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Pleading14/04/2010 22:43:00

Civ Pro II-- Strickland


Pleading a. Common Law Pleading (no longer used anywhere) i. Writs and Forms of Actions 1. Became so stylized and formal that all you knew was the cause of action. 2. Lawyers could lose the entire case by choosing the wrong form, style. ii. Responsive Pleading 1. Dilatory Pleas (postponing procedural difficulties i.e. jrd) 2. Peremptory (meritorious pleabeyond dilatory) a. Demurrer i. Concedes facts alleged BUT contests legal sufficiency. ii. no basis for recovery b. Traverse i. Concedes legal sufficiency BUT the FACTS arent true. c. Confession and Avoidance i. Concedes BOTH facts and legality BUT offers additional facts that overcome liability. (self-defense) d. Problems i. In CL, counsel had to pick ONE of these pleadings. ii. This screening was very effective (for better or worse) iii. Did not accurately portray facts/ substance iv. Cases often decided on technicalities (game of skill) as opposed to the facts b. Code (Fact) Pleading

i. A statement of the facts constituting the cause of action in ordinary and concise language (Cal Code Civ Pro) 1. Courts became stuck on how detailed the facts had to be 2. Led to technicalities that threw out good cases, kept in bad ii. Problems

1. Complaints were too broad/conclusory 2. Complaints were too evidentiary/ fact specific, courts became hung up on how
much fact was required c. FRCP Notice Pleading i. Enacted in 1938 ii. Rule 7 1. New rules abolished demurrers

iii. Rule 8(a): Claims for Relief (must contain 3 things)

1. Statement of Jurisdiction

a. Fed courts are of limited jrd b. Why is the court allowed to hear this case?
2. Statement of the Claim a. Why should we hear this case?

b. state subject matter if applicable

3. Demand for Judgment

iv. Rule 8(d): greatly departed from CL by not requiring one single claim to be chosen. 1. Complaint does not have to be consistent, CAN allege any claims wanted, even if
entirely inconsistent 2. Form of the complaint (Hadley v. Garrison sample) a. Caption [R.10(a)] b. Formalistic intro- no purpose whatsoever but preserving archaic language c. Numbered Paragraphs [R.10(b)]very short paragraphs setting forth A fact.

d. Purpose of intro Statement e. General Factual Allegations-f. incorporation statement [r. 10(b)] reference. The facts above give rise to the causes of action. h. Prayer for Relief [r. 8(a)] i. 3. Signature [R.11]- must be signed by the lawyer(s) Stating a Claim [Rule 8(a)] a. Requires a short and plain statement of the claim showing that the pleader is entitled to relief. b. At a minimum, this implicitly requires a complaint to i. Invoke a body of substantive law (battery, negligence, antitrust) ii. Articulate a factual scenario that falls within that body of law 1. Complaint needs to allege the elements of liability 2. Historically, the complaint requires VERY little with regards to elements. Only enough information to put defendant on notice as to what your claim is about. iii. Conley v. Gibson (U.S. 1957) 1. a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove NO SET OF FACTS in support of his claim which would entitle him to relief. 2. Complaint need only give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. iv. Bell Atlantic v. Twombly (2007, seems to have changed pleadings, requiring more facts, law hasnt settled yet) g. Counts or Causes of Action [R. 10(b)]all factual allegations are incorporated herein by

1. Based on Elements of Sherman Act (Anti-Trust)

a. Agreement or Conspiracy b. To restrain trade (competition) 2. Require a. Plausible factual grounds from which one might infer the elements of a claim

b. Factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact). c. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

d. An allegation of parallel conduct and a bare assertion of

conspiracy will not suffice. Without, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. e. Proceeding to anti-trust discovery can be expensive. a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.

3. Rejects Conleys no set of facts standard.

v. Ashcroft v. Icqbal (2009) 1. Applies Bell holding to non-anti-trust case 2. Case was dismissed, citing Twombly extensively, bringing it further away from historical notice pleading vi. Even before Twombly, some types of cases require more information in the pleading 1. Federal rules FRCP 9 provide for heighted pleading in two instances: mistake and fraud 2. These were singled out based on the idea that these allegations were too easily fabricated and too potentially detrimental to defendants in the case of fraud 3. Congress has the authority to impose heighten pleading requirements as it sees fit a. It did this with private securities fraud 4. Commencing the Action a. Filing the Complaint [R. 3] b. The Summons [R. 4(a) & (b) & Form 1] c. Service of Process [R. 4] i. The preferred method today is NOT the formal service (sheriff placing summons on Ds person) ii. Typically a P will request a formal service waiver, which a D will sign off on. Why would a D ever sign off on this waiver? Incentives. If D signs off, he is given more time to file an answer. iii. If the D does NOT waive service, then you have to proceed with actual service of process. If youre serving an individual, you must personally hand D the process or hand it to a reasonable person at their home. 1. OR you may serve process according to the rules in the state in which you are filing. Often the states rules are very liberal when serving process to corporations. iv. Remember: satisfying Rule 4/state rule is only one step. Process must also comport with Due Process (Mullane). 5. Responsive Pleading



1. In American courts, the D must file some sort of answer or have a default judgment
entered against him. ii. Structure of FRCP 12 1. Rule 12(a): Timing 2. Rule 12(b): Defensesthese can be filed pre-answer motion. a. Lack of SMJ b. Lack of pers jrd-- waived if not plead c. Improper venuewaived if not plead d. Insufficient processwaived if not plead e. Insufficient servicewaived if not plead

f. Failure to state a claim upon which relief can be granted (12(b)(6))

g. Failure to join a party under Rule 19 - If any single waivable 12b defense is raised, if any others are available, they must be consolidated and made together if they are to be made at all; this rule prevents piecemeal and dilatory attacks on complains by the filing of successive motions under the Rule. The defenses for failure to state a claim and failure to join an indispensable party under rule 19 can be raised in any of the pleadings, by motion for judgment on the pleadings, or at trial. 3. These are the ONLY defenses that can been asserted in a pre-answer motion a. All other must be raised in the answer 4. Why is it that we allow pre-answer motions? a. Because these defenses are mechanical and preliminary, having nothing to do with the actual merits of the case. These pre-answer defenses allow both the court and both counsel to save time and money. 5. Other Pre-Answer Motions a. Rule 12(e): More Definite Statement


Rarely granted, but asks the court to force the complainant to more fully explain his complaint

b. Rule 12(f): Motion to Strike


Again, rarely granted. Used for highly inflammatory or prejudicial statement within the complaint

6. Rule 12c: Judgment on the Pleadings a. Rare, but if the defendant admits all of the pleadings, P is entitled to relief on the pleadings b. More likely: if complaint includes dates of occurring cause of action, D might respond with Statute of Limitations defense that, on the face of the complaint, warrants judgment for the D. 7. Rule 12(g) and (h): Sequence & Waiver iii. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

1. This claim deals both with procedure and merits. a. Procedural: this claim says that P has pled incorrectly/ improperly. P may
have a legit claim, so often the court will allow the P to amend the claim. (Allows lawyer to fix pleading if it was a procedural issue, doesn't help plaintiff if it was a substantive issue)

b. Substantive: even if the complaint is true, the law does not provide a
remedy for such a complaint

2. American Nurses Assn v. Illinois (7th Cir. 1986) 3. Hypo 6.4: Allegations in Complaint: Judy submitted statement to gang implicating Ed in recent theft of gangs property,
and her statement was false. Judy knew that the gang might retaliate against Ed by killing him. Upon receipt of the information, the gang beat Ed to death. Relevant Element of Virginia Wrongful Death Claim: o Judy solicited others to kill Ed. Yes because she probably knew the gang would retaliate Does Complaint sufficiently state a wrongful death claim? o iv.

Sequence and Waiver of Rule 12(b) Defenses 1. Rule 12(g) Joining Motions.

o Right to Join. A motion under this rule may be joined with any other motion
under this rule.

o Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a

party that makes a motion under this rule must not make another motion under this rule raising a defense . . . that was available to the party but omitted from its earlier motion. Must consolidate all 12(b)(6) defenses into one motion

2. Rule 12(h) Waiving and Preserving Certain Defenses. (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:

o (A)omitting it from a motion in the circumstances described in Rule 12(g)(2)

o (B)failing to either: (i)make it by motion under this rule; or (ii)include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others (failure to state a claim and failure to join necessary party) (3) Lack of Subject Matter Jurisdiction SMJ can be raised at any time; 12(b)(1) Failure to state a claim can be raised at any time up to trial; 12(b)(6) 12(b) defenses 2-5 must be asserted in the FIRST response to the complaint or they

are waived (this is rule 12(h)) v. The Answer 1. Requirement (Rule 12(a) and (b)) 2. Timing (Rule 12(a)) 3. General Content a. 12(b) Defenses b. Admissions- (Rule 8(b)) c. Denials- Rule 8(b) d. Affirmative Defenses- Rule 8(c) 4. Admitting & Denying AllegationsThe Zielinski Standard p. 382 a. Must admit or deny allegations in complaint line by line i. If defendant intends to deny part of an allegation, it should specify what it denies and specify what is true/admitted.

ii. Anything not denied in the answer is deemed to be admitted b. If any component turns out to be something that the D had no intention of denying, the court will be in position to declare the entire denial ineffective. c. The D neither admits nor denies the allegations in Paragraph Athis is a non-response, and will be treated as an admission under Rule (b)(6) 5. Affirmative Defenses

a. Rule 8(c): the failure to plead an affirmative defense ordinarily results in

the defense being waived. b. Concept and Definition

i. Litmus test for deciding if a defense is affirmative: Does your

defense require new facts to support it? Would the defense surprise P if pleaded at trial?

ii. Definition: Even if the allegations in a complaint are true and render
the defendant liable, the defendant is not liable for some other reason 1. The defense is an avoidance or excuse c. Approach to Drafting i. better to plead all defensive strategies. This caution is to prevent the trial court from denying the argument of a defense for being affirmative after you didnt include it in the answer. ii. Plaintiffs are under no duty to respond to affirmative defenses iv. Amendments to Pleadings 1. Rule 15 (a) governs amendments to the pleadings Allows parties to amend a pleading once as a matter of right: o o o o o o Before responsive pleading; or Within 21 days if no response is required Leave of court; or Consent of adverse party. Court will allow amendment unless it will prejudice the other party from presenting their case Courts will almost always permit amendments during discovery

Thereafter, amendment requires

Leave to amend shall be freely granted when justice so requires.

