a. Consistency with the course
b. Comprehensive (Will cover every major subject in some degree)
i. Objective questions and problem
ii. Use Principles, Fact Analysis, Conclusion Form
iii. Closed Book
iv. Answer Space in Exam (no bluebook)
v. Exam on reserve
i. Multiple choice (1 hour) (Will cover Chap. 12-15)
ii. Essay (2 hour)
iii. Practice Oriented Questions
II. PERSONAL JURISDICTION
a. A court has personal jurisdiction when the both the State-Long Arm Statute and
Due Process are satisfied.
b. Minimum Contacts
i. Due process requires that a person have minimum contacts with the
forum state such that the maintenance of the suit does not offend the
traditional notions of fair play and substantial justice.
ii. Due process requires that the contacts are such that the person
purposefully avail himself to the privileges and protection of the state.
iii. Due process requires that the contacts are such that the person can
reasonably anticipate being hailed into court.
c. General and Specific Jurisdiction
i. A court has specific jurisdiction when the contact and the claim are
ii. A court has general jurisdiction when the claim is unrelated to the
contacts where the contacts have been continuous and systematic.
d. A commercial defendant must make a “compelling” showing that the
convenience factor defeats personal jurisdiction.
e. “New” In Rem Jurisdiction
i. Where the physical property is the “minimum contact,” it must be related
to the litigation and the forum state.
f. Tag Jurisdiction
i. Due process allows the service of a non-resident while in the forum state,
even if her reason for entering the state is unrelated to the litigation.
g. Consent Jurisdiction
i. General Appearance occurs when a party comes to court to answer
allegations and is consent to personal jurisdiction.
ii. Special Appearance occurs when a party comes to court for the sole
purpose of raising the jurisdiction issue. This constitutes consent for the
jurisdiction issue only. If a party loses on the jurisdictional issue the case
is tried on the merits and the party can then appeal the jurisdictional
h. Contract Jurisdiction
i. Form contracts are subject to scrutiny for “fundamental fairness,” but if
party has sufficient notice the court will enforce the jurisdiction clause.
i. Jurisdiction by Necessity
i. Unusual cases may be solved in a forum lacking jurisdiction simply
because no other forum would be more appropriate.
j. Challenging Personal Jurisdiction
i. Special Appearance, see supra.
ii. A party may choose not to show up a court and a default judgment will
be entered against them. The party may then “collaterally attack” the
judgment in their home state.
1. ***If this happens the party forfeits the right to argue on the
merits of the case.
a. Notice must be reasonably calculated, under all circumstances, to apprise
interested parties of the action and give them the opportunity to be heard.
b. Due Process provides that service may be delivered:
i. According to state law methods
iii. with an agent appointed by the individual or state
iv. or “leave with”
1. Dwelling or usual place of abode
2. With a person of suitable age and discretion
3. Then residing in the same dwelling
c. Due process provides that service may be delivered to a corporation by:
i. State law methods
ii. In hand delivery to an officer or a general or managing agent
iii. OR an agent authorized by appointment or law.
d. A judge may order any method of service that complies with Due Process,
substituted service, if the plaintiff can prove the impracticality of usual service.
a. Venue is a county or geographical area in which a court with jurisdiction may
hear and decide a case.
b. Forum Non Conveniens allows the court to dismiss the case so that the action
can be brought in a more “convenient forum” according to the court’s discretion
c. A federal court may transfer venue for
i. The convenience of parties and witnesses
ii. In the interest of justice
iii. To where the suit might have been brought
d. In a diversity case,
i. If all defendants reside in the same state, the action may be transferred to
a judicial district where any defendant resides OR
ii. A judicial district where “a substantial part of the events or omission
giving rise to the claim occurred,” or a substantial part of the property in
issue is situated.
iii. If there is no district in which the action may otherwise be brought, then
venue is proper in a judicial district in which the defendants are subject
to personal jurisdiction at the time the suit is commenced.
e. In non-diversity cases if i. and ii. above cannot be satisfied then venue is
appropriate where any defendant can be found.
f. Corporations are residents of any judicial district in which they is subject to
personal jurisdiction at the time the suit is commenced.
V. SUBJECT MATTER JURISDICTION
a. In order for a federal court to have subject-matter jurisdiction there must be
diversity of citizenship or the claim must arise under federal law.
b. State courts can hear questions of federal law, if the plaintiff brings the suit there
and the defendant does not move to have the action removed to federal court.
c. NOTE *If a plaintiff’s original petition is properly brought in a particular court,
but an amendment increases the amount in controversy above the court’s
jurisdictional limits, the court will continue to have jurisdiction if the additional
damages accrued because of the passage of time.
d. “Arising Under” Jurisdiction (Federal Question Jurisdiction)
i. Federal Courts have jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
1. Ingredient Test: If the federal law is a substantial ingredient of
the claim, then the federal court has SM Juris.
2. Creation Test: If the federal law created the claim, then the
federal court has SM Juris.
ii. A plaintiff may not assert a federal claim in anticipation of a defense to
gain federal jurisdiction.
e. Diversity Jurisdiction
i. U.S.C. 1332 - All defendants must be citizens of different states at the
time of complaint and the amount in controversy must exceed $75,000.
a. A corporation is a citizen where it is incorporated and
it’s principal place of business is.
i. Bulk of Activities
ii. Nerve Center
1. NOTE * Bulk of Activities controls
unless the operations are far flung, then
the nerve center will suffice.
b. An individual is a citizen where they reside with the
intent of remaining there.
i. A person may move to establish diversity, but
they must plan to stay in the new state.
ii. A resident alien is under the jurisdiction of the
state in which he or she resides.
c. Parties cannot be improperly or collusively made to gain
2. Amount in Controversy
a. A plaintiff must pray for $75,001, but doesn’t have to be
awarded that amount in order for diversity jurisdiction.
b. If there are multiple plaintiffs, each claim must exceed
VI. SUPPLEMENTAL JURISDICTION
a. If there is a non jurisdictional claim that is so related to form “part of the same
case or controversy,” then the federal court has supplemental jurisdiction.
i. A court may accept or decline supplemental jurisdiction
1. if the state claim is complex or novel
2. if the claim substantially predominates over the claim or claims
over which the district court had original jurisdiction
3. if the district courts has dismissed all claims over which it has
4. if there are exceptional circumstances or other compelling
reasons for declining jurisdiction.
a. A civil action may be removed to a federal court from a state court, if a federal
court would have jurisdiction.
i. A defendant who is a local citizen cannot remove the case UNLESS
1. the claim arises under federal law.
b. Defendant must file for removal 30 days after receiving notice that the case is
removable and 1 year from the time the diversity suit is filed.
