Conferences, Trial, Post-Trial Motions

Question 1

Judicial Management — Conferences

Answer 1

• Under Rule 16 (in conjunction with Rule 26), party representatives must Meet & Confer with each other and/or the court at various times throughout the proceeding
• Most of these conferences are for discovery purposes

_________________________________________

(A) Mandatory Meet & Confer — 26(f) Conference

Timing

• Parties must meet at least 21 days before the scheduling conference
  
  • unless court order says otherwise

At the Conference, the parties:
(1) Discuss:

• claims, defenses, and settlement
• production of required initial disclosures, and preservation of discoverable information

(2) Develop a Detailed Plan for Discovery

• Plan Must Include:
  
  • Views & Proposals on Timing
  • Issues about Discovery of ESI
    
    • how it will be produced
    • any problems retrieving it (e.g., deleted files)
• Present To Court
  
  • Must present the discovery plan to court within 14 days after the Meet & Confer

Note

• Assuming no court order or stipulation provides otherwise, a party can’t send discovery requests to another party until after the Rule 26(f) Conference.
  
  • e.g., Depos, RFPs, RFAs, Interrogatories
• Exception — Requests for Production
  
  • Can serve RFP earlier — more than 21 days after Service of Process
    
    • These requests are treated as if served at the Rule 26(f) Conference

_________________________________________

(B) Scheduling Conference

• Conference at or after which judge issues Scheduling Order

Scheduling Order

• Unless local rule or court order says otherwise, the court enters an order which sets deadlines for
  
  • filings of pleadings, joinder, amendments, motions, and completion of discovery, etc.
• This is a roadmap for how the litigation proceeds up to trial.

_________________________________________

(C) Pretrial Conferences

• Conference before the court — held as needed to process / move case forward and encourage settlement

Final Pretrial Conference

• Determines / finalizes
  
  • Issues to be resolved at trial
  • Evidence to be proffered at trial
• Pretrial Conference Order
  
  • Recorded in the Pretrial Conference Order, which supersedes the pleadings
  • This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.
    
    • NO SURPRISES — Issues & Evidence not included in the order are generally excluded at trial
    • e.g., witness won’t be able to testify — unless you can amend the pretrial conference order, which is difficult to do

Question 2

Mandatory Meet & Confer

26(f) Conference

Answer 2

Timing

• Parties must meet at least 21 days before the scheduling conference
  
  • unless court order says otherwise

At the Conference, the parties:
(1) Discuss:

• claims, defenses, and settlement
• production of required initial disclosures, and preservation of discoverable information

(2) Develop a Detailed Plan for Discovery

• Plan Must Include:
  
  • Views & Proposals on Timing
  • Issues about Discovery of ESI
    
    • how it will be produced
    • any problems retrieving it (e.g., deleted files)
• Present To Court
  
  • Must present the discovery plan to court within 14 days after the Meet & Confer

Note

• Assuming no court order or stipulation provides otherwise, a party can’t send discovery requests to another party until after the Rule 26(f) Conference.
  
  • e.g., Depos, RFPs, RFAs, Interrogatories
• Exception — Requests for Production
  
  • Can serve RFP earlier — more than 21 days after Service of Process
    
    • These requests are treated as if served at the Rule 26(f) Conference

Question 3

​​Scheduling Conference

Answer 3

• Conference at or after which judge issues Scheduling Order

Scheduling Order

• Unless local rule or court order says otherwise, the court enters an order which sets deadlines for
  
  • filings of pleadings, joinder, amendments, motions, and completion of discovery, etc.
• This is a roadmap for how the litigation proceeds up to trial

Question 4

Pretrial Conference

Answer 4

• Conference before the court — held as needed to process / move case forward and encourage settlement

Final Pretrial Conference

• Determines / finalizes
  
  • Issues to be resolved at trial
  • Evidence to be proffered at trial
• Pretrial Conference Order
  
  • Recorded in the Pretrial Conference Order, which supersedes the pleadings
  • This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.
    
