civ pro final

Question 1

In alleging fraud or mistake, a party must do what?

Answer 1

State with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally

Question 2

If an item of special damage is claimed, what must happen?

Answer 2

It must be specifically stated.

Question 3

Examples of special damages

Answer 3

Lost wages, medical expenses

Question 4

Examples of general damages

Answer 4

Pain and suffering and mental anguish, in a personal injury case

Question 5

Three things needed in a complaint

Answer 5

(1) a short and plain statement of grounds for Jx;
(2) a short and plain statement of the legal claim; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Question 6

When a party fails to plead or show up (and the failure is shown by affidavit or otherwise) what does the clerk need to do?

Answer 6

The clerk must enter the party’s default.

Question 7

If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, what must the clerk do? If the sum can’t be ascertained what happens?

Answer 7

• The clerk. . . must enter judgment for that amount and costs against a defendant who has [defaulted]
• In all other cases, the party must apply to the court for a default / final judgment.

Question 8

Under what circumstances might a court set aside a default judgment?

Answer 8

(O) good cause;

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial. . . ;
(3) fraud. . . by an opposing party;
(4) the judgment is void [lack of SMJ];
(5) the judgment has been satisfied, released or discharged. . .;
(6) any other reason that justifies relief.

Question 9

In a default judgment, does the court have discretion in changing the amount or type of damages? What about in a regular judgment?

Answer 9

No. The default judgment can be less than what the party asked for but never more. As well the type of damage has to be the same whereas in a regular judgment more awards can be given than what was asked for and more types of damages

Question 10

What five things may a court strike from a pleading?

Answer 10

1. An insufficient defense
2. Redundant statements
3. Immaterial statements
4. Impertinent statements
5. Scandalous matter

Question 11

What is the standard for deciding whether to strike something from a pleading?

Answer 11

Do not grant a motion to strike unless it is it absolutely clear that the item has no possible bearing on the litigation.

Question 12

In filing an answer or amended answer (or amended complaint) may a party file a motion for a more definite statement from the other party?

Answer 12

• Yes if the initial statement was so vague or ambiguous that the party cannot reasonably prepare a response.
• The motion must point out the defects and the details desired

Question 13

What are the 7 Motion to Dismiss reasons?

Answer 13

1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a required party

Question 14

Which of the Motion to Dismissals / Affirmative Defenses does the Defendant waive if they don’t raise it in their pre-answer motion?

Answer 14

PIR

• Personal jurisdiction (12b2)
• Improper venue (12b3)
• Insufficient process/service of process

Question 15

Which rule 12B motions are never waivable?

Answer 15

• Failure to state a legally actionable claim
• Lack of subject matter jurisdiction
• Failure to join a party under compulsory joinder
  NOTE that if D files a motion to dismiss for failure to state a legally action claim AFTER it has filed its motion, the motion is called a motion for judgment on the pleadings

Question 16

What does granted with prejudice mean versus granted without prejudice - in regards to a Rule 12(b)(6) motion?

Answer 16

• Granted with prejudice: no leave to amend; ruling on the merits. For example, if claim is time barred or if P has not alleged a legally actionable claim
• Granted without prejudice: can refile elsewhere; not a judgment on the merits; or P can amend complaint with more detail, for example did not plead all the elements of a claim

Question 17

What happens if during a 12b motion evidence outside of the pleadings is introduced?

Answer 17

The motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all material that is pertinent to the motion.

Question 18

If in its answer the defendant does not have sufficient information to respond to part of the allegation, what must it do?

Answer 18

State this. It will have the effect of a denial.

Question 19

Can a party deny part of the allegation (in its answer) and admit the rest?

Answer 19

Yes.

Question 20

What is the list of affirmative defenses for a defendant?

Answer 20

accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.
- A denial is not an affirmative defense

Question 21

What are the seven types of pleadings?

How long does a D have to respond to a complaint versus an amended complaint?

Answer 21

1. A complaint
2. An answer
3. An answer to a cross-claim
4. An answer to a counterclaim
5. A third-party complaint
6. An answer to a third-party complaint
7. A reply to an answer (only if the court order one)

21 days and 14 days.

