civpro-bundy-99

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Brian McDonald, Civ Pro: Bundy, Fall 1999

Civil Procedure Outline

I. Basic Elements of Civil ProcedureA. Based on a dispute:

1. Facts: what happened

2. Law: what law to applyB. Involves anyone: private parties, corporations, civil organizationsC. Goldberg v. Kelly: denial of welfare benefits and due process

1. Arguments:a. P: termination of benefits w/o notice or hearingb. D: post-termination hearing

2. Issue: Does 14th Amendment of Due Process protect these interests?3. Various versions of the process:

a. Pre-Litigation: T-notice/ Fair Hearing (FH)b. Post-Litigation: Meet w/social worker/Decis letter 7 days before T with

option to submit letter in defense/T-notice/FH

c. S.Ct. determined to be insufficient process since it has 2 fatal flaws:1. Opp to appear personally and testify orally2. Opp to confront and cross-ex witnesses

4. S. Cts Analysis: How bad is the harm and does it outweigh the govtsinterestsa. Worst case for govt: Certainly issues dealing with money lost when

benefits should have been deniedb. Worst case for respondents: denied money necessary for survival.

1. Really double-edged sword since 1. Financial troubles and 2.Impairs ability to redress wrongful action

c. Clearly costs outweigh the benefits, should expand procedure

d. Finally, acknowledged that due process was at stake, but it was vagueand open for interpretation: How much process is really necessary?Need to look at costs/benefits

5. Dissent: not really their property in the first place; no affirmative promise; itis a gift?a. Irrecoverable $ for governmentb. This will make govt less likely to put people on welfarec. Also, procedural overloading of courts

6. S. Cts version is better b/c corrects for2 fatal flaws above:a. Less educated need chance for oral presentation since they cant writeb. Procedure becomes more accurate correcting for biasesc. Meaningful participationd. Builds more accurate factual basis

7. Also better b/c gives adequate notice, permits retention of counsel,unbiased decision maker, decision based on record, and reasons arestated openly.

8. Rule: Important to protect due process, protection of civiliansagainst governmental interests, and to ensure that the recipient hasthe best of capabilities for effective participation in the system.

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a. Court doesnt trust government b/c $ tightly held and not unbiased inthis case.

9. Policy: Are courts overstepping their bounds here? Shd Legislature makethese changes?a. Hard to say, but OK in this case b/c

1. Welfare recipients dont have legislative representation2. Legislature is slow and these are survival issues at stakeD. Michelman: The S. Ct. and Litigation Access Fees: The Right to Protect

Ones Rights1. Four values that are generally furthered by allowing people to litigate:

a. Dignity: Need to respond to perceived wrong to maintain self-respectb. Participation: Right to participate, free speech.c. Deterrence: Constrains all parties to acts that are aimed at social

welfared. Effectuation: ability to stand up for ones rights

2. The Process Due: must weigh cost/benefits analysis (as in Goldberg)

3. Matthews v. Eldridge: Denial of Veterans Social Security Benefitsand Due ProcessA. Much like the Goldberg v. Kelly case (see brief for details)B. Arguments: Due process denied since no pre-termination hearingsC. Process included investigation, questionnaire, inquiry to physician,

optional official medical review, notice of termination (with summary ofreasons), opp to review evidence, and right to counsel, decision onrecord w/SSA, and termination

D. S. Cts analysis: Must again employ cost-benefit analysis:1. Degree of deprivation2. Probable value of additional safeguards3. Costs to government

= Determination that costs do not outweigh benefits, procedure isadequateUnlike Goldberg b/c distinction drawn between SS Benefits andWelfare BenefitsCosts in Goldberg do not apply:1. Oral vs. Written: Here, physicians reports are good versions of

the facts2. Ability to appear in person: Does not change nature of facts or

remove biases, since Physicians reports are not likely to bebiased.

E. Counter-Args: Seriousness of harm still great, and med opinions couldbe biased

F. Rule: To satisfy due process, procedures must be tailored, in lightof the decision to be made, to the capacities and circumstancesof those who are to be heard, to insure that they are given ameaningful oportunity to present their case.

E. Van Harken v. City of Chicago: Parking Ticket and Due Process1. Argued based on Goldberg case (see brief for details)

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2. Arguments:P = denied due process if not allowed to appeal decision (since pay $200)D = not denied due process

3. Process includes: part time lawyer as judge, officer not required to appear,respondent can present evidence, cannot appeal ($200 to do so)

4. Employing Cost Benefit Analysis:a. costs for P are low b/c only $100 and Social stigma is lowb. but costs for State are high b/c administrative bureaucracy would be

crazy5. Rule: Test for due process is procedura minima as set forth in

Matthews. Must use cost-benefit analysis: the less that is at stakethe less process is due.

6. Policy: if accept this rule, will accept that some public violations will gowithout appeal.

II. Pleadings

-- 2 documents: summons/complaintA. Specificity of Pleading (FORM: not substance of claim)1. Is pleading sufficient? 3 elements needed: (R 8a)

a. appropriate jurisdictionb. claim showing P is entitled to relief (violation of a law and

supporting facts)c. relief sought

2. If pleading is insufficient, what can D do?a. Move for more definite statement (R 12e)

3. If pleading is sufficient but still vague, why send it to trial?a. P might want to discover facts during discoveryb. As long as D knows of accident, should not be complete mystery

4. Examples:a. Sufficient Claim: Bell v. Novick Transfer Co. (child injured in auto

accident)1. D moved to dismiss since P only alleged general negligence but

no specific acts.2. Court ruled pleading was sufficient per rule above

b. Insufficient Claim: People ex rel Dept of Transportation v.Superior Court(demurrer of offic form)1. D moved to demurrer complaint filed on official form, but Sup

court said form could not be demurred. D filedwrit ofmandamus

2. AC ruled could be demurred since facts re cause of action wereinsufficient. Re dangerous condition of public property, fourrequirements (see brief)

B. Adequacy of Pleading (SUBSTANCE: not form of claim)1. Is pleading adequate?

a. Are the violations of an actual law alleged?b. Is there factual support for the allegations?

