Slim Civpro Outline

8/3/2019 Slim Civpro Outline

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CIV PRO

Step # 1: ADR - Determine whether or not there is a need to sue. (AttemptNegotiation)

American Rule: all parties bear their own costs of litigation unless those costs areshifted either by a provision of a contract or by a statute.

Step # 2: Forum Selection

Which State? Which Court, State or Federal?

Court must have both Personal Jurisdiction and Subject Matter Jurisdiction.

Personal Jurisdiction : must have had a significant connection to the defendant.

The defendant must have reached out to the forum. Subject Matter Jurisdiction : State courts - all issues, state or federal.Federal courts - limited subject matter jurisdiction.

Federal Courts(1) Federal Questions:(2) State law questions - diversity of citizenship and the suitinvolves more than $75,000.

Step # 3: File the Complaint (Lawsuit) and other Pleadings

Complaint: commence the lawsuit - plaintiff must file a complaint. (Fed. R. Civ. P. 3)

Elements of a Complaint:

1. Claim (Fed. R. Civ. P. 8(a))2. Special Matters (Fed. R. Civ. P. 9)3. Alternative theories of recovery (Fed. R. Civ. P. 8(e)(2))4. Must be Legally and Factually Sufficient (Fed. R. Civ.P. 11)

Requirements for a Complaint or any other claim for relief(Fed. R. Civ. P. 8(a))

A pleading which sets forth a claim for relief, shall contain:(1) a short and plain statement of the grounds upon which thecourts jurisdiction depends(2) a short and plain statement of the claim showing that thepleader is entitled to relief; and(3) a demand for judgment for the relief the pleader seeks.

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Pleading to be Concise and Direct; Consistency (Fed. R. Civ. P. 8(e))

A party may set forth two or more statements of a claim or defense alternatively orhypothetically,

Under Rule 8(e)(2):1. Plaintiffs can assert as many different theories of liability as they want as longas they are legally sufficient.2. You can testify to one set of facts at trial and you can pursue all theories ofliability so long as you do not commit perjury.

3 Heightened Specificity Requirements for Pleading (Fed. R. Civ. P. 9)

1 (1). Pleading Fraud or Mistake Rule 9(b)

2 (2).Special Damages Cases Rule 9(g)(3). Situations in which Congress imposes heightened specificity requirements in a

specific federal statute

Dismissal of Actions (Fed. R. Civ. P. 41)

Notice Dismissal - Plaintiff can dismiss a case without prejudice at any timebefore the defendant files an answer or a motion for summary judgment. Rule 41(a)(1)(i)

You can only file a notice dismissal once and still be able to re-file the case. Ifyou do it again, it is done with prejudice and you cannot re-file the case.

A rule 12(b)(6) Motion is not a motion for summary judgment and therefore, a

notice dismissal may be filed after a 12(b)(6) motion.

Stipulation of Dismissal a case can be dismissed without prejudice at anytime (even after a notice dismissal has once been filed) as long as a stipulation issigned by all parties.

We allow Plaintiffs to dismiss without prejudice by stipulation as many times asthey want.

Involuntary Dismissal - The defendant may when plaintiff (1) fails to prosecute(remained dormant for a long time) or (2) fails to comply with an order of the court.

Rule 41(b) In cases of involuntary dismissal, unless the Courts specify otherwise, thedismissal acts as an adjudication upon the merits and therefore cannot be re-filed (i.e.it is dismissed with prejudice). It cannot be re-filed (Res Judicata).

Difference between a Pleading and a Motion:

(1) Motions are addressed to a court. Ask to do something.(2) A pleading is a position statement.

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DEFENDANTS RESPONSES TO COMPLAINT

(1). File a Pre-answer Motiona. Motion under Fed. R. Civ. P. 12(b)b. Motion for more Definite Statement (Fed. R. Civ. P.12(e))

c. Motion to Strike (Fed. R. Civ. P. 12(f))(2). File an Answer (Fed. R. Civ. P. 8(b), (c), and (d))

Defenses and Objections - Defendants Pre-Answer Motions (Fed. R. Civ. P. 12)

Time limits to respond (Rule 12(a)) - Twenty (20) days to file an answer to thePlaintiffs complaint. However, if you waive service of process under Fed. R. Civ. P. 4,then you have 60 days to file and answer

Pre-answer defenses (Rule 12(b))a. Lack of subject matter jurisdiction

b. Lack of personal jurisdictionc. Improper venued. Insufficiency of Process (technical things that make the summonsineffective)e. Insufficiency of Service of Process (improper delivery of summons)f. Failure to state a claim upon which relief can be grantedg. Failure to join a party under rule 19

(We are mainly concerned with a, b, c, and f)

Motion for a more Definite Statement (Rule 12(e)) - the defendant needs moredetail or facts in order to admit or deny the allegations

Motion to Strike (Rule 12(f)) - Scandalous or impertinent and is not necessary tothe lawsuit

Motion for Judgment on the Pleadings (Rule 12(c)) - This is not a pre-answermotion. After the pleadings are filed, has same affect as a motion for summary judgmentunder rule 56.

Consolidation of Defenses in Motion (Rule 12(g)) - ONE SHOT RULE youget one shot at filing a pre-answer motion.

Waiver or Preservation of Certain Defenses Rule 12(h)

Rule 12(h)(1) Defenses based on Personal Jurisdiction, Improper Venue, InsufficientProcess, and Insufficient service of Process are waived forever if they are not (a) includedin a pre-answer motion or, if no pre-answer motion is filed, (b) they are not included inthe answer.