Question 22

What are the four things a lawyer promises when presenting a pleading to the court and what is the header sentence?

Answer 22

• That to the best of their ability formed after an inquiry reasonable under the circumstances:
  (1) the pleading “is not being presented for any improper purpose” (e.g., to harass);
  (2) legal contentions are “warranted by existing law or by a non-frivolous argument for changing existing law”;
  (3) facts have evidentiary support or will have evidentiary support after a further investigation or after discovery
  (4) denials are “warranted on the evidence” or “reasonably based on belief or a lack of information.”

Question 23

What is the court’s main purpose in issuing a sanction and what are the types of sanctions?

Answer 23

• To deter repetition of conduct
• Non-monetary sanctions (censure, education)
• Order to pay a penalty to the court
• Order to pay a penalty to opposing counsel (part of all of other side’s attorney’s fees for expenses directly resulting from the violation)

Question 24

What is the process for a party filing a Motion for sanctions under Rule 11?

Answer 24

1. Describe the specific conduct and do it in a separate motion
2. Serve it on them and give them 21 days to repair
3. If no repair file it with Court
   Note: A court may also file a Rule 11 sanction but first must detail the alleged violation

Question 25

Do Rule 11 sanctions apply to discovery?

Answer 25

No

Question 26

Would an attorney ever have to pay out of pocket for his poor behavior?

Answer 26

Yes. Any attorney. . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Question 27

When can a party amend his pleading as a matter of course? and how often?

Answer 27

A party may amend its pleading one time as a matter of course and it must do so within 21 days after serving an answer or
if the pleading is a complaint, cross/counter claim or a third party claim, 21 days days after service of the answer or Rule 12 motion, whichever is earlier.

In other words,
(1) If the pleading is a complaint, plaintiff has a right to amend the complaint once, no later than 21 days after the defendant serves the answer (or files a motion under Rule 12(b), 12(e), or 12(f)); if the pleading is an answer, defendant has a right to amend the answer once within 21 days of serving it;

(2) Whenever the opposing party consents to the amendment;

Question 28

What is the standard for granting an amendment under Rule 15 when the request falls outside of the 21 day window?

Answer 28

Must have opposing party’s written consent OR the court’s leave. the court should freely give permission as justice requires.

Question 29

What is a supplemental pleading?

Answer 29

On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented

Question 30

How much time does a party have to respond to a pleading?

Answer 30

• Within time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

Question 31

What are the two instances in which there are amendments to conform to the evidence presented at trial?

Answer 31

(1) when evidence is introduced for first time at trial but other side cannot show why it would be prejudicial to allow it in, then court may admit it in so long as it will help decide on the merits
(2) when an issue not in the pleadings is admitted by express or implied consent at trial, then the court must admit it and this can happen even after judgment so that the pleadings and evidence align

Question 32

When does a new claim or defense relate back?

Answer 32

When the amendment asserts a claim or defense that arose out of the same T/O

Question 33

When can a pleading be amended to add a new party?

Answer 33

(1)An amendment to a pleading relates back to the date of the original pleading when: . . .
(C) the amendment changes the party . . . against whom a claim is asserted, if [the claim arises from same conduct, transaction, or occurrence as original pleading] AND [w/in 90 days of filing the complaint], the party to be brought in by amendment:
(i) received such notice [to avoid prejudice]; AND
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Question 34

When can you amend the pleading to replace the original D with the new D?

Answer 34

1) Has the SOL on the claim against the new defendant expired? If not, P can probably amend the complaint to add the new defendant. (relation back not required)
2) If SOL expired after original complaint was filed but before P asks to add new D to the complaint, apply 15(c)(3) to determine whether the amendment will relate back (and P can sue new D).
(1) Do the claim(s) against the new D arise from the same transaction/occurrence as the original claim(s) in the complaint?
(2) Did P make a “mistake” in suing the wrong D?
(3) When did P file the original complaint? Add 90 days (3 months) to that date. On or before the relevant date (filing date + 90 days), did the new D receive notice of the suit and know that P’s failure to sue it (instead of the original D) was a mistake?
If the answer to 1, 2, and 3 is yes, P can amend the complaint to add the new D. If the answer to any question is no, P’s amendment will not “relate back” and P cannot sue the new D, as the claim will be time barred.

