Sequence of Trial

Opening Statements

Defendant may move for Directed Verdict (Judgment as a Matter of Law)

Either party may move for a Directed Verdict (Judgment as a Matter of Law)

Judge Instructs Jury

Jury renders a verdict

Plaintiff presents evidence

Defendant presents evidence

Closing Statements

Jury Deliberates

Judge enters a judgment on verdict

Enters verdict rendered by Jury

Enters Judgment as a Matter of Law (j.n.o.v)

Motion must be filed by party within 10 days of Judges verdict

Party may only move for j.n.o.v. if they moved for a D.V. at the close of all evidence before the verdict

Pre-Answer Motions
Ability to Raise a Waivable Defense Is a Waivable defense eligible to be raised?
Is the defense claiming any of the WAIVABLE defenses? 1. 2. 3. 4. Personal Jurisdiction Improper Venue Ineffective Process Ineffective Service Process

YES: Proceed to next question

No: These defenses can be raised at any time throughout the trial. Note: Lack of SUBJECT MATTER JURISDICTION can be raised at any time during TRIAL or APPEAL

Timing of Waivable Defenses: If a party wants to raise any Waivable defenses has any other: 1. 2. 3. DEFENSE OBJECTION RESPONSIVE PLEADING

been submitted to the court already?

YES: The rest of Waivable defenses have been waived and may no longer be asserted. (They must be asserted INITIALLY and SIMULTANEOUSLY)

NO: No other movements have been made yet. A Waivable defense may be raised. If more than one WD is to be raised, they must ALL be raised AT THE SAME TIME as each other or they will be waived.

Validity of the Defense (Failure to State a Claim)

Should a 12(b)(6) motion for Failure to State a Claim be granted?
Does the motion challenge the factual allegations of the complaint?

YES: Motion is not proper for a 12(b)(6) because it questions facts and not only whether there is a valid legal claim. 12(b)(6) SHOULD NOT BE GRANTED. It could potentially be converted to SJ motion if supplemented with affidavits or other factual evidence.

No: Proceed to next question.

Legal Challenges: Does the motion: 1. Challenge legal sufficiency of complaint? 2. Set aside conclusory and legal allegations? 3. Ask whether the factual allegations (assumed to be true) show PLAUSIBLE (i.e. NON-SPECULATIVE) entitlement to relief under substantive law?

YES: If the complaint meets all three requirements, it PROPERLY STATES A LEGAL CLAIM. MAY NOT BE DISMISSED UNDER 12(b)(6)

NO: If the complaint does not meet all three requirements, it DOES NOT STATE A PROPER LEGAL CLAIM. Should be dismissed under 12(b)(6) or granted leave by the court to amend the complaint.

Summary Judgment
Should the court enter Summary Judgment against a party?
Movants Party Status: Does the party that is moving for SJ bear the burden of proof on the claim at trial?

YES: Usually going to be the plaintiff. If so, the movant must present the court with SUFFICIENT FACTUAL EVIDENCE to support its claim. THIS WOULD BE RARE (P DOESNT USUALLY MOVE FOR SJ) Proceed to next question.

NO: Usually going to be the defendant. If not, the movant only has the burden of showing the court that NO GENUINE ISSUE OF MATERIAL FACT EXISTS. This may be done through: 1. Affidavits, 2. Other FACTUAL evidence, or 3. Simply showing that the existing evidence fails to support the non-movants claim for relief Once this is done, the NON-MOVANT has the burden of persuasion; Proceed to next question.

Admissible Evidence: Has the party that is carrying the burden of proof supported its claim with FACTUAL INFORMATION that can be reduced to admissible evidence at trial? Note: The information NEED NOT be in admissible form at the SJ stage it just needs to be INFORMATION that can be reduced to admissible evidence once at trial.

YES: Proceed to next question.

NO: If the party bearing the burden of proof has not supported its claim with FACTUAL INFORMATION, the party has failed to meet its burden. Therefore: SJ SHOULD BE GRANTED

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Persuasive Evidence: Does the FACTUAL INFORMATION presented by the party bearing the burden of proof leave some elements of the claim subject to SPECULATION in the face of more likely lawful explanations of the defendants challenged conduct? Matsushita v. Zenith

YES: NO: If there are elements of the claim that are subject to SPECULATION especially in the face of alternate lawful explanations for Ds conduct a court MAY determine that the evidence is INSUFFICIENT to grant SJ. If the Party who bears the burdens evidence supports EACH element of its claim and leaves nothing to SPECULATION then SJ SHOULD BE DENIED, provided that the claim is established to the applicable STANDARD OF PROOF. Proceed to next question.

Standard of Proof: Does the Party who bears the burden of proof at trials evidence prove its case to the degree required under the relevant EVIDENCIARY STANDARD that would be applicable at trial? Anderson v. Liberty Lobby, Inc.

YES: If yes, SJ should NOT be entered against the non-moving party and the case should go to trial.

NO: If no, then SJ should be entered against the party.

Judgment as a Matter of Law

Should the court enter Judgment as a Matter of Law?
Timing: May JMOL be entered at this time? Close of Non-movants Case: Has the non-moving party completed its presentation of the evidence?

