Civil Procedure Outline

I. Complaints

A. Rule 8(a) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.”

B. 3 problems with drafting a claim

1. substantive validity

a. do the given facts comprise entitlement to relief?

b. major premise (the law)

1) ex: “if the ∆ insults the π” and “if the π suffers anguish” and “unless the π provoked the insult” then π is entitled to compensation.

c. minor premise (the facts)

1) ex: ∆ insulted π, π suffered harm.

2. Burden of allegation

a. generally to the π for “if” to the ∆ for “unless”.

1) rule 8(c) lists most of the “unless”, but otherwise must look to case law for burden of allegation.

b. policy considerations

1) who has greater access to the proof (policy)

2) who has most efficient access to the proof (convenience)

3) who is causing the burden (fairness)

3. specificity of the allegation (how much detail) - “simple, concise, and direct.” - Rule 8(e); “pleadings shall be construed as to do substantial justice” - Rule 8(f) “plaintiff need not plead evidence” - Sierocinski

a. “code” states require more rigid pleadings than “rule” states.

b. goals of specificity:

1) determining the proper legal theory

2) determining the relevance of evidence

3) isolating legal issues for early determination

4) eliminate factual issues early

5) determining the bounds of res judicata

c. specificity is not needed where:

1) liberal rules of discovery - See Sierocinski

2) extensive pretrial motions/conferences

3) issue is not complicated

d. disfavored claims such as fraud, libel and deceit are often abused and hard to prove so there are special pleading requirements in Rule 9(b)

C. Definition of “claim” (legal theory or natural grouping of events?)

1. Rule 8(e)(2) allows alternate claims regardless of consistency

a. can state the same claim in several counts (redundancy)

b. can state different claims in the same count (joining under Rule 18(a).)

c. thus, the issue of the definition of claim is minimized for pleadings, assisting a π who is unsure about what he will have to prove after discovery.

2. Liberality of 8(e)(2) is subject to the obligations of rule 11.

a. 11(a) requires the attorney to sign the pleadings averring that they are not frivolous and are based on a “reasonable inquiry.” - See also Mohammed.

b. 1993 amendments relaxed sanctions:

1) making them discretionary

2) provided for a “safe harbor” of withdrawing frivolous motion/claim within 21 days after service by opposition of a motion for sanctions.

3) sanctions paid to the court as deterrents only, not compensation to other party for costs, reducing hostility

4) no longer deters attorney from making borderline frivolous argument for change in the law.

II. Answers/Motions (Defenses)

A. Answer must normally come within 20 days (12(a)(1)(a)) or plaintiff can take default under rule 55(a)-(b).

a. ∆ may be able to reopen under 55(c) and 60(b).

1) must show good cause.

b. under 12(a)(4)(A) if the court denies a pre-answer motion, the party must serve an answer within 10 days of notice of the court’s action

c. under 12(a)(4)(B) if the court grants a 12(e) motion for more definitive statement, then the party has 10 days to cure the statement.

1) also probably applicable to the other corrective motion 12(f) but left out on oversight.

B. Five types of defenses:

1. Dilatory Defenses - do not reach the merits of the case:

a. 12(b)(1) lack of subject matter jurisdiction

b. 12(b)(2) lack of jurisdiction over the person

c. 12(b)(3) improper venue

d. 12(b)(4) insufficiency of process

e. 12(b)(5) insufficiency of service of process

f. 12(b)(7) failure to join a party under rule 19.

2. Demurrer - challenges the legal sufficiency of the pleading

a. 12(b)(6) failure to state a claim upon which relief can be granted

b. 12(f) strike defenses for insufficiency (π’s equivalent to 12(b)(6)).

3. Denials- 8(b) - allegations that are not denied are admitted 8(d)

4. Affirmative defenses - 8(c) must go in answer

5. Corrective motions

a. 12(e) more definite statement

b. 12(f) strike immaterial or scandalous matter.

C. Two other actions/objections:

1. Counter-claim - rule 13

2. Implead - rule 14.

D. Answer or Motion??

1. All defenses and actions/objections listed above may be made by answer, except 12(e)-(f) which must be by motion.

2. Rule 12(b)(1)-(7) may be made by motion, before answer, at the option of the pleader.

3. Denials (8(b)) and Affirmative defenses (8(c)) must be in the answer, or are waived unless amended “of course” (Rule 15(a)).

a. this is not explicitly stated, but it follows from the structure of the waiver operation of 12(g) as it applies to 12(b) motions. (consolidation of defenses).

