Gaspirini: when you have procedural rule applicable in only one area of law, its strictly substantive.

SEE HANDWRITTEN CHARTS IN NOTEBOOK!!! Substantive: does state law effect your behavior before entering court? Rights and duties between parties law meant to govern outside the court room? Shaddy Grove Punitive class action case. Chriss Exam Essay Relying on Erie, when there is a conflict of law the rules decision act applies unless congress says otherwise. Relying on Hanna, the rules enabling act is congress saying otherwise through congressional authorization. Overriding federal interest seen like the Fair and Reasonable test. A balancing test is created to determine if there is an overriding fed. interest. The forum shopping concern (the extent it may affect the outcome of the case) is weighed against the federalism concern (the extent the federal interests overrides the states interest). The states interests, degree of forum shopping + discrimination against the federal interest all must be analyzed as an overriding federal. Interest. 2-2-12 Reverse Erie Strictly Substantive? Yes: Federal No: Does State law stand as an obstacle to OR discriminate against Fed Law? Yes: Federal No: State Law Revese Erie is straight forward.

Cases to note: o Claxton: the rule is federal court will apply conflict of law rules of the state it sits. o McKenna: the rule is Federal court asks how would the states highest court decide the issues. o Vandusen: the rule is when the case is transferred under 1404, you apply the conflict of law rules to the transferor court. Federal Common Law Is binding under the supremacy clause in state courts. It is when there is no statute and there is strong federal Interest. Some examples of this are international relations, U.S. Citizen vs. Federal parties. Its main purpose is to fill in the gaps in the legislation. REVERSE ERIE Erie Reverse Erie Claim State Claim Fed Claim Court Federal Court State Court Substantive State Law Federal Law Procedural Federal Law Federal Law

Pleadings Main pleading rules are 8,9,10, and 11. Rule 8: deals with notice pleadings. Rule 8(a)(1): jurisdiction statement. Jurisdiction statement needs two things Claim for cause of action

Relief from money Twombley Case: when Discovery is very expensive. Rule 9(b): is the exception when one alleges fraud or mistake. Rule 9(g): if you are alleging for special damages, you are Special Damages are out of pocket damages that you can put a price on. Rule 10: Caption in the complaint. Rule 11: the signature of the complaint. When you sign, you are attesting to 4 things: Its not harassing, Its in good faith You have existing law that supports your contention You have evidentiary support Rule 15 Relation Back Rule: When statute of limitation has expired, and then you are trying to add a claim or party. The question you ask is does the claim relate back? KNOW RULE 15. THERE WILL BE A SHORT ANSWER QUESTION ON THIS RULE ALONE! 15(A)(1): Any party can amend a pleading at least once, but can only be done before being served with a responsive pleading (dismissal, etc) 15(a)(1)(b): You have 21 days after serving a pleading, but if its after the trial calendar, than you cant amend. 15(a)(2): after 21 days you need other parties consent to amend, or the permission of the court. The general rule from (a)(2) is that the court should freely let one amend if injustice will in fact arise. The question to ask for the timing of the amendment is, is the opposing party any worse off from the time of the amended complaint? 15(b): Moore v. Moore 15(c): Relation back, only if you pass the statute of limitations. General rule, Relate back when state law allows for relation back. 15(c)(1)(b): Add a claim to the suit of an existing party after the statute of limitations has passed. For example: if you file claim 1, and the statute of limitations is 3 years, and you decide to add a second claim at 3 years and 1 month, you must satisfy 2 things: 1. Same Transaction of occurrence, and 2. Same party. 15(c)(1)(c): The following three rules must be satisfied for amending a pleading; 1. Same transaction or occurrence. 2. D received notice of the action, within 120 days. 3. D knew, or should have known that he was the intended party. The general rule is that you cant do this when trying to change the party. You dont use this rule to add a new party, its used to replace an old party.