YES: If so, proceed to next question.

NO: If not, then a JMOL would be INAPPROPRIATE at this time.

Submitted to Jury? Has the case been submitted to the jury yet?

YES: If so, JMOL may NOT be entered unless the following three requirements are met: 1. 2. 3. The jury has rendered a verdict, A prior motion for DV was made before the case was submitted to the jury, and Within 28 days of the entry of judgment, the motion for DV was renewed as a motion for JNOV a. On the same grounds, and b. By the same party that made the motion previously

NO: If not, then JMOL MAY be entered at this time if appropriate. Proceed to next question to determine if it would be appropriate.

Evidentiary Support: Is the non-movants case supported by sufficient evidence that a REASONABLE JURY could find in favor of that party? Has the non-movant FAILED to present evidence establishing an ESSENTIAL element of their claim?

YES: If so, JMOL against the non-moving party is appropriate.

NO: If not, proceed to next question to see if evidence presented is sufficient.

Do the FACTS and PERMISSIBLE INFERENCES point overwhelmingly in favor of the moving party, such that reasonable people could not arrive at a contrary verdict? The evidence must be viewed in the light most favorable to the party opposing the motion and resolve all credibility issues in the non-movants favor. YES: If so, JMOL should be entered. No: If not, JMOL should not be entered.

New Trial
Should a New Trial be ordered?
Time Limit: Have 28 days passed since judgment was entered on the case?

YES: If so, no new trial may be ordered. GROUNDS Legal Errors: Has a reversible legal error occurred? YES: If so, the court MAY order a new trial. Erroneous Jury Verdict:

NO: If not, proceed to next question.

NO: If not, proceed to next question.

Does the jury verdict go against the GREAT WEIGHT of the evidence?

YES: If so, the court MAY order a new trial. Excessive Jury Verdict: Is the verdict grossly excessive such that is Shocks the Conscience?

NO: If not, proceed to the next question.

YES: If so, the court MAY use remittitur to lower the awarded amount. Forces the plaintiff to accept lower $ or face a new trial. An order for remittitur must be accompanied with an order for a new trial as an option for plaintiff. Federal Courts do not allow additurs.

NO: If not, proceed to next question.

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New Evidence: Has new evidenced been discovered?

YES: If so, could the evidence have been discovered earlier through the exercise of due diligence?

NO: If no new evidence, proceed to next question.

YES: The court should disregard the evidence and NOT order a new trial.

NO: If not, is the evidence MATERIAL? This means is it likely to have an impact on the verdict?

YES: If so, the court MAY order a new trial in light of new evidence.

NO: If not, the court should disregard the evidence and not order a new trial.

Improper Jury Influence: Have any jurors been improperly influenced in such a way as to undermine our faith in the verdict as the product of impartial decision-making that was based only on the evidence presented at trial.

YES: If so, the court MAY order a new trial.

NO: If not, the court should not order a new trial.

Pleadings
Adequacy of the Complaint
Is the Complaint sufficient under FRCP?
JURISDICTION: Does the complaint adequately allege grounds for the court having subject matter jurisdiction. Must have at least one of the following types of jurisdiction.

Diversity Jurisdiction: (If this is alleged), does the complaint reveal the COMPLETE DIVERSITY of citizenship of the adverse parties in the case AND satisfaction of the required amount in controversy? If so, the jurisdictional requirement is met. Federal Question Jurisdiction: (If diversity of citizenship is not alleged), does the complaint allege some federal law or constitutional provision or treaty out which the claim arises? If so, the jurisdictional requirement is met.

Supplemental Jurisdiction: (If neither diversity nor federal question is alleged), does the complaint allege the existence of original jurisdiction over other claims in the case and supplemental jurisdiction with respect to this claim. If so, the jurisdictional requirement is met.

YES: If the complaint meets one or more of the jurisdictional requirements. Proceed to next question.

NO: If the complaint does not meet any of the jurisdictional requirements, it will be inadequate for lack of jurisdiction.

Statement of the Claim: Does the complaint adequately state a claim showing that the pleader is entitled to relief? Special Matters Does the pleading allege fraud or misconduct?

YES: If so, are the circumstances that constitute fraud stated with PARTICULARITY? If they are, proceed to next question. If not, then the pleading is insufficient. FRCP 9(b)

No: If not, then the general standard of pleading applies. Proceed to next question.

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Ordinary Claims: Does the complaint state a claim showing PLAUSIBLE entitlement to relief? Twombly Does the complaint - after disregarding CONCLUSORY LEGAL ALLEGATIONS contain facts substantiating allegations of liability? Iqbal Note: Old pleading standard, see Conley, is no longer valid. Only had to contain a claim that would be valid if true. Much more liberal standard and didnt require the complaint to be plausible. YES: If so, then the pleading standard under FRCP 8(a) has been satisfied. Proceed to next question. NO: If not, then the FRCP 8(a) pleading standard has not been satisfied.

Damages: Does the complaint adequately demand judgment for the relief that the pleader seeks? General Damages Are the damages being sought for injuries that were pleaded in the complaint?