E. Preservation/Waiver of defenses:

1. Consolidation of defenses: 12(g)

a. all 12(b) defenses “then available” are to be joined into a single pre-answer motion, or they are waived (except 12(b)(6)-(7) which may be raised later).

a. bottom line: party is allowed only one pre-answer 12(b) motion (except super defense 12(b)(1))

2. Disfavored defenses: 12(h)(1)

a. 12(b)(2)-(5) (personal jurisdiction, venue, process, service) are lost unless made in the FIRST document (unless amended “of course” - Rule 15(a)), whether motion or answer.

3. Strong defenses: 12(h)(2)

a. 12(b)(6)-(7) can be raised through “trial on the merits,” but not after judgment.

4. Super defense: 12(h)(3)

a. 12(b)(1) lack of subject matter jurisdiction can be made at any time by any party, even upon appeal.

b. policy - public interest in keeping the courts in their proper place.

5. Correction objections

a. 12(e) motion for a more definite statement must be made “before interposing a responsive pleading,” so it is lost if not joined in the pre-answer motion under 12(g)

b. 12(f) motion to strike must also be made “before responding to a pleading”, but the court may make it on its own initiative at any time.

III. Replies

A. Rule 7(a) indicates that the π is not permitted to respond to an affirmative defense, or denial, unless ordered by the court

1. 7(a) allows replies to “counter-claims denominated as such.”

2. thus, court normally only orders replies if the counter-claim were mislabeled as a defense.

3. policy is to get on with trial once notice is given.

a. At the pre-trial hearing under 12(d), the π will have a chance to reply to the affirmative defenses of 8(c), as well as any 12(b) motion raised by the defendant.

B. Rule 8(d) treats any averments in a pleading to which no responsive pleading is allowed as denied or avoided.

C. Rule 12(f) is the π’s equivalent of the ∆’s 12(b)(6) for defenses (but he can make regular 12(b)(6) for counterclaims).

1. π may assert that the affirmative defense set forth in the answer is “insufficient”.

2. this right is preserved through “trial on the merits” by 12(h)(2), and thus is a “strong counter-defense.”

IV. Counter-Claims/Cross-Claims

A. Compulsory counter claims - Rule 13(a)

1. ∆ “shall” put the counter-claim in the answer if it “arises out of the same transaction or occurrence” and is available at the time of response.

a. the “shall” language implies that it is waived if not brought in the pleading.

1) but if the claim arises during the action, the defendant may supplement his counterclaim under 13(e) with permission of the court.

b. 13(f) allows leave to amend if failure to counter claim was excusable. -BOP on moving party

1) contrast with 15(a) for π’s claims, which may allow amendment without permission, and BOP is on opposing party to show “prejudice”

c. a motion is not a “pleading” so it does not have to contain a counter claim

1) ex: 12(b)(6) motion granted before answer does not preclude bringing a separate action for what would have been compulsory counterclaim if the ∆ had answered instead of moved.

d. the test of “same transaction or occurrence” is whether the same evidence will support or refute both claims - Williams v. Robinson.

2. promotes efficiency

3. Rule 18(a) states that the π “may” join claims, but 13(a) states that ∆ “shall” counter claim for claims arising out of the same transaction or occurrence.

a. only superficially inconsistent because the π would still be precluded by judicial doctrine of res judicata (like ∆ is precluded by rule 13(a)) from bringing his claims piecemeal if they all arose out of the same occurrence.

1) but if the claim arose during the action, the π may supplement under 15(d) with court permission

B. Permissive Counter claims - Rule 13(b)

1. ∆ “may” make any counter claim, even for claims “not arising out of the same transaction or occurrence.”

a. “may” indicates optional.

b. counter claim may be wholly unrelated to the original action.

1) for “convenience,” the court may “order a separate trial of any...counterclaim” under Rule 42(b).

2) court may enter judgment as to “fewer than all the claims” under 54(b).

2. counter claim is optional because it doesn’t necessarily promote efficiency.

C. Cross-claims under 13(g)

1. ∆ “may” bring a cross claim “against a co-party arising out of the same transaction or occurrence.”

a. “may” indicates optional.

b. prevents the underlying claim from being stalled by exponential growth of claims by other co-parties.

