Get documents about "Civ Pro A - Prof. Long - Yeazell - WSU
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I. Intro
a. McDougal v. Shanz
1. Conflict between Judicial Interpretation and Statutes
1. Legislature has a lot of power, in MI Judicial Power is Const. Based
b. FRCP
1. SCOTUS makes
1. Congress gives SCOTUS power.
II. The Process of Litigation
a. Incentives to Litigate
1. Remedies
1. Remedy of Law - Heard in the King's Court (Ejectment)
a. Damages - Action at Law - Backward Looking, seeking to repair harm
i. Damages for easily calculable damage is easy, money stolen, lost
job, etc.
ii. Irreparable harms (losing an arm) much more difficult, but an
infinite amount of pain isn't fair either. Money does help however.
2. Remedy of Chancery (Equity) - Suits in Equity
a. In the long past, lawyers had to pick which court to file in. Law or
Chancery. Some cases just are because they are - Ks
b. Injunctions - Forward Looking, seeking to prevent more harm
i. FRCP did merge two courts.
1. DELAWARE EXCEPTION. Still has court of Chancery
ii. Specific Remedies
1. Unmerge companies, return lost property, prevent working
for specific employers,
iii. Often used for large societal changes. Brown v. Board of Ed
3. Contempt of Court
a. Criminal Contempt
i. Refusing to obey an injunction can lead to criminal proceedings.
The AUTHORITY OF THE COURT is the reason for this. If someone
defies the court, taxpayers have an interest.
b. Civil Contempt
i. The defendant holds the key to his or her own jail cell. Can be
removed from jail as soon as he/she complies with the injunction.
2. Paying for the Action
1. Pro bono
a. Lawyer is paying with his/her time.
b. Giving access to those without legal access
2. English Rule
a. Loser pays the fees.
b. Deep pockets of the defendant are the ones that really matter
i. Encourages low-damage but strong cases. Discourages reform suits.
3. American Rule
a. Everyone pays their own
b. Discourages low damage suits. Plaintiff is never "whole."
4. Contingency Fee
a. Doesn't this stir up litigation?
i. Not if people were wronged. Then stirring up is good
ii. Old school was "too poor to afford litigation. Too poor to count"
b. Implicit message of allowing different forms of payment:
i. Courts should be disrupting the social structure
ii. Undermine people at the time when the law supports it
c. Defendant's perspective:
i. Having liability insurance (insurance pays for lawyer)
Splitting Costs with other insurers.
Less risk, so less risk adverse when covered.
Takes away some of the courts deterent power.
Insurance Company is IN CONTROL for settlements/trial
strategic decisions
Public Subsidy
Some types of litigation require all participants have access to attorneys
(Family Law - parental termination, Divorce)
Evans v. Jeff D
1. Ethical Conflict? Not really -- get paid for worst result for
client
b. Convince a non-profit to pay (ACLU, NAACP)
i. Claim will need to be major
ii. What are the objectives? Money (for client), injunction (for
organization)?
iii. Non-profit can "fire" client.
c. Fee Shifting/Spreading
i. Public Policy Statutes: Civil rights claim, Govt. Pays for Pl. attorney's
if Pl. wins
English rule? No, not in reverse.
Govt. is always paying some of the cost (Judges,
States subsidize law schools
Govt. acts as a private party and sues (plaintiff or defendant)
What does the public get?
Level playing field
No needs test. Rich = poor
Impartial judiciary
If govt. didn't pay, chaos?
Iron fist in the velvet glove
Dist. Court will nullify settlements if:
Ends the litigation when no realistic defense is available
Court thinks D is being vindictive.
b. Pleading
1. Starting the Action - the Complaint
1. Rules
a. FRCP 8(a) - General Rules of Pleading
i. Short and plain statement of the claim.
b. FRCP 9(b) - Fraud Particularity
i. Pleader must state with particularity the circumstances constituting
fraud or mistake.