THIS EXAM IS RULE BASED. ORGANIZE YOUR OUTLINE BY RULE. 2-9-12 Very Ruled Base! TAB YOUR BOOK!!! For Outline, know the rule for each section with notes underneath 26(b)(1) Discoverable rule: The main question to ask for this rule is, is it relevant? what is relevant? Anything relevant to a parties calim or defense. Does it tend to support, disprove, or clarify issues in dispute. Its calculated to lead to admissible evidencethis doesnt mean that it IS admissible, it just means that its possible that its is admissible. You cant discover privileged information. o Ex of priv info: attorney-client info, work product, unduly burdened some. 26(c)(1): you can obtain a protective order for relevant material. You're protecting a party from annoyance, embarrassment, oppression, or undue burden / expense. 26(e) you have a duty to supplement interrogatories, but no duty to supplement depositions UNLESS it is an expert deposition. 26(b)(3): Work product: anything by or for the attorney____. Can be oral or written.

Note: an oral conversation transcribed on paper does not become written documentation until the document is signed. Videos, signed statements, If I give a written statement, and I dont sign it, that is only ORAL WORK PRODUCT, not written work product. Oral is everything else without validation. Oral can be written but not signed. Written work product can be overcome. You must show substantial need. Oral work product cannot be overcome. What is better, oral or written work product? It depends. Written statements must be signed. Video responses and recordings are considered written because the person giving the testimony is identified. Differences between oral work product and written work product Work product can protect interviews with third parties. Attorney-client privilege is only between the attorney and the client. The attorney client privilege is broader. Work product can be overcome with substantial need for written info. The attorney-client privilege is absolute, unless waived. Expert Testimony: The distinction for expert testimony is, are they testifying or not testifying. 26(a)(2): you must disclose names at least 90 days before trial. You must report their oppinions and the basis for the opinions of the expert witnesses. You must give their qualifications. And you must tell the courts the how much the expert witness is paid to testify. 26(b)(4)(B): No disclosure is required. The main case is Krisa. Under the expert testimony. Krisa gives the reasons to distinguish between testifying and not testifying. Communication from council to testifying expert witnesses are discoverable. You can only seek discovery with non testifying witnesses with exceptional circumstances. 26(a): What must be disclosed 26b: Scope of discovery.

TAB RULE 26-37 27: Depositions to perpetuate testimony. o There are exceptions to rule 27 Person will not be available later (the dude is dead). For this to apply, you must state, with particularity, the circumstances for deposition. 28: persons before the deposition is taken. 29: Stipulations about the discovery procedure. 30: Oral depositions. 31: Depositions on written questions. 32: Using depositions in court proceedings. 33: Interrogatories. o Are questions in the form of writing, where the response is in writing too. Depositions are orally communicated. o You can only give to a party. NOT to a non-party. o Limited to 25 interrogatories, per person, x number of dependence. o You have the duty to supplement interrogatories. o The standard for interrogatories is reasonable investigation. o You have 30 days to complete interrogatories Rule 33(b)(2). o If the other party doesnt answer your interrogatory, you must first consult with the opposing attorney before filing a motion to compel. The courts want you to take care of problems yourself. o You have objections in interrogatories; unduly burdensome, and irrelevant. 34: Requesting documents. 35: Physical and mental examinations o Two standards for conducting physical / mental exam: 1. Must be a party, or 2. a person in legal control

The person you want to take the exam must have a physical or mental condition in controversy. The test must be for good cause. The court will weigh all factors against the usefulness. 36: Request for admission o Must be in writing to the other party. If the party does admit, it is binding. The party does have the opportunity, however, to amend answers. o Under Rule 15(b) court will allow amendment, unless prejudicial. o You have 10 days to respond. If you dont respond, its treated as an admittance. But keep in mind, you can amend. o If you deny, the other party will try to prove wrong at great expense. If you are proven wrong in court, than you will have to pay expenses. o 36(a)(4): if the court does not admit, you must give an answer. 37: Sanctions. o Failure to cooperate during discovery. o An example of a sanction is to pay attorney fees for failure to cooperate. A judge determines this. o Motion to compel; when you consult a deposition or interrogatory and the answering party refuses to answer, the motion to compel forces that party to answer (if granted by the court). o 37(a)(1): confer to the other party the motion for help.

