134
Civil Procedure II
Civil Procedure II
2
GWU School of Law
Professor Schaffner
Spring 2013
3
4
Table of ContentsDISCOVERY.........................................................................................6
Discovery Devices..............................................................................8Initial Disclosures..........................................................................8Depositions.....................................................................................9Interrogatories.............................................................................11Production of Documents and Things..........................................13Medical Examination....................................................................13Request for Admission.................................................................14
Relevance........................................................................................15United Oil v. Parts Assoc., Inc......................................................15Hill v. Motel..................................................................................16
Electronic Materials.......................................................................17Zubulake v. UBS Warburg LLC.....................................................17
Privilege..........................................................................................18Work Product..................................................................................19
Hickman v. Taylor........................................................................19Experts............................................................................................20
Ager v. Jane Stormont Hospital....................................................21Timing & Sanctions.........................................................................22
Washington Physicians v. Fisons Corp.........................................24ADJUDICATION.................................................................................26
Constitutional Right to a Jury.........................................................26Chauffeurs Local v. Terry.............................................................27
Law vs. Equity.................................................................................28Ross v. Bernhard..........................................................................28Dairy Queen v. Wood....................................................................29Herbert Markman Positek, Inc. v. Westview Instruments, Inc....29Tull v. United States.....................................................................30
5
Feltner v. Columbia Pictures Television......................................31Complications of Merger................................................................32
Beacon Theatres, Inc. v. Westover...............................................32Jury Selection & Size.......................................................................33
J.E.B. v. Alabama..........................................................................33Summary Judgment........................................................................35
Anderson v. Liberty Lobby............................................................37Coble v. City of White House........................................................37
Judgment as a Matter of Law..........................................................38Lavender v. Kurn..........................................................................39
New Trial.........................................................................................40Dadurian v. Lloyd's of London......................................................41
Other Controlling Techniques........................................................42WHAT LAW APPLIES.........................................................................44
The Erie Doctrine............................................................................44Erie v. Tompkins...........................................................................47
The Rules Enabling Act Distinguished...........................................49Hanna v. Plumer...........................................................................49
Applying the REA and RDA.............................................................50Burlington Northern Railroad Co. v. Woods................................51Stewart Organization, Inc. v. Ricoh Corporation.........................52
Latest Developments.......................................................................53Gaspirini v. Center of Humanities................................................53Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.....................54
Determining Content of State Law.................................................55Deweerth v. Baldinger..................................................................56
Federal Law.....................................................................................56PRECLUSION DOCTRINES................................................................58
Claim Preclusion.............................................................................58Scope............................................................................................58
6
Parties..........................................................................................60Valid, Final & On the Merits........................................................61Exceptions....................................................................................62
Issue Preclusion..............................................................................62Same, Litigated, Determined.......................................................63Essential.......................................................................................65Against Whom..............................................................................66By Whom......................................................................................67Non-Mutuality..............................................................................69Exceptions & Federalism..............................................................71
APPEAL..............................................................................................74Jurisdiction.....................................................................................75
28 USC §1291...............................................................................75Collateral Order Rule...................................................................75
Exceptions to Final Judgment.........................................................77La Buy v. Howes Leather Company..............................................79
Discovery Orders & Mechanics.......................................................79Scope of Review..............................................................................79
Anderson v. Bessemer..................................................................80
7
I. DISCOVERYo Introduction and Integration
Definition The formal mechanism provided in the rules of civil
procedure for parties to obtain information pertaining to one's case
Fairly liberal set of rules. The quantity and timing of information sought is left
almost entirely to the parties with judicial intervention only when there is a problem
Purposes of Discovery Permit the preservation of evidence that might otherwise
be lost before trial Provide mechanisms for narrowing the issues in dispute Allow the parties to gather information about the other
side's case Types of information that can be discovered
Evidence the other side has in support of its claims or defenses
Eliminates the element of surprise Upside: parties can adequately prepare
arguments and the case quits being about who can think on their feet -> more likely to reach a just result/settle
Settlements In theory each party should be willing to
settle for the expected value of the claim Expected value of the claim = (possible
value * the probability of getting the whole value) - the costs of litigation
Downside: it’s easier to commit perjury when you know ahead of time what you need to lie about
Information that may strengthen one's own case Often the strongest evidence of fault is in the hands of
the wrongdoer Some people believe it is wrong to require persons to
supply evidence that may be used against them, discover "is designed to enable the party to prove facts they already know, not to find out facts they don't"
Modern Discovery Step 1 – General Discovery
26(b)(1) – Scope of Discovery
8
Parties may obtain discovery regarding any non-privileged matter this is relevant to any party’s claim or defense—including the existence….of any documents or other tangible things and that the identity and location of persons who know of any discoverable manner. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence
Material must be non-privileged Also non-testifying expert witnesses (see
Experts below) Requested information must be “relevant to
party’s claim or defense” - anything relevant to the issues framed by the pleadings
attorneys may be more likely to plead multiple theories to discover more information
Includes documents, anything that can be used as evidence/witnesses
Discovery doesn’t have to be admissible evidence!
Hearsay questions are permitted at a deposition as a way to find out more information
Step 2 –Objections from respondents Rule 26(b)(2)(C) LIMITS the scope of discovery Court must limit frequency or extent of discovery
otherwise allowed if it determines that: (i) Discovery sought is unreasonably
cumulative, or can be obtained from another more convenient, less burdensome, or less expensive source;
(ii) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
i.e., party waited until end of discovery period to request a large amount of information
(iii) Burden or expense of the proposed discovery outweighs its likely benefit, considering
(1) needs of the case, (2) amount in controversy,
9
(3) parties' resources, (4) importance of the issues at stake in
the action, (5) importance of the discovery in
resolving the issues. (b)(3)-(5) – Other reasons for avoiding the discovery
process Rule 37 – Motion to Compel Discovery when the
other party won’t comply Step 3 – Protective Orders issued by the court
(26(c)) Court can structure discovery to protect a party from having to disclose something
(1) Party receiving discovery request may seek a protective order from the court to protect discovery. 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 one or more of the following:
(a) Forbidding disclosure or discovery (b) Specifying terms, including time/place for
disclosure/discovery (c) Court may prescribe different discovery
methods (d) Court may forbid inquiry in certain matters
or limit scope to certain matters (e) Designate who may be present when
discovery is conducted (f) Require deposition be sealed and opened
only upon court order (g) Require trade secret or other confidential
information not be revealed or only revealed in a specific way
(h) Require parties to simultaneously file info in sealed envelopes, to be opened as the court directs
Other options: In camera review, redact files, sequence discovery (discovery of least controversial stuff first)
(2) If motion for protective order is denied, court may order that person to permit/provide discovery
A. Discovery Devices
1. Initial Disclosures 26(a) – Required Disclosures
Initial Disclosures
10
Disclosure of Expert Testimony [Experts] Pretrial Disclosures [Managing a District Court
Caseload] Form of Disclosures [Managing a District Court
Caseload] 26(a)(1) – Required Initial Disclosures
Party must disclose any information that it: o may use in support of its claims or
defenses; o unless the information would be used
solely for impeachment; o Also computation of damages; o Insurance agreement
Need to use other tools of discovery in order to obtain information unfavorable to responding party
(A) Party must, without awaiting discovery request, provide to the other parties:
o 1. Name, address, phone (if known) of anyone likely to have discoverable information that disclosing party may use to support its claims/defenses, unless the use would be solely for impeachment
o 2. Copy, or description by category and location – of all documents, ESI, and tangible thinks that disclosing party has in its possession or control and may use to support its claims/defenses, unless the use would be solely for impeachment
o 3. Computation of each category of damages claimed by the disclosing party – as well as documents on which each computation is based, unless its privileged or protected from disclosure
o 4. Insurance agreement under which an insurer may be liable to satisfy all/part of possible judgment
Must be given up front because it can’t be asked for at trial (too prejudicial, grounds for mistrial)
(B) Proceedings exempt from initial disclosure (very specific, i.e. petition for habeas corpus, forfeiture action in rem arising from federal statute)
(C) Time for Initial Disclosures – In General
11
o A party must make the initial disclosures at or within 14 days after the parties Rule 26(f) conference unless court decides otherwise or a party objects
(D) Time for Initial Disclosure – For Parties Served/Joined Late
o Party joined or served AFTER the 26(f) conference must make the initial disclosures within 30 days of being served or joined, unless court rules otherwise
(E) Basis for Initial Disclosure; Unacceptable Excuses
o Party must make its initial disclosures based on information then reasonable available to it.
Party is not excused from making disclosures because it hasn’t fully investigated or because it challenges sufficiency/absence of other party’s disclosures (just because they didn’t do it doesn’t mean you can’t!)
2. Depositions Testimony taken under oath in front of a notary (no judge)
Other side can always be present for cross-examination. They may also participate through written questions delivered to the noticing party and asked by an officer (30(c)(3))
Usually the last discovery method used, it’s most expensive
Previews witness testimony, it’s on the record, lawyer can ask follow-ups
Can be used in two ways:o Discovery deposition - open ended questions
asked to pin down as much information as possible from witness that may be offered at trial)
o Evidence Deposition - if witness is unavailable to testify at trial, this will be used in place of their testimony
Who – Anyone with discoverable information can be deposed (30(a)(1))
o If deponent is party – Counsel initiates deposition by sending a notice of the deposition to ALL parties in the action, stating time/place (30(b)(1))
12
o If deponent is NOT a party – must be subpoenaed under Rule 45 as well
If they want non-party deponent to produce documents, they must serve a notice of that (subpoena duces tecum) with notice of deposition
o Some depositions require leave of court: If parties have not stipulated to the deposition AND (i) deposition would result in more than 10 per side OR (ii) deponent has already been deposed in this case; OR (iii) party seeks to take deposition before time specified in Rule 26(d) (unless party certifies that deponent will be outside US or unavailable after that that time)
Or Deponent is in jailo If a corporation is noticed, the named
organization must designated one or more officers, directors, etc. who can testify on its behalf
Recordingo Party who notices the deposition must state in
the notice the method for recording the testimony. Usually audio, audiovisual, stenographic. Noticing party bears recording costs
o Any party can specify another method of recording, with them bearing the cost
By Whomo Unless parties stipulate otherwise, a
deposition must be conducted before an officer appointed or designated under Rule 28.
o Officer must begin with an on the record statement including his name, business address, date/time/place of deposition, deponent’s name, administration of oath to deponent, identify of all people present
Objections o Noted on the record, but examination still
proceeds. Testimony is taken subject to an objection
13
Person may instruct deponent not to answer only when necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under 30(d)(3)
Duration – Deposition limited to 1 day of 7 hours. Court must allow for additional time if needed
o 30(a)(2)(A)(i) imposes a presumptive limit of 10 per side but that can be altered
Sanctionso Court may impose sanctions on any person
who impedes, delays or frustrations the fair examination of a deponent
Motion to Terminate or Limito Deponent or party may move to terminate or
limit deposition on ground that it is being conducted in bad faith or manner that unreasonably annoys/embarrasses/oppresses deponent or party. Motion may be filed in court where action is pending/deposition is taking place. If objecting party demands, deposition may be suspended for time necessary to obtain order. 30(d)(3)(A)
Court may order that deposition be terminated or limit its scope and manner as provided in 26(c) (protective orders). 30(d)(3)(C).
Failing to Attend or Serve; Expenseso A party who, expecting a deposition to be
taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if noticing party failed to attend or serve a subpoena on a nonparty deponent who didn’t attend
31. Deposition by Written Testimony Party may serve on the other parties a set of
questions that will be asked to a witness. Court officer then swears in the witness and asked the questions.
o Advantage- lawyer need not attendo Disadvantage- witness is likely to know in
advance the questions that will be asked; no opportunity for follow-up
32. Using Depositions in Court Proceedings For any purpose if deponent is an adverse party
14
Can be used to impeach or contradict testimony given by deponent as witness
Used for unavailable witnesses Gives rules for waiver of objections [See 32(d)(1)-
(4)] 45. Subpoena
If person to be deposed is NOT a party, she must be subpoenaed by deposition under Rule 45.
Can object under 45(c)(2)(B) if want to resist other side files motion to compel
May be held in contempt of court if does not appear. 45(e)
3. Interrogatories Questions that you may send to other parties in the case
(not to non-parties like depositions) answered in writing and under oath
This is a reason for making someone a party to a case (i.e., sue both bus company and bus driver (even though he has no $$), then dismiss bus driver after discovery)
Typically the first method of discover used because it’s a cheap way of getting background information from other parties (names/addresses, location of documents, etc.)
But counsel is usually stringy in giving answers Less expensive and more effective than depositions for
acquiring detailed, objective information Parties must provide facts that are reasonable
available to them, even if this requires reviewing files of documents
Who 33(b)(1) Interrogatories must be answered by the party to
whom they are directed or, if corporation, by an officer or agent
o 33(b)(3) - Each interrogatory must, to the extent it’s not objected to, by answered separately and fully in writing under oath
o 33(b)(5) – Person who makes them must sign them
o Answers are typically drafted by a lawyer and therefore may not be effective for ascertaining testimony or credibility of witnesses
When 33(b)(2) Within 30 days after being served. Shorter/longer
time can be stipulated by court
15
Objections 33(b)(4) Grounds for objecting to an interrogatory must be
stated with specificity. Any ground not stated is waived unless court excuses it
o 33(b)(5) Attorney who raises them must sign them
Limits 33(a)(1) No more than 25 interrogatories, including all
discrete subparts. Leave to serve additional may be granted consistent with 26(b)(2)
Scope 33(a)(2) Interrogatory must relate to any matter that may be
inquired into under 26(b). It’s not objectionably merely because it asks for a contention that relates to fact or application of law to fact, but court may order that interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time
o Therefore, contention interrogatories are permissible but don’t get you very far.
Used to force opponent to specify the grounds of the general claims raised in complaint/answer
i.e. can ask plaintiff who generally alleged negligence in what ways the defendant’s conduct was negligent
Option to Produce Business Records 33(d) If answer to interrogatory may be determined by
looking at a party’s business records (including ESI), and if the burden of deriving the answer will be substantially the same for either party, the responding party may answer by
o Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
o Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies
4. Production of Documents and Things
16
Party may serve on any other party a request within the scope of 26(b) to produce and permit requesting party to inspect, copy, test any writings, ESI, tangible things, or let them inspect the designated object, etc.