YES: If so, the complaint supports the damage award.

NO: If not, proceed to next question to determine whether the damages should be considered special damages.

Special Damages: What constitutes Special Damages? Natural & Foreseeable: Are the damages the natural, foreseeable, or inevitable result of the injuries or events mentioned in the complaint?

YES: If the damages meet the criteria for natural and foreseeable, they ARE NOT SPECIAL DAMAGES and the complaint will support the recovery of the damages.

NO: If the damages are not natural and foreseeable but rather are UNPREDICTABLE, they may be considered Special Damages and will have to be SPECIFICALLY STATED in the pleading to be pursued.

In addition to the previous requirements:

Permissible Award: Beyond the adequacy of the pleading, it must be considered if a party is awarded MORE than prayed for in the demand for relief. To answer this question, ask: Did the pleading pray for a specific amount of money? NO: If not, then the final judgment can grant as much relief that the party is entitled based on the evidence. If too high, the court can use a remittitur/new trial order.

YES: If so, then relief is limited to the relief prayed for in the demand for judgment. FRCP 54(c)

Adequacy of the Answer

Is the Defendants answer sufficient under FCRP?
Waiver of Service: Has the defendant waived service pursuant to a request under FRCP 4(d)?

YES: If so, the defendant has 60 days to respond (90 days for foreign Ds) TIMELINESS

NO: If not proceed to next question.

Service of Summons: If the defendant WAS served with process, the defendant has 21 days to respond unless granted an extension by the court or through consent of adverse party.

ADMISSIONS Express Admissions: Does the answer explicitly admit an allegation or set of allegations?

YES: If so, those allegations are considered admitted and he defendant cannot introduce evidence seeking to disprove those allegations unless an amendment is permitted.

NO: If not, proceed to next question.

Implicit Admission: Are the allegations to which the defendant does NOT respond? Could come in the form of: 1. 2. Defendant ignoring the allegations Defendant offering a response such as I neither confirm nor deny that allegation

YES: If so, those allegations will be considered admitted and the defendant cannot introduce evidence seeking to disprove those allegations unless an amendment is permitted. FRCP 8(b)(6)

NO: If not, and no express admission is offered proceed to next question to see if defendant has effectively DENIED the allegations in question.

Denials: Are the defendants denials sufficient to deny the allegation made in the complaint? If not, the defendant CANNOT introduce evidence seeking to disprove the ineffectively denied allegation unless an amendment is permitted. General Denial: Did the defendant set forth a general denial?

YES: If so, is there any portion of the allegations that were generally denied that are MANIFESTLY TRUE or that the denying party knew was true WHEN THEY DENIED IT?

NO: If no general denial is involved, proceed to next question.

YES: If so, the general denial will deemed to have been ineffective and the allegations will be deemed admitted. The defendant cannot introduce evidence to disprove the ineffectively denied allegation unless an amendment is permitted.

NO: If not, the general denial is effective to deny all of the allegations to which it pertains.

Lack of Information: If the answer pleads a lack of information to form a belief as to the truth or falsity of an allegation, is the matter presumptively within the defendants knowledge?

YES: If so, then such a response is IMPERMISSIBLE under FRCP 8(b). The response will be treated as an admission. The defendant cannot introduce evidence seeking to disprove the relevant allegation unless an amendment is permitted.

NO: If not, then such a response is permissible under FRCP 8(b). It will be treated as a denial.

AFFIRMATIVE v. ORDINARY DEFENSES Affirmative Defenses: If a defendant seeks to introduce evidence pertaining to an affirmative defense, the question will be, Has the defendant sufficiently pleaded the defense in its answer? FRCP 8(c): Is the defense that is trying to be submitted listed in FRCP 8(c) as one of the affirmative defenses that must be set forth?

YES: If so, it must be set forth affirmatively in a responsive pleading.

NO: If not, proceed to next question.

Substantive Law: Does the applicable substantive law define the defense as an affirmative defense?

YES: If so, it must be set forth affirmatively in the responsive pleading.

NO: If not, proceed to the next question.

Definitional Approach: Does the defendant seek to: 1. 2. Deny the truth of the plaintiffs cause of action, or Provide a legal excuse or justification that absolves D of guilt

Deny the truth of: This would be an ordinary defense. See below for definition.

Provide a legal excuse or justification: This would be an affirmative defense. It must be set forth affirmatively in the responsive pleading.

Ordinary Defense: If the defense is not an affirmative defense by way of one of the above formulations, it will be considered an ORDINARY DEFENSE. It is a defense that logically flows from the plaintiffs allegations. THE DEFENSE DOES NOT NEED TO BE SET FORTH AFFIRMATIVELY IN A RESPONSIVE PLEADING.

Amendments
Is the proposed amendment proper under FRCP?
Amendment as a Matter of Course Is the amendment one the party is entitled to make as a matter of course without leave of the court? FRCP 15(a) Response Permitted If a responsive pleading (i.e. an answer to a claim or answer to a counterclaim) is permitted, then the question is Has the permitted responsive pleading been filed yet?

