Civ Pro Outline
I. OVERVIEW OF THE TRIAL
A. Overview
i. 5% of federal cases actually make it to trial
ii.
B. Stages of A Trial
i. Opening Arguments
1. Highlight what you want the judge or jury get out of the case, what
you wan them to pay attention to.
2. Plaintiff presents first – what the case is about, what arguments she
will make and how she intends to prove them
3. Defendant can then present their opening argument or reserve their
opening until the plaintiff has presented their case
ii. Presentation of Evidence
1. Plaintiff presents their case first
a. Call witnesses and ask them questions under direct
examination
b. Defendant has opportunity to cross-examine
c. Plaintiff then has the opportunity to redirect examine
d. Defendant then has opportunity to re-cross examine
e. This continues until witness is excused
2. Formal rules of evidence govern permissible questioning
3. Lawyers have a duty to object
a. If a lawyer makes no objection to otherwise inadmissible
evidence it usually will be admitted
b. Hearsay is inadmissible (exceptions apply) but if the lawyer
doesn’t object then the statement will be admitted
4. When the has presented all their evidence and witnesses they
rest
a. If the believes that the has failed to make their prima
facie case they will move for JMOL (Rule 50)
5. Judge will usually deny or reserve judgment and the will proceed
with their case.
6. At the close of case the may present evidence in response to
’s case and then may respond to that until both parties rest.
iii. Motions Testing the Sufficiency of Evidence
1. After both parties rest either or both may move for JMOL
a. If the motions are denied, the case goes to the jury or in a
bench trial to the judge.
iv. Closing arguments and Jury instructions
1. If the case goes to the jury the judge issues instructions to guide
jury deliberations
a. Each lawyer offers proposed instructions, which the trial
judge considers in crafting the final instructions
b. Lawyers often craft before trial to focus their case and
determine what they need to prove.
2. Lawyers closing statements may precede the jury instructions
a. The instruction conference precedes the closing arguments
b. In closing arguments the lawyers review evidence actually
introduced and explain hot it supports their party’s theory
of the case
c. Effective closing arguments explain in detail why that law
supports the party’s position
d. Often parallel the opening arguments so that they offer the
fact finder a logically conclusion to a coherently and
logically presented case
v. Jury Deliberations and verdicts
1. Jury retires to deliberate after the closing arguments
2. The Judge may require one of three type so verdicts
a. General
i. Most common asks only that tejury decide who
wins and the amount of damages
b. General with interrogatories
i. Asks for the same thing as general plus answers to
several specific questions
ii. if a general verdict conflicts with the answers to
questions the specific answers control
c. Special
i. Asks the jury to answer specific factual question
only
ii. The judge then applies the law to their responses ad
decides who wins
3. In a case tried just to the judge the case concludes with closing
arguments and the judge later delivers the ruling
vi. Post-Verdict Motions
1. After the jury returns a verdict the loosing party can move for
JNOV – renewed motion for JMOL.
a. Same standard as the JMOL
2. A new trial Motion in contrast addresses a broader range of defects
of a trial
a. Defects such as admission of improper evidence, jury
misconduct, improper jury instructions or other grounds
3. Bench Trial the losing party usually responds to an unfavorable
ruling by appealing, rather than seeking further relief.
II. DECISION MAKERS AND DECISION MODELS
A. The Judge
Formalist Judges : apply pre-existing rules to the facts of a raise
Realist Judges: legal theories do not decide cases people do
i. Judicial Selection: Appointment and Election
a. Selection of Federal Judges
1. U.S. Supreme Court nominations come from the president
and are a life time appointment - senate confirms them.
2. Federal Court of Appeals – selected through a joint effort
of the executive and legislative, the president has more
power with regard to these appointments because the
circuits include multiple states
3. Federal District Courts – nomination originates with the
senior senator of the president’s political party from the
nominee’s state
4. Presidential priorities can dramatically shape the profile of
federal judicial nominees.
b. Federal Magistrate and Special Masters
1. Magistrates are appointed by the district court that they
serve, and these courts determine their duties.
2. Some argue that delegating federal judicial authority to
magistrates violate Article III because they are appointed
by the judges they serve.
3. A judgment entered by the magistrate judge is treated a a
final judgment of the district court.
