Page 1 of 37 Pleading I. Pleading Generally A. Objectives of π & (during pleading) 1. π a. Get case past pleading b. Get case into discovery, etc. c. Give sufficient notice 2. a. Get case thrown out b. Prove lack of claim c. Prove no cause of action B. All transactions during Federal Civil cases use Federal Rules of Civil Procedure [FRCP] 1. Power for judiciary to establish rules comes from Rules Enabling Act 2. USC Chapter 131 §2072 Rule 8: General Rules for Pleading (a) Claims for Relief must contain: (1) A short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) A short and plain statement of the claim showing that the pleader is entitled to relief, and (3) A demand for judgment for the relief the pleader seeks. (b) Defenses; Form of Denials Party must state defenses to each claim Shall admit or deny each averment If the party is not knowledgeable enough to form a belief, this must be stated (=denial) Partial denial is authorized if done clearly (c) Affirmative Defenses A party may set forth affirmatively: accord & satisfaction arbitration & award assumption of risk contributory negligence discharge in bankruptcy duress estoppel failure of consideration fraud illegality injury by fellow servant laches license payment release res judicata statute of frauds statute of limitations waiver any other matter constituting an affirmative defense (avoidance) 1. When a party erroneously misconstrues defense v. counterclaim, the court will fix the error. (d) Effect of Failure to Deny Pleadings, except as to the amount of damage, are admitted if they are not denied. No response is considered a denial or avoidance (e) Pleading to Be Concise and Direct; Consistency (1) Each averment must be simple, concise, and direct. There is no requirement for technical forms of pleadings or motions. (2) Multiple claims/defenses may set forth multiple claims/defenses insufficiency of one claim does not nullify sufficiency of another may set forth as many claims/defenses as desired, notwithstanding ♦ legal, ♦ equitable, ♦ maritime grounds, or ♦ consistency (f) Construction of Pleadings: All pleadings shall be so construed as to do substantial justice. Pleadings Complaint Pre-Answer Motions Answer to Complaint Counterclaim Cross-Claim Reply to Counterclaim Page 2 of 37 C. Documents in a Motion 1. The motion itself – a request for the specific relief sought 2. Notice of the motion 3. If the motion question requires or permits affidavits setting forth any factual information necessary for granting the motion, they will be included 4. Memorandum of law explaining, with reference to supporting authorities, the legal basis for the motion. D. Types of Pleading Allowed (forms of motions) [FRCP 7(a)] 1. A Complaint 2. An Answer 3. Counterclaim (Respondent claims against π) /Reply to a Counterclaim 4. Cross-Claim (One respondent makes a claim against another respondent) /Answer to a Cross-Claim 5. A Third-Party Complaint (if a person who was not an original party is summoned under Rule 14) 6. A Third-Party Answer (if a third-party complaint is served) 7. No other pleading is allowed, except if: a. the court orders a reply to an answer b. the court orders a third-party answer Responsibilities During Pleading Burden of pleading Burden of production Burden of persuasion Page 3 of 37 II. The Complaint A. Definition: initial pleading in a lawsuit, filed by π B. Establishing a legal claim is the first step in a civil suit. A. Proof does not come until discovery & trial, while allegations are made during the claim. C. Elements [FRCP 8(a)] 1. Jurisdiction a. A short and plain statement of grounds for court’s jurisdiction b. A body of law (Department of Transportation v. Superior Court) 2. Statement of the claim a. A set of facts that fall under a body of law (Haddle v. Garrison) b. A short and plain statement of the claim, showing that the π is entitled to relief c. Plead prima facie case 3. Claim for Relief: A demand for judgment for the relief D. Special Matters (Possible Heightened Pleading Requirement) 1. Listed [FRCP 9] [FRCP 9(a)] Legal capacity to sue [FRCP 9(b)] Fraud/Mistake [FRCP 9(c)] Denial of performance/condition precedent [FRCP 9(d)] Official Document/Act [FRCP 9(e)] Judgment [FRCP 9(f)] Material facts of time and place [FRCP 9(g)] Special Damages [FRCP 9(h)] Admiralty & Maritime Claims 2. Fraud/Mistake [FRCP 9(b)] a. Delineated by statute b. Pleading Special Matters(Fraud/Mistake) i. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. ii. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (Olsen v. Pratt & Whitney -Fraud claim required higher level of specificity under FRCP 9(b)) c. Requires more specificity in pleading, because i. π: doesn’t know complete details until discovery ii. Fraud is a serious tort with potentially severe punitive damages (Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit – Officers not protected by FRCP 9(b); protection of §1983 does not protect municipalities) 3. Civil Rights Claims a. Delineated by Case Law b. 42 U.S.C. §1983 permits a suit against those who act “under color of law” (in some official or quasi-official capacity) to deprive persons of constitutional rights. c. Supreme Court has said: i. that such officials are liable if their actions or orders violate constitutional rights but ii. that they enjoy a “qualified immunity” if those actions took place under a reasonable misapprehension of the law d. s are in a better position than πs to know the basis of their decisions. e. Thus, if s are going to defend their conduct based on a reasonable belief in the lawfulness of their conduct, they have to allege good faith as an affirmative defense (Gomez v. Toledo – Policeman fired because of testimony. Civil Rights §1983 requires FRCP 8(c) affirmative defense plea. Does not heighten 8(a) short and plain statement) Bodies of Law -contracts, -civil rights, -negligence, -battery, -etc. Page 4 of 37 III. Ethical Limitations on All Pleading A. Satellite litigation: Rule 11 proceedings B. Rule 11 amended in 1983, 1993 C. Restricts frivolous pleadings (Religious Technology Center v. Gerbode – D filed suit because of bad blood. Frivolous claim & sanctions awarded under FRCP 11) Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions a. Every pleading, motion, and other paper shall be signed by at least one attorney of record or the unrepresented party. b. Representations to Court: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (applicable law does not exist) (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (applicable/necessary facts do not exist) (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. c. Sanctions: If subsection (b) is violated, the attorneys, law firms, or parties that have violated subdivision (b) can be sanctioned. (1) How Intitiated (a) By Motion as provided in Rule 5 after waiting at least 21 days (or such other period as the court prescribes) for deficiency to be corrected. Law firm held responsible. (b) On Court’s Initiative: Court may describe the content that violates Rule 11(b) and direct the violator to show cause (2) Nature of Sanction; Limitations The sanction may consist of, or include, ♦ directives of nonmonetary nature, ♦ an order to pay a penalty into court, ♦ if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation. Monetary sanctions not applicable to represented party under Rule 11(b)(2) cannot expect parties to be responsible for the law not permitted against the court, unless the court issues a show cause order prior to voluntary dismissal or settlement (3) Order: court must describe violation and basis for sanction. d. Inapplicability to Discovery: Rule 11(a-c) does not apply during disclosures and discovery requests, responses, objections, and motions IAW Rules 26-37. Page 5 of 37 D. “Safe-harbor” provision: Rule 11(c)(1)(A) 1. A period of time, during which Rule 11 cannot be considered violated 2. FRCP 11(c)(1)(A) requires the party moving for sanctions to serve the motion, and wait 21 days to file the motion, thereby giving the recipient of the motion 21 days to withdraw or correct the frivolous paper before the motion for sanctions is filed a. “Serve π” – notify π of contention of violation of Rule 11(b) b. After 21 days, file a motion if contended violation has not been withdrawn/appropriately corrected c. Judge rules (Business Guides v. Chromatic Communications Enterprises – did not conduct proper investigation & was sanctioned for failure to plead in good faith after reasonable investigation under FRCP 11(b)(3).) E. Non-monetary Sanctions 1. striking the offending paper 2. issuing an admonition 3. reprimand 4. censure 5. requiring participation in seminars or other educational programs 6. ordering a fine payable to the court 7. referring the matter to disciplinary authorities Page 6 of 37 IV. Responding to the Complaint A. Pre-Answer Motions 1. can do nothing. If he does, he enters default and a default judgment is ruled. [FRCP 8(d)] 2. Validity of the complaint [FRCP 12(b)] a. Can be argued by affidavit b. Can eliminate complexities of a trial c. Intended to get case dismissed d. Challenge validity of the complaint, based on: [FRCP 12(b)(1)] Lack of jurisdiction over subject matter [FRCP 12(b)(2)] Lack of jurisdiction over the person [FRCP 12(b)(3)] Improper venue [FRCP 12(b)(4)] Insufficiency of process [FRCP 12(b)(5)] Insufficiency of service of process [FRCP 12(b)(6)] Failure to state a claim upon which relief can be granted [FRCP 12(b)(7)] Failure to join a necessary party [FRCP 19] 3. Motions for Dismissal a. Failure to state facts that lead to a cause of action b. Failure to establish jurisdiction of an applicable body of law Jurisdiction Guidelines State [Demurrer] A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the π to state a claim for relief and for the to frame an answer. In most jurisdictions, such a pleading is now termed a motion to dismiss, but the demurrer is still used in a few states, including California, Nebraska, and Pennsylvania. Demurrer ruling at discretion of judge for leave to amend 1. π did state sufficient cause of action 2. Court can give leave to amend, with qualifications 3. Opposite of demurrer is answer Federal [FRCP 12(b)(6)] If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for “failure to state a claim upon which relief can be granted,” matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. In determining the merits of a 12(b)(6) motion, the court must assume that all of the factual allegations of the complaint are true. If complaint is dismissed IAW FRCP 12(b)(6), court will usually give leave to amend 4. Motion for more definite statement [FRCP 12(e)] (disfavored because of ‘short plain statement’) a. Party can ask for clarification. b. Occurs when complaint is so “vague or ambiguous” that a response is impossible c. 10 days to respond, or court can strike pleading or make a justifiable order d. Alternatives to finding out more specifics: i. Discovery ii. FRCP 12(b)(6) 5. Motion to strike [FRCP 12(f)] a. insufficient defense b. redundant c. immaterial d. impertinent e. scandalous Page 7 of 37 Rule 12: Defenses and Objections – When and How Presented – by Pleading or Motion – Motion for Judgment on the Pleadings (a) When Presented (1) Unless U.S. statute differs, (A) Within 20 days of service of summons & complaint (B) If waived (Rule 4(d)), then within 60 days if domestic/90 days if outside US jurisdiction (2) Answer/Reply shall be served within 20 days (3) The United States or officer/agency shall serve an answer to the complaint/cross-claim/reply to a counterclaim within 60 days after US attorney has been served with pleading (4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows: (A) if court denies or postpones disposition until trial on the merits, responsive pleading served within 10 days of notice (B) if court grants a motion for definite statement, responsive pleading served within 10 days of service (b) How Presented: Every defense must be in the responsive pleading, except the following defenses which may be made by