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Procedure Visual Aids Professor Crump, 2018

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CHAPTER 1: OVERVIEW

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Strawbridge v. Curtis Subject-Matter Jurisdiction: The Type of Case

This Court Can Hear •  The Flaw in the Case

Courts of Different Kinds •  State/Federal •  Trial/Appellate

Sources of the Law •  Constitutions •  Statutes •  Rules of Court •  Common Law •  Etc.

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Subject j? Personal j?

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Both Types of Juris Needed Subj. Matter J (Power Over Type of Case) + Personal J (Over This Individual) = Court’s Power

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A Simplified Briefing Method I. Facts (what happened) II. Holding (what the court did) III. Reasoning (principles)

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Wyman v. Newhouse: Personal Jurisdiction Newhouse → Fraudulently Enticed → Process Served; Default J. → Wyman: N.Y. Action on Fla. Judgmt

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Subjects This Course Will Cover •  Jurisdiction •  Pleadings •  Multiple Claims •  Discovery •  Summary J •  Case Managemt •  Trial •  Post-Trial •  Remedies •  Appeal •  ADR

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Sample Pleadings: What’s Wrong with the First 2? 1. “D is legally required to pay $100,000 to P.”

(No reason given.) 2. “D agreed to pay in year 2010, but P wants

paymt now.” (Not due. Complaint itself shows no right.)

3. “Note (attached) is payable, but D refuses to pay.” (OK.)

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About Pleadings, 2 Questions: - substance: if true, can plaintiff win? - information: is it enough?

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Standard for Dismissal of a Complaint: (1) Assume all facts true (2) Law Says P still can’t win

Required Information in a Complaint: (1) “reasonable notice” (“notice pleading”); (2) facts that show claim is “plausible”

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It’s Messy: Discovery

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Discovery: depositions interrogatories production admissions etc. More onerous than you’d dream.

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Discovery: Rule 26(b) (c) (1) “Proportional” to needs of case (2) “Relevant” (3) Not privileged

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Summary J: Rule 56 A “Paper Trial?” “no genuine issue of material fact”

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What Happens at Trial? •  Juror Examination •  Disqualifications, Challenges •  Opening Statement •  Evidence Presentations •  Motion for J as Matter of Law •  Argument of Counsel •  Judge’s Charge to Jury •  Verdict •  Judgment

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Judge’s Control of Jury •  Dismissal of Complaint •  Summary J •  J as Matter of Law •  Same, after Trial •  New Trial, Etc.

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Class Policies 1. Wonderful course 2. Absences–don’t tell (exception: long time) 3.  Unprepared-don’t tell 4.  Reading 5. Hold up hand-understand, move on 6. Speak audibly 7. Overcome your stage fright. This is law school. 8. Out-class assignments 9. “Anatomy” book 10. Practice exam; grade; unpreparedness and avoidance can affect. 11. Attendance 12. Doubled absences; excuse 13. Seating chart 14. Disability

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CHAPTER 2: PERSONAL JURISDICTION, VENUE

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Pennoyer v. Neff 1.  Territoriality; Phys. Power 2.  In-State Service 3.  In Rem: Seizure 4.  Out-of-State??

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Implied Consent? Defendant is citizen of Calif; No Tx contacts, but: appears in Tx & defends

Hess v. Pawloski How is it similar?

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International Shoe, Due Process: Sufficient contacts so juris is consistent w/traditional notions of fair play & substantial justice

Please know this!!

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Specific v. General Juris Specific juris: contacts, claim related General juris: requires systematic & continuous

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State-law issue: long arm 1.  laundry list 2.  limits Due Proc 3.  Hybrid

“. . . arising out of business done in the state”

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Hanson v. Denckla: DEL. – trustee mail FLA. – everyone interested in estate “purposeful advantage” and later, “reasonable anticipatn”

Reasonable anticipation The “purposeful availment” must be strong enough that D could “reasonably anticipate” being sued here.

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Burger King v. Rudzewicz 1.  contacts sufficient for fair play 2.  purposeful availment 3.  reas. anticipation 4.  specific-general 5.  commercial def, compelling balance of

convenience also: “targeted effects” test

The “Stream of Commerce” Issue •  What if defendant puts lots of products

in the stream of commerce, not knowing where they’ll end up?

•  Answer: by itself, that’s not enough.

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Daimler AG V Bauman •  For General Jurisdiction •  Contacts must be so substantial that D is

“essentially at home” in forum

•  Lesser Cases: Walden and Bristol-Myers

KEYSTROKE CONTACTS

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Shaffer v. Heitner Delaware transfer agent 3-way nexus: defendant, forum, litigation–fair

play test

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A Question about Shaffer State X – D has Bank Account State Y – All Other Contacts of D If P has judgmt obtained in State Y, can P sue in

State X to enforce?

