Civil Procedure - General

Question 1

Personal Jurisdiction Essay Question

Answer 1

1) Personal Jurisdiction is about the court’s power over the parties.
2) The question is, can π sue ∆ in this state?
3) To have PJ, both a state statute and the Constitution must be satisfied.
4) Often, state statutes will simply require that PJ comply with constitutional due process.
5) Constitutional analysis: Does ∆ have such “minimum contacts with the forum such that jurisdiction does not offend traditional notions of fair play and substantial justice?
6) PJ clearly constitutional when: ∆ is domiciled in forum, ∆ consents, or ∆ is voluntarily present in forum when served w/ process.
7) Factors for analyzing constitutionality: contact, relatedness, and fairness (for specific PJ only)
8) Contact: purposeful availment & foreseeability
9) Relatedness: Does π’s claim “arise from” ∆’s contact with the forum?
10) If yes, there is specific PJ. If no, does court have general PJ over ∆?
11) Court has General PJ if ∆ is “at home” in forum.
12) Human is “at home” in state of domicile. Corporation is “at home” 1) where it is incorporated, and 2) where its PPB is located.
13) Fairness: If specific PJ situation, fairness balances burden on ∆ & witnesses (“severe disadvantage in litigation” test), state’s interests, π’s interests.

Question 2

Subject Matter Jurisdiction Essay Outline

Answer 2

1) Subject matter jurisdiction is the court’s power to hear this case.
2) Federal Courts are courts of limited jurisdiction, meaning they can only hear certain cases.
3) Three ways to have SMJ over claim: diversity & federal question, then supplemental (possible only if one of the other methods is fulfilled)

Question 3

Diversity Jurisdiction Outline

Answer 3

1) Diversity = citizens of diff states, or citizen vs. alien & over $75,000 (cannot be green card alien domiciled in same state)
2) “citizen” = state of domicile; Corporations are citizens of both incorporation state & PPB (PPB = nerve center); for partnership, citizenship of ALL members
3) “Domicile” = physical presence + intent to make permanent home
4) Test for diversity @ time of filing
5) $75,000 threshold: includes damages, but not costs & interest; cannot aggregate claims of multiple πs to reach $75k; Equitable relief, look decrease in value for π or cost of compliance for ∆
6: Exclusions: divorce, alimony, child custody, probate & estate

Question 4

Federal Question Jurisdiction Outline

Answer 4

1) Federal courts have jurisdiction over claims that arise under federal law.
2) “Arise under” = π is enforcing a federal right; π’s claim itself comes from federal law.

Question 5

Supplemental Jurisdiction Outline

Answer 5

1) Supplemental jurisdiction gets non-federal, non-diversity claims into federal court.
2) To invoke supplemental jurisdiction, the case itself must already be properly in federal court via FQ or Diversity.
3) Test: claim comes from same “transaction or occurrence as underlying claim”
4) Court still has discretion to decline jurisdiction if: state law claim is complex, state law claims predominate the case, or if the underlying claim is dismissed early

Question 6

Removal Outline

Answer 6

1) ∆ has right to remove to Federal Court within 30 days w/in service of the paper that shows the case is removable (30 days starts anew w/ each ∆ that is served)
2) ALL ∆s must unanimously agree to remove.
3) Removal is proper if the case could have originally been filed in Federal Court EXCEPT: no removal if any ∆ is a citizen of forum AND no removal more than 1 year after case filed
4) ∆ removes to the federal district “embracing” the state court where case was filed
5) ∆ must file “notice of removal” w/ federal court, stating grounds for removal
6) If π thinks removal was improper, can move to remand to state court w/in 30 days of notice of removal

Question 7

Erie Doctrine Outline (Three Steps)

Answer 7

Step 1) Is there a federal law on point that directly conflicts w/ state law? (Supremacy Clause)
Step 2) If no, judge must apply state law if issue is “substantive”: a) elements of claim/defense b) SOL c) rules for tolling SOL d) conflict/choice of law rules
Step 3) If not on list above, court must determine whether issue is “substantive” by weighing: a) outcome determinative b) balance of interest between state/federal c) avoid forum shopping

Question 8

Venue Outline

Answer 8

1) Venue rules determine in which federal district a claim may be brought.
2) π may lay venue in any district where a) all ∆s reside, or b) a substantial part of the claim arose
3) Special Rule: if all ∆’s reside in same state, venue proper in any district where any ∆ resides
4) Venue proper for a Business ∆ in any place w/ PJ over ∆
5) Transfer: If original district was proper, court has discretion to transfer for convenience of parties & witnesses; if original district was improper, Court may transfer or dismiss
6) In deciding whether to transfer, court will weigh public (applicable law, desire to keep local) and private (access to evidence, convenience) factors showing that transferee is the “center of gravity”
7) Forum non conveniens - another available and “adequate” forum is way better; “adequate” = π gets day in court, even if remedies are different

Question 9

Who can serve process?