YES: If a response to the answer HAS been filed, then HAVE 21 DAYS PASSED SINCE THE PLEADING WAS SERVED?

NO: If the responsive pleading has NOT yet been filed, the party may amend the pleading ONCE without leave of the court. NO: If not, then the party may amend the pleading without the courts consent, PROVIDED THAT THE PARTY HAS NOT AMENDED THE CLAIM WITHOUT LEAVE ALREADY. Subsequent amendments will require the courts permission OR the opposing partys written consent.

YES: If so, then it is too late for the party to amend the pleading without leave of the court or consent of the adverse party.

Response Not Permitted If the pleading to be amended is one to which a responsive pleading is not permitted, the question is: Have 21 days passed since the pleading has been served?

YES: If so, then it is too late to amend the pleading without leave of the court or consent of the adverse party.

NO: If not, the party may amend the pleading once as a matter of course without the courts permission.

Amendment Not as a Matter of Course If the amendment is not entitled to make the amendment as a matter of course, SHOLD THE AMENDMENT BE PERMITTED? FRCP 15(a)(2) Consent Has the adverse party consented to the amendment IN WRITING?

YES: If so, the amendment should be permitted.

NO: If not, permission of the court will be required. Proceed to next question.

Leave of Court: Should the court permit the amendment? Will the interests of justice be furthered by permitting the amendment? Must ask the following two questions: 1. 2. Unfair Prejudice Will the adverse party be unfairly prejudiced by permitting the amendment? Bad Faith Is the failure to present the information contained in the amendment earlier due to INSUFFICIENT DILIGENCE, BAD FAITH, or INTENTIONAL DELAY?

YES: If so, justice MAY not be served by the court permitting the amendment. The court can still permit the amendment at its discretion. B/PL

NO: If not, the court should grant the amendment. Conforms to our liberal pleading standards.

Amendment to Conform to Evidence: If the amendment seeks to conform a pleading to evidence presented OR sought to be presented at trial, should such an amendment be permitted? FRCP 15(b) Consent: Have the parties EXPRESSLY or IMPLIEDLY consented to trying the issues NOT raised in the pleadings that ARE raised in the amendment?

Express Consent: Have the parties expressly agreed to try certain issues not raised in the original pleadings but raised in the amendment?

YES: If so, then the amendment is permissible.

NO: If not, proceed to if they IMPLIEDLY agreed.

Implied Consent: To determine if there was IMPLIED CONSENT, the question to ask is: Was any objection raised to the introduction of evidence having NO RELEVANCE to issues raised in the pleadings?

YES: If an objection WAS raised, then NO CONSENT MAY BE IMPLIED. The court will have to resolve at its discretion whether or not to permit the amendment. Proceed to next question.

NO: If no objection was raised and the evidence that was not objected to is relevant to the issue to be brought up in the amendment, THERE IS STRONG EVIDENCE OF IMPLIED CONSENT.

Leave of Court to Conform Amendment to Evidence: Should the court grant an amendment to conform a pleading to evidence in the face of an objection? The question is: Would the objecting party be unfairly prejudiced by permitting the amendment?

YES: If the objecting party would be UNFAIRLY SURPRISED and PREJUDICED in its ability to prosecute its claim OR mount a defense, the amendment should not be permitted.

NO: If the objecting party would not be unfairly prejudiced by permitting the amendment, the court should permit the amendment.

Relation Back of Amendments: If an amendment is proper and has been allowed, does it relate back to the time of the filing of the original pleading? FRCP 15(c)(1)(A) Statute of Limitations Law Does the law providing the statute of limitations permit relation back under the circumstances?

YES: If so, the amendment will relate back.

NO: If not, proceed to next question to determine whether Relation Back is permitted under another provision of Rule 15.

Amendment Involving a Claim or Defense: If the amendment involves a claim or defense, does it arise out of the same CONDUCT, TRANSACTION, or OCCURANCE set forth in the original pleading? FRCP 15(c)(1)(B)

YES: If so, then the amendment relates back to the time of the original pleading.

NO: If the claim pertains to a different C, T, or O, it does not relate back to the original pleading.

Amendment Involving a New Party: If the amendment seeks to change the party against whom a claim is asserted, the answer to EACH of the following questions must be YES for the amendment to relate back. 1. 2. 3. 4. Does the amended claim arise out of the same CONDUCT, TRANSACTION, or OCCURANCE? FRCP 15(c)(1)(b) Did the party to be brought into the action receive NOTICE within 120 days of the institution of the action such that it will NOT BE PREJUDICED IN MOUNTING A DEFENSE ON THE MERITS? Did the party KNOW or SHOULD HAVE KNOWN that it was the intended party in the action? Was the failure to name the party originally due to a mistake? a. Majority Rule: i. Mistake in naming the party = OK ii. Not knowing who to sue and then finding out = NOT OK b. Minority Rule: i. Can name John Doe defendants later once you learn their name

Rule 11
Are sanctions under Rule 11 appropriate in this case?
Violation of Rule 11 Has there been a violation of Rule 11? Pre-Filing Inquiry Did the attorney or self-represented party signing the paper conduct a REASONABLE inquiry into the FACTUAL and LEGAL matter presented in the filing before submitting it to the court? FRCP 11(b)

YES: If so, proceed to next question.