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Other Jurisdictional Theories •  “Tag” Juris •  Consent Juris •  Contract Juris •  Nationwide Fed Service

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Two Ways to Challenge Jurisdiction: 1.  Don’t appear; attack juris when action on j

filed 2.  Move to Dismiss

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Service of Process—2 Issues: 1. Due Process (Notice . . . reas. calculated) 2. Compliance w/Governing Rule

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Rule 4, Service on an Individual 1. personal 2. agent 3. “leave with”

(a) dwelling or usual place/abode, (b) person of suitable age & discretn, (c) then residing

4. state-law methods

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Rule 4, Service on a Business Entity 1. state-law methods 2. officer; general or managing agent 3. agent authorized by apptmt or law

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“Substituted” Service Tx. Rule 106: 1. Prove impracticality of usual service 2. Judge may order any method reas calculated

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The Notice & Waiver Alternative equivalent to service duty imposed consequences extra answer time What’s not waived

90-day limit: The dangers?

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Beyond Jurisdiction: When There Are Many Places, Where? 1. Venue rules 2. 1404(a) transfer of venue

(a) “convenience of parties & witns”; (b) “interest of justice”; (c) “may” transfer; (d) to where “might have been brought”

3. Forum non conveniens (common law)

Atlantic Marine v. District Court First, why does a plaintiff choose one venue or another? Second, why seek transfer to a given forum? Third, what happens when a contract sets the forum?

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1404(a)--usual issues First issue: are jurisdictn & venue proper as

filed? Second: convenience; justice Third, Discretion

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Transfer . . . where? •  Discretion, but •  Only to where “might have been

brought” •  That is, district w/juris & venue (or

by agreement)

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Forum Non Conveniens when there are 2 separate procedural systems

example: Texas & California: U.S. & Scotland

not when among federal courts (then: transfer provision, instead)

HANDOUT

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Analyzing Law School Questions: here’s the KEY! • Principles (all) • Facts (all) • Conclusion (this comes last!) Concept isn’t rocket science But: requires discipline; unnatural to some

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Syllogism First Premise

“All emeralds are green.” Second Premise

“This object is an emerald.” Conclusion

“This object is green.”

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Analyzing, Continued [1. Identify Issues] 2. Set out Principles

a. From Legitimate Source b. Generally c. Neutrally d. Declarative Sentence e. Exhaustively

3. Compare Facts a. Exhaustively b. Analyze against Principles

4. Conclusion 5. Go to Next Issue

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Chapter Summary Problem: Small Electronics sells to General Systems in

NY; also from Florida; General resells NY, sold in every state Nev., injury Fla., plaintiff 1. personal juris? a. b. 2. how serve? 3. transfer venue?

state issue: what? federal issue: what?

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CHAPTER 3: SUBJECT-MATTER JURISDICTION

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Fed Q Juris? “Arising under” 1. State-law claim 2. Fed defense 3. Complaint contains rebuttal to fed defense 4. Fed claim Now: Which one is like Mottley?

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2 Ways to Analyze “Arising Under”

1. Ingredient Test If fed law a “substantial ingredient” 2. Creation Test If fed law “created” claim Sometimes, Different results!

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Hypothets: ingredient v. creation?

� Merrell Dow v. Thompson: state law products defect claim; alleged defect, violation of Pure Food & Drug Act (federal but doesn’t create claim)

� Grable & Sons v. Dorne: claim for title/land sold in federal tax sale; depends on whether feds gave required notices

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Mas v. Perry Mas: Miss; Lives La Perry: La Mas: France; gets under amt

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Which Side Wants a Bad Judge? Judge Goode: Judge Badde: Careful Careless Follows Law Ignores Law Methodical Arbitrary Does Justice Lots of Injustice

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Games Lawyers Play! If P wants State P Tex → Mfr Calif

Distrib Tex

If P wants Fed P Tex → Mfr Calif

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Entities Corporation: Incorp; PPB Hertz v. Friend: “nerve center” is PPB Ass’n: Members Problem: Payne D’s Nerve Ctr D’s Bulk/Activities What if also sues union?

Michigan

Ohio

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Supplemental: 2 Claims P → D

Old Law: “Common Nucleus of Operative Fact” New Law: “Same [Const’l] Case/Controversy” Exceptions (4); Discretionary

→ Fed

State

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Supplemental: Types of Claims PTex ⇆ D1Calif

D2Calif

ICalif

TCalif

All may be within Supplemental J.

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Removal Problem In NY State Ct, all over $75,000 . . . removable?

P NY → D Fla

P Fla → D NY

P Fla → D NY

Diversity

Diversity

Fed. Question

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Time Limits: Removal, 30 day

1 yr (Diversity) Remand,

30 day (Procedural)

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Caterpillar Case: Removal D1 Del

P Ky

D2 Ky

I Mass

Removal: after settlement, P&D2; before dismissal

Dismissal of I: after Removal

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Putting things together after class is more important than preparing for class.

