*** Pleading *** y Rules at glimpse Rule 7: Pleadings and formats Rule 8: Pleading Rules: sufficiency Rule 9: Heightened

pleading requirement Rule 11: Signing, representation, and sanction (prevent untruthful/frivolous claims) Rule 12: Defenses Rule 15: Amendament Functions of Pleading 1. NOTIFY- Notify the parties and the court of the nature of the claims and defenses 2. FACTS - Present FACTS to support claims/defenses 3. EVALUATE - Helps court to 1) evaluate merits of claims and 2) narrow the range of issues to resolve the issues Rule 8(a) General Rules: Claim for Relief o Applications  Can be used when pleader prepares COMPLAINT  Can also be used when responds in ANSWER to court s or D s MOTION to dismiss (for failure to state a claim) o General Requirement 1. Subject matter juris. SHORT+ PLAIN statement of the grounds of court s jurisdiction 2. Personal juris. SHORT+PLAIN statement claiming the pleader is entitled to relief 3. Demand for relief sought o Swierkiewicz v. Sorema N.A y Discrimination case does NOT require heightened pleading requirement y Sufficiency of pleading y Prima facie case is not a pleading requirement. y A FAIR NOTICE to D of P s claim and the grounds upon which it rests y Mere labels and conclusions would NOT be sufficient. y A well-pleaded complaint may proceed even if appears that a recovery is very remote and unlikely. o Twombly and Iqbal cases: 1. P must plead FACTS supporting a PLAUSIBLE claim SUGGESTING the entitlement to relief. y Plausible = above speculative level . NOT conceivable, NOT possible. y Factual allegation with facial/suggestive plausibility 2. Ct will ignore the CONCLUSIONS of law 3. Ct will use its own experience and common sense to determine if a claim is plausible Rule 8(d) Alternative and inconsistent claims o 2 or more alternative statements of a claim are allowed. Pleading is sufficient if any statement is sufficient. o Inconsistent claims or defenses are allowed in one case. Rule 9(b) Heightened Pleading standard o 9(b) Requires greater PARTICULARITY (i.e. more details) than in Rule 8(a)

Rule 9(b) is invoked when there is sufficient identification of the circumstances constituting FRAUD and MISTAKE 1. Too easily fabricated 2. Too potentially detrimental an effect to D (e.g. D s reputation)  Allows D to prepare an adequate answer to the allegations.  In addition to 9(b), Congress is authorized to impose heightened pleading requirements for claims. 9(g) SPECIAL damage requires SPECIFICITY (Special damage Not ordinarily flow from event)

Rule 12 Reponses to a complaint: Defenses and Objections o Modes of responses: 1) MOTION, or 2) ANSWER  Motion: 1. It is NOT pleading: it raises various legal defects and defenses. 2. It is a request for court order!  Answer: 1. It is pleading: D responds to specific allegations in P s complaint. 2. 12(1)(a): Answer to Complaint, answer to crossclaim or counterclaims, and reply to an answer must be served within 21 days thereafter. o 12(b) Enumerated defenses  Key elements y 12(b)(6): failure to state a claim upon which relief can be granted.  Basis for invoke 12(b)(6) defense o Factual inadequacy: P failed to claim enough factual detail, under 8(2)(a). (NOTE - It is about adequacy, NOT truthfulness of the fact. o Legal inadequacy: D is not legally liable even if P s alleged facts are true.  Invocation of 12(b)(6) o Ct can DISMISS P s complaint on the basis of LACK of PLAUSIBILITY o D can file motion to dismiss alleging P failed to plead facts showing PLAUSIBLE entitlement to relief. y 12(b)(7): indispensible party problem failure to join under Rule 19. Waivable and Non-waivable y 12(b)1: NEVER waived. Subject matter jurisdiction. y 12(b) 2,3,4,5: Put it in your FIRST Rule 12 response. Waivable defenses o If NOT raised in the first response (Answer or Motion), then GONE!!! (cannot be raised subsequently) y 12(b) 6,7: can raise anytime during trial. 12(c) Motion for judgment on the pleadings  Can be invoked when movant believes the info of the pleading alone entitles the movant to relief, as a matter of law. 12(e) Motion for more definite statement  Generally this Motion is disfavored because pleading meets 8(a)(2) 12(f) Motion to Strike  Used by P to challenge the legal sufficiency of D s defense (e.g., for redundant, immaterial, impertinent or scandalous matter.) 

o o

o y

 Mirror 12(b)(6), which is used by D to challenge the legal sufficiency of P s claim  Generally this Motion is disfavored. 12 (h) Waving and preserving certain defenses

Rule 8(b) Modes of Response o Admit: Respond to the substance of the allegations o Deny: Respond to the substance of the allegations  General denial v. Specific denial 1. General denial denies everything! 2. Specific denial admit something in an allegation and denial the rest. o Should be used in most instances (specific denials)  Failure to deny = Admission!! o Lack of sufficient information or knowledge  Has the effect of a denial.