motion: (1-7: see above) (c) Motion for Judgment on the Pleadings (after pleadings are closed, any party may so move) (d) Preliminary Hearings (Rule 12(b)(1-7)) happens at preliminary hearings) (e) More definite statement (see above) (f) Motion to Strike (see above) (g) Consolidation of Defenses in Motion Consolidate all Rule 12 motions at once. Failure to consolidate motions is unacceptable, except with reference to Rule 12(h)(2) 6. Waiver or Preservation of Certain Defenses [FRCP 12(h)] a. The following defenses are waived: (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule, nor included in a responsive pleading or an amendment (IAW Rule 15(a)) [FRCP 12(b)(2)] lack of jurisdiction over the person [FRCP 12(b)(3)] improper venue [FRCP 12(b)(4)] insufficiency of process, or [FRCP 12(b)(5)] insufficiency of service of process must be made when filing a motion or an answer b. The following may be made in any pleading or ordered under Rule 7(a) [FRCP 12(b)(1)] defense of lack of jurisdiction of the subject matter [FRCP 12(b)(6)] defense of failure to state a claim upon which relief can be granted [FRCP 12(b)(7)] defense of failure to join a party indispensable under Rule 19 [FRCP 12(b)(6)] an objection to failure to state a legal defense to a claim Page 8 of 37 B. Answer 1. General a. Response to π’s complaint b. Answer – Complaint; Respond – Counterclaim c. must state in ‘short and plain’ terms his defenses to each averment d. must admit or deny each count of π’s complaint, specifically [FRCP 8(d)] e. May be pleaded in the alternative (e.g., I didn’t do it, but if I did, it was because …) [FRCP 8(e)(2)] 2. Denial a. Formerly known as ‘Traverse’ b. Kinds of denial i. General denial: deny every allegation in complaint (unsafe) ii. Specific denial: deny a particular paragraph or count of the complaint iii. Qualified denial: deny a particular portion of a particular allegation iv. Denial of knowledge or information: deny knowing enough to form a belief on the truth of complaint (must be in good faith) v. Denial based on information and belief: “I’m not sure, but I believe the allegation is false.” (Used by large corporate s) c. may only deny those allegations that he actually disputes [FRCP 8(b)] d. Any allegation that is not denied is deemed admitted [FRCP 8(d)] 3. Affirmative Defense [FRCP 8(c)] a. Plea in confession and avoidance b. Must affirmatively plead facts particularly within the ’s knowledge c. Most Common i. Contributory negligence ii. Fraud iii. Res Judica (the issue has already been adjudicated) iv. Statute of limitations v. Illegality d. Must plead affirmatively “any other matter constituting an avoidance or affirmative defense.” e. Must be made prior to trial f. Cannot be averred during trial g. Doctrine of Equitable Estoppel i. The doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right which he otherwise would have had. ii. Helps ensure properly affirmatively defends or denies (Layman v. Southwestern Bell Telephone Co. – Telephone easement caused damage; however, general denial during pleading prohibited affirmative defense at trial.) C. Reply [FRCP 7(a)] 1. A reply is only required when the ’s answer contains a counterclaim a. served within 20 days after service of answer, or b. within 20 days of a court order (if ordered by the court) 2. If the answer contains an affirmative defense, disguised as a counterclaim, no reply is required 3. If the answer contains allegations, disguised as affirmative defenses, no reply is required 4. Lawyers can reply to all new matters to avoid inadvertent admission. 5. Court can order a reply on its own motion or that of a party D. Amendment of the Pleadings [FRCP 15] 1. Amendment as of Right [FRCP 15(a)] a. Timelines: i. Complaint – at any time before the answer is served (a motion is not an answer) ii. Answer (1) Once within 20 days after service (2) If answer has a counterclaim, may amend the answer up until service of the reply b. May amend once at any time before responsive pleading is served c. If responsive pleading is not applicable and action has not been placed on trial calendar, party may amend within 20 days after service d. Otherwise, may only amend with permission of court or adverse party e. Response to amended pleading within time remaining, or 10 days, whichever is longer Page 9 of 37 (Beeck v. Acquaslide -π sued wrong ; answered wrong. Will amendment of pleading cause prejudice? π not allowed to change) 2. Amendment by Leave of Court [FRCP 15(a)] a. Court gives ‘leave to amend’ freely, provided i. The would-be amender has a good reason for not getting it right the first time; (just) & ii. Allowing the change now should not hurt the other side too much (prejudice) b. Often follows a 12(b) motion c. Court almost always grants 3. Relation Back of Amendments [FRCP 15(c)(3)] (Zielinski v. Philadelphia Piers, Inc. – denied everything about forklift, but found out it was not theirs. Forced to abide by initial pleading [FRCP 15(c) not yet enacted]) a. A single “conduct, transaction or occurrence” i. If what is amended is simply the π’s claim or theory, courts will grant leave to amend ii. If the underlying facts are materially different, from the original complaint’s allegations, court will not grant leave to amend (Moore v. Baker – π sues for conduct prior to surgery. Not allowed to amend to include conduct before and after surgery [same transaction, occurrence, event]) b. When action is deemed “commenced” i. In federal cases, the action is commenced on the date the complaint is filed [FRCP 3] ii. In diversity cases, the action is commenced based on state law (some states commence on the date of service) c. Change of party i. The amendment has to cover the “same transaction or occurrence” as the original pleading ii. The party to be brought in by the amendment must have received actual notice of the action before the end of the 120 days following original service iii. Before the end of the 120 days, the new party knew or should have known that “but for a mistake concerning the identity of the proper party, the action would have been brought against” him (Bonerb v. Richard J Caron Foundation – Injured rehab patient injured playing b-ball. Same transaction, occurrence & P should have already been on notice ∴ allowed to amend to relate back) Rule 15(c): Amended and Supplemental Pleadings (Relation Back of Amendments) An amendment of a pleading relates back to the date of the original pleading when: (1) the law that provides the statute of limitations permits relation back, or (2) the claim is congruent or grew from the conduct, transaction, or event set forth in the original pleading, or (3) the amendment changes the party against whom the claim is filed if 15(c) is satisfied and it happens within the time period of 4(m) for service of summons and complaint, and the party to be included in the amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party V. Time for Various Pleadings [FRCP 12(a)] A. Complaint 1. Filing usually occurs prior to service 2. Service must occur within 120 days [FRCP 4(m)] B. Answer: filed & served within 20 days of service of pleading, unless 1. Waiver of formal service [FRCP 4(d)(3)] a. 60 days if domestic b. 90 days if outside of US jurisdiction 2. Different state rule: If is in a different state, the time in that state controls [FRCP 4(d)(3)] 3. Rule 12 motion: If makes a Rule 12 motion against the complaint and loses, he has 10 days, after the court decides, to answer [FRCP 12(a)(4)(A)] C. Reply to Counterclaim: If the answer contains a counterclaim, π must serve his reply within 20 days after service of the answer. [FRCP 12(a)(2) Page 10 of 37 Discovery I. General A. Discovery ends lawsuits for 2 reasons: 1. Discovery produces information about the merits of the lawsuit and permits parties to make informed judgments about the strength of their and their opponent’s positions. 2. Because discovery costs time and money, it enables one of the parties to wear the other down – or both sides to wear each other down – without regard to the merits of the case. B. Two-Stage Discovery Process: 1. Disclosure: Parties come forward with certain basic information [FRCP 26(a)] 2. Discovery of Additional Information: Parties may ask each other for additional information. Must disclose “any matter, not privileged, which is relevant” [FRCP 26(b)(1)] C. Forms of Discovery: 1. Automatic Disclosure [FRCP 26(a)(1)] 2. Depositions, taken from both written and oral questions (primarily, oral questioning) 3. Interrogatories addressed to a party (written questions sent by one side to the other with expectation of answer) 4. Requests to inspect documents or property 5. Requests for admission of facts 6. Requests for physical or mental examination D. Discovery in an Adversary System 1. The discovery process requires the opposing counsel to cooperate with each other 2. Mutual knowledge of all the facts gathered by both parties is essential to proper litigation 3. Either party may compel the other to disclose facts he has in his possession 4. Production of some material may be justified where the witnesses are no longer available or cannot be reached without difficulty 5. Contention interrogatory – one party seeks to discover the facts that underlie broad allegations 6. Attorney – client privilege does not always extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation 7. Professional rules prohibit lawyers from communicating directly with a party represented by another lawyer, unless that lawyer consents Discovery -Disclosure -Deposition -Interrogatories -Inspect Documents/Property -Admission -Physical/Mental Examination Page 11 of 37 Rule 26: General Provisions Governing Discovery; Duty of Disclosure (a) Required Disclosures; Methods to Discover Additional Matter (1) Initial Disclosures – must provide within 10 days after the meeting of the parties (A) Name, Address, # of potential witnesses and what they know (B) Documents, data, and ‘things’ (C) Computation of Damages (D) Insurance information (new as of 1993) (2) Disclosure of Expert Testimony (A) Identity (B) Information on testimony and history of expert (C) Timelines for submission -at least 90 days before trial or date case is supposed to be ready -within 30 days if expert is to rebut other party’s expert (3) Pretrial Disclosures – at least 30 days before trial (A) Name, address, # of definite & potential witnesses (B) Designation of deposition witnesses (C) Identification of exhibits (4) Form of Disclosures; Filing – written, signed, served, filed with court (5) Methods to Discover Additional Matter -depositions upon oral examination or written questions -written interrogatories -production of documents or things -permission to enter upon land -physical and mental exam -quests for admission (b) Discovery Scope and Limits (1) In General (2) Limitations: Court may limit if -too much -too late -too expensive (3) Trial Preparation: Materials (4) Trial Preparation: Experts (A) May depose (B) May discover more from expert (C) Experts get paid (5) Claims of Privilege or Protection of Trial Preparation Materials: may claim, but must prove (c) Protective Orders – Court may encourage protection of witness by requesting (1) that disclosure or discovery doesn’t happen (2) terms & conditions of disclosure or discovery (3) different method (4) don’t ask certain questions (5) privacy (6) only open seal @court’s discretion (7) no trade secrets (8) can file simultaneously – only court opens (d) Timing and Sequence of Discovery: doesn’t matter (e) Supplementation of Disclosures and Responses – must disclose if so ordered, if incorrect or incomplete (f) Meeting of Parties; Planning for Discovery – must occur ASAP or at least 14 days before scheduling (1) changes in timing, form, or requirement for disclosure (2) subjects & time-limits /phases (3) changes to limitations (4) any other rules (g) Signing of Disclosures, Requests, Responses, and Objections (Discovery equivalent of [FRCP 11] in Pleading) Page 12 of 37 II. Scope of Discovery A. Generally: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action” [FRCP 26(b)(1)] 1. Discovery inherently conflicts with privacy 2. Discovery aims to prevent surprise at trial and ensure cases will be resolved based on their merits 3. Methods: a. Asking questions b. Examining documents, physical objects, persons c. Admit contentions (Steffan v. Cheney – Homosexual midshipan’s conduct deemed outside scope of questioning when his homosexuality alone was in question) B. Relevance 1. Logically connected and tending to prove or disprove a matter in issue. 