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Civ Pro II – Peterson (Spring 2006)
1. Discovery: Scope and Mechanics, Qualified and Absolute Privileges, Experts, Managing a District Court Caseload, Sanctions
2. Adjudication: Trial by Jury / Judge, Summary Judgment, Judgment as a Matter of Law, New Trials, Motion to Set Aside Judgment
3. Applicable Law: Federal Enacted Law, Federal Common Law, History of Choice of Law, Interpreting State Law, Other Erie Streams
4. Preclusion: Inter-System Preclusion, Asserting Preclusion, Claim Preclusion, Rule Preclusion, Issue Preclusion, Mutuality
5. Appeals: Introduction, Timing, Scope, Cross Appeals, Standard of Review
I. DISCOVERY
A. Scope and Mechanics
1. Goal: preserve evidence, narrow disputed issues, help parties get more info on own/other side’s case, encourage settlement
2. Discoverable (26B1): any matter not privileged that is relevant to the claim or defense of any party & it need not be admissible
at trial so long as reasonably calculated to lead to discovery of admissible evidence.
3. Mandatory Initial Disclosure (26A1): w/o request & w/in 14 days of pre-trial conference, must disclose all info related to your
own party’s claims and defenses (e.g. documents, witnesses, liability insurance, computation of damages).
a. Names, addresses, and phone #s of individuals likely to have discoverable information
b. Copies or descriptions of documents/items in party’s possession that it may use to support its claims/defenses
c. Computation of damages claimed and copies of materials upon which computation is based
d. Copies of all insurance agreements under which an insurer might be liable in total or in part for any judgment
4. Disclosure of Experts (26A2): at least 90 days b4 trial identify expert witnesses expected to be used w/ report stating
qualifications, publications, opinions to be expressed & basis for them, $ to be compensated, & other cases testified in.
5. Pre-Trial Disclosure (26A3): at least 30 days b4 trial a list of all witnesses (to be called & who may be needed) and
exhibits/documents expected to offer or might offer (objections: must be made w/in 14 days or are waived)
6. Protective Order (26C): by motion may prohibit/limit scope of discovery through conditions (e.g. in camera review) or other
means to ensure confidential info is kept secret to prevent embarrassment, hardship, harassment, injustice (e.g. Coke formula)
7. Conference Among Parties (26F): at least 21 days before sked conference to discuss settlement, nature/basis of
claims/defenses, and proposed discovery plan including disclosures to be made/needed and submitted to court w/in 14 days
8. Scheduling Conference & Order (16B): mtg w/ parties & court to decide time limits for joinder, motions, and discovery, and
dates for pre-trial conferences, trial date, etc. and w/in 120 days of served complaint enter scheduling order.
9. Discovery Limitations (26B2)
i. Unreasonably cumulative/duplicative or obtainable from another more convenient, less burdensome/expensive source
ii. Ample opportunity to obtain info sought
iii. Burden/expense of production outweighs its likely benefits taking into account needs of case, amount in controversy,
each party’s resources/ability to control costs, importance of issues & proposed discovery in resolving them
10. Discovery Sanctions (26G): requires certification that all discovery requests, responses, & objections are made w/o intent to
delay, harass, or for improper purpose & subjects certifier to sanctions for violations (Rule 37: only subpoenas & depositions)
11. Depositions (30, 31): put witness under oath to respond to Qs in presence of court officer (10 per side, 7 hrs per day)
a. Purposes: uncover what witness will say at trial or presenting info from a distant witness unavailable for trial.
b. Method: simply a notice to a party or a subpoena for 3 rd party from DC where person’s located (Rule 45) and if they
don’t want to appear they must move for a protective order
c. Corporations (30B6): specify topics & ask corp to designate person to answer as the “organization’s views”
d. No Coaching Witness (30D): objections must be simple & can’t suggest an answer
e. Instructions Not To Answer (30): only allowed for protecting a privilege
f. Types: Evidence (clean, neat, precise, orderly) vs. Discovery (detailed, extensive)
12. Interrogatories (33): send written Qs to other party for written As under oath w/ all facts known/available to it (25 per party)
a. Limits: can address parties only, 30 days to respond, admissible as evidence even though hearsay cuz they’re
statements/admissions of a party (if only the lawyer knows the answer, the lawyer still has to answer – Rule 33C)
b. Answers: you can have other side go through info (reams of data) assuming they can do calculations as easily as you
(no special expertise), or answer/object yourself (be careful other side doesn’t object & give incomplete answer)
13. Request for Documents/Things (34): produce for inspection, copying, or testing all relevant docs/other tangible things
a. Preservation of Documents: party must preserve all docs on litigation at hand even if it has a policy to shred after a
certain period of time (company’s main files, employees’ personal files, calendars, diaries, telephone logs)
b. Subpoenaed Documents (45): can get from a party or non-party (provided from district court if non-party)
14. Limits on Discovery: not required to disclose legal conclusions, company finances, evidence of similar past acts not
admissible (too prejudicial relative to its usefulness)
15. Non-Parties: no mandatory disclosure requirements, not required to respond to interrogatories, but can be subpoenaed for a
deposition or documents (contempt of court if they fail to show up)
16. Failure of a Witness to Show Up: party calling for it gets charged for the opposing side’s costs
17. Always Subpoena Non-Party Witness: failure to do so means they might not and don’t have to show up
18. Requests for Physical/Mental Examination (35): must show mental/physical condition is in controversy (e.g. relevant &
material), & for good cause w/ notice to party to be examined by motion or court order (need for exam / hardship on other party)
a. Example: in car crash a request for eye exam ok but psych eval probably not really in controversy or good cause.