*** Joinder *** y P is master of his claim. o P can decide WHAT claims will be asserted Claim joinder o P can decide WHO to sue party joinder/Defendant joinder o P can decide WHO to join to sue the D party joinder/Plaintiff joinder

A. Rule 13 - Claim Joinder o Rule 18(a):  Claimant can assert any number or types of claims, independent or alternative, as the party wants. Very Broad!!  Applies to claim, counterclaim, crossclaim, 3P (3rd party) claim. o Rule 13 (a)(b) Compulsory Joinder vs. Permissive Joinder  Rule 13(a) Compulsory claims MUST be joined in the parties pleadings y If the counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party s claim. (STO same transaction or occurance ) y Purpose: To prevent re-litigation of the same issues and duplicate claims litigated in different forums.  Rule 13 (b) Permissive claims MAY be joined in the parties pleadings o United States v. Heyward-Robinson Co  In order for the District Court to have jurisdiction over the Stelma job counterclaims, the Court must have ancillary jurisdiction from the Navy job claims or there must be an independent jurisdictional basis.  Need for discerning D s counterclaims as Compulsory or Permissive y Compulsory District ct. has ancillary jurisdiction over claims District ct has jurisdiction over Stelma (non-federal) claims. B. Rule 20(a) Party Joinder 1: Permissive Party Joinder o Rule 19, compulsory (party) joinder, is NOT REQUIRED. o Party Joinder scenarios  P joinder: {P1, P2, } D.  D joinder: P1 {D1, D2, }  D joins 3P (to hold 3P liable) o Permissive Party Joinder  Rule 20(a)(1) Plaintiff Joinder y Requirement: 1) Ps assert right of relief, jointly or severally, relating to or arising out of the same transaction or occurrence (STO) or series of transaction or occurrence; 2) Common facts OR common question of law will arise in the action  Rule 20(a)(2) Defendant Joinder y Requirement: 1) Ds assert right of relief, jointly or severally, relating to or arising out of the same transaction or occurrence (STO) or series of transaction or occurance; 2) Common facts OR common question of law will arise in the action  NOTE y Purpose of joinder is to promote trial convenience and expedite the final determination of disputes, and prevent multiple lawsuits.

Rule 20(a) does NOT REQUIRE parties to be joined even when the criteria are met. At least initially, the joinder decision is left to the Ps. P is the master of the claim. This is also knows as plaintiff autonomy. STO requirement o All logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. o Rule 20 permits all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identify of all events is unnecessary. Common question of law or fact requirement o Does NOT require that ALL questions of law and fact raised by the dispute be common. o Ps may suffer DIFFERENT effects, but they should all share a common underlying issue raised by Ps. o All logically related entitling a person to institute a legal action against another are generally regarded as comprising a STO.

C. Rule 14- Party Joinder 2: Impleader/Third Party Practice 4 (: Claim (the main claim ) y Or, 4 {(, ( }: Party/( joinder 20(a)(2) y Or, {4, 4 } (: Party/4 joinder 20(a)(1) ( 4: Counter-claim 13(a) (b) (If it is Defense but rather than counter-claims, then Rule 12). y If the counterclaim arises out of the STO as the claim P has against D 13(a) compulsory counterclaim (raise it, or lose it!) y If the counterclaim is UNRELATED to the main claim 13 (b) permissive counterclaim ( ( (or 4 4 , when 4 responds to ( s counter claim): y NOTE o (and ( are co-defendants, i.e. in the main claim, 4 sues both ( and ( . o ( s Cross-claim against his co-party ( is optional. y Types of Claims ( ( o If the claim is related to the claim 4 has against ( (or, arises out of the STO as the main claim ) 13(g): Cross-claim o If the claim is totally DIFFERENT than the claim 4 has against ( 18(a) o NOTE- If the only claim ( against ( is unrelated to the main claim, then it is NOT cross-claim. ( may still sue ( under 18(a) ( (: In response, ( may counter-claim against ( o If ( s claim is RELEVANT, then it is compulsory counterclaim 13(a) o If ( s claim is IRRELEVATNT, then it is permissive counterclaim13(b) ( 3P1 ((=3P_4, 3P1 = 3P_():14(a) Impleader y ( brings in 3P1 (i.e. implead 3P1) who may be liable to ( for any recovery 4 claims in the main claim. y Examples: 1) Contribution in Tort (3P1 is contributorily negligent); 2) Indemnification (3P1 is the insurer and ( is the insured, and under the liability insurance, 3P1 should indemnify ( ). y The chain 4 ( 3P1 suggests that: o 3P1 (3P_() s liability to ( really depends on the outcome of the main claim 4 (.