2. Policy
a. Writ Pleading - Old System
i. Claim had to fit into the system
ii. If it didn't fit, it was automatically dismissed
iii. Huge barriers to entry.
b. Field Codes - Newer System (Dudley Fields)
i. Had to know a lot already (Discovery not very important)
ii. Advantaged those with the power (corporations, etc.)
iii. What really bothers the pleader?
c. Notice Pleading - Current System
i. Putting opponent on notice, FRCP 8
1. Conley v. Gibson - Racism on the railroad. All claim has to do is
be reasonable and allege a wrong.
ii. Discovery very important
1. Pleadings determine what is available in discovery.
iii. Inconsistency in pleading is allowed
1. But must fall into one of your pleadings (with some
exceptions) at trial
2. Pleading Ethically
1. Conley v. Gibson - "Reasonable and allege a wrong"
a. Conceivable standard. Facts only have to conceivably lead to possibility.
2. Twombley - Moved standard.
a. Plausible Standard Facts not only have to be conceivable, but plausibly
true. Two schools of thought.
i.This is a big deal. Drastically changes pleading
ii.This only applies to anti-trust law.
iii.Hopes to eliminate in terrorem settlements.
3. Iqbal - Affirmed Twombley standard
a. Plausible Standard applies in all cases
4. Notice Pleading Restoration Act
a. "Except as otherwise provided, a Federal Court shall not dismiss a claim
via FRCP 12(b)6 except as provided by the FRCP and Conley v. Gibson."
b. Insurance Company Senators:
i.Bad bill.
ii.Allows damage to corps through frivolous lawsuits.
iii.We did well under Comley for a long time.
c. Judges As Umpires Senators
i.Could go both ways
ii.The change to Twombley/Iqbal were activist judges. Giving judges more
power.
iii.Judges must deal with the social policy ramifications and dole out.
iv.Conley opened the floodgate. We're back to where we should be now.
d. Minority Population
i.More access to justice for all.
ii.Minorities tend to end up on the wrong side of justice. Opening the
door wider allows more justice for all.
5. Rule 11 - objective standard
a. Sanctions. Terrible for lawyer's reputation.
b. Pleadings must have evidentiary support.
c. Sanctions can occur 21 days after service of a Rule 11 Motion, unless the
receiving party can show their evidentiary support.
d. Similar to English Rule - Pay for opponent's attorney's fees.
e. Effect on inconsistent claims: they need some evidence support. Does not
mean they must be true during Pleading stage.
f. Representation by attorneys must:
i.Rule 11(b)1 - Factually supported, legally nonfrivolous.
ii.11(b)2 - Factually contention
Barbie Case
iii.11(b)3 - Evidentiary support
iv.11(b)4 - Factual contentions are reasonable based on evidence or lack
of information.
Idiot lawyer suing and ignoring jurisdiction evidence.
g. Reasons for sanctions
i.Going against anything above. Ignoring court rules. Ignoring facts.
Harassment. Silly motions. Patterned delaying.
ii.Sanctions can ONLY be for written papers. Barbie Doll case. Cannot
sanction physical actions.
6. Inherent Authority of the Court
a. Court can sanction in this way against conduct
i.Conduct: Ignoring facts. Interruptions during depos.
ii.Damages against the enterprise of the court.
Power: Federal - Comes from Art. 3 of Constitution
Power: States - Depends on State.
iii.These kinds of sanctions are typically paid to the court as they are
"offenses against the court"
3. Notifying the Defendant - Due Process and Process Procedure
1. Serving Notice.
a. Common Law:
i.Mullane Test - To satisfy the 14th amendment, what is reasonable for
the party to do in order to satisfy the notice requirement.
ii.Must be more than a mere gesture
iii.Trustee Case - Policy considerations - Judges know that bankers drafted
the legislation and that it advantages them. Trying to advantage
those disadvantaged.
iv. SC says you must act as a reasonable actor who wanted to tell the
interested parties. Why didn’t the bank notify in accordance with
FRCP. This was under State court under State law. Didn't do
anything beyond what they absolutely had to do.
v.This is about the due process clause.
4. Responding to the Complaint. Rule 4
1. Complaint
a. Issued by Plaintiff
b. Need not be paired with summons, but carries no weight without
summons.