b. Multiple Exams: if you want medical/physical report from other side you have to hand over your own reports.
c. Waiving Privilege: demanding medical reports of other side constitutes waiver of own privilege over medical info
d. Non-Parties: can’t be subjected to physical/mental exam (includes employees of a company being sued)
19. Requests for Admission (36): ask party to admit or deny certain facts or application of law to fact (e.g. admit authenticity of
documents, existence of the accident) to determine what issues are and are not in dispute
a. Must make reasonable efforts to obtain info to respond & must explain why if you can’t answer (e.g. insufficient info)
b. Failure to object or answer is deemed admitted
c. Binding on parties at trial (e.g. can’t subsequently introduce evidence at trial to contradict admission)
d. Binding only in litigation in which they submitted & answered (limited scope to encourage info sharing)
20. Enforcing Discovery
a. Motion to Compel (37): certifies party has made good faith effort to obtain discovery but got incomplete response
b. Sanctions (26/37): court may sanction party for failing to comply w/ discovery order (e.g. order matter to be treated
as admitted, strike pleadings, dismiss action, render default judgment, contempt order, assess costs)
B. Qualified and Absolute Privileges
1. Attorney-Client Privilege: absolute privilege that cannot be overcome regardless of need
a. Purpose: facilitates better representation because clients will be more forthcoming & honest upfront
b. Scope: privilege pertains to the communication not the facts in the communication (facts not protected)
c. Organization’s privilege: extends to employees, but can be waived by org (conflict of interest for in house counsel)
Requirements
d. Party asserting privilege: is or sought to become client - communication for the purpose of being represented by you
for some legal purpose (e.g. not just someone asking Q at a party)
e. Person to whom communication was made: a member of the bar or subordinate & in connection with this
communication is acting as a lawyer
f. Communication relates to a fact of which the attorney was informed
i. by his client
ii. without the presence of strangers
iii. for the purpose of securing primarily either
-an opinion on law or
-legal services or
-assistance in some legal proceeding (e.g. I just shot someone)
-and not for the purpose of committing a crime or tort (e.g. how can I hide the fact I shot someone)
g. Privilege has been claimed and not waived by the client
2. Work Product Privilege (26B3/5): qualified privilege (overcome if compelling need & inability to attain material elsewhere)
*Purpose: encouraging candor for better preparation & to prevent lazy lawyers from living off industrious ones
a. Scope of Work Product Privilege
i. Documents and other tangible things
ii. Prepared in anticipation of litigation or for trial (normal day-to-day work doesn’t count, e.g. investigator
deciding if claim’s covered as part of his daily work wouldn’t qualify)
-Work can be lawyer’s or those assisting in trial prep (e.g engineers, investigators, CFO)
iii. Overcome only if there’s substantial need & unable to obtain elsewhere without undue hardship: only upon
showing that party seeking discovery has substantial need of materials in preparation of the party’s case & is
unable w/o undue hardship to obtain substantial equivalent of material by other means
-Substantial Need Factors: amount at issue, resources of each party, lack of alternatives (e.g. sole
photo of car accident, dead witnesses, but not survivors of sinking boat easily accessible Hickman)
iv. Protection remains for mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative of the party concerning litigation (such info unfairly discloses strategy not fact)
b. Bad Faith Exception: courts may order disclosure of work product when insurer settles in bad faith cuz it’s the exact
and only means of getting such info and actual evidence of wrongdoing (Holmgren v. State Farm).
C. Experts
1. Lay Witnesses: only opinions rationally based on his perception & helpful to clear understanding of testimony or fact at issue
2. Experts: may testify on matter to which they have expertise which qualifies them to render opinions on it (training/experience)
3. Disclosure (26A2): automatic disclosure of names of experts who will testify at trial, written report from expert, exhibits to be
used, qualifications/publications, compensation to be received, other cases worked on
a. Rationale: hired gun, inconsistent past testimony, prejudicial bias, faked or exaggerated qualifications)
4. Non-Testifying Experts: may discover facts known only upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or opinions on same subject by other means
5. Categories of Experts (prevent leeching opponent’s $ resources, superior diligence/prep, avoid lessoning # of candid opinions)
a. Experts a party expects to use at trial (discoverable)
b. Experts retained or specially employed in anticipation of litigation or preparation for trial (discoverable only with
exceptional circumstances such as impracticable for party to get facts or opinions on same subject by other means)
c. Experts informally consulted in preparation for trial but not retained (no discovery)
d. Experts whose information was not acquired in preparation for trial (discoverable, treated like regular lay witnesses)
*Determinative Factors (Ager): manner in which consultation was initiated; nature, type, and extent of information or
material provided to or determined by the expert in connection with his review; duration and intensity of the
consultative relationship; terms of the consultation (e.g. payment, confidentiality of test data or opinions)
D. Managing a District Court Caseload
1. Current Model: case filed, immediate conference, scheduling order, & discovery w/ tight deadlines & required disclosure,
judge actively managing/encouraging settlement, narrowing issues & scheduling timing of motions leading to final pre-trial order
2. Benefits: prevents discovery run amok, crammed dockets w/ unending cases, and overwhelmed judges
3. Burdens: Ds must quickly respond while Ps can prepare ahead of time, disadvantages full investigations into complex
litigation issues, forces unfair settlements, dropped issues, or procedural matters by judge who both sides want & need to appease
4. Expanded Powers for Judges (16): expanded scope of pre-trial conference, made scheduling order and scheduling conferences
mandatory in every case, and allowed sanctions to be imposed for lack of cooperation
5. Final Pre-Trial Conference / Order (supersedes pleadings): defines issues of law, fact, and evidence, excludes non-issues, gets
agreement on facts and authenticity of documents, identifies potential remedies, evidentiary issues, lists exhibits and witnesses
E. Sanctions
1. Sanctions: judge can award sanctions immediately and award an order to produce discovery and if that’s violated, the court
can issue an order of contempt and assess attorney’s fees to winner of motion.