2. Information on a party’s financial standing is not “relevant to the subject matter”: (except WRT determining level of punishment maintainable) a. ability to afford litigation b. ability to pay damages (Blank v. Sullivan & Cromwell – Female lawyers wanted interrogatories on firm’s employment history. Granted b/c relevant.) C. Privilege: 1. Can be totally independent of relevance 2. Privileges typically block information from a particular source; they are not meant to block the underlying facts 3. Attorney-Client privilege a. protects communication between lawyers and clients concerning the matters the lawyer is handling for the client (What did you tell your lawyer about how fast you were driving?) b. does not prevent discovering underlying facts (How fast were you driving?) D. Trial Preparation: Materials [FRCP 26(b)(3)] 1. Party must: a. Have substantial need of the materials in preparation of the parties case b. Be unable without undue hardship to obtain the equivalent of materials by other means 2. Courts protect: a. mental impressions b. conclusions c. opinions d. legal theories of attorney or other representative of a party concerning the litigation (Hickman v. Taylor – Attorney not required to disclose his work product) 3. A person who is not a party can also acquire a statement concerning the action [FRCP 26(b)(3)] E. Trial Preparation: Expert Information [FRCP 26(b)(4)] 1. Testifying experts must submit to pretrial deposition 2. Opinions of non-testifying experts (consulting experts) may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means (except when ordered under FRCP 35) 3. There is a difference in treatment of a fact witness and expert witness 4. Experts testify to causes of events by applying special knowledge to the evidence 5. First, must establish they are an expert and expertise is relevant 6. [FRCP 26(a)(2)] a. Initial disclosures include information about experts to testify and the basis for their testimony b. From an expert, the adversary must receive a “written report prepared and signed by the witness containing a complete statement of all opinions to be expressed and reasons therefor” 7. Experts get paid [FRCP 26(b)(4)(C)] Common Privileges -attorney -client -doctor -patient -psychotherapist -patient Page 13 of 37 III. Methods of Discovery A. Automatic Disclosure [FRCP 26(a)(1)] 1. What must be disclosed? a. Name, Address, # of potential witnesses and what they know b. Documents, data, and ‘things’ c. Computation of Damages d. Insurance information (new as of 1993) 2. Pretrial disclosure -At least 30 days before trial 3. Within 14 days after initial disclosure, adversary may object to use of the depositions at trial and to admissibility of disclosed exhibits. B. Depositions, taken from both written and oral questions 1. Non-parties may be subpoenaed to respond to depositions 2. Attributes of deposition a. No more than 10 depositions and only depose a person one time unless courtt permission b. Force witness to take a position c. Expensive d. Answer questions under oath e. Utilizes a subpoena to depose f. Can be conducted in attorney’s office g. Requires some method of recording 3. Objections during oral examination a. [FRCP 30(d)(1)] A party may instruct a deponent not to answer only when i. necessary to preserve a privilege, ii. to enforce a limitation on evidence directed by the court, or iii. to present a motion under [FRCP 30(d)(3)] b. [FRCP 30(d)(3)] On motion of a party or of the deponent, the court may order the officer conducting the examination to cease from taking the deposition, or limit the scope and manner IAW [FRCP 26(c)] (protection) 4. Expert witnesses [FRCP 26(b)(4)] a. Parties hire experts to analyze the case b. Experts can testify to the inferences one can draw about causes of an event by applying their special knowledge to the evidence c. Party must establish the he is an expert and that expertise is relevant d. Special difficulties of conducting cross-examination of an expert i. need a prior opportunity to depose the expert ii. need access to the reports and documents on which he bases his opinion e. Must disclose information about experts who testify and a written report of all opinions to be expressed and reasons [FRCP 26(a)(2)] f. Experts must submit to pretrial deposition [FRCP 26(a)(4)] g. Only expert witnesses can testify as to their opinion. Fact witnesses can only testify as to matters of fact. C. Interrogatories addressed to a party [FRCP 33] 1. Attributes: a. cheaper b. less effective c. no follow-up questions d. written list of questions e. sent only to a party (not a witness) 2. Available, automatically, up to 25, without leave of court [FRCP 33(a)] 3. Extension of limit possible IAW [FRCP 26(b)(2)] 4. May make objections IAW [FRCP 37(a)] 5. Parties may be ordered to respond to interrogatories (Chudasama v. Mazda – DC judge didn’t referee; π’s unduly burdensome or expensive discovery request allowed to be sanctioned for failing to meet time requirement of order) Types of Disclosure Initial Disclosure Expert Testimony Pretrial Disclosure Forms of Depositions -Oral questions -Written questions -Transcribed testimony by a court reporter -Follow up questions Page 14 of 37 D. Requests to inspect documents or property [FRCP 34] 1. Frequently relate to issues of damages 2. Producing party will organize and label documents within categories [FRCP 34(b)] 3. Must permit entry upon land within the scope of [FRCP 26(b)] 4. No limit to number of document requests E. Requests for admission of facts [FRCP 36] 1. Used to eliminate undisputed matters 2. Any admission made by a party during discovery is for the purpose of the pending action only. 3. It may not be used against the party in any other proceeding (only applies to discovery). 4. Typically, admission is of matters of fact, not at the core of the dispute 5. No requirement to admit matters of fact to be disputed at trial during discovery 6. Failure to admit, without later presenting a defense, can result in sanctions. (Marchand v. Mercy Medical – Dr. did not admit malpractice, but made no defense. Fined) F. Requests for physical or mental examination [FRCP 35] 1. Requirements [FRCP 35(a)] a. The mental or physical condition must be “in controversy” b. The party seeking such discovery must show “good cause” for examination 2. Applies to any party or a person in the custody or legal control of a party 4. Opponents must disclose results of respective exams 5. Requires that the person to be examined be a party to the action, or a person in the custody or under the legal control of a party 6. Item for examination must be in controversy and in good cause 7. π and have precisely the same right to obtain a court order for physical or mental examination 8. Problem – could lead to doctor's going on a fishing expedition to find something wrong (Schagenhauf v. Holder – Cross-Claimant granted examinations of party whose condition was in controversy after a showing of good cause) IV. Discovery and Privacy A. Protects from discovery of unprivileged, relevant matters B. [FRCP 26(c)] gives a judge the power to protect a party or person from: 1. annoyance, 2. embarrassment, 3. oppression, or 4. undue burden or expense (Stalnaker v. Kmart – FRCP 26(c) prevented non-party witnesses from being questioned on sexual conduct outside of scope) C. Protective Orders: The court may make an order to protect a party, such as: [FRCP 26(c)(1)] that disclosure or discovery doesn’t happen [FRCP 26(c)(2)] terms & conditions of disclosure or discovery [FRCP 26(c)(3)] different method [FRCP 26(c)(4)] don’t ask certain questions [FRCP 26(c)(5)] privacy [FRCP 26(c)(6)] only open seal @court’s discretion [FRCP 26(c)(7)] no trade secrets [FRCP 26(c)(8)] can file simultaneously – only court opens D. Done in privacy of judge’s chambers, with motion to seal E. Party seeking protective order has burden to show good cause for it [FRCP 26(c)] F. A frequent reason for protective orders is to prevent discovery from 1 case from being available in another Must Produce writings, drawings graphs charts photographs phono-records other data compilations from which information can be obtained Must Specify time place manner conditions scope of the examination person or persons examining Page 15 of 37 V. Discovery Abuses A. Ensuring Compliance and Controlling Abuse of Discovery 1. Judges become involved only when the system breaks down a. motion for protective order, b. request to compel discovery, or c. a motion for sanctions 2. Interrogatories and Document Productions a. Send lengthy questions to psychologically or economically harass an opposing party b. Adversaries first impulse is to construe all inquiries and requests as narrowly as possible c. Parties can bury significant documents in mounds of irrelevant materials 3. Depositions (Utilize numerous depositions to prolong examination for extended periods of time) B. Types 1. Too Little (stonewalling) – one party refuses or resists appropriate requests for discovery 2. Too Much – one party seeks more discovery than the case justifies to discourage or hamper the opponent 3. Mismatched – two parties have significantly unequal wealth; the richer party, even if it does not abuse discovery, may seem to have an unfair advantage (Chudasma v. Mazda – DC judge reprimanded for allowing abuse of discovery) Rule 37: Discover Sanctions (a) Motion for order compelling disclosure or discovery (1) Appropriate Court (2) Motion (A) Party fails to make a disclosure, other party move to compel disclosure and sanctions (B) If deponent fails to answer a question, discovering party may move for an order compelling an answer (3) Evasive or Incomplete Disclosure, Answer, or Response – treated as a failure (4) Expenses and Sanctions (A) Party to pay moving parties reasonable attorney fees (B) If motion is denied, the court may enter any protective order of [FRCP 26(c)] (C) Motion is granted in part and denied in part, the court may any protective order of [FRCP 26(c)] (b) Failure to Comply with Order (1) Deponent fails to be sworn or to answer may be considered a contempt of that court (2) Party fails to obey an order to provide or permit discovery (B) order refusing to allow the disobedient party to support or oppose designated claims or defenses (C) order striking out pleadings or parts (D) order treating as a contempt of court the failure to obey any orders except an order to submit a physical or mental examination (c) Failure to Disclose; False or misleading Disclosure; Refuse to Admit (1) a party that fails to disclose information shall not be permitted to use as evidence at a trial, or on a motion any witness or information not disclosed, may include informing jury of failure to make disclosure (2) party fails to admit the genuineness of any document, may have to pay expenses in verifying proof (d) Failure of party to attend at own deposition or serve answers to interrogatories – pay reasonable attorney fees (g) Failure to participate in the Framing of a Discovery Plan – party may have to pay reasonable attorney fees Page 16 of 37 C. Sanctions [FRCP 37] 1. Failure to Comply with Order [FRCP 37(b)] – primarily against parties 2. Failures, not requiring court orders a. Failure to Disclose; False or Misleading Disclosure; Refusal to Admit [FRCP 37(c)] b. Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection [FRCP 37(d)] c. Failure to Participate in the Framing of a Discovery Plan [FRCP 37(g)] 3. What can the court do? a. Order the matters to be treated as admitted b. Prohibit the party from supporting or opposing designated claims or defenses c. Strike pleadings, stay or dismiss the action, or render a default judgment d. Hold the delinquent party or witness in contempt (not for failing to submit to FRCP 35) e. Reasonable expenses, including attorneys’ fees 4. Court may impose punishments ranging from awards of expenses to dismissals of an entire case or the entry of a default judgment 5. FRCP 37 not immediately sanctionable, but FRCP 26(g)(3) are immediately sanctionable VI. Timeline A. Definitions 1. Service = when the party has been served or has waived formal service 2. Appearance = when files some motion, acknowledging participation in the lawsuit 3. has to show a desire to dispute the action. B. Scheduling and Planning [FRCP 16(b)]: 1. Scheduling order issued: a. Within 90 days after appearance of a b. Within 120 days after complaint has been served on a : 2. Limits the time: a. to join other parties and to amend the pleadings; b. to file motions; and c. to complete discovery 3. The scheduling order may also include a. modifications of the times for disclosures under [FRCP 26(a)] and [FRCP 26(e)(1)] and of the extent of discovery to be permitted b. the date or dates for conferences before trial, a final pretrial conference, and trial; and c. any other matters appropriate in the circumstances of the case. 4. Modification requires: a. a showing of good cause and b. leave of the district judge or, when authorized by local rule, by a magistrate judge 5. Parties meet without the judge to discuss case at least 14 days prior to Scheduling Conference [FRCP 26(f)] a. claims and defenses b. possibility of settlement c. initial disclosures d. discovery plan 6. Parties exchange disclosure lists within 10 days after this meeting (prior to ‘scheduling conference’) [FRCP 26(a)(1)] Page 17 of 37 Resolution Without Trial I. What happens to lawsuits that don’t go to trial? A. Adjudication 1. Dismissal on the pleadings 2. Summary Judgment (no dispute of fact, just question of law) B. ADR Pre-Trial Adjudication Adjudication Default Judgment [FRCP 55] Involuntary Dismissal [FRCP 41] Party π Purpose designed to goad into action typically occurs when refuses to respond to litigative cues intended to prevent π from being lazy occurs when π initiates a suit but fails to respond to one of ’s initiatives or disobeys a court order II. Adjudicated Resolution A. Default and Default Judgments [FRCP 55] 1. Default serves as admission of liability (fails to plead) 2. π still has to prove that the facts justify relief 3. If party has appeared, must be served with written notice a. at least 3 days prior to the hearing of application for default [FRCP 55(b)(2)] b. Appearance – any action/contact exhibiting interest suggesting party may protest the notice 4. Must observe due process in notifying prior to default judgment (Peralta v. Heights Medical Center – reversed since π didn’t give notice before acting on default judgment) 5. While courts can enter default judgments, they prefer to see parties engage on merits of dispute 6. Default judgments possible when sum is easily ascertainable or calculable Rule 55: Default (a) When party fails to plead in response, clerk enters default (b) Judgment (1) By the Clerk (If π requests, Clerk can enter judgment for amount prayed for) (2) By the Court (Otherwise, party appeals to court) after notifying 3 days prior (c) Can set aside default for good cause (d) Applies to πs, counterclaimants, cross-claimants (e) No default for U.S. or U.S. officer/agency B. Dismissal of Actions [FRCP 41] 1. Voluntary [FRCP 41(a)] a. π moves for dismissal b. Dismissal for failure to prosecute c. Agreement on dismissal does not bar a later refilling of the suit unless there has been a previous dismissal or the dismissal contains a provision that bars refilling [FRCP 41(a)(1)(ii)] 2. Involuntary [FRCP 41(b)] a. moves for dismissal b. For failure of π to prosecute or comply with FRCP or a court order, can move for dismissal c. Dismissal = adjudication on the merits Rule 41: Dismissal of Actions (a) Voluntary (1) By π i. by filing a notice of dismissal before adverse party serves an answer, or before summary judgment ii. by filing a stipulation of dismissal signed by all parties who have appeared (2) By Court (b) Involuntary ( can move for dismissal for failure of π to prosecute or comply with FRCP or a court order) (c) Also applies to counterclaim, cross-claim, or third-party claim Page 18 of 37 III. Avoiding Adjudication A. Summary Judgment 1. Requirements a. No disputed matters of fact b. Moving party is entitled to judgment as a matter of law 2. An adjudicative alternative to trial for cases so one-sided that trial would be pointless 3. Designed to prevent futility of trial 4. Responsibilities – (remember – burden of persuasion parallels what burden would be at trial) a. Moving party i. Must affirmatively show that there is no evidence in the record to support a judgment for the nonmoving party ii. Demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of their claim iii. There is no requirement that moving party support its motion with affidavits or other similar materials negating the opponent's claim (Celotex v. Catrett – π didn’t show that lacked evidence, so summary judgment not allowed; burden @trial = burden @summary judgment. Summary judgment for is appropriate when π fails to make a showing sufficient to establish the existence of an element essential to π’s case, and on which π will bear the burden at trial.) b. Opposing party i. Show that there are matters of fact that require a trial ii. Nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment. (Visser v. Packer Engineering – summary judgment inappropriately granted with no support) 5. Motion is made after answer is plead (at any time after answer) 6. Granted when there is no genuine issue as to any material fact -judgment comes on a matter of law [FRCP 56] 7. Affidavit a. A written document in which the affiant swears under penalty of perjury that statements are true b. Must be based on personal knowledge 8. The court may not decide disputed matters of fact on a motion for summary judgment Rule 56: Summary Judgment (no genuine issue as to any material fact and movant is entitled to judgment as a matter of law) (a) For Claimant – move with or without supporting affidavits for a summary judgment in the party's favor (b) For Defending Party – move with or without supporting affidavits for a summary judgment in the party's favor (c) Motion and Proceedings – no genuine issue of fact /only genuine matter of law (d) Ascertain what material facts exist without substantial controversy and what material facts are actually controverted (e) Affidavits showing genuine issue for trial, affidavits can support discovery material (f) Court can refuse judgment if affidavits are unavailable or issue continuance (g) Affidavits made in bad faith may lead to that party paying reasonable attorney fees FRCP 12(b)(6) vs. Summary Judgment [FRCP 56] vs. Judgment on the Pleadings [FRCP 12(c)] FRCP 12(b)(6) Summary Judgment Judgment on the Pleadings FRCP 12(c) addresses legal sufficiency of the complaint judgment based on undisputed facts on the face of the pleading, the moving party is entitled to judgment B. Judicial Management of Litigation 1. Managing Litigation a. Failure to abide by a pretrial order can lead to dismissal as a sanction for failure to obey b. Dismissal is so harsh a penalty it should be imposed as a sanction only in extreme circumstances c. Before dismissing a case for failure to comply with a court order, the key factors are prejudice and availability of lesser sanctions (Sanders v. UP Railroad – Case dismissed for failure to comply with pretrial order [repealed]) 2. Litigation bound for Trial: Pretrial Order a. Purpose – to prepare parties for the actual trial by encouraging i. a refining of legal theories and factual disputes, and ii. a precise identification of questions to be contested at trial b. Stipulations of pretrial order can be a serious inhibition at trial Page 19 of 37 c. Injustice is more likely from not permitting a change of legal theory than not permitting admission of evidence Rule 16: Pretrial Conferences (Prepare parties for the actual trial) (a) Objectives (1) expediting the disposition (2) establishing early and continuing control (3) discourage wasteful pretrial activities (4) improving the quality of trial (5) facilitating the settlement of the case (b) Scheduling and Planning (1) join other parties and to amend pleadings (2) file motions (3) complete discovery (4) modify time of disclosures (5) dates for conferences (6) any other matters appropriate (c) Subjects for consideration (1) formulation and simplification of the issues (2) necessity and desirability of amendments to the pleading (3) possibility of obtaining admissions of fact (4) avoidance of unnecessary proof and of cumulative evidence (5) appropriateness of Rule 56 (6) control and scheduling of discovery (7) identification of witnesses and documents (8) advisability of referring matters to a magistrate judge (9) settlement (10) form & substance of pretrial order (11) disposition of pending motions (12) special procedures (13) separate trial (14) order to present evidence early (15) order limiting time for evidence (16) other orders to expedite disposition (d) Formulate a plan for trial and a program for facilitating the admission of evidence (e) Pretrial orders (f) Sanctions party fails to obey a scheduling or pretrial order no appearance is made on behalf of a party party is substantially unprepared to participate fails to participate in good faith Page 20 of 37 Identifying the Trier I. General A. Pretrial decisions affect 1. Choice of judge 2. Choice between judge & jury 3. Selection of jury B. Selecting the trier of fact affects 1. Jurisdiction 2. Arbitration 3. Mediation 4. Settlement II. Bias & Recusal in Judges A. Selecting judge important because 1. Majority of the decisions are made by the judge 2. Counterbalance offered by jury trial will not come into play 3. The judge not only rules on challenges to jurors 4. Power of JNOV and ordering a new trial B. Background, sex, or race of judge is not sufficient grounds for removal C. To require recusal as a result of information gained during trial, judicial remarks must reveal a high degree of favoritism or antagonism as to make a fair judgment impossible D. Attorneys may be fearful of filing a complaint against a judge due to fear of retaliation U.S.C. Title 28 §455 Disqualification of Judges in Bankruptcy (a) Judge shall disqualify himself if his impartiality might be reasonably questioned (b) Must disqualify if he has: (1) personal bias/knowledge or prejudice (2) served as a lawyer or material witness in the matter (3) served as a government employee, counsel, an adviser or material witness concerning the proceeding (4) a financial interest in the subject matter in controversy (5) or he or his spouse (i) is a party (ii) is a lawyer in the proceeding (iii) has an interest that will be affected by the outcome (iv) is likely to be a material witness (c) Judge required to make a reasonable effort to inform himself about the personal financial interests of himself/family (d) Definitions (e) Subsection(b) unwaiverable – Subsection(a) waiverable after full disclosure (f) Disqualification is not required if the justice divests himself of the interest that provides the grounds for disqualification E. Two Broad Categories for disqualifying a judge 1. He has served as a lawyer in the matter in controversy 2. Impartiality might reasonably be questioned (In re Jeffrey C. Hatcher – Judge recused because of son’s prior proceeding in related case) F. Differences between §144 & §455 1. §144 applies only to District Court judges, while §455 applies to any federal court judge 2. §144 permits a party to seek recusal by bringing specific issues to the court’s attention 3. Party files an affidavit stating the facts and reasons for the belief that bias or prejudice exists 4. Affidavit must be accompanied by a certificate stating good faith 5. When a judge is challenged under §144, he shall stop proceedings and let another judge hear the proceeding 6. §455(b) focuses more on actual bias, while §455(a) focuses more on public appearances 7. Subsection(b) unwaiverable due to impossibility of eradicating factual bias; – Subsection(a) waiverable after full disclosure due to nullification of public opinion consideration with parties’ consent Right to a Jury Trial Legal claim should be tried 1st to a jury Jury should try the fact issues Page 21 of 37 G. Peremptory Challenges 1. Challenge to judge without cause 2. California permits peremptory (without cause) challenges III. Judge or Jury A. Judge 1. Decides matters of equity. 