Basically it authorizes a party to require an opponent to produce documents/things in their control for inspection/copying
This is typically done early on (after interrogatories) to give you stuff that you can ask witnesses about during depositions
Parties resist requests for production of documents by construing them narrowly, so requesting lawyers draft them VERY broadly
Procedure 34(b)(1) Request must describe with “reasonable
particularity” reach item or category to be inspected, state a reasonable time/place/manner for inspection, may specify form in which ESI is to produced
Responses and Objections 34(b)(2) Must respond in writing within 30 days – can be
amended via Rule 29 Must respond to each item (allow inspection or state
objection) As with interrogatories, responding party can simply
offer to open their records as they’re kept in ordinary course of business for examination by requesting party 0 this imposes a big burden on requesting burden to cull through all the records
o At minimum, they should indicate how they’re organized, which records respond to which requests, and other info necessary to locate requested items
ESI (34(b)(2)(E)) – See ESI Below Party must produce documents as they are kept in
the usual course of business or must organize/label them to correspond to categories in the request
If request does not specify form for producing ESI, party must produce it in form usually maintained
A party need not produce the same ESI in more than one form
Nonparties (34(c) Non-party may be compelled to produce via
subpoena (Rule 45)
5. Medical Examination
17
FRCP 35 Requires Court Order, where party whose mental
or physical condition is in controversy Prove two things:
35(a)(1) Reason for exam is in controversy (relates to issue in the case)
Materiality and relevance of the issue – Law, Facts, Conclusion
In almost all cases, the fact that a plaintiff is claiming substantial injuries will justify an order for the exam
Did the trucker see the red light? Vision of truck driver is important here
35(a)(2) Must be for “good cause” Weigh need to get information from
other parties/sources against burden on party (intrusiveness)
Party who requested the examination must, on request, deliver to the requester a copy of the examiner’s report which should include the examiner’s findings, diagnoses, conclusions, test results
After delivering reports, party who moved for examination may request from the party against whom the examination order was issued like reports of all earlier or later exams of the same condition
By requesting and obtaining examiner’s report, or by deposing the examiner, party examined waives any privilege it may have concerning testimony about all examinations of the same condition
6. Request for Admission Request for Admission isn’t really a discovery device, but
a way of narrowing the scope of trial by eliminating uncontested issues
Scope 36(a)(1) Party may serve a written request on another party
to admit the truth of any matters within the scope of 26(b)(1) relating to facts, application of law to facts and the genuineness of any described documents
Time to Respond 36(a)(3) A matter is admitted, unless within 30 days after
being served, party serves on requesting party a written answer or objection
18
Always respond! If you fail to object or deny, they’re considered admitted
Answer 36(a)(4) If a matter is not admitted, answer must specifically
deny it or state why they can’t truthfully admit/deny it. They can assert lack of knowledge as a reason for failing to admit/deny, but only if they’re made reasonable inquiry and information that it knows/can readily obtain is insufficient to enable it to deny
Requests for admissions that are admitted are binding on party at trial
Vs. interrogatories, which are admissible but NOT binding
Effect of an Admission; Withdrawing or Amending it 36(b)
A matter admitted under this rule is established unless the court permits the admission to be withdrawn or amended, if it would promote the presentation of the merits of the action and the court is not persuaded that it would prejudice the requesting party
Admission under this rule can’t be used for any other purpose or against the party in another proceeding – No Preclusive Effect on other cases
So they can admit to something, amend it, then if withdrawal is granted, the opponent has to litigate an issue her opponent and previously withdrawn from contention
B. Relevance Something is relevant if it has the tendency to make the
existence of the fact more or less probable The scope of relevance is relevant to claim or defense of
the party A party can gain a wider scope to include subject matter
of the case but only if they show good cause
1. United Oil v. Parts Assoc., Inc. Discovery of other litigation is allowed where it
involves (1) the same/similar claims arising from, or (2) the same/similar products at issue
FACTS:
19
o United Oil is suing R&H for indemnity/contribution out of payment they made for causing someone’s liver damage. R&H made the dyes that caused the damage – their theory is based on failure to warn, that R&H knew risk and didn’t warn. R&H didn’t respond to interrogatories thinking they were broad
ISSUE: o How broad is discovery? Can United get
information on every claim for every kind of damage to every part of the body?
United Oil wants to find out about previous lawsuits involving the dyes (used in any amount) as well as for any body part (i.e., if it caused heart disease)
HELD: o The Court grants most of United Oil’s motion to
compel answers to the interrogatories – they can get discovery involving any product that contains the chemical, but only related to liver disease
Discovery of other litigation is allowed where it involves (1) the same/similar claims arising from (2) the same/similar products at issue
Similar claims (related to liver disease), related to failure to warn (of the specific dyes)
The “relevance” for discovery is viewed more liberally than the “relevance” for evidence
The burden is on party resisting discovery (R&H) to explain their objections because of the liberal construction of the rules
33(d) Interrogatories may be answered by providing business records.
However, Parts cannot answer the interrogatories by solely providing United with boxes of documents.
20
o Fundamental question is whether the burden is equal on both sides. Here, the burden was not equal- Parts was more familiar with documents, much easier for them to answer the questions themselves. This was not a proper use of 33(d)
2. Hill v. Motel Discovery will only be broadened [beyond that
which focuses on the actual claims and defenses of any party] when demanded by the reasonable needs of the action.
FACTS The employee, an area manager, was discharged by
his supervisor. Other corporate officers allegedly participated in the decision. The employee claimed discriminatory treatment only, and did not claim discriminatory impact.
He sought discovery of personnel files of all area managers, claiming they could contain evidence of a policy or practice of age discrimination.
ISSUE Was the employee's request for discovery overbroad?
HELD The court found the request was overbroad
Because the evidence of a policy or practice would not support the employee's claim of discriminatory treatment claim that involved a discrete dispute over the employers' motives to discharge that employee in particular.
The court granted the employee's motion to compel in part, and denied it in part. The court ordered discovery of personnel files of certain area managers and corporate officers, as well as certain age discrimination charges against the employer.
Any area managers in the region are discoverable because it is relevant to the claim
Two types of discrimination claims: discriminatory treatment (motive) vs. discriminatory impact (no motive)
21
They filed under discriminatory treatment which is treated more narrowly by courts
Need to show good cause to prevent fishing for evidence that could raise new claims because Rule 26(b)(1) is explicitly designed against this
C. Electronic Materialso 26(A)(1)(A)(ii) – ESI must be disclosed as part of required
initial disclosures o Rule 26(b)(2)(B) provides a process for addressing disputes
over ESI Party from whom discovery is sought must show
information is not reasonably accessible because of undue burden or cost
court still may order discovery from such sources if requesting party shows good cause
Court can also specify conditions (like cost) for the discovery
Since there’s so much contained on backup tapes and the like, after producing ESI, the producing party may discover that some privileged material was released and seek its return
26(b)(5)(B) – notify party of “inadvertent disclosure”. Receiving party must destroy, return, or hold
documents pending adjudication of privilege issue by court
o 37(e) – Sanctions may NOT be imposed for destruction of ESI through “routine good faith operation of an electronic information system”
But it doesn’t apply if party had duty to STOP automatic deletion of ESI relevant to litigation
Parties have a duty to ensure preservation (duty to supplement under 26(e))
Obligation comes into effect when one can reasonable anticipate that dispute may lead to litigation; attorneys must tell client to preserve evidence
1. Zubulake v. UBS Warburg LLC
22
A court will weigh the cost of accessing the electronic data using a comprehensive set of factors, and will determine whether the data should be available for discovery, and which party to place the cost of the discovery.
FACTSo Suing former employer for gender discrimination.
Charges employer with defoliation- destruction of evidence.
ISSUEo Sanctions for failure to produce documents in a
timely fashion, or produce them at all? HELD
o Counsel failed to properly oversee UBS by not communicating adequately with an employee about archiving – they didn’t make sure the relevant data was maintained
Also, UBS didn’t follow the instructions the lawyers did give
o Sanctions are imposed and adverse inference instruction is given to the jury
UBS (1) had an obligation to preserve the records, (2) the records were destroyed with culpable state of mind and (3) the destroyed evidence was relevant to the party’s claim (this is inferred from a willful state of mind)
o In house council should have: Issued a litigation hold from outset of
litigation, periodically reissuing it Spoken directly with key players Instructed all employees to produce
electronic copies of their relevant active files
Ensured all backup media is identified and stored safely
D. Privilegeo Rule 26(b)(1) permits discovery of “non-privileged” material
“privileged”- narrow category of material delineated under the rules of evidence
Just because information is personal, confidential, or intended to be secret doesn’t necessarily make it privileged
o Rule 26(b)(5)
23
(A) When party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-prep material, party must
(i) expressly make the claim (ii) describe nature of
documents/communications/things not produced so the other party can assess the claim
(B) If material is inadvertently disclosed (i.e. overlooked, embedded data), disclosing party may notify the other party of the claim/basis for it. After notification, other party must: return/destroy information
Attorney-client privilege: This privilege applies if:(1)The asserted holder of the privilege is, or sought to
become, a cliento Doesn’t mean that the client had to have paid the
attorney moneyo Cocktail party chatter is not privilege, unless clear that
he wants to become a client(2)The person to whom the communication was made
a. Is a member of the bar of a court, or his subordinate and
Can communicate it to a paralegal who will transfer the information to the lawyer
b. In connection with this communication is acting as a lawyer
i.e. general counsel of an organization might have two roles, provide both legal and business/organizational advice; if info was communicated for the purpose of obtaining business advice, then information is not privileged
(3)The communication relates to a fact of which the attorney was informed
a. By his clientb. Without the presence of strangersc. For the purpose of securing primarily either
i. An opinion on law orii. Legal servicesiii. Or assistance in some legal proceeding AND
NOTd. For the purpose of committing a crime or tort, and
Client cannot find out the best way to rob a bank and get the least penalty
(4)The privilege has been
24
a. Claimed, andb. Not waived, by the client
Must be asserted by the client. Can be claimed by the attorney, but it’s the client’s privilege- client is the one who chooses what is disclosed.
o Scope of attorney-client privilege when client is corporation
Privilege protects all communications between employees and lawyer, not just communications between managers and the lawyer. Upjohn Co. v. United State
E. Work Product Rule 26(b)(3)= WORK PRODUCT RULE
o Work Product (A) Party cannot discover documents and
tangible things prepared in anticipation of litigation or for trial by another party’s lawyer. Unless:
(i) they are otherwise discoverable under Rule 26(b)(1)
(ii) party shows substantial need for the materials to prepare their case (relevant to the issue) AND cannot, without undue hardship, obtain their substantial equivalent by other means
(3) Discover always barred for opposing counsel’s thought process in preparing a case (opinion work product)
NOTE: “in anticipation of legislation”- does not require that legislation has commenced
1. Hickman v. Taylor The work product of an attorney, particularly
opposing counsel's thoughts and impressions of witnesses or information relating to the claims, is not discoverable.
FACTS
25
Taylor’s boat sank. They hired Fortenbaugh to represent them. He interviewed survivors and took statements in preparation for possible litigation. The one party who didn’t settle filed interrogatories asking whether any statement of the survivors had been taken and for info from those statements. Fortenbaugh says he took statements but won’t give what was said, saying it was an indirect way to obtain his private files
ISSUE Can Fortenbaugh's work be accessed by opposing
council? HELD
Establishes common law rule on work product (before 26(b)(3)). Apply protection to anything that is prepared in anticipation of litigation or trail. Can overcome this privilege (qualified) through showing of A) need/relevance and B) difficult to obtain same information BUT court will still protect mental impressions/opinions of the lawyer.
Work product material should be protected because
If lawyer knew that material would be discoverable, he would not write anything down
Fundamentally unfair to reward lawyer free-riding off opponent’s work
Want to protect lawyer’s own theory of the case
Lawyers would become witnesses at trial Demoralizing effect Inefficiency, unfairness and sharp practices
F. Experts Two kinds of experts: consultants who assist in preparation
and those who testify at trialo Parties must disclose experts to be used, accompanied by
written report. Rule 26(a)(2). Once report has been turned over, expert can be deposed. Rule 26(b)(4)(A).
o Rule 26(a)(2) Disclosure of Expert Testimony (A) Party must disclose to other parties the identity of
witnesses it may use at trial to present evidence under Fed.R.Evid. 702,703,705
(B) Written report- Disclosure must be accompanied by written report- prepared and signed by expert witness.
26
Report must contain (i)-(vi): complete statement of all opinions the witness will express and basis for them; data/information considered by witness in forming opinions; exhibits that will be used to summarize/support opinions; qualifications and list of publications authored in previous 10 years; list of all cases in which, during previous 4 years, witness testified as expert at trial/depo; statement of compensation to be paid for study and testimony
(ii)- “data or other information considered by the witness in forming the opinions”- does this mean that if attorney gives testifying expert material that would otherwise be work-product, the expert must disclose the previously privileged material?
Majority of courts hold that all material reviewed by a testifying expert is discoverable- thereby destroying work-product privilege.
(C) Party must make these disclosures at time ordered by court. In absence of court order, disclosures must be made 90 days before trial (or 30 days after other party’s disclosure if expert’s sole use is to contradict/rebut evidence on the same subject matter identified by the other party in Rule 26(a)(2)(B))
(D) Must supplement these disclosures when required to under 26(e)
o Rule 26(b)(4) Trial preparation: Experts (A) Testifying expert witnesses may be deposed.
Deposition must occur after Rule 26(a)(2)(B) report is provided.
(B) Expert employed only for trial preparation- not subject to interrogatories or deposition if retained/employed in anticipation of litigation or to prepare for trail, but who is not going to be called as witness at trial. Unless:
(i) as provided in Rule 35(b)- examiner’s report (ii) on showing of exceptional circumstances
under which it is impracticable for a party to obtain facts or opinions on the same subject by other means
27
NOTE: potential for abuse- retain experts who have controversial evidence because their information is not discoverable
(C) Payment- party seeking discovery must (i) pay expert reasonable fee for time spent in responding to discovery under (A) or (B) and (ii) for discovery under (B) also pay the other party a fair portion of the fees and expenses it incurred in obtaining the expert’s facts and opinions
NOTE: o Regarding testifying experts, considerable tension
between rules that product work product and rules that require disclosure of expert’s work/communication with lawyer.
Litigants ran into problems because needed/wanted to tell experts information, but this information would then become discoverable.
o Lawyers came up with idea to hire non-testifying expert who can communicate with expert and talk about how the testimony should be prepared
Non-testifying experts can also educate counsel on procedures, prepare witnesses to testify, develop theories of recovery, develop exhibits
These people are not subject to disclosure aside from compelling need.
Way to get around discovery process, yet complicated result.
o Proposed new rule provides that Rule 26(b)(3) protects drafts of experts from disclosure.
1. Ager v. Jane Stormont Hospital Under FRCP 26, discovery of experts who were
informally consulted but will not be testifying at trial is not allowed.
FACTS Defendant wants the identity of experts that P
consulted who will not testify at trial ISSUE
Whether a party may routinely discover the name of retained or especially employed consultants who won’t testify at trial, pursuant to 26(b)(4)(D) absent a showing of exceptional circumstances?
HELD 1st : Remand to discover if experts were informally
consulted, then discovery is barred.
28
2nd: if expert was retained in anticipation of legislation, but not expected to testify, unless defense can show an extraordinary need, cannot receive this information. Extraordinary circumstances- must prove that information (i.e. just names and addresses) cannot be obtained any other way.
Divides experts into: (1) Testifying experts (2) Formally contracted but not
testifying- can only get information if examining doctor or showing of exception circumstances.
(3) Informally consulted in prep for trial, but not retained - never can get information about these experts, not retained for specific case
No provision in Rule 26(b)(4) deals with these types of witnesses
(4) Experts whose information was not acquired in trial prep. Includes regular employees of a party not specially employed on the case or experts who were actors/viewers of occurrences that gave raise to suit. These people treated like other witnesses, no special protection.
Status of each expert must be determined on an ad hoc basis, looking at:
(1) Manner in which consultation was initiated
(2) Nature, type, extent of information provided to determined by expert
(3) Duration/intensity of the relationship
(4) Terms of consultation
G. Timing & Sanctionso Rule 37 – First Resort; Rule 26 – for Serious Discovery
Problemso Rule 37 – Failure to Make Disclosures or to Cooperate;
Sanctions (a) Motion for an Order Compelling Disclosure or
Discovery
29
If other party has prior notice, a party may move for an order compelling disclosure or discovery. It must include that movant has in good faith conferred/attempted to confer with other party and it hasn’t worked
For party – motion in court where action is pending; For non-party, do it in court will discovery will be taken
Must ask other party before invoking the court!