Question 35

I loaned D $200,000 and he failed to repay me. D also deliberately tripped me in a parking lot and broke my arm, causing me to incur $80,000 in medical bills. I am a CA resident; D resides in Arizona. These transactions have nothing whatsoever in common.
Can I file a single federal lawsuit, “Rierson v. D,” in which I assert both claims?

Answer 35

Yes, a party asserting a claim, counterclaim, crossclaim, or third-party claim, may join, as independent or alternative claims, as many claims as it has against an opposing party.

Question 36

What is the rule on separate trials?

Answer 36

To support efficiency, a court may order a separate trial of one or more separate issues, claims, etc.
As well, if the multiple claims involve the same T/O, the court may order consolidation and put them in same trial even.

Question 37

What is the two part rule on compulsory counterclaims?

Answer 37

1. A party must file a counterclaim in same case if it arises out of same T/O (“logical relationship” test); AND
2. It would not require adding another party over whom the court does not have jurisdiction.

Question 38

What is a permissive counterclaim?

Answer 38

A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

Question 39

What is the rule for cross-claims against a third party?

Answer 39

• OK so long as same T/O or same property

Question 40

What is the two-part rule for permissive joinder of plaintiffs or defendants (same rule)?

Answer 40

May happen if

1. Same T/O; and
2. Common question of law and fact

Question 41

What is the rule on a D bringing in a 3rd party and what is it called?

Answer 41

• Impleader
• The third party must owe derivative liability to the defendant for all or part of the claim
• Note the D becomes a 3rd party plaintiff
• Note if D files for this more than 14 days after serving its answer, it needs the court’s permission

Question 42

What is the rule on supplemental Jx and how does it relate to diversity jurisdiction?

Answer 42

The general rule is that except in diversity cases, if it is same T/O, then court can hear it.
HOWEVER, in diversity cases, the court WILL NOT hear it under Rule 14, 19, 20, or 24 when it destroys jurisdiction.

Question 43

When must a party be joined? When is there compulsory joinder?

Answer 43

1) Joining party will not destroy subject matter Jx
2) Without the party, the court cannot give complete relief;
3) Going ahead without them would hurt their ability to protect their interests or leave an existing party subject to the risk of incurring inconsistent judgments

Question 44

If a required party cannot be joined (because it would destroy subject matter jurisdiction) what should the court do?

Answer 44

Decide if the action should be dismissed OR proceed without the party.

Question 45

What factors should the court consider in deciding whether to proceed without a required party or in dismissing the case?

Answer 45

(1) extent to which judgment might prejudice the missing person;
(2) extent to which any prejudice could be lessened or avoided by protective provisions in the judgment; shaping the relief or other measures;
(3) whether a judgment rendered in the person’s absence would be adequate; and
(4) whether the P would have an adequate remedy if the action were dismissed for nonjoinder.

Question 46

When does a party have a right/required to intervene?

Answer 46

When:

(1) They file a timely application
(2) They have a legal interest in the action
(3) Resolving the action without them would impair their ability to protect their legal interest
(4) Their interest is not already adequately represented by the existing parties.

Note: If a statute gives them a right then they are allowed a right to intervene.

Question 47

When might a party be permitted to intervene?

Answer 47

When:

(1) They file a timely application
(2) Their issue shares a common question of law or fact
(3) They would not delay or prejudice the adjudication of the original party’s rights

Question 48

What do we learn from Hansberry v. Lee on racially restrictive covenants?

Answer 48

• 14th Amendment gives everyone right to due process

- One is not bound by litigation where the person is not a designated party

Question 49

What is the pneumonic for the six class action requirements before the categorical requirement?

Answer 49

SCNCTA

She Can’t Never Come To Argue

Question 50

What are those requirements?