    • NO SURPRISES — Issues & Evidence not included in the order are generally excluded at trial
    • e.g., witness won’t be able to testify — unless you can amend the pretrial conference order, which is difficult to do

Question 5

Fact Finding

Judge vs Jury

Answer 5

• If we HAVE a Jury
  
  • it determines the facts, and
  • returns the “verdict.”
• If we DON’T have a Jury
  
  • the judge determines the facts (in a “bench trial”)

Question 6

Motion In Limine

Answer 6

Pretrial motion to decide whether the jury should hear certain evidence (include or exclude)

Question 7

Right to Jury Trial

in Federal Court

Answer 7

7A provides Right to Jury in

• “Civil Actions at Law”
• but NOT in Suits at Equity

Not incorporated against states

Mixed Cases Involving Law & Equity Claims

• Basic Rule
  
  • First — Jury will decide all underlying facts on claim at law
  • Remaining Facts — Judge will decide facts for equity claims
• Facts Underlying Both Law & Equity Claims
  
  • If a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction, the jury will decide it.

Timing & Procedure

• (a) must Demand the jury in writing (not oral)
• (b) no later than 14 days after service of the Last Pleading addressing a jury triable issue
  
  • last pleading addressing a jury issue is usually the answer
  • there are only two pleadings — complaint & answer

Waiver — If you don’t do this, you waive the right to a jury

• All or nothing
• Ex — P forgets to include demand for a jury in his complaint. Before D answers, he files an amended complaint adding a new claim and demanding a jury. P get a jury even on the original claim – because he has not yet been served with the answer (and even then, he would get 14 more days)

Waiver — In Removal Cases

• (a) State Law Authorizes
  
  • If prior to removal, party made an express demand for jury in accordance with state law — they don’t need to make a demand after removal
  • If state law applicable in the court from which the case is removed doesn’t require parties to make an express demand — then they don’t need to make a demand after removal — unless the court directs they do so
• (b) If it Doesn’t
  
  • Moving Party — must file demand within 14 days after the notice of removal is filed
  • Non-Moving Party — must file demand within 14 days after service on him of the notice of filing for removal

Question 8

Right to Jury Trial

in Federal Court

Timing & Procedure

Answer 8

• (a) must Demand the jury in writing (not oral)
• (b) no later than 14 days after service of the Last Pleading addressing a jury triable issue
  
  • last pleading addressing a jury issue is usually the answer
  • there are only two pleadings — complaint & answer

Waiver — If you don’t do this, you waive the right to a jury

• All or nothing
• Ex — P forgets to include demand for a jury in his complaint. Before D answers, he files an amended complaint adding a new claim and demanding a jury. P get a jury even on the original claim – because he has not yet been served with the answer (and even then, he would get 14 more days)

Waiver — In Removal Cases

• (a) State Law Authorizes
  
  • If prior to removal, party made an express demand for jury in accordance with state law — they don’t need to make a demand after removal
  • If state law applicable in the court from which the case is removed doesn’t require parties to make an express demand — then they don’t need to make a demand after removal — unless the court directs they do so
• (b) If it Doesn’t
  
  • Moving Party — must file demand within 14 days after the notice of removal is filed
  • Non-Moving Party — must file demand within 14 days after service on him of the notice of filing for removal

__________________________________________

7A provides Right to Jury in

• “Civil Actions at Law”
• but NOT in Suits at Equity

Not incorporated against states

Mixed Cases Involving Law & Equity Claims

• Basic Rule
  
  • First — Jury will decide all underlying facts on claim at law
  • Remaining Facts — Judge will decide facts for equity claims
• Facts Underlying Both Law & Equity Claims
  
  • If a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction, the jury will decide it.

Question 9

Right to Trial

in Diversity Cases

Answer 9

Right to Jury Trial (if no right in State court)

• Fed Court must permit a jury trial in any diversity “suit at CL” even though the state court would deny a jury (7A prevails over state law in Erie situations)

State Law Direct Assignment of Fact Issue to Court

• Fed Court will generally follow the Fed Rules of submitting issues of fact to the jury
• even though the State law assigns the issue to the court

State Law Requires Fact to be Determined by Jury

• If the State law requires submission of a fact issue to the jury
• Fed Court may nonetheless direct a verdict under the usual standards or otherwise follow a Fed Rule that calls for the court to be the trier of fact.

state law is disregarded in determining the sufficiency of the evidence to create a jury issue; i.e., the directed verdict standards are always federal.