4. Under Rule 53 district court judges hae=ve the power to
appoint special masters in exceptional, complex cases.
i. The special masters is to assist the judge or jury as
directed but the master’s findings are accepted
unless clearly erroneous in non-jury cases and may
be admissible as evidence in jury cases
ii. Judges could not likely manage their caseloads
without delegating some tasks to magistrates and
special masters.
iii. New Rule 53 explicitly prmits special masters to
address pretrial and post-trial matters that cannot be
addressed effectively and timely by an available
district udge or magistrate judge of the district (Rule
53(a)(1)(C)
c. Selection of State Judges
1. Judges can be appointed or elected depending on the state
2. Election wasn’t necessarily designed to improve justice but
was simply another manifestation of the populism
movement
3. Elected v. Appointed the pros and cons
ii. Judicial Qualifications
a. Formalist Judges – argue that legal decision making is a matter of
applying preexisting rules or theories to the facts of a given case.
b. Realist Judges – argue that substantive legal theories do not decide
concrete cases.
c. The Formalists and Realists have differing view on judicial
selection
1. Formalists place the emphasis on substantive law and
normative theory – they start with questions about legal
views and the correctness of these views
2. Realists focus on character and background querying
whether the candidate’s background and character would
produce sound intuitions for resolving legal controversies.
3. Some argue that a judge should decide a case from the
bottom up – being sensitive to a diverse range of interests
(such as race).
d. There is an argument for making racial diversity a relevant factor
in making judicial appointments
1. Benefit from the experience of those whose backgrounds
reflect the breadth of the American experience
2. Pluralism – doesn’t mean judge has to be same race as
those before him just that we make sure that the judges
reflect a broad range of perspectives. – Often promotes
justice and public opinion
3. Judicial homogeneity, by contracts is more often than not a
deterrent to, rather than a promoter of, equal justice for all.
4. Gender also a consideration – women, people of color and
other characteristics should be represented.
e. Fuller – Moralisim v. Hart- Positivism
f. Shoot for objective but subjective keeps bringing us back.
iii. Disqualification of Judges in Individual Cases
a. Two statutes govern the disqualification of judge in federal cases
1. §144 permits a party to file a timely and sufficient affidavit
alleging that the judges is either biased against that party or
in favor of an opponent
a. Motion can be made only once per trial and the
judge retains discretion to deny the motion and
remain on the case
2. §455 mandates that a judge shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned and further may not continue to preside over a
case in any of a series of specific circumstances obtain.
3.
b. Many state codes allow each party one strike, which may be
exercised to excuse a judge without offering a reason
c. United States v. Hatahely
1. What should an appellate court do with a judge that seems
emotionally involved?
i. Do we want judges to be emotionally stirred y
injustice?
2. District court judge was deemed too partial to hear an
action filed by Native Americans for losses of horses and
burros that were seized and destroyed by the US because
there was evidence of the judges bias because of comments
he made.
d. Haines v. Liggett Group, Inc. – another case where judge removed
because judge made statements that compromised the appearance
of impartiality
e. Pennsylvania v. Local Union 542 – motion to disqualify based on
judges supposed impartiality based on his involvement in racial
justice issues.
f. Blank v. Sullivan – motion for Judge to dismiss herself because of
the content of the case – sex discrimination – because she was a
female judge. She said there was no reason to disqualify because
she didn’t know them.
B. The Judges Powers
i. Injunctions and Contempt
a. Two related situations where the trial judges authority is at its peak
– issuance of injunctive relief and the power to hold in contempt
one who disobeys he court order.
b. Collateral Bar Rule – cannot challenge the validity of an injunction
after you have already violated it, have to challenge the injunction
before you violated it (Walker v. City of Birmingham)
1. TRO – temporary restraining order
2. If TRO issued you have to challenge it then or not violate
3. Have to appeal an injunction, can’t just violate the
injunction to get a bad law changed.
c. Injunctions/judicial orders are powerful because they can be
backed up with contempt orders and fines (New York State
National Organization for Women v. Terry)
1. Relevant Rule – 65 detailing the procedure for injunctions
and restraining orders
i. 65(a) Preliminary injunctions require notice
ii. 65(b) TROs don’t but must have requirements of (1)
(a) and (b)
d. Judges have great power over the individuals before them
e. TRO can be issued ex parte as well as in advance of any
adjudication on the merits
ii. Motion for Reinstatement of Contempt Fines
a. Whether a contempt is criminal or civil turns on the character and
purpose of the sanction.