Answer 50

• Sufficiently definable class (need to know who is in and out)
• Class representative must be a member of the class
• Numerosity (where regular joinder is inapplicable which means MORE than 100 plaintiffs)
• Commonality (class members must share a common question of fact or law)
• Typicality (claim of class member must be typical of the class)
• Adequacy of representation (where class member must have no conflict of interest and counsel have adequate experience and sufficient resources)

Question 51

What are the three categories of class actions?

Answer 51

1. “Prejudice” class actions
2. Injunctions or Declaratory Relief class actions
3. “Damages” class actions

Question 52

When are “Prejudice” class actions used?

Answer 52

When prosecuting separate actions by or against individual class members would create a risk of

(1) inconsistent or varying adjudications that would establish incompatible standards of conduct for the defendant; and
(2) adjudications of individual class members would be dispositive of the interests of other members or would substantially impair or impede their ability to protect their interests

Question 53

When are Injunctions or Declaratory Relief class actions used?

Answer 53

The defendant has acted or refused to act on grounds applicable to the class, so that final injunctive relief or declaratory relief is appropriate respecting the class as a whole

Question 54

When are “Damages” class actions used?

Answer 54

When the court finds that:

(1) the questions of fact or law common to class members predominate over questions affecting individual class members; and
(2) a class action is superior to other means for fairly and efficiently adjudicating the controversy
- Factors to assess superiority include the class members’ interests in individually controlling the matter;
- Extent to which litigation has already begun;
- Desirability of being in a particular forum;
- Likely difficulties in managing a class action

Question 55

What is the level of notice required for any class certified as a “Prejudice” class action versus an Injunctions or Declaratory Relief class action versus a Damages class actions?

Answer 55

• In “Prejudice” and Injunctions or Declaratory Relief class actions, the court may direct notice
• For any class certified under Damages class action, the court must direct notice to class members the best notice that is practicable under the circumstances
  (individual notice using reasonable notice such as email, mail, etc.)
  NOTE that in B3 you need opp to opt out

Question 56

For class actions certified under “damages” what should the notice include:

Answer 56

It must state in clear, plain language:

(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claim, issues, or defenses;
(iv) that a class member [can be represented by an attny if s/he chooses to do so];
(v) that the court will exclude from the class any member who requests exclusion;
(vi) [how to request exclusion or “opt out”]; and
(vii) [if a class member doesn’t opt out, s/he will be bound].

Question 57

How long does a party have to appeal an order granting or denying class certification?

Answer 57

• 14 days from the time of entry

- Note: the appeal will not stop the class action from proceeding unless the district or appeals court says so

Question 58

How does a class action get dismissed or settled and what procedures apply?

Answer 58

• Only with the court’s approval
• The court must direct notice to all class members bound by the proposal
• The court may approve it only after a hearing to ensure it is fair
• The court may refuse a settlement unless it gives class members a new opportunity to opt our

Question 59

What is the requirement for subject matter jurisdiction in diversity cases under the Class Action Fairness Act (CAFA)?
What is the Exxon Rule for establishing SMJ through diversity jurisdiction?

Answer 59

(1) More than $5 million in controversy; and
(2) At least 100 plaintiffs; and
(3) Minimal diversity (one P and one D from different states); BUT
- If 2/3+ members of P class and primary D(s) reside in the state where the action is filed, district court must decline Jx.
- If more than 1/3 but less than 2/3 members of P class and the primary D reside in the state where the action is filed, district court may decline Jx

Question 60

What are the three elements for the tort of spoliation of evidence?

Answer 60

1) The party had a duty to preserve it;
2) Records destroyed with “culpable state of mind”;
3) Evidence was relevant

Question 61

In a Rule 26(f) conference, what four things must a party initially disclose?

Answer 61

1. Contact info of who has information unless it would be used for impeachment
2. Copy of all documents unless it would be used for impeachment
3. Computation of damages
4. Any insurance agreements

NOTE: Documents can be obtained from a 3rd party via a subpoena.
NOTE: If request for documents or RFAs not responded to within 30 days, objections waived.