Question 10

Jury Selection

Answer 10

Voir Dire — Jury selection process occurring at beginning of trial

Each party may strike (remove) potential jurors, either

• (i) For Cause, or
• (ii) through Peremptory Challenges

(i) For-Cause Strikes

• Potential juror will not be impartial
  
  • Bias
  • Prejudice
  • Relation to Party
• Two Types of Bias
  
  • Actual Bias — when a juror indicates he would use predetermined beliefs or principles instead of the facts presented to determine a case.
  • Implied Bias — when it is very likely an average person in the same position as the juror would be partial to one of the parties. Even if the juror states he can still be fair and impartial, he must be excused from the case.
• Unlimited
  
  • Each side has unlimited for-cause strikes

(ii) Peremptory Strikes / Challenges

• Can only be used for any Race & Gender-Neutral purpose
  
  • EP — jury selection = state action
• Historically, one did not need to state a reason — just dismiss the potential juror
• Number
  
  • Each SIDE has three to use during voir dire — not per party (all Ps / Ds)
  • Court can potentially provide side with more

Question 11

How Many

Peremptory Strikes / Challenges

Answer 11

• Each SIDE has 3 to use during voir dire
  
  • not per party (all Ps / Ds)
• Court can potentially provide side with more

_________________________________________

Voir Dire — Jury selection process occurring at beginning of trial

Each party may strike (remove) potential jurors, either

• (i) For Cause, or
• (ii) through Peremptory Challenges

(i) For-Cause Strikes

• Potential juror will not be impartial
  
  • Bias
  • Prejudice
  • Relation to Party
• Two Types of Bias
  
  • Actual Bias — when a juror indicates he would use predetermined beliefs or principles instead of the facts presented to determine a case.
  • Implied Bias — when it is very likely an average person in the same position as the juror would be partial to one of the parties. Even if the juror states he can still be fair and impartial, he must be excused from the case.
• Unlimited
  
  • Each side has unlimited for-cause strikes

(ii) Peremptory Strikes / Challenges

• Can only be used for any Race & Gender-Neutral purpose
  
  • EP — jury selection = state action
• Historically, one did not need to state a reason — just dismiss the potential juror

Question 12

Jury Composition

(number etc)

Answer 12

Number in Civil Trials in Fed Court

• Minimum — 6
  
  • must begin with
• Maximum — 12

No Alternates

• No alternate jurors in federal court

Generally, all jurors participate in the verdict

• Unless excused for good cause
• But remember — must have a minimum of 6 to return a verdict
• Ex — 6 jurors are empaneled and during trial one is excused for good cause because of health problems.
  
  • Can the remaining 5 return a verdict?
    
    • No — Unless the parties agree otherwise

Jury Vote Required for a Verdict

• Unanimous
  
  • Unless the parties agree otherwise

Question 13

Jury Vote Required for a Verdict

Answer 13

• Unanimous (of 6 min)
  
  • Unless the parties agree otherwise

Number in Civil Trials in Fed Court

• Minimum — 6
  
  • must begin with
• Maximum — 12

No Alternates

• No alternate jurors in federal court

Generally, all jurors participate in the verdict

• Unless excused for good cause
• But remember — must have a minimum of 6 to return a verdict
• Ex — 6 jurors are empaneled and during trial one is excused for good cause because of health problems.
  
  • Can the remaining 5 return a verdict?
    
    • No — Unless the parties agree otherwise

Question 14

Jury Instructions

Answer 14

• Jury decides facts
  
  • but is instructed on the law by the judge

Timing & Procedure​

Requested Jury Instructions

• Parties may file requested jury instructions to be given to the jury during deliberations
• Usually given to jury at close of evidence — but can be sooner at the court’s direction

Proposed Instructions

• Before final argument and instructions — the court informs the parties of the
  
  • (1) Instructions it Will Give and
  • (2) Proposed Instructions it Rejected

Objections to Proposed Instructions

(i) Right to Object

• Before final arguments and before instructions are delivered to the jury — Parties must
  