1. Civil contempt fines seek one of two objectives:
i. Coercion – to force the contemnor to conform his
conduct to the court’s order.
ii. Compensation - civil fine may be imposed on the
contemnor to compensate the victim for the loss or
harm caused by the unlawful conduct
2. Purge provisions suggest that the courts objective is to
coerce not punish (punishing is a criminal contempt and
requires a criminal trial). A fine without a purge provision
(therefore) suggests an intention to punish.
i. Enables defendants to avoid fines by compliance
with the court’s order
C. The Jury: The Seventh Amendment Right
i. The Jury Trial Advantage
a. The right to a jury trial is preserved in Federal courts by the 7th
Amendment as reflected in Rule 38.
b. A party waives a jury trial unless its demand is properly served and
filed. A proper demand (Rule 38b) may only be withdrawn with
the parties Consent (Rule 38d)
c. The plaintiff and the defendant has a right to a jury trial.
d. Advantages of a Jury Trial:
1. Less Baggage from hearing similar cases, more likely to
keep an open mind and not prejudge a case simply because
it bears resemblance to earlier cases
2. Benefit from input of input from a number of people
3. Hear only admissible evidence
4. Jurors do not speak directly to lawyers so there will not be
built up hostility, less hostility form the adversarial process
5. Biases and prejudices cancel each other out because of the
cross section of the community.
6. Jury has a better chance of being considered a peer group
7. Jury from all parts of the community will be in touch with
community mores and standards
8. Juries are especially good at resolving credibility issues
e. Disadvantages of the Jury Trial:
1. Corporations feel a jury may go with emotions rather than
understand complex ideas
2. Want expertise to decide cases
3. Jury may not be able to screen information, or ay ignore the
law (nullification)
4. Juries aren’t really accountable to anyone
5. Hung juries can be a problem
6. Juries are inefficient
7. Many civil matter are too complex for lay people
f. Advantages of a Trial by Judge:
1. Judge presumed to know the law and may eliminate some
need of the attorney’s to devote time and resources to
explaining it
2. Judges can ask Questions with Knowledge
3. The judge can deliberate alone eliminating hung juries
4. Judge often has experience in sifting through evidence,
which may help resolve disputed facts
5. Judge is likely to be more consistent in deciding cased than
a group of juries.
ii. Incidents of Jury Trial: Size and Unanimity
a. Rule 48 Number of Jurors; Verdict
1. Jury can be 6-12 people
2. Jury verdict must be unanimous unless otherwise stipulated
b. Courts decided 6 was the minimum in Ballew v. Georgia – too few
juror denies due process because minority views are silenced and
less deliberation occurs, takes away the voting power of individual
jurors with minority views and = bad verdicts
iii. Interpreting the 7th Amendment: The Historical Test
a. Courts rely on history to determine when the right to a jury trial
applies
b. Two Part Test to Determine if Right to Jury Applies
1. Would this kind of Claim normally have been tried to a
court of law or a court of equity
2. What is the type of remedy sought – is it a remedy usually
given in a court of law or equity
- generally this hangs on the 2nd prong and is determined by
- (Curtis v. Loether)
c. Matters of law have a right to a jury trial
1. If the remedy sought is money it is a matter of law
2. Law typically compensates with money, wants to make you
whole
d. Matters of equity there is no right to a jury trial
1. If the remedy sought is injunction or other non-monetary
relief then it is a matter of equity
2. Equity acts on the person, wants to be fair
e. If a statute expressly provides for a jury trial then you must be
given a jury trial.
f. Civil rights cases: Disparate impact cases aren’t entitled to $ so are
not entitled to a jury trial but mixed motive and intentional
discrimination cases are entitled to $ so they are entitled to a jury
trial
iv. Preserving the Right: The Order of Trial
a. In cases where there are issues of law and equity, you must resolve
the law claims first because they require jury trials and if the judge
decides the equity first the law claims may never get to a jury
(Beacon Theaters v. Websters)
1. Presumption to try the legal claim first
2. Would need a good reason to overcome the presumption
3. Clean Doctrine (do equitable first) – NOT ALLOWED
4. There is a presumption that you try a claim before a jury of
a case has both jury/non-jury issues if they are not severed
5. Equity cannot interfere with a right to a jury trial on a
matter of law
b. Declaratory Judgment Act – specifically preserves the right to trial
by jury. (Beacon Theaters, Inc. v. Westover)
1. Preserves the right to a jury trial but does not create the
right where one where one would not have existed
2. Rule 57 – a rule 57 is a declaratory judgment that seeks to
establish that you are not in violation and bars other parties
from suing.