Question 62

What else happens during the Rule 26(f) conference?

Answer 62

• Discuss whether possible to promptly settle

- Develop a discovery plan

Question 63

What does the 26f conference open the gate to?

Answer 63

Production of documents
Note: An “early” request for production of documents may be delivered on the plaintiff or “any other party that has been served,” “[m]ore than 21 days after [service of] the summons and complaint.” However, a response to the document request is not due UNTIL 30 days after the “first Rule 26(f) conference.”

Question 64

When is the judge’s scheduling order due?

Answer 64

Unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared

Question 65

Can a party or a court limit discovery due to undue burden or cost?

Answer 65

Yes if:

• The discovery request is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; … [or]
• The burden or expense of the proposed discovery outweighs its benefit, considering the needs of the case, the AIC, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues

Question 66

How many interrogatories may a party ask the other for?

Answer 66

• 25 per party
• If a party wants more, the court can grant them permission
• NOTE: Party has 30 days to respond or else objections waived

Question 67

What is the relevant timing on a Request for Admission?

Answer 67

A matter is admitted unless the party responds to the request for admission within 30 days of being served the request
Note: You don’t have to concede you can just object to the request and sign it as the attorney

Question 68

What are the two requirements to submit a plaintiff for a mental or physical exam?

Answer 68

• Good cause

- Must specify time, location, manner and scope of exam including who will perform it

Question 69

What is connection between admissible evidence for a trial and discovery?

Answer 69

Information does not need to be admissible at trial in order for it to be discoverable.

Question 70

What are the three possible sanctions for a failure to disclose information (e.g., evidence, witness, etc.)?

Answer 70

(A) payment of reasonable expenses, including attorney’s fees;
(B) may inform jury of party’s failure; AND
(C) may impose other appropriate sanctions. . . .

Question 71

What are the options available to the court when a party fails to comply with a discovery order?

Answer 71

(1) The issue is taken as established;
(2) Opposing party is no longer able to defend issue;
(3) Pleadings are stricken;
(4) Proceedings stayed;
(5) Action dismissed in whole or in part
(6) Default judgment rendered against disobedient party

Question 72

What kind of information is always privileged?

Answer 72

Attorney Client information

Question 73

There are two kinds of Attorney Work Product - one may be discoverable and one is not. What is the detail on this?

Answer 73

• If the information relates to an attorney’s legal theories, impressions, opinions and beliefs (like comments during a witness interview) it is NOT discoverable
• If the information satisfies three requirements it MAY be discoverable if the court orders it so:
  (1) material developed in anticipation of litigation;
  (2) inability for other party to obtain it without undue hardship; AND
  (3) substantial need (aka relevance has to be there) from the other side.

Question 74

The general rule is that parties don’t need a court’s permission to depose people. What are the exceptions to this general rule?

Answer 74

• The parties exceed the max number of 10 depositions
• The deponent has already been deposed;
• The party seeks to depose the person before the date in the scheduling plan; OR
• The person is in prison

Question 75

Under what five situations can a deposition video/transcript be used in a trial?

Answer 75

(A) witness dead;
(B) witness more than 100 miles from court unless witness being paid off to leave;
(C) sick, imprisoned or too old
(D) court couldn't subpoena them to come
(E) [exceptional circumstances].

Question 76

What are the three types of expert witnesses?

Answer 76

• Trial experts
• Consulting experts
• Percipient expert

Question 77

What are the main differences between types of expert witnesses?

Answer 77

• A trial expert testifies at trial. All of his information is discoverable. He must produce a report. He can only be deposed after the report is produced.
• A consulting evidence never testifies just advises. Their information is never discoverable.
• A percipient expert testifies (e.g., treating physician) at court because they are a fact witness

Question 78

When do disclosures of expert testimony have to be made?

Answer 78

• At least 90 days before trial

- Or if the report information is just rebuttal to another report then 30 days after that report is received

Question 79

Who pays for expert witnesses?

Answer 79

The party seeking discovery.