o If 4 does not recover from (, ( will have no right of contribution against 3P1. 3P1 (: 3P1, the impleaded party, may escape liability by defeating (, EITHER against the thirdparty claim (under 14(a)(2)(A) and (B)) or against the main claim (under 14(a)(2)(C)) NOTE: 3P1 is counter-claim against (, even attacking the main claim. 3P1 4: 3P1 can also have direct claim against 4 under 14(a)(2)(D), if it arises from STO as the main claim. 4 3P1: 4 can have direct claim against 3P1 (i.e., bypass () y If the claim is related to the claim 4 has against ( ((or, arises out of the STO as the main claim ) 14(a)(3); y If the claim is totally DIFFERENT than the claim 4 has against ( 18(a) 3P1 NP: 14(a)(5) 3P1 further brings in a non-party, who MAY be liable for part or all of the claims against him. 4 3P2 (4=3P_4, 3P2 = 3P_(): 14(b) y Occurs when 4 received a counterclaim from (, and 4 brings in a third party 3P2. D. Rule 24 - Party Joinder 3: Intervention y Allows a non-party ( absentee ) to bring herself to the litigation. y To do so, the absentee must TIMELY file a MOTION to intervene. y 24(a): When can non-party intervene? o Absentee has a RIGHT to intervene and become a party to the case. o 24(a)(1) Statutory right under the federal statute o 24(a)(2) Absentee claims 1. an INTEREST relating to the subject matter of the underlying litigation; (e.g., the potential outcome of the underlying case would harm the absentee) 2. his interest may be IMPAIRED if the absentee is not allowed to intervene; 3. his interest is NOT adequately represented by those parties already in the action. y 24(b): Permissive intervention o Situations when ct may allow a non-party to become a party. E. Rule 22 - Party Joinder 4: Interpleader F. Rule 21 Party Joinder 5: Misjoinder G. Rule 23 - Class Action y Key issues y A 2-step approach the ct uses to certify a class (see below) y If allowed, named representatives will be permitted to sue on behalf of a class. y Step 1 - Rule 23 (a): Prerequisite for class action (MUST MEET ALL) y Numerosity: Class must be sufficiently numerous that joinder of all members is impracticable. y Commonality of questions of law or fact y Common nucleus of operative fact

Core issues to justify it. Typicality: The representative parties interests, claims, and defensive are typical of the class. y Adequacy of Representation: Named class members have to be representative of the class. Step 2 Rule 23 (b): Types of class action (MUST MEET ONE of the following) y Rule 23(b)(1)(a): Separate actions by class members would create a risk of inconsistent adjudications/results, or as a practical matter, would impair the interests of other absent members of the class. y Rule 23(b)(2) when D has acted or refused to act in a way generally applicable to the class, so that injunctive or declaratory relief is appropriate for the class as a whole (e.g. most civil rights actions); y Rule 23(b)(3) There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. y Most common for "damage" class actions. y Notice will require "opt-out" possibility y Court must assess more requirements: o The common questions of law or fact "predominate" over individual issues. o The class action approach is "superior" to other approaches.  Ex: Plane crash- all different injuries, very personalized, each person can get their own lawyer. o The "manageability" of the class action: How difficult is it to manage such a class. y y

*** Discovery *** y Connections to Pleadings o Pleading (complaint/answer) provides a tentative view of the parties positions based on preliminary research and investigation o Through Discovery, parties can amend pleadings to conform to their evolving understanding of the disputes (and may find ADR other than litigation) o Discovery is much more limited in criminal than in civil cases. Discovery devices o (Rule 30) Oral Deposition o (Rule 33) Interrogatories o (Rule 34) Request for Production of documents, ESI, and things (RFP) o (Rule 35) Physical and mental examination o Requests for admission (RFA) Rule 26(a)(1)A Initial Disclosure o Initial disclosure must be made without awaiting discovery request. Usually provided as early as possible. o Things must be provided in the initial disclosure 1. ID (name, address, phone) of each discoverable person; 2. Subject of discoverable information; 3. A copy of documents, ESI, and tangible things that the disclosing party has in possession and may be used in claims or defenses 4. Computation of categorized damages 5. Insurance and indemnification documents Rule 26(a)(2) Disclosure of Expert Testimony o Things must be provided 1. ID of any witness the party is to use at trial to present evidence; 2. If witness is trial expert (to provide expert testimony) or the party s employee who regularly gives expert testimony, then written report prepared and signed by witness need to be disclosed. y Expert witness s qualification: publication (10 years); testifying history (4 years, at trial or by deposition); statement of compensation to be paid. y Statement of opinion and reasoning: the opinions expert will present; basis of reasoning; supporting facts or data; exhibits to be used to summarize the opinion. Rule 26(b)(1): Scope of Discovery Relevancy + Nonprivileged + Reasonably calculated o Generally it is very broad. Any matter relevant to the subject matter involved in the action may be admitted rather than simply a claim or defense of any party. o Requirements: 1. Nonprivileged 2. Relevant to any party s claim or defense (i.e., ONLY issues framed by parties pleadings NO NEW issues to be brought up by discovery) 3. Relevant to the subject matter involved in the action 4. Appears reasonably calculated request 5. Subjected to limitations in Rule 26(b)(2)(C) o NOTE 1. Relevant info need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

2.

Relevant defined: Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.

