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Civ Pro 2.

Terms in this set (154)

Pleadings are and include
A legal document demanding a response from the opposing party. Includes complaint and answer and if court ordered a reply to an answer
Discovery factors
The importance of the issues at stake in the action
the amount in controversy
the parties relative access to relevant information
the parties resources
the importance of the discovery in resolving the issue
whether burden outweighs benefits
Motion is and requirements
A legal document requesting an order from the court. Requires; (1) motion to be in writing unless made during a hearing or trial; (2) State with particularity the grounds for seeking the order; (3) state the relief sought
FRCP 8
pleading must state a claim for relief and must contain:
(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no jurisdictional support; (2) A short and plain statement of the claim showing that the pleader is entitled to relief - Iqbal requires that (a) court takes factual allegations as true but not legal conclusion (b) Taking all the factual allegations as true, do they plausible state a claim for relief.
(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief.
FRCP 10: Form of pleadings
(a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
Iqbal Requirements
o (1) Court takes factual allegations as true but not legal conclusions
o (2) Taking all the factual allegations as true, do they plausibly state a claim for relief?
Pleading Steps after plaintiff serves and files complaint, D does nothing
Default Judgment
Pleading Steps after plaintiff serves and files complaint, D makes appearance, but no motion or pleading
Default judgment
Pleading Steps after plaintiff serves and files complaint, D makes appearance, makes 12(b)(6)
a. If denied - Defendant must answer
b. If granted as to entire case - must appeal
Pleading Steps after plaintiff serves and files complaint, D makes appearance, 12(e) motion for definite statement
a. If Denied - Defendant must answer
b. If Granted -
When can default be pursued
When a party against whom a judgment for affirmative relief is sought has failed to
· (a) Plead
o Did not answer
· (b) or Otherwise defend
o Failed to respond to 12(b) motion
Default Steps
(1) Entry of default; (2) Judgment of default
Default requirements
P must show D failed to plead by providing to clerk a Affidavit: A sworn and typically notarized document of facts
i. Must layout all relevant dates and that D failed to respond
1. Date complaint was filed, served
ii. (a) failed to respond within 21 days after proper service of summons and complaint
iii. (b) failed to respond 14 days after notice of early motions failure
When clerk notes entry defendant cannot and must
file an answer
and must vacate judgement
Judgement of Default can be entered by who
Clerk or by the court
Default by clerk
· If amount is for sum certain or sum that can be made certain through computation
o (a) plaintiff may file affidavit showing amount due
o (b) clerk must enter judgement for that amount against a defendant who has defaulted by not appearing
Default by court
1. Court will review Complaint for sufficiency under 8(a)(1)(2)(3)
2. Court will apply remedies
a. Remedies are limited to those listed in the complaint. (FRCP 54(c))
b. May be monetary or equitable
Setting aside entry of default
1. Set aside Entry of Default for "Good Cause". FRCP 55(c)
a. Good cause may be broad or narrow, necessitates case law research in your jurisdiction
2. Set aside Judgement of Default for "mistake or excusable neglect"
a. Strict standard
Timing for representative to appear (default)
If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.
To effectuate judgment (default ) court may conduct a hearing to
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
Rule 12 Motions:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
Timing of rule 12 motions
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim
FRCP 12(e): Motion for a More Definite Statement.
is so vague or ambiguous that the party cannot reasonably prepare a responseIf the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
FRCP 12(f): Motion to Strike
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
Four Waivable Challenges
(b)(2) Lack of Personal Jurisdiction
(b)(3) Improper Venue
(b)(4) Insufficient Process
(b)(5) Insufficient Service of Process
Four Waivable challenges exception
A challenge will not be waived if responsive pleading is amended within the time period for amending as a matter of course (21 days)
Timing of Rule 12 Motions (D)
D must file response after being served with summons and complaint 21 days after being served with summons
D timing to answer after failed 12(b)(6)
14 days after notice of courts action
Three basic responses of D
Admit, Deny, Lack of knowledge or information
If allegation is partly true
D must deny only part of the allegation that is true and admit the part that was true
If D fails to deny a non-damages allegation
if not relating to damages, will be considered admitted
FRCP 8(c) Affirmative Defense
In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense
Affirmative Defense Definition
An assertion by a defendant that raises new facts and arguments that defeat the plaintiffs claim even if all of the allegation in the complaint are true
Rule 11 requires
Signature on presenting documents, which includes o (1) Pleadings,
o (2) Motions,
o (3) Other papers except discovery documents [briefs, etc.]