2. Summons
a. Issued by Clerk
b. Carries weight of the court.
i.If there is no response to the complaint, default judgment entered.
ii.Commonly debtor issues: not collecting a debt once default judgment is
in effect. Have legal remedy and collecting on the legal judgment.
Not the debt.
3. Serving the Summons - Plaintiff's Responsibility.
a. Summons must be factually correct. Defendants, name court, state
complaint, etc.
i.If incorrect, defendant can have it dismissed. Wrong name, for example.
b. Each Defendant must be served. Only after complaint is filed with the
court will the clerk issue the summons.
c. Act of Service:
i.Served by someone 18 years of age, with a copy of the complaint and
summons.
ii.At the Plaintiff's request can be done by a Marshall of the Court.
Expensive.
1. Advantages are the public nature of a Marshall coming in.
2. Disadvantage: Costs a lot of money.
d. Who to serve to:
i.Suitable age (not necessarily 18, but can't be 6, either). Common
litigation
ii.Agent of the Defendant
Most Corporations are required to make the State's Secretary of
State an Agent to do business there. Makes it easy to serve.
Very common
Follow state service rules: this will get you to comply with FRCP.
Waiving Service
Aren't waiving anything but service of process. Not waiving
defenses, jurisdiction, anything, just saving money/time. If you
waived anything, no one would do it.
Carrot: Gives more time to reply to the initial complaint if you
waive service. 60 days vs. 20 days
1. If you don't waive and do not receive service, the clock doesn't
start ticking for response.
iii.Stick: If you have a bad reason for not waiving, you will pay for the
service.
f. Statute of Limitations Issues
i.Stopping the clock varies by jurisdiction
1. On filing of complaint
2. On service.
4. Defendant's Response to Pleadings
a. Same obligations to truth under Rule 11
b. A non-answer in writ ends in default judgment
c. Obliged to deny specifically in the writ each allegation separately. Can also
say "I don’t know."
i.Improper Denial has consequences. Can mean you can't deny it at trial.
Zielinski v. Philadelphia Piers, Inc. - Same Insurance Company is still
paying. Part of the reason for the decision. No prejudice vs.
defendant.
ii.Constructive Facts in the Zielinski case. It's a lie, but we're treating it as
true.
iii.Affirmative defenses must be in the responsive pleading. FRCP left
affirmative defenses open ended to allow for room in litigation.
Room for judicial discretion.
d. Rule 12(b) -
i.2-5 Personal Jurisdiction, Improper Venue, Insufficient Process,
Insufficient Service of Process can be waived by participation. If you
don't state the claim in the initial pleading, it is waived.
ii.6 Failure to State a Claim -
Saying that there is no legal claim in the complaint. Makes no
argument about the facts at issue.
Can also argue that the court cannot give relief to the claim for
whatever reason. Even if legally has a claim.
1 - Subject Matter can never be waived. Would basically allow
amendments to jurisdiction if the issue could be waived.
Can do it on appeal after the court has ruled
Sometimes its better to win on the merits than on subject
matter jurisdiction.
Everyone, including the court, investigates subject matter
jurisdiction.
Waiver vs. Forfeiture
Waiver is a knowing and voluntary surrender of a right.
Forfeiture is an unintended/unwanted consequence. Done without
knowing that the right is being forfeited.
5. Amending the Pleadings - Rule 15
1. 21 days to amend by right.
2. After 21 days, must ask other party.
3. After 21 days, court can also amend.
a. Judge has right to allow amendment to the pleadings and court will
"freely give for justice."
b. Requires good faith in initial pleadings.
4. Pros/Cons for allowing/denying motion.
a. Not allowing amendment could deprive Plaintiff of Recovery
i.Aquaslide Case - Plaintiff outside the statute of limitations because it
appeared suit was good vs. Defendant. Would've had claim vs.
others, but now after statute of limitations
ii.Moore v. Baker Case - Plaintiff's amendment is just there because of a
mistake. Not based on new information/evidence/material facts.