2. Rule 26G: counterpart to Rule 11 in discovery, inasmuch as you have to certify that it is warranted by law or fact, not
interposed for improper purpose, and not unreasonably expensive given what’s at stake in the case
3. Sanctions Standard (26G): whether a reasonable person would have known they were violating Rule 26G (objective)
a. Factors in weighing sanctions: surrounding circumstances, importance of evidence to its proponent, ability of
opposing party to formulate response or comply with request.
b. Example: sanctions appropriate for drug company’s failure to disclose during discovery 2 “smoking gun” documents
showing it was well aware of drug’s adverse effects, even though it denied it in its answer WA Physicians v. Fisons
c. Example: sanctions appropriate for documents w/held after magistrates’ order for interim reports Kodak v. Burkeyi
4. Rule 37C: sanctions appropriate for failure to qualify denials of certain requests to admit in good faith (e.g. whether Sharon
caused collision (impossible to know), whether car collided w/ 3 more vehicles (not clear # collided) Holmgren v. State Farm
II. ADJUDICATION WITH AND WITHOUT TRIAL
A. Trial by Jury: 7th Amendment
1. Purposes: checks concentrated governmental/judicial power & promotes local application of abstract rules of law (obscenity)
2. Criticism: expensive, inefficient, biased and incompetent
3. Nature of Right: either P or D can request a jury
4. Judge & Jury Functions (for new practices look for historical analogies and/or relative competence of judge and jury)
a. Judge: identify legal issues and standards, and provide jury instructions (defining document terms, interpreting K)
b. Jury: define facts of a case, apply facts to relevant legal standard based on judge’s instructions (e.g. were D’s actions
negligent), present results as a verdict (e.g. we find for P in the amount of $X)
5. 7th Amendment: the right to a jury shall be preserved as it was at common law (was there a right to a jury in 1791 in England)
a. Key: historical analog based on nature of issue or remedy sought (injunction = equity/judge vs. $ damages = law/jury)
i. Equity Examples: fraud, injunctions, rescission
ii. Law Examples: $ damages, contract breaches, union’s breached duty of fair representation Terry
b. Legal & Equitable Claims: legal claim tried 1st to jury, then equitable claim by court (bound by jury’s findings) DQ
6. FRCP Jury Rules
a. Must Demand Jury (38): must demand jury trial or it is waived
b. Judge v. Jury (39): outlines division of authority between judge and jury and allows advisory jury (e.g. discovery)
c. Voir Dire (47): selection through voir dire (by judge or lawyers), right to strike for cause or w/ peremptory
d. Process (48): # between 6-12 and alternates participate in deliberations (8 is typical), unanimous verdict
B. Selection and Size of the Jury
1. Empanel Jury: conduct voir dire (asking Qs eliciting views, usually done by judges & at most w/ written input from lawyers)
2. Dismiss for Cause: potential jurors will be excused for cause in cases of serious bias
3. Peremptory Challenges: historically jurors could be stricken for no reason (3 allowed usually, but not cuz race/gender JEB)
4. Opening Statements: P opens then D responds offering case preview (e.g. framing issues, making only credible promises)
5. Direct Evidence (case in chief): P presents direct evidence to support every element of claim for which relief may be granted
(otherwise dismissed on directed verdict). D responds w/ any of its direct evidence. Top witnesses 1st & last (primacy, recency)
6. Rebuttal: P presents witnesses to rebut any of D’s issues, but no new issues can be raised. D has a chance for rebuttal.
7. Closing Arguments: P, then D, gives closing arguments (burden of persuasion: more likely than not), then P goes a 2nd time.
8. Jury Instructions (51): judge gives jury legal standards before or after argument or both (lawyers get b4 closing args)
a. Key Point: statements of applicable law to guide their determinations
b. Requests for Instructions: generally submitted to the court by lawyers at final pre-trial conference
c. Objections: must object if judge submits instructions you do not want
d. Special Instructions: judges not obligated to give them (e.g. res ipsa) unless parties specifically ask for it
9. Jury Deliberations & Verdict
a. General Verdict: jury finds for P or D and in the amount of $X (used in most cases)
b. Alternative Verdicts (Rule 49): alternative forms to black & white to ensure jury follows rules for specific elements
i. Special Interrogatories (49A): special interrogatories given to the jury for which it makes a decision
ii. Rule 49b: general verdict plus special interrogatories creates a basis for verdict and a general verdict
*Objections: must object to the form of the verdict before it goes to the jury
c. Ds vs. Ps: Ps want general verdicts (jury freedom), Ds want special interrogatories (additional hurdles to liability)
d. Inconsistencies: when special interrogatories answers are inconsistent w/ general verdict, court may enter judgment in
accordance with the interrogatories, or send interrogatories back to the jury, or order a new trial.
