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Civil Procedure IFall 1999 - Prof. Buss

Joseph Ferraro

I. Service of Process - FRCP 4A. Service of Process is often used to refer to the delivery to a party or witness of various court orders required by

the relevant rules of law to be served upon him, including subpoenas, writs, and other orders that are entered in the course of litigation. Issue here is initial notice.

B. 14th Amendment Due Process Notice Rule (Mullane v. Central Hanover Bank):Reasonable efforts to provide notice. Notice must be reasonably calculated, under all circumstances, to inform interested parties of the pendency of the action and afford them an opportunity to present their objections (appear & be heard). Must be inside constitutional minimum.Purpose - assure that s have a chance to respond, highlights purpose of rules in general: To commence the

“just speedy and inexpensive determination of actions” – FRCP Rule 1C. Considerations:

a. Speed – interest of P to commence actionb. Quality – interest of D, fairness (justice for D), interest of P too avoid risk of mistake & keep

process movingD. Factors: Process requires efficiency

1) Reliability (P -- probability)2) Cost (C): $$ of delivery & redelivery and passage of time (e.g. landlord rent loss in Greene due to

cumbersome service)3) Interests at stake (I)

E. Formula: insufficient if Calternative means - Ccurrent means < (Palt - Pcur) (I)(increase in cost) < (increase in reliability times interest at stake)

F. Notice in Greene how procedure is important because procedure can always affect the substance of a case.

Case - Greene v. Lindsay - Supr.Ct. - Posting of summonses on apartment doors in eviction actions, pulled down in Ky. housing project by kids. Due Process requires that means of process be “reasonably calculated under all the circumstances” (RCUAC) to give notice to s. “Merely posting notice on an apartment door does not satisfy minimum standards of due process. S.Ct. held that due process must go further than posting, perhaps mail, though S.Ct. cannot say what means – dissent attacks superiority of this method. , state deprived class s of property w/o due process of law and posting statute = unconst. O’Connor dissent: inadequate record to overturn Ky. statute as unconst. w/o better proof--conflicting testimony.

Mail problems: 1) not 100% reliable, 2) proof of service missing [get response even with waiver 4(d)(2)]

Examples – (1) E-mail service: would that be enough? Decent reliability (P) but not sure we’d get the right person: name issue under 4(a); (2) parking ticket on windshield

G. FRCP 4 – Summons: The What, Who & How4(a): The Form(Contents) – clerk signature; seal of court; ID court & parties; directed to state name & address of P’s attorney or P is not represented; time w/in which D must appear; notification of judgment by default if no appearance.4(b): Issuance – Upon or after filing complaint, P can present summons. If OK clerk will sign and copy sent to defendant(s).4(c)(1): What docs? Summons & complaint served together. P responsible for furnishing 120 days after filing (m).4(c)(2): Who serves? Service effected by any person who is not a party and is at least 18. can request a U.S. Marshall or other specially appointed officer.4(d)(2): Waiver of Service Process – Whoever is subject to service “has a duty to avoid unnecessary costs of serving the summons” rare ethical component. Can do this through solicitation of waiver of all technicalities by sending defendant 2 copies of notice of action & request of waiver of formal service of summons & complaint.To avoid costs, notice and request to waive must be:

Civil Procedure I - Fall 1999 - Prof. Buss – Joseph Ferraro

(A) in writing and addressed to (B) sent via 1st-class mail or “other reliable means”(C) accompanied by copy of complaint & identify court in which filed(D) inform D of consequences of compliance & failure to comply(E) include date on which request sent(F) allow D reasonable time to return waiver (30 days from date)(G) give D extra copy of notice & request & prepaid means of compliance

If D fails to comply with waiver, court imposes costs imposed in effecting service on D unless good cause for failure be shown . [Also see 4(d)(5)]

4(d)(3): Response Reward – If D timely returns waiver, gets 60 days rather than usual 20 to respond to complaint.4(d)(4): Waiver, cont. When P files waiver, action proceeds as if summons and complaint had been served & no proof of service required.4(d)(5): Failure to comply, cont. Costs for non-compliant D = cost of effecting service, w/ costs, incl. reasonable attorneys fees, of any motion required to collect costs of service.4(e): How?, Service on Individual Defendant: Service upon anyone from whom waiver not obtained, other than a child or an incompetent person, demands a response.

(1) Alternative to Below: Pursuant to law of the state in which district court is located OR in which service is effected – P can chose this or below, whatever he wants.

(2) 3 Traditional Methods: (A) Delivering to individual personally, (B) leaving copies at dwelling or usual place of abode w/ person of suitable age and discretion residing therein, (C) to agent authorized by appointment or by law to receive service of process (corporations). REMEMBER WHO: 4(c)(2)

OTHER RULES NOT DISCUSSED IN CLASS

Issue: 4(e) as it is now is result of 1993 Amendment that did away with sharp distinction between state OR Federal rules choice. Now P has more flexibility to separate Who [(4(c)(2)] and How [4(e)(1)]. Feds say don’t have to worry about qualifications of state if don’t want to – can pick and chose state and Fed Rules for what you want.

II. History of Procedural SystemA. Common Law Pleading Derived from system of medieval English government Basic premise: royal judicial power limited, king’s courts the extraordinary outside everyday courts First has to explain why grievance one of concern to the king – came to be crimes against the peace. Opened

door for certain forms of civil liability. Trespass vi et armis – any wrong with force of arms. When had this, breached peace and, therefore, had lay under jurisdiction of king’s courts

After establish jurisdiction, then state the claim – could cause what seemed like repetition in pleading. [Like F.R.C.P 8(a)]

Gradually such recitations that gave case king’s court jurisdiction became formulas bearing little relationship to facts of the suit.

After all this done, royal court had to decide what to do with case. Court would separate 2 kinds of disputes

1. those focusing on law – settle by judges2. those focusing on fact – settle by jury

Unlike now, this meant pleading forced parties to stake whole case on either law or fact. Went from oral to written process.

Meant limited # of responses to allegations:1. Jurisdiction challenge – “Not here”2. Pleas in suspension – “Not now”3. Pleas in abatement – “Not like this”

None approach merits of case – dilatory pleas, (D) delayed suit, maybe permanently, but did not resolve merits If these options didn’t work to get rid of suit, defendant then had to decide to rest on facts (deny them or plead

additional ones) or law. Possibilities:1. demurrer – “So what?” Concede truth, challenge legal sufficiency2. traverse – “Not true” Concede legal sufficiency, deny facts3. plea of confession & avoidance – “Yes, but” Concede law and fact, but allege additional facts

that change their significance. All called “peremptory pleas”


Great in theory but in practice created generally defined dispute. E.g. What if defendant didn’t commit armed violence? Common law begins expanding royal jurisdiction, stretching categories growing out of core cases. Sufficient closeness.

Each category had own Writ (P) – command to sheriff to summon defendant to respond to plaintiff’s grievance. Contained formula describing category of behavior court would concern selves with. They were:

1. trespass (& subcategories)2. debt (recover sums owed)3. covenant (contract breaches)4. ejectment (recover land unlawfully occupied)5. trover and replevin (unlawful takings of personal property)6. assumpsit (breaches of oral contract)

In practice, preemptory pleas were not contained to rigid categories. French v. Baker example demonstrates addition of “special plea of self defense” combines traverse w/ confession and avoidance.

- “Replication de injuria” allowed plaintiff same latitude – courts OK with this once decided issues were factual, because up to juries to meddle through

Writ system created sophisticated and specialized conception of procedure in which each claim had own procedural form. Much attention to form of writ, e.g. of writ of debt, “wage of law” & “oath helpers” and move to a trespass writ – indebitatus assumpsit.

B. Equity – Procedure in Chancery Court When common law could not bring lawsuit to satisfactory conclusion, move to Court of Chancery Dealt with cases for which royal courts were not adequate – grew by happenstance. Decreed many special remedies – specific performance and injunctions v. torts, also for fraud Mortgage – right of redemption to debtor in pressing circumstances, when abused led to right of foreclosure for

creditor – closed right of redemption Chancery gave debtor credit for amount paid, lender had to give him that amount from sale proceeds. Equity in property = debtor’s interest, court came to be known as court of equity, & doctrines those of equity Trusts another procedural remedy With no juries, chanceries relied on extensive written depositions –ancestor of modern discovery practice. Brought about subpoena compelling testimony & joined all optimal parties Suit in equity required both demonstration of royal jurisdiction AND that ordinary royal court did not offer

adequate remedy, even if $$ damages (persists today)

C. Common Law v. Equity1. Common Law Advantages

1. Defined dispute2. Fast3. Fair – very evenhanded if everyone follows same rules & keep out bias

2. Common Law Disadvantages1. Skewed claim by forcing it into categories where it didn’t really fit, hiding nature of real dispute: Artificial simplification2. Issues may be of fact and law3. May exclude some valid disputes due to formality4. Bad at gathering info before trial (discovery) to handle multi-party disputes

3. Equity Advantages1. More fair, individualized results2. Allows for complex cases of law and equity, not stuck in rigid formalism3. Good at gathering pre-trial info and handle multi-party disputes

4. Equity Disadvantages1. Cumbersome and takes forever2. Allows too much discretion – uneven process allows for bias


3. Bad at producing complete resolution

D. Contributions of Both to Modern System1. Common Law

a. Pleading procedure Formal, set procedure: complaint, response, motions, etc. Goal = to agree about nature of dispute Properly frame/set up dispute for discovery Categorical definition of legal claims

b. Summary Judgment Legal decision only Judge can clean up, throw out cases allowed in by generous pleading system

2. Equitya. Discovery

Detailed, lengthy Balances simplicity of pleading Bad because expensive, time-consuming

Reform discovery? Decrease fishing, expense

Federal Rules combine elements of both, permitting extensive pre-trial fact gathering (discovery) and broadening joinder of claims

III. Code Pleading Started in 19th Century, inspired by Populist sentiment to make law more flexible and accessible to the people. States enacted statutes to govern the procedures in their courts – requirements are code pleading. First was Field Code of 1848 in New York; still followed in states like NY, CA, IL In those states must follow pleading rules set out in state’s “Code” but no technical language required Abolished forms of action (strict legal theory) & eliminated law and equity distinction Replaced form with Cause of Action = group of facts giving rise to one or more causes of complaint (whole

claim). Need to know substantive law to know what needs to be included.E.g. Contract claim elements:

1. Binding K2. Plaintiff performed3. Defendant failed to perform

1-3 = Cause of Action Requires allegation of facts, i.e. plead facts showing a legal right or wrong: gives D notice and allows court info

to allow it to strike or dismiss legally insufficient claims. Complaint inadequate if:

1) fails to allege anything pertaining to elements of law in question (No facts and no conclusions of law )2) states conclusions of law pertaining to an element but no facts (No facts, only conclusions) (Gillispie) 3) mentions fact that, even if proven, are not legally sufficient to satisfy elements of law (Yes facts &

conclusions but no match to a substantive claim) Like old common law pleading:

1) have to have ‘right’ facts 2) couldn’t be too specific or vague

Case - Gillispie v. Goodyear Service Stores - Sup.Ct. of NC - NC = code pldg state. Trial ct. granted leave to amend b/c complaint was dismissed for failure to state fact sufficient for a cause of action. Pleadings must state facts and not conclusions of law. P must show facts sufficient to show D’s legal duty and its violation and injury to P so judge & D may know the right D asserts. No facts upon which the legal conclusions of negligence can be based or predicated stated No names even mentioned! there is no factual basis to which court can apply law.

Marked a shift in requirements of pleadings = shift in function (pleading stage changed from central to content of litigation to merely giving notice to Ct. & s (discovery became central to litigation)


III. Federal Notice Pleading (1938) - FRCP 8(a) & FRCP 8(e)-8(f)

A. Federal Rules of Civil Procedure (FRCP) govern procedure in all federal district courts and many states that adopted them.

B. Comparison with Code PleadingSimilarities with Code Pleading1. Merger of law and equity – FRCP 12. Gets away from arcane complexities & technicalities of common law and equitable proceedings.3. Clear & simple articulation of legal grievances4. Important to know substantive law in question in order to draft a complaint that addresses all elements

of the law & that will survive a motion to dismiss (demurrer).

Primary difference: FRCP 8 allows pleading of conclusions of law. (not stated explicitly) Distinction between allegations of fact and conclusions of law can be blurry (hazard of Code

Pleading) Still, Courts applying rules will reject some complaints as too conclusory, despite Rules’ allowance

of pleading of some conclusions (hazard of pleading under the Rules)

A complaint that is sufficient under the Code will satisfy the Rules.The Rules allow for pleading of conclusions that is not permitted under the Code.

5. Complaint inadequate if: 1) fails to allege anything (facts of conclusions of law) re: element of law, 2) (No facts, just conclusions) N/A3) mentions fact that, if proven, are not legally sufficient to satisfy elements of law.

NOTE 1: Complaint 2 from Code Pleading not inadequate so long as conclusions alleged are sufficient to inform defendant and the court, in general terms, of nature of the claim.

NOTE 2: Defects 1 & 2 can be corrected by redrafting complaint. Defect 3 fatal – reveals P has no case. Courts can’t always tell if Defect 3 is there, so might grant leave to amend. After this, court may dismiss case with prejudice (prevent refilling) based on determination there is no set of facts/conclusions that P can allege that are legally sufficient.

6. Conley v. Gibson standard:1) S.Ct. said some pleading of conclusions of law = accepted under FRCP. 2) “Complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the can prove no set of facts in support of his claim that would entitle him to relief.”

3) Very generous standard for pldgs under FRCP.

7. Such notice pleading is possible b/c liberal opportunity for discovery & pretrial procedures to define more narrowly the disputed facts & issues.

8. Generally = abuse of discretion for Ct. to fail to grant leave to amend complaint on 12(b)(6).9. General rule of thumb = cover all elements of claim with concl. or, if have them, facts to be safe

C. Notice Pleading in General(Rule 8(a)(2) = “Short and Plain Statement of Claim”)1. Purposes

a. Just give notice to D Underlying facts covered in discovery. Formulation of issues for trial covered in pre-trial conference. Weeding out sham claims is covered in summary judgment

b. Expose areas of controversy2. Principles

a. Spirit of FRCP is to facilitate a proper decision on the merits. Technicalities should not thwart this. But we still have questions of detail!


b. Don’t dismiss claims altogether unless can’t prove beyond doubt that there is no claim for relief based on the facts. At least dismiss with leave to refile Rannels v. S.E. Nichols = jeans/bad check: Inartful drafting

Factual allegations should be construed liberally to support elements of “malicious prosecution” claim. These are:

1) favorable termination of a criminal procescution2) absence of probable cause for criminal prosecution3) defendant’s malice in pursuing criminal prosecution

Case - Rannels v. S.E. Nichols, Inc. - U.S. Dist.Ct. for E.D.Pa. – ’s claim for malic. prosec. re: bad checks must only state gen’l facts suffic. to present elements neces. to support cause of action. Dist.Ct. erred in dismissal via 12(b)(6) for failure to state facts not concl., acc. to Ct.App., thereby imposing Code pldg req. on FRCP.

3. In Practice a. Conclusions of law are permitted, but concept of notice encourages giving enough

information (i.e., facts) to give a sense of the circumstances from which the grievance arose Duncan v. AT&T = jumbled race discrimination claim w/no statement of race –

substantive flaw!! “When a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.” – O’Brien v. DiGraziaFacts must be clearly stated and sufficient to back up elements of claim

Case - Duncan v. AT&T (pp. 405-407) - S.D.N.Y. - Still have to worry about defects of type (1)--where allege no fact or concl.--under the FRCP. Ct. held poorly pleaded claims can’t be accepted as true if: (1) so poorly composed as to = illegible (grammar, etc.) and 2) so baldly conclusory as to fail to give note of the basic events and circumstance of which complains. Duncan’s complaint deficient in both respects. Dismissed by FRCP 12(b)(6) b/c failed to even state her race in §1981 claim & facts so obscured that Ct. can’t even suggest corrections. Must at least broadly plead facts or concl. to satisfy each element of the charge.

b. P must give enough info to allow D to frame an answer and commence discovery Remember Gillespie v. Goodyear = trespass claim w/no specific facts

Legal conclusions only. No identification of who, where or when incident took place. Impossible for D to respond to or to commence discovery

D. Notice Pleading in Practice: The Complaint1. 3 Elements

Three parts must be satisfied -- Rule 8(a)(1) Grounds for jurisdiction(2) Short and plain statement of the claim – Rule 8(a)(2)

Functional test: Will court and adversary know what the claim is about? Technical test: Are all elements satisfied?

(Duncan complaint dismissed in part for failure to plead race)(3) Demand for relief -- Rule 8(a)(3)

2. Why to keep it simple ? (Why plead only (vague) conclusions of law?)a. If you can’t be sure to prove facts, keep them outb. Case might just be weak & can’t do any more.c. If info you need in D’s hands & P thinks he’s been wronged becomes strategy.d. Don’t reveal whole strategy in complaint. Keep some key facts to yourselfe. Discovery will be more in-depth (esp. automatic discovery) for every fact alleged

w/particularity – will get info you need from D then (fishing expedition)f. Drag out for better settlement

3. Why to be specific ? (Why plead facts if only need conclusions of law?)a. Not sensible to cut it too close under above approach.b. Efficiency – may be beneficial to get to settlement or summary judgment fasterc. Want to be sure claim goes throughd. Start off well w/court & judge – persuade them 1st time they see casee. Intimidate other side w/strong claim


f. Discovery – keep it limited to just what is at issue. Otherwise other side could go digging broadly and find harmful other info

g. D will have to admit or deny each fact from very particular allegations (automatic disclosure) – those they admit don’t have to be proved at trial so save time – make them reveal more

h. Can be writing for public & press to read – can influence settlement

4. Consistency in Pleading (Pleading in the Alternative) – Rule 8(e)(2)a) When 2 or more statements are made in the alternative, one’s insuffic. does not mean all are

insuffic.;b) party may also state as many separate claims or defenses as party has regardless of consistency

and whether based on legal, equitable, or maritime claims;c) all made subject to FRCP 11, so still must be aware of unsupported claims.

Reasonsa) Pleadings come early, before parties know all facts of case. So lawyer setting forth what’s best

possible version of law before discovery (Keep eye to Rule 11 though)b) Allegations in pldgs are still tempered by burden of proof.c) Must settle on one version of story b/f trial to persuade jury or judge and look competent.d) Inevitable result of system that requires att’ys to make all allegations b/f all facts are known.e) Pleading is meant to frame the issue, set it up for relief. It is not yet about being convincing or

successfulf) Want to allow parties to develop meritorious claimsg) Lawyers want to establish any colorable claims in case Defense can dismiss any of them

Recap: FRCP 8 - General Rules of Pleading(a) Claims of Relief -

(1) short & plain statement of the grounds upon which ct.’s jurisdiction depends; (2) short & plain statement of claim showing pleader is entitled to relief; (3) demand for judgment for relief sought.

(a) - May demand relief in the alternative or of several different types.(e)(1) - no technical forms or legal theories required. – “simple, concise & direct.”(e)(2) - need not plead consistent theories.(f) - all pldgs construed to do substantive justice.

III. Pleading Sanctions - FRCP 11A. Purpose – check on liberal notice pleading standard& deterrence - impose limits on attorneys going forward w/ useless, uninvestigated claims. I.e. Deters filing of claims that have no basis in law or fact. Rule 11 does caution

s to ensure they have a bona fide claim, but this is not about $$ compensation for offended party. Also deters devious harassers.

B. Principle 1. Offending conduct need only be unreasonable – diligence and candor required.2. Conduct need not be willful or intentional – Rule 11 punishes honest beliefs that turn out to be

mistaken (better to err on this side)C. History

1. Before 1983, Rule 11 was very soft – pretty much just read complaint and weeded out harassers, but even sanctions soft with a violation.

