury trial. then. Any party can demand the jury trial so long as it is done within 10 days but it will only be granted if the court determines that the party does in fact have that right. Civ. The suit is for common law (legal relief. If the remedy sought is for non-monetary relief (includes restitution).e.S. not equitable relief). 50) 19 . then the suit is for equitable relief. such as specific performance. you must serve a “Demand for Jury Trial” on the other party(ies) within ten (10) days of your receipt of the Complaint or Counterclaim and you must also file a copy with the court. the legal claim will be heard by the jury first and the judge will then decide the equitable claim based upon the evidence presented at trial. (b). so long as the jury trial was properly demanded. U. P. The Remedy sought (Most Important Part of the Analysis). The Oklahoma Constitution provides for a trial by jury for common law cases involving one hundred dollars ($100) or more. statute. the court looks at 2 things: (a).7th Amendment: Under the 7th amendment. the parties are from different states and there is more than $75. 2 Claims – one Legal and one Equitable: If there are 2 claims. then you have that right if the suit involves that statute.
(2). he can simply re-instate the jury verdict rather than retry the case. either Plaintiff or Defendant may move for JMOL. (Rule 50(b)) ~Only a party may renew the motion for JMOL. the party may “renew” his motion for JMOL once the jury returns a verdict. He construes the evidence in favor of the non-moving party and determines whether there is any evidentiary support sufficient for the jury to find in favor of the non-moving party. he then presents his evidence. Therefore. before the case is submitted to the jury. (4). The court will not do so sua sponte ~ In ruling on a motion for JMOL. Plaintiff presents her evidence.Once a party has been fully heard on an issue and the court concludes that there is no evidentiary support sufficient to support a verdict in favor of the claim or defense. then if it is overturned on appeal. ♦ General Process for JMOL (1). The renewing party must have moved for JMOL after the close of all evidence. After all evidence is closed. After he rests. or both. The court will not enter JMOL sua sponte ~ If the party moves for a JMOL immediately after the close of all evidence. It doesn’t matter if he did so at any other point in the trial. If either. Defendant moves for JMOL. and that motion was denied. before the case goes to the jury. the court uses the reasonable jury standard. ~Only a party may move for JMOL. then the case goes to the jury for deliberation. If the party does not move for JMOL after the close of all evidence before the case is submitted to the jury. Also. (Rule 50(a)(1)) Any party may move for a JMOL at any time before submission of the case to the jury so long as the opposing party’s evidence has been heard. After she rests. he will NOT be able to do so after the jury renders its verdict. then all evidence is closed. (Rule 50(a)(2)) The party may move for JMOL immediately after opposing party presents his evidence or immediately after all parties have presented their evidence (at the close of all evidence). if he waits until after the verdict to grant JMOL. 20 . the court may grant judgment as a matter of law. If he believes there is. parties’ motions are denied. Courts are very reluctant to grant JMOL before the jury returns a verdict because they do not want to have to re-try the entire case again if the JMOL is reversed on appeal. then he will deny the motion for JMOL. The motion must fully specify the facts on which the party is entitled to JMOL. If Defendant’s motion for JMOL is denied. juries do not like to have their time wasted. (3).