Rule 26(b)(2)(C): Limits on Discovery o Rules of limiting the frequency and extent of the discovery: Discovery is NOT allowed if 1. The discovery sought is UNREASONABLY cumulative or duplicative, or can be obtained from other sources that is more convenient, less expensive, or less burdensome 2. The party seeking discovery has had ample opportunity to obtain the information by discovery in the action by the requesting party itself 3. Rule of proportionality: Discovery expense and burden cannot far outweigh the benefit information can provide. Rule 26(b)(2)(B): Limits on Discovery of Electronic Information o Electronic media: Accessibility, Large volume, significantly burdensome to discover. Requesting Party The info requested are 1) facts; 2) not opinions or conclusions of adverse party s council; 3) not seeking communications between A/C in the opposing party. Relevant to the claims and the subject matter Not duplicate nor cumulative No opportunity (e.g. witness died) to discovery by itself Not so expensive or burdensome for responding party to perform discovery Responding Party A/C privilege Work Product immunity

Privileged Info

y y

Relevancy Cumulativeness and Duplications Requesting Party s Opportunity Rule of Proportionality ( substantial undue burden )

Not relevant. Cumulative and duplicative Requesting party has ample opportunity to do its own discovery Discovery is too expensive or burdensome, far outweighing the benefit that info may provide. E.g. Technical difficulty (e.g. media evidence inaccessible or not reasonably accessible); Too much time and effort and cost; significant impact on business (trade secrets, customer trust) y Cost/time (readable media in other party s equipment) y Importance of the issue y Benefit to one party and harm to the other balance issue Bad faith request. Would be

Good Faith/ Good Cause

Request under good faith

(Rule 30)

Asserting Privilege and Protections (Rule 26(b)(5)) Work Product Protection (Rule 26(b)(3))

without annoying, embarrassing or oppressing the other party through discovery. y Predicting info how this would be helpful predictively to the requesting party? y Reasonableness Responding party failed to declare in the privilege log the materials that are privileged or protected against discovery Exceptions to the workproduct protection applies: y Requesting party is in substantial need of this info; y Requesting party cannot obtain this info by itself, without substantial undue hardship.

annoyed, embarrassed or oppressed if the discovery is to be conducted.

Asserts that the requested info y Is protected from discovery under Work product immunity; y Exceptions to workproduct immunity do not apply because o No undue hardship for requesting party to do its own discovery; OR o Requesting party fails to assert substantial need of this info. y Exceptions to the workproduct immunity does not apply because the document include party s mental impressions, conclusions, opinions, and legal theories, which is NEVER discoverable

Cost Shifting 1. What are the parties resources? 2. Benefits to one or both parties 3. Alternatives Good example is sampling: instead of granting the discovery of all requested info, only a sample of discovery/info is granted, considering the costs. Rule 26(b)(3): Work Product o Definition: Documents and tangible things that are prepared IN ANTICIPATION OF LITIGATION or for trial by or for another party or its representative (other party s attorney, consultant, surety, indemnitor, insurer, or agent) 1. In anticipation of litigation Nature of doc and the factual situation in the particular case suggest the document is prepared because of the prospect of litigation.

3 rules regarding Work Product Immunity 1. (General Rule) Documents and tangible things prepped in anticipating of litigation that contain information that can reasonably be obtained through other means discovery is barred. 2. ( Need and Hardship Exception ) Otherwise discoverable under Rule 26(b)(1) ( relevancy+ not privileged + reasonably calculated ), if the requesting party shows SUBSTANTIAL NEED for the material to prepare for its case; AND requesting party can NOT obtain substantially equivalent info by other means without UNDUE HARDSHIP, the discovery may be allowed. 3. (Exception of the Exception) The responding party s mental impressions, conclusions, opinions, and legal theories are NEVER discoverable!! Privilege Waiver: 1. Why waive the privilege? Because PRIVILEGE REVIEW can be very expensive and time-consuming (particularly for electronic data). It can be very expensive to demonstrate the document is privileged or work-product is protected! 2. Once waived, the SUBJECT MATTER privilege is waived and cannot be resumed. Experts: 1. Types of Experts a. The Witness Expert. These are informally retained or consulting experts. There are people who are experts in the ordinary sense of the word who are involved in the case. Example: The doctor who treats an injured driver who then testifies about what he or she did to treat the patient. They are just witnesses and discovery proceeds normally. (NOTHING is discoverable from these people.(?)) b. The Non-testifying expert: These are retained or employed experts but not to go in trial. Parties may retain experts to study a case or advise without designating them as experts who will testify. No discovery unless the other side can make a showing of exceptional circumstances. ONLY the ID are discoverable. c. The Testifying Expert: These are trial experts. everything regarding these experts are discoverable. 1. Draft report vs. final report only final report is admitted. (See Admissibility below)

3. Discovery of Experts A. Historically i. Discovery was permitted only by way of interrogatory asking for a summary of the expert s opinion 1. Perceived as somewhat like work-product 2. If more desired, in theory, you had to ask the court s permission to depose the expert 3. In practice, given the importance of expert testimony, deposing experts was common

B. Modern Approach i. ii. Expert discovery is a matter of disclosure. Must submit an expert report containing a complete statement of all opinions to be expressed and the basis and reasons for them Must also disclose qualifications of witness including all publications, how much being paid, list of other cases where they testified during last 4 years (Rule 26(a)(2))

iii.