2. Amended Pleadings When Justice So Requires: Beeck v. Aquaslide

a. Finding Prejudice b. Compare Zielinski i. Zielinski (pretrial conference): Answer denied control. Honest misleading statement. Court did not allow D to deny control. ii. Beeck (during discovery): Answer admitted mfr. Honest wrong statement. Court allowed D to amend to deny mfr. iii. How are these reconcilable? The controlling factor probably is the fact that the Z case involved the same insurance company (which failed in its diligence). Also, to allow amendment in Z, it would have eliminated any CoA (amendment would have prevented Z from proving his case at hand). In Beeck, P still had some CoAs when/if amendment was allowed. Additionally, in Z, the D made motion right before trial, in pre-trial conference. Judge did not allow such a late, and material, amendment to the case. c. Bifurcated Trial

i. D made motion, which the court granted, to split the case into 2
issues1) who manufactured the slide and 2) was there a defect, did it cause injury

ii. B/c the case hinges on who made the slide, the Ds didnt want the
jury to hear any evidence about the injuries to the P d. Abuse of Discretion Standard

i. Has nothing to do with the trial court being right/wrong, only an issue
of discretion 3. Amendments & Relation Back (RB only applies when SoL has run)[R. 15(c)] a. A claim is filed, and after being filed, the statute of limitations runs, then the plaintiff wants to amend the claim i. 15c treats amendment changing claims differently than those changing parties a. Amendments to Change Claims & Allegations i. Amendment relates back if: Claim arose from the same conduct transaction or occurrence as in the original pleading ii. If a party presents evidence at trial that goes to an issue not raised in the pleadings, the opposing party may object to the presentation of such evidence. b. Amendments to Change the Defendant

(1) An amendment to a pleading relates back to the date of the original pleading when: (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by the amendment: i. D received such notice of the action that it will not be prejudiced in defending on the merits; and ii. D knew or should have known that the action would have been brought against it, but for a mistake concerning the partys identity.

Ensuring Truthful Allegations

FRCP 11 o o o o 11(b)(1)attorney must have reasonable motivation for submitting a paper to the court 11(b)(2)judged by an objective legal standard, a reasonable basis for the position must exist. 11(b)(3)factual basis must be made in pleadings 11(b)(4)evidentiary basis for denials

a. Rule 11 Notes i. Requirements 1. Signature a. initially certified when signing; renewed signature every time you argue or present it b. attorneys must sign all documents submitted to the court i. discovery has its own rules 2. Certification a. Reasonable Inquiry (under the circumstances) b. No Improper Purpose c. Legal contentions are warranted by law (or reasonably supported by law) d. Factual contentions (and denials) have evidentiary support 3. Applicability and Timing of the Certification

a. Rule 11(b): When presenting to court (ie signing, filing, submitting, or

advocating) i. Each time one of these events happen, you are re-certifying that the documents are true at that time 4. Procedures for Imposing Sanctions a. Separate Motion

i. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). 1. Must be served 21 days before being filed with the Court (safe harbor period) a. If offending document is then fixed or withdrawn in 21 days, that is the end of the Rule 11 process

2. If warranted, the court may award to the prevailing party

the reasonable expenses, including attorney's fees, incurred for the motion. b. Safe Harbor Provision i. Allegedly improper assertion can be amended or recanted within 21 days after service 5. Sanctions

a. Discretionary: court is not required to impose sanctions, up to courts

discretion i. Court may impose sanctions on its own initiativeto impose sanctions SUA SPONTE, it must enter an order describing the specific conduct that appears to violate subdivision b. b. Attorney, Law firm or Party i. Monetary sanctions may not be awarded against a represented party for frivolous legal arguments advanced by the partys attorney. 1. The attorney could have monetary sanctions however 6. Application to Hadges v. Yonkers a. Violation by Plaintiff Hadges b. Violation by Plaintiffs lawyer, Kunstler


A. What is the purpose of open discovery? Preserve evidence Narrow the issues Obtain evidence

B. The Scope of Discovery: Relevance FRCP 26(a)at certain stages in the litigation, you MUST provide certain documents without those documents being requested. Rule 26(b)(1): o Any non-privileged matter that is relevant to any party's claim or defense Very general and sweeping rule allowances, as privileges (formal prohibitions) are a very small limitation Relevant information need not be admissible, but must be calculated to lead to the discovery of admissible evidence 1. Rule 26: Core Provisions a. Required Disclosures & Methods of Discovery [R. 26(a)] b. Scope & Limits of Discovery [R. 26(b)] i. General Scope: 26(b)(1) ii. Discretionary Limits: 26(b)(2) iii. Specialized Limits: 26(b)(3)&(4) c. Protective Orders [26(c)] d. Timing & Sequence [26(d)] i. Difference in state rules e. Duty to Supplement [26(e)] f. Meeting & Discovery Plan [26(f)] i. Unique to federal rules g. Signatures & Certifications [26(g)] i. Miniature Rule 11 Provision for discovery

ii. Requires sanctions if violated 2. Rules 30-36: Rules that indicate how to requires parties to provide discovery information a. Interrogatories to medical exams 3. 4. Rule 37: How the court controls or enforces the discovery process if necessary a. Provides mechanism for discovery disputes What is the practical sequence of discovery amongst litigants? a. Start with disclosure (in federal court) b. Then party may file various Discovery Requests c. If I serve that request, you can 1) Comply 2) Object or 3) Not Respond d. If you object/ignore, I can then 1) withdraw my request or 2) file a Motion to Compel 5. What is our sequence (class sequence)? a. General Scope of Discovery: Relevance b. General Discretionary Limits on Discovery c. Specialized Limits (Privilege, Work Product and Experts) d. Discovery Methods and Procedures e. Judicial Enforcement and Control D. Limits on Discovery 1. Burden and Proportionality 2. Rule 26(b)(2)- Limitations on Discovery a. b. c. (A) When Permitted. By order, the court may [limit] the number of depositions and interrogatories . (B) Specific Limitations on Electronically Stored Information. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: i. (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; ii. (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

iii. (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 3. Rule 26 (c)- Protective Orders a. (1) In General. A party or any person from whom discovery is sought may move for a protective order . . . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [listed limiting orders]. 4. 26(b)(2)(C): a. b. Limits unreasonably duplicative discovery; not as stringent as it might be read. Must really prove unreasonableness Prior opportunity i. ii. 5. Relatively recent addition, but courts have always done a balancing test of use v. cost Courts will lean in direction of allowing discovery unless faced with persuasive proof 26(C): Protecting Orders Available a. protect a party or person from annoyance, embarrassment, oppression, or undue burden i. b. Lists limiting options too Does much of the same thing that 26(b)(2)(C) does i. Frankly, they were put in at different times. Rule 26(b) is brand new. ii. It gives the court discretion as to IF they allow discovery, or they can regulate it iii. Courts have erred on the side of the liberal interpretationif the discovery is problematic, too bad, we want the info. 6. Most courts tend toward allowing production, unless the producing party can show it would be devastating in some way 7. Application in Gonzalez v. Google. a. Relevance, Monetary Burden, Non-monetary Burden, Duplication i. Information is Cumulative and Duplicative: 1. Search queries are used to get URLs, which then are treated just like the plain URLs 2. Court said Gov't didn't need both, since the info is used identically b. Production of URLS (not queries) under protective order c. Burden or expense of discovery outweighs benefits

c. Why do we have both rules, which are seemingly duplicative?

3. Court decided that gov't could have URLs, not queries because queries could have personally identifying information, where there is no risk of that with plain URLs 8. Electronic Discovery a. Rule 26(b)(2)(B) i. Initial Production: Not required if ESI deemed by producing party to be not reasonably accessible because of undue burden or cost. ii. Upon Motion: Production required unless the producing party shows the ESI is not reasonably accessible. iii. Production of ESI That is Not Reasonably Accessible: Court may order production upon showing of good cause. b. Limits in ESI are very similar to the 26(b)(2)(c) restrictions and balancing test, and are relatively new (2006) i. There is very little case law an decisions that addressed these new rules c. Zubulake v. UBS i. ii. What was the discovery request? 1. Every email that had Zubulake's name on in it What burdens did UBS allege that pointed against having to produce 1. Cost of retrieving backup data was alleged to be $300,000 2. There were many forms in which the relevant data was stored d. The Zubulake case took place before the rules were introduced, and so applies the general balancing tests and is useful for that 9. Privilegeinfo is discoverable if relevant and not privileged a. Why are certain privileges against disclosure recognized in the US system? i. Society values the relationships protected by privileges and prioritizes free communication in the context of these relationships more than the contribution such information could make to improved accuracy of litigation b. Rule 501 dictates privileged material: i. Unless otherwise provided by the constitution, privileged material is established by the judicial interpretation of the common law ii. In civil actions, privilege is determined in accordance with state law c. Attorney-Client Privilege i. Why do we have this? Society values relationship protection

ii. Elements of client-attorney privilege 1. Client/attorney 2. Communication that relates to a fact that he was informed of by his client 3. Without the presence of strangers 4. For the purpose of acquiring an opinion of law or other legal service 5. Not for the commitment of a crime or tort 6. And the privilege was claimed and not waived iii. Basically we extend the evidentiary requirements under FRCP 26(b)(1) to discoverable attorney/client privilege d. FRCP 26(b)(3): Work Product i. a. Ordinarily, a party may not discover 1. documents and tangible things that 2. are prepared in anticipation of litigation 3. by or for another party (not requesting party). Materials may be discovered if: 1. i. They are otherwise discoverable under 26(b)(1) 2. ii. Party shows that it has substantial need for the material and cannot without undue hardship, obtain equivalent info ii. b. If the court orders production of such materials it must protect against disclosure e. Asserting Privilege and Work-Product Protection i. Although the FRCP exclude privileged and work-product protected materials form the scope of discovery, responding parties are obliged to indicate the material that is being withheld based on assertions of privilege or work-product protection in a privilege log. f. The Meaning of In Anticipation of Litigation i. Majority View: if the docs are prepared BECAUSE of litigation ii. Minority View: docs are protected by work-product privilege if they are prepared primarily or exclusively to assist in litigation g. Hickman V. Taylor i. Tug Sank, lawyer interview survivors. ii. Interrogatories were sent to tug owners. One requested any statements by crew of tug iii. Without purported necessity or justification, written statements, private memos and personal recollections of adverse party's counsel in course of his legal duties is outside the arena of discovery. h. Hypos: A/C privilege Hypos i. Albert alleges that B intentionally drover her car into his

ii. B denies liability iii. In a depo, A lawyer asks B, Did you intentionally collide with Albert? iv. May B object on the basis of relevance? v. On the basis of privilege? In a civil action, you do not have the right to NOT take the stand, though u can still plead the 5th. Not a good idea to plead the 5th bc the jury then wonders, why would you have to plead the 5th? c. Hypo 2-Same facts but A alleges intentional infliction of emotional distress B denies causation Bs lawyer plans to argue that A has been emotionally unstable for years B learns A has been in psychotherapy for some time

May Bs lawyer ask about the psychotherapy? Relevant? Certainly Privileged? Yes, but because A bases her defense on her emotional state, she has opened the door to Bs investigation as to the cause of the emotional distress and thus A waives her privilege of doctor/patient privilege.

d. Bus Crash Hypo Bus owned by B Bus Co hits P and P sues B for injuries P seeks the following in discovery a. As set forth in Rule 26(b)(3), documentary materials prepared in anticipation of litigation or for trial by or for another party or that partys representatives are protected from discovery (work product) unless the requesting party can show a substantial need for the materials and is unable to get this information by any other means. b. Is this relevant? Yes, post-investigation report is surely relevant. i. Is this privileged? No ii. Is this work product? Even though non-lawyer, any party representative (here, the VP) creating a document prepared b/c of litigation is not discoverable. But here there is a debate as to whether this report is b/c of litigation; this document arguably was not prepared b/c of litigation. 2. Reports to the state public service commn and ICC pursuant to regulations. a. Is this relevant? Yes. b. Is this privileged? No c. Is this work product? These documents are required by ICC regulations, not b/c of litigation, so this cannot possibly be work product.