§ 1292. Final Decisions of the District Court (28 U.C. R. § 1291) There is no Constitutional right to an appeal. § 1291) All final decisions can be appealed to the appropriate circuit court of appeals. a. (2) resolve important questions separate from the merits. and (3) that are effectively unreviewable on appeal after final judgment is rendered may be reviewed on appeal prior to the final judgment. or (3) there is misconduct by counsel.C. (28 U. the order can be immediately appealed under 28 U. Right to Appeal (28 U. if the District Court grants an injunction or certifies an order for immediate appeal. Summary Judgment: Summary judgment decisions may or may not be “final judgment” depending upon whether or not they are granted. The same goes for Rule 12(b)(6) Motions. he “firmly” believes the jury verdict was wrong).S.S. All three (3) elements must be met! (3).S. 28 U.(5). or (2) there is newly discovered evidence within 10 days of the verdict. (2). New Trials (Fed. Final Judgment Rule: After a final judgment is entered in the District Court. However. § 1291 has been construed as granting parties the right to appeal.S.C. Parties have the right to appeal in the following 3 scenarios: (1). (Rule 59(a)). Collateral Order Doctrine: the District Court’s orders that are (1) conclusive. either party may renew his or her JMOL. 21 . If DENIED. Interlocutory Appeals Granted by Congress: Generally. so long as he or she previously moved for JMOL at the close of all evidence. Step # 7: Appeal Function of Appellate Court: the appellate court review the lower court’s decisions to determine if the lower court made a material error (error which would or could effect the outcome of the case) in its interpretation or application of the law. Civ.e. 59) If (1) the jury renders a verdict that the court believes is against the weight of the evidence (i. then he or she may not renew the motion for JMOL at all.C. not facts. then the judge can grant a motion for a new trial.S. If not. Motions for Judgment on Pleadings. and Motions to Dismiss. P. § 1291).C. Once the jury returns its verdict. then it is not a final judgment because the case goes on.
Contempt Orders: do satisfy the collateral order doctrine. (3) that are effectively unreviewable on appeal after final judgment is rendered All three (3) elements must be met! Sanction Orders: Sanction Orders do not fall under the collateral order doctrine because. (3). It is not a final judgment. Appeal must materially advance the ultimate termination of the lawsuit. then it is a decision on the merits and thus a final decision. District Court may certify an order for immediate appeal. they are not separate from the merits and are reviewable after final judgment. If GRANTED. § 1292(a) Required Criteria for Appeal of an Order certified by the District Court (1). After certified. (4). Does the party have the right to appeal? 22 . (6). the circuit court has the right to refuse to hear the appeal until after a final judgment. Collateral Order Doctrine: some orders of the District Court can be appealed prior to the final judgment so long as they are: (1) conclusive. Even if the order is certified for immediate appeal. Must Actually Put you out of Court: a trial judge’s refusal to certify a class action is not appealable as a final judgment. § 1292(a) (2). You can purposely get the lower court to find you in contempt under Rule 37 so that you can get an appeal of a discovery issue. PROCESS FOR ADDRESSING APPEALS OE 1. The case will not go on if summary judgment is granted. The order must actually terminate your ability to try the issue in court in order to be classified as a final judgment. § 1292) (1). (5). although they are conclusive.b. The controlling question must be a matter of law. the appeal must be taken to the appellate court within 10 days. There must be a controlling question to the lawsuit.C. (2). Interlocutory Appeals provided by Congress (28 U. (2) resolve important questions separate from the merits.S. There must be substantial ground for a difference of opinion. and. but it is risky. There must be an Order in place. Injunctions are immediately appealable.
Is it conclusive? AND ii.S.C. not the facts! 23 . Has there been a final judgment (i.S. Is there an Injunction (Interlocutory Appeal – 28 U. Is it separate from the merits? AND iii. is the party “put out of court”) (Final Judgment Rule)? b.a. § 1292)? ii. Is the Order that is sought to be appealed a Collateral Order (Collateral Order Doctrine)? i. If there is a right to an appeal. § 1292)? Requirements: It must be (1) an Order (2) involving a controlling question (3) of law and there must be (4) substantial ground for a difference of opinion and (5) the appeal must materially advance the ultimate termination of the lawsuit and (6) it must be taken to the appellate court within 10 days.e.C. Is there an Order Certified for Appeal by the District Court (28 U. Is it reviewable on appeal after final judgment? c. what is the appellate court’s (Appropriate Circuit Court of Appeals) role? Appellate Court’s Role: Review the lower court’s decisions to determine if the lower court made a material error (error which did or could effect the outcome of the case) in its interpretation or application of the law. Is there an Interlocutory Appeal granted by Congress or an Order Certified for Appeal by Congress? i. 2.
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