Question 80

What are the two types of voluntary dismissals and the rules for each?

Answer 80

1) A voluntary dismissal where you dismiss your own case either before the defendant answers or before summary judgment. This is done without prejudice so you can refile it elsewhere. You can only do this one time.
2) A voluntary dismissal with prejudice where you settle the case. It is considered a judgment on the merits.

Question 81

What are the timing considerations on post-discovery motions not including a motion for a new trial?

Answer 81

• Motion for summary judgment (SMJ): Must be filed within 30 days after the close of discovery. Court usually sets date in scheduling order.
• Motion for JMOL: Must be made during trial and before case is handed to a jury. Can be made after P rests its case or after both sides present to jury.
• Renewed Motion for Judgment as a Matter of Law: No later than 28 days after the entry of final judgment on the case

Question 82

What is the standard for granting a Motion for Summary Judgment?
What types of evidence does the judge rely on?

Answer 82

• The motion should be granted when there is “no genuine issue of material fact,” such that no reasonable jury could find in favor of the non-moving party (the party opposing the motion).
• The facts must be taken in the light most favorable to the non-moving party
• The moving party can meet its burden by either by disproving a key element of the non-moving party’s claim or defense or by demonstrating a lack of evidence re that element.
• Types of Evidence Judge Relies On: Affidavits, Depositions, Interrogatories, RFA’s, authenticated documents

Question 83

What is the standard for granting a Motion for Judgment and RJMOL as a Matter of Law? What types of evidence does the judge rely on?

Answer 83

• The motion should be granted when a reasonable jury would not have a “legally sufficient evidentiary basis” to find in favor of the non-moving party
• All facts must be taken in the light most favorable to the non-moving party
• Moving party can meet its burden either by disproving a key element of the non-moving party’s claim or defense or by demonstrating a lack of evident re that element. The standard is substantively identical to the standard for granting an MSJ under Rule 56.
  Types of Evidence the Judge Relies On:
• Testimony and evidence introduced at trial only
• May include discovery responses
• Affidavits are not permitted
• Deposition testimony not permitted unless witness is “unavailable” for the reasons listed in Rule 32.

Question 84

What is the prerequisite to filing a RJMOL?

Answer 84

Filing a Judgment as a Matter of Law

NOTE: In the RJMOL, you also include in the motion a request for a new trial

Question 85

What three things do you need for a new trial?

Answer 85

1. An error was made
2. The error was material - the error deprived the affected party of substantial justice
3. The lawyer preserved the right by objecting at trial

Question 86

What are the three reasons for a new trial?

Answer 86

1. Jury Verdict Rendered is Against the Weight of the Evidence
2. Process Errors (e.g., Juror Misconduct, Inconsistent or Incoherent Jury Verdict, Evidentiary Rulings)
3. Newly discovered evidence, fraud)

Question 87

If filing a motion for a new trial due to a process error, what 5 types of errors are there?

Answer 87

(1) Jury renders a quotient verdict or otherwise uses a random or arbitrary means to determine liability/damages (although difficult to determine)
(2) Juror(s) lie on voir dire (must show that a material representation was made and, if honest response had been given, lawyer would be able to challenge juror for cause)
(3) Unauthorized contact between juror(s) and court personnel, lawyers, or parties
(4) Exposure to evidence that was not admitted at trial, outside presence of judge and attorneys (e.g., juror(s) visit the scene of the accident)
(5) Miscellaneous reasons why jury did not render substantial justice
NOTE: Juror testimony may not be admitted for the purpose of challenging a jury verdict

Question 88

In considering whether to grant a new trial, what is the issue of Remittitur?

Answer 88

New trial granted unless P agrees to accept reduced award.

Question 89

In considering whether to grant a new trial, what is the issue of Additur?

Answer 89

New trial granted unless D agrees to accept increased award for P.

Question 90

If you are seeking legal damages plus equitable damages, which issues get tried first?`

Answer 90

The legal issues will be tried first (through a jury). Then the judge will decide on the equitable relief based on the findings of fact by the jury.