1. Written report to Bs board of directors prepared by a VP of B

3. Written statement of driver and passenger taken by Bs attorney immediately after the accident a. Not discoverable as work-product. As in Hicks, the driver and passenger are available for a similar statement to P if P so wishes to conduct it. 4. Written statement of witness taken by Bs attorney 9 months after the accident (Witness will not speak to plaintiffs attorney) a. Not discoverable as work product. While it is likely that P can show a substantial need for info from a witness to the accident, P can get the same information by deposing the witness. 5. Identity of an eye-witness that Bs attorney discovered through spending 10k in investigation Is it relevant? Yes. Is it privileged? No Discoverable. Work-product only covers documents or tangible things.

Responding parties are obliged to indicate the material that is being withheld based on assertions of privilege or work-product. Rule 26(b)(5) Parties cannot withhold FACTS (key distinction of work product) Work Product protects what the lawyer does with those facts, but it does not protect the info in and of itself. Practice Tip: Tell me anybody you are aware of who might have any admissible information

e. Hospital Statement Hypo - Boris was injured in accident with C. - Cs insurance investigator visited B in the hospital. - B cannot recall details about the visit May Bs attorney discover Whether B gave a statement? Yes, this is not a tangible thing. This is essentially the same as an identity request. Again, this is a FACT. A copy of any such statement? Yes, any party or other person may, on request and without the required showing, obtain the persons own previous statements about the action or its subject matter Rule 26(b)(3)(C) What B told the investigator? No, this would require that the lawyer to recall from memory the information and transcribe/create the information. (Hicks) Rule 26(b)courts want to protect against bias, legal conclusion, opinion in discovery. 10. Experts: Experts and Discovery of Information

a. Certain expert testimony is allowed to testify about an expert opinion (despite fact that opinion testimony is generally not allowed) i. b. c. Must show expert is qualified to be giving an opinion, and that the expert testimony/opinion helps the jury understand the case Experts are also retained to help with trial preparation Whether expert is retained as a witness or for prep, their opinions and findings are relevant d. Also, the experts may not be covered by privilege (doctor retained for evaluating plaintiff does not have doctor-patient relationship) i. Anything written down would probably be work product and protected ii. But opinions are not work product, are they discoverable? e. Experts Qualify i. Expert must be in an accepted field ii. Expert must be qualified in that field iii. Judge must rule that the experts testimony will help a jury reach a conclusion f. Rule 26(a)(2) answers this question i. The rule treats testifying experts differently than non-testifying (trial prep) experts 1. The Rule requires the disclosure of the identity of any experts the party plans to call as a witness, along with a report of the expert detailing: a. Expected testimony, including basis for opinions, data or info considered, qualifications, experience as a witness ad compensation 2. Expert witnesses are also subject to depositions ii. Non-witness experts are generally not subject to discovery (discovery is very hard for this type of expert) because of Rule 26(b)(4)(B) 1. This says that trial prep experts can only be discoverable if meets Rule 35(b) (very substantial need without other means of getting info) iii. Prohibition is only applied to experts who learned the relevant facts and developed their opinions for purposes of litigation 1. 2. g. If the expert learned facts and opinions outside of trial prep, his information is discoverable Ex: ER doctor discoverable, treating doctor chosen for trial is not Personal injury caseplaintiff will hire a doctor to interpret the causation of the injuries, and whether this causation stemmed from the car accident. How long will the P suffer from these injuries? You could retain the doctor for consultation or testimony. P lawyer could also hire an economistP cant use his legs, how will this affect his future earning potential (lost income) and how long he has to live.


Doctor/Patient privilege only applies if the P had gone to the doctor to be examined for treatment of an ailment. If P goes for assistance in litigation, this is not privileged. If the physician examines you, and writes down opinions, this document by doctor is probably work product.

--------------------------------------------------------------------------------------------------------Doctor Hypos John is injured in a car accident with Mary. He is examined by Dr. K, who later operates on Js o o o John sues M for his injuries. Johns lawyer interviews Dr. K regarding the treatment Johns lawyer has Dr. Welby examine john and provide his opinion. What info should be in Johns FRCP 26(a)(2) expert witness disclosures? any [ALL] material that serves as a basis for [experts] opinion must be disclosed o Must Dr. W prepare written report? Yes. Rule 26(a)(2) requires the expert to prepare a report detailing her expected testimony, the basis for her opinions, the data or other info considered in forming those opinions, her qualifications, experience as an expert witness, and level of compensation to be received for serving as a witness in the present case. o May Mary depose either doctor? Both. Even though Johns lawyer does not plan to call Dr. K as a witness, Dr. K is a WITNESS to the initial scene of Js injuries. If J asserts doc/patient privilege, Mary should argue that the privilege was waived when Js lawyer consulted with a third-party expert, presumably about privileged material. Assuming Js lawyer does NOT plan on calling Dr. W o o o May Mary depose or otherwise discover anything from Dr. W? No. a consulting expert may not be deposed, and his documents are protected under The prohibition on discovery of non-testifying experts applies only to experts who

back. and the Drs opinion. Assuming Johns lawyer plans to call Dr. W but not Dr. K:

work-product. Rule 26(b)(4)(B) were retained originally for litigation, who learned about the subject facts in anticipation of litigation and formed an opinion after learning those facts. Discovery of Info from Experts: Multiple Doctor Hypo o P is injured in an auto accident and sues D

Ps attorney has doctor after doctor examine P The first 9 say P has no injury Doctor #10 says P has severe long-term injury

o o o o

Ps attorney plans to have only #10 testify Identity, report, opinions, since he will be testifying Considered non-testifying experts, since they are not going to be testifying because The opinions from the 9 doctors are probably not discoverable without rare

What is obtainable from #10? What about the other 9? the plaintiff doesn't like their opinion circumstancesWhy do we do this?? Because if you were a lawyer wanting an expert opinion, and you knew that if you got an opinion from a dr you had to turn it over to the other side, you wouldnt get an expert. o Jury will never learn about the 9 out of ten doctors that said nothing was wrong People would never use an expert if all opinions, good or bad, made it to trial We want people to use experts because it helps the jury We want to encourage parties to investigate, consult, get all the info you could Additionally, if those 9 docs have opinions than controverted that of YOUR expert, the

What is the policy behind not allowing that information? o o o o

before trial. This way, parties are free to consult. other side will likely find these other doctors. When they do, and if you go to trial, you will have a rough day in court. Knowing this, you are then likely to settle the case (for a much lesser value now). Does the lawyer have to disclose the identities of 1-9? o This is a bit of a grey area--- you are NOT required to turn over the identities on initial disclosure, but if the opposing party asks, depending on jurisdiction, you probably will have to disclose identities.

E. Discovery Devices a. b. c. Discovery Conference lawyers meet to discuss matters. If done well, the conference can limit costs, time. [Rule 26 (f)] (few states have this) Scheduling Ordersets forth a time period for discovery, summary judgment to be completed. Sets a trial date. [Rule 16(b)] Rule 26(a): Initial Disclosures: Required Disclosures (Most States courts do NOT have required disclosures) i. The names and address of witnesses that parties plan to use to support their case

1. If not being used, don't have to disclose initially ii. A copy of all documents, ESI, tangible things used to support YOUR claims. (keep in mind: you dont have to turn over stuff that HURTS your case unless they ask for it) 1. If not being used, don't have to disclose initially iii. A computation of damages being claimed iv. For inspection, any insurance agreement that may cover a judgment rendered v. Timing: within 14 days after discovery conference d. Rule 34: Production of Documents, ESI, and Thingsi. A party may serve on any other party a request w/in the scope of Rule 26(b) to produce 1. Documents or Electronic info or Tangible things

ii. Several highly contentious issues for ESI:

1. The exact form in which responding parties must produce ESI 2. Whether METADATA that accompanies ESI must be produced 3. Accessibility Issues: a. actually obtaining the ESI raises its own problems, especially if in backup or hard to access formats or systems iii. Tangible object iv. Discovery on a non-party: Requests to non-parties (R. 45) 1. Requires subpoena, but it is very easily quashed by simple writing of object 2. Then parties have to go to court to resolve e. Form of Production i. Big issue as to whether documents must be in their original form (Word Doc in word format) or whether they can be produced in PDF or other format.

1. This is only important b/c word docs are very easily accessible (word search)
while PDFs are more difficult to access beyond just viewing. ii. Parties are explicitly instructed to discuss any issues about disclosure or discovery of electronically stored info, including the form or forms in which it should be produced. FRCP 26(f)(3)(c), usually during discovery conference 1. If they didnt agree, then requesting parties may specify the form in which they would like the info to be produced. FRCP 34(b). 2. Any party who is dissatisfied with the form of production requested or supplied may petition the court for an order resolving the matter. 3. Rules provide a default for format if there is no agreement and the requesting does not specify its preference a. The form it is ordinarily maintained in or in a reasonably useable form iii. Metadata

1. info describing the history, tracking, or management of an electronic file and indicates that it is usually not apparent to the reader viewing a hard copy or screen image FRCP 26(f) 2. Metadata can be useful in tracking the manipulation of docs, which may be a concern in instances where there is some question as to the authenticity or integrity of documents 3. If the info is relevant, a responding party has an obligation to produce the metadata if it meets the relevance standard of Rule 26(b)(1). iv. Important point: issues on metadata discoverability determinations should not be made by responding parties without informing their adversaries and the court f. Rule 33: Interrogatories i. A party may send interrogatories that the receiving party must answer under oath FRCP 33(a)(1) 1. Interrogatories may not be sent to non-parties ii. Parties are limited to 25 questions unless court gives permission to ask more FRCP 33(a)(1) iii. Party has to respond with written answers 1. Parties cannot respond with "I don't know" unless there has been a reasonable inquiry into the question and the information really cannot be found 2. If it is just as easy from the requesting party to get the information from the other party's business records as it is for that other party, the responding party can give the information to the requesting party to figure it out themselves iv. A party can object to a question on the same grounds as other discovery request 1. Privilege, work product, etc v. The parties do not answer interrogatories, their lawyers do 1. Therefore interrogatories are good for getting discrete objective information 2. But if the info is somewhat subjective or opinion it is not as good because of the lawyer writing it a. Depositions/interviews would be better vi. Interrogatories are inexpensive ways to get answers but are often expensive to answer for the other party g. Rule 30: Depositions i. The format for depositions mirrors the format of witness examinations during a trial, except no judge is present.