VIII. THE ERIE DOCTRINE (Applicable only to DIVERSITY CLAIMS or
SUPPLEMENTAL JURISDICTION CLAIMS)
a. A federal court will apply state substantive law and federal procedural law.
i. State Substantive Law
1. Outcome Determinative Test – If the rule is likely to make a
difference in the outcome, then the rule is substantive.
2. Absolute Outcome Determinative Test – If the rule has a
strong likelihood or will certainly affect the outcome, then it is
3. The Interest Balancing Approach – If the underlying policies
of the state law are more substantial than those of the federal law
then the state law will be applied and vice versa.
4. Deference to a Controlling Federal Rule – If the federal law is
fairly construed and sufficiently broad to come into direct
conflict with state law and the federal law is a valid exercise of
Congress’ rule making authority then the Federal Rule applies.
5. The Policies-of-Erie Approach – If application of federal law
would produce irrational differences in the result and encourage
forum shopping, the matter is substantive and state law applies.
6. ***If there is a controlling federal rule then it applies, if not then
use one of the other four tests to determine what law to use.
ii. The Federal Court must apply the state law of the forum state. The
forum state’s law may apply yet another state’s law.
1. “Lex Loci Delicti” – place of the injury. (If the forum is in NY,
and NY law provides that the court should use the law in the
state where in the injury occurred, say Penn., then the federal
court will use Penn’s law.)
2. “State’s interest analysis”
a. “most significant relationship test” – A federal court
may use the law of the state that has the most significant
relationship to the case.
3. ***The federal judge is a ventriloquist’s dummy.
iii. Erie educated guess - If there is no controlling state law, the federal
court will follow the state’s highest court. If there are no applicable
decisions then the federal court will make an educated guess based on
a. You must prove what you plead. Proof without allegation is as unavailing as
allegation without proof.
b. The Plaintiff’s Claim
i. Cause of Action pleading – notice of legal and factual bases for each
element that must be proved for recovery (Negligence = Duty, Breach,
Causation and Injury).
ii. “Claim” pleading – gives notice of the type of claim and the factual
context (D was negligently driving his car).
iii. Special Damages must be specifically stated in the claim.
iv. A claim of fraud must be stated with particularity.
v. A plaintiff may plead inconsistent causes of action in separate counts of a
vi. Dismissal of a Claim
1. The claim must be a short and plain statement that gives fair
notice of the basis of the claim.
2. If all the facts in the claim are true and the plaintiff cannot
recover as a matter of law, the court will dismiss the claim.
c. The Answer
i. Defendant may make a motion to dismiss based on jurisdiction, venue,
process, service, failure to state and claim and failure to join a party.
ii. Admissions and Denials
1. A defendant in federal court cannot make a general denial that
nothing in the claim is true.
a. A general denial in state court makes the plaintiff prove
2. A defendant must answer the complaint with denial or
affirmation of each part of the plaintiff’s pleading within 20 days
to the best of his knowledge, information and belief.
3. Affirmative Defenses add a new fact or set of facts that defeats
the claim even if plaintiff proves all of the claim’s elements.
The party with the most knowledge must plead. (If a defendant is
immune, the plaintiff might not know this, so the defendant must
a. Contributory Negligence
d. Statute of Limitations
d. Certifications and Sanctions
i. When an attorney signs a pleading he certifies that there is evidence to
support the claim and that he has reasonably explored the claim.
ii. Rule 11 places a duty on each attorney to conduct a “reasonable
inquiry” into the viability of a pleading before it is signed.
1. The claim cannot be improper.
2. Claims must be warranted, based on established law or claim
must be non frivolous argument to extend, modify or reverse
3. There must be evidentiary support of the claim at time claim is
filed or to be gathered during discovery.
4. Denials must also have evidentiary support.
iii. “21-day Safe Harbor” Amendment requires the opposing attorney,
before filing a motion for sanctions, to serve a motion first on the alleged
offender, describing the specific conduct alleged as a violation. If the
violation is corrected within 21 days sanctions are nullified.
iv. Avoiding Sanctions:
1. conduct a reasonable investigation
2. client interview
3. demand letter
4. cross examine your client
5. hire an expert to tell you what the standard might be and what
tends to happen in similar cases
6. minimal legal research
7. immediately undertake discovery
i. A party has a right to amend
1. once “as a matter of course” before filing of a “responsive
pleading” (i.e. an answer)
2. or with the opponent’s agreement
3. or the court may “freely give” permission if justice so requires it.
X. MULTIPLE PARTIES AND CLAIMS
a. Counter claim – A sues B and then B counterclaims against A
i. Two types
1. Permissive – If the counterclaim does not arise out of the same
transaction or occurrence that is the subject matter of the
opposing party’s claim, the court may include it.