C. Current Rule Battle i. The Rules Committee has proposed a change in Rule 26 to make the conversations and draft reports between the expert and hiring lawyer work product and thus usually not available to the other side and not subject to questioning during the expert's deposition.

4. Admissibility of Expert Testimony A. Pre-Daubert, courts used the Frye test. i. The Ninth Circuit COA held that expert testimony was admissible if the scientific techniques used by the expert are "generally accepted" by the relevant scientific community. 1. Identify the field of expertise then determine whether the evidence is generally accepted in that field. 2. To do this, courts looked to see whether the techniques relied upon had appeared in peer-reviewed publications. ii. The Frye test was criticized since it kept out valid, but novel, theories that had not yet won widespread acceptance.

B. SCOTUS makes changes its interpretation of FRE 702 in Daubert i. FRE 702 says, "If scientific, technical, or other specialized knowledge will assist the trier of fact (jury) to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." 1. SCOTUS held that the rigid "general acceptance" requirement of Frye was at odds with the liberal thrust of the Federal Rules. 2. SCOTUS interpreted FRE702 broadly and made a new test that positioned judges as the "gatekeepers" of scientific testimony.

ii.

SCOTUS held in Daubert that admissible scientific evidence must be 1. Relevant a. Does the evidence "fit the facts of the case"? b. For example, you may invite an astronomer to tell the jury if it had been a full moon on the night of a crime. However, the astronomer would not be allowed to testify if the fact that the moon was full was not relevant to the issue at hand in the trial. 2. Reliable a. Are the expert's conclusions derived from the scientific method? b. The Court offered "general observations" of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exhaustive checklist: o Empirical testing: the theory or technique must be falsifiable, refutable, and testable. o Subjected to peer review and publication. o Known or potential error rate and the existence and maintenance of standards concerning its operation. o Whether the theory and technique is generally accepted by a relevant scientific community.

iii. iv.

Joiner made it clear that reviewing expert testimony is a trial court function. Opponents of the Daubert test claim that it will create an expert "free-forall" which will confuse juries with "pseudoscientific assertions" 1. Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are appropriate and sufficient ways to keep experts from having too much power in the courtroom. 2. Also, as an additional check, a judge can make a JMOL or summary judgment if he feels that no reasonable jury could find for the side presenting the expert testimony. 3. Courts can retain their own experts to help in determining what evidence is reliable.

v.

Daubert can be interpreted in two divergent ways.

1. Some courts hold that Daubert says that the lower courts should be more careful about what testimony they admit (form panels of experts to help in deciding). 2. Some courts hold that Daubert says that admission of expert testimony is encouraged and that it is up to defendants to attack the evidence. C. SCOTUS decided in Kuhmo Tire v. Carmichael that the Daubert test was not limited to scientific experts, but applied to all experts where technical knowledge is used. D. A recent revision in the FRE provides that an expert's opinion is admissible if  Testimony is based upon sufficient facts or data,  The testimony is the product of reliable principles and methods, and  The witness has applied the principles and methods reliably to the facts of the case 2. y y y y y 3. y Discovery Dispute o Requesting party: Motion to Compel discovery o Rule 26(c)(1) Responding party: Seeking Protective Order 1. annoyance, embarrassment, oppression y e.g. proprietary business information 2. undue burden 3. expense Rule 26(a)(2) Testifying expert: Disclose names, qualification, and opinions Non-testifying expert Serves as a pre-trial consultant during pre-trial discovery; and as a witness during trial. Protected: Material prepared by the consulting expert is protected by the W/P immunity. Unprotected: Expert identity should be disclosed in trial (including the basis of her opinion, acts or data considered in forming those opinions, etc.)

*** Disposition without Trial *** y Default and Dismissal o Rule 55: 2-stage process to obtain a default judgment against D, when D 1) fails to answer; or 2) fails to file a motion, in response to P s pleading, or delays in responding 1. Default entry from clerk: Court clerk enters D s default 2. Default judgment from the court: court enters default against D. o Decisions by the court to set aside the default under Rule 55(c) for good cause 1. D s conduct: willful or culpable conduct? 2. Will default prejudice the P? 3. Does D have a meritorious defense? o Decisions by the court to set aside the default judgment 1. Rule 60(b) Chapter 10 2. Courts generally are more willing to set aside default judgment than judgments reached after some consideration of the merits. o NOTE: 1. Courts generally disfavor default judgment, and encourages decisions on the merits. 2. So P/advocates should NOT be too overzealous in pursuing default judgment against his opponent. 3. Default judgment may be entered ONLY IF the essentially unresponsive D adversely halts the process. Pure improper service of process, or delay in response may NOT be enough for the ct to enter default judgment. 4. Obtaining a default does not mean that P is automatically entitled to prevail via a default judgment. Settlement ADR Summary Judgement

y y y

*** Jury Trial *** 1. Constitutional Right to a Jury a. Seventh Amendment says "the right of trial by jury shall be preserved." i. SCOTUS has interpreted this to mean that those cases that were in common law courts in 1791 get to go to jury. Also, no fact tried by a jury shall be otherwise reexamined , other than according to the rules of the common law. y This allows judge to set aside the rule of the jury, since this happened in common law.