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Rule 12(h)(2) Provides exceptions to Rule 12(g) for the following favored defenses:Failure to State a Claim on which relief can be granted, Failure to Join a Party, Failure tostate a Legal Defense. These defenses can be made in any pleading (including answer),in a motion for judgment on the pleadings, or a trial.

Rule 12(h)(3) Allows for objections based on lack of subject matter jurisdiction at anytime by any party, including the court (sua sponte). Subject matter jurisdiction can beraised at any time.

The Defendants Answer (Fed. R. Civ. P. 8(b), (c), and (d))

The Answer requires 2 things (Rule 8(b)&(c))

(1). Respond to the Allegations in the Complaint - 3 Ways to Respond to Allegationsa. Admitb. Deny

c. Lack Sufficient Evidence to Admit or Deny (has same effect as adenial)

If only part of the allegation is true, then break the allegation down.

Under Rule 11, if you have reasonable access to the information or the matteris public record, then you cant claim that you lack sufficient evidence toadmit or deny. You have to act in good faith.

(2). Assert any Affirmative Defenses - An Affirmative Defense is a legal justificationthat a party can use to escape liability.

Rule 8(c) provides a list of 19 affirmative defenses that can be used. This listis not exhaustive. You can assert anything that you claim is a legaljustification.

Default and Default Judgment (Fed. R. Civ. P. 55(a), (b), & (C)

Default occurs when one has a duty to respond to a pleading but fails to do so. There is a 2-step process under Fed. R. Civ. P. 55(a) & (b).

Entry of Default (Fed. R. Civ. P. 55(a)) the party who is not in default provides

the court clerk with an affidavit stating that the other party is in default.

Default Judgment (Fed. R. Civ. P. 55(b))a. By Clerk: Only when plaintiff has not appeared and

the sum is certain. (55(b))b. By Court: All other situations (55(b))

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Setting Aside Default (Fed. R. Civ. P. 55(c)) - entry of default under rule 55(a)set aside by a motion to the Court showing good cause, lenient standard.

Court will generally find that good cause has not been met in the following 3

scenarios:

a. The party in default would not have a valid defense anyway.b. The defaulting party intentionally refused to comply. Thedefault was intentional and not due to any misunderstanding or ignorance in the law.c. The plaintiff can show that he will be prejudiced if the defaultis set aside (i.e. he will be materially harmed in some way). One Example: He will beprevented from doing something that he otherwise would have been able to do hadthe defendant not defaulted)

Setting Aside Default Judgment (Fed. R. Civ. P. 55(c) and 60(b)) - The DefaultJudgment can be set aside by showing good cause (rule 55(c) and complying with Rule60(b).

Amendments to Pleadings and the Relation Back of Amendments (Fed. R. Civ. P. 15(a) &(b), & (c)

Parties have the right to amend once as a matter of course when (a) theresponsive pleading has not been served or (b) if no responsive pleading is required andthe action has not been placed upon the trial calendar, any time within 20 days after thepleading was served. In all other situations, permission is required from the opposingparty or the Court. (Rule 15(a))

The court will grant permission when justice so requires. Which is a lenient

standard. The Court will grant permission to amend unless:(1) The amending party wouldnt win on that amendment.

(2) It is obvious that the party seeking permission is only

amending in order to further delay the proceeding or has purposely

disobeyed or ignored the Court.

(3) There would be prejudice to the opposing party.

Rule 15(c) because if the amendment cannot relate back, the amending

party would not win and therefore the amendment will not be granted.)

Amendments can be made to conform to the evidence presented at trial . (Fed.

R. Civ. P. 15(b)) Any evidence presented is admitted unless it is objected to because thatevidence doesnt correspond to the pleadings

Relation Back of Amendments (Rule 15(c)) An amendment to a pleadingwill be allowed to relate back or take effective as of the date on which the originalpleading was filed under the following circumstances.(1). The amendment is permitted to do so by the state law (Rule 15(c)(1))

~ OR ~

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(2). If the new claim or defense pleaded in the amendment arose out of the conduct,transaction, or occurrence set forth or attempted to be set forth in the original

pleading. (Rule 15(c)(2))~ OR ~

(3). If you are amending to change a party against whom relief is sought or add a

new party against whom relief is sought, and the following requirements aresatisfied:

a. The provisions of 15(c)(2) are satisfied;b. Within the time limit provide by Rule 4(m), the party to be

added must:1. have received notice of the institution of the action sothat the party will not be prejudiced in maintaining a defense on themerits; (He had proper notice that the suit was filed) Rule 15(c)(3)(A)

- AND -2. know, or should have known that, but for a mistakeconcerning the identity of the proper party, the action would have brought

against him. Rule 15(c)(3)(B)

Adding New Parties: New parties cannot be added unless the requirements under Rule15(c)(3) are met. Be sure and address the fact that the provisions of 15(c)(2) must bemet under 15(c)(3) and that the courts apply different standards in concluding what

is the proper conduct required under 15(c)(2) and what is a mistake under

15(c)(3)(B).

Signing of Pleadings, etc.; Representations to the Court; and Sanctions (Fed. R. Civ. P. 11)

Signature required (Rule 11(a))

Representations to Court (Rule 11(b)) the attorney or pro se litigant is vouchingfor its contents by certifying that after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose such as to harass,

cause delay, or increase costs of litigation;

(2) all legal contentions are supported by the law or a non-frivolous

argument for changing the law; (Legally Sufficient)

(3) all factual contentions have evidentiary support or are likely to have

evidentiary support after a reasonable opportunity for discovery; (Factually

Sufficient)

(4) the denials in an answer, etc. can be supported by the evidence.