2. Compulsory – If the counter claim does arise out of the same
transaction or occurrence that is the subject matter of the
opposing party’s claim, the court must include it.
ii. The counterclaim can exceed the amount in controversy sought in the
iii. The court may allow a counterclaim that matured in a supplemental
b. Cross claim – Co-parties may assert claims against one another that arise out of
the transaction or occurrence as the main action by filing cross-claims.
c. Impleader – A sues B and the B impleads C where C is or may be liable to B.
i. B must assert the claim within 10 days after serving the original answer.
If not, he must can the court’s permission.
ii. Usually in indemnity or subrogation cases.
d. Permissive Joinder – All the plaintiffs/defendants must jointly and severally
assert a right to relief against all the defendants/plaintiffs as long as all of their
claims stem from the same occurrence and some question of law or fact common
to all the parties will arise in the action.
e. Compulsory Joinder –
i. A person is needed for just adjudication if
1. Complete relief cannot be given to existing parties in her absence
2. Disposition in her absence may impair her ability to protect her
3. Her absence would expose existing parties to a substantial risk of
double or inconsistent obligations
ii. If a party needed for just adjudication is amenable to process and her
joinder will not destroy venue or diversity, she must be joined.
iii. If her joinder would destroy diversity or venue or she is not amenable to
process, the court must decide whether the action can proceed in her
absence or must be dismissed. The court will consider:
1. whether the judgment in the party’s absence would prejudice her
or the existing parties
2. whether the prejudice can be reduced in shaping the judgment
3. whether a judgment in the party’s absence would be adequate
4. whether the plaintiff will be deprived of an adequate remedy if
the action is dismissed.
iv. There is a preference for dismissal if the case can be appropriately joined
f. Interpleader – A holds $100,000 and discovers B and C have inconsistent
claims to it. A interpleads B and C to battle it out.
i. A person with a claim against a plaintiff may be joined as a defendant
and required to interplead, if their claims are such that they may expose
the plaintiff to double or multiple liability.
i. Four Requirements
1. application of intervention must be timely
2. applicant must have an interest relating to the property or
transaction which is the subject of the action
3. applicant must be so situated that the disposition of the action
may impair or impede his ability to protect the interest
4. the applicant’s interest must be inadequately represented by the
existing parties to the suit.
ii. Matter of “Right” – When the intervenor claims a legally protectable
“interest” in the case that may be impaired and is not adequately
represented by any existing party, then there is an Intervention of Right.
iii. When the claim or defense presented by the applicant for intervention
has a question of law or fact in common with the existing action, then the
court may grant a Permissive Intervention.
h. Class Actions
i. Certification and Notice – Certification is a hearing to determine if class
action can be maintained. Notice must be served to all individuals by
mail if their names and addresses are known.
ii. Court has flexibility to tailor notice, pleadings and pretrial orders to the
iii. Representative must alert class members to the court’s dismissal or
compromise of the case.
iv. Four Requirements
1. Numerosity – The members of the claims must be so numerous
that their joinder is “impractical.”
2. Commonality – There must be common question of law or fact.
3. Typicality – Representatives must be typical of the class.
4. Adequate Representation – The court must find that the named
parties will “fairly and adequately protect the interests” of the
v. The case must also fall into one of 3 Maintainable Class Actions
1. Inconsistent Results – If individual suits would create
inconsistent results, then it is maintainable. (Big cheese. Some
get big hunks, others smaller hunks when they should all be
entitled to the same amount).
2. Uniform Injunctive or Declaratory Relief – Where the class is
trying to prove a statute unconstitutional, relief is granted with
respect to the class as a whole. (Civil Rights Actions).
3. Common Questions Predominate and Class Action is the Most
Manageable means of trying the case – Claims can be
independent as long as they arise in a context of sufficiently
a. The common questions must predominate over question
individual to each member of the class.
b. The class action must be the superior means of
managing the solution
i. Four additional factors to consider:
1. Class member’s possible interest in
individually controlling their actions.
2. Other pending litigation
3. Appropriateness of the forum
4. The manageability of the class action
a. Notice, division of damages,
i. Multi-District Litigation
i. Federal judges may order actions involving one or more common
questions of fact to be transferred for coordinated or consolidated pre-
trial hearings (not the trial itself) for the convenience of the parties and
witnesses to promote just and efficient conduct of the actions.
ii. Addresses the problem of scattered duplicative litigation that wastes
judicial and private resources.
j. Consolidation – When actions before the court involve a common question of
law or fact, the court may order all actions consolidated to avoid unnecessary
cost or delay.
k. Separate Trials – The court may take a single claim and split it in 2 to avoid
prejudice and further convenience. (Ex. Separate trial for cross claim, third-party
claim to preserve the right to a trial by jury).
l. Severance – The court may separate a case into multiple cases.
XI. DISCOVERY AND DISCLOSURE
a. Scope of Discovery
i. All relevant information is discoverable.
ii. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
iii. Privileged information is not discoverable. The party being discovered
must prove that the information is privileged.
iv. The court has discretion to shield a person from “embarrassment” or
“undue hardship” by issuing protective orders.
v. Discovery cannot be unduly cumulative or inconvenient and the
requesting party cannot have had ample opportunity to make the
discovery. The burden and benefit must be balanced by the court.
vi. Work Product, material prepared by the party, their attorney or
representatives in anticipation of litigation, is not discoverable.
1. ***“ESCAPE VALVE”*** – If the discovering party shows
there is substantial need AND undue hardship the court may
allow the information to be discovered.
2. The court will protect “opinion” work product.
i. Four types of experts
1. Testifying experts – fully discoverable
2. Consultants “retained or specially employed” for litigation, but
not to testify – usually not discoverable
a. ***ESCAPE VALVE*** - if it is “exceptional or
impractical for party to obtain facts or opinions on the
same subject by any other means.” (Example: If the
expert is the only one in the world who knows about the
issue at hand).