ii.

b. Historical Origins i. Equity courts- dealt with issues of "justice" y Tried by a judge. y Remedy was injunctions and specific performances and reformation or rescission of a contract. Common law courts- dealt with issues of facts y Tried by a jury. y Remedy was monetary.

ii.

FRCP Rule 2 merged law and equity courts. y However, the distinction is still important to determine which cases are tried by jury since cases that would have been in common law courts in 1791 go to jury. 2. Modern Developments a. The historical test often proves to have dysfunctional results. There is a modern movement toward developing a consistent interpretation of the Seventh Amendment. i. ii. Three cases reflect this "dynamic concept" of the jury-trial right. Inquiry is directed not to the actual arrangement of legal and equitable issues in 1791, but "to the distinctive common law process of adjudication and lawmaking that was recognized as flexible and changing."

iii.

b. Beacon Theatres v. Fox i. Fox sought declaratory judgment against Beacon, who was "threatening" to file an antitrust suit (clearly equity remedies). Beacon counterclaimed asserting antitrust violation and treble damages (common law monetary remedies). Beacon demanded a jury trial. Ct of Appeals said only the original claim mattered, so the case should not go to a jury.

ii.

iii.

SCOTUS reversed and ordered that prior to trial of any equitable issues by the court, all factual issues raised by the legal aspects of the case must be tried to a jury. y Historically, the "basic nature of the case" had been ascertained to determine whether there was a right to trial. If there were both legal and equitable issues, but the case was determined to be equitable, the judge would employ the "clean up doctrine" and decide all aspects of the controversy. y SCOTUS said that the right to a jury was more important, and the "clean up doctrine" could only be applied where the legal issues were subordinate to the equitable ones. Holding: No test utilizing traditional equity procedure could interfere with the right to have a jury determine all the factual issues associated with a legal claim. y When a trial involves questions that require answers by both judge and jury, the judge's answers should never include answers that the jury should give. Jury questions should be decided first if the two collide. y Presumption toward jury trial. y Requires that the right to jury trial be measured in light of modern procedural developments, especially reforms that make available a remedy at law that previously did not exist.

iv.

c. Dairy Queen v. Wood i. Trademark-licensing agreement. P brought action for breach of contract, asking for injunctions and an accounting to determine the exact amount of money owed. Claims were essentially equitable, but SCOTUS said that since the remedy was monetary, there should be a jury. y Essentially, SCOTUS said that virtually no use of the clean-up doctrine was constitutional. y The choice of terms ("accounting" rather than "damages" or "debt") used in the pleading should not preclude a right to jury. Judge could assist the jury with complicated calculations under FRCP 53(b).

ii.

iii.

d. Teamsters v. Terry reaffirmed the importance of a jury trial when the legal remedy was monetary (in this case back pay from the union for breach of fair representation). i. Dissenters said that since the relationship was one of trustee and beneficiary (traditionally under equity), that the majority was parsing legal elements out of an equitable claim without any good procedural reason to do so. Terry Court involved a two-part test:
y

ii.

"Historical Test"- does the claimed right have a common law analogue? a. If YES- Jury Trial

b. If No- go to part two

y

Remedies Test- is the remedy being sought a legal remedy (damages) or an equitable remedy (injunction)? a. If LEGAL- Jury trial b. If EQUITABLE- Judge MONETARY damages are most likely legal, but there are some exceptions: y Restitutionary- such as in "actions for disgorgement of improper profits." y Incidental- "incidental to or intertwined with injunctive relief" Terry Court said second part of the test is most important i.

Markman v. Westview brought up some of the dissent's concerns. Case involved patent-infringement. Question was over the definition of the term "inventory" in the very complicated patent. When a review of history provided no clear answers as to whether a judge or a jury was to decide, SCOTUS ruled that the issue could be determined by the judge, since he was in a better position to understand the patent terms. Statutory Causes of Action- Congress and Jury Trials If Congress creates a new type of claim and expressly affords a jury trial (even if historically a pure equitable claim), then you'd get a jury. This is also usually true if Congress forgets to include it. But what If Congress expressly says "no jury" or creates administrative tribunal to decide the issue instead? If the claim involves public rights, courts would probably respect the alternative approach (worker's comp, for example, is a new regime for compensating certain types of claims where there is no jury). But if a clear legal claim involving private rights, courts would probably still require a jury due to the Seventh Amendment. Selecting Juries "Random" selection of people from the general population empanelled by court. Convicted felons are automatically excluded.