You do not have to withdraw things from a pleading that you later find out are untrueafter the pleading is filed. However, you cannot not continue to later advocate thatparticular claim or fact.

Sanctions (Rule 11(c)) If, after notice and opportunity to respond, the Courtdetermines that Rule 11(b) has been violated, then it may impose sanctions on theattorney, law firm, or party subject to the following conditions:

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(Remember to be sure and establish that there is a Rule 11(b) violation before talking about sanctions.)

Sanctions can only be initiated by (a) a motion from the other party or by (b) a showcause order issued by the Court (judge).

(A) If initiated by Motion of the opposing party, the motion must

1. be made in a totally separate document (i.e. it cant be included in anotherdocument);

2. itemize the specific Rule 11(b) violation(s) alleged; and3. be served upon the violating party at least 21 days before it is filed with

the Court (Safe Harbor Provision) The violating party has 21 days to curethe alleged Rule 11(b) violation and if, and only if, that violation is notcured within 21 days, then the motion can be filed with the court.

(B) If initiated by the Court (judge), the judge must

1. issue an order to the violating party itemizing the specific allegedviolations and ordering the violating party to show cause why he has not

violated rule 11(b). (Show Cause Order)There is no safe harbor rule when the court initiates the sanction process.

Sanctions must be limited to what is necessary to deter repetition of such conductby others similarly situated. Anything more is excessive and cannot be sustained.Sanctions can be non-monetary or monetary.

(A) Non-Monetary Sanctions : writing a letter, ordering a lawyer toattend a CLE on ethics, prohibit practice in a particular court, etc.(B) Monetary Sanctions : A fine paid to the court or a payment ofopposing legal fees incurred in defending the motion or pleading that

violates Rule 11.

3 Limitations on Attorney Fees as Monetary Sanctions

1. Can only be awarded when sanctions are initiated by the opposingparty on motion (i.e. they cannot be awarded when initiated on Courtsinitiative).

2. Can only consist of the fees and expenses incurred as a direct result ofthe Rule 11 violation.

3. The fees must be reasonable.

2 Things Court cannot do with Sanctions

1. Court cannot impose monetary sanctions after the parties have settledthe case or the case has been voluntarily dismissed.

2. Court cannot impose monetary sanctions against the party who isrepresented for a violation of Rule 11(b)(2) (i.e. failing to know thelaw). It can only sanction the attorney for not knowing the law.However, if the party is acting pro se, then he is not represented andcan be sanctioned for violating Rule 11(b)(2). ~VERY IMPORTANT~

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Not Applicable to Discovery (Rule 11(d)) Rule 11 does not apply to discovery.Rules 26(g) and 37(a)-(d) provide for sanctions in Discovery.

There must be a written document filed with the court for Rule 11 to apply.

Go through Rule 11 Step-by-Step. Work through and address each section.

PROCESS USED TO SOLVE RULE 11 PROBLEMS OE

(1). Is there a document that is presented, or later advocated, to the court? (Rule 11(a))

(2). Was it signed by the attorney or pro se litigant? (Rule 11(a))

(3). Was there a violation of Rule 11?

3 The attorney or pro se litigant is vouching for the documents contents by

certifying that after an inquiry reasonable under the circumstances:(1). it is not being presented for any improper purpose such as to harass,cause delay, or increase costs of litigation; (11(b)(1))

(2). all legal contentions are supported by the law or a non-frivolousargument for changing the law; (Legally Sufficient) (11(b)(2))

(3). all factual contentions have evidentiary support or are likely to haveevidentiary support after a reasonable opportunity for discovery; (Factually

Sufficient) (11(b)(3))

(4). the denials in an answer, etc. can be supported by the evidence. (11(b)(4))

(4). Were the Sanctions properly initiated by the party or by the court?

(A). If initiated by Motion of the opposing party, the motion must (11(c)(1)(a))1. be made in a totally separate document2. itemize the specific Rule 11(b) violation(s) alleged; and3. be served upon the violating party at least 21 days before it is filed with the

Court (Safe Harbor Provision) The violating party has 21 days to cure thealleged Rule 11(b) violation and if, and only if, that violation is not curedwithin 21 days, then the motion can be filed with the court.

(B). If initiated by the Court (judge), the judge must (11(c)(1)(b))1. issue an order to the violating party itemizing the specific alleged violations

and ordering the violating party to show cause why he has not violated rule

11(b). (Show Cause Order)There is no safe harbor rule when the court initiates the sanction process.

(5). If awarded, did the court issue an order awarding the sanctions that specifies theconduct determined to constitute a violation of Rule 11 and explaining the basis for

the sanction? (11(c)(3))

(6). If monetary sanctions were awarded, were they proper?

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(a). Were they excessive? (They must be limited to what is sufficient to deter similarconduct from others) (11(2))

(b). If the Court awarded Attorney Fees:a. It can only do so if sanctions were initiated by the party; (11(2))

b. Fees must be limited to those incurred as a direct result of the Rule 11violation; (11(2))c. Fees must be reasonable; (11(2))

(c). Court cannot award monetary sanctions against a represented party for aRule 11(b)(2) (Legal Insufficiency) violation! (11(2)(a))

(d). If Court initiated sanctions, it cannot impose any monetary sanctionsunless the show-cause order was issued prior to a settlement or voluntary

dismissal. (11(2)(b))

Pretrial Conferences; Scheduling; Management (Fed. R. Civ. P. 16)

Scheduling Conference (courts discretion) - Fed. R. Civ. P. 16(a)

Scheduling Order (mandatory) - Fed. R. Civ. P. 16(b)The scheduling order must be entered within 90 days after the appearance of a defendant and within 120days after the complaint was served on the defendant. Rule 16(b)(6)

Final Pre-trial Conference (courts discretion) - Fed. R. Civ. P. 16(d)

Final Pre-trial Order (if pre-trial conference is held) - Fed. R. Civ. P. 16(e)

Sanctions for Violations of Rule 16 - Fed. R. Civ. P. 16(f)

Step # 4: Discovery (Interrogatories, Depositions, etc.)