2. 1983 Amendment – adds subjective requirement of reasonable inquiry: court SHALL impose sanctions (only really mentioned attorney’s fees). W/ mandatory nature, lawyers began worrying about excessive chilling

3. 1993 Amendment – sanctions are options and $$ goes to courts, not adversary.D. Application – Signature requirement - applies to all signed docs

4. Signature required on all written pleadings. – 11(a)5. Signature represents to court that the pleading is “to the best of the [filer’s] knowledge, information, and

belief, formed after a reasonable inquiry under the circumstances.” -- 11(b) Means complaint must have factual basis beyond opinion or speculation


Claim is not presented for an improper purpose such as to harass, delay or increase costs – 11(b)(1) Claim is nonfrivolous and “warranted by existing law” – 11(b)(2) Claim has “evidentiary support,” i.e. based on well-grounded fact, or is likely to after further

investigation and discovery – 11(b)(3)Case - Business Guides v. Chromatic Communications Enterprises - S.Ct. (1991: came under 1983 amendment) - complained of 10 seeds in competitor’s directory & sought TRO. District Court clerk found out 9 were not copyright infringement at all. Case referred to Magistrate who found 1) TRO filing, while w/o proper research, was not sanctionable due to urgent need to act quickly; 2) failure to inquire about accuracy after learned of Clerk’s discovery sanctionable. Parties and att’ys may be sanctioned under FRCP 11 where complaint is filed with insufficient research that would easily have shown claims are groundless, and where parties repeatedly fail to correct erroneous filing. No bad faith, but Rule 11 violated, acc.. to magistrate, Fined amount of Chromatic legal expenses and costs. “The standard of conduct under Rule 11 is one of objective reasonableness.” 11(b)(3) broadly construed = loophole rendering Rule 11 meaningless

narrowly construed = blocked access to discovery for meritorious lawsuits Denials of factual contentions are warranted on evidence or are reasonably based on lack of

information or belief. – 11(b)(4)6. Considerations

a) How urgent? How much time is reasonable to inquire given circumstances?b) Does the P lawyer depend on the client for information?c) Does he depend on other law firm/counsel?

E. Initiation -- 11(c)(1)(A)&(B)1. By motion of opposing party2. On court’s initiative (Safe Harbor does not apply!)

F. When imposed1. If court determines any of 11(b) is violated, may impose sanctions on violating attorneys, law firms, or parties – 11(c)2. Do give notice and a reasonable opportunity to respond3. Safe Harbor – 11(c)(1)(A)

After service of Rule 11 motion, party has 21 days to correct or withdraw the challenged item Prevents “chilling” of filing of questionable but merited claims for fear of sanctions. Allows time for lawyers to try to work things out themselves. Problem: conflicts with complaint response time – D must file answer within 20 days (Rule 12(a))

but Safe Harbor is 21 days – offending complaint remains unchanged before answer is due. Should D have to answer a meritless claim? D could waive service of process and extend response time to 60 days Note: P controls whether D even has this option (Rule 4(d)(2))—could stick D on the 20 day clock. In such an instance court can extend/adjust time period for answer (Rule 6(b)).

E. Sanctions1. “reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” – 11(c)(1)(A)2. “limited to what is sufficient to deter repetition of such conduct or conduct by others similarly situated” –

11(c)(2)3. Nonmonetary = strike paper, reprimand or censure, order participation in seminars: preferable4. Monetary = fine payable to court (for deterrence, NOT compensation), reasonable or partial attorney’s fees

if warranted for deterrent effect. NOTE: Not applicable for 11(b)(2) violations made by parties with legal representation.

5. Usually sanctions are non-monetary due to focus on deterrence as well as elimination of $$ incentive for parties to file Rule 11 motions.

6. Remember – sanctions are always and option, not a requirement.G. Notes on Rule 11:

1) If a lawyer learns after filing the complaint that the facts alleged were incorrect, lawyer doesn’t have to file amended complaint, but must not continue to advocate the position. (“later

advocating,” 11(b)) Remember Business Guides.

2) If other party has some of necessary information, under Rule 11(b)(3) must say only “are likely” to have evidentiary support. Ct.’s discretion on what is “likely.” Possible loophole to law--if taken too


narrowly, blocks access to discov. by good suits; if too broadly, loophole makes rule meaningless.

3) Threats of frivolous law suits are not covered under Rule 11, only when there is a signed paper. 4) Rule 11 reaches conduct that is merely negligent (reas. standard), not willful (intent-based standard)

and imposes affirm. requirements of diligence and candor. Even so, court has other power (inherent powers) to impose punishment for improper behavior.

5) Rule 11 applies only to in-court actions, embodied in a final document, by lawyers and parties

E. Rule 11 v. Rule 12(b)(6)Why go w/ FRCP 12(b)(6) over FRCP 11?1) case is dismissed if successful2) stops the clock on answer indefinitely until motion to dismiss resolved3) don’t have to complain about opponents--deals only w/ facial matters & is more professional

Why go with FRCP 11 over FRCP 12(b)(6)?1) calls Ct.’s attention to really bad behavior of opponent (but Ct. could be annoyed if sketchy call)2) goal may = want Ct. to know you have this concern about opponent’s behavior3) may want sanctions or threat thereof to get opponents to clean up their act

12(b)(6) focuses on substance, Rule 11 on people

Recap: FRCP 11 - Signing of Docs; Representations to Court; Sanctions(a) Att’y must sign all docs(b) Signature certifies that attorney will NOT file frivolous pleadings and with signature of every document, the

attorney verifies that:(1) Must not harass or delay opponent;(2) Must be warranted by existing law or reas. extension of law--can see own folly in implaus. rdg. of

law;(3) Claims must have evidentiary support;(4) Denials or factual contentions are warranted on the evidence.

(c) Sanctions(1) Initiated by either:

(A) opposing party - discretionary by Ct. to award att’ys fees under 11(c)(2) provides a “safe harbor” of withdrawing frivolous motion/claim within 21 days after

service by opposition of a motion for sanctions(B) Court’s own initiative

(2) Sanction limited to what will deter repetition of sloppy or unethical work(A) Sloppy legal work (11(b)(2) violations) may not result in sanctions against clients--it’s

lawyer’s responsibility to follow the law in representing clients.(d) Rule 11 does not apply to discovery.

IV. Particularized Pleading (Civil Rights Cases)

A. Liberal principles of notice pleading are limited by nature of some claims. Certain types of claim require more specificity (i.e. fraud, mistake claims) – Rule 9(b)

B. Civil rights claims do NOT require heightened specificity, because process of pleading can be used to play out and narrow the issue

42 U.S.C. §1983 allows suits against individuals who (1) deprive Ds of a constitutional right (2) while acting “under color of state law”

Supreme Court allows a “qualified immunity” affirmative defense if the individual or entity was acting under reasonable misapprehension of the law

C. Leatherman v. Tarrant County Narcotics Unit: (1993) “FRCP do not require a claimant to set out in detail the facts upon which he bases his claim.” Civil right Ps do not require more specific pleading in cases involving government entities as Ds. Until FRCP include it, you can’t. Rejects “heightened pleading standard” articulated by some circuit courts. But, left open question of whether qualified immunity available to individual


government officials justified heightened pleading requirements in cases where individual government officials were sued.D. Qualified immunity for individuals:

1) right of government officials not to stand trial (no pleadings nor discovery, not just liability) -- ? of no litigation at all

2) if actions deprived constitutional rights while acting under color of law, person was under reasonable misapprehension of law

E. Schultea v. Wood (§1983 case) (5th Circ. Only) “Short and plain” standard applies to civil rights claims, too P does not have to anticipate and specifically plead against a “qualified immunity” affirmative

defense If and after Defense is raised in answer, though, P may have to reply and include greater

specificity of pleading Therefore, Schultea creates an additional burden on pleading after following the initial pleading

burden in 8(a). Up to court to require more detailed reply. Court guards the gate to discovery. How much of a difference additional pleading burden here will make depends upon whether district

courts permit limited discovery prior to the filing of the reply (Schultea doesn’t anticipate until after)

Case - Schultea v. Wood 5th Cir. - If city fired police chief b/c honestly believed that it had the right to do so, then heightened pleading standards are required, either through the initial pleading, or an answer to the initial pleading under Rule 8. i.e. Schultea still fits under 8(a)(2) but adds an additional pleading burden to the if raises the affirmative defense of qualified immunity. By requiring or strongly encouraging Dist.Cts. to order a detailed FRCP 7(a) reply to an answer raising aff. def. of qual. imm., 5th Cir. purports to guard gates of discovery. May be less burdensome to s if Dist.Ct. lets s do discovery b/f reply, though 5th Cir. doesn’t envision this and yet don’t req. to plead qual. imm. w/ specificity so that s can respond re: misappr. of law when s have info. on this.

V. Burden of PleadingA. Three burdens (usually go together):

1) burden of pleading--must allege each element & cannot expect other party to do so2) burden of production--must produce evidence at trial that tends to demonstrate proposition at stake3) burden of proof/persuasion--must persuade trier of fact by standard of proof (BARD or preponderance)

B. Important because if plead, have to produce evidence to prove; burden of proof then often determines who wins or loses casesC. Four rationales for allocating burdens, used variably in areas of law (no logic underscores system of assignment):

1) burden on party likely to have easiest access to knowledge about the matter in question, i.e. that can produce/satisfy burden most easily & in best position to know (fairness).

2) burden on the party asserting the improbable3) policy considerations (which side do we want to win the case--give burden to presumptive loser)4) Statutory language (i.e. §1983 only requires 2 allegations to create a cause of action)

D. Effects of burdens1) If doesn’t plead elements which it has burden to plead, ’s complaint will be dismissed2) If doesn’t allege elements or defenses which are ’s burden, waives that defense3) burden of pleading generally tracks burden of proof4) burden of proof decides close cases5) risk of overpleading = may take on burden of proof if you assume burden of pleading unnecessarily

Case - Gomez v. Toledo –(1980) predates Schultea - S.Ct. - cop brought § 1983 suit against supervisor for dismissing w/o due process. must plead affirmative defense of good faith regarding qualified immunity because must plead elements of any affirmative defense and prove them --> shifts burden to D; beliefs of = peculiarly w/in ’s knowledge; § 1983 doesn’t include elements of bad faith or qualified immunity and must only plead facts necessary under statute; and policy dictates that not have disadvantage where Cong. passed law to vindicate important right of . Rehnquist concur. says Gomez doesn’t decide if or should have burden of persuasion re: qual. imm.


VI. Responding to a Complaint - FRCP 7, FRCP 8(b)-8(d), & FRCP 12A. FRCP 7(a) : A motion is a request to the court for an order.

“there shall be a complaint and an answer; a reply to a counterclaim denominated as such;an answer to a cross-claim, if the answer contains a cross-claim…”

Ct. may order a reply to an answer – otherwise no other pleading. 7(b) – make any motions in writing unless made during a hearing or trial. Motion = 4 different documents:

1) Motion itself, i.e. request for the specific relief sought2) Notice of motion, i.e. document telling opposing party when motion will be heard (Form 19)(In SDNY 1 & 2 are one document)3) Affidavit setting forth any factual information necessary for granting the motion.4) Memorandum of law explaining, with reference to supporting authorities, legal basis for motion.

B. Two responses for :1) Pre-answer Motion--only allowed one (FRCP 12(g)) and supposed to raise all can in this motion. or

some defenses are waived (FRCP 12(h)(1)).2) Answer

C. Purposes of responses:1) reasons why Ct. should not proceed (i.e. failure to join indispensable party - FRCP 19)2) questions of whether sufficient legal claim is made (FRCP 12(b)(6))3) denials (FRCP 8(b))4) affirmative defenses (FRCP 8(c))5) requests for clarification and more info. (FRCP 12(e))

NOTE: All but (5), requests for clarif., may be included in answer. 12(b) permits certain defenses to be raised by pre-answer motion.

D. PRE-ANSWER MOTION (FRCP 12 – a demurrer in common law):1) Alternative to answering the complaint & entirely optional.2) Must be made b/f answer is due (20, 60 or 90 days depending on the mode and circumstances of service

of process) & before pleading if a further pleading is permitted (12(b)).3) If files pre-answer mn., does not need to answer a complaint until 10 days after a notice that:

a) Ct. has denied motion, or b) Ct. has postponed disposition of the motion until the trial on the merits [12(a)(4)(A)], orc) Ct. has granted motion for a more definitive statement. 12(a)(4)(B)

4) Allowed early b/c:a) don’t raise factual issues relevant to merits of underlying litigation (which require further

development/ testing through discovery, summary judgment and/or trial)b) go to appropriateness of Ct. hearing case at all

c) because of a) & b), Rules encourage defendants to raise these issues early, to clear out as many cases as possible before the court, parties and attorneys expend more resources on the litigation & clean up early procedural defects (i.e. insuffic. Service).

5) Seven defenses available in FRCP 12(b):(b)(1) - lack of subject matter jurisdiction – immediately fatal(b)(2) - lack of personal jurisdiction – immediately fatal(b)(3) - improper venue – immediately fatal(b)(4) - insufficiency of process (summons itself) – curable w/ corrective order(b)(5) - insufficiency of service of process – curable w/ corrective order(b)(6) - failure to state a claim upon which relief can be granted – see 7)(b)(7) - failure to join any party under FRCP 19 – curable w/ corrective order

Insufficiency of process = court’s summons itself is somehow defective in form or content. FRCP 4(a).Insufficiency of service of process = way in which complaint & summons delivered to is somehow

defective. FRCP 4(b).NOTE: These can be raised in either pre-trial motion or in answer, but keep an eye to ordering!6) Consolidation of 12(b) motions: Rule 12(g)&(h) – Applicable to both pre-answer motions & answers

All 12(b) motions must be consolidated into first response filing (pre-answer motion, answer, or amendment thereto) except (1), (6) and (7). 12(b)(1), 12(b)(6) & 12(b)(7) are


core issues and can be raised at any time, b/f answers, in answer, after all pldgs are in as a request for judgment on the pldgs, or at trial – 12(h)(2) & (3)

If 12(b) motions are NOT made in first response filing, rules 12(g) and 12(h) provide that 12(b)(2) - 12(b)(5) are then waived.

Rule 12(b)(6) in particular is not waived to get beyond old rigidities of common law system – If D really has committed no legal wrong, she should not be held to waive this basic defense by the mere failure to raise it at the beginning of the suit. Also, may not be easy to determine whether a complaint fails to state a claim at the outset.

7) Purpose Provides speed and finality of each stage – prevents bad tactics & wasted judicial resources. Also clears out invalid claims right away – efficient to avoid cost & expense of commencing

discovery for invalid claim Justice – Fairness to D not to have to defend v. invalid claim. NOTE: When court gets motion to dismiss, it has no time frame within which it must

respond.8) Effects of Rule 12(b) pre-answer motions:

a) if denied, has 10 days to answerb) if granted, case is usually dismissed, or wait for to comply w/ Ct.’s order.

* This can be a strong tactical advantage for D – not have to admit damaging allegations or undertake discovery.

c) usually, 12(b)(6), granted leave to amend complaint before entire case is dismissed if P just failed to plead an element that exists.

d) BUT, if there is no way to cure the complaint’s defect b/c the facts do not support a necessary element of the claim OR the law just doesn’t recognize this kind of claim, ’s complaint is dismissed w/ prejudice

9) Types of motions:1) 12(b)(6) - failure to state a claim upon which relief can be granted (applies as a 12(b)(6) only when made in a pre-answer motion, otherwise = just motion for failure to state a claim)

Challenges the merits/legal sufficiency of a complaint. “Assuming the facts alleged are true, is the complaint sufficient as a matter of law?”

Should be granted when:o P states claim that doesn’t exist under current lawo P has failed to allege all elements of a cognizable legal claim

Court only considers the complaint in evaluating this motiono If matters outside the complaint are brought in, motion is treated as one for

Summary Judgment under Rule 56 (12(b)) This means factual issues are likely to be relatively simple & generally presented through

affidavits (occasionally through depositions, or an evidentiary hearing). Pleadings must be liberally construed in favor of sustaining the complaint: If all

allegations are true and can be proven, will P have a cause of action?o Give P benefit of the doubt – give him a chance to demonstrate a meritorious

claim Amendment – Rule 15(a) (see below too) – “Freely given when justice so requires.”

o Liberal policy – want to allow meritorious claimso If 12(b) motion to dismiss granted before answer is filed, P may automatically

amend (once only)o If 12(b) motion to dismiss granted after answer has been filed, P must get

permission of court to amend.REMEMBER: 12(b) motions compared to Rule 11 sanctionsa. Rule 11 = improper purpose, frivolous legal claim, no evidentiary factual support. 12(b) = insufficient legal claim, no cause of actionb. Why 12(b) motion?

Faster dismissal (no safe harbor waiting) “Stops clock” on claim – judge may sit on 12(b)(6) motion and try to decide, extends

answer/response time. Rule 11 motions pend while claim proceeds


Easier to get 12(b)(6) motion granted. Rule 11 motions for sanctions less likely to be granted

Rule 11 annoys court – it is more adversarial. If you just want to get rid of complaint, no revenge/sanctioning, use 12(b)(6)

c. Why Rule 11 sanctions? Party might get money Party might want to be adversarial/seek revenge

2. 12(c) - Motion for judgment on the pleadings – Same as 12(b)(6) but made after pleadings closed; used as a delayed 12(b)(6) on complaint alone or a challenge to legal sufficiency of complaint in light of particular defenses raised in answer)3. 12(d) – provides for a preliminary hearing on any of the defenses in 12(b) but does not provide a timetable – some sort of pretrial conference takes place (Rule 16).4. 12(e) - Motion for more definite statement. Complaint is so vague or ambiguous you can’t reasonably expect a response or know how to commence discovery. Rarely used, b/c so vague & discovery used to provide info, usually 12(b)(6) is invoked. 5. 12(f) - Motion to strike extraneous language or scandalous matter, but rarely used as well.

NOTE: Rule 12(g)’s consolidation requirement applies to 12(e) & (f)6. 12(g) - Only one pre-answer motion allowed. All claims must be joined in that single

motion. 7. 12(h)(1) - All other defenses waived by having been omitted from that motion unless first document is the answer (no pre-answer mn.). These are less core issues.

8. 12(h)(2) Exceptions - failure to join an indispensable party may be raised later in any FRCP 7(1) pleading motion for judgment on the pleadings, or at trial. So, too, w/ failure to state a claim upon which relief can be granted (12(b)(6)) and objection of failure to state a legal defense. These are more core issues. Motion for judgment on the pleadings = a non pre-answer 12(b)(6).

9. 12(h)(3) - subject matter jurisdiction may be raised at any time through “suggestion,” not “motion.” (like a letter) – some judges nit-pickers about this. Creates a kind of exception to 12(g).

10) Remember: If answered, cannot later raise for the first time the defenses of: lack of personal jurisd., improper venue, insuffic. of process, insuffic. of service of process.

E. ANSWER1) Timing: 12(a) – If cannot 12(b)(6) a complaint or dispose of it via FRCP 12(b), must respond to

factual allegations, w/in 20 days of service (if not filing a pre-answer motion) or 60 days if service waived, with either:

a) denial (old traverse), orb) affirmative defense (old plea in confession and avoidance)

2) Denialsa) FRCP 8(b)

i) may deny only those allegations that heactually disputes, admit those knows = true

ii) should state if he is w/o knowledge or information sufficient to form a belief re: truth of allegation = a denial (subject to good faith)

iii) should deny w/ specificity, rarely can offer a complete or general denial (would be subject to Rule 11) – extremely few cases arise in which D can deny each and every allegation or everything except specified paragraphs. Courts dislike general denials see Zielinski): require parties to spend needless time ferreting out real items in dispute. Gets at issue of fairly meeting substance of allegations & narrowing them.

b) FRCP 8(d) - any allegation not denied is deemed admitted

Case - Zielinski v. Philadelphia Piers, Inc. - Dist.Ct. of E.D. Pa. - generally denied allegation in paragraph though much was true, with the only mistake being who owned the forklift – no bad faith though. The statute of limitations had run, so could not sue correct CCIwhy D didn’t voluntarily dismiss suit (Rule 41(a)) and file new complaint], but (equitably) estopped from dismissing claim where took advantage of mistake it knew about. “Untrue” jury instructions allowed – only way judge can administer justice: waiving SoL is vs. legislature. Insurer, real party in interest, the same for both PPI and CCI – allow to get around prejudice issue discussed below.


must offer more specific denial under FRCP 8(b) so that may know what denies and here that sued wrong Eye on the merits – court wouldn’t have been willing to do this is didn’t believe charge was true.