  • (1) have an opportunity to object on the record
  • Must be allowed to make specific objections as to the
    
    • (a) proposed instructions
    • (b) rejection of requested instructions
  • (2) outside the presence of the jury

(ii) Waiver of Objection

• Party must timely object to a proposed instruction — before jury is “charged” (given the instructions)
• If objections are not made before the jury is charged, the party cannot raise a problem with jury instructions in a post-trial motion or on appeal
  
  • Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
    
    • C.f. If adequately preserved, the instructions are reviewed using an abuse of discretion standard

Question 15

Objection to

Proposed Jury Instructions

Answer 15

Objections to Proposed Instructions

(i) Right to Object

• Before final arguments and before instructions are delivered to the jury — Parties must
  
  • (1) have an opportunity to object on the record
  • Must be allowed to make specific objections as to the
    
    • (a) proposed instructions
    • (b) rejection of requested instructions
  • (2) outside the presence of the jury

(ii) Waiver of Objection

• Party must timely object to a proposed instruction — before jury is “charged” (given the instructions)
• If objections are not made before the jury is charged, the party cannot raise a problem with jury instructions in a post-trial motion or on appeal
  
  • Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
    
    • C.f. If adequately preserved, the instructions are reviewed using an abuse of discretion standard
• Jury decides facts
  
  • but is instructed on the law by the judge

Timing & Procedure​

Requested Jury Instructions

• Parties may file requested jury instructions to be given to the jury during deliberations
• Usually given to jury at close of evidence — but can be sooner at the court’s direction

Proposed Instructions

• Before final argument and instructions — the court informs the parties of the
  
  • (1) Instructions it Will Give and
  • (2) Proposed Instructions it Rejected

Question 16

Forms of Jury Verdicts

Answer 16

Court decides verdict to be used:

(1) General Verdicts

Jury just says

• (i) Who Wins — P or D — and
• (ii) If P Wins — What the Amount of Damages is

(2) Special Verdicts

• Court
  
  • submits Qs to jury regarding each ultimate fact and
  • makes legal conclusions based on jury findings
• Jury
  
  • asked to make factual findings (answered in writing) about facts in dispute
    
    • (but doesn’t decide who wins or loses)
• Court
  
  • then applies the law to those (now determined) facts
• Parties must object to proposed jury Qs before jury deliberates

(3) General Verdict with Interrogatories

The Jury:

• (a) gives a General Verdict, and
  
  • who - wins / loses
  • • damage amount
• (b) answers specific Qs submitted to it
  
  • These Qs ensure that the jury focused on / properly considered the important issues

Question 17

General Verdict with Interrogatories

Answer 17

The Jury:

• (a) gives a General Verdict, and
  
  • who - wins / loses
  • • damage amount
• (b) answers specific Qs submitted to it
  
  • These Qs ensure that the jury focused on / properly considered the important issues

_________________________________________

Court decides verdict to be used:

General Verdicts

Jury just says

• (i) Who Wins — P or D — and
• (ii) If P Wins — What the Amount of Damages is

Special Verdicts

• Court
  
  • submits Qs to jury regarding each ultimate fact and
  • makes legal conclusions based on jury findings
• Jury
  
  • asked to make factual findings (answered in writing) about facts in dispute
    
    • (but doesn’t decide who wins or loses)
• Court
  
  • then applies the law to those (now determined) facts
• Parties must object to proposed jury Qs before jury deliberates

Question 18

Special Verdicts

Answer 18

• Court
  
  • submits Qs to jury regarding each ultimate fact and
  • makes legal conclusions based on jury findings
• Jury
  
  • asked to make factual findings (answered in writing) about facts in dispute
    
    • (but doesn’t decide who wins or loses)
• Court
  
  • then applies the law to those (now determined) facts
• Parties must object to proposed jury Qs before jury deliberates

_________________________________________

Court decides verdict to be used:

General Verdicts

Jury just says

• (i) Who Wins — P or D — and
• (ii) If P Wins — What the Amount of Damages is

General Verdict with Interrogatories

The Jury:

• (a) gives a General Verdict, and
  
  • who - wins / loses
  • • damage amount
• (b) answers specific Qs submitted to it
  
