Civil Litigation:Process and Procedures
Chapter NineteenPosttrial Procedures
Civil Litigation: Process and Procedures Goldman/Hughes
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Termination of Litigation Motion for judgment on the
pleadings Motion for summary judgment Default judgment Settlement & waiver or dismissal Bench trial verdict Jury verdict Final appellate ruling
Civil Litigation: Process and Procedures Goldman/Hughes
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At the Outset of Litigation Motion for judgment on the
pleadings Claim of judgment as a matter of law Considers all the pleadings, finds no
material fact in controversy Motion for summary judgment
Similar claim of a right to judgment as a matter of law, no disputed facts
The court can go off the pleading & consider other materials, such as discovery documents
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Default and Verdict Default judgment may be
entered upon the request of the π if the Δ fails to answer & defend the lawsuit
A verdict is the decision of the jury resulting in a determination of liability and/or damages
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Entry of Judgment The outcome is entered on the
docket of the court The date of entry is the starting date
for time limits on post-trial proceedings
This gives public notice of the trial results
The judge may orally enter the judgment or may require a written order, prepared in advance
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Entry of Judgment Form
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Trial Errors Once judgment is entered, post-trial relief must
be considered Losing party will review the trial for errors
(paralegal’s trial notes help here) Winning party may consider appealing the
amount of the win Appealable error may be based on the claim that
the verdict is unsupported by the evidence The claim may be that the judge erred in
admission of evidence and/or jury instructions
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Evidentiary Error Appeal is based on the judge’s decision to
admit or exclude evidence May be based on the type of evidence,
e.g., hearsay, or the failure to properly authenticate evidence
The appealing attorney must have objected at the time
This preserves the record for appeal by bringing the alleged error to the judge’s attention while there is still time to “cure” it
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.9
Jury Instructions The legal team prepares proposed
jury instructions & submits them to the judge – pretrial conference, supported by a memorandum of law
The judge (trier of law) determines which ones are the proper statement of the law
The judge tells the jury what law to apply to the facts they determine
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Verdict Unsupported by the Evidence Jury error
Fails to properly consider the evidence
Misapplies the law May have made an emotional
response to the evidence, rather than an objective analysis
Not the same as finding one side more credible than the other
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Harmless Error To be the foundation for an appeal,
the appealable error must Have resulted in harm or prejudice to
the appellant Be severe enough to have altered the
outcome of the trial Harmless error is a trial error that
did not affect the outcome of the trial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Clear Error Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,
866 F.2d 228 (7th Cir. 1988)
“[T]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.13
Motion for Judgment as a Matter of Law
Also, judgment notwithstanding the verdict, or judgment n.o.v. (non obstante veredicto)
“No reasonable minds could disagree,” and yet the jury found Contrary to the weight of the evidence In the absence of contradictory evidence
Judge renders a judgment contrary to the jury’s verdict, as a matter of law
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Motion for a New Trial
Made to the trial judge, instead of an appeal
An error was made during trial By the judge or jury So prejudicial that it constitutes a denial
of justice It is not clear that the other side
would win, so a new trial (with the error corrected) is required
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.15
Motion to Mold the Verdict Asks the judge to recalculate the
amount of damages determined by the jury Remittitur – damages found were
beyond the scope of evidence or damages claimed, and the Δ is entitled to a reduction in the amount awarded
Additur – although the π “won,” the damages awarded did not correspond to undisputed evidence of damages
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.16
Local Rules Some jurisdictions require a review
of the judgment before it is final and appealable
Judges, frequently 3, sit en banc for the review
Some jurisdictions require that a bench decision be accompanied by findings of fact & law before it is final
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Allowable Costs Federal Rule 54 permits the
prevailing party be allowed costs 28 U.S.C. 1920 specifies
Fees of clerk, marshal, court-appointed experts, witnesses, interpreters
Court reporter fees for parts of the transcript required by the trial, printing, copies of necessary papers, docket fees, other interpretation service fees
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Appeal Right to appeal to an intermediate
appellate court (unless there is none in that jurisdiction – then to high court)
Governed by rules of appellate procedure
Final judgment required Not interlocutory, or interim, except
rarely A decision that allocates the
responsibility
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Appellate Procedures Appellant files a notice of appeal