Answer 9

Any nonparty who is at least 18 years old.

Question 10

How is Process Served?

Answer 10

There are FIVE methods: (120 days from filing complaint to serve ∆)

1) Personal service, anywhere
2) Home service: serve someone of suitable & and discretion who lives at ∆’s usual abode
3) Serve ∆’s agent
4) Follow service laws of State
5) Waiver by mail: Mail copy of complain + 1 copies of waiver, w/ prepaid means of returning form
* If ∆ fails to return waiver w/o good cause, ∆ must pay costs of service.

Question 11

What is “Process”?

Answer 11

Process consists of two documents: summons (formal court notice of suit & time for response) AND the complain

Question 12

How long to respond to interrogatories?

Answer 12

30 days, or 33 if interrogatories were mailed to you.

Question 13

What are the requirements for a Complaint?

Answer 13

1) Statement of grounds for SMJ
2) Short & plain statement of the claim, showing entitled to relief
3) Demand for relief sought (e.g. damages, injunction, declaratory judgment)

Question 14

What three matters must be pleaded w/ a heightened level of detail?

Answer 14

With particularity and specificity:

1) fraud
2) mistake
3) special damages

Question 15

How long does ∆ have to respond to Complaint?

Answer 15

60 days if ∆ waived service.

21 days if ∆ did not waive service.

Question 16

How can a ∆ respond to the Complaint?

Answer 16

1) Motions (Rule 12)

2) Answer

Question 17

What are the 12(b) defenses?

Answer 17

(1) lack of SMJ
(2) lack of PJ
(3) Improper venue
(4) improper process (papers)
(5) improper service of process
(6) failure to state a claim
(7) failure to join an indispensable party

Question 18

Which 12(b) defenses can be waived, and how?

Answer 18

Lack of PJ, improper venue, improper process, improper service of process;
Waived if not asserted in first response to Complaint.

Question 19

What does a ∆’s answer do?

Answer 19

Two Things:

1) Respond to allegations in complaint (admit, EXPLICITLY deny, or lack sufficient information)
2) Raise affirmative defenses (SOL, res judicata, etc.)
* Duty to investigate things in your control*

Question 20

Counterclaims

Answer 20

Counterclaim = against opposing party

TWO KINDS: Compulsory & Permissive
Compulsory = arises from same T/O as π’s claim
Permissive = does not arise from same T/O as π’s claim

Also, counterclaims must have SMJ

Question 21

Crossclaims

Answer 21

Crossclaim = claim against co-party.
Crossclaim MUST arise from same T/O as underlying action.
Never compulsory; must have SMJ, of course.

Question 22

Amending Pleadings

Answer 22

Four Fact Patterns:

1) RIGHT to Amend: π has right to amend ONCE, w/in 21 days after ∆ files first Rule 12 motion; ∆ has right to amend w/in 21 days of serving answer
2) Leave of Court: court may give leave to amend if “justice so requires” (weigh delay, prejudice, futility)
3) Variance: evidence at trial not matching pleadings? Amend.
4) Amendment after SOL: Amended pleadings “relate back” if they concern same conduct, transaction, or occurrence as the original pleading

Question 23

When is π allowed to change the ∆ in Complaint after the SOL has run?

Answer 23

Complaint “relates back” when:

(1) Concerns same conduct, transaction, or occurrence as original complaint,
(2) The new ∆ knew of this case w/in 120 days of its filing, and
(3) New ∆ also knew that, but for mistake, she would have been named originally.

Question 24

Supplemental pleadings: what are they are when are they allowed?

Answer 24

Lay forth occurrences that happened after original pleading was filed.

Allowing supplemental pleadings is always at the Court’s discretion - but will often allow unless would cause delay/prejudice.

Question 25

Which documents does Rule 11 apply to?