i. another party can override 57 if they demand and
have the right to a jury trial under R.38 and 39
c. Rule 42(b) – allows severing claims and get separate trials
v. The Jury’s Competence: A Functional Analysis
a. Split in jxs whether Markman can be read as an exception to jury
trial for complex litigation – complexity exception to 7th
Amendment
b. Markman v. Westview Instruments
1. Court determined that the a patent case was too complex
for a jury and denied a jury trial
2. However historically patent law was a common law issue
and suited for a jury
c. Ninth Circuit rejected the complexity exception
D. Choosing a Jury
i. The Law of Jury Selection
a. Jury selection cannot discriminate against any group but it does not
necessarily have to be representative of all group (logistically
impossible). (Thiel v. Southers Pacific Co.)
1. The Pool of jurors must be representative of te community
as a whole
2. The venire and jury do not
3. Cannot challenge just the venire as unrepresentative, must
challenge the pool as unrepresentative
b. Preemptory Challenges
1. No preemptory challenges on the basis of race in civil cases
(Edmonson v. Leesville Concrete Co.)
2. Cannot discriminate in jury selection on basis of sex (J.E.B.
v. Alabama)
3. Courts must entertain challenges to a preemptory challenge
and have the attorney give a legitimate reason
E. Managing the Jury
i. Starting Over: The New Trial Motion
a. Where a jury has been tainted or evidence has been admitted that
should not have been admitted a new trial motion can be made.
b. To determine if improper information was given to the jury and if
that information prejudiced the other party look at the context of
the case (the court has to be deferential to the trial judge on review
because they were present and saw how the jury was affected):
(Sanders-El)
1. The closeness of the case, if the case is very close it is more
likely that the information was prejudicial
a. The original case was exceeding close and already
resulted in a mistrial once
2. The motivations or thoughts of the counsel entering the
evidence
a. Counsel new the evidence was irrelevant and
prejudicial and the act was neither isolated or
accidental
3. Whether or not the jury was given any curative instructions
4. Nature of evidence and its inherent prejudicial nature
5. Whether the case relies on the credibility of a witness
whose credibility would be affected by the evidence
c. Orders for new Trials cannot be appealed – have to have the new
trial
d. Judge can order a new trial sua sponte
e. Ethical Standards lawyers should follow p. 729
f. Judge can also order a new trial where they think that the verdict is
not supported by evidence
1. Most courts hold that the trial judge may disbelieve the
evidence and grant a new trial in the interest of justice
g. The 5th Circuit has construed Rule 50(c) to require that a part who
wins on a motion for judgment as a matter of aw but who does not
press for a contemporaneous ruling on its alternative motion for a
new trial waives any right to seek a new trial after any appellate
reversal on the merits.
ii. Appellate Review of Jury Verdicts
a. An Appellate court can grant JMOL
b. Weisgram v. Marley Co. – lower court allowed expert testimony
that shouldn’t have been allowed in, on appeal the court removed
the evidence and then granted JMOL to the moving party. The
other side said you can’t do that but the court said they could.
c. A fortiari argument: If an appellate court can overturn a verdict
after a jury trial with valid evidence then they can the appellate
court can overturn a verdict based on invalid evidence.
d. Rule 50(a)(1) – in granting JMOL court has to determine that a
reasonable jury would not have any legally sufficient evidentiary
basis for a jury to find for the opponent of the motion
iii. Excessive Verdicts
a. Curtis publishing Co. v. Butts - published slanderous story about
the plaintiff, plaintiff gets 3mil in punitive and the court says take
only 400k or get a new trial. The Appellate court said no new trial
but you only get 400k for punitive damages.