2. Predominately male, Caucasian, Middle Aged 3. Specialized education and lots of professional experience B. Jury 1. Decides matters of law. 2. Deliberate in secret 3. Unburdened by the requirement that they describe each link in the chain of fact and law that leads to their conclusion 4. Fact-finding body 5. Voice of the community 6. Democratic institution Trial by Jury FRCP 38 Jury Right of Trial Amendment VII United States Constitution (a) Right Preserved -Can request a trial by jury of an issue triable by a jury by (b) Demand (1) Serving upon other party a demand any time after commencement of action and no later than 10 days after service of last pleading (answer), and (2) Filing and demand as required by FRCP 5(d) (c) Specification of Issues (1) Party may specify issues which the party wishes to be tried by jury (2) If the demand is only for some issues to be tried by jury, a party may submit a demand for trial by jury (on any or all issues of fact) within 10 days of service of the demand (d) Waiver (e) Admiralty & Maritime Claims In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States Money damages respondents seek are the type of relief traditionally awarded by courts of law C. Equitable v Legal 1. Two theories a. Begin by examining the way it would be handled under the writ system in 1791 b. Continue by examining remedies (damages=jury /performance=judge) 2. Federal vs. State Courts a. No federal constitutional requirement that states accord the right of trial by jury in any civil case b. Federal courts have more money to have jury trials where states do not 3. Equitable remedies are available only if legal remedies are inadequate (Chauffers, Teamsters & Helpers v. Terry – Matters of law; therefore, right to jury trial) 4. Generally -decide matters of law (jury) before deciding matters of equity (judge) 5. If there are some (1) claims/counterclaim that require a jury, then party gets a jury for that claim 6. Beacon Theaters, Inc. v. Westover a. The right to a jury cannot be dispensed with in federal courts, except by the assent of parties entitled to it, nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of legal action. b. The jury trial should precede any hearing on the equitable claim c. The jury’s findings control all matters of fact and disputed issues that might arise in the legal and the equitable claims (judge is bound by jury) 7. Whichever trier of fact goes first will bind the subsequent trier Types of Proceeding U.S.C. Title 28 §455(d)(1) Pretrial Trial Appellate Review Other Stages of Litigation Matters of Law v. Matters of Equity Law Equity Monetary Damages Injunction/TRO Trover Replevin Ejectment Specific Performance Order to do something Rescission Page 22 of 37 8. Equitable remedies are available only if legal remedies are inadequate (Amoco Oil Co. v. Torcomian – Matters of law (ejectment) and equity (injunctive relief); therefore, trial of legal claims by jury first, then trial of matters of equity by judge) D. Directed Verdict 1. A method of taking the decision on a matter of law away from the jury 2. Methods a. Preponderance of evidence b. Insufficiency of evidence 3. If a directed verdict harms a party (it could have gone the other way), a higher court can remand for trial by jury IV. Choosing Juries A. Assembling and Challenging a Pool of Jurors (2-step process) 1. Summon a pool of prospective jurors 2. Select from the pool Jury Selection Rules U.S.C. Notes §1861 -Declaration of Policy All litigants entitled to trial by jury shall have the right to a jury selected at random from a fair cross section of the community in the district where the court convenes. All citizens shall have the opportunity to be considered and the obligation to serve when summoned. §1862 -Discrimination Prohibited No discrimination based on race, color, religion, sex, national origin, or economic status. §1865 -Qualifications for Jury Service (a) Chief judge decides whether a person is unqualified for, exempt from, or excused from jury service (b) Qualified unless (1) Not an 18-year-old US citizen who has lived within the district for 1 year (2) Illiterate (3) Can’t speak English (4) Mental or physical infirmity (5) Charged with or convicted of a felony §1867 – Challenging Compliance w/Selection Procedures (a) Criminal can move for dismissal before voir dire or within 7 days after discovers selection procedure violation (b) In a criminal case, Attorney General can move for dismissal before voir dire or within 7 days after he discovers selection procedure violation (c) Civil Cases, same as (a)(b) (d) Upon (a)(b)(c), movant can submit supporting evidence. Court can either stay proceedings or dismiss indictment §1870 – Challenge 3 peremptory challenges to jury members FRCP 47 Selection of Jurors (a) Examination of Jurors – Either judge or parties/attorneys may examine prospective jurors (b) Peremptory Challenges – 3 challenges (c) Excuse – Court may excuse a juror for good cause B. Pool v. Panel 1. Pool – the potential jurors, group from which names are selected 2. Panel – actual jury, those who are selected to serve C. Challenging for Cause 1. Voir dire a. To speak the truth b. The process of selecting jurors c. Seeks to eliminate jurors whose sympathies or inability to understand the evidence might cause them to reach irrational verdicts 2. Challenging a juror for cause = arguing the juror is not qualified to serve 3. Functions of voir dire Page 23 of 37 a. Lawyers begin presenting their cases b. Parties develop a list of jurors they would like to strike as a peremptory challenge 4. Standard for challenging a verdict on the basis of inaccurate answers in voir dire a. Juror failed to answer honestly a material question on voir dire b. A correct response would have provided a valid basis for a challenge for cause D. Peremptory Challenges 1. Peremptory challenge allows lawyers to strike a juror for any reason or for no reason at all 2. Each side gets 3 peremptory strikes 3. Justification a. Make the parties have more confidence in the verdict b. Protect the parties from possible offenses they may have committed against jurors during voir dire 4. Peremptory challenges can be challenged for procedural violation in accordance with U.S.C. §1867 5. State litigant cannot discriminate based on gender (private litigant might be able to do so) (J.E.B. v. Alabama – Unconstitutional for the state, but not for a private civil litigant, to exercise a peremptory challenge based on gender) 6. No party can challenge based on race alone (Edmonson v. Leesville Concrete Co. – Private litigant (defense) can’t execute peremptory challenge based on race) Page 24 of 37 Trial I. The Limits of Rational Inference -Judgments will be based only on inferences that a reasonable person could rationally draw from the evidence presented at trial (Reid v. San Pedro, Los Angeles, & Salt Lake Railroad -no direct evidence that the cow was killed by the train, therefore, jury could not make a rational inference that π should recover) II. Procedural Control of Rational Proof A. Juries, Democracy, and Rationality 1. Judge a. Instruct jurors not to discuss the case with others and to decide only on the basis of evidence presented in the courtroom b. Can sequester the jury c. Frames the question by instructing the jury on the law d. Instructions explain the substantive law that applies to the case e. Explains the sequential way the decisions the jury must reach in a given case f. Tell the jury what he thinks of the evidence g. Has the theoretical power to comment on the evidence 2. Juries a. Weigh conflicting evidence and inferences and determine the credibility of witnesses b. Courts often give to juries cases where the facts are undisputed 3. Two audiences for instructions a. Jury – simplified and easy to follow b. Appellate Court – nuanced, perfectly balanced, all inclusive statements of the law B. Burdens 1. Burden of proof -burden of proving some aspect of the case 2. Two forms a. Burden of persuasion i. Who has to ‘bend the minds (convince) of’ the trier of fact? ii. Lower than ‘beyond a reasonable doubt’ iii. The preponderance of evidence iv. More probable than not v. More likely than not b. Burden of production i. Who has to produce evidence? ii. Come forward with evidence iii. Requires a party to produce or to find & present evidence C. Controlling Juries Before the Verdict 1. Control flow of information to jury a. Law of evidence b. Power of instructing the jury on the law and of commenting on the evidence [FRCP 51] 2. Control what jury does with information a. Directed verdict (Judgment as a matter of law /jml) b. Judgment notwithstanding the verdict (jnov) c. Grant of new trials 3. Judgment as a Matter of Law (Directed Verdict) [FRCP 50] a. Basic test – If reasonable persons could differ the court should defer to the jury b. Permits a party at the close of opponent’s evidence to move for judgment as a matter of law c. Sometimes, jml is denied because the appellate court reverses a jml, a whole new trial may be necessary d. Asking the judge to take the case away from the jury to prevent it from considering the evidence and reaching a verdict e. Announcing a result that a jury would inevitably reach f. Issues i. Credibility -witness ii. Inference -conclusions iii. Evaluation – physical facts iv. Substance Burdens Burden of Pleading Burden of Proof Burden of Production Burden of Persuasion FRCP 51 – Instructions to Jury: Objection Parties may file written requests on jury instructions Court must inform counsel of its forthcoming instructions Court may instruct the jury before or after arguments, or both Parties can object to instruction before jury deliberates Page 25 of 37 g. Court should consider all evidence favorable to π, all inferences from that evidence, and all undisputed evidence h. Judges prefer not to enter judgments as a matter of law i. Judgment as a Matter of Law (jml) is a final judgment from which an appeal may be taken (Pennsylvania Railroad v. Chamberlain – Chamberlain’s witness did not reliably meet burden of persuasion, ∴ directed verdict for π affirmed) FRCP 50 Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings (a) Judgment as a Matter of Law – There is no legally sufficient evidentiary basis for a reasonable jury to find for that person on that issue (1) After a party has been heard at trial, if he doesn’t have a case (as a matter of fact), the judge can rule against him on that issue (2) Motion can be made at any time before submission of case to jury (b) Renewing Motion for Judgment After Trial /Alternative Motion for New Trial – Party can renew motion, or ask for a new trial If a verdict was previously returned, the court can: (A) Order a new trial (B) Direct entry of judgment as a matter of law (C) Allow the judgment to stand If no verdict was previously returned, the court can: (A) Order a new trial (B) Direct entry of judgment as a matter of law (c) Granting Renewed Motion for Judgment as a Matter of Law /Conditional Rulings /New Trial Motion (d) Same: Denial of Motion for Judgment as a Matter of Law D. Controlling Juries After the Verdict 1. Judgment as a Matter of Law – Judgment Notwithstanding the Verdict (jnov) a. JNOV – a delayed