Would advantage Plaintiff unfairly.
iii.Bonerb Case - Still early in the case, no prejudice vs. defendant.
b. Allowing amendment could punish defendant by limiting notice.
i.Aquaslide Case - not even the right defendant. Would force the
defendant to make unreasonable
ii.Moore v. Baker Case - Defendant would get screwed , isn't reasonable
to expect disclosure of every option available.
iii.Bonerb Case - Not allowing motion to amend would give defendant a
"windfall."
c. In general, no one cares about amendment around the statute of
limitations.
c. Discovery
1. Discovering the Facts
1. Mandatory Discovery
a. Anything that might lead to discoverable evidence to either parties claim
b. Don't have to produce impeaching material
c. Include documents, witnesses, evidence, experts
2. Interrogatories
a. 25 Questions. Answers can be nonresponsive, but must be true.
b. Typically used to cover basic assumptions. "Is X your employee?"
c. Should expect the answer that you get. If you get an answer you don't
expect, you have a problem.
3. Request for Production
a. Can be extremely expensive.
b. Requests for documents
c. Anything relevant but not privileged must be turned over.
i. Comply Broadly
Here is a warehouse fill of documents/paper
ii. Comply Narrowly
If you didn't ask for it specifically, you aren't getting it.
iii. Becomes a race between the lawyers. Billions of documents must
be parsed. Narrow documentation gives you nothing to work with.
iv. Relying on professional integrity of lawyer's here.
If info is deliberately withheld, heavy sanctions will come
Discovery sanctions can lead up to unfavorable inference.
d. Subpeona legis for third parties.
i. Similar to discovery, they're required to turn over items, but
requires the court to say so first.
4. Depositions
a. Very polite rules for very unpolite experience. 10 Depos. 7 hrs each
maximum.
b. Allowed to ask, and required to answer, anything that could lead to
discovery.
c. Lawyers must object during deposition or usually can't object during trial.
d. Direct interaction is stronger. Ability to get around a witness weaseling
out of a question.
5. Exemptions from Discovery
a. Privilege
i. Attorney/Client
Covers what lawyers/clients talk about
Does not apply to other legal work
Really only talks about Client's side, but Attorney must
protect Client's thoughts.
Client can forfeit/waive, Attorney cannot.
Difficult sometimes - can be an advantage to give up privilege.
Can be a disadvantage.
ii. Doctor/Patient
Therapist most common.
Basic principle is a duty to protect society (?)
iii. Spousal
Pillow Talk Exemption
Varies state-to-state
Divorce complicates. Again, State to State.
Communication during marital period is usually protected.
iv. Self-Incrimination
Only exists in Criminal Cases
No safety from compulsion in Civil Cases
v. Waived/Forfeited
Waived - Intentionally released privilege
Forfeited - Unintentionally released.
vi. Pros/Cons of privilege
Prevents answering of questions in depositions
All or nothing. If privilege is waived, it is completely gone.
b. Work product rule - becomes Rule 26(b)3
i. Definition: Written documents, related to litigation.
Anytime you begin work relative to the matter. Anticipation
of the litigation.
ii. Exception: When not privileged, and essential to the adversaries
case preparation.
iii. Created out of policy considerations
Allowing work product to be discovered would keep lawyers
from writing things down
Generally a no, unless some of the work product info can only
be gathered from opposing attorney. Hickman v. Taylor
Being lazy will not let work product be waived.
The court says that the morale of the bar plays a role. It is
about protecting clients, as otherwise lawyers wouldn't
write down their research. They would give their adversary a
leg up. Legal system that depended on lawyer's spontaneous
wit and memory would be a failure.
c. Expert Witness Exemption
i. Courts want claimants to hire their own expert witnesses.
ii. Does not mean that courts will refuse to let you get information
related to trial from opponent's expert witnesses
Thompson v. The Haskall Co. - She was depressed, went to
Psych. To strengthen claim. Done in anticipation of litigation.
Not for mental health
Chiquita v. M/V Reefer Co. - M/V is just using Chiquita's
work/money to help itself. Wasted their own time. Were on
notice that litigation was coming.