•  You’ll tend to forget what happened even as recently as YESTERDAY.

•  Tendency is, to over-prepare for class, but not to consolidate what you know!!??

•  That’s lazy, actually. (Working smart is harder than working hard.)

•  Study the material AFTER the class! Important!!!!!

•  How? Outlining, reading, videos. 20/07/16 75

Chapter Summary Problem: Libel claim, pub. figure 1st Amend. req. proof of “reckless disregard” by P P Wy → D (incorp. Delaware, where PPB?)

PPB? West York, largest; NY, HQ Issue(s); Principles; Fact Analysis; Conclusion 1. Diversity Juris? 2. FQ Juris? 3. Juris of C’Claim? 4. Removal?

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CHAPTER 4: THE ERIE DOCTRINE

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Erie RR v. Tompkins Pa: trespasser; willful only Other states: negl If Pa. suit? . . . If fed. suit, Swift v. Tyson? “Defects,” Swift: •  Irrational discrim •  Forum shop, disproportionate •  Fed. interference, state policies •  Constitution

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Erie Doctrine “In diversity or other state–claim case, apply law

of forum state.”

Please know this!!! (Remember: forum state. Not just “a” state, but

FORUM state.)

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Substance-Procedure Distinction: 5 Approaches 1. Outcome determ 2. “Definitive” outcome determination 3. State-fed interest balancing 4. “Gray area,” controlling fed rule 5. Policies of Erie

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A Few Issues Raised by Erie (1) “substance”?

“procedure”? (2) multiple states? (3) state law unclear? (4) other issues

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Revising Erie after Hanna 1. Rules Enabling Act → Fed Rules govern. 2. Rules of Decis Act → state substantive law governs. So: 1st Issue: Controlling Fed. Rule? If not, then use other tests. 20/07/16 83

Interstate Choice of Law (1) lex loci delicti (2) most signif. relationship (3) others (4) what if in fed court?

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The Erie Case Itself: Choice of Law? suit: event_ NY Pa “substantive” includes choice/law rules!

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CHAPTER 5: PLEADINGS

Past History •  Looser Standard, Earlier (no longer) •  Dioguardi v. Durning: “short & plain

statement” •  Conley v. Gibson: “beyond doubt,

no relief” (overruled)

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1. Cause of action pleading– notice of legal & factual basis for each element that

must be proved for recovery. In a negligence case, notice of facts too: – the basis of the duty of care; – the act of breach (negligence); – proximate causation; – damages 2. “Claim” pleading– the type of claim & factual context. “D was negligent

while driving his car” [but is this enough?? Has it changed??]

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Two Standards: Substantive: Assume its true, dismiss if law says

no way plf can win (later in materials) Amount of Information: “short & plain” (but

what does that mean?) � Notice pleading � “Plausibility”

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Bell v. Twombly: Changes Specificity Standard •  Enough detail so that it is “plausible” to infer

a claim •  Reason: cost & waste of claim pleading •  “Is this a reversion to cause-of-action

pleading?” •  Does it affect pleading of every type of

claim? (Yes.)

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Fox v. Lummus (1) implied agreement (contradicts express) (2) quasi contract & (3) unjust enrichmt (only when no contract) (4) “harassment” w/mental anguish

� m/dism/fail/s/claim (substantive std.) � m/more def stmt (specificity std.) � m/strike 20/07/16 92

Can It Be Dismissed? 1. Std for Dismissal? 2. Compl: “P, Blackwell, publishes worst-

dressed list. “D, Carson, during comic monologue, said ‘Blackwell called M. Teresa a “nerdy nun” & “fashion No-No.”’

Slander, caused [specified inj.] (Calif. law: comedy, parody not actionable.)

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Can It Be Dismissed? 1. Std for Dismissal? 2. Compl: “Repub of Texas president sues

United States for declaratory j that Texas not a state.” (Subst. law: Texas came into United States by treaty; attempted/secede, lost war; since, has functioned as state.)

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Can It Be Dismissed? 1. Std for Dismissal 2. Compl: “P, Quarterback publicly ridiculed

coach’s strategy; D, coach benched him; P claims dmgs for viol freedom/speech.” (Subst. law: 1st amend does not prevent a coach from benching a vocal critic of strategy.)

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Rule 9 Differs from Rule 8 “particularity:” •  Fraud •  Mistake •  “special” dmgs (those not inferrable from

injury)—[plead all relief] . . . Why? How much?

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Contents of Answer (1) motions R. 12 (2) admissns & denials R. 8 (or insuff. info)

[Contrast TX: gen. denial] (3) aff. defenses R. 8

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History: Sanctions under Rule 11 Oldest R. 11:

subjective: bad faith Old R. 11:

strict “must” impose

New R. 11: softer duty; safe harbor; discretion

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“New” Rule 11 certificatns

no improper warranted/law evidentiary supp (or if “designated,” prediction of discovery)

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Amendment:

(1) as matt of course (right) (2) consent (3) Leave of court –”freely given when

justice”

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Aquaslide case: 1. D asks leave to amend, to deny manufacture.