D. Counterclaims or Cross-claims reverse the role of the parties with respect to that claim.

1. Response is required under 7(a), failure to reply or move in time brings admission under 8(d) and default under 55(b) and (d).

V. Amending the Pleadings (Rule 15).

A. Amendments before trial

1. Rule 15(a) allows amendment “once as a matter of course at any time before a responsive pleading is served.”

a. if no responsive pleading is allowed under rule 7(a), then the party may amend within 20 days as long as it has not been put on the calendar.

b. an “answer” is a “responsive pleading,” a motion is not, so a party may still amend without applying for leave if the opponent moves 12(b)(6) in response to the original claim.

1) note that 15(a) states that a party “shall plead in response to an amended pleading” so technically, a 12(b)(6) motion would not be allowed in response to the amended, but this is an oversight in the rules.

2. After the grace period expires (either “responsive pleading” is served or the 20 days expires), the party may amend:

a. with the leave of the court by motion; or

1) “leave shall be given when justice so requires.”

2) provides max opportunity to get to the merits of the case, since pleadings are for general notice only

b. by “written consent of the adverse party.”

B. Amendments after trial has begun (or even ended)

1. There is no absolute limit on when a pleading may be amended.

2. Rule 15(b) (first two sentences) treat the pleadings as being amended when the issue is tried differently than the pleadings at trial, and neither party objects.

1) allows the party to expressly amend to avoid confusion later as well.

3. Rule 15(b) (last two sentences) provide for the opposing party to show prejudice in order to block the entry of an amendment when the issue is being tried differently than the pleadings

1) must be prejudice on the merits of the case, such as unfair delay, inability to prepare adequately, etc.

2) contrast with 13(f) which allows amendment of counterclaims only if the moving party can show “oversight”, etc. - different standard, different burden of proof.

C. Relation back of amendments - Rule 15(c)

1. 15(c)(2) allows relation back when the claim or defense “arose out of the conduct, transaction, or occurrence set forth...in the original pleading.”

a. because the role of pleadings is notice, this is usually interpreted broadly.

b. does not apply to 15(d) supplemental pleadings because the supplemental actions have “happened since the date of the pleading sought to be supplemented.”

1) this can result in technically barring the supplemental addition of a wrongful death action where the person dies after the statute of limitations expires for bringing the original negligence action. But policy behind S/L is not offended by allowing relation back anyway.

VI. Discovery Rules 26-37

A. In general, rule are intended to prevent surprise at trial, so their scope is broad under Rule 26(b).

1. Rule 26(b)(1) the “parties may obtain discovery regarding:

a. “any matter, not privileged, which is relevant.”

b. “need not be admissible” if it is “reasonably calculated to lead to the discovery of admissible evidence.”

1) ex: evidence of remedial measures is inadmissible to prove negligence, (evidence rule 407) but may still be discovered.

2) ex: your own statements in depositions are usually inadmissible under hearsay, but your (and your opponent’s) admissions are admissible.

3) ex: evidence not admissible under hearsay may become admissible to impeach the witness at trial, or to substitute for a missing witness.

c. but 26(b)(2) allows courts to limit discovery at their discretion.

2. Rule 26(c) prevents abuse of the liberal discovery rules by issuing a protective order “for good cause shown” after a “good faith...effort to resolve the dispute without court action.”

3. Rule 26(g) prevents abuse by requiring the attorney to sign under risk of sanctions (similar to Rule 11).

4. Discovery is meant to proceed automatically under 26(a)

a. Rule 26(a)(1) provides that “a party shall, without awaiting a discovery request, provide to the other parties:

1). contact info for persons “likely to have discoverable information” concerning the facts

2). copies of relevant documents, etc.

3). computation of damages; and

4). copies of insurance agreements.

b. Voluntary disclosure must happen within 10 days of discovery conference 26(f).

c. Physical or mental examination under rule 35 is the only discovery device that must be initiate by motion to the court.

d. 26(e) imposes a duty to

1) supplement disclosures at appropriate intervals if the new or incorrect information has not “otherwise been made known to the other parties.”

2) seasonably amend prior responses to interrogatories, etc. if the new or incorrect information has not “otherwise been made known to the other parties.”

e. 26(a)(2) requires a detailed report by expert witnesses showing all facts, basis and opinions.

f. 26(b)(4) allows deposition of experts without a court order if they are testifying experts.

g. 26(b)(3) allows discovery of written work product only under “substantial need” and “undue hardship” to obtain the materials by other means.