Stalnaker v. Kmart Corp - Sexual harassment suit. Court
invokes Rape Shield in decision. Only information relating to
the defendant (Graves) is relevant.
iii. Relevance to case is critical. Difficulty in seeing mental state vs.
condition of bananas at the time.
iv. Disclosure of facts are similarly minor. Opinions more contextual.
6. Physical/Mental Exams
a. Court can compel a party to take a physical/mental exam
b. When determining, court asks "Which party put physical/mental health at
issue?
i. Courts are skeptical of ordering exams when it would force the
party that did not bring up the issue to take the exam.
c. Then: can each party find that information?
7. Discovery Noncompliance
a. Court Compels Disclosure
b. Abuse is very rare - the power of the bar and ethical obligations prevent.
c. Court has been more assertive in oversight of discovery last 20 yrs.
2. Electronic Discovery
1. Each company must have a document retention/destruction policy.
a. If no policy exists, it is assumed that documents continue to exist… so if
documents relation to litigation are destroyed, it looks fishy.
2. Duty to Preserve
a. Elements
i. Reasonable defendant anticipates litigation creates duty to
preserve.
ii. Notice
Actual Notice - Serving of papers.
Constructive Notice - If they should have known litigation was
coming.
b. Which documents need to be preserved?
i. Everything pertaining to litigation
ii. When a duty to preserve comes into effect, every document
existing at that moment must be preserved.
3. Remedy's
a. Costs' to fix the oversight of data protection (additional depositions)
i. Ideally would find all information that would've been preserved.
ii. Legitimate concern that those deleting emails would also lie in a
Deposition. Very hard to lie in depositions, though.
b. Adverse Inference - essentially ends trial
i. Duty to Preserve
Duty to Preserve must exist when the documents were
destroyed.
ii. Culpable State of Mind
The party must at least negligently destroy documents
Knowing/purposeful destruction could lead to automatic
fulfillment of Relevant Material.
iii. Relevant Material
The discovering party must prove that the discovery would've
found Relevant Material.
4. Metadata
a. Sometimes visible, sometimes hidden information
b. Can tell a lot of information
i. Who accessed?
ii. Last accessed/modified?
iii. Where accessed?
5. Non-waiver of privileged material
a. E-Discovery creates ridiculous number of documents
b. Part of expense is reviewing for privileged information to prevent
forfeiture.
c. This is all determined in a pretrial conference
d. Nonwaiver agreement
i. Releasing privileged material will not forfeit privilege in this
jurisdiction
ii. Clawback Provision
Privileged Information can/will be returned.
d. Resolution Without Trial
1. Ending the Fight in Court - Summary Judgment/Settlement
1. Summary Judgment
a. Before trial begins
b. Either party may make a motion for summary judgment if there is no
issue of genuine material fact.
i. Objective test
ii. Could a reasonable jury come out either way.
iii. Party opposing motion must prove there is an issue of genuine
material fact.
Facts claimed by each party need to be in conflict. Bias case.
c. Judicial management
i. Summary Judgment is a powerful tool for judges with full dockets.
ii. Can lead to claims with merit being dismissed
These plaintiffs still have a claim against the lawyer for legal
malpractice.
d. Unfair notice
i. Too late to amend complaint (during trial)
ii. Can't build a defense at this point (even if there isn't much of one)
2. Settlement - Trial Sits Ominously.
a. Voluntarily Dismissal: FRCP 41(a)
i. Plaintiff voluntarily dismissing own action
Settlement
Plaintiff wants another shot after trial goes wrong way early.
ii. Can also be voluntarily dismissed with approval of judge/other party
b. Consent Decree
i. Court enters settlement as a judgement
ii. Binding as an order of the court
iii. Court maintains jurisdiction.
iv. Settlement in one court can be cross-jurisdictional. Full Faith and
Credit Act.
c. Standard Contract
i. Can be a pain.
If there is a breach, new suit.
ii. More private
Negotiating tool
Can be kept off the record.
d. Mediation.
i. Not binding
ii. Allows for both parties to compromise more easily with a 3rd party
involved.
iii. Cold Calculation for some parties (companies)
e. Aggressive Judges
i. Can practically coerce. Lockhart. Striking of complaint.