NO: If not, a violation of Rule 11 has occurred. Address questions below to see if other violations occurred, and then see below to determine APPLICABLE SANCTIONS.

Improper Purpose: Has the filing been made for an improper purpose, such as HARASSMENT, DELAY, or to INCREASE THE COST OF LITIGATION? FRCP 15(b)(1)

YES: If so, a violation of Rule 11 has occurred. Address questions below to see if other violations occurred, and then see below to determine APPLICABLE SANCTIONS.

NO: If not, proceed to next question.

Frivolous Legal Arguments:

Discovery
Discoverability
Is the Material Discoverable Under the FRCP?

Relevance: Is the material RELEVANT to a claim or defense of ANY party in the action? Note that scope of discovery has changed since 2000 and doesnt allow fishing for evidence without a court order. YES: If so, it IS discoverable unless the court decides to limit the discovery or it is material that is protected from discovery. NO: If not, it is beyond the permissible scope of discovery absent an order from the court permitting material relevant to the subject matter of the action.

Limitations: Do circumstances exist that require the court to limit discovery of the material in question? The court MAY limit discovery if ANY of the following questions can be answered in the affirmative: 1. 2. 3. 4. Duplicative Is the requested material cumulative or duplicative of material already sought and received? Less Burdensome Alternative Is the requested material obtainable from some other source that is more conventional, less burdensome, or less expensive? Missed Opportunity Has the requesting party had ample opportunity by discovery to obtain the information sought? Cost Surpasses the Benefit Does the burden or expense of the proposed discovery outweigh its likely benefit? a. Use B/PL concept by Learned Hand b. The following factors need to be considered when doing the cost/benefit analysis: i. Needs of the case ii. The amount in controversy iii. The parties resources iv. Importance of the issues at stake that depend on this material v. The importance of the proposed discovery in resolving the issues

Protective Orders: Are there circumstances that would permit the court to limit the discoverability of the material through entry of a protective order? The question to ask is: Is there a need to protect a party or person from ANNOYANCE, EMBARASSMENT, OPPRESSION, or UNDUE BURDEN OR EXPENSE?

YES: If so, the court may enter a protective order for any of the following: See Acing Civ Pro pg. 167

NO: If not, the court will not enter a protective order.

Attorney-Client Privilege
Attorney-Client Privilege Assuming the materials are discoverable and there are no limitations or protective orders imposed on discovery of the material in question, is the material privileged from disclosure. Communication Does the material pertain to a communication?

YES: If so, proceed to the next question.

NO: If not, the information is not protected by the A-C privilege and will be discoverable unless workproduct applies.

Confidentiality Did the communication occur in confidence exclusive of any third parties not party to the privileged relationship?

YES: If so, proceed to the next question.

NO: If not, the information is not protected by the A-C privilege and will be discoverable unless work-product applies.

Between an Attorney & Client: Did the communication involve a licensed attorney acting as such and her client or was the communication among the clients employees generated by or at the behest of an attorney ACTING AS SUCH?

YES: If so, proceed to the next question.

NO: If not, the information is not protected by the A-C privilege and will be discoverable unless workproduct applies.

Legal Advice Was the communication for the purpose of giving or seeking legal advice?

YES: If so, proceed to the next question.

NO: If not, the information is not protected by the AC privilege and will be discoverable unless workproduct applies.

Waiver: If the answer to each of the above questions is YES, was the privilege waived by DISCLOSURE OF COMMUNICATION to third parties outside of the privileged relationship? YES: NO: If so, the privilege has been waived and may not be asserted to prevent disclosure of the material. However, proceed to Part C to determine whether work-product protection applies. If not, the privilege applies to the material and it is not discoverable and NEED NOT BE DISCLOSED.

Work-Product Protection
Work-Product Protection Is the material protected from discovery by the work-product doctrine. Legal Thoughts Does the material contain the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the party concerning the litigation?

YES: If so, that portion of the material may NOT be disclosed under any circumstances. Proceed to the next question to see if any remaining material must be disclosed.

NO: If not, proceed to the next question.

Trial Preparation Were the materials prepared in anticipation of litigation?

YES: If so, proceed to the next question.

NO: If not, the material is not protected by the work-product doctrine.

Preparer of Material Was the material prepared by or for the party receiving the request or by or for that partys representative?

YES: If so, the material is protected by W-P. Proceed to next question to see if court can disclose it anyway.

NO: If not, then the party receiving the request may not claim W-P protection and will have to disclose it.

Substantial Need: Can the party requesting the material demonstrate it has a substantial need for the materials to prepare its case?

YES: If so, proceed to the next question.

NO: If not, the party will not be able to overcome the objection that the material is protected work product.

Other Means Can the party requesting the material demonstrate that it is unable, without undue hardship, to obtain the SUBSTANTIAL EQUIVALENT of the materials by some other means?

YES: If so, the court may order that the work product be disclosed to the requesting party.