Information Gatheringa. Informal: client, clients documents and records, 3rd parties that youtrust;b. Formal: (DISCOVERY) opposing party, opposing partysdocuments, 3rd parties that you do not trust.

Discovery: formal information gathering

Methods of Discovery1. Mandatory Disclosures - Rule 26(a)2. Depositions Rule 303. Interrogatories Rule 334. Production of Documents and Things Rule 345. Medical Exams Rule 356. Requests for Admissions Rule 36

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Interrogatories, Production of Documents & Things, Medical Exams, and Admissions can onlybe used on parties only, not non-parties.

General Provisions Governing Discovery; Duty of Disclosure (Fed. R. Civ. P. 26)

Mandatory Disclosures - Fed. R. Civ. P. 26(a)A. Name, address, & phone # of all witnesses that you may use to support

your case;B. Documents that you may use to support your case;C. Calculations of any Damages if you are claiming damages;D. Copies of any insurance agreements that could be used to satisfy thejudgment if you lose;E. Categories of cases exempt from mandatory disclosure.

There is no way to get out of mandatory disclosures. Mandatory Disclosures must be made within 14 daysafter the Rule 26(f) conference or, if a party was joined after said conference was held, then they must bemade within 30 days after being served or joined. All information available must be disclosed at therequired time and anything obtained later must be supplemented.

Mandatory disclosures must be supplemented at any time when further informationbecomes available - Fed. R. Civ. P. 26(e)

Depositions upon Oral Examination (Fed. R. Civ. P. 30)

When depositions may be taken and when leave (subpoena or courts

permission) is required. - Fed. R. Civ. P. 30(a)1. All parties to the litigation can be deposed without a subpoena and any3rd party witness may be deposed but they do not have to show up voluntarily. Youcan subpoena them under rule 45 and compel them to show up.

2. You may only depose people with knowledge as required by Rule 26(i.e. any witness that either side has mandatorily disclosed under Rule 26); You canonly take a total of 10 depositions unless given permission to take more by the courtor stipulated by the opposing party; and Each deposition may only last 1 day or 7hours total unless given permission to take longer by the court or stipulated by theopposing party.

The deposing party must send out a Notice of Examination - Fed. R. Civ. P.30(b)

1. The notice must be sent to the person who is going to be deposed. Itmust include the date, time, and place at which the deposition will take place. If

given to a party, the notice is sufficient. If given to a 3rd

party witness, it must also beaccompanied by a subpoena issued by the court under Rule 45.

2. Depositions can be taken by court reporter or video.3. A court reporter or officer of the court under Rule 28 must be present.4. Depositions can be taken anywhere, in any building or place that is convenient.

Role of the Opposing Lawyer whose Client is being Deposed

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1. Make Objections for the Record, which pertain to the form of thequestion (i.e. the question assumes facts not in evidence, it is vague, compound, etc.)THE WITNESS STILL MUST ANSWER. (If you are the attorney conducting thedeposition, always make the witness answer even though opposing counsel objected.)2. Make Objections based on Privilege or Subject Matter Limitations

You can Object and Instruct your client not to answer if, and only if:(a). You are protecting privileged information;(b). The court has previously determined that the subject matter inquired about is offlimits (subject matter limitation);(c). You are terminating the deposition to seek an order from the court limiting thesubject matter.

Interrogatories (Fed. R. Civ. P. 33)

Availability (Parties Only) (Rule 33(a)) - Without leave of the court orstipulation between the parties, a party may serve upon another party up to 25

interrogatories, which includes discrete subparts. They must provide their responseswithin 30 days. More interrogatories may be served and the response time may beenlarged with permission of the court or stipulation of the parties. They cannot be served before the Rule 26(f) discovery planning conference unless the serving party haspermission of the court or the parties have stipulated otherwise.

Answers and Objections Fed. R. Civ. P. 33(b)1. Each interrogatory must be answered separately and fully in writingunder oath;2. The answers must be signed by the party and objections must besigned by the attorney;3. Answers must be returned within 30 days unless agreed otherwise by

court order or stipulation between the parties;4. Grounds for objection (6 acceptable grounds by Rule 26(b)) must bestated specifically and, if objection is not made, it is waived unless failure to assert itis excused by the court;5. The interrogating party can then go the court and seek an order compelling you to answer, which will be granted if the judge deems the objectionimproper

Production of Documents and Things (Fed. R. Civ. P. 34)

Scope - Fed. R. Civ. P. 34(a)

1. A party may request that another party produce any document(s) or tangible things in his possession, custody or control that arent objected to;2. A party may request permission from the other party to enter uponland to inspect, test, photograph, etc. anything thereon.

Procedure Fed. R. Civ. P. 34(b)They cannot be served before the Rule 26(f) discovery planning conference unless the

serving party has permission of the court or the parties have stipulated otherwise.

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Responses must be returned within 30 days unless extended or shortened by thecourt or by stipulation of the parties. Only things that are in the possession, custody orcontrol need to be produced. Documents must be produced (1) as they are normallykept in business or (2) organized in a manner consistent with the request. You do nothave to make copies for the other side. So long as it is reasonable, you can force them to

come and inspect them where they are normally kept in business. If a party objects, thedocuments do not have to be produced unless later compelled by court order. Theobjecting party must state the objection and the basis for the objection (there are 6acceptable grounds for objection under rule 26(b)).