Rule 11 signature requirements
(1) Name:
(a) at least one attorney of record, or
(b) by party personally if they're unrepresented,

(2) Requires:
telephone number, address, and email
Rule 11, if unsigned
(1) the court will strike the paper unless promptly corrected
Rule 11 Representations to the court
By presenting to the court a pleading, written motion, or other paper an attorney or unrepresented party certifies that to the best of the persons knowledge information and belief, formed after inquiry reasonable under the circumstances:

·
Rule 11(a)(1)
· (1) The paper has a proper purpose
o Not to harass, cause unnecessary delay, or needlessly increase cost of litigation
Rule 11(a)(2)
· (2) The claims, defenses, and other legal contentions are warranted by existing law or by non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law
o Warranted by existing law
o Nonfrivolous argument
§ Evidentiary support
o Unethical for lawyer knowingly to fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
Rule 11(a)(3)
· (3) [Evidence for P] The factual contentions have evidentiary support, or will likely have evidentiary support after a reasonable opportunity for further investigation
Rule 11(a)(4)
· (4) [Evidence for D] The denials of factual contentions are warranted on the evidence or are reasonably based on belief or lack of information
Rule 11 specialist standards
· Court may hold specialist to higher standard, a generalist acts at his own peril by filing a suit in a field which he is unacquainted
Snapshot Rule
o State of mind at the time of presenting that serves as the basis for deciding whether your paper complied with the rule
How much must an attorney investigate
Depends on:
(a) the time available to investigate
(b) The probability that more investigation will turn up important evidence
Rule 11 Sanctions: party initiation
· (1) initiated by filing a motion and must be made separately from other motions
o Describes the specific conduct that allegedly violates 11(b)
· (2) Must be served on the offender 21 days before filed with court (SAFE HARBOR)
Rule 11 Sanctions: Court Sua Sponte
· 11(c)(3) requires court to order offender to issue a show cause order
· Show cause order:
o Requires attorney to explain why they should not be sanctioned
· No safe harbor periods
Rule 11 Sanctions
Monetary
· Reasonable expenses, including attorney fees, incurred for the motion
o Usually, attorney's fees are only awarded on motion
Non-Monetary
· Continuing legal education, oral reprimands, bar from practice
Limitations on sanctions
Must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated
· The Court must not impose sanctions
o (a) against a represented party for violating 11(b)(2)
o (b) on its own without show cause order
FRCP 6: Motions for extensions of time
Before time has expired
· Movant must show good cause
After time has expired
· Movant must show excusable neglect
o Will not work for mistakes, ignorance of the rules, heavy caseloads
Amending applies to
Pleadings and motions
Amending as a matter of course
· (a) Within 21 days of serving the document
· (b) If the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a Rule 12 motion, whichever is earlier
Amending as a matter of course route 2
In all other cases, a party may amend its pleadings only with the opposing parties written consent or the courts leave.
Amending with leave of court and foman factors
· (a) Court should freely give leave when justice so requires
· Foman Factors (REQUIRED LANGUAGE)
o The court should allow the amendment in the absence of . . .
§ (1) Undue delay, bad faith, or dilatory motive on the apart of the movant
§ (2) Repeated failure of the movant to cure deficiencies by previous amendments
§ (3) Undue prejudice to the opposing party by virtue of the amendment
· Generally, burden of additional discovery does not constitute PP
· Preparation prejudice
§ (4) Futility of the amendment
· Legal futility
o Court will analyze proposed amendment as if it were before the court on a motion to dismiss pursuant to 12(b)(6)
o Do not volunteer a Foman Factor unless it can be satisfied
If P amends how long does D have to answer
· D has 14 days from service of amended complaint
When is amending back allowed
(1) The law that provides the SOL allows relation back
(2) The amendment asserts a claim or a defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading
(3) amendment changes the party or the naming of the party against whom a claim is asserted
· If 15(c)(1)(B) is satisfied AND
· If within the period provided by rule 4(m) for serving the summons and complaint (90 days after complaint is filed)
Amending back T/O Test
· Same set of operational facts
o Time, Space, Circumstances
· Requires commonality of facts
Amending back change of parties
· (1) must satisfy T/O test
· (2) within rule 4(m) (90 days)
o (i) Received such notice of the action that he will not be prejudiced in defending on the merits
o (ii) knew or should have known that the action would have been brought against him had P not made a mistake concerning the proper parties' identities
FRCP 26(a) Required Disclosures
· (1) Witness Info
o Name, address, telephone number of each person likely to have discoverable information that the disclosing party may use to support is claims or defenses unless osley for impeachment
· (2) Documentary Info
o A copy of all documents and things in the possession or control of the disclosing party that she may use to support her claims or defenses unless solely for impeachment
· (3) Damages
o Computation of damages claimed
· (4) Insurance
o The defendant must identify any insurance agreement under which an insurer may be liable to satisfy all or part of the judgment
Initial disclosure time period
at or within 14 days after the parties rule 26(f) conference
Expert Witness Disclosure?