Attorney Client Privilege Person asserting the privilege has the burden of proving the privilege. The privilege protects the communication, but not the facts. Privilege includes agents of the attorney or client. KNOW UPJOHN! If its a corporation, all employees are privileged as well. You can waive that privilege. But for corporations, only the control group can waive the privilege, even though all employees have it. The conversation must be behind closed doors. If there's a third party present, or the conversation is held in public, the conversation is NOT privileged. Understand, that your spouse, or your parents living in your home, where the conversation took place, are still considered third parties, and can make the conversation unprivileged. The conversation must be in furtherance of the professional advice. For example, your brother calls you while robbing a liquor store, and you're an attorney, you must consider the facts in their entirety, because if you're giving him advice as a brother, than its unprivileged. If you're giving him advice as an attorney, than its privileged. The client has the privilege to waive, NOT the attorney. Waiver is all or nothing. If part of a conversation is disclosed to a third party, the entire communication is waived. Its all or nothing. If the waiver is inadvertent, you can try to get the waiver back. Ex. sent an email to the wrong person by accident. 26(b)(3) Notes from March 8, 2012 4 types of Improper Arguments Based on matters not in the evidence (Ex. argument is trying to appeal to the juries passions and beliefs) Remarks as to whether the D is insured against the liability claimed. Telling the jury to treat my client like you would like to be treated. Distort the evidence to arrive at an unjustified inference. 5 things you need for Depositions Exceeded the limit of 10 depositions You need the parties permission Second deposition of parties permission The Second deposition is longer than Premature Deposition (Rule 27) Rule 34 Request for Documents

The type of documents requested for are electronic and tangible documents. If the documents are easily discoverable, the responding party pays the cost. If the documents are inaccessible or difficult to obtain, the courts can consider cost shifting (Subalaki case).

There are several things the courts consider for requested documents. How tailored the discovery request is. Is the information available from other sources Total costs to obtain the discovery relative to the total amount in controversy Total costs relative to resources of parties. Relative ability for each party to control costs. Importance of the issues at stake Relative advantages of getting the discovery. Jury Trials The right to the jury trial can be constitutional and court ordered. You must make the demand in writing, and in a timely matter. Timely is considered 14 days from the last response of the pleading, or if the response was removed, 14 days from that. Rule 39, court can allow anyway, even if untimely. But no court ever does. The right to trial by jury test: If the right existed in similar actions in commonlaw. This is the General Test. Goldmans TEST: If there is going to be damages, you can expect there will be a trial by jury. Equitable relief cases: o the question of law is decided by the judge. o Question of fact decided by the jury. o The judge is bound by the juries finding of facts to determine equitable relief. Administrative Cases o No right to a trial by jury. Trial By Jury No right by a trial by jury If you're in a state court and there are nominal damages involved, you have no right to trial by jury (Goldman Rule). Reasons you have a trial by Jury Sympathy Strategy Showmanship Sincerity Reputation of the jury pool and court. Wayne county is Pro Plaintiff

Jury Selection (Boir Dire) Judge asks the question, usually. Attorneys rarely ask questions. Attorneys are allowed to challenge the jury selection. Two types, for jury selection: For cause Usually for when the jury is biased, and you have an unlimited for-cause challenges. For preemptory You can challenge for any reason (except for race gender, orientation, etc.) Jury Trials are easy to get reversal on appeal. Judge can comment on evidence in a jury trial. Its easier to get summary judgment or directed verdict, after the Ps evidence. For bench trial, there is no opening or closing statement. There is a higher chance of new trials, and bench trials are more lenient in allowing evidence. Rule 35 Mental and Physical Examinations

It is only for parties, and persons in control of the legal party. It does NOT include agents of corporations.

