Civ Pro III

Question 1

Right to Jury Trial

Answer 1

Federal - 7th Amendment - for suits at “common law” involving more than $20

State - no right given by Constitution. May be found in state constitution.

Must be:

1. Timely demand for jury trial
2. Issues of fact

Question 2

Equitable Remedies

Answer 2

Injunction
Specific performance of contract
Restitution
Rescission of contract

Question 3

Suits at “Common Law”

Answer 3

If it would be heard by the historical “Law” or Common Law court vs. Equity

Courts of “law” typically were those awarding damages.

So, look at current claim and look back to see if it would be historically heard in court of law to meet the 7th amendment right to jury trial test.

Question 4

Summary Judgment

Answer 4

S/J provides the court an opportunity to look beyond the pleadings to determine whether a factual dispute is supported by evidence.

Question 5

12(b)(6)

Answer 5

Failure to state a claim upon which relief can be granted. The “wrong” that the Plaintiff describes in his complaint is not recognized as a violation of any legal rights. Does the complaint state a legally sufficient claim? All facts are assumed as true. Viewed in light most favorable to Plaintiff.

Question 6

What can be used to support summary judgment?

Answer 6

Affidavits, depositions, answers to interrogatories, admissions, and admissible documents.

Question 7

Peremptory Challenges

Answer 7

Fed - 3 per party

CA - 6 per party or eight per side if more than two parties

Question 8

Federal size of civil jury

Answer 8

No less than 6 and no more than 12

Question 9

3 part test for allegations of discriminatory peremptory challenge

Answer 9

1. opponent of the strike must establish prima facie showing that strking party exercised the challenge for a discriminatory reason.
2. striking party must establish a gender or race neutral reason for the challenge. 3. court must determine whether the party opposing the strike has met their burden of showing purposeful discrimination.

Question 10

3 requirements for establishing a prima facie violation of the fair cross section requirement for selection of a jury pool

Answer 10

1. the allegedly excluded group must be a distinctive group in the community.
2. representation of the allegedly excluded group in jury pool is not fair and reasonable in relation to its representation in the community.
3. this under-representation is due to systematic exclusion of that group in the jury-selection process.

Question 11

Special Verdict

Answer 11

Jury answers factual questions for the benefit of the court who then applies the law to those answers.

Question 12

General Verdict w/ Interrogatories

Answer 12

Jury provides written findings of fact and renders a general verdict.

Question 13

Rule 60(b)(2) - Newly Discovered Evidence

Answer 13

5 Prereqs

1. evidence was discovered following trial
2. Due dilligence on the part of the movant to discover the new evidence is shown or may be inferred
3. The evidence is not merely cumulative or impeaching
4. The evidence is material
5. The evidence is such that a new trial would probably produce a new result