1) partially codifies Hickman v. Taylor’s ban on the discovery of “core” work product of mental processes, opinions, and strategy.

2) only applies to “documents and tangible things” so Hickman is still needed to prevent party from being compelled to disclose “core” work product orally.

e. failure to cooperate results in Rule 37 sanctions

1) party must first get a motion to compel discovery under 37(a), then they can

2) seek sanctions of fines, attorney’s fees, dismissal or contempt under 37(b)

3) if it is really bad, party can go straight to 37(c) and skip to motion to compel.

B. Depositions upon Oral Examination (Rule 30)

1. Leave of the court is not needed except:

a. 30(a)(2)(A) when the total number of depositions (oral under 30 or written under 31) made without leave exceeds 10

b. 30(a)(2)(B) when that person has been previously deposed.

c. 30(a)(2)(C) the party seeks to take a deposition before the discovery conference of 26(f).

2. non parties must be subpoenaed under Rule 45(b), but parties are required to show up simply by notice of the deposition under Rule 30(b)(1).

a. if documents are required of a party, a rule 30(b)(5) states that a rule 34 request may be made.

b. if documents are required of a non-party, a subpoena duces tecum under 45(d) and 45(a)(1)(C).

c. if a party does not cooperate, sanctions under rule 37(a)(2)(A) and then 37(b) may be taken.

d. if a non-party does not cooperate, sanctions under rule 45(e) may be taken.

3. Objections are noted under 30(c), but the deponent still must answer, and the objection awaits trial.

1) objections may be made for the first time at trial under 32(b) (so they are not waived if not made at the deposition) unless under 23(d)(3)(A) or (B) they could have been corrected (form objections - leading questions, etc.) because it would be unfair to exclude evidence that the examining party could have corrected had he known.

2) under Rule 30(d) a party may instruct a deponent not to answer only when the answer is privileged or the question is made in bad faith. Counsel advising unreasonable action may have to pay fees under 37(a)(4).

3) questions requiring application of law to facts are generally not allowed because rule 30 does not have a provision comparable to rule 33(c), and the party probably doesn’t know the law well enough. - See Umphres

4. Rule 29 allows the parties to “stipulate” away some of the formalities of oral depositions. The “usual” stipulations are:

a. objections as to form are reserved until trial (because they are not waived anyway) so as to lessen hostility.

b. no signing or filing required under 30(e) and 30(f) because authenticity may be easily proven.

c. the stenographer is qualified to admit the oath under 28(a) to prevent wasting time only to find out that the oath was invalid.

d. the deposing party pays for opponents copies under 30(f)(2).

C. Depositions on Written Examination, (Rule 31)

1. similar to oral examination, except they are written.

2. party is on his own when testifying under oath to the questions, but the opposing lawyer can have the questions for 30 days and serve questions for cross-examination.

3. normally used only when a non-party witness has limited technical information, not requiring legal analysis.

D. Interrogatories to parties - Rule 33

a. 33(c) requires answers to application of law to fact, perhaps delayed until later in discovery.

1). party can frame answers with help of lawyer so application of law to fact is proper.

2) however, questions of pure law are not allowed (see O’Brien) because this is an invasion of the “core” work product protected by 26(b)(3) and Hickman. (Can ask legal theory but cannot demand written memo outlining legal theory)

3) not an admission under Rule 36, so the party can change legal theories if necessary later in discovery. See Freed v. Erie Lackawana

b. 33(b) allows a written objection in lieu of an answer.

1) 33(b)(4) states that failure to state a ground for objection to an answer waives that ground unless good cause is shown.

4. Production of documents and things - Rule 34

a. especially helpful in cases where there is important physical evidence that needs to be preserved.

b. only to parties, get non-parties under subpoena duces tecum Rule 45(d) and 45(a)(1)(C).

5. Physical and mental examinations - Rule 35

a. only applies to parties, not third-party witnesses.

1) can discover information about witnesses eyesight by deposition, subpoena of medical records, etc.

b. only made on motion, must be for “good cause,”

1) ability to obtain the info by other means is relevant.

c. the condition must be “in controversy.”

1) π bringing personal injury action explicitly places condition “in controversy” - Sibbach.