2. Resolving the Fight before Court - Arbitration
1. Why Arbitration?
a. Choice of Neutral
i. Neutrals chosen by the parties. Or AAA. Could be from a list or panel
"Least worst" neutrals
ii. Process expertise; subject matter expertise
b. Cheaper - Maybe
i. Can still end up in court.
ii. Depends a lot upon how extensive discovery is.
iii. Must also pay arbiters. They're expensive!
iv. Limited appeal (if you want there to be)
v. Billable hours on negotiating rules.
c. Control over the Rules
i. You are at the mercy of the arbiters.
ii. Rules you agree upon may bite you later.
d. Privacy
e. Friendlier process. Allows both parties to escape with something they
want.
i. Agreed to this process.
ii. Did not want to be bound by the law.
iii. Half a sandwich.
2. Why not arbitration?
a. How neutral can the process be?
b. Rules are less formal: due process concerns.
c. Satellite litigation (litigating outside the arbitration, attacking the
agreement).
d. Private - if you want it to be public.
e. Enforcement
i. Contractual agreement. Not court order
ii. Means that enforcement would require suit, if there is a breach.
3. Judicial Review
a. Statutory Grounds under FAA § 10
i. Corruption, Fraud, undue means
ii. Evident Partiality on part of the arbiters
iii. Arbitral misconduct
iv. Arbitrators exceeded powers.
b. Non-statutory grounds
i. Manifest disregard for the law
ii. Public Policy
4. Remember social justice themes.
a. Countrywide Cases in Conflict.
i. Judicial reasoning says state rules in Texas v. Calif.
ii. Courts in each state are looking for ways to fit what they want.
b. Federal courts favor arbitration. State courts don't.
c. Substantive expertise in topic plays a role.
e. The Trier and the Trial
1. Going to Trial - Right to a Jury
1. Jury's
a. Have biases
b. Judges are gatekeeper to the Jury
c. Cultural perceptions matter
2. 7th Amendment Right Preservation.
a. Right to a Jury Trial.
i. Congress has a right to expand this right.
ii. Some against it: Insurance Companies, US Chamber of Commerce
b/c Juries are more unfair to companies than judges.
b. No right to a bench trial.
c. Must demand Jury Trial.
i. 14 days after last set of pleadings served.
More expensive. Only allowed on issues for a trier of fact.
Also eliminates an element of unfair surprise. Can't spring this
during trial.
ii. Otherwise right is waived/forfeited.
iii. Rule in MI:
Jury trial right "Shall remain" meaning in actions at law
Civil Cases 10 agree/12 jurors.
3. Jury Trial v. Bench Trial
a. Judges/Juries agree just over 70% of the time. About the same as judge vs.
judge agreeing.
b. Plaintiff's win just under 50% of the time at both. Statistically similar.
i. EXCEPTIONS - Med Mal and Product Liability
ii. In these, Judge typically favors the plaintiffs by a 40% to 30%
margin.
c. Juror selection
i. Random selection (Drivers License, Voter Registration)
Over time, exceptions were built up.
Current trend is to remove all exceptions. NY Chief Justice on
NY CoA served.
Jurors discovered to have biases (dismissed for cause) will be
gone. Peremptories, for no reason, a lawyer can dismiss a
juror based on intuition. State courts give many more
peremptory strikes. U.S. Dist Courts - 3. In States, often more
than 10. Limits for the reasons: strictly constitutional. Cannot
strike someone for race, sex, national origin.
2. Ending the Trial - Jury Instructions and Post-Verdict motions
1. Jury Instructions
a. Submitted prior to end of trial.
i. Some judges want them before trial begins.
ii. It is becoming more popular to give instructions at certain points on
trial to allow jury to make better, more informed decision.
b. Wording is typically "pre-patterned" from appellate decisions.
i. If you don't like wording, you have to object at the trial. Otherwise
right to appeal is waived/forfeited.
ii. Appellate court can look at major mistakes in jury instructions.
Certain obviousness. Substantial mistake. "Forgetting the
preponderance of the evidence."