Persons Not Parties Fed. R. Civ. P. 34(c)A person who is not a party may also be required to produce documents or things but

they must be compelled to do so by subpoena under Rule 45.

Physical and Mental Exams (Fed. R. Civ. P. 35)

Order for Examination (Rule 35(a)) - A party or someone in the custody or legal

control of a party may be ordered by the court to undergo a physical or mental examwhen necessary. The order may only me issued upon motion and showing of good causeand it shall specify the date, time, place, manner, conditions, and scope of the exam. Nonparties cannot be forced to submit to an examination.

Request for Admissions (Fed. R. Civ. P. 36)

Request for Admissions (Rule 36(a)) - A party can request that another partyadmit any relevant matter in order to narrow the issues for trial. Answers must bereturned within 30 days unless expanded or limited by court or stipulation of parties. Ifthe party fails to respond, the matter is deemed to be admitted.

Effect of Admission (Rule36(b)) - Any matter admitted is conclusivelyestablished unless the court, on motion, permits the admission to be withdrawn oramended.

Scope of Discovery (Relevance and Objections) (Fed. R. Civ. P. 26(b)(1)) Information is onlydiscoverable if it is Relevant and Not Privileged!

Legal Relevance: anything that will tend to make a fact that is a part of any claimor defense asserted more or less true.

1. Legally relevant information does not have to be admissible at trial inorder to be discoverable.

2. A party can get information that is not relevant to a claim or defenseasserted if the court will enter an order expanding the scope of discovery.3. A party can also be restricted from getting information that is relevantto any claim or defense asserted if the court will enter an order restricting or limitingdiscovery under Rule 26(b)(2).

Objections to Discovery Fed. R. Civ. P. 26(b)(1)1. Information requested is not legally relevant (as defined above);

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2. Information is privileged (applies only to attorney-clientcommunications, not facts. Also, attorney communications with witnesses that iswritten down is work product, not privileged);3. Production is too expensive or burdensome;4. The party already has or had reasonable access to the requested

information but failed to get it;5. The cost of production outweigh the possible benefits6. Objection to form of the question (will only require the other party toclarify, etc. but the party will eventually have to answer).

The judges usually favor the discovering party on objections on the grounds ofrelevance.

If you withhold information based on Privilege, you must state so and generally

define the nature of the information and state the basis for the privilege. You cannot

freely withhold info. based on privilege without telling the other party that it is

being withheld. (Rule 26(b)(5).

3 Questions to address with Privilege: (1) Does a privileged relationship exist?(2) What is the scope of the privilege? And (3) Has the communication be preserved (e.g.if you voluntarily tell someone, the privilege is effectively waived. The communication isno longer privileged).

Work Product Privilege (Fed. R. Civ. P. 26(b)(3))

Scope: Discoverable materials are considered work product if they are:(a). Documents or Tangible things;(b). Prepared in anticipation for litigation;

(c). Prepared by or for (1) the party or (2) the parties representative or agent,including attorney.

Protection: Work Product is protected from discovery unless the discoveringparty can show (1) Substantial Need AND (2) Undue Hardship. HOWEVER, it is stillprotected if it contains mental impressions, conclusions, opinions, or legal theories of anattorney or other representative of the party concerning the litigation.

Substantial Need: determined by the Judge.Undue Hardship: the party cannot get the information any another way. Expense isnot a factor. Some Court will consider the possibility that a witness may lie andtherefore conclude that there is an undue hardship and force disclosure of notes fromwitness interviews.

Expert Witnesses (Fed. R. Civ. P. 26(b)(4))

Testifying Experts: Name and information must be provided as a mandatory disclosure.They must provide the opposing party with a report under rule 26(a)(2)(b) of their opinions,data, qualifications, etc. as part of the mandatory disclosure. After the opposing partyreceives the report, the expert can be deposed and anything provided to the expert, whetherprivileged or not, is freely discoverable because it serves as a basis for his opinion.

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Retained, Consulting Experts: Information does not have to be disclosed as a mandatorydisclosure and is only discoverable under exceptional circumstances, which means that it isimpractical for the discovering party to get facts or expert opinions on the subject by othermeans (i.e. he is the only expert in the field or you have retained all experts in the field).

Non-retained, Consulting Experts: Experts that you have talked to about your case but did

not hire or retain. More than likely they are the ones who disagreed with your case. Theirnames or other information are NOT discoverable.

Fact Witnesses who are also Experts: If the so-called expert was also a witness to thefacts, the facts or opinions he has are always freely discoverable as if he were any otherwitness to the facts. If the expert has knowledge of the facts, his knowledge of those facts isnot immunized from discovery regardless of whether he is or is not retained.

Signing of Disclosures, Discovery Requests, Responses, and Objections (Fed. R. Civ. P.26(g))

Every discovery response or disclosure has to be signed by the attorney or by the party, if

there is no attorney. By signing, the attorney or party certifies that to the best of the signersknowledge, information, and belief, formed after a reasonable inquiry, the request, response, orobjection is:

(a). consistent with the federal rules and warranted by existing law or a good-faithargument for the extension, modification, or reversal of existing law;

(b). not interposed for any improper purpose, such as to harass, or to cause unnecessarydelay or needless increase in the cost of litigation; and

(c). not unreasonable or unduly burdensome or expensive, given the needs of the case, thediscovery already had in the case, the amount in controversy, and the importance of theissues at stake in the litigation.