Answer 25

All documents except discovery

Question 26

What is Rule 11 certification?

Answer 26

When lawyer/pro se party signs documents, she certifies that to the best of her knowledge after reasonable inquiry:

(1) the paper is not for an improper purpose, and
(2) the legal contentions are warranted by law, and
(3) the factual contentions and denials of factual contentions have evidentiary support (or likely will after further investigation.

Question 27

What is a continuing (Rule 11) certification?

Answer 27

Each time the attorney/pro se presents a position to the court (in further documents or trial presentations) this is a continuing Rule 11 certification.

Question 28

Who may receive Rule 11 sanctions?

Answer 28

If there is a Rule 11 violation, the Court may sanction the party, the attorney, or the law firm.

Question 29

What is the process of Rule 11 Sanctions?

Answer 29

If party violates Rule 11, other party must serve a motion for sanctions on the parties, but cannot file it. The violating party has 21 days to fix the problem and avoid sanctions. If the violating party does not fix the problem, the motion for sanctions may be filed.

The Court may raise Rule 11 problems sua sponte.

Court will usually issue an order to show cause why sanctions should not be imposed.

Question 30

What are the initial disclosures during discovery?

Answer 30

Within 14 days of the Rule 26(f) Discovery Conference, each party must disclose:

(1) identities of persons who have discoverable info that the party may use to SUPPORT its claims or defenses, and
(2) documents and things that part may use to SUPPORT claims or defenses that are in your control
(3) Computation of requested monetary relief
(4) Existence of relevant insurance coverage

Failure to make the proper disclosures means material may not be used in the case.

Question 31

What discovery disclosures are required regarding expert witnesses?

Answer 31

At a time directed by the Court, each party must identify expert witnesses who may be used at trial.

Also, party must submit the expert’s written report that includes:

(1) Opinion EW will express
(2) bases for those opinions
(3) facts used to form opinions
(4) EW’s qualifications, and
(5) how much EW is getting paid

Question 32

Who counts as an “expert witness?”

Answer 32

An EW is someone who, because of special skill or training, may give opinion testimony. The EW is hired specifically to render an opinion in this case.

For example, a doctor who treated an injured patient and is later asked to testify at trial is NOT an EW.

Question 33

Is a deponent required to review all relevant files and notes before being deposed?

Answer 33

No, testimony comes from present recollection.

Question 34

Can party take deposition of a party or nonparty?

Answer 34

Yes to both, but should subpoena the nonparty to compel attendance.

Question 35

What does a subpoena “duces tecum” require a deponent to do?

Answer 35

If a deponent receives a subpoena “duces tecum,” the deponent must bring all requested materials with her.

Question 36

Unless a nonparty agrees, what is the longest distance she can be required to travel for a deposition?

Answer 36

100 miles from where she resides or is employed.

Question 37

What are the limits on the use of depositions?

Answer 37

(1) Party cannot take more than 10 depositions without court approval or stipulation.
(2) Party cannot depose same person twice w/o court approval or stipulation.
(3) Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Question 38

To whom can you sent interrogatories?

Answer 38

Interrogatories can be sent to parties only!

Question 39

How long does a party have to respond to an interrogatory?

Answer 39

A party must answer or object to an interrogatory within 30 days of service.

Question 40

What investigatory duties are imposed when answering an interrogatory?

Answer 40

In answering an interrogatory, a party must answer from all information reasonably available to him or her.

Question 41

What is the maximum number of interrogatories a party may send?

Answer 41

A party may send the opposing party a total of 25 questions in the interrogatory, including subparts.

Question 42

May a party request nonparties to produce discovery materials?

Answer 42

Yes, but should get a subpoena to compel compliance.

Question 43

What is unique about requesting a medical examination during discovery?

Answer 43

A medical examination (physical or mental) is the only discovery method that requires a court order to request.

To get a court order, requesting party must show that person’s health is in actual controversy and “good cause” exists. (usually means no other way to get information)

Question 44

Who can be ordered to undergo a medical examination for the purpose of discovery?

Answer 44

A party or someone in the party’s custody or legal control.

Question 45

Who chooses the licensed person to perform a medical examination during discovery?

Answer 45

The party seeking the court order chooses the licensed person to perform a medical examination during discovery.

Question 46

Following a properly ordered medical examination during discovery, does the examined party have a right to view the exam report?