Qualified Jurors are assembled into venires, and are brought before the judge and attorneys for questioning. Frequently asked to fill out forms with basic information for the court and attorneys to review ahead of time. Attorneys may conduct research about the prospective jurors. y Check criminal reports, employment history, talk to neighbors and friends. y Jury experts can be employed to figure out the best and worst possible jurors for each party. Voir Dire Sometimes questioning is done by a judge, and sometimes the attorneys are permitted to do questioning. During the process, some jurors are excused for "cause" which means the court has determined that a particular juror can't serve in an unbiased, impartial manner. y No limit to number that can be excused for cause. Peremptory Challenges y Each side is allotted a certain limited number of these challenges that can be used to excuse prospective jurors for almost any reason. y An attorney tries to use peremptory challenges to ensure that the jury will be favorable to his client. Batson v. Kentucky addressed the issue of whether an attorney can strike a jury member solely because of that juror's race. y During the criminal trial of Batson, a black man, the prosecutor struck all four black men in the pool. y SCOTUS reversed Batson's conviction, holding that the Equal Protection Clause of the Fourteenth Amendment limits the ability of an attorney to use race as a basis for making peremptory challenges. Edmonson v. Leesville applied the Batson doctrine to civil litigation. JEB v. Alabama addressed whether this was also true of gender. y Involved a lawsuit against an alleged father for child support. y Alabama's lawyer struck all men. JEB's lawyer struck all women. There were more men than women, and a female jury resulted. y SCOTUS held that gender, like race, is an unconstitutional proxy for juror competence and impartiality. y Scalia dissent: Since all groups are, at one point or another, depending on the case, subject to peremptory challenge, it is hard to see how the Equal Protection Clause applies. The whole point is to discriminate.

Basically, the result of these rulings is that attorneys have to provide more "window dressing" reasons for excluding jurors that aren't related to race or gender. Controlling Juries Jury Instructions Parties submit proposed instructions to the court, court decides what to use. Counsel prepare their respective closing statements with theses instructions in mind. An error of law in jury instructions can lead to the reversal of a verdict if the error is deemed prejudicial. Some question about whether juries actually understand the instructions they get.  Language tends to be legal jargon, not readily comprehensible to a layperson. Mitchell v. Gonzalez  Court ruled that a jury instruction which used the term "proximate cause" was misleading when considering whether the adults who permitted the child to go out on the lake were responsible for the drowning of that child, who couldn't swim.  This is an example of issues that arise when jury instructions are not in lay terms. Jury Verdicts General Verdict- does not include any specific findings or explanations.  Just announces which party is entitled to judgment, and the amount of damages. Special Verdict- jury is asked to decide a specific factual contention/s.  Then, the judge applies the law to these facts.  Special verdicts limit the extent to which a jury can ignore or circumvent its duties.  However, they also divest the jury of its ability to bring the common sense of the community into the decision-making process. General Verdict with Interrogatories- jury is asked to answer specific factual questions as well as to apply the law to the facts.

**Abridged Juries**

1. The Seventh Amendment preserves the right to trial by jury. (One party must affirmatively ask for a jury!) 2. After FRCP 2 merged equity courts with common law courts, the question of whether you get a jury was muddled. Test for getting a jury (Beacon, Terry, Markman) o Would the legal nature of the claim, or a similar analogue, have been heard by an equity court or a common law court in England in 1791? y Equity courts (no jury) heard cases for injunctions, contract rescissions, and specific performance requests. y Common law courts (jury) heard issues of fact like libel, fraud, and contract breach. o Does the type of relief sought usually require a jury trial? (Dairy Queen) y Injunctions and declaratory judgments are usually not suitable for juries. y Monetary damages are usually jury issues unless they are restitutionary or they are incidental to or intertwined with a request for injunctive relief. (Terry) o Is one judicial actor better positioned to decide the issue in question? (i.e. patent term construction, Markman) 3. Selection of juries is accomplished through voir dire. Judges may dismiss potential jurors for cause if they cannot be unbiased. o Through voir dire questioning, attorneys attempt to figure out on whom to use their preemptory challenges. A juror can be excused on any basis except y Race (Batson, Edmonson) y Gender (JEB v. Alabama) o Challenging a strike y If a party wishes to challenge a strike, they must make a prima facie showing that the strike was due to race or gender discrimination. y The striking party must then articulate a race or gender-neutral reason for the strike.

**Full JMOL/New Trial**

1. Directed Verdict Motion (JMOL before verdict) (Rule 50(a)) A. The purpose of a directed verdict motion is to ask the trial judge to take the case away from the jury, on the ground that the evidence is insufficient to support a verdict for the P. i. Motion should be granted where there is "no legally sufficient evidentiary basis" for the jury to find for the party opposing the motion. 1. Judge should not decide whether D's evidence is stronger than P's, only whether a jury could rationally find for the P on the evidence before it. Judge must assume that the jury will construe the evidence in favor of the nonmoving party and not weight the credibility of witnesses. If certain testimony would support two inferences, one that supports recovery and one that does not, the judge should assume the jury will make the inferences in favor of the nonmoving party.

