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Stages of a Trial

Retention
Pre-filing
Pleadings
Notice Pleading
What you need to show:
Basis of jurisdiction
Claim for relief
What kind of relief you want
Rule 8(a)(2) short and plain statement of the claim
showing that the pleader is entitled to relief.
Can use legal conclusions in the complaint.
Only chance to throw out a case (demurrer) is 12(b)(6)
MORE CASES GET THROUGH THAN UNDER FACT
PLEADING. Some may be meritless, others may have
merit and would have been lost under fact pleading.
Distinction: Code Pleading = complaint trial
Notice pleading = complaint discovery
summary judgment trial
Result was that much less had to be in the complaint
Rules for Plaintiffs Pleading
8(a)(2) describes it. What you need:
Basis for jurisdiction
Claim on which relief can be granted
Demand for relief.
Rule 9
9b and its two sentences:
When fraud or mistake is alleged, must be more specific
Easy to allege fraud or mistake as a nuisance suit
Lots of acts can look innocent in fraud they might also
BE innocent
State of mind, scienter, can be alleged generally, but
must have facts to support the inference of malice
When Rule 9 might not work can try 8f for substantial
justice promotion, or 12e.
Recognizing the possibility for 12(b)(6)
Defendants Pleading
What can the defendant do when he gets the plaintiffs
pleading?
File a 12(e) motion for clarification plaintiff will
amend, then will have to answer.
File a 12(b) motion to dismiss if denied, then must
answer.
Settle the claim
Answer the claim Rule 8(b), 8(c)
Default judgment Rule 8(d), Rule 55
Answering
No answer default judgment Rule 8(d)
Usually, court is not watching. Will wait for the plaintiff
to ask for a default, then enter the notice (55a)
Judgment of default (55b)
55b1 clerk enters it. ONLY if defendant has not
appeared at all, and if there is no question about the
amount in dispute.
55b2 judge enters it. If the party has appeared at any
time, they get 3-day notice of the default process. A
hearing may be necessary.
Setting aside a default (55c)
For good cause shown. If the judgment has already been
made and entered, it has to be in accordance with 60b,
which is much higher stakes.
Often depends on whether or not the plaintiff will suffer
prejudice.
Denying 8(b)
When a defendant admits something, it is taken by the
court as true regardless of whether it IS true.
Except as above, you dont have to know its a denial to
deny. You can simply not know the answer.
If plaintiff alleges a whole lot in one sentence, should
deny each one separately. Can avoid trouble later.
Affirmative Defense 8(c)
Also known as confession and avoidance from above
Defendant has the burden of proof in affirmative
defenses
12c plaintiff can file for judgment on the pleadings if
the defendant does not raise an affirmative defense.
Even if the defendant does file an affirmative defense,
the plaintiff can still file under 12c, and hope for a 12f
use by the judge that the defense was insufficient
If defendant does not raise an affirmative defense in the
answer, he can try to file later under 15a, when justice
so requires.
Qualified immunity is an affirmative defense
Motions with Respect to the Pleadings
Pre-Answer Motions - Rule 12
Rule 12e asks for clarification of the complaint
Rule 12f stops redundant and insufficient claims, gives
leave to amend
7 motions in 12b for possible dismissal
12g limits using any not yet brought up; 12h limits when
they can be brought up
Least favored defenses waived if not raised in the first
response; dont get at the merits of the case, but may
require initial determination
Lack of jurisdiction (12b2) court does not have
jurisdiction over the person
Improper venue (12b3) a court has power over a
person, but it doesnt make any sense to have the trial in
that court (like when ALL the witnesses are in another
state for a car accident)
Insufficiency of process (12b4)
Insufficiency of service (12b5) given to a child, etc.