C. Trial by Judge
1. Rule 52: requires judges to issue findings of fact & conclusions of law (spell out reasoning to allow COA to review findings)
2. Review Standard: upheld unless clearly erroneous (less deferential than overturning jury verdict if no reasonable jury could
have held a certain way or a judge’s abuse of discretion in upholding verdict cuz of deference to & preference for juries)
D. Summary Judgment
1. Rule: no genuine issue as to any material fact (Rule 56) & moving party is entitled to a judgment as a matter of law
a. Factual Issues: proximate cause, reasonableness of notice, due care exercised
b. Legal Issues: interpretation of corporate resolution, whether P is a public figure, res judicata
*Key: whether issue is better left to juries or judges
2. Basic Standard: no reasonable jury could rule for the non-moving party if the evidence were presented at trial
3. Incorporate Standard of Persuasion: applied at SJ stage (e.g. preponderance, clear and convincing)
a. Example: apply clear-&-convincing standard (heightened) to grant SJ in libel suit Anderson v. Liberty Lobby (1986)
4. Moving Party Burden: showing no genuine issue of material fact (e.g. admissible evidence or that which stands in its place)
a. Claim of Insufficient Evidence: D can move for SJ, say P needed to produce evidence by clear & adequate discovery
requests yet produced nothing on point (Celotex asbestos suit where P provided no evidence of exposure for prox cause)
b. Impeach Testimony: D can execute affidavits (or akin) to impeach P’s testimony if P has burden of persuasion
5. Burden Shifts to Responding Party: showing genuine issues of material fact requiring jury resolution (e.g. evidence or akin)
a. Witness Credibility: SJ not appropriate cuz imbalance of witnesses for jury to decide (1 for P, 15 for D)
b. Circumstantial Evidence: SJ not appropriate cuz evidence can create issue of fact (didn’t see light, but traffic stopped)
c. Complaint / Hearsay Insufficient: SJ appropriate cuz P can’t just say light was red, but must execute an affidavit
6. Judge’s Role: whether a reasonable jury could find for non-moving party based on evidence offered & standard of proof
7. Timeline: Complaint, 12B6, SJ, Trial, JML pre-verdict, Verdict, JML post-verdict
8. Evidence Required: burden of meeting summary judgment allows only evidence that can be admitted (e.g. affidavits)
9. Ds vs. Ps: easier for D to prevail on SJ cuz D only needs to debunk any element of claim, but P prevails only if a jury could
reasonably rule for them on all elements
E. Motions for Judgment as a Matter of Law (Directed Verdicts, JNOV)
1. Chronology (50): after all evidence is offered or renewed after jury verdict only if made pre-verdict before jury retired
a. Jury Verdicts Re-Examined: under 7th amdt. judge can only overturn juries where judges did it at C/L
b. Effect: w/ any reason to dispute verdict, file a pre-verdict motion for JML & renew w/in 10 days of ruling
c. Reasons 4 JML: disagree about whether evidence proves legal standard, evidence so overwhelmingly favors 1 side
2. Process: either party can move for JML, though typically D (cuz P has burden of persuasion whereas D only has to undermine
any 1 prong of P’s claim), suggesting that no reasonable jury could find for the other party
3. Standard: JML okay only if no reasonable jury could find for non-moving party (judge shouldn’t substitute her judgment for
credibility of witnesses or weight of the evidence)
4. Courts: judges tend to wait for jury verdicts to come in to avoid new trials (COA just reinstates jury verdict)
5. Judge vs. Jury: what actually happened (jury) vs. whether it’s beyond reason for a jury to have decided the way it did (judge).
6. Dividing Line: jury can pick 1 of several plausible theories but can’t merely guess absent evidence (Lavendar hobo/train hook)
7. Specific Requirements (50)
a. Improper if D has yet to present its case and evidence
b. Improper to file post-verdict if party didn’t move for JML at close of all evidence before case was submitted to jury
c. Improper to make mere general statement cuz not sufficient (“P just hasn’t proved her case”)
d. Improper to file JML post-judgment after 10 days
e. Improper for a court to grant JML on its own pre-verdict or post-verdict (party must file for it)
F. New Trials
1. Rule 59: may be granted to any party 4 any/all issues 4 any reason new trials have been granted in actions at law in US courts
2. Rationale: court strongly disagrees w/ jury’s verdict due to error of law/fact (verdict’s against great weight of the evidence)
a. Standard: allows trial court to weigh evidence, judge credibility (not technically allowed in JML)
b. Difference of Degree: in JML judge completely convinced weight so favors one side, whereas in a new trial judge
somewhat convinced great weight favors one side (e.g. jury entitled to overlook testimony, but seemed false Dadurian)
c. Reasons: error during trial (judge, lawyers, parties, jury) or verdict is against great weight of the evidence
d. Errors of Law: errors by judge (improper jury instructions or admission of evidence that affects outcome); errors by
lawyers (any mention of liability insurance, contact w/ jurors); errors by party (contact w/ jurors); errors by jury
3. Timing: following judgment, file w/in 10 days (JML or motion for new trial or both)
4. Standard of Review: TC (verdict against clear weight of evidence) vs. COA review of new trial denial (abuse of discretion)
5. Conditional Grants of New Trial: if damages “shock the conscious” judge can ask P to accept less (remittitur) or D to accept
more (additur) or he’ll grant a new trial motion (note: remittitur allowed in fed courts but additur is not)
6. Damages vs. Liability: judges often send back damages for re-litigation accepting liability (Ps will want to re-litigate both)
G. Motion to Set Aside Judgment
1. W/in 1 Year (60B): can motion to set aside judgment w/in 1 year for extraordinary circumstances like new evidence, fraud
2. After 1 Year (Rule 60B): can bring independent action for relief from fraud of other party (w/held docs properly requested)