Statute/limitations: time has run. 2. Granted. 3. Ruling: Leave granted. Standard: freely

given, justice so req. S. Ct. interp. stresses 2 factors: prej., bad faith. Ct. says D not bad f., and P not prej. � But . . . is this true?

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Chapter Summary Problem: 1. substantive standard: [to avoid M/Dism]? 2. specificity standard: [to avoid M/More Definite]

Example: look at Form 10; dictate a possible complaint. [don’t forget “plausibility” standard]

3. omit only liable D? 4. statute limitatns: steps to avoid? 5. minimizing sanctns?

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CHAPTER 6: MULTIPLE CLAIMS

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R. 13 Counterclaim • Compulsory “same transactn” • Permissive

R. 13 Cross-claim “against co-party” P1 D1

P2 D2

T third party (impleader)

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R. 14 Third-party claim (impleader) against person who “is or may be liable to 3rd

pty plf” for plf’s claim

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R. 20 Permissive Joinder 1. joint, several, alt 2. same trans/series 3. common question

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Putting Together & Taking Apart Consolidation Severance Separate Trials (splits 1 claim into 2 trials)

Example: Aquaslide

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Which is a valid interpleader? Don runs over & kills Paul & Patty; wants to

avoid both of them filing separate suits Davis Bank has an account on deposit; Paul &

Patty each claim it; Davis wants to avoid both filing separate suits

Inconsistent claims??

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Intervention • permissive • of right

§ 1407, Multidistrict Panel • pretrial consolidatn • judicial panel decides • fed cts only

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Class Actions: (a) 1 numerosity

2 commonality 3 typicality 4 adequate rep

(b) (1) inconsistency (2) whole, injunctive (3) predominance, superiority (4 factors)

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THE STORY OF A CIVIL SUIT: DOMINGUEZ V. SCOTT’S FOOD STORES

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Notes, 6 claims adjuster

role? performance? lawyer, different?

file confidential? settlement?

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Notes, 13 case acceptance? interview

narrative, questioning? data forms? systems?

office, deadlines demand ltr

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Case Acceptance, continued-- 1. probability/establish liability: • claim, evidence, defenses, jury 2. estimated recovery: • damages • solvency • time value/money 3. expense/litigation: • out/pocket • atty’s time • overhead

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Case Acceptance, continued-- (p x r) > e?? p = prob/liability r = est recovery e = expense/litig

• other factors: pro bono? • atty’s situation? • want experience? • like plaintiff? • [get other business?] • friend/relative

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Notes, 13, Continued written agreemt with client

good pract. ingredients; problems

med authorization; efficiency extent/investigation

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Notes, 20 client relatns juris, service, venue complaint • substance • specificity

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Notes, 20, Continued motion/dism • evaluation? • rule 11? • d’s tactic? plf’s tactics • generality • specificity • d’s tactic order; ruling 20/07/16 119

Notes, 31 suing the right defendant? document preparation tactics • specificity? • redundancy? deposition • setup? • coverage? • question techniques? • whom depose?

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Discovery purposes: 1 find out 2 “freeze” 3 usable form 4 [harass? Not proper, but must consider.]

Coverage of a typical simple depo 1 impeachment enhancement 2 witness bkground 3 liability-producing incident(s) 4 damages (each category)

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Funnel sequence 1 ask narrative (open-ended) 2 prompt more narrative 3 exhaust narrative 4 then, specific questions (only then)

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Notes, 36 timing of amended pleading tactics:

• when specific, in a pleading? • when general?

D’s answer: what contents; why? jury demand–

• by defendant • why?

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Notes, 40 should MSJ not be filed? std for sum judgmt briefs: reasoning • issues • principles • fact analysis • conclusion

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pretrial order draft • contents • effort trial settings • resets; effect • docket: unified vs. individ? ct initiatn or atty? mot in limine final pretr hearing

Pretrial Events

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Notes, 63 • attys’ goals in voir dire?

find out, for challenges but: what else???

• do “labels” predict the strikes? • peremptory and for-cause challenges • should judge or attys do voir dire?

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Notes, 87 evidence: hearsay; h’say exceptions; pers knowl;

relevance; form of q’s; prior inconsistent stmt?

discretion objections how to do good direct? motion/judgmt/matt/law? D’s evidence?