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***a claim may be dismissed if its claims are unquestionablyinsufficient to entitle the P to relief no matter what facts are proved attrial

2. If inadequate, what can D do?a. Move to dismiss for failure to state claim for relief can be granted (R

12.b.6)3. Examplesa. Inadequate Pleading: Duncan v. AT&T Communications

(racial/disab discrim)1. Pleading was poorly written and baldly conclusory without any

evidencea. Racial discrim act has four issues: failed to allege 3 of them

(see brief)2. Court would not give leave to amend b/c suspected no

substance to claim3. PolNote: P try to change law, but might be better to go through

legislatureb. Adequate Pleading: Rannels v. S.E. Nichols, Inc. (broken jeans)1. Pleading failed to allege 2/3 elements of malicious prosecut. law

(see brief)2. Court overruled saying P had pleaded adequately. One could

infer from complaint that appellees knew she hadnt broken law,and there was clearly malice from press comment.

c. Very goal of Fed Rules was to reduce info in pleadings, just pleadgenerally1. Had Rannels been more vague, might have not ran into trouble

in pleading2. Always tension twixt too much detail and adequate descrip of

substantial elements of claimC. Rule 11: Ethical Limitations and Disfavoured Claims

1. Is the pleading reasonable? (made in good faith that it might be true) Fourstandards:a. not presented for improper purposeb. claims, defenses and other contentions warranted by lawc. allegations or other factual contentions have evidentiary support (or

likely will)d. denial of factual contentions have evidenciary support (or likely will)

2. Examplesa. Claim if frivilous: Business Guides v. Chromatic Communications

(copied guidebook info)1. While pressured initially to halt competitor from publishing results,

later discoveries of false information should have forced Ps to endclaim***Rule requires inquiry reasonable under the circumstances

2. Court held sanctions were appropriate b/c no facts to support theclaim (R 11.b.3)

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b. Claim is frivilous: Gerbode v. Religious Technology Center(RICOstatute false)1. Party sued other party and there was no existing law to justify this

claim.2. Court held sanctions were appropriate b/c no law to support the

claim (R 11.b.2)Punishment mainly aimed at lawyers since they misrepresented thelaw

c. PolNote: What are costs and benefits of Rule 11:1. Costs: (a) free speech, (b) attempts to change law2. Benefits: reducing flood of litigation

3. Enforcement of Rule 11 (what sanctions are appropriate)a. Court may impose sanction, but not requiredb. Court may increase or decrease sanction amount accdg to desired

deterrencec. Only lawyer will be sanctioned for misrepresentation of the law

4. Pleading in the alternative: Bundy Hypo 1 (drunk driver)a. Even if claims are completely contradictory, can plead them both b/cfeel that one or the other will be proven in discovery. However, once itis clear that one of them is true, must discontinue with the other.

b. This is not a violation of Rule 11D. Burden of Pleading:

1. Burden of Proof:a. Minimum level of evidence to bring to trial.

2. Burden of Persuasion:a. Civil: more probable than notb. Criminal: beyond a reasonable doubt

3. Where do burdens of pleading lie?a. Burden of pleading an affirmative defense lies with the Defendantb. P only bears burden of pleading what is expressly stated in statutec. Heightened burden of specificity in cases offraud (R. 9.b)

1. Key elements of fraud: (a) falsehood (b) knowingly (c) material (liematters) (d) person relied on lie and (e) damages resulted

2. Why need specificity: (a) notice to defendant of lie claiming, (b) butnot info generating

4. Examplesa. Burden of pleading met: Gomez v. Toledo (disgruntled policeman)

1. P pleaded (a) violation of due process (b) under color of state law.Lower court held this was insufficient b/c superior officer heldqualified immunity for all acts done in good faith and P failed toplead bad faith

2. S Ct. held that this should be pleaded by the D since it is an affirm.defense

3. PolNote: Most civil rights cases = Ds acting unfairly and thereforeshould be forced to plead it. However, many want to assume they

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are doing their job the best they can and therefore P should have toplead it.

b. Burden of pleading not met: Shultea v. Wood(corrupt councilmember)1. Two key cases: Elliot v. Perez(1985) (requiring heightened

specificity) and Leatherman v. Tarrant(1993) (denying right torequire more specificity in civil rights cases): Question in case waswhether P should have to disprove affirmative defense of qualifiedimmunity of city council member.

2. Court upheld Leatherman and said D has to plead the affirmativedefense and P would be required to respond. (Therefore, Rule 9.bdoesnt apply here)

E. Response/Answer:1. Two ways to approach answer:

a. actual factual dispute: file answer and start to fightb. avoid need to reply: pre-answer motion

1. Wrong court over subject matter2. Wrong court over person3. Improper venue (area)4. Insufficiency of process/service of process5. Failure to state a claim upon which relief can be granted6. Failure to join an indispensable party under Rule 19

c. If 1, 3 or 4 is omitted from motion or in responsive pleading, it is waived1. However, if 3 (improper venue) made after pre-answer motion,

might be decided at trial and not waivedd. 5 and 6 can be made at any time including at the triale. 2 can be made at any timef. Other motions under Rule 12 (e: more definite statement, f: to strike)

may not be made later. Basically, R 12.g applies to 12.e and 12.f aswell*** Problem 9 on p.453 (useful review)

2. Ds answer requires more specific pleadings than a general denial if suchan answer would better serve justice (R 8 b): when a pleader intends todeny only a part, he should note that part and affirm the rest.