May include several issues (shotgun) May concentrate on a single issue
(rifle) Other side may file a cross-appeal
if not entirely satisfies (won, but not enough damages awarded)
Must consider federal or state rules & local court rules for format, timing
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Appellate Rules May need to research, particularly
in a foreign jurisdiction (local rules may vary from district to district within a state)
Comply fully to avoid having the appeal quashed (dismissed) Margins & stapling Weight, color & size of paper, cover Type fonts & size, etc.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Notice of Appeal Federal requirement
Clerk of district court 30 days from entry of judgment,
unless there are post-trial motions pending
Can ask for an extension if there is a reasonable basis for the request
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Notice of Appeal Format
Civil Litigation: Process and Procedures Goldman/Hughes
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Record on Appeal The appellant assembles the
record for appeal, provided to the clerk of court Original papers (pleadings, motions,
briefs, etc.) & exhibits Certified copy of the docket entries Pertinent portions of the trial
transcript The clerk of court will forward the
record to the court of appeals
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.24
Trial Transcript The appellant orders a transcript of
the trial, or specific portions, pays for it & includes it in the record
The appellee will review the sections ordered & may order additional sections for context
The court reporter has 30 days (fed.) to submit the transcript to the clerk
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.25
Scheduling Order Some circuits permit the clerk of
court to issue a scheduling order Sets out the timelines for
Completion of the record (including supplements)
Briefs Oral arguments Other requests, motions
Civil Litigation: Process and Procedures Goldman/Hughes
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Appellate Briefs
Written arguments setting forth The error claimed The legal authority relied upon
Brief components are generally Cover, Table of Contents, Table of
Authorities Facts & allegation of jurisdiction Issues presented & short answer Argument & conclusion Appendix & Certificate of Service
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Paralegal Role Check all applicable rules for
Format & contents Deadlines (calendar reminders) Page limitations, number of copies
required Draft portions of the brief
(generally not the argument) Assist in legal research, cite-
checking
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Filing and Service Some jurisdictions require paper
copies Some courts permit electronic
service Parties agree to waive service of paper
copies Brief is in a specified native format (e.g.,
PDF) If on a portable storage device, it must
be well-labeled Completed Proof of Service still
required
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Research and Writing Paralegals should be able to
perform basic legal research, from books or online Find cases, statutes, constitutional
provisions, regulations, court rules Locate pertinent secondary authority Properly cite, according to the rules of
the jurisdiction
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.30
Citation Checking Verifying citations to both the trial record
and legal authority Check that the cites are accurate by page, line,
paragraph and/or volume Check that they comply with the preferred
citation format for that court Check that quotations are accurate Determine that the reference actually stands
for the legal principle attributed to it Validate sources, to determine they are still
“good law”
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.31
Oral Arguments May not be required Attorneys are given the opportunity to
answer questions raised by the brief, but not simply repeat material
The attorney will attempt to illuminate the reasons for a positive decision
Paralegals may serve as “sounding boards” for these arguments, due to their familiarity with the case
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.32
Opinions of the Appellate Court The appellate panel (usually 3 judges)
will take the matter under advisement They will study the briefs, discuss the
oral arguments and confer before voting One judge will be assigned to write the
opinion of the court Concurring opinion – agrees with the
outcome, but not the reasoning of the majority
Dissenting opinion – disagrees with the outcome
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.33
Rulings of the Appellate Court Affirm – determines no error occurred,
and the lower court decision stands Reverse – rarely used, determines the
judgment was entered wrongly against the appellant, who should have won.
Remand – an error is found, but the case is sent back to the trial court to re-try the case with the error corrected to find out if the outcome will change
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.34
Highest Appellate Court Not all jurisdictions have a 3-tiered
system If there is a higher court (e.g., U.S.
Supreme Court), they may grant the right to hear an appeal from the intermediate court decision
Permissive, not an appeal of right Petition for a hearing May be granted (such as the federal
grant of certiorari)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.35
Alternate Dispute Resolution Settlement is possible even after a
judgment has been entered Avoid post-trial motions & delays Avoid the time & expense of appeal
The losing party may offer an immediate payment, or better-structured payment, of a smaller amount than the judgment