NO: If not, the party will not be able to overcome the objection that the material is protected work product.

Joinder
Permissibility of the Claim
Is the Joinder of the Claim Permitted under the FRCP?
Defending Partys Claim against Opposing Party Is the claim in question being asserted against a party who has asserted a claim against the claimant?

YES: FRCP 13(a) If so, the claim may be asserted as a counterclaim. The next question to ask is: Whether the claim arises out of the same TRANSACTION or OCCURANCE as the claim asserted against the counterclaimant. This question is answered by the following logical test: Is there a logical relationship between the claims? Will requiring separate trials result in duplicative multiple litigation.

NO: If not, proceed to next section.

YES: If the claims arise out of the same 1) TRANSACTION and OCCURANCE, 2) existed when the pleading was served, and 3) doesnt require adding a party over whom the court doesnt have jurisdiction, the counterclaim is compulsory and must be asserted, or it will be waived.

NO: If the claims do not arise out of the same TRANSACTION and OCCURANCE, the counterclaim is merely permissive and may be brought at the counter-claimants option. Under authority of 18(a)

Claim against Non-Aggressor If the claim to be joined is not being made against an opposing party asserting a claim against the claimant, against whom is the claim being asserted? 1. 2. 3. 4. 5. An opposing party defendant A Coparty A Rule 14 Party The plaintiff by a third-party A Rule 19 or 24 Party

An Opposing Party Defendant If the claim at issue is being asserted against an opposing party defendant, the claimant is the plaintiff and the claim may be joined with his or her original or existing claim under Rule 18(a). A Coparty If the additional claim is being asserted against a party on the same side of the v., does the claim concern the same TRANSACTION, OCCURANCE, or PROPERTY that is the subject matter of the original claim or counterclaim or assert that the party against whom it is asserted is or may be liable to the claimant for all or part of a claim against the claimant? Crossclaim = Always PERMISSIVE unless the responding Coparty wants to initiate counterclaim against Coparty and same T&O YES: If so, the claim MAY (not must) be asserted as a crossclaim under Rule 13(g). NO: If not, the claim may not be asserted as a crossclaim unless the claimant has already successfully asserted a crossclaim against that party. If they have, the additional crossclaim could be joined to the existing claim under Rule 18(a).

Rule 14 Party If the claim is against an EXISTING THIRD-PARTY DEFENDANT, what is the party status of the claimant?

Third-party Plaintiff (Original Defendant impleading another party): If the claimant is a third-party plaintiff, the additional claim at issue can be joined to the existing third-party claim under Rule 18(a) YES: If so, the claim MAY (not must) be asserted against the thirdparty defendant under Rule 14(a)(3)

Plaintiff: If the claimant is the plaintiff, does their claim against the third-party defendant arise out of the same transaction and occurrence as the Ps initial claim against the third-party plaintiff?

Coparty: If the claimant is a coparty of the third-party defendant, does the claim concern the same TRANSACTION, OCCURANCE, or PROPERTY that is the subject matter of the original claim or counterclaim or assert that the party against whom it is asserted is or may be liable to the claimant for all or part of a claim against the claimant?

NO: If not, the claim is not permitted under Rule 14(a)(3). However, if P has successfully asserted a claim against the third-party D already, the additional claim can be joined to that claim under Rule 18(a)

Plaintiff by a Third-Party Defendant: If the additional claim is by a third-party defendant against the plaintiff, does the claim arise out of the same TRANSACTION and OCCURRENCE as the plaintiffs claim against the third-party plaintiff.

YES: If so, the claim MAY (not must) be asserted against the plaintiff under Rule 14(a)(2)(D).

NO: If not, the claim is not permitted under Rule 14(a). However, if the third-party defendant has already successfully asserted a claim against the P, the additional claim can be joined to the existing claim under Rule 18(a)

Rule 19 or 24 Party: The permissibility of claims against such parties depends on their status in the lawsuit once joined. Determine which of the above-mentioned party classifications properly describes the position of the party in the action and apply that analysis. For example: a person who intervenes under Rule 24 to assert a claim against the existing defendant is a Rule 24plaintiff who becomes a coparty of the existing plaintiff. Thus, claims between the original plaintiff and the Rule 24 intervening plaintiff would be initially evaluated as crossclaims under Rule 13(g).

Permissive Party Joinder

Is the joinder of the party permissible?
Joinder of Defendants: Is the plaintiff asserting against the defendants a right to relief arising out of the same TRANSACTION or OCCURRENCE and involving a common question of law or fact?

YES: If so, the plaintiff may join the defendants in a single action under Rule 20(a).

NO: If not, the plaintiff may not join the defendants together in a single action.

Joinder of Plaintiffs: Are the plaintiffs asserting a right to relief arising out of the same TRANSACTION and OCCURRENCE and involving a common question of law or fact?

YES: If so, the plaintiffs may join together in a single action under Rule 20(a).

NO: If not, the plaintiffs may not join together in a single claim.

Joinder of Non-Parties: Is the party seeking joinder a defending party?

YES: If so, is the party seeking to assert against the nonparty a claim that the nonparty is liable to the impleading party for all or part of the plaintiffs claim against the defending party?

