Trial Procedure

Question 1

Discovery: Case Management

Answer 1

• Judge must hold a discovery conference to establish a schedule

Question 2

Discovery: When is material discoverable?

Answer 2

• when the method of discovery was proper under the federal rules
• materials are within the scope of discovery

Question 3

Discovery: Mandatory Discovery Planning Conference

Answer 3

• Parties must meet to discuss a discovery plan and promptly and automatically disclose the following:
• All potential supporting witnesses
• all relevant documents
• damages computation
• relevant insurance coverage

Question 4

Discovery: Depositions

Answer 4

• Only discovery evidence that can be used on a non party
• 10 per side
• 7 hours long max

Question 5

Discovery: interrogatories

Answer 5

• Written questions served on a party
• must be answered within 30 days
• 25 max
• answering party can give over business records if they’ll answer instead

Question 6

Discovery: Request for physical or mental exam

Answer 6

• Requires a court order
• granted upon good cause (no better way to find out) shown if condition in question is in controversy

Question 7

Discovery: Request for documents or ESI

Answer 7

• Request must be focused on documents within the possession custody or control of a party who must respond in 30 days
• ESI need not be initially produced if it would be unduly burdensome to do so
• courts can order ESI production upon good cause (benefits outweigh burdens)

Question 8

Discovery: Request for admission of certain facts

Answer 8

• Party may request that another party admit that certain facts are true or documents are genuine
• information is deemed to be admitted unless denied within 30 days

Question 9

Pretrial Disclosure of Witnesses: Expert Witnesses

Answer 9

• must be full disclosure of testifying experts reports and credentials at least 90 days before trial

Question 10

Pretrial Disclosure of Witnesses: Lay Witnesses

Answer 10

• Must disclose lay witnesses and their topics of testimony at least 30 days before trial

Question 11

Discovery: Duty to Supplement

Answer 11

• parties have a duty to automatically update or supplement prior disclosures within a reasonable time of discovering new information

Question 12

Discovery: Scope of Discovery General Rules

Answer 12

Material is within the scope of discovery if it is

• relevant
• proportionate
• not privileged

Question 13

Discovery: Scope of Discovery (Relevant)

Answer 13

• need not be admissible at trial, and just has to relate to any part of any claim or defense

Question 14

Discovery: Scope of Discovery (proportionate)

Answer 14

• Burden of Discovery must be outweighed by benefits

Question 15

Discovery: Scope of Discovery (not privileged)

Answer 15

• Work Product: any material that has been prepared in anticipation of litigation is privileged
• types
• attorney’s mental impressions (always privileged)
• all other forms are not discoverable unless there is a showing of substantial need such that an undue hardship would result without it (i.e. someone gave a privileged statement but since died)

Question 16

Discovery: Failure to Respond to a Discovery Request

Answer 16

• if a party makes a good faith attempt to obtain discovery, and there is no response they may
• move to compel discovery
• receive costs and fees incurred in obtaining the discovery

Question 17

Discovery: Failure to make an automatic disclosure

Answer 17

• if you fail to make an automatic disclosure, then you are barred from using the information or evidence during the trial unless you can show a substantial justification for failure

Question 18

Discovery: Violation of a Court Order

Answer 18

• Court can bar presentation of claims or defense

Question 19

Motions: Motion for Summary Judgment

Answer 19

• May be filed up to 30 days after close of discovery
• Party opposing the motion fails to present admissible evidence demonstrating a genuine material fact for trail, and judgment is proper as a matter of law

-once asserted, the burden shifts to nonmoving party to produce proper evidence from which a jury could find in its favor

Question 20

Motions: JMOL

Answer 20

• must be filed after the adverse party has been heard but before jury deliberations
• Courts will grant if there is a legally insufficient evidentiary basis from which a reasonable jury could find in favor of the nonmoving party

Question 21

Motions: Renewed JMOL

Answer 21

• only allowed if a JMOL was raised at trial, and can be reraised after 28 days of judgment
• courts will grant if there is a legally insufficient evidentiary basis from which a reasonable jury could find in favor of the nonmoving party

Question 22

Motions: Motion for a New Trial

Answer 22

• Must be filed up to 28 days after judgment
• Court will Grant if there were errors at trial affecting the parties substantial trial rights or the verdict was against the manifest weight of the evidence

Question 23

Motions: Right to a Trial By Jury

Answer 23

• Must be filed by a written demand for trial with 14 days of service of the last complaint/answer that raises a claim that can be decided by jury
• you have a constitutional right to a jury for money damages
• if you do not raise it, it is waived

Question 24

Jury Composition

Answer 24

• Between 6 and 12 jurors
• Verdict generally must be unanimous
• You can strike jurors for cause if they cannot be impartial due to familial or financial interests
• you get 3 peremptory strikes (but you cant strike on race)

Question 25

Judgments: Offer of Judgment

Answer 25

- Offer by the D to settle with the P - Must be given to the P at least 14 days before trial - P then has 14 days to accept or deny - If they deny they will be sanctioned and incur the costs of the D from the date of refusal unless the P does better at trial

Question 26

Judgments: Default Judgment

Answer 26

- if you fail to respond to a complaint - 21 days generally (60 days if waived and in USA), 90 days (if outside USA and waived) - if D is in default, and the amount in controversy is sum certain, P may file an affidavit to show amount due and get it, if sum not certain, P must prove up damages at a hearing and D must have 7 days notice - D can motion to set aside default within reasonable time of entry, and courts will liberally grant it so long as there is good cause

Question 27

Motions for Relief from a judgment

Answer 27

- basically asking not to be beholden to the judgment (last resort) - Cannot be filed more than 1 year after judgment - grounds for relief (merits; there was a merit to the claim that lost due to mistake/suprise/neglect, etc, equity; inequitable to let judgment stand due to fraud/misrep., new facts; new facts have come to light that could not have been discovered earlier that would change the case)

Question 28

Finality

Answer 28

- Res judicata: a claim that has been fully an dfairly litigated cannot be religitgated by the same parties - Collateral Estppoel - an issue that has been litigated and determined cannot be relitigated - Finality Rule: the parties are barred from relitigating claims or issues that parties have fully and fairly litigated to a final judgment on the merits

Question 29

Appellate Jurisdiction: General Rule

Answer 29

- Jurisdiction is generally limited to final orders entered by the lower courts

Question 30

Appellate Jurisdiction: Exceptions

Answer 30

- partial final order: order that resolves some claims against some parties but not all claims against all parties - may be appealed immediately if lower court finds that there is no just reason for delay - discretionary interlocutory appeals: may be appealed if both the lower court and appellate court find doubt about whether the order was correct on a controlling issue of law such that appellate review would materially advance the litigation

Question 31

Appellate Review: Time Requirements

Answer 31

- Must file within 30 days of entering the judgment or interlocutory order (must be filed in lower court)

Question 32

Appellate Review: Standards of Review

Answer 32

- De novo: for a pure question of law - Question of fact: if a lower judge factual findings are clearly erroneous, a judge can set it aside