3) Affirmative defenses - FRCP 8(c)a) aff. def. is not a negation of ’s allegations but a raising of new facts that modify effects of

’s allegations, even if ’s allegations re: facts are true. (i.e., yes, entered land but not legally trespass b/c had express permission through an easement -- see Layman) This is different from the qualified immunity defense which has a maybe … but construction.

b) must be pled w/in answer (b/f trial) b/c:i) shouldn’t be surprised at trial--should know what to prepare for at trial, and

ii) determines which party has burdens-- should have it when requiring new evid. and facts & info. to change legal picture (burden of proof tracks burden of pldg)

c) if mistakenly pled as counterclaim or pled a counterclaim as an aff. def., Ct. may treat pldg as proper designation if justice so requires.

d) if unsure, should plead aff. def. and not as denials to avoid any waivers.e) FRCP 8(c) is not an exhaustive list of affirmative defenses.

Case - Layman v. SWB Tel. Co.- Mo. Ct.App. - Ct.App. ordered new trial after trial ct. failed to sustain ’s objection to raising affirmative defense for 1st time at trial. ‘s contention that easement is not an affirmative defense to allegation of trespass = false. must state in answer that they are arguing an affirmative defense, as laid out in FRCP 8(c).

4) Reply – FRCP 7(a) - cannot reply to an aff. def. w/o a court order (see Schultea) in acc. w/ FRCP 7(a); may only reply to a counter-claim (Rule 13); may respond to and deny aff. def. at trial, but reply not technically required. FRCP 8(d). Most lawyers will want to reply to affirmative defense.

VII. Amendments to pleadings - FRCP 15A. very liberal--can, if w/o objection, amend during or after trial or add new evid. or issues at trialB. Justification: prelim. defin. of issue may change as suit develops and discov. turns up new facts – gives reduced role to pleading, but with limitationsC. FRCP 15(a) – Right to Amend – Applies to complaints and answers:

1) “A party may amend its pldg once as a matter of course at any time b/f a responsive pldg is served” 2) “or, if the pldg is one to which no responsive pldg is permitted and the action has not been placed

upon the trial calendar, the party may so amend it at any time w/in 20 days after it is served.”3) “Otherwise, a party may amend the party’s pleading only by leave of Ct. or by written consent of

adverse party; and leave shall be given when justice so requires.”D. Rule 15(a) requires:

1) that the would be amending party should have good reason for not getting pldg right originally 2) that allowing the change should not hurt the other side too much (prejudice).E. Prejudice = primary inquiry re: amend. by other party--will be worse off than if pled at first not than if not at allF. Factors in prejudice inquiry:

1) time-related matters (i.e. stat. of limit.)--change over time re: greater prejudice? 2) dilatory delay/undue delay 3) bad faith attempt to amend 4) futility (even if amend, won’t have desired effect party seeks)

5) repeated failure to cure when had opportunity

NOTE: Standard of review on appeal = abuse of discretion

Case - Beeck v. Aquaslide ‘N’ Dive - 8th Cir. - Issue: Could slide manufacturer amend its answer after it stated throughout its interrogatories that it had indeed manufactured the slide, when it only later discovered that it had not? Yes. Good faith mistake in original answer. Ct. grants leave to amend because no prejudice found (P can still sue actual manufacturer)and no abuse of discretion by granting separate trial [Rule 42(b)] on issue of manufacture to save time and avoid prejudice of jury wanting to reward sympathetic P out of D’s big pockets. Debatable, because time passed makes it hard for P to find actual manufacturer & SOL may bar suit v them. s later sued Aquaslide for


reckless misrepresentation, since s could not have sued the actual manufact. since the stat. of lim. had run. Must show that (a) they would have recovered from actual manufact. and (b) judgment would have been collectible.

G. Rule 15(b) – Amendment at Trial1. If issues arise later in the process (i.e. at trial) which would technically require amendment, it shall be

permitted unless prejudice can be shown. Sign of flexibility of pleading. Purpose = get at merits.H. Rule 15(c) -- Relation Back & SOL: Two-part test re: amendment:

1) Is amendment appropriate? (FRCP 15(a)) May not be allowed if undue prejudice upon the opposing party, but burden is on party opposing the amendment to show prejudice. (abuse of discretion)

2) If so, and statute of limitations has run, does amendment relate back to original date of pleading? (FRCP 15(c)) (clearly erroneous for notice, should have known/mistake, de novo for relation back to pleading determination)NOTE: Not permitted to cause delay, no bad faith (Rule 11)

I. Purposes of statute of limitations: 1) Avoid stale evidence & protect D from prejudice over passage of time. Evidence erodes--need dependable evidence and witness testimony.

2) afford repose. (Finally stop worrying about matter an put behind him)J. Relating back analysis turns on issue of notice for other party:

1) Ct. will look at the ‘operational facts’ to determine if had enough info. from original pleading to defend the amended pleading.

Amendment “relates back” when the new allegation or defense arose out of the conduct, transaction or occurrence set forth in the original pleading. Same core facts must underlie new pleading – Rule 15(c)(2).

Narrow interpretation by courts:Case - Moore v. Baker - 11th Cir. - Ct. held that patient’s attempt to amend pldg w/ assertion of neglig. during & after surgery did not suffic. relate back to orig. pldg that only faulted Dr. for pre-surgery problems. ’s language in complaint suggested approp. care in problems after surgery & involved diff. time period & very diff. conduct--Dr. informing v. Dr.. operating. Dist.Ct. did not abuse its discretion in denying leave to amend.

Broad interpretation by courts:Case - Bonerb v. Richard J. Caron Foundation - Dist.Ct. for W.D.N.Y - Patient pleaded that ball court where he hurt himself = not well maintained. After getting new counsel, wanted to plead counseling malpractice. Dist.Ct. held amended complaint involved same or similar fact. circumstances, i.e. same nucleus of operative facts and related back and put D on notice.

2) Not a clear concept--could easily argue these cases could come out other way. (Doctor ought to expect malpractice claims and D in a case initially about asphalt isn’t expecting to have counselor’s professional services called into question.) One way of reconciling both: Moore moves from the specific/exotic general whereas Bonerb moves from the general specific/exotic. A D faced with the generic might still be prepared for any exotic permutations.

3) Can even change the parties (Rule 15(c)(3)) that are named as s so long as parties most likely knew or should have known w/in the 120-day period for service of the summons & complaint that they should have been parties sued. (i.e., misspelled names, or cops named, and dep’t later added)Prejudice issue prevents use of this rule in Beeck; not used in Zielinski because 15(c)(3) did not exist then (came along in 1963).

4) can change from normal to exotic claim (Bonerb) b/c s on notice of claim and prepared for more exotic claims but not exotic to normal (Moore) b/c signaled exotic was all you had and you are not going for normal claim presumably b/c you can’t make the claim at all

NOTE: Standard of review on appeal = de novo

FRCP 15 - Amended and Supplemental Pleadings(a) Amendments -- A party may amend the original pleading for 20 days after it is originally served. Otherwise, a

party may amend by leave of Ct. or by written consent of opposing party. A leave shall be freely given when justice so requires. A party shall respond to an amended pleading within the remaining time for response to the original or within 10 days after service, whichever may be longer.


(b) When issues not raised by pleadings are tried, they shall be treated as if they had been raised in the pleadings. An amendment to the pleadings can be made upon motion of any party at any time, even after judgment. The Ct. shall allow amendment freely, as long as it does not prejudice the other party.

(c) Relation Back -- it relates back when:(1) when relation back is permitted by the law that provides the statute of limit. applicable to the action.(2) the clam or defense asserted in the amended pleading arose out of the conduct, transaction or

occurrence set forth in the pleading.(3) change a party--allowed if (2) = met & w/in 120-day summons & complaint service period, correct

party (A) has received notice such that the party will not be prejudiced, and(B) knew or should have known, but for a mistake concerning the identity of the proper party, the

action should have been brought.NOTE: FRCP 15(c)(3) does not directly address amending a complaint to add, not substitute, a .

VIII. Discovery - FRCP 26, FRCP 30, FRCP 33-FRCP 36, & FRCP 37A. Core of FRCP system: get into ct. easily through notice pldg & then use liberal disc. process to fully develop proof

1)Often ends lawsuits b/c:a) turns up facts about merits of claims – alerts parties to strengths & weaknesses of their casesb) very costly and expensive--prices parties out of litigation

2) If doesn’t end lawsuit, narrows & shapes issues for trial, i.e. determines areas of actual dispute.3) As discovery puts flesh on bare-bones case presented in pleadings, amendments usually take place to

conform to evolving understanding of dispute.3) at its worst – used to harass & test financial. & psychological resources--not the cooperative endeavor

FRCP envisioned . At its best a cooperative process - a lot depends on attorney personalities.4) Court’s role = very limited--conducted almost entirely b/w parties w/ little Ct. intervention.

B. The Scope and Limitations of Discovery1) Scope: Rule 26(b)(1) gives parties a right to discover “any matter, not privileged, which is relevant to

the subject matter involved in pending action. … The information sought need not be admissible at trial [like hearsay] if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Relevant is not necessarily admissible--just has to lead to admissible evidence. (Broad Relevance Standard)

2) Relevance grants power and imposes limitations; privilege only imposes limitations where some policy favoring confidentiality is judged more compelling than access to the evidence .

3) Burden on party opposing production to explain why evidence is not relevant under broad standard.4) Limitations: Scope of discover broad unless “otherwise limited by the court.” (Rule 26). Parties often

file motion for protective order under FRCP 26(c):a) After showing of good faith, Ct. can limit disc. “to protect a party or person from annoyance,

embarrassment, oppression or undue burden or expense.”b) Court can limit discovery on own initiative or pursuant to motion for protective order.c) Liberal discovery limited if found: Rule 26(b)(2)

1. discovery sought is unreasonably cumulative or duplicative2. obtainable from some other more convenient and less burdensome source3. party seeking discovery has had ample opportunity already to obtain info. Sought4. burden or expense of proposed discovery outweighs likely benefit

c) Such discovery would be unduly burdensome or expensive in comparison to:1) the needs of the case2) the amount of the controversy3) the limitations of the parties’ resources4) the importance of the issues at stake5) the likely benefit of discovery

d) Factors: need for info., burden & expense of production, potential for revealing intimate facts, potential for use to annoy or intimidate opponent, admissibility of evidence, et

al.


5) Rationale for privileges: created by statute or common law to protect communication in certain relationships b/c we don't want disincentives on people that cause them to worry info. will come out in litig. We’re willing to sacrifice otherwise relevant--maybe very relevant--info.

Policy matter: Confidentiality is considered more compelling than access to the evidence. Privilege is absolute Examples: Doctor-patient, husband-wife, priest-penitent, etc. AND below.

6) Attorney-Client Privilege Extends to ALL communications between attorney and client. Seeks to encourage free information exchange – Fisher v. US Goal of vigorous defense/client’s best interest --effective representation requires full & frank

communication b/w client and attorney. Does NOT extent to facts of the case – otherwise all damaging facts could be hidden by disclosing

them to lawyer. – Upjohn v. US May lead to incomplete disclosure by client – should he tell the truth?? Claiming Privilege – 26(b)(5)

o To assert a privilege claim, party must describe the nature of the document or communication not produced:

In a manner that will enable the other party to assess the applicability of the privilege.

But without revealing the privileged info itselfo Bad faith privilege claims may subject party to Rule 37 sanctions if they are:

Unsubstantiated and Harmful to other party.C. Major tools:

1) Interrogatories (FRCP 33): Good for basic background info, only applies to parties, least expensive but clunky. “Not exceeding 25 in number including all discreet subparts,” unless court allows more under

26(b)(2) – 1993 amendment; in order to reign in abuse Not very effective: difference between questions asked and answers given: ?s drafted and

answered by counsel, often to reveal as little as possible in answers even though the questions are designed to extract information as fully as possible.

If ?s too broad, invite evasive and vague answers; if ?s too narrow, you won’t find out enough info.

No follow-up questions Invite litigation over objections to questions Contention Interrogs = force opponent to specify grounds of claims from pleadings. May be

used only on parties. Can get around damaging questions by answering truthfully but qualifying: “Yes, but…” Interrogs good early in case to help develop a plan for further discovery, especially since

statement not binding at trial.2) Requests for production of documents (FRCP 34)--only applies to parties.

Party may make a written request for documents and things in possession, custody or control of opposing party.

Must describe requested materials with reasonable particularity Source of greatest abuse on both sides b/c can cause too much exposure (needle in the

haystack trick) or tedious effort in going through all of one’s own docs to meet obnoxiously open-ended request.

Rules mandate very broad production but clients seek minimum exposure. Drafted broadly to gather as much as possib. Presumption that any doc w/in Broad Relev. Standard of 26(b)(1) should be produced & party opposing prod. has burden to explain good reason to refuse. May be requested only from parties.

3) Oral Depositions (FRCP 30)--most effective but by far most expensive. Done at end of discovery so have broadest picture of the case. Sworn testimony so witnesses = subject to perjury (FRCP 30(c)). Adv.: a) can see witness, b) ‘uncoached’ so good preview of trial testimony, c) can frame

follow-up questions to previous answers & explore issues in detail, d) gets deponent on the record & committed to a detailed version of the relevant events.


Trial v. discovery deposition = latter used to get info., former is read into record at trial. Can depose anyone.

4) Subpoena Duces Tecum--tells witness to bring relevant docs w/ her to depo.5) Physical or Mental Examinations (FRCP 35)--if parties’ condition is at issue. Very intrusive so must

obtain a ct. order on grounds “for good cause shown.” (FRCP 35(a)) if parties can’t work it out themselves. If claims substantial injury, can usually get one. Must provide copy of report to party if requested. FRCP 35(b)(1) Party only. Anderson insights: small battles related to greater battle over nature of discovery.

6) Requests for Admissions (FRCP 36)--work just like failure to deny or admission in ’s answer to eliminate uncontested issues. Matters admitted narrow scope of proof at trial b/c deemed established for purposes of the case (binding at trial). (36(b)). Not effective often b/c: a) partiesresist admitting damaging facts as far as ethical constraints allow, and b) opponent may move to withdraw admissions if later learn grounds for not having to admit facts. May be requested only from parties.

7) Automatic Disclosure: Recently added (symbolically) to front of discovery rules. Rationale: promotes efficiency, no benefits to parties w/ more clever lawyers to hide the ball, gives info.,

parties will get eventually anyway. BUT have “opt-out” provision” (“except to the extent otherwise stipulated or directed by order or local rule”) as most major Dist.Ct. have done-- have lack of uniformity in FRCP, contrary to Rules’ professed purpose.

Controversy:Many states opt out of automatic disclosure. Why?a. Arguments Pro Automatic Disclosure

i. Efficiency – core info will come out faster, without objections and paperwork delayii. Eliminate “fishing” of opposing party – they will be provided with all relevant info, don’t

need to suspect there is more and go hunting for itiii. Incentive to plead more specifically bc only items related to disputed facts alleged with

particularity must be disclosediv. Existing law already requires that all of this info would come out anyway

b. Arguments Against Automatic Disclosurei. Unnecessary disclosure will be made – better safe (to disclose) than sorry (sanctions under

Rule 37(c))ii. Disclosure required is too early in lawsuit.

Hard to know what all relevant info/people will be Many suits would settle w/little or no discovery at all

iii. Satellite litigation will result (i.e. on topic of what is “relevant” to “disputed facts”)iv. Undermine adversarial nature of system and atty-client relationship.

Atty’s are required to provide to their adversaries info that will be damagingv. Rule 26(a) allows that states may decide to opt out of auto-disclosure

Undermines uniformity purpose of Federal Rules FRCP 26(a)(1)--must disclose names & addresses of persons w/ relevant info. (A), copies of or

descriptions of relevant docs & tangible evidence, (B) computations of damages w/ support. docs, & insurance contracts covering claims of suit (C), by 10 days after 26(f) discov. mtg.

FRCP 26(a)(2) & FRCP 26(a)(3)--As trial nears, also produce reports of experts, names of witnesses to be called at trial, and docs and depos expected to be offered into evidence.

FRCP 26(b)(5) - must state grounds of privilege or protection if expressly claimed FRCP 26(e) imposes duty to supplement inaccur. or incomplete disclosures or disc. responses.FRCP 26(f) requires parties to meet & confer to discuss disclosure and set plan for discovery, b/f

which meeting parties may not use interrogs, requests for prod. or depos.FRCP 26(g)(1) - signature on discl. certifies completeness & correctness after reas. inquiryFRCP 37(c) - sanctions automatic for failure to automatically disclose

8) Motions to Compel (FRCP 37)--burden placed on requesting party when opponent refuses to produce. Court may grant the motion to compel when opposing party:

1. fails to make required disclosure pursuant to 26(a)


2. fails to answer a deposition or interrogatory or refuses request for inspection of documents

a. evasive or incomplete answers are considered failures to disclose.FRCP 37(a)(2)--must first confer w/ opponent informally b/f moving to compel(showing of good-faith effort to resolve matter outside court), but if no resolutions, can move to compel.FRCP 37(a)(4)--if Ct. grants mn., Ct. can order loser pay moving party’s expenses & fees for mn.FRCP 37(a)(4)(C)--can enter prot. order to set scope of disc., bar unwarranted, harassing discov.FRCP 37(b)--if party ignores order granting mn. to compel, authorizes sanctions such as

striking claims, taking disputed facts as established or barring recalcitrant party from establish them, excluding evid., dismissing action, or ordering payment of fees and expenses arising from refusal to comply.

Not used often – only if info sought is deemed very important to case.

D. Work Product Rule – 26(b)(3) (Not absolute)

Case - Hickman v. Taylor – (resulted in the rule –Pro-Lawyer & Conservative) 1947, U.S. S.Ct. - S.Ct. affirmed Ct.App. order that denied ‘s request to view the written statements and mental impressions contained in the files and the mind of an attorney who had deposed a witness. The claim did not state that failure to do so would unduly prejudice the preparation or cause hardship or injustice. Work Product rule not that it was privileged. Party requesting has burden b/c of policy cons. behind rule. “Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney.” Also protects v. turning attorney into witness if summary statements contradict other testimony from same witness.

1) Trial Preparation Materials --Work Product Rule establishes that the thoughts or opinions of an attorney made in preparation for a trial are not discoverable. Privileged material never disc. but at times protected material is.

2) A lawyer will usually have to divulge factual material, but not work product memos which may contain facts; and he does not have to do this on his own initiative. Preserves incentive to vigorously represent client, i.e. let a lawyer pursue legal theories, ideas

and plan, incentive to write things down & prepare and investigate case fully and completely.3) If an employee does an investigation of an accident scene and interviews witnesses, etc., it is

discoverable unless it is proven to be in anticipation of litigation. Also, it must be relevant, not privileged, & must be unable to get information w/o undue hardship and show they have substantial need.

4) A party may obtain, without the required showing, a statement concerning the action or its subject previously made by that party. Upon a request, a person who is not a party may obtain without

the required showing a statement concerning the actor previously made by it. 5) Some Cts. have recognized a privilege of self-critical analysis, which states that a company can review

its procedures and then prevent someone suing them later from having access to the findings.6) If att’y interviews witness who later dies, opposing party must show should have interviewed b/f death.7) FRCP 26(b)(3) – Party MAY NOT obtain discovery done by another party that is reasonably obtainable

by other means. No “freeloading”, e.g. Hickman witness interview, but witnesses still available.BUT, opposing party may see docs & tangible things prepared in anticipation of litig. (i.e. not

just prepared in ordinary course of business, like an accident report, or prepared to avoid litigation) only upon showing:

a) of substantial need by moving party, and b) that party is unable without undue hardship to obtain substantial equivalent (Consider: time

passed, cost, party finances, hostility of witness, great effort/time) . 8) Attorney Work Product: When ordering such materials,Ct. shall protect against disclosure of mental

impressions, conclusions, opinions or legal theories of attorney or other representatives concerning the litig. (Hickman: Atty recollections of talking w/ witnesses, not transcripts) Absolute immunity here to theories, etc. even if no other way to get this information.

9) FRCP 26(b)(3) - Definition of a “statement”: A) a written statement signed or B) a recording or something like it. Rule 26(b)(3) meant to codify and modify Hickman holding.

10) FRCP 26(b)(3) test:a) otherwise discoverable under FRCP 26(b)(1)? (i.e. relevant & not privileged?)


b) If yes, prepared in anticipation of trial?c) i) If no, = discoverable.

ii) If yes, can show substantial need AND undue hardship to obtain substantial equivalent?d) If yes to ii), are mental impressions of lawyer?e) i) If no, 100% discoverable

ii) If yes, discoverable minus mental impressions (just the facts)11) Compared with attorney-client privilege: A-CP is absolute, but WPP is qualified, i.e. underlying facts

not protected, so can lead lawyers to say they don’t want to know facts.