Pretrial Conferences They vary by judge and jurisdiction They are strongly encouraged in federal court Pretrial conferences are not mandatory, but the scheduling layout is mandatory. Three basic functions Used to prepare for trial Stream lines litigation (everything is agreed on before discovery) Encourages Settlements. General Discovery Rule For things to be discovered, they must be admissible under the rules of evidence. Rule 32 Depositions A non parties depositions can be used for 2 purposes in trial: Impeachment purposes The party is unavailable, and that unavailability is not procured the parties (meaning, a party is paid to disappear so that they cant testify). Rule 32(a)(2) and Rule 32(a)(4) Some other reasons for unavailability Persons inability to comply with subpoena Persons ill, incompetent, in prison, was paid to leave, or person is dead. Depositions of a party under two factors. Everything for non parties applies to Persons ill, incompetent, in prison, was paid to leave, or person is dead. Deposition can be used by the opposing party for any purpose Rule 32(a)(3) Sanctions Rule 37(b)(2)(A) A party may be sanctioned for disobeying a court order. That disobedience can be both willful or un-willful in order to be sanctioned. Sanctions include Costs, which includes attorneys fees. Sanctions can be as severe as dismissal. Rule Any non party can be sanctioned up to contempt of court, and paying costs. Three challenges to a pleading The pleading is not sufficient Rule 12(b)(6) Challenges to abatement matters 12(b)1-5 These challenges must be in the motion or in the answer, and it must be the first response in the those documents. The only exception to this is SMJ, which can be raised by anyone at anytime. Challenges to Form (Two types) 12(e): a Request for a more definitive statement 12 (f): A motion to strike based on redundancy, scandalous. If you have a 12(b)(6), the P has a right to amend its complaint. THE FLOW CHART EMAILED TO YOU BY CHRIS IS ONLY GOOD FOR STEVENS VIEW WHICH IS THE MAJORITY. IT SHOULD BE THE FIRST PAGE OF THE DOCUMENT EMAILED TO YOU. THE REST, DISREGARD. March 15, 12 Erie is only about Shady-grove. Summary Judgment For Summ Judgment, you only need the handout that Goldman gave us. The party with the burden of proof at trial is always P. The D has no burden of proof , BUT IT CHANGES DEPENDING ON WHO PETITIONED.

There is a 20 day time limit under rule 20(b).

Directed Verdict Directed Verdict is before it gets to the jury. Know the rules! Know when to fi Default Judgment Rule (Rule 55) Judgment entered against the D who failed to plead, or otherwise defend against Ps claim. 5 reasons why D may allow a default i. May agree with the claim ii. May think its not worth time or money iii. D made a mistake iv. Insolvent, and cant pay for it anyway (D is broke) v. Confident the court does not have jurisdiction. There is a three step process for Default Judgment Entry, which is Rule 55(a). The clerk enters into the system that the party is admitting fault. Under Rule 55(c) the court can set aside default if there is good cause (example, inadvertence) Judgment, under Rule 55(b) 1. Judgment comes by judge or clerk and it depends if there has been an appearance by the D. 2. 55(B)(1) If the D did not appear, and damages were for a certain amount, than the P can petition the court clerk for the judgment. 3. 55(b)(2) everything else must go through the judge. 4. If there is no appearance at the hearing and damages are uncertain, P must prove damages to the judge. 5. 55(b)(2)(ii) Notice for hearings is 3 days. 6. If D shows up to the hearing, D can argue the merits, but will not relieve judgment. He can only relieve damages. 7. Courts do not like to give default judgments. Courts will still look at a claim and verify if there is a legal basis for a judgment.

Rule 41 Voluntary and Involuntary Dismissals Involuntary Dismissal Rule 41(b). The P makes a motion for dismissal. If its granted, than its based on the merits. There are three exceptions for when it wont be a judgment on the merits. Based on lack of jurisdiction. Improper venue. Failure to join a party under rule 19. Voluntary Dismissal 41(a) Done by the P. Two ways to do a Voluntary Dismissal Right to dismiss prior to the answer or a motion for a summary judgmentwhichever comes first. Filing a stipulation dismissal signed by all parties. Generally a dismissal is done without prejudice and can be refilled Two exceptions: Stipulation says you cant re-file Its not the first dismissal. Ex. an adjudication on the merits and you cant refile. The court can also do a voluntary dismissal if the court thinks its proper.