Answer 46

Yes, examinee may request the report. However, if the examinee obtains the report, he waives any privilege he might have concerning testimony about all examinations of that particular medical condition. The examinee would then have to produce reports of his own doctors concerning the condition.

Question 47

On whom may a request for admission be served?

Answer 47

A request for admission may be served on parties only.

Question 48

What if a party fails to specifically deny an allegation in response to a request for admission?

Answer 48

If the party fails to specifically deny an allegation, the allegation will be deemed admitted.

Question 49

Can a party respond to a request for admission by stating that he or she does not know the answer?

Answer 49

A party may only respond that they do not know the answer if she states that she made reasonably inquiry and cannot find enough information to admit or deny.

Question 50

Is there a duty to supplement responses to discovery requests?

Answer 50

If a prior response to a discovery request is now incomplete in light of new circumstances, there is a duty to supplement the prior response.

Question 51

What is within the scope of discovery?

Answer 51

Anything relevant to a claim or defense is within the scope of discovery?

Question 52

Must a material be admissible in court to be discoverable?

Answer 52

No, admissibility is not the test for whether something is discoverable.

Question 53

What counts as “relevant” to a claim or defense?

Answer 53

Relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence.”

Question 54

Is a party’s net worth relevant to a claim for compensatory damages?

Answer 54

No, a party’s net worth is not relevant to compensating the π.

Question 55

Is a party’s net worth relevant to a claim for punitive damages?

Answer 55

Yes, because punitive damages are intended to punish ∆, ∆’s net worth may be relevant and thus discoverable.

Question 56

What is the doctrine of “proportionality” when it comes to discovery?

Answer 56

The court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue. This is called “proportionality.”

Question 57

Is privilege a valid objection to discovery requests?

Answer 57

Yes, a party may object to discovery on the basis of evidentiary privilege. (attorney-client, spousal, doctor-patient)

Question 58

What are the steps in analyzing the Work Product Doctrine?

Answer 58

Step 1:
Generally, work product is protected from discovery.
Step 2:
Requesting party may still be able to discover work product if it shows: (a) substantial need (b) material not otherwise available.
Step 3:
Absolute Work Product can never be discovered, and it covers: (a) mental impressions (b) opinions (3) conclusions (4) legal theories

Question 59

What is a Privilege Log?

Answer 59

A privilege log is a log that that lists out any withholdings during discovery due to privilege or work product. The reason for withholding must be expressly claimed. The log must be detailed enough for the judge to determine whether the material is protected.

Question 60

What are discovery motions a party may bring during a discovery dispute?

Answer 60

(1) Protective order - court may limit discovery
(2) Motion to Compel - requesting party asking to compel answers
(3) Motion for sanctions

Question 61

What is the process for moving for sanctions during discovery?

Answer 61

Partial Response Problems:

(1) move for order compelling answer + costs of bringing motion
(2) If party violates order compelling answer, RAMBO sanctions + costs & could be held in contempt

No Response Problem:
(1) RAMBO sanctions + Costs

Question 62

What are the Judge’s options with RAMBO Sanctions?

Answer 62

(1) establishment order, establishing facts as true
(2) strike pleadings of the disobedient party
(3) disallow evidence from the disobedient party
(4) dismiss π’s case (if bad faith shown)
(5) enter default judgment against ∆ (if bad faith)

Question 63

What are the requirements for being co-plaintiffs?

Answer 63

(1) Claims arise from same transaction or occurrence, and

(2) Claims raise at least one common question

Question 64

Who is a “necessary” party to litigation?

Answer 64

An absentee (A) who meets any of these tests:

(1) Without A, the court cannot accord complete relief among existing parties (focused on π)
(2) A’s interest may be harmed if he is not joined (focused on A)
(3) A claims in interest that subjects a party (usually ∆) to the risk of multiple obligations (focused on ∆)

Question 65

Are joint tortfeasors necessary parties to litigation?

Answer 65

No, joint tortfeasors are never necessary parties to litigation.

Question 66

What is the next step if there is a necessary absentee party?

Answer 66

See if joinder is “feasible”:
(1) is there PJ over A?
(2) Will joining A mess up Diversity Jurisdiction?
If feasible, Court will order joinder.

Question 67

What if there is a necessary absentee that cannot be feasibly joined to the suit?