1. If party has objection, objecting counsel may simply permit the questioning to go forward, may ask for the question to be rephrased, or may direct the deponent not to respond to the question. 2. Depos are limited to one day of seven hours unless otherwise specified by the court FRCP 30(d)(1). ii. Oral Depositions 1. Conduct an examination of the witness as would be done in court, with both lawyers usually present and recorded by a court reporter, outside of court 2. Can also use various ways to record it in addition to the court reporter 3. All parties have the right to cross examination the witness, but is often not done by party's own lawyer because they want their own information out of the deposition iii. Written deposition 1. Very similar except that the questions are submitted in writing ahead of time by all interested parties 2. Then the questions are read to the witness who answers the question a. Only questions submitted may be asked, and no follow up questions are allowed 3. Therefore these are not used often h. Procedures: Noticing a Deposition [R. 30 (b)(1)]

i. Must provide notice to opposing party that you intend to take depo of X client. ii. If you want to take a depo of a non-party, you again serve a notice on all parties, but
also you must subpoena the non-parties. Rule 45 requires subpoenas to be served in person on the person to be deposed.

iii. The notice must state the time and place of taking the depo, the name and
address of each person to be examined, and the method by which the examination will be recorded 1. Must also specify the documents to be produced. iv. Objections 1. Some objections you must raise at the deposition, or you will have waived them. a. If the matter can be cured, you must object it. 2. Other objections are preserved a. Objections that cannot be cured 3. Instructing a Witness Not To Answer a. This is allowed, but only for one of THREE reasons i. To preserve a privilege ii. To enforce a court ordered limitation on discovery

iii. To present a motion under Rule 30(d)(3)motion to terminate or limit the deposition. The rule provides that if counsel thinks the depo is being taken in bad faith, counsel can terminate or limit the depo. This is seldom used. v. The deponent or a party may request a copy of the deposition vi. Uses Before Trial 1. Perpetuate testimony 2. Gathering information 3. Evaluating witnesses and preparing for cross examination and impeachment 4. Depositions are very useful because they allow gathering information that normally would not be discovered before trial a. But they are hugely expensive vii. Uses at Trial 1. i. Depos can be used as actual evidence at trial to impeach deponent 2. Depos can be used if witness is unavailable Rule 35: Physical or Medical Examination i. Person to be examined must be a party ii. The partys physical/ mental condition must be in controversy iii. The party seeking examination must demonstrate good cause iv. This motion is unlike any other device because Rule 35 exams are allowed ONLY on court order, AND you can only get a physical/mental exam of a party in the case. j. Rule 36: Requests for Admission i. Can only be served on parties ii. Serve on a party a discrete list of statements which they have to admit or deny 1. Can only say do not have enough info if you have reasonably investigated iii. Anything other than a denial (including non-response)is presumed to be an admission 1. Anything admitted cannot be contested in court, makes responding properly very, very important iv. Effect of Admission 1. If admitted, that point is deemed established for the case. Becomes a stipulation. 2. Very strong discovery device. 3. Most of the time, though, the court will grant an amendment for the answering party to change his/ her answer. Even with an amendment, the written record of the first admission will be preserved for impeachment or otherwise. k. See Required Initial Disclosure Hypos and Discovery Hypos in Notes


F. Discovery Disputes and Enforcement Mechanisms a. Nature of Discovery Disputes i. Discovery Devices and Rules are there to theoretically allow the parties to go through the discovery process without involving the court 1. This does happen, especially with smaller cases that dont have tons of documents, witnesses and or experts ii. But discovery disputes do occur very frequently 1. This is partly because lawyers are obligated to represent their clients in an adversarial manner while at the same time cooperating with opposing counsel and providing information for discovery iii. This leads to tensions in the process, and creates opportunity and incentive to abuse discovery 1. 2. 3. One of the most common ways is over-discovery Stonewalling is another way to abuse discovery Providing ALL relevant information in order to inundate

b. Available Motionsmay award cost and fees to victorious party i. Rule 37(a): Motion to Compel 1. Compel other side to provide discovery materials a. When other side ignores discovery requests b. When response to discovery is inadequate c. To overcome an objection to a discovery request ii. Rule 26(c): Motion for Protective Order 1. 2. Limit what is discoverable by other side If discovery is annoying, burdensome, or unduly expensive

iii. Before filing these motions, must make a good faith effort to work out the differences with the discovery requests 1. This actually works quite often 2. Certification of Conference require if cannot work out differences c. Remedies Available i. Order Compelling Discovery Response 1. you must answer these interrogatories, produce these documents 2. rulings on objections ii. Order Regulating Discovery 1. Limiting--- depos will be written testimony, not oral

2. Occasionally the court will ask to look at the documents. iii. Award of Costs and Fees

1. The court MUST award costs AND attorneys fees by the PREVAILING
party incurred by preparing a motion to compel or motion to protective order UNLESS circumstances are unusual Rule 37(a)(5) 2. The court may decide NOT to award if the losing party was substantially justified in filing the motion (unusual circumstances) iv. Sanctions

1. Penalties BEYOND costs and fees.

2. Sanctions have to do with the merits of the case

a. Court can decide issues against a party (light is now considered GREEN)
b. In extreme cases, the court can enter a default judgment

c. Issue order preventing certain information from being used as evidence

3. Courts use these powers VERY SPARINGLY (don't want to mess with merits of case based on bad practices), but these sanctions are available for: a. Failure to disclose b. Failure to attend one's own deposition c. Failure to respond to a discovery request d. Failure to compel with order of the court (mostly just this one, the others usually lead to an order rather than sanctions) 4. Poole v. Textron a. Poole case illustrates the courts uses of discussing costs and fees and imposition of sanctions in a fairly typical manner i. ii. Textron didn't in good faith participate in discovery 1. Responded, but inadequately The court therefore imposed costs and fees, but stopped short of sanctions that went to the merit of the case 1. b. Likely because they did respond, however poorly Court had to decide, before an presentation of evidence, who was at fault and whether sanctions as to the merits were appropriate c. In federal court, the discovery process works a little better, because the judge is assigned to the case from first filings through the trial i. ii. Don't want to irritate the trial judge with bad discovery antics Discovery disputes in state court are heard by whatever judge is available so bad practices won't matter as much during the trial

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A. Termination Without Reaching the Merits (Defaults and Dismissal) a. Loss for Inaction i. Default Judgment [R. 55] 1. Entry of default a. Most common: serve a summons and complaint, D doesnt answer or respond. They are then in default. You then ask the court to enter a judgment for default. 2. Motion for judgment a. Plaintiff must enter this motion to officially notify the court of the Ds lack of response 3. Procedures a. When can a clerk enter a judgment? When can a clerk NOT, and the court must enter the judgment? Read rule 55 b. When can the D be given for time to respond? Read rule 55 ii. FRCP 55: Default, Default Judgment 1. Entering a Default a. When a party against whom judgment for affirmative relief is sought has failed to plead or otherwise defend the case, the clerk must enter the party's default 2. Entering a Default Judgment a. By the Clerk: if the plaintiff's claim is for a sum certain or one that can be computed, the clerk, on the plaintiff's request, must enter judgment for that amount b. By the Court: in all other cases, the party must apply for the default judgment. A default judgment may be entered against a minor or incompetent only if represented by a general guardian who has appeared. If the party against whom a default judgment is sought has appeared, that party must be served with written notice of the application at least 3 days before the hearing b. Involuntary Dismissal (R. 41(b)) (if the plaintiff does nothing after filing, does not prosecute case) i. Can also be used for failure to comply with court order matters c. Voluntary Dimissal (R. 41(a)) i. Can do once, by notice prior to defendant's answer 1. One time only is without prejudice, any times subsequent will be dismissed with prejudice (barring further claims) ii. Also, improper service, improper venue, improper jurisdiction, basically procedural

ii. By agreement of parties (stipulation) or court order 1. iii. 1. 2. Tends to be with prejudice, unless court order says otherwise Don't want to fight jurisdictional claims More commonly, in federal court, to avoid getting a case assigned to a certain judge a. B. II. Settlement and ADR a. Our system requires a party to either : i. Participate in judicial process ii. Accept defeat (R. 55, R. 41) iii. Devise private solution voluntarily (Settlement/ADR) b. Advantages of Voluntary Solutions (Voluntary solutions are generally better than anything a court can do or impose) i. Gives parties control (which they give up in adjudication, to lawyers, judge, jury) ii. iii. Reduces or eliminates risk Flexible Outcomes and Solutions (Most judicial judgments are win/lose monetary compensations) 1. 1. 2. No stuck with just money changes hands There are very few goals that are outright impossible to achieve in voluntary solutions, but does depends on what the parties want and can agree to Goals that ARE impossible: a. b. C. Settlement Processes a. Negotiation b. Mediation (negotiation overseen by a neutral third party) c. Early Neutral Evaluation Obtain precedent that is binding on third parties Demonstrate to third parties how "mean" or tough you are (never settle policy) iv. Solutions can be tailored to parties' needs Then refile and hope for a better judicial assignment Why would a party withdraw so quickly?

i. Local lawyer, expert, evaluates the parties case and, based on his experience, gives an opinion on the likely outcome of the case if it goes to trial d. Summary Jury Trial i. Jury trial which is NON-BINDING, done in summary fashion, very short ii. The sides summarize the evidence, call ONE key witness, present a BRIEF case to the trial. The jury then makes a decision. This can lead the parties to negotiate a resolution. iii. This is seen more in complex litigation. e. Non-Binding Arbitration i. Similar to SJT, semi-bindingthe arbitration award will hold unless the party affirmatively requests to advance to trial f. Mini-Trial i. Usually limited to fairly large trials, corporate entities ii. Lawyers give a summary of evidence, maybe a key witness, similar to summary jury trials 1. But the evidence is given to the CEOs of the involved companies D. Settlement Value= BATNA (Best Alternative to a Negotiated Agreement) a. My best alternative is going to trialso we gauge what were willing to agree to: is what we agree to better than what I can get in trial? b. Actually measuring BATNA is tricky, not exact, requires consideration of i. Assessment of likely outcome in judicial system 1. 1. This is what lawyers do Costs of getting the judgment, legal fees, may not get a check, but property (not liquid) iii. Time value of money 1. 1. 1. Value of money reduced over time How likely is an adverse or not optimal judgment Clients needs matter, some clients handle trial/suits better than others iv. Risk of losing or obtaining less than optimal judgment v. Individual needs & values

ii. Cost of obtaining & collecting (or opposing) judgment

2. E. Binding Arbitration

Time suck into litigation may reduce productive value of clients time

a. Nature and Definition i. An agreement by the parties to submit their dispute to a private arbitrator rather than a public decision maker (judge, jury) for a BINDING resolution ii. Similar to settlement, the parties abide by a resolution outside of court. iii. Dont agree on the outcome, but a process to achieve the outcome 1. Contractual agreement to the process b. Characteristics i. Always consensual at some level 1. 2. 1. May be in the form a pre-dispute arbitration agreement, clause in a contract (buying a car) Sometimes have a post dispute agreement, parties don't want to go to trial Parties might set out details, but unusual; Usual practice is that the contract adopts a process and procedures used by one of the existing arbitration groups (AAA, Jams, etc) iii. Parties select the decision maker (or method of selection) 1. 1. 2. 3. Either pick a person or process by which a person is selected Provides for VERY limited discovery, but in the end it is up to the parties Evidentiary hearings look like a bench trial a. a. 1. But Rules of evidence usually don't apply, use relaxed rules Can go to court to enforce this Subpoena power is enforced (by state and federal statutes) iv. Usually resembles an informal trial ii. Parties establish the procedures (because they agree to the process)

v. Arbitration award is generally binding, and there is very little room for appeal Courts can set aside an award for very limited reasons a. Egregious flaws in process (clear bias, bribes)


Parties have agreed on decision maker and courts hold parties to that

c. Enforcements of Agreements to Arbitrate i. Nature of Issue

1. What if one party doesnt want to go forth with the arbitration (especially in
arbitration clauses within contracts). How is this resolved? 2. Example (forgetting consumer/employee contracts): we have begun arbitration and one party is not pleased with a particular issues handling. They perceive that trial would be more advantageous to them on this issue, and wish to cancel the arbitration. ii. Judicial Treatment and the Federal Arbitration Act (FAA) 1. So what do the courts do in this situation? a. Old view: if any complications in arbitration between either party, the courts would hear the matter b. The FAA an arbitration agreement shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract i. (so the arbitration agreement is binding unless it is unconscionable, based on fraud, etc) c. FAA applies to any arbitration agreement that is (1) in writing (2) evidencing a transaction involving interstate commerce iii. Current Debate: Consumer and Employment Contracts 1. Are they enforceable? Law says yes. The issue remains controversial.