Rule 59

New Trial Motions Two reasons why a court will grant a new trial 1. Challenging the juries weighing of the evidence. The judge is allowed to wave the evidence. 2. Something went wrong with the trial setup. Standard on appeal is abuse of discretion. A new trial will be on liability and damages unless liability is absolutely clear. Sua Sponte Rule 59(d): The judge himself can order a new trial without a motion. Rule 59(a)(b) If a new trial motion is granted, it is not a final judgment. You cant appeal the grant of a new trial until you go through the new trial, and the appeal is no later than 10 days after the date of the judgment. Make sure you know all of the timelines of when you can and cant do things in court, and the dates when times expire.

Additur and Remittitur Additur: Judge thinks the juries damages are too low, so he can increase it. Remittitur: judge thinks the juries damages are too high, so he decreases it. Neither are admitted in Federal Court (? This is questionable) Rule 60 Relief of Judgment You will have a short essay question on this. Know this rule. Main parts are 60(a) and 60(b) 60(a) allows release of judgments from clerical mistakes. 60(b) allows release for judgment for 6 things Mistake, inadvertence, surprise, or excusable neglect, Newly discovered evidence that with reasonable diligence could not have been moved for new trial under 59(b). Fraud Judgment is void Judgment has been satisfied, released, or discharged, is based on an earlier judgment that has been supplied or vacated, and Any other reason that justifies relief. Relief from judgment is mainly used in default judgment situations. 60(c) Timing Witness perjury is not fraud of the court, unless the attorney promotes witness perjury. TA session that I missed. Mr. Halls notes RES J REVIEW SESSION 3.22.12

1. ...... 2.) Husband and wife are privies when Virtual representation concept when using the same attorney. Ex. from a couple classes ago. 3. Full and Fair Opportunity to get to the merits. Summary Judgment & 12(b)(6) are on the merits. Personal Jurisdiction and SMJ or Venue are not on the merits. Remember from last review session Default is on the merits

4. Has to be Final Judgment

EXCEPTIONS TO CLAIM PRECLUSION Can waive the right to assert claim preclusion. (USE IT OR LOSE IT). If the judgment is void from the first law suit, you may bring the second law suit. First Judgment was quasi on rem case where . Recap to

Partys consent GOLDMAN Federal Anti-Trust Claim brought in state court that could have been brought together in supplemental. FINAL SIDE NOTE for CLAIM PRECULSION: A single tort is the same transaction or occurance. HYPO John sues Goldman for damages to his car, John loses. Felix who was driving in the car with John then sues Goldman for Personal Injuries. NO CP. Because it is not the same parties, no CP. This essay is really easy. Make a sample essay of this, erie and other. ISSUE PRECLUSION Four Elements o Second Suit must involve the same issue. o The Issue must have been actually litigated. o Summary Jud & DVs are actually litigated. . o Necessarily Decided. IF It can be appealed, then it is necessarily decided. You can appeal something if it leads to a final judgment. The party bound whom against you are asserting the IP had a full and fair opportunity to litigate.

Elfman & Aguano Cases? Majority Opinion - party to be bound had full and fair opportunity to litigate in the first lawsuit. Minority Opinion - requires mutually (same parties as in the first suit as in the last suit) SOLE Exception for IP: Significant Change in Law or Fact

FLOW CHARTS JUST FOR # 3 Necessarily Decided Do you know what was decided (If extrinsic evidence reveals, consider as yes)-> No = Not binding Yes, then move forward. Did the party to be bound win? - >> Yes, then not binding No then move forward Was there just one issue found against the party? -> Yes, necessary; IP if other elements too. NO, then move forward Were multiple issues literally necessary for party to be bound to have lost? - > Yes = Necessarty; IP if other elements too. No , then move forward. NOTES for #3 Minority: all issues are binding Majority: no issues are binding unless you appeal, then they are all binding. * Only use if multiple issues. FLOWCHART FOR ELEMENT #4 - WHO IS BOUND? (FOR PURPOSES OF FLOWCHART, Party = Privity, IP = IP assuming all other elements are met.) Walk through the elements 1. answer 2. answer 3. go through flow