Question 91

If you’re demanding a jury trial when do you request this?

Answer 91

Either a) in your complaint or b) within 14 days from when you received defendant’s answer

Question 92

What is a for cause versus preemptory challenge and how many preemptory challenges does each side receive?

Answer 92

For cause challenges (where juror could be biased) are unlimited in the number allowed. 
Preemptory challenges (where juror dismissed for any reason other than a discriminatory reason) are limited to 3 per party.

Question 93

When do parties review jury instructions and exhibits? What is the jury size?

Answer 93

• Final pretrial conference

- No less than six and no more than 12

Question 94

What is the harmless error rule?

Answer 94

Rule 61
Unless justice requires otherwise, no error in admitting or excluding evidence–or any other error by the court or a party–is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.
A court may consider a plain error in the instructions that has not been preserved… if the error affects substantial rights.

Question 95

What are the judge’s four options when a jury’s verdict does not make sense?

Answer 95

1. Send the jury back to redeliberate (assuming they have not been discharged)
2. Enter the general verdict if you can harmonize it with any provided answers (determining that it is not really inconsistent)
3. Enter the special verdict and ignore the general verdict (possible if the special verdict answers are all consistent with each other)
4. Throw out the verdict and grant a new trial

NOTE: When the general verdict and the answers are consistent, the court must approve the verdict and enter the judgment.
NOTE: There are general verdicts (which give more deference to jury) and special verdicts (where jury has to justify its reasoning by answering specific questions) thus part of the jury’s power is transferred to the judge)

Question 96

What is the general rule on appeals? And how much time does a losing party have to file an appeal?

Answer 96

A losing party can appeal a judgment only if one type of relief they requested has not been granted. This means that if the party put forth two different legal theories and the jury found the other party was only liable for one theory (not the other) but the jury did award the desired forms of relief, the party is not considered a losing party and thus cannot appeal.
For example: If you asked for compensatory and attorney fees and only got the former then you can still appeal because you didn’t get all the forms of relief
On Timing: Losing party has 30 days from the judge’s entry of final judgment to file an appeal or 30 days from the judge’s entry of a during/post-trial motion such as a JMOL, RJMOL or new trial motion decision.

Question 97

What is the buzz term/word on whether an appeal should be granted based on the court’s error?

Answer 97

Harmless errors will not impact the judgment. The court “must disregard all errors and defects that do not affect a party’s substantial rights”. Buzz term is “substantial justice”

Question 98

What are the two standards of review for an appeal court and the definitions of each?

Answer 98

1. De novo / Questions of Law: Questions of law in which no deference is paid to trial court
2. Question of Fact: Deference is paid to trial court and lower court’s decision only reversed if it was “clearly erroneous.” This is not super common because the appeals court never heard anyone testify. They didn’t listen to the testimony of witnesses at trial. That’s why it has to be clearly erroneous. Reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.

Question 99

What are the 6 exceptions to the general rule that there cannot be an appeal until final judgment is entered?

Answer 99

Exceptions to Final Judgment Rule (you don’t need to wait for court’s final judgment to file an appeal):

(1) Injunctions (permanent or prelim; no TRO) (not discretionary so file straight to Appeals and they have to review);
(2) Class action certification (discretionary, must get permission from appeals court to review certification; does not make sense to proceed with class action if the cert is going to potentially be reversed) (do this within 14 days of cert decision being entered by lower court)
(3) Multiple claims or parties (multiple claims or Ds, court only ruled on half for example in summary judgment; district court has to give you permission, once you have it you go ahead and file appeal, no appeals permission necessary); easier path than seeking permission for an appeal due to a disputed issue of law. Example: One breach of contract claim and one negligence claim; court only decided one cause of action then you can ask the district court for permission to appeal the order on the one claim

(4) Disputed issue of law: The District Court AND the Court of Appeal have to be convinced to issue an order finding that there is a controlling question of law; thus, there are dual gatekeepers rendering more difficult the potential for such an appeal to be made.
To reach Appeals Court (who may accept the request), the District Court must find three elements:
- A controlling question of law as to which there is
- A substantial ground for difference of opinion; and
- An immediate appeal reviewing the district court’s decision on that issue “may materially advance the ultimate termination of the litigation,” i.e., would be efficient.