Judicial Adjudication
1. Dismissal for Failure to State a Claim (Rule 12(6)(b)) a. If the facts are as the plaintiff states, there is no claim stated for which relief can be granted i. Purpose is to dismiss claims that are legally insufficient early in the process b. Assuming everything in complaint is true, would the law allow for a remedy? i. If not the court will allow the complaint to be amended to attempt to state a claim, but will dismiss on the merit if the plaintiff cannot amend with new facts that state a claim c. Examines the sufficiency of the allegations, allows for judgment on the merits if insufficient i. Does not look at evidence, ONLY complaint 2. Judgment on the Pleadings (Rule 12(c))

a. Very similar to 12(b)(6), but used after the defendant has answered, court looks at the complaint AND the answer b. Often used when defendant uses an affirmative defense (like statute of limitations) which require the court to have the answer of the defendant i. Does not look at evidence, ONLY at pleadings 3. Summary Judgment a. Granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show: i. That there is no genuine issue as to any material fact; and ii. That the moving party is entitled to judgment as a matter of law b. Timing i. Can file a MSJ any time, even before an answer ii. Typically, they are filed after all or most of discovery has been completed iii. Most of the time, you attach some sort of evidence to your MSJ c. What is the movants burden of proof? Non-movants? i. Court ties who has the burden of proof for summary judgment, with who has the burden of proof at trial 1. If defendant does not have to provide evidence of causation, unless plaintiff does at trial, why should if be different for summary judgment ii. If the movant has the burden of proof, then they DO have to provide evidence in support of SJ 1. But if the movant does not have the burden of proof, then it can EITHER a. b. Provide evidence in support of SJ or Provide support by showing plaintiffs lack of evidence in pleadings and documents i. Plaintiff has burden of proof for establishing elements ii. Defendant has burden for any affirmative defenses d. Summary judgment is NOT proper when a rational juror could decide EITHER way based upon the evidence provided i. It is not enough to have evidence on both sides, it must be evidence such that a rational juror could go either way 4. Promissory Note Hypo: a. What affidavits support Ps MSJ? i. Affidavit of Ps attorney stating, P told me she saw D sign the note?

1. Inadmissible, no personal knowledge

2. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated ii. Affidavit of P stating I know the D signed the note? 1. This more an opinion or the lawyers conclusion. Inadmissible. iii. If P tells attorney she saw D sign the note, how should the attorney support the MSJ

1. Attach the note, give background on P/D relationship,

5. Judicial Control of the Jury

a. 7th Amendment- Right to a Jury Trial

b. IN SUITS AT COMMON LAW, where the value in controversy shall exceed twenty dollars, THE RIGHT TO TRIAL BY JURY SHALL BE PRESERVED i. Language here is importantlimitations include common law and preserved ii. The courts apply a historical test as to whether a party can be given a jury trial: you are guaranteed a jury trial if you wouldve had a jury trial in 1791 (Would common law courts or equity courts have jurisdiction over your case?) 1. If you could show that money damages would not make me whole, you could seek an injunction in an equity court. 2. The basic divide between law and equity courts: damages= law court (jury), injunction= equity (no jury). Remedy is the difference. 3. What if the tort is ongoing? Nuisance, trespass, etc. The tort has harmed me (currently seeking damages) and I want it stopped (desiring injunction).

iii. Most courts err on the side of giving you a jury trial if so requestedif you bring actions in both equity and damages, you will get a jury trial. There is much precedent dictating which causes of action will be granted 7th amendment rights. The court will decide on the injunction AFTER the jury has rendered a verdict. c. Where does your right to a jury trial come from in State court? i. Statutory laws granting similar provisions as in 7th amendment (preserving language) d. Procedural Requirements i. Rules 38-39 require that a plaintiff file a demand for a jury in order to have a jury trial, it is NOT automatic 1. 2. 6. Jury Selection a. 1st step- courts gather a jury pool. i. Federal statutes provide that the goal of our system is that the pool is randomly selected to provide a cross-section of the community. b. Jury pool is pared down by the clerk based on federal requirements, (remainder is the petit jury) c. Voir Dire: Then a random subset of those people is chosen to go into the court room (usually the number of people on a jury) and the judge/lawyers (depends on district/court) will conduct voir dire to see if these people are qualified to sit as a juror IN THAT CASE d. Challenges for Cause i. Lets the court know your foundation for eliminating jurors (unlimited number). Court has discretion. 1. E.G. If a juror has some bias or other situation that makes him unfit for being a juror ii. Peremptory (limited number) e. Edmonson v. Leesville, 1991 i. ii. Forbids the use of peremptory challenges on the basis of race 1. Gender was prohibited in Batson v. Kentucky Applies to both state and civil actions, as such discrimination is forbidden by Constitution for state action (no discrimination by state actor, and even civil litigants are part of a state action because state is so intimately involved with the process) 1. How do you know that the other party didn't dismiss for race or gender? Must file within 14 days of the last pleadings dealing with triable issues If a party does not file within the time frame, they do not get a jury trial

a. You don't, but if there appears to be a pattern, you can bring this to
the judge, and if the judge agrees, the other party has to articulate a non-race or gender reasons for striking that juror


There is a question how important this is, as most lawyers can come up with a fairly valid reason for any dismissal other than race or gender

7. FRCP 50(a)Judgment as a Matter of Law in a Jury Trial (formerly a direct verdict) a. FRCP 50(a): JML b. In general, if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may i. Resolve the issue against the party, and ii. Grant a motion for JML against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue c. Plaintff only has to prove by preponderance of the evidence (ever so slightly more likely) that the defendant was negligent (or whatever). i. But it has to be tilted, it cannot be equal. d. JML may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and fact that entitle the movant to judgment i. When can JML first be filed? 1. At close of plaintiff's case, defendant can file 2. e. At close of all evidence, either party can file How is a JML decided?no rational juror looking at this evidence could conclude in the other sides favor i. Depends on the strength of Ps prima facie case, ii. The probative value of the proof that the employers explanation is false, and iii. Any other evidence that supports the employers case and that properly may be considered f. Rule for JML: i. The court must draw all reasonable inferences in favor of the NON-MOVING PARTY, and it may NOT make credibility determinations on weight the evidence. ii. Credibility determinations are for the jury, not for the judge. Thus the judge can only look to evidence that supports P that is uncontradicted and unimpeached. g. Reese v. Sanderson Plumbing i. What is the prima facie case the plaintiff must prove for unlawful firing? 1. Member of protected class (here, older than statutory age), Qualified to do job, Discharge, Replaced by younger person ii. What does the defendant then have to prove to avoid liability? (burden of production (not persuasion) switches) 1. There was a legitimate, non-discriminatory reason for discharge


Plaintiff, to meet burden of persuasion, now must produce evidence (burden of production switches back): 1. 2. Legitimate reasons for discharge are pre-textual Real reason for discharge was age (can be inferred)

h. Burdens of Proof i. Burdens of Persuasion (what comes to mind first) 1. Preponderance of the Evidence (most civil actions): more likely than not 2. Clear and Convincing Evidence (heightened civil standard) 3. Beyond a Reasonable Doubt (criminal actions) ii. Burden of Production 1. Exists where a party will lose without providing some evidence in its favor a. Burden of production is on the party that would lose if the case stops at a certain point and doesn't go to jury i. 2. 3. Almost always with the plaintiff/prosecutor To satisfy a party's burden of production on an issue, that party must produce some evidence from which a jury MIGHT find in its favor Affirmative defenses almost always put both the burden of persuasion and burden of production on the defendant

No Proof for P


Irrefu table Proof for P

JML for D

P will survive Ds Motionfor JML, bu t will lose the verdict

P will su rvive Ds Motionfor J ML and win verdict

JML for P

Bu rdenof Persu ion as


Taxicab Hype: P v. White Taxi Cab i. Facts: 1. Provo has two cab companies whose cabs are distinguishable only by color of light on top (yellow & white). 2. 3. 4. 1. P injured in hit & run. W saw incident and knows the car was a cab but cannot identify the company. White owns 75% of the cabs in Provo. Strickland: No rational juror could decide on evidence that White cab was the hit and run cab ii. JML for White Cab or does claim go to the jury?

a. b. 2. 3. j.

Even though they have 75% market share, the evidence of the witness is inconclusive as to what cab was THE ONE in the accident No evidence can make a juror say it was a WHITE cab, more likely than not

The resistance to JML may stem from the limited evidence in this case, makes you think that someone didn't do a proper job Pure probability by itself is not enough for us to let jury make a decision (at least in most cases)

Uranium Plant Hypo i. Facts in Evidence: 1. Decedent died of rare cancer. 2. Occurrence of this cancer has increased in the town since construction of uranium plant: a. b. 3. 3 deaths per 10,000 people before plant was built 9 deaths per 10,000 people after plant was built

Expert testimony links uranium plant discharges to increased incidence of this type of cancer.

ii. Does case go to the jury or JML for D? 1. Is there a way for a rational juror to find for the defendant plant? 2. iii. With a 300% increase in cancer rates and testimony linking the discharges to that cancer, probably not. If not then deny JML 1. 2. Is there any way to find for D and NO RATIONAL WAY AT ALL to find for P? If there is no way to find for P, then JML a. b. c. d. This depends on if you trust these statistics but ALSO Expert testimony links plant and this cancer Huge increase, purposeful actions will kill people (statistically) i. Death inherent by-product of plant No other, non-natural cause (unlike White or Yellow cab) with (unlike cab company or cab plaintiff) k. What is purpose of JML? i. - Some efficiency: ii. - Avoid additional trial time. iii. - Avoid jury charge & deliberation. iv. - But those savings often are minimal in comparison to the overall time and money spent. v. - Avoid law-making by juries

e. Plaintiff has probably put on every bit of evidence science can come up

vi. - Only let jury decide the case if there is sufficient evidence for rational person applying the law to find for either Party. 8. Other devices of Judicial Control of Juries a. Rules of Evidence: i. If we really trusted juries, we would give them all evidence and let them sort through it, but don't trust them to sort it well or accurately ii. Bench trials don't apply the Rules of Evidence nearly as stringently as they are applied in jury trials b. Jury Instructions i. Tell the jury what the law is and what they need to decide, and how to apply that law to the facts ii. Forms of Verdicts 1. General verdicts a. Traditional verdict, most common 2. Special Verdicts a. Give the jury question that lead them through the facts to be found b. Using those questions to determine fact, the court enters the judgment i. Used rarely 3. General Verdict Accompanied by Interrogatories a. Jury gives verdict b. Also answer directed questions that lead them through the facts c. Can lead to situation where the verdict says one thing, and the interrogatories indicate another i. New trial, re-deliberation, necessary 9. Trial Issues a. Trial Sequence i. Opening Statements ii. Ps Case in Chief iii. Ds Motion for JML iv. Ds case in chief v. Ps and Ds motion for JML vi. Rebuttal Evidence vii. Closing Arguments viii. Jury Instructions/ Charge ix. Deliberation x. Verdict b. Post- Trial Motions

i. Renewed JML (Judgment Notwithstanding the Verdict, JNOV) 1. This is where a jury returns a verdict and a losing party asks court for renewed JML to give them the verdict instead of what the jury did 2. Standard for Renewed JML a. a. 4. Use a. Trial judges are wary of granting JML before giving a case to the jury, because appeal is almost certain. b. If JML is reversed, they have to run trial all over again. Same as JML, no rational jury could find for non-moving party Cannot file a new JML motion after verdict, can only RENEW a motion that was made BEFORE the case went to the jury 3. Prerequisite

c. Judge will often deny initial JML, knowing:

i. Jury will probably do right thing. ii. If not, Renewed JML can be granted.

d. If reversed on appeal, the court can just reinstate the jury verdict.
ii. Motion for a New Trial 1. Same timing as JNOV/renewed JML (loser of verdict makes motion), and if granted, likewise sets aside the jury verdict, but grants a new trial instead of a new verdict 2. Grounds: a. Improper trial i. Errors in the way the trial was run/handled (Errors in evidentiary ruling) ii. iii. iv. b. Erroneous jury instruction Attorney misconduct (said something during closing arguments) Jury misconduct (hard to prove, but maybe they went outside facts of case, had outside help/info) Improper Verdict (more controversial) i. ii. Grounds that the verdict is against the great weight of the evidence Even though everything went proper, just think the verdict was wrong

1. iii. Additur and Remittitur 1.