Motions To Compel Disclosure – If a party fails to
disclosure under 26(a), any other party may move to compel disclosure and for appropriate sanctions
To Compel a Discovery Response – Party seeking discovery may move for an order compelling answer, designation, production, inspection if:
Deponent (or Corporation) fails to answer a question in a deposition
Party fails to answer interrogatory Party fails to respond that inspection will
be permitted or fails to permit inspection [of document request under Rule 34]
When taking an oral deposition party asking a question may complete or adjourn the examination before moving for an order
Note: A motion to compel is NOT a prerequisite for sanctions.
For purposes of 37(a) Evasive or incomplete disclosure/answer/response must be treated as failure to disclose
After hearing both sides, judge can: Require party/deponent, the party or
attorney advising that conduct, or both to pay movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But not if:
Movant filed motion before attempting in good faith to obtain disclosure without court action, or
Opposing party’s nondisclosure was substantially justified, or
Other Circumstances
30
Deny motion and issue protective order, requiring movant or deponent who raised the issue to pay other side’s attorney’s fees
(b) Failure to Comply with Court Order If it’s where deposition is taken, failure may be
treated as contempt of court If it’s where action is pending, Court may: (i) order
the matters to be treated as admitted; (ii) prohibit the party from supporting or opposing designated claims or defenses; (iii) strike pleadings, stay or dismiss the action, or render a default judgment, or (iv) hold the delinquent party or witness in contempt (contempt may not be used be Rule 35 – order to submit to physical/mental exam). May also assess reasonable fees, including attorneys fees.
(c) Failure to Disclose Supplement Sanctions are available for failure to disclosure
under Rule 26(a), supplement under Rule 26(e), failure to admit under Rule 36. Party who fails to make required disclosures will not be permitted to use the info withheld as evidence at trial, at hearing, or on a motion, unless failure was harmless. 37(c).
(d) Party’s Failure to Attend Its Own Depositions, Serve Answers, Respond to Request
If party fails to attend own depositions or fails to answer any interrogatories, party may move for immediate sanctions (as opposed to motion to compel). Motion must certify that moving party made good faith attempt to obtain answer. Court may (i) order the matters to be treated as admitted; (ii) prohibit the party from supporting or opposing designated claims or defenses, (iii) strike pleadings, stay or dismiss the action, or render default judgment.
o Rule 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections
Discovery analogue of Rule 11 (which doesn’t apply to discovery process)
All disclosures under Rule 26(a)(1) or (a)(3) and every discovery request/response/object must be signed by at least one attorney or unrepresented party. By signed, certifies that to best of that person’s knowledge, information and belief formed after reasonable inquiry that:
With respect to disclosure, complete and correct at time it is made
31
With respect to discovery requests/responses/objections
o Request is consistent with rules and warranted by good faith
o Not for improper purpose, to cause delay, needless expense, harass Not unreasonable or unduly expensive
given the case and the importance of the issues at stake
o Sanctions can be imposed on lawyer or parties o Include elimination of claim or defense, pay
for attorneys fee
1. Washington Physicians v. Fisons Corp FRCP 26(g) requires attorney signing discovery
request to certify that he's read it and believes: (1) its consistent with discovery rules and
warranted by law or a good faith modification for law
(2) Not interposed for any improper purpose like to harass/delay
(3) Not unreasonable or unduly burdensome or expensive, given needs of case
o FACTS Family sued Fisons and Dr. for making/prescribing a
medicine that caused permanent brain damage to their daughter. Dr. cross-claims against Fisons
After family settles with Dr., they give him a document dated 4 years prior indicating Fisons was aware of the life-threatening capability of the drug (Smoking Gun #1).
After sanctions were denied and Fisons was told to produce documents, another smoking gun memo was discovered.
Both family and Dr. say the documents should have been discovered through interrogatories and request for production but were not turned over.
o ISSUE Did the trial court err in denying sanctions against
drug company for abuses during discovery o HELD
Remand for Sanctions Standard of review here is abuse of discretion –
the appellate court must be absolutely certain that the trial court got it wrong – lots of deference to lower court
32
Lower court decided that sanctions were not required because it used a subjective standard. (i.e. Fisons did not intentionally misfile documents, definition of “product” was unclear, conduct was consistent with customary and accepted litigation practices of bar, etc)
Trial court should have imposed a standard similar to 26(g) – Aimed at reducing delaying tactics, procedural harassment, and mounting legal costs. Rule requires attorney signing discovery request to certify that he’s read it and believes:
(1) its consistent with discovery rules and warranted by law or a good faith modification for law
(2) Not interposed for any improper purpose like to harass/delay
(3) Not unreasonable or unduly burdensome or expensive, given needs of case
Objective Standard! Here, Fisons gave misleading responses. They put the
damaging stuff about the drug in question in another file for a competing drug – but this was BS
They didn’t fully answer interrogatory and answer requests for production
Lawyer’s duty to place his client’s interest ahead of all others assumes lawyer will live with rules that govern the system
33
II. ADJUDICATIONA. Constitutional Right to a Jury
7th Amendment – “In suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court, than according to the rules of the common law”
o This has NOT been incorporated to the stateso Two parts:
Jury Clause – Right of a jury trial is preserved Preserved = historical test where court
determines if there was a right to a jury at the time of the 7th Amendment’s ratification in 1791
Re-examination Clause – no fact tried before jury shall be reviewed be a judge
Would a judge at Common Law have reviewed and corrected a jury verdict in 1791?
o Rule 38 - Right to a Jury Trial (a) includes unnecessary statement that right to
jury trial is given by 7th Amendment (b)(1): Must demand jury no later than 14 days
after the last pleading is served Demand can be in separate document, but
most parties include it in pleading. Can specify what issues you want tried by a jury
(c): Party mat specify the issues that it wishes to have tried by jury; otherwise, considered to have demanded jury on all issues at trial.
(d): Failure to request jury constitutes a waiver, and case is tried before judge.
Jury Clause o The distinction (between jury vs. no jury) boils down to
difference between courts of law and courts of equity The two were merged in the US in 1938 English distinction – Law courts allowed jury,
equity courts did not because it’s the king’s court doing justice
o When law and equity started merging in the US, you started getting difficulties:
34
(1) Congress creates new causes of action all the time. Many times they’ll specify a jury trial but with Civil Rights Act, it might not have been a good idea to have a jury trial, so courts had to determine if new causes of action (that didn’t exist in 1791) had right to a jury
(2) What happens when you have mixed claims for law and equity (damages/injunction)?
1. Chauffeurs Local v. Terry The nature of the action and the remedy sought are
of the type traditionally awarded by courts of law, then the 7th Amendment of the Constitution, entitles the moving party to a jury trial.
o FACTS There was a union agreement between McClean
Trucking and Terry (some members of union). When McClean changed their structure so some respondents were laid off, they field 2 grievances against McClean but the union declined to help them in one charge. They sue McLean (eventually dismissed) and that Union violated its duty of fair representation. They seek injunction and damages.
It’s a Fair Representation suit – Terry wants jury, Union says no. 4th Cir. says they get jury trial
o ISSUE Whether an employee who seeks back pay for a
union’s breach of fair representation has a right to trial by jury?
o RULE Juries for “suits at common law” – where legal (not
equitable) rights are at stake. They can’t bring their action against the employer unless they show union breached its duty of fair representation, so they have to prove two claims
To determine if an action will resolve legal rights:
(1) Compare statutory action to 18th century actions brought in English Courts
(2) Examine the remedy sought and determine whether it’s legal or equitable in nature
o HELD
35
Opinion of the Court, J. Marshall Respondents entitled to jury because this is a
legal action On Prong (1), Fair Representation was unknown
in 18th century England so we have to analogize it.
Union’s equitable analogy - Trust Beneficiary against a trustee for breach of fiduciary duty (equity in 1791)
Terry’s legal analogy – Attorney Malpractice Action
Duty of fair representation alone is like trust analogy (equitable), but the cause against employer is a breach of contract claim (legal), so the first test leaves with nothing
Prong (2), Remedy Sought Request for compensatory damages for
back pay/benefits = traditional legal remedy
Damages are equitable where they’re restitutionary. Back pay sought is not money wrongfully held by Union, but wages they would have received from McClean had Union processed employee’s grievances properly
Concurrence, J. Brennan Look to only the second (remedy sought) prong.
Get rid of comparison prong because the second prong is more dispositive, it’s not worth judge’s time to compare to 18th century
In the remedy test, Courts must still ask which remedies were traditionally available at law and which in equity
Concurrence, J. Stevens Duty of fair representation action – common-law
action against an attorney for malpractice (legal action)
He agrees with Terry’s argument on prong 1
Dissent, J. Kennedy When court decided fair representation action
was analogous to trust action (equitable), the inquiry should have ended and they should have said no jury
Stick to the historical test
36
B. Law vs. Equity Test for the Right to Jury Trial
o (1) Look for historical analogue (in 1791) that is closely similar to newly created cause of action. If court finds one, then follow historical analogue
NOTE – Congress can grant right to jury trial by statue
o (2) Ambiguous – Look to Nature of Remedy Money Damages = Court of Law = Jury Trial Injunction = Equity = No Jury
Rule 39 – Trial by Jury or by The Courto Division of authority between judge and jury. Court has
judicial discretion to try issues by jury even if not required by 7th A, including with consent or use of advisory jury
o Rule 39(a): When jury trial has been demanded, must be a jury trial unless parties file a stipulation to a jury trial or court, on motion or on its own, finds that there is no federal right to a jury trial on some or all of the issues.
1. Ross v. Bernhard Class actions are now recognized due to new
procedure and may have the right to a jury if their claim is traditionally legal. Nothing turns now upon the form of the action or the procedural devices by which the parties happen to come before the court
FACTS Shareholders of a corporation alleged that the
defendant breached its contract with the corporation
ISSUE Does the plaintiff have the right to a jury trial?
HELD Historically shareholder derivative suits are brought
in the court of equity, nonetheless the court upheld the right to a jury
Court held that the case had dual aspects (1) the stockholder's right to sue on behalf of the corporation and (2) the corporations claim against the third party
37
"Under the rules law and equity are procedurally combines; nothing turns now upon the form of the action or the procedural devices by which the parties happen to come before the court"
Because the court now recognizes the right to sue on behalf of the company, the 7th amendment question should be decided based on the underlying claim which was a breach of contract and a legal issue.
2. Dairy Queen v. Wood Equitable remedies are reserved for situation no
adequate legal remedy FACTS
Trademark-licensing agreement. P brought action for breach of contract, asking for injunctions and an accounting to determine the exact amount of money owed.
The claims were essentially equitable, but they were seeking a legal remedy
ISSUE Does the plaintiff have the right to a jury trial?
HELD1. Claims were essentially equitable, but SCOTUS said
that since the remedy was monetary, there should be a jury
Equitable remedies are reserved for situation no adequate legal remedy,
Therefore the plaintiff must be able to show that the "accounts between the parties" are of such a complicated nature that only a court of remedy could unravel them.
With the appointment of special masters whose job it is to assist juries in complicated legal issues, the burden is very high to show that a jury would be incapable of issuing a reasonable ruling.
2. The choice of terms ("accounting" rather than "damages" or "debt") used in the pleading should not preclude a right to jury.
3. Herbert Markman Positek, Inc. v. Westview Instruments, Inc.
38
In cases where there is no clear fact/law distinction under the historical test, the court may "as a matter of the sound administration of justice "make a decision based on which judicial actor is in the best position to decide the issue in question."
FACTS Court looked at functional considerations in
deciding that interpretation of a patent is a question for the judge, not the jury
ISSUE Is interpret a patent “claim" a matter of law or fact?
HELD In a case involving the interpretation of patent terms
the court held that in cases where there is no clear fact/law distinction under he historical test, the court may "as a matter of the sound administration of justice "make a decision based on which judicial actor is in the best position to decide the issue in question
The interpretation of patent terms is too complicated and difficult to expect juries to handle. It is unlike other areas requiring expert testimony has shown by the fact that congress created an exclusive appellate court on the federal circuit for patent cases
witnesses & “credibility”à experts witnesses and fact witnesses’ credibility determined by juries and court holds fact witnesses more important
judges in better position to be interpreting documents-à law is interpreting documents
about determining accuracy and who is in a better position to do that
Judges are to look at four sources for definitions in order of priority:
1. The written description accompanying the patent claims is most relevant;
2. The documentation of the history of the patent as it went through the application;
3. Standard dictionaries of English;4. Finally, if all else fails, expert
testimony from experts "skilled in the art" at issue.
39
Policy argument: uniformity important specifically to patents, concern that a zone of uncertainty would prevent people putting their ideas out there thus the uniformity in law in patent cases important to “promote invention” per the patent clause of the constitution
4. Tull v. United States A right to a jury does not necessarily include the
right to have the jury determine the amount of civil penalties (punitive damages)
o Facts: The United States (P) filed a civil suit against Tull (D)
for discharging fill material into wetlands in violation of the Clean Water Act. P sought over $22 million and injunctive relief. The district court denied Tull’s motion for a jury trial and entered judgment for P for $325,000. The court of appeals affirmed the denial of a jury trial and the Supreme Court granted cert.
o Issue: 1. What is the test for determining whether the
Seventh Amendment preserves the right to a jury trial on the merits?
2. For cases in which the Seventh Amendment preserves the right to a trial by jury, does the Seventh Amendment also mandate the right to a jury trial for the determination of civil penalties?
o HELD Opinion of the Court, J. Brennan
1. The Seventh Amendment preserves the right to a jury trial on the merits in actions that are analogous to suits at common law.
Under the common law, civil penalties could only be enforced in courts of law and the party therefore had the right to a trial by jury.
The Clear Water Act authorizes financial penalties for violations and therefore does not merely provide equitable relief via injunction.
P’s claims are analogous to common law actions for public nuisance and actions in debt and are therefore entitled to trial by jury.
40
If an equitable claim is joined with a legal claim, the right to a jury trial remains. The right to jury trial was improperly denied
2. No. For cases in which the Seventh Amendment mandates the right to a trial by jury, the Seventh Amendment does not mandate the right to a jury trial for the determination of civil penalties.
The Seventh Amendment is silent on the issue of whether a jury must determine both the liability and the amount of the remedy.
The jury’s role in the assessment of a remedy is not necessary to preserve the common law right of a trial by jury as the assessment of the civil penalty is not a fundamental part of a trial by jury.
The jury must determine liability and the trial judge may determine the amount of the penalty.
Concurring in part and Dissenting in part, J. Scalia
The amount of penalty is subject to jury determination. There is no precedent in a civil court for the finding of liability by a jury and the amount of the remedy by a judge.
5. Feltner v. Columbia Pictures Television “Overwhelming evidence shows the consistent
practice at common law was for juries to award damages," therefore, there is a right to have juries decide statutory damages
FACTS In 1991, Columbia Pictures Television, Inc.,
terminated agreements licensing several television series to three television stations owned by C. Elvin Feltner after the stations' royalty payments became delinquent.
41
Columbia sued Feltner after his stations continued to broadcast the programs for copyright infringement. After winning partial summary judgment as to liability on its copyright infringement claims, Columbia attempted to recover statutory damages under section 504(c) of the Copyright Act.