3. Examples:a. The general answer is insufficient: Zielinski v. Philadelphia Piers,

Inc. (pier accident)1. Failed to aver specifically that P had sued wrong D and therefore

let SOLs run.2. Court said done in bad faith since insurance will pay either way and

by allowing SOLs to run, would avoid paying at all. But no R 11sanctions, but still held them as the liable party since they werewrong to plead as such

F. Amendments: (R 15)1. Timing:

a. May amend w/in 20 days after answer is served;

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b. After 20 days must have approval of party or of court2. Results of Amendment

a. Justice: Party submitting amendment in favor b/c more accuratepicture

b. Fairness: Party opposing amendment against b/c not fair so late in

game3. Reasons for amendment:a. No bad faithb. No undue delayc. No prejudice towards other party

4. Example1. Beeck v. Aquaslide n Dive Corp. (pool slide)

a. Discovered late in motions that D was not manufacturer of slide andsubmitted amendment and moved for new trial. In new trial, juryfound for Ds. Problem: SOLs had run and now Ps couldnt attackcorrect party.

b. Court allowed amendment and granted new trial. AC affirmed.c. Bundy says that DC abused its discretion

III. DiscoveryA. Six forms of Discovery (generally):

1. Documents:a. broad, includes videotapes, computer records, all items with recorded

information on themb. Can be obtained against non-parties via subpoenas

2. Interrogatories: (Zielinski case)a. Can only get against another partyb. Limit of 25 but can be relaxed by judgec. Addit considerations:

1. asking questions can get other side to work for you.2. difficult if questions not so straightforward b/c cant follow up

3. Depositions:a. Request for expert testimony (R 30.b.6)b. Range of objections much narrower b/c court not there to sustain them.

However, lawyer may simply advise client not to answerc. Additional Concerns:

1. Most valuable when lawyer questions witness under oath2. Very expensive

4. Physical Exams:a. Only for party and family members (+ employees in CA)b. Physical condition must be in controversyc. Must have good reason for psych examd. If you want report given to other side about you, you must give up your

own report5. Request to Admit:

a. Party can be requested to admit certain things

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6. Mandatory Disclosuresa. Must provide all information related to the pleading with particularity (R

26.a)b. Two issues:

1. was it relevant

2. was pleading particular?B. Relevance:1. A party is entitled to discovery, not only of material which is relevant and

admissable at trial, but also of information which appears to bereasonably calculated to lead to the discovery of admissable evidence. (R26.b.1)

2. Examples:a. Information Relevant: Blank v. Sullivan & Cromwell(gender

discrimination in firm hiring)1. P asked for information in interrog re: numbers of women made

partner in firm. TC said not relevant to hiring practices of women.

2. Court said was relevant as it would lead to discovery of admissevidenceb. Information not Relevant: Steffan v. Cheney(homosexual discharged)

1. P discharged b/c statement that he was a homosexual. Thenrefused to answer interrogatories regarding homo activities claimingit was not relevant

2. Court held information was not relevant since not used to dismiss.If wanted to try him under this, must pursue separate action.

3. PolNote: Current Mil policy is that status is grounds for acts, andtherefore grounds for dismissal

C. Attorney-Client Privilege1. Right not to produce something for various reasons:

a. 5th Amendment: no self-incriminationb. ACPc. Doc-Patient Privileged. Marital Privilegee. Priest-Penitent Privilege

2. ACP (five parts to rule)a. oral, written, sign-lang, etc.b. confidentialc. lawyer acting in professional capacityd. to the cliente. giving/getting legal advice

3. Possible exceptions to ACP:a. If witness deposed cannot recall? NO!b. If info is otherwise unavailable or there is substantial need (Example:

witness is dead?) YES!4. Example:

a. Upjohn Co. v. United States (illegal foreign contribs)

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1. Upjohn sent questionnaire to employees and this questionnaire wasrequested by IRS. Claimed it was protected by ACP but AC saidno b/c not upper management. Also, magistrate said substantialneed important.

2. SCt said all company was client. Also, clients were still alive and

could be deposed, so no substantial need. Therefore ACP stillprotected communications.5. PolNote: Why enforce ACP?

a. Encourage full and frank conversation twixt atty and client (at all levelsof mgmt)1. lower employees have valuable info2. good for society b/c if people know the law, then will comply with it3. if no ACP, atty wont have info either b/c wont talk with client

franklyb. Encourage lawyers to do their own legwork. ACP doesnt extend to

facts, only to communications.

D. Privacy (broad since ACP is so narrow)1. Key question is whether person opposing discovery would suffer fromannoyance, etc. (e.g. good cause for production)

2. If fear that privacy may be violated, can invoke a protective order (R 26.c)3. No privacy to prevent production, but yes on privacy to justify protective

order:4. Seattle Times Co. v. Rhinehart(cult newspaper articles)

a. D sued for article slandering his organization. P requested informationthat D feared it would publish. He claimed privacy. Lower Court saidno privacy, must produce.

b. Upper court said privacy did not prevent production, but did justifyprotective order considering nature of Ps.

5. Difficult questions: abortion led to hysterectomy problem:a. Clinic wants info re womans mental state, father, etc. to establish

exclusivity of their causationb. Woman wants info from clinic about other potential victims.***Are these two cases barred by privacy or not? Might be relevant, mightnot.