ruling on the earlier motion for judgment as a matter of law (directed verdict) b. Grounds (same as for directed verdict) – “There is no legally sufficient evidentiary basis for a reasonable jury to find for the party against whom the motion is made” c. Verdict unsupportable because there is no evidence to support jury’s finding d. Failure to make a motion for a directed verdict before case is submitted to the jury [FRCP 50(a)] forfeits the right to move for jnov after jury returns verdict [FRCP 50(b)]. e. In granting jnov, court is saying that the winner of the verdict had no evidentiary support for at least one essential element of the claim or defense 2. New Trial a. Judge may order a new trial on his own initiative or on a party’s motion b. Does not specify the grounds for which a new trial may be ordered c. Grant of a new trial cannot be appealed because it is not a final order (In Re Beverly Hills Litigation – Judge should have ordered new trial when a juror introduced new evidence during deliberation) d. Judge as a 13th Juror i. Judges should not substitute their own opinions in ordering a new trial. Rather, should avoid a miscarriage of justice. ii. When the issue is primarily the credibility of a witness, the judge should not substitute his opinion for that of the jury e. Reasons for new trial being granted i. Evidence improperly admitted ii. Prejudicial statements by counsel iii. Improper charge to the jury or newly discovered evidence (Lind v. Schenley Industries – Jury verdict allowed to stand, b/c it was not against the weight of the evidence. Judge not allowed to enter his own view) f. Flawed procedures i. Bad jury instructions ii. Improper admission of evidence iii. Lawyer makes impermissible argument iv. Juror misbehaved during the trial v. Gives the judge an opportunity to correct himself g. Flawed verdicts i. The verdict goes against the evidence ii. Doesn’t redefine who won or lost, just begins the game again Page 26 of 37 h. Conditional New Trials i. New trial limited to damages – Jury probably accurately assigned liability, but was so passionately disposed toward the π that it awarded excessive damages ii. Remittitur and Additur (1) Remittitur Modifies a ruling of the jury Judge orders new trial unless the π agrees to accept reduced damages (2) Additur Judge orders new trial unless the agrees to award increased damages Unconstitutional invasion of ’s rights, because it adds to a rule the jury did not make FRCP 59 New Trials; Amendment of Judgments (a) Grounds – In any action tried with or without a jury, for any reason for which trials have heretofore been granted (b) Time for Motion – NLT 10 days after entry of judgment (c) Time for Serving Affidavits – Same as motion, but can be extended to 20 days for good cause or by parties’ stipulation (d) On Court’s Initiative; Notice; Specifying Grounds – Court may grant for any reason. Must specify grounds in its order (e) Motion to Alter or Amend a Judgment – NLT 10 days after judgment E. The Limits of the Law’s Control: The Jury as a Black Box 1. Judge or lawyer can talk to jurors after trial, but judge cannot change their verdict because he learns they misunderstood during trial 2. Cannot impeach jury’s verdict solely because of post-verdict statements of jurors 3. Seventh Amendment ensures no fact tried by a jury shall be otherwise reexamined in any court of the US other than according to the rules of common law (Peterson v. Wilson – Judge grants new §1983 trial after chatting with jurors. Reversed, b/c judge can’t do that) Appropriate Damages Highest amount Reasonable amount Lowest reasonable amount Page 27 of 37 Appeal I. General A. Background 1. One may appeal only from a judgment 2. Most cases are affirmed on appeal 3. Heavy presumption that the trial court was correct B. Conflicting Goals – Fairness & Justice 1. Fairness – Parties should win or lose depending on: a. Their compliance with procedural rules and b. The quality of their arguments 2. Justice – The “right” party should win, regardless of technicalities C. Restrictions on availability of review 1. Who can appeal 2. What decisions can be appealed 3. Depth of scrutiny an appellate court may exercise D. Three requirements for appeal 1. Adversity a. Requires an adverse judgment b. A judgment granting relief different from what one requested c. Can only appeal if party is ‘adverse’ to the decision 2. That the issue be raised below 3. That the party not be deterred II. Who Can Appeal A. A Losing Party: Adversity 1. Different Theory a. If the party would have turned out the same under a different theory, no appeal b. If the party would have turned out different under a different theory, appeal 2. Rejection theory -If the appealing party is entitled to more/different relief or to a different judgment, then an appeal should be granted 3. Doctrine of Mootness a. One may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible b. Result from settlement 4. Principle of the adverse judgment B. Who Raised the Issue Below: Waiver a. Failure of a party to present contentions on which it wants rulings to the trial court results in waiver of the contention b. If appellee lost on a defense or claim below and wants to preserve the objection in case the case is reversed, he must cross-appeal c. On cross-appeal, party can only raise those arguments made at trial d. Appellate courts will not consider arguments not made at trial e. A court may decide on a theory not raised by the parties, but a party must consistently raise the issue he wants to argue f. Exceptions i. Law changes ii. “Plain error” rule – lower court erred C. Who Was Not Deterred a. Every jurisdiction grants the right of at least one appeal in civil cases b. All civil appeals are discretionary rather than by right c. Supreme Court has never maintained a constitutional right to appeal Federal Rules of Appellate Procedure Rule 4 a 1 a • 30 days for the typical appeal • 60 days if against USA Rule 4a: when there’s a judgment, what happens? • Losing party files JNOV, motion for new trial • Rule tells us that time to file an appeal will be delayed until orders disposing of those motions are entered in the civil docket Page 28 of 37 III. When a Decision May Be Reviewed (Finality) A. The Final Judgment Rule 1. Only final decisions may be appealed 2. Final Judgment – a decision which ends the litigation on the merits and leaves nothing for the courts to do but execute the judgment 3. Timing for Appeal a. Civil Docket lists the date of final judgment [FRCP 79] b. Must file with the clerk of the district court [FRAP 3(a)] c. Within 30 days after final judgment for the typical appeal [FRAP 4(a)(1)] d. Within 60 days after final judgment for an appeal involving the united states [FRAP 4(a)(1)] e. Time starts to run after filing of [FRCP 59] (new trial) and/or [FRCP 50(a)] (jml/jnov) 4. Only set aside final judgment rule when a right would be violated without an appellate court making a correction before final judgment 5. When more than 1 claim for relief is presented in an action, or when multiple parties are involved, the court may direct the entry of a final judgment on 1 or more, but < all of the claims [FRCP 54(b)] (Liberty Mutual Insurance Co. v. Wetzel -πs set forth a single claim and prayed for several different types of relief, and their complaint advanced a single legal theory which was applied to only one set of facts, therefore, no recovery) 28 U.S.C. §1291: Final Decisions of District Courts 28 U.S.C. §1292: Interlocutory Decisions (b) Court of Appeals has jurisdiction on appeals from all final decisions of the District Courts (with exceptions) (c) United States Court of Appeals for the Federal District has limited jurisdiction (d) Shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation (e) US Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order A. Exceptions to the Final Judgment Rule 1. Practical Finality a. Collateral Order Doctrine i. Prejudgment orders that finally determine claims of right separable from, and collateral to, rights asserted in the action that are too important to be denied review and too independent of the cause itself to require deferring appellate consideration until the whole case is adjudicated ii. Conditions It must conclusively determine the disputed question It must resolve an important issue completely separate from the merits of the action It must be effectively unreviewable on appeal from a final judgment. (Applies when the order involves a right of legal and practical value that would be destroyed if it were not vindicated before trial) Practically Final Not Practically Final Orders vacating the attachment of a vessel Orders denying a party leave to proceed without filing fees and paying court costs Orders remanding a diversity action on grounds of abstention An order requiring disclosure of documents based on claims of attorney-client privilege or workprooduc protection Orders refusing to certify class actions Orders disqualifying or refusing to disqualify trial counsel for conflict of interest Orders denying permission to intervene as of right Orders denying a motion to dismiss on grounds of immunity from service of process Orders requiring class action D’s to pay for notifying members of a class Judicial rescission of a dismissal pursuant to settlement §1291 Functions Defines when an appeal is proper Grants jurisdiction to appellate courts Collateral Order Conditions Conclusively Determine Completely Separate Effectively Unreviewable Page 29 of 37 b. §1291 only permits an appeal if an order denying a motion to dismiss based upon a forum-selection clause falls within the collateral order doctrine c. The likelihood that a ruling might be wrong or might impose additional litigation expense is not enough to set aside the final judgment rule d. Issue can arise when is deprived of his right not to stand trial (Lauro Lines s.r.l. v. Chasser – Court determines that forcing to go forward with litigation in the U.S. was not practically final after considering the collateral order doctrine) 2. Injunctions a. §1292(a) allows appeals from interlocutory orders that grant, continue, modify, refuse, or dissolve injunctions, or refuse to dissolve or modify injunctions b. Does not apply to a temporary restraining order (TRO) 3. Interlocutory Appeals a. §1292 permits district courts to certify interlocutory appeals from nonfinal judgments b. Two Requirements that make a Writ of Mandamus more attractive i. District Court judge must certify that (1) The order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that (2) An immediate appeal may materially advance the ultimate termination of the litigation ii. Then, Circuit Court of Appeals has discretion of an appeal 4. Writ of Mandamus a. Originates in District Court b. Purpose of Writ of Mandamus -Orders a public official to perform an act required by law c. Factors involved in issuing a writ of mandamus i. Its issuance can be read as a censure of the District Court judge ii. Abuse of discretion in the lower court d. Uses i. To confine a lower court to a lawful exercise of its prescribed jurisdiction or ii. To compel it to exercise its authority when it is duty-bound to do so. iii. Used to force a District Court judge to do something when a party does not believe the judge would grant an interlocutory appeal e. Court can refuse a writ of mandamus but discuss the course it “hopes” the lower court will take (Schagenhauf v. Holder – Supreme Court did not grant writ of mandamus to force examination, but suggested that examinations should be conducted IAW opinion of the court) Page 30 of 37 IV. Scope of Review A. Law and Fact (Clearly Erroneous) 1. Trial judge’s role is the determination of facts. It makes sense to adopt the view of the first hearer of the case. 2. Cases in equity were only on written record, which led to appellate court review de novo (again) 3. Generally, Appellate Courts defer to district courts on questions of fact, considering: a. Clearly Erroneous -A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed b. Due Regard -Appellate courts give due regard to trial court’s ability to interpret & discern credibility of oral testimony. (Anderson v. Bessemer City -finding that the female applicant had been discriminated against on the basis of her sex was not clearly erroneous) 4. Doesn’t matter if the testimony is oral or written. 