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Flashcards in Trial Deck (66)
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1
Q

What is a rule 26(f) conference?

A

Unless court order says otherwise, at least 21 days before scheduling order, parties discuss: production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information, and must submit a detailed discovery plan.

2
Q

Detailed discovery plan deadline

A

The detailed discovery plan must be presented to the court no later than 14 days after the conference

3
Q

What must the discovery plan include?

A

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.

4
Q

What discovery document can you serve before discovery conference?

A

RFPs, not ROGs.

5
Q

What is a scheduling order?

A

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.

6
Q

What is a pretrial conference?

A

The court may hold “pretrial conferences” to process the case.

7
Q

What is the final pretrial conference?

A

The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is 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, witness- es, etc.

8
Q

The Seventh Amendment preserves the right to jury in “civil actions at law,” but not…

A

in suits at equity.

9
Q

What is the jury right if a case includes both law and equity?

A

Jury decides all facts underlying damages clm, but not equity clm.

10
Q

What is the jury right if a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction?

A

The jury decides it.

11
Q

In what order will a dual law/equity trial usually proceed?

A

Jury determines all facts first, the judge decides equity facts.

12
Q

Does the Seventh Amendment apply in state court?

A

No, fed civil cases only.

13
Q

How do you assert your right to a jury?

A

Must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue (usually the answer.) If you don’t you waive the right to a jury.

14
Q

How many motions to strike “for cause” can a party make?

A

No limit.

15
Q

Is there a limit on the number of peremptory strikes?

A

Yes, 3 per side no matter how many parties are on each side.

16
Q

Peremptory strikes may only be used in what manner?

A

In a race and gender-neutral manner.

17
Q

How many jurors are on a civil jury in federal court?

A

6-12.

18
Q

Juror participation in verdict

A

Generally, all jurors participate in the verdict unless excused for good cause.

19
Q

Six jurors are empaneled and during trial one is excused for good cause because of health problems. Can the remaining five return a verdict?

A

No.

20
Q

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

A

unanimous.

21
Q

Effect of jury on factual and legal findings

A

The jury decides facts, but is instructed on the law by the judge.

22
Q

Parties submit proposed jury instructions to the judge. When do they do this?

A

They do this at the close of all evidence (or earlier if the court says so).

23
Q

When the court makes the decision about jury instructions

A

Before final argument and instruction, the court in- forms the parties of: (1) what instructions it will give and (2) what proposed jury instructions it rejected.

24
Q

Must the parties be allowed to make specific objections (1) to the instructions and (2) to the rejection of proposed instructions?

A

Yes, they must be allowed to object on the record and out of the jury’s hearing.

25
Q

If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions in…

A

a post-trial motion or on appeal.

26
Q

What is the exception to the jury instruction objection rule?

A

Exception: even if a party did not object timely, a court can consider a jury instruction if it contained plain error.

27
Q

Who determines what verdict form the jury will use?

A

The judge.

28
Q

What is a general verdict?

A

Verdict that just says who wins and, if P wins, what the relief is.

29
Q

What is a special verdict?

A

Here, the jury answers in writing specific written questions about the facts in dispute, but does not tell us who wins or loses.

30
Q

What is a general verdict with written questions?

A

Here, the jury not only gives a general verdict, but it also an- swers specific questions submitted to it. The questions ensure that the jury focused on the important issues.

31
Q

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

A

The clerk of court.

32
Q

If the jury returns a special verdict (or general verdict with written questions) and the answers are consistent with each other and with the verdict, what happens?

A

The judge approves the judgement and the clerk enters it.

33
Q

In a case involving general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict, the court may…

A

enter an appropriate judgment consistent with the answers. (Or it can tell the jury to reconsider or order a new trial.)

34
Q

If the answers that the jury gave are inconsistent with each other and one or more is inconsistent with the general verdict, what happens?

A

The court cannot enter a judgement. The court either instructs the jury to reconsider or orders a new trial.

35
Q

In general, a verdict may be “impeached” based upon…

A

“external” matters. e.g. jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial

36
Q

What happens if juror misconduct is proven?

A

a new trial can be ordered.

37
Q

May non-jurors give first-hand evidence on misconduct?