a party must disclose any the identity of any witness presenting expert testimony
Expert witness disclosure is accompanied by
unless ordered otherwise, EW disclosure must be accompanied by a written report, prepared and signed by the witness, is the witness is retained or specially employed to provide expert testimony
Written report requirements
(1) a complete statement of all opinions the witness will express and the basis and reasoning for them
(2) the facts or data considered by the witness in forming them
(3) any exhibits that will be used to summarize or support them
(4) the witnesses qualifications including a list of publications dating ten years back
(5) a list of cases dating 4 years back in which the witness has testified
(5) a statement of compensation
Timing requirements re expert witness disclosure
90 days before trial . If opposing party has expert witness under same subject matter, within 30 days of other party's disclosure
Additional pre-trial disclosure
(1) the name, address, and telephone number of each witness if not already disclosed - separated into may and will call
(2) Designation of of witnesses who will present via deposition and transcript of pertinent parts of the deposition
(3) identification of documents including summaries of other evidence separated by will use and may use
Additional pre-trial disclosure time period
30 days before trial,
Objections to pre-trial disclosure time period
within 14 days
Work Product Protection Applies to
(1) Work prepared in anticipation of litigation
(2) or for trial by a party
(3) or by or for the partys representative
WPP can be overcome by
A party showing it has a substantial need for the materials to prepare its case and cannot without undue hardship obtain their substantial equivalent by other means
Discovery House Rule
House Rule: 5 years back before the earliest date of alleged liability
Scope of discovery
· (1) Non-privileged matter
· (2) Relevant to a claim or defense
· (3) Proportional to the needs of the case, considering multiple factors
o Burden / Benefit Balance
· (4) Information within scope of discovery need not be admissible in evidence to be discoverable
Discovery required supplementation
· Parties are required to supplement disclosures and written discovery if:
o (1) The information is some material respect is incomplete or incorrect and
o (2) The additional or corrective information has not otherwise been made known during discovery or in writing
Discovery limitations when permitted
· Court may alter limits on the number of depositions and interrogatories
Discovery limitations when required
· On motion or on its own, court must limit the frequency and extent of discovery if determined
o (1) Discovery sought is unreasonably cumulative or duplicative or can be obtained from another source that is more convenient, less burdensome, or less expensive
o (2) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action
o (3) the proposed discovery is outside the scope permitted by 26(b)(1)
Written Discovery
o (1) Interrogatories
o (2) Requests for production
o (3) Requests for admission
Oral Discovery
o (4) Medical Examinations
o (5) Depositions
Discovery motions require
*Motions must first include certification moving party attempted to confer with non-moving party
Discovery Motions
1) FRCP 37(a)(1): Motion to compel
Asks the court to order the other party to provide the requested for discovery
· Contents
o Required disclosures
o Answers to interrogatories
o Answer to particular questions
o Production of documentation

(2) FRCP 26(c)(1): Motion for protective order
Asks the court to order that certain discovery not be had or to order some other constraint on discovery
· Contents
o Relevance, privilege, work product, proportionality
o Forbid certain discovery
o Certain topics off limits
o Certain Categories of documents not produced
o Confidentiality
· Court
o Generally disapproves of general objections to specific request
The loser on discovery motion
typically pays the winners costs and fees
Interrogatories
Written questions that must be answered in writing under oath
· Presumptively limited to 25, including all discrete sub-parts