E. Rule 35: Physical and Mental Exams1. Rules of game: (R 35)

a. limited to parties or family members (employees in CA)b. Phys/mental condition must be in controversyc. Good cause

2. Possible exceptions that do not worka. parties on opposite sides? NO!b. to plaintiffs only? NO! (altho dissent argues P did choose to be in court,

not D = inviolability of person)3. Example: Physical/Mental Exam not needed: Schlagenhauf v. Holder

(bus driver hit tractor trailer)

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a. moved for physical, mental, opthamology and neurological exam ofbus driver. TC granted all of these

b. SC said this was bad faith and none of other exams were needed.Rather, only opthamology was needed, but since they were obviouslymade in bad faith, he didnt give them any exams at all.

F. Work Product1. May not obtain products created by atty in preparation for trial except ifthere is a substantial need for the materials in preparation of the partyscase and that party is unavailable without undue hardship. (R 26.b.3)a. What about memoranda:

1. Fear it will disclose attys thought processes2. Might want to edit memoranda to take out thoughts

b. What about lawyers beliefs?1. Example of bartender telling him the captain of tug was drinking2. Dont have to tell since this would reveal lawyers thought processesand impressions.

2. When claiming WP protection, party shall expressly state nature ofdocuments and their justification for protected status. (R 26.b.5)3. Exceptions to Work-Product

1. Witnesses are dead4. Why do we have work product?

1. Nature of adversarial system2. Info is easily accessible: do your own work.

5. Example: Hickman v. Taylor(tugboat sank)a. Atty issued interrogatories and opposing counsel requested these. DC

compelled discovery.b. AC and SCt overruled saying it was work-product.

G. Expert Testimony1. Can be called in whenever it will assist the trier of fact to understand theevidence.a. must be qualifiedb. must be relevant

2. CALLED AS WITNESSES AT TRIAL = subject to substantial discovery (R26.a.2)a. this is an initial disclosure, usually 90 days prior to trialb. must provide report with opinion in them, hourly rate, other cases

witness in3. NOT CALLED AS WITNESSES AT TRIAL = not subject to discovery (R

26.b.4.B)4. Why these rules?

a. Want attys to do their own workb. Positively encourages expert testimony by limiting demands on them

5. Examplesa. Expert information barred: Group Insurance Co Expert Lawyer:

(retained in anticipation of trial, but will not be expert witness at trial)can get info from his work?

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1. reviews policy of D every year (yes, just fact witness)2. interviewed witnesses that now had a stroke (yes, exceptional

circumstances)3. provided expert advice (no, b/c of rule)

b. Expert information compelled: Thompson v. Haskell Co. (p claimed

mental injuries)1. P claimed mental injuries and Ds requested reports of herpsychiatrist. She refused saying expert testimony was barred.

2. However, exceptional circumstances since he alone knew hermental state at that time. Plus, R 35 is satisfied since P broughtmental state into contest.

c. Expert information partially barred: Chiquita Intl Ltd. v. Intl Reefer(bananas damaged in delivery)1. P not planning to call their expert to examined boat in Europe. Ds

want his opinion b/c only he examined at that time.2. Court said no reason why D could not have their own witness

examine boat at that time. However, found that there was no otherway to get info, so allowed access to facts in file. Partiallyexceptional circumstances.

H. Abuse and Sanctions1. Rule 37: Sanctions when documents are not produced2. Local standards should at least have some influence, but adherance to

federal rules should take precedence.3. Example:

a. Sanctions imposed: Pollock v. Fisons, Inc. (smoking gun drug letters)1. Two smoking guns not provided:

a. Dear Dr. Letters: when didnt know, intent was good, but afterknew, intent was to cover up = bad faith. Worse was when theylied by saying they had produced all relevant docs

b. Memorandum regarding toxicity of Theo: not produced at all2. Court held that this behavior was unethical and sanctionable

4. PolNote: How do we avoid this behavior in the future?a. Transform adversarial system? Not likelyb. Mandatory disclosure? Doesnt work, as we see in Fisonsc. More judicial management is key; liberal use of sanctions

I. Introduction to Discovery Exercise (see brief)1. Mandatory Disclosure: Rule 26 (a)

a. if pleaded with particularity then have to disclose names of witnessesand documents (R 26.a.1 and a.2)1. Can be creative with word documents2. But if fail to produce documents at appropriate time, may be barred

from bringing it to trial later (R 37.c.1)3. If need documents from those that arent parties to action, can use

subpoena (R 45.a.1.c)b. computation of damages and insurance agreements do not have to be

pleaded with particularity but must be produced.

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2. General Disclosures: Rule 26a. If move for depositions prior to initial disclosures, this is premature and

party can move to bar it or even sanctions (R 26.g.3)b. If party seeks to depose witnesses before substantial ev has been

gathered, this might be unproductive since it will have to be done again

later. (R 26.b.2) They can then limit discovery. (R 26.c)c. ACP protects communications between client and attorney (R 26.c)d. All claims of privilege must be specifically enumerated. (R 26.b.5)

3. Interrogatories: Rule 33a. Interrogatories may only be served on partiesb. Limit of 25, but court may allow more if need shown

4. Depositions: Rule 30a. Experts called to depose are only required to answer questions about

which they are experts. (R 30.d.1)1. If this takes place, lawyer may limit scope and manner of deposition

(R 30.d.3)

b. Witnesses may also not have to testify to preserve ACP (R 30.d.1)1. If later find that testimony is was not protected by ACP, can compelproduction. (R 37.a.2.B)