Dadurian is an example of this

Additur is unconstitutional in fed courts, unavailable in Alabama, but available in other states. a. Asks losing party to accept higher damages if award seems too low


Remittitur: when court gives winning plaintiff an option a. b. accept a lower judgment, or a new trial (happens when court feels award is too high) Remittur is available in all fed and state courts

iv. Motions for relief from a judgment (FRCP 60) 1. Very seldom see these asserted by a party, and even rarer are they granted by the court 2. Rare and difficult to prove c. Appellate Scope of Review: i. De novo: pure matters are law (Least deferential) ii. Clear error (Only obvious errors of judge can be overturned, Deferential) iii. Abuse of discretion (Only if judge went way outside reasonable decision, Most deferential) 1. These last two let trial court decision stand even if appeals court disagrees with decision Preclusion Doctrine 1. Once a final judgment has been obtained, the question of the scope of its preclusive effect arises a. The preclusive effect of a judgment refers to the extent to which a judgment prevents parties to the action that resulted in the judgment, or other persons, from relitigating the claims or issues raised in the prior action 2. Claim Preclusion a. Plaintiffs may be precluded from asserting claims because of a previous assertion of the same claim (or one that is sufficiently related). b. Elements c. Final Judgment i. The claim is resolved, nothing left to do but execute judgment 1. If on appeal, many states view this as final, but some do not


Judgment on the Merits i. Decision based on facts and law, but case law includes other as well 1. 2. 3. 4. Verdict following jury trial (OK) Directed Verdict, JML (OK) Summary Judgment (OK) Dismissal for failure to state a claim (OK) a. 5. 6. Decision of law, that the facts plaintiff has aren't going to be addressed by the law Dismissal for Lack of PJ (not on merits, no preclusion) Dismissal for Defiance of Discovery Orders (OK) a. ii. Applying preclusion enforces sanctions of court, party had their chance and failed to proceeding accordingly Basically on the merits includes decisions that, as a policy matter, we want to enforce and not allow to be avoided

e. Same Claim i. Majority: Transactional Test (Nestor uses) 1. Two claims are deemed to be the same claim if they arise from the same nucleus of operative fact, same transactional occurrence a. ii. Fairly broad bar (can sue for assault, get judgment, then sue for battery) Minority: Identity for Evidence Test 1. 2. f. Two claims are the same if the evidence required to prove first claim is exactly enough to prove second claim If any additional evidence is required, then claim preclusion not applicable a. (i.e. property damage vs. personal injury)

Same Parties (or Privity) i. Conclusive effect of a prior judgment may on be invoked against the exact same parties, or a privity to a party ii. Privity is extraordinarily hard to establish, only three exceptions to bind nonparty (which are not often) 1. 2. Nonparty who succeeded a property interest Nonparty who controlled the previous suit


Nonparty whose interests were adequately represented in prior suit

g. Application under Benson i. First case: Shelby sued Wanda for anti-trust violations 1. Wanda won judgment ii. Second case: B&F sued Wanda for the exact same claims that Shelby did iii. Is action #2 barred? 1. 2. 3. Final judgment? Yes, judgment rendered On the merits? Yes, jury verdict Same claim? a. Arises from the very same allegedly wrongful conduct that the Shelby case relied on (transactional test) b. Evidence test, if it applied? (evidence of wrongful conduct the same, but B&F will have to prove it affected B&F, not Shelby) evidence test wouldn't preclude because of this new evidence 4. Same parties NO a. b. Not identical parties, was there privity or a legal relationship? Wanda allegations for "same party" i. No evidence that B&F had authority to call the shots in the Shelby case even though Ford testified for Shelby at trial, both parties had same lawyers ii. Interests not represented adequately by first case 1. Need more evidence than parallel interests, must show Shelby had an obligation to look out for B&F, which was not the case h. Semtek v. Lockheed Martin i. The point of Semtek is that what ultimately determines the preclusive effect of a dismissal is not the label placed on the dismissal by FRCP 41(b), but rather the underlying basis for the dismissal ii. Semtek addressed the preclusive effect of dismissals in federal diversity cases 1. The effect of dismissals in non-diversity actions is that federal law applies iii. The federal standard applied is a federal common law standard that is virtually identical to the version of claim preclusion present among the states 1. The Supreme Court has stated that the dismissal of failure to state a claim under 12(b)(6) is a judgment on the merits 3. Issue Preclusion

a. Plaintiffs may be precluded from relitigating issues they previously litigated to decision. b. Issue preclusion bars relitigation of a particular issue that has been previously litigated and decided in other action c. Issue Preclusion Rule: Issue may not relitigated if: i. Issue Actually Litigated and Decided 1. Issue must be the exact same issue, precisely ii. Final Judgment (does not have to be on the merits) iii. Determination ESSENTIAL to the Judgment 1. Means that if the issue was determined differently the case outcome would have changed iv. The prior action involved the same parties (mutuality of estoppel). 1. Universal Rule- Party sought to be bound by prior action must have been a party to the prior action. A party can never be bound by a prior action if it was not a party. 2. Traditional Rule- No issue preclusion unless both parties are in each action d. Use of Issue Preclusion i. Defensive Non-Mutual Issue Preclusion Always Allowed in Federal Court (Blonder-Tongue) 1. Where defendant raises issue preclusion against a plaintiff that has previously litigated the issue 2. Reasons for Allowing Defensive Non-Mutual Issue Preclusion a. Efficiency, shouldn't let plaintiffs who have lost go around suing people on matters they have already lost, b. Promotes use of joinder by plaintiff in their initial action c. Makes courts look bad if plaintiffs can go around suing people, winning some and losing others, repeatedly d. Eliminates "gambling" by plaintiff, suing everyone one an winning some, losing others ii. Offensive Non-Mutual Issue Preclusion allowed in Federal Court only where plaintiff did not have an opportunity to join and use of issue preclusion would not be unfair to defendant (up to trial court to decide) (Parklane) 1. Where a plaintiff seeks to prevent a defendant from litigating the issue, so the plaintiff can piggy back on a prior case and get an easy judgment 2. Concerns Arising from Offensive Non-Mutual Issue Preclusion: a. Efficiency: Incentives to join or not join all claims in the first action. i. encourages second plaintiff to wait and see

b. Potential Unfairness to the Defendant i. Limited incentives to litigate 1st action vigorously ii. Multiple inconsistent prior judgments iii. Prior action lacked procedural opportunities available in the 2nd action ----------------------------------------------------------------------------------------------------------Hypo: Issue Preclusion Action #1: US v. Agent (crim action) o o o o o Claim: Agent embezzled IRS funds Judgment: Not Guilty Claim: Agent embezzled IRS funds No. The different burdens of proof between crim and civil court creates a different issue Guilty beyond a reasonable doubt v. guilty by a preponderance of the evidence The issue must be IDENTICAL. In a crim case, the burden of proof is beyond a reasonable doubt (not guilty doesnt necessarily mean the defendant did not do the crime, but that that there was a reasonable doubt). In civil case, the burden of proof is the preponderance of the evidence. Therefore, issue preclusion is improper. o Suppose now D was found guilty in the crim action. What result? NOW action #2 qualifies for issue preclusion, because the crim burden of proof is higher. Basically, the second actions proof is included in the proof of the first action. Therefore, the issue is IDENTICAL. Hypo: o Action #1: Bertha and Jessie v. RR o Berthas claim: Negligence and Personal Injury Jessies Claim: Neglience and Loss of Consortium RRs Defense: Contributory Negligence Judgment: Liable to Bertha; Not liable to Jesse

Action #2: US v. Agent (civil action) Is action 2 estopped by issue preclusion?

Action #2: Jessie v. RR

Claim: Negligence and PI Questions: Is the claim the same? The transactional based test, looking at the common nucleus of operative fact, would consider these two actions identical. The identity test would NOT consider them identical because J did not seek personal injury recover in the first action. The court in this case reached a different conclusion: The RR is prob correct that the jury found J contributorily negligent. But we dont know that for sureall we know is that B was awarded money, and J wasnt. (How else could the jury not have awarded J any money, besides contrib.? by simply not proving the prima facie case of negligence along with loss of consortium, the jury couldve concluded that money damages for J was improper). The point here is, ultimately, the issue must be EXACTLY. But there is ONE way J could use issue preclusionnegligence. J can estop D from relitigating duty and breach, but still must prove causation, damages, and that J was not contributorily negligence. Some courts would deny issue preclusion because the determination of the issue at hand because that issue was NOT essential to the prior judgment. The prior judgment wouldve been the exact same because there were inependent grounds to reach the same result. Issue preclusion is improper here because we have no idea that the issue of contrib. was even decided.

Is Jessies action #2 barred by issue or claim preclusion?

Hypo: Pers. Jrd. Hypo o Action #1: N.D. Ala o o Negligence No pers jrd No pers jrd Yes. Meets all the reqs. it WAS litigated as far as pers jrd EVER is.

Action #2: Circ Jeff County Does issue preclusion apply to action #2 on pers jrd?

Cromwell v. County of Sac Action #1: Smith v. County o o o Claim: Payment of bond coupon interest Defense: Bonds were void for fraud in the inducement Judgment: Bonds and coupons were void for fraud (unless P demonstrates he is a bonda fide purchaser)

Action #2: Cromwell v. County o o Claim: Payment of bonds and coupon interest Defense: Bonds were void for fraud in the inducement

Issue/Claim Preclusion? o Did he give value for the bondswas an issue that was never litigated. The court held that Cromwell is not estopped from showing that he purchased the bonds for value. The issue of fraudulent inducement from the start WAS precluded. Ill RR Variation #2 o Action #1: Bertha v. RR o o Claim: Negligence Judgment: RR was NOT negligent Claim: Negligence

Action #2: Jessie v. RR Universal Rule: RR cannot use Issue Preclusion against Jessie, because Jessie was not a party to the prior action. Can never use issue preclusion to bar someone from litigating an issue, unless they have already done so

Ill RR Variation #2 o Action #1: Bertha v. RR o o Claim: Negligence Judgment: RR WAS negligent Claim: Negligence

Action #2: Jessie v. RR Universal Rule is satisfied because Jessie is not being barred, the RR is, and they litigated the issue in the prior action with Bertha Traditional Mutuality Requirement: Even though RR was a party to the prior action, Jesse cannot use issue preclusion to prevent RRs relitigation of the issue because the parties are not the same in the two actions.