Answer 67

If necessary A cannot be joined, court must either proceed or dismiss.
Factors for the decision include:
(1) available alternative forums
(2) actual likelihood of harm to A
(3) Can the court shape relief to avoid harm to A

Question 68

What is an indispensable party?

Answer 68

If the court chooses to dismiss an action for failure to join a necessary party, the absent party is referred to as “indispensable”

Question 69

What is “impleader?”

Answer 69

Impleader is the method of the ∆ adding another party, a third-party ∆.

Impleader is usually for indemnity or contribution, for 3P∆ to pay all or part of ∆’s liability to π.

Question 70

How does a ∆ implead?

Answer 70

∆ has a right to implead w/in 14 days of serving answer.
To implead, ∆:
(1) Files a third-party complaint against 3P∆
(2) Serves process on 3P∆ (Court must have PJ over 3P∆)
Remember, SMJ analysis

Question 71

Can a π file a claim against an impleaded 3P∆?

Answer 71

Yes, a π can file a claim against an impleaded 3P∆ so long as: (1) same T/O, and (2) doesn’t violate Diversity jurisdiction

Question 72

What is intervention?

Answer 72

Intervention is the process of a nonparty entering litigation, either as a π or as a ∆. Application to intervene must be “timely.”

Party has right to intervene under the “Necessary Party” tests.

At court’s discretion, nonparties that are not necessary may intervene if there is at least one common question.

Question 73

What is the process for certifying a Class Action lawsuit? (4 initial, then categorization)

Answer 73

Initial Requirements:

(1) numerosity - too many for practicable joinder
(2) commonality - issue in common to all class members
(3) typicality - representative’s claims are typical of the class
(4) Adequate representation - class rep will fairly & adequately represent class

Categorization: (must fit in 1)
(Type 1) "prejudice" - class treatment necessary to avod harm to class members or to the non-class party
(Type 2) Injunction/Declaratory judgment sought because ∆ treated class alike
(Type 3) "Damages" - common questions predominate over individual questions AND class action is superior method to handle dispute

Question 74

What is included in the Court’s “certification” of a class action?

Answer 74

(1) Definition of class and claims/issues
(2) Appoint class counsel
(3) For Type 3 actions, requirements for notifying class members stating that: (a) can opt out (b) will be bound if they don’t opt out (c) they can enter a separate appearance through counsel

Question 75

Who pays for notice of class members in a Type 3 class action?

Answer 75

The Representative pays for the cost of giving notice to all class members in a Type 3 class action.

Question 76

How is a class action settled?

Answer 76

There must be court approval for settling a class action lawsuit.

Question 77

How is citizenship analyzed for bringing a class action to federal court under Diversity Jurisdiction?

Answer 77

Only the class Representative’s citizenship is used for Diversity analysis.

Question 78

What is effect of the Class Action Fairness Act (CAFA)?

Answer 78

CAFA grants SMJ to federal courts to hear a class action if ANY class member is diverse from ANY ∆ if the aggregate claims of the class exceed $5,000,000.

Question 79

What can a π do to maintain the status quo while waiting for a hearing on a Preliminary Injunction?

Answer 79

Get a Temporary Restraining Order (TRO)

Ex parte TRO is proper only if:

(1) applicant files paper under oath showing that w/o TRO he will “suffer immediate and irreparable harm if he must wait until the other side is heard,” AND
(2) Applicant’s lawyer certifies in writing his efforts to give oral/written notice to ∆ or ∆’s lawyer (or why such notice should not be required under the circumstances.)

Question 80

If a TRO is granted, what must the applicant do for the TRO to be effective?

Answer 80

The applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

The TRO must be served on ∆ as soon as possible.

Question 81

What must be included in the TRO?

Answer 81

The TRO must state its terms in specificity, detailing what ∆ must do/not do, state why it was issued and why the threatened harm to π was irreparable.

Question 82

What can ∆ do in response to TRO?

Answer 82

In response to a TRO, a ∆ may move to dissolve or modify the TRO.

Question 83

How long does a TRO last?

Answer 83

A TRO is effective no more than 14 days (or less if stated by court).

If applicant shows good cause, TRO can be extended for up to another 14 days, but that is it.

Question 84

Can a preliminary injunction be granted ex parte?

Answer 84

No, a preliminary injunction can never be granted ex parte.

Question 85

How is a preliminary injunction imposed?