III. ASCERTAINING THE APPLICABLE LAW
A. Federal Enacted Law (nothing to do with Erie really)
1. Does Federal Law Preempt (Conflict With) State Law?
*Supremacy Clause: federal law wins if there’s a clear conflict w/ state law (so long as federal law’s valid)
*Rules of Decision Act: apply state law unless C, statute, treaty preempts (note: fed courts can apply fed procedure)
a. Clear Conflict: fed says X, state says not X – fed wins (X); fed allows 5 parts pollution, state allows 10 – fed wins (5)
(Federal Purpose Test: will the federal law work properly as it is designed to work in conjunction with state law)
i. Jury Re-Examination: 7th amdt doesn’t permit degree of de novo review which NY law allows, so 7th amdt
preempts & governs otherwise app. courts could freely re-examine & overturn jury verdicts (Gasperini)
-Dissent: making fed judges decide damages de novo usurps jury when FRCP 59 applies & should
control (a new trial may be granted for any reason previously been granted e.g. “shocks conscience”)
ii. FRCP 3: no conflict cuz FRCP read narrowly & not meant to affect state SOLs (Walker v. Armco Steel)
b. Mandating State Law vs. Federal Discretion: if federal law allows discretion, a state law mandating something
conflicts with it because it intends to take away discretion
i. AL law requiring 10% penalty on unsuccessful appeals conflicts w/ fed rule giving courts discretion to
impose penalty on frivolous appeals cuz it denies discretion to courts (Burlington Northern v. Woods)
ii. AL bar on forum transfer conflicts w/ fed §1404 venue change rule giving courts discretion (Stuart v. Rico)
c. Occupying the Field: if fed law is intended as a definitive list, state law can’t add to it cuz it would frustrate fed intent
(e.g. add prohibitions on union campaigns, permitting pleading of certain damages when fed doesn’t require it)
2. Is Federal Law Valid?
a. Constitutional?
b. If FRCP, Does It Violate Rules Enabling Act?
i. Standard (Substantive vs. Procedural): can’t abridge, modify, or enlarge substantive right (& preserve jury)
-Reality: okay if arguably procedural (administer remedy/enforce right but not create remedy/right)
-Rationale: more deferential due to court’s Art III powers augmented by Congress N&P power to
legislate/supplement other branches’ power, & statutes/FRCPs thoroughly debated/vetted)
ii. Housekeeping Rules Allowed (implied Art III power): housekeeping rules for fed courts okay even though
some will inevitably differ from comparable state rules so long as they don’t alter/amend substantive rights
iii. Service (Procedural): in clear/unavoidable clash between FRCP (allowing substituted service) & MA law
(requiring in hand service), court held FRCP 4 doesn’t exceed bounds of REA or C, is merely a housekeeping
rule regulating procedure allowed by N&P clause, & unlikely to lead to forum shopping (Hanna v. Plumer)
iv. Attorney’s Fees: court has decided that this is too substantive to be permitted under FRCP
B. Federal Common Law (Erie analysis)
1. Would Use of Federal Common Law Rule Violate Twin Aims of Erie?
a. Forum Shopping? (concerns: predictably outcome determinative, would lead to flocking to federal court)
i. Standard (Substantive vs. Procedural): if it will predictably cause forum shopping, the court will not allow it
-Reality: less deferential cuz court’s relying on its implied Art III powers to trump state sovereignty
iii. Outcome Determinative (SOL): precludes fed court from giving a state-created claim longer life than it
would have in state court (Guaranty v. York)
iv. Outcome Determinative (Limiting Damages): precludes $ recovery in fed court (shocks conscience) much
larger than allowed in state court (deviates materially) cuz standards would cause forum shopping (Gasperini)
b. Unfair Administration of Law?
i. Standard: avoiding potential for state & fed courts in same state reaching different outcomes w/ same facts
ii. Inequity Example: inequitable for fed court to refuse new trial where a state law would be bound to grant it
(e.g. CO law grants new trial for jury instruction error even if not asked for while FRCP 51 will not grant a
new trial unless jury instructions were objected to)
C. More on Choice of Law in Federal Court, Swift v. Tyson, and Erie RR
1. Distinguish: fed general C/L not ok (non-preemptive fed law used only in diversity) fed C/L ok (authorized by C or statute)
2. Procedure vs. Substance: prior to 1938 (FRCP), federal courts applied state procedural rules and federal substantive law,
whereas after 1938 they applied federal procedural rules and state substantive law.
3. Rules of Decision Act (1789): laws of the several states, except where the C or U.S. treaties or Acts of Congress otherwise
require or provide, shall be regarded as rules in decisions in civil actions in US courts in cases where they apply.