E. Expert Information Expert = person w/ expertise retained for purposes of litigation, NOT just who knows info due to

normal course of business. (See Chiquita)1. Testifying expert witnesses – 26(b)(4)

a. Automatic Disclosure – 26(a)(2)At least 90 days before trial, parties must – 26(a)(2)

identify all testifying expert witnesses provide a detailed written report of each expert’s opinions and bases therefor

opinionsbasis & reasons for opinionsqualificationslist of other cases in which expert has testified

b. Deposing expert witnesses After disclosure, testifying witnesses may be deposed – 26(b)(4)(A)

2. Non-testifying experts (consulted in anticipation of litigation) – 26(b)(4)a. Rule :

Facts/opinions held by non-testifying experts are NOT discoverable by other party Identities of non-testifying witnesses need NOT be automatically disclosed under 26(a),

but may be disclosed and deposed under exceptional circs (see below) Non-testifying witnesses may NOT be interrogated or deposed – 26(b)(4)(B) Facts in non-testifying expert files are discoverable (Chiquita Int’l v. Bolero Reefer)

b. Exceptions : Unless party shows exceptional circumstances that make it impracticable for them to discover

info by other means - No freeloading!- No comparable source of info exists- Exceptional circs may include passage of time (i.e. for mental exam in Thomson v.

Haskall) Reports of court-ordered physical or mental examinations

c. Thompson v. Haskell Co. Non-testifying psychologist retained by prior atty examined P immediately following sex

harassment incident is discoverable Exceptional circumstances:

- Highly probative and relevant, shows P mental state- No other report of comparable value exists - Bc of passage of time, no other means available to obtain comparable report

d. Chiquita International v. M/V Bolero Reefer P hired expert to examine ship and damaged goods when ship came to dock. D not allowed discovery of expert’s recorded observations and opinions even tho expert won’t

testify No exceptional circumstances:

- D could have sent own expert- Failure of D to hire its own expert in a timely manner doesn’t mean it should be able to

freeload off P Facts in expert files are discoverable, tho

Rule Review:


1) FRCP 26(a)(2)(A) - requires that witnesses retained to provide expert testimony be disclosed to the opposing party.

2) FRCP 26(a)(2)(B) - Each disclosure shall include a written report prepared & signed by witness. It shall contain all opinions to be expressed and the reasons therefore; the data or other information

considered, any exhibits used as summary, qualifications of witness - including list of all publications within preceding 10 years, the compensation to be paid and other cases in which the witness has testified as an expert with 4 years.

3) FRCP 26(a)(2)(C) - These disclosures shall be made 90 days prior to the trial date, or if testimony only to rebut another expert witness, then within 30 days.

4) FRCP 26(b)(4)(A) - if expert is to testify, opponent can depose after gets expert’s report5) FRCP 26(b)(4)(B) - non-testifying/consultative experts (b/c not go on stand, already have enough, or

concl. = unfav. to hiring side), who’ve been contracted for litig. are unavailable except throughextraordinary means (i.e. FRCP 35(b) - report of mental/phys. exam.); almost = Work Product

6) FRCP 26(b)(4)(C) - cost-sharing provisions--must pay opponent’s testifying expert when responding to discovery and pay a portion of all of non-testif. expert’s time in consulting on case.

Rationale: if use expert other side identified and might have used but did not, have to pay for time in reaching concl. gen’lly applic. to case but merely prep. for cross-ex if expert testifies for other

side.7) Following cases suggest that a party may not depose a non-testifying expert, even if relevant and

unprivileged, if they had the opportunity to get it themselves:

Case - Thompson v. The Haskell Co. - Dist.Ct. for M.D. of FL - Psychologist’s report was discoverable b/c alleged that she was reduced to an emotionally depressed state after being fired. She saw her psychologist on June 15, and she was fired June 5. The information was ‘highly probative.’ could not obtain info. by other means, as examinations under Rule 35 would not reveal the same info. as those immed. after firing. couldn’t get exam then b/c had not sued and so could not get Ct. order for mental exam. of employee who later sued.

Case - Chiquita International Ltd. v. M/V Bolero Reefer - Dist.Ct. for S.D.N.Y. - cannot depose an engineer (and thus an expert) who inspected boat for damage while boat was docked. also argued that even if he is an expert, he should be allowed to be deposed b/c he was the only one to inspect. Ct. rules that engineer = expert even though did his own investigating (that does not make him a ‘fact witness’) and that, b/c Reefer had opportunity to look at boat themselves, they should not be rewarded for failing to do so by freeloading off ’s hiring of expert. The only thing that can get is docs that gave to the engineer, not what the engineer gave to .

FRCP 26(b) - Discovery Scopes & Limits(b)(1) - relevant and not privileged standard(b)(2) - scope of Ct.’s power to issue limitations on discovery(b)(3) - trial prep. exceptions to gen’l rules - may discover underlying facts but not work product(b)(4) - trial prep. exceptions to gen’l rules - discovery from testifying experts but not non-testifying experts(b)(5) - claims of privilege or protect. of trial prep. materials--must state grounds of priv. or prot. expressly claimed

F. Ensuring Compliance & Controlling Discovery Abuses - FRCP 26(c) & (g) and FRCP 30(d) and FRCP 371) Problems with lawyers’ behavior in discovery under FRCP:

a) too much discovery--asking for too muchb) too little discovery--responses = stonewallingc) mismatch problem = imbalance of resources--little s may have trouble getting al the disc.

that they, in part., need against big corp. s – unequal wealth prob. Court deals worst with this problem.

2) “Too much”: FRCP 26(c) Protective Orders - Ct. can order party to lay off on requests if they are causing:

Annoyance, embarrassment or oppression Undue burden or expense If privilege or confidentiality needs found

Need showing of good cause or good faith effort to settle matter outside of court, though3) FRCP 26(g)(1) - lawyer control of docs (like Rule 11)--att’y signature = certifies discovery is complete

& correct after reas. inquiry


FRCP 26(g)(2) - att’y’s signature certifies disc. material/request is (A) consistent w/ FRCP & warranted by existing law, (B) not for improper purpose, (C) not unduly burdensome or unreasonable (e.g.

pursuing a case that will just cover attorney’s fees). FRCP 26(g)(3) - ** Ct. required to sanction if violation is found. (Used more frequently than Rule 11)

Focus here on attorney’s obligation rather than court’s authority4) FRCP 30(d) - Ct. can sanction improper att’y conduct in depositions5) “Too little”: FRCP 37 - core grounding of authority of Ct. ensuring compliance & controlling discovery

abuses37(a) - governs orig. motion to compel to Ct.--can impose fees and costs on losing party37(b) - sanctions do not arise until order granting mn. to compel except regarding automatic

disclosure--Ct. can find non-complying party in contempt or manipulate case to create disincentives (i.e., refuse to allow evidence party wouldn’t share; OR, if non-disclosing party would want to keep info. out of trial, hold off on part of that party’s claim or take issue of refused disclosure as proven). Most parties give in w/ granting of mn. to compel.

37(c) - failure to disclose in acc. with FRCP 26--Ct. can order party can’t use non-disclosed evid. or other sanctions (if it’s evid. non-discl. party wouldn’t want to use, give it to opponent)*** Broad authority by court to do more than award fees; can dismiss claim & prevent use of evidence & tell jury about party’s failure to aut. disclose, etc.

37(d) - Ct. can, at its discretion, sanction for failure to show up at deposition & other bad behavior at depo. Sanctionable in first instance, Ct. routinely awards cost of failed depo.

Case - Phillips v. Manufacturers Hanover Trust - Dist.Ct. for S.D.N.Y. - The excerpt showing how obstructive a lawyer can be during depo & how witness takes signals from objections. Rule 37 only authorizes for failure to show up for depo or failure to comply w/ Ct.-ordered disc. This case = Rule 30, conduct frustrated fair examination of the deponent. Ct. ruled that the objections did not rise to the level of conduct necessary to sanction. Shows that cts. rarely will sanction, so that obstructionist att’y learns to get away w/ it & victim learns not to seek sanctions.

IX. Settlement - FRCP 41(a) & 68Rule 41(a): Action can be dismissed by P without order of the court:

1. by filing notice of dismissal before service on D or before answer to motion for summary judgment

2. filing stipulation of dismissal by all parties who have appeared in action.A. parties, therefore, generally have a freedom to settle with few exceptionsB. Why Settle?

1. Both sides benefit 2. More efficient than litigation

less costly faster

3. Qualitatively better/more fair subtle facts/nuances of party interests can be taken into account

4. Disputes are between parties allow them power to decide

5. Can contract for confidentiality keep dispute out of public eye

Why not settle?1. Deprives legal community of precedent case law, i.e. defined adjudication of issues. Common

law is needed, part of our system2. Public interest -- Confidential settlement deprives public of knowledge of party

wrongdoing/problems in areas of legitimate public concern (i.e. sexual harrassment (Kalinauskas v. Wong), tainted water) – Collateral Estoppel issue of 3rd party effects (Neary)

3. Leys might triumph over right4. Role of judiciary is to resolve disputes. Role undermined by not administering the applicable law

C. Tends to flow out of discovery process:


1) worst case--parties “spent out” by disc.2) face-to-face in disc. v. paper in pldgs--more opportunity to informally negotiate3) after disc. looms pre-trial memo which att’ys hate and want to settle b/f that4) increase chances of settlement by having something other than $$ on table: good rec., health coverage,

reinstatement, confidentiality (Kalinauskas)D. Two views of settlement:

1) zero-sum game/competitive2) collaborative notion/problem-solving approach--settl. = like contract negot.:

can offer as consideration:a) right to file case at allb) confidentiality for , who may want to settle b/f files suitc) agreement not to appeal can offer:a) moneyb) job, benefits of continued employment, health benefits, etc.c) apologyNOTE: both parties tend to strive to say there’s no fault or liability on either side when settle

E. Court involvement w/ settlements --Courts. like settlement especially early on in case1. Court gets directly involved in settlement agreements involving

a. Class action suitsb. Suits w/Minors

2. Why?a. Named plaintiffs might get $$ more than underlying, diffuse class. Court oversight ensures a

check on the self-serving named plaintiff & gives other class members an opportunity to come forward and object to the settlement.

b. Atty takes advantage of position to get $ for self: may settle for fees instead of the principles desired by the underlying class or the $ deserved by minor (Evans v. Jeff D. – atty doesn’t want to accept a settlement offer that is good for class interest but includes an atty fee waiver)

c. Minors might not know their rights, or identify their interests correctly – law doesn’t allow them to make binding commitments, protects them from their own bad decisions

Indirect involvement1) Ct. can put idea out there so that neither party looks weak by talking settl. first2) Ct. can give parties a sense of how strong case is following some disc. (parties often don’t believe what

att’y tells them but may listen to Ct.)Problems w/ judicial involvement:1) Ct. appears to be trying to get out of work rather than doing work of trying cases2) will be judicial, coercive pressure--att’y doesn’t want to seem uncooperative, may fear Ct. retaliation3) candid settl. talks w/ Ct. may prejudice judge re: weaknesses of party’s case if settl. fails & go to trialEnforcement of settl. agreements?1) consent agreement = ct. order over which Ct. keeps authority 2) agreement can stipulate continued Ct. jurisd.3) otherwise settl. argreem. is not enforc. in fed’l cts. (treated like a contract)4) Exception w/ children b/c:

a) kids can’t assess own interests & guardian may not best serve child’s interestsb) minors can’t enter binding agreements under law (not of age) so Ct. makes agr. = Ct. order

5) Should be Ct. oversight over all settl. agr. (not just in class actions or w/ children or incompetents)?a) Pro--could be diff. interests b/w client & att’y, and protect party that is spent-outb) Con--people should be able to make own choices, and waste of Ct.’s time b/c have to do merits

analysis w/ mini-trial or satellite proceeding on litig. costs, lose advantages of settl. – might as well just go ahead with trial.

F. Problem w/ pre-filing settlement (agreement not to sue) = no Ct. so agreement does not have force of a consent decree. Also issue of carving out all claims for complete settlement. Rule 41(a) permits plaintiff taking voluntary dismissal to re-file suit. Rule 41(b) allows involuntary dismissal with prejudice – you get a court judgment on the merits.G. Confidentiality Agreements:

1) Pro


a) individual had right to bring case and has rt. to close it--didn’t bring it as public service, so why have to share it w/ public?

b) public interest in keeping down number of cases that go to trial, and conf. agr. promote settl.c) may be a public good to have cases settle in ways that = beneficial to both partiesd) will pay a premium to for confid. that wants

2) Cona) looks like paying off witnesses and parties to stay silentb) unfair to future litigants & public--have a gen’l interest in subj. matter of settled case, shouldn’t

be deprived of access to that info.3) Usually Ct. will strike down a confidentiality clause if it does not also contain a clause that creates an

exception for “disclosures as required by judicial process or as otherwise required by law.”NOTE: Very similar to Work-Product Doctrine in its rationale.

Case - Kalinauskas v. Wong - Dist.Ct. of Nev. - Dist.Ct. ruled that when a second sexual discrim. suit arises against a (Caesar’s Palace), second does have rt. to depose in orig. case though her settl. incl. a confid. clause. would not have been harmed as severely as would have been helped. Orig. can only testify re: facts of her case, not terms of settlement itself (doesn’t go to underlying facts or liab. and policy = don't use past settl. against ). Imp’t to prevent wasteful duplic. of discov., & public policy favors facts of ’s. bad acts re: empl. coming out.

H. Contracting after Judgment – To what extent are judicial pronouncements themselves manipulable by party agreement?

1. Why Settle Post-Judgment ?a. After trial court makes decision, losing party may want to appealb. Parties may want to settle instead of go through time and expense and effort of appeal

2. Arguments Pro-Post-Judgment Settlementa. Settlement promotes efficiency

no appeals limit lit. costs judicial economy

b. Accommodates parties’ interests, settles their disputec. Enforces role of public judiciary as a forum of peaceful dispute resolution

3. Arguments Against Post-Judgment Settlementa. Diminishes respect for judicial systemb. Discourage incentive to settle earlierc. “Violating search for legal truth.”

Vacatur4. Why do Parties Want to Vacate?

a. D may not want public declaration of unlawful activity on booksb. D or P may not want decision on books as precedent

5. Rule for Vacatura. Neary v. U. of California

cow libel suit settled post-verdict, court granted vacatur Rule :

Post-judgment settlement which demands vacatur of the decision may be allowed absent a showing of extraordinary circumstances (i.e. suspicious or fraudulent settlement, public interest decision)

Sentiment = judgement belongs to parties Dissent:

only approve vacatur if judgment has no value to public or 3rd parties (how to tell what value to 3rd parties or public is?)

Case - Neary v. University of California - (1992) Cal. S.Ct. - Two parties agreed, after a jury verdict for , 13 yrs. of litig., & filing of appeal & cross-appeal, to settle for less $. Asked Ct. to dismiss appeals w/ prejudice, Ct.App. would vacate trial ct. judgment, and action then be dismissed. Both parties agreed to vacatur. Ct.App. rejected request. Cal.S.Ct. ruled parties should be entitled to a stipulated reversal to enact settl. absent extraordinary circumst. warranting exception b/c saves Ct. time/encourages settl. & cts. = for real litigants not abstract legal ?s.

b. Bancorp Mortgage v. Bonner Mall


Legal question of Bankruptcy Reform Act at issue – public/legal community interest here

Sentiment = judgment belongs to public Sup. Ct. view = judgments should not be vacated Elimination of lower court decision would allow re-litigation of same issue Judicial precedents are presumptively correct, and should not be vacated unless

public interest (not party interests) would be served To allow late settlement/vacatur will reduce incentive to settle earlier, lessen

efficiency arg. of settlement.Case - US Bancorp Mortgage Co v Bonner Mall –(1994) S.Ct. - Mootness by reason of settlement does not justify vacatur of a judgment under review once S.Ct. takes cert. Vacates Ct.App. judgment. Only wanted vacatur. Losing party () can’t have cake & eat it too--seek review then stop availing self of opport. to review, then seek to kill judgment below as well. But for actions of loser below who could have appealed, case would not = moot. S.Ct. would have to act by equit. relief so look to public interests re: “new value exception”, which = not disrupting system to allow collateral attacks on ct. judgments outside appeals system Cong. set up and would undermine lower cts.’ authority and pretrial settlements if ill effects of unfavor. rulings can be erased ex post facto.

c. Federal Rule No vacatur except under extraordinary circumstance

6) Reconcile two case with three distinctions (Scalia in Bonner Mall accepts only c)).a) Neary = vacate trial ct. & Bonner = sought to vacate Ct.App. , which has greater precedential

significance to all cts. below them;b) Neary = both parties agreed to vacatur, Bonner = only loser wants vacatur of unfav. decision;c) Neary = appl. of uncontrov. law, Bonner = imp’t., controv. legal ? re: new bankr. doctrine &

more value to non-parties.BUT while Neary says exception for imp’t precedent or coll. estop. effects, S.Ct. in Bonner says must

have aff. showing that public would benefit from vacatur not just that public gains no benefit from judgment (as in Neary’s unimp’t decision).

Language in Bonner sweeps broadly enough to cover issue raised in Neary, suggesting the 2 are in conflict – should probably go by Bonner standards since it is later case and of the highest court..

I. Costs of not settling - FRCP 68--Fee Shifting Statutes 1) If offers a good settlement in early stages and refuses, FRCP 68 disallows from collecting costs &

forces to pay ‘s cost after the offer. Usually will include attorney’s fees. 2) Purposes: discourage frivolous litig. and encourage settlement. Also encourage public-interest

litig. (civil rts.) w/ one-way (toward ) fee-shifting provisions.3) Rule 68 says that, at any time more than 10 days before the trial begins, if the judgment finally obtained

is not more favorable than the offer, the offeree must pay the costs incurred. 4) Does not apply to offers to settle.5) Problem = tricky to know what’s more favorable when relief is not $ but reform of gov't system or

specific relief.

J. Separating Client and Lawyer in Fee-Shifting Situation Settlement offers can drive a wedge between lawyer and client, especially w/ public

service lwyrs:Case - Evans v. Jeff D. - S.Ct. - offers to settle and they offer almost all of what asks but conditions settlement upon a waiver of attorney’s fees. Dist.Ct., reviewing settl. b/c class action (Rule 23(e)), said that waiver was coercive and did not allow it. S.Ct. held nothing in statute of § 1988 shows Cong. meant to disallow fee waivers, and won’t hurt availability of civil rts. att’ys but in fact = “bargaining chip” to get better deals for Ps. Coerciveness inquiry fails b/c fee by statute = itself coercive. Dist.Ct. didn’t abuse discr. where settl. = good for class & helped by fee waiver. Ps had tough case and might have lost at trial, so settl. serves purpose of Fees Act (promote civ. rts. litig.) & = fair.

Concern lawyers will stop bringing civil rights cases on behalf of indigent clients for they won’t be able to afford to litigate them.

Has led to issue of contracting around this – Ps agree not to accept any settlement offers that waive lawyers fees, otherwise could discourage ethical lawyers from pursuing these cases.


X. Provisional Remedies - FRCP 64 & FRCP 65A. In General

Relief pending final adjudication of dispute Purpose: A remedy too late may be useless. Even worse, party will incur costs to obtain such useless

remedy. Advantages:

o Save party from permanent harm which will be imposed during adjudication processo Immediate relief

Disadvantages:o Must be imposed before court has complete information or benefit of adversarial exchange

(i.e. trial)o Possible denial of due process of other party (Fuentes)

Significance of injunctions/remedies:o Often lead to settlement & good indication of whose side is stronger.o However, maybe not all facts in yet. Still opportunity for discovery.

B. Preliminary Injunctions - FRCP 65(a)1) Prelim. Injunction = Ct. order that party act or stop acting2) Party requesting preliminary injunction must give notice to opponent so other side may be heard.

Rule 65(a)(1)3) Court can consolidate trial on merits w/ hearing on preliminary injunction. Rule 65(a)(2)

Minimize problem of zero-sum game, but only if parties already have al th evidence they need, which is unlikely if the preliminary injunction is filed early in the litigation.

4) FRCP 65(c) - party must put up security bond b/c Ct. has to, by defin., guess & decide w/o full facts-- Danger is that interlocutory relief may result in a decision that will differ from final decision.