The District Court denied Feltner's request for a jury trial and awarded Columbia statutory damages following a bench trial. In affirming, the Court of Appeals held that neither section 504(c) nor the Seventh Amendment provides a right to a jury trial on statutory damages.
ISSUE Does section 504(c) of the Copyright Act or the
Seventh Amendment grant a right to a jury trial when a copyright owner elects to recover statutory damages?
HELD Opinion of the Court, J. Thomas
Yes. The Court held that the Seventh Amendment provides the right to a jury trial, which includes a right to a jury determination of the amount of statutory damages.
Applying a historical Seventh Amendment analysis, "there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff."
"As a result, if a party so demands, a jury must determine the actual amount of statutory damages under [section 504(c)] in order 'to preserve the substance of the common-law right of trial by jury'"
C. Complications of Merger In 1791 where you had overlapping case of law and equity,
equity court would handle it Even if whole case would have gone to judge in 1791,
today, where there are overlapping issues, we can implement principle of 7th Amendment by giving all purely legal issues and any overlapping issues to jury first. Then, have judge decide purely equitable issues (affirmed Beacon Theaters)
1. Beacon Theatres, Inc. v. Westover
42
Under the Federal Rules of Civil Procedure (FRCP), the same court may try both legal and equitable causes in the same action.
FACTS Fox sought declaratory judgment against Beacon,
who was "threatening" to file an antitrust suit (clearly equity remedies). Beacon counterclaimed asserting antitrust violation and treble damages (common law monetary remedies). Beacon demanded a jury trial.
ISSUE When the case involves issues of law and equity,
does a plaintiff have a right to a jury? HELD
No test utilizing traditional equity procedure could interfere with the right to have a jury determine all the factual issues associated with a legal claim.
When a trial involves questions that require answers by both judge and jury, the judge's answers should never include answers that the jury should give. Jury questions should be decided first if the two collide.
Presumption toward jury trial. Requires that the right to jury trial be measured
in light of modern procedural developments, especially reforms that make available a remedy at law that previously did not exist.
D. Jury Selection & Sizeo Rule 48 – Number of Jurors; Verdict
Jury must have 6-12 members initially, and each must participate in verdict unless excused under 47(c). Verdict must be unanimous and returned by jury of at least 6 members (unless stipulated otherwise).
o The Venire and Voir Dire Jurors come from master roll of prospective jurors which
come from voter registration lists, driver’s licenses, taxpayers, etc.
Jurors summoned are called the venire. Venire is widdled down through voir dire.
Purpose – To get information about prospective juror’s knowledge, bias, or opinions about the case
Judge usually conducts it. Lawyers give judge questions during the final pretrial conference and the judge omits jurors for cause
43
Based on voir dire, judge may strike juror for cause or lawyer can use a peremptory challenge
Cause – When Juror has close connection with parties/witnesses or has such fixed opinions
Peremptory challenges allow lawyers to strike jurors usually without need to state a reason
Judge has wide discretion as to scope of and questions in voir dire
o Peremptory Challenges 28 USC §1870 – Challenges
In civil case, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly
1. J.E.B. v. Alabama The Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution prohibits a party to use their peremptory challenges to remove jurors based on gender.
o FACTS State filed complaint for paternity and child support
against J.E.B. As it went to trial, venire has 12 males and 24 females.
State excused 3 for cause so 10 men were left. State used 9/10 peremptory challenges to remove male jurors; J.E.B. used 9/10 ousting females.
Jury was all women. J.E.B. objected to state’s peremptory challenges on ground that they were exercised against men on basis of gender, in violation of Equal Protection, arguing logic of Batson forbids gender discrimination
o ISSUE Whether Equal Protection Clause forbids intentional
discrimination on the basis of gender, as it does on race?
Does gender discrimination in jury selection substantially further state’s legitimate interest in achieving a fair and impartial trial
o HELD Opinion of the Court, J. Blackmun
Batson does extent to gender. You can’t use gender as a basis for peremptory challenges
44
However, you can strike based on characteristics disproportionally associated with one gender (i.e., military service) absent pretext
Court later applies this to private actors as well because they’re relying on the power of judge (state power) to remove the juror
Concurrence, J. O’Connor Agrees, but thinks the holding should be limited
to government’s use of gender-based strikes Dissent, J. Rehnquist
There are sufficient differences between race and gender discrimination such that Batson shouldn’t apply here
Under Equal Protection jurisprudence, race gets strict scrutiny; gender is a lower standard as race is a minority, gender is equal
Dissent, J. Scalia Since all groups are subject to peremptory
challenge, it’s hard to see how any group is denied equal protection
o NOTES Baton applies to American Indians, Italian Americans,
Hispanics Refused to cover exclusions based on age,
socioeconomic status, disability, obesity Split on religion – religious affiliation is
impermissible to strike, but religious belief/activity is allowable
E. Summary Judgment FRCP 56 -
o A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact
Genuine dispute - If evidence is such that a reasonable jury could return verdict for non-moving party
Material Fact - a fact that might affect the verdict in the suit
45
Motion o Moving party must show some basis that there is no issue
of material fact through submission of evidence, i.e. affidavits, testimony, interrogatories, documents properly supported and certified
Defendant has easier time for summary judgment because only has to show one element of the claim, whereas plaintiff has to show no genuine issue of material fact for every single element.
o Moving party must show no genuine issue of material fact; nonmoving party proves opposite, submit evidence to prove that jury is necessary, conflicting evidence
o Burden of production v. persuasion Burden of Production- which party has duty to supply
the evidence? Plaintiffs must shoulder this burden as to the
elements of a claim P must get past burden of production to
evade summary judgment for D Defendant has duty to put forward evidence re:
defenses, i.e. contributory negligence Burden of Persuasion/Proof – degree of certainty the
fact finder must have before it can find for one side In most states- P has this burden
However, depends on standard of proof. 95% of civil cases, standard is preponderance of the evidence (50%+1)
Some cases- certain facts must be shown by higher standard- clear and convincing evidence (66% likely)
Criminal cases- highest standard- proof beyond a reasonable doubt
Anderson- when burden of persuasion moves to higher standard, so does burden of production
Steps to handle a summary judgment motiono Is this a rule 56 movement?
Most Summary Judgment motions do NOT involve Rule 56 because they only involve a legal dispute. Therefore first ask if this is a Rule 56 issue or just a legal issue (i.e., claim preclusion); then discuss Rule 56 if the question is whether there is a genuine issue of material fact
1. Has moving party established its burden? A. Identify material fact
46
Materiality is determined by the substantive law – only disputes over facts that might affect outcome of the suit
If moving party wants to win SJ, they have to show that for every element, there is no genuine issue of material fact
If non-moving party wants to win SJ, they only have to prove one issue of material fact for one element of a claim
B. Demonstrate no genuine issue If evidence is such that a reasonable jury
could return verdict for non-moving party
Must do this through admissible evidence – Can use an affidavit; NO pure hearsay (Rules of Evidence come into play here)
2. Responding party A. Demonstrate genuine issue OR
Must do more than just point to complaint
B. Prove that issue is not material (i.e., they can win even if they lose on this issue)
Motion
o Moving party must show some basis that there is no issue of material fact through submission of evidence, i.e. affidavits, testimony, interrogatories, documents properly supported and certified
Defendant has easier time for summary judgment because only has to show one element of the claim, whereas plaintiff has to show no genuine issue of material fact for every single element.
o Moving party must show no genuine issue of material fact; nonmoving party proves opposite, submit evidence to prove that jury is necessary, conflicting evidence
o Burden of production v. persuasion Burden of Production- which party has duty to supply
the evidence? Plaintiffs must shoulder this burden as to the
elements of a claim P must get past burden of production to
evade summary judgment for D Defendant has duty to put forward evidence re:
defenses, i.e. contributory negligence
47
Burden of Persuasion/Proof – degree of certainty the fact finder must have before it can find for one side
In most states- P has this burden However, depends on standard of proof. 95%
of civil cases, standard is preponderance of the evidence (50%+1)
Some cases- certain facts must be shown by higher standard- clear and convincing evidence (66% likely)
Criminal cases- highest standard- proof beyond a reasonable doubt
Anderson- when burden of persuasion moves to higher standard, so does burden of production
1. Anderson v. Liberty Lobby The inquiry involved in ruling on a summary
judgment motion, requires the court to use the substantive standard of proof that would apply at the trial on its merits
o FACTS Anderson published two articles portraying Liberty as
neo-Nazi. They filed a libel action. Standard for libel is from NY Times v. Sullivan in which for a libel suit by public official, P must show D acted with actual malice, by clear and convincing evidence. Anderson movers for SJ saying Liberty are public figures and must prove their case by clear/convincing evidence
o FACTS Whether clear/convincing evidence requirement must
be considered by a court ruling on a SJ motion?o RULE
“Materiality” is determined by substantive law – only disputes over facts that might affect outcome
“Genuine” – If evidence is such that a reasonable jury could return verdict for nonmoving party
o HELD Opinion of the Court, J. White
During summary judgment, court must use standard of persuasion applicable at trial.
Judge is not making judgment herself: simply asking whether a reasonable jury, based on evidence, could find for the non-moving party.
48
Assuming that jury finds all credibility issues for non-moving party.
Clear/convincing standard of proof should be taken into account in ruling on SJ motions, but credibility determinations, weighting of evidence, drawing inferences are jury functions
The standard mirrors the standard for directed verdict – if reasonable minds could differ as to evidence, a verdict should not be directed. SJ and DV are substantially the same, just procedurally different
Dissent, J. Brennan How do your determine SJ on clear/convincing
standard f the judge is not weighing the evidence
At SJ all we should be worried about is if there is conflicting evidence
2. Coble v. City of White House There is a genuine issue of material fact if evidence
can be interpreted multiple ways and there are possible intervening factors. The court cannot dismiss a case if there is a genuine issue of material fact.
o FACTS Coble was pulled over for drunk driving, he was obstinate and
fought the officers until he was finally handcuffed. Coble claims that after being handcuffed the officers walked
him 7 or 8 steps on a broken leg and dropped him face first on the concrete, while he was screaming the whole time
The officer claims that he walked him 3 or 4 steps, then Coble said his leg was broken, and the officers sat him on the ground
The recording of the incident upholds the officer's account City of white house moved for summary judgment
o ISSUE Is there a genuine issue of material fact? (all legal issues are
reviewed de novo, meaning the appellate court doesn't have to defer to the lower court at all)
o HELD The recording could have been interpreted multiple ways and
there may be intervening factors that effect the recording. Therefore the court can not dismiss the case because there is
a genuine issue of material fact
F. Judgment as a Matter of Law Rule 50
49
o Judge must always consider the evidence in favor of the nonmoving party
o Judgment as a Matter of Law (a) Judgment as a Matter of Law (DV)
If a party has been fully heard on an issue during jury trial and court finds that a reasonably jury would not have a legally sufficient evidentiary basis to find for the party on that issue, court may:
Resolve the issue against the party; and Grant a motion for JMOL against the party on
a claim or defense A party may motion for JMOL after the other
party has presented their case and before the case is submitted to the jury.
Motion must specify judgment sought and the law/facts that entitle movant to judgment
Appellate standard of review is de novo Note :
Courts do not like to grant JMOL because it undermines the strength of the judgment to take the decision away from the jury
Judges frequently just allow the decision to go to the jury in the hope hat the jury will get it right
o Renewed Judgment as a Matter of Law (Judgment Notwithstanding the Verdict)
A JNOV is also known as a renewed motion for judgment as a matter of law
A JMOL is a request that the judge reverse the jury verdict because the verdict was clearly erroneous or against the clear weight of the evidence
A party can only file for a JNOV if they previously filed for a judgment as a matter of law the close of all the evidence as required under Rule 50(b).
Typically a defendant will move for a new trial and a JMOL because the new trial motion has an easier standard
1. Lavender v. Kurn An appellate court may not overturn a jury's finding
of fact cannot be overturned if there is ANY evidentiary basis for a verdict
o FACTS
50
Lavender (P) sued on behalf of Haney, who had died from head injuries suffered while working as a switch tender for the St Louis-San Francisco Railway and the Illinois Central Railroad, which was represented by Kurn (D). At trial, Lavender tried to prove that the cause of death was a protruding mail hook on a train that struck Haney on the head as the train passed. Haney would have had to have been standing in a particular place and the hook would have hit Haney 63.5 inches above the ground.
The defendant claimed that Haney had been murdered. Haney had been working at night and had opened the switch as the train approached but had not closed it after it passed. Haney was found dead face down near the track. He had been killed by a fast moving round small object. His personal belongings had not been taken.
The jury returned a verdict in favor of Lavender. The Missouri Supreme Court reversed on the grounds that it was mere speculation that Haney had been hit by the mail hook and the plaintiff appealed to the Supreme Court.
o ISSUE What showing is required in order to overturn a jury
verdict?o HELD
Opinion of the Court, J. Murphy A jury verdict may only be overturned if there is
a complete absence of probative facts to support the verdict.
The court held that if there is any evidentiary basis for a verdict, an appellate court may not overturn a jury verdict. A jury can disregard or disbelieve facts that may be inconsistent with its conclusion and it may speculate and make conjecture to reach a verdict if the facts are disputed. This evidence demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head.
51
The court held that the jury had made its inference and the respondents were not free to relitigate the factual dispute on appeal.
G. New Trial Rule 59
o If there is sufficient evidence that JMOL is inappropriate but the judge disagreed with the jury’s verdict, Rule 59 gives the judge the power to intervene by declaring a new trial
In doing so, the judge doesn’t substitute his view of the evidence; it will be left to a new jury
o Standard - If the verdict is against the great weight of the evidence, remedy is a new trial, not JMOL
In ruling on the new trial motion, the judge may consider the credibility of the witnesses
Unlike JMOL, where judge assumes truth of evidence for non-moving party
Rule 61 – Harmless Erroro A new trial may not be granted except for errors
in the trial which are serious enough that they affect the substantial rights of the parties. Unless the trial judge believes that the error might have made the case come out differently, she cannot grant a new trial motion
o Timing (59(b))– Motion for new trial must be filed no later than 28 days after the entry of judgment
Same time limit as for JMOL Unlike JMOL, Judge CAN grant New Trial motion sua
sponte (59(d))o Two grounds for new trial :
Errors in the trial process – improper admission/exclusion of evidence, jury instruction, etc.
Appellate Court reviews de novo Verdict is against the great weight of the
evidence Appellate Court reviews abuse of discretion
standard Very rarely does an appellate court overrule
a trial judge when he denies New Trial motion because they weren’t there to hear the evidence
o Conditional New Trial Motions
52
Judge can grant partial new trials in appropriate cases, like if damages are too excessive (contrary to weight of evidence)
The test is whether the size of the verdict “shocks the conscience”
Remittur – Amount of verdict is excessive. The District Court can offer P the option of accepting a lesser award or a new trial
1. Dadurian v. Lloyd's of London If the jury's verdict is against weight of the
evidence, then the case should be remanded for new trial.
o FACTS Dadurian had some jewelry insured by Lloyd's. He
filed a claim that the jewelry had been stolen, but Lloyd's refused to pay.
Lloyd's argued that the claim was fraudulent and that Dadurian was lying.
Dadurian claimed he'd bought the very expensive jewelry in cash and had no receipts. The person he'd bought the jewelry from (Howe) could not show evidence that he'd ever had that jewelry in his inventory.