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Notes, 102 • general charge, versus • special interrogatories (“fact questions”) • charge contents • strategy in proposing charge • objections • order of charge and argument • jury argument: purpose & contents • verdict 20/07/16 129

Notes, 115 • post-trial motions: purposes of the 2

types • perfecting the appeal • brief: contents. Persuasive? • oral argument vs. written brief;

which matters

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Notes, 120 • cost of litigation, parties & taxpayer • reforms • attorneys’ skills

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CHAPTER 7: DISCOVERY

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Notes, Morris 1 begin w/law, not facts? Why? 2 what volume of documents? 3 “interview” friendly witns (not “depose”)? 4 Why all hosp recds birth to date “whether

relevant or not”? 5 why verify all with expert? 6 what will the cost be? 7 lay out chronologically (not easy)?

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Voluminous. Messy. Contentious. Very Expensive.

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Scope of Discovery: 6 Issues 1 “proportional to needs of case” 2 “relevant” (need not be admissible)(less important) 2 “not privileged” 3 limits; cumulative/inconvenient; ample opp.;

burden/benefit 4 not work product (“trial prep”)(or, need & hardship) 5 As modified by protective orders 6 electronic: “reasonably accessible” or good cause

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26(c) Protective Orders “annoyance, embarrassment, undue burden, etc.” options: nondiscovery; method; terms/

conditions; persons present; confidentiality; etc.

discoveree: discoveror: shows “harm” shows “need” then, court “balances;” discretion

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Problem, Shaw v. Shop’g Ctr • questions re: interp doct’s, witn never saw • also, communicatns w/person who is atty

(priv), bus mgr & acctnt (not priv) 1 “relevance” for discov 2 privilege claim (who has burden to define what’s

priv?) 3 persistent q’s; instr to w

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Trial Prep Materials: “Work Product” . . . “prep in anticip of litig . . . by or for a

party . . . or representative” escape valve: “substantial need,” . . . “undue

hardship” “opinion” work product, court “shall protect” why have this rule? Adversary system; prep;

settlemt; tactics

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Trial Prep: Experts 1 “testifying” expert (“may be presented”) –

fully discoverable 2 “consulting” expert (“retained . . . sp.

consult”)–usually not; escape valve (“exceptional . . . or impractical”)

3 “informally” consulted? 4 expert not obtained for litig (e.g., designed

product; safety consult)–fully discoverable

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Deposition rules [ct discretn; cutoff] setup (reas notice)? compel appearance?

productn w/depo? who administers? object’ns to form: now (e.g., leading) what about h’say? signature? stipulations?

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R 33 interrogs: • “corp. knowledge;” investigate • burdensomeness • bus recds option • the dilemma • “contention” use, opinions • limits, #; local r’s • how to draft/answer

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R 36 admissions: • fact propositions • controversial facts, not useful (why?) • what if unknown? (or, answer denies?) • “self-enforcing” • anti-contradiction effect • opinions, concl; law

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R 34 productn • documts etc. • burdensomeness • storage, access • categorization–by request or as kept? • “reas particularity,” relevance • costs, etc: cts’s tendency

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Electronic Documents under R 34 “reasonably accessible” documents

(what does this mean?) what if not “reasonably accessible? duty to preserve; sanctions mistakes, destruction, sanctions cost shifting: early planning

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Problem G: The “Crummy Machine” and Missing Emails

(1) Email transforms evidence (why? candor, in writing)

(2) Options for obtaining docs, or other relief � reasonable accessibility � what if not? � destruction?

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R 35 phys & mental • motion • in controversy • relevance not enuf • report

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Duty/supplemt, 26(e) Incomplete or incorrect, not made known. Use of Depositions, 32(a) • impeachmt • party, agents • unavailable • completeness . . . contrast TX (free use), NY

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26(a) disclosures “initial” (within 10 days of required mtg)

(1) individuals/relevant; (2) documents; (3) damage calc; (4) ins.

“expert” “pretrial” TX: “req for disclosr”

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Misc. Discovery Issues “pushing”/“tripping”

why attys do this? required meeting 26(f) certifications 26(g) local rules sanctions, 26(g) & 37 what options for sanctions? what conditions?

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Sanctions: Options • order discovery • strike pleadings • establish facts • preclude facts • establ/preclusn • dismiss; default • spoliation instruction • contempt; etc.

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Conditions for Sanctions

Non-merits: fault (negl)? (atty’s fees, costs, etc.)

“merits” sanctions: gross negligence (indifference) or deliberateness

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Chapter Summary Problem: libel

Payne → WY Newsp. suit interrog asks info sources; prod’n asks statemts, before/after;

reporter says “never.” 1. basic scope of discovery (two 26(b)(1) conditions; electronic) 2. work product? 3. other options? 4. sanctions? 5. full discov plan, P? 6. disclosures, initial/exp?