Favored Defense can be raised in any pleading, by
motion, or at trial
Failure to State a claim 12b6/summary judgment/12c
Failure to Join an Indispensable Party (12b7)
Most Favored Defense can be raised at any time
No jurisdiction over the subject (12b1)
Rule 11
Counterclaims
Compulsory can be looked at with the same set of
evidence. The counterclaim must be filed along with the
original suit, or it will not be permitted to be filed again.
Use-it-or-lose-it. Efficiency issue.
Permissive if a counterclaim is not compulsory, it is
considered permissive; it must then have independent
jurisdictional support in order to stay in the same
jurisdiction.
Look for the same set of evidence, and look for logical
link between the two claims to determine compulsory v.
permissive.
When in doubt, try it.
Voluntary Dismissal
If plaintiff realizes there is no case, or not enough case
right now
Can only dismiss and refile once 41a1
Can only dismiss before answer or motion for summary
judgment, or if both parties agree to the dismissal (41a1i,
41a1ii)
Sometimes, judges discretion can say the case is too far
along doesnt jive with 41a1.
Prejudice
Can dismiss without prejudice if the defendant has
suffered no detriment meaning can file again later.
Can sometimes dismiss without prejudice, but judge will
make plaintiff pay defendants attorneys fees.
Can always dismiss with prejudice, losing right to file
again later
Amendments
Permission to Amend 15a
Each pasty has right to amend a pleading ONCE after
that only leave of court

David v. Crompton (above) after the screw-up, asked


for leave to go back and amend their answer to deny the
point. The plaintiff said that denial would seriously hurt
their case. Court agreed. Part of the reasoning was that
Crompton had taken so long to deny, and at their own
fault, that the plaintiff could no longer sue anyone else
because the statute of limitations would have passed.
Leave to amend granted generally on an abuse of
discretion standard will they really hurt one sides
case? What does justice require? -15a
Cant prejudice the other party.
Most likely to be granted early on
Relation Back Amendments and the Statute of
Limitations 15c
Relates back to the date of the original pleading
Schwartz v. Gold Dust lady falls, sues several John
Doe parties. Later figures out who one of the parties is,
but its after the s.o.l. She clearly filed before the statute
of limitations, but didnt find the new party until after.
Which should be right?
15c Relation Back:
Allowed by law, OR
New claim or defense arose out of the conduct,
transaction, or occurrence in original suit, OR
Amendment changes party, and
Still arose out of conduct of original suit, as above, and
The party should have known that, but for the mistake,
they would be a party.
Pre-Trial Conference
Actual pre-trial conference with judge or magistrate
governed by Rule 16.
Rule 16 pre-trial conferences and scheduling are at the
judges discretion; judge may use the rule if wanted; not
required.
Rule 16b details the scheduling of the discovery,
conferences, and trial.
Judge, or different local jurisdictions, can use or require
alternative dispute resolution (ADR).
Early neutral evaluation (ENE) neutral party hears all
the evidence, lets them confer about settlement, then
gives evaluation of what will probably happen.
Court-annexed arbitration 3 lawyers sit as panel and
decide a settlement losing party can object within 10
days and demand a de novo review. Parties show high
satisfaction with this; had their day in court.
Summary Jury Trial less formal and abbreviated from
regular trial each lawyer presents summary of
testimony in about an hour. Jury hears, judge present,
litigants must attend. Jury then gives recommended
response. Good incentive for settlement. Cannot be
made mandatory.
Mini-trial
Not in the court, often private
Presented to the litigants
Discovery
REMEMBER STILL HAVE TO STATE A VALID CLAIM FIRST.
However, the loose pleading/discovery rules have led to
a dramatic increase in the number of cases filed.
The Discovery Devices
Rule 26
26a1 Initial Required dclosures
There was no 26a1 until 1993 - before that, discovery
could go on forever, but had to request stuff each time.
1993 they decided to make this more efficient by
requiring disclosure, required everything listed to be
relevant to disputed facts alleged with particularity.
By 2000 rules, you no longer have to turn over initial
information that is harmful to you. Stepped back toward
adversarial.