Dadurian only had $3k per year in income, so it was quite suspicious that he owned $267k worth of jewelry.
The jury in the Trial Court found for Dadurian and ordered Lloyd's to pay $267k.
Lloyd's made a motion for a judgment notwithstanding the verdict (JNOV). The Trial Court denied the motion. Lloyd's appealed.
o ISSUE Should the trial court have issued a judgment
notwithstanding the verdict?o HELD
The Federal Appellate Court vacated the verdict and remanded the case for a new trial.
53
Purchase of the jewelry There was enough evidence that a
reasonable jury could have found that Dadurian purchased the jewelry.
Lots of witness testimony - the court should give deference to the jury when the pertinent issue is the credibility of witness testimony
The jury's decision on the purchase is not enough to allow a new trial
Source of funds There was enough objective evidence and
witness testimony that the verdict was clearly erroneous
The Court felt that they were not in a position to completely overturn the verdict and find for Lloyd's, but that they could remand for an entirely new trial.
The court didn't feel that it could issue a verdict in favor of the party having the burden of proof
Also that the new trial should include a perjury charge against Dadurian
H. Other Controlling Techniques Admissibility of Evidence
Rules allow judge to exclude evidence “where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
Jury Instructions Errors in jury instruction are common basis for appeal Rule 51 governs instructions – can be given before or
after final arguments Before – Lawyers can argue based on the instructions Mostly its given after though because judge wants
last say 51(a)(1) – Each side must give proposed instructions to
the judge Judge decides it based on his own reading of the law. If
you disagree with the judge’s decision, you must object BEFORE the instructions are given to preserve it on appeal
54
50(c) Must object before instruction goes to the jury or it’s waived
Verdict Forms 3 types of verdicts
Rule 49 General Verdict- find for P for X amount of money
Most common 49(a) Special interrogatories- based on the answers
to these questions, judge will find result and issue verdict. 49(a)
Court asks jury to decide factual questions, but it is not asked to decide who wins or loses
Way to control juries, preferred by those who are skeptical of jury system
49(b) Compromise between the two: Special interrogatories with general verdict. 49(b)
What happens if they don’t match? 3 options. 49(b)(3)
Use special interrogatories (preference for these)
Send it back to the jury for reconsideration
Order a new trial CANNOT take a general verdict over
Judge Trials - Rule 52 Different, especially with respect to rulings on evidence
(more lenient) More restrictions regarding verdicts that juries
Must write down their findings of fact and conclusions of law
Often ask litigants to write proposed findings and conclusions
Less deference given if judge uses litigants’ findings for his opinion (can tell this from looking at the record)
No special interrogatories for judges
Juror Misconduct Common law rule was that affidavits of jurors could NOT
be used to impeach their verdict
55
Insulate review because of (1) need for stability of verdicts; (2) need to protect jurors from fraud/harassment by litigants; (3) prevent prolonged litigation; (4) prevent verdicts from being set aside because of subsequent doubts of juror; (5) concept of sanctity of jury room
Modified Iowa Rule Let in extrinsic evidence that can be objectively
corroborated or disproved Juror conducted investigation outside of
courtroom, illegal method of reaching verdict, etc.
Keep out intrinsic evidence that cannot be corroborated or disproved
Things known only to an individual juror like his thought processes, motives, etc.
Tanner v. US (1987) – Evidence that jurors were high/drunk is NOT admissible because it’s the same outside influence as if they had a food virus
But Florida Sup. Ct. said evidence that juror was racist WAS admissible because they violate guarantees of fair/impartial jury and equal protection
McDonough Power (1984) – Incorrect voir dire answers provide a basis for a new trial in limited circumstances
To obtain a new trial, party must first demonstrate that juror failed to answer honestly a material question on voir dire, then further show that a correct response would have provided a valid basis for a challenge for cause
Motion to Set Aside Judgment – Rule 60(b) A party failing to make a timely motion for JMOL or new
trial will raise this motion IT’s NOT an appeal, it’s made to trial court Granted EXTREMELY rarely
56
III. WHAT LAW APPLIESA. The Erie Doctrine
o The constitutional basis for the Erie problem Article I, gives congress certain specific enumerated
powers and the ability to do what is neccesary and proper to exercise these delgated powers
Amendment X says all other remaining powers are reserved to the states
Article III permits the creation of federal courts and defines their jurisdiction
1. Courts can hear all cases arising under the federal laws (that congress can pass under its enumerated powers.) - Subject Matter Jurisdiction
2. Courts can hear cases that do not involve federal law at all, but deal with a dispute between citizens of different states (if the dispute is over a certain amount of money)
o Here is the big freaking problem When federal courts hear cases of diversity
jurisdiction, they have the constitutionally established judicial power to hear the case, but there is no federal legistlative power to create the governing law.
So what the fuck do we do now? Attempt to fix the problem #1 - Rules of Decision Act
(1789) "The laws of the several states, except where the
constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts on the United Stated, in cases where they apply"
We could have avoided the entire Erie debacle all together, if it weren't for J. Story in Swift v. Tyson.
Unfortunately, J. Story interpreted the RDA as giving federal courts the power to examine all the common law authorities - including cases form the state in which it sat, from other states, from federal courts, English courts and the views of respected commentators - in order to ascertain the proper rule.
Which makes no fucking sense Attempt to fix the problem #2 - Erie v. Thompkins
57
Left with the ridiculous decision in Swift, which seemed to have done everything except logically interpret the text of the RDA, SCOTUS attempted some major backtracking in Erie.
J. Brandeis was the man who sounded the death knell for swift in the opinion of the court in Erie. Here is what he said about Swift
a. During the 140+ years since its enactment, Swift had failed to achieve its main goal of establishing a "general common law" created by eminent federal judges that state judges would except due to its "rightness." (turns out state judges also consider themselves capable of interpreting the law, the little shits). This resulted in multiple contradicting doctrines in the same physical jurisdiction
b. The practice of creating federal common law resulted in forum shopping and the inequitable administration of justice. Out-of-state plaintiffs were unfairly benefitted because they could choose a different substantive law by filing in federal court. It is inequitable for the law to be substantively different for citizens of different states.
c. It was unconstitutional for the federal judged to make law in areas in which the federal government had no delegated legislative powers.
Here is the upshot: The RDA requires federal courts to follow
both state statutory law and state common law on issues upon which there is no federal lawmaking power.
Seems easy enough right? Wrong! So fucking wrong...
The next big freaking problem: What about laws governing judicial procedure??
Let's start with a little history, because this shit doesn't make sense without it.
Congress passed the Rules Enabling Act in 1934, 100 years after Swift was decided.
The act itself did not established the Federal Rules of Civil Procedure, instead it delegated the ability to create the rules to the judicial branch.
58
In Hannah the court upheld the constitutionality of the REA citing the necessary proper clause and Article III with gives congress the power to ordain and establish federal courts.
After the REA was passed the Judiciary got together with the consent of the Supreme Court and wrote the Federal Rules of Civil Procedure. The rules had both constitutional and statutory authorization, and, because they were written by the court, it was highly unlikely that the court was going to strike them down.
However the REA did contain one caveat. The second subsection said the rules shall not abridge, enlarge or modify any substantive rights.
So how does all this shit actually play out? Here is the result.i. There are 4 possibilities for conflicts in an Erie/Hanna
question1. Conflicts between a Federal Constitutional Provision
and State Law The Constitution always rules.
No "ifs," "ands," or "buts" about it. 2. Conflicts between a Federal Statute and State Law
Federal Statutes apply if they are valid. Federal statutes are constitutional under
Hannah, if they are clearly procedural or "while falling in the uncertain area between substance and procedure, they are rationally capable of classification as either".
3. Conflicts between a Federal Rule and State Law Federal Rules apply if they are valid.
Rules are constitutional under the REA if they are procedural.
Rules are not considered constitutional under the REA if they abridge, enlarge or modify any substantive right.
In order for a rule to be stuck down this way, it needs to have a substantial impact on state policy unrelated to litigation.
Rules that "incidentally" affect states rights are permissible - Burlington Northern R.R. Co. v. Woods
Due to preemption any procedural rule under the FRCP will trump state law.
59
Almost all of the FRCP's are going to be considered procedural, because the courts themselves made the rules with full knowledge of the limitations of the REA.
4. Conflicts between a Federal Judicial Practice and State Law
State law should generally be applied if using the federal practice could become outcome determinative under the twin aims of Erie.
If it isn't outcome determinative, meaning its not going to change the behavior of any current or future parties, and it will not lead to the law being unequally administered, then no one really cares if the judge follows his own procedure instead of the states. It makes no difference.
If the federal law is outcome determinative, it could possibly still be used if it falls into the exception. But this is a LONG SHOT.
In Byrd, J. Brennan wrote that the Erie policy of maximizing uniformity could be trumped by an important countervailing federal policy that arises from the federal court's status as an independent judicial system.
In Gaspirini, the court reemphasizes the importance of considering federal interest as a factor in choosing law.
Therefore, the court MIGHT, though it never has before, uphold a federal rule, statute or policy on the grounds that there is a countervailing federal policy of judicial administration that is such an essential characteristic of the federal court system that it may not be ignored.
And no, we have absolutely no examples of this.
60
1. Erie v. Tompkins Except in matters governed by the United States
Constitution or Act of Congress, the law that is to be applied in any case is the law of the state.
FACTS Tompkins (P) sustained personal injuries when he
was struck by an Erie Railroad Company (D) freight train in Pennsylvania while walking on a footpath adjacent to the tracks. Tompkins was a citizen of Pennsylvania and Erie Railroad Company was incorporated in New York.
Tompkins brought this personal injury lawsuit in diversity in federal district court in New York, asserting that he was lawfully on the property as a licensee, and that the accident occurred as a result of Erie Railroad’s negligence in the operation or maintenance of the train. Erie Railroad Company denied liability and wanted Pennsylvania common law to apply: persons using pathways adjacent to railways were deemed trespassers and the railroad would not liable for injuries unless its actions were wanton or willful .
PA law - willful/wanton Tompkins thought the railroad’s duty and
liability should be determined according to the rule established in federal court in light of Swift v. Tyson. Under federal common law Tompkins would be regarded as a licensee. Railroads owed a duty of ordinary care to pedestrians and would be liable upon a showing of ordinary negligence.
"Federal General" Law - standard negligence
61
At trial, the jury returned a verdict in favor of Tompkins for $30,000. The Circuit Court of Appeals affirmed, holding that in regards to questions of general law that are not covered by state statute, federal courts are free to exercise their judgment as to what the law is. The Circuit Court of Appeals held that railroads owe a duty of ordinary care to those who use permissive pathways adjacent to railroad tracks. The defendant appealed and the Supreme Court granted certiorari.
ISSUE In actions in diversity, except in matters governed
by the Constitution or acts of Congress, must federal courts apply state common law in addition to statutory law?
Requiring an interpretation of section 34 of the Federal Judiciary Act:
"The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."
HELD Opinion of the Court, J. Brandeis Yes. In actions in diversity, except in matters
governed by the Constitution or acts of Congress, federal courts must apply state common law in addition to statutory law.
RULE In diversity cases:
federal courts must apply state law as declared by the highest state court in addition to state statutory law.
There is no federal general common law. Congress has no power to declare
substantive rules of common law applicable in a State and the Constitution does not confer such a power upon the federal courts.
Section 34 of the Federal Judiciary Act of 1789 is constitutional
Swift v. Tyson is overruled because:
62
Wrong interpretation of the Federal Judiciary Act .
The term "laws of the several states" was intended to include state statutory law and state common law.
There is new evidence - a new draft of the law was found that included statutory and common law in the text.
Therefore, under the statute the court does not have the power to create federal common law.
Bad Policy resulted from Swift Prevented Uniformity
There needs to be vertical uniformity, meaning that all courts within the state (federal or state) need to apply the state law
Because diversity jurisdiction is intended to give someone an unbiased forum, not a different form of law
Encouraged Forum Shopping Citizens of one state could move to
another state to create diversity and bring suit in federal court to take advantage of a more favorable choice of law.
Such a defect is substantial and provides no benefit.
3. An unconstitutional assumption of powers by the Courts of the United States.
Federal courts do not have the power to create federal common law as this gives federal courts powers not granted in the Constitution. Congress has no power to declare the substantive rules of common law in state actions.
B. The Rules Enabling Act Distinguished
1. Hanna v. Plumer
63
In civil cases in which diversity is the basis of Federal Court jurisdiction, where a situation is governed by a federal rule, it's the federal rule, not the state rule, which the court must apply
FACTS Plaintiff served process on defendant, the executor of
a MA estate, in accordance with FRCP 4(d)(1). But a MA statute required in-hand service upon the executor. If service was valid, case would go forward, if not, it would have to be dismissed.
ISSUE Was federal court required to apply MA rule or FRCP
for service? HELD
FRCP 4(d)(1) neither exceeded the Congressional mandate in the Rules Enabling Act nor transgressed Constitutional bounds. The FRCP should have been applied by district court
Opinion of the Court, J. Warren D’s Argument – York says use state law if doing
so will affect the outcome, and here is clearly will
Part 1 (Rules of Decision Act Prong) – Conflict between two service rules under a modified outcome-determinative test
Whether a federal procedure is outcome determinative must be viewed in light of the twin aims of Erie :
(1) Prevent Forum Shopping (2) Prevent Inequitable Administration
of the Laws If the federal rule is predictably outcome
determinative at the beginning of the suit so as to cause forum shopping, then it’s substantive and court should use State law
Here, it’s doubtful that a plaintiff would choose federal curt over state court simply to avoid serving the defendant in person, since the effort required to do so is only marginally greater than required to serve under federal rule.
Part 2 (Rules Enabling Act Prong) – When an enacted Federal Law (FRCP) conflicts with state law
64
Rules Enabling Act (28 USC §2071-72) authorizes SCOTUS to “prescribe general rules of practice and procedure for federal courts”
Advisory Committee appointed by SCOTUS drafts rules, promulgates the to SCOTUS, submits to Congress for 6 month review before taking effect
This plus Constitutional authority suggests that Congress and the Court have broad constitutional authority to promulgate any rule that is “arguably procedural”
But for FRCP, Rules Enabling Act says “such rules shall not abridge, enlarge, or modify any substantive right”
Concurrence, J. Harlan The test for deciding whether the Erie doctrine
applies to a rule of procedure should be a determination of whether the choice of rule would "substantially affect those primary decisions respecting human conduct" which our constitutional system leaves to state regulation. If so, Erie and the Constitution require that the state rule prevail, even in the face of a conflicting federal rule. Erie wanted to ensure that there were not two conflicting systems of law and the creation of substantive state law by federal courts should be avoided if that creation extends beyond constitutional limits.
C. Applying the REA and RDATEST - Does federal or state law apply?
o Is there a federal rule or statute designed to serve the same purpose as the state law? Do the two laws directly conflict? -> If YES go to REA, if no go to RDA
1. REA - the REA gives authority to create rules that are procedural in nature, rules that are not procedural are not constitutional
Is the rule or statute constitutional? Did congress pass this law under one of its
enumerated powers? (Congress can set the regulations for the procedures of the federal courts, but has limited power to establish the substantive law for the cases that come before the courts)
Is it arguably procedural?
65
The judicial process for enforcing the rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them
Does it serve a procedural goal of accuracy, fairness or efficiency?
Does it prescribe general rules of practice and procedure?