4. go through flow Dont stop. Just like PJ essay. Walk through all 3 for Claim Preclusion, 1 for Issue Preclusion 1.) Were both parties adversaries in 1st action? -> Y=IP if (Other elements) No, then move forward 2.) Was party against whom IP is sought a party to 1st action? -> N = NO IP Yes, then Move Forward 3.) Does Jurisdiction require mutuality? No = Offensive IP N= IP if other elements Yes, then move forward 4.) Jurisdiction recognize offensive and not against government? NO = NO IP YES = IP (subject to Parklane factors) and if (other elements) Yes, then move forward 5.) Does Fleming apply? No - NO IP Yes, IP if other elements Short Answer Name Parklane factors. HYPO about size of paper is a short answer

April 12 - will be a long review session. 19th open forum questions!! April 12, 12 Notes We will have the final semester revue session next Thursday. The Final Exam is accumulative. Essay question. It can be on Erie (Shadygrove!), Claim Preclusion / Issue Preclusion, Attorney Client Privilege, WRITE OUT ESSAY ANSWERS, ESPECIALLY FOR ERIE! Know reverse Erie too. Flowchart for Element #3 of Issue Preclusion Do you have what was decided? N = No IP. o Yes, than move forward. Did the party to be bound win? Y = No IP No. Then move forward. Was there just one issue found against the party? Yes, IP if (other elements) No, then move forward. Were multiple Issues necessary? Y = IP if (other elements) No, then move forward. Minoriry issues are binding / Majority no issues are binding unless you appeal, than they are binding. Minority = all issues are binding Majority = no issues are binding unless you appeal, then they are all binding. Flowchart for Element #4 of Issue Preclusion. Were both parties adversaries in 1st action? Y = IP if (other elements) o No, then move forward. Was party against whom IP is sought a party to 1st action? N= No IP.

Yes, then move forward. Does jurisdiction require mutuality? N= Is it offensive IP? N= IP (if you have the other elements) Yes, then move forward. Jurisdiction recognize offensive IP and not against government? No= No IP Y= IP (Subject to Parklane factors) and if (you have the other elements). Yes, then move forward. Does Flemming apply? No= No IP Yes= IP if (you have the other elements. )

The difference between Offensive and Defensive Issue Preclusions: Offensive IP: P1 v. D = D lost. P2 v. D and P2 uses IP to win. Defensive IP: P v. D1 = D1 wins. P v. D2 and D2 uses IP as a defense, in order to win. Flemming Case Examples P v. Contractor, P loses. J P v. City, City motions for IP. City had a right of indemnification (the contractor was working for the city, and so the city was covered by the contractor if the contractor fucked up) for IP. Taylor v. Sturgell. Virtual Representation under Issue Preclusion. 6 Exceptions 1. Party agreed to be bound (i.e., class action suit). 2. Substantive Legal Relationship (signor / signee). 3. Same interests have adequately been represented (suits by trustees and guardians) 4. Whether you assume control. 5. Whether you litigated through a proxies or agent. 6. Special Statutory scheme (such as bankruptcy). Hypothetical. Husband and wife are in car accident. The husband sues and loses. The wife sues the same D, using the same attorney. Is there IP? Walk through the flowcharts. There is no issue preclusion because of the exceptions under Taylor v. Sturgell. Hypothetical 2: L sues C for trespass on land. C says L does not own the land! The court determines that L owns the land and awards damages for trespass. In a second suit, L sues B for trespass on the same peiece of land. L tries to use Issue Preclusion. Can L use IP? Walk through the flowcharts to answer this. There is no IP because Parklane Factors. YOU NEED ALL 6! IF ITS AN ISSUE PRECLUSION ESSAY YOU WILL NEED TO BUST THESE FACTORS OUT! YOU ONLY HAVE 4. THE LAST 2 ARE IN THE E&E BOOK. 1. The prospect of taking advantage of another Ps victory to establish crucial issues without trial may lead to Ps to wait and see that is, to hold back from joining in the 1 st Ps suit. 2. Parklane Court recognizes that a party might not have litigated the issue aggressively in the first action if the stakes were small or the forum inconvenient. 3. The court noted that it may not have been possible for the losing party to litigate effectively in the first action if the procedural rules of the court that decided the first case were more restrictive than those of the court hearing the second.

4. One or more prior inconsistent judgments on the issue may suggest that it would be unfair to give conclusive effect to any one of them. 5. 6.