2.

3.

4.

However, judge should consider the "uncontradicted, unimpeached evidence" for the movant.

ii.

This does not disrupt the Seventh Amendment since it only guarantees a jury decision where there is a legitimate dispute in the evidence, where a meaningful dispute exists about whether the facts the P must establish are true. 1. If there is a such a conflict in the evidence, so that reasonable jurors could find for either party, the jury should resolve the conflict by "finding the facts." If the P has no evidence, or clearly insufficient evidence, to establish a required element of the claim, courts have held that the jury has no legitimate role to play, because its constitutional role as the finder of facts is not required.

2.

B. Burdens on the Plaintiff i. "Burden of Production" - P bears the burden to convince the judge that their evidence is strong enough on each element of their claim to support a rational verdict in their favor. 1. Judge must ask whether a jury, looking at the evidence, could rationally be convinced of it. (Is the decision in the debatable range?) If the judge concludes that the P has met the burden of production on each element of their claim, JMOL will be denied, case go to the jury.

2.

ii.

"Burden of Proof" - P bears the burden of proving their case by a preponderance of the evidence (stricter burden)

C. Reviewing JMOL before verdict on appeal - If a JMOL before verdict is overturned, the case must be remanded for a new trial. Thus, trial courts are more wary of granting them because of the possibility for waste. 2. Judgment Notwithstanding the Verdict (JMOL after verdict) (Rule 50(b)) A. The standard for granting the motion after verdict is the same as the motion made before the case goes to the jury--that the evidence is too weak to support a rational verdict for the P. ("No rational jury could find for the victor.") B. Reviewing JMOL after verdict on appeal--if the appellate court finds that the evidence was sufficient to support a finding for the P, can just overrule the trial judge's JMOL decision and enter the judgment based upon the jury's decision. C. Pre-requisites for Rule 50(b) motion i. ii. Motion must be made within 10 days of the jury's verdict for the P. Motion must be made under Rule 50(a) before the case goes to the jury. Reasons... 1. Wake up call to P's lawyer, can reopen case to get in the insufficient evidence a. Thus, a lawyer cannot use new reasoning for a Rule 50(b) motion not used in his 50(a) motion.

2.

Reconsidering the jury's verdict violates the Seventh Amendment unless the judge reserved the right to do so on a motion made before the case went to the jury.

D. Rules 50(a) and 50(b) do not apply in judge-tried cases. E. Weisgram v. Marley Co. i. Product liability suit where P used expert testimony. On appeal, the expert testimony was thrown out under Daubert. FRCP 50 permits an appellate court to direct the entry of judgment as a matter of law when it determines that evidence was erroneously admitted at trial, and that the remaining, properly admitted evidence is insufficient to constitute a submissible case. If a court of appeals determines that the district court erroneously denied a motion for judgment as a matter of law, the appellate court may o Order a new trial by request or on its own motion. o Remand the case for the trial court to decide whether a new trial or entry of judgment for the D is warranted. o Direct the entry of judgment as a matter of law for the D. Put all of your best evidence forward in trial since some might be thrown out on appeal.

y y

Motions for a New Trial (Rule 59(b)) Motion may be filed in lieu of or as an alternative to a postverdict motion for JMOL. However, it is different from a JMOL in two ways. Remedy is a new trial, not a judgment in favor of he moving party. Standards for granting a new trial are significantly more flexible than the "no reasonable juror" standard applicable to JMOLs. Rule 59(b) provides that a new trial can be granted After a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; OR After a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. Typical grounds include: Errors in the jury selection process Erroneous evidentiary rulings Erroneous jury instructions Verdict as being against the weight of the evidence 1. The judge may consider the credibility of the evidence; unlike JMOL motions where judge is asking whether the jury could find for the P if they believe the evidence, judges in new trial motions must ask whether the jury was seriously wrong in choosing to believe that evidence. Much more intrusive on the role of jury as fact finder.

2.

v. vi. vii.

Excessiveness or inadequacy of the verdict Misconduct by the judge, jury, attorneys, parties, or witnesses Newly discovered evidence

D. Tesser v. Board of Education i. Crazy teacher claimed she was discriminated against because she was Jewish. Jury unanimously found that she hadn't proven her case against any of the Ds. District Court refused to grant JNOV or a new trial. Appellate Ct affirmed. Holding:

ii. iii.

In order to win a motion for judgment n.o.v. (JMOL), the party must show that there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture or that there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it. y Judge must view the evidence in the light most favorable to the verdict winner. In order to win a motion for a new trial, a party must convince the court that the jury has reached a "seriously erroneous result" or that the verdict is a miscarriage of justice. y Judge can weight the evidence himself, not view it in the light most favorable to the verdict winner.