Interrogatories limitations
· Cannot reach outsiders to litigation
· Limited to
o (1) Non-privileged matter
o (2) Relevant to a claim or defense
o (3) Proportional to the needs of the case, considering multiple factors
§ Burden / Benefit Balance
o (4) Information within scope of discovery need not be admissible in evidence to be discoverable
Interrogatories Sub-Parts
Must be related rather than distinct
· Related
o Advisory Committee Guidance
§ (1) Time
§ (2) Space
§ (3) Speaker
§ (4) Content
o Common law
§ Common theme
§ Logical or factual relation
Timing of response to interrogatories
*Must be answered within 30 days of service
Response to interrogatories
(1) Answers to Interrogatories
Responding party must:
· (1) Respond to reasonable inquiries
· (2) The responding party can write narrative answers or produce business records
· (3) If partial objection
o Must answer what is not objected to
· (4) The person who answers must sign them, and the attorney who object must sign objections
Objections to Interrogatories
(2) Objections to Interrogatories
· (1) Privileged
· (2) Not relevant to claim or defense
o Often combined with overbroad
· (3) Not proportional
o Unduly burdensome
· (4) Too far removed from admissible evidence
o Fishing expedition
· * Objections must be signed by attorney
RPD Time Limit to answer
*Time limit: must be answered 30 days after service of RFP
RPD cannot be used to
*cannot be used to make party create a new document
RPD limitations
o (1) Non-privileged matter
o (2) Relevant to a claim or defense
o (3) Proportional to the needs of the case, considering multiple factors
§ Burden / Benefit Balance
o (4) Information within scope of discovery need not be admissible in evidence to be discoverable
RFA time limit to answer
Time Limit: 30 days after service
RFA, if not answered
· If not answered - admitted against you
RFA limitations
· Yes/ No answers
· Parties only
(1) Non-privileged matter
(2) Relevant to a claim or defense
(3) Proportional to the needs of the case, considering multiple factors
Burden / Benefit Balance
(4) Information within
Depositions definition
Questions answered under oath
Who can be deposed
· Parties and non-parties w/ subpoena
· 30(b)(6) reps of corporations
Depositions presumtive limit
· 10 depositions
o Each limited to 1 day of 7 hours
§ Court may change limit if circumstance or person delays
Depositions scope
· (1) Non-privileged matter
· (2) Relevant to a claim or defense
· (3) Proportional to the needs of the case, considering multiple factors
o Burden / Benefit Balance
· (4) Information within scope of discovery need not be admissible in evidence to be discoverable
Depositions objections
Noted but still must be answered unless combined with protection
Depositions protections
o Work product
o Privilege
o Court order
Bad faith conducting
If deposition is being conduct in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, a party may:
o File motion to Terminate or Limit
o Deposition will be suspended for the time necessary to obtain an order
Order for examinations requires that
Physical or mental health must be in controversy
Order for examination must be made
(A) Good cause and on notice to all parties and the person to be examined
(B) Must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it
*Mere relevancy is not enough
MENTAL EXAMINATION Case law factors
One must be present to order mental examination
(1) P has asserted a specific cause of action for intentional or negligent infliction of emotional distress
(2) P has alleged a specific mental or psychiatric injury or disorder
(3) P claims unusually severe emotional distress
(4) P offered expert testimony in support of her claim for emotional distress
(5) Plaintiff concedes that her mental condition is "in controversy" within the meaning of Rule 35(a)
ACP applies to
communication, not the underlying facts
ACP documents covered
memos, attorney notes and thought processes, interview notes
ACP communications covered
interviews, emails, letters; client cannot be compelled to answer the question: what did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.