2) can apply from one co-defendant to another without bringing a cross-claim - see Schlagenhauf.

d. 35(b)(1) and (2) provide for swapping of medical reports between parties.

6. Requests for admission - Rule 36

a. Rule 36(a) failure to answer or properly object within 30 days is admission.

b. 36(a) can ask for the application of law to fact.

1) differs from Rule 33 in that the answer is binding.

c. 36(a) party can not fail to admit or deny based on lack of knowledge until after he makes a reasonable inquiry.

d. 36(b) insufficient answers or ungrounded objections may result in admission.

e. Rule 37(c) allows a party to “prove” the truth of a matter denied in a request for admission, and then get costs for “proving” it.

VII. Pretrial Conferences - Rule 16

A. Trend (since 1983) to promote broad scope case management by judges early on in the litigation, but individual judges have much discretion on how much management to give.

1. 16(a)(5) and 16(c)(9) even allows facilitation of settlement of the case.

2. same judge does pre-trial order as does trial, so judge feels less inhibited to determine issues up front.

3. done early within litigation (120 days)

B. Begins with mandatory scheduling order of rule 16(b).

1. avoids duplicative proof under 16(c)(4), 16(c)(5)

2. judge can move shaky issues up front in order to dispose of case more quickly under 16(c)(14)

C. Optional one or more pretrial conferences may follow.

D. More coercive than previous rules

1. 16(c)(16), 16(c)(6) and 16(f) imply more strict, coercive pretrial conference, but perhaps not enough to compel discovery unless lack of prosecution is done in bad faith. Identiseal

2. 16(c)(11) allows partial summary judgment if the party won’t stipulate to facts that should be stipulated.

3. Judge can impose sanctions for failure to appear or prepare under 16(f) even if the parties later settle.

a. judge has the power, according to case law, to compel the party to appear, not just the attorney.

D. Results in order under 16(e), which stipulates the action taken, and in effect supersedes the pleadings, because it controls the action from there forward. No contrary evidence will be allowed after the order is granted, unless it would cause “manifest injustice.”

1. Contrast to Rule 15(b) which requires opponent to show “prejudice” rather than moving party to show “manifest injustice.”

VIII. Motions to Avoid Trial on the Merits

A. Motion for judgment on the pleadings (Rule 12(c))

1. Made after the pleadings are closed (summary judgment 56 can come before the pleadings are closed, but they can still be amended.)

a. Can only be used to resolve questions of law, not fact.

1). Ex: if the answer admits the allegations of the complaint, but sets up two affirmative defenses, the motion will be granted only if both defenses are legally insufficient (if only one is bad, strike it with a 12(f) motion.)

2). Counter-ex: motion will not be granted if the answer contains a denial because that affects a matter of fact.

3) however, if answer doesn’t deny, 12(c) can be used in place of a 12(f) to get total victory.

4) can also be used in place of a late 12(f), 12(b)(6) or 12(b)(7) because it is preserved under 12(h)(2), but it will not get total victory.

5) will be converted to a Rule 56 motion for summary judgment if it contains facts outside the pleadings.

b. Treats all of adversary’s allegations as admitted, but his own allegations are taken as true only if admitted by opponent.

1) Result:. 12(c) motion by the ∆ takes on no added strength by virtue of affirmative defenses in his answer because they are taken as denied anyway under rule 8(d).

B. Motion for Summary Judgment (Rule 56)

1. 56(a), (b) Can be filed by either party in any type of case, even before the pleadings are closed.

a. π must wait 20 days after complaint filed, ∆ can bring it any time.

2. Ordinarily accompanied by affidavits in support of the contention that there really is no genuine issue of fact.

a. 56(e) The opponent may enter admissible counter-affidavits with contrary facts based on the personal knowledge of the affiants, but may not simply rest on the denials in his pleadings.

b. if more time is needed to conduct discovery and get affidavits, 56(f) allows for delay or postponement of ruling on motion.

3. Granted only if a “reasonable trier of fact” could not find for the opponent on the matter.

a. Ex: statute of limitations has run - no reasonable trier of fact could find that it has not.

4. Not used to actually resolve a genuine factual dispute that is found to exist, only to identify whether there are any.

a. ex: if π provides 10 credible affidavits, and ∆ only provides 1 suspicious affidavit, motion will be denied.

b. counter-ex: if π provides conclusive evidence of admission by ∆, then motion will be granted.