3. Experts consulted informally and not “retained or specially
employed” – not discoverable
4. Experts contacted for purposes unrelated to the litigation – fully
discoverable (Example: Experts who designed the product)
c. Protective Orders
i. Court must balance the need with the harm to protect parties against
undue burden, embarrassment or annoyance.
ii. First the discoveree must demonstrate that disclosure may be harmful. If
this is established then the burden shifts to the discoveror and they must
prove that the information is relevant and necessary. Then the court
balances the sides.
iii. The court may issue a protective order, order the information as non-
discoverable, provide a method for discovery, outline terms and
conditions, who may be present, confidentiality etc.
d. Discovery Devices
1. Written Deposition are useful for authentication of documents,
but not for gathering information from a witness because you
can’t play on the witnesses answers.
2. Depositions may be used to impeach witnesses at trial.
3. Depositions may be used it the witness is unavailable
b. Witness lives 100 miles away
c. Witness is unable to testify due to illness
d. Beyond subpoena range
e. Exceptional circumstances
4. If your opponent uses the deposition, then you can use the rest of
the deposition at trial.
5. Texas: you can use a deposition regardless of the presence of the
6. Form of Deposition
b. Witness background
c. The claimed incident causing injury
d. Cataloguing of all damages
a. A party must setup deposition by giving reasonable
i. Notice must include the name and address of the
witness, the time and place and a description of
tangible things to be brought by the witness.
b. compelling appearance (notice for party witnesses,
subpoena for non-party witnesses)
c. production of documents (“duces tecum” (bring with)
include description or tangible things to be brought by
witness in a subpoena or notice)
d. who administers (Officer authorized to administer oaths)
e. objections to form (leading question or answer that
doesn’t follow from a question.)
i. If its a procedural question then it must be
objected to early or promptly during the
deposition because it can be fixed immediately.
ii. If its substantive then it can be objected to at a
f. Signature (the deposition must be signed in front of a
reporter, or can be filed without a signature and signed
in front of a notary at a later date).
g. Stipulations – attorneys can change the rules if they are
i. Usual agreements – everything can be objected
to at trial including objections to form.
ii. When you examine an adverse witness you can
use leading questions that can’t be objected to
by the other party. (You want the usually
agreements when diposing an adverse witness
because there’s nothing the party can object to
1. Court must weigh the cost of answering and the value of the
2. “Contention Interrogatories” seek to discover opponent’s
contentions related to facts or the application of law to facts.
3. “pure” questions of law are objectionable.
a. Limited to 25 questions unless court allows additional
b. Each questions must be answered separately and fully in
writing. If the question is objected to, then the party
must state the reasons for their objection and shall
answer to the extent the interrogatory is not
c. The answers must be signed by the person making them
and the attorney must sign the objections.
d. Answers must be served within 30 days of receiving the
interrogatories unless otherwise directed by the court.
e. Objections must be stated with specificity
f. Party submitting the interrogatory may move to order
questions answered if the other party fails to answer.
g. If the answer can be determined from business records,
then a sufficient answer is to specify the records where
the answer can be found and afford the other party the
opportunity to examine them.
iii. Requests for Admissions
1. This is a great way to establish undisputed facts, the genuineness
of documents or the application of law to the facts.
2. A party must answer a request for admissions within 30 days of
service of the request.
3. If an objection is made the party must set forth reasons upon why
the party cannot admit or deny the matter.
1. The request for production shall specify the items with
2. A party who produces the documents for inspection shall
produce them as they are kept in the usual course of business and
label them to correspond with the categories in the request.
v. Motions for Mental or Physical Examinations
1. Discovering party must make a motion that shows the mental or
physical condition of the party is in controversy and good cause
(relevancy is not enough).
2. The examiner files a report that will be available to both parties.
3. Party who requests a report of the examination waives any
privilege to have another examination.
vi. Self-Initiated Disclosure
1. A party must disclose
a. Individuals likely to have discoverable information
i. Experts and Yourself!!! etc.
c. Damage calculation
d. Insurance agreements
vii. Duty to Supplement
1. A party must supplement incomplete or incorrect answers, if the
truth has not been made known to the other party.
1. Court may
a. order discovery
b. strike pleadings
c. establish facts
d. preclude facts
e. establish/preclusion order
f. dismiss; default judgment
g. contempt of court (party or witness)
a. Fault/negligence – attorney’s fees / you only pay for the
damage caused and the case is unaffected by the
b. Gross negligence/deliberate act will do for merit
3. Gamesmanship between attorneys maintains the adversary
system. Judgment is necessary to determine if attorney is
pushing or tripping on “reasonableness” standard (Too Cute test,
a. Pushing – using unreasonable discovery requests
b. Tripping – Unnecessarily hindering the discovery of
relevant non-privileged information by a variety of
means ranging from delay to concealment to the
destruction of evidence.
ix. Pretrial Conference to plan discovery are required unless court says
x. Certifications – The signature of the attorney is a certification that to the
best of the signer’s knowledge, information and belief formed after a
reasonable inquiry, the disclosure is complete and correct.
xi. Full Discovery Plan
1. Requests for admissions
5. Requests for Admissions
XII. PRETRIAL MOTIONS
a. Pretrial Conferences: Rule 16
i. Scheduling order required in all cases unless local rule exempts.
ii. Subjects Considered – anything to facilitate the resolution of the dispute
iii. Settlement – judge may order special procedures to facilitate settlement.
iv. Orders – pretrial order based on pretrial conference to control the action
from there on unless modifies to prevent substantial injustice.
v. Sanctions – insures the parties participate in good faith
b. Pretrial Orders: Rule 16
i. The court shall make an order which recites:
1. the action taken at the pretrial conference AND
2. the agreements made by the parties as to any of the matters
considered, and which limit the issues for trial to those not
disposed of by admission or agreements of counsel AND
3. such order when entered CONTROLS the subsequent course of
the action, UNLESS modified at trial to prevent substantial
ii. Pretrial order is liberally read unless modified. (straight jacket v. plan)
iii. When do courts modify the pretrial order?