If the Court finds that a party has violated this rule, it may impose any sanction

that it deems appropriate on the violating party.

STEPS FOR SOLVING DISCLOSURE PROBLEMS OE

(1). Is the material in play? Must be either (a) a mandatory disclosure or (b) requestedunder the Rules of Discovery (Rules 32-36).

(2). Is it generally discoverable under Rule 26(b)(1) & (2)? Is it relevant and notprivileged? Can it be objected to under Rule 26(b)(2)?

(3). Is it protected as Work Product under Rule 26(b)(3)? Is it a document or tangible

thing? Was it prepared in anticipation for litigation? Can discovering party showsubstantial need and undue hardship? Is it protected anyway as an opinion, legal theory,

etc.?

(4). Does it fall within the Expert Restriction of Rule 26(b)(4)? All information shown to atestifying expert, including work product or attorney-client privileged information, is

discoverable because it serves as a basis for his opinion. If the expert is retained but nottestifying, then you only have to give the information up under exceptional

circumstances. Information regarding non-retained experts is not discoverable at all.

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In all cases, if the so-called expert was a witness to the facts, the facts and opinions

he has are discoverable as they would be for any other witness. Being an expert does

not immunize them factual discovery.

(5). Has, or can, a Motion been filed under Rule 37? If so, can Sanctions be imposedunder Rule 37(a)-(d) or under Rule 26(g)? Has a Motion been filed? Does a Motion

need to be filed? Are sanctions available? Have the predicates to the sanction been met?Were the sanctions imposed appropriate?

_____________________________________________________________________________

_

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DISCOVERY SANCTION RULES (not Rule 11 Pleading Sanctions)

Fed. R. Civ. P. # 26(g) 37(a) 37(b) 37(c) 37(d)

Nature of

Violation

FalseCertification Partial failure to respond.

The party responds but hisanswer has been so evasive ormisleading as to be construedto be no answer at all to part ofthe request.

Failure to comply with a Courtorder

Failure to makeAutomaticDisclosures,including failure tosupplement priormandatory or priorrequesteddisclosures.

Failure to Admit Complete failure torespond

Predicate(s) for

Sanctions

NoneMotion after good faithconferral

The Motion must contain acertificate certifying that themoving party made a good-faith attempt to contact theother party and resolve thedispute. If there is nocertificate, the court may notentertain the motion at all. Atany rate, if there was no goodfaith conferral, sanctions willnot be awarded if the moving

party prevails.

Only that there was a prior CourtOrder in place

None, except that itmust ultimately bedetermined orfound-out (e.g. theparty has to try touse it at trial andthus the other partyobjects because theinformation wasnever previouslydisclosed, etc.).

The party must provethe fact at trial andthen make a motionfor sanctions forfailure to admit thefact in the discoveryrequest.

Motion after goodfaith conferral.

The Motion must contain acertificate certifying that themoving party made a good-faith attempt to contact theother party and resolve thedispute. If there is nocertificate, the court may notentertain the motion at all. Atany rate, if there was no goodfaith conferral, sanctions willnot be awarded if the moving

party prevails.

Appropriate

Sanction

Anythingthe Courtdeemsappropriate

The loser has to pay theprevailing parties feesincurred in making ordefending the motionunless:

* If the movantprevails, there was nogood-faith conferral orthe non-disclosing partywas substantiallyjustified

* If the non-disclosingparty prevails, themovant made a goodfaith conferral and wassubstantially justified inmaking the motion.

The Court shall award expensesresulting from the failure tocomply unless the failure wassubstantially justified.

In addition, the Court may also:(a). Establish facts(b). Prohibit the party fromentering evidence to support oroppose a claim or defense;(c). Take action on the merits bydismissing a claim or defense orstriking something from apleading, etc.(d). Find the party in contempt

Preclusion from useat trial, expensescaused by the failureto disclose, and anysanction authorized

under (a), (b), or (c)of Rule 37(b).

All expenses and feesincurred in provingthe fact at trial.

All expenses and feesresulting from thefailure to respond andany sanctionauthorized under (a),

(b), or (c) of Rule37(b).

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Step # 5: Dispositive Motions (Motion for Summary Judgment)

Summary Judgment (Fed. R. Civ. P. 56)

Summary Judgment: the undisputed facts compel judgment for one party as a matter of

law.

If the non-moving party has any admissible evidence that, if believed, wouldsupport or prove his position, then summary judgment cannot be granted, unless there is avalid defense and the moving party has sufficient evidence to establish the defense.

Burden of Proof required to get Summary Judgment

Plaintiffs Burden: The Plaintiff has to have admissible evidence sufficient to proveor support at least an inference (circumstantial evidence) of all elements of her claimas required by the substantive law.

Defendants Burden: The Defendant has to show either (1) that the plaintiff lackssufficient admissible evidence to prove the elements of her claim, or (2) that he isentitled to summary judgment based upon an affirmative defense.

JUST BE ABLE TO RECOGNIZE THIS ISSUE:

In cases where the Defendant has no proof at all, the case may still go to the jurybecause the jury is free to not believe the plaintiffs evidence . However, in caseswhere the Plaintiff has no proof, the case will not go the jury because she cannotprove the elements of her claim (no prima facia case).

Material Fact: the facts that are material is defined by the substantive law.They are material if they are relevant to the elements or defenses required by the law.

Direct v. Circumstantial Evidence: The evidence can be either direct evidenceor circumstantial. Our system allows a party to rely on circumstantial evidence. So longas the circumstantial evidence supports an inference of a material fact, then the jury couldbelieve it at trial. Thus, a party can rely on circumstantial evidence to avoid summaryjudgment.