5) Problem is that non-moving party may be erroneously harmed if prelim. inj. is incorrectly granted6) Preliminary injunctions may be granted where P might suffer a loss of rights that will not be reparable

after trial7) Court must weigh loss of P if don’t grant v. loss of D if do grant.8) More certain court is about correctness of a decision on the merits, then need not worry about special

problems of a preliminary injunction.9) D should usually object to motion10) Courts more likely to issue injunction to prevent, rather than to compel, conduct.

Case - William Ingis & Sons Baking Co. v. ITT Continental Baking Co. - 9th Cir. - Ct.App. adopted an alternative test to one the Dist.Ct. used in determining whether a preliminary injunction should be ordered. “One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.” Dist.Ct. did not abuse discr. in denying prelim. inj. in antitrust case but remanded for inquiry on other three issues from old test not reached by Dist.Ct. and for reconsideration under new test articulated by Ct.App.

11) Tests for Dist.Cts. to apply re: Preliminary Injunctions - Ct. looks to harm to movant & other partyOld test:a) moving party will suffer irreparable injury w/o it;b) movant will probably prevail on the merits;c) in balancing equities, non-moving party will not be harmed more than movants helped:

P’s benefit > D’s harm;d) granting injunction is in the public interestNew, more lenient test : Moving party assumes burden of demonstrating:a) A combination of probable success and possibility of irreparable injury

ORb) Serious questions are raised and balance of hardships tips sharply in his favor.Alternative formulation of alternative test:a) “It is not necessary that the moving party be reasonably certain to succeed on the merits. If the harm that may occur to P is sufficiently serious,

THEN


b) only necessary that there be a fair chance of success on the merits.12) Imp’t to note that Ct. can refuse to grant prelim. inj. even if movant will likely prevail on merits.13) 2 Tests Compared:

Traditional test requires a court to determine BOTH that the party seeking the injunction will be irreparably harmed if the injunction is denied AND that the party is likely to prevail on the merits.

Ingis test allows a court to issue the preliminary injunction if EITHER the risk of harm OR the likelihood of prevailing on the merits is great.

Parties likely to succeed under Ingis test who would fare worse under Traditional test are those in better position, at this stage, to demonstrate that the denial of the injunction would cause them serious harm than that they are entitled to win on the merits, so burden better met.

FRCP 65 - Preliminary Injunctions(a)(2) does allow for the consolidation of the hearing with the trial on the merits (move up trial to the hrg on injunc.)

Any evidence admitted in injunction hearing becomes part of trial record Court must consider adverse party’s right to a jury trial.

(c) Requires that a bond must be created to cover if the final decision differs from the preliminary injunction. 28 USC §1292(a)(1): Interlocutory decisions are immediately appealable. B/C too costly for loser to wait through trial (under same judge whom loser believes wrongly granted inj. against it) for relief.

Standard of Review: Based on erroneous legal premise OR Abuse of trial court discretion.

C. Temporary Restraining Orders - FRCP 65(b)1) The injunctive equivalent of a seizure without a hearing.2) Can be made without the knowledge of the party being restrained (ex parte) 3) Used in cases of a battering spouse or a bulldozer about to tear up a Native Amer. Artifacts.4) Used when there is such immediate danger that can’t wait for hrg. OR b/c notifying other party

will directly lead to harm want to prevent (i.e. battered spouse)5) Also must square w/ Fuentes: is hrg. b/f a judge even if ex parte & measures costs (Is there irrep. harm?)6) Rule 65(b) requires that notice be given, or a reason why notice was not given. can have ex parte

hrgs. on TRO (only moving party notified and present at hrg.) “only if it appears from specific facts ... that immediate and irreparable injury or loss will result to the applicant before the adverse party can be heard” OR P made every effort to give notice & demonstrates why notice should not be given

o Duration = 10 days, extended w/ good cause shownNOTE: Prelim. relief can end litig. b/c

a) signals Ct.’s positionsb) may change parties’ positions (i.e., if child returned to birth parent, does anyone want to move it

again?)D. FRCP 64 - Seizure of Person or Property (Preliminary Monetary Relief or Arrest)

look to state’s law OR else FRCP applies. Remedies include arrest, attachment (control of property), replevin (seizure of goods), garnishment of

wages, sequestration, etc. Puts severe hardship on D. Guarantees there will be some assets from which a judgment may be satisfied & provide significant

leverage in settlement negotiations. Major Due Process concerns (see Fuentes below)

E. Preliminary Relief and Due Process: Can Prov. Remedies come too fast?

NOTE: All procedures are subject to examination under the Due Process Clause of 14 th Amendment: no state can deprive any person of life, liberty or property w/o due process of law.

Case - Fuentes v. Shevin - S.Ct. - Reviewing the summary seizure of goods under writ of replevin. Statutes did not require that there be a hearing on the merits of the claim. Due Proc. Cl. = must have an opportunity to some sort


of hearing before seizure. Even a temporary non-final deprivation of property is a ‘deprivation’ under the 14th Amend. Statute must allow hearing at a meaningful time b/c: 1) once seized, wrong can’t truly be undone, 2) wrongly use state powers for private interests w/o extraordinary interests at stake, 3) s deprived of property interests even if no full payment, and 4) s did not waive rt. to pre-seizure hrg. by signing agr. that could retake goods if default occurred on payments.

Hints of Ingis reasoning: “right to be heard does not depend on advance showing that one will surely prevail at the hearing.”

Seizure w/o hearing only allowed when:o Important governmental or general public interesto Special need for very prompt action (TRO)o State needs to keep strict control over monopoly of legitimate force (IRS, econ. disaster,

etc.) Notice: small print on property contract not enough (like Lauro Lines) Hearing might take time, but “Constitution recognizes higher values than speed and efficiency.”

Opportunity to be heard must be w/in a meaningful time and in a meaningful manner (Cost of increased process) < (Chance of Error)(Magnitude of Party Interest in Preventing

Erroneous Deprivation)1) Due Process: compare costs of process to costs of change in process (see Greene)

a) difference in cost b/w preseizure & postseizure hearingb) increased reliability of change in the system (get to right result--only take property that should

be seized, where posting bond already = check)c) interest at stake

2) may not have to have an elaborate pre-seizure hearing to satisfy Due Process3) Fuentes = near-absolute rule re: pre-seizure hearing4) Must be state action (“under the color of law”) to have Due Pr. claim5) Fuentes: not enough of a check that seizer must post bond b/c seizer will see claims as stronger

than it is AND seizee will have to know their rts. & law and those likely to have property seized = least likely to know law & their rts.

XI. Summary Judgment - FRCP 56A. 12(b)(6) Revisited

1) a motion which alleges that even if the ‘s assertions are true, either alleges facts that do not constitute a claim under existing law, or fails to allege all of the necessary elements to an existing law.

2) only question is whether the complaint itself states a legally sufficient claim.3) Ct. assumes all alleged facts are true for purposes of the motion--Ct. doesn’t consider likelihood can

proved his alleged factual allegations, Ct. assumes he will prove them.4) Conley v. Gibson standard: “Complaint should not be dismissed for failure to state a claim unless it

appears beyond doubt that the can prove no set of facts in support of his claim that would entitle him to relief.”

5) Pleadings will be liberally construed for --if allegations in complain can be constructed two ways--one pro-, one pro-dismissal, Ct. will construe in favor of the . This is because if court dismisses, P will never have an opportunity to present case to jury (unless amendable): courts give every benefit of the doubt.

B. Summary Judgment – Rule 56: “Could rational jury find for P?”1) If meets the minimal burden to plead the elements of a compensable claim but cannot prove one or

more of those elements.Purpose: resolve non-meritorious claims w/o cost & delay of trial.

2) Party can obtain a final judgment, but differs from trial motions, like directed verdict, simply because it

is made earlier.3) Differs from other pretrial motions (demurrers, motions to dismiss, motions for judgment on the

pleadings) because outside evidence is produced & court not limited to the pleadings in making its decision.

4) Appropriate only if evidence before Ct. “shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FRCP 56(c).


E.G. Greene was presented on cross-motions for summary judgment: fact issues were undisputed Can’t simply claim you are in disagreement with the movant’s statement of facts – opposing

party must introduce contradictory evidence, not conflicting allegations or arguments. Also, facts in dispute must be central or material to case – disputes over irrelevant facts do not

bar summary judgment.5) Summary judgment = entry of judgment by the Ct. in favor of or without trial.

a) Could be a challenge the opposing party’s ability to prove an essential element of his claim.b) Could be agreement on underlying facts but disagreement on legal implications of those facts,

so parties frame a single, dispositive legal issue for the Ct. c) Could be used to resolve individual claims of a multi-claim lawsuit. Partial SJ – simplifies the trial

6) Paper Evidence: Can be supported by depos, answers to interrogs, & other things not admissible under law, esp. affidavits.

a) Affidavits covered under Rule 56(e) -- must be made on personal knowledge (can be a party’s).

b) Must set forth facts that = admissible into evid. & can’t = simply conclusory statements. c) Support MSJ w/ affidavits, interog. answers, depos, admissions, and docs, all of which need not

be admissible themselves if they demonstrate party has access to admissible evidence (i.e. affidavit shows witness could testify to the same facts at trial).

7) If opposing party produces countervailing evidence, should deny MSJ b/c MSJ not meant to try disputed facts but only to determine whether there are genuine contests issues of material fact. ? of fact

are for the jury!

8) Burden on opposing party is only to show he has legally competent evidence upon which a jury could resolve factual issues in his favor.a) If so, it’s jury’s role to resolve genuine issues of material fact.b) If not, and case went to trial, the jury would have no legitimate basis to find for the MSJ-

opposing party, and a verdict for MSJ-opposing party could only reflect irrational decision-making.

9) must “pierce the pldgs” = “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s [own] pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” FRCP 56(e).

10) Party opposing MSJ must offer evidence showing there is a factual dispute on the particular element that is challenges by the MSJ, not just that there’s genuine issues of fact on all other

elements. This means D can prevail by defeating a single element of P’s claim, whereas P must establish she will prevail on every element of claim.

11) If evidence offered on MSJ could give rise to two inferences, one of which would support the MSJ-opposing party’s case, the Ct. assumes the jury would make that inference and denies MSJ. Anderson v. Liberty Lobby, Inc.

12) Remember: The court will evaluate the evidence in light of the substantive evidentiary standard of proof that will pertain at trial.

C. MSJ may come early in case but gen’lly MSJ = well into or after discovery b/c proof is developed--can be at trial.D. Ct. can hold off on a ruling on MSJ until has seen evidence at trial E. Similar to 12(b)(6) insofar as no need for a trial but different b/c:

1) 12(b)(6) = examines legal claim on face of pldgs, BUT MSJ = examines proof (affidavits, depos) & determines existence of suffic. proof

2) MSJ does not determine winner but if there’s enough to hear at trial--if no genuine issue of material fact3) 12(b)(6) = Ct. dismisses w/o reaching merits, but MSJ = Ct. renders actual judgment on the merits (note

how language touches on both legal and factual issues in a case).4) 12(b)(6) only for but MSJ for or 5) 12(b)(6) = all-or-nothing (either = suffic. or not), but MSJ used to “clean up”/reduce different claims.

F. MSJ easier for to prevail on b/c has burden of proof on most if not all elements in ’s claim & only must show one element can’t be satisfied by proof has. Am’t of proof needs to avoid SJ against her


is often not enough to prevail on MSJ in her favor, even if produces no evidence--may not overcome burden of proving case by “preponderance of the evidence”. But if produces evidence in support ofits MSJ (like personal knowledge) & produces no contradictory evidence, will prevail b/c shows inability to meet her burden of proof.

G. Level of neces. proof = preponderance of the evidence to (stronger burden), but ’s evidence may support either claim.H. Basic Rule: A can’t get MSJ just b/c A has a lot more evidence & witnesses than B--BUT Ct. could still

grant MSJ if finds no reas. jury could go w/ B against weight of A’s evidence.I. Usually, if there is a trial that would definitely result in a Rule 50 Judgment as a matter of law, the C would

want to avoid a trial with summary judgment.J. MSJ denied even if it is highly likely opposing party will lose at trial. Simply a test of whether there is

something to have a trial about. For this reason it does not impinge on jury right. The court does not weigh the evidence and decide that one party necessarily would succeed if the case went to a jury. Rather, it determines that there are no factual questions for the jury to decide and that therefore summary judgment is warranted.

K. MSJ = interest in avoiding expense of trial but not at expense of either full trial b/f jury (7th Am.) or bench (not just const. rt. to jury at stake). BUT Ct. more likely to take case away from litigants in bench trial than away from jury where the same judge will look at affidavits & interrogs & so not = same fairness issues.

L. MSJ can come down to credibility call b/w two affidavits.M. Negligence is almost always given to the jury, we want community standards applied (unless interp. of negl. in

particular circumstance has already been articulated in regulations).

Case - Celotex Corp. v. Catrett (pp. 616-619) - S.Ct. - Moving party (here asbestos manuf. ) does not have to support its claim negating the opponent’s claim with proof contradicting ’s claim--it is enough to show, as here via ’s answers to interrogs, that non-moving party (here ) can’t prove material element of claim. The burden on the moving party is to show that there is an absence of evidence to support opponent’s case. Rule: Party w/o burden of persuasion at trial must only show that opponent can’t satisfy her burden to prove case. New rule from previous holding that moving party must show affirmative proof contradicting opponent’s claim. S.Ct. indicated MSJ is imp’t under FRCP and is approp. for Dist.Cts. to keep cases from going to trial via SJ. NOTE: Party bearing burden of proof at trial must still show affirmative proof of its claims to prevail on MSJ.

FRCP 56 - Summary Judgment(a) - can bring MSJ after 20 days from commencement or whenever files for SJ--seems can file MSJ even b/f has received complaint(b) - can file at any time--usually not until after discovery(c) - standard:

- served at least 10 days b/f hrg. on MSJ- issue of fact = w/o contention (“show that there is no genuine issue as to any material fact”)- available evidence--must be approp. affidavits & Ct. exercises heightened scrutiny (over that of

pldgs) of truth of matters therein- effort to ‘pierce the pldgs’--can’t rest on pldgs (“moving party is entitled to a judgment as a matter of

law”)(d) - use it to clean up resolvable issues(e) - if no response, i.e. adverse party rests on mere allegations, MSJ if appropr. will be entered against adverse party; also form of affidavits(f) - postpone or delay if inadequate time(g) - affidavits made in bad faith solely for purpose of delay bring sanctions (attny fees, etc.)

RECAP: Burden of Production and Proof1. Recent cases have made it easier to get SJ

Complex cases – courts just trying to avoid time-consuming trial?2. Movant has burden of production

a. Must provide information that clearly establishes that there is no factual dispute regarding matter upon which SJ is sought using affidavits, etc.

b. May, however, just show “no evidence” if burden of persuasion would be on other party at trial – thru analysis of other party’s disclosure


Just need to show/ point out to court that there is an absence of evidence to support an element of the nonmoving party’s claim (easy standard)

Celotex Corp v. Catrett- Asbestos co. got SJ because P failed to show by a preponderance of the evidence

that it was more likely than not that her husband was exposed to Celotex asbestos

- P would have had to do so at trial- Dissent: would put burden on moving party to show that opponent’s case fails

(medium standard)3. Determining burden of proof

a. Party w/easiest access to knowledge about matterb. Party asserting the improbable (i.e. breach of K)

XII. Jury Trial - FRCP 38, FRCP 39, & FRCP 47 & 48A. Seventh Amendment

1) In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.

a) Ct. must decide whether the trial would be heard in a court of law (where juries sat) or a court of equity (where judges where the triers of fact).

b) never incorporated under 14th Am.-- applies only to federal cases, i.e. there is no federal constitutional requirement that states accord the right of jury trial in any civil case.

c) A historical test--which court would claim be brought w/in in England in 1791, unless Cong. specifies claim includes rt. to jury trial in statute.

d) Historical Claims that still existCommon Law

i) Relief of money damages ii) Action of replevin

iii) Action of ejectmentEquity

i) Specific Performance ii) Contract Reformation iii) Recission iv) Fraud, Breach of Fiduciary Dutye) Some will fight long and hard for right for jury or for a judge. Some consider it essential to

win.The Historical Testa. Whether in 1791 the issue would have been presented to court of law or chancery

Court of Law -- JURY- Damages- Straightforward, A v. B suits

Court of Equity – NO JURY- Injunctive relief- Complex, multiparty suits

b. General Rule: Claims requesting damages, right to jury trial Claims requesting injunctive relief, no right

c. Modern Problems new claims exist new forums exist common law and equity issues have merged equity claims may have legal remedies, etc.

2) Applying Historical Test to New Claims--can cause problem b/c test involves a certain am’t of fiction w/ new claims allowing Cts. to decide if have jury on Ct.’s ideological vws.

New Claims -- Modern test for jury trial


a. Look at statute – does it give a right to jury trial?b. If not, use 2-part general prudential rule

Chauffeurs, Teamsters & Helpers v. Terry: Analogous cause of action in 1791?

- Less impt. prong of test- Very fuzzy, gives judges lots of discretion & often find analogical law and

equity issues, so doesn’t help Examine remedy sought – legal or equitable in nature?

- More impt. prong of test- Straight loss compensation remedy/injunctive relief = equity- Damages = legal

c. Controversy Dissent in Chauffers, Teamsters & Helpers v. Terry:

- Brennan: Historical test should be completely abolished, simply look to relief sought (Brennan v. all abolishment because of 7th amendment – want to reliably ground selves in history)

- Impossible to make modern issues fit mold of 18th century ones- Look at remedy sought ONLY because courts are either skipping over the

cuaseof action inquiry or assigning less weight to this inquiry than to the remedy inquiry. Functional approach

- Would judge or jury be better at deciding a particular issue? Markman v. Westview: patent dispute decided by jury usually; case about consistency within patents. Judge interprets terms of action, but jury decides overall issue

d. For most newly created claims that seek money damages as the remedy, the court has found a right to trial by jury.

Case - Chauffeurs, Teamsters & Helpers v. Terry - S.Ct. - Justice Marshall wrote: Must look at both the nature of the claim and the relief sought to determine if a jury trial. Look to analogous causes of action from 1791 English courts, but type of relief trumps type of claim. Sometimes equity cts. granted money damages, esp. as restitution. Question of duty of fair representation by union. Brennan concurring says should just look at relief.

Law EquityCause of action Attorney malpractice: N; contract

dispute: YVacate arb. Award: N; breach of fiduciary trust: Y

Relief/Remedy Monetary relief: Y

a) “Soft tests” like historical test for 7th Am. rt. to jury trial present danger of Ct. deciding based on ultimate outcome where Cts. go by ideological beliefs of what ‘right’ result

is.b) Broader, functional approach: look to if jury or judge is better fact-finder b/c that drove

equity v. law distinction (for the most part) in 1791 English Cts.c) Title VIII of Civil Rights Act of 1968 gets a jury trial because of talk of legal relief built into

it – Curtis v. Loetherd) No jury right for Title VII claims, prohibiting discrimination in employment -- see Yeazell

pp. 660-661 – Talk of enjoining and “Equitable relief” e) Congress can control right to jury by labeling remedies.

3) Implications of Seventh Amendmenta) The right to a jury trial does not have an analogue to a bench trial. Beacon Theaters v.

Westover. Congress can therefore expand, but not contract or compromise, the right to a civil jury trial.

b) Historical reasons for jury rt.:i) need people in gov't of the people to control what law looks like

ii) jury nullification (esp. in debt actions) iii) cross-section of community iv) virtues of group deliberation (12 heads = better than one)


v) enhance legit. of trial for litigants b/c fellow members of community decide their fatec) Disadvantages of juries:

i) costly to run jury system ii) jury nullification = considered infirm today but juries have no acc’tability & will do it:

this can “skew” application of the law iii) no expertise in handling complicated (leg. or factually) issues iv) requires Rules of Evidence to control info. that gets b/f jury (can’t be trusted--

prejudice) v) Ct. must instruct juries--common ground for error

FRCP 38 - Jury Trial of Right(a) - right to jury trial under 7th Am. or statute preserved inviolate.(b) - written demand for jury trial w/in 10 days of last pldg(c) - demand must specify issues to be tried--if unspecified, will assume all issues to be tried(d) - if no demand, right to jury waived

FRCP 39 - Trial by Jury or by the Court(a) - demand granted unless:

(1) - parties stipulate to bench trial(2) - Ct., on opposing party’s motion or of its own initiative, finds no rt. to jury trial under Const. or statute

(b) - Ct. can, in its discretion on a motion, order a trial by jury on any or all issues even if no demand (where would be a jury of right if demanded). [Could motion in middle of trial but highly unlikely.]