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Tx Rules: better? (1) discovery control

plans • Level 1, $50,000, 6 hrs of depos, 25 interrogs • Level 3, ct ordered sched, incl. trial date • Level 2, all other, 50 hr depo, 25 q (2) request/disclosure: atty requests answers to

any of 11 formula q’s

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Tx continued (3) depositions, 6 hr max (4) “potted plant” rule: • no conference w/witn, excpt re priv • obj limited: “leading,” “form,”

“nonresponsive” • instruction not to answer: only if priv, ct

order, abusive q, misleading, or to secure ruling

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CHAPTER 8: PRETRIAL CONFERENCES/ORDERS

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R. 16: purposes • sched order (req all cases unless local r

exempts) • subj considered (anything facil disp) • settlement; special procedures • orders • sanctions–not participating in good faith

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Pretrial Order fed ct usages controls act’n

liberally read. Can be modified to prevent substantial injustice

drafting responsibilities contents

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Case Management • magistrate j’s (powers) • scheduling trial and continuance management • reporting rules • case plans • differential case mgt (tracking) • staging • enforcemt (adjud. by deadline) 20/07/16 158

APPENDIX: THE LIFE OF A LAWYER

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the survey statistics 1. What % dissatisfied?

Where I want you to be: satisfied! 2. Why these stats? 3. Compare physicians

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Is it true? And if it is, so what? 4. What makes diff? (Do we know?) 5. Why this coverage? Mushy content,

uncertain answers, “depressing”? 6. If trying to avoid pitfalls, what will be nature

of what you study? (a) pleasant things, or (b) unpleasant ones?

the goal (remember!): you in the satisfied group!

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the biggest issue: time! 7. time usage (managemt)(most important variable?)

(1) billable rec’ds (2) administrative (3) personal life (4) short tm deadlns (5) long tm deadlns (6) wipeouts (flex)

Problem A: Fast-Lane Divorce 20/07/16 162

adversaries, judges, employers, clients 8. adversary system

•  opposing attys •  opposing parties •  judges •  rules

cost unpredictability unintended results; injustice

Problem C: The Dollar Auction (Escalation)

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adversaries, judges, employers, clients (continued)

9. Problems from the people “on your side” •  clients

morals intellect popular knowledge about attorneys attitude toward you

•  co-counsel—can they cause you difficulties? •  Employees •  Superiors: Saying “No” (How???)

Problem B: Milgram, Authority & Obedience 20/07/16 164

business management: does law school teach “against” it?

10. Business mgmt • business plan?

• financing? [KONTEST] • personnel? • equip/inventory? • style? • accounting? • systems? • govt/employer? • change/technology?

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other issues 11. stress

• what it is • what produces • what it does • managing Problem D: The [Non-]Executive Monkey

12. relationships

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other issues 13. dealing w/failure • law school • practice • Lombardi 14. anger 15. health 16. subst abuse Problem E: Law School and

Obsessive- Compulsive Traits 20/07/16 167

CHAPTER 9: ADJUDICATION WITHOUT TRIAL

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Judicial control over juries: • dismissal for fail/claim [judgmt on pleadgs] • summary judgmt • judgmt as a matter of law [during trial]

(directed verdict; instructed verdict) • [reconsideration of] judgmt as a mattr of law

[after trial] (judgmt notwithst. v.) • new trial • appellate reversal (new tr., or rendition of j)

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“Judgment on the pleadings” same standard as dismissal/fail/state claim– assume all nonmovant’s allegations true; no

recov, matt/law [Why? Example: D admits all of claim, or

pleads nonexistent aff defense] [Motion/Dism asks for a kind of “Judgmt on

Pleadings,” but Plf obviously doesn’t want dismissal]

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“No genuine iss/material fact” = summary judgment • burden on movant • must establish controlling facts and

show that they are undisputed • (only then, nonmovant must dispute)

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3 ways for D to obtain s.j.: (1) undisputed showing/aff defense (2) affirmative proof negating required element (3) showing that P can’t prove a requiremt

� How prove that P can’t prove it? � Proving a negative � You have to know all of P’s proof! � Use discovery, first.

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Summary Judgmt Burden: Movant Proving a Negative? Discovery! So: SJ because P can’t prove it: MUST USE DISCOVERY!

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R 41: dismissal • with/without prej • condition

R 55: default • liability assumed • dmgs: liquidated, clerk; otherwise, j • set-aside: excusable neglect (R. 60)

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CHAPTER 10: TRIAL

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R 38 preserves jury right Constitution: trial/jury, “common law” (not equity, etc.)

R 39, 81(c): Must demand, 10 day (discretion)

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Jury Trial jury array • Const: “cognizable group” • summons method: fed. statute Challenges: for cause; peremptories (3) Race & gender: prohibited reasons • prima facie: numbers, by statistics • neutral explanation • pretext

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Voir Dire: Many Goals!

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R 47, voir dire: Who does the questioning? • all judge (suggestions); all attys; part • judge’s duty --improper questions Tactics: find out; conditioning on facts;

condictioning on law; inoculation; commitment; ingratiation; injection/prejudice; etc.