5. Physical and Mental Exams: Rule 35a. if condition is in controversy, court will likely grant exam (R 35.a)b. Only can be granted if person is (a) party to action or (b) under legal

control of partyc. Only can be granted if good cause (R 35.a)d. Examinee is entitled to see exam report (R 35.b.1)e. If Examinee has their own reports, other party is entitled to these as

well. (R 35.b.1)f. Physical exam by agreement of parties is under same rules as that

ordered by the court. (R 35.b.3)g. If cant get exam from party, can depose physician as long as he is

going to be called as a witness at trial. (R 26.b.4.A)6. Requests for Admissions: Rule 36

a. OK not to admit as long as there is reasonable grounds for your lack ofadmission (R 37.c.2)1. Hearsay or questionable witness testimony is reasonable grounds

b. Any admissions cannot then be used in a new action against D (R36.b)

7. Sanctions: Rule 37a. If document is relevant and is not protected, can compel disclosure (R

37.a)b. if party fails to disclose witness in initial disclosures, they cannot then

call them at trial. (R 37.c.1)c. if party fails to disclose witness in initial disclosures and other party

finds out, they can be sanctioned for not disclosing them (R 37.b.2)

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IV. Judge and JuryA. 7th Amendment: Right to Jury Trial

1. Text of Amendment: In suits at common law, where the value incontroversy shall exceed twenty dollars, the right of trial by jury shallbe preserved, and no fact tried by a jury shall be otherwise re-

examined in any Court of the United States, than according to the rulesof common law.2. 6th Amendment: Rt to Jury Trial in criminal prosecutions.3. Jury trials only granted for suits at common law

A. Difficult to determine if falls under common law b/c many situationsdidnt exist in 1791.

B. Generally, a specific remedy/form of relief was equity. Examples ofexceptions include:Replevin (legal), Ejectment (legal).

C. Common law actions generally included most actions for damages;Examples of exceptions include injunction or restitution, both ofwhich were classically equitable because the remedies sought were

only available in equity. However legal theories re: injunctionsmight be brought in either setting: damages for a nuisance waslegal, but injunction to stop the nuisance was equitable.

D. If unable to determine from type of action, look at remedy sought. Ifmonetary, will most likely be common law with exceptions notedabove.

4. Example: Chauffeurs, Teamsters & Helpers v. Terry(workers suedUnion and wanted jury trial). Presented analogies like common law(atty malpractice) and equity (arbitration/trustee). Court acceptedtrustee but focused more on issue: monetary damages, which arealways legal question.

B. Right to Juries in complex cases1. Due process DOES preclude trial by jury when a jury is unable toperform this task with reasonable understanding of the evidence andthe legal rules.

2. Also, example of Chancelors jurisdiction extending to cases where toomany actors for jury to understand.

3. Examples:a. In re: Japanese Elec. Products Antitrust Litigation (complex

Japanese Electronics case): Case is clearly legal in nature (partiesagree) and should have jury. But question of complexity problemb/c of due process.

b. Performance of American Civil Jury(eval of jury performance):1. Overall, judges and juries are remarkably similar.2. Four issues in complex trial of importance: trial length, volume

of ev, complexity of ev, complexity of law1. Jury trials important b/c of black box.

Response: BUT, in complex cases, might be incorrect decision2. Jury trials important b/c legitimacy.

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Response: BUT, in complex cases, opinion of judge important toexplain why case was judged the way it was.

3. Jury trials important b/c 12 heads better than 1Response: But judge is more educated one than jury

4. Jury trials important b/c burdensome need to break down issues is

guaranteed in bill of rights.5. Ability to strike jury trials will give judges discretion to sympathizewith underlying political agenda of the parties at bar.

C. Jury Selection1. Jury Summons

a. Shall represent a fair cross section1. But what is a category (EX: students NOT a category)

b. No citizen shall be discriminated against in jury selection1. Violates equal protection under the law (5 th Amendment?) and (IF

STATE ACTION) violates 14th Am rights of excluded juror.2. three steps employed to determine claim of discrimination:

a. Prima facie evidence of discriminationb. Response of atty that not discrimination b/cc. Judicial determination of validity of explanation relative to prima

facie evidence1. When looking at (b), must eval if it is probable reason2. If not probable reason, look at impact it will have on jury

a. if those that will replace are also black, problem with p.f.ev

b. if based on beliefs that are racially based, must bar strike3. PolNote:

a. Farther one goes questioning peremptories, more one destroysthe point of them

b. Other system of challenge for cause is not perfect eitherc. Also, if eliminat perempts and expand Voir Dire, might create

unreasonable costsd. Finally, juries will NEVER be totally representative even if

discrim is eliminated.c. Those who cannot serve on jury:

1. Exempt: occupational classes, safety personnel2. Excused: Active service, fire/police personnel, govt employees3. Ineligible: under 18, no s/w/r english, physical/mental handicap,

charge pending against in criminal case4. Excused by court b/c: undue hardship, impartiality, peremptory

challenge, good-cause, secrecy threatenedd. Process:

1. Questionnaire sent out according to mailing addresses from DMV,voter registration, etc. These are returned and eligibility isdetermined

2. Summons sent out by random drawing when needed3. Those that show up are the array

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4. Those that are selected from array are the panele. Challenging compliance

1. in criminal case: before VD begins or w/in seven days afterdiscovers it

2. in civil case: before VD begins or w/in seven days after discovers it

2. Challenge-for-causea. Atty seeks to convince judge that juror is not qualified to serve3. Peremptory Challenges

a. Atty uses their own intuition regarding jurors, unfettered ability todetermine who decision-maker will be.

b. Usually limited to three4. Examples:

a. Batson case: juror discrimination based on raceb. JEB v. Alabama: juror discrimination based on gender

***Batson and JEB showed that generally, elimination b/c ofdiscrimination is not acceptable. If allowed attys to use any other

excuse besides race, would nullify point of Baton ruling.c. Hernandez v. New York:1. Defense counsel excused four latinos. Prosecution argued this

was prima facie evidence of discrimination.2. D counsel explained that he felt they would not depend on official

English translation and would rely on Spanish testimony. He basedthis on their attitude during Voir Dire, which judge determined wasvalid excuse for using peremptories.

d. Edmonson v. Leesville Concrete Co:1. Black man hurt on job. Defense struck only two black jurors.