1. If the court determines that refusal to allow a modification might
result in injustice while allowance would cause no substantial
injury to the opponent and no more than slight inconvenience to
the court, a modification should ordinarily be allowed based
upon the following factors:
a. Prejudice to the defendant
b. Prejudice to the plaintiff
c. Impact of modification at that stage of the litigation on
the orderly and efficient conduct of the case AND
d. The degree of willfulness, bad faith or inexcusable
neglect on the part of the party wishing to modify.
iv. Drafting Contents – anything to expedite the trial **don’t box yourself in
1. all contested issues of facts and law
3. all witnesses and the substance of their testimony
4. all exhibits
5. all pending motions
6. all requested charges to a jury
c. Judges as “Managers”
i. Sanctions for failing to participate in good faith attempt to follow the
wishes of the judge.
ii. ***Judge should act as a facilitater not a coercive snot.
iii. Magistrate Judges
1. Not approved by Congress.
2. 2 judges share a magistrate judge
3. Magistrate sets a hearing and manages it to expedite trial.
4. They can hold hearings and develop case plans.
d. Docket Control and Case Flow Management: Rule 6, 40, 78-79
i. Schedule Trial
ii. Motion for Continuance must be a proper form, supported by an affidavit
and is subject to the judge’s discretion.
iii. Reporting Rule – judge submits statistics as to case disposition
iv. Case Plans- scheduling plan tailored to the case
v. Differential Case Management – tracking (expedited, standard or
vi. Staging – Get parties to develop information needed for an assessment of
the case. If the case doesn’t end, then a second more detailed stage
vii. Civil Justice Reform Act
viii. Enforcement – Adjudication by deadline
XIII. ADJUDICATION WITHOUT TRIAL
a. Summary Judgment
i. If there is no genuine issue of material fact, then the moving party is
entitled to judgment as a matter of law.
ii. Burden is on movant. If movant establishes that there is no issue of
material fact, the non-movant must then produce issues of fact to destroy
iii. 3 ways for defendant to obtain summary judgment
1. undisputed showing of affirmative defense
2. affirmative proof negating a required element
3. showing that the plaintiff cannot prove a required element
iv. The plaintiff may move for summary judgment at any time after 20 days
from commencement of the action or after service of a motion for sum.
Judg. By an adverse party.
v. A defendant may move at any time.
b. Dismissal: Rule 12(c)
i. Judgment on the pleadings has a similar standard as dismissal, but occurs
after the pleadings
ii. Rule 41 – A plaintiff can dismiss any time before summary judgment
with or without prejudice (adjudication on the merits).
1. Motions with sanctions are with prejudice
2. Voluntary Dismissal is without prejudice the first time, but not
3. Dismissal for jurisdiction is without prejudice.
c. Default Judgment
i. Case is adjudicated on the merits.
ii. Liability is assumed.
iii. Damages must be proved by affidavit. There must be liquidated
damages to be evaluated by the clerk or otherwise, a judgment on the
iv. Judgment may be set aside for excusable neglect. (One year limit)
a. Jury Trial
i. Right to trial by jury exists in cases that would have been brought before
a common law court where the amount in controversy exceeds $20.
ii. Where both legal and equitable issues are presented in a single case,
‘only under the most imperative circumstances cant the right to a jury
trial be lost through prior determination of equitable claims.’
iii. Determining legal nature of an issue:
1. custom of reference to such questions
2. the remedy sought
3. the practical abilities and limitations of juries (policy
iv. Statutory violation – Both parties will try to find a pre-constitutional
analogy to determine whether or not the current issue is legal or
v. A demand for a trial by jury must occur within 10 days of the last
pleading under the court’s discretion to such issue to be tried. Otherwise
the right is waived.
1. Relief from waiver will not be permitted when cause by oversight
vi. If the case is removed
1. If you expressly demand a jury trial in the state court, you need
not re-demand in federal court.
2. If state law does not require an express demand, federal court
will not require an express demand.
3. If you don’t make a demand in state court, then you have 10 days
to make such a demand in federal court.
b. Jury Selection
i. Selection must be done at random from a “fair cross-section” and a “fair
opportunity” to serve.
ii. Jury cannot be a “cognizable group.” One cannot systematically exclude
individual classes of people.
iii. Jury Selection and Service Act allows a court to select a means of
summoning a jury pool.
iv. A challenge to the array must be made before Voir Dire or within 7 days
of the time when defects in the array should have been detected.
v. Unlimited number of challenges for cause. Excludes those jurors with
unavoidable bias which will affect the juror’s decision or whether she is
capable of deciding the case from the law and evidence.
vi. 3 Peremptory challenges.
vii. Each state may exempt certain groups (i.e. single mothers, students, etc.)
viii. Race and Gender – The Equal Protection Clause forbids using gender
or race as a proxy for juror competence and impartiality.
1. Prima Facie Case uses demographic number to show that
opposing side was racially or gender motivated when they
2. Other side must answer with a neutral explanation that had
nothing to do with race or gender.
3. Judge decides if explanation is a pretext or a legitimate
c. Voir Dire Examination
i. Determining the qualifications or undesirability of potential jurors.
ii. To get a new trial a party must first demonstrate that a juror failed to
answer a material question honestly and then further show that a correct
response would have provided bases for a challenge for cause.
iii. Attorneys, judge or combo can run Voir Dire.
iv. Judge’s duty:
1. Judges attempt to keep people on the jury and prevent mass
exodus. (Blowing the Panel)
v. Improper Questions:
1. Questioning should not be used to insert inadmissible
information. If info is inserted and the error is harmless, the trial
1. Emphasize favorable law or facts
2. Limit the effect of unfavorable law
3. Inoculation against unfavorable facts
4. Obtain Commitments
5. Argue the Case
6. Conditioning the Jurors to Accept One’s Proof
7. Build Rapport
8. Stealing the Opponent’s Thunder
9. Increasing or Decreasing the Impact of Concerns Outside the
Evidence (implying insurance coverage)
10. Guiding Conduct of the Jurors in Deliberations
11. Disqualifying Unfavorable Jurors
12. Using Potential Panel Members as “Witnesses”
d. Opening Statements - Create a lens through which the jurors will look when
examining the evidence.
e. Invoking THE RULE – witnesses not testifying must remain outside while
other witnesses testify.
f. Evidence – Relevant Evidence is admissible.
i. HEARSAY RULE: The relevant statement of a person not now
testifying, offered to prove what happened is inadmissable.