NO: If not, the party may not be implead a nonparty into the action as a third-party defendant under Rule 14(a). See Compulsory Joinder to determine whether the party can seek compulsory joinder of the party through Rule 19.

YES: If so, the claim is proper and can properly be asserted against the nonparty under Rule 14(a). The nonparty becomes a third-party defendant. This may be done without the courts permission within the 14 days of service of the defendants answer.

NO: If not, the party will not be able to implead the nonparty into the action as a third-party defendant.

Joinder by Non-parties: If the party seeking joinder is a nonparty, does it have a right to intervene under Rule 24(a)(2)? Interest in Action Does the nonparty have an interest in the subject action?

YES: If so, proceed to the next question.

NO: If not, the nonparty has no right to intervene under Rule 24(a)(2). See below to determine if intervention is permissible anyways.

Impairment to Interest: Would disposition of the action impair the nonpartys ability to protect its interest?

YES: If so, proceed to the next question.

NO: If not, the nonparty has no right to intervene under Rule 24(a)(2). See below to determine if intervention is permissible anyways.

Adequate Representation of Interest: Is the nonpartys interest adequately represented by existing parties?

YES: If so, the nonparty has no right to intervene under Rule 24(a)(2). See below to determine if intervention is permissible anyways.

NO: If not, AND THE PREVIOUS QUESTIONS HAVE ALL BEEN ANSWERED YES, the nonparty has a right to intervene under Rule 24(a)(2), provided that the court finds the intervention timely.

Permissible Intervention: Does the nonpartys claim or defense have a question of law or fact in common with the main action?

YES: If so, then the nonparty MAY be permitted to intervene with the discretion of the court under Rule 24(b), provided that the court finds the intervention timely.

NO: If not, the nonparty is not permitted to intervene.

Compulsory Party Joinder

Must a nonparty be joined in an action?

Necessary Party Status: Is the absentee party a NECESSARY party under Rule 19(a)? Availability of Complete Relief In the nonpartys absence, is the court able to afford complete relief among those who are already parties to the action?

YES: If so, proceed to next question.

NO: If not, the party is a necessary party. Proceed to the feasibility analysis.

Impairment to Absentees claimed Interest: Would the disposition of the action in the nonpartys absence impair or impede the nonpartys ability to protect its claimed interest relating to the subject of the action?

YES: If so, the nonparty is a necessary party. Proceed to the feasibility analysis.

NO: If not, proceed to next question.

Threat to Existing Parties: Would disposition of the action in the nonpartys absence leave existing parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the nonpartys claimed interest relating to the subject of the matter.

YES: If so, the nonparty is a necessary party. Proceed to the feasibility analysis.

NO: If not, and the previous questions have all been NO, the party is not a necessary party that can be compelled to join under Rule 19.

Feasibility of Joinder If a nonparty is deemed to be a necessary party, is its joinder in the action feasible? Personal Jurisdiction Can the court obtain personal jurisdiction over the necessary party?

YES: If so, proceed to the next question.

NO: If not, then the joinder of the necessary party is not feasible. Proceed to Indispensability to see if the party is indispensable.

Subject Matter Jurisdiction: Will the joinder of the party deprive the court of subject matter jurisdiction over the action or involve a claim over which the court will lack subject matter jurisdiction?

YES: If so, the joinder of the necessary party is NOT feasible. Proceed to Indispensability to see if the party is indispensable.

NO: If not, proceed to the next question.

Venue: Has the necessary party objected to the venue?

YES: If so, does the joinder of that party render venue improper?

NO: If not, proceed to the next question.

YES: If so, the necessary party must be dismissed from the action. Proceed to Indispensability to see if the party is indispensable.

NO: If not, and BOTH personal jurisdiction and subject matter jurisdiction exist, the joinder of the party is feasible and the party MUST be joined to the action.

Indispensability of the Party If joinder of the necessary party IS NOT FEASIBLE, should the court dismiss the action in the partys absence? FRCP 19(b) This is DISCRETIONARY Must analyze each of the following factors to decide whether to dismiss in an action in the absence of a necessary party. 1. 2. 3. 4. Resulting prejudice Lessening of prejudice Adequacy of Remedy Adequate Remedy Elsewhere

Resulting Prejudice What is the extent of the prejudice that would result were the action to proceed in the absence of the non-party, either to the non-party or to the existing party?

Significant: THIS IS SUBJECTIVE. If prejudice appears to be significant, proceed to next question.

Insignificant: A finding of little or no prejudice if the nonparty is left out of the action suggests that the party is NOT INDISPENSABLE. However, proceed to next question to make that decision with a more complete analysis.

Lessing of Prejudice: Can the prejudice to the existing parties or the necessary party that would result from the necessary partys absence be lessened or avoided through: 1. Protective provisions in the judgment 2. The shaping of relief, or 3. Other measures

YES: If so, that suggests that the necessary party MAY NOT BE CONSIDERED INDISPENSABLE; the court could retain jurisdiction over the case and shape relief to protect the relevant partys interests. However, this must be evaluated through the next question.