26b1 The function of discovery
The facts requested have to be relevant to the claim or
defense.
Relevant fact is a fact that the presence or absence of
which makes a conclusion more or less likely. A weight
on the scale.
Relevant evidence does not need to be admissible
evidence. It only needs a reasonable likelihood to lead to
admissible evidence.
26b2 Limits discovery
Cant be duplicative
Cant be disproportionate cost to benefit takes into
account the parties resources, cant be an unimportant
issue
Cant be reasonably obtained by another, more
inexpensive method
Wont be granted if the asking party has already had
ample opportunity to get the information
26c Judge can limit discovery in ways he sees fit,
particularly used with respect to information which is not
privileged and which is necessary but will be damaging
to the party releasing it, such as a trade secret. Can seal
depos, require other methods of discovery, require
simultaneous disclosure to the court, and just restrict the
discovery, among other things. See below under
privilege.
26e2 parties have the duty to supplement information,
excepting depositions.
Depositions Rules 30-32
What: Recorded oral questioning under oath
Who: Any party or person
How: Notice to a party; subpoena to a non-party (Rule
45)
Number: 10 (can be expanded by agreement, by court)
Length: 1 day of 7 hours can be extended by
agreement or court
30b6 Corporations can designate a witness or
witnesses
30d Objecting. Should be non-argumentative, and can
be argued with the judge later. The witness usually
answers, unless it is an issue of privilege
Why would one want depositions? Impeach the witness
at trial, or witness might not be available (might be
dead) by trial
30e Witness has 30 days to correct the record
Strategy points:
Dont depose your own witness, unless they might die, or
want to clear up something at the end of deposition by
the opposing counsel.
Sometimes want your own witnesses deposed by the
other side, if they are really stellar and will help you
settle.
Objections of form are waived if not raised at the depo
itself.
Objections of substance can be made at any time, but
might want to do it in the depo itself to remind yourself
later, and to dissuade the other counsel from going down
that line of questioning.
In IL, cant use a discovery depo as evidence even if the
witness is dead. You have to do a second one as an
evidence deposition.
Interrogatories Rule 33
Not usually helpful written by the lawyers, who try to
be vague
Can be useful if trying to reveal location of additional
docs, or as evidence at summary judgment that a party
does not have evidence.
33d - Can make the documents available to the opposing
party IF
The burden of answering the question would be the same
for the answering party as for the asking party (i.e. no
employee could tell the answer, but would have to go
through every record to find the answer)
The specification of the documents location would be
detailed enough for the asking party to find them.

Answering party may still want to do it themselves, to


make sure that no other important documents are seen
by the asking party.
Document production & Entry Upon Land - Rule 34
34b - Have to be produced in the order as they are kept
in the normal course of business OR they should be
organized according to the category of request.
If non-party has docs, can ask for a deposition with
documents, and then let them know that, if they send
the docs, they dont need to show up for the depo.
Sometimes you just want specification of the
documents, but if that is as much work as producing
them, you might as well ask them to produce.
Bad record keeping not an excuse.
No 34b in this case. It was 1976. Even so, judges often
construe 34b to be normal course of business in the
industry sense, so that sloppy record keeping is not an
excuse.
33 says that they can just produce the documents for
inspection directly if it is too expensive, but this is for
INTERROGATORY ONLY. Dont confuse this with
document requests!!!! No such provision.
Physical and Mental Exams Rule 35
What: Order to submit to physical or mental exams
Who: A party (or person in custody of party)
How: Court order required, issued upon showing of god
cause, but requires that the physical or mental condition
be in controversy
35b Examined party has the right to request to see the
report of the exam done by the other side, but then they
have to turn over all other reports on that condition in
their possession. Any privilege is then waived. Not as
big a deal as it sounds, because you may have lost that
privilege already anyway.
At issue the plaintiff does not have to have put it in
the claim. If the defendant genuinely feels the mental
state is relevant, can argue to the judge that the
doctor/patient privilege should be waived.