1. ***exceptions – excited utterances, business records,
government and public records.
ii. Relevance Balancing Test: If prejudice substantially outweighs the
relevance the evidence will not be admitted.
iii. Lay Witnesses must give opinions based on actual experience, personal
knowledge that are helpful to the jury.
iv. The Record
1. Both admitted and excluded evidence must be:
a. marked by court reported or courtroom deputy
b. identified by the sponsoring witness
c. predicated by the witness (Does this picture “fairly and
accurately” depict the scene of the accident?)
d. tendered to opposing counsel
e. formally offered to the court
f. support its admissibility against objection.
g. take affirmative steps to get admissibility ruling
h. take steps to have the exhibit communicated to the
g. Jury Argument
i. Draw conclusions, apply law to facts and value laden statements.
1. inconsistencies with evidence
2. inconsistencies with law
3. invective (criticizing plaintiff)
4. prejudice (categorizing the opposing party into a group to
prejudice jury against them)
h. Closing Statement
1. praise the jury
2. explain legal terms
3. answer the questions in light most favorable to your client
a. read question
b. translate question
c. marshal evidence and draw inferences
d. answer questions for the jury
e. emotional value after defendant’s closing
1. similar steps to plaintiff, but includes emotional value.
i. The Jury Charge
i. General verdict – one long question that rounds out hard edges with
instructions outlining the legal principles and extensive instructions.
ii. Special verdict – questions about each element help jury decide ultimate
facts. (jury decides with their heads not their hearts)
1. judge should reconcile the jury’s verdict if it conflicts with the
law to avoid retrying the case.
2. Judge has three options if jury’s verdict conflicts with the facts
or the laws:
a. Send the jury to further deliberate
b. Order for a New trial
c. Judgment on special verdicts
j. Trial without a Jury
i. Motion of recusal occurs when a party knows or suspects the court is
ii. The trial judge will make findings of fact for purposes of review in an
opinion or memorandum of decision.
XV. POST TRIAL MOTIONS AND TAKING THE CASE FROM JURY
a. Judgment as a Matter of Law
i. Motion made during trial (directed verdict) or after trial (judgment
notwithstanding the verdict)
ii. A court should render judgment as a matter of law when “a party has
been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that issue.”
1. The court should review all evidence in the record.
2. The court must draw all reasonable inferences in favor of the
nonmoving party and it may not make credibility determinations
or weigh the evidence.
3. The court must disregard all evidence favorable to the moving
party that the jury is not required to believe.
iii. If a party wants to make the motion after trial, he must first make the
motion during the trial.
iv. A motion during trial is a prerequisite to an appellate attack on the
sufficiency of the evidence to support the result.
v. ***The judge cannot weigh the evidence*** (the judge has not
discretion and the movant is either entitled or not)
b. Motion for New Trial
i. A judge may grant a new trial if the result or the process was
inconsistent with substantial justice.
ii. The purpose of a new trial is to start the process over again because the
current result reflects a possible miscarriage of justice. It is highly
iii. When to grant a new trial –
1. Judge must believe the jury’s verdict is against the “great
weight” of the evidence. (Judge must weigh evidence).
2. Trial or Pre-Trial error
3. Error in the Charge
4. Admittance of inadmissible evidence
5. Erroneous rulings during jury selection
6. Showing of newly discovered evidence
a. If the evidence could not have been discovered in due
time with reasonable diligence, and it would affect the
verdict, the judge can order a new trial.
7. Misconduct of Jurors or Attorneys
8. Damages or inadequacy of damages
a. Remittitur – reducing the damage amount in a separate
i. Conditional because the judge may order the
verdict to be set aside unless the plaintiff agrees
to a judgment for a lesser amount specified by
iv. The error must be objected to at the trial in order for the appellate court
to consider it.
v. Motion must be made within 10 days after the trial.
c. Motions and Relief from Judgments
i. Clerical errors can be cured at any time
ii. Relief from final judgment may be granted based on:
1. Mistake or Excusable neglect
2. Newly discoverable evidence, restrictions
3. Fraud or misconduct (1 yr. SOL for the first 3)
4. Satisfied, get a release
6. Other reason
iii. If a party fails to disclose some requested material (fraud), but newly
discoverable evidence will not give a relief from judgment if it does not
change the result.
a. Scope of Appellate Review: Final Judgment Rule
i. The Appellate Court may consider questions of law, but can only reverse
if error falls under the Avoidance Doctrines:
1. appellant shows error was harmful
2. the error was preserved during trial
3. the error has not been cured
4. the error is outside judge’s discretion (trial judge abused
ii. The Appellate Court may review facts if the judge made a decision about
the facts that is “clearly erroneous.”
1. TEST: If there are two plausible inferences that can be made the
judge’s choice between them cannot be clearly erroneous. If the
trial judge’s opinion is supported by the evidence, the appellate
court should not reverse. (similar to judgment as a matter of
b. FRAP – Federal Rules of Appellate Procedure
i. Rule 3: Notice - You have to name the judgment, court you’re appealing
from and court you’re appealing to. Notice is jurisdictional.
ii. Rule 44: Appeal must be filed within 30 days of motion for a new trial.