(c) - Ct. can, in its own discretion or upon motion on consent of both parties, order trial by jury or order an advisory jury on any issue (to get ‘community standards’ read on a case) where there would be no jury of right.

B. Applying Historical Test to New Procedures (Government Agencies)1) Seventh Amendment and the Structure of Government

a) problems posed by creation of administrative agencies & growth of regulatory state.b) Arguments for preserving rt. to jury trial in administrative proceedings:

i) agency took over historic. legal claim & should get jury--is a diff. kind of claim w/ agency, but Cong. can’t do indirectly what can’t do directly (7th Am. rt. to jury)

ii) cases cry out for a jury--adm. law Ct. app’ted by agency to hear that agency’s claims--want community watching that power of state not brought w/ too much

discretion iii) cases = cost-benefit analysis so need community read on weight of costs & benefitsc) Arguments against rt. to jury trial in administrative proceedings:

i) parties can appeal agency determinations to Ct.App., providing protection against adm. agency bias and vested interests of adm. law judges

ii) want experts (adm. law judges) doing cost-benefit analyses & repeat adjudicators d) S.Ct. has held (in Atlas Roofing and Granfinanciera):

i) 7th Am. does not prohibit creation of an administrative agency ii) If Cong. creates adm. agency & assigns it otherwise jury-right action, 7th Am. does not

prohibit the arrangement iii) 7th Am. does prohibit taking away jury w/ a claim left in a Ct. of some kind (bankr.

ct.)--look to match b/w interests at stake & old equity or old common law claims.

So, court upholds notion of administrative adjudication so long as Congress entirely removes the claim from the court system.

a. Atlas Roofing v. OSHA “Public rights” established by Congress may be adjudicated by agencies set up

specifically to deal w/these rights. No right to jury trial

b. Why no jury trial for “public rights” disputes? Agencies have expertise Matters of public concern/right will have important policy effects – not just between

private parties More efficient (faster, expertise)


c. Arguments for jury trial for “public rights” disputes Agency members appointed by terms, not in for life, so not independent Gov’t prosecutor and gov’t adjudication panel = strong gov’t bias. Want objective

trier of fact Agencies supposed to represent interests of the public. So put the issues to the

public/jury, let them decide How to decide “public” v. “private” rights? Blurry line (i.e. Granfinanciera)

d. Granfinanciera v. Nordberg (bankruptcy suit) “Private cases” involving gov’t agencies shouldn’t be denied jury trial, though Right to jury trial Why jury trial for bankruptcy proceeding?

- Essentially a “private rights” dispute- Fraud comes down to intent, jury meant to deal w/questions of witness

credibility Arguments against jury trial

- Juries lack expertise in bankruptcy, too- Bankruptcy proceedings, of all types, should be fast and inexpensive. Jury trial

longer, more costly

2) Seventh Amendment and Changes in Judicial Proceduresa) problems posed by merging of law & equity under FRCP, which preserved right to jury

trial but not the underlying procedural system of separate cts. of law and equity.Merged claims (law/equity) –Beacon Theatres v. Westover

a. Equity claim with legal counter-claim and defenses allows trial by jury of legal matters first

Shows preservation of jury right, even if out of order (jury trial on defenses must go first – strange)

Nature of relief here not helpful in determining whether jury or not (declaratory relief is neither legal nor equitable)

b. Rule: In cases where there are both legal and equitable claims, trial judge must ordinarily hear the legal claims first

c. Exception: In cases where the party asserting equitable claims would be irreparably harmed by delaying the claims until after hearing of legal claims, equitable claims may be heard first

Case - Beacon Theatres v. Westover (pp. 667-673) - S.Ct. - “Only under the most imperative circumstances, circumstances that in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issue be lost through prior determination of equitable claims.” In the case, (Fox) sought an injunction against ‘s threats to sue (equitable relief sought). counter-claimed for damages under antitrust laws (matter of law). Holding: jury should decide the legal claim b/f jury first and its decision on common issues should bind the judge when he considers the equitable claim, b/c determination of the equitable claim may preempt or estop the legal claim from ever being tried and thus effectively deprive a party of its rt. to jury trial.

b) Party seeking equitable relief doesn't lose any of its rts. if common fact issues b/w legal & equitable claims are tried to a jury, b/c party never had const. rt. to put those b/f bench as opposed to jury. But party's access to equit. rel. shouldn't be foreclosed by fact of jury

trialc) S.Ct. says that very rarely will the harm to a party's claims of equitable relief from being tried

after a jury trial of legal claims outweigh the harm that a legal claim may suffer (perhaps being decided altogether) if the equitable claims are decided by bench trial first.

C. Qualifications of the Jury1) “juries selected at random from a fair cross section of the community.” 28 U.S.C. § 1861 – “all citizens shall have the opportunity to be considered for service”, & See 28 U.S.C. §§ 1863-4 & 1863-6 & 1866 for how to do this.


2) § 1862 says that no citizen shall be excluded from service “on account of race, color, religion, sex, national origin, or economic status.” Last one because professionals often exempted

3) § 1867 gen’lly requires supplementation from other sources if neces. to comply w/ goals of §§ 1863-4.4) § 1867(c) requires civil parties to raise an issue before voir dire or within 7 days after the parties could

discover the problem that composition of jury not = fair & random cross section of community.5) Cross-section of community requirement does not mean have to create a community that doesn’t exist

(i.e. can’t help but have an all-white jury in all-white Wyoming).6) At the margins, the qualities that make a difference in jury members depends on purposes for having

cross-section of community requirement:a) impartiality--no personal biases brought to bear on verdict.b) want many perspectives and life experiences to ensure justice in decision.c) greater legit. w/in community if made by a jury that looks like community & all included.d) don’t really want experts on a jury – might have more careful assessment but can also lead to

overdeference, also supposed to be limited when arrive: they know too much.D. Selection of Jurors - FRCP 47 & 48

1) Challenges for Causea) Once the pool of jurors is chosen, they are then selected through voir dire. FRCP 47(a): court

or parties may conduct, at court’s discretion.b)FRCP 47(c) - only Ct. can excuse jurors for good cause.c) Cts. use narrowly--must be clear evid. of bias (relatives w/ parties, know too much about

case, life experience = too similar, biased toward or against one party from outset)d) Knowing too much is a problem b/c it eases burden of production on one party as juror

brings evidence to the case that’s not from litigants & might not come in under lawe) For-cause challenge = straightforward indication of bias; reflects lack of trust in jurors b/c

their views & ability to separate own experiences & info. they know from deliberations is suspect. Jurors don't decide what info. to consider.

f) Primary goal is always to achieve an unbiased jury.g) Problem = what constitutes a bias? If a teacher, should allow other teachers on jury? What

if juror admits bias, but promises it won’t affect him? Fine line, and difficult distinction.h) If party finds out that juror lied during voir dire, in order to challenge a verdict the party must

show (McDonough Power Equipment v. Greenwood):i) Juror failed to answer honestly a material question

ii) Correct response would have provided a valid basis for a challenge for cause--high standard b/c Ct. is so reluctant to exclude for cause.

i) Lawyers use voir dire to:i) to initially present and frame the case for the juror.

ii) to make a list of jurors that they would like to strike.2) Peremptory Challenges

a) FRCP 47(b) - jurors excused by lawyers for any reason or for no reason at all acc. to number

provided in 28 U.S.C. § 1870. -- “each party shall be entitled to three peremptory challenges” unless court allows more.

b) Justification = both sides exclude most biased for other side & arrive a relatively unbiased jury somewhere in the middle of the parties’ positions.

c) Why exclude?i) gives verdict legitimacy in eyes of parties.ii) hunch about bias--leaning toward other side

iii) type of loose cannon you can’t predict--reduce uncertainty iv) too logical--won’t give in to emotional appeal on closing v) pissed juror off in voir dire (you created bias against you) vi) parties will buy into verdict if have a role in picking fact-finderArgs against

Lawless, based on lawyer intuition Can be used for discrimination Allows elimination of certain views – jury supposed to be a cross-section of society


d) Batson v. Kentucky-- in criminal case violated equ. prot. rts. of and excluded jurors by systematically striking black jurors w/o a non-racial justification.

e) If objecting party can show a pattern of discriminatory reasons for exclusions (make prima facie case), pros. has burden to show nonpretextual, non-discr. reason for

exclusion. (Edmonson) Good to wait for strong pattern, for then judge will be more skeptical of alternative explanations

Case - Edmonson v. Leesville Concrete Co. - S.Ct. - In civil case, used 2 of 3 peremp. to exclude blacks. If excluded for racial reasons, does this violate Const.? S.Ct. held it did b/c private party, even in civil case, exercises state action in jury selection through peremptories, which are delegation of state authority to parties. Violation of jurors’, not ’s, equal prot. rts. 5th amendment read to include anti-discrimination component for federal actions (Powers v. Ohio – actions of a prosecutor) and now extended to state action.3rd Party Standing Test: can bring claim where:

1) suffers concrete & redressable injury (so know will have incentive to vigorously pursue claim that we’d otherwise worry would be missing in bringing another’s claim);

2) close relation w/ 3rd party (jurors) = parties develop relationship w/ jurors (Powers) starting w/ voir dire ( know right interests to push); and

3) 3rd parties cannot bring suit themselves (jurors won’t see pattern or know they have a claim)-- idea is we’re only indirectly thinking of as good rep. of excluded jurors

NOTE: awkward fit in this context. Even so, juror would probably not bring case (what would he get other than proclamation of right to be a juror?) & Edmonson has resources and motivationScalia (dissent): sometime there is “good” discrimination for balance & this could create a sideshow,

f) Powers rule = losing party has standing to bring suit on behalf of injured jurors.g) J.E.B. v. Alabama--S.Ct. says you can’t exclude on basis of gender using 9 of 10 to strike men

and seat all-female jury in paternity suit (S.Ct. says = stereotyping mechanism).- It is unconstitutional for any civil litigant to exercise a peremptory challenge based

on race, HOWEVER- It is unconstitutional for the state, but not for private civil litigants, to exercise such a

challenge based on gender. “Even strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.” – JEB; must have prima-facie showing of intentional discrimination & need not rise to the level of a for cause challenge – must just be based on a juror characteristic other than gender & explanation cannot be pre-textual.

h) Other side can say most anything as a non-discr. reason for exclusion (nuanced reasons like want shoppers [who are likely to be all women] to get gender exclusion you want

through back door) but must be reasonable--this gets us a long way from purpose ofperemptories in first place. When voir dire is brief, parties are left w/

stereotypes.i) Possible Solutions:

i) expand voir dire (costly) ii) abolish peremptories since rely on scant evidence iii) eliminate peremptories but expand basis for challenges for cause iv) clarify basis allowed for peremptories through specifications & examples

j) Judges: some states allow peremptory challenges of judges simply by filing of timely affidavit alleging in conclusory terms that judge is biased v. party- federal system permit, but only for cause 28 U.S.C. §§ 144 & 455: served as lawyer in

case or as government official or has financial interest – all meaning impartiality might be reasonably questioned.

Rule 48- Not fewer than 6 and not more than 12 jurors- Unless parties otherwise stipulate:

a. Verdict will be unanimousb. No verdict taken from jury w/ less than 6 members


XIII. Trials - FRCP 49, FRCP 50, FRCP 51, & FRCP 59A. Limits of Rational Inference

1) judgments are to be based only on inferences that can rat’lly be drawn from evid. presented. at trial.

2) Substantive law provides framework for inferential process; law of evid. screens out info. that might tempt trier to decide on criteria forbidden by the substantive law.

Case - Reid v. San Pedro, Los Angeles & Salt Lake Railroad - Utah S.Ct. - needed for cow to have gone through hole in fence maintained by not an open gate. Undisputed evid. of from which this would be inferred pointed w/ equal force to both inferences (gate & hole). Since had burden of proof, must fail b/c can't establ. element by a preponderance of evid. No evid. makes going through the hole more likely, and no rat’l jury could determine cow went through hole--thus not enough to send case to jury and have directed verdict for .

B. Procedural Control of Rational Proof1) controlled by

a) tradition of adversarial responsibility for proofb) system of jury trial

2) Trial meant less to assure truth than fairness b/c = system for managing doubt. Verdict = judgment about who presented more credible version of the case, not about truth.C. Burdens

1) Burdens of Proofa) ultimate standard to prevail on an issue.b) Usually “the preponderance of evidence” or “more probable/likely true than not true”c) Usually has the burden of persuasiond) Only if jury can’t decide the factual circumstances will the burden of persuasion decide the case

b/c when in equipoise, the verdict always goes for the party w/o the burden of persuasion.2) Burden of Production

a) Important burden – forces the party with the burden of production to come forward w/evidence from which a rational trier of fact could conclude some proposition of material fact.

c) Regardless of what actually happened, if party with BoPr can't come up w/ suffic. evid, he loses.

d) In some cases, and have a burden of production e) Ct. looks at ultimate burden of persuasion to decide how much evid. must be produced.

weaker evidence for P stronger evidence for P

no proof

for P Q R X Y

Z X = point at which P has produced enough evidence that is sufficiently persuasive that a jury, acting

rationally, could find that she has proved each element of her case. After X, P has satisfied her burden of production. Even if judge considers here evidence weak, the case falls within the realm of legitimate difference of

opinion and must go to jury. Z = evidence evenly balanced, evidence must fall to the right of Z for P to carry her burden of proof. Y = point at which P’s evidence so strong that any reasonable jury would decide she proved her case. Even if judge thinks P’s evidence lies at either Q or R, this falls within range for jury decision;

otherwise judge usurp jury role and substitute own judgment. If reasonable minds can differ as to the result, no matter how it seems case should go, it goes to jury,

D. Controlling Juries BEFORE the Verdict


1) Ct. can use following devices to define boundaries of jury rat’lity:a) Law of evidenceb) power of instructing jury on the lawc) power of commenting on the evidence (rarely used in U.S.)d) Directed Verdict (Judgment as a Matter of Law)e) Judgment n.o.v. (not withstanding the verdict)f) Grant of New Trial

2) Directed Verdict, Judgment n.o.v., and New Trial all rest on idea that under some circumstances a jury could not rationally decide in a particular way.

E. Directed Verdict (Judgment as a Matter of Law since never goes to jury now & is really more about balance of evidence, not resolution of factual issues like a verdict: change in terminology only applies to federal courts) - FRCP 50(a)

1) Move for it at end of other party’s case b/c party has not met burden of prod. on at least one issue-- ***2) Motion for DV comes after “a party has been fully heard on an issue.” Rule 50(a)(1): moves for

Directed Verdict at end of ’s evidence b/c evidence does not satisfy ’s burden to produce credible evidence in support of each element of her claim. may not move for Directed Verdict b/f ’s case-in-chief b/c would be deprived of chance to put on its refuting evid. or aff. def. can move for Directed Verdict after all evidence to challenge the sufficiency of all the evidence, both ’s & ’s, to support a verdict for the .

Opening Statements P presents evidence D presents evidence Case sent to jury

D may move D or P can move for No DV (JML)For DV (JML) DV (JML) allowed

3) FRCP 50(a)(1) - “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Judge, in theory does not resolve factual issues when he withdraws

case from jury but makes legal judgment that the evidence is so lopsided that there’s really no meaningful factual dispute for a jury to consider. But this standard really just poses question of when evidence is legally sufficient.

FRCP 50(a)(2) - can be made any time before submission of the case to the jury but only after party has been fully heard on an issue.

4) What evidence does Ct. look at to decide question of judgment as a matter of law? (affects outcome)a) favorable evidence rule = look only at evid. favorable to party trying to get to jury (usually P):

Wilkerson v. McCarthy (USSC).b) qualified favorable evidence rule = (used most in fed’l cts.) add unimpeached, uncontradicted

evid. offered by moving party (D) b/c Ct. not supposed to decide on credibility issues; if, considering all that evidence, can be but one reasonable conclusion as to the

verdict, judge must direct verdict for moving party. Carlson v. Am. Safety Equip Corp. (F.2d)“consider all of the evidence … but in the light and with all reasonable inferences most favorable to the party opposed to the motion.” & “A mere scintilla is insufficient to present a question for the jury.”– Boeing v. Shipman: this is the PREVAILING FEDERAL STANDARDc) all evidence rule = says judges can get into making judgments on evidence (not used in fed’l

cts.)--makes judgment as a matter of law test look like New Trial test)5) How much evidence does judgment as a matter of law require?

a) scintilla rule = slightest evid. gets case to jury b/c, if s have anything, rat’l jury could go w/ b) look at what jury should actually consider

6) Gen’l rule = if conflict of evidence and esp. if evid. raises issue of credibility, go to jury. If reasonable minds can differ as to the result, case is for the jury not the judge (acc. to some Cts.).

7) Where proven facts give equal support to 2 inconsistent inferences, neither being thus established by proof, as a matter of law judgment must go against (party w/ burden of proof).

8) S.Ct. stretches by saying, otherwise, as in Chamberlain, if jury were to go w/ , a new trial would be required, Ct. should direct verdict for & take case from jury to save time, cost &

serve justice.


9) If jury could ra’tlly find for , must be given the opportunity to consider the case, even if Ct. believes that the preponderence of the evidence favors , or vice versa.

10) Even where Ct. decides at end of evid. that there’s only one way to rat’lly go, may still send it to jury b/c:

a) juries = usually rat’l and usually go right wayb) will seem more legitimate in community’s vw. (don’t like taking away from jury)c) can still change verdict so loses nothing sending it to jury (though that might look worse--

saying jury got it wrong, so may be better to say ‘this one’s easy, jury, I’ll save you the trouble’)d) may avoid reversible error by sending it to jury

11) If Ct. conclude the ’s case is so weak that no jury, acting rat’lly on evidence b/f it, could find for , allowing case to go to jury only invites irrat’l decision-making on irrelant or prejudicial factors.

12) Judge may not determine credibility of witnessses--the test is whether jury, if it chooses to believe those witnesses, would have sufficient evidence to support a verdict for the .

13) Under fed’l standard, if Ct. assumes jury believes all of ’s evidence and rejects all evidence that’s been contradicted or impeached, and the only rat’l conclusion is that the proved every element

of her case, Ct. may direct verdict for . 14) But, as a practical matter, Cts. rarely direct verdicts for s b/c they have burden of proof on each claim.

Case - Pennsylvania Railroad v Chamberlain - S.Ct. - case of single witness who heard cars crash and 9 witnesses who testified that they saw that cars did not crash into car w/ . The single witness’s testimony was unreliable. Justice Sutherland’s decision overruled Learned Hand’s Ct.App. decision that stated that the issue was one of credibility. Sutherland says this was not a question of fact for a jury to decide, indeed the single witness only heard a crash. Sutherland thinks trial Ct. was right in withdrawing the case from the jury b/c jury could not properly produce verdict for party w/ burden of proof b/c ’s incredible evidence contradicted by ’s positive proof. Rejection of scintilla rule.

F. Jury Instructions – FRCP 511) Ct. teaches jury through instructions2) controls evidence and tells jury how it can use evidence3) Problem w/ two competing audiences = jury needs simple, direct instr. but Ct.App. wants them

substantively correct, complex, nuanced (incompatible requirements)4) Ct. tends to defer to parties’ proposed instructions so no quibbling over Ct. keeping out good instr.5) Ct. theoretically can comment on evidence though US cts. rarely do so b/c juries may defer too much to

Ct. thinking judge knows right answer and they’re just presented w/ puzzle to discover itG. Alternatives to Judgment as a Matter of Law - FRCP 49

1) Ct. can order special verdict to take ultimate verdict from jury & asks jury to decide underlying facts (FRCP 49(a)) – “special written finding upon each issue of fact.” Anderson

2) Ct. can present jury w/ interrogatories to set out findings of fact--if verdict doesn’t match findings, Ct. can change verdict or send it back (FRCP 49(b))

3) Judges don’t like directed verdicts b/c:a) juries seen as more legitimateb) don't like to have to decide right and wrongc) can do other things to control jury outcome like screening through rules of evid., jury

instructions, voir dire, and sequestering jury to keep misleading info. from jury.H. Controlling Juries AFTER the Verdict: Judgment Notwithstanding the Verdict (Judgment n.o.v., or JNOV) – A delayed (renewed) DV – FRCP 50(b)

1) Same legal standard and same inquiry as Directed Verdict, but asserts jury acted irrationally, disregard evidence in reaching verdict for the party opposing the motion.