5. Circuit Courts of Appeals review de novo all District Court interpretations of State Law Rule 52 – Findings by the Court; Judgment on Partial Findings (a) Effect If judge makes a finding of fact, the court shall “state separately its conclusions of law thereon, and judgment shall be entered” Findings of fact, shall not be set aside unless “clearly erroneous”, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses (b) Amendment Within 10 days after entry of judgment, a party may move to have the court amend/make additional findings Court may amend the judgment accordingly (c) Judgment on Partial Findings – Court can choose to rule on partial findings or wait until close of evidence to rule B. Harmless Error 1. Harmless Error – an error that does not affect the substantial rights of the parties 2. Federal courts are forbidden to reverse for errors or defects that do not affect the substantial rights of the parties 3. Appellate courts look for error, then determine whether the error was harmful 4. Evidence did not have a substantial influence on the verdict 5. Court must speculate about the likely outcome of the case in the absence of the error 6. Errors affecting jury deliberation are considered intrinsically more serious than others HARMLESS ERROR Rule 61 – Harmless Error Title 28 Section 2111 – Harmless Error Error only occurs when court’s action or inaction is inconsistent with substantial justice. Only consider errors that affect parties’ substantial rights On the hearing of any appeal or writ of certiorari in any case the court shall give judgment after an examination of the record No regard to errors or defects which do not affect the substantial rights of the parties Decide whether the error was harmful Applies @appellate level Applies @appellate level Page 31 of 37 Respect for Judgments I. General A. Procedural rules have 2 goals: 1. Air disputes completely and reach an accurate and just outcome 2. Lay disputed to rest efficiently even if condition is less than optimal. (finality) B. Both Claim & Issue preclusion focus on former adjudication – the effect of judgments on subsequent litigation. C. Serve to bring an end to a lawsuit D. Claim Preclusion (Res Judicata) – A judgment on the merits in a prior suit bars a second suit involving the same parties or their privities based on the same cause of action. E. Issue Preclusion (Collateral Estoppel) – The second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first outcome. II. Claim Preclusion A. General 1. Transaction – matters related in time, space, origin, and motivation 2. Claim Preclusion bars a party from relitigating a claim that should have been raised in former litigation 3. By preventing subsequent litigation on the same claim, claim preclusion requires the parties to include related grievances in the same suit. 4. One suit precludes another when the parties and the cause of action are identical a. Causes of action are identical when the evidence necessary to sustain a second verdict would sustain the first b. Two suits may entail the same cause of action even though they present different legal theories c. Where the parties and the cause of action are identical d. Where the causes of action are based upon a common core of operative facts 5. Res Judicata a. Res judicata bars counterclaims when prosecution would nullify rights established by a prior action b. Res judicata – the matter was already decided 6. Restatement 2nd of Judgments – all claims arising from a single transaction must be litigated in a single initial lawsuit or be barred from subsequent litigation 7. Claims for equitable relief would not be precluded as a result of a suit in a court that had no power to grant equitable relief 8. Courts try to preclude parties from “splitting” cases involving a. Different theories of recovery b. Arithmetical splitting – separate damages from the same incident in different actions c. Splitting of relief – seeking 1 remedy in 1 action and an alternative remedy in another B. Goals 1. Efficiency: when a party should have raised a claim in previous litigation and failed to do so a. From C/L where a π was precluded from bringing a second claim on the same writ, but remained free to try a different writ on the same facts b. Pleader may bring as many claims as it wants [FRCP 8, 18] c. Problem becomes: if π only brings one such claim, are all other claims forever precluded? d. Intent is to impel parties to consolidate all closely related matters into 1 suit e. Impel parties to consolidate all closely related matters into one suit f. Prevents oppression of s by multiple cases (Frier v City of Vandalia – same party, same issue (towed vehicles), same transaction, occurrence, precluded because already decided below) 2. Finality a. Preserves the integrity of judgments and protects those who rely on them. b. If defenses are not presented in previous action, the subsequent allegation of their existence is of no consequence 3. Consistency a. Logically defers to former judgments b. Encourages parties to bring claims in large package c. Res judicata treats a judgment on the merits as an absolute bar to relitigation between parties and those in privity (same rights) with them of i. every matter offered and received to sustain or defeat the claim or demand and ii. to every matter which might have been received for that purpose. Pleading Reforms Field Codes FRCP Page 32 of 37 d. Husband & wife – separate claims C. Compulsory Counterclaim 1. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction [FRCP 13(a)] 2. Failure to counterclaim during pleading precludes a party from bringing it up later 3. Issue must arise out of the same transaction/occurrence 4. However, there are common law compulsory counterclaims necessary when relitigation would follow a judgment on the merits (Martino v. McDonald’s System Inc. – no pleading (answer) in previous breach of contract case, so FRCP 13(a) does not apply; however, still precluded because of same transaction or occurrence) D. Between the Same Parties 1. A strong legal relationship is required to bind someone to a judgment in a case to which he was not a party 2. Privity a. A person so identified in interest with another that he represents the same legal right. b. This includes a mutual or successive relationship to rights in property c. A party sufficiently involved and interested 3. A court’s freedom to rely on prior precedent in rejecting a litigant’s claims does not afford it similar freedom to bind a litigant to a prior judgment to which he was not a party. 4. Courts do not preclude witnesses from bringing claims similar to those in the case in which they testified 5. Binding nonparties to judgments a. Substantive legal relationships – If the substantive law of the relationship treats A as a substitute for B, B will be bound by the results of the lawsuit in which A participated b. Express agreement to be bound by a decision to which one is not a party c. Instances of ‘procedural representation’ – Someone, though not a party to a lawsuit, so guides and controls it that a court treats him as if he were a party (Searle Brothers v. Searle – Wife getting entire house after divorce. No claim preclusion because the sons could not make a claim at a divorce) E. After a Final Judgment 1. The doctrine of claim preclusion requires a prior final judgment 2. The usual rule is that a judgment is final even though an appeal is pending JUDGMENT ON THE MERITS On the Merits Not on the Merits Full Jury Trial Directed Verdict [FRCP 50] Summary Judgment [FRCP 56] Failure to State a Claim [FRCP 12(b)(6)] Discovery Sanctions [FRCP 37] Failure to Prosecute [FRCP 41(b)] Other Sanctions Lack of Jurisdiction [FRCP 12(b)(1)] Improper Venue [FRCP 12(b)(3)] Failure to Join [FRCP 19] F. After a Judgment on the merits – Preclusion on a non-final judgment can occur 1. Court considered and decided on the merits of the lawsuit, or 2. Preclusive effect ought to attach only to judgments "on the merits" 3. A dismissal operates as an adjudication on the merits EXCEPT a. Dismissal for lack of jurisdiction b. Dismissal for improper venue c. Failure to join a party (Gargallo v. Merrill Lynch -State court judgment could not be given res judicata effect by the federal district court because the state court lacked subject matter jurisdiction. Discovery sanction of dismissal enforced) Title 28 §1738 – State and territorial statutes and judicial proceedings; full faith and credit Acts shall have the same full faith and credit in every court within the United States and its Territories Federal Courts have to uphold State/Territorial Court decisions III. Issue Preclusion (collateral estoppel – Court’s termination/resolution of a question) Page 33 of 37 A. General 1. Issue preclusion prevents inconsistent findings when subsequent litigation is permitted. 2. Issue Preclusion matters when a claim is not barred but some issue involved in that claim has been previously litigated 3. Goals a. Promote efficiency b. Promote consistency 4. Rationale a. Prevents parties or their privities from relitigation facts and issues in the 2nd suit that were fully litigated in the 1st suit b. Asserted only against a party in the subsequent suit who was also a party in privity with a party in the prior suit 5. A determination is conclusive in a subsequent action between the parties, whether the same or a different claim, when: a. an issue of fact or law is b. actually litigated and determined by c. a valid and final judgment, and d. the determination is essential to the judgment 6. Issue preclusion only applies to issues actually raised 7. Application of the doctrine of issue preclusion represents a decision that the needs of judicial finality and efficiency outweigh the possible gains of fairness or accuracy from continued litigation of an issue that previously has been considered by a competent tribunal 8. Issue preclusion only estops issues actually decided in the prior action B. Collateral Estoppel 1. Test for Collateral Estoppel a. Was the issue decided in the prior adjudication identical with the one presented in the action in question? b. Was there a final judgment on the merits? c. Was the party against whom the plea is asserted a party or in privity with a party to the prior litigation? d. Was the issue in the first case competently, fully, and fairly litigated? 2. Collateral estoppel cannot be used when a. A litigant who was not a party to the action and judgment claimed to have created the estoppel b. The party did not have privity in the first action c. There are alternative grounds for resolution of an issue in another court. 3. When a particular issue of fact or law has been determined in one proceeding, then in a subsequent proceeding between the same parties, even on a different cause of action, each party is "collaterally estopped" from claiming that that issue should have been decided differently than it was in the first action (Illinois Central Gulf RR v. Parks -since court did not know reasoning for decision below, the issue could not be precluded. Could have been contributory negligence, proximate cause, or damages) C. Civil and criminal proceedings operate under different burdens of proof 1. May not be the same issue 2. If criminal comes first, issue preclusion may apply because of higher standard of proof D. Between Which Parties? 