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Opening Statement 1. “Framing”

defining battleground importance: the jury research Tx: voir dire

2. Method 1, 2, 3 “themes” coherent; simple, familiar story: link it to→ evid clear, positive interesting don’t overpromise

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Evidence rules: relevant evidence: “any” tendency hearsay rule:

(1) stmt, (2) not now testifying, (3) offered to show truth of facts stated

hearsay exceptions: excited utterance, business records, public records, etc.

exclusion if relevance substantially outweighed by prejudice

lay opinions, experts leading questions (yes, on cross-exam)

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The “record” both admitted & excluded ev Here’s how to offer a document or thing: 1. Mark: It’s now “Exhibit 1” [or whatever] 2. Identify: Witness says “It’s a picture/diagram of ___.” 3. Predicate: “Does it fairly & accurately show ___?” 4. Tender to opponent 5. Judge, I offer Exhibit 1 [verbal; don’t shove it at the judge] 6. Support it with more questions or argument if needed 7. Get a ruling from the judge (“It’s admitted”) 8. Show it to the jury

20/07/16 182

Jury Argument: General 1. Functions

draw conclusions apply law to facts supply value-laden standards

2. prohibited (1) inconsistent with evidence (2) inconsistent w/ law (3) invective against someone (4) appeal to prejudice

20/07/16 183

Methods and Organization of Jury Argument

P first–and last introduction legal terms focus on questions asked of the jury: read; translate & simplify; marshal the evidence; answer D’s argument answering (1, 2, 3 only) then: same approach, but with D’s spin add the emotional (value) part P’s response: answer (briefly, 1, 2, or 3); emphasize best points; conclude with emotional (value) part

20/07/16 184

Verdicts general verdict

one long question: who wins and how much special verdicts

ultimate facts: who was negligent, etc. (questions cover the elements of the claim)

advantages /disadvantages?

Rule 49: if there is a conflict– 1 more deliberations; 2 new trial; or 3 judgment on special verdicts

20/07/16 185

Jury verdict case: 1. Was there a defect?, YES 2. Was it a proximate cause? YES 3. Was injury foreseeable?, NO 4. Did plaintiff assume the risk? YES 5. Damages? (non-zero = plfs general verdict)

(bad way to do it!) $120,000 Judge sent back, 2 more q’s: jury orally

affirms 20/07/16 186

Pennzoil v. Texaco: 1. (did an agreement exist?) But asked as,

did the parties “intend” to bind themselves? [instruction on intent (unconnected?)]

2. Was there knowledge and interference? 3. damages? [not a general verdict]

. . . [last q]: was the contract, if any, illegal?

20/07/16 187

Chapter Summary Problem: P’s 3-yr-old girl drowns, unlocked apt. pool, while baby-sitter. 1. rt/trial by jury, if join injunctn/fraud? 2. challenge array? 3. demand/waive jury? 4. voir dire: judge/attys? 5. insurance questns? 6. ideal juror? 7. peremptories/Asian Am? 8. gen verdict $2 mil; special v’s total $1 mil

NOTE $80 mil verdict! How won (what skills)?

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CHAPTER 11: POST-TRIAL MOTIONS

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j as matter/law (jmol) • mechanical standard • no discretion • either entitled or not

motion/new trial • discretionary; all types of miscarriages/justice 1. “great weight” (judge weighs evidence & credibility; couldn’t for

mjmol) 2. Damages (remittitur = conditional n.t.) 3. trial errors 4. newly discov. evid. (diligence; change result) 5. misconduct (jury, party) 6. other

20/07/16 191

Conway v. Chemical Leaman trial 1: P wins appeal I

reversed trial 2: D wins; plaintiff files Motion/ New Trial. Grounds: (1) surprise, and also, (2) verdict allegedly

insufficient. Motion granted on insufficient-verdict ground.

trial 3: P wins appeal II reversed; verdict is sufficient.

Plaintiff re-urges the Motion granted, surprise ground appeal III

grant of New Trial aff’d judgment on verdict 3 appeal IV affd

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Rule 60: Relief from Final Judgment R. 60(a) clerical errors 60(b)–relief/final j– *(1) mistake; excusbl neglect *(2) newly discov ev (note restrictions: diligence, change result) *(3) fraud . . . misconduct (4) satisfied . . . (5) void (6) other *1-yr limit; after, “independent action” (hard)

Rozier: (2) won’t work–won’t change result. (3) works: it’s

not “fraud”–but . . . “misconduct”

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Chapter Summary Problem: P: in her lane; then, blackout (heart attack); collision; P

recovered, in her lane D driver: P crossed median 1. j as matter/law? 2. new trial–

a. great wt? b. misplaced burden/proof (no objectn) c. newly discovered ev. “no idea . . . maybe crossed median”

–diligence? change? 3. . . . 4. Rule 60, within 1 yr?