(5) Collateral Orders: For an issue to be reviewable under the Collateral Order Doctrine, four requirements must be met:
- 1) Separability: Order must resolve an important issue completely separate from the merits of the action
- 2) Finality: Order must be a “complete resolution of the disputed issue”
- 3) Urgency: Order must be effectively unreviewable on appeal from a final judgment;
- (4) Importance: Must involve “important and unsettled question of controlling law” (rare)
Example: Any rule that involves an immunity from suit – like sovereign immunity, qualified immunity. Choice of venue.

(6) Writs of Mandamus
Two elements
- Writ of mandamus is only adequate means to seek relief (risk of irreparable harm); AND
- Moving party must show that right to relief is “clear and undisputable” (district court did something clearly wrong)
Note: Here, you are asking for permission to sue district judge. For example, judge says he doesn’t to hear your case for a bad reason like he doesn’t feel like it (even though he has SMJ on the matter)

Question 100

What does claim preclusion translate to?

Answer 100

Res Judicata - “a matter decided” in Latin

Question 101

What are the three required elements to claim preclusion?

Answer 101

1. First judgment is valid, final, and on the merits (e.g., SMJ, JMOL, jury trial, dismissal for failure to prosecute)
2. Parties identical in first and second suit.
3. Claim in second suit must involve matters arising from same transaction or occurrence as in first suit.

NOTE: Thus, such claims are barred.
NOTE: Does not matter if the two suits involve different legal theories. What matters is that it arises out of the same transaction or occurrence.

Question 102

What are the two exceptions to claim preclusion?

Answer 102

1. Claim preclusion does not apply when the court that issued the first judgment would not have had SMJ over the claims asserted in the second action.
2. Claim preclusion does not apply when the first judgment is procured by fraud.

NOTE: If first judgment party lied about how many people signed racially restrictive covenant), then CP does not apply.

NOTE: If you filed for copyright infringement in state court in first suit, CP does not apply because state court never had jurisdiction on that.

NOTE: A change in the law after the final judgment has not been rendered does not matter at all. Claim will still be barred.

Question 103

What is a key difference between claim and issue preclusion?

Answer 103

Claim preclusion – same parties in both suits is required.

Issue preclusion – the second D does not have to be the same as first D.

Question 104

What is the general definition of issue preclusion and the 5 required elements?

Answer 104

A party may not relitigate an issue that has previously been litigated and lost.

(1) Issue in lawsuit #1 and #2 must be identical;
(2) Issue must have been actually litigated in lawsuit #1;
(3) Issue must have been finally decided in lawsuit #1;
(4) Determination of issue in lawsuit #1 must have been essential to the final judgment in lawsuit #1; AND
(5) Parties in lawsuits #1 and 2 must be the same or in privity with each other, but modern rule is generally that only the party to be bound must have been a party in both lawsuits, particularly when IP is being used defensively.

NOTE: Here, we can have different legal claims that have a common element.
NOTE: D can raise IP even though D was not a party in first lawsuit. This also applies to plaintiffs not having to be the same in both suits.

Question 105

What are the two exceptions to issue preclusion?

Answer 105

• No issue preclusion if D did not have full opportunity to litigate in lawsuit #1
• No issue preclusion if it would result in prejudice to the public interest or to others not a party to lawsuit #1.

Question 106

When will a trial court allow a P to use issue preclusion offensively against a D?

Answer 106

Decision rests in discretion of the trial court:
If P could have easily joined in the earlier action and didn’t, offensive I.P. should not be allowed.
If application of I.P. would be unfair to D, offensive I.P. should not be allowed.
Did D have an incentive to litigate the relevant issues in the first lawsuit?
Is the judgment relied on as a basis for I.P. inconsistent with other judgments in favor of D?
Are there procedural differences in the second action that may cause a different result (e.g., D forced to litigate in inconvenient forum in first action)?