  • These Qs ensure that the jury focused on / properly considered the important issues

Question 19

General Verdicts

Answer 19

Jury just says

• (i) Who Wins — P or D — and
• (ii) If P Wins — What the Amount of Damages is

_________________________________________

Court decides verdict to be used

Special Verdicts

• Court
  
  • submits Qs to jury regarding each ultimate fact and
  • makes legal conclusions based on jury findings
• Jury
  
  • asked to make factual findings (answered in writing) about facts in dispute
    
    • (but doesn’t decide who wins or loses)
• Court
  
  • then applies the law to those (now determined) facts
• Parties must object to proposed jury Qs before jury deliberates

General Verdict with Interrogatories

The Jury:

• (a) gives a General Verdict, and
  
  • who - wins / loses
  • • damage amount
• (b) answers specific Qs submitted to it
  
  • These Qs ensure that the jury focused on / properly considered the important issues

Question 20

Entry of Judgement

&

Erroneous Verdicts

Answer 20

• *(1)** General Verdict
  (a) Consistent Determinations
• If the jury returns a general verdict — Clerk of Court Enters Judgment
  (b) Erroneous Verdicts
• → Court can
  • (i) instruct the jury to reconsider,
  • (ii) order a new trial

Erroneous if:

• Inconsistent Determinations in Verdict
  
  • determinations are irreconcilable
  • e.g., when a verdict is rendered against a person vicariously liable and the principal wrongdoer is exonerated
• simply finds for P “for actual damages suffered”
• *(2) Special Verdict & (3) General Verdict with Interrogatories**
  (a) If Answers Consistent (w/ each other & general verdict)
• If the jury returns a special verdict (or general verdict with written Qs), and — the answers are consistent with each other and with the verdict:
  
  • Judge Approves Judgement — & — Clerk Enters It

(b) Consistent Answers (to special interrogatories) — but one or more is inconsistent w/ General Verdict

Court can

• (i) enter judgment in accord with the special interrogatories,
• (ii) have the jury reconsider its answers or verdict, or
• (iii) order a new trial

(c) Inconsistencies of Answers (to special interrogatories)

• Court cannot enter judgement
• Court can either
  
  • (i) instruct the jury to reconsider,
    
    • jury may completely change its answers or verdict when re-deliberation is ordered
  • (ii) order a new trial

Question 21

Juror Misconduct

Answer 21

• Generally, a verdict may be “impeached” based upon “external” matters.
  
  • New trial can be ordered
  • Examples
    
    • Jurors were bribed
    • Jurors based the verdict on their investigation of matters outside of court (instead of the evidence at trial)
  • Non-jurors may give first-hand evidence of such things
• But a verdict will not be set aside if the misconduct was harmless
  
  • juror chatted for a moment with P about the weather (not the case)

Question 22

Bench Trials

Answer 22

Judge acts as fact finder — determines the facts at trial

Happens if:

• (i) 7A doesn’t apply, or
• (ii) the parties waived right to jury trial

In Bench Trial — Judge must:

• (1) record his “findings of fact”
  
  • must state them on the record or in writing
• (2) record his conclusions of law
  
  • stated separately from the findings of fact
• (3) enter the judgment
  
  • very short— just says who wins and (if P won) the relief.

Question 23

JMOL

Answer 23

Motion for Judgment as a Matter of Law

“Directed Verdict”

• It applies in jury trial.
• If the judge grants JMOL, the case will not go to the jury
  
  • the judge grants the motion and enters judgment.

Analysis

• The motion is based upon evidence presented at trial.
• Judge grants JMOL & refuses to let the jury decide case
  
  • Bcas reasonable people could not disagree on the result
    
    • court views the evidence in the light most favorable to the non-moving party
• It’s like SJM (where there was no dispute of material fact), except that this comes up at trial instead of before trial.

Timing — when can a party move for JMOL

• After the other side has been heard at trial (presented all their evidence)
  
  • Ex — P presents her evidence at trial and rests. At that point D may move for JMOL — because P has been heard at trial
• But not after the case has been submitted to the jury

Question 24

“Directed Verdict”

now called:

Answer 24

JMOL — Motion for Judgment as a Matter of Law

• It applies in jury trial.
• If the judge grants JMOL, the case will not go to the jury
  
  • the judge grants the motion and enters judgment.