4. Swift v. Tyson (1842): when NY law forbid suit for fraudulent checks & emerging federal C/L allowed it, court held that
federal courts in diversity cases need not in matters of general law (e.g. non-local) apply state court decisions (judges’ decisions
are not law of the several states cuz natural law exists w/o respect to judges and can’t be 1 thing in Rome and another in Athens)
a. What Law Is: state statutes/constitutions, & matters of local law, whereas general C/L (e.g. commercial/tort law) is
merely seeking to uncover natural law and can be better ascertained by federal courts
b. Problems
i. Parties could evade damaging state law (B&Y taxi reincorporated in TN to avoid K voided under KY C/L)
ii. Lack of uniformity or predictability (no clear line between general and local law – extensive litigation)
iii. Unequal protection of law (relocating parties got power to select state/fed ct & benefit of applicable law)
5. Erie Railroad Co. v. Tompkins (1938): held that absent matters governed by C or acts of Congress, applicable law is state law
whether statutes or C/L in case of negligence suit against railroad where PA C/L imposed no duty to undiscovered trespassers,
and federal court general C/L imposed a general duty of care for open notorious use of RR by trespassers (overruled Swift)
a. What Law Is: laws of several states includes all their law including state C/L (judges make law)
b. Limited Fed Govt: no authority for general federal C/L since supervision over leg/jud action of states not permissible
unless expressly authorized by C or Congress and here would impede uniformity
c. Rationales for Overruling Swift: discrimination, unfair forum shopping, lack of uniformity, unC interpretation (C
grants only enumerated powers & there’s no affirmative authorization to Congress for creating general fed C/L)
d. Exception for Conflicts Between 2 States: C creates implied power to create independent fed general C/L to umpire
disputes where each state’s law would bias itself, but otherwise, diversity only meant to create unbiased forum not law
6. State Law Application (choice of law / conflict of law) federal courts must use conflict rules of state in which it sits (Klaxon)
D. Interpreting State Law: fed courts apply state law as interpreted by its supreme court (e.g. follow on point recent state SC decisions)
1. General Idea: put yourself in place of judge in state court system & do what that state SC would do
2. Tricky Situation: old state SC decision never overruled, but all other states have rejected it & developed more modern rule
3. Certification: 2/3 of states allow fed judges to certify issue to state court for a decision to avoid making a decision on which
there is no clear precedent or on a difficult issue.
4. Finality: can be more important than just result e.g. state law change doesn’t always offer grounds for relief under Rule 60B
(motion to set aside judgment) when fed court made wrong decision based on impression of NY law (recovery for stolen painting
requires reasonable diligence), but NY COA in unrelated subsequent case held no reasonable diligence requirement DeWeerth
E. Other Streams That Flow from Erie
1. Substantive Federal C/L (authorized by C or statute: admiralty, suits btw different states, govt. Ks, collective bargaining)
2. Choice of Law: use conflicts law of state in which you are sitting to decide what substantive law to apply (Klaxon)
IV. PRECLUSION (RESPECT FOR JUDGMENTS)
A. Whose Preclusion Law Applies (Inter-System Preclusion)?
1. State-State: full faith & credit clause of C applies (State B must give FF&C to State A’s judgment so long as PJ in Case #1 i.e.
apply state #1’s preclusion law - give at least as much preclusive effect as original state would allow & probably same effect)
2. State-Fed: full faith & credit act (Fed Ct must give FF&C to State Ct’s judgment i.e. apply state #1’s preclusion law)
-Civil Rights Exception?: Case 1: state crim (search & seizure), Case 2: fed civil rights (S&S) - 42 USC §1983 intended
to take civil rights actions out of state courts, so some possibility it supersedes FF&CA (& thus issue not precluded ?)
3. Fed-State: supremacy clause (State Ct must respect fed judgment from Fed Ct under Sup CL, i.e. apply fed preclusion law)
4. Fed-Fed: fed C/L governs- incorporate preclusion law of state where fed court is (i.e. apply fed preclusion law from case #1)
*Diversity: use preclusion law of state where fed court is (i.e. fed law governs but fed C/L used is state preclusion law of case 1)
B. Does the Party Asserting Preclusion in Case #2 Want to Prevent a Claim or Issue From Case #1 From Being Relitigated?
1. Did the party asserting preclusion already bring a claim against the other party? If so it won’t want claim preclusion
2. Did the party asserting preclusion already lose on the issue in Case #1? If so it won’t want issue preclusion
3. Did the party against whom preclusion is being asserted win the issue in Case #1? If so it won’t want issue preclusion
4. Was the party asserting preclusion already a party to a transactionally related claim? If so it won’t want rule preclusion
C. Claim Preclusion (Res Judicata)
1. Goals: fairness (not exposing parties to endless litigation) & efficiency/finality (not bogging courts down in endless litigation)
2. Application: applies to every claim that could have been litigated (e.g. you could’ve / did already sue us for this, too late now)
3. Requirements (made or waived)
*Question #1: is there a claim the party asserting claim preclusion would even want to prevent from being re-litigated
(e.g. if Joe wants to sue Sally for negligence in Case #2, Joe will not want to argue claim preclusion in Case #2)?
a. Same Parties (or in privity) (same claimant in case #1 that’s bound: e.g. A v. B A v. B not A v. B B v. A)
i. Privity: original party has the right to represent another – representational privity (e.g. trustee, executor of
estate, guardian, class action) or transactional privity in which rights are inherited (e.g. property buyer)
b. Same Claim
i. Formulas: same transaction or occurrence (sameness of evidence test), wrongful act test, primary rights test
-Cab collision causing property damage, loss of cab’s use, & personal injuries (Carter v. Hinkle)
ii. Related Claims (A v. B): A must join all transactionally related claims against B for purposes of claim
preclusion and B must assert all transactionally related counterclaims for purposes of FRCP Rule 13A.
c. Quality of Judgment: Final, Valid, and On the Merits
i. Final: final judgment of trial court (e.g. already “final” even if pending on appeal)
ii. Valid: rendered with proper SMJ, PJ (e.g. collateral attacks)
iii. On the Merits: as opposed to a procedural dismissal such as lack of PJ, venue, notice, service, SMJ (note:
summary judgment, JML, default judgment, and dismissal for failure to state a claim are on the merits)
4. Waivable Affirmative Defense: claim preclusion must be asserted or it is waived
6. K Accrual Claims: one claim includes all amounts owed under a K at time claimant files suit even if its for multiple payments
/ installments under K (must file for all accumulated breaches), but P doesn’t have to wait for the end of all installments to sue.