Direct Evidence: evidence that, if believed, it would directly establish the fact at issue by itself.Circumstantial Evidence: evidence that provides an inference that, if believed, would support afact at issue. It does not directly establish the fact by itself. It relies on inferences.

Evidence must be Admissible at Trial: Whether you are moving for or disputingsummary judgment, you must be relying on evidence that would be admissible if the casewent to trial. If the jury wouldnt be able to hear it at trial, then the judge will not hear itfor summary judgment purposes.

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STEPS FOR SOLVING SUMMARY JUDGMENT PROBLEMS OE

Primary SJ Question:

If this case sent to trial on the facts as we have them today, does it:(a). Support a finding for the Plaintiff;

If so, then the case should go to trial and SJ is not proper.

(b). Mandate a finding for the Plaintiff;

If so, then SJ should be granted for the Plaintiff.

(c). Mandate a finding for the Defendant.

If so, then SJ should be granted for the Defendant.

Steps used to determine whether the case falls within any of the 3 scenarios above:

(1). Is there a genuine, disputed material fact?

If not, then the case must mandate a finding one way or the other.

(a). Is the fact material (i.e. relevant to the substantive law)?If not, then the case mandates a finding one way or the other.

(b). Is the dispute genuine (i.e. could the jury permissibly credit either sidesevidence)?

If so, then the case will go to trial because credibility is a question for the

jury.

The disputed fact must be both material and genuine or the case will not go

to trial.

(2). Does the Plaintiffs admissible evidence support the elements of her cause ofaction (i.e. if the jury believed the evidence, could it prove all the elements of

her case)?

If not, then the case will NOT go to trial.

If so, then the case will go to trial unless the Defendants undisputed,

admissible evidence proves that he isnt liable due to an affirmative defense.

Step # 6: Trial (with or without jury)

Jury Trial of Right (Fed. R. Civ. P. 38)

Right Preserved: If you have a right to a trial by jury either under the 7 th

Amendment or as given by a United States statute, then that right is preserved. (Rule38(a))

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7th Amendment: Under the 7th amendment, you have a right to a trial by jury if:(1). The suit is for common law (legal relief, not equitable relief); and(2). The value in controversy exceeds twenty dollars ($20).

In determining whether or not the suit is for legal relief, the court looks at 2 things:

(a). The nature of the issue involved (not necessarily the cause of action).

(b). The Remedy sought (Most Important Part of the Analysis).Generally, if the remedy sought is monetary damages (except inrestitution cases), then the court will conclude that suit is for legal relief.

If the remedy sought is for non-monetary relief (includes restitution), such

as specific performance, then the suit is for equitable relief.

2 Claims one Legal and one Equitable: If there are 2 claims, one in law and

one in equity, then, so long as the jury trial was properly demanded, the legalclaim will be heard by the jury first and the judge will then decide the equitableclaim based upon the evidence presented at trial.

U.S. Statute: If Congress specifically included the right to a jury trial in a statute,then you have that right if the suit involves that statute.

7th Amendment doesnt apply to States: the 7th amendment does not extend tothe states through the 14th amendment because it does not involve a civil right.Therefore, if the federal court is hearing the case based upon its jurisdiction indiversity of citizenship cases (i.e. the case involves a state question, the parties arefrom different states and there is more than $75,000 at stake) then the court mustlook at the states constitution and statutes to determine whether or not there is

a right to a trial by jury. The Oklahoma Constitution provides for a trial by juryfor common law cases involving one hundred dollars ($100) or more.

Demand: In order to exercise your right to a jury trial, you must serve a Demandfor Jury Trial on the other party(ies) within ten (10) days of your receipt of theComplaint or Counterclaim and you must also file a copy with the court. (Rule 38(b)(1)&(2))

The Demand for Jury Trial will only be granted if the court determines that

you do in fact have a right to a jury trial under the 7

th

amendment or a U.S.statute. Any party can demand the jury trial so long as it is done within 10 days

but it will only be granted if the court determines that the party does in fact

have that right.

Judgment as a Matter of Law (JMOL) (Fed. R. Civ. P. 50)

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Once a party has been fully heardon an issue and the court concludes that there is noevidentiary supportsufficient to support a verdict in favor of the claim or defense, the court maygrant judgment as a matter of law. (Rule 50(a)(1))

Anyparty may move for a JMOL at any time before submission of the case to the jury so

long as the opposing partys evidence has been heard. The motion must fully specify the factson which the party is entitled to JMOL. (Rule 50(a)(2))

The party may move for JMOL immediately after opposing party presents his evidenceor immediately after all parties have presented their evidence (at the close of allevidence).

~Only a party may move for JMOL. The court will not enter JMOL sua sponte ~

If the party moves for a JMOL immediately after the close of all evidence, before the casegoes to the jury, and that motion was denied, the party may renew his motion for JMOL once

the jury returns a verdict. If the party does not move for JMOL after the close of all evidencebefore the case is submitted to the jury, he will NOT be able to do so after the jury renders itsverdict. The renewing party must have moved for JMOL after the close of all evidence . Itdoesnt matter if he did so at any other point in the trial. (Rule 50(b))

~Only a party may renew the motion for JMOL. The court will not do so sua sponte ~

In ruling on a motion for JMOL, the court uses the reasonable jury standard. He construesthe evidence in favor of the non-moving party and determines whether there is any evidentiarysupport sufficient for the jury to find in favor of the non-moving party. If he believes there is,then he will deny the motion for JMOL.