5. 56(c) and 56(d) May be partial in nature, narrowing the scope of the dispute for trial.

a. ex: establish liability for personal injury, but leave damages issue for trial.

6. For ∆’s it can serve the equivalent of 12(c) for π to get total victory.

a. because π has burden of proof, ∆ could even move 56 without alleging any facts -forces π to produce critical evidence early.

7. A 12(c) or 12(b)(6) that attempts to allege facts outside the pleadings can be transformed into a 56.

8. Can be used as a discovery tool to “force the opponent’s hand”.

a. disadvantage: encourages opponent to prepare better.

9. Often denied in three types of cases:

a. negligence case - facts can be proven, but whether it is negligence is normally left to jury to decide.

b. important, broad reaching policy decisions - case precedent is stronger when it is backed up by a full trial and opinion. (scope of appeal is de novo and thus, successful appeal results in whole new trial)

c. fraud cases - involve a mental state more properly determined by “feel” of jury.

d. present trend is allow more summary judgments because of judicial control/involvement in litigation process.

IX. Provisional Remedies- Seizure of Property (Rule 64) Preliminary Injunctions & Temporary Restraining Orders (Rule 65)

A. Rule 64 Seizure of Property (state law applies) - Obtained to prevent irreparable harm to the π in advance of trial, or the possibility that he won’t collect after a successful trial.

1. Attachment - seizure of ∆’s property to give π security that the judgment he hopes to obtain will be collectible.

2. Garnishment - property held by a third person, but belonging to the ∆ is made subject to the π’s claim.

a. ex: ∆’s bank deposit or, to a limited extent, wages.

b. requires proper service on the third party.

c. third party who violates the garnishment order can be forced to pay out of his own pocket.

B. Injunction - directs ∆ to do or refrain from doing specific acts. Strictly construed to avoid undue limiting of ∆’s rights.

1. Rule 65(a)(1) requires that no preliminary injunction will be given without notice.

2. Rule 65(b) provides for temporary restraining orders when the harm feared by π may be done before the court can hear and decide the case.

a. May be done without notice only upon a sufficient showing of need and inability to serve notice in time.

b. Good for 10 days only without good cause or permission of ∆.

c. Must be followed immediately by an application for a preliminary injunction.

d. ∆ may move for dissolution of the TRO upon 2 days notice to π.

3. Rule 65(c) Both TRO’s and preliminary injunctions require the π to deposit a security bond for damages to the ∆ in case π is wrong.

4. Rule 65(d) the order granting a TRO or preliminary injunction shall be clear, and binding only upon the parties to the action and their agents, or parties in concert with actual notice of the order.

C. Strategy

1. move for preliminary injunction and at the same time, move for a TRO.

2. then serve the motion for P.I. on the opponent, and include the already effective TRO.

3. conduct hearing for P.I. - if successful, it supersedes the TRO. (might be consolidated with trial on the merits under 65(a)(2).

4. conduct trial on the merits - if successful, permanent injunction replaces TRO.

D. Standard for granting a preliminary injunction.

1. irreparable harm to the π. (damages insufficient)

2. harm to the ∆ (whether π’s bond is adequate to cover)

3. π’s likelihood of success on the merits

4. public interest in the injunction (third parties, etc.)

E. Appeal of a Preliminary injunction:

1. §1292(a)(1) grants the right of appeal of preliminary injunctions even though they are only “interlocutory decisions” (and not final decisions under §1291).

2. Standard of review on appeal:

a. limited - Preliminary injunction should not be reversed unless it is “abuse of discretion;”

b. Rule 52(a) provides that findings of fact by the judge with respect to “interlocutory injunctions” shall not be set aside unless “clearly erroneous.”

X. Juries

A. Rule 38(a) preserves the right of jury trial as in the 7th amendment to apply to federal cases.

1. 7th amend - “jury trial right is preserved as at common law” at time of constitution (1791).

a. claims “at law” (damages) entitled π to a jury.

b. “equity” claims (injunctions, mandamus, etc.) - no jury.

c. thus merger of law and equity of Rule 2 is not complete.

d. new statutory causes of action are treated as their most similar cause of action existing in 1791.

B. 38(b) and (c) any party may request within 10 days after service of last pleading on the triable issue (normally put in complaint, or in answer by ∆) or it is waived.