Any area of law that is largely judge made will most likely not be procedural – contracts, torts, probate, property
If NO then apply state law (this will not happen)
If YES and it’s a STATUTE - analysis is done, federal law applies due to preemption
If YES and it’s a RULE - continue analysis If the rule is arguably procedural, does the rule
fall outside the scope of the REA? Does it modify, abridge, or enlarge substantive
state right? Does the rule substantially affect those
primary decisions respecting human conduct at the time the incident arose which our constitutional system leaves to state regulation?
Does the rule involve lawmaking choices that necessarily and obviously require consideration of policies extrinsic to the business of the courts?
What was the state intending to do with the law? Were they establishing a protection for their citizens or granting their citizens a new right?
Would applying the FRCP have a substantial impact on a state policy unrelated to litigation?
Rules that "incidentally" affect states rights are permissible - Burlington Northern R.R. Co. v. Woods
If YES then it is substantive and outside the scope of the REA, state law governs
If NO then apply federal law2. RDA
66
Use the outcome determinative test in light of the twin aims of Erie.
1. Does a federal rule or statute encourage forum shopping?
What is the issue and how important is it to the party?
How significant is the difference in law? Does it substantially effect the character
of the litigation? Would the federal forum lead to an
advantage to the party either procedurally or substantively?
2. Does the federal rule or statute lead to inequitable administration of the law?
Apply the outcome determinative test3. Does this fall into the exception:
Are there affirmative countervailing considerations of federal judicial administration present?
Such as essential characteristics of our federal court system
If NO to 1 and 2 then federal law applies If YES to 1 and/or 2 and NO to 3 then state
law applies If YES to 1 and/or 2 and YES to 3 then federal
law applies
1. Burlington Northern Railroad Co. v. Woods Under the Rules Enabling Act the federal rule is
applicable and not the AL lawo FACTS
P filed case, won; D appealed; judgment affirmed. Alabama statute that if P wins below, D appeals, and judgment affirmed, then D must pay 10% “bonus” and costs to P. Ct says it conflicts w/ Fed. Rule of Appellate Procedure 38, which says damages and costs go to P if D’s appeal is frivolous. P says ct. could first apply the AL statute (which applies to all appeals, not just frivolous ones), then apply Rule 38.
o ISSUE Should the court apply federal or state law?
o HELD 1. Is the rule constitutional?
o Rule 38 is procedural, and is therefore constitutional
2. Does the rule conflict with the state statute?
67
o Ct. reads that Rule as saying, not only that frivolous appeals must be penalized, but that when appeal is not frivolous, there can be no penalty
o Thus, Rule 38 applies to all appeals, making it impossible to follow both laws at the same time = conflict
Constitutional + conflict = federal law prevails due to the supremacy clause
2. Stewart Organization, Inc. v. Ricoh Corporation
If a congress has the power to enact arguably procedural statutes, and those statutes apply in federal court even if the state court would apply a different rule
o FACTS Local franchisee in AL sues national organization for
breach of contract in AL Fed. Dist. Ct. D has a forum selection clause stating litigation must be held in NY. AL state courts had refused to enforce forum selection clauses. Fed. Statute § 1404 says court can change venue for the convenience of the parties (but doesn’t say forum selection clauses must be honored).
o ISSUE Should the ct. follow state common law or the federal
statute?o HELD
Ct. says § 1404 applies if there’s proper venue, but you can go elsewhere. For state to bar transfer of venue would not allow the ct. to use § 1404 at all. Ct. will take state’s preferences into account as one factor.
There is state common law – protect the locals of Alabama by preventing shifting to out of state venue.
Federal rule §1404 – says that you can transfer – Alabama says you can’t.
§1404 is a statute – unless unconstitutional it is Supreme.
In deciding how to apply §1404, the courts were free to take into account the state’s antipathy to forum selection clauses – but only as one factor, and perhaps not a dispositive one. `
68
Factor analysis of §1404 would include consideration of state policy on forum selection clause.
State’s preference can be a factor. Give effect to state rule because it is a
considered factor in federal independent process
D. Latest Developments
1. Gaspirini v. Center of Humanities In a federal district court sitting under diversity
jurisdiction, the standard the judge uses to determine whether a jury's itemized verdict is excessive is that of state law, and is only subject to appellate review for "abuse of discretion."
FACTS Gasperini (P), a journalist, loaned 300 slide
transparencies of conflicts in Central America to the Center for Humanities for use in the creation of an educational video. The Center for Humanities lost the slides and Gasperini brought this lawsuit in diversity in federal district court.
An expert witness for Gasperini testified that according to the photography “industry standard”, the accepted compensation for a lost slide transparency was $1,500. Although Gasperini testified that he had only earned $10,000 through photography work from 1984 to 1993, the jury applied the industry standard of compensation and awarded him $450,000.
The Center for Humanities moved for a new trial on the grounds that the award was excessive. It argued that the review of jury awards was substantive and that New York state law should apply. Gasperini contended that federal law should apply and that the jury award could only be amended if it shocked the conscience of the court. He argued that it would be a violation of the Reexamination Clause for the federal court to apply the New York standard.
69
The Court of Appeals for the Second Circuit found that New York law applied and held that the verdict deviated from what is reasonable compensation. The Court ordered a new trial unless Gasperini agreed to a reduced award of $100,000 (remittitur). Gasperini appealed and the Supreme Court granted certiorari.
ISSUE Does the Seventh Amendment preclude the
application of a state law standard of review of jury awards in diversity actions, if that standard of review is lower than the standard that would apply under federal law?
HELD Opinion of the Court, J. Ginsburg
No. The lower state law standard of review of jury awards may be applied by federal courts consistent with the Seventh Amendment if the standard is applied by the federal trial court judge, and the standard of review by the federal appellate court shall be “abuse of discretion”.
Under Hanna v. Plumer, the application of the outcome determinative test must be guided by the twin aims of Erie - to discourage forum shopping and to avoid the inequitable administration of the law.
The review of jury awards is a matter of substantive law. If federal courts apply the more stringent “shock the conscience” test under federal law in reviewing jury awards for claims governed by New York law, there will be substantial variations in money judgments depending on whether they are brought in New York state courts or federal courts in diversity.
Although the New York law is phrased as a direction to New York appellate courts, in practice the “deviates materially” also applies to state trial courts. The trial court must therefore apply the standard under state law, and the standard of review in federal court shall be “abuse of discretion”.
Dissent, J. Scalia
70
Apply Rule 59 (new trial), which prevailed over state law and controlled power of fed. dist. judge to review jury verdicts. 7th Amend. prohibits all review.
2. Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.
If an FRCP answers the question in dispute, it governs, unless it exceeds its statutory authorization or Congress' rulemaking power.
FACTSo Shady Grove Orthopedics Associates (Shady Grove),
on behalf of a class of plaintiffs, sued Allstate Insurance Company (Allstate) in part for Allstate's alleged failure to pay interest penalties on overdue insurance payments as prescribed by New York statute.
o Allstate moved to dismiss relying on New York's rules of civil procedure which instruct that class action lawsuits are inappropriate unless specifically prescribed by statute.
The U.S. District Court for the Eastern District of New York agreed that Shady Grove's class action claim was not authorized and thus dismissed its claim.
o On appeal, Shady Grove argued that the New York rules of civil procedure conflict with Rule 23 of the Federal Rules of Civil Procedure and thus were not applicable. The U.S. Court of Appeals for the Second Circuit disagreed with Shady Grove and affirmed the district court. The Second Circuit, reasoning from the Supreme Court's decision in Erie Railroad Co. v. Tomkins, stated that the New York rules of civil procedure did not conflict with Rule 23 and thus Rule 23 did not control.
ISSUESo 1) Can a state legislature prohibit federal courts
from using a federal class action rule for a state law claim?
o 2) Can a state legislature dictate civil procedure in federal courts?
HELDo Opinion of the Court, J. Scalia
71
No. No. The Supreme Court held that §901(b) of the New York rules of civil procedure does not preclude a federal court sitting in diversity from entertaining a class action under Rule 23 of the federal rules of civil procedure.
If Rule 23 answers the question in dispute, it governs, unless it exceeds its statutory authorization or Congress' rulemaking power.
Here, the Court reasoned that Rule 23 answers the question in dispute – whether Shady Grove's suit may proceed as a class action – and is therefore controlling.
The Rules Enabling Act, not Erie controls the validity of a federal rule of civil procedure, even if that results in opening the federal courts to class actions that cannot proceed in state court.
o Concurrence, J. Stevens Rule 23 applies in this case, but in some cases,
federal courts should apply state procedural rules in diversity cases because they function as part of the state's definition of substantive rights and remedies.
o Dissent, J. Ginsburg Criticized the majority opinion for using Rule 23
to override New York's statutory restriction on the availability of damages and consequently turning a $500 case into a $5,000,000 one.
She cautioned that it is important to interpret the federal rules with sensitivity to state regulatory policies.
E. Determining Content of State Law□ Which state’s law applies?□ What is the law of the state?
o Traditiuonally federal judges were required to apply state common law strictly without taking creative license
o HOWEVER, after Richardson v. Commissioner, the courthas given federal judges more freedom to interpret state law
o Judges should give proper regard to decisions of trial and intermediate appellate courts, but their job is to apple the law as announced, or as it would be announced, by the state’s highest court.
72
The federal judge is not permitted to make up state law, be he is permitted to make an educated guess about how the law would be applied to day instead of simply parroting the law from its last application a
Judges should look at all available data, including
o Decisions from the lower courtso Developing trends in the area of law that
might weaken or reaffirm the existing precedents
1. Deweerth v. Baldinger A subsequent change in state law does not provide
grounds for relief under Rule 60(b)(6), requiring "extraordinary circumstances" to throw out a judgment
o FACTS In a previous case, P sued D after D had a painting
taken from P’s family in WW2. Trial court found for P but appellate court reversed, saying NY limitations law required “reasonable diligence” in locating stolen property, and P didn’t show that. Years later, in a different case, the NY Court of Appeals said the relevant NY limitations law did NOT require a showing of reasonable diligence, specifically citing the 2d Cir. as being wrong
o ISSUE Can the decision of a federal court assuming the
role of the state supreme court be reversed after the state supreme court later clarifies the issue?
o HELD Nothing in Erie suggests that consistency must be
achieved at the expense of finality. The second case can’t proceed and D wins
Erie does not stand for proposition that P is entitled to reopen a case that has been closed for years, in order to gain the benefit of a newly announced state court decision
P specifically decided NOT to bring her case in state court originally
A subsequent change in state law does not provide grounds for relief under Rule 60(b)(6), requiring “extraordinary circumstances” to throw out a judgment
73
Principle also applies in federal cases where SCOTUS has changed law
F. Federal Law
74
75
IV. PRECLUSION DOCTRINESA. Claim Preclusion
o No person shall be vexed by the same claim twice. In the interest of the state, there is an end to every piece of litigation
o Rule for Claim Preclusion (1) Same parties (& same claimant) (2) Same Claim
Restatement (same transaction or occurrence) Test Primary Rights Test Single Wrongful Act
(3) Quality of Judgment (a) Final (b) Valid (c) On the Merits
o Most courts believe claim preclusion to be a waivable defense. D must raise it or its gone
1. Scope Three tests:
□ Restatement of Judgments (Federal Courts) – A party who has asserted a right of relief arising out of a particular transaction or occurrence, must join all claims she has arising from it, or the omitted claims will be barred
If it makes sense from the perspective of judicial economy to try the claims together, then they arise from the same transaction/occurrence
The same transaction/occurrence test does NOT depend on the legal theory of the case
Reasoning – Efficiency! MAJORITY RULE, it’s the legal realist
approach□ Primary Rights – A single tort resulting in
property and personal damage gives rise to two causes of action, so recovery in one is NOT a bar to the other
Reasoning – Rights are more important than efficiency
Formalistic approach
76
The negligent act of defendant in itself constitutes no cause of action, it becomes an actionable wrong only out of damage it causes
Reilly (N.Y. 1902) – Injury to person and property were two claims because there are different statute of limitations applied to both and P cannot assign a right of action to personal injury but can for property damage
The rule avoids hardship in cases involving insurance coverage. If you get in a car accident and insurer pays you for property damage (subrogate claim) and then you recover against D for personal injuries, restatement test would preclude the insurer from suing
But jurisdictions just make an exception for subrogation
□ Single Wrongful Act – As defendant’s wrongful act was single, the cause of action must be single.
Different injuries occasioned by it are items of damages proceeding from the same wrong
□ NOTES If two people were injured in the same
occurrence, each claim is personal to each person harmed
Not all jurisdictions have one rule for all kinds of cases
In Contracts cases, claim involves all amounts owed at the time of filing suit
See Carter v. Hinkle
a) Carter v. Hinkle The Primary Rights test (minority test) holds
a single tort resulting in property and personal damage gives rise to two causes of action, so recovery in one is NOT a bar to the other. The second claim was not precluded.
FACTS
77
Hinkle, plaintiff, was driving his taxi when he got into a collission with a vehicle being operated by Carter, defendant. Hinkle sued Carter and the owner of the vehicle that Carter was operating for damages to his taxi and prevailed. Later, Hinkle brought a second lawsuit against Carter and the owner of the vehicle for personal injuries. The defendants moved to dismiss by arguing that the first lawsuit filed by Hinkle precluded him from filing a second lawsuit
ISSUE Can Hinkle bring two separate lawsuits for
damages suffered from the same incident -- one lawsuit to recover for property damages and the second one to recover for personal injuries?
HELD Two conflicting rules have been developed by
the courts over the years. Majority Rule
the injured party must bring one lawsuit for all damages suffered from one incident. The reasoning behind this rule is that it prevents courts from being overcrowded with multiple lawsuits by the same plaintiff for damages caused by the same incident.
Minority Rule physical injuries and property
damages are distinct causes of actions that can be brought in separate lawsuits.
Here, the Court followed the minority view.
2. Partieso Parties to the two suits must be the same or in
privity with one another The notion is from Due Process that everyone is
entitled to their day in court o Categories of Privity Relationships
78
(a) Nonparty may be bound by judgment if he was represented by a party to another case
Beneficiary represented by a trustee Guardian representing beneficiaries in his
representative capacity (b) Substantive legal relationship between litigant and
non-party Successive owners of property Someone who assigns contract rights
o Both cases must be brought by the same claimant against the same defendant
A can sue B, but if B has a claim against A, he is not bound by claim preclusion to state it
He is, however, bound by the compulsory counterclaim rule 13(a) if B’s claim arises out of the same transaction or occurrence as A’s claim
Does not apply for permissive counterclaims A sues B (breach of K); then A sues B (negligence)
Under Rule 18, this is a permissive claim that doesn’t have to be joined
But under claim preclusion, you have to join these claims or they’re merged (under Restatement test)
Anomaly comes from D’s counterclaim Claim Preclusion doesn’t require him to state
the claim because it’s a different claimant But the rules (13(a)) state that it is compulsory
because it’s same transaction/occurrence o Example:
If A gets into a car accident with B & C, Rule 20(a)(1) says A may decide to sue B & C together but he doesn’t have to. If A sues B, he is NOT claim precluded from then suing C because it’s different parties
Also if he had to sue C with B, then it would turn permissive joinder in 20(a)(1) to compulsory joinder
BUT, this does NOT prevent the judgment in A’s suit against B from having some preclusive effect – ISSUE PRECLUSION
3. Valid, Final & On the Merits (a) Valid
79
o Court must have had SMJ and PJ. A judgment by a court having both forms of jurisdiction is valid, even if the court was wrong on the merits
Default Example - In order to challenge PJ, D can default and wait for P to sue somewhere else. If D wins PJ issue, he wins. If D loses, cannot litigate on the merits (due to claim preclusion)
(b) Finalo Final judgment by the trial court
Individual (non-final) ruling during the litigation don’t get preclusive effect because they may be revisited by the judge before the decision on the case
If a final judgment is appealed, federal courts hold that the trial court’s judgment in the interim (before the appeal is decided) is entitled to claim preclusion. State courts differ
o If two cases go to trial at the same time, one that enters judgment first is given full faith and credit
(c) On the Meritso A trial is NOT required, Summary Judgment
and JMOL constitute a decision on the merits o Any judgment in favor of the claimant is on the
merits because it establishes the validity of the claim (merger)
o The more difficult situation is where claimant loses (12(b)(6), discover sanction, etc.)