–diligence, change, misconduct?

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CHAPTER 12: APPEALS

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Appeal; Standards for Reversal 1. review/law:

a. harmful; b. preserved (objectn); c. not cured; d. outside discretion. “avoidance doctrines”?

2. review of facts:

• “clearly erroneous”: meaning? • relation to standard for reversal after jury trial? • why defer to trial judge?

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“FRAP” (Fed. R. App. P.) 3 notice/app.; cont. 4a 30 day (30 xtensn) 7 cost bond 8 stay; supersedeas 10 recd; transcr, papers

order (10 dy)–11 12 docketing 28 briefs–contents 30 appendix 31-2 timing (40 dy), print

20/07/16 197

final judgment rule: all parties, claims [SJ for 1 of 2 D’s?] [dism of 1 of 2 claims?] escape valves: 1. R: 54(b) (makes partial j. final) 2. [collateral order] 3. 1292(a) (e.g., injunctions) 4. “discretionary” 5. mandamus

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CHAPTER 14: REMEDIES

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Pre-Judgment Remedies 1. ex parte: concept 2. self-help reposs 3. sequestratn

attachmt pre-/garnishment

4. lis pendens notice 5. TRO w/out notice 6. Fed: borrows state 20/07/16 200

Seizure and Due Process Fuentes: poss’n sole prop interest, when considering ex parte? • non-possessors’ int? • credit cost/fair, debtors? • pvt repossess? • better way? Mitchell: (1) sworn testimony (2) showing rt/poss

(3) and need (4) neutral (5) notice w/seizure for (6) prompt post hearing [(7) bond (8) damages]

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TRO (Temporary Restraining Order) • grease skids • bond

compl (contents) aff (contents) order (contents) fee

• clerk, j, sheriff

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damages • actual (compensatory) • punitive (gross negligence) method of estimating • reasonable • “substantial certainty” (but what does this

mean?)

20/07/16 203

damages Problem: proof elements • condition before • condition after • cost • reasonableness • necessary by this accident • time & • place of the accident

20/07/16 204

injunctions: balancing equities 1. harm to P, error/denial 2. harm to D, error/grant 3. prob/merits 4. pub interest Posner: grant if P x Hp > (1 - P) x Hd

20/07/16 205

equity: inadequate remedy at law • specific perf (uniqueness) • restitutionary remedies • constructive or resulting trust • equitable lien • evolution of equitable remedies

20/07/16 206

declaratory judgment attorney’s fees • lodestar = hrs x. reas fee • billing judgment • costs • [penalties] • interest?

20/07/16 207

Enforcing Judgments • execution under the com law (Missouri;

also TX) 1 advertise 2 disproportion 3 subdivide 4 debtr designatn 5 exemptions [contrast NY]

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Other Enforcement • judgment lien [Problem] • post-j garnish • turnover [Problem] • receivership [Problem] • discovery in aid • contempt/arrest [Problem] • interstate enf

20/07/16 209

CHAPTER 15: ALTERNATE DISPUTE RESOLUTION

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ADR–for: against–Fiss: • cost • privacy • energy • timeliness • accuracy • enlarge pie • expertise • control • cooperative

• plea barg • w/out auth • precedent base • accuracy • satisfactn • commun control Realities?

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the tilted house pro-arbitration: • time; energy? • timing? • evidence; expertise? • cost? reliability? • enlarge pie? [what else?] pro-litigation: • traditional; familiar? • jury? selection? • concern re bias? • bigger dmgs? • costs: shift to dfndnt? [relative satisfaction?]

20/07/16 212

Negotiation

I. Two Alternatives • firm, fair offer • THE negot method: – unreas 1st offer – pretend reasonable – conceal settlement point

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Negotiation (continued) II. Tactics for Implementing Method or Closing Gap – merits – blame client – reverse psych – agenda – drafter – barg chip – time – collateral cons

– whipsaw – focal points – clubbiness – physicalities – mediator – feigned emotion – test/strength

20/07/16 214

Settlement Agreements • releasing: who? • released: whom? • released: what? • sample clauses: – mutual/unilat – general/specif – named parties – ability/release

20/07/16 215

Settlement Agreements (continued) sample clauses (more) – warranties – circular indemnity – confidentiality – anti-fraud [or, the opposite: keep ‘em honest] – dism/take-nothing – conveyances? – in-trust payment – etc. 20/07/16 216

Exam Preview I. Principles–for Exam

A. consistent w/cov’g - emphasis - includes lesser emph, but less detail

B. comprehensiveness: every major subj., some cov’g (not necess. proportional)

C. time issues D. clarity E. gradeability

II. Methods some objective, some not closed book practice covered, some

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Sample Structure of a Past Exam: 3 parts Pt. I: about 25 mult choice II: long problem III: A-E, 5 problems Chs. 12-15 were covered by mult choice only This year’s particulars: different