Analysis

• The motion is based upon evidence presented at trial.
• Judge grants JMOL & refuses to let the jury decide case
  
  • Bcas reasonable people could not disagree on the result
    
    • court views the evidence in the light most favorable to the non-moving party
• It’s like SJM (where there was no dispute of material fact), except that this comes up at trial instead of before trial.

Timing — when can a party move for JMOL

• After the other side has been heard at trial (presented all their evidence)
  
  • Ex — P presents her evidence at trial and rests. At that point D may move for JMOL — because P has been heard at trial
• But not after the case has been submitted to the jury

Question 25

JMOL Timing When can a party move for JMOL?

Answer 25

* After the other side has been heard at trial (presented all their evidence) * Ex — P presents her evidence at trial and rests. At that point D may move for JMOL — because P has been heard at trial * But not after the case has been submitted to the jury \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Motion for Judgment as a Matter of Law (“Directed Verdict”) * It applies in jury trial. * If the judge grants JMOL, the case will not go to the jury * the judge grants the motion and enters judgment. _Analysis_ * The motion is based upon evidence presented at trial. * Judge grants JMOL & refuses to let the jury decide case * Bcas reasonable people could not disagree on the result * court views the evidence in the light most favorable to the non-moving party * It’s like SJM (where there was no dispute of material fact), except that this comes up at trial instead of before trial.

Question 26

RJMOL

Answer 26

**Renewed Motion for Judgment as a Matter of Law** Same as JMOL but raised after judgement * can move for RJMOL — within 28 days after Entry of Judgment Compare Timing of JMOL * When can a party move for JMOL * After the other side has been heard at trial (presented all their evidence) * Ex — P presents her evidence at trial and rests. At that point D may move for JMOL — because P has been heard at trial * But not after the case has been submitted to the jury **_Prerequisite to Bringing RJMOL — Bringing JMOL_** * You must have moved for JMOL at proper time at trial * Failure to do so waives RJMOL * Not only that — RJMOL motion must be based upon the same grounds as JMOL motion * If in JMOL, D argues that P didn’t establish element X, can’t now say it is because P didn’t establish element Y — or that some defense applies _Example_ * The elements of P’s claim are W, X, Y, and Z (P must prove these) * At trial, P puts on evidence of W, X, and Z. She puts on no evidence of Y. * D moves for JMOL * Court should grant it, because reasonable people could not disagree – it is clear that D should win. * However, the judge might deny * probably figures the jury will get it right — this sometimes happens * The case goes to the jury, which returns a verdict for P (wrongly) * _D can move for RJMOL_ * It may be granted because — the jury reached a conclusion that reasonable people could not have reached * If RJMOL is granted, the court enters judgment for the party that lost the jury verdict

Question 27

Motion for a New Trial

Answer 27

Either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial * Must be filed within 28 days after entry of judgment \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **_Grounds for New Trial_** Unlimited — any (non-harmless) error that makes the judge think we should have a do-over. Potential errors include: * Prejudicial Error (by Judge) * Jury Instruction * Judge gave an erroneous jury instruction * Judge Mistates Law * Misconduct * by juror, party, lawyer, etc. * e.g., jury considers evidence excluded at trial * Judgment Against Weight of the Evidence * serious error of judgment * jury erred in reaching verdict given evidence before it * New Discovered Evidence * that could not have been gotten before with due diligence * Damages — Inadequate or Excessive * standard for ordering new trial on this ground — the damages “shocks the conscience” \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Additur_ (increase award) * State — Ok * Federal — Unconstitutional (violates 7A) * court can't increase jury award _Remittitur_ (decrease award) * Constitutional in State & Fed Court * If jury awards amount so high it shocks the conscience * Court can * (1) order a new trial, or * (2) offer P a choice of taking lesser figure set by court (Remittitur) * If P doesn't accept, it will order a new trial * Court CANT simply lower the figure that was set by the jury * This would violate the 7A * P must be given the choice \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Motion for New Trial vs. JMOL or RJMOL_ * Ordering New Trial is less drastic than ordering RJMOL * New trial results in starting over, so the same party might still win * RJMOL results in taking judgment away from one party and giving it to the other