Any judgment against claimant, except one for lack of jurisdiction, improper venue, or for non-joinder/misjoinder is accorded preclusive effect
12(b)(6) dismissal is on the merits, unless it’s entered without prejudice
Dismissal with prejudice is on the merits
SJ motions are usually with prejudice and therefore on the merits
If a party files suit but doesn’t pursue the case, dismissal is on the merits because plaintiff had a full opportunity to litigate the merits
Same is true for a defendant who defaults
80
4. Exceptions Exception to res judicata – Moser
o A sues B in state court under a state unfair competition statute. A might also recover against B for patent infringement, a federal claim where federal courts have exclusive jurisdiction
A could not have included his federal theory in the first state court action because the federal courts have exclusive jurisdiction over the claim.
Thus, he will usually NOT be barred from asserting the pat
B. Issue Preclusiono Different claim, but arguably has an issue that was adjudicated
between the same parties in a prior claim, or at least against the party against whom the preclusion is asserted
If A, B, C has been established in first case and in the second you need A, X, Y – A has already been established . You can preclude the re-litigation of that issue
o Narrower than res judicata in that it does not preclude all possible issues that might have been raised in a prior action, but only those actually decided in that action
o But broader in that it can foreclose litigation of a particular issue in an entirely new context
o Rule for Issue Preclusion (1) Same Issue
Same Facts Same Law
(2) Actually Litigated (3) Necessary to the Result (4) Targets of Preclusion - Party against whom it is asserted
was present in case 1 with a full & fair opportunity to litigate
(5) Quality of Judgment For offensive non-mutual issue preclusion (different
plaintiffs, same defendant) - Parklane factors: Did P avoid case 1 for tactical reasons? – If no, issue
preclusion probable
81
Did D have an incentive to litigate case 1? If yes, issue preclusion probable
Does case 2 give D procedural opportunities unavailable in case 1? If no, issue preclusion probable
Are there prior inconsistent judgments? If no, issue preclusion probable
1. Same, Litigated, Determined Same Issue
o Same Law and Same Facts Same substantive law Same standard of proof Law interpreted the same way
o Look to differences in law (federal vs. state), as well as how the standard is interpreted in the different jurisdictions
If body of law being used is different, must ask whether the standard is different. On exam, recognize that there may be a difference and say that research must be done to determine if different systems/contexts use the word the same way.
o Case 1 – State bar against lawyer for malpractice; Case 2- Client against lawyer for malpractice
“Negligence” can mean tow different thigs in these contexts – if different law applies it’s NOT the same issue
o Case 1 – State Government v. Acme on whether Acme committed fraud (preponderance of evidence standard); Case 2 – Person vs. Acme in Federal Court (clear and convincing standard)
Same facts, but different evidence standard – clear/convincing is more stringent than preponderance.
A jury in case 2 may not find liability even though jury in case 1 might – NOT same issue
If case 1 was clear/convincing and case 2 was preponderance of evidence
82
If they met the higher standard in case 1, we assume they would have met the lower standard in case 2
o Case 1 – Worker with asbestos exposure from 1970-75 vs. corporation (duty to warn issue); Case 2 – Worker 1965-70 vs. Corp
Different worker Even though it’s the same issue on the surface,
it can be different depending on the substance of the law
Negligence is one issue, regardless of the theory
Contract invalidity can be a number of different issues
Research the substantive law to see how finely sliced the issue is
Issue Actually Litigated o Requirement is not satisfied when a party failed to
raise an issue in a previous action, but an issue might not have been actually litigated even if it was raised in prior action
o Reasons why a party may choose not to raise an issue:
Action may involve so small an amount that the litigation of the issue could cost more than the judgment
Forum may be inconveniento For claim preclusion, it doesn’t matter if it was
actually litigated, as long as you had the chance to litigate it. For Issue preclusion, it DOES matter if it was litigated
o If preclusive effect were given to issues not litigated, the result might serve to discourage compromise, decrease likelihood that issues in an action would be narrowed by stipulation, and thus intensify litigation
Don’t force someone to think about issues in all cases down the line – only about the one case pending
o When discussing same issue, don’t confuse it with “actually litigated”
If case 1 is a default case, the issue may be available in case 1 but it might not be actually litigated (see 2b hypo, below)
83
o In Baldwin, D directly attacks PJ which court rejects. When P seeks to enforce the judgment in another court, D attacks PJ collaterally – this was issue precluded
Quality of Judgment Same as Claim Preclusion, but applied in a different
way (a) Validity – Notice, PJ, SMJ (same as Claim
Preclusion) (b) Final Judgment – Doesn’t have to be a final
judgment of the whole case, just on that issue (c) On the Merits – If issue has been finally
adjudicated, adequate basis for on the merits As opposed to Claim Preclusion, where claim
can be dismissed for issues not regarding the merits
a) Cromwell v. County of Sac Where a second action between the same
parties is based upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue upon which the verdict or judgment was rendered.
o FACTS Case 1 – 4 Coupons on municipal bond. The
county wouldn’t pay on the coupons and Cromwell sues. County thinks the bonds are fraudulent and invalid. Court said bonds are invalid because of fraud
Case 2 – Cromwell v. County on 4 different coupons. County said bonds are invalid! Cromwell said he’s a holder in due course (received bonds for value without notice of its fraudulent issue). County said he could have raised this in Case 1 so he’s issue precluded
o ISSUE Is the issue in case 2 precluded?
o HELD The rule makers decided that you shouldn’t
have to litigate all issues in a claim that might not be as relevant in this claim as it might be in a future claim
Thus, no issue preclusion and Cromwell can litigate the holder in due course doctrine
84
NOT a case of claim preclusion because it’s a different claim on 4 different coupons
The coupons in case 2 were due and payable after the first suit – they’re separate contracts not claim precluded
If they had been the same bonds, then it would have been claim precluded because the holder in due course defense was available to him originally
2. Essential Did the finding impact the judgment? Could the new plaintiffs had appealed the judgment? If a court finds for a litigant on two independent, sufficient
grounds, the Restatement would deny issue preclusion to either decision since it is impossible to tell which decision was necessary to the judgment
a) Rios v. Davis It is the judgment and not the conclusions of
fact filed by a trial court that constitutes estoppel. A finding of fact by a jury or court, which does not become the basis or one of the grounds of the final judgment, is not conclusive against either party to the suit.
o FACTS Case 1 – Popular Dry Goods sued Davis to
recover damages collision; Davis brings in Rios as a third party defendant – ALL were contributorily negligent so Popular didn’t recover against Davis and Davis didn’t recover against Rios
Case 2 – Rios sued Davis. Davis answered saying Rios was guilty of contributory negligence and urged claim/issue preclusion
o ISSUE Should the issue in case 2 be precluded?
o HELD Same issue – Same facts, same law (negligence
in TX) Actually Litigated – Davis said Rios was
negligent. The jury rendered a verdict on whether Rios was negligent
85
Necessary to the Result – The sole basis for the first decision was the findings concerning the negligence of Davis. The finding that Rios was negligent was NOT essential/material to the judgment
The finding of Rios’ liability has NO impact on the judgment in Case 1
If Rios wanted his negligence reversed for insurance reasons after the first case, he wouldn’t be allowed to appeal because the case’s judgment wasn’t about him. He doesn’t really want the judgment in case 1 changed because he won! He didn’t have to pay Davis!
o NOTES Rios could use issue preclusion against Davis in
this case because Davis’ negligence was determined in case 1
It’s the same issue, actually litigated, necessary to the final judgment vis a vis Rios in Case 1 (Davis lost case 1 against Rios because he was negligent)
Davis could have appealed case 1, Rios could not have
Had this case been filed in FEDERAL court, Rios would have been barred under 13(a) because this case arises from same transaction/occurrence – compulsory counterclaim
What if case 1 was Popular vs. Rios and Davis? Normally, courts say that for co-
defendants, you’re not bound by the result because the two defendants didn’t litigate against each other
3. Against Whom Party against whom it is asserted was present in case
1 with a full & fair opportunity to litigateo Claim preclusion could only be asserted against
parties to prior litigation or nonparties in privity with litigant
o Same requirement for issue preclusiono This section deals with issues of privity
o It’s all about Due Process - has the party whom issue preclusion is being asserted against had his or her day in court
86
o Privity is appropriate for commercial and legal relationships (Hardy)
o Courts struggle with extent to which virtual representation is proper
o Taylor v. Blakey (D.C. Cir.) – Virtual representation requires: (1) Identity of interests; (2) adequacy of representation; (3) one other factor like (a) close relationship, (b) substantial participation in case 1, (c) tactical maneuvering by present party to avoid preclusion
a) Hardy v. Johns-Mansville Collateral estoppel is inappropriate when the
prior judgment is ambivalento FACTS
Case 1 – Borel – Plaintiffs won a judgment against 6 asbestos manufacturers.
Case 2 – Different plaintiffs sued the 6 defendants who lost in Borel and thirteen additional manufacturers
o ISSUE Whether issue preclusion can be used against
those manufacturers NOT a party in Borel?o HELD
In this case, the 13 other manufacturers didn’t even know the issue was being litigated in Borel. The hadn’t had their day in court and thus cannot be precluded Ruling also applies to defendants who were parties to Borel but settled before trial. But if they settled just to avoid issue preclusion, that might preclude re-litigation
District court said issue preclusion against all defendants because the defendants have an “identity of interests” sufficient for preclusion
Same product, same interests, same business and therefore they were represented by someone else on their behalf – big extension of privity!
Identity of interests alone is not sufficient for privity
Types of relationships that are in privity and justify preclusion:
(1) Based on commercial relationships – successor in interest in property or in a claim
87
Assigning right to sue based on someone else. If they’ve sued, person who acquired the claim is in privity
(2) Legal relationships Trustees/executors/administrators Someone who had a right to control
litigation (insurance policy with a right to defend)
4. By Whom Who can assert issue preclusion?
o Due process requires that issue preclusion be asserted only against one who was a party to the first case
o This is about by whom can issue preclusion be asserted
o Traditional Rule – Mutuality – Preclusion can be used only by someone who was a party to the first case
o Fairness rationale – someone who cannot be hurt by a prior judgment shouldn’t be entitled to take advantage of it
o But the rule eroded because of two exceptions in vicarious liability cases:
o Patron sues Employee, Employee wins. Now Patron sues employer because of vicarious liability
o Because first case said Employee hadn’t committed a tort, employer wants to use issue preclusion but can’t because they weren’t a party to the first case
o If the patron wins vs. employer, the employer would then sue the employee for indemnification. If employer wins that, what good was employee’s victory in case 1?
o Court recognizes this – narrow exception to mutuality
o Patron v. Employer, Employer won. Then Patron sues Employee. Employee can’t use issue preclusion because of mutuality doctrine. The narrow exception doesn’t apply because if employee loses the case, he has no right to indemnification from the employer
88
o Some courts still permit employee to assert nonmutual issue preclusion – broad exception
o These exceptions paved the way towards most courts abandoning mutuality towards non-mutual issue preclusion
a) Bernhard v. Bank of America Nat. Trust & Sav. Ass'n
There is no requirement that the party asserting the plea of res judicata must have been a party, or in privity with a party, to an earlier litigation so long as the party against whom res judicata was asserted was a party in privity to a party in that litigation.
FACTSo The Plaintiff, Bernhard (Plaintiff), brought an
action as new administratix of an estate to hold the Defendant, Bank of America Nat. Trust & Sav. Ass’n (Defendant), liable for recovery of bank withdrawals not approved by decedent.
ISSUE o Whether the Plaintiff in the present action was
a party to or in privity to the earlier proceeding.
HELD o In determining the validity of a plea of res
judicata, three questions are pertinent: 1. Was the issue decided in the prior
adjudication identical with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
o The issues as to identical action and final judgment were answered in the affirmative. The Plaintiff in this suit brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the account hearing.
89
b) Blonder Tongue Labs v. Univ. of Illinois Foundation
The relitigation of the same issue, even among separate parties, is not permitted as long as the party against whom preclusion is being asserted had a full/fair chance to litigate the issue
o FACTS (1) Patent Holder v. Infringer #1 – Infringer
wins (patent invalid) (2) Patent Holder v. Infringer #2
o ISSUE Can Infringer #2 assert issue preclusion?
o HELD Infringer #2 can raise defensive non-mutual
issue preclusion Policy reasons – This limits the relitigating of
issues without compromising fairness. It gives P an incentive to join both Ds in one case
Efficient to allow defensive non-mutual issue preclusion because it encourages goal of preclusion doctrine by forcing P to join as many Ds as possible in one case
Fair to the person precluded because person precluded has control over venue and is likely to know how many Ds are out there and what’s at stake in the case
The requirement is whether the party against whom preclusion is being asserted had a full/fair chance to litigate the issue. Here they do because it’s brought against plaintiff who had the chance in case 1
5. Non-Mutuality DEFENSIVE Non-Mutual Issue Preclusion
90
o Used by defendant in case 2 in a claim to stop plaintiff from relitigating an issue that the plaintiff already litigated in another case an lost
It is being used by somebody who is not a party in case 1 and that party is a defendant in case 2
It is allowed if the person against whom the party is attempting to use issue preclusion had a full chance to litigate the issue in case 1
Example A loans car to B, B gets in a care accident
with C C sues B, B wins C sues A A tries to use Issue preclusion
Issue preclusion is permitted because C had a full chance to litigate in case 1
OFFENSIVE Non-Mutual Issue Preclusion o Used by a plaintiff in case 2 who was not present in
case 1 to prevent a defendant who was present in case 1 from litigating an issue that the defendant already lost in case 1
Same issue, actually litigated, necessary to result, party whom it’s used against had full/fair opportunity
o General rule non-mutual offensive issue preclusion is permitted if it is fair – Parklane factors:
Did P avoid case 1 for tactical reasons? – If yes, issue preclusion isn't possible
Did D have an incentive to litigate case 1? – If yes, issue preclusion is possible
Does case 2 give D procedural opportunities unavailable in case 1? – If no, issue preclusion is possible
Are there prior inconsistent judgments? If no, issue preclusion is possible
Example A loans car to B, B gets in a care accident
with C C sues B, B wins A sues C A tries to use Issue preclusion to show that
C is responsible for damage to A's caro NOTES
91
Non-mutual Offensive Issue Preclusion has given rise to plaintiff shopping. Lawyers of many Ps will find the P with the strongest case and let them go forward, then the rest of the Ps will follow suit
But defendants may engage in their own plaintiff shopping – settle claims with the Ps with good cases and then try the case against the crappy plaintiffs
But many plaintiffs don’t try to take advantage of offensive non-mutual issue preclusion because they’ll want the jury to hear their own parade of horribles (if they have one)
a) Parklane v. Shore A plaintiff should be allowed to employ
offensive collateral estoppel unless it would have been easy for the plaintiff to have joined in the earlier action, or collateral estoppel would be unfair given the circumstances.