2) 1991 Amendment gave JNOV same name as DV: both are called “motion for judgement as a matter of law” – don’t get confused!

3) In fact, FRCP 50(b) says party can only move for JNOV (after jury deliberations) if moved for Directed Verdict at close of all evidence not just at end of ’s case-in-chief b/c:

a) 7th Am concern = common-law judgment as a matter of law = directed verdict but not JNOV so must make two equivalent since FRCP 50(b) says renew “judgment as a matter of law”


b) Party should have chance to put on evidence it has w/o directed verdict even if initially failed to meet BoPr b/c of an oversight, and can't go back to jury after delib. w/ new evid.--

must alert Ct. & opposing party of alleged defect in case to have time to cure the defect.4) S.Ct. has said JNOV = only delayed, or renewed, ruling on motion for a Directed Verdict, a

fiction from Redman that the judge who denies a DV has simply delayed decision upon it, rather than “reexamined” a jury’s finding which is a violation of 7 th amendment: “no fact tried by a jury shall be otherwise reexamined in any Court of the US, than according to the rules of the common law.”Also prevents “sandbagging” opponent by raising defects after jury has been discharged.

5) Why put jury through deliberations if can be JNOV (& only one acceptable verdict)?a) juries usually make right decisionb) make jury = bearer of bad newsc) If appeal, better to have a verdict out there to impose rather than having to seat new jury if Ct.

grants Directed Verdict and Ct.App. later says rat’l. jury could go w/ losing side If judge denies initial DV at close of evidence & goes with JNOV, avoid scenario in

which judge’s decision is appealed, CoA agrees with w/ P and case must be retired from the beginning: a big waste! Instead CoA can just order judgment entered on jury’s verdict. “The need to retry the case is avoided by waiting until after the verdict to decide whether the case is jury-worthy.”

Add 416 permutations from Glannon!6) Ct. will also reject JNOV moved for on different grounds than earlier motion for Directed Verdict

b/c want Ct. and parties to have chance to cure ground for Directed Verdict if possible.7) FRCP 50(b) - party must renew motion [i.e. must have already moved for DV] w/in 10 days of

judgment, may alternatively request new trial8) FRCP 50 - “In ruling on a renewed motion [JNOV], the Ct. may:

a) if a verdict was returned:i) allow judgment to stand;

ii) order a new trial; iii) direct entry of judgment as a matter of law; orb) if no verdict was returned:

i) order a new trial; or ii) direct entry of judgment as a matter of law.

9) Harmless error won't support JNOV (or New Trial or reversal on appeal).

FRCP 50 - Judgment as a Matter of Law in Jury Trial; Alternative Motion for New Trial; Conditional Rulings(a) Judgment as a Matter of Law(a)(1) - if “fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue, the Ct. may determine the issue against that party. . .”(a)(2) - may be made at any time b/f submission of case to jury. Shall specify judgment sought & law & facts on

which movant is entitled to judgment.(b) - Renewing Motion for Judgment After Trial; Alternative Motion for New Trial(c) - Granting Renewed Motion for Judgment as a Matter of Law;Conditional Rulings; New Trial Motion(c)(1) - conditional granting of new trial in alternative: if judge confronted w/ a combined motion for JNOV and New Trial, must rule on JNOV and conditionally rule on NT

Why?: requiring concurrent alternative rulings will save time on appeal and will provide further guidance to the appellate court at to why the judge feels the verdict is erroneous. Otherwise have separate rulings on each with possible delay of 2 years.(c)(2) - shall be filed w/in 10 days after entry of judgment if Ct. deprives a party of its verdict on a JNOV.(d) - Denial of Motion for Judgment as a Matter of Law - may assert grounds for New Trial on appeal even if did

not seek it at trial stage. (see Glannon pp. 423-424)

I. New Trial - FRCP 59 1) Ct. can order sua sponte or on party’s motion but must be w/in 10 days of entry of judgment2) No clear grounds as legal standards as there are in Rule 50 for Dir. Verd./JNOV--3 views:

a) JNOV standard--Ct. must be willing to grant JNOV to grant new trial


b) miscarriage of justice standard--verdict leads to seriously erroneous resultc) 13th juror standard--Ct. would have voted other way had he been a juror.

3) Common law holds two grounds for new trial:a) flawed procedures leading up to verdict--taints evidence and result but:

i) can be “harmless error” and Ct. won’t order new trial FRCP 61, or ii) Ct. can correct herselfb) flawed result--new trial required to prevent “miscarriage of justice”

4) Different from JNOV b/c:a) JNOV = enter verdict other direction b/c jury totally irrat’l, but new trial = verdict is

highly suspicious & probably wrong but w/in realm of rat’lityb) can get new trials when JNOV is not warranted--less stringent standard than JNOV.

However, availability can be defended because a decision for a New Trial is not a final judgment – a new jury, not a judge, will decide case.

c) New trial order is not appealable (though some states allow it) but JNOV = final judgmentd) JNOV = no conflicting evidence or credibility issues, but new trial = Ct. can get into some

credibility assessments and weighing of evidence

Case - Lind v. Schenley Industries - 3d Cir. - Ct.App. said Dist.Ct. abused its discretion by ordering new trial b/c verdict for went against the great weight of the evidence. Dist.Ct. imposed its judgment of testimony re: credibility of witnesses for that of jury’s since rat’l jury could have found credible. This denigrates the jury system. New trial for flawed result must be perceived as clear injustice and seriously erroneous result (miscarriage of justice standard), though result looks more like standard = JNOV standard. Ct.App. says should decide if procedural flaw or flawed result, and if was simple or complex case. Ct.App. says Dist.Ct. should give more deference if simple case, as this one was. Ct.App. imposes stricter abuse of discretion review if Dist.Ct. orders new trial for against wt. of evidence rather than procedural flaw. Dist.Ct. should be careful to say jury was wrong & usurp jury fn. To take this kind of case away from jury suggests Dist.Ct. overreached & substituted its judgment on evidence for jury’s. If procedural flaw, Ct.App. will aggressively review for flaw de novo but, if finds flaw, great deference to Dist.Ct.

6) Lind dissent suggests diff. standard of Ct.App. review of Dist.Ct.’s order of new trial: If a reasonable judge could says it’s against great weight of evidence, should give the Dist.Ct. the call.

7) C cannot order new trial simply because it disagrees with the verdict, as though Ct. was member of jury.8) If Ct. keeps ordering new trials, which it can, Ct. may give in if keeps getting same verdict, or parties

may settle, or seek writ of mandamus, or side Ct. wants to win may improve case 2nd time through & win9) A grant of a new trial coupled with a denial of a JNOV is not appealable b/c it is not a final

judgment. But a grant of a JNOV coupled with the conditional grant of a new trial = appealable (Lind). Must file both motions together--filing one doesn’t toll 10-day time on other.

Standard of Appellate Reviewa) If flawed procedure or any issue of law, can review de novo. (App. Judges are specialists in

such legal questions)b) If v. great weigh of evidence, delicate decision because only trial judge has had opportunity to hear live testimony: rare for App. Judges to 2nd-guess trial judge. Still, trend has been for CoA to review new trial grants under an abuse of discretion standard – Gasperini v. Center for Humanities, Inc.

10) Rule 59, unlike JNOV under FRCP 50, does not prevent moving for New Trial b/c verdict against weight of evidence if party did not move for Directed Verdict at end of all the evidence.

11) Judges can grant conditional (partial) new trials:a) For trial on the damages or any single issueb) Remittitur – judge orders a new trial unless agrees to less damages when the damages (two

tests): i) “shock the conscience of the Ct.”

ii) “passion, bias, or prejudice”c) Additur--Unconstitutional b/c jury never awarded that much in damages (not just a reduction).d) Three tests to calculate proper damages:

i) highest amount a jury could award


ii) reasonable amount iii) lowest reasonable amounte) Problem w/ new trial on damages is jury might give small damages out of sympathy to who

ought to lose or reduce damages down b/c of uncertainty on liabilityf) Problem w/ separating liability & damages is jury may not have separated them in 1st place--

may not have excluded passion, don’t understand case or were driven to find negl. to give damages jury wanted to give. Excessive damages may reflect infirmity in liability as

well.

FRCP 59 - New Trials(a)(1) - Ct. may grant new jury trial for any grounds on which new trials granted in Cts. of law in US.(a)(2) - Ct. may grant new bench trial for any grounds on which new trials granted in Cts. of equity in US.(a) - Ct. may open judgment if one entered, take add’l testimony, amend findings of fact & concl. of law or

make new findings of fact or concl. of law, or direct entry of a new judgment.(b) - requires that a motion for new trial to be filed no later than 10 days after entry of the judgment.(c) - if affidavits filed w/ mn. for new trial, opposing party has 10 days to respond, and w/ C’s permission, 20 days.(d) - allows for Ct. to order new trial on its own initiative no later than 10 days after judgmentINSERT FIGURE 22-2 in GLANNON!

XIV. Appeal - FRCP 46, FRCP 52, FRCP 58, & FRCP 61A. Appellate System

1) In fed’l cts., all parties have one appeal to Ct.App. as of right.2) But U.S. system operates w/ a heavy presumption that trial ct. decision is correct--appellate cts. do

not supervise trial cts. 3) Why limit number of appeals?

a) conserve judicial resources/efficiencyb) preserve confidence in system so jury trial taken seriously, see Cts. know what they’re doing.c) i) trial cts. see the trial in context & can ask for more info. as Ct.App. cannot

ii) won’t likely come up w/ better result from Ct.App. except on pure legal questions. 4) Limit number of appeals through rules about timing of appeals and scope of review, and limit who can

appeal, what decisions can be appealed, and depth of scrutiny Ct.App. exercises in review.5) Have limits through adversity, finality, & waiver to ensure:

a) trial = main eventb) trial ct. has control over trial free from Ct.App. interference

B. Who May Seek Review?1) Adversity - judgment must at least look different from relief you requested

a) If relief sought under other, losing theory was identical to that awarded, no appeal will lie.b) If rejected theory would have entitled appealing party to a different relief, then appeal

lies, for judgment is “adverse.”a) Objective standard = legal consequences of judgment received must be of different quality

than relief requested. Might also appeal if lesser amount of dam. than requested.b) Justification for Adversity Rule:

i) waste of time & judic. resources if no one really hurt ii) someone else will better & more zealously prosecute same claim in case w/ a real

injuryc) Collateral Consequences:

Case - Aetna Casualty & Surety co. v. Cunningham - 5th Cir. - wanted ability to appeal fraud even though won on contractual basis & both causes of action = same $$ relief b/c might go bankrupt and fraud cases are given a higher priority than contract cases in bankruptcy proceedings. “We hold therefore, that when as a practical matter, the denial of any one claim results in not getting the relief to which it claims to be entitled, whether in the amount or in the quality of the judgment, it has a right to be heard on appeal.” In case itself victory short-lived, for court found for rejection of fraud claim.

2) Mootness a) one may not appeal when circumstances have changed in such a way that relief is no longer

possible/expired and is no case or controversy any longer, as required by Article III of


Constitution.b) Exception – when the decision may have some affect upon other cases.

3) Waiver - FRCP 46a) May only appeal decisions on issues that have been raised first at the trial court level.b) Justification for Waiver Requirement:

i) trial ct. should have a chance to reverse its own ruling if error is timely pointed out ii) trial ct. can better decide objection in context of entire trial iii) make record strong enough for Ct.App. to make a determination on trial ct.’s ruling

c) Prevailing party at trial can, at the same time as it defends its victory, also cross-appeal, arguing that it should have won even more than it did.

d) Exceptions:i) Plain Error Rule = interest of entire legal system mandate review (very narrow);

“where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.” ii) Intertwined w/ issue that was preserved for appeal & can’t be reviewed separately;

Baker v. Texas & Pacific Railway. iii) Jurisdictional issue may be raised at any time, even in S.Ct. for first time iv) avoid injustice if party can’t raise issue from new law b/w trial & appeal (see Carson

below) if:1) Is dramatic enough change in law?2) Can be briefed as purely legal issue or requires remand w/ directions

to consider new law if requires resolution of new factual issues?

Case - Carson Products v. Califano - 5th Cir. - If party seeks to raise new issue on appeal for first time b/c of change in law b/w trial and appeal, the change in law must be fundamental and does not raise new disputed fact issues. Parties can brief and argue legal issues but can’t introduce new facts on appeal--so no prejudice to opponent if only new legal arguments. Also, if only legal issue, that is realm of Ct.App.’s competence but Dist.Cts. = better at finding facts and applying facts to law, and Ct.App. shouldn't get into that where Dist.Ct. hasn’t.

e) Straight challenge of legal conclusions: United States v. American Ry. Exp. Co.:1) Appellee may not attack decree of trial court with view either to enlarging his own

rights or of lessening adversary’s rights.2) Appellee may, w/o a cross-appeal, urge in support of a decree any matter appearing in

the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it.

Case - Massachusetts Mutual Life Ins. Co. v. Ludwig - S.Ct. - Can appellee raise new substantive legal issues in absence of a cross-appeal? S.Ct. says appellee could not attack lower ct. decree in order to enlarge its own rts. or lessen opponent’s rts. But may, w/o taking cross-appeal, support lower ct. outcome/ruling by attacking lower ct.’s reasoning or claiming a matter was overlooked or ignored. Here ’s claim that IL not MI law applied was only attack on Dist.Ct.’s reasoning to urge affirmance of same favorable outcome to , and wouldn’t appeal b/c has no adversity. Ct.App. wrong to think was challenging the judgment itself of Dist.Ct. & not its reasoning.

FRCP 46 - Exceptions Unnecessary - need not formally take exception but must merely make known to Ct., at time of ruling, actions party wishes Ct. to take or party’s objection to ruling and grounds. But if part has no opportunity to object at time ruling or order is made, absence of objection won’t prejudice the party.

4) Deterring Appealsa) No Const. rt. to appeal in civil cases though all U.S. jurisdictions allow at least one civil appealb) States can set penalty statute to discourage appeals. Bankers Life & Casualty Co. v. Crenshawc) interest in discouraging frivolous appeals & provide measure of compensation for appellee who

endured successful litigation.d) want trial to be the momentous event, not “first step weigh station en route to endless

rehearings and reconsiderations.c) S.Ct. has said that some burdens on appeals are constitutional, and federal system may but

doesn’t have to, award costs to prevailing party on appeal


C. When a Decision May be Reviewed1) Finality - 28 U.S.C. § 1291

a) Final Judgment Rule = “A final decision [not judgment] is one which ends the litigation on the merits and leaves nothing for the Ct to do but execute the judgment.” (Catlin v. United States)b) Because many cases settle, Final Judgment Rule eliminates, not just deters, appellate review.c) Final Judg. Rule makes much more sense under common law than FRCP b/c so many Dist.Ct.

decisions are made during discovery and will never be reviewed.d) Justifications:

i) costs of interlocutory appeals outweigh the benefits, obtain judicial economyii) avoids problem of delaying trials as interlocutory matter are decided.

iii) system works b/c Dist.Cts. do get it right majority of the time b/c otherwise would have lots of incorrect trials taking up cts.’ time & might be worse than time it would

take Ct.App. to supervise Dist.Cts. iv) by adopting equity procedure but retaining the common law rule for appealability,

modern process has delegated substantial amounts of unreviewable power to the trial court.

e) Arguments against:i) appeals not as expensive as trials

ii) Parties may abandon meritorious claims b/c of time constraints.iii) NY doesn’t recognize: immediate appeal may avoid an unnecessary trial if thequestion is one that will decide whether the suit should proceed OR may result in a better trial as all preliminary issues will be resolved fully.iv) FJR effectively prevents some orders from ever being reviewed because they do not affect the merits

2) Appellate Jurisdiction and the Final Judgment Rule - 28 U.S.C. § 1291 a) defines moment at which appeal is properb) grants jurisdiction for Ct.App. to hear that appeal

3) Guessing wrong on proper timing of appeal can affect jurisdiction--see case:

Case - Liberty Mutual Insurance Co. v. Wetzel - S.Ct.(raised issue on its own) – S.Ct. held that Ct.App. did not have jurisdiction to hear appeal b/c Partial Sum. Judgment to on liability is not

final judgment (only interlocutory, by defin., in FRCP 56) under § 1291 where damages aren’t resolved. Here asked for injunction which Dist.Ct. indicated it would grant but never did. (Cts. Often leave it to parties

to draft their own injunctions. appealed b/f issued and asks for stay & Dist.Ct. said it would hold off altogether. FRCP 54(b) doesn’t apply b/c it deals w/ final judgments as to one or more but not fewer than all of the

claim in a multi-claim action, but advanced a single legal theory from one set of facts but many forms of relief, none of which received. Even if got decl. relief as att’y, when put on the spot, claimed at oral arguments. S.Ct. raised jurisd. issue itself after oral arguments.

If DC had granted injunctive relief but had not ruled on respondents’ other requests for relief, this interlocutory order would have been appealable under §1292(a)(1): “interlocutory orders of the [DCs] of the US … granting, continuing, modifying, refusing or dissolving injunctions [& others]” are immediately appealable. Doesn’t apply to TROs.

Even if refusal to do anything by Dist.Ct. was a kind of refusal of injunction request, only could appeal that decision acc. to § 1291 (a)(1) b/c adverse to . Did not appeal w/in 10 days so § 1292(b) doesn’t apply, even assuming Ct.’s written certification under FRCP 54 works.

§ 1292(b): “When a district judge … shall be of the opinion that [an] order involves a controlling question of law as to which there is substantial ground for difference of opinion AND that immediate appeal from the order may materially advance the ultimate termination of the litigtation … [he can] permit an appeal to be taken from such order … within 10 days after the entry of the order.”- Buss thinks there should be more of this but rarely used because embarrassment to a judge.

4) Premature Filing of Appealsa) F.R. App. P. 4(a) - if file when think it’s final judgment but other rulings follow, appeal held

in abeyance not thrown out.


FirsTier Mortgage Co. v. Investors Mortgage Insurance Co.: Applied this standard even though judge had announced only his intent to offer a summary judgment, not the SJ itself, much less the separate document embodying the judgment

b) Separate-Document Rule - FRCP 581) attempts to clarify moment of final judgment2) Each verdict must be set forth on a separate document, but it is still appealable if the

separate document never appear if parties believe it is final judgment & clerk enters it as such. Parties can waive sep.-doc. rule and appeal even b/f findings issued, so long as reasonably believe it is a final judgment.

3) One can appeal a judgment, and not necessarily have to wait for the document that states the judgment.

D. Exceptions to the Final Judgment Rule Already saw statutory ones.1) Practical Finality/Collateral Order Doctrine: judicial one***Collateral Order Doctrine = an immediate appeal may be taken from an order that is final and

unrelated to the merits (collateral) but that, if it is not appealed immediately, may result in irreparable harm to the appellant. Cohen v. Beneficial Industrial Loan Corp.

- focus is mainly on irreparable harm aspect. Case - Lauro Lines v. Chasser - S.Ct. - argued that the collateral order doctrine made appeal of Dist.Ct.’s denial of motion to dismiss claim from NY Dist.Ct. permissible. S.Ct. held that the Dist.Ct.’s denial of 12(b)(6) was not a final judgment that ended litig.--indeed ensured it kept going. S.Ct.’s characterization of ’s right = controlling of decision of case. Rt. to be sued elsewhere is like personal jurisd. claims which have not been allowed review under col. order doctrine, rather than immunity claims. Rt. to be sued elsewhere is not = to rt. not to be sued at all. Policy favoring foreign-forum selection clauses went to merits not issue or appealability. could not appeal denial of 12(b)(6) under col. order doctrine b/c can be vindicated on final appeal. Scalia concurs saying that rt. is not important enough as to overcome the policies militating against interlocutory appeals, though lack of appeal clearly destroys any rt. has to try case in Italy.

a) Not an exception but a gloss on orders saying they are (practically) final for appell. purposes--arose not under statute but under S.Ct. case of Cohen

b) Collateral Order Doctrine requires:i) It would conclusively determine the disputed question

ii) Resolve an important issue completely separate from the merits of the case iii) Be effectively unreviewable on appeal from a judgmentc) Unreviewable means that “only unreviewable where the order at issue

involves an asserted right the practical and legal value of which would be destroyed if it were not vindicated before trial.”

d) i.e., when rt. = rt. not to stand trial or be sued at all (absolute or qualif. immunity, etc.): still, objection must turn on law, not on facts, Johnson v. Jones.

e) Orders held practically final include: immunities (absolute [Nixon v. Fitzgerald] & qualified [Mitchell v. Forsyth]), denial of a motion to proceed in forma pauperis, denial of a motion to impose security costs in derivative suit, denial of a motion to require P in class action suit to send individual notice to all unnamed

class memb See Yeazell (766-767) for list of orders not found practically final.