Answer 85

To get a preliminary injunction, an applicant must show:

(1) likely to suffer irreparable harm if injunction not issued
(2) likely to win on the merits of underlying case
(3) balance of hardship favors him, AND
(4) the injunction is in the public interest

Question 86

Is there ever a right to a preliminary injunction?

Answer 86

No, granting a preliminary injunction is always up to the discretion of the court.

Question 87

If the court grants a preliminary injunction, what must the applicant do?

Answer 87

If a preliminary injunction is granted, the applicant must post a bond to cover costs and damages of the other side in the event that the preliminary injunction ends up being wrongful.

Question 88

In granting or denying a motion for a preliminary injunction, what must the court do?

Answer 88

In granting or denying a motion for a preliminary injunction, the court must make specific findings of fact and separate conclusions of law. If granting, the court must describe in detail what the ∆ must do/not do and state why the order was issued.

Question 89

Can π voluntarily dismiss the case without prejudice?

Answer 89

π may voluntarily dismiss the case ONCE without prejudice if the notice of dismissal is filed before ∆ files an answer or motion for summary judgment.

Question 90

How does the π get a default judgment?

Answer 90

If ∆ does not respond to complaint w/in 21 (or 60 if ∆ mailed waiver), court clerk will note default on docket.

Court clerk can enter default judgment IF:

(1) ∆ made no response at all,
(2) claim itself is for sum certain in money,
(3) claimant gives affidavit of sum owed, AND
(4) ∆ is not minor/incompetent.

If any of above is NOT true, then π applies for default judgment with the Court. The Court will hold a hearing, and ∆ will receive notice if he has appeared in the case.

Question 91

After default judgment has been entered, is there anything ∆ can do?

Answer 91

∆ may file motion to have the court set aside a default judgment by showing good cause AND a viable defense.

Question 92

How does the Court analyze a 12(b)(6) motion to dismiss for failure to state a claim?

Answer 92

Looking only at the face of the complaint, the court asks, “If these facts were true, would π win a judgment?”

Question 93

What must a party moving for Summary Judgment show?

Answer 93

A party moving for Summary Judgment must show:

(1) there is no genuine dispute on a material fact and
(2) she is entitled to judgment as a matter of law

Question 94

If the party moving for Summary Judgement has illustrated the two SJ requirements, must the court enter SJ?

Answer 94

No, a court always has discretion whether to grant a motion for Summary Judgement.

Question 95

Who can move for Summary judgment?

Answer 95

Any party may move for Summary Judgment.

Question 96

When can a party move for Summary Judgment?

Answer 96

A party can move for summary judgment no later than 30 days after the close of discovery.

Question 97

In summary judgment, can the court look at evidence?

Answer 97

Yes, a court usually looks at evidence in determining whether to grant a motion for summary judgment.

Question 98

How does the Court view evidence while determining whether to grant a Summary Judgment motion?

Answer 98

The court will view the evidence most favorable to the nonmoving party.

Question 99

Are pleadings evidence?

Answer 99

No, pleadings are not evidence unless verified (under oath).

Affidavits, declarations, deposition testimony, and interrogatory answers ARE evidence and should be used for motions and responses to motions.

Question 100

What is a Rule 26(f) Conference?

Answer 100

Unless court says otherwise, at least 21 days before scheduling conference, parties “meet and confer.” Discuss production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable evidence.

Afterward, must present a detailed discovery plan to the court.

Question 101

What is the pretrial conference order?

Answer 101

The pretrial conference order is a document that lays out the issues to be tried and evidence to be proffered at trial. It supersedes the pleadings.

Question 102

What is a motion in limine?

Answer 102

A motion in limine is a motion to decide whether the jury should hear certain evidence.

Question 103

Do parties have a right to a jury trial?

Answer 103

The 7th Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.

If both types of claims are present, the jury will decide the damages claim, but not the equitable claim.

Question 104

How does a party invoke right to jury trial for civil actions at law?

Answer 104

To invoke this right, the party must demand the jury in writing, no later than 14 days after service of the last pleading raising jury triable issue.

Question 105

How are jury members chosen?

Answer 105

The jury selection process is called voir dire.

Each side might ask the court to strike potential jurors.

Question 106

What are the two kinds of challenges to jurors that parties may make?

Answer 106

(1) For cause challenges - no limit on how many can be made.

(2) Peremptory challenges - each side gets 3, and can’t be based on race or gender

Question 107

How many jurors are there in a federal civil action case?