1. Mutuality – where the former and the current lawsuits involve the same parties 2. Same Parties a. Claim preclusion requires same parties b. Issue preclusion doesn’t always require same parties 3. The Victim of Preclusion a. Biologically separate individuals possess separate claims and no rule compels such individuals to prosecute their claims together. b. A party who has never had an opportunity to litigate an issue cannot be precluded from doing so. c. The requirements of due process of law forbid the assertion of a plea of issue preclusion against a party unless he was bound by the earlier litigation in which the matter was decided – (1) party, or (2) in privity to a party 4. The Precluder a. General i. Procedural settings that differ significantly may supply a reason not to apply preclusion. ii. Preclusion only applies to a party that has already had an opportunity to litigate. iii. Issue preclusion cannot apply to a party who has not had an opportunity to litigate. Issue Preclusion Issue Actually litigated Final judgment Determination is essential Page 34 of 37 iv. The United States cannot be subjected to nonmutual issue preclusion b. Offensive collateral estoppel i. Issue preclusion asserted by π ii. π is seeking to estop from relitigating the issues which previously litigated and lost against another π iii. Criticisms (1) Does not promote judicial economy in cases where π could easily have joined in the earlier action. Therefore, it increases the total amount of litigation (2) Can be unfair to (3) π will be able to rely on a previous judgment against but will not be bound by that judgment if wins (4) π develops a “wait and see attitude” iv. A trial judge should not allow the use of offensive collateral estoppel – (1) In cases where a π could easily have joined in the earlier action or (2) Where, the application of offensive estoppel would be unfair to a , or (3) Where the second action affords the procedural opportunities unavailable in the first action that could readily cause a different result, or (4) Judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the (Parklane Hosiery v. Shore – Previous case gave Parklane the opportunity to prove proxy statements were not materially false and misleading. They lost. Offensive estoppel precluded where P could have easily joined in the earlier action or application would be unfair to .) c. Defensive collateral estoppel i. Issue preclusion asserted by ii. Defensive use refers to assertion of preclusion by a who was not in the first action. iii. is seeking to estop a π from relitigating the issues which won against a previous π iv. Gives π a strong incentive to join all potential in the first action if possible d. Multiple Claimants i. If it is apparent that a previous verdict was the result of a jury compromise, the losing party should not be precluded by a former judgment. ii. If a prior determination was manifestly erroneous, the judgment should not be given preclusive effect. iii. Newly discovered or crucial evidence that wasn’t available previously provides a basis for denying preclusion. iv. Where outstanding determinations are actually inconsistent on the matter sought to be precluded, it would be patently unfair to estop a party by the judgment it lost. v. Restatement 2nd Judgments §29(4) – Cannot preclude if the determination relied on as preclusive was itself inconsistent with another determination of the same issue. (State Farm Fire & Casualty Co. v. Century Home Components – Different verdicts in previous litigation, therefore, not precluded from arguing the issue of liability.) IV. The Boundaries of Preclusion A. Claim Preclusion 1. Restatement 2nd Judgments §26 – Reasons for denying claim preclusion a. The parties have expressly or implicitly agreed to allow claim splitting; b. A court has in the first action reserved π’s right to bring the second action (dismissed 1st action without prejudice); c. Jurisdictional limitations prevented π from seeking certain forms of relief now sought; d. Interpretation of a broadly applicable law (with litigation between different parties) has changed; e. Interpretation of a broadly applicable law (repeated litigation between same parties) has changed; f. Some policy consideration overrides preclusion 2. If a federal civil rights claim is not raised during civil rights litigation, it is precluded from later being raised in federal court. B. Issue Preclusion: Restatement 2nd Judgments §28 – Relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: 1. As a matter of law, the party against whom preclusion is sought could not have obtained review of the judgment 2. The issue is one of law and a. the two actions involve claims that are substantially unrelated, or Page 35 of 37 b. a new determination is warranted to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws. 3. A new determination of the issue is warranted by procedural differences between the two courts or matters of jurisdiction. 4. The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the 1st action. 5. There is a clear and convincing need for determination of the issue because -a. potential adverse impact on the public interest or the interests of persons not initially parties b. it was not sufficiently foreseeable at initial act that the issue would arise in a subsequent action c. as a result of the conduct of an adversary or other special circumstances, the party sought to be precluded did not have adequate opportunity or incentive to obtain a full and fair adjudication C. The Law of the Case and Judicial Estoppel 1. The Law of the Case a. The parties get a single appellate shot at their legal contentions, and b. Once they have achieved such an appellate ruling, it continues to govern in subsequent trial and appellate proceedings. c. Loser may not continue to argue his position in the lower courts. d. Serves to stabilize a legal ruling once it has been made. 2. Judicial Estoppel – Preclusion of inconsistent positions a. General i. A prohibition on lying ii. Not all courts apply it iii. Judicial Estoppel precludes a party from adopting a position that is inconsistent with a stance taken in prior litigation iv. Judicial Estoppel applies not to pleadings, but to sworn positions taken in actual proceedings. b. Elements i. The party sought to be estopped must assert a position inconsistent with that taken in prior litigation and the position must be one of fact rather than law or legal theory. ii. The prior inconsistent position must have been accepted by the court. iii. The party sought to be estopped must intentionally have misled the court to gain unfair advantage. c. Courts apply judicial estoppel when – i. A party has taken a sworn position in a prior proceeding, ii. Benefited from that position by receiving a judgment or other official award, and iii. Now seeks to take a differing position in the present proceeding in order to win a judgment that would rest on a basis inconsistent with his prior position. d. Issue Preclusion vs. Judicial Estoppel i. Issue Preclusion – issue was decided against the party burdened with preclusion ii. Judicial Estoppel – party burdened with preclusion has typically prevailed in the prior litigation e. Rationale – prevent a second fact-finder from overlooking or disregarding a party's prior inconsistent position V. Repose: Collateral Attack and Reopened Judgments A. Full Faith and Credit as a Bar to Collateral Attack 1. Judgments in sister jurisdictions a. 28 U.S.C. §1738 demands that federal courts give the same full faith and credit to state court judgments as those courts would give. b. Constitutional Article IV – places the same obligation on state courts to recognize sister-state judgments. 2. Lack of jurisdiction can still make a decision in a sister jurisdiction not final. a. A judgment is entitled to full faith and credit (even as to questions of jurisdiction) when the 2nd court finds that the case was fully and fairly litigated and finally decided in the court which rendered the original judgment. (applies to subject-matter & personal jurisdiction) b. Restatement, Conflict of Laws §451(2) -Do not relitigate the issue of jurisdiction, unless – i. Lack of subject-matter jurisdiction was clear; ii. Determination as to jurisdiction depended on a question of law rather than of fact; iii. Court was one of limited and not of general jurisdiction; iv. Question of jurisdiction was not actually litigated; v. Policy against court’s acting beyond its jurisdiction is strong. 3. Full Faith and Credit Page 36 of 37 a. Generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. b. The local doctrines of res judicata become part of national jurisprudence. (Durfee v. Duke – District Court gave appropriate full faith and credit to Nebraska Supreme Court’s determination of proper jurisdiction and quieted title to petitioner.) Title 28 §1738 – State and territorial statutes and judicial proceedings; full faith and credit Acts shall have the same full faith and credit in every court within the United States and its Territories Federal Courts have to uphold State/Territorial Court decisions 4. Changed Circumstances (eg. child custody and support decrees) a. Changed circumstances subsequent to the rendition of the decree allow its modification in another state. b. 28 U.S.C. §§1738(A)(B) requires state courts to enforce without modification a decree entered by another court if that court has met requirements of: i. Proper jurisdiction ii. Decree was entered in the child’s home state 5. Foreign Judgments a. If a foreign country judgment resulted from proceedings that comported with notions of due process, the judgment would be enforced if the foreign country recognized American judgments. b. Comity – voluntary recognition of judgments c. Reciprocity – limitation to judgments of countries that recognize American judgments B. The Reopened Judgment as an Alternative to Collateral Attack 1. After a final judgment, the losing litigant discovers that the opposition has failed during discovery to produce highly relevant (perhaps dispositive) materials in its possession 2. If [FRCP 60] is to be interpreted as a coherent whole, Independent Actions must be reserved for cases of injustices which are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of res judicata. (United States v. Beggerly -π's allegation that the US failed to thoroughly search its records and make full disclosure to the DC about the land grant is not a sufficiently gross injustice to warrant opening the case.) 3. Default vs. Dismissal a. Dismissal – Plaintiffs have a hard time reopening judgment b. Default i. It is comparatively easy to open a default judgment on the showing of some negligence and meritorious defense. ii. There is a strong policy against judgments without consideration of the merits. 4. Time Limitations a. There must be an end to the dispute so people can move on with their lives b. Passage of time itself confers legitimacy c. Independent Actions i. Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of res judicata. ii. If time limitation has occurred, party can try to bring an independent action with related, but a separate law suit would ensue. FRCP 60 Relief from Judgment or Order (a) Clerical Mistakes Clerical mistakes arising from oversight or omission may be corrected by the court at any time on its own initiative or by motion of a party after notice. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion, the court may release a party from a final judgment, order or proceeding for any of the following reasons (1) Mistake, inadvertence, surprise, or excusable neglect (2) Newly discovered evidence which by due diligence could not have been discovered in time for a new trial (3) Fraud, misrepresentation, or other misconduct of an adverse party (4) The judgment is void (5) Judgment has been satisfied, released, discharged, etc. (6) Any other reason Page 37 of 37 VI. Expanding the Framework of Litigation: Additional Claims and Parties A. Joinder – the principles that allow parties to modern civil litigation to: 1. combine claims and 2. add additional parties B. In many cases, jurisdictional problems will either limit or defeat joinder that would otherwise be available. C. FRCP establishes a fine line by seeking broad inclusion but trying to define circumstances under which inclusiveness does not prevent resolution of the dispute.