7. Acceleration Clause: lets P collect entire amount owed on car payments for a breach. If D misses payments 3 and 4 out of 10
& P collects payments for 3 & 4, P can’t subsequently sue for a missed payment 7 cuz P could’ve claimed all $ in earlier suit.
8. Settlement Agreements: courts generally hold that you are not claim precluded when you’ve reached a settlement agreement
on part of a case (e.g. who owns land) w/ respect to rest of case (e.g. amount of damages) *atty should explicitly reserve right
9. Consent Judgments: split among courts as to whether or not such a judgment (e.g. who owns land) bars the litigants from
litigating the rest of the case (e.g. amount of damages) *atty should explicitly reserve right to continue to litigate
10. 12B6 Dismissals: if P amends complaint after 12B6, most federal courts allow D to successfully assert claim preclusion
11. Factors involved in deciding not to pursue all claims at once: smallness of amount or value of property in controversy,
difficulty of obtaining necessary evidence, expense of litigation, party’s situation at the time
D. Rule Preclusion: must assert all transactionally related counterclaims for purposes of FRCP Rule 13A (compulsory counterclaims)
E. Issue Preclusion (Collateral Estoppel)
1. Goals: avoid re-litigating issues for the benefit of judicial economy and the parties involved
2. Application: applies only to issues that have been litigated (e.g. a court already decided this issue – shouldn’t be re-litigated)
3. Requirements (made or waived?)
*Question #1: is there an issue the party asserting IP would even want to prevent from being re-litigated (e.g. if Joe was
held negligent by a court in Case #1, Joe will not want to argue issue preclusion in Case #2)?
a. Same Issue: same facts applied under same legal standard (functional determination based on fact & substantive law)
*Changes in law or facts bar issue preclusion unless case #2 has a lower standard of proof
i. Negligence: one issue no matter what variety of negligence is raised
ii. Contract Validity: may be several separate issues (e.g. illegality, improperly executed)
iii. Legal Issues: no issue preclusion on purely legal issue (law can change)
iv. Application of Facts to Law: is subject to issue preclusion (e.g. whether D was negligent)
b. Actually Litigated in Case #1: matter actually argued and decided in case #1 (includes SJ, JML)
i. Default Judgment: nothing will be issue precluded cuz no issues were actually litigated in a default judgment
c. Necessary to the Judgment in Case #1: finding had to support the judgment in case #1 and be necessary to it
i. Concern For Serious Jury Consideration (special verdicts may be enough for serious consideration)
ii. Winner Has No Right to Appeal
iii. Example: Rios’ (winner) negligence below offered no opportunity for him to appeal issue of his own
negligence & jury may not have as seriously considered his negligence since it wasn’t essential in case #1
iv. Hypothetical
-Case #1: Sally v. Joe special verdict that Joe was not negligent, yet Sally was negligent so Joe wins
-Case #2: Joe v. Sally - not clear if either issue was necessary to result (courts split on preclusion)
*Preclude: both issues (RoJ 1); neither issue (RoJ 2 - jury may not have taken both issues seriously)
d. Party against whom it is asserted present in case #1 with full and fair opportunity to litigate the issue: general due
process rule is if you weren’t there, you are not bound
i. Every Party Gets a Day in Court: 13 asbestos manufacturers not bound cuz they didn’t have full/fair
opportunity to litigate after 6 other asbestos manufacturers found liable Hardy
-Consider Exceptions: party controlled litigation, legal representative (e.g. trustee), privity (e.g.
successive property owners), interest adequately represented (very limited)
ii. Disparate Damages: (case #1 $1,000; case #2 $1,000,000) a court will not accept issue preclusion as a bar
iii. Disparate Procedures: no discovery, no right to a lawyer, no jury trial (e.g. small claims court)
e. Quality of Judgment: final, valid, and on the merits of that issue
i. Final: final judgment of trial court (e.g. already “final” even if pending on appeal)
ii. Valid: rendered with proper SMJ, PJ (e.g. collateral attacks)
iii. On the Merits: as opposed to a procedural dismissal such as lack of PJ, venue, notice, service, SMJ (note:
summary judgment, JML, default judgment, and dismissal for failure to state a claim are on the merits)
4. Mutuality: Person Asserting Preclusion (Defensive or Offensive)
a. Historically: issue preclusion could be used only by someone who was a party to case #1
b. Rationale / Rule: party who can’t be hurt by a prior judgment shouldn’t be entitled to take advantage of it
c. Defensive Non-Mutual IP (ok): asserted by a D in Case #2 who was not a party in Case #1 against a P from Case #1
(e.g. different patent infringer)
d. Rationale: bars Ps getting 2nd apple bite & encourages joining of all Ds for efficiency (e.g. all patent infringers)
i. Case #1: Patent Holder v. Alleged Infringer #1: court invalidates patent
ii. Case #2: Patent Holder v. Alleged Infringer #2: wants court to preclude issue of patent’s invalidity
e. Offensive Non-Mutual IP (may be okay): asserted by a P in Case #2 who was not a party in Case #1 against a D from
Case #1 (e.g. injured passenger in mass tort) *also applies to co-defendants in case #1
i. Concerns: judicial inefficiency (free rider Ps allowing most sympathetic case to go 1st to take advantage of a
victory but not be bound by a defeat) and unfairness to D (avoid being bound by anomalous loss, no chance to
pick forum, or lack of incentive to litigate vigorously)
i. Did P avoid Case #1 for tactical reasons?