2. Judgment as a matter of law - District court can order this.
a. Evidence in the trial is not legally sufficient.
b. Must be made before the verdict comes in. Can only be filed after the
party is finished presenting evidence.
c. Court will hold motion til after the jury verdict. Likely that the jury comes
back with the same verdict. If it doesn't, then it will look at the motion
again.
d. Does not violate 7th amendment - this is a matter of law, there are no
material fact issues.
3. Judgment for a new trial - District court can order this.
a. Flawed Procedure
b. Flawed Verdicts
i. Genuine issue of material fact exists after trial.
ii. Jury's verdict goes strongly against the weight of the evidence.
4. Policy concerns:
a. Moving between justice & efficiency
b. Unlimited new trials for a judgment for a new trial? Technically possible.
c. Not allowing a jury to rule on issues at law.
f. Appeal - The Trial of the Trial.
1. Only Final Judgment can be appealed
1. Damages awarded? Final judgment by the court? Etc. One appeal.
2. Only the loser can appeal. In cases with multiple losers (lower damages
awarded, injunctive relief when warranted or not, etc.) both can appeal.
3. No appeals from settlement.
4. No interlocutory appeals
Exception: If these interlocutory appeals are injunctive, some other minor
exceptions. Typically things from Courts of Equity.
2. Appeals of Law
1. "de novo" or Plenary standard
2. No deference between Court of Appeal and the District Court.
3. When appealing, if an error did not prejudice or substantially affect rights, it is
deemed harmless and the ruling is not overturned.
3. Appeals of Fact
1. Clearly erroneous standard.
2. Show deference to the District Court on issues of factfinding.
g. Joinder
1. Joinder of Claims - FRCP 18
1. Can join as many claims as it wants against the other party.
a. Contingent claims - party can join a second claim even if it is contingent
on the first claim.
2. Counterclaim
a. Compulsory -
i. Same series of transactions that does not require a party the court
cannot obtain personal jurisdiction over.
ii. Exception - Claim was subject to another action, no PJ on this claim
(?)
iii. This extends supplemental jurisdiction in Federal courts.
b. Permissive -
i. Any claim that is not compulsory may be included in a counterclaim,
as a permissive counterclaim.
ii. Does not expand jurisdiction.
3. Cross Claim
a. Defendant on Defendant Action
2. Complicating the Case - Adding Parties -
1. Permissive -FRCP 20
a. Plaintiff - seek similar right or relief out of the same transaction AND a
question of law or fact is common for all plaintiffs.
b. Policy - looking for efficiency in the action here.
2. Compulsory - FRCP 19
a. Indispensable parties. Relief cannot be complete, existing party may be
liable for too much, or inconsistent obligations.
b. If joinder isn't feasible/possible, court can dismiss, depends upon whether
there is sufficient prejudice and other factors (adequacy of potential
judgment, remedy, prejudice).
c. Policy - Trying to ensure justice - make sure that each party is heard and
has the ability to put on a case, and that there is no internal bias against
others.
3. Complicating the Case - Intervention and Interpleader
1. Intervention - FRCP 24
a. As a right: 3 conditions
i.Interest in the property/transaction
ii.Disposition without you would impede you as a practical matter
iii.Parties themselves won't protect your interest
b. Permissive
i.Common claim or defense? Not automatic. Court will look at it.
ii.Court will look at prejudices, but claimant is master of his/her
complaint. The court will look carefully at this.
c. Policy - Intervention is essentially about prejudices - want to give each
interest in the case a voice, while also keeping litigation from getting
unnecessarily complicated and expensive. Difficult balancing act. Nuclear
case in Arizona.
d. More Policy - If you don't join parties that have an interest in the
litigation, don't complain when they come back and intervene later.
2. Interpleader
a. Claims against the plaintiff could result in multiple liability, then the
defendants must be joined.
b. Policy: Prevent a plaintiff from getting worked over, doing the wrong
thing, and being found liable.
4. Severance - FRCP 42
1. Judge given the right to sever trials for: convenience, avoidance of prejudice,
efficiency.