Answer 107

There is a minimum of 6 and maximum of 12 jurors in federal civil actions.

Question 108

Unless parties agree otherwise, what jury vote is required for a verdict?

Answer 108

Unless parties agree otherwise, a unanimous jury vote is required for a verdict.

Question 109

How are jury instructions developed and submitted?

Answer 109

First, parties submit proposed jury instructions at the close of all evidence.

Before final arguments & instruction, court informs parties of intended instructions.

Parties are allowed to make specific objections both before final arguments AND before instructions are given.

If party does not object before jury is “charged,” can’t object on appeal.

Exception: Court can consider an untimely objection to jury instructions if it was a plain error that affects substantial rights.

Question 110

What are the three types of verdict forms the judge may require the jury to use?

Answer 110

1) General: who wins & what relief
2) Special: jury answers specific questions of fact, then judge reaches legal conclusions
3) General w/ special interrogatories: jury gives general verdict w/ specific answers to questions to ensure jury considered important issues

Question 111

Once the jury returns a general verdict, who enters judgment?

Answer 111

The clerk of the court enters the judgment.

Question 112

What happens once jury returns consistent answers with a special verdict or general verdict with special interrogatories?

Answer 112

The court approves a judgement and the clerk of court enters the judgment.

Question 113

What happens if the verdict shows that the jury did not follow instructions or it is internally inconsistent?

Answer 113

Judge can ask jury to reconsider, or can order a new trial.

Question 114

How can a verdict be “impeached?”

Answer 114

Based on EXTERNAL matters (bribery, outside investigations), a new trial can be ordered.

Question 115

What are the requirements for the conclusion of a bench trial?

Answer 115

Judge must state findings of facts on the record or in writing.

Judge must state conclusions of law.

The judgment must be entered.

Question 116

What is a motion for Judgment as Matter of Law?

Answer 116

After the other side has been heard, a party may move for JMOL. Viewing the evidence in the light most favorable to the non-moving party, the court may grant a motion for JMOL if reasonable people could not disagree on the result.

Question 117

What is a Renewed motion for Judgment as a Matter of Law?

Answer 117

RJMOL is the same as JMOL but comes up AFTER trial has ended.

Question 118

When can a party file a motion for RJMOL?

Answer 118

Motion for RJMOL must be filed w/in 28 days after entry of judgment.

Question 119

What is the absolute prerequisite for filing a motion for RJMOL?

Answer 119

To file RJMOL, a party MUST have filed for JMOL during trial.

Question 120

When can a party move for a new trial?

Answer 120

A party may move for a new trial within 28 days after entry of judgment.

Question 121

What are some examples of reasons for granting a motion for new trial?

Answer 121

Any non-harmless error, for example:

(1) erroneous jury instruction
(2) new evidence that could not have been gotten before w/ due diligence
(3) misconduct by juror or party or lawyer, etc.
(4) judgment is against the weight of the evidence
(5) inadequate or excessive damages

Question 122

What are remittitur or additur?

Answer 122

Remittitur = court thinks damages are too high, gives π option of lowering damages or new trial. Allowed in Fed Courts.

Additutr = court thinks damages are too low, gives ∆ option of increasing damages or new trial. NOT allowed in Fed Courts (unconstitutional)

Question 123

How is a case appealed?

Answer 123

Generally, the losing party can file a notice of appeal in the Trial Court within 30 days after entry of FINAL judgment.

Question 124

What is “Final Judgment?”

Answer 124

To determine if a ruling is a final judgment ask, “Does the trial court have anything left to do on the merits of this case?”

Question 125

What interlocutory orders are immediately reviewable as of right?

Answer 125

Orders granting, modifying, or refusing preliminary or permanent injunctions are immediately appealable.

Question 126

What does the Interlocutory Appeals Act allow?

Answer 126

The Interlocutory Appeals Act allows appeal of a nonfinal order IF:

(1) trial judge certifies that it involves a controlling issue of law,
(2) as to which there is substantial ground for difference of opinion, AND
(3) the Court of Appeals agrees to hear it.

Question 127

What is the “collateral order” exception?

Answer 127

The collateral order exception is an exception to the Final Judgment Rule.
It states that Appellate Courts have discretion to hear a ruling on an issue IF it:
(1) is distinct from the merits of the case,
(2) involves an important legal question, AND
(3) is essentially unreviewable if parties must await a final judgment

Question 128

How does party appeal an order granting or denying class certification?