1. Substantive considerations
2. Procedural considerations: could be a never ending process
also want to stop it here and say trial court did a fine job
b. Additur and Remittitur – courts can add and reduce the awards in
cases
1. Judge raises the amount because he finds it too low
i. low verdicts could be a sign that there was not
unanimity
ii. A way of saying that the jury was not correct in
their verdict
c. The Role of the Appellate Court in Administering Remittitur
1. Remittitur cannot be accepted under protest, it is either
accepted or appealed can’t accept then appeal
2. If the party wants the whole verdict they must move for a
new trial and start over, they cannot accept the remittitur
and then appeal it to get it all.
d. Excessive Verdicts and Due Process
1. Jury’s award must be exercised within reasonable restraint,
things to consider p.748
2. Due Process problems with large awards- were the s put
on notice that this was a consequence?
3. When the ratio of compensatory damages and punitive
damages is way off it is suspicious and remittitur may be
justified (BMW) – 9x times was the max that seemed okay
F. Alternative Decision Makers
i. Arbitration
a. Less than trial more formal than other forms of ADR– most formal
form of ADR
b. Constitutional rights to a jury trial may be waived contractually in
favor of arbitration (Gilmer v. Interstate/ Johnson Lane Corp)
c. Just as JMOL and Summary judgment, arbitration contracts
diminish the prevalence of jury trial
d. Agreeing to arbitration in suits under a statute does not change the
griever’s substantive rights under that statute.
e. Can get out of an arbitration agreement if there is an inherent
conflict between the arbitration clause and what the statute is
meant to do. Can also look for express or implied wording
prohibiting giving up of the right to jury trial under that statute.
1. arguments against arbitration in a case in Gilmer p. 762-
764
f. Arbitration Procedure:
1. Less formal than a jury trial – parties may choose not to be
represented by counsel, rules of evidence and civil
procedure are largely abandoned
g. Both parties must agree to use arbitration for it to be used
otherwise the award is not binding – can’t bind someone to an
award that hasn’t agreed to arbitration
h. Arbitration can be costly – can be even more costly than trials
sometimes. – have to pay half cost of arbitration you initiate
i. Most arbitration clauses include nonappealability clauses – “ as
long as [an honest] arbitrator is even arguably construing or
applying the contract and acting within the scope of authority the
fact that a court is convinced he committed serious error does not
suffice to overturn his decision
j. Green Tree v. Randolph p. 771
k. Claims Resolution Facilities p. 773
ii. Mediation
a. Mediation is different from arbitration because mediation is NOT
binding on the parties
b. Woods v. Holy Cross Hospital – FL medical malpractice laws
required mediation, this found to be ok
c. Mediation does not violate Rule 1 or 2
d. If a federal court may constitutionally refer a complicated matter to
an auditor or special master (Rule 53), it ma certainly utilize a
medical liability mediation panel without violating the dictates of
the seventh amendment
e. RULE 53: Masters
iii. Other Forms of ADR
a. Negotiation –probably the most common form of dispute
resolution , in which two or more disputing parties try to work out
their differences without intervention.
b. Med-Arb – form of private dispute resolution combines mediation
and arbitration into a single process. The dispute is firtst mediated,
and if that prove unsuccessful, the dispute moves into arbitration –
found in many labor-management agreements and increasingly in
consumer banking.
c. Mini-trials – This form of private dispute resolution is best thought
of as an aid to settlement, the concept is that the parties each
present their cases in truncated form to a neutral third party who
renders an opinion. The opinion generally is not binding but
provides the basis for settlement discussions between the parties
d. Summary Jury Trials – A form of Court Ordered mini-trial in
which the neutral party rendering an opinion is a jury drawn from
the same population as they would be in a real trial – can aid in
settlement
e. Early Neutral Evaluation – experimental – under which an
evaluator – not the trial judge- is assigned to eyeball the case and
meet with the parties, discuss disputed facts, explore settlement
possibilities and evaluate parties relative chances
f. Multidisciplinary Parties – attorney’s partner with non-lawyers too
provide a range of corporate services eschewing the traditional role
of lawyers
iv. Critical Perspective on ADR p.785 -787
a. Tailoring procedure to particular types of disputes risks
reproducing the arcane system of code pleading that the modern
rules were intended to eliminate.