NO: If not, that would suggest the court should consider the necessary party to be indispensable. However, this must be evaluated through the next question.

Adequacy of Remedy: Will the judgment rendered in the absence of the necessary party be adequate from the plaintiffs perspective?

YES: If so, that suggests that the necessary party MIGHT NOT BE CONSIDERED INDISPENSABLE, if there is no prejudice or prejudice can be lessened or avoided.

NO: If not, that favors a determination that the necessary party is indispensable. Proceed to the next question.

Adequate of Remedy: If the action is dismissed, will the plaintiff have an adequate remedy?

YES: If the plaintiff can obtain adequate relief if the action is dismissed, then that would favor a determination that a party is indispensable and the action should be dismissed.

NO: If not, that suggests that the party should not be deemed to be indispensable and the action should NOT be dismissed.

Preclusion Doctrine
Claim Preclusion (Res Judicata)
Is the claim barred by prior adjudication?
Same Claim Is the current claim the same as a claim raised in the prior action? Identical Claims Are the claims exactly identical?

YES: If so, the claims in both actions are the same; proceed to Same Parties

NO: If not, proceed to next question.

Related Claims: Do the claims arise out of the same transaction or occurrence or series of connected transactions or occurrences?

YES: If so, the subsequent claims satisfy the same claim requirement; proceed to Same Parties

NO: If not, the claims are not sufficiently related to grant preclusion due to earlier adjudication.

Same Parties Does the current action involve the same parties that were parties to and adversaries in the original action? Identical Parties Are the parties in both actions identical?

YES: If so, then the identity-of-Parties requirement is satisfied, proceed to Final Judgment.

NO: If not, then proceed to the next question.

Parties in Privity If a party in the current action was not a party to the original action, is there a relationship between that party and a party in the original action that warrants treating then nonparty to the original action as if it were a party? 1. 2. Substantial Legal Relationship Representation in Prior Action

Substantial Legal Relationship: Is there a SLR that unifies the interests of the nonparty and the party to the initial action? E.g. Parties who have agreed to be bound by prior adjudication

YES: If so, the same-parties-requirement is satisfied. Proceed to Final Judgment.

NO: If not, then proceed to next question.

Representation in Prior Action: Was the nonparty adequately represented in the prior action by a party to the initial action? E.g. Proxies, trust beneficiaries, persons who controlled parties in prior litigation

YES: If so, the same-parties-requirement is satisfied. Proceed to Final Judgment.

NO: If not, the same-parties-requirement is NOT satisfied.

Final Judgment: Was the prior action concluded by a final judgment on the merits? Generally, a judgment is treated on the merits if it is based on the validity of the claims at issue in the case rather than on procedural grounds.

YES: If so, the resolution is considered a final judgment on the merits. The judgment MAY have a preclusive effect if all the previous requirements have been satisfied.

NO: If the case was resolved on PROCEDURAL GROUNDS such as lack of jurisdiction, improper venue, or failure to join a party under Rule 19 it is not final judgment on the merits and will not be subject to Res Judicata.

Issue Preclusion (Collateral Estoppel)

Has an issue already been resolved between the parties in the prior action?

Same Party to be Bound? Is the party to be bound in the current action someone who was a party in the prior action? See Same Parties above for steps to this analysis.

YES: If so, proceed to the next question.

NO: If not, then issue preclusion is NOT appropriate.

Same Party Invoking Issue Preclusion? Is the party invoking the issue preclusion someone who was a party in the previous issue?

YES: If so, proceed to the next question.

NO: If not, then issue preclusion is appropriate ONLY if the party invoking the issue preclusion in the subsequent action: Did not adopt a Wait and See approach by failing to join the prior action when they could have easily done so; 2. If the party bound was SUFFICIENTLY MOTIVATED to litigate in the first case; and 3. There are not several prior inconsistent determinations of the issue so as to make it unfair to bind the party to an adverse determination but not give it the benefit of the favorable one. 1.

Same Issue? Is the issue raised the prior action IDENTICAL in ALL respects to the issue raised in the current action?

YES: If so, proceed to the next question.

NO: If not, then issue preclusion is not appropriate.

Actually Litigated and Determined? Was the issue actually litigated and determined in the prior action, meaning the issue was raised and argued by the parties and decided by the judge or jury?

YES: If so, proceed to the next question.

NO: If not, then issue preclusion is not appropriate.

Necessary to Judgment? Was resolution of the issue in question necessary to the judgment reached in the case?

Outcome Determinative: Would a different decision regarding the issue have affected the outcome of the case?

YES: If so, the determination of the issue was NECESSARY to the judgment and it should be given preclusive effect in the subsequent action.

NO: If not, the determination of the issue was NOT NECESSARY to the judgment and it should NOT be given preclusive effect in the subsequent action.

Uncertain: If it is unclear whether it would have made a difference, refer to the next question.

Multiple Grounds: It is unclear on which of multiple grounds for relief a judgment relies.

YES: If so, then no preclusive effect may be given to the prior determination.

NO: If it is clear on which ground or grounds the judgment relies, the determination of those issues are to be given preclusive effect.