C. 39(c) allows advisory juries - findings binding with respect to legal issues (where jury is entitled), advisory to judge with respect to equitable issues (jury not entitled).

D. Rule 40 provides that local rules are to be used for getting the case on the calendar

1. some require action by the party, some are automatic

E. Rule 47 selection of jurors has 3 stages:

1. preliminary statement - used to ingratiate yourself to jury, but statements must not be argumentative.

2. voir dire - questioning the jurors under oath.

3. challenges -

a. peremptory - normally 3. (Rule 47(b) and §1870).

b. for cause - unlimited (Rule 47(c))

F. Jury Size:

G. Unanimity of Jury

XI. Trial

A. Burden of Proof

1. Burden of Production

a. decided by the judge - usually follows burden of allegation.

b. may shift between the parties.

c. standard is whether a rational jury could find that this issue is proven by a preponderance of the evidence.

2. Burden of Persuasion

a. persuade the jury

b. does not shift between parties

c. standard is preponderance of the evidence.

B. Motions seeking judgment

1. Jury trials - Rule 50(a) judgment as a matter of law - after a party has been fully heard” on an issue

a. standard is “no legally sufficient basis for a reasonable jury to find on that issue”

b. 50(b) provides it may be may at any time before submission of the case to the jury.

c. treated as an adjudication on the merits (with prejudice) but the court may allow the plaintiff to voluntarily withdraw under 41(a)(2) instead of granting 50(a).

2. Non-Jury trials - Rule 52(c) judgment on partial findings - after a party has been “fully heard” on an issue

a. standard is whether the claim could be maintained without a favorable finding on the issue that the judge has decided against the party.

1) don’t need a reasonable jury standard because the judge is the trier of fact- if he has decided against the party, that’s it.

b. available to either π (if ∆ had burden of proof on something)

c. standard of review on appeal is “clearly erroneous”, thus it is better than a Rule 56 summary judgment because the party has been fully heard.

XII. Federal Rules of Evidence

A. Admissible evidence must be:

1. “material” - measure of the applicability of the proposition asserted to the case.

a. ex: if ∆ kicked you in the groin, that is material in a battery action, but not a negligence action because malice is not a material element of negligence

2. “relevant” - measure of the logical relationship between the evidence and the proposition asserted.

a. ex: if ∆ was drunk, that is only relevant if it occurred during the proper time frame.

3. “competent” - measure of the authenticity of the evidence and policy

a. ex: hearsay is not “competent” because of authenticity problems

b. ex: privileged information is not “competent” because of public policy.

B. Basis of Federal Rules

1. 401 defines what is “relevant evidence”

a. tendency to make a material fact more or less probable

b. easy standard

2. 402 states that “relevant” evidence is admissible unless it is not competent

3. 403 states that even if it is relevant and competent, it may be excluded by the judge if its probative value is substantially outweighed by the danger of prejudice, confusion or waste of time.

a. used when probative value for proper purpose is slight, and improper purpose is great.

4. 105 - doctrine of limited use

a. evidence may only be used for purposes for which it is proper

1) ex: evidence of subsequent remedial measures under 407 is only admissible to show ownership.

2) ex: hearsay may be used to impeach a witness but not to prove the proposition for which it is asserted.

C. Testimony of Witnesses

1. Rule 701 Opinions by lay witnesses are admissible only if:

a. rationally based on perceptions

b. helpful to a clear understanding of the case

1) must not be legally conclusory because that is not “helpful”

2. Rule 702-705 Expert testimony

a. can give testimony to which he has no personal knowledge under 703

b. standard is whether it would “assist the trier or fact” under 702

c. can make conclusions on ultimate issue under 704

d. can give opinion without laying out basis under 705

D. Privileges

1. the holder is the person who can seek exclusion

a. if court erroneously upholds a witness’s privilege, the damaged party can appeal.

b. however, if the court erroneously denies the witness’s privilege, damaged party can not appeal because he is not the holder of the privilege.

E. Hearsay - generally inadmissible as being incompetent 802

1. Definition 801(c) - an out of court statement offered for the purpose of proving the proposition asserted by the statement.

2. Policy- precludes the opportunity to cross-examine the declarant who made the statement in front of the jury - the person whose perception, memory and sincerity is at issue.

a. 801(d)(1) allows prior statements of the witness to be used to impeach him

b. 801(d)(2) admissions are likewise allowable - believed to be true because you don’t normally admit unless true.