1.
b. Favors informal, discretionary decision making over more formal
an bounded methods
c. Creates more uncertainty in decisions – can lead to more
impressionistic, idiosyncratic, or standard less decision making
which may result in bias against some litigants or arbitrary
outcomes
d. May tend to favor the economically or emotionally stronger party
or the one who can least tolerate conflict or who most values a
harmonious resolution
e. May inspire some parties to settle for far less than they might
obtain before a judge in a traditional adversarial proceeding
f. May neutralize conflict that could threaten state or capital
g. People regard a procedure as fair when they feel they have some
control over it in a specific sense that they are allowed to particular
and feel as though they have been heard
III. CLASS ACTIONS (RULE 23)
A. Introduction
i. Class actions are a joinder device – joins parties and claims if they are
similar – they allow representative to sue on behalf of large numbers
unnamed others that will be bound by the judgment
ii. This is separate and different from regular joinder because under joinder
all parties are present and participating and in Class Actions not all
members present it is representative litigation.
iii. In 1966 rule 23 took its present form - tried to get rid of the confusion and
make it easier to use
iv. RULE 23
a. Threshold requirements:
1. Numerosity: so numerous that joinder is impracticable
2. Commonality: questions of law or fact common to the
whole class
3. Typicality: claims or defenses of representatives are
typical of those of class
4. Adequacy of Representation: class representative will
fairly and adequately represent the interests of the class (is
this attorney or party?)
b. If a claim makes it past a then you have to fulfill one part of b
1. Prosecuting separate claims by or against individual class
members would create a risk of:
A. Establishing incompatible standards of conduct for
the party opposing the class
B. Individual adjudications would preclude others
from pursing their claims or interests (one would
dispose of all other cases – like collateral estoppel)
2. Injunctive or declaratory relief sought by class as a whole
3. Class issues predominate over individual issues and class
action superior method for adjudicating the issue. To
determine this consider:
A. Class members’ interests in individually controlling
the prosecution or defense of separate actions;
B. the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
C. The desirability or undesirability of concentrating
the litigation in the particular forum; and
D. the likely difficulties in managing a class action
c. Certification Order; Notice to Class Members, Judgment; Issues
Classes; Subclasses
1. Certification Order
A. Time to Issue: certification has to happen in an
early practicable time after person sues or is sued as
a class representative
B. Defining the Class: order certifying class MUST
define class, class issues or defenses and MUST
appoint counsel under 23(g)
C. Altering or Amending the Order: order granting or
denying certification can be amended or altered
before final judgment.
2. Notice
A. For 23(b)(1) and 23(b)(2) the court MAY direct
notice to the class.
B. For 23(b)(3) claims the court MUST direct to class
members the best notice hat is practicable under the
circumstance, including individual notice to all
member who can be identified through reasonable
effort. The notice MUST clearly and concisely
state in plain, easily understood language:
i. the nature of the action;
ii. the definition of the class certified;
iii. the class claims, issues, or defenses;
iv. that a class member may enter an
appearance through an attorney if the member so
desires;
v. that he court will exclude from the class any
member who requests exclusion (OPT OUT
PROVISION)
vi. the time and manner for requesting
exclusion; and
vii. the binding effect of a class judgment on
members under Rule 23(c)(3)
3. Judgment – Whether or not favorable to the class the
judgment in a class action must:
A. 23(b)(1) or 23(b)(2) include and describe those
whom the court finds to be class members (who is
bound)
B. Rule 23(b)(3) include who notice was directed to ,
who aren’t excluded and who the court finds to be
members of the class
4. Particular Issues: Can bring class action with respect to
particular issues in an action
5. Subclasses: When appropriate, a class may be divided into
subclasses that are each treated as a class under this rule
[each must meet the requirements of 23(a) and fit into a
part of 23(b)]
d. Conducting the Action
1. Court may issue orders that:
A. determine the course of proceedings or prevent
undue repetition
B. Require giving appropriate notice to come or all
class members of
i. any step in the action
ii. the proposed extent of the judgment or
iii. the members’ opportunity to signify whether
they consider the representative fair and
adequate to intervene and present claims or
defenses, or to otherwise come into the
action
C. impose conditions on the pre parties or on
interveners
D. require that the pleadings be amended to eliminate
allegations about representations of absent persons
and that the action proceeded accordingly; or
E. deal with similar procedural matters
2. Combining and Amending Orders. An order under Rule
23(d)(1) may be altered or amended from time to time and
may be combined with an order under Rule 16.
e. Settlement, Voluntary Dismissal or Compromise. The claims,
issues or defenses of a certified class may be settled, voluntarily
dismissed or compromised ONLY with the courts approval.