Question 28

Motion for New Trial vs. JMOL or RJMOL

Answer 28

Ordering New Trial is less drastic than ordering RJMOL * New trial results in starting over, so the same party might still win * RJMOL results in taking judgment away from one party and giving it to the other \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **_Motion for a New Trial_** Either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial * Must be filed within 28 days after entry of judgment **_Grounds for New Trial_** Unlimited — any (non-harmless) error that makes the judge think we should have a do-over. Potential errors include: * Prejudicial Error (by Judge) * Jury Instruction * Judge gave an erroneous jury instruction * Judge Mistates Law * Misconduct * by juror, party, lawyer, etc. * e.g., jury considers evidence excluded at trial * Judgment Against Weight of the Evidence * serious error of judgment * jury erred in reaching verdict given evidence before it * New Discovered Evidence * that could not have been gotten before with due diligence * Damages — Inadequate or Excessive * standard for ordering new trial on this ground — the damages “shocks the conscience” \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Additur_ (increase award) * State — Ok * Federal — Unconstitutional (violates 7A) * court can't increase jury award _Remittitur_ (decrease award) * Constitutional in State & Fed Court * If jury awards amount so high it shocks the conscience * Court can * (1) order a new trial, or * (2) offer P a choice of taking lesser figure set by court (Remittitur) * If P doesn't accept, it will order a new trial * Court CANT simply lower the figure that was set by the jury * This would violate the 7A * P must be given the choice

Question 29

When Damages Award Too High / Low

Answer 29

* If Damages — Inadequate or Excessive * “shocks the conscience” * Judge can * (1) Order a New Trial * (2) x Additur x / Remittitur \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Additur_ (increase award) * State — Ok * Federal — Unconstitutional (violates 7A) * court can't increase jury award _Remittitur_ (decrease award) * Constitutional in State & Fed Court * If jury awards amount so high it shocks the conscience * Court can * (1) order a new trial, or * (2) offer P a choice of taking lesser figure set by court (Remittitur) * If P doesn't accept, it will order a new trial * Court CANT simply lower the figure that was set by the jury * This would violate the 7A * P must be given the choice \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Motion for New Trial vs. JMOL or RJMOL_ * Ordering New Trial is less drastic than ordering RJMOL * New trial results in starting over, so the same party might still win * RJMOL results in taking judgment away from one party and giving it to the other

Question 30

Offer of Judgement

Answer 30

This is about Settlement Offers * At least 14 days before the date set for trial * Party defending a claim can make a formal settlement offer * P can Accept * Judgment will be entered for that amount * Judgement Less Than Settlement Offer * If P rejects settlement offer and obtains judgment less favorable than the unaccepted offer, he must pay costs incurred by the offering party after the offer was made

Question 31

Motion for Relief from Order or Judgment

Answer 31

Party asks the District Court to "set aside" an Order or Judgment it entered Timing * Time from when Order / Judgement entered \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Grounds Which Must be Brought in "Reasonable Time" Not to Exceed 1 Year_ decided by judge not necessarily 1 yr — could be less * Mistake, Inadvertence, Surprise, or Excusable Neglect * (including viable defense) * Fraud, Misrepresentation, or Misconduct by Opposing Party * Ex — P wins judgement on claim she was disabled. However, a video came out later of her jogging with her doctor. * Newly Discovered Evidence * Must be truly new and not simply cumulative of what we had before. * Couldn't have been discovered with due diligence in time to move for a new trial * (new trial motion - within 28 days after judgement) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ _Grounds Which Can be Brought within Reasonable Time (even beyone 1 year)_ * Clerical Error * error arising from oversight or omission * may occur in judgments, orders, or other parts of the record. * court can correct clerical errors on its own motion or the motion of any party * Judgement is Void * Doesn't apply simply bcas judgment was erroneous; such errors are to be remedied on appeal. * Applies only if there was a fundamental flaw such as lack of Jxd or deprivation of DP by failure to give notice or opportunity to be heard * The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application