Parklane Hypo: 1. Action #1: SEC v. Parklane a. Claim: Securities fraud

b. Found: proxy statement was misleading c. Remedy: Declaratory judgment (& injunction?) 2. Action #2: Shores v. Parklane a. Claim: Securities fraud b. Remedy: Damages (and others). Traditional Rule: action number 2 is different, no issue preclusion

Erie Doctrine: State Law in Federal Courts

1. Background and Intro a. Remember: Fed Courts SMJ b. Fed SMJ requires Fed Question or Diversity i. Federal question by definition involves federal law, so that applies ii. But in diversity, parties are in federal court solely based on diversity, what law does the federal court apply? 1. Does it apply state law; if so, which state? 2. Does it create its own federal common law? 2. Constitutional Law--The Constitutional doesnt tell individuals what they cannot do, it allocates power to the states to tell individuals what they cannot do. The Constitution gives federal government the enumerated powers, grants all other power to the states, and allocates powers between the three branches of government. 3. Choice of law-- Any court in any case has to decide whose law the court must use to decide. Clearly, if Alabama citizens, and the COA arose in AL, the AL laws will apply a. But when the citzens are from diff state, the COA arose in a diff state, the question becomes complicated. 4. Erie Doctrine: What substantive law should a federal court apply in a case founded solely on diversity? a. The Rule of Decision Act (RDA) tried to answer this question i. the laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the US, in cases where they apply ii. RDA looks deceptively simple, if federal statute or Constitution doesn't apply, use state law (but what that actually meant was ambiguous, and was litigated for hundreds of years 5. Erie and Swift a. Erie in the District Court i. ii. iii. The Conflict Swift and Application of the Rules of Decisions Act Basis of Swift interpretation 1. Lay meaning of laws a. Given these holdings, these courts are interpreting the word laws included in the Rules of Decision Act to NOT include the decisional law articulated by the courts of the state, only statutes counted. Therefore, the federal courts can ignore judicial decisions in applying law. The court of appeals applied the same holding.


Philosophical concept of Law a. Before Erie, the courts adhered to the philosophical legal doctrine of natural law. The court sought, through reason and logic, to figure out exactly what the CORRECT law was. Penn is simply trying to get it right. A. Erie: when the RDA says law, that includes state statutory law and judicial decisions of the high court. State have the right to make own law, there is no ONE law b. Promote Uniformity


The Erie Supreme Court Holding i. Facts: Simple tort action, Tompkins hurt walking along railroad by RR car door that was open as it passed 1. But laws that might be applied were different a. b. ii. PA: had to prove wanton conduct if walking along RR Fed: simple negligence is enough to find liability

Federal courts sitting in diversity must apply state substantive law, whether that law is in the form of a state statute or a state judicial decision 1. What is substantive and what is procedural when it gets murky? a. b. Erie needed to be developed for these gray areas of law In York, Byrd and Hannah, court kept tweaking what it thought was the right approach


Basis of Erie Holding i. New Scholarship: law review article that based its argument on rejected drafts legislative intent. ii. Experience with Swift 1. 2. Uniformity did not develop Confusing distinction between General and Local law a. b. iii. Out of state plaintiff got to choose what standard would be applied by choosing federal or state court (b/c of diversity) In state plaintiff could not forum shop (no diversity) Legal Realism (major reason) 1. There is no ONE law to find, just the law the state chooses 2. A much more modern view of the Common Law: a. Not attempting to deduce the grand divine common law, merely enacting laws that can be disagreed with. A states law is merely a policy choice, so why should the policy change solely because of the parties citizenship?

3. Unfairness of Forum Shopping


Unconstitutionality of Swift: Which part of the Constitution did Swift violate? The opinion urges that it violates the constitution but doesnt specify where. 1. Equal Protection? AL ends up with one result while CO ends up with a different result in the same court. Probably not the answer. 2. Due Process? No 3. 10th Amendment? Maybe the problem with the old Swift rule was that the fed govt had entered into areas that it was not allowed to govern. Swift was articulating laws where it had no constitutional authority to do so. BUT if were saying that the fed courts CANT interpret its own federal common law, the constitution then must require that the federal courts adhere to the state. a. This begs the question: if that is the case, then why was the RDA ever passed? The issue of Swifts constitutionality is unclearly articulated in the Erie decision.

6. III. The Scope of Erie a. Justice Reed in Erie- it is very clear that the Erie doctrine requires federal courts to comport with state SUBSTANTIVE law. On matters of procedure, the federal courts can apply its own rules and laws. b. How do courts distinguish substantive law & procedural law?

i. Substantive deals with identifying obligations, regulating everyday conduct ii. Procedural deals with process of litigation, regulating court conduct
1. 2. Mode and form of obtaining a remedy for injury Traffic rules for court


Even under the Decisions Act, that does not mean that fed courts have to apply state procedure

York v. Guaranty Trust Co. i. Facts: Identify the Conflict of Laws 1. York sued in federal court, but statutes of limitation for state claim had expired, federal limitations, based on laches and equitable relief, didn't bar claim. 2. Which law applied?

ii. The York Outcome Determinative Test

1. Substantive law significantly affects the outcome of the case.

a. Procedural is merely the manner and means of which recovery is

based. 2. Does the choice between the disputing laws affect the outcome?

a. The problem is, of course, ANY conflicting law affects the outcome, in
some fashion, at some time. Even minor procedural laws can completely bar recovery if not specifically adhered to. York test appears to be too blunt. 3. Court revisits the issue in the Byrd case. Remember: Erie issues arise when in federal court on diversity and the fed and state courts have conflicting laws. iii. Paper Size Hypo 1. State law requires documents be filed on legal size paper (8 x 14). 2. 3. 4. Federal court requires letter size paper (8 x 11). When a diversity action is filed in federal court, which rule applies? May the federal clerk refuse to accept a complaint printed on letter size paper? a. This is outcome determinative, because you lose unless you change to letter sized paper b. But it doesn't affect everyday conduct d. Byrd v. Blue Ridge i. The Conflict: Workers comp claim against company that hired contractors to do work, one of whom was injured doing work the companys employees do as well ii. The employee-employer relationship in this case is stated under the Workmens Comp Act, which was decided as a matter of law by the judge in SC, as per SC statute. 1. There is a strong federal interest in using juries, consistent with the 7th Amendment. Because of the procedural nature of the judge/jury dispute, the fed courts are free to apply either law. iii. State Ct: Judge decides if Blue Ridge deemed Byrds employer iv. Fed: Jury decides if Blue Ridge deemed Byrds employer 1. Apply York: This does not clearly substantially affect the outcome. Under the York test, this state law would probably be considered procedural v. The 2-part Byrd Test 1. Is the state rule bound up with the state-created rights and obligations that form the basis of the action? (e.g., does the rule seek to regulate daily conduct rather than litigation)? a. If so, state rule applies. 2. If not, balance the following: a. The York-type interest in avoiding different outcomes for the same action brought in state and federal court


The federal interest in an independent federal system and in applying the federal rule in question

vi. Applying To Byrd: 1. Is SC judge rule bound up with rights forming basis for suit (Personal injury action to regulate harmful conduct) a. Judge rule is not integral to whether a person in or is not an employee, just the method of deciding 2. No, so balance: a. b. Interest of avoiding different outcome? No way to tell difference, not a huge effect Federal rule of juries deciding facts very strong, has basis in 7th Amd. vii. Applying To Erie: 1. State- Gross N 2. Fed- Simple N a. This changes the underlying right that the suit is over, and is thus bound up in State law. Its the state law that is the BASIS of the cause of action. Gross negligence is the very standard that dictates whether behavior is tortious, Therefore, Byrd test will consider this state interest is significant to overcome any federal interest and apply state law. viii. Applying To the York facts: probably apply state rule 1. State: S/L 2. Fed- Laches a. b. SoL is not usually part of the states definition of rights or obligations Interest in avoiding different state and fed outcomes, limiting forum shopping A. c. The different rules affect the outcome, could definitely lead to forum shopping once state SoL runs (and fed still available) Federal interest in their own limitations rules A. Interest in applying laches vs. state rule? i. Not as compelling as in providing a jury trial

ix. Applying Paper Sized Hypo Using Byrd Test 1. State law requires filings on legal, Federal requires letter, plaintiff shows up in federal court with legal. 2. Rule bound up in rights underlying action? a. Not even close, solely a regulation of litigation behavior 3. Balancing: a. Outcome determinative at some level, but only if timing is tight


But is it likely to lead to forum shopping? Unlikely, plaintiff just prints on different paper,

b. Federal interest in its paper size A. Efficiency of having same size paper for all cases is somewhat important, especially when it comes to filing and uniformity in documents 4. Federal interest probably would override state's interest, since its efficiency argument is stronger than concerns (few) with forum shopping e. Hanah v. Plumer i. Facts and Conflict of Laws 1. Traffic accident between Hanah & Osgood, and Osgood later died. 2. Hanah sued estate of Osgood, naming executor (Plumer) as defendant. ii. Conflict of Laws: 1. Mass: Service of process to executor must be in person within 1 year 2. Fed: FRCP 4- serve person at executors residence iii. Defendants Argument 1. Application of Mass rule results in dismissal for improper service (D wins). 2. Application of FRCP allows action to proceed. a. Choice of law is thus outcome determinative. b. So Mass rule must be applied (& case dismissed) under Erie & York. iv. Courts Analysis 1. Erie Analysis (If Applicable) Does NOT Require State Law in this Case 2. Hanahs Erie Test (Hanah I): Will use of the different federal law create: a. Forum shopping? b. Inequitable administration of the laws?

A. B.

This test will only be applied when Federal JUDGE-MADE law conflicts with State law. When a federal RULE (FRCP) conflicts with State law, Erie analysis does not apply, neither does the RDA. The Rules Enabling Act applies. c. Whats left out?


The first part of the Byrd test 3. Erie Analysis is Inapplicable to FRCP

a. FRCP governed by Rules Enabling Act (Federal Statute!)

4. Hanah II test

a. Is Rules Enabling Constitutional? Yes

b. Does Rule Comport with Rules Enabling Act: A. B. It regulates practice and procedure (broadly defined) It does not abridge or modify a substantive right. v. The difficulty lies when there is judge-made law v. state law--- you must then apply all the Erie, Hannah I, Byrd test. When the FRCP is in place, the Enabling Act is much easier to apply. 1. According to Chief Justice Warren, federal courts should apply one of the FRCP if "it really regulates procedure" f. Hanah Tests i. Federal Statute v. State law 1. Is the federal statute constitutional (is it within Congress enumerated powers)? ii. FRCP v. State law 1. Is Rule Enabling Act Constitutional? 2. Does FRCP in Question Comport with Rules Enabling Act? a. Regulates practice and procedure (broadly defined) b. it does not abridge or modify a substantive right iii. Federal Judge-made Practice v. State law 1. Will use of the different federal law create: a. Forum shopping? b. Inequitable administration of the laws? 1. Complex Litigation: Joinder of Claims & Parties a. Joinder & Federal SMJ i. Simple joinder of claimsFRCP 18(a)

1. Provides that a party seeking relief from an opposing party may join with his
original claim any additional claims he has against that opposing party. There is no common Transaction requirement.