Following procedures apply:
1. Court MUST direct notice in a reasonable manner t all class
members who would be bound by the proposal
2. If the proposal would bind class members they court MAY
approve if ONLY after hearing an on finding that it is fair
reasonable and adequate
3. The parties seeking approval must file a statement
identifying any agreement made in connection with the
proposal
4. If the class action was previously certified under 23(b)(3),
the court may refuse to approve a settlement unless it
affords a new opportunity to request exclusion to individual
class members who had an earlier opportunity to request
exclusion but did not do so.
5. Any class member may object to the proposal if it requires
court approval under this subdivision (e); the objection may
be withdrawn ONLY with the court’s approval.
f. Appeals. A court of appeals may permit an appeal from an order
granting or denying class-action certification under this rule if a
petition for permission to appeal is filed with the circuit clerk
within 10 days after the order is entered. An appeal does not
stay proceedings in the district court unless the district judge or the
court of appeals so orders.
g. Class Counsel
1. Appointing Class Counsel. Uness a statute provides
otherwise, a court that certifies a class must appoint class
counsel, In appointing class counsel, the court:
A. must consider: i-iv
2. Standard for Appointing Counsel
3. Interim Counsel
4. Duty o Class Counsel: Class counsel must fairly and
adequately represent the interests of the class.
h. Attorney’s Fees and Nontaxable Costs
v. Angelastro v. Prudential-Bache Securities, Inc.
a. Illustration of 23(c)(4)
b. Can bring suit where some issues are tried as class and others are
not.
c. Was a 23(b)(3) case – seeking damages
d. Did not get class certification- failed on the predominate prong
B. Appeal of Class Certification
i. Rule 23(f)
ii. Blair v. Equifax Check Services
a. Set forth considerations of when to take the appeal:
1. Death Knell Cases: denial makes valid claims disappear,
cases where the claims are too small to bring individually
and the harm will not be addressed without a class action
case.
2. Where granting certification would make valid defendants
settle unfairly – use by plaintiff with meritless claims and
the defendant is forced to settle
3. Development of law cases – where a case would develop
the law in one area or fundamental the question: the more
fundamental the question and the greater the likelihood that
it will escape effective disposition at the end of the case the
more appropriate is an appeal under Rule 23(f)
1. Development of Class Action Law – we want these
cases brought.
b. Continues litigation during appeal unless the judge grants a stay
c. How to deal with overlapping cases:
1. Easterbrook thinks it is best to join them
2. Could also stay one case while the other progresses
3. Transfer then to the same jurisdiction or docket
4. If they are over lapping the case decided first is binding on
the other case – but can’t just dismiss one, have to let them
play out the first started might not be the first finished.
C. Who is Bound? – Of Civil Rights and Class Action
i. A class member is not bound by a decision if their interests are not
adequately represented (that would be a problem of due process)
(Hansberry v. Lee)
a. Hansberry was not bound because his interests were adverse to
those of the class
b. Not bound if interests are not adequately represented in another
case or are in opposition to the class (that was to bind him)
c. If member of class and didn’t know it but court determines that
you were adequately represented you are bound
d. Inadequate representation violated Hansberry’s Due Process Right
e. In b(1)/(2) claim is a representative adequately represents the
interests of the class member of the class are bound even without
notice.
ii. Joinder (Rule 19b) is required to bind parties to the settlement, cannot
leave up to other parties to intervene under Rule 24. (Martin v. Wilks)
a. Parties to the suit have a better understanding of who will be
affected by the ruling/settlement and who they will want/need to be
bound.
b. Overruled in employment cases but still good law in cases such
as environmental cleanup cases, antitrust litigation, securities
fraud.
c. We don’t want to bind parties that are not represented.
d. Other parties must be joined they do not have to intervene.