Judge said Batson didnt apply to civil proceedings. P won, but gotsmall recovery.

2. Court held that was wrong to strike jurors since third partydiscrimination prevented by constitution. Also, violation of dueprocess since state action. (debatable)

e. Bundy Hypo 2(removal of black jurors)1. Theories based on racial studies NOT acceptable, even if not racial

hatred.2. Dreadlocks: OK, if real reason, but might be disproportionate

f. Articles on Minority Representation on juries:1. Very poor in many regards.2. System perpetuates this underrepresentation3. Underrepresentation or lack of representation has large effects on

civil and criminal case outcomesD. Directed Verdict (Judgment as a Matter of Law)

1. Rule 50: No way any reasonable jury could find for other sidea. Granted if no legal basis for claimb. Made before sumission to juryc. If no later than 10 days after submission to jury and

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1. verdict was returned, may (a) allow verdict to stand, (b) order newtrial, or (c) direct a verdict as a matter of law.

2. no verdict was returned, may (b) order new trial or (c) direct averdict as a matter of law.

2. If facts are not disputed, judge usually decides since it is a legal question

3. If facts are in dispute and both parties provide credible witnesses, must goto jury b/c it is a dispute of facts.4. Burden of Production met? Enough to go to jury5. Burden of Persuasion met? Enough to win (depends on type of case)

a. Criminal: without a reasonable doubtb. Civil: more probable than notc. In between: clear and convincing

6. Why? If no evidence that jury could find for party, then it might be illegal ifthey do so.

7. What evidence should judge consider:a. all evidence for party that is opposed to directed verdict

b. just evidence that has been reasonably proven for party moving fordirected verdict8. JMOL: replaces two previous motions:

a. Directed Verdict: judge instructed jury to find a certain way.b. Motion JNOV (Judgment notwithstanding the verdict/nonobstante

veredicto): after jury returned verdict and judge doesnt agree.9. Pennsylvania Railroad v. Chamberlain (man killed by train)

a. Ds witnesses were on car behind and said they didnt hit him. Pswitness was 900 feet away at awkward angle, didnt see collission, butheard crash, and claims P was knocked off and killed.

b. Court held that Ps witness was not credible enough to meet burden ofproduction. Bundy says this might not have been correct, but dependson interpretation of witnesss credibility. Technically, if dispute of fact,it should go to a jury.

E. Summary Judgment1. Rule 56:

a. Granted after pleadings and discoveryb. Granted if two criterion are met:

1. no genuine issue as to any material fact and2. moving party is entitled to judgment as a matter of law.

c. D may move at any time. P must wait 20 days after filing complaint.2. Two ways to pierce the Summary Judgment:

a. Affirmative proof that other sides arguments are falseb. Analysis of other sides arguments and demonstration that they are

false.3. Bundy Handout

a. Most Common Form = Against Party with Burdens1. R.56(c) = affirmative showing that no material issue of fact is

present. If no showing, D doesnt have to do anything, but can justpierce pleading via 2(b) above.

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***Policy against SJsa. Trial is best way to measure evidenceb. Parties will use SJ to harass opponents

***Policy favoring SJsa. Imposing such a burden makes it too difficult to get rid of

meritless claimsb. How to obtain SJ without Burdens (D seeking SJ)1. Affirmative evidence that negates critical factual element of claim2. Point to absence of evidence to support non-moving partys

position***Policy shift:

a. reduced enthusiasm for trials as dispute resolution mechanismsb. rising concern with costs of litigationc. some risk that allowing such motions will allow more latitude for

harassmentc. How to defeat SJ with Burdens (P against SJ)

1. Must show that they have or WILL have evidence at trial1. Look to materials on file, get new materials, ask for +discovery under R.56(f)

2. Material doesnt have to be in admissable format R.56(e)2. What if no additional evidence?

a. Normally, Judges only accept 1 but not 2(a) or 2(b)***Policy in favor: making non-moving party get ev is good to verifyclaims merit***Policy against: lawyers can verify claims merit or wouldnt take itto trialb. Four judges in Celotex said could win by naming witness and

what they would say even if witness didnt existc. Two alternatives if no additional material available or likely to be

available:1. hope witness changes his story at trial2. discredit witness via demeanor\

3. How much ev necessary to defeat SJ?1. If ev is there, easy to win2. If relying on c(1) or c(2), not likely to win

d. How to obtain SJ with Burdens (P seeking SJ)1. Must introduce ev to support position b/c has burdens

a. Cannot win by pointing to lack of ev in Ds case2. But showing for ev is even MORE demanding than Adickes case

b/c will have to show it is so strong that no reasonable jury coulddisbelieve it or draw an inference adverse to Ps case

4. Adickes v. SH Kress & Co. (restaurant discrimination):a. P didnt provide ev that policemen were in store. D didnt provide ev

that they werent. However, they claimed that since P didnt provideevidence that they were, should be Sum Judge.