o FACTS (1) SEC v. Parklane – Parklane’s stock
statements were false/misleading, SEC wins (2) Shore v. Parklane – Shore wants to issue
preclude Parklane that proxy statements were fraudulent
Same issue, actually litigated, necessary to result, against party who had full/fair opportunity
o ISSUE Whether a litigant who was NOT a party to a
prior judgment may nevertheless use that judgment “offensively” to prevent a defendant from relitigating issues resolved in an earlier case
o HELD Shore couldn’t have joined case 1, D had
incentive to litigate case 1, procedural opportunities are the same, and there are no prior inconsistent judgments. Offensive non-mutual issue preclusion is OK, Parklane can’t litigate the issue of their fraudulent statements
92
Court said offensive non-mutual issue preclusion is OK, but it’s up to the district court’s discretion based on:
(1) Did P avoid case 1 for tactical reasons (trying to get the benefit of P’s victory without the risk of loss)?
o If case 1 was filed in CA and P2 wants to file in NJ, that might not be tactical avoidance
o Shore couldn’t have joined here because the SEC brought the case as an enforcement action
(2) Unfairness – D must have an incentive to litigate case 1 (stricter standard than issue preclusion)
o If case 1 is for small damages, D may have little incentive to litigate, especially if future suits are not foreseeable
o Here, the future suit was absolutely foreseeable, and there’s a strong incentive to litigate in case 1 anyway
(3) Insufficient procedural opportunities in case 1
o Where the second case gives D procedural opportunities unavailable in the first action that could cause a different result here, it may be unfair to bind him
o If case 1 is in an inconvenient forum and D couldn’t engage in full-scale discovery
o Courts are unclear on how important a jury trial in case 2, unavailable in case 1 is
(4) Prior Inconsistent Judgmentso If D wins first 10 cases then loses
the 11th, 11 seems like an anomaly and it may be unfair to bind D to that anomalous judgment
93
o Where there are multiple potential plaintiffs (i.e., airline crash where 300 people die), most commentators say let 5-10 cases go through before precluding the D
6. Exceptions & Federalism There was no ability to appeal The issue is one of law and
o Actions involve unrelated claims ORo Law has changed between cases
Jurisdictional/procedural differences between courts warrant new determination
Burden of proof has shifted against party asserting Clear and convincing need for new determination
because:o Potential adverse impact on public interest ORo It wasn’t sufficiently foreseeable that issue would
arise in new context ORo Because of conduct of adversary or special
circumstances, party in first case didn’t have adequate opportunity for full and fair adjudication
94
95
V. APPEAL Mechanisms by which judgments are examined There’s no federal constitutional right to an appeal, but federal
and state courts have mechanisms for it Justifications :
Appellate courts provide a means of insuring the law is interpreted correctly/uniformly
Provide means for ongoing development and evolution of law in common law tradition
Heighten legitimacy and acceptability of judicial decisions Provide means for the institutional sharing of judicial
responsibilities for decisions Fundamental element of procedural fairness
Timing Notice of appeal must be filed with district court within 30
days after entry of judgment or order from which the appeal is taken. Limit is 60 days when the US is a party
The district court determining and assessing costs does NOT extend the time
It runs from the date judgment was entered Time requirement is jurisdictional and CANNOT be
waived Filing an appeal does not suspend the effect of the
judgment – sometimes you need to post a bond guaranteeing that the judgment will be paid if you lose the appeal
Standard of Review on Appeal How much deference is given to trial court
Issues of Law De Novo – No deference to trial court Example – JMOL
Procedural Issues Abuse of Discretion – most deferential standard
Appellate court could completely disagree with the trial court, but will not reverse as long as trial would was within a reasonable range
Example - New Trial, motions to transfer, discovery rulings, scheduling
Factual Issues decided by the judge Clearly Erroneous (Rule 52)
96
Appellate Court, after reviewing evidence, is left with a definite and firm conviction that a mistake has been committed
More deferential than most rulings, but less deferential than abuse of discretion
Factual Issues decided by a jury These are NOT directly appealable, but
instead are appealed through judge’s denial of either JMOL or New Trial motions. Not appealing verdict per se, just judge’s denial of motions
JMOL – De Novo (is evidence legally sufficient?)
New Trial – Abuse of Discretion
A. Jurisdiction
1. 28 USC §1291o Standard rule – No appeal until a final judgment
28 USC §1291 – Appeals court has jurisdiction from all FINAL decisions of district courts
But many decisions made in course of litigation are “interlocutory” - before the end of case
A motion to dismiss or for Summary Judgment (if granted) is FINAL it’s appealable
2. Collateral Order Rule Court-made Doctrine - Three prong test from
Cunningham: (1) Important Issue (2) Separate from the merits of the case (3) Effectively unreviewable on appeal
Cohen v Beneficial Loan – Did the NJ requirement in shareholder derivative suit apply in Federal Court?
Trial court said no Important issue
o Whether NJ or Federal rule applies is a big issue that has an impact on other shareholder derivative suits
Separate from the merits
97
o Issue of whether you had to file a bond was unrelated to merits of whether there was a cause of action for the shareholders
Decision unreviewable on appealo If this matter can only be
appealed after final judgment, the case has been heard without the posting of a bond (this would defeat the purpose of the bond requirement, which is to show that party bringing suit is willing to put bond up front). Therefore, making the argument on appeal is not good enough.
Examples: Immediately Appealable
Denial of a government immunity suit under 11th Amendment IS immediately appealable because the whole purpose of the amendment is to protect state from cost/burden of trial
Order staying a federal court action pending resolution of a parallel state case IS immediately appealable because the state judgment would be binding on the federal court
Not Immediately Appealable Orders granting/denying motions to
disqualify counsel are NOT immediately appealable
Denial of a government immunity suit under 11th Amendment IS immediately appealable because the whole purpose of the amendment is to protect state from cost/burden of trial
Decision to decertify a class action is NOT immediately appealable even if it may be a “death knell” to plaintiffs because then it would turn on a case-by-case inquiry and court doesn’t like that
98
Denial of dismissal for lack of PJ is NOT immediately appealable because it’s a right to not have judgment entered against you in the wrong forum, not the right to defend the case
a) Cunningham v. Hamilton County §1291 says appeals only of final judgments. It
will also permit jurisdiction over appeals from a small category of orders that do not terminate litigation. Decisions that are: (1) Conclusive, (2) Resolve important questions separate from the merits, AND (3) Effectively unreviewable on appeal from the final judgment in the underlying action
o FACTS Attorney violated discovery orders, got
sanctions, and couldn’t work on the case anymore. He appeals the sanctions immediately, trying to use the collateral order rule
o ISSUE Whether an order imposing sanctions on an
attorney is a final decision o HELD
Sanctions order is NOT a final decision under §1291 and is NOT immediately appealable
§1291 says appeals only of final judgments. It will permit jurisdiction over appeals from a small category of orders that do not terminate litigation. Decisions that are:
(1) Conclusive Sanctions order was conclusive, OK
(2) Resolve important questions separate form the merits
Sanctions order is NOT separate from the merits, it’s “inextricably intertwined” with the merits because evaluation of the appropriateness of sanctions requires appellate court to inquire into importance of information sought and honesty of response
To appeal you’ve have to look to the merits of the case
99
(3) Effectively unreviewable on appeal from the final judgment in the underlying action
It is reviewable on appeal from final judgment because unlike witnesses, there’s an “identity of interest” between lawyer and client;
It’s not a contempt order, which is automatically appealable because the non-party (lawyer’s) injury may be impossible to repair otherwise
Policy reasons - this can prolong litigation Also, to permit an immediate appeal from
a sanctions order would undermine the purpose of the sanctions rule (37(a)) which was designed to protect courts and opposing parties from delaying/harassing tactics during the discovery process
B. Exceptions to Final Judgment Rule 54(b) – If some claims (or all claims for some parties)
have been resolved, but there are still some pending claims such that the suit as a whole is still going (no “final” judgment), you can sometimes get an appeal on the things already decided, IF:o Multiple claims/parties involvedo Final judgment on less than all claims/parties has been
enteredo No just reason for delay (according to district court)
As in, hardship would result from delay Your argument is better here if a party could be done
with the case entirely right now, if the appeal is allowed
o Express entry of judgment on those claims What is a “claim” here? Not well-defined, apparently.
o It is possible that something that would be one claim under a “same transaction or occurrence” analysis would be multiple claims for Rule 54(b) purposes.
o For example, of P sues D for breach of contract, and D countersues with an antitrust action, that probably is not a “same claim” for Rule 54, even if it does arise out of same transaction
Petrohunt factors for same claim in this context: Degree of factual overlap
100
Whether separate causes of action depend upon proof of different facts or have different burdens of proof
Whether the application of res judicata considerations suggest that the claims are linked
Whether the multiple relief is for the same injury
§1292(a) – Injunctionso Decisions granting, modifying, or denying injunctions
are exception to final judgment rule because it’s extraordinary equitable relief. A party will be irreparably harmed without equitable relief
§1292(b) – Discretionary Appealso If a judge entered an order, otherwise unappealable
(i.e., denial of a motion to dismiss) and there’s certification by trial judge that the issue is a controlling question of law with a substantial ground for difference of opinion, and will encourage rapid disposition of the case, then the Court of Appeals has discretion to take the case
Safety valve to quickly resolve recent issues, but requires discretion of trial judge and appellate court
Example – Title 7 of Civil Rights Act of 1964 – Controlling Question of Law
o Did it apply to disparate payment of jobs?
Substantial ground for difference of opiniono Something debated in courts
Materially advance the ultimate termination of litigation
o Argument is that this will resolve the case quicker – saves effort of conducting full trial, proving women nurses were highly trained, paid less, etc., only to find out that T7 doesn’t apply
Appellate court has discretion to accept or reject appeal
o Mandamus Common law writ, been available for a while as
an appellate mechanism Remedy of last resort – VERY rare!
101
Unavailable on issues for which trial judge has discretion; only where trial judge has no discretion
o §1291(e) (§2072(c) of Rules Enabling Act) Allows SCOTUS to create exceptions to the final
judgment ruleo NOTES
Discovery orders ordinarily are NOT final decisions for the purposes of §1291. Difficult to show they’re interlocutory appeals under §1291(b)
The most effective way to appeal a discovery order is to defy it and be held in contempt, as in Hickman v. Taylor, but this is obviously risky!
1. La Buy v. Howes Leather Company Common-law writs of mandamus, like equitable
remedies, may be granted or withheld in the sound discretion of the court.
FACTS o The Petitioner, a United States District Judge
asserted that the two cases had been burdensome, in that many hearings were conducted on preliminary pleas and motions.
o The Petitioner asserted that it had taken a long time for the case to get to trial and asked the litigants if they could agree to have a Master hear the case.
o In chambers the next day, the District Judge made the decision himself that the case would be referred to a Master. The orders declared that the court had a heavily congested calendar and that exceptional circumstances existed to warrant the references to the Master.
The Master was to take the evidence and report it to the Court along with his findings of fact and conclusions of law.
102
o When the Petitioner refused to vacate the references, the mandamus actions were filed in the Court of Appeals seeking issuance of the writs ordering the Petitioner to vacate.
o The Court of Appeals held that the judge refused to try the cases in due course and that the orders were beyond the court’s authority under 28 U.S.C. Section: 1651(a).
ISSUE o Whether the Court of Appeals has the power to issue
writs of mandamus to compel a district Judge to vacate his orders entered under Federal Rule of Procedure (FRCP) Rule 53(b), which refer antitrust cases for trial before a Master.
HELD o Opinion of the Court, J. Clark
Writs of mandamus should be resorted to only in extreme cases. In this case, the District Judge was well informed to the nature of antitrust litigation – his excuse of court docket congestion in itself was not an exceptional circumstance to warrant reference to a Master. Common-law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court. Affirmed.
o Dissent, J. Brennan The Court seriously undermined the long-
standing statutory policy against piecemeal appeals. The All Writs Act does not confer an independent appellate power in the Courts of Appeals to review interlocutory orders.
C. Discovery Orders & MechanicsD. Scope of Review
o The Appellate process isn’t designed to remedy all mistakes at trial court level. Purpose is to ensure the results below (judgment entered) is correct
o 4 General Rules (1) Error must be on the record in order to appeal
(because that’s what appellate court evaluates) (2) You must object to an error on the record in order
to preserve the appeal Give trial judge/parties time to correct their alleged
mistake
103
(3) May not raise issues for the first time on appeal – if it’s not raised it’s waived
(4) You may NOT appeal harmless error Even where there is error, appellate court won’t
reverse unless error materially affected the outcome Test for determining whether an error is
harmlesso If the court had decided the issue the
other way, would it have effected the decision.
o If NO, then it is a harmless error that cannot be repealed.
o If YES, then it can be repealed because it materially effected the outcome
The winning party may not appeal
1. Anderson v. Bessemer Findings of fact shall not be set aside unless clearly
erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses, such that when there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.
FACTS o The Respondent sought a new Recreation Director.
The Petitioner was the only woman to apply for the job. A five-member committee interviewed the eight applicants and chose a male. The Plaintiff sued under Title VII of the Civil Rights Act of 1964 (the Act) alleging discriminatory intent.
o After a 2-day trial, during which the court heard testimony from the Petitioner, Mr. Kincaid, the successful applicant and the five members of the selection committee, the court issued a brief memorandum of decision setting forth its finding that Petitioner had been denied the position on account of her sex.
o The Court of Appeals for The Fourth Circuit reversed, holding that the district court’s crucial findings were clearly erroneous. The Supreme Court of the United States (Supreme Court) granted certiorari.
ISSUE o What is the appropriate standard of review of a trial
court’s findings of facts?
104
HELD o The Supreme Court reversed because it was
convinced that the Fourth Circuit misapprehended and misapplied the clearly erroneous standard.
o A district court’s finding of discriminatory intent in an action brought under the Act may be overturned on appeal only if it is clearly erroneous.
Because a finding of intentional discrimination is a finding of fact, the standard governing appellate review is that set forth in 52(a) ,
Findings of fact shall not be set aside unless clearly erroneous
Due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.”
When there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.
![Procedure … · Web viewINTRODUCTION TO THE CIVIL PROCESS[1-4]-In our system, judges are “umpires”-Civil procedure is about dispute resolution-the doctrine in civil procedure](https://static.documents.pub/doc/80x56/5afe77637f8b9a864d8effc9/procedure-web-viewintroduction-to-the-civil-process1-4-in-our-system-judges.jpg)
![CIVIL & CRIMINAL PROCEDURE NOTES · [CIVIL & CRIMINAL PROCEDURE NOTES] CONTENTS CIVIL PROCEDURE NOTES LAWS5003 Semester One, 2016 Journal Articles Case Readings CIVIL PROCEDURE](https://static.documents.pub/doc/80x56/5b65f5857f8b9a1f738c5ca6/civil-criminal-procedure-notes-civil-criminal-procedure-notes-contents.jpg)