e. Automatic joinder required, can’t leave up to other interested
parties to intervene
D. Notice and the Opportunity to be Heard
i. Notice cannot be substituted by adequate representation in a 23(b)(3)
action (Eisen v. Carlisle – securities case)
ii. Rule 23(b)(3) is clear notice and adequate representation are both required
iii. Judge cannot on his own switch the burden of cost of notice to the
defendant, though the parties can make an agreement on their own. (judge
would have to peak ahead at the merits and that isn’t allowed)
a. Without another agreement between and , bears the burden
of the cost of notice
iv. Mullane test applies – notice should be reasonably calculated to give
actual notice to the parties
a. Notice by publication is inappropriate when you have the names
and addresses of people
b. Must do it like you mean it, the methods used should be those that
you would use if you actually want them to get notice; no matter
how expensive
1. If it is too expensive maybe you want to move the court to
make a subclass
E. Choice of Forum and Mode of Trial Issues
i. Under 23(b)(3) class action claims - absent plaintiffs get less due process
rights than absent defendants. (Phillips Petroleum v. Shutts)
a. The opt out provision was sufficient to bind plaintiffs to the ruling
in this case because it was enough to satisfy due process because it
was sufficient to show they had consented to pjx.
b. Distant parties can be bund in a class action
c. Due process can be met for distant parties as long as minimum due
process is met (opt out /notice 23b3) – lower standard for distant
plaintiff’s (less at stake for them) than for distant defendants
1. Defendants have more at stake, have to hire counsel in a
foreign jurisdiction, defendant can’t opt out they have to
defend, may have to pay a huge settlement or on an adverse
judgment, defendants have to pay discovery cost and deal
with the burden of discovery
2. Plaintiffs need lower standard because they must be
adequately represented by counsel so they are not truly
absent, Rule 23 provides protections 9notice, opt out
adequate rep), certification process (judge has to approve
settlement which is an added protection RULE 23(e) ), the
parties probably meet minimum contacts, parties probably
consented to waiving their due process rights.
d. The purpose of class actions should be honored
1. If no state class actions could be brought the purpose of
class actions would frustrated
ii. Diversity Requirements in Class Action (for subject matter jx)
a. Citizenship
1. Just the named representatives are looked out in
determining complete diversity.
2. A non-diverse plaintiff is still bound even though if they
had been named they would destroy diversity.
3. All named representatives must be diverse from all
defendants
b. Amount in Controversy
1. At least one member of the class must satisfy the amount in
controversy requirement (not every member has to do it) –
then through supplemental jx the court has jx over all
members of the class – can’t aggregate the amounts
2. Does this really make sense?
F. Settlement
i. When certifying class for settlement one still needs to satisfy all
requirements of class certification for Rule 23. – can still certify for
settlement just need to meet the requirements
ii. Court was concerned with the conflict of interests within the class and
with the attorney – the class wasn’t adequately represented. (Amchem
Products v. Windsor) – a lawyer can’t adequately represent one who needs
money now and one that might later.
iii. Things to consider when certifying a class for settlement: whether
settlement limits the rights of parties who opt out, the interest of potential
subclasses, the size and limited nature of the fund.
iv. Ortiz v. Fiberboard – before a court can certify a mandatory settlement
class [no option to opt out 23(b)(1)(B)]it must assure the adequacy of the
limited fund to meet all the needs of the claimants – do this through
bankruptcy proceedings
a. Before a court can certify a mandatory settlement class with a
limited fund settlement the court must ensure must that the limited
fund is adequate to cover all claims
b. Mandatory settlement – class without an opt out provision
iv. Devlin bolstered rights of non-named class members to appeal settlement
a. Non-named class members may appeal class certification for
settlement?
G. The Alternative Universe of Class Actions
i. Class actions are different than normal litigations;
a. Class actions are more about the attorneys than the clients
b. The lawyers on both sides are often trying to work together (get a
settlement for and want to be done with litigation)
1. Like negotiation
2. work outside the traditional roles of litigation
3. even get together to determine who the class will be
4. no presidential value of class actions that settle
5. Settlement agreements can work around precedent
c. Attorney Fees
1. American Rule: pay your own way
2. Class Action settlement often go around this – incentive for
attorney to run up fees depending on the type of payment
plan they have
3. Contingency Fees: just get a % or chunk of the common
fund/pool
4. Loadstar Fees: reasonable compensation + lawyers
competency + the risk they took on
i. incentive to run up hours, delay litigation, or
exaggerate the number of hours expanded.
ii. Class actions for settlement and class actions can bind future members of
the class???