3. Exceptions -

a. “technical hearsay” - doesn’t violate the policy

1) “Verbal Act” - the statement itself is the legal issue (ex: “I accept” is legal issue for contract)

2) Affect on hearer - the words have a legally significant affect on hearer (Ex: husband hears man say wife is adulterous. Not admissible to prove adultery, but is admissible to show “provocation.”)

3) declarant’s state of mind - (ex: declarant states “I am the Pope.” Not offered to prove piety, only to show insanity. Same as saying “I believe...”)

b. Business records 803(6) - believed to be independently reliable if made during the ordinary course of business.

c. 803(2) excited utterance - stress and excitement prevented a lie. See Handel

d. 804(b)(2) dying statements - witness must be unavailable.

e. 803(1) present sense impression - no time to fabricate a lie.

f. 803(24) and 804(b)(5) (misc.) residual exceptions that allow it in if it is relevant, best evidence, presumably reliable, and justice would be served.

4. Multiple hearsay - need an exception for every level to get it allowed.

5. Writings have authentication 901 and best evidence 1002 problems.

a. but may not be hearsay if it is a contract or the like because it is a “written act.”

b. business exception - can substitute for the testimony of the witness if he could testify out of personal knowledge to the same thing were he present.

XIII. Submission to the Jury and Return of Verdict (Rules 49, 51, 52)

A. Jury instructions - Rule 51

1. May come before or after closing arguments, or both, at the discretion of the judge.

2. Allows more flexibility to judge to manage the trial.

3. Party must object to the instruction before the jury retires to deliberate, but does not have to propose the instruction in order to object to the lack of giving of an instruction.

B. Special verdicts and interrogatories - Rule 49

1. Can be a special verdict - 49(a)

a. “special written finding upon each issue of fact.”

b. parties waive consideration of an issue if it is omitted by the court and the jury has retired.

c. tends to localize errors and minimize issues on appeal.

d. prevents jury consideration of irrelevant facts/issues.

2. Can be a general verdict with interrogatories - 49(b)

a. “written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”

C. Findings by the Court -Rule 52

1. in a non-jury trial, “the court shall find the facts specially and state separately its conclusions of law thereon.”

XIV. Motions after Verdict - Rules 50, 59

A. Motion for judgment n.o.v.

1. Rule 50(b) allows a deferred or denied motion for judgment as a matter of law at the close of evidence to be renewed as a motion for judgment n.o.v. after an adverse jury finding.

a. must have made a previous 50(a) motion at the close of evidence.

b. must be made within 10 days (“ten day motion”)

c. standard is same as motion for directed verdict, i.e. reasonable jury.

1) looks at movant’s evidence in light most favorable to movant, and only uncontradicted evidence of non-moving party.

d. judge may deny the motion at the end of evidence:

1) to prevent reversal causing a new trial.

2) jury may find for mover anyway, making it moot.

e. if judge is reversed on judgment n.o.v., there is no new trial, only reinstatement of jury verdict.

B. Motion for a new trial - Rule 59

1. Motion must be made within 10 days, (“ten day motion”) or the court itself can order a new trial on its own initiative after giving the parties a chance to be heard.

a. judge may reconsider his actions and thought he made a prejudicial error.

2. One standard is that judgment is against the “weight of evidence”.

a. Differs from judgment n.o.v.:

1). by definition results in a new trial,

2). standard is different than “reasonable jury” of 50(b).

3) looks at all the evidence

3. Another standard is failure to follow jury instructions.

4. Also, newly discovered evidence (civil trial only).

5. Only available for non-harmless errors, meaning ones that affect the substantial rights of the parties - Rule 61.

6. Usually joined with a motion n.o.v. under Rule 50(b).

a. if the judgment n.o.v. is granted, the judge may also conditionally grant the rule 59 motion for a new trial under 50(c), subject to the judgment n.o.v. being reversed on appeal. (makes no sense to say that “no reasonable jury could find” but that finding was “not against the weight of the evidence)

XV. Judgment

A. Demand for judgment - Rule 54(c)

1. in case of default, the judgment shall not be different in kind, or exceed the amount asked for.

2. every judgment shall grant relief that the party is “entitled” to, regardless of what they ask for, and even if they don’t ask.

B. Costs

1. Other than attorneys fees - Rule 54(d)(1)

a. granted as a matter of course.