2) Interlocutory Appeals of Injunctionsa) 28 § 1292(a) - Interlocutory orders re: injunctions may be appealed.b) Does not include TRO b/c of their short duration (10 days)c) Denial of Sum. Judg. in one seeking permanent injunction does not give way to a right of

immediate appeal. Just one step on the way to trial.3) Interlocutory Appeals under 28 U.S.C. § 1292(b)

a) Allows Dist.Ct. to certify interlocutory appeals from nonfinal judgments. b) Dist.Ct. must certify that the order “involves a controlling question of law as to which there is a

substantial ground for difference of opinion.” And that “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”


c) Party must appeal w/in 10 days of Dist.Ct.’s certification.d) Ct.App. has discretion whether it agrees it is an imp’t enough issue to review or thinks Dist.Ct.

likely to get it right and can wait until gets case on appeal of right of final judgment. e) Justifications:

i) law may have changed & Dist.Ct. thinks it might get it wrong ii) law has never been decided, and may be more efficient to have Ct.App. decide law

first iii) there is no issue of integrity of trial cts. b/c Dist.Ct. chooses to seek Ct.App. review

4) Mandamus - 28 U.S.C. § 1651a) not = an appeal at all--Ct.App. has original jurisdiction in separate proceedingsb) control behavior of Dist.Ct., oders a public official to perform an act required by law:

usually a judge in these situations.c) commonly used when denying rt. to a jury trial--trial cts. aren’t offended at this use of

mandamus review but find others offensive, in-your-face tacticE. Scope of Review

1) Three standards:a) de novo - applies to Ct.App. review of Dist.Ct. legal determinations/appl. of law to facts: this is

the fullest scope of review re: errors of law. CoA can start from scratch in light of record

& determine how law should be applied. (Remember such determinations prior)b) abuse of discretion - applies to Ct.App. review of Dist.Ct. legal concl. /appl. of law to facts.

Issue-specific what the range will look like: e.g. Amendments “for justice,” Rule 11 only to deter, etc. Broadly deferential

c) clearly erroneous - applies to Ct.App. review of Dist.Ct. fact-finding in bench & jury trials. Deferential & soft (Dist.Cts. decide fact issues in jury trials re: relating back, Rule 11 invest. by att’ys)

2) Law and Fact - FRCP 52(a):

Case - Anderson v. Bessemer City - S.Ct. - If 2 permissible views of evidence, should go w/ Dist.Ct.’s interpretation b/c Ct.App. is not supposed to do de novo review of findings of fact unless Dist.Ct.’s reading = clearly erroneous. Trial cts. alone can assess credibility, and even if record is enough to decide, trial cts. have more expertise at determining facts b/c of experience. Ct.App. wrong that closer scrutiny required where Dist.Ct. accepted ’s proposed findings of fact verbatim that was discriminated against in hiring of rec. center director.

a) Anderson: proper roles of courts:i) Dist.Ct. = determine if presented an acc’t that is more likely true than not true

ii) Ct.App. = “determine whether the trial judge’s conclusions are clearly erroneous.”b) Where trial judge sits w/o jury, Findings of fact entitled to a deferential standard of reviewc) Two readings of Anderson:

i) Empirical Belief that Trial judge is more likely than Ct.App. to be correct in judging if witnesses telling truth. (Evidence suggest this is not true – better lie detection from transcript than a live witness.) Grew out of law/equity distinction.

ii) A judgment must be rendered, & uncertainty makes it sensible to go w/ belief of trial ct.

d) FRCP 52(a) encapsulates the Anderson ruling - “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial C to judge the credibility of the witnesses.”

3) In relation to Rule 11 sanctions (as an example)a) determinations of historical fact = reviewable under ‘clearly erroneous’ standard of

Andersonb) determinations of legal sufficiency = reviewable under abuse of discretion standardc) the fashioning of the sanction = reviewable under the abuse of discretion standard

4) Conclusions of law are not entitled to any deferential treatment by Ct.App. b/c that is its expertise5) Harmless Error - FRCP 61


a) Federal Cts. prohibited by statute from reversing for ‘errors or defects that do not affect the substantial rights of the parties’ 28 U.S.C. §2111

b) to determine if harmful, Ct. asks if case likely to come out the other way if error didn’t occur?Two-part test: a) was there error? & b) was the error harmless? leaves a lot of room for debate** Such assessment is tricky business. Not the abstract importance that makes it different, only how

it directly affects the trial.

XV. Alternative Dispute ResolutionA. Settlement Negotiations often collapse (& require ADR) b/c:

1) parties have different estimates of expected outcomes2) one side bluffs although have same estimate of expected outcome of case

B. Mediation (Guided Negotiation): AT THE DISPUTE1) A third party is brought in to help the two conflicting parties to settle the dispute--pretty uniform

arrangement -- facilitation2) Usually works well a) when it aims at altering the relationship btwn 2 parties & b) if the two conflicting

parties have known each other for a while & reached a critical stage in their relations.3) Seeks to engage parties in a structured set of discussions leading to agreement4) Trust is very important5) Mediator has no coercive power (no rulings on rights and wrongs of dispute or telling parties what to

do), process is non-binding (only succeeds if parties agree) & can go to Ct. still if it fails6) not usually contracted for or agreed to prior to dispute7) Yeazell says family conflicts idea for mediation.8) Arguments against (Tina Grillo): (special threat to women)

a) imposes a rigid orthodoxy on how a woman should speak, make decisions & beb) can exacerbate power imbalances b/c women are more relational than men & will naturally be

more receptive to making concession for sake of relationship that man may not--tells women it’s empowering them but is actually forcing them to acquiesce in own oppression

c) may skew parties’ views or mediators may refuse to let parties discuss past eventsd) more subject to manipulative liars (like abusers) than courts (“the parent with the fewest

scruples wins”) or no better at handling manip. so why choose equal or inferior alternative?

e) mediators may have power to make recommendations to Ct. that Ct. will almost certainly accept & may thereby become decision-maker by forcing vws. of dispute upon one party. Form of coercion by mediator do what I say or I’ll go to the judge and recommend your husband get custody.

f) Mediation with such flaws is more disempowering than adversarial systemNOTE: objections c) & d) may just be mediation gone wrong & demonstrate problems with what mediators

themselves bring to the table & not problems w/ mediation itselfC. Arbitration: PRE-NEGOTIATED BEFORE DISPUTE

1) Third party is brought in to decide the dispute, and result is binding on the parties: arbitrator replaces judge, as a whole displaces court system.

2) Federal Cts. now recognize and enforce arbitration agreements if parties agreed to it b/f dispute arose3) If enter into predispute arbitration, may be required to use arbitration as your exclusive forum.4) Advantages

a) Permits parties to design their own procedure--very wide variety of procedures in useb) Parties have some control over the substantive law appliedc) Faster, Cheaper, more private & confidential (e.g. dispense with discovery)d) Assurance of an expert in the field & eliminate vagaries that a jury may introduce

Case - Ferguson v. Writer’s Guild of America - Cal. Ct.App. - Decision of the Writer’s Guild’s arbitration panel on who should get credit for Beverly Hills Cop II. Ct. deferred to the expertise of the policy review board (“credit-determination process can be handled both more skillfully, more expeditiously, and more economically by Writers Guild arbitration than by courts.”) and held that the decision was legitimate and nonjusticiable as to credit determination itself. “Ct. does not review the merits of the arbitrator’s award; it examines only whether the parties in fact employed deprived the objecting party of a fair opportunity to be heard and whether the arbitrators exceeded their powers.” did not exhaust admin. remedies b/c did not present specific objections to Policy Review Bd.


5) Due Process Concern: In private arbitration the due process clause does not lie at hand because the prerequisite state action is absent. Instead, situation is treated as a contractual one in the courts: make sure all clauses are followed and there is no breach can attack agreement itself on adhesion or unconscionability. Ferguson is an example of treating as contract.

4) Limits:a) In some disputes, such as divorce, arbitration agreements are unenforceable (i.e. child custody)

but do allow for child support arbitrationb) Issues of public law probably beyond scope of arbitrationb) cannot appeal a case (overcome w/ Rent-A-Judge: eliminate wait for trial. Prob: only

available to those who can afford it.)c) if litigant wants a formal, authoritative, public declaration of law or other advantages to the

legal proceedingd) Possible lack of legal training by the arbitere) no formal discovery under FRCP f) Inability to obtain review for ordinary errorsg) Growing tendency for arbitration to become more formalized & burdensome (no effic. gains)h) formality & officialness can = advantages of Cts. & no juryi) concern about coercion into pre-conflict arbitration agreement: do parties know what they’re

getting into?5) Court’s review = limited to:

a) whether parties actually agreed to submit disputes to arbitrationb) whether the arbitrator exceeded the power granted by the agreement--Ferguson: “material

and prejudicial departure from the procedures specified”c) if was abuse of power, Ct. may step in & make its own substantive determination

6) Ct. will tolerate an arbitrary mechanism more if (fairness inquiry):a) party entered into agreement w/ eyes openb) had control over procedure’s design

7) Ct. will look disfavorably on procedure if party was coerced into arbitr. proced. and will balance:a) arbitrariness (coin-flip = random)b) how much control had in choosing procedure

7) Arguments against arbitration (David Luban ):a) Adjudication is instrumental for other values to win wide acceptance in the law:

-- public good in that it produces rules and precedents-- good for parties to a dispute to be able to fob a loss off on a third party not present at

bargaining tableb) Adjudication is an intrinsic good that is a sign of a healthy democratic society, like free

elections:-- Legal rules produce certainty & are good b/c reasoned elaboration & public expression

of public values-- Provides occasion for law & politics it codifies to assume a tangible form-- Resolving & refining of political action: take that away and get interminable conflict

D. Even though have 2 here (mediation & arbitration) there is a lot of variety.

XVI. German v. American Civil Procedure Both America and Germany have adversarial system of civil procedure. The German advantage consists of

assigning judges rather than lawyers to investigate the facts.

A. Overview1. 2 Differences: one mentioned above & no pretrial/trial distinction, i.e. between discovering evidence and

presenting it.2. Initiation (Pleading): Like American has key facts, legal theory & remedy, but goes beyond notice pleading by

also proposing means of proof for factual allegations = major documents in P’s possession; other docs (gov recs., etc.; names of witnesses. Answer follows the same. No significant search for evidence of witnesses on either side. U.S. Response: No protection for potentially meritorious claim where proof is in hands of adversary or is initially weak.

3. Judicial Preparation: creation of dossier (court file) open to counsel’s inspection


4. Hearing: Schedule for attorneys, parties, even witnesses5. Examining & Recording: Judge = examiner-in-chief, though counsels can ask ?s too. Then produces summary

of the testimony: encapsulate succinctly results of previous hearings. No minor, unimportant details or duplication. Very economical approach compared to US verbatim transcripts. Also does away with rules of evidence.

6. Expertise: Court selects expert & defines his role7. Further contributions of counsel: can comment orally or in writing after court takes testimony: merge

investigatory function of US pretrial discovery& evidence-presenting function of US trial.8. Judgment: written judgment w/ findings of fact and reasoned application of law

B. Control of Sequence1. No concept of “P’s case” and “D’s case”2. Judge investigates dispute in fashion most likely to narrow inquiry (US worry of biased judge narrowing to

categories he likes or into direction he thinks case will go)3. Episodic character eliminates danger of surprise; minimizes unnecessary investigation; lessens tension and

theatrics; encourages settlement & compromise tone of routine business mtg & not high drama. TRIAL EFFICIENCYComp. U.S. w/ summary judgment: Ct. does not have authority to decide factual issues, only legal issues. Our Rule

42 allows some segmenting.C. Witnesses

1. US system impairs reliability of witness testimony: partisan nature of system makes partisans of witnesses. Plus cross-examination is ineffective at undoing good coaching: “frail and fitful palliative.”

2. German system distinguishes parties from witnesses: lawyer nominates but never has outside contact with witness, avoids distortions of partisan practice. (US response: less reliance on judge good, more comprehensive)

D. Experts1. In US thought of as “saxophones” played by lawyers who hire & $$ them; becomes battle of opposing experts

that invites abusive cross-examination to cast as “professional witness”. Leads to systematic distrust & devaluation of experts.

2. In Germany they are “judges aides” frequently sought. Credible = neutral & objective. Court selects and instructs expert, can chose from list or pick from counsels’ recs. Experts build business reputations with the bench. Court welcomes adversary suggestions. Expert must prepare written opinion. If litigant can persuade court expert was sloppy or partial, etc. court will commission further expertise.

3. Why not use of court-appointed experts in US? Presupposes early & extensive judicial involvement which don’t have.

E. Shortcomings of Adversary Theory1. Outside of realm of fact-finding, German civil procedure is as adversarial as ours2. Don’t get confused with concern of criminal procedure: not trying to systematically err in favor of one class of

clients here.3. Inequality of counsel overcome by German way: “the active role of the judge places major limits on the extent

of the injury that bad lawyering can work on a litigant.” (US response: not necessarily at pleading stage where framing is so important.)

4. Cry of risk of prejudgment in German system is off: their system is like that of ordinary business relations, repeat players, danger is overstated (US response: but could still be there, plus don’t get claims that have little proof; efficient use of judges time; better rep of client; no concern of pre-judgment by judge; duplication can bring out truth by seeing consistency)

5. Appropriate level of depth: less sensitive to costs of incremental investigative steps. Could express problem of aversion to “fishing”, but the confined, narrowed scope of fact-gathering by judge eliminates waste, not valuable investigation. Might have concern of inquisitorial zeal, but overstated here too. (US response: fishing important)

F. Appellate Review1. Require that the first-instance court disclose in writing if finding of fact and reasons of law

o Thoroughness is legendaryo Bulwark v. arbitrary or eccentric adjudicationo Don’t have the US problem of why judge acted in way he did

2. De novo standard of review: OLGo No presumption of correctness attached to initial judgmento Extreme economy of system makes this possible: retrial=rereadingo Guaranteed a second look by panel of long-experienced judges on matter of fact and law.o Response to earlier concern about danger of prejudgmento Then goes to higher level of review (BGH) for review of error as in US


o Complaints about misuse of judicial power extremely rare.

Pleading:German: Appending of Proof: Adv.US: Short, plain statement of the claim, just enough so opposing party knows where to go.

Review

Greene v. Lindsey: think outside rules: cost, issues, what hangs on this, prob of error and impact. What Constitution permit. Rules can be more specific than this.

Complaint: big change was shrinking of role of complaint: short & plain statement in Rule 8. No overscreening or throwing out on technicalities. Code pleading tried but had own rule that was technical quandary facts only no conc hard to distinguish. Rules got away from this; sometimes conclusions are enough: a functional standard: is there enough so parties for whom it matters can respond?

Rule 11 & 12(b)(6): 2 big screening tools. 11 all writings filed w/ court other than discovery. Signing reasonable investigation, etc. No HAVE to impose sanctions. App Review: abuse of discretion. very deferential but some factual determinations reviewed under clearly erroneous standard. Why not de novo? ? is not what is the law but is argument reasonable?12(b)(6) in pre-answer, generally motion for failure to state a claim challenge legal sufficiency can be brought all the way up to trial (even after motion for judgment on the pleadings.) Generally amendment allowed at least once. App Review: de novo because a legal ?. Determination of allowing amendment is abuse of discretion because it’s court’s call. Even so common for Ctof App to find abuse of discretion if opp to amend is not allowed.

Other 12 repsonses. 4 of them have to be raised in first filing if not claimed waived because just not important enough move on w/ the case. Not so w/ failure to state a claim & jurisdiction just too important.

IF claiming base don trial evidence no claim – JNOV/DVIf based on paper representation no claim SJIf just the law –> any of the 3

W/in 20 days of filing or 10 days after response to pre-answer motion, D’s gotta answer at level of specificity. No general denies could but bad idea. Denials v. affirmative defenses (change legal significance of case: yes … but) Failure to assert aff def could lead to inability to raise later but generally happens rule 15 amendment “freely given as justice requires.” But worry @ prejudice / bad faith. ***Don’t confuse this with whether amendment will relate back: ONLY apply where SOL has run and ONLY apply to complaints P’s action. When D seeks to amend, a P may be prejudiced also. Gotta relate back even if no prejudice: arise out of common nucleus of fact15(c)(3): did right defendant get notice of suit and but for error etc.Appeal review for amend: abuse of discretion w/ tipping in favor of allowing amendment. Factual determination of relation back under clearly erroneous. Does 15(c) apply de novo ? of law

Discovery Very broad everything relevant if not privilegedWork Product Test 26(b)(3)Non-testifying expertsBoth have exceptional circumstances exceptionApp Review: all three standards apply to pieces. Fact issue of work product: prepared in anticipation of lit: clearly erroneous standard. IF that constitutes in anticipation of litigation ultimately a legal call de novo. Undue hardship or exceptional circumstances is discretionary call.

Basic tools : interrogs, Rule 34 request for docs from parties, Rule 35 exams (most protected). Admissions v. pleadings, offer opp to admit or deny various claims used to clean up a case.Generally outside view of court. Motions to compel & for protective order & requests for sanctions when it falls apart.


Appeal: classic abuse of discretion terrain, but also some classic legal questions

Settlement encouraged by discoveryBefore filing or after a judgment vacatur issues & negotiation away life of judgment

Preliminary ReliefInjunction: harm of waiting too great, balance of harms & rough assessment of where merits likely to lie. 2 tests

see outlineAppeal Review: application of standard is discretionary, but application of TEST a question of law de novo

(bread case)Also encourages settlement. Why allow interlocutory appeal.

Summary Judgment looks at proof in paper form, docs appended to motion if fact conflict then no dismissed. If no factual conflicts and just judgment as a matter of law. DV/JNOV from trial evidence. Celotex expanded how often SJ used P can’t affirmatively prove. Need to look at discovery record. Often brought late in discovery process but need not be. Sometimes proof needed immediately available. Either party can file but Ds more likely to prevail.Appeal Review: de novo EVEN THOUGH look at facts, not discretionary because there is a right/wrong answer possible. CoA starts from scratch with factual record no deference.

If go to trial, sort go to jury or judge: by right or statute problems of new laws and tribunals, also collapse of law/equity tough application of 7th amendment. Look at history(claim) or relief? Admin tribunals diff enough get no jury, but if separate type of court still get jury right. Blend of legal/equitable: law first, equitable later (injunction). Parties haveto request, otherwise waived, but judge can still authorize. If judge denies, interlocutory matter, appealed as this to a mandamus action used sparingly immediate appealate review.

Jury selection: court for cause (bias) & peremptory challenges. Exception to latter & application of constitutional law: race & gender. Establish a pattern prima facie case, then other party must come up with neutral, precontextual Appeal: factual determinations, clearly erroneous standardEven w/ jury as fact finder not final word

Judgment as a matter of law and NT

DV/JNOV rational jury could have only gone the other way. Collapsed into JML. Must bring motion at close of all evidence prior to deliberation

New Trial: not taken from all juries. Procedural errors (instruction, evidence) detemination verdict OR great weight of evidence parallel of JML standard.

Appeals: final judgment rule. NT not final, but if coupled w/ JML, then alternative determination can be immediately appealable. More efficient here. Many states allowJML reviewed de novo legal determination w/ right or wrong answerNT discretionary: Lind, not too much deference though. W/ procedural errors very deferential. But not so much with great weight closer scrutiny: Lind standard, not universal.

Appeal

Final judgment rule if not final judgment can’t appeal it. Exceptions: injunctions, some sorting, 1292(b) trial ct can signal tough issue & asking for appeal court help & collateral order doctrine: resolution of certain issues as final and has own test: see outline. De novo review but much conflict over COD

ADR

Posner is a mediator: always ? of being a good mediator, how much does law expertise (content) or mediation expertise (process) matter or is it personality?

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