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b. Court held no b/c although Ps sparse ev was not enough to win a trial,it was enough to get P to a jury. Burden is placed high for thosepushing for summary judgment because 1. Ends trial so abruptly, and2. Needs to go before a jury.

c. Alternatively, court implies that the Ds could have analyzed Ps

evidence and shown why it was not true. But they failed to do this aswell.5. Celotex Corp v. Catrett(asbestosis exposure in DC)

a. Woman produced documentation that was inadequate to prove herclaim. Celotex did not present ev to prove otherwise, but proved thather claim, on its face, was inadequate. Trial Court granted SumJudge, but AC said D didnt meet its Adickes burden of disproving Psclaims.

b. Sup Court agreed and granted new trial. Dissent noted that theyshould have reinstated summary judgment since it was shown that theevidence was insufficient to establish an essential element of the non-

moving partys claim.

V. Preclusion and JoinderA. Preclusion:

Claim Preclusion (res judicata)1. The Same Claim

a. Frier v. City of Vandalia (replevin of cars): holding that1. If same ev or factual overlap for both claims, (i.e. a

common core of operative facts) = precluded (narrow,precludes less claims, good for P)

2. If same transaction, (i.e. matters related in time, space,

origin and motivation) = precluded

(broad, precludes more claims, good for D)3. Ps try to split suits three different ways:

a. Theories of recovery (different theories of why Pshould win)

b. Arithmetical splitting (damages)c. Splitting of Relief (of possible claims, like Frier)

4. Exceptions to splitting rulea. When second claim not yet ripeb. When jurisdiction is not appropriate

b. 28 U.S.C. 1738: use Illinois law b/c if previous action instate court, state law governs:

2. The Same Partiesa. Searle Bros v. Searle

1. Holding not same party unless bound by privityExamples of privity

2. Especially important in this case b/c it was divorceproceedings in which sons would have no say as parties

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a. Albright v. Reynolds Tobacco: action for injuriesand action for wrongful death = in privity b/c family

b. Jones v. Bradley: insurance co in privity with itspolicy holder

c. Rynsburger v. Dairymens: board of ed in privity

with state atty generalExamples of no privitya. Arsenault v. Carrier: child and mother not in privity

for child support actionb. Olivarez v. Broadway Hardware: Distributor not in

privity with manufacturerc. Land v. Sellers: Father not in privity with his son for

wrongful acts of the son3. After a Final Judgment

a. Usually required for claim preclusion to take placeb. If on appeal, depends on state

1. Sometimes is final even though appeal is pending2. In others, appeal automatically voids a judgment untilfinal adjudication of appeal

4. After a Judgment On the Meritsa. Where it is on the merits:

1. Full jury trial2. Directed Verdict3. Summary Judgment

b. Where should not apply1. Dismissal under Rule 37 for failure to comply with

discovery orderc. Might apply, might not apply:

1. Rule 12(b)(6): failure to state a claima. Should apply if lawyer did good job but there was

really no substantive claimb. Should not apply if lawyer did poor job and therefore

claim was not adequately presentedIssue Preclusion (collateral estoppel)

1. The Same Issue:a. Four characteristics:

1. issue of fact or law is2. actually litigated and determined by3. a valid and final judgment and (see above)4. the determination is essential to the judgment

b. Criminal vs. Civil:1. if civ first, does not preclude issue in criminal b/c higher

burden of persuasion in criminal2. if crim first, does preclude issue in civ

2. An Issue actually litigated and determined

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a. Illinois Central Gulf Railroad v. Parks: holding that if twodifferent issues and it is not clear which one was basis forjudgment b/c jury didnt write up an opinion, then was notactually determined.

b. NOTE: not claim preclusion b/c ev was slightly different.

BUT, if had used transaction theory, wouldve beenprecluded b/c same transaction.c. Hypos:

1. What if new witness? No, b/c same issue. Shouldvebrought witness before

2. What if new theory? No b/c same claim. Splitting oftheories of recovery not allowed.

3. What if crim action first? No b/c higher standard in crimaction and therefore would have to retry in civ action.

3. An issue essential to the judgmenta. If too many findings in decision, it is not clear which one was

essential to justify the decision.b. However, RULE is that if found on alternative grounds,BOTH alternative grounds are binding and essential tothe judgment.

c. Halpern v. Schwartz: (bankruptcy) holding that if judgmentis based on alternative grounds, not fair to say that one wasabsolutely determinative b/c1. Issue might not have received critical analysis since there

were alternative causes of action2. Issue was not given procedural safeguard on appeal

since would dismiss in light of other decisions.3. Problematic for bankruptcy cases b/c

a. Victims will have to look ahead to see if they will beprecluded in future litigation for decisions made todayto cover their bases. This will obviate the point ofC.E. and actually increase litigation.

b. Victims already have no resources for additionallitigation

d. Winters v. Lavine: (Christian Science) holding thatdecision based on alternative grounds bars relitigation ofany of those grounds.

e. RSTMT 28/29 says CE does not apply if:1. first claim was not adequately reviewed2. others listed on YZ page 8513. COURTS REJECT RSTMT and assume it was tried

correctly and fairly the first time.4. Between which parties? (MUTUALITY)

a. Old Mutuality Rule: neither party could use a priorjudgment as an estoppel against the other unless bothparties were bound by the judgment. This was inefficient

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and allowed for issues to be relitigated that had alreadybeen determined in absence of one of the two parties.

b. New Mutuality Rule: An issue can be precluded against alitigant against any other party so long as they were given afull and fair opportunity to litigate it in previous litigation.

c. Example1. If D loses litigation in first suit, IS bound by it in secondsuit b/c had FULL AND FAIR opp to litigate it

2. If D wins litigation in first suit, IS not bound by it and willhave to face the issue against new Ps b/c might bedifferent in their case

d. Defensive vs. Offensive1. Defensive, N/Mut CE: (one P, several Ds)

a. D wants to CE P from contesting issue alreadyresolved against P

b. GOOD b/c will force P to bring as many Ds as can in

first suit2. Offensive, N/Mut CE: (one D, many Ps)a. P wants to CE D from contesting issue already

resolved against Db. BAD b/c will increase litigation. Ps will wait and see.