2. Note of Caution: While Rule 18 may not force a P to join all his claims against
a D in a single action, the rules of claim preclusion may if the claims arise out of a single transaction

a. Ex: If a claim for B/K and negligence against a D, and both arise from
the same transaction, these would constitute a single claim for claim preclusion purposes that must be litigated in one action, despite 18(a)s permissive language.

3. Simple Joinder Hypo a. b. Anne (IL) sues Barb (IL) in federal court under a federal civil rights statute for unlawful termination from her job. Can Anne join in the same action a state law claim for wrongful termination? i. ii. c. Rule allows it (no limits) Fed SMJ? Yes, arises out of same transaction, so gets supp jur

Does Anne run into a problem if she chooses NOT to assert the second claim with the first? i. Yes claim preclusion would apply to later assertion

ii. CounterclaimsFRCP 13(a) compulsory and 13(b) permissive. 1. Definition: When used, you can assert a claim back against them a. When Allowed: Always b. Compulsorythere are certain counterclaims that I MUST assert, else I lose

i. A pleading must state as a counterclaim any claim thatat the

time of its service the pleader has against an opposing party if the claim:

(1) (2)

arises out of the transaction or occurrence that is does not require adding another party over

the subject matter of the opposing partys claim; and whom the court cannot acquire jurisdiction c. Permissive: dont have to assert every single claim because the burdens would be great and inefficient.

2. If the counterclaim arises from the same transaction, it must be asserted in

the initial action else it is forfeited; it forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action. 3. Why does compulsory or permissive matter? a. Have to know which to assert or lose the claim

b. Also, compulsory counterclaims will ALWAYS have

supplemental jurisdiction in federal court i. If claim arises from same transaction (same def for each)

c. A permissive counterclaim can NEVER get supplemental

jurisdiction, because it is by definition not related (otherwise would be compulsory) i. It may have other ways to get in to fed court, just not supplemental

4. Once a defendant has properly asserted a counterclaim under 13(g) (same

transaction) he may then join in any unrelated claim he may have against the 3rd party defendant under 18(a). a. Once a claim is properly asserted under 13(g), this allows 18(a) to kick in.

b. Caution: the fact that the Rules authorize joinder of multiple

claims, or claims against multiple parties, does not automatically confer subject matter jurisdiction (diversity, federal question) on the court to hear those claims. SMJ must be analyzed separately, the joinder rules will authorize the joinder of a claim, but the court may not have the jurisdiction to hear it. 5. Rule 13(h) authorizes a defendant to bring in an additional party on his counterclaim, so long as his claims against the added party and the original plaintiff meet the requirements of Rules 20(a)(2)(A) and 20(a)(2)(B) (that is, they share the same T or O and share a common question of law or fact) 6. US v. Heyward Robinson a. D'Agonstino sues Heyward for Navy job i. i. D'Agonstino counterclaims itself for Stelma job Why does it matter? SMJ and D'Agonstino's counterclaim b. Heyward counterclaims on Navy and Stelma Job c. Issue: is Heyward's Stela counterclaim compulsory? ii. Navy job had fed question (gov't contract) d. How did court determine if it was compulsory?

i. Arises from same transaction (common nuclear of operative

fact) ii. How if they were two different contracts? (1) Close and logical relationship (2) Contracts could be canceled or withhold pay based on incidents from the other contract 7. Exceptions to Compulsory Counterclaims a. b. c. Claim does not yet exist Claim is already pending in another court Claim requires joinder of parties beyond court's jurisdiction

iii. Joinder of PartiesFRCP 20

1. Authorizes Ps to sue together if they assert claims arising out of the same transaction or occurrence and their claims against the D or Ds will involve a common question of law or fact.

a. However, Rule 20(a) does not require parties to be joined whenever

the criteria in the rule are met, as the plaintiff is the master of the complaint 2. Plaintiffs may join in one action as Ps if: a. They assert any right to relief jointly severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and b. Any question of law or fact common to all Ps will arise in the action 3. Defendantspersonsas well as a vessel, cargo, or other property subject to admiralty process in remmay be joined in one action as Ds if: a. any right to relief is asserted against tem jointly, severally, or in the alternative with respct to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and b. any question of law or fact common to all defendants will arise in the action. 4. Mosley v. General Motors a. Nine different people sued GM for various employment discrimination claims b. GM filed motion to sever the claims, on grounds that the represent different events and different actions c. Trial court granted, severed the claims, plaintiffs appealed i. Even though this was just pleading stage, trial court allowed immediate appeal ii. What impact does severance have on plaintiff's claims? (1) Claims heard separately (2) If all heard together, cumulative effect of evidence may sway jury on a weaker plaintiff's case a. sharing litigation costs also may occur d. Joinder under Rule 20? i. Do they arise from same transaction/occurrence (Close and logical relationship) (1) Not the individual transactions, but each alleged a GM wide policy of discrimination (2) Had the nationwide policy not been alleged, the same transaction test probably would not have allowed joinder ii. Do they share a common question of law? (1) Yes, the allegation of company discrimination policy

iv. Compulsory Joinder of Parties (FRCP 19) 1. There may be times when a plaintiff has sued one party, but defendant says there are other parties out there that are essential to the litigation (without derivative liability) 2. 3. 4. This happens very rarely a. a. a. But if the parties are not joined, the action can be dismissed When they are Necessary and Indispensible A party who meets SMJ criteria must be brought in if: i. ii. iii. b. 5. 6. It is required for complete relief Has an interest that could be impaired by the action It could face multiple or inconsistent judgments When are parties compulsory? FRCP 19(a): Necessary (required if feasible)

If the parties meet these requirement, plaintiff has to join them, or face dismissal

What if the parties cannot be brought before the court (no SMJ or PJ?) Rule 19(b): Indispensible (dismissal if not feasible) a. b. Are the parties are so critical to the action that it has to be dismissed if they cannot come in? Factor for determining this i. ii. iii. iv. Likelihood of prejudice Extent that prejudice can be reduced Adequacy of judgment without person Availability of remedy if case dismissed


This is rarely an issue

v. ImpleaderRule 14 1. Defendants are afforded the opportunity to join parties to the litigation through Rule 14, which provides for the joinder of an assertion of claims against nonparties a. FRCP 14(a)(1) i. ii. (a) When a Defending Party May Bring in a Third Party. (1) Timing of the Summons and Complaint.

2. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. a. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer

3. Impleading a 3rd party does not affect the courts jurisdiction over the original
claim (this prevents Ds from manipulating jurisdiction by Impleader). However, there still must be a basis for subject matter jurisdiction over the D and 3rd party, as well as personal jurisdiction. Also, the 3rd party does not affect venue.

4. Rule 14 simply allows the second action to be joined to the first, into one
proceeding a. b. The defendant facing liability can implead the party who would be liable to them in another action (makes two actions into one) Rule 14 does not CREATE the liability, substantive law does, but just allows insertion of third party claim when the third party asserts derivative liability i. Third arty liability liable to defendant, because defendant is liable to plaintiff ii. Must be an indemnity type of claim 5. Rule 14: Can only implead if asserting derivative liability a. Can't implead if other is just liable to defendant b. Can't implead is saying not liable, other person is vi. All of these Hypos involve separate suits, law allows defendant to recover from third party because of defendant's liability in first action 1. Third party liability exists solely because of defendant's liability in first action

Impleader Hypo A: 1. Bank requires parents to cosign note. 2. You promise reluctant parents to pay them back if they ever have to pay anything. 3. You default & bank sues parent. What can parent do? Bank -----> Parent, Parent---> You

Impleader Hypo B 1. You have renters insurance. 2. While visiting your apartment, I trip on the carpet and am injured. 3. I sue you. If I prevail, do you have any recourse? I ---> You, You ---> Insurance Co

Impleader Hypo C 1. Grocer buys inventory from manufacturer. 2. Consumer buys a can of soup from grocer. 3. Soup makes Consumer ill because the soup contains some foreign substance. a. Consumer sues Grocer. b. Does Grocer have any recourse? Customer ---> Grocer, Grocer ---> Manufacturer

b. Specialized devices (intervention, interpleader, & class actions) c. Intervention i. Plaintiff sues defendant, a third party wants to inject themselves into the action 1. Usually as a plaintiff, but not always ii. When will FRCP let outsider become a party? 1. Intervention of right? a. b. c. 2. If party has an interst Action may impair interest Interest in not adequately protected by existing parties

Permissive Intervention a. Court may allow intervention if there is a common question of law or fact b. Discretion of judge

d. Interpleader i. Unique procedural device that permits a party in possession of property that it does not claim to own (stakeholder) to join all claimants of the property (the stake) in a single action to determine who owns the property 1. Necessary because otherwise a stakeholder might be subject to multiple or inconsistent judgments 2. There are two ways to institute interpleader actions a. Rule Interpleader using FRCP 22 i. When attempted under Rule 22, ordinary SMJ, venue and PJ restrictions apply b. Statutory Interpeader using 28 USC 1335 i. Permits an interpleader action in federal court with amount in controversy of only $500 ii. Only requires two or more adverse claimants to be diverse iii. Venue proper where any claimant to the property resides iv. PJ is more generous v. 2361 permits courts to restrain claimants from pursuing any action involving the stake in another court e. Class Actions: FRCP 23 i. This is a joinder device, and more ii. Plaintiff(s) (rarely defendant) files a claim to recover not only for themselves, but also everyone else in their situation 1. Binding on all class members, has much bigger teeth and preclusive effect that usual actions iii. Rule 23 Requirement:

1. Implied Prerequisites: a. Need a definable class b. Named party is a member 2. 23(a): Express Prerequisites

a. Numerosity (too many plaintiffs to name) b. Commonality (all plaintiff must share common questions of law or
fact with named party)

c. Typicality: named party claim must be typical of those in class d. Adequacy of Representation: Named party and counsel must be
able to adequately represent the entire class 3. 23(b): Allowable types of Class Actions (don't need to know) a. R.23(b)(1)Anti-Prejudice Class Action permitted if individual actions by class members create risk of: i. Inconsistent adjudications creating inconsistent obligations for party opposing the class; or ii. Individual adjudications disposing of or pairing the interests of other members. b. R.23(b)(2)Common Conduct Class Action i. Opponent acted on grounds generally applicable to the class as a whole; ii. Thereby making appropriate injunctive or declaratory relief with respect to the class as a whole. c. R.23(b)(3)Common Question Class Action i. Common questions of law or fact predominate individualized questions); & ii. Class action is the superior method of controversy. 4. Class Action Procedures a. Certification b. Notice i. Have to provide notice to ALL members c. Class Counsel i. Court selects class counsel d. Settlement & Dismissal i. Cannot be settled/dismissed without permission of court ii. Court is looking out for interest of absent parties handling the (over