ACP who holds privilege
attorneys, clients, and if the client is a corporation, its employees pertaining to the suit
Attorney Client Privilege
May be invoked in four situations
· (1) A communication
· (2) Made between privileged persons
o Client or prospective client
o Client's lawyer
o Agents of either who facilitate communications between
o And agents of the lawyer who facilitate representation
· (3) in confidence
· (4) for the purpose of obtaining or providing legal assistance
· * Communication is privileged although facts are not
Corporate Privilege
· (1) Matters within scope of employee's corporate duties
· (2) Employees were aware that they were being questioned in order to obtain legal
Waiver of ACP
· Intermediate Approach
o 1) the reasonableness of the precautions taken to prevent inadvertent disclosure
o (2) the number of inadvertent disclosures
o (3) the extent of disclosures
o (4) any delay in measures taken to rectify the disclosure
(5) overriding interest in justice
Waiver of ACP · Strict approach
o No waiver because once disclosed no expectation of confidentiality
FRCP 37(b)(2): Failure to comply with courts discovery order
Sanctions;
· (1) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
· (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
· (iii) striking pleadings in whole or in part;
· (iv) staying further proceedings until the order is obeyed;
· (v) dismissing the action or proceeding in whole or in part;
· (vi) rendering a default judgment against the disobedient party; or
· (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
FRCP 41: Voluntary Dismissal By the plaintiff
· Without court order by filing (1)
o A notice of dismissal before the opposing party serves either an answer or a motion for SJ
FRCP 41: Voluntary Dismissal
By the plaintiff · Without court order by filing (2)
o A stipulation of dismissal signed by all parties who have appeared
FRCP 41: Voluntary Dismissal
By the plaintiff, stipulation timing
· Before complaint is filed
· After significant discovery
· After D loses SJ motion
· Before or during trial
· On Appeal
FRCP 41: Voluntary Dismissal By the plaintiff
· Without court order effect
o Unless notice or stipulation states otherwise, the dismissal is without prejudice
o But if the plaintiff previously dismissed any federal or state court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits
FRCP 41: Voluntary Dismissal
By court order
o If not without court order is not satisfied, an action may be dismissed on terms that the court considers proper.
o If defendant has pleaded a counterclaim before being served with plaintiffs' motion to dismiss, the action may only be dismissed if the counterclaim can remain pending for independent adjudication.
FRCP 41: Voluntary Dismissal
By court order Effect
o Unless otherwise stated, a dismissal by court order is without prejudice
Involuntary Dismissal
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it
Involuntary Dismissal Effect
o Unless otherwise stated a dismissal under this rule and any dismissal not under this rule except for lack of jurisdiction, improper venue, or failure to join under rule 19, operates as an adjudication on the merits
In Ruling on a Summary Judgment Motion, Court should not
· Weigh the evidence
· Assess credibility of witnesses
· Does not determine the truth of the matter
In Ruling on a Summary Judgment Motion
Court should
· Take all of the evidence, and justifiable inferences in light most favorable to the nonmovant
Summary Judgement Standard: 56(a)
Summary Judgement is to be granted if there is no genuine dispute as to any material fact, and the movant is entitled to judgement as a matter of law.
Material Fact
· Defined by the substantive law and will affect the outcome of the case
Genuine Dispute
· A reasonable jury could find for the nonmovant
o Not every dispute is genuine, sometimes dispute is so one sided that it is not a genuine dispute. Scott v. Harris (videotape case)
Time to File a Motion: 56(b) SJ
A party may move for Summary Judgement anytime until 30 days after the close of all discovery
· Local rule or court order may alter timing
Procedures: 56(c)(1)(A)
(1) A party asserting a fact cannot be or is genuinely disputed MUST support the assertation by:
A) Citing to particular parts of the record
§ Depositions
§ Documents
§ ESI
§ Affidavits or declarations
§ Stipulations
§ Admissions
§ Interrogatory answers
§ Other materials

OR (B) Showing materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support a fact
When facts are unavailable to nonmovant 56(d): (early SJ motion)
If nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court MAY:
(1) defer considering the motion or deny it
(2) allow time to obtain affidavits or declarations or to take discovery
(3) issue any other appropriate order
Failing to support or address a fact: 56(e)
If a party fails to support an assertion of fact or fails to properly address another party's assertion of fact as required by 56(c) the court MAY:
(1) give an opportunity to properly support or address the fact
(2) consider the fact undisputed for purposes of the motion
(3) grant summary judgement if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it
(4) issue any other appropriate order
Entry of Summary Judgement is appropriate
(1) After adequate time for discovery, upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial
The Movant on Summary Judgement
(1) give basis for summary judgement motion, identifying the evidence that demonstrates the absence of a genuine dispute of material fact
Options for movement who does not bear BOP
(1) Submit affirmative evidence that negates an element of the nonmovant case
(2) Argue that the NM evidence is insufficient to prove an essential element upon which that NM would have the burden of proof. (absence of proof).