A

Yes.

38
Q

What’s the exception to the juror misconduct rule?

A

a verdict will not be set aside if the misconduct was harmless – e.g. juror chatted for a moment with P about the weather (not the case).

39
Q

When a bench trial occurs, what must the judge do after determining the facts?

A
  1. state the findings of fact on the record or in writing, 2.state her conclusions of law separate from the findings of fact 3. enter the judgement.
40
Q

What is the standard Motion for Judgment as a Matter of Law (“JMOL”)?

A

Used to be called a directed verdict. The judge enters for the winning party because the evidence is so clear, that reasonable people could not disagree on the result. Therefore, jury is not needed.

41
Q

When considering a JMOL, the court views the evidence in the light most favorable to…

A

the non-moving party.

42
Q

When can a party move for JMOL?

A

After the other side has been heard at trial.

43
Q

What is a renewed motion for judgement as a matter of law?

A

Same as JMOL except it’s raised after judgement.

44
Q

What is the standard for RJMOL?

A

The jury reached a conclusion that reasonable people could not have reached. e.g. Plaintiff sues for A&B but makes no evidence proving B. Jury still holds defendant liable for B.

45
Q

What happens if the judge grants RJMOL?

A

The court enters judgment for the party that lost the jury verdict.

46
Q

When considering RJMOL, how does the court view the evidence?

A

the court views the evidence in the light most favorable to the non-moving party.

47
Q

What is the DDL for JMOL?

A

28 days after entry of judgement.

48
Q

In order to bring RJMOL, you must have…

A

moved for JMOL at proper time at trial. Failure to do so waives RJMOL.

49
Q

RJMOL motion must be based upon…

A

the same grounds as the JMOL motion.

50
Q

When does a Motion for a New Trial occur?

A

Judgment is entered, but some error at trial requires that we should start over and have a new trial.

51
Q

What can a motion for a new trial be based on?

A

Any (non-harmless) error that makes the judge think we should have a do-over.

52
Q

What’s the DDL for MOT for a new trial?

A

28 days after judgement.

53
Q

What are some examples of errors worthy of a motion for a New Trial?

A

(1) Judge gave an erroneous jury instruction
(2) New evidence that could not have been gotten before with due diligence
(3) Misconduct by juror or party or lawyer, etc.
(4) Judgment is against weight of the evidence (serious error of judgment)
(5) Inadequate or excessive damages.

54
Q

What if a party met the standard for RJMOL but waived it by not moving for JMOL at trial?

A

She could move for new trial on the grounds that the verdict is against the weight of the evidence.

55
Q

Ordering new trial is less drastic than ordering RJMOL, because…

A

new trial results in starting over, so the same party still might win. RJMOL results in taking judgment away from one party and giving it to the other.

56
Q

What is the standard for ordering a new trial due to excessive/inadequate damages?

A

The court finds the damages figure shocks the conscience

57
Q

What is another option if excessive damages are awarded but a new trial is expensive?

A

Remittitur and Additur.

58
Q

What is Remittitur?

A

Court gives the plaintiff the choice to take a lesser amount or go through a whole new trial.

59
Q

Court simply lowering the amount of damages

A

The court cannot simply lower the figure that was set by the jury because that would violate the Seventh Amendment. So the court must give P the choice of accepting the lower amount or going to a new trial.

60
Q

What is Additur?

A

Gives D the choice to pay more damages or go through a whole new trial.

61
Q

Is Additur okay in state and federal court?

A

It is OK in state court, but unconstitutional in federal court.

62
Q

What is the rule regarding offer of judgement?

A

Defendant offers to pay an amount to settle P’s claim. If P rejects and loses/wins less than the offer, P is liabl to D for D’s costs incurred after the offer was made.

63
Q

What’s the DDL for D to make the written offer?

A

14 days before trial

64
Q

What is a motion for relief from order or judgement?

A

Where a party asks the district court to set aside an order or judgement that it ordered.

65
Q

What are the grounds to set aside an order or judgement?

A
66
Q

What are the grounds to set aside when new evidence has been discovered?

A

If the evidence could not have been discovered with due diligence in time to move for a new trial.