Cant be both the sword and the shield.
Request for Admission Rule 36
What: Written request for admission of the truth of any
matter
Who: A party
How: Each matter of which admission is requested shall
be separately set forth; it is deemed admitted if not
answered in 30 days (or with extension).
These can be a big deal if NOT answered.
Limiting Discovery
Protective Orders 26c. Coke case of the trade secret
about Cokes formula. Necessary for the continuance of
the case, but understandable need for secrecy.
Protective Orders are often not allowed in cases of public
health hazards, like in the tobacco litigation sunshine
statutes. This applies even if the case settles before
trial.
Can also limit for proportionality of cost to benefit
26b2.
Exemptions from Discovery Privilege
Stated straight off in 26b1.
Work-product doctrine
Hickman v. Taylor (1947) crucial case. JM Taylor sinks
off the coast and five men die. The company lawyer
interviews them right away, and takes notes and writes
memos. The survivors were then interviewed by the
state, and those records are publicly available and had
by the other side. The other side now wants the company
lawyers notes and memos.
We wish to protect writing stuff down. Therefore,
memoranda are not ever touchable, as they are work
product.
Ordinary work-product vs. absolute work-product?
If you cant write things down, you will not be as good a
lawyer, especially in a complex case.
26b3 came out of Hickman. Things that are prepared
in anticipation of litigation are privileged under workproduct doctrine, and can only be released if the
opposing party has no other reasonable way of getting
the information, in which case the mental impressions
and opinions will be redacted.
Work-product doctrine is NARROW. An opposing party
can ask specific questions about the evidence, and the
attorney will have to give it up. So they cant ask
general stuff, like say all the documents you are using,
but can ask is there evidence that person X was drunk,
and the attorney will have to produce that evidence.
BUT he doesnt have to give it up in last link cases.
Deposing the attorney as a witness is frowned upon, but
FRCP dont make any comment about it.
Work-product doctrine is for the LAWYER and agents, and
thats it.
Client Privilege
Attorney-client, physician-client, psychologist-client,
clergy, and sometimes accountant, spouse, or parent.
See Wigmores elements: separate sheet.
Public policy basis we want people to continue to
communicate, especially as they dont understand what
is illegal and what isnt, and what their rights are.
Privilege assumes that it is necessary to get the
information. Often, this isnt true. A disadvantage is that
attorneys then hide what the client might not have
hidden. But still protects their rights.
If the opposing side asks the right question, the client will
still have to answer it. The only point of privilege is to
admit the lawyer into the clients thoughts.
Cant hide documents by giving them to the lawyer
Communication only is protected.
Experts Rule 26b
Experts are the only witnesses allowed to state their
opinions
Experts are separated from those who will testify and
those who will not 26b4A
Expert witness discovery is limited 26b4B. If they are
not going to be testifying, their information is almost
always privileged, unless the other party really cant get
at the information any other way.
If the opposing party has to use the non-testifying expert,
then they usually pay half the fees
If the opposing party uses a testifying expert, they are
supposed to pay for the time the expert bills for
answering the other partys questions. In reality, there
are usually experts on both sides and each side just pays
his own.
In-house as Experts
A witness can wear two hats be an occurrence witness
and an expert witness
If an expert IS going to testify, then revert to rule 26a2B
for disclosure.
Summary Judgment
Burdens of proof
Burden of pleading always with the plaintiff.
Burden of persuasion who ultimately has to convince
the jury that they have a preponderance of evidence in
the case of civil, evidence beyond a reasonable doubt
for criminal. Usually the plaintiff, but on the defendant
for an affirmative defense.
Burden of production at the point of summary
judgment, who has the burden to convince the judge that
they have enough evidence that a reasonable jury could
find for them.
Burdens can be shifted in summary judgment by
showing not just that a reasonable jury could find for
them, but that a reasonable jury will, and now the other
side has to prove that the jury could find for them.