ii. Did D have an incentive to litigate in Case #1?
a. Significant enough issues/stakes
b. Foreseeability of further/future litigation
iii. Would it provide inconsistent judgments? If so, courts won’t allow issue preclusion (e.g. mass tort w/
anomaly such as cases #1-10 for D, case #11 for P, no issue preclusion for cases #12 and thereafter)
*Is it the first judgment on the issue? If so, courts will consider how high the stakes are (e.g. 300 injured Ps) &
may not allow IP until a few more cases are decided (e.g. some proportionality w/ # of Ps and the stakes)
v. Did procedural disadvantages in Case #1 limit D’s ability to defend? (e.g. no discovery, no jury)
*Example (Parklane): court allows offensive non-mutual IP cuz Parklane had every incentive to litigate SEC
lawsuit fully/vigorously & shareholders had no opportunity to join injunctive SEC action in case #1.
V. APPEALS
A Introduction to Appeals
A. Basic Idea: mechanism for re-examining judgments by a higher level of judiciary (though not a C right in civil or crim cases)
B. Rationales: proper application of law, uniformity, legitimacy of judicial decisions, institutional sharing of responsibilities,
ensuring development/evolution of law
C. Scope: 20% of civil judgments appealed, 21% of appealed cases reversed (4% of all cases), Ds win reversal in 31% Ps in 13%
B. Timing of Appeals (28 USC §1291): no review until a final judgment is issued
1. Not Immediately Appealable (interlocutory): denials of motions to dismiss, discovery, motions to transfer, admissibility of
evidence, PJ, forum non conveniens, decertifying class, Rule 37 Sanctions (bar attys who’ve delayed from slowing case further)
2. Immediately Appealable: grants of motions to dismiss, contempt orders
3. Exceptions to Final Judgment Rule
a. FRCP Rule 54B: requires certification by TC on dismissing separate claim or separate party
i. Same Claim (not immediately appealable): damages & liability, court denies P’s request to amend complaint
to add 2nd P, dismissing 1 theory of recovery (court nixes P’s strict liability claim, but not negligence claim)
ii. Separate Claims (immediately appealable): claim (breach of K) & counterclaim (K violates anti-trust law), 2
Ps sue 1 D and claim of 1 P dismissed, different damages (car accident, assault, and defamation, but court
dismisses defamation claim)
b. Collateral Order Rule (3 requirements)
i. a significant issue
ii. separate from the merits of the case, and
iii. effectively unreviewable on the merits at the time you would appeal the final judgment
*Immediately Appeable: immunity (intended to protect exec official from having to litigate at all)
*Not Immediately Appeable: personal jurisdiction (avoiding having property taken away can be protected on
appeal), Rule 37 sanctions (would allow attys to delay case more Cunningham), Forum Non Conveniens (TC
best able to make judgment & reversed only for abuse of discretion), Decertifying Class Action (Coopers)
c. Injunctions (granting, modifying, or denying them §1292A): cuz irreparable injury’s at issue waiting is not an option
d. Discretionary Appeals (rare §1292B): certification by TC judge requiring all 4:
i. a controlling issue of law
ii. substantial grounds for difference of opinion on that issue
iii. immediate appeal will encourage more rapid disposition of the case
iv. and court of appeals has discretion to take the case or not.
*Factual determinations not certifiable
*Example: w/ a totally novel issue of law, a TC might certify it rather than holding a lengthy trial cuz COA
might dismiss it for failure to state a claim and it would have been a waste of time & resources.
e. Mandamus: a C/L writ that a court must take certain action (used rarely & only when TC totally oversteps its bounds)
B. Scope of Appeal (not intended to correct every mistake, but only those errors that affect outcome of the case)
1. Error on Record: error that you’re protesting must be clearly on the trial record
2. Prompt Objection on Record: must object to error promptly & objection must be on record (i.e. right after objectionable ?)
3. No New Issues: may not raise issues for the first time on appeal
4. No Appeals of Harmless Error: may not appeal harmless error (e.g. if it didn’t affect the result, it is not appealable)
5. Winner Can’t Appeal: only parties aggrieved by judgment can appeal (but winner can appeal bad part of result- denied IIED)
C. Cross Appeals: appealing cuz you want something different from the judgment (when in doubt cross appeal)
1. Rule: if loser appeals, winner may respond by raising any issue sustaining the judgment even if it wasn’t raised below or basis
for the trial court’s decision (but can’t raise new facts), but must cross appeal to change the judgment in any way
2. Winning Party: limited to raising issues that support the judgment unless she files a cross appeal
3. Example: Insured v. Insurance Co. – coverage question – TC rules 1) no coverage under policy, 2) no reformation of policy, 3)
insurance company estopped from denying coverage
a. Insured (winning party): can argue on appeal that policy covered act (another reason that supports TC judgment) but
must cross-appeal on attorney’s fees (new issue) and policy reformation (would create wholly new K)
D. Standard of Review: how much deference TC is going to be given by the COA on review (e.g. anew, great deference)
1. De Novo (no deference): issues of law, JML, SJ
2. Discovery rulings, motions to transfers: abuse of discretion (most deferential)
3. Factual issues (depends)
a. Judges Findings (Rule 52): clearly erroneous, COA must have definite & firm conviction that trial judge was wrong
b. Juries Findings: no reasonable jury could have found as it did (more deference given to jury than to judge)
4. New Trial (depends)
a. Matters of law: COA reviews de novo (e.g. admissibility of evidence)
b. Matters of fact: COA reviews under abuse of discretion (e.g. against great weight of the evidence)