Option for movement who does bear BOP
(1) present so much evidence that it would receive a JOML at trial
When burden of proof is implicated, it must be
· "Trial BOP"
When to use movant non-movant
· Use non-movant (P/D) and movant (P/D) at start of paragraph, then drop NM and M.
Bench Trials
52 Judge must
(1) find facts
· SOR: Clearly Erroneous
o Finding will not be disturbed unless AP is left with a definite and firm conviction that a mistake has been made
o Looks to entire record
(2) conclusions of law
· SOR: De Novo
(3) Entry of Judgment
Right to A Jury Trial
38 (a): right to jury trial is preserved by
· (1) Seventh Amendment
o For suits at common law where the value in controversy exceeds $20
§ Does not cover equity or admiralty
o Common law
§ Torts, Contracts,
§ As of 1791
· (2) Federal Statute
o If statute gives an individual a private right of action
§ (1) Analogize to COA/claim existing in 1791(weighs less)
§ (2) Analogize to remedies existing in 1791 (weighs more)
o If statute is does not give private right of action
§ No jury trial right
§ No jury trial right where government is plaintiff
o Legal Claims / Remedies
§ Malpractice
§ Damages
o Equitable Claims / Remedies
§ Injunctions
§ Restitution of profits
§ Disgorgement of profits
§ Backpay
· Sum Jury trial outcome
o Law + Law = Jury
o Draw + Law = Jury
o Equity in either step = Bench
Demand for JT
A party demands a jury trial by including the demand in a pleading no later than 14 days after the last pleading directed to the issue is served
Three types of verdicts
(1) General Verdict
· Do you find by a preponderance of the evidence a violation of [Y/N]
(2) Special Verdict
· One question for each element of claim [Y/N]
(3) General with answers to written questions
· Mix of the above two
o If answers to GV does not match answers to SV questions, SV will rule
Challenges to jurors
Challenges for Cause:
· (1) Based on statutory requirements
· (2) Based on exhibited bias or prejudice
Peremptory Challenges
· 3 strikes for any reason except
o (1) Race
o (2) Gender
Post-Trial Motions: Directed Verdict and JNOV: can motions for extension of time be presented
FRCP 6 prevents motions for extension of time for post-trial motions
(a) Directed Verdict (applies only to jury trials) Occurs when
Occurs before verdict has been entered
(a) Directed Verdict (applies only to jury trials) Elements
· (1) a party has been fully heard on an issue
· (2) and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue
o Legally Sufficient Evidence
§ Court will examine non-moving party's evidence
§ Court will examine moving parties uncontradicted and unimpeached evidence
o Court may
§ Resolve issue against the party
Motion for directed verdict must contain
· (1) Judgement sought
· (2) Laws and facts that entitle the movant to judgment
(b) JNOV / or in the alternative motion for new trial (rule 59) timing
Movant must have file motion within 28 days after entry of judgement
JNOV FRCP rule
court must find that a reasonable jury would not have a legally sufficient evidentiary basis to enter a verdict for the prevailing party
JNOV case law rules
o (1) Court must analyze the evidence in the light most favorable to the non-movant
o (2) Must not engage in weighing or evaluation of evidence or consider questions of witness credibility
o (3) All the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the nonmoving party
o JNOV accords the jury's verdict substantial deference
§ However, the jury cannot be accorded the benefit of unreasonable inferences or those at war with the undisputed facts
If JNOV is granted, what must judge do
If JNOV is granted, a judge is obligated to rule on a conditional motion for new trial
Upon denial for JNOV
Motion for NT may still be granted
NT FRCP rule
A new trial may be granted for any reason for which a new trial has heretofore been granted
· Two reasons why NTs have been granted
o (1) Process Problems
§ Must be serious enough to raise questions about the proceedings
· (a) Judges' instructions to the jury were erroneous
o Must look at packet as a whole
· (b) Important evidence may have been improperly included or excluded
· (c) Lawyer misconduct
· (d) Juror misconduct
§ If judge believes allowing result to stand would be unjust, the judge has discretion to order a new trial
o (2) Outcome Problems
§ A new trial may be granted if the jury verdict is against the clear weight of the evidence
In ruling on NT motion judge may
o (1) Judge may weigh the evidence and can assess credibility of witness
o (2) Can grant new trial even where there is substantial evidence to sustain a verdict
o (3) If the trial results in a miscarriage of justice
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