Rule 56

56a & 56b both sides can file for summary judgment,
with or without affidavits
56c if the judge doesnt find an issue of fact, then he
can grant summary judgment.- defines movant
56e there need to be response affidavits setting forth
specific facts that there is a genuine issue for trial
cannot rest merely on the allegations in the pleadings
56f if one or the other party isnt ready, cant produce
affidavits, the judge can grant them time to do so before
he hears the motion. Generally, this is bad form on the
part of counsel; they should wait until discovery is
finished before motioning.
Affadavits are signed written statements supporting facts
Summary judgment in sum:
Assess the facts:
Judge must view in light most favorable to the
nonmovant
Judge does not go into credibility
Looks only at either admissible facts or inadmissible facts
which are predicted to become trial testimony.
Inference from the facts
Judge must give benefit of all reasonable inference to
nonmovant
Motive can make inferences more plausible, especially
economic motive
Apply the law
Judge decides legal qualifications as would at any point
in proceedings
No need to worry about bias or partys rights
Motions in Limine
Request by one party to meet privately with the judge
about a matter
Often used to discuss the admissibility of an argument or
evidence so as not to get shot down by objection during
the trial.
Final Pretrial Order
Trial & Post-Trial Motions
Directed Verdict (1st part of Judgment as a Matter of
Law)
At close of Ps case if D makes motion; at close of all
evidence if P makes motion
Operative standard is exactly the same as summary
judgment
Why directed verdict and not summary judgment?
Because judge may not want to do all the work for
summary judgment
Because sometimes the evidence doesnt lead anywhere
in testimony, bu that wasnt clear from summary
judgment
Directed verdict and right to a jury trial
At common law, could have:
A Demurrer, which was high stakes dismissed if there
was no evidence, but you lose if there was evidence
New trial granted even if there was some evidence
supporting each side not a judgment
Galloway court finds that new principles only need to
jive with common law; basically, directed verdict is
close enough
That court held that the demurrer is the basis for the
directed verdict.
Judgment n.o.v. 2nd part of judgment as a matter of
law.
Can only be granted if a motion for a directed verdict was
filed earlier.
Why would the judge ever use this?
Political reasons hope the jury finds correctly
Counter: once it goes to the jury, the judge has
legitimized the question of fact. Doesnt it then look
politically worse to reverse it n.o.v.
Much better than a directed verdict on appeal appellate
court then has all the evidence
Probabilistic evidence
What is a scintilla of evidence?
New Trial
Grounds for a new trial
Judicial or legal error like inappropriate exclusion of
evidence, witnesses, or bad instruction
Judge grants an additur or remittur for damages verdict
was too extreme
Newly discovered evidence (if brought within 10 days)
(59b)
Intersection between JAML and New Trial:
Why would the judge pick one or the other?
Matter of gradation
Judge is somewhere in the middle ground, will probably
follow jurys verdict
Judge feels strongly one way and jury rules the other
way, will probably grant new trial
Judge feels its a no-brainer, and jury rules the other way,
will probably grant judgment n.o.v.
After a new trial is granted, the parties are more likely to
settle
Rule 50 governs the use of new trial motions in relation
to judgments as a matter of law:
If judgment as a matter of law is granted, judge also
rules on new trial (50c1)
Defendant may move for new trial within 10 days if
judgment n.ov. for plaintiff (50c2)
If judgment as a matter of law is denied, defendant may
ask for a new trial on appeal (50d)
Court of appeals may decide this on its own (Neely, case
precedent)
Voiding a judgment Rule 60
1 year limit
Mistake, inadvertence, surprise, excusable neglect
Newly discovered evidence which could not reasonably
have been found in time to slide in under Rule 59b
Fraud or misrepresentation of the other party
Any time
No jurisdiction
Super stringent catch-all, especially if ruling is still in
effect but way out of date (like segregation holdings)
Court enforces strictly!

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