Answer 128

Court of Appeals has discretion to review an order granting/denying certification. The appealing party must seek review at the court of appeals w/in 14 days of the order.

Question 129

What standard of review does the Appellate Court apply to questions of law?

Answer 129

Appellate judges apply de novo review to questions of law.

Question 130

What standard of review does the Appellate Court apply to questions of fact?

Answer 130

Appellate judges apply a “clearly erroneous” review standard to questions of fact when a judge found facts.

Will affirm jury’s findings unless reasonable people could not have made that finding.

Question 131

Is analyzing whether jury instructions were proper a question of fact or law?

Answer 131

Proper content of jury instructions is a question of law.

Question 132

What standard of review do Appellate Courts apply to discretionary matters?

Answer 132

Appellate Courts review discretionary matters for “abuse of discretion.”

Question 133

Does every error require reversal on appeal?

Answer 133

No, harmless errors do not require reversal on appeal.

Question 134

Which preclusion law does the Court apply?

Answer 134

If Case 1 and Case 2 are in different judicial SYSTEMS, then apply the preclusion law of judicial system that decided Case 1.

Question 135

What are the requirements of res judicata claim preclusion?

Answer 135

(1) Case 1 & Case 2 were brought by SAME π against SAME ∆. (if former ∆ is now π, no preclusion
(2) Case 1 ended in valid final judgment on the merits.

(3) Case 1 and Case 2 asserted the same “claim”
[Majority, “claim” = right to relief from T/O;
Minority, “claim” = primary rights, so property & personal injury are NOT the same “claim”]

Question 136

What are the requirements for collateral estoppel issue preclusion?

Answer 136

(1) Case 1 ended in a valid final judgment on the merits.
(2) The same issue was actually LITIGATED and determined in Case 1.
(3) The issue was essential to the judgment in Case 1, meaning the finding on the issue was the basis for the judgment.
(4) Used against someone who was a party in Case 1 or represented by a party in Case 1.

Question 137

Who can assert collateral estoppel issue preclusion?

Answer 137

Someone who was a party (or represented by a party) in Case 1.

Nonmutual defensive issue preclusion:
∆ who was not a party to Case 1.
Okay to use collateral estoppel, so long as person that preclusion is begin asserted AGAINST had full chance to litigate the issue in Case 1.

Nonmutual offensive issue preclusion:
π who was not a party to Case 1.
Most courts don’t allow, but trend toward allowing if “fair.,” especially in Federal Courts.

Question 138

What are the three requirements for a party to be granted a TRO?

Answer 138

The party must:

(1) show that there will be immediate and irreparable harm without the TRO
(2) certify in writing all efforts made to give notice to adverse party & why notice should not be required, AND
(3) post a bond to cover costs and damages for adverse party in case TRO was wrongful

Question 139

What information about Expert Witnesses is discoverable?

Answer 139

Must hand over ID and EW Report, and adverse party may depose EW.

Communications between attorney & EW are protected by Work Product Doctrine.

Question 140

Can costs and fees be recovered for motions to compel during discovery?

Answer 140

A prevailing party on a discovery motion ordinarily will recover the costs and fees incurred in dealing with that motion. But, Rule 37 requires that the moving party certify that they have attempted to confer with the other party to obtain discovery materials w/o court intervention. If the movant does not properly attempt to confer, it cannot recover costs and fees, and cannot have sanctions imposed.

Question 141

Can a deposition be used as evidence at trial?

Answer 141

Depositions can be used as evidence at federal trials in certain instances, like if deponent is unavailable.

Question 142

If an error is not objected to during the deposition, is the objection waived?

Answer 142

Yes, any objection that can be cured at a deposition is waived if not asserted during the deposition.

Question 143

When may a π voluntarily dismiss without a court order or stipulation of all parties?

Answer 143

A plaintiff may voluntarily dismiss w/o a court order before the ∆ has filed an answer or if the parties file a stipulation signed by all parties agreeing to dismissal.

Question 144

When is a claim precluded under the doctrine of res judicata?

Answer 144

Claim preclusion bars a party from asserting an action barred from a past judgment.
Claim is precluded if:
(1) Final judgment on the merits
(2) Same π and same ∆
(3) Involved the same claim (same transaction or occurrence)