For good cause the Court of Appeals can offer a 30 day extension.
iii. Rule 7: Cost Bond - $500 bond must be filed with notice.
iv. Rule 8: Stay, supersedeas bond – supersedes the judgment. Must file
bond to prove you have the money.
v. Rule 10: Must file the record within 10 days of the notice of appeal
consisting of the transcription of the evidence made by the clerk.
vi. Rule 12: Docket Fee
vii. Rule 28: Briefs must include statement of jurisdiction, case etc.
viii. Rule 30: Appendix must include excerpts from the transcripts and papers
involved in the case.
ix. Rule 31 and 32: Appellate brief must be filed within 40 days of the
c. When can you appeal?
i. Only on a final judgment that is final as to all parties and all claims.
(Nothing is left for the trial court to adjudicate).
1. Rule 54(b): A partial judgment that disposes of the claim
2. Collateral order
3. 1292(a) makes certain non final judgments appealable by statute
4. “discretionary” appeals – appeal by certification – trial judge
wants the findings of a novel question that would advance the
determination of the suit if it were decided presently.
5. Mandamus – not an appeal, but an equitable remedy. Where the
facts are clear and the judge clearly abused his discretion.
d. SUPREME COURT
i. A petition is not likely to be granted by the SC.
1. Rule of Four – it only takes four members in order for them to
take the case.
ii. The court must want to hear the case and it must be of great importance.
1. The court has jurisdiction over conflicts between jurisdictions
2. Where there are intolerable conflicts between Courts of Appeals.
3. Between a Court of Appeals and a state court of last resort.
4. Systemic issues of federal importance that have not been
XVII. REMEDIES, JUDGMENTS AND THEIR ENFORCEMENT
a. Seizure: Attachment, Garnishment and Sequestration
i. Temporary relief at the beginning of the case.
ii. You may seize property if you have a property interest after a hearing.
iii. The possessor must be served proper notice
iv. If the party objects to the way notice is served then they can hold an
adversary hearing to decide the service issue.
v. A party has the right of a prompt post-seizure hearing decided by a
a. Sworn testimony by the creditor
b. Showing of specific facts
c. Conforming to narrow grounds authorizing the writ
d. Before a judicial officer
e. Supported by a bond posted by the creditor
f. Subject to an “immediate” post-seizure hearing on the
g. At which the creditor must prove entitlement to the writ
h. The debtor having a right to possession on posting
i. To damages if the writ is dissolved.
b. Temporary Restraining Order
i. Papers: Petition or complaint, Temporary Restraining Order, The
Restraining Order Bond and The Filing Fee
ii. Greasing the Skids
1. Call the District Clerk – give him estimate of when the papers
will be completed
2. Contact the Judge – inform him of the urgency and make sure
he’ll be around
3. Contact the Marshal or Sheriff
iii. Prepare the Papers
1. Bond – reimburses the opposing party if it is later decided the
state incurred damages when entering the injunction or its
decided the TRO was not erroneously given.
2. Facts – Hard, Specific and Sworn
3. The Petition or Complaint – names of the parties, the factual
allegations including irreparable injury, the prayer & affidavit.
4. The Restraining Order – define injury, why it is irreparable, state
why the order was granted without notice, provide for the
posting of the bond as a prerequisite to the clerk’s issuing writ of
injunction, specifically set out the act or acts to be prohibited,
state that the order is binding, set date for a hearing.
iv. Hearing, Filing and Follow-Up
i. Compensatory – actual damages
1. Economic damages must be made with “reasonable certainty”
a. Condition before
b. Condition after
3. If you don’t establish all the elements, a judgment as a matter of
law will be entered against you.
ii. Punitive – Recoverable of proof of gross negligence
d. Equitable Remedies
i. Temporary Injunctions
1. Must weigh the Plaintiff’s injury if the injunction does not go
through and the Defendant’s injury is the injunction goes
2. Plaintiff’s chances of winning the case on the merits
3. Public Interest
4. Posner’s rule: Grant Injunction if P*Hp>(1-P)*Hd
ii. Specific Performance is available when the performance required by a
contract is so unique that damages ill not provide an adequate remedy, so
that equity is justified in intervening to order the performance.
iii. Equitable Restitution – “restoration” of something to plaintiff
1. Replevin – recovery of a chattel
2. General Assumpsit – restoration of money paid by mistake
iv. Constructive Trusts – creates a lien on property that has been wrongfully
taken from the plaintiff where the holder of the property is not
responsible for damages. Plaintiff can follow the prop.
v. Other Equitable Relief
1. Resulting Trusts
2. Equitable Lien
8. Institutional Reform
e. Declaratory Judgments
i. Statutory – Necessary to obtain a court adjudication of your rights prior
to making a claim. (common in insurance claims)
f. Attorney’s Fees, Interest and Costs
i. Unless the claim provides for it there is no right to attorney’s fees unless
awarded as a sanction during discovery.
ii. In Texas is you prevail in a K claim you may recovery attorney’s fees.
iii. Under a Civil Rights Claim a person may recover “reasonable”
iv. Consider: result, amount of time spent, amount of damages awarded.
v. Lodestar equation: hours*reasonable fee=reasonable cost
g. Pre-Judgment Interest
i. Sometimes large party of claim and very important in extracting
settlements. Incentive for defendant to settle early on.
h. Enforcement Devices
i. Execution under TX common law (usually a last resort)
1. Sheriff must advertise the judgments against the land
2. Must sell prop. That is not disproportionate to the value of the
3. If the prop. Is capable of division, then it must be subdivided
4. Sheriff must follow the order of sale designated by the debtor
5. Exemptions (clothes, home and other necessities)
ii. Judgment Liens – liens on someone’s property to secure a judgment
iii. Post-Judgment Garnishment – taking the judgment debtor’s wages to
secure payment of the judgment. (up to 25% of the earnings)
iv. Turnover Orders
1. Texas statute provides that if a judgment debtor owns property,
including present or future rights to property that
a. cannot readily be attached or levied upon by ordinary
legal process and
b. is not exempt from attachment, execution, or seizure for
the satisfaction of liabilities and
c. the judgment creditor is entitled to aid from a court of
appropriate jurisdiction through injunction or the means
to reach property to obtain satisfaction on the judgment.