Courts are very reluctant to grant JMOL before the jury returns a verdictbecause they donot want to have to re-try the entire case again if the JMOL is reversedon appeal. Also, juriesdo not like to have their time wasted. Therefore, if he waits until after the verdict to grantJMOL, then if it is overturned on appeal, he can simply re-instate the jury verdict rather than re-try the case.

General Process for JMOL

(1). Plaintiff presents her evidence. After she rests, Defendant moves for JMOL.(2). If Defendants motion for JMOL is denied, he then presents his evidence. After he

rests, then all evidence is closed.(3). After all evidence is closed, either Plaintiff or Defendant may move for JMOL,

before the case is submitted to the jury.(4). If either, or both, parties motions are denied, then the case goes to the jury for

deliberation.

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(5). Once the jury returns its verdict, either party may renew his or her JMOL, so long ashe or she previously moved for JMOL at the close of all evidence. If not, then heor she may not renew the motion for JMOL at all.

New Trials (Fed. R. Civ. P. 59)

If (1) the jury renders a verdict that the court believes is against the weight of the evidence(i.e. he firmly believes the jury verdict was wrong), or (2) there is newly discovered evidencewithin 10 days of the verdict, or (3) there is misconduct by counsel, then the judge can grant amotion for a new trial. (Rule 59(a)).

Step # 7: Appeal

Function of Appellate Court: the appellate court review the lower courts decisions todetermine if the lower court made a material error (error which would or could effect the

outcome of the case) in its interpretation or application of the law, not facts.

Right to Appeal (28 U.S.C. 1291)

There is no Constitutional right to an appeal. However, 28 U.S.C. 1291 has been construedas granting parties the right to appeal.

Parties have the right to appeal in the following 3 scenarios:

(1). Final Judgment Rule: After a final judgment is entered in the District Court. (28U.S.C. 1291);

(2). Collateral Order Doctrine: the District Courts orders that are (1) conclusive, (2)resolve important questions separate from the merits, and (3) that are effectivelyunreviewable on appeal after final judgment is rendered may be reviewed on appealprior to the final judgment. All three (3) elements must be met!

(3). Interlocutory AppealsGranted by Congress: Generally, if the District Court grants aninjunction or certifies an order for immediate appeal, the order can be immediatelyappealed under 28 U.S.C. 1292.

Final Decisions of the District Court (28 U.S.C. 1291)

All final decisions can be appealedto the appropriate circuit court of appeals.

Summary Judgment: Summary judgment decisions may or may not be final judgmentdepending upon whether or not they are granted. The same goes for Rule 12(b)(6)Motions, Motions for Judgment on Pleadings, and Motions to Dismiss .

a. If DENIED, then it is not a final judgmentbecause the case goes on.

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b. If GRANTED, then it is a decision on the merits and thus a final decision. The casewill not go on if summary judgment is granted.

Must Actually Put you out of Court: a trialjudges refusal to certify a class action is notappealable as a final judgment. It is not a final judgment. The order must actually

terminate your ability to try the issue in courtin order to be classified as a final judgment.

Collateral Order Doctrine: some orders of the District Court can be appealed prior to the finaljudgment so long as they are:

(1) conclusive;(2) resolve important questionsseparate from the merits, and;(3) that are effectively unreviewable on appeal after final judgmentis rendered

All three (3) elements must be met!

Sanction Orders: Sanction Orders do not fall under the collateral order doctrine because,although they are conclusive, they are not separate from the merits and are reviewableafter final judgment.

Contempt Orders: do satisfy the collateral order doctrine. You can purposely get thelower court to find you in contempt under Rule 37 so that you can get an appeal of adiscovery issue, but it is risky.

Interlocutory Appeals provided by Congress (28 U.S.C. 1292)

(1). Injunctions are immediately appealable. 1292(a)

(2). District Court may certify an order for immediate appeal. 1292(a)

Required Criteria for Appeal of an Order certified by the District Court

(1). There must be an Orderin place;(2). There must be a controlling question to the lawsuit;(3). The controlling question must be a matter of law;(4). There must besubstantial ground for a difference of opinion;(5). Appeal must materially advance the ultimate termination of the lawsuit.(6). After certified, the appeal must be taken to the appellate court within 10 days.

Even if the order is certified for immediate appeal, the circuit court has the right

to refuse to hear the appeal until after a final judgment.

PROCESS FOR ADDRESSING APPEALS OE

1. Does the party have the right to appeal?

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a. Has there been a final judgment (i.e. is the party put out of court) (FinalJudgment Rule)?

b. Is the Order that is sought to be appealed a Collateral Order (CollateralOrder Doctrine)?

i. Is it conclusive? AND

ii. Is itseparate from the merits? ANDiii. Is it reviewable on appeal after final judgment?c. Is there an Interlocutory Appeal granted by Congress or an Order Certified

for Appeal by Congress?

i. Is there anInjunction (Interlocutory Appeal 28 U.S.C. 1292)?ii. Is there an Order Certified for Appeal by the District Court

(28 U.S.C. 1292)?

Requirements: It must be (1) an Order(2) involving acontrolling question (3) of lawand there must be (4)substantialground for a difference of opinion and (5) the appeal mustmaterially advance the ultimate termination of the lawsuit and (6)

it must be taken to the appellate court within 10 days.

2. If there is a right to an appeal, what is the appellate courts (Appropriate CircuitCourt of Appeals) role?

Appellate Courts Role: Review the lower courts decisions to determine if thelower court made a material error (error which did or could effect the outcome ofthe case) in its interpretation or application of the law, not the facts!

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