If previous P wins, they get to CE issue. If they lose,P can retry it themselves.

e. Parklane Hosiery Co. v. Shore: (sharehold info) holdingthat offensive, N/Mut CE is usually bad, but in a situationwhere Ps cannot join together and/or where D hadopportunity to litigate it fully and fairly, its OK.

f.State Farm v. Century Home Components:

holding thatwhen there are incongruous results in prior trials offensiven/mut CE is bad.***NOTE: if only one result, can usually CE, but if manyresults and they differ, cannot do so.

g. BIG EXCEPTION: US Government. If it loses, it still gets todispute the issue in future suits.

5. Exceptions to Issue Preclusion1. Party against whom preclusion is sought could not, as a

matter of law, have obtained review of the judgment in theinitial action.Example: if acquitted in first judgment

2. Issue is one of law anda. claims are unrelated orb. law has changed in meantime

3. Differences of quality or procedure in two courts justify newhearing of issue

4. Burden of persuasion was higher in initial action (say it wascriminal) and now there is less of a burden

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5. Clear need of new determination b/ca. adverse impact of determination on public interestb. action was not suffic foreseeable at timec. party did not obtain full and fair adjudication in initial

action

B. Joinder1. Compulsory vs. Permissive:a. Permissive: can usually bring as many claims that involve the same Ps

and same Dsb. Compulsory: want to consider effects of preclusion

2. Joinder of Claims (RULES 13/18)1. Rule 13: Counterclaim and Crossclaim

a. Compulsory Counterclaims: required by D so long as1. involves same transaction or subject matter and2. does not require third-parties over whom court lacks jurisdiction

b. Permissive Counterclaims

May issue counterclaim that is same subject matter but notnecessarily same transactionc. Counterclaims Exceeding Opposing Claim

May exceed amount sought in original claimd. Counterclaim against US

Does not enlarge limits on counterclaiming against USe. Counterclaim maturing or acquired after pleading

May be presented as supplemental pleadingf. Omitted counterclaim

If by negligence or oversight, court may allow via leave to amendg. Cross-claim against Co-Party

so long as subject matter and same transaction or counterclaimrelated to property that is subject matter of original action.

h. Separate Trials; Separate JudgmentsCourts can sever them off

2. Rule 18: Joinder of Claims and Remediesa. Joinder of Claims:

1. may join as many claims as the party has against opposingparty

2. ALTHOUGH, per 42(b), a judge may sever off other claims ashe so desires

b. Joinder of Remedies; Fraudulent ConveyancesDifferent claims (sequential) by the same party that depend on oneanother may be brought together, but the outcome of the secondwill depend on the outcome of the first

3. by Plaintiff1. Fed Rules

a. Not REALLY compulsory, but Ps will want to do so b/c they willbe precluded otherwise

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2. And jurisdictiona. If Question on this, see p.894 and 1367

4. by Defendant (counterclaims)1. Plant v. Blazer Financial Services: (TILA) holding that

counterclaim was compulsory. Applied four tests for compulsory

counterclaims:a. Are issues of fact and law reaised by counterclaim and claimlargely the same?

b. Would res judicata bar a subsequent action on Ds claim absentcompulsory counterclaim rule?

c. Will same ev support or refute Ps claim as well as Dscounterclaim?

d. Is there a logical relation between claim and counterclaim?****If affirmative answer to any one of these, then will becompulsory counter-claim.Court in Plant chooses #4: logical relation

3. Joinder of Parties (RULES 14/20)1. Rule 20: Permissive Joinder of Partiesa. Permissive Joinder:

All Ps who seek relief against D, even if severally, may be joined.All Ds who are sought relief from P may be joined together, even ifseverally.

b. Separate Trials:May separate out if will be embarassed, delayed or put to expenseby inclusion of party against whom the party asserts no claim andwho asserts no claim against the party.

2. By Plaintiffs1.

Mosley v. General Motors Corp.: (blacks/women)holding that

two rules are applicable to joinder of parties:a. Same question of law or fact (in this case discrimination)b. Same transaction or series of ocurrences (in this case firing,

promotions, etc.)2. BUNDY disagrees w/this holding:

a. not really same issueb. not really same transaction: different times, different witnesses

3. Rule 14: Impleading: Third-Party Practicea. When D may bring in third party:

At any time so long as third-party will owe them part or all of therecovery amount (derivative claims: contribution or indemnity)

b. When P may bring in third party:Same as w/D

c. Admiralty and Maritime:See section if needed p.38

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4. By Defendants: Third-Party Claims1. Watergate Landmark Condo Assoc v. Wiss: (leaky roof) holding

that per Rule 14, is OK if they owe you all or part of recoverysought against you, but not to exculpate guilt completely.

2. Key to note:

a. Federal Law vs. State Law: in states, not usually so harsh. Fedwants to allow P to control as much of process as possible.b. if original claim had been so broad as to not specify what was

problem, then Condo assoc (designers) could implead Brisk(installers).

c. Just because can bring a party does not mean jurisdiction hasbeen satisfied.