v. Receivership – court appoints an entity to collect the assets of the
2. A receiver may be appointed in proceedings in aid of execution
when an execution has been returned unsatisfied, or when the
judgment debtor refuses to apply his property in satisfaction of
vi. Discovery in Aid and Enforcement
1. Discovery devices are used to find out the extent of a debtor’s
vii. Contempt and Arrest
1. Civil Contempt – seeks to compel or coerce compliance with
orders of the court in the future
2. Criminal Contempt
a. Direct: committed in the presence of the judge
b. Indirect: no observed by the judge
i. Charge requires due process and proper notice to
viii. Interstate Enforcement
XVIII. ALTERNATIVE METHODS OF DISPUTE RESOLUTION
a. Cases go to trial when parties grossly overestimate or underestimate their
b. Our system favors settlements because of the vast number of lawsuits that are
c. Arbitration – a contractual proceeding by which the parties submit their dispute
to a 3rd party decision maker (often one with special expertise in the subject
matter of the dispute). Usually Binding
i. Arguments for:
1. Saves time and energy
3. Evidence and Expertise
4. Cost and Reliability
5. Enlarged pie – Arbitor is not bough by law so they can increases
ii. Arguments against Arbitration and for Litigation:
1. Traditional, familiar
2. Jury? Selection?
3. Concern Regarding Bias?
4. Bigger damages?
5. Costs can shift to the defendant
6. Relative Satisfaction
iii. Binding Arbitration – Each party appoints an arbiter and those arbiters
then appoint a 3rd arbiter, the “swingman.” The swingman acts as the
iv. A suit to confirm judgment takes place when the parties take the result of
the arbitration to the court in exchange for a judgment.
i. A judge can order mediation at any time, but typically ordered prior to
ii. Involves a 3rd party who acts as a facilitator rather than as a judge or
arbiter, in an effort to assist the parties in reaching a voluntary resolution.
iii. Client must be present and peak for himself
iv. The mediator caucuses. He plays down your case in confidentiality.
Then he goes to the other side and does the same.
e. Court-Annexed Arbitration
i. If the amount in controversy is less than $150, the parties must go to
ii. Present case based on hearsay
iii. If a party decides to go after trial and gets less than he was given in
arbitration, he must pay the court costs.
iv. Advisory opinion is not admissible in trial
f. Traditional Negotiation – Compromise
1. Firm, fair, offer: “Boulwareism”
2. Unreasonable 1st offer
3. Conceal settlement point
4. Make the other party present the first reasonable offer
5. Pretend your position is reasonable
6. Argue the Merits
7. Blame the client
8. Reverse Psychology
9. Control the Agenda
11. Bargaining Chip
13. Collateral Consequences
14. Whipsaw (make 2 parties bargain against each other) Bidding
war between joint tortfeasors.
15. Focal Point
19. Feigned Emotion
g. Private Judging
i. Some states have “rent-a-judge” statutes, which enable the parties to hire
a judge for their particular dispute, who then presides over a traditional
trial. The parties gain flexibility in the timing of the trial.
h. Neutral Expert Fact Finding
i. The parties or the court may hire an expert to conduct an investigation of
the matter in dispute. Investigation can be used as a tool in settlement.
May be admissible in trial.
i. Parties set time limits upon their presentations, receive suggestions from
a neutral advisor and attempt to settle
ii. Complex litigation involving complex law and facts
j. Summary Jury Trials
i. Variant on the mini-trial using advisory juries
ii. Law is clear but the facts are not
iii. Result can be involuntarily imposed
k. Screening Panels – presentation before a panel or administrative agency
l. Settlement Conference – Pretrial conference ordered by the judge.
i. Who? Whom? What? Who releases whom from what?
ii. Mutual: both parties agree that the matter is released. Plaintiff is
released as well so that counterclaims can’t be brought later.
1. General Release – releases every claim that existed whether or
not you knew about it.
2. Specific Release – releases a specific claim
3. Unilateral Release – releases only the defendant
iii. The release must be specific so that all parties are named and all claims
iv. Circular Indemnity is used to protect the defendant. If the defendant is
sued for indemnity by a 3rd party, he can sue the plaintiff based on the
v. Release by a minor may be nullified.
1. File a friendly suit so that the court will approve the settlement.
They will set up a trust for the minor so that the parents cannot
take advantage of the minor.
1. To prevent the release from being set aside due to fraud, include
a warranty where the plaintiff admits he agreed on the release
without consideration of an influence on the part of the
vii. Keep ‘em Honest – DO NOT RELY on information from the other party.
a. Res Judicata – claim preclusion
i. Previous final judgment
ii. If two cases are going along parallel, neither is preclusive to the other
until one gets a final judgment
iii. Same parties or their privies or predecessors
iv. Same claim or same facts
1. some courts include closely related claims
2. some courts include same transaction
v. Example: You think you are owed more money than the judgment
awarded. You file a claim. The other side will assert a res judicata
b. Collateral Estoppel – issue preclusion
i. Previous final judgment
ii. Between the same parties including parties in privity or predecessors
iii. Deciding an issue also in this case OR
iv. Which is essential to decide within both cases
v. Example: Promissory notes decides payment 1 and provides for payment
2. Defendant defaults on first payments and Plaintiff sues on 1st
payment. Defendant claims lack of consideration. The plaintiff wins.
Then the plaintiff sues for 2nd payment. Defendant claims lack of
consideration. Plaintiff pleads collateral estoppel (that fact has already